Q. In Nurnberg?
A. Yes, I believe in Nurnberg.
Q. And after that what happened? Did you set another trial date?
A. Yes, That date had to be postponed and I set another date.
Q. And what happened at the second trial date which you set?
A. Sometime before that second date the prosecution office asked to see the files.
Q. The prosecution asked to see the files?
A. Yes. The prosecution asked for the files.
q. To see them or to remove them from the court?
A. They wanted to see them.
Q. Did you grant them permission?
A. Under the Penal Code of procedure I had to hand them over, because the prosecution is entitled to see the files.
Q. And did they remove the files from your jurisdiction?
A. The files didn't come back to me in time for that second trial date.
Q. Were you told where they were when you inquired?
A. At first I wasn't told. I rang up Drescher, the General Public Prosecutor, and them I heard what had happened.
Q. What was that, please?
A. General Public Prosecutor Drescher told me that he had passed on the files to Reichstatthalter Kauffmann who had taken them away with him on a trip.
Q. And because Gauleiter Kauffmann had the files on the second trial date which you had set you could not proceed with the case; is that right?
A. That is right. Again I couldn't try the case.
Q. And what did Drescher tell you when you complained about that situation? What did he toll you to do?
A. He advised me to spend my time going for a walk.
Q. How while the Jensen case, was pending before you, did anyone ask you to quash the proceedings against Jansen?
A. Yes, my superior Schmitt, the President of the District Court, did that.
Q. Now let me see. Schmitt was the predecessor of Korn in that position?
A. Yes, Schmitt was Korn's predecessor as President of the District Court.
Q. Yes, And what did Schmitt ask you to do, specifically, when he got in touch with you about the Jansen case?
A. Well, first of all, I made a written report to Schmitt and told him that the file had been removed. Thereupon, Schmitt asked for the files. When the files arrived, Schmitt talked the matter over with me as to what steps were to be taken. Schmitt held the opinion that it was advisable to drop the case because it was only wanted the prosecution proceedings to be dropped on account of the matter being trifling, and for the rest he suggested that a private case should be made of it. That view was curious in so far as a private litigation would have had to be discontinued for the same reason, namely that it was a trifling matter. My talk with Schmitt ended by my telling Schmitt that I would report his views to my judges. That group of judges would have consisted of myself, as the presiding judge of a small chamber, and two other judges. But it never happened because Schmitt told me in in the course of that conversation that I was about to lose my job as presiding judge of the small chamber, and I did lose my post. On the first of January, I was assigned to a new post.
Q. And what happened to the tribunal, to the small chamber which you had been in before?
A. A judge whose name was Kreiss became the presiding judge of the small penal chamber.
Q. Do you have any opinion as to who ordered your removal?
A. My immediate superior was Schmitt, but one can assume for certain that Schmitt was not acting on his own initiative, but that he was acting on the instructions of this superior.
Q. Who was Schmitt's superior?
A. Schmitt's superior was the President of the District Courts of Appeals; at that time must have been Dr. Rothenberger.
Q. Yes. Now when the chamber over which you were presiding got a man to take your place, what was the subsequent history of the Jansen case before this new judge?
A. The new judge stopped the proceedings.
Q. Dr. Waldow, as a judge for many years in Hamburg, you have an opportunity in examine and see in operation the system, the so-called system of preview which I believe was inaugurated by Dr. Rothenberger there. I would like to show you, Dr. Waldow, one moment please, I would like to show you, Dr. Waldow a case that I believe you were involved in, in which the system of preview and review is demonstrated.
May I ask that the document NG-2220 be marked for indentigication and be given No. 597 reserved for it. May the record also show that I am now handing the original to Dr. Waldow for perusal. I have English and German copies which we will distribute at this time.
THE PRESIDENT: Let it be marked for indentification 597. Do you propose to offer this today?
MR. KING: Yes.
BY MR. KING:
Q. Dr. Waldow, the document I have place before you, identified by the numbers NG-2220 was--my Bolish is not very good, I am afraid was the Komorowski case. I would like to have you briefly tell the Court was connection you had with the Komorowski case and when I will ask you one or two additional questions.
A. The Komorowski case was tried by the Altona Penal Chamber, and I was a judge on that chamber at the time.
The court became convinced that the defendant was guilty and sentenced him two years in the penitentiary. He had committed a sex crime.
