The article was published in the year 1937; it was published on the 20th of April, 1937, and the author is the defendant Klamm. The article illustrates Klemm's attitude at that time concerning the fact that the Party should not be granted any privileges.
I offer this document as Exhibit 37.
THE PRESIDENT: It is received in evidence.
DR. SCHILF: My next document is another article from the same periodical, Deutsche Justiz, and again the author is Klemm. This article was published in 1938. The article points out that slogans such as "clarity of justice" are not to be used for the purpose of muddling the issues.
I offer this as Exhibit 37-A.
THE PRESIDENT: No. 37-A is received.
DR. SCHILF: The next document is another affidavit by Dr. Heinz Kuemmarlein. That is to say, I am introducing a second affidavit. Dr. Kuemmerlein was in the Reich Ministry of Justice, where he was the Referent for Juvenile Criminal Law. As Klemm, at the Party Chancellery in Justice Group III-C, also dealt with juvenile criminal matters, coordination was necessary between him and Kuemmerlein. Kuemmerlein describes the type of cooperation which occurred between the two agencies. He gives reasons as to why the problems pertaining to certain groups of juveniles, particularly foreigners, were not specifically dealt with in Reich law. I offer this document as Exhibit 37-B.
THE PRESIDENT: It is received.
DR. SCHILF: I am now coming to supplement - I beg your pardon, Your Honor. I am now coming to Document Book VI. Document Book VI has a supplement. May I ask the Secretary General to let the Tribunal have both books at the same time, as Number 51 is in the main book, and later on I supplemented it.
May it please the Court, I wish to make an addition. Exhibit 40, which has just been handed to the Secretary General, is an affidavit by Baldur von Schirach.
To begin with, at the session of 7 August 1947 Mr. La Follette objected to this affidavit, but later on he withdrew his objection, and the Tribunal has already accepted this exhibit.
THE PRESIDENT: That is correct.
DR. SCHILF: It was only by mistake that it was not handed to the Secretary General on the 7th of August. I do it now.
THE PRESIDENT: Do we have English copies of that?
DR. SCHILF: Yes, Your Honor. It is contained in Document Book 5. All numbers in Document Book 6 and Supplement Book were reserved for me by the Tribunal. The first number is 42. May I say by way of introduction, Document Book 6 deals with the so-called Judges' Letters, the entire problem of the so-called guidance. As I did before, here again I mentioned the subject of the general defense every time on the first page of the document.
No. 4-2 is an affidavit by Dr. Erich Schmidt-Leichner. SchmidtLeichner at the end of 1942 became the Referent for Judges' Letters at the Ministry. Schmidt-Leichner is Professor of Criminal Law at the University of Berlin. Schmidt-Leichner, until the last moment, dealt with the editing of the Judges' Letters. He is in a position to give all decisive information about the way those Judges' Letters came about and also about the way they were edited. He can also speak about their purpose and about all details connected with the Judges' Letters. In particular he is qualified to speak about the confidential nature of the Judges' Letters. Schmidt-Leichner's specialized knowledge is very extensive --
THE PRESIDENT: Of course, counsel understands that without any disrespect for the statements made by counsel as to the value of these persons, their wisdom, and so on, that the Tribunal can only consider as evidence what is in evidence. If the document snows the wisdom and the experience of the witness, then it is before us. Otherwise it is not.
DR. SCHILF: I merely wanted to point out to the Tribunal that Schmidt-Leichner is an expert
THE PRESIDENT: If the exhibit shows it, we will understand it.
DR. SCHILF: I am offering this document as Exhibit 42.
THE PRESIDENT: It is received.
DR. SCHILF: The next numbers, 43 through 50, are various extracts from the Judges' Letters.
I think I may abstain from making any references to the text, as these extracts speak for themselves. I wish to offer Nos. 43 to 50 as documents for Klemm and the general defense.
THE PRESIDENT: They are received.
DR. SCHILF: The next is Document 51. It is contained in the Supplement Book. May I ask the Tribunal to turn to the Supplement Book. This document is an affidavit -
THE PRESIDENT: I don't believe we have the supplement book. Is it all in one bound volume?
DR. SCHILF: According to the English text that I have before me the affidavit by Link is contained in Supplement Book 6, and the number is 51.
