A I do not remember one single case.
Q The witness Groben in Exhibit 153 has made the following assertions: - which was also mentioned in the opening speech, and I quote: "Rothaug's opinion in this case (Katzenberger) was based in my opinion purely on blind hatred against the Jews. If the requirements were not given to sentence Katzenberger on so-called race defilement, then certainly one could not apply paragraph 4 of the decree against public enemies because if it could not be determined at all when Katzenberger and Seiler met for the purpose of alleged sexual intercourse, then it is even less possible to state that that was done by taking advantage of war time conditions. Briefly, one had to violate the facts in every manner to bring about a judgment against Katzenberger for so-called race defilement in connection with paragraph 4 of the decree against public enemies. I was greatly oppressed when Rothaug pronounced such a sentence, which can only be called legal murder."
THE PRESIDENT: I think it is time that we should go to school. I am about to make some suggestions to counsel. They are made in order to facilitate and aiding Counsel and all who have heard the long quotation which has just been read into the record as preliminary to asking a question. That method is a complete waste of time. The first point as I caught it in that quotation was whether there was blind hatred of the Jews. Now, regardless cf whether the affidavit or the witness has said that Rothaug had a blind hatred for the Jews, all that is necessary is to ask him: did you have a blind hatred of the Jews? And he can answer it. Then, concerning the public enemy law - why did you apply the public enemy law? Then, it is charged that you violated the facts - did you violate the facts? In three or four questions, as short as those, you could bring out every point which the defendant is entitles to have brought out, without having burdened us with long dissertations from a witness who, after all, is testifying against your client. I have been attempting for some days to suggest that this method of examination was equally effective; in fact, much mere effective; and I am attempting once more to suggest to counsel that direct questions, as to what the facts are, are far preferable to the reading of a long statement by an opposing witness.
It is a very simple matter, counsel, and you, as a practicing lawyer, must know how to do it. The subject matter covered by those statements can be inquired of from this witness; you can have his answers. Now, try to do that.
BY DR. KOESSL:
Q Please witness, explain briefly why you applied article 2 and Article 4 of the Public Enemy Decree in the case of Katzenberger.
THE PRESIDENT: That is the way to ask questions.
A What really was the cause for the court to apply these two provisions in the Katzenberger case has been discussed at length in the opinion which has been submitted to the count as a document. I could not say any more in answering that question; I can only summarize and say the following: The judgment is based upon the following: The fact of race defilement was considered a proved fact. First, in those delicate situations which I have mentioned - that was in accordance with the decision of the Reich Supreme Court. Paragraph 2 of the decree against public enemies was applied because it had been established that Katzenberger -- and according to the political conditions in the streets of Nurnberg, if I may say it like that, that was not possible in any different way -- Katzenberger used the hours of the evening and night to get to the house of the woman Seiler. It was clear to us at that time what the purpose was that was connected with that; that in particular these visits had the purpose of at least maintaining these relations; according to the legislation of that time, that was sufficient; and to that the main point of Paragraph 4 was added which was based upon the fact that her husband had been called to serve in combat. That quite generally was considered a fact conditioned by the circumstances of war, based upon the decision of the Reich Supreme Court, and its exploitation was a crime which came under the consequences of Paragraph 4, Yesterday, of the day before yesterday, in another connection I discussed the relation between Paragraphs 2 and 4, and I pointed out what importance the concept of the so-called sound sentiment of the people gained for this question of applying these provisions in individual cases; and I have explained that the purpose of introducing this term into the pattern of the facts according to paragraph 4, was to withdraw a certain number of types of cases, not too severe cases, from the application of that paragraph, but that nobody doubted all over Germany that one could include a crime of race defilement, so that by proving race defilement, the case was fixed to a far reaching extent in the sense of the application of that paragraph of the decree against public enemies, which included a higher extent of penalty.
