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A. I would not remember details, because that case took place at a time when I was no longer active in Nurnberg.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.
Could: III
Q Witness, you said that the removal of the Streicher pictures was hold against you?
A That was tho final point; that was one of tho last points among tho accusation which was brought up by Holz personally in a very sharp tone. I was accused that although I should know that Streicher was not really removed from office, but only sent on leave, that in spite of that knowledge I removed tho Streicher picture, whereupon, I said that I had the Streicher picture removed after the chief of the various office in the Gauoffice had been informed by an official of the Party that Streicher on account of a series of deliquencies had been removed from his office. The other theory was not known to me.
Q Witness, is it true that you were accused at that time not of the actual fact of removing tho Streicher pictures, but that you removed tho Streicher picture at once after Streicher was forced to leave, although a short time before that you had instituted the so called "Streicher Cell" in the jail, which was tho memorial cell in which Streicher had been committed during tho so called fighting day?
A Yes, I remember that very clearly. That was in the year of 1936, in February 1936, that then the chief of the legal office for civil servants approached me with a suggestion that the cell in which Streicher had been in prison should be closed and dedicated to Streicher. I told tho Gauleiter Popp that this question as to victor to decide a cell similar to tho Hitler cell at Landsberg an additional cell should be dedicated for his general memory, whether that was of such groat importance was not within my competency, and that I would have to ask tho Reich Ministry of Justice. That was tho result of the first conference with Amtsleiter Popp. Then reported to Reich Ministry of Justice, and asked for instructions as to whether there should be this peculiar request and it should be granted, and a few days later an adjutant, I believe it was Ministerial Counsellor Mielke called me on the telephone and told me that the matter was taken up by unter-secretary Friesler, who wanted, to contact Minister Hess, and for the time being I should not do anything about it.
I told Popp, whom I knew very well, "Well, I hope the whole matter would be buried in that way," because it was tho urgent desire of Popp to have on that occasion a Streicher birthday party, which occurred around the middle of February, and the whole matter should be produced. I did not hoar anything further about it, and was satisfied with that. Two days before tho birthday in tho evening after eight o'clock I received a telephone call in my apartment from the Ministerial Director Crohne that I should ----
MR. WOOLEYHAN: One moment, please. May it please the Court, this matter now under discussion was not raised in the direct examination but stems from an affidavit given by the witness. That affidavit states the witness' question with Streicher only insofar as the witness was criticized for removing a picture of Streicher. Any questions subsequent to that and current answers seem clearly irrelevant and outside the scope of either the affidavit or the direct examination.
THE PRESIDENT: Objection overruled.
BY DR. SCHUBERT:
Q. Will you continue, please?
A. I received shortly before the birthday of Streicher the information from Ministerial Director Crohne that the Minister has approved of the plan and desired that the suggestion should be carried out. The Ministerial Director Crohne instructed me as to how I should take care of the matter in detail--I was then a purely administrative official--and told me that above the door I should place a sign with the name of the Gauleiter Streicher and that I should have the cell decorated. I was quite unhappy about it that the matter should be carried out now, and I instructed the chief of the prison to take the necessary steps. A sign was affixed and the cell was cleaned, and if I am not mistaken, the personnel records of Streicher were put on the table of that cell.
Q. Witness, did you make a speech when that cell was initiated?
A. Yes. I can come to that if you want me to. Then I sent out invitations. I left it to Popp to send out invitations of guests to that ceremony. He invited only the immediate staff of the Gauleiter. That very small cell was quite crowded, and for the opening of the ceremony, I addressed a few words to those present, such as it was my duty as chief of that office, and I immediately gave the floor to Gauleiter Streicher, thereby avoided or prevented a speech which Gauleiter Popp was about to make and which would have carried far beyond the limits. Then Streicher made some remarks about his experiences which were quite out of taste-his experiences in that cell.
I don't think I have to go into detail. And that so-called ceremony ended with a visit of the entire prison. The shole matter was one of the most disagreeable jobs that I ever had to do, but it was my duty as an official to carry out the instructions of the Ministry.
