"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.
BY MR. WOOLEYHAN:
Q Did you sit on the case involving a son and his mother, named Heubeck, involving much this same set of facts?
A Yes; I was in touch with one such case.
Q At the time you adjudged the Sauer Case which we are now talking about were you already familiar with what had happened to the Heubeck boy after he had been sentenced?
A I did not know.
Q Well, how does it happen then that the Heubeck Case file, including all that we, as the Prosecution, know about the case Heubeck, was tied to and a part of the Sauer case file at the time you looked at it? I refer to the reverse side of Page 17 at the bottom. What does it say there, Mr. Oeschey?
A On the reverse side of Page 17 there is a decree by the chief public prosecutor of 17 September 1942, "File Huebeck" - Rosa, 110, etc. Please fetch and attach 21 - 9; re-examination and report again."
Q Now, Mr. Oeschey, do you remember from the Heubeck Case, which your Honors, I might add, is Exhibit 559 before the Court -- do you remember from the Heubeck case, on which you sat, that after you sentenced the boy he was sent back to the same concentration camp from which he came? Do you remember that?
A No.
Q It appears on the Heubeck file. How is it that we know it and you didn't? Did we of the Prosecution read the case files in this lawsuit any less carefully than you did or any more carefully?
A I assume that the Heubeck file was no longer attached to the file when the file reached my office.
Q But it states on the Sauer file that the Heubeck file was to be attached to it, does it not?
AAt that period of time these were files for investigations by the public prosecutor, not by the court.
It is possible or even sure that the prosecution, during the investigations, called for the HeubeckRosa files.
Q And in spite of all that we have been through this afternoon, you still insist that everything that went on in concentration camps of a nature tending to terrify or undermine the people at home were still all rumors and untrue as far as you were concerned until after the war? Do you still insist on that?
A These atrocities which were committed systematically in concentration camps as we know today I only heard since the collapse.
COURT III, CASE III
THE PRESIDENT: May I ask you one question -- excuse me, Mr. Wooleyhan. In answer to a question of the Prosecutor, with reference to Sauer, you said you did not know that he was handed over to the Gestapo before his term expired. Let me ask you: Did you know that he was handed over to the Gestapo after his term had expired?
A. I did not know that. I did not see the files any more. I don't know when Huebeck was sentenced. These are all decrees by the prison institution, and the court was no longer concerned with them and was not touched with the matter as such.
THE PRESIDENT: I simply asked you if you knew, and I have your answer.
A. Yes, quite.
BY MR. WOOLEYHAN:
Q. I am passing now to these frequently discussed theories of race that the Nazi party expounded. Mr. Oeschey. You have indignantly denied here that they ever played any part in the judicial proceedings of the Nurnberg Special Court. With regard to theories of race, of course, we refer to the treating of Jews, Poles, Ukrainians and any other race other than the German Aryan race in a discriminatory way; that is the way we mean that. In that connection I show you a document. Does that appear to be the official Special Court case file of the defendant Emit Schoenbaum?
A. Yes, this is the official file of the Special Court, Nurnberg, Schoenbaum, SD, 348/1941.
Q. Yes, on page 7 of that case file does it appear that Schoenbaum was arrested for not reporting for work?
A. Yes, on page 7 of that case file I find that Schoenbaum repeatedly was called up by the labor office of Nurnberg in order to be given work, but he never appeared; that he was taken to the Labor office and assigned to a pencil factory in Nurnberg. At the same time the labor office pointed out the consequences if he would not accept this position.
Q. Now, on page 8, do you find that Schoenbaum was characterized as an orthodox Jew hostile to Germany; and on page 15 do you find that he was refused a defense counsel?
A. On page 8, first, I find that Albert Fichtner, who was a police secretary, says in his police report, and I quote: "From his whole conduct it became clear that he was an orthodox Jew who is hostile to Germany, even though at times he made the impression of being slightly inferior mentally.
Q. Now, on page -- go ahead.
A. And on page 15 there is, first of all, from Max Stern, a legal consultant.
Q. Mr. Oeschey, was he refused defense counsel, or not? Does it appear there one way or another:
A. On page 15, on the reverse, there is the decision by the president of the Special Court, Rothaug, that the legal consultant, Max Stern, according to paragraph 1 of the decree of the provision, 15/12/1942 is refused as defense counsel.
