Q Were you of the opinion that Under Secretary Schlegelberger, as compared with Under Secretary Freisler, was more moderate?
MR. WOOLEYHAN: May the Court please, I object to this question on the ground that it asks for a personal opinion of this witness about matters that he has already stated he knows nothing about.
THE PRESIDENT: The objection will be sustained.
BY DR. BEHLING:
Q. I establish, therefore, that you spoke to Under Secretary Schlegelberger because you thought wrongly here that he was the General Deputy of the Reich Minister of Justice and that he was the deputy of all questions.
THE PRESIDENT: The English translation is not coming through Proceed.
BY DR. BEHLING:
Q. During the discussions at the Ministry of Justice on these Nurnberg problems, was there, as you said under direct examination today, did the Ministry of Justice not give a definite point of view of its own, but did they refer you to a settlement which was due shortly; did Dr. Schlegelberger tell you that a judge and every judge dealing with transfer of property should himself be able to deal with any entry into the registry or to refuse to carry it out.
A. This morning I reported in detail on these events, and I have nothing to add.
Q. You no longer remember that point?
A. I gave my views and I said that Dr. Schlegelberger asked me to leave the decision in every case to the discretion of the judge.
THE PRESIDENT: That is exactly what the witness testified to this morning, and surely ho will not testify any different.
BY DR. BEHLING:
Q. I am now coming to the next point which concerns the Special Courts. According to Paragraph 11 of the law concerning Special Courts, the Special Court decides, makes its decisions by three judges working together.
Paragraph 2 of that law reads as follows: The presiding judge and the permanent members as well as tho regularly deputized, in case one of the judges is prevented on tho basis of the law, concerning the distribution of work and cost, of the 24th of November 1937, by the president of the district court of appeal, are appointed from within the judges' under his jurisdiction. Witness, you sold that the evil which occurred under Rothaug's presidency were known to you, and that frequently you tried to do something about them. Were you not able on account of the order of the law which I quoted just now, of 24 November, 1937, were you not able to redistribute activities in such a way that Rothaug could have disappeared?
A. This morning I said that Rothaug, when I assumed my office in October, 1937, was already the presiding judge of the Special Court; and that he enjoyed the special favors of tho political authorities. If I had removed Rothaug from that office at my own initiative, it would merely have meant that I had prematurely dug my own grave. The support which Rothaug enjoyed was far superior to what I enjoyed. For me there was only the possibility to try to have him transferred from Nurnberg. I tried it a great many times, and I nearly succeeded for in 1941, I think it was in 1941, there was an inquiry from the Ministry asking whether Rothaug would be prepared to work at a Special Court in the east. That inquiry was a relief to me, and I asked Rothaug to come to see me and I asked him; he was indignant that he should be asked to do such a thing. I tried to persuade him, but I tried to persuade him to follow the suggestion from the Ministry, and I finally asked him to think it over. The next day Rothaug came to see me and said that for health reasons, and particularly because of some stomach trouble, he was unable to take up that department. Until then I did not know anything about Rothaug's stomach troubles. I was convinced that in the interim Rothaug had seen the political authorities about his moving, and I informed the Reich ministry of Justice that Rothaug was not prepared to take up that department. In the meantime I heard, in effect, political elements had got busy to prevent Rothaug's transfer, calling him the judge who had done such a lot for the Special Courts in Nurnberg.
Q. Witness, I would like to hold back my questions because Rothaug's defense counsel would like to come to those. I should only like to know whether concerning Rothaug's transfer you spoke to Under Secretary Schlegelberger.
A. Whether I discussed the matter with Schlegelberger I do not know. I did repeatedly discuss the matter with Minister Guertner and particularly discussed it with the gentlemen of the personnel department; I discussed it with Master and Guertner, and it is also possible that I discussed the matter with Schlegelberger, but I cannot remember for certain, for Schlegelberger was after all not competent for those questions.
DR. BEHLING: Thank you. I have finished my cross examination.
