The text is:
"The reciprocity contained in the Executive Order of the Reich Ministry of Justice concerning the corporation of Justice authorities with the SecuritySerbice, the SD of the Reichsfuehere-SS of 3 August 1943."
The following words are not interesting.
In the journal, "German Justice" we have examined this quotation and we have found out that this quotation must beincorrect. In the journal, "German Justice" 1943 and also in the year 1944, the general decree which is mentioned here of the Reich Ministry of Justice has not be published. That would impair the probative value of this excerpt very much.
I am not in the position and it would not be up to me, also, to examine where and whether this general Executive Order appeared in the journal "German Justice."
I would also like to add the following in this connection. The events must have been before the year 1943, that is not as it is said in this document which I just read, in 1943, but in 1942. That can be seen from Exhibit 98. Exhibit 98 was submitted in Document Book 1-D. It is on Page 159 of German Document Book 1-D. There was discussion about this document before. It is a piece of printed material from the chief of the SD, 3 September, 1942. The Chief of the Security Police sent this memorandum, obviously, to several Reich Officers and the particular one submitted by the Prosecution has the remark "RK" on it. That is Reich Kanslei, Reich Chancellery and it is from 9 September 1942. The evidence material submitted has on the first page several handwritten marginal remarks from which it can be seen further that this memorandum was received by the Reich Chancellery.
The stamp which is on this document is evidence of this and it shows that this material was not examined carefully. When this document was discussed previously, it was unfortunately, not clarified that the Reich Ministry of Justice did not have anything to do with document.
The stamp of receipt and the handwritten notes which also showed some names, show unequivocally, that this memorandum did not go beyond the Reich Chancellery, that is not via the Reich Chancellery to the Reich Ministry of Justice. It could not have gone that way.
To that extent, I also want to object to the probative value against the Reich Ministry of Justice or its members. I would like to request that the gentlemen of the Prosecution make some remarks in regard to this document once more, remarks in regard to the Reich Ministry of Justice or the defendants from the Reich Ministry of Justice, and show us how they are connected with this document, or how the Prosecution would like to connect them with this document.
MR. LaFOLLETTE: I would like to inquire whether Colonel Nesbitt has Document Book 1-D at his desk?
COLONEL NESBITT: Yes, sir.
MR. LaFOLLETTE: May I borrow it please?
In the first place, there was a slight misunderstanding. I thought Dr. Shilf has said 1-B. I was looking at 1-B during all of his remarks. I would like to have a minute to look at 1-D. We did not bring it because 1-D had already been admitted.
THE PRESIDENT: May the Tribunal make a suggestion?
MR. LaFOLLETTE: Yes, Your Honor.
THE PRESIDENT: When this document was received in evidence, it was stated at the time that it would be received as a captured document for what it was worth. The value of it is argumentative. To whom it applies, is argumentative.
MR. LAFOLLETTE: Exactly. The weight to be given to it is something for the Tribunal to determine.
THE PRESIDENT: That is a point of argument. Defense counsel can argue that point properly.
MR. La FOLLETTE: As I recall, the other question which Dr. Shilf has presented is the question which will naturally arise more often. That is the question of disagreement as to proper translations. I think under the circumstances, he was well within his rights and he acted at the proper time in pre senting his objections to what he considered to be improper translation. Eventually, I think that is an extra que stion of fact which exists in trials of this kind. The Tribunal either of its own motion after consultation with other Tribunals who have handled this question or possibly by a conference between attorneys for the Prosecution and the Defense would decide the issue. A method might be worked out using the office of a Commissioner. Otherwise these questions of disagreement in translation may be settled in an orderly manner. My point is that I think Dr. Shilf was quite right since we have no rules now in pointing out what he considered to be an incorrect translation. I do not believe that eventually , we will be able to settle these matters at the podium. I understand all he was doing was pointing out what he considerd to be an inaccurate translation. It might be well for us to consider within the next few days either among ourselves or at the implication of the Tribunal an orderly method of at least presenting to the Tribunal some factual background by which it can determine whether our translation is correct or whether the translation which defense councel believe is correct is the one which they will follow.
DR. SHILF: I think that the suggestion made by Mr. LaFollette is very good. Only so far we have not yet had the opportunity to compare the documents before they were read. We could not compare the English and German documents because the Defense gets only the German copy of the document, not the English.
