If that opinion was correct, his death is a piece of good luck."
Then, in that entry I described the police methods taken after the assassination; I called them Bolshevist methods. I ended my remarks with the words that "in this war there will be only one victor, Stalin". I quote: "It is not essential whether his troops will conquer or will be conquered, but his spirit is victorious right now."
Q. That concludes what is to be said concerning the Gestapo. Now I should like to deal with several other questions, witness.
Several weeks before Heydrich's death, Hitler made his speech of 26 April 1342, which has been mentioned here frequently. May I ask you what impression that speech made on you?
A. I can say that I was deeply shocked by that speech. That speech is known here, and I do not need to tell you what it was about. That speech and the resolution by the Reichstag was considered by me not only a devastating blow for the Administration of Justice, but a devastating blow for the entire common weal, because that increased the dictatorship to an intolerable extent.
Q. Did you draw any consequences from your point of view in this respect?
A. Well, yes, I drew very serious consequences. As a civil servant, of course, I could not do anything because I did not hold any position that afforded any opportunity of influence towards the outside. However, that speech made it clear to me that things could not go any further in that direction and that something had to be done. I do not want to go into too much detail, but I arrived at the conclusion that it must be possible to remove at least those individuals from Hitler's surroundings who, time and again, were considered to be his evil spirits. As the exponents of that direction I considered, first of all, Bormann and Himmler, together with Heydrich. I was of the opinion that it must be possible to eliminate these men, and that it would then have to be possible to bring Hitler under a sort of tutelage, and by so doing to liquidate, by and by, the regime and the war.
That, at first, was merely an idea which would have had to be developed further, but I was of the opinion that first of all an attempt had to be made to propagate an idea of that kind.
In Germany at that time, of course, there was only one single power which would have been in a position to carry out these ideas, and that was the armed forces. Therefore, I made an attempt to have this idea supported by a person who belonged to the armed forces at that time, and who had been put in a favorable position of liaison just at that time, and to have it presented to the armed forces. Unfortunately, that attempt on my part was not successful. In the course of a lengthy conversation which took place in the beginning of May 1942, arguments were put to me which were based on the military situation at that time and against which I could say nothing.
I cite this occurrence, first of all, in order to show how extraordinarily I had been impressed by Hitler's speech at that time and how deeply I was imbued with the conviction that one had to take some action.
DR. TIPP: May it please the Tribunal, I shall offer later in the course of the trial Barnickel Document No. 20 from Document Book II at page 133. That is an affidavit by Freiherr von Besserer of 31 July 1947.
Q. One more question in connection with this, witness. Did you know at that time that a military conspiracy had been instigated?
A. I did not have the slightest idea of that, nor did I know that among the men who later prepared the events of 30 July there were also honorary judges of the People's Court.
Q. When you described your work in the field of cases concerning the undermining of military morale, you mentioned the person of Freisler. Will you please explain to the Tribunal what you attitude was toward Freisler?
A. I have already mentioned the fact that the indictments prepared in my department did not go to Freisler's Senate. Therefore, at that time I had practically no contact with him, but that was not the essen tial thing.
In order to answer your question, counsel, I should like to refer to an entry in my diary of 3 October 1942, which says, and I quote:
"When I went to Spahr afterwards -- that is one of my assistants -- I met Duval there, who was greatly disturbed by the new directive by Freisler. He was trying to get a terrific speed into the work. If a session lasted only half a day, he wants the sentence to be read the same evening, and so on. In addition to that, he continously writes letters to his subordinates, to district court director Duval, and then there is some trifle, which otherwise is dealt with either directly or doesn't have to be stated at all. I consider this pathological, and believe that one day that it will break out in the form of an apparent disease. But there are more neurotics than that one."
