Q Herr Doebig, I think that will conclude our direct examination. If there are no further questions from the bench, that concludes the direct examination.
BY JUDGE BRAND:
Q I have one other question I should like to ask the witness. You testified concerning a few cases in which a nullity plea was proposed and in which the Reich Supreme Court suggested in its opinion that the Special Court should give consideration to the matter of a more severe penalty. But you said that that was not a command but only a suggestion. Will you tell me as to whether you know of any case in which the Special Court failed to impose a more severe penalty after the Reich Supreme Court had suggested the consideration of a more severe penalty?
A I have already stated that it happened repeatedly that special courts at the second trial which had been ordered by the Reich Supreme Court, did adhere to the sentence which had been passed at the first trial, although the Reich Supreme Court in its decision which had squashed the first sentence concerning the new trial had advised the court to examine certain points of view and in particular had asked the special court to examine the fact as to whether a more severe penalty was not advisable.
BY THE PRESIDENT:
Q Referring to the decree commanding the taking of all property of the Jews on a ten per- cent of the valuation of the property, I would like to inquire whether that was a decree commanding all Jewish property to be taken from the Jewish people on a basis of ten per cent of its value? I emphasize the word "all."
A I do not know that, I only know that the real estate was valued and transferred at ten per cent; whether the other property was affected by the same regulations, I do not know, I don't think it was, for the other property had been largely confiscated during that fight in November -- or it had been destroyed*
Q Assuming that that decree had applied only to the real estate owned by the jewish people did you understand that that was a company open the court to enforce that transfer on that basis?
A No; this was an entirely now thing for the courts; they were confronted with an entirely now situation; tho judges did not know what sort of attitude they are supposed to take towards this situation; and, therefore they turned to no for advice via tho president of the district court. As far as I know tho Ministry of Justice had not boon previously informed about this action was purely a party matter; the entire action was purely a party matter; and as far as I am informed, it was not carried through in the sane manner in all Gaus, in all districts; in tho Group of Freuconia it was carried out particularly ruthlessly.
Q I understood you to say that Schlogelberger to id you that each judge night decide each case on its own Merit did I so understand you?
A That is correct. Schlegelberger said to me that I was to leave the decision in the individual case to the discretion of the judge. As far as I remember, I then said to him what can a judge do if he receives this document; hew can tho judge resist as a little individual because he is under duress and he has to deliberate from such duress.
Q My inquiry was directed to the question as be whether that was really a command or whether each judge could refuse to confiscate tho property if ho wished.
A The judge could have resisted to make entry in the documents if ho assumed that such an action would be against good faith, although such a judge only has to examine a document from the former point of veiw and does not have to examine tho actual facts on a legal basis.
BY JUDGE BRAND:
Q May I pursue that a little further? Were these transfers of Jewish real property made formally by the execution of an instrument by the Jew who owned the property? in other words, was the Jew compelled to sign the transfer by those seller methods that you spoke of?
A No. It did not mean dispossession, but those documents which had been made out by blackmail methods were to cause the Jews voluntarily to transfer his real estate at a price far below the ordinary price. The thing was dressed up to make it appear that the jews had given a voluntary declaration that he was ready to transfer his real estate at ton percent of its value.
Q Then the transfer was brought about by duress upon the Jew, and the question for the judges was merely what they should do with reference to evidences of a transfer which they knew was obtained by duress; is that correct?
A Yes.
THE PRESIDENT: do will take the usual recess of fifteen minutes at this time.
(A recess was taken)
THE MARSHAL: All persons in the courtroom will please take their seats. The Tribunal is again in session,
DR. SCHUBERT (For the defendant Oeschey): May it please the Tribunal, may I begin with my examination?
THE PRESIDENT: Proceed.
DR. SCHUBERT: I should like to say that I shall conduct the crossexamination concerning the statements made by the witness today as well as anything the witness has stated in his affidavit in order to cover the entire field of questions.
CROSS EXAMINATION BY DR. SCHUBERT:
Q. Witness, in your affidavit and also today you have stated that the defendant Oeschey, upon suggestion by Rothaug, and upon the suggestion by the Gau leadership of Franconia, was transferred from Aschaffenburg to Nuernberg. Is it not true that the defendant Oeschey wrote in the magazine Deutsche Justiz (German Justice) - I correct that - in that magazine he had read that a position of a Landgerichtsrat in Nuernberg was vacant and that on the basis of this information he applied for that position? Do you know anything about that?
