Q. Did you have to give your views on the question of the extraordinary appeal?
A. No, for the Oberreichsanwalt did, according to the external form, make use of that legal remedy, but it was not he who decided about it. He could only make such an appeal at the instruction of the leadership of the state.
Q. Please don't use too many nouns in your replies. That is making it rather difficult for the interpreter.
Did you have anything to do with the work that was done on extraordinary appeals?
A. I have already mentioned that a large number, or perhaps the majority of cases, were passed on to the general public prosecutors for them to deal with them, and finally, to indict these cases before the Senate of the district courts of appeal. When the district courts of appeal decided on these cases, we were sent a copy of the judgment and of the opinion, so that we had an opportunity to supervise and examine the practice of the district courts of appeal. But, as the decision about the extraordinary appeal did not lie with us, we only dealt formally with that part of the work. That is to say, we never suggested to the Reich Ministry of Justice that an extraordinary appeal should be made, nor was there any reason for us to do so, because the Reich Ministry of Justice, too, was informed about every judgment passed by the district courts of appeal because it received a copy, and because we knew that the Ministry itself supervised the jurisdiction of the district courts of appeal, and the Ministry made the decision as to whether an extraordinary appeal was to be made against a judgment.
Q. Do you know of a case where the Reich Ministry of Justice made an extraordinary appeal in favor of the defendant?
A. I never heard of a case of that kind, but by that I would not like to say that such a case never occurred.
Q. You heard of a Will Case. It is mentioned in the Weimann Affidavit Exhibit 495.
That man was sentenced to death. Next the extraordinary appeal was made. Do you know that case?
A. My department dealt with the case. It's the Will Case, and these briefly are the facts of the case: Will had been an unimportant little attorney in Hamburg. From 1933 he had known how to use the National Socialist Revolution for his own ends and thus he got to the very profitable top at one of the largest brewery concerns and, as he could prove by showing letters which were sent abroad and which were sent cut inside Germany, until a certain time of the war he had been an enthusiastic adherent of the Nazi Party. That attitude of his changed when the war situation became critical, when there was a threat that National Socialism might become dangerous. From that moment onwards, he changed his political views to the opposite. In that change, however, he was rather careless. That was how it happened that, at a meeting of the Board of Directors, he said in public that the war had been lost and all that mattered now was to save whatever could be saved. He suggested that no more material was to be used up and that all the money was to be invested in goods. He canvassed for his plan, making all sorts of promises to his audience, and, in lengthy statements, he tried to refute all arguments which the audience brought up against him. At the first session, he was sentenced to death.
THE PRESIDENT: The time has arrived for our fifteen minutes' recess.
(A recess was taken).
THE MARSHAL: The Tribunal is again in session.
DR. KOESSL: I ask to be permitted to continued.
BY DR. KOESSL:
Q Was the extraordinary appeal in the Case will made in favor of the defendant?
A Since there was a death sentence pronounced it had formally to be made in favor of the defendant. The real reason, however, was a different one. Freisler had the habit of preparing himself the reasons for his sentence. In doing so he often caused a great deal of embarrassment for us and for the administration of Justice. This also was a case of embarrassment of this kind. The reasons were so confused, so complicated that an evaluation of what the facts actually were in this case could not be made; and thereupon the instruction which we received had been based that is to make an extraordinary objection against this sentence. It had been pointed out that large parts of the charged raised ware not at all dealt with in the reasons given for the sentence, and that what was contained in the reasons was actually full of contradiction. We were instructed to express that criticism of the reasons in our extraordinary objection, and that was done. As for the One hundred thousand Marks which we have mentioned have frequently which were left to the dependents of the person convicted of the first sentence, there was no mention of it in the instructions. Therefore, that is to say, for a trivial matter of that kind the extraordinary objection would not have been made. The second trial proved the same facts which apparently had been produced in the first trial. Beyond that I remember that witnesses who had been called to speak in favor of the defendant to a certain extent turned out to be against the defendant. Thus, the second trial also resulted in a death sentence.
Q Did you finish?
A The extraordinary objection, therefore, had its reason apparently in the fact that the Leadership of the State should be provided definite foundations, for its decision especially in the clemency question.
