In order to use an often used catch word which is not a catch word here, however - I would say no disunion of thought. The legislator threatens him who plunders, that is the plunderer with a good reason with the death penalty. He does not try to dissect the type of the plunderer, to divide it up into characteristics of the facts of the case, each one of which would contain in itself the danger of letting the plunderer escape his just punishment; characteristics which in their entirety depict the plunderer just as little as the assembled parts of a corpse depict a live human being. One should not view the mighty hewn stones of war time penal law with instruments designed for viewing precisely chiselled miniature work. One should first of all not disregard the National Socialist conception of life.
THE PRESIDENT: I thought that counsel was going to introduce the documents without extensive reading of them. The Tribunal - as I have said many times before - gets a great deal more benefit out of its own reading of the documents than we do out of hearing it read in the courtroom.
DR. KOESSL: I, therefore, offer Rothaug Document No. 77 as Exhibit No. 3
THE PRESIDENT: The exhibit is received.
DR. KOESSL: The next document I want to introduce is Rothaug Document No. 175, and will become Exhibit No. 4. This exhibit is an appeal by Reich Minister Dr. Guertner for the new year 1940. I only want to quote one sentence from it: "The Administration of Justice has to contribute its part to the fortification of the German will to resist and to the merciless extermination of those who try to weaken this will."
I offer this document as Rothaug Exhibit No. 4.
THE PRESIDENT: The exhibit is received.
Court No. III, Case No. III.
DR. KOESSL: As Exhibit No. 5, I offer Rothaug document No. 39. This is an article about criminality in the German Reich during the first year of the war in 1939. I offer this document as Exhibit No. 5.
THE PRESIDENT: Just a moment; we haven't found that yet.
DR. KOESSL: I beg your pardon. The document was Rothaug document No. 39, on page 25 in the English document book.
THE PRESIDENT: Exhibit 5 is received.
DR. KOESSL: The next document I wish to offer is an article from the journal "Deutsche Justiz" of the 15th of December 1939. This article is entitled, "Thoughts about Penal War Law and the Decree regarding Dangerous Criminals." It is by the then Undersecretary in the Ministry of Justice, Dr. Freisler. I offer this document No. 78 as Exhibit No. 6.
THE PRESIDENT: It will be received.
DR. KOESSL: The next document I offer is Rothaug document No. 16, and I offer it as Exhibit No. 7. This document seems to me to be especially important. I announced, in my opening statement, that from the jurisdiction of the Reich Supreme Court and from the literature of the time before and after 1933, I would take out and emphasize principles which demonstrate the substantive legal situation, and that I would read them in a brief form. This exhibit is supposed to demonstrate simultaneously the legal position of the German Judge under the law, and it is also supposed to show what possibilities were available to the judge if he acted in accordance with his oath of office.
This summarized compilation is taken out of the standard work on German criminal law, the so-called Leipzig commentary on the Reich Penal Code. The compilation begins with the beginning of the political change in 1935, and covers the entire criminal law thinking as it was developed in Reich jurisdiction.
I request the Tribunal to pay particular attention to this article; in accordance with the request of the Tribunal I shall not read any excerpts from the document.
THE PRESIDENT: The Tribunal will give it careful examination and consideration in accordance with your request.
DR. KOESSL: I offer Rothaug document No. 16 as Exhibit No. 7.
The Next document which I offer is Rothaug document No. 5, which I offer as Exhibit No. 8. It is an article from "Das Deutsche Recht", and it is entitled, "Importance of the Reich Supreme Court in the field of jurisdiction in criminal cases." The article concerns itself with the significance of the Reich Supreme Court and also speaks about the nullity plea and the extraordinary objection. I offer this document as Exhibit No. 8.
THE PRESIDENT: The Exhibit is received.
DR. KOESSL: The next document which I offer is Rothaug document No. 46, and I offer it as Exhibit No. 9. This document is a treatise about the Decree against Public Enemies of 5 September. The document as such speaks for itself and therefore I shall not go into any details now.
THE PRESIDENT: The exhibit is received.
