For that reason, I do object to this question and to further of that kind because I do believe it is not in the issue.
DR. KOESSL: May it please the Tribunal, may I be permitted to say something to this point?
THE PRESIDENT: The Tribunal is of the opinion that this is not permissible cross examination and that is as far as we care to rule at this time The object is sustained.
Q. What was the importance, Witness, in your opinion, if you criticize the development of law in the National Socialist Reich. What was the importance of the principles, which still today, are valid throughout the world.
MR. LAFOLLETTE: I object, your Honor. I don't see that there is any question of sovereignty. It's beyond the range of the direct examination completely.
THE PRESIDENT: The objection will be sustained.
BY DR. KOESSE:
Q. Witness, you have frequently referred to the analogy when you wanted to consider analogy method in order to prove illegal features of the National Socialist state. At any rate, you wanted to describe it as something opposed to constitutional principles?
A. Yes, it served to smuggle the National Socialist measure of the so-called sound feelings of the people into the law.
Q. Would you like to give an example to the Tribunal in which you can show that analogy led to unjust developments?
A. I cannot give individual cases. I just pointed out the meaning of this provision which make it possible for the judgment---
THE PRESIDENT: One moment, witness, I think I am safe in saying that this matter has been gone ever at least five times. I think more than that. This is clearly such repetition. I think it's an interference with an expeditious trial.
BY DR. KOESSE:
Q. Witness, you also mentioned reformatia in peus. Did you believe that the introduction of reformatia in peus represents a violation of the principles of a just state?
A. I must affirm that because it makes it possible to punish a defendant and to use a legal remedy to increase his punishment - the measure of punishment. Perhaps when the authorities - that is, the prosecution - had any objection against a too mild punishment there was a possibility that they could raise that objection on their part and in this manner cases which also in the opinion of the prosecution it seemed fair to decide for greater punishment that could be demanded. It wasn't necessary that the defendant and he demanded a revision in his own interest could be threatened with an increased punishment.
Q. Is it fair to say that in a just state it is necessary to reach a just decision regardless whether it is in the interest of the person under indictment or not?
MR. LAFOLLETTE: I object to that, your Honor, for the reason that I do not consider it is directed to any of the direct examination. I asked the witness to compare - he testified fully his comparison and testified fully under cross examination as to what these comparisons were He wasn't asked on direct examination about the philosophy of whether or not you can get a correct result by using the principles of analogy. I asked him to explain what the principle of analogy was and he answered it. I don't believe this was covered in direct and I believe that, therefore, this cross examination does not test the credibility of the witness's opinion or serve to test his credibility as an expert on the subjects about which he testified on direct examination.
MR. KOESSE: May it please the Tribunal --
THE PRESIDENT: The Tribunal is of the opinion that whatever argument counsel wishes to make on that should be addressed to the Court and not to this witness. The objection will be sustained.
MR. KOESSE: Witness, you spoke about the influence and the interference of the Gestapo and SD Security Service in the field of justice. What were, in your opinion, the possibilities of the officials of the justice administration to defend themselves against these influence?
A. By reports to the minister and by whatever action - the action by the Ministry to protect them.
Thank you. I have no more questions.
THE PRESIDENT: We are so near the usual recess time that we had better take our recess before some other counsel proceeds with cross examination. May we be advised at this time which particular defense counsel desire to cross examine this witness?
DR. KIRCHHOLZ: Dr. Kirchholz for the defendant Barnickel.
MR. LAFOLLETTE: Do you want to know how many there were remaining?
THE PRESIDENT: Yes. That was one of the things and what particular defense counsel was text to cross examine and not hear them at this moment.
We will recess first.
MR. LAFOLLETTE: Do your Honors wish the counsel, all who want to cross examine, to rise?
THE PRESIDENT: I think that would he a good idea, that we know how many and which defense counsel desire to cross examine. It seems there are three. We recess at this time.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. SCHUBERT (Counsel for the defendant Oeschey): May it please the Tribunal, may I begin the cross-examination? My predecessor, who has just reported here, has told me that he does not care to cross-examine the witness.
BY DR. SCHUBERT:
Q Witness, during your direct examination you told us that persons and groups of persons were excepted from ordinary jurisdiction and handed over to special courts. Does that apply to special courts which were created on tho basis of the order of 31 March 1933? If you do not have that order there, I am ready to give it to you.
A Tho order regarding special courts? No; I said that for groups of crimes partly, and partly for groups of people, special courts were established.
Q And the special courts of March 1933 were instituted for what? For persons, or for people?
A For crimes.
Q And how about the special courts which, on the basis of the order **** February 1940, were expanded?
