Q. And, you say, Dr. Ferber, that so far as these two fundamental questions are concerned they never were answered by the introduction of evidence at the trial to prove the act for which Katzenberger was convicted; is that true?
A. I must explain the question in this way: An immediate witness of the action of Katzenberger in the definite sexual intercourse did not exist. The question was that cf psychological proof which Rothaug had wanted, and concerning the experience of life, was sufficient.
Q. One moment, witness, would you please explain to the Court what was this psychological-evidence that Rothaug about -- what is psyche logical evidence?
A. Psychological evidence in this connection has to be evaluated or regarded as follows: Frau Seiler admitted, not occasionally, but for years, to have had friendly associations with Herr Katzenberger; that she had received presents of money; that she had received flour; that she had received cigarettes; that Katzenberger visited her; that they kissed each other; and that she had sat on Katzenberger's lap.
Q. Is that what Rothaug means by Psychological evidence?
A. The psychological evidence was -- the experience of live does not allow any other conclusion; that psychologically speaking, it is not imaginable, nothing is imaginable, but in view of these admissions, further relations, on a sexual basis, must be deduced; that is the psychological evidence.
Q. Now Dr. Ferber, if we may return to my original question which we interrupted -
THE PRESIDENT: Mr. Wooleyhan, let me ask the witness a question. When you refer to psychological evidence, do you really mean circumstantial evidence?
DR. FERBER: Yes, that is included, they are included.
THE PRESIDENT: But, there is something different in circumstantial evidence from what you call psychological evidence, is there?
DR. FEBER: There is a difference in so far as an experience of life-- in the case of Katzenberger, it was particularly offensive, it was -- he said, that a certain amount of understanding the psychology of the Jew as such -- that an understanding of racial problems as such is needed so that behind the future circumstances, which were offered, that behind that one would lock at further sexual relations.
BY MR. WOOLEYHAN:
Q With regard to the question the Court just put to you, Dr. Ferber, could you have during the period of time we talked about here, 1942, could you have the so-called psychological evidence in any other kind of a case, except one involving the racial problem?
A In many trials I cooperated, for example, at an arson case in which psychological evidence was involved -- that psychological element was used only once and in such a definite way, and in the foreground--
Q. Witness, let us now return to a question which we have not yet answered.
A. Yes.
Q. You stated before that so far as you were concerned, the act of sexual intercourse in the Katzenberger case, for which Katzenberger was sentenced to death, was never proved to your satisfaction; is that so?
A. Yes, I personally had this conclusion; that I did not draw this conclusion by sexual intercourse, had actually taken place. I and the other gentlemen did not agree on this point.
Q. Dr. Ferber, in the Katzenberger case, was there any other proved offense warranting a death penalty, assuming that the act cf sexual intercourse was not proved?
A. In the course of years, after 1935, and I was present at the general penal chamber, and several cases of racial pollu tion.
I defended these cases, some against German and some against Jews, and the Jews were naturally German nationals -
Q. Dr. Ferber, we appreciate your experience, but in the interest of time, could you confine yourself to answer this narrow question put to you. In the Katzenberger case, If you assume that the act of intercourse for which Katzenberger was indicted was not proven, then was there any other proven ground on which Katzenberger could have received the death sentence?
A No, no.
MR. WOOLEYHAN: Mr. President, I believe that completes the Prosecution's case for the day.
JUDGE BRAND: Are you excusing this witness? Are you through with the direct examination?
MR. WOOLEYHAN: We are not through with the direct examination, your Honor; we are through for the day; if the Court pleases.
THE PRESIDENT: We will suspend at this point, and adjourn until tomorrow morning at 0930.
DR. KOESEL: May it please the Tribunal, in the course of this afternoon, I was informed that my client, Rothaug is here in the prison again. I believe I understood your Honor to have said, that the Tribunal had decided that Rothaug was to return to the hospital, and I wanted to ask your Honor to make or carry out the ruling in this case, if I understood your Honor correctly.
THE PRESIDENT: We have had no knowledge of where he has been during this time and I would like to inquire now whether he has been in the hospital up to the time he came in this morning?
MR. WOOLEYHAN: Yes, he was in the hospital until he came to testify this morning and I, of course, understood your Honor directed he w as to be returned to the hospital.
