Q Would the People's Court have been competent for the sentencing of Felsen, if Felsen had merely been indicted for listening to enemy broadcasts?
A Only for that offense, he could not have been indicted before the People's Court.
Q This probably can be seen from the competency regulations which I introduced as exhibits yesterday?
A Yes.
Q According to this Felsen must have been sentenced also for other offenses. Do you remember anything at all about it?
A No, but one has to assume that without any doubt.
Q The next document is Exhibit 490. It concerns the Fredrichs case. Here the indictment, which you signed, has been submitted. However, from the indictment fourteen pages are missing. From the sentence only the formula, but not the opinion has beer submitted. Do you still remember the facts which formed the basis of the indictment?
AAfter I had read the document, I again remembered the case more less. From the document I see that he was a stateless person person who was born in Germany, from Altona, that is from Germany, that he advocated communism, and later did so abroad.
THE PRESIDENT: May I have the number of that exhibit again?
DR. GRUBE: Exhibit 490, your Honor.
Q Can you explain how the court decided upon a prison sentence of five years in the penitentiary in this case?
A Do you mean to indicate that it was only a five year penitentiary sentence?
Q Yes.
A That apparently is due to the fact that the offense was committed before the outbreak of the war; that most of it was committed in a foreign country; and that it was not especially serious. But, since the opinion of the sentence has not been submitted, this is only an assumption on my part.
Q The next document is Exhibit 483. It is the Sievers case. Here only a Fuehrer Information has been submitted. Do you still remember the facts of the case?
A Even by referring to the Fuehrer Information, I cannot say from memory what the details of the facts of the case were.
I conclude from that, since on the basis -- I have a pretty good memory -- of that case, and since the significance of the case would doubtlessly recall more matters to my mind, than was contained in the Fuehrer Information, it is my belief that I did not handle the case personally, but I cannot say that with certainty either.
Q The next case belongs to the group of the 20 July 1944. On the 20 July 1944 the attack on Hitler's life was made, as is well known. Please, first of all, describe briefly what circumstances also were involved in that action: What was the aim and what crime did the participation in this action constitute?
A In this action of 20 July actually persons from all levels of the German people were involved with the exception, perhaps, of the Communists. The action itself was a deed committed exclusively by a group of officers of the Wehrmacht. The aim, and there is no doubt about it, was the removal of the Hitler regime. What was supposed to happen afterwards, in view of the extensive lack of agreement of the participants among themselves, was not clear at. all and a great deal of scope was left to improvisation even. As to the aim, how one was supposed to act toward the outside world, those who participated were not in agreement at all. A part of the conspirators hoped to be able to bring about an agreement with the Allies of the West while the others wanted to deal with the East. One thing was certain, that those participants who belonged to the left counted with certainty upon the fact that the government of generals which might have resulted would soon collapse and then bring them to power.
Q What was the conditions of the attack itself under criminal law?
A It was an infrequent case of complete high treason.
Q Those who participated in the attack directly were, as you said, almost exclusively members of the Wehrmacht. Thus they should have been sentenced by the Reich Military Court.
A For the entire case, that is, for the soldiers as well as for the civilians, the Reich Military Court would have been primarily competent for two reasons: first, during the war the Reich Military Court was competent for high treason and treason primarily, regardless of whether the person who committed the crime was a soldier or civilian.
However they were authorized to say that they were no military interest involved and to transfer the case to regular courts. The Reich Military Court in general did this to a large extent and in individual cases also.
In addition, in this special case, it was competent for civilians also because, since there was a connection between the military and the civilians, the mutual competence was well-based in the case of the Reich Military Court also against civilians.
Q As Exhibit 119 indicates, and as is well known generally, the proceedings however were carried out before the People's Court. Did you initiate that these trials be carried out before the People's Court and became pending there?
A No. After the attempt was made known I regarded it to be absolutely certain that the proceedings, as I have already explained also those against the civilians, would be tried before the Reich Military Court.
Q What did you find out as to what the decisive reasons were for having the trial carried out before the People's court instead of the Reich Military Court?
