Q. Father, you have now told us the opinion which Dr. Eichler had about Hansen. You have also told us that he regarded him as an evil spirit, with special reference to the things he did in order to hinder the spiritual care. I ask you, Father, to express your opinion to the Tribunal.
A. From the things which I experienced in regard to Hansen, directly or indirectly, I can merely confirm that Herr Eichler, in his judgment about Hansen, did not go too far.
Q. May I ask you to inform us further whether in your activity you personally had any contact with or talked to the then Undersecretary Klemm, who is now as defendant?
A. No.
DR. SCHILF: I have no further questions, Your Honor.
THE PRESIDENT: Dr. Link, we have only eight minutes yet until the usual adjournment time. Will that be a sufficient time for your cross-examination?
DR. LINK: For my cross-examination, Mr. President, it will probably be sufficient. I know that the witness is interested in being able to leave today. If it can be determined whether another one of my colleagues wants to cross-examine him then perhaps one could decide whether it would be better to conclude tomorrow morning.
THE PRESIDENT: If you think it won't take longer than that you may proceed, and if it does take a little longer, we will be patient with you.
Let me inquire whether any other defense counsel desire to crossexamine this witness.
(Show of hand by Dr. Doetzer) It doesn't look possible, Dr. Link, to complete this cross-examination tonight under those circumstances, because another attorney wants to cross-examine.
I would like to accommodate the witness of course, but unless we would sit quite a little longer--May I inquire how much additional tine the other counsel would like to have?
DR. DOETZER: Five minutes, Your Honor.
DR. LINK: Mr. President, under the circumstances I would like to request that the continuation of the cross-examination take place tomorrow after all, because in that case, if it is not brought to a conclusion today in any case, I can then still speak with the defendant Engert, whom I still have to visit in the hospital.
THE PRESIDENT: That is a vory reasonable request. The witness is the only one that is being made to stiff or, I guess, and he looks like he is good-natured.
We will therefore adjourn at this tine, until tomorrow morning at 9:30.
( A recess was taken at 1625 hours, 27 May 1947, until 0930 hours, 28 May 1947.)
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Josef Altstoetter, et al, defendants, sitting at Nurnberg, Germany, on 28 May 1947, 0930-1630, Justice Carrington T. Marshall, presiding.
THE MARSHAL: Persons in the courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this honorable Tribunal There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you please ascertain if all the defendants are present?
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of the defendant Engert, who is absent due to illness.
THE PRESIDENT: The defendant Engert has been temporarily excused at his own request. Let proper notation be made.
Proceed with your cross examination, Dr. Link.
PETER DUCHHOLZ - Resumed
CROSS EXAMINATION (Continued) BY JR.
LING: (Attorney for Defendant Engert)
Q. With the permission of the Court, I continue the cross examination. The questions which I have to put concern the affidavit which we were discussing already yesterday, Document NG-534, Exhibit 301, Book VII-B. Witness, toward the end of your affidavit in answer to the question as whether you knew which gentlemen in the Ministry of Justice were dealing directly with questions of penal execution you mentioned the name Engert, correctly Engert, who you say was in charge of penal executions during the last period, May I ask you first, for clarification, did you mean to say by it that everything which you stated in your affidavit, all the facts you stated in the affidavit arc in connection with the defendant Engert; that is, above all the information about this execution after this air raid of Ploetzensee?
A. I did not want to express that by naming Engert; I merely meant to say that Engert was in charge of the division for penal executions in the Ministry of Justice.
Q. Do you then agree with me, if I say that in the case of these executions we are not concerned with measures of administration of penalty (strafvollzug) with which Engert was dealing principally in the Ministry of Justice, but about penal executions (Strafvollstreckung) which did not concern him principally, nor his division.
MR. KING: If the Court please, I object to the question for the reason that this witness is not competent to know the division or in what manner the defendant Engert administered his division, The witness is a priest, not a lawyer.
DR. LINK: May I say that the witness must be familiar with this because in his affidavit he starts this affidavit based upon the fact so to say that ho was trusted and consolidated by the Ministry in matters of spiritual care.
