"The Commander of the Armament District Wuerzburg; by order: Heinrich; signed Heinrich, Major; Indorsement; State Police Branch Office, B No. II B 4 - VOE/Fro; Wuerzburg, 10 April 1942.
"1. Acknowledge.
"2. To be filed under: Evacuation of Jews from Mainfranken.
By order, signed: Voelkl."
Q Do you find in this same file an official doctor's certificate dated 23 March, 1942?
A Yes.
Q And pertaining to Stefan Israel Loebhardt?
A That is right.
Q Will you read that letter including the person to whom it is addressed, and disposition of it, will you?
A May I first make a remark?
Q Yes.
A On the top of the letter in pencil there is the following: ?"To be taken along."
"State Health Office, Gerolzhofen. Gerolzhofen, 28th March, 1942. Official Doctor's Certificate, made out for Stefan Israel Loebhardt, born 17.8.1897, living at Gerolzhofen, Marktplatz 131.
"At the request of the District Office in Bavaria of the Reichs Association of Jews the above has been examined by me today.
"The 44 year old man is in a lowered general condition and suffers from symptoms of paralysis of the left arm: of the left leg, and of the face, as a result of an injury received during birth. In addition he suffers from a traumatic epilepsy incurred as a result of an accident in the year 1937. The attacks occur again frequently in recent times. The last attack took place this morning. Two tongue bite wounds are traceable.
"The examined person is not fit for evacuation which is expected to take at least three or four days by railroad. The transportation would only be possible if a special compartment, with a medical aid man, could be placed at the disposal since during the train ride, epileptic attacks have to be expected.
Signed: Dr. Damacko, Medical Councillor, Medizinalrat." There is also the stamp: "State Health Office, Gerolzhofen."
"State Police - Branch Office, B No. II B 4 VOE/Fro; Wuerzburg, 1 April 1942.
"1st. Per telephone conversation with the County Councillor of Gerolzhofen, the Jew Stefan Israel Loebhardt is fit for evacuation. According to his opinion he can even work yet. L. is therefore to be evacuated.
"2nd. To be filed under: Evacuation of Jews from Mainfranken.
By order, signed: Voelkl."
Q Will you tell the Tribunal where Gerolzhofen is with reference to Wuerzburg and these other three cities?
A South of Wuerzburg, I believe; about forty or fifty kilometers.
Q Now, do you find in this file a letter from a Ukraine citizen wanting a rucksack?
A Yes.
Q What is the date of that?
A Just a moment, sir. The date is the 23rd - 4 - 1942.
Q Just a minute; will you make distribution of this, please. All rights will you read it please? Have you any comment to make on this letter?
A There is a stamp on top, "Secret State Police, State Police Branch Office, Wuerzburg; Received 24 April, 1942, Department II B;" and below the letter are stenographic notes in German stenography as follows: "Summoned Monday, 4th May 1942, at ten o'clock."
Q In checking those, were they read to you by a German expert in German shorthand?
A That is right
Q And you wrote them down just as they were read?
A Yes. In fact, 4 May, ten o'clock was written in longhand.
Q Yes, thank you. Now, will you read the rest of the letter; the matter at the bottom also.
A OK.
Q Yes.
A. "To Higher Authorities of the State Police. As a collaborator and fellow-member of the party movement, I take the liberty to lodge with you the request whether it would not be possible to obtain for myself a knap-sack at the time of the evacuation of the Jews at appraised cost price. I am in possession of an urgent ration ticket for this item. Even the largest firms of the Reich are not in a position to fill the order of a knap-sack placed by a local firm. I should be delighted to be able to look forward to a favorable answer.
"For your troubles, thank you in advance. Heil Hitler. Signed: Popp Ernst, Wuerzburg, Woellergasse 24.
"State Police Branch Office, B No. II B 4 VOE/Fro; Wuerzburg, 5th April, 1942.
"1st. Popp has been informed to go to Finance Office Wurzburg in order to buy a rucksack.
"2nd. To be filed under: Evacuation of Jews (25 April, 1942) ; by order, signed: Voelkl."
