THE MARSHAL: The Tribunal is again in session.
MR. WOOLEYHAN: May it please the Court, the Prosecution calls as witness one Franz Gross.
FRANZ GROSS, a witness, took the stand and testified as follows:
JUDGE BLAIR: Hold up your right hand and repeat after me the following oath; I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE BLAIR: You may be seated.
DIRECT EXAMINATION BY MR. WOOLEYHAN:
Q. Witness, would you please tell the Court your name?
A. Dr. Franz Gross.
Q. Would you briefly describe for the Court your professional education and any public offices you may have held?
A. I was born on 2 February 1908 at Darmstadt, as the son of Adolf Gross, at that time assessor and now President of the District Court. After going to elementary school and Gymnasium, I made the examination at the Gymnasium at Darmstadt and then studied law. I studied at the universities of Giessen, Berlin and Munich. In the year 1930 I passed the first examination. I got my doctor's degree, and in 1933 I made the second state examination. After that I was at the Hessian Landesband, *********** the bank at Darmstadt, and then I was at various courts, such as Bentheim Bergstrasse and at the District Court, Darmstadt. On 1 September 1937 I got a position at Amberg as Counsellor at the District Court.
At first I was not drafted because I have a weak heart. Then in June, the end of June 1942, I came to the Special Court; I was transferred to the Special Court at Nurnberg.
Q. Were you a judge at the Special Court in Nurnberg, Dr. Gross?
A. I was transferred to the Special Court as an auxilliary at first, and I was told that was so, and I protested against it.
I was told that I could do nothing against it, because he himself had not been asked, and a soldier who is drafted has to follow that also, that call, so I could not do anything else but accept this temporary assignment.
Q. While you were a judge on the Nurnberg Special Court, was your title that of Associate Judge?
A. Yes. I did the duties of an associate judge, but I believed that I was not a permanent associate judge because from the outset I was told that I would have these duties only temporarily, and it is a fact that during the entire period of this assignment to this Special Court I got per diem pay, so-call per diem pay, in addition to my regular pay. Therefore, my regular post was Amberg, and I expressly objected to a definite transfer. A transfer to Nurnberg was mentioned once, and I said I would not want to be transferred to Nurnberg. Thereupon it was not really carried out.
Apart from that, at the end of 1933, and in the course of the year 1934, I still worked at the court of Amberg, as a local judge, that is, in minor cases; cases which originally had seen before the Special court, but then because they were less important had been before the Special Court, but then because they were less important had been separated and returned to the local court marked as local cases, and which were then tried before the local court. The local court -
JUDGE BRAND: Just a moment. When did you start serving as a temporary judge in the Special Court at Nurnberg; the date?
A. It was the end of June, 1942, Your Honor. The local court -
JUDGE BRAND: That is all I want to know.
BY MR. WOOLEYHAN:
Q. Dr. Gross, after you came to Nurnberg as a temporary associate judge at the Special Court, namely, in 1943 -
A. 1942.
Q. I am speaking of another date at the moment, namely, in 1943, a case was brought before the Nurnberg Special Court involving two defendants named Kaminzka and Doven. Were you associate judge on that case?
A. Yes, I was associate judge in that case; I can remember it. Kaminzka was a Polish woman and the co-defendant Doven -
JUDGE BRAND: Mr. Witness, why don't you wait for the question to be asked, and then answer the question?
Q. That case has been introduced as evidence before this Court as Exhibit 201, but in order to discuss it, may I ask you if you remember briefly the essential facts in the case of Kaminzka and Doven.
A. Yes, I remember the essential facts. The defendant Kaminzka was a Polish woman and the co-defendant Doven was a Ukrainian; both had been working with German peasants in Uffenheim; the had been ssent there and they had sexual relations, and Kaminzka also gave birth of a child.