Dr. Koessl, may I ask you a question which has been in my mind for some time? Some of the exhibits refer to the Law for the Protection of the People. Can you tell me which of the laws that was by date, do you recall? The document refers to it only by that description. If you don't remember now, I shall be glad to be advised later.
DR. KOESSL: Yes, I shall look into that immediately.
There are several laws for the protection of the German people, for example, for the protection of German Bolld and honor. I just wanted to find out which particular one you were referring to, and I shall inform you about it.
THE PRESIDENT: It is referred to in that manner in document book III-A Supplement, I believe, in the reports, and I was unable to tell what law was meant.
DR. KOESSL: I shall immediately find out about it and let you know.
THE PRESIDENT: No Hurry.
DR. KOESSL: As Rothaug Exhibit No. 10, I offer Rothaug document No. 32. This document is a judgment by the Reich Supreme Court, and it concerns the application of Paragraph 2 of the Decree Against Public Enemies. From this document I would like to briefly read the following findings of the Reich Supreme Court. Only one sentence is concerned;
Referring to the judging of this case by the Special Court, the Reich Supreme Court says:
"The Special Court in so doing is overlooking the fact that the nullity plea, correctly, states that the issue is not whether the robbery which the defendant committed is an especially serious robbery but whether an especially serious case of a crime committed during air attacks, under Article 2 of the Decree Against public Enemies, exists."
This finding of the Reich Supreme Court is important in connection with some cases which are of importance in the case of the defendant Rothaug. When I deal with these cases I shall refer back to this document.
I offer this document, Rothaug No. 32, as Exhibit No. 10.
TEE PRESIDENT: The Exhibit is received.
DR. KOESSL: The next exhibit I offer is Rothaug document No. 44 as Exhibit 11. This document also is a decision by the Reich Supreme Court, regarding Article 4 of the Decree Against Public Enemies, and it comments on the concept of exploiting war-time conditions.
I offer this document Rothaug No. 44 as Rothaug Exhibit No. 11.
THE PRESIDENT: The exhibit is received.
DR. KOESSL: Rothaug document No. 33 also is concerned with Article 4 of the Decree Against Public Enemies, and I offer it as Exhibit 12.
THE PRESIDENT: The exhibit is received.
DR. KOESSL: This document too also speaks for itself.
The next document, Rothaug No. 25, I offer as Exhibit No. 13. Here too we have a decision of the Reich Supreme Court, and this decision is concerned with Articles 2 and 4 of the Decree Against Public Enemies. I offer it as Exhibit No. 13.
THE PRESIDENT: That was document 25?
DR. KOESSL: This is Rothaug document No. 25, and I offer it as Exhibit 13.
THE PRESIDENT: It will be necessary for us to take our recess at this time for 15 minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. KOESSL: May I continue to present my documents? The next document which I wish to introduce is Rothaug Document No. 23. The Exhibit No. is 14. This Exhibit also contains a decision by the Supreme Reich Court. It discusses the significance of the offenders person in violation of Paragraph 2 of the Public Enemy Law. The page in the English Book is 96.
The next document which I wish to offer is Rothaug Document No. 7. The Exhibit Number is No. 15. This document also contains a decision by the Supreme Reich Court. It deals with the facts of the case covered by Article 92 of the Reich Penal Code 132 and it gives the opinion of the Supreme Reich Court about offenders of the Public Enemy Law. I am offering Rothaug Document No. 17 as Rothaug Exhibit No. 15.
THE PRESIDENT: Exhibits 13, 14 and 15 are received.
DR. KOESSL: As my next document I offer Rothaug Document No. 177. The Exhibit Number is No. 16.
THE PRESIDENT: Just a moment. We have not been able to find that yet.
DR. KOESSL: I wanted to find out what page it is. In the German text it is 67 and in the English -
THE PRESIDENT: I think it is not in the book.
DR. KOESSL: In the English copy which I have here the document appears on Page 101.
THE PRESIDENT: No, it is not in our book; I am sorry. We have found it on Page - - the number at the top of the page -- 94.
