Q From your experience, Professor, can you say that you experienced that the defendant Joel in the interest of the Ministry of Justice was especially active in such dealings with the police?
A Yes, I can confirm that.
Q Now, I would like to refer to document NG 699, that is Exhibit 480 and it concerns the correspondence between you and several participants about the Elias case. In this document there is also some notes and a letter by Dr. Joel. Apart from this letter by Joel which is contained in the document of October 3, 1941, did you receive any other letters which did not go through official channels and therefore were not included in the files either?
A I seem to remember that I got about two or three letters?
Q Can you remember the contents of these letters?
MR. LAFOLLETTE: I would like to object to any showing that these letters are not capable of being produced before the witness as to contents. I don't know whether the letters are to the witness or to Dr. Joel or who. I object because it calls for the contents of a letter which has not been shown.
DR. FREDERSDORF: May I state briefly, my question is concerned with the point whether the witness apart from the letters produced here, received two or three other letters, which supplement the contents of this letter.
THE PRESIDENT: Counsel objection is based on the fact that no showing has yet been made as to where those letters are now and he suggests that you inquire as to whether those letters are now in existence before you go into the matter of their contents by verbal testimony. You can inquire of the witness as to where those letters are now, if he knows.
BY DR. FREDERSDORF:
Q May I then change the question accordingly, whether it is known to you where these letters are now which are not contained in the document.
A I could not tell you that.
Q May I ask now if you still remember the contents of these letters?
A.- I recall something to the effect that in these letters, the question was that these cases which the police had taken over in the Protectorate were supposed to be returned again to the Reich Ministry of Justice. These are my vague memories.
Q.- Can you perhaps remember that the defendant Joel in one of those letters criticized the fact that the appointees of the People's Court had not been appointed in accordance with the Constitution since the Gestapo deputized for the Chief Reich Prosecution?
Mr. LaFOLLETTE: I object to it, Your Honor, because it is very definitely leading. I object to it because it's a leading question.
THE PRESIDENT: Frame your question so that you don't give the witness the answer as a part of your question.
BY DR. FREDERSDORF:
Q.- In the letter contained in Document 699, the defendant Dr. Joel writes that in his opinion the transfer of the proceedings before the People's Court to the Chief Reich Public Prosecutor was to be expected. Did Obergruppenfuehrer Heydrich subsequently return the files of the Chief Reich Public Prosecutor to him in all cases with the exception of those against Elias and Klapka?
AAs far as I know, yes.
Q Do you remember that this was through the negotiations of Dr. Joel with Heydrich?
A I assume so.
Q Thank you very much. I have no further question.
BY DR. DOETZER (for the defendant Nebelung):
Q Mr. Under-Secretary, are you a friend of the defendant Nebelung?
A No.
Q Do you know the defendant Nebelung personally?
A Well, it's difficult to say what you mean by "personally." Quite seldom, on the occasion of larger meetings, I saw the defendant Neblung.
Q Did you meet him officially?
A "Got to know him" is putting it too strongly. During my time in office, he took part in consultations of business, but I may be mistaken too.
Q Did the District of the Oberlandgericht Braunschweig belong to the Districts of the Oberlandesgerichts which was under you?
A No.
Q Was the defendant Nebelung a member of the Party, and did you know anything about it?
A I cannot say anything about that.
Q Did the defendant Nebelung become prominent in a manner which Under-Secretary Freisler or the later Minister of Justice Thierack regarded as an "embodiment of the will of the Party"?
A I can only say that Neblung, and it's perhaps not polite if I say so, but I don't know anything about him at all. I can't tell you what he did.
Q In your capacity as Under-Secretary, did it become known to you whether President of the District Court of Appeals Nebelung in Brunswick objected together with his judges against interference by certain agencies, and in what manner he did so?
MR. WOOLEYHAN: Your Honor, I object to that question as leading and revealing the intended answer.
