Thereupon the Ministry answered, in order to avoid a divergence between the application or the demand and the sentence in the presence of such high Party functionaries, the Prosecutor should, in the final analysis, and in the name of God, ask for the death penalty, if -- and this is very important -- the Oberpraesident Herr Doebig should not succeed in the last moment to avoid that Rothaug carries out his intention.
Q. Witness, at what stage in Grasser's trial did this direction from the Ministry of Justice in Berlin reach Nuremberg concerning the necessity of asking for a death penalty to avoid a divergence? At what point in the trial did that arrive? Before the sentence?
A. Yes, before the sentence was pronounced, even before the plea of the Prosecutor, because only in that way was the Prosecutor empowered to ask for the death penalty.
Q. Witness would you please explain to us how it would be possible for the Ministry in Berlin to know that there would be any divergence before the verdict was pronounced if a death penalty was not asked for? Isn't that assuming the very point to be tried? How do you account for that?
A. The competent referent of the man in charge of the Prosecutor's office, Oberstaatsanwalt Engert, Chief Public Prosecutor Engert, told me already at that time and repeatedly later on, the connection, the circumstances of the case, so that I can explain the accompanying circumstances to you. Herr Engert, a member of the Special Court for many, many years, until August 1941, knew from his own experience that Rothaug could not be prevented from carrying out the intention which he had already told in this session and in the telephone conversation the competent department chiefs in Berlin. He pointed out that he himself was present as an observer at the session of Grasser's case, that he was observing the trial, the session, and that the presiding judge, Rothaug, as I have already stated here, in the sharpest terms expressed to Grasser that at the end of the session, as he said literally, his head would line in front of his feet.
Q. Witness, you have just said that during the course of Grasser's trial Rothaug told Grasser that his head would soon lie at his feet; is that correct?
A. Yes.
Q. At what point, witness, at what point in time during the trial did Rothaug tell Grasser that? Was it before the sentence, before the verdict?
A. That was already during the examination of the defendant at the very beginning of the session Rothaug -
Q. Witness, just to get it clear in my own mind. Rothaug told the defendant Grasser that at the very beginning of the trial?
A. Yes, yes, yes. When he was examined as a defendant.
Q. Dr. Ferber, you have said that Grasser was sentenced to death. Was he, in fact, executed?
A. Yes, contrary to all expectations, the Ministry did not pardon Grasser.
Q. Who among you, Rothaug, yourself, or the other associate judges on your court, was responsible for preparing the written judgment and verdict in the Grasser case?
A. The written copy of the -- the writing of the sentence in the case Grasser was as follows: The third judge was, in addition to Rothaug and myself, Herr Gross. Herr Gross had been in sessions of the Special Court only very infrequently, very seldom. Above all, he was not sufficiently familiar with the fact that Rothaug was interested in having in the written sentence to read again those things which had been said as the reasoning of the opinion during the session in regard to philosophical matters and -
Q. Witness, may I interrupt just one moment, please? If you can answer me very briefly just with one word or so on this particular question, I would appreciate it. Which judge on the bench of the Nuremberg Special Court wrote the verdict?
A. The first draft was written by Mr. Gross. Rothaug gave Gross tho draft as being essentially not usable. Ho returned it to him and ordered him to let me personally know that I would have to rewrite tho sentence of Gross by using the corrections made by Rothaug.
Q. Witness -- witness, excuse me. You say that when Rothaug returned the draft of tho opinion that it had corrections made by him on it?
Q. Yes. Yes, Herr Gross wrote a draft of the opinion and submitted it to Rothaug, and that caused Rothaug to rewrite or write anew important parts of the Gross decision.
Q. Witness, you have just said that Rothaug in the Grasser case rewrote a considerable portion of the opinion; is that true?
A. Yes, yes.
Q. Was it customary with Rothaug to correct and rewrite opinions written by other members on the bench? Did he do that frequently or not?
A. Well, Rothaug did that already at a time when I myself was not yet a judge at the Special Court. A judge by the name of Seiffert once, with tears in his eyes, complained to the President of the District Court that Rothaug had corrected an opinion that he had written in such a manner that he was ashamed in front of the personnel of the chancellery. And this habit Rothaug maintained until the very end.
