A. Very few people from western countries were sentenced to death. I should estimate the number to be about twenty.
JUDGE BRAND: In giving the figures which you have given, you were referring, were you not, to the trials before the Nuernberg Special Court?
A. Only. Only. I only referred to proceedings before the Special Court at Nuernberg.
Q. Witness, you told us yesterday that on the 1st of October 1939 you came as a prosecutor to the Special Court of Nuernberg. Is that correct?
A. 1 October 1939 as judge - no, first as prosecutor. Then at the end of 1940 I was a judge.
Q. And before that time, until July 1939, you were Public Prosecutor with the Special Court?
A. Yes.
Q. Do you happen to know when the defendant Oeschey came to the Special Court in Nuernberg?
A. According to my recollection it was before the war, that is to say, either in early summer, 1939, or around the end of 1938, the beginning of 1939. Yes, that is quite correct.
Q. What was the function of the defendant Oeschey at the Special Court?
A. Oeschey was at this time associate judge at the Landgericht and District Court Councillor.
Q. At that time, shortly before the war, did Oeschey have another position in a court other than the Special Court?
A. Before he came to the Special Court, he was a member of the Criminal Senate. After he came to the Special Court, he was in the same chamber as all the other members of that court. He was a member of the Fourth Penal Chamber.
Q. Do you know whether during the war, or during what time, Oeschey was only with the Special Court part time?
A. Oeschey had a considerable amount of Nuernberg Party work to do. He had a considerable amount of Party work to do because the competent Gaufuehrer of the NSRB had the Chief Prosecutor Denzer, for political reasons, transferred to Chrimmitschau by Minister Guertner. That meant someone had to take care of the work in the NSRB, the National Socialist Lawyers' League.
I know from a conversation with Gaufuehrer Buettner, through Haberkern and Rothaug, that the leadership of the NSRB was transferred to Oeschey.
Q. Witness, we do not want to go into detail. I did not ask you about that. I asked you whether the defendant Oeschey, during the war, and if so during what period of time, did not devote his entire time and work or could not devote his entire time and work to the People's Court?
A. Yes. Due to this activity, Oeschey could only attend one session per week, as associate judge. After he became District Court Director in the spring of 1941, according to my permanent observation, he conducted only one session per week.
Q. May I ask you, witness, what the exact period of time is during which Oeschey's attendance in court was reduced to one session a week because of these extra activities? Can you tell me when that period started and when that period ended?
A. I myself came to the Special Court at the end of 1940. Beginning with 1941 and from then on I made that observation. So the years 1941, 1942, and 1943 until the first of October are included.
Q. You mentioned before, witness, that the defendant Oeschey, for sometime, was transferred to the District Court of Appeals.
A. Yes.
Q. During that period was he at the Special Court at all?
A. During the period of his transfer to the District Court of Appeals I, for a certain period, was the presiding judge at the Special Court. Therefore, I know that I had put Oeschey in charge of one session regularly. He asked me about it one week when he was not assigned. He wanted to know why he did not have a session that particular week.
Q. If I understood you correctly, then also during that period he regularly presided over one session a week?
A. Yes, regularly. That is to say, if there were not enough cases, then there might have been a week when he did not have a session.
Q. Witness, you described the trips of the Special Court to other places. Could you confirm that at the beginning of the war a decree came down from the Ministry of Justice according to which, for reasons of economy and the preventing of difficulties arising through the state of war, witnesses, experts, and defense counsel would suggest that the Special Court, if possible, should go to the very place where the case could be tried because that would be the easiest way? This would avoid transferring or moving many people.
A. That is correct.
Q. Is it known to you, witness, that there were also other Special Courts which traveled considerably, for instance, the Special Court in Munich?
A. Yes, Munich.
Q. That is known to you?
A. Yes.
Q. Did you experience it yourself while you were presiding? Did you, according to your own good judgment, make such trips?
A. Yes. We did, with one exception, however, that I left the large courtroom which Rothaug had selected and returned to the courtrooms of the local justice authorities. I believe that Oeschey left it that way.
