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.
Court No. III, Case No. 3.
Well, I mean, after all the position is not that what the buergermeister says in his letter here, should be a hundred per-cent correct.
Q Well, tell me this, Mr, Oeschey, if you so capably explain to your own satisfaction what the sound sentiment of the people requires. Why did you say as you did that it was a completely elastic and rubbery like concept, of not much account to the law, they are naturally exclusive, are they not?
A Well, not entirely, you must take into consideration in what connection I said that at the time to the interrogating official. We were discussing at that time the various jurisdictions under that term and I expressed myself to the effect that all of these definitions of the sound feeling of the people which were attempted to be used at the time seemed to me a highly rubbery affair.
Q Tell me, Mr. Oeschey, with regard to the sound sentiment of the people, did you see any connection between you as a judge, making up your mind as to what the sound sentiment of the people requires and the making up of your mind as to who constitutes a habitual criminal, do you see any similarity in your thought processes there?
A Well, I am inclined to say that with all of the decisions arrived at by one of our judges, I always was guided by the views of a reasonable and legal minded man, even when considering the question of whether or not the defendant was a dangerous habitual criminal.
Q Tell me, would you say it was the prevailing German legal theory after the beginning of the war that a man whom you had made up your mind was a habitual criminal, that you should demand that he should be eliminated rather than rehabilitated? would you say that is a fair example then of the prevailing rule?
A I am afraid I did not quite follow your question. Do you mean whether the prevailing opinion was Interpreter - Would you repeat it - please?
Q I was merely asking whether or not it was the prevailing Court No. III, Case No. 3.attitude, that a man whom you had made up your mind was a habitual criminal should be eliminated rather than rehabilitated, is that your idea?
A That depended, and since the 4th of September 1941, the law existed whereby if the protection of the nation made it imperative that a dangerous habitual criminal was to be sentenced to death.
Q What I am getting at, is quite apart from the legal profession we have discussed in this court room. In many cases men whom you had decided were habitual criminals should be sentenced to death and executed rather than being given another sentence and I am merely asking you if you feel that preferable to rehabilitation, and if so, why?
A If there was the slightest hope in any of these cases that any of these people could be returned to normal social life I would have been the last to advocate the death sentence.
Court No. III, Case No. 3.
Q But you as judge in the last essence were the one that decided whether or not the man could return to society or would be executed as a habitual criminal in your opinion? It was you who decided in the last essence, wasn't it?
A The court of which I was a member.
Q What I am really getting at is, even assuming that a man is a habitual criminal, assuming that he is by anybody's standard anywhere, why is it necessary to kill him -- whether his crimes constitute a string of petit larceny, or embezzlement, or murder -- in order to make society better? You realize, of course, that other systems of law don't agree; and I'm wondering what your explanation is.
DR. SCHUBERT: Your Honors, I object. He is arguing with the witness. He's asking him for his opinion, which is irrelevant.
MR. WOOLEYHAN: Of course I'm asking him for his opinion.
THE PRESIDENT: The objection is sustained.
MR. WOOLEYHAN: May it please the Court, the prosecution offers in evidence another document. Mr. Willsie, do you have the next exhibit number of the prosecution there?
THE PRESIDENT: I think I have it here. Number 579 was offered and rejected, was it not?
THE SECRETARY GENERAL: Reserved, sir. I have it.
THE PRESIDENT: Then this next exhibit will be 580.
MR. WOOLEYHAN: The prosecution offers as Prosecution Exhibit 580 a sworn affidavit of the defendant Oeschey from which I derived these remarks concerning the sound sentiment of the people and habitual criminality which we have been discussing. Now, as Prosecution Exhibit 581 we offer in evidence the Zollner case, which is NG1126.
DR. SCHUBERT: May it please the Tribunal, as far as the affidavit of this defendant is concerned, I wish to make an objection. He gave this affidavit on 27 December 1946; that is to say, at a period of time Court No, III, Case No. 3.before the indictment had been served, and he did not even know whether he was going to be indicted or not.
He, therefore, could not know whether this statement was expected from him as a defendant or as a witness. I therefore move that this document is not admissible.
THE PRESIDENT: That objection is not well taken. The exhibit is offered as a part of the cross-examination of the witness who is on the stand. The exhibit is received. Number 581 is also received.
