Q. Thus it was in practice as follows: In general, the court applied the judgments of the Reich Supreme Court? Is that correct?
A. Yes.
Q. Does this apply especially to those courts whose judgments were reviewed by the Reich Supreme Court?
A. Yes, that, too. For others, sentence which were not reviewed as hi as the Reich Court, in the interest of unity of the administration of justice in general, they kept to the existing precedents handed down by the Reich Supreme Court. I am only mentioning the basic principle.
Q. Do you know that the sentences of the special courts, under certain circumstances, could be reviewed by the Reich Supreme Court?
A. Yes, by means of legal recourse which formerly had been mentioned.
Q. the nullity pleas?
A. Yes, the nullity plea.
Q. Witness, do you also know legal cases, in which the Tribunal was bound to comply with the decisions of the Reich Supreme Court?
MR. LaFOLLETTE: Your Honor, I do not object to the substance of the question, but I do not believe the question is directed to testing the knowledge of the witness about the subject matter. I believe it would speed the a little if Dr. Schubert instead of saying generally do you know of a term, would specifically direct the attention of the witness to the section he has in mind. I think that makes it easier. I do not want to confuse the idea leading, but this will make things go a little faster.
Q. Witness, do you know the order of the 21 February, 1940? Do you have it at hand? It is the so-called Competency Order of the 21st of February 1941. Perhaps you can find Article 36.
We are concerned with a case, Witness, if I may say which came to the Reich Supreme Court by the way of a nullity plea. The Reich Supreme reverse the sentence and it was returned to that Special Court for another decision. In this case was the Special Court bound by the judgment of the Reich Supreme Court in this particular case.
A. Yes.
Q. I must ask to be excused for a moment, but once again I must briefly return to the question of the health sentiment of the people. I believe that there is something which is not quite clear about it yet. It seems, according to the results of the cross-examination so far, as though the socalled, sound sentiment of the people, per se, would hove been sufficient for a punishment. Is that correct, or must there at least have been some facts in the case which though not expressly regulated by law, can be explained by its meaning. Is therefore the sound sentiment of the people subsidiary in the decision?
A. You mean the concept of sound sentiment of the people in the analogy, yes, but not in other matters. One could ******** only according to the sound sentiment of the people. You could not sentence people only according to that. The sound sentiment of the people was the thing that influenced. It was the thing that move emphasis, and gave the accent to the analogy for which of course a comparison of similar facts were proposed. In a certain sense, it was the combining element which made the building firm. Without the sound sentiment of the people, which was always drawn into the discussion, there is the too flimsy construction of facts. By analogy, it would have been almost impossible to keep it together.
Q. Witness, do you know the connection of the Reich Supreme Court to Paragraph 2? Did you follow it? Do you know that the Reich Supreme Court in the application of the new Paragraph 2 was not only hesitant, but often applied it in favor of the defendant?
A. In many circles of judges, also in the Reich Supreme Court, this method of analogy was applied with special precaution.
Q. Do you know, for instance, that the Reich Supreme Court, on the basis of Paragraph 2, had Party offices and officials of the Party and of its affiliated organization, put on the same level with authorities and civil servants in order to subject these people to the increased jurisdiction of civil service law?
A. Yes. I remember decisions of this kind. Anyway, individual courts judged cases of corruption within the party absolutely correctly.
I already mentioned a case this miming which lead to the insult of the judge by Stricher. I would like to add to this that according to the report of this judge, whose promotion was just about the come through, he found it was prevented because of this.
Q. Witness, as presiding judge, you read the Southern German Legal Journals, do you not?
A. Yes.
Q. Is that a good journal?
A. Yes. It is.
Q. Did you happen to read the article of Professor Maier about the prohibition of analogy in the present German legal code.
A. No. I did not read it yet.
Q. I want to read only one sentence. It is a question of the former jurisdiction, up until now, in which there is analogy used.
Paragraph 2 reads as follows: "Real misuse, which however, without amendment was forced, can be found only in the extension of the Nurnberg laws which are despicable in themselves." The author of the article believes with the exception of this one point is not objectionable. Would you agree with him?
