MR. KING: One other point. The witness has testified that he was a German lawyer, and in fact, in the Ministry of Justice. It occurred to me that it might be proper to ask him that question as an expert on German law.
THE PRESIDENT: German law would not control anything as plainly ethical as that. That is, I am speaking for myself when I say that and not deciding the case at this time. But that document that you have just read can be interpreted by the Court without the aid of this witness.
BY MR. KING:
Q. Passing to another question, would you consider a trial fair if the accused were denied ever an appointed counsel?
A. No. The defendant must have been given the possibility of a regular defense, as it should be.
Q. Would you consider the continued detention of acquitted NN-prisoners as slave laborers forced to work in munitions industries in accordance with International Law?
DR. KUBOSCHOK: I object to these questions. They are all questions of opinion and judgment.
MR. KING: It is the opinion of the witness that we seek to elicit, Your Honor.
THE PRESIDENT: We permitted you to ask an opinion which had some basis in German law, but this goes beyond that, and we will sustain the objection.
Q. As a former member of the Reich Ministry of Justice before you assumed your position with the OKW, and as an wxpert in some fields of German law, would you consider the general principle that witnesses be denied the accused in accordance with German law?
A. I do not believe that the basis of this question is in accordance with the decree. The decree says that in Germany, witnesses can be examined only under certain circumstances; that examination of witnesses was forbidden altogether is not written in the decree.
Q. For the moment, let us not discuss the decree. I am talking about the practice in the matter, and would you answer the question quite apart from what may be stated in the decree. Would you consider it a fair trial if the accused in a trial before a German court were denied witnesses for any reason whatsoever?
A. If it would be forbidden altogether to the defendant to appeal to the testimony of a witness and in that way to prove his innocence, then that would be contrary to German law; for it belongs to a defense that the defendant must be granted the right to make his own objections to the indictment and to prove them through evidence.
Q. Witness, may I ask you if you saw the defendant Joel or talked with hem, after say, the middle of August 1943 until sometime after the war?
A. As far as I know, I saw Dr. Joel after he had become General Public Prosecutor in Hamm. I did not see him any more during the war. I believe that I only saw him again in Nurnberg.
Q. And from your earlier statement this morning, I take it that it is clear that you did not attent any trials under the defendant Joel's supervision as Chief Public Prosecutor in Hamm so far as nacht and nebel cases are concerned?
Is that correct?
A. That is correct.
Q. In connection with the question which was raised yesterday regarding the nacht and nebel program in the Netherlands, I have just one or two questions: Do you know a man by the name of Huelle?
A. Would you please repeat the name again?
Q. Perhaps my pronunciation is not the best. The name is Huelle: H-U-L-L-E.
A. Huelle? Yes.
Q. Was he a member of your staff?
A. Yes.
Q. What position did he occupy? What were is duites?
A. Dr. Huelle was Ministerialrat--Ministerial Councillor--in the OKW, and a member of Department I of my office.
Q. In connection with the Netherlands' nacht and nebel program, do you recall a letter which Huelle wrote in connection with that program which is dated the 23 of June 1943? I show you a German copy of that letter for the purpose of possibly refereshing your memory.
(Witness is given letter)
While you are consulting that letter, may I read a portion of it about which I later wish to ask you a question. This letter was written by Huelle to von Ammon in which he says: (I think you can find the place in the German copy before you).
"We are not confronted with the problem as to whether or not this practice should be replaced by the prescribed procedure or whether or not we should extend the procedure followed in the Netherlands' to other countries for the directive which is valid."
That is, to forego a trial in Germany.
DR. KUBOSCHOK: I object to this question. This complex of questions was not a subject of the direct examination and cannot be a subject of the redirect.
MR. KING: The question concerning the nacht and nebel program was most certainly raised in cross examination. Because it was raised in cross examination it is necessary to refer to it in redirect.
THE PRESIDENT: We overrule the objection.
