Concerning this very important question in this trial I am not yet able to give any reliable data as far as figures go because I simply can't do so. But I do remember this: every day, or at any rate, almost every day, I used to take home with me in the evening all the material concerning new cases, and I worked on them until 1:00 o'clock in the morning. All the new material that had come in during the day used to fill my brief case to capacity. The files themselves weren't very extensive, and I estimate that I took home with me every evening something like thirty cases. I dealt with them at home and worked on them until about 1:00 o'clock in the morning. Next morning I passed them on to the section for further work on them or some times they were passed on to other sections.
Q: Those thirty cases which came in every day, were they all dealt with in your section?
A: You mean, were they all dealt with by the Reich Prosecution?
Q: Yes.
A: Yes, they were, but new it becomes necessary to go into detail. These thirty files were quite a lot for one evening, but when one knows how to read files it can be done very quickly, and it doesn't take long to find out whether a case had to be dealt with by our section or whether it had to be passed on. The so-called report from the Gestapo helped me in finding out who was to deal with the case, and that report included material on the actual investigations which have been discussed here. The files contained all the records of the investigations. That is to say, the records of interrogations of the witnesses and experts, reports on certain local conditions, etc.
At the end, there was a so-called summary. That summary was not an institution of the Gestapo, but it was an institution of the police as such, and its purpose was, the Public Prosecutor and, later on, the judge - to afford an opportunity to inform himself as quickly as possible what the files were about. For example, in order to ascertain whether a case was to be dealt with by us or whether it was to be transferred to the district court of appeals, to find that out, as a rule I only needed to read a few lines of this summary and when I had read those few lines I could say with absolute certainty that we would not deal with that case but hand it on to another section.
THE PRESIDENT: Dr. Koessl, do you desire to repossess yourself of your prospective Exhibit 166?
DR. KOESSL: Yes.
THE PRESIDENT: I'll leave it here for you.
The Tribunal will recess until tomorrow morning at the usual hour.
(A recess was taken until 0930 hours, 13 August 1947)
Official Transcript of American Military Tribunal III in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 13 August 1947, 0930-1630, The Honorable James T. Brand, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III. Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honor, all the defendants are present in the courtroom with the exception of the defendants Engert and Schlegelberger, who are absent due to illness.
THE PRESIDENT: The defendant Engert has been excused.
The defendant Schlegelberger is temporarily absent owing to illness. We have had a report on his condition this morning to the effect that it would be possible for him to attend court, but that it is advisable that he have a few days of rest. The Tribunal is glad to extend to him the benefit of a few days of rest to the end that he may be able to return to court soon. I take it that is in accordance with the desire of his counsel.
DR. GRUBE: Yes, sir.
THE PRESIDENT: Yes. He is temporarily excused. Let the notation be made.
You may proceed.
DR. SCHUBERT (Counsel for the defendant Oeschey): May I, for a very short moment, claims the attention of the Tribunal? I wish to talk about a difference of opinion which has arisen between the Prosecution and myself. I should like to point out to the Tribunal that up to now, thanks to the accommodating attitude of the Prosecution, I have been able to settle all such differences of opinion immediately. I regret that in this case an agreement with Mr. La Folette was unfortunately impossible.
To begin with, I should like to describe what actually happened and how the difference of opinion arose.
In the court prison here -
MR. LAFOLLETTE (Interposing): If Your Honors please, I will send to the Bench three copies of a paper entitled, "Interpretation of Rule 23 as Amended, 3 June 1947." It is a uniform rule of procedure of the Military Tribunals as a.greed upon by the Prosecution and the Defense. This is signed by Mr. Benjamin B. Ferencz for the Prosecution, and Mr. Wartena for the Defense. I send it to the Bench because I think that the discussion which Dr. Schubert and I will have--or rather, the argument--as to the proper interpretation of Rule 23 and this interpretation, will be clearer to the Court if I furnish them with this recent rule.
This rule first came out, as I understand it, on Monday August 11, 1947, at least, I was advised yesterday by Mr. Ferencz and Mr. Wartena that that was the effective date of it. If I am wrong, Dr. Schubert may correct me.
DR. SCHUBERT: In the court prison here there is a man named Karl Schroeder, who formerly was the Senior Public Prosecutor in Nurnberg. Earl Schroeder was brought here by the Prosecution. He has deposed an affidavit for the Prosecution, and the Defense has cross-examined him with reference to the affidavit. All that was done while the Prosecution was submitting its evidence. The Tribunal approved Schroeder as a witness for me by a Court Order issued on the 23rd of June, 1947.