AAlso for penal fields; not for persons.
Q. Thahk you. Witness, was there a special jurisdiction for persons and groups of persons already before 1933? Perhaps you remember some examples in this respect.
A Not at the moment.
Q May I remind you, for example, of the labor courts.
A Oh, yes.
Q The former trade and business courts.
A That could be called for trade matters and business matters.
Q I believe that this example does not apply in this case. Witness during your direct examination you said that the special courts gradually became the rule, rather than the exception.
A Yes, I did.
Q Are you of the opinion, Witness, that this opinion applies already to the special courts which were created on the basis of the order of 31 March 1933?
A Not yet in 1933, but in the course of the development as I have described it here there was an always increasing growth of the special court.
Q Witness, can you tell me, did I understand you correctly that during your direct examination you said that it seems to you to be the essential difference between the trials in the special courts and the procedure in the ordinary tribunals -- the essential difference to you seems to be the fact that sentences passed by the special courts were not subject to legal recourse; that is, they could not be objected to. Is that applicable? Is that correct?
A I believe I said that in regard to the People's Court, which in the course of time developed a competency which went far beyond its competency.
Q What then do you consider to be the essential difference between the ordinary jurisdiction and the procedure in special courts?
A The essential difference, in my opinion, is the influence of the executive on the composition of the courts through the appointment -- I was rather say the appointments could exert an influence in the establishment special courts by appointing judges who were especially pleasing to the National Socialists.
Q Does this not apply in the same way for the composition of the penal chambers? Is there any difference at all?
A I believe in the selection for these courts, especially for the People's Court, a special -- I would like to say a National Socialist elite was chosen, because there the special interests of National Socialism and of the jurisdiction were at stake, while other judges who did not have the full confidence of the executive were left in the ordinary courts and they were given rather small posts and were given cases which were not so intering to the executives. There it was the possibility of selection, that is for the purpose of using the Nazi expression, the "Einsatz", the use of special judges.
Q Witness, I did not ask about the People's Court just now, because I am not interested in that in my particular defense. I asked about the special courts, and you answered me that you think there is an essential difference between the ordinary jurisdiction and the special jurisdiction and that you see this essential difference in the fact that there was as selection of judges on the basis of their reliability. Could you, according to your experience, by possible examples which you could cite, apply that to the special courts?
A I said already that for the special courts, especially National Socialistically reliable judges were chosen, while the others were occupied with matters which were not so interesting for the executives. That is, that were assigned to the penal chambers. It was absolutely a policy of appointment -- an appointment policy was made possible.
Q May I ask you whether any examples are known to you, whether any particular person informed you about it that only certain absolutely reliable person were appointed as judges of the special courts?
A That I was not only told by judges but also was confirmed by the appointments themselves -- could be seen from the appointments. I have not been called here by the Prosecution as a witness for individual cases; however, I can mention the case of Rothaug, which I heard about as soon as I came to Schweinfurt and then there took over the post of President of the District Court.
I was then told that he had already before 1933, through uninhibited behavior during proceedings, that he had become notorious due this and that it was without doubt that his appointment to the special court of Nuremberg was made on the basis of his special suitability for the purpose of the executive of the state and his ruthless execution of National Sociaist jurisdiction. I was told -- I asked a judge and an assessor, an as** judge, about this, and they told me that the defendant Rothaug in education lectures, not only for future lawyers, jurists, but also for judges, which held for both -- he like to use the expression in these lectures, "The be** must be destroyed." He meant the head, the human head, by this. He said that head must come down. This expression seems to be especially characteristic of him. Several people told me that it was characteristic of Rothaug. I come this individual case in answer to your question.
Q Witness, can you tell me whether in the trials in the special court the defendant was not granted legal privileges which were granted to him ordinary trials according to law?
A The question of the inviolability of sentences of the special court is now to be considered. That is the important question, especially in consideration of the fact that according to Paragraph 14 of the order of com tency of the special courts the Prosecution can apply to the special court also for other crimes and delicts than those which are obligatory to be brought before the special courts -- that the Prosecution could make the special court competent for these other crimes also, if the prosecution believed that the immediate sentencing by the special court, in view of the seriousness or the despicability of the action, because of the excitement caused in the public, or because of serious endangering of public order or security, that they considered it desirable and necessary. Therefore in practice any crime or delict could be taken away from ordinary jurisdiction and transferred into the special jurisdiction, drawn into it, and thereby made into a sentence from which there was no appeal. If one considers how skilfully during the Third Reich an excitement in the public could be stage one recognizes the entire extent of the jurisdiction of the special courts with the unfavorable corollary of the lack of appeal.
