Q. Did anything change concerning that method of alternating being prosecutor and judge alternately?
A. After centralization of the administration of justice that was greatly reduced.
Q If I understood you correctly, then after the centralization of justice, it was hardly possible that a prosecutor would revert back to the office of judge.
A It was possible but....
Q Witness, you have to make a short pause between the question and the answer.
A It was possible but not at the same rate as before because such a large change in transferring of personnel as had been done in Bavaria before could not be done in the entire Reich now.
Q Could you tell us something, witness, as to whether the appointment of Dr. Barnickel as prosecutor of the District Court of Minich II for political reasons were decisive for or do you know nothing about that?
A I do not know at all that any political office wanted Barnickel as Senior Prosecutor. At any rate I don't remember anything about it.
Q Now one last group of questions, witness. Do you know anything about the fact that Dr. Barnickel in 1942 applied for the then vacant position of General Prosecutor in Munich?
A Yes. Barnickel came I believe, several times to see me in 1942 and also wrote letters to me. He made a rather depressed impression, and I had the impression that, under all circumstances, he wanted to get away from the Reich Prosecution at the People's Court. As far as I can remember, he was also prepared to accept a position at a lower income in Bavaria. As for the underlying reasons why Barnickel wanted to leave the Reich Prosecution at the People's Court, he never mentioned that to me. But it could not be done for merely technical reasons at first; and then there was no appropriate position vacant at that time.
Q Do you know anything as to whether that transfer was refused by Thierack at that time?
A I can not say, because I was not the referent for the Reich Prosecution of the People's Court.
Q Thank you. I have no further questions.
BY BR. SCHILF:
Q May it please the Tribunal, I have already an affidavit by Dr. Miethsam which is contained in my document book. I assume, however, that the Tribunal would rather have me examine the witness now on the contents of the affidavit which he has already given me.
THE PRESIDENT: Has the affidavit been already introduced in evidence?
DR. SCHILF: It has not yet been introduced officially in evidence, but it is already contained in my document book. I merely want to avoid that if I submit that affidavit as exhibit, the witness has again to be taken into cross-examination by the Prosecution; but since it is apparently getting too late today to carry on the direct examination, I'm quite willing to submit to the Prosecution the affidavit of the witness, and an arrangement can be made as to whether the witness Miethsam should be cross-examined tomorrow morning or at another date.
THE PRESIDENT: Gentlemen, you have four minutes before the film runs out in the electrical transcription; so we'll have to make this brief.
DR. WANDSCHNEIDER: Mr. President, I also want to clarify a question, I too, have an affidavit of Dro. Miethsam which I would like to submit with the document, and I would like to make sure that I can also examine the witness Miethsam. I would consider it without purpose if tomorrow when Dr. Schilf has the witness, here, I should conduct my examination of the witness Miethsam afterwards. I should like to do that together with my submission of evidence and ask for approval.
THE PRESIDENT: I should like to hear from the Prosecution next.
MR. LA FOLLETTE: If your Honor please, I think he ought to come at another time again. I already told Dr. Wandschneider that I didn't think he would need to cross-examine him today. Actually, I would prefer to see the affidavits. I may not desire to cross-examine the witness at all; in that event, he need not come.
THE PRESIDENT: The order excusing the witness is vacated. The witness will return to the court room at 9:30 tomorrow morning. Do you understand, Dr. Miethsam?
THE WITNESS: Yes, your Honor.
THE PRESIDENT: We will pass upon the matter at that time. We will now recess.
(The Tribunal adjourned until 8 July 47, at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Josef Alsteeter, et al, defendants, sitting at Nurnberg, Germany, on 8 July 1947, 0930-1630, Justice James T. Brand, presiding.
THE MARSHAL: All persons in the courtroom will please find their seats.
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: 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 has been excused.
THE PRESIDENT: The proper notation will be made.
Before we proceed further the Tribunal has considered a practical problem concerning the examination of witnesses for the Defense and the employment of affidavits. We are sure that Counsel for both sides have recognized, and do recognize that an affidavit is a very poor substitute for direct examination.
We have concluded that when a witness in physically present in court, and present in the course of the presentation of the Defendants cases, of the Defense, we will expect all Defendants who desire to examine that witness, by their attorneys, to do so in order that it will not be necessary to call the witness back to the witness stand in connection with the case of each separate defendant.