THE PRESIDENT: The witness said he didn't know anything about the defendant Nebelung. Do you know the answer to the question that was asked you?
THE WITNESS: Yes, Your Honor. My answer that I did not know anything about Nebelung referred to the fact that about his personal attitude and his opinion of the entire Party and State system, I do not know anything. If I may give a preliminary answer to this question, I do remember that in the Brunswick affair, Nebelung was active. I could testify something about that. May I answer the question, Your Honor?
THE PRESIDENT: Yes.
THE WITNESS: I remember that in Brunswick, difficulties had been created -- it must have been about 1935, I believe -- the difficulties consisted of the following:
that within the Administration of Justice there were two groups: On the one side, the President of the District Court of Appeals; on the other side, the Chief Public Prosecutor. If I remember correctly, I believe that the Chief Public Prosecutor thought that he could get the support of the SS. That was the cause for attacks against the activity of the judges in Brunswick. I recall that the then President of the District Court of Appeals --- and that must have been Nebelung -- objected against these interventions very strongly and in a masculine manner.
DR. DOETZER: Thank you very much.
DR. BRIEGER: Dr. Brieger for the defendant Cuhorst. May I have the permission to ask the witness, Dr. Schlegelberger a few questions on behalf of my client, Cuhorst?
BY DR. BRIEGER:
Q Mr. Schlegelberger, I have before me the so-called "Fuehrer Information Bulletin" of 1942, No. 66, which was introduced as Exhibit 197 by the Prosecution on 1 April 1947. Since these are only a few lines, may I read them to you again briefly.
"Reichsminister of Justice. Fuehrer Information 1942, No. 66.
"So far the sexual intercourse of a Pole with a woman could be punished by a court only if it were by force, that is rape, (or if it were perpetrated with a girl under 14.) The special penal regulations for Poles now makes it possible also to punish Poles who have violated the honor of the German woman by having sexual intercourse with a German woman with her agreement. In such a case, the Special Court in Stuttgart has now pronounced a death sentence.
"Berlin, 3 July 1942, By Order and in Charge of the Business."
Dr. Schlegelberger, your defense counsel, Dr. Kubuschok at the time that is on the first of April, already made some statement in regard to this matter. Nevertheless, I would like to ask a few questions of you about this which in my opinion do not constitute a repetition be cause today you are here in the witness stand under oath, and naturally the statements of your defense counsel were not made under oath.
Do you know anything as to whether this information left the Ministry of Justice?
A I consider it absolutely impossible. At the time my defense counsel, naturally, on the basis of the information which I gave him, stated that apparently here this was a draft which was not even signed, so it never left the Ministry. I want to state the following as to the reason for that which was of course not the typing error which you have stressed. The reason was for my present attitude that I do not know anything about such a decision, and that I do not believe at all that such a sentence was pronounced, but that it was simply a mistake made by a referent. And in this draft I signed just as little as many other drafts which were submitted to me.
Q Mr. Schlegelberger, would you assume at all that the draft originated with a referent if I shall tell you some of the stylistical peculiarities? "So far the sexual intercourse of a Pole with a woman could be punished by a court only if by force or on a girl under age was undertaken." Now let us take the case that this was to leave the Ministry. Was that the style in which your referent made the drafts?
MR. LA FOLLETTE: I object because it's a leading question of his own witness, Your Honor. Certainly he's got all the answer in there.
THE PRESIDENT: He may answer.
BY DR. BRIEGER:
Q You may answer, Dr. Schlegelberger. I had pointed out my stylistic misgivings, and please give me your answer, Dr. Schlegelberger.
A I had no occasion to correct the matter as to style. If I was not going to put it out, I was not interested in the style.
Q You would also not assume that this letter went to Hitler?
A I have already stated I assume that it did not leave the Ministry at all.
Q And for what reasons you no longer remember?
A Well, may I again repeat. I consider it impossible that such a sentence was pronounced at all.
Q Thank you very much.
