A They must have been informed, yes.
Q Witness, I am now coming to the Schnaus case. About this case you say that the sentence passed on Schnaus under Article 4 of the Public Enemy Law in a later report by the Prosecutor General had been criticized as a serious mistake in the application of the law. Which provision did the Prosecutor General wish to see applied? Do you still know that?
AAs far as I remember, the Law Against Dangerour Habitual Criminals.
Q What would have been the consequence of the application of that law?
A The death sentence, too.
Q Do you remember that the Prosecutor General in his opinion took into account the person of the criminal and the particularly base crime and therefore turned down a reprieve?
A Yes, I do remember that.
Q I am now coming to the Giani and Sala case. Did you represent the Prosecution at the trial?
A Yes, I did.
Q Do you remember that in the case of Giani and Sala when the short charge was brought a defense counsel was appointed by the Court?
A I cannot say so without seeing the files, but I assume so.
Q Do you remember on what legal provisions the indictment was based?
AAmong other things probably on Articles 2 and 4 of the Law Against Public Enemies in connection with theft committed by a gang.
Q Is it correct that in this case the Prosecution was thinking of demanding the death sentence of Giani and Sala?
A Yes, that is correct.
Q Three thefts were committed, and in the case of two thefts Giani and Sala disputed that they had taken part in them. Were there any indications to that effect?
A There was circumstantial evidence; otherwise the charge would not have been brought.
Q After all evidence had been taken did you maintain your plea for the death sentence on Giani and Sala?
A I asked for the death sentence.
Q You go on to say that the evidence brought out several points in favor of the defendants. Do I understand you correctly if I assume that the trial did not bring out any new points of view, either for or against the defendants?
A Essential new points of view I cannot remember.
Q. Can you remember that after the defendants had been arrested, that the thefts ceased?
A. I do not believe that they ceased altogether.
Q. Witness, I am now coming to the Becker case. In that case, too, you were the prosecutor?
A. Yes, that is right.
Q. Can you remember that in that case too, the prosecution intended to ask for the death sentence?
A. I do not remember that with certainty.
Q. Witness, I am now coming to the Friedchen case. I am going to show you the files. Please have a look at this document. Give us a statement before you read it aloud, and then tell us whether these are the instructions from the prosecutor general.
A. To begin with I must say that the Friedchen case was not dealt with by my department, referat, so that the report by the prosecutor general which I am now going to read aloud -- I correct myself -- the instructions from the prosecutor general -- naturally did not reach me at the time. I only beard about it at the trial; it is a letter from the prosecutor general in Nurnberg, No. 9941, -
MR. KING: If the Court please , in view of what the witness has said regarding these instructions, it would seem to me that the reading of it would add nothing at all to the record because obviously they had no effect on this witness. Therefore, since they are rather long, I suggest that they do not be read, and I specifically object to their reading at this time.
THE PRESIDENT: Suppose they had an effect on Oeschey?
MR. KING: That wasn't the question; it was what effect it had on the present witness. If the question were directed the other way, the manner in which it involved Oeschey, I would withdraw my objection.
DR. SCHUBERT: It is important for the defendant Oeschey, and may it please the Tribunal, it's instructions which must have been submitted to the witness at the time because he was a prosecutor at the trial.
A. Yes, as prosecutor at the trial I did see these instructions.
Q. Please read it out, witness.
A. RE: Criminal proceedings against Heinrich Friedchen. I would ask you to examine whether the application of the law of 4 September, 1941 is not advisable. The defendant has nineteen previous convictions, and served more than eight years in prison; he comes from a family with serious criminal indications; the father was sentenced thirty-three times; one brother nine times; another ten times; he shows all the characteristic criteria of an incorrigible criminal who is a public danger, and is also otherwise of inferior character, and shies away from work; taken all in all an a social type, who is nothing but a burden for the community; he is at an age at which, if an improvement can be expected at all, he should have one through a different conduct of life.
Q. Was that the instruction by the Prosecutor General, witness, which you saw as prosecutor?
A. I cannot remember, but his files were passed to us at the trial; that can be assumed for certain.
Q. At the trial did you ask for the death sentence on the basis of those instructions?
A. Yes.
Q. Witness, in your affidavit you say that feeble-mindedness of the defendant had not been taken into consideration. Do you remember that the court physician described the defendant as responsible , that he thought that neither Article 51. Section I or II applied?