Up to now it has always been possible for me, or at any rate, I have repeatedly had the opportunity to talk to a witness without a representative of the prosecution being present. On Saturday, when I asked for the witness, a representative of the prosecution came along and intended to he present during my examination of the witness. I protested, and I discussed the matter with Mr. LaFollette. However, as I have already said, we were unable to reach an agreement.
Mr. LaFollette bases his opinion on Article 23 of the uniform rules for procedure issued by the Military Tribunals. That Article 23, on the 3rd of June 1947, was amended by the majority of the judges of the Military Tribunals here. A procedure has now been established which abbreviates and facilitates the previous method of procedure. The two methods, however, differ on one essential point. Before the 3rd of June 1947, when a defense counsel examined a witness, a representative of the Court attended, whereas now a representative of the prosecution attends these examinations.
According to its introduction, Rule 23 refers to witnesses or prospective witnesses for the defense, who arc detained in the Nurnberg prison. As the prosecution, too, realizes, that rule requires an interpretation, and it has been interpreted by agreement between the prosecution and the defense; and that interpretation has just been submitted to the Tribunal by Mr. Lafollette. That interpretation in itself contains a change of the rigid text of the introduction to Article 23 which I cited earlier. I refer to figure "2" of the interpretation which the Tribunal has before it.
According to the rigid wording of the introduction to Article 23, one might assume that no defense witness may be heard without a representative of the prosecution being present, whereas under figure "2" of the new interpretation, an exception is made.
These are the circumstances in the case of Schroeder:
The Prosecution brought the witness here; the witness testified for the Prosecution, and there was a cross examination and a redirect. The witness has now been used to his fullest extent by the prosecution, but up to now the prosecution has not yet formally waived its right to use him as a witness, and such a waiver is usually postponed for some time according to the usual practice of the prosecution.
On the other hand, I have been permitted to call this witness as a defense witness, and not only -- and I wish to emphasize this -- has it been agreed that I may use him as a prospective witness, but it has been agreed that he is definitely going to be a witness whom I will call before this Tribunal.
All the same, as is evident from the procedure, I have no opportunity to talk to that witness without a representative of the prosecution being present. I can entirely understand the interest which the prosecution has in hearing what the witness tells the defense counsel. On the other hand, I consider it a curtailment of the defense, which is altogether intolerable, if the prosecution--that is to say, the very prosecution which is interested in the case -- is present at the examination of such a witness and has an opportunity to listen to every word the witness says and to take it down in writing. Not in this case, but in other cases I have seen it happen where the prosecution brought a stenographer along and therefore actually had an opportunity to have every single word taken down.
Furthermore, it is Quite understandable that a witness, in the presence of a representative of the prosecution, may hold back one or two statements which he might have made if he had been alone with the defense counsel.
The new rule 33, which was put into effect by the Tribunal on the 3rd of June 1947, was intended to be an improvement of the procedure which, until then, had been rather involved.
No doubt it is an improvement from a technical point of view, But the former rule had one advantage, to which I referred earlier, the defense counsel was able to hear the witness in the presence of a representative of the Court -- a neutral representative of the Court -- who merely saw to it that the subject of evidence was adhered to but who, for the rest, had no interest in the witness's testimony.
I assume that the Tribunals, when they issued the new ruling of Article 33 on the 3rd of June 1947, did not intend to have the consequences arise which I have just described. I Therefore ask the Tribunal to make a ruling concerning this case.
THE PRESIDENT: Just a minute.
It will be helpful for us to know the exact issue. I take it that the exact issue which you present is simply this. You object to having a representative of the prosecution present during your conference with the witness which has been approved as a defense witness, and counsel for the prosecution insists upon having a representative of the prosecution present. That is the complete statement of the issue, is it?
DR. SCHUBERT: Yes.
MR. LA FOLLETTE: No.
THE PRESIDENT: Is that your view, Dr. Schubert?
DR. SCHUBERT: Yes.
THE PRESIDENT: Are you in agreement with that issue? Let's find out what the issue is first.
MR. LA FOLLETTE: I am not in agreement with the issue, but in a very few minutes, if the Court will indulge me, I will state the issue as I see it.
THE PRESIDENT: Yes.
