The pardon, the decision on the pardon, came from the Reich Ministry of Justice, at least, later on.
Q. The entire procedure concerning pardons was, therefore a very careful re-examination of the verdicts?
A. I could not say that because I had no insight as to how it was handled in the Ministry of Justice. The General Prosecutor was only an intermediary. His task was only to pass on the files, and to state his opinion concerning the question of clemency. For that reason an examination of the sentences took place. For that reason only. A General Prosecutor did not have to revise sentences. Only as far as the question of clemency was concerned, it was of course necessary to examine whether there were any mistakes, any faults in the verdict.
Q. That is sufficient. Witness, do you remember a case which was pending in the beginning of 1942? In that case a pardon was granted after the Special Court, with Rothaug presiding, as far as I know, had pronounced a death sentence on the basis of circumstantial evidence and the defendant had confessed only after the sentence, from which it could be seen that the Special Court was right in his opinion on the basis of circumstantial evidence?
A. I don't know about that.
Q. That was in the Pollack case.
A. I know nothing about that.
DR KOESSL: I have no further questions.
DR. SCHUBERG: I have decided not to enter into cross-examination with this witness.
BY DR. SCHILF (for defendants Klemm and Mettgenberg):
Q. Witness, in your affidavit of 7 January 1947 you also refer to the nullification plea. I assume that you still remember your statements of that time. There is this sentence- I quote--NG-672, Exhibit 179, Document Book 3E, German text page 107, English text page 95, the last third of the document.
..the sentence starts: I quote "It was obvious that the Ministry of Justice only admitted a petition for nullification when it was unfavorable to tho defendant." End of quotation. Witness, may I ask you to tell us on what experience which you had, you based that conclusion.
Court No. III, Case No. 3.
A I came to that conclusion because not a single case had become known to me where the Reich Ministry of Justice had initiated the nullification plea or decided for the nullification in favor of the defendant, whereas in numerous cases, or at least a number of cases are known to me where the Reich Ministry of Justice admitted the nullification plea against a defendant. Of course there were cases of nullification pleas in favor of the defendant, but as far as these cases are known to me, the initiative had to come from the General Prosecutor.
Q This morning you told us that you had to do with these matters, that is, with matters of nullification pleas in favor of the defendants, which you had to initiate, in cases that came from the Special Court of Nurnberg. Are these the cases which you mentioned?
A Yes; I wanted to add the remark that it was not my personal task, but that of the General Prosecutor. Of course, as one of his assistants, I had to deal with these matters, but without the right of decision on my part.
Q In your affidavit the following is stated also, several lines after the sentence I quoted before; and I quote again:
"I do not recall a single case in which Berlin had ordered a nullification plea in favor of a condemned man, on its own initiative, without any suggestion from lower officials." End of quotation.
In that connection I should like to ask you: Wasn't it so, at any rate at least in practice, that the initiative had to come from one side or another; that is to say either, as in your cases, from the General Prosecutor, or, as in other cases from practice, from the defense counsel, in favor of the defendant? Do you have any experience as to whether the Reich Ministry of Justice could, on its part, have the practical possibility to initiate nullity pleas with the Chief Reich Prosecutor, or didn't that have to come in all cases from the lower officials, that is, from the General Prosecutor or from the de Court No. III, Case No. 3.fense counsel?
A The Reich Ministry of Justice, without doubt, had the possibility to initiate a nullity plea on their part and in fact that occurred in several cases as far as I know, and not in favor of the defendant. Of course, my knowledge is based on the Nurnberg area and only on criminal cases, not political cases.
Q You said "the possibility". Do you mean the legal possibility?
A Legal and actual possibility.
Q But practically, the way it happened was that, in the majority of cases, the nullity plea in favor of the defendant had to be initiated by the defense counsel. Can you confirm that?
A I should almost like to say that in the majority of cases, if I can gauge at all, the initiative came from the general prosecutor rather than from the defense, although that might seem surprising.
DR. SCHILF: I have no further questions.
THE PRESIDENT: Is there any re-direct examination?
MR. WOOLEYHAN: No, Your Honor, I have none.
THE PRESIDENT: The witness may be excused.
THE WITNESS: May I just add one remark? I only want to say that my statement, as far as it might incriminate the defendant Rothaug, is made without any animosity on my part and is not influenced by the fact that Rothaug--if it was Rothaug, which I do not know for sure-was against me politically.
(Witness excused)
WALTER BREM, a witness, took the stand and testified as follows:
JUDGE BLAIR: Hold up your right hand and repeat after me the following oath:
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.)
You may be seated.