BY JUDGE BRAND:
Q. Mr. Witness, you gave very clear testimony to the effect that in the course of the investigation of a criminal case it was the duty of the prosecutor to produce whatever evidence he could, either for or against the prospective defendant; and you said that he was entitled to the aid of the police in securing evidence for the protection of the defendant's rights; did you not?
A. Yes, I did.
Q. Would you say from that that the public prosecutor was under the law entitled to have the aid of the SS and the SD in presenting evidence for the protection of the rights of the defendant?
A. The provisions were to the effect that the public prosecution, the public prosecutor could avail himself of the aid of the police, as laid down by law, and it originates from the days prior to the existence of the SD and the SS.
Q. Yes. I understand, but do you as an export understand, that under that law and after the SS and the SD were organized, that the law applied to them, and that the prosecutor was entitled to their aid in protecting the rights of the defendant?
A. The police formations varied; in general police cases, it was the criminal police that dealt with them; and in other words, those authorities which were purely SS agencies dealt with them; but it is altogether possible that in penal matters of a political character were regularly, the indictment being submitted by the Secret State Police; also that the State Police also supplemented other investigations; but as I said earlier on, the public prosecutor generally himself made his investigations or used the aid of the police and every public prosecutor who attached importance to clarify facts in an objective natter, probably in practice, on the basis of experiences made with the police, carried out interrogations himself in person.
Q. You were speaking of the law and not of the general practice, were you not? You were saying that the law required that the prosecutor fairly represent the rights of the defendant?
A. Under the law the police was an auxiliary of the public prosecution, and, therefore, just as the public prosecutor himself had the opportunity to establish facts against and in favor of the defendant.
Q. You did not intend to say then, did you, that these special police had in actual practice assisted the prosecutor in presenting evidence favorable to the defendant?
A. No.
THE PRESIDENT: Does any other Defense Counsel desire to cross examine this witness? Before beginning any further cross examination, we will take our usual recess.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
DR. SCHILF (Counsel for the defendants Klemm and Mettgenberg): May it please the Tribunal, may I be permitted to put one more question to the witness, which was caused by the question put to him by Your Honor about the position of the public prosecution to the police?
THE PRESIDENT: Yes.
BY DR. SCHILF:
Q. Witness, may I ask you to tell us very briefly what, in your opinion, constituted the connection between the public prosecution and the police?
A. The police, just as the prosecution, had the duty to contribute to the clarification of the legal facts.
Q. Was the police bound to directives by the prosecution?
A. According to the existing provisions, certainly, but that, in practice, unfortunately, changed later on.
Q. You mentioned already, witness, that this was so because, in practice, the privilege of giving directives on the port of the prosecution was not always taken into consideration and, contrary to that, the practice involved that the prosecutor, as far as his interrogations were concerned, carried them out himself.
A. Yes.
Q. You mentioned auxilliary officials of the prosecution. May I ask you, as far as you are able to do so, to explain that as far as police formations were concerned; that is to say, who were the auxilliary officials of the prosecution and, in principle, who was bound by the directives coming from the prosecution?
A. Auxilliary officials of the prosecution, on the basis of existing provisions in Germany, were all police officials. And according to existing provisions, they were obliged to abide by the directives of the prosecutor. However, anyone who was in practice at the time knows that in the course of years--that is, from 1933 on-that provision, more and more, was confined to a provision on paper. I personally have experienced that the police disregarded directives coming from the prosecution, and that they did not carry out requests coming from the prosecution, or did carry them out in a manner which was not satisfactory or could not be satisfactory to the prosecution, so that the prosecution saw itself obliged to resort to the clarification of matters themselves.
Q. My question has been misunderstood. I meant to ask you what police organizations, what formations of the police, in principle, could be considered auxilliary officials of the prosecution. Though you have stated that this applied to every police official, that is quite known, and I would like to ask you to explain to the Tribunal what police formations wore covered by that. You mentioned already the Criminal Police, Kriminalpolizei, that is detectives. What other formations?
A. There was the Security Protective Police, Schutzpolizei; also the Gendarmerie, that is, the rural police, those would be the main police fromations which could be considered auxilliary organs of the functionaries of the prosecution.
