Court No, III, Case No, 3.
BY DR. KOESSL:
A The tendency expressed was connected with the following sentence. There were matters which neither peoples or individuals would ever forget. The purpose of discussing these questions was to establish a justification for the measures by the state which was important in that connection and that was the thing which my position as a judge in that state made necessary for me to do.
Q Did you say: "If it would go according to my wishes, the Poles would not be interred on German soil"?
A That also is not the way that passage taken out of its context may make it appear. I developed the idea here that Poles who carry out their duties and behave as they are expected to would not come to any harm and certainly, in that connection, just as in other cases, I pointed out that under all circumstances the obligations which the German population has toward the Poles should be carried out meticulously. In that connection, I probably referred to matters in which one did favors to the Poles and, in that connection, it is possible that I discussed the thought that it wasn't really necessary to permit the Poles to be buried in German cemeteries. In that connection, one has to consider that in this field in Germany there existed a great deal of intolerances based on historical reasons. Thus, for those reasons, in places where cemeteries are segregated by denominations, a Protestant cannot be buried in a Catholic cemetery, nor can a Catholic be buried in a Protestant cemetery.
THE PRESIDENT: Let me ask you a question, please. May I ask you a question, please?
Will you tell us specifically what the defendant in that case said which amounted to an attack upon the principle of the freedom of religion of which you spoke?
THE WITNESS: He mentioned in the sermon that all that was silly talk if one asserted that every man could become happy in his own fashion.
THE PRESIDENT: That would imply that he was defending the prin ciple of freedom of religion against interference by the state, would it not?
THE WITNESS: That wasn't the way this was understood.
BY DR. KOESSL:
Q Did you use the matter of the funeral in your opinion against Schosser?
A The discussion of the matters connected with that funeral affair did not produce anything positive against the defendant. In particular, it could not be established that the defendant knowingly had acted against regulations. That is to say.....
THE PRESIDENT (Interrupting): Just a moment. The witness already answered the question which counsel asked, before the question was asked. You need not go into it again.
DR. KOESSL: Could that matter about the funeral be gone into although the case had been suspended?
THE PRESIDENT: He's answered that question. He needn't answer it again.
BY DR. KOESSL:
Q Schosser says you had attacked him on account of his profession and you had attacked, in fact, the entire clerical profession. What was it about these alleged attacks?
A That just isn't so. As was required for every case, the interrogation was a conversation between myself and the defendant and, in the course of that conversation, I went into the question that people, if they wanted to go to church, wanted to hear about heavenly matters and didn't want to hear anything about politics. If he wanted to deal with questions of that kind, he shouldn't have become a clergyman, but a politician.
Q In connection with the education of youth, you are supposed to have reproached him that in the house of his parents, he hadn't been educated in the National Socialistic sense.
A That kind of a conversation would have been straight nonsense Court No. III, Case No. 3.because Schosser was born in 1909 and, at that time, there was no such thing as National Socialism.
Consequently, I could not blame him....
THE PRESIDENT (Interrupting): We understand your answer.
BY DR. KOESSL:
Q It is also asserted that you reproached him that the Catholics were saying that Protestants were going right to hell. Quite briefly, please.
A That again was an entirely different thought. I set forth that the German state has two great denominations and many others on the side and can, therefore, be neither Catholic or Protestant but only absolutely neutral. It was, of course, up to him personally, in his clerical field, to speak for the accuracy of his opinion and his faith. If you are of the opinion that all those who are of a different denomination will go to Hell, it is impossible for the state to share that opinion. A.s far as we are concerned, everybody will go right to Heaven.
Q Another question quite briefly. Will you tell us what was said about Rosenberg?
