A. That is a question which I could not answer in general terms. That depends on the individual concerned.
Q. Then may I ask you, and I refer to a document submitted by the prosecution, NG-555 -- it is an affidavit by the attorney Weimann. He states in his affidavit: "I have always had the impression that the lay judges did not have a chance against Freisler." That is to say, the learned judges. What is your point of view in that respect?
MR. La FOLLETTE: If Your Honor please, I object to the cross-examination Basically, it has been my understanding that it is not proper in crossexamination to require a witness to contrast his opinion with that of some other witness for the prosecution, or to be bound by some other opinion of some other witness. The prosecution may be bound, but the witness is not bound. For that reason, I don't believe the cross-examination is proper nor relevant nor sets up a fair standard.
DR. ASCHENAUER: I should like to point out that also in the crossexamination, I have the right to put documents which were submitted by the prosecution to a witness of the prosecution. The witness, in this question, has made a statement so that I may ask whether tho witness, in this manner, would not want to limit his opinion, that is, the opinion that he has stated in the direct examination.
TEE PRESIDENT: The Tribunal is ready to rule on this proposition. It our ruling that it is not competent to ask one witness his opinion of the probative value of some other witness' testimony or on some exhibit offered in the case by the prosecution. If this witness can bo said to differ from what exhibit number it is, that is a natter of argument; and if necessary, when it comes to the defense, the defense counsel can develop that, even beyond the matter of argument, by evidence. But, it's unheard of, it seems to me, to get one witness against another during the examination. It can be done during the argument. We, therefore, rule against the question.
BY DR. ASCHENAUER:
Q. Then I come to my next question. You said that all high officials the Reich Ministry of Justice and all judges or high judges had to be aware of conditions in concentration camps.
On what do you base this opinion?
A. I do not believe that anyone who lived in Berlin during that time and had an opportunity to communicate with people who had been in concentration camps, to hear descriptions -- I, myself, as far as personal experience of friends are concerned, have passed on frequently what I heard from them. And that is how it was in Berlin, which is well known. I consider it absolutely impossible that anybody who was in a central office could not have heard about the nature of conditions in concentration camps. From abroad, people returned to Berlin who had an opportunity to read publications; for instance, the book 'Moorsoldaten', and it appeared in 1935 already abroad, and it was wide** publicized. From such and other sources, the knowledge about conditions in concentration camps was derived, which of course at the same time, was dangerous to be distributed in public.
Q. Since, as you say, you got in contact with people who had been in concentration camps, it should be known to you what a cloud of secrecy was held over the camps, forced by the oath of the personnel, and by the written obligation of the inmates not to speak after they had been released.
A. Yes, many former inmates, while they told no a out conditions told me about that also.
Q. Is it also known to you that clouds of secrecy made it difficult for certain people in the SS to conduct examinations and investigations of conditions in concentration camps on the occasion of punishment meted out to a number of concentration camp commanders at Buchenwald, Lublin, Warsaw, Herzogenbusch, and Dachau?
A. About such difficulties I have not heard. Nobody told me about them because I had no contact with the people who had attempted or allegedly attempted to investigate these matters officially.
Q. But it can be assumed that you also know that the public and other offices were prevented from their hearing about concentration camps?
A. These circumstances had the result that all those people who could think clearly would have doubts about conditions which could not be published or publicized.
Q. But just that condition, wasn't that point designed to prevent the public and to prevent the majority of the people from obtaining a clear picture?
A. That was intended; that was the intention. The picture did not become a clear one but as I have just stated, what kind of a. picture could be obtained by any clear thinking person.
DR. ASCHENAUER: I have no further questions.
BY DR. HAENSEL (Counsel for defendant Joel):
Q. Witness, legislation of the Nazi regime between 1923 and 1945 prepared by the Ministry of Justice was the subject of your examination. Those laws which you have mentioned in your short description and the regulations and decrees which the prosecution has listed are these. Was that a complete description of the legislative activities of that period?
A. No, I don't think so.
Q. These laws were published in the Reich Legal Gazette. Do you remember that every year one to two volumes of this size appeared?
