For that he would have to have my approval which he could get by telephone, if necessary.
Q.- Witness, did you personally, by general directives to your department chiefs and prosecutors, demand that all cases which were pending in your office should be measured by a rather severe yard stick? I put this question because the prosecution apparently submitted Exhibits 220, 469 and 488 for that purpose.
A.- I never gave any such general instructions and the exhibits do not prove it either. As for the first two, I referred to these this morning. And Exhibit 488, that is NG-823, a report on a trip to Vienna, that does not speak for that either. In Figure 2 of that report it is clearly to be seen that on the basis of an assignment by the Minister of Justice, I went to Vienna, because on account of new and serious crimes concerning explosives which had been committed there, it had to be investigated as to whether the practice applied up to that time could be continued. From that Figure 2 it can be seen that the Reich Prosecution with the People's Court, to a large extent had transferred high treason cases to the District Court of Appeals in Vienna and that there was a directive from the Minister to the effect that transfers to that large extent should not continue. But it was necessary to get in touch with the general prosecutors in Austria at that time, the Ostmark, to find out whether one should not demand more severe sentences especially against functionaries of the Communists and on that I submitted a report to the Minister.
Q.- You must have discussed with your department chiefs what course should be taken in prosecuting cases. Is that correct?
A.- Of course we did that. At intervals we had discussions with my department chiefs and apart from pure routine matters, such as the distribution of work, personnel questions, of course also questions were discussed as to how individual cases should be handled because there were six and in the end seven departments over which the work should be distributed evenly and which should take an even course. During these dis cessions, however, neither I nor the department chief ever proposed special severity to be applied.
We were glad if we could agree as to how the severe decrees which were handed down to us could be handled with reason.
Q.- Would it have been possible for you to influence the jurisdiction of the People's Court in individual cases by channeling certain cases to certain senates?
A.- That was not possible because, according to the distribution of work, as established, the cases came before the different senates automatically. Sometimes, however, it was possible in the case of Freisler's senate, because he had reserved for himself to handle cases which appeared particularly important to him. In that case, however, one could use his absence to schedule a case which otherwise he would have taken for his senate before another senate.
Q.- I come now to the jurisdiction or, rather,to the filing of indictments by the Reich Prosecution against members of the Protectorate Bohemia and Moravia, When was it that the Reich Prosecution for the first time dealt with criminal cases from the Protectorate Bohemia and Moravia?
A.- That was the middle of December 1939* In the middle of December 1939 the first files, reports and investigations made by the state police in Bohemia and Moravia concerning the great resistance group of Narodna Obrana were received by the Reich Prosecution. The Armed Forces Court, in accordance with the High Command of the Armed Forces, refused to handle it was military cases and decided to transfer these cases to the regular courts.
Q.- What was the purpose of that resistance movement which at first was organized as Norodna Obrana? What was its extent?
A.- The kind, the extent and the aims of that resistance movement are described in the sentence against Elias and are described correctly there. May I mention here that the sentence against Elias in the case of Elias is contained in Exhibit 375 of the Prosecution. Since the sentence is just before the Tribunal I do not have to repeat the facts so that it won't waste any time.
But that does not mean -- rather, I do not mean to say whether I consider that sentence correct otherwise.
Q.- What was the activity of that resistance movement?
A.- That activity was especially directed against the Reich for the re-establishment of the borders and not only to remove the so-called German domination, German rule, but also to regain the territories which by the agreement of Munich, had come to the Reich. The agreement at Munich in 1938 was referred to, but it was also directed against the autonomous government of the Protectorate, the removal of which the conspirators also intended to carry out. Already, when the first files were received, one could see that that case would reach very great extent. The number of people who at that time were arrested exceeded several hun dreds.
Q.- What did you undertake in that case?
