THE PRESIDENT: When you speak of "copies" you refer to copies of the rules, I take it?
DR. BRIEGER: No, Your Honor, I do not mean copies of the rules. I mean copies of a certain suggestion, a certain motion made by the Prosecution: a more detailed description of this motion I can unfortunately not make at this moment -- give at this moment -- since only ten minutes ago I heard it was necessary to hear the essentials about this motion -- only in a few minutes shall I receive the motion at all, a copy of this motion altogether.
THE PRESIDENT: We agree with counsel that no immediate action shall be taken in this matter. We will direct the Secretary-General to make enough mimeographed copies of this motion so that the defense counsel can be fully advised of it, and we shall also direct the Secretary-General to serve upon defendant's counsel copies of the rules so we will all be in agreement about these matters. All we ask is that this matter be attended to as speedily as possible -- but not too speedily -- in order to give defense counsel every opportunity to take such action as they are entitled to take.
We shall take no further action in this matter until we are advised that copies have been made of this motion, and also of the rules -- at which time it may be taken up with the Tribunal again.
DR. BRIEGER: If I may add briefly, Your Honors... Mr. Wartena this morning was kind enough to assure me that inasfar as the rules are concerned made by Tribunal No. III -- he will see to it as quickly as possible that these rules will be translated and every defense counsel will be given one copy of these rules.
THE PRESIDENT: We have no doubt they will do just that.
BY MR. WOLLEYHAN:
Q Dr. Feber, you told us this morning that in 1940 you became associate judge on the Nurnberg Special Court; is that correct?
A Yes.
Q Did you want or desire that position?
A This transfer from the Prosecution into the position of being a judge of the District Court -- this transfer, as such, I was striving for -- yes. However, it was surprising for me when I was told that as judge I was to be transferred as judge to the Special Court.
Normally, it was a usage and pra** of many years that a prosecutor who had been appointed to be a judge -- to ** him in civil cases and not in criminal cases. After I, myself -- also during the war for a year -- still worked as prosecutor, I could expect the more to appointed for a position in civil matters. The appointment as associate judge at the Special Court could be made only by the competent president of the District Court of Appeals -- Oberlandesgerichtspresident -- who also was in charge directly of the office. The Oberpresident Doebig, and the president of the District Court Hoesch, at the time -- with them I discussed my activity as legal counsel to the District Court -- associate judge of the District Court -- and that was in the Spring, in November 1940. Oberpresident Doebig me at that time that he considered that to be of the best use that could be made of my ability, I should go to the Special Court as judge -- and would put up with Mr. Rothaug, too -- with Rothaug, too. On the contrary, he believed that I, to a certain extent, would be in a position to exercise a somewhat modifying influence on the generally known rough manner of Rothaug. There was also a regulation of the ministerial counsellor for the Reichdefense which was promulgated shortly after the outbreak of war, according to which, for the duration of the war, a civil servant had to serve in general wherever the administration told him to.
Q. Dr. Feber, you state that Doebig, president of the District Court of Appeals in Nurnberg, told you that you would be a modifying influence on Rothaug by your sitting on the same bench with him; is that true?
A. Yes.
Q. Dr. Feber, after you became an associate judge on the Nurnberg Special Court, did you personally approve all of the decisions pronounced by that court?
A. No, no; all of them approved? -- no.
Q. You did not approve of some of them; is that right
A. A number cf sentences I did not approve of, and I also expressed my lack of approval.
Q. If you did not approve of some of the sentences of the court on which you sat, why did you continue to sit as a judge on that court?
A. The question has to be answered by me in the same way as the question as to why I entered the special court at all. The administration again and again pointed out that according to the regulation of the ministerial council for the Reich defense, avoiding the tasks which had been ordered was not up to the individual. We were even forbidden to volunteer for the Wehrmacht, for the armed forces.
Q. Dr. Feber, could you have resigned from the bench?
A. I believe that an application for resignation from the service of a judge with the state would not have been heard at all during the war -- would not have been received at all. One prosecutor tried to change into another prosecution; that is, from the service with the justice department into the Reich Service, Berlin, and his application was not listened to either.
Q Dr. feber, in your personal opinion where did you think, in 1940 or thereafter, that you could best exercise the modifying influence on Rothaug that you have suggested previously? In your opinion could you best have done that by remaining on the court or by resigning?
