Without any documentary evidence I cannot remember any details of the case, but what I have said just now is what I can tell you from memory.
Court No. III, Case No. III.
Q. The witness Huemmer furthermore mentioned the Rupp case, but in his testimony he was very vague. Please will you give us a brief account of that case?
A. The Rupp case was also a case where the defendant had been indicted for undermining of defensive strength. All I can remember is that Rupp in circumstances which I no longer recall had a conversation with a group of soldiers and at the beginning of that conversation he said, and the witness has corroborated that here, "It would be pleasant to go to a cafe now to consume a glass of wine and to smoke a cigaret." Next he made a few derogatory political remarks. One of the soldiers told him to stop making such remarks and Rupp thereupon made a speech to these soldiers, and as far as the meaning of that speech goes, he said it would be much wiser for them, the soldiers, to go home, to give up the struggle. Why were they being stupid enough to continue to hold out their necks? It was not worthwhile any longer. One of the soldiers hit Rupp over the head and that soldiers saw to it that Rupp was arrested. Those facts were established beyond all doubt at the trial. Several witnesses were heard. The remarks themselves and above all the fact that these remarks had been made to soldiers did not allow us to assume that this was a case of lesser gravity, and particularly not as -- and I don't think I make a mistake here -- Rupp was a political leader. Under the extra-ordinary wartime law the death sentence therefore was mandatory.
Q. The witness Eichinger, Prosecution Exhibit 150, mentions the Zippelius case. He was the defense counsel before the Civilian Court Martial in that case. What happened in that case?
A. Here Zippelius was a woman who had been indicted for undermining of defensive strength.
I cannot recall the remark which she was supposed to have made, but her remarks referred to Hitler and to giving up resistance. The prosecution witness was examined by me very thoroughly at the trial, and at the trial she somewhat watered down the testimony she had given during her interrogation by the Gestapo. The prosecutor, however, asked that Zippelius be convicted and be sentenced to death. However, in this case the court arrived at the conclusion that according to the remarks themselves and the character of the defendant, this was a case of lesser gravity. Therefore, the judgment said that the case had to be transferred to the ordinary courts.
Q. What other cases were tried?
JUDGE HARDING: If a case was transferred under these circumstances and the ordinary court came to the conclusion that it was a case of greater gravity, then did they execute this person who was transferred?
THE WITNESS: The ordinary court naturally was not bound by the view of the Civilian Court Martial, that is to say, it might well have happened that the ordinary court did not consider the case as being one of lesser gravity in which case the ordinary court would have had to pass the death sentence. However, I think that is merely a theoretical speculation. I don't think in actual practice that would have occurred.
BY DR. SCHUBERT:
Q. What other cases were tried?
A. There was the case of a looter, a plunderer. That was altogether a clear case and it was dealt with under Article I of the Public Enemies Law, and it was a case for the death sentence quite clearly. The defendant during one of the air raids -- I believe it was the air raid that was made in March, 1945, -- had looted from bombed houses and also from the street, and the things he had stolen were actually things that had been salvaged from damaged premises.
Another case which I remember was that of another woman, but I can't recall the name. That woman was indicted for undermining of defensive strength. The same facts were established as in the Zippelius case, and contrary to the view of the prosecution, the court arrived at the conclusion that this was a case of lesser gravity and therefore by it's judgment transferred the case to the ordinary courts.
In the same manner another proceedings for undermining of defensive strength against an elderly man worked out. I don't remember the man's name either, not can I remember any details concerning the remarks he made, but those remarks were always of the same nature and they always amounted to advising people to give up further resistance. In the case of this male defendant, too, the court assumed that this was a case of lessor gravity and therefore transferred the case to the ordinary courts.
