A We did not work in the open propaganda direction at a aprtilar group pf people but we selected a number of individuals after we received information about these people, and it required a great deal of negotiations among the members of the group until the resolution was accepted to bring individuals into the inner circle and have him become active in the group. We therefore dod not base the requirement for working in this group on the fact wether the person was willing to do so, but on the qualifications of the individual for that type of work and assistance. Therefore one cannot say, one cannot mean propaganda in that connection; it would be better to say a selection of suitable individuals on the basis of information and personal knowledge of them.
Q But, witness your organization was strickly secret. therefore, outsiders could not even know about the existence of your organization.
A No.
Q But it would have been possible, for instance, in a semi-offficial way for them to know about it by distribution of pamphlets; did you do that?
A We did make these pamphets, but they were never distributed or in any way dealt with as you with pamphlets normally. That was even found out and confirmed by the secret State Police of their investigations. Again following an old practice od resistance work, we always stated that we are only the subordinate representatives of a superior organization and that we could identify ourselves as such by the position of writings where the principles of that organization had been laid down; at any moment we got in close contact with any one of the individuals whom we had selected, and finally decided to try and recruit that person as a collaborator we used at that moment, we used the pamphlets of which about thirty or fifty had been made in order to explain to the individual, to show the individual how the organization existed.
Q IN other words you approached people on the outside, you approached outsiders on your part after careful selection.
A I am surprised about this question, because there is no possibility to confirm that portion.
Q No, I only wanted to' ascertain whether it is true, that your group made these efforts to get outsiders into their organization.
A No, that is not true.
Q But in that manner that would be propaganda if one approached any individual, any intellectuals of the intelligentia.
A If you consider it propaganda if I inform my friends about my political opinions, the you are right, then it may have been propaganda, but I believe that in the common language of a freeer contry thatn Germany it would never had been considered propaganda.
Q Witness, you repeatedly used the term you followed the old practive of resistance work. May I ask you since when you were active in the resistance movement.
A From 1933 until 1936. I was in a group of the German resistance movement which was known quite well the name of the new start, the new beginning.
Q The experiences which you have gained and which you have utilized on the basis of the work with the resistance groups, did that come from the Russian time?
A If you knew the group, the new beginning, you would not have asked that question.
Q You have stated repeatedly your group, just as all other resistance movement groups had maintained the theory or rather stated its action was a collecting on in case of the collapse of Germany. Isn't it true that this cloaking comes from Russian sources?
A That is not so at all; that is out of the question.
Q Do you know the writing on the "Creation Horse" which was distributed on the part of the Russians?
A No, that is not known to me.
Q Witness, you have said before the arrest warrant was signed by chief Reich Prosecutor. Can you remember accurately who signed -
MR KING: If the Court please, I think there is a slight confusion on the part of the Defense Counsel. I don't believe the witness said that the arrest warrant was signed by the Reich Prosecutor. It seems to me the witness said that the indictment was signed by the Reich Minister.
A I wont to explain this. I have not said before that the arrest warrant was signed by the Chief Reich Prosecutor, but that the indictment was.
Q I see, Before what senate was the trial?
A Before the first Senate.
Q It is correct that the date was set by the first senate for the Main trial?
A I don't know about that.
Q You got the beginning indictment through the first senate, did you?
A I assumed it must have been like that.
Q Is it known to you that in all those cases where the First Senate had to decide the arrest warrant was generally sent out by the First Senate?
A I have no experience with the People's Court before that time/
Q Witness, before you were served an indictment , were you informed, were you thoroughly informed about the charges against you?
A On the basis of the interrogation at the Gestapo it was quite clear to me what they might charges me with. However, I was the opinion that there was a possibility for my defense, and also in dealing with the Gestapo I have explained that I did not consider it correct that a charge be made of preparation of treason, for treason, for the simple reason that our work never headed in a direction of a violent change of government, and of course the thorough knowledge of the indictment and the possibility of conferring with defense counsel in time was of greater importance; in connection with that possibility, information on our defense so that it could possibly be utilized for our defense.
Q. You did not have this possibility simply because until 14 December 1943 you had no possibility to get in contact with the outside world; didn't you say that?
A. Yes.
Q. Witness, do you still maintain that to be true if I put to you that in your affidavit which you have given before Mr. Dreier you -
MR. KINGS: If the Court please, I object to that question on the grounds that the affidavit referred to has not been admitted in evidence, and for that reason I object to any reference to it.
THE PRESIDENT: It is quite true that no affidavit has been introduced into evidence made by this witness, but if he has made at any time, either under oath, or otherwise any statement that is not consistent with the statements he made on the witness stand, that becomes proper subject matter for cross examination.