AAccording to my knowledge of affairs I can say without conviction that in number of cases in which I alone, without Mr. Rothaug's participation was allowed to act as presiding judge, or when I had to deal with administrative matters, I could exercise a sufficiently modifying influence, and in some cases it was even possible to a very modest extent to modify one or the other, to soften one or the other sharp edge of Mr. Rothaug's.
Q Dr. Feber, if you had resigned from the bench in the Nuernberg special Court at any time after you became judge in 1940, if you had resigned and withdrawn form the bench, could you then have exercised any modifying control or effect ever Rothaug in his activities as judge?
A No, no, no -- without present in Rothaug's sphere of activity-- without being personally present, one could not exert any influence at all upon that man. That can be seen form the fact that the gentlemen of the administration of justice who were not active in the immediate sphere of activity of Rothaug could not at all exert any influence on Rothaug.
Q Will you describe now, as you remember having observed it in the day to day conduct of the court's business, the relationship between you as an associate judge on the special court, your other associate judges on that court, and the president, Rothaug?
A On the 1st of November, 1940, when I entered upon this office, I was at first only associate judge without any special duties as deputy. I had an office which also was rather a long distance from the office of Rothaug physically speaking.
The rest of the gentlemen who at that time were serving with the special court, I knew them insofar as I knew them from my period of activity as a prosecutor -
Q. Dr. Feber, let me call your attention to the question once again please confine your statements to the relationship of you and the other associate judges on the special court to Rothaug.
A. Rothaug exercised a rather dominant regime for he let nobody interfere in business matters in any way. He decided which sessions were to take place here in Nurnberg, which sessions were to be outside of Nurnberg. He did not allow any appointments for the individual cases in the sense that among ourselves we could make an agreement who should take part in what sessions, but rather, at the end of the week it could always be seen from the calendar of the sessions, and every individual had to read it on this calendar because after each case registered on this calendar, Rothaug made a remark who had to take part in the sessions of the coming week as an associate judge and the reporter; that is to say, the person who had to write down the sentence, he was also noted down.
Q. Dr. Feber, pardon me. Would, you describe the method by which you and the other judges, including Rothaug, voted on a particular verdict in a particular case?
A. Well, we have to differentiate here the following: Decisions and regulations outside of the main trial Rothaug made almost regularly himself alone. Insofar as further signatures were required a remark was made in pencil who had to affix his signature also, and thus the documents were distributed in the Chancellery by him. In this respect we are concerned with decisions regarding refusal of submission of evidence which had been made before the session or with denial of the complaint which had been made, although it was not permissible for decisions of the special court could not be appealed from; or it was a question that Mr. Rothaug had given a document to the prosecution. There were no discussions among the judges at all to the prosecution with some opinion stated on it which was contrary to the opinion of the prosecution.
There were no discussions among the judges at all before hand in order to make a decision but, as I said, Rothaug wrote down his expression of opinion and distributed it. That was outside of the session.
Q. Dr. Feber, could you or any other associate judge discuss and argue verdicts in criminal cases with the presiding judge Rothaug?
A. This question I understand as follows: We were concerned with the following: If a session was discussed, or in a session a special case was discussed, whether it was then possible to express an opinion beforehand. The expression of opinion as such was a very difficult matter. If Rothaug asked the prosecution; that is, the prosecution in a particular session if they were with him, and a judge also was there, one of the judges who had been appointed for this particular session, then Rothaug used to express his own opinion regarding the value of the crime and regularly to disagree with the prosecution. The laws which were important here in particular were not the malicious act law or any political law from the time before the outbreak of the war. These crimes were relegated into the background.
Q. Dr. Feber, may I interrupt for a moment. Could yon or your associate judges on the Nurnberg Special Court, when you differed or argued with the presiding judge, Rothaug, on a point of law or a question of guilt, how would he answer you?
A. These discussions, that is what I want to say now in conclusion of my remarks on this point, and that is that they usually ended with defiling remarks. I remember that one colleague once opposed or discussed the question whether a Pole could be regarded, or could be sentenced as a public enemy according to the decree regarding public enemies; whether it was not so that the decree about public enemies was only for Germans; whether it wasn't applicable for Germans only. This colleague, Amtsgerichtsrat Groben, Counsel Groben, was in the most harsh language told how inexperienced and legally absolutely faulty he was with such remarks; that he didn't understand anything; and that it happened to be a political question or event, that of political undermining of the foundation, and that the opinion and reasons just would have to be found in the law. This and similar lectures by the same judge brought him the ironically meant designation that he was a theoretical minded man and an absent minded professor; that he had a professorial opinion and was of no use for actual practice.
