This was necessary already because many an event had occurred which should not have happened but I shall make some statements about that later. Therefore, decisive importance was attached to having the judge, the investigating judge, examine the defendant so that the defendant could tell the judge before the indictment was filed everything that he had on his mind.
Q What did you yourself do when defense counsel or friends and relatives of a defendant pointed out to you that important material in favor of the defendant was available?
A Of course, I immediately saw to it that everything was done and that this evidence should be submitted.
Q Can you cite some examples from your practical experiences for this? May I remind you of the Najork case?
A Yes, I can give you some examples. I am forced if I should describe that case correctly to go into detail, but since it illustrates the conditions which I have already discussed and shall discuss further, perhaps it is quite instructive that I shall discuss it at some length. Najork, a director of the Hanomag in Hanover had a son about twenty years old. This twenty year old son had been a soldier and because of a serious lung disease he had left the Wehrmacht about 1941. At first he was in Switzerland for half a year for recuperation and later he was sent to Bad Karlsbad for convalescence. On the promenade there he met a young lady. He apparently also established a closer relationship with her. This young lady then suddenly asserted to the Gestapo in Karlsbad that this young Najork had in the most serious manner made remarks against the Government and Hitler. If the assertion had been correct there would have been no doubt he would have received a very severe penalty on the basis of these assertions of the girl. The young man was arrested and the files were submitted to the Reich Public Prosecution by the local Senior Public Prosecutor. This must have been about the fall of 1943. In any case, shortly thereafter the father of this young man appeared in my office. I did not know him at all and I would like to state here that a gentlemen from Berlin whom I knew had told me that the father would visit me. The old gentleman was apparently upset and he feared that the life of his son would be seriously endangered if the arrest should continue for a length of time and he requested me to help him. I told him I would help him. I had the file submitted to me and took them home. When I read the files I noticed immediately that the files did not begin with the denunciation as is usual but with the trans cript of an interrogation of the young girl and in this the statements that I have just described that she made were written down.
Then the young man was interrogated and he denied it. Between the lines of his interrogation, however, one could read that apparently he wanted to show that his relations with the young lady were broken and that, therefore, the denunciations against him had been made because of her hatred. The fact that there was no denunciation in the file and that it began with an interrogation caused me to think that she might have been an agent. Therefore, I instructed one of my public prosecutors to whom I gave the letter for that purpose, to go to Karlsbad immediately to interrogate the young lady again and to interrogate her personally. The embarrassing situation arose for the Gestapo that she was an employee of the Gestapo who had intimate relations with the young man and because he had broken off with her, she obviously said more than she could assume responsibility for. At that moment her statements were completely without value for me and I ordered that the proceedings be quashed but the RSHA was not satisfied at all with my decision. Finally, however, it was satisfied, because I pointed out that these occurrences could be very unpleasant for the Gestapo in Karlsbad if they were to be discussed in an open public trial and if the presiding judge or the defense through corresponding questions to the defendant, would come to discuss the situation. This was decisive and the young Najork was sent to a sanitorium in the Black Forest for convalescence.
Q Witness, another case is the case of Minister Borngesser. Will you please describe it briefly?
A I can be very brief in regard to this question. Borngesser was a clergyman in my home town of Wiesbaden. However, I did not know him at all. He was charged that when he went to visit sick people in several cases he made very derogatory remarks about the government and the conduct of the war. Since during the time in question I happened to be in Wiesbaden for a funeral and the superior in office of the clergyman Borngesser had found out about it, the superior, therefore, later asked me for a discussion and to call on me and I permitted him to do so. The superior told me that Borngesser was being charged unjustly because the witnesses were unreliable persons.
He requested me to see to it that the witnesses were checked. I immediately let this be done and it was true in part. The Gestapo of Wiesbaden found out about this and complained to the RSHA in Berlin and I had to justify my action to the Minister of Justice. I could only write him that the criminal code did not only authorize me but obligated me in such cases to undertake the necessary investigations. That finished that affair. Borngesser got away with a relatively short term in a penitentiary.
Q Do you remember the case Both?