A On the morning of the 1 August 1944 I was just about to make a trip to Bad Reichenhall where my seriously wounded brother-in-law had arrived in a military hospital from the east. Since I thought that he would die I wanted to see him again. When I was just about to leave the house I was ordered to come to the Ministry on an urgent affair. I was prohibited from starting on my trip. In the Ministry of Justice were Freisler had been ordered to report also there was a discussion over which Thierack presided and the undersecretary at that time, Klemm, and Obergruppenfuehrer Kaltenbrunner were also present. Herr Thierack surprisingly told us that the trial, because of the attempt, would take place before the People's Court;
that Hitler had ordered this after an Honor Court composed of officers of the Wehrmacht had expelled the guilty generals, captains and majors from the Wehrmacht. The first results of the investigation could be expected already in a few days. On the 7 of August 1944 it would be possible to hold the first session of the trial. The manner of executing possible death sentences was also discussed and those who participated in this discussion had no doubt at all that a possible execution would be carried out by shooting. The only doubtful factor was whether the Commando for this would be furnished by the Wehrmacht or the police. Two days before the trial, however, Thierack issued a different instruction to the effect that, given the case, death sentences would be pronounced, ho would use the law of April 1933 and have the sentences executed by hanging even in the case of the soldiers, and therefore, he desired that the opinion, that is, the reasons on which the sentences arc based, if the case would lend itself to this, would be formulated in such a way that they would form a basis for such a decision on his part.
The public prosecutor too, if he considered the facts suitable, if there was especially dishonor, lack of honor in the attempt, he would have to point this out.
Accordingly to my conception of that time already this was the reason primarily why the trials were taken away from the Reich Military Court because a sentence pronounced by the Reich Military Court could never have been executed by hanging.
Until the time of this trial I was of the opinion that it was an idea of Hitler's, but from the document which the prosecution submitted, it is apparent, and this is NG-416, Exhibit 44, that it was Thierack who, via Bormann, had spontaneously taken up the idea--as the document says: approached the Fuehrer, that is to say, Hitler; that the Reich Military Court made this decision according to which the People's Court should handle the trial.
The sentence pronounced by the Reich Military Court would not have been different in most cases, but the manner of conducting the trial and the manner of execution would have been carried out in a way which would have speared the Administration of Justice that humiliating experience, which this Tribunal could gather from the film which was shown here.
THE PRESIDENT: We will adjourn at this time until tomorrow morning at 9:30.
(At 1630 hours, 24 July 1947, a recess was taken until 0930 hours, 25 July 1947).
Official Transcript of the American Military Tribunal in the matter of the United States of America against Josef Alstoetter, et al., defendants, sitting at Nurnberg, Germany on 25 July 1947, 0930-1630, Justice James T. Brand, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal 3. Military Tribunal 3 is now in session. God save the United States of America and this Honorable Tribunal. There will be order in the court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: My it please your Honor, all of the defendants are present in the courtroom with the exception of defendant Engert who is absent due to illness.
THE PRESIDENT: Defendant Engert is excused. You may proceed with the examination of the defendant Lautz. Just a moment. The question has arisen in the minds of the members of the Tribunal as to whether it would not make for more orderly procedure if a slight change were made in the order in which the defendants present their cases. We wish this morning to suggest to defense counsel that the three defendants who were judges in the special courts should present their cases at the end rather than having them intersperced with the cases involving a different type of issue.
Our suggestion would be that the defendants Rothaug, Cuhorst, and Oeschey should present their cases one after the other at the end of the other defendant's cases.
We shall be glad to hear the views of the defense counsel involved as to whether that might not make it easier for all parties concerned to appraise the evidence. We will not make a ruling on it at this time, however. I think the only result would be that there would be a longer period of time intervening prior to the Rothaug defense if this procedure were followed. Of course, that would move the other cases up correspondingly.
We should like to hear what counsel thinks about that before we rule upon it.
