And in my opinion the avoidance of that circumstance was the main purpose of the ordinance by the Reich Ministry of Justice which I have mentioned.
Q. So far as you know, was there any penal law or any procedural law which prohibited a judge from passing a sentence in excess of the penalty demanded by the prosecutor?
A. Under German law it was not forbidden for the judge to pass a more severe sentence than the one which the prosecutor had demanded.
Q. It was only embarrassing; is that right?
A. I didn't understand that question.
Q. I will withdraw it any way. Now, in connection with this ruling which you have described, even you as an independent prosecutor could not defy a wish of the Reich Ministry of Justice, I assume; and I further assume that in accordance with this regulation you went to see both Rothaug and Oeschey while you were public prosecutor and while they were judges, presiding over the Special Court; is that correct?
A. As a prosecutor I was tied by the instructions by the Reich Ministry of Justice; that is to say, I was under obligation to adhere to the instructions by the Reich Ministry of Justice, and in view of the instructions by the Ministry of Justice I naturally, in all cases of doubt, contacted the court either before or after the evidence had been taken, so that I could achieve the result which the Reich Ministry of Justice wanted, that is to say, an agreement or at least an approximate agreement.
Q. And, in those conferences which you had with Rothaug and later Oeschey, do you recall the number of instances in which you have had to increase your sentences to have it come within the scope of their desires? First, let me ask you, were there instances where that occurred?
A. There were cases where the Special Court told me that the sentence which the prosecution had intended to ask for appeared to lenient to the court; whereupon, I, in virtue of the instructions from the Reich Ministry of Justice, demanded a more severe sentence. It also occurred frequently that of necessity all the same, the court either did not go beyond or went only slightly beyond the sentence which was originally intended. I believe that in those cases the purpose which was to be achieved by asking for a more severe sentence was only to allow the court more discretion in penalty matters without there being any fear that the demand by the prosecution might be exceeded. That is to say, it was not necessarily so that when we asked for a more severe punishment, the court did actually act in accordance with that demand, but in my recollection it also happened that the court, all the same, pronounced a sentence below the higher demand made, but as for a number of cases, where the penalty was less than the demand or where the decision was in accordance with the demand for more severe sentences by the prosecution, as for the number, I cannot state them, not even approximately.
Q. Let me ask one final question on this general subject. First let me suppose a hypothetical case - that the defendant, either Rothaug or Oeschey, when they were presiding judge of the Nuernberg court, called you as a prosecutor and said, "In the case which is before us now you have proposed a sentence of six years.
We do not like that. We suggest that you change your plea to one of death." What would have happened to you, personally, had you gone out in the courtroom a few minutes later or a few hours later and proceeded to ask for a sentence of six years when you knew very well that they were determined to pronounce the death penalty?
DR. SCHUBERT: May it please the Tribunal, I object to that question. The question does not refer to facts but to the personal opinion of the witness, in a case which never occurred, a case which the prosecutor himself expressly described as hypothetical, and which, therefore, has nothing to do with the cross examination.
THE PRESIDENT: The objection will be sustained.
Q. Was it common for you not to accede to the wishes of either Rothaug or Oeschey in the matter of changing your request or your severity of punishment in your summation?
A. I was unable to understand the question.
Q. Do you recall any instance when you failed to accede to the penalty demanded by either Rothaug or Oeschey as a result of your conferences with them?
A. No, I cannot remember a case.
MR. KING: I have no further questions, Your Honor.
THE PRESIDENT: The witness may be excused.
(Thereupon the witness was excused and withdrew from the courtroom.)
(HANS KERN, a witness, took the stand and testified as follows.)
BY JUDGE BLAIR:
Q. Will you raise your right hand and repeat this oath after me:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE BLAIR: You may be seated.
DR. SCHUBERT: May it please the Court, we are now concerned with Document Book 3 I, Document NG-563, Exhibit No. 232.
THE PRESIDENT: Proceed.
CROSS EXAMINATION BY DR. SCHUBERT:
Q. Witness, begin by telling the Court your name and your profession.
A. Hans Kern, lawyer.
Q. We are concerned with your affidavit which you deposited on 6 January 1947 before the prosecution. I only want to ask you a few questions. You said that applications for evidence by the defense were almost always rejected as irrelevant by the Special Court in Nuernberg. Do you remember a case where the Special Court, with Oeschey as presiding judge, admitted an application for evidence by you in a case where the death sentence could be expected?
