A police officer who was questioned, made statements on the basis of various interrogations. These statements alone did not prove the two defendants to be the culprits. This was only presumed because they were in the vicinity of the fire at the moment of its outbreak. ROTHAUG and OESCHEY declined, as a matter of principle, to believe Polish citizens who were under accusation. They were branded as liars. It was assumed that their innate tendency made liars of them. DURKA and STRUSS were sentenced to death. I suggested at the main trial that the persons who expressed their views about the case in front of the police officers should be heard before the Court. This offer of evidence was declined as being irrelevant. The two defendants never knew what was in the balance - not even after the sentence. The fact that the case was heard the day after the crime was committed, the absence of legal documents, the fact that the indictment had been prepared a few hours before the trial, and that the whole trial only lasted half an hour, all this deeply affected me, and I considered proceedings as well as sentence an injustice."
"The WENDEL case was that of a summer house burglar who was sentenced twice for the same offense. In 1940 Wendel was sentenced to 8 years penal servitude by the Special Court in Nuremberg. The sentence was repealed by petition of nullification by the Senior Reich Prosecutor and referred to new proceedings. WENDEL was sentenced to death by ROTHAUG on 10 July 1941. The findings were the same in both proceedings. The wishes of the Reich Supreme Court to convict the defendant of a common crime committed during black-out were met by unproved assertions and conclusions. In view of the actual facts, the second sentence could hardly be upheld comparing it with the first, if one were at all of the opinion that an offense as committed by WENDEL should be a crime punishable by death."
"As a sentence which bears purely national-socialist terror-marks and is also an expression of such terror was that against KURZ and confederates. Already the prosecution greatly exaggerated the facts. Under no circumstances was there a political background.
It was about some silly larks of young lads mainly who had in no way a political orientation. They beat each other up on several occasions. They have applied means, when bartering cigarettes for bread, which are apt to occur to thoughtless lads around the Plaerrer. Eventually they went to the home of apprentices in order to beat up the boys living there after having taken the first beatings from the latter a few days before. OESCHEY, who conducted this session, wanted to make a political case out of these harmless tricks, asserting that those who took part represented a counter-movement against the Hitler Youth. Punishments were meted out accordingly. KURZ, MANSCHIUK and MALINOVSKI were sentenced to death; the rest were sentenced to long term penal servitude. MANZUIK, a Ukranian was the one who, according to the findings of the Court was the least responsible for these incidents."
"In the case of BECKER, who was sentenced to death by the Special Court as a dangerous habitual criminal, the assumption that BECKER was a habitual criminal was not justified. Since 1923 BECKER had been sentenced only once to imprisonment and twice for illegal border crossings. One of these two sentences consisted of five months prison. Neither could it be proved that Becker had defrauded three women of considerable values under false pretenses."
We turn now to the page 120 in the English text, page 121 in the German. In the English text, it is the last paragraph on the page.
"As a last case, I would like to refer to the proceedings against four or five foreigners in 1944, in which OESCHEY presided. There were some foreigners who had found, during a walk, some food ration cards dropped from enemy aircraft. They tried to buy foodstuffs with the coupons. One of them obtained half a pound of butter; the other was on the point of buying something, when he was caught red handed. The defendants were sentenced to death by OESCHEY. Here again the punishment did not correspond to the offense, especially not because these foreigners did not know German and were unaware of the fact, that it was forbidden to pick up or to bring into circulation food coupons which were dropped by enemy aircraft.
It is true, this prohibition was published in German newspapers, but in the German language. These foreigners, however, did not know German."
The statement is signed by Hans Kern.
At this time we offer the Document NG 563, as Prosecution Exhibit 232.
THE PRESIDENT: The document will be received in evidence.
