A. I do not know of any opinion of the party concerning this idea, this term, this concept.
Q. No, I am not asking that. I am asking you if when a Judge had to decide what was required by the sound sentiment of the people, he did not consider the Nazi party idealogy in determining that question?
A. No.
Q. You don't think so, all right?
A. No, quite so.
DR. SCHUBERT: May the witness withdraw.
THE PRESIDENT: Yes, he may be excused. Call your next witness:
DR. SCHUBERT: My next witness is Hermann Markl.
BY JUDGE HARING:
You will hold up your right hand and repeat after me the following oath:
I swear by God the Almighty and Omniscient that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
You may be seated DIRECT EXAMINATION HERMANN MARKL BY DR. SCHUBERT:
Q. Witness, please tell the court your name and tell the Court what your profession is?
A. Hermann Markl, public prosecutor, retired, 39 years of age, married, residing at Argelsrieth, post-office Gilching.
Q. Witness, did you ever belong to a Nazi party organization or an associate organization?
A. I belonged to the Nazi party from 1 May 1935 until the end; I belonged to the SA until the 1st of April 1935.
I had been in the SA from February 1934 and from the 12th of August 1933 I had been a condidate for the SA. I belonged to the NSV from the 1st of August 1935; to the NS Lawyer's League I belonged since the 25 of July 1933; to the Reich Air Protective League I belonged since the 1st of April 1937, and to the Reich Colonial League since the 1st of September, 1937, to the SD since 1942 I occasionally gave legal information of a general nature.
Q. For how long did you work with the Prosecution at Nurnberg and in particular with the prosecution at the Special Court?
A. I worked with the Prosecution at Nurnberg since the 1st of April 1935 until the end. I was discharged after the end of the war. At the Special Court in Nurnberg I worked as a Public Prosecutor since approximately June 1939.
Q. During the time when you were in Nurnberg were you ever promoted?
A. No, I wasn't.
Q. Can you tell us why during that comparatively long time you were never promoted?
A. I passed my examination with a good note and I think I did well in my work. I have means of proof that the reason I was not promoted was the fact that I was a Roman Catholic. I adhered to my faith and, therefore, I was considered tied to the Church and not reliable politically speaking.
Q. How long have you known the defendant, Oeschey?
A. I have known him since he worked with the Special Court at Nurnberg and I believe that is since 1940.
Q. Did you work as a Prosecutor when Oeschey was the presiding Judge?
A. Yes, I did.
Q. Did you find that Oeschey at the opening of a trial had prejudice against the defendant?
A. No.
Q. Did you ever hear Oeschey say: We will put your head before your feet?
A. No.
Q. Was Oeschey well prepared for trial when he arrived?
A. I always felt that Oeschey completely mastered the material.
Q. Did he at the trial go into the facts thoroughly?
A. Yes, he did.
Q. Did he give consideration to both elements, both in favor and against the defendants?
A. Yes, certainly, he examined the facts of the case exhaustively in every direction and evaluated them accordingly.
Q. Did this Special Court when Oeschey was the presiding Judge decide motions for evidence by the defense from an objective view point?
A. Yes.
Q. Were such motions for evidence frequently rejected as irrelevant?
A. Yes, that is right. That happened very frequently in German procedure before the regular courts, too, and that is due to the fact that in German procedure, the Judge, as well as the Prosecutor, at every phase of the proceeding is under an official obligation to examine whether the evidence If in favor of or against the defendant must be produced. If the Court or the Public Prosecutor thinks it necessary to produce further evidence, such evidence was procured officially, and, therefore, the defense only had a relatively small scope on its part to procure additional evidence and to make the necessary motions for such evidence. If such motions were relevant they were allowed, but as a rule they were not relevant and then they were rejected.
During all of the years of my practice before ordinary courts I saw that happen. It was not different with Oeschey.
Q. As a Public Prosecutor did you often discuss masters with the Special Court concerning the sentences for which you were going to ask?