Q. Do you remember the Dirscherl case?
A. Yes, I do. Dirscherl had also been indicted for undermining of defensive strength. He was a master shoemaker from Nurnberg. Before 1933 he had been an active politician. I think he was a member of the Economic Party, the Wirtschaftspartei in the Reichstag. With the local political agencies Direscherl was enjoying a rather unfavorable political reputation. He was denounced for having refused to sell shoes to a woman in a shop who had brought along her necessary coupons. It was alleged that he had told the woman that he had no shoes; she had better wait until the Americans arrived and then everything would change anyhow, and that remark was made the basis of the indictment for underming of defensive strength, but the case ended in an acquittal.
A thorough examination of the woman revealed no reliable basis for the man having made these remarks or for having meant his remarks to undermine the defensive strength.
Q. The Prosecution examined the witness Filbig, here in connection with the Gottfried case, transcript page 3351. Three defendants are supposed to have been involved in that case, and they were indicted for having removed tank barriers and for having obstructed the Volkssturm. Can you tell us something about that case?
A. What I remember of that case is the following. It is quite correct there were three defendants in that case, and they came from the same village. All three defendants were indicted for having aided and abetted the enemy, and in the case of Gottfried the indictment was also for undermining defensive strength. I can tell you from memory that Gottfried somehow on the way to some village or other was arrested by an American patrol. I can't remember any details. Together with him several other civilians were arrested and were taken into custody. A prison had been set up in the place by American troops. Gottfried was charged with having in the course of the interrogation to which the American troops subjected him made remarks which amounted to treason because he told them about the defense measures which had been taken in his own village. At any rate -- and that was the main point -- when Gottfried came back to his own village, he made remarks of an undermining nature and told people all sorts of things about the experiences he said he had, of the observations he said he had made during his brief period in prison.
Those details were nothing but pure inventions, but the consequence of his talk was that people in his village lost courage and near panic broke out. The final result was that the inhabitants removed obstacles of defense or did not obey defense orders. In removing those obstacles or refusing to obey orders for further defense, the other two defendants also had participated. As far as I recollect, those were roughly the facts of the case which were established beyond all doubt in the trial.
The final outcome of the trial was that Gottfried was sentenced to death while the other two defendants were acquited. The acquittal of the other two defendants occurred because they stated that in performing the action which in itself did constitute aid and comfort to the enemy they had been seized by the panic which had broken out due to Gottfried's doings in their village. They also stated that they had joined in the doings of the other inhabitants without properly realizing what their doings actually amounted to.
In view of the facts which had been established, it was impossible to refute these statements which those two defendants made and, therefore, there were doubts as to whether those two defendants had deliberately aided and abetted the enemy. Following the principle in dubio pro reo those two defendants were acquitted. Such mitigating reasons or such circumstances, however, did not apply in the case of Gottfried. He had quite intentionally and deliberately caused that excitement and that panic and that fright among the inhabitants.
Q. The witness Filbig testified here, transcript page 3356, that the proceedings against Gottfried and another two defendants had only lasted forth or forty-five minutes.
Now what do you say to that?
A. I believe that the witness Filbig has made a pretty bad mistaken. Even considering that there were three defendants who made full confessions, it would have hardly been possible from the technical point of view to conclude the proceedings which altogether were in keeping with the provisions of the Penal Code in a time of forty or fortyfive minutes. I can't tell you now how long that trial took, but I remember that I had set the trial for four o'clock in the afternoon and that as it was my custom I opened the trial on time. I also remember that it was just beginning to get dark, that dust was falling, when I went home. I, therefore, estimate that the trial must have lasted something between two and three hours.
Q. Were witnesses heard?
A. I can't tell you for certain. I believe that a police official was heard as a witness, but I wouldn't like to say that for certain.
Q. Filbig, transcript page 3362, testified that you had been present when the defendant was executed. Is that correct?
A. Filbig again made a mistake. I did not attend Gottfried's execution nor did I ever attend any other execution. However, I remember that the other two judges of the Civilian Court Martial did attend the execution. I refused to attend.
Q. Finally Filbig testified, transcript page 3353, that you had been particularly indignant because Gottfried had spoken so well of the Americans and that you had expressed your fury by Cynical remarks. What do you have to say to that?