In this connection, I should like to say the following Into the practices and decisions of Freisler, I had little insight at the beginning. When in 1943 I had to deal with cases of undermining of military moral, there was such an amount of work that one had no chance to bother about anything unless one was immediately concerned with them. That changed somewhat when after the fall of Mussolini, another department was charged to deal with cases of defeatism, and Freisler received the indictments from that other department for decision. I already mentioned that. Of course, by the decisions of Freisler, certain dangers arose for my own activity. For one, he was in a position, on the basis of a change of the routine of the People's Court, to receive individual indictments from my department also. Besides that, it is clear that his work in the course of time had to influence the entire field of cases dealing with the undermining of military morale. Since I had come to know several judgments by Freisler, which did not seem tenable to me, in the summer of 1943, I came to see the verdict which appeared to me to be grossly exaggerated.
It was directed against the simple foreman, and put quite unusual requirements to the political insight of that man.
I thought it over for a while, trying to find out what could be done. Finally, I did what in view of my position was the only thing to do. Again I have to recall that I was just a subordinate official. Therefore, when the opportunity arose, I voiced my serious objections against that sentence to the Chief Reich Prosecutor. I have to mention again here that as far as my department was concerned, I had nothing to do with that case.
In the course of the conference with the Chief Reich Prosecutor, I termed Freisler as a psychopathic case -- an expression which one could have heard from others occasionally. The end of the conversation, as far as I remember it, was that the Chief Reich Prosecutor told me that also in the Ministry there were objections and misgivings against that sentence. That closed the matter for the moment because one had to wait for a decision of the Ministry.
Q Do you still remember, witness, what that decision was -- that decision by the Ministry?
A First a certain amount of time passed. The Chief Reich Prosecutor, as I believe, was away on vacation. I was also absent far a short time. It may have been in the beginning of November when again we discussed that matter, and I found out that the individual who had been sentenced had committed suicide by hanging in the meantime, and that, of course, made unnecessary any steps with the Ministry against that sentence.
Q Did you see any further sentences by Freisler later against which you could have done anything with any chance of success?
A No. A short time after, the main building of the People's Court burnt down. My department and two others were evacuated to Potsdam. From that time on, I no longer saw any sentence by Freisler. Moreover, as I have already mentioned, by the end of the year my sphere of work, particularly dealing with cases of undermining of military morale, was turned over by mo to another department.
Q Witness, the questions dealt with up to now did not refer to your work as department chief. May I ask you now to describe to the tribunal what the consequences of your personal attitude wore within your department?
A Throughout the years, I tried to work toward moderation, where that seemed necessary and possible. Of course, I was public prosecutor. I could not ignore the laws and was bound by directives. In many cases, even the chief of an official agency was powerless. In other cases, he may have had some right of decision. Then I could try, by speaking to him, to bring about a decision which was according to my thinking. That, of course, I did frequently. As to what attitude I had personally, I have explained that generally already, and I shall refer to individual examples later.
Q May it please the Tribunal, in this connection, I want to offer to support the statements by the witness, a number of documents. The first I want to offer in this connection is the Barnickel Document 80, Page 26, of the Document Book. It is an affidavit by First Prosecutor Erich Koalick of 2 June 1947. I offer this document as Barnickel Exhibit 14.
TBE PRESIDENT: The exhibit is received.
DR. TIPP: The next document I offer is from Page 47 of tho Document Book, the Barnickel Document No. 13, and is Barnickel Exhibit No. 15. It is an affidavit by Landgerichtsrat Heinrich von Zeschau of 15 July 1947. I offer it as Exhibit 15.
THE PRESIDENT: The exhibit is received.
BY DR. TIPP:
Q Furthermore, I offer on Page 53 of the Document Book, the Barnickel Document 15, an affidavit by Landgerichtsrat Haumann of the 30th of June 1947. I offer this as Exhibit No. 16. Then I want to refer to Barnickel Exhibit No. 9, Document No. 7, from Document Book No. 1; and finally, Barnickel Exhibit No. 8, tho Barnickel Document No. 10, as well as tho Barnickel Document No. 11, which is Exhibit 12. All of those statements refer to tho questions which Dr. Barnickel has elucidated.
