I am ready, if you like, to describe this incident.
Q. I asked you about the personal relationship.
A. I may add a supplementary remark; this, however, is quite personal what I am saying now: that many hours during the night, out of rage and excitement, I could not sleep because of the dishonorable treatment that Rothaug -- because of the dishonorable way in which Rothaug treated me.
Q. Did you ever ask for a transfer?
A. Yes, I once requested to be transferred to Duesseldorf, and I did that in a form of asking for a promotion. During the war there were no transfers except for official reasons; it was only by way of being promoted. As far as I know I only applied for a promotion once and I wanted to go to Duesselforf because I wanted to get away from Nurnberg, since I also had come to Nurnberg not out of my own free will, but, however, I was not promoted
DR. KOESSL: I have no more questions.
DR. SCHUBERT: (Attorney for Defendant Rudolf Oeschey) If your Honors please, may I continue the cross examination?
THE PRESIDENT: Proceed. May we suggest, however, that there has already been quite a good deal of cross examination, and we trust that Defense Counsel, who are now about to conduct a cross examination, that it be confined only to those matters that would affect Dr. Oeschey.
BY DR. SCHUBERT:
Q. Dr. Dorfmueller, you yesterday mentioned the position of the defendant Oeschey in the Lawyers' League. Did you have any experiences of any kind that the defendant Oeschey within the framework of the Lawyers' League stood out particularly?
A. I did not make any observations to that effect. He especially did not stand out as a speaker in contrast to Rothaug who once gave a lecture in the Lawyers's League.
Q. Dr. Dorfmueller, you mentioned as one of the tasks of the Lawyers' League the training of its members, their education. Do you know who was in charge of the training of the members of the Lawyers' League in Nurnberg.
A. No.
Q. Do you know what position the defendant Rothaug had in the Lawyers' League?
A. No.
Q. Not that either. Do you remember correctly that you answered yesterday the question as to what field the Lawyers' League of Franconia encompassed -- that you could not that with certainty?
A Yes, I do not know these matters in detail because I am not from Franconia -- I am not a native of Franconia.
Q Dr. Dorfmueller, you mentioned that the defendant Oeschey was in the Gau Legal Office as the Gau Legal. Office Chief, as you said - that he became active there. Do you remember that or do you intimate the possibility that the defendant Oeschey was merely Gauhauptstellenleiter of the Main Office, Legal Adviser and Legal Care in the Gau Legal Office? He was only in charge of one office in the Gau Legal Office?
A These little differentiations do not mean anything to me. I admit the possibility that he may have had another title.
Q You were asked yesterday about political reliability in connection with the promotion of Oeschey to district court director, and if I remember correctly in that connection, you mentioned that the defendant Oeschey was just as unthinking and fanatical as Nazi as Rothaug. Since this remark was made in connection with his political reliability, I am now asking you: is it correct, if I interpret the word "unthinking" as "bedenkenlos" without misgivings. If I understand it to mean, against his political reliability in the meaning of the word, at that time there were no misgivings -- no doubt?
A Not quite, Defense Counsel, I would have said "unbedenklich". I meant something else, only, also, without any misgivings as to the means.
Q What "means" do you mean?
A I mean penal means, the means which were available to a criminal judge in order to punish those who had different political ideas.
Q Did you experience any such cases, yourself?
AAt the moment, I do not remember trials by Oeschey against people who had different political ideas. I remember only cases in which he was absolutely without selfrestraint, and in my opinion, he lacked that objectivity which should be the quality of a judge.
Q Witness, in saying so, you want to point out the lack of correctness in the outside form of a trial?
A Correct, yes, first of all that.
Q You said that the trials that you experienced were those trials in which Oeschey was the presiding judge?
A Yes.
Q Can you confirm that the manner of Oeschey in conducting a trial, consisted in trying to deal with the matter exhaustively?
A Yes.
Q Did he take into consideration matters of the defense as well as for the prosecution?
A Yes, they also tried to investigate that. One can not charge the Special Court of Nurnberg in any way, I think, with being superficial.
Q You also mentioned the discussions which took place after the submission of evidence by the prosecution -the discussions which took place between the prosecution and the court?
A Yes.
Q Were you ever present in discussions of that kind where the defendant Oeschey took part?
