A. Footnote 9 to paragraph 81 of Loewe's Commentary in the Criminal. Code of Procedure reads: "Immediate appeal which here exceptionally has the effect of a postponment of the measure, can be made by the defendant himself, by defense counsel and by the prosecution. The provision of Article 297 is not applicable here. The expert, according to his position, cannot raise any objection if his motion has been denied Against a decision to deny the motion the participants mentioned above, since they have no right for appeal, have no right to make any objections Section, Article 3, as can be seen from the provision concerning postponement, refers only to the decision by which the measure is ordered."
THE PRESIDENT: Would you please inform us as to the date of the Commentary from which the witness has been reading?
THE WITNESS: This is Penal Code of Procedure Commentary by Loewe from 1929, That is what has been quoted up to now all the time.
BY DR. KOESSL:
Q. These facts which we have just discussed, were they generally known?
A. This is more a matter of consensus of opinion. It has always been the consensus of opinion and it was, of course, known to everyone who had anything to do only for a short time in this field.
Q. Ferber also mentions disciplinary objections. What does that mean?
A. The disciplinary objection is so to speak, outside the legal channels, outside the competency of the courts. It means that any individual may make a complaint about the attitude of an official or a judge and that to the superior agency, as far as official's actions are concerned, of course, the superior office has no right to interfere with a decision. As far as such disciplinary complaints are concerned, they could only be by far complaints concerning the technical handling of the matter. What a disciplinary compalints would have had to do with this matter is not clear to me.
I cannot understand that.
Q. What was the situation if an indictment was filed with the president of the Special Court which had technical shortcomings?
A. It was simply the following: The indictment was filed with the files containing the result of the investigation by police or prosecution and submitted to the president of the court. It was his task to fix the date for the trial. The question arises now what possibility the presiding judge had to keep an indictment from coming to trial. That possibility was very restricted, according to law, because he could only refuse if the so-called prerequisites for procedure were not there, in the indictment. However, - and I believe that is the purpose of your question - he did not have the right as such to examine an indictment to the relevancy and probative value or on account of the legal foundation for the charges or to object against it. I say that as far as procedure was concerned, he did not have the right to do so. The law did not specify anything in that connection.
Q. Were you compelled, for instance, to fix a date for a case which seemed quite hopeless?
A. A certain routine developed here which was based on the following: In a normal procedure before ordinary courts, between the date when the indictment was received by the presiding judge and the date for the trial, a file had to be composed by the court which was considered the decision to initiate the trial. In that decision the court had the possibility to examine the charges to find out whether the facts could be proven whether the legal foundation was tenable. And the ordinary court, therefore, according to its opinion which it may have had developed, could accept the position which it considered the correct one. That decision for insitiating the trial, however, was not used in the case of the Special Courts in order to make a trial more expedient. But by eliminating that procedure the requirements which had to be fulfilled of course were not eliminated. We also frequently were faced with the problem that we did not consider proof offered in any particular case sufficient or that we did not agree with the legal evaluation contained in the indictment.
Court No. III, Case No. 3.
For that reason, we took up contact with the Prosecution frequently in order to tell them what our misgivings were. The prosecution, on its part, of course, before the date for the trial, still had the possibility to withdraw the indictment or to put it on a different legal foundation then the one originally applied. The prosecution could, as I said, withdraw the indictment or change it.
Q Could that result in any disadvantage for the defendant?
A The purpose of that procedure was also in the interest of the defendant because one wanted to counteract certain deficiencies which were due to the fact that the institution of a decision to initiate trial no longer existed for the special courts. The prosecution, of course, was quite free in its decisions as far as the opinion voiced by the court was concerned. It could stick to its original opinion. They could actually state, that in their opinion, they could bring sufficient proof in the main trial, but in all these cases the date for the trial had to be set and the trial had to be carried out. If the prosecution decided to share the opinion of the court, then, if, for instance, the legal foundation was not sufficient, the indictment was withdrawn and it also occurred that we recommended to make a renewed report to the Ministry in order to have the question examined whether it wouldn't be advisable, in view of the critical questions, that the charges concerning malicious intent should be withdrawn.