We have concluded that no other procedure is practicable. Unless, therefore, special circumstances are made to appear, Defense Counsel should not expect to introduce affidavits as a part of their defense from any witnesses whom they have had opportunity to directly examine in person in open court.
If affidavits were received after a witness had personally appeared, then it would be within the right of the Prosecution to bring back that witness who had already appeared for cross examination, and the evils which we are attempting to avoid would again appear. The result might be that one witness would be recalled half a dozen or a dozen times and it cannot be allowed.
Now, we fully recognize, gentlemen, the fact that the Defense Counsel, each of you, would prefer to present the case of your particular Defendant as a separate unit; and, we also understand that the Prosecution would prefer, if possible, to prepare the cross examination as to each separate defendant. But, we have concluded that it will not be practicable to do that.
Both sides are having the fullest opportunity which the law can give, when you have the chance to examine the witness in behalf of your client in open court.
The necessity for an expeditious trial requires us to in force this procedure, and you may rest assured that the Tribunal will allocate the testimony to the proper Defendant's case even though it may be presented in this manner.
The cross examination of Dr. Miethsam, is it concluded?
MR. WOOLEYHAN: The Prosecution concluded its cross examination of Dr. Miethsam's affidavit in the Schlegel berger document book but other Defense Counsel, I believe, desire to make the witness their own.
THE PRESIDENT: I cannot hear you.
MR. WOOLEYHAN: I believe that after the Prosecution finished their cross examination on Dr. Miethsam's affidavits in the Schlegelberger document book some of the Defense Counsel wish to make the witness their own.
THE PRESIDENT: Yes, they are at liberty to do so.
REDIRECT EXAMINATION BY DR SCHILF:
(for the defendant Klemm).
Dr. Miethsam has, on 6 June 1947, submitted an affidavit for my client Klemm, which is already in my document book; however, considering the decision of the Tribunal I shall not submit that affidavit, but with the permission of the Tribunal, I shall examine Dr. Miethsam now as a witness.
Q: Dr. Miethsam, in your affidavit of 29 January 1947, that was an affidavit for the Prosecution, you have already stated that during the period from 1 April 1935 until 15 April, you were in Department I of the Reich Ministry of Justice, and primarily concerned with personnel matters. May I ask you who was your last Department Chief in that Department of Division I?
A: The last Chief was Ministerialdirector Loetz.
Q: May I ask you where your Department I was located during the last years, after it was evacuated from Berlin?
A: From about the fall of 1943 until October 1944 in Leitmeritz on the Elbe, Bohemia; from October 1944 until about the middle of March 1945, in Prenzlau in Uckermark.
Q: Since you were immediately subordinate to Ministerialdirector Loetz, you probably can tell the Tribunal according to what principles Loetz conducted his personnel matters within the realm of the administration of justice?
A: Dr. Loetz tried, whenever possible, in filling positions to take care of the technical qualifications of the personnel.
Q: Was that position in conformity with the principles of Minister Thierack?
A: Mr. Thierack, of course, bounded as he was to the Party, tried to place individuals who had been recommended by the Party into leading positions. These individuals, of course, did not always have the technical requirements.
Q: Did these differences of attitude lead to apparent differences of opinion between Minister Thierack and Ministerialdirector Leetz?
A: I can only say that Director Leetz, when he returned from reporting to Minister Thierack was frequently imbittered, complained that he did not succeed with his suggestions, and that the Minister simply dictated to him what he was to do. I, myself, usually did not attend these reports.
Q: Did Dr. Leetz ever mention to you that he had rather violent differences of opinion with Thierack, and that a conflict arose between him and Thierack?
A: Those differences of opinion increased more and more. At any moment we expected that Director Leetz would be recalled or transferred. In fact, Thierack, as late as the month of March 1945, put Director Leetz at the disposal of the Armed Forces, although that was of no value any longer.
Q: Do you happen to know that Director Leetz, in the absence of Minister Thierack, also submitted personnel questions to the then Undersecretary Klemm?
A: Well, not only in his absence; the routine was such that the Ministerial Director, in general, had to submit suggestions first to the Undersecretary and then usually together with the Undersecretary, had to report to the Minister.
Q: Did Director Leetz mention to you whether he preferred to report to the Minister or rather to the Undersecretary?
