COMMISSION III CASE III
Q If I understood you correctly, from the spring until August of 1944 you did not appear in sessions at all?
A Yes - it was interrupted. At that time I was sick, from February until about May 1944, and then in the beginning of June I again fell ill. That is one month - there was an interim when I was not working.
Q All right. And after you recovered from your illness and had returned you worked only to a limited extent?
A Yes.
Q Dr. Mayer, you deal with a number of cases in your affidavit. There are the cases of Friedchen, Katharina Meyer, Frieda Bayer, Karl Bauer, and the case Fuchsbauer. Can you tell me whether in any of those cases, you were the prosecutor working in the session?
A I was the representative of the prosecutor in the case Katharina Meyer, and in the case Frieda Bayer. And the rest of the cases cited here I was the expert working on the case.
Q Dr. Mayer - may I show the files of the Friedchen case to you just now... Do you have the working file of the prosecution in from of you?
A Yes, I do.
Q Please look at the first page in these files - the direction by the general public prosecutor to the prosecution, Nurnberg. Is that correct?
A It has to be regarded as an instruction.
Q Was the instruction to the effect that the so-called law of the 4th of September 1941 was to be applied - that is, that the defendant was to be regarded as a dangerous habitual criminal and treated as such?
A It says here - "I request you to examine whether the application of the law of the 4th of September 1941 is not the proper one."
Q And what does that mean?
COMMISSION III CASE III
A Then there is a longer reason for this given.
Q What does that mean, Dr. Mayer, the lav of the 4th of September 1941?
A It means that it was to be considered whether the person concerned should be condemned to death as a dangerous habitual criminal.
Q Dr. Mayer, in this case it was the question, and you also state that in your affidavit, as to whether Friedchen should not be fully responsible for his crimes. Some time ago you read the sentence of the Special Court in Nurnberg. In your affidavit you state that Friedchen, in an earlier trial, in a sentence of the Court of the Front, had been declared not fully responsible for his acts. Can you now confirm from the sentence that another court - namely, the Local Court in Wiesbaden, had also decided the same way previously -- but that they had refused to assume limited responsibility for his acts?
Court 3 Case 3 (COMMISSION III) A. It says here:
"According to the expert opinion of Medizinalrat Dr. Baur, the defendant Bole is feebleminded. His feeblemindedness, however, is not so extensive that he could not realize the extent of his crime and that therefore his responsibility was lowered or that he was not responsible for it at all."
Q. That is the opinion of the expert, Herr Dr. Meyer, if I understand you correctly.
Q. The Court agrees with the expert opinion. Therefore, the prerequisites of article 51. Paragraph 1 or 2 of the Penal Code, apply.
Q. Dr. Mayer, I asked you about another previous decision.
A. Yes; I shall read it further.
Q. No, you are not supposed to read it; you are only supposed to tell me. You have had a look at the sentence, don't you remember it any more?
A. "In 1939, the defendant was also examined by an expert regarding his responsibility for crimes (the Jury Court in Wiesbaden). At that time too he was regarded as fully responsible from the point of view of Penal Legislation."
Q. Thank you very much, Dr. Mayer.
A. Well, there is another paragraph.
Q. In your affidavit you cited this sentence of the Field Court. However, the other decision is what I wanted to know, the one you did not cite in your affidavit.
A. Well, in addition to that, Friedchen was -
Q. (Interposing) Dr. Mayer, I ask you not to read any further; you have answered my question.
Now I am going over to the case Katharine Meyer. In this case you were the prosecutor, were you not?
A. Meyer? Yes.
Q. May I show you the file?
(Document submitted to witness)
Court 3 Case 3 (COMMISSION III) Do you have the working file of the prosecution in front of you?
A. Yes.
Q. Can you state from that only what plea the prosecution intended to make?
A. They intended to ask for the death sentence.
Q. Dr. Mayer, do you remember that Katharine Meyer had opened about five hundred parcels? Or don't you remember the case any more?
A. About five hundred. As far as I remember from the session, there were about five hundred. In the indictment I see here that the figure one thousand is cited. As far as I remember during the trial , the figure of five hundred was made the basis of the decision. Yes, here in the trial the figure five hundred, or five hundred parcels which were robbed, was made the basis of the sentence.
