"In the meantime, I do not remember exactly when, martial law had been declared in our area and court martials were established. One day I heard that Count Montgelas had been executed the previous day. At that time I did not think this possible. I was of the opinion that the summary court martial was not competent to deal with this case, because the offense itself had been committed a considerable time before the declaration of martial law. I think I discussed this matter with other judges, but I do not remember with whom. The next day, or very shortly after, the news that Count Montgelas had been sentenced to death by Court Martial and had meanwhile been executed, could also be read in the papers.
"I saw Countess Montgelas a second time, in the late morning of the 16th of April 1945, the day on which the American troops entered Nuremberg. She allegedly wanted to have the body of her executed husband for burial. I asked her to see the Chief Public Prosecutor about this. Personally, I was deeply moved, as I was aware that through my former statements I had given her hope and that now the real course of events had justified nor fears."
On Page 43 Dr. Eser reads and signs the statement, and it bears the usual authenticating marks of other court officials.
Turning now to Page 44 of this same document, which is Page 38 in the German book, letterhead of the Chief Public Prosecutor at Nuremberg-Fuerth, dated Ebermannstadt, 27 June 1946. Minutes. In the presence of local court judge Dr. Geiger as judge and Justice Secretary Straetz as recorder, having been summoned, the witness mentioned below appeared before the judge, who knows him.
"Having been summoned, the witness mentioned below appeared before the judge, who knows him. He was admonished to speak the truth and was instructed accordingly. The person was Eichinger Josef, retired lawyer, married, 59, present residence in Pretzfeld."
Skipping to the bottom of the page, Josef Eichinger testifies as follow "Approximately in February , 1945, Countess Mongelas asked me to take up the defense of her husband.
He was then in the sick-ward of the prison for solitary confinement in Nuernberg. I discussed his case with him, going into all details; I also discussed it with Dr. Mueller who at that time was the expert at the Office of the Assistant Public Prosecutor who handled the matter. The matter was the following: Court Mongelas had been staying at the Grand Hotel in Nuernberg and had met there, among other people, a lady whom he had known far some time. In the course of a conversation he told her that he was also an artist and that he had some of his drawings, probably cartoons, in his room. He then showed the lady, whose name I do not remember, some of these drawings in his room. The conversation turned toward politics and some insulting remarks about Adolf Hitler and prominent party leaders were made. In the opinion of the Prosecution, this was not only an offense against the so-called Law against Malicious Political acts or Insults to the State, but it also involved the criminal act of undermining the Morale of the German Wehrmacht.
Finally, Dr. Mueller, the prosecutor, told me that he recognized the competence of the People's Court , and therefore had submitted the record of the case to the Chief Public Prosecutor of the People's Court for a decision. I asked him to inform me immediately after the record was returned, respectively, after receiving the decision of the Chief Public Prosecutor. He promised me this and I was completely reassured.
"In March and April, 1945, a considerable number of my clients were held for investigation in prisons in Nuernberg. I used to visit them regularly. When, on the 10th of April, 1945, in the office of the prison, I asked the duty officer for a permit to visit Count Mongelas, I noticed that he could not find the files, whereas, on former occasions they had always been right at hand.
Finally his assistant who had helped in the search, said that perhaps they were still downstairs. At this moment the director of the Nuernberg prison, Paulus opened the door of his adjoining office and asked me the object of my visit. I told him that I had come to see Count Mongelas and that I had asked for an interview. Thereupon, he, Paulus, looked at me with a peculiar expression and said, "Would you please step into my office for a moment?" There he told me the following.
"A main session of the court martial had taken place at about 1500 hours on the 5th of April, or five days are. Count Mongelas had been summoned before this court martial the same afternoon at 1400 hours, and had been given a death sentence. The sentence had been executed by shooting on Friday the 6th of April as the Deputy Gauleiter Holz had made no use of his right to pardon."