BY MR. WOOLEYHAN:
Q Your counsel, Mr, Oeschey, has offered in evidence here a letter, apparently written by you to your brother on the 29th of August 1942. That has been accepted as Oeschey Exhibit Number 9. Now, in the middle of 1942 in this letter to your brother you start discussing the justice administration in general; and I am quoting briefly from the middle of that letter when you say the following:
"Now, it is an absurdity to tell the judge in an individual case which is subject to his decision how he has to decide. Such a system would make the judge superfluous. Such things have now come to pass. Naturally, it was not done in an open manner; but even the most camouflaged form could not hide the fact that a directive was to be given. Thereby the office of judge is naturally abolished, and the proceedings in a trial become a farce. I will not discuss who bears the guilt of such a development."
Now, Mr. Oeschey, at the time you wrote that to your brother, did you think that that constituted a crime under the severe war-time laws? For instance, did you think that was a malicious utterance, or did you think that undermined your brother's morale or will to resist?
A Whether my utterances undermined the fighting morale--I certainly did not think so at all. They were not any such thing.
Q Did you think they constituted the lesser offense of malicious Court No. III, Case No. 3.utterances, for instance?
A No, for the reason that I said this to my brother by whom I am understood and who is understood by me very well.
Q You mean there was something in this language that doesn't meet the eye that would be understood by your brother but not by the casual reader? Is that what you mean?
A No, I don't wish to say that at all. The sentences are quite clear and are understandable by anybody. I did not wish to have anything read between the lines, as it were.
Q Now, what do you think that Minister of Justice Thierack would have done to you if he had found out that you had arrived at the solemn conclusion that the trial of a case in Germany from that time on was a farce, as you so clearly state here? Was it a farce?
A I was told the interrogation was a farce. I don't think I said that.
Q You said farce. Now, if we don't object to the defense's translations, I don't see why you should. In any event, it says farce here.
THE PRESIDENT: May I ask what exhibit that was?
MR. WOOLEYHAN: Exhibit Number 9, your Honor.
A That trial was a farce if the judge was given a directive on which he acted. That, of course, in a case of a trial is a farce, certainly, and not a proper trial.
Q Right you are; and in that circumstance you say it would be a farce; and in your letter you say that that circumstance has come to pass. Now, the letter says that, Mr. Oeschey. What do you think Minister Thierack or Hitler himself would have done to you if they found out that you said that?
A I would have advocated the same point of view towards those. They could have done what they liked. I don't know what they would have done.
Court No. III, Case No. 3.
THE PRESIDENT: I think, Counsel, that that is what might be called a rhetorical question directed to the bench, and you needn't insist on it.
MR, WOOLEYHAN: All right, your Honor, I'm sorry.
Q How did you sent this letter to your brother? Through the mail?
A Yes, by the mail.
Q Did you type it yourself or did you dictate it to somebody?
A I wrote that letter with my own hand.
Q With your own hand? Well, the original is typewritten. How do you account for that?
A I had a typewriter.
Q You wrote it in your own hand on the typewriter?
A Quite.
Q You type, Mr. Oeschey.
A Yes.
Q You type frequently?
A I wrote many things on my typewriter but only with two fingers.
Q You did that in the office, did you?
AAt home.
Q Oh, at home?
A I did not write in the office.
Q In any event, there's no doubt at all that you wrote this letter to your brother in August of 1942, and it says substantially what we say here? There's no doubt about that, is there?
A Yes, quite.
Q Now, tell me this. I'm taking this merely as an example. I could choose many, but I'm taking one. In the case of Strobel we have heard at great length what the defendant Strobel said about Hitler, Goering, and other people. He had the misfortune to say that aloud; he didn't write it to his brother. He was tried, and after several Court No. III, Case No. 3.exposures to the same offense, he was finally convicted and sentenced to death.
I'm asking you, in your own mind, if you can justify your decision in the Strobel case with what you wrote to your brother in August of 1942?
A I deny most energetically that what I wrote to my brother was an offense under the malicious acts law.
Q Now, in 1944, Mr. Oeschey, as will appear, I'm sure you will confirm, from a document about to be shown you, you were the presiding judge in a case wherein a Frenchman named Etcheverria was sentenced to death as a public enemy. It appears on the second page of your judgment, not the indictment, but the judgment, that the accused was a French citizen and fought as a French soldier during the late French campaign but was captured by the German army in 1940 and was made a prisoner of war. He escaped and was recaptured. In any event, he was kept in a German prisoner-of-war camp until the 1st of July 1943. In other words, he was kept in a PW came for almost three years as a French prisoner of war. At that time he was released from captivity and was allocated to the German firm Leube for employment. Ho was allocated to that firm while still a prisoner of war; and then later on that same year he was, as it says here, released from captivity but continued to work at that same factory. New, quite apart from the details of his crime, which are all spelled out in the indictment and in your opinion-they involve thefts of soap and clothing and what have you during blackouts--I'm asking you whether or not this French defendant was a prisoner of war at the time you tried him?