Q. Dr. Feber, did Rothaug ever state to you that he had sources of information, conclusive to a given case at bar, which were unknown and unavailable to you or any other of your associate judges; did he ever so state to you?
A. Yes, if we on our part, especially in one case which I was in charge of: Rothaug, if we disobeyed with Rothaug and contradicted him, especially in a manner regarding foreigners, of what I am thinking of at the moment -I would like to describe it briefly. A pole in Oberpfal, which is near Roding, had died. He was buried there by a Catholic priest on a Sunday afternoon at three o'clock.
Rothaug was holding a session of the Special Court here in Nurnberg. I, myself, did not have to attend this session. During a recess of the session Rothaug put a document into my hand which had come to him from the Kreisleadership from Foding with a police report of this event, and Rothaug asked me, against this priest, give an order of arrest for this priest; issue one, I looked at Mr. Rothaug and stated: What punishable act did the priest commit? How shall I give any reason for an order of arrest here? The answer of Rothaug was: Give this thing back to me; I shall show you how this will be done; and as he was going away, he expressed that I obviously did not concern myself with the regulations of the Polish question. Rothaug did indeed issue an arrest order against the priest; as far as I know his name was Froehlich, and he was a priest in Roding; and it was based upon the malicious act law, because it was a demonstration on the part of the priest with part of the native population who took part in the funeral after the Sunday afternoon service, against an idea of the RSHA, which was not very clear to us, but which had been issued by Hitler's order, according to which the Pole was legally inferior, and the funeral conducted by the priest was against this legal regulation. The ministry itself then defeated this by refusing to prosecute this priest. I have to add in regard to this case that Rothaug at that time received information also of a party nature, and about the service of the RSHA; that he talked about these; and they gave a completely different view of the Polish question than we can imagine. These sources of information were closed to us.
Rothaug referred to these sources. In this connection he spoke of political immaturity; of opposition; he put the person who contradicted him into a politically bad situation.
Q. Did Rothaug hold a position in the SD?
A. During the course of my activities as judge at the Special Court, I got to know more and more; I found out that Rothaug was a leading member of the SD. In this office here, in this building, Room 138, he received visits from the SD. When I, myself, became his neighbor, office neighbor, in Room 139, since August, 1941, I could get much further inside details in his connection with the service of the so-called Sicherbeitsdierst of the Reichssicherheitshaumptamtes, the SD of the RSHA.
Q. Dr. Feber, did you ever near of the so-called guidance conferences between the Special Courts and the Ministry of Justice in Berlin?
A. Yes, in that connection I know the following: I was in 1941, daring the first three months of the year; I sat as judge in a case, that is a judge who writes out the sentence, and Rothaug was not the presiding judge in this case, but the oldest in service at that time, but Landgerichtsrat Engert; the man was given a penitentiary term of three years. After two weeks I read in the morning newspaper the Reichsfuehrer SD announces Haeffner, and his first name I don't remember it, has been shot because of resistance. At that time, as can easily be understood in my excitement, I went to the authorities which execute the sentences of the prosecution, and I wanted to know, first, when Haeffner had been handed over to them, and secondly, why. I did not get anywhere with my inquiries in either direction; the man was shot in Flossenbuerg. Herr Rothaug was at that time our presiding judge at the Special Court. On the same day I told him about this occurrence, and expected that in some way he would be surprised about this; since the case was in his sphere of activity, I thought he would have some interest in it even though he had not been judge in the case himself.
In this connection Rothaug only said as follows: Don't pass any impossible sentences; then such things will not happen. His other expression was: Look, because he did not speak--Adolph Hitler, like I wanted to say, but, now look at the Fuehrer and then you will know how you shall judge. In this connection I said that the prosecution itself had only asked for arrest and imprisonment, so that the Ministry did not initiate this shooting; it could not have initiated this shooting at all. What was the guidance in this connection, after the request of the prosecution must have been reported and returned again. Herr Rothaug in this connection denied that the Ministry of Justice exerted or executed any guidance at that time; he said that he was not considering to receive any guidance from, for instance, a priest over in Roding. If one guides in Nurnberg, then I am doomed too; that is what he said.
