The SD man told me that during the war, fathers of families of 4 or 5 children were sent home, having been paid 28 marks a week. He thought that I ought to know about that because it might, after all, happen that in view of that bad pay people would get fed up and therefore might more easily make a careless political statement. As I had known nothing about conditions at the Hermann Goering Works and as cases were always being brought to our attention which had arisen at those Works, I was very interested in hearing about conditions there. Therefore, I and my deputies from that time only in all those cases, attached particular importance to finding out first what the man's earnings were, and secondly to what extent the bad pay had caused dissatisfaction and a mood out of which he might have made remarks of that kind.
Q. Witness, would you tell us as briefly as possible what were your relations to the agent in Kamm?
A. I can say that quite briefly because I never got to know any agent or any SD man at all in Kamm.
THE PRESIDENT: That's sufficient. If he didn't know him, just let him say so and stop there.
A. And to conclude this matter, I may say that apart from the man from the SD whom I have mentioned now, in the entire area of the District Court of Appeals, I knew no other SD offices and had no contacts of any kind with any other SD offices.
Q. In the passages which I have mentioned, Feber states that according to your own statement, and I quote, "Also from the Reich, certain phenomena which occurred in the Ministry of Justice were critized." He mentions the Special Courts of Munich and Bamberg, and one or two judgments passed by the Special Court at Saarbruecken. According to your view, you had been given the task, and I quote: "To criticize those two judgments, not so much from the legal point of view, but the ideological point of view because politically speaking criticism had been exercised concerning these two judgments which were rather too lenient."
Which judgments of the Special Courts at Munich, Bamberg, and Saarbruecken were under discussion, and what was the position you took?
A. The brief discussion of those events is characteristic in this way. From the Special Court in Munich I never saw any judgment that we passed whatsoever unless for official reasons we had asked for files from Munich to use them together with our files, but I do not believe that case actually arose. In no case did I ever ask the SD to receive a judgment which was passed at the Special Court in Munich, nor did I ever read a judgment which was passed by the District Court of Appeals at Bamberg. Here too, the only possibility is that for some official reason or other, files from the District Court of Appeals at Bamberg had been sent to us, but if that had happened that would have been done in the usual, normal routine channel for factual, official reasons. I never received a judgment passed at Bamberg via the SD. What actually is involved here is an entirely different matter, and it is this. The Reich Food Estate at a certain time during the war -- the date of which I don't remember -- had a conference at Munich. At that conference many speeches were delivered in which the affairs of the Reich Food Estate were discussed. Representatives from Munich and Bamberg were asked to attend this conference, and they were to be designated by the general public prosecutor in Munich or Bamberg. This Public Prosecutor Spiess from Bamberg appeared and gave his views on the subjects discussed at the conference. That gentleman from Bamberg spoke for example, about the problem of black slaughtering. His views were impossible not only in my opinion, but also in the opinion of my assistants of Ferber, and I believe half of the world it was a comic point of view; and therefore, we talked about it a great deal in our circle. The representative of the general public prosecution at Munich took up a similar position. All those points of view were compiled in one memorandum, and that memorandum went via the SD leadership and was passed on, and it was made available to me by Elkar, so that I should see what points of view had been voiced at the conference of the Reich Food Estate on the subjects discussed there.
These discussions arose concerning this Munich and Bamberg points of view, and it must be those discussions which Ferber had in mind.
One must distinguish the Saarbruecken cases. Elkar mentioned those too. I came in touch with the Saarbruecken affair in the following manner. One day Elkar came to see me and brought me socalled morale report which did not originate from Nuernberg but from the Saa-Palatinate area. Those morale reports dealt with the attitude of the population concerning judgments passed by the courts in the Saar-Palatinate in the field of war economy. That report only dealt with cases of that type. It was handed to me because they were in need of a man who, from a purely professional angle, would give his opinion on the questions which the population believed it had to criticized, and because one knew me, these matters were passed on to me with the request for me to give my opinion. I did give my opinion, but I must say that I gave my opinion only as best as I could for the material consisted of a sensational report, if I may put it that way, that is to say reports such as a layman would write them down at a trial. The problems had been hinted at but the facts of the case were not mentioned. Therefore, one could only roughly give one's view by saying, well, a certain thing might have been meant in a certain way, and in this and that case one might say the following. I made my report in what manner and it was passed on. What happened to it subsequently I don't know.
