A I have pointed out that before the execution not one drop of liquor was consumed. The only man who consumed liquor was Heller, because he had asked for it, it was his last request.
Q In connection with the Heller-Muendel case, did you have any difficulties with the authorities of the Administration of Justice?
A The big conflict in this matter, so far as I know, occured when Hitler had rung up the Ministry of Justice in the matter and had talked to them in a very ungracious manner. I myself had played no part in those events and I was not interested in them. Friction with me occured only when I interrupted the trial at 12 o'clock to go to my home until 2 o'clock. During that interval three messengers were sent after me with the request that I return to the court house immediately and continue the session. The Ministry was demanding that, and the man at the Ministry wasn't leaving the telephone alone for one minute. However, I was not impressed by that, but I returned at 2 o'clock sharp and then continued the trial. Apparently that was held against me.
Q In connection with that, you had an experience as to how the Administration of Justice acted in the cases of such criticism.
A That matter had a very unfortunate result for Westphal, who was a defendant and who is deceased now. He was the man who, in the end, had to hold the baby.
At any rate, from that I learned that I would never again discuss anything over the telephone, because such telephone conversations never give a guarantee that people will stick to what they say over the telephone.
Q According to Ferber's testimony -- English transcript, page 1624 -- the defense counsel appointed by the Court were not able to do their work properly on account of Streicher's presence. That was not important for the judgment, but for the position which the Court took in regard to the clemency plea. What are your comments on that?
A Here again we have an instance of a completely misleading statement with regard to legal situation. Under the German code of penal procedure a trial has only one single purpose, and that is to establish the basis for the judgment; the trial does not aim at decisively preparing a decision on the clemency plea. Consequently never and nowhere has it never been the custom of the defense counsel, at the trial, to give their views on the clemency plea as such, because it was not the Court that was competent for this decision, but, in the final analysis, the leadership of the State, and the Court was only heard as far as its opinion was concerned. I know that the defense counsels made exhaustive statements, but I would like to point out that nothing much could be said in this case since the evidence was completely clear and the legal consequences for the judgment were absolutely certain.
It is interesting to me to hear that the defense counsel are said to have complained that on account of Streicher's presence they were not able to do their work properly, because I have just remembered that Denzler told me at the time that Streicher had gotten quite excited because the defense counsels had not worked hard enough at their job. In truth, what happened was that the statements made by the defense counsels were in an altogether harmonic relationship with the situation such as it was.
Q Was clemency exercised?
A Clemency was exercised on Muendel because she was pregnant. The pregnancy in itself would not have precluded the execution of the sentence after the birth of the child, but, as one came to hear, Hitler is supposed to have described it as an inhuman action if one had kept the woman alive until the birth of her child and had executed her afterwards. No clemency was exercised on Heller.
Q Now a last question. When was that pregnancy discussed for the first time? You have mentioned that once before.
A I believe I have answered that question.
Q We now come to the Durka-Struss case. In that case too you are alleged to have placed restrictions on the defense.
THE PRESIDENT: What was the name of that case?
DR. KOESSL: The Durka and Struss case.
THE PRESIDENT: How do you spell that?
DR. KOESSL: D-U-R-K-A, was the one Polish woman and the name of the other was Struss, -S-T-R-U-S-S.
That case in mentioned in the Kern affidavit, Exhibit 232; in the Kassing affidavit, Exhibit 477; and in the Markl affidavit, Exhibit 154.
Concerning the Kern exhibit, the pages in the English transcript are 3809 through 3811, Heller pages 3934 through 3936. For the Kassing affidavit, the English transcript pages are 3997 through 3999; and in the case of the Markl affidavit the English pages are 3654 through 3668.
BY DR. KOESSL:
Q Well then, in the Durka-Struss case, witness, you are supposed to have placed in admissible restrictions on the defense. Do you remember that case?
A Yes, I do.
Q When did you hear of the case?
A To put it briefly, it was a case of arson committed by the two Polish women at the armament plant. I heard of the case for the first time on a Saturday morning. Public Prosecutor Markl came to my office and told me that a case was about to come on which, according to instructions, would have to be dealt with the very same day; it was a case of sabotage and a full confession had been made; the two female offenders had been apprehended at the place where they had committed the action, and immediately after they had committed it. I then opposed such treatment of a case, and I used a very strong language, for the very reason that it was a Saturday and I wanted to be left at peace. However, Markl told me that he was quite innocent, he had received instructions from up above. Evidently the Ministry of Justice was in a particular hurry about this case because it was feared that the police might intervene. In any case, the matter was to be dealt with by court proceedings.
