A.- Yes, very well. In that small circle it may have happened that in consideration of my personal acquaintance with the audience, I used expressions which perhaps were a little trivial. I do not wish to dispute the fact that perhaps in some connection or another when describing a certain type of crime I mentioned that a person, when he has committed a crime of that kind, will have to be severely punished; and used the expression that a rib will be broken out; and in another expression of that kind may have been that one might let him dangle from a tree; and I may have used expressions of this kind -- the kind of expressions one does use when one is among a circle of close acquaintances. In that way it may have happened that I did use expressions of that type. All I want to stress is that it was not on an official case when I used that expression, but it was among a circle of comrades, where one spoke the language of a comrade.
Q.- How do you explain that people have made such statements about you now?
A.- In my opinion that can be explained if one takes into consideration the situation of these people themselves. The person who reported on that event -- certainly at the time it occurred did not think about it a great deal, but now perhaps he may feel the need to take up a moral point of view concerning the events of the past, and that is how it happens that he brings the matter up as a means to demonstrate the fact what an entirely different person he is, compared to the person who used expressions of that kind, of which I am charged here. Thus, something happens of the same nature as one could observe the other way around after 1933, when people buried into the past to discover and exaggerate certain facts which had occurred then to show that they had been good National Socialists before 1933. Those phenomena can be explained from the human angle and they can be explained from the situation in general.
Q.- Witness, the witness Bohl also stated that before 1933 you had been well known by the uncontrolled manner of the way you conducted a trial. Here you subjected to any criticism before 1933; or, were you reproached on account of the way in which you conducted trials?
A.- It is obvious that if one adopts a so-called uncontrolled manner of conducting a trial, such as the witness Bohl wants to demonstrate here, in that case one gives rise to criticism by such uncontrolled manner of conducting a trial. It is evident from my introductory remarks here that I had always been before the public with my work, as a public prosecutor, as a judge, and I have to say that on account of my behavior in public in my official capacity, I was never subjected to any criticism neither before 1933 nor after 1993; neither from circles of the population, nor from my superior authorities; nor from among attorneys. I can only remember one official complaint that was raised during the twenty-five years I was in office. That gave cause to extensive investigations, and my attitude in the matter was approved.
Q.- Did the press ever attack you?
A.- The press never attacked me either - in particular it did not attack me on account of the manner in which I conducted a trial. I should like to add that the manner in which I conducted trials, a subject to which I am going to refer later, is an entirely individual manner, and essentially a human being cannot change himself, and the manner in which I conducted a trial -- by that I mean the examination of the defendant and of the witnesses -- that did not differ during the various eras. I did not conduct a trial differently before 1933 from the way in which I conducted it after 1933. Before 1937, I conducted my trials in no way differently from the way I did after 1937. At no time was I criticized by any quarters; no criticism was made which would have deserved any attention.
Q.- Did you occupy any political powers in those days?
A.- If I may say so, I did not have a political power situation before 1933, I didn't pay any attention to matters of that kind, and after 1933 -- it was only in the spring of 1938 that I joined the party. Therefore, nobody could really have the idea to attack me for the reason that I held any political power positions or, if I may call it that -that I entertained any political relations in the time before 1933; that couldn't have arisen at all.
Q.- Did your superior authorities monitor your sessions?
A.- If you say monitor a session, well by that one means that the superiors attended the sessions, going into the courtroom and supervising the judge while he is conducting a trial; that they form an opinion as to his behavior, and to his manner in which he manages to bring up matters from the past and bring them to life; for the persons in the courtroom those matters are supervised, and then the so-called official qualification is written out.
Such monitoring of my sessions was carried out regularly, and that was done at all times. I remember very well, for example, that the sessions which I conducted here in Nurnberg, as President of the Jury Court, in 1933, were frequently attended by the President of the District Court. He afterwards praised me in particular because I had succeeded in conducting matters on a lively basis and maintaining them on such a lively basis. I have to add here that man was a leading democrat, that is to say, he was certainly not a man who looked at matters from a National Socialist point of view.
