The institutions themselves did not change. Therefore, the people actually remained in the same institutions which now simple had the designation Stammlager, and no longer were called prisons. Concerning the technical side, that transfer into the penal administration of a camp had no significance, but as far as the records were concerned, it said there now no longer sentenced to prison term but to a penal camp.
Q. Yes; and you interpreted Exhibit 266 which Dr. Tipp handed you, NG-598, which was a letter of the 8th of March 1943, addressed to-
Am I right, Dr. Tipp? Listen to this please-- addressed to the defendant Barnickel from a commander of a camp in Eich/Hesse Is that correct?
Q. (Continuing) You stated that that effected a transfer of the control of the Pole and that there was a very technical legal question involved as to whether the Pole would be returned to the Ministry of Justice after the war.
What would happen if the Pole died in the camp and never got back to the Ministry of Justice after the war?
A. Well, it was this way.
DR. TIPP: Mr. President, I object to this question as to what world have happened if a man died. That is no question the witness has to answer. Mr. Prosecutor knows that just as well as the Court and all of us in this room.
THE PRESIDENT: The objection is sustained.
The letter, according to our notes, Mr. La Follette, was signed by the defendant Barnickel and not written to him. Perhaps we are in error, but our notes indicate that.
MR. LA FOLLETTE: I am glad to note that. My notes indicated that it was addressed to him by a man in Hesse, but I apparently wrote mine hurriedly. Was it to Barnickel or from Barnickel?
(Dr. Tipp and Mr. La Fottette conferred)
MR. LA FOLLETTE: I am mistaken.
BY MR. LA FOLLETTE:
Q. The Ministry of Justice could exercise no control over this Pole until after he was sent back from the camp; that is correct, isn't it?
A. Yes; it was this way. The moment the prisoner was transferred, he was outside of the control of the Ministry of Justice.
Then the Chief Reich Prosecutor said; "On the question as to how the term has to be counted, I should like to postpone that until he comes back under the control of the Administration of Justice, because as long as he is not under the control of the Administration of Justice, that would have no purpose." However, if he says, in the letter to Camp Eich, "I should like to reconsider the question later", then that, in my opinion, reveals that he believes that later the prisoner mighty be re-transferred to continue serving his term in that institution under the Administration of Justice, that is, after the war.
Q. Yes. Now, if a Pole were sentenced to death by the People's Court, who was officially responsible for executing the sentence?
A. For the execution of the sentence? Well, the execution of death sentences was handled in Department IV of the Ministry of Justice and in Department V; and clemency matters in the case of Poles or sentences against Poles were in part handled by the Gauleiters as far as I know, not having had anything to do with that subject in particular.
Q. And the order of execution under the statute which Dr. Tipp read to you came from the prosecutor's office attached to the particular court; in this case it would be the Reich Prosecutor in charge of prosecutions at the People's Court, would it not?
A. Yes, in that case it was ordered that the person should no longer serve his term in a penitentiary but in a severe penal camp. Then the institution gave the information that an interruption of the term had to take place upon a directive from the Ministry. That was the second document.
Q. Apparently I did not make myself clear. In the case of a death sentence by the People's Court, who ordered the execu tion, the defendant Lautz?
A. Yes, yes, That was the Reich prosecution.
MR. LA FOLLETTE: That is all.
BY THE PRESIDENT:
Q. Mr. Witness, you referred to a distinction between punishment and severe punishment in various institutions. What was the difference in the character of severe punishment from the character of punishment?
A. For severe punishment, severe penalty camps, it was intended that the prisoners should be used for difficult work. It was intended that those prisoners who had to serve severe punishment should do especially hard work, possibly under worse health conditions, for instance, work in humid areas in the fields, and so on. That was the practical difference, that the more severe punishment should be undergone by way of more difficult work. In practice, however, that distinction was hardly ever applied. In fact, sometimes both types of prisoners were kept in the same institutions, that is, those who had been sentenced to penal camps and those who had been sentenced to severe penal camps. It was intended to make a difference, but in practice these differences hardly ever arose.
Q. What were the camps which were intended for the severe punishment? What were the names of them?
A. These camps all had the same designation. According to the decree concerning the Poles they were called Stammlager, basic camps. There was one branch of a large institution where this hard work had to be done and where prisoners were used who had sentences for hard punishment. That was the intention, but in practice this could not be carried out to any large extent because the allocation of prisoners had to be made on the basis of their capability to work and their qualifications and therefore that other question, as to whether they were sentenced to normal punishment or severe punishment, could not be taken into account to the fullest extent.
