I would like to ask the Tribunal to give a ruling on this question.
THE PRESIDENT: Does the prosecution propose to introduce the affidavit of this witness at alater time?
MR. WOOLEYHAM: No, your Honor.
THE PRESIDENT: Does any other Defense Counsel desire to cross examine this witness?
MR: WOOLEYHAM: May I say a word in expalanation of this? There are number of affidavits of witnesses appearing in the documents books. That was done for the purpose of assurance because transportation and what have you, being what it is, we are never certain until the morning the witness is in the box that he will actually be able to testify. That is the reason the affidavit are in the documents.
BY DR. BRIEGER: (Defense Counsel for defendant Cuhorst):
Q. Witness, can you give me information as to how many persons the Oberlandesgericht area Nurnberg had?
A. I do not know the number quite exactly, but I would estimate 1,000,000.
Q. You want to say that you might make a mistake of 1,000, but not of half a million?
A. Nurnberg itself has 500,000 inhabitants, and the rest of the area had Regensburg, Bamberg, Ansbach and Straubing, and the others were rural areas.
Q. And the area of the official Court Nurnberg was the same as the area of the Oberlandesgerich Nurnberg?
A. Yes.
Q. Witness, you said recently that the Special Courts outside Nurnberg had a certain ambition to establish a record for speedy trials.
A. That's right.
Q. Can you name such courts, then?
A. That was in 1938. At that time the Special Courts of Essen and Cologne and, I think, also the Hamburg Special Court had announced in the Deutsche Justiz and the Voelkische Beobachter sentences which had been passed a very short time after the commission of the crime.
Q. Do you know of such cases occurring in Sourth Germany?
A. No.
Q. Witness, does the law on the so-called breaking of the legal peace make it necessary that the deed should have been committed for political motives?
A. I believe yes.
Q. And another thing, witness: In view of the fact that you were active in penal matters for a long time as a public prosecutor and as a judge, I must assume that you have a detailed knowledge concerning the fact of who was allowed to assist at executions and who was forced to attend executions. Therefore, I shall split up my question, and first of all I would like you to tell me who was compelled to attend executions.
Tell me whether there were any changes.
A. My knowledge is based upon the secret decision of the year 1937. I myself had to attend the execution of such a penalty. Therefore, I had to study those regualtions closely at the time. The Prosecutor who was in charge of the execution, the official who had been appointed by the Ministry to direct the execution, he was forced to attend. The head of the prison at which the offender was accommodated was also under an obligation to attend, as was the executioner, with his two assistants, and the Doctor.
MR. WOOLEYHAN: May it please the Court, the Prosecution would appreciate it if Dr. Brieger would show us and the Court just how these questions reasonably lead to some point that is relevant to the defense of his client, the defendant Cuhorst.
One more objection, if the Court please. This matter is entirely outside the scope of the direct examination.
THE PRESIDENT: Will you state, Dr. Brieger, how this line of examination is pertinent to your particular client?
DR. BRIEGER: Your Honor, I always endeavor not to put any superfluous questions but to restrict myself to questions that are material, and I am therefore only too pleased to explain the reason for my questions.
In the document book which the Prosecution has already given to the Defense there is one affidavit in which it is stated in reference to my client that he frequently, in his capacity as the president of a Special Court, had attended executions. The view is taken that he never attended such executions during his work as a judge and that he did not even have the possibility to attend such executions.
I hope that I have made it clear to the Tribunal that my question was not without reason, and if the Prosecution should reproach me by saying that these questions no longer belong to the cross-examination, I may prehaps vary that question in this way: As to how these things were handle at the Special Court in Nurnberg, because I must assume that the conditions at the Special Court in Nurnberg are definitely the subject on which the witness was called here by the Prosecution.
MR. WOOLEYHAN: May the Court please, first of all, that affidavit to which Dr. Brieger refers has not been offered in evidence. Secondly, the entire matter was not touched upon in the direct examination, and for those two reasons we think that this question or any others like it should not be asked this witness at this time.
Q Witness, may I ask you whether among those special proceedings against clergymen you remember a case of Herzer?
