The ministry did not pardon Grasser.
Q. Dr. Ferber, let me depart from this case and take up something different. In your capacity as associate judge in the Nurmberg Special Court after 1940, do you remember a case, a criminal case against a Jew here in Nurnberg named Lew Katzenberger for racial pollution? Do you remember such a case.?
A. Very well. Very well.
Q. Where were you in an official capacity when this case came to trial?
A. During that trial against Katzenberger himself I was an associate judge just as in the Grasser case.
Q. Dr. Ferber, did you sit on the bench through all of the sessions during which that case was tried?
A. I have not quite understood this question.
Q. Let me make it more clear. Did you sit as associate judge during the trial of Katzenberger?
A. Yes, yes.
Q. Then you are in a position, to the extent of your memory, to tell us the extent and nature of the prosecution's evidence against Katzenberger, are you not?
A. Yes.
Q. Would you then, Dr. Ferber, describe briefly what was the evidence against Katzenberger that the prosecution introduced?
A. The prosecution with the Nurnberg Landgericht District Court in the summer of 1941, with me as the presiding judge at the time of the penal chamber, the prosecution against Katzenberger alone under suspicion of racial pollution, committed with the woman photographer Frau Seiler, and decision had to be made and also a complaint about imprisonment which Katzenberger had made at that time had to be dealt with.
Q. Witness, may I interrupt you a moment. At the time, as you have just stated, when Katzenberger was indicted for racial pollution before the Nurnberg District Court, was his companion, Irene Seiler, also indicted for any crime at that time?
A. No, no.
Q. Continue.
A. Only Katzenberger himself; I received an indictment against Herr Katzenberger who was charged with having committed racial pollution evidence stated by witnesses, among others, statements by Irene Seiler, just as other statements by witnesses, and furthermore complaint about imprisonment by Herr Katzenberger which had actually been made by defense counsel.
Q. Will you describe, Dr. Feber, how it happened that after having been indicted before the Nurnberg District Court for racial pollution, as we know from evidence that has been introduced in this court in the past, Katzenberger eventually was indicted by the Nurnberg Special Court; wasn't he?
A. Yes.
Q. Well then, can you explain how and why the case was transferred from the District Court to the Special Court?
A. The Public Prosecutor, who was dealing with the case, his name was Marke, on the same day on which I, as the presiding judge of the penal chamber, had received the indictment, in the afternoon asked for the document and files back. In reply to my question why, he wanted all the documents, including the indictment, to be returned to him.
He said he was doing it at the request of Oberstaatsanwalt Schroeder, who, together with Rothaug, had a discussion, and this was demanded by the president of the Special Court that the penal chamber should send the case back so that the indictment should be made out anew at the Special Court.
Q. Dr. Feber, Schroeder, whom you just mentioned a moment ago, is that the same Karl Schroeder that you described earlier this afternoon?
A. Yes, yes.
Q. You have just stated, Dr. Feber, that the Katzenberger indictment was transferred from the District Court to the Special Court, pursuant to a directive jointly engaged in and issued by Rothaug and Schroeder; is that true?
A. Yes, yes.
Q. Why did Rothaug take any particular interest in the Katzenberger case and want it transferred?
A. Naturally, I asked Dr. Marke what were the motives for which the case was taken away from me at the penal chamber and transferred to the Special Court. Marke replied that this was due, the whole occurrence had arisen because of a demand of Rothaug who had wanted Katzenberger indicted on the public enemy law, paragraph 4.
Q. Just a moment, you have just stated that according to Marke, Rothaug wanted Katzenberger indicted under the law against public enemies; is that correct?
A. Yes, yes.
Q. Is it also correct that under that law against public enemies a death penalty was possible; is that true?
A. It was possible under paragraph 4, under the law against public enemies.
Q. It was possible?
A. Yes, it was possible.
Q. One further thing, Dr. Feber, under the statute for violation of which Katzenberger had been originally indicted at the District Court which, as you have said, was the statute against racial pollution, was the death penalty possible.?
A. Oh, no. Under that law, passed in December, 1935, the death penalty was not provided.
Q. Dr. Feber, will you now describe, after Katzenberger was transferred to the District Court, what happened to the person you mentioned, Irene Seiler?