Q Now I ask you, do you find in that file a final report dated 6 August, '43?
A Yes.
Q Have you got the original before you?
A That is right.
Q And will you read the date again? Did. I mis-state it?
A The 6th of August, 1943.
Q Thank you. Will you please read it?
A "Secret State Police; State Police Main Office, Numberg-Fuerth, Branch Office Wuerzburg. FRO.
"1. Final Report, based on the decree of the Reichs Security Main Office, RSHA, of 2l/5/l943-B, No. IV-B-4-a- 2093/42g (391).
"Sixty-four Jews from Wuerzburg have been evacuated on 17 June 1943. Seven of these Jews were transferred to Theresienstadt; the remaining 57 Jews have been evacuated to the East. With this last transport all the Jews who had to be evacuated according to instructions issued have left Mainfranken as follows (here are only the Jewith mixed marriage partners and Jews who adopted the Christian faith) -
"On 27 November 1941, to the East, 202 persons, first transport.
"On 24 March 1942, to the East, 208 persons, second transport.
"On 25 April 1942, to the East, 850 persons, third transport.
"On 10 September l942, to Theresienstadt, 177 persons, fourth transport.
"On 23 September 1942, to Theresienstadt, 562 persons, fifth transport.
"On 17 June 1943, to Theresienstadt, 7 persons, sixth transport.
"So that, totally, 2,063 Jews from Mainfranken were evacuated. The furniture, the clothing and the laundry items left by the Jews were given to the Finance Offices of Mainfranken (mainly to the Main Finance Office at Wuerzburg, and during the first transports to the Chief Finance President at Wuerzburg) and turned into cash by them. The confiscated articles and items of clothing have been turned over to the Finance Office at Wuerzburg after each evacuation and have been utilized by that office.
(See recepts in each of the evacuation filed) The secured labor certificates, the insurance cards as well as the collection books belonging therewith have been forwarded to the concerned. Everything else can be seen from each of the evacuation files.
"2. To be filed under: Evacuation of Jews from Wuerzburg on 17 June 1943. By Order: Signed, Voelkl."
" Returning to these pictures a minute, which you have identified in Prosecution Exhibit 2421, are those pictures, from your knowledge and study of the subject, taken of transports of Jews, what were called transports?
A That is perfectly right.
Q And do you find -
A I can show the Court more pictures, if they wish.
A You have more in there of the same kind?
A If the Court would like to see them.
Q Just tell us how many more of this same type of picture there are in there.
A There are exactly 24 more pages like this (illustrating).
A Each containing from four to six pictures?
A That is right.
A Do you see civilians other than Jews?
A That is right.
Q Standing, observing these things?
A Yes.
A In the streets?
A Yes.
A Did you personally know -
A Right here (illustrating) you can see German civilians, and right here (illustrating).
Q The last picture you pointed to was the lower one of three, page three?
A The upper one on the first page.
Q The upper one on the first page, upper left?
A The two top ones here (illustrating). In fact, all three of them.
Q That is the one that has three, two on the top and one on the bottom?
A That is right.
Q Now -
A Right here (illustrating), here, here, here, and here too.
Q Now, let me ask you one final question. Did you know any of these people that were transported to the East?
A That is right.
Q About how many did you, to your personal knowledge, know?
A I should say at least fifty to sixty people.
Q And how many of those came back alive, to your knowledge?
A None that I know of.
Q Now, do you know a Miss Lipton, who is also employed in OCC?
A That is right; she worked with me.
Q Did you discuss this file of the Wuerzburg evacuations with her or in her presence?
A In fact, I got part of it from her.
Q Did she have another file of a similar character there, and where from?
AAfter we found this file she came up to me, during the afternoon of the same day when we found this, and pointed out to me that she had found Gestapo files of the same character from the Gestapo of Cologne.
Q Did you look through the file, make casual notes?
A I examined the file.
Q I will ask you whether you found letters from employers there similar to those that you read.
A I found similar letters in there. In fact -
Q Did you find pictures similar to these pictures?