THE PRESIDENT: Do any other of defense counsel desire to continue with direct examination? Apparently not. The direct examination may be deemed to be closed.
MR. LAFOLLETTE: If Your Honors, please, if there is some way of proceeding. I would like the Court to permit me to begin the cross examination in the morning, or at noon if Dr. Kubuschok has anything. I realize that it is a little unusual. On the other hand, I would like to gather together a little of the material so that I could think out what I want to do. So far I have done nothing but take notes. If the Court objects, of course, or if the Defense Counsel object, I will proceed, but if we could have some documents or something of that nature this afternoon -
THE PRESIDENT: Dr. Kubuschok, have you some of the documents to which you referred which might be introduced in evidence now -in order to fill out the afternoon?
DR. KUBUSCHOK: The document books in the English edition, as far as I have been informed, were completed today, but not quite in the German as yet. Of course, I do not want to burden the Tribunal with reading all of the documents. I only want to refer to some of them and read only parts from some of them. Therefore, I need sometime for preparing the document books; I wanted to do that tonight, so that I could start with the document books tomorrow. May I then make the following statement in regard to Mr. LaFollette's suggestion. I understand very well his wish to have a certain time to prepare the cross examination. In accordance with my duty I have to point out the following: My client is seventy-one years old; when I saw him during the last summer he had a severe heart disease, and I know that his health is very unstable. I was much surprised that during the examination he could stand it so well, and I assume that the extraordinary tension in which a defendant is in such a condition has stimulated him to such an extent; and I am afraid if the examination lasts too long his powers would be reduced. Therefore, for personal reasons, I would appreciate it if the cross examination could start tomorrow morning.
THE PRESIDENT: Your argument would seem to suggest that we should not require him to continue with the examination this afternoon? Will you find it necessary to have the defendant Schlegelberger on the witness stand when you are introducing your documents to which you have referred?
DR. KUBUSCHOK: No. He can leave the stand immediately after the re-direct is completed.
THE PRESIDENT: We will recess until tomorrow morning; and the cross examination may commence tomorrow morning; thereafter, the document books may be introduced after the witness has been excused. We will recess until 9:30 tomorrow morning.
(The Tribunal adjourned until 1 July, 1947, at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Josef Alsteeter, et al, defendants, sitting at Nurnberg, Germany, on 1 July 1947, 0930-1630 Justice James T. Brand presiding.
THE MARSHAL: Persons in the court room will please find their seats.
The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THL PRESIDENT: Mr. Marshal, you will please ascertain if the defendants are all present.
THE MARSHAL: May it please your Honors, all the defendants are present in the courtroom with the exception of defendant Engert, who is absent due to illness.
THE PRESIDENT: The defendant Engert has been excused. The proper notation will be made.
We should state to the Counsel for the defendant Engert that this morning, a few minutes ago, medical reports were delivered to the Tribunal which we have not yet had the opportunity to examine; they will be examined in the near future.
You may proceed with the cross examination of the defendant Schlegelberger.
CROSS EXAMINATION BY MR. LA FOLLETTE:
Q Dr. Schlegelberger, I would like to ask you first just a couple of further questions about your live span in Germany, and your work in the Ministry. You are from Koenigsberg?
A Yes.
Q And, your father was a merchant at Koenigsberg?
A Yes.
Q And, on the 23rd of November 1934, you celebrated your fortieth year of service in the Ministeries of Justice of Germany or of the Land: is that correct?
A 1934?
Q Yes; that is the record I have. When was it you celebrated the forty years in service?
A The forty years of service we celebrate subsequent to our time -- as Referendar. As soon as a civil servant becomes a Referendar, from then on the forty years begin to count. In 1934, that cannot be quite correct: I was appointed Referendar in 1897, so it must have been in 1937.
Q Now, I believe also that you testified during Minister Guertner's time you spent practically all of your time with -- certainly up to the time of the war, with civil matters in the Ministry; is that correct?
A Yes.
Q And when did Roland Freisler come into the Ministry as an Under-Secretary?
