Commission 111 Court 111
DR. KOESSL: (for defendant Rothaug): I ask to be permitted to continue the cross-examinatin of the witness Kern. It is the affidavit in the document book 31, NG-563, Exhibit 232.
JUDGE BLAIR: Has this witness been sworn?
DR. KOESSL: The witness has been sworn. It is just a question of continuing and concluding the cross-examination.
JUDGE BLAIR: Give us the Exhibit number and the -
DR. KOESSL: Exhibit 232. In Document Book 31. In the German text it is on page 116. In the English Document Book on page 115.
HANS KERN - Resumed.
CROSS - EXAMINATION - Continued BY DR. KOESSL:
Q Witness, we came to the case Durka and Strus before we interrupted. Do you happen to know whether the short time limit was in the interest of Rothaug?
A If I remember correctly it was not.
Q Witness, can you remember that during the trial a document became very important, which had been thrown into a shaft, and which was important as an indiction for the fact that the two defendants had committed the crime.
A I remember that a document was cf importance during the trial, that was found in a shaft and crumpled up. But I do not remember that any conclusion could be drawn from that document about the fact that the two had committed the crime.
Q Can you remember, witness, that at any rate the older one of the two defendants who was defended by another counsel confessed the crime?
AAs far as I remember the defendant who was defended by Justizrat Kuehn denied having committed the crime.
Q Do you concede that in this case either your recollection is not quite correct, or at any rate a confession existed in the preliminary investigation.
Commission 111 Court 111
JUDGE BRAND: Dr. Koessl, just a moment. A merely technical matter. It has come to your attention that the witness, when he was heard before, was testifying as a witness before the full Tribunal- whereas now he is testifying before a Commission, and I think possibly, in the interest of regularity, the witness should be again sworn. If you will pardon the interruption in the cross-examination.
The witness will then rise and be sworn as a witness before the Commission.
DR. KOESSL: Yes.
JUDGE HARDING: Raise your right hand and repeat after me:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE HARDING: You may be seated.
JUDGE BRAND: Will you please start over again, Dr. Koessl?
DR. KOESSL: Perhaps I can shorten the procedure by asking the witness whether he will extend his oath to the answers he has given heretofore.
BY DR. KOESSL:
Q Witness, do you extent your oath to the answer which you have just given to me in three questions?
A Yes.
Q Can you remember, witness, that the two defendants, when the fire broke out, were in the close vicinity cf the place where it happened?
A Yes.
Q Now, I have another question concerning the Wendel case. You say concerning the Wendel case that the burglar was sentenced twice for the same offense. I should, like to ask you, by that manner of expressing yourself did you intend to say that the principle of double jeopardy had been viola tool in the Wendel case?
A No, that was not my intention. That seems to be an unhappy Commission 111 Court 111 wording with the prosecutor.
At any rate I did not intend to express that Wendel was sentenced twice for one and the same crime because only one was act committed. The first sentence, upon nullity plea, was revoked by the Reich Supreme Court and then the same case had to be tried again.
DR, KOESSL: I have no further questions to this witness.
JUDGE BRAND: Is there any other cross-examination of this witness upon the affidavit? --- Any redirect?
MR. KING: Just a few questions.
REDIRECT EXAMINATION BY MR. KING:
Q Dr. Kern, when you appeared before the Court on last Wednesday defense counsel for the defendant Oeschey inquired if perhaps you could not be mistaken in your statement in the affidavit concerning the Crossnik case. I refer to the statement in the English text which begins at the top of page 6 in the affidavit. This morning I want to show you a newspaper item concerning that case and then inquire of the newspaper account does not refresh your recollection as to the facts of the case. I point out to the Commission and to defense counsel that I have before a copy of the Nuernberger Beobachter for the counsel September-The name of the publication is not "Wuernberger Beebachter'-it is the "Fraenkische Tageszeitung" and the item to which I refer is to be found in the second column on page 5 for the issue of September 26, 1941. Now, Dr. Kern, I have placed that publication before and ask you -first I shall give you opportunity to read it-
Now, fer the benefit of the Commission will you read that slowly? I point out it is only very short. Will you read that slowly so that the translators may follow you in your reading:
A (Reading) "Also under indictment for a crime against paragraph 4 of the decree against the public ennemies, together with a r crime of manslaughter, was the twenty-two-year-old Pole Ludwig Kwasnik Commission 111 Case 111 cf Diesbeck near Neustadt on the Aisch, who had been employed as an agricultural worker on the farm of a widow of forty-two.
