"The enclosed two bundles of reference files of attorney-at-law Dr. von Birckhahn--"
If Your Honor please, the prosecution has asked to have Document NG-670 marked for identification as Prosecution's Exhibit 525. On page 14 in the English, it says:
"The enclosed two bundles of references files of attorney-at-law Dr. von Birckhahn were submitted to state Secretary Dr. Sclegelberger on 8th May 1942 by the Reich Marshal. The record can be found in the Adjutant's Office (first public prosecutor Ebersberg) of the state Secretary.
"The files should be kept under lock and key.
"To be resubmitted on 1 June, 1943."
And then on Page 15, I find here a communication dated Berlin 29th of May 1942, marked: Acting Reich Minister of Justice, addressed to the Reich Marshal of greater German Reich, the Minister President Hermann Goering.
"Your Honor, "I am deeply indebted to you for your letter of the 8th inst.
I will continue to keep for a year under lock and key the files of the deceased attorney-at-law von Birckhahn in connection with the criminal proceedings and various civil law-suits against Pieper, and then have them destroyed after the removal of any deeds of execution and documents which may be among them.
"Assuring you of my special devotion, Heil Hitler!
"Your respectfully (signed) Dr. Schlegelberger."
Do you recall that correspondence now?
A No. Well, I have to admit that I have no recollection of that case.
Q You find it also there as I have read them, do you not, in the document?
A I have read it, yes, yes.
Q And on May 12, 1942 you did write Dr. Lammers that you had visited with Goering at Karinhall, is that correct?
A I said before already that Goering asked me to come to see him because he wanted a legal opinion in a case. That may have been in May.
THE PRESIDENT: We have reached the time for the recess. We will recess until one-thirty this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 1 July 1947.)
FRANZ SCHLEGELBERGER - Resumed CROSS-EXAMINATION (Continued)
THE PRESIDENT: Mr. La Follette, before you continue
MR. LA FOLLETTE: Yes, Your Honor.
THE PRESIDENT: The Tribunal has received the report of medical experts concerning the condition of the Defendant Engert. As medical reports made for the understanding of medical men, we have no criticism of the reports. None of the reports, however, answer the questions which the Tribunal considers to be questions which should be answered by medical authorities. We are unable to appraise the technical language used in these medical reports, and are unable to determine from them the answers to the simple questions on which the Court must be informed. We have prepared three questions, and we think that the experts who have examined the defendant Engert should be able, from the medical standpoint, to answer these questions so that the Court may be advised. The question will be re-submitted to the experts.
We have just prepared the questions, and they are still in the English; we will read them and if Defense Counsel, or any of them, desire a translation thereafter, it can be furnished. Concerning the physical examination of the defendant Engert -
Question I: Is the defendant Engert physically able to come to Court and be examined as a witness?
Answer: Yes ________. No _________ .
If the answer to Question I is in the affirmative, then answer the following:
Question II: Would the present condition of defendant Engert be rendered worse by reason of attendance in court for examination?
Answer: Yes ________. No _________.
Question III: If the defendant Engert should attend Court and be examined as a witness, is he mentally capable of understanding the nature of the charges against him and of giving a fair presentation of his defense with the aid of his counsel?
Answer: Yes ________ . No ________ .
I take it that it is clear the blanks will be filled in accordance with the conclusions of the experts.
Now, pending our further consideration of a further report, it should be made clear that we are not excusing Counsel for the Defendant Engert from attendance upon the Tribunal, and that we consider it their duty to attend and to defend as they deem necessary for the protection of all rights of the defendant Engert. That is as far as the Tribunal is ready to go at this time.
As to these medical reports, and for the benefit of such, if any, of the gentlemen present who can understand then, I assume there will be copies available. The originals, which are in my possession, will be put in the custody of the Secretary General.
You may proceed.
BY MR. LA FOLLETTE:
I ask the Secretary General if Document NG-670 is back on your desk. I wonder if you would send it back so the witness may have it for a few moments longer.
THE PRESIDENT: I might add that the medical reports by the German experts are in German. They can be examined without any translation.
BY MR. LA FOLLETTE:
Q Do you find on page 9 of the English translation, Dr. Schlegelberger -
A Yes.