Q. Witness, can you very briefly describe the manner or the approach used by Rothaug to correct and rewrite opinions? What did he find wrong with them in most cases?
A From the description of the opposite, you will see more easily. What corrections were considered important by him will became more clear. The statement of the facts of the case were relatively easy to write down for Rothaug. When it came to legal reasons, legal foundations, there was more difficulty. When the application of a certain law to the facts was concerned, it was difficult, as in the Grasser case.
According to the Public Enemy decree; essentially, the field office correction had to do with the extent of the penalty, the opinion on which the penalty was based. I am thinking especially of the law against habitual criminals and sexual criminals.
Q Witness -
THE PRESIDENT: Mr. Wooleyhan, we will take the recess at this time for 15 minutes.
THE MARSHAL: The Tribunal is in recess for 15 minutes.
(A short recess was taken).
THE MARSHAL: The Tribunal is again in session.
BY MR. WOOLEYHAN:
Q. Dr. Feber, returning for a moment to refresh my recollection to the scene in the court room during the Grasser trial - you have stated that the courtroom where Grasser was tried was filled. You also stated that in the audience there was a number of high Party officials and SD members. Is that so?
A. Yes, all that is correct.
Q. Then, witness, do you remember whether or not, during the course of that trial, did the presiding judge Rothaug address himself at any time to that audience?
A. Rothaug during the session did not directly address the audience but his words to the defendant Grasser were of such a political nature and had such political motives that they represented manifestations for the Party.
Q. Did he make such statements that you have just described frequently or infrequently during the course of the trial?
A. In the course of the trial of Grasser many such addresses, such as I would like to mention so that you can understand the trial better, and so you can also understand the verdict, were in fact made. First of all, Rothaug told the defendant Grasser that he had unheard-of luck because the penal chamber of the Munich Oberlandesgericht a few years ago had only pronounced a prison sentence. In that connection Rothaug Quoted to Grasser that at that time things were omitted which "we can make up for now with you". With that he expressed the fact that in connection with his resistance to the principles of the NSDAP - that was that. He had merited the death sentence, for in connection with that statement that Munich had definitely pronounced a merciful sentence, Rothaug said to Grasser, "Whether you live or do not live, that doesn't matter to the German nation. But what is important is that the German nation lives." And he had used this other sentence for the Untermaurung in saying, "You realize, Grasser, when we talk that over today." Grasser looked a little bit surprised.
He had to be surprised because shortly before he had been told to go to a different courtroom and he had also received the appointment of his counsel. Rothaug then put the lid on it all by saying to Grasser, "At the end of this session your head will be at your feet." That is literally what he said.
Q. Tell us, witness, did the defense counsel which you have just mentioned having been appointed for Grasser - did this defense counsel intervene on Grasser's behalf at any time during the trial?
A. The defense counsel who was at that tire appointed - I think it was Justizrat Kuehn. He was sitting at his seat at the Defense Counsel. He himself had the Honorable Insignia of the NSDAP. In his immediate neighborhood sat the Gauleiter. What could the defense counsel in this circumstance say to Rothaug? He accepted it in the same manner in which other people in the courtroom accepted it. And at the end he pleaded his defense, and during the course of it pointed out that Grasser's behavior did perhaps *** merit the death sentence after all.
Q. After the trial was finished, did you attend the discussion of the verdict in judicial chambers with the other judges before sentence was pronounced?
A. As I have described it, the application by the public prosecutor was achieved with great effort, and above that I was partly informed. We did know that chief public prosecutor Engert by the public was in telephone contact with the public prosecutor's office.
Q. Witness, I don't believe you understand my question. I will try to make it more clear. After the prosecution and defense were finished with their respective parts of the case, did you and the other judges, including Rothaug, retire to chambers to discuss what verdict you would impose?
A. Yes.
Q. Well, witness, would you please describe for us what occurred in chambers during the discussions between you and the other judges concerning the verdict to be passed in the Grasser case? What happened?
A. When we had retired for consultation, something happened which I believe until then must have been unique. That is, the Oberlandesgerichtspraesident, who was present himself, actually went to the chamber in which we were holding our discussions. We were taken quite aback by this.
Q. Witness, may I interrupt? You have said that the Oberlandesgerichtspraesident went into the chambers while you and Rothaug and the other judge were discussing the verdict. Was that men that you have just mentioned - was he by any chance Rothaug's superior, Oberlandesgerichtspraesident Doebig?