Furthermore, I wish to add that in particular when my superior attended a session, the characteristics which gave a particular character to my manner of conducting a trial were distinctly emphasized by me; that is to say, in such cases, I did not in some way impose any limitations on myself, that would not at all have been in keeping with my nature.
Q.- In this connection the witness Behl reproduced the assumptions of other persons that your appointment to the Special Court at Nurnberg was made because of your particular suitability within the meaning of the leadership of the State, and because of your ruthless execution of the National Socialist ideas of the Administration of Justice. What National Socialist laws did you have to apply in your appointment to Nurnberg?
A.- Not a single one.
Q.- From 1930 until '37 did you work as a judge on penal cases?
A.- From 1930 until 1937 -- I assume that you are referring to the date when I was transferred to Nurnberg. I did work in Schweinfurt, as I have already said, on penal matters; that is to say, I was an associate judge at the penal chamber with the Court of Assises and a presiding judge with the Jury Court.
Q.- At Schweinfurt did you have to apply any National Socialist laws?
A.- Not in a single case. As concerns a single officer of the Administration of Justice, there was no possibility since 1930 to examine my attitude as a judge concerning National Socialist laws because, until my appointment to Nurnberg on 1 April 1937, I did not, in one single case, have anything to do with the application of National Socialist laws.
Therefore, one could not even say that in one penal case or another, in a definite and particular way, I had paid particular attention to maintaining the interests of the National Socialist State, and that therefore, a particular skill should have been ascribed to me. If I seemed useful to them, that could only be due to reminiscences to the era when, for about one year, I was in charge of a Jury Court in Nurnberg. However, that Jury Court too had nothing at all to do with any political matters; it was exclusively occupied with penal cases of a general criminal nature.
Q.- The witness Behl to support his assertion, mentioned and I quote: "that particularly reliable judges in the National Socialist sense were appointed for the Special Courts." Were you a member of the Nazi party when, on the 1st of April 1947, you became the presiding judge of the Special Court at Nurnberg?
A.- Generally speaking, concerning the testimony of the witness Behl, I should like to state that it would be nonsense to deny that no importance was attached to the fact that the judges employed at the Special Courts were not positive in their attitude towards the National Socialist State, for that was in itself a matter of course which could not possibly be disputed because it was in the nature of things that it should be so. One did assume that the judge appointed to such a position would do his duty in such a way as was within the interests of the doctrine of state in existence at the time; that is to say, that he would apply the laws which had been issued by the National Socialist Legislature, that he would apply them in such a manner in which the Legislator wished them to be applied, for that is the final aim of the work of a judge. However, it would be an exaggeration of the state of affairs if one wanted to maintain that persons had been appointed to such positions as judges who had demonstrated themselves as being particularly radical in their National Socialist attitude, radical in their aims and in their intentions.
That is not correct, but the persons who were appointed to be judges at the Special Courts were expected to be politically reliable.
To answer the concrete question, when I was appointed to Nurnberg to be Landgerichtsdirector, Director of the District Court -- which did not mean in itself that I would also become President of the Special Court -- at that time I was not a member of the Nazi Party. I believe I can remember for certain that the judges who were employed at that court at the time did not belong to the NSDAP as members at that time, and they did not belong to any formation of the Nazi Party either, or at least I knew nothing about it. If they had been anything of any importance I am sure I would still remember. That is to say, taking matters as a whole one cannot say that the Special Court at Nurnberg in those days had a staff which consisted of only typical National Socialists.
Q.- To what other National Socialist organizations did you belong at the time?
A.- I can say I only belonged to the usual organizations; it is always the same thing. I belonged to the NS Lawyer's League. The NSV, the welfare organization, which was in fact a welfare organization. I also belonged to the Colonial League, and to the ARP organization. I think that is all.
Q.- Did you hold any position?
A.- I had no function in any of those organizations. I merely made my contributions, which were collected, as was the custom, by someone at my home at some time or other.
Q.- Did your family belong to the Party?
A.- No, they did not; neither my wife nor my daughter belonged to it at that time, and they did not belong to the Party later either.
Q.- Did you, at that time, take up contact with Haberkern?
A.- You mean from Schweinfurt? No, that was not so. I did not make any contact with that man from Schweinfurt.
