Q. As far as you remember during what tine did this trial take place?
A. That was at the time when very severe, heavy air attacks had been made on Nurnberg; probably only during the year 1944.
Q. That was, in other words, during the time when Oeschey was presiding judge of the Special Court?
A. I believe that I remember with certainty that Rothaug was no longer in Nurnberg at this time.
Q. Herr Paulus, when the defense asked to let then have evidence submitted, were these questions decided according to the facts that they had at hand?
A. I, myself, as prosecutor, always made efforts to honor the request for submission of evidence. When I made applications for it, considering them from a factual point of view, I can remember no case which the court decided against my application -- in any case. I did not because aware of any time in which the request for submission of evidence was refused in a manner contrary to the code of procedure.
Q. Do you remember cases where the defense asked for a nullity plea in favor of the defendant because their defense had been limited?
A. I can remember no such case.
Q. Did you experience many cases of Poles while Oeschey was presiding judge?
A. The number of cases dealing with Poles, as far as I remember, from the middle of 1943 on, decreased considerably because from that time on, the police, on their own, handled a large number of these criminal cases,-- did not announce them any more to the prosecution; so that the number of cases dealing with Poles which I saw and experienced during the time when Oeschey was presiding judge could not have been considerable. How many they were, of course, I do not know.
Q. Witness, you say in your affidavit -- moreover, Oeschey was thoroughly susceptible to other peoples' opinions.
A. Did. I not say he was more susceptible than-
Q. You add at least to a much higher degree than Dr. Rothaug. Did, in making this statement, you think of any specific case?
A. No.
Q. Do you remember a case in which the Reich Ministry of Justice ordered the death penalty by means of an instruction which they issued, in which case, however, Oeschey wanted to pronounce only a prison sentence?
MR. KING: I wonder if that question is not outside the scope of the affidavit; I don't find it there. If it is outside the scope of the affidavit, I think the question should be withdrawn. If it is included in the affidavit, I would like to know where.
DR. SCHUBERT: May it please the Court, I am referring to the affidavit in the German text, the fifth paragraph toward the end; I have already read the sentence -- moreover, Oeschey was thoroughly susceptible to other peoples' opinions, and in regard to this point I only ask for a clearer explanation.
MR. KING: That is what I thought; that is why I object to the question. It has nothing to do with the question he asked.
THE PRESIDENT: This is cross examination; we will let him ask the question. Proceed.
BY DR. SCHUBERT:
Q. Witness, I asked you whether you knew of a case in which the Reich Ministry of Justice by means of an instruction ordered the death penalty, but in which case Oeschey wanted to pronounce only a prison sentence?
A. I do know of one case in which, however, I no longer remember the name of the defendant any more, nor can I state what the crime was, but in which case I believe that I can remember that Oeschey was presiding judge. I was the prosecutor at the trial. In the files of the prosecution was an instruction from the Reich Ministry of Justice to ask for the death penalty in this case; whether before the submission of evidence or after, I don't remember, but in any case I was of the opinion that the crime under question -- could not be punished by the death penalty; and, after getting in touch with the Special Court, I found out that the court was of the same opinion.
However, since I received binding instructions from the Reich Ministry of Justice, I could not deviate from it; however, I could have asked for the death penalty, and the court could then have had issued a less severe sentence, but I considered the plea for the death penalty so unjust that I did not want to make it. Therefore, I first went to the then Senior Public Prosecutor, Dr. Schroeder, and asked him not to ask for the death penalty. Dr. Schroeder did not want to take the responsibility for this, and referred me to the then General Public Prosecutor, Dr. Benz, who, after I told him that the court would not in any case pronounce the death sentence -- permitted to ask for a prison sentence which the court then also pronounced.
Q. Witness, at that tine it was a custom that after the result of the evidence, the prosecutor discussed the application for penalties that he would make with the court; is that correct?
A. It was the practice at least in most cases in which it was not clear from the very beginning, that there would be agreement with the application and the intended sentence that would probably be pronounced. That was due to the instructions issued by the Ministry of Justice.
