AFTERNOON SESSION (The hearing reconvened at 1330 hours, 3 April 1947.)
THE MARSHAL: Persons in the Courtroom will please find their seats.
The Tribunal is again in session.
DR. KOESSL: I ask your permission to continue with the cross examination.
KARL FERBER - Resumed CROSS EXAMINATION (Continued) BY DR. KOESSL (Counsel for defendant Rothaug):
Q. Witness, during the direct examination you mentioned that some special courts had a record and. sport spirit, that they were making efforts to pass sentences as quickly as possible in a competitive spirit. In connection with this you spoke about the case Heller. Can you still remember this case exactly, very clearly?
A. Yes.
Q. You said that at that time you took part in the preparation of the indictment?
A. No. May I say something?
Q. Yes, please do.
A. The prosecutor who worked on the indictment, his name was Spaethmann, came into my office, recited the facts of the case to me and discussed with me the written report which he had to make to the Ministry regarding a legal question; namely, whether it could be regarded as a car trap even if the person who puts the car trap is at first a passenger in this automobile.
Q. Yes. In any case you took a helpful part in this case?
A. An advisory part.
Q. Advisory. You, as far as I remember, said also that during the trial you were in the audience?
A. Yes, that is correct.
Q. Would you please describe once again briefly the crime that Heller and the co-defendant Mueller committed?
A. At the railroad station in Nurnberg both of them hailed a taxi. They let the taxi take them in the direction of Fischbach near Nurnberg, and they gave a street address in that place. The taxi driver on the way was ordered to stop suddenly by Heller on this occasion, which practically could be described as an attack. In the brawl arising from this Heller wanted somehow to get the money out of the taxi meter.
Q. I believe, witness -
MR. WOOLEYHAN: May the Court please, at the moment a question of general import arises. The trial of this case is concerned largely with case records. Now, if on cross examination, witnesses, not only this witness but in the future, are to be asked to recount again the facts of every case that was accounted for the first time in the direct examination, endless time is going to be lost.
Now I have been following our record and all that has been elicited at the moment is what is repeated word for word in the direct examination. Now, if for purposes of credibility counsel for the defense wants to test whether or not the witness actually remembers the case as well as he said he did, that best, I think, could be brought out by more pointed questions going to one or the other specific facts of the case and not requesting a parroting of the facts all over again from start to finish. The problem is serious, I believe, and could result in much delay.
THE PRESIDENT: The Tribunal feels that nothing would be gained by having the witness again narrate the facts as he narrated them in the direct examination unless defense counsel can point out that he was wrong about some of those things, and in that event his attention should be specifically directed to where he is wrong.
Now, counsel has a right, of course, to discuss those cases with the witness, not by having him repeat, but by asking some direct fact pertaining to the case which will reflect upon the conduct of these defendants.
But to repeat and ask him to repeat these things would draw this case out to great lengths.
DR. KOESSL: I shall comply with that.
Q. Witness, during the attack was there any bloodshed?
A. I believe so.
Q. You testified here only that Heller put the pistol in the driver's back or pointed the pistol at the driver?
A. As far as I remember, the driver had been wounded in the arm.
Q. Was the driver sitting in the car when he was wounded?
A. I believe so, yes.
Q. Was Heller sitting in the car when the driver was injured?
A. I believe so.
Q . Was Heller sitting behind the chauffeur, in back of the chaffeur?
A. Yes, in the car.
Q. Thus he was behind the driver in the car?
A. It was never contested that there was an automobile trap put here within the meaning of the auto trap law.
Q. All right. Do you admit the possibility that the occurrence was in brief as follows? Heller asked the taxi driver what time it was. While the taxi driver was looking at the taxi clock at the dashboard and was leaning forward a little bit because it was dark, did the one who committed the crime from the back shoot the chauffeur through both cheeks? Is that a correct representation of the case, if I may refresh your memory?
A. The attack in this form is absolutely possible.
Q. Is it furthermore possible and true that the one who committed the crime while he was being arrested also shot a policeman through the hand?