A.- After I had gained an impression of the case by studying the files in the beginning of 1940, I reported to the then Minister of Justice Guertner about the matter. He said that if the facts were true, as described in the files, the danger of that movement for the Reich would be a very great one; that the Administration of Justice in this case had to carry out its specific task at all costs, and that if necessary, also the People's Court had to be expanded byt first he sent me to Prague to enable me there to get in t ouch with the appropriate officials of the Security Police and the then Reich Protector and to talk to them to find out from them what their views were about immediate developments.
Q.- What were you told as to the lines of thought of the chief of the Security Police at that time?
A.- At that time, at the end of February, 1940, when I came to Prague, I discovered the following: The Chief of the Sicherheitspolizei, Security Police, had the following plans. Heydrich was to receive from him the suggestion that only the main leaders of the movement should be turned over to the People's Court but, as for the rest, Standgerichte, civilian courts martial should try the other people.
Q.- What was your point of view concerning that plan?
A.- The plan to me seemed to be quite unacceptable. Therefore, I told the chief of the Security Police that that way of handling the case was not in accordance with the considered opinion of the Administration of Justice and that I had no authority to agree to it. On the sesequent day the matter was discussed with the then Reich Protector von Neurath. There the Chief of the Security Police made the same suggestions, and I stated my opinion as I had done the day before. Reich Protector von Neurath said that in view of the consequences of the suggestions made by the Chief of the Security Police he had to get in touch with the Minister of Justice and, if necessary, one had to ask ones decision on the part of Hitler.
Q.- What did you do then when you returned to Berlin?
A.- When I returned to Berlin I reported to Minister Guertner. He immediately decided that none of the accused could be turned over to a Civilian Court Martial -Standgericht, and even if the Volksgericht had to be extend to 30 senates. In that sense he immediately wrote to the then Protector von Neurath, and as far as I am informed, the question was submitted to Hitler for a decision. Hitler's decision at that time was that he wanted for the time being no trials at all, and, therefore, no sentences in these cases. However, they should continue and the administration should prepare these cases up to the filing of the indictment, and it was also expressed that Hitler at that time apparently expected the war soon to end favorably and that he planed in that case an genetous amnesty.
When that decision of Hitler arrived at the Ministry of Justice Dr. Guertner directed that immediately an experienced prosecutor be sent to Prague to be able to have current information of the police investigation and could take the necessary steps. Senior Prosecutor Volk, when he was sent to Prague reported to me soon, however, that he alone could not carry out that task, and that was the cause why Minister Guertner's investigation judges were appointed in the Protectorate. About the task of these investigating judges I have already spoken this morning.
Q.- Were these investigating judges active in the first year of the war in the Protectorate?
A.- They were active constantly.
Q.- In this connection may I refer to Exhibit of the Prosecution 364?
A.- Later when the prisoners, for lack of prison space in the protectorate, were transferred to prisons in Germany, to Breslau, Bautzen, Dresden, Leipzig and Nurnberg, the investigating judges were appointed in these places.
Q.- Witness, you mentioned before the so-called stop order by Hitler, on the basis of which individual cases were only prepared up to the point of filing the indictment. Were these cases never actually tried?
A.- Yes, they were really tried, That is shown by a letter which Meissner wrote to Schlegelberger on the 13 March 1942.
Q.- May I add here, it is Prosecution Exhibit 363.
A.- Further development was the following: In the summer or fall of 1940 a now situation arose. It appeared necessary that a decision be found for the large number of people against whom the charges were of minor extent because it wasn't possible to keep them in prison for an indefinite period of time. Here again Minister Guertner brought about the decision on the part of Hitler, and that decision was that these proceddings could be resumed and continued but that it was not desirable that any death sentence be pronounced. As he said, he did not want to create any martyrs. I personally believe for certain that that decision was due to the advice of the then Protector von Neurath.
Q.- Is it correct that in the Summer of 1941 conditions in the Protextorate became more serious?
