One or the other difficulty or a particularly delicate question of law would be pointed to, and in this or that case perhaps the matter of sentence was also touched upon, but on no occasion was any definite opinion laid down or pressed upon, the associates by me. The letter for the simple reason because I simply didn't have one myself, nor could I find at any time that by these brief conversations an associate judge would be less prejudiced towards the trial.
Q. Did you ever, during the main trial, tell the defendant while he was being interrogated or before he was being interrogated what sentence he could expect, particularly with words like: "We shall put your head before your feet"?
A. That I never did. It was my custome towards the end of the interrogation of a defendant, if he had confessed, which cleared up the question of guilt, of course, to remind him of the illegality of what he had done, or told him about the worthlessness of his personality. For instance, I told a person who had been guilty of looting whether he had not seen in the newspapers or on the posters that looters could expect the death penalty and whether that had not impressed him. Or a habitual criminal I would tell, in view of his heavy criminal record, he had to expect in the case of recurrent act to be treated as a habitual criminal and that the patience of the state with people of bis type would be exhausted. In all cases these things were put to them within the scope of the trial and were no surprise to the defendant concerned, as he could have seen from the indictment what legal provisions would be invoked for the judgment of his acts and what penalties were being announced. This did not mean anticipating the verdicts, just as it did not amount to any influencing of the associates.
Q. Now, witness, Dr. Bauer in Exhibit 157 mentioned the telephone conversation in which Dr. Bauer allegedly by you was told concerning a Pol ish prisoner, and I quote: "Don't make a fuss. After all, we shall put his head before his feet."
I should like to remark that witness Bauer when he was cross examined could not say with certainty whether Oeschey had been on the other end of the line. This is on Page 3603 of the record. Please tell us something about that whether you rang up Dr. Bauer at the time.
A. I never rang up Dr. Bauer in this sense. The case mentioned here by Dr. Bauer, I was acquainted with for the first time in this trial. As it was always up to the Prosecution to clear up the question whether a defendant was still capable of being heard, it might be that somebody asked Dr. Bauer from that side. Then there is the fact that according to Dr. Bauer's description, the Pole had just been handed over to the judicial administration by the police when Dr. Bauer made this telephone call. At that time the case could not have been submitted to the Court at all as yet. At the earliest the Prosecution could have been acquainted with the case at the time, who then quite obviously saw from the files the rugrettable state in which the defendant was, and therefore before the indictment was served inquired from the court physician whether it was possible at all to try the defendant. Therefore I have no doubt that some official of the public prosecution made this telephone call with Dr. Bauer.
Q. To prove your prejudiced attitude, some witnesses have also mentioned what they call the red exclamation marks on your official calender and the fact that you called the meetings in the big court, 600. I should like to keep this as brief as possible. Witness Rothaug had already given his comments about that. Have you anything to add to this?
A. No
Q The prosecution has submitted an affidavit by Eichinger, which is Exhibit 227 In Volume 3-1, on Page 60. According to this you were said to have quoted the criminal record of defendants and have increased their sentence an an improper manner for what reason, not so much because of the act they had actually committed before the trial, but because they had a criminal record, and that in some cases you are alleged to have even inflicted the death penalty. Please give us your comments
A. In all cases against habitual criminals it was essential to have the picture of the defendant's personality made quite clear, and therefore go into the question of his record. For that purpose the Prosecution supplied details of the previous sentences served which they submitted to the Court is evidence. In the case in chief on the basis of those files the whole criminal past of a defendant was discussed In detail with him. when he was examined he had every opportunity on those occasions to say something about every one of his earlier deeds and particularly emphasized that his acts were not as he was charged, based on a criminal inclination, out were caused by different phenomena, or that in his case he case he was a dangerous habitual criminal, and so forth. What witness Eichinger criticizes in this method is quite beyond me. Only this detailed and thorough investigation of his former criminal acts guaranteed a reliable judgement of his character and furnished the reliable evidence for the problem as to whether he was a dangerous habitual criminal of not. If the answer was in the affirmative, whether It was necessary to render him innocuous or whether the degree of his proclivity would justify a more lenient sentence.
Of course a man who has been found to be a dangerous habitual criminal will, in all cases, or at least not as a rule, not be sentenced to death only because of the fast act he had committed, but for the reason that that act and his previous offenses quite obviously stamped him as a dangerous and incorrigible criminal.
THE PRESIDENT: I think that is a reasonable statement on that point. It is not necessary to go further with it.