In a very regrettable manner that German woman had started something with the Pole. She had to atone her sin by death, and destroyed the happiness of her two children who are still at an age when they are going to school. With a rare form of bruatality and lack of humane feeling the Pole, who of course had been instructed when he was sent to work in the field that he would lose his life if he dared to come close to a German woman- he had tried to remove the fruit of the prohibit relations. The woman died from blood poisoning which was of course, the result cf a prehibed operation. The death sentence is to be a warning that no one out of a false feeling of sentimentality should let the Poles become to swell-headed, as this happens frequently in the country where there are not sufficient people to control them."
MR. KING: Dr. Kern, does the article which you have just read confirm the statements which you made in your affidavit and about which you were questioned on last Wednesday?
Commission III, Case III
THE PRESIDENT: The question isn't whether it confirms his opinion, but whether his recollection is refreshed so that he can now testify himself. This document is not evidence, there being no objection we permitted him to examine it to see if it refreshed his recollection. Your question should be whether his recollection has been refreshed.
MR. KING. Yes, Your Honor, I shall do that.
BY MR. KING:
Q.- Dr. Kern, having read this item, is your recollection now refreshed so that you personally can reaffirm the statements which you made in your affidavit and about which you were questioned on last Wednesday?
A.- Yes.
MR. KING: We have no further questions.
THE PRESIDENT: Mr. King.
MR. KING: Yes?
THE PRESIDENT: I have just observed that Exhibit 232 in my book seems to be incomplete. I call your attention to it merely so that I may be supplied with a proper copy of that exhibit.
MR. KING: Yes, sir.
THE PRESIDENT: The witness is excused.
You are through with this witness?
MR. KING: It has been pointed out that there may be some -- Witness, may I ask one further question?
THE PRESIDENT: Just a moment, witness.
BY MR. KING:
Q.- Witness, there is some -
THE PRESIDENT. I am sorry, Mr. King but the time has arrived to recess. The technical reasons to which I referred yesterday, which relate to the electrical recording, re Commission III, Case III quire that we stop now for our recess.
MR. KING: All right.
THE PRESIDENT: We will recess for 15 minutes.
(a recess was taken)
Commission III, Case III THE MARSHAL:
The Commission is again in session.
BY MR. KING:
Q.- Dr. Kern, it was called to my attention that I did not specifically ask you the following question:
Are you now sure, from having read the article in the newspaper, that the name of the case which we discussed this morning and about which you were questioned on last Wednesday -- are you sure that the name of that case was Kwasnik?
A.- Yes.
MR. KING: No farther questions.
THE PRESIDENT: You are through with this witness?
MR. KING: Yes, sir.
THE PRESIDENT: The witness is excused.
(Witness excused)
Call your next witness.
WILHELM HOFFMANN, a witness, took the stand and testified as follows.
JUDGE BLAIR. Hold up your right hand and repeat after me the following oath.
I swear by God, the almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath)
You may be seated.
DR. KOESSL (Counsel for the defendant Rothaug); The witness Hoffmann is to be examined in regard to an affidavit in supplementary volume IIII-A, Document NG-647, Exhibit 476, page 51 in the German Document Book.
EXAMINATION BY DR. KOESSL.Q.- Witness, please state your full name and your profession.
Commission III, Case III A.- Hoffmann, Wilhelm, Chief Public Prosecutor, retired in Hof.
Q.- Witness, during the entire time when Rothaug was presiding judge of the Special Court in Nurnberg, you worked with the prosecution in Nurnberg?
A.- Yes.
Q.- Did you deal with many cases at the Special Court under Rothaug?
A.- I never was the representative of the prosecution at the Special Court in Nurnberg, only during the time when the position of Senior Public Prosecutor in Nurnberg was not occupied, or when the Senior Public Prosecutor who occupied that position was ill or was absent for other reasons. I, as the oldest ranking prosecutor, substituted for the Senior Public Prosecutor? In that capacity I was also in charge of Division I of the Nuernberg Prosecution where the cases were handled which were indicted at the Special Court.
Q.- Witness, can you still remember the times well when you substituted for the Senior Public Prosecutor for some length of time?
A.- The position of Senior Public Prosecutor in Nuernberg, until the 1st of July, 1941, was not occupied by anybody. I, myself, as the oldest ranking prosecutor, after returning from my service with the Wehrmacht -- as far as I know, that was on the 18th of December, 1939 -- took over the position of Senior Public Prosecutor. That is to say, as deputy I guided the public prosecution in Nuernberg from the 18th of December 1939 until the 1st of July 1941.
In the fall of 1941, the then Senior Public Prosecutor Schroeder fell ill , he got pneumonia. During that time, I again took over as deputy of the Senior Public Prosecutor.
