In spite of everything unfavorable I knew about Thierack in spite of all the brutality of his character of which I did know, I would still not have believed is possible that he, as the responsible Minister of Justice, would play a part in such matters. As for the reasons for those transfers, I occasionally did hear at the Ministry of Justice that the Minister was of the opinion that the labor potential of those prisoners--who were separated from other prisoners and had to be housed in prisons of their own--was not fully utilized in these institutions. At these occasions I also heard that it was most definitely not the intention to treat political prisoners as asocial elements. That that evidently was not done is revealed by document Exhibit 271, NG-557. That is in document book IV-B. That extensive document constitutes part of of the prison register at Ebrach prison, a register which was kept until the collapse and which shows that of the 74 prisoners of the People's Court who were serving a penitentiary term there for preparation of high treason, not one was transferred to Mauthausen, while a number of ordinary criminal cases, according to that prison register, were transferred to Mauthausen.
Q What can you tell us in this connection about the Leb case, Exhibit 309?
A I have already said something about that in connection with the NN problem.
Q What can you tell us about Exhibit 266?
A That is the letter to Rodgau. The Rodgau letter was not signed by me, I have seen it here for the first time. It seems to me that its only purpose was postpone after the war, the question of the term that was to be served. However, the defendant who wrote that letter is best able to testify as to that.
Q What experience did you have with the Gestapo in general?
A Concerning that point, I would ask the Tribunal to allow me to take some more lengthy statements.
For a correct description of the relationship between the public Prosecution and the Police, a very distinct separation needs to be made. First of all, a dividing line has to be drawn between the relationship with those agencies of the Gestapo which dealt with preventive custody and, through this with concentration camps. The Public Prosecutor had nothing to do with that type of relationship. Their contact was limited to relationships with those agencies of the Gestapo which worked as police investigating agencies. I want to say the following concerning relations with those investigating organs of the police. The Code of criminal procedure of 1877, not legally, but in effect, had been changed by conditions which developed in the course of time. That development began with the changeover in 1918 when the Minister of the Interior became the most powerful man in the state. As a result, he devoted his particular attention to the training and equipment of the police, and he equipped the police with all technical facilities of modern times. In 1933, therefore, the German police--that is to say, the criminal police as well as the political police had reached a considerable level. Naturally the new rulers after 1933, could not do without that police machinery and they took it over as it was. As was to be expected, they purged as they turned it--the body of officials of those elements who, in their opinion, were not bearable.
In some cases they put in new officials who were politically reliable, but whose qualifications were anything but adequate. That is how one can explain the fact that the witness Brem testified that the police transcripts which he saw had varied greatly in their value. Since those days it was the task of the Public Prosecution mainly to examine those police investigations for their contents with great care and supplement them through investigations instituted by a judge and possibly also through investigations instituted by public prosecutors. That, in the case of the Reich Prosecution, was done on a scale such as was at all possible with the personnel that was available. If it was impossible to examine all cases, that was due to the war, as there were no longer so many judges and public prosecutors avail albe, but the most important cases were always checked by interrogations instituted by the Prosecution by inspecting matters and by taking any other steps that might appear necessary. As for my personal knowledge of concentration camps, as I have already said, in my official capacity I had nothing to do with concentration camps. I should like to state the following: I never had any doubt that the transfer of a prisoner from the sphere of the Administration of Justice to a concentration camp did not improve the situation of that prisoner. I was aware of that for two reasons. The first reason was the fact that protective custody was imposed for an unlimited period of time, and that no legal remedy could be applied against it. The fact that the prisoner had a right to complain to the RSHA in Berlin, the fact I did not consider to be a legal remedy because it was that very agency which had imposed protective custody. Secondly, I knew from my experience in Berlin in the days before 1937 that a prisoner in a concentration camp was not as safe from occasional ill treatment as he would have been in a prison under the Administration of Justice where disciplined personnel, with the exception of a very few cases where severe punishment was imposed, had been trained never to touch a prisoner.
That under a secret system some concentration camps during the war were used for mass extermination I did not know during the war.
Q. I am now coming to another point. That is the so-called more severe interrogations. What can you tell us about that subject?
