Q Witness, did the court have the possibility, in regard to the acts which Skovron committed at the age of less than 18 years, that is, as a juvenile, to consider them in pronouncing a sentence?
A I suppose so, but here I am not quite sure of my statement.
Q Witness, how long did the trial last?
AAbout two hours.
Q How long did the consideration of the court last after that?
A I believe a half hour.
Q How long did the pronouncing of the sentence last, and the opinion?
A I cannot remember that but, in any case, not very long.
Q It was not so that you could say so. As I said, I do not remember that.
DR. BRIEGER: Thank you very much witness, that is all.
MR. LAFOLLETTE: I have no questions.
THE PRESIDENT: The witness may be excused.
THE PRESIDENT: Dr. Schubert, did you want to interrogate this witness?
DR. SCHUBERT: No, Your Honor.
THE PRESIDENT: Bring back the other witness, please.
DR. SCHUBERT: May it please the Court: Just now, from the statements of Mr Lafollette, which took place before the examination of this witness, I heard to my regret, that the prosecution had difficulty in speaking with the witnesses who were brought here for purposes of cross examination. Personally, I did not know about these difficulties and I believe that no one of my colleagues knows anything about that either. I suppose that these difficulties were brought about by an error. Yesterday, I happened to see the summons which a witness had received, which consisted of a telegram. On this summons it said, "You are summoned as a witness for the defense.". Obviously the gentleman of the Defense Center have formed an erroneous opinion that these witnesses are not witnesses of the prosecution, but witnesses of the defense. I do not know whether that is the reason, but it is possible. In any case I want to state that the defense counsel themselves have not taken any steps to that effect and I am very sorry that the prosecution had any difficulties of any kind which, naturally, should have been avoided on our part.
MR. LAFOLLETTE: I have no feeling that defense counsel were responsible; there was a mis-understanding in Defense Center, and I ask the Court to advise the Defense Center that they are under misapprehension. Of course, I have no feeling that defense counsel are responsible.
THE PRESIDENT: Proceed with the examination of this witness.
BY DR. KOESSL (for the defendant Rothaug) Q.- Witness, were the factual determinations in the Katzenberger case carried out with the necessary conscientiousness?
A.- That the determination of the facts - that is, the working out of the individual circumstances - were carried out conscientiously I cannot deny.
Q.- Do you know with certainty that in the Katzenberger case Rothaug gave you directives for the plea?
A.- Rothaug frequently, even in non-political cases, gave me hints for my plea. That, that happened also in the Katzenberger case I can not remember any more today with absolute certainty. But I do know with certainty that before I made my plea I was in his counsel chamber. On the occasion of my examination the witness Ferber was confronted to me, he stated that Rothaug had given me instructions of that kind also in this case.
Q.- In your affidavit you are speaking of the most atrocious outbreak of hate against Jewry. What discussions were you thinking of in making this statement?
A.- I can no longer remember details. We are here just concerned with statements which Rothaug made in the framework of the opinion -- above all, in connection with the explanation of the reasons for the supposition that this was a case of special severity under the Decree Against Public Enemies.
Q.- Now, we shall go over to the case of Durka and Strus. The Durka and Strus case was, according to your statement, carried out with the expeditiousness usual in civilian courts martial. -- Was the quick sentence in accordance with the general directives, or was that only done at the urging of Rothaug?
A.- There was a general directive issued by the Ministry of Justice which was originated by Freisler or Thierack, and which required that the Special Courts should deal suitable cases with the quickness of a civilian courts martial. That in the case under consideration Rothaug was the driving force I do not believe. However, he did whatever was in his power in order to bring about the expeditious carrying out of the trial to a sure end as far as he had anything to say about it.
Q.- Through the expeditious manner of the handling of the trial were exact determinations limited?
A.- No, the facts in this case, too, were found out with thoroughness. I still remember the case very well. It concerned two Polish women who were accused of arson in an armament industry. One of the Polish women confessed and I remember with certainty that she also confessed before the Court. The other witness denied before the court that she committed arson.
Q.- You just said the other woman witness. Did you mean the other defendant?
