AFTERNOON SESSION (The Tribunal reconvened at 1330 hours, 22 July 1947)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Just a moment before you proceed, please.
By the unanimous agreement of the Tribunal, the following order has been made this 22nd day of July, 1947. It has been signed and in the possession of the Secretary General. For the purposes of the record, I will read it:
"MILITARY TRIBUNAL III Case No. 3 THE UNITED STATES OF AMERICA vs JOSEF ALSTOTTER, et al ********************** ORDER DIRECTED TO DR. HANS MARX AND TO MRS. KARIN HUPPERTZ AND EACH OF THEM TO APPEAR TO SHOW CAUSE WHY THEY SHOULD NOT BE PUNISHED FOR CONTEMPT "Comes now, CHARLES M. LaFOLLETTE, Deputy Chief of Counsel, Office of Chief of Counsel for War Crimes, in charge of the Prosecution of the above entitled cause, for an on behalf of the UNITED STATES OF AMERICA, and presents to the Court his duly verified petition for an order of this Court directing DR. HANS MARX, an attorney of record of this Court, and MRS. KARIN HUPPERTZ, who presently resides at Mullnerstrasse 30, c/o Mederer, Nurnberg, and each of them, to appear and show cause why they should not be punish d for concept of this Court; and "Comes also, Alfred WOOLEYHAN, attorney in the Office of Chief of Counsel for War Crimes, associate counsel in the Prosecution of the above entitled cause for and on behalf of the UNITED STATES OF AMERICA and presents to the Court his duly verified supplemented and amended petition for an order of this Court directing DR. HANS MARX to appear and show cause why he should not be punished for contempt of this Court; and "The Court having examined said duly verified petitions together with the exhibits which are respectively attached to and made a part of each of them and being in all things duly advised in the premises, finds:
"That the said duly verified petitions are in proper form and that based upon the allegations therein contained a citation should issue:
"It is therefore adjudged and ordered by the Tribunal that Dr. Hans Marx, an attorney of record of this Court, and Mys. Karin Hupperts, and each of them, shall file their separate written answers to the charges contained in the petition and supplemental and amended petition on file herein, and by said written answers shall show cause, if any they have, why they should not be punished for contempt of this Tribunal. Said answers shall be filed with the Secretary General on or before Friday, July 25, 1947, at 12 o'clock noon;
"And it is further adjudged and ordered by the Court that a copy of this order in the German language, and a copy of this order in the English language, and a copy of each of the aforesaid petitions in the German language and a copy in the English language, shall be served upon the aforesaid Dr. Hans Marx and Mrs. Karin Huppertz and each of them, in open court, or by the Marshal of this Court, and that service thereof shall constitute good and sufficient notice of this order, now made and entered by this Court at Nurnberg on the 22nd day of July, 1947."
Signed: "Military Tribunal III enbanc, by James T. Brand, Presiding Judge."
A word of explanation, because the procedure in matters of this kind may not be wholly familiar to Dr. Marx or his representatives, is in order.
This order, as appears upon its face, directs that the issues should be made up by an answer. The answer which is to be served and delivered to the Secretary General may admit, deny, or explain the charges in the petition for contempt proceedings. If, when the answer has been filed by the two persons named, issues arise such as a denial of the charges in the petitions, then and in that event the Tribunal will set a time for hearing in open court of the issues which are made up by the allegations of the petition and the answers of the respective persons. The trial of the issues as made up, if a trial is required, will be in open court.
If Dr. Marx has retained any of his associates as counsel for him, the Tribunal would welcome information concerning that matter.
You may proceed now.
DR. WANDSCHNEIDER: May I continue, please -
THE PRESIDENT: May I add one word? I think counsel will find that all of the requisite papers are included in the order which is to be served, and that the Secretary General also will have the originals of all of the papers involved in the case.
WALTER STEINACKER (Resumed) DIRECT EXAMINATION (Continued) BY DR. WANDSCHNEIDER:
Q. Witness, before the recess I asked you to list some concrete examples of the manner in which Dr. Rothenberger, in the meetings of the presidents of the district courts of appeal, testified as to his attitude towards the Administration of Justice, and his fight.
