Q. Did you have the impression at that time that this was a crime punishable by death?
A. When I fixed the date for the main trial, one does not look at that details, but one just roughly examines whether what is what and fixes the date -
THE PRESIDENT: Answer the question. Did you think at that time it was the case for death? Did you think at that time that this was a case for death? answer yes or no.
A. No.
THE PRESIDENT: That is sufficient.
BY: DR. KOESSL:
Q. Can you prove that on the basis of the files? Look at page 53, please.
A. From page 53 one can see that in connection with the fixing of the date which I did on the 18 June '42, that on the second of July '42, I did not appoint a defense counsel for the defendant.
THE PRESIDENT: I understand.
Q. When did you arrive at the opinion that possibly paragraph 4 of the public enemy decree had to be applied?
A. On the 30th of June 1242. That can be seen from the order which I made on the same day. I had studied the files most carefully and came to the conclusion which is put under figure one, and which has been submitted as a document.
Q. Have you found that passage? Why did you conclude that possibly paragraph 4 of the public enemy decree would have to be applied whereas the General Public Prosecutor at Munich looked at the case as a malicious act case and therefore had transferred it to Nurnberg?
A. The difference in our opinions was based on the following. The General Public prosecutor in Munich, of the facts which were submitted to the Chief Reich Prosecutor, and were then passed on to him, had discounted about nine-tenths and what remained was just of that one remark, in the opinion of the General Public Prosecutor on Munich, one could only prosecute it or the basis of the delicious Act Law.
Q. The case as it was submitted to you by the Indictment, was that of the same extent as the complex of facts which had been transferred to you by the General Public Prosecutor in Munich to Nurnberg?
A. That was the decisive thing. That one went back nor to the original evaluation of facts in the entire extent which all offices so far had considered the ratters of high treason, and that all these elements were made the basis of the indictment which was filed with me, and that in contrast to the former opinion of the case, it was just specified as a malicious acts case. And upon study and examination of the entire material, I arrived at the conclusion that the facts by far exceeded the requirements for paragraph 2 of the Malicious Acts law. As far as the character of the individual was concerned, the circumstances attending the facts and the offense and the quite apparent purpose, I concluded that the offense in my opinion particularly in consideration of and comparison with other cases which had been dealt with on the basis of the Malicious Acts.
Q. Did the other judges who were sitting with you on that case share your opinion about the legal evaluation of the entire case?
THE PRESIDENT: Just answer yes or no. Ja oder nein.
A. No, there gas no difference of opinion.
Q. Then you should have said yes, according to the question I put to you.
THE PRESIDENT: We understand.
Q. The witnesses Doebig, Ferber, and Gross went on to describe that Doebig had come to the judge's chamber during the deliberation in order to prevent you from applying the public enemy decree on this case.
A. That matter itself can only be understood if one knows the previous history.
Q. Will you please tell us when for the first time the thought appeared of applying a different legal provision than that applied in the opinion of the general public prosecutor in Munich?
A. A different legal specification than that of the general public prosecutor in Munich never became apparent because the general public prosecutor in Munich, as I said before, only referred to about one tenth of the facts -
THE PRESIDENT: You told us that as you said before. Don't repeat it.
A. Whereas a difference only occurred when negotitations with the Ministry started and they dealt briefly with the following: After I had put down my opinion in the files, and had appointed a defense counsel, and thereby, informed every one concerned about the evaluation different from the one in the indictment, Engert, as representative of the general public prosecutor, got in touch with me. We discussed the matter, particularly the point of view and the fact that all details of the case were now taken into consideration and that might lead to a more severe evaluation. Engert definitely shared my opinion and considered it advisable however to inform the Reich Ministry of Justice about it, that is about the fact that this change in the evaluation had come about. He also discussed the matter in the Reich Ministry of Justice, but informed me that the Ministry approved from the legal point of view my changed evaluation, but thought that a severe prison term or penitentiary term might be sufficient. That was what Engert told me, but not in the sense that he approved of this opinion that he was in agreement with the opinion of the Ministry.
