In the course of the second trial OESCHEY pointed out to the defendant that he really ought to have been sentenced to death already after a previous case and that for such men as he there was no longer a place in the community."
We now skip the next three paragraphs and begin with the last paragraph on page 85 which is on page 90 of the German text. The paragraph reads:
"Towards foreigners, particularly Poles, Oeschey was especially rigorous and here upheld the National Socialist theory of liquidating where nationals of the occupied territories were concerned. I remember a case in which a Polish farmhand was ill treated by his employer and defended himself. Oeschey told the defendant that a Pole was not allowed to oppose a German. He further pointed nut that the country people must be fried from such terrorizing individuals and that capital punishment would be required for the protection of the community. I considered the sentence a monstrous one which was unjustifiable."
This statement is signed by Dr. Herbert Lipps, Landesgerichtsrat. We now offer as Exhibit 228 the Document NG-577.
Your Honor, do I remember incorrectly or has not the last exhibit been received into evidence?
THE PRESIDENT: I am not sure. I will receive it now. Document may be received in evidence.
MR. KING: Thank you. We turn to page 87 in the English text, page 91 in the German. The prosecution at this time introduces the Document NG-650 which will become when formally offered, Exhibit 229. This is a sworn affidavit of Dr. Franz Gros.
"I, Dr. Franz Gros, formerly Landesgerichtsrat, here by declare under oath:
"Soon after ROTHAUG's transfer, in April 1943, OESCHEY became the presiding judge of the Special Court in Nuernberg In general OESCHEY followed ROTHAUG's traces. He was rude and vulgar in his conduct of trials. He even went so far as to shout "you swine" at a defendant who was accused of having had forbidden relationship with a prisoner of war. But this was not the only case of that kind. OESCHEY's jurisdiction followed the political line which ROTHAUG had initialed. In fundamental questions, he would not permit even us, the assistant judges, to divert him from his prejudice. When he was contradicted, he became at once rude. I am convinced , that in case of an open broach with one of the assistant judges, he would not have hesitated to make use of all his political connections. Due to his prominent position in the National Socialist Jurists' League he was constantly in contact with high political officials. OESCHEY almost put into a concentration camp the attorney MUELLER of Nuernberg, because of a statement in his plea, which did not suit him or which appeared to him to be politically derogative. The attorney MUELLER told me so himself. It may be worth mentioning that OESCHEY never, or only very rarely, used to inform us, the assistant judges, about the results of the "guidance" conferences with the public prosecution, as he should have done. Thus one can see, that ho regarded assistant judges more or loss as fillers. In the severity of his sentences he did not differ from ROTHAUG and in this respect he was a deserving representative of the bloody justice administration of the Nazi regime.
"I should like to mention the following cases in order to illustrate his sadistic severity:
The case against KAMINSKA and WDOWEN, concerned two foreigners, who had been working in Germany as farm laborers. KAMINSKA, a 40-year old woman, was accused of having beaten a German soldier and of having threatened his life. The last accusation was founded on the allegation that the Polish woman had intended to kill the soldier with a stone weighing half a pound. In order to be able to justify this opinion legally, OESCHEY had to display considerable imagination. The Polish woman, who had slapped the soldier after a heated discussion, had later, when she unexpectedly met him, thrown a stone at him, without, however, actually hitting him. The following day KAMINSKA had already forgotten about it; she was arrested while working in the fields. Her friend WDOWEN now followed the police official, who was taking the arrested KAMINSKA with him, to the prison cell. There he threw himself on both of them and embraced KAMINSKA with both arms, so that at first the police official could not imprison her; he only succeeded in this with the help of more persons. These relatively harmless circumstances were described by OESCHEY , in the case of KAMINSKA, as a crime of violence and, in the case of WDOWEN, as an act on behalf of a "public enemy" in the sense of paragraph 4 of tho decree against "public enemies" in connection with resistance to the state authority and the attempt to liberate a prisoner.
Thus both defendants had to be condemned to death. Just like ROTHAUG, CESCHEY demanded the severest countermeasures by tho state in such and similar cases, and ho justified this demand by saying that in war time the public security had to be guaranteed under any circumstances. Ho accociate judges were powerless towards such an attitude. It must be mentioned that none of tho defendants had criminal records and that they were eliminated in a most objectionable way by OESCHEY for racial and political reasons Both were executed."
