It is possible that it even demanded the final decisions in these matters, and that may have been the cause because Dr. Schlegelberger could never accept anything of that kind. That controversy assumed great severity because Reichsleiter Bouhler sent copies of his very aggressive letters to important agencies of the Party, and the State, such as: Lammers, Himmler, Bormann, and others.
Q Did Schlegelberger actually have the position of a Reich Minister when he assumed office; when he was put in charge of the Ministry?
A No, Dr. Schlegelberger, by assuming that office did not assume the position of a Reich Minister. As far as the rank was concerned, he was Under-Secretary, Staatssekretaer; even after he was put officially in charge of affairs in the Ministry he also kept his department, that is his Staatssecretariat; that was an intermediary solution anyway; that he was put in charge of affairs until the various political agencies could agree as to who the new new Reich Minister of Justice would be. Dr. Schlegelberger's position of course, was very difficult because he had to work together with Dr. Freisler who had very good connections with the Party, which Schlegelberger, of course, did not have.
Q Did Schlegelberger attend cabinet meetings during that period or did he have other possibilities to report to Hitler directly?
A Cabinet meetings no longer took place. The possibility to get to Hitler personally did not exist for Dr. Schlegelberger. I can remember that Dr. Schlegelberger just once during his entire period in office saw Hitler personally. That was at the time of his dismissal when he was ordered, in order to receive his approval of leave, to see him at his headquarters.
Q What possibility did Schlegelberger have in order to pass suggestions and proposals ton to Hitler?
A Since Schlegelberger could not use any channel through the Party, he had no alternative but to Contact Dr. Lammers as far as the natters for the Reich Cabinet were concerned, that is to say, natters where Hitler was concerned in his position as Reich Chancellor; as for Hitler's capacity as Chief of State, Dr. Schlegelberger turned to Meissner, the Chief of the Presidial Chancellery, and that was particularly in cases of clemency pleas, because that right was reserved for Hitler as the Chief of State.
Q How were these clemency natters handled? Would you please refer only to cases with the death sentence?
A Death sentence cases were handled with special care and thoroughness in the Ministry of Justice. When I came into the Ministry of Justice I was told that it was the custom of the Ministry of Justice that a Referent who was not perfectly informed about the facts in a case dealing with a death sentence would be removed at once from the Ministry of Justice. The handling of these matters was the following:
The Referent put his opinion down in writing; the same was then done by the sub-department head, the department head, and the Under-Secretary. These endorsements were submitted to the Minister for his decision, together with a copy of the sentence and the opinion of the Court and the Prosecutor concerning the question of clemency. The Minister then made his decision on the basis of that material. If he had any doubts, he ordered the department to report, and that report was made in the presence of all the persons I have mentioned.
With Dr. Schlegelberger it occasionally occurred that he personally went through all the files, and, in addition, called the department concerned to report, in order to be sure that the matter had been dealt with exhaustively.
Q What was Dr. Schlegelberger's attitude when he dealt with clemency matters?
A The Referent in clemency matters know that if he submitted a well-founded clemency plea to Dr. Schlegelberger, he could expect support from Dr. Schlegelberger.
I should like to say that Dr. Schlegelberger's attitude was sympathetic towards clemency. He was quite prepared, on his part, to submit a. proposal for clemency to Hitler, and also in cases where he knew that he would expose himself by so doing to attacks of a political nature. It impressed me particularly that in all cases of doubt which has been submitted, and which he passed on through Under-Secretary Meissner to have them reported to Hitler, Schlegelberger got in direct contact with Meissner and referred to those points which, in his opinion, were particularly essential and which he expected would make an impression of a special nature on Hitler.
His tactics in clemency matters played an important role because, as a matter of experience, one knew that Hitler was more receptive to certain elements, such as activities as a soldier, and so on.
I might also say that Dr. Schlegelberger frequently had the satisfaction, in such cases of doubt, when the decision went according to hie suggestions and a clemency decision cane back from Meissner.
Q Do you happen to know of individual cases in clemency matters which you consider worth mentioning before the Tribunal?