To that one has to add the fact that the Reich Supreme Court in its decisions was of the opinion that to assume the existence of a severe case one did not have to have proof of a severe case of race pollution, but, as it is stated in one of the Reich Supreme Court decisions, merely of a serious crime, and whether one had to assume whether or not that was a serious crime was based on the standard which the legal system as such provided. That is the most decisive thing. The legal system of the Thrid Reich, at any rate, in its legislation put the concept of the people which was based upon the idea of the race on the first place, and that to the extent that any attack against it and its legal titles was considered a very serious crime.
THE PRESIDENT: May I ask you, counsel for the defendant, or the defendant, if you propose to submit to us those decisions of the Reich Supreme Court, to which reference has been made, and which define a.s being included within the term sexual intercourse, acts which did not involve copulation. I think we would be interested in seeing the facts on which those decisions were based. Counsel has referred to them several times.
A Mr. President, we were very careful to submit all these decisions to the Court.
DR. KOESSL: They are in Document Book No. 1. I shall announce the numbers of these exhibits in the afternoon. They are decisions by the Reich Supreme Court. Moreover, I refer to excerpts from the Leipzig Commentary which L have also submitted where statements about the standards (Wertskala) are contained to which the witness has referred. Also in that case I shall announce the numbers of the exhibits.
THE PRESIDENT: Those are the cases on which the witness has been relying with reference to his contentions, his stated opinion, that the so-called lesser acts constituted violation of the law concerning German blood and honor. We shall be very glad to have those references given to us.
DR. KOESSL: Yes, Your Honor.
Q Witness, were there any doubts among judges-
A I have not quite finished before. What I explained is based upon the practice and decisions of the Reich Supreme Court. In that particular case one had to add something which was specifically mentioned in the opinion. I am of the opinion that that judgment, also as far as the extent of the punishment is concerned, followed the specific policy of the Reich Supreme Court in that field, and that is the opinion we had about it.
THE PRESIDENT: Under German judicial procedure did you find yourself bound by the decisions of the Reich Supreme Court?
A Bound by the decisions of the Reich Supreme Court in the sense of a legal consequence, binding consequences, we were not; but of course the decisions of the Reich Supreme Court as it is the case with all Supreme Courts offered a direction and one could only deviate from that direction if one had better reasons to do it.
THE PRESIDENT: Yes, I understand. This matter has boon explained.
Q Among the judges concerned during the deliberations, was there any doubt about the guilt of Katzenberger?
A I remember the deliberations very well. That conference was as peaceful as could be; I cann't say it any different, for in the course of the trial which lasted a day and a half, the entire occurrence as far as the facts were concerned was based upon the statements of the defendants, and in connection with what the witnesses testified to, and had developed into such a clear picture that there could not have been any differences of opinion; and, after a very short time--and I remember that very well also--we arrived at a decision and actually started to write the judgment down, but considering the importance of the case, we extended the time for deliberations so that the impression should not be made that we wanted to pronounce a hasty decision. There were no difficulties at all, the reason being that the facts themselves were of a compelling logic; and that anything else which was the consequence of the facts just arose from them logically, and in a way as one had to evaluate those things at that time, and, of course, we could not evaluate it based upon any different philosophy, but only based upon the philosophy of and our people, among which we lived.
Q Which motions were made by the defense counsel?
A I would like to say with certainty that one of the defense counsel, without being able to tell who it was, made an attempt in the direction of a lenient sentence, and that he was trying to combat its evaluation as a serious case, but that there was no doubt left about the basic facts in the case. That is the way I remember the case, and it must have been like that; and that was also manifest by the calm deliberations where no points of argument came in existence.
Q Was any one of the associate judges of a different opinion concerning the extent of punishment? Did any one of them vote against the death penalty, for instance?
A The core of the question from the very beginning was the following.
THE PRESIDENT: Let me ask you a question. Did all of the judges vote for the death penalty? Answer yes or no.
THE WITNESS: Yes, absolutely.
THE PRESIDENT: Next Question.
