My question goes to this matter, this Rule 21: It seems to apply only to exhibits which are to be prepared by the Defense, because it refers to authentication by Defense Counsel and contains no provisions for authentication by Prosecution Counsel. I am inquiring of you whether the rule is intended, as you understand it, to apply to this case at all. If it does apply, we must enforce it, of course.
MR. WOOLEYHAN: It is my understanding that the rule did not apply to the present case, but apparently for a different reason than the one that the bench has just advanced. It has been the experience in past trials that the Prosecution could be relieved of the burden of submitting all written testimony under oath, and by a provision similar to the one we are discussing, by giving some probative value to signed statements; but that doesn't apply to the present case either, for the reason that the document was not prepared or done at the behest of the Prosecution.
DR. GRUBE: (Attorney for Defendant Lautz) May it please the Tribunal, the prosecutor has stated before that these documents should be considered in the same category as captured documents because they came from German offices, or that they have been placed at the disposal of the prosecution by German authorities.
May I emphasize in case No. 1. the Prosecution presented several verdicts and sentences of German courts concerning the question of Euthanasia; verdicts which were handed down after the end of the war; all of these sentences were rejected by the Tribunal because they were not compatible with Article 7 of Ordinance 7. The Court was of the opinion at that time that only sentences are admissible under Article 7 of Ordinance No. 7 which were pronounced by military courts, but not sentences by German courts, and that also referred to all other proceedings; for instance, in that case a letter was submitted by a Pastor Braun, which also dated from the time after the beginning of the occupation -that also was rejected as inadmissible.
MR. WOOLEYHAN: If the Court please, the precedence cited by the Defense is clearly distinguishable. We seek by offering this document not to set any precedent; this is evidence as to facts, not a tendered example of what the Court should or should not do in deciding a case. This is a substitute by the Prosecution for direct testimony on the stand; it is the best evidence in this context that the Prosecution can offer; evidence as to facts, not cited cases.
THE PRESIDENT: We notice one place in this exhibit where it is stated that the witness was admonished, and it doesn't expressly state that he was sworn to speak the truth. Did you observe that?
MR. WOOLEYHAN: Yes, your Honor, I have, Not only in one place, but in several places throughout the document, the witness was admonished and solemnly told to speak the truth. Now, as I said at the beginning of the argument on this objection, the Prosecution has until now been of the opinion that these documents constitute affidavits with the exception of the Countess Montgelas case, because the administering of oath before German courts is a very informal matter; by that I mean we can show as a matter of proof, if needed, that the German courts used their own discretion in swearing and in not swearing witnesses. The Prosecution was reluctant to state or contend that the language to which you refer constituted an affidavit because we just didn't know, but it is at least arguable that they are.
THE PRESIDENT: What have you to say about the fact that there are two letters also here referred to, which of course have not been sworn to.
MR. WOOLEYHAN: The two letters to which the Tribunal re fers are the two letters concerning Countess Montgelas.
As I stated before, we have offered as the best evidence only four letters, that is one letter and three reports, that were made available to us. We do not regard the omissions as material; we think that the way we treated it today was coherent, with no misleading omissions, but on the other hand, if the Defense would care to find and introduce these two letters, if indeed they exist, we would be very glad to have them.
DR. SCHILF: (Attorney for Defendant Mettgenberg) May it please the Tribunal, I do not intend to further complicate this matter by adding my statements, but I believe it is necessary to explain to the Tribunal that in the German proceedings for investigations, for judicial investigations, quite different methods are used than the Prosecutor seems to assume.
Mr. President, I am referring to the admonishment contained in this transcript; an admonition that means the witness should say the truth, you should tell the truth and nothing but the truth. We know from our experiences that this admonition is also used by the police. That, therefore, when the police questions anybody for any transgression that he always tells him you have to tell the truth now. That has nothing to do with any formula in place of an oath, or similar to an oath, not the form of assurance in lieu of an oath as indicated by that. According to German useage, it is just a method of pointing out that you cannot lie to the official. The witness, however, knows quite well that he is not under oath, and in fact it happens often enough that a person in question knowing that he or she is not under oath definitely lied. May I add the following, according to German useage, so-called ermittlungsverfahren, a preliminary investigation is usually taken care of by the police, carried out by the police. As far as the courts are concerned, procedure becomes relevant only when police files have been deposited with the prosecution, and then the preliminary investigation may be started by the court according to what we have seen in these files, what has been submitted from the files; it was not a case of an investigation before the police, nor was it a socalled responsible investigation, for in German useage a responsible investigation means an interrogation before a Judge, that is to say, before officials of the justice, department or service of justice.
who is entitled to ask to take an oath from a witness or who is entitled to accept an assurance in lieu of an oath because according to German law not every office may accept assurance in lieu of an oath; only those who are specially entitled or privileged to do so. May I say, therefore, that the admonition which is contained in these -- to be found in these files, do not prove that the statement was made in the form of an assurance in lieu of an oath. As a general rule when an assurance in lieu of an oath is given, that is specifically and clearly stated in the document, and with the appropriate formula. Then, it is common use to give a much stronger admonition -- a much stronger one, and not simply an admonition to tell the truth, but pointing out of a special responsibility with reference to the fact that the witnesses' statement is in place of an oath before the court. That is not to be seen here, and I believe I may say it is nothing else than a simple document -- nothing else that a statement before a prepatory or preliminary commission, such as a police officer would be. Before a German court, a statement of this kind would not represent the least probative value.
MR. WOOLEYHAN: That is a rather strong statement. However, the probative value of this document, we are quite willing to leave to the Court. And, in spite of all this talk about what the form of a German oath may or may not be, the Prosecution did not start out and does not end up by offering these documents as affidavits. We offer them on their face as signed statements for whatever they may be worth. The probative value is certainly for the Court to decide.
JUDGE BRAND: May I ask another question? Suppose that in the defendants case in chief they should offer a letter or a signed written statement which categorically and directly denied immaterial allegations against one of the defendants. Would you object to it in evidence if it was written subsequent to the close of the case and for the purpose of being used in evidence?
MR. WOOLEYHAN: We would object to it in evidence your Honor if we were somehow prevented from immediately summoning the writer of that letter for cross examination or direct examination, if we had been the first, as the case might be.
JUDGE BRAND: Irrespective of the manner in which this evidence has been presented. Are you content that the Defense Counsel might call and cross examine any of the persons or all of the persons who purportedly made the statements in this exhibit?
MR. WOOLEYHAN: Certainly.
THE PRESIDENT: We shall take a 15 minute recess at this time, and rule upon this afterwards.
THE MARSHAL: Persons in the Courtroom will please find their seats. The Tribunal is again in session.
THE PRESIDENT: The Tribunal is ready to rule upon the objection that was made before the recess. We do not agree with the persecution that this is a captured document or can be treated as such but it appears in two or three places in the document that this was testimony on summons of a witness during the course of an investigation, and it has many of the characteristics or an oath even though it may not expressly state that an oath was administered. There is some reason to think that it had all of the solemnity of an oath and we therefore receive the document.
DR. SCHUBERT: Dr. Schubert for the defendant Oeschey. May it please the Tribunal, after it has been clarified that the witnesses named in the document who have testified, that I may take them into cross examination I merely want to reserve the right to make an application to call the witnesses for cross examination. Furthermore, I want to reserve the right to object to the admission of the--that I ask for the submission of the entire document. I want to use this opportunity in order to facilitate and speed up the trial to ask the Tribunal a question: it has became the practice here in this Court that after these submissions of an affidavit the defense counsel takes the stand and makes an application -reserves the right to cross examine the witness. The Defense counsel assumes that such an application done as a pre-cautionary measure is necessary in order to give the defense the right to make a cross examination. If that assumption should be incorrect -- that is, if it should be correct, then defense counsel has the right to take a witness on cross examination who has submitted an affidavit, after it has been submitted -- he has the right; anyway, I request the Tribunal to tell us whether this is so because if the Tribunal does so such advance applications would not be necessary.
THE PRESIDENT: Answering Dr. Schubert's inquiry, we will state the rule once for all, that when testimony is offered here in the form of a statement or an affidavit, where the witness has not appeared for cross-examination at the time, defense counsel may, if they are able to do so, produce that witness, without notice by the defense, for purposes of cross-examination, and the witness will not be vouched for us their witness. Does that make the rule clear enough?
DR. WOOLEYHAN: The prosecution now offers as exhibit--******************
THE PRESIDENT: (Interposing): Maybe there should be a little more elaboration of that ruling. Of course, it does not dispense with notifying the prosecution when you are expecting to call a witness. What I mean to say is that it is not necessary to reserve the right in advance. I say that, because you may neglect to make the reservation at the time, and we will not preclude you from calling the witness.
MR. WOOLEYHAN: The prosecution then understands, Your Honor, from that later elaboration of the ruling, that we are to expect the same notice from defense when they call a witness as they have to expect from us.
THE PRESIDENT: Absolutely.
MR. WOOLEYHAN: We offer as Exhibit No. 150, Document NG-513.
THE PRESIDENT: It will be admitted in evidence.
MR. WOOLEYHAN: Referring to document book II, page 19, which is a statute published in 1939, Reichsgesetzblatt, Part I, page 1679:
"Decree of 5 September 1939 against Public Economies".
May I interpolate here for a moment? The German word used in this statute in the original, for "public enemies" is "Volksschaedlinge". "Volksschaedlinge" has been variously translated as "public parasites" and "public enemies". The same meaning is attached to both words for the purpose of the statute.
"Section 1. Looting in Liberated Territory.
"Whoever is found looting in liberated territory or in buildings or rooms voluntarily vacated will be punished by death.
"Trials will be hold by the Special Courts insofar as Military Courts have no jurisdiction.
"The death penalty may be executed by hanging.
"Section 2.
"Whoever commits a crime or offense against the body, life or property taking advantage of air raid protection measures, is punished by hard labor and in particularly severe cases punishable by death."
Skipping to Section 4:
"Exploitation of the State of War a Reason for More Severe Punishment:
"Whoever commits a criminal act exploiting the extraordinary conditions caused by war is punishable beyond the regular punishment limits with hard labor of up to fifteen years or for life, or is punishable by death if the sound common sense of the people requires it on account of the crime being particularly despicable."
We will omit the reading of other portions of that statute at this time.
Turning to book III-C, Document NG-739, beginning on page 68, which is page 64 of the German book, this document is an affidavit reading as follows:
"I, Dr. Karl Ferber, District Court Director"-- May I interpolate a moment and state that "Director" there means "Judge"?--"District Court Judge, retired, Nurnberg, here declare under oath:
"I first became acquainted with the case Katzenberger when Public Prosecutor Mark, about the end of July or the beginning of August 1941, preferred a charge in the Penal Chamber against Katzenberger for having committed an offense against the law of 15 September 1935. So far as I remember, Katzenberger was solely indicted. However"-
I beg the Court's indulgence. My mimeographed copy is weak.
"So far as I remember, Katzenberger was charged"-
If I may be permitted to interpolate this sentence, the original states substantially as follows, as will be borne out in later testimony today. What that sentence means is: "So far as I remember, Katzenberger only was indicted and not Seiler. A decision with regard to Katzenberger's appeal against his arrest was to be taken in conjunction with the opening of the main proceedings.
"Thus, a legal examination was to be held to ascertain whether the proceedings against Katzenberger were to be deferred until the interimquestion, that is, whether Seiler had committed perjury or not, had been answered in the course of an ordinary Penal Chamber proceeding.
"On the same day, before I was even able to obtain a ruling from the Fourth Penal Chamber regarding the case Katzenberger, Public Prosecutor Markl withdrew his indictment. On my question why, Markl told me:
"(a) That this withdrawal was not an order from the Ministry, but "(b) Rothaug's demand, because "(c) Rothaug was planning to make a special discriminatory case of Katzenberger under the Public Enemy Decree.
"(d) Rothaug then rejected Katzenberger's appeal against his detention. This I learned through the return of a permit to speak? to the defendant, which I had previously handed to the defense counsel Herz.
"When in those days the case Katzenberger was discussed for the first time in Rothaug's presence, I immediately voiced my doubts about the application of the Public Enemy Decree.
"In the literature it was at that time strongly disputed whether matrimonial offenses, adultery, with the wife of a frontline soldier could be punished under the Public Enemy Decree. This question was denied in principle.