A Yes, that is the case.
Q Well, was this case, before it was taken to Nuremberg, had it been dealt with before another Special Court, and was it the Stuttgart Special Court?
A That is correct.
Q Witness, do you remember -- I won't say do you remember in detail, but do you remember in outline what sentence was passed at the time by the Stuttgart Special Court in this case and why the nullity plea was raised?
A I do not remember those particulars, and I do not remember them because I myself in my official capacity had nothing to do with the case as such. I only witnessed as a neighbor of Rothaug how the defense counsel of the defendant, an attorney-at-law from Stuttgart, had a tremendous clash with Rothaug in the course of which the rejection and criticism was referred to which has been expressed by the Stuttgart president.
Q Witness, do you remember quite accurately that neither in your capacity as a judge nor in your capacity as a public prosecutor you had anything to do with that case?
A I only occasionally assisted in conversations on that case. Rothaug held the position and Hofman and Pfaff were the associate judges.
Q Do you remember that in that case the Special Court of Nuremberg at the new verdict passed the sentence for custody, whereas such custody previously by the Special Court Stuttgart had been refused in view of the high age of the defendant Herzer, from which the Court concluded that for some time he would no longer constitute a sexual danger. He was 65 years of age.
A I remember that Minister Thierack himself was interested in making the sentences in Munich and Stuttgart more stringent, and that was achieved.
In one case, as far as I remember, the death sentence was passed.
Q Do you remember, witness, in what way that criticism was voiced by Thierack? Was it over the telephone, by telegram, or was criticism received any other way?
AAs far as I know these circumstances, it was a verbal statement concerning the prosecution. I believe it happened in Berlin or when Minister Thierack was here.
Q When Thierack gave his views did he in any way criticize the Special Court at Stuttgart, or was it a strong criticism which definitely expressed displeasure at the sentence which had been passed at Stuttgart?
AAs far as I know, my knowledge only goes as far as this -- it was said the trials at Munich and Stuttgart had suffered from the fact that the more lenient judgment could be explained that it had not been held jointly. Jointly that particular gravity was recognizable and the Munich and Stuttgart trial was sent to Nuremberg.
Q Apart from this case have you in the meantime remembered further cases which were first heard in Stuttgart and then in Nuremberg?
A I myself have never made the acquaintance of the Special Court of Stuttgart, and its president, Cuhorst, curious as it may sound, I never know.
Q Did you ever hear that at the Reichministry of Justice the Special Courts at Stuttgart and Dresden had the reputation for being particularly lenient.
A No. On the contrary, I believe that I can remember that at a conference in Strassbourg in 1942 -- I have already spoken of that conference -- model special courts were mentioned, the sentences of which had been published. Rothaug was always offended that the Special Court Nuremberg never appeared in a publication. The jurisdiction of the Special Court at Nuremberg is not mentioned in Deutsche Justiz, German Justice, nor in the Judges Letters nor anywhere else. But Undersecretary Freisler and the author of the Judges Letters, then later Kammergerichtsrat Schmittleitner in Strassbourg said that for example Essen, Hamm, Cologne, and Stuttgart -- Stuttgart was mentioned too -- were exemplary and that their sentences were suitable for publication.
Q Do you want to say with that that these sentences which were there described as exemplary in their reasons had been particularly carefully worked out?
A I believe that they were also concerned with the fact that the correct punishment awards had been passed which had been sanctioned by the Ministry of Justice.
Q In other words, witness, you mean to say that the punishment award, the reason for the punishment award, had been worked out with particular care.
A The impression was this, that the decisive gentlemen intended to make it clear that the jurisdiction of those Special Courts evidently had been least attacked by the Ministry, and when I say that -- when I say the word "attacked" of course I will always think of political attacks.
Q To stay with this particular subject, Witness, would you, in view of the death sentence, if it refers to a crime against war economy and if it has fifteen pages, would you, generally speaking, call that a thorough sentence or an insufficient one?
MR. WOOLEYHAN: That is a clear request for a personal opinion of the witness.