A Yes.
Q Was there a discussion of the facts, the material discussion with the prosecutors?
AAnyway, it was in a more objective manner then when Rothaug was the presiding judge, because under Rothaug there was no discussion in the real meaning of that word, because Rothaug expressed his opinion in an authorative manner, and did not allow any other opinions to come up; and, to that extent, this could not be said of Oeschey.
Of course, he was also younger so that he was newer to me, and to my own age, and he was not so dictatorial either; so, that one could express one's own opinion toward him; whether he considered it, that is another question.
Q Dr. Dorfmueller, in such a discussion, did it perhaps happen, too, that the defendant Oeschey found the request for a penalty that was made by the prosecutor, too high, and wanted to inflict a less severe punishment?
AA similar case could be reported, perhaps -- I can not say yes to the question as you put it. It was not that he stated the penalty asked for by the prosecution was too high, but he agreed with the opinion of the prosecutor in this case, i.e. with me and was of the opinion that he penalty which Rothaug intended to give was too high. I remember a case, as far as I recall, this is the only case of this kind -- however, this was the only case of its kind which was tried in Regensburg, and Rothaug was the presiding judge. In this case, and at that time, Oeschey was still an associate judge - a farmer's wife, whose husband had been drafted, had a French prisoner of war with whom she had an affair, but not in a very serious way they had kissed each other. In the discussion before the final plea, Rothaug stated that he considered a penalty of a penitentiary sentence of three years as adequate, referring as usual, to the sound sentiment of the people. I was of the opinion that a considerably more lenient penalty was sufficient. I was thinking of one year penitentiary, and I expressed this opinion. It is one of those cases in which I was for a more lenient sentence, and when I expressed it in these internal discussions Oeschey, in this case, agreed with me, and was of the same opinion as I, namely that three years of penitentiary was too high.
We did not succeed with this opinion with Rothaug.
Q Witness, a final question: Yesterday, the remark was discussed which the prosecutors put into the indictment, which remained in the working file of the prosecution; and, this remark contained the words "proposed application for penalty", and then there was something like, so-and-so many years of penitentiary or death penalty, or something like that. When was this remark put into the indictment?
A When the indictment was composed, written, and at the same time that the indictment was written - that, is to say, the indictment was drafted by the Referent, by the export. And, at the same time with this draft the application for a sentence was put down. I remember that this regulation was made in the era of the so-called "guided justice"; but there were considerable objections by the prosecution to this regulation because we were against it already at the time when we were composing the indictment, merely on the basis of the documents, without the impression that we gained during the trial. To make a judgment about the amount of penalty, normally without the personal impression gained at the trial, is not possible; at least, it is distorted. In spite of that it was ordered, and at this period of time, when the indictment was composed, the prosecution had to decide about the penalty that was to be imposed, however, absurd it was.
Q Dr. Dorfmueller, did this remark serve also for the information of the Reich Ministry of Justice, in cases in which it had been ordered that a report had to be given to the Ministry of Justice?
A If I am not very much mistaken, all indictments had to be submitted to the General Public Prosecutor, who probably did not hand them forward all of the time, but they had to be submitted to him so that in every case the General Public Prosecutor was informed about the proposed penalty that would be asked for, and if he felt that it was too lenient, he could ask for a more serious penalty.
Then, I understand you correctly, if I think that these remarks were made by the prosecution, not on the basis of their own decision, at a time when one could not speak yet of a discussion between the court and the prosecutor?
A Yes.
Q Dr. Dorfmueller, at the same time was there, in cases where the death penalty was considered - were photographs of the defendants requested?
A Yes.
Q Thank you very much.
DR. SCHUBERT: I have concluded my cross examination.
May it please the Court, may I have permission to make a brief remark? Yesterday, it happened to me and to my colleagues, that we received a supplementary volume to book 3 of the document book of the Prosecution. From the table of contents, I could see that an affidavit of the witness, Dr. Dorfmueller, who is present here, against Oeschey, is to be submitted. Still, I do not know this affidavit of Dr. Dorfmueller's, and, of course, would have to reserve to myself, the right to cross-examine the witness about this affidavit. I only want to find out this, and I wanted to initiate it also with the Prosecution, whether there is a way to undertake this cross-examination as soon as possible since we happen to have the witness here?
