The Prosecution has several times spoken of him in that version deputy occurred several times in the documents today. I have not objected to that word because I thought that we were merely concerned with a wrong expression being used; but I would ask you that in the future, my correction should be given consideration. The introduction of this document, I have to raise an objection on account of the reasons I have stated before.
THE PRESIDENT: We are not impressed by those objections, and we will admit the document in evidence.
We will take our usual recess at this time.
(The Tribunal then took a recess.)
THE MARSHAL: Persons in the court room will please find their scats.
The Tribunal is again in session.
MR. LAFOLLETTE: If Your Honors please, I believe that tho last Document NG-136, which was admitted, was not given an exhibit number; that was offered as Exhibit No. 345.
THE PRESIDENT: That is correct.
MR. LA FOLLETTE: Document Book 5 B. The first document which is on page 62. In this Book, which has four parts - A, B, C and D, the numbering is different than that which we have been accustomed to. For some reason or other the Document Room numbered those pages conservatively through four subdivisions. I think the German is numbered the same way.
Document NG-131 is at page 62. There is a notation here, and I think it is correct, that it is identical with Document NG-136, Book 5 A, pages 58 and 59, so we will pass that Document.
THE PRESIDENT: You mean you arc not offering it?
MR. LAFOLLETTE: we arc not offering it, Your Honor. I am sure that I am correct, that for some reason or other there is a duplication of Documents.
Document No. 665 is a photostatic copy from tho Reichsgesetzblatt, of January 1942. If defense counsel want to look at it they may come now. That is an extension, an amendment to, or a supplement to, tho law against Poles and Jews, which is found in Book 2 at page 48 and 49, which amends Section One of the Act of December 4, 1941; 1941 Reichsgestzblatt, part One, page 759, which is Document Book 2, page 48; and also Section Three of the Act of December 4, 1941 is amended and Section Three is found on page 49 of Book 2. The prosecution offers as Prosecution's Exhibit No. 346, Document NG-665.
THE PRESIDENT: The Document will be received in evidence.
MR. LAFOLLETTE: Document NG-548 is a legal opinion prepared by the defendant Lautz, sent to the Ministry of Justice, dated 23 February 1942, and discusses a proposed amendment to paragraph 91, Section 2 of the German Penal Code to make it applicable in the East. This document runs from pages 66 to 71 in the English Book; 73 to 78 in the German. I would ask the court to indulge me in the desire not to have these documents road, to the extent, at least, of permitting me to read from page 68 in the English Book which is page 75 of the German Book, and would be the ninth line - at least as far as the English translation is concerned - and the beginning of page 3 of the original. What I an going to read, for the benefit of the interpreters, follows wording which roads as follows: "protection of racial Germans does not prove that paragraph 91, art. 2 Criminal Code should not be applied in every case." Can you follow me? Now, I read for the purpose of the record:
"On the contrary, I sec here a task for the courts, an opportunity to fill a gap in the law, a gap caused by state political reasons, by creating a law in the appropriate cases."
The prosecution offers as Prosecution Exhibit No. 347, Document NG-548.
DR. GRUBE (For Defendant Lautz): May it please the Tribunal. In order to clarify this matter I should like to state the following: The representative of the prosecution has stated that this Document was a legal opinion of the defendant Lautz.
As can be seen from the introduction to the document, the essential contents of the Document arc a letter of the Reichsfuehrer-SS, that is Himmler; the legal opinion by the Reichsfuehrer-SS, as can be seen from the document in our Document Book, can not be seen clearly enough in our Document Book as well as in the English Document, until page 76 of the German Document Book - that is, until the paragraph which begins, "I agree with the Reichsfuehrer-SS and the president of the People's Court."
I believe the prosecution will agree that only from this paragraph on the legal opinion by the defendant Lautz begins. All remarks made before that are from the Reichsfuehrer SS, and so is the quotation which has just been read by the prosecution.
MR. LAFOLLETTE: If Your Honors please, I am sorry if there may be some mistake on my part as to the interpretation of the document. I don't bare to quarrel about it. That is the difficulty we get into when we attempt to interpret documents. The document speaks for itself in whatever it says, and I offer the document as an exhibit. Certainly my opinion doesn't control what the document says.