Q A sentence which reads this way -- the defendant referred to, of course, is a man by the name of Pieper. "The defendant also goes so far as to maintain that so considerable an admixture of private interests in the official activities of a civil servant is intolerable and reflects unfavorably on the integrity of the personality of Herr Hermann Goering and hence on his credibility." I also find on page 11 in the English, the reference to the distribution of valuable presents I July -A-BK-13-3-Sampson (Int.
Wartenberg) to Herr Ministerpresident Goering.
"As the distribution of these presents took place over a rather long period of time, the Herr Ministerpresident could certainly not conclude that a certain group of industrial magnates had the obvious intention, by means of these gifts, to gain the goodwill of the Herr Ministerpresident and thereby obtain commercial advantages in the bargain." I also find on page II of the English translation - in one case the defendant is accused, in his own opinion, to be sure, unjustly, of having done harm to the Winter Relief Work. In this case the indictment stated that the defendant was allowed a. perfectly free hand; both Herr Hilgenfeld and Herr Albert Bormann had relied upon each other, each assuming that the other was supervising the defendant.
I also find it stated, although I can't exactly quote it for you here, but you will find it in this document, that Goebbels had opposed the Winter Relief Fund, and that Goering, as Prussian Ministerpresident, I believe at that time - it may be Reich Minister President - had supported it. In view of your correspondence with Hermann Goering, did he discuss with you the contents of these papers that you agreed to hold?
A I looked at the document more closely during the recess, and now I can state the following from my memory. On the occasion of my visit in Karinhall, Goering told me that he had from the office of the deceased lawyer von Birkhahn received working files; that he had nothing to do with those matters; and he wanted to put them into the custody of the Administration of Justice. Now, the situation is as follows: The files of deceased lawyers are kept for sometime; the files of deceased notary publics must even be kept in the custody of the Administration of Justice; and certain time limits have been set for their custody. Therefore, I did not oppose that these files were sent to us. The Ministry of Justice was the correct authority, and the files were kept there until such a time as the prescribed time limit had expired. About the contents of these files, Goering did not speak to me.
Court No. III, Case No. 3.
Q Now was it customary that files of that kind should be kept under lock and key?
A I said already that the files of the notaries had to be kept that way, and the files of lawyers were, as a rule, kept for some time.
Q Yes. Under lock and key?
A I assume so.
Q Now we discussed yesterday the Prosecution's Exhibit 197. That was a Fuehrer Information Sheet dated 1942, or described as 1942, NR-66, Berlin, 3 July 1942. This was in answer to a question submitted to you by Dr. Brieger; the attorney for the defendant, Cuhorst. May I hand this to you?
As I recall, you stated that that could well have been only the work of a Referent and was not official. Am I stating about what you said correctly?
A Yes.
Q After seeing the photostat of the original which is printed, does that change your opinion? In other words, would the Ministry have printed the mere opinion of a Referent which was not to be considered as a final word?
A Well, that question has been discussed already during the course of this trial. There is a misunderstanding here if the representative of the Prosecution thinks today as he did in the past that this is a printed piece of paper. This is not printed, but it has been written on a special typewriter. It is nothing but another memorandum written on a typewriter, and this is also written on a typewriter which I had them buy especially at the time because Hitler could only read such large print, so the outside appearance does not give you any information as to its nature.
Q I believe you said yesterday that you didn't believe that any such case had been decided. May I ask you this: you also don't think that any Referent in your office while you were running the Min Court No. III, Case No. 3.istry would have just manufactured the facts of a case without having some source of information, do you?
A No, I certainly do not think so, but what I suppose happened is that here there was somehow a mistaken interpretation of his sentence, because I cannot imagine that such a sentence was pronounced at all.
Q But if there was other testimony that such a sentence had been pronounced by the Special Court at Stuttgart, then the mere form in which you find this document wouldn't lead you to conclude that such a sentence had not, in fact, been pronounced there?
A I didn't quite understand your question.
Q Well, the mere form in which you find Exhibit 197 which you say is merely a typewritten document, that doesn't necessarily mean to you that there could not have been such a case decided in Stuttgart, does it?
A No, no. Certainly not.
Q Yes. Yes. Thank you. Did you ever read "Mein Kampf", Dr. Schlegelberger?
A Yes, I have.