Q What were the principles on which Ministerialrat Franke based himself in connection with the extraordinary objection?
A The formal dealing with extraordinary objections was such that in most cases we immediately received a binding instruction to make an extraordinary objection. In rare cases we first received the files, and at the same time leaving to our discretion we wanted to examine the question, and whether we wanted to express our opinion to the Ministry. The instructions which we received to file extraordinary objections had reached such an extent in my department that the department frequently for weeks had nothing else to do than to handle these matters of extraordinary objections as we had been instructed by Franke. The consequence was that we, of course, were opposed to all extraordinary objections from the point of view that the nature of this offense was such that it wasn't worthwhile to display any particular initiative in this direction.
Q Now, in the case of Will, in the second trial, wore you the prosecutor?
A Yes.
Q Did Freisler in other cases also cause such embarrassment as in the case of Will?
A I remember one more case which I will briefly describe, and which also is another way is somewhat characteristic. In that case a physician from the Bavarian Forest had been charged with having made defeatist statements and was sentenced to death. The main witness in that trial had not been appeared for the trial. The prosecution in the session therefore tried hard to obtain a discontinuance of the trial because the statements which were most important in this case only be made by this physician in the presence of that witness.
Freisler achieved that the trial went on; and also when during the session the application was made for discontinuance, he disapproved that, but sentenced the defendant because the defendant in his defense had made certain confessions concerning the alleged statements; but that did not go as far as to provide per se a basis for the death sentence. That manner of dealing with this matter became a subject of a report and of discussions at the Reich Ministry of Justice by the Chief Reich Prosecutor. It was pointed out that one could not proceed in this manner. Thereupon I received the assignment to make a trip to the Bavarian Forest to find out where that witness was and to question her thoroughly in order to find out what actually had happened. I carried out this investigation. The witness, however, in a very credible way, confirmed the charges so that as far as the substantial accuracy of the results was concerned there could not be any doubt. Later the clemency appeal was decided against the defendant.
Q Did you inform yourself currently about the jurisdictional practice of this special penal senates? Were there only death sentences pronounced?
A Not at all, that is quite out of the question . Even acquittals occurred, and it happened that the sentence which originally had been for a term in a penitentiary was commuted and reduced considerably. In these proceedings one had to expect 11 sorts of outcome. They were particularly more critical as far as evidence was concerned because a considerable amount of time had passed since the previous sentence and the new trial, and frequently witnesses changed their minds. Therefore, also in these cases, it frequently occurred that surprises arose. In addition, the Senates and that included Freisler, too, were very much opposed against the large number of extraordinary objections and were not really inclined to encourage that tendency from emanating higher levels.
Q Did the Chief Reich Prosecutor have any supervision over the General Public Prosecutors?
A The General Public Prosecutors were subordinated to the Reich Ministry of Justice. The Chief Reich Prosecutor had only a limited right of issuing instructions to them on the basis of paragraph 146, of the judicature Act, that is to say, on the basis of the authorization which is stipulated there and which I have already mentioned today.
Q. Did the Chief Reich Prosecutor with the People's Court have any supervision over the Senior Public Prosecutors?
A. He did not have such a right of supervision.
Q. However, did he have the right of supervision when he transferred cases to the Senior Public Prosecutors because they were not cases of undermining the military morale but of malicious intent?
A. That matter is entirely different from the general transferring of cases to the General Public Prosecutors. Whenever we transferred cases to the General Public Prosecutors, we were competent for these cases; and the General Public Prosecutor acted so to say on the basis of our assignment we gave him. Consequently, we also had a certain right of supervision and direction; however, when cases were transferred to the Senior Public Prosecutor, those were matters which really did not fall under our competency, but for which the Senior Public Prosecutor himself was competent. Therefore, as for the further handling of these cases, we had no right of instruction.
Q. Was the General Public Prosecutor with the District Court of Appeals bound in anyway?
A. The General Public Prosecutor with the District Court of Appeals was only bound to instructions on the basis of the transfer assignment which he had received; therefore, we could only direct that he had to file an indictment in a case of undermining of military morale before the senate of the District Court of Appeals. That was the extent to which we could justify any binding directive and that was the reason for the transfer of these cases.