A The name Rosenberg was brought in in the following manner. Schosser himself referred to it because Ms line of defense was that he had not intended to attack the party by his statements but neopaganism and that he particularly intended to turn against Rosenberg with his statements. Thereupon I told him that at any time it was his right to refute the thoughts which Rosenberg developed in his book "Myths of the 20th Century" in his sermons and to prove that they were wrong, only he had to specify what he intended to refute and whom he intended to refute because that, of course, was the most important thing of the trial. He had to exclude any possibility that these things might be carried into the general political field. That was the basis for my thoughts.
Q Under what provisions was Schosser sentenced?
A On the basis of paragraph 130-A of the penal code and paragraph 2 of the Malicious Acts Law, that is to say, according to German law both provisions became applicable; as we would have said technically, there was a sort of a legal connection between the two laws.
Q Would Schosser have been punishable if there hadn't been a Malicious Act Law?
A Of course, on the basis of paragraph 130-A.
Q As far as the facts are concerned had the case Schosser been dealt with leniently or severely?
AAs far as the facts were concerned, it had been dealt with most leniently because the basis of suspicion, the assumption of guilt, was that the entire sermon of the false prophets and the roving wolves in all its structure and tendency was a political attack against the government. Schosser when he was heard here as a. witness more or less admitted that. In our evacuation, however, we went not that far, but we only referred to these two basic attacks.
Q You are alleged to have mentioned the case of a Pole in that trial. The case of a Pole whom you had sentenced the day before and who had made an attempt of suicide; and without mentioning the reason, you said, "how, we are bothered again with him." What do you know about that? - Do you still remember that?
A In connection with the justification alternated to be given on the grave severity which was necessary for reasons of security, I mentioned in connection with that the case which had been tried on the previous day. That is to say, as a reason, and therefore, it is quite impossible that I did not stale what it was all about at the time. It was a clear case of murder, not committed on a German, but on a Pole.
THE PRESIDENT: I don't think we need to go into that case. Do charge was made with reference to it.
BY DR. KOESSL:
Q Ferber mentions in the case against a clergyman which was tried in Cahm that Oeschey was supposed to have admired the manner in which you conducted the trial.
A I still do remember the case. It was also based on a sermon. It also was handled as cautiously and carefully as possible which becomes obvious already from the fact that the clergyman in his final words stated that he came here with great worries, and he was surprised about the liberal way in which he was permitted to explain his point of view, and he was leaving the courtroom with the firm conviction that we only had had the purpose to clarify the case fully. He also knew, he said, that we had to punish him because that was our duty, and he understood that according to the law the consequences which he had to beer were correct. In fact, that case could be conducted on a calm and reasonable basis, and it may have definitely be a pleasure to attend it. That was recognized by my associates, but not only by Oeschey but also by Ferber, if I remember correctly, who attended the session.
I do not understand why these matters today are used against us.
THE PRESIDENT: That was the answer. Go ahead.
BY DR. KOESSL:
Q We come now to the Grasser case. The grasser case is mentioned in Exhibit 139; also in Exhibit l56. Engert affidavit; Exhibit 221, affidavit Gross; Exhibit 237, affidavit Doebig; further in the testimony of Berber on page 1312 and 1412, 1665 to 1744, 1665 up to 1744 in the English transcript; also in Doebig's testimony, English transcript on page 1837 up to page 1887; and the testimony by Gross, English transcript page 2859 up to 2882.
I will hand you now the special court file Grasser, such as I have it hers. Did the Special Court already deal with the Case Crasser when the arrest warrant on 29 November 1941 was issued against Grasser? Look at page 28 and 29 of the file, please.
A Investigations by the Gestapo on 26 November 1941 were completed. On the 29th November 1941, the files were submitted to the investigating magistrate. At that time the Special Court at Nurnberg did not have the least to do with that matter.
Q How did the investigating judge characterize the offense of Grasser?
A The investigating magistrate in the arrest warrant established that a number of statements had been made wherein he saw undermining, Communistic propaganda, and he specified the offense as a crime on the basis of paragraph 83, section 2 of the Penal Code, preparation for high treason.
THE PRESIDENT: Isn't the grasser file in evidence as Exhibit 139?
