Official Transcript of American Military Tribunal 111 in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 21 August 1947, 0930-1630. The Honorable James T. Brand, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal 111. Military Tribunal 111 is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of the defendant Engert, who is absent due to sickness, and the defendant Barnickel, who has been excused.
THE PRESIDENT: The case of the defendant Engert has been disposed of by order of the Court yesterday. The defendant Barnickel, at the request of his counsel, is absent for this day only in order to assist him in the preparation of his defense, but he is excused by the Tribunal.
DR. KOESSL (for the defendant Rothaug): May I continue, please?
DIRECT EXAMINATION - continued BY DR. KOESSL:
Q Witness, what is it due to that after the interrogation of the witness Seiler, the investigating judge Groben considered that the warrant for arrest had been unfounded, whereas prosecutor Markl, on the basis of the same situation, as evident from the files, did not stop proceedings but filed an indictment with the Penal Chamber?
A That was due to their different evaluation of the concept which was decisive for the entire question--that is to say, the concept of sexual intercourse within the meaning of the racial laws. Groben evidently assumed that sexual intercourse within this meaning meant cohabitation; whereas Markl, basing himself on the jurisdiction of the Reich Supreme Court which had gone very far on that question, by a sexual intercourse understood all activity in the sexual field. Markl evidently in applying for the witness being taken under oath was anxious to find out whether the witness under oath would still admit that certain delicate situations had occurred; whereas Groben assumed that by administering the oath, one wanted to discover whether beyond that situation the witness would also admit that she had slept with the defendant.
Since the witness had disputed that had occurred, Markl -- no, Groben assumed that there was no reason why the warrant for arrest should have been issued. On the other hand, however, the witness had sworn to it that the situations which have already been mentioned here had occurred--a fact which caused Markl to affirm all reasons why the indictment should be filed.
Q What was your personal point of view concerning that question?
A In my view, the fact that the oath had been administered to the witness, had gained us nothing and the situation had remained the same as far as the facts and the evidence were concerned; the question as to whether the oath was to be administered to the witness should have been decided at the trial. As it was a case of circumstantial evidence, that procedure would have offered a more adequate and more certain basis for the solution of that question than the evidence of the files, which was rather scanty at that time.
Q What do you have to say about the charge that you had caused the perjury proceedings against the Seiler woman?
A In connection with the examination of the appeal against arrest on the part of Katzenberger, we were naturally forced to deal with the question as to what extent the statements by the Seiler woman corresponded with the truth. What was particularly important were the statements which she had made under oath before the investigating judge. The question was whether that statement was credible. We were unanimously of the view--we, at the chamber that had to deal with the matter--that her statement was incorrect, to say the least, on the point where the witness maintained that concerning the delicate situations to which she had admitted she had only considered them to be sensual but not sexual situations.
All the same, to start with, I advised against issuing a warrant of arrest for the Seiler woman because the situation as a whole did not appear to me to be sufficiently clarified to warrant a measure that went as far as that. Furthermore, I was bothered by the idea that in that situation, if more care had been taken when the oath was administered, a great deal of trouble could have been saved. That question and the question of instituting proceedings against the Seiler woman was to be left to the result of further investigations that were to be made.
As to when the prosecution decided to institute proceedings against Seiler based on the charge of perjury and as to what further investigations had been made by that time, that I cannot judge, for I did not pay any attention to further proceedings. They didn't have anything to do with me. For the rest, the objective violation of the oath was only all too evident from the transcript.
Q It has been asserted that you had coupled together the Katzenberger and Seiler proceedings as to exclude the Seiler woman as a witness. What was the situation there?
A Under the German code of procedure, there are always as many penal proceedings pending as there are defendant. Under certain conditions, such penal proceedings can be tried together for the purpose of uniform trial and decision. That is what we call joinder of penal cases. That joinder may be decided by the Court, concerning cases which are pending with it separately. But such joinder may be established by the prosecution itself--that is done by the prosecution instituting proceedings by one indictment. With such combination of several proceedings in one indictment, the joinder has been established. That was what was done in the Katzenberger-Seiler case. The prosecution, by filing one indictment for both defendants, had already established the joinder prior to the files reaching the court.