Markl then told me that he would try to compose the indictment as quickly as possible and to have the indictment and the files reach me as quickly as possible.
Q Did you take any steps?
A. Although I would only have been obliged to take such a step after I had received the indictment and the files, the first step I took, however, was that I contacted two attorneys -- among them attorney Kern---and I told them to come to see me. According to my request they came immediately. I informed each of them about the case, and I then talked to Kern. I remember that very well; it happened at my office. I explained to Kern that I could not change the matter, as the law compelled me, if necessary, to hold the trial on a Sunday. Kern had some mis-givings as to whether he would be able to prepare his defense, and he said that possibly he would have to refuse to take on the defense. I then said to him, "Well then, we will have to do without you." Naturally, that did not mean that we would have been able to do without a defense counsel, for I could not have conducted such a trial without that. He then promised that he would try and get hold of the files himself.
I then contacted the Public Prosecutor and asked him to hand over the files to the defense counsels before I received the files. Therefore, I was of the opinion that both defense counsels would actually get right down to work. At any rate, I did not hear anything further about the defense counsels having been unable to finish their work; neither of the two came and complained to me. But quite apart from that, according to the legal situation, I would not have been permitted to take that to consideration, although one did so in effect because, as the law demanded of me, I had to fix a time for the trial immediately, I had to conduct the proceedings, and in so doing I was not permitted to take into consideration the fact as to whether the defense counsel had sufficient time to prepare his case before the trial.
Q. Why was it that the time limit was so short? "hat has been said is that if you wanted it, it might have been possible to extend it.
A. In all these questions what we are concerned with is not whether the judge wants it or whether the judge doesn't want it, but under our code of procedure we had to find out what the law demanded and we had to act in accordance with the will of the law. Naturally, where that could be done, one gave way.
Q. Please tell us briefly about that case.
A. Naturally, after all these years, I do not remember all the details about the case, but I do remember this.
The two Polish women committed arson in that armament plant. One of them entered the room concerned and threw a burning match into the room, where highly incendiary objects were housed in order to start a fire, while the other woman went into a side corridor where she watched so that the other Polish woman would not be surprised while carrying out her plan. A fire was started, but it was possible to extinguish it. However, the two girls aroused suspicion and were arrested. While they were being arrested one of the women threw a letter, which she had been carrying on her person, down a shaft. Somebody saw that, and the letter was found. That letter revealed beyond any doubt that both women had discussed that plan with each other, and that letter itself would have been sufficient to make certain that both women were offenders in the case.
As to how long before the trial the offense had been committed, that I can't say, but I remember vaguely that a few days intervened.
Q. How did that arrest take place, and when were they arrested?
A. The arrest was made on the spot where the offense was committed.
Q. How ware the women brought to Nurnberg?
A. As they had committed sabotage, it was the Gestapo in Nurnberg which was competent for dealing with the matter. I assume that the two Polish women were moved by the Gestapo to the police prison in Nurnberg, that the Gestapo kept them in custody there, and that it was there that the decisive interrogations were being carried out.
Q. What was their attitude to their offense?
A. They both confessed in full, and they said their motive had been that, as Polish women, they had committed that offense for nationalist reasons and not to do personal harm to anybody.
Q. What was the reason for the Special Court being competent?
A. The competence of the Special Court was based on Article 8-A of the Penal Code of Procedure, according to which the Court is compete for passing judgment where a defendant is under detention by the police.
Q. And how do you think that evidence would have been judged elsewhere?
A. In my opinion this was an altogether clear case of sabotage, which I think --- with all respect that one may have for the offender who acts for nationalist motives -- during a war, would have been punished by the death penalty in every country in the world.
Q. How did the defendants defend themselves at the trial?
A. One of the defendants stuck to her confession and she quite frankly and proudly stated the motives for her offense. In contrast to her, the other defendant suddenly denied everything, but did admit that she had made a confession to the police. I asked her whether the police had exerted compulsion. She said no; and the other Polish woman who stuck to her confession also said that the interrogation had been perfectly correct.
