A. The General Prosecutor was intent to see that the directives of the Reich Ministry of Justice concerning the pleas of the prosecution were abided by, and repeatedly expressed, to the officials themselves that it was his desire that these directives should actually be carried out. If these directives would not have been applied in sessions, then the General Prosecutor, by report, would have demanded explanations by indorsement as to why these directives were not carried out. I know of one case, myself where a prosecutor was disciplined by the General Prosecutor because he did not follow those directives concerning the measures of punishment.
Q. If I understood you correctly, Witness, by "higher ups" you mean the immediate superior office, that is, to say, the General Prosecutor?
A. Certainly, I could only speak of the office immediately superior to mine, and to whom I was immediately responsible.
Q. In the same sentence you mentioned the word "reprimand" or "reporach"?
A. Yes.
Q. May I ask you to explain this to us in a manner that will make it clear to all of us, just as to how we should understand it?
A. By reprimand I did not mean a disciplinary measure, but just a reproach on the part of the General Prosecutor or with the threat that under certain circumstances he would have to take measures in order to prevent further activities of that particular prosecutor.
Q. That is to say, a reprimand on the part of the General Prosecutor to the prosecutor immediately subordinate to him?
A. Yes.
Q. Witness, after these two terms are clarified, I cannot quite understand how you could say that you and the rest of the prosecutors who were subordinate to the General Prosecutor could have been under any compulsion from Cuhorst. I would like to ask you to clarify that once more. You have explained to us quite clearly that you were afraid of the General Prosecutor and that he was the only one who could issue any directions to you.
JUDGE BRAND: Just a moment please. Dr. Schilf, may I ask you what interest you have in cross examining this witness other than to ascertain whether his testimony applied to either Klemm or Mettgenberg. Is that not a limitation upon your interest in the case?
Dr. Schilf; Yes.
JUDGE BRAND: Have you not elicited from the Witness, when he spoke of reprimand or a matter of that nature, that he was not referring either to Klemm or Mettgenberg. I think that is clear to us. Is it not to you?
DR. SCHILF: I have to beg your pardon your Honor, I have one other question and that is----
JUDGE BRAND: (Interposing) Does it relate to your clients?
DR. SCHILF: Yes, it relates to my clients.
BY DR. SCHILF:
Q. Witness, before I put the second question to you, I have to return to the preliminary question, that is, the preliminary question; why you felt forced by Cuhorst, apart from the wishes of the General Prosecutor--
MR. LA FOLLETTE: (Interposing) I object to this line of questioning, your Honor. The defendant can be represented on cross examination by one counsel, and surely he cannot be represented by two, one counsel who is the attorney for two other defendants.
I object to the question as not being pertinent to any issue or pertaining to the defendant of Dr. Schilf, and coming after the cross examination by Cuhorst Counsel.
THE PRESIDENT: Dr. Schilf, you were asked by one of the members of this Tribunal in what way the question would affect your clients. It does not yet appear how it affects them or whether it affects them at all or not; and before we know that we cannot know whether to approve of you going ahead.
DR. SCHILF: I did not intend to explain the purpose of my question at once because I wanted to have the preliminary question answered. However, if the Tribunal desires to know the purpose, wants me to tell the purpose of my question, then it is the following: The Prosecution has set fourth that the courts were directed by the Reich Ministry of Justice. Therefore, according to the assertion of the Prosecution there was an immediate influence in the administration of justice and its jurisdiction.
THE PRESIDENT: My recollection of the answer was that the directive from the Ministry of Justice was not the court but to the prosecution. Am I wrong about that?
DR. SCHILF: Mr. President, I have gone a step further with my question. I am no more concerned with the reprimand. I am not concerned with a further completion of the question which refers to the fact that the prosecution has asserted that the judges were immediately directed, that by the Reich Ministry of Justice. My question which I should like to out to the witness now-
THE PRESIDENT: The testimony of this witness was that the directives came to the prosecution.
We have not heard this witness say that any directive from the Ministry of Justice came to the court, and your question assumed that it was directed to the court. That is my inquiry.
