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.
Page 2
Q. Among the 300 verdicts of which you have said that you examined here, did you have any acquittals among them?
A. There were only about one or two acquittals but when I was the presiding judge there was a relative large number of acquittals. In view of the fact that the Prosecution prepared their indictments very thoroughly, that is a sign that we set very high standards as far as proof of guilt was concerned. Statistics for the year 1944 show and I remember that, that during that year acquittals amounted to twenty per-cent.
Q. I included a few examples in my document book I. They are Exhibits 24 to 28.
BY THE PRESIDENT:
Q. May I ask a question please? I don't understand the relationship of the 300 cases you have examined to the six or seven hundred cases you spoke of, over which you were the presiding judge. Were the 300 cases included within the 600 or 700 cases of which you spoke?
A. Oh, yes, they are included.
Q. But you said there were only one or two acquittals in the 300 cases. I am merely trying to understand. I am not criticizing. I am trying to understand your testimony.
A. Yes, Your honor, among those 300 verdicts which I re-examined here during the time of this trial, verdicts which were made available to me by the Prosecution, I do and only one or two acquittals. The other acquittals might have been lost or cannot be found.
Q. I was wondering how it could be that the percentage of acquittals in 300 cases which you have examined here is less than one per-cent, according to your statement, whereas your last figure for the total percentage of acquittals ran up to - what was it? twenty per-cent, such a matter?
A. That twenty per-cent, Your Honor, refers to all the cases which we tried in 1944.
Q. You and the other courts together?
Page 3
A. And those acquittals did not occur only when I was the presiding judge.
Q. The 300 cases are cases in which you were in, you were in the 300 cases?
A. Yes, yes, Your Honor, when I was the presiding judge.
DR. SCHUBERT: Your Honor, by way of explanation, I should like to say that these five cases where there were acquittals and where Oeschey was the presiding judge, and about which I discovered the facts, and about which I introduced affidavits in my document book, now what I want to say is that these five cases are not among the 300 files which the defendant was able to scrutinize here.
BY DR. SCHUBERT:
Q. Witness, would you please tell the Tribunal whether those 300 cases which you were able to examine, did contain the cases of the prosecution or is that a special list?
A. No, no, that included cases by the Prosecution.
Q. Were there nullity pleas made very often in connection with your verdicts?
A. I estimate that there was a nullity plea made in connection with ten or twelve of my verdicts.
Q. And what about the re-opening of a trial?
A. The re-opening of a trial was a very rare occurrence. I remember here in particular one case where a Czech had been sentenced for an offense against the malicious acts law by the special court. That case was re-tried because it had been found afterwards that one of the witnesses had committed perjury. The Czech was acquitted without an oral trial and damages were awarded to him in full.
Q. The Prosecution also charged you with having placed your legal practice in the service of a program for the extermination of certain groups of people and with having been guided by the Nazi doctrines on biological and racial selection. I am referring to the Meyer affidavit, Exhibit 226. What do you have to say about that?
Page 4
A. I never came across any penal law which would have enabled me to follow any such tendency nor did I ever assume one could apply such a point of view in awarding sentences. If I had been guided by such inclinations I would have been so in cases where people were tried, who above all could have been taken as victims of the alleged Nazi doctrine of such biological and racial extermination. I remember the case of a Jew whose name was Schoenbaum. He was indicted for a malicious remark, which, view objectively, could quite definitely have been judged an offense against the undermining law. If I had wanted to exterminate Schoenbaum simply because he was a Jew, I would have done so, but actually we sentenced Schoenbaum under Article I of the malicious acts law, which was the mildest law one could apply, and he was sentenced to a prison term. The matter was even more critical in the case of a Jewess, whose name I cannot recall. She had tried to transfer her money to Switzerland. As far as I remember she was tried under Article IV of the Public Enemy Law. We understood all together the motives of that Jewess, and although the case was considered to be very serious, we did not pass the death sentence. That is all together incompatible with the tendency of exterminating Jews with which I have been charged. There was also a fifty per-cent Jew, whom I had tried. He had participated in severe cases of robbery: it is a case with which we shall deal further have, as the Treiburg-Lerrer Case. In view of the fact that the defendant was very young we refrained from passing the death sentence on him. I tried at least two gypsies, one was a receiver for stolen goods, he was connected with a gang of thieves, which I think was the most dangerous in Nurnberg during the war. The other gypsy had forged a large number of clothing coupons and had sent them to the economic office. The latter was sentenced to one year an six months in a penitentiary and the other gipsy who had received stolen goods was sentenced to three years in a penitentiary, that is to say, in fixing the sentence we did in no way take into Page 5 account the racial qualifications of the defendants.
Q. The charge of extermination is made also in connection with your legal practice, concerning dangerous habitual criminals. Please comment on this matter quite briefly.
A. In that respect that charge is all together unjustified. By a law of 1933, the wording of which is based on a draft made in 1927, we in Germany started to fight habitual criminals. That started with making the penalties more severe and by ordering safety custody. During war time this fight was also made more severe as by the law of the 4 of September 1941, the death sentence for habitual criminals was introduced, if either the need for just a tone mentor the need to protect the people made the death sentence necessary. But not every habitual criminal was sentenced to death. The principles which guided us in deciding whether the death sentence or safety custody was to be ordered were based on the fact of whether the habitual criminal had to be considered incorrigible or whether there was still a hope that the might be brought to a reformed or less criminal life.
THE PRESIDENT: Dr. Schubert, you are conducting your examination in an orderly fashion anD we appreciate that. I wanted to suggest to you only that as to this matter of the dangerous habitual criminal, I think it may be treated very briefly in view of the testimony we have already had. I am sure everyone realizes that the previous record of a habitual convict, habitual criminal is a proper matter for consideration in sentencing. The procedure in different countries differs somewhat but the principle is recognized everywhere. We understand that.
BY DR. SCHUBERT:
Q. We can now finish with this subject, witness, but I should like to discuss one point briefly. You have also been charged with always having taken up a point of view less favorable to the defendant when it came to deciding whether he was fully responsible before the law or whether his responsibility was reduced.
This is a question which we have dealt with here before, but would you say a little more about it and give us briefly some examples?
A. Well, that question has been discussed at length here. In particular it has been made quite clear that in the case of a considerably reduced responsibility it was at the discretion of the Court whether a more lenient sentence was to be passed or not. I always adhered to the principle which had been established in a number of decisions by the Reich Supreme Court and I can give an assurance that in the greatest majority of cases of reduced responsibility, we did make use of the possibility to pass a more lenient sentence. We refrained from making us of that opportunity only in cases where such reduced responsibility made the offender particularly dangerous.
Q. Witness, please be more brief. I only asked you for a few examples.
A. From the files which I have scrutinized I found that there were five verdicts passed on offenders who had committed very serious offenses, and in those cases, article 51, section 2, was applied which allowed reduced responsibility. One defendant had repeatedly stolen baby carriages from which were standing outside a doctor's house--valuable articles, in this case it was money. Although the expert said that she was feeble minded only to a very minor extent, that is to say her responsibility was not considerably reduced, yet that slight degree of feeble mindedness was taken into consideration and a more lenient sentence was passed.
In the Geitner case where a man had committed a repeated offense of theft stealing from bomb damaged houses, only a mild one year penitentiary sentence was passed because of the expert opinion of the physician.
Q. Witness, you have told us about two cases, and in the other three cases, what are they?
A. All of the circumstances are the same in the other three cases, but these are only a very few cases out of a large number of cases.
Q. Charges are made against you, particularly in connection with the sentences you passed on foreigners and again the Poles are mentioned. It would take too much time to quote from the Prosecution affidavits. Please will you tell us something quite briefly about your legal practice in the case of foreigners.
A. The statements in these affidavits concerning the sentences passed by me on foreigners are all together unfounded. I treated foreigners no differently from the way I treated Germans and I never sentenced a foreigner to a more severe penalty simply because he was a foreigner nor did the law ever enable me to do so.
Q. The witness Bauemler described BY JUDGE HARDING:
Q. I would like to ask a question on that point. Why under the law as pertains to Poles was it possible to pass a more severe sentence?
A. In the case of Poles, when the law against the Poles was applied, the penalty was passed according to the provisions of the law, that is to say, in the case of Poles, the majority of offenses committed by the Poles, the sentence was within the scope of the penalties provided by the general German laws.
Q. Then the law against Jews and Poles provided specific sentences for both Jews and Poles which were different from those provided against the Germans?
A. An exception, or rather exceptions in the cases of Poles were these: Article I of the law against Poles enumerated the number of prerequisites which only Poles could fulfill. Concerning the other offenses of Poles which did not come under Article I, the general German law, had to be applied, but instead of a prison term, a term in a penal camp was passed and in the case of a penitentiary sentence a term in a more severe penal camp was ordered and in particularly serious cases the death sentence could be passed.
Q. Did you try any of these cases in which the death sentence, where the death sentence was passed.
A. The particularly serious grade, you mean because a particularly serious case had occurred?
Q. Involving a Pole?
A. For that reason, no.
Court No. III, Case No. III.
JUDGE HARDING: Did you try any sentences where this law against Poles was applied and the death sentence was decided upon?
THE WITNESS: I do not remember any such verdict, but I do remember two verdicts where the death sentence was passed on the basis of the law against violent criminals.
THE PRESIDENT: Did you try any cases under Article I of the law against Poles and Jews to which you referred and which defined crimes which could only be committed by a Pole or a Jew?
THE WITNESS: One is the Kaminska Case which we have to discuss further here. In that case the Prosecution had filed its indictment under Article I of the law against Poles but the Kaminska woman was not sentenced under the provisions of Article I. She was sentenced under the law against violent criminals. I cannot remember any other case under Article of the law against Poles as I had them very infrequently and I think I am quite sure that I did not sentence any Polish case under that provision.
THE PRESIDENT: Well, Article III, as you know, relates to the type of institution in which convicted Poles are to be confined.
THE WITNESS: I am sorry, your Honor, I didn't get the translation.
THE PRESIDENT: Article III of the law against Poles and Jews relates to the character of the place in which Poles who have been convicted are to be confined or imprisoned. When a Pole was convicted under the general criminal laws, not the law against Poles and Jews, you complied with the provisions of Article III as to the type of imprisonment which he was to have, did you not?
THE WITNESS: Yes, naturally.
JUDGE HARDING: Did you ever try a case against a Pole who, because of his age, would have been a German juvenile and come under the provisions for juveniles as to Germans?
THE WITNESS: No.
JUDGE HARDING: You never tried a case where there was a Pole who was of such an age that he would have come under the German juvenile law if he had been of the German race?
THE WITNESS: I never tried a case of that type.
BY DR. SCHUBERT:
Q. Witness, the witness Kern - Prosecution Exhibit 230 - says that you had been a notorious hater of Poles and he mentions the Kwasnik Case - Karl Kwasnik. Do you remember that case?
A. I don't remember that I played any part in the decision of that case. The details which have been mentioned at the trial here were altogether new to me. Therefore, I think it is out of the question that I ever knew anything about that case or that I tried it. The facts of the case are unusual. It was a case of an abortion with horse urine and as my memory is as a rule very reliable, I think I would remember this case or at least I think I would have remembered it again now when it was discussed here. Therefore, I think that the witness Kern made a mistake in connection me with this case.
Q. The witness Eichinger - Prosecution Exhibit 227 mentions two cases on which he bases his view about your inclination to exterminate foreigners. The first is the case of a young Frenchman. Can you remember that case?
A. I remember the case and I am quite particularly certain I can say that the name of that Frenchman was Blondel - B-l-o-n-d-e-l-. The case which I remember was the case of a main defendant having, sometimes alone and sometimes in company of others, committed burglaries in garden houses and weekend cottages and in almost all cases he had done so while exploiting the blackout.
The main defendant had left his place of work and was leading a lazy life. He was making his living exclusively by theft. He went on with his thieveries for several months and the population of Nurnberg was rather upset about his doings. He stole everything that was at all movable. The damage was very considerable.
Among the stolen goods there were articles which had been stored to protect them from air raid danger and it was a particularly serious case under Article II of the Public Enemy Law and that according to the extent and to the motives of the offense and in particular because of the great number of burglaries committed.
Q. The second case which Eichinger mentions is that of a Pole who, by the special court when you were the presiding judge, is supposed to have been sentenced to death for threatening somebody with a hoe. What do you have to say about that?
A. A case such as the witness Eichinger has described it, I never tried. That account of the witness Eichinger is so vague that I, myself, cannot recognize any punishable offense. The way he describes that case cannot be true if proceedings were instituted at all.
Q. The witness Lips - Prosecution Affidavit, Exhibit 228 - mentioned another case of a Pole. This Pole is supposed to have been sentenced to death by the special court, with you as presiding judge, for having defended himself against illtreatment by his employer. Do you remember that case?
A. Yes, I remember it. The facts were the following: The Pole was employed as a farmhand with a farmer. I can't remember the place where he worked. To begin with, his employer had been satisfied with his work but later on the Pole became unruly.