Q In the 1930 edition, second German edition dated 1930 at page 651 I am advised that Hitler discusses the difference between a follower and a member of the NSDAP; that the English translation of what he says reads as follows:
"A follower of a movement is one who agrees with its aims. A member is one who fights for these aims. Accord is based only on the recognition of the aims, membership on the courage to stand up for them and to spread them. Propaganda must, therefore, constantly endeavor to win new followers for an idea, while the organization must take great care that from among the followers only the most valuable ones are made members. Hence, it follows that the number of followers cannot be too large, but that the number of members may more easily be too large than too small."
Court No. III, Case No. 3.
Do you know whether Hitler had any change of opinion between the time that he wrote "Mein Kampf" and the time that he ordered you to become a member in 1938?
A Well, I would like to say the following about that: in large spheres Hitler did the opposite of what he said in his book, so per se from this book you cannot conclude at all what he actually thought and wanted. Perhaps I may mention a very small example. For instance, he emphasized that the abuse of the democratic time would have to be abolished, that civil servants were selected only according to Party membership.
Now we experienced it that he and his associates did the very thing that he fought against in his book, so you cannot conclude anything from that.
Now, Mr. Prosecutor, this is how I understand your question, namely, whether Hitler by appointing me, so to say, a member of the Party testified that I was not only a follower but an especially valuable follower and should, therefore, become a member.
Q I think that is inferable. I think it is inferable from what he said. Yes, go ahead.
A Now may I continue?
Q Oh, yes.
A I believe that your conclusion is daring but wrong, for what Hitler did, he wanted that his facade, his front, looked well, and it did not suit him that the high offices of under secretaries were still held by people who .could not be described as Party members at all.
Q I am glad to have your answer. I believe that is all. Thank you.
MR. LaFOLLETTE: Cross-examination is finished, Your Honor.
JUDGE HARDING: Dr. Schlegelberger, you have testified that you favored the decree as to Poles and Jews and the taking over of NN prisoners for trial to avoid having these people turned over to the police, Court No. III, Case No. 3.is that correct?
THE WITNESS: (Nodded in the affirmative.)
JUDGE HARDING: Why was that?
THE WITNESS: May I ask you a question, namely, does this question refer to the Poles and Jews, or as I now understand it, to the NN prisoners?
JUDGE HARDING: It applies to both.
THE WITNESS: Well, that was for the following reason: from the cases of transfer about which I reported, I saw that the police was the method of power that Hitler used in order to do away with certain people without any legal procedure and I wanted to give those people a legal procedure with a regular trial.
JUDGE HARDING: Now the Administration of Justice at one time, at least, was responsible for the prosecution and trial of all crimes committed in the Reich, isn't that correct?
THE WITNESS: Yes.
JUDGE HARDING: Was there ever a prosecution with trial after September 1, 1939, for the abuse or murder of a person in the hands of the police or in a concentration camp?
THE WITNESS: I can answer that question by saying that the Ministry of Justice as far as I am informed -- that is, these matters were in the pedal sector -- interferred in every case, even in the case of abuses and concentration camps where they could actually do something about it, only since 1939 -- I don't remember the exact date -- these matters were taken out of our hands through the special jurisdiction of the SS.
JUDGE HARDING: That is, I don't believe you quite answered my question. Did the Ministry of Justice ever call or ever prosecute a member of the police or somebody connected with the concentration camp because of abuse of the prisoners or murder of prisoners in their hands?
THE WITNESS: Yes, the Ministry did so.
Court No. III, Case No. 3.
JUDGE HARDING: In what cases? That was after September 1, 1939.
THE WITNESS: In any case, it did happen before September, 1939. I regret, Your Honor, that I can not give exhaustive information about this because those are events and trials which were outside of my official duty, but I can say with certainty and under the oath under which I am now that because of abuse in concentration camps measures were taken with the utmost energy.
Q. Did a person who had been handed over to the police or who was sent to a concentration camp, including Poles and other foreigners, have any recourse to the law as administered in the Reich, for his protection?
A. Well, if these people were in tho hands of tho police, we could not extend that protection to them. As long as those people were in a concentration camp, and to the extent that we had any jurisdiction over concentration camps -- to that extent we always intervened, if somehow or other we could find out that there had been some abuse; but later on, from 1939 on, these matters came under the special SS jurisdiction and we were no longer in a position to interfere.