THE PRESIDENT: I take it that the examination is closed.
Do you desire to conduct a re-direct examination?
DR. GRUBE: Yes.
THE PRESIDENT: You will limit it to the scope of the questions that were asked on cross-examination?
DR. GRUBE: Yes. I should like to follow up the last question put by the prosecutor as to who was competent to order the execution of death sentences.
BY DR. GRUBE:
Q. Witness, is it correct that in the case of every death sentence the transcript of the sessions had to be sent to the Ministry of Justice?
A. Yes, is ixplicitly stated in the code of criminal procedure that an execution was only possible after a decision had been reached on the clemency question. First one had to decide whether one should execute or not, and that question, of course, was decided by the Ministry of Justice.
Q. Witness, you just referred to a provision. I will read to you paragraph 453 of Code of Criminal Procedure: "Death sentences do not need any confirmation for their execution. The execution, however, can only take place after the decision of the competent authorities has been made that they do not want to make use of the right for clemency."
That provision is number 453. Is that the one you referred to?
A. Yes, that is the one I mean.
Q. One other question, witness. Would you explain to the Tribunal who, in the case of death sentence, was competent to decide whether the right for clemency applied or not?
A. That was, in principle, the supreme office in the State the head of the State, and during the war that was delegated to the Minister of Justice. Before the war the head of the State had to decide whether the death sentence was to be executed or not.
Q. But under no circumstances was the Chief Reich Prosecutor that competent authority?
A. No.
Q. Consequently, according to Paragraph 453, the death sentence could only be executed if Hitler, that is to say, the Ministry of Justice, had explicitly stated that they did not want to make use of the right for clemency?
A. Yes; there had to be a decision on the part of the Ministry of Justice, and the instruction that the death sentence had to be executed.
Q. Witness, do you happen to know that together with that decision on the part of Hitler or the Ministry of Justice, according to which no use would be made of the right for clemency, at the same time or immediately thereafter the order for execution from the Ministry of Justice came to the various prosecutions, that is to say, to the Chief Reich Prosecutions?
A. Yes; he was charged by the Ministry of Justice with the execution.
Q. That is to say, the Ministry of Justice gave the order for the execution?
A. Yes, it gave the order for the execution and sent that order to the Chief Reich Prosecutor for execution.
Q. The activity of the Chief Reich Prosecutor or Chief Prosecutor then consisted soley in executing the order which was sent to him by the Ministry, is that correct, witness?
A. Well, this is the way it happened. The Chief Reich Prosecutor for carrying out the execution did not have any right to decision on his part.
Q. Do you happen to know of one case, Witness, where the chief Reich Prosecutor on his own ordered the execution of a death sentence?
A. He could not do that, according to the provision.
DR. GRUBE: Thank you. I have no further questions.
MR. LA FOLLETTE: I would like to ask one question now if I may.
THE PRESIDENT: We will hear your question and then rule on it.
RECROSS EXAMINATION BY MR. LA FOLLETTE:
Q. Witness, I would like to know definitely whether the Ministry of Justice, the Chief Public Prosecutor at the People's Court or this man that you describe as a Rechtspfleger made the final decision. I have heard you say three different things and I want to know which it is.
A. In case of the death sentence, the Rechtspfleger could not make any decision. Only in case of other sentences. In the case of the death sentence he could not make any decisions.
THE PRESIDENT: Is there any redirect examination? It will be limited to matters covered by the previous cross examination.
DR. TIPP: Mr. President, it was just pointed out to me that concerning a document which I put to the witness there was an error when Mr. LaFollette discussed it. Maybe it was just a misunderstanding. It is document NG 614, Exhibit 267. From that volume I put to the witness a letter from 15 January 1943. It has the heading Office "Stammlager Schiratz" and is addressed to the Chief Reich Prosecutor with the People's Court. The text of that letter is "Upon directive by the Reichsminister of Justice the execution of sentence on the above mentioned prisoner is to be interrupted.
He was handed over today to the Gestapo Litzmannstadt for the purpose of transfer to the concentration camp Auschwitz. I understood from the statements made by Mr. LaFollette that he assumed that Dr. Barnickel with this letter had ordered the transfer of the sentenced Pole through the Gestapo to the concentration camp. May I clarify that question with the assistance of the witness? I have discussed the document already with the witness.
REDIRECT EXAMINATION BY DR. TIPP:
Q. Dr. Hecker, is it correct that according to the contents of this letter the transfer to the Gestapo was carried out by the camp without Dr. Barnickel having had anything to do with it before it actually took place?