A. Yes.
Q. Can you give us some details briefly?
A. It was a case of robbery after an air raid. I applied for evidence. I wanted witnesses heard. The court decided to make further investigation into the natter. The decision was well founded. As far as I remember, proceedings were later on stopped.
Q. Witness, can you tell us what sentence was provided by the law at that time for robbery?
A. Death sentence.
Q. In your affidavit you mentioned a number of cases which have already been dealt with here. I merely intended to refer to one of these cases. That is the Kwasnik case, in the German text on page 5 of the affidavit. The case of a Polish farmhand who had performed an abortion or made an attempt to do so. Do you know, Dr. Kern, whether that man was in fact called Kwasnik?
A. I only remember the case. I am not able to remember the name with any certainty because it was a long time ago, but I believe he was Kwasnik.
Q. Witness, the defendant Oeschey denies emphatically knowing anything about this case. Can you, in fact, with absolute certainty, beyond any doubt, state that the defendant Oeschey was the presiding judge of the Special Court in that case?
A The case of which I was thinking when I deposed ay affidavit was dealt with by Oeschey, the presiding judge at the time. That was a case which occurred near Neustadt an der Aisch, and the subject of that case was abortion. The defendant was a young...
Q Witness, forgive me, if I interrupt you. I did not ask you about the case. I only asked you whether any doubt is out of the question with you that Oeschey was the presiding judge in that case.
A The case which I described excludes all doubt.
Q When was the trial of that case held?
A I cannot exactly tell you the year. It may have been in 1942; it may have been in 1943.
Q Can you remember whether the abortion on trial had been completed, or whether it had been attempted?
A In my recollection the defendant was indicted as an enemy of the people. The crime was abortion. Whether completed or attempted I cannot say with certainty.
DR. SCHUBERT: I have no further questions to put to the witness.
BY DR. KOESSL: (for the defendant Rothaug):
Q Witness, did Rothaug's manner of conducting a trial, according to your observation, violate the formal code of procedure?
A No.
Q Can you summarize in brief which were the main points of view which were scored in Rothaug's method of conducting a trial?
A I have not understood that question properly.
Q You said just now that a violation of the provisions of the code of procedure had not occurred. On the other hand, however, you made some criticism of his method of conducting the trial. What were the main points of view which you wished to criticize concerning Rothaug's method of conducting a trial?
A I have said that in my view Dr. Rothaug's method of conducting a trial was not objective.
By that I mean the absolute unprejudiced state of mind of the judge concerning the facts themselves, the defendant, and the other persons who take part in the trial. Rothaug regularly -- there were exceptions, however -- was very abrupt, some time rude with the defendants, so that the defendants showed obvious signs of intimidation. As far as the defense counsel wore concerned one felt that one was more of a puppet. In my view the defense counsel were not allowed the necessary scope to work in the interest of his client.
Q Witness, in cases where you felt yourself to be hampered, did you try to achieve a reopening of the trial by formal and well founded applications for evidence during the session which would have created a basis for governing the sentence?
A I myself did not ask for a case to be reopened.
Q I am not going to the Durka and Strus case. Do you know whether, in the Durka and Strus case, the speedy scheduled of the trial was what Rothaug wanted?
AAccording to my conversation with Dr. Rothaug before the opening of the trial I must conclude that he himself found it embarrassing that that the trial had to be held. As he told me during our conversation there were no files in existance and the indictment had not yet been produced. He was annoyed about that.
Q Why did Rothaug, in your recollection at that time, in spite of that fix the trial for the afternoon?
A I asked Dr. Rothaug to postpone the date since I had not sufficient time to prepare my defense. Dr. Rothaug told me that that was impossible. He had had instructions or directions from the Reich Ministry of Justice saying that that case must be tried immediately. Then I told Dr. Rothaug that I could not take over the defense; whereupon he told me that in that case the trial would have to be held without the defense counsel. So as not to leave my client without protection, I decided to take on the defense.
Q With reference to what you said just now, there are two points I wish to raise.
Firstly, you say that there were no files. Can you remember that copies of the files were available to the court?
A I asked Dr. Rothaug to let me have a look at the files. Dr. Rothaug told me there were no files. There were merely the police reports, and at the very moment when I was with Dr. Rothaug those police reports were with the prosecutor so that he could write out the indictment.
Q May I deduce from that the essential portions of the penal files did then exist?
A I can not say that because I did not see them. I did not see the files at that time, nor at a later time. I only know that Dr. Rothaug at the trial had portions of files with him.