A.- That is correct. In the middle of the Summer of 1941; especially particularly after the campaign against the Soviet Union had started, one could sec from the files which wore received that there was a considerable increase of the activity of the resistance groups who now were not only in the Harodna Obrana and tried to obtain results there, but received a lot of support from the Communist Camp. Various attempts were used since for that increased inactivity. I at that time reported that to the Minister of Justice in accordance with my duty and I was sent into the Protectorate consequently to gain an impression of the situation there myself, and especially to discuss those matters with the Reich Protector.
Q Would you please inform the Court what the result of that trip was?
A From my discussion with the offices of the State Police, as well as with the Investigating Judges and Reicsportector von Neurath, I gained the impression that the activity of the resistance groups had increased, but that there was no grave danger for security. Reichsprotector von Neurath was particularly of that opinion. During the discussion with him, the case Elias was also mentioned. That was in the middle of September, 1941.
THE PRESIDENT: Our hour for the afternoon recess has arrived. We will take a 15-minute recess.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY DR. GRUBE:
Q Before the recess I stopped with your trip which you made in the summer of 1941 to the Protectorate and your conversation which on that occasion you had with the Reich Protector Freiherr von Neurath. Just before recess you began to comment on the Elias case which was discussedat the time.
A I had reported that at this discussion with the Protector von Neurath the situation was clarified to the effect that in his opinion, in any case, there was no cause for special measures to be taken. Especially did this apply to the Elias case. Elias was at that time acting minister president of the government of the protectorate. He was being suspected of having had contact with the resistance groups and also with the government in exile of Czechoslovakia in London. In spite of that, von Neurath with Hitler's approval did not take any steps against Elias, and there was he official trial against him, either, at least it was not conducted by the Reich Public Prosecution. I had known that for some time, and during this conversation in September, 1941, Neurath again spoke about the Elias case and stated that in this case nothing had changed, either, that measures against Elias were out of the question at the time, that Elias continued to act in his official capacity with the approval of von Neurath. After my return to Berlin I reported to the acting minister of justice about these impressions which I gained on my trip. The events which occurred at the end of 1941, due to the sudden appointment of Heydrich as Protector, the events which occurred in the Protectorate thereafter came as a complete surprise to the Administration of Justice.
Q What consequences in the field of the Administration of Justice did the first exceptional condition have in the Protectorate?
A The first time that martial law was declared, that court martials were instituted for the first time in the territory of Bohemia and Moravia, involved the serious danger for the Administration of Justice that the trials which were pending before its courts would be handed over to the civilian courts martial which was also required at first.
But from the documents which the Prosecution submitted it is evident that the skilful defendant Joel succeeded in meeting this danger and averting it.
Q May I say here that we are concerned mainly with Exhibit 480 of the Prosecution. The second declaration of martial law then followed. What happened at that time?
A The second time that martial law was declared in Bohemia and Moravia was in the beginning of June, 1942, after Heydrich , who was Deputy Reich Protector, had been killed. This time, too, the danger that civilian courts martials would intervene was even increased compared to the first time since there was a state of emergency. And at that time this caused the acting Minister of Justice to instruct the agencies which were concerned with prosecution and penal cases -- that is me and the Public Prosecutors of Breslau and Leitmeritz and Dresden -in order to discuss what consequences the Administration of Justice, would have to draw from this newly arisen situation. The reason was apparently the following, that due to the events which were connected with the murder of Heydrich it had become clear that the resistance groups in the Protectorate were much more dangerous than one had assumed so far. This gave cause for the issuance of an instruction to the participating Public Prosecutors to use the application for a death penalty more frequently than had been done heretofore in their application for penalties during the trial, but only against functionaries, activists, and people who had distinguished themselves by distributing leaflets of dangerous contents and by collecting of weapons and who had been especially active in these fields.
Q You had already stated before that the aim of all resistance groups in Bohemia and Moravia was the removal of the power of the Reich, the removal of the autonomous government of the Protectorate, the tearing away of the Sudeten territories which had been given to, the Reich by the Munich Agreement in 1939.