A. I do not remember details, but I believe I can recollect the fact that feeble mindedness up to a certain extent did exist in his expert opinion.
Q. I am now coming to the Riegelbauer case. In that case, too, you refer to the feeble mindedness; were you at that trial the prosecutor?
A. As far as I remember, yes; as far as I know I only know about the case from the trial.
Q. Can you remember what sentence you demanded?
A I assume that I asked for the death sentence.
Q. Do you remember that the expert Dr. Schumacher gave an expert opinion according to which the defendant was not to be described as feeble minded, but only as somewhat stupid?
A. I believe that the circumstances were similar to the previous case.
Q. Dr. Mueller, I am now coming to the Pirner case, the juvenile case. Do you know under what law Pirner was indicted?
A. Under the law? I do not remember for certain, but Article II and IV of the Law Against Public Enemies, in conjunction with serious theft; it may have been that; beyond that, I believe I can remember the indictment had quoted the Law Against Juvenile Serious Criminals.
Q. Witness, may I show the indictment to you. I believe that the law is not quoted.
A. You are right; it is not quoted.
Q. Witness -- did the view of the prosecution matter whether the defendant committed the majority of his crimes before his eighteenth birthday? There were other proceedings that concerned juvenile criminals; is that correct?
A. That is correct.
Q. Therefore, was what mattered the question whether the defendant in respect of the few crimes which he had committed before his eighteenth birthday, was it to be evaluated in the same way as a person over eighteen years of age?
A. The indictment as is evident from the files was not based upon that.
A. What sentence did the prosecution intend to ask for?
A. As is evident from the files, the death sentence.
Q. Dr. Mueller, do you remember what was the relations between the thefts which were committed before and after the eighteenth birthday-whether the majority were committed before or after?
A. I cannot say that without the files.
THE PRESIDENT: Dr. Schubert, we have reached the time for our usual noon recess. We will , therefore, recess until 1:30.
(A recess was taken until 1333 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours.)
THE MARSHAL: Persons in the Courtroon will please find their seats.
The Tribunal is again in session.
DR. SCHUBERT: May it please the Court, may I continue the crossexamination of the witness Mueller?
THE PRESIDENT: Proceed.
Q Dr. Mueller, we are now coming to the Irmgard Hofmann case. You stated in your affidavit that the request for reopening of the trial was refused by Oeschey. I am here showing you the file on the Hofmann case. Is that what you have before you, the decision about the application for the reopening of the case?
A Yes, I meant Oeschey as presiding judge.
Q Who also signed the decision?
A District Court Director Daeumler and District Court Director Hofmann.
Q Would you please state merely what was the subject of the decision?
A The application of the defense counsel of the convicted Irmagard Hofmann, is rejected as inadmissible -- she was to pay the cost.
Q In your affidavit you state that you have misgivings about this procedure. Do I understand you correctly that you said, in your opinion, another trial should have taken place, and not the written method; is that correct?
A Yes, that is my opinion.
Q But you admist, witness, that that is a question of law, which can be argued?
AAny legal question can be argued, probably.
Q Did the Reich Ministry of Justice, thereupon, still make a decision about the question of clemency?
A Of course.
Q You said, furthermore, that the complaint of the defense counsel against the decision, that is, the decision which you have just seen and read, was not admitted because it was inadmissible.
Was there any legal recourse against the decision of the Special Court, and thus against this decision?
A. At that time, no longer.
A. Dr. Mueller, I am now coming to the Montgelas case. In your affidavit you state that it was a case of political exterpination which was handled in a most hideous fashion. You, yourself, if I understood you correctly, only dealt with this matter until the files were turned over to the People's Court; is that correct?
A. Yes.
Q. Your criticism about this case of extermination thus refers to the time at which you know the files; is that correct?
A. By that statement, I wanted to desccibe the manner in which, in my opinion, the Count Montgelas was made to make a statement about the conditions in the Reich of that time.