DR. SCHUBERT (Counsel for the Defendant Oeschey): May it please Court No. III, Case No. 3.the Tribunal, may I ask you to take the document book III-A supplement?
Document III-A supplement. It is the document NG-803, Exhibit No. 485.
EXAMINATION BY DR, SCHUBERT:
Q Witness, would you please tell the Court your name and your occupation?
A My name is Brem, Walter; I was senior judge in Schwabach at the local court.
Q Herr Brem, you were an associate judge at the Special Court for a certain time?
A Yes.
Q When was that?
A That was from November 1944 until April 1945.
Q And who were the presiding judges at the Special Court at that time?
AAt that time the presiding judges were Oeschey, Ferber, and lohrer.
Q In your affidavit you discussed the manner of conducting trials, and you criticized the manner in which Oeschey conducted trials.
A Criticized?
Q One moment, I will ask you the question.
And you state that altogether you know of about 25 cases presided over by Oeschey that you attended.
A Yes, I believe that I estimated that correctly.
Q May I ask you the following? In all these cases that you experienced under the presidency of Oeschey, is it true that you believed you had reason to criticize the manner in which they were conducted?
A No, that was not true in all cases; of course, there were several cases where the manner in which the trial was conducted could not be objected to, in my opinion.
Q Wasn't it also the case that excesses on the part of the de Court No. III, Case No. 3.fendant Oeschey against a defendant may have had the reason in the fact that the defendant himself, by lying and obstinacy, had already made the procedure more difficult?
A Yes, in some cases of excesses the reason was apparently that the defendant had caused it. Examples of lies and obstinacy are correct.
Q At that time was the defendant Oeschey very overburdened with work?
A Yes; I had the impression that he was greatly overburdened.
Q Was he very nervous?
A Yes, I believe that signs of nervousness could be seen.
Q Witness, how were trials conducted by Oeschey, objectively speaking? Just a moment. Was he thorough, in your opinion? Were these trials exhaustive? Did they consider elements or circumstances in favor or not in favor of the defendant? What can you say concerning that complex?
A I have not made any observation that in any case an essential fact or an essential circumstance had not been dealt with in the course of the proceedings.
Q Herr Brem, do you remember a case where a local investigation was initiated by the Court and therefore the main trial was postponed?
A Yes. It was the case of a French civilian worker who, if I recall correctly, was called Camille Midi. During the time he stayed in Nurnberg he frequently had found refuge in an air raid shelter. That air raid shelter was located in a building in Nadlersgasse in Nurnberg. That building was damaged by a bomb-hit, and by that bombhit a hole was blasted into the wall of the building. The defendant, Midi, after that damage occurred, had stolen a suitcase from the air raid shelter. When he was interrogated by the police he had stated that he was put in a position to take the suitcase by entering through the hole in the outside wall. Therefore, it was assumed in the Indictment that he had taken advantage of circumstances caused by the war; that is, the fact that this hole appeared in the outside wall and that Court No. III, Case No. 3.he had taken advantage of that fact to take the suitcase.
In the main trial, however, he asserted that he did not take the suitcase because he could use that hole in the wall, but he had entered from the back, through a gate, or through a back door. I don't remember it precisely any more, but at any rate through a normal means of entry into the building.
Thereupon the main trial was interrupted in order to investigate the local conditions on the first spot.
Q. Witness, may I ask -
MR. WOOLEYHAN: May it please the Court, I regard this testimony about this case as strictly defense material, and I do not consider myself bound by those answers. It is completely outside the scope of the affidavit. It is defensive material not elicited from what the witness said in the affidavit that is supposed to be the basis of examination, and I petition the court to be freed from responsibility as far as what the witness has said.
DR. SCHUBERT: May the Court please, may I state my position on that point? In the affidavit criticism is made of the manner in which the defendant Oeschey conducted the trial. To that point I have put the question in favor of my defendant, and a question which is admissible, in my opinion, to find out whether proceedings were conducted in a thorough manner. For that I tasked for an example. That the witness goes into great detail in explaining that example I cannot help. The question was only whether a local investigation took place. I believe that that question, therefore, is in connection with the affidavit.
THE PRESIDENT: The objection will be sustained.
Q. Witness, in your affidavit you pointed out that the defendant Oeschey showed prejudice.
A. Yes.
Q. May I ask you whether it occurred that Oeschey from the outset announced to the defendant that he would incur a certain sentence?
A. I cannot remember any case where from the outset he had announced a definite sentence.
Q. Then you refer to the fact that Oeschey informed you before the session and showed his intentions concerning the extent of the sentence?
