"A further point appears to me to be worth taking into consideration, namely the fact that one cannot accuse Jaehnichen of having a low character and that, above all, in Hohenstein the scum of humanity had to be attended to. In consideration of this fact I should like to leave it to you to consider whether the lapses call for such a severe degree of punishment" -- your Lordships will note the next words -- "or whether a pardon could not be considered.
"As Gauleiter of the NSDAP I consider it as my duty to call attention again to the unusual circumstances."
Now, my Lord, Dr. Guertner, the Minister of Justice, goes on, and this your Lordship may veil think is the most extraordinary and sinister part of it:
"Moreover, the information has come to hand that the two magistrates who functioned as judges in the principal trial, namely Regierungsamtmann Helbig and the merchant Pesler, had been expelled from the NSDAP after the announcement of the verdict. I do not know by whom this expulsion was ordered.
"Finally it has been put to the assistant prosecutor, Staatsanwalt Dr. Walther, who is a storm trooper, after the pronouncing of the verdict on his Obersturmbannfuehrer, that he should resign from the SA." extremely pertinent observations as to the impossibility of carrying on justice if this gees on. He says in the middle of that paragraph, the end of page 12 in the German version:
"That kind of procedure against lay judges after the verdict had been pronounced would naturally and necessarily arouse the feeling that when they are functioning as judges they are responsible to a certain office for their work. Hereby the judicial impartiality which is the foundation of every orderly administration of criminal law becomes null and void."
end of the paragraph he comes to the understandable conclusion:
"I would find myself obliged to consider the question whether in the face of such a state of affairs public prosecutors and judges could still be functionaries of the Party or members of the SA at all." English book, page 3 of the document, and page 13 of the German version, that there is a letter to the Chief of Staff of the SA of the NSDAP , with a copy of the following accusation enclosed. My Lord, that would be Lutze at that time because Roehm had been murdered before that date. The same points are put to the Chief of Staff of the NSDAP, and , My Lord, the matter then goes up to Hitler. My Lord, your Lordship will find the report that contains Hitler's decision on pages 13, 14 and 15 of the English version, and pages 16 to 33 of the German version. I think it starts on page 16. I hope Dr. Boehm will be able to find it.
My Lord, that is 785-PS. I am sorry, My Lord, I thought it was the same document. It is a different document. Your Lordship will see in the first paragraph a description of the crime:
"The mistreatment of inmates which has led to the sentencing of the accused was not carried out for any political purpose (to obtain a confession, to punish disciplinary infractions, etc.) or in response to previously suffered wrongs inflicted by Communists, but was merely malicious torture or expressions of sadistic brutality."
Then:
"A few cases of mistreatment occurred, however, where enemies of the State ware involved."
At the end of that paragraph:
"...the defendants not only attempted to wing confessions from the inmates, but that they had acted in sheer lust for torture."
"They acted in sheer lust for torture." This is a document coming from the Reich Chancellery, so your Lordship sees the criticism that was made in that quarter. But then, my Lord, it goes on to say at the end of the next paragraph about being motivated neither by political purposes nor by personal revenge. Then that is shown.
But, My Lord, at the top of page 14 it is stated:
"If, nevertheless, I suggest subsequently a further reduction of sentence based upon new evidence of some of the defendants, I can only justify my action because I believe that according to circumstances the defendants in one or the other case of mistreatment may have partly acted out of revolutionary motives."
I will repeat that:
".....may have partly acted out of revolutionary motives." is the appendix, Hitler's decision:
"Upon application of the Reich Minister of Justice " -- which was the preceding -- "I hereby grant in the case against Rudolf Jaehnichen and others for mistreatment of persons committed to protective custody in Hohenstein Concentration Camp, the following mitigation of sentences as enumerated in Column 6", and then roughly, my Lord, the sentence is reduced by either a third or a half in each case.
My Lord, I would just like to correct an exhibit number. The first document is U.S. Exhibit 732, and the second document 785-PS, will be GB-617. My Lord, I am again sorry; it is my mistake. It is US-733, the second document I am so sorry.
THE PRESIDENT: Perhaps we had better break off now.