A The Tribunal has asked me to be very brief, and therefore I ask to be permitted to mention only one case. That case was such an extraordinary one that, in spite of the long tine which has since passed. I still remember it.
A Polish countess was sentenced to death for arson. She had been the owner of a large Polish estate, and when the Germans occupied that territory she was sent into the building for domestic servants on her estate, whereas the residential building was inhabited by the German manager, who bad been appointed by the German Army or civilian agencies. One night the entire estate went up in flames. The opinion stated that the Polish woman had started the fire.
As for facts, the sentence was based solely on the testimony of a niece of the owner, a child who was twelve years old, who lived in the same building. She had stated, as a witness, that her aunt secretly expressed her disapproval and her hatred of the German Administration and had also manifested her intention to put fire to the entire estate.
Dr. Schlegelberger refused definitely to order the execution of the death sentence in this case, and of course he would have been in a position to do so without consulting Hitler or Meissner. He said that it was quite impossible to base the sentence on the testimony of a 12-year-old child, particularly when it was the case of a girl of 12 years whose statements in cases of arson, as experience shows, have to be met with great caution. He ordered me to look at the files and to determine from the files how, where, and through whom that little girl - the niece - had been questioned for the first time. I found a police transcript in the files, and since this transcript still left the possibility open that the child might have been induced to make these statements by leading questions on the part of the police official, Schlegelberger submitted the whole case, with a plea for clemency, to the Presidial Chancellery. He also had a long conversation with Meissner concerning that case. The Polish woman was pardoned, and was given a term in prison.
I still remember the satisfaction which Schlegelberger displayed when I submitted to him, on the occasion of my daily report, the decision from Meissner in this case. Later I was informed that doubts had arisen concerning the accuracy of the testimony of that little girl and that the Administration of Justice had initiated proceedings for a re-trial. In that re-trial I was told that the woman was finally acquitted. That is what I was told, I have never read that sentence.
Q Do you know anything about transfers of condemned persons to the police, or to the Gestapo?
A I know that it frequently occurred that Hitler gave orders to the police to call for people who had been sentenced to prison terms. To be sure, it was an order from Hitler directed to the police to the effect that the police had to take such and. such a man into their custody. These orders had rather short limits. As a rule, there was only a time limit of 24 hours before execution by the police, after which the police had to report that it had been executed.
These transfers, as far as I can remember, took place only during the war.
Q Do you know whether Minister Guertner did anything against these transfers?
A Yes; I know that Dr. Guertner - and I happen to know this from Dr. Schlegelberger, who told me about it once -- Dr. Guertner got in touch with Lammers and pointed out that these transfers were untenable and could not be accepted by the Administration of Justice.
The success, however, was not very large. Dr. Lammers on that occasion is said to have told Dr. Guertner that Hitler had stated that the courts could not stand up to the special requirements of the war, and that therefore these transfers would have to continue.
THE PRESIDENT: The hour has arrived for our morning recess of 15 minutes.
(A recess was taken.)
Court No. III, Case No. 3.
THE MARSHAL: The Tribunal is again in session.
MR. LA FOLLETTE: If Your Honor, please, may I address the Tribunal for a minute on a purely practical matter; and I have no quarrel at all, and I am sure that the sergeant believes he is following orders in not allowing Miss Arbuthnot, who is of counsel, when she desires to come into the courtroom with a portfolio and a bag. There is a rule, I think, against spectators bringing bags in, but I don't think that applies to attorneys either for the prosecution or the defense. The sergeant at the door feels that he must ask her to remove them. I don't believe he is informed as to actually what the Tribunal desires, or the difference between the members of counsel and the mere visitors.
THE PRESIDENT: The Tribunal knows that Miss Arbuthnot is on the Legal staff for the prosecution, and she is entitled to bring into the courtroom such papers or recepticles as may be necessary in connection with her work as counsel.
MR. LA FOLLETTE: Thank you, Your Honor. May I say again that I am not quarreling with the sergeant, but I just wanted him so advised.
THE PRESIDENT: He is so advised. You may proceed.
BY DR. KUBUSCHOK:
Q Did the intervention of Guertner via Lammers to Hitler not reach at least the one thing, namely, that information about having given orders to the police was sent to the Ministry of Justice?
