Transcript for NMT 3: Justice Case

Otherwise, I an quite prepared to introduce it now. I can do it immediately.

THE PRESIDENT: We will have to hear from the Prosecution as to that, and Petersen Document No. 142 is with the Secretary General. There is an affidavit by Weinkauf, an Alstoetter document.

DR. ORTH: Your Honor, I think only one document can be concerned here and I am surprised that it isn't contained in the document books. I wonder if the document which is contained in the document book was not removed by mistake. The new Weinkauf document which I submitted with the request to put it in the book in place of the old Weinkauf document which is quite identical with the other one but the former defects of the first document were put right in the second document. I shall investigate the matter and when I have done so, I shall submit the document here.

THE PRESIDENT: We should like to have the defense prepared to attend to the matter of the Weinkauf affidavit, the Rothaug book No. 10, Petersen Affidavit No. 142, and the Oeschey Supplement No. 1. Will counsel be prepared to take care of those matters tomorrow?

The Prosecution may proceed, Mr. La Follette.

MR. LA FOLLETTE: Yes, Your Honor.

THE PRESIDENT: Dy. Koessl has informed us he is prepared to introduce his book 10, but that he is not sure the Prosecution has seen it. Will you be ready to have it introduced tomorrow?

MR. LA FOLLETTE: Yes, I will check your Honor and I think we can let it go in whether we have seen it or not if we can see a copy in Court.

THE PRESIDENT: You will be prepared for that tomorrow?

MR. LA FOLLETTE: Yes, Your Honor, May I proceed?

THE PRESIDENT: Yes.

MR. LA FOLLETTE: What is the next Prosecution number - 601. Your Honor as Prosecution Exhibit 601, which I offer to introduce in evidence, is document NG 2322. This is directed in rebuttal to a statement made in the affidavit presented by the Defendant Lautz.

THE PRESIDENT: These exhibits are not in a document book?

MR. LA FOLLETTE: They are not, your Honor.

THE PRESIDENT: All right, Exhibit 601, is received.

MR. LA FOLLETTE: In connection with the case of the defendant Schlegelberger, the prosecution offers document NG-2004 as Prosecution Exhibit 602.

JUDGE HARDING: Pertaining to what defendant?

MR. LA FOLLETTE: Against the defendant Schlogelberger, Your Honor. This is an excerpt from "Deutsche Justiz", in which the defendant, on the 14th of July 1939, praised the achievements of the People's Court.

THE PRESIDENT: The exhibit is received.

MR. LA FOLLETTE: As Prosecution Exhibit -- 602, Mr. Wilson?

THE SECRETARY GENERAL: This last Exhibit was 602.

MR. LA FOLLETTE: All right. As Prosecution Exhibit 603, the document NG-2282. That is a letter of the defendant Schlegelberger directing the procedure in plundering cases.

MR. LA FOLLETTE: As Prosecution Exhibit 604, in rebuttal in the matter of Schlegelberger, NG-2218.

MR. LA FOLLETTE: As Prosecution Exhibit 605, document NG-2276. These are certified photographs of action in raids of the Jewish quarter of Amsterdam on February the 22nd and 23rd, 1941.

I have three for the Court, and I will distribute as many as are left to defense counsel. I couldn't get but a limited number. Dr. Schilf, I know, will want one.

MR. LA FOLLETTE: Document NG-2284, the prosecution offers as Prosecution Exhibit 606.

MR. LA FOLLETTE: Document NG-2285 -

JUDGE HARDING: What defendant does that last exhibit pertain to?

MR. LA FOLLETTE: That last one was against Klemm, Your Honor.

NG-2285 the prosecution offers as Prosecution Exhibit 607, which again is against Klemm.

THE PRESIDENT: The exhibits are received.

MR. LA FOLLETTE: Document NG-2277, as Prosecution Exhibit 608, we now offer against the defendant Klemm, Your Honor.

MR. LAFOLLETTE: May I proceed, Your Honor?

THE PRESIDENT: Yes,

MR. LA FOLLETTE:NG-2483, Prosecution Exhibit 609, against the defendant Klemm.

MR. LA FOLLETTE: Document NG-2484 the prosecution offers as Prosecution Exhibit 610, against the defendant Klemm.

