The defense counsel insisted on his motion for evidence and then Oeschey used these words: "Defense counsel, you can maintain your motion but I draw your attention to the fact there is also a secret State Police." The defense counsel did not draw further conclusions from that. When defendants were abused as far as the abuse of defendants is concerned, I remember one occurrence which actually led to a criticism of the SD in the trial at Amberg against the daughter of a farmer. This was a case of a prisoner-or-war working on the farm. Oeschey at that trial used the expression: "If our Fabrikfritscherl -- that is a trivial expression -- "well, if our factory guards in these times do such things we must have a little more understanding for factory guards to do that. That if you farmers were in the court doing the same thing, that is too much." The SD, I heard that myself, through Rothaug made a report saying that it had been unfavorably received. That Oeschey had made a difference between the rural population as something of a higher standing and the woman factory workers of something inferior.
Q. In 1943 at the Nurnberg Special Court do you remember a case involving a criminal proceeding against one Theresa Mueller?
A. Yes, I do. I know the Theresa Mueller case because I, myself, for the first time as a presiding Judge dealt with that trial. That was in 1942. Frau Mueller -
Q. One moment, witness, please. Who did you say was the presiding judge in the Mueller case?
A. At the first I, myself, was the presiding judge at that time. This was what had happened: Frau Mueller had written to her son on the Eastern front and said he was to see to it that he got home safe and sound -- partly in open words, partly camouflage. She stated the fact that he was to disappear from the front. One must consider that the Mueller family came from the political front of the Communist Party. The tragic thing about that case was that the son was immature and followed his mother's request. He eventually got into the hands of the partisans. He wasn't found again living. In his luggage a letter was found. That case caused me through the Public Prosecutor's Office -- the Senior Public Prosecutor' Paulus -- that this -- in fact, it caused me to consider this was not an offense that merited the death sentence under the war-time penal order and a sentence of five years in the penitentiary was fair because the woman had led a soldier to desert.
Q. You said that you were the Presiding Judge in the first trial of Therese Mueller. Was there a second trial?
A. Yes, there was. That verdict was cancelled by Leipzig. The Leipzig verdice expressed that in a case of this kind greater gravity could be assumed if the Communist tendencies of the family had been one of the motives for the woman's actions and even exclusively consideration of a mother toward her son had played a part.
Q. But your statement that your decision in the first trial of Therese Mueller was cancelled at Leipzig -- do you mean that the Reich Supreme Court voided your verdict by a plea of nullity?
A. Yes.
Q. Well, now, will you please tell the Court what happened when the Mueller case came back for re-trial?
A. The new trial had two new judges; there remained the judge who wrote up the verdict in the first trial; a new associate judge, and the president Deschey was new. In the new trial Frau Mueller was sentenced to death. The verdict after a pardon had been refused was executed.
Q. Was any new evidence introduced at this second trial, which was prosided over by Deschey?
A. After the second trial, I only spoke to the judge who wrote out the verdict and quite briefly I mentioned the case. Everything was established again that had been established during the first trial; that is the actual facts which were based -- the facts were certain on the basis of the letters. Only during the second trial more prominence was given to the fact that Frau Mueller had acted as a Communist. That is, the emphasis on the relation between mother and son was relegated to the back ground.
THE PRESIDENT: Mr. Wooleyhan, we will take the morning recess at this time.
(A recess was taken)
FURTHER EXAMINATION BY MR. WOOLEYHAN:
Q Dr. Ferber, just before this intermission you stated that in achieving the death sentence in the second trial against Therese Mueller, Oeschey, as presiding judge, emphazied the communistic activity of Mueller, which had not been emphasized in the first trial, over which you presided. Is that correct?
A Yes.
Q Were the facts in both trials the same?
A The evidence was the same.
Q All right, thank you. In 1944 several foreigners were tried by the Special Court in Nurnberg and sentenced to death for finding and appropriating to their own use a number of food ration coupons. I regret that I can not remember the names of the defendants, but do you remember such a case?
A Once there was a case discussed among the judges. At that time I was only the presiding judge. It was a case where foreign civilian workers in the area of the Parteitag-- the Party Rally Area-
Q Witness, excuse me. By the Area of the Parteitag Rally, do you mean the stadium here in Nurnberg?