Q It is alleged that you said on one occasion, witness, the Munich and Bamberg or perhaps only the Bamberg people were charitable people and you were referring to the sentences passed by the Special Court at Bamberg.
THE PRESIDENT: The question simply is whether you said that or not. You can answer whether you said it or not. Did you say what counsel just said?
THE WITNESS: I believe for certain that I said that.
THE PRESIDENT: That is enough.
THE WITNESS: But if you want to know the exact context and what purpose was aimed at -
THE PRESIDENT: I think it is necessary.
BY DR. KOESSL:
Q In connection with the discussion of cases that occurred at other special courts, Elkar stated in Exhibit 411 that your work, in a certain sense, had been of importance to the Reich. What does that mean, "of importance to the Reich"?
A Generally speaking, I did not attribute such outstanding importance to the work I did as attributed to it today, and I only had a very limited time to spend on that work. Consequently, such concepts as importance to the Reich, etc., didn't enter my mind. At any rate, I could ascertain some tangible success I never noticed of all these suggestions which we made. But that wasn't only the case with us. It was the same in the whole field of activity of the Party. That is to say, with a great deal of organization one kept people very busy without any tangible results. Importance to the Reich meant, as far as I can imagine something like this; that a certain matter in its significance went beyond the local sphere.
Q According to the Elkar affidavit, Exhibit 411, you are also supposed to have given your opinion on certain judgments which had been passed at Bayreuth and on which the SD of Bayreuth wanted certain information. These sentences are supposed to have attracted attention on account of the legal treatment and on account of the sentence imposed. Did the SD sector in Bayreuth ask the SD office here in Nuernberg or did they ask you personally?
A I had nothing to do with the SD sector in Bayreuth, nor do I remember that at any time I held a sentence in my hand which affected the area of the SD office in Bayreuth. I can't remember that I was ever asked whether I considered a sentence from there right or wrong.
Q You mentioned to day that at a conference in May, 1942, you wore invited with a view to answering questions.
A. More than what I have already said today in answer to that question, I can't tell you either.
Q Elkar mentioned that you said at that time, that from the facts of the case alone one should be able to arrive at a judgment and any obstacles in the way of the death sentence should be eliminated Do you remember what meaning that remark of yours may have had, that remark which Elkar cites here?
A The passages which he cites are typical for Elkar. I knew Elkar from the time he was training under me .. He said here that years after he passed a state examination he was unemployed and ran around without any work. These passages he quotes here in their logical construction come straight out of his own head. How else should one arrive at a decision of one were not to base one's judgment on the facts of the case?
And if he is talking of obstacles in the way of the death sentence, I mean, if he means the obstacles which have to be eliminated that can mean that one must look for the facts of the case, facts of the case which must be proved so that one can pass a judgment. I can't really judge what Elkar meant to say by those words.
Q Well, we are going to discuss only one more point. Elkar asserts that you had said something to the effect that by appointing the same people as members of the Special Court and of the penal chamber that is to say, by making the same people hold both jobs, difficulties would have been obviated which might otherwise arise and possibly lead to reopening of the trial.
A There is an incorrect tendency in evidence here. This is what really happened.
Normally, that is to say, at the regular courts, the decision about an application for reopening of trial is always made by that court which passed the judgment that has been contested. That is to say, the decision is not made by a different court or by a higher court. Furthermore, it is of importance in the case of reopening of trial and that, in fact, is the main point, that the first decisions which are made there, that is to say, the decision as to whether an application is to be admitted at all, can be brought to a higher court by way of complaint.
The penal chamber -- and that was true in Nuernberg -- which had to decide about such applications for reopening of trial, sometimes was staffed by members of the Special Court, so that the point of view which had been decisive at the trial, that is to say, that the sentence was already at the court which had to make a decision about reopening of trial. To a certain extent that point of view was adhered to. However, a legal point of view could not be brought into the field against having the same judges sitting at both courts, on the contrary the staffing of the penal chamber with members of the Special Court was legally uncontestable. Furthermore, the creation of such courts was not dealt with by the presiding judge, but such institutions were created by the offices of the Administration of Justice, that is to say, by the Presidents of the District Courts and Districts Courts of Appeal.