A. Yes.
Q. This volume contains sixteen hundred pages; others have twelve hundred; others have twenty-five hundred pages; and on an average we could agree would be about twelve hundred pages, at least.
Then over a period of twelve years that would amount to 24,000 pages. I believe that the material submitted by the prosecution so far amounts to 240 pages. That is 1/1000th of the material. Now, we have to realize it is only 1/1000th of the entire legislative activity of that period. May I ask you, witness, you will remember a number of other laws, and whether in your opinion that all other laws consistently Nazi tendencies were expressed or whether it wasn't so that there was some good and resonableness in these laws.
A. But, of course, that could not be said that the entire tremendous legislative machinery which has been put into action by National Socialism, as it was described here, to what tremendous extent the Reich Legal Gazette has increased. Smilingly, I must refer to a book by Schegelberger who says we have to depart from the mechanical legislation. Here he refers to the press as a symbol, and this press has been put into motion to a tremendous extent. That of course many laws that remained in existence were promulgated by that legislative machiner, the preparation or which in part had started before the National Socialism; that is without a doubt. It can be seen from the fact that, for instance, to give one example, that many regulations, that many provisions of the marital law of National Socialism still remain in existence now which were not contained in the civil code before; but in the same way as the marital law, also a large number, and I would not care to say all or the majority, but I would only care to say a large number of useful laws have always received a certain addition of National Socialist ideology, and carried it with them; and this has been removed recently in the marital law. I admit that many laws did not belong in this category.
Q. I hope, witness, you do not deal with me as Severing in the first trial. I had the honor of questioning him about the questions of National Socialism and he answered finally that anything that was new, that was not good; that anything that was good was not new.
A. I did not use that quotation; I did not express it, although it was on the tip of my tongue. It would not have been new.
Q Well, we run into repetition at times, but I believe that Severi** was not quite right. May I remind you of a few small points, however, which I consider very important for our complex of questions and I consider it important to come to an agreement. I have a volume here which was published by Schlegelberger, the Law of Modern Times. It is very condensed, and it a list of newly published laws, and there you will find a tremendous am*** of essential things; the testator law, and the simplification and clarification of that law; may I remind you laws concerning shares, a very good job; may I remind you of the law for protection of youth. I could add a v*** long list to that, but I should like to return to our subject and to ask you -
THE PRESIDENT: The Tribunal is of the opinion that a recital of Dr. Schlegelberger's principles published in a book, if it is material to Dr. Schlogelberger's defense, should be presented when you come to his defense and not read to this Court extracts or even refer to a work of his during the cross-examination of this witness.
BY DR. HAENSEL:
Q I want to ask you now, witness, if a Ministerialrat counselor was employed in the Ministry of Justice; did he necessarily have to be in contact with that legislative task, or could you imagine that a large number the several hundred counselors who were employed there did not have anything to do with legislative tasks?
A His Ministerial counselors, it may be true, but it does not appear to the state under secretary, or under secretary in charge.
Q Witness, you have heard of the resistance movement, or the resistance group; or, possibly you were connected with it?
A Yes, I have heard of various groups.
A I now have before me the last number of the last copy of the American Rundschau, the American Review, with an article by Franklin L. F**** a first lieutenant in the service; in this article he refers to tho strongest resistance movement, that is in connection with the 20th of July, and in extraordinarily refined and interestly way he examines what has lead more than anything else to this and to other resistance movements; and that we the offices and officials and the reasons that for one they enjoyed a cert** measure of prestige and independence, and further more, in contrast to the union workers that they in their office by their official functions they ** the support and the possibility to carry out their conspiracy.
I ask you now can you imagine that a ministerial counselor just for that reason may have remained in his office in order to have a similar battle for resistance, the purpose of resistance.
A That I would not only imagine, I know it from one man who was a in the Ministry.
Q Does the name Danani mean anything to you?
A No.
Q He was one of the victims of the 20th of July.
A No.
Q You do not know the defendant Joel personally?
A Not personally.
Q But you have heard of him.
A Yes.
Q Do you know whether in this connection?
A No, that I don't know, but there have been officials of that kind I am sure of it.