A. Yes.
Q. First of all, could you tell me who had studied the files before the trial?
A. Doubtless that was the presiding judge, and if I dealt with the case, I tried to be able to look at the files before. That was always easy, but since I asked for them repeatedly, at the office, in most cases it was possible for me to get hold of the files. Whenever I was not successful I went to the session somewhat earlier and looked through the files which I took from the Judges's table before the session started.
Q. If I understand you correctly then you as the associate judge had a chance to see the files for your own information before the session as a rule?
A. Yes. In individual cases it might have been impossible, but I could not remember any such case with certainty.
Q. Herr Brem, if Oeschey informed the associate judges before the trial and also mentioned the extent of punishment, did Oeschey at any time before the session started make a definite statement concerning the sentence, or did he always make it clear, that in the end everything would depend on the result of the trial?
A. He did not state a definite sentence or the extent of the sentence as the one to be expected. He only discussed in general terms what kind of sentence would be adequate in his opinion.
Q. Furthermore, you state he did not like any contradiction.
A. Yes, correct.
Q. As for contradictions or, let us say, objections, by the Associate Judges, were they ever discussed in court?
A. That varied greatly. Sometimes objections were passed over quickly, rapidly. Other objections agains were discussed.
Q. Herr Brem, you came to the Special Court at that time but you had no experience in Special Court matters, is that correct?
A. Yes, that is correct.
Q. As regards those objections about which you say they were passed over quickly, were they of a kind for which there existed already a standard practice at special courts which you might not have been familiar with?
A. That is hard for mo to judge. There may have been cases for which there was a practice with which I was not familiar.
Q. Wasn't it frequently, too, that an objection was passed over more quickly if the other associate judge was also of the opinion of the presiding judge?
A. Yes, of course, that was the case. If the other associate judge agreed then there was no longer much discussion about the question, the point of the objection.
Q. Witness, in a case where a death sentence had been demanded, or at least was taken into consideration, did you, Witness, over make a suggestion which Oeschey accepted?
A. Yes.
Q. Could you tell us any details about that?
A. As for the facts and the particular circumstances of that case, I cannot remember those. I only recall the following. It was a case where it was not simple to render a verdict, other than the death penalty. I at that time had an idea which, however, I did not consider quite adequate myself, that was to render a more lenient sentence.
But I tell myself at the same time that there must be a possibility to apply leniency. Thereupon Oeschey formulated that thought in a different manner, and in his formulation that thought seemed acceptable to me and more adequate.
Q. Witness, if in the course of the proceedings you considered a point not investigated thoroughly enough, could you put questions or make suggestions?
A. I did not ask either the defendants or a witness immediately during the proceedings, but in a few cases I whispered a question to Oeschey, and if I remember correctly, he also put this question.
Q. Witness, at the beginning of 1944 as associate judge you attended a trial against a man by the name of Jankovic Lubinco who was charge with burglaries in airraid shelters?
A Yes, that was the beginning of 1945.
Q 1945, yes, correct. Did that defendant have a defense counsel?
A No, he had no defense counsel.
Q Do you still remember, witness, whether the prosecution requested that a defense counsel be appointed?
A In my recollection, that request was not made.
Q Do you know on the basis of what regulation one did not appoint a defense counsel?
A Yes. That could have been done on the basis of the Fourth Simplification Decree--a decree for the simplification of procedure-which, as far as I remember, was issued in May 1944.
Q Do you still remember the case Yankovic? What it was about.
A Yes. Thank you.
Q Witness, according to your recollection, was that a case where according to the jurisdiction of the special court at that time a death sentence could not be avoided?
A In the case of Jankovic, according to the merits of the case, in my opinion it was not very well possible to avoid pronouncing a death sentence.
Q Do you still remember whether the question of appointing a defense counsel was discussed in the court at that time?
A I cannot definitely remember a discussion of that matter any more, but I have to say that there may be a trace of recollection to the effect that that question may have been briefly mentioned between Oeschey and the other associate judge.
Q And what did the other associate judge say?
A I do not remember that precisely any more, but judging from the brevity of that discussion he apparently did not consider the appointment of defense counsel necessary.
Q The main trial in that case took place on the 26 of January?
A That may be right, yes.
Q Do you know, witness, that in the course of January 1945 one of the most violent air attacks in Nurnberg took place?
A On the third of January -
Q One moment--which effected the inner city particularly, and by which a large number of attorneys' offices were destroyed so that in scheduling the trial for the season too it was difficult to get in touch with a lawyer. Can you say anything about that?
A On the third of January 1945, a great air attack on Nurnberg took place, and I remember that by air attack many lawyers' offices were destroyed.