Therefore, I would like to say in addition to the suggestion made by Mr. LaFollette, that with the German document books, we should receive at least one copy of the Englisk. Otherwise we can notice mistakes in translation only here during proceedings. It was only by chance that I noticed it because Dr. Mottgenberg who heard the English translation also saw the German translation lying before him. He noticed it that way.
Therefore, I believe that my request is proper that at the same time we receive the German text, we should also be give a copy of the English. At least then we could look over a large amount of the material before it is presented and we might be able to reach an agreement with the gentlemen of the Prosecution.
MR. LAFOLLETTE: May it please Your Honors, there seems to be, apparently, a lack of adequate service for defense counsel in this Tribunal from the Defense Center, because we are required to send four English copies as well as 16 German copies of the Document Book to the Defense Center for the benefit of the defense counsel so that they may do just what Dr. Schilf wants to do and which is obviously fair. We have a receipt here that it was received. I certainly don't want to show bad faith to Dr. Schilf, but I simply say that when we deliver them to the Defense Center that the obligation is for the Defense Center to see that each counsel is furnished with those four copies; and perhaps if I may also suggest, since the Secretary General's office in the Defense Center in a sense is a service branch of the Tribunal, I would request the Tribunal to cause investigation to be made as to why the defense counsels are not being properly served.
THE PRESIDENT: There is still the open question as to how we are going to settle matters of the disputed meaning of certain words. I wonder if that can be worked out by agreement between the prosecution and defense counsel. If not, we will have to make some rule.
MR. LaFOLLETTE: With the permission of the Court, we will try to confer. May I suggest now, if the defense counsel will appoint from their members a committee not to exceed three, we will try to arrange time within the next day or so to meet with them, and with an interpreter if we need one, so that we can attempt to work out an orderly method of resolving these questions of translation.
On the question of the books, I am deeply sorry that you haven't been receiving them, but we have been sending them to the Defense Center.
THE PRESIDENT: May I make the further suggestion that instead of bringing these matters up one at a time that if the defense counsels will make a notation of the words where they question the translation, it can be taken up properly, and if there is a disagreement about them-
MR. LaFOLLETTE: That was one of the methods that we had in mind that we might be able to devise. Mr. King would like at this time to also present to the Court the prosecution's position on the specific objections made by Dr. Schilf to NG-219, which is Exhibit 42, I believe.
MR. KING: As I understood Dr. Schilf, there were two questions in connection with NG-219 that he wanted clarified. Perhaps one of them, at least, falls in the matter discussed a moment ago re the question of appointing an ex-officio committee to get together on translations. However, I think in view of the other question to be determined, we might discuss the question of translation in this case only at this time. He pointed out that the date--I am reading from Page 85 of the English Book now--that the date of 3 August 1943, as it appeared in the German text, must be incorrect, and he gave his reasons for so believing. The English Book does state 3 August 1942, and since the matter came up, we have had it checked and it is indeed 3 August 1942.
He also raised a question as to whether it was to be found in the source as cited. The Deutsche Justiz, the German Justice, is 521. We would like to say in clearing this matter up that it does appear in Deutsche Justiz for 3 August 1942. If defense counsel wishes, we would be glad to make that copy of Deutsche Justiz available for checking, although I believe they probably have access to it as well as we.
MR. WOOLEYHAN: To resume about the introductory remarks to be made concerning Document Books 2 and 3: Document Book 2 has been delivered both to the bench and to the defense for sometime now, as has the first two or three series in Book 3. Book 2, which is really one document, namely, NG-715, deserves a word of description and explanation. The prosecution intends to offer Document Bock 2 in evidence as an exhibit of itself. It comprises some approximately 40 statutes from the official German statutory organ of publishing legislation, namely, the Reichsgesetzblatt. Also, there are two or three excerpts from the German equivalent of legal texts or law review articles. The reason it's presented in this form rather than each statute or excerpt of a statute separately, for even without relying upon judicial notice, which is rather doubtful in a case of this kind, the prosecution has chosen this method of putting into evidence and discussing German legislation mainly because of its handy quality for presentation technique.
It offers an ability to go directly from the statute to the cases and ministerial action involved, which means going from Book 2 to Book 3 with the minimum of effort.