(A recess was taken.)
SIR DAVID FYFE : I have finished with the submissioned documents. There are three more questions in crossexamination which I should like to put to the witness; and then I shall be finished with my cross examination. if you turn to Page 27, the Tribunal would like to know from the witness what the SA Sturm for Special Use was.
SIR DAVID FYFE : Your Lordship, I mention that because I told your lordship that the fact that Korn was on the staff of the Supreme SA Leadership was on 27, the last line of 26; and you'll see that the last line of 26 is :"Korn is at present in Munich on the staff of the Supreme SA Leadership." My Lord, then I'll ask the question. Stur, for Special Use, which was stationed in Nurnberg in the old Samariter Wache was; what task it carried out in assisting the police? use in various places, and in Nurnberg, too. The typical special task of this Sturm was to place themselves at disposal in case catastrophes. Furthermore, for police purposes when they were requested by the police and used by them as auxiliary police; also in fire extinguishing service; during the war in air raid service in Hamburg, for instance, and Westphalia. These were in general the tasks of the Sturm Bunders for special use. They were composed of men aho had an opportunity and who were suited for such tasks. who was on the staff of the Supreme SA Leadership, beat this Communist to death by using the bastinado on his feet. Was that one of the special uses which this Sturm indulged in when they were doing no work?
Was that the sort of thing, boating up Communists? Was that one of the special tasks? Was that a typical special task of this Sturm, to beat Communists in August 1933?
A No. That was never the task and if Korn did that he had to be punished.
Q You must hove known horn, didn't you? He was on the staff of the Supreme SA Leadership. didn't you? time; and this offense which has just been reported I know nothing of up until today. were deputy chief of staff of the SA? Are you really telling the Tribunal yon know nothing about the fact that one man From the staff of the Supreme Leadership had been engaged in this foul and brutal manner in Nurnberg, and you heard nothing about it? Is that your story? that I was deputy chief of staff only from 1939 on; up till then I was section chief and then chief of the Fuehrungsamt. were, that you said that you could give an account of the SA from 1933 onwards dealing with all relevant parts -- however, if that's your answer I'll leave it, I'll now take up another of your suggestions. Look at Document 1721-PS.
SIR DAVID FYFE : My Lord, that's the document that is in the original document book, My Lord, dealing with the events of November, 1938.
Q Now, Witness, I'm not going to argue with you; but I want you to point out certain things in the documents and then pass it to the Tribunal. You are not disputing that you wrote the document dated the 29th November, 1933, of which a copy in the first one in the bundle. That is the document dealing with the handing over of sews property, taken by the SA, to the Gestapo. Now, as understood you yesterday, you are not disputing that you did write that document, of which that is a copy? Is that so?
ment, and you will find on it the stamp of the SA Group Kurplatz. Do you see that?
Q And do you see in the stamp the letters "H", "W" and "O"? see "S D A", which is -- don't let's waste time -- ;"Zu den Akten" - "Put it in the File". Do you see the contraction, "ZDA"? saying is not authentic, and you will find on that the same stamp of the SA group Kurplatz, and the same letters, "H", "W" and "G". Do you see that? second document -- that is the document of the 11th -- the concentration "ZDA" in the same handwriting as on the first document? We you see that, at the to of the document, "ZDA"? that document, which is the report to the SA Group Electoral Palatinate, Kurplantz, dealing with a number of Standarten. Would you book under "Standarte 145"? Now, do you see that it says "Synagogue at Bensheim, Synagogue at Lorsch, Synagogue at Heppenheim Synagogue at Birkenau". Look at the next. Do you see that the next is the "Prayer House at Alsbach-Gebetshaus in Alsbach:, is it not?
A Which page, if I may ask?
Q It is in the list. It is the document of 11 November and it in a list.
