Commission 111 Case 111
Q Those were the name associate judges who was presiding?
A Oeschey, the chief district Court.
Q There was nobody else there?
A The representatives of the prosecution--senior public prosecutor Dr. Schroeder.
Q Then, you mentioned the case of Studienrat Popp.
A Yes. I remember that later his name was not Popp, but it is spelled R-U-P-P. I have a friend by the name of Popp, and I mixed that up.
Court No. 3, Commission III.
A. I remember that letter is not important, but he spells his name Rupp, R-u-p-p, and I have a friend by the name of Popp and because those names are very short I mixed that up.
Q. Were you present at that trial against Rupp?
A. Maybe for a few minutes, I am not sure about. I am no more sure about it, but I remember the contents of the file.
Q. You mentioned a slap to a soldier, witness?
A. Yes, it may have been the other way, too.
Q. What do you mean by that?
A. Well, that the slap was not received the soldier but by Rupp, but any rate, there was something about a slap.
Q. It may have been that the soldier slapped Rupp?
A. That may have well been. I do not know that for sure. All I know is that Rupp was the gentleman at Fuerth in a secondary school, and because that gentleman had nothing to do at that time, they were used for other services, and he was with this housing office in Fuerth.
Q. Witness, one moment. You do not know for sure any more whether Rupp slapped the soldier or the soldier slapped Rupp?
A. No, not for sure, I could not say.
Q. But you said in your affidavit, you assert in your affidavit that the slap meant death for Rupp?
A. Yes.
Q. Well, but if the soldier slapped Rupp, that could not have been the cause of the death sentence could it?
A. Well, there were other things that played into this.
Q. What for instance?
A. The statements which Rupp made or may have made to the soldier, and the whole conversation which led to the slap. Who was the recipient of it, I could no longer tell whether it was Rupp or the soldier.
Q. Then, you could not maintain that statement, that the slap meant death for Rupp?
A. Well, the slap alone, no, but his entire attitude.
Q. Can you still remember whether Rupp tried to keep a soldier Court No. 3, Commission III from conducting his military duties?
A. Well, the way I remember it, Rupp said he would much rather be in a coffee house or an inn drinking some wine and smoking a cigar than do what I am doing now, because he was supposed to assign an apartment to somebody.
Q. Do you mean for reasons of that statement somebody was sentenced to death at that time?
A. Oh, yes, that was quite sufficient.
Q. Well, I believe we do not have to discuss that case any longer. You mentioned another case of Valentine Witrak, apparently caused by illicit food trading; is that correct?
A. If I have said so, I am quite sure it must have been like that. I do not remember the details any more, but what I have said I can maintain, if that is the way I said it, it must have been like that.
Q. Excuse me, witness, what you said at that time in your affidavit you could only have stated from memory, and maybe you still have that memory today?
A. Yes, I do have it.
Q. Therefore, in my question, you cannot refer me to your affidavit but I should like to hear from your memory what you know about it?
A. Yes, I see, now, as always, my memory, I did not add anything and I did not withhold anything, because I realize the meaning of an oath.
Q. Were you present at the trial of Valentine Witrack?
A. I do not think so.
Q. Therefore, you know this case only from the files?
A. Yes.
Q. Do you still remember anything about the extent of the case?
A. Well, as far as I can remember it, there was trading of food ration coupons.
Q. Was there a large amount of goods?
A. That, I no longer remember. I do not think it was to the Court No. 3, Commission III.
extent as the black market we have today.
Q. Witness, then further you state literally and I quote: "It goes without saying, that even by this means, Oeschey did not stop the enemy as quoted in the law concerning the establishment of civilian court martial."
A. Yes.
Q. Do you happen to know the law about the introduction of civilian court martial?
A. No, for us, that came so surprising.
Q. Was that law shown to you when you were interrogated?
A. No, the law, it was not.
Q. How can you state then in your affidavit that Oeschey did not stop the -- "could not stop the enemy by that sentence, as it was stated in the law concerning the establishment of civilian court martial?"
A. Well, that was my conviction. We could not stop the enemy when the Wolkssturm was put into action, and when we had to push street cars out of their tracks in order to hold up the enemy, that was nonsense.
