Therefore, the following orders have been given upon the order of the Fuehrer in agreement with the Reich Minister and Chief of the Reich Chancellory, the Reich Minister of the Interior and the head of the party Chancellory:
I Court martinis are to be established in Reich defense Districts which are menaced by approaching enemy.
II The court martial consists of a judge of a criminal court as president and of a member of the political leader corps, or of a leader of another structural division of NSDKP and of an officer of the Wehrmacht, the Waffen SS or the police, as associate judges.
The Reich Defense Commissar appoints the members of the tribunal and designates a state attorney as public prosecutor.
III The court martials have jurisdiction for all kinds of crimes endangering the German fighting power or undermining the people's defensive strength For these proceedings, the regulations of the Criminal Procedure Law will be applied.
IV The sentence of the court martial will be either death, acquittal or commitment to the regular court.
The consent of the Reich Defense Commissar is required. He fives orders for the time, place and kind of execution.
If the Reich Defense Commissar is not available, but the immediate execution is indispensable, the public prosecutor is authorized to act in his place.
V The necessary regulations for amendment, changes and execution of these decrees are issued by the Reich Minister of Justice in agreement with the Reich Minister of the Interior and the Chief of the Party Chancellory.
VI The decree comes into force immediately upon its announcement on the radio.
(signed) Reich Minister of Justice THIERACK" Berlin , 16 February 1945.
MR. WOOLEYHAN: Turning now to Document Book 3-C at page 50 which is page 49 of the German there appears to be a sworn affidavit reading as follow -- I neglected I believe, to state that this is Document NG-550:
"I, Dr. Karl SCHROEDER, Senior Public PROSECUTOR, retired, born 3 May 1893 in Holztrabach, give the following affidavit under oath:
"At the instigation of the Reich Minister Thierack there were installed in February, 1945; Drumhead Courts Martial in districts which were menaced by the approaching enemy. The Courts Martial were competent for every crime which had not yet been judged. The Nuremberg Court Martial was set up by Gauleiter Holz and consisted of the Director of the District Court OESCHEY as presiding judge, and of Gauinspektor HABER-KERN and a Major in the Wehrmacht - name unknown to me - as assistant judges, On 2 April, I was called to the Gau office there I was introduced to those men who made up the Court Martial for the Reich Defense District of Nuremberg. I was told that I was appointed as a prosecutor. Gauleiter Holz asked us to come to his office and gave us a short speech, explaining that the main point was to stop the American advance, one could count upon introduction of new weapons, and that he expected that the Court Martial would give the necessary support to the Army at the front by applying the severest measures. Then we were administered the oath acccrding to the decree of 16 February 1945; regarding the formation of the Courts Martial. HABERKERN told me then that Holz had mentioned that the first session would take place the next day. I explained to him that this was impossible for technical, reasons, as I would first have to examine the proceeding in order to see whether it was a case for a Court Martial trial. The case of Mongelas was to be tried as the first case.
The records, which originally had been transferred to the People's Court, were reported as having never been received there. This , which was the most difficult in my practice, had thus to be tried by the Court Martial because a decision by the People's Court could no longer be expected and because the Gauleitung pressed for a quick decision of this matter. The trial, which took place April 5, was conducted without defense. It was the duty of the president to summon the defense counsel. When I asked OESHCEY about it he told me that the defense counsel could not be summoned as the offices of the defense attorney EICHINGER had been destroyed, and he had not given his new address. Then he continued to say that he would conduct the trial even without defense counsel,because the loyal prerequisite for a trial without defense counsels did exist. I believe that I might note in this connection that a regulation was issued in 1944 or 1943 which decree that the appointment of a defense counsel was net necessary in cases where the circumstances were entirely clear.
If I may interpolate a moment, the regulation to which Schroeder refers at this juncture is the regulation just previously read from Document book 11 "I do not remember whether Mongelas had inquired about his defense counsel, but it could have been possible.
The witness, an SS Untersturmfuehrer, gave evidence that from an adjoining room he had heard a conversation between Mongelas and a lady which contained statements against the State and insults against the Fuehrer. Mongelas was sentenced to death and executed the following day. Mongelas, who no doubt would have been liberated by the Americans, was indicted on the orders of the leading Party member Holz and sentenced to death by Haberkern and Oeschey.
