We offer the document NG-783 as Exhibit 484.
THE PRESIDENT: The document will be admitted in evidence.
MR. KING: The next document will be NG-805 and begins on page 123 in the English, 133 in the German text, It is the affidavit of one waiter Bren, a former senior judge of Schwabach, and prior to that associated with the Nurnberg court. I would like to road a portion of this affidavit, which begins on page 123, five lines down from the beginning of the second paragraph.
"During this appointment --" that is, during his appointment to the Nurnberg Court -- "I had of course the opportunity of observing the president Oeshey. On the whole, I took part in 25 eases under Oeschey's chairmanship. Oeschey even alarmed the defendants by his sinister expressions. Besides he treated the defendants very roughly and frequently he became insulting. His behavior took forms which degraded the honor of the profession of judge very seriously. It was shameful to be his associate. He showed a prejudice which practically had the effect that the participation of the associate judges became more or less a matter of form. Before a session began, he informed us of his point of view, and let us know his intentions regarding the award of punishment. I can not but mention that his preliminary discussions were more or less a roll-call, in which he gave us orders which he wanted to have carried out in the manner typical of a party leader. He did not like opposition and towards us assistant judges he would become very ironical and sarcastic. This he used to express if I wanted to influence him to mitigate a punishment. Oeschey was extremely conceited and autocratic. In his judgments he referred to analogy, mainly with regard to cases formerly before the Nurnberg Special Court, which he considered to be the leading Court in the country."
The affidavit goes on to discuss cases, some of which the care records have been presented to this Court. We offer the document NG-805 as Exhibit 485.
THE PRESIDENT: The document will be admitted in evidence.
MR. KING: The document next to be offered is NG-817, which begins on page 126 in the English text and on page 136 in the German. It is a document which sets out the criteria for nominations of assistant judges to the People's Court. It is stated that in this connection importance is attached to the following and "the following" consists of four principal points. These are:
"1. Those proposed must be Party members; it is also desirable that they should be politically active.
"2. They must be absolutely suitable as regards their personalities and capabilities and, if possible, experienced in criminal law.
"3. They should have already hold a position of preferment such as District Court Director or Senior Judge of the District Court of Appeal;
"4. Belong to age groups not liable for Military Service."
The names of individuals proposed for assistant judges follow. The document is initialled by the defendant Rothenberger. In the German book I think those initials appear as "L.O." rather than as "R". However, as can be seen by referring to the original document, the initial is clearly that of Rothenberger. He offer the document 817 as Exhibit 486.
THE PRESIDENT: The document will be admitted in evidence.
MR. KING: The next document, NG-821, begins on page 129 of the English text, 138 of the German, and is a list of nominations of honorary members of the People's Court for the duration of the war. The nominations are those of three SA men, a Brigadefuehrer, an Oberfuehrer, and a Standartenfuehrer, and in addition the note states that three more fuehrers are still to be proposed to fill the six vacant posts.
The recommendations were made apparently as a result of a conference with Dr. Thierack. We offer the document NG-821 as Exhibit 487.
THE PRESIDENT: The document will be received in evidence and we will recess at this tine until 1:30.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 14 Hay 1947.)
THE MARSHALL: The Tribunal is again in session.
THE PRESIDENT: Yesterday I read an order applying to all the military tribunals. I had copies of it made. I am now offering two copies to the prosecution and two to the defense counsel.
DR. KOESSL: Koessl for the defendant Rothaug. May it please the Court, the defendant Rothaug today once again has very severe pains of the stomach. Therefore, I would ask you to be good enough to grant permission for the defendant Rothaug to be discharged to his cell this afternoon where he would be able to lie down. Then he lies down, his pains abate. My application only refers to this afternoon.
THE PRESIDENT: The request will be granted.
MR. KING: It has been called to my attention that the Document NG-680 which was offered as Exhibit 479 was not in fact received into evidence by the Court. I remember that there were no objections, so apparently it was an oversight in failing to admit it.
THE PRESIDENT: It may be that the switch was off, as it usually is when I try to say anything; at any rate, we will now state that Document NG-680, Exhibit 479, is admitted in evidence.
