However, under Article 4, in the case of less serious offenses, if war--tine conditions had been exploited, the same would be the case.
Court No. III, Case No. 3.
Here under Article IV of the law against public enemies, the legislature had in mind the wish to create a ruling by stipulating that the increased scope of penalty was only to apply if the sound instincts of the people on account of the fact that the offense was particularly object, demanded a higher penalty. Here it becomes clear that by involving the sound instincts of the people, a limitation of the application of the law had been created. The bulk of the lighter offenses and the offenses of medium gravity were to be accepted. Difficulties could only arise in border cases. Crimes from the very outset did not come under that legal advantage of the legal limitation.
If one remembers that Article II, by its nature, was a special provision of Article IV, then it becomes obvious that Article II--that those two articles have to be used to supplement each other. That is to say, the increased penalty scope only is to be used if the sound instincts of the people, because the offense is particularly object, demands the higher penalty. In Article IV too, the death sentence is made dependent on the offense having been a particularly serious one. Whereas the concept of the sound instincts of the people of the elimination of light cases also serves the sorting out of the so-called border cases--whereas as that article serves all those three purposes, and in effect it is only of importance in those cases, the concept of the particularly serious offenses, even according to official instructions which followed up the jurisdiction of the Supreme Reich Court as a genuine fact, is outside the discretion of the judge and comes from life as such. The existence of such a criterion distinguishes the particularly serious case from the other facts of the case and makes it a fact on its own for which the death sentence is mandatory.
Articles II and IV of the Law against Public Enemies, therefore, are concerned with two facts: for one, there is the penitentiary sentence; and for the other, there is the death sentence. The facts where the death sentence applies are different from the facts for which the penitentiary sentence is to be applied, because with the first, as a Court No. III, Case No. 3.further and decisive criterion, there is added the concept of it being a particularly serious offense.
The element in the law of the socalled healthy instincts of the people, which concept had so often been attacked, has a weakening effect on the law and does not play a practical part if a serious crime has actually been committed. In such a case, the solution of all other problems is a question of the logics of the law. For the assumption of a particularly serious offense, one does not think of a crime which is particularly serious of its own type; that is to say, robbery is enough. It is not necessary that a particularly serious case of robbery has occurred.
Q Just a moment. That decision by the Supreme Court, I have presented as Exhibit No. 10.
A Now may I revert to the question which introduced this discussion, and I would like to say this: It would be quite a useless undertaking to try and explain to the other world--that is to say, the presentday -- a world which has gone down with ourselves for in the Katzenberger case the focal point of the sub-evaluation which is given to it today, lies not in the wartime conditions, but it arises from the fact that it was a case of racial defilement. It is impossible even to try and make people understand that we should have had that feeling in the criminality of that event in a world which had entered on the wrong moral path.
What took effect here was the fact which here has once been described as the tragical situation of the European Continental judge, which lies in the limitation of his office. The fact that he was subject to the law prohibited to him an examination of penal laws as to their moral or ethical value.
THE PRESIDENT: We have listened to a long dissertation on that subject both from this witness, from Dr. Jahrreiss, and from some others. You are wasting your time with a lot of philosophical conversation here which is not aiding your case and is consuming our time. This Tribunal has construed laws before this for very many years. We are Court No. III, Case No. 3.able to understand something of the nature of judicial discretion and to know that that discretion is not a free discretion either here or anywhere else, and we also know that the human appraisement of facts cannot be wholly separated from the estimate as to the law in a particular case, especially when the question is as to whether the facts are very severe or a very serious offense.
If that is to be laid down in this Tribunal here by this witness as being a pure question of law, there will be some difficulties in convincing us of that fact.
Now let's get down to the facts of this case and discuss them. Let us know what was done.
BY DR. KOESSL:
Q Witness, I am going to skip quite a number of question, but there is just one question about which I would like to ask you briefly because the "Stuermer" has been presented here. What was the importance of the "Stuermer" and its propaganda?
THE PRESIDENT: That matter has been covered sufficiently. This defendant hasn't been connected with the "Stuermer".