Q. Witness, I did not ask you whether that was nonsense or no nonsense, I asked you how you came to make a statement that anything like that was mentioned in the law concerning the Standgericht, the civilian court martial?
A. I do not quite understand that question.
Q. Have you not told me before, that everything you stated here, under oath, was made and taken upon your oath?
A. Yes, yes, indeed.
Q. Now, here you said something which opposed the contents of the law, concerning the establishment of the court martial, also which is not correct, as I am telling you now -- how did you come to make that statement in the first place?
A. That I cannot follow you here.
Q. The words which I have just quoted to you, did you invent those or were they written down for you?
Court No. 3, Commission III.
A. They were not written down for me.
Q. You wrote them yourself?
A. No, I did not write anything myself. I agreed with that; when that was written down, it was my conviction such as it was. I was convinced it was the truth.
Q. You, yourself, therefore, did not write anything?
A. No.
Q. You just signed what was written down?
A. Yes, I said it, but I personally did not write it down, and it was read to me, and I have read it, myself. I signed it because I told myself that you can take upon your oath.
Q. Witness, do you remember that there was a large number of new cases pending before the Standgericht?
A. I am not informed about that.
Q. Excuse me, you were the office manager of the Prosecution's office, were you not?
A. No, no, I was in charge of the office of the Prosecution in Nurnberg.
Q. Yes, the Prosecution's office in Nurnberg.
A. The Prosecution, itself, as far as I was concerned had nothing to do with the Standgericht.
Q. But, in the Prosecution's office, the charges were received there?
A. But, that did not go through my hands, that went directly to the Senior Prosecutor.
Q. But, witness, if you handled incoming mail, matters at that office had to go through your hands?
A. No, that is not correct, that came directly to the Senior prosecutor. I did not even see it.
Q. You mean to say, then, that as the man in charge of the office, the office of the Prosecution, you never saw any of those charges that were filed, that they came directly to the senior Prosecutor?
A. Yes, maybe a day or two later I may have seen them, but when they were received, I did not see them.
Q. In other words, you did see them eventually?
A. Yes, at times, but not always; cases in which I had something to do with the execution, I saw the files, but otherwise, I did not have the least to do with them.
Q. Now I am coming to the last sentence of your affidavit, and I should like to read that sentence to you also, you said literally: "Oeschey has rendered blood sentences at the request of the Gau executive office." Witness, do you know what connection and whether there was a connection at all between the Gauleitung and the Standgericht, the Gau executive office and the civilian court martial?
A. Well, in -
Q. Do you know anything about it?
A. From my professional functions, I do not know anything. I only know what was generally discussed, that everything had to go there, to the Gau executive office, to the Gauleitung before it came into effect.
Q. What do you mean by that witness; do you mean that the execution of any sentence of the Stangericht had to be approved by the Gauleitung?
A. Yes, indeed, I am convinced of that.
Q. And, then you also said that Oeschey had rendered blood sentences at the request of the Gau executive office?
A. Yes.
DR. SCHUBERT: That ends my cross examination.
DR. SCHILF: May it please the Commission, I do not have any intention to cross examine this witness Huemer, but I have to make a statement concerning the previous witness, Prey. The witness Prey after he left the court room was shown the famous basic decree about the transfer of prisoners to the Gestapo by Dr. Link. He was shown that by Dr. Link. The witness Prey told me just now that he had to correct the statement which he made a half hour ago. In fact he made a mistake Court No. 3, Commission III of one year in this case.
Therefore, the date was supposed to be shifted back one year. Therefore, I ask to be permitted by the high Commission to call the witness Prey again into the witness box so that the high Commission may hear this correction from him and I may add that also the witness himself would like to do so; therefore after this witness here is finished I ask the witness Prey to be called again.
THE PRESIDENT: You may recall him for the purpose of making a correction, if any, as to dates, and for no other purpose.
Are you through with the witness.
MR. KING: Just one question.
EXAMINATION BY MR. KING:
Q. Witness, do you know what position Haberkern held in the Franconia Gau during the time when the Standgericht was functioning?