A. Concerning the treatment which Gottfried had received from the American troops I did not say a word about, but in the context in which those events were discussed, Gottfried said that the American officer who had interrogated him had given him a few cigarets and some candy.
It was in that connection that I charged him with having lowered himself to bestraying his own compatriots for just a little candy and some cigarets. Naturally that remark was in no way directed against the American forces.
DR. SCHUBERT: May it please the Court, I have now concluded the direct examination of the defendant Oeschey.
THE PRESIDENT: When do you wish to put in the rest of your document books?
DR. SCHUBERT: I had meant to do that after the conclusion of the cross and redirect examination. I don't know whether the Prosecution -
THE PRESIDENT: Is that agreeable to the Prosecution?
MR. WOOLEYHAN: Yes, sir.
THE PRESIDENT: Very well.
Witness, may I ask you one question. Schroeder was the prosecutor before the Civilian Court Martial, was he not?
THE WITNESS: Schroeder?
THE PRESIDENT: Yes.
THE WITNESS: Yes.
THE PRESIDENT: He was the prosecutor?
THE WITNESS: Yes.
THE PRESIDENT: Who was his superior?
THE WITNESS: His superior in the Civil Court Martial was the Reich Defense Commissar.
THE PRESIDENT: That is all I wanted to know.
You may cross examine.
DR. KOESSL: Counsel for the defendant, Rothaug.
May I just speak for a few moments?
THE PRESIDENT: Yes. Yes, you may.
CROSS EXAMINATION BY DR. KOESSL:
Q. Was Rothaug a Gaustellenleiter?
A. Rothaug never was a Gaustellenleiter.
Q. Did he ever belong to the Corps of Political Leaders?
A. No, he didn't.
Q. What do you have to say about the testimony by the witness, Ostermayer, to the effect that Rothaug and you during the consultations which Ostermayer attended had always ignored Ostermayer in his opinions?
A. I never noticed anything of the kind. Ostermayer at our deliberations always played a very lively part and participated in all discussions, and he had the opportunity to voice any misgivings or his own opinions or anything.
Q. What was Doebig's view of Rothaug according to what Doebig said to you?
A. Doebig several times spoke very much in praise of Herr Rothaug to me, and he said that he, Doebig, was gratified that he -- to put it in his own works -- had such an outstanding man as a judge at the Special Court.
Q. And now a last question, witness. Did Rothaug work for his assistants? Did he aid and assist them?
A. I can answer that question definitely in the affirmative. I think that the most pleasant human quality of Rothaug was his friendship for others, his behavior as a comrade.
THE PRESIDENT: Is there any other direct examination? It appears that there is none.
You may cross examine.
CROSS EXAMINATION BY MR. WOOLEYHAN:
Q. Mr. Oeschey, in connection with your alleged reluctance to pass the death penalty, you cited examples of where you had avoided doing so. One example that you cited to the Court was this case involving theft from the wool garment collection. I believed that was the Guenter case. In that connection I hand you a document. On page 21 of the file which is part of the Opinion do you find the following statement as part of your opinion in that case:
"When in 1933 in Aufhausen where the defendant lives the National Socialist Women's League was formed, she did not join immediately but studiously recruited new members, took over the office of the Blockwalter and collected the membership fees"? Do you find that in there?
A. Yes, I do.
Q. Now on page 22 do you find the following language also in the Opinions:
"After the death of her husband who was an SA man and a member of the NSDAP, she maintained her offices in these National Socialist welfare organizations and in the Reich Air Protective League despite the living conditions which had become very difficult"? Do you find that also, Mr. Oeschey?
A. Yes, I do.
Q. Now on page 24 of your Opinion in discussing the defendant's character, do you find the following:
"With her exceptional willingness to cooperate with the Party Movement"? Do you find that?
