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.
Could you describe how the proceedings against Kaminska and Doven took place?
A. Well, I cannot remember the details distinctly today. I only know that in the deliberations I advised of my objections concerning the sentence against Kaminska and Doven, and that at that time, quite exceptionally, Oeschey entered into the discussion by saying that a higher court had also decided that throwing a rock should be considered a violent act in the sense of the statute against violent criminals, or it could be considered that; whereas, as I have explained before, in other cases he most frequently ignored my objections or did not let me state them. I don't mean to say that he always shouted them down, but it was clear to me that we associate judges, and I especially, could not succeed against this opinion. At any rate, I still offered my objections at all times.
Q. Witness, I have to ask you not to speak about generalities now we may be able to return to that later. I have only put the question to you, and would like you to answer it in that sense, whether you remember the trial Kaminska-Doven. One moment please. Thereupon you have answered that you don't remember the details of the trial, or of the proceedings, but only your attitude during the deliberations.
A. I said that I cannot remember the details of the trial.
Q. But you have a very definite recollection of the deliberations?
A. At any rate, I know that I stated my objection, such as I have explained it, and what I was answered.
Q. At any rate, at the end of the deliberations, did you agree?
A. No. The way it happened was that one could not convince Oeschey. In many cases he didn't even listen to you. I have said that already, and I have to state it again.
A. I am only interested, as I have already told you, witness, that you answer the question concerning the case Kaminska-Doven. I put to you, and I put to you again, the question as to whether you were for it or against it -- that is, the opinion -- in the end.
A. I was against it.
MR. WOOLEYHAND: Your Honors, the witness has answered this question several times in the same way for me and for defense counsel also. I object to the question for the reason that repeated asking of the same questions argument.
THE PRESIDENT: It is apparent to the Tribunal that you have asked that question more than once and have received answers more than once.
Apparently the entire ruling did not go through the communications, but the objection is sustained.
DR. DOETZER: Yes.
BY DR. DOETZER:
Q. Witness, the objection which you voiced in the deliberations, did that refer only to the fact that the throwing of the rock was considered a violent crim, or did you also have other objections as far as Kaminska was concerned?
A. My objection primarily concerned the fact that the throwing of the rock was not a violent act and not to be punished by death in the sense of the statute concerning violent criminals, so that the application of that statute could not be made.
Q. Did you inform yourself about the jurisdiction of the highest German court in connection with that question?
A. No, I did not do that, but we were not just ordered by the Supreme Court as to what kind of sentences we had to pass. At any rate, I did not approve it, and I can only repeat that as far as my opinion and statement of my opinion was concerned, I felt myself limited, really violated, by the attitude of Oeschey and Rothaug.
Q. My question is, was only the throwing of the rock important in your objections? You repeat the same answer time and time again. I only want a clear answer from you, yes or not.
A. I have already told you that I do not consider that a violent crime in the sense of the statute against violent criminals, regardless of what the decision of the Supreme Court was.
Q. Didn't the defendant Kaminska commit other arts?
A. You mean the slap?
Q. That is what I want you to tell me, witness.
A. Yes, but she was not sentenced on the basis of that.
Q. Do you remember that exactly?
A. Well, that certainly would not have been a reason to sentence Kaminska to death.
Q. I didn't ask you that.
A. If you put the question to me, then I have a right to answer.
Q. I ask you to answer the question just the way I put it to you.
A. In my opinion, it is my right in answering a question, to give you all the details that are in connection with it.
Q. I shall give you an opportunity with other questions.
THE PRESIDENT: Mr. Defense Counsel, the time has come for our usual noon recess, and we will therefore recess at this time until 1:30.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 30 April 1947.)
THE MARSHAL: The Tribunal is again in session.
FRANZ GROSS - Resumed CROSS EXAMINATION (Continued)
DR. DOETZER: May it please the Court, I would like to continue the cross examination.
BY DR. DOETZER:
Q. Witness, we have been discussing the case of Kaminska and Doven. I would like to put a few more questions about that. In conclusion I had asked you whether Kaminska, besides throwing the stone at the soldier Doven who was sitting on his bicycle, whether she had been accused of other offenses and whether she was sentenced on the basis of other offenses. I will repeat my question briefly and would ask you to answer.