BY DR. KOESSL:
Q When did you have your first contact with the Katzenberger case? I have skipped seven pages.
A The first time I came into contact with that case was in connection with the decision about the appeal against the warrant for arrest; to put it better, shortly before I must have received some information or other about the case.
Q Is the statement by the witness Ferber correct to the effect that it happened at the end of July 1941?
AAccording to my recollection, that statement is correct.
Q And how was the case brought before you?
A I assume that the question that you mean to ask me is how it was that I first came to hear about the matter. Well, I must point out that as far as the existence of the Katzenberger case is concerned, Court No. III, Case No. 3.I knew nothing about it to begin with.
After an indictment had been filed with the Penal Chamber, something else happened--something I could not ignore, and something about which I had not been told.
There were two possible ways for me to hear about such matters. One way was that after the prosecution had passed on the indictment to the higher authorities - it was obliged to do so -- that in that connection the public prosecutor received instructions from the higher authorities to the effect that he was to decide whether the case might not have to be judged according to the provision of the law against public enemies. The second way was -- and theoretically it is more likely that that was how it happened, and from the practical point of view also it is most likely that it happened that way - that the judge who dealt with the case on receiving the indictment, following the custom in Nurnberg - and that was the custom elsewhere too approached me with the question whether the Special Court was not competent in this case.
That second possibility, that is to say, the most likely possibility, did not only exist, but that is actually the way by which I did hear of the matter. I remember that for certain. That was obvious insofar as - and that was natural - the judge as it says in the law, in every phase of the trial, has to examine his own competency. The presiding judge of the Penal Chamber, after he had received the indictment, therefore had to examine the question whether he was competent. He did examine that question and he came to see me and brought the files with him. He said that that was quite obviously a case to be dealt with from the point of view of the public enemy law, for after all the husband had been called up. I emphasize that that was not an extraordinary event; I have stated here before that it was the general custom - a custom which was followed by other courts as well that in the case of files where one believed that I was competent, these files were sent to me quite informally to give me an opportunity to examine that question.
I perused those files and I arrived at the conclusion that in consideration of the fact that the husband of the Seiler woman had been called up, Article IV of the law against public enemies was probably applicable.
But I had considerable misgivings as to whether the case could be clarified sufficiently to support the indictment. That explains that after I had dealt with the case, investigations were instituted which went on for many months. When I had arrived at the conclusion that the suspicions, such as they were, spoke in favor of applying the law against public enemies, I returned the files to the President of the Penal Chamber, and I am sure I informed him of my opinion, because I always used to do that. I had to return those files, for in case the prosecution were to concur with my opinion, the indictment would have to be withdrawn from the penal chamber and that was admissible under the law.
I am sure that, because that was the custom with me, in connection with the trial, I contacted the Senior Public Prosecutor, who, I assume, for his part, reexamined the matter, and was inclined to share my point of view or even concurred with it. That the Senior Public Prosecutor, or the expert with the prosecution, Markl - that the suggestion didn't come from them is evident merely from the fact that they had submitted the indictment to the Penal Chamber, and there is no reason which might have caused them to change basically the opinion they had held before.
Q. Witness, that informal contact which you had with the president of the Penal Chamber - or to put it more correctly - the contact which the President of the Penal Chamber made with you, did you enter that in the files?
A That wasn't done either in this case or in any other case. That wasn't the custom. That was an informal contact. If it wasn't done by word of mouth, it was done by notes, and those notes were made on a piece of paper which could be removed at any time. That was the custom in all such cases.
Q Ferber described that withdrawal of the indictment as follows:
"Before I had time to arrive at a decision at the Fourth Penal Chamber in the Katzenberger case, on the very same day Public Prosecutor Markl withdrew the indictment from my Penal Chamber. In reply to my question as to why he had done so, Markl told me he had not withdrawn that indictment at the instruction of the Ministry of Justice, but that Rothaug had requested him to do so because Rothaug was planning to make a special case of the Katzenberger case and to apply the law against public enemies. Rothaug then rejected Katzenberger's appeal against his arrest. I heard about that through a pass which I had handed over to the defense counsel Herz and which he returned to me."