We turn now to the top of page 90 in the English text whch is on tho bottom of page 93 in the German:
"RIEGELBAUER, who had a criminal record, was sentenced to death on OESCHEY's insistence as "public enemy" and as a dangerous habitual criminal. He had pilfered some pieces of a driving-bolt and other things from a bomb damaged factory and some clothes from the unoccupied apartment of his landlady who had moved out. This time OESCHEY again insisted upon the highest penalty although there were extenuating circumstances in favor of tho defendant because of his innate feeble-mindedness. OESCHEY w as of the opinion, that just because of this mental defect, the defendant could not serve tho community and therefore had to be eliminated. RIEGELBAUER was sentenced to death and executed."
"Tho case regarding FRIEDCHEN deals to a certain extent with a similar personality. He too, had a criminal record and had boon sterilized because of feeble-mindedness. But it must be mentioned as, as special fact, that FRIEDCHEN's last offense was still smaller than RIEGELBAUER's. FRIEDCHEN was sentenced to death and executed for pilfering old clothes worth 30.
-RM."
We turn now to the middle of page 91 in tho English, which comes near the top cf page 95 in the German:
"The ease of GIANI SALA concerned foreigners who were accused cf three burglaries. It should be mentioned, that tho main defendant, BERTRAND, was shot during his capture. Altogether 6 persons were accused. One of them was BERTRAND'S German girl friend LEIGEBER. The defendants were convicted as accomplices to a theft committed by BERTRAND. Evidence cf an unambiguous nature, proving the guilt cf tho defendants in the two other thefts could not be obtained. OESCHEY took two objects found in the apartment of the defendants as evidence that both burglaries had been committed by GIANT and SALA. It must be considered, that, while both robberies were extensive , only a linen bag and a towel, things of a very small value, had been recognized by the owners. It must be mentioned in this connection that, tho two main defendants occupied an apartment together with BERTRAND and that tho suspicion at least should have fallen on BERTRAND, especially since ho was known as a burglar. For OESCHEY it was sufficient that GIANI and SALA were friends cf Bertrand, and the fact that they were foreigners particularly induced Oeschey to cast aside all objections serviced by no, and to condemn them both to death. Both were executed."
The statement is signed by Dr. Franz Gros.
We at this time introduce tho Document NG 650 as Prosecution Exhibit 229.
THE PRESIDENT: Tho document will be received in evidence.
MR. KING: We turn now to page 97 in tho English text, or to page 101 in tho German text. This document, NG 664 which we will introduce at this time will become, when formally offerod into evidence, the Prosecution's Exhibit 230.
This is a sworn affidavit of Dr. Hermann Kroher.
"I, Dr. Hermann KROHER, lawyer in Nuremberg, Koenigstrasse 2, hereby declare under oath:"
"Being an attorney in Nuremberg, I often acted as a defense counsel at tho Special Court during tho years 19391944, under the presiding judges ROTHAUG and OESCHEY. I have to state at the onset that the position cf defense counsel was a very difficult and delicate one. A counsel could not plead freely. He even had to be afraid cf getting into trouble with the Gestapo, should he express his views freely without considering the State. He was hampered in the execution of his functions. A defense counsel was often appointed such a short time before the trial that ho could not study the case seriously; a thorough interview with the defendants was not feasible either."
"As a defense counsel I was treated stringently, but correctly, by tho presiding justices during sessions. On the other hand, other colleagues repeatedly complained to me about the inadmissible interference and bad treatment on the part of presiding judges. I, myself, once was reprimanded during a session for a remark I had made. I was denounced for this remark at the Public Prosecutor's office; I learned that this donounciation might have oven resulted in my exclusion from the Bar. Thanks to my friend and colleague. Senior Public Prosecutor Dr. Georg ENGERT, this was not carried cut. As far as I know, a report was oven sent to the Ministry of Justice in Berlin on tho matter. Public Prosecutor MARKL started proceedings against me based on the "Heimtueckegesetz" (Law against Malicious Attacks on State and Party). I was ordered to pay a fine cf 500 Hark by our Association of Attorneys."
