I have, therefore, directed this case also to the Reich Chief Prosecutor at the People's Court.
"3. Criminal case against Jooss for aiding and abetting the enemy-Judgment of the 1st Penal Senate of 14 April 1944 (President of the Senate Cuhorst).
"The foul defeatist statements made to the French civilian worker were dangerous to such a degree that even the mentally deficient defendant must have known about the consequences, and they show a frightening measure of lack of national dignity. The sentence passed of two years' penal servitude must be in these circumstances described as inadequate.
"4. Criminal case against Kornmayer. Sentence of the 1st Penal Senate of 24 April 1944 -- President of the Senate Cuhorst.
"The reasons aggravating the punishment which were appropriately stated in the sentence, should have resulted in sentencing the defendant, an old Marxist, to a considerably higher sentence than three years' penal servitude.
"5. Case against Friebel -- Sentence of the 1st Penal Senate of 4 April 1944 (President of the Senate Cuhorst).
"The defendant spoke in an especially critical period, in favor of a capitulation after the Italina example. I cannot accept the sentence of one year's prison term as a sufficient punishment.
"6. Criminal case against Radspieler -- Sentence of the 2nd senate cf 9 March 1944 (President of the Senate Cuhorst).
"The sentence passed of one year's prison term is not in proportion with the particularly dangerous remarks made, even taking into account the mitigating reasons of the personality of the defendant.
"7. Criminal case against Brechtel -- Sentence passed by the 1st Penal Senate on 24 February 1944 (President of the Senate Cuhorst).
"There are considerable doubts about the negation of the inner facts of the case, the defeatism, in view of the political past of the defendant and the undisputable meaning of his remarks. In any case, the sentence of one year's prison term cannot be regarded as sufficient in the case of this old Marxist who saw a new light dawn after the fall of the Duce and who openly expressed his hostility towards the State.
"8. Criminal case against Meier, sentence of the 1st Penal Senate of 26 April 1944 (President of the Senate Cuhorst).
"In this case also the especially dangerous remarks of the defendant made to the wife of a soldier and to a soldier, have been punished with a sentence of one year's prison, which sentence is in no way satisfactory. I intend, also, in the cases No. 3 to 8 to submit the files to the Reich Chief Prosecutor at the People's Court for examination of the question whether the extraordinary appeal should be applied against the sentences passed.
Skipping to the last paragraph of this letter, on page 93:
"At the meeting at Kochem I requested the President of the Senate to explain, in what manner in the fifth war year cases of defeatism should be tried. I believe that I may now expect that the District Court of Appeal, Stuttgart will also pass judgments accordingly. It is indispensable that you, President of the Court of Appeals and you, General Attorney, will in future direct your special attention to these criminal cases. I further request you, Attorney General, to report to me until further notice, when submitting indictments for defeatism, what sentence you intend to demand in the main trial so that I may point out possible objections with regard to the measure of punishment.
"As deputy (signed) "Klemm."
If the Court please, it is the prosecution's intention to introduce or offer the documents just read at this time. I am not clear whether or not the defense cares to make an objection.
DR. SCHILF: (For Defendant Klemm): May it please the Tribunal, I have to object to the introduction of this document. The photostatic copy of the document which has just been handed to me shows that it is only a copy. The document begins with the word "copy", and then there follows the text which the prosecutor has just read in part.
The signature also shows only a typewritten signature; that is, it is not handwritten. So it is not clear whether this document represents a literal copy of the original. Furthermore, it has not been made clear whether the original of which we have only the copy here was received in Stuttgart, or whether it is only a draft. So that this copy perhaps was put in the files of the Justice Ministry. I think that my objection is considerable because nothing but a typewritten copy of a document has been submitted, and there is neither a handwritten signature nor a certification which would give evidence that this document has really been written and sent out.
MR. WOOLEYHAN: May the Court please, the prosecution submits that all of the defense counsel's objections to this document are sufficiently answered by pointing out the fact that although this document is in truth labeled copy, on the last page, under Klemm's signature we find the words "certified; Grundmann, First Judicial Secretary".
DR. SCHILF: To this last remark of the prosecutor I would like to say, these words, "certified: Grundmann, First Secretary of the Justice Department", they belong to the copy, they are part of the copy. The First Secretary Grundmann could not certify this copy. Rather, it is as follows: This remark was on the original. If this copy which I have here in front of me could have been certified by Grundmann, his handwritten signature would have to appear on this document.