There was a telephone call, a telephone conversation, and I said that in a case of that kind we could only take notice of the opinion of the Ministry, particularly because they had not been in possession of tho files at tho Ministry. Ho stated then that he would obtain contact again with the Ministry. Whether he actually got another call through, I don't know. Ac tried the case on the basis of my evaluation of its legal foundations, and from the transcript which is before the Tribunal, one can see that I immediately instructed the defendant about tho possibility of a change in tho legal evaluation in tho sense of paragraph 4 of the public enemy decree. The trial took place. In fact all the evidence which formed the basis of the indictment proved to be correct in tho opinion of the court. Only one question had arisen and that was justified, tho question whether or not tho offense might be characterized as one of undermining military strength.
Q. Will you please state what tho transcript says about the time, that as the moment when the defendant was instructed about that point of view?
A. According to the transcript the information about the fact that possibly his offense could also be judged on tho basis of paragraph 5, Section 1, Figure 1, of the special war time decree, was given to the defendant before the pleas, and in the final plea tho prosecutor took that point of view into consideration in his demand for punishment.
Q. But tho witnesses reported that Doebig had introduced that thought of paragraph 5, that is the undermining of military strength, and that he did that during the deliberations.
A. That is quite impossible because that point of view could not have been taken into consideration in the judgment if it had not been the subject of the trial, but from the examination of the transcript one can see beyond a doubt that that point of view had already been discussed in the trial before the pleas. I also know with absolute certainty that Doebig's appearing was not during the deliberations on the verdict, but during a recess before the instructions of the defendant concerning the change of the legal point of view and in reference to paragraph 5, Section 1, of the special war time decree took place. Therefore the superior did not take part in the deliberations for the judgment. This was the way it actually occurred. During the recess while we were in the judge's chamber, Doebig appeared, who had attended the session as a listener, and we were just about to discuss the point of view of the applicability of the paragraph concerning undermining of military strength among ourselves. He pointed out that there was a recent decision concerning the concept of offenses committed in public. He was certainly not intent on preventing us from arriving at any decision or to influence us in any way about the sentence. He had the desire to put his person and knowledge at our disposal in order to help us in our findings of legal foundation for our decision. The fact itself excited me very much. First, I restrained myself; then, that was no longer possible and I told him the following: Here in this room I have the responsibility. By that I wanted to make it known to him that I could no longer tolerate that he was trying to exert influence in the Question which not he, but we had to decide.
He left the room then. Subsequently I discussed that whole question with my associates, and that whole scene of excitement on my part referred solely to that visit by Doebig. That was the only subject. As for the question of fact of evidence and of law which we had to decide, there was hardly any noticeable debate or discussion.
Q. What were the rather serious points of view which led to the application of paragraph 4 and made it mandatory to apply paragraph 4 and paragraph 5?
THE PRESIDENT: We have before us at this moment the additional statements, the making of which was charged against this defendant, and to which this witness has referred, which ho says ho made it a more serious case. I am sure they arc all tin the exhibit which has already been received in evidence.
A. Our point of view in that entire matter t;as the following: We were of the opinion that that case especially if it was put into a comparison with a normal even a serious case, of a malicious attack, in consideration of the personality, the character of Grosser, that it did not stand any comparison, but we admitted that of course there could be people, there could be offices where a different opinion prevailed. Then they of course had to act according to their conviction. A discussion among us did not occur concerning that question and I did not hear that any such discussion took place at the level of the general public prosecutor or the senior public prosecutor.
Q. Were you informed about the opinion the general public prosecutor voiced in the clemency question?
A. I did not receive any information about that, but I never hoard that he made any statements against it.
Q. Now, we want to leave that case.
THE PRESIDENT: The Tribunal mill recess for fifteen minutes in just a moment, gentlemen. One matter: Reference was made this morning to the absence of the defendant Paul Barnickel. We have received a report to the effect that he is indisposed, and that the prison physician has excused him for a period which has not been specified. Is any Defense Counsel authorized to speak for the defendant Barnickel at the moment? He will be excused from attendance by the Tribunal today only if his counsel appears and makes the suitable request which should have been made this morning. Otherwise, he will not be excused and will be brought to court.
We will expect, in the interest of the defendant himself, that his counsel, or some one deputized to do so, will appear and mill make representations to us and request that he may be excused -- in which event we will excuse him.
We will now recess.
(A recess was taken.)