Court No. III, Commission III.
A When the Standgericht he was in function, he was district inspector of the Party, and while at the Standgericht he was associate judge of the Standgericht together with a Major of the Armed Forces. And Oeschey, the three of them, constituted the court and made decisions about life or death of a defendant.
MR. KING: That is all, your Honor.
JUDGE BRAND: You are excused, Mr. Witness.
WITNESS: May I stay in the courtroom as a listener?
JUDGE BRAND: That depends upon the usual compliance with the rules which entitle people to enter into the visitors gallery. The Court will not take any part in that matter.
WITNESS: Yes, sir.
(The witness was excused.)
JOSEF PREY, a witness, resumed the stand and testified further as follows:
BY JUDGE BRAND:
Q Mr. Witness, we are informed that you wish to make a correction concerning the matter of some dates. Is that correct?
A Yes.
Q You may proceed to make it. Make it briefly.
A Through a defense counsel I found out that the secret decree was not of the year 1943 but of the year 1942, and that consequently the transfers into the concentration camps took place not in June 1944, for instance, but in June 1943, and so on. These dates have to be corrected accordingly.
BY DR. SCHILF:
Q Just one supplementary question. You told us before that the action was completed in 1943, and that only a few cases were pending the beginning of 1944, so that also as far as the end of the action is concerned, it would have to be shifted one year ahead - that is, 1943 to 1944.
A Yes.
Court No. III, Commission III.
JUDGE BRAND: You say the end of the action would have been in 1944?
A 1944 - the beginning of 1944.
JUDGE BRAND: Thank you. You are excused.
(The witness was excused.)
ROEDER, 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.)
JUDGE BLAIR: You may be seated.
JUDGE BRAND: Who is the cross-examiner?
DR. SCHILF: May it please the Commission - I beg your pardon, I was not informed that the witness Roeder would be brought now and therefore I do not have my Document Book at hand. I will have to apologize and to ask for the Document to be brought here. Since a midafternoon recess is expected shortly, may I begin to examine after the recess?
MR. KING: May it please the Commission, if it would be any help to Dr. Schilf we have a photostatic copy of the original affidavit here and he is privileged to use that if he wishes.
JUDGE BRAND: If you desire to wait until after the recess you may do so; otherwise you may proceed now. Suit yourself.
DR. SCHILF: I should prefer to be permitted to begin after the recess on account of some notes which I have also on my copy.
JUDGE BRAND: We will recess at this time for approximately ten minutes.
(A recess was taken.)
COMMISSION III CASE III
THE MARSHAL: The Commission is again in session.
DR. SCHILF: (Counsel for the defendants Klemm and Mettgenberg):
May it please the Commission, first of all I have to clarify a technical lack. Exhibit No. 46, NG-711, the affidavit of the witness Dr. Roeder, in document book 1-B, at the end of the German version, has an omission. I don't know whether this omission appears in the English version as well. Mr. King was kind enough to put at my disposal a photostatic copy of the affidavit, and I would like to suggest that this photostat be shown to the witness so that he can read those sentences aloud which are not contained in the German document book. It is only a question of a few sentences.
MR. KING: To be sure, we have no objection to showing the photostatic copy of the original to the witness. In fact, it is probably the most expeditious way of clearing up the omission in the German document books. It appears from the English text that the German was read by the translator and that the English version is complete. I might say in explanation that the omissions appear because the witness made corrections in handwriting of the typewritten original affidavit, and the translators, or rather, the typists of the German text, apparently did not take the time to read the handwriting of the witness in making the German copy.
DR. SCHILF: I shall now show the witness the photostatic copy.
(Document submitted to witness.)
EXAMINATION BY DR. SCHILF:
Q May I ask you to read starting at this point (indicating), including the handwritten notations?
A Yes. "The decree was...."
Q Witness, you have to read more slowly, and please speak into the microphone.
COMMISSION III CASE III A "The decree was a declaration of mistrust against the objectivity of military jurisdiction."
Excuse me but I am unable to read this since, during seven months of imprisonment in the prison here, I have not yet received eyeglasses that fit my eyes. I can't read this; the corrections that I made are written in too small letters.