A I couldn't say that; I couldn't say that. I went very hurriedly through it. However, I saw the same instructions given by the Reichssicherheitshauptamt to the Gestapo Cologne. In fact, they were the same.
Q As in this file?
AAs in the Nuernberg-Wuerzburg file.
Q The one which you read into evidence?
A That is right.
Q And that referred, of course, to the State Secretaries' meeting of 20 January 1942?
A That is right, May I shy another thing?
Q Yes.
AAs far as these files are concerned, the Reichssicherheitshauptamt was the central place where these instructions were forwarded to the lower level of the Reich.
Q Yes, the instructions that you read as being addressed to Wuerzburg?
A That is right.
Q Now, let me ask you one thing more. That is a file which was found here as a captured document, is that correct?
A That is correct.
Q I shan't ask you to read them, but will you tell the Tribunal how many letters of a similar character - those that you read from the manufacturers asking that Jews be deferred - are in that Wuerzburg file, approximately?
A There are about ten more, at least.
Q All right. And may I ask you, with reference to the towns from which they come, are they the same towns that those are from, or other towns?
A No, no. There is one more from Aschaffenburg, but the rest of them are from the district of Wuerzburg.
Q From your knowledge of that country, approximately how far is that from Wuerzburg?
A Fifty to sixty kilometers, even nearer than that.
Q Yes.
MR. LA FOLLETTE: I have no further questions.
THE PRESIDENT: It appears that there will not be time to proceed with the cross examination this afternoon.
Wow, with reference to proceedings on Monday, I presume it would be more orderly to complete the examination of this witness, after which we will expect all defense counsel to be prepared, in suchorder as they may arrange among themselves, to present and examine all witnesses whom they have and who are available or can be made available at that time and during the following periods.
DR. SCHILF: May it please the Tribunal, I should like to be permitted to offer an apology because I failed to be here on time this afternoon. I had made an agreement with the gentlemen of the prosecution, or I believed that I had made an agreement, that it would not be necessary for me to appear at that time. However, because the examination of witnesses proceeded very quickly, I was late, and I beg to be excused.
THE PRESIDENT: We will consider only the plans for the future, and the Tribunal, I hope, has made it clear that we expect counsel to be ready.
We will recess until Monday morning at 9:30.
(At 1630 hours, 19 September 1947 , a recess was taken until 0930 hours, Monday 22 September 1947.)
OFFICIAL TRANSCRIPT OF MILITARY TRIBUNAL III IN THE MATTER OF THE UNITED STATES OF AMERICA AGAINST JOSEF ALSTOETTER, ET AL, DEFENDANTS, SITTING AT NURNBERG, GERMANY, on 22 September, 1947 - 09301630 - 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: May it please Your Honor, all the defendants are present in the court.
THE PRESIDENT: Let a notation be made.
Had you finished with the direct examination, Mr. LaFollette?
MR. LA FOLLETTE: Yes, Your Honor, I would only like to be sure of one thing. I identified NG 2421 as Exhibit 600. I am not sure *** whether your Honor's record shows it was received.
THE PRESIDENT: Exhibit 600 was received.
MR. LA FOLLETTE: I have concluded the direct examination.
THE PRESIDENT: There are some identified but unreceived exhibits. I presume you know that?
MR. LA FOLLETTE: Yes, Your Honor, after the cross examination of this witness I would like to offer those, I have about four.
THE PRESIDENT: Is there cross examination of this witness? There appears to be no cross examination. The witness is excused.
MR. LA FOLLETTE: If your Honor please, our records show that NG 2122 was identified as Prosecution Exhibit 549. I now formally offer the exhibit.
THE PRESIDENT: Just a moment.
MR. LA FOLLETTE: Yes, Your Honors. It was offered during the cross examination of the defendant Joel, Your Honor.
THE PRESIDENT: That was the efficiency report of Joel, Exhibit 549?
MR. LA FOLLETTE: Yes, Your Honor.
THE PRESIDENT: What is the document number?
MR. LAFOLLETTE:NG 2122.