Q. When was that?
A. That was in February 1936.
THE PRESIDENT: This examination, I think, has gone as far as the rules are entitled to carry us. I am referring to that particular point, of course. I don't mean to limit your cross examination at all.
BY DR. SCHUBERT:
Q. I want to finish, myself.
Witness, you said today, concerning the nullification plea, that the defense counsel could suggest to the Reich Ministry of Justice that a nullification plea should be made that, if I remember correctly, could approach the chief prosecutor himself.
A. I believe he could; yes.
Q. Is it known to you, witness, to whom the defense counsel approached in practice, the ministry of Justice or the Chief Prosecutor?
A. That I could not tell.
Q. Were you president of a civil senate or a penal senate?
A. I was president of a penal senate which had nothing to do with political cases.
Q. Witness, you explained this morning the following: if the Reich Supreme Court decided on the basis of a nullity plea and returned the case to a special court that then there was no order and no directive as to what the final decision should be. But wasn't it so that the special court to which the case was returned was bound by the legal opinion of the Reich Supreme Court?
A. I am surprised, I have mentioned before, that any German lawyer could be of that opinion, because a directive was not given by the Reich Supreme Court as to how the special court had to decide.
It only pointed out the legal points of view which in a new trial had to be taken into account, and the consideration of which was not apparent in the first trial.
Q. May it please the Tribunal, in order to clarify that matter, may I be permitted to read to the witness paragraph 36 of the so-called "Competency Regulation" of the 21 February 1940? May I be permitted to show it to him?
(Witness is offered the book)
A. (Reading) "Bound to the legal opinion on which the Reich Supreme Court based the revision." Very rightly so. And the special court was bound to take these legal points into account. That is quite clear. The Special Court, however--and I have seen that frequently--was definitely in a position to consider the points which the Reich Supreme Court mentioned, and still at the same time come to the same result as in the first trial. And it also happened that it maintained its brief sentence.
Q. Witness, we should like to clarify the matter now. You have just shown you surprise that a lawyer can be of the opinion which I have just presented to you as text of the law. You will have to grant me that when a case was returned to the special court, that special court was bound by the legal decision of the Reich Supreme Court. That is correct, isn't it?
A. Certainly, counsel, but it was not bound to decide in any particular way. That I did not say. But that is the way I understood you question.
Q. That is a misunderstanding.
Now I come to the case of Therese Mueller. If I understood you correctly, you saw the files of that case on the occasion of your interrogation?
A. Yes.
Q. Is it correct that the Reich Supreme Court did not consider the factor that the mother was informed about the life of her s on sufficiently relevant to consider it a case of extenuating circumstances?
A. Yes.
Q. Is it furthermore correct that the first verdict taking extenuating circumstances into account based that judgment only on that fact?
A. The first judgment did not deal with that question in its opinion. It only mentioned as extenuating circumstance, the worries of the mother for the life of her son, but it did not specify why extenuating circumstances were apparent in the opinion of the Tribunal, and in a subsidiary clause, it mentioned that this was quite a severe case. That is a contradiction which gave cause to the Reich Supreme Court to interfere in order to clarify that contradiction.
Q. But isn't it correct that the first sentence, as the only excuse for the mother, mentioned the fact that she was worried for the life of her son?
A. Yes, that is correct.
Q. There were no other extenuating reasons?
A. No, no other extenuating reasons.
Q. Witness, after you have confirmed this, and after you have read the legal provisions, will you please answer the following question: do you maintain your opinion that the special court had a possibility in the second trial at all to decide for a prison term instead of death sentence, under the conditions that further reasons for extenuating circumstances could not be produced in the second trial? bill you answer that question, yes or no?
A. The question can be answered.
MR. WOOLEYHAN: If the Court please, I must admit that I was following the question fairly closely, and I also did not understand it, much less be able to answer it yes or no. The Prosecution objects to the question and asks that it be re-stated.
THE PRESIDENT: Will you please restate your question?
BY DR. SCHUBERT:
Q My question was the following: After the witness discussed the first verdict, and the decision of the Reich Supreme Court, and after the witness has seen the law which was the basis of the second decision, could the witness still maintain his statement, stick to his statement, that is to say, that the Special Court in the second trial could possibly decide, could possibly hand down a sentence of a prison term; can he still stick to that if he takes into consideration that in the second trial new extenuating circumstances were produced and could be produced.