MR. KING: I ask that we may reserve the right to introduce this affidavit in evidence following the dismissal of this witness.
THE PRESIDENT: I suppose it would be better to show the contrary of what they may introduce on their part. We would have a right to have tho witness support himself.
MR. KING: I am aware of a ruling by this Court to the effect that an affidavit of a witness who has already appeared could not be introduced following his dismissal.
THE PRESIDENT: The Defense has possession of this affidavit, is that correct?
MR. KING: That is correct; it has been referred to, but not introduced.
THE PRESIDENT: If the Defense use this affidavit in any way, that makes it proper for re-direct examination.
MR. KING: And it opens the possibility to offering this is evidence at a later time if we so desire?
THE PRESIDENT: We'd better decide that when the time comes; at the moment I see no objection.
DR. GRUBE: May it please the Tribunal, the translation did not come through quite clearly. Am I permitted to use the affidavit?
THE PRESIDENT: I have already stated that if you have a copy of an affidavit that he has made, even though it has not been introduced in evidence, that it is your purpose to question the consistency between the statements of that affidavit and the statements he has made on the witness stand, that you are right; you may proceed.
BY DR. GRUBE:
Q. Witness, I repeat my question, therefore. Do you still maintain your position according to which you had no possibility before the 14th December to get in contact with the outside world, if I put to you the following sentence from your affidavit before Mr. Dreier, of October 1946?
I quote: "In the meantime between time of your arrest in September and the submission of the indictment, did you have any possibility at all to get in contact with the outside world. Answer: Yes, I could write to my parents, to my wifoe, and while at the Secret State Police I could receive visits." May I ask you now to clarify that contradiction.
A. While I was at the Secret State police, and since I did not knew how long the proceedings, that is the investigation would take, I state I had an opportunity to write letters to my parents and receive letters from them. I also at various times had the visit of my wife and I received mail from the Director of the Pharmacological Institute. That possibility, however, did not exist any more from the moment when I , a prisoner for investigation, was brought to the penitentiary at Brandenburg, and by that was transferred from the hands of the Secret State Police into the hands of the Justice Administration.
Q. When was that?
A. That was on the 15th of November , 1943
Q Witness, is it known to you that the penitentiary at Brandenburg where you were brought at that time, was also used as as the Gestapo jail because there was not enough room in Berlin?
A That is not known to me. And, that I was kept in the prison as a prisoner for investigation I gathered from the fact that there was a large sign in my cell during the entire period, a sign which the words UG, which means Untersuchungsgefangener, prisoner for investigation. Also the treatment I experienced did not change in any way from the day on which the sergeant gave me the red arrest warrant. When I demanded to know why I was refused to speak or to get in contact with my defense counsel or any lawyer or my parents; that request was rejected just as before. And, thus, I had to maintain what I said before to the fullest extent, that I believe by this explanation I have cleared up the misunderstanding existing -- concerning the statement in my affidavit.
Q Witness, you say now that during the period while you were in the hands of the Gestapo you had the opportunity to get in contact with the outside world?
A Correct, in that it would have been until the 15th of November, until the day I was brought to Brandenburg.
Q Not after?
A Not after that, no.
Q May I again put this passage to you. It reads in the affidavit and I quote: In the meantime between your arrest in September and the submission -- presentation of the indictment, did you have any opportunity to get in contact with the outside world?" And, your answer: "I could write to my parents, and my wife, and I could have visitors at the secret state police." Witness, when were you handed the indictment?
A On the evening of the 14th of December.
Q And, you maintain that only until the 15th of November you could receive visitors and remain in contact with the outside world?
A Correct.
Q But, isn't there a contradiction between the time of 15 November and 14 December?
A Yes, during that period from 15 November and 14 December, I was at the penitentiary in Brandenburg. As I said before during that period I had no possibility whatever on my part to get in contact with the outside world. The only thing I received was my arrest warrant, and a short time after the carbon copy of the letter in which the jurist Kunz asked my approval to be my defense counsel. I never before heard his name and I had no opportunity to sign that document because it was not again taken from me, and I did not give any signature at that time.
Q Witness, how can you explain the contradiction between the time period between - - from 15 November until 14 December. Here you write that until you received the indictment -
A (Interposing) There is no contradiction, the contradiction is given by the fact that the statement concerned the entire period from my arrest until I received the indictment, and, of course, within that period, this was also the period from 15 September to the 15th of November, so that this question was to be answered with, yes, because within that entire period from 15 September to 15 November I had the possibility, but the question would have been more specific as to whether it was possible in an equal manner over the entire period, only part of the entire period, then it would be possible to explain it more clearly and my answer therefore explains that by meaning there were visits at the Gestapo office, the special meaning of that fact, that there were letters and visitors at the Gestapo, that shows that it can only concern the time between the 15th of September and 15 November.