"I declare that it is the truth and it was made without coercion. I have read, signed, and sworn to it.
"Nurnberg, 20 December 1946, Dr. Karl Schroeder.
Signed and sworn the same date, "Henry Einstein, OCC."
DR. SCHUBERT (Counsel for the defendant Oeschcy): May it please the Tribunal, confronted with this document, I should only like to make this reservation, to ask to be permitted to cross-examine the witness when the time comes.
THE PRESIDENT: You will be given that right, of course.
You may proceed.
MR. WOOLEYHAN: The prosecution offers into evidence as Exhibit No. 148. the document just read, NG-550.
THE PRESIDENT: What about number 715? That was 148, as I understood it
MR. WOOLEYHAN: Did we neglect to offer that, Your Honor?
THE PRESIDENT: It was not offered.
MR. WOOLEYHAN: Document 715 is in document book II, Your Honor, which was offered into evidence some days ago.
THE PRESIDENT: It is treated as part of the exhibit offered some days ago?
MR. WOOLEYHAN: Yes, sir.
THE PRESIDENT: Very well.
MR. WOOLEYHAN: Turning now to page 53 of document book III-C, which is page 51 of the German, we find there NG-653; a sworn affidavit:
"I, Dr. Hermann MUELLER, retired prosecutor, Aschaffenburg, Lindenallee 14, declare herewith under oath:
"I was born on 4 May 1910 in Kirchheimbolanden. I passed the major state bar examination on 22 May 1936 in Munich. On 1 July 1936, I was first employed by the Justice; administration in Kulmbach. In my probational period, I served as assessor in Lamberg, Schweinfurt and Wuerzburg and on 1 September 1937, I was transferred as a court assessor to the Public Prosecutor's office in Nuernberg-Fuerth. There I was appointed as Prosecute on 1 July 1939. From 18 July 1939 until the end of March 1943 I performed 'defense service'. I was released from this due to a heart ailment. I resumed my work at the office of the Public Prosecutor on the first of April 1943 and worked in a department where the indictment was prepared for the Special Court. Neither I, nor the other prosecutors of the Special Court, had the right to ratify essential decisions. I was concerned with the preparation of the indictment and represented the prosecution at the trial during which I was bound strictly by the instructions signed by the Chief Dr. SCHROEDER, and reviewed by the Superior Court officials, General Public Prosecutor Dr. Bems and the Minister of Justice.
"I joined the party in 1937 and had been a member of the SA since 1933 (Rottenfuehror).
"I have to state the following concerning the former Chief justice of the District Court and president of the Special Court Dr. Rudolf OESCHEY:
"I know OESCHEY only through my professional relations with him. I felt that his methods fully conformed with the ideology of the Third Reich, and that he condoned and even welcomed wholeheartedly the increased severity which became a characteristic trend in the war-time criminal jurisdiction. Most shocking, however, was his brutal, cynical behavior toward the defendants in many sessions. He frequently insulted the defendants and presented the crimes to them as if these crimes were already a proven fact. His behavior was often so extreme that one might well believe he was a psychopathic case. The abusive insults which he inflicted upon the defendants were, to the highest degree, unworthy of a court trial.
He wielded such influence over the form of the administration of justice through his close party affiliations that the other officials of equal rank at the Nuernberg Administration of Criminal Justice were almost always forced to yield. Any opposition from his subordinate colleagues had little prospect of success. I considered OESCHEY's juridical knowledge inadequate.
"To emphasize OESCHEY's inhuman and reprehensible behavior, I would like to mention the following cases, in which I participated as prosecutor."