A. For the first time it was, I heard this was in about December 1941, that Rothaug had investigations extended by the Prosecution for Frau Seiler, and that for perjury in the pre-trial investigation, under investigating Judge Groben, had admitted under oath before she made her statement, Seiler under oath had admitted that she occasionally had sat on Herr Katzenberger's lap; that they had kissed each other; but she had denied sexual intercourse.
Q. Dr. Feber, you say that in the police investigation, Irene Seiler, under oath, denied any sexual intercourse with the man Katzenberger?
A. Yes, she denied that.
Q. Did Irene Seiler later become indicted to appear before the Special Court?
A. Yes.
Q. One further question; may I interrupt again. The results of this police investigation in which Seiler, under oath, denied having had intercourse with Katzenberger, before Irene Seiler was indicted, did Rothaug, within your knowledge, see, read, or hear about the results of what Seiler said in that police investigation?
A. Yes.
Q. Make sure, witness; did Rothaug see the results of that police investigation before Seiler was indicted?
A. One moment; during the first presentation in July, 1941, the actual records of Frau Seiler at that time were already in the files and when these files were removed from the penal chamber with the intention of a later indictment before the Special Court, Marke, the prosecutor, handed these files to Rothaug for his scrutiny.
Q. Then, you state that insofar as you know and observed, Rothaug saw the police investigation report in which Seiler, under oath, denied having sexual intercourse with Katzenberger; he saw that report before Seiler was indicted; is that true?
A. Before Frau Seiler had been indicted at all for perjury -
Q. Just a moment, you anticipated my next question. I was going to ask you, witness, what was the charge for which Seiler was then indicted; you say it was perjury.
A. The witness was indicted before the Special Court for perjury.
Q. Just one moment, witness. In all your experience, first as prosecutor before the Special Court, and later as associate justice of the Special Court in Nurnberg, did you ever know of a case, other than that of Irene Seiler, where a person was indicted to appear before the Special Court only for a crime of perjury; did it ever happen?
A. No, no.
Q. The next question: Witness, how and why was the criminal proceeding against Irene Seiler for perjury joined with the criminal action against Katzenberger for a violation of the public enemy statute; how and why did that joinder take place; was that the usual procedure?
A. That was altogether unusual; it would have been in accordance with the normal and custom laws to deal with the trial against Katzenberger for racial pollution be delaying it until the penal chamber had dealt with it, or had decided the perjury proceedings against Irene Seiler. It is in accordance with custom, for example, in the case of divorce proceedings, when the proceedings are interrupted if it is said that a witness has spoken the untruth, under oath, and why in the case of Katzenberger and Seiler, for it would seem different.
Q. Dr. Feber, you have stated in the past here that you sat on the bench as an associate judge throughout the Grasser trial and throughout the Katzenberger trial; is that so?
A. Yes.
Q. Did Rothaug address the audience in the Katzenberger case in a manner at all similar to that in the Grasser case?
A. The manner in which the Katzenberger case was dealt with exceeded in my experience anything possible. In court room 600, to which admission was gained or obtained by tickets, and a considerable number of tickets were issued via party offices from where they were distributed. It was quite unusual that such an important case, anywhere as important as Rothaug made it, that such a case should be heard without the penal files having been submitted previously to the Reich Ministry of Justice. The summons for the trial dated $ and 6 March, 1942; and the date of the trial was 13 and 14 March, 1942.
There was no opportunity for the justice administration to play any part in this case. On the other hand, however, Rothaug had altogether succeeded in getting a man like the Reichsinspector of the NSDAP to attend the trial.
Q Witness. Dr. Ferber, as you sat on the bench in the courtroom upstairs which you have designated as being the one in which the Katzenberger trial occurred, did you at any time during the trial look out at the audience?
A Yes, naturally I did look at the audience.
Q You did. Would you now please tell us if you noticed whether or not -- whether or not you noticed any activities in the audience?
A In the first and second rows to the right of the room, towards the door here -- that's how I looked at it -- there sat some persons in uniform whom I personally recognized as members of the SD; in the year 1942 they were a field-gray uniform and on tho collar an SS insignia.
Q Dr. Ferber, was the attendance at Special Court trials in Nurnberg by SD personnel a usual thing in your experience?