Skipping to Page 47 which is page 14 in the German text, this same witness, Eichinger, goes on to say:
"As far as I remember the court martial convened on this Thursday, 5 April 1945 which was the first day set for the trial. The last session I know of, was on Saturday 14 April 1945; thus on the last weekday before the American Army began to shell Nuernberg. Then as today, I had the feeling -- founded on newspaper notices and talks with lawyers and law officials -- that the deputy Gauleiter Holz had imposed a court martial law at the eleventh hour in order to reinforce people's will of resistance-as one expressed it then. His adviser in those matters, District Court Director Oeschcy who, at the same time, was a member of the Gaustaff. Evidently Dr. Oeschy and Dr. Schroeder had selected from the files of the Office of the assistant Public Prosecutor those cases which, they thought, should be dealt with by the court martial. In doing this they must have come across the Mongelas case."
Skipping to the next paragraph:
"Then as today I have regarded the verdict of the court martial against Count Mongelas as an injustice, for the following reasons:
"First of all the court martial was not the competent authority because the files, according to the prosecutor Dr. Mueller, were with the Chief Public Prosecutor at the People's Court, at least there was a query, i.e. a report with the question whether the case Mongelas should not be dealt with by the People's Court.
"Furthermore, I am of the opinion that a summons issued at 1400 hours to appear at 1500 hours before a court martial is an offense against justice. Pith such short notice, the defendant is robbed of any possibility to prepare himself for the main proceedings and thus to defend himself adequately.
"Also I am convinced that the defense counsel could have been notified and invited if one had made a genuine attempt to do so, but I know that District Court Director Dr. Oeschey was against the defense counsel. It was quite evidence that in many cases he considered a defense as superfluous.
"The fact that one did not regard it as necessary to notify the competent representative of the Office of the assistant Public Prosecutor, Dr. Mueller, who was dealing with the case, I consider also as an offense.
"If I remember correctly, Chief Public Prosecutor Dr. Schroeder also said that no witness had been summoned for the proceedings. This would have been essential for the reason that the statements of the SS-Fuehrer who had overheard the conversation at the Grand Hotel were important points contradictory to the statements of Count Mongelas, as he told me. I had, therefore, beforehand already proposed to summon the lady with whom Count Mongelas had carried on the conversation in question, as a rebuttal-witness against the SS-Fuehrer.
"Finally, from my conversations with Count Mongelas I had gained the impression that he liked to make abusive, though quite correct, remarks about the great personalities of the so-called Third Reich, but that, on the whole, he led a secluded life and that he was quite harmless and net at all dangerous. This is another reason why I have always considered the death sentence against Count Mongelas as not only much too severe but as an obvious injustice.
"If I had been notified and not been deprived of the possibility to defend Count Mongelas, the death sentence or at least its execution might have been prevented."
Skipping to the signature, it is read and signed by Eichinger with an authenticating signature of Straetz.
DR. SCHUBERT: (Dr. Schubert for the Defendant Oeschey) May it please the Tribunal:
I protest against this document. We are confronted, in contrast to affidavits which have been submitted before, with the result of an investigation which was conducted by German authorities. The documents, themselves, were written in 1946. And in my opinion, the defense is put at a disadvantage because it is not in a position to cross-examine these witnesses who have made statements before German authorities.
Furthermore, I should like to point out that not one of these statements has been sworn to by the witnesses. These are only statements. Theywere not made under oath.
Apart from that, as I could see from the criminal document, the document is incompetent. I have here before me in the original document, the pages 15, 16, 17 and then 10, and 11, then also 19 and 20. That is all that was apparently taken, from a much more extensive file. That fact, the fact that is incompetent in my opinion reduces the relevancy of this document. I point to the last part of the document. That is the letter by Countess Mongelas. It is page 45 of the German Document Book. According to that it may be possible to identify the page in the English Document book. It is page 35 in the English Document Book, Your Honor.