THE PRESIDENT: This is the first I knew of that. That is where you desire to have him, and the Prosecution is willing for that, and the Court is willing for that.
MR LAFOLLETTE: Perhaps your Honor will direct the Marshal to return Dr. Rothaug to the hospital.
THE PRESIDENT: I have said that is the action to be taken. We will now adjourn until tomorrow morning at 0930.
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Josef Alstoetter, et al., Defendants, sitting at Nurnberg, Germany, on 1 April 1947, 0930-1630, Justice Marshall presiding.
THE MARSHAL: Persons in the courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal 3.
Military Tribunal 3 is now in session. God save the United States of American and this honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Mr. Marshal, you will please ascertain if the defendants are present.
THE MARSHAL: May it please Your Honor, all the defendants are present in the court room with the exception of defendants Rothaug and Engert, who are absent due to illness.
THE PRESIDENT: Proper notation shall be made.
DR. KOESEL (Counsel for Defendant Rothaug): May it please the Tribunal, yesterday evening I had to ascertain that the defendant Rothaug, contrary to the ruling of the Tribunal, was not at the Fuerth Hospital. Therefore I could not speak to the defendant yesterday evening. I consider that a curtailment of my activity.
THE PRESIDENT: I think that the parties are acting as rapidly as they can, so I don't think any criticism attaches to anyone. Please proceed.
MR. WOOLEYHAN: May it please the Court, before we continue with the direct examination of this witness, the Prosecution on behalf of all concerned respectfully requests a ruling by the Tribunal as to what the procedure will be for the coming weekend, that is whether or not Tribunal No. 3 will be in session Friday or Monday or what combination of those two holidays so we may know how to act and prepare for the future.
THE PRESIDENT: The Tribunal will not be in session either Friday or Monday. When we adjourn Thursday evening it will be to meet the following Tuesday morning at 9:30.
MR. WOOLEYHAN: Thank you, Your Honor.
KARL FERBER- Resumed DIRECT EXAMINATION (Continued) BY MR. WOOLEYHAN:
Q Dr. Ferber, with reference to the case you were discussing yesterday afternoon, namely the Katzenberger case, during the trial of that case what opportunity did you observe that the 68 year old defendant Katzenberger had to defend himself? Can you describe what defenses he was permitted to put in?
A The defense which the defendant Katzenberger personally was permitted was mainly destined to give an opportunity to the president to use the example of Katzenberger to tell the audience what great danger for the German nation was constituted by world Jewry as such. This was the further point in which Katzenberger was placed from the very beginning so that in his statement from the very beginning he found himself considerably curtailed. When he said that he should not constantly be addressed as a Jew, he was also a human being, the presiding judge Rothaug flung at him the words "Who is responsible for this war? And then we are to speak of human beings. World Jewry is responsible." And in that context the defendant was showered with abuse.
Q Did the presiding judge Rothaug address any of these remarks concerning world Jewry that you have just described, did he address any of those remarks to the audience as well as to the defendant Katzenberger?
A The context was this -- the defendant became the means for the purpose. The defendant was always the example. The statements were addressed to the auditorium. He also said that Katzenberger shouldn't imagine that a fairy tale in the style of Mrs. Potiphar would be believed from him here even if there still was an institution with us which considered that book -- Rothaug stated literally:
"I believe one calls this book the Bible" -- suitable literature for the German people.
Q After the Prosecution's case had been completed during the Katzenberger trial but before the final pleas and summing up by the Prosecution was there an intermission?
A The matter ended with this -- after the Landgerichtsrat was heard there was a recess.
Q Witness, during that recess was there any contact that you observed between the Prosecution and the presiding judge Rothaug?
A Yes.
Q Would you -
A That is what happened. Public Prosecutor Markl used this break, this recess, to go to the consulting room where before his plea he talked to the presiding judge Rothaug and had a discussion with him. I was able to listen to this discussion. Rothaug referred Public Prosecutor Markl to the fact that it was necessary, in view of the fact that such high Party leaders and invited guests were present, to use chosen words forgiving a reason for the indictment, chosen words, selected words, in the sense that it had to be expressed that it was a Public Prosecutor who was speaking, who in the racial question in the judgment of the point of view of the Party regarding the question of world Jewry was altogether experienced. This led to Rothaug briefly telling Public Prosecutor Markl about some points of view -- dictating to Markl some points of view. He took them down in writing, and in his plea he gave these points of view.