A. It was the chief of the Oberlandesgericht at the time, and the supreme chief of the justice authorities in Nuernberg.
Q. Continue, please.
A. This Oberpresident entered the room and began to speak --
DR. DOETZER (Counsel for the defendant Nebelung): May it please the Tribunal. At this moment it seems necessary and fair to me to point out that the witness is breaking the secrecy of consultation which is an obligation to him. I do not know whether the witness realizes that he is under an obligation to make a statement on this discussion which he is obliged to secrecy --
THE PRESIDENT: Objection will be overruled.
Q You may continue please.
A Oberpresident Doebig said that as far as the ministry was concerned it was considered important that the extreme consequence for Grasser should not be drawn. In particular it was -
Q May I interrupt you please? As I understood that through the phone, you said that Doebig told Rothaug as his superior, that the extreme penalty for Grasser should not be imposed, or something to that effect. I am wondering if you would care to restate that a little more clearly. Do you mean by that statement that Rothaug was told by Doebig that the death sentence for Grasser should not be imposed; is that what you mean?
A No, no, I can not say that and I can not say that because Doebig in this connection did not stand in the relation of a superior to Rothaug. As Oberpresident he could not interfere with the final result of our discussions, but he fulfilled a commission of the ministry to exercise his whole influence personally so that Rothaug above all should desist from applying the people's enemy order in its extreme consequence to this case.
Q May I interrupt? That, I believe, was not people's enemy order but the law against public enemies; isn't that correct?
A The law against public enemies.
Q Dr. Ferber, one further thing before you proceed with the description of what happened in chambers. Quite apart from the fact of whether or not Doebig was or was not Rothaug's superior, you just said that he was not - quite apart from that did you not just say a moment ago that Doebig came into the chamber and said to Rothaug that the death penalty should not be imposed on Grasser? Is that true?
A Yes, yes.
Q Continue.
A This discussion made it necessary to refer for writings. This literature was referred to, but all objections which we discussed in a rather more academic way, ended up with Rothaug saying to Doebig quite suddenly and abruptly, "Well then, Herr Oberpresident, the political responsibility for this verdict, that is my responsibility in the last resort", and with that Doebig gave up his attempt to intervene and left the room.
Q Witness, one moment please, before you go any further. In your presence at that time that you are now talking about, did Doebig give Rothaug any reasons why he thought the death sentence should not be imposed on Grasser? Did Doebig give any reasons for that? If so, what were they?
A Well, the Oberpresident during these talks, in fa.ct, supported the same thing which Gross was supposed to write in the verdict and by me and previously by the prosecution itself had been used as an argument. That was that really it was only a case of a malicious act and that to apply the public enemies decree under paragraph 4 to make possible the death sentence, was meant to do violence to the law, and Herr Doebig pointed out that the Oberreichsanwalt himself who had dealt with the case, to whom the case had been submitted, that he had sent it back as not falling within his competency.
Q Do you remember any further details of the negotiations and argument which must have taken place between you and Rothaug and the other judge before you arrived at a verdict in the Grasser case?
A When Herr Doebig had left the room, as usual first of all, a cannonade of abuse on the part of Rothaug against Doebig was launched. Partly this was personal abuse, for the two men didn't care very much for each other, and partly it was a factual abuse because Herr Rothaug as far as Doebig's arguments were concerned, did not agree.
He did not like them. In this connection it must be mentioned that during the same year, 1942, the Oldenburg justice scandal had taken place. The Reichstag of greater Germany had issued a law in 1942 and supported by those events it was definitely water under Herr Rothaug's mill to say to what we came if we look at this administration for an example and where we get to if sound political instincts are followed, and that was meant to mean that the state exigencies in such a case demanded the extreme consequence for the offender, and phrases which I will outline briefly, such as we must see to it that 1916 is not repeated.
Q. One moment, witness. Will you make it clear to me -- I am a little dubious -- who said these statements that you are now describing?
A. Rothaug. Rothaug.
Q. Continue.
A. Rothaug said it is a state exigency, as far as a Communist is concerned, to see to it that he who is obviously not a Communist all by himself has an opportunity to show himself as showpiece, and a word by Adolf Hitler was, after all I feel, miscalled by providence to give the weak a portion of that at fault, and Rothaug did that in this case and in similar cases by demanding that it was necessary in the interest of the people that such a political enemy who comes forward and shows his claws, that he be made harmless.