Q. Dr. Mayer, the death sentence which was pronounced in this instance in view of the high figure of five hundred parcels, was that in accordance with the general jurisdiction of the time?
A. It was in accordance with the jurisdiction of the time.
Q. You then cite the case of Frieda Bayer. Dr. Mayer, did you describe that case on the basis of having seen the files, or did you write that from memory?
A. I described that case from memory.
Q. Can you tell me, Dr. Mayer, according to what legal regulation Frieda Bayer was indicted and condemned?
A. According to the decree against public enemies, Article 4.
Q. I am now going to the case of Karl Bauer, in which you -were the expert working on the case.
Do you have the working files of the prosecution in front of you, Dr. Mayer?
A. Yes.
Q. Can you state from them what plea for penalty the prosecution intended to make for Bauer?
A. The death sentence.
Court 3 Case 3 (COMMISSION III)
Q. And now, in regard to the case of Fuchsbauer, you state here, Dr. Mayer, that the expert, Dr. Kunz, gave an export opinion according to which it could be justified that a lowered responsibility for his crimes could be assumed in the case of Fuchsbauer. I now show you the file.
(Document submitted to witness)
Do you see the opinion of the expert in this file?
A. Yes.
Q. Dr. Mayer, was this expert opinion of Dr. Kunz given before or after the indictment?
A. It was given before the indictment was filed.
Q. Would you please turn some pages in the file? In the back are the working files of the prosecution. Can you find the working files?
A. Yes.
Q. From those files, please tell us what plea for penalty the prosecution had intended to make?
A. The death sentence.
DR. SCHUBERT: I have concluded my cross-examination.
THE PRESIDENT: Is there further cross-examination?
(No response)
Is there re-direct examination?
MR. WOOLEYHAN: No, Your Honor.
THE PRESIDENT: The witness is excused.
(Witness excused)
MR. WOOLEYHAN: May it please the Commission, may I ask your indulgence for sixty seconds or so while Mr. La Follette is summoned? I believe he has a few words he wants to say.
THE PRESIDENT: It has been suggested by Judge Blair to me that it would be desirable that all of the defense counsel who are available should be present at the conference which I presume is about to take place. If there are any of defense counsel who could be conveniently Court 3 Case 3 (COMMISSION III) called, I think they would appreciate being called; and we will take a recess to make it possible for those of the defense counsel to come if they are available.
We will take our recess at this time for fifteen minutes.
(Recess taken)
Commission III, Case III.
THE MARSHAL: The Commission is again in session.
MR. LA FOLLETTE: May it please the Commissioner, the Prosecution would like to state that the Prosecution is advised that there are no more witnesses who can at this time be produced through the office of the Secretary General. The Prosecution is suggesting that the taking of further testimony by the Commission be terminated, and states its position to the Commission, to be reported to the Tribunal, that any other witnesses, any other affiants who have not been produced for cross examination may be, of course, produced as part of the defendants' case. And if it should develop that these affiants cannot be produced in person, then the Prosecution anticipates that the Tribunal when it is in session, and the Commission may report the Prosecution's position, may make such orders as to giving the defense an opportunity to test the veracity of those affidavits in such a manner as the Tribunal may then direct. There being no further testimony, or no witnesses or affiants to be produced, the Prosecution respectfully petitions the Commission to end these proceedings at this time.
THE PRESIDENT: Our understanding of the situation is that the Secretary General has produced all of the witnesses -- I should say all of the affiants who were on the list of affiants requested by the defense counsel, with the exception of approximately four who are either sick or cannot be at this moment produced; that the proper procedure would be to go on before the full court with the presentation of the main case of the defense, with the reservation that those affiants who have not been cross examined but who have been requested by defense counsel for cross examination may be produced at a later time as and when they can be produced for cross examination in the course of the defendants' principal case.
That seems to be, as I understand it, the suggestion that at this time it would be appropriate with the approval, by reason of necessity, of those of us who are sitting as commissioners at this moment.