Q. One moment, Dr. Waldow. He was sentenced to two years under what statute, may I ask? Do you happen to recall?
A. He was convicted under Article 176; Section of the German Penal Code.
Q. Will you proceed please? I am sorry I interrupted you.
A. A little while after that verdict was passed, President of the District Court Koru called a meeting. At the meeting, that verdict was criticized as having been too lenient. An appeal was made, and the Reich Supreme Court revoked the verdict. The Reich Supremo Court transferred the case to the District Court in Hamburg, and at the retrial the Court formed the opinion that the defendant had been drunk and convicted him for drunkenness and not for a sex crime. At the retrial I was not present for the penal chamber at Altona had been dissolved in the meantime.
Q. Now, when Dr. Korn called you in, you and the other judges, to criticize you for the decision in the first hearing of the case, is it your recollection that what he said is accurately reflected in the first letter dated Hamburg, 6 May 1942 and signed Korn, which you find as the first page of the exhibit?
A. Yes. Naturally at that time I didn't know this letter, but the things which Korn told us at the time are identical with the letter here.
Q. In your experience, Dr. WaldoW, as a judge in Hamburg would say that this was a rather typical example of the way preview and review was used to control decisions of judges?
A. Yes, it is a typical example, but I should like to point out that conference was held shortly after Hitler had made his famans speech against the german administration of justice. That speech had upset the judiciary considerably, and in Hamburg had caused the introduction of the preview and review method.
Q. I have just two more questions, Dr. Waldow. What experience have you personally had with the practice of taking people into protective custody without court trial?
A. It was well known that National Socialism had political opponents from the very moment of the seizure of power and dealt with them severely. I myself became acquainted with these practices as in 1944 I myself spent three weeks in protective custody. Also, I remember the case of an attorney - Bukl was his name. The Gestapo took him into custody too and treated him badly. Then I can recollect another case where a defendant who had violated Article 175 of the Penal Code, that is a sexual crime committed between men, and the defendant asked for a long prison term because he wanted to avoid a transfer to the Gestapo.
Q. Dr. Waldow, while you were in protective custody, did you let me withdraw that. Did you ever hear, either before or after yourself were a victim of protective custody, of the general practice, aside from the specific incidents which you have recounted for us?
A.- As concerns penal practices, you mean the treatment of prisoners?
Q.- No.
A.- Or just what are you referring to?
Q.- I mean the general practice of putting people in protective custody without having benefit of court proceedings. Was that generally known to you even before you became a victim of it?
A.- Well, that that was a very general practice I knew.
Q.- Yes, one final question, Dr. Waldow. Will you look at page 1 of the document which you have before you, and you will notice there that Korn addresses a letter to the President of the Hanseatic Court of Appeal, that is Rothenberger, of course, attention Local Court Justice B-a-r-t-s-c-h-. Do you know the individual of that name?
A.- I don't know Bartsch.
MR. KING: With the exception of offering the Exhibit 597, we have no further questions of this witness at this time.
THE PRESIDENT: You mean you are offering 597 now?
MR. KING: Yes.
THE PRESIDENT: The Exhibit is received. You may cross examine.
CROSS-EXAMINATION BY DR. WANDSCHNEIDER (Attorney for the defendant Rothenberger):Your Honor, during my cross-examination I should like to restrict myself to the Komorowski case, because at the beginning of his testimony the witness again referred to the Jansen case which I cannot deal with until tomorrow because as I mentioned in connection with the previous witness, I first have to see the file.
Q.- Witness, the Prosecutor showed you this file. It is a letter from Korn dated 6th May 1942, and it relates to a conference of judges which you- attended. You have said here that this was a case of preview and review. Is it possible that you made a mistake there because after all the Fuehrer's speech was only made at the end of April, and according to Dr. Rothenberger's own account, at this time he was only preparing that method of preview and review.
A.- I was misunderstood somewhat. The preview and review was an arrangement between the President of the District Court of Appeals and the highest judges, and this meeting which Dr. Korn called was a meeting of quite a different kind. This was simply a conference which the president had called and which the judges of his district court, and it wasn't really and instance of preview and review.
Q.- Thank you. I only wanted you to explain the matter, because this conference of judges has nothing to do with the system of preview and review. The Prosecutor asked you whether you knew that many people were taken to concentration camp without having been tried before a court, and you answered that question in the affirmative. Now, I should like to ask you, in view of the political situation in Germany were people not from the very beginning always taken to concentration camps without first consulting the administration of justice.
A.- Well, I didn't mean to say that, it wasn't the administration of justice that took people to concentration camps; it was the National Socialism, which quite generally after the seizure of power put political enemies into concentration camps.
Q.- Is it right that the administration of justice was quite powerless to do anything about this?
A.- Anyhow, it did not do anything against it; it didn't matter whether it was powerless.