A. I do not have the survey of the whole jurisdiction. I would have to have it in order to answer this question. I have made some remarks about the dangers, and about the methods which it offers.
Q. Thank you very much.
I return, again to the direction of your jurisdiction, the guidance of your jurisdiction, so-called. You mentioned especially the guidance conferences. They are conferences between the Prosecution and the judges with the President of the District Court of Appeal about cases.
Do you believe, Witness, that a judge could have avoided such guidance conferences at the time. Do you think he could have said he did not want to take part in these conferences? In other words, what do you think would have happened to such a judge?
MR. LaFOLLETE: It may be within the range of cross-examination, I think in any event, it may appear to be within the range of cross-examination. I am of the opinion that this question, in any event, would only elicit testimony by way of cross-examination other then direct examination which would be considered a mitigation when we consider the acts of a specific judge who may be in the dock.
Certainly the previsions of the law under which we operate do not relieve a man from responsibility because he occupies a position of judge. For that reason, I think the question is not material or does not seek to elicit anything which is material, and does not constitute proper cross-examination.
THE PRESIDENT: The objection will be sustained on the ground that this matter has been covered by previous questions and answers.
BY DR. SCHUBERT:
Q May I ask you the fallowing in regard to this point. Witness, on account of the fundamental difference between the German trial procedure and the American trial procedure, it seems important to me that if a judge came to a guidance conference of that kind, he had the following possibilities open to him--and perhaps even the duty to inform himself about the case to be discussed by means of a complete file of the case.
A. I think that is certain.
Q Did the judge, therefore, know the case already?
A Yes.
Q Thank you. Finally, I want to ask you: In your direct examination, you made certain statements to the effect that justice officials among then also judges in Berlin, knew about certain acts of the SS, the SD, and the Gestapo, about conditions of the concentration camps, etc., or that they must have known about it. Did I understand you correctly that your testimony was limited only to the conditions in Berlin?
A I know only about it in Berlin.
Q Thank you. I have finished my cross-examination.
CROSS EXAMINATION BY DR. DOETZER:
Q Dr. Doetzer for the defendant Nebelung. May it please the Tribunal, I ask for permission to continue the cross-examination. Witness, you have been described by the prosecution as an expert on legal matters. Therefore, I cannot help but refer back to your professional development.
Do you know, in an official way, one of the defendants? Did you know him in your official capacity?
MR. L. FOLLETTE: Certainly with this number of defendants in the dock, I think it's an imposition. It would be more proper to ask him which defendant he has in mind. I think it would be a more clear direct examination. By asking, "Do you know one of the defendants," is not in my opinion, very good cross-examination. He may know all of them or know of all of them.
THE PRESIDENT: Since the witness has had an opportunity to look over the different defendants in the dock and is able to answer the question, I don't see any reason why he shouldn't be asked the question. I don't know what counsel has in mind, of course.
BY DR. DOETZER:
Q I am posing the question whether the witness knows one of the defendants or all of the defendants, whether he met them in an official capacity.
A I did not meet them personally. Did you mean personally?
Q My question was clear. Did you meet them in an official capacity?
A No.
Q May I continue now? Witness, do you know one or all of the defendants personally?
A Personally? No.
Q Do you know about the journalistic activities--the writings-of one or all of the defendants?
A Of course.
Q For example, the writings of the Defendant Schlegelberger?
A Yes.
Q Thank you. Are you, in the legal field, active as a writer?
A No.
Q You mentioned, witness, that you had written an article in which you had asked for the abolishing of the death penalty. May I ask you where this article was published?
A If I remember correctly, in the Berliner Tageblatt, (Berlin Newspaper.)
Q That is not a legal journal, but a newspaper.
A Yes, that is apparent from the question.
Q In a legal respect did you publish anything in other newspaper?
A There may have been one or more articles in the course of time, but I don't remember it; it wasn't very important; it wasn't very regular.
Q Witness, in direct examination you mentioned that during your career as prosecutor and as local counselor; you had been employed in those two capacities. May I ask you when you conducted tho last proceedings as judge?
A In March or April, 1930, before the Nazi time.
Q May I ask you whether you conducted any judicial proceeding of any kind after 1933? Until the collapse of the Third Reich.