MR. KING: We invite the Court to turn to page 122 in the Document Book 3-1. In the German text it will be page 122 also. I might say to the Court that this is a rather long affidavit of which we want to read extensively, and if during the process of reading, the Court feels that it should recess, I will be glad to interrupt the reading. This is a sworn affidavit of the medical doctor. Gustav Kunz:
"I, Dr. Gustav KUNZ, Chief Medical Counsellor, retired, Nuernberg ROONSTRASSE 1, declare hereby:"
"I was born on 8 March 1882 in Rosenheim (Upper Bavaria). After termination of my pre-college education in 1900, I studied medicine at the University of Munich and Erlangen, and passed my state medical examination in 1905. After a training of many years at different hospitals, especially in psychiatry, and after a trial as a practitioner, I was installed in 1913 as a civil servant doctor in the Bavarian civil service (Administration of Justice). I was prison doctor in Lichtenau and Nuernberg. In 1926 I was commissioned Chief of the psychiatric division of the local prisons into which were brought the bigger and more difficult cases for last consultation by the tribunals of the district courts of appeal of Nuernberg, Bamberg, Wuerzburg and Zweibruecken. In 1929 I became the leading court doctor in Nuernberg; three other doctors were my assistants. The distribution of cases for examination took place according to a schedule made by me for all four doctors, whereby I took over the more difficult cases, observing them constantly in the psychiatric division. Thanks to the arrival of cases from the many above-mentioned juridical districts, where I had to be present at trials and express my opinion, I had an extraordinary possibility to compare verdicts and the conduct of proceedings at different tribunals."
"My opinion decided has to be this: that trial proceeding and sentences at the Nuernberg Special Courts, under the presidency of Dr. ROTHAUG and OESCHEY, differ substantially from those of the other Special Courts. I knew ROTHAUG from the time when he was working here as Public Prosecutor, and at that time he did not attract any attention whatsoever in his official capacity. But in the Nationa-Socialist State he - as well as OESCHEY - believed it necessary to demonstrate their political attitude by omitting every human consideration, and by a cruel treatment of people. The treatment that the two named judges bestowed, not only upon the defendants, but also upon witnesses and defense lawyers which were inopportune to them, must have been unique. Evidence of witnesses in favor of defendants was often hamstrung, and witnesses were intimidated. The same was true with respect to the functions of the lawyers working in favor of their clients it was known, therefore, how very little inclination existed with the lawyers to plead in the Special Courts. Insult, humiliation and mental torture of the defendants were routine and the two judges, especially OESCHEY, did not even renounce them in cases in which - according to the legal situation - the verdict had to be or was acquittal or an insignificant sentence. Typical of both of them, when holding the presidency, was that, general talks, bearing no connection with the case for hours often precede the hearing of the defendants and the evidence. The only purpose could have been Nazi propa ganda and publicity. I remember one case, when the proceedings had started at 8:30 and drew out until the recess at 12:30 with general amplifications, including intimidation and insult of the defendant."
"The medical expert used to be called up in all cases threatened with death sentences, but everybody must have felt that this expert activity was only a matter of form and therefore undignified for an authority judging impartially."
"By far prevailing among cases examined, practically the only ones to be taken into consideration in the Special Courts, were socalled borderline cases in which a deficiency existed either in brainwork, or frame of mind and will power, and which - according to our law should have been included partly in the group with limited criminal responsibility. In my opinion, the court doctor had to give his view on such cases too where there were no psychiatric facts called for discussion, but where the psychology of the action and of the perpetrator had to be analyzed; that of course demanded a certain amount of courage and personality from the counsel a she certainly ran the risk of identifying himself with the action and the perpetrator. Here I am thinking of the not too rare cases where people had to answer for their remarks made against Hitler or any other personality of the Reich government, right after the loss of their property through air-raids."
"For ROTHAUG and OESCHEY there existed no understanding for such presentation of psychiatric borderline cases. They were always looking for cases where they could explain psychologically the action under trial, and thus to help tie down the defendant and to restrict the issue to the short question of "responsible" or "not responsible". Finally, it was simply dangerous for the defendants, if one pointed out the defects in their mental state, because for ROTHAUG and OESCHEY it constituted an additional reason for their elimination from human society. There existed a decided endeavor to force the medical expert away from the proper medical sphere into that of a witness for the prosecution or that of the prosecutor."
"On different occasions, they tried to influence directly my task as expert. As far as it was done by the public prosecutor or by Party persons, it could only have been done upon instruction or with the knowledge of the two presidents."