A. That is correct.
Q. Is it furthermore correct that the girl friend, of Heller, a certain Muendler, participated in the criminal action by creating the possi bility for shooting?
A. The possibility exists that in the participation in detail - I can't remember in detail.
Q. Can you furthermore remember that this case took place only a very few days after the promulgation of the auto trap law?
A. The case was immediately - after the promulgation of the auto trap decree - it was up for sentencing. However, published sentences of other special courts had already been handed down. The legal question which was concerned in this case had not yet been decided; namely, as I just said, whether the auto trap can actually be considered as such, even if the automobile driver is not, by an external obstacle, lured into a trap but if, as has already been said, the person who is planning the attack is sitting in the motor vehicle. That was the only question which still had to be considered.
Q. Is it correct that the case was such a special one because at that time the Fuehrer happened to be in Nurnberg and and heard about it?
A. Before public prosecutor Denzler, in the courtroom, I was told by Streicher that Hitler was on the way from Munich to Berlin and that he had stopped in Nurnberg and was staying at the Deutscher Hof Hotel. That gave rise, during the late hours of the afternoon, simultaneously by Streicher and Denzler, to inform Hitler about the happening.
Q. Was it not a fact that Hitler asked for the quickest serving of the indictment and the quickest possible execution of the trial, that he had demanded it personally?
A. The pressure to speed it up was exerted by Hitler upon Denzler, when the question arose that the Ministry had upon a telephonic communication stated that it should not, by telephone, state its position in regard to the clemency plea because it was an unusual legal question. This again brought about the fact that the public prosecutor, who was serving in the Ministry of Justice, had to make excuses personally to Hitler because this was said about him. Denzler told us that Hitler was supposed to have said, "You sabotaged my law."
So the speeding up could be referred to only as being the wish of Hitler, when the authority who executes the death sentence could go into action to execute the death sentence. The indictment had been prepared in time after all.
Q. Had not the setting of the date of the trial been demanded by Hitler--that is, that it be advanced?
A. According to my certain knowledge, Streicher was just as surprised that Hitler had made a stopover here as Denzler was. This visit of Hitler's was not an announced one. However, the opportunity was used, because Denzler believed at the time that he could depose a minister, namely, Guertner, because the Ministry was so stubborn in regard to the clemency question.
Q. Can you remember that the defendant Rothaug, during the noon recess, was requested by the Reich Ministry to continue the trial of this case as quickly as possible and to shorten the noon recess?
A. That is correct, because the Ministry, in these automobile trap matters, had to be informed previously by telephone about the process of the trial, and the trial had to be speeded up and carried out very quickly. I am not saying anything against that.
Q. Therefore, I would like to find out, in conclusion, as regards the speeding up, that the special court in Nurnberg was not responsible for the speedy expedition of the trial and the effort to carry it out very quickly; that is, that the special courts were not responsible for that, but that Hitler personally, and the Reich Ministry of Justice, required a quick conclusion Of the trial.
MR. WOOLEYHAN: May the Court Please, this, in the Prosecution's opinion, constitutes argument with the witness. The conclusions drawn are the conclusions of counsel for the defense and not of the witness, and we therefore object to it.
THE PRESIDENT: The objection will be over-ruled at this time.
BY DR. KOESSL:
Q. Witness, can you remember that the defendant Rothaug at that time used the occasion in order to criticize the Reich Ministry of Justice? And do you still remember why, at that time, Rothaug criticized the Reich Ministry of Justice?
A. The criticism of the Ministry referred to was due to the fact that they wanted to prepare a more careful statement of opinion in regard to the clemency plea just because of this special legal question.
Q. Was it not as follows, that Hitler, on his own initiative, was enraged about it, that the Reich Ministry of Justice was still in doubt about this legal question, and that they wanted an expert opinion of the Reich Supreme Court as to whether the law could be applied also in regard to automobile trap robberies?
A. About the matters in this connection, I am also informed in as far as Denzler, who was chief public prosecutor at the time, reported in what manner he, in the presence of Streicher, had reported this matter to Hitler. Whether Denzler was in a position to represent the peculiarities of this case well enough, that is something I don't know.
