Q. Witness, please state whether, when the Prosecution arrived at the opinion, that possibly during the main trial, the death penalty should he asked for, whether in such a case the opinion of the Reich Ministry of Justice was asked for.
A. One did not always request the opinion of the Reich Ministry cf Justice, but it was reported to the Reich Ministry of Justice that the Oberstaatsanwalt had the intention to request this or that penalty.
Q. With this report was there also a description of the facts connected with it?
A. The indictment was submitted of which the Chief Public Prosecutor had two copies, to the General Public Prosecutor, one of the copies was submitted.
Q. In this application was there a remark made as to which application for penalty the Prosecution was going to make, or intended to make during the session -
A. Well -
Q. Just a moment. If the facts proved to be correct during the trial, on which the indictment was based.
A. That was the natural requisite.
Q. Did the Ministry of Justice then issue a special agreement, an approval of this intended application, or did the Reich Ministry of Justice give its agreement by silence?
A. That differed. In most cases, no opinion of the Reich Ministry cf Justice was given. In some cases supplementary opinions of the Reich Ministry of Justice may have taken place.
Q. In any case, the silence of the Reich Ministry of Justice meant the approval of the application of the prosecutor.
A. That is how it would have to be taken.
Q. Did it belong to your task also to examine whether legal aides against sentences of the Special Court, Nurnberg, should be admitted or refused by the prosecution?
A. I did not understand your question.
Q. Let me repeat. Did it belong also to your duties, to examine whether legal aids against sentences of the Special Court in Nurnberg should be made by the prosecution or should be denied or refused by the prosecution?
A. It was part of the duties of the General Public Prosecutor to examine whether in individual cases a clemancy plea should be suggested, or whether because of lacks in the sentence the nullity plea should be initiated.
Q. Did you have to examine whether possibly a reopening of the case by the prosecution should be undertaken?
A. That, of course, was included probably in the tasks.
Q. Thus, there was an examination of the sentences extensively so that the facts which were determined, as well as the application of tho laws, were considered?
A. One has to make the limitation that the facts which had been found out could not be examined by the General Public Prosecutor; only the sentence was submitted to him, and he had to forward it to the Ministry of Justice; thus, he could not examine whether the facts in a case had been determined correctly.
Q But, you undertook an examination of the applications of the laws and you found out whether there were misgivings on legal grounds?
A Yes.
Q Can it be supposed, therefore, that from the legal point of view, there was no reason for contesting of a sentence if you did not make use of any legal aid?
A No, one cannot absolutely say so. In some cases, it was much more advisable to make a suggestion for a clemency.
Q But, in any case, it was supposed that the General Public Prosecution undertook some kind of steps if any misgivings of any kind against the sentence existed?
A Yes, if we discovered mistakes in the application of the law in the sentences, then, of course, in the report to the Ministry of Justice we called the attention of the Ministry to this mistake.
Q How often do you estimate that you had calls to contest the sentences of the Special Court of Nurnberg which were issued under the presiding judgeship of Rothaug?
A I cannot answer that question, but repeatedly the General Public Prosecutor suggested the nullity plea.
Q In favor of the defendant?
A Yes, in favor of the defendant; whether this happened especially at the time of Rothaug or at the time of Oeschey, that I do not know.
Q How many cases are you concerned with here?
A I cannot say that, even approximately or to the best of my conscious; I cannot say that.
Q Do you know Rothaug personally, witness?
A Yes.
Q How often did you speak with him?
A Very seldom.
Q Can you approximately state how often?
A I cannot say that, approximately, even.
Q In any case, it was very seldom and very little?
A Yes.
Q How often were you present in his court sessions?
A I estimate, but this is just an estimation, about, perhaps, five to seven times.
Q Do you have, approximately an estimate how many cases Rothaug handled during the course of a year?
A No.
Q Perhaps you gained insight into how many cases were tried at the Special Court during the years?
A I have no idea about that at all.
Q In the few cases in which you were present, did you gain some impressions during those cases, that you can say that you know Rothaug?
A Yes.