A. Yes, I did.
Q. That was done frequently?
A. That was done within the framework of the instructions which had been issued to us.
Q. During such discussions did you feel that Oeschey at that moment had already completed his verdict?
A. I should be sorry for a Judge who when all the evidence has been produced has not yet formed his opinion of the outcome of the trial. At that moment just as the Puolic Prosecutor and the Defense Counsel, the Judge must have formed his opinion. It is merely his task, on the oasis of the statements of the Public Prosecutor of the Defense Counsel and of the defendant, to discuss with his associate Judges that view for it's correctness and so to arrive at a final judgment. Oeschey was a Judge who was quick to make decisions in that way. Certainly he had already formed his opinion.
THE PRESIDENT: We will recess until fifteen minutes from now.
(A short recess was taken.)
THE MARSHAL: The persons in the Courtroom will be seated.
The Tribunal is again in session.
THE PRESIDENT: You may proceed.
DIRECT EXAMINATION BY DR. SCHUBERT:
Q. Witness, did you finish answering the question about the discussions between judges and prosecutors?
A. I only wanted to say that in my opinion, Oeschey did not have a prejudiced opinion out an opinion, a general opinion, when he entered the deliberation. That is in my opinion now it was, aside from very clear cases where there couldn't be any doubt about the punishment.
Q. Witness, I ask you again to make a short pause before answering my question after I put the question. In these conferences, was Oeschey open to different opinions on the part of his associate judges or the prosecutors?
A. Yes, though he was able to state his opinion quite clearly.
Q. Is it known to you whether Oeschey had tried once to exert any influence on the prosecution in order to bring about an unjust sentence?
A. No.
Q. Was there any sentence pronounced by Oeschey which you had heard, or did you observe any violation of the rules of procedure which you would call defeating the purposes of the law?
A. No.
Q. Witness, according to the decree, the publication of the so-called modifying decree of the year 1941, how were the cases of so-called habitual criminals treated by the prosecution?
A. There was a general directive for the district or rather for the District Nurnberg of the prosecution according to which all prosecutors and also the Senior Prosecutors from out of town had to submit all cases to the Special Court where they considered paragraph 1 of the amended law applicable. Accordingly, always together with the inquiry as to whether that amended law was applicable or not, the files were submitted to Department 1 of the Prosecution-Nurnberg. Then the case was handled in a way that the referrent made the remark on the file that the law was possibly applicable, that he took over the case, or that he stated that it was not applicable and returned the files of the case.
Q. If I understood you correctly then, the way it was handled was that the prosecution, after the publication of the amended law "Aenderungsgesetz," if he had filed an indictment in cases of habitual criminals before the Special Court always had to expect a death penalty?
A. Yes.
Q. Witness, quite briefly, I want to discuss a few individual cases with you. These cases always ended in - death sentence. The prosecution in many of these cases already expected death sentences. Can you briefly explain what reasons were given at that time for the severity of the penalty?
A. We expected already-the wartime penal legislation already provided extremely severe penalties in order to reduce the amount of criminality which according to experience increased in wartime.
THE PRESIDENT: That general matter such as he is now referring to has been repeatedly covered by many witnesses, the general circumstances which in the opinion of the authorities required severity have been exhaustively presented.
BY DR. SCHUBERT:
Q. Witness, before I discuss these individual cases with you, could you please tell me whether you had an opportunity before you were heard here now to refresh your memory by looking through the court files?
A. Yes.
Q. Were you prosecutor in the case of Jankovic?
A. Yes.
Q. In that case, did the prosecution make a motion for the appointment of a defense counsel?
A. No, the referrent in that case did not request that a defense counsel be appointed.
Q. Why wasn't that done?
A. According to the legal situation, one did not have to do it. One could refrain from doing so if the defendant confessed, if the legal circumstances were clear and if it was not difficult -- if the defense did not raise any objection.
Q. Were these requirements given in the case Jankovic?
A. Jankovic was a man who had committed burglary in cellars. He confessed, the act he had committed was considered a very severe case. At that time, burglaries committed in cellars were considered the same as looting because they were directed against the stock of the property of the nation which the people in order to save it had hidden in cellars.
