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.
Q Thank you. From looking over the files can you remember where the files were before the trial began?
A I can still remember that before the trial they were sent to Amberg at the request of the defense counsel in order to look at them.
Q Do you believe that the defendant Oeschey, as regards the protest of the defendant Wagner of 13 October against the appointment of defense counsel Buerkel saw it at all before the trial on the 20th of October?
A He might at the most have seen it shortly before the beginning of the session, because I can remember that it is ordered in the files that until the beginning of the trial they remain in Amberg. Thus Oeschey may not have seen them any more before the beginning of the trial.
Q Did the defendant Wagner, as far as you remember, during the trial, protest against her defense counsel in some way or other?
A No, she did not.
Q Lawyer Buerkel did represent her during the trial without any protest?
A. Yes.
Q Dr. Lipps, finally in conclusion, the case of the Pole which you mentioned. You did not see any files about that, did you?
A. No.
Q Do you still remember that this Pole attacked his employer with a dung fork and that he infured him seriously? Can you still remember that?
A I think I can still remember that he attacked, him which some object. Whether he injured him I don't know. At least I can not remember it any more.
Q But you do not consider it important?
A The possibility that that was a case I can not exclude.
DR. SCHUBERT: Thank you very much, witness. I have concluded the cross examination, Your Honor.
THE PRESIDENT: Witness, you stated concerning the Strobel case that in the first trial it had been pointed out to Strobel what he might expect, but I didn't understand who pointed it out to him.
THE WITNESS: The presiding judge said it.
THE PRESIDENT: Did he tell him what he might expect? Did he make that definite?
THE WITNESS: As far as I remember, yes.
THE PRESIDENT: What might he expect, according to the presiding judge's statement?
THE WITNESS: The death sentence.
THE PRESIDENT: Is there any redirect examination of this witness?
REDIRECT EXAMINATION BY MR. KING:
Q Dr. Lipps, I have your affidavit before me and there are several questions concerning to that I want to ask you at this time. First, concerning the question of the availability of documents to you during a trial, you state in the fourth paragraph of your affidavit
THE INTERPRETER: Your Honor, there is something wrong with the sound system.
THE PRESIDENT: One moment, Mr. King. It is near the recess time and we will give a little time to repair the transmission system. Do will recess at this time for fifteen minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY MR. KING:
Q. Dr. Lipps. before the sound, system went out of order, I was about to ask you a question based upon a statement in the fourth paragraph of your affidavit. In the statement to which I am about to refer you say, and I'll read the whole sentence: I was nominated, to assist the judge. The documents were not available to me, and I was left to arrive at my own conclusion during the trial. Now, in your testimony a few moments ago, you said that the documents were not prohibited to me and I quote your exact words as they came over the sound, system. Can you explain the difference between the phrase "not prohibited to me", and "not available to me"? It seems to me that those two statements are contrary; if they are not contrary, will you kindly explain the difference?
A. I only heard the English of what you said. I cannot understand, the English.
Q. May we have the sound system tested so that -- We will take it over again now, I am referring to the fourth paragraph of your affidavit, in particular to one sentence which I will read. You say: I was nominated to assist the judge. The documents were not available to me, and I was left to arrive at my own conclusion during the trial. Now, you said in your testimony this morning that the documents, and I quote your own words: "were not prohibited to me." Now, my question is this: Can you explain the difference between the statement in your affidavit and your statement in your oral testimony this morning?
A. The difference is this, I wanted to say that if I had tried I would have been able to get the files, but with the Special Court at Nurnberg it was not customary for the associate judge to see the files beforehand.
Q. And when you say, "not available to you," you meant by that in your affidavit that you did not try to get them; is that correct?
A. They were not passed on to me, and I did not make any effort myself.
DR. SCHUBERT: May it please the Court, I believe that once again we are confronted with a translation error which unfortunately occurs frequently. I gather from what Mr. King has said that in the English copy it says that the documents were not available to me, were not available. In the German text, which in this case, is the original, the witness has stated, "I have no insight into the files." In other words he did not say at the time, that he had no excess to the files.
