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.
Witness, on the basis of your own experiences, can you say that in those cases where only a brief interval existed between the filing of the indictment and the opening of the trial you were not in a position to conduct a defense in an orderly manner?
AA case of that kind never occurred to me. In every individual case, even when the time limit set was very short, I always was afforded the opportunity to speak to the defendant, and, of course, to prepare the case.
Q. In such cases where there was a short time limit, did you have the possibility to file motions for submission of evidence?
A Yes, indeed. I could do that in two ways. Either before the trial, and in that case, I did it in writing. Or, I did it in the course of the trial -- then I did it either orally or in writing.
A Did the court accept these motions?
A If they were relevant in any way, certainly.
Q May I ask you what in general was the attitude of the court concerning motions or petitions for submission of evidence?
A They were granted if they were of considerable importance. The more time advanced, the more severe the punishment became; I remember that I heard of a Senate where the maximum penalty was in question and there we had to investigate each case especially carefully. If a petition to submit evidence was justified, that is, important then the trial was adjourned and in a new session, the important witnesses were heard.
Q. Did yon have the impression that you were impaired in any way in your activities as defense counsel before the People's Court?
A No, I never had that impression.
Q. Therefore, you had the opportunity to carry out to the fullest extent your duties as defense counsel?
A. Yes, fully.
DR. GRUBE: Thank you, I have no further questions.
THE PRESIDENT: It appears there is no further examination of this witness. The witness is excused. Is Dr. Grube through?
DR. BRUGE: I have no more witnesses, but I have several document books to be introduced, but as yet they have not been translated. I therefore ask to be permitted to conclude the case Lautz to that extent, and then when I receive the document books, to be committed to submit additional documents.
THE PRESIDENT: The case of the defendant Lautz is rested subject to your reserved right to introduce document books as soon as they are available; is that right?
DR. GRUBE: Yes, thank you very much.
THE PRESIDENT: Very well.
DR. SCHILF: (Attorney for the defendant Mettgenberg) With the permission of the Tribunal, I should like to begin my defense of the defendant Dr. Mettgenberg by calling the defendant into the witness box as a witness in his own behalf.
May I ask the representative of the Secretary General to submit the lists to the bench. I have made a list of the exhibits which the Prosecution has submitted in the case against Dr. Mettgenberg, and in that sequence I shall refer to the exhibits.
WOLFGANG METTGENBERG, a witness, took the stand and testified as follows?
BY JUDGE BLAIR:
Hold up your right hand and be sworn, please.
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
WITNESS: I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing. So help me God.
JUDGE BLAIR: You may be seated.
DIRECT EXAMINATION BY DR. SCHILF: (Attorney for the Defendant Mettgenberg)
Q. Dr. Mettgenberg, will you please describe to the Tribunal briefly your life and your career.
A. The Court has already been submitted Exhibit 11 which describes my personal circumstances. Therefore, if I may be permitted to repeat only briefly: I am sixty-four years old; I was born in Lleve on the lower Rhine close to the Dutch Border. My father at that time was a pastor in Kleve, and was later called to the administration of the Evangelical Church in Koblenz. Thus, I attended schools in Kleve and Koblenz. After completing my studies at these schools, I studied law, first in France at the University of Grenoble, later at Bonn and Berlin. The final examination I passed in 1909, and immediately after that examination I reported to the prosecution. I was employed with various prosecution offices in the Rhineland until the winter of 1919/1920 when I was called to servo in the foreign office. About half a year later, that is to say, in April, 1920, I was transferred to the Reich Ministry of Justice, and from that time on -- April 1920 -- until the collapse in 1945 I was a member of the Reich Ministry of Justice, that is to say, altogether twenty-five years. In 1920 I became Oberregierungsrat at the Ministry of Justice; in 1923 Ministerialrat; and in 1939 Ministerialdirigent.
