We find on Page 112 of the English text what is said to be the official career of the defendant Joel, So No. 290890, a total of six promotions in the SS being shown there.
On Page 114 a questionnaire, presumably filled out by the defendant Joel.
On Page 117 there is a short statement, apparently for the SS files, of the defendant Joel's career.
On Page 118 we find statement that it is therefore requested to promote Joel to the rank of SS Sturmbannfuehrer, effective as of 9 November 1943.
On page 119 another note for the personnel files, So records dated 14 December 1942, and it says:
"On 14 December Sturmbannfuehrer Dr. Joel of the ReichSecurity Main Office informed me that SS-Sturmfuehrer Wanninger had been appointed Liaison officer to the Reich Ministry of Justice by the Reich Security Main Office. The Order appointing SS-Sturmbannfuehrer liaison officer to the Reich Ministry of Justice since 1937 has not been rescinded as yet nor has the cancellation been made public."
There is various other promotional and biographical material in this document which we do not call particular attention to at this time, and, therefore, offer the Document NG 747 as Exhibit 423. As soon as Defense Counsel completes examination of the original photostatic copy, it will be handed up to the Secretary General.
THE PRESIDENT: The document will be relieved in evidence.
MR. KING: The next document is NG 716, which will be Exhibit 424 when accepted into evidence. This document is to be found on Page 141 of the English Document Book 9-B. It is the sworn affidavit of one Rosemarie Rothaug, the daughter of the defendant Rothaug.
We will not read at this time very large portions of this document. We do wish to call attention to the last main paragraph on Page 142 of the English text, in which Frl. Rothaug speaks of the habitues of the Blaue Traube:
"Some of the regulars of the Blaue Traube were Regional Inspector Haberkern, who also owned the hotel; SS-Standartenfuehrer Faust; Section Chief Guegel of the German Labor Office; Director of the District Court Oeschey; Senior State Prosecutor Dr. Schroeder; Mr. Friedrich; Mr. Elkar; the Higher SS and Police Leader of the Military Area XIII, Obergruppenfuehrer Dr. Martin; his Adjutant Major Heymer, and my father. Dr. Martin was extremely seldom there.
"What my father's duties were in the Nurnberg Security Office I do not know, but I deduced from his conversation when he was at home on leave that he had something to do with the Reich Security Main Office in Berlin."
JUDGE BRAND: Did you read that correctly? Our English copy says, "What my father's duties were in the Nurnberg Security Police ..."
MR. KING: That's right.
JUDGE BRAND: You read it otherwise.
MR. KING: Did I? I am sorry.
We offer the Document NG 716 as Exhibit 424.
DR. KOESSL (for defendant Rothaug): May it please the Court, in the affidavit of the defendant Rothaug's daughter I find no indication to the effect that it had been called to her attention that she might refuse to testify. According to German law, that would have been necessary. I do not know, to be sure, any rule of the Tribunal that prescribes this waiver. Therefore, I would like to leave it up to the decision of the Tribunal whether this is a reason for returning this affidavit.
MR. KING: May we point out that at the time when this affidavit was given, and presumably now, the affiant was not in detention and therefore was at liberty, if she wished, to consult counsel before she signed the affidavit.
I believe, Your honor, I offered tho document in evidence?
THE PRESIDENT: Is the document under examination?
MR. KING: No. Oh, it has been returned here.
THE PRESIDENT: The document will be received in evidence.
MR. KING: The next document, NG 507, will become when received in evidence Exhibit 425. This is a sworn affidavit by Karl Schroeder.
THE PRESIDENT: It appears that there is some difficulty with the transmission system.
MR. KING: At the risk of being repetitious, let me say that this next document is KG 507, which will be when received in evidence Exhibit 425 and which is to be found on Page 143 of the Document Book 9-B. This is the sworn affidavit of Karl Schroeder, who was former Senior Public Prosecutor in Nurnberg. We wish to call to the attention of the Court the first part of the first main paragraph:
"Dr. Oswald Rothaug, then the presiding Justice of the Special Court, and I were intimate friends, and our families had been on friendly terms for twenty years. I know that Rothaug was very severe, and I should not have liked to be sentenced by him. He was the loading figure at the Court and very much feared. Whenever Rothaug designated the main court room for a session, it was known in advance that the sentence would call for tho death penalty. Rothaug's severity in applying penalties may have been due to the fact that his personal legal connections were identical with those of wide Party circles."