Q. In such cases of doubt, did Oeschey give you orders what pleas you should make?
A. A judge never issued orders to me as a prosecutor; I would not let a judge give me any orders.
Q. In cases of doubt, in the consultation chamber was there a free discussion between the court and the prosecutor?
A. If difficulties of opinion existed between the opinion of the prosecutor and that of the court, this difference of opinion was discussed because after all, one wanted to and was supposed to achieve the aim that the plea of the prosecutor and the sentence of the court should not deviate very far from each other.
Q. Are you under the impression, witness, after such a discussion with the court over which Oeschey was the presiding judge, that the court had already completed its sentence?
A. Naturally, there was in a considerable number of cases before the Special Court, in which it must have been clear from the beginning what sentence the court would pass; that was especially in those cases in which the law absolutely laid down a certain sentence, and, in which it was shown that even a change in the facts was out of the question. For instance, if the criminal had fully confessed. Would you please repeat your question again, I am not sure I answered it completely?
Q. I asked you, witness, after such discussions in the consultation chamber, that is before the final plea, were you under the impression that the court had ready made its ruling?
A. I repeat, in those cases, and naturally they were not a few before the Special Court, it was clear that the sentence was finished on principle; in other cases of which I also experienced a large number, I did not have the impression that the court, after the submission of evidence had been completed had already decided about the sentence because I personally, during these previous discussions experienced it; that difference, between the associate judge and the presiding judge or between the prosecutor and the court existed which later on partly, only, in the final discussion or in some cases already /---/ in the prior discussions with the prosecutor were clarified or removed.
Q. Witness, you furthermore, make some statements about two other cases about which you remember, cases in which Oeschey was the presiding judge and you were the prosecutor in the case. One of the two cases is the case Fuehsbauer. I am showing the file of this case to you with the indictment, from the working file of the prosecution.
A. Yes, that is a copy of the indictment which belongs to the office file of the prosecution.
Q. Witness, only to clarify, please tell us what these office files of the prosecution meant; were they a part of the court files or were they files which the prosecution kept back for their own use, back for themselves and used for their own purpose, after the file, as such, had been handed over to the Court?
A. In the case of the Handakten - office files of the prosecution, they they are not court files but purely files of the prosecution which on principle and without exception, did not leave the hands of the prosecutor or its superior authority, such as the Reich general prosecutor at the Reich Justice Ministry. I know of no such case, and it would have been inadmissible that these files were handed over to the court.
Q. Witness, from the office files of the prosecution, can you tell me what penalty the prosecution was going to ask for in the Fuehsbauer case?
A. In the Fuehsbauer case, when the indictment was filed, it was intended that the death sentence would be asked for.
Q. In the decision of the prosecution about the probable plea for the penalty, was it, in any way conditioned by an order or any order of the court, instructions of the court, or was the decision of the prosecution based on its own decision which was influenced by no other authority?
A. I cannot answer that question very clearly because I was not the expert working on the fuehsbauer case. I personally, when an indictment was filed, was never influenced by the court -- to consider any application for a sentence, and to put it into the files as such because in my position as prosecutor I considered myself as an independent person and I would not have tolerated any such order. To what extent this happened in any other case, I cannot say, especially I cannot say as to the Fuehsbauer case.
Q. I am now coming to the Schmidt-Michael case. The case concerning the theft of fly catchers, witness, I am now showing you the file.
Do you find the indictment?
A. Here.
Q. Would you please tell me from the indictment whether the prosecution in this case, when it filed the indictment, asked for the appointment of a defense counsel?
A. In the indictment of the 2nd of May, the sentence in the form which says "appointment of a defense counsel has not been crossed out; therefore, I assume that the expert intended to ask for the appointment of a defense counsel. However, in some cases the chance, by mistake, failed to cross out this sentence in the form, Whether this was the case here, I do not know. If the office files are available I could find out whether the death sentence was intended, I correct myself, whether the application for the death sentence was intended. I cannot find that out from the office fibs because, exceptionally on the copy of the indictment of the office files, the remark regarding the intended plea for the penalty is not contained.