A. The more severe interrogation was an institution which caused much worry to the Administration of Justice. What happened was this: I believe already before the war, but I cannot name the exact year, Hitler after he had received a report from Himmler, had told the chief of the Sicherheits Polizei (Security Police), that in certain cases he would be entitled -- that is, in cases where the issue of the interrogation was very important for the safety of the state -in the course of interrogating such a prisoner to exercise compulsion, duress, for the type of which certain forms were prescribed. But great emphasis was placed on the fact that such a measure was only admissible as long as the police alone was in charge of the prisoner. The Minister of Justice had been informed of that in order that in these cases which had been legalized by Hitler, the police officials who had to carry out such a measure would not be exposed to the danger of criminal prosecution.
Q. Was the procedure in such cases made safe by special directives?
A. There were detailed written instructions on this procedure which, naturally, were known to all public prosecutors and judges who dealt with more important criminal cases and which was also known to such officials in the Ministry who dealt with such cases. The instructions said that first of all the more severe interrogation could only be approved from case to case by the chief of the security police. Secondly, that it was only to be applied if the prisoner was entirely in charge of the police and in their custody. And thirdly that when later on the results of such interrogation were passed on to the Administration of Justice a special letter which was to be treated as secret was to notify the Administration of Justice of the fact that the more severe interrogation had been applied.
Q. I have here a document from the IMT trial. I am referring to US Exhibit 507. That document refers to the more severe interrogations and refers to the regulations passed by the RSHA for the Reich territory. Witness, may I ask you whether the regulations as provided for here in respect of notifying the Public Prosecutors about more severe interrogations are the ruling of which you spoke just now.
THE PRESIDENT: May I ask you a question, Dr. Grube? You are not referring to an exhibit in this case, are you?
DR. GRUBE: No, that is an exhibit from the IMT trial.
THE PRESIDENT: Thank you.
A. The decree in this form I am seeing for the first time now, but the principles of this decree are in accordance with the things which I did know.
Q. It says here if a prisoner who has been subjected to more severe interrogation is brought before a judge, the competent senior public prosecutor has to be informed in writing by way of a secret Reich matter that the prisoner, for reasons which must be stated briefly, was subjected in the manner mentioned to more severe interrogation .
Q. Witness, testimonies which were given as a result of such interrogations, how were they evaluated by a court?
A. The letter by which the Gestapo had announced that more severe interrogation had taken place was submitted to the court when an indictment was filed so that the presiding judge always, even if the prisoner until then had not referred to the fact that he had been subjected to pressure, knew that in fact that had happened. If at the trial the defendant withdrew his statement and if no further evidence came out, either through witnesses or through testimony given by codefendants, the transcript which had been compiled on the basis of the more severe interrogation was not utilized. The last case which I can remember from the jurisdiction of the People's Court occurred at the end of 1944 and beginning of 1945. The defendant was a young worker who at a fairly big industrial enterprise in Silesia had committed rather dangerous arson.
He had been subjected to the more severe form of interrogation because the police assumed that there had been other men involved who for political reasons intended to carry out sabotage plans on a large scale.
The defendant withdrew his testimony at the trial and the Fourth Senate acquitted him.
Q: Witness, were those cases where the Police applied a more severe form of interrogation, according to your observation, frequent?
A: Measured by the total number of cases with which we dealt, they were not very frequent.
Q: Exhibits 364 and 488 refer to talks which you are alleged to have had with the Gestapo and investigating judges. Please comment on that.
A: Those conversations had for their sole purpose to make sure that the investigating judges' work was restricted for practical purposes to the difficult and important cases.
Q: The Prosecution submitted Exhibit 32. That document quotes a decree by the Minister of Justice of 10 March 1937 which says that in the interest of as close a collaboration as possible between the Public Prosecution and the authorities of the Gestapo, the Public Prosecution whould in the future direct requests for investigation of denunciations of political contents via the competent Gestapo agency. What have you to say about that?
A: That decree did not apply to the Reich Prosecution. That is evident from the decree as such. It is not directed to me.
Q: And, moreover, it was issued at the time when you were not there?
A: Anyhow, I did not proceed on the basis of those principles.