Q. By not mentioning the SD, the entire SS, you lead me to the conclusion that these two organizations were not auxilliary organs of the prosecution.
A. The SD, in my opinion, was not a police organization but a Party organization; and in the same manner the SS, even though members of the police also belonged to the SS, was not an organization of the police or a formation of the police and should not be confused, for instance, with the Criminal Police, or Schutzpolizei, the Security Police--that is, the SS--but an institution or a formation of the Party, which in fact, however, based its actions on the police and was organized similarly.
Q. But neither technically nor in practice was it ever charged by the prosecution to conduct investigations in penal matters?
A. Nothing was known to me that a prosecutor ever turned to the SD or the SS if they wanted clarification. Whether that actually happened in practice, I don't know. I myself have not made any such observation.
Q. You have also been a public prosecutor at times, after 1933, if I understood correctly?
A. From 1935 until 1937 I was general prosecutor in Nurnberg, the Reichsanwalt, that is, Chief of the Prosecution, at the District Court of Appeals in Nurnberg.
Q. And, based on this experience as general public prosecutor, you could say that the SD, or the group generally called the SS, were neither auxilliary organs of the prosecution technically nor, in practice, ever used for investigations?
A. I do not know of any one case of that kind. Whatever occurred secretly is beyond my knowledge. Whether the prosecution in an illegal or irregular manner used these organizations, that I do not know, I could not state that under oath. It seems probable, if one knows and has experienced the fact that a prosecutor, in person, was a member of the SD--which is relatively completely new information that I received recently--of course, there it is easy to think that a prosecutor of that type, in a manner which is not quite regular, worked together with the SD.
Q. But that would have been an illegal exception?
A. Correct.
DR. SCHILF: Thank you; I have no further questions.
DR. DURCHHOLZ (Counsel for the defendant Barnickel): May it please the Tribunal, may I put some brief questions to the witness?
BY DR. DURCHHOLZ:
Q. Witness, after you have explained this morning for what reasons the defendant Rothaug, as Chief Reich Prosecutor, came to the People's Court, I should like to put the following questions to you in this connection. Do you know Dr. Barnickel, from where do you know him, since when, and in what juridical activity have you known him?
A. I know Dr. Barnickel from my activity in the Bavarian Ministry of Justice. Dr. Barnickel at that time was senior prosecutor at the District Court Munich 2; that is, he was the Chief of the Prosecution Office for the District Munich 2. Also, as the official in charge of penal law at the ministry of Justice, a position which I had since 1930, I had official contact with Dr. Barnickel.
Q. Is it anything extraordinary if Dr. Barnickel-who, since 1934, was a senior public prosecutor at the District Court Munich 2, at that time 50 years of age-if he, on the basis of his special knowledge and his good qualifications, in the year 1938, was appointed Chief Prosecutor of the Peopl's Court, and especially if I point out to you that the then superior of Dr. Barnickel, the District Court President, Dr. Kuennewein, in Munich, had recommended him already in the year 1932 for the appointment to the Reich Supreme Court?
A The fact that Dr. Barnickel was appointed Senior Prosecutor at a point such as District Court Munich indicates that he not only had very high marks on his examinations, but that he also enjoyed a very good standing and reputation for his work. Therefore, considering the age of Dr. Barnickel, there was nothing extraordinary that he was suggested or recommended for appointment and finally transferred to the People's Court. If I remember correctly, he was first transferred there in the same position and not immediately promoted to the Chief Prosecutor. I don't know that for sure but at any rate I did not see anything extraordinary in the fact that a man like Dr. Barnickel, according to his position and his age, was used in the People's Court.
Q After the unification of administration of justice in Germany, was there a tendency that the members of the Prosecutions, especially in the higher offices, should be kept in their positions?
A It is certainly true that after unification of justice within Germany there was a change of conditions concerning promotion of officials of prosecutions. In Bavaria there was a constant change between service for the prosecution and service as judge. The assessors who showed particularly good results on their examinations were at first appointed Prosecutors, and, depending on the service, after a few years they became judges. If they did good work there, they were returned into a higher position in tho Prosecution, and so forth. There was a constant change in Bavaria between service as a prosecutor and as a judge. In Prussia that was different, and when the administration of justice was unified and centralized, the Prussian system gained more and more and was carried out. Therefore the position of the Bavarian Senior Prosecutors who, if the administration of justice had not been centralized, would have left their position as prosecutors by that time and would have become judges again, remained now longer in their positions.