Q Witness, you have just mentioned the name of your defense counsel Kunz.
A Kunz was my selected defense counsel.
Q Who selected him?
A My parents.
Q When did Kunz get in touch with you for the first time?
AAs I have stated, I received a letter in Brandenburg from a lawyer by the name of Kunz, in which he informed me that he would be my selected counsel. That was the first time I heard of his existence.
Q Did you, yourself, make any pleas or applications while you were in Brandenburg?
A I tried several times to get in touch with a lawyer. Since I am not very well informed about legal questions that was the only way in order for me to undertake the thing. I tried but I had no possibility to succeed.
Q Did you make any application that witnesses be called on your part?
A No.
Q Why didn't you make an application of that kind?
AAny person who would have been a witness for me would have put himself into the gravest danger.
Q You did not call any witness then; that was not the fault of the court but because of you?
A Even if I wanted to call witnesses for the reasons that I have mentioned, that would not have been possible because until the opening of the trial I had no possibility to talk to any other person about the trial. Only when I entered the court room I had the chance to talk to my father for a very short time and that for such a short time. There was no possibility to make any preparations in the way of making any application to the tribunal.
Q Witness, you mean to say there was no possibility at all in Brandenburg to make any application to call witnesses, if you had any witnesses.
A I have made applications in various instances to be brought before the police inspector at the time I was in the prison in Brandenburg, and these applications were always rejected.
A May I ask you witness what reasons were given for the rejections?
A No reasons.
Q Witness, in your affidavit, you stated later and I quote: "All interrogations, statements, and facts, themselves are no proof the the preparation for prison because our work was designated for the proper time after the war. We considered it our duty to prepare ourselves for a period after the war." I refer again to the question which I have put to you before. In that affidavit you chose that expression: then you want to say beyond a doubt that in the trial you have not told the true facts?
A I want to state the following: I never considered that court, a court which would do justice and where I could find justice. However, I was of the opinion that my defense was obliged to try anything possible in favor of the defense, anything that was still possible according to the justice of that court. For that reason I have made statements of which I assumed or could assume that my defense counsel would use them in my favor and in favor of the other defendants. That the judgment -- any sentence passed by that tribunal was not legal in the usual sense, and of that I was convinced in advance, and I personally had no hope at all that I might leave the court room as a free man or considered innocent. Although it was quite clear to me that those who were truly guilty were not in the defendants dock but at the judges bench.
Q You admit, therefore, the fact that you did not present the facts as they really were?
A I only have to explain that the court had to judge on the basis of whether they got in the alleged indictment of whether that knowledge was correct, complete, or wrong.
Q Witness, may I ask you, did you make a statement before that court under oath?
A No, I was not put under oath.
Q As can be seen from your affidavit, you were a witness in other trials?
A Yes.
Q On the occasion of these latter trial, did you observe whether the defendants were put under oath?
A I was not present when the defendants were called for the first time. I was only brought in as a witness in the course of the proceedings.
Q Witness, in which a defendant in a German trial was put under oath -
A (Interposing) I have no practice, no experience of that kind. I cannot answer that question.
Q Witness, as you have already stated, your defense counsel Kunz, was a selected counsel, and in particular he had been selected by your parents. Is it known to you that the fact, that selected counsel were admitted or that counsel were appointed, that was the case, that was the duty of the appropriate senate?
A That was not known to me.
THE PRESIDENT: The time has arrived for our afternoon recess. However before adjourning for the recess I think I may give an answer to the Prosecution question.
The question was whether the affidavit which has been prepared but which has not been introduced can later be introduced because of some cross-examination under that affidavit. I think the answer is clear enough. If there are other portions of the affidavit which have not been brought out on cross-examination which will tend to corroborate the witness on the points where it is sought to show a contradiction, those portions of the affidavit which have not been entered on cross-examination may be introduced on redirect examination, but in no event after the witness has been excused.
Does that make it clear?
We will recess now.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. GRUBE: I ask for permission to continue the crossexamination.
THE PRESIDENT: You may proceed.
BY DR. GRUBE:
Q. Witness, I am returning again to your sojourn in Brandenburg. During the time when you were in Brandenburg, did you change your cell?
A. Yes.
Q. Several times, you stated before-
(Interposing)
MR. KING: Defense counsel refers to the period when the witness was in Brandenburg. I think it ought to be clear in his references whether he means before the time he was sentenced to death or after the time he was sentenced to death, because he was in Brandenburg both before and after.