DR. KOESSL: Yes.
THE PRESIDENT: Don't read from it then, we have read it already and we will read it more.
DR. KOESSL: Not all parts of it are submitted in evidence, Your Honor.
THE PRESIDENT: Use only those portions which have not been introduced in evidence, for the purpose of reading.
DR. KOESSL: Yes.
THE WITNESS: Mr. President, that arrest warrant has not been read.
THE PRESIDENT: If you want to introduce other portions of the document, introduce them as exhibits, and we will attach them to the other documents in the case, which will be much more beneficial to your client than to have him read them now.
THE WITNESS: I didn't really read it, Mr. President.
THE PRESIDENT: You summarized, which is exactly the same thing. That is merely a technical answer that you made.
BY DR. KOESSL:
Q Why did the offices which subsequently had to handle the case view the complex of charges in the Grasser case from a different point of view than the investigating magistrate?
Q Whoever dealt with the case alter the investigating magistrate, did not have a different view of the facts than the investigating magistrate because after the arrest procedure had been completed and the files were forwarded to the prosecution for further handling, the senior public prosecutor submitted the file to the Chief Reich prosecutor because in his opinion the offense appeared as preparation for high treason according to paragraph 83 section 2. He too was of the opinion that that case was on the criminal level, not merely on the level of a misdemeanor which one could have called it if one had considered the case as a so-called malicious offense. The Chief Reich Prosecutor did not evaluate the offense as a malicious offense, but he also had suspicions of a crime connected with high treason and by expressing that point of view he forwarded the files to the general prosecutor at Munich to be prosecuted as a case of preparation of high treason.
Q The witness Engert asserted that the case had been returned to the Special Court in Nurnberg as a malicious acts case.
A. Had the Chief Reich Prosecutor considered it a malicious act case, then, of course, he would have had to return it to the prosecution at Nurnberg, so that the prosecution in Nurnberg could prosecute it as a malicious act case for which it was competent. He did not do that, however, but sent the case to the general public prosecutor.
THE PRESIDENT: We are concerned only with the conduct of one person in connect on with these cases, and that is the defendant Rothaug. We haven't heard a ward about what the defendant has done in connection with that case. The views of some prosecutor as to how it should be tried has nothing to do at all with tie issue "which is before us. This is the end of the second week in which you have been going through this line of interrogation, and it is about time that it ended.
DR. KOESSL: We will be able to finish today, Your Honor.
BY DR. KOESSL:
Q. Why did the general public prosecutor at Munich transfer the case to the Special Court at Nurnberg?
THE PRESIDENT: Why are we concerned with that? We are not concerned with why it was transferred; if it was transferred, then it came to the defendant Rothaug.
BY DR. KOESSL:
Q. When did you had to deal with the case Grasser?
A. I first had to deal with the case Grosser after the indictment was filed with me, based on the legal principle of malicious acts having been committed. The case had one popularity, or rather a surprising element was apparent because me bad to ask oneself if that case had been in the hands of the general public prosecutor in Munich how did it happen to come before the Special Court in Nurnberg now, a court with which the general public prosecutor in Nurnberg had nothing to do with as such.
The reason for that was-
THE PRESIDENT: Just a moment. That is the very matter we were talking about. That is the very water concerning which the Tribunal just addressed counsel. You will be permitted to state whether you had anything to do with transferring it to the Special Court. If you didn't have anything to do with it, then we are unconcerned with the reasons which brought it to your court, and you needn't state them. Now, first, did you have anything to do with the transfer of the case to the Special Court?
A. Mr. President, the fact of that transfer -
THE PRESIDENT: Did. you have anything to do with it?
A. With the transfer itself?
THE PRESIDENT: Yes.
A. I had nothing to do with it, but -
THE PRESIDENT: No A.--but I have no possibility of defending myself if I can't clear up this point because this is the focal point of the whole matter, of the mistake made later in the evaluation.