Q. Since the case Grasser raises that Question, Exhibit 139, I want to ask you what did the General Public Prosecutor at the District Court of Appeals have to do if he is not inclined to consider a case as being one of undermining of Military morale?
A. Of course, the General Public Prosecutor with the District Court of Appeals had the right to examine the case itself for its legal merits and was not only our executive instrument.
If, on the basis of such an examination, he had come to the result that it was not a case of undermining of Military morale, but for instance a case of malicious intent, then, according to the rules and regulations which were generally in force, he was obliged to explain to us his point of view. We would have examined that point of view and according to the result of that examination we would have said that we either approved of his point of view or that we disapproved. Each party gave reasons for his cause, but if the original instructions remained in force, then, of course, the general public prosecutor had to act as he had been instructed by us.
Q. Was it possible for the general public prosecutor to transfer something to the senior public prosecutor?
A. If we agreed with the opinion of the general public prosecutor that it was not a case of high treason or undermining of military morale, then he could transfer it to the senior public prosecutor; but in this connection one has to observe that here also another element comes into play. The general public prosecutor could examine the case from the point of view, or rather he had to examine it from that point of view, as far as facts were concerned, whether these facts could actually be proved, and frequently it occurred that when he was confronted with an extended statement which was alleged to be a case of undermining of military morale, he found that about three-fourths or nine-tenths of that statement could not be proved, and that he transferred the balance to the senior public prosecutor, as a case of malicious intent. In this case, however, formerly he would have been obliged to ask our opinion also, but for reasons of expediency that was not done.
Q. Was the senior public prosecutor bound by the opinion of the general public prosecutor?
A. In the case where the charges were dropped or part of the charges were dropped and in the case of purely legal questions, the Senior Public Prosecutor was bound by the opinion of the general public prosecutor, if the general public prosecutor was the superior authority of that particular senior public prosecutor to whom in fact the case had been transferred, that is to say, that the senior public prosecutor could not very well disregard the transfer order of his superior; but he also is under obligation to examine the case personally and independently, and if his opinion deviates from that of his superior, he has to report that dissenting opinion to his superior.
Of course, he can deviate from the opinion expressed by his superiors, but that is an internal matter. It is essentially different when the senior public prosecutor does not belong to the district of that particular general public prosecutor who makes the disposition. That is for instance when a, case has come to the general public prosecutor in Munich, a case of suspected high treason or undermining of military morale, to be tried for these reasons and on the basis of these charges, and now the general public prosecutor in Munich with or without the approval of the Chief Reich Prosecutor arrives at the legal opinion that it was only a malicious act because, for instance, large parts of the charges had to be dropped for some reason; and if now the general prosecutor transfers the case to the senior public prosecutor in Nurnberg, then the senior public prosecutor at Nurnberg is in no way bound to accept the opinion of the general public prosecutor at Munich because the general public prosecutor at Munich happens to be in no relation of a superior to the senior public prosecutor in Nurnberg. If, therefore, the senior public prosecutor in Nurnberg finds that the legal evaluation on the part of the general public prosecutor at Munich could not be shared by him, then he has to adopt the point of view which according to his own legal opinion and conviction is the right one, because the legal handling of these cases is based on that.
Q That situation prevailed in the case Grasser, the situation which was just described. The transfers to the general public prosecutors are said to have had a notation concerning the case. Will you please explain to us what that notation was about?
A I have already pointed out that on the basis of these transfer orders there existed a right for the chief Reich public prosecutor to issue instructions to the Reich Public Prosecutor. This right was in fact connected with the obligation of the general public prosecutor that he had to file an indictment based upon the same legal considerations which prevailed when the case was transferred. Now, in connection with the facts of undermining of military morale and all the questions concerning the extent of punishment, and also in connection with tbs great divergencies of evaluation, of conditions and circumstances, particularly circumstances brought about by the war, all through the Reich from the North Sea to the Serbian Border, it was quite natural that the practices and sentences showed great differences in different areas. It was quite possible that cases whore the facts were quite the same were punished, the one at Graz with a prison sentence, at Munich with a penitentiary term, and in east Prussia with a more serious penalty. These circumstances brought it about that this large number of extraordinary objections which I mentioned frequently poured in with the intention of bringing the practices of the various courts to the same level. In addition to that, we also wore interested, and that in the interest of legal security which would provide equality in interpreting the law. Therefore, and because we knew the general decisions as well as the special decisions made within the Reich Ministry of Justice, we knew the practice and the decisions of the People's Court, and also had an insight into the practices of the district courts of appeals.