EARNST LAUTZ - Direct - resumed BY DR. GRUBE:
Q. Witness, yesterday at the end you were stating your opinion as to how the transfer of competence in the cases concerning the 20 July to the People's Court came about. What was your personal attitude to this transfer? In regard to this point I merely want to address one more question to you.
The basis for the competence of the People's Court in these cases was, however, possible by law, wasn't it, and was also carried out in accordance with law?
A. It became possible by having the participating soldiers expelled from the Wehrmacht by an honor court and thereby made them into civilians.
Q. In that connection I want to refer right away to the affidavit of Dr. Roeder and go into detail. It is Exhibit 46 of the Prosecution. Roeder states in his affidavit that in 1944, after the attempt of the 20 July 1944, the jurisdiction of political cases was taken away from the Administration of Justice of the Wehrmacht from the Justice authorities of the Wehrmacht. Please comment on this.
A. By the document which was already mentioned during my examination yesterday -- that is NG-416, Exhibit 44 in Document Book 1-B -- it is evident that this measure which the witness Roeder testified to also was due to the influence of the Thierack Ministry. From the witness Lehmann, who has already testified before this Tribunal on this question, I had found out already a long time before that such plans existed, but I never considered it possible that they would be Carried out. However, this exhibit taught me the opposite. This problem was not as follows, that material reasons for it existed. How ever, it may be that one did not trust the Wehrmacht Justice authorities, but I see no read on for that.
From the fact that only political cases the Minister of Justice had to make a choice as to which of them he wanted to submit to the General Administration of Justice, it was clearly apparent that in this way a political influence on the Wehrmacht was supposed to be gained.
It is a fact that not a single one of these cases came up for trial and the reason for these are two fold: first, the extraordinary difficulties, for example, in regard to cases of undermining of military fighting force which had occurred at the West Front or on the Fast Front or in Italy to bring these cases shortly for trial in Berlin. Above all, however, the reason was that the course of the events was so fast and brought about the collapse and also there the collapse of the Wehrmacht Administration of Justice.
Q. Witness, the trials against the participants in the attempt of 20 July 1944 and against the circles who were in back of these criminal people took place under the presidency of Freisler before the first senate of the People's Court. It is correct that in the first cases you yourself represented the prosecution in the trial?
A. Until about the middle of October 1944 I myself took part in all the trials personally because, first of all, I had an express order by the Minister to do so and, secondly, I did not want to turn this difficult and thankless task over to any of my officials.
Q. Please comment on Prosecution Exhibit 192, Document NG-1019.
A. The treatment of not all but of some cases by Freisler, as presiding judge of the first senate, was humiliating for everybody who thinks in a decent manner, not because of the result because in view of the facts the result could hardly be different. Most of the defendants also confessed their deed and did not try to deny it, and they said expressly that they had been conscious of the fact that if their plan should fail they would lose their lives.
But the scolding and debasing manner in which Freisler treated some of the defendants brought about the unpleasant picture which the film portrays.
Q. Did you not take any steps against this manner of conducting a trial which Freisler applied?
A. Immediately after the conclusion of the first session I went to see Thierack and told him that things could not go on in this way and asked him to exert some influence on Freisler. He told me that he would first of all call Freisler to account, and secondly, he would soon appoint a second presiding judge who would have to alternate with Freisler in presiding over the trial. In so doing he asked me whom I considered to b e suitable as presiding judge. On this occasion I called his attention to the then senate president Hebelung because his quiet and factual manner of treating a case had come to my attention at a former trial.
Q. Witness, did you not also call Freisler himself to account?
A. On the following day I had a serious clash with Freisler. I went to see him in his office and submitted a book to him which had the title "Honor Protection in Criminal Proceedings" -Ehrenschutz im Strafverfahren -- It was a collection of articles which concerned themselves with the protection against insults in criminal proceedings. Freisler had written an introduction to this book in which, in a very emphatic manner, he pointed out that the defendant also in particular in any case, as long as he had yet been condemned and regardless of what charges were raised against him in the trial, is to be regarded and treated as an honorable man.
