MR. KING: May I ask the Court to refer again to document 531, which we, just prior to recess, introduced as Prosecution Exhibit 233? There is a mistake in translation which I would like to call the Court's attention to at this time. I think it only occurs in the English book, therefore it is not one of these matters to be taken up by the Translating Complaints Committee.
Referring to page 124, the second sentence in the second paragraph on that page; that second sentence should read as follows. There is no objection, certainly , to the defense counsel following this in their German text, and I think they will agree that the translation which I am about to give is the correct one, and the one I gave before incorrect. The second sentence should read:
"They always sought to suppress such attempts to explain psychologically the action under trial and thus to help the defendant, and thus they tried to restrict the issue to the question of responsible or not responsible."
The way it was read originally gives just the opposite impression, since there was a negative omitted.
THE PRESIDENT: Would you state that again? I don't believe I got it.
MR. KING: The sentence should read:
"They always sought to suppress such attempts to explain psychologically the action under trial and thus to help the defendant, and thus they tried to restrict the issue to the short question of responsible or not responsible."
JUDGE BRAND: Our text doesn't read either the way you have just read it nor the way you have read it before. Do you claim that it should read that they were attempting to help the defendant? The text we have says they were attempting to tie down the defendant and to restrict the the issue.
MR. KING: Yes, that is correct. I mean, it is correct that the original text says that. That whole sentence, however, should be retranslated. So, if you will disregard the sentence as it appears in the text and accept the one which I read a few moments ago -
JUDGE BRAND: And you intended to read that they were attempting to help the defendant?
MR. KING: No, quite the contrary.
JUDGE BRAND: That is what you said.
THE PRESIDENT : I suggest that you prepare another page to substitute for this page, and then we will have it without question. That will be the simpler way of doing it.
MR. KING: All right, Your honor, we will submit a substitute page for 124 in the English text. I think defense counsel, as I said before, have no particular interest in this because I believe the German is correct. However, we will submit an English text to them for checking as well.
May we turn now to page 129 in the English, also page 129 in the German. This is document NG-654, and will be, when introduced and formally offered in evidence, prosecution exhibit 234. This is the sworn affidavit of Kurt Hofmann:
"I, Kurt Hofmann, Public Prosecutor, retired, residing in Memmingen, Zollerpromenade 3, hereby declare under oath:
"I was born on 15 October 1908 in Darmstadt. From 1927 to 1931 I studied law in Munich and Vienna. After passing my first state examination I went through my judicial preparatory service in courts and in the administration of Munich and Pasing. In April 1934 I passed my state examination for higher judicial and administrative services. Then I was employed as a judicial assistant in the town council in Pasing.
On 1 August 1935, I entered the administration of justice as assistant judge, working first for four months at the District Court Memmingen, and then, for nine months, in the same capacity, at the local Court of Passau. On 1 September, 194_" -- the date is not clear in my copy --"19__, I became Public Prosecutor at the District Court, Nurnberg-Fuerth. After having been Deputy Public Prosecutor for half a year at the local court of Fuerth, I worked in Nurnberg on different cases relating to general criminal matters. On 1 December 1940, I had to take over cases classified "lc" upon instructions of the General Public Prosecutor, and thus I attended trials of the Nurnberg Special Court until I was drafted into the Army on 2 November 1942.
"I was a member of the NSDAP since 1 May 1937. From December 1939 until March 1941 I had to take over the wartime duties of the Block Leader, without being confirmed or sworn in, however. Besides, I was a sponsoring member of the NSKK"-that should read "from the fall of 1938."
"From December 1940 until October 1942 I had to act as Public Prosecutor at the Nurnberg Special Court, where Rothaug, the former chief of the district court, was presiding judge. His way of conducting a trial was extraordinarily severe and forceful. He was a pitiless fanatic and was so thoroughly convinced of the correctness of his opinion on a case that nothing could make him change his mind. Consequently, he could not stand any contradiction. He also knew right from the beginning how to handle and present a case in court, so that all participants at the trial were completely drawn into the spell of his opinion and thus forced in an almost hypnotic way to accept it. He achieved this so much easier, because he would not permit anything or anybody to interfere with his way of conducting a trial.