MR. KING: Thank you. The next document to be presented from Document Book-Supplement III is the Document NG-823 found beginning on Page 131 of the English text and 139 of the German. This document will be, when admitted in evidence, Exhibit 488. The document is dated 28 Hay 1942 and is addressed to the Reich Minister of Justice for the Attention of State Secretary Freisler or his Deputy. It is signed by the defendant Lautz, and is a report of a conference held in Vienna on 19 May 1942 with the General Prosecutors of Vienna, Graz and Linz, and with the Deputy Chief of the Public Prosecution at the District Court of Appeal at Innsbruck. The defendant Lautz participated in this conference, and the document is a report concerning discussions held and decisions reached in the conference. The general subject was the acceleration of proceedings within the competence of the defendant Lautz, the question of procuring additional space for detainees, and a discussion of the penalties to be handed down by the courts themselves.
We call particular attention to only one paragraph which appears on Page 134. of the English, 145 of the German, in which Lautz says in this report the following:
"The prisons in the area of the District Court of Appeal in Vienna could at present accommodate 300 more prisoners on remand, and if the supervising personnel is adequately increased, and the necessary equipment procured, another 600 prisoners on remand could be accommodated, if necessary by crowding them densely - up to 3 men in a oneman-cell. In the latter case, however, strict separation of the prisoners could not be guaranteed. The prisons in the area of the District Court of Appeal Graz could at present accommodate another 100 prisoners on remand or more, if crowded more densely; 50 more prisoners could be accommodated by prisons in the area of the District Court of Appeal Linz, and 15 more prisoners by prisons in the area of the District Court of Appeal Innsburck."
We do not wish to refer or to read any more from this document and will offer it as Exhibit 488.
THE PRESIDENT: The document will be admitted in evidence.
MR. KING: The next and last document in the Book III-A, is NG-829which begins on Page 135 in the English, 147 in the German, and will be, when introduced in evidence, Exhibit 489. This document consists of three separate documents, all in the case of one Charlotte Duepper, who was first indicted for seditious remarks by the Special Court in Nurnberg. From Pages 13$ through 137 the indictment sets out the conversation which formed the basis of the indictment. She was brought to trial before the Special Court in a proceeding presided over by Dr. Ferber, Dr. Baemler, and Dr. Hoffmann. The opinion of the Special Court begins on 138 and extends through 142.
The court found that the remarks which the defendant Duepper was alleged to have made did not constitute a crime for which a sentence could be given, and the Special Court, presided over by Ferber, acquitted her. The case then went up to the Supreme Court and a plea of nullification was returned against the defendant Duepper and retrial ordered before the Special Court in Bamberg. We do not, unfortunately, have a copy of the opinion verdict on the second trial before the Bamberg Special Court. I do know, however, what the sentence was, and if the Court is interested, I can supply that information. It would be entirely unofficial, since we do not have the document.
The prosecution offers the Document NG-829 as Exhibit 489.
THE PRESIDENT: Do I understand that you do not have the official information of the sentence of the next trial?
MR. KING: No. I do not.
THE PRESIDENT: The document will be admitted in evidence.
MR. KING: There are two additional documents remaining in Document Book Supplement III-A which we will present as soon as we have complied with the 24-hour rule. Until such time, which should be tomorrow morning, that completes the presentation of documents from this book.
MR. LaFOLLETTE: If your Honors please, we will ask to have called the witness Horst Schmitt. The witness will testify in the German language.
BY JUDGE BLAIR:
Hold up your right hand and repeat after me the following oath:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE BRAND: You may be seated.
DIRECT EXAMINATION BY MR. LaFOLLETTE:
Q Doctor, you will state your name to the Court and your place of birth, please -- and the date of your birth.
A Dr. jur. Horst Schmitt; I was born on 26th October, 1900, at Erfurt.
Q How much of a family did your mother and father have; how many children?
A My parents had two children, one older brother who was born in 1898 and myself.
Q Are either of your parents living?
A Yes, my mother is still alive.
Q And about when did your father die, Doctor.
A My father died in September, 1925.
Q What was the cause of his death?
A He had a stroke of the heart.
Q When did you begin the study of law, Doctor?
A I began to study law in 1921 and continued until 1922; then, I interrupted and resumed again in 1927; it was about 1927-28.