If I remember correctly, she brought it in the spring of 1942 to Poland; when she came back from Poland she asked for the money for the trip to Poland from her employer; the daughter of the employer refused that; and thereupon the employer because she insisted called a German soldier by the name of Wanner to assist, and Kaminzka hit that German soldier in the face; thereupon he slapped her. After that there was a row; in the course of that turmoil Wanner said to Kaminzka, or rather to Doven that he should go away. Kaminzka ran out of the room and took a hatchet, but she didn't come to use it. A short time thereafter -- all that occurred in the evening at nine o'clock -- a short time thereafter the German soldier left on his bicycle. Kaminzka came after him, and Kaminzka took a heavy stone -it weighed more than half a pound, but she didn't hit him. On the next day -
Q. Dr. Gross, when this Kaminzka woman took this stome that you described, did she threw it at the German soldier?
A. Yes, she threw it after the German soldier, but she didn't hit him; she missed him. On the next day the German oberwachmeister came in order to arrest her; he found her in the field where she worked and took her along; she tried to resist, and her boy friend Doven ran after her, although the German official had told him not to. The gendarme wanted to put Kaminzka into a prison cell, but Doven held her with both arms; finally the sergeant succeeded, with the help of others, to arrest Kaminzka and bring her into the cell. That is according to my recollection of the facts.
Q. Dr. Gross, were Kaminzka and Doven Polish citizens?
A. Kaminzka was a Polish woman, and in the year 1939 before the war broke out she lived in Poland, and Doven was a Ukrainian.
Q. Dr. Gross, I gather from that -- and please correct me if I am wrong -- that neither Kaminzka nor Doven were citizens of the German Reich; is that correct?
A. That is correct.
Q. Now, Dr. Gross, you have said that both of these defendants, namely, Kaminzka and Doven -- one a Pole, the other a Ukrainian -were doing labor -
A. Yes.
Q. In the Reich, is that correct?
A. Yes, that is correct.
Q. During the war, Dr. Gross, that is between 1939 and 1945, did you know at any time that Poles were being brought forcibly into the Reich for labor?
A. No, at that time I did n't know; I only found that out later.
Q. When did you find that out?
A. Well, I could not say that accurately; I believe it was after the end of the war when I found that out.
Q. You have described the act of the defendant Kaminzka -- as having thrown a rock at a German soldier, which missed him.
A. Yes.
Q. Would you say that that act of Kaminzka was an assault with a deadly weapon within the meaning of the German statute against violent criminals?
A. At that time already I was of the opinion that was not a crime in the sense of a violent act; that it should not be punished with death; at that time already I thought that sentence was inhuman and I objected to it; but with Oeschey there were no deliberations; there were no votes taken.
Q. One moment, Dr. Gross, if you please. You mentioned the name of Oeschey.
A. Yes.
Q. Was he a judge in that case?
A. Yes, he was the presiding judge of the case.
Q. Then, in your opinion, or rather let me withdraw that. You have said that at the time Kaminzka was tried you did not believe that the violent criminal statute made death mandatory for her act;
is that correct?
A. No. At this time already I was of that opinion that the death penalty was not applicable for that case. I also told Oeschey about my objections, my misgivings; and he explained that as Rothaug had done so in similar cases that it was a necessity for the state and nation that particularly against Poles severe measures had to be taken. It had been Rothaug who first mentioned to me that it would be sufficient if a Pole just raises his hadn against his employer to sentence him to death. In my opinion, Oeschey in that case of Kaminzka considered himself the execute of the racial politics of the Third Reich, which during -
DR. DOETZER (Attorney for Defendant Oeschey):
May it please the Tribunal, I object on the ground that these are opinions which the witness states, but not facts, about which he has been asked.
A. If I may say something to this, I have to say everything, haven't I? I also have to describe the opinion I had at that time; I have been asked to do so.
THE PRESIDENT: The witness, being a judge, is in a different situation, and he is expressing his opinion of the case that was then before him. I see no reason why he can't do that.
BY MR. WOOLEYHAN:
Q. Dr. GrOss, with regard tO the act of the defendant Doven which you have described, namely, that of holding or physically confining for a moment the defendant Kaminzka outside her prison cell -at the time that this case was tried, did you consider that an act which made death mandatory under the Public Enemy Statute?
A. No, I did not consider this an act to be punished by death, since there were relations between the two defendants; it could be quite understood, humanly understood that Doven tried to hold Kaminzka.