"I remember more exactly two cases. The first case concerned a young Pole, who was to be sentenced to death, because he had cut off the fingers of his employers's child. I was charged with the investigation of his mental state - which did not show any state of deficiency in my expert opinion I explained however that it must have been the case of a very harmless accident; the young lady must have hurt the girl unintentionally in a childish scuffle as they were both cutting oisiers with sharp knives. ROTHAUG demanded from the public prosecutor dealing with this case, that this part of the record be removed from my opinion as I had only been asked about the mental state, and he (ROTHAUG) tried in vain to prevent this inclusion also at the chief proceedings."
"The other case concerned a young GERMAN woman, who was also to be sentenced to death. At the ordered investigation of her mental state, I made the supposition of a beginning pregnancy. As a death sentence cannot be carried out on a pregnant woman, ROTHAUG and the public prosecutor in charge of the case tried in vain to influence me to suppress this statement."
"In this case one could see especially clearly the influence of the president, which had also been ascertained in some other cases by Gauleiter Streicher, who demanded the death sentence under any circumstances. He called on me personally to suppress my statement, and in order to divert my scruples he proposed to have an abortion made on the girl before her execution."
That is all of the affidavit that we propose to read at this time, and it is signed by Dr. Gustav Kunz. We offer Document NG 531 as Prosecution Exhibit 233.
THE PRESIDENT: The document will be received in evidence, and we will take our usual recess of fifteen minutes at this time.
(A recess was taken.)
THE MARSHAL: Persons in the courtroom will please find their seats. The Tribunal is again in session.
DR. WANDSCHNEIDER: May it please the Tribunal, I would like to apologize for directing, for claiming the attention of the Court for a minute further to discuss a matter with the Tribunal which is very important to my interests on behalf of my client and which otherwise I would have no opportunity to present before the Easter holiday. I am concerned with the following matter.
The Tribunal will remember that at the beginning of this trial on the count of an affidavit by the defendant Dr. Schlegelberger concerning the offices within the Reich Ministry of Justice all discussion here in particular concerned the table which is hanging on this wall. The objections which were only broached by the defense at the time referred to the defendant Dr. Rothenberger and stated that during his term of office as under-secretary he namely was not in charge of the penal divisions 3, 4, 5, and 6. At the time he substantiated that fact by means of an exhibit which has already been submitted to the Tribunal, No. 45, in which it was stated that in effect the penal divisions were not under the direction of Dr. Rothenberger, under-secretary. It is an established fact that Dr. Schlegelberger's statement on which that survey is based was only made by him in reference to his own term of office and only referred to that period.
Dr. Rothenberger and I openly desire once again to bring up this matter, first to express that that map should not be removed but must be corrected. Dr. Schlegelberger, for technical reasons only now, has given an amendment to his affidavit which I have before me. It is a very brief statement which for reasons of complexity I do not wish to read out.
THE PRESIDENT: Let me interrupt you for a moment. It would seem that the character of the service of Dr. Rothenberger and the time of that service should be a matter of record and therefore not seriously a matter of dispute, and I am wondering if there is any apparent dispute whether that can't be worked out in council without taking the time of the Tribunal.
DR. WANDSCHNEIDER: Maybe it can.
THE PRESIDENT: I may further suggest that although that map is on the wall and therefore easily seen by us, and although we have a copy of it among our documents, that isn't final at all, and it could be corrected, if you can't agree upon it. It could be corrected as part of your defense instead of taking the time of the Tribunal at this time. I am hoping that you can agree upon the real facts and I think you should be able to, since that must necessarily be a matter of public record unless the record has been destroyed.
DR. WANDSCHNEIDER: I thank the Tribunal for giving me the information that this chart is not final, nor do I want this plan to be removed, this chart to be removed, but I merely want this supplement to the affidavit, not only to be used by myself in evidence for the defense, because this is a matter which affects the basis of the trial. Therefore, I had already briefly discussed the matter with the prosecution, that there are no objections to present this affidavit to the Tribunal at the moment. I have no further wishes before the Easter holidays. The further conclusions which I wish to draw and the possible material objections which the prosecution may have against it can easily be left until a later date. I only wish to ask the Tribunal, with the agreement of the prosecution, to accept this affidavit.
THE PRESIDENT: May I inquire, Mr. King, whether you still contend, or whether you do contend against the facts as shown by this new affidavit? Are you prepared to answer that question at this time?