Commission III, Case III I cannot remember the exact date any more; however, it may have been for about eight weeks.
After that time I only substituted for the Senior Public Prosecutor when he was on vacation or was absent from Nurnberg on official duties.
Q,- Witness, in more serious cases, or in general, did you report to the General public Prosecutor or the Ministry of Justice at a time when the indictment had not been filed with the Special Court as yet?
A.- Reports about more serious cases, before the indictment was filed, had -- according to official regulations, not only in regard to Special Court cases, but also in all other penal cases -- to be reported to the superior authority, that is, the General Public Prosecutor in Nurnberg, and by him to the Reich Ministry of Justice.
Q.- Witness, can you confirm that Rothaug also appointed as defense counsel, men who were not members of the Party and were otherwise also not considered to be National Socialists?
A.- I cannot make any statement about that, namely, as to which lawyers did not belong to the Party.
Q.- Do you remember -- excuse me.
A.- In the court house one did, to be sure, discuss the fact that some of the lawyers were probably opposed to the Party. I remember that this was said about the following lawyers. Grohe, Korn; Rupp; I believe Meyer also. Whether these gentlemen were appointed as defense counsel at the Special Court In Nurnberg, or whether they were counsel who were selected by the defendants I cannot recall any more. In the appointment of defense counsel I noticed only that quite frequently lawyers were appointed as defense counsel by the court who were considered nonentities Commission III, Case III by circles of lawyers.
For example, in the Lopata case and in the Kleinlein case, in both of those causes, as far as I remember, Counsel Zimmermann -- it may have been also Justizrat Kuehn -- was appointed as defense counsel by the court.
Commission 3 I also remember another case, but I can no longer state the same of the defendant in that case.
However, it was some case of robbery in which a juvenile was a co-defendant-
THE PRESIDENT: I think that the witness is extending his remarks far beyond the question. Will you please limit yourself to answering the questions which you are asked. You may proceed, doctor.
BY DR. KOESSL:
Q. I believe that the question has been answered rather extensively, witness. Did you or other prosecutors submit written complaints against the treatment Rothaug dealt out?
A. I frequently called on and told my superior authority, General Public Prosecutor Bens, that the manner in which the prosecutors of the Special Court were treated by Rothaug would present a danger for the independence of the prosecution.
Q. Witness, I believe that the presiding judge has just pointed out to you that you are to limit your answer to the question. I ask you to answer the question with "Yes" or "No".
A. I shall answer the question now. I did not make a written complaint.
Q. In your affidavit you mention that Rothaug applied his good legal knowledge in the wrong way.
A. Yes.
Q. Do you refer to a defeating of the law?
A. I believe that this question exceeds the sphere of testimony of a witness.
Q. Witness, in the affidavit you yourself stated an opinion, namely, in the words that Rothaug applied his legal knowledge in the wrong way. That is an opinion. Only for that reason I asked you how you arrived at that opinion and what you mean to say by it - whether it was a defeating of the law.
A. That matter is as follows; Every judge within the framework of the penal law has different possibilities. In one case he can consider Commission 3 mitigating circumstances; in another case he cannot.
He can advance reasons for extenuating circumstances as applicable in the case or he can refrain from doing so. In the case of Rothaug I noticed that the extenuating circumstances were always considered by him to be secondary, and he paid more attention to the reasons which aggravated the penalty. In other words, he applied his legal knowledge to that extent to the disadvantage of the defendant.
Q. Did you draw any consequences from that fact, witness?
A. We have--
Q. I only want to ask you in regard to legal remedies.
A. Sentences of the Special Court acquired legal force at the moment they were pronounced. There was no legal remedy against them.
Q. Witness, I want to call to your attention expressly that I did not ask you about legal remedies (Rechtsmittel) but legal aids (Rechtsbehelfe).
A. Well, I would have come to those legal aids. Only the reopening of a case would have been possible as a legal aid (Rechtsbehelf). However, at the time when I substituted for the senior public prosecutor it was as follows: In the Penal Chamber which had to decide about the reopening of a case the same judges sat as those who were members of the Special Court. Rothaug too was for sometime presiding judge of this Fourth Penal Chamber. To submit a legal aid would, in view of the members of that chamber, have been absolutely impossible, for Rothaug did not change his sentences. The prosecution only had the possibility to try to change the sentence by means of a clemency request, and that means was frequently chosen by the prosecution.
Q. Witness, now I only want to ask you, after the reopening was refused, why did you not use the legal remedy of complaint to the Senate of the District Court of Appeals?