MR. LA FOLLETTE: The issue is this, with reference to the witness Schroeder -- and then I wish to discuss it -
The witness Schroeder was first arrested by the Government of the United States and. put in the Nurnberg jail. He was a witness for the prosecution. He has never been released from the Nurnberg jail, nor has the prosecution in this case ever issued a statement to the warden of the jail, or to any of the offices which are entitled to receive that information, that the prosecution has abandoned its desire to hold him as a prosecution witness or to have him sent from the Nurnberg jail to some other place of detention. In, other words, this witness Schroeder, under the laws generally prevailing, if sent from the Nurnberg jail, would still be sent to a work camp or detained somewhere because of his classification, as I understand it.
Now, to make clear again what this issue is, there has been a man brought in here by the name of Kreisleiter Zimmermann. He was detained somewhere away from Nurnberg, but I think he was the Kreisleiter of this area. He was brought in from his other place of detention, at the request of the defense, and placed in detention in the Nurnberg jail because he can't be permitted to be free. As to that man I am raising no objection.
I think these two illustrations will clarify the issue as I see it.
Now, Rule 23 as amended, must remain in existence and can not be altered by any administrative interpretation, although either side may waive any rights which they might have under it; but to the extent that they do not, I do not believe that any representative of the prosecution or representative of the defense has a right to make a binding administrative construction which is contrary to the provision of the rule.
The first statement or paragraph of Rule 23 says:
"In all cases where persons are detained in the Nurnberg jail either as witnesses or prospective witnesses for the defense and counsel for the prosecution or the defense wish to interview or interrogate such witnesses, the following procedure should be followed."
I go down to paragraph "2":
"In case the prosecution wishes to interview or interrogate such witness, counsel for the defendant or defendants involved shall have the right to be present. In case defense counsel wish to interview or interrogate such witness, a representative of the prosecution shall be entitled to be present."
Now that refers back to all persons who are detained in the Nurnberg jail, as this Tribunal and the other Tribunals have written the rule, and, to the extent that I am willing to waive that provision, I must insist on it and I must ask that this Tribunal enforce its rule.
No one else can waive that for me by an executive or administrative interpretation.
Now, in order that the Tribunal may be further advised as to what progress has been made heretofore: After this amendment came out there arose disputes between the prosecution and the various defense counsel that the prosecution, after the defense counsel had fixed a time for interrogating a witness detained in the Nurnberg jail, construing the words "a representative of the prosecution shall be entitled to be present", asserted that the prosecution had the right to disagree with the time which was fixed. That created a large backlog, and as far as I was concerned, with my consent, I said, "That is foolish; we will in some way attempt to comply with the hour fixed by defense counsel," so that we did not insist that the words "entitled to be present" meant that we should fix the time of the hearing, so that has been waived.
Now, we come to this administrative interpretation, which I have placed before Your Honors. I think what is pertinent are paragraphs 2 and 3:
"A defense witness brought to the Nurnberg jail by the defense may be interrogated by defense counsel without a member of the prosecution staff being present."
That is the Kreisleiter Zimmermann case. I still think it is contrary to the rule but I am willing to let someone waive that for me, that makes sense, because the rule says that anyone detained shall be subject to the provisions of the rule, and- clause 2 - I am repeating but I must reiterate - says that a representative of the prosecution shall be present.
I now go to 3 of the administrative interpretation:
"If defense counsel wishes to interview a prosecution witness" that is Schroeder - "or a person not classified as either a prosecution witness or a defendant, defense counsel will serve notice on the prosecution as to the date and hour of the proposed interrogation.
The prosecution shall be entitled to have a representative present during the interrogation."
Now, even the administrative interpretation, let alone the rule, requires me, unless I choose to waive it - and I do not in the case of Schroeder - to insist upon my right to be present when Schroeder is interrogated. Now, the Court can make a new ruling and deprive me of that right and I will say nothing about it, but as long as I have that right I must insist upon the privilege of asking for it or waiving it if I see fit, because it is a right which I have not been deprived of by the rule nor by this interpretation.
Now I want to say one thing more and then I am finished.
From time to time requests are made of the various prosecution team leaders to indicate witnesses detained whom they no longer care to have detained in the Nurnberg jail, but who are in a category where they would not be permitted to go free once they were sent out from the Nurnberg jail. In other words, if they were dismissed from the Nurnberg jail, they would go to a work camp or some other place of detention. I said yesterday to Mr. Ferencz and Mr. Wartena - who called on me, after Dr. Schubert and I talked about this on Saturday, and after we talked about it yesterday morning - at about 2 yesterday afternoon, but before I gave Dr. Schubert my final answer yesterday after Court. I said: "I will go this far, that if the record shows that I have released Schroeder, so that technically he is no longer a witness or a. person called by the prosecution and detained in the jail but mechanically it has not been possible to move him out, I will consider that as a reconstructive release so that we don't have to go through the silly procedure of sending him out to Dachau and then having Dr. Schubert request him and bringing him back, because under this interpretation 2, in that instance, despite the provision of the rule which I think does not permit provision 2 of the interpretation to stand, I am willing to abide by that in the interest of making progress."