MR. LA FOLLETTE: Your Honor, please, I think, for myself, I am satisfied with what Dr. Schilf has in mind, but I do not believe it is proper cross examination. There is evidence in the record, in documentary form, that there is a directive from the ministry of Justice to the judges, but it was not so testified to by this witness; therefore, Dr. Schilf is attempting to reach an issue and refute it. I do not believe he can do it by cross examination of this witness, but he must do it by direct examination, of a witness of his own.
DR. SCHILF: May I say one more thing. The witness has made an affidavit, the contents of that affidavit could be the subject of cross examination, subject to cross examination. I am compelled to out that question because of that one sentence in the affidavit. The so called measure directing the steering of the measures involved. I believe I am correct in putting t is question. Although, the witness in the direct examination was not asked about these steering or directing measures, but there is something in the affidavit to that effect.
JUDGE BRAND: What is the sentence in the affidavit to which you refer. Will you read it?
DR. SCHILF: On the last page, page 2 of the affidavit of 10 January 1947, it is about in the second half of the page, it begins: "I should also like to mention that during the proceedings, after the presentation of the evidence, the prosecutor got in touch with the presiding judge of the court. He was ordered to make his plea according to the sentence.
And that also applied to Cuhorst. During that meeting, he was often of a different opinion than the prosecution, and made it clear that he would act according to his own Intentions. We, on our pert, were forced to bow to his wishes since a deviation of the plea from the sentence would have caused a reprimand."
THE PRESIDENT: The Court sustains the objection.
DR. SCHILF: What objection is meant by that? I did not hear an objection on the part of Mr. LaFollette.
THE PRESIDENT: I thought Mr. LaFollette had made an objection. In any event it's a question -
MR. LAFOLLETTE: I think I said -- maybe we weren't clear -- that there was evidence in this record in other places connected the judiciary with the Ministry of Justice but then I didn't find it in the testimony of this witness and for that reason I objected to his being cross examined.
THE PRESIDENT: It docs appear that there was an objection and the objection is sustained.
MR. LAFOLLETTE: Then I have no more questions. Your Honor, we can put in maybe two or three documents this afternoon but not very many. I am wondering whether defense counsel and the Court want to -- when they want to argue this pending motion or whether they would rather decide it on the written briefs of counsel or whether defense counsel wants to argue it. I do think it should be disposed of. If defense counsel wish to argue then in addition to their written motion then I will certainly accomodate them. If they do not desire to I am willing to lot it be submitted in the written motion but I do think -- I seem to be very fast again -- but I do believe that it should be disposed of because it's been pending quite awhile.
THE PRESIDENT: I had understand Dr. Schilf to say that additional memorandum would be provided.
MR. LAFOLLETTE: It hasn't been provided to me. I haven't received it. I can furnish then copies and copies can be made.
DR. SCHILF: Mr. President, I don't know whether the memorandum of the 7 April 1947 of the entire defense was already admitted to the Tribunal.
It has the date of the 7 April 1947. If that is in the hands of the Tribunal then as far as I am concerned, I don't know if all my colleagues are of the same opinion, I have only one more statement to make. That is the following: as far as we defense counsel could find out in Case No. 1, the first trial, the defense agreed that on the basis of the first -
MR. LAFOLETTE: If Your Honor please, I have no further re-direct examination. I am terribly sorry. I would like to have the witness excused, and I hope that Dr. Schilf will excuse no but I don't like to see the witness sit in the stand all day.
THE PRESIDENT: The witness may be excused.
MR. LAFOLLETTE: The witness may be excused. I have finished. I had finished. Come ahead. I had just forgotten he was there.
DR. SCHILF: May I repeat? Defense counsel has found out, having been informed that in Case No. 1 in the doctors' case, the defense counsel in that case to a limited extent agreed that witnesses of the prosecution who are here in the Witness-house in Nurnberg can only be interrogated through a Commissioner, that is, an official of the Tribunal for the defense. Our motion of the 7 April 1947 contains at the same tine the request to amend Rule 23. I believe that that motion as far as procedure is concerned is correct. Ordinance No. 7 of the Military Government of the 18 October 1946 entitled "Constitutional Competency of Certain Military Tribunals" on 17 February 1947 was corrected by Military Government. In the Supplementary Decree of the 17 February 1947 by Art.
