Official transcript of the American MilitaryTribunal in the matter of the United States of America against Jopef Alstoetter, et al, defendants, sitting at Nuernberg, Germany, on 7 March 1947, 0946-1630, 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 marshal will ascertain whether the defendants are all present.
THE MARSHAL: May it please Your Honors, all the defendants are present in court with the exception of defendants Rethaug and Engert, who are absent due to illness.
THE PRESIDENT: You may proceed.
MR. LAFOLLETTE: May it please Your Honors, the last exhibit which was out in yesterday, Prosecution Exhibit No. 26, NG NO. 416, which was page 108 of the document book, was the exhibit with reference to which counsel for the defendant Rothenberger asked information and made certain observations and objections, as I recall, the basic one being that the exhibit appeared to end abruptly and that there was no indication on the exhibit as to what paper or publication it had appeared in or before what group it had appeared. I now have two photostatic copies of the original exhibit and I have this information with reference to the validity and competency of this exhibit and where it appeared.
It appeared in a folder entitled "Reichsjustizministerium of the Staatsekretaer Dr. Rothenberger". It is now at the Ministerial Collection Center, Camp Mahogony at Finsterberg. That was where it was first taken. It is now in the Reichs Central Office in Berlin.
The information, or rather, the exhibit, indicates that it was an office copy of a speech which the defendant Rothenberger had prepared and given at Lueneburg, but the text ends where it does because that was all of the conies of this speech which were obtained through the regular processes by which these exhibits have been obtained, so that consequently there is no further text to the speech, to the knowledge of the prosecution, in existence.
That accounts for our inability to furnish any other part of the text that the defendant Rothenberger, through his counsel, indicated he thought was not part of the exhibit. That also takes care of the matter of our furnishing the group or the newspaper in which it was published. We have furnished exactly what the original exhibit, in German, indicates - photostatic copies that I am very glad at this time to furnish to counsel. And may I explain to counsel that there are two photostatic copies because the photostating was not good. Between the two of them you will get a full good photostat.
Now while I an here on that subject I would like to ask the court to modify its ruling of yesterday with reference to permitting the defense to read parts of exhibits after the prosecution has finished. I did not state my position adequately enough, I think, to the Court yesterday. I would like to state it more adequately this morning and, of course, subject to the control of the Court we have no objection to any defense counsel stating any objection to it.
When the exhibit is introduced that is the record of the case. The reading of portions of the exhibit which the prosecution indulges in is largely for the purpose of advising the Court, as the instrument goes in, of what the character of the instrument is and part of its substance. The situation I don't believe is analagous to that which prevails in stateside practice where a party attempts to read into evidence only part of an exhibit and withheld the rest. Under those circumstances I am acquainted with the rule, and it is a very proper one, that he may be required either by the Court or the opposing counsel may be permitted to introduce part of the document which he is attempting to withhold. However, that is not true under these circumstances.
We offer and introduce into evidence the full document. The reading is purely for the purpose of the Court. For that reason, when in reading the record as an indication to the Court, we feel as to whether the Court wants to go to the document book and give further attention to all of the document, if immediately thereafter there appear certain parts of the document read by the defendant, the prosecution, I feel, is somewhat handicapped and an orderly presentation of the record is net there, because the defendants have full opportunity when offering their case in chief under the same method of calling to the attention parts of that exhibit which is already in the record, or reading part of it.
So that I respectfully point out the reasons why I are asking the Court to modify its ruling of yesterday.
THE PRESIDENT: The Tribunal will not modify the order, and I will state the reasons why. Of course the entire exhibit is in evidence, what opposing counsel wants as well as what the prosecution desires, But the whole purpose of evidence is to advise the Tribunal as we go along, and that entire exhibit doing before us, if that is not called to our attention by opposing Counsel, we would be required to search for it.
We think it is the province of opposing counsel to aid the Curt in that way, to call to our attention anything that opposing counsel feels is important to the defense. Now, all of that is within reasonable limits. If it were sought to read a long document where only a small portion is real by the Prosecution, we would not permit it. But within reasonable limits, and these limits have not been exceeded in this instance, we will not modify the ruling unless something occurs to call for a modification.