THE PRESIDENT: "Conceptions."
MR. KING: It is "conceptions", yes. "His personal legal conceptions were identical with those of wide party circles. In connection with Rothaug's relations to the SD, I can mention only that he was very well acquainted with an SD collaborator by the name of Eklar, who was active in the Nurnberg Court Building as junior barrister."
We do not wish to Call any more of that document particularly to the attention of the Court, and so we will offer -
JUDGE BRAND: May I ask a question. I was interested in the next sentence; a part of the English translation doesn't seem to be intelligibly translated; would you read that to me?
MR. KING: I believe that should be: "It should be noted in this connection", rather than. "I should not be". I think that makes sense.
THE PRESIDENT: The document will be admitted in evidence.
MR. KING: The next document will be NG-703, and will be, when accepted in evidence, Exhibit 426. This document is not in any document book, but should be placed at the end of Book IX-3. The document is a series of letters passing between the defendant Altstoetter Himmler and other individuals as well. We wish to call attention particularly to a letter which appears on Page 7 of the document as circulated. The defendant Altstoetter has addressed this letter to the Chief of the SS Head Office and to the individual Berger, who is SS Gruppenfuehrer. Beginning with the second line of that letter, Altstoetter writes:
"I thank you very cordially for your congratulations on my promotion to SS Standartenfuehrer and for the presentation of the scull and cross-bone-ring bestowed on me by the Reichsfuehrer-SS.
Both this promotion and the honouring of this decoration with the scull and cross-bone-ring I will take not only as a token of the Reichsfuehrer's most distinct proof of trust in me but also as an incentive for further active proof of my loyalty and for strictest adherence to my duties in my career as an SS man. I am happy to be allowed to march in step under your leadership. Call me whenever you need me, and I shall be ready."
We offer the Document NG-703 as Exhibit 426.
THE PRESIDENT: The document will be received in evidence.
MR. KING: The Court will recall that in connection with General Lehmann's appearance in this court room as a witness, we had some discussion of the Document NG-204 which was identified by General Lehmann and marked for identification as Exhibit 381, its admittance in evidence subject to the processing of the document. That document has now been processed, and we offer it in evidence at this time as Exhibit 381. Before formally sending the document up, I would like to comment just briefly on the present form of the Document NG-204. The witness Lehmann referred only to the letter which is on page three of the document, as circulated, dated 23 June, 1943, from Huelle to Von Ammon. The document proper, However, contains two additional notes, and to avoid offering an incomplete document those other notes have been translated and are included with the document we are offering now as Exhibit 381.
DR. KUBUSCHOK: (Attorney for Defendants Von Ammon and Schlegelberger) May it please the Court, today we received the German translation; we received only this morning the German translation of this document.
At the moment I cannot find out whether sometime ago we already received this document; as far as I remember, we did not get it before. Therefore, I ask to postpone the submission of this document since the twenty-four hour rule has not been complied with, and the contents of the document after all require that there be some discussion with my client.
MR. KING: We would rather reserve comment on this until we have actually seen the receipt which the Defense Information Center signed upon delivery of this document. Unless the Court has some comment, we will reserve ours until the receipt can be delivered to the court room.
DR. KUBUSCHOK: May it please the Tribunal, on principle I would like to remark that the receipt from the Document Center does not mean anything to us. The question is merely when we receive it, and I have just said -- and I think that is sufficient -- that we received that document not before this morning.
MR. KING: Whatever the receipt of the document may mean to Dr. Kubuschok, it certainly means that we have complied with the rules, and that is all we are required to do. If the Defense Information Center does not deliver the document promptly to Dr. Kubuschok, that is a matter between Dr. Kubuschok and the Defense Information Center, and not between Dr. Kubuschok and us.
THE PRESIDENT: At any rate, you want to wait until you have locked at that receipt before you take any action; is that right?
MR. KING: That is right.
JUDGE BRAND: Where do you want that exhibit placed; it wasn't indicated when you had it marked for identification.