Q After you resumed, when did you pass your first degree -your first examination?
A I passed my first state examination on 18 November, 1931 before the Oberlandesgericht for Thueringia in Jena.
Q And what was your grade there?
A I passed with satisfactory.
Q Did you pass another examination in November, 1933?
A No.
Q When did you pass the next examination, and what was the next examination you took?
A The next examination was the second state examination, the so-called assessor examination; I passed it before the Reich lawyers' Examination Officer, in Berlin, 2 November 1934.
Q Doctor, will you speak just a little slower so that the interpreter can get it all in? Now, what was your grade at that last examination?
A I passed my last examination with adequate; the President of the Examination Commission was President Pahland. During the oral opinion he gave on me, he said -
Q Slower, please,
A President Pahland declared when he gave his oral opinion on my result that I could not have been given a better note or grade because the so-called Nazi essay was unsatisfactory, and that I had failed that completely.
Q Now, what year was that?
A That was in 1937, in December, -
Q I didn't make it clear to you probably, but will you tell the Court the grade that you received on the examination that you took in 1934?
A In 1933 I had the note satisfactory.
Q Now, did you practice law then up until the spring of 1939 at various places?
A No. I was then a provisional assessor, and afterwards prosecution assessor, and only on 3 January 1940, I obtained permission to set up a practice as attorney at law; that was in 1941 rather.
Q I ask you whether or not you did the work necessary for a doctor's degree in law, where you did it, and when you received your degree.
A I began to write my doctor's thesis v/hen I was a referendar and I finished it in 1939. I passed the oral examination for doctor's degree at the Provincial University, Thueringia, Jena, in May, 1939, and the note was "good".
Q And the degree, I understand, you obtained sometime between the spring 1939 and August, 1939; is that right?
A That was the doctor's degree.
Q That is right; and how long did you work on your written paper -- on that matter, and on what subject did you write it?
A On my thesis of a doctor, I worked from 1935, with interruptions; the subject of my thesis was the legal nature of the duties of the private insurance.
Q Now, did you desire to or determine to be married in the spring of 1939?
A Yes.
Q At that time was an application made for a health certificate under the law as a condition precedent to marriage?
A No. If I may describe the course of events, I should like to say the following:
Q All right; tell it in your own words, please.
A In 1933, after I had passed my referendar examination I became engaged to be married. Because I always had to be afraid that a hereditary health report proceeding might be instituted against me, I tried to postpone my marriage. In 1939 my present wife expressed the desire that at last we might get married. Naturally, I complied with her wish, and through my wife, we had announcements published near State in Hannover, because on account of my experience with the hereditary health laws, I did not want to have anything to do with it, since in 1933 the lav/ for the prevention of hereditary diseases was published, and I always feared that, and I avoided all contact with official agen cies; as I knew that according to the executive order doctors were obligated to make an announcement to official doctors about my case, I no longer called on official doctors, and I was treated by a Jewish doctor who enjoyed my complete confidence; that doctor emigrated in 1936, and since that time I no longer went to see a doctor unless I could see a personal, good friend of my own, and on whom I could rely absolutely.
Q Now, doctor,there was an application or a preliminary statement that had to be made in order to obtain a certificate of health; is that right?
A Yes. As far as I remember, I did fill in some form and I did put down in writing on that form that I was in good health, because I was not foolish enough to hand myself over to the Nazi authorities by my own signature. I do not know where that certificate went. The further course of events was then as follows: In May, 1939 I was at Erfurt in a lawyer' s office where I deputized for a notary public attorney at law, and about nine o'clock I was called up on the telephone; the person asked me -- he spoke to me personally; the call was from the Municipal Health Office at Erfurt, and they asked me to go to see them immediately -- they put it. I already guessed what might happen and went to the Health Office. There I was brought before the Official doctor who first of all talked to me. In the course of the conversation he said: You have suffered from an ailment on your hand, and I immediately said no. He then asked me to show him my hand; then he said to me, well, you want to get married, and when I said yes, I do, he said to me, that naturally I could not marry. Naturally I then became very excited and I asked him whether I could go and see a doctor who was a specialist in this particular field. I then was told about a doctor whose name was Dr. Frensen; until 1933 his name was Dr. Friedlaender.