Q.- The President of the District Court of Appeal of that time, Korn in this letter displayed a severe view concerning the application of the legal provisions to Poles. Do you know whether that view in any way was also the view of Dr. Rothenberger?
A.- No, I know nothing of Dr. Rothenberger's personal opinion. In this connection I simply have to assume, and I believe that it was the general opinion of that time, that President Korn was not voicing those opinions on his own initiative, and that at that time he was complying with instructions from his superior.
Q.- That is a conclusion which you are drawing from conditions of subordination in Germany. Is it correct that otherwise in Hamburg that hardly any general practice concerning Poles could develop for the very reason that hardly any Poles stayed in Hamburg?
A.- That is correct. Naturally we only had a very few Polish cases there.
Q.- Witness, concerning the preview and review, about which the Prosecutor asked you in connection with this case, did you ever attend any preview or review?
A.- No, I never attended any preview or review.
DR. WANDSCHNEIDER: Thank you. As I want to restrict my questions to this subject, I have finished my cross-examination; however, I reserve the right to cross-examine the witness on the Jansen case to morrow.
REDIRECT-EXAMINATION BY MR. KING:Q.- Dr. Waldow, do you recall when the practice of preview and review was formally established in Hamburg?
A.- You want me to name the date?
Q.- If you can recall it, yes.
A.- My guess is that it was in the summer of 1942.
Q.- Dr. Waldow, I have a document here which I would like to show you, and ask what conclusions you come to after you have read it. After you have read it, will you please tell the Court what it is and what conclusions you reach on the basis of it?
DR. WANDSCHNEIDER: One moment. Without knowing the document I cannot judge whether this falls within the scope of redirect examination and, therefore, may I please have a look at it for a moment?
MR. KING: I had the same problem with Dr. Wandschneider this morning but I will give him a copy.
DR. WANDSCHNEIDER: Thank you.
A.- I gather from this document, -
DR. WANDSCHNEIDER: One moment; just a moment, witness, please. I have no objection to questions being asked in connection with this.
A.- I gather from this document that the preview and review was established somewhat earlier than I seemed to remember; it was established as early as May.
Q.- What date in May, please?
A.- The document is dated 4th of May, so that it must be have been established soon after.
Q.- What is suggested in the document which you have before you as to the time and place of meeting of preview and review participants?
A.- I see that the presidents were to attend the conferences and that the conferences were to be held every Friday.
Q.- Now, do you recall the date of your meeting with Dr. Korn in connection with the Komorowski case?
A.- You want mo to say when we had that meeting with President Korn?
Q.- Yes, the date on the document is May 5th. Have you any reason to doubt that that date is incorrect?
A.- No, I have no reason to doubt that.
Q.- So that Korn's conference with you and the other judges was held the day after the notice was circulated which established the regular meetings of preview and review participants; that is correct, is it not?
A.- One day later -- that may be right.
MR. KING: I have no further questions to ask of this witness.
THE PRESIDENT: The witness will be excused until tomorrow morning at 9:30 -- return to the Court at that hour, witness.
The Tribunal will recess at this time.
(The Tribunal adjourned until 19 September, at 0930 hours.)
Official Transcript of American Military Tribunal III in the matter of the United States of America against Josef Alstoetter et al, defendants, sitting at Nurnberg, Germany, on 19 September 1947) 0930-1630, The Honorable James T. Brand, presiding.
THE MARSHAL: 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 ascertain if the defendants are all present?
THE MARSHAL: All the defendants are present in the courtroom.
THE PRESIDENT: There has come to our attention several applications for both witnesses and documents. These applications are dated September 17. We see no reason why it can be said that any of them have been made in timely fashion and counsel have been repeatedly warned to get their applications in early. Notwithstanding the fact that they are not timely, we have approved the applications and it is done under these circumstances: counsel are notified now that there will be no delay by reason of failure if there is a failure of any of these witnesses or documents to reach here before the closing time for the reception of evidence. If they are received early next week, they may be offered, but the documents have been approved with this qualification.
One of the documents apparently asks for the attendance of a witness in the Russian Zone. Counsel certainly knows by this time that that is a matter which takes time and which involves great difficulties. I may add that in the opinion of the Tribunal, the reception of evidence should be closed as early next week as possible and in no event should continue beyond next week. As to the reception of documents, I realize that this applies chiefly to the Prosecution. Other Tribunals have found the same experience that we have had and we suggest to Counsel that at this late date such documents as are received will be offered and ruled upon and that it is unnecessary to read them. If this Tribunal has erred at all, it has erred in failing to sufficiently insist upon an expeditious trial.