I talked to her emphatically and put it to her that her friend was incriminating her. I asked her whether she had had an argument with her, and what her friend's reason was to incriminate her as well. The only answer she was able to give me was, "My friend has no wish to die by herself," I also asked the Polish woman who had confessed and I put it to her that it was a serious responsibility for her if, unjustly, she incriminated the other girl.
However, she denied that very definitely.
Finally, we had that letter.
I remember that I asked the official of the Gestapo to come to see me, and I questioned him closely in order to make certain that the interrogation at the police had proceeded correctly. He said that only correct methods had been used. He made that statement under oath, and one could believe him. I also questioned the interpreter as to everything the Poles had said. That was the interpreter who translated for the police; he was a man who had nothing to do with the police. He, too, described the events in the same way in which they finally incorporated in the judgment.
As for an adequate clarification of the facts of the case, no criticism can be leveled against it if one wants to be honest.
THE PRESIDENT: May I ask you a question? The witness referred to Paragraph 8-A of the Penal Code. Is that in evidence?
DR. KOESSL: That article is not in evidence. It is a very short article.
THE PRESIDENT: I should like to hear it.
DR. KOESSL: I have it here. Yes, Your Honor.
(Volume submitted to witness)
THE WITNESS: This is the Code of Criminal Procedure, with the most important by-laws and the war procedure regulations. It is a commentary by Otto Schwarz. This is the 12th edition, revised and amended. It was published in 1943. Provision 8-A says:
"The jurisdiction, lies with the court in the area of which the defendant is under detention at the time the indictment is filed on instruction of the authorities."
THE PRESIDENT: That law did not extend --- I should like you to put your earphones on so you can hear me. The law to which you have just referred did not extend the jurisdiction of the Special Court to all crimes or to any crimes except those which were specifically granted to the Special Court, did it?
THE WITNESS: Your Honor. That provision refers only to the so-called local competency; the factual competency results from other provisions. What we are concerned with here is that we were locally competent and not, perhaps, the Special Court at Bayreuth.
THE PRESIDENT: Yes.
BY DR. KOESSL:
Q Witness, how did you try and deal with the fact that suddenly one of the defendants denied that confession?
A I believe I have already told you that.
Q And why did you think she denied?
A That denial can be explained simply for the reason that only at that moment she became conscious how serious her situation was an that the consequences threatened her life and she then probably acted by the law which dominates all creatures in such situations unless they are people of special heroism.
Q Was there any other evidence?
A I have already pointed out that the letter which one of the defendants had thrown away had been found.
Q Did you have any files?
A That question was doubted in some context or other but a mistake had occurred there. We were concerned with the original files and the police, as I assume, had sent those away to the RSHA but copies of those files or, to be more correct, the second original versions, were sent to the prosecution, and apparently in connection with that fact, this case was set going from the higher levels. That is to say, the court and everybody who had anything to do with the case had complete access to all the files.
Q Did one of the defense counsels apply for suspension or make a motion for evidence?
A Such an application by the defense or by the prosecutor I do not recollect at all.
Q In Exhibit 232 Attorney Kern says that at the trial he made a motion to examine those persons as witnesses who had made remarks about the event to the police official. That motion had been rejected. Do you know about that?
A In this case it would have been a motion for evidence at the trial itself as compared with a motion for evidence such as I described this morning, when a motion was made outside the trial.
Concerning a motion for evidence at the trial, it was not I but the court which decided. It is possible that Attorney Kern made that motion, but I assume that that motion was rejected for certain and, according to the law, it had to be rejected if the contents were such as Attorney Kern described them here, for in that case not a motion for evidence would have been made, but a motion to investigate evidence -Beweisermittlungsantrag -- for the motion did not aim at questioning a witness about certain facts of which he knew, but it was a request to investigate by examination of witnesses whether these witnesses might perhaps know something about the facts.
Such motions for investigating evidence, under the penal code of procedure, were inadmissible and had to be rejected. In my view nothing could have been gained in that respect. The confession by the defendants before the police, the maintenance of the confession by one of the defendants and the letter excluded all evidence in that direction towards which Kern, by his motion, wanted to work.
THE PRESIDENT: A question, please. Do you recollect whether the indictment or the opinion of the court referred to the law against Poles and Jews in that case at all?
