Court No. III, Case No. III.
AFTERNOON SESSION The hearing reconvened at 1330 hours.
THE MARSHAL: The Tribunal is again in session.
DR. SCHUBERT: (Attorney for the Defendant Oeschey) Your Honors:
If, in this court room, there has been much talk about the fight of justice against National Socialism, this may perhaps appear as a cheap excuse for the outsider in view of the course justice took in National Socialist Germany. But there is, in spite of it, some truth in this statement. For National Socialism was inevitably opposed to a firm legal order and an independent administration of justice in view of the extreme conduct of its circle of leaders. This, however, was never said, on the contrary, the principles of the constitutional state based on the law, were always outwardly emphasized. But today it is evident, and it became clear to all people occupied in judicial service, at least during the war, that National Socialism and independent justice are irreconcilable enemies. In this conflict, it was clear to every judicial official, which position he had to take, even if he had, earlier, by conviction been a member of the NSDAP or Party official, and this applies, in my opinion, also to the defendants in this case. They all received their juridical education and training, which is fundamental for the inner attitude in exercising the office of the lawyer, before 1933, partly long before this time, they have worked at a time when justice exercised its functions, highly respected, and with few exceptions, receiving understood recognition from the other state sections. They could never entirely lose this inner attitude which they had acquired at that time, And they would have deprived themselves of their proper professional basis, if they would have capitulated unconditionally before the National Socialistic standards of leadership.
Of the many persons entrusted with the most varied tasks in the judicial service the judge usually reacts most sensitively if he believes that his judicial independence is interfered with. This holds good for the German judge as well as for his foreign colleagues and perhaps it holds good for him in special measure as with him it was not all just honey otherwise in his profession. The State did not grant him the dignity and prestige which he deserved and which many of his foreign colleagues were enjoying as an understood privilege. He was badly paid and only very seldom did he have an opportunity for casual earnings, he was burdened with heavy work, on the other hand just as all other officials he was subjected to rigorous supervision relating to the orderly and punctual accomplishment of his official business. These were other reasons why he valued much the independence of his judicial activity whereby he distinguished himself from the majority of his colleagues in office.
For this privilege the German judges struggled during the time of National Socialism, some of them did not survive this struggle. These are however really exceptions and it has to be stated that the judges in general remained unmolested in their administration. For the inroads on justice were made in another way. First spheres of tasks which until now belonged to justice were withdrawn from it stage by stage. This happened through general decrees as for instance exclusion of or restriction on the taking of legal steps for certain civil claims, creation of the police - and SS-jurisdiction, transfer of the jurisdiction on Poles and Jews to the police, taking out of the prisons the asocial prisoners; or it happened by interfering in an isolated case, for example prevention of the punishment or pardon of National Socialist perpetrators, belated correction of sentences, prevention of entering of actions, etc.
Besides it was easy to the National Socialist potentates to enforce their will by legislation and they made abundant use of this possibility. In comparison with this the so-called directing of jurisdiction was of little significance. This expression is misleading altogether; for real directing could only take place and has taken place only with regard to the Director of Public Prosecution bound to directives. With regard to the judge, directing necessarily had to restrict itself to general instructions on specific lines which he could take into consideration when deciding an isolated case but without any obligation.
The jurisdiction of the Supreme Court of the Reich by way of the petition for nullification had a much greater influence on the judicial activity. Impossible as it was to give directives for the isolated case to the judge whose decision could always result only from the vivid picture of the trial itwas just as possible on the contrary to examine afterwards the decisions taken and to submit them to the highest court within the space of a year provided for that purpose. In this way the most essential contribution was made to the standardisation, or, as it was called in the NS - language the coordination of jurisdiction of the lower courts.