Q. Witness, is it correct that, at the time, the Reich Supreme court where the Special Court cases could be referred by way of the nullity plea, had developed a jurisdiction according to which the worth of the stolen goods did not matter, but mainly the attitude, and the personality of the criminal; is that correct?
A. Whether the Reich Supreme Court, especially during decisions of the last years, developed this basic principle, I do not know any more today wit out any doubt. But, however, legal literature and also the men of jurisdiction over the lower and medium courts represented the point of view that the amount of damage was, at least, not the decisive thing in pronouncing a sentence; that I can confirm without any doubt.
Q. Mr. Paulus, at the end of your affidavit, you state that, in your opinion, and I quote: "Oeschey, who became the deputy of Rothaug in Nurnberg, was not willing to give the defendant another chance, and exaggerated the facts to such an extent as to state that any case had an extremely high value during war time, that showed a brutality of which only Oeschey was capable."
I am now asking you, witness, are these your own words or was that formulation prescribed to you?
A. This formulation was not prescribed to me, but this record which the prosecution took is partly, where I dictated myself, personally and in part my statement whereby the interrogator , who interrogated me, dictated to the stenographer within the meaning of the remarks I made. This last sentence is not a sentence which I dictated, but it is what the interrogator dictated on the basis of the remarks which I made to him.
Q. Herr Paulus, -
A. May I add something, my language is somewhat more dry than perhaps the language of the interrogator who interrogated me, so if I should have dictated the sentence myself, I would have found some more dry words.
Q Witness, in conclusion I want to ask you the following question. Last Monday we discussed your affidavit together, is that correct?
A Yes, that is correct.
Q Did you speak with me alone at that time?
A Yes.
Q Or was somebody else present?
A I spoke with you alone only. In order not to let any error arise about my affidavit I spoke with you alone.
Q Did I try to exert any influence upon you?
A No.
Q In regard to the manner of your testimony?
A No.
Q Were any wards promised to you, or disadvantages pointed out to you as a result of your testimony?
A No.
DR. SCHUBERT: I have concluded the cross examination.
THE PRESIDENT: Let us take the afternoon recess at this time.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
DR. KOESSL: (Counsel for the defendant Rothaug): I ask to be permitted to cross-examine the witness about the same affidavit on behalf of the defendant Rothaug.
BY DR. KOESSL:
Q Witness, is it correct that your statements mainly referred to the last half year of Rothaug activity at the Special Court in Nurnberg between 1 December 1942 and 1 May 1943?
A Mainly, yes. However, I was already, before 1 December 1942, active as prosecutor On Special Court cases; in some instances and in those cases too I had official contact with Mr. Rothaug.
Q When you criticized Rothaug's method of conducting a trial, were you thinking of violations of the code of procedure?
A No.
Q What do you understand by Rothaug's suggestive manner in imparting his views to other persons?
A When I got to know Rothaug better through cur official contact, I considered Rothaug to be a man of extra ordinary and outstanding mental qualities. I was of the conviction that on account of those abilities of his, and also on account of his self confidence, on account of his smartness, it was possible for him, in the case of persons who held different opinions than his own, to convince them, by the use of evidence which was fascinating in its effectiveness, that his own opinions were correct. That manner of Rothaug's, which I attribute first of all to his superiority of intellect, had on me personally a suggestive effect.
Q Can you say what caused Rothaug's uncontrolled manner and band temper that uncontrolled manner which you mentioned in your affidavit?
A My opinion is this. I regarded Rothaug, from the point of view of temperament, as a definite choleric. Furthermore, at trials which were held outside of Nurnberg, I frequently observed that Rothaug before or after a meal, took sodium bicarbonate or similar medicines against stomach troubles.
I also know that at trials which were held outside Nurnberg, he suffered repeatedly from what appeared to be violent toothache. Once, as far as I remember, I even discussed with Amtsgerichtsrat Dr. Pfaff that latter point, and he told me that Rothaug, on principle, did not go to the dentist but, as he said, preferred to let his teeth rot as they were.
I was of the opinion that those circumstances represented at least a important cause for Rothaug's attitude at the trials. Whether those circumstance's were the sole cause, that I can, of course, not I judge, nor can I judge whether they were the main causes, but I myself held those circumstances partly responsible because I can also remember that Rothaug, when he had taken this stomach powder was particularly bad tempered and when he was evidently feeling well, he also used a different tone at the trials.