The joinder of the two cases was therefore neither due to a file prepared by me nor to a file prepared by the Court.
Q Would it have been possible for the prosecutor to proceed differently?
A Naturally. He could have filed separate indictments. The question was merely whether that would have been correct from the technical point of procedure.
Q What are the legal provisions on which a joinder of penal cases was based at the Special Court?
AA joinder is based on Article XV, Section 2 of the Competency Order.
Q When do the conditions exist for a joinder, such as demanded by the law?
A Such conditions can arise from all sorts of situations. They exist in particular if one offense developed from another offense, and if the judgment has to be based on the same facts. That was the case in the Katzenberg-Seiler affair, which we have been discussing.
Q That was the reason for the prosecutor in this particular case to connect the two cases?
A Both cases, as is proved clearly by the opinion of the court, had to be decided on the basis of the same facts. Therefore, a joinder was altogether natural and corresponded to the customary treatment such as was applied in other cases as well.
Q What was the legal nature of such a joinder?
A It was purely a measure of technical procedure which not only in this case but whenever it is adopted has to be judged by standards of expediency.
Q Is a defendant entitled to ask for not combining his case with that of another defendant because in the case of a joinder he loses evidence?
A The defendant does not have such a claim.
According to the general legal doctrine, which existed prior to 1933, a joinder is admissible even if as a result of a joinder one co-defendant can no longer appear as a witness. But if it is decisive that the co-defendant should appear as the witness, the two cases can be separated after all so as to have an opportunity to examine the co-defendant as a witness. But that is left entirely to the discretion of the court, and the defendant has no claim to have that question decided in one definite way.
Q When several penal cases are combined, does that mean that all possibility is excluded to examine one of the co-defendants in the same proceedings as a witness? I would like you to supplement your previous answer and to tell us whether it is possible temporarily to separate proceedings.
A Such temporary separation is allowed expressly by jurisdiction. Therefore, during one proceeding, temporarily a separation can be ordered. One co-defendant can be examined as a witness, and after he has been examined the case can be recombined.
Q Didn't at any time anybody -- be it the prosecutor, the defense counsel, or the defendants -- during the trial make a motion to separate proceedings?
A Such a motion was not made either at the trial or outside of it by anybody. Not even the mere idea of doing that was ever mentioned, and the reason was that at that time nobody regarded the joinder of the two cases as a defect.
Q Ferber in his affidavit, which has already been quoted, says that ha pointed out that divorce proceedings could also be discontinued when it had been established that a witness had committed perjury. Has that idea anything to do with the question which we are discussing now?
A That idea is quite off the mark. It is correct to say that under article 148 of the Code of Civil Procedure, for instance divorce proceedings -- that is to say, civil proceedings -- may be discontinued if the question that a witness has committed perjury arises, and that the civil judge may wait for the end of penal proceedings which have been instituted, without, however, being tied by the outcome of such penal proceedings. On the other hand, the penal proceedings also have the legal possibility of discontinuing proceedings if a question of civil law turns up during the penal proceedings. That is the parallel case for the example which Ferber has quoted. In one case, we are concerned with the question of penal law arising in the sphere of civil law before a civil court, and on the other side we are concerned with the question of civil law arising in the field of criminal law before a criminal court. But in our case, a question of penal law arose before a penal court, and the question had to be solved on the basis which I have mentioned, that is to say, according to the principles and the doctrine of joining penal cases.
Q In the case under discussion, was it likely that the chances of the two defendants might be affected by joining their cases?
AAs I have stated before, the legal position of the defendants could not be affected, and their chances were not affected either. If one had thought that their chances might be affected, I think in that case the two defense counsel would have made a motion to have the two proceedings separated. If one wishes to judge the situation properly, one has to bear in mind the following; that is to say, one has to think of the situation such as it would have been if the Seiler woman had not been a codefendant but a witness.