A The attendance of SD men at Special Court trials was according to what I knew about Rothaug's relations with the SD and nothing unusual but it meant -- but it would mean a striking unusual occurrence to see SD at the Courtroom in uniform for normally it appeared in civilian cloths.
Q Dr. Ferber, did you see any other uniforms in tho audience?
A There were persons in Party uniform from the Kreisleitung and Gauleitung, the Kreis-leadership and the Gau-leadership. The Reichsinspector Oechsle was in civilian clothes.
Q Dr. Ferber, will you describe in as much detail as you can remember tho remarks addressed to this audience which you have already stated occurred? Can you describe in detail the remarks made to the audience by Rothaug?
A The remarks which the Presiding judge Rothaug made during the Katzenberger trial must be differentiated as remarks during the Katzenberger trial and during tho examination of Frau Seiler and during the examination of the witnesses -- there was a difference to be noticed between these remarks.
Q Dr. Ferber, what was this difference between Rothaug's manner of addressing tho witnesses and his manner in addressing the defendants?
A The difference which was most striking was this: the witnesses, one of the Seiler, were paid a further amount of tribute because they concerned Frau Seiler's association with Katzenberger -- they had been forced on them and had further the courage to say that to the authorities so that the shameful activity would come to an end.
Q Dr. Ferber, these witnesses which you have just described, were they prosecution witnesses or were they defense witnesses?
A They were mainly witnesses for the prosecution only they were in the courtroom. The few witnesses which Seiler had sent for herself played a very little part.
Q Can you describe, Dr. Ferber, in as much detail as you can remember any further incidents connection with Rothaug's examination of the witnesses in the Katzenberger case?
AAs far as only the examination of the witnesses is concerned, not the examination of the defendant, two statements which were put together were of particular importance. In one case a member of the audience during the trial came forth to the woman.
She had suddenly remembered that the co-defendant Frau Seiler years ago had needed the help of a Jewish attorney-at-law and then she had been given some facilities and that indicated that Frau Seiler for years in some way had Jewish associates. This was secondary and an insignificant matter and it didn't say a thing about the matter but the woman had to say that to here because she had had the courage to say something. The other statement which I remember that is a particular one is this: Witness, and that's the witness who admitted to be the one by his statements to the political police authorities said the man here, this man had hymns of praise shouted over him.
Q Witness, who sang this hymn of praise?
A The Presiding Judge, Herr Rothaug.
Q Witness, in your personal opinion, having sat on the bench throughout the Katzenberger trial and having seen all of the evidence and having come to a verdict, were you satisfied at that time or have you ever been satisfied since that the actual crime of sexual intercourse with the Seiler woman was proved by the prosecution against Katzenberger?
A The verdict never satisfied and could not satisfy.
Q Excuse me, witness, may I interrupt? You say the verdict did not satisfy you and never has. Before you continue will you answer "yes" or "no"? In your personal opinion was the crime of sexual intercourse for which Katzenberger was sentenced to death ever proved to your satisfaction?
A No.
Q Why?
A Why? The question which during the Katzenberger trial had to be decided were essentially two questions; Can one believe Frau Seiler or can one not believe her?
The other question: this one does believe her. In what decision has Frau Seiler admitted and what Herr Katzenberger had not disputed. What had to be decided here essentially was two questions: Can one believe Frau Seiler? Can one not believe her? If one takes Frau Seiler's word for the truth and what Herr Katzenberger does not after all dispute, can one assume that as sufficient to take it that an attempted or completed race pollution has occurred under law. That is partly of a factual and partly of a legal nature.
Q. And, you say, Dr. Ferber, that so far as these two fundamental questions are concerned they never were answered by the introduction of evidence at the trial to prove the act for which Katzenberger was convicted; is that true?
A. I must explain the question in this way: An immediate witness of the action of Katzenberger in the definite sexual intercourse did not exist. The question was that cf psychological proof which Rothaug had wanted, and concerning the experience of life, was sufficient.
Q. One moment, witness, would you please explain to the Court what was this psychological-evidence that Rothaug about -- what is psyche logical evidence?
