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.
THE PRESIDENT: Just a moment, please. The time has arrived for our recess. The Tribunal has had a report concerning the facts relative to the absence of the defendant Rothenberger, and the Tribunal requests of the prosecution that tomorrow morning at 0930, the prosecution produce some evidence, by the presentation of which the record may be made clear, as to the facts of the absence of the defendant Rothenberger.
We will recess until tomorrow morning at 9:30.
(The hearing adjourned until 26 August, 1947, at 0930 hours.)
Official transcript of American Military Tribunal III in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 26 August 1947, 0930-1630. The Honorable James T. Brand, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III. Military Tribunal III is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of the defendant Curt Rothenberger, who is absent.
MR. WOOLEYHAN: The Prosecution calls Captain Martin.
ROY A. MARTIN, a witness, took the stand and testified as follows:
BY JUDGE HARDING:
Raise your right hand and repeat after me the following oath: I swear that the evidence I shall give shall be the truth, the whole truth and nothing but the truth, so help me God.
(The witness repeated the oath.)
DIRECT EXAMINATION BY MR. WOOLEYHAN:
Q Will you please state your name, your rank, and your present official duty?
A Roy A. Martin, Captain, Medical Officer, assigned to the Justice Prison.
Q When did you last examine the prisoner and defendant Curt Rothenberger?
A Well, I examined him at the start of the trial but I have seen him several times since, but not for physical examination.
Q. Well, Captain, can you offer any explanation, insofar as your professional or other knowledge may extend, as to why the defendant an prisoner Curt Rothenberger cannot be present in this courtroom?
A. He received a self-inflicted injury to the left wrist at approximately one o'clock Sunday morning.
THE PRESIDENT: You said a self-inflicted injury?
A. Yes, sir.
Q. In your opinion how serious is this self-inflicted injury, and how long do you estimate it will be before the prisoner and defendant Rothenberger can be restored to health sufficient for his attendance here?
A. The main artery which supplies the left hand was severed completely; however, the injury is very minor, and he can return to court in approximately one week.
Q. In approximately one week?
A. Yes, sir.
Q. Are there any special security measures that you would advise to prevent this occurrence happening again?
A. Well, it is usual in such cases to put two men in a cell, and in such a case where a man is depressed or where he has attempted to inflict injury on himself.
MR. WOOLEYHAN: No further questions.
THE PRESIDENT: I assume that the security measures arc measures to be taken not by the Tribunal but by the prison authorities; is that not correct?
MR. WOOLEYHAN: Captain, so far as your knowledge of prison routine extends, will the prison authorities take care of proper security measures, or does it require an order from the Court?
A. That matter will be taken care of -
MR. WOOLEYHAN: By the prison?
A. By the prison.
THE PRESIDENT: Dr. Wandschneider, do you have any cross examination?
DR. WANDSCHNEID R: No.
THE PRESIDENT: The witness is excused. Thank you, Doctor. You may proceed with the re-direct examination of the witness Rothaug.
DR. WANDSCHNEIDER: Your Honor, may I make one request. I should like to use the earliest opportunity to talk to the defendant Rothenberger because naturally I am interested in comforting him from a psychological point of view and exercise some influence on him in that direction. If the Court would be kind enough to give a recommendation to the prison authorities, I would be very grateful.
THE PRESIDENT: Mr. Wooleyhan, subject to such security measures as the prison authorities deem advisable, we know of no objection to Dr. Wandschneider's talking with his client. Have you any objections to offer?
MR. WOOLEYHAN: No, Your Honor.
DR. WANDSCHNEIDER: Thank you, Your Honor.
THE PRESIDENT: Dr. Wandschneider, you understand, of course, that there is no right on the part of the defendant to request or demand consideration by reason of injuries inflicted by his own fault, and that the case will proceed against him. That does not mean that we may not be able to give to you, his counsel, some convenience and accommodation that seems proper, but the Tribunal wished it definitely understood that no rights can accrue to the defendant Rothenberger by reason of his wrongful act in the matter of continuing of the trial.
DR. WANDSCHNEIDER: Yes, I realize that. I only made this request in order to facilitate the defense.
THE PRESIDENT: Yes. We have no objection.
DR. WANDSCHNEIDER: Thank you, Your Honor.
OSWALD ROTHAUG --Resumed RE-DIRECT EXAMINATION (Continued) BY DR. KOESSL: (Attorney for the Defendant Rothaug) May I continue with my re-direct examination?
THE PRESIDENT: Proceed.
Q. Witness, in Exhibit 560, the Ankenbrand exhibit, it was stated that you had spoken of the German crazyness for objectivity; what did you mean by that expression?
A. That remark referred to the mishandling which in my opinion Groben applied as the lap scenes. He did not judge those scenes the way one usually regards living human beings. As far as my own view was concerned, his opinion lacked reality; otherwise, he would hardly have allowed that woman to commit perjury.
Q. Do you remember what Groben's statement was, the statement he made on that piece of paper after Katzenberger had appealed against the arrest warrant; that piece of paper wkich he sent to the files of the prosecution?
A. I remember that perfectly well; I think more or loss literally that statement said "I intend to revoke the arrest warrant if the prosecution can give no further reason why that warrant was issued."
Q. That statement by Groben in effect did remain with the files; is that correct?
A. Yes, yes.
Q. Was there anybody at the court, the prosecution, or the defense who attached any importance to that statement? Did anybody at any time make any reference to the fact that at some time the investigating judge, Groben, himself, harbored doubts about the reasons for that warrant?
A. The statement was outside the actual problems of the proceedings.
THE PRESIDENT: The question is: Did any one attach any importance to that statement. Did any one attach any importance to that statement. Answer the question; answer the question.
Q. You have been told to answer the question whether anybody referred to it -
A. Nobody ever referred to it at any time.
THE PRESIDENT: Ask your next question.
Q. In Exhibit 558, mention is made of the fact that you said that Gauleiter Streicher had not given his permission for the witnesses whom the defense counsel wanted to call and who were members of the Nazi Party, Was there any legal provision -
A. There was a law -
Q. Just a minute. Was there any legal provision which made such a permission necessary?
A There was a law which as far as I know has not yet been presented to this Tribunal. According to that law, certain persons who were in some relationship or another to the party, similar to civil servants, could only testify about events which had occurred inside the party if the so-called permit for that testimony had been issued by certain party agencies; that is to say, the judge could only hear such witnesses if a permit had been issued for them to give testimony, but he was not competent himself and he had no opportunity to exert any influence himself on this matter. It was a matter for the two parties concerned, i.e. the prosecutor or the defense counsel to apply for a permit to the agency concerned. I myself did not make any efforts in this respect, either in a positive or in a negative direction, and I may state here that at that time, a few weeks after I had assumed my office at Nurnberg, I had no relations whatsoever with any party agency; I was not even a party member at the time.
THE PRESIDENT: Just a moment. Can you give us a reference to the statute to which you have referred?
A There is a law which deals with that subject. Maybe my defense counsel has it in that red book from which I quoted once before about some matters of organization.
DR. KOESSL: I shall procure that law.
THE PRESIDENT: The Tribunal would like to have it. You may proceed.
Q In this Stegmann case, were there any witnesses who were not heard and who might have contributed materially?
A I have already pointed out that a large number of witnesses were to be introduced, witnesses for whom no permit was required, and that we considered the matter at great length and then rejected those witnesses, and that for legal reasons.
Q Yesterday you road Exhibit 561 -
BY JUDGE HARDING:
Q May I ask a question please. What were the legal reasons of this law you referred to?
A The law concerning that matter of political agencies giving a permit for witnesses to testify, well, I assumed that was a proper law which had been promulgated in the Reichsgesetzblatt.
Q Was that the reason you rejected these witnesses?
A In the case of these witnesses I have just mentioned, there was no need for them to be rejected, but under the law I was not allowed to examine those witnesses. The situation was the same as it would have been in the case of a civil servant who is to appear as a witness; a civil servant in the penal proceedings under the German code of procedure, may only be examined by the judge if his superior authorities have issued a permit for him to testify. If such permit is not submitted to the court, he may not be examined. In that case, the situation has to be judged as it would be without obtaining knowledge of the matters of which the witness may have known.
BY DR. KOESSL:
Q But you did not reply to the main question, witness. Among those witnesses whom you rejected, there was not a witness rejected because the permit had not been issued for him?
A No.
Q There were material reasons?
A Yes. We rejected a motion for evidence which had been made at the trial and we rejected it for factual reasons.
Q Yesterday evening you read Exhibit 561. Please tell us quite briefly what portions of that report were made by you and which did not originate with you?
A The report, the final version of which, such as it was presented at the time, I read for the first tine yesterday evening, is based largely on my report; that is the report which I in my capacity as Gaugruppenwalter, Gau Group Administrator, of the Rechtswahrerbund, the Jurists League, made to the leader of the Jurists' League, with the exception of individual cases mentioned in the report, cases with which I had not dealt.
Q Yesterday in reply to the President's question whether the nullity plea would have been made if the offender had been a German, you said "not even theoretically can I imagine that might have happened, because the main counts can hardly be made to refer to a German." What did you mean when you said that?
A Perhaps the best way for me to make myself clear is if I say this: What I meant to say was the legal situation as such on which we had to base ourselves for our application of the legal provisions, was based on a basically different situation as far as the Poles employed in Germany were concerned, as compared to the German population; that is to say, according to the law, as we had to see it, and according to the decisions by the Supreme Reich Court, eight million Poles working in the fields they constituted an entirely different element in consideration of security from, shall we say, eight million German men; and those dangers from the very outset were kept in view by the law.
That was what I meant to say; that is what I meant to convoy.
THE PRESIDENT: We understood your testimony.
Q My next question is this: You said, however, that the situation of the Pole before the court was the same as that of a German.
A Yes. That was an error which I too felt at the beginning, because I had not gone into that question so intensively, because I always followed the German code of procedure.
Q What were the Poles, for example, allowed -- were they granted a state of self defense?
A That question was broached once and the intention was to charge us with not having granted them self defense, but this is not right, nor, that there had been a so-called short circuit; by that expression I mean to say that the Supreme Reich Court had corrected our verdict because we had incorrectly refused to grant that the Poles self defense. The question actually is a question which was of importance not only with the Poles as such, but it is a question which has been problematic for a long time, in connection with the right to self defense under German law. The decision was made in favor of restricting the right of self defense, and that in all such cases where there was a relation of dependency, that is to say, cases where the civil servant depended upon his superior, as a soldier being dependent upon his officer, the farmhand being dependent upon the master -