Q I have just handed you the Sauer files. The Prosecution has charged you with several points, saying that you knew what treatment was accorded to the inmates of concentration camps; any way, the Prosecution stated that you knew that prisoners of the administration of justice were transferred to the Gestapo prisons. Would you please turn to page 17; it is the back of that page again.
A Yes.
Q If I remember rightly, during the cross examination you stated that the files of the Heubeck case, which you have been discussed a great many times, were included with the Sauer files.
A Yes.
Q Who ordered that was to be done?
A The referent, public prosecutor, Dr. Hoffmann.
Q When was that order issued?
A On the 7th of September, 1942.
Q And were the files put together -- were they attached?
A Yes.
Q You will find a pencil note there.
A Yes.
Q Will you turn to page 18 there. Can you see from page 18 whether and when the Houbeck files were again removed from the Sauer files?
A The same prosecutor, three days later, on the 10th of Sept. 1942 ordered that the Heubeck files were to be returned, that is to say, they were not available to the court when the court made its decision on the Sauer case.
Q Herr Oeschey, let us assume for a moment that the files had bem examined again. I am now showing you Prosecution Exhibit 559. Would you please turn to page 6; please tell us when an order was made in connection with the Heubeck case that it was to be transferred to the Gestapo.
A On the 24th of September, 1943.
Q And now will you have another look at the Sauer files. Will you turn to page 64 and will you tell us when the verdict was passed?
A On the 27th of May, 1943, that is to say, about five months before any how, at a time when Heubeck was still serving his term in prison, that is to say in a prison of the administration of justice.
Q Now, will you turn to page 23 in the Sauer files, please. Is that the letter which the Prosecution put to you in the cross examination?
A On page 23 there is a letter from the concentration camp Dachau, dated 16 October, 1942?
Q Who is that letter addressed to?
A To the Gestapo at Nuernberg.
Q Something is mentioned in that letter; you have referred to it already. Something is mentioned to the effect that concentration camp inmates had been injured by throwing them into a wash basin. Can you see from that letter what is correct as to the statements by the defendant Sauer during his trial?
A Concerning that instance it says in the letter that on the 23rd of February, 1939, an inmate after he had a bath for an hour and thirty minutes had died in the bath tub. It also says that he had not been ill-treated by the guards but by two co-inmates, who by sentence of the court of Assizes in Munich on the 28th of June, 1939, were sentenced to ten years in the penitentiary.
Q Do you remember, Herr Oeschey, whether in the course of the preparatory work which you did when you looked through the files, whether you found anything that might lead you to believe that Sauer had really been subjected to severe treatment during the interrogation by the police?
A No, I didn't.
Q Do you mean to say you can't remember; or, that you couldn't find that?
A No, I meant to say that I didn't find anything pointing to that. Otherwise, I would not have attached any importance to the confession by the defendant Sauer; I would not have through it proper to use that as a basis for convicting him.
Q I have now put the Schoenbaum files before you. Can you tell us who wrote the opinion?
A In the Schoenbaum case, Landgerichtsrat Meyer, M-e-y-e-r, composed the opinion.
Q On the basis of what legal provisions was Schoenbaum convicted?
A On the basis of Article I of the Malicious Acts Law.
Q Please turn to page 9 of the files, and tell us what legal provisions the Gestapo wished to be applied.
AArticle II, Section 1 of the Malicious Acts Law.
Q Which of the two provisions mean the most severe penalty?
AArticle II.
Q If I understand you correctly, it was you who applied the milder provision?
A Yes. The milder provision was applied -- the more lenient provision was applied.
Q The Prosecution has mentioned the Etcheverria, E-t--c-h-e-v-er-r-i-a. Can you remember whether Etcheverria at his trial defended himself by stating that he was still a prisoner of war?
A No. Etcheverria stated that in July, 1943 he had been discharged, as a P.W.
Q Did he have a defense counsel?
A Oh, he must have had.
Q I am now showing you Prosecution Exhibit 582. Will you tell us briefly, please, whether according to the verdict the defendant Etcheverria had used the articles which he had stolen for his own use; or, what did he do with them?
A The defendant Etcheverria, according to the verdict, sold all the articles which he had stolen in the black market, and the proceed were about five thousand marks.
Q The Prosecution also put the Zollner case to you. Can you tell us quite briefly what sort of an offense Zollner had committed?
Court No. III, Case No. III.
A. I do not recollect any details of that case. I didn't see any files, but Zollner was convicted under Article I of the war economy regulation because he had sold corn on the black market and it had a very high extract rate.