DR. LINK (Counsel for the defendant Barnickel): I do not have any objection against the submission of this document. However, I should like to clarify a mistake which occurs in the address of the letter under discussion, the letter from the Reichsfuehrer SS to the Chief Reich Prosecutor at the People's Court. It says there: "To the attention of the Chief Reich Prosecutor, Dr. Branickel." The letter, as usual, was sent to the chief of that particular office. However, by mistake Dr. Branickel was mentioned as such. Dr. Barnickel was never Chief Reich Prosecutor at the People's Court.
I ask to be permitted to clarify this and will prove it further in my case in chief.
JUDGE BRAND: Just a moment. Is it your position that the letter went to the Chief Reich Prosecutor, or that it went to Barnickel?
DR. LINK: It is my opinion that the letter went to the Chief Reich Prosecutor at the People's Court.
JUDGE BRAND: You are net claiming that the name "Barnickel" was improperly placed on the document, are you? I mean, in fact Barnickel's name appears, doesn't it?
DR. LINK: Yes. By mistake, in writing the address, Dr. Barnickel was put down here as Chief Reich Prosecutor, or he was considered to be Chief Reich Prosecutor at the People's Court. However, that was a mistake.
JUDGE BRAND: Whether the mistake was in calling him Chief Reich Prosecutor or the mistake was in naming the Chief Reich Prosecutor as Barnickel still is ambiguous and uncertain.
DR. LINK: By mistake the defendant Dr. Barnickel was mentioned as the Chief Reich Prosecutor at the People's Court.
MR. LA FOLLETTE: I don't know whom it meant, but I would like to offer it.
The prosecution offers as Prosecution Exhibit 347, the document NG-548.
THE PRESIDENT: The document will be admitted in evidence.
MR. LA FOLLETTE: If Your Honors please, I would respectfully request the Tribunal to take, for one exhibit, book V-C at this time, and I would like to have the witness Lorenz Eitner sworn.
LORENZ EITNER, a witness, took the stand and testified as follows:
JUDGE BRAND: Will he be sworn in English?
MR. LA FOLLETTE: He will be sworn in English, and he will testify in English.
This relates to document 664-PS, for the benefit of counsel and the Tribunal.
BY JUDGE BRAND:
Q Do you solemnly swear that your testimony in the issue now pending shall be the truth, the whole truth, and nothing but the truth, so help you God?
A I do.
MR. LA FOLLETTE: The document 664-PS is found at page 160 of English bock V-C, and is found at pages 162 and 163 of the German book.
DIRECT EXAMINATION BY MR. LA FOLLETTE:
Q Will you state your name please?
A Lorenz Eitner.
THE PRESIDENT: Hill you have that spelled for us, please?
MR. LA FOLLETTE: E-I-T-N-E-R.
BY MR. LA FOLLETTE:
Q What is your present position, Mr. Eitner?
A I am head analyst for the Ministries Division of the Office of Chief of Counsel.
Q You are thoroughly conversant with the German and English language?
A I am.
Q Do you have in your possession there at the witness stand a copy of the photostatic -- I withdraw that -- one of the photostatic copies of the signature book which was used in the Ministry of Justice?
A No, I have that downstairs.
MR. LA FOLLETTE: I will interrogate the witness, but I believe I would like to have it.
BY MR. LA FOLLETTE:
Q You are acquainted with that document which has previously been admitted in evidence in this case?
A Yes, I am familiar with it.
Q And how long have you been employed in your present capacity?
A I have been employed in my present capacity since the beginning of August 1946.
Q And before that, were you employed in connection with the Chief of Counsel for War Crimes, or with the office prosecuting the case originally prosecuted before the IMT?
A No; prior to July 1946 I was not connected with the IMT.
Q All right. In your capacity you have examined a good many documents that came out of the Ministry of Justice, have you not?
A Yes, I have.
THE PRESIDENT: Will the witness raise his voice slightly?
THE WITNESS: Yes, sir.
BY MR. LA FOLLETTE:
Q And you have compared these signatures and initial signatures with the basic document which has been admitted as an exhibit and which I believe you new have in your possession, is that correct?
A Yes, I have frequently made such comparisons.
Q Now, with reference to the document NO. 664-PS, do you have a photostatic copy of that document in exhibit form in your possession now at the witness stand.
