MR. KING : I will put the question again.
BY MR. KING :
Q. What was said to you at your Monday conference ?
A.- The cases were discussed, and on the basis of my former statements I was asked supplementary questions of a similar kind as they were put to me today.
Q - At that time you were shown files, case files ?
A.- No, I was not shown any files.
Q. And following the putting of questions to you, was your probable answer discussed ?
A.- No. That was not discussed.
Q.- I want you before you answer this next question, to think it over very carefully. Did any one defense counsel, or other persons present at that meeting, point out to you any advantage which would accrue to yourself for changing your statements which you made in your affidavit ? Will you think that over carefully before you answer it ?
A.- Nobody promised me any advantages.
Q.- I didn't ask you that. I asked if any one pointed out any advantages which would accrue to you personally from changing your position. I assume that no one is in a position to promise you advantages. I am merely asking you whether they made you aware of what might accrue to you if you changed your position.
A.- No, nothing was indicated, nothing was hinted at. It wasn't discussed at all.
Q.- How long did this meeting last ?
A.- All afternoon -- we went out at noon, at twelve o'clock, and at eight, or seven, the train went back. But it was a private gathering, and we did not only discuss those cases but we also discussed general subjects.
Q. - I don't want to ask for names at this time, but can you tell me now, how many other gentlemen who have given affidavits and who expect to be called as witnesses, were present at this meeting. I don't want names. I just want the number of these people present at this pow-wow.
DR. SCHUBERT : May it please the Court, I object to that question. It has nothing to do with ascertaining the credibility or otherwise of the witness. It is not important at all how many persons attended that meeting as regards whether today's statement by the witness was correct or incorrect. The question has nothing to do with cross examination.
THE PRESIDENT : Objection over-ruled.
MR. KING : Will you answer the question, please -Apart from yourself ? --- One moment, please, I don't want to embarrass any defense counsel, or any other witness. Merely tell me the number of affidavits of other affidavits, who were present at the meeting, who expect to appear here as witnesses. Please do not give their names.
A. Apart from myself, three such gentlemen attended.
MR. KING : That is all, your Honor.
THE PRESIDENT : The witness may be excused.
(The witness was excused)
HERMANN MUELLER, a witness, took the stand and testified as follows :
JUDGE BLAIR : Hold up your right hand and repeat after me the following oath :
I swear by God, the almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE. BLAIR : You may be seated.
EXAMINATION
DR. SCHUBERT : May it please the Court, we are concerned with Document Volume II-C, Document NG-653, Exhibit No. 149.
BY DR. SCHUBERT :
Q.- Witness, please tell the Court your name and your profession.
A.- Dr. Hermann Mueller, Jurist, born 4 May 1910, resident at Aschaffenburg.
Q.- Dr. Mueller, on 15 January of this year you deposited an affidavit, about which I would like to put a few questions to you. You criticized in your affidavit the manner in which the defendant Oeschey conducted the trial, Can you confirm to me whether, in the trials which were conducted by Oeschey, the relevant points - that is to say, the points which matter ed were discussed ?
A.- They were discussed.
Q. - You then refer to the close relations of the defendant Oeschey with the Party. Do you know whether, and what influence, Oeschey had with the Gauleitung ?
A. No, I only put that down in my affidavit as a personal assumption, as is evident from the word "wohl", "probably".
Q. You then discuss his influence on the shaping of jurisdiction. Can you tell me through what channel that influence was exerted? Were you thinking of the directive discussions?
A. I myself never attended a discussion on directives, but I was able to ascertain, or at least I believe that I did ascertain, that Oeschey's opinion in the majority of cases was the decisive opinion.
Q. At the guidance discussions?
A. At the guidance discussions which, in their results, had to be passed on to the presiding judge.
Q. Dr. Mueller, until what time did you work with the Special Court in Nurnberg at the prosecution there?
A. From April 1942 I was with the prosecution in a department, (Referat) in which the sentences which had been demanded had to be dealt with.
Q. And that was until the end of the war?
A. Yes, until the end of the war.
Q. Is it correct that in the ordinary case, during the period when you were prosecutor with the Special Court, there was a directive concerning the increased extent of the punishment which came from the Ministery of Justice to the prosecution in Special Court cases?
A. In every single case we received a directive; I assume that that directive ordinarily came from the Ministery of Justice itself.