That is Ferber's description. What are your comments?
A What happened between Ferber and Markl six years ago, when I didn't witness nor did I hear anything about it, but it is altogether possible that Ferber even in those days put aside his own initiative in the matter, for there might have been a reason for not showing Markl..... But the question is whether that description of the situation is in accordance with the truth. At any rate, what happened, as far as I am concerned, is what I described here.
Q: You mentioned that it was customary for developments to go the way which you have described here. Do you know of any other cases where the same thing happened?
A: At the moment I can't think of another case. Anyway, I can't think of the exact file notes but that was the general custom.
Q: What did you do when, in that informal way which you have described, a penal chamber sent you files asking whether you considered yourself competent in this case?
A: If such files were sent to me in my capacity as presiding judge of the penal chamber and if I considered myself competent, I kept the files right away; but that was not possible in special court cases because first the indictment had to be withdrawn and had to be refilled before the special court.
Q: What was Ferber's attitude in such or similar cases? Can you give us a description of a concrete case or can you give us details of such a case so as to elucidate Ferber's attitude to such questions?
A: Ferber was very accurate in his work. He was always chasing up things and his work was exemplary. I remember one case where the prosecution first of all filed the indictment with the judge of the local court. I believe they applied for ordering a penalty concerning a prison sentence. Two people, shortly before the harvest, had destroyed a large field of hops. One intended to pass a relatively short prison sentence. Ferber accidentally heard of the case and he saw to it that the order for penalty was withdrawn by the local court and the indictment was filed with us. His evaluation of the facts was correct.
Q: How did the Katzenberger case continue?
A: As I have already pointed out, I informed the senior public prosecutor about my views.
Then a decision was made to withdraw the indictment from the fourth penal chamber and to bring the case before the special court by agreeing that it was a case for its competency and that was done by presenting to us the appeal against arrest for our decision.
Q: Did you decide about the appeal against the arrest?
A: Ferber says, "Rothaug rejected the appeal." That is not correct in so far as I had no legal competency to do so. The special court by decision, had to reject the appeal against arrest, and I base myself on the possibility that here Ferber too took part in making a decision about that appeal as he knew about events it was likely that I asked him to participate in making that decision.
Q: On what assumption did the special court go?
A: It went on the assumption that suspicions were such that Article 4 of the law against public enemies would probably apply. The appeal against arrest was rejected because the same had been done in all other cases and it was pointed out that this appeal was rejected because there was a suspicion that Article 4 of the law against public enemies might apply.
Q: Did the prosecution immediately refile the indictment with the penal chamber?
A: The indictment was filed with the penal chamber and that proves that at that time anyhow the prosecution considered that the case had beached the phase where it should be indicted; and that probably they would now immediately also file the indictment with me. But in fact that is not what happened. And evidently the reason why it wasn't done is that I had voiced misgivings to the effect that the facts of the ease had not yet been clarified sufficiently to support the indictment and, as I used to do in such cases, I am sure I must have suggested the direction in which I considered further clarification of the facts necessary Perhaps when returning the files to the prosecution I, as I did frequently, even laid down my opinion in writing in the files with the aim of, when the case would come up for trial, from the very beginning having a proper basis for the judgment.
Q: And that is to say at that moment you did not yet consider that the time had come for an indictment in the Katzenberger matter?
A: Surely not, for otherwise that indictment would have been filed immediately.
Q: Groben says that as an investigating magistrate he had received a notification from which he could tell that the case had been indicted with tie special court and thereby his work as an investigating magistrate had come to an end. Does Groben give a correct account here of what really happened ?
A: That statement by Groben at a first glance seems to indicate that an indictment was immediately filed. The legal situation is as follows: Groben was the investigating magistrate. As such he had issued the warrant for arrest and he exercised the so-called control of arrest until the court, which tried the case after the indictment had been filed, issued an order for the arrest.
The way these things are handled in practice is this: When the indictment has filed and the presiding judge has set a date, simultaneously he makes a decision about the arrest. For example, he may order that the defendant is to remain in detention where he has been pending his trial. By that order concerning the arrest and where it is to be spent after the indictment has been filed, the presiding judge of the court assumes control over the arrest. The investigating judge is notified accordingly.