THE MARSHAL: Persons in the courtroom, will please find their seats.
The Tribunal is again in session.
THE PRESIDENT: In order that the record may be complete we will read the order in the case Engert, which order was made verbally in open court and which should now appear in the transcript of proceedings.
Without reading the title, the order which the Court has prepared and which has been executed by all members of the Court, is as follows:
Now at this time the above entitled matter coming on for hearing upon the motion of Prosecution by Mr. Charles M. LaFollette, Deputy Chief of Counsel, for an order declaring mistrial as to the defendant Karl Engert, and counsel for the defendant Engert having joined in said motion, and the Tribunal having heard the testimony of two expert medical witnesses concerning the present physical condition of the defendant Engert, and it appearing to the Tribunal that during the entire period of the trial the defendant Engert has been present in court not to exceed three days and that his absence has been due to illness which has become chronic, and that during the entire period of the trial, with the exception of the three days, the defendant Engert has been a patient in the hospital, and it further appearing to the Tribunal that the defendant Engert is still unable and will continue to be unable to attend the trial or to fairly present his defense, and it further appearing that article IV, paragraph d of Ordnance 7 provides that every defendant shall be entitled to be present at his trial except that the defendant may be proceeded against during temporary absences if in the opinion of the Tribunal the defendant's interest will not thereby be impaired, and the Tribunal being of the opinion that the absence of the defendant Engert has exceeded the limits of temporary absence and that his interests would be impaired if the case were to be continued against him. Now, THEREFORE, it is ordered and adjudged that a mistrial be and it is declared hereby in the case of the defendant Engert, and that the case of the defendant Engert be severed from the case of the other defendants herein, and that if and when the defendant Engert becomes able to be tried that his trial be then commenced upon the Indictment herein.
Signed:
James B. Brandt Mallory B. Blair Justin W. Harding, Judges Mr. Secretary.
You may proceed.
BY DR. KOESSL:
Q May I proceed please? We now shall discuss the Wendel case which was submitted as Exhibit 245. It is mentioned in Exhibit 245.
THE PRESIDENT: The name of the defendant again, please.
DR. KOESSL: Wendel. I shall spell it, W-e-n-d-e-l. Submitted as Exhibit 245 and mentioned in Exhibit 154. That is the Markl affidavit. In Exhibit 156, the Engert affidavit, and in Exhibit 222, the Ostermaier affidavit, and Exhibit 232, Kern.
Witness, the witness Ferber asserted that the Wendel case had become an example in order to encourage the associate judges to pronounce severe judgments. In what respect had the Wendel case become an example?
A The Wendel case as far as I remember was the first case which was tried on the basis of nullity plea of the Chief Reich Prosecutor which had been submitted against the defendant, the first one to be tried by the Reich Supreme Court. The Reich Supreme Court wrote an extensive opinion and in this judgment stated its position on a number of basic questions for the first time. That is, as far as our sphere is concerned. Thus, the judgment was of basic importance. The penalty and sentence pronounced at that time, which was a penitentiary sentence was not approved by the Reich Supreme Court. Rather, the Reich Supreme Court was of the opinion that everything spoke in favor of the death sentence.
All concepts concerning the public enemy law, especially Article 4, were developed in this opinion, and thus it was quite natural that this sentence in the subsequent time played a decisive role in our judgments.
Q The basic tendency of the testimony regarding the Wendel case is as follows: That in the second trial the death sentence was passed even though no essential new incriminating elements became apparent. What is your comment on this charge?
A The second sentence that we passed after the Reich Supreme Court had nullified the first one has also been submitted to the Tribunal as a document and it shows, without doubt, on the basis of what considerations and facts we made further determinations. The decisive factor, however, is the following, which refutes the tendency of the charge preferred against us. Nullity plea was at that time, as the sentence by the Reich Supreme Court demonstrates, not submitted by the Reich Public Prosecutor because, in his opinion, further cases should be considered under the point of view of a black out case. But, the nullity plea was submitted as follows because in the 5 black out cases which we had assumed to be black out cases already no especially serious offenses existed in our opinion, so that there was no reason for us to examine the facts beyond those five cases. That this did happen nevertheless can be seen by the opinion of the Reich Supreme Court, merely through the fact that the Reich Supreme Court in reviewing the judgment noticed an erroneous description as far as the time element was concerned and from this they concluded that possibly in the case of the first judgment we were not thinking that for exploiting the black out, for example, it was sufficient for the offender to exploit the black out on the way to commit the offense or on the way from the offense. In consideration of this, the Reich Supreme Court then annulled the entire sentence and obviously used that opportunity to lay down the basic considerations which I have already mentioned. But this opinion, too, shows clearly and without doubt especially in the discussions concerning the conception of an especially serious case and its requirements that already five previous cases which we had assumed to be black out cases would have been sufficient.