Q. Well, that is not important for us here.
A. In any case, one thing is certain. The causing of an aversion on the pert of Hitler against Guertner was at that time among the general and political intentions of the Party, and for that very reason opinions were devided in the evaluation of this over-quickly provoked decision of Hitler's. Everything was accomplished by telephone.
Q. But this decision of Hitler's, or this opinion, was not provoked by Rothaug?
A. No, it was provoked by Denzler.
JUDGE BRAND: May I interrupt? The witness has been discussing the speed with which this decision was made. I should like to ask, what was the period of time which intervened between the indictment and the execution? I don't think we have been told how much speed was shown in this case.
DR. KOESSL: Please answer the question.
THE WITNESS: Between the serving of the indictment before the Special Court and the date of the opening of the trial, there was hardly more than one day. The two defense counsel appointed by the Court had complained that due to the presence of Gauleiter Streicher and the presence of the rest of the party leadership, a more considerable unraveling of the extent of the activity regarding the personal evaluation of the defendants was not possible.
I know from a very reliable source, for example, the list of the previous sentences of the defendants, that the character witness of the defendants was obtained by teletype because the matter was so argent.
Have I answered your question?
JUDGE BRAND: No. How much time intervened between the service of the indictment and the execution of the sentence, if you know? just answer, if you can, in hours or days or weeks, whatever it is.
THE WITNESS: Do you understand by "execution of the sentence" the execution of the death sentence?
JUDGE BRAND: Yes.
THE WITNESS: About two or three days.
JUDGE BRAND: Thank you.
BY DR. KOESSL:
Q. Was the limitation actually imposed upon the defense? Was that true? Was it actually there? In your opinion, at the time, did you consider that they were limited, as they had stated?
A. Since we were concerned with two defendants who were from a territory, in regard to their birth and their residence, which was far away from Nurnberg, as regards the evaluation of the personalities of the defendants they could not fully exploit everything and show everything. As far as the action itself was concerned, this automobile trap, the facts in the case, by the admission of the two defendants of course, had already been filed without any lapse.
Q. Accordingly, if I understood you correctly, even if they had waited for a longer period nothing would have been improved; no position would have been advanced which could have become of considerable importance for the defendants? Is that correct?
A Except for one point, and that would be the reason for a pardoning, because the death sentence had been threatened absolutely, definitely.
Q For the consideration of the clemency question the Special Court, however, was no longer competent and so that, the speeding up of the trial, the presiding judge of the Special Court, Rothaug was not responsible, did not have to be held responsible for the speeding up here?
AAccording to the regulations governing clemency pleas as well, the three judges who take part in the sentence, as well as the presiding judge, for his own person, had to state their opinion in regard to the applicability of the clemency plea. Thus in this direction, to that extent, the too quick execution of this sentence meant to a certain extent after all a deterioration, or a putting in a worse position than if we had been concerned with defendants who were of origin from the area of Nurnberg, or were residents.
Q In any case, however, the competent pardoning authority, clemency authority, could eliminate this lack itself?
A Certainly, certainly.
Q Do you know who at that time was competent for a clemency question? It was 1938.
A Yes, yes, the head of the state. The head at that time had not, as during the war, divested itself of the granting of clemency pleas, in other words, Adolf Hitler.
Q And the death sentence on the co-defendant, Muendler, of Heller, was it executed on her also?
A No, no.
Q Why was the death sentence on the defendant, Muendler, why was it not executed?
A This Muendler was pregnant, and accordingly the code of trial procedure had to be considered, according to which the execution of a death sentence on a pregnant woman is not permissible.
Q The death sentence, however, could have been executed without any further difficulty after she had been delivered of the baby, is that correct, after the birth?
A Yes, certainly.
Q When was this woman pardoned?
AA few days after the execution of Heller.
Q Thus after all this woman was relieved of the worry and also the suffering about the execution and the uncertain date of it, is that correct?
A Yes.
Q How did it happen at all that the co-defendant Muendler was pregnant, how was that question brought up at all, can you remember that?