We have done that for the benefit of the defendants. We have given them a very wide latitude in the production of witnesses and documents. The time has come now for expedition and speed in closing up this trial.
You may cross examine as to the document Dr. Wandschneider which you examined last evening.
CROSS-EXAMINATION - Continued EDMUND WENTZENSEN - Resumed BY DR. WANDSCHNEIDER:
Q Witness, yesterday you testified about the Schlueter-Jansen casea case where you pronounced the judgment, the extracts of which are available here in the files. Did you see those files?
A I had those files before me yesterday while I testified.
(Witness is offered the files)
Yes, those are the files, Naturally, I only glanced' at them.
Q In these files, at the very beginning, there is a letter from the SA Brigade No. 12, Hamburg, in which the Brigade asks the police authorities to let them have the case file. In the reply, it is stated that the SA Brigade is to be kept informed about the case. Then there is only your judgment dated 15 May 1945. Until that date when you passed judgment, was any attempt made either before the trial or during the trial by the SA or by the Party to exert any influence on the proceedings?
A No.
Q Do you know that the SA was being kept informed before hand about the proceedings?
A I can't tell you that now, but I don't believe so.
Q You only gathered that from the files?
A I don't have the files before me at the moment.
(Witness is offered the files)
THE PRESIDENT: Are these files to be in evidence? If they are, there is no need to ask a witness what they contain.
MR. KING: Your Honor, this is the Document NG-2410 which was marked for identification yesterday. There was no German text available and for that reason we didn't offer it in evidence yesterday.
THE PRESIDENT: I ask if you propose to offer it.
MR. KING: Yes, we do propose to as soon as the German copy is ready.
THE PRESIDENT: The instrument will be the best evidence of its contents.
BY DR. WANDSCHNEIDER:
Q Have you now convinced yourself, witness, that the SA from the very beginning of the investigating procedure knew that proceedings were to be instituted against Schlueter and Jansen?
A I have now convinced myself of that fact, but I should like to emphasize that I may have known beforehand but can't tell that from recollection.
Q It was the 15th of May 1935 when that trial was held, was it?
A No, as you can see from the first page of the judgment, the trial opened on 10 May 1935. It went on for four days and closed on 15 May.
Q Well then, the 13th of May was the last day of the trial and was the day you announced your judgment?
A Yes.
Q Did you ask representatives of the SA to attend the triad?
A In view of what I may call the scandalous behavior of the SAwitnesses, Dr. Skok, as an assistant of the Prosecution, asked me whether it would be advisable to ask the superiors of these SA men to attend. He suggested that they should be asked and with my agreement he asked the SA superiors, and on the second or third day of the trial they appeared and attended the trial.
Q Is it correct that you excluded the public, at least in part, when you announced your judgment?
A The transcript should show that. I don't remember. Perhaps Public Prosecutor Skok can say something about that. I don't think that's out of the question that was so.
Q May I just show you the last page? Would you read through it, please?
(Witness is offered the document)
A The document which has been shown to me is page 45 of the written opinion which I passed on this case. I can sec from this page at the closing stage of the reading of my opinion I excluded the public because following the passages pertinent to the case, there were general statements concerning the SA being made -concerning their dangerous behavior.
Q May I have the judgment back, please? Why was it that you excluded the public? The reasons you have mentioned, were they all your reasons? Go on, please.
A There were reasons which the law calls reasons of state security.
Q If you were of the constitutional opinion that the public itself exercises the best control on jurisdiction, why did you think then that the security of the state would be endangered if you admitted the public?
A Because of the fact that the superiors of the SA defendants had been asked to attend the trial for the purpose of taking the speediest possible disciplinary measures against the SA members who had been indicted and who were ready to commit perjury as witnesses. That was a matter which did not so much interest the public as it concerned the institution of the SA, and that was why the statements which I made after I pronounced the actual judgment were considered an appendix, and those statements were no longer of any interest to the public.
Q Those disciplinary measures, could they not be taken by the superiors of the SA, even if the public had attended? Did that have anything to do with the fact whether the public was present?
A The disciplinary measures could have been taken even if the public had been present, but they were not in any way connected with the case as such.
Q Witness, evidently at that time -- no, no. I don't want to ask that question. It might be a leading question. Were you at that time of an opinion which wanted to bring about enlightenment through a properly conceived and interpret National Socialism correctly because at the end of your opinion you wrote. "in the interest of the National Socialist movement and the Fatherland, I hope that such a change will occur soon through such a criminal trial as this one."