Q. In the case Jankovic, did the prosecution expect to demand the death sentence?
A. I have found out that there is a notation in the file "it is intended to demand the death sentence."
Q. Now I come to the case Kaminska-Wdowen. Can you tell us what the demand was that the prosecution wanted to make with regard to the penalty?
A. This must come from the fact that twice according to the files the motion was made that the two defendants should have defense counsel appointed. I assume that the prosecution in this case also expected the death sentence for both defendants.
Q. Witness, according to what provision was Kaminska indicted?
A. The Kaminska-
Q. You don't have to discuss the details.
A. According to Article I of the decree against Poles for having attacked a member of the German Armed Forces.
Q. And Wdowen?
A. Wdowen? Wdowen was indicted for abetting and for a crime according to Article IV of the Public Enemy Decree.
Q. Could you find out whether the sentence was pronounced based on these provisions?
A. I have found out from a study of the files that Kaminska was sentenced on the basis of the decree against violent criminals and Wdowen on the basis of Article IV of the Public Enemy Decree. The case against -
THE PRESIDENT: The record in the Kaminska case in the decree is in evidence, isn't it?
DR. SCHUBERT: I don't know whether all of it has been submitted in evidence.
THE PRESIDENT: If it is, we can read it just as well as the witness, and have read it.
BY DR. SCHUBERT:
Q. If I understood you correctly, therefore, witness, kaminska and Wdowen were not sentenced on the basis of the penal decree against Poles?
A. No.
Q. Witness, do you happen to remember a case Kwasnik? The case of a Pole who had committed a case of abortion with
THE PRESIDENT: Counsel, if there is any portion of the decree in the case to which you just referred which is not in evidence and which this witness is testifying concerning, then we want to have it in evidence. There is no reason for taking verbal testimony concerning a matter which can be conclusively determined by the record.
DR. SCHUBERT: May it please the Tribunal, I apologize. I have come to another case already. I have passed on to another case, a case which sounds similar. It is a case Kwasnik.
BY DR. SCHUBERT:
Q. I ask you, witness, whether you know the case?
A. Yes.
Q. Do you happen to know whether in that case Oeschey was presiding judge?
A. I could not say that.
Q. Do you know anything about the case Guentner?
A. Yes, It was the case of a woman who was indicted for stealing from the wool collection or the winter clothes collection.
Q. All right, witness. Can you tell me with regard to that case whether the fact that woman had certain merits for the NSDAP, for the party, whether that fact played an important role in the trial?
A. From the purely human point of view, the fact was essential that it was a mother of many children. I don't know how many. Her work for the party did not play an essential part. It is true that they were mentioned in giving the reasons for the sentence pronounced.
THE PRESIDENT: Is the sentence in evidence?
DR. SCHUBERT: Not yet.
THE PRESIDENT: It is not?
DR. SCHUBERT: Not yet, your Honors.
THE PRESIDENT: It is very much preferable that we see these sentences rather than hear verbal testimony about what was said.
BY DR. SCHUBERT:
Q A last question, witness. Did Oeschoy help you personally as an official of the party at any one time?
A Well, in 1944, I had been denounced with the Gau leadership office of Franconia by a servant and her mother for my strictly catholic attitude. I was accused of having forced the maid to go to church on Sundays. If Oeschoy hadn't helped me at that time, I wouldn't have obtained any knowledge of the specific contents of the charges raised against me. Upon my request, Oeschoy found out about those facts and informed me about them in a letter.
That only enabled me to state my point of view concerning that denunciation. I turned over my statements to Oeschey who forwarded them to the office of the Gauleiter, apparently supporting them because later and again through Oeschoy I was informed that the case had been straightened out and that I should be without any concern about it.
Q Thank you, witness. That brings me to the end.
DR. KOESSL: I ask to be permitted to put a few questions.
BY DR. KOESSL:
Q Witness, do you remember the case of the Pole Serafin who as violent criminal was sentenced to death? The case was mentioned in Exhibit 556 of the prosecution.
A I remember the case. The Pole with a razor inflicted serious -at least dangerous injuried to a German girl, injuries on the throat.
Q Under the very same circumstances, would a German have been sentenced to death?