Q Therefore, you could not off-hand condemn all of them and say everybody who was in that building, that institution was a criminal; you wouldn't want to say that?
A No, I could not do that for each individual, of course.
Q May I mention another small item, for a different reason; for example, for jurisdiction of special courts in the sense of extraordinary courts, you have mentioned the law which established the SS jurisdiction the 17th of October, 1939; special jurisdiction, special courts in crime matters for members of the SS and police units. Will you permit me to show you the law; may I ask you to examine it together with me; it says there paragraph one, a special jurisdiction in criminal matters is established and then there is a list of six points. 725 Beginning Members of the Reich Leadership SS as the main provisions.
Then figure 3, Members of the SS Special Disposal Units, Special Task Forces; 4, Members of the Deathhead Units and-so-forth. Then it says in paragraph 2, subject: To the Special jurisdiction are persons listed in paragraph 1 in all criminal matters as covered by the jurisdiction of the armed forces or otherwise, and in paragraph 3, these special jurisdictions are concern regulations over military penal code are applicable. Then, does this create the impression, Witness, that this law was nothing else but the subordination of the new SS which was similar to the Armed forces in particular, the special task forces under the military jurisdiction according ta laws governing the Wehrmacht for its troops, which it is in every army of the world for respective units?
A. Under the jurisdiction, that is true.
Q. Then, with respect to the nullification plea which has been discussed widely here, may I point out the following: The nullification plea was an institution similar to a legal remedy. Is it not possible that it was sort of a safety value when during that period of dispute of competence and with interference of the Fuehrer into the administration of justice, which would solve, to protect against such interference, to make it possible that by su**** nullification plea, a verdict which was disagreeable for the Nazi public could be revised?
A. That might be true in one or more case; it might have been used for that purpose. I want to add, as I have stated already the nullification plea was also argumentative in the course of its development.
BY DR. KOESSL (For the defendant Rothang):
Q. Witness, is it correct that the prosecution already before 1933, and also in the field of serious criminal offenses, had the choice in many case as to what court it wanted to plead or accuse. You have pointed out yesterday that in Germany each judge was free too -- I beg your pardon, the day before yesterday on the occasion of your direct examination -- that a choice was given to the judge to differentiate his judgment from a decision made and put down by the Supreme Court of the Reich?
A. Yes.
Q. At any rate you wanted to point out that a judge could differentiate from the opinion of the Supreme Court of the Reich in the principles underlying the decision of tho Reich Supreme Court if it did not convince him. Was it permitted on the other hand for the judge to differentiate from the jurisdiction, the decision of the Supreme Court, if he was convinced that the opinion of the Supreme Court of the Reich was correct?
A. I do not believe that any reasonable judge would have conceived the idea of deviating in this case.
Q. Therefore, was it possible for the judge to be wrong if he applied the principles of the Supreme Court of the Reich of which he was convinced for his own decision?
A. Do I understand you to mean that if a judge applied or took as a bar for his decision, the principles of the Supreme Court of the Reich, of which he was convinced or of which he considered right. Maybe I could be wrong. Yes, well if the opinion in the case, the opinion of the Reich Supreme Court was wrong and he follows that opinion, of course, he could be wrong.
Q. Jurists are accused here for decision which they granted in accordance with the law and in accordance with the jurisdiction and decisions of the Reich Supreme Court.
MR. LAFOLLETTE: That is argumentative, if your Honor pleases. I do not think the witness has testified to any of those questions. It is a conclusion of the Counsel. It is not relevant nor does it apply to any matter that the Witness testified to upon direct examination. I do not think it ended up with a question. I thought it was a speech, I am not sure.
THE PRESIDENT: In any event, it would not seem that the opinion of this witness would be of any service. It is argumentative and the Counsel can arrange it, but to the Court and not to the witness.
Q. Witness, you produced in your direct examination a number of laws with described points in legal developments after 1933. Primarily you mentioned those laws which had a political character. May I say also that the enabling act belonged to that category. I mean the law of 24 March 1933.
A. The well known enabling act?
Q. Yes, the enabling act about which people are arguing now. May I ask you witness why you have not included that enabling law in your review of the development of law?