But Groben, in October, 1941, left his post as investigating magistrate and joined me. The indictment before the special court was filed only in March, 1942, so that Groben can never have been notified about that matter. He is wrong there.
Q: Did the Seiler case play a part at that time?
A: The Seiler case did not yet play a part at that time as a penal proceedings, but the offense with which she was charged later had already become recognizable at the time, and I am referring to the matter of the perjury. I know that that was already under discussion at the time; and suspicion was based, first of all, exclusively on the transcript which Groben had taken down when he had interrogated Seiler under oath.
In that transcript the Seiler woman had admitted that repeatedly delicate situations had occurred. On the other hand, under oath she had disputed the fact that she had the situations to be of a sexual nature. In answer to repeated questions she denied that. It was on that point that suspicion was based in the perjury case later on.
Q: Did you consider it advisable at that time to have Frau Seller arrested?
A: Because at that time I did not yet consider the situation as a whole sufficiently clarified to come to a clear decision, I advised against taking any steps against the Seiler woman for the moment.
THE PRESIDENT: We will recess for fifteen minutes.
(A recess was taken).
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: You may proceeds.
BY DR. KOESSL:
Q. You have stated that at that time you considered that it was not the time as yet to arrest Frau Seiler. Would you please state why at that time you considered that arrest of Frau Seiler not yet appropriate?
A. I have already answered that Question.
Q. In connection with the complaint against the arrest in the Katzenberger case, did any difficulties arise in your chamber?
A. Not in the least.
Q. Ferber says the following about that matter. When during those days a discussion was held with Rothaug for the first time about the Katzberger case, I immediately expressed my misgivings because of the use of the law against public enemies. At that time in legal literature, there was a great fight as to whether the behavior improper for the wife of a combat soldier should be treated as a crime under the public enemy law. This was denied. I pointed out that in my opinion the Seiler case should Dirst be decided by the competent penal chamber. Rothaug immediately with all his ability proclaimed this deed with the Katzenberger case and combined it with the sound sentiment of the people and he said that this was a crime against the public enemy law because of the relationship of a German with a front-soldier's wife. He said it was obvious that the attitude of the Ministry would not interest him. The entire impression that was made by Rothaug was the following. Rothaug aimed at having the Katzenberger case compared with the basic special treatment of Jews or Poles, or Polish Jews who in anyway had sexual intercourse with Germans. The sector of the Administration of Justice (Sector Justiz), that is a phrase which Rothaug liked, had a task here which was political. In these connections Rothaug also caused the execution of a perjury proceedings against Seiler as a special court case, and issued a warrant of arrest against Seiler. Now, what do you have to say to this description by Ferber?
A. I can only say about that whole affair that it was dealt with by me in absolute calmness at the special court, and that of all these points of view which Ferber produces here, even at that time, there was no question about that. Regardless of the fact that from the legal point of view they would have been entirely erroneous. When the complaint against the arrest was rejected, I and the two judges who were also trying the case together with he were quite certain that according to the situation under law and the facts of the case that it was an action which was not subject to any doubt; and neither the participating judges nor Ferber voiced any misgivings of any kind against this manner of handling the case.
Q. Did all this happen toward the end of July?
A. These are the events which occurred toward the end of July. The beginning of the criminal proceedings against Seiler at the time were not yet important at all except for the fact that it was being considered, and apparently only after further investigations had been carried on did the prosecution, which after all was competent for this, institute the investigation proceedings against her, and Seiler was only arrested in December 1941.
Q. Did you have anything to do with the case first?
A. Toward the end of July 1941, I had finished the matter, that is, I decided on the complaint against the arrest. The files were returned to the prosecution, and there they were being worked on. I had nothing further to do with the case then for months. Then since there was such a great amount of work which I had at that time, I believe I did not give this case another thought.
Q. Did you not have the control over the arrest?
A. I have already stated that the control over the issuance of the warrant of arrest of Katzenberger could be transferred to us only after the indictment was filed and after the first subsequent order regarding the arrest.