"All this shows that a lawyer could only plead with extreme caution and restraint and that the interests of tho defendants naturally suffered. It was extremely difficult to make ROTHAUG and OESCHEY accept any evidence for the defense. There was hardly any time to prepare such evidence sufficiently. A typical example of this was the case of BACHHUBER. I was of the opinion that this was a conflict between BACHHUBER and KOHLBAUER which should be dealt with according to Civil Law.
BACHHUBER had allegedly embozzled KOHLBAUER's money and had carelessly handled tho work with which KOHLBAUER had entrusted him."
"It is possible that BACHHUBER did not carry out this work as carefully as he should have done. There exists no proof however, that he had the necessary knowledge for suck work. Regarding the question of embezzlement, BACHHUBER was of the opinion that first, he was entitled to the sun he kept as his salary; secondly, that he was in a position to refund this amount at any time. I offered evidence on this point, furnished by BACHHUBER's wife, but such evidence was not admitted. OESCHEY was of the opinion that a nan who had boon kept in security detention and who had been sentenced once before, was a criminal and had to be sentenced to death. I am of the opinion that suck a verdict should not have boon pronounced and that the evidence which I offered should have been heard."
We now turn to the middle of page 100; that is page 104 in the German text. It begins with the second sentence from the bottom of the last full paragraph on page 100.
"It was particularly surprising that OESCHEY convicted especially foreigners with severe punishments. One had the impression that he saw these foreigners the ring-leaders of an underground movement, cf which nobody else was aware, except for Mr. OESCHEY."
"In this connection I remember that I defended a few foreigners who had brought into circulation some food coupons dropped by allied planes. In this case it could not be proved either that the foreigners know that the food coupons and been dropped by allied planes. They found these coupons and naturally, they exchanged them for goods. OESCHEY considered this natural behavior of the foreigners, who were quite unaware that it was a punishable act, as political sabotage, directed against the Reich. Thus he satisfied his sadistic desire to exterminate foreigners."
"ROTHAUG and OESCHEY wore fanatical exponents cf National Socialist principles, void of any human fooling. They looked upon every deed on trial before them from a political point of view. In court they treated defendants badly, one can cay abominably. Remarks such as "We shall put your head at your feet," or, "we shall show you how to exterminate criminals", or "we shall not tolerate that you should cause another 1918, occurred daily, and during the interrogation cf tho defendants those remarks pointed to the fact that a death sentence had to be expected. An outward criterion for a death sentence which had to be expected was seen in the fact, too, that such trials were scheduled for Jury Court No. 600 by ROTHAUG and OESCHEY."
"Even if Presidents ROTHAUG and OESCHEY wanted to inflict severe penalties because of their National Socialist mentality, it could be expected from an impartial and human Presiding Judge to treat the defendants properly and correctly. There was no human impulse either in ROTHAUG or OESCHEY. They were brutal in their attitude and behavior towards the defendants, as well as in their verdicts.
This statement is signed by Dr. Hermann Kroher.
We offer now in evidence, the document NG 664, as Exhibit 230.
THE PRESIDENT: The document will be received in evidence. And we will have the adjournment for the day at this time until tomorrow morning at nine-thirty.
(The Tribunal adjourned until 3 April 1947, at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nuernberg, Germany, on 3 April 1947, 0930-1630, Justice Carrington T. Marshall presiding.
THE MARSHAL: Persons in the courtroom will please find their seats. The Honorable, the Judges of Military Tribunal III. Military Tribunal III is now in session. God save the United States of America and this honorable Tribunal. There will be order in the court.
THE PRESIDENT: Mr. Marshal, you will please ascertain if the defendants are all present.
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of defendants Rothaug and Engert who are absent through illness.
THE PRESIDENT: The proper notation will be made.
Are we ready to proceed with the cross examination of the witness at this time?
DR. KOESSL: Yes, Your Honor.
MR. WOOLEYHAN: Mr. Marshal, will you please call the witness Ferber at this time.
(The Marshal summoned the witness.)
DR. KOESSL: May it please the Tribunal, I would ask you to allow me to begin this cross examination.
THE PRESIDENT: Proceed.