"Being a representative of the prosecution I did not participate in the deliberations of the verdict after the pleading. I therefore am not able to say how these very several cases were arrived at which the Special Court, with Rothaug as presiding judge, pronounced. But there is no doubt that it was his opinion and his will which were expressed in those sentences, especially as he was able to put his wishes through everywhere.
"Upon instruction from the Ministry of Justice it was the general duty of public prosecutors to discuss with the presiding judge, before the pleadings started, what penalty should be asked. Rothaug and Oeschey usually complied with this procedure by arranging a recess. During the recess the public prosecutor went into the conference room, where he was informed as to what kind of a sentence the tribunal intended to pronounce."
We skip the next two paragraphs, beginning with the third paragraph on page 131 in the English text;
"Similar to Roghaug, Oeschey also knew how to hypnotize those who participated in a session by directing a trial right from the beginning towards a certain aim. He used terror and an almost magic influence, so that eventually the participants had to look upon his point of view as being right or at least acceptable. Just like Rothaug, he did not tolerate any contradiction and frequently became aggressive. His treatment of defendants during sessions was mearly always directed towards intimidation; it therefore must be regarded as an inadmissible restriction of the defense. Trials conducted on a purely objective basis without insults to the defendants by the presiding judge were exceptions as far as Oeschey or Rothaug are concerned."
We now skip down to the first full paragraph on page 133 in the English text, and it must be the last paragraph on page 132 in the German:
"If Oeschey proceeded in such a manner with German nationals, he was essentially even more severe with regard to sentences against foreigners and much more furious in his conduct of their trials, especially in the case of Poles.
"Oeschey was particularly displeased with the fact that the interpreters did not translate his abuses and insults literally and thus could not create the necessary frightening impression on foreigners who did not understand German. These sentences corresponded with the wishes of the National Socialist criminal justice; but it is significant that Oeschey energetically fruthered the idea of elimination with his bloodthirsty jurisdiction."
The statement is signed by Kurt Hofmann, Public Prosecutor, retired.
Defense counsel has kindly called to me attention the date which I was unable to supply a few minutes ago on page 129 in the English text. It should read September 1936.
The prosecution offers at this time the document NG-654 as Exhibit 234.
THE PRESIDENT: The document will be received in evidence.
MR. KING: May I ask the Court to now turn to page 93 in the English text; that is on page 98 of the German. Excuse me, 97 of the German. This is the sworn affidavit of Theodor Pfaff:
I, Dr. Theodor PFAFF, Magistrate, retired, residing in Munich, Queristrasse 6, hereby declare under oath:
"If, during ROTHAUG's time, conditions at the Special Court of Nuernberg were disreputable, they certainly did not improved when OESCHEY assumed office. In a way, OESCHEY was even ruder and more brutal than ROTHAUG towards defendants. He was frequently aggressive and I always disapproved his use of expressions which to me, as a judge, were completely strange.
"OESCHEY, as well as ROTHAUG, knew how to convince associate justice of the justness of the severe National Socialist war legislation. He was able to influence us by means of a certain suggestive power. Just like his predecessor, he advocated the theory of "extermination" and was of the opinion that foreign workers had to be servants of the Reich.
