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.
The following is not quite clear in this procedure. Did Groben on the basis of his own opinion of the legal situation, after the interrogation of the witness Seiler, reach the conclusion that the warrant of arrest was unjustified? Then, in this case, he would not have had to give a hint for the filing of an appeal against the arrest, but in accordance with the mandatory legal regulations had to rescind his warrant of arrest but that he did, so to say, provoke an appeal against the arrest can be explained only from his endeavor to avoid this decision which it was his duty to make, and to transfer the responsibility to the court that has to decide about the complaint. After the complaint against the arrest had been filed, the obligation again was his to examine whether he wanted to continue the warrant of arrest -- to maintain it. If he rescinded the warrant of arrest, then as it says in Article 306 of the Code of Criminal procedure, he has immediately to send the complaint against the arrest, together with the files, at the latest after three days to the court deciding about the complaint. But he did not undertake any stops in that direction; even at this time he did not rescind the warrant of arrest, but obviously wanted the prosecution to make a statement, and this statement could only be the application according to Article 126 of the Code of Criminal Procedure, the application of the prosecutor to rescind the warrant of arrest. This obligation is the only binding application in the Code of Criminal procedure, that is to say, in such a case the judge is not permitted to examine whether the application is justified or whether it is not, but he has to comply with it. The responsibility for rescinding a warrant of arrest, thus however, is transferred from the judge to the prosecutor.
Thus, this is my understanding of these events. Groben wanted to avoid a decision under his own responsibility.
THE PRESIDENT: You have already stated that. You have expended your view as to his motives at great length, and you need not repeat it.
Q And now as to the question of the administering of oath to Seiler, and the arrest of Katzenberger. How did Groben get possession of the files?
A The question was important already once before. This is how it was. The police -- through interrogation of the witnesses, the defendants, files are compiled. If these investigations are concluded, then these police files are forwarded to the prosecution and later to the courts. Here it was a so-called case of "being brought before the judge" (Vorfuehrungssache), that is to say, a man is arrested by the police and brought before a judge to decide the question of arrest. In order to afford the opportunity to the judge to examine that question, the police files are submitted to him and these police files thereafter become a part of the court files.
Q But what is the opinion of the judge in the trials based upon?
THE PRESIDENT: That question has been answered repeatedly.
DR. KOESSL: All right.
THE PRESIDENT: We are depending upon counsel. Counsel knows when a question has been asked before.
DR. KOESSL: Unfortunately I did not get the German translation.
THE PRESIDENT: I stated that you know when you have asked a question before, and when the answer has been given before. You must avoid this repetition.
DR. KOESSL: Yes, Your Honor.
Q From the Katzenberger opinion, can it be approximately determined what material Groben had at his disposal when he was for the release of Katzenberger and was confronted with the question of taking Seiler under oath?
A The lack of files itself is especially important here, but it is like this: In the essential points one can see from the written opinion approximately what documents the investigating judge had when he had the investigation about the warrant of arrest.
THY PRESIDENT: Next question.
Q On the basis of what regulations of the code of procedure did Groben act when issued the warrant of arrest?
A This is Article 125, Section 3, of the Code of Criminal Procedure.
Q What prerequisites have to exist for issuing a warrant of arrest?
A The most important thing is urgent suspicion of the offense.
Q And where is this?
A In Article 112.
10-1-M-GW-20 Aug 47-Sampson (Int-Wartenburg)
Q. I oder to issue a warrant of arrest, does the defendant have to agree to it?
THE PRESIDENT: You needn't -
A. Of course not.
THE PRESIDENT: Answer that question. The answer is stricken; the question is stricken.
Q. Reading excerpts no from Groben's advice-that a great deal was against him at the moment. I assure him that I am continuing to think of the case and shall release him of course immediately as soon as further investigations should show that his presentation of the facts were correct. Katzenberger understood this, and in order not to delay the proceeding unnecessarily did not file a complaint against the warrant of arrest. What do you have to say about that?