A. Psychological evidence in this connection has to be evaluated or regarded as follows: Frau Seiler admitted, not occasionally, but for years, to have had friendly associations with Herr Katzenberger; that she had received presents of money; that she had received flour; that she had received cigarettes; that Katzenberger visited her; that they kissed each other; and that she had sat on Katzenberger's lap.
Q. Is that what Rothaug means by Psychological evidence?
A. The psychological evidence was -- the experience of live does not allow any other conclusion; that psychologically speaking, it is not imaginable, nothing is imaginable, but in view of these admissions, further relations, on a sexual basis, must be deduced; that is the psychological evidence.
Q. Now Dr. Ferber, if we may return to my original question which we interrupted -
THE PRESIDENT: Mr. Wooleyhan, let me ask the witness a question. When you refer to psychological evidence, do you really mean circumstantial evidence?
DR. FERBER: Yes, that is included, they are included.
THE PRESIDENT: But, there is something different in circumstantial evidence from what you call psychological evidence, is there?
DR. FEBER: There is a difference in so far as an experience of life-- in the case of Katzenberger, it was particularly offensive, it was -- he said, that a certain amount of understanding the psychology of the Jew as such -- that an understanding of racial problems as such is needed so that behind the future circumstances, which were offered, that behind that one would lock at further sexual relations.
BY MR. WOOLEYHAN:
Q With regard to the question the Court just put to you, Dr. Ferber, could you have during the period of time we talked about here, 1942, could you have the so-called psychological evidence in any other kind of a case, except one involving the racial problem?
A In many trials I cooperated, for example, at an arson case in which psychological evidence was involved -- that psychological element was used only once and in such a definite way, and in the foreground--
Q. Witness, let us now return to a question which we have not yet answered.
A. Yes.
Q. You stated before that so far as you were concerned, the act of sexual intercourse in the Katzenberger case, for which Katzenberger was sentenced to death, was never proved to your satisfaction; is that so?
A. Yes, I personally had this conclusion; that I did not draw this conclusion by sexual intercourse, had actually taken place. I and the other gentlemen did not agree on this point.
Q. Dr. Ferber, in the Katzenberger case, was there any other proved offense warranting a death penalty, assuming that the act cf sexual intercourse was not proved?
A. In the course of years, after 1935, and I was present at the general penal chamber, and several cases of racial pollu tion.
I defended these cases, some against German and some against Jews, and the Jews were naturally German nationals -
Q. Dr. Ferber, we appreciate your experience, but in the interest of time, could you confine yourself to answer this narrow question put to you. In the Katzenberger case, If you assume that the act of intercourse for which Katzenberger was indicted was not proven, then was there any other proven ground on which Katzenberger could have received the death sentence?
A No, no.
MR. WOOLEYHAN: Mr. President, I believe that completes the Prosecution's case for the day.
JUDGE BRAND: Are you excusing this witness? Are you through with the direct examination?
MR. WOOLEYHAN: We are not through with the direct examination, your Honor; we are through for the day; if the Court pleases.
THE PRESIDENT: We will suspend at this point, and adjourn until tomorrow morning at 0930.
DR. KOESEL: May it please the Tribunal, in the course of this afternoon, I was informed that my client, Rothaug is here in the prison again. I believe I understood your Honor to have said, that the Tribunal had decided that Rothaug was to return to the hospital, and I wanted to ask your Honor to make or carry out the ruling in this case, if I understood your Honor correctly.
THE PRESIDENT: We have had no knowledge of where he has been during this time and I would like to inquire now whether he has been in the hospital up to the time he came in this morning?
MR. WOOLEYHAN: Yes, he was in the hospital until he came to testify this morning and I, of course, understood your Honor directed he w as to be returned to the hospital.
THE PRESIDENT: This is the first I knew of that. That is where you desire to have him, and the Prosecution is willing for that, and the Court is willing for that.
MR LAFOLLETTE: Perhaps your Honor will direct the Marshal to return Dr. Rothaug to the hospital.
THE PRESIDENT: I have said that is the action to be taken. We will now adjourn until tomorrow morning at 0930.
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Josef Alstoetter, et al., Defendants, sitting at Nurnberg, Germany, on 1 April 1947, 0930-1630, Justice Marshall presiding.
THE MARSHAL: Persons in the courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal 3.