A We understood and understand so today under the Parteitag area the entire complex of the stadium where the political leaders rallied--political leaders such as the leaders of the SA--and then the fields of the stadium for competitions. There these foreign civilian workers had picked up food cards, ration cards, which had been dropped by planes, and in some cases they tried to make use of them. I know of one such case.
Q You state that these food ration cards which these foreigners picked up out there in the Party Arena were dropped from planes. By that, you mean they were counterfeit cards dropped by the Allied Forces?
A Yes, they were food ration cards which were brought in by Allied planes and dropped here.
Q Were these foreigners that you have just mentioned tried by the Nurnberg Special Court?
A They came before the Special Court to be tried for sabotage of the food situation.
Q What was their fate at this trial? What happened?
A I observed the case, and I know that Oeschey was the presiding judge and that Hofmann was the associate judge who conducted the trial and that if not all, then at least some, of these foreign civilian workers were sentenced to death.
Q Were they, pursuant to this death sentence, in fact executed?
AAccording to my recollection, yes.
Q The year before that, in 1943, do you remember another case before the Nurnberg Special Court concerning criminal proceedings against one von Praun, P-R-A-U-N?
A The case against Mr. von Praun was talked about in the Palace of Justice for a certain time because Mr. von Praun had committed suicide while he was in prison pending trial.
Q You say that this von Praun committed suicide in prison before he was tried?
A He committed suicide by hanging after a preliminary hearing the day before in the Special Court and before he was brought before the People's Court, that is to say, the Senate in Munich, for further trial.
Q You say he committed suicide after a preliminary hearing. Where was this preliminary hearing held, before a court? If so, what court?
A Mr. von Praun held a high position in the Angelican Church in Ansbach. He observed from there an air raid on Nurnberg. While so doing, he stated, in the presence of some female persons, that it was about time for the government to end the war if one were not in a position to prevent such catastrophes for the civilian population.
The female listeners denounced Mr. von Pruan to the authorities, and it came to a preliminary hearing before the Special Court in Nurnberg, where Oeschey was the presiding judge.
Q Did you attend this preliminary hearing?
A No.
Q Did any one of the officials who attended it tell you about it?
A I was told about it by the Defense Counsel, Dr. Meyer.
Q What did Dr. Meyer tell you?
A The Defense Counsel appeared to be very indignant and outraged by the accusations which were made by Oeschey to Mr. von Praun.
Q How long was it after this hearing, presided over by Oeschey, when von Praun committed suicide?
A That voluntary exit from life occurred very soon after the Special Court had decided that Mr. von Praun would have to be transferred to the People's Court. On account of the undermining of the defensive spirit, his statement was a definitely defeatist one, and to that extent the People's Court was definitely competent for the case.
Q. In 1945 pursuant to a statute signed by Minister Thierack and published in the Reichsgesetzblatt, court martials or Standgerichte were established. We also know that such a court martial was established here in Nuremberg, and we also know that Oeschey was presiding judge of that court martial.
A. Yes.
Q. Now do you remember in 1945 a case before that court martial involving a criminal proceeding against one Count Mongelas?
A. Yes, I remember that.
Q. Who was the actual presiding judge, do you know, in that case against Mongelas?
A. Oeschey.
Q. Well, how was that? I understand that Oeschy was drafted into the army in early 1945, isn't that true?
A. Yes.
Q. Well, then, how did it happen that just about the same time, that is, in early 1945, Qeschy was presiding judge in the Mongelas case?
A. The decree concerning the establishment of courts martials permitted the establishment of a court martial for a certain district, a certain area only if the Gau was in immediate danger. When that time came and when the deputy Gauleiter determined that that time had come, according to the decree, Gauleiter Hoe, according to the decree established a courtmartial and achieved with the armed forces in Wuerzburg the transfer of Mr. Oeschy, whom he wanted to have as presiding judge under all circumstances for that court martial.
Q. You say that the Gauleiter had Oeschy transferred from the army to preside over this special court? The Gauleiter did that?