THE PRESIDENT: This is a German translation; this is in German.

MR. LA FOLLETTE: It must be by accident. I must have given the wrong documents to the wrong group. I am sorry, Your Honor.

MR. LA FOLLETTE: If Your Honor please, the document NG-2311, Prosecution Exhibit 611, against the defendant Klemm.

MR. LA FOLLETTE: The prosecution next offers document NG-2480 as Prosecution Exhibit 612, against the defendant Klemm.

THE PRESIDENT: Received.

MR. LA FOLLETTE: Document NG-2481, as Prosecution Exhibit 613, against the defendant Klemm.

MR. LA FOLLETTE: Document 3333-PS, as Prosecution exhibit 614, against the defendant Klemm. The Prosecution's Exhibit 614, Your Honor.

MR. LA FOLLETTE: Document NG-2519, as Prosecution Exhibit 615.

Court No. III, Case No. III.

JUDGE HARDING: Is that 15 against Klemm?

MR. LA FOLLETTE: Klemm, your Honor. Document 221PS as prosecution's Exhibit 616 against the Defendand Klemm.

THE PRESIDENT: Exhibits 615 and 616 are received.

MR. LA FOLLETTE: Document 3332-PS against the Defendant Klemm as prosecution's Exhibit 617.

MR. LA FOLLETTE: Now your Honors, 3323-PS, prosecution's Exhibit 618.

THE PRESIDENT: 618 is received.

MR. LA FOLLETTE: Document NG-2310 as prosecution's Exhibit 619, your Honor.

MR. LA FOLLETTE: The following material, if the Court please, the prosecution offers as general rebuttal rather than against any particular defendant. Document NG-2163, prosecution's Exhibit 620.

MR. LA FOLLETTE: Prosecution offers Document 2663-PS as prosecution's general rebuttal, Exhibit No. 621.

THE PRESIDENT: Exhibit is received.

MR. LA FOLLETTE: The prosecution now offers Document NG-2253 as prosecution's Exhibit 622 in general rebuttal. If your Honors please, that is a table which is of necessity written in German but the ranks, I think, are ascertainable to your Honors. It was part of the prosecution's opening statement. The prosecution now offers Document NG-2253 as prosecution's Exhibit 623, general rebuttal.

THE PRESIDENT: We haven't got that yet. We have just been handed several copies of Document 2155. I think that is a mistake perhaps.

MR. LA FOLLETTE: I am sorry, your Honor. We will have those returned.

THE PRESIDENT: Our last exhibit is 622.

MR. LA FOLLETTE: Yes, your Honor, and that should be NG-2253. I now offer NG-2252 as prosecution's Exhibit 623. Defense Counsel stated that they have no German copies of 622 which is NG-2253. That is a table of military and SS ranks and military judges which is found in connection with the opening statement. I simply wanted to make a document of it and we are presently short of mimeographed copies. If I can get them, I will deliver them to you -- but you already have them. I simply want to make a formal document of them, if you don't mind.

THE PRESIDENT: Exhibit 623 is received as a memorandum.

MR. LA FOLLETTE: The prosecution offers Document NG2155 as prosecution's Exhibit 324, general rebuttal. This consists of extracts from the General Assembly of the United Nations on genocide in the Nurnberg process.

MR. LA FOLLETTE: The prosecution next offers Exhibit NG-700 as prosecution's Exhibit 625 in general rebuttal. That is the Hitler Decree of 3 September 1938 conferring power on the Ministry of Justice to grant pardons, about which we have had a good deal of discussion.

THE PRESIDENT: Exhibit 625 is received.

MR. LA FOLLETTE: Prosecution now offers Document NG-1807 as prosecution's Exhibit 626, which is Reichsgesetzblatt 1940, June, which provided that the time spent in prison during the war would not count on the prison term.

MR. LA FOLLETTE: Prosecution offers now Document NG1187, which is prosecution's Exhibit 627. This is an article by Freisler in Deutsche Justiz, 19 December 1941. The prosecution now offers Document NG-2485 as prosecution's Exhibit 628.

I will say to the Tribunal that this is simply excerpts from IMT, which we might have offered as judicial notice, but it's easier to do it this way or fairer to the Court than to read it. It's furnished in German and in English.