A In 1934 when the Prussian and Reichministry of Justice were merged.
Q And, during that time, I think you testified, that Freisler spent most of his time in connection with the administration of penal justice and you, under Guertner, worked on civil matters?
A No, that is not quite correct. Freisler did deal with penal matters, that is correct; and, I dealt with civil matters, that is correct, too; but Guertner took care of both.
Q Yes. But, under Guertner, your field was civil matters and his was -- and Freisler's was penal?
A Yes.
Q The People's Court was established when, in 1933 or 1934?
A I cannot say that with certainty; the law creating the People's Court dates from 1936, but it had already been established before;
however, I do not recall the year.
Q But, it would be correct to say that during all of this time that the People's Court was in existence, it exercised no civil jurisdiction, did it!
A Yes, that is correct.
Q Do you recall that on or about 20 July 1934, you addressed a letter to the Reichswehrminister and the Reichsluftfahrtminister saying that:
"I have the honor to forward to you for your kind consideration the enclosed of an ordinance of the President of the People's Court, dated 18 July 1934, concerning the composition of Senate of the People's Court.
"The President of the People's Court has informed me that the distribution of members to the various Senate was undertaken in agreement with the gentlemen concerned.
"I would be grateful if you will telephone Ministerial Councillor Dr. Mettgenberg by return should any objection to the regulation exist. If I am not informed of any objections by the 24th of the month...."
That was written on the 20th.
"then I shall assume that the regulations-shall come into force through the President."
Signed for -- signed, "Dr. Schlegelberger."
A No, I cannot recall that letter. May I ask you to show it to me, please.
MR. LA FOLLETTE: Your Honors, please, I would like to have document NG-1029 marked for identification only as Prosecution's exhibit No. 517. May I send it to the Secretary General to be marked for identification only.
Dr. Kubuschok, I will have a German copy in here in just a few minutes. In the meantime if you want to go to the witness and look at the original exhibit, please do so.
THE PRESIDENT: Will you give us the identification of the document again!
MR. LA FOLLETTE: Yes, your Honor, NG 1029, Prosecution's exhibit 517.
DR. KUBUSCHOK: May I make a remark in regard to this question-quite a general remark please. Certainly the Counsel who is conducting the cross examination has the right to show documents to the witness, or to the witness who is the defendant, but I believe that one must have misgivings about the fact that documents which have not been made known before, are submitted as an exhibit, at the same time, but what, in practice makes the time limit, which has to be given in regard to documents, will be made illusory.
Mr. LaFOLLETTE: If Your Honors please, although precedent is not always controlling if it is not reasonable, the practice that I am not introducing has been followed in Military Tribunal No. I.
I point out also that this form of cross-examination has to do, of course, with checking the credibility of the witness and his memory, and sometimes definitely for the purpose of impeachment. Now, the whole benefit of such impeachment by documentation would be lost if any 24 hours' notice is required. I am simply offering the document for identification. It is contemplated, according to all the practice that I have observed and which is followed here, that if the Court considers it later to have been properly identified in otherwise admissible, then on rebuttal the exhibit will then be referred back to and offered in evidence. I don't think that the 24-hour rule is controlling; as a matter of fact, the 24-hour rule would completely defeat the purpose of cross-examination for the purpose of impeachment.
THE PRESIDENT: The Tribunal has no question concerning your right to have the document identified and to use it at this time as a part of your cross-examination. If questions arise as to its admissibility, it is possible that 24 hours should be allowed before final receipt of the exhibit. Is that in accordance with your idea?
Mr. LaFOLLETTE: Exactly; it is in accordance with my idea, Your Honor. And I further, at least for the present, unless the Tribunal desires otherwise, do not contemplate offering the exhibit as evidence during cross-examination but in rebuttal, when I have the right to offer evidence. However, I want it identified, and then the 24 hours' notice, I contemplate, will be given by saying to all defense counsel that exhibite which have been identified by certain numbers will, beginning with the rebuttal, be offered in evidence.