Q Can you remember, witness, that an associate judge of the Special Court in Nurnberg approached you once, and complained to you because in some way or another, in some form, you made a certain reproach to him that he was working for the Special Court?
A I do not remember that any more.
Q Of course; you cannot remember any case?
A No.
Q You do not know either that Rothaug was informed that this happened?
A I do not know that, either.
Q When were you promoted to become an Oberlandesgerichtsrat?
A In October 1942.
Q Did Dr. Rothaug put any difficulties in your way at that time, to your promotion?
AAfter my promotion I heard that Rothaug had addressed a very vivid protest to the Reich Ministry of Justice because I who was an enemy of the Nazi was promoted.
Q Who told you that, please?
A The then, Ministerialrat Dr. Miethsam, told me that only some months ago. At that time I did not know of that.
Q Did Rothaug not have enough power with the higher authorities to prevent your promotion or did he not voice his objections with enough intensity?
A I do not know that. Dr. Miethsam said in an affidavit that, at that time, when the suggestion for my promotion was submitted to the Party Chancellery, a gentleman of the Party Chancellery or from some other Party office appeared in his office, that is, Miethsam's office and in the name of the Party, objected protested, against my promotion because I was religiously tied and politically unreliable. Thereupon, Dr. Miethsam said that he represented the point of view of the Ministry, that because of my official achievements, I was due for a promotion and should be promoted. The negotiations with the Party Chancellery had then extended over several months, and in the end the Party Chancellery had approved the promotion, but had maintained their political misgivings when the promotion was made public in Nurnberg. The Gauleader of Frankonia addressed a sharp protest to the Ministry about the promotion. That was one of the reasons that Oberlandesgerichtspreisent Doebig, as a penalty, was transferred to Leipzig.
Q Is the affidavit which you just mentioned, one of the many affidavits which were taken at the time of the denazification court hearing?
A Yes, that is an affidavit which was given to me in the framework of my denazification court proceedings. It was put at my disposal by Dr. Miethsam in order to prove that I was not promoted in consideration of my Party membership.
Q Did you also make an affidavit for Dr. Miethsam?
A No.
Q Did you obtain an affidavit for Dr. Miethsam?
MR. WOOLEYHAN: Your Honor, I object to this continuous line of questions about one Dr. Miethsam, who is completely beyond the scope of the affidavit.
DR. KOESSL: May it please the Court, in this case apparently there is again a question of denazification court proceedings, and in my opinion, it is absolutely an opinion of the credibility of the witness. If one can refer to the testimony of a denazification court.
MR. WOOLEYHAN: My position is, Your Honors, this witnesses credibility can be adequately tested in the material contained in the affidavit and questions relating thereto.
THE PRESIDENT: Maybe the answer of the witness which was given before the objection was made might determine this entire matter. May we have that answer. One of the Reporters can read the answer, if he will.
Thereupon the Reporter, Mr. Beard, read the following questions and answer:
Q Did you also make an affidavit for Dr. Miethsam?
A No.
Q Did you obtain an affidavit for Dr. Miethsam?
JUDGE BRAND: There was no answer to the last question?
MR. BEARD: (Reporter): No, sir.
THE PRESIDENT: It pertains to a matter that goes to his credibility; he may answer the question.
Q All right, I asked you whether you had obtained an affidavit for the denazification trial of Dr. Miethsam?
A No.
Q You said, witness, that the sentences were also tested on legal grounds, these legal grounds were always examined; did you, thus, in each case use any legal recourse or, at least, by means of a clemency plea, undertake anything against a sentence, if there were legal misgivings in your mind?
A Yes.
Q Now, I want to ask you now how you can say that Rothaug had almost given the impression, that perhaps, also, due to his ambitions, he tried to establish his career at the expense of the defendants?
A I make this statement because I witnessed the methods of the defendant Rothaug, that he applied during the trial, and I repeatedly had an opportunity to observe him. The conduct of the trial was organized in such a way that, in my opinion, it was not correct. It was cynical to such an extent, and psychologically affected the defendants to such an extent that it could hardly be said to be an ordinary trial any more in many cases.