Q. Now, on page 37, Mr. Oeschey, with regard to certain malicious utterances that this Jewish defendant Schoenbaum is alleged to have said, does the indictment allege the following utterances: "Why would I work? Germany is losing the war anyway, and he stated furthermore that the German soldiers were getting beaten in Russia, that they were now retreating. A Jew could not live any more in Germany, but there was no chance to emigrate any more because the German army was everywhere." Do you find that, Mr. Oeschey, in the indictment?
A. Yes, that is on page 37 of the indictment.
Q. Now, on page 50, which is the opinion in the trial of the Nurnberg Special Court, dated 4 December, 1941, do you find the following language in the opinion: "By the meting out of punishment nothing extenuating could be found. The defendant is previously convicted for endangering the peace because he dared, as a German Jew, to visit a German bath/ and for destruction, because in the apartment in which he is living he behaved with an unheard of impudence -- all this despite the antiJewish legislation in the Reich.
The act to be tried now is the acme of Jewish impudence, with which the defendant tries to act noxious in a political sense. To such Jewish arrogance only one answer can be given according to the conviction of the court; namely, the highest punishment of two years in prison." And, is that opinion signed by you as presiding judge?
A. Yes, it was.
Q. Now, do you find on the back page of the transfer notice, I believe it is the last page in the original opinion there, that Schoenbaum was transferred thereafter to Auschwitz concentration camp on the 19th of December, 1932?
A. Yes.
Q. And you didn't know that?
A. I didn't know that.
Q. That is sufficient. Now, Mr. Oeschey, I assume that before you became presiding judge of the Nurnberg Special Court, before that time I assume you sat as deputy presiding judge on several occasions; is that true?
A. Yes, quite.
Q. Now, did you follow any regular procedure; by that I mean did you sit as deputy presiding judge in the absence of the presiding judge on any particular day each week.
A. We were not bound to any special days of the week, but what happened was that the Special Court at that time consisted of two or three departments which met weekly under the presidency of Rothaug and then of my own and Ferber, and each week I regularly attended one session.
Q. These one sessions a week, once a week sessions that you regularly attended, did you make a habit of going on any particular day each week.
A. It depended; it varied at various times or days of the week.
COURT, III, CASE III
Q. Could you say with any degree of certainty on what days of the week you sat in 1942, for example?
A. Various days of the week.
Q. You don't remember any particular day more than any other? I am suggesting Friday. Was Friday a day you liked to go and sit in court?
A. Yes, Friday.
Q. Well, tell me, if Friday was a favorite day of yours, did you happen to sit on the Nurnberg Special Court on Friday, the 26th of June, 1942, at which time a case appeared for trial involving a Pole, a foreign laborer in the Reich, named Skalka, S-k-a-l-k-a?
A. I cannot remember.
Q. Does the name mean anything to you?
A. Completely unusual.
Q. Is it possible that as a deputy president you sat on the court on that day?
A. I usually sat on Fridays, yes; but, Friday was also frequently a day when Rothaug held sessions. He had the habit of putting the days for the sessions outside of Nurnberg on the early days of the week, and returned Wednesday and Thursday, and then perhaps he would hold a session on Friday in Nurnberg.
Q. Would you say then that in 1942, in the summer, that during the Friday sessions, the presiding judge was either Rothaug or you-- one or the other?
A. It might have been Rothaug; it might have been me; it could also have been Ferber. I really cannot tell you all the details.
Q. Now, I call back your mind now to January, 1944. Do you remember the case of a miller, a man that owned and operated a grain mill in Stegmuehle, named Zollner, who was indicted and tried before you in January of 1944 for unlawfully grinding and selling grain? Do you remember that case? I am now distributing copies; it may refresh your memory.
A. I have decided in many of these cases -- this particular case I cannot recall with any help by document.
END Court No. III, Case No. 3
Q You see there, Mr. Oeschey, a document we have made, and on the first page is the sentence of your Court at that time, and do you see there that Zollner was sentenced to death for violating the war economy decree by grinding this grain and selling it without the proper buying certificates, is that a fair description of the case?
