Has not been a soldier. Has repeatedly been noticed for his pro-Jewisn attitude. Repeated mistakes in dealing with people. Soft, political reliability doubtful. In principle agrees to superannuation."
That is all the excerpts from NG-199 that we wish to read into the record at this time. We, therefore, offer as Exhibit 143, that exhibit number having been given to it yesterday -
JUDGE BRAND: 243.
MR. KING: Excuse me, I seem to be one hundred off. We offer as Exibit 243 the Document NG-199 and NG-199-A.
THE PRESIDENT: The documents may be admitted in evidence.
MR. KING: Your Honor, the next document is quite long, and it will take approximately half an hour to introduce it. I wonder if this would not be a good time to recess.
THE PRESIDENT: This is oar usual time for recess, and we will not take a fifteen minutes recess.
(A recess was taken)
THE MARSHAL: Persons in the Court will find their seats.
The Tribunal is again in session.
THE PRESIDENT: Before we begin the session, I would like to ask Mr. LaFollette a question. Inasmuch as we will adjourn at the adjournment time, and not have a session this afternoon, and not have another session until tomorrow; having in mind the suggestion that you made to me during the recess, about needing a little time tomorrow; if you want that time in the morning, we should fix a definite time as to when we will meet tomorrow morning.
MR. LA FOLLETTE: I am hoping the witnesses I have in mind will get in this afternoon. If they are not tired, I can interview one witness, at least, tonight. If I can get two I won't need any time at all, but otherwise I might prefer to have, say an hour or two between the time this witness leaves the stand and the next witness comes on.
THE PRESIDENT: As far as you know now the adjournment will be until 9:30 tomorrow morning.
MR. LA FOLLETTE: Yes, until the regular time tomorrow morning.
MR. KING: May we turn first to document book 3-G. Document NG-153 which appears as the last item in the index of document bock 3-G, and starts on page 115 in the document book itself, will be when formally offered in evidence exhibit 246. There has been an error insofar as the continuity of pages are concerned in the document that appeared in the original document book, as it was distributed. We therefore, have circulated another copy correctly assembled of the document NG 153, and will present certain excerpts from the document in the order in which they were recently distributed. If my memory serves me correctly, the documents are in proper order in the German text.
THE PRESIDENT: What about document NG 414? What status does that have?
MR. KING: Document NG 414 was the one introduced yesterday by Mr. LaFollette, and I will ask him to tell the Court about that.
THE PRESIDENT: I am merely considering the exhibit number.
MR. LA FOLLETTE: That, if Your Honor will recall, was completely withdrawn, so it carried no exhibit number. I am waiting to hear from Dr. Schilf before offering it again.
THE PRESIDENT: Was NG 249 given an exhibit number?
MR. KING: I think we had better wait until it is actually offered before we give it an exhibit number because there may be from now until the time it is processed and ready to be introduced, several exhibits introduced.
I suggest that the document NG 153 which has just been handed to the Court be numbered as follows: On the first page, page 1, be given the number 115, and thereafter consecutively, and the last page will be 127. The first letter as a part of this document appears on page 115. It is dated Munich, 23 April 1944, and is addressed to the Reichchsminister and Chief of the Reich Chancellery. It reads as follows:
"Subject: Issuance cf certificates of good conduct or recommendation of applications for pardons for "public enemies."
"Dear Dr. Lammers:
"As an enclosure you will find a copy of my decree 73/44 of 30 March 1944 through which by order of the Fuehrer I forbade all party members to issue certificates of good conduct or recommendations of applications for pardon concerning public enemies. I would be obliged if you would issue corresponding instructions to the highest Reich authorities.
"Heil Hitler!
"Very truly yours, "M. Bormann."
The next document is the decree to which Bermann referred to in the letter which I just read. It begins on page 116, and I would like to read nearly all of that at this time. It reads as follows:
"Re.: Issuance of certificates of good conduct, recommendations and judgments by party members.
"The attitude of the German people is admirable in spite of the severity of the war and the deprivations connected with it. Our enemies try in vain to disrupt the unity of the German people's community because they know that they can defeat the German people not through military measures but only through undermining the morale.