A. That may well be. The positions of judges and prosecutors were filled after such information had been published in the magazine "German Justice". It is quite possible that Oeschey was one of those who applied for it, and the reports were to be sent to the Ministry on the basis of the applications. It did not always hold that the person who was suggested mas appointed. Frequently there were forces in the background which saw to it that a certain man came into a certain position. It occurred frequently that the appointment came out quite different than it had been suggested.
Q. Witness, what makes you think that the defendant Oeschey at that time knew Rothaug at all, and that he was known at the Gau Executive Office in Franconia?
A. That Oeschey was sent to Nuernberg on the basis of the efforts of the political office was told to me by the personnel office at the Ministry.
Whether Oeschey was known to Rothaug or whether he was not, that I cannot say and I have not said that.
Q. You do not know then Oeschey knew Rothaug?
A. I do not know that.
Q. Neither can you say that Oeschey was brought to Nuernberg on count of Rothaug?
A. That I cannot say for certain. I have assumed, however, that Oeschey and Rothaug were known to each other.
Q. Is it correct, witness, that when the defendant Oeschey reported to you, as his superior and President of the District Court, that you told him at that time you, witness, you, yourself, had suggested that he be appointed - recommended his appointment on the basis of his previous record; that you knew hin to be a particularly capable man?
A. That Oeschey brought with him a good record from Aschaffenburg, that I know. I cannot remember any statement made by me at the time when he reported that I considered it desirable that he come here. It is possible that I said I need a man in charge of the associate judges and that, therefore, I thought he might take over that job because it was not easy to find a man for that position. It is quite possible on the basis of the good record - official record - he brought from Aschaffenburg that I may have made that statement to him.
Q. Therefore, I can assume from your statement that he brought that Oeschey brought from Aschaffenburg a good record?
A. Yes, you can do more than assume that.
Q. Can you tell us the exact date when Oeschey started to work in Nuernberg?
A. I do not know the precise date but I believe it was in the year 1938, but I could not say that for sure.
Q. Today, witness, you have told us that the defendant Oeschey became the leader of the Gau Legal Office in 1938. I believe that is a mistake because in your affidavit you have stated that it was the summer of 1940 when that happened.
A. That nay be an error or it nay be that it was 1939 when he became leader of the Gau Legal Office. If I mentioned the year 1940 in my affidavit, the I may have mixed that up. I cannot say that for certain because after all what happened since.
Q. Yes, I can understand that, but maybe you can remember whether it was before or after the outbreak of the war.
A. I am sure it was before the outbreak of the war when he was nut in charge of the Gau Legal Office.
Q. You cannot say the exact date?
A. No, I cannot say the exact date. It nay be that it was in the spring of 1940; that is quite possible. I believe it was at the tine when Kreisleiter Zimmerman was put in charge of the Gau and most likely that was in the winter of 1939 and 1940, if I remember correctly.
Q. Witness, you have stated the defendant Oeschey became leader of the Gau Legal Office and of the National Socialist Lawyers' League in the Gau. Is it correct that the defendant Oeschey has never finally taken office in these positions?
A. I know that I was put in there as a commissar. When he took over this office I cannot say.
Q. You have further told us that the defendant Oeschey, after his arrival in Bamberg, was used at the Special Court, first as associate judge and then as presiding judge. As his superior, do you happen to remember that the defendant Oeschey at first was not active at the Special Court in Nurnberg, but at a different court in Nurnberg? Do you remember that?
A. That I cannot remember. I was of the opinion up until now that immediately after he had come to Nuernberg ho was used at the Special Court. However, I may be mistaken. At any rate, it did not take very long until he was used at the Special Court because, as far as I an informed, tho personnel officer of the Ministry info mod no that Oeschey was sent to Numb erg for tho purpose of being used at the Special Court.
Q. Witness, in your affidavit you made a qualifying statement concerning the defendant Oeschey. You say, among other things, that he did not study the evidence as carefully as Rothaug, that his opinions were incomplete, and that transgressions occurred during the proceedings. May I ask you, first, how frequently did you attend proceedings under Oeschey's presidency?