THE PRESIDENT: The text of the IMT, the Tribunal will take judicial notice of in any event, whether you put in excerpts or not. It's a public document. It's known to both the prosecution and the defense and the rules provide that we shall take judicial notice of it.

MR. LA FOLLETTE: As prosecution's Exhibit 629, the prosecution offers Document NG-2467.

THE PRESIDENT: Exhibit is received.

MR. LA FOLLETTE: I may say that the prosecution is practically finished with the few scattering documents, one witness in chief; and cross examination of one defense witness, as far as I know, which has been requested.

THE PRESIDENT: We will recess until tomorrow morning at the usual hour.

(The Tribunal adjourned until 23 September 1947, at 1930 hours.)

Official Transcript of American Military Tribunal III in the matter of the United States of America against Josef Altstoetter, et al, Defendants, sitting at Nurnberg, Germany, on 23 September 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 Courts.

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.

THE PRESIDENT: Let the notation be made.

Are you ready to proceed?

DR. ASCHENAUER (Counsel for the defendant Petersen): Mr. President, may I submit, from the supplemental volume, document 142, as Exhibit 138.

THE PRESIDENT: Just a moment, please.

Your next document is 138?

DR. ASCHENAUER: Yes, Mr. President.

THE PRESIDENT: Do you have Exhibit 138, Mr. Secretary?

DR. ASCHENAUER: Yesterday I was told that the document had already been submitted to the Secretary General.

THE PRESIDENT: And that is your document No. 138 also?

DR. ASCHENAUER: Document 142.

THE SECRETARY GENERAL: All my looks have been taken to the stenographers that I had yesterday. I can get them.

THE PRESIDENT: You have had Exhibit 138, have you?

THE SECRETARY GENERAL: I can't tell, sir, until I know what date it was submitted. Was it submitted yesterday?

THE PRESIDENT: Has the Tribunal received your Exhibit 138? Has it been handed up to us?

DR. ASCHENAUER: That is here, Your Honor.

THE PRESIDENT: And have you the copies?

DR. ASCHENAUER: The copies have already been distributed and submitted to the Secretary General. The prosecution has also received the translations.

Now that was a loose exhibit, was it? It was mot in a book?

DR. ASCHENAUER: No, it is a loose document, Your Honor.

THE PRESIDENT: Very well.

DR. ORTH (Counsel for the defendant Altstoetter): Mr. President, the affidavit Weinkauff has been submitted to the Tribunal. I offer it in the place of Altstoetter document No. 28 of document book I, which was also an affidavit of Weinkauff. The original of the new affidavit has already been submitted to the Tribunal. However, by mistake, when the document book was put together, the old affidavit was not taken out and the new one was not put in. The difference between the two affidavits is purely a technical one. There was a question about the preamble to the affidavit.

THE PRESIDENT: Will you give us the numbers again, please?

DR. ORTH: Altstoetter document No. 28, document book No. I, page 99.

THE PRESIDENT: And you are substituting a new instrument for that?

DR. ORTH: A new document, yes, Your Honor.

THE PRESIDENT: What exhibit number?

DR. ORTH: The entire document book was number 1; it was received as Altstoetter Exhibit No. 1. It is Altstoetter document book number I, Altstoetter document 28, part of Exhibit No. 1.

THE PRESIDENT: Yes, I understand.

The new exhibit is received.

DR. KOESSL: (Counsel for the defendant Rothaug): May it please the Tribunal, I should like to submit document book No. X. That document book contains excerpts from the Loewe-Rosenberg commentary to the Code of Procedure.

The first document, No. 222, contains Paragraph 23 of the Code of Criminal Procedure with a commentary, or an interpretation, according to which a judge, on the basis of a decision by the Reich Supreme Court -

THE PRESIDENT: Will you wait until we receive the book, please?

DR. KOESSL: I beg your pardon, Mr. President.

THE PRESIDENT: The first document is document number what?

DR. KOESS: No. 222, Your Honor. I offer this document as Exhibit 189. The last exhibit number, 188, was in Rothaug document book V-B.