A. Kaminska had boxed the soldier's ears, but in my opinion and as far as I remember, she was not sentenced because of that. Then it was said that the soldier had lost his assault badge or that it was torn off, and as far as I remember, that could not be ascertained for certain. During the trial it was found that the assault badge had simply dropped off.
Q. Was Kaminska charged with any other action or actions?
A. Yes, the matter of the axe. When she left the room where the struggle had taken place, she got hold of an axe, but she did not actually attack him. That was considered to have been a threat.
Q. Why didn't she actually hit him?
A. I don't know that.
Q. Was Kaminska charged with any other actions?
A. Yes. The group of actions in which Doven was involved as well. Kaminska was charged with having offered resistance when she was being arrested. Doven is supposed to have aided her by holding on to her.
Q. Thank you. With which actions was Doven charged?
A. He was charged with the actions which I have already described.
He tried to set her free by holding on to her when the policeman wanted to arrest her.
Q. Did Doven not also take part in the struggle when Kaminska boxed the soldier's ears?
A. Yes. Doven had interfered when Kaminska started to fight with Gundel, and Doven pushed Gundel about.
Q. Do you know what legal conditions obtained as far as all these legal actions were concerned?
A. Yes, it was assumed that he had tried to set Kaminska free and to resist the authority of the state by trying to hold on to her and thus to set her free. But I have already said that I was of the view that that was not an action which merited the death sentence.
Q Yes, you have already said that. And in your recollection, what legal conditions were applied to the offenses committed by Kaminska?
A. Kaminska was sentenced under Paragraph 1, Section 1, of the violent criminals law.
Q. Only under that?
A. In connection with threat, as far as I see it.
Q. Was it not assumed that another law could also be applied?
A. I cannot remember that now.
Q. In the trial the defendant Oeschey presided, as you stated?
A. Yes.
Q. Do you remember how Oeschey conducted himself at that trial?
A. That question was put to me before. I cannot remember any details of the trial. I only know how he behaved at other trials.
Q. Yes?
A. I have already described that.
Q. We will revert to that later. How long did the deliberations last?
A. I really cannot say that now.
Q. Did you find the sentence, or did-
A. Yes, I did.
Q. What did. you have to say about the question of clemency?
A. As far as I remember, we were not heard on that subject. The presiding judge alone dealt with that. That was only the case at the beginning of the time I held my position in Nuernberg.
Q. You said that later on you heard that Kaminska and Doven were sentenced, and that not only was the sentence upheld, but that they were both executed.
A. Yes, I did hear that later.
Q. About what time was that? Do you think it was a year later?
A. I can't tell you that, either. I believe it happened at the time. A great many things were being discussed.
Q. According to your recollection, was the other associate judge during the deliberations in favor of the death penalty or not?
A. I cannot tell you that, either.
Q. Were there any sentences in the case in which, apart from the presiding judge, both associate judges were against the sentence and yet the sentence was announced?
A. Yes, I can remember one case with Rothaug.
Q. I now want you to tell about Oeschey.
A. I told you before that a further deliberation of voting never happened at all, or hardly happened at all. Objections were simply passed by. The despotic behavior which Oeschey displayed, particularly with me, he also displayed with the prosecution. The prosecution had to accept the demands from him, so to speak. It was the custom for prosecutors in the room--
Q. Witness, you are now talking about something about which I never asked you.
A. But this is connected with the group of questions about which you asked me. I said that the Public Prosecutors came into the judges' room to hear what sentence they were to demand, and Oeschey used to say, well, demand such sentence, and usually they did what he told them. And if the associate judge, and particularly myself, if we persisted in our different opinion for some time, he became rude, and if we had persisted for any longer there would be a real conflict, and that wouldn't have been possible.
THE PRESIDENT: Dr. Doetzer, there is a good deal of repetition in your examination. Some of these things have been stated two or three times before. There is nothing gained by that repetition. Please govern yourself accordingly.
DR. DOETZER: I understand.
BY DR. DOETZER:
Q. Witness, we will now discuss the Jeannie Sala case. Who were the judges during that trial?
A. I have told you before that Oeschey presided. I was an associate judge and I also wrote the sentence and was the Referent, and I have already told you that I can no longer remember for certain who the other associate judge was, whether it was Hoffman or Bach. I can't tell you that for certain. I believe it was Hoffmann.