This letter of Countess Mongelas, contains at the very beginning, a reference. It says there "Your letters--" that is to say, the letters by recipient of this letter, "-- of 17-6-46 and of 5 August 1946--" These letters have not been produced yet. In my opinion, however, they are necessary to understand the whole case. Therefore, in this connection, I take the liberty to call attention to a ruling which was passed by Court Number 1 on the occasion of the presentation simple letters.
It ruled that when such letters are presented, the letter which was the cause for the present letter had to be presented. Those are my general objections against this document. And I also want to emphasize one detail. I refer, again, to the last part of the document, the letter by Countess Mongelas. This is a document which has not been taken in the form of a transcript or minutes. It can not even be seen from the letter to whom it is addressed, although in the beginning, there is a stamp "Received 2 September 1946, prosecuting Authorities of the District Court, Nuernberg-Fuerth. But whether this prosecution was really the recipient of that letter can not be seen from the letter itself.
And finally, I point to the testimony of the counsel Eichinger, the last page of that testimony, in the German Document Book on Page 4, from which it can be seen that that statement is signed by Eichinger. That is the man who-made it, and then, by tho man who acted as a cler, that is Straeta. And that Straetz was only a certifying official, that is, a clerk of the court, can be seen from the heading of that document, on Page 38 in the German book in which it is stated under the word "Present": First, the judge, Dr. Geogor, and then the certifying official, Straetz. Now, in order to have a regular transcript, a regular protocol of a German Court, it is necessary, under all circumstances, that the signature of the judge be affixed. It is not sufficient if that transcript is only signed by the certifying official and by the person who has made the statements. Therefore, may I say in conclusion, my objection is directed against the document as a whole; for one, because the defense is put at a disadvantage for not being able to call the witness for cross-examination; secondly, because there are no affidavits presented; and finally, because the probative value is reduced by the fact that the document is incomplete.
My objection also is directed against the letter by Countess Montgelas, in particular, because this is a simple letter and no more; that it cannot be seen from it to whom it is addressed.
My objection goes also against the testimony by Eichinger because it has not been signed as it should be by the judge conducting the interrogation.
MR. WOOLEYHAN: May it please the Court, the prosecution fails to see, first of all, why the defense is placed at any disadvantage to examine witnesses in connection with this document than they are with regard to any affiant with whom per mission has been granted them in the past to cross-examine.
True, it will not be cross-examination on their part insofar as the prosecution has not directly examined them, but the defense is certainly at liberty to call whatever witnesses, in connection with this document, that they so please. I can't see any hardship there at all.
Secondly, with regard to whether or not this document comprises affidavits, the prosecution did not offer them as affidavits. The prosecution offered them at face value for whatever they might be worth, but we do say this, aside from the letter by Countess Montgelas, which on its face is nothing more than an officially solicited letter, the other three documents read have more probative value than an ordinary signed statement for the reason that they were made officially in a judicial manner before judicial authorities, and whether or not the language in them constitutes an oath, the prosecution cannot for one, determine, but at least they are not in the same category with mere signed statements.
Third, with regard to the contention that this document is incomplete and comes from some larger file, we have this to say: we have offered in this document its component four letters, or rather one letter and three official investigation reports. That is all the prosecution was able to secure. Each of the four items are complete in themselves. If the defense cares to undertake to furnish any other portions of the investigation of the Montgelas case, if such other investigations exist, the prosecution would indeed welcome it. We, for one, were unable to find them.
I think that takes care of it.
JUDGE BRAND: May I ask counsel a question? What is the bearing, if any, of the provisions of Rule 21 of the Rules of Procedure, with reference to the manner of taking statements in lieu of an oath, which rules were adopted by this Tribunal, and which I understand were made pursuant to mutual agreements between prosecution and defense counsel.
Does that apply to a case of this kind?
MR. WOOLEYHAN: Your Honor, would you please refresh my memory on the phrase in Rule 21 to which you refer? I haven't it with me.
