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.
Q. Would you say that five cases a month would he a fair approximation of your work before the People's Court in the period 1942 to 1945?
A Five? I don't believe so. About three as an average.
Q. Well, you said three was your average of cases where you were the appointed defense counsel.
A. No, no, That average of 3 per month refers to both as appointed and selected defense counsel.
Q. How many executions did you attend, witness?
A. Not a single one.
Q. Not a single execution?
A. No.
Q. Was it customary for defense counsel to receive invitations to executions with the frequence with which you received them?
A. This is the way it happened. When a death sentence was pronounced and the clemency plea had been rejected, a letter which was really a form filled out, was sent to the defense counsel, which contained the information that on that and that date the execution of the death sentence would take place in such and such a place. In my opinion, there was attached to it also an admission slip which would have authorized the defense counsel to attend the execution of the death sentence. It is also possible, however, that that pass was already printed on that information.
Q. How, when you speak of pass, witness, do you refer to this document that I show you (handing document to witness)? Is that what you refer to by "pass"?
A. Yes. I mean that kind of a slip, but in individual cases it may have been different as to its text.
Q. Though you continued to get these passes for three years or more, you never attended any executions?
DR. DOETZER: Mr. President, I object to that question. That whole group of questions was not discussed in the direct examination, nor fo I know what these questions should establish in order to shake the credibility of the witness. I have listened for quite a while and I believe that I have to say that this cross examination is indeed going too far.
MR. KING: The witness is testifying -
THE PRESIDENT: Just a moment. The objection, of necessity, is directed to the last question and he answered that last question unequivocally in the preceding examination.
MR. KING: That is correct.
THE PRESIDENT: So you may ask another question.
BY MR. KING:
Q. Witness, will you tell us briefly about your experience in handling sterilization cases as a result of your practice?
A. My experience in handling sterilization cases is very limited.
DR. ASCHEHAUER: I object to this question. The direct examination did not deal with it.
MR. KING: The witness is testifying as a counsel practicing before people's and other Courts. I think one is entitled to hear his remarks on this question.
THE PRESIDENT: The objection will be sustained.
BY MR. KING:
Q. How much trouble did you have, witness, in looking into the files of a particular case? I recall that you told a representative of the prosecution last fall that you had difficulty in examing a file until an indictment was filed. That is substantially correct, isn't it?
It is as I have said before. To look into the files was p 6225 permitted from a certain time on, which was provided in the code of criminal procedure.
I do not remember the paragraph number but I think that would clarify that question. Before that time one had no right -- and I underline the word right -- to look at the files.
Q. Yes. How, you also told a representative of the Prosecution last fall that you couldn't talk to defendants as a rule until after the indictment was filed. Do you still stick to that?
A. At the moment I don't remember that I have talked about that today. But it is clear that one had to have the permission to speak to the defendant. Once one had that permission there was no difficulty in the way of speaking to the defendant.
Q. Well now, witness, I don't necessarily want to use your affidavit to impeach your testimony, but I have it before me and I think I can read well enough to say that you did sign an affidavit in which you. said as a rule you could not talk to defendants until after the indictment was filed. If you have any doubts about it I will be glad to let you see the affidavit which you signed.
A. Is that the affidavit of the 23 October 1946 that you are referring to?
Q. Yes, that is right. You will find that on the bottom of Page 2, witness.
A. No. Here I find something different. On the bottom of Page 2 I find: "Even though you cannot mention than by name do you know from your recollection of cases where the indictment was submitted less than 72 hours before the main trial?"
Q. No, no, witness. You are reading too far down. Read a little higher than that.
A. Paragraph above that.
(Reading) "You say, Mr. Boden, that you were only permitted to speak to the defendants after the indictment had been submitted to you and to the other defense counsel?"
Do you mean that passage?
Q. I mean that passage.
A. Yes.
Q. That is still true, isn't it? Yon don't want to change your opinion on that?
A. No, no.
Q. How toll me, witness, was it customary for you to examine a defendants file before you had talked to him?
A. I didn't under the question fully.
Q. I will repeat it. I asked you if it was customary for you to examine a defendant's files before the indictment had been served on yourself and on the defendant?