A. The Gauleiter was competent for court martial in his position as Reich Defense Commissar, as so-called Gerichtsherr.
MR. WOOLEYHAN: May the Court please, the Prosecution has concluded with its direct examination of this witness.
JUDGE BRAND: I should like to ask the witness one or two questions before you conclude. Mr. Witness, you referred several times to the decree of December 4, 1941, against Poles and Jews. You identify the decree, do you not?
THE WITNESS: Yes.
JUDGE BRAND: As I recall, you also said that the enactment of that decree was a triumph for Rothaug.
THE WITNESS: Yes.
JUDGE BRAND: Now, briefly and without giving any illustrations, could you tell us to what extent prosecutions were held before the People's Court, to your knowledge, upon indictments which were brought under and pursuant to that decree against Poles and Jews?
THE WITNESS: Against Jews we had no such indictment, but very frequently against Poles.
JUDGE BRAND: Under that decree?
THE WITNESS: On the basis of that decree.
JUDGE BRAND: Could you give us any idea as to what you mean by very frequently? What proportion of your cases?
THE WITNESS: There were, according to my recollection, not too roughly estimated, but quite accurately, about 100 cases.
MR. WOOLEYHAN: May the Court please, for purposes of the record, may we ask if Your Honor in putting your question to the witness meant the People's Court or the Special Court? I believe it is the Special Court.
JUDGE BRAND: I meant the Special Court, yes. You understood it that way?
MR. LA FOLLETTE: If Your Honors please, I only want to ask a question about procedure. I understood that last week the Court's ruling was that where a defendant was absent, that if he chose, the cross examination would be delayed until defense counsel for that defendant had a chance to study the transcript. It just occurs to me that it might be a more orderly procedure if we had all of the cross examination of the witness at the sane time possibly rather than some of it now by counsel for defendants who are present, as Dr. Schubert, representing the defendant Oeschey.
I don't know, but I am suggesting to the Court that it strikes me that it might be better to have all the cross examination at one time. I want Dr. Schubert to have a chance to be heard if he thinks otherwise, or if the Court thinks otherwise. I simply wanted to know how we would proceed.
DR. SCHUBERT (Counsel for Defendant Oeschey): May it please the Tribunal, concerning the suggestion of the Prosecution I have no objection. I am also ready to hold my cross examination until such time as the defense counsel for the defendant Rothaug, according to the ruling of the Tribunal, will be able to start with his cross examination. I am also prepared, if necessary, to do so today.
DR. KOESSL: May it please the Tribunal -
THE PRESIDENT: It is the feeling of the Tribunal that we should hear all the cross examination that can be made under the ruling we have heretofore pronounced at this time. I am wondering whether the counsel for Mr. Rothaug has any wishes in this matter concerning the cross examination, if any, pertaining to the testimony against Rothaug?
DR. KOESSL: Mr. President, I have only the one wish, to inform the defendant Rothaug about the statements of the witness Ferber. On the other hand, I also wish that the cross examination take place before Easter, and I believe there should not be any further difficulties if I be given an opportunity by tonight to read the statements made by the witness from the record, and then at the latest the day after tomorrow I could make my cross examination.
JUDGE BRAND: May I ask you, Doctor, do you have any objection to Dr. Schubert conducting his cross examination now?
DR. KOESSL: Not at all, sir.
MR. LaFOLLETTE: The Prosecution has no objection to any ruling that the Court wants to make.
I simply wanted to call this matter up so we could have an understanding.
THE PRESIDENT: Before Dr. Schubert proceeds with his cross examination I have one question I would like to ask the witness. Witness, you have already told to one of the members of this Tribunal that there were probably 100 prosecutions of Poles under that statute referred to. I should like to know whether there were other prosecutions of other nationals outside of Germany, I mean, other than Poles, under that same court.
THE WITNESS: There were also cases or trials against foreign civilian workers from western states, western countries, that is to say, Dutchmen, Belgians, Frenchmen, people from Luxembourg.
THE PRESIDENT: Can you give me some estimate as to the number of such cases, other than Poles?
