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.
Q. Was the personal reputation of Mueller so great that
A. No, bad, politically speaking a bad reputation. All the more it seems likely that he needed advice, and if an attorney at law, Mueller, had had a good political reputation, in that case, I think that the advice given to a holder of the Golden Badge of Honor would have taken a different form.
Q. We will leave that now, witness. In another case you mentioned that the so-called SD of the Security Police, which evidently assisted in the trials, in the conduct of the trials, criticized a remark by Oeschey; about when was that?
A. In the year 1942, before August, 1942, at that time I still had room 139, which in the autumn after the air raids was moved.
Q. Can you say whether it happened frequently that trials were supervised by the SD. Every session was normally supervised, was it not?
A. Rothaug personally told me that not once, but repeatedly. He said that reports by the SD were made; it was mentioned that a report was made on the conduct of the trial, on the effect of the conduct of the trial on the public, and on the impressions which was made on the public by the sentences passed. I would like to add Rothaug introduced a system of sending a report to the Stimmungsberichle, the SD authorities, and that report told them where sessions would be held and what cases would be dealt with.
Q. And this supervision by the SD referred to all practices at the trial, the judges, the prosecutor and the defendants?
A. Yes, it even referred to the audience.
Q. Witness, you mentioned the case of Therese Mueller.
A. Yes.
Q. In that case, you first of all as presiding judge of the Special Court passed a sentence for five years in the penitentiary; is that correct; what legal provisions did you apply?
A. Paragraph 5 of the Wartime Penal Code, and an application of extenutating ruling for less grave cases.
Q. Can you tell the Court what it says in Paragraph 5 of the Penal Code?
A. Paragraph 5 of the Wartime Extraordinary Penal Order comprises three sections; self-mutiliation, holding back from military service, misguiding others to stay away from military service, persuading others to undermine discipline in the armed forces, and not to adhere to discipline.
Q. I believe those are the most important provisions; which provision of the three applied here?
A. Misleading others to desert.
Q Do you know the penalties threatened in paragraph 5?
A The penalty threatened is always a death sentence. Section 2 lists various cases which can be passed for penitentiary. The death sentence, first of all, is always applicable.
MR. WOOLEYHAN: If the Court please, could we have the Reichsgesetzblatt citation for the statute to which Dr. Schubert now refers? I am in confusion as to which part it is.
DR. SCHUBERT: Yes.
Q Witness, you mentioned that in your sentence you assumed a less grave case?
A Yes.
THE PRESIDENT: One moment. If you gave the reference to the Reichsgesetzblatt to the prosecution, we would be glad to also have it on the bench. Do you have it?
DR. SCHUBERT: Will you forgive me? May it please the Court, we are concerned with the Extraordinary Wartime Penal Order in the version of 1 November 1939, Reichsgesetzblatt 1939, part 1, page 1455. If I may go to my seat for a moment, I will find the place in Document Book 2 where it is to be found.
MR. WOOLEYHAN: Dr. Schubert, never mind. It is on page 17 of Document Book 2, the statute against undermining German defensive strength.
Q Witness, you said that you assumed a case of lesser gravity. May I put it to you that in your sentence you said -- I am quoting: "Considering the extraordinary gravity of this offense, only one extenuating circumstance arises; that, as a mother she was afraid for her son's life. Only that circumstance makes it possible in such a crass case to refrain from the death sentence."
Do you remember that?
A That was the decisive reason for passing a penitentiary sentence.
Q Are you familiar with the sentence of the Supreme Reich Court?
A Yes.
Q Can you confirm that the Supreme Reich Court cancelled your sentence just because you had not passed the death sentence, although you had not assumed the case of lesser gravity?
A In that form I do not remember the contents.
Q Surely the sentence was presented to you when you were examined?
A So it was.
Q But that is not a question, sir. I won't put this to you. When you reply to me now, will you say the Supreme Reich Court cancelled your sentence because you had not expressly assumed in your verdict a case of lesser gravity, and because the Supreme Reich Court established that the fact that the mother feared for her son's life was not to be regarded as a case of lesser gravity? Have you understood me?