Q. Are you informed about that fact that during the period when the defendant Oeschey conducted about one session per week, that is to say, during the years 1941, 1942, and up to the 1st of October, 1943, the defendant Oeschey hardly made any trips with the Special Court and that he very rarely conducted sessions at Ansbach?
A. Rothaug had the habit of taking trips to Ostmark, Regensburg, Straubing, and Schwandorf himself, and he liked to send Oeschey to Rothenburg ob der Tauber.
It occurs to me that Oeschey went also to Weiden and Schwandorf during that period because I was at a session once.
Q. Could you confirm, then, that during this period during which you made this observation, that is, 1941 to 1943, the travels of Oeschey were few?
A. Yes.
Q. Could you also confirm that Oeschey, whenever he did travel, as you have explained, did not go into the large courtrooms, but into the regular local courtrooms, and that he did not select a public that was bound by Party affiliations?
A. As far as such sessions which Rothaug had arranged as presiding judge are concerned, Oeschey had no influence in determining what courtroom was to be used. If, therefore, Rothaug assigned him to a session in Amberg, let us say in the large courtroom of the city hall, then, of course, he had to conduct his trial there.
Q But as far as Oeschey -
AAs far as he was presiding judge later, I do not know where he conducted the sessions he arranged himself.
Q You said before, Witness, that you during the time when you were presiding judge, you moved from the large courtroom into the regular courtroom; and if I have understood you correctly, you mentioned that the problem was the same with Oeschey? I grant you that you personally did not experience that yourself, but you heard Oeschey talk with other people in your department and from these conversations, you should be in a position to tell me whether you know of cases in which Oeschey for reasons of propaganda went into these large halls for sessions?
A No. I do not know of any.
Q Could you tell me whether it is known to you that Oeschey had any connection with the Ortsgruppenleiters or any other party functionaries outside whom he invited to these sessions?
A I have had no such experiences.
Q Were you ever told anything about that?
A Occasionally, Mr. Pfaff, who attended a session in Ostmark told me that kind of friendly relation had been established by Rothaug with the Kreisleiter Schlemmer; however in other places, new relations were not established.
Q Witness, could you confirm that case in which Poles were defendants before the Special Court and since the Poles were essentially agricultural workers, the case was tried outside of Nuernberg?
A Yes. I can confirm that.
Q That is correct then. Can you further tell me or confirm that after 1943, such cases against Poles were no longer tried before the Special Court, but according to the then-existing laws and regulations, they had to be transferred to the police court?
A We were never informed about the legal regulations, but, the Secret State Police, the Gestapo, beginning in the spring of 1943, at the time when Rothaug was still in office, did not transfer any trials against Poles to us any more.
They dealt with them in their own way, the so-called special treatment.
Q The cases of Poles that you mentioned and the number of which you estimated to have been 100, if I understood you correctly, were from the time during which Oeschey conducted a session only once a week when he did a little travelling, is that correct?
A Yes.
Q I see. I have one final question on this point. In 1944, witness, a directive came down from the Reich Ministry of Justice which again dealt with the proceedings of Special Courts at the places where the acts were committed. That directive was very severe and advised the Special Courts that they must go to the place where the deed was committed, and then not only to the place in which there was a courtroom, but to the smallest village and have the session in open if necessary?
Is that true?
A. Yes.
Q. Do you know whether the Defendant Oeschey conducted such trials?
A. I know that the Special Court at Nuernberg, after that, did not follow that decree.
Q. Do you happen to know that Defendant Oeschey, when that directive was published or came to his knowledge, rejected it giving the reason that he was not an exhibitionist?
A. At the time, all of us just had a pitying smile for that decree because courts under local trees did not look well in 1944.
Q. Witness, I should like to come to another point. I refer to the Englbauer case which you mentioned yesterday. You told us, on that occasion that a blackout crime, was assumed?
A. Yes.
Q. The question as to whether the place, itself, was under blackout, is in doubt?
A. Yes.
Q. Witness, do you happen to know that the sentence, at that time, stated that the criminal had an advantage by reason of that fact that the place where he committed the crime was under blackout?
A. That is true.
Q. Can you confirm that that interpretation of the blackout crime was according to the jurisdiction of the Reich Court?
A. That principle had been developed.
Q. Witness, you have stated, today, that the Defendant Oeschey was continuing the activities of Rothaug. That is about what you said. According to your observations, is it not correct to say that while Oeschey presided, a more mild direction was taken?
A. When Oeschey took over the Special Court on the 1st of October, 1943, and was in charge from then on, I, myself, was so far away from the Special Court, though in the same building, that I could not get any closer information. Also, in conversation, I had little opportunity to hear about it.
I only had to attend one session per week. Sometimes, there were only two or three per month. I did hear from one or the other associate judges about the proceedings. I could not say that I have any personal observation that would count here.
Q. No. I did not assume that. I only thought that from reports of other judges, through conversations, you may have heard about it.
A. No. That would not go quite that far.
Q. Have you any knowledge about the fact that in 1944, the number of death penalties was reduced at the Special Court in Nurnberg?
A. No. I do not know anything about that.
Q. Do you know of one case in which the Defendant Oeschey attempted to avoid a death sentence by way of circumventing construction?
A. I have heard of two cases which were discussed at the time.
Q. I believe you refer to the cases of looting which occurred in Nuernberg where two young girls took part in taking goods out of a house which was seriously damaged?
A. Yes. I knew of that case.
Q. Do you remember that case?
A. Yes.
Q. Could you describe it to us briefly?
A. Well, by studying files and from reports by judges, associate judges, I heard that two young girls under 20 helped some people to get their belongings out of a building which was seriously damaged by bombs. The two girls took advantage or tried to take advantage of the situation by each taking one dress. They tried to hide the stolen dress under their own dress.
Q. What was that, witness, as far as the law was concerned?
A. The case was described by the prosecution as "looting" according to the law. I remember that. They were sentenced for "stealing" after denying the term "looting".
Q. Thank you. You mentioned another case before you. You said there were two cases.
A. The other case which left me with a lasting impression was a case which occurred sometime before that. That was a period when Oeschey was not presiding judge. He was either associate judge or acting presiding judge. It was a case in Regensburg where a woman, a member of the Frauenschaft, the Women's League of the NSDAP, on the occasion of a collection of wool during the second winter in the East, that is 1942 to 1943, the first winter was 1941-1942 --
Q. It must have been the winter of 1942, January or February. This woman stole wool from a collection. What was the punishment?
A. The woolen collection, as such, was protected by a special decree, and the death penalty was threatened.
Q. May I ask you to describe to us the term "Special Decree"? What is this concerned with?
A. The threat was expressed -
Q. May I interrupt. I only want to have an interpretation of the expression, of the term "Special Decree" -- Sonderbefehl.
A. The author of that special decree was Adolph Hitler who decided that a person who steals from the wool collection commits a crime worthy of the death penalty.
Q. That was the decree, therefore a law which had been published in the Reich's Legal Gazette....
A. Yes, yes.
Q. Will you continue?
A. Mr. Oeschey in this case -- and I don't know whether he was presiding judge or an associate judge; I could not say that with certainty, that he had something to do with it, I know. He gave her the chance that she could be punished only on the basis of stealing, of thievery.
Q. And you confirmed that in this case. The death penalty definitely was provided by law?
A. Yes, the same as in the cases of looting.
Q. Is it known to you that various sentences which were expressed when Oeschey was presiding judge were appealed against by the prosecution by nullification pleas, and considered too mild by the Reich Supreme Court, and cancelled, particularly if it was the case of malicious intent, malicious attacks instead of under mining the defenses' strength, and if that was assumed to be the case by the Special Court?
A. I, myself, had such sentences cancelled; that is, sentences of mine were cancelled, and after October 1943. I have heard that also Oeschey in one case or another made the experience that of which there are no translations.
Q. Is it known to you whether the defendant Oeschey "fixed up" legal cases in the manner in which it was discussed about in the cases of Grasser and Katzenberger; that after October 1943 such large cases took place in the court room 600 before guests; that is, Party leaders. Is it known to you?
A. No, it is not known to me.
Q. On that occasion I am reminded -- you mentioned this morning that when Freisler was present here in Nurnberg, that he went into Courtroom 581 while Oeschey was presiding over a session in (Courtroom) 600. Do you happen to know that the People's Court, when it came to Nurnberg, always used Courtroom 581, and that, for that particular day, the defendant Oeschey, who usually had his session in (Courtroom) 581, and wanted to have them there, that he had to code that courtroom to the People's Court, and to move into Courtroom 600, himself?
A. I don't know.
Q. That you don't know. You have told us, witness, that in several cases you were an associate judge together with -- while Oeschey was presiding?
A. Yes.
Q. In this case and in other cases which were reported, were you able to determine that the defendant Oeschey followed in his decisions, the decisions of the Reich Supreme Court, and the practice concerning the Ministry.
A. Decisions by the Reich Supreme Court were quoted. The judges' letters, decisions in the judges' letters in most of the cases which had proceeded in one or another case in Nurnberg.
Q. Thank you.
What was the attitude of the defendant Oeschey during consultation? Was it possible for the associate judge to speak freely.
A. The few meetings -- few closed sessions which I had with Oeschey when he was presiding judge and I was associate judge -- and I have thought this over these days very carefully -- were never concerned with death sentences.
They dealt with malicious attacks, malicious incidents, political cases; and there was no considerable difference of opinion.
Q. Have you found out otherwise how the defendant Oeschey treated the associate judges?
A. The younger ones among them remained after the summer 1943 in the Special Court or came to the Special Courts; had very rarely made any remarks in my presence, and, if so, only in the sense that according to their lack of experience they had to remain in the background when Oeschey, for instance, on the basis of his experience and practice, from the time of Rothaug, formed a heavier judgment of weight together with Hofmann.
Q. Did Oeschey together with Hofmann -- didn't they have enough votes anyway against another associate judge according to the law?
A. Yes, they did.
Q. After the defendant Oeschey became presiding judge, you, witness, were still deputy presiding judge on the Special Court?
A. Yes, that is correct.
Q. During that time did Oeschey influence you as far as your duties were concerned, or did he leave you completely free of influence?
A. Completely free.
Q. On the occasion of your conversation, did the defendant Oeschey ever tell you that he did not like to be in the Special Court? Do you know anything about that?
A. About that fact, I know that Oeschey in 1940-41 was concerned about the attitude of Rothaug, and the behavior of Rothaug -- such as were we all of us. But the relations between him and Rothaug improved when Rothaug came to the People's Court as Chief Reich Prosecutor, and then Oeschey stated, "Now we are rid of him, that disquieting spirit."
As far as the activity of the Special Court, itself, is concerned, I did not think that his statements, his remarks were concerned with his activity at the Special Court itself, but the fact that he was working with Rothaug. That, of course, is my personal expression. But occasionally which remarks could be heard.
Q. That is to say that he really liked this kind of work?
A. Well, yes, but that was only during the time that Rothaug was there, and later such remarks did not come to my knowledge.
MR. WOOLEYHAN: May the Court please, the Prosecution does not object to a certain amount of this probing, but we feel that at the moment we are getting too deep in the field of pure personal opinion; that perhaps we might direct the question in other channels.
THE PRESIDENT: It is the opinion of this Tribunal that the crossexamination has not gone beyond proper grounds. Objection overruled.
BY DR. SCHUBERG:
Q. Witness, perhaps you still remember that the defendant Oeschey in 1943, when he came to the administration of justice at the District Court of Appeals, that he expressed his special pleasure about that?
A. About the transfer of Oeschey to the District Court of Appeals, I am of the opposite opinion because Oeschey made the statement at that time that he did not really know what the reason was why he was sent by Rothaug into that part of the judicial machinery.
Q. Witness, I think we may come to -- and on this point if you don't want to make any statements concerning my question, then I will leave it go -
THE PRESIDENT: Dr. Schubert, we have reached the point where we have our usual noon recess, and we will therefore adjourn at this time until 1330 this afternoon.
(A recess was taken until 1330 hours)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 1 April, 1947)
THE MARSHAL: Persons in the courtroom will please find their seats. The Tribunal is again in session.
KARL FERBER - Resumed CROSS EXAMINATION (continued)
DR. SCHUBERT: Dr. Schubert for the defendant Oeschey. May it please the Court, may I continue the cross examination?
THE PRESIDENT: Yes.
Q Witness, I would like to revert to the Englbauer case. I mean the case with the black-out offense. Did you know that at the beginning of the war when the law against public enemies was promulgated and later where the Reich Minister of Justice by a circular decree to the judges and public prosecutors -- the judges and public prosecutors, were placed under an obligation with regard to offenses under the law against public enemies and in the view of the black-out offenses to pass their sentences? Did you know in particular -- are you familiar in particular with a circular decree of the Reich Minister of Justice of 9 July 1941 which says -- I quote: "The penal administration must not cease to treat with extreme severity those whom under the cover of black-out, not to mention air-raid alarms, endanger the security of houses and streets by committing crimes. Offenders who offend in that way as public enemies, to treat them with less severity would meant to offend against our fighting nation. To hesitate to apply the severest punishment, that is quite out of the place here. Are you familiar with that order?
A Yes, I am familiar with it.
Q Do you perhaps remember the phrase in a decree by the Reich Minister of Justice of 12 September 1939, I quote: "Non-application of extreme severity towards such public enemies would constitute a trial against the fighting German soldier?"
A I am not familiar with this decree but this phrase is familiar to me from reading several sentences by Rothaug.
Q Witness, if I understood you correctly you represented the prosecution in the trial of Englbauer.
A Yes.
Q Do you remember the motion you made at the time or demanded the death sentence?
A Yes.
Q Can you confirm to me that the jurisdiction by the Supreme Reich Court concerning war-time laws in the course of the war they became more severe? That the Supreme Reich Court applied severe standards and that in the course of time offenses which originally had been regarded as more harmless came under the more stringent measures of the wartime laws?
A This question compared with the practice of the Special Court at Nurnberg and the presidency of Rothaug is answered in this way; Rothaug was particularly asked concerning those decisions at those courts not to prevent them himself, but to be a champion. He was concerned with the stringency of jurisdiction.
Q Witness, the defendant Rothaug does not interest me much in this question and my question was not aimed at the attitude of the Special Court in Nurnberg in trying to influence the jurisdiction of the Supreme Reich Court. I only asked about the jurisdiction of the Supreme Reich Court?
A The jurisdiction of the Supreme Reich Court concerned the course to which the Special Court of Nurnberg had held.
Q Witness, concerning the activity with the Special Court and your many conversations with your colleagues you have, at any rate, a certain insight with regard to the jurisdiction of the Special Court of Nurnberg in the year 1944. I would like you to remember that fact in giving your reply. Can you confirm that the jurisdiction of the Special Court in Nurnberg, 1944, differed from the jurisdiction of other Special Courts? Did not differ materially from the jurisdiction of other Special Courts? 1430
AA comparison with the jurisdiction of other Special Courts was difficult to make normally. The difference compared with the area of direction of such and comparing it with other course was immaterial. Particularly, as I remember, that, for example, it was discussed in the manner of 1925.
Q If I understood you correctly, you have no proper standard of comparison concerning the jurisdiction of other Special Courts and you are therefore unable to answer my question. Yesterday you spoke about the question as to whether under war-time laws the Special Courts had a certain amount of liberty in pronouncing the death sentence or avoiding it. You said that the Special Court had a certain amount of freedom to pronounce death sentences or not. Can you confirm to me that this political freedom was, in effect, nosed down considerably because every sentence passed by the Special Court could contested by the nullity plea and because verdicts which did not confirm with the jurisdiction of the Reich Court were legally contested and were brought before the Supreme Court?
A Counsel, the political freedom concerned the pronouncing of death sentences. The death sentences were at the first relative quite justifiable. That was done in practice by the way the reasons were given. For example, the two cases which I mentioned; the case of the plundering or the stealing would have connected these two cases, too. They were with clever application of giving the reasons for such sentence but in those cases these sentences were accepted.