Q.- The witness Doebig, in his affidavit -- Exhibit 237 -- maintains that it was Denzler's work that you came to Nurnberg. Did you try and get the appointment as President of the Special Court at Nurnberg, and did you approach Denzler on the matter to get that appointment?
A.- The best way of answering that question is for me to describe exactly what happened about my getting to Nurnberg.
One fine day the President of the District Court, who was the highest authority in the Administration of Justice at Schweinfurt, asked me to come and see him. I was told that he had been rung up, either by Berlin or by the President of the District Court of Appeals at Bamberg, and had been told that he was to tell me to apply for the position of Landgerichtsdirector at Nurnberg, Director of the District Court. The whole matter came as a surprise to me inasmuch as about a year before I had called at the Ministry at Munich and had asked to be re-transferred to Nurnberg, not to be promoted but to be re-transferred there to the District Court. The reason was that in Schweinfurt I had not found a home for my family, and on account of my stomach trouble I wanted to live with my family. I was seen by my co-defendant Engert, and I must say he didn't exactly treat me graciously at that time.
When, in that manner, I had been asked to apply for this position in Nurnberg, I asked for a little time to think things over. I took the advice of my family and my friends, and when I was advised in general to do it, to apply, so as not to give any reason for displeasure, I did make my application.
After a little while I was transferred to Nurnberg. It is absolutely untrue to say that ever before did I make contact with Denzler in the matter of such an appointment. I didn't even know that there was a vacant position in Nurnberg and I no longer expected ever myself to be transferred and had no wish to go to Nurnberg since at last I had found a home for my family in Schweinfurt and had moved into it. That matter, therefore, was of purely an official nature and what the witness Behl said in this connection is nothing but to reiterate some nonsense which had been invented somewhere or other.
Q.- The witness Ferber, during his examination - English transcript page 1322 said that when you were transferred it was said that a new policy would now be adopted in the political administration of criminal law and the changes could already be recognized when your coming was heralded with something like politically accompanying music. What are your comments on this matter?
A.- The people who were in Nurnberg and who had something to say in political offices, or had a certain amount of influence, naturally knew me from the days before my transfer to Schweinfurt. That is to say, from the time prior to November, 1934. At that time, I was not yet known in political matters, but even more, on account of the attitude I had at the time, I was very reserved. I believe I must rather have made the impression on those people in those days that I was a bad National Socialist rather than a good National Socialist. If, all the same, those men, when I was retransferred to Nurnberg, had been pleased, the reason certainly was not connected with my political attitude in any way, nor could the reason be my merits for the Nazi Party. The reason why these persons liked me may have been the fact that, before I was transferred to Schweinfurt, I, in this building here, had acquired a certain reputation. Not for political reasons, but on account of the esteem in which my superiors in the administration of justice held me. It is altogether possible that, from that point of view, they were pleased that I came to Nurnberg for the reason that they liked my work.
Q.- Were there ever any complaints about your attitude at the court in Nurnberg?
A.- There is another short remark I would like to make in regard to your previous question.
I was going to say it was a mistake to speak of something like politically accompanying music. Quite harmless matters are here being given a wrong interpretation.
Q.- Were there ever any complaints about the events which occurred when you presided at the special court at Nurnberg?
A.- When the President of the District Court of Appeals, Bertram, had appointed me President of the Special Court at Nurnberg, an appointment which was not immediately connected with my transfer to Nurnberg, I had contact with the Senior Public Prosecutor Denzler, and with the Senior Public Prosecutor Hirsch, and the other men who dealt with political penal cases including Terber. Not one of those men ever told me that any complaints in connection with the events which occurred at my trials had been made, or that on account of such complaints a solution of the conditions at the special court at Nurnberg with my person was to have been attempted.
Q.- Was any case pending which perhaps could have given cause to certain people to be pleased that you were coming because, with you, there was a prospect that the matter would be settled?
A.- A case which was pending, and which played a great part at the time of my transfer to Nurnberg, and which was a thing which went very much on the nerves of the administration of justice, was the Stegmann case. Before the seizure of power, Stegmann had been a SA-Gruppenfuehrer in Franconia. Three sub-departments were subordinate to him, and shortly before the seizure of power, approximately in December, 1932, or January 1933, there was a considerable revolt in the courte of which Stegmann penalized other SA and Party officers.