MR. WOOLEYHAN: Your Honors, that affidavit was placed in the book before we knew that Dr. Dorfmueller would be available as a witness. It will not be offered.
JUDGE BRAND: Dr. Dorfmueller, I should like to ask you a few questions to clear up a point of judicial practice which is not quite clear in my mind. It doesn't relate specifically to any of the defendants.
BY JUDGE BRAND:
Q You have spoken several times with reference to the files, and to the examinations of the files which were frequently made by the judges. Am I correct in understanding that a part of the files consisted of reports from the various police agencies concerning the criminal case under investigation?
A Yes, the course of the file was in brief as follows: Usually, in most cases, there was a report, a denunciation, either directly to the prosecution or to the police.
Q And in the files would be the written report of the police as to facts which they had investigated. That is correct, isn't it?
A. Yes, the police had investigated the facts on their own and submitted this finished investigation to the prosecution.
Q And the judge investigated the files before trial?
A Yes, he received the files together with an indictment by the prosecution, and he examined the files. It happened also that he desired to have a supplementary investigated because the facts did not seem to be clear enough to him.
Q In cases in which police officers had made reports, and those reports were in the files, were those police officers always called as witnesses at the main trial?
A They were regularly, as a rule, called as witness. That was a practice which was laid down. They also appeared in the main trial, but they were not airways examined as witnesses. They were examined only if contradictions appeared between the statements which they had made to the police and the statements which they made before the court.
That is, if they changed their statements when they were before the court. Then the police official was also examined.
Q Then I take it that it is true that the court considered the reports which were in the files in determining whether or not the defendant was guilty, even in cases where the police officer who had made the report did not testify in the main trial -- is that correct?
A Yes.
JUDGE BRAND: Thank you very much.
THE PRESIDENT: I should like to ask the witness a question or two.
BY THE PRESIDENT:
Q Concerning the case of Lopata, I think it appears to by your testimony that Lopata was Polish, is that correct?
A Lopata was a Pole, yes.
Q Do you know of your own knowledge, or from your connection with the case, whether Lopata had been brought into the Reich as a laborer, or whether he came voluntarily?
AAbout Lopata as an individual case, I don't know that fact. I don't even know exactly whether the Poles, all of them, came voluntarily or by force. It is possible that in the beginning they came voluntarily. Later on, as a soldier -- when I was a soldier in Warsaw I heard rumors and talks that they had been forced to come.
Q Aside from rumors, and dealing with what you may know, during the period when you were one of the prosecutors in the Nurnberg Special Court were there instances of Poles brought before the court, where these same Poles had been brought in for labor, that had not come voluntarily? I am referring to other cases besides Lopata. You have told us as to him.
A Yes. I don't know exactly whether the Poles who came at that time came voluntarily or did not come voluntarily. In any case, all the Poles who were in Germany were used for work, and mostly they were farm laborers.
Q I would like to ask one more question. The word, "Referent" has been used by you, and also by other witnesses, but I have not acquired a very clear idea of the duties of a Referent. Can you throw a little light on that subject for me?
A When I mentioned the word "Referent" I meant the expert of the prosecution working on the case, the "Sachbearbeiter." I myself was such a Referent, such an expert. In other areas of Germany they did not use the word "Referent" - but "Dezernent." It belonged to the tasks of the export to work on the criminal cases up until the indictment was issued, and, after the sentencing, the execution. In all cases before Special Courts it has to be stated, in addition, that the experts, the "Sachbearbeiter", were subordinates to the chief public prosecutor prosecutor at the Special Court - that is, the Oberstaatsanwalt - that they did not have any authority to sign and to make any decisions themselves. That is, they were allowed neither to indict someone, nor make reports, nor objections, nor to make decisions; nor were they allowed to sign any of these things, including clemency appeals, themselves. They were only allowed to sign subordinate orders of a lower authority. So that the formal and material direction of business, --and therefore the responsibility was with the chief public prosecutor, Oberstaatsanwalt, alone. We Referenten, we experts, were basically dependant experts. That, however, was true only for the Sachbearbeiter at the Special Courts whereas the Referenten at usual criminal cases also could sign indictments and objections themselves.