THE PRESIDENT: That question can be answered by yes or no, but if the witness desires to further explain his answer, he will be permitted to do so.
A I can very well answer the question, but not definitely with yes or no. I can state my answer to it if the Tribunal so desires; I am quite ready. Now, as before, I am of the opinion that the Special Court in this case could hand down a prison term, a prison sentence, in spite of the decision of the Reich Supreme Court; it was only necessary for it to explain why extenuating circumstances were apparent and it would be possible, it would have been possible to find reasons for that opinion, aside from the worries of the mother for her son. The evidence could certainly show other points. If I remember the case correctly that mother, Therese Mueller, caused her son to go to the Armed Forces after he had been disqualified in order to be qualified again. That, also, is a point which could be used in that connection. It may well have been a reason that such cases were very rare, to state that such cases were very rare, and that there was no reason to assume a severe case, but that could only show from the evidence, and it is very difficult afterwards to judge that.
I personally, now as before, am of the opinion that legally and actually it was possible to give reasons for extenuating circumstances, and to arrive at a prison sentence.
THE PRESIDENT: The time has come for cur usual noon recess; we will, therefore, recess until 1:30.
(A recess was taken until 1330 hours.)
THE MARSHAL: Persons in the court room will please find their seats.
The Tribunal is again in session.
DR. SCHUBERT: May it please the Tribunal may I continue?
THE PRESIDENT: Proceed BY DR. SCHUBERT:
Q Witness, you told us that as for extenuating circumstances it right have been considered that Therese Mueller had told her son to volunteer for the Wehrmacht in order to retain his qualifications as a soldier. Is it not true that this fact was taken into consideration during the first verdict of the Special Court in Nurnberg?
A I am not sure, but I do not know. I do not remember it. In any case the Reich Supreme Court did not refer to it.
Q Witness, other reasons which might lead to extenuating circumstances being granted are not known to you?
A In my view, that was a case for the presiding judge to see whether he could find extenuating circumstances. For the jurist there is only the possibility to find an assumption on which to base one reason, if one wants to do so.
Q You wish to express by that, that you can give reasons for any verdict?
A Naturally, as far as it cones within the framework of legal sentiment.
Q Witness, when you told us the reason for the sec end verdict, that represented your personal views; is that correct?
A The reason for the second verdict, no.
Q You criticized then and you said the reason might have been given in such and such a way?
A Yes.
Q Which is your personal view?
A Yes, it is.
Q You were not present at the second trial?
A No.
Q Therefore, you cannot say what was brought to light of day, in way of facts, at the second trial?
A No, I only know what was contained in the second verdict.
Q Thank you. Witness, you mentioned later on that among the cases which, regarding the sentencing by Oescheg, that among those cases which were reported to you was the case Ankenbrand. Ankenbrand had a Jewish witness sworn in. Can you remember whether you heard of that case for the first time from Oescheg or whether you heard of the case through a different source, and whether you, afterward, discussed the case with Oescheg. Do you remember?
A I do not remember, through him, I first heard about the facts, but believe that is the case, because while investigating the case there was a letter from Oescheg.
Q Can you tell me what were the legal provisions under which it was forbidden to make a Jewish witness swear to an oath?
A Such a legal provision was issued after the case with which we are concerned. It happened a few months later. At the time when this judge in Nurnberg made a Jewish witness swear to an oath, it was not prohibited.
Q Witness, you mentioned that you were transferred from Nurnberg to the Supreme Reich Court, as President of the Senate. Did that transfer offer any disadvantages for you?
A Yes, it involved considerable disadvantages. First of all, it meant that it denoted me in rank. I had been President of Oberlandesgericht, then I became President of the Senate; that is to say, I became head of a division. Also I suffered a disadvantage regarding my payment. There is evidence from the payment regulations. It was also a psychological disadvantage because I was treated as somebody who hand a little bad luck. And, it was also a great hardship to me that I had to leave my family; although as far as I could see it, there was no reason for this transfer.