Are there any objections from the defense counsel to that general procedure? (No replies) If there are none, I would suggest three considerations which should be discussed by you at this time. There seems to be no other procedure possible except the one which we have outlined. Then I suggest to counsel for both sides that at this time it would appropriate that notice should be given which will go into the record as to what the desires of defense counsel are concerning:
1. The date at which the full Tribunal should convene for the purpose of hearing the opening statements of the defendants by their counsel;
2. The desires of defense counsel as to the order in which they will make their opening statements; and 3. The order of proof in the presentation of the evidence which the defendants will produce.
One would think, subject to other considerations which have not yet been suggested, that the order of proof would normally be the same as the order of the making of the opening statements. I take it that is not necessary, but would seem to be regular. I think I recall that when the Tribunal was in session, it was indicated, perhaps only by myself, that the order of proof is always a matter within the discretion of the Tribunal, but that the Tribunal would very likely be strongly influenced by the wishes of defense counsel in that respect.
Now as to the difficulties which are incident to the fact that we are sitting only as Commissioners and that it is of course highly desirable that nothing should be done which could in any way be thought to disqualify Judge Marshall on his return, it has occurred to us that it would be proper for us as Commissioners to adjourn to a specified date and to reconvene you before us as Commissioners on that date.
When that date is determined, then the Tribunal will also, we think, there being two of us here present, make an order reconvening the Tribunal for the same date. In that way, it will be made very definite when we are to reconvene. The order as to the reconvening of the full Tribunal will be in the future made by the Tribunal and will be signed by Judge Marshall so that there will be no question as to the validity of the reconvening as a Tribunal with Judge Marshall participating, as we devoutly hope.
Now what suggestions have defense counsel with reference to the three matters which Tie have discussed?
DR. KUBOSCHOK: First of all, I would like to refer to the last two points, and I wish to make this statement: The defense is altogether in agreement that the opening statements as well as the submission of evidence should take place in the order in which the defendants have been put into the deck. That is to say, opening statements and submission of evidence would begin with the defendant Schlegelberger and would then continue in the same order in which the defendants are sitting in the dock.
THE PRESIDENT: The front row first: Schlegelberger, Klemm -
DR. KUBOSCHOK: Schlegelberger, Klemm, Rothenberger, Engert, Lautz, Mettgenberg -
THE PRESIDENT: I understand.
DR. KUBOSCHOK: Now, the second point: the date for the opening statements and immediately there after the submission of evidence. First of all, I wish to refer to the latter point. The Tribunal has already pointed out that in this trial there are a number of general topics which for the purpose of saving time should be dealt with in as uniform a manner as possible by one defense counsel. That is what we wish to do. We believe too that it would be expedient if some of those general topics were to be mentioned already in the opening statement in part in connection with the witnesses which will be called and in part by experts.
The defense also intends to submit general document books; that is to say, document books which are arranged according to the subject matter and which have been compiled in cooperation with all defense counsel. To mention one example: The Special Courts, Historical and Legal Development and Practice. Those subject could be submitted in one document book. We intend to submit those document books at the very beginning. Now at the beginning of a recess, the defense counsel intend to carry out that joint work. For that work, it has already become evident that the recess will have to take some time. For the individual defense counsel too, an adequate recess is absolutely necessary. Even though the session has been interrupted by odd days, the defense in its work, by the continuous course of the sessions, has been limited to a considerable extent. Would you kindly bear in mind that the scrutiny of the evidence and the interrogations of persons who might be used as witnesses require that we should make contacts all over Germany. The trips take up a great deal of time nowadays. Consequently, those journeys, even though in some cases the assistants were sent on those trips, have not yet all been made. Furthermore, it is necessary to contact a large number of prospective witnesses who are in the prison here.
With respect to that, in the past there existed considerable technical difficulties. If we wished to speak to a person in prison here and made our application, generally we had to wait for weeks until we received permission. Only a few moments ago, a colleague called my attention to the fact that since the fifth of May he had been waiting for a permission, which he has not yet received. Yesterday, a technical change was made which certainly will eliminate those technical difficulties. We now no longer need to examine those witnesses in the presence of a Commissioner, who as far as I know had to carry the burden of all trials.
From now on, we can submit our wishes immediately to the prosecution, and only if the prosecution deems it necessary, an official of the prosecution will attend the examination. I hope, therefore, that these difficulties will now be removed and that in a comparatively short while we will be able to finish the work which has gotten into arrears.
