The fact That the secretary orstenographer made copies only of the first sheet, indicates that someone was interested in the substitution of a new sheet. It is significant that the stenographer did not in fact copy even the first sheet. Had she been instructed merely to copy the first sheet, she surely would have copied the answers which appeared on the first sheet in which the doctor replied "ja" to the interrogatory. But she did not copy the answers and therefore did not accurately copy the first sheet. She omitted the only really important portion of the sheet which she did copy. She must have received instructions from some source to do so. The intent was clearly to prepare a blank, unfilled in sheet number one, and that sheet in its blank form was attached to the sheet, which contained the signature previously made by the physician. Again the attempt to mutilate the documents is clear, because if the sheet had been separated untentially then surely in reassembling them and again stapling them together they would have stapled the original first sheet to the original signature. But they stapled another sheet which they must have known was not the original, because it was in blank. Whoever say the original. first sheet knew that it was filled in with the answers "ja". The fact that the blank sheet was stapled on the signed second sheet indicates an attempt that a change should be secured in the answers, which proceeded the original signatures. We found it unnecessary to go further in our discussion of the matter. After these informal comments, the court will now read the judgment of the Tribunal:
NOW, at this time, the above-entitled matter coming on for hearing upon the Order directed to Dr. Hans Marx and to Mrs. Karin Huppertz, and each of them, to appear and show cause why they should not be punished for contempt, and the said respondents and each of them having filed their written answers to the charges on file herein, and the cause having been heard open in court upon the testimony submitted by the prosecution and by the several respondents and their witnesses, and the Court being advised; NO , THEREFORE, It is the judgment of the Tribunal that the respondent Dr. Hans Marx is guilty of the offense of contempt of court as charged in the petition and supplemental petition on file herein;
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Respondent Marx be imprisoned for a period of thirty (30) days in such place of confinement as shall be designated by the Marshal of this Court;
IT IS FURTHER ORDERED AND ADJUDGED that the said Dr. Hans Marx be and he is barred from further participation in the cause now pending before this Tribunal, and t, at he be and is excluded from the court room during the trial thereof;
IT IS FURTHER ORDERED that Dr. Heinrich Link be and he hereby is appointed chief counsel for the defendant Engert, and the respondent Dr. nans Marx is directed to deliver to Dr. Link all official records and files in his possession as attorney for the defendant Engert;
IT IS FURTHER ORDERED that execution of the sentence of imprisonment be and it hereby is suspended until the present employment of the respondent Marx as official counsel in the trial of any case now pending before any of the military tribunal s now sitting at Nurnberg shall be terminated; upon such termination the sentence of imprisonment shall forthwith be executed;
IT IS FURTHER ADJUDGED AND DECREED that the Respondent Mrs. Karin Huppertz is guilty of the offense of contempt of court as charged in the petition of the prosecution, aid that she be imprisoned fora period of ten (10) days in such suitable place of confinement as shall be designated by the Marshal of this court, having due regard to the sex of the respondent;
IT IS FURTHER ORDERED that the sentence herein imposed by forthwith executed, subject, however, to the condition that upon request of the respondent Huppertz, or of the prosecution, execution of the sentence may be postponed for a period not exceeding ten (10) days.
This ends the judgment of the Tribunal.
The provision with reference to the suspension of the sentence, in the case of Dr. Marx until completion of any official employment in some other Tribunal, is made solely because of the desure of the Tribunal that no action on its part should interfere with the rights of any defendant in any tribunal now sitting in Nurnberg.
Counsel may proceed with the main case.
MR. LAFOLLETTE: If Your Honors please, just for the record, I have now for distribution German and English copies of Exhibit No. 533 which was heretofore offered and introduced as evidence in connection with the cross-examination of the defendant Klemm. The court was kind enough to permit me to introduce this document NG-1943 before the documents were available for distribution. I hand them now for distribution in English and German. The interpreters do not need them but the reporters do.
THE PRESIDENT: The exhibits have been received.
MR. LAFOLLETTE: I just want the record to show that I am making distribution of the documents.