I consider it doubtful whether this could be even considered resistance against the authority of the state. At any rate, his act was neither punishable by death.
Q. From your observation at the trail of this case, of Kaminska, and from anything that the presiding judge at that case, Oeschey, may have told you, what appeared from those observations or opinions expressed by Oeschey, if any, as to his judicial attitude toward Poles?
A. Oeschey, in this matter, followed Rothaug precisely; he continued the tendencies established by Rothaug, that in the case of even minor offenses, the most severe measures had to be executed against Poles, and in the case of Kaminsak that was clearly expressed. At that time already, I had the impression that Oeschey, himself, saw quite clearly that the case-- the facts in the case did not suffice for a severe penalty. That was why he answered to the objection which I made by explaining that other high tribunals, I believe he also spoke about the Supreme Reich Court in similar cases had handed down similar verdicts, and that in the particular case -- the throwing of the rock, as it was here, was considered a violent crime. I mentioned this, because Oeschey otherwise did not even care to have any long discussions with me; he did that, only if it was a serious case in which he was further interested. If he wanted to pronounce a death sentence, and had to speak on my part or any other associate judge's part, there was some resistance to be expected; then otherwise he would not have any discussion.
Q. Dr. Gross, sometimes in 1943 or 1944, while you were a temporary associate judge on the Nurnberg Special Court, do you remember a case tried by that court involving two defendants named Jeannie and Sala?
A. Yes, I remember that case very well.
Q. One moment, Dr. Gross, in that case of Jeannie and Sala, which you say you remember, were either one of those defendants citizens of the German Reich?
A. No, both of them were foreigners; if, I remember correctly Jeannie had French citizenship and Sala, Italian.
Q. Can you tell us the essential fact of the case of Jeannie and Sala?
A. Yes, I can do that. I remember that both defendants were charged with three burglaries, which they were alleged to have committed in Nurnberg during the night. They only confessed one burglary-- however, rather, only one burglary could be proven; two other burglaries they denied emphatically. And, in that case it was a definite case of circumstantial evidence against both of them. Together, they were living with a man by the name of Bertran who was a criminal and who had been killed while trying to escape. In this apartment they had together, two objects were found -- a towel and a small cotton bag, and these two exhibits came from these two burglaries.
Q. You state that in the apartment where Jeannie and Sala lived, there was found a towel and a small cotton bag; was that all that was found in the possession of the defendants? Just answer yes or no.
A. I cannot say that now, at this moment--I cannot remember any other exhibits at the moment.
Q. At the trial of Jeannie and Sala, were any exhibits offered by the prosecution as having been found in the defendants possession other than the towel and the small cotton bag?
A. No, no. In the two burglaries which the two defendants denied, a large number of objects had been stolen, but none of them were found, that is, not with the two defendants--with the exception of these two exhibits, the piece of cotton and the towel, if I remember correctly.
Q. In view of the fact that only those two exhibits that you mentioned were offered as evidence at the trial, what were the articles or goods that Jeannie and Sala were accused of having stolen?
A. Oeschey considered sufficient that he had the two exhibits.
Q. One moment, you mentioned Oeschey again; was he also the presiding judge in the case of Jeannie and Sala?
A. Yes, also in the case of Jeannie and Sala, Oeschey was the presiding judge.
Q. Continue with your description of the goods that Jeannie and Sala were accused of having stolen.
A. There was quite a number of goods, wines, and liquors that had been stolen, and that had considerable value. Oeschey was of the opinion that these two were also the people who had committed the two burglaries on the basis of the two exhibits. I had serious misgivings, and I emphasized these misgivings but Oeschey only smiled.
Q. One further thing, Dr. Gross, under what statute were these two defendants indicted?
A. The decree against public enemies.
Q. And, what was the sentence that each received?
A. Both of them were sentenced to death. I remember very well that during the deliberations, if that could be called a deliberation, I had specifically stated not only in that connection but in the connection with other circumstantial evidence, it would be better to acquit ten defendants by mistake than to sentence one to death by mistake. However, Oeschey's mind could not be changed, and he insisted.