A. Yes, I do.
Q. And now on page 15 of that file, on page 15 of the clemency file, which is attached to the dossier there, page 15 of the clemency file, do you find that the Nazi Party office in Bayreuth ten months after you passed sentence recommended this woman's release on probation?
A. The letter is dated 21 November 1942. It isn't dated the 10th of March. Is that the same letter?
Q. I didn't say the 10th of March, witness. I said ten months after you passed sentence. You passed sentence on the 23rd of January, 1942, did you not?
A. Yes.
Q. And this Party Recommendation for Release on Probation is dated 21 November 1942, is it not?
A. Yes.
Q. That's all; thank you.
Now during your direct examination you told the Court, Mr. Oeschey, that with regard to the inside conditions prevailing in concentration camps you only found out about those things after the end of the War, and you further say that in any cases where that was the point of issue before you as a judge that any rumors or statements by defendants that conditions were bad were, in your opinion, invented.
A. Yes.
Q. In that connection I hand you a document. Does it appear that is the official Special Court case file in the proceedings against Friedrich Sauer and his wife?
A. Yes.
Q. Now on page 16 of the file does it appear that these two parties are being held in detention in Furth for possible prosecution under the Malicious Acts Law? Does that appear?
A. On pages 16 and 17 of this file there is the record of an interrogation by Judge Ankenbrand and a warrant for arrest issued against the defendant because he was definitely under a suspicion for having made deliberate remarks designed to do serious damage to the well being of the Reich, Article I, Section 1, and Article II, Section 2, of the Malicious Acts Law.
Q. Now on page 64 of that case file, Mr. Oeschey, do you find that you as presiding judge sentenced Friedrich Sauer to two years imprisonment under the Malicious Acts Law?
A. Under Article I, Section 1, of the Malicious Acts Law, Friedrich Sauer was on the 27th of May, 1943, by the Special Court, Nurnberg, with me as presiding judge sentenced to a prison term of two years.
Q. On page 66 of your Opinion in that case do you find the following statement:
"By gross misrepresentations and exaggerations the defendant created the impression that the camp inmates were mistreated by the guards, that they were badly fed and forced to carry out excessive health-damaging work. In particular the defendant hinted that horror acts were committed in the Mauthausen camp and after said it should be named 'Murder House'"?
A. Where is that supposed to be? What page?
Q. On page 66 which is part of your Opinion in the case.
A Yes. Yes. Yes, I have found it now.
Q Do you further find in the next paragraph the following language:
"When in August, 1941, the plumber, Albrecht, collapsed in the street owing to a painful gastric illness, the defendant said, 'This is heard rending. Like that they used to lay around up there where I was."'?
A Yes.
Q To the defendant's wife on that same page do you find that the defendant is alleged to have said "that the inmates had been starving and were forced to eat potato peels. Furthermore, he told of a camp punishment called 'tree hanging' so that the co-defendant had to gain the impression that the inmates were in a tortuous manner hanged over a branch with their arms tied behind their backs"? Do you find that?
A Yes.
Q Now furthermore on page 65 of your Opinion do you find that the defendant had been twice detained in Dachau concentration camp, once in 1935 and once in 1939, for neglecting to maintain and support his children?
A Yes.
Q Do you find that he was afterwards detained in the Mauthausen concentration camp?
A Yes. The second time he went to Mauthausen camp until the 31st of December, 1940.
Q Now on page 22 of that file, Mr. Oeschey, do you find a teletype addressed to the local Nurnberg Gestapo office, from the Mauthausen camp authorities dated the 6th of October, 1942, signed, "Schulz, SS-Untersturmfuehrer"?
A Yes.
Q In that teletype do you find the following language:
"As judicial officer of the Mauthausen concentration camp I report that the rumors spread by Sauer about this camp are untrue in all points. In addition I further report that Sauer signed on the 31st of January 1940 the usual declaration not to talk about the camp institutions"? Do you find that, Mr. Oeschey?
A Yes.