From 1933 to 1937, that case remained unsettled so that, again and again, complaints were made by the superior authorities. When, on the 1st of April, 1937, I assumed my office, I immediately tackled that case and I settled it during the first half of May, 1937, and I settled it finally. In this case there might have been a need to be pleased with my arrival because nobody liked to tackle this matter because the Gau leadership of Franconia was somewhat involved in the matter.
Q.- How is it possible that Ferber should have been informed about the matter?
A.- Ferber, when I came, was public prosecutor in Nurnberg and he was a political prosecutor in the immediate vicinity of the Prosecutor Buettner, who also played a certain political role but was not, for his part, connected with Senior Prosecutor Denzler who has been mentioned so frequently here. Furthermore, Ferber enjoyed the unreserved confidence of all those agencies. There was no secret which was kept back from Ferber. Therefore, Ferber was and is informed about everything that happened in those days until the catastrophe occurred and he was informed very exactly and I would be satisfied if he would only speak of those matters. Well, in that direction, Ferber was informed about everything.
Q.- Were you interested in making more severe the jurisdiction of the special court?
A.- That was never so. There was no need for that either.
Q.- Were you only presiding judge of the special court?
A.- No, I was also the presiding judge of the Court of Assizes and it is important in that connection to know that the focal point of my work and of the work of the people around me did not lie with the special court, but with the court of assizes. The court of assizes, from the old days, was the local point of penal activity with the district court. It was there too seen from the point of view of the incidences of cases. At the court of assizes, most of our work occurred.
Naturally, also, in regard to the cases which were tried there, the court of assizes was the court where the most serious crimes were tried there, the court of assizes was the court where the most serious crimes were tried and, therefore, it attracted most notice. What concerns the technical course of events, the demands of work on the staff of the court of assizes were much greater than those on the staff at the special court for, according to the competency regulations of those days, more cases were tried and things were more difficult at the court of assizes than they were with the special court. A man who was within my own sphere of work, with him the question of where to use him was decided from the point of view, not what he would do at the special court, but it was decided by the fact, would he be a qualified man to work at the court of assizes. These facts were of importance in other connections as well and, therefore, I thought it necessary to answer them in greater detail here.
Q.- How many death sentences were passed by the special court at Nurnberg from the 1st of April, 1937, to 1 September 1939?
A. I have thought a long time about that question, and I think I can answer it for certain by saying that during the time from the 1st of April 1937 until the 1st of September 1939, three persons were sentenced to death by the Special Court Nurnberg. Of them two were pardoned, and only one was executed.
Q. Can you tell us briefly what those cases were about?
A. There was the Schlamminger case which had occurred in the Bayrische Wald, and these were the facts of the case. Schlamminger who one might describe as an archaic person, that is to say, good and evil were side by side with him. During the confusion of the times, he developed confused religious ideas, and on account of that he arrived at a decision which in its execution could not be understood probably at first. Without having had any quarrels with any definite people, one night he climbed up the wall around the graveyard and fired shots into the bedroom of a policeman in the house opposite. He used a gun which he has admitted himself that he did so, and he was aware of the fact that in certain circumstances the people who were sleeping there might be killed. The ammunition however did not reach them because contrary to the expectations of the offender, the couple -- the policeman and his wife -- had not yet gone to their bedroom. During the same night, he made the same attack on the school master in that billet. He was the Ortsgruppenleiter of the Party, but here he did not use a place of hiding which was favored for his plan. He had to fire his shot from down below, and the ammunition went straight into the ceiling instead of getting into that part of the room where the people were. That was one case. We sentenced the man to death, and then clemency was exercised, and he was sentenced to ten years' imprisonment. The other case has been mentioned here frequently, and I think it is enough if I just use a slogan in reference to that case, particularly as we have to refer to it again later.
And I am talking of the Hellers who carried out street robberies here in Nurnberg with a car trap. And I am talking about the Heller Muendel case. Both were sentenced to death, but Heller's death sentence was changed because she was expecting a baby.
THE PRESIDENT: Was that Muendel?