Naturally, when we had the new trial we were obligated to start the whole proceedings again and discuss all the problems again and in so doing a number of events became apparent which in our opinion on the basis of a new trial were added as further black out crimes. Thus it was not so that in the second trial we used any tricks to create the basis for final death sentence. We did not have any such intentions in any case.
Q. Another case is the Kleinlein-Schaller case. This was introduced as Exhibit 206 and 207. The Kleinlein-Schaller case was referred to in the Mark 1 Exhibit 154, in Exhibit 221-Gross, and in Exhibit 223 - Escher. First of all, witness, the lawyer Escher made the charge that you had addressed a letter to the Prosecution and had called to the attention of the Prosecution another legal qualification of the offense committed by Kleinlein-Schaller. This charge you have answered already in the general statements you made. Do you want to make a specific answer regarding this charge?
A. First of all this is wrong. This letter does not refer to the Kleinlein case.
Q. Of Schaller?
A. The letter referred to Schaller. I have to make no further statements regarding that letter. I have commented on that exhaustively.
Q. The second charge concerns reduced responsibility and evaluation of reduced responsibility during trial. The expert in the Kleinlein case assumed that Kleinlein had full responsibility under criminal law. Nevertheless he considered that the defendant, and I quote: That he recommended in regard to the defendant a more lenient charge. What significance does this recommendation have?
A. In this expert opinion, as well as in all other expert opinions which are of importance, the expert had to give an opinion as to whether medical prerequisites existed under article 51 Section 1 or 2. He assumed the full responsibility under criminal law. Then he solved his problem. Naturally it would happen that experts wrote down some kind of phrase like this one but this did not serve any purpose from our point of view because the law in regard to such a condition knew no basic mitigating circumstances. As the opinion shows we discussed that point of view. I can refer you to that.
Q. The question of Article 51, Section 2, is also touched by the Schegerer, spelled S-c-h-e-g-e-r-e-r, case. The Schegerer case was submitted as Exhibit 164 and it is mentioned also in the Kurt Hoffmann affidavit, Exhibit 234.
Witness, please state first what offenses Schegerer was being charged with? This is stated on page 68.
A. First Schegerer was being charged, as is shown in the passage there, with 4 so-called black-out thefts. This can be seen from a report by the Senior Public Prosecutor in Regensburg who referred this case to the Prosecutor at the Special Court in Nurnberg.
In fact these black out offenses, in addition to the four black out offenses - - -
Q. Were there further offenses such as these offenses?
A. There were in addition 36 recurring thefts. These are in the files.
Q. Who was the first one to get the idea and expressed it that this man might be a dangerous habitual criminal?
A. The Senior Public Prosecutor in Regensburg transferred the files to Nurnberg from this point of view.
Q. Did this Senior Public Prosecutor have anything to do with the special court?
A. He had nothing to do with us. Quite independent decisions were made.
Q. Were all the offenses prosecuted by the Senior Prosecutor?
A. The innumerable offenses which existed out of these only 15 were singled out and the rest were not prosecuted because of the final opinion, the final results they would not have been of importance. That is to say, the Prosecutor acted on the assumption that these 15 offenses which were in the Indictment would be sufficient in order to sentence him as a dangerous habitual criminal under the law 4 September 1941.
Q. In regard to these 15 cases - are the 4 black-out offenses also included among them?
A. Yes, they are.
Q. When and who was thinking of the death penalty for the first time?
A. That is apparent first in the order of 18 December 1941 which the Prosecutor Hoffmann, Kurt Hoffmann, made on the 18 December 1941.