Q In your affidavit, as well as in your previous answer you mentioned that Rothaug had said that in case you should refuse to take on the defense the trial would be held without a defense counsel. I would like to ask you.... do you concede that Rothaug spoke in such away that in case you were to refuse, the trial would be held without you as a defense counsel? That in other words, another defense counsel would be appointed in your place?
A Naturally I no longer remember the exact wording. I do concede the possibility that Dr. Rothaug, when he made his statement, may have meant to say that I, my person, would then be eliminated as a defense counsel.
Q Witness, it is correct that besides you, another defense counsel worked on that trial?
A Yes. It was Justizrat Dr. Kuehn.
Q Is that defense counsel still alive?
THE PRESIDENT: This is almost time for adjournment. Do you require very much mere time?
DR. KOESSL: It will be not very much longer, Your Honor, but I assume it will be about fifteen minutes.
THE PRESIDENT: We will adjourn in that event until next Monday morning at nine-thirty. (The Tribunal adjourned until 0930 Monday, 2 June) Official Transcript of the Proceeding in the matter of the United States of America, against Josef Alsteeter et al, defendants, sitting at Nurnberg, Germany, on 2 June 1947, 0930-0950, Justice James T. Brand, presiding.
THE MARSHAL: Persons in the courtroom will please find their seats.
JUDGE BRAND: You may be sealed.
THE MARSHAL: There will be order in the courtroom.
JUDGE BRAND: The Judges who are present this morning have thought it advisable to come into the courtroom for a conference with Counsel for the Prosecution and for the Defense.
The record will show that we are not sitting as a Court this morning. We have come in for the purpose of conferring with the gentlemen for the Prosecution and Defense as individual Judges, and with you as individual Lawyers.
The reason for this procedure is that his Honor, the Presiding Judge Judge Marshal, is in the hospital for, we trust only a few days, and we consider it important that we should not sit as a Court in his absence. Our reason for that being that we desire to make it perfectly clear that he remains as the presiding Judge, and that we are not sitting as a Court in his absence.
We will, however, expect the interpreters and the reporters to make a record of this conference, in the same manner as they would do if we were in open session.
The individuals who are here, I am sure all of us, desire to waste as little time as possible.
We are advised this morning that there are a number of witnesses who have been brought from considerable distances, who are here at the request of Defense Counsel for the purpose of being cross examined by Defense Counsel. It might be difficult, and would surely be most inconvenient to send them all home in the hope of securing them again at a leter time. Therefore, in behalf of my associates and myself, I should like to ask the Prosecution, if the Prosecution has any ***** suggestions, which I understand he has, as to a procedure by which we might expedite the trial when it reconvenes, and with fairness to all parties.
MR. WOOLEYHAN: Your Honors, in the absence of the Presiding Justice the Prosecution respectfully suggests that under the provisions of Article V-e, of Ordinance No. VII, and, further, under Rule 24 of the Rules of Procedure for Military Tribunal III, that the Tribunal duly appoint from its members one or more Commissioners to hear and to take evidence upon the cross examinations of the witnesses now available, and to become available, until the Presiding Justice can return to the bench. That is, in our opinion, completely not prejudicial to the Defense, and in the interest of an expeditious clearing up of the cross examination of these affiants.
JUDGE BRAND: The Judges who are conferring with you have considered that suggestion. We think that if such a procedure should be carried out it should be under substantially the following conditions:
1) That an order should be made to be signed by the Presiding Judge. I understand he is able to do so, and by the other members of the Court, so that it will unquestionably be the act of the entire Court.
2) That the order should appoint as Commissioners, the three Judges who are conferring with you this morning: The Honorable Judge Blair, the Honorable Judge Harding, and myself.
That, we would then proceed to hear the cross examination of these witnesses as conducted by the Defense Counsel and the re-direct examination, if any. And, that the testimony should then be reported by the three of us to the full Court consisting of: The Presiding Judge, Judge Blair, and myself.
That, upon the examination of that cross examination by the Presiding Judge, and by the other members of the Court, sitting as a Court, there would be no possible prejudice to any party, that we can see.
On the other hand, to release these witnesses whom the Defense Counsel has called might prove prejudicial to you.
Speaking for my associates I should like to know whether the members of the Defense Counsel, at this time, find any objections to the procedure which I have suggested? And, I suggest that you do not address the Court because the Court is not here.
DR. SCHILF: May it please the Court -
JUDGE BRAND: We did not hear you Mr. Schilf.