Q. You received the directive from the General Prosecutor?
A. We submitted two indictments together with the extent of punishment that was intended. If we received nothing, that was considered the directive to proceed accordingly at the trial. Other wise, express instructions were received either from the General Prosecutor, or in some cases directly from the Reich Ministry of Justice by teleprint.
Q. Dr. Mueller, I am now coming to the Strobel case. You say that Strobel was a man who had had many previous convictions. Do you remember that strobel had 48 previous convictions?
A. I cannot remember the number, but I know that there was a long register of punishments.
Q. Can you remember that in the case of the previous convictions it was not only thefts but all kinds of crimes?
A. I cannot make exact statements about the various sentences.
Q. Dr. Mueller, you say that the Reich Ministry of Justice ordered prosecutions on the basis of Article 2 of the Malicious Acts Law of 20 December 1934, Was that order, an instruction from the Reich Ministry of Justice on the basis of the guidance of jurisdiction which we discussed earlier?
A. No, no, that was a prerequisite of the trial.
Q. Without that information from the Reich Ministry of Justice, in otherwords, the prosecution could not have brought a charge?
A. That is right.
Q. You then say, regarding the transcript of the second trial, that is to say, after the trial had been suspended. --- For the moment I will withdraw the question.
Dr. Mueller, you will remember that the trial was suspended.
A. Yes.
Q. The decision to suspend the trial was based on the necessity to ascertain whether the defendant was a dangerous habitual criminal?
A. That is correct.
Q. Was that decision announced?
A. Naturally,
Q. Do you remember, Dr. Mueller, that in the interim period, that is to say, between the first and the second trial, the prosecution sent a report to the prosecutor in Nurnberg, that is to say, to their superior authority?
A. Yes, I remember that.
Q. I am going to show you the files of this case.
(Document submitted to witness).
Please read that letter and tell me whether that is the report which was submitted to the General Prosecutor at that time, please read it aloud.
A. The whole letter?
Q. Yes, the letter.
MR. KING: I wonder if we might have the letter somewhat better identified than it has been already.
DA. SCHUBERT: I did not understand.
MR. KING I have no objection to the reading of the letter, but I wonder, for purposes of future reference, if we may not have it better identified, such as the date, from and to whom, and all the other relevant facts which will help us later to identify it in the files.
BY DR. SCHUBERT:
Q, Will you read it please?
A. It is a letter from the Senior prosecutor in Nurnberg to the general prosecutor in Nurnberg, dated 19 January 1944, regarding penal proceedings against Georg Strobel for a violation of the Nalicious Acts Law. The text says:
"The Special Court suspended the trial of 30 November 1943 in order to examine the question as to whether the defendant is a dangerous habitual criminal. Sentences which are in accordance with Paragraph 20-A have been passed.
"The defendant, in the years 1917 to 1941, has had 44 previous convictions, among them 17 times for theft and fraud, 11 times for offensive behavior, physical injuries and resistance, twice for sexual crimes, and once for a serious sexual crime.
"Apart from a large number of short sentences, he was sentenced in 1923 to a penitentiary term of one year for theft, a repeat offense, and 1941 to one year and six months in a penitentiary for two attempted sexual crimes with a child. The medical officer of the District Court describes the defendant as an asocial character with a bad criminal prognosis.
"I intend, unless other instructions are received, to ask for the death sentence at the new trial."
Q. Dr. Mueller, now that you have read this, can you confirm that this was the report.
A. Yes, it was.
Q. That was the report which was submitted to the General Prosecutor between the two trials?
A. Yes, that was the report.
Q. Can you see from the files that you have before you whether the General prosecutor gave a different instruction?
A No. I remember that no other instructions were received.
Q Dr. Mueller, at the second trial, too, you were the Prosecutor, is that correct?
AAs far as I remember, yes.
Q Please open up the page where you will find the transcript on the second trial. It is correct that you were the Prosecutor?
A Yes, I was.
Q The transcript contains the remark that the Prosecutor brought tho charge orally in his plea and based it on the law against malicious acts.
A I do not remember any particulars of the way the charge was brought, but as the old charge Was not withdrawn, it can be assumed for certain that the transcript is correct, for oral additions were not customary when the indictment was read.