MR. KING: That is correct. It should be placed in the Nacht und Nebel book, which is Document Book VI. Perhaps it would be well to place it as the final document in that book. We have not been able to locate the receipt, and rather than argue the point extensively, we will wait until the next session of Court and offer the document at that time.
THE PRESIDENT: You would have to wait until Monday, I think, to comply with the request of Defense Counsel.
MR. KING: Yes, that we are prepared to do.
THE PRESIDENT: In other words, you would have to wait until the Monday session in order to comply with the rule, as requested by Dr. Kubuschok. In the meantime if you find a receipt showing that the Prosecution has complied with the rule, that will create a different situation.
DR. KUBUSCHOK: May it please the Tribunal, I believe that it is necessary to get a clarification abut this rule. The rule was created for the protection of the Defense, so that we actually have twenty--four hours 'time to see the documents, to examine the document. In my opinion, if the rule is interpreted according to its meaning, therefore the only important thing is when the document center undertakes the general distribution of the document to the Defense Counsel.
Defense Counsel cannot bear the brunt of delay in the Document Center.
In my opinion it is entirely irrelevant wither this document 204 was ready yesterday or the day before in the Document Center or whether it was not there. We have no influence upon the method of work in the American office of the Document Center. For us it is mainly important when we receive it. And, if we received it this morning at 9 o'clock it was impossible to examine it extensively.
MR. LAFOLLETTE: Your Honors please, of course, if the receipt shows it did not get down there 24 hours before, we do not know; but, I think Dr. Kuboschok did not hear or otherwise misunderstood what we said. We did not say anything about the Document Center. We said the Defense Center. And, because of the arguments that are coming up, we have asked that an additional receipt be delivered to my office on every document that is delivered to the Defense Center. Normally we have those with us; something has happened on that, perhaps it was not delivered 24 hours in advance. We do not have any control of the Document Center room, nor do we assert one, nor do we have any control over the Defense Information Center. And, the rule obviously requires us to deliver documents 24 hours in advance of their submission at the Defense Center. That is what I am discussing, and I am sure that is what Dr. Kuboschok must have meant to discuss. Of course, we have no control over the operation of the Defense Center. It is under the Secretary General's office, in the first place, and I am certain an attempt is being made to run it well, but the Prosecution does not run the Center.
Now, that we have that matter cleared up, may I address the Court on another matter?
First, I regret that I find it necessary to ask the Court that when it recesses today, it recess to reconvene on Tuesday.
The situation with reference to witnesses is this: We will not call the witness Staud, whom we had anticipated calling this morning. Other witnesses that we want to use must be brought to us; some of them are in the Russian zone, one man was reported operated on when we got there, another man we might want is reported to be in Norway and we are trying to got in contact with him.
With reference to the document situation, when the Court granted us a recess last Thursday noon, we went to work on that. Our list of clean up documents, as we call them, or final list of documents is possibly a little more extensive than we anticipated, but it also happened that it was necessary to move the document room the first part of the week. It is hard enough for the document room to find documents when they are not moved, and obviously they cannot prepare documents and move at the same time. That is an order over which they have no control. So, we find ourselves in the position where we cannot present any further evidence and I do not believe that we will have anything to present on Monday; therefore, I think it would be foolish for me to ask the Court to reconvene on Monday and find it necessary to ask for a recess.
Now, there is another matter which I am bringing up now at the request of Dr. Behiing, and I think, incidentally the desire of Dr. Kuboschok. In a sense, I think this would be an anticipatory ruling, and the Count may act on it as it wishes, after, I am sure, it wants to hear Dr. Behling and possibly Dr. Kuboschok or other Defense Counsel.
Briefly, there is a document, NG 1007, it is an affidavit of Dr. Behling, the affidavit is dated March 1, 1947. Thereafter Dr. Behiing accepted employment as an associate of Dr. Kuboschok. There are certain facts which Dr. Behling and Dr. Kuboschok and I have discussed surrounding the making of this affidavit, and conversely when I had a conversation with Dr. Behling when he first appeared here either on the 12th or 13th of March. I think in this connection it would be better if I permit Dr. Behling to relate the facts first, but normally, in any event, the issue which will be raised would, not arise until we offered the exhibit.