BY MR. KING:
Q. Continuing reading from Huelle's letter:
"The practice of the courts in Germany, so far as I can see it, has let to it that the culprits are either executed or detained in a concentration camp until the of the war. Not only the guilty ones, after serving their court sentence, re taken into protective custody by the police, but also those who are innocent or not sufficiently suspected and who have had a glimpse of the procedure. Neither the one or the other way of treatment by the courts constitutes a deterrent of the inhabitants in the occupied territories because these procedures are conducted with a total exclusion of the public. Besides, their supervision ties up personnel on all levels of the administration of justice."
Now, there are other portions of the letter which I will not read. I only ask you, based on what I have read, this question: There is evidence in the letter that Hulle discussed the old problem with you before the letter was written. My question is this: Do you agree substantially with the statements which Huelle makes in this letter?
A. I just looked through the letter again. I considered how the letter came to be written and what motives we had. The signature is that of Dr. Huelle who also wrote the letter. However, it was done without any doubt in agreement with myself, so that I am responsible for this letter, as I was responsible for everything that was done in my department. I believe that the letter which I had not though of for a very long time any more came about to be written in the following way:
Yesterday, I tried to describe to the Tribunal that we had serious misgivings against the entire NN-decree, and that one of the main misgivings was in regard to the exclusion or the cutting-off of the defendants from the public. In the pre-discussions, before the decree was issued, the jurists who took part in these discussions finally came to the conclusion that since it was the special wish of the Fuehrer they could not change this any more; however, that perhaps there was something good contained in this provision also on the other hand. We said to ours lves that if the defendants were not sentenced in a public hearing, the entire point of view of the deterring nature of such a case by means of the sentence was eliminated of necessity. The necessity of the deterring influence, especially in the occupied territories, brought about very heavy penalties. If not the sentence was kept secret, the entire idea of a deterrent by means of a sentence was eliminated and thus the possibility was given in a secret trial to judge the cases more leniently than it would have been possible otherwise in the occupied territories. One of the participants in these discussions expressed this idea in the following words:
The cutting off of the public is, so to say, the price which we have to pay for the possibility of a more lenient sentence.
A. (Continued) We were also under the impression that during the entire time, first time, in this sphere of the general administration of justice, the cases were handled accordingly; it was especially the impression which the judges of the Wehrmacht gained, the judges of the armed forces in the occupied territories. If I still remember correctly, in several cases the practice followed by the general courts rather in the sphere of the general administration of justice became more severe. I cannot cite individual cases to prove this point any more, for I am speaking only from my memory without any documents. This letter was supposed to have the purpose to emphasize again that the main effect of the decree, also in accordance with Hitler's will, may in the conviction of the suspects, in the transfer; correction, in the transfer of the convicts, to Germany so that a considerable increase in the number of death sentences was not what was intended by the decree. Now it was difficult to express this because the criticism of the measures taken by Minister Thierack we could not undertake. The relationship between Minister Thierack and the Military administration of justice was in the period under discussion very tense. We were very much annoyed that Minister Thierack by way, via, Bormann, made the attempt to undermine the administration of justice by the Wehrmacht.
Q. Witness, I have no desire whatsoever to cut you short on any explanation that you feel necessary to this letter. I only remind you that the original question was: Do you agree with the substance of this letter?
A. Yes, for it had as its purpose to Thierack, who was supposed to get this letter, to remind him that the necessary deterring nature was achieved already by the transfer of the defendants to Germany, and that we did not desire to render more severe sentences in practice. I believe that particularly the experts of the Ministry of Justice pointed out this to us because as far as I know, within the Ministry of Justice, there was strong opposition against the severe measures taken by Thierack and the severe line followed by Thierack; and this letter was supposed to support those gentlemen in the Ministry of Justice who were for a more lenient judgment of these cases.
Therefore, I affirmed the contents of this letter, and I believe that I portrayed the context correctly. Of course, it is possible that the referenten, the department heads, had had a more exact knowledge and that my statements would have to be corrected, but on the whole I believe that what I have said, what I have stated is correct.
Q. Thank you. You have identified the letter which is marked at the top with the number NG-204; is that correct?
A. Two hundred and four.
Q. We will offer this letter in evidence as Exhibit 381, subject to the necessary time which will be required for processing.
DR. KUBOSCHOK (Attorney for Defendants Schlegelberger and von Ammon):
May it please the Court, I have an objection on principle to the submission and offering in evidence of documents during the examination of a witness, and the immediate introduction of the document as evidence. The Defense is deprived of the opportunity within the well known period of twenty-four hours to get information about the document.
