THE PRESIDENT: Just a moment, please. The time has arrived for our recess. The Tribunal has had a report concerning the facts relative to the absence of the defendant Rothenberger, and the Tribunal requests of the prosecution that tomorrow morning at 0930, the prosecution produce some evidence, by the presentation of which the record may be made clear, as to the facts of the absence of the defendant Rothenberger.
We will recess until tomorrow morning at 9:30.
(The hearing adjourned until 26 August, 1947, at 0930 hours.)
Official transcript of American Military Tribunal III in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 26 August 1947, 0930-1630. The Honorable James T. Brand, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III. Military Tribunal III is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of the defendant Curt Rothenberger, who is absent.
MR. WOOLEYHAN: The Prosecution calls Captain Martin.
ROY A. MARTIN, a witness, took the stand and testified as follows:
BY JUDGE HARDING:
Raise your right hand and repeat after me the following oath: I swear that the evidence I shall give shall be the truth, the whole truth and nothing but the truth, so help me God.
(The witness repeated the oath.)
DIRECT EXAMINATION BY MR. WOOLEYHAN:
Q Will you please state your name, your rank, and your present official duty?
A Roy A. Martin, Captain, Medical Officer, assigned to the Justice Prison.
Q When did you last examine the prisoner and defendant Curt Rothenberger?
A Well, I examined him at the start of the trial but I have seen him several times since, but not for physical examination.
Q. Well, Captain, can you offer any explanation, insofar as your professional or other knowledge may extend, as to why the defendant an prisoner Curt Rothenberger cannot be present in this courtroom?
A. He received a self-inflicted injury to the left wrist at approximately one o'clock Sunday morning.
THE PRESIDENT: You said a self-inflicted injury?
A. Yes, sir.
Q. In your opinion how serious is this self-inflicted injury, and how long do you estimate it will be before the prisoner and defendant Rothenberger can be restored to health sufficient for his attendance here?
A. The main artery which supplies the left hand was severed completely; however, the injury is very minor, and he can return to court in approximately one week.
Q. In approximately one week?
A. Yes, sir.
Q. Are there any special security measures that you would advise to prevent this occurrence happening again?
A. Well, it is usual in such cases to put two men in a cell, and in such a case where a man is depressed or where he has attempted to inflict injury on himself.
MR. WOOLEYHAN: No further questions.
THE PRESIDENT: I assume that the security measures arc measures to be taken not by the Tribunal but by the prison authorities; is that not correct?
MR. WOOLEYHAN: Captain, so far as your knowledge of prison routine extends, will the prison authorities take care of proper security measures, or does it require an order from the Court?
A. That matter will be taken care of -
MR. WOOLEYHAN: By the prison?
A. By the prison.
THE PRESIDENT: Dr. Wandschneider, do you have any cross examination?
DR. WANDSCHNEID R: No.
THE PRESIDENT: The witness is excused. Thank you, Doctor. You may proceed with the re-direct examination of the witness Rothaug.
DR. WANDSCHNEIDER: Your Honor, may I make one request. I should like to use the earliest opportunity to talk to the defendant Rothenberger because naturally I am interested in comforting him from a psychological point of view and exercise some influence on him in that direction. If the Court would be kind enough to give a recommendation to the prison authorities, I would be very grateful.
THE PRESIDENT: Mr. Wooleyhan, subject to such security measures as the prison authorities deem advisable, we know of no objection to Dr. Wandschneider's talking with his client. Have you any objections to offer?
MR. WOOLEYHAN: No, Your Honor.
DR. WANDSCHNEIDER: Thank you, Your Honor.
THE PRESIDENT: Dr. Wandschneider, you understand, of course, that there is no right on the part of the defendant to request or demand consideration by reason of injuries inflicted by his own fault, and that the case will proceed against him. That does not mean that we may not be able to give to you, his counsel, some convenience and accommodation that seems proper, but the Tribunal wished it definitely understood that no rights can accrue to the defendant Rothenberger by reason of his wrongful act in the matter of continuing of the trial.
DR. WANDSCHNEIDER: Yes, I realize that. I only made this request in order to facilitate the defense.
THE PRESIDENT: Yes. We have no objection.
DR. WANDSCHNEIDER: Thank you, Your Honor.
OSWALD ROTHAUG --Resumed RE-DIRECT EXAMINATION (Continued) BY DR. KOESSL: (Attorney for the Defendant Rothaug) May I continue with my re-direct examination?
THE PRESIDENT: Proceed.