A Both was a young man and was a leader of the Protestant Youth Organization in Frankfurt on the Main. He had an active correspondence with his comrades who were at the front, in other words, with the comrades who were German soldiers. He was charged that he influenced them in a defeatist manner in these letters. I also interfered in this proceeding and through the utilization of an extensive correspondence which Both led and the letters he received from the front, I could prove that the general attitude taken as a whole expressed in his letters did not justify the charges raised against him. This trial was quashed too and Both was released. I believe that is sufficient.
Q Did you issue such instructions on the basis of your own decisions? The last question I put to you was whether on the basis of your own decisions, that is, independent of whether defense counsel or relatives of the defendant interfered, you issued such instructions, if by looking through the files you became suspicious. Did you first of all review the facts if they were not quite clear?
A That was obvious. I did that frequently. Already when I examined the first information that I received I formed a picture as to whether in such a case something would not have to be done immediately.
Q May I remind you of the case of "Jungdeutscher Order"?
A Yes, that was the case in the Jungdeutscher Order. That was a youth organization that was prohibited after 1933. However, secretly it continued to exist and from time to time to carry out its Easter meetings during the war, and that was in 1939 or 1940, it lead to a sharp attack by the Gestapo of Hannover and later to numerous arrests under the point of view of high treason.
I immediately checked this action by investigations which we carried out as to its correctness, whether this was not a transgression or a violation of the State order against political organizations. There was no high treason at all that the young people were thinking of. The case was handed over to the People's Court of Hannover and relatively lenient sentences were pronounced there.
Q.- Witness, as such, it was not your own personal task, as Chief Reich Prosecutor, to check the accuracy of the police statement on your own initiative, or to cause its being checked?
A.- As such, of course, that was, first of all, the task of the people who worked on the case. However, I also considered it my duty to do everything that I could, everywhere, to see that this task was done.
Q.- Did you find out that this task was carried out, on the whole through your officials, very carefully?
A.- I attached great importance to that.
Q.- Were the number of cases that the Reich Prosecution had to work on so large that it was only with the utmost energy and large amount of work that these cases could be dealt with at all?
A.- The amount of work that was required of everybody -- in any case during the war -- was very large, If one wanted to do his duty correctly -- that is to say, to study every case from every angle -- one had to work very hard and had to do without many things which other people called pleasure.
Q.- Through Exhibit 43, which I submitted yesterday, I have already shown that the Public Prosecution also had to obtain material in favor of the defendant. This regulation also applied to the Reich Public Prosecution at the People's Court, did it not?
A.- Yes, it applied to every public prosecutor, but of course the prerequisite was that the prosecutor was in a position to find out about those points of view which were in favor of the defendant. One must not overlook one factor, namely, that according to the structure of the German criminal trial, a lot depends upon the defendant himself in that respect. There are innumerable defendants who reserve the facts which speak in favor of them until the trial, for the simple reason that when the point of the trial has been reached when the defendant reports on a new point of view which is a mitigating circumstance in his favor, the court in Germany, instead of adjourning, are apt to assume that the mitigating circumstances are the true facts, on the basis of the principle in dubio pro reo.
Q.- Witness, is it correct that the investigating judges were used to a large extent in order to examine the denunciations which the Reich Public Prosecution received?
A.- That was their function; that is what they were there for.
Q.- What did the investigating judge have to decide, above all?
A.- It was the task of the investigating judge -- if he wanted to fulfill his office as it was meant to be fulfilled -- his task was to the effect that he first had to decide whether, on the basis of the documents submitted to him by the police, a warrant for arrest should be issued by a judge. Then he had to interrogate the defendant, and had to undertake all other interrogations of witnesses and experts who had perhaps been mentioned in the interrogation of the defendant, be it in favor or be it against the defendant. Then, only after he had carried out all of these investigations and interrogations, he handed the files to the Public Prosecution. The transcript of the judge, in the case of an interrogation of a defendant, has quite a different significance according to the German Code of Criminal Procedure. If, in the preliminary proceedings before the trial, for example, a defendant has made a confession to the police, and he denies that during the trial, then, according to the Code of Criminal Procedure, this confession to the police cannot be used against him. However, that differs in the case of a transcript of a judge. A confession of a defendant in a transcript of the investigating judge, before the indictment is filed, can, if the defendant denies it in the trial, be read during the trial; and it can be used against him on the basis of this reading. That is the great significance and the value of this preliminary proceeding of the investigating judge according to German criminal procedure.