MR. KING: The prosecution's position may be stated as follows. We think that aside from typographical corrections in the chart as it exists now that no correction should be made until the defense begins to put in its case in chief. If apart from the typographical corrections, upon which we can agree as the Court suggests, the fundamental basis of the chart is correct, then at this time it means that the defense is merely anticipating itself in the presentation of its case in chief.
Now, it is true that we have told Dr. Wandschneider that if the Court has no objection we would not object to the presentation of the affidavit and the additional Rothenberger chart at this time. However, at the time we told him that we did say that in our opinion we thought that should be held up until the time when defense begins to put in their case in chief. That is still our opinion.
THE PRESIDENT: There will be no difficulty about your having an opportunity to present your side, your contention about this chart at the proper time. This would set a bad precedent to interrupt the prosecution's case by putting in some matters that are really defense's. You will have ample opportunity when it comes to your defense in chief to make those corrections and we think that is the better practice.
MR. KING: May I ask the Court to refer again to document 531, which we, just prior to recess, introduced as Prosecution Exhibit 233? There is a mistake in translation which I would like to call the Court's attention to at this time. I think it only occurs in the English book, therefore it is not one of these matters to be taken up by the Translating Complaints Committee.
Referring to page 124, the second sentence in the second paragraph on that page; that second sentence should read as follows. There is no objection, certainly , to the defense counsel following this in their German text, and I think they will agree that the translation which I am about to give is the correct one, and the one I gave before incorrect. The second sentence should read:
"They always sought to suppress such attempts to explain psychologically the action under trial and thus to help the defendant, and thus they tried to restrict the issue to the question of responsible or not responsible."
The way it was read originally gives just the opposite impression, since there was a negative omitted.
THE PRESIDENT: Would you state that again? I don't believe I got it.
MR. KING: The sentence should read:
"They always sought to suppress such attempts to explain psychologically the action under trial and thus to help the defendant, and thus they tried to restrict the issue to the short question of responsible or not responsible."
JUDGE BRAND: Our text doesn't read either the way you have just read it nor the way you have read it before. Do you claim that it should read that they were attempting to help the defendant? The text we have says they were attempting to tie down the defendant and to restrict the the issue.
MR. KING: Yes, that is correct. I mean, it is correct that the original text says that. That whole sentence, however, should be retranslated. So, if you will disregard the sentence as it appears in the text and accept the one which I read a few moments ago -
JUDGE BRAND: And you intended to read that they were attempting to help the defendant?
MR. KING: No, quite the contrary.
JUDGE BRAND: That is what you said.
THE PRESIDENT : I suggest that you prepare another page to substitute for this page, and then we will have it without question. That will be the simpler way of doing it.
MR. KING: All right, Your honor, we will submit a substitute page for 124 in the English text. I think defense counsel, as I said before, have no particular interest in this because I believe the German is correct. However, we will submit an English text to them for checking as well.
May we turn now to page 129 in the English, also page 129 in the German. This is document NG-654, and will be, when introduced and formally offered in evidence, prosecution exhibit 234. This is the sworn affidavit of Kurt Hofmann:
"I, Kurt Hofmann, Public Prosecutor, retired, residing in Memmingen, Zollerpromenade 3, hereby declare under oath:
"I was born on 15 October 1908 in Darmstadt. From 1927 to 1931 I studied law in Munich and Vienna. After passing my first state examination I went through my judicial preparatory service in courts and in the administration of Munich and Pasing. In April 1934 I passed my state examination for higher judicial and administrative services. Then I was employed as a judicial assistant in the town council in Pasing.
On 1 August 1935, I entered the administration of justice as assistant judge, working first for four months at the District Court Memmingen, and then, for nine months, in the same capacity, at the local Court of Passau. On 1 September, 194_" -- the date is not clear in my copy --"19__, I became Public Prosecutor at the District Court, Nurnberg-Fuerth. After having been Deputy Public Prosecutor for half a year at the local court of Fuerth, I worked in Nurnberg on different cases relating to general criminal matters. On 1 December 1940, I had to take over cases classified "lc" upon instructions of the General Public Prosecutor, and thus I attended trials of the Nurnberg Special Court until I was drafted into the Army on 2 November 1942.
"I was a member of the NSDAP since 1 May 1937. From December 1939 until March 1941 I had to take over the wartime duties of the Block Leader, without being confirmed or sworn in, however. Besides, I was a sponsoring member of the NSKK"-that should read "from the fall of 1938."