Finally, Rothaug's question to the others present at the discussion was, "There is only one question here. How would the Fuehrer decide?" Now, you must just imagine what a newcomer (Neuling) was to say after that, and the verdict which Gross did write after that was, according to Rothaug, the work of a political ignoramus.
Q. Dr. Ferber, after the verdict in the Grasser case was pronounced, at that time or at any time since, have you ever thought in your own mind that you approved of it?
A. I did not approve the Grasser verdict, and on the basis of the telephone conversation between Oberstaatsanwalt and the ministry we were entitled to expect that the ministry by a pardon would at least make good what here by brutal political fanaticism had happened.
The ministry did not pardon Grasser.
Q. Dr. Ferber, let me depart from this case and take up something different. In your capacity as associate judge in the Nurmberg Special Court after 1940, do you remember a case, a criminal case against a Jew here in Nurnberg named Lew Katzenberger for racial pollution? Do you remember such a case.?
A. Very well. Very well.
Q. Where were you in an official capacity when this case came to trial?
A. During that trial against Katzenberger himself I was an associate judge just as in the Grasser case.
Q. Dr. Ferber, did you sit on the bench through all of the sessions during which that case was tried?
A. I have not quite understood this question.
Q. Let me make it more clear. Did you sit as associate judge during the trial of Katzenberger?
A. Yes, yes.
Q. Then you are in a position, to the extent of your memory, to tell us the extent and nature of the prosecution's evidence against Katzenberger, are you not?
A. Yes.
Q. Would you then, Dr. Ferber, describe briefly what was the evidence against Katzenberger that the prosecution introduced?
A. The prosecution with the Nurnberg Landgericht District Court in the summer of 1941, with me as the presiding judge at the time of the penal chamber, the prosecution against Katzenberger alone under suspicion of racial pollution, committed with the woman photographer Frau Seiler, and decision had to be made and also a complaint about imprisonment which Katzenberger had made at that time had to be dealt with.
Q. Witness, may I interrupt you a moment. At the time, as you have just stated, when Katzenberger was indicted for racial pollution before the Nurnberg District Court, was his companion, Irene Seiler, also indicted for any crime at that time?
A. No, no.
Q. Continue.
A. Only Katzenberger himself; I received an indictment against Herr Katzenberger who was charged with having committed racial pollution evidence stated by witnesses, among others, statements by Irene Seiler, just as other statements by witnesses, and furthermore complaint about imprisonment by Herr Katzenberger which had actually been made by defense counsel.
Q. Will you describe, Dr. Feber, how it happened that after having been indicted before the Nurnberg District Court for racial pollution, as we know from evidence that has been introduced in this court in the past, Katzenberger eventually was indicted by the Nurnberg Special Court; wasn't he?
A. Yes.
Q. Well then, can you explain how and why the case was transferred from the District Court to the Special Court?
A. The Public Prosecutor, who was dealing with the case, his name was Marke, on the same day on which I, as the presiding judge of the penal chamber, had received the indictment, in the afternoon asked for the document and files back. In reply to my question why, he wanted all the documents, including the indictment, to be returned to him.
He said he was doing it at the request of Oberstaatsanwalt Schroeder, who, together with Rothaug, had a discussion, and this was demanded by the president of the Special Court that the penal chamber should send the case back so that the indictment should be made out anew at the Special Court.
Q. Dr. Feber, Schroeder, whom you just mentioned a moment ago, is that the same Karl Schroeder that you described earlier this afternoon?
A. Yes, yes.
Q. You have just stated, Dr. Feber, that the Katzenberger indictment was transferred from the District Court to the Special Court, pursuant to a directive jointly engaged in and issued by Rothaug and Schroeder; is that true?
A. Yes, yes.
Q. Why did Rothaug take any particular interest in the Katzenberger case and want it transferred?
A. Naturally, I asked Dr. Marke what were the motives for which the case was taken away from me at the penal chamber and transferred to the Special Court. Marke replied that this was due, the whole occurrence had arisen because of a demand of Rothaug who had wanted Katzenberger indicted on the public enemy law, paragraph 4.