DR. KOESSL: Thank you, your Honor. I offer Rothaug Document 177 as Exhibit No. 16. This decision by the Supreme Reich Court deals with the aim of the law against violent criminals . I would like to read a brief extract because it is of importance for a great many decisions. It says:
"In interpreting the law one must bear in mind that the Ministerial Counsel for Reich defense issued it and that evidently when it was promulgated the intention was, at the time when many men who normally see to the maintenance of order inside Germany on account of the fact that they have been drafted to the army or for other purposes of armed defense, are no longer able to fulfill that duty. The homeland must, therefore, be particularly protected against violent criminals endangering the home front."
That idea is mentioned in many sentences passed by Rothaug.
THE PRESIDENT: I am sorry. We have not yet got your document located. We are looking for Document No. 177.
DR. KOESSL: No. 177 is, according to the copy which I have before me, on Page 97.
THE PRESIDENT: The document which is on Page 97 is listed as Document 17. Should that be corrected?
DR. KOESSL: In my document it is designated as 177. It is Document 177. There may be a printing error, your Honor, as the preceding document bears the number 17. Then the next document which I have just presented and which I offered as Exhibit 16 is No. 177.
THE PRESIDENT: We will change the numbering from 17 to 177.
DR. KOESSL: Yes, 177.
THE PRESIDENT: It will be marked Exhibit 16.
DR. KOESSL: Yes, your Honor. The next document which I offer is Rothaug Document No. 47. Exhibit Number is 17. This document contains a decision on the law against violent criminals of 5 December 1939. I offer Document 47 as Exhibit No. 17.
THE PRESIDENT: The exhibit is received.
DR. KOESSL: Rothaug Document No. 38 I am offering as Exhibit No. 18. This document deals with the so-called type of the offender which was of importance for the applicability of the law against public enemies. It is an article from the Official Journal of the German Administration of Justice -- "Deutsche Justiz". I offer Rothaug Document No. 38 as Exhibit No. 18.
THE PRESIDENT: The exhibits are received. We have received all of these exhibits.
DR. KOESSL: The next document book is my Document Book I-B. The first document from Document Book I-B which I wish to offer is Rothaug Document No. 36. The Exhibit number is 19. This document contains a decision by the Supreme Reich Court about the type of the violent criminal and of the dangerous habitual criminal. I offer Document No. 36 as Exhibit No. 19.
THE PRESIDENT: The Exhibit is received.
Court No. III, Case No. 3.
DR. KOESSL: Rothaug Document No. 42 I am offering as Exhibit No. 20. This document also deals with the concept of the dangerous habitual criminal. I offer Document 42 as Exhibit No. 20.
THE PRESIDENT: The exhibit is received.
DR. KOESSL: Rothaug Document No. 18, which I offer as Exhibit No. 21, deals with a decision by the Supreme Reich Court which stated its opinion on the following questions: First of all, who is a dangerous habitual criminal within the meaning of Article I of the amended law of 4 September 1941, and, secondly, under what points of view is the question to be decided in a case when the death sentence is to be passed on a dangerous, habitual criminal under the law of September 1941 instead of the ordinary penal provisions such as protective custody which could be applied?
May I direct the attention of the Tribunal to the fact that the decisions by the so-called regular courts, that is to say, by a penal chamber, that these decisions were made by a regular court and by the Supreme Reich Court. A special court did not participate in these decisions. This might serve to illustrate the uniformity of German administration of penal law. I offer Rothaug Document No. 18 as Exhibit 21.
THE PRESIDENT: Received.
DR. KOESSL: Rothaug Document No. 10, which I offer as Exhibit No. 22, also is concerned with a decision by the Supreme Reich Court which deals with the dangerous habitual criminal. I offer Rothaug Document No. 10 as Exhibit No. 22.
THE PRESIDENT: The Exhibit is received.
DR. KOESSL: The next document which I wish to offer is Rothaug Document No. 3. The Exhibit number is No. 23. This document deals with the question as to under what conditions, the death sentence is to be pronounced in the case of a dangerous habitual criminal. I offer Rothaug Document No. 3 as Exhibit No. 23.
THE PRESIDENT: Received.
Court No. III, Case No. 3.