"Public enemies, people who spread the lies of foreign radio stations and above all defeatists are aiding the enemy, and must be eliminated from the community of the German people without any regard to the individual concerned. Unfortunately it could be observed in many cases that such public enemies approach men of influence either directly or through acquaintances and relatives, and that subsequently certificates of good conduct are issued more or less carelessly and without examination of the facts which were the basis of the indictment or of the sentencing. All kinds of accomplishments of the defendant or his family are listed in order to achieve a more lenient judgment of the defendant. In other cases the impression is created that the German people under no circumstances should or could do without the professional qualifications of the defendant. Professional and expert performances or relations to prominent people are not mitigating or exonerating circumstances for criminal actions against the people and the Reich.
By order of the Fuehrer I therefore forbid all party members to issue certificates of good conduct or recommendations for applications for pardons for public enemies.
"Certificates of good conduct and opinions in regard to applications for pardon are to be given only by the competent authorities.
"Signed: M. Bormann" The next letter is on page 113, and is dated, Berlin, 14 May 1944, and it reads as follows:
"Subject: Issuance of certificates of good conduct or recommendation of applications for pardons for public enemies.
"With reference to the conference of 2 May 1944.
"Dear Herr Bermann!
"I consider to phrase the circular letter to the supreme Reich authorities concerning the issuance of certificates of good conduct or support to applications for pardons for public enemies in accordance with the attached draft and would appreciate your letting me know whether you approve of this version, and whether you consider it necessary to ask the Reich Minister of Justice for his consent to this circular."
There fellows a draft of a circular which we will not read. We do want to read, however, the letter which appears on page 121, addressed to the Reich Minister of Justice, Dr. Thierack. It is dated Munich, 23 April 1944, and which says:
"Dear Dr. Thierack!
"As an enclosure you will find a copy of my decree 73/44 of 30 March 1944 through which, by order of the Fuehrer, I forbade all party members to issue certificates of good conduct or recommendations for applications for pardon concerning public enemies. I requested Dr. Lammers today to issue a corresponding regulation for the jurisdiction of the supreme authorities of the Reich.
"I would be obliged to you if you would inform the justice authorities about my decree and the according circular of the Reich Minister and Chief of the Reich Chancellery with the remark that the courts and the offices of the public prosecutors too have to refrain from requesting such certificates of good conduct and recommendations.
"Heil Hitler "Yours "M. Bormann" Also we would like to read the letter on page 122, which is dated Berlin, 6 June 1944.
It is addressed to Dr. Lammers, and signed by Thierack. It relates to the same subject and it reads as follows:
"Dear Dr. Lammers!
"I agree to the draft of a circular to the supreme authorities of the Reich concerning the issuance of certificates of good conduct or recommendations of applications for pardon for public enemies which was sent to me with the letter of 2 June 1944.
"Thierack."
MR. KING: We turn now to page 124, to the letter dated Munich, 29 May 1944, addressed to Dr. Lammers, signed by Bormann and I want to read only a part of that short letter beginning with the sentence in the middle of the page that is underscored:
"I do not consider it correct for official certificates of good conduct for criminals who committed crimes against the people to be issued without request and my opinion is that the request for such recommendations should, as far as possible not be made.
It seems necessary to me to reach an agreement with the Reich Minister of Justice on that circular. On 23 April I already sent him a letter, a copy of which is enclosed"
MR. KING: That is all of this document that we care to read at this time. We therefore offer it as Exhibit 246, the Document NG-153.
THE PRESIDENT: The document will be admitted in evidence.
MR. KING: May we turn now again to the Document Book 3-F. The Document NG-481 which will become Exhibit 247 when formally offered appears on page 33. However, the document starting on that page is incomplete, at least in the English text and we now circulate for the benefit of the Court a copy of that document which is complete.
THE PRESIDENT: And the first one will be eliminated.
MR. KING: The first one will be eliminated and the one which you have now will replace it. This is a case of double jeopardy heard originally before the Nurnberg Special Court. As was the practice there was first a trial, then a consideration of the verdict, a plea of nullification and then another trial. I will read first from this document excerpts from the first trial before the Nurnberg Special Court.
