A It would have been very nice if it had been like that. Counsel during my activities at the Special Court I never had the impression that I could utter freely my convictions. Once I told Rothaug about that.
Q But the prosecution at least had the possibility to take a point of view concerning the clemency question differing from that of the Court, isn't that so?
A Yes.
Q Can you tell me whether the Court and the presiding judge regularly found out about the points of view of the prosecution concerning the clemancy please?
A Rothaug himself was of the opinion it would be quite inconsistent if a court sentenced a defendant to death and then asked for or supported a clemency plea. Once a death sentence had been pronounced, also the execution was supported; that point of view together with the point of view of the prison authority came to the prosecution and the the prosecution of course had the opportunity to make a dissenting statement, this statement was in the hands of the chief prosecutor who alone had the authority to sign the clemency plea; the prosecutors as experts only had to make drafts which were then modified by the chief prosecutor as he wanted it. The chief prosecutor had the full responsibility Due to the high degree of dependance or rather spiritual submission of Schroeder to Rothaug, it is not know to me at least in my department that at any time the point of view of the prosecution was any different from that of the Court. I personally tried once to persuade the chief prosecutor to intervene in the clemency plea - I frequently made suggestions which were not approved - but my draft was modified by the chief prosecutor in his own handwriting that just the opposite was suggested from what I originally wanted to suggest.
Q Was also the General Prosecutor influenced by Rothaug in that manner?
A I don't know, counsel, whether you can expect me to answer that question, because the General Prosecutor was a rather high superior whose mentality and manner of conducting his office I rarely know. I very rarely had an opportunity to speak to him.
Q Did you make any observations that maybe the General Prosecutor also was under the influence of Rothaug?
A I believe that the assistants of the General Prosecutor were somewhat touched by the influence of Rothaug. These were as far as I know and Engert, and I believe that nobody in the Nurnberg Palace of Justice Building was quite free from that radiation. I see a smile on your face, and that may sound peculiar to you, but it was just a spiritual power connected with a purely political sphere, exerted in a very dictatorial manner, and nobody quite remained free of that influence.
Q I only put that question to you, witness, because I have before me a copy of the opinion of the General Prosecutor, where the General Prosecutor rejects a clemency plea; that is, does not support a pardon, can you admit that the General Prosecutor would have had the opportunity, indeed, to recommend a pardon if in his opinion, the sentence had been too severe?
A Yes, that possibility existed.
THE PRESIDENT: Dr. Koessl, will this examination run very much longer?
DR. KOESSL: No, it will not last much longer; only a few more questions.
THE PRESIDENT: The only reason I asked the question is that I have an errand that I would go on at this time, but if this examination is almost complete I would rather wait and have this witness disposed of. That is the reason I am asking you how long it probably will last. If the Counsel would indicate about how much longer it will take, I would be glad.
DR. KOESSL: Only a few more minutes, at most, ten minutes.
THE PRESIDENT: Very well, proceed.
However, at this time, I would like to know if any other Defense Counsel desires to cross-examine this witness?
(One of the Defense Counsel indicated his desire to crossexamine the witness.)
In that event we will adjourn at this time until 9:30 o'clock tomorrow morning.
(The Tribunal then adjourned until 0930 hours, 13 May 1947.)
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 13 May 1947, 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 the defendant Engert who is absent due to illness.
THE PRESIDENT: The defendant Engert is absent temporarily at his own request. Let proper notation be made.
DR. KOESSL: Koessl for the defendant Rothaug. I ask permission to continue the cross examination.
THE PRESIDENT: You may proceed.
MARTIN DQRFMUELLER - Resumed CROSS EXAMINATION - Continued BY DR. KOESSL:
Q. Witness, did you think that you were justified in making an addition to a public document after this document had already gone to the office to which it was supposed to go, without signifying that your addition was an addition?