Q: What were your relations with the police?
A: Even before 1933 I limited my relations with the police to the scope which was conditioned by service necessities.
I did not entertain personal relations with them. I never exchanged one single word with Himmler. I met both Heydrich and Kaltenbrunner once at a discussion at the Ministry of Justice where the Minister presided. The other so-called leading men in the in the State and Party, only a very few of them did I get to know through my official capacity. I did not entertain personal relations with any one of them.
Q: Why is it that you had no close contact with the leading men of the police and so forth?
A: It is perfectly easy to explain that from the fact that I took the point of view that for the clarification of basic questions between the police and the Administration of Justice only my superior, the Minister, was competent for such clarification.
Q: I am now coming to the jurisdiction of the People's Court in general. The Prosecution, in Exhibits 172, 124, and 378, has submitted figures on death sentences. What have you to say about that?
A: The figure in the Thierack report, that is, exhibit 172, does not differ much from the figure in the business report of the People's Court, that is, Exhibit 124. That can't really be right for the Thierack report includes the whole of the Reich, that is to say, all the district courts of appeal including these in the incorporated territories in the East, and those in the incorporated territories in the East did produce a fair number of death sentences. Therefore, the figures in the Thierack report should be higher than those quoted in the business report of the People's Court or those in the business report by the People's Court should be lower than those given in the Thierack report.
As such statistics were compiled by subordinates who, as a rule, did not apply great care, mistakes are, after all, not impossible.
Q: Witness, if you were to assume that the figures in the People's Court report are correct, would you then, in view of your particular knowledge of the conditions, say that you. can deduce from that certain opinions on these sentences passed by the People's Court?
A: The figure which has been computed for the People's Court, from the point of view of present days, naturally appears terrifically high, but one must bear in mind that in many cases the death sentence was mandatory for the People's Court and that only the most serious cases were brought before the People's Court and that after all those cases referred to an area which was inhabited by nearly 90 million people. As to the figure of the applications for death sentences made by the Reich Prosecution, one cannot draw any conclusions from that figure. On the other hand, the business report by the People's Court, that is exhibit 124, shows how the senates differed in their sentences. Thus, for example, the first senate passed one death sentence to every two cases; whereas, in the case of another senate there was only one death sentence to every four sentences. The Witness Buchholz already testified as to that here.
Q: Do the figures in Exhibit 124 show any other peculiarities?
A: Yes, they do. They indicate that the first senate dealt with almost 50 percent of all cases which came before the People's Court. It could only do so because the same senate could sit in different compositions.
Q: Were any steps taken to see to it that business was no longer distributed so unevenly among the various senates?
A: The vice president of the People's Court and I, myself, several times called on Thierack. He did promise to remedy that state of affairs, but evidently he did not take any steps, for Freisler had much support from Goebbels.
Q: And what attitude did you take about the sentences passed by the first senate and other senates when you considered the sentences they passed too severe?
A: According to the facts of the case, there were only three ways open to me. I could suggest a clemency plea. I could suggest that extraordinary objection might be made and I could consider reopening of the trial. But, in all such cases, I only had a chance of success if there were proper reasons for taking such steps. In my earlier examination I remarked on that. For the rest I wanted by transferring cases to lower courts, to keep as many cases as possible outside the People's Court.
Q: In the cases with which Exhibits 128, 132, and 133 deal, the prosecution assumed that the defendants had attempted to join the Polish Legion. The People's Court, however, passed a sentence in those cases, contrary to the other cases, for having injured the interests of the Reich, and the fact that they had left their places of work and had intended to remove themselves and their labor potential from the Reich permanently by escaping a broad injury to the Reich interests was based on such plans. What was your attitude to this sentence?