A compromise was established by the fact that some prosecution offices at some courts were increased. That is, their income group was increased.
Q Was it possible in the year 1938 to assume of Reich Minister Dr. Guertner that he would only promote political activists or qualified specialists and call them to the chief prosecution at the People's Court?
A I know Reichminister of Justice Dr. Guertner on the basis of my work in the Bavarian Ministry of Justice, over which he presided until the year 1932 when he was called to the post of Reichminister. I knew him very well, and I can testify that Dr. Guertner at all times maintained the principle of capability and appointed officials on the basis of their technical qualifications.
Q Could one assume that Dr. Guertner would be a bulwark of justice?
A That could certainly
Q MR. WOOLEYHAN: May it please the Court, I object to this question as being completely irrelevant to the case.
THE PRESIDENT: The objection will be sustained.
BY DR. KIRCHHOLZ:
Q Witness, do you remember that Dr. Barnickel, toward the end of 1944, was transferred from the People's Court to the Prosecution of the Reich Supreme Court?
A I remember that because there was a telephone call by Chief Reich Prosecutor Rettler to the Reich Supreme Court, who informed me that Reich Prosecutor Barnickel was transferred from the People's Court -- was supposed to be transferred from the People's Court to the prosecution of the Reich Supreme Court.
Reich Chief Prosecutor Rettler did not quite like this, because Reich Prosecutor Barnickel lacked the particular experience which was necessary for that kind of work and during the last few years had dealt only with political penal cases, whereas in the Reich Supreme Court other legal questions played an important role. Therefore Dr. Barnickel would have the same problems as a newcomer at the prosecution of the Reich Supreme Court.
Q Was a Reich Chief Prosecutor to be considered a leading official?
A Leading officials, in the sense of German civil service organization, were the chiefs of the authoritative offices. That is to say
MR. WOOLEYHAN: I object to that question. It calls for a clear personal opinion of the witness as to whether he was a loading official. There is no foundation for asking such a question.
THE PRESIDENT: The objection will be sustained.
BY DR. KIRCHHOLZ:
Q Witness, was the Reich Prosecutor bound by the decisions of the Chief Reich Prosecutor?
A It is correct that a Reich Prosecutor had to abide by the directives of the Chief Reich Prosecutor. That can be seen already from the organization of the Reich Prosecution office, and is also based on tho law, according to which the Chief Reich Prosecution is a purely administrative office where every subordinate has to abide by the directives of his superior.
Q Did that directive exist before 1933, after 1933, and does it exist now as the same?
A. Yes, it was violated at all times in the same manner.
Q Still today?
A Yes.
Q Is it known to you whether at the Reich Supreme Court there was any contact between Prosecution and the bench?
A Contact between the prosecution in the Reich Supreme Court and individual penal chambers existed inasmuch as certain legal questions were at times discussed purely theoretically. A discussion of jurisdiction such as has been introduced by Minister Dr. Thierack, and in a sense it had to be carried out in lower courts, did not exist at the Reich Supreme Court. There were only conferences of the presiding judges of the penal chambers with the first presiding judge of the Reich Supreme Court which had the purpose to inform the first president about particularly important cases which had occurred and, if necessary, to discuss these matters in order to achieve uniform jurisdiction of the five and later four different senates. A representative of the Chief Reich Prosecution did not attend these discussions. How far the first President -- the first presiding judge of the Reich Supreme Court got in touch with the prosecution, I do not know.
Q A last question: Did the Reich Prosecutor or Chief Reich Prosecutor have anything to do with the superbvision of concentration camps?
A The supervision of penal execution institutions was not in the hands of the Prosecutor of the Reich Supreme Court or the People's Court. They were not an institution of the administration of justice, and therefore not subordinate to the supervision.
DR. KIRCHHOLZ: I have come to the end of my examination.