The preceding general explanations hold good to their entire extent also for the defendant Oeschey. He too was jealously alive to the preservation of his judicial independence and he found sharp words against the attack on this independence, which he saw in the speech of the Fuehrer of 26 April 1942 (my exh. 9). When examined under oath by the prosecution (exh. 580) he also stated emphatically:
"I have not felt myself an arbitrary tool of the policy of Hitler". To this statement I attribute special significance because it was delivered in December 1946 at a time when Oeschey neither knew nor could know if he should be defendant or at a probable trial against leading jurists of the Third Reich. The Party-Office with which Oeschey was charged since 1940 made it possible for him in a special degree to keep clear of the influence of Party Offices and other organizations of the State or Party and - I want to emphasize this specially in this connection - it was definitely not so that he was appointed to the office of presiding judge of the special court only for the reason that one thought one could expect from him a National Socialist jurisdiction as a Party follower for many years and holder of a Party Office but also just for the reason that he in his position could keep clear of Party-political and other influences alien to justice more easily. That he has done this for that I have mentioned significant examples of Oeschey's jurisdiction. I refer here especially to the acquittals which he has returned in political cases contrary to the tendencies of the local Party leaders, for instance in the case of Pezold (my exhibit 24), Simmermann (my exh. 25) and Schadewitz (my exh. 26). He could afford at the summary court (Standgericht) to pass sentence of death on the Party-officeholder Rupp and some days later on to acquit the obvious adversary of the NSDAP and former member of the Reichstag of a democratic party Dirscherl. That he did this is a convincing proof of the fact that he felt himself not only as an independent judge but that he was one really. At any rate Party-political views have not influenced either his jurisdiction or his relation to his collaborators as he also kept clear of any connexion with offices alien to justice as SS, SD, Gestapo, RSHA.
In all cases with which he was charged here Oeschey could show which real end judicial views were decisive for the judgment. These statements together with his explanations about the treatment of certain categories of criminals and the discharged-cases presented for erolanation in addition give a pretty clear picture of his jurisdiction: hard on serious offences especially if they were committed habitually or such which proved of a specific baseness of mentality, ease on and full of understanding for occasional offences especially if they arose from material or psychological distress, and also readily inclingd to an acquittal in a joyful spirit of resolution in the probableness of the facts of the accusation stood on a weak foundation especially if these proofs were offered by witnesses whose credibility could rightly be doubted. But always his jurisdiction was in conformity with the laws and their interpretation by the jurisdiction of the Supreme Court of the Reich.
Now the prosecution in a trial-brief submitted to the Tribunal has attempted to show that the invocation of the law has to be denied the accused judges whereby it puts on an equal footing the law and order in the sence of Article II number 4 b of law No. 10 of the Control Council. Indeed during the discussions of Constitutional and International Law before a High Court the so-called FuehrerOrder was often spoken of. However it has to be strictly distinguished between an order in the sense of the law of the Control Council and a law. Really the law contains also orders and orders to the entire population or parts of it to do something or to abstain from something, It is quite obvious that the law of the Control-Council cannot have meant such a legal order in the regulation of II 4 b.
The fact that the cited regulation expressly mentions the order of the government or of the superior shows that here it is only a matter of the administrative order but not of the order included in every legislative act. If in the discussions relating to constitutional law of this trial the ideas "Fuehrer-Order" and "legislative act" have sometimes been associated with each other a clear distinction must be made in deciding the issue of this trial as to whether the defendant involved acted under an administrative instruction or under law, irrespective of whether the latter had been enacted in the form of a law, a decree or an ordinance. What had been enacted as legislative act in due order in the Reich Gazette by the competent authorities was law in a formal sense and had to be complied with as such by the judge, He could not know the foundation or cause of such a law, if the law in its published wording was directly given by the Fuehrer, if the law was based on a suggestion, which can be regarded as Fuehrer-Order and was then worded out by the Ministries concerned with it or if this law on the other hand was cased upon a suggestion of the Ministries and was approved of by the Fuehrer. What confronted the judge as formal law he was bound to take into consideration. This applies to every State as I have proved for instance by English legal literature (my exh. 33). If one would give to the judge the authority and burden him with the responsibility of being allowed or being obliged to examine a formally and duly enacted law as to whether it complies with the principles of higher justice, ethics and international standards and if so to reject its application, one would place him above the legislator and by this shake the foundations of public order. The judge must be assured that the deliberations on the pros and cons of Court No. III, Case No. III.