THE WITNESS: The proceedings against civilian workers from western countries were fewer, considerably fewer. Primarily I should say that among these 100 cases on the basis of this decree against Poles there were not only death penalties, death sentences, but, too, a small proportion of just the penitentiary or labor camps. The verdicts against civilian workers of the western states were in a similar proportion. I would say that was about one-half of that figure.
THE PRESIDENT: And of that one-half as many Poles as you have stated, what proportion of the prosecutions of nationals of western countries resulted in death sentences?
A. Very few people from western countries were sentenced to death. I should estimate the number to be about twenty.
JUDGE BRAND: In giving the figures which you have given, you were referring, were you not, to the trials before the Nuernberg Special Court?
A. Only. Only. I only referred to proceedings before the Special Court at Nuernberg.
Q. Witness, you told us yesterday that on the 1st of October 1939 you came as a prosecutor to the Special Court of Nuernberg. Is that correct?
A. 1 October 1939 as judge - no, first as prosecutor. Then at the end of 1940 I was a judge.
Q. And before that time, until July 1939, you were Public Prosecutor with the Special Court?
A. Yes.
Q. Do you happen to know when the defendant Oeschey came to the Special Court in Nuernberg?
A. According to my recollection it was before the war, that is to say, either in early summer, 1939, or around the end of 1938, the beginning of 1939. Yes, that is quite correct.
Q. What was the function of the defendant Oeschey at the Special Court?
A. Oeschey was at this time associate judge at the Landgericht and District Court Councillor.
Q. At that time, shortly before the war, did Oeschey have another position in a court other than the Special Court?
A. Before he came to the Special Court, he was a member of the Criminal Senate. After he came to the Special Court, he was in the same chamber as all the other members of that court. He was a member of the Fourth Penal Chamber.
Q. Do you know whether during the war, or during what time, Oeschey was only with the Special Court part time?
A. Oeschey had a considerable amount of Nuernberg Party work to do. He had a considerable amount of Party work to do because the competent Gaufuehrer of the NSRB had the Chief Prosecutor Denzer, for political reasons, transferred to Chrimmitschau by Minister Guertner. That meant someone had to take care of the work in the NSRB, the National Socialist Lawyers' League.
I know from a conversation with Gaufuehrer Buettner, through Haberkern and Rothaug, that the leadership of the NSRB was transferred to Oeschey.
Q. Witness, we do not want to go into detail. I did not ask you about that. I asked you whether the defendant Oeschey, during the war, and if so during what period of time, did not devote his entire time and work or could not devote his entire time and work to the People's Court?
A. Yes. Due to this activity, Oeschey could only attend one session per week, as associate judge. After he became District Court Director in the spring of 1941, according to my permanent observation, he conducted only one session per week.
Q. May I ask you, witness, what the exact period of time is during which Oeschey's attendance in court was reduced to one session a week because of these extra activities? Can you tell me when that period started and when that period ended?
A. I myself came to the Special Court at the end of 1940. Beginning with 1941 and from then on I made that observation. So the years 1941, 1942, and 1943 until the first of October are included.
Q. You mentioned before, witness, that the defendant Oeschey, for sometime, was transferred to the District Court of Appeals.
A. Yes.
Q. During that period was he at the Special Court at all?
A. During the period of his transfer to the District Court of Appeals I, for a certain period, was the presiding judge at the Special Court. Therefore, I know that I had put Oeschey in charge of one session regularly. He asked me about it one week when he was not assigned. He wanted to know why he did not have a session that particular week.
Q. If I understood you correctly, then also during that period he regularly presided over one session a week?
A. Yes, regularly. That is to say, if there were not enough cases, then there might have been a week when he did not have a session.
Q. Witness, you described the trips of the Special Court to other places. Could you confirm that at the beginning of the war a decree came down from the Ministry of Justice according to which, for reasons of economy and the preventing of difficulties arising through the state of war, witnesses, experts, and defense counsel would suggest that the Special Court, if possible, should go to the very place where the case could be tried because that would be the easiest way? This would avoid transferring or moving many people.
A. That is correct.
Q. Is it known to you, witness, that there were also other Special Courts which traveled considerably, for instance, the Special Court in Munich?