Q Now do you find on page 23 a report by an SS-Sturmbannfuehrer from the concentration camp Dachau to the Nurnberg Gestapo Office dated 16 October 1942?
A Yes.
Q Does that report on the reverse side of page 23 state that all of the remarks by Sauer concerning Dachau are either exaggerations or incorrect inventions?
A In part. The sentence says:
"All other statements by the defendant, Sauer, as far as Dachau concentration camp is concerned are incorrect and inventions."
Q Yes. Now who signed that report from Dachau? Just his title, please.
A SS-Sturmbannfuehrer and Camp Commandant.
Q Now, Mr. Oeschey, from the case file which you have now had refreshing your recollection, what other evidence can you point to upon which you founded your judicial opinion and the sentence of the defendant on the ground that what he spread as fact was not true?
A That opinion of mine as a judge is based exclusively on the fact that the defendant, Friedrich Sauer, insofar as he was convicted at the trial did not stick to his remarks, and for the rest, after all, he was not convicted.
Q I beg your pardon, Mr. Oeschey. You affirm that the defendant was sentenced to two years which appears on page 64 of your judgment.
A Yes. Yes.
Q What do you mean he was not convicted?
A No, that was not what I said. He was only convicted inasmuch as he confessed to having made untruthful remarks. Sauer, as you can see from the indictment, was charged with having committed an offense under Article I, Section 1, of the Malicious Acts Law because he had made untrue statements about the concentration camp where he had been housed.
Q I am asking you, Mr. Oeschey, on what you based your decision other than the SS reports from Dachau and at Mauthausen? In other words, how did you satisfy yourself as a judge that what Sauer said was not true?
A I was able to do that by the statements which the defendant, Sauer, himself made at the trial.
Q Where does that appear in your opinion?
A On page 67, Roman Numeral II. That gives the evaluation which the court gave to the evidence.
Q Yes, I am quite aware of your evaluation, Mr. Oeschey. I am asking you what evidence you had to consider about the conditions in Mauthausen so you could properly evaluate what Sauer said? You had two reports from the camps themselves. What else did you have?
A Well, Sauer's statement. Sauer's statement. After all, Sauer was indicted because he had untruthfully said that at the concentration camps the inmates had been thrown into the wash basins and he had also said that inmates with their arms tied to their backs had been hung over the branches of trees. Tree dangling was mentioned here.
Q Yes. Yes, I know that; we have read that. Do you consider the indictment as evidence?
A No. No, of course not. Nonsense! I considered I had sufficient evidence for passing judgment on Sauer because he at the trial admitted that he had made untruthful remarks to a certain extent. He himself no longer stuck to it that people had been cruelly thrown into wash basins or brutally had been hung across the branches of trees, but he admitted that had happened once just as a piece of nonsense when an inmate had been put into a wash basin. He also said that had never happened that the inmates had their arms tied across their backs and then had dangled from branches of trees, but he said that what actually happened was that the inmate was tied to a pole where he had to stand for some time, and that means that the things he had told people about conditions in the concentration camps were all something quite different from what he now said at the trial -
Q Mr. Oeschey -
A -- about these conditions.
Q I beg your pardon. Did it ever come to your attention an trying cases which had been investigated beforehand by the Gestapo or cases involving former inmates of concentration camps who changed their testimony at the trial -- did it ever come to your attention that they were under duress by the Gestapo to so state on pain of being returned to the concentration camp?
AAt those trials I afforded the defendant every opportunity.
Q That is not the question, Mr. Oeschey. I am asking you if the situation which I described to you ever came to your attention or notice?
MR. WOOLEYHAN: Perhaps we had better adjourn anyway, Your Honor.
THE PRESIDENT: It appears that the recording system is exhausted for the moment.
We will recess for fifteen minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY MR. WOLLEYHAN:
Q Mr. Oeschey, I assume you have an answer to that question now?
