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.
We have not attempted to be unduly burdensome but we assumed that on this matter of judicial notice that the rule being silent, was silent for a purpose.
We propose to read into the record as slowly as possible for the purpose of affording that which we can possibly afford in the way of a German translation. Now if we are wrong it's because I think the rule isn't adequate. I believe we are complying with the word and the spirit of the rule, with these reservations of course: that 24 hours after this is read, if that 24-hour ruling were to mean anything more than this, defense counsel may say, or the court may say, that the subject matter which we claim is under the judicial notice rule does not come within the category prescribed. If that happens, then no harm can be done by the Court in making an order that it shall be stricken from the record. I know nothing else to say. I certainly don't want to deny this, but if it was meant to have a translation of this, I believe that the rule would be more explicit.
THE PRESIDENT: There seems to be no question that these document's come withing the rule. The only question is if there is any obligation owing to defense counsel concerning the documents, and that of course is governed by Rule 20. We better hear from It. Uiberall as to how competent he feels to correctly translate this into the German language if it's read slowly.
LIEUTENANT UIBERALL: I believe, Your Honor, that if we get the English copy, we will be able to translate it into German. However, since these are official documents, I am sure there must be official translations. If, therefore, we deviate in individual terms from the official translation, we beg to be excused.
MR. LA FOLLETTE: We do have English copies of these excerpts which we intend to real, but we know nothing about official translations. That we never heard of.
THE PRESIDENT: The translator feels that if he has an English copy before him, he will be able to give you an accurate technical translation. That is my understanding of his statement. We dislike to establish a precedent here that may haunt other Tribunal, so we want to stick pretty close to the rule.
DR. SCHILF: May I make one further remark on that subject? As far as I have understood the prosecution, they wish to interpret the rulings which have been quoted to the effect that in the case of all documents which are only submitted for judicial notice to the court, they are not under an obligation to furnish any translation at all. I believe that is not the way in which the rulings can be interpreted for naturally the defense is curtailed, if in the case of all documents which are only submitted for judicial notice, they are dependent on the original text. That might lead to a state of affairs wherein original text in the Russian or Spanish language would be submitted and which too would have to be translated for the aid of the Court, if the Court itself did not master the two languages concerned. For that reason, I should like to say now that in my conviction, it is not in accordance with the proper interpretation of that ruling that a translation of these documents to be made available to the defense. Possibly, the discussion of this question might become acute and therefore I should like to ask now that the translation be handed to us before, so that the doubts of the translating department as to the need of an official translation of official documents can be abolished.
THE PRESIDENT: Well, it's hardly correct to say, Dr. Schilf, that yon will not be furnished with the translation. That will go into the transcript of which you will have a copy. Is that correct?
MR. WOOLEYHAN: That is correct.
THE PRESIDENT: You will hear the translation as it is being read over the microphone. You will have a copy later and you may have an English copy. Is that correct?
MR. LaFQLLETTE: The English copy essentially will also be the transcript because it will be read in English.
THE PRESIDENT: I was thinking of an extra copy for their use. Could that be available?
MR. LaFOLLETTE: In almost every instance they are available; certainly in this case they will be. We intend to use some state reports of allied powers. They are large, but we only intend to ask the Court to receive not more than five or six pages out of those reports, so that we will undertake to furnish the extra English copies in addition to what comes out in the transcript.
I think that is all we can do.
JUDGE BRAND: That procedure will then enable the defense counsel, who would then be in possession of an English copy and also of the German translation which will be reproduced in the transcript, to then have full opportunity to check the accuracy of the German transcript.
MR. LaFOLLETTE: That is correct, sir; and of course since this is judicial notice and if it is qualified as not subject to any objection other than language objections, that should satisfy all requirements of fairness, and also indicates why the rule does not require, I think, a preliminary translation.
THE PRESIDENT: Entirely aside from the rules, it's of course the wish of the Tribunal, as I am sure it is the wish of the prosecution, that every fair consideration be given to these defendants, but it does seem as though what has just been stated by Judge Brand will be perfectly fair.