A. Contrary to the indictment and contrary to the application made by the prosecutor at the trial, those sentences were passed. When I heard of such jurisdiction, I did not at all approve of it. Without having the files of the cases given to me, it is very difficult for me to say what steps I actually had taken or what steps my representative took when he should have dealt with such cases. In the case of Meslinski and Stefanowitsch those two were condemned to death, whereas Maschnik and Denschewski got away with prison terms. If in other words, in the case of Denschewski and of Meslinski, I possibly did not suggest a clemency plea, my reasons must have been these. In both cases, according to the findings of the court regarding the facts more had come out than simply that the defendants had escaped from their place of work for the purpose of escaping to a foreign country. Meslinski besides, when he confronted German Border officers at the German border, attacked that officer, whereas Stefanowitsch had tried once before to cross the Danish border and moreover he had persuaded another person to leave his place of work. In view of these facts, if I did not make the suggestion for a clemency plea, I possibly assumed that such a plea would have no success.
Q. Witness, earlier you mentioned that as far as possible you transferred cases to the lower courts and that whenever possibly you suggested clemency pleas; did you adhere to that practice until the last moment?
A. Yes, I did , but in view of the propaganda which was in fullest swing, for a severe course during the total war and in view of the the Thierack decrees, which were falling one upon the other, I was less and less frequently able to succeed with my intentions. In part that was due to my dependant position as a public prosecutor, in part it was also due to the fact that it was very difficult to do anything with such persons as Thierack and Freisler.
Q. Why did you not draw your consequences then?
A. Since my attempt on 30 September 1941 to leave my office, an office which I had not tried to obtain and which I was ordered to assume by my minister, since that attempt had failed, I had to put up with that state of affairs, all the more so as my friends, Dr. Sack and Lehmann from the High Command advised me to stay. Later on I repeat edly asked myself whether I should not force my resignation. I did not do it because of the reason that I considered my self irreplaceable and I did not do so to support the Hitler regime and the Thierack administration of justice. I stayed in this case because I considered it the duty of every civil servant and I still consider it the duty of every civil servant now not to let down his native country at the moment of extreme danger and to stay on his post as long as he may still hope to be of use. With that hope I stayed entrusting to the experience and judgment which I had acquired in my long period of service.
Q. I have now concluded my direct examination.
BY DR. ORTH for the Defendant Altstoetter:
Q. I would like to put three questions to the witness. Witness, the prosecution has in reduced document NG-7-2, Exhibit 481, which is a letter by the defendant Altstoetter, which refers to sentences passed on defendants who committed crimes in Southern Corinthia. The letter says that the minister had taken care of the matter and had issued certain directives to the Chief Reich Prosecutor of the People's Court; can you remember that matter?
A. Yes.
Q. Would you please give us a brief account?
A. In Southern Carinthis, that is to say in that part of Austria, which at that time belonged to the German Reich, bands had formed of German soldiers who had deserted and these bands constituted grave danger to the population, because they attacked the farms, set fire to them and committed robbery. In some cases the bands were supported by the local population.
Some of those people who had given support to the bands had been arrested and investigations had been conducted and the result had been handed to the Reich prosecution Office. In view of the fact that the Reich prosecution was heavily overburdened with work no indictments had been filed.
During the conference in May of 1944 at Kochem Castle, I don't remember the exact date, one evening the minister asked me to go to see him in his private room. Several other people from the Ministry of Justice were there, among the defendant Altstoetter. The Minister in a very unfriendly manner told me that the Gauleiter in Carinthis had complained that those proceedings had been delayed. I told him that I knew all about these proceedings and they would be dealt with with whatever speed which the work at the Reich Prosecution office permitted. As far as I remember, the minister then requested that the letter be written to the Gauleiter to calm him down.
Q. Did Altstoetter deal with that matter in any official capacity?
A. According to the distribution of work at the ministry, he did not.
Q. Thank you.
THE PRESIDENT: You have about three minutes, if you will watch the clock you may proceed.
BY DR. KUBUSCHOK: (Counsel for the defendant Schlegelberger)
Q. First of all, I would like to ask you a question which refers to the defendant Schlegelberger. During the direct examination, you spoke about the conversation you had at the end of September, 1941, in the matter of the Elias case; could you give us some particulars about that case.
A. You mean about the contents of that conference?
Q. Yes, I mean the conference you had with Schlegelberger about the Elias case; what attitude did Schlegelberger have about that case, did he agree with the solution which had been reached; give us particulars if you should know them please?