A I have before me a photostatic copy of document 664-PS.
Q I will ask you whether or not, in addition to the typewritten material there, you find on that document a stamp of the Reich Ministry of Justice.
A In the upper right-hand corner of the photostatic copy of FS-664, which I have before me, there appear two stamps: One, the square date stamp of the Reich Ministry of Justice, bearing the label "Reich Ministry of Justice," and the date, 17 March 1944, in addition to an indication that the document was submitted to Departments VII and IV; and besides this square stamp, there is the secret stamp.
Q On the document you have?
A Yes, on the document.
Q At the bottom of the document, do you find Roman figures? I mean, following the printed material?
A Yes.
Q Will you tell the Tribunal what those are?
A Following the typed signature on this document there are four Roman figures, III, V, VI, and VII. They are in the position of the document in which the departments of the ministry to which the document was to be routed are usually indicated.
Q Do you find, nearer the stamp of the Reich Ministry of Justice, initial signatures which you can identify?
A Yes. Immediately above and partially overlapping that stamp there are the initials of Thierack, and to the right of that initial, the initial of Klemm.
Q And when you used the language a while ago "secret stamp", I ask you whether or not you refer to the stamp which indicates that the document is secret.
A Yes, I do.
MR. LAFOLLETTE: At this time the Prosecution offers as Prosecution Exhibit No. 348 Document NG664 PS, and as part of the evidence in this case the identification of markings found on the original document testified to by the witness.
THE PRESIDENT: While the document is being examined it is not clear to my mind what connection is shown with Klemm in this document.
MR. LA FOLLETTE: He initialled the document, Your Honor. He couldn't hove initialled it if it hadn't come to him.
THE PRESIDENT: The initial is near the top of the document, as I understand it.
MR. LA FOLLETTE: That is correct, Your Honor. I think the witness testified it goes through the stamp of the Ministry of Justice.
I have concluded my examination of the witness if anyone wished to cross examine. If there is no cross examination I have finished now and I again offer this document as Prosecution Exhibit 348.
THE PRESIDENT: It will be admitted in evidence.
MR. LA FOLLETTE: All right. May the witness be excused?
THE PRESIDENT: The witness may be excused.
MR. LA FOLLETTE: Now if we may return to Book 5-D ---- I appreciate the Tribunal permitting that interlude.
JUDGE BRAND: I wonder, Mr. LaFollette, if this is an appropriate time to suggest that you communicate to the appropriate party that a number of these document books are bound together in a very bad manner--in fact, not bound at all. There is no reason why they shouldn't come to us in one piece.
MR. LA FOLLETTE: Your Honor is quite correct. I will communicate, and I dare say the comment of a member of this Tribunal in the record would, I hope, be taken note of.
I next turn to Document 1249 PS found at page 72 in the English book, Page 79-85 of the German. This is a report from the Chief President of the Province of Upper Silesia. Subject, Police court martial. Page 73, which is Page 81 of the German, refers to the distribution. Page 82 of the German, Page 73 of the English, shows that it also went to the Reichminister of the interior.
The reading of the document shows that there is an agreement the Reichminister of the Interior and the Reich Minister of Justice to establish police courts in Kattowice in the annexed eastern territory. It also says that in the sense of Paragraph 1 of the decree against Poles and Jews severe excesses of Jews and Poles, as well as other criminal acts which endanger seriously, and I quote, "the German reconstruction are--" and then follows a list of 21 crimes or offenses. I offer as Prosecution Exhibit No. 249 Document NI 249 PS.
DR. BEHLING: Although the remark is to be seen on the document that this letter was written in coordination of the Ministry of Justice and the Ministry of the Interior, in my opinion neither this document nor the other documents which were submitted in this connection contain anything which is in any closer connection to any one of the defendants in this court. Therefore I consider this exhibit irrelevant and object to it.
MR. LA FOLLETTE: It is dated June 1, 1942.
THE PRESIDENT: For the purposes of the record we suggest that you make that statement a little more elaborate.