DP. KOESSL: With Rothaug Document No. 124, which I offer as Exhibit No. 24, by that document I am submitting excerpts from a book which appeared in 1927. This book deals with the duties of a judge, with the technique of examining and with the psychological aspects of examining a defendant. It also deals with the other tasks of the German judge under the German Penal Code. This book shows in particular to what extent all judges concerned themselves with the question in what manner the defendant should be examined and to what extent the judges concerned themselves with the question as to what extent they might be biased by having had insight into the files before the opening of the trial and how great the difficulties are when the judge is faced by a defendant who is not easily to be persuaded to make truthful statements. I submit Rothaug Document 124 as Exhibit 24.
THE PRESIDENT: Received.
DR. KOESSL: Rothaug Document No. 8, which I offer as Exhibit 25, deals with the same question. It deals with the psychological tasks of the judge during examination. This document too deals with the obstacles which the judge encounters and has to overcome while examining a defendant. I offer Rothaug Document No. 8 as Exhibit No. 25.
THE PRESIDENT: Received.
DR. KOESSL: The next document is Rothaug Document No. 9. I offer it as Exhibit No. 26. This document deals with a number of questions from the field of legal procedure during the war. This document also deals with the position of the defense counsel with the submission of evidence, with the speeding up of trials, with the reopening of trials and with innovations from the field of legal remedies, with the nullity plea and the extraordinary objection. I offer Rothaug Document No. 9 as Exhibit No. 26.
THE PRESIDENT: Have you the date of that publication?
DP. KOESSL: The date of this publication -
THE PRESIDENT: Apparently it is after 1933.
DP. KOESSL: Yes, yes; it was published after 1933 and it was Court No. III, Case No. 3.published during the war.
THE PRESIDENT: All right.
DR. KOESSL: It is the twelfth edition of "Deutsches Recht", the journal called "Deutsches Recht" - German Law.
THE PRESIDENT: The exhibit is received.
DR. KOESSL: I think it was published about 1940. At the end of the document your Honor will find a passage by the author saying that his book refers to the state of affairs on the first of September, 1942, and that, of course, makes it obvious that this article was written in 1942.
Rothaug Document No. 176 is offered as Exhibit No. 27. This document deals with the constitutional status of the extraordinary objection. It is an article which was published in January, 1940) in the periodical, "Deutsche Justiz", and only extracts are reprinted here. I offer Rothaug Document 176 as Exhibit 27.
THE PRESIDENT: Received.
DR. KOESSL: In Rothaug Document #170; which I am offering as Exhibit 28, there the opinions are stated regarding the nullity plea. In particular, the question is dealt with as to why the nullity plea is dealt with by the Chief Reich Prosecutor at the Supreme Reich Court and is not dealt with by the public prosecutor; the defendant or the defense counsel.
I offer Rothaug Document #170 as Exhibit 28.
THE PRESIDENT: Received.
DR. KOESSL: Rothaug Document #14 which I offer as Exhibit 29, deals with the position of the judge concerning the extent of punishment. I only wish to quote one or two sentences. In this decision by the Supreme Court, it says:
"In particular the judge is not authorized to exercise the right of pardon. In this respect the legal position has not changed compared to the time before 1933. The change in the concept of Law and State; which has taken place in the meantime, likewise does not release the judge; especially the judge of a criminal court; from his obligations towards the law."
I offer Rothaug Document #14 as Exhibit #29.
THE PRESIDENT: Received.
DR. KOESSL: Rothaug Document #19; which I offer as Exhibit #30, deals with the position of the presiding judge at the t rial. This decision is a basic decision decisive for a number of questions which have been breached in this proceedings here and they explain the position of the presiding judge under the German penal code. As I would have to read the whole document really I am, in effect; restricting myself to draw the attention of the Tribunal to the significance of this document.
I offer Rothaug Document #19 as Exhibit #30.
THE PRESIDENT: I'm afraid there's difficulty with the document book hero. On page 148, Document 19 appears; but it's marked; at the top of the page; as page 2 of the original. The page "which precedes it is marked page 160 and is a part of Document #53.
DR. KOESSL: Document 53 is contained in this book, but in my copy there's no 53 here.