A In my opinion, yes. It was a clear case of a violent crime, such as at that time would have been punished by the death sentence against anybody.
Q Thank you. I have no further questions.
THE PRESIDENT: Are there any further questions? It appears that there is not. You may cross-examine.
MR. WOLLEYHAN: No questions, your Honor.
THE PRESIDENT: The witness is excused. Call you next witness.
HEINZ HOFFMANN, a witness, took tho stand and testified as follows:
BY THE PRESIDENT:
Q Hold up your right hand and repeat after me tho following oath.
I swear by God, the Almighty and Omniscient, that I will speak tho pure truth and will withhold and add nothing.
(The witness repeated the oath.)
THE PRESIDENT: You may be seated.
BY DR. SCHUBERT:
Q Witness, please tell the Court your full name and your profession?
A Dr. Heinz Hoffmann, District Court Counselor in retirement.
Q Dr. Hoffmann, were you a member of the NSDAP?
A Yes, I was a member of the NSDAP since the first May 1937.
Q Did you hold an office in the party?
A In the party I did net hold an office. I was legal adviser with the Hitler Youth from 1941 until 1945.
Q Since when were you a judge?
A I was a judge since 1933.
Q And when were you promoted to the position of Land Gerichtsrat, District Court Counselor?
A On the 1st May 1938 in Nurnberg.
Q Were you promoted once more?
A No, I was not promoted since. Once I applied for a promotion but that was not granted.
Q What was your work in the administration of justice in Nurnberg?
A First I was associate judge with the second penal chamber; in 1940 I was first temporarily and then permanently after a few months, I became associate judge with the Special Court.
Q Since when do you know the defendant Oeschey?
A I know the defendant Oeschey since the beginning of my work with this Special Court, first as an associate judge, then as deputy presiding judge, and later as presiding judge.
Q What can you say about Oeschey's manner of conducting trial?
A Oeschey's manner of conducting trial was frequently unsatisfactory. He had sometimes a clumsy way of, and a rude way of handling defendants and occasionally witnesses. He sometimes, if he was irritated, become aggressive in a disagreeable way. For instance, if a defendant tenaciously continued to deny facts or if his act was considered particularly abominable, he lose his self-control.
Q Witness, these occasional excesses on the part of Oeschey -- did they have an unfavorable result on the way the trial material was handled?
A No, that was not the case. In spite of that Oeschey always tried, made efforts to present and to establish the facts in the case as exhaustively and clearly as possible. He interrogated the witnesses in great detail and permitted them to say everything which was necessary for the clarification of the case.
Q What was the relation between Oeschey and the associate judges of the Special Court?
A Oeschey had good relations with the associate judges as colleagues, though from the human point of view one could not get very close to him. He tolerated the opinions of others and did not try to force his own opinion on them. Of course, he maintained a certain imposing attitude which is natural with the presiding judge, natural with the presiding judge of any court.
Q Did Oeschey ever use his function in the party to intimidate his associate judges?
A No, he did not do that.
MR. WOOLEYHAN: Objection, your Honor. It is not common to answer that question.
THE PRESIDENT: Will you repeat the question, please?
BY DR. SCHUBERT:
Q Did Oeschey ever use his function in the party--make use of his function in the party to intimidate his associate judges in a particular way?
THE PRESIDENT: The witness may answer.
A No, he did not do that.
Q Do you know of a case where an associate judge under Oeschey was reproached for his opinion dissenting from the opinion of Oeschey's and had disadvantages as a result?
A No, I do not know of any such case.
Q Did the associate judge Gross frequently utter an opinion dissenting from Oeschey's opinion in deliberations?
A Yes, he did so.
Q Go ahead.
A Oeschey permitted him to do so, but time and again there were differences of opinion between them.
Q Witness, did Oeschey ever pronounce a sentence where not at least two members of the Court had voted for it?
A No. he did not do so.
Q Did you witness any cases of Poles under Oeschey?
A I cannot remember that in detail.
Q Therefore, you are not in a position to tell us whether Oeschey was presiding or a case against a Pole by the name of Kwasnik, a case of abortion?