Q. What did he say?
A. In this order he asks for photographs and this happened only if he considered the possibility of the death sentence.
Q. Now, the charge was made in this case that mitigating circumstances existed and that they were disregarded. What ideas do you find expressed in the opinion regarding application of Article 51, section 2? Please describe briefly the basic ideas in regard to application of these mitigating circumstances and of this regulation.
THE PRESIDENT: That opinion is in evidence, is it not?
DR. KOESSL: Yes, it is your Honor.
THE PRESIDENT: And it sets forth the reasons which were adopted by the Tribunal for holding that the circumstances claimed to be mitigating were not sufficient for that purpose. The defendant may state if his opinion is still as it was when it was expressed in the written opinion.
A. What we thought at that time on that case is written down in the written opinion. What I am thinking today on this entire problem I can't say because in that direction I never thought about it any more.
THE PRESIDENT: Well you are satisfied with the reasons which are given in the opinion?
A. I can only say that the opinion which we wrote at that time was in accordance with our opinion at that time.
THE PRESIDENT: That is sufficient.
BY DR. KOESSL:
Q. Was this opinion the general opinion regarding the application of Article 51, Section 2?
A. That was the opinion that prevailed at that time generally, but not only at that time but also the opinion that existed before 1933. In regard to the application of this regulation, that was a prevailing opinion. It can be called a prevailing opinion before 1933.
Q. Did the courts in applying Article 51 or not applying Article 51, Section 2 -- were they ever dominated by influences that were not of a legal nature? Such as being influenced by a theory of extermination--
A. There was no question of that and nobody thought of it. This question was decided by us exclusively with a view to criminal law. Points of view outside of criminal law were not considered by us at all.
Q. Please also state what the attitude of the prosecution was regarding the clemency question.
A. It was against the granting of mercy.
Q. In his attitude regarding the clemency question, did the prosecutor refer to Article 51, Section 2?
A. Yes, he did refer to it, and at the same time to justify his attitude he stated that one had to consider that he refused to consider 51 too.
Q. Now let us go over to the Horn case. The Horn case was mentioned by the witness Markl in Exhibit 154 and in the English transcript on page 3675 to 3683. Furthermore, the witness Gross mentions it in Exhibit 221.
Witness, please state briefly what criminal offense was the basis of the proceedings in this case.
A. It was a repeated theft from an army post office. That happened quite frequently during the war.
Q. According to what regulations was field post theft and embezzlement of field posts judged?
A. According to Article IV of the Public Enemy Law. In addition, there were usually civil service regulations.
Q. Please state in what legal relationship the convicted person Horn was to the German Reichspost. You see that on page 2. He was an active civil servant. He was in the salary group 8. Did that have any particular significance from the point of view of criminal law?
A. That made his offense, from the very beginning, more serious, for embezzlements and thefts in office in Germany already during normal times were sentenced with extraordinarily severe penalties. If now such offenses were described as offenses connected with war time conditions, then for the person concerned this had very unpleasant consequences from the very beginning.
Q. By referring to the files, please state by what means the Reich postal authorities proceeded against these offenses and what steps it took in order to point out the consequences of such criminal offenses.
A. There was a very extensive and thorough warning issued to all persons employed by the post office, especially to the so-called post office experts who usually had been employed on the basis of war time conditions. Everywhere on the walls of the offices the sentences were announced on large posters so that everybody could see all the time what enormous consequences a small theft could bring with it already. It was just like an electrical charge. The warning said: whoever touches this could be sentenced to death.
Q. In what was the special seriousness of these field post thefts -- in what did it lie?
A. Of course, this was not due to the value of the individual field post package, but in the vital connection between the homeland and the front, and of course we were interested in maintaining this without any disturbance. Naturally, the despicability of the offense as such had consequences too.
Q. I show you now the file of the Schlamminger case. (Witness is offered the file.) The Schlamminger case is mentioned in Exhibit 222, the Ostermaier affidavit. In this case, witness, you are being charged with having played up the case from a political point of view, and that during the trial you had called a witness, and that is the clergyman Kempfling - you had attacked him - that you had independently summoned this clergyman even though the prosecution had not called him as a witness. Witness, how did it happen that this clergyman Kempfling was involved in the Schlamminger case at all, and how did it happen that he was summoned as a witness?