BY DR. KOESSL:
Q At that time, among the jurists around you - but those who were not in direct contact with the case - were there any discussions about that sentence?
A In no way at all. That sentence was never criticized in any way or considered doubtful by jurists who were not connected with the case which would normally be possible.
THE PRESIDENT: Ask your next question.
BY DR. KOESSL:
Q The witness Engert stated that when he submitted the files to the Ministry of Justice, he spoke to Freisler, and Freisler had had misgivings about the opinion from the legal point of view. When Engert returned from Berlin, did he inform you about that opinion of Freisler's?
A I remember that occurrence very well; it happened after Engert had been in Berlin and case to see me. That concerned something entirely different than what was explained today. I was very much surprised and wanted to know the reason why the files were requested so surprisingly, and Engert told me that the reason was the fact that the woman Seiler had been sentenced. In that connection Freisler was supposed to have said that now he knew why the files had been requested. It had not been taken into consideration that the Fuehrer did not want to see women sentenced in such cases; in all cases of that kind, which were based on sexual relations, he attributed the guilt only to the an and that should have been avoided. That was the only question, and he only talked to me about that point, apart from some humorous details which he gave me from Berlin, but which are not interesting in this connection.
However, concerning the fact that Freisler allegedly told him that he did not consider the sentence correct or only that he considered it doubtful at all, Engert did not tell me anything about that.
THE PRESIDENT: That is the answer.
BY DR. KOESSL:
Q What would have been Engert's duty, according to what you know about the duty of a prosecutor, if he had found out that there were some misgivings about the sentence?
A If that was the case such as he describes it now, that he did not consider the sentence correct, and in this case also had the approval of his so-to-say top superior - that is to say Freisler - then it was clear that it was his duty on his own to take legal steps, by applying legal remedies. There cannot be any doubt about that.
Q What did he do?
AAs far as I know, unless something occurred so far removed from my sphere that I couldn't know about it, Engert neither directed the senior prosecutor to do anything about the sentence nor did he even touch any legal remedies in that case. That is why I am so surprised about that entire matter.
JUDGE HARDING: One question, please. Could he have asked for further hearing in this case, or retrial, under the Law Against Poles end. Jews? Could it have been reopened?
THE WITNESS: No, no, Your Honor, that is not what I meant. Referring to the Katzenberger case the Decree Against Poles and Jews could not be applied there because Katzenberger lived in Germany and moreover he was a German citizen. The Decree Against Poles and Jews was applied only to Poles end Jews in Poland and such Poles and Jews from Poland who were residents of the Reich but who, at a certain time -- I think it was 1 September 1939 -- had had their residence in Poland. These prerequisites did not exist in the case of Katzenberger.
Katzenberger was not sentenced on the basis of the Decree against Poles and Jews.
JUDGE HARDING: And he would not have been barred from a right to reopen the trial, then, on the basis of that law?
THE WITNESS: It was not impossible. He, as well as his defense counsel, could appeal for retrial. Moreover, as I had intended to explain before, according to German law and German rules of procedure the prosecutor had the duty to apply these legal remedies once he was convinced that the sentence was wrong, because the prosecutor in Germany is quite generally under the obligation to safeguard the legality of court decisions by using appropriate legal remedies, also in favor of the defendant.
JUDGE HARDING: It depended upon the action of the prosecutor, then? The prosecutor had to take the action for further hearing, is that right, and not defense counsel?
THE WITNESS: The defense counsel could do it, and of course if he had any misgivings he had to do it. But the prosecutor, at the very moment when he arrives at the conclusion that a. sentence is wrong, is under obligation to apply and exhaust all legal possibilities.
BY DR. KOESSL:
Q When was the clemency appeal submitted?
A The clemency appeal was submitted - as far as I recall with certainty the general and specific circumstances - after Engert had returned from Berlin; and I conclude that from the following, which seems to me to be of a certain importance.