the law have already been made by the legislator and that solely on the legislator rests the responsibility that the obligations in the matter of Ethics and International Law associated with the authority of legislation are complied with. The law is therefore no order in the spirit of article II 4 b of the law of the Control Council and it scarcely needs a proof that it is a mistake to establish a comparison, say, between the judge and the former Fieldmarshal Keitel sentenced in the IMT - Trial (my exh. 31 and 32).
The prosecution will also deny the judge the appeal for the application of laws because the laws have mostly been war-laws, therefore had served order and security during the war, the war, however, had been established and branded by the IMT as a prohibited and criminal war of aggression. That is a cheap argumentation. The establishment of the IMT about the character of the past war is a belated-one and surely it would be a violation of the principle "nulla poena sine lege" if today from the application of the laws enacted during the war a crime would be construed to-day because the war was a war of aggression.
How wrong this opinion is, results already from that that many of these laws enacted during the war are still applied today with the consent of the Military Government as for instance the so-called War Economy Decree and many rules about criminal procedure which aimed at a simplification of the trial and a saving of personnel. Here, Once more, I want to refer to what I have said already in my openingplea Plaidoyer, namely, that the Military Government did not regard the Nazi-laws as void not even those which prescribed the unequal treatment of different sections of the population but has abolished them expressly by special legal provisions and isolated decrees and that measures of the Nazi-authorities on account of such laws as for instance expatriation of Jews and emigrants were always acknowledged by foreign countries and are still acknowledged even today with the practical result that the pitiable victims of such expatriations have first to become naturalized again today in order to become German citizens.
Therefore things are not so simple as the prosecution tries to represent them here.
Also the question of opinion in the matter of imposing the death penalty is discussed by. the prosecution in the trial-brief. With reference to the witness Doebig (Transcript page 1793) and the defendant Schlegelberger (Transcript of 30 June 47) who to a certain extent was also instrumental in issuing the hard laws but apparently wanted to have them applied mildly it regards it as a duty of the judge to evade the death penalty. Hereto Oeschey has stated in the witness box that if the law is hard the sentences must necessarily be hard also. This is a commonplace and it needs no special proof that the hard laws must lead to an inflation of the death penalty, as the prosecution expressed it once. Will the prosecution expect the accused judges to elude the laws? I cannot believe that there is a legislator in any country who issued laws with the aim that they will not be applied and who acquiesees if the judge sabotages the published laws. The National Socialist legislator did not permit that at any rate. The judge also in not applying the law in its true spirit defeats the ends of the law i.e. a criminal act and I do not believe that this High Court expects of a defendant that he would have had to commit act threatened with severe punishment in order to behave rightly in a higher sense, an expectation, to which the IMT has answered already in the negative.
Besides there was no law in Germany which has left the imposition of the death panalty solely to the opinion of the court.
I have repeatedly emphasized in my defense argumentations and Oeshey has stated it in the witness box that there was only anostensible scope for judgment at all in the selection from several kinds of punishment prescribed by law for in reality the death penalty had to be passed if certain suppositions prescribed by the law itself ware fulfilled. Substantially the question concentrates on whether a specially severe case was taken into consideration or a less severe case was not taken into consideration. If there were certain circumstances of the offence which could lie in the realization of exterior elements of the offence as well in a special kind or intensity of the criminal will the judge had to assume a specially severe offence or to reject a less severe offence and his decision on this was examined by the Supreme Court of the Reich by way of the nullity plea as is proved especially clearly in the case of Bosch represented by Oeschey (Transcript page 8597) or in the case of Theresa Mueller (exh. 247) submitted by the prosecution but little suited for its aims. Therefore it is a matter of a question of fact as well as a question of law as was shown during the examination of Oeschey. In the decision of this question of law jurisdiction of the Special Court under Oeschey showed surely not the exclusive tendency to rigour asserted by the prosecution, on the contrary in many cases in which the death penalty was partly prescribed as compulsory, was partly in question, Oeschey did not pronounce this punishment, because it seemed to him at that time it was not laid down according to the law, therefore for instance the assumption of a specially severe case could be avoided. Especially I point to the cases in which the defendants are apt to be exonerated Guenter (Transcript page 8602), looting - 2 girls(Transcript page 8602), looting - Czechs (Transcript page 8603), Leichtl (Transcript page 3596), Fleischmann (Transcript page 8598), Wirth (Transcript page 8598), Scherr (Transcript page 8599), Koelbl (Transcript page 8600) etc.