A.- I have to correct myself... The other defendant denied before the court that she committed the crime. The problem of this trial was, should the confession of the one defendant be given such credibility that by means of it the co-defendant who denied the crime would be charged also by means of this confession. To that effect, during the examination of this defendant all psychological possibilities were exhausted in order to clarify whether motives of hatred and of enmity against the co-defendant were the cause for the testimony which was against her. After the submission of the evidence had been completed I arrived at the conviction that the confession of this defendant had to be considered credible also to the extent of - by means of it - convicting the co-defendant who denied the crime.
During a recess - possibly during the consideration of the sentence -- I spoke to the General Public Prosecutor Dr. Bens who was present in the court room, I believe, with Oberlandesgerichts President Doebig and Bens, who adressed me, suggested that we should again examine the truthfulness of the confession of the one defendant by having another witness called I believe the investigating police official Q.- Did this happen?
A.- Yes, even though I personally had already made my opinion unequivocally I followed the instructions that I was given - as was my duty to do - and I informed Rothaug that the examination of this witness was still desired. Rothaug agreed. The witness was called. He confirmed... I wand to correct myself... he gave his testimony - and the result was that the very last doubt in the correctness of the confession of the one woman defendant was now also eliminated.
Q.- One further question. Do you remember that the court had a document before them, in which both the defendants confessed the crime and gave patriotic motives for their crime?
A I do remember something about this; I believe that is correct.
Q As to the crime directed against the factory, was that classified as a damaging of defensive materials?
A The damage which was actually done was not very large, but the danger which was brought about for the factory through this deed was very large. According to my firm conviction, which I had then and still have today, it was an unequivocal act of sabotage which, especially during time of war, would probably be punished by death in most countries.
Q Now, I want to come to the Wendel sentence. Do you know whether Rothaug, in the Wendel case, was outvoted by his associate judges in the first sentencing?
A I did not participate in the discussions leading to that sentence and therefore I cannot answer the question directly. However, I believe I remember that in the discussions before the plea he expressed the thought that the matter was atoned for sufficiently by a penitentiary sentence of some length, but I cannot say that with one hundred percent certainty.
Q In the Kleinlein-Schaller case, you speak about a letter by Rothaug to the Prosecution. Was this letter an intervention in the competence of the Prosecution, which was not admissable under the code of legal procedure?
A That is also a legal question of procedure of a trial; it is difficult to decide. I do not consider it inadmissable, but it was absolutely unusual.
Q As the Prosecutor, how did you evaluate this letter?
A I could regard it as a request for submission of a supplementary indictment, or as a hint to the effect that during the trial a change of the legal point of view would take place.
Q Can you still remember that the General Public Prosecutor, one entire week before this letter which Rothaug wrote, had issued instructions according to which the death penalty against Schaller had been applied for?
MR. WOOLEYHAN: Your Honor, I object to the way this question is phrased in that he has gone far beyond describing what the question or the letter might have been and is stating the answer. That question can be asked the witness in a much less leading manner.
THE PRESIDENT: It is cross-examination. Objection overruled.
BY DR. KOESSL:
Q I will repeat my question. Can you still remember that the General Public Prosecutor, an entire week before the letter which Rothaug wrote, directed instructions to the Senior Public Prosecutor to ask for the death penalty against Schaller; and, in regard to Kleinlein, to make the plea for a death penalty dependent upon the result of the trial?
A The matter does not sound strange or foreign to me, but I do not have a certain memory of it.
Q Can you identify a document of the General Public Prosecutor as such? I mean, would you know a document of the General Public Prosecutor here?
A Yes.
Q I am asking you whether the document I just handed you represents a letter from the General Public Prosecutor in Nurnberg, and I request you to state on which day it was written, who signed it, and who certified it.
A This is without any doubt a copy of a regulation of the General Public Prosecutor to the Senior Public Prosecutor. It is not originally signed, but the signature of the General Public Prosecutor, Dr. Bens, is certified. As a rule the instructions of the General Public Prosecutor were given to us in this form.
Q Please state what the date of this instruction is.
A The document has the date 13 January 1943.
Q Who composed it? The letterhead states it is from whom?
AAs I have already said, it came from the General Public Prosecutor.
Q To whom is it directed?
A To the Senior Public Prosecutor, the Oberstaatsanwalt.
Q Who signed it and who certified it?
AAccording to the certification, it seems to be the signature of General Public Prosecutor Bens. It is certified by Kolb, who was an employee of the Justice Department, who put the stamp on it.