Q. Witness, from your answer, this may be concluded: According to law, defendant who came before the Special Court essentially had the some legal privileges at his disposal as the defendant in ordinary proceedings?
A. Yes. I can add also that the prejudice was not there and that Paragraph 23 asked for a special speeding-up of the trial. It made this provision.
Q. Do you know, witness, that in the course of the war, the legal men for an ordinary proceeding were restricted to a considerable extent?
A. Yes.
Q. And that even a person sentenced in an ordinary court was given the opportunity to appeal from a sentence only if the Tribunal allowed him to do so?
A. Yes. At the end, I think in 1943, that happened. That was a further step in the development against legal privileges which became part of the ordinary proceedings.
Q. It is the order of 13 August 1942?
A. Yes. That is correct.
Q. May I continue? Witness, May I continue? This morning, you affirmed that the so-called extraordinary objection can also be made in favor of the defendant. Could you also say the same in regard to the nullity please?
A. Yes.
Q. Witness, during your direct examination, you said that every judge of a local court could deviate from a sentence of the Reich Supreme Court. I believe that we are in agreement that is correct in theory. Please answer the following question: Could a judge who deviated from a definite judgment of the Reich Supreme Court be sure that sentence would be sustained? Would he not be sure that this sentence would be appealed by one of the parties participating, and that it would then be reversed?
A. He would only do it in a case where he thought that his judgment could lead to a change in the judgment. We are not concerned with a practice which is usual, leaving out of consideration certain obstinate judges who wanted to be right without question. I only mentioned this in order to illustrate that the use of precedents was not obsolute in German law.
Q. Thus it was in practice as follows: In general, the court applied the judgments of the Reich Supreme Court? Is that correct?
A. Yes.
Q. Does this apply especially to those courts whose judgments were reviewed by the Reich Supreme Court?
A. Yes, that, too. For others, sentence which were not reviewed as hi as the Reich Court, in the interest of unity of the administration of justice in general, they kept to the existing precedents handed down by the Reich Supreme Court. I am only mentioning the basic principle.
Q. Do you know that the sentences of the special courts, under certain circumstances, could be reviewed by the Reich Supreme Court?
A. Yes, by means of legal recourse which formerly had been mentioned.
Q. the nullity pleas?
A. Yes, the nullity plea.
Q. Witness, do you also know legal cases, in which the Tribunal was bound to comply with the decisions of the Reich Supreme Court?
MR. LaFOLLETTE: Your Honor, I do not object to the substance of the question, but I do not believe the question is directed to testing the knowledge of the witness about the subject matter. I believe it would speed the a little if Dr. Schubert instead of saying generally do you know of a term, would specifically direct the attention of the witness to the section he has in mind. I think that makes it easier. I do not want to confuse the idea leading, but this will make things go a little faster.
Q. Witness, do you know the order of the 21 February, 1940? Do you have it at hand? It is the so-called Competency Order of the 21st of February 1941. Perhaps you can find Article 36.
We are concerned with a case, Witness, if I may say which came to the Reich Supreme Court by the way of a nullity plea. The Reich Supreme reverse the sentence and it was returned to that Special Court for another decision. In this case was the Special Court bound by the judgment of the Reich Supreme Court in this particular case.
A. Yes.
Q. I must ask to be excused for a moment, but once again I must briefly return to the question of the health sentiment of the people. I believe that there is something which is not quite clear about it yet. It seems, according to the results of the cross-examination so far, as though the socalled, sound sentiment of the people, per se, would hove been sufficient for a punishment. Is that correct, or must there at least have been some facts in the case which though not expressly regulated by law, can be explained by its meaning. Is therefore the sound sentiment of the people subsidiary in the decision?
A. You mean the concept of sound sentiment of the people in the analogy, yes, but not in other matters. One could ******** only according to the sound sentiment of the people. You could not sentence people only according to that. The sound sentiment of the people was the thing that influenced. It was the thing that move emphasis, and gave the accent to the analogy for which of course a comparison of similar facts were proposed. In a certain sense, it was the combining element which made the building firm. Without the sound sentiment of the people, which was always drawn into the discussion, there is the too flimsy construction of facts. By analogy, it would have been almost impossible to keep it together.
Q. Witness, do you know the connection of the Reich Supreme Court to Paragraph 2? Did you follow it? Do you know that the Reich Supreme Court in the application of the new Paragraph 2 was not only hesitant, but often applied it in favor of the defendant?
A. In many circles of judges, also in the Reich Supreme Court, this method of analogy was applied with special precaution.