Skipping to page 60, which is page 57 in the German book, commencing nine lines from the bottom:
"Concerning" the case of Mongelas, it must be pointed out that this was a case of political extermination, which was handled in a most hideous fashion. As the criminal export on this case, I transferred the case to the People's Court. Mongelas had an appointment with a woman, with whom he but recently became acquainted, in the Grand Hotel, Nurnberg. He went with this woman to a hotel room where they began a discussion of art. The woman subtly directed the conversation into political channels, whereupon Mongelas vehemently expressed his hate of the existing system. This conversation was overheard by an official of the Gestapo, an SS lieutenant, in the next room. It was stated in the declaration as if this Gestapo man had been an accidental witness to the conversation. Considering the case as a whole, this could not have been true. Rather, the whole affair was planned from the beginning as a plot to remove Mongelas, just before the collapse. For quite some time I heard nothing more about the case. Then, suddenly, in the first week of April, I learned that Mongelas would be tried before a court martial. I was extremely shocked, but Dr. Schroeder assured me that the case would proceed in the proper manner. When I objected that Mongelas' defense counsel, Dr. Eichinger, had not been informed of the case until very recently and that I, in ignorance of the facts of the case, had misinformed him, Schroeder told me Eichinger was to be informed It was the duty of the Presiding Officer of the Military Court" -- that is, the Court Martial.
If I may interrupt, "Military Court" is a mistranslation. The original affidavit reads "Standgericht", which is Court Martial.
"It was the duty of the Presiding Officer of the Military Court Martial, Ocschey, to summon the defense. His failure to do this was a serious legal infringement. It is further proof of Oeschcy's cooperation and complicity with the Gau authorities in their scheme to eliminate a political enemy just before the complete collapse. I learned later that Ocschey did not study the criminal incriminating documents, but was guided in his actions much more by the Gestapo reports. I consider this case a great crime. It was committed without considering the impending defeat of Germany and with the intention of forcing the people into stubborn opposition, causing more insane bloodshed.
"Furthermore, Mongelas had already been in prison for a long time. The crime occurred so long ago that, by this time, it could in no way have influenced the will of the people to resist. A Court Martial would only have been justified under these circumstances, however."
Signed, "Dr. Hermann Mueller, Prosecutor, Nurnberg; 15 January 1947.
Signed and sworn the same date, "Henry Einstein, OCC."
JUDGE BRAND: May I ask a question before you exchange places?
MR. WOOLEYHAN: Yes, Your Honor.
JUDGE BRAND: In Exhibit 148, a man with a very similar name, differently spelled, is mentioned. Is it the same man?
MR. WOOLEYHAN: It is the same man, Your Honor. The spelling in Exhibit 148 is a typographical error.
JUDGE BRAND: I see, thank you.
DR. SCHUBERT (Counsel for the defendant Oeschcy): May it please the Tribunal, with respect to this document as well, I should like to make the reservation to cross-examine the witness at the proper time.
THE PRESIDENT: That will be granted.
MR. WOOLEYHAN: The prosecution offers, as Exhibit 149; document NG653.
THE PRESIDENT: It will be received in evidence.
MR. KING: Turning now to Document NG 513, which begins on Page 35 in the English book and Page 45 in the German. Due to faulty mechanical assembly of the pages of this document, it will become necessary for coherent presentation to skip around. However, it will not be hard to follow.
A brief word describing what this document purports to be. In 1946 a post war investigation was conducted of activities of the Nuremberg Special Court, This investigation was related in no way to the preparation of the case at bar, but was conducted entirely by the German judicial authorities themselves independently of the American occupation. This document came to us as a result of that independent investigation. That explains the dates appearing throughout the document, which are 1946.
Beginning on Page 38, which is 37 in the German book, we find a letterhead "District Court Nuremberg Investigating Judge, Testimony in the investigation of Oeschcy and Dr. Schroeder for perversion of justice, etc., dated Fuerth, 16 August 1946," In the presence of various other German judicial officials listed in the lefthand margin.
"Summoned. The witness was notified of the subject of the interrogation and had to declare solemnly that he would speak the truth and was interrogated as follows. The person concerned; Adolf Soeldner, 59, Landgerichtsrat in Nuremberg.
"The matter concerned; I had nothing to do with the proceedings in the case against Count Montgelas. I was simply appointed as an air raid warden and in the forenoon of 5 or 6 April 1945 happened to be in the air raid shelter together with about ten other employees and officials of the court house because of an air raid alarm. Among the people present in the air raid shelter was also Oeschey, then president of the court martial, and then Chief Public Prosecutor Dr. Schroeder. I was standing near then and overheard Oeschey saying to Schroeder, as for as I remember:
"Now we will go over and shoot the little count." This disrespectful way to talk about a matter of such serious nature disgusted me. I discussed the whole case once with Dr. Ferber. I, personally, have not observed anything more. Read and signed, Adolf Soeldner, District Court. Signature, Stiegler, court employee."