MR. KING: I think that Dr. Kuboschok has misinterpreted the twenty-four hour rule. Certainly, as I understand it, it does not apply to documents which must be used to correct impressions developed on cross examination. If that were true, it would be impossible to submit any document on redirect to correct an erroneous impression developed during cross.
DR. BRIEGER (Attorney for Defendant Cuhorst) May it please the Court, above all I would like to object to such documents as are submitted in the redirect, and I agree with the statement made by my colleague.
Dr. Kuboschok.
MR. KING: May it please the Court, I hope it was clear to the Court that the exhibit cannot physically be offered at this time as an exhibit for the reason that it is not processed. I only wanted the witness to identify it so that when it is formally offered it will be clear that is the document to which he referred; I am asking the Court to assign an exhibit number at this time; it was only to further identify the document.
JUDGE BRAND: I would suggest that you mark the exhibit 381, for identification, and offer it later.
MR. KING: Right; it will be done. The Prosecution has no further questions of the witness Lehmann, and if there are no questions we ask that he be excused.
THE PRESIDENT: Inasmuch as there has been a question raised as to this being new matter not included in the original direct examination, we will lay the way open to Defense Counsel to further cross examine on the subject matter of this letter only. Do you Defense Counsel want to examine concerning this? If not, the witness will be excused.
MR. LaFOLLETTE: In order that we may establish some practices, we have sent this document to Colonel Nesbit, Secretary General, with the request that he note the Exhibit No. 381, for the purpose of identification.
DR. SCHILF (Attorney for Defendants Mettgenberg and Klemm) As far as the document is concerned, we might possible like to undertake a cross examination about it, but as long as we do not have the text of it, I'd like to say that we are technically not in a position to do so.
Mr. King only read parts from this letter; he only read excerpts, and we heard them only in translation, that is in the re-translation. In order to undertake a cross examination which would be of some avail, there are two prerequisites which are necessary; first, that we could read the entire letter, and that we would obtain an authentic German original text. Therefore, I would like to reserve the right to cross examine the witness again after we have received a copy of this letter, that is, the right to recall this witness for cross examination about this letter only.
MR. LaFOLLETTE: If your Honors please, we object to this proposal to wait until the document is processed and then call him back; that will be a procedure which I think will be very ineffective and very bad trial practice. In this case the witness happens to be in jail, but we may well bring a witness in here which would require us to keep him in town a week or ten days possibly depending upon the condition of the document.
THE PRESIDENT: We would like to inquire of Dr. Schilf as to whether he could proceed with the examination of this witness if they had a brief time to examine the document now. How much time do you think you would like to have, Dr. Schilf?
THE PRESIDENT: How much time would, you like to have?
DR. SCHILF: I would need ten minutes. It is a rather extensive document and if I may ask for permission to make the decision of the Defense known in ten minutes whether it is necessary to have a recross examination about this letter, I would appreciate it. If I may make the suggestion to have a recess of ten minutes now, then we would be in a position to do so. However, if the Court prefers that in the general morning recess, we discuss this question, examine this question, and then cross examine the witness after the usual morning recess, we will do that.
THE PRESIDENT: The latter suggestion is the better. Can the Prosecution hold this witness until after the usual morning recess?
MR. LAFOLLETTE: Your Honor, please, we can, but I would like to make an announcement now in regard to the Prosecution. We can follow this witness with another witness, however, it may well run over a half hour if cross examined. We have nothing else to follow him with. Also for that reason, and since we are getting to a point where the Prosecution hopes to rest within, I hope, a week, certainly at the end of ten days, I want to ask the Court after the next witness follows, without regard to what decision is made of this matter, to recess until Monday in order that we may attempt to get some further documents processed, and that we may organize our witnesses, and be able to proceed on Monday. At the close of the testimony of this witness, we will follow with another witness, but we have nothing until then.
THE PRESIDENT: It seems to be the better plan for the Tribunal to recess at this time for fifteen minutes.
(The Tribunal then took a recess).
THE PRESIDENT: You may proceed with the cross examination.