COMMISSION III CASE III
Q Witness, May I ask you, is it your handwriting? Can you recognize it as such?
A Yes, it is my handwriting. I can also remember the changes I made. This copy was not made by me, this statement. It was a summary of an interrogation, and it was submitted to me for signature with the request to sign it. That was at noon, and it was supposed to be signed relatively quickly. I read it over and noticed that partly a severity had entered it which changed the meaning somewhat. My interrogation was concerned with the question, first, whether at the outbreak of the war had preparations been made for the establishment of special courts. I expressed my opinion as follows:
Q Excuse me, witness, first of all, we shall limit ourselves to this technical difficulty. You shall have opportunity later on to make all the corrections in any other affidavit which you consider necessary. I shall now do the following: I shall try to decipher your handwriting and first of all to take care of the formalities.
I ask you to excuse me that I have caused a complete darkness in this room.
THE PRESIDENT: We have many times experienced darkness which has been caused by counsel, either for the prosecution or defense, so we will excuse you.
DR. SCHILF: May it please the Court, I am unfortunately not able to read the changed text, since on the photostatic copy I cannot decipher the handwriting, either, especially since several words were left in typewriting and I cannot tell when the handwritten changes begin and when they stop. Therefore we have to waive at the moment the clarification of this matter. There is till another possibility. If the Court grants me the permission, during a recess of three minutes, to go to the window together with the witness and there with the aid of better lighting to try to decipher the handwriting.
MR. KING: I wonder perhaps if Dr. Schilf's suggestion is not a COMMISSION III CASE III good one, and in the meantime we could possibly proceed with the witness Kassing, who, I understand, awaits outside.
I understand also that the examination of Kassing will not take very long. Perhaps on the conclusion of that, Dr. Schilf will have come to some agreement as to this text, and this witness may be recalled.
THE PRESIDENT: Who will be cross examining Dr. Kassing?
MR. KING: Dr. Koessl.
THE PRESIDENT: Is that agreeable to you, Dr. Schilf?
DR. SCHILF: Yes, Your Honor, that is all right with me.
THE PRESIDENT: The witness may step down and confer with counsel.
BERNHARD KASSING, a witness, took the stand and testified as follows:
JUDGE HARDING: Hold up your right hand and repeat after me:
I swear by God, the Almighty and Onmiscient, that I will speak the pure truth and withhold and add nothing.
(The witness repeated the oath.)
DR. KOESSL: I ask for permission to start the cross examination of the witness Kassing. We are concerned with the document NG 663, Exhibit 477 in the supplementary volume 3-A on page 67 of the German.
EXAMINATION BY DR. KOESSL:
Q Witness, please state to the Court your first and last name?
A Bernhard Kassing, Justizobersekretaer, justice senior secretary, at present retired, Nurnberg, Dennisstrasse 37.
Q Witness, in the case of the two Poles Durka and Strus, were you present?
A No, I was not.
Q Did you know the actual age of the two women?
A They were two young girls. I thought that they were about 17 or 18 years old.
COMMISSION III CASE III
Q But you do not know the actual age?
A I did not know the actual age, but lawyer Kern later told me about it. He told me that they were about 17 or 18 years old.
Q Did Dr. Kern also tell you the age of the other Polish woman who was represented by another counsel?
A He did not tell me that, as far as I remember, but I guessed that the other girls was not much older, either, in my own estimation.
Q Do you know what crime they were charged with?
A. Yes, I know it.
Q Witness, please a little more slowly. And please, witness pause a little bit after the question. What crime were they charged with?
AAllegedly it was arson. It happened in a factory, in a weaving factory.
Q Did you read the case file?
A No, I did not.
Q Did you read the later sentence and the opinion? Did you hear the sentence pronounced?
A No, I was not present in the courtroom when the sentence was pronounced.
Q Did you later on read the sentence and the opinion?
A No, I did not do that, either.
Q On what is your shock about the trial based?
A Because the two girls were rather young still, and because they were sentenced to death for arson.