THE PRESIDENT: This book, at the last page of Document #14 has the numbering page 146. The next page is marked page 160 and is a part; apparently; the last part; of Document 53. Page 147 is missing and page 148 is the second page of Document 19. I think there is obviously an error here.
DR. KOESSL: Pardon me, that only happened in the document book which Your Honor has. In my document book the pagination is correct and the page number is 147.
THE PRESIDENT: The book must be corrected.
DR. KOESSL: I shall see to that; Your Honor.
THE PRESIDENT: There seems to be at least two.... All of them are incorrect. All three.
DR. KOESSL: I shall see to it that the pagination is corrected.
THE PRESIDENT: You want to offer Document 19, when and if we find it, as Exhibit 30; is that right?
DR. KOESSL: I am offering Document #19 as Exhibit 30. The next document which I wish to offer is Rothaug Document #29. The exhibit number is 31. This document is a decision by the Supreme Reich Court. It also deals with the question as to the extent to which a verdict might be unjust according to paragraph 34 of the competency Ordinance of 21 February 1940. In the English document book which is before me, this document is on page 152.
THE PRESIDENT: Document 29 is received as Exhibit 31 and it is incorrectly numbered in the index. We have corrected that.
DR. KOESSL: Thank you.
The next document which I wish to offer is Rothaug Document #50. The exhibit number is 32.
THE PRESIDENT: Received.
DR. KOESSL: This document contains an opinion on the question of the law procedure. The next document ......
THE PRESIDENT: Let me get that straight. Document #50, what number do you give that?
DR. KOESSL: Document #50 I offered as Exhibit #32.
THE PRESIDENT: The exhibit is received.
DR. KOESSL: The next document which I offer is Document #51. The exhibit number is Rothaug Exhibit #33. This document is of a similar nature as the previous one. It deals with the formalities of penal procedure, I offer Rothaug Document #51 as Exhibit 33.
THE PRESIDENT: The exhibit is received.
DR. KOESSL: Rothaug Document #54 I am offering as Exhibit #34. This document contains Article 8 of the Judiciary Act which has been quoted frequently, and to which the defendant himself referred in the witness stand.
I offer Document 54 as Exhibit 34.
THE PRESIDENT: Received.
DR. KOESSL: The next document I wish to offer is Rothaug Document 53. The exhibit number is #35. This document deals with the order for simplification and with the mobilization of the staff and institutions of the administration of justice. This document, in connection with Article 8 of the Judiciary Act, is particularly worth mentioning and I only want to quote one sentence from it:
"And nobody is afraid anymore that the administration may misuse this liberty, to 'withdraw a person from his lawful judge'; or to reprimand a judge who has 'made a disagreeable impression' by one of his judgments, and other things similar to these. Just the overcoming of such an atmosphere of mistrust and psychosis testifies to the naturalness of this development."
This passage is significant in regard to the abuse of the order of 1934 according to which judges, in order to overcome personnel diffi culties, could be transferred even against their own will.
I offer Rothaug Document #53 as Exhibit 35.
THE PRESIDENT: Received.
DR. KOESSL: Rothaug Document #36 describes the position of the Party vis-a-vis the state and inside the state. The particular value of this document is due to the fact that it reports a decision by the Supreme Reich Court in the case of an arrest in a civil proceeding. The year is 1939.
I offer Rothaug Document #75 as Exhibit 36.
THE PRESIDENT: Received.
DR. KOESSL: I offer Rothaug Document # 35 as Exhibit # 37. This document shows the tasks of the SD and regulates the collaboration of the official agencies with the SD.
I offer Rothaug Document # 35 as Exhibit 37.
THE PRESIDENT: It's received.
DR. KOESSL: Rothaug Document # 43 contains a decision by the Supreme Reich Court on the problem of the application of article 51-A, Section 2 of the Penal Code. It therefore concerns the question of reduced responsibility of an offender. I refer you to the statements by the Reich Supreme Court, at the beginning, which say:
"Article 51, Section 2 of the Reich Penal Code does not make it mandatory to reduce the sentence, but lays down that the sentence may be made more lenient." Therefore, the decision as the whether the sentence is to be made more lenient and if yes, to what extent, within the scope provided in the law, is left to the discretion of the judge."