and to exh 29 already mentioned. These cases are of greater weight than the frivously advanced assertion of the witness Doebig (Transcript page 1781) that Oeschey could have abstained from the death penalty in the case of Therese Mueller, in which Doebig did not participate at all, although the decision of the Supreme Court of the Reich had practically robbed him of every possibility as further extenuating circumstances could not be brought to light in the second trial (Oeschey exh. 22).
III.
Application of the Substansive Criminal Law.
If one examines the death penalties passed under the presidency of Oeschey the following picture results:
The so-called habitual criminals have the predominant share in these death penalties. The problem of the habitual criminal has always been a criminal problem of highest significance in all countries. Many countries have introduced special measures against habitual criminals. So for instance a law against habitual criminals was promulgated in England already in the year 1908, according to which these criminals could be taken in to preventive custody in order to protect the public. Many countries have followed this example. Also the Penal Code of Switzerland which became effective on 1 January 1942 and is therefore probably the most recent includes measures against dangerous habitual criminals who can be taken into an unlimited custody. In Germany a law against habitual criminals was enacted in 1933 after such measures had been discussed already long before 1933 in the juridical literature and also in drafts of criminal laws of the Reich Ministry of Justice (1930). This provided for two measures:
on the one side the punishment of a dangerous habitual criminal could and had to be increased and that to penal servitude up to 15 years (Article 20a Penal Code) and apart from that the court had to order security detention besides the punishment if it was in the interest of the public (Article 42e Penal Code).
This security detention had to be served after the expiration of the time of punishment; it was unlimited on principle, however it had to be re-examined in periods of 3 years each in order to ascertain if it had to be maintained or if the criminal in question could be released as improved on account of it having served its purpose.
The War Penal Code at first brought no new provisions against dangerous habitual criminals. Only in 1941 and that by the Amendment of 4 September 1941 quoted so often the death penalty was forcioly introduced against dangerous habitual criminals under certain suppositions.
The defendant Oeschey has stated in the witness box in which cases he had made use of the law of 4 September 41 in conformity with jurisdiction of the Supreme Court, namely, when a habitual criminal according to his previous life had to be regarded as incorrigible. There is no doubt that the law of 4 September 1941 was hard, as to whether it was forcibly caused by the circumstances of war cannot be examined here. It was enacted and the defendant Oeschey was obliged to apply it. That in doing this he always recklessly inflicted the severest punishment has been contested by him in a manner worthy of belief, and by citing many cases. All cases of habitual criminals produced by the prosecution have been discussed and proved by documents. There should be no case among them in which the incorrigibleness of the perpetrator in question has been wrongly assumed.
Next to the cases of habitual criminals the cases of public enemies plan an important part in the jurisdiction of the Special Court. Briefly here it is a matter of all these offences which somenow nave been caused and facilitated by exploiting the conditions of war be it by Black-Out or any other circumstances caused by the war (air attack, field-post cummunication etc.).