In that case, she would have made no different statements at the trial than she had made at her interrogation under oath before the investigating judge, for she made the same statements as a co-defendant, and we had to discuss her statements under oath before the investigating judge from every point of view for the purpose of the verdict. What difference would there have been, as far as our judgment was concerned, if she had repeated the same statements at the trial in her capacity as a witness? The real problems of the proceedings would not have been affected in any way by that and they could not have been affected.
Q. Did the fact that the two cases were tried together not also mean that there were particular opportunities?
A. Trying the two cases together, not only in this proceeding but in all proceedings, constituted a certain danger in so far as co-defendants, while the trial is progressing are no means of evidence. As a consequence -- I want to correct that. The cases are only tried together until the time of the judgment. After the judgment, therefore, codefendants may be called as witnesses, and for the reopening of a trial they constitute new evidence when they appear as witnesses because at the trial, in consideration of the fact that they were co-defendants, they had not been heard as witnesses. Therefore, after the conclusion of the trial, one of the co-defendants could call the other co-defendant as a witness at the retrial.
Q. Was an attempt made to have the case retried?
A. No attempt was made to have the case retried. Oh, yes, may I correct a reply now which I gave some days ago in answer to a question which one of your Honors put to me? I was asked whether Poles and Jews would have been able to take legal recourse, that is to say, were able to ask for their case to be retried. In reply to that question I said that during the time when I was a judge, Poles and Jews did have that opportunity. That question has to be answered in the affirmative, for certain in the case of Jews who did not cone under the law against Poles and Jews, that is to say, for Jews who lived in Germany and who were German citizens, limited to the time of which I spoke.
What happened later I don't know. I did not follow developments. In the case of Poles, I assumed until now that the limitation that only the public prosecutor could use such legal remedies referred only to the Polish territories themselves and not to the Reich. I am not yet clear about that but I admit the possibility that limitation also referred to Poles who were working in the Reich.
Q. Witness, the Witness Bauer, in Exhibit 157, mentions that shortly before the date at which the trial opened he had been to see you at your office because he had been asked to give an expert opinion on Katzenberger.
He says that you had said that such expert opinion was merely a matter of form. Bauer says that you had said that such expert opinion was merely a matter of form. Bauer says that he asked you at that time whether, in the case of that old man, there had really been a case of racial defilement. You are supposed to have said it was quite enough for you if the swine had admitted that a German girl had been sitting on his lap. It goes on to say that you had been rung up by the Gauleadership or Haberkern and you had apologized because the date for which these big wigs had been invited had to be postponed.
"In answer to a further question, which naturally I did not understand," so Bauer continues, "Rothaug said: 'That is only a matter of form.' Then in reply to another remark from the other side of the telephone he said -- and while he was saying it he stared at me - 'I hope that things are all right as far as that man is concerned.' I assume that he was talking of the doctor who had given the expert opinion. Katzenberger was neither mentally ill nor mentally weak. On the contrary, he knew exactly what he had to expect of Rothaug."
Do you remember Bauer's visit to you?
A. Yes, I remember that visit.
Q. Were you alone with Bauer?
A. As far as I remember we were alone and we talked alone.
Q. Why did Bauer come to see you at the time?
A. After I had examined the files, and I had examined those files shortly before the opening of the trial -- perhaps one day before the trial opened - the idea came to me that an expert opinion should be given on Katzenberger. And, as was customary in such cases, I had the physician of the District Court informed because we were in a hurry and I asked that physician to send me a doctor who was free to undertake the examination, and give an expert opinion. And that must have been how Dr. Bauer came to see me at the office to ask for the files for his information.
Q. Did you instigate that suggestion that Katzenberger should be medically examined?
A. That was done exclusively at my initiative. The prosecution themselves in this case had refrained from having an expert opinion asked for, but because I deemed it necessary, after I had read through the files, I asked for such an examination.
Q. Bauer says that Katzenberger had neither been mentally sick nor weak. Why was it then that you asked for an expert opinion on him at all?