A. At that time we did not think about formalities of that kind. You obviously mean the indictment in the case Lopata. The addition to the indictment consisted in the addition of the words: "I am asking for an appointment for a Pflichtverteidiger (duty defense counsel) appointed by the court." Of course, this application could have been made in a separate document; however, I did not have any misgivings in putting this application also into the indictment itself, or then to change it, respectively.
Q. Witness, I am pointing out to you that you actually did make a separate application. Here there is a special application for the appointment of a defense counsel.
MR. WOOLEYHAN: May it please the Court, I object to this line of questioning as being completely irrelevant to the direct examination; unless defense counsel can link it up, I object to a further continuance along this line.
THE PRESIDENT: Of course, if this line of questioning is intended to challenge the witness and to test his veracity and his character as a witness, that is one thing; but surely this witness isn't on trial and the question being now asked would seem to indicate that counsel thinks that this witness is on trial. That objection will be sustained.
BY DR. KOESSL:
Q. Witness, does the crossing out of the words "Six years of penal servitude" and your replacement of these words by the words "Death penalty", does that not mean that this change will stand also in the report to the General Public Prosecutor and the Reich Ministry of Justice?
A. No, according to the contents of the files which I have before me I have to assume that only in the copy of the prosecution which was in the working file that in that one the original application for penalty was changed. I have no knowledge as to whether in the other two copies too, which went to the General Public Prosecution, the words "Death Penalty" were left, but I don't believe so.
Q. But you don't know it for sure?
A. On the basis of the entire contents of the file it is my impression that the indictment was sent up to the General Public Prosecutor in its original form with the note, "Six years penal servitude", and that the change was made only afterwards. Of course, I cannot reconstruct the exact state of affairs from memory now.
Q. All right. Which court, witness, had to decide about the reopening of a case until 1934?
A. The Penal Chamber was the one that had to decide about the reopening of a case, if a Special Court had passed a sentence. I believe it was the Fourth Penal Chamber.
Q. Was there any recourse if the reopening was refused?
A. Yes, the Penal Chamber of the District Court of Appeals decided on the complaints.
Q. For what reasons could the reopening be requested?
A. The reasons were laid down in the Legal Code of Procedure for Trials, especially if new facts and evidence appeared after the sentence had been pronounced which would allow a different judgment of the facts or would make it necessary to judge the facts differently.
Q. Witness, can you not remember that for the reopening of a case in a Special Court, the reopening of a case where a Special Court had pronounced a sentence about which you have just said, there could always be a reopening if any circumstance existed which would make the sentence appear incorrect?
A. I do not remember that a reason for reopening in this general form existed, especially for Special Court sentences. I would also not know where this reason for the reopening of a case had been put down in law. If this regulation of the law is shown to me, I could possibly answer this question.
Q. I am going to show you here the Competence Regulation, Article 26, Paragraph 2.
(Dr. Koessl offers book to witness.)
A. Yes.
Q. Witness, that is a new edition, from 1930.
A. I am now making sure in finding out that the decree of 21 February 1940 exists, as Article 26, Paragraph 2, contains such a regulation.
Q. This is the edition which was in effect during your time.
(Dr. Koessl offers second book to witness.)
MR. WOOLEYHAN: One moment, witness. May it please the Court, I again object on the grounds of irrelevency. This is not a course in legal procedure. The reopening of trials was not touched upon in the direct examination. Testing this witness's knowledge of the law at this point is immaterial to the issues raised in the direct examination and I object to further dilatory tactics on this particular ground.
THE PRESIDENT: I would like to inquire whether the questions that are now being asked pertain to the case of Lopata. Is that what's in your mind?
DR. KOESSL: May it please the Court, I am not only interested in the case Lopata. I was not thinking only of the case Lopata but all cases in which the defendant Rothaug allegedly did not keep within the legal regulations of the Legal Code of Procedure, or in which in any way the defendant Rothaug is reproached with any violations in the conduct of the trial.
THE PRESIDENT: These questions seem to pertain to matters of procedure, all of which are apparently covered by the Code. Whatever this witness may think about them wouldn't be final. This Court is able to read and we can judge of the interpretation of those provisions of the Code as well as the witness, and more than that, counsel can make an argument on that point, but to argue it with the witness doesn't seem to advance the defense. Objection sustained BY DR. KOESSL:
Q. Witness, how often did you see Rothaug in Oberstaatsanwalt Schroeder's office and how often did you see the Chief Public Prosecutor Schroeder in Rothaug's office?
A. I never saw that.
Q. Witness, can you remember that a Pole was indicted once for having destroyed a flock of sheep?
A. No.
Q. Can you remember that a Pole was once indicted for having injured the supporting works of a central shaft in a mine, and that Rothaug, inspite of the suspicion of many witnesses that the Pole had committed the crime, did not follow this supposition, but started from the supposition that the Pole was innocent?
A. I am asking you to repeat where the supporting beam was supposed to have been damaged?
Q. It was the supporting beam in a mine, in the shaft of a mine; some how he had hit against it and brought it into danger of collapsing.
A. I recall now very vaguely this case; some time on an official trip this case was discussed once; I remember that in order to clarify the facts of the case it was discussed that it would be necessary to look at the mine itself; and though I did not participate any further on this case, I believe to remember that this local investigation did take place at the mine. What the result of the trial later on was, I don't know.
Q. Witness, what objections were made against the legislation, as such; did you and your colleagues altogether object to the legislation as such?
A. Do you mean the legislation of the Reich Laws?
Q. Yes.
A. Thus you mean my conception of Reich legislation -- what was my opinion?
Q. No, I am only asking you as to whether at all any fundamental objections were made against the Reich legislation.
A. On the part of the organs of the administration, as far as I know, no such objections were made; we were practitioners; we had nothing at all to do with legislation; we had to take the laws as they came, as they had been issued, and we had to apply them whether we liked to or not, and that was irrelevant whether we liked them or not. We had no influence on legislation.
Q. Witness, are you informed about the fact who gave the final political evaluation about civil servants?
A. In the qualifications which were made by the superior in office about civil servants, in addition remarks about the political behavior of this official had to be made in the report on him too. Usually in the qualifications there were some clauses of this type: for example, he is close to the new State; or also, according to the person, there may have been stronger remarks.
Q. I only mean who gave the final decisive decision in the final analysis of the political evaluation; do you know that?
A. As far as I know, political offices also did that, and that is by party organizations in connection with the National Lawyers' League.
Q. You don't seem to know any details about it now?
A. No.
Q. Witness, can you confirm that the Gau Legal Office of the NSDAP and the Gau Administration of the affiliated Lawyers' League were two different things?
A. I was already asked about the question yesterday, and I stated that I don't know about that; I am not informed about it.
Q. Perhaps you d know about the following: As to whether the office holders of the affiliated organizations, for example, the Lawyers' League, belonged to the corps of political leadership corps.
A. As I understand the question, you asked me as to whether the office holders of the Lawyers' League were political leaders; that is a question which I ask to take out of the code of the organization of the NSDAP. You can read it there. I don't believe myself that they were political leaders.
Q. Witness, I have one final question only. What was your personal relationship with Rothaug, especially, also outside of the office.
A. I maintained the forms of politeness and of social decency; I never violated them toward Rothaug, although he violated them toward me; and even though at times I had to exercise a great deal of self-control, selfrestraint, in order to not become excited. I also took part in official trips, together with Rothaug, and on these occasions there were also personal meetings, and in a way, after the sessions were finished, we ate together, and we went to restaurants in order to pass the hours away -- pass the time away there. On such evenings I took part with a great deal of dislike; I did not like to take part in such evenings at all; often it was a torture for me; often I also withdrew early because Rothaug on such evenings led the discussion and propagated ideas which were not only boring for me, but also I disliked them intensely. Through all such things my relationship with Rothaug was not very good; it was disturbed. In addition, I seldom agreed with his method of conducting a trial and with his jurisdiction, so that I was frequently excited, especially since he also treated me in a brusk manner personally; since according to my nature and in my capacity of acting I am a concilatory person, I did not let a break come about, even though Rothaug on the occasion of a meeting once in a brusk manner attacked me and threatened me.
I am ready, if you like, to describe this incident.
Q. I asked you about the personal relationship.
A. I may add a supplementary remark; this, however, is quite personal what I am saying now: that many hours during the night, out of rage and excitement, I could not sleep because of the dishonorable treatment that Rothaug -- because of the dishonorable way in which Rothaug treated me.
Q. Did you ever ask for a transfer?
A. Yes, I once requested to be transferred to Duesseldorf, and I did that in a form of asking for a promotion. During the war there were no transfers except for official reasons; it was only by way of being promoted. As far as I know I only applied for a promotion once and I wanted to go to Duesselforf because I wanted to get away from Nurnberg, since I also had come to Nurnberg not out of my own free will, but, however, I was not promoted
DR. KOESSL: I have no more questions.
DR. SCHUBERT: (Attorney for Defendant Rudolf Oeschey) If your Honors please, may I continue the cross examination?
THE PRESIDENT: Proceed. May we suggest, however, that there has already been quite a good deal of cross examination, and we trust that Defense Counsel, who are now about to conduct a cross examination, that it be confined only to those matters that would affect Dr. Oeschey.
BY DR. SCHUBERT:
Q. Dr. Dorfmueller, you yesterday mentioned the position of the defendant Oeschey in the Lawyers' League. Did you have any experiences of any kind that the defendant Oeschey within the framework of the Lawyers' League stood out particularly?
A. I did not make any observations to that effect. He especially did not stand out as a speaker in contrast to Rothaug who once gave a lecture in the Lawyers's League.
Q. Dr. Dorfmueller, you mentioned as one of the tasks of the Lawyers' League the training of its members, their education. Do you know who was in charge of the training of the members of the Lawyers' League in Nurnberg.
A. No.
Q. Do you know what position the defendant Rothaug had in the Lawyers' League?
A. No.
Q. Not that either. Do you remember correctly that you answered yesterday the question as to what field the Lawyers' League of Franconia encompassed -- that you could not that with certainty?
A Yes, I do not know these matters in detail because I am not from Franconia -- I am not a native of Franconia.
Q Dr. Dorfmueller, you mentioned that the defendant Oeschey was in the Gau Legal Office as the Gau Legal. Office Chief, as you said - that he became active there. Do you remember that or do you intimate the possibility that the defendant Oeschey was merely Gauhauptstellenleiter of the Main Office, Legal Adviser and Legal Care in the Gau Legal Office? He was only in charge of one office in the Gau Legal Office?
A These little differentiations do not mean anything to me. I admit the possibility that he may have had another title.
Q You were asked yesterday about political reliability in connection with the promotion of Oeschey to district court director, and if I remember correctly in that connection, you mentioned that the defendant Oeschey was just as unthinking and fanatical as Nazi as Rothaug. Since this remark was made in connection with his political reliability, I am now asking you: is it correct, if I interpret the word "unthinking" as "bedenkenlos" without misgivings. If I understand it to mean, against his political reliability in the meaning of the word, at that time there were no misgivings -- no doubt?
A Not quite, Defense Counsel, I would have said "unbedenklich". I meant something else, only, also, without any misgivings as to the means.
Q What "means" do you mean?
A I mean penal means, the means which were available to a criminal judge in order to punish those who had different political ideas.
Q Did you experience any such cases, yourself?
AAt the moment, I do not remember trials by Oeschey against people who had different political ideas. I remember only cases in which he was absolutely without selfrestraint, and in my opinion, he lacked that objectivity which should be the quality of a judge.
Q Witness, in saying so, you want to point out the lack of correctness in the outside form of a trial?
A Correct, yes, first of all that.
Q You said that the trials that you experienced were those trials in which Oeschey was the presiding judge?
A Yes.
Q Can you confirm that the manner of Oeschey in conducting a trial, consisted in trying to deal with the matter exhaustively?
A Yes.
Q Did he take into consideration matters of the defense as well as for the prosecution?
A Yes, they also tried to investigate that. One can not charge the Special Court of Nurnberg in any way, I think, with being superficial.
Q You also mentioned the discussions which took place after the submission of evidence by the prosecution -the discussions which took place between the prosecution and the court?
A Yes.
Q Were you ever present in discussions of that kind where the defendant Oeschey took part?
A Yes.
Q Was there a discussion of the facts, the material discussion with the prosecutors?
AAnyway, it was in a more objective manner then when Rothaug was the presiding judge, because under Rothaug there was no discussion in the real meaning of that word, because Rothaug expressed his opinion in an authorative manner, and did not allow any other opinions to come up; and, to that extent, this could not be said of Oeschey.
Of course, he was also younger so that he was newer to me, and to my own age, and he was not so dictatorial either; so, that one could express one's own opinion toward him; whether he considered it, that is another question.
Q Dr. Dorfmueller, in such a discussion, did it perhaps happen, too, that the defendant Oeschey found the request for a penalty that was made by the prosecutor, too high, and wanted to inflict a less severe punishment?
AA similar case could be reported, perhaps -- I can not say yes to the question as you put it. It was not that he stated the penalty asked for by the prosecution was too high, but he agreed with the opinion of the prosecutor in this case, i.e. with me and was of the opinion that he penalty which Rothaug intended to give was too high. I remember a case, as far as I recall, this is the only case of this kind -- however, this was the only case of its kind which was tried in Regensburg, and Rothaug was the presiding judge. In this case, and at that time, Oeschey was still an associate judge - a farmer's wife, whose husband had been drafted, had a French prisoner of war with whom she had an affair, but not in a very serious way they had kissed each other. In the discussion before the final plea, Rothaug stated that he considered a penalty of a penitentiary sentence of three years as adequate, referring as usual, to the sound sentiment of the people. I was of the opinion that a considerably more lenient penalty was sufficient. I was thinking of one year penitentiary, and I expressed this opinion. It is one of those cases in which I was for a more lenient sentence, and when I expressed it in these internal discussions Oeschey, in this case, agreed with me, and was of the same opinion as I, namely that three years of penitentiary was too high.
We did not succeed with this opinion with Rothaug.
Q Witness, a final question: Yesterday, the remark was discussed which the prosecutors put into the indictment, which remained in the working file of the prosecution; and, this remark contained the words "proposed application for penalty", and then there was something like, so-and-so many years of penitentiary or death penalty, or something like that. When was this remark put into the indictment?
A When the indictment was composed, written, and at the same time that the indictment was written - that, is to say, the indictment was drafted by the Referent, by the export. And, at the same time with this draft the application for a sentence was put down. I remember that this regulation was made in the era of the so-called "guided justice"; but there were considerable objections by the prosecution to this regulation because we were against it already at the time when we were composing the indictment, merely on the basis of the documents, without the impression that we gained during the trial. To make a judgment about the amount of penalty, normally without the personal impression gained at the trial, is not possible; at least, it is distorted. In spite of that it was ordered, and at this period of time, when the indictment was composed, the prosecution had to decide about the penalty that was to be imposed, however, absurd it was.
Q Dr. Dorfmueller, did this remark serve also for the information of the Reich Ministry of Justice, in cases in which it had been ordered that a report had to be given to the Ministry of Justice?
A If I am not very much mistaken, all indictments had to be submitted to the General Public Prosecutor, who probably did not hand them forward all of the time, but they had to be submitted to him so that in every case the General Public Prosecutor was informed about the proposed penalty that would be asked for, and if he felt that it was too lenient, he could ask for a more serious penalty.