A. Yes, Munich.
Q. That is known to you?
A. Yes.
Q. Did you experience it yourself while you were presiding? Did you, according to your own good judgment, make such trips?
A. Yes. We did, with one exception, however, that I left the large courtroom which Rothaug had selected and returned to the courtrooms of the local justice authorities. I believe that Oeschey left it that way.
Q. Are you informed about that fact that during the period when the defendant Oeschey conducted about one session per week, that is to say, during the years 1941, 1942, and up to the 1st of October, 1943, the defendant Oeschey hardly made any trips with the Special Court and that he very rarely conducted sessions at Ansbach?
A. Rothaug had the habit of taking trips to Ostmark, Regensburg, Straubing, and Schwandorf himself, and he liked to send Oeschey to Rothenburg ob der Tauber.
It occurs to me that Oeschey went also to Weiden and Schwandorf during that period because I was at a session once.
Q. Could you confirm, then, that during this period during which you made this observation, that is, 1941 to 1943, the travels of Oeschey were few?
A. Yes.
Q. Could you also confirm that Oeschey, whenever he did travel, as you have explained, did not go into the large courtrooms, but into the regular local courtrooms, and that he did not select a public that was bound by Party affiliations?
A. As far as such sessions which Rothaug had arranged as presiding judge are concerned, Oeschey had no influence in determining what courtroom was to be used. If, therefore, Rothaug assigned him to a session in Amberg, let us say in the large courtroom of the city hall, then, of course, he had to conduct his trial there.
Q But as far as Oeschey -
AAs far as he was presiding judge later, I do not know where he conducted the sessions he arranged himself.
Q You said before, Witness, that you during the time when you were presiding judge, you moved from the large courtroom into the regular courtroom; and if I have understood you correctly, you mentioned that the problem was the same with Oeschey? I grant you that you personally did not experience that yourself, but you heard Oeschey talk with other people in your department and from these conversations, you should be in a position to tell me whether you know of cases in which Oeschey for reasons of propaganda went into these large halls for sessions?
A No. I do not know of any.
Q Could you tell me whether it is known to you that Oeschey had any connection with the Ortsgruppenleiters or any other party functionaries outside whom he invited to these sessions?
A I have had no such experiences.
Q Were you ever told anything about that?
A Occasionally, Mr. Pfaff, who attended a session in Ostmark told me that kind of friendly relation had been established by Rothaug with the Kreisleiter Schlemmer; however in other places, new relations were not established.
Q Witness, could you confirm that case in which Poles were defendants before the Special Court and since the Poles were essentially agricultural workers, the case was tried outside of Nuernberg?
A Yes. I can confirm that.
Q That is correct then. Can you further tell me or confirm that after 1943, such cases against Poles were no longer tried before the Special Court, but according to the then-existing laws and regulations, they had to be transferred to the police court?
A We were never informed about the legal regulations, but, the Secret State Police, the Gestapo, beginning in the spring of 1943, at the time when Rothaug was still in office, did not transfer any trials against Poles to us any more.
They dealt with them in their own way, the so-called special treatment.
Q The cases of Poles that you mentioned and the number of which you estimated to have been 100, if I understood you correctly, were from the time during which Oeschey conducted a session only once a week when he did a little travelling, is that correct?
A Yes.
Q I see. I have one final question on this point. In 1944, witness, a directive came down from the Reich Ministry of Justice which again dealt with the proceedings of Special Courts at the places where the acts were committed. That directive was very severe and advised the Special Courts that they must go to the place where the deed was committed, and then not only to the place in which there was a courtroom, but to the smallest village and have the session in open if necessary?
Is that true?
A. Yes.
Q. Do you know whether the Defendant Oeschey conducted such trials?
A. I know that the Special Court at Nuernberg, after that, did not follow that decree.
Q. Do you happen to know that Defendant Oeschey, when that directive was published or came to his knowledge, rejected it giving the reason that he was not an exhibitionist?
A. At the time, all of us just had a pitying smile for that decree because courts under local trees did not look well in 1944.
Q. Witness, I should like to come to another point. I refer to the Englbauer case which you mentioned yesterday. You told us, on that occasion that a blackout crime, was assumed?