Then on account of some manipulation which was not aboveboard, he called him Alf Frenssen. He instituted proceedings in which it was established that his father, Friedlaender was not his own father, but that his father had been an Aryan. So, he was able to keep his practice; naturally he was a thousand percent Nazi. He examined my hand and said he would report his findings to the Health Office.
Q Now, Doctor, let me ask you at this state: Did you know at that time a Dr. Bluoher and a Professor Nuernberger, and did you consult them about giving testimony as to whether or not your hand condition was a heriditary thing or not?
A Yes, when I received the official report that I was not going to get a certificate for marriage and when I heard that the sterilization was supposed to be instituted against me, I was, naturally, very excited and immediately went to our old family doctor, a Dr. Blueher, at Erfurt. He told me that he thought nothing of all the heriditary laws, and sent mo to see a Professor Nuernberger, the director of the Gynaecological Institute in Halle.
Q And, what did Professor Nuernberger say with referonce to his ability to testify for you?
Professor Nuernberger was very friendly, he was the first doctor who calmed me down, and he said that heriditary disease was out of the question, and I did not need to worry. At his clinic several eases of that kind occurred every week. Then, I asked Professor Nuernberger to give me his opinion in writing. Professor Nuernberger regretted he could not do so because he was forbidden to do so.
Q And, did you ask a Dr. Blueher also to give his opinion in writing, and what did he say?
A No, I did not ask Dr. Blueher to do so because he had sent me to Professor Nuernberger.
Q From your understanding of the law, in your experience, did you learn whether or not any doctor could testify other than tho official doctor who was a part of the Heriditary Court proceedings?
A No, a doctor was not allowed to give testimony r officially. Only an official doctor could do so because one was afraid that a doctor who was not an official doctor might give a favorable opinion on somebody who was to be sterilized.
Q Let me ask you, do you remember a Dr. Loeffler, and did you have any correspondence with him when your proceedings were pending, and what did he say or do to you?
A. May I say something? I was an assessor with an attorney at law in Magdeburg, and a doctor there x-rayed my hand. That doctor also told me that heriditary disease was out of the question, and he also told me that he could not give me a written statement, he was not allowed to do so. Professor Nuernberger, with whom I talked in great detail, I asked by chance about an old school friend of mine whether he knew Professor Loeffler. Professor Nuernberger told me that Professor Loeffler was at Koenigsberg University where he was the Director of the Racial Biological Institute. Then, I immediately contacted my school friend, Dr. Loeffler, and sent him an x-ray of my hand; two weeks later I received a detailed letter from him, in which he gave an opinion on my hand and told me that heriditary disease was out of the question. That letter, through my attorney at that time in Erfurt, I submitted to the Heriditary Court in the assumption that the proceedings against me would now be terminated.
Q. I ask you now whether or not this Dr. Loeffler was an important figure in the National Socialist Party?
A Yes, he held a rather loading position. Later on he was Professor at Vienna University and Director of the Racial Biological Institute there.
Q Now, at the time he wrote you, do you recall, did he advise you that notwithstanding his position in the Party, ho could not officially present any evidence in your case?
A Yes, that was expressed in the letter. He said that he was not allowed to give an official opinion; ho used the form of a personal letter to me.
Q Yes, now, what intervened to prevent your sterilization, what fact?
A In 1940 I had to apply for membership in the Party because , then, I enjoyed certain protection. As an attorney I knew that heriditary health proceedings had not been instituted against members of the Party. I oven know of a case where a doctor had reported on an Am Ortsgruppenleiter of the party, that this doctor had groat difficulties.
Q Yes, but I asked you whether or not in lage August 1939, there was any legislature which prevented or stayed the sterilization proceedings, then pending against you; do you remember that?
A Yes, I had another session before the Heriditary Health Court in Erfurt beginning of August. At this session the medical associates behaved if I may say so in a very impertinent manner, and, I as a lawyer, was surprised that the presiding judge tolerated such behavior. The president judge told my attorney at that time that the medical associates were all together out to bring about my sterilization. Then, an order of 31 August 1939 was promulgated that was one day before the outbreak of the war. In virtue of that order, the proceedings were stopped with the right of resumption at any time.