Q You spoke of them preparing documents. What documents did the Referent prepare in the course of preparation of a trial and the actual trial?
A The Referenten, the expert summarized the result of the investigations which the police organs had submitted to them, and either discontinued the trial because of lack of evidence, or they filed indictment. The document that I was referring which went to the court.
THE PRESIDENT: Any other defense counsel desire to examine?
DR. HAENSEL: (Counsel for defendant Joel) May it please the Court; The associate Judge, his Honor the Associate Judge, announced that he would ask a question after the cross-examination had been ended, and he said this question would not refer to any one of the defendants, but would be a general one.
The conduct of the German Penal Procedure was the subject of this question. I am convinced that the answer which the witness gave here is not correct but is based on a misunderstanding.
THE PRESIDENT: If that is the purpose of your statement, you would have to contradict the witness by testimony that you introduce in defense, but not by answering the witness at this point.
DR. HAENSEL: I only wanted to point out that it was a very basic point, namely, the court cannot know certain details of our practice of conducting a trial, and these questions in particular which were put today, namely, the question as to whether the police notice that was in the file could be considered in the judgment, or whether this could not be done. This shows that this basic problem has to be clarified.
JUDGE BRAND: Is it your point that you wish to ask the witness now some further questions on that matter?
DR. HAENSEL: I believe this subject which we started today would be advanced if two or three questions would be put to the witness.
JUDGE BRAND: I should be glad to hear them.
BY DR. HAENSEL:
Q Witness, in our files there are remarks made by the police which summarize results of investigations. Is that correct?
A Yes.
Q These results of the investigation, are they submitted in the main trial or not?
A No.
Q Do these results of the investigation by the police play any role during the sentence?
A No.
Q Are we concerned only with the entirely unimportant reports which, perhaps, are supposed to simplify the work of the prosecution, but for the determining of the question are unimportant?
A Yes.
BY JUDGE BRAND:
Q Witness, I understand you to say that the police reports are not used or introduced in evidence at the main trial, but I also understood you to say that the trial judge, as a matter of practice, roads those police reports before the trial.
A Yes, he reads them.
Q Is it your theory, then, that he expunges everything that he has read when he sits on the Bench in the main trial, and when he is determining guilt or innocence?
A I do not believe that he can forget everything that is in the files. In some way or other it must make an impression upon him, and I should imagine that if in a report by the police, a remark by the police, there is a note, for example, about political matters contained in it, that this will impress the judge in some way or other. Then, however, in most cases he summoned the police official who had written this remark and also examined him as a witness. That was in accordance with the principles of the conduct of the main trial. Under German law it is not allowed - or should not -- nothing should be considered in the judgment which was not subject of the main trial.
Court No. III, Case No. 3.
Q But you still adhere to your statement that the police officer who made the factual report is not called as a witness ordinarily unless there is contradiction made by some witness at the trial of statements made in the police officer's report. Am I correct in that?
A When I gave my first answer I did not think of a case where there was a summary report of the police investigation in the files, but I was only thinking of the fact that the police official who was in charge of the investigation was summoned to the court and examined. There was not always a summary of the police report in the files. These reports were in the files only if the Gestapo had undertaken the investigation, that is, only in political cases, for the Gestapo, the Geheime Staatspolizei, always made a concluding report. However, in the rest of the cases, in more than half of the cases which were tried before the Special Court, the Gestapo had not carried on the investigations, but the criminal police, or the rural constabulary. In cases which I was thinking of originally when I answered, the police official was examined only if there were contradictions in the statements of the witnesses.
Q But the Gestapo reports were made a part of the files, were they not?
A Yes.
THE PRESIDENT: Do any other defense counsel wish to crossexamine this witness?
DR. SCHILF (Counsel for the defendants Klemm and Mettgenberg): May it please the Court, only one single question, one single question, which has resulted from the questions of Judge Brand.
BY DR. SCHILF:
Q Witness, you have just told us about the matter of the influence of the files upon the main trial. I only want to ask you this. What you have stated here, basically, was that in accordance with the Code of Legal Procedure and with the practice even before 1933?
A What I said is general human experience, which was confirmed Court No. III, Case No. 3.before and after 1933, namely, the experience that no one can free himself of matters of which one takes judicial notice of if they are written down in the files, so that matters which are written there make an impression upon any judge if he had read the files.