Q I believe that question has been sufficiently discussed, witness.
The witness Escher in Exhibit 223, in the case of Kleinlein and Schaller, spoke there of defeating the purposes of the law because, before the main trial, you had informed the prosecution of your opinion, and, according to this opinion, you did not agree with the legal specifications made by the prosecution. He says that your task, according to Article 202 of the Penal Code of Procedure, had simply been, and had been restricted to, the fixing of the main trial. What happened here?
A This letter concerning the case Kleinlein is an example for Court No. III, Case No. 3.the general principle which I have just explained.
In this case, the prosecutor had classified the act by the co-defendant Schaller as receiving, punishable under the decree against public enemies. That qualification was untenable. Schaller had kept, in her darkened apartment, goods obtained by thieves during blackouts. The receiving of such, therefore, could not have been committed without making use of the fact of the blackouts. But, in fact, however, the deciding element of her action was that she essentially helped the thieves and that she agreed, before the acts were committed, to hide their thefts. That, however, was participation as a co-offender and I pointed out to the prosecution by that letter which was mentioned that this offense was not specified correctly from the legal point of view, in order to afford them the opportunity to change the indictment before the main trial so that the defendant should be in a position, before the trial started, to find out about that. That, of course, I could just as well have told the prosecutor personally or over the telephone. However, since I could not reach him directly, I wrote him by way of an interoffice communication. That letter went quite openly, through all channels, which goes to show that there were no objections against it. The prosecutor, however, did not react on that letter. He was not obligated to do so because it was up to him whether or not he wanted to share this opinion. He could decide that quite independently. At any rate, he let it come to the main trial and there my opinion was finally approved and accepted by all individuals concerned. The defendants, if the prosecutor had accepted my suggestion, could have found out about that, not only in the main trial, but a certain time before the date of the trial and it would have become clear to them on what basis the trial would be conducted against them. According to the law they had no right to that, but objectively speaking, it would have meant an additional advantage for them. What we see here is nothing else but the intention to serve the principle, to prepare the main trial in such a manner that it can be carried out without any difficulties, Court No. III, Case No. 3.and I emphasize, whenever a defense counsel came to see me in order to discuss matters referring to the preparation of the trial then, also in dealing with them, I always expressed my opinion because everybody knew that was my personal opinion and not the opinion of the court as such and that it only served the purpose to guarantee that the trial could be carried out without any friction or difficulty.
Nobody would have thought, at that time, to consider that as defeating the purposes of the law or to find reasons in it to challenge the judge with it.
Q Now, we want to deal with another charge, the charge that all the presiding judge had to do after he received the indictment was just to fix the date. Will you please read, in this connection, Articles 155 and 224, of the Penal Code of Procedure, page 428?
AArticle 155 reads:
"The examination and decision is restricted to the offense described in the indictment and the individuals mentioned there. Within these limits, the courts are entitled, and it is their duty, to act independently. Especially, they do not have to apply to the law concerning the motions made to them."
Article 224 deals with the position of the presiding judge.
"The presiding judge may officially order that witnesses be called, or other means of evidence, be brought before the court."
Q Tell us now, quite briefly, what the results were, as far as you as presiding judge was concerned?
A These provisions contain a guiding principle to the effect that the presiding judge, as far as material in favor or material in disfavor of the defendant is concerned, can act on his own initiative with the interest of a regular and orderly preparation of the main trial, and that he can act in this independently of his associate judges.
Q Now, Attorney Escher in Exhibit 223 stated that had he known that you informed the prosecution in the Case Schaller he would have had an opportunity to object against it. What can you say concerning this statement by Escher?
Court No. III, Case No. 3.
A The fact that a reason existed to challenge a judge in itself does not mean that there was a question of defeating the ends of the law. It has to be emphasized here, however, that the letter against which he objects did not concern Kleinlein, but the defendant Schaller. Escher, however, was defense counsel for Kleinlein and I cannot see, therefore, how he could have had the right to challenge the judge on account of a letter which did not even concern his client Schaller.