Dr. Behling has done a good deal of work, which he tells me requites about 14 days normally. I obtained travel orders to Berlin, to carry him there for about ten days. The only assurance that I could give him bout this affidavit was that I would hold it until the last piece of evidence, if he was not here, so as to give him as long a time as possible to get back from Berlin.
However, I also stated that I could not suspend the last day of the hearing, if this was the last piece of evidence. Under those circumstances, in my office this morning, I agreed that there would be formal legal questions raised against this exhibit; that Dr. Behling might present them now or other Defense Counsel, if the Court felt it wants to take up that matter at this time, and, which, of course, I cannot control and so stated.
I now state again affirmatively that at the proper time, having due regard to the situation which confronts Dr. Behling, we will offer the document NG 1007, as a Prosecution exhibit. If Dr. Behling now wants to take the podium or anyone else, or if the Court wants to say first whether they care to entertain argument in anticipation. This document has not yet been distributed, your Honors. The basic question revolves around the fact that it is the affidavit of Dr. Behling's, the contents, are not at this time material.
THE PRESIDENT: There seems to be no reason why we cannot hear Dr. Behling's statement at this time.
DR. KUBOSCHOK: In the name of my colleague, Dr. Behling, I would like to -- in regard to the defense which I have taken over, I would like to say the following in general and in particular:
The question is of great importance and very serious for us, not only f or me as Defense Counsel, but also for the rest of the Defense Counsel. Therefore, I would like to ask your indulgence if I talk to a greater length about it. First of all, the story of this particular affidavit -- in March, from Nurnberg I corresponded with my colleague Behling who was living in Berlin, about his possible assistance in the defense later on. Before any decision had been made, about this Mr. Flechtheim a Berlin remember of the OCC approached him with the request to discuss several problems of the People's Court -- to make some statement about it. Dr. Behling told him that at the moment he could not see clearly yet whether he, himself, would later on take part in the defense in this trial.
This question was not yet decided. Therefore, he would like to ask for the opinion of Mr. Flechtheim, whether under these circumstances, he could give an affidavit. Mr. Flechtheim answered: That was a worry for later on. If Behling should actually later on enter into the defense of this case, he could, have discussion with the Prosecution on the subject. Thereupon Dr. Behling made the affidavit to Mr. Flechtheim. About the 12th of March Dr. Behling appeared here, we discussed his participation in the defense. He told me that under these circumstances he had given an affidavit to Mr. Flechtheim, but this affidavit was, however, in no way concerned with reference to the personality of Schlegelberger in an unfavorable manner. I pointed out to Dr. Behling, that there was a charge of conspiracy raised in this trial. Dr. Behling found out about this for the first time through me, about this charge.
Thereupon, he got in touch with Mr. La Follette. Dr. Behling does not understand English; Mr. La Follette does not understand German. An interpreter was asked to help them. He was a gentleman who had already before failed in the translation. And now comes the big misunderstanding. Dr. Behling believes that Mr. La Follette stated that he would not submit the affidavit. Mr. La Follette explained to us yesterday that he had actually said he did not know the affidavit; he would have to examine it first; and only after that, could he make a decision. In any case, at that time Dr. Behling returned with the answer that the affidavit would not be used. Thereupon, he took part in the defense.
Two or three days ago, Mr. La Follette stated that he would use the affidavit. I make the supplementary remark that in the meantime there had been another case too in which the interests were similar. Frau Solf testified as a witness. During the examination, she mentioned that once in the camp, or in the prison, a Berlin lawyer had visited her. In the cross examination, a defense counsel asked who this lawyer had been. Thereupon, Mr. King came to the stand and stated that by agreement they did not want to mention his name -- because his name would have been Dr. Behling.
This incident confirmed, per se, our general, opinion that the defense counsel should not be entered into the trial in the capacity of a witness; this is, as far as the specific side of this case is concerned. If the affidavit will be read, several defense counsel have already announced that they will undertake a cross examination. The following situation will thereupon arise: the lawyer Behling, who will be under cross examination, is limited in his testimony because owing to the general character of the content of his affidavit -- he would have to enter into a number of general, questions -- general questions about which, in the course of the informations which he received through his client and also other defendants in this trial, he has today again a particular insight. According to the German rules of trial procedure however, the defense counsel is not free in his testimony before the court to talk about matters which his client has told him in the exercise of his profession.