A. Barnickel had ordered the transfer into a severe penal camp, but not the interruption. The interruption, about that he was informed.
DR. TIPP: Thank you. Thank you, I have no further questions.
THE PRESIDENT: The witness is excused.
MR. LA FOLLETTE: I think we can finish the witness Miethsam in ten minutes if the Court will hear him.
THE PRESIDENT: You have ten minutes. You may call him.
WILHEIM MIETHSAM, a witness, took the stand and testified as follows:
JUDGE BLAIR: Hold up your right hand and be sworn.
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE BLAIR: You may be seated.
CROSS-EXAMINATION BY MR. WOOLEYHAN:
Q. Dr. Miethsam, in your affidavit, which is Schlegelberger Exhibit No. 74 before this Tribunal, you stated that from 1938 until the end of the war you were a personnel officer in the Ministry of Justice in Berlin for judges and prosecutors of the Bavarian Court of Appeals districts and you also stated that such personnel matters as those in the Bavarian area were under the over-all control of the defendant Schlegelberger as to matters of personnel.
Now in connection with your personnel work concerning the Bavarian area and judges and prosecutors in that area do you know what year Oswald Rothaug was appointed president of the Nuremberg Special Court?
A. I know that Roghaug in the soring of 1937 came to Nuremberg as director of the district court. When he was appointed president of the Special Court I do not know. That was the responsibility of the president of the district Court Of Appeals. I assume, however, that that happened immediately after he was appointed director of the District Court in Nuremberg.
Q. Well, now, Dr. Miethsam, any time after this occurred, namely, the appointment of Rothaug as president of the Special Court, at any time thereafter if Roghaug's work as a judge had not been acceptable to Schlegelberger, what could Schlegelberger have done about it?
A. Well, Undersecretary Schlegelberger either could have initiated disciplinary proceedings if there was a cause for that, or he could have charged the president of the District Court of Appeals not to appoint him on the next occasion as presiding judge of the Special Court. As long as the minister was still in office he would have needed for that purpose the approval of the minister, of course.
Q. Dr. Miethsam, at any time after the occurrence in 1939 which you mentioned in your affidavit, at any time after that did you in your capacity as personnel officer for judges learn of any action taken against Oswald Rothaug by Undersecretary Schlegelberger?
A. Nothing is known to me on that point?
MR. WOOLEYHAN: That is all, Your Honor.
THE PRESIDENT: I take it there is no redirect examination? I am treating the affidavit as the direct examination. The witness then is excused.
DR. TIPP: Mr. President, I had intended -- Mr. President, I had intended to get from Dr. Miethsam an affidavit for my client, Dr. Barnickel. Maybe it would serve the purpose much better if I would put the questions now. I do not know whether the code of procedure permits that.
THE PRESIDENT: This witness is here. We don't want any affidavits introduced by him after he has been an the witness stand. You can ask him the questions now if you desire. If any one should present an affidavit from this witness again and if it should be received, that would require bringing him back again for cross-examination, and that is not a procedure to be approved. You may examine him.
REDIRECT EXAMINATION BY DR. TIPP:
Q. Dr. Miethsam, since when have you known Dr. Barnickel?
A. I couldn't tell you the date exactly, but his name has been known to me since I worked at Munich. That is since about 1929. I met him personally much later.
Q. From the time when you were personnel referent, do you remember anything about the career of Dr. Barnickel, the official career?
A. I followed it from time to time when he became Senior Prosecutor at the District Court in Munich II.
Q. Could you please tell me when that was?
A. No, I can't tell you whether it was before 1933 or after 1933.
Q. It was on 1 August, 1934, witness. You do not happen to know his career before that in detail?
A. I do not know details, but it probably was the usual career, in Bavaria, being prosecutor and judge alternately.
Q. You mean to say that that was the custom in Bavaria at that time to be alternately judge and prosecutor?
A. Yes, certainly. For those legal officials who had a good mark on their examination, the so-called Prosecutor's mark.
Q. Did anything change concerning that method of alternating being prosecutor and judge alternately?
A. After centralization of the administration of justice that was greatly reduced.
Q If I understood you correctly, then after the centralization of justice, it was hardly possible that a prosecutor would revert back to the office of judge.
A It was possible but....
Q Witness, you have to make a short pause between the question and the answer.
A It was possible but not at the same rate as before because such a large change in transferring of personnel as had been done in Bavaria before could not be done in the entire Reich now.
