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.
Q. But you have-
A. Considering the position which Rothaug and Oeschey had in the Party, that was quite impossible. And Rothaug kept us under pressure and intimidated us to such an extent, as far as our personal opinion was concerned, that we soon came to see that all opposition was senseless.
Q. Did you ever discuss the matter with any colleague or anybody else?
A. Naturally, we associate judges discussed these matters.
Q. Did you ever discuss the matter with the president or the Oberpraesidant?
A. I, personally, did not, but I know that Mr. Ferber at various times called on the Oberlandes Gerichtspraesident and made representations to him on these matters. It was also known that the Oberlandes Gerichtspraesident had tried to have Rothaug transferred to the East, but at that last moment that was called off.
Q. In your affidavit, witness you refer to several other cases. May I recall them to your memory briefly? According to the affidavit, which is to be found in Document Book III-A, and is Exhibit No. 229, in the German Book on page 91 and the following pages, it concerns the cases of Mahr, Riegelbauer, Friedchen, Pirner and Schmidt. I believe I have quoted these cases correctly ?
A. Yes.
Q. I do not intend to question you on details, but I would, merely like to ask you whether you, apart from the facts which you wrote down here from your memory, whether you recollect any other facts concerning thee trial?
A. Yes, I do.
Q. In what case please?
A. At the moment, I can't think of an individual case.
Q. But I am only referring to these case.
A. There were so many cases that today the majority of those cases are mere names to me.
Q. Witness, I don't think you understood me correctly. I asked you whether concerning these cases which you mentioned in your affidavit, you can from your memory testify to other facts?
A. Well, I have looked at the list of those cases.
MR. WOOLEYHAN: May it please the Court, the question that was broached twice by defense counsel is so general as to prevent the eliciting of any sensible answer. I am not objecting at the moment, but I do suggest that counsel phrase the question with regard to a specific case and ask for some specific facts.
THE PRESIDENT: The objection will be sustained.
BY DR. D0OTZ3R:
Q. Witness, do you remember the "Pirner case?
A. Yes, I do.
Q. At the Pirner trial, the expert, Dr. Haur gave his professional opinion?
A. Yes.
Q. Do you remember with what that expert opinion concerned itself?
A. Yes. Pirner had committed some of his thefts before he was 18 years old, and some of these thefts he committed after he had completed his 18th year, and, therefore the question emerged whether concerning the offenses which were committed before he was 18, whether he could be fully responsible and whether he reached full maturity at that time. That was the point which was under discussion.
Q. Did you write that sentence?
A. Yes, I did.
Q. Did you write the sentence in such a way as making it correspond with the facts that emerged from the trial? Did it also correspond with the expert opinion?
A. In my view, yes, it did.
Q. Witness, we are now coming to discuss the general remarks which you made about the defendant Oeschey.
THE PRESIDENT: Surely, the general remarks that this witness has made about Oeschey have been repeated time and again. Now you say you're coming to that again. Surely there must be an end to that particular question which elicits the same answer. That end must come some time.
DR. DOETZER: Your Honor, I would ask you to permit me in this context once again to put a very serious question to the witness.
THE PRESIDENT: You are asking and you say you are coning now to the general demeanor, but that is something you have gone over again and again.
BY DR. DOETZER:
Q Witness, lately, as I have been informed, you had thorough discussion with the chief defense counsel of the defendant Oeschey. We have detailed notes about that discussion. These detail notes contain evaluations which do not correspond to the latter issue you have testified to today?
A. That is not correct.
DR. DOETZER: All right, that is enough for me.
MR. WOOLEYHAN: I request that the question and answer be stricken as being extremely prejudicial, and having been asked with that in mind.
THE PRESIDENT: The motion will be sustained.
DR. KOESSL: Dr. Koessl for the defendant Rothaug. May it please the Court, I would ask you to decide whether my cross examination concerning Exhibit No. 226, document NG-252, an affidavit of the witness against the defendant Rothaug, may be extended. May I extend my cross-examination as to that exhibit, or, whether the witness is to be summoned again for cross examination.