Q. Just a moment, you have just stated that according to Marke, Rothaug wanted Katzenberger indicted under the law against public enemies; is that correct?
A. Yes, yes.
Q. Is it also correct that under that law against public enemies a death penalty was possible; is that true?
A. It was possible under paragraph 4, under the law against public enemies.
Q. It was possible?
A. Yes, it was possible.
Q. One further thing, Dr. Feber, under the statute for violation of which Katzenberger had been originally indicted at the District Court which, as you have said, was the statute against racial pollution, was the death penalty possible.?
A. Oh, no. Under that law, passed in December, 1935, the death penalty was not provided.
Q. Dr. Feber, will you now describe, after Katzenberger was transferred to the District Court, what happened to the person you mentioned, Irene Seiler?
A. For the first time it was, I heard this was in about December 1941, that Rothaug had investigations extended by the Prosecution for Frau Seiler, and that for perjury in the pre-trial investigation, under investigating Judge Groben, had admitted under oath before she made her statement, Seiler under oath had admitted that she occasionally had sat on Herr Katzenberger's lap; that they had kissed each other; but she had denied sexual intercourse.
Q. Dr. Feber, you say that in the police investigation, Irene Seiler, under oath, denied any sexual intercourse with the man Katzenberger?
A. Yes, she denied that.
Q. Did Irene Seiler later become indicted to appear before the Special Court?
A. Yes.
Q. One further question; may I interrupt again. The results of this police investigation in which Seiler, under oath, denied having had intercourse with Katzenberger, before Irene Seiler was indicted, did Rothaug, within your knowledge, see, read, or hear about the results of what Seiler said in that police investigation?
A. Yes.
Q. Make sure, witness; did Rothaug see the results of that police investigation before Seiler was indicted?
A. One moment; during the first presentation in July, 1941, the actual records of Frau Seiler at that time were already in the files and when these files were removed from the penal chamber with the intention of a later indictment before the Special Court, Marke, the prosecutor, handed these files to Rothaug for his scrutiny.
Q. Then, you state that insofar as you know and observed, Rothaug saw the police investigation report in which Seiler, under oath, denied having sexual intercourse with Katzenberger; he saw that report before Seiler was indicted; is that true?
A. Before Frau Seiler had been indicted at all for perjury -
Q. Just a moment, you anticipated my next question. I was going to ask you, witness, what was the charge for which Seiler was then indicted; you say it was perjury.
A. The witness was indicted before the Special Court for perjury.
Q. Just one moment, witness. In all your experience, first as prosecutor before the Special Court, and later as associate justice of the Special Court in Nurnberg, did you ever know of a case, other than that of Irene Seiler, where a person was indicted to appear before the Special Court only for a crime of perjury; did it ever happen?
A. No, no.
Q. The next question: Witness, how and why was the criminal proceeding against Irene Seiler for perjury joined with the criminal action against Katzenberger for a violation of the public enemy statute; how and why did that joinder take place; was that the usual procedure?
A. That was altogether unusual; it would have been in accordance with the normal and custom laws to deal with the trial against Katzenberger for racial pollution be delaying it until the penal chamber had dealt with it, or had decided the perjury proceedings against Irene Seiler. It is in accordance with custom, for example, in the case of divorce proceedings, when the proceedings are interrupted if it is said that a witness has spoken the untruth, under oath, and why in the case of Katzenberger and Seiler, for it would seem different.
Q. Dr. Feber, you have stated in the past here that you sat on the bench as an associate judge throughout the Grasser trial and throughout the Katzenberger trial; is that so?
A. Yes.
Q. Did Rothaug address the audience in the Katzenberger case in a manner at all similar to that in the Grasser case?
A. The manner in which the Katzenberger case was dealt with exceeded in my experience anything possible. In court room 600, to which admission was gained or obtained by tickets, and a considerable number of tickets were issued via party offices from where they were distributed. It was quite unusual that such an important case, anywhere as important as Rothaug made it, that such a case should be heard without the penal files having been submitted previously to the Reich Ministry of Justice. The summons for the trial dated $ and 6 March, 1942; and the date of the trial was 13 and 14 March, 1942.
There was no opportunity for the justice administration to play any part in this case. On the other hand, however, Rothaug had altogether succeeded in getting a man like the Reichsinspector of the NSDAP to attend the trial.