Q Could you tell us something, witness, as to whether the appointment of Dr. Barnickel as prosecutor of the District Court of Minich II for political reasons were decisive for or do you know nothing about that?
A I do not know at all that any political office wanted Barnickel as Senior Prosecutor. At any rate I don't remember anything about it.
Q Now one last group of questions, witness. Do you know anything about the fact that Dr. Barnickel in 1942 applied for the then vacant position of General Prosecutor in Munich?
A Yes. Barnickel came I believe, several times to see me in 1942 and also wrote letters to me. He made a rather depressed impression, and I had the impression that, under all circumstances, he wanted to get away from the Reich Prosecution at the People's Court. As far as I can remember, he was also prepared to accept a position at a lower income in Bavaria. As for the underlying reasons why Barnickel wanted to leave the Reich Prosecution at the People's Court, he never mentioned that to me. But it could not be done for merely technical reasons at first; and then there was no appropriate position vacant at that time.
Q Do you know anything as to whether that transfer was refused by Thierack at that time?
A I can not say, because I was not the referent for the Reich Prosecution of the People's Court.
Q Thank you. I have no further questions.
BY BR. SCHILF:
Q May it please the Tribunal, I have already an affidavit by Dr. Miethsam which is contained in my document book. I assume, however, that the Tribunal would rather have me examine the witness now on the contents of the affidavit which he has already given me.
THE PRESIDENT: Has the affidavit been already introduced in evidence?
DR. SCHILF: It has not yet been introduced officially in evidence, but it is already contained in my document book. I merely want to avoid that if I submit that affidavit as exhibit, the witness has again to be taken into cross-examination by the Prosecution; but since it is apparently getting too late today to carry on the direct examination, I'm quite willing to submit to the Prosecution the affidavit of the witness, and an arrangement can be made as to whether the witness Miethsam should be cross-examined tomorrow morning or at another date.
THE PRESIDENT: Gentlemen, you have four minutes before the film runs out in the electrical transcription; so we'll have to make this brief.
DR. WANDSCHNEIDER: Mr. President, I also want to clarify a question, I too, have an affidavit of Dro. Miethsam which I would like to submit with the document, and I would like to make sure that I can also examine the witness Miethsam. I would consider it without purpose if tomorrow when Dr. Schilf has the witness, here, I should conduct my examination of the witness Miethsam afterwards. I should like to do that together with my submission of evidence and ask for approval.
THE PRESIDENT: I should like to hear from the Prosecution next.
MR. LA FOLLETTE: If your Honor please, I think he ought to come at another time again. I already told Dr. Wandschneider that I didn't think he would need to cross-examine him today. Actually, I would prefer to see the affidavits. I may not desire to cross-examine the witness at all; in that event, he need not come.
THE PRESIDENT: The order excusing the witness is vacated. The witness will return to the court room at 9:30 tomorrow morning. Do you understand, Dr. Miethsam?
THE WITNESS: Yes, your Honor.
THE PRESIDENT: We will pass upon the matter at that time. We will now recess.
(The Tribunal adjourned until 8 July 47, at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Josef Alsteeter, et al, defendants, sitting at Nurnberg, Germany, on 8 July 1947, 0930-1630, Justice James T. Brand, presiding.
THE MARSHAL: All persons in the courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, you will please ascertain If the defendants are all present.
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of the defendant Engert, who has been excused.
THE PRESIDENT: The proper notation will be made.
Before we proceed further the Tribunal has considered a practical problem concerning the examination of witnesses for the Defense and the employment of affidavits. We are sure that Counsel for both sides have recognized, and do recognize that an affidavit is a very poor substitute for direct examination.
We have concluded that when a witness in physically present in court, and present in the course of the presentation of the Defendants cases, of the Defense, we will expect all Defendants who desire to examine that witness, by their attorneys, to do so in order that it will not be necessary to call the witness back to the witness stand in connection with the case of each separate defendant.
We have concluded that no other procedure is practicable. Unless, therefore, special circumstances are made to appear, Defense Counsel should not expect to introduce affidavits as a part of their defense from any witnesses whom they have had opportunity to directly examine in person in open court.
If affidavits were received after a witness had personally appeared, then it would be within the right of the Prosecution to bring back that witness who had already appeared for cross examination, and the evils which we are attempting to avoid would again appear. The result might be that one witness would be recalled half a dozen or a dozen times and it cannot be allowed.
Now, we fully recognize, gentlemen, the fact that the Defense Counsel, each of you, would prefer to present the case of your particular Defendant as a separate unit; and, we also understand that the Prosecution would prefer, if possible, to prepare the cross examination as to each separate defendant. But, we have concluded that it will not be practicable to do that.