Q Please read these two sentences here (indicating).
A I am reading as you desire: "The decision as to whether it is absolutely necessary to apply for the most serious or the heaviest penalty against the twenty-year old defendant will have to be left to the main trial."
Q And the next sentence?
A "On the other hand, in my opinion it has to be seriously considered whether the death penalty should not be asked for against the co-defendant Schaller."
Q Thank you. I am now coming to the Ketterer case. From what points of view could Ketterer, because of his deed, be sentenced to death at that time?
A Since I do not have the file before me I cannot answer this question clearly. Probably he could be punished by death as a dangerous habitual criminal as well as a public enemy.
Q In your affidavit you write that the directives of the Reich Ministry of Justice had not been reported to you. Therefore, I am asking you whether it was a task which Rothaug was supposed to take care of, to inform you about the directives of the Reich Ministry of Justice.
A In regard to the first question, I said already that I do not recall the case sufficiently well enough as to whether I actually did not receive the directive. I gathered that from the report which is in the files, and which I had addressed to the General Prosecutor, in which I had stated the facts which are in my affidavit.
In regard to the second question, it was, of course, not the task of Rothaug to forward directives of the Ministry to me, for such directives normally went via the General Public Prosecutor in exceptional cases immediately from the Ministry to the Oberstaatsanwalt, the Senior Public Prosecutor, but not via the presiding judge of the court.
Q All right. In regard to the case Horn, I want to ask you, did this sentence in the Horn case conform to the general line of the jurisdiction of that time in regard to stealing from the field post?
A In this case it is important to consider at what time, this happened, especially in the field of thefts from field posts, strong guidance by the higher authorities of justice took place. Originally, only in cases of thefts and embezzlements of one hundred and more letters or packages, in the normal case, if no special reasons for the prosecution or defense appeared -- I am saying that only in embezzlements of more than one hundred pieces should the death penalty be asked for. This figure was lowered more and more in the course of time, and finally, if twenty letters or packages were stolen or embezzled, the death penalty was asked for according to the directives, and probably also according to the general jurisdiction which prevailed.
Q During your activity as prosecutor, in your attitude toward the clemency question did you always take into consideration all points of view which spoke for the convicted person?
A I regarded it as my natural professional duty and of my conscience to take into consideration all the points of view which spoke in favor of a convicted person and to incorporate them into the draft of the clemency report, because only in that way could a just decision about the pardon be assured.
Q Can you remember cases in which sentences of the Special Court were quashed by means of clemency proceedings?
A Yes, I remember several such cases.
Q Can you remember whether the defense asked for the reopening of a case in favor of a defendant?
A The method of reopening a case was repeatedly used by the defense counsel.
THE PRESIDENT: We will recess at this point.
DR. KOESSL: May it please the Court, I wanted to put only one more question, and after that I would be finished with this witness. May I be permitted to do so?
THE PRESIDENT: You may.
BY DR. KOESSL:
Q Can you remember that authorities outside of this Special Court, such as the Senate of the District Court of Appeals, in answer to a complaint, approved the sentences of Rothaug?
A That was conceivable in cases in which the reopening of a case had been applied for and the Penal Chamber had either regarded the reopening of the case inadmissible or had in any other way refused it. The matter went, by way of complaint, to the President of the District Court of Appeals and he, on his part, considered the complaint. I do not recall any case in which, by means of the Penal Chamber or the Senate of the District Court of Appeals, the quashing and examination of a sentence had been ordered by means of regular procedure. However, I cannot exclude the possibility, I just do not remember it.
DR. KOESSL: Thank you. I have no further questions.
MR. WOOLEYHAN: Your Honor, I have a couple of re-direct questions I would like to ask the witness.
THE PRESIDENT: I think, then, we had better recess at this time, and for certain reasons we will recess until two o'clock.
(A recess was taken until 1400 hours)
AFTERNOON SESSION (The hearing reconvend at 1400 hours, 27 May, 1947.)