Q. Witness, in Exhibit 560, the Ankenbrand exhibit, it was stated that you had spoken of the German crazyness for objectivity; what did you mean by that expression?
A. That remark referred to the mishandling which in my opinion Groben applied as the lap scenes. He did not judge those scenes the way one usually regards living human beings. As far as my own view was concerned, his opinion lacked reality; otherwise, he would hardly have allowed that woman to commit perjury.
Q. Do you remember what Groben's statement was, the statement he made on that piece of paper after Katzenberger had appealed against the arrest warrant; that piece of paper wkich he sent to the files of the prosecution?
A. I remember that perfectly well; I think more or loss literally that statement said "I intend to revoke the arrest warrant if the prosecution can give no further reason why that warrant was issued."
Q. That statement by Groben in effect did remain with the files; is that correct?
A. Yes, yes.
Q. Was there anybody at the court, the prosecution, or the defense who attached any importance to that statement? Did anybody at any time make any reference to the fact that at some time the investigating judge, Groben, himself, harbored doubts about the reasons for that warrant?
A. The statement was outside the actual problems of the proceedings.
THE PRESIDENT: The question is: Did any one attach any importance to that statement. Did any one attach any importance to that statement. Answer the question; answer the question.
Q. You have been told to answer the question whether anybody referred to it -
A. Nobody ever referred to it at any time.
THE PRESIDENT: Ask your next question.
Q. In Exhibit 558, mention is made of the fact that you said that Gauleiter Streicher had not given his permission for the witnesses whom the defense counsel wanted to call and who were members of the Nazi Party, Was there any legal provision -
A. There was a law -
Q. Just a minute. Was there any legal provision which made such a permission necessary?
A There was a law which as far as I know has not yet been presented to this Tribunal. According to that law, certain persons who were in some relationship or another to the party, similar to civil servants, could only testify about events which had occurred inside the party if the so-called permit for that testimony had been issued by certain party agencies; that is to say, the judge could only hear such witnesses if a permit had been issued for them to give testimony, but he was not competent himself and he had no opportunity to exert any influence himself on this matter. It was a matter for the two parties concerned, i.e. the prosecutor or the defense counsel to apply for a permit to the agency concerned. I myself did not make any efforts in this respect, either in a positive or in a negative direction, and I may state here that at that time, a few weeks after I had assumed my office at Nurnberg, I had no relations whatsoever with any party agency; I was not even a party member at the time.
THE PRESIDENT: Just a moment. Can you give us a reference to the statute to which you have referred?
A There is a law which deals with that subject. Maybe my defense counsel has it in that red book from which I quoted once before about some matters of organization.
DR. KOESSL: I shall procure that law.
THE PRESIDENT: The Tribunal would like to have it. You may proceed.
Q In this Stegmann case, were there any witnesses who were not heard and who might have contributed materially?
A I have already pointed out that a large number of witnesses were to be introduced, witnesses for whom no permit was required, and that we considered the matter at great length and then rejected those witnesses, and that for legal reasons.
Q Yesterday you road Exhibit 561 -
BY JUDGE HARDING:
Q May I ask a question please. What were the legal reasons of this law you referred to?
A The law concerning that matter of political agencies giving a permit for witnesses to testify, well, I assumed that was a proper law which had been promulgated in the Reichsgesetzblatt.
Q Was that the reason you rejected these witnesses?
A In the case of these witnesses I have just mentioned, there was no need for them to be rejected, but under the law I was not allowed to examine those witnesses. The situation was the same as it would have been in the case of a civil servant who is to appear as a witness; a civil servant in the penal proceedings under the German code of procedure, may only be examined by the judge if his superior authorities have issued a permit for him to testify. If such permit is not submitted to the court, he may not be examined. In that case, the situation has to be judged as it would be without obtaining knowledge of the matters of which the witness may have known.
BY DR. KOESSL:
Q But you did not reply to the main question, witness. Among those witnesses whom you rejected, there was not a witness rejected because the permit had not been issued for him?
A No.
Q There were material reasons?
A Yes. We rejected a motion for evidence which had been made at the trial and we rejected it for factual reasons.
Q Yesterday evening you read Exhibit 561. Please tell us quite briefly what portions of that report were made by you and which did not originate with you?
A The report, the final version of which, such as it was presented at the time, I read for the first tine yesterday evening, is based largely on my report; that is the report which I in my capacity as Gaugruppenwalter, Gau Group Administrator, of the Rechtswahrerbund, the Jurists League, made to the leader of the Jurists' League, with the exception of individual cases mentioned in the report, cases with which I had not dealt.