Before the indictment was filed, the control over the arrest remained as before with the investigating judge. The investigating judge could in particular in spite of the rejection of the complaint against the arrest appeal at any time without any application and withdraw the warrant of arrest, and he was obligated to do so if he should gain the conviction that the warrant of arrest was injust.
Q. What points were discussed at that time and with whom?
A. At that time there was only one discussion and that concerned the delay in the submission of the plea against the arrest of Katzenberger in the sphere of the court. It took weeks until the complaint against the arrest reached me. In that connection, the reasons were examined also how this delay could occur since according to the law the files with the plea against the arrest directly and immediately had to be submitted to the court; thus they could not be sent to the prosecution. Since this however happened in spite of this provision, and the prosecution apparently wanted to finish the indictment, weeks passed so that the time limit which usually was three days was not kept; and for that reason it was also discussed at that time whether the order which Groben had completed and which ordered that the files be forwarded to the prosecution which was not competent should not be put into the interoffice files.
Q. In his affidavit Groben describes this as follows: How dangerous it was to take the part of a Jew openly as I did it can be seen from the fact that before the files in the Katzenberger case were sent to Berlin for the purpose of deciding the clemency question, it was believed that it should be suggested to me that I should remove my intended position to have Katzenberger released from custody so that no unpleasant consequences would arise for me from Berlin from this; However, I refused to do so.
A. It is out of the question that this discussion took place in connection with the clemency plea, rather on the contrary I remember this case very well; and at that time I myself advised that this wrong document should be put into the intra-office files of the prosecution; however, I did state that first of all Groben should be asked whether he agreed to this. That this occurred around July 1941, that this occurred in the way which I stated can be seen without any doubt from the fact that I myself had Groben informed about this through a comrade, and there would have been no cause for me to do so if this affair had occurred in connection with the submission of the clemency plea, for at that time when the clemency plea was filed, Groben was already working in my own field so that there would have been no cause to discuss this matter with him through third persons. In this whole affair we were concerned with the friendly affair in which no person had any thoughts of forming any political considerations or ideas. What we were thinking of was merely to spare Groben any official difficulties. These could have arisen because the plea against the arrest was submitted too late. On the other hand, the Jewish problem or his own attitude on the Jewish problem played not the slightest role at that time for us.
Q. Did you discuss this matter yourself with Groben?
A. I was only told that Groben did not agree to this manner of handling the case, and with that the whole affair was closed for me. I don't believe that I considered it so important that I discussed it again with Groben.
Q. When and in what connection did you meet Groben?
A. Only after these events did I meet Groben. He came to see me and asked to be employed at the Special Court of Nurnberg because he preferred the activity of a so-called trial judge (Spruchrichter) to the activity of an investigating judge. He also felt that he would be well-suited to my field because as investigating-judge he had dealt with facts which were important in our court for many years.
Q. But you also spoke about a second point which was discussed at that time. What was that?
A. The second point concerned the question of taking the testimony of the witness Seiler under oath. At that time, I considered the taking of testimony of the witness under oath to be absolutely wrong. I also considered it legally not admissible. A third point of view was the human point of view, even though Groben, according to the entire facts at the time should have realized that this woman was in an extremely critical situation, for one thing, because of the nature of the charge which was raised against her, and in addition, one had to take into consideration that she was a married woman. My opinion was that Groben in particular after he had read the transcript of the record, he must have realized that the affair was extremely suspicious, should under all the circumstances have refrained from taking her testimony under oath for humane reasons. I also told him that at that time by telling him that they had actually pushed this woman into perjury, and that I was of the opinion that this taking of testimony under oath of this woman should not have taken place. Groben tried to justify this situation by saving that the prosecution should not have asked for the administering of the oath; but I explained to him at that time that this application by the prosecution was not binding for him. There was no such binding force. He could have interrogated this woman without administering the oath. According to the German code of legal procedure, it has to be taken into consideration, moreover, that taking the witness' testimony under oath outside of the session of the trial is on principal disapproved by the law, and that only in the most exceptional cases such an administering of an oath to a witness outside of the trial is considered admissible. Such a situation exists, for example, when the prosecutor can decide the question as to whether an indictment should be filed or not by deciding whether a witness, man or woman, swears an oath in regard to a definite factual situation; but in this case we were concerned, not only with this point, but what one could assume here was aimed to a large extent at other elements which played a role at that time to the entire relationship in the sessions, and a great many other factors could exert an influence.