It gives a series of Standarten, and the first is 115, and the next is 145. Do you see that? one -- I think it is Gebetshaus in Alsbach, he you see that? for the files of the telephone call by the Fuehrer of Brigade 50, Darmstadt, Brigadefuehrer Lucke. Do you see that? will see that it says, "The Synagogue in Bensheim destroyed by fire. The Synagogue in Lorsch near Bensheim destroyed by fire. The Synagogue in Heppenheim blown up. The Synagogue in Rimbach and Birkenau destroyed." Now, does it say the "Prayer Hall" -the word is "Die ethallc in Alsbach" -- destroyed? and a prayer hall, which is either called a "Gebetshaus" or a "Bethalle". Now the other pages contaon reports of different Standarten. to briny out these points free the witness, as he had challenged the document. point. You know that after these incidents of 9 and 10 November 1938, fourteen SA men were found guilty of killing Jews? Did you know that? Mens of various ranks in the SA were found guilty of killing. Wows? Do you accept that? The document is before the Tribunal of the Party Court, containing the decision. I do not wan to wast time is you will admit one thing I put to you. Do you admit that fourteen SA men were found guilty by the Party Court after 9 aid 10 November of killing Jews?
prisoner -- that the fourteen SA men are mentioned who are supposed to have shot Jews or had Jews Killed. whenever SA men were guilty of excesses, they were punished. Do you Know that all the SA men who had killed Jews ware left off, that the only SA men who were sent for punishment were those who had committed rape or theft, three of them who had committed race and theft? Do you know that all these fourteen SA officers were let off for this murder?
A I am convinced that they were punished by the SA. The punishment for the murder which is mentioned here was a matter for the popular courts. I could not know whether they were ounished there. before the Tribunal. The regular court let them off because they fell "Within the line of Party comrades who, motivated by the decent National Socialist attitude and initiative, had overshot the mark. " That is why the Party Court let them off, according to their own document. Now are you saying that the Party or the So punished people for ill-berating Jews when these 14 murderers of Jewish women and children and men were lot off because they were "motivated by the decent National Socialist spirits" are you saying that they were punished?
A Please show me this document. I consider it impossible that the Supreme SA leadership took this attitude. Supreme Court of the Party, composed of Gauleiters. Socialism, and that is what they did -- they recommended that these fourteen SA murderers should be let off. How did that square with your suggestion that murder was frowned upon?
A Please understand that the Supreme Party Court was a Reich institution of the Party and the SA had its own SA Court.
The SA leadership and the Chief of Staff as the Supreme SA Court had influence only on the SA Court, not on the Supreme Party Court. Court had let off these fourteen murerers in the SA after 1938? or from this document. fourteen officers of his own organization had committed cruel and bloody murders? That is what you tell this Tribunal? and is still convinced today that all excesses of the 8, 9 and 10 November, so far as they were committed by SA members the SA but by the regular courts. I know from the words of Chief of Staff Lutze that he insisted on that. I will not deny that one or another offence did not become known to him. You have represented Chief of Staff Roehm as beina a peace loving, church-going man. Is that the impression you want this Tribunal to have of the character of Chief of Staff Roehm -that he was a peace-loving, church-going man? understand, I said that Chief of Staff Roehm belonged to the church. He was not opposed to the church. He was peaceful. It has been shown, and I myself am a witness, that he told not only the SA Fuehrers but also representatives of foreign powers repeatedly -- that he emphasized the friendly relations which he endeavored to bring about.
Q I just want you to look at an extract of Hitler's speech on the 13th of July, 1934, a fortnight after the Putsch.
SIR DAVID MAXWELL FYFE: My Lord, I passed on to the witness an extract for 1934. I put in an extract from the Times. BY SIR DAVID MAXWELL FYFE: Reichstag: "At this point I must establish the fact for the present and for posterity that these men no longer posess any right to invoke National Socialism as an ideology." This is Roehm and his friends. "Their lives have become as bad as those of the people we overcame and repressed in 1933. The behavior of these men made it impossible for me to invite them to my house or to enter the Chief of Staff's house in Berlin even once. That would have become of Germany had these people been victorious it is difficult to imagine." Now, witness, you know perfectly well, and I ask you to tell the Tribunal, why was it that Hitler wouldn't enter Roehm's house even once ?
A That was up to Hitler. I cannot judge that; I can not give you any information. torious homesexualist in Germany, isn't that right ? but that that was Hitler's reason, I do not know.