Q. Dr. Gross, as an associate judge on that case, were you satisfied that the acts of burglaries of such a serious nature as to bring them within the public enemy statute, justifying a death sentence were actually proven?
A. No, I was of the opinion that only one burglary was actually proven, and that would not be sufficient in order to try the defendants under the public enemy decree and sentence them to death, but Oeschey, as I have already explained, did not need my objections concerning the circumstantial evidence at all. I told him at that time specifically that even if these two exhibits came from the two burglaries and that their owner recognized them as their property, it could be that the two burglaries had been committed by the man who had already been killed. It could be quite possible that the burglaries had been committed by Bertran alone, and upon which he said-
Q. Dr. Gross, may I interrupt one moment, please. On this Jeannie and Sala case, did you act as a reporter for that case in addition to being an associate judge, by that I mean did you write the opinion?
A. I was the reporting judge and I wrote the opinion, that is, I dictated it.
Q. Well, then, Dr. Gross, do you remember whether or not the opinion which you dictated in the case of Jeannie and Sala, you stated that the particulars of the burglaries with which Jeannie and Sala were charged remained unknown?
A. I do not quite understand your question, sir.
Q. In the opinion of the case which you wrote, did that opinion state somewhere that the particulars of the burglaries, that as, the facts and circumstances of the burglaries, and the proof therefore remain unknown?
A. Yes, I can still remember, it says there somewhere in the opinion, that the particulars of the burglaries had not become known, and there is one sentence in the opinion which is surprising for any unprepared reader. It says there, it could not be assumed or since the three of them, Bertran, Jeannie and Sala had committed burglaries together, how was it possible or why should it be the case that particularly on that one night they did not work together. That was in the opinion, I had to put in, because I had to justify the verdict in some manner. I took this sentence from the oral opinion given by Qeschey into my transcript, because I had the habit also of writing down in shorthand the order of the opinion given by the presiding judge. That explains why this sentence is contained in the written opinion. I had to give a reason. I had to put in that missing link, which in my opinion, existed concerning the circumstantial evidence.
Q. Dr. Gross, during the trial of Jeannie and Sala, which was presided over by the defendant Oeschey, did you remember anything unusual that you observed in Oeschey's conduct toward the defendants?
A. Well, I can say, in general, that Oeschey frequently was rather bully to the defendants. Even though I cannot remember the details of this particular case, I know it from other cases. I can well remember once he shouted to a defendant, "You pig."
It was not only once but it was several times in the case. I remember another situation, I believe it was a case of malicious intent, and he told the defendant, "You political swine."
He often behaved in this manner during sessions that I was really ashamed to be present there as associate judge when these things occurred.
Q. Dr. Gross, these things you have mentioned having remembered hearing the defendant Oeschey say to defendants did Oeschey say these things orally from the Bench, during trial?
A. Yes, these expressions, these insulting expressions, were mentioned from the Judges Bench, were said from the Judges Bench during the trial. He did not mind to attack defense counsels, and some times in the most insulting and unheard of manner.
Q. Dr. Gross, may I interrupt a moment please? To sum up a little: In the case of Kaminska and Doven, and in the case of Jeannie and Sala -- all four of these people received death sentences, did they not?
A. Yes.
Q. Do you know whether all four of these death sentences were executed?
A. That I found out later.
Q. Were all four of them executed?
A. As I found out later, yes.
Q. Did any defendant in either of these two cases, namely, either Kaminska, Doven, Jeannie, or Sala, ever have a previous criminal conviction?
A. As far as I can remember, they were all of them, without previous convictions; at least, nothing to the contrary was known. Therefore, one has to assume that they were without previous convictions.
Q. During your deliberation in Chambers, after the conclusion of the prosecution and defense, while you and the presiding judge Oeschey, and your other associates, were deliberating what sentences to pass in these two cases we are discussing, was any formal vote ever taken among you judges, as to the sentence to be imposed?
