That struck us in the case of many of his objections which were not of a legal fundamental nature or were not concerned with the extent of the penalty, but which referred to the actual events, and that it where it struck us that he was a stranger to the realities of life. Therefore, it was altogether possible in fact, it is certain that I did not pay any attention to such objections on the part of Herr Gross, but objections which deserved attention because they made sense, could he upheld, I discussed them with Herr Gross just as I did discuss them with all other judges.
Q I am now coming to the legal practice of the special court. Would you first please tell us briefly how many cases used to come before the special court of Nuernberg?
A The number of cases to be tried by the special court of tremendous, because people were continuously being called up for service with the armed forces and it was impossible to get any more staff, and, I have already said today that only in 1944 was it possible to transfer many cases to other courts to relieve our judges to a certain extent. At this trial here, with the court files, I had an opportunity to examine the statistics for the years 1940 to 1944 and ascertain fairly exactly the number of cases tried by the special court in Nuernberg. In 1940 approximately 300 cases were tried and the number of defendants was approximately 400. In 1941 approximately 500 cases were tried, where roughly 650 defendants were involved. In 1942 there were 1000 cases, with approximately 1,300 defendants. In 1943 about 900 cases Were tried involving 750 defendants. And in connection with that year 1944, one must bear in mind that about 350 cases were passed on to other courts on account of the relief plan. On an average we sat about four or five days a week.
THE PRESIDENT: Pardon me, Your figures related to trials before the special court at Nuernberg only, did they not -- just the special court?
A Yes, only the special court.
THE PRESIDENT: And how many special courts were sitting; how many divisions?
A There was only one special court with three presiding judges , there was a regular presiding judge; there was a deputy presiding judge; and there was a second deputy presiding judge.
THE PRESIDENT: Would it have been possible for three tribunals to be sitting at the same time under your practice?
A In the years 1943 and 1944 that would no longer have been possible, but in the earlier years that would have been possible because then there was enough staff, but from approximately the end of 1943 onwards, in the course of 1944, only two divisions could sit at the time -- no longer three.
THE PRESIDENT: Thank you.
BY DR. SCHUBERT:
Q The special courts were obligated by the law to apply the war time penal laws. Those laws were extremely severe. Was that severity justified on account of the increase in criminality?
A Immediately after the outbreak of war there was an increase of crime, for which the special, unusual conditions created by the war were typical, above all, I am thinking of the blackout. Rothaug and Cuhorst already described these matters in detail. As the war went on, particularly as a result of the air war getting more and more severe, criminality of all kinds increased and the damage done by such criminals increased and the numerous cases of looting were very characteristic of that, also fraud concerning the war damage offices, bands, black marketing, etc. The criminal offenses themselves, were made a great deal easier to commit because on the account of the destruction by air raids, houses and stores were left without any supervision and, since the fall of 1943, one may say, that Germany had become a theater of war, and especially serious problems arose which could only be coped with by extraordinarily means of one wanted to master them.
The police themselves had been decimated to such an extant that they were no longer able to keep the criminal development in check, and that explains these severe war time laws and their application, which so it seemed alone would avert a catastrophe, and above all the terror regime of the criminal elements. It was necessary to curb the criminal offenses as far as possible by raising the penal risk.
Q In what way did the special court apply these war time laws?
A The special courts, to start with, that is to say at the outbreak of the war, were faced with an entirely new legal problem. The legal practice of the special courts lacked cohesiveness altogether and that in part explains Hitler's intervention with the Administration of Justice, but soon this was remedied because the nullity plea was introduced and from that time on the Reich Supreme Court dealt with the sentences passed by the special courts. From, I think, the beginning of 1940 onwards, the Reich Supreme Court took over the direction and the steering legal practice, because, of course, decisive for the special courts. As the war continued, generally speaking, sentences passed by the Reich Supreme Court became more and more severe, offenses which at an earlier time would have resulted in light punishments now, because the goods which had been lost due to some criminal act were difficult to replace were punished more and more severely. The increased rarety and need for protection was compensated by providing for a greater risk penal risk.