It was determined, as I felt quite sure, that the prosecution in this case - meaning myself - had not seen At to order the release of Karl Schroeder under any circumstances.
Under those circumstances, the rule, I think, in a sense requires me, but certainly permits me, to ask for a strict interpretation of the rule, and I am asking for it.
THE PRESIDENT: Does the prosecution intend to call the witness Schroeder as its witness in future proceedings in this trial?
MR. LA FOLLETTE: I don't know at this time, Your Honor, on the other hand, I can not spy that we might not intend to call the witness Schroeder. I may be unduly technical, but until the rule is changed it seems to me that that, under the rule, is not a. material issue. I have not released the witness Schroeder.
DR. SCHUBERT: May I say in reply, briefly, this: May it please the Court, concerning the case of the witness Zimmermann, which also to begin with led to a dispute between Mr. LaFollette and me, that case I did not mention before that dispute was settled because of the new ruling that has been submitted to the Court.
I do not share Mr. LaFollette's view that Article 23, in its present version, is clear, and evidently Mr. Ferencz and Mr. Wartena were also of that opinion. They have interpreted the new ruling. The interpretation is before the Tribunal, and they, too, do not consider the new ruling to be an amendment or curtailment of Article 23 but they consider it an interpretation of Rule 23.
If Mr. LaFollette were right in his interpretation to the effect that the word "witnesses" or "prospective witnesses" for the defense in the Nurnberg jail refers to all witnesses who are there, the Figure 2 of the new interpretation rule should not have been incorporated at all, because that, too, deals with witnesses in the Nurnberg jail, and in that case Mr. Ferencz and Mr. Wartena evidently agree that such witnesses may be interrogated without a representative of the prosecution being present.
If Mr. LaFollette, points out the provision in Article 23 that the defense, when the Prosecution interrogates a defense witness, may be present, as well as the other way around: The Prosecution may be present when the defense interrogates a witness, I have a point out that that, however, is not a reciprocal arrangement because in effect the Prosecution is able to prepare its case at a moment when the defense has not got going yet and, consequently, the Prosecution is able to interrogate all its witnesses without a defense counsel having the slightest opportunity to attend such interrogations.
I am concerned here with a case which, in my view, has not yet been settled, that is to say, the case of a witness of the Prosecution who is, at the same time, a defense witness.
THE PRESIDENT: It is, of course, obvious that what ever persuasive effect may be given to an Administrative interpretation, the Tribunals - and I speak of them all - which have adopted a rule are not concluded by the interpretation of some administrative official as to what that rule is. The Tribunal will take this controversy under consideration and will announce its decision at a later time.
OSWALD ROTHAUG - Resumed DIRECT EXAMINATION - (Continued)
DR. KOESSL: (Counsel for the Defendant Rothaug): May I continue with the examination of the defendant as a witness on his own behalf?
BY DR. KOESSL:
Q Witness, yesterday you said that about thirty cases came in per day. When you mentioned that figure were you talking of a definite period?
A That figure referred to the time when the most cases came in. In effect, the development was in fact the way I have already indicated the number of cases rose - reached a certain climax and then, on account of the effects of the war, the figure dropped considerably until finally it came down to zero.
Q Concerning the number of cases of the undermining of military morale in 1944, can you give us any exact information?
A I can only give a very approximate figure. Judging roughly from the whole situation I took over from Barnickel's department a great deal of arrears, and since the number of cases that came in rose constantly and we were overburdened with work, and because of all that it was quite natural that arrears should have accumulated with Barnickel. From 1944 onward, every month more and more cases continued to come in. That was due not so much to the fact that in the Reich more such cases were actually discovered, but to the shortage of personnel with the police which took effect more and more.
However, the senior public prosecutors had been instructed to submit all cases which, in some way or other, might be cases of undermining of military morale, and that took effect only gradually.
In addition, on account of the fact that the official agencies were badly staffed, there was an endeavor, which was understandable, in that way, to get rid of as many cases as possible, and that was how the little brook which originally had been harmless swelled and rose until it became a flood. That, roughly speaking, was the general development.