A. The reason, the enabling law is the very law by which the rump parliament, that is, the rump Reichstag, after Hitler had been nominated Reich Chancellor by the law by which the Republic was casterated. It was promulgated at a time, at a period, when there were certain parties who believed they could prevent National Socialism and these parties were still taking art in the government, and in this way contributed to the suicide of democracy in Germany. That became the fundamental element for the basis of dictatorship.
Q. When you mention dictatorship, you seem to say that many measures were wrong because they were not approved by the people.
A. Because they had come about to the exclusion of fairness of privilege granted to the people.
Q. Well, elections, plebesites, which approved the measures of the government including those we just mentioned.
A. Elections or votes took place frequently during the Third Reich. There were elections or votes in the same sense that the people were subpoena there.
MR. LAFOLLETTE: If your Honor pleases, I do not believe that the examination of this witness encompassed any question as to whether or not there was a party delegation de facto in the enactment of this enabling act or subsequent acts. It is not alleged in the Indictment. The attack is not primarily upon whether or not this particular legislation was adopted in one way or what action was taken pursuant to the escape clause of the Weimar Republic, what thereafter taken was de jure vales. The witness was testifying and purely on direct examination as to the changes made. I do not think I ever asked him as to whether or not there was a de jure validity for it. And, for that reason I think the cross examination is not relevant to the direct but it is not relevant to any examination or to any charge which the Prosecution has made up to this time, nor anything which was included, to my knowledge, in the direct examination of this witness.
For that reason, I do object to this question and to further of that kind because I do believe it is not in the issue.
DR. KOESSL: May it please the Tribunal, may I be permitted to say something to this point?
THE PRESIDENT: The Tribunal is of the opinion that this is not permissible cross examination and that is as far as we care to rule at this time The object is sustained.
Q. What was the importance, Witness, in your opinion, if you criticize the development of law in the National Socialist Reich. What was the importance of the principles, which still today, are valid throughout the world.
MR. LAFOLLETTE: I object, your Honor. I don't see that there is any question of sovereignty. It's beyond the range of the direct examination completely.
THE PRESIDENT: The objection will be sustained.
BY DR. KOESSE:
Q. Witness, you have frequently referred to the analogy when you wanted to consider analogy method in order to prove illegal features of the National Socialist state. At any rate, you wanted to describe it as something opposed to constitutional principles?
A. Yes, it served to smuggle the National Socialist measure of the so-called sound feelings of the people into the law.
Q. Would you like to give an example to the Tribunal in which you can show that analogy led to unjust developments?
A. I cannot give individual cases. I just pointed out the meaning of this provision which make it possible for the judgment---
THE PRESIDENT: One moment, witness, I think I am safe in saying that this matter has been gone ever at least five times. I think more than that. This is clearly such repetition. I think it's an interference with an expeditious trial.
BY DR. KOESSE:
Q. Witness, you also mentioned reformatia in peus. Did you believe that the introduction of reformatia in peus represents a violation of the principles of a just state?
A. I must affirm that because it makes it possible to punish a defendant and to use a legal remedy to increase his punishment - the measure of punishment. Perhaps when the authorities - that is, the prosecution - had any objection against a too mild punishment there was a possibility that they could raise that objection on their part and in this manner cases which also in the opinion of the prosecution it seemed fair to decide for greater punishment that could be demanded. It wasn't necessary that the defendant and he demanded a revision in his own interest could be threatened with an increased punishment.
Q. Is it fair to say that in a just state it is necessary to reach a just decision regardless whether it is in the interest of the person under indictment or not?
MR. LAFOLLETTE: I object to that, your Honor, for the reason that I do not consider it is directed to any of the direct examination. I asked the witness to compare - he testified fully his comparison and testified fully under cross examination as to what these comparisons were He wasn't asked on direct examination about the philosophy of whether or not you can get a correct result by using the principles of analogy. I asked him to explain what the principle of analogy was and he answered it. I don't believe this was covered in direct and I believe that, therefore, this cross examination does not test the credibility of the witness's opinion or serve to test his credibility as an expert on the subjects about which he testified on direct examination.