DR. KUBUSCHOK (For defendants von Ammon and Schlegelberger): May I make, first, a suggestion in connection with the question brought up previously. The defense, and the prosecution, in the course of this trial will certainly frequently, in the direct examination, cross examination, and re-direct, introduce new documents which are not known. The unique nature of this trial, the number of the documents which may be introduced -- and in particular, the extent, the size of the documents -- does not allow close examination of the documents unless the contents have been announced a little while beforehand. That difficulty appeared in the International trial too, at the beginning. The Tribunal then took those difficulties into account and made a ruling, according to which all documents which were to be introduced by either party on direct examination, the cross-examination, or the re-direct, should, not later than at the beginning of the day's session, be made available to the other party. If that is not done, a proper scrutiny of the documents would be impossible for the party to whom this document has come as a surprise. I would ask whether the proper moment -- this question could be considered -- whether a ruling on it could be made.
THE PRESIDENT: The Tribunal feels that sufficient time has been allowed to enable defense counsel to cross-examine the witness concerning this letter, and that will expedite the trial, if that happens. This will be without prejudice, of course, to the right of defense to bring this letter up in the course of the defense. So we think that no ill effects will occur to the defense by reason of that ruling.
We hope you can now proceed with such cross-examination as to this document as you care to make.
DR. SCHILF (Counsel for the defendant Dr. Mettgenberg): With the permission of the Tribunal, I will now continue the cross-examination on the letter of 23 June 1933.
MR. KING: May I ask the Court one question in this connection? This cross-examination is to be permitted on the narrow limits of this letter. The letter is addressed to Von Ammon, and for that reason I do not see the relevance of questions concerning Mettgenberg being asked at this time.
THE PRESIDENT: Prosecution counsel has first brought up the subject of this letter and has asked this witness questions, and so we will not limit the defense to ask questions concerning the sane letter.
RE-CROSS EXAMINATION BY DR. SCHILF:
Q. Witness, I assume that you still have the photostat of the letter before you?
A. Yes.
Q. On the first page, in the last paragraph but one --
A. Yes.
Q. I am going to quote that paragraph, as to how that practice was introduced:
"It could not be discovered how such practice had developed. The OKW was left in the dark as to the fact that the deportation of the accused was a matter for the Gestapo; the moment the culprits had been handed over they, however, disappeared from view."
That is the end of the quotation.
Witness, I wanted to ask you, you made that statement as to the focal point of the OKW and the Judiciary. Do you know whether, thereby, the General Administration of Justice, for its part, by transferring them to the Gestapo, had the possibility, concerning the offenders, to take over the judicial administration of those cases?
Is that quite clear, or is it not clear?
A. Yes, it was quite clean; I understood you. Yes, I have understood you.
The letter, so it seems to me, is difficult to understand. At the beginning it contains a description of the procedure such as was customary in the Netherlands. I would like to point out at this moment that the English translation, which I have just received, contains a translating mistake. At the end of the first paragraph it states, in the English text: "Our procedure, rather, has been as follows." The word "our" is wrong. It should say "the procedure" because it was not the procedure which was started by the Wehrmacht. It is characterized as the procedure in the Netherlands, against which misgivings are voiced later on in the letter. I should like to make that clear.
According to what I have read here, the Wehrmacht commander in the Netherlands, concerning some of the defendants, did transfer them to the Secret State Police, the Gestapo, and apparently with the intention that the police should keep those persons. That is how I understand it. And as that procedure departed from the decree, and we evidently only heard about it at that time, we pointed out that a regular procedure had been adopted.
Therefore, I cannot say whether the defendants who were handed over from the Netherlands to the police were later handed over to the General Judiciary. I do not know that. However, it seems to me that that was not done.
I do not know whether I have now cleared up the matter properly.
Q. Another supplementary question. Could you answer this, please?
You and your office did not hear about the development of the procedure described in the first paragraph, evidently, because the Gestapo immediately took hold of the defendants concerned and kept them. From that we can probably deduce that when the Gestapo got hold of the offenders they could only be transferred to the General Administration of Justice if the procedure, such as it was adopted in France, had also been introduced for the Netherlands. At the time of your letter - that is evident from the letter - that procedure had not yet been introduced in the Netherlands. The letter was the cause to discuss and consider as to whether the procedure as it was in force in France was to be introduced in the Netherlands as well.
