Speaking for my associates I should like to know whether the members of the Defense Counsel, at this time, find any objections to the procedure which I have suggested? And, I suggest that you do not address the Court because the Court is not here.
DR. SCHILF: May it please the Court -
JUDGE BRAND: We did not hear you Mr. Schilf.
DR. SCHILF: Your Honor, on our part, we apparently have no objections that this procedure should be appointed; that, in other words, a Commission of the Court should carry on the cross examination, and that the record should then be submitted to the entire Court.
JUDGE BRAND: We thank you for that as your answer. I should like to ask if there is any of the Attorneys of the Defense who, at this time, think there will be any objections whatsoever to this procedure. Do you feel that you can speak for all of them, Dr. Schilf?
DR. SCHILF: Yes, I believe I have convinced myself that none of my colleagues has any objections of any kind, so that I feel that I am empowered to speak for all of the Defense Counsel, to make that declaration on behalf of all Defense Counsel.
JUDGE BRAND: Then, I am sure that when the Court convenes we may be able to count upon the Defense Counsel, then making a similar pronouncement in open Court so that record will be clear upon that matter.
It appears to be necessary that we should recess -- I beg your pardon-- it appears to be necessary that the Judges should not meet with you again until tomorrow morning at 9:30 in order that, in the meantime, we may secure, if possible, a written order which will be the official order of the Court, signed by Judge Marshal, and the other members of the Court, which would then authorize us to proceed in the manner we have outlined.
I think that disposes of this matter for the time being in the conference.
I have two other matters about which we have also discussed.
The time is rapidly approaching when the defense will enter upon the presentation of its case. Expressing my very clear opinion, I would say that the Court, when it convenes, will have complete authority to determine the order in which opening statements shall be made and in which the proof shall be presented in behalf of the various defendants.
However, it seems very important and very proper that we should have from you in the very near future a statement from defense counsel, after they have jointly conferred, as to their wishes concerning the order in which opening statements shall be made and also concerning their wishes as to the order in which the various defendants shall present their testimony in their own defense.
I think it quite likely that the Court will consider the wishes of defense counsel so far as may be possible and proper as to this matter of the order of the making of opening statements and the order of proof. That is a matter which I think we should not ask you to express any opinion on that at this time, but I suggest that when we gather tomorrow morning that you have a written memorandum, if you can do so, which will indicate your collective ideas on this matter of the order of proof.
I would also suggest to you that you give serious consideration to the manner in which the defense, speaking of it as a whole, will present such part of your testimony as applies to all of the defendants equally.
You have indicated rather clearly that there are some matters relative to your views of German law and the like which may be applicable equally to all, and it would surely be a misfortune to have fifteen separate presentations of matters which apply equally to all. Will you gentlemen give that your consideration and be prepared to indicate preferences when we meet tomorrow?
Is there anything else which we should confer about during this unfortunate occasion?
MR. WOOLEYHAN: Your Honors, I only suggest that the Marshal of the Court be instructed to have the witnesses available beginning tomorrow morning in the same manner as if Court were in regular session.
JUDGE BRAND: I think the Marshal will do that.
MR. WOOLEYHAN: And continue to do so until either the court convenes formally again, and instructs them otherwise, or until some other order is issued.
JUDGE BRAND: I am sure the Marshal will cooperate in that respect. As soon as an order has been prepared the matter will be made definite. Thank you, gentlemen, all of you. I am sorry to say that we must not proceed further. We will reconvene tomorrow morning at nine-thirty.
(Whereupon, the proceeding was adjourned until 9:30, 3 June 1947)
Court 3 Case 3 (COMMISSION III) Official Transcript of the Commission of American Military Tribunal III, in the ratter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 3 June 1947, 0930-1630, The Honorable James T. Brand presiding.
THE MARSHAL: Persons in the courtroom will please find their seats.
The Honorable, the Commissioners of Military Tribunal III. The Commission is now in session. God save the United States of America and this Honorable Commission. There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you please ascertain if all of the defendants are present?
THE MARSHAL: May it please Your Honors, all the defendants are present, in the courtroom with the exception of the defendant Engert, who is absent due to illness.