3, Ordinance No. 7 by including a new Article 5-B was amended to state that also upon motion by defense counsel a plenary session of Military Courts can take place, if a rule of procedure which was accepted for one Military Tribunal is not being accepted by the other Military Tribunal. It isn't sure to me whether the Tribunal - the Rule of the 17 February 1947 - if that is not the case I should like to read it. It's Art. 5-B, First Paragraph A.
THE PRESIDENT: Is that the original Ordinance No. 7 that you are referring to or an amendment of it?
DR. SCHILF: The Amended Ordinance No. 7 which has the number 11.
THE PRESIDENT: What paragraph of that amendment are you now proposing to read?
DR. SCHILF: 5-B, sub-paragraph A.
THE PRESIDENT: Well, you may read it. Then we will all have it before us.
DR. SCHILF: A plenary session of Military Courts may be called by each one of the Presiding Judges of the Military Court or upon motion to one of the Courts on the part of the Chief Prosecutor for War Crimes or the defense counsel of any one of the defendants whose interests are concerned and findings of a Military Court which concern an important material or technical question and are in contradiction with the findings of another Military Court are incompatible with it may then be discussed and examined. End of quotation. Since our motion of the 7 April 1947 is concerned with a change of Rule of Procedure No. 23, therefore, I as defense counsel of the crime concerned and my colleagues will state that on their part would like to second the motion.
I want it to be made clear that I make that motion now. May I carry further on? It only refers the fact that for this procedure that these proceedings be asked for a change of Art. 23 and move that witnesses who are here in the Nurnberg Prison may be examined by the Defense Counsel without a Commissioner - without supervisory officials.
JUDGE BRAND: I have the English text of Art. 5-B before me and it must be the authentic text. It authorizes counsel for the defendant to make the motion which you have made, to review an interlocutory ruling. This Court hasn't made an interlocutory ruling as yet. We think this motion premature. You are suggesting that a joint session be held on a matter on which we have not yet ruled.
DR. SCHILF: May I say the following? I have before me the Rules of Procedure, the heading of which reads "Office of Military Government, U.S.", sub-title "Uniform Rules of Procedure, Military Tribunals, Nurnberg." I emphasize that it says "Uniform Rules of Procedure for the Military Tribunals" plural and the date given is revised to 1 April 1947. In these so-called Uniform Rules of Procedure under Art. 23 we find the heading "Commission ers" and there we find that again the defense counsel has made the motion on 7 April 1947. If the Tribunal does not consider these uniform rules of procedure binding for this Tribunal then of course, we do not see any cause to call a plenary session on our part because the notion won't be possible. If the Tribunal is bound to these uniform rules of procedure, if that is not the case then the motion can remain as it was specified and formulated on 7 April 1947. May I therefore ask the Tribunal to include the matter of these Uniform Rules of Procedure in their deliberations.
MR. LA FOLLETTE: I still believe that the request for a joint session will be premature at this time. As I read the motion, it is a motion asking this Tribunal to modify Rule 23. Also, of course, it addresses itself to the second part of my motion, but primarily it asks this Tribunal to modify Rule 23. Now, I believe that that is still a Tribunal matter until the Tribunal should deny the motion, in which event there will he a ruling from which a request for a joint ruling could lie. I believe that this Tribunal must first rule on the request to modify. That is my thinking on the matter.
THE PRESIDENT: It seems very clear that we have not yet reached the point for calling a joint session. One of the primary things I can think -- one of the primary things I think we ought to have settled now, is about this additional memorandum which I understood that Dr. Schilf would submit. Am I wrong on that?