DR. GRUBE: In regard to the position of the investigating judge, may I, in this connection, refer to the exhibits which were introduced yesterday:
45, 46 and 47.
Q.- When the Prosecution witness Brem was examined here in regard to his affidavit, Exhibit 79 of the Prosecution, NG-316, the activity of the local judges and the investigating judges was discussed. In addition, the witness Wlawicz, the Czech, at that time, also discussed his observations of the investigating judge.
Witness, since you, after all, have a further insight into the activities of the investigating judge than the witnesses Brem and Wlawicz who, by the way, made positive statements in regard to the activity of the investigating judge -- may I ask you this? Did you ever -- either in the form of a complaint, or in any other way -- hear about a case in which an investigating judge of the People's Court acted differently during an interrogation than the investigating judge who examined and interrogated the witness Wlawicz, or differently than the one who interrogated the witness Brem?
A.- I never heard about such complaints, and probably none were ever made either, because the investigating judges always worked with great care and very conscientiously. Usually they submitted their files with a concluding remark, which was carefully prepared and documented, if they were of the opinion that there was no longer a reason for keeping the defendant in detention or that, even beyond that, the proceedings should be stopped. Those remarks were not at all seldom made.
Q.- Yesterday, by exhibits 53, 54, 57, 58 and 59, I showed that the Public Prosecution, by law, was obliged to file an indictment as soon as the investigations had been carried out.
Witness, together with the indictment, the Public Prosecution also had to send the files to the court, did they not? Did this apply to the Public Prosecution at the People's Court too?
A.- Of course, all of the files had to be submitted, and also, of course, together with them, the concluding reports which the Gestapo would attach to the files which they submitted, and which have already been discussed here.
These concluding reports of the political police were not at all used until after 1933. In the case of the political police, and also in the case of the criminal police, if capital offenses were concerned during the period before 1933; they were the rule.
THE PRESIDENT: You may suspend your examination until after the lunch hour.
The Tribunal suggests that the Prosecution, and any of the other agencies which may have to do with the assistance which should be rendered to defense counsel in securing evidence and witnesses, should make some fair investigation of the complaints which were made by Dr. Koessl at the opening of this session today. The Tribunal does not assume responsibility for the action of independent agencies, but it does desire to know the facts and it does desire that all possible facilities be accorded to defense counsel if they are entitled to anything in the securing of evidence. We will welcome any further information upon that matter. The transcript of this morning's session will set forth what Dr. Koessl had claimed.
We will recess now until 1:30 this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours?
24 July 1947.)
THE MARSHAL: The Tribunal is again in session.
DR. GRUBE: I ask to be permitted to continue the examination of the witness Lautz.
ERNST LAUTZ- Resumed DIRECT EXAMINATION-Continued BY DR. GRUBE:
Q Witness, before the recess I had asked you whether it was the custom that in addition to the indictment all other files were added? especially the reports of police investigation. In answering this question you were interrupted by the recess. May I ask you again to comment on that question briefly?
A It was customary to add to the indictment all the files without exception. In the files before the indictment was filed there was according to the practice of the German police which had always existed in all capital and political cases, there was the so-called final police report but that was not the result of an investigation having probative value, but it was just a summary of the opinion of the police authority at which it had arrived on the basis of the interrogations of the person accused and of witnesses. And these final police reports at all times were not even taken into consideration by many presiding judges.