THE WITNESS: Your Honor, I don't remember that for myself, but the date of the death sentence should show whether, at the time when that judgment was passed, the law against Jews and Poles was already in force.
If I may add this: The question is not of particular importance because even -- and that was the local point of the law against Poles and Jews -- because not only the law against Poles and Jews had to be applied but, as it says there, also the German Penal Code and for such cases one had to apply in particular Article 3 of the Law against Public Enemies and that article made the death sentence mandatory.
THE PRESIDENT: I was not asking your opinion as to the importance of the law against Poles and Jews, but only as to whether it was employed if it was in effect at that time. I gather that you do not know the date and cannot answer the question. Go ahead.
BY DR. KOESSL:
Q The Witness Markl said under cross examination on the 27 of May - English transcript Page 3654 - the following, that the facts had been investigated very thoroughly. The problem of the proceedings had been whether credence could be given to the confession of the one Polish woman even to the extent of thereby incriminating the other Polish woman who denied. At the suggestion of Public Prosecutor Bens to examine the truthfulness of the confession of one defendant, the police official who had carried out the interrogations had been interrogated.
Q Is that account of Markl identical with your memory?
A Yes.
Q Did the defense have access to the judgment?
A Naturally. They could simply ask for a copy of the Judgment and; as regards the findings of the court; the conclusions; the legal maxim which had been applied; the reasons which were given to the extent of the sentence; they could examine all that in all its details.
Q Did one of the defense counsels apply for reopening of trial?
A The reopening was not applied for. I would know that; certainly I would.
Q Could the defense counsel visit the defendants after the trial?
AAt any time.
Q Did one of the defense counsels suggest that a nullity plea be made?
A No; that was not done either. At any rate; I never heard of it.
Q We are now coming to the sphere of your work at the trial, to your methods of conducting trials. Would you give me the name of your assistants; their positions and the time when they entered and when they left your field of work?
A My first two associate judges and whose appointment had been made before I assumed office, were Seiffert and Bergler; counsellors of district court. Both left the special court before the outbreak of war. Seiffert was transferred to Eger and became director of the district court. Bergler became counsellor of the district court of appeals at Nurnberg. Before the outbreak of war there was Grundler; another Landgerichtsrat; director of a district court and a counsellor of a district court Hermann. At the beginning of war they were called up.
Ostermeier and Engert too joined the special court before the outbreak of war and I believe they left in 1940 or 1941. Ostermeier became senior judge of a local court (Oberamtsrichter) and department chief at the district court Nurnberg. Engert became senior public prosecutor with the General Public Prosecutor at Nurnberg. Oeschey too joined us shortly before the war. Later he was promoted director of the district court but he remained with the special court and he was made my deputy. Because of his employment with the Gau leadership he spent only half his time on his work with me.
Ferber, I believe, joined us in the first year of war. I think it must have been in the course of 1940 that he came to me as an associate judge. He was the pole of rest around me among all the moving stars. He was promoted director of a district court and, until I left; he stayed. At my suggestion he was promoted my successor at the special court.
THE PRESIDENT: We will recess until fifteen minutes from now.
(A recess was taken.)
Court No. III, Case No. 3.
THE MARSHAL: The Tribunal is again in session.
BY DR. KOESSL:
Q Before the recess, you were talking about your successor.
A It was approximately in the summer of 1940 when Heinz Hofmann became district court counsellor, associate judge with the special court, and he remained in that position until I left. Another associate judge was District Court Counsellor Pfaft. He joined, I think, in 1941. In the autumn of 1941, local Court Counsellor Groben arrived at the special court. Later on, he became Councillor. In the summer of 1942, the District Court Counsellor Gross was transferred from Amberg to the special court at Nurnberg. For a few weeks, District Court Counsellor Vollmer was also an associate judge of the special court while I was presiding judge. District Court Counsellor Rauh also worked with me only as a deputy, but he only came in from case to case. During the war, for some time, we also had a District Court Counsellor Dr. Meyer but, after a few months, at his own request, he was sent elsewhere.
Those were the judges who worked with me.
Q Were those judges Party members?
AAfter 1938, I think all of them were Party members. Before that, only a few we re Party members.
Q Who belonged to a formation?