Q. In connection with the Zollner case, the problem of the so-called sound sentiment of people was discussed under cross examination. When that concept was introduced into legislation, did you consider that anything novel?
A. It might have been something basically novel inasmuch as in previous legislation that phrase had not been used.
Q. After that concept was introduced, did you interpret the law differently from the way you had interpreted it before?
A. No. Well, really that matter of the sound instincts of the people is a matter of course finally; the legal instincts of the reasonable human beings are the decisive thing.
Q. The affidavit which is now Prosecution Exhibit 580 has been submitted to you. Are the statements that you made in that, are they to be understood in the same way? You will find that sentence on page 3 of the affidavit.
A. Yes, that was my opinion and that is my opinion also now concerning the concept of the sound instincts of the people.
Q. In connection with those affidavits, a letter written by you has been discussed, a letter which you wrote to your brother in 1942. In that letter you say that influence was now being exerted on the judges in individual cases. Were you referring to a certain case when you said that?
A. I must have thought of some case, some concrete case, but I can't tell you now what case I had in mind.
It may be that I was thinking of the case in Oldenburg.
Q. You mean the case which formed the basis for Hitler's speech in April, 1942?
A. Yes, I do.
Q. Were you ever asked to decide in a case according to directives?
A. In a concrete case it never happened.
Q. Would you have another look at your own affidavit, page 4, and would you read out the sentence which starts on the sixth line from the top.
A. Do you want me to read the sentence -- I did not consider myself a tool of the Hitler government?
Q. That is the one I mean; there are a few questions concerning this affidavit -- page 1, the fourth paragraph near to the bottom.
A. Yes.
Q. There you say that on account of the threat of the nullity plea the judge was no longer an independent judge. Please comment on the matter briefly.
A. First of all I must point out that this affidavit constitutes merely the extracts of an interrogation which lasted for about three hours, an interrogation concerning the position of the judge that is. The fact that in this affidavit the nullity plea is quoted to explain that the judge no longer was an independent judge leads me to point out that at the time of my interrogation I did not only quote the nullity plea but also quite generally, starting with the attacks in the press in such papers as the Schwarze Corps and the Stuermer, and to general directives issued by the Reich Ministry of Justice to the judges, guidance letters; individual criticism which was again and again leveled;
guidance discussions, nullity plea, the extraordinary appeal. I must point out that all those points pushed the judge into a position which according to my opinion--- and that is still my opinion now -- it was at the time when I composed the affidavit, all that meant that the judge no longer held the position of an independent legal judge -- if I may put it that way.
THE PRESIDENT: May I ask you a question. You have been referring to an affidavit, and I was under the impression that the interrogation related to your letter to your brother. Will you correct that for me. What affidavit is it that we're speaking of?
A. Just now I was asked a question about the affidavit.
THE PRESIDENT: Which affidavit was that?
DR. SCHUBERT: That is the Oeschey affidavit which was introduced in the cross examination and it is Exhibit 580, Prosecution Exhibit 580.
THE PRESIDENT: Thank you; that is what I want.
BY DR. SCHUBERT:
Q. On page 2 in your affidavit there is a sentence -"if we did not adhere to those directives out fate would have been the concentration camp." Did you mean to say by that that the Minister of Justice would have sent you to a concentration camp; or, what did you mean to say by that?
A. That sentence is in my affidavit in connection with the Hitler speech of April, 1942, and I introduced that sentence by first pointing out that in that speech and even also in the regulations passed at the Reichstag after the speech had been made, we were threatened with criticism and subject to penalties if in the view of Hitler we would not interpret the laws in the way in which they had been concieved;
that is to say, I did not mean to state that the Reich Ministery of Justice would send a judge to a concentration camp, but naturally Hitler. There is a matter I should like to correct in connection with this affidavit. It is in the next paragraph where I mentioned the guidance meetings, guidance conferences. I say in my affidavit that those conferences were introduced in 1943 or 1944. Evidently I made a mistake, and I now know that those conferences were introduced in 1942.
THE PRESIDENT: Can you state the date more fully in 1942? Can you give us the date more fully as to when they started in 1942?
A. Your Honor, I am afraid I can't do that at the spur of the moment, but I think it was during the latter months of the year 1942. The order concerning the guidance conferences has been introduced here as a document here in this trial.
BY DR. SCHUBERT:
Q. Witness, you have been asked whether the Reich Defense Commissar was subordinated to Himmler, the Reich Minister of Interior. I am now going to put to you the decree concerning the appointment of Reich Defense Commissars. Would you please read Article II, Section II.
