BY MR. WOOLEYHAN:
Q. I have only one question further. Dr. Rothaug, Oeschey sent this lette to the Gauleiter. The series of denunciations from Doebig and the local court judges from the various towns were ostensibly Oeschey's because he wrote the letter and he signed it. But in a postscript he says that he copies it from you, with regart to the Doebig matter. Now in view of the fact that the evaluations of Desbig's conduct and the local court judges' conduct in those cases has to be either yours or Oeschey's, I ask you which one of you was it?
A. As I have already stated, you must try and realize the Oeschey received information form outside Pary offices, that is to day, from local group leaders, cell leaders, etc, and that it was Oeschey's job, as Gau Legal Adviser, to deal with those matters. Those are matters which generally before they got to Oeschey had already been dealt with by the Gauleiter, and were only concerned with actually making a report on matters which were already known to the Gau leadership. As concerns this affidavit, as I wanted to tell you before--only you cut me short--I have already said that that affidavit was made on the 2 of June 1943, that is to say, at a time when that report had practically no importace because Doebig had been transferred, I had been transferred, and Emmert was President of the District Court of appeals in Nurnberg. But Thierack, who was the Reich Minister of Justice, committed an indiscretion in so far as he told Emmert about that report which, as I have already stated in part, affected him. The result was that Emmert complained to the Gau leadership in Franconia. He called Holz "Dui." He attacked the person whose signature was under the report, and that was Oeschey.
The matter was embarrassing for Oeschey in so far as Emmert was his President of the District Court of Appeals, and I remember perfectly will that Oeschey discussed the matter with e. I told him that as I had always done it for reasons of friendship and as I would do it again for reasons of friendship, I told him I would assume the responsibility for this matter so that he woul not have any difficulties.
The result was that from that time onwards there was a breach between Emmert and me. But concerning the other matters which play a part in that report--apart from those that efrect Emmert there was no interest in them at the time. That affidavit merely referred to the fact that Oeschey had not examined the facts which I had laid down in writing and simply had used them as if they had been his own. That I have already pointed out. Those are the detaild concerning this question.
Q. Were the opinions underlying the denuncations of Doebig and all those local court judges contained in Oeschey's letter to the Gauleiter, Oeschey's
A. The contents of that letter to the Gauleiter--they are not know to me. I didn't read that report. I only read the text which I wrote.
Q. May the Court please, the prosecution offers Exhibit 561 the report in question.
THE PRESIDENT: The report is received in evidence.
MR. WOOLEYHAN: No further questions.
THE PRESIDENT: We will hear a brief redirect examination.
BY JUDGE HARDING:
Q. When you said you took responsibility for this report, I understood you to say that you took responsibility for this report to protect Oeschey, is that correct?
A. The main question was merely concerned with the passage referring to Emmert, nothing else was of any interest to anybody by that time. Oeschey knew that that Emmert passage actual ly had originated with me and consequently he was able to give that affidavit quite honorably.
I siad quite generally that on all point where ther might be difficulties, people might refer to me because I would assume all responsibility. I would have done the same at this trial.
THE PRESIDENT: Will you listen to what Judge Harding asked you and answer it briefly. Your objection that you have been cut off on your answer comes without great force, in view of fact that we are now entering the third week of you examination. Judge, will you repeat you question.
BY JUDGE HARDING:
Q. I ask you if yow agreed to take responsibility for this report to protect Oeschey?
A. Yes.
Q. How much of it did you take responsibility for?
A. In particular, for that passage which referred to Emmert. All other matters were no longer of any importance--all other maters contained in that affidavit.
Q. Did this report includes those other matters. It includes all these other matters. How you say you took responsibility for the report.
A. That is not how I meant my statement at the time, nor did anybody expect me to assume such far reaching responsibility, nor was there any need that I should, assume so much responsibility, because nobody was interested anymore in the other ******. That report was concerned with matters which I, myself, had witnessed. It was an attempt to get rid of me and send me to the East. There were also the matters which had occurred in my organization and which had been discussed in my sphere. The report was also concerned with matters which had not gone through my group bu which had gone through the competent office of the Gau leadership. They were matters of which I had never known and which were dealt with by the Gau leadership.
When that report was compiled, I was asked about the matters which had occurred in my sphere. Beyoned that, all other matters played a role which had gone via the Gau leadership--which were known there--and all those matter were icorporated in that report. So far as matters are concerned which did nor arise in my own sphere, I did not intend to assume any responsibility nor did anybody expect me to assume any responsibility for those matters.
Q. Now Oeschey says that he copied these things from a report of yours. Did he go beyond what you authorized him when he said that? Was that statement true or incorrect?
A. Well, in that connection, it wan not for me to give him any permission to do anything. I knew that other matters were pending with the Gau leadership and that they had been incorporated in the whole report. We probably didn't even discuss that.
Q. Was that statement of Oeschey's that he copied these from a statement you yours, true or incorrect?
A. It is correct as far as the Emmert matter is concerned.
Q. I am speaking not just of the Emmert matter. I an asking you about all of it. Is part of it true of part of it untrue?
A . That statement by Oeschey is not incorrect. That is not the way it was meant. You are misunderstanding it. Part of what Oeschey incorporated in his report he got from me. Another portion did not originate with me; it came straight from his Gau legal office. Those are not matters which he somehow or other brought in, but those are matters which came in him, being a Pary functionary, through the Party office.
Q. He said it came form you. Is that part of the statement true or incorrect?
A. Only is part.
Q. Then part of the statement is not true, is that correct, that he did not get those from you?
A. I wouldn't like to say that it is untrue. I wouldn't like to say by that he has done something dishonorable. That is perhaps badly expressed. He will be able to put that right him-self.
Q. Did you gine him authority to make that statement as to you, that you took responsibility for that?
A. That affidavit was made on the 2nd of June, and I believe that afterwards he informed me about it to acquaint me with the matter, and I agreed without, however, knowing what the taxt of the affidavit was.
Q. But you agreed to eccept responsibility for all of it then, as I understand your testimony, is that correct?
A. No, no, nobody asked me to assume responsibility for the whole matter. All of that was of no importance. None of that report was of any importance by the 2nd of June. That report had been written in December 1942, and in the subsequent period Doebig was heard. The Gauleiter, after he had heard him--and he heard him because we wanted him to do so-then the Gauleiter then said that on account of that oral and written report which Doebig made that he was altogether in agreement with what Doebig had said. Evidently, he was, after all, not the man who intentionally had done anything against the state. He seemed to be one of those people who was not strong enough to cope with the situation. He was then transferred to Leipzig.
Several months passed. I went to Berlin, and in June 1943, that is to say, at the time when that political report had become quite unimportant, Emmert, who heard of it, was upset by that passage and Emmert brought the subject up. And to save Oeschey embarrasment in the matter--and that is quite in accordance with the truth--he said that he copied the thing from me.
But in effect, that only referred to that one passage which in itself referred to Emmert. The rest of that report was so uninteresting to us that we neither expected anybody to assume responsibility or to make any statements.
One must bear in mind the historical background of Oeschey's affidavit. If one does that, one see that the matter is limited to the one passage.
Q. You had a conversation with Oeschey over the telephone in which he said he was making this report, as I understand it, it that correct, and that you agreed to assume responsibility for it?
A. No, no. That report had been written months earlier. It was written on the 18 of December 1942, and the affidavit was deposed on the 2 of June 1943; that is to say, that was six months later, By that time that report had lost its importance.
Q. What was the conversation which you had with Oeschey over the telephone, and when did it take place?
Court No. III, Case No. III.
A. Well, this is the first tine that I hear of this that there was supposed to have been a telephone conversation I know nothing about that telephone conversation. I think what must have happened was that I came to Nurnberg on a visit and we met. I met all former assistants, and it must have been then that Oeschey told me that there had been some developments. Probably that was when I heard of the whole matter. What happened was not that I rang up Nurnberg from Berlin or that he rung me up in Berlin -- that wasn't what happened.
Q. You saw him personally at that time, and when you said you took the responsibility for this, is that correct?
A. I didn't see him in Berlin. It was in Nurnberg. I never saw Oeschey in Berlin. He was in Nurnberg. I used to go to Nurnberg quite frequently because my family was still there.
Q. If you answer my question we could save a lot of time. When did you see Oeschey or when and how did you tell him that you took responsibility for this report?
A. I don't know when it was. I don't know for certain, but it must have been around the 2nd of June 1943; nor do I remember where it was that I told him, but I should think that it must have seen at the Blaue Traube. All I know is that he told me that on account of that report, that is to say with reference to the Emmert passage, there had seen difficulties. He also told me that he had made a statement, that it was an affidavit, that I have heard for the first time today, I suppose he must have told me too what he said in his affidavit, and I said that I agreed. I said, "That is all right." But I should like to emphasize that controversy and that conversation where we settled matters referred only to the passage dealing with Emmert. What Oeschey said in his affidavit, I never saw and I never read it either, and I haven't read it up to now.
Q. So then when Oeschey said that he had obtained this from a written report of yours, that was incorrect, is it, as to a great part of it?
A. His statement was correct when he said that he had taken the Emmert passage from me, and that in my view is all that Oeschey meant to say.
Q. But beyond that, when he said anything about anything except the Emmert passage, his statement was not true, is that right?
A. There are further points which originated with me; for example, the matter concerning my transfer to the East, or the matter concerning the Streicher pictures. Those cases occurred in my sphere. But as I have said before, that affiby Oeschey was not referred to in those matters -- anyhow, not according to what he said to me. The aid of that affidavit was to deal with the Emmert matter only. If it went beyond that in its phrasing, that was not meant to push things on to me with which I had nothing to do.
THE PRESIDENT: I think you have now been given full opportunity, which you desired, to state and to repeat your position. We will recess for 15 minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Redirect examination.
REDIRECT EXAMINATION BY DR. KOESSL:
Q: Witness, did the special court in Nurnberg ever when you were the presiding judge, sentence a Jew on the basis of the law against Poles and Jews?
A: That happened neither when I was the presiding judge, nor when one of my deputies was the presiding judge.
Q: Tell us briefly why, for example in the Katzenberger Case the application of the law against Poles and Jews was not considered?
A: Katzenberger was a German citizen and, as far as I know, had never been to Poland.
THE PRESIDENT: May I get your last answer more clearly in mind? Did I understand you to say that neither you nor any of your deputies tried any Pole with reference to the law against Poles and Jews? I think perhaps I must have misunderstood you.
THE WITNESS: There must have been a misunderstanding. We never convicted a Jew under the law against Poles and Jews.
THE PRESIDENT: I beg your pardon.
JUDGE HARDING: It isn't clear in my mind now. Did you convict Poles under that law?
THE WITNESS: Yes, we discussed that several times, but, as a rule, Poles were punished by the German law which was mandatory under the law against Poles and Jews. That is to say, we convicted them under German law, as directed by the law against Poles and Jews. That is why we said: "Under Provisions II, III and XIV on account of violation of a German law."
The difference was merely that the sentence was not for a prison, but for a punitive camps(Straflager) and, instead of a penitentiary sentence, there was a more severe punitive camp (Verscharftes Straflager) and, in case of the death sentence, it amounted to the same.
BY DR. KOESSL:
Q: In the Grasser Case, you were charged with having convicted the defendant for an offense for which Grasser had not been indicted. Therefore, I ask you, what was the basis of the indictment and what importance had the legal specifications of the prosecution concerning the facts of the case on which the indictment was based?
MR. WOOLEYHAN: Objection, Your Honor. The question is purely repetitious. It was gone completely over in the direct examination and in the cross.
THE PRESIDENT: The matter has been fully covered. If we could rely upon the witness to state very briefly his answer once more, we might be disposed to permit him to do so. What you're asking now is what were the specific facts in the charge, isn't that correct? That's what your're asking him for now?
DR. KOESSL: I wanted to hear about the basis for the indictment because, evidently, the prosecution...
THE PRESIDENT (Interrupting): What do you mean by the basis for it?
DR. KOESSL: What was the extent and what were these contents of the indictment? Was the legal specification of the prosecution contained in the indictment in the sum of a limitation?
MR. WOOLEYHAN: Your Honor, that appears in the face of Exhibit 139.
THE PRESIDENT: Objection sustained.
Case III, Court III.
BY DR. KOESSL:
Q: Witness, tell us why the general public prosecutor in Minich dropped most of the original charges and based the indictment only on part of the original charges?
A: The general public prosecutor in Munich never filed an indictment in that case. This is what happened. With the general prosecutor at Munich there were still another six counts. The general public prosecutor dropped five counts and only one count was left, and that one count was constituted by the remark on the Reichstag fire. Because only that count was left in the view of the public prosecutor at Munich, he assumed, contrary to the original assumption, that it had not been a case of high treason but that it was only a case of offense against the malicious acts law. On that simple factural basis, the matter reached the prosecution at Nurnberg. The defendant had appealed against the arrest warrant. In that connection, the files were submitted to me for the first time. I had a look at them, and I arrived at the conclusion that as long as the arrest warrant issued by the investigating judge was based on high treason, I was not competent to decide about the appeal against the arrest. I did not return the case to the prosecution with the request to prepare the matter again on the previous broad basis, but I returned the files, leaving it at their discretion, as is evident from the files, so change the warrant for arrest to that one count which had remained - the Reichstag fire, and make it come under the law against malicious acts, and that was done. Afterward, however, an indictment was submitted to me which did not refer to Court I, the only one with which I had been dealing until then, but the indictment which was submitted to me contained the whole of the original six counts. That is to say, that actual basis concerning which, when the proceedings began, the investigating judge, as well as the prosecution, the Oberreichsanwalt and the general public prosecutor in Munich, interpreted as high treason.
i.e. a crime. When, shortly before the trial, I had read through the files and thought about them, and when I saw that the indictment was now again based on the old facts, it became certain for me that if those facts were to be proved those facts could, in no way, be dealt with under the malicious acts law. That is the line of thought under which, first of all, I came to think of following Article 6 of the Public Enemy Law. That however, was not a new offense, but the old offense was now considered from a different legal point of view and, therefore, one cannot say that a different offense played a part, but the reason for the difference was the legal name which was given to the offense.
THE PRESIDENT: You have explained enough. In what document did the counts first appear?
THE WITNESS: These six counts appear for the first time in the arrest warrant issued by the investigating judge.
THE PRESIDENT: (Interrupting) That's all I want to know. That's where it first appeared. You've answered the question.
Go ahead, Dr. Koessl.
BY DR. KOESSL:
Q. In the Schlamminger case, the witness Ostermeier talked about the correction of sentence. I ask you, what did your correction of sentences aim at, and what was the importance of such correction made by you?
A. The matter never had the importance of - that is to say, one must here, in order to be able to understand the matter right from the bottom - one must know that after the sentence had been announced at the trial, when it had been read out, the essential reasons were briefly announced in an easily comprehensible language. That opinion which is announced by word of mouth only aims at giving expression to the most essential points, but it is not the intention by that to constitute a basis for the further proceedings. The basis for the further handling of the case by the authorities...
THE PRESIDENT (Interrupting): Just a moment. I think I know what your answer will be. Let me ask you and see if I am correct.
Your answer will be that a brief opinion was given verbally at the trial and, thereafter, a careful opinion, covering more ground, was prepared in writing?
THE WITNESS: Yes, that is right.
THE PRESIDENT: Next question.
THE WITNESS: And naturally prepared written opinion...
THE PRESIDENT: (Interrupting) Ask the next question.
BY DR. DOESSL:
Q. Exhibit 556 has been presented today. That was an affidavit by Dr. Hans Hoffman. From that affidavit several cases were put to you of which you said that you could not remember them properly. Therefore, I will put some of these cases to you again from the affidavit, as far as they are dealt with there, to aid your memory. To start with, a case is dealt with in which a Pole, Piernak, was indicted because he had mixed glass splinters with food for the cow, In that care the witness Hoffman alleges that you had by referring to your allegal knowledge of the situation in general of the Polish workers which you termed a danger induced the associate judges to judge the case to severely, and you had told the associate judges that they understood nothing of such matters. Therefore, I ask you, do you remember when that Piernak case was tried before the special court?
A. Naturally, I don't remember that, nor do I remember where that case was tried.
THE PRESIDENT (Interrupting): You've answered the question. You say you don't remember. Next question.
BY DR. KOESSL:
Q. Do you remember when the first statements - that is to say, the first decisions by the Supreme Reich Court in such cases were issued, and when the first accounts of the Polish danger were published in the legal periodicals?
A. After Poles had come to Germany for work, the lower courts dealt with Polish cases which was a perfectly natural thing.
Then these cases were dealt with by the Supreme Reich Court and, as a rule, they were quashed and they were returned to the lower courts with now points of view applied to them, and I think those legal decisions from the Reich Supreme Court must have started soon after the outbreak of war and the Supreme Reich Court continued issuing opinions concerning the handling of such cases.
Q. Had you already seen such an opinion when you had first to decide on such Polish cases?
A. In all cases, whatever sphere they came from, we would not immediately take the death sentence into consideration, but we let such cases develop.....
THE PRESIDENT (Interrupting): You didn't hear the question, Witness.
BY DR. KOESSL:
Q. Did such fundamental decisions already exist when your court first pronounced the death sentence on a Pole?
A. I don't remember that now.
Q. The affidavit also mentions the Murzyn case. That man Murzyn is stated to have found some detonator such as are used to get out treas roots and yon are alleged to have said that it was evident that the Pole had intended to engage in some kind of sabotage. Do you remember that the Pole, who was tried by your court, was indicted for being in possession of detonator?
A. I remember that case very vaguely, but whether I was the presiding judge - that I cannot say for certain, but the man hadn't found the detonator because that wouldn't have been possible because they were under supervision, but what happened was that he had stolen them and took them away with him, and the explosives in his possession were enough to blow up a railway bridge.
That's what had happened.
Q. Tell us, please, whether the law against Poles threatened a particular punishment for the possession of ammunition and explosives?
A. Yes, yes, that was so, I know that by heart. I don't need to have a look. In the first line the death sentence was threatened there.
Q. The case of Pavula and four others was mentioned. Hoffman says, and he is referring to Rothaug: "He here was basing himself on the brutal point of view that, in such cases, the recover had to be dealt with in the same way as the thief." In that case, clothes are supposed to have been looted from a house which had been damaged in an air raid, and the clothes were sold in a foreign camp to other defendants afterwards. Do you remember a case where, at a Polish camp, clothes were sold which had been stolen from houses which had been damaged in an air raid?
A. I could only give my views on that case if all details are given to me. Nobody can defend himself on such a vague basis. Anyhow, I know nothing about all that.
JUDGE HARDING: I have a question with regard to this case of the Pole who had the explosives. As I understood your direct testimony - or, at least, your previous testimony, you only punished Poles for violation of German law. What German law was this Poles punished for when he had those explosives?
A That comes under the German explosives law. The mere unregistered possession of explosives is a crime. Perhaps I may quote from that explosives law. The law against criminal use of explosives of 9 July 1884. Under that law the mere unregistered possession of explosives is punishable. According to the law against Poles and Jews, there is a special provision under which the possession is punishable and it can in the first time be sentenced by death. He was certainly punished under the law against Poles and Jews. He was certainly sentenced under the law against Poles and Jews, possibly in connection with the German law, nor did I say that such a case where we sentenced under Article 1 was altogether out of the question. I merely said that I can not remember an individual case, and I only know that as a rule we sentenced defendants on the basis of a German law applying provisions 2 and 3 of the law against Poles and Jews.
JUDGE HARDING: You sentenced the Poles under the law against Poles and Jews, I understand it, even where you tried them for an offense under German law, is that right?
A In this case, the legal situation says that the same offense had been violated, under two laws, and that is why we applied the two laws. Anyhow, that is how I assume that it was; but he was certainly also sentenced on the basis of the law against Poles and Jews.
JUDGE HARDING: That provided for the death sentence?
A Yes. Whether we passed the death sentence, I don't know, but it is possible. It may very easily have happened, and if his name is mentioned in that register, that is proof.
BY DR. KOESSL:
Q The Hoffmann affidavit also mentions the Wild case. Hoffmann alleges that the reasons for the judgment had been weak in one point, and that was the point referring to the circulating of those papers. Can you briefly explain where in the Wild files which was also discussed when the witness Fritsche was examined, the spreading of contents of foreign broadcasts was seen?
What constituted that?
A The account which was given by Hoffmann who evidently took part in that trial - perhaps he wrote the judgment - anyhow, it is a fact that at that time Hoffmann was a hundred percent in favor of the case. What he told us here, that does not constitute any facts from which one could establish anything. And I have no other material. I once saw the indictment, but as to the facts that were established at the trial on the basis of the evidence, that I don't remember. You would have to show the judgment to me, and then I could tell you.
THE PRESIDENT: The witness says he doesn't remember. Another question.
Q Hoffmann also mentions the Kreisle case. In that case, the defendant shared his sandwich with a prisoner of war. Hoffmann says that humane action was the reason for the sentencing of the defendant to the penitentiary for one year and four months. Can you remember what were the facts on which the Kreisle case was based?
AAll I know is that the Kreisle case was quite different and a much more serious offense than it would be according to Hoffmann's description. His account is of the same type that all of them like to adopt, but when one comes to look at the files, one finds that the facts were quite different. It is quite impossible that the man because out of pity for a prisoner he gave some of his sandwich to the prisoner, he was sentenced to one year and four months. Such a thing couldn't have happened with us.
Q Concerning the Schosser case, the prosecutor again reverted to the point as to who instituted the second proceedings against Schosser, and he asked you whether you were of the opinion that public opinion was upset when it had taken you 13 months to find out that Schosser had undermined public opinion. I ask you, therefore, when were you -- or, just a moment, I am taking that back. Who instituted the second proceedings against Schosser, that is the case of the sermon?
A The sermon case was taken up outside our sphere of competence and without our knowing about it, and, to begin with, concerned matters which occurred inside the prosecution, as I pointed out, it was instituted by the public prosecutor who dealt with the matter of the funeral. The Ortsgruppenleiter had been asked to give a political evaluation, and in that evaluation the matter of the sermon was mentioned. And the prosecutor used that to go into the matter of the sermon.
Q Before that, you did not deal with the case, did you?
A I dealt with it for the first time when the investigations had been completed and the prosecutor had asked me to consider an arrest warrant, which I had to issue, because the legal prerequisites were there. Then, the case was tried, and the outcome is as you know. I, at any rate, displayed a minimum of initiative in this case.
Q The prosecutor also asked why the Kreisleiter in Amberg applied to the prosecution in Nurnberg and not to the prosecution in Amberg. Can you tell us briefly?
A I have already answered that briefly, and I don't believe it is necessary for me to do so again.
Q The prosecutor also alleged that Ferber released Schosser, after the application had been made by the prosecution under Article 126 of the penal code of procedure. Please, comment briefly.
A Considering the fact that the application had been made under Article 126 of the penal code of procedure, Ferber had to admit it for it was binding for him. He said so, too, by expressly referring to Article 126. I stated that this morning.
Q The prosecutor also asked you as to how it happened that you could still maintain that you yourself could not institute proceedings, as after all under Article 125 of the penal code of procedure, you could have been able to issue an arrest warrant. Please comment briefly because the crucial point was not brought out properly.
A The issuance of an arrest warrant by a judge does not mean that criminal proceedings are instituted, but in that case penal proceedings have already been instituted. In such cases, the judge without having received an application from the prosecutor can issue an arrest warrant. I believe that is sufficient.
Q Concerning the case of Baron von Oppenheim, you said that you had not dealt with the confiscation of Jewish property, but that you had dealt with the matter from quite a different angle, when you first dealt with the matter. Now, I ask you what was your task when you were instructed to deal with the Oppenheim case?
A I will give you a very brief account of the development and that will explain the matter. It must have been in about March 1945 when I went on a trip to deal with the Treuter case in Bayreuth which has been already mentioned here. On the same day when I started on my trip one of the experts told me that a case with which I had been in contact before, the Oppenheim case which had occurred somewhere near Landshut, seemed very weak to him, and that he was under the impression that things didn't look too good there. I didn't have time to study the case, and I put the files in my suitcase. I told the expert immediately to make a report to the Oberreichsanwalt and to send me a telegram to Bayreuth to let me know whether the Chief Reich Prosecutor wanted me to make investigations on the spot in order to gain a personal impression of the people concerned. The Baron von Oppenheim who had been arrested by the local court at Landshut was supposed to have made a number of remarks to the manager of the estate. The manager himself had been having arguments with Baron von Oppenheim, and besides, Baron von Oppenheim's farms had been sold to the Reich Colonial League; and in the meantime the contract had been contested for some reason or other.
At any rate, the matter was a very complicated one from the criminal point of view, and also very complicated from the angle of civil law, and from the point of view of judging the criminal aspect, there wer all sorts of possible ways of doing it.