JUDGE BRAND: It's rather long. I assume that counsel have the Rules of Procedure.
MR. WOOLEYHAN: Is it the wish of the Tribunal that I should read this rule?
THE PRESIDENT: It should be read so that defense counsel have the benefit of this discussion.
JUDGE BRAND: I am not suggesting that it does apply. I am asking if you think it applies.
MR. WOOLEYHAN: I am reading now from Rule 21 of the Rules of Procedure adopted by Military Tribunal III. Rule 21 is entitled: "Procedure for obtaining written statements."
"Statements of witnesses made in lieu of an oath may be admitted in evidence if otherwise competent and admissible, and containing statements having probative value, if the following conditions are met:"
If the Court please, it's the prosecution's position that this rule has no application in the present case for the reason that the document sought to be introduced was not prepared nor gotten up or unearthed or created by the prosecution or any of its agencies. It came to us out of normal channels as an unsolicited offering from German investigating authorities after they had completed their preparations of it, unknown to us. It, therefore, we submit, must be treated as a captured document, fortuitously captured if you like, but nevertheless in the same category.
DR. SCHUBERT: (Attorney for Defendant Oeschey) May it please the Tribunal, may I answer this briefly.
Rule 21, which unfortunately was not known to me up until now, describes that witnesses have to make their statement under oath. Then, in my opinion, this also applies to the document in question because it doesn't make any difference whether it is an investigation by German authorities or by the Prosecution of this Tribunal, because the German authorities also could have received these statements under oath. But furthermore, I should like to object also to this document being put into the same category as captured documents. We can deal only with those of course which have been received before the end of hostilities, but not with those which were made a year and a quarter after the termination of hostilities.
MR. WOOLEYHAN: If the Court please, with regard to the last objection of counsel, the document in discussion obviously does not come under the truth and affidavit; its source is everywhere apparent from the face, and for any question as to its authenticity, both the Court and the Defense have no questions as to where it came from. With regard to the subtle indication by the Defense that evidence prepared after the and of the war is of questionable value, the Prosecution takes the point of view that doesn't bear discussion. I am also familiar with the fact that virtually every document in this case or any other case tried under the charter or Law No. 10 relics in a large measure on evidence either processed, secured, or gathered after the end of the war.
JUDGE BRAND: I should like to suggest that counsel for the defendant seems to have misunderstood Rule 21. He, apparently from his statement, construed it as requiring an oath, whereas the rule relates to statements in lieu of -- that is in place of an oath.
My question goes to this matter, this Rule 21: It seems to apply only to exhibits which are to be prepared by the Defense, because it refers to authentication by Defense Counsel and contains no provisions for authentication by Prosecution Counsel. I am inquiring of you whether the rule is intended, as you understand it, to apply to this case at all. If it does apply, we must enforce it, of course.
MR. WOOLEYHAN: It is my understanding that the rule did not apply to the present case, but apparently for a different reason than the one that the bench has just advanced. It has been the experience in past trials that the Prosecution could be relieved of the burden of submitting all written testimony under oath, and by a provision similar to the one we are discussing, by giving some probative value to signed statements; but that doesn't apply to the present case either, for the reason that the document was not prepared or done at the behest of the Prosecution.
DR. GRUBE: (Attorney for Defendant Lautz) May it please the Tribunal, the prosecutor has stated before that these documents should be considered in the same category as captured documents because they came from German offices, or that they have been placed at the disposal of the prosecution by German authorities.
May I emphasize in case No. 1. the Prosecution presented several verdicts and sentences of German courts concerning the question of Euthanasia; verdicts which were handed down after the end of the war; all of these sentences were rejected by the Tribunal because they were not compatible with Article 7 of Ordinance 7. The Court was of the opinion at that time that only sentences are admissible under Article 7 of Ordinance No. 7 which were pronounced by military courts, but not sentences by German courts, and that also referred to all other proceedings; for instance, in that case a letter was submitted by a Pastor Braun, which also dated from the time after the beginning of the occupation -that also was rejected as inadmissible.