I know that Berber, who wrote the sentence, in spite of bis recognized ability, had to work very hard to get it done in time for Engert to take it with him to Berlin. Then Engert returned. Consequently, the clemency plea could only be submitted after Engert had come back from Berlin and allegedly had found out about the point of view of the highest official in the Ministry in Berlin who had to deal with the matter.
Q In what form was the report made?
A The report concerning the clemency question, as a matter of form, has two parts. The question which has been broached here will be clearly answered thereby. The first part always says, almost literally, there are no objections to the legal foundation for the evaluation of the facts in the opinion of the Special Court of such and such a date. And then, secondly, the opinion is stated concerning the possible reasons for clemency: the are of the defendant, any meritorious services he performed anywhere, and quite general points of view which may be of importance concerning the clemency question. The clemency question, of course, does not provide for any limitation on the points of view which may be listed.
Q What did the clemency report say?
AAs far as it became known to me, the report entailed a suggestion to reject the clemency appeal.
THE PRESIDENT: May I ask a question? You referred to the clemency appeal. Now, I understand that a report as to the question of clemency had to be made in all cases of death sentences. Isn't that true?
THE WITNESS: Yes, in all cases and through official channels, regardless of whether anybody else made a report.
THE PRESIDENT: I understand, but that report was not dependent upon any plea for clemency in the sense of a request that clemency should be extended, was it?
THE WITNESS: No, no; no, no.
THE PRESIDENT: And there was no petition asking that clemency be granted in this case, was there?
THE WITNESS: In this particular case the report was to the effect that clemency should not be granted.
THE PRESIDENT: Well, did anybody make a petition or a plea to the higher authorities that clemency should be granted?
THE WITNESS: That is not known to me, but I assume that it was so because it was always done; it was done quite regularly. The defense counsel did that on their own, but the prosecutor had to submit his report concerning the clemency question regardless of any other clemency appeal made.
THE PRESIDENT: Yes.
JUDGE HARDING: Did the President of the Court make his recommendations upon the matter of clemency and also the Court?
THE WITNESS: The Court, in connection with the deliberations before the sentence, had to concern itself with the clemency question, and that in the following manner. The decision was made about the sentence, and then the opinion concerning the clemency question was discussed.
JUDGE HARDING: Then the Court and the President both give their opinions upon the clemency matter, and also the prosecution? Isn't that correct?
THE WITNESS: Yes.
JUDGE HARDING: That was done in all death cases?
THE WITNESS: Yes.
JUDGE HARDING: Later on, part of that report was eliminated; is that not correct?
THE WITNESS: Later on - and I want to be understood quite correctly. At that time I myself was no longer active in the sphere of the Court; I was at the Reich Prosecution. We of the Reich Prosecution submitted the sentence with a very short opinion, but it is possible that it was the intention that these offices - the prosecution and the court should offer their opinion on that question only if there were serious reasons, from their point of view, to speak in favor of clemency being granted.
THE PRESIDENT: We will recess until 1:30 this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 21 August 1947.)
THE MARSHAL: The Tribunal is again in session.
DR. KOESSL: Concerning the decision by the Reich Supreme Court, a question to which the presiding judge of this Court wanted an answer, I would like to point out that in my document book 2 with reference to the Katzenberger case, I shall present a document number 12 which contains a decision by the Reich Supreme Court which deals with the question of the so-called substitute actions. That is one of those decisions which clarify the point that any sexual activity is sufficient to constitute a racial defilement, not only actual sexual intercourse.
THE PRESIDENT: Does it define what sexual activity is?
DR. KOESSL: Yes, it does. It is pointed out that all sexual activity is sufficient to constitute racial defilement. I shall refer to that again when I present my document.
THE PRESIDENT: It amounts to the defining of the unknown by the unknown.
OSWALD ROTHAUG -Resumed DIRECT EXAMINATION - Continued BY DR. KOESSL:
Q Witness, we came to the question as to what was the wording of Engert's clemency suggestion. Concerning Freisler's attitude, the witness Ferber gave us an account. Did the witness Ferber give you an account of Freisler's attitude and of Freisler's questions when Freisler appeared at the Strassbourg conference, and what was the account that was given to you as to Ferber's attitude at the Strassbourg conference?