Witness, you have just mentioned that you had frequent conferences with tho chief as is customary. May I ask you whether at any time tho chief made any statements about tho increasing severity of tho decisions of tho People's Court in general?
A Yes. I gather that from an entry in my diary of 15 June 1942, which states as follows; I quote:
"Later I had a conference with Lautz where I pointed out the fact that there wore so many death sentences, and how disagreeable it was."
That must have boon the time when the increasing severity of the decisions of the People's Court, and in particular, of individual senates became increasingly apparent. Apparently, I did not refer to any individual case, but I always had a rather reserved attitude as far as the death sentences were concerned. That had always been my point of view, end by making that statement, I quite in general terms wanted to express my animosity against the increasing application of that severity.
Q You have briefly explained what your position to the death sentence was, can you give us some explanations in general as to what your position was concerning the extent of penalty?
A Well, before I discuss that in detail, I should like to add to my brief statement that the Chief Reich Prosecutor at that time shared my misgivings, in my opinion, about the extent of penalty in general.
I want to refer to an entry in my diary of 6 September 1942. First I want to say that a short time before that I had bean in Munich, where I met an acquaintance of mine with whom I had worked before. I quote:
"I should like to point out here that Georgi recently told mo that at the time when I was Senior Public Prosecutor (at the old Bavarian Court) I had said that there was no sense in exaggerating punishment, because then it loses its effect.
He added that he had thought about that frequently and apparently he approved that point of view."
Later I find in the same entry, I qoute:
"If one imposes a punishment upon a person, which from various points of view one may consider a just one, and which also the defendant considers as just, it will have the desired effect. However, if one goes beyond that scope, the punishment will at least lose it moral effect, which of course it detrerrent on the individual punished, but it will not return him as a better but as a worse member of the people's community."
Q Witness, you just characterized your point of view concerning exaggerated extent of penalty and also the line of the People's Court -- at least of some senates. As a department chief, were you in a position to do anything in order to prevent that aggravation of the decisions of the People's Court?
A.- For a department chief, it was very difficult to do anything against the development of the practices and decisions, but that whereever I could do something I did so can be seen from an entry in my diary of the 29 June 1942. I quote:
"Bruchhaus -- that is one of my assistants -- today returned from Frankfurt very shocked because Engert, on principle, applies the death sentence against anyone who during the war still acted as a Communist. I told my assistants that we want to file indictments only with the Second Senate thereafter, in cases where we ourselves consider the death sentence mandatory."
That entry shows that I did not restrict myself to worrying about it, but that I also tried to do something about it. The entry also shows that the sentence had come quite unexpected for mo and for my assistant, but. time and again things happened which could not be anticipated. By coincidence, the sentence which I mention here is to be found among tho documents submitted by the prosecution. It is exhibit 492, and it also contains the name of Prosecutor Bruchhaus, whom I have mentioned.
What thoughts I had at that time about the sentence in particular, today, after more than five years have elapsed, I could no longer tell. At any rate, the large number of death sentences, was not to my liking, The measure against the Second Senate, which I mentioned in the entry in my diary, was also carried out by us.
In October or November of 1942, Engert surprisingly left the People's Court and was transferred to the Ministry.
Q.- Witness, you just said that that measure against the Second Senate, was actually carried out by you. It seems to me that an explanation is necessary on that. Could you choose the Senate with which you wated to file an indictment?
A.- No. We were bound by the plan for distribution of work. If I told my assistant at that time that only in special cases we wanted to file an indictment with the Second Senate, then that means that in all other cases we transferred the cases to the General Prosecutors.
Q.- May I also ask you, witness, to describe those possibilities which arose for you personally within the work of your department?
A.- One of the main possibilities left to the department chief was, of course, to admonish his assistants to moderation. The department chief, apart from that, did not have any independent- latitude except, as I said, in the case of transferring to the General Prosecution also in the case of certain clemency matters. In the field of administration of penalty and in special cases, reopenings of trials could be requested in favor of the defendants.