THE PRESIDENT: The exhibit is received.
MR. LA FOLLETTE: I have the German and English here for distribution. NG 2124 was identified as Prosecution Exhibit 550.
THE PRESIDENT: It is received in evidence.
MR. LA FOLLETTE: I have that in German and English. Dr. Koessl is in the court room. I was informed that he had withdrawn his objection to Exhibit 579, NG 2332. If that information is correct, I will offer it.
THE PRESIDENT: Just a moment, please.
MR. LA FOLLETTE: Yes, Your Honor.
THE PRESIDENT: That was NG 2332?
MR. LA FOLLETTE: Yes, Your Honor. May I make inquiry, just a minute, I would like to inquire of Dr. Koessl whether or not he would feel obliged to call this affiant for cross examination if the affidavit is admitted. If he would, then I shall not offer it. I understood he agreed it might be offered but I don't know whether there was a condition attached that he would want to cross examine. If that is the condition under which it is offered, I shall not formally offer it.
DR. KOESSL: I wish to withdraw my objection to the Oppenheim affidavit. There are no conditions I wish to make.
THE PRESIDENT: You will not require that he be produced for cross examination?
DR. KOESSL: No.
THE PRESIDENT: Very well, thank you doctor. It will he received in evidence - 579.
MR. LA FOLLETTE: Now, if your Honors are ready, document 3757 PS was identified as Exhibit 564, during the cross examination of the defendant Barnickel. Originally the German mimeograph was incorrect. That has now been corrected and I have it available for distribution and I now offer on behalf of the Prosecution Exhibit 564.
THE PRESIDENT: Exhibit 564, being PS 3757 is received.
MR. LA FOLLETTE: 3757, yes sir.
MR. LA FOLLETTE: I am advised there is one more Rothenberger document which is identified but has not been processed so that we can offer it. The Prosecution, if defendants are not prepared to go ahead, will be prepared during the morning, whenever there is a lull, with the Court's permision, to offer further documents in rebuttal but this cleans up all that had been identified and not formally offered with one exception.
THE PRESIDENT: How about Exhibit 595 and 596?
DR. SCHILF: For the defendant Klemm: I intend to call the witness Franke now. Franke is a witness who has deposed an affidavit for the Prosecution and all I need to do now is cross examine him.
THE PRESIDENT: Is that agreeable with the Prosecution?
MR. LA FOLLETTE: I am sorry, I did not hear, Your Honor.
THE PRESIDENT: Counsel wants to cross examine the witness Franke.
MR. LA FOLLETTE: Yes.
THE PRESIDENT: Let me ask you, Mr. La Follette, Exhibits 595 and 596 appear to be identified but not offered. Were you intending to offer them or not. I may have neglected to mark them?
MR. LA FOLLETTE: If your Honor, please, the Prosecution record indicates they were formally offered, if we are in error and the Court will permit it, we will check it immediately and after the cross examination of this witness, we will advise you.
THE PRESIDENT: The record will show that this witness has already been sworn as a witness on Friday, you may cross examine.
CROSS EXAMINATION DR. HORST GUENTHER FRANKE.BY DR. SCHILF:
Q. Witness, will you please once again tell the Court your name?
A. Dr. Horst Guenther Franke.
Q. Dr. Franke you have deposed an affidavit which I have in front of me, dated the 6th of May, 1947, document NG 1474?
A. Yes.
Q. In connection with this affidavit I would like to ask you a few questions.
THE PRESIDENT: Dr. Schilf, will you kindly tell us the exhibit number of that affidavit.
MR. LA FOLLETTE: Exhibit 515, Your Honor.
THE PRESIDENT: Thank you.
BY DR. SCHILF:
Q.NG 1474, document book 3-4 Supplement. Dr. Franke, in this affidavit you begin by describing your career at the Reich Ministry of Justice, then you pass on to the fact that in the autumn of 1943, you had settled down to your work at the Reich Ministry of Justice. According to your statements in the affidavit in August and September 1943 you became the successor to the defendant Joel and were placed in charge of the section on crimes against the war economy in Department IV. I assume witness, you have a copy of your affidavit in front of you, have you found that passage I mentioned just now?