"I must mention the case of KAMINSKA and WDOWEN as the most terible of my entire career. Neither of the two defendants had been previously convicted but both were sentenced to death. In this case I was charged with drafting the sentence but was by no means convinced that the crime warranted the death of the two defendants. OESCHEY clearly told me that I apparently had not yet realized the great danger which the Poles constituted and that I did not fully understand the seriousness of crimes in wartime. In this case, however, it was neither a question of a grave offence nor of dangerous attack on the German rural population. KAMINSKA had merely had an argument with a soldier and they had boxed one another's ears. Half an hour after this incident, as the soldier was passing by on a bicycle, the Polish woman threw a stone at him, but missed. OESCHEY voiced the opinion that the Polish woman had intended to injure the soldier seriously and thus interpreted the act as a premeditated assault. He even went so far as to com pare a stone, weighing half a pound, with a broadsword, a stabbing weapon and firearm, WDOWEN, hearing the frightened KAMINSKA's shouts for help ran to her and held her with both hands while she was being arrested.
OESCHEY assumed that WDOWEN had forcefully tried to liberate KAMINSKA and, in this way, had tried to prevent the police officer in the exercise of his duty. OESCHEY further assumed that WDOWEN had done this in the belief that he would not be punished, since the war had necessitated a reduction in the security police force of the Reich. The sentence of death and the consequent execution of these Poles offended my sense of ethics and has continually preyed upon my conscience. I would like to state, here that OESCHEY forced his will upon us.
Michael SCHMIDT had many previous convictions, and had twice been sentenced to the penitentiary. His last sentence however, had occurred 9 years ago. He was condemmed to death for stealing 229 pieces of flypaper. As a man of humane sentiments, I must admit this crimes did not warrant the death penalty. OESCHEY felt that flypaper had special value in war time and the demand for just expiation required the extermination of the accused. My objections to such an inhuman exaggeration of punishment was coldly rejected by OESCHEY, SCHMIDT was executed."
We now turn to the first full paragraph on page 95 that is the last paragraph on page 99 of the German text: "Boehm was a railway employee of the "Reichs Bahn" who had stolen a few suitcases and parcels. Doubtless such acts should be punished severely if only to serve as a warning. Still, from the humane point of view, BOEHM did not deserve the death sentence. It must be mentioned that the defendant had not been previously convicted; he could not therefore be considered a habitual criminal following an inner urge to steal, and this fact certainly should have been considered as an extenuating circumstance.
OESCHEY, by almost hypnotizing us, was able to enforce his will in the deliberations of the verdict and rudely rejected my attempt to save the man's life. He referred to his political position as Gau Legal Adviser and explained that, as a representative of National Socialist justice he well knew what kind of people did not deserve to live. BOEHM was sentenced to death and executed."
We skip to the last short paragraph on page 95: "Oeschey was on the whole a man who valued human life extremely little. He was a fanatic National Socialist who would not be directed by others, but forced us associate judges to apply the intensified war decrees." The statement is signed: "Dr. Theodor Pfaff, Magistrate retired."
The Prosecution offers at this time the Document NG-635 as Exhibit 235.
THE PRESIDENT: The document will be received in evidence.
MR. KING: I ask the Court to turn now to page 74 in the English text, Document NG-624, which will become, when formally offered in evidence, Prosecution's Exhibit 236. This is a sworn affidavit of Friedrich Doebig:
"I, Friedrich Doebig, born 5 March 1887, Noerdlingen/Schwaben, formerly Senate President at the Reich Supreme Court, hereby declare under oath concerning the case of OESCHEY:" Skipping down to the next paragraph the fifth line, I begin: "In Nurnberg, OESCHEY was first appointed associate judge at the Special Court. Sometime in the summer of 1940, the Gau authorities appointed him Chief of the Gau Legal Office. The heads of the N.S. Lawyer's League appointed him leader of the National Socialist Lawyer's League for the Gau Franken. After OESCHEY, again on the suggestion of the Gau authorities, had been promoted to the position of Presiding Judge of the According to my recollections, he became Presiding Judge of the Special Court, shortly after ROTHAUG's departure from Nurnberg.