Q Yesterday you mentioned that about two or three cases were dealt with every day at your section. Did that mean that an indictment was filed in every case?
A No, by no means. Those two or three cases represented roughly, ten percent of the total number of cases. I read through the documents and a certain percentage of cases could immediately be stopped for reasons of fact or legal reasons. Another number of cases, for legal reasons, had to be transferred to other departments. For example, because high treason was in the dominant. Other cases were not concerned with the undermining of military morale but, after they had been properly examined on a legal basis, they were found to be offenses against the Malicious Acts Law. From the legal point of view of the undermining of military morale, they were rejected and transferred to the Special Courts as offenses against the Malicious Acts Law. The remaining cases were passed down to the General Public Prosecutors of the District Courts of Appeal.
The cases which remained in our department did not mean that in every case an indictment was filed. To start with, they were passed on to various experts who examined them thoroughly. They were examined by these experts from the point of view as to the offenders' attitude. It was also examined as to whether they could be transferred to the Senior Public Prosecutors or whether they could be transferred to the General Public Prosecutors with the District Courts of Appeal. If the expert decided that one of these methods could not be adopted, then he had to examine as to whether an indictment was to be filed or whether, before doing so, further investigations were needed.
If he thought the moment to file an indictment had come, he drafted an indictment before the Peoples Court. Otherwise he ordered that further investigations be made. If he choose the latter method, I was the person who had to sign the first order "by authority" of the higher authority. According to the results of further investigations the case was then dropped, an indictment was filed, or the case was transferred. That was the procedure.
Q What papers did you sign; which did you chief sign?
A On principle my chief signed all papers which were to be submitted to the Reich Ministry of Justice, the indictments which were sent to the Peoples Court, the opinions which caused the case to be transferred to the Senior Public Prosecutors, as well as general basic instructions as to what cases were to be sent on to the General Public Prosecutors.
I had to sign the first orders, which ordered that further investigations be made, and I also had to sign the orders for transfer to the General Public Prosecutors. That is to say, I did not sign orders transferring the case to the Senior Public Prosecutors; I signed by order of my chief, im auftrag. Further orders in connection with the execution of the sentence, I also had to sign and again by order of my chief.
Q. What civil servants dealt with the steps which had to be taken in connection with the execution of punishment?
A. Those measures which, as a rule, were a result of the fact that judgment has been passed, were, generally speaking, of a purely formal nature, and were dealt with on the basis of printed forms. To a farreaching extent they were dealt with by the Rechtspfleger. They were officials of the Administration of Justice who were neither judges nor public prosecutors.
Q. An example, for such methods concerning the execution of punishment can by obtained from Exhibit 435. Were Rechtspfleger subordinate to you?
A. No; the Rechtspfleger worked under the chiefs of the offices and they were subordinate immediately to the chief. A Reich prosecutor only acted as a superior official to others when he acted as deputy for the chief.
Q. Did you ever deputize for the chief?
A. No, I was the youngest Reich Prosecutor in office. The permanent deputy of the Chief Reich Prosecutor was Reich Prosecutor Parisius.
THE PRESIDENT: You told us about that yesterday.
BY DR. KOESSL:
Q. When a case was dropped did you have special difficulties with your chief, Lautz? Did he make it difficult for you to prevail with your opinion?
A. In view of the great many cases which came to my department and in particular on account of the nature of these cases, there were a great many cases which we did drop immediately.
There was not one single case when Chief Reich Public Prosecutor Lautz made any difficulties. All he asked was that one should give him some convincing reasons so that we would be able to prevail with our opinions as far as the higher authorities were concerned. In that field he was very generous and he was not afraid of the higher authorities.
Q. Did reports have to be made to him on cases where an indictment had been filed and where a death sentence might be passed?
A. Yes. He himself decided those cases, but the purpose of the decision was that an application was only allowed to be made at the session under the condition that the facts of the case changed considerably according to the files, and not on the basis of the facts that had come out of the trial.
Q. Did you ever attend such reports?
A. In view of the fact that I, myself, was over burdened with work, but because I had participated in the work and because there had been reports from assistants, I do know the general policy which was adhered to.
Q. What points of view were decisive for the question as to whether the death sentence was to be asked for at the trial?
A. There were quite a number of decree and decisions of a general nature on that subject, and there were decisions or rules which, in concrete, individual cases, had been issued by the Reich Ministry of Justice.