Q Yesterday in reply to the President's question whether the nullity plea would have been made if the offender had been a German, you said "not even theoretically can I imagine that might have happened, because the main counts can hardly be made to refer to a German." What did you mean when you said that?
A Perhaps the best way for me to make myself clear is if I say this: What I meant to say was the legal situation as such on which we had to base ourselves for our application of the legal provisions, was based on a basically different situation as far as the Poles employed in Germany were concerned, as compared to the German population; that is to say, according to the law, as we had to see it, and according to the decisions by the Supreme Reich Court, eight million Poles working in the fields they constituted an entirely different element in consideration of security from, shall we say, eight million German men; and those dangers from the very outset were kept in view by the law.
That was what I meant to say; that is what I meant to convoy.
THE PRESIDENT: We understood your testimony.
Q My next question is this: You said, however, that the situation of the Pole before the court was the same as that of a German.
A Yes. That was an error which I too felt at the beginning, because I had not gone into that question so intensively, because I always followed the German code of procedure.
Q What were the Poles, for example, allowed -- were they granted a state of self defense?
A That question was broached once and the intention was to charge us with not having granted them self defense, but this is not right, nor, that there had been a so-called short circuit; by that expression I mean to say that the Supreme Reich Court had corrected our verdict because we had incorrectly refused to grant that the Poles self defense. The question actually is a question which was of importance not only with the Poles as such, but it is a question which has been problematic for a long time, in connection with the right to self defense under German law. The decision was made in favor of restricting the right of self defense, and that in all such cases where there was a relation of dependency, that is to say, cases where the civil servant depended upon his superior, as a soldier being dependent upon his officer, the farmhand being dependent upon the master -
THE PRESIDENT: Isn't the exhibit which somewhat restricts the right of self defense in evidence in this case? I think it is.
A Yes, Your Honor.
DR. KOESSL: Those restrictions which were applied to Germans too.
A I said that those restrictions and that discussion of restrictions had always played a part in the problem, where to grant self defense. The question is, for example, whether one farmhand -
Q Would you be quite brief, please.
THE PRESIDENT: Just a minute. My question was this: Does not the regulation which restricts the right of self defense for Poles appear in the evidence already received?
A No, Your Honor. I cannot remember that.
THE PRESIDENT: All right; go ahead.
A We are not talking of a legal provision, but we are talking about the legal doctrine.
THE PRESIDENT: It was a direction from higher authority which is in evidence in this case now.
A No, no.
THE PRESIDENT: Yes, it is.
DR. KOESSL: This was the interpretation of the right of self defense in certain dependency cases, and that restriction for many decades had applied not only to the Poles but also to Germans -
THE PRESIDENT: Go on with your testimony. We will ascertain later.
THE WITNESS: The question was that of a legal doctrine, developed for decades by legal science. It was a question of whether, for example, a farmhand abused or threatened wrongly by his master has the right, in such a case, to defend himself against this attack, shall we say, with a pitchfork. In such cases the legal doctrine involved the principle that it might be possible to assume that the farmhand or the defendent should escape from the danger by fleeing from it. However, those were purely theoretical considerations which, as far as I remember, never had any practical results.
However, in a case which involved the principle as such, a case which referred to concentration camps, the decision was made at the very beginning of the war, and the witness Markl mentioned it. That decision referred to a man called Zemlitzschka, and in that case a legal principle for concentration camps was evolved, a principle which attracted a great deal of notice at the time, and of which the concentration camps strongly disapproved. That principle stated that the inmate in a concentration camp, just like any other creature, has the right of self defense.
DR. KOESSL: I have no further questions, but I would like to reserve the right, if necessary, to cross-examine the affiants.
THE PRESIDENT: The witness is excused.
(Witness excused)
Does the counsel for the defendant Rothaug have his documents ready to introduce at this time?
DR. KOESSL: Your Honor, as far as I know there are still two English document books available, but the further document books are not yet available. I would therefore ask you to allow me to present all document books together, as soon as I have procured all the English translations.
THE PRESIDENT: We suggest that the defense counsel and the prosecution confer in advance as to what exhibits are to be offered so that exhibits may be offered more expeditiously. I see no reason why you shouldn't be able to say, for instance, that you offer exhibits 1 to 100 inclusively, and counsel then states what if any objections he has to any of the exhibits contained in the exhibits offered.