THE PRESIDENT: All right, go ahead, if you think that is the case, you can elucidate.
BY DR. KOESSL:
Q. What was your first evaluation of the case?
A. First, as in every case which was submitted to me, I fixed the date for the rain trial.
Q. Did you have the impression at that time that this was a crime punishable by death?
A. When I fixed the date for the main trial, one does not look at that details, but one just roughly examines whether what is what and fixes the date -
THE PRESIDENT: Answer the question. Did you think at that time it was the case for death? Did you think at that time that this was a case for death? answer yes or no.
A. No.
THE PRESIDENT: That is sufficient.
BY: DR. KOESSL:
Q. Can you prove that on the basis of the files? Look at page 53, please.
A. From page 53 one can see that in connection with the fixing of the date which I did on the 18 June '42, that on the second of July '42, I did not appoint a defense counsel for the defendant.
THE PRESIDENT: I understand.
Q. When did you arrive at the opinion that possibly paragraph 4 of the public enemy decree had to be applied?
A. On the 30th of June 1242. That can be seen from the order which I made on the same day. I had studied the files most carefully and came to the conclusion which is put under figure one, and which has been submitted as a document.
Q. Have you found that passage? Why did you conclude that possibly paragraph 4 of the public enemy decree would have to be applied whereas the General Public Prosecutor at Munich looked at the case as a malicious act case and therefore had transferred it to Nurnberg?
A. The difference in our opinions was based on the following. The General Public prosecutor in Munich, of the facts which were submitted to the Chief Reich Prosecutor, and were then passed on to him, had discounted about nine-tenths and what remained was just of that one remark, in the opinion of the General Public Prosecutor on Munich, one could only prosecute it or the basis of the delicious Act Law.
Q. The case as it was submitted to you by the Indictment, was that of the same extent as the complex of facts which had been transferred to you by the General Public Prosecutor in Munich to Nurnberg?
A. That was the decisive thing. That one went back nor to the original evaluation of facts in the entire extent which all offices so far had considered the ratters of high treason, and that all these elements were made the basis of the indictment which was filed with me, and that in contrast to the former opinion of the case, it was just specified as a malicious acts case. And upon study and examination of the entire material, I arrived at the conclusion that the facts by far exceeded the requirements for paragraph 2 of the Malicious Acts law. As far as the character of the individual was concerned, the circumstances attending the facts and the offense and the quite apparent purpose, I concluded that the offense in my opinion particularly in consideration of and comparison with other cases which had been dealt with on the basis of the Malicious Acts.
Q. Did the other judges who were sitting with you on that case share your opinion about the legal evaluation of the entire case?
THE PRESIDENT: Just answer yes or no. Ja oder nein.
A. No, there gas no difference of opinion.
Q. Then you should have said yes, according to the question I put to you.
THE PRESIDENT: We understand.
Q. The witnesses Doebig, Ferber, and Gross went on to describe that Doebig had come to the judge's chamber during the deliberation in order to prevent you from applying the public enemy decree on this case.
A. That matter itself can only be understood if one knows the previous history.
Q. Will you please tell us when for the first time the thought appeared of applying a different legal provision than that applied in the opinion of the general public prosecutor in Munich?
A. A different legal specification than that of the general public prosecutor in Munich never became apparent because the general public prosecutor in Munich, as I said before, only referred to about one tenth of the facts -
THE PRESIDENT: You told us that as you said before. Don't repeat it.
A. Whereas a difference only occurred when negotitations with the Ministry started and they dealt briefly with the following: After I had put down my opinion in the files, and had appointed a defense counsel, and thereby, informed every one concerned about the evaluation different from the one in the indictment, Engert, as representative of the general public prosecutor, got in touch with me. We discussed the matter, particularly the point of view and the fact that all details of the case were now taken into consideration and that might lead to a more severe evaluation. Engert definitely shared my opinion and considered it advisable however to inform the Reich Ministry of Justice about it, that is about the fact that this change in the evaluation had come about. He also discussed the matter in the Reich Ministry of Justice, but informed me that the Ministry approved from the legal point of view my changed evaluation, but thought that a severe prison term or penitentiary term might be sufficient. That was what Engert told me, but not in the sense that he approved of this opinion that he was in agreement with the opinion of the Ministry.