THE PRESIDENT: Let me inquire. Is that the same exhibit that Dr. Doetzer referred to a little while ago. I thought I heard him say 229. Is this the same defendant's exhibit?
DR. KOESSL: No, Your Honor, that is NG-250, an affidavit by the witness against the defendant Oeschey, which affidavit is a separate affidavit against the defendant Rothaug. The latter has been No. 252 - correction, 652.
THE PRESIDENT: Did you say 252 or 652?
DR. KOESSL:NG-652 and Exhibit No. 221.
JUDGE BRAND: You are now asking the privilege of cross examining only as to the affidavit of the witness, who is on the stand, aren't you?
DR. KOESSL: Yes.
JUDGE BRAND: You certainly do have the right to cross examine concerning the affidavit that this witness had made, if that affidavit has already been introduced in evidence.
DR. KOESSL: Yes.
MR. WOOLEYHAN: May it please the Court, I believe Dr. Koessl meant to ask, could he postpone his cross examination. I am not certain.
DR. KOESSL: I wanted to do as the Bench wish.
JUDGE BRAND: Inasmuch as the defendant Rothaug is in court, and this affidavit is already in evidence, you will be required to conduct your cross examination at this time.
BY DR. KOESSL:
Q Witness, what was the name of the Oberlandesgerichtspraesident who exercised on you the pressure to join the Party?
A That was at Darmstadt at that time, I was in my home down at Darmstadt, and it was Scritha, he was generally known as.
Q Spell that?
A S-C-R-I-T-H-A. Sofar as I know ho is in camp.
Q Witness, how do you explain the fact that with your political aspirations in Amberg you had established no name?
A I don't know that. I don't know how I had been assisted politically, and I never have seen any personal file. At any rate, it is not correct, as the Landesgerichtspraesident at Amberg told me himself that I should not have been offered that according to my whole manner and my temperament, and soforth, that I was not at all suitable for the work at the special court, and that the appointment had been made by passing him.
Q Did Rothaug talk to you about your transfer to the special court?
A Yes, he did, once, talk about it to me, but at that time my transfer had already become effective. The Landesgerichtspraesident for Amberg told me that I had been transferred to the special count, and showed me the order, that was the first thing I heard about the matter.
Q When did you for the first time make the acquaintance of the presiding judge of the court at the time?
A Sofar as I can remember a few days after I had received the order of my transfer.
Q Where was that?
A It was at the Station Hotel in Amberg, sofar as I can remember.
Q. Did you cooperate with the SD?
A No.
Q Did you use your Party membership for personal means or ends?
A No, and I don't know how I am to interprete your question.
Q what experience did you have to cause you to describe Rothaug as a man without character differently from Oeschey?
A He was considered generally not only by the assistant judges, but other jurists, that he was unpopular and hated, and also by the population, and even in the social circles he was generally repudiated, in many circles they repudiated him.
Q Witness, I want to know why you say that he has no other character?
A Because of his sadistic severity. We often talked about him, and we thought that he was a sadist who did not refrain from anything, and he for personal ambitions acted the way he did act.
Q Did you observe any action which justified the words, "no character"?
A Yes, in many cases he showed personal cowardice. I can mention this, he never went to a dentist. I can remember that an associate judge once told him to go to a dentist because that day he had been having a terrible toothache, but he said he preferred to have his teeth rot in his mouth, and, concerning women, and other things, marriage, religious matters, matters which were heard by others, as to them he expressed such opinions, so that I can not understand that such a man for years should have been the presiding judge of a court. In that respect I would like to treat him differently than the defendant Oeschey.
Q Witness, how did it happen that you entrusted such a man without a character with personal matters. Did you only now form your opinion of Rothaug's personal qualifications?
THE PRESIDENT: One moment, please, witness.
MR. WOOLEYHAN: May it please the Court, I was not aware the witness said in his testimony that he had entrusted Rothaug with personal matters. That was a statement of counsel.