A. On principle, no. Here again we awe concerned with that one paragraph of the Code of Criminal Procedure but with special permission, let's say, by the Decernent or by the Chief of a Department of the Reich Prosecution, one could certainly obtain in-formation and in some cases also one could obtain permission to study the files before the indictment was filed.
Q. But, as a general rule, you say not; is that right?
A. I should like to say it was customary if one asked the Reich Prosecution. If one said that one has been designated to handle the defense for that and that case, and what it was about, then one obtained sufficient information on the case.
Q. By examining tho files or by talking with the Reich Prosecutor?
A. That, of course, I cannot say today, much as I try to remember. Mostly because of the information received from the Prosecutor, occasionally by studying the files.
THE PRESIDENT: Witness, may I ask you one question in that connection? Shocking of the general practice, if there was one, when would you receive you appointment in cases in which you were appointed by the court with reference to the date of the filing of the indictment?
THE WITNESS: I believe there existed a form, which said something like this: "The defendant X has been served the indictment. You are appointed defense counsel of the defendant. The files can be looked at in the office of that or that Senate."
THE PRESIDENT: I merely wanted to ask whether you received your appointment ordinarily before or after or at the time the indictment was filed?
THE WITNESS: If I remember correctly, simultaneously were the appointment of the defense counsel and the filing of the indictment.
MR. KING: You remember about the von Brinken case; do you not?
DR. DOETZER: Mr. President, I object, the von Brinken case was not the subject of direct examination by any one of defense counsel.
MR. KING: It was a subject of direct with Defendant Lautz, in which tho defendant Lautz mentioned the witness Boden.
DR. GRUBE: In my opinion the witness cannot be heard about the case von Brinken even thought it was discussed in the case Lautz, as I did not select the witness for the case von Brinken.
THE PRESIDENT: That is only a preliminary question, what is y your purpose, let us hear the rest of your question.
Witness withhold your answer until the court rules. What is you question with reference to the von Brinken case?
MR. KING: In connection with the von Brinken case; you know the SS Obergrappenfuehrer Hildebrandt: all that is a preliminary question to the one which follows.
THE PRESIDENT: The Tribunal does not understand the purpose of your question. The objection will be sustained. If you can clarify perhaps we can consider it further.
MR. KING: I was about to ask the witness what he was going to toll no about the von Hildegrandt, but I don't think it is a point we want to persue anyway.
THE PRESIDENT: The objection will be sustained.
BY MR. KING:
Q. What, witness, was the number of cases in year experience in which the trial followed within a period of not more than 48 hours the serving of tho indictment?
A. I could not give a definite figure. Maybe from the beginning of 1944 on, and even that time may not be absolutely correct difficulties may have arisen, not so much within the People's Court, but on account of the fact that Berlin prisons were overcrowded or damaged by air raids.
Q. We understand the situation. I wish you would answer the question if you. can, if you cannot, say so.
A. It occurred that the indictment was filed a very short time before the main trial , if that was less than 48 hours, I cannot say today.
Q. Were there very many cases in your experience in which the trial followed by not more than 48 hours the serving of the indictment?
A. There were a number ---
DR. DOETZER: I object, the witness has already answered the question.
THE PRESIDENT: The objection is over-ruled.
THE WITNESS: There were a number of cases where the indictments were filed very shortly before the opening of the trial. Whether it Was less than 48 hours, I cannot say any more, today.
BY MR. KING:
Q. How large would that number be, witness?
A. I regret that even though I have the best of intentions, I cannot give you a definite figure.
Q. Well, was it a considerable number or just a very small number?
A. I would like to say it was neither a considerable nor a very small number. That developed from the situation I was about to describe before.
Q. Would you say, witness, in your experience, let us say the beginning of 1942, that there were as many as 50 cases in your experience in which the period between the serving of the indictment and the commencement of the trial was never more than 48 hours?