To be sure that the defense was not prejudiced in any way by getting up German criminal legislation in this form, the defense's version of Document Book 2 was a German translation of the index of the book giving the accurate statute citations and the official German title of each law. In addition, the prosecution undertook to furnish the defense, to the extent of the library's facilities, with one complete set of the Reichsgesetzblatt and legal text books which are cited. The only other available set was furnished to the interpreters so that they might render an accurate German version of what we may read. We, therefore, thought that any slight difficulty imposed on the defense by requiring them to go from their index to the actual statutes themselves is outweighed by the tremendous physical advantage to the prosecution of having all the English expertly bound into one handy reference book. Is there any objection by the defense at this time to the statutes as presented in this manner?
DR. BRIEGER: Dr. Brieger for the defendant Cuhorst. I do not have the lists with me today, in the meantime however, I have already found out that this list is not quite complete. There have been some laws left out which, particularly in our case, have importance for one or the other of the defendants. Therefore, I shall use one of the future sessions in order to point out these emissions to the Tribunal.
DR. SCHILF: Dr. Schilf for the defendants Klemm and Mettgenberg. We have the table of contents. We have received it. And in my opinion, when we take cognizance of these laws, we have to have the table of contents in front of us.
Before the prosecution however quotes from these laws or reads them, I would like to request that they tell us to what extent they intend to quote from these laws, for I cannot assume that these laws will be read in their entirety: For Page 1 is the Constitution of the German Reich of the 11 of August 1 1919. That is a thick book of over 180 paragraphs. It would be sufficient for us if the prosecution would, when it is quoting from these laws, tell us the articles or the paragraphs of the law which they intend to read. Then we would have the opportunity to read them afterwards. In order to avoid long discussions, I would like to make this request right at the beginning so that we can find the place from which the prosecution intends to quote, exactly and quickly.
MR. WOOLEYHAN: The prosecution wishes to state at this time that we of course had always assumed that any excerpt that we may read from any German statute will be carefully designated in the record as to section, paragraph, title, to give you every assistance in going to your own statute books and finding it.
With regard to the remark by counsel as to possible omissions or errors in the translation of these statutes, might I suggest that like other translation or omission errors, if you will but submit a list to the prosecution after Court as to what omissions or errors you find, I think that mechanical problem can be worked out to our satisfaction without taking court time for it.
Are there any questions from the Tribunal before the prosecution offers Book 2 into evidence, as to its form or conception or the method it employs?
THE PRESIDENT: Pardon me.
MR. WOOLEYHAN: I said, Your Honor, does the Bench have any questions we can clarigy further as to the method of preparation or what this book's purports to be?
THE PRESIDENT: We have had no opportunity to study it and therefore we have no suggestions at this time.
DR. BRIEGER: (Attorney for Defendant Hermann Cuhorst) I am referring to the things which the Prosecutor has just mentioned.
I would like to submit to the Prosecution such a list; however, if the Table of Contents which we have will be submitted as a document, then I request to have the right reserved to me that I shall be allowed to submit this list not only to the gentlemen of the Prosecution, but at the earliest opportunity also the same to the Honorable Tribunal.
THE PRESIDENT: Referring to the objection made by Dr. Brieger, representing Cuhorst, we understand that the objection made by Dr. Brieger was that there were other statutes that they might want to have introduced, and as to that, the Tribunal feels that they can introduce them at the proper time. The Prosecution could only be required to introduce those that are favorable to it; Defense Counsel can introduce any others at the proper time that applies to them.
DR. BRIEGER: I would assume and could understand that the high Tribunal and in view of the large amount of material, and in particular the large amount of material laws, would recognize the necessity to familiarize themselves at an early time with these extensive laws, and, therefore, could be of service to the high Tribunal if I could submit the supplementary list at the earliest possible opportunity.
THE PRESIDENT: It is entirely agreeable to the Court if the Prosecution is willing to submit additional statutes.