DR. SCHILF: That is correct. However, may I emphasize the following: If we want to question witnesses now, who are inside the Nurnberg prison, we cannot interrogate them freely because Rule 23, I would like to say, automatically is applied against us, but that is a ruling according to the Uniform Rules of Procedure of April -- In other words, in practice, these Uniform Rules of Procedure, including No. 23, are automatically applied. Therefore, if we want to interrogate a witness who is in the prison, or the witness house, we can only interrogate him if a commissioner of the Tribunal is present. For that reason we believed that we should assume that these Rules of Procedure, these Uniform Rules of procedure, including Rule 23, should be applied in our case. Apart from that, it is clear, if the Tribunal does not accept these Uniform Rules of Procedure, that then a change in practice would be necessary -- a change in that practice which is valid until today concerning witnesses whom we want to interrogate.
THE TRIBUNAL (JUDGE BRAND): As I understand it, Rule 23, now is the uniform rule of all of the Tribunals.
That is not a part of Ordinance 7, that is a rule adopted by the various Tribunals. Now you are moving in behalf of the defense, to change what is now a uniform rule. You are asking this court to do it for this court. We have not ruled on that, and the provision in the amendment to Ordnance 7 merely authorizes the request for a joint session of the judges to review an interlocutory judgment, which we have not made. Therefore, the motion is premature insofar as it relates to the joint session. It is not premature insofar as counsel asks this Tribunal to amend a rule.
MR. LA FOLLETTE: That is my understanding, but I also believe, I understand, that the Presiding Justice, that in some way the Bench has not received what I have received, which is a written motion of defense counsel. It has been submitted to me within time. Now, whether the Bench has it or not, I don't know.
MR. LA FOLLETTE: I am advised by Dr. Schilf that it was submitted for general distribution and should be with the Tribunal.
THE PRESIDENT: We will recess at this time, but when we resume our session tomorrow morning we would like to then hear from counsel as to whether or not there should be an amendment of Rule 23, applying to this court only, (The Tribunal recessed until 0930 hours, 15 April 1947.)
OFFICIAL TRANSCRIPT OF THE AMERICAN MILITARY TRIBUNAL IN THE MATTER OF THE UNITED STATES OF AMERICA AGAINST JOSEPH ALSTOETTER, ET ALL DEFENDANTS, SITTING AT NURNBERG, GERMANY, ON 15 APRIL 1947, 0930, JUSTICE CARRINGTON T.
MARSHALL, 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 please ascertain whether the defendants are in court?
THE MARSHAL: May it please your honors, all the defendants are present in court with the exception of defendants Engert and Rothaug, who are absent due to illness.
THE PRESIDENT: They have been excused, and proper notation will be made. The ruling will be made upon the motion that has been filed, at the resumption after the morning recess, and the Tribunal does not desire arguments.
MR. LAFOLLETTE: Your Honor, at first -- of course -we have not been advised of that -- we had laid down plans on the theory that the Tribunal would want argument -- I am compelled to ask the Tribunal to give as four or five minutes until we can get something into the courtroom at this time. I am sorry; we had not anticipated -
THE PRESIDENT: If you desire to give anything additional to the court it may be done before the morning recess, and it may be considered at the recess, and it, the ruling, will be announced after the recess.
MR. LAFOLLETTE: On the motion, I have no more -- but we will ask your indulgence for a few minutes while we get some documents in here to present, because we had not anticipated this action by the court.
Your Honors, please, I do feel under some obligation to make a short statement for the record, out of fairness: when this motion originally arose I said I thought it had been held up by Mr. Nissley in the Secretary General's office; I checked with him and find that the original statement of mine was erroneous and I want to absolve him from any inference of blame.
MR. KING: We have circulated a document which is No. NG-199A. It is a part of the Document NG-199 which appears in the Document Book 1B.
THE PRESIDENT: Has that been introduced in evidence?
MR. KING: It has not been introduced in evidence. That appears on page 123 of Book 1B. And the reason it wasn't introduced in evidence, your Honor, is because the part which I circulated was, until recently, not processed and ready for distribution.
THE PRESIDENT: I have that document but I didn't bring it with me.