Q. You do not remember the Public Prosecutor or the defense counsel in this case?
A. No.
Q. Were there any other defendants apart from Jeannie and Sala?
A. Yes, there was a German defendant and there were other defendants who were accused of receiving but I cannot remember any details.
Q. Were they sentenced to death?
A. No.
Q. Only Jeannie and Sala?
A. Yes.
Q. You said when discussing the case that the only evidence for conviction were those two objects in the joint apartment of Jeannie and Sala?
A. Yes, I spoke this morning and expressly pointed out that I had misgivings and had said that only one sentence was pronounced wrongly.
Q. We know that. Please, don't repeat that.
A. I will ask you not to interrupt me all the time.
Q. I have to interrupt you because the judges have asked me not to continue with this group of questions. I would ask you, whether it was apparent from that piece of evidence, whether apart from that circumstantial evidence, whether there was any other circumstantial evidence?
A. Oeschey assumed that in effect Jeannie and Sala, together with Bertram, had conspired. That fact was not decisive in the case, as he could not assume that the 20 that had died should not have been together with Bertram. I have already said so.
Q. I know that already.
A. And that is what explains that one sentence in the verdict.
Q. We know that too. My question referred to other circumstantial evidence.
A. I can't remember that. You must help me with my memory. I don't know what you are referring to. I don't know anything about any other circumstantial evidence.
Q. Was it possible that Bertram alone should have committed the theft?
A. Well, why not? It was my first thought at the time.
Q. Was it not a case of vast amounts having been stolen, which one man alone could not have carried? Bertram could have had other helpers.
A. I said that at the time and I pointed it out.
Q. Did it emerge at all that apart from the defendant that anybody else could have belonged to that gang of thieves?
THE PRESIDENT: Dr. Doetzer, if you persist upon repeating these things, I will not stop you, but you certainly must go slower.
The translater cannot translate as fast as you are going, and you don't give her any opportunity to get the answer of the witness.
THE WITNESS: May I ask you to repeat that question?
BY DR. DOETZER:
Q. The last question was whether in the whole of the trial, the suspicion emerged at all that other unknown members belonged to that gang of thieves?
A. I don't know anything about that. But I have to say that I did not know the files. That was another custom of Rothaug and Oeschey. I think in the case of Rothaug, he did it on purpose. He told us that there was no need for us to know the files. In fact, we were not able to look at the files because we were so overburdened we had no time to read the files. At the time I thought it was a sign of commission and later I realized that Rothaug did it on purpose. We were to know as little as possible so that at the trial he would have as little opposition from us as possible, and I was to continue with that custom--not to the same extent. But whenever time allowed it, we tried, if possible, and in many cases we did in fact read the files to some extent. But I cannot remember and I don't know what actually happened in the Jeannie case.
Q. Where were the files?
A. They were in the room of the presiding judge, not at the room at the office.
Q. Were they not always at the office when the presiding judge did not need them?
A. Before the session, they were taken to the room of the presiding judge.
Q. Was that immediately before the session?
A. A few days before, in my view. That was another disadvantage of the whole manner of conduction that trial, and we were very overburdened. It was a matter for the presiding judge to recommend that.
Q. Did you ever complain?
A. Yes, of course.
A. With the presiding judge or with the president?
A. I, myself did not go to the president. I know that other associate judges did, and I know that the president tried to have Rothaug removed from the Special Court. But the presiding judge of the Special Court had a longer arm and was more powerful than the Oberpraesident and he paid very little attention to administrative matters. I am now speaking mainly of Rothaug who did not hesitate to offend and to abuse the president, naturally behind his back. I can remember telephone conversations when Rothaug called the Oberpraesident "Kalkofen" -- lime stove -- and he used other expressions which I have forgotten.
Q. If that was your reply to my question, I did not understand you correctly. Witness, in the Jeannie Sala case as well as in the Kaminska Doven case, you were opposed to it and you said so when the verdict was being discussed?
A. Yes.
Q. As death sentences were concerned, I must ask you whether you wrote down your different opinions and whether you put it in with the files, such as it was possible and customary according to German habits?
A. I did not do that, because in Nurnberg it was not possible or custormary to do that on matters of that kind. It would have been impossible. I would then have taken open opposition against the presiding judge.
Q. What do you mean by "open opposition"? Did you ever, at least in these two cases, out forward an opposing view? Did you ever notice that the presiding judge then took steps against you?
A. I did not offer open resistance to the last in this case because that would have been suicide.