THE. PRESIDENT: May I ask you a question, witness. Did juries sit in any type of case after the war in Germany -- in any type of criminal case?
A No.
THE PRESIDENT: Thank you.
AAnd by the way people were always again and again told in the press, over the radio, and even in the films, and particularly also by notice boards, what would happen if they committed offenses while exploiting the war time conditions and the people were not only warned in the German language, but in almost all languages of Europe.
DR. SCHUBERT: Your Honor, I believe your last question did not come through correctly. Would you kindly put that question again to the defendant?
THE PRESIDENT: I was inquiring it after the commencement of the war juries were employed in any criminal cases, and I meant before any of the German courts. Of course, we know they were not employed in the People's Court or the special court. The question was a general one as to whether juries were used in any criminal trials after the war. I understood him to answer that they were not.
BY DR. SCHUBERT:
Q The Prosecution has put in a large number of affidavits where the sentences passed by you were subjected to severe criticism. I cannot possibly out all these affidavits to you in detail. In a large number of the affidavits expressions such as sadistic severity, blood thirsty judge, the exponent of the idea of extermination, etc., were used. Please comment on those matters.
A Such criticism by its lack of objectiveness and by its lack of truthfulness, I think, passed judgment on itself. The verdict passed by a judge can after all be nothing else but the faithful reflection of the law that the judge has to apply. If the laws are severe and ruthless, the sentences of course must be the same, and if one looks at the sentences passed by our special courts, one must take into consideration that I presided over a court which tried almost exclusively only offenses committed against the extremely severe war time laws. It is altogether wrong to say that the judge was not compelled to apply these severe penalties because almost all war time laws made a fairly wide scope of penalties available to him, and only in a few cases made the death sentence mandatory. That so-called scope of the judges is only an apparent scope if you examine the matter more closely. The legislator by threatening a penalty always curtailed the discretion of the judge, and particularly the limit of punishment was never left to the discretion of the judge, but the legislator fixed it. If as it was frequently the case in war time laws several types of punishment were open to the judge, he could not apply them according to his own discretion, but the law established directives and limitations, thus, for example if the law provided for penitentiary but allowed a prison term for extenuating circumstances; or if the death sentence was threatened, and a more lenient sentence could only be passed if it was a so-called of lesser gravity, or vice versa, if the punishment was penitentiary but in particularly severe cases the death sentences was mandatory.
There was no wide scope therefore but various penalties were threatened according to the fact, whether apart from the main characteristics of the offense other characteristics had to be taken into consideration.
THE PRESIDENT: May I ask a question in that connection? I am sorry to interrupt.
Q You have touched on a very interesting subject. Is it your view that in passing upon the question as to whether an act was one of lessor gravity or whether it was an act in a particularly serious case, that the Court in deciding either of those questions was deciding only a question of law, or were those in your opinion questions of fact?
A Whether a case was particularly serious or was not so serious that was a legal question, not a question of fact. The Reich Supreme Court in a large number of decisions established very accurate directives according to which those questions had to be decided.
Q And you applied the same rule in determining whether it was a question of lesser gravity, you considered that also a question of law and not of fact?
A That is a question of law.
Q Did you ever consider in passing upon those questions of law the evidence concerning the character or motive which activated a defendant in committing the crime?
A Yes, of course.
Q You considered those in determining the question of law?
A Yes, quite so, Your Honor, our decision was based on the consideration of that point of view as to whether a case was particularly serious or not quite so serious.
Q Thank you.
BY DR. SCHUBERT:
Q This important point, the last point on which you touched, I should like to have explained with two examples. Please describe some offense which would have constituted an offense against Article 2 of the Public Enemy Law, that is to say, a black-out crime; what point of view would you have to take into consideration?
A First of all the actual offense that had been committed, let us say a theft. Concerning a theft the scope of penalty was one day up to five years. If it was an offense against Article 2 of the Public Enemy Law, the scope of penalty was one day up to five years. If it was an offense against Article 2 of the Public Enemy Law, the scope of penalty for the same theft was one year up to fifteen years in the penitentiary and if it was a particularly serious case, a death sentence.
Q And now would you please tell us the same thing about the habitual criminal. Will you again assume that the basic offense was a theft.
A In the case of an habitual criminal the scope of punishment of one day up to five years imprisonment was replaced by the penalty of the scope under article 20-a of the Reich Penal Code which provided in the case of an ordinary theft, one to five years penitentiary and in the case of serious theft, 1 to 15 years in the penitentiary. In the course of the war in the case of habitual criminals the sentences were made more severe yet and if the protection of the community demanded it or if the need for just atonement demanded it, the death sentence had to be passed.
Q And other provisions could be considered in the case of habitual criminals under what prerequisite?
A Under the prerequisite that he was not an incorrigible habitual criminal, but however a dangerous habitual criminal, and if the public safety demanded it, safety custody could be ordered.
Q Witness, did you ever pass a death sentence contrary to the law or contrary to your own convictions as a Judge?
A No, if together with the associate judges, we agreed to pass the death sentence we did so upon the conviction that was the result which the legislator had intended and which I had considered fair within the framework of the law. I based myself on the will of the legislator which was recognized in the preamble of the law or in the law itself or from the directives of the Ministry of Justice, as well as by the principles for interpretation established by the Supreme Reich Court and also based myself on my own convictions as a Judge and on those of my associate judges that the defendant merited the death sentence due to the particular circumstances of his case, also because we had a definite impression of his personality being that of a criminal. If within the framework of such a consideration we judges did not arrive at the conclusion that this defendant merited the death sentence and for example the youthful age of the offender or the fact that he had no previous convictions or the fact that particularly tragic circumstances of his life existed, circumstances which might provide for an excuse, or if the fact that the defendant had appeared to us to be capable of improvement, played a big part with us, in all such cases we abstained from passing the death sentence.
BY THE PRESIDENT:
Q I wonder if you would pardon another interruption, Dr. Schubert?
Pursuing this interesting question a little further, you remember that the defendant Lautz testified that his department under his direction passed upon a very great number of cases at the pre-trial stage, the indictment stage, and he or his associates in many cases considered whether a charge amounted to an undermining of military morale on the one hand or a malicious act under that law on the other hand, and the undermining cases at that stage of the war were turned over to the Peoples' Court, and the other cases which looked like malicious act cases were sent to other courts. Is it your opinion that at that stage also the determination of whether the facts in the file constituted a malicious act or an undermining of military morale was also a question involving no exercise of discretion on the part of the Prosecutor.
In other words, it is the same question again, did that present to him, in your opinion, a pure question of law?
A Whether an offense against the undermining law or against the malicious acts law had been committed, that first of all is naturally a legal question, a question which can only be decided on the basis of the whole circumstances which lead either to that utterance being made or the offense being committed. Above all one had to consider and one had to find out what had been in the mind of the offender when he made that utterance; what results he had intended to achieve.
Q You would say you are considering the facts, aren't you, and as an appraisal and estimate of the matter, the significance of those facts, then the legal question was solved, when you said you estimated the facts?
A Yes, quite so.
Q His testimony, Dr. Lautz' testimony sounded at least as if he had in many instances exercised a very sound discretion in passing upon this question that was presented to him. You wouldn't say he violated the law in doing that?
A I am afraid I didn't get that.
Q Wasn't it your impression that in passing upon those complicated facts that the defendant Lautz in his department had to exercise a very wise and sound discretion in determining which way to send the case?
A Your Honor, it is difficult for me to judge that. It all depends on the individual case and question. From my own experience all I can say is that frequently the utterances in themselves were of a type that could be described as undermining the military morale, that is to say, they were objectively undermining remarks, but such remarks somehow or other were connected with the distemper or anger or worry of the offender concerned, and, therefore, in such cases one could say it was not his intention, he did not deliberately underline the defensive strength.
THE PRESIDENT: I think we understand each other. Thank you. We will recess until tomorrow at nine-thirty.
Official Transcript of American Military Tribunal III in the matter of the United States of America again Josef Altstoetter, et al, defendants, sitting at Nurnberg, Germany, on 11 September 1947, 09300630, the Honorable James T. Brand presiding.
THE MARSHAL: Persons in the Courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal III. Military Tribunal III is now is 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 all the defendants are present?
THE MARSHAL: May it please your Honors, all the defendants are presents in the Courtroom.
THE PRESIDENT: The proper notation will be made. You may proceed.
DIRECT EXAMINATION BY DR. SCHUBERT:
Q. Witness, yesterday just before the recess, the bench discussed with you the question whether in deciding that a case was particularly serious or was not particularly serious, the special court had to discuss a question of law or a question of fact. I believe that yesterday you had not yet given an altogether clear reply to that question. Please comment on it once again, briefly please.
A. In examining the question as to whether a particularly serious case had occurred, or whether it was a less serious case, the court had to base itself on the facts which had been established at the legal trial. Those actual facts of the case had to be subjected to a legal evaluation to discover whether these facts made the case a particularly serious or less serious offense.
As far as that is concerned, it was a legal question than was under discussion. The Reich Supreme Court in the course of the years in many decisions, laid down certain directives and established certain for answering this legal question and the court did not have a free choice as to whether or not it wanted to assume that a particularly serious case was before it.
The Court always had to assume that a particularly serious case had come up for trial if, according to the directives like to mention a particularly illuminating example. I am referring to a case which was mentioned once before at this trial here.
I believe it was the attorney, Dr. Neier who mentioned it. That was the Bosch case. Bosch had stolen cigars and cans from army stocks. If I recollect correctly, he had no previous convictions or if he had any they were insignificant. According to instructions, the public prosecutor indicted him and if I remember rightly, he indicted him either under the Public Enemy Law or under the War Economy Law. At any rate, the public prosecutor assumed that a particularly serious case existed. Therefore, he asked for the death sentence for Bosch. The Court---I was the presiding judge at the time--came to the decision that it was not a particularly serious case, and it came to that decision largely because the quantity of cigars and cans which Bosch had stolen was not very large, and that Bosch was not an inferior character.
A nullity plea was made and the Reich Supreme Court quashed the verdict. In doing so, it pointed out that concerning the question whether this was a particularly serious case, the Court had made a legal error and had taken into consideration the quantity of the articles that had been stolen.
At the second trial, at which I was not the presiding judge, the court, in accordance with the provisions of the Law, was bound by the legal view which the Reich Supreme Court had expressed concerning the characteristics of a very sever case.
Q. Witness, did you have an opportunity during that trial here to re-examine the sentences passed by you at the special court on the basis of files?
A. During the course of this trial here, I had an opportunity to examine approximately 300 sentences which were passed when I was the presiding judge.
Q. On the basis of that scrutiny, can you name a few examples which are particularly informative concerning the concept of a very serious case or a case of lesser gravity? Will you be brief please?
A. I could name the following examples as being particularly instructive. Firstly, she Anna Leichtel case for example, a woman who had stolen clothing and underclothing from the apartment of a man who had been called up for service with the armed forces. So as not to be discovered, she had set fire to the soldier's room. The question as to whether this was a particularly serious case was obvious question here. As far as I remember, the prosecution considered whether it would ask for the death sentence.
The Court did not assume it to be a particularly serious case, and it based its legal view on the fact that the defendant was an elderly woman who until now had been unexceptional in her conduct and who had no previous convictions; the sentence was five years in the penitentiary.
In another case, it was the Fleischmann case, the main defendant did have some previous convictions and she had several times stolen the material from a textile collection. She was not sentenced to death, although on account of the fact that the textile collection had to be protected, it was quite obvious that the question of whether it was a particularly serious case had to be taken into consideration, but one also considered the point that only at a higher age this woman had became a criminal and that she did not have any serious previous convictions. She did not appear to be altogether incorrigible. Those reasons, according to the legal practice for the Reich Supreme Court, made it possible to refrain from passing the supreme penalty.
The same problem also existed in the Wirt case. A woman in an air raid shelter had busted open a truck and had removed clothing from it. That was an offense which in its illegality almost amounted to plundering.
Here again on account of the fact that the goods which had been stolen needed special protection, it had been considered to ask for the death sentence, but as the defendant was still a relatively young person, the death sentence was not passed, and it was not assumed that this had been particularly serious case. The defendant was sentence to five years in the penitentiary.
When field post thefts were committed, the question of whether it was a serious case was always particularly critical. The practice in such cases varied extremely. For example, in the Scherr case, a man who had stolen more than twenty field post parcels from his colleagues in his factory, the death sentence was not passed, although the public prosecutor had asked for the death penalty at the trail, and the fact that the person of the defendant could be considered valuable and the fact that he did not commit his thefts as a post official those two factors were taken into account where it was decided not to pass the death sentence.
Then there was the case of Franz Kaelbl. He was a post office clerk who had been stealing from many field post parcels. Here again it was decided that this was not a particularly serious case although it might have been obvious to assume that it had been a serious case because Kaelbl was an old man who all his life had been a conscientious civil servant and who now finally, perhaps due to senility, had failed.
These circumstances which were bound up with his character could be evaluated in a manner which made it possible to refrain from passing the extreme penalty, in this case.
THE PRESIDENT: May I ask you another question on this subject, please? I should like to give you an illustration from Anglo-American law, not suggesting that law controls, but merely to illustrate my point. We have a distinction between what is known as the law of the case which is binding upon the trial court, on the one hand, and a mere precedent which is urged as controlling in a case, on the other hand. Where a case has been tried in the trial court and then that case goes to a higher court and the higher court gives instructions for the retrial, there those instructions are absolutely binding on the second trial. You understand what I mean?
MR. OESCHEY: Yes.
THE PRESIDENT: On the other hand, if a decision is rendered by the highest court it is applied not in that particular case but as a mere precedent in a different case, a distinction arises. Now my question was merely to ask you, do you not recognize a distinction in these two cases? First, where you have decided a case in the special court and then upon nullity plea proceedings, the Supreme Court holds that an error of law was made and sends that case back for another trial, there you would say, I take it, that the decision of the Supreme Court, the Reich Supreme Court, is absolutely binding upon the Court which tries the same case for the second time, would you not?
MR. OESCHEY: Yes, quite.
THE PRESIDENT: But do you not recognize a distinction between that case and the case where the Reich Supreme Court's decision is merely urged as a precedent in another, in a different case which has never had the nullity plea applied to it at all, a different defendant, under different facts?
MR. OESCHEY: Yes, your Honor, there is a difference.
THE PRESIDENT: And you recognize that in German procedure also?
MR. OESCHEY: Yes, also in German. If we were to depart from a decision made by the Reich Supreme Court, we would always have risked our verdict being contested by a nullity plea with the outcome that our verdict would have been quashed because we had ignored the decision of the Reich Supreme Court.
In that case, such a case would have been sent back to us and we would then have been bound by the law to follow the legal view held by the Reich Supreme Court. Therefore, in practice or rather therefore the practice would evolve from the very outset to take into account the decision by the Reich Supreme Court.
THE PRESIDENT: Surely, but in doing that in a case in which you are deciding and which had not gone to the Reich Supreme Court, the judicial process would be to consider all of the circumstances, some of them very subtle ones, in determining whether this case was identical to some previous decision of the Reich Supreme Court. There you would consider all of the facts and circumstances in deciding whether the precedent applied in the new case, wouldn't you?
MR. OESCHEY: Oh yes, those facts were examined very thoroughly.
BY DR. SCHUBERT:
Q. Witness, I think we can now depart from our problem of the particularly serious and less serious cases and I am now passing on to one of the main charges of the prosecution. That is the charge that you were always anxious to pass the most severe sentences possible and that in fact you were particularly gratified if you could pass the death sentence.
I am referring to the affidavit by Mueller, Exhibit 149 in volume 3-C, page 53, which refers to the two cases of Strobel and Schnaus.
In those cases, you are said to have passed more severe sentences than the sentences for which the prosecution had asked. Please give us your comments on that charge.
A. This charge is unjustified. If, in particular, the cases of Strobel and Schnaus about which we will have to talk yet, were used by the prosecution as proof to show that I was inclined to make sentences more severe, I am in a position to mention a far greater number of cases which prove the very contrary. That is to say, they prove that neither I nor my associates were pushed by the desire to make penalties more severe, but that we were altogether conscientious and responsible in our manner of evaluating the facts.
At this trial here, a number of such cases has been briefly discussed, and I should like to refer briefly once again to such cases. I am thinking of that case, I would like to call it a particularly tragic case, where a woman was indicted under the Wool Collection Law because during the wool collections in 1941 and 1942 she had intended to steal one pair of gloves. The legal feeling was, I should like to say, almost compelled us to look for a way to save that woman from such a fate as would have been here under the Wool Collection Law, and I made every effort by a particularly thorough and responsible examination of the facts to find a way which the law would approve, and it was possible to save that woman from the death penalty; particularly in cases of plundering I was always anxious to find reasons which made it possible without violating the law not to pass the death sentence on the defendants concerned.
I believe it was the witness Ferber who here mentioned the case of two young girls who were tried because they had fallen victims to the desire of stealing one dress each, due to their youthful lack of reason. I particularly remember another case of plundering where four or five Czechs were tried. There were four or five young Czechs who were working in Germany. During one of the air raids on Nurnberg, in 1943, as far as I can remember, first they were active in helping with the fire fighting and they spoiled their shoes and their clothes during their fire-fighting activities.
Afterwards, from a shoe factory which was still on fire, they allowed themselves to steal shoe soles. All those Czechs had a very good reputation, and in view of the motives which had activated them, and in view of their characters, in my view it was possible not to assume that they were plunderers. As far as I remember, they were merely sentenced for theft.
The witness Brehm mentioned another case and that case too proved that I was always grateful for any suggestions from an associate judge, a suggestion which was possible under the law, and which made it possible to avoid the death sentence. I also remember particularly the Model case. The defendant, a woman, at a food office had stolen a number of ration books. The Public Prosecutor was instructed expressly by the Reich Ministry of Justice to ask for the death sentence but the character of the defendant and the motives former theft which were not all together objectionable, made it possible for us to refrain from passing the death sentence on her. The Reich Ministry of Justice approved of the verdict.
Q. In about how many cases did you sit on the Special Court and what was the percentage of death sentences?
A. At a very conservative estimate during the six years of war I tried at least six to seven hundred cases, in which I was the presiding judge. The death sentences which were passed while I was the presiding judge have probably all been established by the Prosecution. The figure is approximately sixty. One must bear in mind that in the majority of those six or seven hundred cases either laws were applied which threatened the death sentence, either those laws made the death sentences mandatory, or they made it the normal punishment in severe cases, or any how they were the cases where the application of such laws had to be considered.
Q. Did you of ten see clemency being granted?
A. No, in spite of a very thorough examination of the verdict at the Reich Ministry of Justice I think clemency was granted only in three or four cases. I cannot tell you for sure but I did not think where were much more than three or four.
Q. Did that clemency practice encourage you to continue with legal practice as before?
A. Yes, that gave me the conviction that my legal practice was correct.