A. Under the assumption of Article 51, Section 1 or 2 it is not necessary that the defendant should be mentally sick or weak in the medical technical sense. There may be other causes where life itself would not consider that it was a case of mental sickness or weakness.
The reason why I asked for an expert opinion on Katzenberger was due to an experience which I had repeatedly in the case of old people; that is to say, that arterio-sclerosis in the brain region may affect the mental capacity of the individual and his capacity of standing trial. Therefore, as in many other cases, in consideration of the age of the defendant, I ordered that an expert opinion should be given. I told Bauer, because I felt a certain need to apologize for hurrying him into this job, as the files did not give any indication that the defendant suffered from any mental trouble that only his age had caused me to ask for a medical opinion, and I explained to Bauer that this was only a matter of precaution.
Nowadays, of course, this is called a matter of form, but by ordering that such a medical opinion was to be given, I was very serious when I asked for that opinion for otherwise there would have been no point in it at all.
Q. Is it right that on account of that expert opinion you postponed the date for the opening of the trial by a few days and was it quite easy to postpone a date?
A. It is correct, and in this connection, to give the medical expert time, I postponed by a few days the date which had already been fixed; and it did make some difficulties because the whole machinery of witnesses had to be upset and under certain circumstances, a report would have to be made.
Q. Did Dr. Bauer know the files at that time?
A. He didn't know the files because he called on me to get them.
Q. Is it right that Bauer made a statement to you which showed that he was in sympathy with Katzenberger's situation?
A. I know nothing about that. People frequently imagine such things and then believe in them.
Q. What was the age of the Seiler woman at that time?
A. As far as I remember, she was a woman of over thirty.
Q. Were you in the habit of describing women over thirty years of age as German girls?
A. Neither I did that nor did anybody else.
Q. Did you discuss the Katzenberger case with Bauer?
A. I am certain that I must have done so for there was a need for certain instructions and it is most likely that I mentioned the case as such and I am inclined to assume also that we discussed that main point of circumstantial evidence.
Q. How long had you been familiar with the Katzenberger case at that time?
A. At least eight months and certainly it was no longer a case that could have caused any emotion with me.
Q. Did you actually make that statement with the contents and in the form as it has been described?
A. I think that is out of the question.
Q. Do you remember the telephone conversation?
A. I remember quite vaguely that there was a telephone conversation.
Q. Who put the call through?
A. I don't remember for certain but I assume it was an office, -if that telephone conversation had any connection with the Katzenberger case at all -- which had heard that the date had been postponed, and these must have been such agencies or people who, by reasons of their office, had to be notified of the postponement. Probably -- and I assume that on account of the facts which Bauer describes here -- it was the prosecution which in the meantime had been informed that the trial would be postponed and which, consequently, wanted to know why the case had been postponed, whether more difficult reasons applied or what had happened.
Q. According to your recollection what may it have been about?
A. It can have referred to any case. It can also have referred to the Katzenberger case. The man asked why the trial had been postponed and I told him that I thought it was necessary to have an expert opinion by a physician and probably he asked then whether any serious difficulties had arisen and probably I told him that this was only a matter of precaution.
Q. Did that conversation refer to Bauer in any way and did you stare at Bauer when you were speaking the words, "That man will be all right"?
A. Oh, that is absolutely out of the question. What could Bauer have done in that matter? It is just as likely -
THE PRESIDENT: The question is as to whether you stared at someone. That does not merit a very long answer.
Q. Bauer makes a similar statement where he says that he tried to take care of a Pole who had been sent in with bad burns. In that connection he says he had a telephone conversation with some official at the court or with the prosecution. Bauer's statements are somewhat vague and he left it open whether that conversation referred to you or to Oeschey. Did anybody speak to you over the telephone about a Pole who had burns or something like that?
A. I know nothing about that and it is out of the question that somebody talked to me over the telephone about that. I assume that all that happened after my time in office.