THE PRESIDENT: Has the witness finished his answer?
THE WITNESS, DR. JOSEF GRUEB: Yes.
THE PRESIDENT: Before proceeding any further, we will take our usual recess; before doing so, I would like to inquire about witnesses for this afternoon session. The have made fine progress this morning and we are running out of material.
I think at this time I would like to withdraw a little lecture that I gave a few days ago. I thought perhaps the Defense Counsel had not been as experienced in cross examination as the American lawyers might be, but they have either had lots of experience or they learn their lesson rapidly. I think if they took an examination now on qualification in cross examination the grade would be one hundred percent.
And, now what will we do about this afternoon. How many witnesses are available for this afternoon?
DR. KOESSL: There is a Dr. Brem that has been announced; and, otherwise, as far as I know there are no other witnesses. However, as far as I know, the afternoon will be taken up by the examination of the witness Dr. Brem and the conclusion of the examination of this witness here.
THE PRESIDENT: Do you think to complete this examination and to conduct the cross examination of the witness Brem, will largely consume the afternoon?
DR. KOESSL: I shall not ask this witness many more questions; however, Dr. Grube, perhaps can give you, can inform you, as to how long we are to deal with the defendant Brem. Not at all, I can say that right now.
THE WITNESS, DR. JOSEF GRUEB: I do not know what the witness Brem is to Me.
DR. GRUBE (for defendant Lautz): I think I shall need about an hour and a half for the examination of the witness Brem.
THE PRESIDENT: Dr. Schilf has the examination of this witness, may be we bad better hear from him?
DR. SCHUBER (for defendant Oeschey): May it please the Court, I only want to mention I have to address a few question to this witness, too, and that I also want to cross examine the witness Brem.
THE PRESIDENT: It appears that we have work enough for this afternoon, so we will recess at this time until 1:30 this afternoon.
(Thereupon a recess was taken until 1330 hours, 22 May 1947.)
AFTERNOON SESSION (Hearing Reconvened at 1330 hours)
THE MARSHAL: The Tribunal is again in session.
DR. KOESSL (for defendant Rothaug): I ask to be permitted to continue with my cross-examination.
BY DR. KOESSL:
Q. Witness, is it known to you that not the Lawyers League established political qualifications, but the Gau Personnel Office, and that the Lawyers League besides other agencies was only asked to give their opinion?
A. About that I am not informed.
Q. Witness, is it known to you that the Lawyers League, the NSRB- at that time, definitely, gave its approval-that you should be first to be put into the position of Oberlandesgerichtsrat, so that the difficulties could have derived only from other sources?
A. No I don't know about that. I don't know about the other matters either from my own knowledge, but I was later informed by Dr. Miethsam.
Q. I see. Witness, in your affidavit you also mention the court doctor, court medical export, Dr. Schamachre. Can you confirm that the medical exports already at the time of the investigation were called by the prosecution, and that these written opinions were available to the prosecution before the main trial?
A. That was probably the case- as a rule.
Q. Is it correct that these written expert opinions were made on the basis of those regulations, and could not be submitted as evidence to the court immediately, and that, therefore, the doctors wore summoned to the main trial and there gave n oral opinion usually in connection with the written opinion that they had given- but that they deviated from their written opinion if the trial had produced essentially new aspects?
A. Yes. That method as defense counsel.
MR. WOOLEYHAN: One moment, please. If the Court please, the question arises in my mind at this time, just how far you can lead a witness.
I object to the question as being so misleading as to practically tell the witness what he is supposed to say.
THE PRESIDENT: Of course, on cross-examination you can ask a loading question.
MR. WOOLEYHAN: I realize that.
THE WITNESS:
A. It was according to regulations concerning procedure if tho export was called in the main trial, but I think that an expert opinion was not handled as the statement of a witness. The court could not base itself on written expert opinions, according to the regulations of the Code of Procedure.
Q. Did the prosecution over object to the manner in which Dr. Schumacher gave his opinions?
A. That I don't know.
Q. Do you happen to know that Dr. Schumacher handled his opinions in the same manner in other courts, for example at the penal Chamber, as he did in the Special courts?