MR. WOOLEYHAN: If the Court please, the precedence cited by the Defense is clearly distinguishable. We seek by offering this document not to set any precedent; this is evidence as to facts, not a tendered example of what the Court should or should not do in deciding a case. This is a substitute by the Prosecution for direct testimony on the stand; it is the best evidence in this context that the Prosecution can offer; evidence as to facts, not cited cases.
THE PRESIDENT: We notice one place in this exhibit where it is stated that the witness was admonished, and it doesn't expressly state that he was sworn to speak the truth. Did you observe that?
MR. WOOLEYHAN: Yes, your Honor, I have, Not only in one place, but in several places throughout the document, the witness was admonished and solemnly told to speak the truth. Now, as I said at the beginning of the argument on this objection, the Prosecution has until now been of the opinion that these documents constitute affidavits with the exception of the Countess Montgelas case, because the administering of oath before German courts is a very informal matter; by that I mean we can show as a matter of proof, if needed, that the German courts used their own discretion in swearing and in not swearing witnesses. The Prosecution was reluctant to state or contend that the language to which you refer constituted an affidavit because we just didn't know, but it is at least arguable that they are.
THE PRESIDENT: What have you to say about the fact that there are two letters also here referred to, which of course have not been sworn to.
MR. WOOLEYHAN: The two letters to which the Tribunal re fers are the two letters concerning Countess Montgelas.
As I stated before, we have offered as the best evidence only four letters, that is one letter and three reports, that were made available to us. We do not regard the omissions as material; we think that the way we treated it today was coherent, with no misleading omissions, but on the other hand, if the Defense would care to find and introduce these two letters, if indeed they exist, we would be very glad to have them.
DR. SCHILF: (Attorney for Defendant Mettgenberg) May it please the Tribunal, I do not intend to further complicate this matter by adding my statements, but I believe it is necessary to explain to the Tribunal that in the German proceedings for investigations, for judicial investigations, quite different methods are used than the Prosecutor seems to assume.
Mr. President, I am referring to the admonishment contained in this transcript; an admonition that means the witness should say the truth, you should tell the truth and nothing but the truth. We know from our experiences that this admonition is also used by the police. That, therefore, when the police questions anybody for any transgression that he always tells him you have to tell the truth now. That has nothing to do with any formula in place of an oath, or similar to an oath, not the form of assurance in lieu of an oath as indicated by that. According to German useage, it is just a method of pointing out that you cannot lie to the official. The witness, however, knows quite well that he is not under oath, and in fact it happens often enough that a person in question knowing that he or she is not under oath definitely lied. May I add the following, according to German useage, so-called ermittlungsverfahren, a preliminary investigation is usually taken care of by the police, carried out by the police. As far as the courts are concerned, procedure becomes relevant only when police files have been deposited with the prosecution, and then the preliminary investigation may be started by the court according to what we have seen in these files, what has been submitted from the files; it was not a case of an investigation before the police, nor was it a socalled responsible investigation, for in German useage a responsible investigation means an interrogation before a Judge, that is to say, before officials of the justice, department or service of justice.
who is entitled to ask to take an oath from a witness or who is entitled to accept an assurance in lieu of an oath because according to German law not every office may accept assurance in lieu of an oath; only those who are specially entitled or privileged to do so. May I say, therefore, that the admonition which is contained in these -- to be found in these files, do not prove that the statement was made in the form of an assurance in lieu of an oath. As a general rule when an assurance in lieu of an oath is given, that is specifically and clearly stated in the document, and with the appropriate formula. Then, it is common use to give a much stronger admonition -- a much stronger one, and not simply an admonition to tell the truth, but pointing out of a special responsibility with reference to the fact that the witnesses' statement is in place of an oath before the court. That is not to be seen here, and I believe I may say it is nothing else than a simple document -- nothing else that a statement before a prepatory or preliminary commission, such as a police officer would be. Before a German court, a statement of this kind would not represent the least probative value.