That this is not the case results from the fact that the words do not say only "Certified, colon, Grundmann" but here in this copy they say, "Certified, signed Grundmann." This makes it quite evident that the document from the first to the last letter is an entirely uncertified document, a simple copy which could hardly be considered a document.
MR. WOOLEYHAN: Your Honors, the prosecution submits the document is certified for our purposes.
THE PRESIDENT: It would seem as though this is a similar matter to one of the former rulings of the Tribunal. I take it that this is a captured document, and it is an office copy and therefore was offered as the best evidence of the original secondary evidence, and it is covered by the Guenther Nebelung affidavit and seems to be identical with a problem we have had heretofore during this trial. Therefore the same ruling should be given.
DR. SCHILF: Mr. President, I am not quite familiar with the signatures in the other case about which you already made a ruling. The case under discussion now, however, cannot be interpreted in any other way. It is unequivocal because on the document there is not the least evidence as to whether this copy has been made by an authorized office or not. There is nothing but a notation of the document center according to which this document has been registered. I personally do not doubt that it has been captured; that it is a captured document but from this fact we cannot conclude that it is a correct copy that it was written at all, and that the person to whom it was addressed received it.
All these conditions, if we consider them altogether, I think this case seems to me that even if we assume that it is a captured document, formal probative value cannot be assigned to it.
THE PRESIDENT: I think the Tribunal understands the matter, and the Tribunal feels that it is similar to a former ruling and is here bound by the ruling. It will therefore stand.
JUDGE BRAND: Mr. Prosecutor, I am interested to know your position about this. The copy that was captured was captured in Berlin, was it, or where?
MR. WOOLEYHAN: This document was unearthed in Berlin as part -- I can give you the exact source if you will bear with me?
JUDGE BRAND: My point merely would be this; if the original was written and sent it would not be captured at Berlin. The only thing that could be there would be the office copy. Is that your position?
MR. WOOLEYHAN: The office copy would be the only copy that could be found in Berlin. Going on the assumption that this letter was in fact sent in the original it could never be found in Berlin, but in Stuttgart.
JUDGE BRAND: Then your point is that the fact that an office copy was found in Berlin -
MR. WOOLEYHAN: The place of origin.
JUDGE BRAND: -- makes prima facie case for the delivery of the original.
MR. WOOLEYHAN: Yes. The prosecution offers as Exhibit Number 178, Document NG-676.
THE PRESIDENT: It will be received in evidence.
MR. WOOLEYHAN: The next document is NG-672, on page 95 of the English book. It is a sworn affidavit reading as follows:
"I, Dr. Josef Grueb, Judge at the Court of Appeal, Nurnberg, Gibitzenhofstrasse 106, hereby declare under oath:
"I was born on 18 May 1902 in Gerolzhofen, Unterfranken.
I passed my State Juridical Examination in Wuerzburg in 1928. From 1929 until 1936 I was active as 'Assessor', second Public Prosecutor, Magistrate and First Public Prosecutor in Bamberg, Kronach, Fuerth and Nuremberg. On 1 January 1937 I was appointed First Public Prosecutor at the Court of Appeal in Nuremberg."
JUDGE BRAND: That is '42, isn't it?
MR. WOOLEYHAN: '37, your Honor. If I may check the original a moment?
JUDGE BRAND: I think that's my mistake.
MR. WOOLEYHAN: It's 1937, your Honor.
"On 1 September 1942 I was promoted Judge at the Court of Appeal, but remained active in the Prosecution's office there. I entered the NSDAP on 1 May 1937.
"In addition to numerous tasks pertaining to the Administration of Justice, I dealt with general criminal cases in sofar as they fell under the jurisdiction of the Special Court. Thera were no so-called political cases among then, such as criminal cases against priests, against members of religious orders or against Jews. The General Public Prosecutor Dr. Emil Bems, and in his absence, his representative, Senior Public Prosecutor Dr. George Engert, were responsible, for all essential instructions or reports. All important cases were discussed with the General Public Prosecutor; instructions and reports were made out according to the letter's direction. The drafting of the texts was left to the experts."
Skipping to page 2 of this affidavit, the first complete paragraph.