A Yes. I know that these representations made by Guertner had that success, that from that time on in every individual case when such a transfer had been ordered, the Ministry of Justice was informed about that.
Q What did Guertner believe that he could have achieved for having that information handed on?
A Dr. Guertner did not speak to me about this, but from the conferences which Dr. Schlegelberger had with me, I found out the following about the motives of Dr. Guertner. In accordance and the ex Court No. III, Case No. 3.perience of the facts which Hitler received, they were always anonymous channels by which such an application was brought to Hitler.
Wherefore I say, the facts were incorrect, at least, they were strong distorted; and Dr. Guertner probably believed that by appropriate reporting to Hitler, namely, by telling him the actual facts, especially the reasons for which the court passed the penalty which had condemned the persons to a penitentiary sentence, or at least some kind of a prison term. Guertner believed if he had Hitler informed of the correct facts in the case that by those means he justified the sentence and could have the order for transfer withdrawn.
Q Was all of that possible within a twenty-four hour period?
A That was in most cases, at least, entirely impossible to achieve that within 24 hours. For in most cases they were not cases which had been tried in Berlin, but which had occurred somewhere within the territory of the Reich.
Q If Hitler now did not withdraw the order for the Ministry of Justice, did there, under those circumstances, exist any possibility at all to prevent the transfer to the police?
A Dr. Schlegelberger frequently discussed that question, and I believe that he actually had no possibility to cause -- let us assume the case that he would not have recognized this order that the police had received. In that case, no doubt existed that the police, if necessity existed, would have enforced this Fuehrer Order by force and would have broken any resistance.
Q Could you report anything about the events in the Ministry as soon as a transfer order came to the Ministry?
A The transfer order did not come to the Ministry, but rather the information that such a transfer order had been given to the police; and this information regularly came to Dr. Joel or one of his assistants. Dr. Joel or his assistant then came to me immediately, and I had the following instruction from the Under-Secretary which I had to follow in such cases. The entire plan of work for the day which had been de Court No. III, Case No. 3.termined in the morning was interrupted immediately.
The reports of the departments which had been set for the certain hours were immediately cancelled by me. I postponed visitors for a later time. Men of Dr. Schlegelberger's department had to report to him. I went to his office and reported the facts to him briefly, namely, that Dr. Joel or his assistant wanted to see him in such a matter. Thereupon, those who were present were immediately dismissed from Schlegelberger's presence and Joel came to Dr. Schlegelberger to report to him.
Q Now, what was the activity in detail that began now?
A I said already that Dr. Guertner and the same applies also to Dr. Schlegelberger, when he became acting Minister and had to take care of the Ministry of Justice and such. They tried first of all to find out the true facts; therefore, the files were immediately ordered to be brought to the Ministry of Justice. The files were not in Berlin, but somewhere else. It was ordered by telephone and a courier immediately brought the files to the Ministry in Berlin, for one had to gain time above all. Dr. Schlegelberger then commissioned Dr. Joel to telephone the police and other offices in order to extend the time limit. Dr. Joel, who in those cases evidenced particular activity, was then in the next hours engaged in a feverish activity in order to have this time limit extended. In between, he currently informed me or the Under-Secretary about whether or what he had succeeded in doing. If the extension of time had been achieved, if the true facts in the case had been determined, then immediately an extensive written report was sent to Lammers or Schaub with a request to submit it to Hitler immediately and to see to it that the transfer was withdrawn.
I already mentioned here that Dr. Schlegelberger considered especially elements which he expected to be especially effective with Hitler. I can still remember one case in which the report which Dr. Schlegelberger made it was stated that the person concerned, according to the story, had done his duty as a soldier during the First World War and had been wounded at Verdun.
The battle of Verdun was mentioned because Hitler was supposed to have fought at Verdun.
Q. What was Schlegelberger's attitude in regard to the treatment of Poles in German criminal courts?
A. Schlegelberger concerned himself with criminal cases against Poles only after he took the affairs of the Ministry in 1941. At that time the first penal decree against Poles had already been issued, but at that time considerations were already pending and drafts existed already for a change in these penal decree against Poles. Schlegelberger tried to influence Freisler who was the decisive person in these matters in a moderating manner.