A Yes, that is so.
Q How attached to that sentence do you find three letters addressed to you, or rather one addressed to you, one addressed to the Prosecution and one addressed to the Minister of Justice, each of which asked for clemency for this miller, and the letters in each case being written by a mayor or a Buergermeister?
A Yes, quite.
Q And do you further find that on page 5 of the original which you have there that the mayor of the town in which this miller lived cites all of the background of this miller, what a family man he had been and what a pillar of the community he was and said that he couldn't describe the population's reaction to your sentence of that man as anything but too severe. I am quoting now from that page when he says that the population without exception considers the sentence too severe, and he says "in view of this sentiment of the people and so on - now I ask you at the time you passed the death sentence on this miller for grinding and selling this grain, did you feel that you were applying what the popular sentiment of the people would have demanded of you as a judge?
A In any case or at least I cannot say anything about the sentence itself. It is not available here. From the petitions for pardon, nothing becomes clear. But to what extent Zollner was engaged in this black marketing of grain, the quantity must have been so large as to make it under the war economy decree an extremely grave case.
Q Excuse me - go ahead.
AAnd if under the war economy regulations a particularly grave violation existed, the death sentence was compulsory.
Court No.III, Case No, 3.
Q Tell me, Mr. Oeschey, in your experience, living in Germany during the war years as you did, and particularly during 1944, at which times were getting rather tense and hard and food was rather scarce, do you think the mayor of the town involved and the buergermeister would have written you these letters, saying that by every feeling of the people in the community it was too severe a sentence? Do you think those people would have dared write you those letters if it had been such a serious violation of the war economy as you described, do you think they would have opened themselves to Prosecution by so doing?
A Certainly not, the buergermeister was quite easily in a position to write a letter of this sort as he did. This is a letter above reproach and there was no reason why he should be afraid. I would like to point out that the letter never reached me. It was addressed to the President of the Special Court in Nurnberg.
Q I realize that, Mr. Oeschey. I don't contend it did reach you. It is immaterial to our discussion whether you did receive it or not. I am merely pointing out to you that the whole community in which this defendant lived, including the highest officials, thought this sentence was contrary to the feeling of the people, and I am asking you if at the time you sentenced him you thought it was?
A That the population regarded what Zollner had done as approvable as it were, I could not assume when I tried the case, nor do I know whether this report by the buergermeister was correct saying here the population without exception regards the sentence and the execution of it as too harsh.
Q Tell me this, Mr. Oeschey, in view of the obvious wide disparity of opinion as to what the sound sentiment of the people is, did you have that fact in mind when you stated to us some months ago before the trial started, as a matter of fact we were talking to you, and as I remember you said that the sound sentiment of the people was a wishy-washy, completely elastic concept of no practical use to juris Court No. III, Case No. 3.prudence.
Do you remember saying that?
A Whether I said it in the form in which it was translated to me just now, I don't think I said it that way, but the trend of my remark probably was with this term - "according to the sound sentiment of the people" was a rubber like term, which I think is the explanation I would like.
Q Now, tell me, Mr. Oeschey, do you see any connection between the conclusion you have stated as to the rubbery quality of this "sound sentiment" in criminal cases and the way it actually worked out with regard to this man Zollner? Is that what you had in mind when you called it rubbery like, to be stretched when the occasion demands.
A I assume, Mr. Prosecutor, that Zollner was sentenced under paragraph I of the war economy decree, that regulation does not contain any phrase such as according to the sound feeling of the people or anything like that.
Q But "Wehrkraftzersetzung" does, doesn't it?
A Wehrkraftzersetzung, as far as I remember, does not either, the Public Enemy decree does.
Q Yes, it is the Public Enemy decree, isn't it, and if such a feeling about a certain act could be as disparate as it was in the Zollner case could it not likewise be disparate in public enemy cases, in other words, as a judge, you really didn't know what the sound feeling of the people was, did you?
A Of course, I knew that very well, I personally always understood about the sound feeling of the people, being a reasonably and legally thinking average person from among the people.
Q And the fact that they so widely differed from your views in the Zollner case is merely gratuitous, I assume?
A In the Zollner case I conducted myself legally, quite correctly. I can explain this now before I even look at the file more closely.