A. I could not state that positively, but I believe so. That was his way of doing it.
Q. Witness, are you able to remember that you were confronted with the Lopata case in your activity with the General Prosecutor?
A. I cannot remember that.
Q. Can you remember that you over saw the Kleinlein case and Schaller?
A. That I don't know, either. I can neither deny nor affirm it.
Q. Do you remember, witness, that as far back as 1943 and 1944 pardons were granted to poles because there were reasons for a pardon?
A. Whether Poles were pardoned I do not know. I remember one single case. A Pole was pardoned, who had saved the life of a German girl. Maybe that was tho reason for the pardon, but I don't know whether that was the case because the reasons which led to the pardon we never know.
The pardon, the decision on the pardon, came from the Reich Ministry of Justice, at least, later on.
Q. The entire procedure concerning pardons was, therefore a very careful re-examination of the verdicts?
A. I could not say that because I had no insight as to how it was handled in the Ministry of Justice. The General Prosecutor was only an intermediary. His task was only to pass on the files, and to state his opinion concerning the question of clemency. For that reason an examination of the sentences took place. For that reason only. A General Prosecutor did not have to revise sentences. Only as far as the question of clemency was concerned, it was of course necessary to examine whether there were any mistakes, any faults in the verdict.
Q. That is sufficient. Witness, do you remember a case which was pending in the beginning of 1942? In that case a pardon was granted after the Special Court, with Rothaug presiding, as far as I know, had pronounced a death sentence on the basis of circumstantial evidence and the defendant had confessed only after the sentence, from which it could be seen that the Special Court was right in his opinion on the basis of circumstantial evidence?
A. I don't know about that.
Q. That was in the Pollack case.
A. I know nothing about that.
DR KOESSL: I have no further questions.
DR. SCHUBERG: I have decided not to enter into cross-examination with this witness.
BY DR. SCHILF (for defendants Klemm and Mettgenberg):
Q. Witness, in your affidavit of 7 January 1947 you also refer to the nullification plea. I assume that you still remember your statements of that time. There is this sentence- I quote--NG-672, Exhibit 179, Document Book 3E, German text page 107, English text page 95, the last third of the document.
..the sentence starts: I quote "It was obvious that the Ministry of Justice only admitted a petition for nullification when it was unfavorable to tho defendant." End of quotation. Witness, may I ask you to tell us on what experience which you had, you based that conclusion.
Court No. III, Case No. 3.
A I came to that conclusion because not a single case had become known to me where the Reich Ministry of Justice had initiated the nullification plea or decided for the nullification in favor of the defendant, whereas in numerous cases, or at least a number of cases are known to me where the Reich Ministry of Justice admitted the nullification plea against a defendant. Of course there were cases of nullification pleas in favor of the defendant, but as far as these cases are known to me, the initiative had to come from the General Prosecutor.
Q This morning you told us that you had to do with these matters, that is, with matters of nullification pleas in favor of the defendants, which you had to initiate, in cases that came from the Special Court of Nurnberg. Are these the cases which you mentioned?
A Yes; I wanted to add the remark that it was not my personal task, but that of the General Prosecutor. Of course, as one of his assistants, I had to deal with these matters, but without the right of decision on my part.
Q In your affidavit the following is stated also, several lines after the sentence I quoted before; and I quote again:
"I do not recall a single case in which Berlin had ordered a nullification plea in favor of a condemned man, on its own initiative, without any suggestion from lower officials." End of quotation.
In that connection I should like to ask you: Wasn't it so, at any rate at least in practice, that the initiative had to come from one side or another; that is to say either, as in your cases, from the General Prosecutor, or, as in other cases from practice, from the defense counsel, in favor of the defendant? Do you have any experience as to whether the Reich Ministry of Justice could, on its part, have the practical possibility to initiate nullity pleas with the Chief Reich Prosecutor, or didn't that have to come in all cases from the lower officials, that is, from the General Prosecutor or from the de Court No. III, Case No. 3.fense counsel?