THE PRESIDENT: We will leave it to the witness to determine whether he is able to answer the question or not.
A. In my opinion Herr Engert did not have anything to do with the penal executions; these tasks are matters of the Prosecution, and, as far as I remember, Herr Engert merely was in charge of the Strafvollzugsabteilung -- the Penal administration Department,
Q. Yes. Witness, yesterday you repeatedly mentioned the name of Ministerial Counselor Eichler as being the man to whom you turned with your efforts for an adequate protection of the spiritual care of the prisoners, and from whom you got support and help; is that correct?
A. Yes.
Q. In the case of this Ministerial Counselor Eichler, is that the Referat of Department V of the penal Administration Division, of the Defendant Engert?
A. That is correct. Dr. Eichler, under Engert, had to direct Division V under Engert as Ministerial Director.
Q. Would it perhaps be more correct that he had to be in charge of a Referat in the division?
A. Yes.
Q. Specifically in regard to this point of religious care of the prisoners, may I ask you whether you know about a regulation which you presumably succeeded in bringing about with Eichler or Engert, a regulation of the 12th December, 1944, which concerned itself with a change and modification of the regulations which had been issued previously. It is Document NG-770, Exhibit 291, in the same Document Book, VII-B. Jan you remember that, witness?
A. Yes.
Q. Jan you briefly describe to the Court how this rather obvious mitigation came about?
A. In the winter of 1943, probably on the initiative of General Prosecutor Hansen, a regulation had been issued by which basing itself upon necessary war time measures, and the exclusive use of the prisoners for war time work the religious services were prohibited. I can no longer remember the exact dates when this order was issued, nor, of course, the exact wording. One can probably understand that thereupon letters of protest arrived from all over the Reich; That we prison chaplains asked the Bishops to enter into the matter, and they above all pointed out what impressions this measure made not only within Germany, but also abroad.
Together with my Protestant colleague Oberfuehrer Knorth I reported the wishes of the Episcopate and the Protestant clergy, and also our own wishes and our misgivings to the Ministry, and Dr. Eichler lent us a very understanding ear, especially since he expressed quite freely that ho could not understand this order and how he had tried to prevent its being issued. Thereupon, if I am not mistaken, ho spoke with the Minister himself, at least with Engert, who was his immediate superior in office, and then this regulation which has just been mentioned was issued. Naturally, one could not simply withdraw an order a few weeks after it had boon issued; thus, Eichler found a formulation which represented the matter in such a light as if the prohibition of religious services was cased upon a misinterpretation of the order.
And, as if this had merely been intended, for those cases, were direct war time measures, made religious services impossible. The religious services, especially at Christmas and New Years wore allowed to be held.
Q What do you think, witness, is the reason for the fact that this somewhat devious method they believed to be the only way to be followed in Division V of the Ministry of Justice, according to your own knowledge of the facts. Was it more the resistance of the Minister himself or was it due to those matters which you mentioned yesterday which are connected with the name of Hanzen?
A The final opposition, must have been with the Minister, himself, who did not want to withdraw an order today which he had issued yesterday. The regulation itself, had quite certainly been issued especially on the initiative of Hanzen so that it can be understood that there was some opposition on his part against the withdrawal of this order.
Q May I now ask you, in addition to Eichler, did you also have personal contact with Engert in your efforts, in your relations with regard to the Ministry of Justice?
A I went once, personally, and that was probably in this matter to Eichler and then left with Eichler to Engert in order to discuss these matters with him personally. At that time I did not feel any personal opposition on his part to our justified desires.
DR. LINK: May it please the Court, may I make a remark that it has been pointed out to me that, due to the translation, the designations which I put in contrast at the beginning of the questions on "Strafvollstreckung" and "Strafvollzug", that is, serving of the penalties were both translated with the word "penal execution."