This is an appropriate time to call attention of the defense counsel to the fact that there is a deadline which must be met for the completion of this case, and I think we should tell you frankly that if the cases of the other defendants should be drawn out to as great a length, and unnecessary length, as we think, as has been the case with the testimony of the defendant Rothaug, an emergency would arise near the end of the case which night work great hardship upon the last defendants to present their cases. Now that simply means that you gentlemen of the defense must cooperate for your own mutual benefit in seeing to it that no one defendant absorbs so much time as to result in hardship to the last defendants who present their cases.
You may proceed, then, with the defendant Barnickel.
DR. TIPP (Counsel for the defendant Dr. Barnickel): Your Honor, with the permission of the Tribunal I would like to present my evidence by examining the witness in his own case. Would you permit the defendant Barnickel to enter the witness stand?
THE PRESIDENT: The defendant Barnickel may take the witness stand and be sworn.
DR. TIPP: May I make a technical remark? I have a number of documents which I would like to offer during the examination of the witness. I have been told by the Defense Center that my document book was distributed on Friday, and therefore I don't think there is any reason why I should not offer documents from that book during my examination.
THE PRESIDENT: You may do so.
PAUL BARNICKEL, a witness, took the stand and testified as follows:
JUDGE BLAIR: Hold up your right hand and repeat after me the following oath:
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)
You may be seated.
THE PRESIDENT: Dr. Tipp, I have your report, I think, but I don't recollect--how many document books have you requested?
DR. TIPP: So far I have submitted two document books. One has already been distributed; the other one has not yet been completely translated.
THE PRESIDENT: Thank you.
DIRECT EXAMINATION BY DR. TIPP:
Q Witness, please tell the Court your name and the date and place of your birth.
A Dr. Paul Barnickel, born on the 4th of May, 1885, in Augsburg.
Q Please give a brief description of your education.
A I attended the grammar school, the Humanistk Gymnasium, at Augsburg, and Munich and Erlangen Universities. I spent six months of my student days in Paris. I had been to Paris while I was a schoolboy; my mother came from Paris. When I returned from the Paris University--at that university I had attended lectures on jurisprudence philosophy, and history--I spent some time in England. When, in 1907, I had passed my first examination, I went through the usual preparatory service, and in December of 1910 I passed my big state examination.
Q Please give us a brief account of your legal career up to 1933.
AAfter I had passed the big state examination I joined the staff of the well known machine factory Augsburg-Nurnberg at its seat at Nurnberg. I spent a year there. Part of the time I worked in the factory, and part of the time in the legal office.
Then, I worked as an attorney in Nurnberg. In the spring or 1913 I joined the prosecution office at Nurnberg. From that time onward my career was the usual career in Bavaria, that is to say, it was the usual career for people who had passed their state examination with a good grade.
That is, one alternated between the work of a judge and a prosecutor until, at a later age, as was the custom, one finished one's life work as a judge.
Q Witness, I suppose when you worked at a machine factory that was something unusual, was it not? Will you tell us briefly, please, why you went to work in a factory?
A In view of the conditions which prevailed in the Administration of Justice at the time, it took some time until one was given one's first state post, and until one obtained such a post one could do what one liked. I joined the staff of that factory because that was the main place where the Diesel engines were being made. The inventor of that engine, Dr. Rudolf Diesel, was my mother's brother, and since my boyhood I had been greatly interested in the manufacture of those engines. However, I worked there as a voluntary worker, as a trainee, and when I had been there for a year I left, because I had achieved what I had set out to achieve, and I wanted to earn more money, because, shortly after my examination, I had married.
Q Please go on, now, describing your career after this interruption.
A: At the end of 1919 I became a civil judge in Munich. I worked in Munich until 1938, although I held various posts. At the time of the seizure of power I was an investigating judge; before that I had been a judge in a Civil Chamber. In recognition of my work at the Civil Chamber it was suggested, in 1932, that I was to be employed, at a later time, at the Reich Supreme Court.
DR. TIPP: May I offer, in Barnickel Document Book I, Barnickel Document 1, as Barnickel Exhibit I? It is an affidavit by President of a District court Dr. Heinrich Kuehlewein, given on 4 February 1947. The witness, at the time which Barnickel has just mentioned, was his superior, and in this exhibit he confirms that because of his qualifications Barnickel was suggested for employment with the Reich Supreme Court. The exhibit number of this document is No. 1.
THE PRESIDENT: Just a moment. On what page of the document is that?