Q Thank you. Witness, you stated here in your affidavit concerning the case Jankovic that the defendant hardly had a chance to speak. Wasn't he questioned thoroughly or how should I understand your statement?
A The procedure was very fast. Yet, as far as I remember, I do not have the impression that any essential point was not covered. The defendant said little, as far as I can remember. He admitted the facts right away, as far as I know.
Q The defendant confessed then?
A Yes; if I remember correctly, he confessed.
Q. Witness, in your affidavit concerning the non-appointment of a defense counsel, you state that that was an arbitrary measure on the part of Oeschey which could not be surpassed in its despicability. I only want to ask you concerning that statement, whether that was the way in which you expressed yourself? Are these your words?
A I don't believe that these are my own words. However, I naturally considered the fact that a defense counsel was not appointed at least serious blemish, if I can say so.
Q May I ask you, witness, who dictated these words which I have just quoted?
A The transcript was taken down by Mr. Einstein.
Q Witness, then you mention a case "Sippl." Unfortunately, I do not have the files at hand.
Do you happen to know who composed the sentence and the opinion in the case of Sipple, because you object to part of the opinion?
A I believe that it was the other associate judge, and as far as I know that was Hofmann, who wrote the opinion.
Q The defendant Sipple had hit a prison warden. What kind of an instrument did he use?
A The defendant used the seat of the latrine from his cell to hit the warden. That was a wooden ring: hard wood, I believe.
Q According to what legal provisions, as far as you can remember was Sipple sentenced?
A Sipple was sentenced, on the basis of the decree concerning violent criminals which provided, that an attack with a weapon or a similarly dangerous means should be punished by death.
Q What, therefore, was that wooden seat considered to be?
A If I remember correctly, it was considered to be a means similarly dangerous as a weapon.
Q In your opinion, witness, was that assumption on the part of the court a violation against the law or the jurisdiction of other courts, such as the Reich Supreme Court?
A The assumption that this was a means similarly dangerous was considered too severe by me, but on the basis of the law, there can be no objection against that assumption; and the jurisdiction of the Reich Supreme Court, as far as I know, in similar cases also assumed that it was a dangerous means. I base my attitude on the fact that I was and still am of the opinion that such extraordinary provisions for punishment as contained in the ordinance concerning violent criminals should have been corrected by a more lenient interpretation. But the jurisdiction of the Reich Supreme Court served as precedent for the opinion, such as it was expressed in that sentence.
Q And, witness, can you confirm that the Reich Supreme Court frequently corrected a more lenient opinion of the Special Courts, as far as nullity pleas were concerned?
A In juridical periodicals, I read frequently about decisions where after the nullification plea had been made, sentences by Special Courts were nullified because allegedly they had been to lenient. I, however, considered the original sentences more adequate.
Q One last question concerning the Sipple case, witness. In your recollection, did Sipple have a defense counsel?
A Today, I can not remember whether Sipple had a defense counsel.
Q Thank you. That concludes my cross examination.
EXAMINATION BY DR. GRUBE: (Attorney for Defendant Lautz) May it please the Tribunal, I ask to be permitted to continue the cross examination, and I should like to concern myself with Document NG-316, Exhibit 79, which is to be found in Document Book I-C, starting on page 81 of the German text.
In addition to that I shall probably refer to various other documents in the course of the examination which are to be found in Volume III-A.
THE PRESIDENT: You evidently refer to Supplement III-A, do you not?
DR. GRUBE: No, the original Volume III-A.
JUDGE BRAND: Are you referring to a third affidavit by this witness Brem?
DR. GRUBE: No, I shall refer to various indictments which are contained in Volume III-A, and are connected with the statements of the witness in the affidavit.
BY DR. GRUBE:
Q Witness, in your affidavit you stated -
MR. WOOLEYHAN: If the Court please, I will have to repeat my objection of this morning. I object to cross-examination of any affidavit other than the affidavit of the witness.
JUDGE BRAND: I Understood counsel to say that he wanted to refer to some indictments to which this witness had referred in his affidavit; was that right?
DR. GRUBE: Yes.
MR. WOOLEYHAN: I have no objection to that then.
BY DR. GRUBE:
Q Witness, in your affidavit of the 25th October, 1946, you have stated that for a while you were investigating judge for the People's Court, and then assistant to the Reich Prosecution.
A Yes.
Q May I ask you during what time you were investigating judge for the People's Court?
A It was from about March, 1941 until July, 1943.
Q During what period did you work as assistant with the Reich Prosecution?
A From the 15th July, 1943 until the beginning of January, 1945. My formal assignment existed for longer, I believe, until July, 1944. However, during the latter period I was ill and not active in my profession.