BY DR. BRIEGER:
Q May I ask you in this way, under your presidence, how many pages did death sentences run to as a rule?
A This makes me think of a statement at the continuation Penal Law Conference in Jena in 1937 or 1938. One cannot buy a painting by the square meter, and one cannot judge a sentence by pages.
Q Yes, I agree with you entirely, witness, that is purely an outward standard, and it also depends on what it says on those pages.
Witness, apart from the Schmidt-Feifel case did the Special Court of Nuremberg deal with other cases of sexual crimes where clergymen were involved, and do you know of such cases?
A In Nuremberg?
Q Yes.
A In a big way -
Q I am not concerned with that.
A Clergymen were sentenced -- Protestant clergymen, too,
Q Witness, another question. Who indicted the defendants and who saw to it that they were brought in?
A I didn't quite got that sentence.
Q Who indicted the defendants and who saw to it that they were brought into court? Was that matter for the prosecution or for the presiding judge?
A The summons and the presentation are a matter for the leaders of the prosecution.
Q If the defendants are brought in, in particular, if the defendant is led in and if there are any incidents, is it the Prosecutor who is responsible or is it the judge who is responsible?
A That needs a preliminary question, and that is that the presiding judge decides the place where the trial is to be held. If the prison and the court house are not on the same spot, then naturally the transfer from the prison to the court house is the responsibility of the prosecution authorities.
Q Witness, one last question. May I ask you how far your denazification trial has proceeded? Are you under any political burden?
A Concerning the general regulations, of course I have been at the Special Court.
Q Are you intending to take any statements or some of the statements which you made here before this court, to use any of those for your defense at your own denazification, if it should arise?
A In a denazification trial -- my denazification trial has already got as far as the date being fixed. As soon as I have been heard here as a witness my trial can come to an end. That trial itself -- I do not know whether I can get any documents from this trial.
MR. WOOLEYHAN: Objection. May it please the Court, in view of this attempt to impeach the witness' testimony I suggest that any attempt at impeachment be done by counsel for Rothaug or Oeschey when the time comes, in view of the fact that Dr. Brieger has not made at all clear, so far as the Prosecution is concerned, the relevance of his interrogation of the witness in the first place.
DR. BRIEGER: The motive for my question, I shall be pleased to explain, is that my client thinks and thinks seriously that on the basis of existing documents, judges who were with Cuhorst at the Special Court in Stuttgart had the intention to make statements against Cuhorst and shift a great deal of the responsibility on him so that they themselves in their denazification trial, which is approaching, will appear as having borne lesser responsibility. Surely the Tribunal will understand that for judges who at that period were members of the Penal Administration of Justice it is simply a question of life and death as to how they will emerge in the near future from the denazification trial.
MR. WOOLEYHAN: One final word, may it please the Court, I hope the Tribunal realizes, and I am sure it does, that there is absolutely no connection between the prosecution here and the denazification court. There has been no arrangement made and we know nothing whatever about the denazification proceedings against the witness nor will we in future make any connection.
DR. BRIEGER: May it please the Tribunal, I would not have permitted myself to ask this question if it were not of considerable importance, of decisive importance. By that I do not mean to say that definite untruths need to be spoken but it is obvious that things might be colored in this or that direction. In other words, without speaking an untruth things may be given a certain color.
THE PRESIDENT: We will take a recess of fifteen minutes at this time.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: The Tribunal overrules the objection.
DR. BRIEGER: Gentlemen, I should like to take the liberty to deal with one complex of questions quite briefly.
BY DR. BRIEGER:
Q. Witness, if I understood you correctly, you have stated during your testimony here that in one case -- I believe it was the defendant Grasser, -- Rothaug and Streicher attended the execution, and that this was against regulations. Did I understand you correctly?
THE PRESIDENT: One moment, please; one moment. There seems to be some misunderstanding. The Court does not approve of further examinations about who attended the executions. That objection was made earlier, and that objection was sustained. You should not proceed with that line of examination.
DR. BRIEGER: In other words, Your Honor, if I understand correctly, I am not supposed to put any questions which are concerned with executions?
THE PRESIDENT: That is correct. That is to say, not as to any testimony as to who attended executions.
DR. BRIEGER: May I put the question in such a manner, Your Honor, as to who was permitted to attend executions and what the legal basis for that is?
THE PRESIDENT: No, no.
MR. WOOLEYHAN: Are there any further Defense Counsel desiring to question this witness?
THE PRESIDENT: Are there any other Defense Counsel who desire to cross-examine this witness?
DR. DOETZER (Counsel for the defendant Nebelung): May it please the Tribunal, Dr. Doetzer for the defendant Nebelung. I have only a few questions to ask the witness, and I ask for the permission to continue the cross-examination.
THE PRESIDENT: Sustained.
I Apr 47-A - 20-2 - LJG - Schwab (Int. Uiberall) CROSS EXAMINATION BY DR. DOETZER:
Q. Witness, in the Direct Examination you were asked about the manner of proceedings displayed by Rothaug, and you were asked to make a comparison with the proceedings as conducted by the president, the presiding judge of the People's Court. I should like to ask you the following: Apart from the one session which you have described to us, did you ever attend any other session of the People's Court -that is, as spectator, an on-looker?
A. No.
Q. If I understand you correctly, therefore, only that one session which took place in this courtroom several years ago?
A. Correct.
Q. Therefore, you did not know the film which was shown here?
A. Yes, I know the film.
Q. How is it that you know the film, witness?
A. On Saturday -- last Saturday -- I was here, and, through Room 10, I received a pass to enter and to look at the film.
Q. Then you actually took part in the session of the court without the Defense, Prosecution of the Bench knowing about it?
A. That I don't know; I don't know whether the Court, the Bench didn't know me.
Q. I consider it reason for concern that a witness who is supposed to be a witness in a later session has an opportunity before he comes into the courtroom as a witness to take part in a session, and then to be asked about questions about the conduct of a People's Court, proceeding by Freisler which he has just become acquainted with during that session which he attended here.
MR. WOOLEYHAN: May it please the Court, the session on Saturday was open to the German public as well as to the American public. Surely the Prosecution can have no control over who goes into that courtroom or who doesn't; nor are we responsible for distributing tickets. Secondly, the witness yesterday, with regard to the conduct of the People's Court trial by Freisler, was carefully asked only with regard to the People's Court session that he attended in this room, personally, during the war, and not as regards any film.
THE PRESIDENT: There is nothing we can do about that. You may proceed with the cross examination.
BY DR. DOETZER:
Q. Witness, if I understand your answer correctly, you did not take any opportunity to listen to the senate of the People's Court under the presidency of Dr. Kronin, the deputy?
A. No.
Q. If I understand you correctly, if you answer to the comparison made by the prosecutor that the manner in which the proceedings were conducted by Freisler was "milder" than the proceedings under Rothaug.
A. "Milder" isn't the right expression; "more leniently." But, politically, Rothaug was in a position where he drew on more political experience whereas Freisler used his voice and the strength of his voice. I have pointed that out.
Q. I didn't quite understand that and I just wanted to elaborate on it. Was the manner in which Freisler conducted the sessions in the film -- was that the same as here in this courtroom under Freisler?
A. The impression, by comparing what I saw Saturday with what I knew when I was here, was the same. In other words, it was intolerable, yes.
DR. DOETZER: Thank you.
THE PRESIDENT: Do any other Defense Counsel desire to cross examine this witness? ... Apparently not. Have you any further questions, Mr. Prosecutor?
MY. WOOLEYHAN Very few, if the Court please.
REDIRECT EXAMINATION BY MR. WOOLEYHAN
Q. Dr. Ferber, on cross examination you stated that while Rothaug was still presiding judge at the Nurnberg Special Court -- that is, in the Spring of 1943 -- from that time on Poles were no longer transferred to the Special Court as a matter of course, but were handled without trial by the Gestapo. Is that true?
A. Apparently a small difficulty has to be cleared up. In the case of the Gestapo, that was not a trial at all because that special treatment by the State Police was really an administrative matter, and it was work that they had to send an inquiry to Berlin to the RSHA to get authorization from there according to the case.
Q. That is clear. However, I am interested -- I merely wanted to establish once again your statement that after the spring of 1943 Poles were no longer tried as a matter of course in the Special Court in Nurnberg; is that so?
A. Only those canes were dealt with here which had already started; new cases did not come up any more.
Q. If that is so, then of what nationality were those foreigners that were tried by the Special Court in Nurnberg under the presidence of Oeschey which you described this morning.
A. These foreigners in 1944 and in the beginning of the year 1945 as far as they were tried were from the western countries, that is to say, Yugoslavs, Ukrainians also who were not Poles; one made a definite dividing line, not according to the citizenship but they referred to belonging to a certain people.
Q. In addition to these Yugoslavs, Ukrainians, etc., that were tried by the Special Court in 1944, and early 1945, did any other foreigners appear before the Special Court?
A. Italians also.
AAlso Italians.
A. Yes, yes.
Q. In the case of Therese Mueller which has been discussed today, it developed during the cross examination that when the Reich Supreme Court sent that case back to the Nurnberg Special Court to be tried again, that the Reich Supreme Court in their opinion directed that the death penalty was mandatory. Now, Dr. Feber, when the Mueller case was tried the second time, was there any possible way in which the presiding judge could have avoided sentencing Mueller to death?
A. I can answer that question concerning defense counsel on that question by explaining that one could distinguish, one could determine whether according to the judgment the character of Mueller and based upon the motive, whether that was exhaustive enough and whether it was in addition to the reasons given in the first opinion and could have been used to ask for clemancy as to how far in that direction there existed any loop-holes can be seen from the opinion as a whole.
Q. In addition to legal loop-holes the presiding judge could decline to preside in a given case, could he not?
A. If the case of that kind was sent back to the Special Court, had been sent back to the Special Court from Leipzig, then it was mandatory that the case had to be tried again before the Special court, and the presiding judge of the Special Court could not decline to sit on that case; is that what you mean?
A. He could assign somebody else, but the case could not be refused from the Special Court.
Q. I understand that, but you did say just now that the presiding judge could assign some other judge to sit on that case; is that true?
A. Yes.
Q. A while ago it was brought out that Oeschey had showed leniency in two cases, and two cases were given as an example; one of them was of two cases, and two cases were given as an examples one of them was of two young girls, under twenty years of age, who had each looted one dress from a destroyed house; the other case was the case of the filching of a pair of gloves in Regensburg. I understood from your description and the defense counsel's discussion of those two cases that the death penalty was not pronounced in either case, and Oeschey presided in cach case. Now, Dr. Feber, tell the Court, if you can, does that mean that Oeschey could avoid pronouncing the death penalty in cases of looting if he was so inclined?
A. Avoiding the death sentence in cases of violation against the regulation pertaining to looting, that represented a possibility which was thought of by legislators and as far as legal literature was concerned found a great deal of acceptance.
That lead to discussions as to when one can speak of looting; it showed the true accuracy of my point of view that the laws which related to the death penalty, even these laws provided the possibility to avoid it. It was only a question as to how in individual cases one wanted to look at it.
Q. Thank you. Dr. Feber, after Rothaug loft Nurnberg for Berlin, for several months you acted as presiding judge, and were later succeeded by Oeschey; why?
A. Correct.
Q. Why were you dropped as presiding judge in favor of Oeschey?
DR. SCHUBERT (Attorney for Defendant Oeschey):
May it please the Tribunal, I protest against this question. The question was not put in direct examination; it was touched upon in the cross examination. Therefore, I believe that the prosecutor could not put this question now.
THE PRESIDENT: It seems as though he would have no means of knowing why unless he were a mind reader, and therefore that it is beyond the scope of the testimony -
MR. WOOLEYHAN: May I re-phrase the question, your Honor?
THE PRESIDENT: Without objection we will rule on it.