"It was my impression that OESCHEY had been very close to ROTHAUG, at least until 1943, and it was obviously his intention to imitate ROTHAUG's methods at the Special Court. He proved unsuccessful in this respect, however, since he was far below ROTHAUG in intelligence as well as in professional ability. He seemed to be a morose introvert, who frequently impressed me as not being satisfied with himself. He enjoyed no popularity among his colleagues. His manner of conducting a trial showed little skill;
he preferred to stick closely to the case records and by far did not maintain that thorough grasp on the whole material of a trial which had been apparent under Rothaug. Loss of temper and insults at the expense of the participants in the trial occurred not infrequently under him. They were, as befitted his character, even more crude than those of Rothaug.
"Geschey, like Rothaug, was a fanatical Nazi who consistently interpreted and enforced the law in accord with Nazi ideologies. He did not permit humane considerations and restrictions to interfere with his methods. He occasionally gave criminal cases a political interpretation which was not borne out by the facts."
Skipping down five lines: "In the case of Strobel, which was recently called to my attention, the Nuernberg Special Court under Oeschen's presidency in 1944 sentenced to death a defendant, who had been convicted previously, as a dangerous habitual criminal, although he was charged solely with a violation of the Law Malicious Political Attacks on State and Party and had been convicted on this count alone. As was evident in the protocol, the attention of the defendant had not been drawn to the charge in the legal interpretation of his deed. This, doubtless, was unlawful. In general, it is dubious whether a violation of me "Heimtueckegesetz," being a political offense, would suffice to recognize criminal inclinations in the perpetrator and to classify his character as that of a dangerous, habitual criminal."
We do not at this time especially wish to call the Court's attention any more to this affidavit, except to note that it is signed by "Friedrich Doebig." We therefore offer the Document NG-624 as Prosecution's Exhibit 236.
THE PRESIDENT: The document will be received in evidence.
MR. KING: May I ask the Court to turn to page 31 in Document Book III-I; it is also 31 in the German text. This is an additional affidavit of Friedrich Doebig; it is Document NG-625, and will when formally offered in evidence become Prosecution's Exhibit 237.
We would like to begin reading from this document about five lines from the bottom of the first principle paragraph: "On 1 October 1937 I was given the vacant office of President of the Nurnberg District Court of Appeal. At the instigation of tho Gauleitung of Franken I was transferred to the Reich Court as President of the Senate by minister Thierack on 1 July 1943 because of political unreliability."
We now turn to page 32 in the English text; that is also page 32 of the German text, beginning three lines from the top in the English text?. "More and more he gained entry and hearing with high and highest Party agencies."
in my opinion he obtained this connections especially through his active friendship with the former innkeeper and Gau inspector HABERKERN, who ran the restaurant "Blue Crape", where the Partys representatives used to stay and were Rothaug was a frequent visitor. It was generally said, that Rothaug had a regular table there and around which he assembled his intimates followers, and were judicial matters were also discussed. From my own knowledge, I can say nothing about this because I conscientiously avoided at his disposal. Sometimes it was rumored that he collaborated with the SD and thus kept up connections with the Reich Security Main Office. But I was never get reliable information about this during official activities in Nuremberg" We turn now to page 33 of the English text, which is near the bottom of the German text, page 33, also, beginning with the second paragraph:
"A very dark chapter in Rothaug's Activity is the way in which he presided over the special Court. Quite often this was so uncontrolled that I felt it unreasonnable for the accessors to have to sit and administer justice of the same bench as this president. For instance in the well-know trial against the two chaplain Schmidt and Fasel for indicent assault, when the co-defendant Fasel, after the interrogation of a female witness, again asked to be allowed to speak, it was plainly shoking for ROTHAUG to roar at him maliciously "Shut up you dirthy priest". This incident which happend before I took over as president of the District Court of Appeal, and rumors about other misdemeanors of ROTHAUG caused me, after I had taken over as President of the Court, of Appeal, to participate in the sessions of the Special Court as often as possible. I became an aural-witness of the repulsive way in which ROTHAUG troated the participants in the trials; of now during the hearing of defendants he made derisive remarks, and how especially with defendants who would probably receive the death sentence, he refereed cynically and sometimes even sadistically to the fate they had to expect and how with witnesses, especially defense witnesses, he used harsh langua ge, in short he gravely, abused the first duty of a judge, to direct the trials objectively and without prejudice.
Sometimes I could not rid myself of the impression that ROTHAUG approached a case with a preconceived opinion and directed the trials and the whole proceedings according to this opinion. He kept a tight he cut them quite unjustifiably short." Skipping the next paragraph, we begin "It is a well-know, fact that the jurisdiction of the Nuernberg special Court under ROTHAUG's presidency was of an excessive severity, sometimes scarcely compatible with normal conceptions conceptions of justice. It is not surprising that ROTHAUG was sometimes called "the bloody judge" or the "hangman" of Nuernberg I heard later on that in legal circles he was (even supposed to have boasted about this nicknames. This brutal attitude can only be explained by the fact that ROTHAUG, in his political fanaticism, though of himself as a judge who was singled out to boost National Socialist Law and to act as a champion of National Socialist conceptions of Law, whereas for the majority of the German.
Judges the fatal Reichstag resolution of 26 April 1942, which belongs to the darkest chapters of German legal history, came as a severe blow, ROTHAUG, considered it as an act of liberation. He had often expressed the opinion that one day at least the administration of criminal justice would be taken over by the Ministry of the interior, i.e. by Himmler."
This is all of this document that we care to especially direct the Court's attention to at this time. We suggest, however, that the Court would find it of interest to read further than we have read aloud here this afternoon. We, therefore, offer the document, NG-625, as Prosecution's Exhibit No. 237.
THE PRESIDENT: The document will be received in evidence.
MR. KING: That completes the documents from Book III-I. May I ask if the Secretary General has brought this afternoon the Book "L". There are two documents in Book "L" which the Prosecution would like to present at this time, with only brief explanations and without reading. The remainder of Book "L" we will try to present next week. May I ask the Court to first turn to page 164 in the English text, and that is page 143 in the German. This document will be referred to occasionally in connection with some of the case records that are being presented by the Prosecution. It purports to be, and the Prosecution maintains that it is indeed a list of death sentences pronounced by the Special Court of Nurnberg, and carried out pursuant to those sentences. The Court will notice on page 169 in the English text that the list is signed by Paeumler, who was Inspector of Justice at the time.
THE PRESIDENT: Do we understand that in each and all of these cases the defendant Rothaug had a part?
MR. KING: No, your Honor should not draw that conclusion from the fact that the list is being presented. The defendant Rothaug and Oeschey in many of these cases were either the presiding judge, the president of the court, or sat on the court which passed the death sentence, but we don't at this time link the death sentences up with any particular judge. As I said at the outset, we will refer to these from time to time and we want to get the list in evidence.
THE PRESIDENT: I would like to inquire whether inasmuch as the dates -
INTERPRETER: Your microphone is nor working, your Honor.
THE PRESIDENT: Mr. Prosecutor, I can cake myself heard, I think, without the microphone, and I will not make any further remarks about this, and you may proceed as though I had not interrupted you.
MR. KING: We are not operating without the aid of science, I take it. I want to say just one word in connection with your Honor's question.
I think it is clear from the statement which appeared on 167 of the English text that this may not be the complete list of death sentences pronounced and carried out, but it seems to be the most complete list which can be produced under the present conditions. I think the fact that it is not complete will have no bearing on subsequent use to be made of it by the Prosecution. We will limit our reference to the cases that appear.
THE PRESIDENT: Nevertheless, you are offering tho entire exhibit in evidence?
MR. KING: That is correct, Your Honor, as NG-409. We offer it as Prosecution Exhibit 238.
THE PRESIDENT: It will be received in evidence.