A No.
Q Even not in your capacity as government counselor?
A No.
Q Not even -
A I was an arbitration judge, in the arbitration tribunal, but that was before 1933, from between 1930 and 1933; the Deutschen Theater, Lessing Theater, in Berlin; I acted in that capacity two or three times.
Q Thus, you wore not with administrative tribunal.
A No.
Q May I then ask you which fields you worked on in the local courts?
A Penal procedure.
Q In Berlin were the penal procedures filed according to letters, according to letters of the alphabet, or according to the field, subject matter?
A If I remember correctly, at that time it was according to the letters of the alphabet; I cannot say that with absolute certainty any more.
Q I can understand that. Witness, would you please describe to me what activity you as legal counselor after 1930 carried on in detail after 1933. You already described it in detail, but I am concerned with the details.
A I was concerned with theaters.
Q Before 1933, too?
A Yes.
Q When you had been removed from your original position, what activities did you carry on in the police department?
A The traffic division, legal advisor on traffic matters; later when there were lone matters from the local district, construction of waterways, strike matters; everything that was concerned with the legal department of the waterways.
Q Were you an ordinary legal advisor, or a special one?
A Regular advisor.
Q Then, you told the prosecutor in the direct examination in September 1935, on the basis of paragraph 6 of the Civil Service Law you were dismissed. I would like to ask you what was the content of that paragraph.
MR. LA FOLLETTE: I think he gave that yesterday; I don't know what that has to do with this line of questioning. I object to the questioning. I have no objection to counsel questioning the capacity of any export witness, but I think this is irrelevant.
DR. DOETZER: I believe that the question about the context of paragraph 6 has not been answered at all. However, I will be glad to be instructed; I do want to say with absolute certainty that I for one did not hear it. I would like to point out that this question was put by me with the intention to show why the witness may have been dismissed.
THE PRESIDENT: We will save time if the witness at the moment can give us the contents of paragraph 6 by virtue of which he was dismissed, let's have it stated; otherwise, we will pass to some other question.
BY DR. DOETZER:
Q Witness, may I therefore repeat the question; I ask you to state the contents of paragraph 6 of the law for restitution of professional civil servants, on the basis of which you were dismissed in the year 1935.
A The exact wording, I cannot quote at the moment.
Q May I ask you to give me the meaning of that paragraph?
A Official civil servants may be retired, if it is necessary for the reconstruction of professional service. I don't know the exact wording any more, but you can find it out easily.
Q I don't want to do that at the moment; I don't think it would be fair if I would go over now and read the paragraph to the witness, and would have to show him that it contains something quite different from what impression he has. Witness, in the direct examination, or in the cross-examination you stated that you were a member of the SPD, the Socialist Party of Germany, and the Association of judges, the Republican Association of Judges. Could you tell me when you were a member of the Socialist Democratic Party of Germany and for how long you have belonged to tho Republican Association of Judges?
A Since 1927 in the Social Democratic Party, and the Judges Association soon after it was founded; I don't remember the year.
Q In the Republican Association of Judges did you have a leading position?
A No.
Q Did you in the Social Democratic Party of Germany distinguish yourself as a jurist and did you put yourself at the disposal of the party as a lawyer?
A No. I just remember that in a journal, which the representative Heilmann published, I wrote about penal procedure, and in view of my experiences in the central office for the fighting against indecent writings, which was part of the legal office, and as director of the office for defamatory literature.
Q When did you leave the Social Democratic Party of Germany?
A It was after the decision of the Reichstag; at that time I spoke to the local leader, whose name I don't remember and together with another friend I told him that that we were leaving formally, and at the same time that we felt we were still a part of the party. At that time he accepted this declaration expressly.
Q Perhaps you can tell the Tribunal and me in what year this happened? Only in order to clarify it.
A 1933.
Q 1933?
AAfter the enabling act of 1933.
Q You left the party, and what were your reasons?
MR. LA FOLLETTE: I object to the question because I feel that it is not material or relevant whatsoever.
THE PRESIDENT: The objection will be sustained.