A. Yes.
Q. You then say and I quote: "In the course of 1944, at the Ministry, in practice it was found that the delimitation of malicious acts crimes and the undermining of military morale was not carried out properly." In other words, you say that happened in the course of 1944. According to my investigation that is an error on your part, this section which was to deal with the delimitation of those two types of offenses was established before 1944. Would you comment on that, please?
A. It is possible that that section was established sooner. When I was interrogated I was asked to fix that date as closely as possible. At that time I pointed out that my memory makes it impossible for me to fix the date more accurately than I did in this affidavit. If you have any evidence to show that section was established at an earlier date, I must concede that is possible.
Q. Without showing you the evidence which I have and which the Tribunal has, the report lists, for the information of the Tribunal, that exhibit number is 252, document book III A, and those lists have been mentioned here a great many times. Witness, those report lists mentioned your section and they mentioned it as early as January 1944. Would you now be able to decide that at that time the section had been established?
A. Yes, that means in January 1944 that section was established, and the dates must be correct then to the effect that the event which is described on page I must have occurred at the end of 1943.
Q. I am now passing on to my second point. In your affidavit you describe the fact that in practice there were two channels through which the cases reached your section. Would you please open the book?
A. I have found the passage.
Q. You say here that in malicious act cases there was a so-called general duty to report on the part of the Senior Public Prosecutor with the Special Courts, and you then go on to describe how the decision, whether it was a case of undermining military morale or a case against malicious acts, how that decision was made, and you say that a report was made to Minister Thierack in the presence of under-secretary Klemm and Ministeral Director Vollmer, and I quote: "Whenever the Minister was not present, the report was made to under--secretary Klemm", is that merely meant as an explanation of the organization or do you actually remember that in the absence of the minister you reported to Klemm only, who was then Under-secretary?
A. The passage which you quoted constitutes a description of the organization of the ministry. It happened occasionally that the Minister was absent and in that case reports concerning the work of Section III were made to Under--Secretary Klemm, but as the Minister wanted to listen to reports from Section IV himself, it only happened very rarely, reports were made to his deputy. As concerns actual examples of that type I cannot remember them because such a long time has passed since those days.
Q. Do you mean to say you can't remember at all that you ever made reports to Klemm?
A. No, that is not what I meant to say. I do remember every now and then making reports to Under--Secretary Klemm when he deputized for the Minister.
Q Can you say roughly how many times you reported to Klemm?
A. No, I cannot give any figures.
Q. Would you say you reported to him more than four or five times in the year 1944?
A. It only happened very rarely.
Q. You further say that the decision if an offense against undermining of military morals or against the malicious acts law occurred, was not made by the minister or in some cases by the under-secretary, but that these were referred to the Oberreichsanwalt with the People's Court, and you say they were passed on to him for examination. Would you please tell the tribunal what you meant to say by that?
A. What I meant to say was that the final decision as to whether in the view of the Prosecution an offense had been committed against the undermining law or malicious acts law, was made by the Reich Prosecution. We passed on these cases to them, above all by way of making a suggestion to the Reich Prosecution, and naturally we stressed those points of view which in our opinion spoke either for one argument or the other, and we expected that our arguments would be taken into consideration by the Reich Prosecution.
Q. Mr. Franke, in your affidavit, you then gave an account of the second method, you say that in. your section at the ministry a case was reported straight away as an offense against the undermining of military morale and you say in such cases it had not been necessary to ask the Minister to make a decision as to whether the case was to be passed on to the Oberreichtsanwalt for his examination for him to decide whether it was a malicious act offense or an undermining offense. You say that in such cases an informative report was made.
A. Yes, an Unterrichtungs vortrag, informative report.
Q. May I point out that in my copy it says, Unterrichts vortrag, informative.
A. In my copy it says, unterrichtungs vortrag, informative. I believe the best way to render that in English is information.