Q. Do you know whether Schlegelberger influenced the judges in the Eastern territories to the effect that in the trials against Poles and Jews they apply a just trial?
A. I know that at the meetings of the General Public Prosecutors and Presidents of the District Courts of Appeals in Berlin,-such meetings took place every few months,- that on such occasions the officials from the Eastern Territories, in particular, were requested by Schlegelberger to admonish the judges in determing the facts in the cases, in their sentences regarding Poles and Jews, to do so with the same care and conscentiousness as they were used to doing with Germans; and that repeatedly Schlegelberger, - I, myself, was a witness, of these impressive admonishments - stated that in any case condemmations were not allowed to be supported only by a mere suspicion, and on these occasions he also stated that such a sentence by which he had to suppose that it was based on a suspicion, would be changed by him, by means of a clemency procedure. I also know that in the same sense on the occasion of a visit in East Prussia, he spoke to to District Court President, Funk, in whose district the Poles and Jews were especially numerous.
Q. How did Schlegelberger handle the clemency questions in regard to Poles and Jews?
A. I can answer that very briefly. I mentioned before the case of the Polish woman who was condemned to death, and this showed the practice that Dr. Schlegelberger followed:
That he never made a difference between Jews and Poles on the one side and Germans on the other hand.
Q. Did Schlegelberger, in the course of years, in your presence, mention that he intended to resign?
A. Dr. Schlegelberger expressed such intentions of resigning on the occasion of Dr. Guertner's death. He discussed the question as to whether when the question would arise he should continue to head the Ministry of Justice as acting minister; he had serious misgivings. -
THE PRESIDENT: (Interposing): The question, Mr. Witness, was a very clear and very simple one; whether he frequently discussed with you the matter of resignation. You can answer as brief as you can. Did he frequently discuss the matter of resignation with you?
A. Yes, your Honor, yes, he discussed it with me.
THE PRESIDENT: Alright. Ask another question.
Q. What reason did he state for his remaining in office?
A. He feared that if he would resign the Ministry of Justice would be handed over to an outspoken member and then serious intervention with the independence of the judges, and in the administration of justice would occur.
DR. KUBOSCHOK: That concludes my question on behalf of the defendant Schlegelberger.
Later on, I shall ask a few questions on behalf of the defendant von Ammon.
BY DR. WANDSCHNEIDER:
Your Honor, before examining the witness, may I address the Court with a brief remark and a brief question which refers to the examination. I have no intention to conduct an endless examination. I believe that the remarks of the President in regard to the brief formulation in the Schlegelberger case essentially was based on the fact that, in part, evidence had already been discussed by other witnesses. In my case this is not so because this is the first witness; therefore, I would be grateful to the Court if it would permit me to ask for short concrete examples; of course, understanding that the Court may intervene in individual cases.
May I ask the court to begin my examination of the witness
Q. Dr. Gramm, when did you know Dr. Rothenberger?
A. I knew Dr. Rothenberger since 1931, in the fall of 1931; at that time I was Assessor with the Public Prosecution in Hamburg. I was at that time transferred to Hamburg Ministry of Justice. Dr. Rothenberger was, at that time, Oberregierungsrat, and I made his acquaintance there. I was also his assistant there.
Q. In what capacity were you working there at the time under Dr. Rothenberger?
A. Under Dr. Rothenberger, I worked on civil cases especially under his guidance I had to organize the civil trials by or against the Hamburg Senate.
Q. What was Dr. Rothenberger's task at that time?
A. Dr. Rothenberger was Referent for civil cases in the Hamburg Ministry of Justice.
Q. Can you tell us something about his reputation at the time?
A. The administration of justice in the Ministry of Justice in Hamburg was a very small office. It consisted of only three high officials. It had a very high reputation from a technical point of view. Dr. Rothenberger was known as a recognized efficient and experienced expert in the field of civil law.
Q. Did Dr. Rothenberger, at that time, do legal research?
A. I know that Dr. Rothenberger wrote articles about Hamburg's private law in a Hamburg legal journal, and published them in the journal.