DR. KOESSL: The exhibit deals with Paragraph 23 of the Code of Criminal Procedure, and there are interpretations from the commentary of Loewo-Rosenberg according to which a judge, under a decision by the Reich Supreme Court from the year 1881, may sit in the court which decides the plea for the reopening of a case oven though he participated in the formulation of the sentence. In Exhibit 411, Elkar asserts that Rothaug had said that that was an attempt to remove certain sources of dangers which otherwise might exist.

The next document, 223, contains Paragraph 87 of the Code of Criminal Procedure. This is also an interpretation according to which it is the duty of the judge to explain to the experts what is at stake. That goes to rebut the statements by the witness Dr. Xunz, who considered that a limitation of the functions of the expert.

I offer document No. 223, as Exhibit 190.

DR. KOESSL: Document No. 226 contains excerpts from the commentary as to paragraphs 23 and 240 of the Code of Criminal Procedure, with interpretations concerning the position of the presiding judge. These provisions and interpretations, which date back to a time before 1933, should prove how irrelevant the charges are which were made against Rothaug in that connection.

I offer the document No. 226 as Exhibit 191.

DR. KOESSL: Document 228 contains paragraph 258 of the Code of Criminal Procedure with interpretations which prove that the public prosecutor, even before 1933, could refrain from asking for a certain sentence, and that it was not necessary in that case for the public prosecutor to get in touch with the court. Furthermore, the document explains the rights of the presiding judge to interfere with the final plea of the defense without this being considered a limitation of the rights of the defense.

I offer document No. 228 as Exhibit 192.

DR. KOESSL: Document 229 contains paragraph 26l of the Code of Criminal Procedure, with more commentaries concerning the free presentation of evidence. I offer Document 229 as Exhibit 193.

DR. KOESSL: Document 221 contains Paragraph 170 of the Code of Criminal Procedure with a commentary according to which the letter by the investigating magistrate, in the Groben case, to the office of the public prosecutor, could have been taken to the files because it did not represent the transcript of a court session. That document is a supplement to Volume II concerning the Katzenberger case, and it also relates to Exhibit 560. I offer Document 221 as Exhibit 194.

DR. KOESSL: Document 230 deals with the question as to how far the court is bound by a decision of a court of higher instance in individual cases, and it has particular meaning for the Lopata case and the Wendel case. I offer Document 230 as Exhibit 195.

DR. KOESSL: Document 224 should prove that the attitude displayed by Schosser when the Pole was interred could be used as proof in the case concerning the sermon. I offer Document No. 224 as Exhibit 196.

DR. KOESSL: Document 225 proves that the prosecution was under obligation to intercede if a punishable act was reported to it, as, for instance, in the case of Schosser's sermon. I offer Document Rothaug No. 225 as Exhibit 197.

DR. KOESSL: This document, 227, proves that Rothaug acted properly if he put to a witness, who was ready to testify, statements which were made before the police, and that it was also correct to use prior statements before the police as the basis for his questions to a witness. In the Schosser case, for instance, it was asserted that Rothaug had put to the witness Stubenvoll former statements made before the police. I offer Rothaug Document No. 227 as Exhibit 198.

DR. KOESSL: That concludes the presentation of Document Book X. Yesterday, late in the afternoon, I also received Document Book No. VII and Document Book No. IX. If it has been distributed to the Secretary General and to the Prosecution I would be ready to submit these two books also at this time.

THE SECRETARY GENERAL: I shall have to get them. They were not on my desk this morning, sir.

MR. LA FOLLETTE: We have not received it in English. If the Court has, we can proceed with the German, but we have not received the English.

THE PRESIDENT: The Tribunal has not received these books.

DR. KOESSL: Then perhaps I can submit these books in the afternoon or tomorrow.

THE PRESIDENT: As soon as they are received.

DR. KOESSL: Yes, Your Honor.

MR. LA FOLLETTE: If Your Honor please, if no defense counsel can proceed, there is a witness Foetsch, who gave an affidavit on behalf of the defendant Cuhorst, whom I would like to examine on cross-examination, and who is in the building. However, if the Tribunal desires to hear defendants' counsel first, if anyone is ready, I will wait.

I simply notify the Court that I can do that.

THE PRESIDENT: Does any defense counsel have either documents or witnesses available for examination?