Turning now to Page 35, which is Page 45 in the German, there is found the letterhead of Rose Marie Countess Montgelas, Castle Kreuth, Post Office Heideck, dated the 24th of August, 1946. This latter is stamped received on the second of September, 1946, Prosecuting Authorities of the District Court, Nuernberg-Fuerth.
"Referring to: Your letters of 17 June 1946 and 5 August 1946. Concerning: Oeschey and Dr. Schroeder, accused of defeating the end of the law, etc."
Skipping now to Page 36, which is page 46 in the German, we will read an excerpt from this letter of Countess montgelas. "On 13 April --" And if I may interpolate here, she obviously refers to 13 April 1945, which date occurs on the first page of the letter -
"On 13 April I learned from the "Fraenkische Tageblatt" that my husband had been executed.
"On 16 April I had the opportunity to enter Nuremberg in a German army vehicle. In the courthouse I talked with Dr. Schroeder who, among other things, told me that my husband's case had been the most serious political case of his whole practice, and therefore one could not wait for a decision from Berlin. I was not to be given any information on the disposal of the body of my husband, because he had died a dishonorable death."
Skipping to the signature, it is signed "Countess Montgelas." 987 Skipping now to Page 40, which is Page 32 of the German book, there is found a similar interrogation investigation to one read previously.
There is the letterhead of the District Court, Nuremberg, investigating judge.
"Testimony in the investigation of Oeschey and Dr. Schroedcr for the perversion of justice. Fuerth, 16 August 1946. Being summoned, the witness w s notified of the subject of the interrogation and had to declare solemnly that he would speak the truth and was interrogated as follows:
"The person concerned: Dr. Wilhelm Eser, 39 years old, married, in Nurnberg.
"The matter concerned: At the time when Count Montgelas was brought before me I was investigating judge and judge in the local criminal court." Skipping now to page 42, which is Page 34 in the German, Investigating Judge Eser goes on to testify:
"Some time after the arrest of Count Montgelas I was visited by the Countess, who asked me for information concerning the probable future development of the case. She wanted to be informed so that she would not, one day, have to learn from the papers that her husband had been executed. I explained to her that, judging from the nature and importance of the utterances, I thought that the People's Court would have to deal with it; that I had passed the case on to the Office of the Chief Public Prosecutor at Nuernberg and from there it would be referred to the Chief Public Prosecutor with the People's Court, due to the nature of the offense. Furthermore I explained to the countess that it would, according to my observations, take at least six to eight months until a date for a session at the People's Court could be held. The Countess said that she was quite relieved, since her main object was to gain time. Judging by the situation at the fronts, one could be almost certain that events would cause this case to be forgotten, and the People's Court would actually no longer be in the position to render a verdict.
"In the meantime, I do not remember exactly when, martial law had been declared in our area and court martials were established. One day I heard that Count Montgelas had been executed the previous day. At that time I did not think this possible. I was of the opinion that the summary court martial was not competent to deal with this case, because the offense itself had been committed a considerable time before the declaration of martial law. I think I discussed this matter with other judges, but I do not remember with whom. The next day, or very shortly after, the news that Count Montgelas had been sentenced to death by Court Martial and had meanwhile been executed, could also be read in the papers.
"I saw Countess Montgelas a second time, in the late morning of the 16th of April 1945, the day on which the American troops entered Nuremberg. She allegedly wanted to have the body of her executed husband for burial. I asked her to see the Chief Public Prosecutor about this. Personally, I was deeply moved, as I was aware that through my former statements I had given her hope and that now the real course of events had justified nor fears."
On Page 43 Dr. Eser reads and signs the statement, and it bears the usual authenticating marks of other court officials.
Turning now to Page 44 of this same document, which is Page 38 in the German book, letterhead of the Chief Public Prosecutor at Nuremberg-Fuerth, dated Ebermannstadt, 27 June 1946. Minutes. In the presence of local court judge Dr. Geiger as judge and Justice Secretary Straetz as recorder, having been summoned, the witness mentioned below appeared before the judge, who knows him.
"Having been summoned, the witness mentioned below appeared before the judge, who knows him. He was admonished to speak the truth and was instructed accordingly. The person was Eichinger Josef, retired lawyer, married, 59, present residence in Pretzfeld."