Q.- In this connection, may I refer to the Barnickel Exhibit No. 9, on page 15 of the Document Book; Exhibit 10, page 29 in the Document Book; and Exhibit 12 on Page 40 of the Document Book.
Q.- Witness, what influences could you exert in particular on your "referenten"?
A.- To quote examples, it was possible, concerning the investigations the motions, demands for penalties to be made in the session, censorship of letters, and similar matters -- to numerous to discuss them. I stressed objectivity and tact and good manners of the prosecution in the sessions. The so-called severe language of the prosecutor was prohibited by me as far as my department was concerned. I termed it frequently as being unnecessary, insulting and dangerous for a just ovaluation of a case. Of course, one could also do something in the field of purely personal influence in conversations with the assistants.
Q.- Could you give us any examples, as far as that is concerned?
A.- I was never afraid to speak quite openly about the tactics of the Party with my younger assistants. As an example, I want to quote the Stuermer actions, the Jewish questions, especially the events of the night of the 8 November 1939, which even later on were frequently discussed; the Polish question, the Hitler question of 1942, the struggle against the churches, and similar matters.
I believed that in doing so I could contribute a great deal to influence the point of view of my assistants in such matters.
Q.- In addition to other documents which refer to these cases, may I offer from Document Book I on page 55, the Barnickel Document. No. 14. That is an Affidavit by Landsgerichtsrat Dr. Lorenz of the 14 July 1947. That statement deals, apart from other matters, particularly with Dr. Barnickel's attitude concerning the fight against the churches. I offer this document as Barnickel Exhibit 17.
THE PRESIDENT: The exhibit is received.
BY DR. TIPP:
Q. If I understood your statement correctly then that part of your activity where you had the greatest latitude was transferring cases 11 the District Court of Appeals. May I ask you to refer to that once more?
A. That is right. I can only say that we could transfer those cases only where it was provided for by the law.
Q. Yesterday you mentioned that in cases of undermining of military morale, one could also assume in its place an offense against the Malicious Acts Law. Did that occur frequently?
A. It occurred quite frequently.
Q. Was it possible that a general public prosecutor filed an indictment for malicious act offense with the District Court of Appeals.
A. No, that was not possible, but if the general public prosecutor filed an indictment with the district Court of Appeals for the undermining of military morale, and if the Senate decided that it was a case of malicious act, the Senate could only sentence on the basis of its being a malicious act. The maximum penalty was 5 years in prison in that case, as I have explained yesterday. A sentence for the undermining of military morale and malicious act at the same time was impossible under the law.
Q. But if the general public prosecutor who had received a case of undermining military morale from you without ant further directives came to the conclusion that on the basis of further investigations, for instance, only the lesser offense of malicious act was apparent, what did he have to do?
A. I believe I touched upon that yesterday in answering a question put to me by the Presiding Judge. In a case like that we transferred the matter to the senior public prosecutor with the Special Court because it was a Malicious Act case.
Q. Maybe you can tell us briefly again why the district Court of Appeals as a rule were more lenient in deciding the cases that were transferred to them than the People's Court?
A. Whatever is transferred down from a higher court to a lower court as a rule is of less importance; and according to an old habit; matters which the Chief Reich Prosecutor transferred without further directives were considered cases of lesser importance. That, of course, affected the extent of penalty.
Q. Witness, yesterday you described the extraordinarly high number of transfers which you effected. Maybe it will be useful, however, if, to illustrate your practice, you give us some individual examples. Can you do that?