THE PRESIDENT: Are there any other defense counsel who desire to cross examine this witness?
DR. KOESSL (Counsel for Defendant Rothaug): May it please the Tribunal, I ask to be permitted to conduct the cross examination on the basis of the ruling of this Tribunal, after conference with my client Rothaug.
THE PRESIDENT: May I inquire at this time whether any other defense counsel want to cross examine the witness?
I think under the rulings heretofore that Dr. Koessl is entitled to interview his client before cross examining this witness. I would like to inquire how Dr. Rothaug has progressed in his illness.
DR. KOESSL: According to my information, there was no change in the illness, at least not so far that the defendant Rothaug could attend sessions. With respect to the witness who is supposed to be cross examined now, I should be in a position to conduct the cross examination tomorrow morning without having to wait for the transcript.
THE PRESIDENT: Under those circumstances you will be accorded the right to postpone your examination until tomorrow morning at nine-thirty. In the meantime, I am wondering whether the Prosecution has some way to fill in the time. Maybe you have some further direct examination?
MR. WOOLEYHAN: No, Your Honor. I have a small amount, a very small amount, of redirect examination, and I am wondering at what point it will be most opportune, now or after Dr. Koessl finishes tomorrow.
THE PRESIDENT: What is your wish about the matter?
MR. WOOLEYHAN: I prefer to wait until Dr. Koessl is through.
THE PRESIDENT: You have nothing to offer?
MR WOOLEYHAN: You Honor, I sent the clerk down to got some documents and will be here in a very few minutes, if you will bear with us.
THE PRESIDENT: Very well.
MR. WOOLEYHAN: I have had no way in which to anticipate when he would be through.
THE PRESIDENT: In the meantime I have a question or two to ask this witness.
Q Earlier in the afternoon same reference was made to the Austrian Penal Courts, Austrian Penal Senate to be more exact, to which you replied that they wore applied in the hearing of Austrian cases. That is correct, is it not?
A Yes, it was a Senate, the Penal Senate which had been formed at the Reich Supreme Court, and among other cases had to deal with cases from Austria apart from cases which came from other parts of Germany. For instance, the District of Berlin, or the District of Koenisberg, and apart from that also the cases of the District Court of Appeals in Austria.
Q Yes, you have answered my question, and now I want to ask you another one. What do you mean by Austrian cases. I'll ask you more definitely. Do you mean where civilians of Austria were brought into Germany to be tried for crimes?
A No, the Penal cases which had already been sentenced in Austria according to Austrian law, and Austrian Penal Law was also used and applied at the Reich Supreme Court in Leipzig, and for that purpose exports -- legal experts from Austria had been called to tho Reich Supreme Court who know the Austrian Penal Code and Penal Procedure. They were especially qualified jurists from Austria, people with special qualifications, and technical qualifications, and, I remember one case in which a Reich Supreme Court counsellor was used who came to the Reich Supreme Court for political reasons only, but he was soon transferred to the army by the president of the Reich Supreme Court.
Q Then the Austrian cases that you refer to pertain to crimes committed by Austrians while in the State of Austria, and only came to the Supreme Court on a review, is that correct?
A They came in review or by or through the military plea, which the Reich Supreme Court Reich Chief Prosecutor could have raised against the sentence in any Austrian District of Appleals.
Q Then the nullity plea could be invoked concerning the crimes committed in Austria, and where the original trial had taken place in Austria, is that true?
A The nullity plea against sentence just as in another territory within the confines of Greater Germany, the German Law was extended to Austrian territory in this respect. May I still add that perhaps before I have not expressed myself quite clearly. On mentioning the nullity plea, of course, there was difference whether the suggestion for the nullity plea came from the Ministry, or whether the defense counsel for the defendant discussed the nullity plea with the chief prosecutor, but that the defense counsel was in a much more disadvantageous position in that case than if Ministry requested or suggested the nullity plea. That is clear, of course, because tho Ministry could instruct the chief prosecutor to invoke a nullity plea, whereas, the chief prosecutor could say in answer to a suggestion or request of defense counsel, "I do not see any reason why there should be a nullity plea," and against that, of course, tho defense counsel had no recourse.