MR. WOOLEYHAN: Objection, your Honor. That's been discussed fully in days past.
THE PRESIDENT: Have you covered that matter before:
THE WITNESS: I have talked about that matter up to the moment when it was said that I lifted ay finger, and when I had said that, you, your Honor, pointed out that that was not important.
For the rest, I have already made statements about that occurrence.
THE PRESIDENT: Objection sustained.
Q Ferber says that you had been aware earlier that he harbored certain misgivings. Is that correct?
A What really happened was that during the conference about which I testified this morning, I at that time had already been aware cf certain misgivings which he had had for sane time, so that there had been no further need for him to voice his misgivings during the conference. And by saying that he obviously wants to counter that doubt that the conference had been of a peaceful nature. According to the actual situation, however, what happened was that the judgment may only be based on the subject which was the subject cf the of the trial itself, and not on any thoughts which a person may have had at some time or which he may have put into words at some time or other, quite apart from the fact that such misgivings were never voiced at all.
Q The suggestions for the judgment which you read out after the conference, were those laid down in writing?
A In all cases without exception after we had sat in conference the outcome of that conference was laid down in the so-called judgment text. That contains the legal qualifications and the sentence. Afterwards that document, without exception, was signed by the judges who had taken part in the consultation. That written statement moans that the facts which have been laid down in that text represent the view of the Court with due reference to the majority laid down in the law. That judgment laid down in writing was read out by me word for word at the trial. That verdict however, does not contain the reasons for the judgment, the opinion. These were announced by word of mouth.
Q According to your personal observation what was the element which took the view of the racial problem into the critical phase, and will you tell us briefly how and why that was so?
A In my opinion the decisive element, the decisive factor in Germany, and that in consideration of the national character of the Germans, was not propaganda in word and writing but the fact that the political demands in that sphere had been remolded and laid down in law. In this, the superstitious adoration of the German for the legal form is expressed. His respect for the legal power of the state, for the higher authorities as such, is a strength in him and at the same time it is a weakness with him. It becomes a weakness when the power is based on evil.
THE PRESIDENT: We have no question about the interesting quality of the discussion, but it is not relevant.
DR. KOESSL: In the Katzenberger case we do not have the files. Therefore, the statements which the witness made on the witness stand here about the course of that trial cannot be substantiated by documents. What would be of importance would be in particular the question as to the manner in which the witness came to hear about the Katzenberger case, but I have obtained material of the Kreutling case and that was almost exactly the same as the Katzenberger case. The difference is mainly only this; in the Kreutling case arson had been committed, but otherwise by that case I can demonstrate that the description in the Katzenberger case is based altogether on the usual procedure adopted by the special court at Nurnberg. Therefore, I ask permission to give a short description of the Kreutling case. It would emphasize the account given of the Katzenberger case.
THE PRESIDENT: We consider it inadmissible for that purpose.
DR. KOESSL: By demonstrating the Kreutling case I would also like to answer the charge that Rothaug got hold of such cases and that is a charge which has been leveled against him with particular severity in the Katzenberger case.
THE PRESIDENT: The Tribunal has ruled on it.
BY DR. KOESSL:
Q. I am now coming to the Lopata case. The opening statement of the prosecution deals with the Lopata case. I am referring also to Exhibit 186; the Paulus Affidavit Exhibit k80 also the cross examination is of importance in this connection. In the English transcript it appears on Page 3793 through 3806. Exhibit Pfaff, 187 and Engert Exhibit 157; Grueb Exhibit 179; and furthermore the testimony by the witness Ferber, which in the English transcript appears on Page 1400; the testimony by the witness Doebig, which in the English transcript appears on page 1761; the testimony by the witness Dorfmueller, which appears in the English transcript on page 3154 through 3218; and the statement of the testimony by the witness Wilhelm Hoffman, in the English transcript on Page 3942.