MR. WOOLEYHAN: One further remark, NG-715, after this document is offered, and, if the Court please, admitted, NG-715, we will continue to refer to it countless times in the next few days with reference to various documents in Book III; that is, we will attempt to correlate, statute by statute, what is set forth in Book II with cases and other evidence to which that particular statute may relate. In Book III there will be a constant cross-reference, so we will continue to refer to that exhibit even after it has been introduced. One further remark. All of the statutes in Document Book II, with the exception of two or three, legal commentaries from legal text, were found originally published in the Reichs Gestz Blatt. It is the Prosecution's understanding, subject of course to correction by the Defense, for after all this system of law is not our native one, that the Reichs Gestz Blatt is the authoritative organ for publication of legislation throughout the Reich, and has been so throughout any year that might have been touched upon in the evidence in this case.
That is by way of description as to what the Reichs Gestz Blatt is.
The Prosecution at this time offers into evidence, as Exhibit No. 112, Document NG-715, which is Document Book II in its entirety.
THE PRESIDENT: It will be received in evidence.
MR. WOOLEYHAN: If the bench and the defense would please turn to Document Book III-A.
THE PRESIDENT: That has not been distributed to the bench.
MR. WOOLEYHAN: We have a receipt to the effect that it was received by the German Information Center and the Secretary General on Saturday.
THE SECRETARY GENERAL: I only received Book II this morning.
MR. WOOLEYHAN: We have a receipt signed by the Defense Information Cent and the Secretary General that on 1700, 14 March, Book III-A and III-B were delivered in the requisite number of copies.
THE PRESIDENT: It is possible that those books were distributed to our rooms instead of the bench.
MR. WOOLEYHAN: If the Court please, until those books are delivered, the Prosecution is unable to proceed further.
MR. WANDSCHNEIDER: (Attorney for Defendant Rothenberger) I ask you to excuse me if I again mention technical questions in regard to the material and the difficulties for the defense, if these documents are discussed and referred to in Document Book II.
The German Reichs Gesetz Blatt is at your disposal every day in this case; however, it is the case that most of the Defense Counsel do not have all the legal literature, including the Reichs Gesetz Blaetter because we lost them, and the Defense Counsel throughout will have to use a library which is very insufficient for our purpose Therefore, it would not be possible for us, if the fifteen or so of us have to use one copy cf the text of the legal code in order to follow the proceedings.
Therefore, from the point of view of the Defense, it is necessary in our opinion that at least the extent of the text which will be read should be known to use at least a few days before so that we can master the material, which in view of the conditions which I have just described would otherwise not be possible. I believe that it would not be difficult for the Prosecution to give us, tell us, all of the laws which they will read in advance -tell us in advance what they will read. I would like to ask the Prosecution for this.
MR. WOOLEYHAN: If the Court please, we realize the shortness of library facilities, and the Prosecution will undertake to file with Defense Counsel through appropriate channels, in writing, a list of citations of every section and of every paragraph of each of the laws cited in the Table of Contents which are already in their possession. They should have that in the next day or so, so that they will have adequate preparation in view of the restricted number of books. The Prosecution will undertake to furnish that. Has Document III-A been delivered yet?
THE PRESIDENT: Not to the bench. Mr. Wooleyhan, may I suggest that you be given the recess time to look these up. We will take a 15 minute recess at this time.
MR. WOOLEYHAN: Thank you.
(A recess was taken)
THE MARSHAL: Military Tribunal 3 is again in session.
DR. BRIEGER: I would like, in the name of my colleagues, to make the following declaration. The gentlemen of the prosecution cannot overlook the fact that there are technical difficulties at hand for us--that is to say, for the defending counsel--when the way is taken which is proposed by the prosecution. We of the defending counsel have definitely agreed about this fact, which is of great significance to us for the entire running of the process, and which is probably decisive for the sentences. Those German laws which are admissible for use here in the proceedings, which are being discussed by the prosecution--if this way is taken which had been proposed by the prosecution, then it would be necessary for every one of us, the defending counsel, on the particular day of the proceedings, to take along our secretaries in order to write this down, as we must immediately check the material. This would probably not be permissible, because of lack of space.
For that reason, we would like to propose that the prosecution tell us, several days before-hand, which laws are going to be discussed here, so that these laws will be duplicated by us and that--which is very important--the German text will always be compared with the English text which has been worked out by the English interpreters.