CROSS EXAMINATION BY DR. KOESSL (for defendant Rothaug):
Q. Witness, where do you live in Nuernberg?
A. Hofstrasse 37.
Q. Was there in Nuernberg at the court here a judge or a public prosecutor of the same name?
A. Of the same name as myself or Rothaug?
Q. Between 1937 and 1945?
A. Who was it supposed to be, Rothaug or myself?
Q. Ferber.
A. I do not know of any other Ferber.
Q. That is to say, you were the only justice official of that name?
A. Yes.
Q. To avoid a misunderstanding, I should like to repeat the most important dates of your prosecution career, and if there are mistakes, I would like for you to point them out immediately. In 1929 you made your state examination. From 1929 until 1935 you worked in the insurance concern; and on the 1st of March 1935 you began work as an assessor with the prosecution of Nuernberg. On the 1st of February 1936 you became public prosecutor. From the 1st of June until the 1st of October 1939 you were temporarily active in the high prison administration service. From the 1st of October 1939 until the 1st of November 1940 you were public prosecutor. From the 1st of November 1940 until the 1st of January 1943 you were Landgerichtsrat at a special court. On the 1st of January 1943 you became Landgerichtsdirector. From the 1st of May 1943 until the 1st of October 1943 you Were the presiding judge at the special court. From the 1st of October 1943 until the end of 1945 you were the presiding judge of the first penal chamber. Is my statement correct?
A. Yes.
Q. From the 1st of October 1943 until 1945 were you always active in the first penal chamber?
A. From the 1st of October 1943 there were only two penal chambers with the district court, Nuernberg-Fuerth. The first penal chamber was under my jurisdiction; the second chamber under that of Landgerichtsdirector Seifert.
Q. The penal chamber in which you worked - did it take over the task of the fourth penal chamber?
A. The second penal chamber was only the juvenile penal chamber.
Q. Just a moment. Witness, you said you were in the first penal chamber.
A. Yes.
Q. Did the first penal chamber take over the task of the fourth penal chamber?
A. Yes.
Q. Thank you. From what point of view was such service depending upon prior to 1933?
A. From general suitability and qualifications for such service.
Q. How were the qualifications for such service proven?
A. By the state examination and by the qualifications for the service.
Q. After 1933 was it the same?
A. There was a change in so far as I, myself, was concerned for an appointment to the state service.
Q. That was not my question --
A. But I wanted to give that answer and I wanted to give an additional explanation. There was one special political qualification. I did have to get the approval for my appointment from the Reich Supervision Service in Berlin to the Reich service. I did not need special political qualifications for the appointment.
Q. That was not my question, witness. I asked you very Plainly whether the professional career after 1933 depended upon certain conditions, and I believe you said yes?
A. Yes.
Q. After 1933, so you said, in addition there was the political aspect, is that correct?
A. Yes.
Q. Only in 1935 you entered the state service. Why did you not ask for the state service before that?
A. This question I answered when I gave the exposition and I answered it clearly.
Q. No.
A. Yes, I did.
Q. Just a moment. In 1929 you passed your big state examination;
according to your own statement you received your first appointment only in 1933?
A. Yes.
Q. Why not in 1929?
A. I have the document here according to which ay appointment was put back, and that was for the state service in Bavaria, because the Reich Supervision Service in Berlin was the service for which I was interested in. There is my document for proof. I was a candidate for the high court and I was immediately interviewed for such but for my activities in that office I needed a general experience and had to give proof of such experience, and for that reason Bavaria gave me the commission regarding an earlier appointment, but I would not have to take it up immediately. The date was the 1st of January 1934. And when that appointment coincided at the last examination for Grundruch, Bamberg. I refused that appointment. The Bavarian Minister of State for Justice told me that now my name would have to be cancelled from the list of candidates. The documents concerning proof for that period are in my possession.
Q. If I understood you correctly, already in 1929 you would have had the possibility to enter the Bavarian state service as a reward of your state examination in 1929 and which already merited your appointment --
A. In 1929 --
Q. Just a moment --
A. Yes, that is correct.
Q That's sufficient for me. Why, after 1933 did you again try to enter the State Service?
A I did not then try to enter the State Service but merely had to put my intention to enter the State Service because on account of the Bruening Emergency Decree the Reich Office of the Reich Supervision Office in Berlin were cut down and because an earlier appointment for the Reich Supervision Office could no longer be expected. I was in private industry. I was in the insurance concern and I had much better pay there and yet immediately regarding my candidacy for the Bavarian State Office was reacquired by me because I wished to serve in the State Service.