Court No. III, Case No. 3.
Q But now we want to prove that it would not have been possible to challenge the judge at all. Will you please read paragraph 24 of the Penal Code of Procedure on Page 123?
A Loewe Legal Code of Procedure, Article 24:
"A judge, in cases where he is excluded to act as a judge by the law, or when there is a suspicion that he is biased, may be challenged. On suspicion of being biased, the challenge takes place if there is a reason which is designed to justify suspicion against the independence of the judged."
In footnote 3a, the following statement is made in that connection:
"If the judge is of a legal opinion which is not in favor of the defendant, this is not sufficient to base upon it a motion challenging the judge."
Then, decisions of the Reich Supreme Court are mentioned and other sources.
Q Escher, therefore, wouldn't even have had the possibility to challenge you as a judge?
A The judge in Germany always had the right to state his legal opinion also to third persons without that giving cause to the right to challenge a judge.
Q In the English transcript, on pages 1680 and 1683, Ferber reports that the special court at Nurnberg had three penal chambers. In two-thirds of all cases you had been presiding judge. What do you have to say about this?
A His manner of expression here is wrong. We did not have three chambers, but three shifts, because there existed only one penal chamber and it was so arranged that, at the beginning of the war, together with my deputy, I had to act on two shifts; later on, three shifts with another deputy. There were always two associate judges with me or with my two deputies. As to how the cases handled were distributed among the individual shifts or presiding judges could be found out pre Court No. III, Case No. 3.cisely on a basis of the session diaries which I kept where very precise notes are made about the dates of the sessions, who was presiding judge, and who were the associate judges.
Unfortunately, I have not succeeded, up to now, to find this session book which would be very interesting also in other respects. If Ferber claims that two-thirds of the cases were tried by me, I have to contradict. I would not mind to take the responsibility for all cases if I had tried them, but that statement of two-thirds is not in accordance with facts.
THE PRESIDENT: Well, what is your estimate as to the proportion of cases that you tried? You say he is wrong, but you don't state what is correct.
THE WITNESS: I have no actual basis to make any estimate, but I don't believe that I tried more than one-half of the cases, so that I probably tried one-half, whereas my deputies tried the other, but it is quite possible that that proportion is still more in my favor, because frequently I only went on trips to the sessions outside Nurnberg, whereas most cases were tried in Nurnberg.
BY DR. KOESSL:
Q I submit to you Exhibit 238. That is the list of death sentences which were executed. What can you say concerning that Exhibit 238?
A I could discuss cases which are on this list which I certainly have tried, as far as these names still mean anything to me or as far in the meantime I have seen files which show that I had something to do with them. As for the majority of these cases, I could not make any definite statements. I could not even say which one of my deputies was presiding judge in these cases, but that question also could be clarified beyond doubt if one could find the session diaries which would eliminate any doubt in this direction. If it is considered important, I am quite ready to designate those of the cases which I can say with certainty I had to do with.
During 1936 and 1937, no death sentence at all was pronounced Court No. III, Case No. 3.at the Special Court in Nurnberg.
Only the end of 1938 brought the case Heller-Muendel. Here, the 16th of December 1938 is listed as the day of the sessions and execution of sentence. Up to now, I always spoke of the 18th of December, 1938, because that was the way I remembered it.
Then, there is a case Weidinger, Erich. Here I remember that that was no special court case at all, but a case before the Jury Court at Nurnberg. How that case happens to be listed on this list of death sentences pronounced by the special court I cannot say, of course. That was a case of murder by poisoning.