A. I remember three cases particularly vividly, in which Dr. Rothenberger distinguished himself through his attitude, which I described before the recess. The first time this happened was in 1939, before the outbreak of the war when, on the occasion of a meeting of the presidents of the district courts of appeal, Dr. Rothenberger delivered a lecture about attacks which the SS newspaper, Das Schwarze Korps, had made against German judges, This had been preceded by a large number of very serious attacks in several articles in that newspaper, which later on were proven to be entirely without foundation and untenable.
In this lecture, Dr. Rothenberger, in my opinion, in an excellent manner and in very well formulated thoughts, expressed the opinion that the Ministry absolutely had to take steps against such actions, it had to correct such unfounded attacks, and had to see to it that in the future such attacks would no longer be made.
I personally liked this lecture particularly and therefore, perhaps, I remember it especially. Later I told Rothenberger that the speech was excellent, that I liked it very much. He was pleased about that and said, "Did you like it?" And I said, "Yes, it was excellent; you really brought matters up for discussion which had to be said." That is how it was, and I guess it is the same everywhere. In the Ministries one did not hear quite so open and well-phrased speeches very frequently.
Q. What happened, witness, on the part of the Ministry after that?
A. As far as I know nothing happened at the time, and already at that meeting I noticed that the Ministry did not respect that lecture as much or praise the lecture as much as it deserved to be praised, and I missed that and was somewhat disturbed that nothing happened. Apparently nothing happened at the time. I also remember another case which did not lack a certain dramatic climax. This was at a later meeting during the war. I don't remember for sure whether it was in '41 or '42. I was still president of the District Court of Appeals in Breslau, so it must have been before the first of January 1943. In the so-called "House of the Fliers", that was the former Prussian House of Representatives, we had a meeting and we discussed different problems. I can't remember for sure what they were. In any case, the lectures which were delivered there were concluded and there was a short breathing spell without having the meeting closed. Suddenly Dr. Rothenberger, who was sitting among the presidents of the District Courts of Appeal at the table, which as in the form of a horseshoe, jumped up and said, as far as I remember, not without excitement, he requested permission to direct the attention of the Ministry to the cares and worries of the judges and the needs of the Administration of Justice. He was just able to finish the sentence when the presiding undersecretary, Dr. Freisler, jumped up and yelled at Dr. Rothenberger, whom he otherwise, as I said, always treated in the most careful and polite manner, yelled at him very violently and cried "Dr. Rothenberger," or something like that,"If the administration of Justice doesn't suit you, then take your top hat." His statements were not concluded yet. He spoke for another few minutes and the contents of those statements were, in a certain sense, a commentary to this drastic remark and this harangue directed at Dr. Rothenberger, and in a certain sense charged opposition against the attitude of the Ministry, which he apparently feared, and the independence of the administration of Justice. He not only suggested to Dr. Rothenberger to take his top hat, but added that other people could take an example from this.
If they didn't like the Ministry of Justice, the Ministry of Justice could do without them.
Q. Thank you. Can you remember another case of a remark which took place after the Hitler speech?
A. Yes.
Q. Will you please say something about this?
A. On the 26th of April, that was probably 1942, when Hitler delivered that speech, which unfortunately became very famous, or one might say "infamous" the speech against the Administration of Justice, which had an absolutely depressing effect on all well-meaning judges, and there were many of those. The contents of this speech are well known. I can't state any details. I only know that many a judge in Silesia at that time approached me and told me that it embarrassed him to continue to work as a judge, because now this was the end. At any moment we would have to fear being arrested from the Judges' bench. Now this speech had been delivered and this excitement which prevailed among the broad masses of judges existed also among their top judges, that is the presidents of the District Courts of Appeals and it had an embarrassing effect -- I must say that. When now in a meeting which came very soon, if I am not mistaken, after this Hitler speech it happened that Dr. Rothenberger rose and requested that a discussion should be admitted about this speech in order to clarify the situation which had been created within the Administration of Justice through the speech and in order that the danger which was inherent in the speech, and actually it involved a danger to life to discuss it -and to limit the effects that it would has in the districts of the District Courts of Appeals -- unfortunately this request was rejected by the Ministry.
Q. Witness, can you testify with certainty that Dr. Rothenberger emphasized especially the danger of this speech of April 1942 and the endangering of the independence of the Administration of Justice and the jeopardizing of the independent judiciary and wanted to make this the basis of a discussion and expressed his serious misgivings?