DR. TIPP: On page 1, Your Honor.
THE PRESIDENT: The exhibit is received.
BY DR. TIPP:
Q: Witness, I will now ask you, were you ever actually employed at the Reich Supreme Court?
A: Not to begin with. I was a Landgerichtsrat, a District Court Counsellor, at the time, and, starting from that office, I could not go to the Reich Supreme Court as a Reich Supreme Court Counsellor or Reich Chief Prosecutor. I had to get to a higher grade first. Furthermore, for the moment, I was interested in staying in Munich because of my family being there.
Q: What do you mean when you say because of your family?
A: As I have already pointed out, I had married young and I had lost my wife during the influenza epidemic in 1919 which followed the First World War, and I had a son. Later I married again, and my wife, who had lost her husband in the first World War, also had a son; and we also had a son from our second marriage.
At that time our three sons were still at school, and therefore I wanted to stay in Munich. May I add that I lost both my sons in the last war.
Q: You have just given us an account of your career until 1933, Witness, would you now please tell the Tribunal whether you were active in the field of politics, and if so, in what way until that time?
A: Up to 1933 I did not engage in any political activity, apart from the fact that when there was an election I voted for a conservative party, but I never voted for the Nazi Party. Naturally, I was interested in political developments in my homeland. Occasionally I went to listen to a political speech and I also listened to Hitler, who lived in Munich, but I was interested in entirely different matters. Moreover, among Bavarian judges it was a general custom not to join any one party, and I approved of that custom.
Q: After the 30th of January 1933, politics entered the life of the individual to a far greater extent than before. What was your position after 1933 concerning political questions, in particular concerning the Party and Hitler?
A: May I first state the following? For about 20 years I have kept a diary, almost continuously. To begin with, the purpose of that diary was only to make entries on my own life, the life of my family, in broad outlines. From 1933 onwards, however, politics entered the life of the individual so much that I frequently made entries that referred to political matters.
I still have some of those diaries available, and I believe that my attitude in those days can be described best by making reference to my diary. As to your question as to my position concerning Hitler and the Nazi party -- I should like to answer that first by giving you two extracts from my diary. The first extract is from the 1st of February 1933, and it says:
"The radio announced the news that Hitler had become Chancellor, but the Cabinet has been formed in such a way as to give him little free hand. Fortunately, Seldte and Hugenberg are in the Cabinet, and above all, Papen too. I don't like Hitler."
A later extract, from the 11th of March 1933, says:
"I was very depressed when I got home that day for it was obvious, of course, that the Nazis had now seized power and that far beyond the extent which was allowed to them on the parliamentary basis."
May I add this? When the SA Sturm in Munich had liberated national socialist prisoners from a prison, the very next day Frank, the Minister of Justice, sanctioned their release, and I made the following entry on the subject:
"Today I read in the Muenchner Neuste Nachrichten that Frank has ordered that the prisoners are not to be returned because it was unworthy for the Administration of Justice to deprive Adolf Hitler's heroes of their liberty. Finis Justitiae."
Q: May I interrupt you briefly? What did you mean when you said "Finis Justitiae", "end of justice"?
A: When I said "Finis Justitiae", I didn't mean to say that there would be no justice at all. However, I was of the opinion that one could not tear such a hole into the concept of justice without that tear broadening and gradually destroying the entire concept as such.
Q: Was there anything else that you wanted to say about that question, witness?
A: Yes, there are some more short entries which explain my position quite clearly. On the 11th of March, 1933, for example, I wrote:
"For decades one worked oneself to the bone to do one's duty, and this is the end, contempt of Justice. Yesterday I got terribly excited about the whole matter for, after all, this is the collapse of the idea for which one has lived."
On the same day I made another entry, and I wrote down:
"What we need is a renaissance of mentality, all decent mentality has been lost; and what we need at this moment is purity and decency. Those things which we have to witness now are the very opposite."
I ended my entries for that day with the words:
"The attitude of the National Socialists will be revenged, that is certain, but years will go by until the change."
I believe I have answered your question.
Q: According to that quotation which you have just read, on the 11th of March 1933 you wrote that years would go by until a change would occur. Would you tell us, please, what made you prophecy, so to speak, at that time, that National Socialism would collapse one day?
A: Now that fourteen years have gone by I cannot give you any details as to what my thoughts were when I wrote down that sentence, but I believe I may say that at the time from my ideology, I believed in the power of good, and I also believed that humanity should develop upwards and reach a higher level.