Finally, one must also consider that on the hearing of those witnesses and also the result of the cross examinations of the affiants, which has just been carried out, that on that depended the further dispositions of the defense counsel.
June-M-JP-8-l-Sampson (Int. Hahn) After his results we must now introduce various pieces of evidence, and we must make the necessary preparations.
If I may briefly outline once again the way in which the Defense imagines the trial will now continue. When the recess is over, the opening statements will be read out. After the opening statements we will call the experts on general questions. At the same time we will submit the general document books, and then we will start with the Schlegelberger case which, by nature of the subject, will be comparatively extensive. The matter itself makes it necessary for Schlegelberger to dual with the large number of questions which will emerge; and it is obvious that I personally, as Defense Counsel for Schlegelberger, will have special difficulties of course. I would ask the Court to be good enough to consider that. All of us are, however, of the conviction that an orderly general preparation of the Defense's case, the systematic introduction of the Defense is only possible with exact preparation, and will make it possible for us then when we come to the individual cases to save enough time so that the recess which is being granted to us now will certainly be made up again as far as time is concerned. For all those reasons I would ask the Court to fix the recess at three weeks. I believe that on no account will we be able without such a recess being granted to us to carry out the plans for the defense in that way. If we can carry out the plans for our defense in that manner, if we are able to carry them out in an orderly manner, we are certain that at a later time, at one stage or another of the trial, we will not need again to ask the Court to grant us another recess.
If we first of all treat matters from a general point of view, and then go into the particulars, I am certain that for all the participants of this trial the work will be made easier, and in the last analysis time will be saved. Thank you.
THE PRESIDENT: Sitting as Commissioners, we will, when we recess in a few moments, recess until Monday Morning, June 16th, 1947, at which time Counsel, officials of the Court and the defendants will be present.
The matter of setting the date at which the full Tribunal will reconvene will be submitted to judge Marshall, and an order will be made by the Tribunal, signed by Judge Marshall, and distributed to the interested parties in the usual manner in the immediate future. I think there is nothing more we can do at this moment. Is there anything else?
DR. KUBUSCHOK: May I deal with one more question which the Prosecution has broached, that is, the introduction of evidence which is based upon books which are in libraries, or in the possession of other people. The Prosecution has suggested that extracts from those books, with a certification by library officials, etc., attached, could be submitted. That certificate by library officials constitutes a very great technical difficulty. In the course of the last few months, we have only been able to obtain those books from the libraries with the greatest difficulties. Generally speaking, the libraries have been destroyed, and frequently it is a matter of luck if we do obtain the last copy which may still be available in one library. Those libraries need their book very urgently. Consequently, we as a rule often receive them with very great delay, and then only for a short period. We have had copies made, and we believe that as it appears to be customary in the other trials which are being held, and certainly was customary in the IMT trial, we thought it was sufficient for the Defense Counsel to certify himself that he made the copy from such and such a book which he obtained from such and such a library. All that preliminary work would have teen useless if, according to the suggestion of the Prosecution, we would now have to try to once again to obtain those books. That might take weeks, and might delay matters. Therefore, I would ask the Prosecution to give their agreement and the Court to make a ruling to the effect that the Defense Counsel's own certificate concerning the copy should be considered adequate. I would be gratified if such a decision could be made at an early date, because we would have to make our arrangements accordingly, and, otherwise, we would have to make an immediate attempt to obtain those books once again, and it is to be expected that we would hardly be able to receive them in time for introducing them into our document books.
THE PRESIDENT: Of course it is obvious that the Commission can't possibly make any ruling upon a question which comes before the full Tribunal.