THE PRESIDENT: I have no 51. This book runs from 50, Exhibit No. 50, as it is marked, to Exhibit 52 as next. 51 is omitted.
DR. SCHILF: In the main book, and therefore a supplement book was produced. I am just having one copy sent to the Tribunal for the information of the Tribunal.
THE SECRETARY GENERAL: I don't have a supplement book.
THE PRESIDENT: Well, 51 appears to be the affidavit of Hans Link.
DR. SCHILF: Yes, Your Honor.
THE PRESIDENT: And in the index Exhibit 51 appears to be the affidavit of Hans Joachim Lehmann.
DR. SCHILF: That index is incorrect, and because of the mistake that was made there a supplement hook was produced and the index in that supplement book is correct. Please take out 51 because 51 doesn't belong in the main book.
THE PRESIDENT: Then I understand that Document Book 6, Supplement, contains 51 and that only.
DR. SCHILF: Yes.
THE PRESIDENT: It is received.
DR. SCHILF: In the main book this collection of documents continues with No. 82.
That contains a clipping from a newspaper of March, 1946. It is relevant in connection with the conditions prevailing in Germany at that time and that under the sovereignty of the Control Council the same situation continued. The Judges' Letters which were issued by the Reich Ministry of Justice wished that such attacks on the judiciary were to be prohibited and to show the contradiction here I am offering this document.
THE PRESIDENT: Exhibit 52 is received.
DR. SCHILF: 53 is another clipping from a newspaper, 12 May 1947. It is all from Document Book 6.
THE PRESIDENT: 53 is received.
DR. SCHILF: The next document is 54. It also contains extracts from a newspaper, the newspaper of Saxony, and the date is 14 June 1946. I offer Exhibit 54.
TEE PRESIDENT: '47, isn't it?
DR. SCHILF: No. 54.
THE PRESIDENT: 14 June 1947?
DR. SCHILF: Yes, yes. I beg your pardon. 1947. The next document belongs to the same series. It is also an extract from a newspaper from the year '47, 12 May 1947, and the exhibit number is 55.
THE PRESIDENT: These exhibits are received for such, if any, probative value as they may have. Note the date.
DR. SCHILF: The last document from this book is 56 and it is very illuminating. The date is the 5th of October 1942, and it is a letter, a so-called circular decree from the Reich Ministry of Justice to all General Public Prosecutors at the District Courts of Appeal and to all the higher justices, and that is to say the judges at the Reich Supreme Courts and the District Courts of Appeal, or rather only their presidents. The matter deals with the subject of the so-called guidance, that is to say, cooperation between the prosecutors and the courts. This letter of October 1942, this letter by Thierack, already contains instructions to the effect that no influence Bust be taken on the judges due to such cooperation.
I offer this document as Exhibit 56.
THE PRESIDENT: It is received.
DR. SCHILF: May I now ask the Secretary General to produce Supplement Book 8 and give it to the Tribunal. Book 8 has two documents. Would you kindly make a change in the index. It should be 69 and not 68-B. I apologize for the mistake. These two documents deal with lynching. The first document 68-A contains Pimmler's secret decree of August 1943. That date 1943 is important. According to that decree Himmler at that time had already instructed his police not to interfere when the population committed acts of lynching enemy airmen who had bailed out. I offer this document as Exhibit 68-A.
THE PRESIDENT: 68-A and 69 are received.
DR. SCHILF: 69 is an affidavit and it has already been received, and the Tribunal has stated that it will receive it and I need not give any further explanation. 69 has been received.
THE PRESIDENT: We will recess until 1:30 this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 5 Sept.
1947)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: The question concerning Exhibit Klemm 16-A has been solved. It was duly received and is in evidence.
DR. SCHILF: Thank you, Your Honor.
THE PRESIDENT: The Secretary's record shows it.
DR. SCHILF: May it please the Court, in my main volume 8 there is Exhibit 68, which I still have to deal with. That is an affidavit by Friedrich Wilhelm Kritzinger. On 7 August this exhibit was not accepted and it had not yet been settled as to whether Kritzinger was in tho prison here or not. I have contacted Mr. LaFollette and we have agreed that I am now to submit this exhibit 68. The Tribunal has already got the English translation in its possession, and it is contained in main volume 8. I now offer this affidavit. It is concerned with the establishment of tho summary court, tho civilian courts martial. The exhibit number is 68.