Therefore, a witness of this kind could, on the witness stand, say only, "I can, with the picture which I have today, not make sufficient statements because I would render myself liable for punishment if, of necessity, I would use also in my statements those facts which I found out in my capacity as a defense counsel."
The condition would arise, therefore, that an affidavit which was made previously -- could not serve as a basis for an exhaustive cross examination. Therefore, I believe that legal reasons in this case, would make it impossible to submit this affidavit, an affidavit of a defense counsel who was working on this case. I am supported in my opinion also by Article IX, paragraph B of the General Rules of Procedure. In this article, it says that, "Witnesses are not allowed to be present at the trial until they have been examined." The lack of prejudice of the witness is supposed to be guaranteed. This applies much more strongly to a defense counsel who not only has lived through all of the sessions but who without any doubt, through the information he received from his client and from other defendant's, is somehow impressed by this information.
Finally, I would rise like to ask you to consider the special situation in this tried. The defense counsel are, in this trial, not opposite a foreign subject matter as they are in other trials. Every one of them could probably- be witness and expert at the same time in this trial. What would it lead to, if the defense counsel would act in the capacity of a witness and as a defense counsel. The example that is brought up today would probably be followed. We would then have the situation arise again and again that defense counsel will be asked to speak as witnesses and experts. I believe in order to get an absolutely clear and objective picture, this method of procedure would not be commendable since it is probably very seldom the case that a defense counsel is not impressed subjectively by his own case. At the moment I cannot state exactly whether in the IMT trial, this situation arose.
This morning, I was informed that the testimony of a defense counsel was refused in the IMT trial, but I have not yet had the opportunity to examine this; and therefore with this reservation, I am reporting this information.
Finally, I would like to point out also that the testimony of Dr. Behling, for him and possibly also for me, might give rise to the question as to whether we would then still be in a position for a number of different reasons to represent the interests of our clients and to continue the defense.
JUDGE BRAND: Counsel seems to me to have confused a number of quite different principles. Entirely aside from the legal, right, if it exists at all, for a defense counsel to testify for his client, the fact remains that it's generally considered an unethical thing to do. This case doesn't involve any question of a defense attorney testifying for his client. Now, isn't this also the situation? Here was an affidavit. We have no knowledge of its contents, which when made was entitled to admissibility in evidence. The simple question is whether by the employment as attorneys of an individual who has made an affidavit which would be admissible in evidence for the prosecution, the defense can thereby deprive the prosecution of what was theretofore legitimate evidence. It seems to me that if there is responsibility for this unfortunate situation, the prosecution has not caused it. I should like also to add a merely personal word that I have heard and can think of nothing which in any way detracts from Dr. Behling's reputation or character. If it be true that he consulted with Frau Solf in the jail, there is certainly nothing to be condemned in that at all.
DR. KUBOCHOK: Naturally, it is not a dishonor for Dr. Behling to have represented Frau Solf in her trial. That is obvious. One would have to suppose the opposite. The fact that he should not be called, in our opinion was due merely to this one thing, and the same reason which we gave for not admitting this affidavit, namely that the defense counsel should in no way be brought into personal connection with the matters that are discussed in the trial.
I believe that this is a very sound thought due to the particular nature of that trial.
JUDGE BLAND: Let me ask you: who created this situation which you find to be so unfortunate? The affidavit was admissible when made. You claim it becomes inadmissible because of the fact that a defendant has later employed the attorney who made the affidavit.
DR. KUBOSCHOK: The situation would not have arisen if at that time I had known that such an affidavit would be used. Since, however, this unfortunate misunderstanding entered into the case, the situation now came to this point. I would like, however, to consider in particular, independent of guilt or lack of guilt or responsibility, whether or not actually in a legally limited cross examination, the rights of the defense in regard to this affidavit would not be fully protected. In my opinion, there would be no practical purpose that such an affidavit of this nature is submitted and a defense counsel would have to say, on the witness stand; "Due to my activity in this trial and due to everything that I have now found out, I would have to submit a new affidavit. I cannot do that since I have been prevented that through the legal code of procedure."
JUDGE BRAND: Did you say, Mr. LaFollette, that the affidavit was on March 1?
