II. ARRAIGNMENT

Extracts from the official transcript of Military Tribunal III in the matter of the United States of America vs. Josef Altstoetter, et al., defendants, sitting at Nuernberg, Germany, on 17 February 1947, 0930, Justice Carrington T. Marshall, presiding.[7]

The Marshal: Persons in the courtroom will please find their seats.

The Honorable, the Judges of Military Tribunal III.

Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.

There will be order in the courtroom.

Presiding Judge Marshall: The Tribunal will now proceed with the arraignment of the defendants in Case 3 pending before this Tribunal.

The Secretary General will call the names of the defendants.

The Secretary General: Josef Altstoetter, Wilhelm von Ammon, Paul Barnickel, Hermann Cuhorst, Karl Engert, Guenther Joel, Herbert Klemm, Ernst Lautz, Wolfgang Mettgenberg, Guenther Nebelung, Rudolf Oeschey, Hans Petersen, Oswald Rothaug, Curt Rothenberger, Franz Schlegelberger.

Mr. LaFollette: May it please your Honor, all the defendants are present. I wish to advise the members of this Tribunal that subsequent to the filing of the indictment in this case the defendant therein named Carl Westphal died, and he died while in the custody of the Marshal which may be confirmed by the Tribunal.[8]

Presiding Judge Marshall: It will be so entered in the record.

Counsel for the prosecution will proceed with the arraignments of the defendants.

[Here Mr. LaFollette read the indictment. See pp. 15–26.]

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Presiding Judge Marshall: The microphone will now be placed in front of the defendant Josef Altstoetter.

I shall now call upon all defendants to plead guilty or not guilty to the charges against them. Each defendant, as his name is called, will stand and speak clearly into the microphone.

At this time there will be no arguments, speeches, or discussions of any kind. Each defendant will simply plead guilty or not guilty to the offenses with which he is charged by this indictment.

Josef Altstoetter, are you represented by counsel before this Tribunal?

Defendant Altstoetter: I do not consider myself guilty.

Presiding Judge Marshall: The question is, are you represented by counsel before this Tribunal?

Defendant Altstoetter: Yes, I am represented by counsel.

Presiding Judge Marshall: How do you plead to the charges and specifications and each thereof set forth in the indictment against you, guilty or not guilty?

Defendant Altstoetter: I consider myself not guilty.

Presiding Judge Marshall: You may be seated.

[At this point the other defendants were asked similar questions. Each defendant indicated that he was represented by counsel, and each pleaded “Not guilty” to the charges of the indictment against him.]

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Presiding Judge Marshall: The pleas of the defendants will be entered by the Secretary General in the records of the Tribunal.

Military Tribunal will be at recess until Wednesday, 5 March 1947, at 9:30 o’clock a.m., at which time the trial of Case 3 will begin.

The Marshal: Military Tribunal III will be at recess until Wednesday, 5 March 1947, at 9:30 o’clock.

Dr. Schilf: I wish to make a request. I wish to ask the prosecution, in due time before the opening of the trial, to make their document books available to the defendants and to their counsel.

We make the following objections against the indictment: Ordinance No. 7, by the Military Government, says, in article IV under paragraph (a), that the indictment is to set forth the counts simply, distinctly, and in sufficient detail, and that the defendants should be instructed on the details of the charges made against them.

The defendants, or rather the two clients I represent, failed to find certain details in the indictment. With the exception of possibly the charge in regard to the Night and Fog Decree, no legal decree is referred to which could possibly be considered illegal.

In that manner the preparation by the defendants is frustrated because the indictment, according to our opinion, is conceivedmuch too generally, and the requirements of article IV of Ordinance No. 7 just referred to by me are not fulfilled. This could be remedied in that the prosecution, in due time, before the opening of the trial, makes the document books available to the defense counsel.

That is what I should like to ask for on behalf of my two clients.

Presiding Judge Marshall: Does the prosecution desire to make any comment at this time upon the point raised?

Mr. LaFollette: Unfortunately, and it is no fault of the defendants’ counsel, I didn’t hear what was coming through the phones. As I understand two points were raised—the fact that no documents were filed with defendants’ counsel in their room. Those will be furnished. Secondly, with reference to the objection raised to the indictment, I believe the rules require the objections should be reduced to writing. In any event I think it would serve the purpose if the objection to the indictment was reduced to writing, and then Your Honors would pick such time as you see fit to dispose of the motion, and we can argue it at that time more intelligently than we could at this moment. I do not desire to take advantage of technicalities, but I hope the record will note that defense counsel have duly raised the objection, and at such time as it is to be disposed of it will be reduced to writing before it is disposed of. I think it only reasonable that it be reduced to writing.

Presiding Judge Marshall: The defendants’ counsel will be required to reduce certain matters to writing, as requested by the prosecution, and it is possible that we will want to dispose of that matter between now and 5 March if it is agreeable to counsel on both sides.

Dr. Koessl: I have already submitted the same request in writing.

Mr. LaFollette: If that has been submitted in writing I think Your Honors have indicated we may, within a reasonable time after you have seen it, wish to dispose of that prior to 5 March, or on 5 March, whichever Your Honors shall see fit. That will be satisfactory to us.

Presiding Judge Marshall: I suggest, in that connection, after you have seen the written matter that you advise the Tribunal when we are not in session as to your wishes.

Mr. LaFollette: I shall be glad to do that, Judge. I assume we will wait and take not only the objections on behalf of the defendant Rothaug, but also any objections which have been filed by counsel on behalf of any other defendants. After they have been submitted and I have had an opportunity to see them, I will conferwith defense counsel, and perhaps after that we will have time to confer with the Court as to the time of disposition.

Presiding Judge Marshall: Are there any other counsel representing defendants who desire to present any matters at this time? If not, the order for recess will stand.

(The Tribunal adjourned until 0930 hours, 5 March 1947.)

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