"From December 1940 until October 1942 I had to act as Public Prosecutor at the Nurnberg Special Court, where Rothaug, the former chief of the district court, was presiding judge. His way of conducting a trial was extraordinarily severe and forceful. He was a pitiless fanatic and was so thoroughly convinced of the correctness of his opinion on a case that nothing could make him change his mind. Consequently, he could not stand any contradiction. He also knew right from the beginning how to handle and present a case in court, so that all participants at the trial were completely drawn into the spell of his opinion and thus forced in an almost hypnotic way to accept it. He achieved this so much easier, because he would not permit anything or anybody to interfere with his way of conducting a trial.
"Being a representative of the prosecution I did not participate in the deliberations of the verdict after the pleading. I therefore am not able to say how these very several cases were arrived at which the Special Court, with Rothaug as presiding judge, pronounced. But there is no doubt that it was his opinion and his will which were expressed in those sentences, especially as he was able to put his wishes through everywhere.
"Upon instruction from the Ministry of Justice it was the general duty of public prosecutors to discuss with the presiding judge, before the pleadings started, what penalty should be asked. Rothaug and Oeschey usually complied with this procedure by arranging a recess. During the recess the public prosecutor went into the conference room, where he was informed as to what kind of a sentence the tribunal intended to pronounce."
We skip the next two paragraphs, beginning with the third paragraph on page 131 in the English text;
"Similar to Roghaug, Oeschey also knew how to hypnotize those who participated in a session by directing a trial right from the beginning towards a certain aim. He used terror and an almost magic influence, so that eventually the participants had to look upon his point of view as being right or at least acceptable. Just like Rothaug, he did not tolerate any contradiction and frequently became aggressive. His treatment of defendants during sessions was mearly always directed towards intimidation; it therefore must be regarded as an inadmissible restriction of the defense. Trials conducted on a purely objective basis without insults to the defendants by the presiding judge were exceptions as far as Oeschey or Rothaug are concerned."
We now skip down to the first full paragraph on page 133 in the English text, and it must be the last paragraph on page 132 in the German:
"If Oeschey proceeded in such a manner with German nationals, he was essentially even more severe with regard to sentences against foreigners and much more furious in his conduct of their trials, especially in the case of Poles.
"Oeschey was particularly displeased with the fact that the interpreters did not translate his abuses and insults literally and thus could not create the necessary frightening impression on foreigners who did not understand German. These sentences corresponded with the wishes of the National Socialist criminal justice; but it is significant that Oeschey energetically fruthered the idea of elimination with his bloodthirsty jurisdiction."
The statement is signed by Kurt Hofmann, Public Prosecutor, retired.
Defense counsel has kindly called to me attention the date which I was unable to supply a few minutes ago on page 129 in the English text. It should read September 1936.
The prosecution offers at this time the document NG-654 as Exhibit 234.
THE PRESIDENT: The document will be received in evidence.
MR. KING: May I ask the Court to now turn to page 93 in the English text; that is on page 98 of the German. Excuse me, 97 of the German. This is the sworn affidavit of Theodor Pfaff:
I, Dr. Theodor PFAFF, Magistrate, retired, residing in Munich, Queristrasse 6, hereby declare under oath:
"If, during ROTHAUG's time, conditions at the Special Court of Nuernberg were disreputable, they certainly did not improved when OESCHEY assumed office. In a way, OESCHEY was even ruder and more brutal than ROTHAUG towards defendants. He was frequently aggressive and I always disapproved his use of expressions which to me, as a judge, were completely strange.
"OESCHEY, as well as ROTHAUG, knew how to convince associate justice of the justness of the severe National Socialist war legislation. He was able to influence us by means of a certain suggestive power. Just like his predecessor, he advocated the theory of "extermination" and was of the opinion that foreign workers had to be servants of the Reich.