Likewise, if Your Honors please, Exhibit No. 527, which was read and introduced in evidence in connection with the dross-examination of the defendant Schlegelberger was permitted to be introduced without the documents ready. I have them now for distribution in English and German. The number is NG-839.
THE PRESIDENT: The number please?
MR. LAFOLLETTE: Exhibit 527.
JUDGE HARDING: The first one was exhibit 533?
MR. LaFOLLETTE: Yes, Your Honor. This completes everything to be done in connection with these two exhibits. Give an extra copy of the German to Dr. Schilf and an extra English copy to the Secretary General.
THE PRESIDENT: You may proceed.
DR. GRUBE: (attorney for the Defendant Lautz) I merely want to explain that I have no further questions for the re-direct examination.
My examination of the defendant Lautz is completed. I do not know whether anybody else has a question to address to him. Otherwise, I would now like to call the witness Helmut Boden.
THE PRESIDENT: Does counsel for any other defendant desire to examine the defendant Lautz?
MR. KING: Your Honor, we requested earlier that the defendant Lautz be recalled upon the submission of further exhibits. I was not clear whether the Court agreed to that proposal.
THE PRESIDENT: Yes, it was understood that we would do that.
MR. KING: In that case we have no further questions at this time.
THE PRESIDENT: I see.
DR. GRUBE: May I ask a question in relation to this matter. What time limit has been set inside of which the Prosecution, after the submission of documents, may recall the defendant Lautz for cross examination the cross examination should follow immediately upon the submission of the documents in my view.
THE PRESIDENT: We will make no special railing at this moment, but we think it entirely proper that first the Prosecution should have a reasonable time to examine the documents, and then should proceed with any cross examination they may have, promptly after opportunity to examine the documents has been given them.
DR. GRUBE: Yes. May the witness Lautz be excused then; and, may I call the witness Boden.
THE PRESIDENT: Yes.
HELMUT BODEN, a witness, took the stand and testified as follows:
BY JUDGE HARDING:
Hold up your right hand and repeat After me the following oath:
I swear by God, the almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
You may be seated.
DIRECT EXAMINATION BY DR. GRUBE: (Attorney for the Defendant Lautz)
Q. Witness, please state your full name.
A. Helmut Boden; attorney and notary at Berlin-Wilmersdorf.
Q. Were you a member of the Nazi Party?
A. No.
Q. Since when did you defend clients before the People's Court?
A. Since the institution of the People's Court -- I guess that was during the summer or fall of 1934.
Q. And until the year 1945?
A. Yes until the year 1945, that is April of 1945.
THE PRESIDENT: Would you state your name again?
A. Helmut Boden, attorney and notary at Berlin-Wilmersdorf.
Q. Witness, did you appear before the People's Court as a freely appointed defense counsel, or were you appointed by the court?
A. I appeared there as a defense counsel chosen by my clients as 'well as a counsel appointed by the court.
Q. Can you tell us what was the reputation of the defendant Lautz, when in 1939 he assumed the office of Chief Reich Prosecutor at the People's Court?
A. The defendant Lautz, if I remember rightly, had formerly been General Public Prosecutor at the District Court in Berlin. The majority of cases, consisted of Berlin attorneys. Therefore, they knew Lautz from former days per serially, or they knew him by name. The reputation which he had formerly enjoyed was as good as it possibly could have been.
He was considered an objective person. His reputation was really a good one.
Q. Was Lautz considered a very severe man?
A. No.
Q. What observations, with reference to Lauez, did you make during the subsequent years?
A. I found that the reputation which Lautz had had before, was confirmed when he assumed the office of Chief Reich Prosecutor with the People's Court.
Q. Were any difficulties made to the defense counsel, in preparing and carrying out their defense?
A. No.
Q. Did the defense counsel have difficulties when they wished to look into the files?
A. No, but I must point cut that only after a certain date which is laid down in the penal code of procedure was it permissible to have a look at the files.
Q. But was it not possible for you, inspite of that, before that time limit fixed by the law to inform yourself in detail as to the charges against the defendant, and how to carry out your defense?