DR. KOESSL: That case was mentioned in Dr. Kunz's affidavit.
A. There were the two death sentences which were passed by the Special Court Nurnberg between '37 and '39. And in the case of two defendants, clemency was exercised.
BY DR. KOESSL:
Q. What offense played the main part in the Special Court at that time?
A. The offense which played the main part in the Special Court in those days was the so-called offense against the Malicious Acts Law, malicious remarks and inciting remarks against the National-Socialist State against its institutions or against certain groups of persons. The best way to characterize them is to describe them as the political talk on an insighting or malicious basis, political tittle-tattle. Offenses against the Malicious Acts Law in that form constituted, I believe, 90 percent of all the cases which came to the Special Court before the war, but one must not think that offense had the largest form them in Germany. According to my recollection, and I do not believe that my memory serves me wrong here, the entire number of cases at the Special Court per annum amounted to approximately 120 cases. Viewed from the purely technical angle, those offenses were offenses which did not cause a great deal of work. The facts of the cases consisted entirely of tittle-tattle.
THE PRESIDENT: Your figure of 120 cases also relates, does it, to the period '37,to '39, or to what period? '37 to '39.
A. What I meant to say was before the war and the figure I gave was per annum.
THE PRESIDENT: Thank you.
A. The work caused by these offenses was altogether out of proportion compared with the number of cases that came before the Court of Assizes. At the Court of Assizes every month we spent a fortnight working on those cases, and we had decisions every day.
DR. KOESSL: May I now tell the Tribunal that Exhibit 222 gives the fact about the Schlamminger case, and the Heller-Muendel case is contained in Exhibit 233, Mr. Kunz's affidavit.
BY DR. KOESSL:
Q. What was the average scope before the war, the average scope of the sentences?
A. Naturally it happened every now and then that there was a particularly difficult case like the Schlamminger case or the Heller case, but they were the exceptions. Normally we were concerned with the offenses against the Malicious Acts Law. And concerning both offenses, the scope of the sentences, that is the way I should like to put it, in itself was one year to five years imprisonment; but in the case of a sentence up to three months the prison sentence could be changed to a fine. And I should also like to say that almost without exception the sentences were below the limit of one year, and that the average, that is to say, if one includes all the light cases and the serious cases, was something like 4 to 5 months. That is evident too if one bears in mind that there were many ordinary, simple cases which occurred. At any rate, the sentences in many cases were more lenient than other courts.
Q. When the post of the vice president was under discussion, were any death sentences passed at this Special Court?
A. The reason why you asked this question is -- and that is connected with this entire group of questions -- because the witness Miethsam in his affidavit and also in his testimony as a witness here spoke of the post of vice-president at Nurnberg, and he said that I had been wanted because of my severity concerning the sentences which I passed. One must point out that the problem of the vice-presidency of Nurnberg became topical as far as I remember somewhere around the turn of the first to the second half of the year 1938. That is to say, at a time when perhaps we had not passed any death sentences yet.
Q. What about the discussion about the jurisdiction of the Special Court?
A. Miethsam spoke here very vividly, so vividly that one might believe that all the things of which he spoke were witnessed by him personally. He spoke as if he personally had sat in my courtroom, and listened to my method of conducting a trial, and as if he had read my sentences, all the sentences which were passed within my sphere of activity. He was so lively, so vivid in his description that he was liable to confuse one. Miethsam never in his life read a sentence passed by me or one of my assistants, nor did he ever spend one single second of his life in a session of the Special Court at which I was presiding judge. His knowledge was based exclusively on the information which he received from Herr Doebig, not that Herr Doebig was perfectly informed about the events of the Special Courts at Nurnberg, for he was the superior authority of the court to which the Special Court of Nurnberg belonged. He obtained his information about the events at our Court, in parti cular, for the reason that I forwarded to him every sentence which was passed by the Special Court and forwarded it to him through the fastest channels together with the opinion so that he should always be able to inform himself exactly and speedily about the events which occurred at our court.
Q: Were you under any obligation to submit to him every sentence which was passed within your sphere of work?