MR. KOESSE: May it please the Tribunal --
THE PRESIDENT: The Tribunal is of the opinion that whatever argument counsel wishes to make on that should be addressed to the Court and not to this witness. The objection will be sustained.
MR. KOESSE: Witness, you spoke about the influence and the interference of the Gestapo and SD Security Service in the field of justice. What were, in your opinion, the possibilities of the officials of the justice administration to defend themselves against these influence?
A. By reports to the minister and by whatever action - the action by the Ministry to protect them.
Thank you. I have no more questions.
THE PRESIDENT: We are so near the usual recess time that we had better take our recess before some other counsel proceeds with cross examination. May we be advised at this time which particular defense counsel desire to cross examine this witness?
DR. KIRCHHOLZ: Dr. Kirchholz for the defendant Barnickel.
MR. LAFOLLETTE: Do you want to know how many there were remaining?
THE PRESIDENT: Yes. That was one of the things and what particular defense counsel was text to cross examine and not hear them at this moment.
We will recess first.
MR. LAFOLLETTE: Do your Honors wish the counsel, all who want to cross examine, to rise?
THE PRESIDENT: I think that would he a good idea, that we know how many and which defense counsel desire to cross examine. It seems there are three. We recess at this time.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. SCHUBERT (Counsel for the defendant Oeschey): May it please the Tribunal, may I begin the cross-examination? My predecessor, who has just reported here, has told me that he does not care to cross-examine the witness.
BY DR. SCHUBERT:
Q Witness, during your direct examination you told us that persons and groups of persons were excepted from ordinary jurisdiction and handed over to special courts. Does that apply to special courts which were created on tho basis of the order of 31 March 1933? If you do not have that order there, I am ready to give it to you.
A Tho order regarding special courts? No; I said that for groups of crimes partly, and partly for groups of people, special courts were established.
Q And the special courts of March 1933 were instituted for what? For persons, or for people?
A For crimes.
Q And how about the special courts which, on the basis of the order **** February 1940, were expanded?
AAlso for penal fields; not for persons.
Q. Thahk you. Witness, was there a special jurisdiction for persons and groups of persons already before 1933? Perhaps you remember some examples in this respect.
A Not at the moment.
Q May I remind you, for example, of the labor courts.
A Oh, yes.
Q The former trade and business courts.
A That could be called for trade matters and business matters.
Q I believe that this example does not apply in this case. Witness during your direct examination you said that the special courts gradually became the rule, rather than the exception.
A Yes, I did.
Q Are you of the opinion, Witness, that this opinion applies already to the special courts which were created on the basis of the order of 31 March 1933?
A Not yet in 1933, but in the course of the development as I have described it here there was an always increasing growth of the special court.
Q Witness, can you tell me, did I understand you correctly that during your direct examination you said that it seems to you to be the essential difference between the trials in the special courts and the procedure in the ordinary tribunals -- the essential difference to you seems to be the fact that sentences passed by the special courts were not subject to legal recourse; that is, they could not be objected to. Is that applicable? Is that correct?
A I believe I said that in regard to the People's Court, which in the course of time developed a competency which went far beyond its competency.
Q What then do you consider to be the essential difference between the ordinary jurisdiction and the procedure in special courts?
A The essential difference, in my opinion, is the influence of the executive on the composition of the courts through the appointment -- I was rather say the appointments could exert an influence in the establishment special courts by appointing judges who were especially pleasing to the National Socialists.
Q Does this not apply in the same way for the composition of the penal chambers? Is there any difference at all?
A I believe in the selection for these courts, especially for the People's Court, a special -- I would like to say a National Socialist elite was chosen, because there the special interests of National Socialism and of the jurisdiction were at stake, while other judges who did not have the full confidence of the executive were left in the ordinary courts and they were given rather small posts and were given cases which were not so intering to the executives. There it was the possibility of selection, that is for the purpose of using the Nazi expression, the "Einsatz", the use of special judges.