A: Of course, Ministerial Director Leetz preferred to go to Undersecretary Klemm and report to him. Undersecretary Klemm had a calm disposition, much more humane than Thierack. With the latter one had to expect an outburst at any moment. It was much more possible to state objective points to Klemm. Thus, Director Leetz tried to submit matters to the Undersecretary first and obtain some decision from him when he knew that he might not succeed with the Minister, or at least encounter great difficulties.
Q: Did Director Leetz talk to you about his experiences to the effect that Klemm, apparently, in principle, was in sympathy with Leetz' attitude concerning personnel policy rather than with Thierack's attitude?
A: All I can say is that Undersecretary Klemm was much more amenable to technical, objective points of vies, and that he also supported that against the Minister. For example, the Minister had ordered that no higher official could be promoted who was unmarried. Ministerial Director Leetz fought against that continu ously, and he tried to explain to Undersecretary Klemm the lack of sense inherent in such a measure.
The latter was amenable to that and apparently tried to intervene with the Minister that the order should be rescinded. Also, quite apparently, he was not successful.
Q: Do you remember any cases where Klemm knowingly, consciously, put the points of view of Party politics into the background as against the point of view of the capability of an individual?
MR. WOOLEYNAN: Witness, one moment please.
Your Honor, I object to that question. It is asking the witness for his opinion as to the state of a man's mind and, for subjective reasons, why another person gave an opinion or did an action.
THE PRESIDENT: The objection is overruled.
BY DR. SCHILF:
Q: You may answer, witness.
A: I only remember one case in all that extended period. The problem was that at that time the position of a Senat President at the Reich Hereditary Farm Court had to be filled, and the right for nomination or appointment was with the Reich Ministry of Food and Agriculture.
Q: Excuse me for interrupting you, but can you tell us the date when that position became vacant?
A: It may have been the summer of 1944.
The Reich Ministry of Justice tried to place officials from the Administration of Justice in such positions. Alstoetter, who was in charge of the Department where, among other things, the law concerning hereditary estates was to be dealt with, intervened at that time concerning the appointment for that position.
Although he had nothing to do with personnel matters as such, he suggested, and supported the idea, that the then Senat President with the District Court of Appeals at Munich, Ehard, who is now Prime Minister of Bavaria, should be nominated for that position. He contacted the personnel department and asked for their evaluation of the capabilities of the individual in question. As far as we were concerned -- as Referent in charge of matters of the Hereditary Estate Court and Leetz -- we supported that and confirmed it.
However, it was pointed out to me that there might be difficulties because Ehard had been assistant prosecutor in the Hitler trial of 1924 -- and was in disfavor since that time with the National Socialists. Apart from that, he had been a member of the Bavarian People's Party before 1933, and was still not a member of the party.
I was no longer present during the subsequent reports to Undersecretary Klemm and the Minister; I was only informed, and I observed myself, that a letter was written by Klemm to the Undersecretary in the Party Chancellery -- Klopfer -- wherein he stated the intention of the Reich Ministry of Justice to recommend Ehard for the position of Senal President or to the Reich Hereditary Farm Court. He also personally recommended Ehard and asked, finally, what the point of view of the Party Chancellery was. As far as I know, the Party Chancellery answered that there was some objection against that gentleman because he was not a member of the Party and it would be better if the Ministry of Justice could find out whether there wasn't another candidate with the same qualifications.
Before the matter could be carried any further, the collapse occurred.
That is how these matters developed, if I remember correctly.
DR. SCHILF: I have no further questions, Your Honor.
DR. WANDSCHNEIDER (Counsel for the defendant Rothenberger): I ask to be permitted to examine the witness Dr. Miethsam. I also had intended to submit an affidavit by Dr. Miethsam.
BY DR. WANDSCHNEIDER:
Q: Dr. Miethsam, since when do you know Dr. Rothenberger?
A: Since about August 1942.
Q: That is to say, since the beginning of his career as Undersecretary in Berlin?
A: I have to make a correction. I cannot tell the date precisely, but once, during a conference of chief presidents in Berlin, I heard him make a speech, without making his personal acquaintance.
Q: Thank you.
Do you know of a case Ankenbrandt, which was concerned with a judge who was supposed to have been here in Nurnberg? Do you happen to know the case?