While in trials before the Special Court a death sentence was the rule in cases of habitual criminality, as the prosecution generally tried such cases there only if it considered the act deserving capital punishment, one has to call capital punishment exceptional punishment when reviewing the public-enemy judicature. I have substantiated this by my Exh. 29 wherein a review of a crosssection of Oeschey's administration of justice was submitted, namely those cases where documentary material was available. As the defendant has also shown by several specially chosen cases in the witness stand, which have been mentioned by me before already, capital punishment was meted out in these cases only if there was actually no alternative according to law and legal decisions of the highest court, if these acts had therefore been committed to an excessive degree or an especially sensitive spot in the war-conditioned life of the population had been touched or even exceptional baseness or meanness of character had been demonstrated, and I believe that a large measure of the sentences passed at that time were considered to be just by the population, a population which at least since 1943 when Oeschey took over as Presiding Judge at the Special Court, found itself continuously in danger of life due to the increased severity of air-attacks and thereby lost their former estimate of the value of a human life and had to lose it.
Those same people are also today, due to their distressed conditions of life, demanding the death penalty time and again for profiteers and blackmarketeers.
So Oeschey's sphere of work at the Special Court was mainly that of real criminality. Political offenses compared to those remained in the background. Cases of so-called seditious undermining of the defense spirit according to Article 5 of the Extraordinary War Penal Law offered here from the period in which the Special Court operated, are merely those of Therese Mueller, mentioned before by me already, and that of Fischer which should be quite obvious. Neither of those cases were utteranceoffenses according to Paragraph 5, Number 1, but first of all inducement to desertion (Paragraph 5 Number 2) and in the other case self-mutilation(Paragraph 5, Number 3.)
The much discussed Law against Pules and Jews played no part in Oescheys judicature either. Of the few cases against Poles tried by Oeschey at all and ending in a sentence, two were decided according to the law against crimes of violence and another verdict was passed before this law concerning Poles and Jews was issued. A fourth and last case ended in a verdict of not guilty. Further cases could not be proved by the prosecution and there should not be any further ones as Oescney's share in the cases against Poles at the Special Court was very small due to the distribution of cases, and as also has been testified to by the witnesses Ferber (Transcript Page 1420), Baumler (Transcript Page 3831) and Paulus (Transcript Page 3784). Oeschey has therefore never taken the criminal element, the measure of punishment, or the type of punishment from the law concerning Poles and Jews and his statement regarding application of Article III of the law concerning Poles in passing prison sentences (Transcript Page 8612) was merely a hypothetical answer to a question by the Court taken as hypothetical by the witness.
Justice has always been meted out to other foreigners aside from Poles while Oeschey was Presiding Judge, justice which also was applied to German nationals if they committed an offense. It is not contrary to a principle of International law, it is rather according to the law of all civilized States that the foreigner if he commits an offense in this country will be punisned according to the same law as the native committing the same offense. So if the home-laws are stringent then the foreigner has to abide by the fact that he will be treaded according to the same stringent laws to which the native is subjected. The demand that the foreigner is to conduct himself decently and commit no offense is not asking too much and is certainly no system of extermination levelled against foreigners if they are sentenced in regular court procedure and sometimes even sentenced to the limit in so far as this was advisable and permissible according to the common German Penal-law; otherwise one would come to the conclusion that the German State would also carry out a policy of extermination against its own citizens by its administration of justice, a conclusion tne impossibility of which is naturally obvious.
In its indictment and opening statement the prosecution has tried to show, that proceedings before all German Courts, and especially before Special Courts, had only been a farce, had only be a travesty of proceedings and that the laws had only been abused in order to make it appear like a trial to the defendant. This Tribunal had the opportunity to listen to a large number of witnesses in regard to the proceedings before the Special Court and I as well as my colleagues, yes even the prosecution have submitted a considerable number of documents from which conclusions may be drawn regarding this procedure.
It is very unfortunate that the Court did not have the opportunity to choose from the hundreds of available Court records some samples offhand and examine them as to the fact whether the proceedings were conducted in an orderly manner, whether they were in accordance with the code of criminal procedure and whether in every case the basic rights of the defendant which are accorded to him in every civilized country had been preserved. An examination of this kind would have convinced the Court that this had been the case; but I believe that also the cases submitted and substantiated by the testimony of witnesses and documents during the proceedings have convinced the honorable Court of the absolute regularity of the Court proceedings which took place.