A This course of events, this event was something new to the extent that the competent Landgerichtsarzt, Dr. Kuntz, had repeatedly been approached by Streicher and Denzler. He was repeatedly asked whether it was first of all possible at such an early date of the pregnancy, period of the pregnancy, whether the pregnancy can be determined, that it was actually pregnancy, and secondly the Landgerichtsphysician, Dr. Kuntz, was interested in and asked whether for reasons of racial hygiene it would not be advisable to interrupt the pregnancy here in this case.
Q Perhaps you have forgotten something, something slipped your memory, did the defendant Rothaug, not as presiding judge at the time, on his own initiative, bring up this question, before the Lnadgerichtsphysician had been asked yet or that there had been any opinion on this, to make a decision about this question?
A That I do not know.
Q At least you admit the possibility it could have been like that?
A During the session I did not hear anything of the kind. The Landgerichtsphysician was from the very beginning present at the 3*April-A-DJG-15-3-Hoxsie (Int.
Wartenberg) session, and he was also the one who for the preparation of the session had been asked for an expert opinion and had given it during the session of the court.
Q You mentioned that the Defendant Rothaug had gone to the place of execution, had spent sometime there.
A That is correct.
Q Was there, outside of Rothaug, besides Rothaug, another judge who went to the place of execution?
A You mean whether another judge was also in Stadelheim with Rothaug? I don't know that. In any case Streicher was there, was there during the execution.
Q Is it correct that at the time the court had to go to the place of the execution in order to be able to answer a possible application for reopening of the trial?
THE PRESIDENT: It seems that the interrogation channels are not working well, and we will take a little recess at this time in order to repair them. We will recess for ten minutes.
(A recess was taken.)
THE MARSHAL: Persons in the courtroom will please find their seats.
DR. KOESSL: May it please the Court, in regard to the case we have just been discussing, I only have a very few questions. May I, after I have asked these questions, interrupt my cross examination and ask for permission to continue it on Tuesday because I only received the second part of the transcript today.
THE PRESIDENT: I am wondering if the prosecution, since defense counsel has requested that further cross examination be postponed until Tuesday, have some matters that we can take up promptly so that time won't be lost.
MR. WOOLEYHAN: Yes, Your Honor, we can proceed with further documentary evidence at any time.
THE PRESIDENT (To defense counsel): You may suspend your cross examination at your pleasure.
MR. WOOLEYHAN: Further, we have no objection in any manner whatever if the defense wishes to present this cross examination. I believe the question for which a postponement was asked was with reference to the Heller case.
THE PRESIDENT: He may speak for himself. We didn't so understand it. (To defense counsel) Do you want to suspend entirely or merely to change your line of examination at this time?
DR. KOESSL: I would like to ask your permission to put only two or three more questions to the witness and then to continue it on Tuesday.
BY DR. KOESSL:
Q As far as you remember, was the chamber which had to deal with the case, were the members of the chamber in anyway in disagreement as to how the case should be decided?
A No.
Q Was there no difference of opinion of any kind between the prosecution and the judges in the evaluation of the facts in the case?
A They were in absolute agreement.
Q I thank you.
THE PRESIDENT: The witness should be excused now until next Tuesday morning at nine-thirty o'clock. Does anyone know whether the other room is ready for us beginning next Tuesday?
MR. WOOLEYHAN: Your Honor, I believe it was announced in the daily bulletin that as of Tuesday we would reconvene in Court No. 3.
THE PRESIDENT: Then the witness may be excused now, but is to reappear in the other room next Tuesday morning at nine-thirty.
MR. WOOLEYHAN: May it please the Court, at this time, I have just sent for documents to continue the prosecution's case. It will be two or three minutes before they get here. We didn't know what time Dr. Koessl was going to finish. May we ask for a brief recess until the documents get here?
Dr. Schubert has reminded me that I should have told the Court and the defense that we will proceed with Document Book "L" as soon as it gets up here.
THE PRESIDENT: That document book should be distributed to the bench. We do not have it.