Q Since you neither heard the sentence orally nor read the written opinion, I would like to read to you one sentence from your affidavit. You say "the sentence was in the based on racial and not legal points of view." Did you yourself formulate this sentence that is contained and put it into your affidavit?
A I discussed the matter with Mr. Einstein and then the sentence was written down.
COMMISSION III CASE III
Q But you did not have a basis or document for this opinion about this judgement?
A No, I didn't have it, no.
Q Witness, can you remember any case whatsoever in which Rothaug caused any official any damage for political reasons?
A I do not remember any such case.
Q And now a final question. To what did you attribute the easy excitement of Rothaug?
A I knew that Rothaug was suffering from stomach disorders. It was possible that that was the cause for it, but I do not know if for certain.
DR. KOESSL: Thank you. I have no further questions.
THE PRESIDENT: Is there any further cross examination? Is there any redirect?
EXAMINATION BY MR. KING:
Q Witness, in discussion the case of the two Polish girls with lawyer Kern, was your opinion in any was shaped by your conversations with lawyer Kern?
A I was active in the office and Kern frequently visited me in the office. On that occasion we repeatedly discussed that case because I knew lawyer Kern particularly well.
Q. So that when you made the statement in your affidavit as to the probable outcome of the sentence based on the fact that these two young girls were Poles, that statement was made both on your own observation and on your conversation with lawyer Kern?
A. That is correct.
Q. I have no further questions.
DR. KOESSL: I believe this last question is not admissible in the form in which it was put. The prosecutor put a statement into the mouth of the witness which he didn't make. If I heard it correctly, Mr. King asked your opinion about the sentence which was based on your own observation. That is just the very thing which the witness denied without any doubt and quite exclusively.
MR. KING: No. Dr. Koessl misunderstood the question. The question was, 'is the statement which you made in your affidavit based both on your observation and your conversation with Dr. Kearn.'
THE PRESIDENT: We understand the situation. The witness is excused.
MANFRED ROEDER-Recalled CROSS EXAMINATION-CONTINUED BY DR. SCHILF:
Q. May it pleast the Commission, may I repeat briefly: Exhibit 46, NG-711, Document Book 1-B, Page 100 in the English Document Book. Witness, first I would like to ask you to state your name.
A. Roeder. My first name is Manfred.
Q. And please state briefly what professional functions you exercised until you were imprisoned?
A. Until 1935, I was in the civilian administration of justice; after, I had left the administration of justice in the interim and had worked in industry.
Then in 1935, as supervising military justice, I went to Koenigsberg. In 1937, I was transferred to Brunswick in the same position. In 1938, I became supervisory judge advocate of the Air Courts Martial in Berlin. In 1941, I was promoted to Judge advocate Colonel. In 1944, I became chief supervisory judge in Air Force Unit 4 which was at the southern front. I was general judge advocate of the Air Force until the end of the war.
Q. Now, may it please the Commission, I would like to correct the technical difficulty of the German Document Book I-b. The next to the last paragraph of the affidavit reads, according to the formulation which the witness and I have agreed upon as follows:
"The decree was a declaration of mistrust against the objectivity of military jurisdiction. It complied with a directive of the Fuehrer and found resonance in the Ministry of Justice, which criticized the milder treatment of political cases."
A. I believe there is still a small mistake. The "which criticized" is supposed to refer to the decree and not to the Ministry of justice.
Q. This is a factual correction?
A. Yes, it is a factual correction.
Q. We are now coming to the contents of your affidavit, and I would like to ask you one thing. In connection with your official activity as general judge advocate, were you in your main activity or on the side a member of the Reich Courts Martial?
A. No, I was not a member of the Reich Courts Martial, Reichs-kriegsgericht, but for two individual cases.
Q. Please speak more slowly, witness.
A. I was merely appointed to the Reich War Prosecution of the Courts Martial, in addition to my position as supervisory judge at the Air Forces 3. I remained in my official position with the Air Forces while I was detailed to the Reich Courts Martial. If one was detailed to the Reichs Courts Martial, one was under the OKW. In my case, this was not so.