Q. Can you say something about the character of the repetitorium which Dr. Rothenberger published?
A. Dr. Rothenberger had a compiled a repititorium, to prepare young law students and referenders for their examinations, And these courses that Dr. Rothenberger conducted had an especially good reputation in Hamburg.
Q. Dr. Gramm, do you know anything about the fact that before 1933 Dr. Rothenberger was supposed to become Reichsgerichtsrat at Leipzig?
A. I know that in 1932, he was supposed to be appointed Reichsgerichtsrat.
Q. Did this come about?
A. No, I heard that the Reich Supreme Court was opposed to such an appointment because Dr. Rothenberger was too young.
Q. Is it correct that in 1933 Dr. Rothenberger became your legal chief?
A. Dr. Rothenberger in 1933 returned to the Hamburg Ministry of Justice.
In 1932 he had left it, and in 1933 he returned, and became Chief of the Hamburg Ministry of Justice and, therefore, my new chief.
Q. Immediately after the seizure of power by the Nazis, can you say something about the difficulties which Dr. Rothenberger had because Party political bigwigs, in brief, were forced upon him in his office?
A. In 1933 Landsgerichtsdirector Rueter appeared in the Administration in Hamburg. He was strongly bound to the Party and especially devoted to the Party. I also know that, as chief of the Hamburg Ministry of Justice, Rothenberger had with a certain Laatz. He was a man who, as far as I know, in his civilian profession, had been a tinsmith. Now he was supposed to be in charge of the Hamburg public prosecution. This man too was very much under the influence of the Party.
Q. May I first return briefly to the case of Reuter and ask you to tell me what Dr. Rothenberger had initialed in the Reuter case?
A. I am not very well informed about this, because I was not told about these details; they were personnel matters which were not in my technical field. However, I did hear that Dr. Rothenberger tried to get rid of this man especially and did not want to work with him. When, soon after that, Rueter was transferred somewhere else and disappeared, I thought to myself that it had probably been done on Dr. Rothenberger's initiative.
Q. Did Laatz, the director of the prison, remain in his position afterwards or not?
A. I believe I remember that I heard this. That is to say, I was no longer in Hamburg myself at the time and I cannot make definite statements because so much time has elapsed in the interim. However, I seem to remember that Laatz too was removed, and I assume that this too was done on Dr. Rothenberger's initiative.
Q. Dr. Gramm, can you now tell us something about Rothenberger's attitude in Hamburg in regard to the Administration of Justice?
A. According to his origin, Rothenberger was a man who was opposed to intervention from offices that were not in the Administration of Justice, and he disapproved of such intervention.
I also know that in the beginning, when I was still there with him and had an insight into conditions, he addressed the Gauleiter and Reichsstatthalter with a special request in the direction of preventing interference in the Administration of Justice; that is, not to let it occur at all.
Q. Do you know that such attempts at influence from offices outside the Administration of Justice were attempted in clemency questions? And please describe how Dr. Rothenberger acted.
A. Clemency questions are especially suitable, as we know from experience, for interference by political offices, and there were attempts to try to influence decisions. From the close connection which we had in the Hamburg Administration of Justice, I can testify that Dr. Rothenberger tried to eliminate these possibilities of interference from the very beginning, in all such cases which involved the danger of political intervention, by going directly to the Reichsstatthalter and Gau Leader Kaufmann in order to get over his point of view and that of the Administration of Justice.
Q. Can you please state according to what points of view Dr. Rothenberger proceeded in these clemency cases?
A. They were the usual points of view which normally have to be considered in every clemency proceeding, or rather, I would like to say in every normal clemency proceeding, or rather, I would like to say in every normal clemency proceeding. Thus the elements of which I spoke, in favor of the defendant, were considered; the human point of view was especially emphasized in such decisions.
Q. That is understood for normal conditions, it is obvious. Therefore, I attach more importance to the following question, namely: How did Dr. Rothenberger act if the punishment of Party members, even old Party members, was concerned -- that is, in clemency questions?
A. He applied the same practice there which I just described; that is, he did not make political considerations the basis of his decision. At least, I myself did not observe that he pronounced a pardon for political reasons.
