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.
So as to throw light on the facts, my chief - during the proceedings at Bayreuth - sent me a telegram instructing me to go to that district as quickly as possible and institute investigations. Now I did meet Oppenheim, that is quite right, while I was about to go to Landshut, in the evening, I suddenly found that I couldn't get there because in the afternoon the station.....
Q Will you please be brief.
A But this is important because in the afternoon there had been an airraid on the station.
THE PRESIDENT: You are not being brief. Tell us the essential facts. We don't need to know why you couldn't do something at a certain time. Let's be brief about it.
A That was the very reason why I went to the prison. I have been changed with having gone to the prison and having had Oppenheim brought before me so I could abuse him, etc.
THE PRESIDENT: Did you go to the prison?
A Yes.
THE PRESIDENT: What happened when you went there?
A I had to have my clothes cleaned because when I had been walking through those craters all around the station in Landshut, I got dirty; and as I was there anyhow, I asked for Oppenheim to be brought in and I discussed the charges against him with him. Oppenheim told me what the contacts were. He told me that he had owned many horses which he had sold to the Waffen-SS, and that because of that he had been allowed to buy the estate during the war, as an exception, and then he had an argument with the manager; and now they wanted to take away the estate from him. I gained the impression that estate was at the back of all the serious charges against him, which in fact were critical, and I asked him why he was trying to do that and why he just didn't let matters go. All that had nothing to do with Aryanization because Oppenheim had a document which was shown to me, according to which in consideration of the fact that he was of mixed descent - he was a Jew, about 1/6 or 1/8, I don't know - no difficulties were to arise in spite of that.
Q I think that is enough.
A To get to where the investigations were made, I had to get in touch with the Kreis Leadership because that was the only way for me to get a car. That place was three hours away from Landshut.
Q Only the essentials, please.
AAnd when I had made inquiries what the whole thing was about, I was told by one person that people were surprised that Oppenheim hadn't been shot yet, and that any proceedings were being instituted against him at all; whereas on the other hand, the Kreisleiter told me that the first incriminating statement had been made by the Ortsgruppenleiter who was a very difficult person and was of dubious character.
And one had to be very cautious and not believe him too easily. And then I went to Ast, that is where the estate was.
QQuite briefly, please.
A I interrogated the people - I can't be any more brief than thisI interrogated the people. I also interrogated Oppenheim's wife. She herself was seriously incriminated. I told here that I would not institute any proceedings against her, but she had to promise me that on no account she would engage in any tricks, and she promised me. I made inquiries whether there was not perhaps any chance that they might settle that affair with the estate because I always felt that fact that the contract had been contested somehow or other constituted the crucial point of the charges. I interrogated the people very thoroughly, and I mainly interrogated them to find out secondary matters which had nothing to do with the criminal case as such, but which played some part or other in it, according to their ideas. I did so to get some basis to find out to what extent those prosecution witnesses were credible; and the most incredible things were told me, too, and I laid them down.
Q Was the total outcome favorable to Oppenheim?
A I then went to Berlin and I made a report on the case, and I pointed out that the case was extremely doubtful and therefore I instituted further investigations in Bavaria. I think it was somewhere near Toelz, and I think it was the competent police officials that conducted these investigations. The aim of the investigations was to establish that the witnesses for the prosecution were not reliable witnesses. That is what actually happened, and those were the motives which guided me in the Oppenheim case.
Q In Exhibit 558 -
A But this is what I'd like to point out. About those terms of abuse which I am supposed to have used in my conversation with Oppenheim at the prison, all that is quite untrue and I believe that the prison official who was present would be able to refute that, and I think those remarks refute themselves; such things do not exist at all.
THE PRESIDENT: The case Oppenheim is now as clear as mud. We will pass on to something else.
BY DR. KOESSL:
Q In Exhibit 558 Fritz Ludwig says that in the case Stegmann he had difficulties in getting witnesses and having them examined. He alleges that you had rejected all your motions for evidence, and you had said that the Gauleiter Streicher had not given his consent for testimony to be given by the witnesses for which he had asked.
