Interpolation: The following statement I do not propose to read. They refer to the relationship to Doebig and to the report dated 18 December 1942. Contrary to the statements, of Oeschey, it can be emphasized that this was not a personal settlement of the relationship existing between Rothaug and Doebig, but that Rothaug became active only for that reason because Oeschey gave him the order. Rothaug was ordered to report on other happenings which occurred in the Lawyer's league and concerned Doebig. Oeschey , on the other hand, dealt with those incidents which happened in the sphere of the Party.
As proof thereof, it is contained in the following statement which I do not propose to read. In these statements, I also handle the charge of perjury which was raised under this item.
(Fellow parts ommitted in reading).
It follows that Rothaug is not guilty in connection with count IV of the indictment.
Rothaug has three striving characteristics: comradeship without prejudice to class or rank towards his co-workers and subordinates, a permanently almost insanely agressive attitude to his superiors and a complete devotion, bordering on physical self-negation, to his work. In these respects he never charged wherever he might work. (Schroeder Document, English Transcript pages 7037, 7044 and 7045, German Transcript pages 6784 and 6791, Berns: Rothaug Exhibit 305, Wolpert: Rothaug Exhibit 204, Keller: Rothaug Exhibit 53.)
Therefore, it would be a false conclusion to explain Rothaug's mastery of this unequalled burden of duties at the Special Court at Nuernberg as any kind of political activity. It was merely in keeping with his (Character and conception of duty.
It never occurred to Rothaug that Doebig could possibly not be satisfied with his, Rothaug's, work.
For Doebig was always full of praise for it (Denzler English Transcript page ..... German transcript page 6865 and Oeschey English Transcript page 8754, German Transcript, page 8386). Anything to the contrary, as alleged here, he only learned during this trial.
In prosecution Exhibit 561 Rothaug sees the sole reason for this attempted transfer in Doebig's regarding him as a "political disturber of the peace." Rothaug always applied a more rigorous interpretation to the law with regard to actual penalty (Schroeder English transcript page 7027, German transcript page 6775.)
This was the attitude of many men prior to 1933, men who have never become suspect of Nazi Sympathies. (Rothaug Exhibit 1).
And this attitude finds its justification in Rothaug Exhibit 5.
As I explained previously the extent of the individual penalty was exclusively in the hands of the Courts. Thus, the ordinance of 1 September 1939 could not provide the legal basis for a reprimand for excessively clement or harsh judgments.
Rothaug's transfer was caused neither by his conducting of proceedings nor by the judgments of the Special Court. Witness Miethsam is not very convincing in his part as fighter against Nazi personnel policy. After all he is a man who entered the Party as early as 1933 and who voluntarily resigned his position as a judge in order to join the personnel office of the radical Minis of of Justice, Frank, where he arrived just in time for a racial and political cleaning - up operation.
In 1938, at the time when Doebig claims to have started his operation, the Special Court had hardlv pronounced any death sentences among its annual business of approximately 100 cases. The extent of penalties was hardly different from that of other Special Courts.
Miethsan who was to carry out this important but also illegal measure had never seen Rothaug, had never witnessed any of the trials and had never read a judgment from his field of activity.
The legal way of fighting against assumedly excessive sentences by legal remedies had not even been tried by Doebig.
He did however ask for Rothaug's release from military service, when the letter had been called up, claiming that Rothaug was indispensable as Presiding Judge of the Special Court. When in 1941/42 the administration of Bayreuth requested the setting up of Special Court in Weiden and Regensburg and when a telephone call to Berlin would have sufficed to reduce Rothaug's scope of activity to less than half, he refused, saying that he had no use for three different administrations of justice in his district. Rothaug a jurisdiction pleased him. Put from the day when, in 1938, the attempt was made to give Rothaug the post of vicepresident, Doebig considered him a dangerous competitor, although Rothaug immediately declined the Gauleiter's offer.