Both sides are having the fullest opportunity which the law can give, when you have the chance to examine the witness in behalf of your client in open court.
The necessity for an expeditious trial requires us to in force this procedure, and you may rest assured that the Tribunal will allocate the testimony to the proper Defendant's case even though it may be presented in this manner.
The cross examination of Dr. Miethsam, is it concluded?
MR. WOOLEYHAN: The Prosecution concluded its cross examination of Dr. Miethsam's affidavit in the Schlegel berger document book but other Defense Counsel, I believe, desire to make the witness their own.
THE PRESIDENT: I cannot hear you.
MR. WOOLEYHAN: I believe that after the Prosecution finished their cross examination on Dr. Miethsam's affidavits in the Schlegelberger document book some of the Defense Counsel wish to make the witness their own.
THE PRESIDENT: Yes, they are at liberty to do so.
REDIRECT EXAMINATION BY DR SCHILF:
(for the defendant Klemm).
Dr. Miethsam has, on 6 June 1947, submitted an affidavit for my client Klemm, which is already in my document book; however, considering the decision of the Tribunal I shall not submit that affidavit, but with the permission of the Tribunal, I shall examine Dr. Miethsam now as a witness.
Q: Dr. Miethsam, in your affidavit of 29 January 1947, that was an affidavit for the Prosecution, you have already stated that during the period from 1 April 1935 until 15 April, you were in Department I of the Reich Ministry of Justice, and primarily concerned with personnel matters. May I ask you who was your last Department Chief in that Department of Division I?
A: The last Chief was Ministerialdirector Loetz.
Q: May I ask you where your Department I was located during the last years, after it was evacuated from Berlin?
A: From about the fall of 1943 until October 1944 in Leitmeritz on the Elbe, Bohemia; from October 1944 until about the middle of March 1945, in Prenzlau in Uckermark.
Q: Since you were immediately subordinate to Ministerialdirector Loetz, you probably can tell the Tribunal according to what principles Loetz conducted his personnel matters within the realm of the administration of justice?
A: Dr. Loetz tried, whenever possible, in filling positions to take care of the technical qualifications of the personnel.
Q: Was that position in conformity with the principles of Minister Thierack?
A: Mr. Thierack, of course, bounded as he was to the Party, tried to place individuals who had been recommended by the Party into leading positions. These individuals, of course, did not always have the technical requirements.
Q: Did these differences of attitude lead to apparent differences of opinion between Minister Thierack and Ministerialdirector Leetz?
A: I can only say that Director Leetz, when he returned from reporting to Minister Thierack was frequently imbittered, complained that he did not succeed with his suggestions, and that the Minister simply dictated to him what he was to do. I, myself, usually did not attend these reports.
Q: Did Dr. Leetz ever mention to you that he had rather violent differences of opinion with Thierack, and that a conflict arose between him and Thierack?
A: Those differences of opinion increased more and more. At any moment we expected that Director Leetz would be recalled or transferred. In fact, Thierack, as late as the month of March 1945, put Director Leetz at the disposal of the Armed Forces, although that was of no value any longer.
Q: Do you happen to know that Director Leetz, in the absence of Minister Thierack, also submitted personnel questions to the then Undersecretary Klemm?
A: Well, not only in his absence; the routine was such that the Ministerial Director, in general, had to submit suggestions first to the Undersecretary and then usually together with the Undersecretary, had to report to the Minister.
Q: Did Director Leetz mention to you whether he preferred to report to the Minister or rather to the Undersecretary?
A: Of course, Ministerial Director Leetz preferred to go to Undersecretary Klemm and report to him. Undersecretary Klemm had a calm disposition, much more humane than Thierack. With the latter one had to expect an outburst at any moment. It was much more possible to state objective points to Klemm. Thus, Director Leetz tried to submit matters to the Undersecretary first and obtain some decision from him when he knew that he might not succeed with the Minister, or at least encounter great difficulties.
Q: Did Director Leetz talk to you about his experiences to the effect that Klemm, apparently, in principle, was in sympathy with Leetz' attitude concerning personnel policy rather than with Thierack's attitude?
A: All I can say is that Undersecretary Klemm was much more amenable to technical, objective points of vies, and that he also supported that against the Minister. For example, the Minister had ordered that no higher official could be promoted who was unmarried. Ministerial Director Leetz fought against that continu ously, and he tried to explain to Undersecretary Klemm the lack of sense inherent in such a measure.