"I also pointed out that the case concerning Seiler's perjury would have to be decided by tho competent Penal Chamber first of all.
"Rothaug immediately announced with all his usual vehemence:
"That this deed of Katzenberger's fell within the sphere of the people in its entirety, that is, this, 'according to the sound sentiment of the people--and this was as an inference of the Fuehrer's Decree--was the deed of a public enemy, apparently, in contrast to other adulterous relationships of a German to the wife of a front-line soldier.
"That in this connection the attitude of the Ministry could be of no interest to him was to be understood. The collective impression which was created by Rothaug's language in describing this as being a criminal case for the Special Court was as follows.
"Rothaug was aiming at bringing the case Katzenberger into line with the police's fundamentally special treatment of Poles and Polish Jews who entered into sexual relations of whatever nature with Germans.
"'The Sector Justice--one of Rothaug's favorite expressions--here has a task which must be solved on a political basis.'
"In this connection, Rothaug also effected that the process for perjury against Seiler should be treated as a Special Court case, and issued a warrant for Seiler's arrest.
"Investigations concerning the suspicion of repented perjury against Seiler were delayed. This is also why the indictments of Katzenberger and of Seiler did not reach the Special Court until about February 1942.
"I remember that there was talk of a 'giant gathering' in the conference room at which Rothaug's satisfaction at having been given this case to deal with could be seen.
"Markl, as he told me at the time, had been told by his chief of office, Schroeder, that he was to endorse in the session n plan in accordance with Rothaug's demnnd.
"The change in the jurisdiction from Penal Chamber to Special Court was therefore brought about by Rothaug. The broadening of the indictment against Seiler to the Special Court was due to a request by Rothaug, combining the two processes into one, which corresponded with Rothaug's demand.
"Once the case had been brought before Rothaug, he developed a remarkable industriousness. The SD and the Regional Leadership (Gauleitung) showed a conspicuously frequent interest by telephone calls.
I heard that it concerned the preparations for the session in the most extensive setting. In conversation ROTHAUG Gave the case a political frame by using the sharpest formulations.
"During the session in the conference room political officers were on considerable display, ROTHAUG had also succeeded in obtaining the attendance of Reich-inspector OEXLE for the session. I remember that cards were issued for the session and that a number of "reserved seats" had to be held at the disposal of ROTHAUG for the party.
"It was quite evident that the efforts of ROTHAUG were aiming at finding a pretext under a semblance of right and to create the prerequisite for the annihilation of KATZENBERGER as a Jew.
"The main trial was used by ROTHAUG to give the audience a national socialist lecture on the subject of the so-called question of the Jews. Defendants and witnesses alike used as objects for questioning furnished the means for this purpose. I no longer remember in detail all that ROTHAUG brought up. The impression remained with me that it was a question of the sufficiently known general phrases in the "Stuermer-style". ROTHAUG as leader of the proceeding talked again and again, whilst the witnesses stated to the little they could say in regard to the matter, by repeating their declarations to the police after being correspondingly reproached. It could be noted how strongly the witnesses laboured under the force of the circumstances imposed on them in that they were brought into a trial which was conducted as an elaborate show.
"In form and contents of the presentation of his arguments to defendants and witnesses during the proceeding in ROTHAUG carried into effect the demand of the National Socialist Party Program for a ruthless prosecution of the Jews through the work of the Reich Security Main Office, RSHA. Every observant member of the audience who was not politically prejudiced there also assisted the office-chiefs of the Nuernberg courts - had to recognize that in the case of KATZENBERGER, formal right placed into the service of political powers proclaimed itself through the mouth of ROTHAUG. During the production of evidence ROTHAUG constantly anticipated the the valuation of the facts conducive to the establishment of the verdict by giving expression to his own opinion.
In this way he was preparing the ground for what would no longer be allowed to expect a verdict against KATZENBERGER other than a death sentence.
"After the end of the introduction of evidence a recess was taken during which the trial prosecutor MARKL, appeared in the consultation room of the judges in order to make sure with ROTHAUG that upon the plea of the prosecutor, the death sentence was expected against KATZENBERGER and a term in the penitentiary against SEILER; the length of the term was also discussed. In view of the presence of the Party leaders in the courtroom, ROTHAUG considered it opportune to give MARKL some hints as to which essential references he ought to use in his arguments.
"The preparations of ROTHAUG for the trial and his conducting of the proceedings constituted in form and contents a violation of my rights to a free judicial decision as an associate judge. It was demonstrated evident how strongly ROTHAUG proposed to go as executor of the Party Offices' desire for annihilation.
"During the consultation I did not fail to point out repeatedly that I did not approve of the fact that the record of such an important case had not been submitted to the Reich-Ministry of Justice before the trial. By this reference I underscored legal scruples I had expressed from the beginning against making it a permanent policy to handle convictions under the Public Enemy Decree, and my scruples because of the unusual procedure of combining the SEILER trial and the KATZENBERGER trial. I pointed out that the chance for administration of justice which provides for an application of the Public Enemy Decree as the facts established in the case is extremely doubtful. Because of preliminary discussions with me, ROTHAUG had sufficient knowledge of these scruples.
"My hints were sufficient to bring about the sharpest opposition on the part of ROTHAUG. "A perjury trial against SEILER before the Second or Third Penal Chamber would have landed the whole matter in the ditch; we do not have to conform to the opinions of the Ministry."
After the end of the trial ROTHAUG did not desist from exerting an influence on the further course of the decisions to be taken.
"After the decision had been established the Reich Ministry of Justice requested by telephone that the records be delivered through a special messenger Consequently the sentence had to be written down in a special hurry; ROTHAUG handwritten notes to the records for the oral announcement of the sentence were largely utilized. Shortly afterwards I heard that the Senior Public Prosecutor Dr. ENGERT of the Office of the Prosecutor General had been in Berlin at the office of the Secretary of State FKEISLER with the records, and he did not notice a favorable acceptance of the sentence there. The abrogation of the sentence through a nullity plea was to be expected, at least a clemency decision as a solution of the case.
"So much greater was the surprise caused several months later by the execution of the death sentence by order of the Ministry.
"At the end of July 1942 I participated in a week's additional training in criminology, at Strasbourg; there Secretary of State FREISLER spoke to me about the case KATZENBERGER and he pointed out to me the legal dubiousness of the sentence based on the Public Enemy Decree. I retorted that the order for carrying out the execution was all the mere surprising. On this FREISLE did not make any comment.
"After my return to Nuernberg I immediately informed ROTHAUG of this conversation with FREISLER. ROTHAUG received the report with a cynical sneer and said "good mercy, had they dared to pardon KATZENBERGER."
"This made it and keepts it a certainty in my mind that by using the Party machinery (SD, Gauleitung and Party Chancellory), ROTHAUG became administratively active and exerted a detrimental influence on the Reich Ministry of Justice in that the death sentence against KATZENBERGER which he had brought about with unprecedented terror was actually carried out. ROTHAUG could easily obtain this influence because Reich Inspector OEXLE had attended the session.
"These statements are the truth and they were made without any corcion. I have read them, signed them and made the declarations under oath."
Signed, Nuernberg, 24 January 1947, Dr. Karl Ferber, Director of the District Court, retired.
The Prosecution offers this affidavit as Exhibit No. 151.
THE PRESIDENT: It will be received in evidence.
DR. KOESSL: May it please the Tribunal, I have just received the announcement of the Prosecution. It has just been handed me that tomorrow in connection with the treatment of the case Katzenberger, Irene Seiler will be called as a witness. In my written application or statement of my point of view I have already said the following in regard to the announcement of the Prosecution that Rothaug - I have emphasized that if the case Rothaug is to be mentioned in this connection, that I object to a closer and more detailed examination of the case Rothaug as long as the defendant Rothaug is not present in court. I do not wish to disturb or interrupt the submission of affidavits and documents. However, the examination of a witness will bring about a more detailed examination of the entire case, and in this case the defendant himself, I believe, should be present. The defendant is at present in a worse physical condition than at the beginning of the trial. Moreover, it seems to me that there should be some way to postpone the discussion of cases of defendants who are not present until such time as the defendants can again appear in court. Moreover, Your Honors, I point to the reasons which I have already submitted in writing.
MR. WOOLEYHAN: May the Court please, a short comment on what defense counsel has just said. On the day that the Prosecution submitted its notice of intention to call the witness referred to, a private conference out of court, although brief, was held by the defense and prosecution, at which time the entire matter of introduction of the current evidence was discussed and it was certainly my understanding at the conclusion of that conference, and I am sure that defense counsel understood it likewise, that we were to proceed with the current evidence both as to documents and witnesses against the defendant Rothaug in the interests of an expeditious trial, allowing, however, subject to the approval of the Court, postponements if need be to allow defense counsel to confer with his client. Apparently that arrangement has been either forgotten or subsequently ignored.
DR. KOESSL: May it please the Tribunal, immediately after the discussion with the Prosecution, I made my written application of the 21st of March 1947. In this application, too, I start with the statement that I do not want to interrupt the presentation of the documents. However, the examination of witnesses, it seems to me, is not desirable because the examination of witnesses, naturally, brings with it a discussion of the case. When the case is discussed, it is my opinion, the defendant, if at all possible, should be present. I told that same thing to the Prosecutor.
THE PRESIDENT: It seems a reasonable request applying to all oral testimony, to have Defendant Rothaug in Court. For a while, as a temporary expedience, this rule should be observed. We made no ruling as to what would happen if Rothaug would not be able to be in court within a reasonable time. But for the moment, we hope the Prosecution can go to certain other matters which will enable that rule to be observed.
MR. WOOLEYHAN: If the Tribunal please, the Prosecution is afraid that a ruling pro tem of the nature just voiced in the case of the Defendant Rothaug does not contemplate the true facts. Defense counsel and also the prison physician told the Prosecution that without any doubt, the Defendant Rothaug cannot be expected to be in court on any basis, even temporarily for a matter of hours, anytime within the next five or six weeks. The Prosecution contends that is not a reasonable time. Such a delay in the introduction of oral testimony is an extreme burden on the Prosecution for the reason that location, transportation, billeting, feeding and care of witnesses is a very difficult task. Once it is accomplished, it is difficult to undo it and then do it all over again. In view of the extreme delay that such a ruling would engender, it is felt that some other provision should be made.
THE PRESIDENT: We do not think it is desirable to go a little farther with this discussion at this time. The physician in charge will be asked to be here to tell us the actual physical condition of the defendant, and we will then be able to make a more reasonable ruling upon this matter.
MR. WOOLEYHAN: One final request, if the Court please. May we have some word of direction as to whether or not we should proceed with our plans of having the witness available tomorrow morning. We will have the physician as you request. Should we also, in the event of a modification of the ruling, which we have no right to expect, but it is possible, have the witness available?
THE PRESIDENT: I think it is desirable, to have the witness available if that is possible. Then if it appears there is going to be a long protracted illness, we might decide to go ahead with the matter. If it will be a temporary matter, the witness can then be advised as to what the prospects are.
MR. WOOLEYHAN: Turning now to page 36a, Document Book 3D, Document NG-154, which is a copy of the Special Court verdict in the KatzenbergerSeiler case.
THE INTERPRETER: Would you please repeat the number of the document?
MR. WOOLEYHAN:NG-154.
THE INTERPRETER: I think there has been a typographical error.
MR. WOOLEYHAN: Would you ask defense councel if they have an extra copy, in German?
"In the name of the German People!
"The Special Court for the district of the Court of appeal in Nurnberg with the District Court Nurnberg-Fuerth have found in the proceedings against Katzenberger, Lehmann Israel, commonly called Leo, merchant and head of the Jewish religious community in Nurnberg, and Seiler, Irene, owner of a photographic shop in Nurnberg, both at present remanded in custody, the charges being racial pollution and perjury in public session of 13 March 1942, in the presence of the President, District Court Director Dr. Rothaug, assistants, District Court Assistants Dr. Ferber and Dr. Hoffmann, and Prosecutor for the Special Court, Markl, as follows:
"Katzenberger, Lehmann, Israel, commonly called Leo, Jewish by race and religion, born 25.11.1873, in Massbach, married, merchant of Nurnberg, Seiler, Irene, nee Schoffler, born 26 April 1910 in Guben, married, owner of a photographic shop in Nurnberg, both at present remanded in custody, have been sentenced as follows:
"Katzenberger, for an offense under Paragraph 2, legally identical with an offense under Paragraph 4 of the decree against Public Enemies in connection with the offense of racial pollution to death, to death, his civil rights according to Paragraph 32-34 of the Criminal Code being forfeited for life.