Q. That was, to put it briefer, the method of the trap in the Grand Hotel?
A. Yes*
Q Yes, that is the method by which the Gestapo laid a trap for Count Montgelas.
A Yes, that is what is was.
Q Can you bring the defendant Oeschey into connection with this matter in any way?
A I have no reason by which I could do that.
Q Dr. Mueller, do you still remember what the statements of Count Montgelas, which were objected to consisted of?
A The remarks were very extensive. I can hardly remember precise details any longer.
Q At that time, when you were prosecutor, you decided to turn the matter over to the People's Court. How did you thus qualify the deed of Count Montgelas from a legal point of view?
AAccording to the jurisdiction prevailing at that time, in view of the content of the remarks there could be no doubt that it meant an undermining of the military strength.
Q Another witness testified once, here, that remarks of such seriousness never occurred during the entire time he practised. Can you confirm that?
A I can say, in any case, that there remarks which fell out of tho framework of denunciation of a similar kind which normally occurred.
Q What sentence could Count Montgelas expect of the People's Court? What would have befallen him at the Peoples Court?
A I know tho sentences which the people's courts pronounced only from newspapers, but I do not doubt at all that if it had been possible if time had permitted, to carry out the trial at the Peoples Court, it would have pronounced, the death sentence.
Q With the turning over of the files to the People's Court your official knowledge of the matter ends, is that correct?
A Yes, as a whole, yes.
Q To what extent the defendant Oeschey was actively working on the later trial you can thus not say from your own knowledge, or experience? 3772
A No.
Q Witness, as the last case you mention the case Freicorps Plaerrer. In that case, were you also the prosecutor in the trial?
A Yes, I was.
Q In your interrogation by the prosecution, were you shown any documents about this case?
A The interrogator showed me portions from a copy of an indictment.
Q An indictment was shown to you?
A It was not shown to me, but something was read to me from it.
Q Dr. Mueller, do you know what was the legal point of view of the prosecution in this case view under which law the indictment was made?
A To give an exact legal qualification in view of the large number of penal laws which could be considered, is not possible for me without document. However, certainly the exploitation of the blackout and also article 2 of the law against public enemies were considered.
Q And the order against violent criminals, could that also have been in question?
A Yes, that, too, could have been considered.
Q In this case, did the General Public Prosecutor Bens have a very active interest?
A Yes.
Q Was there an instruction issued to the prosecutor what sentence he should ask for?
A General Public Prosecutor Bens, after the submission of evidence, gave me instructions.
Q Were the instructions to the effect that the death sentence should be asked for for the three main criminals?
AAs far as I remember, against Kurz and Mandziuk an application for death sentence; against Malinowski, I can not remember.
Q Was the defendant Kurz a German?
A Kurz was, if I am not very much mistaken, a German. I believe that he certainly was.
Q Dr. Mueller, I have one concluding question. Last Monday, did we discuss your affidavit together?
A Yes.
Q In our discussion, was anybody else present?
A No. During the discussion - no.
Q Did I, or anybody else, exercise pressure upon you, and were awards or disadvantages pointed out to you, if you gave a certain testimony?
A No.
DR. SCHUBERT: I have concluded the cross examination.
THE PRESIDENT: Any other cross-examination of this witness. Any redirect examination?
JUDGE BRAND: Mr. Witness, I should like to ask you about two questions.
Q You were asked about the violent statements that Count Montgelas made in the Grand Hotel. Do you remember whether Montgelas made any statements in the nature of a plan of action against the government, or were the statements merely violent opposition to the government?
AA plan for action in particular I can not remember. Whether or not some hints of some kind - of a plan for overthrowing the government existed -- that I can no longer remember. I believe that in our case there was some talk about it -- that the system - the government existing at that time, would not hold power very much longer.
JUDGE BRAND: Another question.
Q I think in the discussion of the Strobel case you said that the indictment was extended at the trial. Am I correct?
A I believe I can be misunderstood here. Between the reading of the indictment and the making of the plea, I did not make any new important statement.
Q In the indictment, you mean?
A No, during the second trial. Between the reading -- I mean to say, at the beginning of the second trial I, if my memory does not deceive me, read the indictment again in its old form. At the end of the trial, that is, after the submission of evidence had been completed, on the other hand I based the plea on the basis of the law against dangerous habitual criminals.