DR. DOETZER (Counsel for the defendant Nebelung): May it please the Tribunal, on the 16th of September I submitted Nebelung documents 26, 27, and 28. The Secretary General pointed out to me that it would be expedient to give these documents the same exhibit numbers. That is what I wish to do now. Therefore, they would be Exhibits 26, 27 and 28. That is, the document numbers are 26, 27, and 28, and they would have the same exhibit numbers, 26, 27 and 28.

THE PRESIDENT: The Tribunal has been informed that that may be done, and we will make the proper notation.

You may cross-examine your witness, Mr. La Follette.

MR. LA FOLLETTE: I just want to announce to the Tribunal that the prosecution has now received, in English, Rothaug Books VII and IX, so they should be shortly available for the Tribunal.

THE PRESIDENT: You may cross-examine your witness, and perhaps the Secretary General will have the documents by the time you have completed.

MR. LA FOLLETTE: The witness Marie Foetsch - I think you will either find her in room 126, 123, or with Dr. Brieger.

THE PRESIDENT: Can we, in the period during which we wait for the witness, have any indication from counsel as to what additional testimony or documents they desire to present before the case is closed? Have we any indication which can be made at this time?

MR. LA FOLLETTE: On behalf of the prosecution I will make one, and then leave the podium.

To the best of my recollection and understanding we have one rebuttal witness, which will be against the defendant Joel, involving the transfers or lack of transfers of property in Nurnberg in the 1938 pogram.

That witness ought to be prepared to testify this afternoon. Then I think we will have not more than ten documents altogether, divided between documents against the defendant Rothenberger and against the defendant Joel. I believe that is the extent of the prosecution's rebuttal.

DR. BOTHE (Counsel for the defendant Rothenberger): May it please the Court, the Prosecution, in rebuttal against Dr. Rothenberger, submitted fourteen new documents and produced six new witnesses. The defense intends to call several witnesses, which have been called by us in time by telegram. If the Court decrees, I can give the names of these witnesses now. They are as follows:

Dr. Friedrich Priess, from the District Court of Appeal, Hamburg, who, for many years worked with Dr. Rothenberger.

The attorney Dr. Kurt Bussmann, also from Hamburg.

THE PRESIDENT: Spelling?

DR. BOTHE: It is spelled, B-U-S-S-H-A-N-N-.

The third is the witness Dr. Hans Segelken, S-E-G-E-L-K-E-N.

The fourth is Professor Herbert Fischer, attorney at Hamburg, President of the Hanseatic Bar Association.

Then, the defense intends to recall the defendant Dr. Rothenberger to the witness stand to testify in his own case.

Finally, it is intended to submit a number of documents which are in Rothenberger Supplement Books II and III, and which have been submitted for reproduction but of which we have not yet received the English translations.

We have been informed that the translation of these document books will be available the latter part of this week. Considering the difficulty of the preparation, and the large amount of new material submitted by the Prosecution, the defense will be grateful if the Court would agree to have the defense to begin its submission of material on Thursday.

THE PRESIDENT: May We have an expression from any other of the other defendants, whether they have additional testimony which they desire to produce.

DR. KUBUSCHOK: Dr. Kubuschok for the defendant Schlegelberger and von Ammon. I would like to call the the Court's attention that since my colleague Dr. Schilf is not present, I should like to announce in his interest that he considers the possibility to again call the defendant Klemm to the witness box.

THE PRESIDENT: Thank you.

DR. KUBUSCHOK: For the defendant Schlegelberger, I had yesterday received the translation of the document book, and I will be able to submit that. Another book is still in translation.

THE COURT: That is Schlegelberger?

DR. KUBUSCHOK: Yes, Your Honor, Schlegelberger. Furthermore, the document book consisting of three parts for the defendant von Ammon-- for Mettgenberg, my colleague Dr. Schilf still has to submit, all the document books concerning the first volume, on which he has already made statements yesterday. For the defendant Klemm Dr. Schilf still submits a supplement volume of documents.

DR. ORTH: Dr Orth for the defendant altstoetter. For the defendant Klemm Dr. Schilf will submit a supplement document. For the defendant Altstoetter I still have one document book to be submitted, a supplement volume. I have it already in German. I also have given a German copy to the Prosecution, and as soon as I receive the translation I shall be ready to submit it.