Q And the purely formal matter of how the files were submitted when the prosecution submitted the files, that was the same before 1933 as after 1933?
A Yes. It was a basic principle of German legal administration and legal procedure to conduct trials in that manner. This, apparently, differs completely from the American manner.
DR. SCHILF: I have no further questions, Your Honor.
DR. WANDSCHNEIDER: For the defendant Dr. Rothenberger.
THE PRESIDENT: This is also your second round, Dr. Wandschneider.
DR. WANDSCHNEIDER: Only one question, Mr. President, in order to clarify the facts.
BY DR. WANDSCHNEIDER:
Q Witness, you said that the investigations were in the hands of the police, and that the prosecution then used these investigations when they filed the Indictment.
A Yes.
Q Is it correct also, according to the German Code of Legal Procedure, that before the Indictment is filed the prosecution frequently conducts investigations themselves without having the police be the exclusive authority of investigating?
A The prosecution could undertake investigations themselves, as well as ordering investigations conducted. This happened, quite frequently, especially in Nurnberg where they worked especially thoroughly. The police investigations had to be supplemented frequently, especially if the police investigations had been done by the constabulary. Then there was the double possibility that the files were either returned to the police or to the constabulary with concrete directives or in Court No. III, Case No. 3.structions for further investigations, or that the prosecutor himself, in exceptional cases, ordered witnesses and examined them.
Q Thus, is it correct that quite frequently, especially, the prosecution tried to have contradictions which existed in the statements of the witnesses clarified, and that this was done by investigations by the prosecution?
A Yes, that is correct, and that was also in accordance with a principle of the German Code of Legal Procedure, that the German prosecution had to consider matters both for and against the defendants it had to consider them both. In former times the principle had been formulated that the prosecution is the most objective authority in the world.
DR. WANDSCHNEIDER: Thank you.
THE PRESIDENT: Does the prosecution desire to have any redirect examination of this witness?
MR. WOOLEYHAN: No, Your Honor, we do not.
THE PRESIDENT: This witness may be excused.
(Witness excused).
MR. LA FOLLETTE: May it please Your Honors, with the permission of the Court and for the purpose of attempting to be helpful, I would like to address myself for a few minutes to the question of the manner in which the cross-examination of affiants who have not appeared as witnesses might be conducted, in order to have an expeditious proceeding.
I want to say first that I have investigated, just rather briefly before coming here, some of the rulings on affidavits which were made by the IMT, and I find that generally they are consistent with the ruling which was made by this Tribunal on the 11th of March in connection with Prosecution's Exhibit No. 79, document NG-316, which was the affidavit of Dr. Walter Brem, which was admitted in evidence after Dr. Grube and Dr. Schilf had addressed the Court on the subject. This matter is found -
Court No. III, Case No. 3.
JUDGE BRAND: What was that number?
MR. LA FOLLETTE: That was 79, Your Honor. The proceedings are found on pages 393 to 396 of the transcript.
As I interpret the ruling--although the Court may interpret itself, of course, when it looks at it as I refer to it -- the affidavits may be introduced with the understanding that there is an obligation to produce the witness for cross-examination if possible.
THE PRESIDENT: If "available" would be a better word.
MR. LA FOLLETTE: "If available"; I think that is the term that the Court used, "if available".
I also find that in Ordinance 7, Article 4, which is a comparable section to Article 16 of the Charter, Subdivision E says that a defendant shall have the right, through his counsel, to present evidence at the trial and to cross-examine any witness called by the prosecution. That, of course, is not a clearly applicable section.
Also the defendant may apply in writing--this is Subdivision F of Article 4 of Ordinance 7--the defendant may apply in writing to the Tribunal for the production of witnesses or of documents. The application shall state where the witness or document is thought to be located, and shall also state the facts to be proved. If the Tribunal grants the application, the defendant shall be given such aid in obtaining production of evidence as the Tribunal may order.
Also, in Article 5 of Ordinance 7; which is comparable to Article 17 of the Charter, Subdivision E provides, under the procedures which the Tribunal has, as follows:
"The Tribunal shall have the power to appoint officers for the carrying out of any task designated by the Tribunal including the taking of evidence on commission."