"Seiler, for the offense of committing perjury while a witness to two years penal servitude, her civil rights being forfeited for the duration of two years."
Skipping now to Page 4 of that document, I read Paragraph 3:
"The defendant Katzenberger is charged with having had continually extra-marital sexual relations with Irene Seiler, nee Scheffler, a German national of German blood. He is said to have visited Seiler frequently in her flat up to March 1940, while Seiler visited him frequently up to autumn 1938 in the offices of the building at the back. Seiler, who is alleged to have got herself in a dependent position by accepting gifts of money from the defendant Katzenberger and by being allowed delay in paying her rent, was sexually amenable to Katzenberger. Thus their acquaintance is said to have become of a sexual nature, and in particular sexual intercourse took place. They are both said to have exchanged kisses, sometimes in Seiler's flat, and sometimes in Katzenberger's offices. Seiler is alleged to have often sat on Katzenberger's lap. On these occasion Katzenberger, in order to achieve sexual satisfaction is said to have caressed and patted Seiler on the thighs through her clothes, clinging closely to Seiler and resting his head on her bosom.
"The defendant Katzenberger is charged with having committed this act of racial pollution by taking advantage of the wartime condition. Lack of supervision was in his favor, especially as he is said to have visited Seiler during the blackout. Moreover, Seiler's husband was called up" -- May I interpolate? In subsequent pages, the meaning of "called up" is purely indicated as having been conscripted for military service -"and consequently surprise appearances of the husband were not to be feared.
"The defendant Irene Seiler is charged with having, on the occasion of her interrogation by the investigating judge of the local Nurnberg Court on 9 July 1941, made deliberately untrue statements and affirmed with an oath that this contact was entirely without sexual motives, and that she believed that to apply equally to Katzenberger.
"Seiler, it is alleged, has thereby become guilty of being a perjuring witness.
"The defendants have said this in their defense:"
Skipping to the last paragraph of that reference:
"Basing herself on this view she made the statement to the investigating judge on 9 July 1941 and affirmed with an oath, that the exchange of tendernesses was, with Katzenberger also, not springing from erotic emotions.
"The defendant Katzenberger: He denies having committed an offense. His line is that his relations with Frau Seiler were purely those of friendship. The Scheffler family " -- which can be seen elsewhere in this document was Seiler's parents -- "in Guben had always regarded his relations with Frau Seiler as such."
Skipping to page 8, which is a continuation of the Special Court's verdict in this case:
"The witnesses Kleylein, Paul and Babette, Maesel, Johann, Heilmann, Johann and Leibner, Georg observed frequently that Katzenberger and Seiler waved to each other when Seiler, through one of the back windows of her flat, saw Katzenberger in his offices. The witnesses' attention was drawn particularly to the frequent visits by Seiler to Katzenberger's offices after business hours and on Sundays, as well as to the length of these visits. Everyone in the house came to know eventually that Seiler kept asking Katzenberger for money, and they all became convinced that Katzenberger, as the Jewish creditor, exploited sexually the difficult situation of the German-blooded woman Seiler.
The witness Heilmann, in a conversation with the witness Paul Kleylein, expressed his opinion of the matter to the effect that the Jew could work off on Seiler cheaply the money he gave her.
"Nor did the two defendants themselves regard these mutual calls and exchange of caresses as nothing more than ordinary niceties of daily life.
"According to statements made by witnesses Kleylein, Babette and Paul they observed Katzenberger to show definite signs of fright when he saw that they had discovered his visits to Seiler's flat as late as 1940. The witnesses also observed that at the end, Katzenberger crept into Seiler's flat rather than walk in in an open manner."
Let me invite the Court's attention to the fact that throughout the verdict, no other evidence on the part of the prosecution than that which I have just read is introduced.
Skipping to page 10 of this document the second paragraph:
"In view of the behavior of the defendants towards each other, as repeatedly described, the Court have formed the conviction that the relations between Seiler and Katzenberger, which extended over a period of ten years, were of a purely sexual character. This is the only possible explanation of the intimacy of their acquaintance."