A I do understand you, but as far as my knowledge of the reasons of the Supreme Reich Court goes, this should not be exclusively decisive but as sufficient reason should have been given for the relation of the political motive to the human motive, and which motive had priority. That is how I understood the reasons given by the Supreme Reich Court.
Q May I put the following two sentences to you? Then it will be easier for us to reach understanding. I quote from the sentence by the Supreme Reich Court:
"The establishment of a case of lesser gravity requires, in view of the particular danger which rises from undermining the defensive strength, requires a careful examination and a clear and convincing reason which does not appear in the sentence which is being contested. The circumstance that the defendant as a mother feared for her son's life alone cannot justify the assumption of a case of lesser gravity." Is that clear?
A Yes.
Q Witness, do you know that at the second trial in which you were surely interested, new factual elements did not emerge? I believe you confirmed that today.
A I was able to confirm that on the basis of facts which I established only after the trial, for at the trial itself I was not present, not even in the audience.
Q Can you now admit to me, witness, that after the Supreme Reich Court had decided that the mother's fear for her son's life alone did not justify the assumption of a case of lesser gravity, at the second trial, however, new extenuating circumstances; that is to say, circumstances which had not been presented at the first trial, did not emerge; that under those circumstances the second court could not decide differently -- could decide in no other way than by passing the death sentence?
A I don't know whether it was attempted to find out to what extent such things occurred, generally speaking, whether in order to deter people it was necessary. In any case the reasons of the Supreme Reich Court show that a careful examination was considered necessary, and in my view everything depended on the reasons concerning the Communist attitude of the family, which brought this Communist interest to the foreground or relegated it more to the background.
That had been a problem under discussion at the first trial.
Q Witness, may I interrupt you? You arc not giving a clear reply to my question. It is like this. The Supreme Reich Court concerning the only reason of excuse which you too had stated as the only reason for an excuse; that the Supreme Reich Court rejected that reason because that excuse was not sufficient to assume a crime of lesser gravity. That is clear, isn't it, after what I read out here? Furthermore, it is like this, and will you take that into account because you did not take part at the second trial. Assume, therefore, please, that further excuses did not emerge. What sentence did have to be passed then?
A Well, the law itself threatens the death sentence. It depends, and it depends decisively on the fact whether, if the relation from mother to son under the reasons for the sentence by the Reich Supreme Court were not sufficient, whether in addition something could be ascertained, whether there was anything to be ascertained, but I don't know that. I don't know that.
Q You don't know it, and you needn't tell us anything about it.
A I was not present at the trial.
Q But I am asking you again, if no further points of view for mitigating circumstances did arise or could be brought to light, what sentences did have to be passed?
A If no further moderating influences concerning the assessment of the personality could be found, if in that direction every possibility was exhausted, in that case under the reasons given for the sentence by the Supreme Reich Court the one reason, the reason of humanity, the mother and son reason, would not have been sufficient.
Q What sentence did have to be passed then?
A Well, the sentence which was prescribed; that was the necessary consequence.
Q That is the death sentence?
A Yes, the death sentence.
Q Witness, you told us that at the second trial the judges were not the same?
A Only one associate judge was also at the second trial.
Q But two other, judges?
A Yes.
Q Can you confirm to me that it is customary if a case, after the sentence has been cancelled is sent back from the Supreme Reich Court to the court in the first instance, that the court then is composed of different judges?
A Yes, that was the general custom. That had formerly also been the custom when cases were revised.
Q I now come to the case of the ration cards. You know that case, witness, you have heard about it?
A Yes, I only know it from heresay.
Q You were not present at the trial? Did you see files on that case? Do you remember that in the place where the cards were found; that is to say, on the spot where these foreigners had found the ration cards, that on that spot whole parcels of ration cards were lying around which could only have originated from an allied plane which had thrown then down? Do you know how many of these cards were taken? Do you know that only the main defendants were sentenced to death?