SIR DAVID MAXWELL FYFE: My Lord, I am sorry, there is one duty that I had forgotten. Your Lordship asked me to put the affidavit of Dr. Hoegner to this witness. He was the Prime Minister of Bavaria. If your Lordship remembers, Dr. Boehm referred to it and your Lordship suggested that I should put it in cross examination. I think the Tribunal have copies, My Lord. That is document D-930, GB-617.
THE PRESIDENT: Sir David, I don't remember saying you should put it to him. I think what I said was that if you did put it to him that Dr. Boehm then would have an opportunity in re-examination of him upon it, and if you did not put it in evidence, it already being in evidence, it would be in evidence.
SIR DAVID MAXWELL FYFE: My Lord, I have no desire to put it. I thought Your Lordship wanted me to do it. This is one of the group of affidavits which I mentioned to the Tribunal that I would give to the defense counsel at once, as they are general affidavits from ministers and other prominent people in Germany which are in general rebuttal of the affidavits put in by the defense, and My Lord, I was quite content--in fact I suggested and the Tribunal approved--that they should be read when we are dealing with the documents after the defense documents, but that I should give it to the defense so that they would have an opportunity in advance of seeing them. My Lord, that is my position, and I am very content to adhere to it.
THE PRESIDENT: If you want to make use of it, I think perhaps it should be offered in evidence so as to make it strictly in evidence.
SIR DAVID MAXWELL FYFE: Well, My Lord, I am quite able to do that. They were going to be offered in evidence as affidavits. My Lord, it is only a matter of procedure; I don't mind which-- of course the Tribunal will decide that. The defense are putting in about 3,000,000 affidavits which are being summarized in a number of general affidavits. My Lord, I suggested the other day that we should put in--at the same time we should put in rebuttal these few affidavits that we have.
THE PRESIDENT: Well, do it then. Offer it in evidence now.
SIR DAVID MAXWELL FYFE: Well, My Lord, I will do that.
THE PRESIDENT: Is there any other rebuttal besides these affidavits ?
SIR DAVID MAXWELL FYFE: My Lord, it is this group-I think there is one addition to it, My Lord, but that is all the rebuttal as far as I know.
THE PRESIDENT: Yes, you are not going to apply to call any additional witnesses ?
SIR DAVID MAZWELL FYFE: No, My Lord. I will not try to say for my colleagues, but as far as I know, I haven't. I will verify that at once, My Lord. any oral evidence in rebuttal.
THE PRESIDENT: Very well.
SIR DAVID MAXWELL FYFE: My Lord, this is the affidavit of Dr. Wilhelm Hoegner, the Bavarian Prime Minister, and it gives his address. In the second paragraph he mentions: "The two pamphlets, part I and part II, submitted to me-'Hitler and Kahr, the Bavarian would-be Napoleons of 1923, a scandal of justice, exposed in the committee of inquiry of the Bavarian Provincial Diet', we re written by me. At that time I was assistant reporter of the committee of inquiry of the Bavarian Provincial Diet on the Hitler Putsch of 1923. All the facts mentioned in these pamphlets originate from court documents through which I worked personally and from which I made extracts. That also applies especially to the military orders and instructions, partly quoted literally in the pamphlets." and violent activities of the SA from 1921 to 1933, and, My Lord, that is the long paragraph. Then he goes on to say, dealing with 1933 and 1934: "The SA did not change their behavior later on either. Especially after 1930 it distinguished itself in the conflicts with its political opponents by its violence and ruthlessness. After the coming into power of the National Socialists, the SA broke into the houses of political opponents as heavily armed hordes, ill-treated and arrested them.
It is known to me that the SA also played an evil part in the persecutions of the Jews in April 1933. The same was the case in the occupation of the Trades Union buildings on the 2nd of May, 1933. Already before that, the chairman of the Munich Trades Unions, Gustav Schiefer, had actually been attacked by members of the SA in the Trades Union building, and so seriously ill-treated that he had to spend a long time in the hospital." information about the SS in the next paragraph. And then in the pre-penultimate paragraph, it says: "Before my departure from Germany the former Communist Diet Deputies Dressel and Schlaffer were murdered in the concentration camp of Dachau, probably in May, 1933. Whether by the SS or the SA, I do not remember for certain. I knew the incident very well because I complained about it to the Reich Minister of Justice, Dr. Guertner, in Berlin." body else. Then he says. "The gross excesses of the SA and SS in the service of the NSDAP were accomplished so publicly that the whole population knew about such excesses.