MR. LAFOLLETTE: That is quite obvious. I only would like to make a statement in which the Commission may report to the full Tribunal. I don't quite understand that the problem which Dr. Kubuschok presented arises. The only thing that we had in mind was that these extracts be submitted to the librarian and that he would certify that they are extracts from a book in his library. I never contemplated that they would have to bring the books back. If they have made the extracts, it would not -- I mean presently I can see that it would be too difficult to simply submit them to the librarian and have him certify that this comes from this library; that was all we ever had in mind, and I think all we have ever stated. Perhaps there is a misunderstanding. In any event, it is a matter which the Tribunal can make its own order on, because the Tribunal, of course, is concerned with the evidentiary value of what is submitted to it; and we stated originally, of course, that we would make no objection as far as we were concerned to certain forms of testimony, that, of course, it was a matter which the Tribunal eventually would have to rule upon, and which this Commission can now report. I am perfectly willing to leave the matter to the Tribunal. I simply thought it would make it rather easy at the time; I certainly did not contemplate that the books had to be brought back, but merely that the librarian who has custody of these copies would certify that a copy of this was in my library.
DR. KUBUSCHOK: These are the difficulties. If now we were to ask for a certificate by the librarian, we will hear in many cases that the librarian is unable to make out the certificate because the book is not there.
The books in the University libraries are being sent out all over Germany. If, for example, we had a book from the Erlangen library and made out copy, and if now we ask the librarian at Erlangen to give us a certificate, he will certainly have to tell us frequently that the book is now -- has now been lent out to someone somewhere else in Germany. Therefore, it would be difficult to obtain such a certificate. We have also had books here which we had sent to us from libraries from other parts of Germany; some of them came from other zones of Germany. If now we would have to go to those libraries, we would certainly often have to go in vain. Altogether, according to the experiences we have had so far, such a certificate, even if we did go on considerable journey, it would take weeks to get them. Concerning the misgivings on the part of the Prosecution, may I point this out. The books from which we are going to submit extracts are not unknown books, but they are part of the large legal literature which, so to speak, is general knowledge; should it not after all be sufficient for the Defense Counsel to make out a certificate that he made his extracts from one of those books which are general knowledge, and that furthermore, for the purpose of identifying the books, he states where he obtained that book at the time of making his copy.
Commission III, Case III.
The sources from which we obtain our books are, first of all, libraries, however, many such books, because of present conditions in Germany, have come from other sources; we receive some from private persons who put them at our disposal for a brief period of time. I hope that the Prosecution will take this difficulty into account, and will agree to my suggestion so that a basis for a later decision to be made by the Tribunal, itself, will be given.
THE PRESIDENT: Your proposal would relate only to actual verbatim copy of a German text into German?
DR. KUBOSCHOK: The German, yes.
THE PRESIDENT: It would not involve problems of translation at all?
DR. KOBOSCHOK: No.
THE PRESIDENT: Then, the translations can be handled here in the usual way?
DR. KUBOSCHOK: Of course, of course; we submit all of our document books in the German language, to the organization of the Tribunal and it sees to the translation.
MR. LA. FOLLETTE: Your Honor, please, of course -- the Commissioner, please, of course, the Prosecution at the time it made its suggestion assumed it would not be difficult. I am not concerned about placing difficulties on the Defense. Eventually what the Commission reports to the Tribunal will be decided by the Tribunal and it occurs to me, certainly, the Prosecution would want to have the text identified, the edition identified, the date of the publication and the source from which it was obtained, so that if it came from the library of Kiel, then we would write them and say: "If you do not have this, to whom did you lend it to." It is not so much that I questioned the honor of Defense Counsel in making the proper translation, but it is customary with lawyers occasionally to take the part which we like and leave out, maybe something we do not like, and I would like to look for that. That is a very human fault.
Commission III, Case III.
THE PRESIDENT: We will recess -
DR. MARX (for the defendant Engert): May it please the Commission, I am reverting to the suggestion by the Commission concerning the order of the opening statements and of the defense in general; that is the submission of evidence.
In respect to the defendant Engert, there exists a special case. The defendant Engert is still in the Municipal Hospital of Nurnberg, and medical opinion about him is extremely unfavorable. According to the expert opinion by the American doctor, he is a chronically sick man who has an inflammation of the gall bladder, a disease of the heart muscles, extremely grave arteriosclerosis, and gastritis. Furthermore, it is impossible for the Defense Counsel to maintain and to keep in contact with the defendant Engert. He does not respond at all to questions by the Defense Counsel; he is not in a position to make statements; he shows altogether a lack of interest. And, I assume the Court is in possession of the medical opinion which was given on 1 May 1947. I cannot say whether a change has occurred, therefore, I would ask you to have the defendant Engert examined by a doctor once again and have another medical opinion submitted on him.