Q Witness. Dr. Ferber, as you sat on the bench in the courtroom upstairs which you have designated as being the one in which the Katzenberger trial occurred, did you at any time during the trial look out at the audience?
A Yes, naturally I did look at the audience.
Q You did. Would you now please tell us if you noticed whether or not -- whether or not you noticed any activities in the audience?
A In the first and second rows to the right of the room, towards the door here -- that's how I looked at it -- there sat some persons in uniform whom I personally recognized as members of the SD; in the year 1942 they were a field-gray uniform and on tho collar an SS insignia.
Q Dr. Ferber, was the attendance at Special Court trials in Nurnberg by SD personnel a usual thing in your experience?
A The attendance of SD men at Special Court trials was according to what I knew about Rothaug's relations with the SD and nothing unusual but it meant -- but it would mean a striking unusual occurrence to see SD at the Courtroom in uniform for normally it appeared in civilian cloths.
Q Dr. Ferber, did you see any other uniforms in tho audience?
A There were persons in Party uniform from the Kreisleitung and Gauleitung, the Kreis-leadership and the Gau-leadership. The Reichsinspector Oechsle was in civilian clothes.
Q Dr. Ferber, will you describe in as much detail as you can remember tho remarks addressed to this audience which you have already stated occurred? Can you describe in detail the remarks made to the audience by Rothaug?
A The remarks which the Presiding judge Rothaug made during the Katzenberger trial must be differentiated as remarks during the Katzenberger trial and during tho examination of Frau Seiler and during the examination of the witnesses -- there was a difference to be noticed between these remarks.
Q Dr. Ferber, what was this difference between Rothaug's manner of addressing tho witnesses and his manner in addressing the defendants?
A The difference which was most striking was this: the witnesses, one of the Seiler, were paid a further amount of tribute because they concerned Frau Seiler's association with Katzenberger -- they had been forced on them and had further the courage to say that to the authorities so that the shameful activity would come to an end.
Q Dr. Ferber, these witnesses which you have just described, were they prosecution witnesses or were they defense witnesses?
A They were mainly witnesses for the prosecution only they were in the courtroom. The few witnesses which Seiler had sent for herself played a very little part.
Q Can you describe, Dr. Ferber, in as much detail as you can remember any further incidents connection with Rothaug's examination of the witnesses in the Katzenberger case?
AAs far as only the examination of the witnesses is concerned, not the examination of the defendant, two statements which were put together were of particular importance. In one case a member of the audience during the trial came forth to the woman.
She had suddenly remembered that the co-defendant Frau Seiler years ago had needed the help of a Jewish attorney-at-law and then she had been given some facilities and that indicated that Frau Seiler for years in some way had Jewish associates. This was secondary and an insignificant matter and it didn't say a thing about the matter but the woman had to say that to here because she had had the courage to say something. The other statement which I remember that is a particular one is this: Witness, and that's the witness who admitted to be the one by his statements to the political police authorities said the man here, this man had hymns of praise shouted over him.
Q Witness, who sang this hymn of praise?
A The Presiding Judge, Herr Rothaug.
Q Witness, in your personal opinion, having sat on the bench throughout the Katzenberger trial and having seen all of the evidence and having come to a verdict, were you satisfied at that time or have you ever been satisfied since that the actual crime of sexual intercourse with the Seiler woman was proved by the prosecution against Katzenberger?
A The verdict never satisfied and could not satisfy.
Q Excuse me, witness, may I interrupt? You say the verdict did not satisfy you and never has. Before you continue will you answer "yes" or "no"? In your personal opinion was the crime of sexual intercourse for which Katzenberger was sentenced to death ever proved to your satisfaction?
A No.
Q Why?
A Why? The question which during the Katzenberger trial had to be decided were essentially two questions; Can one believe Frau Seiler or can one not believe her?
The other question: this one does believe her. In what decision has Frau Seiler admitted and what Herr Katzenberger had not disputed. What had to be decided here essentially was two questions: Can one believe Frau Seiler? Can one not believe her? If one takes Frau Seiler's word for the truth and what Herr Katzenberger does not after all dispute, can one assume that as sufficient to take it that an attempted or completed race pollution has occurred under law. That is partly of a factual and partly of a legal nature.