Witness, I hand you the files of the Special Court in the Lopata case. Please give us the number and the designation of the files.
A. These are the Penal Files in the Lopata Case, for an offense against Article IV of the Law Against Public Enemies, SG-433, from 1942.
Q. In the opening statement by the prosecution, Lopata is described as a juvenile. Please tell us what was Lopata's age at the time when he committed the offense with which he was charged.
You will find reference to that on pages 12 and 13; on the righthand side in the case of page 12.
A. He was born on the 24th of June 1916. The offense was committed at the beginning of February 1942. A t the time when he committed that offense, the offender, therefore, was not a juvenile but he was a man, age 25½ years.
Q. The Lopata case was first tried by another court and not by the Special Court in Nurnberg. Please tell us what was the first court that tried his case and wherher that court was a Special Court.
A. The case was tried for the first time on the 28th April 1942 before the Local Court at Neumarkt in the Upper Palatinate. The Local Court was not a Special Court.
Q. What wore the facts which were the subject of the proceedings against Lopata during the trial at Neumarkt?
A. The defendant had been charged only with having approached a woman in a way in which it was sexually offensive, although that woman again and again tried to got rid of him. He was also charged with irregular behavior, which, however, in the course of developments played no important part and that charge was dropped.
Q. Please tell us what was the personal description of the defendant which was given by tho Local Court at Neumarkt?
A. In the judgment, it is pointed out that the defendant looked well-groomed, but he was insolent, lazy, and he had been guilty of the offense with which he was charged in a way, and I quote: "Which showed an unheard of extent of shamelessness and insolence of which only a member of the Polish nation would be capable." However, that is a statement made by the Local Court at Neumarkt.
Q. Did the Local Court at Neumarkt have anything to do with the Special Court at Nurnberg?
A. Nothing; no.
Q. Was the judgment by the Local Court at Nurnberg upheld?
A. Tho judgment by the Local Court at Neumarkt was, by decision of tho Reich Supremo Court of 14 July 1942 , annulled by way of a nullity plea, and tho trial was transferred to tho Special Court at Nurnberg.
Q. What was the criticism of the Supreme Reich Court in tho judgment passed by the Neumarkt Local Court?
A. The Reich Supremo Court criticized the fact that tho Local Court at Neumarkt, concerning certain generally known conditions which were connected with war-time conditions, although that had be obvious in the case in question, had not taken such conditions into considerations, and therefore apparently had ignored the fact that the offense with which the defendant had been charged also violated Article IV of the Law against Public Enemies.
For that reason, it was necessary to refer the case to another court so that tho case be examined from that point of view, and if that should be found right, so that Article IV of tho Law Against Public Enemies could be applied if that wore found applicable. Further reasons for the decision which are given are that tho application of Article IV of the Law Against Public Enemies would mean that a considerably higher penalty could be pronounced, and that for that reason the case would have to be tried again.
THE PRESIDENT: May I ask a question. Does either tho prosecution or the defense propose to put in the Lopata file?
MR. WOOLEYHAN: The have, Your Honor.
THE PRESIDENT: All of it?
MR. WOOLEYHAN: Yes.
THE PRESIDENT: Tho portion of it that tho witness is using is in evidence?
MR. WOOLEYHAN: Yes, Your Honor.
THE PRESIDENT: It's unnecessary to read from it then.
DR. KOESSL: I have to present some portions which have not yet been presented by tho prosecution.
THE PRESIDENT: Are they in evidence?
DR. KOESSL: Yes, Your Honor. I have collected them in a separate document book.
THE PRESIDENT: Additional documents in tho Lopata case?
DR. KOESSL: Yes, Your Honor.
THE PRESIDENT: Well, the meaning of these documents, if they are now in evidence or are to be put in evidence, would be a matter for argument.
That is your final argument.