A: Yes, I know the case.
Q: Would you please describe that case to the Tribunal, such as you remember it?
A: The President of the District Court of Appeals in Nurnberg made a report to the Ministry of Justice that the Amtsgerichtsrat, (local court judge) Ankenbrandt, in Nurnberg, was excluded from the NSDAP by a preliminary decision of the Kreisgericht in Nurnberg, because, as a judge conducting investigations, he had examined a Jewish woman who had intended to emigrate to the United States -as a witness and under oath.
That information was received by the Ministry of Justice in about the summer of 1942. We submitted the matter to Undersecretary Rothenberger. He was highly indignant about that interference on the part of the Party, if I may say so, into the independence of the judge, and he instructed us immediately to lodge a protest with the Supreme Party Court, not only on account of Judge Ankenbrandt, but because of the principle in the matter.
Accordingly, we addressed a letter to the Supreme Party Court in which we pointed out that it was a purely official action on the part of the judge with which he was now charged by the Party. To my knowledge it was also emphasized that official action on the part of the judge was according to the law, and in addition it was especially criticized that the judge was charged by the Party court without having given an opportunity to his official superiors to state their opinion. As far as I know a short time later a letter was received from the Supreme Party Court. Altogether on the whole the point of view of the Ministry of Justice was approved of on the part of the Supreme Party Court. In order to prevent similar cases in the future, fundamental instructions were given to the subordinate party courts.
Q Was it one of these instructions that in case proceedings were intended against judges or higher officials that under all circumstances one had to see that the superior authorities of the state, that is to say first the authorities of the administration of justice should be informed in detail about the case?
A That was so, yes.
Q Can you still remember what the result was in detail, the actual result of that case against Judge Ankenbrandt? Did he remain or did he not remain in the Party?
AAs far as I remember, the decision of the Kreisgericht and later the Gau Court of Nuremberg was rescinded, but I could not state that with absolute certainty.
Q You said, Dr. Miethsam, the witness had been expelled from the Party. What would have been the consequences of such an expulsion from the Party for a judge?
A The fact of being expelled from the Party did not have immediate consequences. That is by force of law, for instance, that he would have lost his position in the administration of the state. At any rate, however, as far as I remember there was a provision that the Party Chancellery then in such cases could request of the supreme official authority the initiation of disciplinary proceedings.
Q Was it in fact so that in all cases where an official was expelled from the Party disciplinary proceedings against that man were an absolute result, a certain consequence?
A That depended on the merits of the individual case.
Q Thank you. Dr. Miethsam, can you inform us as to how Dr. Rothenberger behaved when in the beginning of his term in office an attempt was made to influence the lower judges' positions?
A I remember the following from my sphere of work. I had received in my office several letters from the Party chancellery where requests were made for the filling of lower positions, such as Amtsgerichtsrat positions or positions as prosecutors. Under-secretary Rothenberger had ordered that these cases be submitted to him. In the course of that report Rothenberger seemed to be very astonished; even indignant that the party interfered in the appointments for such minor positions and ordered me to submit the total file to him with a compilation. He stated that he wanted to try to stop these things.
Q Thank you. Dr. Miethsam, can you tell me quite in general whether Dr. Rothenberger listened to criticism in party matters, whether he accepted criticism of people of the Party and whether he criticized himself.
A In case of official reports within a small circle, of course one became a little more intimate and here and there there was some rather severe criticism voiced about the one or the other measure of the Party, on the one hand by the Referent or if the adjutant of Undersecretary Rothenberger was present, by the adjutant. Undersecretary Rothenberger did not object to that. In his rather impulsive manner he sometimes participated in it.
DR. WANDSCHNEIDER: Thank you. I have no further questions.
BY DR. SCHUBERT (For the Defendant Oeschey):
Q Dr. Miethsam, if I understand you correctly you were personnel referent for the Bavarian judges and prosecutors since 1938.
A Yes. Before that I was a temporary employee.
Q From that time on you also were concerned with the personnel matters of the defendant Oeschey?
A Yes.
Q Dr. Miethsam, Oeschey on 1 October 1939 was transferred from Aschaffenburg to Nuremberg. Do you happen to know whether that transfer was done upon the intervention of political offices?