A. That is a question, I believe, which cannot be easily answered. I can't give you a figure.
Q. Could you toll us whether it was frequently Or rarely?
A. I believe it was frequently. I frequently attended tho Special Court Sessions, and particularly Rothaug's sessions, because, on the basis of my own observations, I wanted to ascertain whether tho complaints which had reached me about his manner of conducting the trial were correct.
Q. Excuse me; you are speaking of Rothaug now?
A. Yes, Rothaug. I also frequently attended sessions under Oeschey, sessions of the Special Court over which he presided. I remember that for certain, but I cannot five you a figure.
Q. No, I didn't want to know a definite figure. Concerning the defendant Rothaug, you have told us that you had.
taken measures against Rothaug; and since you are believed to have had reasons for complaint against the defendant Oeschey as well. I ask you, what were the measures you took in the case of Oeschey?
A. Oeschey was active as the President of the Special Court only during the last period of my activity in Nurnberg. Mostly, he was the Acting president of the Special Court. He became the real President of the Special Court, if I remember correctly, only after I was transferred to Leipzig. Therefore, there was no cause for me to remove Oeschey as President, or have Oeschey removed as president of the Special Court. At the time he was only an associate judge, or Acting President.
Q. Didn't you make any remarks in his records, or did you over call him to you and talk to hin about it?
A. For another reason -
Q. He received a remark in his record, that is correct?
A. That is correct.
Q. We will come to that later. However, that had nothing to do with the manner in which he conducted trials?
A. No; but not ever remark was put into the records.
Q. And personally you have never talked to him about these matters?
A. No, I cannot remember that. That I do not remember.
Q. Witness, can you tell no whether Oeschey, as Leader of the Gau Legal Office, or Acting Loader of the Gau Legal Office, was ever seen by you in uniform?
A. As far as I know, he were no uniform during the time when he was active in Nurnberg. I cannot remember that ho had a leading role in the Lawyer's League, because the head of that Lawyer's League, in my conviction, was Rothaug.
Q. In what position was Rothaug there?
A. As I have already said, he was the Gaugruppenwalter for judges and prosecutors of the National socialist Lawyer's League. Rothaug, of course, stood above Oeschey as far as his capacity was concerned, and, according to my observations, he had the loading role.
I do not remember any lecture by Oeschey. He always left it to Rothaug or the leader of the organization. That was Engert.
Q. Do you happen to remember whether tho defendant Oeschey had any publications?
A. No, I cannot remember that.
Q. Witness, in your affidavit you have stated that tho defendant Oeschey, at times, gave a political meaning to penal cases, in cases where it was not called for. Is that correct? Can you give us examples for that, or was that a mix-up with Rothaug?
A. No, I didn't confuse that with Rothaug; I have also observed that in the case of Oeschey. I cannot quote any individual cases any more. However, I have studied tho indictments and the judgments of the Special Court, kept myself informed, and I often had tho impression that it was not necessary to put these cases in tho political field in tho way in which it had been done.
Q. Witness, in one passage you mention tho particular severity of the judgments of tho defendant Oeschey.
A. Yes. I have also explained that I had. the impression that Oeschey wanted to copy, or attempted to copy, his predecessor Rothaug.
Q. Would you like to let me put this question now?
A. Yes.
Q. Is it also known to you, witness, that in various instances judgments by Oeschey were revised or were squashed by the nullification plea?
A. It nay very well be that judgments were annulled, but not becuase they were not sever enough; it was because they were not founded wall enough legally, on the basis of Rothaug's lack of knowledge of legal foundations. Rothaug, of course, gave loss cause to tho Reich Supreme Court to annul a judgment than the sentences by Oeschey, as far as Oeschey himself had written opinions or reasons for his sentences.
Q. Would you say, therefore, or do you mean to say, that in all cases where tho Reich Supreme Court annulled sentence by Oeschey, the reason for that could be found only in the legal opinion and not in the measure of punishment?
A. The reason was certainly that the sentence was not explained thoroughly enough. That was the job of the Reich Supreme Court, to examine whether the evidence had been taken into account on the basis of all legal points.
Q. Witness, you will have to agree, however, that these legal considerations very frequently were manifested by the measure of punishment, and that the nullification of the Reich Supreme Court would hove to apply on the measure of punishment also.