I put that article to him. He became embarrassed and told me only that in political cases other laws were ruling some times. Nevertheless, it was not a rule that he became guilty of such excesses, as was shown in this film which only portrays some, if I may say so, dramatic climaxes.
Q Witness, may I ask you here....the film laster for forty-five minutes, as you know. To how many different cases did this film refer?
A The film which was shown to the Tribunal contains excerpts from about four to five different trials. They lasted altogether about fifty hours -- forty to fifty hours in session. From the entire film of the trial a German short film was already produced, and that also was put together in the same way as the one that was shown here. I saw this German film, and it, too, only showed the presiding judge. Never, however, the defense counsel or the public prosecutor.
Q By the way, how did the defense counsel behave in the cases concerning the 20th of July?
A The majority of the defense counsel made excellent statements in their final pleas, and they were never interrupted in their final pleas, not even by Freissler. By questions during the trial they also were given an opportunity to find out what they wanted to know.
Q The witness Wergin, in his affidavit, Exhibit 146, that is, Document NG-403, and on the occasion of his examination during cross examination stated that you, as far as he had heard in regard to the participants -- had been in contact with the participants of the 20th July 1944. Can you explain how that rumor arose?
A I can explain it only by the fact that I was very good friends with the Staff Judge of the OKW, Dr. Sack -- Colonel Sack. I had a great deal to do with him officially and I got to know him as a man who saw to it energetically that the many signs of corruption which were felt, unfortunately, in the Wehrmacht during the course of the war, that Sack prosecuted these exesses with energy. Moreover, he was a very intelligent man politically, who prevented many of his acquaintances, and friends through political advice from exposing themselves politically.
Only after he was arrested in September 1944 did I find out that on the occasion of the attempt he worked together, closely with Colonel Staffenberg, and I only heard here in Nuernberg that shortly before the collapse, without a trial before the court, the Gestapo shot him to death.
Q Shortly before the 20th of July 1944, did you not have a discussion with Dr. Sack, the significance of which, however, you did not realize at the time?
A That is correct. Perhaps I may say the following in regard to this. This case is connected with the case -- the Kiep-Solf case. Kiep had been employed in the OKW and was well acquainted with Sack. Shortly before the trial Sack came to see me and made inquiries as to how the case was proceeding, as far as Kiep was concerned. I told him what he wanted to know. Then he continued the discussion in approximately the following manner: He said that he had just come from Paris. There he had had a conversation with General Fieldmarshall von Rundstedt. On this occasion von Rundstedt had shown him a letter by the former Mayor Goerdeler, in which Goerdeler told Fieldmarshall von Rundstedt, between the lines, that the war could not have a good outcome any more, and that it was about time that the Wehrmacht undertook something. Now, Sack asked me whether, in the files of the Peoples Court, the name of Goerdeler appeared as being suspicious in some way or other. If so, it was his intention to prevent Fieldmarshall von Rundstedt from carrying on a correspondence with a man who, was already a suspicious character for the police, and to warn Field marshall von Rundstedt. I had full understanding for this, and therefore told Sack which facts per se could be used against Goerdeler were not known to me so far from the files. Nevertheless, however, from the Kiep-Solf case so much could be seen that in the conversations of the accused persons the name Goerdeler was mentioned as one of the men of the future.
And that, perhaps, was reason enough to call this to the attention of Fieldmarshall von Rundstedt. And Sack wanted to do that. Only a longer time afterwards did it become clear to me, especially after I found out about the arrest of Sack, that that inquiry had quite different connections; that, apparently, it was aimed at warning Goerdeler. In fact, during the days of the 20th of July Goerdeler was not in Berlin, and for a time he had disappeared.
DR. GRUBE: May I here interpose a brief remark. By the film which the prosecution showed, apparently the defendant Lautz also was supposed to be quite responsible for Freisler's manner of conducting the trial. Therefore, defendant Lautz requested to me to offer him an opportunity to make some brief statements as to how he himself acted. I beg the pardon of the Tribunal if this perhaps goes into some greater detail than would be absolutely essential.