MR. LA FOLLETTE: If Your Honor please, I see no particular reason to answer the argument. The document states that court martials are going to be instituted in Poland as a result of an agreement reached by the Reichminister of the Interior and the Reichminister of Justice and dated 1 June 1942. Certainly I think it has some probative value as showing what was done, and that until explained the high officials of the Reich Ministry of Justice must know something about this. I would not assume that a man is going to write over in Silesia about putting in court martials without the defendants who were in charge of this administration of justice being advised of his acts. This, along with other acts, can be connected. I don't say that this makes a case by itself. If we did that, we would put in only one document.
THE PRESIDENT: Are you offering it?
MR. LA FOLLETTE: I thought I had offered it as Prosecution Exhibit No. 349.
THE PRESIDENT: What is the document?
MR. LA FOLLETTE: Document 1249 PS.
THE PRESIDENT: It will be received in evidence.
MR. LA FOLLETTE: The next document is Document 360 found on Page 76 of the English book and Pages 86 to 93 of the German book. This document is dated February 28, 1941, and is a report of the execution of the death sentences passed against 172 Poles. There follows a roster which occupies pages up through Page 89 of the English book. The report is to the Reich Minister of Justice and bears the stamp of the Reich Ministry of Justice, 3 March 1941. It has the signature of Westfall on it.
The Prosecution offers as Prosecution Exhibit No. 350 the Document NG 360.
THE PRESIDENT: Why do you have an interrogation point after the word "Schlegelberger"?
MR. LA FOLLETTE: Your Honor, you can strike that all out, as far as I am concerned. I think that is some translator's idea that maybe the initial was Schlegelberger's. I don't think it was. I don't know. I don't want to bind the man by that, and that goes for the record as far as -- I can't tell.
THE PRESIDENT: The document will be admitted.
MR. LA FOLLETTE: The next document is NG 349, which is found at Pages 90 to 107 of the English book, Pages 94 to 110 of the German book. This is to the Reich Ministry of Justice, The Public Prosecutor's office at Berlin had contains a list of death sentences there according to the decisions of the senior president. There then follows on Page 93 a discussion of a letter sent from the Attorney General at Kattowice on the 27th of October 1943 to the Reich Ministry of Justice at Berlin. It bears a stamp that shows it was received on 31 October 1943. The subject, plea for clemency in the proceedings against Poles and Jews. Then there follows a register of the list of senior public prosecutors of death sentences that were carried out between 21 September and 20 October. There is an account of the reasons for these sentences. The document consists of further monthly reports, reports at about a month interval, of death sentences carried out in Poland -- sentences given and executions carried out pursuant thereto.
The prosecution offers as Prosecution's Exhibit No. 351, Document NG-309.
THE PRESIDENT: The document will be received in evidence. Does that apply to that particular defendant or to all of them?
MR. LA FOLLETTE: Your Honor, I think that applies to all of them who participated in an extension of this law in the eastern territories.
The next document is Document NG-305, the scheduled execution at Danzig. It covers Pages 109 to 127 of the English book and Pages 111 to 130 of the German book. The first report is the General State Attorney to the Reich Minister of Justice, and this looks as though it may be Leipzig -- I have got a bad mimeograph here -October 1, 1943 -- it should be Danzig, Your Honor. At Page 109, it should be Danzig. It is the last reports of the execution of death sentences on the 17 of July 1944. I ask the Court to permit me to refer to Page 127 which includes a death sentence for the condemned who took part in violence against racial Germans on Bromberg Bloody Sunday, 13 September 1939, executed 17 July 1944.
The prosecution offers as Prosecution's Exhibit No. 352, the Document NG-305.
THE PRESIDENT: The document will be received in evidence.
MR. LA FOLLETTE: I turn next to Document NG-211, which contains a list of one summary and 19 enclosures with reference to the sentences imposed upon 16 Poles. The report is to the Minister and State Secretary, Dr. Freisler, the 30th of April 1940. On Page 141 of the English book, 142 of the German, we find some comments; one by the defendant Joel. That says:
"If, however, according to the letter of the Foreign Office of 10/1/40 German interests may be severely damaged, then we must make use of the right of mercy for reasons of foreign policy."
I say in passing that I consider that a very pertinent observation when we come to discussing the law.
The prosecution offers as Prosecution's Exhibit No. 353, the Document NG-211.
THE PRESIDENT: The document will be received in evidence.