What instructions did you as representative of the Prosecution receive from the Reich Ministry of Justice as to how the collaboration in this resistance group was to be considered from the point of view of criminal law?
A In my earlier statements I had made some statements about the application of German law in the Protectorate and stated that the first indictment had to be submitted to Minister Guertner, that he himself assured himself of Hitler's attitude before I was instructed in those cases. - the aim of which has just been stated - to start from the supposition that preparations for high treason existed, and not only against the Reich but also against the autonomous government of the Protectorate, and it was to be pointed out also that the inhabitants of the Protectorate on the basis of the statements made by their government were obligated to loyalty. That was the legal basis on which indictments had to be supported in cases in the Protectorate.
Q Is it correct that after the Soviet Union entered the war in 1941 the instructions by the Ministry of Justice were made more severe, namely that now not only for preparations for high treason but also for giving aid and comfort to the enemy people had to be indicted?
A That is not true, generally speaking, not true everywhere, but it applied only to especially serious cases in which, according to the intent of the person who acted, this aim was within his will. In any case that is how I always interpreted the instruction. Moreover it applied not only for the territory of Bohemia and Moravia but it applied everywhere.
Court No. III, Case No. 3.
Q In that connection, may I refer to the Prosecution's Exhibit 48. Witness, according to your observations at the time, did the Nationalist and Communist resistance groups in Bohemia and Moravia actually constitute such a danger for the Reich, that indictments for death penalty because of high treason and rendering comfort to the enemy seemed justified?
A The territories of Bohemia and Moravia, the longer the war lasted, was the more important for the armament and therefore for the resistance power of the Reich. Due to the air war; a number of the most important industries of the Reich had been moved to the territories of Bohemia and Moravia. Moreover, it was military territory for the advance toward the East and the Southeast. It is obvious that a disturbance of order in that territory would render considerable disadvantages to the occupying power. Both groups, the National Socialist as well as the Communist, therefore, had to be taken seriously. They had numerous weapons at their disposal and a great deal of money. They continuously received support from the air by English and Soviet fliers who dropped weapons and radio sets. In parts, armed groups formed, who in the forests of Bohemia and Moravia, constituted a considerable danger for security and order. Unfortunately cases of that nature were not presented in the material submitted by the Prosecution.
Q From certain documents submitted by the Prosecution, is the danger of these resistance groups, however, not indicated after all?
A From the documents submitted by the Prosecution, one can in any case deduce the following; for example, from Document 509, NG-837, that is the indictment against Scharbert and Associates. This case deals with a trial against the illegal K.P.C. (Communist Party of Czechoslovakia) the Chotzan. What ideas the defendants had in their mind when they formed their communistic activities and distributed their leaflets can be seen from the statements in the indictment. The defendant Bartha, for example, stated that it was their aim to prepare the overthrow; the incitement of the masses, and to cause damage by sabotage. The defendant Sychra stated that their aim was to carry out Court No. III, Case No. 3.world revolution in all countries, to establish the dictatorship of the Proletariat, and to establish a Soviet State in the territory of Bohemia and Moravia.
From Document Exhibit 185, NG-350, Yambruscy and Associates, it is apparent that the defendants were active functionaries of the Czech Communist Party in the mining enterprises, which of course, was of considerable importance during war time. From this sentence, it is shown that Bruverka, who was not very active, was sentenced only to imprisonment. From Exhibit 513, that is NG-1472, it follows that the defendant wanted to procure dynamite for political purposes--or rather that he did procure it. In Document Exhibit 184, NG-356, it shows that here we were concerned with the distribution of Communist leaflets.
Q Witness, was the Reich Public Prosecution, in view of the facts which are apparent from these documents, obligated to serve an indictment?
A Doubtlessly, it was.
Q The Prosecution submitted three cases in which members of the Protectorate of Bohemia and Moravia were sentenced by the People's Court or indicted before the People's Court because they were active for the Czech Legion which existed abroad, or tried to join it. We are concerned with Documents, Exhibit 131, 512 and 514. What did you know about the existence and the danger of this Czech Legion?