BY DR. GRUBE:
Q Witness, how did you yourself, act in the trials regarding the 20th of July, and how did you, during these cases, conduct yourself?
A I myself worked on all of these cases personally; at least I supervised them directly. And I believe that in doing so, as well as during the trial, I made efforts to appear completely factual.
Q Can you give examples of your behavior during the trials? May I just remind you of the Hoeppner case.
A Immediately, in the first trial against von Witzleben and others, during the examination of the former Generaloberst Hoeppner an incident occurred. Hoeppner described this meeting with General Olbricht shortly before the 20th of July, at which time all details of the action were discussed and were he received exact instructions as to how he was to behave on the 20th of July as the one who had been selected as the Chief of the home Army, that would replace the one that would be overthrown.
He continued these statements by saying, approximately the following: After this discussion he had returned home very excited, and had decided t o tell his wife about this affair. At that moment I immediately jumped up, interrupted the speech of the and guided him to another subject, because it was clear to me that defendant, every word that he would say from now on would involve the wife of the defendant and his family, and would involve a serious danger for them, but that it could not help him at all.
Q May I then remind you of the Bismarck case?
A Von Bismarck had been Regierungs President in Potsdam and was a good friend of the Police President von Helsdorf of Berlin. Through his close relationship with the latter, he had come under suspicion of having participated in the conspiracy. It was evident from the files that he had denied this at first. Then, however he admitted that, in a manner which made it apparent that something must have occurred in the interim. In his own interest, I considered it essential that the question of his guilt or lack of guilt should be clarified by a court proceeding.
However, I called to the attention of the presiding judge that this contradiction existed and that something would have to be done before the trial. Therefore, one hour before the trial began, we ordered the Chief of the State Police to come to us, and out of his mouth we heard, at least in a veiled manner, that these confessions had apparently not been made voluntarily. Thereupon I confronted him with the choice of either agreeing to the fact that the second transcript would be disregarded, or that evidence in regard to it should be brought in during the trial. Freisler was of the same opinion in the case. The transcript was not used; I asked for an acquittal of the defendant, and the Court acquitted him.
The third and last case which I may, perhaps be permitted to report to the Tribunal because it is especially tragic--is the case of Lieutenant Lindemann. Lieutenant Lindemann was the son of General Lindemann, in the General Staff, who had been one of the most direct participants in the preparations fro the attempt and in the attempt itself. General Lindemann had escaped being captured some time later on the fight. Later, when he was captured, it was discovered that before the attempt, in quite clear language that could not be misinterpreted, he had informed his son of the impending event in all details. This forced us to indict Lieutenant Lindemann because he did not report a crime.
Freisler considered the matter as being extraordinarily serious, and only with the utmost effort, through very long statements which went into great detail as to ethical considerations during the trial, did I succeed in achieving the fact that the young officer got away with a prison sentence only.
Q As is known, Hitler had ordered several different measures which would contribute to the desbasing of the condemned persons of the 20th of July. What was your attitude toward these measures? First of all, what was your attitude toward the question as to whether the death penalty was to be executed by hanging?
A This manner of carrying out the sentence seemed to me personally to be the most unbearable factor of this whole affair. Therefore, I got in touch with the Commander-in-chief of the Wehrmacht, and also with General Reinecke, and I initiated an appeal, to no made to Hitler, which was successful to the extent that the Minister, in individual cases, was permitted to order the defendants executed by shooting especially in the case of soldiers, and that what happened subsequently.
The second factor was that if a person was condemned, of necessity it was stated that the property of the condemned person was to be confiscated by the Reich; and it had been ordered by higher authorities that this measure be carried out to the limit, even to the extent that the most personal mementos of the condemned persons should be taken away from the heirs.
Q Can you state an example? May I remind you of the Witzleben case?
A In one case the matter was a follows: The person concerned had a gold watch in his possession which one of his ancestors had received as a present from Frederick the Great. Even this watch was not supposed to be given to his relatives. In this case I received some help via Obergruppenfuehrer Breithaupt, who had been appointed to take care of the possessions of the families, and I succeeded in preventing matters from being carried out so severely.