Q Witness, from 1939 until 1941, you again returned into the service of the administration of justice, as you mentioned, against your will. I would like to know what tasks were assigned to you from 1939 until 1941, in which office you served? I did not understand that correctly this morning.
A I answered that already. In the judicial office of the Economy Division of the Police Department.
Q I thank you. Witness, if I understand you correctly today you are of the opinion, that you have repeatedly stated that before 1933, under the Weimar Reich Constitution, the independence of the Tribunals and of the judges was in effect theoretically and practically?
A Yes.
Q May I, therefore, ask you whether in this opinion of ours, you considered the criticism of your own party, the Socialist Democratic Party of Germany, this criticism of the German administration of justice?
A Yes, criticism was within the principles of the democratic state. The essential thing is how far criticism could lead to the abolishment of the independence, actually.
Q Do you know from your own memory, and as a member of long standing of the Socialist Democratic Party what the requirements of the Socialist Democratic Party were under the Weimar Reich Constitution toward the administration of justice, and do you still remember in what constitution these regulations are written down?
A You mean the constitution of the German Land?
Q I assume you do not remember, Witness?
A No.
Q I shall refrain from reading to you from the party program of the Socialist Democratic Party. Witness, in the direct and cross examinations you described the first measures of National Socialism against German administration of justice. You emphasized centralization. I ask you now whether, in case, centralization, the so-called Reich administration of justice would not have been carried out under the Nazi; that is, the Nazi had not carried it out but had maintained the administration of justice in the individual hands, would they not have had the same results?
A Centralization of the administration of justice, I have said that already repeatedly, it made it easier for National Socialism to achieve their aims.
Q Please excuse me, I have to say this to you for reasons of fairness because the approach I made is according to your knowledge of National Socialism. Even if they had maintained the administration of justice in the individual hands, would that have changed anything in the final results; that is what I am asking you?
A I do not believe so, but I said already it is important that the centralization make it easier. It would have been more difficult otherwise but in the nature of National Socialism, it would have been possible to, by way of the administration of justice over individual hands.
THE PRESIDENT: Now, that having been answered three or four times, let us have a different question.
Q Witness, in several connections we have discussed ordinary jurisdictions here and we have differentiated ordinary jurisdiction from special jurisdiction. I believe, however, that the opposition which we have done so far could have the fault, seen objectively, that a real picture of that which we call ordinary jurisdiction in Germany has not been painted; therefore, I may ask you, Mr. President, what does one understand in Germany by the term ordinary jurisdiction regular jurisdiction. This question is very difficult for you to answer. As for any one else, but you may understand I must put this question to you.
A Ordinary jurisdiction is the jurisdiction which by means of, which is granted by the constitution; and as for permanent regulation of legal procedure, there has been established -- this organization has been established by the constitution and organizes courts and according to whether all legal cases of a certain kind had the same value and are judged. If they concerned a certain group of people, and are brought before a definite legal authority and are decided by the legal authority.
DR. SCHUBERT: May it please the Tribunal I do not know whether in the American legal procedure it is permitted that an expert during the cross examination answers a question which has been submitted only the next day after he has thought it over again. For reasons of fairness I would like to ask the high Tribunal, to inquire of the Tribunal, therefore I repeat, is it permissible that an expert witness in a cross examination defers the answering of a very difficult question; that he postpones it for 18 hours?
MR. LaFOLLETTE: I do not know what the question was. I thought the witness answered the question and I thought he had been answering it all day and yesterday also. This last question I assume is an address to the court for the purpose of inferring that the witness is dishonest. I think that is a little out of the way in attacking the credibility of the witness, and I ask that the question be completely withdrawn.
THE PRESIDENT: I did not get the impression it was an insinuation against the witness. I am unable to say whether the witness has sought to defer his answer or whether there will be any difference. It seems to me to speak for itself. That question has been answered.
DR. SCHUBERT: The witness answered a question but the answer made it apparent that he could answer it only on the spur of the moment without necessarily thinking about it. If the formulation which he made, if he made that a basis of another question may I ask you whether the entire administrative justice, whether in as far as I know is unknown in America?
Q Witness, do you think that comes under ordinary jurisdiction?
A Yes, I do.