Military Tribunal 3 is now in session. God save the United States of American and this honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Mr. Marshal, you will please ascertain if the defendants are present.
THE MARSHAL: May it please Your Honor, all the defendants are present in the court room with the exception of defendants Rothaug and Engert, who are absent due to illness.
THE PRESIDENT: Proper notation shall be made.
DR. KOESEL (Counsel for Defendant Rothaug): May it please the Tribunal, yesterday evening I had to ascertain that the defendant Rothaug, contrary to the ruling of the Tribunal, was not at the Fuerth Hospital. Therefore I could not speak to the defendant yesterday evening. I consider that a curtailment of my activity.
THE PRESIDENT: I think that the parties are acting as rapidly as they can, so I don't think any criticism attaches to anyone. Please proceed.
MR. WOOLEYHAN: May it please the Court, before we continue with the direct examination of this witness, the Prosecution on behalf of all concerned respectfully requests a ruling by the Tribunal as to what the procedure will be for the coming weekend, that is whether or not Tribunal No. 3 will be in session Friday or Monday or what combination of those two holidays so we may know how to act and prepare for the future.
THE PRESIDENT: The Tribunal will not be in session either Friday or Monday. When we adjourn Thursday evening it will be to meet the following Tuesday morning at 9:30.
MR. WOOLEYHAN: Thank you, Your Honor.
KARL FERBER- Resumed DIRECT EXAMINATION (Continued) BY MR. WOOLEYHAN:
Q Dr. Ferber, with reference to the case you were discussing yesterday afternoon, namely the Katzenberger case, during the trial of that case what opportunity did you observe that the 68 year old defendant Katzenberger had to defend himself? Can you describe what defenses he was permitted to put in?
A The defense which the defendant Katzenberger personally was permitted was mainly destined to give an opportunity to the president to use the example of Katzenberger to tell the audience what great danger for the German nation was constituted by world Jewry as such. This was the further point in which Katzenberger was placed from the very beginning so that in his statement from the very beginning he found himself considerably curtailed. When he said that he should not constantly be addressed as a Jew, he was also a human being, the presiding judge Rothaug flung at him the words "Who is responsible for this war? And then we are to speak of human beings. World Jewry is responsible." And in that context the defendant was showered with abuse.
Q Did the presiding judge Rothaug address any of these remarks concerning world Jewry that you have just described, did he address any of those remarks to the audience as well as to the defendant Katzenberger?
A The context was this -- the defendant became the means for the purpose. The defendant was always the example. The statements were addressed to the auditorium. He also said that Katzenberger shouldn't imagine that a fairy tale in the style of Mrs. Potiphar would be believed from him here even if there still was an institution with us which considered that book -- Rothaug stated literally:
"I believe one calls this book the Bible" -- suitable literature for the German people.
Q After the Prosecution's case had been completed during the Katzenberger trial but before the final pleas and summing up by the Prosecution was there an intermission?
A The matter ended with this -- after the Landgerichtsrat was heard there was a recess.
Q Witness, during that recess was there any contact that you observed between the Prosecution and the presiding judge Rothaug?
A Yes.
Q Would you -
A That is what happened. Public Prosecutor Markl used this break, this recess, to go to the consulting room where before his plea he talked to the presiding judge Rothaug and had a discussion with him. I was able to listen to this discussion. Rothaug referred Public Prosecutor Markl to the fact that it was necessary, in view of the fact that such high Party leaders and invited guests were present, to use chosen words forgiving a reason for the indictment, chosen words, selected words, in the sense that it had to be expressed that it was a Public Prosecutor who was speaking, who in the racial question in the judgment of the point of view of the Party regarding the question of world Jewry was altogether experienced. This led to Rothaug briefly telling Public Prosecutor Markl about some points of view -- dictating to Markl some points of view. He took them down in writing, and in his plea he gave these points of view.
Q Do you mean to tell me that the presiding judge Rothaug told the Prosecutor of the penalty to demand in advance?
A In this context Rothaug repeatedly pointed out that concerning the point which he, during the whole trial, had expressed repeatedly, that is the point of Katzenberger's physical destruction, that that was a matter of course. A discussion arose between the Public Prosecutor and Rothaug only on the point to what extent the co-defendant, Frau Seiler, was to be granted extenuating circumstances for her perjury.