MR. LA FOLLETTE: May it please Your Honor, I accept, of course, the ruling of the Court, but I would like to call the attention of the Court under the ruling that it made, the necessity of be ring in mind when it finds in the case in chief excerpts from documents read and consequently emphasized by defendants' counsel, that if there should do self-serving elements in there that they would much better have appeared in the defendant's case in chief. I understand the reason fer the Court's ruling. I just don't want to be bound, as the Court roads to so-called "plaintaiff's case" by these excerpts that might not do accurately transcribed, perhaps, in the record, so that they might appear to be running along to do these things which the plaintiff had emphasized. Of course, all tie document is in.
JUSTICE BRAND: We are not under misapprehension about that portion Of your statement. We understand the whole document is in, and we are not invoking the rule that when a part of a document is introduced in evidence the opponent may introduce the other part. We are simply invoking the rule that when you introduce an entire document,within the discretionary Units of the Court, we are entitled to -or the defense are entitled, rather, to call to our attention portions of your exhibit.
MR. LA FOLLETTE: I understand that. I just want to be sure that as the transcript develops, and I hope the stenographers will clearly note these parts which are read by the prosecution and those parts which are read by the defense.
THE PRESIDENT: I agree with what Judge Brand has said. I also want to approve of your argument that they could not be permitted to have self-serving declarations. If they should appear at any time, we will promptly rule then out.
MR. LA FOLLETTE: Thank you. At this time, Your Honor, Mr. Woeleyhan will proceed with the case.
DR. SCHILF: Counsel for Defendants Klemm and Mettgenberg. Mr. President, may I call the attention of the Tribunal to one point? Yesterday the Tribunal decided in case a document should be presented only by excerpts and read in excerpts by the gentlemen of the Prosecution, then the Defense, if it would like to have other parts read, could immediately to so. They could point out the necessary pages to the Tribunal.
During the last few days, and I do not wish to emphasize that the documents have been presented too late, we have received a very large number of documents, five and six volumes, with thousands of pages. It was not important to us before they were presented in court to go through all these volumes in order to be able to examine what parts the Defense would like to have read. Practically, this is a great difficulty. If the Prosecution announces the submission of an exhibit, for instance, Exhibit Number 25, which may consist of 20 pages, and of these 20 pages, only three or four passages are read; then Defense counsel at once has to look through the remaining pages in order to ascertain what he would like to have read later.
For that reason, I should like to make the suggestion that the Defense on its part be permitted to include those passages which Defense wants to have read in the Document Book of the Defense during their case. If this is not done, the practical difficulties will be too great. There will also be a delay due to the fact that after each document is presented by the Prosecution, the Defense counsel will immediately have to get to the microphone and announce which passages he requests be read.
THE PRESIDENT: It seems counsel who is addressing the Tribunal is in perfect harmony with the Prosecution. There will be no difficulty about reading any of these documents when the Defense Counsel come to their case. That is what I understand you are now asking to be permitted to do.
DR. SCHILF: Yes, Mr. President. I am asking that we should be permitted to include those passages which the Prosecution is not reading in our case, if those passages are deemed material. I ask that we be permitted to include relevant passages in a document book.
THE PRESIDENT: The exhibits are admitted in their entirety. They are already in evidence. Even so, when it comes to the Defense, Defense Counsel can emphasize them by reading them if they so desire. Is that not satisfactory?
DR. SCHILF: If that is the case, then it could appear also in the record?
THE PRESIDENT: Of course, what I said is subject to the qualification that it must be competent evidence and not merely self-serving declarations on the part of the Defendant.
DR. KUDOSCHOK: Counsel for the Defendants Schlegelberger and von Ammon. The position of the Prosecution makes a necessary decision on the following point: If a very large exhibit is submitted by the Prosecution and if from this exhibit only certain passages have been read, what is considered proof? Only the portion of the exhibit which has been read or the entire document?