A. It is doubtlessly true that in a case where, for instance, tho law against public enemies was not taken into consideration and where the Reich Supremo Court had. suggested whether it shouldn't be a fact that the defendant should be considered under that law, and when in this case the Special Court applied that law, a higher punishment was the result.
Q. Is it known to you, witness, that tho defendant Oeschey, in one case at Rogensburg, had a trial involving a crime against the law concerning collection of wool, and that in spite of the fact that the law provided a death sentence, he sentenced the man to a prison term?
A. No, I do not remember this case.
Q. Witness, you speak about the case Stobel. In order to clarify this case for the Tribunal, will you please briefly repeal the case in question? You have explained it here in the affidavit, but probably it is not quite known to all.
MR. WOOLEYHAN: May it please tho Court, tho prosecution has made a similar Rejection before to this repeating of facts of cases that arc not in issue; that is, the facts are not in issue. The facts of the Strobel case are already in evidence. The discussion of that case in the witness' affidavit is likewise in evidence. The prosecution objects to a. further recital of tho mere case facts. If the counsel for defense has pointed questions with regard to that case, that is something else again.
THE PRESIDENT: The objection will be overruled.
BY DR. SCHUBERT:
Q. Now please, witness, would you answer the question?
A. Details?
Q. No details.
A. I would not remember details, because that case took place at a time when I was no longer active in Nurnberg.
My attention was called to the case when I was interrogated hero by the prosecution, and on that occasion I was shown that Strobel had been sentenced to death although ho was only charged with a crime against the law concerning malicious intent. I was shown the files of the Special Court, and I found out that the record of the proceedings before the Special Court did not carry any remark concerning the fact that the defendant was informed about the change in the legal point of view. If that were the case, and that has to be assumed from the record, then it was against the legal provisions, because a. man who is only indicted for transgression of the law concerning malivious attacks cannot be sentenced to death without being informed about the change in the legal point of view -- that is, the application of the law -- and without having had an opportunity to defend himself accordingly.
THE PRESIDENT: One moment, please. I want to inquire whether the witness understands that when these yellow lights come on it means he is talking too fast and he should slow down?
THE WITNESS: Yes. I shall watch that.
BY DR. SCHUBERT:
Q. Witness, you have seen the files, you say?
A. Yes.
Q. From these files could you see that in that case the main trial was discontinued and then resumed after a few days?
A. I cannot remember that.
Q. Did you see only one part of the record?
A. As far as I can remember there was already a trial before the Special Court concerning malicious attacks, which was discontinued, and then a new proceeding took place before the Special Court but I could not find any indictment, any second indictment. Therefore I have to assume --
Q. One moment, please. You mentioned before that the defendant was not informed about the changed legal point of view, according to the records. Is that correct?
A. As far as I could find out from the records, this is correct. I have read the record and did not find any mention of the change of the legal point of view.
Q. Did you read the decision about discontinuance?
A. That I cannot remember.
Q. You cannot remember that. You could not tell us anything, therefore, as to whether in that decision any such remark was contained?
A. That I don't know. If there was any, I did not see it. At any rate, the new trial before the Special Court took place on the basis of crime against the law concerning malicious attacks.
Q. Did you ascertain, witness, that the defendant Strobel during the first trial was without counsel, whereas in the second trial counsel was provided?
A. That counsel had been appointed for the defendant I could see from the record and I was particularly careful to note that because, if it was intended to sentence him to death, then it was quite understood that he had to have counsel.
Q. Did you see the list of previous convictions of the defendant?
A. The previous convictions are mentioned in the decision, yes, **deed. He was mentioned there as a habitual criminal. If I am not mistaken, there were several of them, but in other fields, different fields. The act which was here before the court was a political act, malicious intent, and whether that is sufficient in order to establish the qualification of the defendant as a dangerous habitual criminal is another question.
Q. Witness, since we come to this point I have to put another question to you. Is it known to you that according to the jurisdiction of the Reich Supreme Court the act which is to be tried does not necessarily have to refer - that is to say, that the defendant in order to be considered a dangerous and habitual criminal does not necessarily have to have committed a similar or the same kind of a criminal act as he committed according to his list of previous convictions?