Q Do you mean to tell me that the presiding judge Rothaug told the Prosecutor of the penalty to demand in advance?
A In this context Rothaug repeatedly pointed out that concerning the point which he, during the whole trial, had expressed repeatedly, that is the point of Katzenberger's physical destruction, that that was a matter of course. A discussion arose between the Public Prosecutor and Rothaug only on the point to what extent the co-defendant, Frau Seiler, was to be granted extenuating circumstances for her perjury.
Q Dr. Ferber, did you ever meet Roland Freisler, President of the People's Court in Berlin, personally?
A Freisler who in 1942 was Undersecretary of State -- I did not only see him in Strassbourg but I also spoke to him.
Q When you met Freisler in Strassbourg, as you say, what did you talk about?
A The purpose of my stay at Strassbourg was a course in penal law. I had been detailed to this conference. Those who attended were introduced to Freisler. Our names were given, and also the place or court from where we had come was given. When my name was given, and it was said that I had come from Nuremberg, Undersecretary Freisler immediately spoke to me on the Katzenberger case.
Q One moment please. When you say that Freisler immediately began to talk to you about the Katzenberger case, do you remember whether it was you or Freisler that first mentioned the subject?
A I remember quite accurately that Freisler said, "Did I hear right? You came from Nurnberg" I said, "yes." Then he said, "Do you belong as a judge to the Special Court?" I said, "Yes." He said, "Do you know the Katzenberger case?" Again I said, "Yes......
Q Proceed.
A In that connection, Freisler said to me, the introduction of law against public enemies, including the Katzenberger case, was somewhat doubtful. With a smile on my face, I said at the same moment to Undersecretary Freisler, "That was also my personal view and the view of several other gentlemen in Nurnberg -- all the more so Mr. Under-Secretary; I and other participants were by the decision of the ministry surprised that the verdict was to be executed."
Q When you returned to Nurnberg from your visit to Strassburg, which you have just described, did you tell Rothaug anything concerning what Freisler had said on the Katzenberger case?
A I had all the more reason immediately to tell Rothaug about this meeting because prior to the Katzenberger trial the legal misgivings had been repeatedly put forward by me. On the first day I saw him again, I immediately told Rothaug, "Just think! I was introduced to Mr. Freisler and immediately he spoke to me about the Katzenberger case." Rothaug said, "What did he say?" I told him in the same way as I told you just now: Rothaug -- and that will remain in my memory forever -- said, with a sarcastic smile on his face, and lifted his finger and looked at me, and these were the words he spoke: "They should have dared to pardon Katzenberger!" In this connection, I had realized that during the three months of the decision concerning the execution Rothaug had not remained inactive. I should like to add -- May I? -I also reported on the event to the Generalstaatsanwalt in Nurnberg that was Public Prosecutor Engert. After the verdict in the Katzenberger case, he, within 48 hours, in reply to a request by telephone had to send the files and the verdict to Berlin to be delivered to Freisler.
When I had given Mr. Engert my account of the Strassburg meeting, he said --Freisler at the time when I handed him the files told me the same -
Q Dr. Ferber, leaving the Katzenberger case and proceeding to another subject, can you tell the Court whether or not after the beginning of war in 1939 there were many cases before the Nurnberg Special Court involving criminal proceedings against foreigners -- that is, against people who were not citizens of the Reich? That is, they were not Germans. Were there many such cases?
AAfter the complaint against Poland in the district of Oberlandesgericht Nurnberg II, Polish farm workers and in that connection infringements against the General Public Legal order occurred which regularly came before the Special Court. And in many cases-
Q What was the professional attitude of Rothaug insofar as you observed it toward defendants that were foreigners?