The war brought about a considerable simplification of criminal procedure. Many a ruling has been dropped which had been at constituent part of the Penal Code for decades. But it has never happened that the criminal procedure as such, - at least not before the Special Court of which my client was in charge, - degenerated into a sham-procedure, and I would like to point out especially in this connection that just this formal incontestability of the Special Court's sentences forced this Court to pay special attention and care to the adherence to regulations of procedure; that is not only a nobile officium but an officium legale of final Court of appeal and no trespassing against this officium has been proved against Oeschey. The sentences passed by the Special Court were besides subject to a facilitated judicial review and later on also to the so-called nullification plea so that defects in the procedure easily could have brought about abrogation of the sentence and re-institution of proceedings.
But abrogation of sentences on account of defects of this kind have actually never occurred in Oeschey's case. Cases have moreover been offered to the honorable Court, testifying to an especially careful preparation of the hearing in court by Oeschey as for instance the case Midy (Transcript Page 3743 and Oeschey Exh. No. 18) or the case testified to by the witness Kern regarding acceptance of a very doubtful motion for evidence to be taken (Transcript Page 3807 f). On the other side charges in the affidavits offered by the prosecution regarding restrictions of the defense, especially unjustified rejection of motions for evidence to be taken have collapsed so for instance the case Bachhuber, testified to by the witness Kroher (My Exh. 113), as well as reproaches on account of alleged non-consideration of affidavits offered by Court-physicians. It has really been testified to by all witnesses here interrogated that especially Oeschey was careful and conscientious while taking evidence and while getting at the facts of a case, that he considered the points in favor of as well as also the ones against the defendant and that he tried to gain all the information necessary in order to come to a fair judgement. Instead of many I merely mention the statements made oy witnesses (Transcript Page 8807, 8817) and my Exh. 17, 19, 20, 21, 22. So the procedure before the Special Court including that before the Summary Court (Standgericht) offered to the defendant always the same rights which he can demand from imppartial proceedings, that is his own testimony, testimony by witnesses in so far as their testimony is of any value, assignment of counsel in any case where the defence cannot be expected of the defendant himself, paying attention to important testimony submitted by the defense end the passing of judgement merely on testimony offered at the hearing as permissible evidence, accordingly not the application of the documents as such especially not the police investigation material.
To this list of the defendants basic rights belongs also adherence to the principle anchored in the Constitution of the Reich that no one may be deprived of his lawful judge. The prosecution tried to prove the institition of the Special Courts directly as an example for the fact, that the defendants placed before this tribunal were deprived of their lawful judge. But it cannot be understood why the legislator may not institute Special Courts competent for certain types of offenses provided that every defendant committing an offense of this type has to answer charges before them. An institution of this kind would only become suspicious if it was established for certain individual cases. But if oy legislation a Court is established which is competent for an unlimited circle of people then no doubts on principle arise and it has always been so in the German courts constitution that Courts with different personnel became active in different stages of appeal all according to whether it concerned certain types of offenses or whether a less severe or more severe punishment was to be expected. The Special Courts were also not singled out from the existent Court-system, but they were established within the District Courts for the area under the jurisdiction of the District Court of Appeal, they were therefore part of the District Court Just as for instance the Criminal Division Court whose staff did not differ from those of the Special Courts after lay judges were not used any longer. The only difference between the Special-Courts and the Criminal Division Courts was since the beginning of the war only, that sentences passed by the Special Courts became effective immediately, a difference which in the course of the war tended more and more to disappear on account of the fact that on the one hand the nullification plea was instituted while on the other hand appeals against sentences passed by the Criminal Division Courts were curbed.
- The supposed summary jurisdiction before the Special Courts, has with few exceptions, practically been only paper-talk. A perusal of the Court records available would show, that generally 3-4 weeks elapsed between the time that the summons was served and the time of the Court action so that a sufficient period of time remained for the defendant to prepare his defense. Not once has Oeschey as Presiding Judge of the Special Court been accused of so-called summary jurisdiction.