DR. BRIEGER: May I be permitted to make a brief statement. The Marshal of the Court has urged me to make a statement to the Tribunal concerning the witness Dr. Klett; I also waive the cross examination of Dr. Klett because I already have received a counteraffidavit from him. But I have to add, after I finished my interview I brought him down to the office of Mr. Einstein, after I had called his office in the course of the morning, and I was told that in all probability he would be back in his office in the afternoon. May I therefore assume, until I have been informed of the opposite, that he had an opportunity to see Mr. Einstein, and, if there were any misgivings on the part of the Prosecution as to the excuse of this witness, that Mr. Einstein had the opportunity to tell that to the witness; that all the more, as Mr. Einstein in this he made the preliminary investigations and took the first affidavit from Dr. Klett. Dr. Klett is the Lord Mayor of Stuttgart, and when he arrived yesterday morning he was very shocked about the fact that he could not be heard in court on the same day, in consideration of his responsibility -- he had very urgent business to attend to, and he was grateful to me, indeed, that I agreed to take that into consideration.
MR. LAFOLLETTE: May it please the Tribunal, the original affidavit of Dr. Klett was NG-491, introduced into exhibit 418, evidence on May 1st, as disclosed by page 2963 of the transcript. It is quite true that Mr. Einstein is associated with the Prosecution, but he is not of counsel, and, as much as I regret it -unless Dr. Klett is returned in some way, I shall again object to any counter-affidavit in this case. I am advised that Mr. Auerbach had seen Dr. Klett, and that Dr. Klett had said he couldn't stay any longer. But I don't think that these matters can be determined by the witness.
THE PRESIDENT: Can't that come up when Counsel offers his affidavit?
MR. LAFOLLETTE: I simply feel justified in notifying Dr. Brieger now that I will object to it. Perhaps he should return him; I don't want to take advantage of him, and it seems that this is the proper opportunity to address the Tribunal on the matter.
THE PRESIDENT: Certainly.
JUDGE BRAND: What exhibit was that?
MR. LAFOLLETTE: Exhibit 418, Your Honor, Document NG-491.
DR. BRIEGER: May it please the Tribunal, I have based my entire attitude on the fact that Your Honor, as presiding judge, a short time ago had stated here in Court that the Defense had the possibility, instead of calling the witness for the Prosecution for cross examination, to take from him an affidavit and submit that. That in my opinion is the meaning of the cross examination affidavit, at least that is the information I gained at the time.
MR. LAFOLLETTE: Of Course, if Your Honors please, some true -
DR. BRIEGER: Mr. Einstein has just returned to the courtroom. I should like to ask the Tribunal to ask him whether yesterday afternoon he had an opportunity to see Dr. Klett, and whether Dr. Klett told him that he was about to leave. That fact seems essential in my opinion.
MR. LAFOLLETTE: I don't know that has anything to do the matter of fact that Mr. Einstein is here. Mr. Einstein is not counsel of record. I am simply notifying the fact that this witness was brought up here and he certainly should have remained and used for cross examination. Nor do I recall any definite ruling of the court whereby counter-affidavits were to be used.
JUDGE BRAND: May I ask you a question.
MR. LAFOLLETTE: Yes.
JUDGE BRAND: Would you have any objection to the employment of a counter-affidavit, limited in its scope to the matter of the Prosecution's affidavit, in cases in which the witness was not here?
MR. LAFOLLETTE: No, I think in cases where the witness cannot be brought here and counsel must go to them, of necessity that is the best thing that is available, but where the witness has been brought here -
JUDGE BRAND: You made the distinction that where the witness was here and was available -
MR. LAFOLLETTE: Yes -- for cross examination.
JUDGE BRAND: For cross examination that then the taking of a cross examining affidavit would be improper, -
MR. LAFOLLETTE: Exactly.
JUDGE BRAND: But you do not object to the suggestion which may here come either directly or indirectly from the Court here that when the witness couldn't be produced, an affidavit might be taken?
MR. LAFOLLETTE: Exactly, your Honor. As I understood the ruling of the Court, these witnesses were to be called in. If they came, they should be subject to cross examination. If it developed that we couldn't get them in here, then Defense Counsel should have some other method of meeting them. But I am objecting to the fact where, after the Court made its ruling that these witnesses should be called, that they are called up here, not required to remain; a counter-affidavit is taken and the witness shipped back. I do not think that is consistent with what the Tribunal wanted to do and I am sure the Tribunal didn't want that to happen.