A. Yes. If defense counsel in good time before the indictment had been filed had been asked to take over the defense of a defendant, either by the defendant or by his relatives, the defense counsel was in a good position to obtain information about the proceedings -- by, for example, talking to the expert at tho Reich Prosecuting Office; where he heard the charges which had been made against the Defendant. Then he knew how to prepare his defense.
Q. Is it correct to assume that you acted as defense counsel in cases which were connected with the attempt on Hitler's life on 20th July, 1944?
A. Yes.
.
Q. What general observations did you make concerning the defendant Lautz?
A. That the defendant Lautz repeatedly acted as the prosecutor and that in his applications, and in accordance with the facts of the case he was moderate and objective.
Q. Did he ever become aggressive toward the defendant or the defense counsel?
A. I never say that happen. .
Q. Do you know what instruections Lautz had given to the three public prosecutors who had to work on the cases concerning the 20th of July, 1944 incident?
A. Yes, I remember one instance. I had had a discussion with the public prosecutor Harzmann about some case in connection with the incident of 20th July 1944. The presiding judge of the senate was almost always Freisler, who was very severe. The Reich Public Proseouting Office knew that too. Therefore, Harzmann told me: "You know the tendency of the senate, and that has caused us to be lenient." Perhaps this is not a literal version of his words, but I am sure they arc correct as far as their meaning is concerned.
Q. What did you ever hear from other quarters about Lautz' attitude toward the defendants who were connected with the 20th cf July, 1944 incident?
A. Nothing that was against him. I should like to say that the attitude cf the defendant Lautz was in fact of the type which Harzmann, the public prosecutor, had described to me.
Q. Is it correct that Lautz, after General Herfurth had been sentenced, intended to make a clemency plea?
A. Yes, the Herfurth defense counsel Neubert, the president of the lawyer's chamber in these days, told me the Herfurth case was to say the least doubtful. A death sentence had been passed. Neubert told me that the defendant Lautz had told him that he had dropped the hint to higher authorities to the effect that the execution of the death sentence on Herfurth was not to be carried out for the time being.
However, the sentence was executed, but as far as my information from Neubert does, that happened because the clemency plea department cf the Ministry cf Justice apparently immediately reported to the Minister who ordered execution.
Q. Did you have any criticism to make concerning the procedure of of the Reich Public Prosecutor in connection with the plot of 20 July 1944?
A. No.
DR. GRUBE: Thank you, I have no further questions.
DR. DOETZER: For the defendant, Nebelung:
Your Honors, may I continue?
BY DR. DOETZER:
Q. Witness, has the prosecution already examined you on the subject cf the People's Court?
A. Yes, that is to say I don't know whether it was the Prosecution. At Berlin I was interrogated twice. Once I was interrogated by Mr. Corsing, and the other name I don't remember at the moment.
Q. Have you deposed by affidavit?
A. Yes, I have deposed in two affidavits.
Q. Did one of those affidavits or both refer to the defendant Nebelung?
A. As far as I remember it was the second affidavit which referred to the defendant Nebelung.
DR. DOETZER: May it please the Court. Would you allow me to interrupt for a moment? At an earlier date the Prosecution produced here a part of an affidavit deposed by the witness Boden. That portion of the affidavit has not been introduced here. It is possible that the whole of the affidavit of which we say only a portion in the course of the proceedings may be introduced by the Prosecution. In that case I did not wish to make the witness Boden my witness but in respect of the statements made with reference to the defendant Nebelung I should like to cross examine him. Perhaps that question which arose here in a similar form once before could be cleared up by the Prosecution, as in a former case -- I am referring to the Suchemel case -- telling whether it is going to submit such an affidavit or not.
MR. KING: Of what affidavit does counsel speak?
DR. DOETZER: I have just asked the witness whether he had deposed an affidavit and he said he had. A portion of an affidavit was distributed to us here in the Court at an earlier date with ether documents and from this we could see that the witness had deposed an affidavit for the prosecution.
MR. KING: as I recall, the witness gave several affidavits to the Prosecution and at the moment I do not know of which one counsel speaks.