THE PRESIDENT: What was that last word? I didn't get it.
MR. LA FOLLETTE: "...including the taking of evidence on commission".
THE PRESIDENT: Thank you.
Court No. III, Case No. 3.
MR. LA FOLLETTE: Article 7 of Ordinance 7, which is comparable to Article 19 of the Charter, also lays down the rules, with which we are acquainted, that the Tribunal shall not be bound by technical rules of evidence. It provides for the introduction of affidavits, and the last sentence is pertinent; I quote:
"The Tribunal shall afford the opposing party such opportunity to question the authenticity or probative value of such evidence as in the opinion of the Tribunal the ends of justice require."
I think, in a sense, this Tribunal's ruling has indicated some form of examination it had in mind. As to the method of this examination, I think there is a question open for discussion.
Court No. III, Case No. 3.
I now turn to Article 14 of Ordinance 7. This follows Articles 12 and 13, naturally, which, in turn, provide for the setting up of the Central Secretary General. In Article 14, Subdivision F, we find this very interesting and, to me, not heretofore properly evaluated subdivision:
"F. The Secretariat shall arrange for aid to be given defendants and the Prosecution in obtaining production of witnesses or evidence as authorized by the Tribunals."
As a practical matter apparently that -- or as an operating matter, let me say, at least that provision is not presently in operation, in that I consider that the facilities for obtaining witnesses for the Prosecution are yet a subdivision of the Office of the Chief Counsel. Ordinance 7, I am inclined to think, did not so contemplate.
Now I come to this situation. We have received from defense counsel pursuant to our request a list of the affiants whom they wish to examine who have not appeared as witnesses. I do not say that the list is completely complete. It is made up of the list furnished me by Dr. Kuboschok and also separate lists furnished by Dr. Schilf, Dr. Schubert, Dr. Koessl, and Dr. Brieger. Where there were duplications we made one composite list. I am not going to read the names. I simply say at this time that there are apparently 30 or 31 affiants altogether. Some of these requests have been made that they be examined the same man by several counsel.
Now, I take this opportunity and this method of addressing the Court because I do not believe that it is a matter in which the Prosecution either is entitled or required to make a definite motion as to procedure. I do point out that also last week it was suggested that these cross examinations should be terminated prior to the time that the defense began their case in chief. With that I an not so sure that that is completely necessary, in fairness to the defense, as other adequate methods are provided, and I will state my reasons now for that last statement.
Court No. III, Case No. 3.
The best that happens under cross examination, usually, is to tear down the credibility of a witness, in this case an affiant, or to elicit facts which lead the Tribunal to find or give an indication that certain statements made by a witness or an affiant are not true. In a sense I do not believe that any defendant or any man defending -- and I have usually defended, if I may say so parenthetically -- prepares his defense on the basis of what he will gain through a cross examination. He prepares his defense based upon the full case which is presented by the Prosecution's evidence, and whatever he gains by cross examination is, in a sense, additional grist in his mill, something that he gains in addition. I cannot see that facts which are gained from cross examination are essentially, however necessary for the defense in preparing its defense. This leads me to this suggestion, coming not for the purpose of precluding the defendants -- and they, of course, are free to argue -- that this Court has the power to appoint a commissioner or commissioners to hear these witnesses. It is also within the obligation, under the provisions of Article 14 of Ordinance 7, of the Secretary General to produce these witnesses. They can be heard by commissioners, it seems to me, concurrently with the preparation of the defense's case in the interim which this Court will grant, I am sure, and also actually concurrently with the progress of the case.
There is some example for this, although not completely analagous, of course, in the procedure which was followed in the IMT, where concurrently with the trial a commissioner heard evidence on the criminal character of the organizations which were involved. I say that it is not completely analagous, but I do not believe that there is a serious detriment to the defense if this Court appoints commissioners.
I also want to make it clear that to the full extent of the prosecution's ability as individuals -- I am referring, if I may, to myself and to my colleagues who have appeared in this court room -- we shall do all that we can to assist in the production of these witnesses. But by the very nature of things, with numerous cases running, we don't Court No. III, Case No. 3.get our witnesses here when we want them, and in fact we have used private means to get some witnesses here.