A No, I could not say that because I had nothing to do with that case. I once assumed that it must have been Oeschey purely on account of the time when that trial is supposed to have occurred but in the meantime I was persuaded that that was a mistake on my part.
Court No. III, Case No. 3.
Q Did Oeschey always insist that the most severe sentence should be pronounced?
A No, he did not do so. I even remember in individual cases where he gave cause for the pronouncement of more lenient sentences than demanded by the Prosecution.
Q Could you give us any examples for that?
A There was a case where ration cards had been stolen. I think it was the case Poebel and Bittner. At that time the Prosecution had received the directive to demand as sentence against the main defendant for reasons of the severity of the crime, the death sentence. But because that main defendant, the woman defendant, was young and had hardly any previous convictions, Oeschey refrained from pronouncing the death sentence. Another case concerned two women also. The names were Modell. In that case after an airraid, two young women had been roving around in the country and had committed fraud referring to the damage that they had incurred by the airraid. In this case the Prosecution also demanded the death sentence against the defendant, but it was not pronounced because the previous convictions of these defendants were few, and they had acted immediately under the impression of that serious airraid, and one assumed that there was a possibility for improvement .
Q Witness, did you take part in a trial and witness and take part in the sentence of a case which became known under the name of Freicorps Plaerrer?
A Yes, I took part in that care.
Q Can you remember how many defendants were sentenced to death?
AAs far as I can remember today, two defendants, the defendant Kurz and the defendant Mandiuk, as main defendants were sentenced to death. Kurz was the leader of that gang, a serious, severe criminal with the criminal name "Three Finger Jack." Mandiuk was an Eastern laborer who played an important part in the major crimes.
Court No. III, Case No. 3.
Q Could you also tell us on what acts the sentence was based?
A The main crimes committed by these defendants were cases of blackmail and beatings, which they had committed under the cover of darkness in Nuremberg on foreign workers. They took these people to the side under the pretense that they could trade cigarettes against food coupons. They they pretended that they were policemen or threatened them with beatings in order to obtain the cigarettes which they wanted to get. The case brought unrest into the population and it appeared necessary at that time to be very severe.
Q Do you still know on the basis of what provisions of the Penal Code these defendants were sentenced?
A Yes, I still remember that. The provisions about blackmail with robbery, Articles 250 and 255 of the Penal Code.
Q Did these paragraphs already provide for very serious penalties already before 1939?
A Yes, these provisions always made a severe penalty mandatory, that is, a minimum of five years in the penitentiary, one of the most serious provisions for penalty which the law knows.
Q And on the basis of what provisions was the death sentence pronounced?
A The death sentences were pronounced on the basis of Articles 2 and 4 of the Public Enemy Decree, because an act of such seriousness as blackmail and burglary committed under the cover of darkness necessarily was a very serious case, and therefore according to the law had to be punished by death.
Q Witness, in that case it was of importance that a raid had been committed on the Hitler Youth Home.
AAs far as the raid on the Hitler Youth Home was concerned, there were some other defendants who had taken part in it, different defendants than those who took part in the other robberies. There were primarily a large number of youths who took part in order to do some fighting.
Court No. III Case No. 3.
That part of the crime was what had started the whole case. But it was not the focal point of the case. Most of those who had taken part in the raid on the Hitler Youth Home were tried before the penal chamber or before the juvenile court.
DR. SCHUBERT: Thank you, witness. I have concluded my examination.
JUDGE HARDING: Witness, do you know of any case in which the two associate judges came to a verdict contrary to that favored by Oeschey when he was President of the Court?
THE WITNESS: I cannot remember any specific case of that nature. However, I know that Oeschey when he was faced with arguments from one or the other associate judge was quite open for these arguments. One could convince, one could persuade him, and one could even change his opinion. Yes, now I remember one case, especially in the case of that gang Plaerrer. There were a few juveniles before the Special Court, one or two. And I succeeded with the agreement of the other associate judge in persuading Oeschey that that young fellow did not belong in the penitentiary but in a juvenile prison. And indeed he was sentenced to a penalty provided in the juvenile law, namely, an educational penalty.