Q As to Rothaug's reasons which you mention for his political statements at the trial, did they only serve the idea of a referant or were they also for the purposes of justifying the extent of the penalty?
A Would you read the sentence from my statement please?
Q In your statement you say: "His custom at the trial to hold political, philosophical, or ideological lectures, he explained to me personally once by saying that only in that way could the sentence be made comprehensible to the audience." Therefore, I want to ask you whether that justification and his political statements only served as the idea of a deterrent, or only served to justify his severe standards or whether it served both purposes, and whether Rothaug, at the discussion at that time gave any explanations.
A I discussed that point with Rothaug when I was transferred to the prosecution at the Special Court. Rothaug told me at that time, that in his opinion it was the duty of the prosecutor, concerning the demand for punishment, not only to speak in a few meaningless sentences, but to give sensible reasons, and that at trials before the Special Court in particular it was necessary for the prosecutor also to incorporate political points of new in his opening statement.
He told me at the time, as a reason, that it was the task of the presiding judge, as well as that of the prosecutor, concerning the severe sentences which were necessary during war-time, to make these more understandable to the general public. Evidently it was this the opinion of Rothaug -- in any case I concluded that from our conversation--that as to the general public, that is, the audience in the courtrooms it was necessary to make the comparatively severe sentences understandable and comprehensible to them. I believe, therefore, that the political and ideological lectures by Rothaug during the examination of the defendant, while evidence was submitted and while he read the opinion, I believe that those lectures, above all, served the purpose of enlightening the general public. That they may, in addition, also have served the purpose of a deterrent; that is altogether possible.
Q According to your statements, you were the person who, in the Lopata case, acted as prosecutor.
A Yes.
Q In your affidavit you mention the following sentence: "That the prosecution did ask for the death sentence, in my recollection, is due to the fact that Dr. Rothaug, after evidence has been submitted, told me that the court would pass the death sentence."
I have the original files of the Special Court at Nurnberg before me, the files of the Lopata case. I would like to show you a copy of the indictment on which there is a note according to which it was intended to demand a term of six years in a severe penal camp. The note "six years in a severe penal camp" has been crossed out in indelible pencil, and has been replaced by the words "death sentence". I want to ask you, do you recognize the handwritting in which the note "death sentenceQ was made? (Document submitted to witness)
A I know the handwriting. It is the handwriting of Dr. Dorfmueller, prosecutor at that time.
Q Since you have seen the original document do you maintain the view that the suggestion to ask for the death sentence was made by Rothaug after evidence had been submitted or during the trial and made to you, or can you here explain another possibility or probability?
A In my statements regarding the Lopata case in my affidavit I made a mistake, and that insofar as I assumed that the prosecution at the beginning of the trial still intended to ask merely for a prison term. The office files which have been shown to me reveal that the Prosecution already prior to the opening of the trial must have intended to ask for the death sentence. Originally, as is also evident from the office files, a sentence of six years in a severe penal camp had been intended. What circumstances caused the original demand being replaced by the demand for the death sentence, I do not know, because I was not the expert on that case.
Q What would you in such a case consider the regular reason for the change in the prosecutions intentions?
A There are several explanations for that, In very many, or in many cases, the expert on the case first of all without contact with the senior prosecutor suggested the sentence and the indictment together with the copy of the indictment and the sentence which it was intended to demand was submitted to the senior prosecutor and then the senior prosecutor decided that the sentence which the expert had demanded or suggested was either too severe or too lenient. Then the expert crossed out the sentence which had been originally demanded and wrote the sentence which the senior prosecutor demanded next to it. It is possible, however, that the expert called up the prosecutor general and said that it appeared to him that the sentence which was intended was too lenient and that a more severe sentence was to be demanded. Then the original demand was also replaced by a new demand for a different sentence. In such cases, as a rule, however, a written notation was added to the files to the effect that the prosecutor general had given instructions.