MR. KING: Document 1B in the---
THE PRESIDENT. I have 1B -- but you refer -- on, 199 is in 1B.
MR. KING: Yes, in other words, your Honor, the Document which we have just circulated supplements the document which in now in Book 1B. Before I proceed to read a few paragraphs from that document I might recall -- it has been some time ago -- that we, on time, attempted to introduce this Document NG-199. There is some discussion of the objections raised by counsel to be found in the transcript at pages 282-284, in English. Briefly, the objection raised by defense counsel was to the first page, page 123, Indictment Book 1B. The material on that page, in part, is a decree which the prosecution asserted, at the time it was first sought to be introduced, -- was a decree actually published in the Reichsgesetzblatt.
We feel now, upon investigation, and quite in line with objections raised by defense counsel, that may not have been published, that it may have been merely a draft, and so in all fairness to defense counsel we would not offer, we will not offer, in evidence the first three pages of the document appearing in Book 1B, on pages 123, 124, and 125. The rest of that document, beginning on page 126, and continuing through 133, we will off in evidence, together with the supplementing 199A, which the members of the Tribunal have before them. I may also say that this supplement has been circulated according to the rules of Defense Information Center. We have distributed additional copies mere for the convenience of those who may not have brought their delivered copies with them today. May I ask the court and defense counsel to turn to page 126.
THE PRESIDENT: We at this time -- by omitting the first three pages, does that remove the objection made by defense counsel?
MR. KING: I am sure it does, your Honor, because the objection went only to the decree which actually is only on the first page of this document. However, the following two pages--
THE PRESIDENT: One moment please. It seems the switch was off, so I want to make inquires so that defense counsel could answer. My inquiry is whether, by eliminating the first three pages of Document 199, does that remove the objection which defense counsel had made to the document originally?
MR. KING: My answer is that I believe that it does, because their objection went only to the decree, which is only a part of this document. We are admitting, for purposes of this document, that decree may not have been published, and if it was not published we do not want to introduce it, of course, as an official decree.
THE PRESIDENT: We hear no objection, therefore, I assume you are correct.
MR. KING: May I ask the Court and Defense Counsel to turn to page 126 in the English text. I am sorry I do not have the page number in the German text.
JUDGE BRAND: May I ask you whether the original 199 and 199-B are offered as a single exhibit?
MR. KING: That is correct.
On page 126 of the English document book is a letter dated Berlin, 20 October 1942. There are two mistakes in that letter in the English version which I wish to call to the attention of the Court at this time. In the address to the Reichminister of Justice, it says in the English text: that should be shown in the original, to the Reichsminister and Chief of the Reichs Chancery.
Also in that letter, the first three paragraphs on page 126, on the original, is initialed by Thierack, and Thierack's initials have been left off of the copy in the English text. The initials should come right opposite the notation of page 6 of the original on the bottom of page 126 in the English text.
The letter reads:
"The task assigned to me by the Fuehrer of establishing a National Socialistic Justice requires that I be not hampered by present legal dispositions in the enforcement of measures affecting personnel. On the one hand it may involve officials of my ministry who on grounds of their personality are not suited for the new tasks and will need to be transferred to other more suitable positions. On the other hand the possibility may arise that directors of offices and leading officials of the higher grades of service which do not fit into the new set-up, may have to be used elsewhere or be retired. Finally it may become necessary, in some particular cases to transfer or to retire such judges as cannot be kept on in their present positions.
The authority given me by the Fuehrer on 20 August '42 provides the legal basis for the execution of such individual measures.
I therefore ask for your approval, so that in urgent cases judges and officials of the Reich Administration of Justice may by me be transferred to other positions with the same rate of salary, or to positions with a scheduled lower salary, but allowing them to keep the titles and the salary rate of their former positions, or may by me be retired".
That is all of that particular letter we wish to read.