MR. KING: Perhaps the explanation clears this portion of my failure to understand the difference, perhaps it clears that up.
Q. Dr. Lipps, I have observed in your cross examination that you were attempting to qualify rather broadly man of the statements which you made positevely in your affidavit. Now, I want to know if you still agree with some of those positive statements which you made; and, I am going to read them to you verbatim and ask you whether or not you still adhere to the views which you gave as of the date of this affidavit, 28 December 1946. Now, the first statement I am going to read appears at the bottom of paragraph 4, in which you say: "I consider it a humiliation of one's juridical character to have to assist at a trial presided over by Oeschey." Do you still agree with that statement?
DR. SCHUBERT: May it please the Court, I object to this question. I did not refer to this sentence in the affidavit in my cross examination, and concerning this sentence, which is not concerned with establishing facts, but which merely is an assumption; I, therefore, think this question is not admissible.
MR. KING: May I say one word. The tenor of the witnesses testimony was to change the impression of his affidavit. In order to find out what his impressions really are, we have got to go back to what he thinks about certain aspects of the Special Court Procedure, as he discussed it in his affidavit.
THE PRESIDENT: It seems to me that the question which you are challenging is supposedly the difference between the one and the other.
You should confidence yourself to those things where there was some possible change of attitude. In this, I think Dr. Schubert is right. There was nothing said about this, and, therefore, it stands without any challenge.
Q All right, let us proceed to the question in the Strobel case. Dr. Lipps, do you recall the charge of the first indictment in the Strobel case?
A The indictment said that a crime on the part of the Malicious Acts Law had been committed.
Q Do you recall what the charge in the second, indictment was?
A I do not remember that.
Q Would it surprise you to know that the charge in the second one was the same as in the first; do you recall that now?
A I know that in the transcript, it says the Public Prosecutor made a charge out under the Malicious Acts Law, I mean the second transcript.
Q And, what was the maximum sentence under the Malicious Acts Law ?
AAs far as I can remember, prison or penitentiary.
Q For how many years?
A Five or six years.
Q Five or six years. And, yet, in the Strobel case, both indictments were based on the Malicious Acts Charge, and yet, the defendant was sentenced to death; is that correct?
A Yes, but I suppose in his oral plea, the Public Prosecutor extended the charge to the effect that the defendant was also to be evaluated as a dangerous habitual criminal.
Q But, he was not tried for that was he, in the indictment?
A In the indictment, no.
Q Is it you opinion that the Judge should know the law, the Judge in the case ?
A (No Answer)
Q I will repeat the question. You say the sentence exceeded the charge in the indictment. My question now, is, in your opinion, should not the presiding Judge in the case know the law; and, in fact, I will add to it, did not Oeschey know what the penalty for malicious utternaces was at the time when he sentenced this man to death?
A He did know that.
Q That is all. I want to refer to the last statement in your description of the Strobel case in which you said: "Without doubt the sentenced surpassed the usual limits for habitual criminals and from a legal point of view was most objectionable." Do you still agree now with that statement you made on 26 December 1946?
AAt that time, I had a long talk with the gentleman who interrogated me, and at first, he wanted to say it was untenable. I defended myself against that and finally we agreed on that expression objectionable" or "highly objectionable." I said that because the defendant had not merely committed a number of crimes which wire similar, as usually happens in the case of habitual criminals, but because his previous crimes were different from his last crimes; but, even then, I was of the opinion that the sentence was not wrong. It was, if one wants to put it that way, "daring".
Q You did not think then, that a sentence of death for a of five to six years, which was all that was possible, was legally objectionable. I am asking you for you personal opinion now?
A I am of the view that the charge was extended at the trial but the Public Prosecutor and that the defendant, in fact, had been indicted as a dangerous habitual criminal at the trial, that is -
Q Would you like to take the record and find any place in the record where the defendant was indicted for anything more than a sentence calling for sentence of more than five or six years in a penitentiary? I would like to have you point that out to me if you think there is any possibility of finding it in the record. Would you like to undertake that?
A It was shown to me at the time, and I found nothing on that.