Q Weren't you practicing in the Special Court then?
A From November, 1944 until April 1945 I was with the Special Court.
Q And then you were no more connected with the Reich Prosecution?
A No, I had formally left the Reich Prosecution on the 15th July, 1944.
Q Apparently there is something wrong in your statements, witness. You said before you had been investigating judge from March, 1941 until July, 1943.
A Yes.
Q And during what period were you an assistant with the Reich Prosecution?
A Subsequently, from July, 1943 until the beginning of January, 1944, formally until 15th July, 1944.
Q Yes. Now, first concerning your activity as an investigating judge, witness -
A Yes.
Q Who was your superior in your functions as investigating judge of the People's Court?
A That purely technical organizational question is not quite clear to me. In part we were attached to our local authority, local office; at the same time we got directives through a Landgerichtsdirector Waller, District Court Director Waller, who also was an in vestigating judge for the People's Court, and he was designated chief investigating judge.
Q Witness, who was the superior of that District Court Director Waller? Was he subordinate to the President of the People's Court, or to the Chief Reich Prosecutor?
A I never talked to him about that. I believe, however, that he was subordinate to the President of the People's Court.
Q Witness, in German procedure, in the so-called preparatory procedure before the indictment has been filed, if the Prosecutor considers it essential to carry out an investigation, that is to say, interrogate a defendant, or a witness, whom does he use for that?
A He may use the investigating judge, Ermittlungsrichter; he may also do it himself; or use officials deputized by him.
Q But if he uses an investigating judge, if he uses a member of the Administration of Justice, then its the investigating judge?
A Yes.
Q Witness, is it correct that the local court judge who has been asked by a prosecutor to carry on investigations, he has to abide by the principles valid for judges?
A Yes.
Q Is it correct that that investigating judge in those cases where the decision, according to the law, depends upon his good judgment, can decide quite independently?
A Well, only in the question of arrest.
Q Yes. Also in the question of swearing in witnesses?
A But if there are no instructions, no definite directives, then he can use his own judgment, and on the basis of his own judgment he may decide whether he wants to swear them in or not, but in the question of arrest it only depends upon his judgment. -
Q Yes.
A In consideration of applications or requests.
Q Witness, is it therefore correct to say that the investigating judge in cases where, according to law, his decision depends solely on his judgment as a provisional judge, is not bound by the directives?
A He is not according to regulations; he is not bound by the instructions or directives.
Q Witness, you have just mentioned the investigating judge whom the prosecutor at ordinary courts uses in order to carry out investigations. These functions of the local court judges as investigating judges performed by the People's Court judges of whom you were one?
A Yes. But there were also investigations carried on by the normal investigating judges of the local courts.
Q And for investigating judges of your type, there were the same principles -- the same principles were valid as for any investigating judge whom the prosecutor could use?
A Yes.
Q So you also could apply the principle that in cases where de cisions depended upon your judgment, you were not bound by directives?
A Yes.
Q Witness, then I may also assume that you adhered to the law here?
A Of course, yes.
Q And a large amount of the assignments for investigations probably consisted in interrogating accused people, -
A Yes.
Q I would like to interpolate a question. Were these accused under German law interrogated under oath?
A No, they are not interrogated under oath.
Q Was that the same before 1933?
A Yes.
Q These accused, can they make an affidavit under the German penal code?
A No, these affidavits have no value according to German law.
Q Was that the same before 1933?
Q Witness, in these interrogations which you carried out did you have to observe certain directives?
A I was told that interrogations had to be thorough, not only in the manner that one reads the police records of the case and asks whether they are correct, but that the accused recounts all essential points, and also from the subjective point of view, i.e., that he explains what he thought about.
Q Were you also told that the accused should have the opportunity to state facts in his favor?
A I cannot remember that I was told that, but in fact, in all cases where the accused stated facts in their favor, I had that entered in the minutes.
Q Therefore, in your interrogations, you were not only interested in material against the accused.
A No, not only.
Q Did you exert any pressure on the witnesses?
A No pressure at all. If I may mention, I very infrequently interrogated witnesses; most of the time they were accused, and I told them, too, before the interrogation that it was of their own free will whether or not they wanted to make any statement.
Q Did you ask any leading questions?
A No.
Q And you also permitted that the witnesses could bring up material in their favor?
A Of course.
Q Did you also permit that they made applications to the prosecution of evidence in their favor being produced?
A Of course; that was also done by the accused in individual cases.
Q Witness, these statements and applications of the accused had to be entered in the minutes of the interrogation?
A Yes.