A. I believe with certainty that I can say that and testify to that, because the danger to life, the fundamental danger, was in the air, and it was quite clear to all of us, and especially to him, and in the manner of speaking which he was entitled to as President of a District Court of Appeals toward the Ministry and in the presence of his superiors, of whom one never knew to what extent they would report what he had said to higher offices, and this might have very unpleasant results -- In their presence he said clearly that he considered that discussion essential in order to insure the independence of the judiciary which had been endangered by that speech.
Q. Witness, in this trial defendants and witnesses frequently discussed the reform program of Dr. Rothenberger at length, and therefore, I shall not ask you about it any more. I only want to address this one question to you, in the public, especially among the judiciary, how you welcomed the fact that Dr. Rothenberger became Undersecretary in view of this reform?
A. In contrast to Thierack, who was not known among the judges as a whole, Dr. Rothenberger was well known for a long time, and his suggestions for reform which were in accordance with older suggestions for reform, for example, of the Prussian Undersecretary Nuegel, of the Reich Minister of Justice Dr. Eugen Schiffer, also of the Prussian Judges' Association, these suggestions for reform were known to the judges, and, let us say in their general purpose that it was their aim through a strengthening of the personality of the judge to bring about a strengthening of the Administration of Justice, for example through material improvement in their salary and decreasing the number of judges, etc., emphasizing the personality of the judge, and taking them out of the civil service as a while and making them alone competent for the independence and the Administration of Justice.
Q. Thank you. One final question, witness. You know Dr. Rothenberger well, and I suppose you also knew Reich Minister Dr. Thierack?
A. Yes.
Q. Would you make some brief statements about these two personalities in their relationship to each other and as to their character as such?
A. I knew Dr. Thierack already before he became Minister of Justice. I can't say that I knew him well. I only spoke to him occasionally, but I had formed a picture of him in my mind. Dr. Rothenberger I knew already for a longer time as I have already stated. If I may say so, I attack some importance to physiognomy, and when I saw --
THE PRESIDENT: We will not go into physiognomy, gentlemen. We will be examining the stars next, if we do.
DR. WANDSCHNEIUER: Witness, we shall speak now not about physiognomy.
THE WITNESS: I beg your pardon, Your Honor. Perhaps I did not express myself clearly enough. But from the first sight it was obvious to me how different --
THE PRESIDENT: Witness, now the question which you are permitted to answer relates to the character of Thierack as you knew him before he became Minister of Justice. Go ahead and tell what you know about his character at that time.
THE WITNESS: Yes, Your Honor. I consider -- or rather, I considered Dr. Thierack to be a very clever, brutal, unscrupulous man, while I considered Rothenberger as a decent character. I was sure about the following: Rothenberger was mentally superior to Thierack. However, as to cleverness and maliciousness and unscrupulousness he was not his equal, so that he always, Thierack always had to be the winner. This became very clear to me soon since I had an opportunity to observe their actions in the judiciary and otherwise.
BY DR. WANDSCHNEIDER:
Q. On the basis of these different characteristics of the two men were you of the opinion that the separation of these two men was necessary because of their two characters, and do you know anything about the reasons for the dismissal, any details about it?
A. I know something about the reason for his dismissal. As I said, it was clear to me that sooner or later unless Dr. Rothenberger would be favored by some exceptional luck, his downfall would have to come about. This was caused by Thierack's personality, who in spite of especially emphasized harmony between them, could not hide the fact that he did not like this man, end the reason for the dismissal, which unfortunately Dr. Rothenberger offered to Thierack, and later he was probably very happy to have.
Q You mean this matter of the book?
A Yes.
Q We already talked about that, so we don't have to ask any further questions. I have concluded my examination.
BY DR.GRUBE (for the defendant Lautz):
Q I ask permission to address a few questions to the witness. Witness, since when do you know the defendant Lautz?
A I know Herr Lautz since the time when we both together were senior public prosecutors at the District Court I in Berlin. I was in that position from 1930 to '33, and Lautz from '32 on. At that time we wore colleagues. I think we both liked each other rather well, and officially and personally had very good contact with each other.
Q Did you speak to Lautz in later years too?