THE PRESIDENT: (Did not have his switch on.) Are you referring -
DR. LIN: No, that isin regard to my first questions, regarding the affidavit of the witness, 534, that is NG 534. Tho two concepts, Strafvollstreckung that is execution and on the other hand Division V, Strafvollzug, penal administration which were connected with prison sentences, treatment of prison matters, and so forth; and, that contrast was not apparent if both concepts which are of opposing nature are translated by the same expression.
I just wanted to point that out. Further, I have a final question:
Q In your affidavit, you also speak about -- page 3 on the bottom of the German text in the affidavit, about the constant shackling of those sentenced to death was based on an expressed order of the Ministry of Justice. In your efforts in the Ministry, did you also point out these matters and try to effect a discontinuance or an ameloration? Was that not within the framework of your tasks?
A Personally, such efforts were not within the framework of our positions and tasks, but in view of the position my Protestant colleague, and my position as a trusted man of the Ministry, in regard to the Ministry, vie had the possibility also beyond the framework of the spiritual care in the narrow sense, to bring up matters which did not belong directly in the field of spiritual care. Thus both of us Oberpfarrer Knorth, whom I just mentioned and myself, in our efforts for in disturbed continuance of our work in spiritual care, also repeatedly used the opportunity to report these matters to Eichler. If I am not mistaken an ameloration took place to that extent, at least, that the fetters, were removed when a person sentenced to death was visited by his relatives so that the prisoner would not have to go to the visitors room and speak to his relatives in the undignified form of being fettered.
Q Yes, Father, your memory is nob mistaken at all that extent when you were concerned with the document which you remember which is probably the document NG 667, exhibit 297, which is also in the document book 7 B, which was mentioned before. It is the document which Engert signed and. issued which contains, which has the contents which you just related.
I thus can point out, witness, that this ameloration of a regulation which had previously been issued by the Reich Ministry of Justice was due to your efforts, was to the understanding attitude of Eichler who was then also covered by Engert to that extent.
A Yes.
DR. LINK: I have no further questions. Thank you.
THE PRESIDENT: You have stated that regulation No. 4. was in the winter of 1943. I think you are mistaken about that, was it not in 1944?
THE WITNESS, BUCHHOLZ: I did not quite understand your question, your Honor, in what I was supposed to be mistaken?
THE PRESIDENT: In referring to the directive of Engert, which is designated in the exhibit as regulation No. 4, you stated that was in the year 1943, but are you not mistaken about that?
THE WITNESS, BUCHHOLZ: Yes, that is correct, it was 1944.
DR. DOETZER (for defendant Nebelung): May it please the Court, I ask permission to continue the cross examination?
THE PRESIDENT: Proceed.
DR. DOETZER: My questions relate to the affidavit of the witness, exhibit 301, NG 534, and they relate in particular to the statements which are in the German book, on the last two pages, pages 56 and 57 of the German document, 39 and 60 of the English, and they are concerned with the procedures and. methods of the People's Court.
Q Father, may I direct some questions to you? During your examination, you pointed out your opinion in regard to methods and procedures of the People's Court. During your activities as Chaplain did you ever participate in a trial of the People's Court?
A No.
Q During your activities in Berlin, did you over speak with a judge of the People's Court about the methods and procedures of tho People's Court?
A No.
Q Then, I probably understand your affidavit correctly, if I think that your statement which you made there, are based on the stories told you by those who were sentenced?
A My statements wore based, first of all, on what those who have been sentenced told me about the trial, and on the other hand, on those things I had heard from relatives of the convicted; the relatives who had the opportunity to witness the trials.
Q Father, at that time, did this circle of persons tell you that the trials and methods before all senate of the People's Court were the same, or did you gain the impression from these conversations that between the individual sentences, their methods, the trials and procedures, there were basic differences?