The impression that I received and of the others who participated in the Case Hoeffner was that in the background behind the correction of the sentence the Oberstaatsanwalt's office must have been behind it.
Q Dr. Ferber, do you know Karl Schroeder?
A When you mention this name you mean the President of the Oberstaatsanwalt, Chief Public Prosecutor Schroeder, whose last office was the Public Prosecutor in Nurnberg?
A That's the one I mean. When did he come to Nurnberg? What year? Do you remember?
A Herr Schroeder came during the war. Herr Rothaug spoke of a terrible time, ironically, of course, that was the time when the Gau -- the Gaulieter Streicher had lost -- when the prosecution had lost its Chief Gaulieter Denzler, when he was with Haberkern and Zimmerman, even though not legally but in fact. Not de jure by de facto. They were in charge of the Gau, led the Gau in this connection in place of Denzler. Schroeder came to Nurnberg. It was in the year 1941.
Q He was brought here, you say, in 1941?
A Yes.
Q Do you know who was primarily responsible for having him brought here? For having Schroeder brought to Nurnberg as Public Prosecutor?
A Yes. While the personal connection of Rothaug for Schroeder -- they are rather extensive. They go back to the time when both gentlemen about 1933, 1934 were here in Nurnberg and working at the local court. Both of them belonged to the Tannenberbund, Tannenberg association. Their friendship extended even when they were far apart at Nurnberg and Wurzburg and Scheinfurt and when the Chief Public Prosecutor's Office was vacant Herr Rothaug by the Gau Nurnberg asked for the appointment of the the then Chief Public Prosecutor of Wurzburg Schroeder -- as Chief Public Prosecutor to Nurnberg.
I may add that Schroeder was a fraternity brother of Public Prosecutor Bems. They belonged to the same fraternity and also General Public Prosecutor Bems was not opposed to the appointment of Schroeder.
Q Schroeder then, you mentioned as having been brought here as Chief Public Prosecutor. By that is meant what? In other words, what court or courts was Schroeder responsible for the prosecution?
A The prosecution in the Langericht Nurnberg-Furth. The District Court. It had five divisions, partly public prosecutors here in charge of the division. In addition to the over-all guidance which Schroeder was in charge so he was also in charge of the Special Courts. Then Division I and addition at the end of the war he was in charge of the prosecution at the City Court.
Q Dr. Ferber, what did you observe about the relationship, both personally and officially, between Rothaug and Schroeder from 1941 until whatever date you care to name?
A It was an open secret that the public prosecutors with the agreement of their chiefs of office received counsel in the prosecution of their cases directly from Mr. Rothaug. In this manner Rothaug could already in the early beginnings of a criminal case -- he could exercise already a certain guidance and a certain direction and if Herr Schroeder believe that the treatment of a case which he had to sign was in any way political -- could in any way give remark for political doubts politically he never omitted -- he never failed to appear with all these files at Mr. Rothaug's, and to get Rothaug's opinion. It happened to me personally that as deputy of Rothaug in a clemency plea -- submission of a clemency plea, in connection with the remarks of the man in charge of the prison, the guard;I was in favor of granting a clemency plea with certain conditions but because Schroeder was afraid that the clemency plea for which he was competent was somehow political -could have some political effect, he went to Herr Rothaug and he told him these political scruples, misgivings, and also in my position which I had stated was rejected.
It was my a question of administrative matters and in this connection Rothaug told me a punishment which have been handed out will also be served. From this individual case which I mentioned here -
MR. WOOLEYHAN: Pardon me, Dr. Feber. Would you repeat once again that last statement which you said Rothaug made just now?
A Rothaug thus agreed with the objection by Schroeder He did not approve that I as deputy of Rothaug's granted a clemency plea and that the reproach he expressed to me as follows: that he said sentences which have been passed will be served. In so saying he wanted to say that sentences are -
Q May I interrupt? By that did he mean -- I don't know whether it's the earphones or what -- by that statement in your opinion, did he mean that sentence once passed had to be executed?
A Yes, had to be executed. That is correct.