A Rothaug's fundamental attitude toward foreigners -- and in particular towards those from the East -- was absolutely a brutal one. Yesterday I mentioned briefly that after I had refused, he, himself, issued a Warrant of Arrest for a clergyman only because he had given a church burial to a Pole. The Pole was in every session definitely described as a human being who had been grateful that he was at all allowed to live with us. He said: "The peoples of antiquity who were victorious made the subject people their auxiliaries. It is the same again. The Pole is the Auxiliary Nation Number 1. After the campaign in the West, the Frenchmen will become the Auxiliary Nation Number 2."
Q Do you mean by "Auxiliary Nation" -
A The Hilfsvolk auxiliary. That means in analogy to Rothaug's speaking of the victorious peoples of antiquity -- people of slaves -a slave nation.
Q Under what law--or laws-- were these foreigners most frequently tried before the Nurnberg Special Court, in your experience?
A Until the law against Jews and Poles was promulgated, at the end of 1941, it was tried by Rothaug as far as possible to use the basic fact whether it was cruelty to animals or whether it was threat or whether it was an offense with assault to deal with them through the law against public enemies and thereby stamped them to a crime which merited the death sentence, and that concluded correspondence to the attention of the Reichshauptamp as Rothaug expressed that repeatedly when he said literally, "During the war death sentences would not -- must not be economical with death sentences, particularly not in the case of Poles. Adolph Hitler--" Naturally he said the Fuehrer at the time expressly declared that.
Q You mentioned a moment ago, in connection with criminal prosecutions against foreigners under the Public Enemy Law, "Cruelty to Animals." Can you remember in your experience the particulars of any case concerning cruelty to animals for which foreigners were tried and would you so describe in a case you can remember?
A I can remember two cases and I can remember them a little more accurately because the associate judges at those trials, after my trip abroad, told me about these two cases.
Q Witness, one moment. Who was the presiding judge at these two cases which you say you remember?
A The presiding judge in both cases was Rothaug. I also know the names of the associate judges. One case was concerned with a Pole in a stable. A recalcitrant animal had been touched by him with a fork at the knee joint. In fact, he had stunned it with that fork.
Q You state that this Polish farmhand pierced this farm animal in a stable with a fork. What kind of an animal was it?
A It was a cow. This animal had an infection and had a furuncle which was treated by a veterinary surgeon. The Pole was denounced by his peasant. The case was described as so-called economic sabotage, and the Pole was sentenced to death. The verdict was carried out.
Q You state that -- as I got it through the microphone -- that this Pole for stabbing the cow in the knee with the pitchfork. was denounced by his peasant. I assume you mean his farmer employer.
You say you remember another case involving cruelty to animals. Would you describe that one?
A The other case was this. A cow needed treatment by a veterinary surgeon because it had indigestion and was not inclined to eat its feed. The veterinary surgeon found that the cow had swallowed glass splinters. The verdict which I read gave as a reason that the Polish farmhand who worked on the farm had given the cow this glass with its feed; that he was found to have put these glass splinters in its food in order to damage the farmer. The Pole denied this. In considering all circumstances the court assumed that the Pole had committed this offense. He was sentenced to death. The Ministry refused to grant a pardon. The verdict was carried out.
Q In these two cases that you have just described involving farm animals, in both cf which cases Rothaug was the presiding judge as you have said, can you explain legally how the death penalty in each instance was arrived at. under the law?
A In one case I know that the death penalty was explained by the corresponding previsions of the law against Poles.
It was easy thus to find a crime meriting death sentence. I should like to say this in quotation marks -- "to construct such an offense."
Q Excuse me, witness, this phrase you have just placed within quotation marks; namely, "construct such an offense". Do you mean that an offense was created were none in fact existed?
A I want to express that if, for example, under paragraph 4 of the law against public enemies it said if the sound feelings of the people demanded, the death penalty will be pronounced. That meant that regularly, particularly against Poles, not the true sound instincts of the people decided, but the orders of the Fuehrer, Party demands, the demands of the RSHA, and that according to the attitude of Rothaug in the individual cases, once had a more brutal effect and then a somewhat less brutal effect.
Q What is your conception, while you were on the bench as a special court judge, what is your conception of the demands of the sound sentiment of the people -- the same as that of Rothaug's?
A No. In particular about the foreign cases we often had fierce debates with Rothaug. One associate judge in particular -- I mentioned that yesterday -- was definitely personally offended when he quite concretely put the question whether a Pole could not in any way comply with the conditions of the law against public enemies. Rothaug very quickly regained the upper hand when the law against Jews and Poles was presented to us.