Q Dr. Mueller, would you have a look in the transcript and see what it says about the plea which you put forward?
A The Prosecutor asked that the defendant should be sentenced to death as a dangerous habitual criminal and should be sentenced to loss of civic rights for life and that he should also pay the costs.
Q. As regards your plea, it was made within the meaning, within the framework of the charge, is that correct?
A No.
Q But that is what you read out just now?
A But as far as the facts are concerned, it is not correct. That is what I mean. The plea here certainly was for a connection between the Malicious Acts Law and the law Concerning Dangerous Habitual Criminals.
Q I do not understand in what way that contradicts what you said just now.
A Well, since it says "within the framework of the indictment" I believed -- well, the indictment was extended at the trial. That is where I saw a contradiction.
Q The indictment was extended at the trial?
A Comparing the original indictment and the plea which I made at the end.
Q Dr. Mueller, between the first and the second trial was a defense counsel appointed for Strobel?
A Yes, according to Page 47 of the files. No, that is not correct. Page 42 at the back of the page. Page 47 names the person, gives a change in the name of the person who was appointed defense counsel.
Q A defense counsel was appointed by the Court?
A Yes.
Q Dr. Mueller, you say in your affidavit it is evident from the transcript that the defendant did not have his attention drawn to the fact that the legal point of view had changed. It is hardly possible that you remember the actual course the trial took?
A No.
Q It would therefore probably be more correct to say it is not evident from the transcript whether it was pointed out to the defendant that there had been a change in the legal point of view?
A I am basing myself on the correctness of the transcript.
Q Was the justice official Kastner the man who took down the minutes? Would you look that up, please?
A Yes, it was Kastner.
Q Do you know that Kastner's transcripts frequently showed defects?
A No, I really only know Kastner by sight as far as our official relations are concerned.
Q Were the defendant and his counsel informed about the fact that it was possible that the sentence might be passed on the basis of the Habitual Criminal Law?
A They must have been informed, yes.
Q Witness, I am now coming to the Schnaus case. About this case you say that the sentence passed on Schnaus under Article 4 of the Public Enemy Law in a later report by the Prosecutor General had been criticized as a serious mistake in the application of the law. Which provision did the Prosecutor General wish to see applied? Do you still know that?
AAs far as I remember, the Law Against Dangerour Habitual Criminals.
Q What would have been the consequence of the application of that law?
A The death sentence, too.
Q Do you remember that the Prosecutor General in his opinion took into account the person of the criminal and the particularly base crime and therefore turned down a reprieve?
A Yes, I do remember that.
Q I am now coming to the Giani and Sala case. Did you represent the Prosecution at the trial?
A Yes, I did.
Q Do you remember that in the case of Giani and Sala when the short charge was brought a defense counsel was appointed by the Court?
A I cannot say so without seeing the files, but I assume so.
Q Do you remember on what legal provisions the indictment was based?
AAmong other things probably on Articles 2 and 4 of the Law Against Public Enemies in connection with theft committed by a gang.
Q Is it correct that in this case the Prosecution was thinking of demanding the death sentence of Giani and Sala?
A Yes, that is correct.
Q Three thefts were committed, and in the case of two thefts Giani and Sala disputed that they had taken part in them. Were there any indications to that effect?
A There was circumstantial evidence; otherwise the charge would not have been brought.
Q After all evidence had been taken did you maintain your plea for the death sentence on Giani and Sala?
A I asked for the death sentence.
Q You go on to say that the evidence brought out several points in favor of the defendants. Do I understand you correctly if I assume that the trial did not bring out any new points of view, either for or against the defendants?
A Essential new points of view I cannot remember.
Q. Can you remember that after the defendants had been arrested, that the thefts ceased?
A. I do not believe that they ceased altogether.
Q. Witness, I am now coming to the Becker case. In that case, too, you were the prosecutor?
A. Yes, that is right.
Q. Can you remember that in that case too, the prosecution intended to ask for the death sentence?
A. I do not remember that with certainty.
Q. Witness, I am now coming to the Friedchen case. I am going to show you the files. Please have a look at this document. Give us a statement before you read it aloud, and then tell us whether these are the instructions from the prosecutor general.