Then, I understand you correctly, if I think that these remarks were made by the prosecution, not on the basis of their own decision, at a time when one could not speak yet of a discussion between the court and the prosecutor?
A Yes.
Q Dr. Dorfmueller, at the same time was there, in cases where the death penalty was considered - were photographs of the defendants requested?
A Yes.
Q Thank you very much.
DR. SCHUBERT: I have concluded my cross examination.
May it please the Court, may I have permission to make a brief remark? Yesterday, it happened to me and to my colleagues, that we received a supplementary volume to book 3 of the document book of the Prosecution. From the table of contents, I could see that an affidavit of the witness, Dr. Dorfmueller, who is present here, against Oeschey, is to be submitted. Still, I do not know this affidavit of Dr. Dorfmueller's, and, of course, would have to reserve to myself, the right to cross-examine the witness about this affidavit. I only want to find out this, and I wanted to initiate it also with the Prosecution, whether there is a way to undertake this cross-examination as soon as possible since we happen to have the witness here?
MR. WOOLEYHAN: Your Honors, that affidavit was placed in the book before we knew that Dr. Dorfmueller would be available as a witness. It will not be offered.
JUDGE BRAND: Dr. Dorfmueller, I should like to ask you a few questions to clear up a point of judicial practice which is not quite clear in my mind. It doesn't relate specifically to any of the defendants.
BY JUDGE BRAND:
Q You have spoken several times with reference to the files, and to the examinations of the files which were frequently made by the judges. Am I correct in understanding that a part of the files consisted of reports from the various police agencies concerning the criminal case under investigation?
A Yes, the course of the file was in brief as follows: Usually, in most cases, there was a report, a denunciation, either directly to the prosecution or to the police.
Q And in the files would be the written report of the police as to facts which they had investigated. That is correct, isn't it?
A. Yes, the police had investigated the facts on their own and submitted this finished investigation to the prosecution.
Q And the judge investigated the files before trial?
A Yes, he received the files together with an indictment by the prosecution, and he examined the files. It happened also that he desired to have a supplementary investigated because the facts did not seem to be clear enough to him.
Q In cases in which police officers had made reports, and those reports were in the files, were those police officers always called as witnesses at the main trial?
A They were regularly, as a rule, called as witness. That was a practice which was laid down. They also appeared in the main trial, but they were not airways examined as witnesses. They were examined only if contradictions appeared between the statements which they had made to the police and the statements which they made before the court.
That is, if they changed their statements when they were before the court. Then the police official was also examined.
Q Then I take it that it is true that the court considered the reports which were in the files in determining whether or not the defendant was guilty, even in cases where the police officer who had made the report did not testify in the main trial -- is that correct?
A Yes.
JUDGE BRAND: Thank you very much.
THE PRESIDENT: I should like to ask the witness a question or two.
BY THE PRESIDENT:
Q Concerning the case of Lopata, I think it appears to by your testimony that Lopata was Polish, is that correct?
A Lopata was a Pole, yes.
Q Do you know of your own knowledge, or from your connection with the case, whether Lopata had been brought into the Reich as a laborer, or whether he came voluntarily?
AAbout Lopata as an individual case, I don't know that fact. I don't even know exactly whether the Poles, all of them, came voluntarily or by force. It is possible that in the beginning they came voluntarily. Later on, as a soldier -- when I was a soldier in Warsaw I heard rumors and talks that they had been forced to come.
Q Aside from rumors, and dealing with what you may know, during the period when you were one of the prosecutors in the Nurnberg Special Court were there instances of Poles brought before the court, where these same Poles had been brought in for labor, that had not come voluntarily? I am referring to other cases besides Lopata. You have told us as to him.
A Yes. I don't know exactly whether the Poles who came at that time came voluntarily or did not come voluntarily. In any case, all the Poles who were in Germany were used for work, and mostly they were farm laborers.