THE PRESIDENT: Let the proper notation be made.
At this time we will read the order which was made and signed r yesterday by the full membership of Military Tribunal III in this case. This order constitutes the authority by reason of which the present judges are proceeding as commissioners:
"It appearing to the Tribunal that the prosecution has introduced into evidence certain affidavits and that at the request of defense counsel the affiants have been brought to Nurnberg for cross-examination and are now available for that purpose, in order to expedite the trial of this case it is deemed expedient to appoint commissioners to hear the testimony of said affiants upon their cross-examination and redirect examination, if any, and to certify the verbatim transcript of such testimony and examination to the Tribunal.
"Now, therefore, it is ordered that the Honorable James T. Brand, the Honorable Mallory B. Blair, Judges of this Tribunal, and the Honorable Justin W. Harding, Alternate Judge, be and they each are appointed as Commissioners to take the testimony of such affiants as may be available for cross-examination and to certify the same to this Tribunal for its consideration. To this end, each of said Commissioners Court 3 Case 3 (COMMISSION III) are authorized to administer oaths, to direct the proceedings, and to propound such questions as they may deem advisable.
The Marshal is directed to produce the witnesses for cross-examination and redirect examination from time to time as may be directed by the Commissioners and until further order of this Tribunal. The hearings will be held in the regular courtroom of Tribunal No. III and the record shall be taken and recorded as is done when the Court is in open session.
The first session will be held at 9:30 o'clock in the forenoon on Tuesday, the 3rd day of June 1947.
"This order is made pursuant to provisions of Ordinance No. 7, Article 5, Section E."
Signed: Carrington T. Marshall, Presiding Judge; James T. Brand; Mallory B. Blair.
Are the parties ready to proceed with the cross-examination of the first witness?
DR. JOSEF BAEUMLLR, a witness, took the stand and testified as follows:
JUDGE BLAIR: Will you stand up please, sir?
Hold up your right hand and repeat after me the following oath:
I swear by Cod, 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): Your Honors, may I begin with the cross-examination?
THE PRESIDENT: Yes.
EXAMINATION BY DR. SCHUBERT:
Q. Witness, please tell the Tribunal your name and your profession.
A. Dr. Josef Baeumler.
JUDGE BLAIR: Please identify the instrument about which you are going to examine him.
Court 3 Case 3 (COMMISSION III)
DR. SCHUBERT: I am here concerned with document NG-680, Exhibit No. 479, Document Book III-A, supplemental volume.
BY DR. SCHUBERT:
Q. Witness, please tell the Court your name and your profession.
A. Dr. Josef Baeumler, Land gerichtsrat, retired; at the present time auxiliary worker.
Q. Dr. Baeumler, during what time did you work at the Special Court in Nurnberg?
A. From 1 March to 1 May 1940, and later on from May 1943 until the end.
Q. During the period from 1 May 1943 until 1945, who were the presidents of the Special Court whom you knew?
A. Landgerichtsdirector Dr. Ferber, Landgerichtsdirector Oeschey, and Landgerichtsdirector Moder.
A.. Dr. Baeumler, in your affidavit you say of Oeschey that his manner was insulting to defendants. Were those excesses without any motive, or was it your impression that there was a motive either in the manner of the defendant himself or in excessive nervousness or over-strain on the part of Oeschey?
A. It is difficult for me to state the reasons and the motives, but it is possible that in one case or another the reasons were to be found in an irritated mood or an over-strain, overburdening with work, or that it was due to the insubordination on the part of defendants who refused to confess.
Q. Dr. Baeumler, was the manner in which the defendant Oeschey conducted his trials such that those facts which spoke in favor of the defendant, as well as those which spoke against the defendant, were treated exhaustively?
A. I have to answer that question affirmatively. The facts were brought out without any doubt, in spite of the offensive manner in which the trial was conducted.
Court 3 Case 3 (COMMISSION III)
Q. Dr. Baeumler, you also mentioned the severity of the sentences which were passed there. Were you under the impression that the defendant Oeschey considered those sentences just?
MR. WOOLEYHAN: One moment, please. I object to that question. It is calling for the opinion of a witness on a matter in which no foundation has been laid that he could possibly know the answer. The question requested the witness' opinion of another man's opinion. There has been no foundation for that question.