There was a telephone call, a telephone conversation, and I said that in a case of that kind we could only take notice of the opinion of the Ministry, particularly because they had not been in possession of tho files at tho Ministry. Ho stated then that he would obtain contact again with the Ministry. Whether he actually got another call through, I don't know. Ac tried the case on the basis of my evaluation of its legal foundations, and from the transcript which is before the Tribunal, one can see that I immediately instructed the defendant about tho possibility of a change in tho legal evaluation in tho sense of paragraph 4 of the public enemy decree. The trial took place. In fact all the evidence which formed the basis of the indictment proved to be correct in tho opinion of the court. Only one question had arisen and that was justified, tho question whether or not tho offense might be characterized as one of undermining military strength.
Q. Will you please state what tho transcript says about the time, that as the moment when the defendant was instructed about that point of view?
A. According to the transcript the information about the fact that possibly his offense could also be judged on tho basis of paragraph 5, Section 1, Figure 1, of the special war time decree, was given to the defendant before the pleas, and in the final plea tho prosecutor took that point of view into consideration in his demand for punishment.
Q. But tho witnesses reported that Doebig had introduced that thought of paragraph 5, that is the undermining of military strength, and that he did that during the deliberations.
A. That is quite impossible because that point of view could not have been taken into consideration in the judgment if it had not been the subject of the trial, but from the examination of the transcript one can see beyond a doubt that that point of view had already been discussed in the trial before the pleas. I also know with absolute certainty that Doebig's appearing was not during the deliberations on the verdict, but during a recess before the instructions of the defendant concerning the change of the legal point of view and in reference to paragraph 5, Section 1, of the special war time decree took place. Therefore the superior did not take part in the deliberations for the judgment. This was the way it actually occurred. During the recess while we were in the judge's chamber, Doebig appeared, who had attended the session as a listener, and we were just about to discuss the point of view of the applicability of the paragraph concerning undermining of military strength among ourselves. He pointed out that there was a recent decision concerning the concept of offenses committed in public. He was certainly not intent on preventing us from arriving at any decision or to influence us in any way about the sentence. He had the desire to put his person and knowledge at our disposal in order to help us in our findings of legal foundation for our decision. The fact itself excited me very much. First, I restrained myself; then, that was no longer possible and I told him the following: Here in this room I have the responsibility. By that I wanted to make it known to him that I could no longer tolerate that he was trying to exert influence in the Question which not he, but we had to decide.
He left the room then. Subsequently I discussed that whole question with my associates, and that whole scene of excitement on my part referred solely to that visit by Doebig. That was the only subject. As for the question of fact of evidence and of law which we had to decide, there was hardly any noticeable debate or discussion.
Q. What were the rather serious points of view which led to the application of paragraph 4 and made it mandatory to apply paragraph 4 and paragraph 5?
THE PRESIDENT: We have before us at this moment the additional statements, the making of which was charged against this defendant, and to which this witness has referred, which ho says ho made it a more serious case. I am sure they arc all tin the exhibit which has already been received in evidence.
A. Our point of view in that entire matter t;as the following: We were of the opinion that that case especially if it was put into a comparison with a normal even a serious case, of a malicious attack, in consideration of the personality, the character of Grosser, that it did not stand any comparison, but we admitted that of course there could be people, there could be offices where a different opinion prevailed. Then they of course had to act according to their conviction. A discussion among us did not occur concerning that question and I did not hear that any such discussion took place at the level of the general public prosecutor or the senior public prosecutor.