Q Thank you, Dr. Ferber, you have stated previously that Rothaug on occasions shrieked at witnesses and was abusive; is that correct?
A Witnesses and defendants.
Q Witnesses and defendants?
A Yes, witnesses and defendants.
Q Dr. Ferber, did you ever witness Roland Freisler as Presiding Judge of the Peoples Court in Berlin?
A Yes, I remember a session of the Peoples Court, Berlin, and that is here in this chamber; 581 in 1942, at the end of the year or toward the turn of the year 1942-1943.
Q Did you attend that trial at which Freisler presided here?
AAt that time it was as follows: about two weeks the Peoples Court, Berlin, held sessions here for about two weeks in Room 150 in this Building. Herr Crohne and here in 581 Herr Freisler. The administration of justice in Nurnberg used this opportunity -- availed itself of the opportunity in order to show the criminal judges and all of the judges in Nurnberg to give them the opportunity to see the Peoples Court and to hear it. There was a memorandum sent to the judges and prosecutors and they were advised to make use of this opportunity.
Q Pardon me. You say a memorandum was circulated among others to you suggesting that you attend this session of the Peoples Court?
A Yes, it was a circular.
Q Dr. Ferber, from whom did this circular original? Who sent it?
A This circular came from the president -- Office of the President of the District Court of Appeals and for that very reason alone that the Peoples Court had to report to the President of the District Courts of Appeals that it intended to meet here during a designated time and that it would meet in some room.
Q Dr. Ferber, why was it -- could you explain that a little more clearly, please? In this circular that reached among the others you, and suggested you attend this Peoples Court of Dr. Freisler's. Why was it suggested that you attend?
A The motive which was supposed to induce the individual to attend the session was implied in such a way that it was said one had an opportunity to see a political criminal matter which was important enough to be brought before the People's Court, to see that task made right here. Obviously they also wanted to give us an opportunity to observe the manner of holding court in which important judges, who also had an important place at one time in the administration of justice, because Freisler had formally been State Under-Secretary in the Ministry of Justice, and he had had another position in the Ministry of Justice.
Q Dr. Ferber, you stated that you attended this session, and you saw Freisler in action? Did you say you saw Freisler in action?
A Yes, in action, here in this room, this very room.
Q In this room?
A In this room, 581.
Q Dr. Ferber, when you went to that session, in this room, and you saw the presiding judge here in action, did you learn anything new from seeing him?
AAt that time, I left the room with a rather mixed feeling. For years I had seen a man like Rothaug in action. Freisler, to be sure, had a more powerful conviction, even his gestures, with which he accompanied the session were extraordinary significant. However, I immediately noticed that during the letter -- finding out of the background of such a political criminal act, which was discussed at the time, Rothaug, that these political backgrounds were submitted much more extensively by Rothaug, Freisler give the impression of making big gestures. Rothaug, however, one always felt and was convinced that here, it was an actual example of actual fanaticism, which was often increased to brutality. So, if I should have to give a valid judgment, I would like to say that I -
DR. KOESSL: May it please the Court, I believe we have here valued judgment long enough, but I was waiting until the witness, himself, would express quite clearly that he is giving exclusive valued judgment. I therefore ask the high Tribunal to have the both phrases stricken from the record, especially to extract all questions which ask for valued judgment, which gives rise to valued judgment on the part of the witness.
THE PRESIDENT: The motion of the Defense Counsel will be overruled.
Q Dr. Ferber, in 1942, when you were an associate judge on the Nurnberg Special Court, do you remember a case in which Rothaug was the presiding judge in which the defendant was named was Friedrich Grasser?
A Yes, I remember.
Q Did you have any official relationship to that case? Did you appear on the bench on that case?
A Yes, the case Grasser. I experienced it as an associate judge, and later after the session, I had to execute the sentence, to write it up because the person who was supposed to do that originally, was -- it was a sentence to which Dr. Rothaug did not agree. He thought it was not good enough.
Q Dr. Ferber, what was the verdict against Grasser?
AAs far as I remember in July 1942, Grasser, because of a political statement, which was the basic characteristic, was regarded as a malicious act and he was sentenced to death.
Q You say that Grasser was sentenced to death?
A That is correct.
Q Was a death sentence legally possible under the statute for violation of which Grasser had been indicted?