DR. SCHILF: Your Honor, on our part, we apparently have no objections that this procedure should be appointed; that, in other words, a Commission of the Court should carry on the cross examination, and that the record should then be submitted to the entire Court.
JUDGE BRAND: We thank you for that as your answer. I should like to ask if there is any of the Attorneys of the Defense who, at this time, think there will be any objections whatsoever to this procedure. Do you feel that you can speak for all of them, Dr. Schilf?
DR. SCHILF: Yes, I believe I have convinced myself that none of my colleagues has any objections of any kind, so that I feel that I am empowered to speak for all of the Defense Counsel, to make that declaration on behalf of all Defense Counsel.
JUDGE BRAND: Then, I am sure that when the Court convenes we may be able to count upon the Defense Counsel, then making a similar pronouncement in open Court so that record will be clear upon that matter.
It appears to be necessary that we should recess -- I beg your pardon-- it appears to be necessary that the Judges should not meet with you again until tomorrow morning at 9:30 in order that, in the meantime, we may secure, if possible, a written order which will be the official order of the Court, signed by Judge Marshal, and the other members of the Court, which would then authorize us to proceed in the manner we have outlined.
I think that disposes of this matter for the time being in the conference.
I have two other matters about which we have also discussed.
The time is rapidly approaching when the defense will enter upon the presentation of its case. Expressing my very clear opinion, I would say that the Court, when it convenes, will have complete authority to determine the order in which opening statements shall be made and in which the proof shall be presented in behalf of the various defendants.
However, it seems very important and very proper that we should have from you in the very near future a statement from defense counsel, after they have jointly conferred, as to their wishes concerning the order in which opening statements shall be made and also concerning their wishes as to the order in which the various defendants shall present their testimony in their own defense.
I think it quite likely that the Court will consider the wishes of defense counsel so far as may be possible and proper as to this matter of the order of the making of opening statements and the order of proof. That is a matter which I think we should not ask you to express any opinion on that at this time, but I suggest that when we gather tomorrow morning that you have a written memorandum, if you can do so, which will indicate your collective ideas on this matter of the order of proof.
I would also suggest to you that you give serious consideration to the manner in which the defense, speaking of it as a whole, will present such part of your testimony as applies to all of the defendants equally.
You have indicated rather clearly that there are some matters relative to your views of German law and the like which may be applicable equally to all, and it would surely be a misfortune to have fifteen separate presentations of matters which apply equally to all. Will you gentlemen give that your consideration and be prepared to indicate preferences when we meet tomorrow?
Is there anything else which we should confer about during this unfortunate occasion?
MR. WOOLEYHAN: Your Honors, I only suggest that the Marshal of the Court be instructed to have the witnesses available beginning tomorrow morning in the same manner as if Court were in regular session.
JUDGE BRAND: I think the Marshal will do that.
MR. WOOLEYHAN: And continue to do so until either the court convenes formally again, and instructs them otherwise, or until some other order is issued.
JUDGE BRAND: I am sure the Marshal will cooperate in that respect. As soon as an order has been prepared the matter will be made definite. Thank you, gentlemen, all of you. I am sorry to say that we must not proceed further. We will reconvene tomorrow morning at nine-thirty.
(Whereupon, the proceeding was adjourned until 9:30, 3 June 1947)
Court 3 Case 3 (COMMISSION III) Official Transcript of the Commission of American Military Tribunal III, in the ratter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 3 June 1947, 0930-1630, The Honorable James T. Brand presiding.
THE MARSHAL: Persons in the courtroom will please find their seats.
The Honorable, the Commissioners of Military Tribunal III. The Commission is now in session. God save the United States of America and this Honorable Commission. There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you please ascertain if all of the defendants are present?
THE MARSHAL: May it please Your Honors, all the defendants are present, in the courtroom with the exception of the defendant Engert, who is absent due to illness.
THE PRESIDENT: Let the proper notation be made.
At this time we will read the order which was made and signed r yesterday by the full membership of Military Tribunal III in this case. This order constitutes the authority by reason of which the present judges are proceeding as commissioners:
"It appearing to the Tribunal that the prosecution has introduced into evidence certain affidavits and that at the request of defense counsel the affiants have been brought to Nurnberg for cross-examination and are now available for that purpose, in order to expedite the trial of this case it is deemed expedient to appoint commissioners to hear the testimony of said affiants upon their cross-examination and redirect examination, if any, and to certify the verbatim transcript of such testimony and examination to the Tribunal.