Q. Were you informed about the opinion the general public prosecutor voiced in the clemency question?
A. I did not receive any information about that, but I never hoard that he made any statements against it.
Q. Now, we want to leave that case.
THE PRESIDENT: The Tribunal mill recess for fifteen minutes in just a moment, gentlemen. One matter: Reference was made this morning to the absence of the defendant Paul Barnickel. We have received a report to the effect that he is indisposed, and that the prison physician has excused him for a period which has not been specified. Is any Defense Counsel authorized to speak for the defendant Barnickel at the moment? He will be excused from attendance by the Tribunal today only if his counsel appears and makes the suitable request which should have been made this morning. Otherwise, he will not be excused and will be brought to court.
We will expect, in the interest of the defendant himself, that his counsel, or some one deputized to do so, will appear and mill make representations to us and request that he may be excused -- in which event we will excuse him.
We will now recess.
(A recess was taken.)
THE MARSHAL: Persons in the courtroom, will please find their seats.
The Tribunal is again in session.
THE PRESIDENT: In order that the record may be complete we will read the order in the case Engert, which order was made verbally in open court and which should now appear in the transcript of proceedings.
Without reading the title, the order which the Court has prepared and which has been executed by all members of the Court, is as follows:
Now at this time the above entitled matter coming on for hearing upon the motion of Prosecution by Mr. Charles M. LaFollette, Deputy Chief of Counsel, for an order declaring mistrial as to the defendant Karl Engert, and counsel for the defendant Engert having joined in said motion, and the Tribunal having heard the testimony of two expert medical witnesses concerning the present physical condition of the defendant Engert, and it appearing to the Tribunal that during the entire period of the trial the defendant Engert has been present in court not to exceed three days and that his absence has been due to illness which has become chronic, and that during the entire period of the trial, with the exception of the three days, the defendant Engert has been a patient in the hospital, and it further appearing to the Tribunal that the defendant Engert is still unable and will continue to be unable to attend the trial or to fairly present his defense, and it further appearing that article IV, paragraph d of Ordnance 7 provides that every defendant shall be entitled to be present at his trial except that the defendant may be proceeded against during temporary absences if in the opinion of the Tribunal the defendant's interest will not thereby be impaired, and the Tribunal being of the opinion that the absence of the defendant Engert has exceeded the limits of temporary absence and that his interests would be impaired if the case were to be continued against him. Now, THEREFORE, it is ordered and adjudged that a mistrial be and it is declared hereby in the case of the defendant Engert, and that the case of the defendant Engert be severed from the case of the other defendants herein, and that if and when the defendant Engert becomes able to be tried that his trial be then commenced upon the Indictment herein.
Signed:
James B. Brandt Mallory B. Blair Justin W. Harding, Judges Mr. Secretary.
You may proceed.
BY DR. KOESSL:
Q May I proceed please? We now shall discuss the Wendel case which was submitted as Exhibit 245. It is mentioned in Exhibit 245.
THE PRESIDENT: The name of the defendant again, please.
DR. KOESSL: Wendel. I shall spell it, W-e-n-d-e-l. Submitted as Exhibit 245 and mentioned in Exhibit 154. That is the Markl affidavit. In Exhibit 156, the Engert affidavit, and in Exhibit 222, the Ostermaier affidavit, and Exhibit 232, Kern.
Witness, the witness Ferber asserted that the Wendel case had become an example in order to encourage the associate judges to pronounce severe judgments. In what respect had the Wendel case become an example?
A The Wendel case as far as I remember was the first case which was tried on the basis of nullity plea of the Chief Reich Prosecutor which had been submitted against the defendant, the first one to be tried by the Reich Supreme Court. The Reich Supreme Court wrote an extensive opinion and in this judgment stated its position on a number of basic questions for the first time. That is, as far as our sphere is concerned. Thus, the judgment was of basic importance. The penalty and sentence pronounced at that time, which was a penitentiary sentence was not approved by the Reich Supreme Court. Rather, the Reich Supreme Court was of the opinion that everything spoke in favor of the death sentence.