BY MR. WOOLEYHAN:
Q. Was any official explanation ever made to you of why Oeschey was made presiding judge on the Nurnberg Special Court, despite the fact that you had been acting in that capacity?
A. Yes. May I answer that question; am I permitted. The President of the District Court of Appeal competentl his name was Emmert. During an official trip that I made rumors had circulated that I be transferred, and had already sent this disposition through channels. After my return I was told by other judges, I was informed about that circular letter which caused me to go and see the President of the District Court of Appeal, Emmert, and immediately asked for an explanation what had caused, or what may have caused that to come about.
As far as the appointment and leaving from the office was concerned, the President of the District Court of Appeal was competent. He told me that political reasons made it seem desirable to him because the Gau and in the Gau executive office, and it was considered desirable to have Oeschey appointed President of the Special Court on the basis of his connection with the Gauleiter, that would be personally an advantage for me to avoid any political attack on the manner in which I would conduct proceedings.
Q. It has already been described by you that on one of the trips that the Special Court Nurnberg made to other surrounding cities and towns that it went to Kahn and that you would attend sessions in Kahn.
A. That is correct.
Q At any time while you were in session at Kahn, in your presence, did Oeschey ever compliment Rothaug on his conduct of trials?
A I remember one extensive session in the town hall in Kahm, that was in the year 1938; it may have been 1939; but at any rate before the war. The matter in question was that the Pastor of the Diocese of Regensburg was put before the Special Court to account for the sermon which he had delivered in Kahm. The Priest had a brother, who hold the office of a Gauleiter in tho HSDAP, who had been in that office; I do not recall his name; and that priest upon a request of the political office in Kahn was not brought to the hearing in the court room of the local court, but in the large hall in the town hall building, and in the presence of the entire political staff of the Kreisleiter Schlemmer, himself and others, and upon the specific request which you have put to me, I have to state that I know that Rothaug at the time received a sort of encouragement by Oeschey as far as political ideology and application of it by putting ideological questions and points against the clergy influence; that he was encouraged to do so which caused Mr. Rothaug after a lengthy intermission as we used to say, to lot his phonograph records run again.
Q You say, Dr. Feber, that during the intermission Rothaug received these encouragements on his ideological utterances; who gave those encouragements to Rothaug?
DR. SCHUBERT: (Attorney for Defendant Oeschey) May it please the Tribunal, up to now I have not protested against these questions, but since it appears that the questions are going into further details in this matter, I feel obliged to protest, and give the same reasons as I gave before.
I do not remember at all that during the direct examination or the cross examination any case of this kind was discussed, and I believe, therefore, that it is not admissible to have this matter discussed now afterwards.
THE PRESIDENT: We will not interfere with the examination at this time.
BY MR. WOOLEYHAN:
Q Answer the question, please.
A I don't quite remember the question now. I believe, if I remember correctly, you wanted to know who it was who gave that encouragement.
Q. That is right.
A It was an intermission, recess, and as public prosecutor I was active public prosecutor during that session.
JUDGE BRAND: Mr. Witness, counsel asked you who it was who gave the encouragement. Why don't you answer it directly, if you know; if you know tho name, state it.
A Oeschey, Mr. Oeschey.
MR. WOOLEYHAN: I think that concludes my re-direct examination.
THE PRESIDENT: We inquire at this time whether any other defense counsel desires to have further cross examination of this witness, at this time.
This apparently brings us to the question of when the cross examination shall begin. Of course, I have heard Dr. Koessl this morning that he would be ready if he had the transcript today. It is desirable to have the cross examination proceed as promptly as possible, but we will not hold you to any hardship at all, so if you don't get the transcript, we will not ask you to conduct your cross examination tomorrow. Does anyone know how far the transcript has progressed in the German language?
MR. WOOLEYHAN: The Prosecution could have no way of knowing; it is a matter handled by the Secretary General.
THE PRESIDENT: I think that it is very apparent that we cannot fairly ask the cross examination to proceed tomorrow morning. No will try to have it proceed the day following, and we hope that tho transcript will be in the hands of the Defense Counsel to permit them time to do that.