A. This instruction about the probable outcome of the warrant of arrest as absolutely out of place, and moreover, they were wrong because the complaints against the arrest were usually after approximately twenty-four hours decided. According to the regulations of the law, these proceedings had to be carried out with the utmost speed.
Q. The advice which Groben gave, was it correct and did it serve its purpose?
A. I have already stated my opinion on that just now.
Q. could the investigating judge in this stage of the proceedings develop its own initiative?
A. He could not only display his own initiative, but he had to display it according to Article 166 of the Code of Criminal Procedure. According to 10-2-M-GW-20 Aug 47- Sampson(Int-Wartenburg) this the investigating judge has the duty, in particular in cases of arrest, without the prosecutor making a corresponding application:
if possible immediately to examine all important evidence that he can obtain and to interrogate himself. The correct procedure in the case here at hand would have been if he in the Katzenberger case, and I am starting with his own idea of legal situation, would immediately have called the witness Seiler. Instead, it took months again until this step was taken.
Q. From the testimony of the witness Seiler in this trial, it is apparent that the warrant of arrest against Katzenberger was issued in March, 1941; that the investigation by the investigating judge Groben, on the other hand, took place only in July, 1941. In the interim, could a decision have been made about a complaint against the warrant of arrest against Katzenberger?
A. I would like to emphasize that I myself no longer recollect these temporal relationships. I can only say roughly that between the arrest of Katzenberger and the first interrogation of Seiler by the judge, months elapsed. In this interim of course dozens of complaints against arrest could have been decided, for one has to take into consideration that in our procedure an unlimited number of complaints against arrest, and pleas for rescinding the arrest, can be made. There is no legal force of a warrant of arrest; thus, it is like this. If a complaint is rejected today, then it can be renewed tomorrow; and the day 10 -3-M-GW-20 Aug 47-Sampson(Int - Wartenburg) after tomorrow the prisoner can make a plea to have the warrant of arrest rescinded.
Q. On what legal basis is the complaint based?
A. On Article 304 and the following articles of the Code of Procedure.
Q. What is the further course of the plea?
A. The plea is filed at that office whose decision is being contested; this office then has to make a decision, namely, whether it wants to maintain its own decision or rescind it. It can avail itself of that opportunity; if it does not avail itself of that opportunity, than the plea, as it says in the law has immediately, or at the latest, after three days, be submitted to the court of appeal and the court of appeal has to decide whether it affirms the decision of the lower court or not.
Q. Can the investigating judge in considering the question of rescinding of a warrant of arrest take into consideration that perhaps further incriminating material would be received or would be obtained?
A. Of course he cannot take that into consideration, but he has to decide the question whether a warrant of arrest is justified or not, that is in effect, whether there is a great deal of suspicion that the offense was committed and he has to judge according to the material which he has available. And if this material is not sufficient, then the warrant of arrest has to be rescinded. This is the meaning of the law.
Q. What happened between the arrest of Katzenberger in March, 1941, and the interrogation of Seiler in July, 1941?
A. I am not in a position to judge that, and also I cannot recall it at any rate-
10-4-M-GW-20 Aug 47-Sampson(Int-Wartenburg)
THE PRESIDENT: You don't know tho answer. Ask another question. He doesn't know the answer.
Q. What was the position of the investigating judge and the prosecutor in regard to the warrant of arrest?
A. The man who is in control of the arrest proceeding is absolutely independent of the prosecutor, and he is the investigating judge. The man who is in control of the investigating proceeding is independent of the investigating judge, he is the prosecutor. This legal situation changes only after the indictment has been filed at tho court where the case is to be tried. For that reason, the investigating judge can rescind the warrant of arrest at any time through official channels. On the other hand, the prosecutor too, who is a master of the investigating proceedings, and in that capacity has to examine the question as to whether a proceeding will possibly be carried on or not, has the right at any time to ask for the rescinding of the warrant of arrest, and application which the investigating judge, as I have already explained, has to comply with.