A. In no case did we make an application for reopening of a case.
Q. Then the statements which you have just made so extensively are only your own assumptions?
Commission 3
A. That is not an assumption, that is a fact.
Q. I now want to ask you about the Platzer case. Is it correct, witness, that Platzer had done away with about 100 kilometers of material and that thereby he had withdrawn it from the rationed material.
MR. WOOLEYHAN: May it please the Commission. One moment, witness, please, The way I got that through the earphone, Your Honors, it was kilometers of something. Now kilometer is a measure of distance. How can you have a kilometer of material?
DR. KOESSL: I could also say one hundred thousand meters of material.
THE WITNESS: As far as the Platzer case is concerned, I know it because Platzer is from my home town.
BY DR. KOESSL:
Q. Witness, you don't have to go to such lengths. You can answer the question quite briefly.
A. Materials are not measured in kilometers.
Q. In the meantime I measured it in meters. Please answer my question.
A. Materials at that time were measured by points.
I only remember that after the Special Court returned from Weiden it was discussed that the large amount of material that was found with Platzer, if it had been spread out, would have stretched over quite a distance.
Q. Is it correct, witness, that this was the biggest case of a violation of war economy of all the cases which had happened up to that time?
A. I have to answer that question with "yes".
Q. Thank you.
DR. KOESSL: I have no further questions to address to the witness.
THE PRESIDENT: If there is to be no further cross-examination, is there any redirect?
MR. WOOLEYHAN: No, Your Honor.
Commission 3
THE PRESIDENT: The witness is excused, Please call the next witness.
(LUDWIG SCHIRMER, a witness, took the stand and testified as follows.)
JUDGE HARDING: Will you hold up your right hand end repeat after me the following oath:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE HARDING: You may be seated.
COMMISSION III CASE III EXAMINATION BY BR.
LINK: (Attorney for Defendant Engert)
Q The affidavit of the witness in regard to which I want to ask a few questions is in Document Book IV-C; Page 12 in the German; it is document NG-553, Exhibit 272. Witness, please state to the Court your first name and last name.
A Ludwig Schirmer.
Q And your age?
A Twenty-eight years.
Q Your profession?
A Director of the Penal Institution Ebrach; I am a jurist.
Q On the 8th January, 1946 you gave an affidavit; you probably still remember that?
A Yes, I do.
Q Would you please state for how long you have been working in the Penal Institution Ebrach?
A Since the 1st of August 1945.
Q That is after the collapse.
A Yes.
Q Then, I would like to draw your attention to the last sentence of your affidavit; I quote: "These statements are based on local knowledge of the penitentiary in Ebrach, and on my experiences which I have made after the change-over and during the events of the war."
MR. WOOLEYHAN: Excuse me, I believe that came over the earphones as "local knowledge." The affidavits reads, "personal knowledge."
BY DR. LINK:
Q May I explain this last sentence in your affidavit in connection with the fact that you worked in Ebrach only after the end of the war to the effect that since you were living in Ebrach you had COMMISSION III CASE III access to information about general matters in the prison without you yourself having made any actual discoveries or would you like to put it?
A I live in Ebrach, and I was born there. My father is an official in the prison of Ebrach, and he is still on duty today. During the war, too, he was in office. The events in the Ebrach Prison were locally known, and, that is how I derived my knowledge.
Q Yes. In your affidavit you are dealing with the facts that treatment, food and especially medical care was supposed to have been very bad toward the end of the war. This part of your affidavit, does it have anything to do with the Reich Ministry of Justice, and, in particular, with the defendant Engert?
A I don't know that.
Q Do you know that these questions had first of all to be dealt with by the director of the prison?
A I know that.
Q Do you know who had the supervision over the Ebrach Prison?
A That was the General Public Prosecutor in Bamberg.
Q Have these events been examined since the end of the war, has a trial been heed of and those responsible for the conditions?
A. The man who was director of the Ebrach Prison, until the end of the war, was imprisoned for one year because of the conditions and then he was released; he was imprisoned in Nuestadt an der Aisch, I assume that that took care of the matter. Further more, a few officials were imprisoned; they were charged with having treated prisoners. At present none of the officials is in prison any longer.
Q I only wanted to know whether you knew the results of these investigations, and that for certain reasons the director of the prison was not reproached by the investigating authorities in the last analysis.
A It is known to me because all of the gentlemen are at large .
COMMISSION III CASE III
Q Witness, you mentioned that largely due to the great number of NN prisoners, Nacht and Nebel prisoners, the institution was overcrowded. Can you state when these NN prisoners came into the institution?
AAccording to the things I found out from the NN records, most of the NN prisoners came to Ebrach in the year 1944.