AAfter my appointment as General Public Prosecutor in Hamm and later on until 1944 when I was no longer in Berlin, I saw Lautz only on the occasion of meetings of presidents of courts in Berlin. Whenever I saw him I never missed the opportunity to sit down with him at a table and discuss matters with him. Therefore I followed his career constantly.
Q What impression did you have of him as a human being and personality?
A Lautz is without doubt a good and decent person, and I would not consider him capable of doing anything indecent. As far as I can say, he has a fine character and an honest attitude, as far as I can say anything about it, he never tried to hide this. I know that anybody who knows him would not judge him differently.
Q May I ask you what reputation Lautz had as a jurist and prosecutor?
AAs his appointment to Berlin showed, he was a very able prosecutor. In the course of time while he was working in Berlin -- we were also both working together -- he had an excellent reputation as an excellent jurist.
Q Witness, in 1936, as is well-known, Lautz became General Public Prosecutor in Berlin. In 1937 he became General Public Prosecutor in Karlsruhe, and in 1939, Oberreichsanwalt at the People's Court. Was this career regarded in your circles as unusual or something incomprehensible?
A I can assure you that this is not the case, and this can already be seen from the statements I have already made. Lautz generally had the reputation of a very excellent personality and an excellent jurist, and in the position which he had in Berlin, which was especially difficult, where he had to prove himself not only once but three times a day, this enabled him without doubt to occupy higher positions. So nobody was surprised when he was promoted further.
Q Did you ever hear that Lautz had to thank Party political reasons for his successful career?
A I never heard that, and I don't imagine that either, because as far as I know, before 1933 Lautz was not close to Party circles at all and had nothing to do with the Party.
Q Did Lautz have a reputation of being a Party man?
A Everything but that. As far as the Party is concerned, Lautz was an absolutely unknown personality. As I have stated, actually this repeats what I have already stated, that in view of his personality this was out of the question, and otherwise outwardly he didn't do anything in order to get a reputation of being a Party man.
Q Witness, do you know Lautz' political attitude?
A The political opinion?
Q Witness, I mean, in order to make it clear, what was his attitude in political trials?
A Yes. At the time when I was working together with him I could observe that already, and I know that in all political cases he adhered strictly to the law and did his work without considering political consequences. An far as I heard, he did not act any different in later years either.
Q Did Lautz express his ideas about the problem of the constitutional state "Rechtsstaat" in such questions?
AAs I stated, I frequently spoke with Lautz and of course we also discussed, as always in such cases, the pains which we all had. On the whole, this was always the same: The independence of the Administration of Justice, the interference into the judiciary which could always be everywhere observed, and which he knew as well as I. Every time he expressed unequivocably that he had to complain bitterly and that he adhered to the legal basis. Both of us occasionally when we heard of cases where this way was deviated from, we both complained about this.
Q You did not find out whether Lautz made differences in his case as to whether an indictment should be filed, differences according to Party membership?
A Formerly, when I could observe him personally, he certainly did not do that. At that time too, before 1933, there were political factors too. He always acted unerringly as the law ordered him to do, and he did not leave that course in later years either. I always heard that from people who ever had anything to do with Lautz. They said that he was an absolutely honorable man who adhered to the basis of law and did not act any differently.
Q Witness, do you know that Lautz was the subject of attacks by Party circles, particularly because of that attitude?
A I only heard about that. I cannot testify positively as to that. I only heard that he did not shy away from attacks of the Party of he considered it necessary to proceed in a judicial manner against defendants.
Q Do you know that Lautz proceeded against SA and SS people because they had not behaved properly in Berlin, in the Columbia House?
A Yes, that is one of those cases which I was probably told at that time. I know that I was told at the time that at the Columbia House in Berlin abuses of Jews had occurred and that he had energetically taken some steps without considering the membership of the defendants in the SA or the SS.
Q Witness, you have already stated before that since 1936 you were President of the District Court of Appeals in Breslau.
A Yes.
Q Is it correct that at this District Court of Appeals in Breslau there were two so-called high treason senates, and is it correct that in these senates in Breslau, the competence for cases which by the Reich Prosecution at the People's Court were considered as so-called cases of lesser importance and were therefore handed over to these senates for high treason?