MR. WOOLEYHAN: That is a rather strong statement. However, the probative value of this document, we are quite willing to leave to the Court. And, in spite of all this talk about what the form of a German oath may or may not be, the Prosecution did not start out and does not end up by offering these documents as affidavits. We offer them on their face as signed statements for whatever they may be worth. The probative value is certainly for the Court to decide.
JUDGE BRAND: May I ask another question? Suppose that in the defendants case in chief they should offer a letter or a signed written statement which categorically and directly denied immaterial allegations against one of the defendants. Would you object to it in evidence if it was written subsequent to the close of the case and for the purpose of being used in evidence?
MR. WOOLEYHAN: We would object to it in evidence your Honor if we were somehow prevented from immediately summoning the writer of that letter for cross examination or direct examination, if we had been the first, as the case might be.
JUDGE BRAND: Irrespective of the manner in which this evidence has been presented. Are you content that the Defense Counsel might call and cross examine any of the persons or all of the persons who purportedly made the statements in this exhibit?
MR. WOOLEYHAN: Certainly.
THE PRESIDENT: We shall take a 15 minute recess at this time, and rule upon this afterwards.
THE MARSHAL: Persons in the Courtroom will please find their seats. The Tribunal is again in session.
THE PRESIDENT: The Tribunal is ready to rule upon the objection that was made before the recess. We do not agree with the persecution that this is a captured document or can be treated as such but it appears in two or three places in the document that this was testimony on summons of a witness during the course of an investigation, and it has many of the characteristics or an oath even though it may not expressly state that an oath was administered. There is some reason to think that it had all of the solemnity of an oath and we therefore receive the document.
DR. SCHUBERT: Dr. Schubert for the defendant Oeschey. May it please the Tribunal, after it has been clarified that the witnesses named in the document who have testified, that I may take them into cross examination I merely want to reserve the right to make an application to call the witnesses for cross examination. Furthermore, I want to reserve the right to object to the admission of the--that I ask for the submission of the entire document. I want to use this opportunity in order to facilitate and speed up the trial to ask the Tribunal a question: it has became the practice here in this Court that after these submissions of an affidavit the defense counsel takes the stand and makes an application -reserves the right to cross examine the witness. The Defense counsel assumes that such an application done as a pre-cautionary measure is necessary in order to give the defense the right to make a cross examination. If that assumption should be incorrect -- that is, if it should be correct, then defense counsel has the right to take a witness on cross examination who has submitted an affidavit, after it has been submitted -- he has the right; anyway, I request the Tribunal to tell us whether this is so because if the Tribunal does so such advance applications would not be necessary.
THE PRESIDENT: Answering Dr. Schubert's inquiry, we will state the rule once for all, that when testimony is offered here in the form of a statement or an affidavit, where the witness has not appeared for cross-examination at the time, defense counsel may, if they are able to do so, produce that witness, without notice by the defense, for purposes of cross-examination, and the witness will not be vouched for us their witness. Does that make the rule clear enough?
DR. WOOLEYHAN: The prosecution now offers as exhibit--******************
THE PRESIDENT: (Interposing): Maybe there should be a little more elaboration of that ruling. Of course, it does not dispense with notifying the prosecution when you are expecting to call a witness. What I mean to say is that it is not necessary to reserve the right in advance. I say that, because you may neglect to make the reservation at the time, and we will not preclude you from calling the witness.
MR. WOOLEYHAN: The prosecution then understands, Your Honor, from that later elaboration of the ruling, that we are to expect the same notice from defense when they call a witness as they have to expect from us.
THE PRESIDENT: Absolutely.
MR. WOOLEYHAN: We offer as Exhibit No. 150, Document NG-513.