Q Were they there until the end of the war?
AAt the end of March, 1945, and the beginning of April, 1945, two large transports still arrived -- one with about five hundred prisoners; they came to the Straubing penitentiary; and at the end of April about three hundred prisoners to the Amberg penitentiary; whether they were NN prisoners or other prisoners, I don't know, but I assume that they were NN prisoners.
Q Amberg and Straubing were also penal institutions of the Administration of Justice?
A Yes, they were the same kind of penitentiary as Ebrach.
Q Do you have any reason on the basis of which you can say, that from Ebrach penitentiary NN prisoners were given over to the police?
A I cannot recall any case.
Q Witness, in your affidavit you also mentioned that from time to time a certain number of prisoners were transferred to concentration camps. Do you know the circular decree of the 22nd October 1943 which is the first basis for this action?
A I know this from the prison regulations - basic prison regulations because under the paragraph, release from the secret decree of 1943 was quoted. I don't know the regulation itself.
Q Can you state according to what point of view at that time, that is before you were employed in the prison, this action was carried out?
COMMISSION III CASE III
A I don't know that, but from the basic regulations of the prison, that is, regulations concerning transfer of prisoners, those were prisoners who had been in prison for a longer period; however, I cannot state any exact figures -- what length of time was decisive.
Q From the prison records, could you make any more exact determinations which would enable you to state relative figure's regarding first the number of the penitentiary inmates who served terms of more than eight years, security detained prisoners; and, secondly, as to the number of those who were handed over?
A I cannot do so because I handed the prison records over to Numbers. I only got one of them back, one must still be here.
Q If in your affidavit you mentioned that the director of the institution supposedly made the behavior reports, and then add a remark that they were supposed to be a justification for designating the person concerned as an asocial, that these reports were so to say made for subsequent justification of the action of the director, do you base this on any facts that you found out, or upon an assumption which other gentlemen expressed to you?
A These are not facts I found out myself, but they are remarks of a colleague of mine, who also was director of a prison during the war.
Q Could you state the name of this colleague?
A Eugen Rommel.
Q He is at Ebrach?
A Yes, in Ebrach.
Q Was he prison director at the time when this circular decree was dealt with?
A Herr Rommel was, as far as I know, director of the prison from 1940 to 1943.
COMMISSION III - CASE III
Q. So, you do not know whether the information he gave you was from his own observations or whether they also were based on reports?
A. I do not know.
THE PRESIDENT: Dr. Link, would you be so kind as to repeat for me the date which you specified as being the date of the decree concerning the transfer to concentration camps, I did not got that date.
DR. LINK: The decree dates from the 22nd of October 1943.
DR. SCHILF: (for the defendant Klemm): I only have a few supplementary questions to address to the witness.
Q. Witness, you just mentioned that the man who was director of the prison, was imprisoned for one year because of the conditions before the collapse; you have not yet mentioned the name. Was that the Eugen Rommel, you mentioned?
A. No.
Q. May I ask you to tell us the name?
A. Regierungsrat Hennemann, Government Councillor.
Q. Government Councillor Hennemann is now in Ebrach?
A. Yes, in Ebrach.
Q. Thank you. You further told us that there was a case of ill treatment which was investigated. Did that case of ill treatment concern Hennemann?
A. No.
Q. May I ask you to toll the Court the name of the man, the name of the official?
A. The name of the official is Chief Warden Franz Mueller.
Q. Do you know when this case of ill treatment was supposed to have occurred?
COMMISSION III-CASE III
A. That was not a single case, but a number a cases.
Q. At what time?
A. At the end of the war.
Q. And, this Franz Mueller was also in detention under investigation, and if I understood you correctly he toe was released again by the American investigating authorities?
A. Mueller marched together with the Czechs to Amberg as a supervising authority. He was imprisoned in 1945 by the Czechs in Amberg. In October 1945 I came to Dachau from Amberg,and in 47, in March, he returned as a free man from Dachau to Erbach with a certificate, that he was never to be imprisoned again.
Q. A certificate apparently of the American investigating staff in Dachau?
A. The events of his detention in Amberg were recorded, and are supposedly the subject of a further investigation against the director of Amberg after the war.
Q. I do not quite understand that; I would like to ask you, the certificate which you mentioned, which Herr Mueller brought along with him to Ebrach; this certificate was given to him by an American investigating authority in Dachau?
A. Yes.
Q. Then you say, that an investigation is pending against the director of the penitentiary in Amberg who was the director after the collapse?
A. Yes.
Q. Thus, the ill treatment happened after the collapse?