I had to do with the case Schruefer, also the Case Gaishauser. As for Hoerndler, I haven't seen any files recently. In 1939, according to that, there would have been only two death sentences. Hoerndler was sentenced in 1940. I handled the Case Engelbauer. That case has been discussed here in detail. Then there's a trial against three, Fenn, Stengel and Schulz. Those were the first sensational chain burglaries during blackouts in Nurnberg. The Case Wendel is known to me. Yes, I handled the Case Wendel. Kastner, I don't remember. Chlebowski, I don't remember either. I don't know anything about TenElsen. Breitenthaler, I don't know anything about that. However, I know the Case Neupert, Egon. That was a sex offender who, as a serious sex criminal, was sentenced to death. Then I remember the Case Wild. I handled that, and that was mentioned in connection with the testimony by Fritsche. The indictment, in fact, was submitted in evidence here. I can't say anything about Gruber, Schmitt, Vostarek, Bakalarz, Greiner, Rost. In all these cases I may have had something to do with them, but I don't know. Then, there's the case of Dwetryszyn, Iwan, Klarzynsky, Josef, and Olejniczak, Martin. They were three Poles, but they were not voluntarily or involuntarily as agricultural workers in Germany, but they were roving bandits who took advantage of the conditions of the war to travel into Germany and they committed quite a number of very serious burglaries and also, in Nurnberg, committed a Court No. III, Case No. 3.burglary on Koenigstrasse in a jewelry shop by taking advantage of the blackout and killed a man.
THE PRESIDENT: Will you specify -- you say you knew about the case. Would you specify in each case that you mention whether you tried it or not? Did you try these cases?
A. Yes. What I meant to say is that I had tried these cases. If I said that I had to do with them, and in the case of these three Poles, for instance, it is of importance whether the people were brought to work in Germany or not; and I wanted to explain that these were people who quite voluntarily and for criminal reasons had come to Germany and were apprehended after committing burglary and murder. The following cases, Gruber, Becher, Bayer, Fiernak, Schulz, Stockmeyer, Rosskopf, Rottenkolber, I remember by name.
Q. The names before Rottenkolber apparently you did not remember, is that right?
A. Also in the case of these names it is quite possible that I tried the cases, but I could not say so. There is also the possibility that others were presiding. I only want to mention the cases now of which I am absolutely sure. The case Katzenberger - I was presiding judge in that case. Also in the case of Schieber, Wilhelm; in the case of Tiefl, Johann; Ketterer, Christian; Bellmer, Elisabeth; Grasser, Friedrich; Schegerer; Koziak, Adam; and in connection with this case I want to state that the death sentence wasn't our sentence, but as is noted here the sentence by the Reich Supreme Court of the 7th of November 1942 and executed on the 9th of January '43. That was a case which a Pole had given a pair of pants to a Serbian prisoner of war in order to make it possible for him to escape to his family. In the case of Lopata I was presiding judge. Strus, Durka, I was also presiding judge. Reges, Robert, I believe that I was presiding judge in that case. In the Kleinlein-Schaller case, also in the case against Platzer; I believe that I also presided in the case of Eisenhofer, Franz. How complete this list is, of course, I cannot say. Toward the end it sort of becomes thinner, but I do not happen to remember any name from the time of my work which is not listed here.
Of course, as I emphasized repeatedly, there is the possibility or even certainty that I presided over a number of other cases outside of those that I mentioned, but if I am asked to point them out on the basis of my recollection alone, I could not do it, and that problem could be solved by the method which I have suggested. A question which may be of importance here is the one which was touched upon by the witness Elkar, who asserted that the decree against Poles and Jews had not meant much in the practice of the Special Court in Nuernberg because even before that decree had come out I had interpreted the law in such a manner that I did not need that decree against the Poles. However, a comparison made among the persons on this list shows that there was an increase in numbers of Poles sentenced to death after that decree had come into force, and then I also have the following to say: When I left Nuernberg, I had marked down all the names of individuals on a slip of paper who had been sentenced to death in cases over which I had presided. I believe also that I marked down next to each individual name where the sentence had been executed and where it had not, but I am not sure of that because for future cases it was often of importance to know what opinions existed somewhere else, and I believe that I can say almost with certainty that the number of death sentences which I have thus marked down was around eighty. I have to add, however, that list contained all of them, also death sentences pronounced by the Court of Assizes, and also sentences which had not been executed but commuted. I could not say anymore at this moment in connection with that list.