A. The trial against Schlamminger was conducted at that time on the basis of a crime against Article 1 of the Law for the Preservation of Peace of 13 October 1933. He had made two attempts by shooting a police official in a bedroom -- and I have mentioned this already before -and of the local group leader. As far as the second offense was concerned, it was necessary that it should be found out whether a political motive guided Schlamminger. That was the issue: did he do the shooting in the apartment or in the bedroom of this local group leader of the Party because, for example, he had any personal conflict with him. If this was the case, the law was not applicable. On the other hand, in order to apply the law as far as the shooting in the bedroom of the constable was concerned, it was not found that there was a political motive required. For that reason, the question that was of extraordinary interest was how it came about at all that Schlamminger committed these offenses. The question was difficult because Schlamminger, in spite of overwhelming evidence, denied that he had committed the offense at all. Therefore, it was impossible to ask him why he acted in that way.
The rumor appeared that somehow through the local clergyman he might have been instigated to commit such a senseless offense. Of course, that point of view was eliminated if one looked at the facts soberly from the very beginning. But then the assumption became stronger that it was possible that Schlamminger, who was a very primitive man, out of a political and religious misinterpretation of the entire situation, was trying to get some kind of satisfaction through the offense.
In connection with this, it was asserted that repeatedly in sermons the clergyman had described the situation and events in such a way that people of the nature of Schlamminger could have been affected by it. For that reason, the clergyman was summoned as a witness -- in order to be reproached somehow in this direction and to that effect.
That I, however, caused the summoning of this witness, I could not determine off-hand by the files, but it is absolutely possible that after a thorough study of the files I considered that it was necessary to call that witness and told the prosecutor to summon that witness. In any case, they were purely technical reasons, and it was admissible and justified under the law. The examination of the witness during the trial then showed, by his own description of the conditions, that he pointed these matters out in his sermons, and he also realized that it was possible that in the case of people of the mental and spiritual structure of Schlamminger such results could easily come about. He realized the mistake he had made.
In any case, it is untrue that unduly or more than necessary I had exposed this man during the session. I did not hear either that after this event he was called to account in any way because of this affair.
Q. In the examination of the witness Kollmer, it was said that the affair of the clergyman was supposed to have been a lecture on politics.
A. I believe I have already answered that question.
Q. You are being charged with a certain bias in this case. Did you in any way treat this witness in a one-sided manner?
A. I could be prejudiced only in the case itself. I examined the witness in the same way as I examined every other witness -- with the aim to find the truth. If I reached the conclusion that he acted wrong and if I told him my opinion, that was a natural thing to do. But I was not biased in regard to this witness.
Q. Were you prejudiced in regard to the entire case?
A. I tried this case in the same way as I tried thousands of other cases too, and this charge of bias which others gathered from the proceedings--that I had expressed my opinion too strongly when I examined defendants and witnesses--recurs all the time. In the final analysis, the reason for it is the manner in which I examined the defendant or witness. In that direction, I followed a principle and a method which was not practiced by others but which was in no way contrary to law.
The law does not say anywhere that the presiding judge, while examining a witness or a defendant during the trial, is not allowed to express his opinion, even in regard to individual questions that are discussed--be they of a factual or legal nature. In regard to every defendant in each case and probably also in regard to the defendant Schlamminger, I studied the evidence material that was submitted, all incriminating and mitigating circumstances, and I submitted them to him and discussed them with him. In so doing,- this was a matter of principle with me, - I did not leave any doubt in the defendant's mind as to the purpose of the question, but I even used to explain to the people why I am asking them, so that the defendant would know the extent of the importance of his answer. I was not interested in ambushing this man by surprising him and putting him into a difficult situation. In discussing my opinion about the significance of such discussion, I did not restrain myself in discussing its importance for the final result.
This method in which the rights of the defendant are safeguarded one-hundred per cent, since he always knew in what situation he found himself, could not be objected to from a legal point of view, because according to the German method of legal procedure, the presiding judge, when examining the defendants and the witnesses, is absolutely free and not bound by any rules of examination.
THE PRESIDENT: I think you have sufficiently answered that question.
BY DR. KOESSL: