All concepts concerning the public enemy law, especially Article 4, were developed in this opinion, and thus it was quite natural that this sentence in the subsequent time played a decisive role in our judgments.
Q The basic tendency of the testimony regarding the Wendel case is as follows: That in the second trial the death sentence was passed even though no essential new incriminating elements became apparent. What is your comment on this charge?
A The second sentence that we passed after the Reich Supreme Court had nullified the first one has also been submitted to the Tribunal as a document and it shows, without doubt, on the basis of what considerations and facts we made further determinations. The decisive factor, however, is the following, which refutes the tendency of the charge preferred against us. Nullity plea was at that time, as the sentence by the Reich Supreme Court demonstrates, not submitted by the Reich Public Prosecutor because, in his opinion, further cases should be considered under the point of view of a black out case. But, the nullity plea was submitted as follows because in the 5 black out cases which we had assumed to be black out cases already no especially serious offenses existed in our opinion, so that there was no reason for us to examine the facts beyond those five cases. That this did happen nevertheless can be seen by the opinion of the Reich Supreme Court, merely through the fact that the Reich Supreme Court in reviewing the judgment noticed an erroneous description as far as the time element was concerned and from this they concluded that possibly in the case of the first judgment we were not thinking that for exploiting the black out, for example, it was sufficient for the offender to exploit the black out on the way to commit the offense or on the way from the offense. In consideration of this, the Reich Supreme Court then annulled the entire sentence and obviously used that opportunity to lay down the basic considerations which I have already mentioned. But this opinion, too, shows clearly and without doubt especially in the discussions concerning the conception of an especially serious case and its requirements that already five previous cases which we had assumed to be black out cases would have been sufficient.
Naturally, when we had the new trial we were obligated to start the whole proceedings again and discuss all the problems again and in so doing a number of events became apparent which in our opinion on the basis of a new trial were added as further black out crimes. Thus it was not so that in the second trial we used any tricks to create the basis for final death sentence. We did not have any such intentions in any case.
Q. Another case is the Kleinlein-Schaller case. This was introduced as Exhibit 206 and 207. The Kleinlein-Schaller case was referred to in the Mark 1 Exhibit 154, in Exhibit 221-Gross, and in Exhibit 223 - Escher. First of all, witness, the lawyer Escher made the charge that you had addressed a letter to the Prosecution and had called to the attention of the Prosecution another legal qualification of the offense committed by Kleinlein-Schaller. This charge you have answered already in the general statements you made. Do you want to make a specific answer regarding this charge?
A. First of all this is wrong. This letter does not refer to the Kleinlein case.
Q. Of Schaller?
A. The letter referred to Schaller. I have to make no further statements regarding that letter. I have commented on that exhaustively.
Q. The second charge concerns reduced responsibility and evaluation of reduced responsibility during trial. The expert in the Kleinlein case assumed that Kleinlein had full responsibility under criminal law. Nevertheless he considered that the defendant, and I quote: That he recommended in regard to the defendant a more lenient charge. What significance does this recommendation have?
A. In this expert opinion, as well as in all other expert opinions which are of importance, the expert had to give an opinion as to whether medical prerequisites existed under article 51 Section 1 or 2. He assumed the full responsibility under criminal law. Then he solved his problem. Naturally it would happen that experts wrote down some kind of phrase like this one but this did not serve any purpose from our point of view because the law in regard to such a condition knew no basic mitigating circumstances. As the opinion shows we discussed that point of view. I can refer you to that.
Q. The question of Article 51, Section 2, is also touched by the Schegerer, spelled S-c-h-e-g-e-r-e-r, case. The Schegerer case was submitted as Exhibit 164 and it is mentioned also in the Kurt Hoffmann affidavit, Exhibit 234.
Witness, please state first what offenses Schegerer was being charged with? This is stated on page 68.
A. First Schegerer was being charged, as is shown in the passage there, with 4 so-called black-out thefts. This can be seen from a report by the Senior Public Prosecutor in Regensburg who referred this case to the Prosecutor at the Special Court in Nurnberg.
In fact these black out offenses, in addition to the four black out offenses - - -
Q. Were there further offenses such as these offenses?
A. There were in addition 36 recurring thefts. These are in the files.
Q. Who was the first one to get the idea and expressed it that this man might be a dangerous habitual criminal?
A. The Senior Public Prosecutor in Regensburg transferred the files to Nurnberg from this point of view.
Q. Did this Senior Public Prosecutor have anything to do with the special court?
A. He had nothing to do with us. Quite independent decisions were made.
Q. Were all the offenses prosecuted by the Senior Prosecutor?
A. The innumerable offenses which existed out of these only 15 were singled out and the rest were not prosecuted because of the final opinion, the final results they would not have been of importance. That is to say, the Prosecutor acted on the assumption that these 15 offenses which were in the Indictment would be sufficient in order to sentence him as a dangerous habitual criminal under the law 4 September 1941.
Q. In regard to these 15 cases - are the 4 black-out offenses also included among them?
A. Yes, they are.
Q. When and who was thinking of the death penalty for the first time?
A. That is apparent first in the order of 18 December 1941 which the Prosecutor Hoffmann, Kurt Hoffmann, made on the 18 December 1941.
Q. What did he say?
A. In this order he asks for photographs and this happened only if he considered the possibility of the death sentence.
Q. Now, the charge was made in this case that mitigating circumstances existed and that they were disregarded. What ideas do you find expressed in the opinion regarding application of Article 51, section 2? Please describe briefly the basic ideas in regard to application of these mitigating circumstances and of this regulation.
THE PRESIDENT: That opinion is in evidence, is it not?
DR. KOESSL: Yes, it is your Honor.
THE PRESIDENT: And it sets forth the reasons which were adopted by the Tribunal for holding that the circumstances claimed to be mitigating were not sufficient for that purpose. The defendant may state if his opinion is still as it was when it was expressed in the written opinion.
A. What we thought at that time on that case is written down in the written opinion. What I am thinking today on this entire problem I can't say because in that direction I never thought about it any more.
THE PRESIDENT: Well you are satisfied with the reasons which are given in the opinion?
A. I can only say that the opinion which we wrote at that time was in accordance with our opinion at that time.
THE PRESIDENT: That is sufficient.
BY DR. KOESSL:
Q. Was this opinion the general opinion regarding the application of Article 51, Section 2?
A. That was the opinion that prevailed at that time generally, but not only at that time but also the opinion that existed before 1933. In regard to the application of this regulation, that was a prevailing opinion. It can be called a prevailing opinion before 1933.
Q. Did the courts in applying Article 51 or not applying Article 51, Section 2 -- were they ever dominated by influences that were not of a legal nature? Such as being influenced by a theory of extermination--
A. There was no question of that and nobody thought of it. This question was decided by us exclusively with a view to criminal law. Points of view outside of criminal law were not considered by us at all.
Q. Please also state what the attitude of the prosecution was regarding the clemency question.
A. It was against the granting of mercy.
Q. In his attitude regarding the clemency question, did the prosecutor refer to Article 51, Section 2?
A. Yes, he did refer to it, and at the same time to justify his attitude he stated that one had to consider that he refused to consider 51 too.
Q. Now let us go over to the Horn case. The Horn case was mentioned by the witness Markl in Exhibit 154 and in the English transcript on page 3675 to 3683. Furthermore, the witness Gross mentions it in Exhibit 221.
Witness, please state briefly what criminal offense was the basis of the proceedings in this case.
A. It was a repeated theft from an army post office. That happened quite frequently during the war.
Q. According to what regulations was field post theft and embezzlement of field posts judged?
A. According to Article IV of the Public Enemy Law. In addition, there were usually civil service regulations.
Q. Please state in what legal relationship the convicted person Horn was to the German Reichspost. You see that on page 2. He was an active civil servant. He was in the salary group 8. Did that have any particular significance from the point of view of criminal law?
A. That made his offense, from the very beginning, more serious, for embezzlements and thefts in office in Germany already during normal times were sentenced with extraordinarily severe penalties. If now such offenses were described as offenses connected with war time conditions, then for the person concerned this had very unpleasant consequences from the very beginning.
Q. By referring to the files, please state by what means the Reich postal authorities proceeded against these offenses and what steps it took in order to point out the consequences of such criminal offenses.
A. There was a very extensive and thorough warning issued to all persons employed by the post office, especially to the so-called post office experts who usually had been employed on the basis of war time conditions. Everywhere on the walls of the offices the sentences were announced on large posters so that everybody could see all the time what enormous consequences a small theft could bring with it already. It was just like an electrical charge. The warning said: whoever touches this could be sentenced to death.
Q. In what was the special seriousness of these field post thefts -- in what did it lie?
A. Of course, this was not due to the value of the individual field post package, but in the vital connection between the homeland and the front, and of course we were interested in maintaining this without any disturbance. Naturally, the despicability of the offense as such had consequences too.
Q. I show you now the file of the Schlamminger case. (Witness is offered the file.) The Schlamminger case is mentioned in Exhibit 222, the Ostermaier affidavit. In this case, witness, you are being charged with having played up the case from a political point of view, and that during the trial you had called a witness, and that is the clergyman Kempfling - you had attacked him - that you had independently summoned this clergyman even though the prosecution had not called him as a witness. Witness, how did it happen that this clergyman Kempfling was involved in the Schlamminger case at all, and how did it happen that he was summoned as a witness?
A. The trial against Schlamminger was conducted at that time on the basis of a crime against Article 1 of the Law for the Preservation of Peace of 13 October 1933. He had made two attempts by shooting a police official in a bedroom -- and I have mentioned this already before -and of the local group leader. As far as the second offense was concerned, it was necessary that it should be found out whether a political motive guided Schlamminger. That was the issue: did he do the shooting in the apartment or in the bedroom of this local group leader of the Party because, for example, he had any personal conflict with him. If this was the case, the law was not applicable. On the other hand, in order to apply the law as far as the shooting in the bedroom of the constable was concerned, it was not found that there was a political motive required. For that reason, the question that was of extraordinary interest was how it came about at all that Schlamminger committed these offenses. The question was difficult because Schlamminger, in spite of overwhelming evidence, denied that he had committed the offense at all. Therefore, it was impossible to ask him why he acted in that way.
The rumor appeared that somehow through the local clergyman he might have been instigated to commit such a senseless offense. Of course, that point of view was eliminated if one looked at the facts soberly from the very beginning. But then the assumption became stronger that it was possible that Schlamminger, who was a very primitive man, out of a political and religious misinterpretation of the entire situation, was trying to get some kind of satisfaction through the offense.
In connection with this, it was asserted that repeatedly in sermons the clergyman had described the situation and events in such a way that people of the nature of Schlamminger could have been affected by it. For that reason, the clergyman was summoned as a witness -- in order to be reproached somehow in this direction and to that effect.
That I, however, caused the summoning of this witness, I could not determine off-hand by the files, but it is absolutely possible that after a thorough study of the files I considered that it was necessary to call that witness and told the prosecutor to summon that witness. In any case, they were purely technical reasons, and it was admissible and justified under the law. The examination of the witness during the trial then showed, by his own description of the conditions, that he pointed these matters out in his sermons, and he also realized that it was possible that in the case of people of the mental and spiritual structure of Schlamminger such results could easily come about. He realized the mistake he had made.
In any case, it is untrue that unduly or more than necessary I had exposed this man during the session. I did not hear either that after this event he was called to account in any way because of this affair.
Q. In the examination of the witness Kollmer, it was said that the affair of the clergyman was supposed to have been a lecture on politics.
A. I believe I have already answered that question.
Q. You are being charged with a certain bias in this case. Did you in any way treat this witness in a one-sided manner?
A. I could be prejudiced only in the case itself. I examined the witness in the same way as I examined every other witness -- with the aim to find the truth. If I reached the conclusion that he acted wrong and if I told him my opinion, that was a natural thing to do. But I was not biased in regard to this witness.
Q. Were you prejudiced in regard to the entire case?
A. I tried this case in the same way as I tried thousands of other cases too, and this charge of bias which others gathered from the proceedings--that I had expressed my opinion too strongly when I examined defendants and witnesses--recurs all the time. In the final analysis, the reason for it is the manner in which I examined the defendant or witness. In that direction, I followed a principle and a method which was not practiced by others but which was in no way contrary to law.
The law does not say anywhere that the presiding judge, while examining a witness or a defendant during the trial, is not allowed to express his opinion, even in regard to individual questions that are discussed--be they of a factual or legal nature. In regard to every defendant in each case and probably also in regard to the defendant Schlamminger, I studied the evidence material that was submitted, all incriminating and mitigating circumstances, and I submitted them to him and discussed them with him. In so doing,- this was a matter of principle with me, - I did not leave any doubt in the defendant's mind as to the purpose of the question, but I even used to explain to the people why I am asking them, so that the defendant would know the extent of the importance of his answer. I was not interested in ambushing this man by surprising him and putting him into a difficult situation. In discussing my opinion about the significance of such discussion, I did not restrain myself in discussing its importance for the final result.
This method in which the rights of the defendant are safeguarded one-hundred per cent, since he always knew in what situation he found himself, could not be objected to from a legal point of view, because according to the German method of legal procedure, the presiding judge, when examining the defendants and the witnesses, is absolutely free and not bound by any rules of examination.
THE PRESIDENT: I think you have sufficiently answered that question.
BY DR. KOESSL:
Q. Now, in this exhibit you are also being charged with giving passages from sermons which were incorporated in the opinion. Do you still remember whether a sermon delivered by this clergyman had in any way to be touched upon in the opinion?
A. I know, and that is why we summoned this clergyman, that one sermon or several definite sermons were of some importance. But as to what extent we reconstructed these sermons and used them in the case itself, - I have no recollection of that.
Q. Ostermaier, however, maintains that you had worked over the draft of the opinion and that you had charged him that he was lacking every political insight and that he did not realize the serious political significance of the case at all. Please comment briefly.
A. That I read the opinion is certain. I read it again now too. I know my style and Ostermaier's style and I can say with almost absolute certainty that the product that we have before us in its main points is a product written by Ostermaier. It is absolutely untrue and conscious untruth that in connection with that opinion I told Ostermaier of a political judgment--which, perhaps, today he find suitable. This thought never occurred to me at all. There was no reason for it, for in this case itself the political side was the least important.
Q. And now I want to ask you a few supplementary questions. A number of charges about the manner of your examination of defendants and witnesses was stated and objected to. What was the outside form in which you conducted these examination?
A. The outside form was that of a discussion and conference. There was a direct question and answer between the presiding judge and the-
THE PRESIDENT: The witness has told this all before--every word of it.
BY DR. KOESSL:
Q. In general, was the contact of the prosecution and the court, regarding the motion for a sentence, mentioned? When and how was this contact between the prosecution and the court taking place in the case of your special court?
A. That is one of the basic questions which I have not discussed in other connections so far, because it is applicable to all proceedings.
The practice is that the prosecution in Germany is in constant contact with the court regarding certain evaluations of a general nature or evaluations of individual cases. That existed always and it was not objected to or attacked either, and I believe it was generally known. This could be justified on the basis of the entire historical position, and that task of the prosecution, together with the court, to that extent, was a duty of the prosecution. Also the contact regarding the motion for a sentence was, as such, not unusual. This was practiced already also by myself at a time many years before 1933. Later on, this practice, which prevailed especially in Southern Germany, at the beginning of the war was reverted to in order to fight against a certain critical situation of the administration of justice because, frequently, attacks from Party circles and in the Party press were initiated in particular with the fact that, in the court rooms, a certain difference of opinion between the opinion of the prosecutor and of the court had been noticed. This difference of opinion which here and there became apparent, however, did not have as serious a basis as outsiders presumed it did. Perhaps they only exploited that situation because it fitted into the political picture. There was great latitude allowed to the sentence, and everybody, without any political idea, any person could judge a case more seriously and another one less so. But, in order to take away the basis on which the attacks against the administration of justice in general were made, this contact between the prosecution and the court was established as a means that can be used in order, not to let such differences of opinion become apparent to the outside world.
Q: But why was this contact carried out only before the pleas were made for the sentence?
A. The facts which were important in our trials could, as a rule, be judged only as regards the penalty that they deserved after one did not have only some paper documents but the live picture of the whole course of events. In particular, the people who participated in it.
THE PRESIDENT: That's clear. That's clear.
BY DR. KOESSL:
Q: Dorfmueller says once he had an argument with you regarding this contact because of the motion for a sentence. What course did this take? What events were the basis of this?
A: Yes. The reasons stated gave cause to have this discussion shortly before the opinion was announced. Dorfmueller describes this situation so that he says it happened in the chamber of the judges. From this it is apparent that he came to see us for the purpose of this discussion. Regarding this contact, I was of the following opinion and at earlier occasions, even in 1933 when I was a prosecutor I had already practiced this: I characterized the approximate position that the court possibly might assume, but I refused to have any discussion whatsoever with the prosecutor about this situation, especially in the presence of the two other judges because I was of the opinion that this contact could only have the purpose to orient the prosecutor, but that it would have been untenable for example to give the prosecutor the possibility, so to speak, behind the scene to exert any influence whatsoever on the court, and this attitude of mine is interpreted today as though I had ordered the prosecutor what kind of motion he should make. Of course, the prosecutor - and everybody knew this - in his decision of what motion he wanted to make, in the final analysis, was independent.
And in the case of Doefmueller the issue was that he did not at all remonstrate with me against this practice as such, but that I had been informed that Dorfmueller was, on principle, asking for lesser sentences. That, for example, if he wanted to have eight months in a prison he on principle asked for six months and, in that connection, at that time he apparently, in the rapid exchange of the questions and answers, he stated that, after all, he was free to decide. He could make a motion as he liked to. Whereupon, I told him, of course he could do that. Nobody denied that he had the right. The only question was for how long he would do that and that was something that other people had to say something about. This merely meant to say that if he continued to maintain this basic line of policy he would only achieve that he would be transferred to another section in which he could not impose the difficulties that necessarily resulted from his point of view. A political side of this question I didn't have at all for it would have been a very bad misjudgment to say, because a person is lenient, he is not a National Socialist, and because he was severe, he was a National Socialist, because even the best Nazi could have a lenient attitude, whereas an opponent of National Socialism could have a severe attitude. The whole affair did not have any political coloring at that time.
Q: You said that even at the special court in Nurnberg the law against Poles was applied to cases which involved Poles. What provisions were you thinking of?
A: This question was broached repeatedly, but I did not treat it exhaustively because the questions came to me so directly. Perhaps I may say that this penal decree against Poles was, first of all, and primarily created for the territory of Poland and with us in the Reich it was only stated that it was also applicable to Poles.
Many situations, especially those described in Article I, referred to the conditions in the territory of Poland. I do not recall that in my sphere, under my presidency of the court, or in the case of any one of my deputies, such a case in which Article I occurred at all. But I do not want to say by this that this would not have been possible, because my memory is not that good any more, but I can say this, the cases which occurred as a rule in our court, so to speak, almost without exception was the case in which Article III ... I beg your pardon. It was the case of Article II, Section I, first part. That is to say, II, Section I, first part. There it says: "Poles and Jews will be sentenced too if they violate German criminal laws." Furthermore, III was applicable, and now we have Section 2 of Article III. Hers, in the first sentence, it says: "The death sentence will be pronounced where the law provides for it," and the next sentence that follows this one according to which the death sentence can be pronounced also even if the law does not provide for it, but there are certain reasons which make the offense more serious. This second possibility never occurred in our court either. In effect, according to the substantive legal contents, the prosecution and sentencing occurred on the basis of the German criminal law and the provisions which we quoted from the decree against Poles, for our cases, had no substantive legal contents but the decisive thing here was the German laws. That meant the application of the regulations from this decree against Poles.
THE PRESIDENT: How much longer do you anticipate the direct examination of this witness will take?
DR. KOESSL: I believe that I shall need hardly more than fifteen minutes more.
I wanted on this occasion to ask the Tribunal that if a possibility exists that the cross examination could be started only on Monday. I would be very grateful because the witness, due to the long time that the direct examination took, is not feeling very well. I believe that the prosecution would not have any great objections to this.
THE PRESIDENT: The Tribunal will recess after the direct examination has been completed.
With reference to the defendant Barnickel, is there any report to be made to the Tribunal by his attorney?
DR. DOETZER: Your Honor, I have made efforts to contact the defense counsel of the defendant Barnickel, Dr. Tipp. Unfortunately, I was unsuccessful. I then made inquiries of the General Secretary and it was not known that Dr. Barnickel is sick. I took steps to have Dr. Tipp informed about it. He will probably appear after the noon recess and make the formal application.
THE PRESIDENT: He ss directed to appear at 1:30 this afternoon. We will recess until that hour.
(A recess was taken until 1330 hours, 22 August 1947)
AFTERNOON SESSION
THE MARSHAL: The Tribunal is again in session.
DR. TIPP (Defense Counsel for the defendant Barnickel): Mr. President, I am informed that this morning there was a regrettable misunderstanding. Dr. Barnickel, with your permission, was absent yesterday, but he did not have the permission for this morning. I was told in the prison that he was ill. That is not right either. Fortunately, Dr. Barnickel is in the best of health and the case of Barnickel, as soon as the case Rothaug has boon concluded, can be taken up.
THE PRESIDENT: Yes, we received the same information which was in error on the part of some one in the prison, and you desire that the defendant be excused for the period of this morning, do you not?
DR. TIPP: Yes, Your Honor.
THE PRESIDENT: He is excused as of this morning at 9:30. We welcome him here this afternoon.
DR. KOESSL (Defense Counsel for defendant Rothaug): I ask to be permitted to continue and to conclude my examination.
THE PRESIDENT: You may continue.
OSWALD ROTHAUG - Resumed DIRECT EXAMINATION - Continued
BY DR: KOESSL:
Q Do you know of a case, witness, where you did not take a witness under oath because he was either a Pole or a Jew?
A I do not remember any single case of that kind, but I know that from a certain time on, the legal situation was such that Jews and Poles were not permitted to be taken under oath, but in practice, any such case never occurred with me.
Q Do you happen to remember a case in which any one of your deputies had stricken a Pole, who was supposed to be a witness, from the list of witnesses?
A I cannot remember any case of that kind either with any amount of certainty.
Q Do you have knowledge of any case in your court where Article III, Section 2 of the Penal Decree against Poles and Jews had been applied against a Pole?
A I have answered a question in a different connection to the effect that a case of that kind neither occurred when I personally presided nor any one of my deputies.
Q The Poles who were put to work in Germany -, were they sufficiently warned and were all penal provisions made known to them?
A I was interested to find out whether the people, who from abroad, had been brought to Germany to work, and particularly the Poles for whom a different legislation was introduced, were informed about their situation as far as that was concerned and I found out - I believe that I even cleared up that question during a session with a witness - that the people, when they were brought to Germany, were told about their duties, orally and in two languages, and that they particularly were informed about the consequences according to penal law which they would incur if they did not submit to certain regulations. I passed on a suggestion according to which sentences which had been pronounced should be make known in the camps and at the places of work to these people in order to see to it that they were sufficiently warned and should not get into trouble with the very dangerous legal machinery.
Q Were the sentences in fact announced to them?
AAs far as I found out that was the case because we had no interest to get as many cases as possible before us. Our interest was to have as few cases as possible to deal with.
Q What was the point of view which you expounded in the sessions concerning the duties of the German population?
A In all sessions I used the opportunity to preach, time and again, that, of course, the German population meticulously had to perform its duty towards the Poles as far as their food and quartering were concerned, and in all cases where we saw that the German had given cause to a transgression we rejected that.
Q A few more questions.
In the case of the witness Schosser, that is, when he was heard here, mention was made that his defense counsel asked for a slip which a witness had in his hand during the session, a slip with notations made by his wife about the sermon. Could the defense counsel demand that the witness submit that slip of paper in evidence?
A This is not the way it happened, not entirely. The witness also described it somewhat differently. It was the witness Stubenvoll who, in the Schosser case, was heard as a witness. That witness, in his oral statement, pointed out that immediately after the critical sermon he marked down on a slip of paper, whatever his wife told him when she came home from the sermon, but which he did not have with him during the session. Now, during the session, the defense counsel made the motion that that slip of paper should be submitted in evidence. Since this motion was rejected, it was thought that thereby the defense was being limited. But that obviously was not legally tenable since the witness personally appeared during the trial and as what he knew about that occurrence was told by him personally.