DR. SCHUBERT: In reply, may I state briefly that in my view it is very relevant as to whether the defendant Oeschey -- who, in the affidavit by this witness, has been reproached again and again with the severity of his sentences -- passed those severe sentences because he was convinced that they were just, or whether just the opposite was true. Therefore, I believe that this question pertains to the affidavit and also is absolutely necessary to clear up the context.
THE PRESIDENT: The state of mind of the defendant and his motives may well be relevant, bu the question propounded to this witness as to his opinion concerning the state of mind of the defendant is objectionable, and the objection will be sustained.
BY DR. SCHUBERT:
Q. Dr. Baeumler, you then state that Oeschey only in very rare cases could be persuaded to depart from his views. If I understand you correctly, you frequently , or occasionally, did express a different opinion. Is that correct?
A. Yes, I did so, but I never prevailed with my opinion.
Commission 111 Case 111
Q Was your opinion of a different kind ever discussed?
A That is possible.
Q It is not correct, Dr. Baeumler, that once for an hour and a half you argued about your opinion which differed from his?
A That concerns a case in Straubing, as I recall. It was the case of Paragraph 175 concerning offenses against children. I remember we argued about it for a long time. I was against the death penalty, and I could not share the view which Oeschey put forward.
Q You then say that Oeschey was guided points of view and points of guidance which he had received from the RSHA and from the SD. Do you know anything as to whether the defendant Oeschey had any direct contacts with the RSHA or with the SD?
A I do not know any details, nor do I know on the basis of what points of view or how the defendant should have happened to refer to that, because I was not informed about that and I am not informed about it now.
Q As you refer to Oeschey's political tendencies did you at the sessions hear him give long political lectures?
AAt the sessions he frequently utilized national socialists ideas either for the benefit of the audience or the court, or the defense. Perhaps he did this in order to instruct and to influence the audience in the national socialist sense, but generally speaking these lectures were not long.
Q Dr. Baeumler, you say that Oeschey concerning the directives he had received from the guidance of justice tried to put them into practice. Are you aware of cases were Oeschey made efforts to have a sentence which through the guidance of jurisdiction had been laid down was turned into a more lenient sentence in favor of the defendant?
A I do not know of such cases, but it is possible that it did happen that the instructions from above after the trial had been held and the facts had been elicited appeared to severe to Oeschey.
Commission 111 Case 111
Q You then refer to individual cases. By way of an introduction I would like to ask you, are you of the opinion that in any of those cases the law was defeated?
A No.
Q That the decision was made against the law?
A No.
Q Now I am coming to the Strobel case. You criticize the point that Strobel, who was indicted for an offense against the malicious acts law, was sentenced as a dangerous habitual criminal, that in his case the previous convictions referred to a different sphere than his last offense for which Strobel was to be sentenced. Arc you of the opinion that in the case of Strobel the conditions for assuming that he was a dangerous habitual criminal did not obtain?
A No, I am of the opinion that those conditions did obtain.
Q Can you remember whether during the consultation on the jurisdiction of the Supreme Reich Court the question of the dangerous habitual criminal was discussed?
A Yes.
Q Dr. Baeumler, you have reread the files if the Strobel case. You knew that in the transcript on the second trial it says that the prosecutor verbally indicted Stroble for an offense against the malicious acts law; is that correct?
A Yes, that is correct.
Q You yourself played a part in arriving at the decision to suspend the trial, a decision which was made at the first trial, a decision which was made at the first trial. What was said in that decision to discontinue the trial?
AAs I recall, it was decided to discontinue the trial for the purpose of ascertaining further facts.
Q About what?
AAbout the question as to whether the conditions cf the dangerous habitual criminal did obtain.
Commission 111 Case 111
Q Do you know, Dr. Baeumler, that the Prosecution between the first and the second trial received an instruction to prosecute the defendant as a dangerous habitual criminal?
A Yes, I understand that from the files.
Q Well, Dr. Baeumler, are you of the opinion that the remark in the transcript about the second trial, according to which the prosecutor based his indictment only on Article 2 of the law against malicious acts, is correct?
A I should assume that that statement in the transcript is not correct. I am rather of the opinion but that I cannot say for certain that the indictment in accordance with the sentence which was asked for later was based on Article 20-A.
Q And Article 20-A is the article concerning what penalties?
A The penalties concerning the habitual dangerous criminals.
Q Dr. Baeumler, during your work at the special Court did you observe the records every now and again were not kept carefully?
A I can remember that every now and then corrections had to be made. I no longer remember details.
Q Now a last question concerning that case. When the first trial was discontinued to examine the question as to whether the defendant was a dangerous habitual criminal, and when furthermore between the first and the second trial the defendant for the purpose of his defense had a defense counsel appointed for him, was at the second trial on the part of the defendant or his defense counsel any doubt that for that trial the question was whether the defendant was to be sentenced as a dangerous habitual criminal?
A I am of the opinion that the defendant was in no doubt about that question.
Q And the defense counsel?
A I believe that the defense counsel had no doubts, either.
Q I am now coming to the Flurer case, Dr. Baeumler. Do you know Commission 111 Case 111 that in that case the prosecution from the very beginning intended to ask for the death sentence?
A I do not know.
Q Do you remember that the criminal, who was a homosexual, had committed his offenses exclusively against juveniles?
AAs far as I remember, yes.
Q Was it because of that that the crimes was considered particularly grave?
A Yes.
Q I am now coming to the Fischer case. I have no files about that case. During your interrogation about that case, witness, did the prosecution put any files to you?
A I cannot say.
Q Witness, we are concerned here with a case of selfmutilation. What was the mandatory penalty under the law for that crime?
A In principle under the extraordinary war order the death sentence was mandatory. In cases of lesser gravity the death sentence did not have to be pronounced.
Q I am now coning to the Becker case. You say, Dr. Baeumler, that the witnesses who appeared in that case, some women whom Becker had defrauded, that they were of a doubtful character and that therefore a more lenient sentence would have been advisable. Do you knew that Becker, quite apart from those marriage frauds, had also committed fraud concerning the war damage Office?
A Yes.
Q What was the offense which in the assessment and in the fixing of the penalty was decisive?
Commission 111 Case 111
A The decisive point was the fraud concerning the war damage office.
Q And now coming to the Friedchen case, in that case you criticise the point that the feeblemindedness of Friedchen had not been taken into consideration and you point out that Friedchen, during his previous offense, had been granted the more lenient punishment of Article 1512. You locked out at the files again, Dr. Baeumler, and can you state that two previous decisions had been made, in one case Friedchen was granted Article 1512, whereas in the other decision the application of that paragraph was not granted. Can you remember that?
A. Yes.
Q. And what was the decision of the medical expert on the state of mind of Friedchen in that case which you had to judge?
A. According to the statements in the sentence, the expert's opinion said that the defendant was completely responsible for his actions, and Article 51 Section 2 concerning a reduced responsibility did not apply. I am now of the opinion, and was so at the time as is evident from my statement, that the expert should have granted the application of Article 51-B. In the trial before the military court, Article 51 section 2 was granted to this defendant. The court then shared the views expressed in Dr. Bauer's expert opinion.
Q. Dr. Baeumler, I am now coming to the Katharine Meyer case: field post thefts--robbery of 500 field post packages. You state that Katharine Meyer had not stolen all the packages but had only removed certain articles from the packages and had then posted the packages; that is to say, that the contact between the homeland and the front had not been interrupted. Do you know Dr. Baeumler, that the jurisdiction at that time had always established another point of view concerning field post thefts to the effect that those thefts were designed to shake the willingness of the soldier on the front to fight?
A. That is possible, but I cannot remember that now.
Q. Do you remember that the extent of those thefts was very considerable?
A. In my recollection, the extent was very considerable.
Q. According to your knowledge of the jurisdiction, do you believe that another special court would have arrived at a different decision in the case?
MR. WOOLEYHAN: Just a moment please. I object to that question on the ground, that the witness cannot be expected to know how another special court would decide a case.
JUDGE BRAND: He may answer. I take it your question is in substance whether the sentence exceeded the average in other jurisdictions. He may answer that question.