DR. BRIEGER: May I say just a few words at this point. In the case of the affidavit which I had the witness make out for me, I kept strictly to the few points of discussion which were contained clearly in the affidavit of the Prosecution. I did that because in all matters which would go beyond that, I would risk to have to make the witness my witness, and I did not see any cause to do that. Apart from that the following has to be considered. We cannot be concerned here with the problem as to whether the witness could be present yesterday because there was no Court session, but only whether the witness today is still at the disposal of the Court, and considering everything that Dr. Klett told me yesterday about his official duties, I can state frankly here that would not have been possible for him to stay here today.
He told me that it would be imperative for him to return to Stuttgart immediately, that is to say yesterday.
THE PRESIDENT: Is Dr. Klett still here?
DR. BRIEGER: To my knowledge Your Honor he isn't. He returned already yesterday to Stuttgart.
THE PRESIDENT: Well, there is nothing before this Tribunal at this time that I can see. When that affidavit is offered, we will be prepared to rule on it. He is gone as I understand it. Now, I don't see any occasion to rule on it at this time. Nothing is being offered; nothing is before the house.
EXAMINATION BY MR. WOOLEYHAN:
Q Your Honors, I have one or two questions. Mr. Markl, during your cross examination you mentioned a case involving two inmates of the Flossenbuerg concentration camp, and, as I remember, you stated that one of these inmates of the Flossenbuerg concentration camp was tried for murder, but I do not remember where you said that case was tried and when. Can you describe it?
A I did not state that; the case was tried at Weiden at the Oberpfalz, that is the district court closest to Flossenbuerg. The trial took place -- I can't remember the year very well, but Rothaug was here then, and the act was committed in November; I remember that; but whether it was 1940 or 1941 that I could not say.
Q.- Yes, now you say that Rothaug was here then. Was he a judge at the trial of that case?
A.- Rothaug was the presiding judge in that trial.
Q.- And, the defendant was an inmate of Flossenbuerg Concentration Camp; is that correct?
A.- Yes, yes.
Q.- Now, one more question, Mr Markl, of all the facts and conclusions which you made in your affidavit which is in evidence before this Court, do you now affirm those facts and conclusions again?
A.- I affirm them with the one reservation which I have stated this morning before the Court under oath.
Q.- What was that reservation, Mr. Markl?
DR. KOESSL: May it please the Tribunal, I object against that question because the cross examination of the witness, of course, dealt with a large number of differentiations and reservations, so the witness would really be compelled now to repeat the entire contents of the cross examination. Therefore, I ask to restrict that question.
THE PRESIDENT: Let us hear the reservation.
Q.- Please tell the Court, Mr. Markl, what that reservation was?
A.- The reservation -- may I answer the question as general as possible?
Q.- Yes, and briefly, please.
A.- The reservation refer to the judgement, the qualifications, the evaluation of Rothaug, which I had formed. I believe that here I have moderated the impression, which is really my conviction -- it refers primarily to the case of Durka and Strus, the two Polish women, where above and beyond the affidavit, I gave a description of all the facts as I remember them today.
Q.- That is about the Durka case?
A.- The Durka, yes. The two Polish women who were charged with sabotaging defense means.
Q.- Mr. Markl, this reservation that you just--
A.- (Interposing) I do not want to say that this is all, but I believe that from my cross examination it could be seen that I, as a conscientious witness, believed that I had to make corrections and to supplement in order to give a complete picture and a correct picture, which is the only way to give the Court the opportunity of making a just decision.
Q.- You wrote the indictment in the case of Durka and Strus, did you not?
A.- In this case, Durka, yes.
Q.- Now, Mr. Markl, tell us how long was it after the act occurred in Bayreuth for which these two defendants were charged until you wrote the indictment, how long was it?
A.- I could not state this precisely any more, when the act was committed. It is quite possible that the arrest occured at the last phrase, I believe there were three phrases, this is my recollection.
Q.- Mr. Markl, I am merely asking you how many hours or days it was agter the act was committed that you wrote the indictment?
A.- That is difficult to answer, there were only a few days certainly. It may have been the act was committed the previous day, in fact; at any rate, there was enough time.
Q.- You say it is possible that the act could have been committed the day before you wrote the indictment, is that possible?