A In the countries of the foreign enemy powers, in England and other countries, the groups of this legion fought, and that was well known. It was known also in France, since parts of this Czech Legion had been captured and deprived of their arms in southern France. That the Legion continued to exist, however, was apparent also from reports of the Intelligence Division of the OKW. As the document submitted by the Prosecution, which you already referred to, shows the Reich War Court was first concerned with sentencing these cases.
Q I may state here briefly we are concerned with Exhibit 127.
A This exhibit, however, shows also that the military courts, especially the Reich War Court, later on left the sentencing of these cases to the People's Court. According to the code of procedure, they were Court No. III, Case No. 3.authorized to do this.
This document, however, also shows that the support of this Legion from within Czechoslovakia--that is from Bohemia and Moravia-- should not have been underestimated as to the degree of its danger, because the border had been crossed in groups, who in part were led by armed persons, and led to armed conflicts with the German border officials. There were recruiting offices in the Protectorate who mediated for joining the Legion. They provided, those who were interested with false papers, money, and whatever else they needed in the way of equipment. The taking over of the proceedings by the People's Court is based on a regulation by the Minister of Justice, which is alos included in the same document.
Q I may here also repeat the question which I had already put to you in regard to the other documents before. Was the Reich Public Prosecution bound by law, in view of the existing facts which are shown in Exhibit 131, 512 and 514, to serve an indictment before the People's Court?
A It had to do so.
Q The documents which the Prosecution submitted in regard to the so-called Czech Legion cases refer exclusively to such Czechs who were living in the Protectorate. Did you hear of cases in which Czechs, who were working in the rest of the Reich territory and tried to cross the border, were sentenced because they tried to join the Czech Legion?
AAt the moment, I don't remember such a case. The majority of cases, however, in any case--and this differs from the Polish workers-concerned people who were living in the Protectorate of Bohemia and Moravia: students, business men, and other nationalistic Czechs who wanted to fulfill their patriotic duty by joining the Legion in this way. This can also be seen from another case.
Q The Senetza case?
A Senetza is a Polish case.
Q No--Oh, you mean Document 512?
A Yes.
THE PRESIDENT: Exhibit?
BY DR. GRUBE:
Q.- Exhibit 512.
The Prosecution, in regard to the Elias case, submitted documents 374, 375 and 430. The documents show that the Reich Public Prosecutor, through the Gestapo, had been excluded from the Elias case and that the Gestapo filed the indictment before the people's court. Did this happen with your agreement and approval?
A.- Not at all. Under no conditions.
Q.- What steps did you undertake when you found out that the Gestapo appeared as prosecutor?
A.- This exclusion of the Chief Reich Public Prosecutor, without my knowledge, was brought about by an agreement between Thierack and Heydrich. The documents explain how this agreement came about in such an unequivocable manner that I do not have to repeat it here. During the critical days I was on a business trip outside of Berlin. On the morning of the 29th or 30th of September, I believe, I was called by the adjutant of Under Secretary Freisler and told that Elias and Chlapka were being tried in Prague without my bring told when and I was told that I should keep in readiness so that I could take part in this trial. Since I was in Vienna, I replied that he should call me again and tell me the date that had been set for the trial and that, if this would be very soon, it would be better that I would go directly from Vienna to Prague. Thereupon, I did not receive a new telephone call. Therefore, I called around noon and I called my office in Berlin. I spoke to my deputy and asked him what the state of affairs was. He replied that in Prague the Gestapo would represent the prosecution and that he had been instructed by the Chief of the Division of the Ministry not to do anything. Thereupon, I decided to return to Berlin, immediately. The next morning I arrived in Berlin. I went to the Ministry of Justice immediately and there I heard that actually, between Thierak and Heydrich, this agreement had been reached.
I asked the Acting Minister immediately and emphatically to see to it that I, in my position, could appear in Prague at the trial. The attempt to bring this about during this hour, however, failed.