A I do not have any accurate recollection of that. I have to admit that there was a possibility. I only know that his promotion to the position of Langerichtsdirektor, director of the District Court, took place on account of the intervention of the Party Chancellory.
Q Dr. Miethsan, by that transfer to Nuremberg, did that entail a promotion?
A No, it was the same rank and the same pay.
Q According to your observation were Party offices ever interested in the question of transfers?
A You mean generally?
Q Yes.
A Yes, because there was a difference, of course, between a good place and a bad place.
DR. SCHUBERT: I have no further questions.
BY DR. ORTH (For the defendant Altstoetter):
A Witness, from 1935 until 1945 you were in the Reich Ministry of Justice as a higher official in Berlin. Would you please tell us whether a higher official of that ministry had to know about the crimes committed by the SS or the Gestapo or in the concentration camps?
A Of the crimes about which we know today an official at any rate in the personnel department where I was knew as much or as little as any other German.
Q You know Mr. Altstoetter?
A Yes.
Q What was the main reason for his being transferred into the Reichministry of Justice?
A On the whole I am not informed about that. Minister Thierack took care of that. He had the reputation of an excellent official with great knowledge in his field.
Q Witness, before you mentioned a suggestion by Altstoetter to have the present Prime Minister Ehard appointed Senate President of the Erbhofsgericht Hereditary Farm Court. Did Altstoetter himself initiate that recommendation?
A I believe that it was on his initiative.
Q Did he push the support for Ehard with great energy, even after he started to encounter difficulties?
A I was frequently informed by our chief director Leetz that Altstoetter time and again brought up the suggestion concerning Ehard and did not tire of doing so.
Q I have one last question. Is it known to you that at that time the intention existed to make that hereditary form court absolutely independent?
A No, I do not know anything about that.
DR. ORTH: Thank you.
THE PRESIDENT: Has any other counsel for any other defendant the desire to examine this witness as his own? (No replies) You may cross examine.
CROSS EXAMINATION BY MR. WOLLEYHAN:
Q: Dr. Miethsam, I have one question I'd like to ask you. In response to a question put to you by counsel for the defendant Alstoetter, with regard to knowledge of concentration camps by the defendant Alstoetter, you answered that there of course was no knowledge of such matters in the Ministry of Justice. Dr. Miethsam, how do you know what the defendant Alstoetter felt or knew about anything except in your field of promotions, transfers, and other personnel matters?
A: May I first say I believe that I said that in my department, on the basis of events which came to the knowledge of the individual Referent, that the individual did not hear more or less about the atrocities, as we know them today, than any other German. At least I intended to say that. I did not intend to say that Alstoetter, perhaps on the basis of a special knowledge, knew more about it.
Q: That is all.
THE PRESIDENT: The witness is excused.
(Witness excused)
HERBERT KLEMM, resumed the stand and testified further as follows:
DIRECT EXAMINATION - Continued by dr.
schilf;
Q: With the permission of the Tribunal, I continue the examination of the defendant Klemm as witness in his own case.
Mr. Klemm, yesterday we had reached your description about your work as SA Liaison Fuehrer with the Reich Ministry of Justice. You had mentioned Exhibit 438, that is NG-938, Volume I Supplement. Now I ask you whether you would like to add anything to this matter or whether you have finished dealing with it.
A: I believe that I dealt with that matter quite exhaustively.
Q: I ask you to give the Tribunal further examples about your activity as Liaison Fuehrer. I may say that it is a coincidence, but when you were questioned we just stopped at that point where the witness Hecker mentioned a matter referring to the then Regierungsdirector Schaefer at the camp of Papenburg. Will you first please tell us what you know about this case?
A: I do not intend to repeat the facts as such because they have been described by the witness Hecker yesterday. I only refer again to that case in order to show how extremely difficult it was to take care of the interests of the State as confronted with the interests of the Party. In this case, the main difficulty was that Schaefer, as an official, had done things or not done things in his capacity as an official of the State which were to the advantage of the SA men. Therefore from the point of view of the SA, there was absolutely no reason to intervene against Schaefer. But particularly from my work in Saxony as legal consultant to the SA and there again particularly in the case Hohenstein, where it was tremendously difficult to drop these SA men because there were men among them who for many years before Hitler became Reich Chancellor had been SA men, for in that case I had seen that with tenacity and by pointing out the major points of view, one could achieve something.