DR. SCHUBERT: May it please the Tribunal, I will now have to turn to another set of questions, and I would be grateful to you, also in the interest of the witness, if I would be permitted to continue my cross examination tomorrow morning.
MR. LaFOLLETTE: If your Honor pleases, I do not know what is going to happen tonight. I think this witness is a little tired. I was certain the Court would permit me to redirect examine this witness.
However, whatever we do we cannot finish tonight, but I do not know whether the cross-examination can or not.
THE PRESIDENT: It is not the last, I think Dr. Kuboschok wants to be permitted to examine the witness.
MR. LaFOLLETTE: Well, there seems to be three more.
THE PRESIDENT: Yes.
MR. LaFOLLETTE: It seems to me we have been at this long enough today and I certainly will be at it tomorrow.
THE PRESIDENT: It is apparent we cannot finish the cross examination tonight. However, it did seem to me desirable to complete the cross examination by this particular Defense Counsel, but it will take very much time so maybe that rule should not be followed. I do not suggest that the Counsel be permitted to proceed and that we go into something extensive. Probably we can inquire how much additional time the Defense Counsel will require.
DR. SCHUBERT: I estimate another hour.
THE PRESIDENT: We will recess at this time, but speaking for myself, the Counsel should be admonished that nothing like an hour's additional time will be permitted, and the Counsel should try to confine his questions to a much more limited time.
MR. LaFOLLETTE: May I just say this at this moment: I have attempted to be agreeable throughout this trial and to be fair. I realize the testimony of this witness, to some extent, affects each and every defendant in the dock, but when this experience is over, I hope either by agreement with the Defense Counsel or by some ruling of the Court, that there may be some method of designating people to do the cross examination for at least groups of the defendants in certain categories, and some limitation of time to be consumed. I certainly do not want to do anything which will deny any defendant a fair trial, but a constant extension of time by cross examination which repeats the same field, I do not believe serves to the best interest of the defendants. In fact, some defendants may be injured, as already appears today, by questions which are asked by other Counsel. It seems to me the defendants would be interested in working this out themselves in some way.
THE PRESIDENT: We will recess until 0930 tomorrow morning.
(The Tribunal adjourned until 0930 hours, 21 March 1947.)
Official transcript of the American Military Tribunal in the Matter of the United States of American against Josef Alstoetter, et al., Defendants, sigging at Nurnberg, Germany, on 21 March 1947? 0930-1630, Judge Carrington T. Marshall, presiding.
THE MARSHAL: Persons in the courtroom will please find their seats. The Honorable, the Judges of Military Tribunal 3. Military Tribunal 3 is now in session. God save the United States of America and this honorable Tribunal. There will be order in the court.
THE PRESIDENT: Mr. Marshal, have you ascertained if the defendants are present?
THE MARSHAL: May it please your Honors, all the defendants are present in the courtroom with the exception of Rothaug and Engert, who are absent due to illness.
THE PRESIDENT: The proper notation will be made.
DR. CONRAD FERDINAND WILHELM BEHL - Resumed CROSS EXAMINATION (Continued) BY DR. DOETZER: (Attorney for Defendant Nebelung) May it please the Tribunal, may I continue the cross examination.
I assure you that by concentration, I shall try to finish the cross examination in a short period.
Q Witness, if during my questioning yesterday. If I was rather sharp in the manner of questioning, I ask you to regard that as a reaction of my being very tired, and to excuse me.
A I accept your apology.
Q As far as I remember, we had discussed the complex of questions regarding the special courts and the regular courts and we had finished this complex of questions. I repeat my question. As far as I remember, we had finished the complex of questions regarding special courts and special jurisdiction and ordinary jurisdiction courts in the direct examination by the prosecutor as well as during the cross examination. As far as I remember, and according to my conception, the organization of the courts was also discussed. I mean the question of the competence of the German tribunals of the local courts, of the district courts of appeal, and of the Reich Supreme Court on the one hand and of the special courts and of the Peoples' Court on the other hand.
In the same connection the question of the organization of the prosecutions was discussed in detail. May I ask you now what is the difference in German law between the aim according to which a German public prosecutor or a German judge is working, and whether this existed between the prosecutor and the judge according to the aims of the work of the prosecutor and the judge.