Q And then, thereafter, in 1940 you joined the Party; is that correct?
A. Yes.
Q Now, let me ask you about this Dr. Frenssen Who before 1939 was named Friedlaender; did the proceedings which you described by which he established an Aryan birth, involve a suit against his mother in which he charged her with adultery and, therefore, he was the product of an adulterous association with an Aryan father?
A Yes.
Q And, then he became Dr. Frenssen?
A Yes, then he became Dr. Frenssen.
Q This man was the men initially in charge of conducting the investigation on this heriditary law, and this sterilization.
A Yes, as far as ho as an orthopedic doctor was concerned with it.
Q You married, I believe, on 24 September 1939?
A Yes, but I would ask to be permitted to say a little more about Dr. Frenssen. When I returned home after my discussion with Dr. Frenssen, and was informed of the results reached by the Heriditary Health Court, I immediately informed my attorney, who, in turn, told Dr. Frenssen asking him whether it was correct that ho had told me that my disposition was recessive. Dr. Frenssen, in a letter to my attorney, said that he had not said so, but my ailment was heriditary and he advised mo to make an application, myself, for sterilization; that letter is still in my hand. After the German collapse, I showed it to the Landesgerichtspresident in Weimar, who told me that advice from the doctor was the absolute limit.
Q Now, Doctor, you were married, I believe, on 24 September 1939?
A Yes.
Q And toll us whether or not you had. any children, their ages and the condition of their health?
I married on 24 September 1939. My first child was born on 27 July 1940. It is absolutely healthy. My second child was born on 4 January 1943, and it is also absolutely healthy.
Q And, tell us whether or not there arc any physical disabilities or deformities of any kind in either of your daughters?
A. No, my children enjoyed perfect health, and all my relatives, my brothers, my nephews, and my family certainly did enjoy perfect health, and nothing has been known in the entire family.
Q. Incidentally, at some time during these hereditary court proceedings was there an examination made of your older brother and his children?
A. Yes, my mother was to appear before the health Office, my brother was told to appear there, and my two nephews also were examined. And if I may so, that Was done in a very unfair manner. The sure thing happened to me. The doctor treated no in an insolent manner, and I was surprised, because a university man won't treat another university nan in such a way.
MR. LAFOLLETTE: I think that is all - and thank you, Doctor. The witness is subject to cross examination.
WITNESS: I would like to say something more. A few days ago I road the commentary on the hereditary health law. It was the second edition, of 1946. That explain serious Malformation by saying that a serious clement does exist if the person suffers from such an ailment as not being able to save himself from personal danger, or if he is unsuitable for war service. I should like to say that in 1933 or 1937 the armed forces examined me, and that I was drafted for the socalled replacement reserve, are too. Therefore, my limited suitability must have been recognized at that time.
MR. LAFOLLETTE: Thank you, Doctor. I believe that is all the questions I need ask.
THE PRESIDENT: Do any defense counsel desire to cross-examine this witness?
CROSS EXAMINATION BY DR. KUBUSCH0K (For defendants von Ammon and Schlegelberger):
Q. Witness, you told us something about your career as a lawyer. You said that you studied from 1921 to 1922; then again iron 1927 to 1926.
What did you do between 1922 and 1927?
A. From 1922 to 1927 I spent some time in insurance business, and some time in my father's mail business at Erfurt.
Q. Apart from your crippled hand, have you had any other illnesses?
A. No.
Q. Formerly you mentioned visits with doctors. Were they all concerned with your hand?
A. Yes, they only concerned the hand, and in the decision it said split hand -- "Spalthand".
Q. You Said that Prof. Loeffler of Magdeburg had net been allowed to send an opinion to be filed with the court. Do you know that under paragraph 7 of the law, opinions can be submitted by the person affected, or by his legal representative?
A. I did know that but I did not find a doctor who world give an opinion. Apparently there was an instruction from the NS-Physicians League saying that a private doctor was not allowed to give an opinion. Later on I experienced similar cases in my own practice.