I might say as to the manner in which the document should be numbered, starting with page 32-A as the first page, the next page being 33 and from there running consecutively through the last page which will become 53. I am sorry there is one additional fact that should be called to your attention there. They run consecutively through page 8 of the document as circulated, page 8 being page 40 and the next page should be 40-A, the next 40-B and so on through. I should spell this out more specifically. Starting following page 40 the pages should be numbered a,b,c,d, and e. Then beginning with the page 9 of the document as circulated, that page should be 41. The number consecutively, then 44, 44 being page 12 of the document as circulated, than the next page is 44-A, page 13 of the document as circulated is 45.
THE PRESIDENT: That is numbered in the document itself.
MR. KING: Has it been numbered in your document?
THE PRESIDENT: Yes.
MR. KING: If they are someone has done us a great favor. I have been talking bout of turn. I have a more efficient secretary than I thought. May we turn first then to page 33. May I withdraw that? I may refer to it later. For continuity I think first we will begin with page 35. This is from the indictment in the case of Therese Mueller and I read beginning with the first full paragraph approximately in the middle of the page:
"The son of the defendant, Ernst, served in the army at the Eastern front. In December 1941 the defendant wrote a letter to him to the front. In this letter she said that no German soldier would return from there because of the great cold, and he would also freeze to death.
If he would like to save his life and to free her from anxiety for his life, he should do something to get home. If this should not be possible he should become a prisoner of the Russians. In a letter of 20 February 1942 (this letter did, however, not reach the addressee) the defendant referred to the first letter and wrote: "Dear Ernst, I can only repeat my advice. There is simply no other possibility for you. Either the one thing or the other. Well, go ahead. I am looking forward to it with joy......go ahead, what I told you already." That the attitude of the defendant is hostile to the state, and communistic as can be seen easily from her letters. In a letter of 27 February 1942 the defendant wrote amongst other things: "Now, your comrade Sernau has been here again. He is still in Wuerzburg. He does understand how one can become unfit for the front. This is worthy of recognition."
MR. KING: Continuing with the indictment on page 35-A:
"This deed is a crime according to Sec. 5, Par. 1, subpar. 2 of the Ordinance of the Extraordinary War Penal Law.
"According to Arts. 7 and 8 of the Code of Criminal Procedure and Par. 14 of the Competence Ordinance of 21 February 1940, Reichsgesetzblatt 1, 1940, p. 405. The Special Court for the area of the Nurnberg Appelate Court is competent to try the case."
MR. KING: There follows other matters pertaining to the pending trial. We now turn to page 36 of the English where we note that Dr. Ferber was the Presiding Judge and the associate Justices were Dr. Hoffmann and Groben. Returning further in the minutes of the first trial we note on page 38 that after a closed session the following sentence in the presence of the public prosecutor and of the defendant by reading the form of judgment by giving essentials of reasoning:
"In the name of the German People:
Mueller, Therese, nee Burger, born 27 Nov. 1885 in Konnersreuth, widow, living on a pension, guilty of a crime of undermining the fighting morale is sentenced to five years penitentiary, to forfeiture of civil rights for five years, and to costs. One month of detention remand has to be deducted from the sentence."
MR. KING: For information of the translators, do you have the section entitled "Minutes?"
THE INTERPRETER: I am afraid we havn't.
MR. KING: The portion which I have just read appears later as the very last part of the section entitled
THE PRESIDENT: The translation came through, as we understood it, in any event.
INTERPRETER: Thank you, we have found it.
MR. KING: I will not read further from the opinion in the first trial of the case of Therese Mueller before the Special Court. We are interested only in noting that the woman was tried in accordance with the indictment and given a five-year penitentiary sentence.