A. That is quite well known to me that it is not necessary that he commit the same act or a similar act.
Q. But I would like to put the question whether it is sufficient if he committed a purely political act.
A. Yes, that you have already mentioned.
Q. Witness, in your affidavit you have told us that the defendant Oeschey raised various complaints against judges at Nuernberg and that he made these complaints in his function as leader of the Gau Legal Office. I should like to state two cases later. But in the beginning you have mentioned the term "complaints" quite generally. Apart from these two cases which you have mentioned, do you know of any more?
A. I believe that I mentioned three cases in my affidavit; that is, the case of Dr. Heinrich, the sentence against the Jewish manufacturer Schubart who lived in Switzerland --
A. That is the same case.
A. Yes. Then another case was a rather harsh complaint against the presiding judge of the chamber dealing with charges against Jews, who was accused --
Q. I will come to these cases. I only want to know whether you mow of more cases.
A. The third case was the case of Angenbrandt. That is the local court in Nuernberg put a Jewess under oath. In this case also a rather harsh complaint was made and measures against this judge were demanded. Those were the three cases which I remember quite certainly.
Q. No other cases?
A. No, at the moment I can't remember but there nay have been more.
Q. Witness, from your activity as the president of the District Court of Appeals you certainly know that the party offices and affiliated organizations unfortunately meddled into the jurisdiction very frequently?
A. Yes, unfortunately, that is correct.
A. Is it furthermore correct that the defendant Oeschey, after he had taken over the position in the Gau, got in touch with you and in the course of a conference attempted to achieve that such influence on the part of the Party should take place in connection with you? Can you remember that?
A. That is quite possible because I welcomed every means in order to avoid such influence. I suffered from it myself because I always attempted to work against that interference and so it is quite probable that I discussed with Oeschey that he should discuss such matters with me rather than to leave it to the individual Kreisleiter to take rather strong measures against a judge because generally I was only informed about these things at a time when nothing could be done about it and the judge was in a rather lost position. It was my intention to protect the judge under all circumstances.
Q. Therefore also, as far as you can remember, you, together with Oeschey, decided to cooperate in such cases in a certain sense?
A. Yes, that he should inform me about the intentions of the Party so that I should be able at a time when I could still do something about it to intervene before the Kreisleiter would interfere against the judge in a public meeting.
Q. Witness, who started the complaint in the case Heinrich; Oeschey or any other office?
A. As far as I know, as far as I remember, the complaint was signed by the leader of the Gau Legal Office, Oeschey, but the man behind the whole matter is probably Gau Inspector Haberkern, who frequently approached me, demanding that I should take influence upon the decision of the District Court of Appeals in that natter. I always refused Haberkern and said that I maintained the independence of the court, and as far as the request is concerned to achieve a so-called National Socialist decision of the District Court of Appeals, that I could not comply with that.
Q. Witness, excuse me if I interrupt you. I only want to ask you once again. Could you remember whether in that case you received a letter from Oeschey but that attached to that letter there was a complaint from the DAF (German Labor Front)?
A. I cannot remember that.
Q. Now what was the end effect of the whole affair? Did anything happen? Did any damage occur to Dr. Heinrich, the judge who made the decision?
A. It was requested in the complaint against Dr. Heinrich,who handled the case Schubart, that proceedings should be started against Heinrich.
Q. I ask whether there was actually a disadvantage to that man?
A. Counsel, I am answering your question.
MR. WOOLEYHAN: May it please the Court, we object to this question in particular and this line of questioning in general on the ground that it is completely repetitious and designed to elicit apparently the very same answers as those which appear on the witness's affidavit.
There seems to be no new line of Questioning taken up.
DR. SCHUBERT: May it please the Tribunal --
THE PRESIDENT: The objection will be overruled.
BY DR. SCHUBERT:
Q. Please, witness.
A. Disciplinary proceedings were demanded against the reporting official in a very severe form because allegedly that judge was untenable for the Gau Franken. Since only the Reich Ministry of Justice was competent to start disciplinary proceedings against the judge, I reported to the Ministry of Justice and was of the opinion that in order to start disciplinary proceedings there was the least cause in this case.
Consequently the Ministry did not demand disciplinary proceeding only on account of an unfortunate term in the opinion. It stated that the judge shall be informed of the awkwardness of the statement. That actually happened, that is to say, tho decision of the ministry was brought to the attention of the Senate. However, against Dr. Heinrich nothing was done. On the contrary he was held as strongly as possible in his position and he did not suffer any disadvantage.