MR. WOOLEYHAN: May it please the Court, the request by the defense is apparently a continuation of a similar request made before the recess, that first request being a list of the paragraph and section numbers of the various statutes which the prosecution intends to quote. That we agreed to furnish. In addition, we will also comply with the most recent request of defense counsel, which is notice, at least a day in advance or as far in advance as the pro secution can make it, beyond a day, as to what statutes and portions thereof we intend to introduce in the future.
That we will also undertake to furnish, and we think that without doubt we can let defense Know the paragraph number and section number of each statute we intend to refer to two or three days in advance, each time, of the time when it will be introduced in Court. Is that sufficient?
DR. BRIEGER: I recognize perfectly the good will on the part of the gentlemen of the public prosecution, but the representatives of the defense counsel are of the opinion that two or three days are often not quite sufficient, because you have got to take into consideration that we are occupied by other work as well, and this is a task for us which every one of us must deal with very conscientiously. We would much prefer it if we could have five or ten days' notice, if we could be informed of the necessary material, and if, every time, we could be told of the series of documents before-hand. That is to say, it is of special significance for us that this material be submitted, every time, in the form of documents.
THE PRESIDENT: In the first place, referring to the remark made by counsel who has just spoken, we cannot permit this trial to drag along because counsel may have other business to take care of, if that is what he meant. This trial must be expeditious; it must go forward, and each defense counsel must give this first place in his work. If I correctly understood defense counsel's last remark, that is our answer to that.
Now concerning this document, every part of this document is introduced in evidence, as we understand it, and therefore it seems to the Tribunal that defense counsel can immediately begin to examine these sections and assume that, from time to time, different ones will be introduced, and that possibly eventually all of then may be introduced.
They must make their study of that without delaying these proceedings.
I used the word "introduced", perhaps, when I should have said they would be read from time to time.
MR. LA FOLLETTE: I think that probably there is a little misunderstanding. We have felt that book II, which is an English translation of the German law which we have introduced and which we intend to refer to in connection with documents which we will introduce, was not translated as a document or a text into the German. The index of all the German statutes which we translated was furnished. We did not furnish a German verbatim text of each statute, after furnishing the index, for the reason that we were of the opinion that, in a sense, this German law was capable of being proved in the same manner as judicial notice. However, we made up a document and we furnished an index of the sections of the German law to which we refer.
I don't want to mislead the Court, or to take advantage of defense counsel by letting the Court not understand that we have furnished, in German, an index of all the statutes.
Now, we have further agreed that not less than one and, to the best of our ability, two or three days in advance of reading cases from Book III which are related back to the statutes found in Book II, we will lay on the desk of defense counsel not the translations, but the section and article numbers of the Reichsgesetzblatt from which we will read, which I hope and feel is an adequate thing to do.
Now as to today's proceedings, I would like to know this. Were four English translations of Book II delivered to the Defense Center? Did defense counsel get four English translations of Book II?
(Negative nodding of heads by defense counsel)
None at all? They were ordered sent down from the document room on Friday.
Now, as to Book III, have German copies of Books III A and B been received?
(Affirmative nodding of heads by defense counsel)
That is correct; sixteen of those.
Have any English copies of Books III A and B been received?
(Negative nodding of heads)
They have not? I assume they have not, because we had to get four of them and deliver them to the Tribunal.
That, Your Honors, arose out of--it happened, anyhow. We felt that we had directed the document room to deliver Book A in its present condition, notwithstanding the fact that the last document in it mas terribly messed up. We did not want to delay, they could not get the document ready, so we instructed them, in writing, to deliver Books A and B as they were, with the statement that we would later introduce the one document in Book III-A as a separate document so that we could proceed this morning, as we stated we intended to do. We found at noon, or when we started this afternoon, that none of that instruction had been followed out by the document room. Naturally, defense counsel have no English translation of Books III A and B, and I now find no English copies of Book II.
I don't know what to say to the Court, except an accurate explanation of what we did and what we asked to have done. I question whether it is fair to ask defense counsel to proceed without English copies of Book II at least, and without English copies of Books III A and B, under the rules requiring 24 hours. We tried to comply with the rules and in this instance--also for the protection of Mr. Nesbit-there has been no slip up in the Secretary General's office.
I did refer, before noon, to the fact that we do have receipts for certain documents in English which we delivered to the Defense Center, which apparently were not distributed to the Defense Center. I don't know what the situation is with reference to Book II.