"I hold Presidents Rothaug and Oeschey responsible for the bad reputation of the Special Court in Nuremberg and its extraordinarily severe judgments. The method by which both Presidents conducted the trials raised the strongest objections. The brutality of both presidents, their cynicism and their prejudices were brought to light in the most disagreeable manner. Both had used the courtroom for propaganda of National-Socialist conceptions, contrary to the dignity and the objectivity of a Tribunal. I believe Rothaug's conspicuous political fanaticism and, possibly, his ambition which made him strive for a successful career at the expense of the defendants, were the reasons for his severity in pronouncing sentences. The severe war-time laws helped him much in his efforts. He often made it clear, during a trial, that the defendant had lost the right to live. I felt that this was a very serious offense against the objectivity and reserve that were to be expected from the judges. He consistently ignored prosecutors, defense counsels and experts. He obviously considered the defense counsel as a 'necessary evil'. The only rather inglorious exception among the medical experts, was the former medical official of the District Court, Schuhmacher. When examining the defendants from a psychiatric point of view, he used to take a position against the defendants with exceptional violence, and in doing so, he rendered the most valuable services to a man like Rothaug. Rothaug gladly adopted the idea that even a psychopathic condition of the defendants would not constitute extenuating circumstances. I always had the impression that he was possessed by a demon that threatened anyone within his circle.
The most prominent fact characterizing Oeschey was the brutality with which he conducted trials, never fearing to insult the defendant during sessions in the most vulgar manner. He seemed to have followed his predecessor Rothaug in the handling of defendants without human compassion. Every impartial person in the audience had the impression that when Oeschey conducted a trial, the defendants as well as the defense counsel were limited in the most inadmissible way in the protection of their guaranteed rights.
I consider it possible or probable that under such circumstances, statements were made in some judgments which never would have been made if the trial had been conducted objectively; this might also have caused the Public Prosecutor or the Defense Counsel to suggest a nummity plea in some case or other. Whether this happened in every case in which it was necessary and for what reasons a petition for nullification was omitted, I do not know. It was obvious that the Ministry of Justice only admitted a petition for nullification when it was unfavorable to the defendant. Cases in which the Ministry ordered a nullity plea unfavorable to the defendant, were, at any rate, far more numerous than cases where the petition for nullification was demanded for the benefit of the condemned man. I do not recall a single case in which Berlin had ordered a nullity plea in favor of a condemned man of its own initiative without any suggestion from lower officials, although a nullity plea could be demanded either in favor of or against the defendant. It was mainly a means employed by the State to cancel sentences which seemed inadequate in the light of the political conception of these times.
"This statement is the whole truth and was made without coercion. I have read it, signed and declared it under oath.
"Nuremberg, 7 January 1947 (Signed) Dr. Josef GRUEB" Prosecution offers this NG-672 as Exhibit 179.
THE PRESIDENT: It will be received in evidence.
MR. WOOLEYHAN: The last document in Document Book 3-E is NG-337. Due to the familiar difficulties of assembling these documents it is not in the proper order. However, by the method of the presentation, in skipping around from page to page, I think it will be clear. At the outset it might be said that NG-337 is not any one single document but a collection of documents bearing the same number. There are two verdicts included in this document, an indictment, a number of connect ing letters and one telegram, and they were all gathered from the same file and presented as found.
This document really begins on Page 114 which is the verdict of the District Court, Newmarkt, which reads as follows:
"In the Name of the German People!
V e r d i c t District Court Neumarkt pronounces in the case against LOPATA, Jan, Polish farmhand in Bodenhof at present detained for assault, in its public session of 28 April 1942 in which took part:"
There is a list of judges whose names we won't read.
"On the basis of the Trial:
LOPATA Jan, born 24 June 1916 in Kajscowka, District Myslenice, parents: Michale and Anna Lopata, single, Polish farmhand, at present in detention is sentenced to an imprisonment of 2 years in a prison camp for the crime of assault."
Skipping to the last paragraph, of the verdict which is on the next page, 115 in the English book.
"The character of the defendant as a whole, as explained at the trial, especially the fact that the defendant in addition to the proven crime, which was already a serious crime in view of the manner and the stubbornness, with which it was carried out, and the fact that he committed another offense by his brutal conduct towards his employer require that the death sentence be carried out.
Signed, Neumarkt, 26 Oct. 1942."
May it please the Court, there is some confusion here, which I had not seen in going over this document. On the first page of this verdict, on Page 114, the defendant Lopata is sentenced to two years in a prison camp. How that squares with the statement on the following page, that the death sentence must be carried out, I am not prepared to state.
However, in reading the rest of the documents within 337 in their chronological order, perhaps it will clear up, if that will be acceptable.