MR. LA FOLLETTE: We next turn to the document NG-128 which is found on Page 143 of the English Book, Page 144 of the German Book. This is the provisional president of the province of Upper Silesia, Kattowice, 1942, addressed to the Chief of the Reich Chancellery, Reich Minister Dr. Lammers, and is noticeable in that there is a request made that under the decree of 4th December 1941 concerning penal measures against Poles and Jews in the incorporated eastern territories -- that apparently they think they are having some difficulty punishing quickly and effectively enough --- and that the decision should be given by the Reich Minister of Justice, of the necessity of that decision, before granting amnesties, should be eliminated possibly. This, I might say, is a preliminary document to documents which follow, dated 28 of January 1942.
The prosecution offers as Prosecution's Exhibit No. 354, the Document NG-128.
THE PRESIDENT: That document will be received in evidence.
MR. LA FOLLETTE: The next document is NG-129, at page 145 of the English document book and Page 145-146 of the German. The document consists of two pages; the one on Page 146 is dated Berlin 15 December 1941, to the Reichminister and Chief of the Chancellery of the Reich. The Subject is the Letter of the co-signatory Reichstatthalter of the Reichsgau Wartheland, dated 13 November '41. It states on its face that for the duration of the war, the delegation of authority to the Reichsstatthalter in the Reichsgau Wartheland for the execution of death penalties against Poles and Jews as well as for pardoning of Poles and Jews who have been sentenced to death, is no longer restricted. Signed: Schlegelberger; and signed: Greiser.
On page 145, Berlin, 19th of January, 1942, over a month later the "Reich Minister of Justice, In charge of the Office; My very esteemed Reichminister:
"Enclosed I am sending for your information a document dated 15 December 1941 and signed by the Reichsstathalter and Gauleiter G R E I S E R , and by me. Since the delegation of authority to the Reichsstathalter in the Reichsgau Wartheland to order the execution of death penalties against Poles,and Jews, as well as for pardoning of Poles and Jews who have been sentenced to death, is for the duration of the war no longer restricted, the communication of the Reichsstatthalter dated 13 November 1941 is of no further consequence."
Signed: "Schlegelberger."
The Prosecution offers as Prosecution's Exhibit NO. 355 the Document NG-129.
THE PRESIDENT: The document will be received in evidence.
MR. LaFOLLETTE: The Prosecution next turns to Document NG -126, signed by the defendant Dr. Schlegelberger addressed to the Reich Minister and Chief of the Reich Chancellery; subject: Delegation of the right of pardon in the case of Jews and Poles; dated 26 May, 1942. It reads:
"I enclose for your information a copy of my decree of 28 May 1942, by which I, in agreement with the Minister of State and the Chief of the Presidential Chancellery, delegated the exercise of the right of pardon in the case of Poles and Jews sentenced by all general courts in the eastern province (Ostgebiet) to the Reich Governor (Reichsstatthalter) and Governors (Oberpraesident) of these provinces for the duration of the war."
And then the following page, page 148, of the document book is the delegation dated 28 May 1942; Berlin; signed Dr. Schegelberger.
The Prosecution offers to introduce into evidence as Prosecution's Exhibit No. 356 the Document NG 126.
THE PRESIDENT: The document will be received in evidence.
MR. LaFOLLETTE: Mr. King has one matter which he would like to dispose of at this time.
MR. KING: The Court will recall that in the session this morning Dr. Haensel raised the question as to the date when the defendant Joel took over his duties at Hamm in West Phalia as Public Prosecutor.
THE PRESIDENT: What exhibit does that refer to?
MR. KING: That refers to a number of letters which were introduced, a number of document which were introduced in Document Book IV. No particular exhibit, Your Honor. It refers to the general question when the defendant Joel became Public Prosecutor in Hamm. Even on many of those letters in which the defendant Joel was, according to the Prosecution, involved, this question has no bearing because the date of the documents are well beyond the disputed date. Dr. Haensel this morning referred to the Document NG-605 which is in evidence as Exhibit 54. Dr. Haensel's opinion is that the document quite clearly establishes the fact that the defendant Joel did not assume his duties as Public Prosecutor in Hamm until 17 August, 1943, at which time he was there introduced by the defendant Rothenberger. Upon some investigation the Prosecution is willing to accept that date. We only point out at this time, and this is an a way of an incidental comment, that from Document NG-587, which will be offered in evidence in the near future, it does appear that Dr. Joel was appointed to this position as early as the 12th of May, 1943.