A.- May be two days. I wrote the indictment on a Saturday morning or noon or early in the afternoon. And, in the course of the morning I was informed that this case was coming up and I should get prepared so that the trial could be carried out expeditiously. It is quite possible that is was two days before -- may be it was only one day previously that they were arrested and questioned by the police.
Q.- Now, Mr. Markl, how long was it after you wrote the indictment that these two Poles were tried by the Special Court, how long was that?
A.- It was certainly merely hours because the indictment, as I said, already was written by me or started in the morning -- at any rate, after I had the file before me, the latest in the early afternoon, it was haded to the defendants and the trial probably took place at about four o'clock -- I could not say that with certainty, but the interval was very short, just a few hours.
Q.- Did you recommend that these two Poles have defense counsel?
A.- Of course, I have requested that defense counsel be appointed. I do not know in detail today, but that is a matter of course, so there cannot be any doubt in my mind.
Q.- How long was it after you recommended that the defense counsel be appointed that the trial occurred?
A.- I believe that my request for appointment of defense counsel was filed with the affidavit of the indictment with the court because on our forms, the forms we used for indictments there is also a form which contains the motion for appointment of defense counsel, and that is probably where I put it.
Q.- Mr. Markl, are we to conclude then that the indictment that you wrote, and the defense counsel that you had appointed, all occurred a matter of a few hours on that day?
A.- Yes, during a few hours.
Q.- Now, how long did this trial last?
A.- I do not know that precisely any more, but it may have taken a good hour; at most, I think not longer than up to the moment when I caused the calling for the witness, because if I remember the case correctly, there were only the two defendants to be heard. Then, the document which was mentioned today with the confession, had to be read and put to them; for that an interpreter was present.
Q.- In any event, Mr. Markl, they finished the trial that afternoon, did they not?
A.- Yes.
Q.- And, what was the sentence that those two Poles received.
A.- The two Poles were sentenced to death.
MR. WOOLEYHAN: That is all, Your Honor.
BY JUDGE BRAND: Witness, I have a question to ask with reference to your previous testimony, which I wish to understand better than I now understand it.
Q.- In discussing the Law for the Protesction of German Blood and Honor, you referred to decisions of the Reich Supreme Court, did you not?
A.- Yes.
Q.- And, as I understood youm you said that is was not necessary to prove the act of sexual intercourse, but only acts which case close to it?
A.- Yes.
Q.- Did you refer to the necessary allegations of the indictment or did you mean to say, as I understood you, that it was not necessary at the main trial to prove sexual intercourse under these decisions of the Reich Supreme Court?
A.- If I understood the question correctly-- I wanted to explain principally in my examination this morning, that I filed the indictment against Katwenberger in spite of the fact that it was hard to prove such an intercourse, and the indictment, at first, would have to be based on actions close to it. Then, the question was put by the defense counsel why the indictment was filed at all.
Q.- I understood that. And, to this, I want to say: In the main trial under these decisions to which you referred after the indictment had been filed, was it possible to convict the defendant for acts which did not go to the extent of sexual intercourse under that law, or misconduct of a lesser nature?
A.- On the basis of that decision, that was not only one decision, if I remember correctly, several decisions because that was permanent jurisdiction of the Reich Supreme Court, such as I remember it today, and on the basis of this decision any individual could be sentenced for race pollution if there were only acts close to sexual intercourse, and they were the only ones which were approved.
JUDGE BRAND: That is what I wanted to know. Thank you.
THE PRESIDENT: The witness may be excused.
(Thereupon the witness was excused and withdrew from the courtroom).
DR. SCHUBERT: (for the defendant Oeschey): May it please the Tribunal, I wanted to take the liberty to make a suggestion. I have just spoken to Mr. Lafollette about the fact that two affiants, who have given affidavits which are in document book 3, supplement book, and whom I could only call for cross examination after these document books had Court.
No. 3 been submitted; that, the names of these witnesses have not yet been referred to the General Secretary to have them called.
They are the witnesses Dr. Baeumler, and Huemmer spelled B-a-e-u-m-l-e-r, Baeumler, and H-u-e-m-m-e-r, Huemmer Mr. LaFollette informed me that he had no objections, and, therefore, I should like to inform the General Secretary to make it possible that these witnesses can also be called so there should be no interruption in the hearing of the witnesses.