Q. That is to say information was given. Wasn't in that case a decision made by the Minister?
A. In that case a decision was not required unless we had doubts about the case.
Q. If this statement about the informative report you speak I think in general about the manner in which the reports were made to the minister. You have the affidavit in front of you. May I ask you whether my assumption is correct?
A. Your assumption is correct and the paragraph following after figure II was intended to give a general account of the manner in which the reports from my section were made to the Minister. This passage constitutes a reply to the question which the Interrogator put to me.
Q. You mention the sequence in which the reports were made by the various individuals who were concerned, with the matter, and I quote: "Under secretary Klemm always took a very lively part in those discussions and according to my observation when the vote was taken, importance was attached to his opinion, also in cases of undermining military morale." And now you draw the conclusion "so that he did play a part in the decisions." Now, I ask you, did. Klemm, as under-secretary, compared, with the other persons whom you mentioned, have more importance when it came to casting a vote?
A. No, he did have neither that nor the contrary. Everybody was given an opportunity to voice his opinion. As to how much importance was attached, to anybody's suggestion that depended on what that person said, not who said it. It was quite possible that a suggestion which was made in the course of our discussions by auxiliary workers, were decisive for decisions, that is not only true in cases of under-mining but that is true in a general way.
Q In the next paragraph of your affidavit you make statements about extraordinary objections and you describe the discussions that were held on such extraordinary objections. You say that the Undersecretary had to co-sign, and now I ask you, could you state some concrete case to the Tribunal where that was actually done?
A The interrogator asked me to name such individual or concrete cases, and I told him, in accordance with the truth, that I could no longer recollect any such concrete cases. At the time of my interrogation I could not remember any individual case of an extraordinary objection and I cannot recollect any such case now.
Q Dr. Franke, would you please turn to the next page of your affidavit? There, concerning your section, you say that the case then had to be returned to you if a decision had to be made about the clemency question, and there again you mention the various persons who had to cast their vote. Now I want to ask you the same question: Whenever Klemm was present, did the Minister attach any particular importance to his opinion?
A In connection with this question, one must bear in mind that the so-called death cases had already been decided, a vote had been obtained about them in advance, and Undersecretary Klemm was never asked to give his opinion in advance on such cases. That means that when the case was discussed, he knew little about such a case and was dependent on what he heard in the course of the discussion. That was more true of him than of the other persons who attended the discussions, who had given their opinions in advance and who had closely examined the case. As for attaching particular importance to the opinion of the Under-Secretary, that did not exist.
For the rest, I should like to point out, in addition, that it not infrequently happened that Under-Secretary Klemm did not attend the discussions on death cases, which always came at the end of the day, because he had to attend to his other duties.
Q Dr. Franke, do you remember - and as this concerns your section I think you ought to remember - whether, in cases of undermining, Klemm ever made a decision in the absence of the Minister?
AAre you referring to death cases?
Q I am referring to death cases in connection with the clemency question.
A I cannot remember any concrete cases?
Q You cannot remember any concrete cases?
A I cannot exclude the possibility, and I am inclined to assume that occasionally, as a deputy for the Minister, in the absence of the Minister, Klemm must have decided such cases.
Q Mr. Franke, in that case I am surprised about a conclusion which you have drawn in your affidavit, and I should like to put it to you. I quote:
"There was no basic difference in practice between Thierack's and Klemm's methods in cases of undermining."
How do you want me to understand that, if you now say that Klemm only made decisions quite infrequently and that no particular importance was attached to his opinion?
A If you wish to understand that, you must pay attention to the word "basically". And clemency practice - well, perhaps the word "practice" isn't quite correct, perhaps it would have been better to say, "in the question of decisions on clemency cases and in connection with the principles in such matters." I explain in the following paragraph what I wish you to understand by the use of the word "principles", and those subsequent paragraphs must be read in connection with the paragraph which you have just put to me.
Q As to the principle concerning decisions in clemency matters, had that principle already been established by Thierack and his assistants at the time when Klemm joined the Ministry in '44?