THE PRESIDENT: Do you have any affidavit which has not been introduced in evidence and which you propose to introduce in evidence, from this witness?
MR. KING: At the moment, Your Honor, I am not prepared to say, I think it depends rather largely on what evidence remains to be proved after the Lautz case is in. It may be we will find it necessary to introduce it as a rebuttal exhibit but at this moment, Your Honor, I am not prepared to say definitely that this will or will not be the case.
THE PRESIDENT: The Prosecution has rested it's main case and has not introduced it. It has introduced only those affidavits which are already in evidence. If you have any desire to attempt to impeach any testimony made by this witness it will have to be done at this time, that is, before he is excused. We cannot rule now as to what your rights may be in rebuttal.
MR. KING: We did not intend to use the Boden affidavit to impeach this witness at this time.
THE PRESIDENT: It could be used, if at all, only in rebuttal.
MR. KING: That is right.
THE PRESIDENT: And as yet we have not heard the Nebelung case and cannot tell whether it would be permissable in rebuttal or not.
MR. KING: That is correct.
DR. DOETZER: May it please the Court, in view of this, I will call the witness Boden, as my own witness.
BY DR. DOETZER:
Q. Witness, concerning the matter of the 20 of July, did you ever attend a trial where the president of the Senate Nebelung presided?
A. Yes.
Q. What trial was that?
A. That was the case of Engelhorn and six other persons which apparently was tried on the 19th and 20th cf September, 1944.
Q. Witness, do you remember in what way the defendant Nebelung conducted the proceedings?
A. He did so in an absolutely orderly manner and I am always pleased when I recall those proceedings. All of the defendants were able to have their say.
Q. Were the defense counsel in any way even in the slightest curtailed in the exercise of their rights?
A. No.
Q. Did these defendants have the last word?
A. Yes.
Q. Do you know whether that proceeding was adjourned or what was the outcome of it?
A. As far as I remember the pleas were held on the evening of the 19th of September. On the 20th of September, the sentence was to be announced. The Prosecutor, I believe it was Harzmann, representing the Reich Presecution at the trial, however, asked that the proceeding should be suspended in favor of ail the defendants, and as a reason he gave that more new material was to e submitted. The Court withdrew and in respect of the six defendants announced a decision of approximately these contents: That the proceedings against these six defend dents would be suspended, whereas the defendant Von Ramin was acquitted.
Q. Was that the first acquittal that occurred in connection with the 20th of July?
A. I believe that there had been an acquittal before in the case of a Count Bismarck, who had been Police President in Potsdam or somewhere near Berlin, but it is possible that the sentence on Bismarck was passed after the sentence on Von Ramin.
Q. Witness, do you still remember when the trial against the other six persons was re-opened?
A. I rang up my office yesterday in connection with that and I was told that the trial re-opened against four of the former seven defendants on the 10th and 12th of October, 1944.
Q. Was Nebelung the presiding Judge?
A. No.
Q. Did it strike you that Nebelung was not the presiding Judge?
A. Yes, I found it very striking.
Q. Did the attorneys and the Judges and the Reich Chief Prosecutors discuss the matter and what did they say?
A. All I can say is what was discussed in the corridors of the People's Court which, I believe, was sitting these days in the building of the Prussian Supreme Court. In particular, people were saying that Nebelung was a disfavor because he had conducted the proceedings in such a manner that the Reich Public Prosecution had asked for three acquittals and that on the 20th of September he had announced one more acquittal.
Q. Witness, were you told that the Senate President Nebelung asked the Reich Minister of Justice to be allowed to resign or didn't you hear about that at the time?
A. In that precise form it did not come to my knowledge. There was a rumor going about that he anted to get away, but I cannot give you any particulars.