28,May-M-JP-3-l-Biolsi (Int. Wartenberg)
A. In order to answer this question I must say that you are absolutely right that the method in the procedure at a trial, and, I may also say, in the ethics of the judges there were essential differences between the individual Senates. I remember quite well the horror of some prisoners when they were told they would be heard before this or that Senate... They knew if the trial took place before this or that Senate - let us say Senate Six or Seven -- there were six or eight trials in one day --- one knew with 100% certainty that six or eight death sentences would be pronounced on that day. On the other hand, there were Senates where one had to gain the impression, again and again -
"here are gentlemen who have the old good tradition of judges who are conscious of the importance and responsibility of their office and who tried to let justice prevail -- who even tried by endangering their own position to pronounce more lenient sentences and acquittals."
Q. Did you ever hear it said by a convicted person that the defendant whom I represent, the former Senate president, of the Peoples Court, Nebelung, sentenced him to death?
A. No.
DR. DOETZER: Thank you very much.
THE PRESIDENT: Any redirect examination of this witness?
JUDGE BRAND: May I ask a question first, please. I should like to ask a question before you proceed.
BY JUDGE BRAND:
Q Witness, will you direct your attention to the Bench? I desire to ask you a question. The man Eichler, of whom you spoke, was a subordinate of Engert's, was he not?
A. Yes.
Q. And the man Hanzen, of whom you spoke, who was his immediate superior?
A. The minister of Justice.
Q. He was directly under the minister of Justice?
A. Yes.
Q. In what department was he?
A. Hansen was not in the ministry of Justice. He was General Public Prosecutor at the Highest Prussian Court of Appeals of Berlin, the Kammergericht.
MR. KING: Just one question, Father.
BY MR. KING:
Q. Do you know how many senates of the Peoples Court there were?
A. How many Senates? I Can no longer remember how many Senates there were.
Q. And you do not now, either, I suppose, over what senate the defendant Nebelung presided?
A. No.
MR KING: Thank you. No further questions.
THE PRESIDENT: The witness may be excused.
(Witness was excused)
HERBERT LIPPS, a witness, took the stand and testified as follows:
JUDGE BRAND: Will you raise year 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.
DR. SCHUBERT (for defendant Oeschey): hay I begin the cross-examination? -
THE PRESIDENT: Dr. Schubert, will you begin by referring to the Exhibit number and the document number, and the name.
EXAMINATION
DR. SCHUBERT: May it please the Court, we are concerned with Document Look III-I, Document NG--577, Exhibit No. 228.
DY DR. SCHUBERT:
Q. Witness, please state your name and your profession to the Court.
A. Lipps, Herbert, District Court Director -- Landgerichtsrat.
Q. Dr. Lipps, on 28 September 1946 you gave an affidavit.
A. Yes.
Q. In the German copy which I have before me you say that from 1934 until April 1944. you worked as an associate judge at the Special Court of Nurnberg.
A. There must have been a mistake in the date hero. There must be a typographical error in the dates.
Q. What is the correct statement?
A. From June 1943 until April 194- I was at the special Court of Nurnberg.
Q. When you come to the Special Court in Nurnberg in June 1943, who was presiding judge?
A. At that time Director Ferber was presiding judge.
Q. When did the defendant Oeschey become presiding judge?
A. As for as I can remember, October 1943.
Q. Dr. Lipps, you say here - "When I was appointed associate judge for a trial I did not have any insight into the files." I would like to ask you - did the defendant Oeschey, when he was presiding judge - did he refuse to have the associate judges see the files?
A. No, he did not refuse it.
Q. Now was it?
A. When I entered upon my duty at the Special Court I was told that it is not the usual - that one is allowed to look at the files, and one did not have my time either. I myself, then, in the course of my activity at the Special Court, saw that it would hardly have been possible to study the files beforehand.
Q. In other words, through your work it was very difficult?
A. Yes, through working on the sentences my time was taken up.
Q. Dr. Lipps, who informed you at the time that it was not usual to look at the files?
A. Who it was I don't know, but I suppose it was one of the associate judges, one of the gentlemen of whom I asked how this was done because one is not allowed to see the files.
Q. When you put this question and received an answer, who was presiding judge of the Special Court at that time?
A. At that time it was certainly still Dr. Farber who was presiding judge because it Was during the first weeks.
Q. If you do not for the moment consider the burden of work which made it impossible for you practically to study the files thoroughly before the trial, - regardless of that, could you have had the files at your disposal?