A. As I said yesterday, in 1943 we transferred almost 2,000 cases of undermining of military morale. Among these cases there probably were hundreds which would serve to clarify your question if we had the files. Unfortunately, I have only very little material at my disposal, and I can only mention two ca.ses in which &r. specific reasons I have the material. The first is the one of a priest by the name of Wepler from Eschwege. My department in the summer of 1943 received a case against that priest for undermining of military morale and listening to foreign broadcasts. To a member of his community he had made extremely pessimistic statements about the eventual outcome of the war. The case was no doubt a serious one because Wepler was a clergyman who had to expect rather severe standards to be applied to his case. His sentence would have occurred a short time after the downfall of Mussolini, and at that time legal practice became more and more severe. For all these reasons, I had serious doubts if in the case he would be sentenced by the People's Court he would only get a prison term, and I considered the transfer of this case urgently necessary. The Referent, as I remember, was of a different opinion, but I transferred the case to the Armed Forces Court in Kassel because Wepler at the same time was an Army chaplain; and when that court returned the file to us, I transferred the case to the general public prosecutor with the District Court of Appeals in Kassel.
Q. Before you continue, could you tell us what finally the sentence was against the priest Wepler?
A. Wepler received a prison term before the District Court of Appeals in Kassel to the extent of which I could not tell you at the moment.
Q. Will you then please continue your description, witness?
A. That concludes the description of that case; however, I should like to refer to an entry in my diary of 25 June '43, which shows that one of my assistants had confiscated a letter addressed to Wepler. I lifted that confiscation, and on that occasion told the assistant in Question that he was too severe.
Q. Witness, was it your task as the department chief to read letters which were addressed, to prisoners in detention pending trial?
A. No, that was a matter for the Dezernenten; but if one of these officials did not want to let a letter pass, it went through me. I very often cancelled such confiscations, and as the entry in my diary shows, I also reproached him for it in this case.
DR. TIPP: With reference to the Wepler Case, I shall offer from Document Book 2, page 122, the Barnickel Document Number 36. That is an affidavit by Karchenrat Fritz Klingler at Nurnberg of the 26th July '47. BY DR. TIPP:
Q. Witness, will you please describe the second case briefly?
A, That was a penal case against the man by the name of Funder and a Professor Meier-Thur from Hamburg. Both, after the air raid catastrophe at Hamburg at the end of July 1943 had walked around in the street there. At that time they male statements to the effect that the end of the Nazi rule had come and that one had to make an end to the war. Some women who thought that these men were British agents denounced them and the case came before us.
The case was serious as such, and in addition to that the defendants had been termed "politically suspicious"; and the Gauleiter of Hamburg, Kauffmann, who otherwise was considered quite tolerant, had considered the case a serious one. Before Freisler such a case would certainly have lead to a death sentence. I myself, however, was of the opinion that talk of that kind occurring just once after a, tremendous catastrophe such as had occurred in Hamburg was no reason for the most serious penalty. Professor Meier-Thur died in detention, and Funder got a moderate prison term.
DR. TIPP: In connection with that, I will offer from Document Book 2 page 125, the Barnickel document number 37. That is an affidavit by Frau Gerda. Rosenbruck of Hamburg of 27 July 1947. May I interrupt because my colleague Dr. Doetzer would like to make a statement.
DR. DOETZER. (Counsel for the defendant Nebelung): Mr. President, the witness Suchomel, who has been mentioned here so frequently and was called as a witness for cross examination has just arrived as I was told by my colleague Dr. Haensel. He asks, if possible, to be heard immediately because at two o'clock he has to return to Vienna by plane. He has urgent court sessions to attend in Vienna. The defense respectfully asks for a decision by the court.
THE PRESIDENT: Is there any objection on the part of the prosecution?
The defendant Barnickel may step down, and the witness may be examined immediately after the recess. The recess will be taken at this time.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
DR. HAENSEL: (For the defendant Dr. Joel) I ask to call the section chief Suchomel to the witness stand.
THE PRESIDENT: Dr. Haensel, the witness Suchomel has appeared before and has been sworn in this case; has he not?
Dr.HAENSEL: He has already been a witness in this trial.