MR. LAFOLLETTE: Yes, Your Honor. If your Honor please: I am in a position....I want to take the position now....of merely, in a sense to argue or temper what has been said. There was, it was stated, a misunderstanding... I have no reason to argue that. But, I have... I must add this other fact: I have offered either to call Dr. Behling and let him take the stand and explain as long as he wished to anything about his activity. I've offered to introduce the affidavit and permit him if he chose voluntarily to take the stand. I've offered to submit the affidavit and let the court rule upon any request of the defense to call him to the stand.
I cannot understand how the validity of this affidavit.... that is, the fact stated.... would be affected by any information which he has subsequently obtained. He honestly stated the facts as he knew them. They might be explained. He have not sought to restrict in any way his right to testify in explanation. I know of cases in which it is -- when it becomes necessary -- it is possible where several people are on trial -- that where a man gave an affidavit, a fact, involving one man, or two men, and subsequently he accepted employment.... he was free to accept that employment if the other person wanted to hire him under the circumstances. But if his deposition was valuable it didn't affect his deposition. In any event, certainly any thing that Mr. Flechtheim might have said when this affidavit was given, I can not believe, as a matter of law, would influence the giving of the affidavit. The affidavit has been given. I can not see how any defendant is -- will be -- injured under the facts, and under the circumstances, and under the conditions which I now name which I am perfectly willing to offer or abide by any decision which this Tribunal may make with reference to the right to testify. And I can not see, if the right to testify is in favor of the defendant, is personal for that defendant, then the prosecution does not object - I cannot see where the injury arises.
I think we are in a preliminary stage but I would like, in order that Dr. Behling may be informed, that the court state its decision, or wait until we offer the affidavit.
THE PRESIDENT: We will take the usual recess at this time.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
DR. GRUBE: May it please the Court, concerning the point which we have just dealt with, I would like to make one more statement: In No. 17 of the rules of procedure as laid down by the Military Government, and issued by the Military Government for Germany contains the following statement: "With the exception of the defendant, anybody can be called to testify before a court of the Military Government as a witness, but before a court the compulsion to give testimony does not apply to the following persons: Under No. 2, it says and I quote: "Legal advisers concerning written or oral statements which they receive from their clients as a matter of professional routine unless such information is subject of an action contrary to the law, or of an opinion, or is in connection with such an action."
THE PRESIDENT: Please, what are you reading from. I didn't get it. Is is No. 10, Control Counsel 10.
DR. GRUBE: No, I am reading from the rules of procedure issued by the Military Government for Germany, for courts of the Military Government.
THE PRESIDENT: Ordinance 7?
DR. GRUBE: No, it is not Ordinance 7. It is a special ordinance which is valid for all military courts, which has been issued by the Military Government of the USA for Germany or in connection with it. May I point out.
THE PRESIDENT: Just a moment. Are you referring to the Law No. 11, the Military Government Law.
DR. GRUBE: No, in this collection it is quoted under the name of "Procedure for the courts of the Military Government", and these were issued by the Military Government for Germany. I have the English text before me, if the Court would like for me to do so, I can put this English text at their disposal.
THE PRESIDENT: Yes, so I may read it.
DR. GRUBE: The defendants did not know that the defense counsel, Dr. Behling had deposited an affidavit which under certain circumstances could be used here, and might lead to cross examination, trusting the obligation to secrecy of the German attorney. The defendant entrusted the defense counsel, Dr. Behling, with certain matters which of necessity, within the scope of cross examination would follow the affidavit, would be brought up. Your Honor made the reproach before that Dr. Behling was appointed defense counsel, so that possibly the introduction of the affidavit would be made impossible. May I point out that neither the other defense counsel nor the defendant had any idea that Dr. Behling had deposited the affidavit, I am convinced that the defense counsel would have objected against Dr. Behling's appointment as a defense counsel.
THE PRESIDENT: We understand that the rule to which Dr. Grube refers is now in the translation booth, and I think we should all know what that rule is, and I think we should have it read from the translation booth at this time.
DR. HAENSEL: May I make a few brief remarks.
THE INTERPRETER: "General Provisions No. 17. Compellability of witnesses. Any person other than the accused may be required to testify before a Military Government except a person of unsound mind, provided that no witness shall be required to incriminate himself, and provided also that a court shall not compel, 1) a husband or wife or a parent or child to give evidence against the other,