A Yes, I beat the SA with its own weapons. That was what I wanted to do at this trial. I wanted to show the difference between the words and the deeds. Therefore, I was highly indignant when Dr. Rothenberger did not give me any support. On the contrary, Dr. Rothenberger charged me with having quoted Hitler's decree in my judgment, in which Hitler says. "The SA has to give an example. No German mother should hesitate to let her son enter the SA or another National Socialist formation." I received the criticism by Dr. Rothenberger telling me that I had completely misunderstood that decree. I do not know even now what that misunderstanding should have been.
Q Concerning the further progress of that trial, you have already testified here, and therefore I need not ask you any further questions. I have finished.
REDIRECT EXAMINATION BY MR. KING:
Q Judge Wentzensen, just one or two short questions. You testified previously that Rothenberger called you in connection with the Jansen case and rebuked you for your attitude. He called you in again later. Now in the first time that he called you in, was it evident to you that he had read your opinion in the Jansen case?
A I wort to see Donato?. Rothenbergor twice. Our first conversation ended with my asking Senator Rothenbergor, after he had rebuked mo sovordly, whether ho had road my written opinion at all. Ho said ho had not. I then asked him to acquaint himself with my opinion. His reply was that ho would do so and ho would call me back to him after he had read the opinion. But he also told me that another judge who had attended the trial and the pronouncement of the judgment had told him that my oral opinion had been bad. I asked Dr. Rothenberger to give me the name of that person. He did so and told me that it had been Dr. Moeller, Director of the District Court -Landgerichts director. Then I told Dr. Rothenberger that Dr. Moeller had only board five minutes of another reading of the opinion at the beginning, although it had taken an hour to read out the whole of the opinion, Further, I told Dr. Rothenberger that the Senior Public Prosecutor Schubert had been present during the whole time the opinion was being read out, and that Dr. Schubert had approached me afterwards and had told me that this was a nasty case but that my opinion had been excellent.
Dr. Rothenberger told me that he would discuss the matter with Dr. Schubert. My second conservation with Dr. Rothenberger occurred later, and at that time Dr. Rothenberger told me that he had now read my written opinion. The judgment was a theoretical judgment. Furthermore, he told me that the prosecution had handled the matter quite incorrectly and for that reason he would take the matter up with the General Public Prosecutor too. The SA had complained considerably about me and had been quite justified in doing so. I had bawled out the defendants, and the SA was complaining that the Marxist witnesses had boon taken under oaths by mo whereas I had not believed the SA witnesses and had told them I suspected them of having committed perjury. He told me once again that I would have to leave the Service of the Penal administration of Justice. That was mainly what passed between myself and Dr. Rothenberger in the course of the two visits I had to pay Dr. Rothenberger in that matter.
Q Thank you, Judge Wentzensen. You testified yesterday that you had a conversation with Letz at one title in which he said, "Do you think it is good to be an adjutant?"
I don't understand: whose adjutant was Letz at that time?
A What Letz wanted to say was that he found it unpleasant to be an adjutant to Dr. Rothenberger, Adjutant means in Germany ...
Q Excuse me. Then the answer to the question is that Letz was Dr. Rothenberger's adjutant at that time?
A He said that he was Rothenberger's adjutant and he was not satisfied with that, yes.
Q Now, Dr. Wetzensen, yesterday Dr. Wandschneider asked you a question concerning tho Bulk case as to how you knew or how Dr. Reuter knew thus the files reached him by mistake in the first instance. Now since yesterday, have you had an opportunity to examine the original files and can you offer an explanation based on the original files as to how tho original files reached Dr. Reuter by mistake? May I show you the original?
(Files offered to the witness)
A Yesterday in a hurry when I saw the photostat for the first time I could only just glance at it. The Prosecution yesterday gave me tho opportunity to scrutinize the photostat, and I found that I did not answer Dr. Wandschneider properly.
Q Dr. Wetzensen, if you find that portion in tho original photostat copy and it's very short, it might be well to read it, but if it's not very short, kindly just summarize it for us.
THE PRESIDENT: The witness was saying that he had erroneously answered a question.
MR. KING: Yes.
THE PRESIDENT: He is certainly entitled to make his explanation, whoever it may favor.
THE WITNESS: Dr. Wandschneider asked me yesterday whether I could remember what reasons Dr. Reuter had given me for the files having reached the prosecution by mistake. Now that I have seen page five of those files, - remember again, that is page five, No. 2489. For the police president ordered that the official cremation business connected with the funeral or of Buhk is to be handled by the Gestapo, and the same Gestapo then ordered through one of its staff, Handrich, that the matter should be handed over to the prosecution for the prosecution to give the permission for the funeral to take place, necessary under the law.