Q. In addition to that, do you also know that he insisted that in the case of old Party members their penalties had to be observed completely?
A. I don't know anything about that. I ask you also to consider that approximately 15 years have elapsed since that time.
Q. Thank you.
Can you state, briefly, something about the relationship between Reicstatthalter Kaufmann and Dr. Rothenberger?
A. I have already said that it was Dr. Rothenberger's endeavor to go directly to Reichsstatthalter and Gau Leader Kaufmann in order to influence him. During the time when I was still in Hamburg -- that is, until the end of 1934 -- I had an opportunity to observe that Dr. Rothenberger had exercised considerable influence upon Gauleiter Kaufmann. He may have succeeded in doing so because Kaufmann -- I didn't know him personally -- was generally considered to be a man who was amenable to quiet and reasonable arguments, a man with whom one could sit down at a table, and who was intelligent enough to let other people speak to.
Q. According to your experience, was the good understanding that existed between the Reichsstatthalter and Dr. Rothenberger achieved at the cost of the Administration of Justice?
A. I never had that impression.
Q. For example, did you have the following experience or can you say that the opposite was true, namely that any attempts were made on the part of the Party to influence pending trials?
A. I don't know anything about such attempts. I remember only one case in which a pending trial was concerned in which the Gau Leader and Reichstatthalter wanted to interfere, but no political considerations were decisive here, only purely human considerations.
It was a non-political crime, the murder of -
Q. (Interposing) We do not have to know the details about that.
How long were you active in Hamburg under Dr. Rothenberger?
A. I left at the end of 1934 because, as I mentioned, on 2 January 1935 I began my service in the Ministry of Justice in Berlin.
Q. At the time that Dr. Rothenberger sent you to Berlin, were you a member of the Nazi Party?
A. No.
Q. Did Dr. Rothenberger ever urge you to enter the Party?
A. No.
Q. Or even ask you to?
A. No.
Q. Why did Dr. Rothenberger then send you to Berlin, in your opinion?
A. Experts were asked for by Berlin, namely, experts who were able to give exhaustive information about the conditions of the Administration of Justice in their home territories. Special attention was supposed to be paid to the technical selection.
Q. Do you believe that your examination played an important part in your transfer to Berlin?
A. I suppose so.
Q. What kind of an examination did you take?
A. I made a very good examination.
Q. Thank you.
Dr. Gramm, we now come to the time you were in Berlin. I shall go in medias res -- I shall go to the heart of the matter immediately.
There were regular meetings of the chief presidents in Berlin. Did you regularly take part in these "Chef Praesidenten" meetings?
A. Yes, I did.
Q Can you especially remember one such meeting from 1939 in which attacks on the part of the Schwarze Corps were discussed? That is the newspaper.
AAbout the Journal, the Schwarze Corps, there were frequent discussions at the meetings of the chief presidents because, as I already remarked before, that was one of the main worries of the Ministry of Justice.
Q I want to remind you of one special meeting at which Dr. Rothenberger made lengthy statements to cause the Reich Ministry of Justice to undertake certain steps. Can you remember that particular meeting?
A I know that on the occasion of one or several meetings I don't remember any more exactly -- Dr. Rothenberger also made extensive statements about this problem and expressed his worries about this in regard to the Ministry of Justice.
Q Did he do this in an especially emphatic manner so that he can be described as the main initiator of these endeavors?
A In these discussions, Dr. Rothenberger expressed his worries especially emphatically and thus in a certain sense became the discussion leader of the rest of the presidents. But, please, do not understand this to mean that he was the only one to speak about this problem. But he was, as I said, one of those whose statements were especially memorable.
Q I do not want to ask you about the other subjects of these meetings in order to avoid repetition. Therefore, I want to summarize whether it is correct that the correction of sentences by the police, transfers to the police -- in short, whether it was a question of all those measures which had for long been the sign of the interference of the police into the Administration of Justice -is it correct that all these matters, in all their different forms, were the main worry of the chief presidents?
A It was not only the main worry of the chief presidents, it was the main worry of the Minister of Justice.