THE PRESIDENT: Does the Prosecution withdraw its objection?
Mr. LAFOLLETTE: Yes, Your Honor, with this understanding, that if Kritzinger is here in the jail, he will be produced as a witness and then the affidavit may be disregarded. I don't believe he is any more in the jail.
THE PRESIDENT: Very well. That will be received. Tho former action of the Tribunal was that tho exhibit was rejected.
MR. LA FOLLETTE: Yes.
THE PRESIDENT: That action is rescinded, and by agreement of the parties the exhibit is now received.
DR. SCHILF: I am now going to submit Supplement Book 8. I beg year pardon. I mean I have now finished with Supplement Book 8. I am now coming to Supplement Book 9. This volume contains two documents; one is the affidavit by Dr. Friedrich Preiser. Preiser, who was at the Reich Ministry of Justice, was able to observe Klemm at work. In particular he was able to make observations about his relations with Thierack. I offer this as Exhibit 74.
THE PRESIDENT: Exhibit 74 is received.
DR. SCHILF: The last document I wish to introduce, Your Honor, is No. 75. This is an affidavit by a Dr. Hans Wogatzky. He deals with Klemm's work in Department II, the department which dealt with personnel matters and training matters. Wogatzky gives a detailed account of Klemm's work.
I offer this document as Exhibit 75.
THE PRESIDENT: The exhibit is received.
DR. SCHILF: May it please the Court, for the moment I have no further documents to offer, but I have to ask you to allow me to reserve the right to submit such documents later which have not yet been translated and I also have three affidavits by three Dutchmen who are at the Dutch Ministry of Justice. One of them wants to supplement his affidavit, and I have not yet received the supplement. Therefore I ask to reserve the right to introduce at a later date these few documents which I do not have available at the moment.
THE PRESIDENT: The Tribunal will rule upon matters of that type when they are presented. However, counsel must realize, all of you, that documents which have not even been presented for translation and processing and which are so presented after this time are entirely within the discretion of the Tribunal, whether they should be received or not. We will pass on that when it comes up.
DR. SCHILF: May it please the Court, should use this opportunity to say something about these proceedings at the latest stage. The defense case is now nearing its end and there are still a few open questions which have to be discussed. Concerning the Klemm case as early as June and July I made motions to examine two witnesses under cross examination. The are affiants whom I intend to examine under cross examination. The people whom I wish to cross examine are a Frau Leppin and a Dr. Franks.
THE PRESIDENT: Spelling, please?
DR. SCHILF:L-a-p-p-i-n. That woman witness' name was contained on a list which I submitted to the Tribunal when the Prosecution had finished its case. My second witness is F-r-a-n-k-e. The Prosecution at the end of its case brought an affidavit by Franks and I asked for permission to cross examine that witness. Further, the Tribunal has already agreed that I may examine three more witnesses, and the Tribunal agreed to that in June. One is H-a-r-t-m-a-n-n. The second is M-o-e-l-l-e-r.
May I point out that Mr. Schaefer of the Defense Center want to a great deal of trouble to produce the witnesses Hartmann, Moeller, and Franke, who are at a British camp and to have them moved to Nuernberg. A few days ago I heard that Hartmann and probably Moeller, too, are still at Camp Eselsheide near Paderborn. Repeated applications have received no attention. I submitting my evidence for Klemm at the beginning of July I asked the Tribunal, according to the rules of procedure in the version of 1 April 1947, Paragraph 12, Section d, to make a ruling. May I now recall ruling -
THE PRESIDENT: What citation were you giving us? I didn't understand that. What rules?
DR. SCHILF: The rules proceeding of the Military Tribunals at Nuernberg, Your Honor.
THE PRESIDENT: Will you give that again? I didn't understand what you were referring to. What section were you referring to again?
DR. SCHILF: Article 12, Section d. May I quote that article 12 d? May I read it out?
The PRESIDENT: Yes.
DR. SCHILF: "If the witness is not within the territory which is under the jurisdiction of the occupation authorities of the United States in Germany the Tribunal, through the prescribed channels, may approach the Allied Control Council with the request concerning the measures for the summoning of such a witness to take these measures, such as the Tribunal may consider necessary for a proper conduct of the defense."