Q. After that these people had no recourse to the law as administered in the Reich?
A. We could not give them any legal recourse; we of the Ministry of Justice could not extend legal protection to them.
Q. Did they have any legal protection?
A. Well, I would like to say there was a jurisdiction over the inmates of the concentration camp and this was in the jurisdiction of the SS counts. That SS jurisdiction in accordance with its duty, could intervene in the same manner as we if anything had happened, that was the legal protection afforded to them.
Q. That was the only legal protection they had?
A. Yes; I could not name any other.
Q. Now, by what laws, orders or decrees were these people left to the sole jurisdiction of the SS and the police?
A. Well, the Poles and Jews, NN prisoners wore only handed over to the police after my time in office. As long as I was in office this did not happen.
Q. I mean, by what order or decree -- you speak of a time when the SS had their own courts -- by what order or decree-
A (Interposing) The SS got a special jurisdiction through a law of 1939. The handing over of Poles and Jews, of tho NN prisoners and other people, took place through measures of the year 1943, I believe.
However, I do not want to make this statement with certainty, because it was after I had resigned.
Q. After this order setting up special jurisdiction for the SS the Ministry of Justice could not prosecute them, isn't that correct -or try them?
A. No, it couldn't.
Q. Now, I have here this decree which is found in Volume 2, one on page 55, decree of 17th of October, 1939, relative to the special courts for the SS. Are you familiar with that?
A. Yes.
Q. After that the Ministry of Justice could not try these people for abuse or murder of persons in their hands, is that correct?
A. Yes, I assume so. Please take into consideration when considering my answers that these matters were apart from my official activity. Therefore I can rather give an expert opinion than a testimony as a witness.
Q. Well, the effect of this decree was to deprive the people in the hands of the police of all legal recourse, is that not correct?
A. The effect was in any case that they had no recourse to the ordinary moans of administration of justice. But the SS jurisdiction in my opinion had the same duties, because the same possibilities for their people as we had.
Q. The only recourse, then, was to the SS administration of justice -- now, on page 56 there is this decree which is signed by you, implementing that order, which places the police beyond the administration of justice.
A. I didn't quite understand.
Q. I have here on page 56 of Volume 3 an order concerning the jurisdiction of SS courts and police courts in the Protectorate Bohemia and Moravia which implements to some extent the preceding decree which I called to your attention.
This decree is signed by you, which sets up special courts for the police, that is. takes them out from under the administration of justice. Now, this is signed by you. Do you have any explanation of that?
A. May I ask you to state the date again, just the date?
Q. July 15, 1942.
A. Is that an order which was co-signed by Keitel?
(Document handed to the witness.)
Yes. This decree, however, I believe, has nothing to do with the matters we have discussed so far. This decree as far as I remember, was connected with a decree of January of the same year. In this decree of January, in the Protectorate, military jurisdiction -- that is, military jurisdiction -- was rescinded, and only for certain cases the commander-in-chief of the Wehrmacht was granted the right, in the matter of attacks against the Wehrmacht, to found the competency of Wehrmacht courts. The text of this decree which concerns itself with the police is almost literally the same one as that of the decree of January, 1942, regarding the Wehrmacht. And here in this decree for the police they were concerned with certain courts for the SS, but for the Wehrmacht parts, for the SS parts, which were considered a special group of the Wehrmacht and wore supposed to be treated in the same way as the Wehrmacht. Therefore after a discussion between Keitel and the commander of the SS part of the Wehrmacht, the possibility just as it was given to the Wehrmacht, was given to the SS as a fighting troop , to found such courts. But this has nothing to do with the question of SS jurisdiction, which is another question.
Q. Were there any other orders or decrees issued whereby prosecution of SS and similar units was taken out from under the administration of justice and if so what were they?
A. Yes, there was a special law about SS jurisdiction. At the moment I cannot tell you the date, but it was from 1939. That is the civilian SS.
But this decree refers to the SS as part of the Wehrmacht.
Q. Well, is that the decree of September 17, 1939, that I called your attention to?
A. The decree which you were kind enough to show to me just now.
MR. LAFOLLETTE: Will your Honor permit me? It is October. Your Honor said September.
JUDGE HARDING: It is October, yes.