A. Yes.
Q. The question as to whether the place, itself, was under blackout, is in doubt?
A. Yes.
Q. Witness, do you happen to know that the sentence, at that time, stated that the criminal had an advantage by reason of that fact that the place where he committed the crime was under blackout?
A. That is true.
Q. Can you confirm that that interpretation of the blackout crime was according to the jurisdiction of the Reich Court?
A. That principle had been developed.
Q. Witness, you have stated, today, that the Defendant Oeschey was continuing the activities of Rothaug. That is about what you said. According to your observations, is it not correct to say that while Oeschey presided, a more mild direction was taken?
A. When Oeschey took over the Special Court on the 1st of October, 1943, and was in charge from then on, I, myself, was so far away from the Special Court, though in the same building, that I could not get any closer information. Also, in conversation, I had little opportunity to hear about it.
I only had to attend one session per week. Sometimes, there were only two or three per month. I did hear from one or the other associate judges about the proceedings. I could not say that I have any personal observation that would count here.
Q. No. I did not assume that. I only thought that from reports of other judges, through conversations, you may have heard about it.
A. No. That would not go quite that far.
Q. Have you any knowledge about the fact that in 1944, the number of death penalties was reduced at the Special Court in Nurnberg?
A. No. I do not know anything about that.
Q. Do you know of one case in which the Defendant Oeschey attempted to avoid a death sentence by way of circumventing construction?
A. I have heard of two cases which were discussed at the time.
Q. I believe you refer to the cases of looting which occurred in Nuernberg where two young girls took part in taking goods out of a house which was seriously damaged?
A. Yes. I knew of that case.
Q. Do you remember that case?
A. Yes.
Q. Could you describe it to us briefly?
A. Well, by studying files and from reports by judges, associate judges, I heard that two young girls under 20 helped some people to get their belongings out of a building which was seriously damaged by bombs. The two girls took advantage or tried to take advantage of the situation by each taking one dress. They tried to hide the stolen dress under their own dress.
Q. What was that, witness, as far as the law was concerned?
A. The case was described by the prosecution as "looting" according to the law. I remember that. They were sentenced for "stealing" after denying the term "looting".
Q. Thank you. You mentioned another case before you. You said there were two cases.
A. The other case which left me with a lasting impression was a case which occurred sometime before that. That was a period when Oeschey was not presiding judge. He was either associate judge or acting presiding judge. It was a case in Regensburg where a woman, a member of the Frauenschaft, the Women's League of the NSDAP, on the occasion of a collection of wool during the second winter in the East, that is 1942 to 1943, the first winter was 1941-1942 --
Q. It must have been the winter of 1942, January or February. This woman stole wool from a collection. What was the punishment?
A. The woolen collection, as such, was protected by a special decree, and the death penalty was threatened.
Q. May I ask you to describe to us the term "Special Decree"? What is this concerned with?
A. The threat was expressed -
Q. May I interrupt. I only want to have an interpretation of the expression, of the term "Special Decree" -- Sonderbefehl.
A. The author of that special decree was Adolph Hitler who decided that a person who steals from the wool collection commits a crime worthy of the death penalty.
Q. That was the decree, therefore a law which had been published in the Reich's Legal Gazette....
A. Yes, yes.
Q. Will you continue?
A. Mr. Oeschey in this case -- and I don't know whether he was presiding judge or an associate judge; I could not say that with certainty, that he had something to do with it, I know. He gave her the chance that she could be punished only on the basis of stealing, of thievery.
Q. And you confirmed that in this case. The death penalty definitely was provided by law?
A. Yes, the same as in the cases of looting.
Q. Is it known to you that various sentences which were expressed when Oeschey was presiding judge were appealed against by the prosecution by nullification pleas, and considered too mild by the Reich Supreme Court, and cancelled, particularly if it was the case of malicious intent, malicious attacks instead of under mining the defenses' strength, and if that was assumed to be the case by the Special Court?
A. I, myself, had such sentences cancelled; that is, sentences of mine were cancelled, and after October 1943. I have heard that also Oeschey in one case or another made the experience that of which there are no translations.