Furthermore, there was the jurisdiction of the Peoples Court which naturally amounted to directives for us. We were bound by directives and we were not able to ignore the jurisdiction of the People's Court, yet there was a general tendency on no account to exceed the line of policy which in itself was rigid.
Concerning certain sentences passed by Freisler's senate, which has been mentioned h re repeatedly, we certainly did not come up to that standard.
In particular, in. cases of the undermining of military morale, one has to bear in mind , above all, that the law as such made the death sentence mandatory for the ordinary case, that is to say, that the legal situation here was not as favorable from the defendant's point of view as it is, for example, in laws where the death sentence was tied up with the fact that a particularly serious offense had been committed.
In particular, the ministerial decisions which have been mentioned here several times, signed by Ministerial Councillor Franke, were aiming at that. According to their point of view, an exception could be made from the rule when overwhelming mitigating reasons existed. Here, too, concerning the reports made to Lautz, there was a tendency, in doubtful cases to choose the more lenient direction.
Q. You have mentioned that reports had to be made in connection with the death sentences. Were there any other cases before the Peoples Court?
A. Naturally not only cases were indicted before the Peoples Court where it had to be assumed that a death sentence would be passed or where it was intended to ask for a death sentence. There was only a small percentage of cases where, from the very beginning, it was intended to ask for the death sentence, they frequently were found during the trial to be based on facts which were less aggravating and for that reason one refrained from passing the death sentence.
It is also important here - a point which has not been mentioned up to now - that the transfer to the District Courts of Appeal was not dealt with according to the principle that only such cases were transferred to the District Courts of Appeal where one did not think a death sentence should be passed.
Rather, the way the selection was made as to what cases were to go to the Peoples' Court and what cases were to be passed on to the general public prosecutors was on the basis as to whether a case, without consideration for the sentence which might be passed, was of a certain amount of importance to the Reich, as a whole, or not. In other words, the decision of the question whether a case was to remain in Berlin or was to be transferred, in itself did not involve by any means a decision laying down that the cases which remained in Berlin were likely to be punished with the death sentence, whereas the cases transferred were not likely to be punished with the death sentence. The provision which formed the basis of the transfer matters in no way forced us to deal with cases on that basis. In other words, for example, such cases were left in Berlin where we were interested in getting a decision from the central authority. On the other hand, it was obvious, of course, that the bulk of the insignificant cases were transferred to the district courts of appeal and that, on the other hand, cases which had caused a great deal of sensation and which, on account of the seriousness of the offense, alone had achieved importance beyond the purely local, all remained in Berlin.
Q. You mentioned that, in cases where one had thought of passing the death sentence during the trial reasons against it could come out. I'm asking you, therefore, was the prosecutor at the session bound to ask for the death sentence if, to begin with, one had considered the death sentence necessary?
A. By no means. Rot a single public prosecutor was committed in that way. The meaning of the directives which were issued was always, and could not have been anything but, that the prosecutor was only allowed to ask for the death sentence if, at the trial, no facts emerged which, to a considerable extent, spoke in favor of the defendant.
Q. What steps did the prosecutor have to take when he found, art the trial, that the facts of the case had changed considerably in favor of the defendant?
A. On his own initiative he could refrain from asking for the death sentence and the main reason for that was in the situation as it existed, because, in the final analysis, he was the only person who gathered all the true impressions of the trial. However, in that case he had to assume full responsibility for it.
Q. What ruling applied in doubtful cases?
A. If he had doubts and if he didn't know what to do, he had to ask for directives from his chief.
Q. Did it happen that the Senate either exceeded the punishment for which the prosecutor had asked, or passed a more lenient sentence than the one for which the prosecutor had asked?
A. Both cases did happen, for the court was not obligated by the law to act according to the sentence which we had demanded.
Q. Was it the custom at the People's Court for the judges and the prosecutor to get in touch with each other concerning the sentence?
A. That was not the custom at the Peoples' Court.
Q. If the death sentence was passed, was then the clemency plea made to the Ministry of Justice, the clemency plea which the Oberreichsanwalt had to sign, and what did it say in such a clemency plea?
A. During time, those clemency pleas were submitted in a very abbreviated version. The report on the clemency question contained mainly the following points: "I enclose judgment passed by the Second Penal Senate of the Peoples' Court, dated 3rd of April 1944, of Anton Huber, for undermining military morale. The death sentence is in accordance with the demand made by the prosecutor", or, "my prosecutor has asked for eight years in a penitentiary." Those were the only points mentioned in the report on the clemency question. In other words, no opinion was given on the clemency question.