"Now, therefore, it is ordered that the Honorable James T. Brand, the Honorable Mallory B. Blair, Judges of this Tribunal, and the Honorable Justin W. Harding, Alternate Judge, be and they each are appointed as Commissioners to take the testimony of such affiants as may be available for cross-examination and to certify the same to this Tribunal for its consideration. To this end, each of said Commissioners Court 3 Case 3 (COMMISSION III) are authorized to administer oaths, to direct the proceedings, and to propound such questions as they may deem advisable.
The Marshal is directed to produce the witnesses for cross-examination and redirect examination from time to time as may be directed by the Commissioners and until further order of this Tribunal. The hearings will be held in the regular courtroom of Tribunal No. III and the record shall be taken and recorded as is done when the Court is in open session.
The first session will be held at 9:30 o'clock in the forenoon on Tuesday, the 3rd day of June 1947.
"This order is made pursuant to provisions of Ordinance No. 7, Article 5, Section E."
Signed: Carrington T. Marshall, Presiding Judge; James T. Brand; Mallory B. Blair.
Are the parties ready to proceed with the cross-examination of the first witness?
DR. JOSEF BAEUMLLR, a witness, took the stand and testified as follows:
JUDGE BLAIR: Will you stand up please, sir?
Hold up your right hand and repeat after me the following oath:
I swear by Cod, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
You may be seated.
DR. SCHUBERT (Counsel for the defendant Oeschey): Your Honors, may I begin with the cross-examination?
THE PRESIDENT: Yes.
EXAMINATION BY DR. SCHUBERT:
Q. Witness, please tell the Tribunal your name and your profession.
A. Dr. Josef Baeumler.
JUDGE BLAIR: Please identify the instrument about which you are going to examine him.
Court 3 Case 3 (COMMISSION III)
DR. SCHUBERT: I am here concerned with document NG-680, Exhibit No. 479, Document Book III-A, supplemental volume.
BY DR. SCHUBERT:
Q. Witness, please tell the Court your name and your profession.
A. Dr. Josef Baeumler, Land gerichtsrat, retired; at the present time auxiliary worker.
Q. Dr. Baeumler, during what time did you work at the Special Court in Nurnberg?
A. From 1 March to 1 May 1940, and later on from May 1943 until the end.
Q. During the period from 1 May 1943 until 1945, who were the presidents of the Special Court whom you knew?
A. Landgerichtsdirector Dr. Ferber, Landgerichtsdirector Oeschey, and Landgerichtsdirector Moder.
A.. Dr. Baeumler, in your affidavit you say of Oeschey that his manner was insulting to defendants. Were those excesses without any motive, or was it your impression that there was a motive either in the manner of the defendant himself or in excessive nervousness or over-strain on the part of Oeschey?
A. It is difficult for me to state the reasons and the motives, but it is possible that in one case or another the reasons were to be found in an irritated mood or an over-strain, overburdening with work, or that it was due to the insubordination on the part of defendants who refused to confess.
Q. Dr. Baeumler, was the manner in which the defendant Oeschey conducted his trials such that those facts which spoke in favor of the defendant, as well as those which spoke against the defendant, were treated exhaustively?
A. I have to answer that question affirmatively. The facts were brought out without any doubt, in spite of the offensive manner in which the trial was conducted.
Court 3 Case 3 (COMMISSION III)
Q. Dr. Baeumler, you also mentioned the severity of the sentences which were passed there. Were you under the impression that the defendant Oeschey considered those sentences just?
MR. WOOLEYHAN: One moment, please. I object to that question. It is calling for the opinion of a witness on a matter in which no foundation has been laid that he could possibly know the answer. The question requested the witness' opinion of another man's opinion. There has been no foundation for that question.
DR. SCHUBERT: In reply, may I state briefly that in my view it is very relevant as to whether the defendant Oeschey -- who, in the affidavit by this witness, has been reproached again and again with the severity of his sentences -- passed those severe sentences because he was convinced that they were just, or whether just the opposite was true. Therefore, I believe that this question pertains to the affidavit and also is absolutely necessary to clear up the context.
THE PRESIDENT: The state of mind of the defendant and his motives may well be relevant, bu the question propounded to this witness as to his opinion concerning the state of mind of the defendant is objectionable, and the objection will be sustained.
BY DR. SCHUBERT:
Q. Dr. Baeumler, you then state that Oeschey only in very rare cases could be persuaded to depart from his views. If I understand you correctly, you frequently , or occasionally, did express a different opinion. Is that correct?