"I must mention the case of KAMINSKA and WDOWEN as the most terible of my entire career. Neither of the two defendants had been previously convicted but both were sentenced to death. In this case I was charged with drafting the sentence but was by no means convinced that the crime warranted the death of the two defendants. OESCHEY clearly told me that I apparently had not yet realized the great danger which the Poles constituted and that I did not fully understand the seriousness of crimes in wartime. In this case, however, it was neither a question of a grave offence nor of dangerous attack on the German rural population. KAMINSKA had merely had an argument with a soldier and they had boxed one another's ears. Half an hour after this incident, as the soldier was passing by on a bicycle, the Polish woman threw a stone at him, but missed. OESCHEY voiced the opinion that the Polish woman had intended to injure the soldier seriously and thus interpreted the act as a premeditated assault. He even went so far as to com pare a stone, weighing half a pound, with a broadsword, a stabbing weapon and firearm, WDOWEN, hearing the frightened KAMINSKA's shouts for help ran to her and held her with both hands while she was being arrested.
OESCHEY assumed that WDOWEN had forcefully tried to liberate KAMINSKA and, in this way, had tried to prevent the police officer in the exercise of his duty. OESCHEY further assumed that WDOWEN had done this in the belief that he would not be punished, since the war had necessitated a reduction in the security police force of the Reich. The sentence of death and the consequent execution of these Poles offended my sense of ethics and has continually preyed upon my conscience. I would like to state, here that OESCHEY forced his will upon us.
Michael SCHMIDT had many previous convictions, and had twice been sentenced to the penitentiary. His last sentence however, had occurred 9 years ago. He was condemmed to death for stealing 229 pieces of flypaper. As a man of humane sentiments, I must admit this crimes did not warrant the death penalty. OESCHEY felt that flypaper had special value in war time and the demand for just expiation required the extermination of the accused. My objections to such an inhuman exaggeration of punishment was coldly rejected by OESCHEY, SCHMIDT was executed."
We now turn to the first full paragraph on page 95 that is the last paragraph on page 99 of the German text: "Boehm was a railway employee of the "Reichs Bahn" who had stolen a few suitcases and parcels. Doubtless such acts should be punished severely if only to serve as a warning. Still, from the humane point of view, BOEHM did not deserve the death sentence. It must be mentioned that the defendant had not been previously convicted; he could not therefore be considered a habitual criminal following an inner urge to steal, and this fact certainly should have been considered as an extenuating circumstance.
OESCHEY, by almost hypnotizing us, was able to enforce his will in the deliberations of the verdict and rudely rejected my attempt to save the man's life. He referred to his political position as Gau Legal Adviser and explained that, as a representative of National Socialist justice he well knew what kind of people did not deserve to live. BOEHM was sentenced to death and executed."
We skip to the last short paragraph on page 95: "Oeschey was on the whole a man who valued human life extremely little. He was a fanatic National Socialist who would not be directed by others, but forced us associate judges to apply the intensified war decrees." The statement is signed: "Dr. Theodor Pfaff, Magistrate retired."
The Prosecution offers at this time the Document NG-635 as Exhibit 235.
THE PRESIDENT: The document will be received in evidence.
MR. KING: I ask the Court to turn now to page 74 in the English text, Document NG-624, which will become, when formally offered in evidence, Prosecution's Exhibit 236. This is a sworn affidavit of Friedrich Doebig:
"I, Friedrich Doebig, born 5 March 1887, Noerdlingen/Schwaben, formerly Senate President at the Reich Supreme Court, hereby declare under oath concerning the case of OESCHEY:" Skipping down to the next paragraph the fifth line, I begin: "In Nurnberg, OESCHEY was first appointed associate judge at the Special Court. Sometime in the summer of 1940, the Gau authorities appointed him Chief of the Gau Legal Office. The heads of the N.S. Lawyer's League appointed him leader of the National Socialist Lawyer's League for the Gau Franken. After OESCHEY, again on the suggestion of the Gau authorities, had been promoted to the position of Presiding Judge of the According to my recollections, he became Presiding Judge of the Special Court, shortly after ROTHAUG's departure from Nurnberg.
"It was my impression that OESCHEY had been very close to ROTHAUG, at least until 1943, and it was obviously his intention to imitate ROTHAUG's methods at the Special Court. He proved unsuccessful in this respect, however, since he was far below ROTHAUG in intelligence as well as in professional ability. He seemed to be a morose introvert, who frequently impressed me as not being satisfied with himself. He enjoyed no popularity among his colleagues. His manner of conducting a trial showed little skill;