DR. KOESSL: In the English, the last there seems to be a mistake, some mix-up. In the German copy the paragraph reads as follows: "For the ordinary had bad character of the defendant the following testifies that he could not make a confession, that he would not make a confession but rather denied and this denial was continued in spite of the testimony by the witness who was under oath, Schwenzer. Therefore it seemed to be suitable to condemn the defendant by use of Nos. 3 and 4 of the Polish Criminal Code, of Criminal Procedure, of the 4th of December, 1941, Reichsgesetzblatt I, Page 759, and to condemn him to the penalty of three years in a prison camp - two years in a prison camp, for leaving his place of detention without permission the money penalty of 35 Reichsmarks, which was usual, and in default of payment an additional week in prison camp was regarded as a sufficient punishment."
MR. WOOLEYHAN: The Prosecution wishes to thank the defense counsel. That seems to make it very clear. However, what the defense counsel just obligingly read was the remainder of Page 114 which I had omitted reading. That is all O.K.
THE PRESIDENT: Does that explain it?
MR. WOOLEYHAN: That still does not explain this bastard page on page which seeminly has come from nowhere. As I said, I'll attempt to clear up the confusion by continuing to read the document.
THE PRESIDENT: Do I understand that you are reading more of it with the hope that the rest of it will straighten this out?
MR. WOOLEYHAN: Yes, Your Honor, that was my understanding. The document really does fit together in a proper manner with proper reading, except that I am unprepared to explain why, after a clear expression of the Court sentence on Page 114, the next page should state something entirely different about the carrying out of a death sentence.
THE PRESIDENT: It would seem more regular to make your investigations out of Court and then to bring it to our attention.
MR. WOOLEYHAN: We'll withdraw the document, Your Honor, and present it at a later time when we can straighten this out.
Before we leave Book 3-E, there is a document, NG-633, which was distributed separately and properly belongs at the end of book 3-E.
May I inquire if Defense Counsel have copies of 633?
This document is an affidavit reading as follows:
"I, Adolf Paulus, former Senior Public Prosecutor in Nurnberg, at present resident in Bayreuth, hereby declare on oath:
"I was born on 15 April 1904 at Landshut. In 1929 I passed the government examination and was appointed Second Public Prosecutor in Landau-Pfalz on 1 January 1931. In September 1932 I was transferred to Aschaffenburg as Senior Judge of the District Court, councillor of local court, on 1 August 1935 as Senior Public Prosecutor to Amberg, and in March or May 1940 as Senior Public Prosecutor at Nurnberg. On 1 December 1942 I was assigned to the office of the Public Prosecutor at the Special Court in Nurnberg. I was attached to this until I was drafted into the Wehrmacht on 5 February 1945. I was a Party member from 1 May 1933 until the end of the war."
Skipping to the next paragraph:
"In the course of 1942, the Chief Public Prosecutor Dr. Schroeder repeatedly approached me in order to win me as a technical adviser for the office of the Public Prosecutor with the Special Court.
I have always urge on Chief Public Prosecutor Dr. Schroeder to desist from it, and I did so myself before my appointment on 1 December 1942. White Dr. Schroeder in form times acceded to my requests, he told me on 1 December 1942 that in any case he had to appoint me as technical adviser to the office of the Public Prosecutor, as there was no longer any other Public Prosecutor available. The reason for which I always refused to work in the office of the Public Prosecutor was due to the personality as well as the method of conducting the trials of the former director of the district court Rothaug. I did not know of these things from my own experience at that time, but from description made by some of my colleagues. "Today I am in a position to give the folio positive description of Rothaug: He is a man of outstanding intelligence. He has a talent of communicating his opinion to others suggestively. As far as he is concerned, only his opinion is the correct one. He does not allow other people's opinions. The main feature of his character is a complete lack of self control and dependence on his momentary moods. He once explained to me his habit of making political, ideological or philosophical speeches during the trials by saying that it was only possible in this manner to make the audience comprehend the verdict. He also demanded that the Public Prosecutor expound such viewpoints in his speech.
"As to the director of the district court Oeschey, I always had the impression that he strove to imitate the methods of Dr. Rothaug. From accounts of a colleague -- as far as I remember it was the Senior Public Prosecutor Dr. Herold -- I know that Oeschey, as a Senior Judge of the district court did not as yet have the character he showed later on as President of the Special Court. Oeschey was, moreover, thoroughly susceptible to other people's opinions, at least to a much higher degree than Dr. Rothaug.