A. Yes, I did so, but I never prevailed with my opinion.
Commission 111 Case 111
Q Was your opinion of a different kind ever discussed?
A That is possible.
Q It is not correct, Dr. Baeumler, that once for an hour and a half you argued about your opinion which differed from his?
A That concerns a case in Straubing, as I recall. It was the case of Paragraph 175 concerning offenses against children. I remember we argued about it for a long time. I was against the death penalty, and I could not share the view which Oeschey put forward.
Q You then say that Oeschey was guided points of view and points of guidance which he had received from the RSHA and from the SD. Do you know anything as to whether the defendant Oeschey had any direct contacts with the RSHA or with the SD?
A I do not know any details, nor do I know on the basis of what points of view or how the defendant should have happened to refer to that, because I was not informed about that and I am not informed about it now.
Q As you refer to Oeschey's political tendencies did you at the sessions hear him give long political lectures?
AAt the sessions he frequently utilized national socialists ideas either for the benefit of the audience or the court, or the defense. Perhaps he did this in order to instruct and to influence the audience in the national socialist sense, but generally speaking these lectures were not long.
Q Dr. Baeumler, you say that Oeschey concerning the directives he had received from the guidance of justice tried to put them into practice. Are you aware of cases were Oeschey made efforts to have a sentence which through the guidance of jurisdiction had been laid down was turned into a more lenient sentence in favor of the defendant?
A I do not know of such cases, but it is possible that it did happen that the instructions from above after the trial had been held and the facts had been elicited appeared to severe to Oeschey.
Commission 111 Case 111
Q You then refer to individual cases. By way of an introduction I would like to ask you, are you of the opinion that in any of those cases the law was defeated?
A No.
Q That the decision was made against the law?
A No.
Q Now I am coming to the Strobel case. You criticize the point that Strobel, who was indicted for an offense against the malicious acts law, was sentenced as a dangerous habitual criminal, that in his case the previous convictions referred to a different sphere than his last offense for which Strobel was to be sentenced. Arc you of the opinion that in the case of Strobel the conditions for assuming that he was a dangerous habitual criminal did not obtain?
A No, I am of the opinion that those conditions did obtain.
Q Can you remember whether during the consultation on the jurisdiction of the Supreme Reich Court the question of the dangerous habitual criminal was discussed?
A Yes.
Q Dr. Baeumler, you have reread the files if the Strobel case. You knew that in the transcript on the second trial it says that the prosecutor verbally indicted Stroble for an offense against the malicious acts law; is that correct?
A Yes, that is correct.
Q You yourself played a part in arriving at the decision to suspend the trial, a decision which was made at the first trial, a decision which was made at the first trial. What was said in that decision to discontinue the trial?
AAs I recall, it was decided to discontinue the trial for the purpose of ascertaining further facts.
Q About what?
AAbout the question as to whether the conditions cf the dangerous habitual criminal did obtain.
Commission 111 Case 111
Q Do you know, Dr. Baeumler, that the Prosecution between the first and the second trial received an instruction to prosecute the defendant as a dangerous habitual criminal?
A Yes, I understand that from the files.
Q Well, Dr. Baeumler, are you of the opinion that the remark in the transcript about the second trial, according to which the prosecutor based his indictment only on Article 2 of the law against malicious acts, is correct?
A I should assume that that statement in the transcript is not correct. I am rather of the opinion but that I cannot say for certain that the indictment in accordance with the sentence which was asked for later was based on Article 20-A.
Q And Article 20-A is the article concerning what penalties?
A The penalties concerning the habitual dangerous criminals.
Q Dr. Baeumler, during your work at the special Court did you observe the records every now and again were not kept carefully?
A I can remember that every now and then corrections had to be made. I no longer remember details.
Q Now a last question concerning that case. When the first trial was discontinued to examine the question as to whether the defendant was a dangerous habitual criminal, and when furthermore between the first and the second trial the defendant for the purpose of his defense had a defense counsel appointed for him, was at the second trial on the part of the defendant or his defense counsel any doubt that for that trial the question was whether the defendant was to be sentenced as a dangerous habitual criminal?
A I am of the opinion that the defendant was in no doubt about that question.
Q And the defense counsel?
A I believe that the defense counsel had no doubts, either.
Q I am now coming to the Flurer case, Dr. Baeumler. Do you know Commission 111 Case 111 that in that case the prosecution from the very beginning intended to ask for the death sentence?