Q. Dr. Mettgenberg, in the course of your professional career did you also work in the scientific and literary fields?
A. At the University of Bonn I passed my doctor's examination in 1906, and since that time I was always active in the literary field. My literary activity during that entire time was in the field of international penal law, in its widest scope. That literary activity was also the reason why I was called, into the foreign office at the time and later into the Reich Ministry of Justice.
This activity, as is self-evident, brought me into contact with nemerous authorities in that field at home and abroad. Among those connections abroad, which were based upon my literary activities, I might mention here especially the American Professor Preuss, who came to see me in Berlin and with whom I had literary connections in this field until the outbreak of the war. He was at that time at Ann Arbor University in Michigan. Now, I have no contact with him, as yet.
DR. SCHILF: May I interpolate here, Your Honor, that as to the literary works of Dr. Mettgenberg, I shall submit a synopsis in my document book.
BY DR. SCHILF:
Q: Dr. Mettgenberg, you mentioned that as an expert in the field of international criminal law, in its widest scope, you had been called into both offices which you mentioned. Would you please tell the Tribunal whether you had anything to do with those things in these positions?
A: Yes, immediately after I assumed office in the Reich Ministry of Justice I received the task of drafting a German extradition law, a task which took me many years. The law went into effect after same adoersities and as such, is still valid today. In addition to that extradition law, and, of course, other tasks, I was particularly charged with the mission of representing the German Government in International negotiations whenever these international negotiations dealt with matters of criminal law. This brought it about that I made relatively many trips in order to take up such matters with the League of Nations, with the Rhineland Commission after the end of the First World War, and with numerous representatives of foreign governments. That was sometimes done in the foreign capitals and sometimes in Berlin. On the whole these negotiations dealt with extradition treaties. Thus, for instance, the International Convention of Geneva against the counterfeiting of money of the 20th of April 1929, and the German-American Extradition Treaty of the 12th of July 1930, were signed by me as a representative of the German Government. Also the drafting of principles and the extensive administrative work in the field of international penal law, especially the matter of legal aid in penal cases, were within my field in the Reich Ministry of Justice.
There I worked mostly with two referents and several assistants in carrying out these tasks. At the Ministry I was always given a great deal of latitude in carrying out that work. It was a marginal field, a specialty, that could only be mastered after years of handling it and study and experience.
Q: Dr. Mettgenberg, that describes your official activities. Now I am asking you about your attitude toward politics? Were you ever active in a party, in a political sense?
A: I did not belong to any party; and I did not belong to the National Socialist Workers, Party either; and it was in accordance with my entire temperament and inclination that I was not interested in the party struggle. During the years from 1920 to 1932, when I was already at the Reich Ministry of Justice, we had ministers from all parties existing at that time, and the ministers came and left in accordance with the party-political situation. I, myself, in the course of my tasks had much to do in the Reichstag and that afforded me a certain insight into the party system and was only inclined to increase my dislike of anything that had to do with party politics. Of course, in 1933, when Hitler became Reich Chancellor, the question of my joining the Party was suggested me, but at that time I was already fifty-one years old, and I was not inclined to change my attitude; that this could not be carried out without disadvantages for me, was clear to me, and there were various periods during which I definitely expected to be retired on account of my remaining aloof. That it did not occur is based, as far as I can judge, probably on the fact that I happened to be a specialist for the field which I have described, and was not easy to be replaced.
I was simply permitted to continue to work in that particular field.
Q: Dr. Mettgenberg, although you were not a member of the Party, the Prosecution has submitted two documents against you from which it allegedly can be seen that you approved the persecution of the Jews. The Prosecution, and I must say, unfortunately, did not submit your personal file. It may be possible that the personal file may have shown something in your favor in this connection. Referring to the submission of one or two documents which were submitted against you, on the Jewish problem, I want to ask you now, on principle, what was your attitude toward Jewry?