"With regard to the Lopata case, in that trial I was merely deputy prosecutor. I admit that the death penalty pronounced in this case was a severe punishment. As far as I remember, the death penalty was proposed by by the Public Prosecution because Dr. Rothaug told me that after the production of the evidence, the court would recognize the death penalty.
It remained for the Public Prosecutors to follow the instructions of the Reich Ministry of Justice and to propose the penalty in accordance with the verdict which was expected. The fact that the court applied Article 4 of the ordinance against parasites is due to the fact that the Reich Supreme Court had, in no uncertain manner, expressed in its decree that this ordinance should be applied. I can not deny, however, that the decree of the Reich Supreme Court did not compet the Special Court to pronounce the death sentence. The court, according to the decree mentioned, was free to pronounce a term of imprisonment. Rothaug was very severe towards foreigners and, in the case of Lopata, exceeded by far the 'sound sentiment of the people'."
Skipping to the end, we find: "Nurnberg, 15 January 1947, /signed/ Adolf Paulus, Senior Public Prosecutor."
The Prosecution offers this document as Exhibit Number 180.
THE PRESIDENT: The document will be received in evidence.
MR. KING: May we at this time turn to Document Book 3-G.
May I inquire if the Court and the Defense Counsel have copies of 3-G?
I believe Dr. Schilf indicated that he did not have his.
I wonder if I may inquire of the Tribunal, in view of the fact that some of the Defense Counsel do not have Document Book 3-G with them, whether we should proceed now or wait until they return from their offices?
THE PRESIDENT: I think they should be present when we proceed. I wonder how long it will take.
MR. KING: I think it is only a matter of a minute or so while they go up and get them.
THE PRESIDENT: We'll suspend for just a moment or two until they return.
(A recess was taken.)
THE MARSHAL: Persons in the courtroom will please find their scats.
MR. KING: As Exhibit 181, the prosecution will now introduce the Document NG-155, which is to be found beginning on Page 10 of the Document Book 3-G.
THE PRESIDENT: I take it by your numbering then, that you will disregard the number of NG-337 and treat it as withdrawn entirely?
MR. KING: I did not confer with Mr. Wooleyhan before he left the courtroom as to what his intentions in the matter are. I think that perhaps since he is not here that we had best follow his suggestion, Your Honor, and withdraw that.
A moment ago I said the Document NG-155 begins on Page 10; actually, we will begin reading from Page 11, the Case of August Bonness.
IN THE NAME OF THE GERMAN PEOPLE
In the case against the publisher August Bonness, of Potsdam, born on the 3 June 1890 in Dessau, at present in custody pending trial in this case oh the charge of undermining the fighting morale and of giving encouragement to the enemy, the first Section of the People's Court, in its principle session of 15 February 1944, the fallowing taking part, as judges:
"-- There follows a list of judges which we will omit readings "has ruled as follows:
In the year 1943, especially in August 1943, in front of members of the Potsdam Civilian Club and of an employee of his publishing firm, the Defendant made repeated attempts through defeatist talk at undermining the German will to resist. He did the whilst advocating among other things the abolition of the National-Socialist Government.
In this way he was serving the interests of the enemy at the same time.
The defendant therefore is sentenced to death.
He has lost his civic rights for ever.
His property is Confiscated."
We turn now to Page 12 in the English, and begin reading at the bottom, which appears to be the first full paragraph on the bottom of that page. "This Civilian Club was particularly exclusive up to World War I, only high ranking civil servants and officers being accepted without difficulty, while members of the independent professions were only admitted by way of exception.