A. Decree on the appointment of Reich Defense Commissars, dated 1st of September, 1939. Reichsgesetzblatt, Reich Law Gazette, page 1565. Article II, Section II of this decree says the Reich Defense Commissars are in the Wehrkreise Military Districts the executive organ of the cabinet; they have to obey the instructions of the plenipotentiaries for the Reich Administration and Economy, as well as the Supreme Reich Authorities.
Q. Thank you. Who was the president of the Ministerial Council for the Defense of the Reich?
MR. WOOLEYHAN: I object, Your Honor, to his reading just a portion of this decree; have him read all of it. He stopped in the middle of a sentence.
THE PRESIDENT: Will you read the rest of the sentence, please?
BY DR. SCHUBERT:
Q. Will you read the whole of that paragraph, please.
A. It goes on -- and are subordinate to the supervision of the Reich Minister of the Interior.
Q. Go on.
A. The supreme Reich -
THE PRESIDENT: That is sufficient; counsel has indicated that is sufficient. That is all we want.
BY DR. SCHUBERT:
Q. Now, will you answer another question. Who was the chairman of the Ministerial Council for the Reich Defense?
A. As far as I know, it was Goering.
Q. Witness, the Gottfried case was then put to you. Can you remember whether the public prosecutor made any difference in connection with the sentences for which he asked for the three defendants in that case?
Court No. III, Case No. III.
A. I am not absolutely positive but I think he asked for the death sentence for all three defendants.
DR. SCHUBERT: I have no further questions.
BY THE PRESIDENT:
Q. Just one question, witness. You have several times given us your idea as to the meaning of the phrase "Sound Sentiment of the People", when used in statutory enactments. Isn't your opinion that the party in it's authoritative pronouncements interpreted and explained what was meant in the statute by the sound sentiment of the people?
A. Your Honor, one can't say that just in this way. This term, this expression, "sound sentiment of the people", well, many people gave their views on that concept and many party people did, too.
Q. I am asking a legal opinion from you, not what many people thought the phrase meant but what you as a lawyer think it meant, and I am asking in substance if you mean to tell us that in your legal opinion there was no connection between the official party policy on the one hand and the statutory phrase "sound sentiment of the people" on the other, you think they had no connection with each other at all?
A. I did not assume that there was any such connection. By sound sentiment of the people I always meant that by that term the law intends to say that if according to the sound reasonable legal thinking of decent average citizens of our State a certain action was particularly disgraceful so that a certain verdict has to be passed.
Q. And you didn't think that the official position of the party was relevant in determining what the Judge should find was the sound sentiment of the decent people of the community?
A. I do not know of any opinion of the party concerning this idea, this term, this concept.
Q. No, I am not asking that. I am asking you if when a Judge had to decide what was required by the sound sentiment of the people, he did not consider the Nazi party idealogy in determining that question?
A. No.
Q. You don't think so, all right?
A. No, quite so.
DR. SCHUBERT: May the witness withdraw.
THE PRESIDENT: Yes, he may be excused. Call your next witness:
DR. SCHUBERT: My next witness is Hermann Markl.
BY JUDGE HARING:
You will hold up your right hand and repeat after me the following oath:
I swear by God the Almighty and Omniscient that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
You may be seated DIRECT EXAMINATION HERMANN MARKL BY DR. SCHUBERT:
Q. Witness, please tell the court your name and tell the Court what your profession is?
A. Hermann Markl, public prosecutor, retired, 39 years of age, married, residing at Argelsrieth, post-office Gilching.
Q. Witness, did you ever belong to a Nazi party organization or an associate organization?
A. I belonged to the Nazi party from 1 May 1935 until the end; I belonged to the SA until the 1st of April 1935.
I had been in the SA from February 1934 and from the 12th of August 1933 I had been a condidate for the SA. I belonged to the NSV from the 1st of August 1935; to the NS Lawyer's League I belonged since the 25 of July 1933; to the Reich Air Protective League I belonged since the 1st of April 1937, and to the Reich Colonial League since the 1st of September, 1937, to the SD since 1942 I occasionally gave legal information of a general nature.
Q. For how long did you work with the Prosecution at Nurnberg and in particular with the prosecution at the Special Court?
A. I worked with the Prosecution at Nurnberg since the 1st of April 1935 until the end. I was discharged after the end of the war. At the Special Court in Nurnberg I worked as a Public Prosecutor since approximately June 1939.