Q Dr. Ferber, did you ever meet Roland Freisler, President of the People's Court in Berlin, personally?
A Freisler who in 1942 was Undersecretary of State -- I did not only see him in Strassbourg but I also spoke to him.
Q When you met Freisler in Strassbourg, as you say, what did you talk about?
A The purpose of my stay at Strassbourg was a course in penal law. I had been detailed to this conference. Those who attended were introduced to Freisler. Our names were given, and also the place or court from where we had come was given. When my name was given, and it was said that I had come from Nuremberg, Undersecretary Freisler immediately spoke to me on the Katzenberger case.
Q One moment please. When you say that Freisler immediately began to talk to you about the Katzenberger case, do you remember whether it was you or Freisler that first mentioned the subject?
A I remember quite accurately that Freisler said, "Did I hear right? You came from Nurnberg" I said, "yes." Then he said, "Do you belong as a judge to the Special Court?" I said, "Yes." He said, "Do you know the Katzenberger case?" Again I said, "Yes......
Q Proceed.
A In that connection, Freisler said to me, the introduction of law against public enemies, including the Katzenberger case, was somewhat doubtful. With a smile on my face, I said at the same moment to Undersecretary Freisler, "That was also my personal view and the view of several other gentlemen in Nurnberg -- all the more so Mr. Under-Secretary; I and other participants were by the decision of the ministry surprised that the verdict was to be executed."
Q When you returned to Nurnberg from your visit to Strassburg, which you have just described, did you tell Rothaug anything concerning what Freisler had said on the Katzenberger case?
A I had all the more reason immediately to tell Rothaug about this meeting because prior to the Katzenberger trial the legal misgivings had been repeatedly put forward by me. On the first day I saw him again, I immediately told Rothaug, "Just think! I was introduced to Mr. Freisler and immediately he spoke to me about the Katzenberger case." Rothaug said, "What did he say?" I told him in the same way as I told you just now: Rothaug -- and that will remain in my memory forever -- said, with a sarcastic smile on his face, and lifted his finger and looked at me, and these were the words he spoke: "They should have dared to pardon Katzenberger!" In this connection, I had realized that during the three months of the decision concerning the execution Rothaug had not remained inactive. I should like to add -- May I? -I also reported on the event to the Generalstaatsanwalt in Nurnberg that was Public Prosecutor Engert. After the verdict in the Katzenberger case, he, within 48 hours, in reply to a request by telephone had to send the files and the verdict to Berlin to be delivered to Freisler.
When I had given Mr. Engert my account of the Strassburg meeting, he said --Freisler at the time when I handed him the files told me the same -
Q Dr. Ferber, leaving the Katzenberger case and proceeding to another subject, can you tell the Court whether or not after the beginning of war in 1939 there were many cases before the Nurnberg Special Court involving criminal proceedings against foreigners -- that is, against people who were not citizens of the Reich? That is, they were not Germans. Were there many such cases?
AAfter the complaint against Poland in the district of Oberlandesgericht Nurnberg II, Polish farm workers and in that connection infringements against the General Public Legal order occurred which regularly came before the Special Court. And in many cases-
Q What was the professional attitude of Rothaug insofar as you observed it toward defendants that were foreigners?
A Rothaug's fundamental attitude toward foreigners -- and in particular towards those from the East -- was absolutely a brutal one. Yesterday I mentioned briefly that after I had refused, he, himself, issued a Warrant of Arrest for a clergyman only because he had given a church burial to a Pole. The Pole was in every session definitely described as a human being who had been grateful that he was at all allowed to live with us. He said: "The peoples of antiquity who were victorious made the subject people their auxiliaries. It is the same again. The Pole is the Auxiliary Nation Number 1. After the campaign in the West, the Frenchmen will become the Auxiliary Nation Number 2."
Q Do you mean by "Auxiliary Nation" -
A The Hilfsvolk auxiliary. That means in analogy to Rothaug's speaking of the victorious peoples of antiquity -- people of slaves -a slave nation.
Q Under what law--or laws-- were these foreigners most frequently tried before the Nurnberg Special Court, in your experience?