We now turn to page 41. This is the opinion of the Reich Supreme Court on the petition for a plea of nullity:
"In the name of the German People:
"In the criminal proceedings against Therese Mueller, living on a pension in Nuremberg, at present in the Aichach penitentiary for women for the crime of undermining the fighting morale, the Reich Supreme Court, first Senat in criminal proceedings, has pronounced, in open session of 2 February 1943, in the presence of the Judges Schultze and Ziegler, Dr. Rohle, Guth, and Sponsel, of the officials of the prosecution during the trial, Chief Public Prosecutor for the Reich Dr. Righter and, at the pronouncing of the sentence, Director of the District Court Dr. Sandrock, upon the plea for nullity of the Chief Reich Prosecutor, the following sentence:
"The sentence by the Special Court for the district of the Appellate Court Nuremberg at the Nuremberg-Fuerth District Court of 27 June 1942 is suspended as far as the imposed penalty is concerned, including the forfeiture of civil rights and the deduction of the time in detention on remand. Suspended are also the statements of fact in regard to the decision about the penalty. The court of first instance is ordered to proceed anew within the limits of the above suspension, and to pronounce a new sentence.
"Reasons:
"The Special Court has stated that the defendant has persistently, in several letters to her son who served on the Eastern front, attempted to influence her son to desert to the enemy, and that she indulged, towards him, continuously, in deliberate Communistic propaganda which was filled with hatred.
"The Special Court was right in its statement that these acts constitute the crime of undermining the fighting morale according to Paragraph 5, Article 1, No. 2 of the Special Military Penal Code, and sentenced the defendant to five years' penitentiary.
"In the reasons for the award of punishment it is stated: Con sidering the extreme graveness of the crime there is only one circumstance in favor of the defendant, and that is that as a mother she feared for her son's life. Only that fact makes it possible not to pronounce the death sentence in so extreme a case.
"In view of the exceptionally base character of the defendant who is still the same active Communist she always was and whose hatred of the German people is unbounded, a severe punishment is called for.
"The Chief Reich Prosecutor's plea for nullity, which is directed only against the degree of the awarded punishment, points out that the reasons given for the award of punishment create the impression that the Special Court had failed to see that the death penalty may be dispensed with only in less grave cases according to Paragraph 5, Article 2 of the Special Military Penal Code. At any rate, the statements made by the Special Court are not compatible with the assumption that this was a less grave case. The sentence is therefore unjust.
"The plea for nullity is justified.
"Paragraph 5 of the Special Military Penal Code makes it possible to dispense with the death penalty only in less grave cases according to Paragraph 5, Article 2, of the Special Military Penal Code. This the Special Court did not fail to realize, as it gives special reasons why it did not pronounce the death penalty, but sentenced the defendant to penitentiary only. But this reasoning cannot be found correct from a legal standpoint. In view of the special danger connected with an undermining of the fighting morale, a careful examination must take place and clear and convincing reasons must be given before a case can be classified as less grave.
The sentence of the court of the first instance is lacking such reasons.
"The fact that as a mother the defendant feared for her son's life is not sufficient to classify the case as less grave."
We skip the next paragraph and continue reading the following one:
"This legal mistake and the other considerable objections to the sentence as far as the award of punishment is concerned make the sentence under review an unjust one. They justify the definite possibility that the defendant has deserved a more severe punishment, and that the Special Court, had it weighed the facts correctly, would have arrived at a different result.
"The Special Court, therefore, will again have to examine carefully whether, in view of the defendant's action and character, it is justified to classify the case as less grave, and whether the death penalty has to take place."
That opinion is signed by the judges whose names we read earlier.
I would like to have the Court turn now to page 51, or perhaps first to page 49-A, where we will merely note in passing that the presiding judge of the second trial was the defendant Oeschey, and the assistant judges were Dr. Gros and Dr. Hoffmann.
We turn now to page 51, and note again the names of the presiding judge and associate justices, Dr. Oeschey presiding, and Dr. Gros and Hoffmann as associate judges. We note, in the opening paragraph of the sentence proper, that "Mueller, Therese, nee Burger, born 27 November 1885, in Konnersreuth, widow, living on a pension in Nuremberg, at present in penal detention, is sentenced to death and to the forfeiture of civil rights for tie time of her life."