A number of witnesses have criticised certain aggressive remarks by Oeschey at the trial. These aggressive remarks have been described in the affidavits offered by the prosecution in exceptionally strong language, - often for lack of really sweeping argumentation as to the facts. I believe that the defense reduced the impression gained thereby to the extent which is really its due.
Oeschey has admitted that he sometimes became agressive and he has also not tried to find an excuse for it as this is not compatible with his position as Judge.
By this testimony and quite a number of additional statements by witnesses (My Exh. 2, 3, 7, 8, 19,-21, 23-28 and Transcript Page 3519, 3819, 8817) I have proved however, that these aggressive remarks of his were not method and that they were really not made without reason even though in individual cases they exceeded moderation, too. The fact generally ascertained and testified to by all witnesses that the procedure did not suffer under it in the sense of an objective ascertainment of the facts of the case, reduces these aggressive remarks to the importance they really had, namely the importance of blemist.
As they had no disadvantageous consequences for the defendant they cannot possibly represent a punishable act in the sense of the law issued by the Control-Council. They are not inhuman acts perpetrated on the civilian population in line with those under Article II Number 1c mentioned examples such as murder, extermination, enslavement, violation and so on. They are also possibly not considered as such by the prosecuting authorities but have only been mentioned as evidence for unjust conduct on the part of Oeschey but for which no proof has been offered; in contrast I was able to offer counter-evidence that these aggressive remarks had no disadvantageous consequences for the defendant.
Several judges have complained about Oeschey's conduct while deliberating. Endeavoring to detach themselves from their former conduct they designate themselves nowadays as violated or even as having been under hypnotic or magic influence. May I be spared from entering into agruments regarding trivialities of this kind. A whole number of witnesses have testified that one could certainly talk to Oeschey, so for instance Dorfmueller (Transcript Page 3208 fol.), Markl (Transcript Page 8809), Moffmann (Transcript Page 8818) and my Exh. 15,16,17,18,19,21. none of the witnesses heard has testified that while Oeschey was Presiding Judge a verdict was ever reached without the necessary majority of the judges.
Individual Cases This High Tribunal repeatedly expressed its opinion that in the case of the accused judges it was not intended re-examine the material justness of their decisions in individual cases, out the regularity of the procedure.
The same point of view had already been taken by the Prosecution in its Opening Statements However, it did not keep to this rule of conduct in the presentation of their evidence, on the contrary, especially in the Oeschey case it contested in an estraordinarily great number of individual cases the material justness of the decision, particularly by way of affidavits of Prosecution witnesses submitted in great number.
Consequently the Defense was obliged to deal with these individual cases in its plea, also as regards the facts of the cases and the application of the statutory criminal law. I think that the pleas of the Defense were apt to bring the Tribunal to the conviction that the administration of the law remained in all cases within the compass of the law, this framework being, if necessary, supplemented by showing the aim of the legislator and the guiding legal decisions of the lerman Supreme Court.
1. (Cases in which foreigners were involved) In the discussion of the individual cases there can and must, in my opinion, first of all be suppressed all those for which the Prosecution neither produced excerpts of records nor submitted documents and for which the testimonies of witnesses do not produce a picture which either makes it approsimatively possible to ascertain the facts of the case and the application of the law with a probability approaching certainty.
In this connection I am thinking of two cases which were mentioned by the witness Eichinger (Exh. 227 p. 80), the presentation of which is only explicable by the endeavour of the Prosecution to show Oeschey's Judicature on foreigners in a lignt as unfavourable as possible. One of these cases is that of a Pole who was allegedly sentenced to death because of threatening a person with an axe. (Exh. 227, p. 82) and the other one that of the Frenchman Blondel (Exh. 227, p. 82). Oeschey has already explained the latter one in the stand and has, in my opinion, cleared it up.