A. If that is to refer to my activity as defense counsel, I have to say there were less than 50 cases; if it refers to the activities of all Berlin defense counsel Before the People's Court. I cannot say definitely, I could only estimate it.
MR. KING: I think we have no more questions to this witness, Your Honor.
REDIRECT EXAMINATION.
BY DR. GRUBE:
Q. I ask to be permitted to start my redirect examination of the witness. Before, during the cross-examination, you were asked about the problem of looking into the files, you referred to a legal regulation, which however was not known to you by the number.
May I show you the regulation now in order to find out if you refer to this one. I refer to paragraph 147 of the code of civil procedure.
(The document is handed to the witness)
A. Do you want me to read it aloud?
Q. Yes will you please read that regulation.
A. Article 147 - "The defense counsel, after the preliminary investigation has been finished and, if there was no investigation, after the indictment has been filed, is entitled to look into the files which are available at the court. Even before that time, he is permitted to study the files of the investigation made by the court, to the extent that this can be done, without prejudice to the purpose of the investigation. The studying of the minutes of the interrogations of the defendant, the expert opinions end the transcripts and minutes of the actions by the court, which the defense counsel is entitled to attend, he cannot be refused under any conditions, according to the discretion of the presiding judge, the files, with the exception of those dealing with transfers, may be handed over to the defense counsel to take home."
Q. Thank you.
JUDGE HARDING: During what period of time was that law in force?
THE WITNESS: That code of civil procedure which I have before me, was compiled according to the statutes of 1 December 1942. I should like to say that that regulation remained unchanged and valid since the introduction of the code of civil procedure, however, I have to admit the possibility that in the course of the war slight changes of some nature may have occurred.
DR. GRUBE; May I interpose here? The regulation, which the witness has just read, as well as the data contained in this regulation, are in ay Exhibit No. 63.
THE PRESIDENT: Pardon the interruption, in that connection. Witness, I understood you to read something about the files, with the exception of those dealing with transfers. What did that refer to, the files dealing with transfers? I do not understand it.
THE WITNESS: I see nothing about transfers, here in paragraph 147.
THE PRESIDENT: You just read it.
THE WITNESS: Perhaps it was a mistake in the translation.
THE PRESIDENT: I may be wasting time, but I think I quoted exactly the reading: "concerning files, with the exception of those dealing with transfers," I have no doubt I may have misunderstood.
DR. GRUBE: That may have been a misunderstanding. As far as I know the word "Ueber fuehring is mentioned. The word "Ueberfuebring".....
WITNESS: "With the exception of the Uberfuebringsstuche," instrument to be used as evidence, that means, for example the pass keys used as tools for breaking into a house or the axe with which somebody was killed.
BY DR. GRUBE:
Q. In the course of the cross examination the question was raised concerning the permission to speak to the defendants. Witness you said you had the possibility to speak to the defendant from the moment when you had received permission to see him. Isn't it correct that a distinction has to be made between the selection of counsel by the defendant and the appointment of counsel appointed by the court concerning the question as to when one could speak to a defendant?
A. If it was a defense by counsel appointed by the court, then of course one only found out about it the moment one received the appointment, and one found out at that time that one had to defend the defendant so and so, and so of course before that time, one could therefore not speak to the defendant. However, if one was selected to defend a defendant by the defendant, in most cases before the indictment was served one was informed that one was to defend that and that person. Then, of course, one tried to obtain permission to see him. On principle, one had to file the petition with the people's Court that the selection of the defense counsel X should be a proved. If one received a letter indicating that that selection was a proved, then that was already valid as a permit to see the defendant. At any rate, there were no difficulties in prison, and one could speak to the defendant without any obstacles.
Q. Witness, the approval as selected counsel was not given only the moment when the indictment was filed.
A. No. I think that was always given right away after it was requested.
Q. The representative of the Prosecution also discussed the fact that in individual cases, between the moment when the indictment was filed and the date set for the opening of the trial, there was only a very brief interval.