THE PRESIDENT: Let me ask you, didn't you give a complete answer to that charge before when you were examined concerning it? I think you fully explained your position.
A Yes, yes, I believe I have given a complete explanation.
BY DR. KOESSL:
Q Was there an appeal against that sentence?
A Reviewing of the case was asked for.
Q And which court decided upon?
A No court made a decision. When the defense counsel had received the written opinion and had communicated them to his client and had discussed the matter with a particularly experienced colleague in all detail, the application for review was being withdraw as being quite hopeless.
Q And now coming to the Deeg case, I ask you was the judgment sufficient to deprive Deeg of all his functions and to remove him from office?
A In the Deeg case, my memory went wrong concerning two points. One thing is right, however, that at the trial and at the judges' conference I tried to have the defendant sentenced for fraud and for an offense under the Public Enemy law. I didn't succeed in doing that, although before the trial, I had corresponded with Engert in connection with the application of the law against Public Enemies in order to determine the point of view. And from the thought that I was not able to prevail concerning the application of the most serious legal point of view I believed that in passing the sentence, the others had been accommodating. However, that wasn't the case, either, or to put it better, it wouldn't have been the case, if we had sentenced for simple fraud; but he was only sentenced for an offense against the law concerning collections and in that case the prison term of 4 months abd a fine of 10.000 marks was pretty high. That explains the error concerning the term of one year.
The second point where my memory fails me was concerning whether the public was admitted or not, but the public was not excluded because of the Stuermer, but as I made certain today, because those machinations were somehow bound up with the Red Cross, and, therefore, we were particularly interested -
THE PRESIDENT: You explained that before; we have had the same explanation before.
Q: In connection with the treatment of high treason cases, the question has been brought up whether Austria was considered to be a foreign country. I ask you what fact was it that made you abandon the last doubt that Austria in 1938 had become a part of the German Reich?
MR. WOOLEYHAN: If your Honors please, I object to that question on the grounds that the witness' opinion on that point is immaterial.
DR. KOESSL: Your Honor, the question as to whether Austria was united with the Reich legally, that fact is connected with a question that was brought up here by the prosecution.
THE PRESIDENT: It was the legal opinion of German jurists that Austria became for all purposes a part of the Reich after the Anschluss; that is your opinion also, is it not?
A: Naturally.
THE PRESIDENT: Whether that is the opinion of the Tribunal is a matter on which we can pronounce later.
A: As far as I was concerned, Austria was part of the German Reich.
THE PRESIDENT: That is sufficiently answered.
A: There was no question. What wise could it have been for a German?
Q: In the Haubeck case the evidence was not quite clear according to what the prosecution says. Do you remember whether Heubeck's son at the first trial maintained the statements which he had spread?
A: I remember that. The prosecution has made a little mistake here. It is right that this investigation was made with the commandants at Dachau and Mauthausen -investigations which were ordered by the prosecution -- but according to the record it is quite wrong to say that the reports which are contained in the files were read out at the trial, and used as a basis for the record. It would have been possible and perhaps that is what happened in fact: that those reports were put to the defendant and the defendant was asked to comment on them, but that was not decisive at that time. Whereas it is a fact that the son at the first trial, when not I but Oeschey was the presiding judge, quite voluntarily admitted that he had been telling fairy tales and spreading rumors. That was pointed out in the earlier judgment, and I as can be seen from the record taken down at the case where I presided -- read out passages from the earlier judgment -- you can see that from the record -- and that is how the statements made in the former judgment were invorporated in my proceedings, and that shows that according to German law, the legal basis was completely unexceptionable for building up the sentence, handed down in the second case. It is not true, therefore, that we mishandled the case at all. I believe that the prosecution was misinformed here. However, the proceeding was quite above reproach.
Q: The prosecution in the Lopata case has maintained that at the first trial at Neumarkt, Lopata had been sentenced to two years imprisonment, just like any other German. Can you remember what provision applied, and can you remember the sentence meted out to Lopata at Neumarkt?
A If I remember correct Lopata was sentenced to a penal camp.
Q Under what statute was he sentenced?
AAccording to the law against Poles and Jews. In connection with what other offenses I can't remember now, but I assume that it was assault and battery.
Q The prosecution has asked you why you considered yourself tied and bound by the decision of the Reich Supreme Court, as after all you had rejected the authority of the Ministry of Justice, and I'm handing you the penal code of procedure -
MR. WOOLEYHAN: I object, Your Honor
THE PRESIDENT: I think the witness explained that to the satisfaction of the Tribunal before. We also see a very material distinction between the orders of the Reich Ministry of Justice and the decision of the Supreme Court.
DR. KOESSL: Yes, Your Honor.
Q The prosecutor when discussing the removal of the Groben statement and transfer or the suggestion of transferring that statement to the working files of the prosecution, asked you whether in your opinion the attitude of the investigating judge might not have had some influence when it came to dealing with the clemency problem, if there had been a remark in the files to the effect that there had not been sufficient cause for keeping the defendant in detention.
A I can only say this: The investigating judge is the lowest and most insignificant judge at the local court in a big city. Employment there is according to the essential nature is not tantamount to work as a judge. It is more or less administrative employment. That is the reason why after he had been an investigating judge for something like two or three years Groben tried to get a post with me.
The opinion of the investigating judge, as such, certainly was not of any importance, and for somebody or another being of a different opinion than that being laid down in the files, that is an every day occurrence, and for the authorities which have to make a decision, that is to say ourselves, or the agencies at the Ministry of Justice, it is not decisive in any way if an investigating judge suddenly says that he intends to revoke an arrest warrant. Everybody can see immediately that, for example in this case, he quite misunderstood the facts concerning the sexual intercourse; that was there was ot it; and my only interest was to do him a friendly service, so that the fact that he had mishandled the case would not become known, for he had mishandled the case, a situation
THE PRESIDENT: You have answered that question sufficiently.
Q The fact that a file is removed from the main files and added to the interoffice files, can that constitute a suppression of documents under the penal code?
A Naturally it can't, for the removal of a document from one file to another to which one expects that such transfers are admissible and here the whole thing only gained exaggerated importance -- is purely an every day occurrence; it is not a suppression of documents. One could talk of suppressing documents if one had removed a file and had destroyed it, but that isn't what we did, and what mattered was that I added that Groben himself was to tell us whether he agreed or not and then Groben told us he wouldn't do it, and so the matter was settled for me. After all those things could have had a decisive influence on me; that is perfectly ridiculous to say such things.
Q The prosecutor with reference to your relations with Doebig made it appear when he asked you a question - a question as to whether you had ever tried to denounce Doebig's conduct as a judge in reports to the Gauleiter. Did Doebig display any - was this a case of conduct of a judge?
MR. WOOLEYHAN: I object to that question, Your Honor. In the first place, I didn't understand it. I would like it repeated.
THE PRESIDENT: Will you restate your question, please, for the benefit of the Prosecution?
Q Was the work Doebig was doing in those days, was that the function of a judge?
A In certain fields Doebig could exercise functions of a judge. I believe, for example, in disciplinary cases, he exercised the functions of a judge, but that side of his profession was not affected by all these matters which have come up today. They only affected him in his work as an administrative official of the judiciary. Moreover, he was a member of the Rechtswahrerbund, the Jurists' League, and he was a party member, and that explains what happened, for as a member of those organizations he was subject to their statutes, and, therefore, he cannot complain if under certain circumstances there are certain reactions.
Q Please tell us briefly who was it who criticized Doebig. I am referring to the criticism in connection with which you were not the denouncer, nor, could you have been the critic yourself. I am referring to the cases where a judge was criticized, and I am thinking of a judge in Fuerth. I am thinking of the judge involved in that tenancy case. Who was it who criticized those cases? And made reports on them?
A That was neither myself nor was it Oeschey, but all those cases were dealt with by other agencies. They set the ball rolling; they made reports to the Gau Leadership, and then the matter was passed on to Oeschey, and if he thought it necessary, he informed me, too, and then in accordance with out position, he at the Gau Leadership and I at the Lawyers' League, we dealt with that business as we had to. The only point that originated from me was that attempt to get rid of me and send me to the east because that concerned me.