THE PRESIDENT: The objection will be overruled.
BY DR. KOESSL:
Q You have had that view about Rothaug before, have you
A Yes.
Q Why did you entrust personal things to a man who had no character?
A That is entirely now to me. Naturally in all we discussed many things. I don't know what you are referring to at the moment.
Q Were you admonished once by the defendant Rothaug concerning your first wife?
A That means an intimate matter, and I don't think this has anything to do with the trial.
Q It does have something to do with the character of the witness.
A I don't see what is the purpose of such questions.
Q Witness, what makes you describe the defendant Rothaug as a high functionary of the SD?
A I did not know anything else he was with. He was at the RSHA - - he worked for the RSHA.
Q What personal observations did you make in that direction?
A I heard it from other associate judges who were better informed than I. Rothaug did not find it necessary to inform me about such matters. On the contrary, he always left me in the dark. He left me in the dark on such matters on purpose. I was the only one who knew nothing, who had no opinions, etc., in his view.
Q When did you hear for the first time about those functions of Rothaug in the SD?
A I don't know nowadays.
Q Was it while you cooperated with Rothaug?
A Yes, as far as I remember, it was.
Q Did you yourself observe anything?
A No, I did not. I have already said that.
Q According, to your observations, with what high functionaries did Rothaug keep up contact?
A He was in contact with the Gauleiter here or the Deputy Gauleiter. He was acquainted with Streicher. I can remember that he told me, or that he told us during a motor trip he had been invited to Streicher's or had quarrelled with him on his farm. He always mentioned that those persons--Gauleiters, etc.,--always provided him with directives. He was also very well acquainted with the Ortsgruppenleiter. I can not remember the name.
Q Do you mean Haberkern?
A Yes, that's right, who was going to the Blaue Traube, and thus I had to gain the impression--and it was no doubt the right impression-that Rothaug was always in contact with those people.
Q From your reply, I heard only of one meeting with Streicher. Is there anything I didn't hear?
A Yes, there are several things you overheard. I told you that he was always in contact with the Deputy Gauleiter Holz, also Oeschey.
Q What did that permanent contact mean? How often did you yourself observe such contacts?
A I naturally can not say that now, but at any rate, he very often talked about such things and said that he had called at the Gauleiter's office or that he had met this or the other person, and, above all, he conducted his trials accordingly. He asked the Amtsleiter to attend the session, for example, in Amberg. At that sensational trial he invited the Kreisleiter, and usually several other officials or Party leaders attended. In Nurnberg, too, he conducted such political trials. I can only remind you of the Grasser case, where the Gauleiter too, attended.
Q Just a moment. Have you a glossary of slogans on your table?
A No.
Q In what, witness, consisted the brutal manner of Rothaug concerning his collaborators?
A Like Oeschey, he did not allow anybody to have a different opinion. If an associate judge upheld a different opinion, he first of all tried to mock him by saying, "You know nothing; you have been here for only a very short time, and you can't judge matters," etc. He also played one associate judge against the other. If he did not like one opinion, he used to say to the other associate judge, "Well, look at him", etc.
Q Was that in connection with the fact that, as you yourself said today, you did not master the legal language?
A I didn't say that. I said only that I did not follow it closely in one case, and it has nothing to do with that. I say only that that mocking, contempuous manner in which he treated us -
Q Were those the unfair methods of which you speak in your affidavit?
A Not alone. He could also become very ruthless. If one did persist in one's opinion, he become rude and barked at us. I can remember one case. It was in Regensburg. I believe it was a malicious acts matter. It happened in the judges' room. I took the liberty to say to him that I could not understand that a state, and a strong state such as the Third Reich wanted to be, needed to use such guns, whereupon, in a brutal and excited manner, he interrupted me and for days complained to me about this incident, and it still surprises me that he did not report me to the higher authorities, as he did in a variety of cases concerning defense counsel, who, perhaps at a session, said something which he thought was inadmissible.