Q Witness, then you will admit to me that such clever application was not at all possible? In particular, it was not possible when the Supreme Court had already brought its own jurisdiction laid down for such cases?
AAnd the supreme jurisdiction in its own tradition enlarges -that applied in the days before Hitler -- makes it understood that it should be observed as a guiding line.
Q Thank you. Yesterday you also spoke about the problem of guidance. As far as you know the Ministry of Justice attached great importance to the instructions on guidance and order then, in fact. Is that correct? The judges -- in your view, their directions of guidance, would they regard those directions as a certain amount of aid or help? The Minister of Justice has an entire survey of the entire criminal jurisdiction and that thus the attention of the court was directed -was able to direct the attention of the court to offenses which constitute a serious danger which might be spread like an epidemic? Have you gained any observation or experience in that direction?
A. About that here in Nurnberg an expert from the Reich Ministry of Justice spoke; I no longer remember the name. At that time he gave a talk on the meaning of guidance, and in doing so he said that concerned the RSHA, concerning the general service gained through them; that they were directed into the channels of justice.
Q. Witness, during your examination you mentioned the case in which a defense counsel, Hubert Mueller, had a clash with the defendant Oeschey; you said that clash arose from a motion for evidence. In your view the motion for evidence did not please the other side politically speaking. Do you still remember what motion for evidence was concerned?
A. As far as the details are concerned, I no longer, I do not know the motion for evidence in that case. I do know, though, that in that case, just as in another case of the defense counsel, his name was also Mueller, that was Mr. Mueller twice, Oeschey, as presiding judge, during the refusal, or rather showing his aversion towards the motion for evidence; he had recourse to a certain sort of information which was closed to us the associate judges; that must have been a source of information of the party which was accessible to him and his Gau office.
Q. Witness, under the penal code of those days, was it possible to refuse motions for evidence if they were irrelevant?
A. Yes, that is correct.
Q. As you were an associate judge at that trial, do you remember whether it was a motion of that kind which was irrelevant for the trial as such.
A. Concerning a decision, as such, a decision was not brought about because of after the reply to attorney Josef Mueller, the reply was you can make the motion, but there is always the Gestapo, the Secrete State Police; after that defense counsel gave up his motion.
Q. Witness, in you direct examination, did I not understand you correctly; I remember that you said the defense counsel sustained the motion.
A. First of all, Oeschey did not threaten the defense counsel with the Gestapo, but at first he merely refused; but at first he merely described the motion as politically undesirable.
Mr. Josef Mueller declared, insisted upon my motion for evidence; after that Mr. Oeschey made his other statement. The case is parallel with the case of Attorney at Law Mueller, three.
Q. We had no thought of going into that now; I didn't ask you about that. Witness, I revert once again to my question which you haven't answered yet. The question may be left open whether the motion was formally rejected or not. Do you remember whether it was a motion that was irrelevant or not?
A. I do not remember.
Q. Do you, perhaps, remember whether that motion in the form in which it was put forward might in certain circumstances mean in effect the political danger to the defense counsel?
A. No. The danger could only arise to the defense counsel if the Gau or the Gestapo had been informed by the presiding judge.
Q. Witness, it is not absolutely necessary that the Gestapo should receive information from the presiding judge. In another case you told us that the SD was present in the court room and supervised the trial; that apparently happened more frequently, and that might have been so in this case; normally the state officials did not appear in uniform when they went to supervise a trial.
A. But I am of the opinion that the political authorities concerned would not have made it difficult for Attorney at Law Mueller No. 3 if those motions had been accepted, and a person like Oeschey then would have expressed that it was necessary, for I myself can give an example for that when experts exerted personal influence such an effect could be avoided.
Q. That is your personal view.
A. Yes, my personal view.
Q. Do you also think it possible that remark; There is also a Gestapo was not a personal threat from the defendant Oeschey but purely an objective piece of advice from the presiding judge to defense counsel.
I do not wish to hear your personal opinion; I only wish to know whether you consider that possible.
A. From the position of the defense counsel, Josef Mueller, from the reputation he enjoyed at that time, I am lead to believe that personal advice from Oeschey would have been given in a different form; that is my personal impression.