Q Your activity from 1929 until 1935 was, however, an activity in private service and not in State Service; is that correct?
A That is in itself correct but the Reich Supervision Office which exercised supervision of the insurance system could only do to such an higher official who were able to judge our practical work.
Q You therefore regarded your service with the insurance concern as a training for the State Service which you wished to enter later?
A I actually came under the control -
Q Just a moment.
A Yes.
Q Yes or no?
A Yes. I came under the Reichsgerichtdirector of the District Courts in Franken and Munich I.
Q For what reason were you under their supervision?
A I would come under that supervision because my candidacy for the higher State Service ha.d been recognized -- my document and because I had to give proof of my work.
Q Well, you said that you had become a member?
A Correct.
Q At what place and in what unit did you join and who was the leader of that unit?
A The leader of the unit I do not know at all. I describe the occurrence as follows: The person who is taking part at this trial -he was a Ministcrialrat at the time, Engert, told me -- I got in charge of those affairs at the Bavarian Ministry when I presented myself at the Ministry -- that regarding the previous conditions, that is, prior to 1933, no longer applied fully but that political reliability had to be proved as well, in some form.
Q Did you then tell the Ministerialrat Engert at the time -did you present proof that you were a member of the SS?
A I had to produce two witnesses as guarantors of a general nature concerning my positional attitude and in addition I had to prove my political reliability. I did that in writing.
Q As regards your membership in the SS, that is to say, your membership in the sponsoring member, did you prove that to the State Ministry of Justice after your discussion with Engert?
A In an application I mentioned that.
Q Did you not submit that application before your discussion with Engert?
A No, at first I just presented myself and had a discussion at the Ministry which I had with the Ministcrialrat at the time, Kallenbrunnen. Kallenbrunnen made that discussion possible for me and only after that I submitted my written documents.
Q Summarizing, you want to say that the political attitude had considerable significance since 1933 for political service?
A Yes.
Q If I follow your statement, you never worked in the department concerned with civil law but only in the field of criminal law. Do you admit that such exclusive work in the field of penal law thus constituted an exceptional case?
A The exception from the rule I have already mentioned and I have given reasons for it.
Q Would you briefly give us reasons for that action? I can not remember your reasons.
AAfter I had entered the service as an Assistant Judge with the prosecution at Nurnberg-Furth, the Reich Office for Centralization of Justice followed very soon. From then on according to the previous Bavarian custom conditions could not be compared with those after my appointment as a prosecutor. I was kept longer. The prosecution has my application for a transfer to a judge's position particularly at my home in the Palatinate here but aside regardless -- that was also the reason why the prison service -- I wished to get out or as a prosecutor.
Q Now, witness, I never knew that in the Reich Justice Service that work in penal law only was usually. I only know that judges attached to that jurisdiction should work both in that sphere of civil law and criminal law. Am I right?
A No, the centralization of the Reich Service produced the very opposite. For instance, the task of the Centralization Office was that of centralizing the careers. Only Reich Minister of Justice Buettner later achieved -- changed from prosecutor to judge and that such a judge was looked upon with more understanding during the war from 1939. Anyhow, quite different viewpoints were decided.
Q Is it correct, however, that in the sphere of criminal law you worked nearly exclusively on political matters?
A That is not quite correct. Naturally, as assistant judge with the prosecution I was trained in all departments. Therefore, on the basis of my experience in another court, for several months I worked in the Department for Economics and that department in particular was an independent concern and not as a prosecutor.
Q Did you not, yourself, always say loudly that you were the oldest judge and prosecutor and the most experienced judge in political penal matters here in Nurnberg?
A I was in a better position at that time and none of that corresponds to the facts for there were others who had been active for a much longer time.
Q Between 1936 and 1945 when did you not work on political penal matters?
A From 1936 until about the end of the year I did not work on political penal cases. Then I joined that department when Prosecutor Buettner was called up for military training. After his return I stayed in the department because Buettner intended to go on a second exercise. The department was not made my responsibility. I was only prosecutor on duty. The first official appointment I received when Prosecutor Engert left, when I became Landgerichtsdirektor of the district court, and at that time, about '37, two political departments were made into three. Then comes my time in the prison service, and after my return that was the task which called me back. I again came to the Special Court, then the Prosecution Special Court.