THE PRESIDENT: Insofar as new matter of a specific nature has been presented by the Prosecution in rebuttal, the Tribunal feels that it is necessary and proper that the defendant affected should be permitted in sur-rebuttal to make specific admission of denials or explanations of new factual evidence which may have been presented by the Prosecution in rebuttal. The Tribunal itself desires to be made clear that matters which have already been testified to by the defense in their main cases are not to be repeated in connection with this sur-rebuttal. Such questions which have occupied a great deal of our time and attention in reference to the political attitude and other general matters of that type belonged in your case in chief in the defense, and must not be repeated in this discretionary extention which we are giving you for the purpose of only replying to new matter of a specific character which a presented by the Prosecution in rebuttal. I am sure that counsel understand the necessity for this limitation. Insofar as the few documents that were introduced in rebuttal by the Prosecution of a general nature as applying to all the defendants, we suggest you follow the procedure previously adopted, and to designate one of your number to handle the matter for all, if you find it necessary to discuss it at all. We also suggest to you that at this late stage in the case, it is desirable that we put all of the energy which counsel can exercise into getting the witnesses disposed of. As to the document books, if there be a few held over perhaps, we can receive them even after we have taken our recess, if they can not be presented sooner; we hope they can be presented soon, but as to witnesses, we desire to close all matters up this week. You may cross examine your witness, Mr LaFollette.

MR. La FOLLETTE: Yes, Your Honor.

MARIA FOETSCH, a witness, took the stand and testified as follows:

JUDGE HARDING: will you raise 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)

JUDGE HARDING: You may sit down.

GROSS EXAMINATION BY MR LA FOLLETTE:

Q. Now you are the same Maria Foetsch who gave an affidavit signed on 14 July 1947 for the defendant Cuhorst?

A. Yes.

Q. Now do you have with you in the witness box all the record which you kept of them on Dr. Moessner's cases?

A. Yes.

Q. Dr Moessner was an attorney at law at Stuttgart?

A. Yes.

Q. You were his secretary?

A. Yes, I was.

Q. Now will you turn to the entry made on 5 August 1942 in the matter of Pietra?

A. Yes.

Q. And tell this Tribunal what you find?

A. Yes, I have already opened it on that page. Yes, I have found it

Q. What is the first entry on the left? Now, is that the date?

A. No, that is the number from the list of cases.

Q. Yes, and what is that number?

A. 1206.

Q. And then the next number to the right, the next figure to the right, what does it represent?

A. Sir, it was received 5 August, entry, 5 August.

Q. Now the receipt, that refers to what? What did you refer to when you said "receipt." What part of the case?

A. Dr Moessner was assigned to it, when he received the case.

Q. I see. What did you receive, a notification of employment, or a summons, or an oath. How was that done so that you made that entry?

A. An assignment just came.

Q. Then the next entry that you have to the right, what do you have there?

A. That is the name, Pitra, Stanislaus.

Q. And then occurs the page. What next entry do you have there?

A. That it was marked what kind of a case it was; a crime against the decrees against Poles.

Q. Yes, and that entry that you made, as I understand it, you made either from the summons, or from the nature of the case, or it was described in the notice employing Dr Moessner as an attorney?

A. Yes. That is to say, I did that when it was written on a slip that we received.

Q. That would be either a slip employing Dr. Moessner, or of notifying him of his employment, is that right, by the Court?

A. Yes, yes, on that.

Q. Or a summons, then you would take it off of the summons, one way or the other, is that right?

A. Yes, if the summons came together with it. Usually there was just a slip there.

Q. And you made the entry as soon as you received the slip in the book which you have there?

A. Yes, because on the slip I could see what it was.

Q. Yes, all right, and what is the final entry on there?

A. The case was considered ready to be filed on 21 September 1942.

Q. Does that entry indicate when you say "the date" when that case was disposed of, or what was the occasion that caused you to put that date down?

A. Probably that is when we were paid on the finishing of the case for Dr. Moessner.

Q. Yes. Now you state in your affidavit that to the best of your recollection there was no death sentence in the Pitra case?

A. Yes.