DR. KOESSL: Unfortunately, I can't present them now because the English translations haven't been done yet.
THE PRESIDENT: You can offer them later.
MR. WOOLEYHAN: Your Honor, the English translations have been distributed to us. We have them here.
THE PRESIDENT: My point, of course, is very simple and very obvious, and that is, that it is unnecessary to read portions of a case file if it now is or will be in evidence.
BY DR. KOESSL:
Q. To what extent was the Special Court bound by the decision of the Supreme Court?
THE PRESIDENT: The witness covered that question this morning in answer to a question by the present speaker.
BY DR. KOESSL:
Q. Did the Supreme Reich Court order that the Law Against Public Enemies should be applied against a Pole? In Exhibit 224, the witness Groben says that there had been a difference of opinion as to whether the Law Against Public Enemies could be applied against Poles. Please toll us as to whether the Reich Supreme Court ordered the application?
A. Yes, that is quite evident.
Q. Will you have a look at the order which Dorfmueller, who appeared as a witness here on the 12 of August 1942, made.
A He passed the files on to me and asked me to fix a date, after he had received them from the Supreme Reich Court.
Q What criticism could be leveled against that procedure by Dorfmueller?
A He should have submitted an indictment as was demanded by law.
Q Did Public Prosecutor Dorfmueller frequently make such mistakes?
A Yes, he did so quite frequently, but I believe that I have already made detailed statements on this point, and this is one of those instances.
Q And what orders did you give in consequence?
A I refused to set a date for the trial and I made a request that on the basis of the legal point of view which had been evolved by the Supreme Reich Court, the indictment was to be filed and the trial was to be prepared so that the trial could be held without any difficulty.
Q Did Dorfmueller comply with your request?
A Yes. He then filed an indictment on the 18 of August 1342.
Q Would you please take a look at the indictment which Dorfmueller filed. What is the note entered there in handwriting which strikes you?
A I know Dorfmueller's handwriting very well, and that document at the right-hand side at the bottom also shows his initials Do, and there is a remark added in handwriting reading "appointment of a defense counsel by the court." In connection with this form, that application was made.
Q That handwritten note by Dorfmueller: "appointment of a defense counsel by the court," has played a part in the discussion of this case in connection with the question as to who was the first person who considered that a death sentence might be passed. Please also take a look at the copy of the indictment where the sentence for which the prosecutor would ask is mentioned. What changes have been made in the copy?
AA copy of the copy was put to me some time as a document. It differed from this original copy insofar as the words "six years in a more severe penal camp" had not been crossed off, and the words "death sentence" were there--but a long way away from it--and so I had to assume that the words "death sentence" was a note which had been entered by the prosecutor and which he had entered as a result of the session. According to the original note, that was not so. It rather looks as if the original not in the altered part "six years in a more severe penal camp" had been replaced by the words "death sentence." When that alteration was made, cannot be seen from this note, as there is no date entered as to when that alteration is made, and that is against the rule.
Q Dorfmueller has voiced the assumption that the change of mind on the part of the prosecution was due to you. What is it that proves that you had nothing to do with the fact that the prosecution changed its mind about the sentence it was going to ask for?
AAccording to my recollection, Dorfmueller gave as a reason for his opinion, the fact that the files had been submitted to me and together with the indictment which he had filed at my request. He thought that in this case I had certainly studied the files thoroughly and therefore had come to a decision as to want was to be done, because generally speaking I had been a clever person. I did not, in the files, give clear evidence of my intention to impose a more severe penalty. That view is incorrect--for if it is correct--and I believe it is true--that on the 27th of August 1943 when I received the indictment, I arrived at the conclusion that this was a case where the death sentence might be considered, there was no need for me to take a secret way. But according to the quite clear legal provisions of Article--I believe it's Article 32--of the Competency Order, I was under an obligation, without making an application and officially, to appoint a defense counsel for the defendant. But I did not appoint a defense counsel as can be seen from the order of 27 August 1942.