A The Reich Ministry of Justice, without doubt, had the possibility to initiate a nullity plea on their part and in fact that occurred in several cases as far as I know, and not in favor of the defendant. Of course, my knowledge is based on the Nurnberg area and only on criminal cases, not political cases.
Q You said "the possibility". Do you mean the legal possibility?
A Legal and actual possibility.
Q But practically, the way it happened was that, in the majority of cases, the nullity plea in favor of the defendant had to be initiated by the defense counsel. Can you confirm that?
A I should almost like to say that in the majority of cases, if I can gauge at all, the initiative came from the general prosecutor rather than from the defense, although that might seem surprising.
DR. SCHILF: I have no further questions.
THE PRESIDENT: Is there any re-direct examination?
MR. WOOLEYHAN: No, Your Honor, I have none.
THE PRESIDENT: The witness may be excused.
THE WITNESS: May I just add one remark? I only want to say that my statement, as far as it might incriminate the defendant Rothaug, is made without any animosity on my part and is not influenced by the fact that Rothaug--if it was Rothaug, which I do not know for sure-was against me politically.
(Witness excused)
WALTER BREM, 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.)
You may be seated.
DR. SCHUBERT (Counsel for the Defendant Oeschey): May it please Court No. III, Case No. 3.the Tribunal, may I ask you to take the document book III-A supplement?
Document III-A supplement. It is the document NG-803, Exhibit No. 485.
EXAMINATION BY DR, SCHUBERT:
Q Witness, would you please tell the Court your name and your occupation?
A My name is Brem, Walter; I was senior judge in Schwabach at the local court.
Q Herr Brem, you were an associate judge at the Special Court for a certain time?
A Yes.
Q When was that?
A That was from November 1944 until April 1945.
Q And who were the presiding judges at the Special Court at that time?
AAt that time the presiding judges were Oeschey, Ferber, and lohrer.
Q In your affidavit you discussed the manner of conducting trials, and you criticized the manner in which Oeschey conducted trials.
A Criticized?
Q One moment, I will ask you the question.
And you state that altogether you know of about 25 cases presided over by Oeschey that you attended.
A Yes, I believe that I estimated that correctly.
Q May I ask you the following? In all these cases that you experienced under the presidency of Oeschey, is it true that you believed you had reason to criticize the manner in which they were conducted?
A No, that was not true in all cases; of course, there were several cases where the manner in which the trial was conducted could not be objected to, in my opinion.
Q Wasn't it also the case that excesses on the part of the de Court No. III, Case No. 3.fendant Oeschey against a defendant may have had the reason in the fact that the defendant himself, by lying and obstinacy, had already made the procedure more difficult?
A Yes, in some cases of excesses the reason was apparently that the defendant had caused it. Examples of lies and obstinacy are correct.
Q At that time was the defendant Oeschey very overburdened with work?
A Yes; I had the impression that he was greatly overburdened.
Q Was he very nervous?
A Yes, I believe that signs of nervousness could be seen.
Q Witness, how were trials conducted by Oeschey, objectively speaking? Just a moment. Was he thorough, in your opinion? Were these trials exhaustive? Did they consider elements or circumstances in favor or not in favor of the defendant? What can you say concerning that complex?
A I have not made any observation that in any case an essential fact or an essential circumstance had not been dealt with in the course of the proceedings.
Q Herr Brem, do you remember a case where a local investigation was initiated by the Court and therefore the main trial was postponed?
A Yes. It was the case of a French civilian worker who, if I recall correctly, was called Camille Midi. During the time he stayed in Nurnberg he frequently had found refuge in an air raid shelter. That air raid shelter was located in a building in Nadlersgasse in Nurnberg. That building was damaged by a bomb-hit, and by that bombhit a hole was blasted into the wall of the building. The defendant, Midi, after that damage occurred, had stolen a suitcase from the air raid shelter. When he was interrogated by the police he had stated that he was put in a position to take the suitcase by entering through the hole in the outside wall. Therefore, it was assumed in the Indictment that he had taken advantage of circumstances caused by the war; that is, the fact that this hole appeared in the outside wall and that Court No. III, Case No. 3.he had taken advantage of that fact to take the suitcase.