A Groben was a member of the SA for many years, and Meyer was a member of the SS. Meyer held the rank of an SS-Hauptsturmfuehrer.
Q Who worked for the Party when he was transferred to the special court?
A None of these men worked for the Party as such before they came to the special court. Only later, Ferber assumed an unimportant office with the Facial Political Office with the Gau Leadership of Franconia. I was to nominate a man for the work and I asked Ferber and he said: "Yes, he would do it." How much work he did there I don't know. I didn't concern myself with that.
Court No. III, Case No. 3.
Oeschey too, only a long time after he had joined the special court, began to work for the Gau Leadership.
In other words, the judges for the special court were not appointed on account of the political work they were doing.
Q That means to say that Groben and Dr. Meyer were the only active National Socialists at the special court when you went there?
AAs far as one can call membership in a formation active political work. In any case, Meyer was very enthusiatic.
Q When Groben joined, did you know that he belonged to the SA?
A No.
Q Did you know that Meyer belonged to the SS when he joined you?
A Yes, I knew that.
Q How was it that Meyer came to join you?
A Meyer had before been in Scheinfeld in Lower Franconia. He had worked at a small local court there. According to the way he described it, the population, for political reasons, was always offering opposition. The details as to what happened there did not interest me sufficiently to recollect them today. SS Obergruppenfuehrer Schmausser went to see Doebig on his behalf to have him transferred to Nurnberg. Then I was asked whether I would have him. He was anxious to please Schmausser. I had no objections because I was needing staff at the time.
Q To what extent did the political attitude of the people at the special court play any part?
A I can say with absolute certainty, and I can base myself on my statements on conditions as they were, such as I have described them here, that it was a matter of course that nobody was employed at the special court unless he had a positive attitude to the National Socialist state. By positive attitude to the National Socialist state Court No. III, Case No, 3.I understand, and I understand now, in the case of a judge that he is willing to apply the laws of the state according to the will of those laws.
That was all that was demanded of the judge. No definite political activity was demanded of the judges. Such demands I, in my sphere of work, could not have made. In this context, the following is of importance. The focal point with me before the war lay not only at the special court, but at the court of assizes, and there I needed people who, in particular as regards their professional qualifications, were able; people who could think logically; people who possessed special knowledge of the law; and people who were able to stand the strain of a great deal of work. That was the primary point of view which I had to consider and, as we all know, there aren't many people of that kind. Therefore, I could not apply particularly high standards from the political point of view, nor was that necessary. Everybody did his duty in accordance with his oath.
Q That man Meyer whom you mentioned held the highest rank in the Party among your associates?
A That is correct. He was an SS officer.
Q How was it that you parted ways?
A He didn't come to me because I held him in high esteem politically or otherwise. He came to me for other reasons. Soon after he had started work with me, I found out that his work was very poor. He used big words, but his thinking power wasn't very great. For quite a while I tried to help him to get on, but apparently, that was not in accordance with hid ideas and he made efforts of his own to get away and I had no objections.
Q Did he attract notice because of his character too?
A That question plays a certain part in connection with a report which is alleged to have been made and which was mentioned by somebody or other.
THE PRESIDENT: I don't recollect the name of Meyer as a witness against the defendant. Was he a witness against the defendant?
Court No. III, Case No. 3.
DR. KOESSL: Meyer was not a witness, but he has been mentioned several times. Among others, the witness Ferber mentioned him and said of him.....
THE PRESIDENT: (Interrupting) Because another witness mentioned him doesn't make any difference to us. We're pot concerned with his character.
DR. KOESSL: This question is important, Your Honor, in connection with the question as to whether Ferber's statement is correct when he said that Rothaug, so to speak, only for reasons of competition sent Meyer away from the special court because Meyer had a good position in the Party, and that is why I would like the witness to answer one question.
THE PRESIDENT: I think the witness answered it anyhow. He says he let him go because he wanted to go and he wasn't very competent. That's the answer, isn't it?
BY DR. KOESSL:
Q Witness, a SD report was made. What was that SD report about, which Meyer wrote and which Ferber mentioned?
Court No. III, Case No. 3.