The International Military Tribunal had, in consideration of the great length of the individual documents, decided the question to mean that only that should be considered in evidence as was read into the record. I believe that, practically, it could net be handled any differently and I ask you to consider the following example:
A very long speech is presented as proof. The speech concerns 10 different questions. The Prosecution is interested only in one. Nine ether questions are net interesting to the Prosecution. If, however, the entire speech could be used as proof, then the Defense would have to quote all nine points and very carefully rebuff them. The length of the proceedings would be increased. Therefore, I ask that a decision be made, just as was the case in the International Military Tribunal, that in case of such documents, only that part which was read into the record should be considered evidence by the Tribunal.
MR. LA FOLLETTE: May it please Your Honor, I am not prepared to say definitely, but I have just been advised that after the ruling of the International Military Tribunal to which Dr. Kubeschok refers, there was a change.
I make no point because I am sure he is speaking in good faith. And I am sure I am the information given me was in good faith.
Again I would like to point out that we are funning into the difficulties that I anticipated when I asked the court to change its ruling. I think it will be endless and needlessly boring to the Court, as the Court indicated itself yesterday, to read the biographical affidavits of those Defendants.
If a ruling such as Defense Counsel now asked for should be made, of course, we can comply with it, but it will tax the physical powers of the Court and counsel and will certainly, in my opinion, very unduly prolong these proceedings. An exhibit, when in the record, is there. I would even say that it could be possible and we would have had adequate results, if the Prosecution simply introduced its exhibits one after another as it does in a stateside proceeding, and leave it to the Court to determine.
The only purpose of the interjection cf excerpts, and possibly some observations with reference to them which would normally be rather poor stateside practice, is that the document speaks for itself. We would not exceed that limitation. We will not attempt to interpret the document, but certain parts, I think, will give the Court a sense cf some coordination cf the proceedings.
However, if nothing is to be considered by the Court, except what is read, or if we to have too much interjection of the reading of documents, then the Prosecution will, as much as it hates to extend the time of the Court, simply stand here and read word for word every document if it takes until next January and the Congressional appropriations hang on that long.
DR. WANDSCHNEIDER: Counsel for Defendant Rothenberger. Mr. President, may I for the Defendant Rothenberger, make a few short remarks also for practical reasons and reasons of procedure?
In order to say it straightaway, I am of the opinion that the decision of the Tribunal yesterday is definitely reasonable and economical.
If an exhibit has been submitted by the Prosecution, the question arises at the time it is read, "What kind of an exhibit is that?"
That it is desirable to us to accept an entire document as an exhibit, there is no doubt. All of us in connection with this trial would get into great difficulties if we should try to determine what parts of these documents should be evidence and what parts should not be evidence. For this reason, I am of the opinion that the entire document has to be considered as an exhibit and accepted as such.
What is tho consequence of that opinion? If the prosecutor reads from the document, then the defense, of course, has the same fundamental interest in it that also those parts of the document should be brought to the attention of the Tribunal in which the defense is interested. Only thereby, will it be justified to consider the entire document as exhibit and as proof, and therefore it is likewise necessary, and in spite of the fact that ii delays tho procedure, it must be taken into account that the defense should have the opportunity immediately after the presentation by the prosecution to read those passages which are of interest for the defense. May I point out that if the entire exhibit is submitted, those question, for instance, as to whether that document is only a draft or an authentic publication within publication of the Ministry or an office or anything of that kind, that these questions are still left open for the defense: because the fact that it has been accepted as exhibit can not possibly mean that the defense should not have the possibility, by later investigations, to ascertain what the character-the nature--of such a publication or such an exhibit is; whether, for instance, it was only a draft of little consequence or an authentic text actually presented. I, as counsel for the defendant Rothenberger, consider this important, also for the very actual reason of his speech at Lueneburg, and for this reason I should like to ask in conclusion that the Tribunal leave the decision as it was made yesterday in order to have the probative value of the entire document available for the prosecution as well as for the defense, and to give the opportunity to both to read immediately all those passages which are of interest for them. If it is a very extensive document in practice, I should suggest the solution that in such an extraordinary case, where the defendant cannot immediately make a decision as to what should be read, that the defendant should have the right, in order to save time for the procedure and read only the most essential passages, to read those passages the next day.
DR. BRIEGER: Dr. Briager for the defendant Cuhorst. Referring to what my colleague in conclusion has said at the end of his statement, I should like to make the request that the defense in every case, that is to say, not only in the case of extensive documents, that the defense should be given the opportunity to refer to any document the following day. I should like to give the following reasons in consideration of the speed with which documents are presented here. In the rarest of cases, it is possible for tho defense to examine whether important passages can still be found in tho documents which have not been represented by the prosecution.