Skipping to the bottom of the page, Josef Eichinger testifies as follow "Approximately in February , 1945, Countess Mongelas asked me to take up the defense of her husband.
He was then in the sick-ward of the prison for solitary confinement in Nuernberg. I discussed his case with him, going into all details; I also discussed it with Dr. Mueller who at that time was the expert at the Office of the Assistant Public Prosecutor who handled the matter. The matter was the following: Court Mongelas had been staying at the Grand Hotel in Nuernberg and had met there, among other people, a lady whom he had known far some time. In the course of a conversation he told her that he was also an artist and that he had some of his drawings, probably cartoons, in his room. He then showed the lady, whose name I do not remember, some of these drawings in his room. The conversation turned toward politics and some insulting remarks about Adolf Hitler and prominent party leaders were made. In the opinion of the Prosecution, this was not only an offense against the so-called Law against Malicious Political acts or Insults to the State, but it also involved the criminal act of undermining the Morale of the German Wehrmacht.
Finally, Dr. Mueller, the prosecutor, told me that he recognized the competence of the People's Court , and therefore had submitted the record of the case to the Chief Public Prosecutor of the People's Court for a decision. I asked him to inform me immediately after the record was returned, respectively, after receiving the decision of the Chief Public Prosecutor. He promised me this and I was completely reassured.
"In March and April, 1945, a considerable number of my clients were held for investigation in prisons in Nuernberg. I used to visit them regularly. When, on the 10th of April, 1945, in the office of the prison, I asked the duty officer for a permit to visit Count Mongelas, I noticed that he could not find the files, whereas, on former occasions they had always been right at hand.
Finally his assistant who had helped in the search, said that perhaps they were still downstairs. At this moment the director of the Nuernberg prison, Paulus opened the door of his adjoining office and asked me the object of my visit. I told him that I had come to see Count Mongelas and that I had asked for an interview. Thereupon, he, Paulus, looked at me with a peculiar expression and said, "Would you please step into my office for a moment?" There he told me the following.
"A main session of the court martial had taken place at about 1500 hours on the 5th of April, or five days are. Count Mongelas had been summoned before this court martial the same afternoon at 1400 hours, and had been given a death sentence. The sentence had been executed by shooting on Friday the 6th of April as the Deputy Gauleiter Holz had made no use of his right to pardon."
Skipping to Page 47 which is page 14 in the German text, this same witness, Eichinger, goes on to say:
"As far as I remember the court martial convened on this Thursday, 5 April 1945 which was the first day set for the trial. The last session I know of, was on Saturday 14 April 1945; thus on the last weekday before the American Army began to shell Nuernberg. Then as today, I had the feeling -- founded on newspaper notices and talks with lawyers and law officials -- that the deputy Gauleiter Holz had imposed a court martial law at the eleventh hour in order to reinforce people's will of resistance-as one expressed it then. His adviser in those matters, District Court Director Oeschcy who, at the same time, was a member of the Gaustaff. Evidently Dr. Oeschy and Dr. Schroeder had selected from the files of the Office of the assistant Public Prosecutor those cases which, they thought, should be dealt with by the court martial. In doing this they must have come across the Mongelas case."
Skipping to the next paragraph:
"Then as today I have regarded the verdict of the court martial against Count Mongelas as an injustice, for the following reasons:
"First of all the court martial was not the competent authority because the files, according to the prosecutor Dr. Mueller, were with the Chief Public Prosecutor at the People's Court, at least there was a query, i.e. a report with the question whether the case Mongelas should not be dealt with by the People's Court.
"Furthermore, I am of the opinion that a summons issued at 1400 hours to appear at 1500 hours before a court martial is an offense against justice. Pith such short notice, the defendant is robbed of any possibility to prepare himself for the main proceedings and thus to defend himself adequately.
"Also I am convinced that the defense counsel could have been notified and invited if one had made a genuine attempt to do so, but I know that District Court Director Dr. Oeschey was against the defense counsel. It was quite evidence that in many cases he considered a defense as superfluous.
"The fact that one did not regard it as necessary to notify the competent representative of the Office of the assistant Public Prosecutor, Dr. Mueller, who was dealing with the case, I consider also as an offense.