Q The prosecution submitted various documents to prove that between the time when the indictment was filed by the Reidh Prosecution and the main trial the period was very short at times. I am referring to documents submitted by the Prosecution, Exh, 145, that is the affidavit Schmidt, Exh. 146, that is the affidavit Wergin Exh. 147, affidavit Falck? Exh. 240, affidavit Havemann, and Exh. 283, affidavit by Gruenwald. Also when the witnesses Havemann, Falck, Wergin and Gruenwal were heard here from the witness box it was found that at times these short schedules were worked out. Therefore, I briefly have to refer to the so-called intermediate procedure or interim procedure.
Witness, who was it in cases where an indictment had been filed with the People's Court who submitted the indictment to the defendant?
A That was the office of the senate.
Q Not the Reich Prosecution?
A No.
Q Witness, is it correct that when the indictment was served the defendant was notified by the court that he had the right to make objections against the scheduling of the main trial within one week?
A Yes, that is in accordance with the code of procedure.
Q Could this time be shortened?
A Yes, it could be shortened on the basis of the amendment to procedure of 1943.
Q Who was it that had to make that decision?
A The president of the court.
Q Did the Reich Prosecution have anything to do with that?
A No.
Q After that period and when there was no objection against the scheduling of the main trial, as is well known, the date of the trial had to be fixed. Who determined that date?
A The presiding judge.
Q Did the Reich Prosecution have anything to do with that?
A No.
Q What was the minimum time originally between serving the indictment and the trial?
A Minimum time of a week.
Q Could the presiding judge shorten that, too?
A Since May 1943 he could do that, and he could reduce it to 24 hours.
Q Did the Reich Prosecution have anything to do with that?
A No.
Q That reduction of that time to 24 hours, was that only admissible and customary with the People's Court?
A No, with all courts.
Q Was that fact made use of regularly with the People's Court?
A That quite indispensable measure was applied at the People's Court, in fact, only by the first senate, and the first senate could do that because since the amendment of May 1943 the court itself could schedule the main trial and could call the participants for the main trial, which normally was the task of the Prosecution. Normally the way it happened was that after the date was set by the presiding judge the files had to be returned to the Prosecution so that the prosecutor could notify the defendant and the witness and bring them for the main trial. The same amendment of 1943 reserved the right to the court itself to take these stops. As such it was clear that the return of files to the Prosecution after the date had been set, that in itself would bring about a certain amount of delay, and that reduction to 24 or 48 hours would only be possible if the court itself did that. But of that right to summon the defendant and the witnesses, only the first senate ever made use of. All the other senates did not.
Q Would you please comment as to what times were set by the other senates, normally, between the filing and the serving of the indictment and the date for the trial?
A That question is very difficult to answer from memory. I can only say that for years the aggendas were supervised by the Reich Prosecution and at the People's Court in order to find out what the delays were which existed between the serving of the indictment and the main trial. Since the fact that they were late -- in fact, the dates were late much more often than early. As for the early date, Schmelltermin, in the case of Havemann I remember that case pretty well. When the indictment was served in the case Havemann it was very interesting to me, because this was a new type of case of conspiracy. My office took about two weeks on account of being overburdened with work in order to turn out the written copy of the indictment; therefore that time between the signing, middle of November, until its being received by the People's Court, in the beginning of December.
That is about how I remember it. I was all the more surprised when I heard that Freisler had set the date after about 48 hours, and that he had already disposed, through his senate, to summon the defendant and witnesses. I immediately went to him and pointed out the nonsence of a scheduling of that kind and told him since that act had been committed months ago, since the indictment was in my office for two weeks, now some days or hours certainly wouldn't matter. But, caused probably by the Ministry of Propaganda or some other office, he was of the opinion that he had to set that date very soon and he had to have that trial before a large number of spectators.
Q In this connection may I refer to the Exhibit submitted by the Prosecution, Numbers 48l and 484 from which it can be seen that complaints were filed concerning the fact that between the serving of the indictment and the date set for the trial too much time elapsed. Witness, if a defense counsel believed that he had not sufficient opportunity to prepare his defense, what rights did he have from the court?
A Well, he could demand that the date for the trial should be postponed.
Q Did he? Did anybody make use of that right before the People's Court?
A Occasionally that occurred.
Q And who had to make the decision?
A The presiding judge also.