We were the office which could exert some influence in order to bring about a coordination, and that was done from our side by way of short notations. These notations in brief words should render an evaluation which was possible for facts and that on the basis of principle which were known to us, and which were in accordance with the facts and merits of the cases. The purpose of these notations was, therefore, at first to develop throughout the Reich a certain theoretical starting point for the evaluation and for the extent of punishment. That was the purpose of those notations which were exclusively designed for the attention of tie general public prosecutor.
Q Was the general public prosecutor bound by these notations?
A The general public prosecutor was not bound in any way. That could be seen from the character of the matters, because, as I have said, the intention was only to create a theoretical starting point for the setting of a standard. Therefore, in his decision ho was quite free and ha had to remain free because the final demand for punishment could only be made on the basis of the findings of the main trial.
Q In Exhibit 126, Chief Reich Public Prosecutor Lautz says that you had used a little too much steering, too much direction, which he limited subsequently. He stated, as a witness, that, and I quote: "In indictments and in dispositions about transfer of cases going far beyond an evaluation of facts there was an evaluation of the individual personality of the offenders, such as the judge would give later in his reasons or in his opinion.
In some cases there was also a political coloring to these statements. As for the indictment, "he continued, "I was worried that anybody who would read that indictment, that is to say the general public prosecutor at the session, might have been influenced from the outset, and for that reason in a discussion which, however, was a very civil one, I asked Rothaug to abide by my wishes and he did so." Would you first refer to these instructions for transfer?
A That description, or these statements, deal with the following: I have already explained what the general conditions were which had necessitated such directives, and it is easy to understand that that was not a private hobby of mine, but that the nature of these directions, the purpose their goal, had been discussed with the chief in detail. It was clear that it wasn't I who put down every individual direction on hundreds of cases of files, but by these directions no real steering could be brought about such as has been explained here because, as I have already explained, by our notations the general public prosecutor could not possibly be bound to follow them; and, in addition to that, in this train of thoughts as results from the very nature of the facts, a general directive had been sent from the Chief Reich prosecutor signed by himself where the general public prosecutors had been told specifically that they wore bound only in one specific respect, and that is in the legal evaluation of a case of undermining of the military morale, but that they were completely free in their decision concerning the question of discontinuance and in particular concerning our possible support cf conclusion, favorable for the defendant, on the basis of the files and the facts presented.
In this occurance the chief Reich Public Prosecutor has made a mistake as far as his recollection is concerned. The problem which he mentioned did nor arise in connection with the direction or steering or too much of it, but had a completely harmless background, that is to say, that some assistants of mine who wrote these notations started to write -- so to speak -entire novels. They went far beyond the brief form provided for these notations, and that created a great deal cf extra work in the various offices, which, in turn, that the result, in consideration of the fact that we were short of personnel, that we had to think it over whether these notations shouldn't be reduced to a much smaller extent or even be eliminated. In the end we decided, to reduce their extent, and then finally to drop that practice altogether. That explains the connection.
Q Another objection which Mr. Lautz, according to his recollection, has made against your work was that you wanted to bring a strong political under-tone into the indictment, which he says he also stopped. When he was here as a witness he made the statements which I have mentioned before, in connection with these transfer orders.
A That also was not an important affair at that time, and in conversations with mo there was no political note introduced, in the sense that in the opinion of the Chief Reich Public Prosecutor I would have had a much too severe opinion from the political point of view, because time and conditions would not permit that at that time. But I remember quite well what the problem was in that connection.