A. To begin with I must say that the Friedchen case was not dealt with by my department, referat, so that the report by the prosecutor general which I am now going to read aloud -- I correct myself -- the instructions from the prosecutor general -- naturally did not reach me at the time. I only beard about it at the trial; it is a letter from the prosecutor general in Nurnberg, No. 9941, -
MR. KING: If the Court please , in view of what the witness has said regarding these instructions, it would seem to me that the reading of it would add nothing at all to the record because obviously they had no effect on this witness. Therefore, since they are rather long, I suggest that they do not be read, and I specifically object to their reading at this time.
THE PRESIDENT: Suppose they had an effect on Oeschey?
MR. KING: That wasn't the question; it was what effect it had on the present witness. If the question were directed the other way, the manner in which it involved Oeschey, I would withdraw my objection.
DR. SCHUBERT: It is important for the defendant Oeschey, and may it please the Tribunal, it's instructions which must have been submitted to the witness at the time because he was a prosecutor at the trial.
A. Yes, as prosecutor at the trial I did see these instructions.
Q. Please read it out, witness.
A. RE: Criminal proceedings against Heinrich Friedchen. I would ask you to examine whether the application of the law of 4 September, 1941 is not advisable. The defendant has nineteen previous convictions, and served more than eight years in prison; he comes from a family with serious criminal indications; the father was sentenced thirty-three times; one brother nine times; another ten times; he shows all the characteristic criteria of an incorrigible criminal who is a public danger, and is also otherwise of inferior character, and shies away from work; taken all in all an a social type, who is nothing but a burden for the community; he is at an age at which, if an improvement can be expected at all, he should have one through a different conduct of life.
Q. Was that the instruction by the Prosecutor General, witness, which you saw as prosecutor?
A. I cannot remember, but his files were passed to us at the trial; that can be assumed for certain.
Q. At the trial did you ask for the death sentence on the basis of those instructions?
A. Yes.
Q. Witness, in your affidavit you say that feeble-mindedness of the defendant had not been taken into consideration. Do you remember that the court physician described the defendant as responsible , that he thought that neither Article 51. Section I or II applied?
A. I do not remember details, but I believe I can recollect the fact that feeble mindedness up to a certain extent did exist in his expert opinion.
Q. I am now coming to the Riegelbauer case. In that case, too, you refer to the feeble mindedness; were you at that trial the prosecutor?
A. As far as I remember, yes; as far as I know I only know about the case from the trial.
Q. Can you remember what sentence you demanded?
A I assume that I asked for the death sentence.
Q. Do you remember that the expert Dr. Schumacher gave an expert opinion according to which the defendant was not to be described as feeble minded, but only as somewhat stupid?
A. I believe that the circumstances were similar to the previous case.
Q. Dr. Mueller, I am now coming to the Pirner case, the juvenile case. Do you know under what law Pirner was indicted?
A. Under the law? I do not remember for certain, but Article II and IV of the Law Against Public Enemies, in conjunction with serious theft; it may have been that; beyond that, I believe I can remember the indictment had quoted the Law Against Juvenile Serious Criminals.
Q. Witness, may I show the indictment to you. I believe that the law is not quoted.
A. You are right; it is not quoted.
Q. Witness -- did the view of the prosecution matter whether the defendant committed the majority of his crimes before his eighteenth birthday? There were other proceedings that concerned juvenile criminals; is that correct?
A. That is correct.
Q. Therefore, was what mattered the question whether the defendant in respect of the few crimes which he had committed before his eighteenth birthday, was it to be evaluated in the same way as a person over eighteen years of age?
A. The indictment as is evident from the files was not based upon that.
A. What sentence did the prosecution intend to ask for?
A. As is evident from the files, the death sentence.
Q. Dr. Mueller, do you remember what was the relations between the thefts which were committed before and after the eighteenth birthday-whether the majority were committed before or after?
A. I cannot say that without the files.
THE PRESIDENT: Dr. Schubert, we have reached the time for our usual noon recess. We will , therefore, recess until 1:30.
(A recess was taken until 1333 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours.)
THE MARSHAL: Persons in the Courtroon will please find their seats.
The Tribunal is again in session.
DR. SCHUBERT: May it please the Court, may I continue the crossexamination of the witness Mueller?
THE PRESIDENT: Proceed.
Q Dr. Mueller, we are now coming to the Irmgard Hofmann case. You stated in your affidavit that the request for reopening of the trial was refused by Oeschey. I am here showing you the file on the Hofmann case. Is that what you have before you, the decision about the application for the reopening of the case?