A. Yes, I could have had them. It was not prohibited to me.
Q. Mr. Lipps, you state further that requests for submission of evidence on the part of the defense were regarded by Oeschey as unnecessary delays of the trial. In this regard I would like to ask you; if defense counsel made requests for submission of evidence did the Court then discuss this request from the point of view of the material, and decide about it?
A. Yes, they discussed it and decided about it.
Q. These requests for submission of evidence were not simply pigeon-holed?
A. No.
Q. Did you frequently sit in trials with the defendant Oeschey?
A. During the first months, as far as I remember, he only held trial once a week and I was not always appointed to sit on it, and frequently the deputy presiding judge, Pfaff or Ferber, were still presiding judges.
Q Dr. Lipps, from your experiences during these individual sessions, you said that Oeschey did. not allow any contradiction. In so far as that relates to his relationship with the associate judges in the cases in which you were on the bench, can you tell me whether these were cases in which there were very great differences of opinion which arose?
A In those cases it actually did not happen.
Q Thus they were, if I may say so, such cases where one would say that they were smooth cases?
A As far as I can remember, they were straightforward cases.
Q From that it resulted that the consultations did not last very long?
A The consultations were relatively short in such cases.
Q In the affidavit you point out that Oeschey at times during the trial was sharp toward the defendants.
A Yes.
Q During the consultations which followed such cases, did you find that out also, or was there a difference?
A During the consultations one could not recognize that so well. According to his behavior during the trial, one must have supposed that during the consultations he would act quite differently than was frequently the case during the trial.
Q Dr. Lip s, during the consultations did he give evidence of understanding for the defendant's point of view?
A I can not remember any concrete case or any actual case in that connection.
Q Can you maintain that the strictness of the trial, or the severity of the trial, led to some mistakes in the determination of the facts, or to wrong judgments?
A. I could not say so.
Q Can you say the opposite, that it was not the case?
A I do not believe that that manner of carrying on a trial led to wrong judgments or mistaken judgments.
Q Dr. Lipps, I an now going to speak of some cases which you discussed here. The first case is the Strobel case. Why was Strobel indicted? For what was he indicted?
A Originally it was because of an offense against the Malicious Acts Law.
Q And why was he sentenced or convicted?
A He was sentenced as a dangerous habitual criminal.
Q Are how many trials were there in this case?
AAs far as I remember two trials.
Q Did you participate in both trials?
A In both trials, yes.
Q What was the result of the first trial?
A The result of the first trial was a decision to suspend the trial.
Q Do you still remember for what reason trial was suspended?
A I believe I remember the reason was that tho indictment should be enlarged to tho effect that the defendant should be indicted as a dangerous habitual criminal.
Q You say furthermore, Dr. Lipps, that before the plea of the prosecutor the latter was instructed to indict Strobel as a dangerous habitual criminal. Am I correct if I suppose that this remark refers to the second trial?
A Yes, to the second trial.
Q Dr. Lipps, as to the first trial and after the suspended sentence, the prosecutor, however, had already been informed about the fact that the Court regarded the crime to tho effect that the criminal was a dangerous, habitual criminal; is that correct?
A Yes, that is correct.
Q Is it known to you that between tho two trials a record of tho prosecution was made to the General Public Prosecutor?
A No, I don't know anything about that.
Q Do you know that Strobel, between the first and second, trial, had defense counsel appointed by the Court?
A Yes, he must have been appointed because during the second trial a defense counsel appointed by the Court appeared.
Q Now, you say that according to the transcript the defendant was not informed of this change in the legal point of view. By that you obviously mean the transcript of the second trial?
A Yes.
Q Are you of the opinion that the defendant and his defense counsel were in some way not clear about the fact that the crime could also be regarded as the crime of a dangerous habitual criminal?