THE PRESIDENT: I have no further questions at this time. Are you ready for a further presentation of documents?
MR. WOOLEYHAN: I sent the secretary to get the document books from the Bench. We are going to present a scattering of different documents in order to clean up the entire three series, scattering it in Book B through Book L through the books in three series, except "A" and "E", and your secretary has gone to get them now.
THE PRESIDENT: He has gone to our office to get them?
MR. WOOLEYHAN: Apparently so.
THE PRESIDENT: Maybe it will not be very satisfactory, as they might not find the books so easily, so we will adjourn at this time until tomorrow morning, unless there is some special reason for not doing so.
MR. WOOLEYHAN: If Your Honor please, it will be a very expeditious thing indeed if we can get these odd documents cleaned up today. We don't like them any more than the defense counsel, or the Tribunal, to go through this great pile of document books.
THE PRESIDENT: We can do that even more quickly and no doubt can save time by recessing for five minutes, and then tell us what books that are needed and we will get them. What books did you state?
MR. WOOLEYHAN: I stated you should got every book in three series except "A" and "E".
THE PRESIDENT: "A" and "D".
MR. WOOLEYHAN: "A" and "E".
THE PRESIDENT: "A" and "D" of which series?
MR. WOOLEYHAN: Three.
THE PRESIDENT: Only Book 3?
MR. WOOLEYHAN: That is right, Your Honor.
THE PRESIDENT: Everything in three except "A" and "E".
MR. WOOLEYHAN: Yes, Your Honor
THE MARSHAL: The Tribunal is again in session.
MR. KING: May it please the Court, the prosecution at this time is not, as Mr. Wooleyhan supposed with good reason a moment ago, ready to proceed with clearing up the matters of the remaining books. We have the English version of the documents to be presented, but we do not have the German copies available and cannot get the copies in time to do us any good right now. That is going to present difficulties so far as the translation is concerned and it has seemed to us therefore that we should not proceed without the German copies to aid the translation staff.
There is one matter that we would like to clear up at this time and that is in connection with the Document 1019 or Exhibit 129, which was the motion picture film concerning the People's Court. The Court will recall that that film, when it was shown, had an English version which was made available through the sound system simultaneously with the German sound track on the film. The record of the session in which that film was shown does not include either the German or the English version of the dialogue that took place during the scenes from the trial. The prosecution believes that it would be advantageous to the Court and to the defense as well as to the prosecution, for future reference if the transcript of both the German and the English versions of that film were made available.
THE PRESIDENT: Can we fix it up without showing the film again?
MR. KING: We do have now in exhibit form the English version and the German version, and with the Court's permission, we would like to introduce that as separate exhibit. We have the stencils cut, but we have not run them off yet, pending the approval of the Court as to the procedure. However, with your permission, we will submit as Document 1019-A, the English and German versions of the language contained in that film. Would the Court have any objection to that?
THE PRESIDENT: Let's first ascertain whether defense counsel have any objection.
MR. KING: Do I understand from the nods of the defense counsel that they have no objection?
THE PRESIDENT: We hear no objection. The Tribunal believes that it is very desirable to have it, and it may therefore be admitted into evidence whenever it's ready; but it isn't ready to be offered now.
MR. KING: It isn't ready to be offered now. The Translating Division have furnished us a copy of both the German and the English text. The German text will have a certificate of authenticity attached as a part of the document, and the English text will have a certificate of translation. The text in both English and German, in addition to indicating what was said also indicates who the speaker was, so it will be possible to read the Document 1019-A and determine who said that.
THE PRESIDENT: Each statement, therefore, if I understand you correctly, will show not only what was said but who was the speaker?
MR. KING: That is correct. We will then complete the processing of that and submit it. We will wait for the actual offering in evidence until it is ready and assign the exhibit number at that time. The prosecution at this time has nothing further to offer.
THE PRESIDENT: We will adjourn, therefore, at this time until tomorrow morning at nine-thirty o'clock.
(The Tribunal adjourned until 10 April 1947, at 0930 hours.)