A I don't think so, because the principles were developed in the course of dealing with cases.
Naturally, new problems arose such as for example, the question of excluding the public or otherwise, and opinions had to be expressed on that question; naturally, that could only be done in the course of dealing with a case. It was a principle that undermining cases differed from malicious acts cases insofar as the former had the character of mutiny.
Q Dr. Franke, I now ask you, what was the attitude of the Referents, the assistants, the department heads, concerning this principle of which you have just spoken? Did they differ in their opinions? That is, did they differ in their opinions from Klemm and Thierack?
MR. LA FOLLETTE: Just a minute.
I object, Your Honor, for the reason that the opinion of these other people can have no relevance to the probative value either to the affidavit that this affiant has made or tending to prove or disprove any fundamental issue in this case.
DR. SCHILF: May it please the Court, in order to make a comparison, it is necessary to mention the opinion of the other people concerned.
THE PRESIDENT: We haven't the exact text of the affidavit before us. We will permit a very brief statement as to the attitude of the others, but frankly, we don't see what the relevancy of it is, they are not here for trial. And it must be brief, or it will have to be excluded.
The question simply was whether these other Referents, and so on, differed from Klemm and Thierack in their attitude. Can you answer it in one sentence?
THE WITNESS: Well, basically there was no difference. Our view of the duty which the situation of our Fatherland imposed on us at the time was basically the same.
BY DR. SCHILF:
Q At the end of this paragraph you say: "Within this framework, as far as possible, consideration was paid to the individual circumstances of the person concerned."
I assume that when you said that you were thinking of a more lenient judgment of the case concerned, and I am assuming that because you say "as far as possible." Is my opinion correct?
A Yes, your opinion is correct. One must bear in mind that we were constantly aware of the fact that the punishment which the law imposed for the undermining of military morale was very severe and that therefore it was necessary to search with great care for mitigating circumstances. Concerning a decision as to whether clemency was to be applied or whether the sentence was to be executed, I believe that in that decision we somewhat approximated the average of other cases.
Q Can you tell the Tribunal what the average was of the cases where mitigating circumstances were granted, in comparison with the death sentences? What was the average? I am referring to the time when you were in the section.
THE PRESIDENT: You are speaking of clemency pleas?
DR. SCHILF: Yes.
THE WITNESS: Yes, I am referring to clemency matters. I believe that that average was something like 10 percent, but I cannot give you the exact figure.
THE PRESIDENT: You mean 10 percent were not executed?
THE WITNESS: I mean approximately 10 percent; in 10 percent of the cases clemency was granted.
THE PRESIDENT: Yes.
BY DR. SCHILF:
Q And in cases of undermining military morale, was that average adhered to?
A Possibly it was exceeded.
Q Oh, I see, possibly it was exceeded.
Mr. Franke, I have now asked you all my objective questions, questions referring to fact and questions with which you have dealt in your affidavit.
However, at the end of your affidavit you state impressions, which obviously are personal impressions, and they refer to the relationship between Klemm and Thierack. I would like to ask you a few questions in connection with that statement of yours.
Would you please turn to the next page?
A I have already done so.
Q There you say, "As far as I know, Klemm and Thierack were close friends." On what facts do you base that knowledge?
The facts on which I base my knowledge are mentioned in the following sentence: They both lived in Lichterfelde; they went to work together and they returned from work together in the evening. We frequently noticed that they had discussed cases outside of office hours, in advance. Finally, when we put through an official telephone call to the apartment of the Minister, quite frequently it was Under-Secretary Klemm who answered the phone. I did not have sufficient personal contact with the two men to be able to state any further facts, but I should like to emphasize that that paragraph, as well as my other statements, constitute replies to questions which were put to me. I cannot state any further facts beyond those which are mentioned in my affidavit, and they represent the impressions which I had when I was with Thierack and Klemm.
Q But you say here "close friends".
THE PRESIDENT: I think the witness has very sufficiently explained his opinion and the reasons for it. There is not a black line between friendship and close friendship, and I don't think he can go any further with the matter. It is a matter of opinion.