DR. SCHILF: Your Honor, but we would like to make one request. May we have an English copy before us while the translation comes over the system? If, therefore several copies -- three copies I think will be enough -- could be made available to us at the moment when the German translation comes over the microphone -- I am now talking of three copies in the German language -- not later; but I should like to ask that we should be given these copies at the time when the translation is being made over the system.
JUDGE BRAND: You said in the German language?
DR. SCHILF: A copy in the English language. We would like a copy of the English text at the time the German translation is being read over the system. Three copies will be enough for us.
MR. WOOLEYHAN: By the time we get these three English copies available to defense counsel and distributed, they well have the German and English transcripts. The time element is immaterial on that point.
THE PRESIDENT: I understand that you do not have the copies available at the moment?
MR. WOOLEYHAN: That is the point, Your Honor. If we undertake to supply them, they will have to be translated.
THE PRESIDENT: When we adjourn, which we will in a few moments-I am sure that any consideration which can be extended will be so extended.
THE MARSHAL: The Tribunal is in recess until 0930 hours tomorrow morning.
(The Tribunal adjourned until 17 April 1947 at 0930 hours.)
Official Transcript of the American Military Tribunal in the Matter of the United States of American, against Josef Altstoetter, et al, defendants, sitting at Nurnberg, Germany, on 17 April 1947, 0945. Justice Marshall, presiding.
THE MARSHAL: Persons in the courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal 3.
Military Tribunal 3 is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: The Marshall will ascertain whether the defendants are all present.
THE MARSHAL: May it please your Honors, all the defendants are present with the exception of defendants Rothaug and Engert, who are absent due to illness.
THE PRESIDENT: Those two defendants have been excused from regular attendance. The proper notation will be made.
DR. SCHILF: Dr. Schilf for the defendants Klemm and Mettengenberg:
May it please the Court, the gentlemen of the prosecution and the defendants whom I represent, yesterday after the end of the session again discussed the matter of the translation of the documents which are to be read today; documents which are to be submitted to the Court only for judicial notice. Since it has been established that only those passages will be read for judicial notice which will be entered in the transcript I have no further objections if that procedure is adopted such as the prosecution suggested. That is to say, that is without making the translation available to us, the document will be read in the English text and we will have the opportunity to examine the German translation from the transcript. That means that all difficulties have been removed which apparently arrived yesterday.
THE PRESIDENT: I am very glad to have the matter so easily adjusted and I may say to you, Dr. Schilf, if you need time to digest this you will have time, even after the reading and after the transcript, to bring the matter up again.
MR WOOLEYHAN: May it please the Court, the first official Government document from which the prosecution reads this morning is a report by the Office of Strategic Services, Research Analysis Branch, Washington, 13 August 1945 entitled "Nazi Plans for Dominating Germany and Europe -- Domestic Crimes". This is a draft for the War Crimes Staff. We Will read and submit for the Tribunal's judicial notice pages 49 through 55, inclusive. The following compilation compares the crimes punishable "by death under the pre-Nazi regime to those for which the death penalty was imposed under the Nazi law. In contrast to the three crimes punishable by death before 1933 there appear no less than 46 under Nazi laws.
"A. Crimes punishable by the death penalty under pre-Nazi laws:
1. Murder;
2. Homicide through the use of explosives;
3. Slave raiding involving the loss of human life.
B. Crimes punishable by the death penalty under Nazi law;
1. High treason;
2. High treason by means of coercion:
3. Conspiracy to commit high treason;
4. Certain acts preparatory to committing high treason;
5. Undertaking to kill the Reich President;
6. Armed riots;
7. Deprivation of liberty for the purpose of taking hostages in political strife;
8. Causing the death of a person by violating certain executive security regulations;
9. Terrorizing the populace by committing offenses while wearing a Nazi uniform;
10. Posing as a member of the police or of the armed forces while committing a crime;
11. Causing danger to life or property by the use of explosives;
12. Arson or explosion of a public building in order to intimidate the populace;13.
Cause a public danger by use of poison or by inundation, floods;
14. Spreading news from foreign broadcasts;
15. Undertaking to betray State secrets;
16. Undertaking to obtain State secrets with the intent to betray;
17. Disloyal conduct of diplomatic affairs;
18. Serving with enemy forces during the war;
19. Aiding and abetting the enemy;
20. Causing a grave danger to German reputation by untrue statements;
21. Sabotage;
22. Illegal guerilla, warfare;
23. Undermining military strength by incitement to disobedience or desertion or by self-mutilation and certain other means.