Today, however, I would like to request that the Engert case should be removed from the order, and concerning the opening statement and the submission of evidence, should come at the end of the defense, so that in the interim there should be a possibility for arriving at a final decision as to whether Engert is able to stand his trial or whether as time goes on his condition of health may improve. His present state of health makes it impossible for the Defense Counsel to assume the responsibility, as Engert, himself, cannot make useful contributions to his own defense.
THE PRESIDENT: Of course, this is also a matter in which we cannot rule. Possibly Defense Counsel may be willing to agree that the defendant Engert's testimony may go in at the end; that is a matter for you to confer with, confer upon with your associates.
Commission III, Case III.
As to the opening statement is there any reason why you cannot make an opening statement in the regular order?
DR. MARX: Your Honor, it would be useful, I believe, if the opening statement, too, would come at the end so that the medical quarters too, possibly a Psychiatrist could exercise some influence on Engert for at the present time he suffers from complete apathy. The Defense is, of course, in a position to make an opening statement, but without the cooperation of the defendant.
THE PRESIDENT: The Commission will recess until June 16 at 9:30 A.M.
(The Commission thereupon adjourned until 0930, 16 June 1947.)
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 23 June 1947, 0930-1630, Justice James T. Brand, presiding.
THE MARSHAL: All persons in the courtroom will please find their seats. The Guard, please close the door.
The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: The Tribunal will come to order.
Mr. Marshal, you will please ascertain if the defendants are all present.
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of the defendant Engert who is absent through illness.
THE PRESIDENT: The defendant Engert has been temporarily excused.
Before proceeding with the business of the day, the Tribunal has certain matters to communicate, and which should be made a matter of record.
We are sure that Counsel for the Prosecution and Defense have known of the unfortunate illness of Judge Marshall, which is a matter of very keen regret to all of us.
At this time I will read a portion of a letter which members of the Tribunal received from Judge Marshall on June 20th, and will then read other matters relevant to that situation. Judge Marshall said in part in this letter, I quote:
"I am advised by the physicians that until I can have a little more rest and recuperation it will be unsafe for me to appear in court on Monday, June 23rd for a strenuous six hour session on the bench, and, therefore, I am notifying you of this fact.
"I should add that I am recovering my strength rapidly, but will not be sufficiently recovered to begin sessions on Monday, June 23rd."
Signed, "Carrington T. Marshall."
I now read a small portion of Military Government Ordinance No. 7, Article 2-F. I quote:
"In case of illness of any member of a Tribunal or his incapacity for some other reason, the alternate, if one has been designated, shall take his place as a member in the pending trial. Members may be replaced for reasons of health or for other good reasons, except that no replacement of a member may take place during the trial other than by the alternate."
I now read the following:
"Office of Military Government for Germany, U.S., APO 742, Berlin, Germany. General Orders No. 52, 21 June 1947, pursuant to Military Government Ordinance No. 7:
"1. Effective as of 19 June 1947, pursuant to Military Government Ordinance No. 7, 24 October 1946, entitled 'Organization and Powers of certain Military Tribunals', James T. Brand is appointed presiding Judge of Military Tribunal III, vice Carrington T. Marshall, relieved because of illness.
" 2. Justin William Harding, alternate Judge, is appointed Judge for Military Tribunal No. III.
" By Command of: General C lay.
"C.K. Gayley, Brigadier General GSC, Chief of Staff.
"Official: A.D. Van Arsdale, Lieut. Colonel, AGD, Acting Adjutant General.
"Distribution: B Plus.
"To: AGMRU, EUCOM.
"The above telephonic order received 21 June 1947, at 1056 by the undersigned."
Signed: "J.E. Ray, Colonel, FA, Secretary General."
The original order will be incorporated in the record in the behalf of the Tribunal.
I now declare that the Tribunal is reconstituted pursuant to the order which I have just read.
At this time, the Tribunal expresses its extreme regret at the emergency which has arisen, and its deepest sympathy for Judge Marshall and his wife, whom we hope and expect will recover.