A In general, we have been concerned there with the question as to whether the charge was justified that we quite intentionally employed people at the special court who were politically active. Meyer was the man who occupied the highest rank and at the first opportunity I got rid of him. In that connection, however, a report played a part. That was a report which he wrote a few weeks after he had started work with me and the report was about me and my associates and he sent it to an SD agency. In that report we were more or less charged with not being quite such good National Socialists as he, Herr Mayer.
Q Ferber maintains, English transcript, page 1588, that he had been described by the report as a practicing Roman Catholic. Is that correct?
A I can exclude that with absolute certainty. That question as to whether he was a practicing Roman Catholic, that played a part for entirely different reasons. It played a part in connection with Ferber's promotion to district court director. There, by some agency or other, a report had been received that, on account of religious ties, his political ideas were suspicious. As I myself was in favor of Ferber's promotion and as I worked for it myself, I helped to work against those rumors that had been circulated against Ferber. I told Ferber about it and I succeeded in seeing to it that that report was not used against him. In the SD report by Meyer, the political reliability, etc. of my people was only attacked in a general way.
Q What was your attitude concerning that charge and what did you do about it?
A I personally didn't mind at all as to people's religious beliefs. I did not concern myself at all with the religious attitude of the individuals and I cannot say which of my people belonged to one denomination and which to the other. And that was not the question that was at stake, the question was whether a person believed that his religious attitude made it necessary for him to attack the National Court No. III, Case No. 3.Socialism state.
But the question never could have been as to whether a private individual goes to church and attends the services of his denomination, I can recollect too, in the Ferber affair, that I submitted a report to the Gau Administrator (Gauwalter) - that was Oeschey at the time - and I suggested to him that he was to settle this matter on all accounts and that he was to settle it our way. He did that and, in effect, Ferber was promoted.
Q Did any other promotions in your sphere occur on account of your suggestions? Ferber, Oeschey, Ostermeier, Engert?
A In 1942 alone, we had to deal with very nearly one thousand cases at the special court with a very small staff. That meant that I personally, and every single one of my associates, had to work by day and night, on Saturdays and Sundays. That meant a very great strain, and when a member of my staff was under strain that meant twice as much as the strain that might have been on a judge at a civil chamber. For that reason, I did whatever I possibly could for my staff.
Q Did the people know that?
A Each one of them knew that, for I was particular pleased when I could keep every one of them informed as to the development of their own affairs and that is why today they have the views they do have.
Q And what were the consequences?
A Naturally, there was trouble. Rumours began to circulate. There was distrust and envy such as does happen among people. I think that happens all over the world. But I put up with that because I was interested in helping my people.
Q Did you have people whom you preferred, your favorites did you have them promoted?
A Well, they were all promoted by preferential treatment; they were no better off than people who were eight to ten years older than they. What I wanted to achieve was to give them some reward for the terrible strain they had to bear.
Q And what did you do after that Meyer report?
Court No. III, Case No. 3.
A When I heard of that report to the SD agency, I immediately told Ferber about it and asked him to draw the attention of my own people to the fact that they were to be very careful what they said in front of Meyer. For we certainly didn't shout "Heil, Hitler" all day long from morning to night, but we had our moments of criticism and we did talk about things critically without that meaning that we were hostile to the state, but these remarks of ours could easily have been misinterpreted. Therefore, I thought it advisable to warn these people and tell them to be cautious. I wanted to avoid a big affair occurring one fine day.
Q Were your assistants definitely assigned to employment with you, or how did that happen?
A Naturally, nobody could just come along and start work with me. An official assignment from the superior officer was needed, and it is obvious that nobody was employed at my special court without my having been consulted first as to whether I was in agreement with such an appointment; and what happened was that, as a rule, I first had a talk with the man to find out whether he wanted to work with me. All knew about our work. They knew the laws with which we had to operate and they also knew the policy of the special court at Nurnberg. If people agreed and said that they were willing, and if they satisfied the requirements from the professional point of view, I passed their names on to the president of the district court of appeal and he then ordered that they were to be assigned to my court.
Q Was that the same with all your associate judges?
A It wasn't like that with all my associate judges. In the case of two, matters were different. Ferber expressly asked me before he was transferred to the district court, that I see the president of the district court and the president of the district court of appeals and ask that he should be employed with me. For that purpose, the position of one district court counsellor was transferred from outside to Nurnberg. The reason for that was that I needed more staff, and Ferber Court No. III, Case No. 3.was appointed to that position.