We turn now to page 52, and begin reading in the second paragraph on that page, a short paragraph:
"The Special Court has again examined the circumstances to be taken into consideration for the award of punishment, and arrives at the following conclusions:
"As a conscious Communist the defendant showed in her letters that she was eager to address her son as a Communist, and to induce him, therefore, to break his oath of allegiance. The defendant states that as a mother she feared for her son's life. But the wording of her letters cannot be misunderstood, and it is clear that from this a human standpoint, understandable motive, prompted the action of the defendant to a minor degree only. We find in the letters not so much the fear of a mother, as we find the disappointment of a Communist who cannot get over the fact that her son is fighting for the National Socialist Germany. If her son had risked his life for Communism, she would undoubtedly not have induced him to desert. Remarks like 'The end is not in sight and this disgusting gang will disappear' and 'Up and at the gang', can only be explained in that manner. How thoroughly the defendant had cut herself off from her people is shown in her last letter in which she expressly regrets that British terror air raids were still so little effective, and in which she expresses the hope that 'Things must go to pieces some day.' As a fanatical and irreconcilable enemy of the German people it was her desire to withdraw her son from the fight for the National Socialism. The many remarks on the fate of numerous friends of the old Communist circle equally served the purpose of bringing the son back to the old ideas of a class struggle and of teaching him to put these ideas above his oath as a soldier.
"Although motherly anxiety may have played a part in her putting these things on paper, political hatred is still the preponderant motive. It is therefore not possible to classify the case as less grave in the meaning of Paragraph 5, Article 2 of the Special Military Penal Code. According to Paragraph 5, Article 1 of the Special Military Penal Code, the defendant has, therefore, to be sentenced to death.
"Because of the lack of character manifested through her act the forfeiture of the civil rights for the time of her life had to be pronounced in accordance with Paragraph 32 of the Penal Code."
That is signed by Oeschey, Hoffmann, and Gros.
If the Court will turn again to the very first page of this document, page 32-A, it will be noted that the death sentence was executed in accordance with the second opinion.
The prosecution offers as Exhibit 247 the document NG-481.
THE PRESIDENTS The document will be received in evidence.
MR. WOOLEYHAN: May it please the Court, pursuant to Article 9 of Ordinance No. 7, the Prosecution offers at this time several official Government documents and reports of the United States for judicial notice by this Tribunal. Pursuant to Rule 20 of the rules promulgated by this Tribunal, after reading portions of these reports we will deposit an official copy thereof in writing with the Tribunal. Since there does not exist any German version of these rather voluminous reports and since the rules do not require us to furnish any, we are only reading those portions of the reports in which we are interested, so that over the interpreting system simultaneously the German version will come forth.
THE PRESIDENT: Let's have a better description of the documents than you have already given. They come from the Department of State, I take it.
MR. WOOLEYHAN: I will describe them very briefly, one by one.
The first one is a report by the Office of Strategic Services. It is a draft for the bar Crimes Staff of the United States War Department, published in Washington, 13 August 19-5. The Office of Strategic Services was and is an integral part of the bar Department, which we submit comes within the definition set out in Article 9 of Ordinance No. 7.
The second one is a United States Army Service Forces manual but it was prepared by the same agency that I have just described, namely, the Office of Strategic Services. Both of these documents are classified but the classification permits this Tribunal to look at them.
The third is a Department of State publication entitled "The Digest of International Law" written by Hackworth and published in 1943. That digest is in some fifteen volumes but we offer only an excerpt of two pages from Volume 5. That is, as I stated, an official State Department publication.
The last report was prepared by the Special Legal Unit for Germany and Austria in the Supreme Headquarters of the Allied Expeditionary Forces, G-5. G-5, during the war, was the General Staff designation for all occupational and alien civil affairs duties. This was written and published on 23 February 1945.
Is that a sufficient description.
THE PRESIDENT: It is sufficient for our purposes. Have defense counsel been properly notified?
MR. WOOLEYHAN: I carefully conned the rules, Your Honor, and could find no requirement for notice on this point.
DR. SCHILF (Counsel for defendants Klemm and Mettgenberg). As far as I was able to understand, we are concerned with official publications which, according to the ruling quoted, are to be submitted as evidence by the prosecution, which can be submitted according to the provision.
MR. WOOLEYHAN: If the Court please, these documents are offered as a matter of judicial notice.