Q Yes, then the only extension of the charge was to be found in your final plea in which you invoked the more serious statute, is that correct?
A Yes, that is correct.
JUDGE BRAND: That is all, thank you.
REDIRECT EXAMINATION
MR. KING: I also want to ask you one, perhaps two, questions concerning the Strobel case. Taking up where his Honor, Judge Brand left off, may I ask you who told you to change the plea from "Heimtuecke" to dangerous, habitual criminal in your final summation. Before you answer that may I review the facts as I understand them, and if I am incorrect will you please correct me before you proceed. First, an indictment was filed. And the trial on that charge was held in November, November 30th. Then that trial was discontinued on orders of Oeschey. It was resumed again on the 19th of February, the following year. The same indictment served as the basis for the second trial. No new facts were added. The accused's criminal record was read during the first trial, and no essential new facts were added during the second. The defendant was not informed that the charge was to be extended until you so advised him in your summation.
Now I will repeat my question: Who told you at that time to charge habitual criminality rather than "Heimtuecke" in order that the death sentence could be given against this defendant?
A. After the first trial had been discontinued, the files about previous convictions were consulted, because these files about previous convictions were important for the final decision as to whether Strobel was a habitual criminal and they had to form the basis of this decision.
Q. Perhaps it would be better, witness, if you answer my question first and then explain the circumstances afterwards. You will recall my question was, who ordered you to change the charge in your summation from that of "Heimtuecke" to "dangerous habitual criminality"?
A. At the end of the first trial the decision of the court was announced...
Q. No, witness, I am again repeating my question: At the end of the second trial, when the witness was still charged with malicious utterances, "Heimtuecke," that is, and you thereupon got up in your summation and extended, as you put it, the indictment to habitual criminality, who was it who ordered you to make that change? You say in your affidavit that you were against it. Now, if you were against it, some one must have ordered you to make that change. Who was that person?
A. Before I entered the second trial I had already been given instructions by the Ministry of Justice to ask for the death penalty, for the files had again been submitted, pointing out the way they would be worked on in the future; and this material treatment of the case was agreed to by the Ministry.
Q. I don't think you have answered the question. Lets try it once more.
Perhaps the objection should wait until I have asked the question.
You state in your affidavit in effect that you were opposed to the result.
Now, if some one in the Ministry of Justice did order you to, as you out it, extend the verdict, do you know who that was?
A. Who the expert in the Ministry was? I don't know, because the files came back without indicating it. I did not know the intimate conditions in the Ministry of Justice and I could not know who had made the decision in the Ministry of Justice.
Q. Do you have any impression as to who ordered the Ministry of Justice to order you to extend the indictment? I find it difficult to conceive of the Ministry of Justice suddenly becoming interested in a case in the Nurnberg Special Court without urging from some individual here on the Court.
A. Yes; the trial was conducted at the Special Court under the presiding judgeship of Oeschey and had been discontinued the first time. This decision for discontinuance was the cause of having the files resubmitted, and that led to the decision of the Ministry of Justice.
Q. Are you saying that Oeschey was the one who ordered you to extend this indictment? Is that what you are saying?
A. Oeschey could not give an order to me in that sense, it was the decision of the Court according to which I had to guide my way of working on the case, namely, the submission to the Ministry. I had to do it that way; I was forced to do it that way.
Q. Yes, I understand you were forced to do it that way, and your explanation is that you were acting pursuant to a court order, the order coming from the court which was presided over by Oeschey; is that correct?
DR. SCHUBERT: I object to that question, Your Honor; I object to that question. The witness has just stated that the court could not give any orders to him. Now, the witness is supposed to be pinned down to saying that he acted in accordance with an order by the court. The witness has already denied that, and in my opinion the question cannot be put a second time.
MR. KING: I understood the witness to say that he acted pursuant to a court order. He said he couldn't say that Oeschey made the order because it was an order of the court. Now I am asking, was it an order of the court, and was it an order of the court over which Oeschey presided? I think that question can be answered because it includes the doubtful point that he had in his answer, at least doubtful in my mind.