Q. You mentioned two cases in which you were detailed to the prosecution of the Reichs Courts Martial?
A. Yes.
Q. As such, did you carry on investigations in two cases of did you appear as prosecutor before the Reich Courts Martial?
A. In one case of the Red Chapel, Rote Kapelle, I represented the Reich Prosecution of the Courts Martial Prosecution, and in about four or five cases I also held factual investigations in addition; whereas in the second case, I, myself, was the chief in charge of the investigations. The second case was known under the code name "Depositenkasse," Depositor's Insurance." It was a matter of large scale smuggling of meney between Switzerland, Checkoslovakia, Hungary and other countries of the south to Germany which had been carried out by members of the counter intelligence office for foreign countries, which then later took a leading part in the 20 of July conspiracy.
Q. One final question in regard to your penal activity. The trial which was known under the code name "Rote Kapelle" was probably concerned with the defendant Harnack among others?
A. Yes, exclusively treason. In the journal "Die Gegenwart" recently an article by Professor Harnack was published. His cousin Harnack sometime ago, wanted to attribute purely political motives to his cousin Harnack who was condemned to death.
The investigation of the Reich Courts Martial and the sentence, the opinion on the basis of the confession of Harnack, had shown without any doubt that under the guidance of a Russian general staff officer, during the war, provided with Russian money and Russian shortwave transmission he thus sent reports to Russia. This is the basis of his sentence and the sentence which was meted out to his wife who in addition had caused a German 1st Lieutenant to reveal official secrets which also were reported to Russia by means of shortwave transmission.
Q. In conclusion, when did this trial take place?
A. This trial took place at the time, that is the middle of December until the middle of February 1942-43.
Q. Thank you very much. I am now coming to the factual questions. You mentioned a case of Ministerialrat Schwarz of the Reich Air Ministry, and there you reported the experiences that you made at the time. On Page 2 of your affidavit, you state:
"We received no support from the Ministry of Justice. In many cases, if it had merely tried to exercise the necessary influence, the Ministry would have been able to free many people from Gestapo custody."
Dr. Roeder, you will admit that that is quite a summary statement and that there are no facts which you quote in support of your conclusion, and it makes it impossible for a man who did not have your experiences to draw the same conclusion. Therefore, I ask you how you reached that conclusion.
COMMISSION III CASE III
A I would like to say the following: This not a record which I dictated, but during two days I was, as I said, generally interrogated; then after that, on the basis of the interrogations, the interrogator made up this affidavit. I corrected, in part, mistakes which distorted the meaning; I pointed them out, especially I pointed out that I could not give any testimony, make any statement about the civilian administration of justice since practically I had left it in 1935 for practical purposes. Thereupon I was asked to make a brief statement how the military administration of justice felt about it and what I had experienced in the course of my activity. This sentence, in particular, which the defense counsel read to me, I remember completely as it came about, when we discussed whether the Ministry of Justice, as we used to say could be regarded -- we used to say 150 per cent a Nazi authority -- agency. Thereupon I stated that nobody could say so who knew the conditions in the Administration of Justice in Germany, since the Justice Department especially was strongly attacked by the Nazis. I remember especially the Fuehrer's speech of April, 1942. To every trained lawyer or justice who was used to judge according to the law, this speech was a heavy blow. The interrogator asked me whether I knew any details about the attitude. Thereupon I said briefly that at the time I spoke with Herr von Donani, the adjutant pr plenipotentiary of the Minster of Justice Guertner, that I interrogated him thoroughly; there existed no doubt whatsoever, and Donani also expressed this that in the Ministry of Justice there was opposition against the absolute request for guidance action of the party authority, rather there was a reserve against this; and that in all individual cases attempts were made to exclude and influence which went beyond the legal authority; especially on this occasion Donani, Herrn von Donani told me that Herr Mettgenberg whom I don't know until this very day, and whose name I only know, absolutely maintained the directives of Minister of Justice Guertner, and from a COMMISSION III CASE III note which Donani made, I know and can testify under oath that Donani regarded Mettgenherg as a. personality who after the 20th of July, if the case should arise, would again take the pant of the absolute independent Administration of Justice.