A. When I had interrupted my trip and called on the defendant Schlegelberger, it was about lunch time on 3 September 1941, I found him in a state of great excitement about Thierack's attitude. To begin with, he asked me to make an attempt to reach Thierack at the People's Court and to demand of him that he should take me along with him to Prague as the chief Reich prosecutor. The attempt failed because the plane had already had already left with the Senate. I then went to see Schlegelberger again and in my presence he rang up Under Secretary Stuckart, who I believe was competent for administrative matters in Bohemia and Moravia. Schlegelberger asked him to demand of Heydrich in Schlegelberger's name that the chief reich prosecutor should be reinstituted in his rights. After a little while Stuckart phoned back and said that had been refused by Heydrich.
I then asked the defendant Schlegelberger at once to let me resign from my office as nobody could expect of me that after I had been injured in that way I should continue in office, and that at the side of Thierack, who, by his unusually treacherous attitude had caused this breach. The defendant Schlegelberger kindly, but with great decision, told me that he could not comply with my wishes. I was irreplaceable in my office, and I simply had to make that sacrifice to the Administration of Justice.
Q I have furthermore two questions which refer to the defendant von Ammon. During your examination you several times mentioned that you dealt with suggestions about the treatment of NN matters and approached Herr von Ammon in such matters. Why was it Ammon to whom you turned? Was it that you considered him the competent person to deal with NN matters at the Reich Ministry of Justice?
A No, I did not, for the defendant von Ammon had no authority for independent decision, but I knew that he as one says with us, was a decent guy, and because in these two cases I wanted to see to it that a more lenient attitude was adopted. I knew that he would work towards that end, and that was why I approached him.
Q Did you, during your period of office as Chief Reich Prosecutor, ever receive a letter from the Reich Ministry of Justice which bore the signature of von Ammon?
A No.
DR. KUBUSCHOK: Thank you. That is all.
THE PRESIDENT: The time has expired; we will recess for fifteen minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY DR. SCHILF (Counsel for the defendant Klemm):
Q: Witness, you were present in the courtroom when the defendant Klemm was in the witness box. He commented on how, in 1942, he saw Thierack. This concerned his remark that in the Party Chancellery he had to give several opinions on personnel. That was in 1942. I now ask you, how did Thierack, as President of the People's Court, conduct his trials? Did he try cases objectively and factually?
MR. KING: One moment, please. I object to that question, your Honor. We have had testimony without end on how these trials were conducted. The question is too general to elicit any sort of useful answer for our purposes here.
THE PRESIDENT: What is the purpose of counsel in inquiring concerning the conduct of Thierack? We are in very serious doubt as to the propriety of the question. Now will you state it briefly? Thierack is not a defendant here, and we do not see the relevancy of your question.
DR. SCHILF: The defendant Klemm, during direct examination, was asked by me about this, and during the cross-examination the same question again arose, that in 1942, when he was in the Party Chancellery, he gave a personal opinion about several jurists. During cross-examination he was asked whether he had given a favorable judgment about Thierack -- that was in 1942 -and this was in connection with the fact that Thierack might have been a candidate for the post of Minister of Justice. The defendant Klemm, during cross-examination, affirmed this question.
THE PRESIDENT: We permit you to take a brief answer on that point.
Mr. Witness, you can answer briefly as to the manner in which Thierack conducted his cases, for the purpose indicated.
THE WITNESS: But I have to answer it completely.
THE PRESIDENT: No, you don't have to answer it completely, no.
THE WITNESS: In 1940 or 1941 I was once present during a session when Thierack was presiding judge, and I was interested in this case, because it was a case of treason. I did not have anything to object to in this manner of conducting the trial, and the defendant was permitted to have the last word. The oral opinion, however, contained phrases as are also indicated in documents which the prosecution has occasionally submitted here.
BY DR. SCHILF:
Q: Did you ever hear complaints about Thierack's manner of conducting the trial, especially that he restricted the defense?
A: I did not, but I would not have been the competent office for receiving such complaints.
DR. SCHILF: I have no further questions.
DR. WANDSCHNEIDER (Counsel for the defendant Rothenberger): May I address three brief questions to the witness?
BY DR. WANDSCHNEIDER:
Q: Witness, in the discussions which you had with Thierack in the matter of the People's Court, did Dr. Rothenberger ever participate?