There were delivered in English to the Defense Center four copies of Book 2 at 1400 hours on 11 March. Now, my point is that I don't question the statement of defense counsel. I only say that your Defense Center has not distributed that which we put there, and of course to that extent our responsibility ends when we deliver them to the Defense Center. So Book 2 was sent to the Defense Center. Books 3-A and B, apparently the English copy never got any place, despite our request. Now if counsel want us to proceed,--we are in violation of the rules, but we will try to proceed. And if they feel they have to defend themselves and their clients, we will leave it to the Tribunal. I am overwhelmed with embarrassment, but here I am, and I don't think it is my fault.
DR. BRIEGER: I would like to add to what I said. I should like to make a supplement to my statement as regards the field of penal laws. In the last year of the Nazi rule the laws were changed so often that also when all the material was collected, that is to say, in every text of laws which has been submitted here it is of very significant importance that every time it is stated through absolutely correct data the time at which the text of this law was valid, and therefore I request that the possibility is given to us, the defending counsel, to point to it every time changes or alterations, especially these of particular significance, were undertaken during the course of time.
DR. SCHILF (Counsel for Defendants Klemm and Mettgenberg): I would like to add to what my colleague has just stated. In Document Book 2, in the second place, a law of March 1933 is stated. This law has been changed several times, that is to say, through new laws and later on through a completely new edition. It is a particular example that this list of laws is not complete and that it needs to be supplemented.
The question now arises whether we can ask the Prosecutors, in the sense that Dr. Brieger has just suggested it, to give us the particular period of time or whether that is the task of the defense counsel. I myself am of the opinion that the Prosecution is to state the effective time, but I do recognize the extreme difficulties which have arisen as regards the Prosecution, as it is already very difficult for the German lawyers to establish the laws which are changed so much, that we can imagine how difficult it is, and that it is every much more difficult for the Prosecution. I would like to mention it, because as far as we can see, if the Prosecution is going to quote laws, is going to make a discussion about these every time it quotes them, about the question of an alteration and about the question of the effectiveness of time, then I would like to make a personal remark. My colleague Dr. Brieger has previously stated that he requests that the offices of the law which are to be represented should be given five, six, or even eight days' notice and that they should be submitted at so many days' notice, and he has stated that he is of otherwise also very busy. A misunderstanding has occurred in that respect. The President has obviously got the impression that Dr. Brieger is dealing with other things. That is actually not the Case. We are all only employed with the cases which we are here representing. But we have regularly, immediately after the sittings, to confer with our mandates, and that our time is therefore particularly taken into -- it is used in that respect. I would like very much to clarify this misunderstanding.
DR. BRIEGER: My colleague Dr. Schilf has definitely understood me correctly and has expressed my thoughts correctly. I would like now to allow myself to make the following pro position in order that the high court will not be too much burdened with discussions and disputes which arise between.
the Prosecution and the defense counsel as regards the text of the present laws, that the Prosecution declares themselves willing to cooperate with a small commission which is formed on the part of the Prosecution in order that the gentlemen of the Prosecution and also the gentlemen of the defense counsel will always agree about the text which is submitted here to the high court so that discussions and disputes concerning the text at the moment valid can be only submitted to the judges only in those cases where an agreement between the defense counsel and the Prosecution cannot be reached.
MR. LA FOLLETTE: I think that can be done, certainly on the question of an agreement as to the comparison of the texts and the translations which we will try to work out, as we told the Court earlier on other translations. With reference to the dates that these acts are effective, when we furnish the information which we will furnish, we will also furnish the date that we rely on that the act became effective. If we are in error, end if subsequently we cite a case and defense counsel believe that there had been an amendment to the law between the time that we rely on the law and the time the case was decided that, of course, again is a matter of evidence, I believe, and goes to the weight of it. When they put in their case in chief I assume that they will say that the case involved in Document No. X relied on by the Prosecution as coming under Law No. 10 is not in point because Law No. 10 was amended before Case No. X was cited. So that we meet that when the defense puts in their proof. If we are wrong on our law dates, that is the burden we will have to assume. On the otherhand, I do not think, and I am perfectly willing that we shall furnish to defense counsel at least a day or two or three days ahead of time the article and section of the act from the Gesetzblatt of the year upon which we rely and the date that we say it became effective.