THE PRESIDENT: One moment, please. Under the rule and doctrine of judicial notice, it would perhaps not be necessary to introduce them in evidence. We may take judicial notice of certain things. Article 9 really declares the rule and seems to make no requirement of copies or of previous notice of submission. It seems to make no requirement that they be offered at all. Now, we will hear you on that, of course. Maybe, in order that this entire matter may be considered by all the members of defense counsel. I perhaps should have read Article 9, which is brief. Article 9 of Ordinance No. 7. It reads:
"The Tribunal shall not require proof of facts of common knowledge, but shall take judicial notice thereof. They shall also take judicial notice of official governmental documents and reports of any of the United Nations, including the acts and documents of the committees set up in the various allied countries for the investigation of war crimes, and the records and findings of military and other tribunals of any of the United Nations."
That is merely stating a rule that applies to all courts in American and English jurisprudence, at least. Now, that is binding upon this Tribunal because that is our charter. But in addition to that, the uniform rules of these tribunals elaborate upon that a little bit.
So that we will all be thinking of the same thing, I will read briefly from this: "When either the prosecution ---" It is Rule 20 of the rules.
"When either the prosecution or a defendant desires the Tribunal to take judicial notice of any official government document or report to the United Nations, including any act, ruling, or regulation of any committee, board, or council heretofore established by or in the Allied nations for the investigation of war crimes or any record made by or finding of a military or other tribunal of any of the United Nations, this tribunal may refuse to take judicial notice of such document, rule, or regulation unless the party proposing to ask this tribunal to judicially notice such a document, rule, or regulation places a copy thereof in writing before the tribunal."
Now then, the question arises as to whether this is one of the exceptions of Rule 9.
DR. SCHILF: That settles the matter completely but I only have one request, that we defense counsel may have a German copy made available, in case this has not already been promised by the prosecution.
I doubt whether the translation of documents which are only being submitted for judicial notice are available to us, and I was not able to understand clearly beforehand whether these translations are to be made available to us or not. Therefore I would like the prosecutor to make a further statement on the matter.
MR. WOOLEYHAN: Your Honors, the translation of these bulky reports is not only not incumbent upon the prosecution, according to the rules, but further, we feel, unnecessary for the reason that the only portions of these reports with which the prosecution is at all interested will, we propose, be read slowly and distinctly through the microphone and will, in due course, appear in the German transcript.
THE PRESIDENT: I am wondering whether what you propose to read is very bulky or very large in quantity.
MR. WOOLEYHAN: It will approximate 50 pages, Your Honor, altogether.
THE PRESIDENT: Is there a German translation of everything that is read through the microphone?
THE. WOOLEYHAN: Theoretically, Your Honor, there is.
THE PRESIDENT: I mean, in the transcript.
ME. WOOLEYHAN: Oh, yes. In the transcript. Absolutely.
THE PRESIDENT: Well, Dr. Schilf, I am wondering if that doesn't meet your requirements.
DR. SCHILF: Your Honor, I believe that it will not be sufficient. Presumably this will be very complicated and in part it will be a scientific and technical publication. I can imagine that the interpreters, if they do not have a German copy before them, will not be able immediately to give a perfect German interpretation. In my view, that exceeds the powers of the interpreters in the box. I would not like to decide that but I would like to suggest that the lieutenant himself would give his views to us.
THE PRESIDENT: What was that last? I didn't get that last part.
THE INTERPRETER: I would suggest that the lieutenant himself give us his views on the matter.
MR. LA FOLLETTE: In Your Honor please, I think we are confronted with this - we, in a way, are attempting to do more, I believe, than the rule technically requires. Apparently the rule isn't any too clear but we could lay these things on the Court's desk, one copy, as I read the rules, for 24 hours and then ask the Court to take judicial notice of them. I think two questions arise, one as to whether what we are relying on comes within the range of judicial notice as covered by the rule. As to that, of course, the defense counsel always have a right to object. But without the language difficulty, anything which would be judicial notice would necessarily not be evidence, and the 24-hour rule apparently is for the benefit, primarily, of the Tribunal in order that it may study that which we rely upon.
I am advised by Mr. Wooleyhan, who has attempted to check this matter, that the procedure which we are suggesting was that which had been adopted, I think, in both Tribunal No. 1 and in Tribunal No. 2. If it were otherwise true, then this rule doesn't mean anything because there is nothing stated in the rule that I can find requiring us to furnish a German translation.