THE PRESIDENT: And that was not when we were sitting as commissioners, but was before the Tribunal; was it not? Mr. Wooleyhan, this witness was sworn as a witness before the full Tribunal, was be not?
MR. WOOLEYHAN: It is my impression that he was cross examined before the full Tribunal; and was sworn.
THE PRESIDENT: Yes, You need not be sworn again.
SUCHOMEL, a witness, having been previously sworn, took the stand and testified as follows:
CROSS EXAMINATION BY DR. HAENSEL:
Q Witness, I assume that you have already been taken under oath; perhaps you can confirm it.
A Yes, I took the oath.
Q, If I am not mistaken, it was in June.
A Yes, it was.
Q Before that you were already once in Nurnberg and the Prosecution interrogated you. That interrogation resulted in several affidavits which were submitted; do you know this?
A Yes.
Q Now, we are concerned with those affidavits, and that is the first Exhibit 551 -
THE PRESIDENT: Just a moment. We find a note which seems to indicate that the witness was sworn at the time when we were sitting as commissioners. I think he should be sworn again, as a witness before the full Tribunal. Will you stand and be sworn, please.
BY JUDGE HARDING:
Hold up your right hand and repeat after me the following oath: I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
You may be seated.
BY DR. HAENSEL: (Attorney for the Defendant Joel)
Q Witness, in your affidavit which was introduced as Exhibit 551, and which you signed here in February, the assertion is expressed, the allegation is expressed that Guenther Joel was appointed general public prosecutor in Hamm because until that time the jurisdiction had been too lenient there; and now a man who followed the severe lino in accordance with the requirements was supposed to be appointed there. Was this a personal assumption, a conclusion on your own part, or, did you have any factual basis for that assumption?
A That was only a provisional conclusion that I drew; and I did that because a very short time before that I had had tho district of Hamm referred to me because the Ministerial Dirigent was not there and it was expressly called to my attention that in the district of Hamm more lenient sentences were passed than was in accordance with the average of the Reich.
Q Was it known to you at that time that Joel was the successor of a man who was an old party member, and a bearer of the Golden Party Badge, and who was than promoted from the post of senior public prosecutor in Hamm to that of the president of the district court of appeal?
A That was not known to me at the time; I had nothing to do with personnel matters.
Q These changes in personnel, that is to say the fact that a definite party man was replaced by Joel, in that combination, did you take that into consideration?
A No, I could not do that because I didn't know who was his predecessor.
Q In the subsequent time when Joel came to Hamm, did you then follow the sentences that were pronounced, that is, whether they were more lenient or more severe?
A I can't say anything about that. I had the district of Hamm no longer in my sub-division.
Q, Witness, the lights show that if -- if you will be so kind after my question to make a small pause because of the translation.
Is it known to you that the minister of Justice of Westphalia in the meantime had said that regarding the activities of the courts and the public prosecutions in the district of Hamm, before the collapse, nothing was to bo objected to.
A That is not known to me. About further events after the collapse I don't know anything at all.
Q With that I conclude my questions regarding Exhibit 551, and go over to Exhibit 534; the next exhibit which we want to discuss, witness, and in which you also among other statements mentioned Dr. Joel's activities. In discussing his activities are you speaking of his activity in individual penal cases, or, what were you thinking about?
A I am speaking of his activity in the individual criminal cases.
Q Was it Dr. Joel's task, and particularly in the field of crimes against the war economy, which were supposed to bo handled uniformly, regarding those now laws that prevailed throughout the entire Reich territory, was ho to see to it that all the public prosecutors applied them uniformly?
A Yes, that was the purpose of that special department, "Sonderreferate."
Q Thus, one could say that dealing with individual criminal cases constituted a ministerial guidance of the local public prosecutions.
A Yes.
Q You now described Dr. Joel in your affidavit as me of the most severe referents. In making this statement you were probably thinking of his activities in the field that we mentioned, the public prosecution.
A Yes.
Q Or were you thinking of anything special?
A No.