THE PRESIDENT: You may proceed.
Mr. LaFOLLETTE: Thank You.
I have here ten English copies, which should be enough. Here are four for the Tribunal, two for the interpreters, and two -- those are all English -- two for the English court reporters.
Then will you distribute these two to the interpreters, two to the German court reporters, and the balance to the defense counsel.
Does the Secretary-General require a German copy as well as an English copy for his archives?
THE SECRETARY GENERAL: No.
Mr. LaFOLLETTE: Just an English copy? You don't have one yet?
THE SECRETARY GENERAL: I have the one; I will require others for the archives.
Mr. LaFOLLETTE: All right; here is another English copy for the Secretary General.
BY Mr. LaFOLLETTE:
Q.- Does the exhibit contain your signature, Dr. Schlegelberger, or is it signed by you in typing on the document?
A.- Here it is signed only in typing.
Q.- In writing? And it is on the stationery of the Ministry of Justice?
A.- On the photostat? Yes.
Q.- Yes, yes. I mean, the photostat indicates that the letter was written on the stationery of the Ministry?
A.- Yes; yes.
Q.- Would you just examine for a minute, with me, the list of the proposed gentlemen to be lay judges? I find Obergruppenfuehrer State Councillor von Jagow. Do you find that?
A.- Yes.
Q.- And Gruppenfuehrer Mayer-Quade?
A.- Yes.
Q.- And Kreisleiter Worch?
A.- Yes.
Q.- I won't go through the rest, but if you will glance through the exhibit I think we can agree that there are considerable names of SS or SA leaders in that list. Is that right?
A.- Yes.
Q.- Just as a matter of thinking, in connection with the independence of the judiciary, one element of it is that the judge shall be selected as far as possible without regard to any group or any background which would give him a predisposition one way or the other towards any facts that come up before him. Is that a fair statement?
A.- Yes, but may I add something in regard to this document?
Q.- Surely.
A.- This letter from the President of the People's Court is distribution of business; it is a distribution of the judges to the different Senates and not a selection of those persons who are supposed to be active as judges at the People's Court. That selection had already been made when the President of the People's Court sent this letter. Now the question was only to distribute than to the different Senates. This distribution of business was called to the attention of the Minister, and this letter of the 20th of July follows that. And this letter, I would like to say, is an example of the things that I stated yesterday.
It did happen, now and again, that when I was Acting Minister I signed such technical letters even in Freisler's field if, for some technical reason, he did not have the time to sign such a letter himself. The letter is dated during a time when he was on vacation, and that probably explains it.
Q.- Yes. However, the letter was addressed to the then Minister of War and the Minister of the Air Force in existence at that time.
A.- Yes.
Q.- And they must approve these men. That was the reason it was sent to them, was it not?
A.- No; no.
Q.- No?
A.- No. I believe there is an error there, Mr. Prosecutor. That was not the point, but the distribution of business, the distribution of the individual persons to the individual Senates.
Q.- Yes, but you were advising the head of the Army and the head of the Air Force of this distribution; is that correct?
A.- Yes, naturally.
Q.- Yes; thank you.
Now, on the 21st of October, 1941, do you recall receiving a letter-probably quite routine -- from Minister Lammers, which was a document signed by the Fuehrer in respect to the re-appointment of honorary members of the People 's Court, ant it contained a list of the judges who were to be sent? I will hand you a copy of the list in just a moment.
I will hand you document Ng-723, which I ask to be marked for identification as Prosecution Exhibit 518.
Mr. LaFOLLETTE: There are four copies of the German for the interpreters and the reporters, and then here are the English to be distributed as before.
MR. LAFOLLETTE: May it please the Tribunal, if Your Honor please, may I address the Tribunal a minute? I believe if it is agreeable to the Secretary--General, we might perhaps follow the practice in here which I believe is being followed in Tribunal 1; that these exhibits which are marked for identification are not of course in evidence, but they remain in the custody of the Secretary-General until they are called back for the purpose of being introduced. I will send this back to the Secretary General.