For all these reasons, in my opinion, the administering of the oath to this witness would at that time have been avoidable.
JUDGE HARDING: The witness, not under oath, would be prosecuted for giving false testimony under the German law?
A. The witness who gives false testimony can be prosecuted under the point of view of perjury of violating the oath.
JUDGE HARDING: Provided that they haven't taken am oath?
A. Then he cannot be prosecuted.
BY DR. KOESSL:
Q. The discussion about this oath administered to Seiler was thus already taking place at a time when Groben was applying for employment with at the Special Court?
A. Yes. Here, too, it was a purely friendly matter between an older and a younger man, and this affair had absolutely no political background at all. At that time we were not thinking of such a thing in that connection at all. This can be seen already from the fact that this matter occurred in a connection where Groben simultaneously was making efforts to be employed in my field. If therefore at that time I would have tied up my political considerations with these discussions, it would not have occurred to me to even consider Groben's employment at the Special Court. And in the same way, Groben would haven't thought of applying for such employment himself at a court of which he alleges to have had such a negative opinion as he describes it today. All these discussions were free of any political idea.
THE PRESIDENT: How many times do you have to tell us that in order to make the record clear that that is your position? You have repeated yourself many times. Now, pass on to something else.
DR. KOESSL: May it please the Tribunal, we want to discuss still what course this incident with Groben took.
THE PRESIDENT: Go ahead. Ask your next question.
DR. KOESSL: Yes, Your Honor.
Q Did Groben even come repeatedly to you to be employed at the special court?
A He came to me repeatedly on account of that.
Q What reasons did he give for his request?
A I have already explained that. He preferred to be a trial judge rather than an investigating judge.
Q Did you then go to see the director of the local court?
A Groben pointed out to me at the time that difficulties would probably arise on the part of his superior, the director of the local court of Nurnberg, and ha requested me to go to see the latter and I did so, and I succeeded in obtaining his agreement.
Q Who had to appoint the judges for the special court?
A That was already mentioned and discussed too.
Q We said that already. Why did you go to the director of the local court?
A I have just told you that.
0 Did Groben get a position at the special court then?
A Yes.
Q Thus, you did not advise Groben personally to remove his opinion from the file?
AAt that time that was quite a subsidiary matter and we were not thinking of anything but the personal interest of Groben.
Q Did you at that time have cause, any how, to look at the case from a political point of view?
A Not the least reason. Groben was a member of the SA and a party member; and from the fact that one could treat a matter differently than one did, one cannot draw any political conclusions after all.
Q In answer to the question what he should have done -- would have had to have done if he considered the warrant of arrest against Katzenberger, Groben gave evasive answers How should he have acted in view of his judgment of the legal situation?
A There is a legal situation here which is quite equivocally clear and cannot be interpreted in any other way. The man who had control over the warrant of arrest before the indictment was filed is the investigating judge. If he now reaches the conclusion that a warrant of arrest is unjustified, or becomes unjustified, or is unjustified from the outset, then, according to the clear regulations of Article 123 of the Code of Criminal Procedure, has the duty immediately through official channels to rescind the warrant of arrest.
Q Now, how do you explain his manner of handling the case?
A In fact, he did not annul the warrant of arrest, but if I recall his statements from the time when he was here in the courtroom, he said as follows: Unfortunately, I did not see all of the record; it was very long. After he had interrogated the witness Seiler, he had reached the conclusion that there was no grounds for the warrant of arrest. For that reason he had decided to give a hint to the defense counsel that he should make a plea against the arrest. This plea against the arrest was also made and he had then submitted to the prosecution an announcement that he intended to rescind the warrant of arrest.