Q.- Did you then reconcile yourself to this that the Gestapo pushed you to the side?
A.- I did not, but I asked the Acting Minister to immediately relieve me of my official duties.
THE PRESIDENT: Who was the Acting Minister, Dr. Lautz?
A.- The defendant Schlegelberger. This matter has been discussed already.
THE PRESIDENT: I just wanted to fix the date. Could you state the date of that trial?
A.- That must have been on the 30th of September, 1941.
Of course, I thought about the reasons for this measure, what they might be, and already at that time I came to the conclusion that it could have only been aimed at my own person. Heydrich, moreover, I met only one single time during my entire time in office and spoke to him. This was during an official discussion in the Ministry of Justice when Minister Guertner was presiding. Although I only met him this one time I already had had a clash with him due to the investigations which were conducted in November, 1939, due to the attack on Hitler in the Buerger-Braeu-Keller in Munich. At that time, early on the following day, I had immediately been sent to Munich by the Minister in order to participate in the investigations conducted by the Gestapo. I did so only after some resistance and only incompletely and with the utmost effort and thus found out the most superficial facts. Therefore, I returned to Berlin and reported about this and left the public prosecutor, who accompanied me, in Munich. He was then told, in Munich, if the Reich Public Prosecution did not keep out of these investigations it would be kept out of them by force.
This was due to Heydrich's interference from Berlin and Heydrich doubtlessly knew well that in February 1942, due to my visit in Prague, I had in advance found out that civilian court martials were to be established, a plan which was later given up because Neurath and Guertner, who could have carried it out before, had brought about the decision by Hitler. About the result of my report in the Ministry of Justice on the occasion of the Elias case, I immediately informed my division chiefs because the ill will about this terrible event extended among a large number of people. All of them were of the opinion that this had to be protested against energetically and, on their own, wrote a protest and submitted it to the Minister of Justice. The matter was then settled by having, in front of the Chiefs of the German administration of justice, who were gathered a few weeks later, a statement read by Thierack by which he explained that his attitude represented an exceptional case, justified by state emergency, that it was not directed against the public prosecution or the Reich Public Prosecution, and that it would not be repeated.
BY DR. GRUBE:
Q.- I now come to another group of cases. These are prosecution documents which refer to cases of the so-called German high treason. The first one of these documents is the Schmidt affidavit, exhibit 145. The Prosecution, as can be seen from the document, originated at the end of June, 1939, and the trial took place on the 14th and 15th of September, 1939. Do you know anything at ail about the case?
A.- No, that was before my time.
Q.- But will you please, in spite of that, comment on this case briefly by referring to the affidavit?
A.- One can only gather the following from this document. Schmidt and his accomplices were indicted because of high treason and treason, but after a representative of the OKW, during the trial - Schmidt apparently calls him, by mistake, a witness, but he probably was an expert Well, after this representative had made his statement, given his testimony, the indictment because of treason was not followed up any further but the person was sentenced alone because of preparation for high treason.
This shows that the court deviated from the indictment.
Q.- The next document is Exhibit 493. From this document it is apparent that the document was signed by Parrisius. Do you remember the facts still from your activity as Chief Reich Public Prosecutor?
A.- No, without seeing the document I don't remember it either.
THE PRESIDENT: What exhibit was that, please?
BY DR. GRUBE:
Q.- 493.
Do you know what penalty the representative of the Reich Public Prosecution, after he had submitted his evidence, asked for?
A.- Of course, I cannot tell you that. I could only tell you that if I would see the files.
Q.- In that connection, may I ask you anyhow to state your opinion to the case. To what extent do indictments or sentences, which the prosecution here submitted, give a clear picture about what was the basis for the Reich prosecution when they filed their indictment, or rather, what they knew at the time?