THE PRESIDENT: It will be admitted in evidence.
MR. WOOLEYHAN: Referring to document book II, page 19, which is a statute published in 1939, Reichsgesetzblatt, Part I, page 1679:
"Decree of 5 September 1939 against Public Economies".
May I interpolate here for a moment? The German word used in this statute in the original, for "public enemies" is "Volksschaedlinge". "Volksschaedlinge" has been variously translated as "public parasites" and "public enemies". The same meaning is attached to both words for the purpose of the statute.
"Section 1. Looting in Liberated Territory.
"Whoever is found looting in liberated territory or in buildings or rooms voluntarily vacated will be punished by death.
"Trials will be hold by the Special Courts insofar as Military Courts have no jurisdiction.
"The death penalty may be executed by hanging.
"Section 2.
"Whoever commits a crime or offense against the body, life or property taking advantage of air raid protection measures, is punished by hard labor and in particularly severe cases punishable by death."
Skipping to Section 4:
"Exploitation of the State of War a Reason for More Severe Punishment:
"Whoever commits a criminal act exploiting the extraordinary conditions caused by war is punishable beyond the regular punishment limits with hard labor of up to fifteen years or for life, or is punishable by death if the sound common sense of the people requires it on account of the crime being particularly despicable."
We will omit the reading of other portions of that statute at this time.
Turning to book III-C, Document NG-739, beginning on page 68, which is page 64 of the German book, this document is an affidavit reading as follows:
"I, Dr. Karl Ferber, District Court Director"-- May I interpolate a moment and state that "Director" there means "Judge"?--"District Court Judge, retired, Nurnberg, here declare under oath:
"I first became acquainted with the case Katzenberger when Public Prosecutor Mark, about the end of July or the beginning of August 1941, preferred a charge in the Penal Chamber against Katzenberger for having committed an offense against the law of 15 September 1935. So far as I remember, Katzenberger was solely indicted. However"-
I beg the Court's indulgence. My mimeographed copy is weak.
"So far as I remember, Katzenberger was charged"-
If I may be permitted to interpolate this sentence, the original states substantially as follows, as will be borne out in later testimony today. What that sentence means is: "So far as I remember, Katzenberger only was indicted and not Seiler. A decision with regard to Katzenberger's appeal against his arrest was to be taken in conjunction with the opening of the main proceedings.
"Thus, a legal examination was to be held to ascertain whether the proceedings against Katzenberger were to be deferred until the interimquestion, that is, whether Seiler had committed perjury or not, had been answered in the course of an ordinary Penal Chamber proceeding.
"On the same day, before I was even able to obtain a ruling from the Fourth Penal Chamber regarding the case Katzenberger, Public Prosecutor Markl withdrew his indictment. On my question why, Markl told me:
"(a) That this withdrawal was not an order from the Ministry, but "(b) Rothaug's demand, because "(c) Rothaug was planning to make a special discriminatory case of Katzenberger under the Public Enemy Decree.
"(d) Rothaug then rejected Katzenberger's appeal against his detention. This I learned through the return of a permit to speak? to the defendant, which I had previously handed to the defense counsel Herz.
"When in those days the case Katzenberger was discussed for the first time in Rothaug's presence, I immediately voiced my doubts about the application of the Public Enemy Decree.
"In the literature it was at that time strongly disputed whether matrimonial offenses, adultery, with the wife of a frontline soldier could be punished under the Public Enemy Decree. This question was denied in principle.
"I also pointed out that the case concerning Seiler's perjury would have to be decided by tho competent Penal Chamber first of all.
"Rothaug immediately announced with all his usual vehemence:
"That this deed of Katzenberger's fell within the sphere of the people in its entirety, that is, this, 'according to the sound sentiment of the people--and this was as an inference of the Fuehrer's Decree--was the deed of a public enemy, apparently, in contrast to other adulterous relationships of a German to the wife of a front-line soldier.