MR. KING: I have one more document in the Book 3-L that I would like to present at this time. It is the Document NG-637, and will become, when formally offered into evidence, the Prosecution Exhibit 239. It is to be found on page 172 of the English text and page 155 of the German. It consists of abstracts from the volume of International Law by Hyde, Second Edition, 1945, from Volume I, Part II, entitled, "Normal Rights and Duties of State." We wish at this time to offer the document into evidence without further reading or reference at this time. The Document 637, NG-637 is therefore offered as Prosecution Exhibit 239.
THE PRESIDENT: Let us have a clear understanding. You are not offering the entire volume?
MR. KING: No; just offering the excerpts which appear in the document NG-637.
THE PRESIDENT: It will be received in evidence.
MR. KING: Thank you. Unless Your Honors have further statements to make--or there are further statements from the Defense--I am afraid we are going to end this session ten minutes early, for the Prosecution has no more to offer this afternoon.
THE PRESIDENT: We will at this time recess until next Tuesday morning at 9:30 o'clock in the regular room where this Tribunal has been holding its session.
(The Tribunal adjourned until 8 April 1947, at 0930 hours.)
Official transcript of the American Military Tribunal in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nuernberg, Germany, on 8 April 1947, 0930-1630, Justice Carrington T. Marshall presiding.
THE MARSHAL: Persons in the courtroom will please find their seats. The Honorable, the Judges of Military Tribunal 3. Military Tribunal 3 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 in their places.
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of the defendants Rothaug and Engert, who are absent due to illness.
THE PRESIDENT: Let the proper notation be made.
MR. WOOLEYHAN: May it please the Court, the prosecution has taken the liberty of making available the first thing this morning the witness Ferber, in the hope that cross-examination could continue at this time.
THE PRESIDENT: It may be so ordered.
DR. KOESSL: May it please the Court, I ask for permission to continue the cross-examination of the witness Ferber.
THE PRESIDENT: You may proceed.
KARL FERBER (Resumed) CROSS-EXAMINATION (Continued) BY DR. KOESSL:
Q. Witness, is there any connection between the defendant Rothaug and political propaganda?
A. I did not hear your last words.
Q. The reproach that the trials conducted by Rothaug were political propaganda - is that a new reproach or was it mentioned before the war or during the war?
A. That reproach was raised for the first time when the trial of Schmitt-Fasl was being conducted. That was in the summer of 1937. At that time the expert, Mr. Emmert, later Oberlandesgerichtspraesident (President of the District Court of Appeals), talked about the fact that it had not been his intention to conduct the trial in this manner - the trial of the two priests.
Q. Thus, who raised this reproach?
A. This reproach came from the circles of the Judicial Justice Administration.
Q. How did Rothaug react to this reproach?
A. It was mentioned that in the trial of these two chaplains, Schmitt-Fasl, Rothaug had a man removed from the court chamber who he thought was a Jew. Actually this man was a Roman university professor who had heard about this trial on his way through Nuernberg and had now appeared in the audience.
Just this incident caused some excitement because there had to be an excuse made.
After this trial Rothaug said that the people had to be taught the National Socialist manner of conducting a trial and in this sense he said things along these lines. He said that the people would not understand if there was a relatively high penalty imposed upon some statement or other; the political grounds for their understanding of the action by the State has to be prepared. At that time, in 1937-1938, Rothaug was in charge.
I told this to Daenzler, at that time the Gaufuehrer of the NSDAP, who was the Chief Public Prosecutor, under whom I was working. I reported about this to him, that Rothaug said, "I feel obliged to continue the National Socialist revolution within the framework of judicial procedure."
Q. Is it correct that the strict laws, for those of political inexperience, were a great danger?
A. The strict laws? I mean those which brought about a framework of justice which was no longer in accordance with a normal one were criticized, only not before 1939. To that extent it was proper to point out these strict threats of penalty to the public.