JUDGE HARDING: What I asked you was whether you knew of any case in which Oeschey as presiding judge was outvoted on the verdict by the associate judges?
THE WITNESS: No, I do not remember any such case.
JUDGE HARDING: Do you know of any proceedings in connection with the trial in which the associate judges outvoted Oeschey as President of the Court?
THE WITNESS: No, I do not know of any such case.
THE PRESIDENT: Is there any other direct examination?
DR. KOESSEL (For the Defendant Rothaug): May it please the Court, the Prosecution has submitted an affidavit from this witness as Exh. 556. I ask to be permitted to put a few questions in cross examination to Court No. III, Case No. 3.this witness.
CROSS EXAMINATION BY DR. KOESSEL:
Q Witness, on the basis of what points of view was Pirnak sentenced to death? That is the case which you mentioned in your Exh. 556.
A Pirnak was sentenced for sabotage.
Q Do you still know with certainty that Rothaug was presiding judge in that case in the main trial?
A I believe that I remember that, but with absolute certainty of course, I could no longer say that today.
Q In the case Murzyn were there any reasons to -- could one find out in that case how Murzyn obtained the primers?
A Murzyn had stated that he had found the primers. But it was not clear, it could not be found out where he really got them from.
THE PRESIDENT: The next question.
BY DR. KOESSEL:
Q On what assumption did the judges base themselves, that is, the majority of the judges?
A In the case Murzyn it was assumed that he had stolen the primers, because any other possibility to obtain them did not exist at that time, because even if he had found them, he only could have found them at a place of work and would have had to turn them in.
Q. The death sentence against Pavula and the four codefendants, was that based on the penal decree against Poles?
A. No. All the defendants in that case were sentenced according to the penal code, the Public Enemy Decree, and the Decree Concerning Looting.
THE PRESIDENT: What was the name of the first defendant in that case?
DR. KOESSL: Pavula. I will spell it. P-a-v-u-l-a-, and four codefendats. It is on Page 9 of Exhibit 556.
THE PRESIDENT: The decree is in evidence in that case?
DR. KOESSL: No, the verdict is not submitted in evidence.
BY DR. KOESSL:
Q. Can you tell us on what individual facts the legal reasons for the verdict were based?
A. No, I could no longer say that.
Q. Can you tell with absolute certainty that Rothaug was presiding judge in the main trial?
A. No, I can't do that. I think that that was the case, but I may be mistaken, of course.
Q. In the case of Salisch, under the same circumstances having committed the same crime would a German have been sentenced to death?
A. Salisch was the man--
THE PRESIDENT: You can answer that question yes or me, if you know, which probably do not.
BY DR. KOESSL:
Q. That was a case of looting at the office of the president of the police.
A. I can answer that question with " yes".
Q. Did you have anything to do with the case Serafin? Did you have anything to do with the case Serafin? He was a Pole who injured a farmer's daughter with a razor.
A. No I had nothing to do with that case
Q. On what do you base your description of that case in Exh. 556 them?
A. I was shown a report in the press about that case.
Q. In the case Wendel did the second trial result in establishing the facts which according to the Reich Supreme Court constituted a particularly serious case?
A. Yes.
Q. The sentence in the case Schaegerer, was that in accordance with the sentence and the practice of the Reich Supreme Court?
A. Yes.
Q. Also as gar as the application of Paragraph 51, Section 2 was concerned?
A. Yes.
Q. In the case Wild were you a Prosecutor or an associate judge ?
A. No.
Q. Do you remember whether in the case Wild a motion for reopening of the trial was made?
A. Yes. That motion was made.
Q. Did the penal chaber admit that the case be reopened in the regular proceedings?
A. No. the reopening was not granted.
Q. Was Rothaug the judge when the reopening was refused?
A.. No; he had nothing to do with it.
Q. In the case Kreisle were you a judge?
A. No.
Q. Did you read the opinion?
A. No.
Q. On what do you base your statements about the case Kreisle in Exh. 556?
A. Again on a report in the press which was shown to me.