A: When I was ordered to go to see Thierack in order to receive instructions or report matters to him in which he was interested, in the case of such discussions the defendant Rothenberger was never present.
Q: Thank you. Did you yourself carry on negotiations with Dr. Rothenberger about questions of personnel policy or questions of criminal law?
A: You mean in matters regarding the People's Court?
Q: Yes.
A: As to penalty cases which concerned the People's Court, I did not discuss those with the defendant Rothenberger, with the exception of one case. That concerned a complaint about the division of business made by Freisler and, on order of Thierack, I turned to Rothenberger with this complaint. He accepted my report and promised to speak to Thierack and see to it that something would be done about it.
Q: Witness, in the Ploetzensee case, did Dr. Rothenberger have anything to do with the execution of the sentence?
A: I am not in a position to know that; I only made the following observation. The order that I should keep out of that affair was given by Thierack from his apartment by telephone, and this was apparently due to the fact that two days before I had suggested to him that he should transfer the prisoners to Brandenburg because there they would be safe from the air raids. To what extent he further intervened, from his apartment, I don't know, of course.
DR. WANDSCHNEIDER: Thank you very much.
BY DR. SCHWARZ (Counsel for defendant Petersen):
Q Witness, did you know the defendant Petersen personally before this trial here?
A No.
Q Witness, during your activity as chief Reich Prosecutor at the People's Court did you hear that within the judiciary and the office of the Reich Public Prosecution there was considerable opposition against Freisler, who was then the chief presiding judge of the People's Court?
AAll judges and prosecutors who knew anything about their business agreed that it would be best if this man would disappear, and they also expressed this opinion.
Q Witness, did you know his two reporting judges, People's Court Judges Laemmle and Graeulich?
A I knew them.
Q Did you also know that these two Berichterstatter, reporting judges, turned against Freisler?
A They never made any secret of their dislike of the person of Freisler, not to me, either.
DR. SCHWARZ: Thank you very much.
BY DR. KOESSL (For the defendant Rothaug):
Q Witness, when did you first meet Rothaug?
A I saw Rothaug for the first time when on the first of June, 1943, he reported to me to assume his office.
Q Did you at any time find out anything about his official activity in Nurnberg, and if so, what?
AAbout his official activity in Nurnberg I was informed only by this trial. In Berlin I didn't hear anything about it. Nothing could be seen about if from his personnel files, either.
Q What experiences did you yourself make with him when he worked in your office?
A First I had the understandable worry that a man who for more than ten years been an independent presiding judge, would have difficulty in fitting into an office like the public prosecution, but Rothaug did adjust himself and never made any difficulties for me.
He was a very diligent, quick worker, and what I attached special importance to, was that he had an excellent knowledge of the files in every single case.
Q Was Rothaug a severe man?
A While he was working for me I certainly did not notice that he was excessively severe, and it may make use of a comparison, if I compare him with Ministerial counsellor Franfke who was in charge of the cases of undermining of military morale in the Ministry of Justice, I would even have to say that he was moderate.
Q Who was Franfke?
A I already said that Franfke was the Ministerial counsellor who, as closest collaborator of Thierack, was in charge of cases of undermining military morale in the Ministry of Justice. If one wants to know what he looked like and what his attitude was, it is done best by reading Exhibit 474. He wrote that. And decrees of that nature went to the subordinate agencies from him in large number.
Q Did Rothaug ever make a suggestion to you in order to stem the flood of cases of undermining of military morale?
A He once made the suggestion that a special committee of experts should be employed which would examine the case of undermining of military morale for the entire Reich under the point of view as to which cases were actually so serious that the People's Court would have to keep them. I once brought this suggestion up for discussion in the Ministry of Justice. However, it was refused because the Ministry of Justice did not want to give up being in charge of these cases.
Q What did this suggestion aim at? That is to say, what was the main reason which Rothaug stated for this suggestion?
A I told you that; a quick selection of the really important cases.
Q These efforts, however, had no success?
A No; I said that, too.
Q In your affidavit Exhibit 126 you made certain objections against Rothaug's activity.