Q I, myself, just based my question on the assumption that the court had no objection against the setting of a date for the main trial. My exhibits 57, 58 and 59 revealed yesterday already what the court had to do if it had any objections against setting the date for the main trial. In this connection, therefore, may I ask you the following: did it occur at the People's Court that an individual senate for objections of some kind refused to schedule the main trial?
A Those decisions and not only with the People's Court, were extremely rare, because in anticipation of the fact that one could be sure that the person could be convicted, that anticipation could only be made if one had clear legal elements because one could not anticipate in what direction the main trial would go.
Q How a brief question. In what form was the indictment served to those defendants who were not able to understand German?
A Partly in writing in their native tongue, partly translated by interpreters in the prison.
Q The assertion has also been made that the defendants had to return the indictment. Would you please comment on this?
A Indictments which wore stamped Secret or Top Secret -- Geheime Reichssache -- according to a directive by the Ministry, had to be returned, and that, after the trial.
Q In the various affidavits which I have already previously mentioned, the assertion was also made that when defense counsel were appointed or selected, emphasis was placed on the fact that only reliable National Socialists should be nominated. Did the Reich Prosecution have anything to do with the procedure by which defense counsel approved by the court?
A No, we were not even asked about that.
Q Did you observe whether it was true that only reliable National Socialists were admitted as selected defense counsels -- selected by the defendant?
A I never bothered about that. There were certain regulations as to what offices had to be heard on that question before a defense counsel in general or in particular was admitted to the People's Court.
Q If a defendant had no defense counsel of his own choice, then as is well known, the court had the duty to appoint a defense counsel for him. In appointing that defense counsel, did the prosecution have anything to do?
A No, not at all. That was purely a matter for the court.
Q Concerning appointed defense counsel, did you make any observations to the fact that only reliable National Socialists were nominated as counsel by the court?
A The difference wars the following: as appointed counsel, in general only a lawyer was nominated who was contained in the list of lawyers admitted to the People's Court, and that list, to my recollection had about 100 names of lawyers from Berlin only. In the case of a defense counsel of a defendant's choice, it was a matter of the senate to decide whether, if that counsel's name was not contained in that list, he was admissible.
Q Do you know of any case where a defendant in a trial before the People's Court had neither a defense counsel of his own choice nor appointed by the court?
A He had to have a defense counsel at any rate. However; in the case of an appointed counsel; occasionally one or more defendants had a defense counsel together; if there was no collision of interests expected.
Q Did foreigners always have a defense counsel when they were indicted?
A Yes; certainly; of course.
Q Also in various affidavits which I have mentioned before; mention was made of the so-called permission to have visitors. First; I want to ask you; did defense counsel at the People 's Court have the right to speak to a defendant before the main trial?
A Every defense counsel had that right; but before the indictment was served; that conversation could only take place in the presence of an official.
Q Who was competent to give that permission?
A In general; the judge who had served the summons for arrest -but also the public prosecutor could give that permission.
Q Did you ever receive a complaint about the fact that no permission was given to speak to a defense counsel?
A I never received any complaints myself about that.
Q In addition to those statements just made; may I say that they refer first of all to the Exhibits of the Prosecution: 145; 283; 240. When the witnesses Wergin and Gruenwald were heard; and also from the affidavit of Falck -- exhibit of the Prosecution; No. 147 -- the socalled right to study the files was mentioned. Yesterday already by submitting my Exhibit 63; 64 and 65; I proved that the right to study the files was in force only after the indictment had been served. Witness; I want to ask you, was it; in spite of that; possible to afford an opportunity to defense counsel before that time to study the files?
A It was possible, but in view of the provision concerning secrecy, it was not the rule. But if a defense counsel or lawyer was known to me to be a fair person, then he could find out by conversation with the public prosecutor or myself about the charges against his defendant so that he could prepare his defense and base it upon that information until such time after the serving of an indictment when he could study the files.
Q As I have already stated, did the defense counsel from the moment on when the indictment was served, have the right to study the files? Did the court have the right to refuse that right to the defense counsel to study certain parts of the files?