In the main trial, however, he asserted that he did not take the suitcase because he could use that hole in the wall, but he had entered from the back, through a gate, or through a back door. I don't remember it precisely any more, but at any rate through a normal means of entry into the building.
Thereupon the main trial was interrupted in order to investigate the local conditions on the first spot.
Q. Witness, may I ask -
MR. WOOLEYHAN: May it please the Court, I regard this testimony about this case as strictly defense material, and I do not consider myself bound by those answers. It is completely outside the scope of the affidavit. It is defensive material not elicited from what the witness said in the affidavit that is supposed to be the basis of examination, and I petition the court to be freed from responsibility as far as what the witness has said.
DR. SCHUBERT: May the Court please, may I state my position on that point? In the affidavit criticism is made of the manner in which the defendant Oeschey conducted the trial. To that point I have put the question in favor of my defendant, and a question which is admissible, in my opinion, to find out whether proceedings were conducted in a thorough manner. For that I tasked for an example. That the witness goes into great detail in explaining that example I cannot help. The question was only whether a local investigation took place. I believe that that question, therefore, is in connection with the affidavit.
THE PRESIDENT: The objection will be sustained.
Q. Witness, in your affidavit you pointed out that the defendant Oeschey showed prejudice.
A. Yes.
Q. May I ask you whether it occurred that Oeschey from the outset announced to the defendant that he would incur a certain sentence?
A. I cannot remember any case where from the outset he had announced a definite sentence.
Q. Then you refer to the fact that Oeschey informed you before the session and showed his intentions concerning the extent of the sentence?
A. Yes.
Q. First of all, could you tell me who had studied the files before the trial?
A. Doubtless that was the presiding judge, and if I dealt with the case, I tried to be able to look at the files before. That was always easy, but since I asked for them repeatedly, at the office, in most cases it was possible for me to get hold of the files. Whenever I was not successful I went to the session somewhat earlier and looked through the files which I took from the Judges's table before the session started.
Q. If I understand you correctly then you as the associate judge had a chance to see the files for your own information before the session as a rule?
A. Yes. In individual cases it might have been impossible, but I could not remember any such case with certainty.
Q. Herr Brem, if Oeschey informed the associate judges before the trial and also mentioned the extent of punishment, did Oeschey at any time before the session started make a definite statement concerning the sentence, or did he always make it clear, that in the end everything would depend on the result of the trial?
A. He did not state a definite sentence or the extent of the sentence as the one to be expected. He only discussed in general terms what kind of sentence would be adequate in his opinion.
Q. Furthermore, you state he did not like any contradiction.
A. Yes, correct.
Q. As for contradictions or, let us say, objections, by the Associate Judges, were they ever discussed in court?
A. That varied greatly. Sometimes objections were passed over quickly, rapidly. Other objections agains were discussed.
Q. Herr Brem, you came to the Special Court at that time but you had no experience in Special Court matters, is that correct?
A. Yes, that is correct.
Q. As regards those objections about which you say they were passed over quickly, were they of a kind for which there existed already a standard practice at special courts which you might not have been familiar with?
A. That is hard for mo to judge. There may have been cases for which there was a practice with which I was not familiar.
Q. Wasn't it frequently, too, that an objection was passed over more quickly if the other associate judge was also of the opinion of the presiding judge?
A. Yes, of course, that was the case. If the other associate judge agreed then there was no longer much discussion about the question, the point of the objection.
Q. Witness, in a case where a death sentence had been demanded, or at least was taken into consideration, did you, Witness, over make a suggestion which Oeschey accepted?
A. Yes.
Q. Could you tell us any details about that?
A. As for the facts and the particular circumstances of that case, I cannot remember those. I only recall the following. It was a case where it was not simple to render a verdict, other than the death penalty. I at that time had an idea which, however, I did not consider quite adequate myself, that was to render a more lenient sentence.