"If I remember correctly, Chief Public Prosecutor Dr. Schroeder also said that no witness had been summoned for the proceedings. This would have been essential for the reason that the statements of the SS-Fuehrer who had overheard the conversation at the Grand Hotel were important points contradictory to the statements of Count Mongelas, as he told me. I had, therefore, beforehand already proposed to summon the lady with whom Count Mongelas had carried on the conversation in question, as a rebuttal-witness against the SS-Fuehrer.
"Finally, from my conversations with Count Mongelas I had gained the impression that he liked to make abusive, though quite correct, remarks about the great personalities of the so-called Third Reich, but that, on the whole, he led a secluded life and that he was quite harmless and net at all dangerous. This is another reason why I have always considered the death sentence against Count Mongelas as not only much too severe but as an obvious injustice.
"If I had been notified and not been deprived of the possibility to defend Count Mongelas, the death sentence or at least its execution might have been prevented."
Skipping to the signature, it is read and signed by Eichinger with an authenticating signature of Straetz.
DR. SCHUBERT: (Dr. Schubert for the Defendant Oeschey) May it please the Tribunal:
I protest against this document. We are confronted, in contrast to affidavits which have been submitted before, with the result of an investigation which was conducted by German authorities. The documents, themselves, were written in 1946. And in my opinion, the defense is put at a disadvantage because it is not in a position to cross-examine these witnesses who have made statements before German authorities.
Furthermore, I should like to point out that not one of these statements has been sworn to by the witnesses. These are only statements. Theywere not made under oath.
Apart from that, as I could see from the criminal document, the document is incompetent. I have here before me in the original document, the pages 15, 16, 17 and then 10, and 11, then also 19 and 20. That is all that was apparently taken, from a much more extensive file. That fact, the fact that is incompetent in my opinion reduces the relevancy of this document. I point to the last part of the document. That is the letter by Countess Mongelas. It is page 45 of the German Document Book. According to that it may be possible to identify the page in the English Document book. It is page 35 in the English Document Book, Your Honor.
This letter of Countess Mongelas, contains at the very beginning, a reference. It says there "Your letters--" that is to say, the letters by recipient of this letter, "-- of 17-6-46 and of 5 August 1946--" These letters have not been produced yet. In my opinion, however, they are necessary to understand the whole case. Therefore, in this connection, I take the liberty to call attention to a ruling which was passed by Court Number 1 on the occasion of the presentation simple letters.
It ruled that when such letters are presented, the letter which was the cause for the present letter had to be presented. Those are my general objections against this document. And I also want to emphasize one detail. I refer, again, to the last part of the document, the letter by Countess Mongelas. This is a document which has not been taken in the form of a transcript or minutes. It can not even be seen from the letter to whom it is addressed, although in the beginning, there is a stamp "Received 2 September 1946, prosecuting Authorities of the District Court, Nuernberg-Fuerth. But whether this prosecution was really the recipient of that letter can not be seen from the letter itself.
And finally, I point to the testimony of the counsel Eichinger, the last page of that testimony, in the German Document Book on Page 4, from which it can be seen that that statement is signed by Eichinger. That is the man who-made it, and then, by tho man who acted as a cler, that is Straeta. And that Straetz was only a certifying official, that is, a clerk of the court, can be seen from the heading of that document, on Page 38 in the German book in which it is stated under the word "Present": First, the judge, Dr. Geogor, and then the certifying official, Straetz. Now, in order to have a regular transcript, a regular protocol of a German Court, it is necessary, under all circumstances, that the signature of the judge be affixed. It is not sufficient if that transcript is only signed by the certifying official and by the person who has made the statements. Therefore, may I say in conclusion, my objection is directed against the document as a whole; for one, because the defense is put at a disadvantage for not being able to call the witness for cross-examination; secondly, because there are no affidavits presented; and finally, because the probative value is reduced by the fact that the document is incomplete.
My objection also is directed against the letter by Countess Montgelas, in particular, because this is a simple letter and no more; that it cannot be seen from it to whom it is addressed.
My objection goes also against the testimony by Eichinger because it has not been signed as it should be by the judge conducting the interrogation.