Q. During the time when you were in Nurnberg were you ever promoted?
A. No, I wasn't.
Q. Can you tell us why during that comparatively long time you were never promoted?
A. I passed my examination with a good note and I think I did well in my work. I have means of proof that the reason I was not promoted was the fact that I was a Roman Catholic. I adhered to my faith and, therefore, I was considered tied to the Church and not reliable politically speaking.
Q. How long have you known the defendant, Oeschey?
A. I have known him since he worked with the Special Court at Nurnberg and I believe that is since 1940.
Q. Did you work as a Prosecutor when Oeschey was the presiding Judge?
A. Yes, I did.
Q. Did you find that Oeschey at the opening of a trial had prejudice against the defendant?
A. No.
Q. Did you ever hear Oeschey say: We will put your head before your feet?
A. No.
Q. Was Oeschey well prepared for trial when he arrived?
A. I always felt that Oeschey completely mastered the material.
Q. Did he at the trial go into the facts thoroughly?
A. Yes, he did.
Q. Did he give consideration to both elements, both in favor and against the defendants?
A. Yes, certainly, he examined the facts of the case exhaustively in every direction and evaluated them accordingly.
Q. Did this Special Court when Oeschey was the presiding Judge decide motions for evidence by the defense from an objective view point?
A. Yes.
Q. Were such motions for evidence frequently rejected as irrelevant?
A. Yes, that is right. That happened very frequently in German procedure before the regular courts, too, and that is due to the fact that in German procedure, the Judge, as well as the Prosecutor, at every phase of the proceeding is under an official obligation to examine whether the evidence If in favor of or against the defendant must be produced. If the Court or the Public Prosecutor thinks it necessary to produce further evidence, such evidence was procured officially, and, therefore, the defense only had a relatively small scope on its part to procure additional evidence and to make the necessary motions for such evidence. If such motions were relevant they were allowed, but as a rule they were not relevant and then they were rejected.
During all of the years of my practice before ordinary courts I saw that happen. It was not different with Oeschey.
Q. As a Public Prosecutor did you often discuss masters with the Special Court concerning the sentences for which you were going to ask?
A. Yes, I did.
Q. That was done frequently?
A. That was done within the framework of the instructions which had been issued to us.
Q. During such discussions did you feel that Oeschey at that moment had already completed his verdict?
A. I should be sorry for a Judge who when all the evidence has been produced has not yet formed his opinion of the outcome of the trial. At that moment just as the Puolic Prosecutor and the Defense Counsel, the Judge must have formed his opinion. It is merely his task, on the oasis of the statements of the Public Prosecutor of the Defense Counsel and of the defendant, to discuss with his associate Judges that view for it's correctness and so to arrive at a final judgment. Oeschey was a Judge who was quick to make decisions in that way. Certainly he had already formed his opinion.
THE PRESIDENT: We will recess until fifteen minutes from now.
(A short recess was taken.)
THE MARSHAL: The persons in the Courtroom will be seated.
The Tribunal is again in session.
THE PRESIDENT: You may proceed.
DIRECT EXAMINATION BY DR. SCHUBERT:
Q. Witness, did you finish answering the question about the discussions between judges and prosecutors?
A. I only wanted to say that in my opinion, Oeschey did not have a prejudiced opinion out an opinion, a general opinion, when he entered the deliberation. That is in my opinion now it was, aside from very clear cases where there couldn't be any doubt about the punishment.
Q. Witness, I ask you again to make a short pause before answering my question after I put the question. In these conferences, was Oeschey open to different opinions on the part of his associate judges or the prosecutors?
A. Yes, though he was able to state his opinion quite clearly.
Q. Is it known to you whether Oeschey had tried once to exert any influence on the prosecution in order to bring about an unjust sentence?
A. No.
Q. Was there any sentence pronounced by Oeschey which you had heard, or did you observe any violation of the rules of procedure which you would call defeating the purposes of the law?
A. No.
Q. Witness, according to the decree, the publication of the so-called modifying decree of the year 1941, how were the cases of so-called habitual criminals treated by the prosecution?
A. There was a general directive for the district or rather for the District Nurnberg of the prosecution according to which all prosecutors and also the Senior Prosecutors from out of town had to submit all cases to the Special Court where they considered paragraph 1 of the amended law applicable. Accordingly, always together with the inquiry as to whether that amended law was applicable or not, the files were submitted to Department 1 of the Prosecution-Nurnberg. Then the case was handled in a way that the referrent made the remark on the file that the law was possibly applicable, that he took over the case, or that he stated that it was not applicable and returned the files of the case.