A. I have already mentioned before, briefly, that formal deliberations, or formal votes, such as I had known it from my previous experience, did not exist with Oeschey. In the case of Jeannie, in that quite exceptionally he ventured into a discussion; whereas in other cases he had passed over that in an unheard of insulting way. If I made any objections, then he made believe he didn't hear it, or he interrupted me, did not make it possible for me to state them. I considered that always quite insulting, as if I was treated like a school boy. In spite of that, I.....just the same, I always emphasized my misgivings in individual cases, and in individual cases it really did happen at times that I, myself, or another associate judge, succeeded in bringing about a milder sentence; but these were exceptional cases. Then again, when he had the intention, at the outset, to pass a death sentence, nothing could be done.
Q. Dr. Gross, you have just described now the manner in which the defendant Oeschey, during deliberation in Chambers, ignored or shouted down your objections to particular sentences. Is that the method whereby a sentence was achieved, or arrived at, even though no formal vote was taken?
A. Yes, in general, that was the method. Of course, in the course of time it became clear to everyone that it was quite useless to put up any resistance because if one had insisted it would have come to serious debate and to open breach, and that would have lead, in view of the past of Oeschey, to a political danger...I do not have to explain in detail.
..it was always clear to me that it was not possible to risk a real conflict with him.
Q. Dr. Gross, did you ever see Dr. Rudolf Oeschey in any kind of uniform?
A. I believe my recollection is correct, that I saw Oeschey once in a political leader uniform, but I could not say on what occasion that happened. It may have been so-called reception on the occasion of the first of May celebration, or something of that kind. I may have seen him more than once in uniform, but I could not say that precisely today.
Q. I am sorry, I did not catch your answer in part, What kind of uniform did you say it was that you saw Oeschey in?
A. It was an "Amtswalter" uniform. I do not know any details about it. An official uniform. What the insignia was, I cannot remember, but I believe I can say, at any rate, it was not an SA uniform; it was a dark brown uniform, the uniform for officials.
Q. Was this uniform, in which you saw the defendant Oeschey, which, as you say, was an "Amtswalter" -- was that part... or rather, do you know whether that was part of the NSDAP Leadership Corps.
A. I have to say that I am not quite well informed what Amtswalter belonged to the Leadership Corps; anyway, it was an official Amtswalter uniform, and, as we all knew, he had a high position in the Amtsgau, and there was no doubt about it he wore a uniform of that kind.
MR. WOOLEYHAN: There is no further direct examination.
DR. DOETZER: May it please the Tribunal; Dr. Doetzer for defendant Oeschey.
With the permission of the Tribunal, before I begin the cross-examination, and in order to explain way I am defending Oeschey at this time, I would like to say a few words.
The defendant's counsel, for the defendant Oeschey, my colleague Dr. Schubert, last week made absolutely sure whether, in the case of the defendant Oeschey, whose counsel he is, a witness would be heard. Since he believed to be reasonably sure that no witness would be heard, he made a trip to Berlin in matters of the defense of his client, and asked me to take care of his matters in his absence. When I ascertained last Saturday that the witness Gross would be examined, I sent him a telegram, to Berlin, and this morning received a telegram from him, in which he asks me to conduct the cross-examination. Therefore, I prepared myself, and ask for permission of the Tribunal to begin this cross-examination.
THE PRESIDENT: Proceed.
CROSS-EXAMINATION BY DR. DOETZER:
Q. Witness, it is clear to me that you are in a rather difficult position, a rather delicate position. Therefore, I shall try to take that into account by an objective examination. You mentioned, at the end, that you saw the defendant Oeschey once, in an Amtswalter uniform, and not an SA uniform: You did not know for sure whether, on other occasions, he had worn a uniform, and it had not been surprising to you that he wore a uniform, because in the Gau Leader Office of the Gau Franconia he held a high position.
A. Yes, that is how I remember it.
Q. Do you remember it precisely -- that you have seen him in uniform once?
A. I believe my recollection is correct.
Q. You believe your recollection is correct. As an objective fact, you could not state it?
A. It is always possible to make a mistake; any witness can make a mistake, I know from my own experience. But I do not believe it is a mistake.