BY DR. SCHUBERT:
Q. Will you give your answer?
A. According to the instructions which appeared in the judge's letters, and according to the jurisdiction of other special courts, I am inclined to take the view that another special court too, against my own opinion, would have arrived at the death sentence.
Q. I am now coming to the Pirner case Dr. Baeumler: the juvenile criminal. In that case, you point out that Pirner had been pronounced capable of improvement by the medical expert. In your recollection, was the decision based on the point that Pirner was perhaps no longer regarded as capable of improvement?
A. Two different sets of questions must be kept apart here. There is the question of the juvenile as a serious criminal and the question of the habitual dangerous criminal. Concerning the question of the juvenile dangerous criminal, it was assumed that he was such a criminal; whereas concerning the examination of the dangerous habitual criminal, it was left open whether he was capable of improvement.
Q. Do you remember that in that case the expert, Dr. Bauer, submitted a written expert opinion?
A. I can remember that.
Q. In your recollection, did Dr. Bauer take up the view that Pirner, concerning the offenses he had committed was 18 years old, was not to be identified with a person above 18?
Dr. Baeumler, did you understand my question?
A. I assumed that that was no question, but that it was just a statement made by you.
Q. Is it correct that that was mentioned in Dr. Bauer's expert opinion?
A. I can remember that.
Q. Do you also remember that the sentence made different statements?
A. The sentence was of the opinion that the defendant also concerning those offenses he had committed before he was 18 years old, had to be evaluated as person of 18 or above 18.
Q. Concerning the deviation of the sentence from the written opinion of the expert, Dr. Bauer, can you give an explanation?
A. I have to refer to my earlier written statement. It might perhaps be possible that the expert Bauer at the trial deviated from his written expert opinion.
Q. You consider that possible, Dr. Baeumler?
A. I cannot make any definite statements because the records do not mention that point. I think that theoretically that is possible.
Q. While you were working at the special court, did that court at any time depart from the oral or written expert opinion of the medical expert?
A. I cannot remember a case where the court deviated from that expert opinion.
Q. Only one more final question. Was the fact, or shall we say the legal assumption, that Pirner was a juvenile serious criminal, that concerning the offenses he committed before he was 18 he was to be evaluated in the same manner as a person above 18----were those considerations essential for the decision?
A. That depends probably upon the point whether the majority of those offenses were committed before he was 18 or after. As far as I remember, the majority of his crimes were committed after his 18th birthday; and as far as I can recollect, because of those offenses, that is to say in a continuous connection, that is legally one offense, it was for that that he was sentenced. So that the offenses committed before his 18th birthday, perhaps when the case was evaluated had the smaller share and were less decisive than those offenses which were committed after his 18th birthday.
Q. Witness, do you remember that all offenses concerning the period of time were all around Pirner's 18th birthday, either before or after?
A. The various dates of his crimes, I can no longer remember, but I believe it is correct that those crimes were committed shortly before or after the 18th birthday. I have to correct myself, shortly after he completed his 18th year.
Q. Now coming to the Schnaus case. You say Schnaus, who had stolen a sum of more than 100 marks from a widow which was a so-called gift for parents, of soldiers killed in action, you say that Schnaus had said that he had not known where the money came from. Do you know whether Schnaus said that at the trial too?
Commission III, Case III A.- I should assume so, but I cannot make any definite statement on that point.
Q.- Can you remember whether Schnaus knew the origin of the money when he used it?
A.- He know about it, because as far as I remember after the theft the widow told him about it.
Q.- Dr. Baeumler is it correct that the Schnaus case was one of the first, if not the first, cases on which you worked at the Special Court?
A.- As far as I know it was the first case in 1943; I had worked at the Special Court before -- in 1940 for two months.
Q.- Did you, when the Schnaus case was tried, have the necessary experience with the Special Court?
A.- No.
Q.- Well, Dr. Baeumler, you also mention the cases of foreigners. Can you remember cases where innocent foreigners were sentenced?
A.- No.
Q.- Do you remember a case where a sentenced Czech was acquitted by Oeschey at the re-trial?