The institution which is coming in for criticism here did exist already at a time at which I wasn't in Nuernberg yet at all. But the most important thing is, that from a legal point of view the arrangement could not be contested. And, furthermore, naturally there was a possibility to appeal the decision by the penal chamber by appealing to the district court of appeals.
Q We have now discussed the majority of the points of view which have been mentioned generally in connection with the political conditions and with which the defendant Rothaug has been charged, and, therefore, I am going to leave that field now, and I will next deal with the problem of the Reich Public Prosecution, because in that way we will tie up to a certain extent the matters concerning Reich Public Prosecutor Lautz, and so that later on we will not be interrupted again concerning the main points, that is to say the special courts. Witness, how is it that you came to join the Reich Public Prosecution, and when was that?
A On the 1st of May, 1943 I assumed my office with the Reich Public Prosecution at the People's Court in Berlin.
Q When did you hear about that for the first time; what occasion was it?
A The first time I heard that there was an intention to transfer me to the Reich Prosecution at Berlin was in January, 1943, and the occasion was this: In January 1943 the Reich Minister of Justice, Dr. Thierack, made a visit to the Gau of Franconia to introduce the policy which he was planning into the Gau Franconia. For that purpose a so-called roll-call was held, and that political roll-call was attended by the political leaders and the "Rechtswahrer", the legal administrators of the Gau Franconia.
Q I am handing you a piece of paper which is an invitation.
A Yes, this is an invitation from the National Socialist Lawyers League, Gau Franconia, sent to its members. The invitation is dated 8 January, 1943. It is signed, Gau Organizational Administrator, signed Dr. Engert, Organizationswalter, Dr. Engert.
Q How did that invitation come into your hands?
A I found it among files which I studied here in prison, and which were part of the files from the former Special Court.
Q What do you see on the back of the invitation?
A Notes, which I had written down for the Schmidt case.
Q What conclusion do you draw from those notes?
A Evidently when the Schmidt case was finished, I left that piece of paper in the Schmidt file, and I conclude furthermore that this must be the invitation which was handed to me at the time in order to make me attend that meeting at the Kultur Verein.
Q Would you please read out the text?
A "Invitation to a joint roll call of political leaders and jurists of the Gau Franconia, on Wednesday, 25 January 1943, at 19:30 at the Kulturverein, in Nuernberg; Reich Minister of Justice Dr. Thierack and the bearer of the sovereignty of the Gau Franconia, Deputy Gauleiter Karl Holz will speak. All members of the Gau Franconia, of the NSRB, the NS Lawyers League, to attend this roll call. This invitation is good as a pass to enter. The Gau Organizations walter, administrator, signed, Dr. Engert.
Q The witnesses Mietsam and Ferber mentioned that it was significant that you personally did not attend the reception of the Under Secretary Rothenberger at the railroad station, but that you sent just a small man, and that man was Dr. Engert. According to the position which Dr. Engert held here, was that of loss significance than the position which you held in the NS Lawyers League?
A The Gauorganizationswalter, administrator of the NS Lawyers League, is one of those positions similar to the one I had in the NS Lawyers League as Gau Gruppenleiter. Engert dealt with all questions connected with organizations, whereas, I dealt with questions concerning judges and public prosecutors.
Q Have you finished?
A No. Well, he held a position that was neither of more significance nor of less than my own in the NS Lawyers League. At any rate, he was active.
Q What topics were discussed at that meeting, and who were the speakers?
AAs is evident from the invitation slip, Thierack and Holz spoke. As to the details which were discussed there, I don't remember them, but purely from memory I would say that the tendency of the lecture was the close cooperation between the administration of justice and the Party. Naturally, that did not mean that the Party was to be allowed any influence on the administration of justice. Rather -- that was the entire goal of Thierack's policy -the intention was on the part of the administration of justice, as far as possible, to avoid friction with the Party, and in order to eliminate attacks from those quarters, as far as possible.
