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.
Q They had to be read through by the accused?
A Yes.
Q And signed?
A Yes.
Q Did you ever force an accused to sign?
A No.
Q To sign minutes with which he did not agree?
A No, never. He could have refused to make the statement; I couldn't have done anything about that.
Q And these minutes were passed on to the Landgerichtsdirektor?
A No. I passed them on to the Reich Chief Prosecutor.
Q You passed on these minutes to the Chief Reich Prosecutor; did you ever retain any interrogatories which contained statements in favor of the defendants?
A I do not understand your question.
Q Did you present the entire material to the Reich Chief Prosecutor?
A Yes, at all times.
Q Witness, is it correct that in the case of crimes for which the People's Court was competent and about which you had to conduct interrogations, that they were always crimes in the sense of the penal code, the German penal code?
A Yes, always.
Q Witness, is it furthermore correct to say that a person accused of any such crime could only be arrested if there wore serious suspicions?
A Yes, serious suspicions had to exist.
Q Witness, therefore, actually, as far as your interrogations were concerned, you were always confronted with the question whether there was the definite suspicion against the accused that he actually committed the crime with which he was charged?
A Yes.
Q Is it correct, witness, that the question whether such a suspicion existed, had to be decided by you only on the basis of your judgment?
AAt first, It had to be decided by me alone, and later it had to be examined by the court when the case was scheduled.
Q But, you had to decide at first whether such a definite suspicion existed?
A Yes.
Q Witness, did you ever issue an arrest warrant at all, though in your opinion as a judge there was no suspicion?
A No.
Q Therefore, you only issued arrest warrants if on the basis of the investigation you had come to the conviction that there was a definite suspicion existing?
A Yes.
Q Did you deal any differently with foreigners?
A No, there is no difference.
Q Then, in the case of foreign workers who were accused of trying to have contacted the Czech Legion, you only issued warrants, if on the basis of your own investigation, you yourself were convinced that there was a definite suspicion?
A Yes.
Q Witness, what did you do in cases where already an arrest warrant existed, but where on the basis of your investigation you had arrived at the result that there was no definite suspicion?
A No such case occurred. Cases where a warrant already existed were very rare.
Q In general were people only under police arrest?
A Yes.
Q And you have the man put in arrest pending trial?
A Yes.
Q Witness can you recall a case where the Reich Prosecution brought a charge, although you had not issued an arrest warrant?
A Yes, I have to limit that question to the effect that I do not know of any case where the Reich Prosecution brought a charge, if I had refused to issue an arrest warranty that is how I should understand your question, is it?
Q Yes, in other words, you do not know of any case where the Reich Prosecution filed charges where you, yourself, had refused to issue an arrest warrant previously?
A No.
Q Witness, your experience in your work as an investigating judge extended over what field geographically?
A Bohemia and Moravia.
Q Witness, on the basis of that activity in Bohemia and Moravia, is it known to you that in the Protectorate, no Polish workers were employed?
A That, I do not know; I could not say anything about that. However, I have to mention that I got several cases where Poles were accused, but I no longer recall in what area, what region these acts had been committed.
Q Does that have to do with your activities as investigating judge or with the Reich Prosecution?
A Several cases came to my attention also while I was investigating judge.
Q Is it known to you whether these Polish workers were occupied in the Protectorate?
A No, that I cannot remember.
Q Witness, is it known to you that in the Protectorate, illegal recruiting offices of the Czech Legion were at work?
A I know that it was pointed out that there were illegal recruiting offices of the Czech Legion; of course, I could not make any observations. I only heard what the accused told me, and they, of course, did not state it as clearly as that. But, at any rate, I was informed that allegedly these existed.
Q Did the accused also tell you that these recruiting offices, whenever people applied to join the Legion, gave 1500 Crowns and forged papers?
A No, I cannot remember that.
Q Did the accused ever tell you that these recruiting offices smuggled the people over the border secretly?
A Well, there was a suspicion to that effect, simply because a number of people apparently were to some extent aware of the direction of the route they had to take to get to the border.
JUDGE BRAND: I am interested in observing the question which Counsel put, whether defendants, accused persons, had told the witness these things. I did not understand him to say that the accused persons had told him. He said there was a suspicion. I think it would be very interesting to know where the suspicions came from.
Q Witness, may I ask you to answer this question by the Court?
A Well, from the information which I received and from what the defendant, the accused, told me, I gained the impression, that there was an organization, a connection, if I may say so, in existence.
Q You assumed that from the statement of the accused?
A Not only, but in connection with what I had heard from other sources. Going through the files, one could find something; things that the police knew from other proceedings. And, that is what created this impression.
Q So, witness, if I understand you correctly, that impression was gained on the one hand from the statements of the accused?
A Yes.
Q And on the other hand from official information?
A Yes.
Q Witness, is it known to you that as far as attempts of the recruiting offices of the Czech Legion to bring people across the border were concerned, clashes with the German border guard occurred frequently?
A Violence?
Q Yes.
A Well, I cannot remember any such case.
Q Witness, is it known to you that among the foreigners there was a very good information service?
A That is the same thing as the other question. Partly from the information I received and partly from the statements made by the accused, I gained the impression that they had some source of infor mation.
Q Witness, is it known to you that in many cases, foreign workers, if they tried to cross the Swiss border ware returned by the Swiss border police to Germany?
A I can remember that was frequently discussed; that the border crossing was made impossible by the Swiss border guards.
Q Is it known to you that the crossing of the border into Switzerland was made impossible by the Swiss border guard because Switzerland was not in a position to take care of any more workers?