Q Witness, I did not ask about the People's Court just now, because I am not interested in that in my particular defense. I asked about the special courts, and you answered me that you think there is an essential difference between the ordinary jurisdiction and the special jurisdiction and that you see this essential difference in the fact that there was as selection of judges on the basis of their reliability. Could you, according to your experience, by possible examples which you could cite, apply that to the special courts?
A I said already that for the special courts, especially National Socialistically reliable judges were chosen, while the others were occupied with matters which were not so interesting for the executives. That is, that were assigned to the penal chambers. It was absolutely a policy of appointment -- an appointment policy was made possible.
Q May I ask you whether any examples are known to you, whether any particular person informed you about it that only certain absolutely reliable person were appointed as judges of the special courts?
A That I was not only told by judges but also was confirmed by the appointments themselves -- could be seen from the appointments. I have not been called here by the Prosecution as a witness for individual cases; however, I can mention the case of Rothaug, which I heard about as soon as I came to Schweinfurt and then there took over the post of President of the District Court.
I was then told that he had already before 1933, through uninhibited behavior during proceedings, that he had become notorious due this and that it was without doubt that his appointment to the special court of Nuremberg was made on the basis of his special suitability for the purpose of the executive of the state and his ruthless execution of National Sociaist jurisdiction. I was told -- I asked a judge and an assessor, an as** judge, about this, and they told me that the defendant Rothaug in education lectures, not only for future lawyers, jurists, but also for judges, which held for both -- he like to use the expression in these lectures, "The be** must be destroyed." He meant the head, the human head, by this. He said that head must come down. This expression seems to be especially characteristic of him. Several people told me that it was characteristic of Rothaug. I come this individual case in answer to your question.
Q Witness, can you tell me whether in the trials in the special court the defendant was not granted legal privileges which were granted to him ordinary trials according to law?
A The question of the inviolability of sentences of the special court is now to be considered. That is the important question, especially in consideration of the fact that according to Paragraph 14 of the order of com tency of the special courts the Prosecution can apply to the special court also for other crimes and delicts than those which are obligatory to be brought before the special courts -- that the Prosecution could make the special court competent for these other crimes also, if the prosecution believed that the immediate sentencing by the special court, in view of the seriousness or the despicability of the action, because of the excitement caused in the public, or because of serious endangering of public order or security, that they considered it desirable and necessary. Therefore in practice any crime or delict could be taken away from ordinary jurisdiction and transferred into the special jurisdiction, drawn into it, and thereby made into a sentence from which there was no appeal. If one considers how skilfully during the Third Reich an excitement in the public could be stage one recognizes the entire extent of the jurisdiction of the special courts with the unfavorable corollary of the lack of appeal.
Q. Witness, from your answer, this may be concluded: According to law, defendant who came before the Special Court essentially had the some legal privileges at his disposal as the defendant in ordinary proceedings?
A. Yes. I can add also that the prejudice was not there and that Paragraph 23 asked for a special speeding-up of the trial. It made this provision.
Q. Do you know, witness, that in the course of the war, the legal men for an ordinary proceeding were restricted to a considerable extent?
A. Yes.
Q. And that even a person sentenced in an ordinary court was given the opportunity to appeal from a sentence only if the Tribunal allowed him to do so?
A. Yes. At the end, I think in 1943, that happened. That was a further step in the development against legal privileges which became part of the ordinary proceedings.
Q. It is the order of 13 August 1942?
A. Yes. That is correct.
Q. May I continue? Witness, May I continue? This morning, you affirmed that the so-called extraordinary objection can also be made in favor of the defendant. Could you also say the same in regard to the nullity please?
A. Yes.
Q. Witness, during your direct examination, you said that every judge of a local court could deviate from a sentence of the Reich Supreme Court. I believe that we are in agreement that is correct in theory. Please answer the following question: Could a judge who deviated from a definite judgment of the Reich Supreme Court be sure that sentence would be sustained? Would he not be sure that this sentence would be appealed by one of the parties participating, and that it would then be reversed?
A. He would only do it in a case where he thought that his judgment could lead to a change in the judgment. We are not concerned with a practice which is usual, leaving out of consideration certain obstinate judges who wanted to be right without question. I only mentioned this in order to illustrate that the use of precedents was not obsolute in German law.