I was of the opinion that the law required, that the defendant before the main trial should have made available to him all material which was designed to prove his guilt. That was founded on the German law. The German law provides that a defendant before he enters the courtroom he given by the prosecution all the information of the results of the investigations. First, the charges against him; second, what evidence was to be used against him; and, third, specifically and definitely the manner in which that evidence will be used against him during the main trial. That is, he has to be told, therefore, you are charged with having committed that and that; you are defending yourself by these and these means; we shall submit the following evidence; and we shall submit this evidence in the following manner during the main trial against you. The defendant has to know that before he enters the courtroom at all because we are of the opinion that in the course of the main trial he should not be subjected to any ambush of any kind. That is the legal situation as it exists in Germany, and the created the problem. I was of the opinion that if one intends to use a defendant's political past or certain political conditions to prove his guilt, or to evaluate his act in the main trail, that this has to be told him before the trial even starts and in the greatest detail in the indictment; and that it is not admissible that such matters are only brought up in the final plea where the defendant has hardly any possibility to defend himself against these charges, or to bring that up only late in the opinion where he hasn't any possibility of defending himself against it. That was the problem at that time, and the conversation about that really did not have a political, undertone, but it was purely a professional conversation during which, however, the chief Reich Public Prosecutor was of the opinion, that one should be as brief as possible, and in that connection he also put to me an indictment submitted by one of my deputies, and I had to admit in fact that as far as the terms in that indictment were concerned, it was somewhat exaggerated; and it was the purpose, of that conference that such matters should be avoided in the future, which I promised to him; and nothing further happened in this case.
Q. The defendant Peterson stated, in Exhibit 176, I quote the sentence which unfortunately neither in the German exhibit or in the German transcript is complete, but one can well understand the way it is in the documents -- I quote; "The sentences of the People's Court can only be understood if one takes into consideration that it was not so much the question of usually adequate penalties for committed offenses, but of the extermination of an opposition which might impair the German aims." The sentence apparently intends to express that the sentences by the People's Court can only be understood if they are seen in the light that it was not the question to impose penalties according to the usual custom, but with the purpose of annihilating opposition. I ask you, therefore, did the People's Court, or any one of the senates, stick to such a line of thought?
A. That is quite impossible. Every sentence, as severe as it may be, was under no circumstances, under no point of view, designed to support the statements made by this witness. On principle, the sentences by all senates of the People's Court were based on the same elementary considerations, and I can say, therefore, that such a basic reason or a final purpose as is indicated by these statements did not really exist. Freisler's senate, in fact, pronounced more death sentences, as far as figures are concerned, but one has to take into consideration that Freisler handed about one half of all the cases that came in, as far as I remember. At any rate, no sentence was pronounced at the People's Court unless the punishment itself was based on the evaluation of the guilt of the offender.
As for the statement made by the defendant Peterson I can only believe that the man is rather an elderly gentleman who apparently under the influence of imprisonment and of certain things which have to do with his age, arrived at an absolutely wrong conclusion. His statements are certainly not based on actual facts.
Q. She objection was raised quite generally that in political cases, in the proceedings concerning political criminal cases, stool pigeons, informers, and denouncers played a great part. What do you mean stool pigeon?
A. A stool pigeon is a person who is used by the police, whose task is to gain the confidence of a person, to try and obtain inrformation in order to put the material thus obtained at the disposal of the police. As for the point of view of decency and character, there is no doubt that these people are highly questionable; they are mostly inferior subjects, against whom the greatest measure of care has to be taken. The police of all nations make use of each methods, but only if the most serious interests of the public welfare are at stake. I never handled any procedure of that kind. Had that been the case, I would have had to know about it.
Q. The witness Ferber, on page 1715 of the English transcript stated that at Amberg a man of that type had been used. Do you happen to know anything about that?
A. That is quite impossible. We never had any ease there which in the least was designed to make use of any stool pigeon.
Q. What do you really mean by a denouncer?
A. A denouncer is a person who for selfish reasons makes denouncements and statements to the police for the sole purpose to cause damage to somebody else, and works with the aid of lies and exaggerations in order to come to his aid.
Whoever makes a denouncement in order to carry out a true duty or seemingly true duty toward the community is an informer, not a denouncer.