A No.
Q: Well, would you please explain when he ceased to become a French prisoner of war?
A: On 1 July 1943.
Q: He ceased to become a prisoner of war on 1 July. Alright. If that is the case, what was his status in the Reich after that time?
A: After 1 July 1943 it says in the opinion he ceased to be a prisoner of war, and from then onwards was a French civilian worker with the Leubs plant until 17 December 1943.
Q: Tell me this, Mr. Oeschey, do you remember when it was that the French campaign of hostilities ended and Hitler went to Paris and had his picture taken in the Versailles forest, or wherever it was? Do you remember that? What year was that?
A: June, 1940.
Q: June 1940, and then so far as the German Reich was concerned you were not at war with France any longer, were you?
A: There was an armistice.
Q: Now tell me at the time of an armistice, prisoners of war are held how long thereafter under the rules of ground warfare?
A: I can't tell you that offhand. I am afraid I don't know these regulations.
Q: Well, I am asking you why it was that the defendant in this case was imprisoned in Germany for over three years after the end of the war with France, of which he was a citizen?
A: He was a prisoner of war.
Q: Yes. I say, and how could he be a prisoner of war over three years after the war was over?
A: Well, I don't think that the state of war with France was ever suspended. As far as I know, a prisoner of war -- French prisoners of war -- were released only in certain batches, not all of them.
Q: Well, taking your own statement that the state of war between Germany and France was never actually suspended, was it suspended on 1 July 1943, the date that this Frenchman was released from the PW prison?
A: I don't think so.
Q: Then if that is the case, then he was a prisoner of war just, the same after he was released as he was while he was there, wasn't he?
A: No. Any belligerant power can release a prisoner of war or keep him.
Q: And it was perfectly clear to you that you had jurisdiction over this man as a civilian; is that your position?
A: Yes, I did not regard Etcheverria as anything else than a civilian, because otherwise I would not have been competent.
Q: Well, Etcheverria had been a prisoner of war in the Reich for over three years after he was released. As appears from your opinion, he committed a number of thefts involving clothing and soap and other things. For that offense, which had the misfortune to be committed during the blackout, you sentenced him to death. I am asking you how long you think that Frenchman had gone without any soap or clothing?
THE PRESIDENT: You needn't answer that.
MR. WOOLEYHAN: The Prosecution offers as Exh. 582 Document NG 990, which is the Etcheverria indictment and decision.
THE PRESIDENT: The exhibit is received.
Q: How were your relations with your Gauleiter, Mr. Oeschey, in a word? Were they intimate or were they remote?
A: My relations with Holtz were not intimate. They were essentially official relations.
Q: He was the supreme Nazi Party authority in the entire Gau Franconia, was he not?
A: Yes.
Q: I show you a letter. Would you please describe that paper you hold in your hand and read it, please?
A: It is probably a teletype letter by the Gauleitung Franconia in Nurnberg, of 21 April 1943. It is addressed to the Minister of Justice, Party Member Dr. Thierack at Berlin. It is signed by Karl Holz, Deputy Gauleiter.
Q: It is not very long, Mr. Oeschey, and it is very interesting, I think. Would you please read it?
A: Filling of the position of the Senate President at the Court of Appeal, Nurnberg. With the now imminent appointment of the Senate President Party Member Dr. Emmert to the position of President of the Court of Appeal in Nurnberg, the position of a Senate President becomes vacant at this court. I place greatest value that this position be filled with a reliable National Socialist who has my complete confidence. In addition to that, my special wish is that this newly appointed Senate President be appointed as Chief of Personnel Matters to the President of the Court of Appeal, Nurnberg, inasmuch as I am interested in obtaining finally an unharmed and upright cooperation with the Party in that sphere which so far has been lacking. Especially the personnel Referent is the most responsible field in the Justice Administration and therefore should be entrusted in the hands of a justice official of a corresponding higher rank who supports the Party without reservation.