A little lower down, the Supreme Reich Court says:
"It is just the mental condition of the defendant which should have given cause to the Court to examine whether it was at all advisable to pass a lesser sentence; for, according to a medical experience, it is wrong always to meet out more lenient treatment to psychological cases than to sound human beings. A person of inferior mentality must make a particular effort to try and overcome his inclinations which endanger the general public. A severe sentence may be designed to point out to him that necessity with special emphasis."
I offer document # 43 as Exhibit # 38 and ask that it be received.
THE PRESIDENT: Received.
DR. KOESSL: Document # 13, which I am offering as Exhibit # 39, contains a decision by the Supreme Reich Court concerning the question whether, in the case of considerably reduced responsibility the death sentence may be passed by applying Article 51, Section 2 of the Penal Code. That decision, Rothaug Document # 13, I offer as Exhibit # 39.
THE PRESIDENT: Received.
DR. KOESSL: Rothaug Document # 45, too, is a decision by the Supreme Reich Court. It deals with the question of the dangerous habitual criminal. It also deals with the question as to how much influence reduced responsibility has, if the application of laws that make the death sentence mandatory, is to be considered, such as is provided by the amended law of 4 September 1941 in reference to dangerous habitual criminals.
I offer Rothaug Document # 45 as Exhibit # 40.
THE PRESIDENT: Received.
DR. KOESSL: I have now finished with Document Book I-B.
May it please the Tribunal, I can now submit Document Book VI if the Tribunal has already received the English translation. I received it in the course of yesterday.
As the first document from Document Book VI I offer Document 143 as Exhibit # 41. This document is an affidavit by the daughter of the defendant, and this affidavit was given, with the permission of the Court, in place of cross-examination on the affidavit which was submitted by the Prosecution.
I offer Rothaug Document # 143 as Exhibit 41.
THE PRESIDENT: Received.
DR. KOESSL: Rothaug Document # 146 is an affidavit by a policeman Stark, who, in the Gaishauser Case was the victim of the attack by the defendant Gaishauser.
I offer the affidavit by this policeman Georg Stark, Rothaug Document # 146, as exhibit 42.
THE PRESIDENT: Received.
DR. KOESSL: The next document, # 147, is an affidavit by a Frau Lina Meiler. This is the woman who, according to the testimony of the witness Ferber, when she was examined in the Gaishauser Case, was supposed to have been twenty years of ago. The witness is alleged to be an entirely harmless peasant girl in those days. She is supposed to have been interrupted triumphantly by the defendant Rothaug so that she no longer dared to testify as a witness, and the like. The affidavit by that woman shows that she was not twenty, at the time, but she was thirty-four when she was examined as a witness. It also shows that she was not a peasant girl, but the wife of a manufacturer, and it also proves that she was not intimidated and cut short.
I offer Document # 147 as Exhibit 43.
THE PRESIDENT: Received.
DR KOESSL: Rothaug Document 142 is an affidavit by Frau Anna Holz. She is the wife of the former Deputy Gauleiter of Nurnberg. From that affidavit it becomes evident that Gauleiter Holz, on the day of the Katzenberger trial, was not in Nurnberg and, therefore cannot -- as the witness Seiler testified -- have attended the Katzenberger trial.
I offer Rothaug Document # 142 as Exhibit # 44.
THE PRESIDENT: Received.
DR. KOESSL: The next document I wish to offer is Rothaug Document # 150. This document is an affidavit by Karl Gehring. This affidavit proves that the defendant Rothaug always adhered to the law. In this case we are concerned with an action on the part of the defendant Rothaug where he prevailed against an SS Fuehrer and thereby saved the life of eleven Jews.
I offer Document # 150 as Exhibit 45.
THE PRESIDENT: Received.
DR. KOESSL: Rothaug Document # 149 is an affidavit by a Frau Auer. This affidavit deals with how Rothaug, if the opportunities existed, made efforts on behalf of people who were opposed to the aims of the NSDAP, when these people were persecuted.
I offer the Auer affidavit, Document # 149, as Exhibit 46.
THE PRESIDENT: Received.