Q. Were any measures taken in order to counteract the consequences of such denouncers' activities?
A. It was quite clear, and that principle is applicable to all authorities all over the world, that a stool pigeon and a denouncer, much as one might be able to use their services, have to be handled with great care, because the danger always exists in dealing with these people that they falsify the facts; and that was always the way we handled it.
As soon as any suspicions arose in that direction, we used the utmost care.
Q: Can you give us any practical examples, quite briefly?
Al For instance -- and this is perhaps between the things as in most of these cases -- I remember the case of a Gestapo official who played a certain important role here. That man had a way of questioning witnesses in a manner that one could not put one's finger on any facts, but everything was covered with opinions and exaggerations to to the extreme. We tolerated these methods two or three times, but the result usually was that when a witness came to the main trial and had to make a statement under oath, he retraced his steps so that in fact all that remained was a really harmless, or at least unimportant, matter. Thereupon I got in touch with the Chief of the Gestapo office and explained the matter to him, and the man was immediately transferred.
Here one could see that an official in the service had a tendency toward exaggeration, which we considered extraordinarily disturbing. It was not really dangerous because one could not got very far with such methods when they were thoroughly investigated.
Of course, the personal attitude of the witness was frequently of great importance. I should like to mention the case of von Braun, which has already been mentioned in this trial.
The case of von Praun was a local case, and therefore it attracted my attention to a great extent, so that I can remember very well what happened.
We received the files. They came from the Nurnberg Prosecution, not from the Court itself, and they were not sent to the People's Court but to the Chief Reich Prosecution.
When we received the files there was attached the decision by the Court, which was to the effect that the case should be discontinued in order to afford an opportunity to the Prosecution to obtain our opinion -- that is, the opinion of the Chief Reich Prosecutor -- concerning the question of the undermining of military morale. The way I remember it, at that time the Reich Ministry of Justice, in its decision concerning the prosecution of the case, had mentioned the point, that is, the question as to whether it should be considered undermining of military morale. When the files were submitted to me I examined them immediately and also found the name of that young witness who was mentioned here by the attorney Meyer, who was heard here as a witness. I had certain misgivings concerning the total evaluation of the material, as to whether one could believe that young woman. She was young, and in addition to that she was somewhat embittered; and, therefore, biased; and in general there was certain hostile attitude with the local police at Ansbach against the defendant. Therefore, I immediately went to see the Chief Reich Prosecutor, reported the case to him, and also gave him my opinion. I suggested that I should immediately go to Ansbach in order to gain a personal impression of the people and circumstances connected with the case. The Chief Reich Prosecutor accepted my suggestion immediately and directed me to carry out that mission as quickly as possible. I sent a telegram in order to have the man returned to Ansbach from the disciplinary institution and to call the woman witness. However, before the last letters were sent out, I received a telegram to the effect that Herr von Praun had committed suicide in the prison and thus this action could not be carried out.
Q: Can you tell us about successful cases in that field? But please, very briefly.
A: Another case was in the area of Hassfurt. There a teacher and a priest were arrested on the basis of statements made by an evacuee. The statements made by that evacuee were characteristic because she ended, with a poem of about twenty verses. The poem itself showed, and so did the contents of her statement, that she was a seriously hysterical person. However, far reaching steps had already been taken on the basis of the statements she had made; the teacher had already been transferred to Meseritz in order to be brought to trial before the People's Court, and the Catholic priest had been detained in Wuerzburg.
In this case a friend of mine, who had to do with the case from the Party point of view, wrote to me. He pointed out to me that one should be very careful in that case and that I should go to that area myself to investigate the matter. He considered all these measures as somewhat too hasty in that affair. In this case also I received the assignment to investigate these matters immediately. I did so, and found, after I had heard a large number of witnesses, that it was a definite matter of invention on the part of that woman. The outcome was that we dropped the proceedings. That was in October, and we immediately ordered these people released. However, to my greatest surprise, in April I received a letter from the wife of the teacher in which she wrote that I had promised her in October that who could be very hopeful, but now, in the course of March and April, her husband had not yet returned home.