Q. May I understand you to say that you believe you can still remember it, and that you believe that you did not make a mistake?
A. Yes.
Q. You said you could not say anything about the insignia of rank on that uniform?
A. No, I don't know that. I was not interested in that any more.
Q. Weren't you a member of the NSDAP?
A. Yes. In May of 1937, due to the pressure of my superior, I entered the NSDAP.
Q. And then you did not know anything about the uniforms of the NSDAP?
A. Yes, but the insignia of rank were not of interest to me.
Q. Thank you.
Witness, today in the direct examination you spoke essentially about two procedures or two cases, if I remember correctly; first, the case Kaminska-Doven, and then the case Jeannie-Sala.
A Yes.
Q. If I understood you correctly, you took part in both cases.
A. Yes.
Q. Were you reporting judge in both cases?
A. Yes.
Q. Did you write the opinion in both cases?
A. Yes.
Q. Who was the other associate judge, apart from the presiding judge Oeschey?
A. I have to correct that. In the case Kaminska I was not the reporting judge, I did not write the opinion; that was a mistake on my part. That was Associate Judge Pfaff who wrote the opinion.
Q. Who was the Associate Judge Pfaff? Was that a judge?
A. That was also a judge.
Q. A local court judge, or a district court judge?
A. A local court judge, at the local court Nurnberg.
Q. In other words, a judge by the name of Pfaff in both cases?
A. No; in the case Jeannie I couldn't say right now who the other judge was.
Q. Do you still remember who the prosecutor was in both cases?
A. That I could not tell you either.
Q. Do you remember the names of the defense counsel?
A. No; that I can tell you the least, because I did not even know most of the defense counsel in Nurnberg by name. I got confused very often, and I had to ask, "What is the name of this counsel or that counsel?" I have a very bad memory for names, for person, and for faces, and that may be explained by the fact that we were on many trips where we met so many counsel that only few of them were really personally known to us.
Q. In answering the question of the Judge, you said that from the end of July 1942, you had been transferred to the Special Court as Temporary Associate Judge.
A. Yes.
Q. How long were you at the Special Court?
A. I was there a little ever two years, until I was drafted as a sodier.
Q. When was that?
A. That was in November, 1944.
Q. Then you were once an associate judge under the presiding judge Rothaug, and then once you were under Qeschey?
A. Yes, and also, in the meantime, under the presiding judge Ferber.
Q. How shall I understand "In the meantime"? How shall I understand "In the meantime"?
A. After Rothaug -- I believe it was in April 1943 -- had been transferred to Berlin, at first the former director Ferber became presiding judge of the Special Court. We felt very much relieved when Rothaug left, and Ferber, in a very objective and quiet manner, took over.
Q. I didn't ask you about that: I asked you what you mean by "in the meantime".
A. When Ferber had to step down after a short time, again, Oechey, to our greatest regret, became presiding judge.
Q. Then during the period when Rothaug was the official presiding judge, only Rothaug was the presiding judge in cases? Then Ferber was there it was only Ferber? Then Oeschey was there it was only Oeschey? Or is that wrong?
A. No, that is not correct. While Rothaug was presiding judge, Ferber, on one hand, and I believe also Oeschey on the other hand, had the position of presiding judge in one or the other case, particularly Oeschey, because the way it happened was mostly that the Special Court was having not only one session, but several sessions or two sessions at the same time. One session was in Nurnberg and the other one was either in Regensburg, Amberg, Weiden, or Ansbach, depending upon where the particular case had been scheduled. Then one case was presided over by Rothaug, and the other case, which was tried at the same time, was presided over by Ferber or Oeschey, during the time when Rothaug was there.
Q. In the case against Kaminska and Doven and Jeannie and Sala, it is quite evident, however, so far as you remember it, that the defendant Oeschey was the presiding judge?
A. Yes.
Q. For your information, did you study the former files, or the previous files, in the case of Kaminska as well as of Jeannie--Sala?
A. Yes, I looked through the verdicts in order to refresh my memory.
Q. Where were these verdicts?
A. They were here; here with the prosecution.
Q. Thank you.