BY DR. GRUGE:
Q. I am, of course, referring to the time before the trial.
A. At that time I changed the celloance.
Q. When did you change the cell?
A. I believe it was about the 6th or 7th of December.
Q. You said before that "U.G," was fastened on the cell. Were these initials "U.G." on the cell from the very beginning, or only from the moment when you had been issued the order of arrest?
A. The sign was at the door shortly after I moved into the cell, as far as I could determine when I saw it for the first time. It may have been on the evening of the first day when I returned from the free hour.
Q. On the first dayafter you were brought into the penitentiary?
A. No. I want to reproduct it exactly.
On the evening of the 15th of November we came to Brandenburg, and there we were first provisionally distributed among a number of cells, where we stayed for one night. On the following day we were brought into the cells which were to be our permanent cells. After we had moved into these cells, these cells had the Sign "U.G.", Untersuchungsgefangener, "Prisoner under Interrogation", put on the door. Later, on the 5th or the 7th of December, I changed from that cell to another. The reason was that I was given another task to preform. On the door of that cell too the sign "U.G.", "Prisoner under Interrogation", was put.
Q. Witness, do you know that for prisoners who are in detention pending trial, this designation is really only proper after the order of arrest has been issued?
A. It is my opinion that according to the existing German laws, which also existed at that time, nobody should be detained under arrest any longer without having an order of arrest against him; that is, nobody should be detained longer than 24 hours unless there is an order of arrest. Actually, from the very first day of my stay in the Brandenburg penitentiary until the 14th of December, I was under the same external conditions and was constantly in the hands of the same civil servants, or officials. To what extent, through the receipt of the order of arrest, my conditions or my attributes were changed by the designation in the files I could not find out and had no means of finding out.
Q. Is it correct, however, that this "U.G." sign was at your door already at the time when you were still under arrest or detained by the Gestapo?
A. Since the 15th of November I was in the Brandenburg penitentiary under arrest, and it was the same type of arrest under which all of the other inmates of the penitentiary were.
The treatment was exactly the same as the treatment given to those who had been convicted to a term in the penitentiary.
Q. I am now returning to the point which I had reached before. You told me before that your defense counsel was Dr. Kunz, the attorney at law. Did Dr. Kinz, or did you yourself, during the trial on the 15th of December, make an application for a postponement and give as a reason for it that the indictment was served to you only the evening before?
A. Neither Kunz nor I did that.
Q. Can you give me a sketch of the attitude of your defense counsel during the trial?
A. I stated before that at the beginning of the trial Kunz put the question as to whether the Court would be ready to ask me about my ancestors. Later, during the course of the trial, Kunz did not ask any more questions.
Q. You said before-
A. (Interposing) Bat he stated a further sentence during, the course of the trial, and that was his entire plea. In this sentence Kunz said that "The crimes which the defendant has committed and which he confesses are so serious that only the most serious penalty could be just."
Q. It is correct, however, that this defense counsel was selected by your parents?
A. Yes.
Q. The three other defendants had, as you said before, defense counsel appointed by the Court, official defense counsel who had been appointed by the Court?
A. Yes.
Q. Was the attitude, behavior, or manner of your defense counsel different from that of the other three defense counsel?
A. I believe that Kunz was the worst one of the defense counsel. He did not make any attempt whatsoever to defend me, as I have already told you. The other defense counsel at least succeeded in speaking more than one sentence in their plans. However, they also had only the intention of making the way easier for a clemency plea in some way or other, while none of them tried to give an interpretation favorable to the defendants as to the findings of the Court.
Q. Did the defense counsel appointed by the Court make any pleas during the Trial?
A. I cannot remember.
Q. Did the defense counsel appointed by the Court ask the witnesses any questions?
A. I cannot remember that either. I don't believe so.
Q. Witness, I am now again reading a sentence from your affidavit. You say in your affidavit:
"My defense counsel behaved considerably worse than the official defense counsel, those appointed by the Court. My defense counsel only spoke twice."
Q. What was this essential difference between the two group of defense counsel? Did it lie only in the fact that your defense counsel spoke only one sentence as his plea, while the others said something more?
A I can remember only that one or two of the other three official defense counsels made some more effort in his plea to get something out which was favorable for the defendant. It can also be said during the trial one of the other of the defense counsel made an objection once or asked the Court a question or asked the defendant a question. However, in order to give a really true picture of the course of the trial or to get a true picture you have to imagine that of the entire short period of the trial, the course of the trial, less than one-twentieth of the time was taken up by those things which the defense counsel brought forth.
Q Witness, did these three official counsel appointed by the Court, did they apply for postponement of the trial?