MR. WOOLEYHAN: I believe the Secretary has gone to get it for you.
THE PRESIDENT: Mr. Wooleyhan, may we inquire whether there will be one book or more books between "I" and "L"?
MR. WOOLEYHAN: I believe that Book "K" was put into evidence yesterday, was it not? And the series runs "H", "I", "K", "L".
JUDGE BRAND: No "J"?
MR. WOOLEYHAN: No "J".
JUDGE BRAND: Have you finished Book "I"?
MR. WOOLEYHAN: Mr. La Follette told me this morning that they had finished books "I" and "K". I believe the only remaining documents, to go back and recapture, as far as introducing them, are a few odds and ends in the first four books.
I have just been informed that the two books that were completed yesterday were "H" and "K" and that in Book "I", there still remains approximately half.
MR. KING: May we ask the Court to turn to page 106 in the English text; that is 109 in the German text. The Prosecution at this time will introduce the Document NG-469 which, when formally offered, will become Prosecution's Exhibit 231. This is a sworn affidavit of -
THE PRESIDENT: Did you say 106 in the English?
MR. KING: In Document Book I, page 106; I am very sorry. This is a sworn affidavit of Dr. Karl Mayer, Nurnberg, 13 Uhlandstrasse: "I, Dr. Karl Mayer, Nurnberg, 13 Uhlandstrasse, hereby declare under oath:
"I know the activities of the two presiding judges of the Special Court, Rothaug and Oeschey, because I frequently acted as defense counsel before the Special Court, and I can say that, judging from my experiences, these two gentlemen contributed decisively to the maintenance of the NSDAP's rule of force through their methods of conducting trials and through their sentences. This was shown often in the spiteful way in which they treated the defendants during trials and in the harshness of their sentences which transcended all justice measures. ROTHAUG, who in 1943 was appointed Reich Prosecutor at the People's Court, was by far the most feared judge of any Special Court and was known as such throughout the country. Even among the circles of jurists in Nurnberg, he was greatly feared. This is explained by his position of Presiding Judge of the worst Special Court in Germany, which, as I heard, pronounced the largest number of death sentences. The severe laws of the Third Reich were used by him in the most brutal manner. In cases in which there was a possibility that the defendant might be sentenced to death, he used to tell him even during the trial that he deserved a death sentence and would be "exterminated". And the sentence was carried out according to his threat. After Rothaug transferred to Berlin, there occurred no essential change, since Oeschey conducted to work in the same manner and even surpassed him in the spitefulness of his manner. I should like to mention a special case, although it did not end in a death sentence, in which Oeschey treated the defendant in such a dastardly manner that the defendant hanged him self in despair.
This was the case of von Praun, who was tried during the first month of 1944. I was then the defense counsel of the defendant.
During an air-raid on Nurnberg in August 1943, which he had observed from Ausbach von Praun has said, among other things, "Here, Goering, too, can no longer help us. Only God can help us now." These and other utterances had been reported to the Gestapo and they led to an accusation of "insidious attack on this state." The minister of Justice had decreed that the case be tried before the Special Court, but had notified the Special Court that if the trial brought out that this was a case of "seditious undermining of German defensive strength", the records should be passed on to the People's Court for further treatment. I had the impression that Oeschey, who conducted the trial very briefly, was decided from the start to transfer this matter to the People's Court. This decision was, in my opinion, not based on the case as such, since the case could have been treated by Oeschey as an offense against the law concerning "insidious attacks on the State and Party," particularly since it had to be taken into account that the defendant had been under the influence of the excitement of a heavy air-raid. What decided the matter, however, was the fact that the defendant was an official of the Protestant Church, whom Oeschey wanted to involve in a capital trial, since according to Ministerial directives, it was impossible for him to treat the case from the point of view of the law against "sedition, undermining of German defensive strength."
Oeschey's spiteful attitude was demonstrated for instance, by the fact that with the strongest emphasis he called the defendant, a highly respectable man, a political criminal, only because the defendant had cabled birthday greetings to the former German Emperor, who was then living in Holland. In addition, Oeschey represented the defendant as a man of particularly low character because he had allegedly refused to admit two young girls into his air-raid shelter. Actually the two girls had been properly assigned to another air-raid shelter, and the defendant had not thrown them out, but had merely asked them to go to their own shelter the next time.