A That was possible, but it had to have a good reason; for instance, if secret personal files of an official who might have been indicted were among the files, then these personal files could be excluded. But no file for which the right was excluded to the defense counsel to study could be used in any form in the main trial.
Q Concerning that last statement made by the witness, may I refer to my exhibit 64. Witness, in how many cases did you personally, during the main trial, represent the prosecution in main trials before the People's Court?
A That only occurred in connection with the 20 of July 1944; and there may have been ten main trials.
Q In all the other cases, therefore, there was some other representative of the prosecution in the trial?
A Yes.
Q It is known that you were authorized to issue directives to that representative for t he Reich Prosecution as to what penalty he should demand at the end?
A Yes, I could do that.
Q Did also the Ministry of Justice issue such directives?
A Yes, that frequently occurred.
Q Were these directives which were issued to the representative for the trial binding without regard to the result of the presentation of evidence during the main trial?
A No. Of course the decisive factor was that the evidence presented was in accordance with that which was considered as to be expected at the time when the directive was given.
Q Another question. According to the provisions which I yesterday submitted in Exhibit 75; interpreters had to be present when persons were concerned in the trial who did not speak German. Was that always kept by the People's Court?
A Yes, of course, otherwise one could not have understood the defendants and witnesses.
Q The witness Gruenwald in his affidavit, Exhibit 283 of the prosecution; and also when he was here in cross examination, stated the following: "Before the People's Court, an oral indictment could be pronounced." Would you comment on that?
A The witness Gruenwald was mistaken. At all times there had to be an indictment in writing, but that indictment in writing at the beginning of the main trial had to be presented though briefly but orally.
Q: Therefore, you maintain that, in all cases, a written indictment existed?
A: Without that it could never have come to trial.
Q: It was furthermore asserted, and that through exhibits 145 and 283, that proceedings before the peoples' court had at times been carried out in secrecy - that is, with the exclusion of the public. Would you comment on this, please?
A: That was in accordance with a provision contained in the legal code of procedure accocding to which a proceedings which, if it became known, would endanger the security &f the state, could be conducted under exclusion of the public. That is to say, without any spectators, Any listeners, from the public. That was so in the State Tribunal for the Protection of the Republic and that was not different in the case of the Reich Supreme Court.
Q: May I refer to my Exhibit 69 in this connection. The prosecution...
A: (Interrupting) But I must point out that that was not the rule. Many trials were public trials.
Q: The prosecution quite generally asserted that proceedings before the peoples' court had deviated from the normal trial procedure. Therefore, I am obliged briefly to refer to other shortcomings which were asserted and to explain how these proceedings took place.
At the peoples' court was also the presentation of evidence only directed and supervised by the presiding judge?
A: Yes, that was in accordance with the law.
Q: I have already yesterday demonstrated that, according to German law procedure, the defendant could never be taken under oath.
I refer to Exhibits 48 and 49. Was that different with the peoples' court?
A: No.
Q: Was it so that also in the peoples' court already the presiding judge had the right to question the defendant?
A: Yes.
Q: Was it so that also in the peoples' court the representative of the Reich Prosecution could only question the defendant through the presiding judge?
A: Yes, that was the same.
Q: Was it so also in the peoples' court that the witnesses were only questioned by the presiding judge?
A: Yes, tut defense counsel, defendants and associate judges could also ask for permission to question them.
Q: But, is it true that these questions could be put with the approval of the presiding judge?
A: Yes, and he would certainly give that approval.
Q: The witness Havemann in his affidavit, Exhibit 240 of the prosecution, stated that during his trial, which took place on the 15th of December, 1943, and in the case of later trials he never observed that there were any cross examinations. Would you comment on this, please?
A: Cross examination in the German criminal trial never played any practical role although it was admissible. Then, by the decree of August, 1942 it was abolished - the possibility was eliminated.
Q: You must said that a provision from the 15th of August, 1942, abolished the cross examination?
A: Yes.
Q: At the time, therefore, when Havemann made his observations - that is to say, from December, 1943 on, it was no longer possible to carry on a cross examination?