Q Did you -
A One moment -- and that was the tendency displayed by individual offices of the administration of justice and all the offices of the administration of justice in the laender, to what extent Thierack went too far in his fraternization with the Party, I cannot judge.
Q Did you attend that meeting?
A Of course I attended that meeting.
Q What happened after the meeting? The witness says here that you sat with Dr. Thierack; and therefore, I am asking you to tell us briefly whether you know Dr. Thierack at that time and what happened after that meeting?
AAs I have told you already, I did attend the meeting. The speakers were Thierack and Holz, and the tendencies of the speeches that were made at that meeting were close cooperation between the Party and the Administration of Justice.
THE PRESIDENT: You have just repeated what you said some time ago -- complete repetition.
A Well, I just lost the thread and that is why I wanted to establish the context again.
THE PRESIDENT: You don't need to do that.
AAfter the meeting the following happened. I was asked to go to the Deutsche Hof because the Minister wanted to talk to me. I didn't like that altogether for many reasons, but mainly my reasons were of a personal nature. I did go to the Deutsche Hof. When I got there a fairly large party had already assembled there around a table. As far as I remember, among them were the Minister, all Presidents of the local authorities, the Commanding General, the Gauleiter, and a number of other people.
Q Did you know Thierack before?
A I knew nothing of Thierack; I didn't know him.
Q And how did it happen you got into a conversation with Thierack?
A That was because he asked to go and see him, and after all he was my superior and he asked me to go and see him; there was nothing I could do, except to go. I sat next to him, and from that I concluded that he wanted to talk to me about the Ramsbeck case which has been discussed here several times. I should like to say that was a case of fraud. An old Party member and Ortsgruppenleiter, local group leader of Nuernberg, had sold a small cloth factory, and in selling that factory he had committed fraud, and had cheated a poor young couple in a despicable manner. At first an attempt was made to suppress that case. There were negotiations with the young couple, and the object of the negotiations was to silence the couple by paying them for their silence. The money was paid, but the woman was incapable of calming down, and she managed to throw a letter at Hitler on the Obersalzberg. In that letter she described what had happened. Subsequently the Party instituted investigations on a large scale. The final result was that it was handed over to the ordinary courts. I tried the case, and, as I have already stated here, Ramsbeck was convicted.
Then there was a scene between Holz and me, and he made a complaint about me to the Minister of Justice; and when, in January of 1943, the Minister came to Nurnberg, he brought that complaint along with him; and now, he wanted to discuss that matter with me there at the Deutsche Hof. For that purpose, Holz had brought along a legal advisor of Ramsbeck's. Thierack started on the Ramsbeck matter by saying that under all circumstances a way had to be found, in a discussion with Holz, to calm Holz down as far as this case was concerned. He--Thierack--attached importance to the fact that I would attend that discussion. I told him that I would no longer discuss these matters with Holz. I told him that I had talked matters over with Holz, as a result of which Holz had comlained about me, and that he--the Minister--himself had gotten the complaint. I did not think it advisable to have another meeting with Holz because Holz would only use that as a precedent to act in the same way in the future. I also thought that if he, as the Minister, thought my sentence was wrong, it was for him to choose those methods which were laid down in the law. He could, after all, quash the sentence and pardon the man. Thierack then told me that that was out of the question, for he considered the judgment altogether correct.
Q. Was that what brought about your transfer to the Reich Prosecution?
A. That did not bring about my transfer to the Reich Prosecution, because that transfer had been agreed upon before. It was in this connection that Thierack discussed the matter for me first time.
Finally, he said that my attitude was correct as far as the Ramsbeck case was concerned. He told Holz that a meeting was out of the question, whereupon Holz sent his legal advisor Daniels home.
In the further course of our talk, Thierack told me that he thought it advisable to remove me from the Nurnberg conditions, and to put me into a job with more scope. As to how he wanted to set about that was evident from the fact that after that he told me there was a vacancy at the Reich Public Prosecution at the People's Court and that he was thinking of me to fill the vacancy. That was the first tine I heard of these plans. I asked him to give me a fortnight to think things over, and it seemed to me that Thierack was willing to agree. However, after a week Holz asked me to come to see him; he informed me that Thierack had written to him and had said among other things that he had already taken steps regarding my transfer to Berlin. Holz also told me that there was no further need for me to think matters over. Later on, the transfor arrived, and on the 1st of May 1943, I assumed my office in Berlin.