A It is very difficult and almost impossible to draw such a conclusion without seeing the files, but from this document one can see that the defendant Deibel twice -- once on 29 April, and once 22 July 1941-- had written Marxist communist pamphlets, in the latter case as an incitement strikes -- a call for a general strike; and that is a strike in favor of the Soviet Union, and he directed the workers of an armament factory; moreover, he was being charged with listening to foreign broadcasts--enemy broadcasts.
Q Due to those facts, was Parisius obligated to sign the indictment?
A The indictment had to be served.
Q The next document is Exhibit 492. In this case we merely have the sentences of the People's Court of 24 June, 1942. Do you remember whether you signed the indictment?
A Due to the large number of indictments which I signed, I can no longer recall that. However, after I had read the document I again recalled the case, and that is because it was one of the more serious, doubtful cases in the Frankfurt district which had so far been reported to the authorities.
Q Do you still remember what penalty the prosecutor of the Reich Prosecution who was present in the trial asked for after he had submitted his evidence?
A I could only tell you that if I could see the files.
Q The next document is Exhibit 240. This is the Havemann affidavit which was already been repeatedly mentioned. In regard to this Havemann case you have already stated your opinion in your situation report of the 9th June, 1944; that is Exhibit 220.
In this situation report you mentioned the European Union. Please state briefly what it was all about -- this European Union.
A The European Union was, as the witness Havemann told here before this Tribunal, a secret organization which, without any doubt, wanted to bring about the overthrow of the government of the Third Reich -- or desired it.
And without a doubt, according to the conception of the indictment, of that time, also tried to bring it about; in effect, it was all for the immediate, and not for the distant future. This was apparent already from the fact that the participants in this group, the members of this group, were in touch with, or tried to get in touch with foreign resistance groups, and had taken up contact with the foreign intelligence service and wanted to obtain large numbers of foreign workers for their aims--and also succeeded in getting them. According to the German criminal legislation, this went beyond high treason, it was espionage in war time.
Q Can you still remember whether you signed the indictment in this case?
A I certainly signed the indictment.
Q Do you know what the attitude, what opinion the prosecutor, who was the representative of the Reich Prosecution in the trial represented, after the submission of evidence and what penalty he asked for?
A The Havemann affidavit, which was not introduced, but in it Havemann said that that the representative of the Reich Prosecution asked for the death penalty. I have no reason to doubt this. In view of the situation, I would like to even assume that. I would also like to assume, although I cannot remember it any more, but I consider it possible that I authorized him to make an application for this penalty.
Q In this affidavit Havemann stated, also, here when he was examined as a witness, the execution of the penalty was postponed because he was needed for scientific work. Is it correct that after the first postponement of the penalty you were in favor of a pardon for Havemann because you considered it not humane to leave him in uncertainty regarding his future fate?
A I considered it my obvious duty to point out that if one had once decided not to execute the sentence, it is absolutely impossible and unbearable -- it would seem so -- from two to three months again to make this decision every time and to leave the condemned person in uncertainty, and at the end of this respite carry out the penalty any how.
Q The Prosecution further submitted Exhibit 161. This concerns the Felsen case. Here neither the indictment nor the sentence has been submitted. The document, which apparently is from the working file of the defense counsel, shows that the trial took place in December, 1944, and Felsen was sentenced to death. At that time Felsen asked for a re-opening of the case, but he was insuccessful.
Do you know that case?
A No.
Q Can you explain why this case escaped your attention?
A In virtue of the innumerable cases with which we were occupied, it is entirely impossible years later to remember every single case. It would be different if the files could be submitted to me and I could say something by referring to the files, and could say that I remembered the case again from the documents which were submitted; but, this way it is impossible.
Q The subject of the care was, as can be seen from the trial, among others, also the fact that Felsen had monitored radio messages from the enemy. The Prosecution in this trial here, in the index to the document book concerned states that Felsen was sentenced only for listening to enemy broadcasts. Therefore, I am asking you could Felsen only for listening to foreign broadcasts be sentenced to death?
A On the basis of the law against listening to foreign broadcasts, certainly not.