The Tribunal had already agreed that I may call those witnesses, and therefore it seems to me obvious that the Tribunal considered it proper for the defense to call such witnesses. May I add that I have said several times that I cannot waive my examination of the witness Hartmann. Moeller is equally important, and I hear that some of my colleagues also want to examine the witness Hartmann.
May it please the Court--I beg your pardon--I have just been told that the witness Hartmann is already here. Yesterday apparently he hadn't arrived yet. But may I point out that what I have said is still true in the cases of Moeller and Franke.
THE PRESIDENT: Let me see if we understand you. As to the witnesses Frau Lappin and Franke, they have both presented affidavits for the prosecution and you want to cross examine. Hartmann is out of the problem. Moeller has not been examined by the prosecution but you have received permission of the Court to call him as a witness for the defense. Is that correct?
DR. SCHILF: That is correct, Your Honor.
THE PRESIDENT: Of course, counsel for both sides must appreciate the difficulty of getting witnesses, and the fact that the Tribunal has no magic method of producing them by waiving a wand. We will do everything in our power to influence the powers that be to procure the witnesses which we have authorized you to examine, and that is the full extent to which we can go.
DR. SCHILF: I thank you, Your Honor. But there is one more point I want to discuss. As early as June, I made a motion, and it was agreed to, and that motion concerned some files which I wish to produce. Those files are in the Document Center in Berlin and with other former justice authorities for instance in Duesseldorf, As I said, all my motions were agreed to at the time.
THE PRESIDENT: You mean the Court allowed your motion?
DR. SCHILF: Yes, Your Honor. But it seems that there are unsurmountable difficulties in obtaining these files. I, myself, cannot understand why the difficulties should be so great though, in the Defense Center, Major Schaefer there took great trouble to procure them. At least such files as are in Berlin at the Document Center at the former Patent Office should be available without difficulty.
The prosecution has to dispose of these files, but yet they don't get them. Therefore, I should like to voice a request for Mr. La Follette to make a statement as to whether he can help me in getting these files, for which I asked a month ago, and for which my request was authorized.
THE PRESIDENT: Will you describe the file and tell us where it is.
DR. SCHILF: That first document is composed of files of the Reich Ministry of Justice from the year 1934. The file note is given in detail, in my motion of 28 June 1947. The decision of the Tribunal of 3 July 1947. I have before me. Perhaps, Your Honors, it is sufficient for me to quote that ruling by the Tribunal. The second document contains files front the General Public Prosecution Office at Magdeburg. I have before me, the ruling which the Court made on the 26 June 1947 and according to that ruling my request was agreed to.
The third document contains files from the Office of the General Public Prosecutor at Duesselaorf. I made my motion on the 11 of June 1947 and on the 26 of July the Court ruled on the matter. Then there are personnel files from the Reich Ministry of Justice. They are at the Document Center, Patent Office in Berlin, Friedenstrasse. My motion was made on the 11 of June 1947 and the Court ruled and granted my request on the 26 of June 1947. Finally, there are files from the Reich Ministry of Justice which concern the Hohenstein Case. My motion was made on the 11 of June 1947. The Tribunal on the 26 of June gave its ruling and granted my request. These files too are in Berlin at the Document Center.
The last document concerns the so-called distribution of work plan from the years 1937 and 1938. My motion was made on the 11 of June 1947. The Court ruled and granted my request on the 26 of June 1947. as concerns the files which I mentioned last, I believe that the prosecution will be able to help me. As far as I know, even the work distribution plans for the years 1937 and 1938 might be available here in Nurnberg because before this trial opened an interrogator apparently showed those plans to one of the defendants.
Those are all my motions concerning files.
MR. LA FOLLETTE: I will start the last one first. If the 1937, 1938 Work Distribution Plan is here in Nurnberg, there could only be possibly one or two men that might have it. I didn't know it was wanted. If we have it, I will get it for him. As to what is in Berlin, this prosecution staff has no more ability to get this than the Defense Center or Dr. Schilf. We have always taken the position that we would do everything that we could to permit defense counsel to go to Berlin and by what request we could make here under the rules that are preserved up there to go in and rake use of what is there to find their files. But the prosecution has not the staff, either this team nor OCC to go out and search out among the documents requested. That is all I can say about the files in Berlin at the Patent Office or at Fuensburg or at Duesseldorf. Certainly, we have no one who can go to Duesseldorf.