Q. What section did you deal with there; what was your sphere of work (Referat)?
A. To begin with, as the defendant Lautz has already stated here, I was placed in charge of the section for high treason.
Q. Was that limited to the Reich territory?
A. Yes, it was limited exclusively to the Reich territory and it extended roughly from Thuringia to the southern borders of the Reich.
THE PRESIDENT: You mean Altreich?
DR. KOESSL: Yes, Altreich;
THE WITNESS: That is to say, Altreich together with Austria.
DR. KOESSL: That is, as the Reich existed , up to 1 September 1939.
THE WITNESS: As it existed before the war.
DR. KOESSL:
Q. Did you have anything to do with foreigners in your section? Did any Jewish cases occur there?
A. I don't know of one single Jewish case. I believe that on the 1st of May 1943, no cases concerning Jews were submitted to us.
Q. And when did you go to Potsdam?
A. I went to Potsdam on the 1st of December 1943.
Q. When was it that cases of undermining of military morale came to you?
A. On the 1st of January 1944, I was entrusted with those cases, and that happened in just the way in which the defendant Lautz described it here.
Q. To what spheres did your competency extend as far as cases of undermining of military morale were concerned?
A. To the entire territory of the Reich, with the exception, naturally, of Poland, Czechoslovakia, Alsace and Lorraine; that is to say, all the German territories.
Q. So again you are referring to the Reich such as it was on the 1st of September 1939?
A. Yes.
Q. In cases of the undermining of military morale, did you have anything to do with foreigners?
A. No, that did not occur, and it was not possible that it could have occurred.
Q. Did you have to deal with all cases connected with the undermining of military morale?
A. When you put that question to me you have to bear in mind that the cases of the undermining of military morale, such as they were dealt with by us, consisted in remarks that were made. According to the aim which people had in making those remarks -
which were of a different character, or of a different nature-they could constitute high treason if the remarks aimed at overthrowing the order of the state from within. The same statements however could, be designed to undermine military moral if, for example, they were aimed, above all, at undermining fighting strength, at undermining the will for self assertion, or it might have been the aim of such remarks to overthrow the NSDAP. Also, such remarks could also be designed to give aid and comfort to the enemy. It always depended, and that is how we had to evaluate matters, in what direction the center of gravity lay. If the center of gravity was on high treason, the case was transferred to the High Treason Section. If undermining military morale was the main thing, then the case came to me. If the main contents of the remark were aiding and abetting the enemy, then the case was sent to the section which dealt with aiding and abetting the enemy, even though it was also connected with undermining of fighting morale.
Therefore, one cannot simply say that a case, because the undermining of military morale was involved in it, was dealt with by my section for that very reason alone. If the case was of any particular importance for any reason whatsoever, in that event it was never sent to my department, which was overburdened already, but it was sent to Parisius' department, which was not so overburdened.
Q. Who was Parisius?
A. Parisius, like myself and Barnickel, was Reich Public Prosecutor, and he was also the Chief's permanent deputy; that is to say, he was Chief Reich Prosecutor Lautz's permanent deputy, and I believe that as far as signatures were concerned, he acted not only by authority of Lautz, but also on behalf of Lautz.
Q. Where is Parisius?
A. Parisius is at large; I don't believe he was ever under arrest.
Q. Did you always deal with all the other cases of undermining of military morale that occurred in the Reich territory?
A. No, these cases of undermining of military morale -- roughly from March of 1944 until February of 1945 -- were split up between me and Reich Public Prosecutor Franzky, and the distribution was done by even and odd numbers. That is to say, they weren't distributed by geographical areas or according to the type of case, Therefore, half of the cases came to me and the other half was dealt with by Franzky.
Q. Was Franzky an independent man alongside of you?
A. Yes, quite independent, side by side with me.
Q. Why, in February of 1945, did you again take on all cases?
A. Well, one has to bear in mind that roughly, from the autumn of 1944, when the heavy air raids on Berlin started which bombed things out of existence at random, an orderly process of work at the central authority was no longer possible because almost every night attack disrupted Berlin's communications. In consequence, the staff of workers either didn't appear at all, or appeared later during tho course of the day, soon to leave again. And what was a particularly disrupting factor was that from the end of 1944 we hardly got any mail into the office and we hardly got any out of the office.