However, as I previously said, for purposes of Document Book VI, and the exhibits introduced in connection with that book, we are perfectly willing to stand on the Exhibit 54, which gives the date of August 17, 1943 as the time when the defendant Joel assumed his position as Public Prosecutor.
JUDGE BRAND: August 17, 1943?
MR. KING: August 17, 1943, right.
MR. LaFOLLETTE: If your Honors will indulge with me a few minutes, I think I can finish this document book, and you won't have to bring it back in the Court. There are three documents remaining to be introduced -- unless the Court desires to adjourn at the regular time. I don't anticipate any discussion by Defense Counsel.
THE PRESIDENT: You might try the method that has been referred to here in tho documents of speeding up.
MR. LaFOLLETTE: I have been doing about as well as I can, Your Honor; I thought I did pretty well. The next document, NG-241, is found on page 149 of the English book, and is a letter from the Reich Minister of Justice to: Dear Gauleiter:
"Thank you very much for your congratulations on the occasion of my appointment as Reich Minister of Justice. I was particularly pleased with your good wishes.
I should welcome it if you would come to see me when you visit Berlin. We could discuss many problems concerning your Gau in the field of the administration of justice. I believe that many questions would then settle themselves."
And it is signed by Thierack. And on 11 September also the Reich Minister of Justice wrote to the Reich Marshall of Greater Germany, and said he was sending copies of two letters of Gauleiter Greiser. The question of execution of the death sentences by hanging, I should like to mention that I cannot expect my prison officials to carry out this manner of execution because they are all without exception officials of advanced age.
There is a letter from the Reich Minister of Justice to Gauleiter Greiser, dated Berlin, October 6th, 1942; dear Party-comrades Greiser; signed Dr. Thierack.
The Prosecution offers as Prosecution's Exhibit No. 357 the Document NG-241.
THE PRESIDENT: It will be received in evidence.
MR. LaFOLLETTE: The next Document is Document NG137, which appears at page 157 of the English document book and page 153 and 154 of the German book; it is dated 11 December, 1941; addressed to:"The Staatsminister and Chief of the Presidential Bureau of Chancellery of the Fuehrer and Reickskanzler, Dr. Lammers; signed by Meissner; and says the letter of the 13th of last month addressed to you by the Reichsstatthalter of the Warthegau concerning the exercise of the right of granting pardon to Jews and Poles in the Warthegau, and submitted by you to Dr. Schlegelberger for his opinion, has been brought to my attention. I, therefore, stated to him in writing, a copy of which is enclosed, that he has my approval for complying with the proposals of the Reichsstatthalter in the Warthegau, and that the cases for pardon which are under question shall be in the future no longer be submitted which are requested." Then, on the same date, December 11, 1941, Dr. Meissner addressed a letter to tho defendant Schlegelberger which refers again to this request:
"In response to your letter of the 10th of this month and with reference to our discussion of this matter, and after having read the letter of the Reichsstatthalter (Reich Governor) of the Warthegau of the 13th of the last month, to Reichsminister Dr. Lammers, I herewith state that I approve of it, that henceforth submission of appeals for pardon in favor of Poles and Jews are not be taken into consideration. Therefore, in alteration of my communication of 3 September 1939 I authorize you to generally omit the appeals for pardon in favor of Poles and Jews from the monthly submitted list of cases, in which you have decided to grant pardon to those under death-sentence."
The Prosecution offers as Prosecution's Exhibit No. 358 the Document NG-137.
THE PRESIDENT: The document will be admitted in evidence.
MR. LaFOLLETTE: Next we turn to Document NG-327, which is found on page 153 of the English book, and is dated 25 October, 1942, addressed by Dr. Lammers to the Reich Minister of Justice, and it seems to tie up the position of the Gauleiters in these matters with clemency and acts by the Court; it ties up the Gauleiters with the question of granting clemency by the Fuehrer, and on 23 of October the same subject matter was covered, and these matters are considered to be secret, as disclosed by pages 155, 157 of the German book, a letter dated 27 October, 1942, signed by Meissner, required a personal expression of opinion of the Gauleiter on all matters of clemency appeal.