This closed circle only became less exclusive after World liar I, when the Club was in need of money and therefore attached importance to member who were well-off. It was for this reason that the defendant who was wellto-do was not admitted until 1920. And the Potsdam Civilian Club, too, which at that time had 300 members, while in 1943 it had only 65, had always been patriotic until World War I. It was from this time on, it seems, that a change gradually came about at least in some of its members. These people still rested on the laurels which they had perhaps won under the impire and therefore thought themselves entitled to the privilege of special treatment. They lacked contact with the people as well as the fighting spirit. They had kept silent when their emperor Wilhelm II came to an inglorious end in the Netherlands and also when Judaism; Marxism; and later Communism began to raise their heads with increasing insolence and power. They had stood aloof disapprovingly when the National Socialist movement sprang up from the heart of the people and the least they did in these days to show sympathy was: on one occasion for the "Stahlhelm". In spite of this they were at first astonished; and then more and more irritated, when national socialist reconstruction went on without them and when people left them, quietly on one side still clinging to their yesterday, and did not give them the places of honor they expected. Of course they did not dare express their irritation loudly for the Nazis were not to be trifled with. Besides it was evident to everybody who was not a hopeless die hard that national socialism had led the German people with gigantic steps out of misery and humiliation to take up its position in the world again. They had to admit as well that the new German Wehrmacht in its battles in Poland, Norway, France, in the Balkans and in Russia was at least equal in efficiency to the old one and that it was even superior to it in rapidity of action and in its annihilating encircling battles. But when later set-backs occurred, as cannot be avoiked in any more lengthy war, set backs which in Russia were due to a period of exceptional cold such as had not been experienced for 100 years, and in the East and South to the base treachery of the House of Savoy and the Badoglio clique, the senile heads began to war and shake and bleat. "Why, if it had not...., if it were not...." And now these old gentlemen would crouch together over their morning and evening drinks at the Club table, their courage wavering more and more as their anxiety increased, waiting for every alarming rumor which somebody would bring into their isolated worlds In peace-times one can overlook such bleating at insignificant club-tables, when those drinking seek to let the air escape from their beer- and wineinflated bellies, exchanging their witless gossip exclusively among themselves.
Should such diehards be inaccessible to all reasoning, there is a good remedy in peact time: to put them into cold storage and ignore them until they die. The main thing is to win over progressive-minded youth, senil weaklings can be ignored and left to their absurdity.
But in war it is different, in particular in a war which is already in its fifth year, and which demands the greatest sacrifices from everybody on the front as well as at home. There are many whose knees shake and the most foolish gossip is sufficient to depress them entirely, especially if these responsible for the gossip belong to the highest circles of society. Besides this there is the danger that such old mischief-makers will not only spill their poison at their club-table, but that they will try out its effect on their relatives, employees and other acquaintances too.
Now ever if it has not been established that all these members who used to sit with the defendant round the Civilian Club-table, griped in the same mean, anti-national manner as he, they did nevertheless listen quietly, to his talk and mostly they gave no answers or only made feeble opposition; they warned him ail right, but not because of the object-treason of such talk, but rather, as they put it, because one might be caught by the Gestapo for such gossip. Those old gentlemen were, it appears, fully aware of the fact that the remarks represented a danger to the state as well as a crime, and they did not do what would have seemed perfectly natural to any real German to punch the odious bitcher's lousy trap or, if they had not the courage to do so, denounce him at least to the Gestapo to shut him up.
The defendant entered this circle in 1920."
We turn now to Page 15, under the heading: "The Facts."
"In the summer of 1943 at a meeting in the Civilian Club as well as in the presence of his employees, the defendant is said to have talked in a way calculated to undermine the morale, particularly in 4 respects as established in the main proceedings of the trial.
He said:
1. ) That the Fuehrer had provoked and hurt Churchill, Roosevelt and Stalin to such a degree, that it was impossible to bring them together at a conference table for peace negotiations.
2. ) That the National Socialist Government ought to be replaced by a group of patriotic Germans, particularly German officers, who would form a military dictatorship.
3. ) That when this group had concluded the peace negotiations, it should be replaced by a monarchy, that is, Prince Louis Ferdinand, second son of the former Kronprinz, should be the monarch.
4. ) That Mussolini bad resigned on purpose so that a separate peace should be concluded with the enemy powers through his successor.
"Whereas, during the preliminary proceedings, the defendant clearly admitted after repeated interrogation that he had spoken badly at several club meetings, as well as in front of his employees ROSENTHAL and STOLZENBERG, he denied everything during the main session in court. He tries to explain his former depositions, in spite of their exactitude even as to details, by the fact that during the interrogation he was altogether confused: When the defendant insinuated that it the said interrogation he was dealt with in a particularly harsh manner and when the presiding judge retorted that according to the information he had gathered from the Gestapo such a statement was a lie, and that the female recording clerk who had attended that interrogation was at hand to be heard as a witness the defendant no longer dared produce statements pointing at mis-treatment. The two witnesses BOETTGER and BROEER who both attended meeting at the club the latter being a member of the board of directors in the Civilian Club had made equally exact statements at the preliminary proceedings in respect of these 4 remarks of the defendant, and their statements all coincided with each other. During the main session they too pretended they were quite confused at the previous interrogations and withdraw their farmer depositions. Then vigorously remonstrated with, BOETTGER gradually lost himself more and more in such contradictions that soon he did not know where he was himself and sheed that obviously, advanced degree of selecosis in this old man of 71 made it impossible to admit him as a useful witness BROEER, when seriously remonstrated with, changed his attitude again and declared now that his deposition before the Police, to the effect that the defendant had made his remarks on various occasions, were correct.