Now with reference to Frau Leppin and Franke, we tried to get Frauke down here desperately. As a matter of fact, the Court may recall that we had several minor delays. I have no objection to the defense taking a counter affidavit from Franke if they can get to him. The same way with Frau Leppin. I seen to have no way to get her down here. She, as I understand, lives in the Russian zone of Berlin. I have heard that she was up here but I tried to get here as a witness rather than to use the affidavit. I couldn't get a hold of her. The Russians reported at that time that we have given them the residence of a bombed out house.
With reference to Moeller, if he can get located, I have no objection to their taking an affidavit. Possibly if they will notify us, we might be able to find someone to go along and we can conduct an interrogation together. That is the best that I can do. I have no objection to counter affidavits being taken out on our two affiants. As far as Moeller is concerned, of course, it's beyond our part to get him.
THE PRESIDENT: The difficulty in obtaining witnesses from the Russian zone is know to the Tribunal. I think you will probably have to content yourself with taking counter affidavits of those witnesses, Dr. Schilf. It's not the most satisfactory form, as we have often said, but we can't get witnesses here. Counsel consents to a waiving of the general rule, and that a counter affidavit may be taken from Leppin, from Franke, and Moeller.
MR. LA FOLLETTE: There is no counter affidavit involved in Moeller, Your Honor. He is a new witness for the defense.
THE PRESIDENT: You consented that he might take an affidavit.
MR. LA FOLLETTE: On him, I'd like to be notified, and if possible, we would like to go there and take an affidavit at the same time.
DR. SCHILF: May it please the Tribunal, I wouldn't like to waive Moeller as a witness in the witness stand here because he is an important witness, and according to the ruling which I have quoted, the procedural ruling I have quoted, there is a possibility to get him here. Because of that, I want to make a motion that he be brought here. As concerns Frau Leppin, I see that there are difficulties. As concerns Franke, who is in a British came, I think that if the Tribunal could decide to apply article 12 (d), in that case I think the difficulties wouldn't be so bad that we couldn't overcome them. I think we could met the witness here. Therefore, I should like to reserve the right of introducing affidavits of those two witnesses in case we can't get them as witnesses on the stand.
THE PRESIDENT: If they cannot be obtained as witnesses on the stand, you may take affidavits. As to any order that you want made under Article 12 of the Rules of Procedure, we suggest to you that without argument and in specific and brief language you present a written motion to the Tribunal expressing exactly what you want the Tribunal to do.
DR. SCHILF: I shall do that, Your Honor.
THE PRESIDENT: It will be necessary to show in general terms what the expected evidence will be.
DR. SCHILF: I have no further statements to make, Your Honor.
DR. HAENSEL (for the defendant Guenther Joel): May I introduce documents which I still have to introduce as supplements? During the examination of Guenther Joel in the witness stand, I submitted my exhibits 1 through 53. Some of them only had been identified. Today, I am starting with Exhibit 54. The document is contained in my Book, I, and the number of this Joel Document is 2.
THE PRESIDENT: Will you repeat that statement, please? Your last exhibit number was what?
DR. HAENSEL: 53. Today I shall start with 54. Exhibit 54 will be the exhibit number for my Joel document No. 2. It is contained in Document Book I, and the page number is 4.
THE PRESIDENT: We have a Joel Document Book, haven't we? We have received that.
DR. HAENSEL: The Document Book I through TV are available. They have boon handed to the bench. This Document Book I contains extracts from the Reichsgesetzblatt -- The Reich Legal Gazette -and to supplement the extracts which my colleagues have introduced, I wish to submit documents which deal with the police as the auxiliary organ of the prosecution.
THE PRESIDENT: The Exhibit is received.
DR. HAENSEL: The next document is also contained in Document Book I. It is Document No. 14. The Exhibit No. will be 55. The page number is 66 in the English text and 83 in the German text.
THE PRESIDENT: The exhibit is received.
DR. HAENSEL: In the same document book, the last document, Document 20, is an affidavit by Hans Hasselberger. It appears on Page 121. The exhibit number will be 56.