Q In effect, between 1936 and 1944 you were for at the utmost only five months not active on political penal cases.
A I estimate the period at a little more than six months.
Q Do you admit that within this sphere of your work on political penal cases you made an unusually fast political career?
A I do not admit that, because by comparison other gentlemen who are not older than I, who did no better work than I, received the same promotion as I.
Q I will now talk to you about Landgerichtsrat Roth. Roth, according to my information, at about 1923 entered state service and stayed Landgerichtsrat, is that correct?
A That was because Landgerichtsrat Roth wished that to be so.
Q Is it not correct that Roth, compared with you, was considerably at a disadvantage?
A No. Landgerichtsrat Roth was -- concerning Landgerichtsrat Straubing, he had long been suggested for that, but he did not accept it because of the fact that he had lost a leg in the war and he said he wanted to stay longer. Furthermore, Gauleiter Streicher disqualified him in a very unpleasant manner, but not through us, but from Rothaug, and that animosity accounted for it that in fact between Rothaug and Roth it resulted in difficulties being male to Roth.
That made it difficult for him to get a promotion from Nurenberg. Outside the Gau Franconia he could long have promotion.
Q He was evidently a judge who expressed a different opinion from the opinion of the others. The case shows that you evidently never expressed a. different opinion; is that correct?
A That is wrong. It is only wrong.
Q In that case I don't understand why you, with the same attitude here in Nurenberg became Landgerichtsdirektor in Nurenberg and Roth did not.
A That is a case which, in the last resort, had to be decided by Landgerichtsrat Roth. That does not concern me personally.
Q Is it correct that your promotion from Landgerichtsrat to Landgerichtsdirektor on 1 January 1943 was a definite preferrment?
A No, there were others before me, some of whom had played a considerable part in the Party, but without any undue pride. They were not stupid in comparing them with others. They had long been promoted. There is a man here who was promoted to Landgerichtsrat when he was only 35, definitely because he was preferred by the administration, and nobody made any noise about it.
Q Witness, you are talking about a man here who evidently had been particularly active for the National Socialist movement. I am merely saying if it is correct that you did not approve the tendency of that day, did you in that case not have treatment of favoritism, comparing your case with that of others of equal standing?
A No. In Munich a man was promoted Landgerichtsdirektor -
Q I do not want to hear of exceptional cases.
A They are not exceptional cases. The Reich administration of justice wanted younger people to come in.
Q Is it correct that usually one only became Landgerichtsdirektor when first of all one had been promoted from Landgerichtsrat to first prosecutor?
A No, you are mistaken about the conditions of the time concerning personalities -- conditions concerning personnel.
Q But you must admit that at least you were treated in the same way as those persons who were considered absolutely unexceptionable, those judges and prosecutors; is that correct?
A What do you mean by "completely unexceptionable"?
Q When I say "completely unexceptionable" I am talking of those who offered no resistance but followed the course.
AAt no time did I fail to speak my mind. What matters is whether in one's statement one has the effect of conviction or not. And Oberlandgerichtspresident Doebig and Landgerichtspresident Keller concerning me personally, they had no difficulties to make.
Q But you said in the course of the examination that it was important that one should be politically unexceptionable.
A The defense counsel is ignoring one point completely. The ministry, concerning suggestions for promotion, asked the political authorities who were locally constant who informed the authorities that it was intended to appoint that person or the other person, to use them on the scheduled opening. If no counterproposal was received at a certain time, the Ministry was free to make its own appointment.
Q Such a counter proposal was bound to come if you had openly expressed your distaste for the National Socialist cause in the administration of penal law?
A That depends on whom you mean by somebody.
Q I mean persons of decisive important for the service.
A The Oberlandgerichtspresident and the Landgerichtspresident Keller will confirm that I at any time when I was only with one person I openly expressed my criticism also concerning the attitude of Rothaug and that I knew that these ministry authorities at the higher places in Berlin tried to bring about a change, to remedy matters.
Q You said that you know Rothaug since 1937. Did you have an opportunity to observe Rothaug's individual character both at work and personally before you were transferred to his office?