THE PRESIDENT: Does he say when he left Germany?
SIR DAVID MAXWELL FYFE: My Lord, I don't think he does.
THE PRESIDENT: It is rather material, isn't it ?
SIR DAVID MAXWELL FYFE: My Lord, I will get that point discovered. Your Lordship is of course right, we ought to have had that stated as to when he did leave Germany.
THE PRESIDENT: Perhaps one ought to conclude from the document that it only relates to 1933.
SIR DAVID MAXWELL FYFE: well My Lord, he does say; "After the coming into power of the National Socialists, the SA ......" did so and so. That is after the beginning and he goes up to May, 1933, to the Trade Unions. But Your Lordship is quite right.
There is no specific dote given after 1933.
I will verify that point, My Lord. Much obliged, My Lord.
THE PRESIDENT: Dr. Boehm, hadn't you better wait for your re-examination until after Dr. Seidl has asked questions, if he wants to ask them?
DR. BOEHM: Certainly, but I should like to make one suggestion. The declaration of Dr. Hoegner was submitted at my suggestion, as I gathered, and I now ask that the statment of the State prosecutor and the Court in Braunschweig and the declaration of Dr. Schumacher and the declaration of the -Mayor of the provincial capitol of Braunschweig should also be submitted. These are affidavits which were given to me with the affidavit of Dr. Hoegner.
THE PRESIDENT: You ask that we should consider the other seven affidavits which were given to you at the same time ?
DR. BOEHM: Yes, certainly. I have learned now that the affidavit of Dr. Hoegner was introduced because I referred to it yesterday. Now those other affidavits form evidence in favor of the organization. They were placed at my disposal or given to me at the same time and I would ask the prosecutor to submit the affidavits which have just been mentioned or to introduce them into the trial so that I may have an opportunity, in the coarse of evidence, to have the witness comment on the contents of these affidavits.
SIR DAVID MAXWELL FYFE: My Lord, I have no objection, of course, t Dr. Boehm's putting away of the documents. We have given, I think, all, whether we have decided to use them or not. Some are not in the form of a sworn statement, and we were not going to use them. If Dr. Boehm thinks that he can get any help from any document to be had from the prosecution, the Prosecution, of course, make no objection to his using it.
DR. BOEHM: Mr. President -
THE PRESIDENT: Dr. Boehm, you can offer these affidavits or other documents in evidence, if you want to.
DR. BOEHM: Very well. I am in a position to refer to the affidavits in the course of the taking of evidence.
THE PRESIDENT: Yes. But for the purpose of the record, you must offer them in evidence, and they will be given, or you will give them, proper exhibit numbers.
DR. BOEHM: Very well.
DR. SEIDL (Counsel for the defendants Hans Frank and Rudolf Hess): Mr. President, yesterday the Prosecution submitted a new document, GB-602, a letter from the commander of the Security Police, General Warlimont, to the defendant Dr. Frank.
THE PRESIDENT: What is the other reference to it? You said GB-602 It must have some other reference.
DR. SEIDL: D-970. It is a letter from the commander of the Security Police in the Government General to the defendant Dr. Frank of the 26th of September 1944. The document also says that it is an annex, and I make the application that I may be permitted to submit an excerpt from the diary of Dr. Frank, which belongs to this document.
THE PRESIDENT: If it refers to this document, yes.
DR. SEIDL: This is an entry of Tuesday, the 26th of September, 19 "Conference with the State Secretary Buehler.
In this conference the murder of the Prior at Czerna was discussed. The Commander of the Security Police in the Government General reported on this incident."
This is the report of the prosecution:
"In the opinion of the Governor General, this report was not suitable and the Police Office at Kattowitz wanted to take the responsibility and lay down the condition that in the future not SA men but Police officials would carry out such undertakings.