In addition to this the witness colonel von STUEMER, an East African veteran of the greatest merit affirmed that the defendant had made the remark 2 and that remark 3 also might have been made, but that Fie no longer remembered it. The remark about MUSSOLIMI had been made in August, the others before that. And here one of the defendant's lies broke down, for he pretended that he had been travelling all the times from the middle of June 1943 onwards and had not been any more in the Civilian Club. In reality he was in Postdam during August 1943 for several weeks.
The witness ROSENTHAL, who was employed as a correspondent in the defendant's firm also declared that the defendant repeatedly expressed his anxiety as to an unfortunate end of the war and affirmed that he had said the Fuehrer could not meet his opponents any more at the conference--table on account of mutual provocation and he would therefore have to be replaced by a group of German patriots, in particular old officers.
The court could not have any doubt that these it remarks had been made on different nights, at the club meetings, and that remarks 1 and 2 had also been made in front of ROSENTHAL. The witness BROEER states that the defendant was warned repeatedly by himself and others that he should abstain from such mischief - making lost he be caught by the Gestapo.
Talk of the kind under 2) and. 3) can only make people wonder how an experienced man, and the head of a great publishing house, could deal out such childish nonsense. The idea of the same adversaries as in 1918, who then overthrew the Hohenzellerns and sponsored the public, now allowing the republic on the contrary to be replaced by a military dictatorship of all things and later by a now Hohenzellern monarchy, and the idea of STALIN sponsoring such a turn of events, is so absurd that only a morbid brain could possibly grasp it. But there is no question of the defendant's soundress of mind being impaired, for he is an extremely clever business man. His odious gossip originates merely in a greatly exaggerated c raving for attention and in his hatred of the NSDAP which rejected him and quite rightly for being a former high-grade freemason.
His entire past as related above shows the defendant to be a "Jack-cf-alltrades" who takes up everything and joining in whatever promises him a dazzling role in the public eye, - a man who tries his sails according to which way the wind blows strongest, who is now "deutschvoelkisch", now "deutschnational" then Jewish-liberal and who finally tries to creep into National Socialism.
But that this talk, childish as it may have been in itself, could have a highly danger us effect and fall on fertile ground is demonstrated by its repeated acceptance at the club-table.
The old gentlemen mostly remained silent, some of them would nod and others would even declare that from the theoretical point of view the matter might be discussed. The provocations were thus apt, at least in the case of these old gentlemen, to paralyze the spirit of resistance against the attacks of enemy powers, and the spirit of defense and self-preservation. If such remarks are to be qualified punishable as "undermining of the morale of the Armed Forces", they must have been made "in public". Beth the People's Court and the Supreme Military Court of the Reich agree in their conception that the intention of the gossiper or only his consciousness perhaps that he was addressing a larger, and not narrowly exclusive circle of persons simultaneously or consecutively is sufficient to establish such a case. As the proceedings, have shown quite clearly there was permanent fluctuation in the attendance at club gatherings. Besides this, each member was allowed to bring guests and furthermore the members, apart from the fact that they all belonged to the Club, were mostly strangers to each ether, so that there can be no talk of a firm, small and closely - intimate circle of friends, There is still the fact that besides his gossip at the Club-- table the defendant, made his odious remarks in front of his employee ROSENTHAL too, thus obviously showing that he was only too glad to seize the opportunity at hand to impress the man with his philosophy, which was certainly childish out which was dangerous too on account of the risk of its spreading.
In order to exonerate himself the defendant has now brought forward proofs that he always sponsored both the old and the new Wehrmacht as well as the technical Emergency Service or the Union of Service Troops or the S.A. He also claims that he always talked to party-leaders in a sense which showed positive acceptance of the state. The Court accepted this statement as true, since the picture of the defendant we have sketched above as a Jack-of-alltrade is only completed by these interrogations. The defendant was far to smart to make himself unpopular with Party Leaders or officers of the regular army by mischief-making.