Q. On which regulation of the code of legal procedure is the duty of the investigating judge based immediately to rescind the warrant of arrest and through official channels without an application by the prosecutor if he is of the conviction that there is no longer any reason for the arrest.
A. I have already answered that question.
Q. Did the investigating judge Groben act in accordance with that regulation after he had finally interrogated this Seiler?
10-5-M-GW-20 Aug 47-Sampson(Int-Wartenburg)
A. I have already dealt with that question too.
Q. I am now putting Groben's affidavit to you and reading to you literally how he viewed the situation after he had interrogated Seiler. Since there was no reason for me to have any doubts against the correctness of the testimony under oath of Seiler, it was clear to me that I could no longer keep Katzenberger under oath. Therefore, I informed lawyer Dr. Herz about the result of that interrogation, and gave him to understand that this was the appropriate time to complain against this warrant of arrest-
THE PRESIDENT: The witness just reviewed that same testimony himself, within the last half hour. The Court dislikes having to interrupt you so frequently, but it is entirely up to you to limit your questions. If you don't limit them yourself, the Court will limit you with increasing severity.
Court No. III, Case No. 3.
BY DR. KOESSL:
Q Groben said that he gave a hint to the defense counsel.
THE PRESIDENT: The witness has discussed that matter and explained why he thinks that Groben did it. We remember the testimony.
BY DR. KOESSL:
Q All right. Did you consider the warrant of arrest justified?
A Of course, due to my point of view, the one I later took up; otherwise I would not have rejected the complaint against the arrest.
Q How does it happen, then, that you reproached the witness Groben?
THE PRESIDENT: You disagreed with him, didn't you?
BY DR. KOESSL:
Q You were not in agreement with Groben's procedure?
A I have already stated that there was some dispute in regard to two points. One point was the question-
THE PRESIDENT: If you have already stated it, don't state it again.
THE WITNESS: On the other hand, it was in regard to the arrest or non-arrest of Katzenberger.
THE PRESIDENT: Now, just a minute.
BY DR. KOESSL:
Q Is it possible that the procedure that Groben adopted was due to an erroneous interpretation of the German Code of Legal Procedure?
I will repeat: Is it possible, witness, that Groben's procedure was based on an erroneous interpretation of the German Code of Legal Procedure?
A That is impossible, because the German Code of Legal Procedure, on that point, gives the legal procedure of that situation in absolutely unequivocable language, and everybody who has to deal with that knows that in his sleep.
Q Can you tell us what statements Seiler made which caused Groben to arrive at the conclusion that the warrant of arrest was not justified?
Court No. III, Case No. 3.
THE PRESIDENT: Let me ask you first, what is the source of your information as to what Seiler told Groben?
THE WITNESS: I would have to use the opinion, because that seems to be the only thing that remains from the Seiler file.
THE PRESIDENT: You mean the opinion of the Court?
THE WITNESS: Yes.
THE PRESIDENT: We have read that.
DR. KOESSL: May it please the Tribunal, with that I have concluded one chapter. The examination of the witness showed--perhaps yesterday, but certainly today--that at the present time I am in such a bad state of health that it is impossible for me to continue the examination of the witness. Therefore, I wish to request the Tribunal to permit me to make a small pause for the time being, by perhaps having a colleague of mine present documents, or perhaps having the next defendant enter the witness stand. I am, in fact, not in a position to assume the responsibility.
THE PRESIDENT: We will permit your colleague to present documents, but we desire to complete this defendant's testimony before taking up the case of any other defendant.
DR. KOESSL: Yes.
THE PRESIDENT: The prosecution has some matters for 1:30 this afternoon. We will recess now until 1:30 this afternoon.
MR. WOOLEYHAN: Your Honor, at what point in this somewhat irregular procedure am I expected to cross-examine? After the conclusion of his final direct?
THE PRESIDENT: Yes. We expect to proceed with the examination of this witness, subject only to the intermission during which time some documents may be put in for the convenience of Dr. Koessl.
DR. KOESSL: Yes, your Honor.
(A recess was taken until 1330 hours.)