THE PRESIDENT: There is no reason why the witness should not try to answer it; he hasn't made a very good effort so far.
THE WITNESS: It was a decision of the court over which Oeschey presided, according to which the further handling of the case had to be carried out.
MR. KING: All right. In the affidavit which you signed, on which you have been questioned this morning and this afternoon, there are a number of cases referred to. Dr. Schubert has crossexamined you at some length on most of them and has shown you, at the same time, the case files. My question to you at this time is this. When you made this affidavit and the interrogator, Mr. Einstein, discussed with you these various cases, you were, were you not, shown the case files of the cases which are discussed in this affidavit?
A. Yes.
Q. So that you had every opportunity to examine the files of those cases before you made your answers? Is that correct?
A. Yes.
Q. I only have one more general question. You have stated in your affidavit, and your testimony this morning in response to Dr. Schubert's questions was along the same line, that in very many instances you were not personally in favor of the penalty for which you were required to ask. Now, my question is this: Where you were of one opinion and you based your opinion on the facts and the law as you understood, them, and you later were required to ask for a penalty which was not consistent with what you thought was right, was that change made necessary by a court order, the same as occurred in the Strobel case?
And if that was not the case in all of the cases where you were forced to change your view, in what cases was it not true?
DR. SCHUBERT: One moment, please. May it please the Court, I object to the question. During my cross-examination I never touched the question as to what was the witness' personal opinion, but I limited myself to the finding out of what instructions were given to the witness. I could never ask him during the cross-examination, therefore, how it came about that he changed his opinion in some way. Therefore, the question of the prosecution which is under discussion now is outside of the framework of the cross-examination.
MR. KING: I don't believe it is outside of the framework of the cross-examination for the reason that Dr. Schubert saw fit to go into the facts of each of these cases, and whether he actually drew out in so many words the conclusion that affects this witness, the fact remains that was the inference he was striving to have the Court draw and I think I am entitled to ask the question as it has been stated.
THE PRESIDENT: It is my recollection, Dr. Schubert, that you quoted some parts of this affidavit, not in every case but in some cases.
DR. SCHUBERT: That is absolutely correct, Your Honor. I am objecting to this question only for the following reason. The question refers to the personal opinion of the witness about the extent of the penalty in individual cases. I never spoke about the personal opinion of the witness during the cross-examination when I discussed the individual cases. Therefore, I think that the question of the prosecutor exceeds the framework of the cross-examination.
THE PRESIDENT: The difficulty about that is that the witness, in his affidavit, did express a personal opinion. This question goes to the cause for changing his opinion that he gave in the affidavit, as I get it. He may answer.
BY MR. KING:
Q. Do you remember the rather long question that I asked you, witness?
A. Orders about the extent of the penalty could not be given to me by decision of the Court. The instructions I received from my superior authorities. My opinion, however, is that Oeschey had a large degree of influence on these instructions from my authorities.
Q. I assume then from what you have said that you are not changing your views as you expressed them in your affidavit at the bottom of page 3 and the top of page 4. I should like to read the statement to you and ask if it is not substantially, in your opinion, what you have just said. I will read it slowly so that you will be able to follow it. You say I should like to add here Dr. Schroeder's explanation. In contested cases, he said, I must submit to the questions of Oeschey concerning the degree of punishment.
A. Yes.
DR. SCHUBERT: Just a moment, witness, please wait. May it please the Court, I regret that I have to object to this question again. The witness here is being read a part from his own affidavit. That is a part to which I did not refer during the cross examination. I never asked the witness about his relationship to Dr. Schroeder or about Oeschey's relationship to Dr. Schroeder, and whatever Schroeder told the witness. I have been informed that the redirect can only refer to the questions which were put in the cross examination, and I cannot imagine that in the case of an affidavit this coule be different than another examination of a witness.
Therefore I believe that this question which was not touched upon at all during the cross examination cannot be the subject of the redirect examination.
THE PRESIDENT: He may answer the question.
MR. KING: Will you answer the question, witness?
THE PRESIDENT: He did answer it.
BY MR. KING:
Q. Your answer was "yes". Do you have anything more to add to it? Do you have anything more to add to it? Do you want to explain that answer, or is the simple affirmative answer enough?