A third possibility that an original demand for a sentence was changed might be that the Reich Ministry of Justice gave different instructions. In those cases the office files should contain an ordinance by the Reich Ministry of Justice. As far as I know, these office files in the Lopata case contained neither an ordinance by the prosecutor general nor by the Reich ministry of Justice. There is a fourth possibility which I, personally, have never experience, but which no doubt may have occurred, that the presiding judge of the Special Court, contacted the expert or the senior prosecutor to discuss the matter and to inquire what sentence the prosecution intended to demand in the case. It is also possible that the judge in question then convinced either the senior prosecutor of his own opinion or that the presiding judge talked to the expert with the prosecutor and that he thus convinced the prosecutor via the expert. What happened in this particular case I repeat I cannot tell.
Q Did it happen that instructions from the higher authorities, be it from the Reich Ministry of Justice or from the Prosecutor General were passed on by telephone?
A That did happen.
Q Can you still remember that in the Lopata case at the trial it was shown that Lopata had attacked his master with a pitchfork and that thus a circumstance had been revealed which was of a very grave nature and which, in the evaluation of the facts by the Reich Supreme Court, had not been known.
A I cannot remember the trial of the Lopata case. However, I have seen from the files, in particular from the statement by the presiding judge concerning the clemency question, that as the death sentence was passed, obviously the incident of the threatened attack with the pitchfork on the man's master did play a part. But what part it played when the evidence was submitted, I cannot say, because I do not remember at all.
Q During your term of office were you able to observe what caused Rothaug's severity in the case of crimes committed by Poles? Was it a result of hatred or did Rothaug state definite reasons for his severity?
A I know that Rothaug in the case of talking to the prosecutors as well as in the opinions always expressed the point, any way as far as the meaning is concerned, he expressed the point that the large number of foreigners in the territory of the old Reich were numbering millions and that they constituted a particular danger for the general public safety and that for those reasons it was necessary to apply particular severity to those foreigners. Whether Rothaug in addition hated these foreigners personally I do not know because he never expressed anything of that typo to me.
Q In connection with that severity towards foreigners, you make a remark in your affidavit to the effect that Rothaug was particularly severe toward foreigners and in the Lopata case exceeded by far the sound sentiment of the people.
Q This opinion concerning the sound sentiment of the people in this formulation was that your view?
A I cannot say that for certain.
Q In discussing the Eisenhofer case and the Fuchs case you refer to Article 51, Section 2, of the German Penal Code. I would like to ask you, did the position of the Special Court concerning the application of Paragraph 51, Section 2, was it in accordance with the jurisdiction of the Reich Supreme Court?
AArticle 51, 2, as far as I remember, only mentions the possibility of a more lenient sentence. According to the text of the law the Court is thus not compelled to pass a more lenient sentence if Article 51, Section 2, applies. At the Special Court Nuremberg generally the point of view was taken that with a special type of criminals as, for example habitual criminals and similar persons, the existence of Article 51, 2, was not only not a reason to pass a more lenient sentence but that on the contrary in the case of such criminals it was necessary to view the lesser responsibility as an additional reason for a more severe sentence, because such a person constituted a greater danger for the general public than a human being who mentally and morally was completely normal.
As far as I know, the Reich Supreme Court approved of that jurisdiction, but I am not able to cite individual sentences to that effect.
Q. My last question to you is: Can the answers that you have given be considered a clarification and a supplement to your affidavit?
A. My affidavit, as is revealed by my statements here today, I maintain here on all essential points with one correction, that is the Lopata case; I have to admit today that there I made a mistake because the prosecution already at the beginning of the trial intended to ask the death sentence; as to the rest, the statements which I have made today are naturally a supplement to my affidavit.
DR. KOESSL: I have no further questions.
RE-DIRECT EXAMINATION BY MR. KING:
Q. Witness, you have referred to an inadvertent error which you made in executing the affidavit to which you referred in your testimony here today. I believe your statement and explanation of this was, as you now recognize, that the prosecution intended from the beginning to ask for the death sentence in this case; and you arrived at that conclusion from nothing in the case record that a handwritten change has been made, and that the original sentence of six years has been crossed out and substituted by the recommendation of a death sentence. My question is very simple. How do you know, by what process do you now arrive at the conclusion that the change was made at the beginning of the trial and not in the middle or at the end of the trial. I did not get in mind, at any rate, the reasons by which you arrived at the fact that the change was made before the trial began.