A No, I never heard of that reason.
Q Witness, you stated before that you never had issued an arrest warrant against a foreigner who was accused of trying to get in touch with the Legion unless on the basis of your own investigation, you had arrived at the result that a definite suspicion existed?
A Yes.
Q You have, furthermore, stated that you did not know of any case where the Reich Prosecution had filed charges, where you had refused to issue an arrest warrant?
A Yes.
Q Witness, may I summarize these to answers: You state that you do not know of any case where the Reich Prosecution at the People's Court, filed charges where you, yourself, were not convinced that there was sufficient suspicion that the accused tried to get in contact with the Legion?
A Well, that sufficient suspicion existed, as far as I was concerned, but it was a matter for the Reich Prosecution to examine whether that is sufficient to file charges. Later it was a matter for the court to examine whether they could sentence on the basis of the evidence.
Q Witness, you were only entitled to issue an arrest warrant if there was a definite suspicion?
A Yes.
THE PRESIDENT: You have gone over that very subject matter, over and over again.
Q Witness, were you ever asked by anybody to use unethical means to prove that a Czech had tried to get in contact with the Czech Legion?
A No, it was never demanded of me to use unethical means and I would have rejected such a demand.
Q You have received such assignments for investigation?
A Yes.
Q But, the assignments probably consisted merely in finding out whether they had tried to contact the Legion?
AAccording to the assignment, I mostly had to question the accused and the minutes of a police interrogation were available. There were, of course, cases where a witness had to be questioned. But all these cases were quite in order, under the penal code of procedure.
THE PRESIDENT: We will take the usual 15 minute recess at this time.
(Thereupon a recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. GRUBE: May it please the Court, I would like permission to continue the cross-examination.
BY DR. GRUBE:
Q. Witness, you testified just before the recess that commissions were given to you to make investigations into whether the defendant concerned really had connections with the Czech or other foreign legions.
A. Yes.
Q. May I ask you whether or not the following sentence -- on page 82 of the German document book, and on page 2 of your affidavit -is at least somewhat unfortunately phrased? I quote: "I had been instructed by the Public Prosecutor of the People's Court to bring the defendants somehow into a certain contact with the foreign legions."
A. If I should explain this sentence -
MR. WOOLEYHAN: (Interposing) Just a moment. Before the witness answers, I suggest that counsel ask him a question.
BY DR. GRUBE:
Q. Witness, do you maintain this sentence? Do you stand by it? May I perhaps -
A. Yes. I shall explain thisto you. It was as follows. From the previous interrogation by the police, the subject of the interrogation of the defendant was already to be seen, namely, the question as to whether he had had anything or had had nothing to do with the legion.
That is how the sentence was meant.
Q. You said that on the basis of the police investigations you had to deal with the question as to whether the defendant had anything to do with the legion?
A. Yes. That resulted from the connection between the facts which I sow from the files.
Q. You just said that you had the order to find out whether the accused had anything to do with the legion.
A. Yes.
Q. But you did not have tho order to absolutely determine that the defendant had something to do with the legion?
A. No; I had to ask him whether he knew anything about it and whether he had anything to do with it.
Q. And you gave those defendants the possibility to produce evidence in their defense?
A. I then requested them to tell me what they knew about it. Naturally , if they produced evidence in their defense I also took it down.
Q. All right, now let us go on to another question. Witness, as you have already stated before, from the 15th of July 1943 until January of 1944 you were working as assistant with the Reich Prosecution. May I ask you in what division you were working?
A. Department 6.
Q. And who was your superior?
A. Chief Public Prosecutor Dr. Huhnstock.
Q. In your capacity as assistant in the Reich Prosecution, did you also take part in session as a representative of the Prosecution?
A. Once I was assigned to a court session -- no, I believe it was even twice.
Q. Can you state which cases were concerned?
A. No, they were not cases on which I had been working before.
Q. Witness, in your affidavit, on page 4, you also state the following:
"During my activity as Assistant of the Reich Prosecution at the People's Court, I was concerned, among other things, with the drawing up of indictments. Chief Public Prosecutor Huhnstock, who was my superior, instructed me to base my briefs upon a closed case. In cases of parallel offenses, I copied such briefs word for word, with the exception of date and scene of the crime."
A. Yes.
Q. Continuing the quotation:
"I should like to mention hero that it was generally permitted to copy briefs if the offenses were the same."
Witness, may I first of all ask you, is it known to you that Dr. Huhnstock gave a closed case to you as a sample?
A. No, he did not give me a case as a sample, but when I had to draw up an indictment I looked for a case which had similar conditions, and I used that as the sample.
Q. Witness, may I ask you why you searched for a case as a sample?
A. Yes; the following reasons were responsible for that. The cases on which I had to work had the same circumstances as many cases which had been worked on before by others, therefore, a certain standard form in regard to extent and content of the presentations had been worked out, and at the time when I was working, this subdivision in typical cases; If I may say so, had already been advanced to a large extent so that
JUDGE BRAND (Interposing): May I interrupt you, Mr. Witness? I suspect that everyone agrees that there is no political or criminal significance of any kind in the use of forms in the preparation of indictments or briefs. I assume that it is done in every civilized country, and I don't believe you need to convince the Court, certainly not myself, that forms may be properly used in similar cases.
DR. GRUBE: May it please the Court -
JUDGE BRAND: I must suggest that you just go on to something else, if you will. Can't you go on to something else? We understand those matters, and did many years ago.
BY DR. GRUBE:
Q. Witness, the Reich Prosecution at the People's Court legally and truly had the same position as any prosecution at any other court?