Q. Witness, may I hand you two sheets. Please tell is what the first sheet is about?
A. It is a photostat.
Q. Please turn that photostat over, there you will find a stamp.
A. "Reproduced" and then something illegible, then APO 742-A.
Q. Will you turn over to the second page?
A. That is even worse.
Q. Can it be that perhaps it says "Reproduced by the document center?"
A. Yes, 7771 can still be read.
Q. Yes, now please turn back to the first page and tell us what it says on the first page?
A. On the top in large print, "The Ministry of Justice", then a small "p", then there are two figures which have been crossed out and then the figure "3" which is underlined, then it says: "Guenter Nebelung, President of the District Court of Appeals at Braunschweig", and that has been crossed cut and below it says: President of the Senate at the People's Court at Berlin, A-1944, and below that there are three crosses.
Q. That is enough, thank you.
Q That is enough, thank you.
Is it correct to say that this is the first page of the personnel file of the Defendant Nebelung which originated from the Reich Ministry of Justice?
A Yes, I have to assume that from the look of the page.
Q Will you put that page down, and will you look at the next page? On the second page, at the bottom, on the left-hand side, do you find the same file note which appears on the first sheet? Does it again say I-B-5?
A Yes, but there is one slight difference: On the second page, before "P-5", there appears the Roman figure one.
Q Can you tell us what page of the personnel file that might be?
A On the photostat of the second page, in the right top corner, there is the number 112.
Q Thank you. Would you please read out the note which appears on that page?
A "1. I have talked to Nebelung, the Senate President, with a view to the vacancy which has occurred at the District Court of Appeal in Braunschweig. The Minister thinks that it is out of the question that Nebelung would return to Braunschweig, and at the moment cannot think of any other employment for him.
"2. Ministerial Director Willers, Prezlau, 17 November 1944."
Then a signature which is not know to me.
Q Could that signature read "Leetz"?
A That is possible, yes.
Q Thank you. Would that not confirm your view that what you heard in the corridors was correct?
A Yes.
Q Thank you. Witness, did you ever observe the defendant Nebelung at other trials concerning the 20th of July, besides the one which we already discussed? Did you ever see him as presiding judge, as an associate judge, or did you see him on the Bench in a judge's robe at any trial?
A I remember that on the 7th and 8th of August, when the case against Witzleben and others was pending, the defendant Nebelung sat behind the judges as a so-called alternate judge. As far as I know, he was wearing a judge's robe.
Q Was he sitting on the bench?
A No; looked at from my position, he was was sitting behind the Bench at the right-hand side. He only acted as alternate judge.
Q Did you notice whether he was sitting there during the entire time?
A Yes.
Q Or is it possible that he went away from there after the recess and that he went to the gallery?
A No, certainly not at that trial.
Q Thank you. Witness, you are a well-known attorney in Berlin. Did you ever hear from attorneys who were defense counsel before the People's Court, that they criticized the manner in which Nebelung conducted his cases?
A No; I heard the opposite. All defense counsel to whom I spoke were satisfied when Nebelung presided.
Q Witness, did you act as defense counsel at any other trial where Nebelung presided?
A I regret that I cannot say that for certain anymore. It is possible, but I cannot give any positive information.
Q By any chance, did the defendant Nebelung ever turn down your application to appear as defense counsel. He's Fourth Senate?
A No.
Q Do you know with what cases the Fourth Senate dealt? That is to say, during the time when Nebelung was in office there.
A From what time on did Nebelung work there? Unfortunately, I do not know when Nebelung came to the People's Court. I assume that he went there at the beginning of 1944. At that time the Fourth Senate, if I am properly informed, only dealt with cases of treason.
Q Witness, did you ever have a conversation with the defendant Nebelung during that time?
A I remember that for example , in February 1944. -- I beg your pardon, 1945, in Potsdam, I talked to Senate President Nebelung in the office of the Fourth Senate.
Q Do you remember what the subject of your conversation was?
AA number of defendants had been moved away from Berlin without anybody knowing where they had been moved to.
DR. DOETZER: Thank you; I have no further questions to put to this witness.
BY DR. ASCHENAUER: (Counsel for the defendant Petersen)
Q Witness, did the judges and associate judges at the People's Court, generally speaking, share Freisler's tendency toward more severe sentences?
A No.
Q Do you remember various presiding judges?
A Yes.
Q Can you describe to us the attitude of those various presiding judges?
A Yes, I can.
Q Would you therefore please describe the various presiding judges to us?