A. I can remember such a case; the Czech was sentenced for offenses against the Malicious acts Law, on the basis of testimony given by a Czech who incriminated him under oath. Later on this man was tried for perjury, and the witness was punished for perjury. Then the prosecutor requested re-trial of the Czech who originally had been sentenced for offenses committed against the Malicious Acts Law. During the written proceedings the defendant was acquitted by the Special Court.
Q.- Was Oeschey the presiding judge?
A.- When he was acquitted, yes. Whether he was also the presiding judge when the Czech was sentenced I cannot remem Commission III, Case III ber.
Q.- Did the defendant receive compensation because he had been detained innocently?
A.- For the damages he had suffered from his arrest, and for the pay he had lost, he was compensated.
Q.- Dr. Baeumler, you say that Oeschey was very severe in his attitude toward Poles; in 1943, or as from 1943, you worked with the Special Court. Did you, with Oeschey, witness many cases against Poles?
A.- No. As far as I remember there was only one case, which, as far as I know, was discontinued; but I don't know for certain.
A.- Therefore, then you cannot say for certain that Poles were perhaps sentenced to death?
A.- I don't remember that, but I must emphasize that that attitude on the part of Oeschey was also evident from other statements by Oeschey and in this case, too, it was emphasized.
Q.- Dr. Baeumler, I am now coming to the last case -Berth, Schwarz and five other persons, who had committed theft, concerning parcels from the American Red Cress. In that case, apparently, you criticized the point that the sentence had been too lenient.
A.- I did not understand you.
Q.- I am now coming to the case of Berth, Schwarz and five other persons. That was a theft of American Red Cross parcels. It appears that you are of the view that the sentence passed on the defendants was too lenient. Do you in this case consider the death sentence correct?
A.- I said that Oeschey's opinion that the case of theft and squandering the loot in the black market was highly ob Commission III, Case III jectionable, and I shared that view of Oeschey.
I am of the pinion that the point was -- that the main point was these things had been stolen from The Red Cross parcels; as to the death sentence being advisable in this case, I did not say so, and I am still of the opinion that the death sentence was not necessary, but that the offenders should have been sentenced as enemies of the people -- just as those persons who had stolen packages in the field. The question as to whether the defendants were sentenced at the time as public enemies I can no longer answer, and when I deposed my written statement I did not do so either.
Q.- Dr. Baeumler, do you know that the indictment concerning the four main defendants in that case quoted Article IV of the Law Against Public Enemies?
A.- I do not remember, but I think it is possible.
Q.- Do you also think it possible -- as unfortunately we no longer have the sentences -- do you think it possible that the defendants were sentenced as public enemies just because the theft concerned gifts from the American Red Cross?
A.- That is possible Dr. Baeumler, do you perhaps remember that the crime at the trial appeared of lesser gravity that had been evident from the indictment?
A.- That is possible.
DR. SCHUBERT: I have concluded my cross examination.
EXAMINATION BY DR. KOESSL: (Attorney for Defendant Rothaug) Q.- Witness, in your affidavit you also criticized Rothaug' s manner of conducting trials.
Through Rothaug's manner of conducting a trial, did the facts become twisted or distorted?
Commission III, Case III A.- This question would answer in the negative.
Q.- The facts which had to be established for sentencing the defendant?
A.- Kindly repeat your question.
Q.- Did Rothaug's manner of conducting a trial twist or falsify the facts, or were the facts established truthfully, and was the sentenced based upon them?
A.- The facts were established beyond all doubt.
Q.- Did you observe that Rothaug twisted legal provisions and defeated the law?
A.- No.
DR. KOESSL, I have no further questions.
MR. WOOLEYHAN: There is no re-direct, Your Honor.
JUDGE BRAND: The witness may be excused.
Dr. HUGO SUCHOMEL, a witness, took the stand and testified as follows:
BY JUDGE HARDING:
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.
EXAMINATION BY DR. KUBUSCHOK: (Attorney for Defendants Von Ammon and Schlegelberger) Q.- Witness, you have deposed an affidavit, dated 21 February 1947 -
JUDGE BRAND: Will you inquire of his name, and identify the document.
DR. KUBUSCHOK:NG-2253, Exhibit 419.