A Yes, I meant Oeschey as presiding judge.
Q Who also signed the decision?
A District Court Director Daeumler and District Court Director Hofmann.
Q Would you please state merely what was the subject of the decision?
A The application of the defense counsel of the convicted Irmagard Hofmann, is rejected as inadmissible -- she was to pay the cost.
Q In your affidavit you state that you have misgivings about this procedure. Do I understand you correctly that you said, in your opinion, another trial should have taken place, and not the written method; is that correct?
A Yes, that is my opinion.
Q But you admist, witness, that that is a question of law, which can be argued?
AAny legal question can be argued, probably.
Q Did the Reich Ministry of Justice, thereupon, still make a decision about the question of clemency?
A Of course.
Q You said, furthermore, that the complaint of the defense counsel against the decision, that is, the decision which you have just seen and read, was not admitted because it was inadmissible.
Was there any legal recourse against the decision of the Special Court, and thus against this decision?
A. At that time, no longer.
A. Dr. Mueller, I am now coming to the Montgelas case. In your affidavit you state that it was a case of political exterpination which was handled in a most hideous fashion. You, yourself, if I understood you correctly, only dealt with this matter until the files were turned over to the People's Court; is that correct?
A. Yes.
Q. Your criticism about this case of extermination thus refers to the time at which you know the files; is that correct?
A. By that statement, I wanted to desccibe the manner in which, in my opinion, the Count Montgelas was made to make a statement about the conditions in the Reich of that time.
Q. That was, to put it briefer, the method of the trap in the Grand Hotel?
A. Yes*
Q Yes, that is the method by which the Gestapo laid a trap for Count Montgelas.
A Yes, that is what is was.
Q Can you bring the defendant Oeschey into connection with this matter in any way?
A I have no reason by which I could do that.
Q Dr. Mueller, do you still remember what the statements of Count Montgelas, which were objected to consisted of?
A The remarks were very extensive. I can hardly remember precise details any longer.
Q At that time, when you were prosecutor, you decided to turn the matter over to the People's Court. How did you thus qualify the deed of Count Montgelas from a legal point of view?
AAccording to the jurisdiction prevailing at that time, in view of the content of the remarks there could be no doubt that it meant an undermining of the military strength.
Q Another witness testified once, here, that remarks of such seriousness never occurred during the entire time he practised. Can you confirm that?
A I can say, in any case, that there remarks which fell out of tho framework of denunciation of a similar kind which normally occurred.
Q What sentence could Count Montgelas expect of the People's Court? What would have befallen him at the Peoples Court?
A I know tho sentences which the people's courts pronounced only from newspapers, but I do not doubt at all that if it had been possible if time had permitted, to carry out the trial at the Peoples Court, it would have pronounced, the death sentence.
Q With the turning over of the files to the People's Court your official knowledge of the matter ends, is that correct?
A Yes, as a whole, yes.
Q To what extent the defendant Oeschey was actively working on the later trial you can thus not say from your own knowledge, or experience? 3772
A No.
Q Witness, as the last case you mention the case Freicorps Plaerrer. In that case, were you also the prosecutor in the trial?
A Yes, I was.
Q In your interrogation by the prosecution, were you shown any documents about this case?
A The interrogator showed me portions from a copy of an indictment.
Q An indictment was shown to you?
A It was not shown to me, but something was read to me from it.
Q Dr. Mueller, do you know what was the legal point of view of the prosecution in this case view under which law the indictment was made?
A To give an exact legal qualification in view of the large number of penal laws which could be considered, is not possible for me without document. However, certainly the exploitation of the blackout and also article 2 of the law against public enemies were considered.
Q And the order against violent criminals, could that also have been in question?
A Yes, that, too, could have been considered.
Q In this case, did the General Public Prosecutor Bens have a very active interest?
A Yes.
Q Was there an instruction issued to the prosecutor what sentence he should ask for?
A General Public Prosecutor Bens, after the submission of evidence, gave me instructions.
Q Were the instructions to the effect that the death sentence should be asked for for the three main criminals?
AAs far as I remember, against Kurz and Mandziuk an application for death sentence; against Malinowski, I can not remember.
Q Was the defendant Kurz a German?