The third and final factor was that I prohibited my prosecutors-who had to be present at the executions--from taking any steps on their own part if they should notice that, in spite of the prohibition, a clergyman should attend to minister to the condemned persons.
Q Witness, did you not also stop trials, concerning the 20th of July, before an indictment was raised before the People's Court?
A That happened to a considerable extent, and it was due to a special incident that this was caused.
Q May I first, perhaps remind you of the Boermann case?
A In the trial against Goerdeler, I had noticed, with displeasure, that Goerdeler had stated, without it doing him any good at all, all the names of the persons who had harbored him since his flight from the 20th of July until he was captured; and he even stated why he believed that they knew to what extent he was connected with the events that had occurred. This readiness to mention all the names was apparently the reason why Minister Thierack, after the sentence was pronounced, permitted the Gestapo to interrogate Goerdeler for several weeks longer. During these interrogations, Goerdeler, to a large extent, continued the name further persons who so far had not been under suspicion at all. He described their conversations with him, which in part had occurred years ago, some as far back as 1941. Even if he had an excellent memory he could not have remembered them exactly unless he had kept a diary, and this was not the case.
The result was that numerous further arrests tool place, and additional trials. In these trials I emphatically r presented the opinion that if such testimony was not supported by other evidence, it did not justify an indictment, and I succeeded in every case.
As to the Boermann case, he was a professor in Halle, who was also--by Goerdeler--brought into close connection with a conversation which had the character of high treason and which was supposed to have taken place in Halle, and which probably did take place.
To that extent this defendant differed, is an unpleasant way, for example from General von Stuelpnagel who, had been charged with the responsibility that if the attempt should succeed, he, together with Rommel, should bring about the understanding, or, that is to say, the surrender to the Western Powers, and who stated in regard to this during the trial, merely, "I am responsible; no other officer or marshal has anything to do with this."
Q The Prosecution has submitted the Gruenwaldt affidavit, Exhibit 283, in which the Engelhorn, Schack, Schoene, and other cases are discussed. Please comment on these cases and state your opinion.
A This is the last point on which I would like to comment. The Engelhorn cases concerns a group of seven officers from three different offices. Schack and Engelhorn belonged to the Berlin Command and were the subordinates of General von Haase. All these officers were charged with having, on the afternoon of the 20th of July 1944, carried out military actions directly, and with having cooperated in carrying them out, which would bring about the military occupation of Berlin, especially the occupation of the government quarter, and which aimed at the arresting of all of the ministers; and they were charged with actually having begun this, but having only been able to carry it out in part.
The first trial began about the middle of September. During those days I was prevented for the first time to appear personally at the trial because in the afternoon I had to take care of an urgent business matter of a different nature. Therefore I commissioned a very reliable first Public Prosecutor to represent me. But during the morning hours I listened to the trial, was present at the session. The defendant Nobelung was presiding judge. The session was very quiet and conducted in an objective manner. They spoke almost too much. When I left around noon one could not yet judge what applications for penalty should be made. Therefore I gave the commission to the prosecutor to call me up after all the evidence had been submitted and to ask me for instructions. He did so around six o'clock in the afternoon and told me that he intended to ask for the death sentence against four of the defendants; against three, however, to ask for an acquittal. Among those three were Schack and Schoene. He added that the acquittal could not be founded convincingly, perhaps it was not quite without doubt, but anyway he would ask for an acquittal, and I authorized him to do so. After about an hour he informed me that he had made the applications as I had authorized him to do but that the court had interrupted the trial in order to pronounce the sentence the following morning. The next morning, in order to hear the judgment, I went to the Supreme Prussian Court of Appeal, the Kammergericht, where the trials were being held, and there I met my prosecutor, who told me the following, that he had just received a notification from the Gestapo and that new files had arrived which were important for the case. Moreover, the presiding judge, after he had stated the reasons for his application and after the court had adjourned had told him the following.