MR. WOOLEYHAN: May it please the Court, the prosecution fails to see, first of all, why the defense is placed at any disadvantage to examine witnesses in connection with this document than they are with regard to any affiant with whom per mission has been granted them in the past to cross-examine.
True, it will not be cross-examination on their part insofar as the prosecution has not directly examined them, but the defense is certainly at liberty to call whatever witnesses, in connection with this document, that they so please. I can't see any hardship there at all.
Secondly, with regard to whether or not this document comprises affidavits, the prosecution did not offer them as affidavits. The prosecution offered them at face value for whatever they might be worth, but we do say this, aside from the letter by Countess Montgelas, which on its face is nothing more than an officially solicited letter, the other three documents read have more probative value than an ordinary signed statement for the reason that they were made officially in a judicial manner before judicial authorities, and whether or not the language in them constitutes an oath, the prosecution cannot for one, determine, but at least they are not in the same category with mere signed statements.
Third, with regard to the contention that this document is incomplete and comes from some larger file, we have this to say: we have offered in this document its component four letters, or rather one letter and three official investigation reports. That is all the prosecution was able to secure. Each of the four items are complete in themselves. If the defense cares to undertake to furnish any other portions of the investigation of the Montgelas case, if such other investigations exist, the prosecution would indeed welcome it. We, for one, were unable to find them.
I think that takes care of it.
JUDGE BRAND: May I ask counsel a question? What is the bearing, if any, of the provisions of Rule 21 of the Rules of Procedure, with reference to the manner of taking statements in lieu of an oath, which rules were adopted by this Tribunal, and which I understand were made pursuant to mutual agreements between prosecution and defense counsel.
Does that apply to a case of this kind?
MR. WOOLEYHAN: Your Honor, would you please refresh my memory on the phrase in Rule 21 to which you refer? I haven't it with me.
JUDGE BRAND: It's rather long. I assume that counsel have the Rules of Procedure.
MR. WOOLEYHAN: Is it the wish of the Tribunal that I should read this rule?
THE PRESIDENT: It should be read so that defense counsel have the benefit of this discussion.
JUDGE BRAND: I am not suggesting that it does apply. I am asking if you think it applies.
MR. WOOLEYHAN: I am reading now from Rule 21 of the Rules of Procedure adopted by Military Tribunal III. Rule 21 is entitled: "Procedure for obtaining written statements."
"Statements of witnesses made in lieu of an oath may be admitted in evidence if otherwise competent and admissible, and containing statements having probative value, if the following conditions are met:"
If the Court please, it's the prosecution's position that this rule has no application in the present case for the reason that the document sought to be introduced was not prepared nor gotten up or unearthed or created by the prosecution or any of its agencies. It came to us out of normal channels as an unsolicited offering from German investigating authorities after they had completed their preparations of it, unknown to us. It, therefore, we submit, must be treated as a captured document, fortuitously captured if you like, but nevertheless in the same category.
DR. SCHUBERT: (Attorney for Defendant Oeschey) May it please the Tribunal, may I answer this briefly.
Rule 21, which unfortunately was not known to me up until now, describes that witnesses have to make their statement under oath. Then, in my opinion, this also applies to the document in question because it doesn't make any difference whether it is an investigation by German authorities or by the Prosecution of this Tribunal, because the German authorities also could have received these statements under oath. But furthermore, I should like to object also to this document being put into the same category as captured documents. We can deal only with those of course which have been received before the end of hostilities, but not with those which were made a year and a quarter after the termination of hostilities.
MR. WOOLEYHAN: If the Court please, with regard to the last objection of counsel, the document in discussion obviously does not come under the truth and affidavit; its source is everywhere apparent from the face, and for any question as to its authenticity, both the Court and the Defense have no questions as to where it came from. With regard to the subtle indication by the Defense that evidence prepared after the and of the war is of questionable value, the Prosecution takes the point of view that doesn't bear discussion. I am also familiar with the fact that virtually every document in this case or any other case tried under the charter or Law No. 10 relics in a large measure on evidence either processed, secured, or gathered after the end of the war.
JUDGE BRAND: I should like to suggest that counsel for the defendant seems to have misunderstood Rule 21. He, apparently from his statement, construed it as requiring an oath, whereas the rule relates to statements in lieu of -- that is in place of an oath.