The Governor General told the first public prosecutor Roter to carry out a detailed investigation of that case."
The diary does not show what happened to these SA men. Therefore, I have taken an affidavit of the Defendant Frank which I ask to be permitted to submit in evidence here. It is very brief. It indicates that the people were tried and received severe punishment.
THE PRESIDENT: Are you offering the affidavit in evidence?
DR. SEIDL: I should like to offer this as Frank Exhibit 25.
THE PRESIDENT: Have you any other documents that you want to offer in evidence?
DR. SEIDL: This is the only new document that I want to offer in evidence.
THE PRESIDENT: Very well, then. I think we may as well put it in new, and you will put it in as Frank Exhibit 25. And you did not give us -
DR. SEIDL: Frank No. 25.
THE PRESIDENT: Did you give us the reference to the diary of Prank, the passage that you read?
DR. SEIDL: It is an entry of the 26th of September, 1944.
THE PRESIDENT: Is that already in evidence? I know some parts of the diary are. But is that in evidence?
DR. SEIDL: It is a part of the document GB-602.
THE PRESIDENT: Will you state that again? What was the number of the document?
DR. SEIDL: GB-602.
THE PRESIDENT: That is not Franks diary, is it? GB-602?
DR. SEIDL: No; but the letter submitted by the prosecution by the Commander of the Security Police.
THE PRESIDENT: I know that. I was asking the number, if it has an exhibit number, of the diary of Frank of the 26th of September, 1944.
DR. SEIDL: This has the number 10. The whole diary was submitted in evidence under this number.
MR. DODD: Mr. President, I do not wish to object to the submission of this affidavit; but I should like to observe that if other affidavits are offered by the defendants, it may be necessary for the prosecution to have the right to cross-examine in this case. But it might very well call for cross examination if they are now going to make an effort to put in further testimony on their own behalf under the disguise of an affidavit.
DR. SEIDL: Mr. President, my intention was to recall the defendant Frank to the witness stand and examine him on this question. If I submit an affidavit, this is done only to save time, and for on other reason. I would have preferred it the other way.
MR. DODD: I am not altogether sure, Mr. President, that this is done in the interests of saving time. I have some feeling it may be cone in the interests of prolonging the time.
THE PRESIDENT: We do not heed to hear any more, Dr. Seidl. We have admitted the document.
DR. SEIDL: I may assume that this brief affidavit may be read into the record. Exhibit 602 was also read into the record.
THE PRESIDENT: Haven't you read it? Read it into the record, then if you say it is short.
DR. SEIDL: "In the second half of September, 19744, Governor Dr. von Burgsdorff reported to me that the Prior of the Karmeliter Monastery Czerna had lost his life and that there was a suspicion of punishable action. I immediately ordered that an investigation be made and ordered, the case to be prosecuted. In the course of this investigation procedure, the Commander of the Security Police in the Government General made a report on the 25th of September, 1944, which has now been submitted by the prosecution under the number D-970, GB 602. This report was also the subject of a discussion which I had with the State Secretary Dr. Buehler and Keppe, on the 26th of September, 1944, and also with higher officers, during the course of which I ordered State Prosecutor Roter to make a detailed investigation of the case "Further investigations have shown that the men mentioned in the report of the 25th of September, 1944, GB 602, did not belong to an SA unit of the Government General.
As is already shown from the report of the 25th of September, 1944, the Monastery Czerna, although still within the boundaries of the Government General, was subordinated on the basis of a Fuehrer decree of the summer of 1944 with regard to customs, police, and military administration, to the neighboring province of Upper Silesia, which was in the Reich.
The order of the Fuehrer had to be given in connection with the fortification work to be carried through in the East at that time. It can be thereby explained, as is shown from Document GB-602, that the investigation of the State police Office of Kattowitz has actually peen carried the by a State police office, which is situated in the Reich territory. Ilkenau was not situated in the Government General, but in the Reich (Upper Silesia ). In these details not only SA men, but also members of other organizations, such as members of the Volkssturmmaenner were used.