Q That is all. I would like to go on to another of your statements in the affidavit. You referred to the Wagner case this morning. The Wagner case is also mentioned, in the affidavit. You said in connection with this case: "Oeschey's behavour in this case was another proof of his brutalitv and pitiless character." Now, this morning you made certain statements which made me wonder if you still adhered to this view. I ask you now if you do, and I think this question can be answered, yes or no. You may explain afterwards but answer it first, please, yes or no?
A No.
Q Will you explain it?
AAt my first interrogation, I read through the files again, and I concluded it from that. Afterwards I had misgivings of the statement. I rang up the gentleman and pointed out to him that it was merely a conclusion which was not really allowed to me as a witness, as I was only there to testify as a witness, and as to whether one could draw the conclusion that it had been brutal, one could not simply say that. During my telephone conversation I pointed out that the facts may have been such as of the day of the trial, they were established, that is, to say, that Oeschey before the trial did not hear of the application.
Q Did not hear of what application? I am talking now about the Wagner case.
A Of the application of the defendant not to have Lawyer Buerkel, but another lawyer as her defense counsel.
Q Let us take another sentence in your affidavit. Referring to the Role case which you do not identify.
A I do not know it.
Q Well, I will tell you about it. The last sentence in your affidavit concerns this case as follows: "I consider the sentence a monstrous one which was unjustifiable." Now, this morning you said, you made a statement which was quite different from this statement which I have just read.
May I ask you -
A Well -
Q Will you wait a minute until I ask my question. May I ask you whether or not you still agree with the statement you made in your affidavit? Will you answer it first, yes or no, and then afterwards explain it, if you wish.
DR. SCHUBERT . Just a moment witness. May it please the Tribunal, I object. In this case, too - in the case of the Pole - I only asked for facts and I did not ask for opinions which the witness gave in his affidavit. I therefore believe that the redirect question here is just as unjustified as it was in the previous case.
THE PRESIDENT : Do you have some comment to make, Mr. King ?
MR. KING . Well, there is certainly a difference in this, there is no doubt but what he says in this case there was a justifiable murder, so that it is different from what he says in his affidavit. What he says in his affidavit is different from what he said this morning. I am just trying to test to what extent he changed his position, which I gather is considerable.
THE PRESIDENT: He may answer.
BY THE WITNESS :
A. If the case was such as I remember it, I maintain my opinion of that time. Today I merely said that I can not exclude the possibility that the Pole attacked his master with a pitch fork and injured him seriously. I no longer know whether that is how the case was.
MR. KING : Witness, I have only one more question. This morning you have changed considerably the statements which you made in your affidavit --
DR. SCHUBERT : Witness --
MR. KING : Wait a minute, I am not finished. There is, of course, no reason at all why you may not change your opinion. I take it that that is your privilege. But I would like to have appear on the record perhaps some of the back ground information which is in my possession as to possibly why you may have changed your opinion.
May I ask if you did not, on Sunday, -- last Sunday -- May 25th, together with a number of other affiants to affidavits which have here been submitted in evidence, gather at the home of a defense counsel, together with certain other defense counsel, and discuss the position you were to take upon cross examination here, and in that discussion was it not pointed out to you, certain benefits which you might derive from altering the statements you made in your affidavit, will you answer that question, please ?
A. It was not on the 25th-
MR. KING : What were you told ?
DR. SCHUBERT : I object to this question. First of all, the question has nothing to do with cross examination. I did not object to the question as to whether the witness had been asked by me, or whether he had been told that he would regret it, for it is a matter of course that I as defense counsel would neither hold out to the witness any advantages nor any disadvantages, according as to how he relates his testimony, but I do object to the witness being questioned as to the manner in which I talked with him. According to the ruling of the Tribunal it is my right to talk to the witness before his examination. Mr LaFollette, senior member of the prosecution, told me the same thing. The prosecution on its part claims the right to talk with the witness, and the defense never objected to that right. Therefore, I do not believe that it is admissible that the witness should be asked as to the contents of my conversation with him.
THE PRESIDENT : It is your right to talk to the witness. You did talk to him. No complaint about that. But the prosecution is entitled to know what was said. Your objection is overruled.