MR. LA FOLLETTE: May it please Your Honors, may I be heard just once again? I do not want the defense counsel to feel that they are working under any great handicaps that the prosecution with reference to the speed of presenting document. Twelve and one o'clock every night is a rather burdensome task on the prosecution because we do not know what documents we can present until we got the original exhibits, and we are not getting these as fast as we would like. I again believe that if we run into a situation here in which each defense counsel, at the conclusion of the reading of a part of a document, as he certainly has a right to do, if the court continues to hold to its present ruling, were to come to this microphone or podium, we will be here a tremendously long time; and as the Honorable Judges of this court attempt to read the record, I believe the interspersing of the opinions of each counsel at this stage of the proceeding rather than where, if I may say so, our American judges are accustomed to finding defense evidence in the defense case in chief. I do not believe that the members of the Tribunal will be aided but will find that their task will become more arduous if we adopt this presently proposed procedure.
THE PRESIDENT: Mr. Prosecutor, this is a rather important matter and we don't want to dispose of it hastily. Is there something you can occupy the time with for the next 20 minutes, and we will take this up among ourselves in tho morning recess.
MR. LA FOLLETTE: Yes, indeed, we are ready to proceed.
THE PRESIDENT: In the meantime, for the short time that intervenes we will let the ruling stand.
MR. KUBUSCHOK: I should like to add shortly to the statements made by the prosecutor concerning the question of the probabative value of the submission of an extensive document. Such political trials as those cannot be compared with trials of any other kind. Documents which submitted here are of a specific nature and therefore they are also very extensive. A political speech deals frequently with the entire political material of the period. Each defense counsel would be negligent, as far as his duty is concerned, if he would not deal with any of the questions mentioned in these speeches, because he would have to expect that the Tribunal would come to certain conclusions from a question which might not have been mentioned by the prosecution, and that this would be detrimental to the case of his client. The same applies if at any later date the records become a part of proof. The defense then indeed would not only have to use the entire material of the speeches but also of the documents. The entire material would have to be used and that is practically impossible unless we want to sit here for years. Therefore, in my opinion, one cannot do anything else but that only that which is read is taken in evidence. The prosecution could not have too much trouble with that because I assume that the prosecution would a t any rate road anything which seems important to it.
THE PRESIDENT: You may proceed with other matters and we will take this up at the proper time.
MR. WOOLLEYHAN: The prosecution will proceed with what will be offered in evidence as Prosecution Exhibit No. 27. It's found on the first page of the English Document Book 1-B, Document NG-075.
THE PRESIDENT: Which document book are you using at this time?
MR. WOOLLEYHAN: English Document Book 1-B Your Honor, Page 1, Document NG-075.
Reichminister and Chief of the Reich Chancellery Fuehrer Headquarters, 11 May 1942 Subject Re: Memorandum regarding Judicial Reform.
1. ) When I reported to the Fuehrer on the 7th of this month, the Fuehrer informed me that he had received a memorandum regarding a judicial reform from a well-known lawyer, which appeared noteworthy to him. He will arrange to have this memorandum sent to me.
2. ) On the 8th of this month, Dr. Schlegelberger incidentally remarked, while visiting me, that he believed that the memorandum which the Fuehrer mentioned war drawn up by the Oberlandesgcrichtspraesilent Rothenberger.
I new skip to page 3, which is page 3 of the German document book.
The Fuehrer and Chanceller of the German Reich.
CS The Personal adjutant NSKK - Gruppenfuehrer A. Bermann.
TO: Reichminister Dr. Lammers My very dear Reich Minister.
In reply to your letter of 11 May, addressed to the Gruppenfuehrer Schaub, inclosed please find the memorandum which you requested concerning tho judicial reform drawn up by Senatspraesident Dr. Rethenberger, Hamburg.
Heil Hitler!
(signed) A. Bermann Personal adjutant of the Fuehrer THE PRESIDENT:
Is this a separate exhibit number?