A The question, Mr. Prosecutor, can be answered in the following way: Possible or to make possible -- yes, it could be made possible in the manner in which Rothaug had ordered, according to paragraph 4 of the Public Enemy Decree, and also according to the Special Penal Code for Wartime -
Q Dr. may I interrupt one moment. What was the statute for violation of which Grasser was indicted?
A That was the Malicious Acts Law, and a crime according to paragraph 2 of the Malicious Acts Law.
Q Now, Dr. Ferber, under that statute was a death penalty possible?
A Impossible.
Q Impossible?
A Yes, it was impossible, not possible.
Q And, yet, Grasser was sentenced to death, you say?
A It is an unusual circumstance which I would like to explain in its proper context.
Q Witness, we are trying to clear up how it could happen that the statute under which Grasser was indicted did not make a death penalty possible, and, yet, Grasser was sentenced to death. How was that possible? How did that happen?
A Yes, I would like to say first, that the Oberlandergericht, district court of appeals in Munich had sentenced Grasser to two years imprisonment in advance, before he came here because of treasonable activities. Grasser was a member of the Communist party. The penalty -he had received the sentence about 1935, and immediately following this he had to be in a concentration camp for three years. In 1939 he was discharged from the concentration camp and came to Nurnberg to a defense industry. It is important to know this, that in the defense industry there were also foreign civilian workers in the year 1940, who were committed for work there. In his place -
Q Witness, you may cut the facts of Grasser's case which you are now recalling. You may omit those. We are merely asking how Rothaug as presiding judge, achieved the death sentence under a statute, indicting this defendant, in which no death sentence was possible. We are merely asking you on that point, how legally a death sentence occurred?
A It was possible in the following way because Rothaug returned the document, the file to the Prosecution only because the indictment had been served because of violation of the Malicious Acts Law. He appointed a defense counsel and informed the prosecution that paragraph 4 of the Public Enemy Decree made this malicious -- transformed this malicious act into a special criminal act. So, by way of including paragraph 4 of the Public Enemy Decree, Rothaug brought about that sentence, that it could be pronounced.
Q What penalty was demanded for Grasser by the prosecution?
A The demand of the prosecution for a penalty in the case Grasser, was up until ten minutes before the plea of the prosecutor, in no way thought the death penalty.
Q Up until ten minutes before the prosecution's plea, what was the attitude -- was it a death penalty or not. I do not understand you.
A No, the prosecution obviously wanted a term of imprisonment and in no way, under no circumstances a death penalty. Even the Ministry had been informed about the intentions of Rothaug, and the Ministry told the general public prosecutor that the public prosecutor, in this session, should not be instructed to ask for the death sentence.
Q. Did the Public Prosecutor later ask for capital punishment?
A. The demand of the Public Prosecutor in the plea was for a death penalty, and that was so for a special reason, for a very special reason.
Q. Witness, what caused the Prosecution to change their minds ten minutes before trial as to whether or not to demand the death penalty?
A. The reasons for this were as follows: In the session on the initiation of Rothaug, or on the request of Rothaug, Deputy Hoez was present, who actually was acting Gauleiter at the time and was in charge of executing the affairs. In addition to Hoez a number of important Party members were present. The SD was also represented -
Q. Witness, excuse my interruption. Where was this meeting to which you refer?
A. It was one floor above us, in Room 600.
A. It is not clear what sort of a meeting that was. Was it an initiation or a court session?
A. That was a court session, in a large extent. The case had been announced in the press and the arrival of the Gualeiter for this court session had also been observed. It was a meeting with a big public announcement.
Q. You say that in addition to the Gauleiters, numerous other party officials and SD members were present; that is true, is it?
A. Yes, they were present. That is correct. Also the office chiefs of the Nurnberg legal authorities.
Q. Well, witness, are you inferring that the presence of these officials and Party members had something to do with the change of the Prosecution's plea to a death sentence?
A. Yes. This presence was told to the Ministry by telephone during the course of the session -- it was reported to the Ministry, and this was done in such a way that Rothaug, during the entire conduct of the session, expressed in very short terms that Grasser will be sentenced to death. Thus the sentencing had been announced and the General Public Prosecutor wanted to be told by the Ministry whether it should be accepted that the Prosecutor in charge of this session should, in spite of this, only ask for a term of imprisonment.