A What I understood you to ask me was whether I have ever heard that inmates of concentration camps had been threatened by the Gestapo with being returned to the concentration camp if they would make statements about their experiences in the concentration camp.
Q With one further addition: threatened to such an extent that they would alter testimony before a court than return to a concentration camp. Did that situation or something similar to it ever come before you?
A No; particularly not in the case of Sauer. The Sauer dossier shows that the defendant, during the main case a number of statements and only in some points had to admit, in fact, when he had told the untruth. On the basis of these admissions he was sentenced because he had made exaggerated or too general statements on concentration camps which he himself did not wish to have true any more.
Q Let us briefly reconstruct. In deciding this case you had, first of all, two reports from SS officials at concentration camps in question. You also had the testimony of the defendant himself. You say that in addition to the SS reports the defendant himself changed his mind about what he had originally said conditions were. Now, was it on the basis of those three things, the two reports and the defendant's testimony, that you arrived at a conviction for his remarks being untrue?
A That is not correct.
Q What else did you have?
A The two reports which you have mentioned were not discussed during the trial, particularly they were not taken into consideration for the verdict.
Q But you had read them, had you not?
A Well, I most probably have read them if they were part of the dossier.
I must have read them.
Q All right. What else besides the defendant's testimony did you have?
A Well, apart from the testimony of the defendant I had nothing. But that was perfectly sufficient. If the defendant himself maintained only part of his statements and admits in the trial without any threat or duress in this or that point; "I have told lies," I assume that this man has confessed in accordance with the truth. Anyway, these statements were more valuable to me than any statements made by witnesses, for instance. I can hardly imagine that a defendant who has done nothing would confess to a court.
Q Now, Mr. Oeschey, on Page 16 of the case file there is a communication to which you have already referred, namely, it is a letter to the local court of Nuernberg from the Gestapo office and it says, does it not, in the last paragraph: "Should judicial detention not be ordered or an arrest warrant be lifted, I request the retransfer of the defendant." It is signed by the Gestapo.
Now, didn't that lead you to believe that the Gestapo still wanted this man?
A This request with which we are concerned here is addressed to the investigating at Nuernberg, not to the Special Court.
Q Didn't you read it?
A I should scarcely think I would have read it because I wouldn't be interested.
Q I thought you told us that you carefully perused the files of cases that you tried. It is right in the file.
A Well, that has nothing to do with the case itself.
Q The fact that the Gestapo wanted this man had nothing to do with the case itself; is that what you are saying?
A This request to the investigating to return the arrested men if no warrant of arrest should be issued you will find in 99 out of a hundred cases of the communications addressed by the Gestapo to the investigating judge.
You can find it in all cases, not only in that of Sauer. This is a typical request which you will find in any dossier.
Q Why do you suppose the Gestapo, when they reported on this man from Mauthausen, stated that he had signed the usual declaration that he wouldn't talk about what he had seen or done there? Why was such a declaration usual?
A I don't know.
Q You had no idea why that was?
A I was never informed and enlightened about that point.
Q When you invite a guest to your house, when he leaves do you make him sign a declaration that he won't talk about now you treated him?
A Well, scarcely, sir, but I believe this comparison isn't a very happy one because the man was not invited to attend a concentration camp.
Q Please turn to page 84 of the case file, Mr. Ocschey. On page 84 do you find that the defendant Sauer, after serving a part of the sentence which you gave him, was in fact transferred back to the Gestapo?
A On Page 84 there is the communication from the person in Nuernberg concerning the leaving of a prisoner, It says there: "Sauer has been released on 15 February 1944 and handed over to the Gestapo in Nuernberg."
Q Now, Mr. Oeschey, when he was transferred back to the Gestapo before his term was up, did you know that that happened?
A I should like to call attention first to the statement that he served his whole sentence.
THE PRESIDENT: You may answer the question directly first and explain afterwards.
A (Continuing). That before a man had served his sentence a prisoner would be transferred back to the Gestapo I have never experienced. I never heard anything about it even.