MR. WOLLEYHAN: This all part cf the same document; those are all part of Exhibit No. 27. I now skip to page 1 of the English document book, the bottom third of the page, which is page 3, ten lines from the bottom in the German document book. The title: Reflections on a National Racialist Judicial Reform.
" A crisis is customarily defined as a state of the most violent intensification of the symptons of a sickness, which is followed by a decisive turn, either toward the worse, to final descent - death in the case of man, and dissolution in that of a public institution -- or the pendulum swings to the other side after the climax of the crisis, toward recovery. The present crisis in the administration of justice today is close to such a climax. A totally new conceiption of the administration of justice must be created, particularly a National Socialist judiciary, and for this the durggist's salve is not sufficient; only the knife of the surgeon, as will later be shown, can bring about the solution."
I now skip to the bottom part of that page,which is found on page A, six lines from tho bottom in the German document book.
"The German judge,,, "The German judge, the true representative of justice, stands alone and unprotected, presuming upon his so-called independence.
Above all, justice and the German judges have eitherto not succeeded in gaining the confidence of the Fuehrer. It is true, German justice has become organizationally speaking, a united Reich justice, and all efforts are being made to create a National Socialist justice. Jurisprudence strive - if only with varied success - to fit into the National Socialist ideology."
I now skip to page 7 of the English document book, paragraph (a) which is found on page 7, the first line of the German document book, and I call the Court's attention to the fact that some words, tho word "serve", for instance, is underlined in the English text, and it is also underlined in the script of the original document which will be offered in evidence.
THE PRESIDENT: The understanding that occurred on page 5, was that also in the German text?
MR. WOOLLEYHAN: Yes, your Honor; that was also in the original. He underscoring has been supplied by tho Prosecution.
THE PRESIDENT: That applies to everthing you read?
MR. WOOLLEYHAN: Everything today, at least Paragraph (a):
"The bourgeois-liberalistic state which, under the influence of the doctrine of the division of power, empowered courts to control legislation and administration, has finally been superseded by the unity of the Reich. The courts arc merely an organ of the state, as the arm is only a limb cf the human body. However, this arm can never set its own head aright. Law must serve tho political leadership."
I now skip to page 8 of the English document book, which is found on the last line of page 7 in the German document book. Paragraph (b):
"In the second place,,,, In the second place, this reaction of "antagenism toward law" is justified because the present moment absolutely demands a regid restriction of the power of law.
He who is striding gigantically toward a now world order cannot move in the limitation of an orderly administration of justice. To accomplish such a far-reaching revolution in domestic and foreign policy is only possible if, on the one hand, all outmoded institutions, concepts, and habits have been done away with - if need bo, in a brutal manner -- and if, on the other hand, institutions that are in themselves necessary but are not directly instrumental in the achievement of a great goal and which, in fact, impede it, are temporarily thrust to the background. All clamer about lawless ness, dospotism, injustice, etc.
, is at present nothing but a lack of insight into tho political situation."
I now skip to the bottom of page 11 in the English document book, which is found on line 12 from the bottom of page 11 of the German, document book, "One must lock into the ------Theoretically, the constitutional position of the German judge, especially his position in respect cf the Fuehrer, is not difficult to solve.
Overcoming the division of power the Fuehrer is not only the legislator and executioner of power, but also the supreme judge. Theoretically the authority to pass judgment is therefore only his. Could he carry out this authority also in practice, there would be no more judiciary problem and no legal crisis. But he cannot do so. Therefore, he has transferred his authority to the individual judge, that is, directly, without any further administrative channels. The judge acts differently from any other official who is a member of a sometimes rather long official hierarchy, by virtue of a decree issued to him direct by the Fuehrer. This is the meaning of freedom of the bench. Every other private, party official or public office has to abstain from all interference or influence upon a judgement. This superior position corresponds to the obligations of the judge to find justice exclusively according to national socialist ideas because a judge who is in direct relation of fealty to the Fuehrer must judge "like the Fuehrer". In order to guarantee this, a direct liaison officer without any intermediate agency must be established between the Fuehrer and the German judge, that is, also in the form of a judge, the supreme judge in Germany, the "Judge of the Fuehrer."