Q. If I understood you correctly then, the way it was handled was that the prosecution, after the publication of the amended law "Aenderungsgesetz," if he had filed an indictment in cases of habitual criminals before the Special Court always had to expect a death penalty?
A. Yes.
Q. Witness, quite briefly, I want to discuss a few individual cases with you. These cases always ended in - death sentence. The prosecution in many of these cases already expected death sentences. Can you briefly explain what reasons were given at that time for the severity of the penalty?
A. We expected already-the wartime penal legislation already provided extremely severe penalties in order to reduce the amount of criminality which according to experience increased in wartime.
THE PRESIDENT: That general matter such as he is now referring to has been repeatedly covered by many witnesses, the general circumstances which in the opinion of the authorities required severity have been exhaustively presented.
BY DR. SCHUBERT:
Q. Witness, before I discuss these individual cases with you, could you please tell me whether you had an opportunity before you were heard here now to refresh your memory by looking through the court files?
A. Yes.
Q. Were you prosecutor in the case of Jankovic?
A. Yes.
Q. In that case, did the prosecution make a motion for the appointment of a defense counsel?
A. No, the referrent in that case did not request that a defense counsel be appointed.
Q. Why wasn't that done?
A. According to the legal situation, one did not have to do it. One could refrain from doing so if the defendant confessed, if the legal circumstances were clear and if it was not difficult -- if the defense did not raise any objection.
Q. Were these requirements given in the case Jankovic?
A. Jankovic was a man who had committed burglary in cellars. He confessed, the act he had committed was considered a very severe case. At that time, burglaries committed in cellars were considered the same as looting because they were directed against the stock of the property of the nation which the people in order to save it had hidden in cellars.
Q. In the case Jankovic, did the prosecution expect to demand the death sentence?
A. I have found out that there is a notation in the file "it is intended to demand the death sentence."
Q. Now I come to the case Kaminska-Wdowen. Can you tell us what the demand was that the prosecution wanted to make with regard to the penalty?
A. This must come from the fact that twice according to the files the motion was made that the two defendants should have defense counsel appointed. I assume that the prosecution in this case also expected the death sentence for both defendants.
Q. Witness, according to what provision was Kaminska indicted?
A. The Kaminska-
Q. You don't have to discuss the details.
A. According to Article I of the decree against Poles for having attacked a member of the German Armed Forces.
Q. And Wdowen?
A. Wdowen? Wdowen was indicted for abetting and for a crime according to Article IV of the Public Enemy Decree.
Q. Could you find out whether the sentence was pronounced based on these provisions?
A. I have found out from a study of the files that Kaminska was sentenced on the basis of the decree against violent criminals and Wdowen on the basis of Article IV of the Public Enemy Decree. The case against -
THE PRESIDENT: The record in the Kaminska case in the decree is in evidence, isn't it?
DR. SCHUBERT: I don't know whether all of it has been submitted in evidence.
THE PRESIDENT: If it is, we can read it just as well as the witness, and have read it.
BY DR. SCHUBERT:
Q. If I understood you correctly, therefore, witness, kaminska and Wdowen were not sentenced on the basis of the penal decree against Poles?
A. No.
Q. Witness, do you happen to remember a case Kwasnik? The case of a Pole who had committed a case of abortion with
THE PRESIDENT: Counsel, if there is any portion of the decree in the case to which you just referred which is not in evidence and which this witness is testifying concerning, then we want to have it in evidence. There is no reason for taking verbal testimony concerning a matter which can be conclusively determined by the record.
DR. SCHUBERT: May it please the Tribunal, I apologize. I have come to another case already. I have passed on to another case, a case which sounds similar. It is a case Kwasnik.
BY DR. SCHUBERT:
Q. I ask you, witness, whether you know the case?
A. Yes.
Q. Do you happen to know whether in that case Oeschey was presiding judge?
A. I could not say that.
Q. Do you know anything about the case Guentner?
A. Yes, It was the case of a woman who was indicted for stealing from the wool collection or the winter clothes collection.
Q. All right, witness. Can you tell me with regard to that case whether the fact that woman had certain merits for the NSDAP, for the party, whether that fact played an important role in the trial?
A. From the purely human point of view, the fact was essential that it was a mother of many children. I don't know how many. Her work for the party did not play an essential part. It is true that they were mentioned in giving the reasons for the sentence pronounced.
THE PRESIDENT: Is the sentence in evidence?
DR. SCHUBERT: Not yet.
THE PRESIDENT: It is not?
DR. SCHUBERT: Not yet, your Honors.
THE PRESIDENT: It is very much preferable that we see these sentences rather than hear verbal testimony about what was said.