A Freisler was very severe; as one may put it, he just over-ran the defendants. Laemmle, too, was severe. I believe it was Krohne who presided over the Second Senate. He too was severe, but he was absolutely fair and objective.
In the Third Senate - I cannot remember who was the presiding judge there. In the Third Senate Springmann used to be the presiding judge. Springmann was very objective, very calm, and was considered a good judge. Later on, as far as I remember, Graeulich was the presiding judge there. What I said of Springmann was even more true of him.
Koehler used to be the presiding judge of the Fourth Senate. He was severe, but fair and objective. His successor was the defendant Nebelung, about whom questions have already been put to me.
At the Fifth Senate, in my opinion, Albrecht was the presiding judge. In regard to him, I ought to stress that he was very dull.
At the Sixth Senate Hartmann was the presiding judge. He was altogether objective and fair.
I regret, however, that I cannot say whether I may not have gone wrong in respect to the numbers of the Senate and their presiding judges.
Q Witness, do you know whether Graeulich was an associate judge for some time with Freisler?
A That is possible; I cannot say so for certain, anymore.
Q Do you know of differences of opinion which occurred between Freisler and his associate judges?
A Yes, one heard of that quite frequently.
Q What was the position of the lay judges? Were they particularly active?
A By no means. The lay judges, as a rule , only sat there and listened. Occasionally they did put questions.
DR. ASCHENAUER: Thank you. I have no further questions.
THE PRESIDENT: Does any other counsel for any other defendant desire to interrogate?
(No response)
There appears to be none. You may cross-examine.
MR. KING: Your Honor, counsel for Nebelung has shown the witness a document which we have not seen; it has not been offered to us. I think during the recess we would like to examine that and recall the witness, if we finish with him prior to the recess, on that document if it becomes necessary.
THE PRESIDENT: You have only two minutes more before the recess.
MR. KING: Well, I think then that there will be no problem.
CROSS EXAMINATION BY MR. KING:
Q Witness, you were on the approved list of the People's Court, were you not?
A Yes, I was.
Q How many of your colleagues, in your experience, were removed from the approved list for conduct not approved by the Court? Can you estimate that approximately?
A No, I cannot give an estimate.
Q What were the methods of -- I will withdraw that.
How was a counsel withdrawn from the approval list? What were some of the reasons why a counsel's name was withdrawn?
A I am unable to tell you anything about that. Those were the internal affairs of the People's Court.
Q Witness, you practiced before the People's Court for eleven years. Can you tell me, say between the period of 1942-1945 how many cases you took for your personal attention?
A No, I am not able to do that. In November 1943 I was bombed out, and I lost all the files. In the period from November or December 1943 until the surrender I defended before the People's Court, I think all my files of that time are in existence. I have made available these files to the gentlemen who interrogated me in Berlin. In my recollection there were some thirty. In addition, there are the files which refer to the 20th of July.
THE PRESIDENT: We will take fifteen minutes recess.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY MR. KING:
Q. Before the recess, witness, you said that between the years of 1942 and 1945 you remembered approximately 30 cases, or at least you had given the representative of the Prosecution 30 case files. Now let me ask you this: You had more than 30 cases in that period,did you not, before the People's Court?
A. Yes, indeed, and 39 cases also do not refer to the time from 1942 on but to the time from about November-December, 1943. To that have to be added the files of the 20 July
Q. Leaving out the 80 July trials as an approximation, if you can, how many cases did you appear in before the People's Court between the beginning of 1942 and the capitulation?
A. I should like to approximate that as to have been about 3 cases per month.
Q. And how were those distributed? Did they average about 3 a month or did some months you have a great many more than others?
A. It is an average. I think the distribution was that lists were available for every president of a Senate and then the cases were distributed according to the alphabet. That, of course, refers only to defense counsel appointed by the Court - this distribution.
Q. You said you were both?
A. Yes.
Q. And in how many cases did you represent clients in which you were not appointed by the court?
A. That is very hard to tell. I should like to say that more than half were cases where I was appointed by the court and less than half where I was selected as defense counsel by the defendants.