A. I wanted to add that statements of Oeschey, which contained news about the guidance discussions, after this general statement by Schroeder meant for me indirect instructions from my superior.
Q. And Schroeder was your boss?
A. Schroeder was my superior.
MR. KING: I think that is clear. We have no more redirect, Your Honor.
THE PRESIDENT: The witness may be excused.
Adolf PAULUS, a witness, took the stand and testified as follows:
JUDGE BRAND: Will you raise your right hand and be sworn.
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.
DR. SCHUBERT: May it please the Court, we are concerned with the affidavit Paulus in Document Book 3-E, NG 633, Exhibit 180.
THE PRESIDENT: You may proceed.
EXAMINATION BY DR. SCHUBERT:
Q. Witness, please state your name and your profession.
A. Paulus, Adolf. At present I have no profession. My last position was first public prosecutor in Nuremberg.
Q. Mr. Paulus, during what time did you work in the Special Court in Nuremberg as a Prosecutor?
A. On the first of December 1942 I was appointed to the prosecution at the Special Court in Nuremberg. I worked here until I was drafted at the beginning of February 1945.
Q. Which presiding judges of the Special Court in Nuremberg did you meet, witness?
A. First until May or June 1943, Rothaug. And from then on, Oeschey. That is outside of the deputy judges, presiding judges.
Q. At the time when Rothaug had left until Oeschey became presiding judge was there not an intermediate stage and there was another presiding judge?
A. I believe that at that time the then District Court Director Ferber? was presiding judge in very many cases.
Q. Mr. Paulus, at first you give a picture of the manner of conducting a trial by the defendant Rothaug and then you say about District Court Director Oeschey, I constantly have the impression that he made efforts to imitate the manner of Rothaug. I now want to ask you, did you always have objections against the outside form of the trials, the manner of conducting them by Oeschey or were there also cases in which the defendant Oeschey conducted the trial in every respect in a decent manner and in accordance with the facts?
A. Of course there were also trials in which I had no objections to the outside form of conducting the trial by Oeschey.
Q. Witness, if such excesses occurred was this mainly during the examination of the defendant or also when the witnesses were examined?
A. In most cases, or by far the most cases, it must have been during the examination of the defendant. However, I also remember that at least in some cases it also occurred during the examination of witnesses that such incidents which, in my opinion, could be described as excesses occurred.
Q. Did you have the impression that through those excesses, as you say, in any case the finding out of the facts by the Court suffered?
A. In any case I have no reason for saying that when such incidents occurred the facts were found out less thoroughly than it happened in other cases.
Q. Were cases where Oeschey was the presiding judge tried thoroughly and exhaustively?
A. I never gained the impression that in trying to find out the facts Oeschey missed anything and if in the opinion of the other persons Who took part in the trial it should have occurred, that some question was not clarified adequately, then, there were associate judges and prosecutors there who could make up for such a possible lack.
Q. Herr Paulus, do you remember a case of foreigners in which the court ordered investigation on the spot in order to obtain material in favor of the defendant?
A. I remember a case against a Frenchman because of plundering, I, myself was the expert working on the case, and already during the investigation by the prosecution had already made an investigation on the spot, I had become convinced that there was a plunder because according to the facts the person who committed the crime could have entered the house only through a hole in the wall which had resulted due to air raids. Therefore, I also had the intention at the beginning of the trial to ask for the death penalty which was mandatory for plundering. During the examination of the defendant, doubts occurred on the part of the court as to whether the person who committed the crime could not have entered the house in another way, that is by a regular opening. As the person who had made the investigation on the spot, at that time I could not do away with these doubts, and, therefore, the court ordered another investigation on the spot. This resulted in the fact that the statements of the defendant that he had entered the house by way of the door could not be disproved. I therefore refrained my original opinion that it was a plunder and only requested a penalty for theft, or serious theft. The court only gave a prison sentence because of an offense, but I cannot state any more who was the presiding judge. I also don't know the name of the defendant any more.
Q. May the name of the defendant have been Camille Midi?
A. As far as I remember, he was a Frenchman; therefore, that possibility exists.