A (Continuing) Yes, 17th of October, 1939. That is the decree about the SS jurisdiction.
Q. After that decree did the Ministry of Justice have any means whereby they could protect a person in the hands of the police in any way whatsoever?
A. In my opinion, not; and that is why I tried to keep all these people away from the police. That is why I wanted to keep all these people within the sphere of the administration of justice, so that I could protect them.
Q. Then these foreigners and Poles and Jews in the hands of the police were beyond any recourse of law in Germany, is that correct.
A. Not in my opinion.
Q. What recourse did they have?
A. Well, they probably had to turn to the higher SS office and to ask for help.
Q. Wag that recourse in law or is that merely administrative?
A. Yes, that was more administrative.
JUDGE HARDING: That's all. That answers my question.
THE PRESIDENT: Is the cross examination completed?
MR. LAFOLLETTE: Yes.
THE PRESIDENT: You may proceed.
REDIRECT EXAMINATION BY DR. KUBOSCHOK:My questions are for the clarification of facts that have arisen out of the cross examination.
Q I go back to the document which was submitted today by the Prosecutor as the first one, NG 1029, exhibit 517, this is your letter to tho Reichwehrninister and Reichsluftfahrtminister in which you described the distribution of the individual members of the People's Court to the different Senates. Can you explain in detail why this distribution of business among the different Senates was reported to the Reichwehrminister and the Reichminister of Aviation; why they were interested in the distribution of the individual judges in the Senate?
A I believe that these ministers had to know whey they could dispose of their own people and when not, and, therefore, they had an urgent interest in finding out whether the individual lay judges who belonged to their field were used by the courts.
Q A fanal question about document 1061. Your letter to Lammers of 4 December 1941, about the extermination of remarks in the penal register. Your answer was not formulated quite clearly. I ask you to explain again what was the state, when the question, perhaps, was that the amnesty which allowed the persons concerned freedom from punishment should again be abolished or, that is to say, that the penalty was again to be imposed or revived or whether it was only that in tho files of the penalty wore the registration of the penalty had been eliminated, that the penalty was to be recorded again; whether it was merely a correction of the register, in other words?
A The latter suggestion is correct. There was no question about rescinding the effect of the amnesty, but it was only supposed to be made certain that from the files it would be advisable: this man has been previously punished because of treason.
DR. KUBUSCHOK: That concludes my redirect examination.
THE PRESIDENT: Will you remain just a moment.
BY THE PRESIDENT:
Q I overlooked one question. Dr. Schlegenberger, you explained quite fully with reference to the circumstances of your resignation. Would you venture a statement as to your conclusion; did you reign voluntarily?
A Yes, I quite conscientiously brought it to a break, and voluntarily resigned.
THE PRESIDENT: That is all, thank you.
MR. LAFOLLETTE: Your Honor, may I be permitted a redirect following these last two questions?
THE PRESIDENT: I think you have exhausted your privilege of cross examination.
The witness is excused.
(Thereupon the witness returned to the defendants dock.)
Call your next witness.
DR. KUBOSCHOK: I ask to have the witness Dr. Rosenau called.
Dr. Rosenau, a witness, took the stand and testified as follows:
BY JUDGE BLAIR:
Q Hold up your right hand, and repeat this oath after me:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth, and Till withhold and add nothing.
(The witness repeated the oath.)
JUDGE BLAIR: You may sit down REDIRECT EXAMINATION BY DR. KUBOSCH0K:
Q Witness, please state your last name and your first name.
A Dr. Rosenau, Wilhelm.
Q What profession do you have and what official position do you hold at the moment?
A I am a physician, and a specialist in Psychiatrics, and at the present time I am the official chief physician of the Health Office in Diez on Lahn.
Q Were you once also working in an insane asylum?
A I was a physician at the Bunzlau Mental institution and later on I was director of the Mental Institution Sein of the Reich Association of the Jews in Germany.
Q Please explain the significance of this last Asylum at Sein/ Rhine?
A The institution was first a large Jewish private sanatorium. In 1939 the Reich Association of Jews was ordered for all Jews in Germany who were insane or had nervous diseases, to establish an institution which would be able gradually to take all these Jews into one single institution. From a number of physicians who were considered to be in charge of this institution, I in the beginning of 1940, was put in charge of this institution.