A No.
Q You just said some of the official defense counsel asked the witnesses some question. How did the associate judges of the Senate behave?
A In our trial the associate judges were absolutely inactive, as far as I can remember. In any case, in some way which was recognizable some way or another they did not enter into the trial. It was completely ruled by Freisler.
Q You, yourself, as you have admitted already, appeared as a witness in a trial of the Peoples Court.
A Yes.
Q How did the Associate Judges act in that case?
A Since as a witness I utilized every opportunity to defend the defendant, I had considerable difficulty each time with the Court and in the main I had arguments mainly with the associate judges and they put all kinds of questions to mo and tried to make me -- force me to make contradictory statements.
Q In your case Freisler was the presiding judge?
A Yes.
Q You said before in the main Freisler spoke. Did the defendants themselves have the possibility to speak during the trial?
A They could only answer questions and at the end of the trial they had the right to make a final plea.
Q How did Freisler act when the defendants had the opportunity to speak when they were questioned?
A If the question was answered in the direction in which Freisler desired he had no objection to make but every attempt to bring forth something in defense, which efforts were made by some of the defendants, he objected sharply and immediately interferred with the trial.
Q In what form did Freisler interfere? Did he do it in a quiet manner?
A The manner changed as his mood did. Sometimes it was cynical and sometimes excited. Sometimes it was calm.
Q During the other trial when you present as a witness was Freisler the Presiding Judge?
A No. Stier was the Presiding Judge.
Q How did Stier act as Presiding Judge?
A Stier was usually calmer than Freisler.
Q I am now coming to another point: witness, you said before the execution of the death sentence was postponed for six months at first. After those six months had elapsed the execution was ordered postponed again. Do you know that the defendant Lautz during the second postponement of the execution remarked to Prof. Dr. Wirth that he would make every effort with all of the means at his disposal that you will be pardoned because he regarded it as inhumane to torture a man for such a long time?
A I don't know that.
Q I now come to a final point; before you said that on the 20 July 1933 -- 20 April 1933, 33 political prisoners, so-called death candidates, were executed?
MR. KING: I wonder if there's a mistake in dates or a misinterpretation. Is it April 20, 1943 or is it April 20, 1945?
Q I asked if you had stated before that on the 20 April 1945, 33 political prisoners, so-called death candidates, were executed.
Witness, do you know that in the case of these 33 candidates for death they were all people whose death sentences had legal charged, they had been refused a pardon and the execution of the death sentence had already been ordered by the Reich Ministry of Justice?
A I can answer this question only that a large number of these 33 people had already for a relatively long time been in the Brandenburg penitentiary as candidates for death. About the progress of their clemency plea and about the legal force or the illegality of the order for execution I cannot say and give a judgment here. Also I do not know about these occurrences.
DR. GRUBE: I have no further questions.
DR. SCHILF: Dr. Schilf for the defendants Klemm and Dr. Mettgenberg. Witness, you described the aims which the European Union had. The decisive thing was, if I understood you correctly, that for the time after the war there should be an organization, -- there was an organization in existence which also had -- could have taken up connection with foreign countries again. Do you know the so-called Dreishauer Circle?
A No.
Q Do you know a Count Helmut von Moltke?
A No.
Q A resistance movement which after the publications of recent times had the same aims?
A I don't know about it.
Q You spoke about it that between your organization and groups of foreign workers who were working in Germany information was exchanged. I would like to ask you, professor, to say something about the nature of the information?
A The report concerned mainly information about the military and political situation in Germany. First, those foreign workers had very little opportunity to find out about the course of the war and events in the rest of the war; secondly, the German news were, of course, absolutely insufficient a source of information.
Q That would mean -- excuse me. Have you finished your answer?
A In addition, the foreign workers were interested in personal news and in new regarding information from their home countries and they were interested in forwarding their letters and such news referring to their home countries from here.
Q That would mean that news was mutually exchanged?
A No. Mainly we informed them about the general situation and also on the basis of such information which we received. We warned them if in certain camps the Gestapo was making searches and raids and the news which they themselves could give us, was subordinate to us and they went to resistance movements in their own home countries.
Q Did these groups of foreign workers who were probably in the main working in the defense and war industries, did they give you -- did they report to you personally but also to all of the members of the organization? Did they give you also news and information about their work and about things which they might have found out in defense industries -armament industries?
A The distribution and forwarding of such information was not the task of our organization. The dissemination of such information -- and I spoke only with the leading delegates -- negotiating only with them. In those negotiations such questions were not discussed at all.
Q The news thus would -- were given by you to the groups of foreign workers thus referred to the reports on the general situation and personal news?