The conclusion is justified that at the time that letter was witten the General Administration of Justice had nothing whatsoever to do, or could not be brought into any connection whatsoever, with cases from the Netherlands. Is that conclusion correct?
A. Yes, I should think so.
Q. My second question - may I ask you to turn over to page 2? The third line from the top - I will quote again:
"The practice of courts in Germany, so far as I can see it, has led to it that the culprits are either executed or detained in a concentration camp until the end of the war." That is the end of my quotation.
There are only two possibilities in this form of "either/or". There is a third possibility that arises from the practice in Germany, that is to say, that persons might have been sentenced to imprisonment, either to a limited sentence, or to life imprisonment, and for that time they would have been imprisoned under the Administration of Justice. I would ask you to re-examine that possibility. Here the opinion is expressed that the practice of courts in Germany only knew two alternatives, but in practice, of course, there were three possibilities; that is to say, death sentence, a prison sentence, and the possibility of either squashing proceedings or acquitting the defendants.
May I ask you to say whether those three possibilities always existed?
MR. KING: One moment, please. If this cross-examination is based on the letter, which I understand it should be, then I submit that this question is improper, because the witness did not write the letter. The question relates to an interpretation of what the writer meant when he used the disjunctive "either/or". This witness is not in a position to say what the writer had in mind when he used that particular disjunctive. Therefore, I think the question is out of order, and I object to it.
DR. SCHILF: May it please the Court, may I say this? The witness expressly stated that he was responsible for this letter. He further said that he inspired the letter. He further expressly referred to the testimony in the letter which says that the Chief of Office - the witness - expressed the wish that this proceeding should be adopted. That, I think, is what justifies my question.
THE PRESIDENT: There seems to be no particular objection to the right of the defense counsel to ask that question, or to the purport of the question that has been asked. However, the Tribunal feels that this question and the one previous to that went far beyond an interrogation and took the form of an argument. It should be put in the form of a concise question and not involve an argument into the question.
THE WITNESS: May I be permitted to say one word to clear up a misunderstanding?
THE PRESIDENT: Yes.
THE WITNESS: This sentence is not meant to mean that there are only two possibilities. The sentence is supplemented by the following sentence, which begins after the semi-colon. Naturally, there was the possibility that a defendant who had been transferred to Germany was moved into a German prison to spend his prison sentence there. That, of course, was the normal case. The theory "either/or" only becomes clear if one reads the second sentence.
Thank you for permitting me to make the statement.
DR. SCHILF: I have no further questions on that point. That has cleared up the matter entirely. My last question: In the same paragraph there appears the following statement: "A deterrent effect on the inhabitants of the occupied territories will not be connected with either one or the other form of trial, because these trials are held with the public being completely excluded." That is the end of my quotation. To avoid misunderstandings I would like to ask you one more question which was put to you during the cross examination with reference to this passage of the letter. Would you have considered that it was possible for trials to be held with the exclusion of the public? I am merely asking you whether in the general judiciary and under military jurisdiction it was not a general principle that trials which affected the security of the Reich, that the main trials on the subject of the prosecution, generally speaking, were held with the exclusion of the public. That regulation was the result of the juricature act.
MR. KING: How does that question, may I ask, relate to the limits of this letter? The question purports to elicit a question concerning the operation of the military tribunal, which, of course, goes far beyond the quotation which was read.
JUDGE BRAND: I should like to hear that quotation read once more, for my benefit.
DR. SCHILF: In the German text on Page 2, the second paragraph about half way down, it begins with the words: "Neither the one nor the other way of treatment by the courts constitutes a deterrent of the inhabitants in the occupied territories, because these procedures are conducted with a total exclusion of the public." That is the end of the quotation. The exclusion of the public -- that expression is expressly mentioned in this passage.
JUDGE BRAND: Then reduced to a few words you are asking him whether in other trials, and particularly in military trials, the public were not excluded when the security of the Reich was involved.
He can answer that yes or no and we can be through with the whole matter.