A Yes, and these senates were very busy. This can be seen already from the unusual fact that there were two high treason senates, although the District Court of Appeals in Breslau was competent only for Silesia.
Q And you said already that so-called cases of lesser importance were handed over to those senates?
A It must have been a large number of cases. As you know, as President of the District Court of Appeals, I am not concerned with the conduct of trials but I had the supervision and I remember that these cases were very busy, and therefore a large number of cases must have been handed over by the Oberreichsanwalt as being of lesser importance.
Q Did these two high treason senates have the reputation of pronouncing severe sentences?
A I really cannot say so, no. On the contrary, these criminal senates, as I was once told -- express is verbis -in the Ministry, they had the reputation of judging too leniently. But from time to time I received written orders -- commissions -- from the Ministry in which I was instructed to tell the presiding judge of this or that criminal senate, that in the opinion of the Minister their sentences were too lenient and not severe enough.
Q Witness, do you know of a case in which the defendant Lautz complained about a sentence of one of these senates and asked for a cancellation of this sentence because it was too lenient?
A I don't know that. In my opinion as President of the District Court of Appeals, Lautz never attacked a sentence of a penal senate in Breslau.
Q May I in conclusion ask you, did Lautz have the reputation of extreme severity?
A I believe that I can say with absolute clarity and definitely that Lautz not only did not have a reputation of extreme severity but that he had the reputation of being just noble and decent.
THE PRESIDENT: Do counsel of any other defendants desire to examine the witness?
You may cross examine on behalf of the prosecution.
CROSS EXAMINATION BY MR. KING:
Q Now, witness, perhaps it was an oversight on my part, but I did not got your present address. Would you mind giving me that now?
A Yes. Celle near Hannover. Hannoverschestrasse 56.
Q Are you at the present time employed, and if so, where?
A I am not employed at present.
Q Do you have any objection against telling us why that may be true? If it's personal reasons, you don't have to, but I am rather midly curious as to why you are not employed at the moment.
A. I assume that I am not employed because in the past I occupied high official positions, and, moreover, I was a party member and SA Oberfuehrer as I have already stated. I was not told anything in that respect and formally I was not removed from office either. Formally.
Q. In other words, because of your party connections -- that is the essence of your answer.
A. Yes.
Q. Now, you said that you first came to know Dr. Rothenberger in 1933; that you got to know him better in 1936; and you have known him throughout for the past fifteen -- fourteen of fifteen years, more or less; is that right?
A. Yes; it is; yes.
Q. Is it your opinion, Mr. Steinacker, that any one who holds public office should observe the law as best he can while he is holding public office?
A. If I understood you correctly -- it wasn't quite clear.
Q. I will clarify it before you answer. Is it your opinion that any one who holds public office should while ho is holding public office observe the law as he knows it to be?
A. Certainly.
Q. And what would you think of a public official who didn't observe the law as he knew it to be while he was holding public office?
A. These are questions which, of course, -
DR. WANDSCHNEIDER: I object to that question. This question was not touched upon in the direct examination at all.
THE PRESIDENT: For other reasons we think the objection should be sustained. We are not directly concerned with what this witness night think of a person who in public office failed to follow the law. We have our own opinion on that.
MR. KING: Your Honor -- all right.
THE PRESIDENT: Go ahead with your next question.
BY MR. KING:
Q. Mr. Steinacker, your position in the party was that of Obersturmbannfuehrer, was it not -- SA Obersturmbannfuehrer?
A. Oberfuehrer.
Q. Oberfuehrer. You said earlier that that was an honorary position. What did you mean by that?
A. I did no service, not even for an hour in the SA. In 1933, in October of that year, I became Sturmbannfuehrer without having hold any lower rank. I was accepted into the SA and then gradually -without anything having happened on my doing, anything, I was promoted to Oberfuehrer.
Q. Now, as Oberfuehrer, were you entitled to any of the privileges of that position -- such as uniform privileges?
A. This uniform I had to wear, for example as president of the courts, at the express order of Hitler, since he had ordered that all party members who had a higher rank than Kreisleiter, and Standartenfuehrer, that all these officials when they appeared officially, in their civil positions too, had to wear that party uniform, and not the uniform of a civil servant which otherwise they were entitled to wear.