Q. Concerning the preparations for the trial in the Katzenberger case, Ferber says, in Exhibit 151, "For the trial at Courtroom 600, political persons were represent in large numbers and Rothaug had managed to get the Reich inspector there too. I remember that tickets were issued for the trial and that a number of reserved seats had to be given to Rothaug for representatives of the Party. Rothaug evidently was trying, under a semblance of law, to give a pretense and to create the premisses of destroying Katzenberger as a Jew."
Did the preparations of the set-up in which the trial was to be held, give any indications of such intentions?
A. That question has to be denied. Naturally the preparations for any trial do not allow conclusions as far as intentions go. All one can conclude is whether a case in itself is considered important or not.
But, as for the judgment or the outcome of a case, nothing is indicated as far as that is concerned.
THE PRESIDENT: Were tickets issued for admission to the trial?
THE WITNESS: Yes, Your Honor.
BY DR. KOESSL:
Q. I shall come back to those tickets later. What importance had to be attributed to the fact that a trial was held in front of such a large public?
A. Under the German Code of Penal Procedure, the fact that the public is admitted to a trial constitutes one guarantee that the proceedings will be conducted in an orderly manner.
Q. Did Katzenberger have a defense counsel?
A. Yes, he had.
Q. Was that defense counsel a Jew?
A. Yes, he was.
Q. Did the Seiler woman have a defense counsel, too?
A. Yes, she had.
Q. What sort of a man was the defense counsel for Seiler? Was he a National Socialist or what was he?
A. I knew him. He wasn't a National Socialist for certain. My impression was that he was entirely uninterested in politics and he was devoted to his profession.
Q. Was the date of the trial announced in the press?
A. I don't recollect that.
Q. I would like you to tell us whether the defense counsel of the Seiler woman was a Jew by any chance.
A. No, no.
Q. Was the date of the trial announced in the press?
A. I don't remember that.
Q. You just told us that admission tickets were issued.
A. The question was -- this is the way I want to frame my answer:
I assume so because it has been maintained here but I don't know that for certain today.
Q. Were tickets issued for other trials too?
A. Yes.
Q. And did you know of the members of the Franconian Party Agencies who were among the audience?
A. I can't remember that I saw anybody from a Franconian Party Agency among the audience, anybody whom I knew.
Q. How was it that Reich Inspector Oechsle was present and why was he interested in the outcome of the case?
A. The sphere of work of Reich Inspector Oechsle was concerned with internal party matters and in the execution of his duty he occasionally came to Nurnberg. It was at one of those occasions that I met him. As I have already stated, the Seiler woman was a Party member and, therefore, in the proceeding against her, according to the existing provisions, the prosecution had to report to the Party, and that is how it became generally known and that probably was how he heard of it.
He asked me whether it was permissible for him to attend the trial. As it was a public trial, I said, "Yes", it would be all right for him to come, and that was how the came to attend the trial. He wore civilian clothes, by the way, but he didn't display the flattest interest in the outcome of the case as such.
Q. Were there any reserved seats in the court room?
A. There were reserved seats. There were about three or four seats which were reserved for representatives of the administration of justice, whose task it was to keep an eye on the way proceedings were conducted.
Q. Did you ask for admission tickets to be handed to you?
A. I had nothing to do with the admission tickets, as such. This is the way it was. When a case was pending with me, I had to submit a report to the so-called Justice Press Office so that agency was in a position to judge whether the case might, in any way, affect the public. That Justice Press Office (Justiz Presse Stelle) did its work according to its own directives which it received from the administration of justice. That Justice Press Office, for its part, negotiated in such questions as would affect the public, with the so-called Gau Propaganda Office (Gau Propaganda Amt) which, for its part, decided, in agreement with the Justice Press Office, whether a case was to be discussed in the press be it that the date was announced, be it that the proceedings were reported. I had no influence on those matters. If it was decided that the case was to be reported in the press, then it was to be expected that crowds might want to enter the court room and, so as to deal with such crowds, we used to issue admission tickets which were distributed by the office. They were distributed to anybody who came along. It did happen that people, who were particularly interested in attending a certain case, did not get any ticket and came to me and asked me to give them an opportunity to get into the court room.