24. Any offense intentionally or negligently involving a serious danger or disadvantage to the war effort or to the security of the Reich whenever the sound instincts of the people indicate that the regular penalty would not be sufficient revenge for the act committed;
25. Persistent acts of injuring the vitality of the German people through abortion;
26. Serious cases of failure to report certain impending capital crimes;
27. Sabotage of military equipment, defense installations or pertinent raw materials;
28. Sabotage of vital supply plants;
29. The offense committed by a German national of transferring to or holding in another country any private property to the detriment of the German economy;
30. Setting read blocks with intent to rob;
31. Kidnapping of children with the intent of extortion;
32. Intentionally endangering rail or air transportation;
33. Destruction, concealment or retention of necessary raw material or products or concealment of falsification of pertinent coupons and certificates;34.
Misappropriation of objects gathered through the public metal collection;
35. Misappropriation of objects gathered in the collection-of winter garments;
36. Making untrue statements about the demand or amount of labor or raw materials, products, machines and tools in the armament industry;
"37. Looting in evacuated districts.
"38. Any offense against life, limb or property committed while taking advantage of air raid precautions.
"39. Edangering national resistance by committing arson or other crimes which create dangers to the public.
"40. Any criminal offense committed with intention of taking advantage of the exceptional war conditions, provided the sound instincts of the people require the death penalty in view of the viciousness of the offense.
"41. Any use of arms or similar dangerous instruments while committing rape, robbery, or any other act of serious violence, or threatening a person's life or limb with such weapons.
"42. A third offense committed by a person regarded as a dangerous, habitual criminal, provided the death of the offender is necessary for the protection of the national community or for the sake of just retribution.
"43. Any further sex offense committed by a person previously sentenced for indecent assault by duress, or against children, or for rape.
"44. Violation, either intentionally or by negligence, of orders issued by certain executive agencies concerning the organization of total war.
"45. Violation of the law against Violent juvenile criminals."
May I interpolate for a small correction of the record? The beginning paragraph of this report which I read gave the figure "46". That should really read "45".
The Prosecution offers as Exhibit No. 249, for judicial notice, the report from which the excerpt was just read. One moment. That is Exhibit No. 248, and this is it.
THE PRESIDENT: The document will be received.
MR. WOLLEYHAN: Thank you, Your Honor.
The next official Government report is entitled, "Army Service Forces Manual, M 356-3." Title: "Civil Affairs Handbook, Germany.
"Section 3. Legal affairs.
Dated: 29 February 1944.
"This study on legal affairs in Germany was prepared by the Research and analysis Branch of the Office of Strategic Service."
The Prosecution wishes to refer only to pages 65 and 6 of this report, beginning on page 65:
"An article was published by Georg Thierack, Minister of Justice, on 23 August 1944, in which are given the figures for the growth of the number of death sentences during the 1940-1943 period. These figures seem to include death sentences handed sown by all courts coming under the jurisdiction of the Ministry of Justice, including the People's Court but not the Military and SS Courts."
There follows a tabulation headed "Year and Number of Death Sentences":
"1940 - 926 death sentences.
"1941 - 1,292 death sentences.
"1942 - 3,660 death sentences.
"1943 - 5,336 death sentences.
"A break-down of the death sentences handed down in 1943 is drawn in the following table."
There follows a tabulation headed "Crimes and Number Sentenced," the number sentenced referring to the death sentence.
"High treason, 1,747."