Q You say that for the reasons you have just expressed, your conception of what the sound sentiment of the people demanded and Rothaug's conception of that same thing were different?
A Yes.
Q Did you ever have a clear definite idea of what the sound sentiment of the people demanded?
A I once briefly expressed that in one of those discussions. I pointed cut that the concept, sound sentiment of the people, omitted every ethical form of the penal law, and what did Rothaug answer?
"You stick to your Christian education." In this connection he actually said to me, "That God with the long beard, in whom you believe, does not exist."
Q Dr. Ferber, before we leave this matter cf foreigners in general, in 1942 at the Nurnberg Special Court do you remember a criminal proceeding against a foreigner named Johann Lopada?
A Yes.
Q Would you describe, insofar as you remember, your official connection with that case? Were you an associate judge on that case?
A Yes, yes.
Q Then you also probably remember that Lopada in that case had committed an assault on the wife cf a farmer for whom he worked?
A Yes, yes.
Q Would you tell us, assuming that no such law as the law against public enemies existed, what would have been Lopada's probable sentence under the penal code for having committed that assault?
A The question was in effect answered by a court because Lopada, because of that offense, by the District Court of Neumarkt was sentenced and the maximum penalty possible for an assault -- that prison sentence did not correspond to the ideas cf the authorities competent for political cases for the Special Court, Nurnberg. Following the nullity plea for canceling of the sentence by the Leipzig Senate, the case was transferred to the Special Court in Nurnberg.
Q When the Lopada case was tried for the second time by the Nurnberg Special Court the law against public enemies was applied to Lopada, was it not?
A Yes, it was.
Q One moment, please, witness. And Rothaug, as presiding judge in applying that law against public enemies achieved the death sentence, did he not?
A Yes,
Q And that death sentence was achieved because under the language of the law against public enemies the sound sense of the people demanded it; is that right?
A Yes, yes.
Q Whereas, when Lopada was first tried by the District Court in Neumarkt he was tried for simple assault under the penal code, wasn't he?
A Yes.
Q And for simple assault under the penal code in his first trial, his sentence was two Years' imprisonment; was it not?
A Yes.
Q Witness, did that sort of case wherein the sound sentiment of the people demanded a death penalty, this same sound sentiment you have just stated that you never personally understood, occur frequently under Rothaug?
A The cancellation of lenient sentences by the local court and the transfer to the Special Court was not frequently observed. I believe that the case of Lopata was the second case of that kind that was transferred to us. Rothaug from the very outset avoided that; avoided such difficulties in the evaluation because the political authorities in the whole area of Oberlandesgericht did know that Rothaug, that the Special Court of which he was in charge, that desired verdicts would be passed. For only thus can it be explained that two Polish women from another area were transferred to Rothaug's competency by the State Police because the State Police was certain that under Rothaug the desired death penalty would be pronounced; whereas in the local competent special court, at that tine under Bayreuth who evidently was mistrusted by the State Police.
Q In 1942, again with reference to the Nurnberg Special Court, do you remember a case involving a defendant named Kreisler?
A Yes.
Q Would you briefly describe what you remember from the Kreisler case?
AAll I remember about the case of Kreisler was that it was a matter of an indictment; that Kreisler had given bread to a Soviet prisoner of war during the afternoon break, at work, and that he had also occasionally talked to that Russian prisoner of war.
Q You stated the defendant Kreisler was indicted for giving bread to a Russian prisoner of war and talking to him during a break in their working day.
A Yes.
Q Do you also remember what was the sentence against Kreisler here?
AAs far as I recollect, Kreisler was forbidden association with prisoners of war, and was sentenced to a term in the penitentiary.
Q Leaving the matter of foreigners at the moment, I understand that sometime in 1942 or 1943, while he was Under Secretary in the Ministry of Justice, Dr. Curt Rothenberger visited Nurnberg; is that true?
A I remember that Rothenberger, as Under Secretary, soon after his appointment to that post, in 1942 late in the year, came to Nurnberg.
Q Well, Dr. Rothenberger was a very important person in legal circles at that time. Was a reception or meeting held in his honor?