As far as orderly proceedings in Berlin itself were concerned, one couldn't think of conducting them there because we didn't get people to come in from the provinces. Either they really couldn't get to Berlin because there were no trains, or they were afraid to go to Berlin, or they had other personal reasons and simply didn't come when they were summoned. Because the mails didn't arrive, no new denunciations came in so that, from January 1945 on no new cases came in. Therefore, there was no longer any reason to leave this section, which had been split up between Franzky and me under A and B, in being. Therefore from February 1945, I again took on the work of the whole section, and, in effect, one only had to deal with old cases and finish them off.
Q: Was your work as Reich Public Prosecutor all done in Berlin?
A: I went out of Berlin very often - I'd say relatively often. My guess is that on average, I was absent from Berlin eight or ten days a month.
Q: Herr Lautz has given a detailed account of the work at the department. He described his position and the position held by his subordinates. He also spoke of the authorization to sign, and he spoke about reports and the extent of those reports. Is there anything you would care to add to that account?
A: What Herr Lautz said here is entirely in accordance with the facts and it has been stressed here sufficiently that originally it was said that the Reich Public Prosecutor was at the head of that office, and that was, in fact, correct at the beginning but, later on, the position of a Chief Reich Public Prosecutor (Oberreichsanwalt) was created.
The Reich Public Prosecutor was not superior to any other member of the office. That is to say, he did not have to issue instructions to any one. He was merely a subordinate of the Chief Reich Prosecutor (Oberreichsanwalt) and the Reich Ministry of Justice.
Q: In connection with the authority to sign, a subject which has been discussed here again and again is that of signing "by authority" and "on behalf" (Im Auftrag und in Vertretung). Another thing that keeps on cropping up is that some document or other was initialed. What exactly were the meanings of the words "by authority" and "on behalf"? (Im Auftrag and in Vertretung)?
A: The man who signs "on behalf of" someone is deputizing for the other person's will. That means to say, he, replaces the will of the person who normally signs. That is to say, he assumes full responsibility. He has to decide in the way in which he, the deputy, considers right. Therefore, he is not bound by any instructions of the person for whom he deputizes. Things are different when the signature is "by authority" of another person. The person who signs "by authority" of someone else (im Auftrag) does not, by his own will, replace the will of another person, but he acts according to specific or general instructions of another person. His will must aim at acting in accordance with the will of the person who gave him the commission. The initialing of a document merely means that one initials it and, by placing one's initials there, one shows that in some way one has played a part in dealing with the document, but it does not mean that one assumes final responsibility.
Q: Did you ever have the authority to sign as a deputy?
A: No.
Q: How many cases of undermining of military morale did occur? In your affidavit, Exhibit 473, you mentioned figures. Are those figures correct?
A: They are not correct, as I mentioned already in the affidavit. At the time that question was asked of me very suddenly. I don't mean to say it wasn't the intention of the interrogating officer to surprise me. On the contrary, the interrogation was in every way correct and proper, but I said at the time that it was impossible for me to make exact statements. At that moment, I had an idea that somebody had said that a certain number of cases had occurred per week, and I believed that I could arrive at a result by multiplying that figure by four. However, later on I remembered that there had been certain disruptions which might lead to an entirely incorrect judgment. On account of the disruption, which I have already mentioned due to continuous air raids it happened that at the office a large number of case files accumulated without their being passed on to the section which had to deal with them. In order to remedy that state of affairs, three or four times as many people were employed in the office and, suddenly, large numbers of cases were submitted to us, but they had actually occurred over an extended period of time. I remembered that a very high figure had been mentioned to me. The multiplication of that figure to make it work out all right for twelve months would have made me arrive at a figure that would have been altogether impossible, but, in the meantime, my interrogation was finished and there was no possibility nor opportunity for me to correct my former statements and to point out that I had arrived at my estimate on a faulty basis. But I did say at the time that the figures might possibly be far removed from reality.