To be able to help them, I asked for something like eight or ten tickets to be put on my table. As a rule, such tickets weren't used at all. It did happen sometimes.......
THE PRESIDENT: (Interrupting): I think you've covered the matter of tickets sufficiently, adequately. You may pass on to something else.
BY DR. KOESSL:
Q. Who assigned Ferber to be one of the associate judges and to write the opinion in the Katzenberger Case?
A. That can only have been I, under Article 69 of the Junicature Act.
Q. Were there any other ways open to you?
A. Naturally, I could have assigned any other member of my chamber for this case.
Q. Did Ferber make any attempt to get out of that assignment?
A. He didn't make any attempt whatsoever.
Q. Were there any opportunities for him to stay away?
A. Naturally, he could have changed with another judge, or he could have reported sick.
Q. Did Ferber ever make a gesture, did he give an indication, did he hint anything to you to the effect that he assumed that you intended to destroy a Jew by keeping up the semblance of legal procedure, or what attitude did he adopt?
A. Ferber never gave any indication of the kind. We never thought of such matters.
Q. Do you know of shootings and such like matters?
THE PRESIDENT: What is that question again? What is that question?
DR. KOESSL: Do you know of shootings?
THE PRESIDENT: What kind of shootings are you talking about?
DR. KOESSL: Ferber indicated that it had become known, and that that it had been mentioned in the press, that a man, who had been sentenced by the special court to three years imprisonment, was shot dead. That passage he further connected with other matters, and from that he says one might conclude that the associate judges had been influenced by those shootings and, therefore, had been made dependent and had been pushed into a situation where they were under compulsion. In that connection, I am referring to Ferber's saying that the associate judges had found themselves in a situation of compulsion, in connection with the way that Ferber, referring to the Katzenberger trial, said that Rothaug observed a semblance of law, but actually wanted to exterminate Katzenberger.
THE PRESIDENT: The only question was, whether he knows something about shootings. I suggest that the question was a little indefinite. Did shootings have anything to do with the Katzenberger Case?
DR. KOESSL: Only with that situation of compulsion in which the associate judges were supposed to have found themselves.
THE PRESIDENT: Let him answer.
THE WITNESS: The question itself, I believe, has been discussed repeatedly and at great length. Those shootings were an entirely different matter. Naturally, people know about them because it had been reported in the press, but I consider it altogether out of the question/..........
THE PRESIDENT: (Interrupting) Put your earphones on. Do you know anything about any shootings which related to the Katzenberger Case in any way?
THE WITNESS: No, no.
BY DR. KOESSL:
Q. To revert to those shootings, did those shootings in any way act upon the judgment passed in individual proceedings?
A. Not in one single case. Those are pure hallucinations which evidently were produced after the catastrophe. Nobody had to have any fear.
Q. However, Doebig, in his affidavit says: "I believe that I am not wrong..," and he is referring to you here, "...if I say that once I heard Rothaug say that it was the fault of the courts themselves that the SS was more and more developing the habit, concerning dangerous elements who had hot been sufficiently punished by the courts, to exclude them from the community and to exterminate them."
A. I consider it advisable not to discuss these questions in this particular context because they have nothing to do with the Katzenberger Case.
Q. Now, we're going to examine the statements by the witness Seiler. The statements by the witnesses Ferber Seiler and by Dr. Bauer are criticizing your method of conducting the Katzenberger case. According to the testimony by the witness Seiler, you addressed the audience and said: "The Jews are our misfortune. It is the fault of the Jews that this war happened. Those who have contact with the Jews will perish through them. Racial defilement is worse than murder, and poisons the blood for generations. It can only be atoned by exterminating the offender." English transcript, page 1052.
Did you made remarks of that kind, or of a similar nature, or what exactly did happen?
A. That expression: "The Jews are our misfortune" or "It is the fault of the Jews that the war happened ", or "Those who have contact with the Jew will perish through them" -- those expressions are well known slogans from the Stuermer, which I think appeared in large letters in every issue of the Stuermer.