I now skip to page 13 of the English document book, which is one page 15, line 4 from the bottom of the German document beck, Section V."The historic development of the German judiciary is in short tho following:
At the same time at which the Roman law which in no way whatever was cennected with the German national consciousness was introduced in Germany (15th century), the freely elector German people's judge was replaced by the civil servant, the professional judge. He studied at first at Italian universities, and later -- up to the present timehis melted of thought was influenced by legal reasoning in accordance with Roman law. Originally he, though an alien stranger, was nevertheless, in his capacity as the highest official of the individual sovereigns, an authority in the country; but 19th century liberalism, with its hypertrophy of laws, its plethera of court, its will pursuit of litigation, and its juridical thinking, led to a steady increase in the number of judges, and indeed to a debasing, vulgarization, and "burcaucratizing." of the judges. In a Liberal State these judges became independent simultaneously in the sense of a complete detachment from people and state. The authority of the judge can be determined by two entirely different means: Once by granting him a superior position and by letting only few qualified non with a strong personality become judges -- then the authority and the so-called independence will as a matter of course come out to a certain extent as a by-product -- or else the judge's position will be formally converted under peer economic stress into a bureaucratic civil service position, in which he will attempt to carry through his conception of law, by being granted independence through legal guarantee. Prussia, and with her the rest of the German States, consquently the second German Reich, took the latter way.
National -socialism will have to proceed on the first path, Because the nature of national-socialism is in direct contrast to this degeneration of the oil German, nonbureaucratic people's judge which occurred historically through foreign influence, National-socialism will revive concept of German judge as a prototype the same as it created the concepts of Fuehrer, followers, folk-community, honour, loyalty, farmer, soil," I now skip to page 15, the bottom half of the page, which is found on page 16, line 10 of the German book.
I am reading how from the English document book even lines from the bottom of the page.
"With the Fuehrer a --
"With the Fuehrer a man has risen within the German people who awakens the oldest, long forgotten times. Here is a man who in his position represents the ideal of the judge in its perfect sense, and the German people elected him for their judge -- first of all, of course, as "judge" ever their fate in general, but also as "supreme magistrate and judge". The mail received in the Fuehrer's office in one day will prove this. No wonder , that next to this man, the German bureaucratic judge, who represents so little of longestablished judiciary grandeur, had to lose further authority."
I now skip to page 21, the last page of this document and note the late and signature, "Hamburg, 31 March 1912." The signature is a faulty translation, but from the foregoing sheets of this document it would appear that of the defendant Rothenberger.
The Prosecution now offers Exhibit No. 27 in evidence.
THE PRESIDENT: We will recess at this time and will take up the matters you have upon our reconvening.
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: The Tribunal is prepared to rule at this time upon the submitted matters. The first point presented is whether the entire document shall be considered in evidence and not merely that portion which you have read. Our answer to that is; regardless of what is read, the entire document will be in evidence. On the other point defense counsel argue that they cannot now know what other portions they may regard to be pertinent and relevant and that the time has been short for them to make that research. In view of that situation we think it desirable to modify the fuling of yesterday and not to permit reading of other portions unless -- let that part of the ruling stand. No other portion may be read by defense counsel at the time of the reading of the original document that is introduced in evidence. All such matters must be left to the time when the defense is making their case in chief. At that time they will be given the fullest opportunity to present relevant and competent portions of such documents.
DR. BRIEGER: Pardon me. I wish to call your attention to the fact that the interpreter in this instance couldn't follow at all.
THE PRESIDENT: Did any part of our ruling reach defense counsel?
COUNSEL FOR THE DEFENSE: No part of it.
THE PRESIDENT: Is the translation coming through at this time? I will therefore repeat the ruling. On the first point made our ruling is that the entire document as introduced by the prosecution will be considered in evidence, not merely that portion which the prosecution reads. On the other point, defense counsel argue that they cannot know in this short time what portions of the document they might want to read and that being true, we have decided to modify the ruling of yesterday and not permit any reading on the parts of defense counsel at this time or during the presentation of the prosecution's case. When the defense comes to their defense in chief they will then be permitted full opportunity to present relevant and competent portions of these documents. "We think that is in the interest of an orderly record and orderly procedure.