A I am not of the opinion. The defense counsel could, conclude per se, since he was appointed as a defense counsel by the Court, that a more serious penalty would be pronounced or could be counted upon. During the first trial the defendant had it pointed out to him what he could expect.
Q Dr. Lipps, at the beginning of every trial the prosecutor read the indictment again?
A Yes.
Q As far as you remember, did the prosecutor in the Strobel case, during the second trial when the indictment was read, already mention that the paragraph regarding habitual dangerous criminals - that is, paragraph 20-A of the Penal Code of procedure - would be considered?
A I can not remember that any more.
Q You can not remember it any more?
A No.
Q In this case, during the second trial before the plea of the prosecutor, was there a discussion between the Court and the Prosecution? Do you know that?
AAs far as I remember, yes.
Q Do you know what the opinion of the prosecutor was?
A I do not know that any more exactly.
Q Do you know, when the consultations took place prior to the consideration of the sentence, that the commentary of Schwarz was consulted as to whether the last deed in the case of a habitual criminal has to agree with the previous criminal deeds or can be different from them?
A I believe that I can remember that.
Q Can you remember that jurisdiction was found within the meaning of what I just mentioned?
A Yes.
Q I other words, that the last crime does not have to be absolutely of the same nature as the former crimes?
A I think I can remember that similarity of the individual crimes is not absolutely necessary.
Q Correct; that is what I meant to say.
I am now coming to the next case, the Kollischan case. In that case, Dr. Lipps, you only object to the fact that when the sentence was drawn up by you, the defendant Oeschey criticized the sentence and changed a part, dictated it differently. Is that correct?
A Yes.
Q Can you still remember when this case took place?
A That must have been in the fall of 1943, perhaps October, I don't know exactly.
Q At that time you were at the Special Court only for a short time?
A I think that it was my first large sentence with Dr. Oeschey altogether.
Q Did you see something unusual in it?
A No, not at the time.
Q In such a change?
A No.
Q Dr. Lipps, I am now speaking of the Scheck case which you mentionod. Can you briefly state what it was all about?
A It was a violation of the war economy. The criminal had a printing shop.
He had to print food ration coupons, and he printed the food ration cards for himself. He then sent them to whole sale dealers, and in that way he received considerable amounts of materials for his store. He was a printer, but in addition he was some kind of a dealer in a small place in the Upper Palatinate. Also, he hoarded foods.
Q All right.
A On the whole, those were the facts.
Q Here these transactions on a large scale?
A Yes, they were large-scale frauds.
Q Can you still remember that the prosecution had thought of the death penalty and asked the Court to appoint a defense counsel?
A Yes. In this case I can clearly remember that from the very beginning the prosecutor was not thinking of any other penalty than the death sentence.
Q Are you of the opinion that another Special Court would have sentenced Scheck differently, according to the jurisdiction prevalent at that time?
A I do not believe so.
Q Now I am going over to the Wagner case. In that case you merely object that a different defense counsel was ordered for the defendant than the one she wanted to have.
A I found that out when I read, the files afterwards.
Q Witness, may I submit the original file to you here. Please tell me when the defense counsel was appointed by the Court.
A He was appointed on 2 October 1943, Rechtsanwalt Dr. Buerkel, in Amberg.
Q Please turn over some pages. The summons to the defendant Wagner, do you find it?
A The summons is of 8 October 1943.
Q Yes. On the other side of the summons there is the objection of the Defendant Wagner against the defense counsel. Would you please read, that?
A That was the Defendant Knorr. Just a moment.
Q Yes.
AAlso the summoning of the Defendant Wagner is of 8 October, 1943.
Q Would you please read, that?
A The application says, "after discussing it with my defense counsel, I shall leave it up to him to make applications which have to be put in. If I am given Lawyer Buerkel as defense counsel appointed by the Court I refuse to take him. I have no confidence in that defense counsel. I ask to have Dr. Laithel appointed, who is already familiar with the facts, or Justizrat Dr. Steinigcer."
Q From what date is that?
A 13 October 1943.
Q Would you please tell me when the trial took place?
A On 20 October 1943.