THE WITNESS: In other cases, too, the public was excluded from the trials, but the sentence itself was announced in the presence of the public. My misgivings about the decree which I myself helped to draft referred mainly to the seclusion of the defendants after they had been sentenced.
DR. SCHILF: Thank you. I have no further questions.
MR. KING: If there are no further questions, we ask that the witness be excused.
THE PRESIDENT: The witness may be excused.
MR. WOOLEYHAN: May it please the Court, the Prosecution calls as a witness one Josef Hach.
JOSEF HACH, a witness, took the stand and testified as follows:
JUDGE BRAND: You will raise your right hand and repeat after me:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE BRAND: You may be seated.
DIRECT EXAMINATION BY MR. WOOLEYHAN:
Q Witness, please tell the Court your name and where you were born.
A Joseph Hach.
Q Where were you born and when?
A On 24 May, 1906, at Herlingen.
Q During your early life -
A 1922 -
Q I don't believe I was afforded an opportunity to finish my question. During your early life where did you live and what kind of work did you do?
A I lived at Herlingen. I did farm work with my parents.
Q Mr. Hach, were you ever tried by a court for a crime?
A Yes. 1929.
Q What was the crime for which you were tried in 1929?
A 1929 I was tried for murder.
Q At that trial what sentence did you receive?
A I was sentenced to death at that trial, but there was a pardon from the Reich Ministry of Justice which commuted my sentence to a life sentence in a penitentiary.
Q What penitentiary were you imprisoned in?
A The penitentiary at Heisingen near Donauwoerth.
Q Were you ever transferred to another penitentiary?
A In 1939 I was transferred to the penitentiary at Amberg.
Q When were you told that you could normally expect a pardon?
A I was told on the 11th of January that I might expect a pardon -- correction -- after five years I was told that I could expect a pardon.
Q May I ask if the witness answered that question? I got something about five years. Mr. Hach, please tell the Court again when you were told that you could normally expect to be pardoned.
AAccording to the law, as far as I know, the pardon happens after fifteen years, under the new laws when the pardon plea is submitted to the Prosecution which handed it on to the Reich Minister of Justice, and it was then approved by the Prosecution and handed back to the Reich Minister of Justice, and it happened after fifteen years' imprisonment.
Q To sum up, then, and you may correct me if I am wrong, you were tried for murder in 1929, you were sentenced to death, your death sentence was commuted to life imprisonment, you were sent to a penitentiary first at one place and finally at Amberg, and you could normally expect a pardon in fifteen years; is that correct?
A Yes, it is.
Q. Mr. Hach, who commuted your death sentence to life imprisonment?
A. My sentence was commuted by the Reich Minister of Justice Guertner. He was the Minister of Justice of Bavaria at that time.
Q. Mr. Hach, after you went to Amberg prison, did you remain there until the end of the war?
A. I stayed in Amberg until 1943. On the 18th of November 1939 I was moved to the concentration camp at Mauthausen. There I stayed for two days and then I went to the armament factory at --
Q. Mr. Hach, you said in 1943 you were sent from Amberg prison to Muehlhausen concentration camp and then you said you went somewhere else. Where was that? I didn't hear it.
A. On 18 November 1943 I was moved to the Mauthausen concentration camp. There I stayed for two days and then I was moved up to an armament factory at Redelsieck. That was a branch camp of Mauthausen.
Q. At the time when you were transferred to Mauthausen concentration camp in 1943, did any other inmates of Amberg prison go with you?
A. There were twelve of us. First the transport moved up in June or July - it might have been 20 to 30 - they were also taken to Mauthausen concentration camp.
Q. Mr. Hach, before you were transferred from Amberg to Mauthausen concentration camp, did any of the prison officials personally interview or examine you in any way?
A. Before we went to Mauthausen, we were not told by anybody that we were going to be sent there. Early in the morning, we were told to get dressed and we were told that we were going to move off, but nobody knew where to. The head of the sick bay told us that we would probably be moved up to Mauthausen concentration camp. It was said that Mauthausen was the extermination camp for penitentiary inmates, etc.
Q. You mean the morning that you were transferred from Amberg you were told in the sick bay of Amberg prison that you would probably be sent to Mauthausen concentration camp?
A. Excuse me?