When I attempted to exonerate my client through the submission of a document from the air-raid protection direction, Oeschey yelled at me and told me, "Sir, we don't appreciate that sort of thing." What was most striking about this, was the tone of voice used which cannot be reproduced in writing and which was reminiscent of that of a revolutionary tribunal, an effect evidently desired by Oeschey. When I arose and asked for a more dignified treatment of my person, Oeschey again turned on me. An excited exchange of words developed between Oeschey and myself, which ended in his declaration, "I refuse to deal with you." He then interrupted the session and retired into the consultation room, with his associate judges. After a short time he returned and referred the case to the People's Court.
Oeschey gave the defendant to understand in unmistakable terms that he should expect the fate of a criminal. Oeschey is therefore guilty in the death of Mr. von Praun, who despaired of his life as a result of his cruel treatment. Oeschey's behavior towards me was an unheard-of encroachment on the rights of the defense. My colleagues have told me of similar cases."
That is all of this affidavit that we wish to call to the Court's attention. At this time, therefore, we offer the Document NG-469 as Prosecution's Exhibit 231.
THE PRESIDENT: The document will be received in evidence.
MR. KING: We ask the Court to turn to page 115 in the English text, which is page 116 in the German text. We will introduce at this time the Document NG-563, which, when formally offered, will become Prosecution's Exhibit 232. This is a sworn affidavit of Hans Kern.
"I, Hans Kern, lawyer, Nurnberg, hereby declare under oath: I was born on 29 December 1896 in Buchschwabach in the district of Fuerth. I did not belong to the Party nor to any of its affiliated organizations. In the year 1924 I passed my second state examination *** became junior attorney.
From 1927 on I was an independent lawyer.
My activities at the Special Court consisted of defenses, partially as chosen counsel, partially as on official defense counsel. On this occasion I had the unpleasant task to appear before Presidents Dr. Oswald Rothaug and Rudolf Oeschey. The verdicts were often inhuman and were not in proportion to the crimes. The conduct of the trial was not that of an impartial judge, having to be called unworthy especially in the casses against foreigners. The presence of a defense counsel, since it was prescribed by law, was considered a necessary evil and a part of the trial. Many of my colleagues declined altogether to accept a defense before the Special Court. I did not take this course in order not to abandon in their distress the clients who sought protection from me. I considered it my duty to carry on as defense counsel, in spite of all unpleasantness. Clashes between presidents and counsels were not rare. You had to be very careful when conducting a defense, in order not to violate the duties of a lawyer, which were formalities in accordance with the National Socialist point of view and thus constituted a considerable limitation of any defense. The judges watched strictly over this. Reprimands in the public court room occurred at almost every session. Dr. Rothaug often took pleasure in giving political lectures of a National Socialist nature. Practically all defendants were addressed like criminals. Especially in the case of foreigners, it was stated at the beginning and also during the trial that they had to be annihilated. Evidence on the part of the defense almost regularly was declined as irrelevant, and nearly exclusively limited to police investigations contained in the case record. A defense attorney had to be summoned by the presiding judge at least a week before the trial. Frequently, however, the time limit was shortened, so that the attorney did not have enough tine to prepare himself and to offer evidence before the prosecution entered its demands for a penalty.
As an especially serious case, I would like to mention the cases of Durka and Struss which were tried on a Saturday. I was summoned as defense counsel two hours before the trial by Rothaug. As I protested against this, Rothaug declared that the trial had to take place in any case. He added that if I did not consent to take over the defense the trial had to be conducted without a defense counsel. I then decided to take over the defense in order not to leave the woman defendant alone during the trial. Rothaug then permitted me to interview my client before the trial. It was a 17 years old Polish girl, who together with another woman defendant, I believe, a few years older, was accused of having started a fire in a factory in Bayreuth. The two defendants denied this.