Q. I take it from your answer then that you were a SA uniform whenever you appeared in public.
A. When I appeared officially I did not do that always either, but only when the nature of the occasion required it and when I could expect that the civilian officials who were allowed to wear civilian uniforms would appear in uniform, then I put on that uniform.
Q. Did you serve as a party speaker in the early days of the -I mean from 1933 on -- in connection with your other duties, or, in addition to your other duties I should say.
A. No.
Q. You frequently used to address party meetings, did you not, for instance in Hamm in 1933; you do recall some Nazi party members that you addressed, did you not, while you were in Hamm?
A. I cannot recall, but it may have been -- sometimes -- it is a long time since I spoke in party meetings in Hamm.
DR. WANDSCHNEIDER: The question has been answered.
MR. KING: But as part of your early affiliations, or your affiliations with the party after 1933, you were a so-called Gap speaker, were you not?
A. No. I never was a Gau speaker.
Q. What office -
A. A Gau speaker was an activity which was carried out on the basis of a special authorization. I was never a party speaker or a Gau speaker.
Q. Were you a party speaker -- so-called party speaker?
A. Party speaker -- I can't say that either because that was not an occupation which I carried on permanently or regularly. It could, merely, if you say I once spoke in Hamm, which you probably know, and I can't recall it, it merely could have happened that in a small town that the Ortsgruppenleiter or the Kreisloiter, the local group leader, or the Kreisleiter said to me a favor; tomorrow we have a meeting; would you please say a few words; that may be, but a Gau or party speaker I was not.
Q. What position were you holding in 1933 when the Nazis seized power?
A. I was senior public prosecutor at the district court I in Berlin.
Q. Now, prior to that time, it is true -- one moment please -prior to that time it is true, is it not, that no officials of the government were allowed, by law, to be members of the Nazi Party; is that right?
A. I recall that it was forebidden to civil servants to belong to the NSDAP, that is the Nazi Party. However, I did not consider this prohibition as one having legal force, because in a democratic state every citizen is permitted to belong to a party which exists within the law.
For example, if one of my friends said to me -- be careful, you can't belong to the party -- I answered I did not have to fear anything; that I would fight it through before any court because I was permitted to belong to a party; because, I had never done anything wrong at that time or later. Therefore, I considered it my right to belong to the party, even though it was not permitted.
Q. You kept that fact as secret as possible, didn't you?
A. I didn't understand.
Q. You didn't let the fact that you were a party member become generally known, did you, in 1933 before the rise to power?
A. No, I didn't do that. I never heard of any one voluntarily putting his head under the knife -- because I couldn't know what would become of me -- what would happen to me because even at that time matters were not so that I could be sure of this right -- which was my right that I could have insisted upon. Even at that time it happened that persons couldn't do things which they were entitled to do, and because I had a family and wife and children, I didn't call from the roof top I am a member of the party.
Q. In other words, it was a recognized right which you exercised secretly.
A. I did not exercise it secretly; I only didn't speak about it very much, but I did not make a secret of it intentionally, and if anybody in the office, for example, my superior had asked me I would have said yes; but as for persons who business it wasn't, I wouldn't have told them.
Q. It was against the law, as you knew the law to be, was it not?
A. Against the formal law.
Q. What other kind of law is there that you are talking about?
A. Moreover, if I may make a remark --
Q. Go ahead
A. I no longer know today, for sure, whether a formal law existed which forebade this. I only remember that it was not desired that one should belong to the party, and that there might be unpleasantness if one did belong to the party; that I do know.
Q. I would like to refresh your recollection. Are you familiar with the book known as the Fuehrer Lexikon?
A. Yes.
Q. Would you mind telling the Tribunal what the Fuehrer Lexikon is? -- Since you are familiar with it.
A. The Fuehrer Lexikon is a collection of brief personal data, usually with a picture, of who in the meaning and opinion of the editor was an outstanding personality during Hitler's regime. I believe in 1936 -- 1934-1935 it appeared. Yes, it must have been 1933-1934-1935 that it was published, because I am listed in it as a general public prosecutor --- I know that.
Q. And the information which is carried about you in the Fuehrer Lexikon, you, yourself supplied?
A. Yes, I believe I did -
Q. Yes. -
A. Myself.
Q. I know you did.