Q. But X-rays and Loeffler's opinion, were available to the court?
A. Yes.
Q. To clarify Dr. Franssen's activities, was Dr. Frenssen in any way connected with the Hereditary Court?
A. Yes, of course.
Q. As he an associate at your trial?
A. No, he was not an associate at my proceedings. It is very interesting that the defense should ask that question. I should like to said the following: In my own case, and in other hereditary League cases, which I represented as lawyer, I always ascertained that one associate was always an official doctor who, naturally, had to affirm the applications because he wanted to be promoted. The second associate was, as the law said, a person who was particularly experienced in the hereditary research field --- that is to say, in plain German, he had to be a Nazi:
a specialist in the field which was up for trial was never present. For example, in cases of Schizophrenia one associate was never a specialist for that disease, but, for example, a specialist for internal diseases, or some such thing... The fact that the bench was appointed in that manner was, in my view, quite intentional.
Q. You believe that it would have been more suitable to appoint an innumerable number of doctors, who according to their various specialized field would have been sent to the various sessions -- whereas, as we know, different cases could be heard at one session, that is on one day of sessions?
A. Yes, that is what should have been done.
Q. I Can't argue that point with you. One thing more: Was it not possible that the attorney could have nominated a specialist and could have had him appear at the trial according to article 7 of the law?
A. No, that was refused.
Q. How do you know that?
A. Because my attorney tried to have Prof. Nuernberger and Prof. Dr. Loeffler called as witnesses. These two gentlemen never received any information about my case.
Q. Did your attorney protest about that decision of the Hereditary Health Court?
A. No, because he did not receive an official decision.
Q. And he mentioned during the trial that a decision was made on that point?
A. No, he made the application in writing before the trial started, during the trial, this point was not raised at all.
Q. Did the attorney give you a reason as to why he did not make use of his privilege to ask for an official decision on that question of evidence?
A. No, he thought there was no point in doing so. I, myself, as a lawyer, had that same impression.
Q. Do you realize that the attorney, and you, if you knew of a negative decision, would have had a right to complain to a second instance?
A. Yes, to a higher Hereditary Health Court at Neuenburg, we could have complained to them, but I myself know how those higher instances did decide. They always on principle took the same view and made the same decision as the lower instance, and we very rarely saw a change made.
Q. Please tell me in virtue of what personal knowledge you judge this practice? How many courts did you know -- I mean, the judges who set in those courts and their jurisdiction?
A. I know the Jena Hereditary Health Court, which sat at Weimar.
Q. It is the only hereditary health court you know?
A. Yes, it is.
Q. You make your statement, and draw your conclusions, an account of your knowledge of that court?
A. Yes, I did.
Q. One more question. Who was the president? was a verdict made against you?
A. No, there was no verdict against me.
Q. What did happen at the trial of which you spoke earlier? What was the result of that trial?
A. I was never told about the result, but my attorney told me that the presiding judge told him that the two associates had absolutely wanted me to be sterilized; that no decision was made because the order of 21 august had been promulgated in the meantime.
Q. When were the proceedings?
A. Unfortunately, I have not the documents here. It must have been about the middle of august.
Q. Do you think that, legally, the fact that no decision was made at the session -- the decision would have had to be made at the session Don't you think that means, of necessity, that the trial was adjourned because there was still some doubt to be cleared up?
A. I cannot say anything about that. It is possible that another opinion was to be called for. That is possible.
Q. Was your case finally decided by the Hereditary Health Court?
A. It was decided up to this point, that the medical associates said I would have to be sterilized.
Q. But definitely -- the vote had not been taken, and no decision had been reached?
A. I don't know, because the vote is secret.
Q. Thank you.
THE PRESIDENT: Do any other of defense counsel desire to crossexamine this witness?
(No answer)
MR. LAFOLLETTE: No redirect, Your Honor. The witness may be excused.
THE PRESIDENT: I should like to know a little more about the order of August 21st which you have referred to, out which I do not clearly understand.
MR. LAFOLLETTE: I think the data was August 31st, your Honor. I don't know whether the translation was correct. But I think it was the 31st.
THE PRESIDENT: Whatever the date was -- the 21st or the 31st -can you tell us more about that order?
WITNESS: I received a letter saying that the proceedings had been stopped because of a cert in order of August 31st, but I do not clearly understand what was that order of August 31st?