Q Can one, therefore, say that during the time when you were in charge of this institution all Jews who had nervous diseases, from all of Germany, were concentrated in that institution?
AAs far as these Jews had to be accepted in a closed asylum, they had to be brought into our asylum; partly, myself, on trips I made the necessary expert statements in Jewish hospitals.
Q Witness, in the meaning of the Nurnberg Laws, are you, yourself, a full Jew?
A Yes.
Q Was the number of the inmates in the asylum very large?
AAt the beginning there were about 200, and in the end it had risen to considerably more than 400, and you have to consider that we have a large number of losses, dead people, and had also dismissed a large number of cured people.
Q Of the inmates of the institution, was sterilization carried out on them on the basis of law for the prevention of progeny of people inflicted with hereditary diseases?
A When I took over the institution, the then owners and directors of the institution, the brothers Jacobi, told me that the inmates of the institution, as all other German citizens, were subject to the hereditary health laws; that the necessary reports had to be made by the director of the institution; that the trials of the hereditary health court would take place in the hospital, itself. At the beginning this touched me in a very unpleasant way, especially to take part in the trials in the institution itself. However, they calmed me down, I was told that the trials were absolutely technical and conducted in a technical and decent manner.
Q Then, during your activities, did you have the experience that these trials were conducted actually fair and absolutely in accordance with the legal regulations?
A They were conducted absolutely fair and in accordance with the laws; and, in all doubtful cases, the court adopted an attitude, which went far beyond what I had expected, in doubtful cases in particular it was pointed out to us that we had the possibility to make a statement in favor of the defendant; for example, in all cases of Epilepsy if there were any kinds of doubt, even the slightest doubt existed whether it was a genuine Epilepsy or in all questionable cases of Schizophrenia.
Q Was this tendency of a fair and conscientious conduct of a trial in the hereditary health court, the same as the competent chief hereditary health court, the Erbgesundheits-Obergericht, the second instance held?
A With the second instance I experienced only a few sentences because most of our patients, if not they, themselves, their competent relatives were satisfied with the decisions.
A few of my many maniac depressive patients were relieved that the reproduction which they feared would now no longer be expected, therefore, only a few cases came up to the second instance. In the second authority the treatment was the same and perhaps even more cautious than in the first. I would like to remark that I can speak only about this hereditary and health court with whom I worked personally, and about which I got statements through direct contact with the doctors concerned.
Q During your entire practice of medicine, did you find out about any single case in which you had tho slightest impression that the hereditary health court of the first instance or the chief hereditary health court of the second instance; for political or racial reasons made its decisions?
A. I did not have such an experience. I also do not believe that this method would have been chosen for Jews if they were supposed -Hb have been harmed. The competent Party officers, the Gestapo and the Ortsgruppenleiter, the local group leaders, did that by much more direct methods.
G. On the basis of your position in this Jewish Institution, did other colleagues in other localities also tell you their experiences about the conduct of Herititary Court trials?
A. I worked together, closely, with the Jewish Asylum in Cologne and with the Frankfurt Hospital in the Daganstrasse. The physicians there never told me about complaints of that type. Most of those trials were conducted only when the patients had already been received in our institution because they had to be taken to a closed asylum.
Q. Witness, you are now Kreisarzt in Diez in charge of the health office there. As far as I know, the health offices keep the files of the trials conducted before the Hereditary Health Courts. Just a moment, now; after you took your position as Kreis Physician in Diez, did you see files of that type, and thus in another way find out something about the practice followed by the Hereditary Health Court in Limburg which is competent for the District of Diez?
A. I have such files with me. All files about hereditarily afflicted people have been carried on very carefully and kept. Every Hereditary Health Court has a carefully kept file system about this.
Q. From the files or by other methods, did you gain the impression that people who were close to the Party were favored in these Hereditary Health Trials?
A. Through pure accident such files of that kind about party members were submitted to me. A woman came to me and asked me for a certificate about the fact that her husband who had been in the SS had been sterilized by the Hereditary Health Court because he was feebleminded. Thus she wanted to have some evidence in favor of her husband in his trial. The files are here. From the files it is apparent, without doubt , that the SS started the trial before the Hereditary Health Court against a member of their own organization.