A. I do not quite understand the question. May I answer it like this, in the sense in which I understand it.
In virtue of the files, that is to say, in virtue of the fact that not I, as prosecutor, but already Prosecutor Dorfmueller, as the expert, made the alteration; that fact compels me to draw the conclusion that already at the opening of the trial the notation "death sentence" must have been entered on the indictment, for at the latest, from the beginning of the trial, the expert Dorfmueller had not been able to get a hold of the office files because I as the prosecutor at the session had them on my prosecutor's desk. Therefore, the change in the sentence which was intended must have been carried out before the opening of the trial; when it was made, I cannot say without having another look at the files.
Q. May I ask you just one more question in that connection. Did the individual who made the change at any other time over have access to that case file again? In other words, as I understood you, you said that at the beginning of the trial the file was transferred to you, but I do not believe you excluded the possibility that at some later time, either during the later stages of the trial, or perhaps even after the trial, the files were again returned to the individual who made the changes; also, I do not believe you excluded the possibility that some time during the trial he may have come to your office and made the change.
A. I first consider it quite out the question that the expert of the time, Dorfmueller, should during the trial at which I was present all the time, should have had the office files in his hands, for he should have had to remove them from the desk of the prosecutor who was sitting at that table in the German court, and he would have had to fetch them from my desk which naturally would have struck me to such an extent that I would remember it for certain today, for that would have been an entirely unusual occurrence.
On the other hand, the expert did after the end of the trial have the office files returned to him. I, as the prosecutor, had the files only during the trial, and at the end of the trial, via the office, I returned them to the expert. That is also obvious from the regulations on the back of the files where it says: "return to expert". Thus the change must have been made either before the opening of the trial or, and that I think is out of the question, it was made by the expert after the sentence had been pronounced. I consider that out of the question, because in the same blue pencil the application was written down that a defense counsel should be appointed, and that application was decided on before the beginning of the trial in September or October by the presiding judge. Therefore, according to my firm conviction, the notation "death sentence" must have already been entered in the office files before the trial opened.
Q. I think that gives us the benefit of your deductive reasoning as to how you came to this conclusion. Now, I want to go to another subject. In your years as prosecutor, before the Special Court, wore you not aware of a ruling, perhaps even an order, by the Reich Ministry of Justice which required prosecutors to confer with the judges of their court prior to the beginning of a case; are you aware of such a ruling?
A. There was an instruction from the Reich Ministry of Justice; whether it existed in writing, or whether the head of the office passed it on to us verbally, I don't know; an instruction to the effect that the demands for a sentence by the prosecutor and the sentence should, if possible, agree, or should at least approximate as far as possible.
For that purpose the Reich Ministry of Justice instructed the prosecutors, and probably informed also the judges of that instruction, that before the sentence, or at the conclusion of taking of evidence, any how, around about that time, that the prosecutor should contact the court in order to find out what sentence the court would probably pass, and so that the prosecutor could decide what sentence he was to demand.
Q. In other words, the purpose of the conference was to effect some agreement prior to the time you appeared in court for the final summation, to effect some agreement of your request for sentence and the court's predeterminited judgement as to what the sentence would be -- perhaps that question wasn't very clear to you. If you don't understand it, I will repeat it.
A. May I ask you to repeat your question?
Q. Yes. As I understand the purpose of the ruling, as you have explained it, it was to prevent you, the prosecutor and other prosecutors from coming into court and making a demand for a sentence which was not in agreement with the sentence which the court intended to pronounce. Is may understanding correct?
A. The ordinance by the Reich Ministry of Justice, evidently was intended to prevent sentences from being more severe than the prosecutor had demanded. Accordingly to my knowledge that was the purpose of that ordinance. It does not happen infrequently at a German court that the judge passes a considerably more severe sentence than the one which the prosecutor had demanded; and the Reich Ministry of Justice evidently wished to avoid that.