THE PRESIDENT: The exhibit is received.
DR. HAENSEL: Document Book II contains a document 22, an affidavit by Franz Hagemann. The exhibit No. is 57.
THE PRESIDENT: The page?
DR. HAENSEL: Page 6. And the next document -
THE PRESIDENT: 57 is received.
DR. HAENSEL: The next document 23 is on page 9. The Exhibit Number will be 58. It is an affidavit by Kurt Hennecke.
THE PRESIDENT: That is in Document Book II?
DR. HAENSEL: In Document Book II, Page 9.
THE PRESIDENT: It's received.
DR. HAENSEL: The next document in Book II, on page 12, is Document 24. The Exhibit Number will be 59. It is an affidavit by Wilhelm Marotzke.
THE PRESIDENT: Just a moment.
DR. HAENSEL: I made a mistake there. The affidavit is by Erich Wilms.
THE PRESIDENT: What is your document 24?
DR. HAENSEL: In my Document Book, that is Document 24, Volume 2, an affidavit by Erich 'Wilms, Exhibit No. 59.
THE PRESIDENT: Was Exhibit 58 the HEnnocke affidavit?
DR. HAENSEL: 58 is the affidavit by Frau Hennecke.
THE PRESIDENT: What is your document 23 that I have here?
DR. HAENSEL: Hennecke.
THE PRESIDENT: What was your document 22?
DR. HAENSEL: Hagemann.
THE PRESIDENT: Is your Exhibit 57, Document 22?
DR. HAENSEL: Yes.
THE PRESIDENT: And 58 is Document 23?
DR. HAENSEL: Yes.
THE PRESIDENT: 59 is Document 24?
DR. HAENSEL: Yes.
THE PRESIDENT: All right. They are received.
DR. HAENSEL: Document 26 is an affidavit by Dr. Rudolf Lehmann, Book II, Page 17, and the exhibit number will be 60.
THE PRESIDENT: Received in evidence.
DR. HAENSEL: In the same volume, on Page 7O, there is Document 38. That is an affidavit by Dr. Werner Best, No. 1
THE PRESIDENT: What do you mean by No. 1? I don't understand.
DR. HAENSEL: There are two Best affidavits in my book.
THE PRESIDENT: Well, this is Document 38, and you want it marked Exhibit 6l, is that right?
DR. HAENSEL: Yes.
THE PRESIDENT: It's received.
DR. HAENSEL: The next exhibit is Document 39. It is contained on Page 72 in the same document book. These are extracts from the Deutsche Juristenzeitung and the Exhibit No. will be 62.
THE PRESIDENT: Received.
DR. HAENSEL: The next exhibit will be Document 40 on Page 73 in Document Book 2. The Exhibit No. will be 63. This exhibit consists of extracts from an IMT transcript.
THE PRESIDENT: Received.
DR. HAENSEL: The next exhibit is 64. That is Document 41, Volume 2, Page 74.
This exhibit again contains extracts from the IMT judgment. Page 74, Volume 2, Document 51 is Exhibit 64.
THE PRESIDENT: Document 41?
DR. HAENSEL: Yes, 41.
THE PRESIDENT: Received
DR. HAENSEL: That finished Document Book II. Document Book III contains the second document on Page 9, Document 49, extracts from the report from the so-called Streicher Commission. The Exhibit No. will be 65.
THE PRESIDENT: Received.
DR. HAENSEL: Document No. 56 in the same volume is on Page 38.
THE PRESIDENT: What is the document number?
DR. HAENSEL: Document 56. It is in the same volume on Page 38. This is an affidavit by Randenborgh.
THE PRESIDENT: Exhibit 56 is received.
DR. HAENSEL: The next document 57 is the Kesseboehmer affidavit, on Page 40, and the Exhibit No. will be 67.
THE PRESIDENT: Received.
DR. HAENSEL: The document 63, the Herpell affidavit -- Oh, no, I left one out. Exhibit 58, I beg your pardon. No -- not exhibit -- I mean Document 58 -- I beg your pardon. The affidavit by Wilhelm Budde, on Page 42, will become Exhibit 68.
THE PRESIDENT: Received.
DR. HAENSEL: The document 63, the Herpell Affidavit, on Page 54, will be exhibit 69.