Q. What was the procedure according to which the associate judges were determined for individual days.
A. That procedure was drawn up on the basis of Article 69 of the Judicature Act.
THE PRESIDENT: What did this figure 80 represent? The cases in which you presided or all of the cases in which the death sentence was pronounced?
A. No, no, I said I only marked down those death sentences which I personally was presiding judge.
BY JUDGE HARDING:
Q. Was that also the penal chamber in the district court?
A. No, those are death sentences which had been pronounced in my district and the Court of Assizes, and the Special Court that were in that district. That list also contained death sentences which had been pronounced at the Court of Assizes when I was presiding. In addition they contained also sentences contrary to this list where the sentence had not been executed but commuted by way of clemency procedure.
Q. Eighty cases in all courts, and some of those you say were commuted subsequently?
A. No, of these 80 the majority certainly was executed, while a certain percentage was not executed because it had been commuted by way of clemency procedure.
BY DR. KOESSL:
Q. You just said that according to Article 69 of the Judicature Act a roster was set up for the associate judges for the individual days. Would you please read that provision as we find it in Loewe's Commentary on 1146?
A. Article 69 in Loewe's Commentary on the Judicature Act says as far as the penal chamber is concerned, the presiding judge distributes the work to its members. That provision is also important in connection with other questions.
Q. The witness Gross asserts in his affidavit, which is Exhibit 221, that before the session already you had put a red exclamation mark on those cases which according to your intention a death sentence should be pronounced which showed that you were prejudiced. What would you say to that?
A. I can briefly say the following. That entire question of the exclamation mark contradicts itself. If I only may be permitted to explain the office routine with reference to it. This is what happened. When I received an indictment, and I came to the conclusion that possibly this may he a case for a death sentence, then by law I was duty-bound officially, that is to say, without any motion being made, to appoint a defense counsel.
By that act of appointing the defense counsel, therefore, it was clearly manifested to everyone what my opinion was and what possibly my opinion would be in the main trial of that case. It is important to know that. In addition to that, in most cases the indictment itself made it clear what possible penalty was expected and--
THE PRESIDENT: Just a minute. We will recess until 1:30 this afternoon.
(The Tribunal recessed until 1330 hours, 18 August 1947.)
AFTERNOON SESSION (The Tribunal reconvened at 1330 hours, 18 August 1947)
THE MARSHAL: The Tribunal is again in session.
DR. KOESSL: May I continue, please?
OSWALD ROTHAUG -- Resumed DIRECT EXAMINATION -- Continued.
BY DR. KOESSL:
Q.- Witness, please continue the explanation of the last question.
A.- This morning I finished saying that there had been no reason for designating certain cases as getting the death sentence in the session diary by putting a read exclamation mark there. The reason for that exclamation mark was this. The new cases were entered as they came in, and the day and the hour was marked and fixed and duly entered in the session diary. Regularly one could tell by the offense and the number of witnesses -- both had been entered in the session dairy -- one could tell by that roughly how long the trial would last. By leaving open the interium period the next case was set. Frequently, however, it was necessary to try other cases during those intervals in the hope that one would somehow manage, but it happened that cases came before the court for which only a few witnesses had been called but which were very extensive all the same. So that a new trial shouldn't be set too soon after, or no other cases were set in between, one put an exclamation mark behind the critical cases which was intended to ask for the needed time. As I myself was frequently away out of town and my deputy dealt with the session diary during my absence, that arrangement was necessary. All knew the meaning of it. That is what I have to say to the question of the exclamation mark.
Q.- In the same Exhibit 221, Gross continues by saying that you had never passed on the files to associate judges for their perusal before the trial and that hereby you made the associate judges uninformed lookers on kept them under pressure in a satanic manner.
In the affidavit by Groben, too, 224, it is maintained that until the trial, you alone had the knowledge of the contents of the files. Thus, the associate judges had only had secondary importance.