A: The matter which you, Counsel, have broached now, is not without some grim humor, because the situation is as follows: I am now charged by the Prosecution with being hostile to the Jews while it is not so long ago that the National Socialists accused me of being a friend of the Jews. In fact, I had rather extensive scientific, literary, and artistic interests, and, was, therefore, fully aware of the contributions Jewry had made in both of these fields, the fields of art and the field of science. It was, therefore, quite incomprehensible for me that anybody could dedicate himself to the mania of racialism. I was always primarily interested in the person with whom I had to deal and that of course applied also to my personal contact with the Jews. That at present it is made somewhat difficult to retain that point of view. I cannot deny, but fortunately there are people like Victor Gollanez who do make it possible for me to retain that point of view. How unbiased I approached these matters can best be proved by the fact that I had my major works published by a Jewish Publishing firm, and I had the best personal relations with the owner of that firm.
Q: Dr. Mettgenberg, the Prosecution submitted exhibit 198 against you, as well as exhibit 368. Moreover, the Prosecution in it's document books, not as exhibit, however, submitted a file which dealt with the question as to how far the so-called persons of mixed descent were permitted to marry people who were not of Jewish descent. That document bears the number of the Prosecution NG 1066, With reference to these documents I should like to ask you to explain briefly to the Tribunal to what extent you were guided in your actions by the attitude towards the Jews which you have just described?
A: I should like to say frankly that I really dislike to speak here about the so-called good deeds of mine, but the charges which are made against me by the Prosecution force me to do so. Quite briefly, may I be permitted to mention a few things which may give an impression as to how I behaved toward individual Jews. I just want to touch on the fact that my wife and I for years entertained a close friendship with the former manager of the well-known department store in Berlin, Wertheim, a man by the name of Haac and his wife. The Haac couple was able to emigrate in time to the United States. They live now in New York, Their sons fought at the front against their native country, and since the end of the war we have again taken up our friendly relations with that family. I also want to touch briefly upon the fact that I intervened to the best of my ability on behalf of a Prosecutor of Jewish descent, who was a friend of mine, and who had to bear the severe fate of being a Jew. The unfortunate man was transferred into a camp with a severe heart disease and did not survive It. In Berlin I lived in a large apartment house which was occupied almost entirely by Jewish families, and it went without saying for me, even after the war, and after all the hardships which we bore together bombings, burning down of the building, that together with my sons we were always at the disposal of our Jewish co-tenants just as much as for anybody else.
And it was not without deep emotion on my part each time when in the morning, or in the evening, again, one of the unfortunate tenants in the house was transferred away to an uncertain fate.
However, I have to describe in more detail one occurence which caused great difficulties to me in my official career. I was the Chairman of the Council of Parents. That was a committee formed by the Parents of the pupils at one school, which was authorized to discuss with the director of the school any matters which were of concern to the parents of the pupils. I was Chairman of such a Parent's Council and since there were many Jewish children in that school, of course there were also Jewish Parents in that Parents' Council.
In 1933, when Hitler became Reich Chancellor, there were some hotheaded individuals in that Parents' Council who demanded the immediate elimination of all Jewish members of that Committee. These matters assured such chaotic forms that, in consideration of my principles of order, I could not let that go on. At first I tried to put matters on a calmer level by delaying tactics, when that did not succeed and they did not want to follow my calm suggestions, I was forced to resign as Chairman of the Parents' Committee.
The personal consequence for me was that that occurence was immediately reported to the Gau executive Office in Berlin, and it was also explained to the Gauleitung how that Ministerialrat from the ministry of Justice dealt with Jews. In fact I found out later that this incident was the reason why I had to wait for my promotion for many years, because every time the request was made, the Gau Office in Berlin said that they could not approve the promotion of that "suspect Ministerialrat."
Q Dr. Mettgenberg, I believe what you have told us about the details of your attitude is sufficient is sufficient. I only want to ask you this. In your official contacts, that is, from 1920 on, did you entertain any close relations of friendships with people of Jewish descent?