May we ask the Court now to turn to page 128 in the english text. That is a letter over the signature of Bormann. And, if is dated, Fuehrer's Headquarters, 3 March 1942. It is addressed to the Reich Minister of Justice. The body of the letter reads as follows:
"The desired approval is given herewith in general terms. In so far as Reich Minister Dr. Lammers proposes to reserve to the Fuehrer the pensioning of a Justice official to the same extent as before, I approve this change.
"Heil Hitler!"
Signed, "E. Bormann."
May we turn not .....
(Defense Counsel confers with Mr. King.)
There seems to be some difficulty with Defense Counsel. I think we should get it on the record. May I ask the spokesman for the Defense Counsel to tell us what it is that seems to be missing from the document which we are in the process of presenting.
(No response from the Defense Counsel)
I understood a few moments ago that part of their document was missing; is that not the case?
DR. PETERSDORF: May it please the Tribunal, may I try to clarify this problem. The Defense Counsel received the document NG 199; that is the Decree which the Prosecution has just mentioned, but the Defense Counsel also received NG 199-A. This is in addition to the decree which is a list of those judges who were submitted for retirement, and that is all. The letters which have just been read by the Prosecution are not included either in the document book nor in the supplement.
MR. KING: The Defense Counsel is perfectly right. The letters which we have read apparently still do not appear in the German book. Naturally I think they will be handicapped unless those letters are before them, and I think it would be unwise to proceed to introduce these documents at this time. Since we have had some discussion however, of the documents which we do not propose to introduce, portions of which we do not propose to introduce, I think when we do want to introduce these documents, we will rectify again or try to rectify again, the deficiency in the German book, but when we get around to introducing them again I will not, at that time, go into an explanation of the decree. We will proceed to introduce the balance of the documents as we have attempted to do for the second time here this morning.
May I ask the Court to turn to document book 3-D.
THE PRESIDENT: What are your plans about putting an exhibit number on the documents at this time, and whether you wish to retain it or withdraw it?
MR. KING: It might be better, your Honor, if we give them an exhibit number at this time. It will be Exhibit No. 243; since we have gone a considerable stop in the direction of introducing it. I would suggest that we do indicate the exhibit.
THE PRESIDENT: All right.
JUDGE BRAND: Is it Exhibit 243?
MR. KING: Yes, 243.
We turn now to document book 3-D, and I will refer to the last entry in that book, which is document NG 459. It appears originally on page 115 in that document book. The text in the English was incomplete. We have, therefore circulated a complete copy of this document, and I believe it is now before the Tribunal.
THE PRESIDENT: You wish to substitute the complete document for the one in the book?
MR. KING: That is right. The original document as it appears in the book should be deleted and the one which has been handed to you this morning should be substituted for it.
May I ask the Court to turn to page 10 of the document as circulated. This is a case which appeared before -- it was heard before the Special Court for the District of the Court of Appeals, Nurnberg. I would like to read a portion of the verdict appearing on page 10:
"In the Name of the German People!
The special court for the district of the court of appeal Nurnberg at the district court of Nuernberg-Fuerth.
Finds in the criminal case against:
JANKOVIC Ljubinko, born on the 3.10.1918 in Belgrade, unmarried waiter in Belgrade and lately of Nuernberg, now remanded in custody pending trial on this charge: an offense has been committed under article 4 of the decree against Public Enemies.
In public session of the 26 January 1945, those present being:
The president: director of the district court : OESCHEY Assistant judges, counsellor at the Landgericht:
Dr. HOFFMANN The public prosecutor MARKL and as Registrar:
KRUEGEL In accordance with the law:
The accused stole linen and clothes from an airraid shelter partly under aggravating circumstances. He is condemned to death, as a Parasite of society."
MR. KING: And on the following page we continue reading the statement of the facts and the charges against the accused:
Reasons:
The defendant, a Jugoslav citizen grew up in his birth-place and attended the Elementary School there for four years and the Continuation School for three years. He then worked as cook and waiter in Jugoslavia, lastly in Belgrade. At the beginning of November 1944 he alleges that he had to flee from the Bolschevists with a collective transport into the Reich. In Vienna he left this transport arbitrarily, in order to wander around in the Reich.