A The prosecutor was subject to the directives of the Ministry of Justice, which at the time of the republic, the principles were in according with "parliamentary principles, in contrast to the directives which were given after the real parliament was abolished in the Third Reich. The judge was, as I already said at the beginning of my statement, subject only to the law.
Q I thank you, witness. I would like to put the question in a more precise manner. Did the public prosecutor, as well as the judge, regarding the finding out of the truth, did they have the same task; the only difference was that one was bound by directives and the other one was independent.
A Yes, that is correct.
Q Therefore, the German public prosecutor must have regard to the subject matter as well as regarding the person of the defendant; he must have investigated everything which is charging the defendant as well as those things which would acquit him.
A That is correct. I remember a republic prosecutor from my time in Berlin who described the public prosecution in a rather exaggerated manner the most objective institution in the world I emphasize that this was an exaggeration.
Q Witness, we discussed the question what the German judge, according to the Weimar Constitution and the legal regulations was independent and free from all directives, or it was supposed to have been that way. During the cross examination you have stated that basically he was not bound by the decisions of other or higher courts. May I ask you, according to the Weimar Constitution, to what was the German judge bound?
A The laws.
Q I would like to ask you further, the Weimar Constitution says that the German judge is bound by the laws. Did that mean only a law promulgated in the regular manner, or did the judge also have to obey other legal observations which he had to make the basis of his decisions. I am thinking of the common law. If I understand you correctly, the German judge was bound by common law. In German legal life did common law play an important role in the German law system?
A No.
Q Was the conception of the highest German tribunals and the overwhelming majority of German lawyers under the leadership of Professor Gerhard Anschuetf, whom you mentioned, and who is known throughout the wo** Was the judge bound by the laws; was their conception that this fact mean the judge has to apply every law which has been promulgated in a regular manner?
A Yes, he has to test whether it is constitutional.
Q I did say regularly promulgated laws; then he has to apply it. I understand you correctly?
A Yes.
Q May I then leave this group of questions and go over to the People's Court. As far as I remember, witness, you described the People's Court as a special court.
A Yes.
Q I would not like to quarrel with you about this. However, I would like to ask you only this specific question: Whether this court was described as an ordinary court in the Law Gazette.
A The law which introduces it says *************************** of the procedure. The expression ********************I cannot find here.
Q Witness, may I help you perhaps. Perhaps you could look not at law of 1934 but at a later law.
A The Peoples' Court is an ordinary tribunal in the meaning of the laws, the constitution of courts.
Q. Witness, you expressed the opinion that the People's Court was created because possibly the Reich Supreme Court's infamous case regarding the Reich stag fire did not decide in the way in which the Nazi had expected it. In citing this, you intimated that possibly there may have been other reasons or points of view for the creation of the People's Court. Do you know of any suck reason?
A. I can only suppose what they were.
Q. May I help you. I would like to tell you that in theory and practice the fact that the Reich Supreme Court was the reviewing authority as well as the first instance in penal matters, and they were often attacked in this capacity or criticised , and not from only the people who were outside but even from men who were directly in positions close to the Supreme Court, and in very important positions. I would like to formulate my question in a precise manner. If the memoirs of the German Chief Reich Public Prosecutor, Evermaier, who is probably internationally known, his memoirs regarding his service to the law; if you will read then you may understanding why I have to ask you this question. Do you remember that Ebermaier stated just this fact; that he examined it extensively and that the serious doubts -- he pointed out the serious doubts which existed and which are due to the fact that a Tribunal of the highest authority, a review court as well as a court of the first instance, and which are due to the fact that both are review courts as well -
A. (Interposing) So, yes, I know the writings of Ebermaier, the memoirs. I would like to say something in regard to the People's Court, something in connection with the statement of the Defense Counsel ; that Evermaier, about whose personality I know from his son who is a very good friend of mine, and I know quite a good deal about it. In his criticism, that however thought of putting place of the Reich Supreme Court, a court with 3 lay judges, among whom there are high party functionaries of the Nationalist Socialist Party, which he rejected and representatives of the Wehrmacht, the armed forces, that is not the case.