Q Witness, in your report to the Ministry, did you express that you personally did not approve of the sentence of Dr. Heinrich?
A I personally have pointed out that I regarded it a rather unfortunate term that passage in his sentence in which it was stated that jews were told themselves to go abroad, and, therefore, one could not reproach them for doing so. The sentence could not be fully approved of since it has reduced the retirement pay of the Jewish manufacturers by a certain amount, whereas, the local court had granted it to its full extent.
Q Excuse me, witness. Have you mentioned that in your report to the Ministry?
A That I can not remember. That I can not remember. I only asked so far as I feel today, and the thought then it was not right to reduce the retirement pay, but I could not take any inference on that.
Q Witness, is it correct that you appointed Heinrich, the man in question, that you suggested his appointment as President of the Senate, and that you backed this suggestion in your letter to the Ministry?
A It is true that I for years suggested the name of Dr. Heinrich to be entered into the golden book. If I am not mistaken, as well as President of the Senate, as also as Reich Ministrial counsellor, if that suggestion was not repeated later on. This I remember correctly was done by tho express wish of the President of the Office, Reichsgerichtsrat, but I don't remember whether during my period of office the suggestion was not repeated.
I was always of the opinion that suggestion with regard to Heinrich were continuously made. That is as I remember it.
Q I see, witness. Now I come to the case of Juvenile Penal Chamber. Do you still remember that also in this case the defendant Oeschey sent you a complaint from the leadership of Hitler's Youth in Nurnberg for your decision stating you had urged that, in other words, that at the time it was not a personal complaint which came from Oeschey to you?
A It may well be that the complaint from the Hitler's Youth was attached, but I believe I remember correctly that Oeschey personally stated his opinion on tho matter, and in a very very severe tone. That is as I remember it.
Q In that case did the judge suffer any disadvantage?
A I have re-examined tho case against which tho complaint had been raised, and found out that this complaint or complaints wore not justified, and did not take any stops against tho judge in particular so far as request for juvenile action against tho judge concerned. I fortunately rejected that so far as the severe tone of the question for complaint was concerned. I did not even make any written decision.
Q Witness, I would like you to toll me whether in tho case of Dr. Heinrich, and in tho case of tho Juvenile Penal Chamber, tho persons concerned suffered any disadvantage on tho part of the Party. That is to say, whether the Party continued to deal with this matter, or whether tho Party considered it finished?
A In the case of Dr. Heinrich it was hardly possible that they could suffer any disadvantage on tho part of tho Party because a gauleiter disliked him intently, and always considered him as an untenable judge so far as the Gauleitung was concerned, because of the opinion of Streicher he was of Jewish descent. However, his Aryan descent was proved a way back to the year of 1800, and I don't know where the Gauleitung got their knowledge from that Heinrich was not purely of Aryan descent, but any further disadvantage in the case of Schubert could not occur with Heinrich, because he was already in disfavor any way.
A direct order in my opinion did not suffer any disadvantage. There was no cause for it.
Q That is to say, that both of these people did not have any further disadvantage on the part of the Party?
A That I don't say. The attitude of the party to judge Heinrich got certainly more severe on the basis of the case Schubert.
Q Could you tell us about any definite action?
A No, that I don't know.
Q Witness, now I come to your departure from Numberg. In that connection you stated that the defendant Rothaug on that. In that connection you mentioned a conference which took place in the office of Gauleiter Holz, and where Oeschey had to bring out a prosecution against you. I ask you, witness, on the occasion of that conference between yourself and Holz, did the defendant Oeschey make any statement?
A Yes, certainly. He protested the accusations, that is to say, all the individual points which I have mentioned here, and other in addition, which I can not remember, but Holz was not informed about the details at all. Oeschey presented the case. Holz sat at the head of the table, on his right Oeschey, on his left the chief of staff of the Gauoffice, and Mr. Kunstmann, opposite Holz I was seated, and then that was called a conference, which was certainly not a conference but was used to raise the accusation against mo, namely, that whore the individual points wore presented by Oeschey in very severe tone. I considered them very poor tastes that a judge who was a subordinate of myself should have the men selected to accuse his superior.