BY DR. SCHUBERT:
Q Some witnesses have charged you with making improper Nazi propaganda in the court room, Please give us your comments about that.
A Certain glimpses of the obvious which you could catch in the courtroom are being distorted here. In certain political cases such as offenses against the malicious Acts Law or the undermining or fighting morals where i made statements which were concerned either with the men in power or their measures and directives, in order to have the significance and justification quite sure it was important to discuss these things during the case in chief. The contents or these remarks made it not possible to avoid touching on political matters because we were concerned with them as the subject matter during the trial, alter all. That this gave a certain political coloring to the trial is, of course, quite obvious. But on no occasion did i ever go beyond the necessary measure, because I have no talent for making propaganda.
Q In this case my Exhibit 19 is importance. Now I shall come to the measure which we have discussed here before, that after the evidence and proof the public prosecutor would turn up in the judge's chambers and would consult with the court in order to have his proposed sentence coincide with the court's opinion.
That measure as such you need not go into, but I would like you to tell us about this. The defendant Schlegelberger has testified that the idea behind this measure was to have the contact established before the case was opened. Please tell us your opinion about that.
A In carrying out a ministerial directive with the penal courts in Nurnberg all I experienced was this, that the public Prosecutor and the court, after the proof had been taken, contacted each other. When I was the permanent president of the Special Court of Nurnberg the guidance discussions were already being held, with the result that any other form of contact between the presiding judge and the Public Prosecution before the trial became as senseless as it became superfluous. As the purpose of the directive was to avoid any striking discrepancy between the proposed sentence by the prosecution and the actual sentence Itself, we had, will-nilly to establish and maintain this contact after roof had been taken, because It was only at that period of time that we could form an impression whether or not the defendant was guilty and what type of sentence he should be meted out.
Q During these conversations between the prosecution and the court was the sentence laid down, or vertually laid down, at least?
A The sentence about to be pronounced by the Court was not laid down on those occasions. The type of sentence and the limit of the sentence was communicated to the Prosecution,,beyond which In the opinion of the presiding judge the court would not go.
It therefore was also not omitted that the sentence which was pronounced was below the proposed sentence which the Prosecution had asked for. In most cases heard by the Special Court the prosecution, as we have heard so often before in this trial, would as a rule follow the advice by the General Prosecutor or the Reich Ministry of Justice, with the result that in those cases any contact between court and prosecution would take place only in those cases when the prosecutor did not think he could advocate the sentence which had been suggested to him. If the sentence which he was to propose seemed to him to be too harsh, the prosecutor then had the possibility to consult about this point with his superior agencies and receive a different directive.
Q The witness Amtsgerichsrat Meyer said in his affidavit, Which is Exhibit 226, in the Document Book 3-1, on Page 74, that it had been you who gave orders to the public prosecution about the sentence to be proposed. Did you during those conversations attempt to influence the Prosecution improperly?
A I never made any such attempt, not did I ever ask the Prosecution to come and see me in order to use a commanding tone of voice in telling him what he had to ask for. I had no interest whatever in the prosecutor coming to see me and be enlightened about what type of sentence he had to ask for. The Prosecution had every latitude in asking for a penalty, quite apart from the fact, that I would hardly have been in a position to give him any orders, because he was not my subordinate, but was committed by the orders of his superior officers. The testimony of witness Meyer in this case Is, in my opinion, purely fictitious.
Q In this connection I should like to draw attention to my exhibits 15 and 17. The Witness Mueller in a Prosecution affidavit, which is Exh. 149 in Document Book 3-C on Page 53, the Senior Public Prosecutor Schroeder had given him orders to adjust himself to your wishes in cases of disputed sentences. Is that correct?
A What directives were issued by Schroeder to the prosecutors under him is unknown to me. Herr Schroeder arrived at his decision quite independently without consulting me first, and it is hard for me to assume that he gave directives to his prosecutors which would aim at his eliminating himself from his own channels of commend.
Q In this connection, I should like to draw attention to my exhibit 15. The prosecution in a number of affidavits have described your relations with defense counsel. It is alleged that your attitude was hostile to defense counsel and that merely regarded defense counsel as an inevitable evil. Clashed had been frequent. What can you tell us about that?
A Isolated instances are being exaggerated and inflated here. If I may give a very conservative estimate: from among 1,000 defendants who have been tried under my presidency, at least half of them were represented by defense counsel. The overwhelming majority of them were chosen by themselves. This shows at once that the allegations can hardly be correct: that among defense counsel there had been no inclination to appear at all before the Special Court at Nuernberg. It is entirely possible that this or that lawyer did not feel to much inclined to do so, but to generalize from that is incompatible with the actual facts. Those 500 defendants were distributed all over the area of the District Court of Appeal to about 50 or 60 defense counsel, and the overwhelming majority among them were heard in this area in the years of importance here by defense counsel who were active. I cannot imagine that 50 or 60 lawyers would be dealt with me in a condescending or even aggressive manner without stopping me from these practices once and for all.
In the case of these 500 defendants, there were a few isolated cases when clashes occured between myself and defense counsel. Some of these clashes, I suppose, we shall have to discuss in great detail Speaking generally, my conduct and my relations with defense counsel were correct.
Q What the witness testified just not coincides with what Exhibit 230 says in Volume III-I, on Page 97. A number of Prosecution affidavits assert that defense did not feel at case in order to give their final pleas freely. ill you please tell us something about that?
A This is not entirely untrue. The reason for this is not with the Administration of Justice, with the Special Court of Nuernberg, or my person, but the war time phenomena have highly restricted freedom of opinion . There cannot be any doubt that in cases with a political tinge, defense counsel in his statements had to be highly careful unless he wanted to get into trouble with the Gestapo. The Gestapo did not hear about those things through the courts, but by their own officials. Therefore, cases with the political tendency would be investigated by the Gestapo, and were examined with the result that as a rule the Gestapo officer who had made the investigation would appear as a witness during the case in chief, and after his testimony would remain present in the courtroom and would. listen both to the final statement of the prosecution as well as that of the defense counsel and the opinion given by the presiding judge.
I can recall a few cases where defense counsel, because of their statements made in the plea, were reported by Gestapo officials. Furthermore, the meetings were frequently watched by officials of the SD. This state cf affairs, which I quite agree was not very nice, I am not responsible for at all. I did not create it nor did. I support it. No defense counsel was reproached by me for what he said during the case in chief. He did not get into trouble through me for those reasons.
Q In this connection, I should like to have reference to what Ferber testified, which can be found on Page 1436 of the record. Witness Eichlinger has testified in an affidavit, which is Exhibit 227, that it had been wellknown that a hint by the Gau directorate given by Oeschey was quite sufficient to hand ever defense counsel to the Gestapo. What can you tell us about that?
A What Eichinger says, there is an accusation which is completely unfounded; in fact, I did not give any such hints, nor did I ever get a defense counsel into political trouble including Herr Eichinger.
Q In this connection, I should like to draw your attention to Page 3473 in the record. Witness Ferber has said, on Page 1433 of the record where he describes an incident, that you during the trial, told the defense counsel Josef Mueller II, I quote: "I draw your attention to the fact that the Gestapo exists." Will you please tell us about that incident?
Q As to what happened has been correctly described by witness Ferb I cannot remember the precise details, but I can assure you that any intimidation of defense counsel could not have been further from my mind. What I remember is that the motion made by the attorney Mueller was irrelevant to the case, but its contents, particularly under the experiences which I have described just now, represented danger to Mueller that political agencies, particularly the Gestapo, might take him into account for these remarks. I wanted to save Herr Mueller from these experiences because I ,as well as all other members of the justice administration, knew that Mueller's political reputation had become extremely bad and that he had not get into serious trouble only for the reason that he was wearer of the golden party badge of the NSDAP.
BY THE PRESIDENT:
Q Will you please pardon me, for interruption please? I have a question Mr. Oeschey, that I wanted to ask before the recess. You referred, in your testimony some moments ago, to cases of undermining fighting morale. I take it that you referred to the law which we have described in the document books as undermining the German defensive strength of August 17, 1938?
A Yes, that law dates to August 1938. It's called as Special War time Penal Decree
Q And you referred to that fact that in cases of undermining the defensive strength which did involve political considerations, it became important to discuss the political aspects of the case?
A Yes, quite.
Q During what periods did the court on which you sat try cases of undermining the defensive strength? During what period did you have jurisdiction over that crime, do you remember?
A If I remember rightly, until about the beginning of 1943. I am practically sure that at the beginning of 1943, the competence for the cases of Article 5, Sub-section 1 of this military law had been transferred to the People's Court.
Q And up until what date did you have jurisdiction in the Special Court?
A Do you mean for undermining defensive strength?
Q Yes.
A Until about the beginning of January 1943. I am not absolutely certain of the precise date.
Q And did we understand you correctly that you would make as a estimate, the statement that approximately half of the defendants who were tried before the Special Court were represented by defense counsel?
A Yes, quite.
Q Thank you. That is all. We will recess for 15 minutes.
(A recess was taken)
THE MARSHAL: Tribunal is again in session.
THE PRESIDENT: Dr. Brieger just asked us to make a ruling which is based on a question presented yesterday. He appears not to be here. Perhaps Dr. Schubert , as representative of all the defense counsel can tell him about it. It is not a matter of great importance.
The affidavit Scholl or the statement in lieu of oath was taken by the husband of the woman who made the statement. The usual procedure under the rule which was adopted, whether it is of fundamental importance or not, must be adhered. The rule provide that statements in lieu of oath may be taken before a notary or before defense counsel who acts upon his honor as an officer of the court and only in cases of great inconvenience, the rule says, can the statement be taken before a Buergermeister, much less before the husband of the affiant.
There is no showing that there was extreme inconvenience in this case and we feel that we should adhere to the rule. We do so with some regret.
BY DR. SCHUBERT:
Q Witness, the Tribunal has just asked you about the political cases which were tried by the special court and cases where the undermining of defensive strength were mentioned in that question. Did these cases of the undermining of defensive strength constitute the majority of the political cases which were brought before the Special courts?
Can you tell us something about that, please?
A The special court did not mainly deal with cases of undermining of the defensive strength. It mainly dealt with offenses against the Malicious acts Law. The undermining of defensive strength was punished as I have said, under Article V of the extraordinary wartime Penal Law.
Q Were from the very beginning of 1942 onwards all cases of undermining of defensive strength removed from the special court or did after that the special court still remain competent to try some of those cases?
A Cases of undermining of defensive strength under Article V of the Extraordinary Wartime Penal Law, were only removed from the special court inasmuch as they were cases under Numeral 1 of that law; that is so to say, inasmuch as cases of undermining of defensive strength in the more narrow sense of that term were concerned, but cases which were dealt with under Numeral 2 and 3 of the Extraordinary Wartime Criminal Law, that is to say, the persuasion of another person to desert the Armed Forces and the infliction of injuries on our self, these cases remained in that the competency of the special court.
Q Is it correct for me to say that thereby, from the beginning of 1943 onward, there were removed from the competence cf the special court offenses committed through utterances, that is to say offenses which consisted in making a remark insofar they constituted an offense against the undermining of defensive strength law?
A Yes, one can put it that way.
THE PRESIDENT: Then when the facts of a case brought under the Malicious acts Law appeared to involve a violation of the law against undermining, you transferred those cases to the People's court when the evidence showed that situation to have arisen, did you not, under Section I?
THE WITNESS: Under the Law the case had to be transferred to the People's Court, yes.
BY DR. SCHUBERT:
Q Now my last question to this group of problems. If in a case of undermining it had to be expected that the death sentence would be passed, was it then necessary to appoint an official defense counsel for the defendant if he had not yet got a defense counsel of his own?
AAs long as the so-called essential or necessary defense was maintained, that is to say, until approximately the middle of December, 1944, in such cases the court had to appoint an official defense counsel for the defendant, unless he had already chosen a counsel for himself.
Q Thank you, I am now reverting to your relationship with defense counsel. The witness, attorney Meyer, in the prosecution affidavit exhibit 231, described how you had barked at him, using the words, and I quote, "Counsel, we don't understand such matters."
Please give us a brief account of that matter.
A That clash with attorney Dr. Meyer occured over the von Praun Case. I cannot recall all the details for I did not attach any great importance to the matter even at the time it occured. May be I became rather violent. The arguments between myself and Attorney Dr. Meyer did, however, have no influence on the case as such, nor did it have any other effects. What caused me to use those words was that the defendant von Praun, during an air raid, had tried to threw two young girls out of an air raid shelter, because in the view of Herr von Praun they had gone to an air raid shelter which was not available to them. Even now I still lack all understanding for such an attitude.
Q The witness. Attorney Eichinger, in the Prosecution affidavit Exhibit 227, says that you had curtailed him in his defense of his client and that had happened over the Zipelius case which was tried by the courts marshall where you had told him to go back to his chair because he had been standing next to a witness and because he wanted to hear better. What are you comments on that?
A In this case I had every reason to call attorney Eichinger to order. While a witness was being examined whose testimony was extremely important, attorney Eichinger left his chair and stood right by the side of the witness who was considerably irritated by his doing so. The behavior of Attorney Eichinger was inadmissible and improper. Therefore, I requested him to return to his own chair. He complied with my request and the further examination of the witness was continued without any difficulty.
As you know, the outcome of that trial was in favor of the defendant those counsel was Attorney Eichinger.
Q. A number of defense counsel, in the affidavits introduced here by the Prosecution, criticized the fact that you had almost always rejected motions for evidence made by defense counsel. Please comment on the matter.
A. A proper decision was made about every individual motion. If such motions were rejected as being irrelevant, one must differentiate as to whether that happened before the trail or during the trial. Before the trial it was the presiding judge alone who decided on such motions. If he rejected such a motion as irrelevant that did not mean that the defendant had been deprived of all further possibilities to produce evidence. He could either call the experts or the witnesses to trial itself or the defense counsel could make another motion for evidence at the trial itself.
Q. Who decided about such motions made at the trial itself.
A. It was the court that decided after the prosecutor had been heard, not the presiding judge.
Q. What could the defense counsel do if his motion was rejected?
A. In cases which were tried by the special court he could then make a motion for a reopening of trial and in certain circumstances he could suggest with the chief Reich prosecutor of the Reich Supreme Court that the nullity plea be made.
Q. Was such legal recourse ever taken against a verdict pissed by you because a motion for evidence had been rejected?
A. Not in one single case did that happen.
Q. A number of defense counsel have complained that the time limit between the day they received the summons and the day the trial was set was too short. I am referring to Exhibits 230 and 232. Attorney Kern says that frequently the time limit of one week had been often cut down. Please tell us something about that.
A. The time limit in cases before the special court, as far as I remember, according to the legal provisions, was only 24 hours. A time limit of one week was the usual time limit with the ordinary courts.
Q. And what time limit did the special courts usually set?
A. In 95 percent of all cases where I set the date of the trial, the time limit lay somewhere between two weeks and six weeks. The number of cases which came in was so great that one could not operate at all with short time limits. Cases where the trial was held 24 hours after the indictment had been filed were extremely rare and those were always entirely clear cases. A case, where, immediately after the offense had been committed, an indictment was filed and the case was tried immediately, never occurred at all. The change made by those defense counsel must, I think, refer to quite a different point.
Not frequently, but occasionally, it happened that just before the date of the trial the counsel who had been chosen by the defendant personally gave up the defense of the defendant and in that case only two or three days before the trial began an official counsel was appointed for the defendant. For that officially appointed counsel the time in which he could prepare his defense was comparatively short but it was left open to hom on ccount of that difficulty whether he would ask for the date to be postponed and motions for postponement, which were based on that reason, I always complied with.
Q. Witness, also the court physicians have some criticism about you to offer. They charge you with having paid no attention to the opinion of the court physicians and that in particular you paid no attention to psychiatric borderline cases. I am referring to Exhibit 157 and 233. Please comment briefly on that matter.
A. The most important question from the point of view of the court to which the medical expert had to answer was whether the defendant was perhaps not in full possession of his mental capacities or whether perhaps his sense of responsibility was reduced.
I cannot imagine any case where the court did not give credence to the opinion expressed by the medical expert. The same was true of other psychopathologic conditions of the defendant even if they did not mean that his sense of responsibility was reduced considerably.
COURT III CASE III
Nor did I ever object if the psychiatric export pointed out that the defendant showed certain psychological defects which, however, did not constitute any pathological elements in the medical meaning but which were in some way or other connected with the offense. If such conditions existed in a defendant they were, if necessary considered extenuating circumstances.
Q. Dr. Kunze says that it had been positively dangerous to make any reference to psychological defects in a defendant as that was merely in additional reason for you to exterminate the defendants - Prosecution Exhibit 233. What have you got to say about that?
A. Such abnormal qualities of a psychological nature were never considered to be aggravating elements and certainly they were never made the basis for exterminating the defendant from human society. I do not know any law which allows such a thing.
The utmost that ever happened was that such reasons were not considered as extenuating circumstances, but that did not mean in any case that they were considered aggravating elements.
Q. Did you have anything to do with Streicher's criminary of aunthropological research?
A. No; I never saw it in all my life.
Q. I am no coming to the relationship which you had with your associate judges. What were your relations with the associate judges?
A. Relations between myself and the other judges of the special court, generally speaking, were of a purely official nature; but they were friendly. Mutual relations were always correct, and in all those years I did not have one single clash with any judge nor were there any friction or any other unpleasant arguments.
Q. The Prosecution has submitted a number of affidavits according to which you treated the associate judges more or less as stand-ins, as puppets, and according to which you considered them no more but a necessary evil. I am referring to the affidavit by Gross, Exhibit 229, the affidavit by Lips, Exhibit 228, and the affidavit by public prosecutor Meyer, Exhibit 226. Please comment on the matter.
A I find it difficult to say anything about those very general charges which do not contain facts but merely represent the views and the judgments of the affiants. I do not think that my associate judges in these days thought themselves puppets or that they allowed me to treat them as if they were puppets without telling me or their superior, or without registering complaints. If some of these judges now days described the matter rather differently, I can explain that to myself only because they are eager to be denazified. In effect, I treated my associate judges always as being members of the court in equal right.
Q In the Prosecution's affidavit by Meyer, Exhibit 226, it is stated that the associate judges hardly were put any questions showing thus that they were playing any part in the course of the trial; is that true?
AActually participants in the trial were not entitled to put questions to the defendant directly. After the defendant had been questioned, I in almost all cases asked the other participants in the trial, that is to say the associate judges, the defense counsel, the public prosecutor, whether they wished any further explanations or any questions. If any wishes existed, I always complied with them. Concerning the witnesses and experts, however, all persons who participated in the trial had an independent right to ask questions of them. I never curtailed that right. The associate judges made us of that right too, sometimes directly, sometimes indirectly telling me in whispers what questions they would like to have asked, and then I asked that question. That right is so plainly a matter of course that the mere idea would never have occured to me to dispute that right.
Q Witness, now you have been talking about a right to put questions, were you referring to a laid which is laid down in the penal code of procedure?
A Yes.
Q In what way did you consult with your associate judges about the sentence and how did you vote?
A There was a full and conscientious discussion before every sentence. In many cases there were no difficulties and then agreement was reached soon about the question of guilt and penalty; but in all other cases the discussion was thorough and detailed and everybody could openly state his own view.
Quite frequently there were long and lively discussions and all possible pro and con was discussed. Naturally, it was not my duty, such as quite a few of the witnesses apparently believe, to give way to somebody else's opinion and make it my own; and, in the same way, no associate judge was under an obligation to follow suit and make my opinion his own. Naturally I would not depart from an opinion of which I was convinced, and for the contrary of which none of the associate judges had convinced me; nor, did I expect any of the associate judges to take up a different attitude. And, therefore, I did not expect them to display any different attitude; nor, did I ever see them display such an attitude. It was also a matter of course for me to try to persuade other persons to my opinion, and vice versa the associate judges tried to do the same with me. Objections which were significant or well-founded I always considered, and I revised my opinion immediately. I was never obstinate in insisting on letting my opinion prevail under all circumstances. If the other associate judges did not share my view, and they were quite free to have a different opinion from my own, I remained isolated and was outvoted; I was never annoyed by that, and if any associate judges did not share my opinion, I certainly never took that seriously, and the possibility that I might be outvoted was a matter of course in the nature of things.
Q Witness, the Prosecution has put in an affidavit by Amtsgerichtsrat Meier, Exhibit 226; according to that affidavit everybody who tried to oppose you was talked at by you in a very rude manner.
THE PRESIDENT: Don't you think that the witness has really answered that question already? I think he has.
BY DR. SCHUBERT:
Q The witness Lips in Exhibit 228 has said that when sentences were being considered no vote was taken. What have you got to say about that?
A That is not true. In all cases in the course of the deliberations, concerning the question of guilt and penalty, there was always the same opinion shared by at least two of the judges. No sentence was ever pronounced to which not at least two out of the three judges had agreed -- such as it was laid down in the law.
Q The witness Pfaff, in Prosecution Exhibit 235, says that you had compelled the associate judges to apply the more severe war time laws. What are your comments on that matter?
A That statement is quite ridiculous. It misunderstand the position of the judge toward the laws, and also the position of the presiding judge. The application or non-application of the most severe war time laws after all had nothing whatsoever to do with my person; that did not depend upon my will. The associate judges, as myself, were subject to the law, and just as I myself were under an obligation and they were bound by their oath to obey the laws and to apply them if necessary. Any other attitude on the part of the judge -
Q Excuse me. I think you have answered that question sufficiently The witness Gross, who previously had appeared here in this courtroom dealt in particular detail with the manner in which you treated him during deliberation in the judge's room. He complained that no attention was paid to his objections, and that you were always interrupting him -transcript page 2839. Please make some brief comment on that particular case.
A I have to say first that Gross distinguished himself by being different from other members of the court because he was so alien and strange to realities of life.