A. I have said that only some of the defendants were sentenced to death.
Q. You left it open, but can you now tell us only some of the other defendants were sentenced to terms of imprisonment. Do you know witness by chance that in this case that he -
MR. WOOLEYHAN: If the Court pleases, the questions asked the witness concerning this last case have not been supplied by the witness, but by Counsel; and if the questions cannot be answered we object to the introduction of the answers by the Defense Counsel.
THE PRESIDENT: That is the rule, and if the Defense Counsel has infringed upon this rule, then the Defense Counsel must be admonished.
DR. SCHUBERT: May it please the Tribunal, I ask your forgiveness if I have infringed upon the ruling; but, I must say quite frankly that I was not aware of that. May I continue?
Q. Do you know, Witness, whether in this case with the foreigners, the prosecution was given instructions from the Reich Ministry of Justice to ask for the death penalty for all of the defendants?
A. I do not know that.
Q. I am now going to speak of the Braun case, Were you able to see the files about that case?
A. At what time?
Q. At the beginning of the trial.
A. As far as the first main trial, it was conducted by Ocschey, and I was able to see the files there -- once in connection with a motion by the defense counsel, as his deputy, I did see the files.
Q. That was at that time?
A. Not now, no.
Q. You have testified von Braun said at that time that it was time for the government to finish the war if it was not able to prevent such air raids; is that right?
A. As far as the sentence goes, yes.
Q. Do you know whether the defendant Braun made further statements in that connection at that time?
A. Yes, he made several remarks. The full meaning is the same as the meaning that I have just outlined.
Q. What year was that?
A. 1944 -- it might have been at the end of 1943.
Q. Witness, when was the end of the air raids in Nurnberg?
A. Well, we had raids in 1942, 1943, 1944, and 1945. One thing I know for certain is that I was sitting in Room 130 when I saw those files; that was, therefore, the time between 1 October 1943 and until the last summer of 1944.
Q. Thank you. Can you confirm to me, Witness, that such political statements during the time, from 1 October 1943, you were subject to advice by the Ministry of Justice?
A. In this case, the Prosecution, in paragraph 2 of the Malicious Acts Law instructed the Prosecution under that act, and had been given by the Reich Ministry of Justice; otherwise the Special Court's would not have been able to deal with this case.
Q. Do you know what else the Reich Ministry of Justice said in that instruction?
A. I do not know.
Q. Do you know, witness, whether the Reich Ministry of Justice in its instructions to the prosecution authorities expressed an opinion of doubt that the undermining of the defense strength had to be examined urgently?
MR. WOOLEYHAN: The Witness has stated he does not know the answers to this line of questions; therefore, should the Defense Counsel be allowed to lecture on that question?
THE PRESIDENT: We will overrule that particular objection. Proceed.
Q. Witness, please answer my question. Do you know that?
A No, I do not know it.
Q Witness the Court asked you a question that was in connection with the penal order against Poles. My impression is that possibly there are some misunderstandings, and I should like to clear them up by putting a question to you. Under the penal orders against Poles was it possible to sentence all foreigners or only a certain category of foreighers?
A Only Boles.
Q Thank you.
DR. SCHUBERT May it please the Tribunal, I have finished my cross examination, but I should like to use this opportunity to ask the following question: The witness is the second witness here who has been called by the Prosecution and who, at the same time, has an affidavit; an affidavit which has been present also in the documents, which so far has not been read to the court and which has not yet been accepted in evidence, The previous witness was the witness Goeringer. At that time in the case of Goeringer, he was only here on a certain group of questions and I did not give my attitude to the questions which arose from that examination; but, as the Witness ferber was asked general questions, I should like to take the liberty to ask the following question: The witness in the affidavit which I have before me, concerning the defendant Oeschey, had made a statement on a number of facts which were not discussed under direct examination here. If the Prosecution intends to present the affidavit of the Witness, that would make it necessary for me to make a motion to ask the Witness for another cross examination on these new facts which would result from the witnesses affidavit. I should like to point out -- I should like to point this out because there is no doubt this would delay the trial. I, for my part, am willing in case the witnesses affidavit should be presented today or if the witness was to be examined on the affidavit, I am prepared for my part, to cross examine the witness on these matters, and I believe, thereby the trial would be accelerated.