That exhibit is written on the stationery of the Reich Minister and Chief of the Reich Chancellery, and addressed to tho Reich Minister of Justice. Is that correct?
A. Yes.
Q. And it contains the signature of Dr. Lammers and states, "Herewith I respectfully forward to you the document signed by the Fuehrer in respect to the reappointment of Honorary members of the People's Court." And I find among the list of lay judges, five SAleaders and three SS-Leaders. Do you find that many there?
A. I will have to count it first, but I will be glad to do so.
Q. Thank you.
A. Anyhow, there are several of them.
Q. And again on this matter of the independence of the judiciary, I think we are agreed that independence also is measured to some extent by the capacity for being objective by the people who constitute members of the court. Is that not correct? Did you hear me?
A. If I may make a statement about that, the People's Court was constituted in such a way that it consisted of professional judges, and lay judges. From the very beginning certain definite political and military organizations had been given the right to make suggestions with the purpose of having these organizations represented in the People's Court. For that reason, if one knows the organization of the People's Court, one cannot be surprised at all, that the members of these organizations are appointed as judges.
Q. And that was true, of course, in 1934, too, was it not?
A. Yes. That is connected with the organization of the People's Court as a whole.
Q. You were, of course, in the Ministry when the Nuernberg Laws, the laws identified as the Nurnberg Laws were passed, were you not?
A. Excuse me, I did not understand your question.
Q. You were, of course, in the Ministry when the laws on race which are generally identified as the Nurnberg Laws, were adopted?
A. Yes.
Q. That was in 1935?
A. 1935, yes.
Q. With reference to the activities in Nuernberg in 1936, you do remember a conversation with President Doebig of the Oberlandesgericht on the manner in which the property was being transferred from Jews in Nurnberg in 1938? That was in Berlin.
A. Of course.
Q. That was in Berlin.
A. There was a discussion in Berlin.
Q. At that time, was one of the defendants in this case, Dr. Rothaug, a judge of tho Special Court down here in Nuernberg?
A. Yes.
Q. Was Streicher editing his paper down here at that time?
A. I suppose so.
Q. I am sure from what you said on direct examination that you did not find it very interesting reading, but you from time to time did see that paper, did you not, Doctor?
A. In the direct examination, I did not speak about Streicher's newspaper at all.
Q. I realize that, but unless the court admonishes me to stop, maybe you will answer my question. Did you see it?
A. Yes.
Q. Yes?
A. I know the "Stuermer" only from looking away. On the streets, on the bulleting boards, I saw it hanging. That was enough for me.
Q. I understand that, but you did know it was published down at Nurnberg?
A. Yes.
Q. And, it was published in 1938, is that right?
A. Yes, certainly, I believe so.
Q. Did you know one of these other defendants, at least his position? Was Defendant Oeschey judge of the Special Court, Nuernberg, in 1938, or do you remember?
A. Oeschey, I saw for the first time here. I do not remember that I ever heard his name before that.
Q. But you did, of course, know of the Defendant Rothaug before 1938? You know that he was here?
A. Yes.
Q. Now I think you testified that after President Doebig reported to you, there was an investigation down here of the forced transfer, and there was disciplinary action taken against the notaries who acknowledged those transfers?
A. When Doebig came to see me, we only discussed that he desired to have an act of legislation or of administration which would relieve the judges of responsibility in this case. As far as I know, there was no disciplinary question at that time at all.
Q. I think you testified that later the Defendant Joel, as a result of action taken within the Ministry either by Dr. Guertner or yourself, did come to Nuernberg and investigated those transfers, is that correct? I thought you said that on direct examination.
A. Yes. Joel was a member of the Goering Commission. Goering was the chief of the Commission which was supposed to investigate the entire Streicher manipulation, and Joel had been appointed to this commission.