Q.- I have to say this. When the indictment together with the files had been received, the day for the trial was scheduled. From the date on which the trial was fixed until the opening of the trial, as an average and as a rule there was a time intervening of two to three weeks. When the date had been fixed, the files were sent to the office where the indictment was filed and from where the witnesses were called. After two or three days the files were returned to me and were placed on a special table in the order of the dates. That was the method in which they were filed in my office. From the diary which I kept on my desk, everyone of my assistants could see to what sessions he had been assigned and everybody did look there for everybody was interested to know whether he had been assigned to Nurnberg or to a place outside of town. If he wanted to peruse the files, he went to the table where the files were openly displayed, took the files which concerned him, and was then able in his office to study them in peace. Afterwards, he returned the files to the table. That was my method for 6 years. Nobody was prevented from studying the files, nothing was locked in my office, everybody had access to everything. Naturally, I did not think that it was my job to carry the files after Mr. Gross. On account of the strain of my work, I did not have time to do that; besides there were people who were young enough to make it possible to let them carry out these few small tasks. As to how I am supposed to have made by associate judges into mere lookers-on and have given them places of only secondary importance, and keep them under pressure in a satanic way, that is something which my mind cannot comprehend. Never did Groben complain to me that he was having difficulties in getting hold of the files. It did happen that an assistant told me that he had not gotten around to examining the files, and it is altogether possible that I may have said that wasn't necessary because the facts of the case were simple and the matter would be discussed in detail at the trial.
I personally as an associate judge almost never examined files before two trial because the whole contents of the files as far as it was to become the basis of the judgment has to be discussed at the trial, and may only be used as a basis of the judgment in the form which is given to the material at the trial. Quite apart from that fact, I cannot understand to what extent in that manner any pressure could have been asserted. After the trial, the files were sent to the expert, that is to say, the associate judge who was to write out the judgment, who received the files; that is to say, if he wanted to, he, in any case, had the opportunity to control the matter and to check up as to what extent I had made the results of the trial the basis of the judgment. I never saw it happen that my attention was ever drawn to the fact that I had omitted one circumstance or another at the trial.
THE PRESIDENT: The next question.
Q.- Under cross examination, Gross asserted that you had distributed the associate judges in such a way that they would offer the least resistance. The page in the English transcript is 2880.
A.- I myself must say that I cannot remember a single case where anything happened which one might describe as opposition. In our chamber things were no different from what they are in all chambers all over the world, that is to say, when one dealt with the material, one tried to get to one unanimous opinion and that was in the interest of that goal. The legal question and the substantive question were discussed from that angle. I never assigned stuff from the point of view that I didn't want to have a certain associate judge at a certain trial.
THE PRESIDENT: You have answered the question. Let's stop when you finish.
Q.- Who were the associate judges in the Katzenberger, Krasser and Lopata cases, just to mention a few special cases which have been discussed here?
A: Those three cases of which special emphasis has been made here, in my view themselves refute the charges which have been made against me.
THE PRESIDENT: Just a minute. The question was who were the associate judges in those three cases. Answer the question who were the associate judges in those three cases. Name them.
A: In the Grasser Case, Ferber and Gross were the associate judges; in the Katzenberger case, Ferber and Hoffmann were the associate judges; in the Lopata case Ferber and Pfaff were the associate judges.
Q: Affidavits Escher, Exhibit 223, Groben Exhibit 250 and Rauh affidavit 255, describe the setting of trial in courtroom 600 as a sign that the death sentence was to be expected. In what cases did you decide that Room 600 was to be used?
BY THE PRESIDENT: Let me just ask you a question. Is your answer going to be that you decided to use 600 when the audience was so large that the other court would not contain the people? I think you have answered that before. I am asking you again.
A: No, no, my answer was going to be a little different, Your Honor.
Q: Go ahead, you made that other answer already. Go ahead.
A: I wanted to say, considering the charge that has been leveled against me in this connection, I would like to mention the same ideas here as the one that I had to tell you about in connection with the red exclamation mark in the session diary. Court Room 600, as such, could not terrify anybody because it was known beforehand that a case was to be tried there where the death sentence had to be expected.