A When the visit was mentioned, to my surprise I found that Rothaug showed an aversion against Under Secretary Rothenberger quite openly, even which in retrospect seems a little sarcastic. Particularly, he even had a photograph of Rothenberger in his pocket; he occasionally showed that photograph, not to glorify him, but rather to make him despicable, and said: Do you want to see what Herr Rothenberger, the Under Secretary, looks like? And then he pointed at the photograph, and in that connection he expressed that it was not an under secretary according to the wishes of the actual leaders of the party.
Therefore, Rothaug at the time did not condescend to attend a reception but that Boebig would alone have the honor of looking after the Under Secretary.
Q When the Under Secretary arrived, you say that only Boebig received him?
A Yes; Rothaug told us about that in the room.
Q Why did Rothaug -- did Rothaug say why he didn't attend?
A Rothaug in that context no longer expressed quite so strongly the aversion he formerly displayed toward the Administration of Justice; that according to his words he served only to provide writing paper and to provide pens and ink; the Administration of Justice had to be directed according to the will of the Fuehrer, and it was a famous word of Rothaug in those years and months: Kings reign, but they do not rule. Thereby he wanted to say that the Ministry could reign as for as the Administration was concerned, but that the actual direction of justice, the orientation of justice, that he orientated that from an entirely different point of view. It also became a famous saying at that time that frequently had to be quoted from Homer's Iliad: Only one is the king and only one is the ruler. That, of course, was only he.
Q Dr. Feber, in connection with your judicial activities on the Nurnberg Special Court, did you know Rudolf Oeschey?
A Yes, I did.
Q Would you please describe, briefly, your professional association with Oeschey; how did you happen to know him?
A I met Oeschey when in 1938 or 1939 he became associate judge at the Special Court, and I at that time was still Public Prosecutor.
Q You said yesterday, that sometime in 1942, Freisler, then President of the People's Court, came to Nurnberg to hold a session of the People's Court, which session was in fact held in this very room.
A That was a session in 1943, here in Room 581, this room.
Q You said yesterday that you attended that session.
A Yes, I was there.
Q Then why was it that Freisler, who didn't come to Nurnberg every day, and was at that time President of the People's Court, which, as we know was on a par with the Reich Supreme Court, why did he preside over a session of that court in this room when there was a much larger and better room directly upstairs; why was that?
A I still remember that at the same time in the room above us, Room 600, there was a Special Court session at which Oeschey was the presiding judge. One heard occasionally down here in Freisler's case the people in the room above as they rose and then sat down again. That can be explained because Freisler could not have Room 600 at his disposal because Oeschey did not change his session to another room.
Q. Do you mean to say that Oeschey would not make way for Freisler, the President of the Peoples Court?
A. Thinking back I state that sessions of the Peoples Court were announced and at the same time room was requested. The competent official certainly spoke to Oeschey about keeping one of the two rooms available for Room 600 as well as this room 581 were the rooms which were used for the Special Court. What must have happened is, that is, that Oeschey probably said that he would stay in 600 and that Freisler would have to be satisfied with 581.
Q. Can you explain how Oeschey could get away with a thing like that?
DR. SCHUBERT: I want to raise an objection to this question. The witness is being asked about things of which he himself has to say that he does not know the facts. He can only give us a sentence and it is not for him to give us a sentence.
THE PRESIDENT: The objection in this line of questions will be sustained.
Q. Dr. Ferber, in so far as you observed from the bench did Oeschey imitate Rothaug's judicial methods?
A. I myself only in a few cases had the opportunity as an associate judge and under Rothaug it could have hardly been ten cases. In those opportunities two or three times some wild abuse was uttered. In one case there was considerable correction of defense counsel which was in the style of Rothaug.
Q. Can you describe in any further detail, in so far as you observed it during the course of trial, Oeschey's treatment of witnesses, defendants and defense counsel?
A. I am thinking of one case which happened in this room here, 581, and which concerned a trial with a political flavor. The defense counsel was a holder of the golden hadge of honor. Herr Mueller, Herr Josef Mueller, to make it correct -- defense counsel at the time, made a motion for evidence which did not please politically. The Presiding Judge Oeschey put at the defense counsel that discussion of evidence was not desirable.