A: I was not under an obligation to do so. Naturally, as my superior officer, he had the right to ask to see sentences and to examine them for official reasons, but there was no obligation for me as the presiding judge of the special court to put his work before him as superior.
Q: Why did you submit the sentences to him?
A: The reason was that in view of the nature of those sentences it was always possible that some authority might bother about some matter or other. Those authorities in that case would not have approached me but they approached the superior authorities and that was, in my case, Doebig, the president of the District Court of Appeals. We submitted the sentences to him so that he at any time should be properly informed about the occurrences within our sphere of work. So that in case inquiries or criticisms should reach him, he should be able on his own to reply and reply properly.
Q: Did you not have to expect him to make your sentences a basis for taking steps against you?
A: The fact is that Doebig, as he said here himself, and that was a complete secret to me at the time, for years did complain about me to the Reich Ministry of Justice. If anything had occurred, he could easily have passed on to the Reich Ministry of Justice the sentences which I had submitted to him and he could thus have demonstrated by a concrete case the occasions where we, in his opinion, had made mistakes, or had been too severe. But what is curious is that neither, according to his testimony nor to that of Miethsam, Doebig ever deemed it necessary to forward the material, which he had handed to him on a plate, to the authorities at the Reich Ministry of Justice, and that Miethsam neither felt the need to do so although he took measures against me as a judge only in one single case to read such a sentence.
Q: In Exhibit 156 the Witness Engert says that you extended your position at the special court in Nurnberg on account of your relationships and that it was through that that you built up a powerful position.
The Baur affidavit, Exhibit 157, mentions his close contacts with the Gauleiter. The Gross affidavit, Exhibit 221, maintains that you had contacts with the highest political dignitaries and states that you had conversations with them.
The affidavit by Ostermeier, Exhibit 222, the Groben affidavit, Exhibit 224; the Rauh affidavit, Exhibit 225; the Kunz affidavit, Exhibit 233 also refer to your allegedly big political position. They mention ties with Streicher. The Doebig affidavit, Exhibit 237, makes mention of your position as Gau Group leader for prosecutors and attorneys and also mentions your alleged big influence on promotions. It mentions your relations with Haberkern and the table at the Blaue Traube, the so-called source of your political information.
Furthermore, via Haberkern, you arc supposed to have an oar lent to you by the highest political agencies and through him you are supposed to have enjoyed their favor. It also asserted that at the Blaue Traube, where you discussed with the men whom you knew well, matters of the Administration of Justice, Wilhelm Hofmann, Exhibit 476, asserts that you had exerted your will power via Haberkern and the Gauleiter, if no other way was possible, and that you had had many talks on those matters at the Blaue Traube.
The Miethsam Affidavit, Exhibit 482, charges you with having been servile to the Party and with having been a political fanatic. Would you please tell the Tribunal what was your official relation with the various persons whom I have mentioned and also whether and to what extent those persons know something about your private life?
A: The question is aimed at finding out whether those persons who testified here were at all in a position to make observations which gave them any knowledge concerning the assertion which they have made. It may be of importance in this connection to mention that not one of those people lived in the part of Nurnberg where I lived and that barring a very few exceptions I only met them in passing sometimes at intervals of one to two years, and that outside my official duties. And I can only be surprised as to how they obtained information which they divulged here in a manner as if they had been present and had seen everything with their own eyes and heard everything with their own ears.
In reality that was not possible for them. My official relations with the various individuals -- well, first of all, I think it is important to say who of those persons ever came to my home and the only one who came to my home is Ferber, who was a witness here. And he did not come to my home when I was there, but he looked in. That was Christmas 1944. Ferber, to do me a favor and to make Christmas 1944 pleasant for me, brought to my home a small case of wine and also two bottles of vermouth. He did not allow me to pay for them and he especially pointed out that those bottles were meant to strengthen the old ties of friendship. That was four months before the catastrophe.
My official relations with Engert were the following: At first Engert was an associate judge at tho special court with me and ho was also my deputy. Later on he became senior public prosecutor with the general public prosecutor and he, therefore, had official relations with my sphere of work.
Gross came to Nurnberg about the middle of 1942 and he came as an associate judge. As far as I know he was a member of tho special court until the end. Ostermeier was also an associate judge at my special court.