Q. Do you know, for instance, that the Reich Supreme Court, on the basis of Paragraph 2, had Party offices and officials of the Party and of its affiliated organization, put on the same level with authorities and civil servants in order to subject these people to the increased jurisdiction of civil service law?
A. Yes. I remember decisions of this kind. Anyway, individual courts judged cases of corruption within the party absolutely correctly.
I already mentioned a case this miming which lead to the insult of the judge by Stricher. I would like to add to this that according to the report of this judge, whose promotion was just about the come through, he found it was prevented because of this.
Q. Witness, as presiding judge, you read the Southern German Legal Journals, do you not?
A. Yes.
Q. Is that a good journal?
A. Yes. It is.
Q. Did you happen to read the article of Professor Maier about the prohibition of analogy in the present German legal code.
A. No. I did not read it yet.
Q. I want to read only one sentence. It is a question of the former jurisdiction, up until now, in which there is analogy used.
Paragraph 2 reads as follows: "Real misuse, which however, without amendment was forced, can be found only in the extension of the Nurnberg laws which are despicable in themselves." The author of the article believes with the exception of this one point is not objectionable. Would you agree with him?
A. I do not have the survey of the whole jurisdiction. I would have to have it in order to answer this question. I have made some remarks about the dangers, and about the methods which it offers.
Q. Thank you very much.
I return, again to the direction of your jurisdiction, the guidance of your jurisdiction, so-called. You mentioned especially the guidance conferences. They are conferences between the Prosecution and the judges with the President of the District Court of Appeal about cases.
Do you believe, Witness, that a judge could have avoided such guidance conferences at the time. Do you think he could have said he did not want to take part in these conferences? In other words, what do you think would have happened to such a judge?
MR. LaFOLLETE: It may be within the range of cross-examination, I think in any event, it may appear to be within the range of cross-examination. I am of the opinion that this question, in any event, would only elicit testimony by way of cross-examination other then direct examination which would be considered a mitigation when we consider the acts of a specific judge who may be in the dock.
Certainly the previsions of the law under which we operate do not relieve a man from responsibility because he occupies a position of judge. For that reason, I think the question is not material or does not seek to elicit anything which is material, and does not constitute proper cross-examination.
THE PRESIDENT: The objection will be sustained on the ground that this matter has been covered by previous questions and answers.
BY DR. SCHUBERT:
Q May I ask you the fallowing in regard to this point. Witness, on account of the fundamental difference between the German trial procedure and the American trial procedure, it seems important to me that if a judge came to a guidance conference of that kind, he had the following possibilities open to him--and perhaps even the duty to inform himself about the case to be discussed by means of a complete file of the case.
A. I think that is certain.
Q Did the judge, therefore, know the case already?
A Yes.
Q Thank you. Finally, I want to ask you: In your direct examination, you made certain statements to the effect that justice officials among then also judges in Berlin, knew about certain acts of the SS, the SD, and the Gestapo, about conditions of the concentration camps, etc., or that they must have known about it. Did I understand you correctly that your testimony was limited only to the conditions in Berlin?
A I know only about it in Berlin.
Q Thank you. I have finished my cross-examination.
CROSS EXAMINATION BY DR. DOETZER:
Q Dr. Doetzer for the defendant Nebelung. May it please the Tribunal, I ask for permission to continue the cross-examination. Witness, you have been described by the prosecution as an expert on legal matters. Therefore, I cannot help but refer back to your professional development.
Do you know, in an official way, one of the defendants? Did you know him in your official capacity?
MR. L. FOLLETTE: Certainly with this number of defendants in the dock, I think it's an imposition. It would be more proper to ask him which defendant he has in mind. I think it would be a more clear direct examination. By asking, "Do you know one of the defendants," is not in my opinion, very good cross-examination. He may know all of them or know of all of them.
THE PRESIDENT: Since the witness has had an opportunity to look over the different defendants in the dock and is able to answer the question, I don't see any reason why he shouldn't be asked the question. I don't know what counsel has in mind, of course.
BY DR. DOETZER:
Q I am posing the question whether the witness knows one of the defendants or all of the defendants, whether he met them in an official capacity.
A I did not meet them personally. Did you mean personally?
Q My question was clear. Did you meet them in an official capacity?
A No.
Q May I continue now? Witness, do you know one or all of the defendants personally?
A Personally? No.
Q Do you know about the journalistic activities--the writings-of one or all of the defendants?
A Of course.
Q For example, the writings of the Defendant Schlegelberger?
A Yes.
Q Thank you. Are you, in the legal field, active as a writer?
A No.
Q You mentioned, witness, that you had written an article in which you had asked for the abolishing of the death penalty. May I ask you where this article was published?
A If I remember correctly, in the Berliner Tageblatt, (Berlin Newspaper.)
Q That is not a legal journal, but a newspaper.
A Yes, that is apparent from the question.
Q In a legal respect did you publish anything in other newspaper?
A There may have been one or more articles in the course of time, but I don't remember it; it wasn't very important; it wasn't very regular.
Q Witness, in direct examination you mentioned that during your career as prosecutor and as local counselor; you had been employed in those two capacities. May I ask you when you conducted tho last proceedings as judge?
A In March or April, 1930, before the Nazi time.
Q May I ask you whether you conducted any judicial proceeding of any kind after 1933? Until the collapse of the Third Reich.
A No.
Q Even not in your capacity as government counselor?
A No.
Q Not even -
A I was an arbitration judge, in the arbitration tribunal, but that was before 1933, from between 1930 and 1933; the Deutschen Theater, Lessing Theater, in Berlin; I acted in that capacity two or three times.
Q Thus, you wore not with administrative tribunal.
A No.
Q May I then ask you which fields you worked on in the local courts?
A Penal procedure.
Q In Berlin were the penal procedures filed according to letters, according to letters of the alphabet, or according to the field, subject matter?
A If I remember correctly, at that time it was according to the letters of the alphabet; I cannot say that with absolute certainty any more.
Q I can understand that. Witness, would you please describe to me what activity you as legal counselor after 1930 carried on in detail after 1933. You already described it in detail, but I am concerned with the details.
A I was concerned with theaters.
Q Before 1933, too?
A Yes.
Q When you had been removed from your original position, what activities did you carry on in the police department?
A The traffic division, legal advisor on traffic matters; later when there were lone matters from the local district, construction of waterways, strike matters; everything that was concerned with the legal department of the waterways.
Q Were you an ordinary legal advisor, or a special one?
A Regular advisor.
Q Then, you told the prosecutor in the direct examination in September 1935, on the basis of paragraph 6 of the Civil Service Law you were dismissed. I would like to ask you what was the content of that paragraph.
MR. LA FOLLETTE: I think he gave that yesterday; I don't know what that has to do with this line of questioning. I object to the questioning. I have no objection to counsel questioning the capacity of any export witness, but I think this is irrelevant.
DR. DOETZER: I believe that the question about the context of paragraph 6 has not been answered at all. However, I will be glad to be instructed; I do want to say with absolute certainty that I for one did not hear it. I would like to point out that this question was put by me with the intention to show why the witness may have been dismissed.
THE PRESIDENT: We will save time if the witness at the moment can give us the contents of paragraph 6 by virtue of which he was dismissed, let's have it stated; otherwise, we will pass to some other question.
BY DR. DOETZER:
Q Witness, may I therefore repeat the question; I ask you to state the contents of paragraph 6 of the law for restitution of professional civil servants, on the basis of which you were dismissed in the year 1935.
A The exact wording, I cannot quote at the moment.
Q May I ask you to give me the meaning of that paragraph?
A Official civil servants may be retired, if it is necessary for the reconstruction of professional service. I don't know the exact wording any more, but you can find it out easily.
Q I don't want to do that at the moment; I don't think it would be fair if I would go over now and read the paragraph to the witness, and would have to show him that it contains something quite different from what impression he has. Witness, in the direct examination, or in the cross-examination you stated that you were a member of the SPD, the Socialist Party of Germany, and the Association of judges, the Republican Association of Judges. Could you tell me when you were a member of the Socialist Democratic Party of Germany and for how long you have belonged to tho Republican Association of Judges?
A Since 1927 in the Social Democratic Party, and the Judges Association soon after it was founded; I don't remember the year.
Q In the Republican Association of Judges did you have a leading position?
A No.
Q Did you in the Social Democratic Party of Germany distinguish yourself as a jurist and did you put yourself at the disposal of the party as a lawyer?
A No. I just remember that in a journal, which the representative Heilmann published, I wrote about penal procedure, and in view of my experiences in the central office for the fighting against indecent writings, which was part of the legal office, and as director of the office for defamatory literature.
Q When did you leave the Social Democratic Party of Germany?
A It was after the decision of the Reichstag; at that time I spoke to the local leader, whose name I don't remember and together with another friend I told him that that we were leaving formally, and at the same time that we felt we were still a part of the party. At that time he accepted this declaration expressly.
Q Perhaps you can tell the Tribunal and me in what year this happened? Only in order to clarify it.
A 1933.
Q 1933?
AAfter the enabling act of 1933.