(Denzler English transcript 7118/19, German transcript 8864 and 6865) Rothaug had no idea of what was going on behind she scenes. He only sensed danger. The clumsy affability in which in 1941 his transfer to the East was served to him, only confined his conviction that he was to become the victim of his superior's insidious game of double crossing. Led as to say by Doebig's continued affability he tried to overcome his inner feelings. During the middle of 1942, he energetically opposed the Gau administration's plan to put him in Doebig's place.
As far as the report of 18 Dec. 1942 (Pros. Exh.561) is concerned, Rothaug has not forgotten the incident, on the contrary, he remembers it very well. A year and a half had gone by since the transfer attempt, without any reaction whatsoever on Rothaug's part.
In December 1942, Oeschey as Gauwalter of the National Jurists League commissioned him as Gaugruppenwalter for Judges and Prosecutors to make a report an Doebig in order to make possible an examination of Doebig's acceptibility in his office. Rothaug duly reverted because he had been commissioned to do so.
It is incorrect that there was a provision according to which in such matters the Gauwalter would have had to obtain the approval of the subordinate Gaugruppenwalter; moreover, according to the Fuehrer principle, he had a free hand.
The report had to be made out without delay. Events and conditions mentioned in it wore well-known facts to the Gauwalter, who at the time had been at the head of official legal institutions of the Party for almost three years. There was no reason to make a secret of these incidents in the past. Rothaug was merely concerned with computing these events in the form of a report in accordance with instructions, as far as he knew of them by personal experience or by reports received at the National Jurists' League.
It is not true that in this connection Oeschey told him to stick to the truth, for he knew even better than Rothaug that Holz desired Doebig's transfer, not, however, his release. Likewise he knew that most of the report was based on outside information some of which had come in years ago and had not been checked; he also knew that it was up to him to accept the opinions of the report.
The formal procedure was that Doebig by joining the party and the National Jurists' League submitted to the statutory discipline of these organizations.
It was the purpose of this report to give Doebig the chance to voice his opinion on the matter. This affair was not an intrigue either in form or contents as opposed to the action against Rothaug, especially as Doebig knew Gauleiter Holz well. Furthermore, Doebig exonerated himself to the extent that Holz did not doubt his political reliability but deemed him incapable of handling the situation (Prosecution Exhibit 554) and therefore advocated that he be assigned to a different post.
In answer to the Prosecution's charge of perjury in connection with Rothaug's statements on the report of 18 Dec. 1942, I wish to make the following statement:
The report of 18 October 1942 does not corroborate Rothaug's report. In connection with the hurriedly elicited explanation by one of Oeschey's stenographers, according to which one of Rothaug's handwritten reports had been copied by typewriter, one can hardly ignore the fact that this witness is dealing with an incident which happened five years ago in which she was merely a tool, which to her must have been just one of probably thousands of similar incidents and which she had no special call to remember.
It is correct that she typed a handwritten draft by Rothaug. But that does not exclude the possibility that she also copied an insertion by Oeschey which was also handwritten. A superficial examination of the report from 18 Dec. 1942 shows three sections.
In the statement, the incidents are at first listed together without numbers, then suddenly, a part follows in which the individual incidents are separated from one anther by Numbers 1, 2, 3, 4. And then the incidents follow once more without numerical separation.
The section with numbers was not contained in Rothaug's report. He refers to incidents which without exception concern judges. Their peculiar quality consists of the fact that they were not received in the NS Jurists' League but in the Party, and there, they were dealt with by the Gauleitung (Administration), particularly by Oeschoy, directly with Doebig, 1, 2, or 3 years before the report of 18 December 1942. An order to make his statement credible, in spite of the facts revealed in the report of 18 December 1942, namely, his statement that Rothaug had reported these incidents to the Gauleitung, he had short summaries of the facts inserted into the card files of the NS Jurists' League. These summaries were never submitted to the NS Jurists' League. (Rothaug Exhibit 224).
Information regarding such incidents would have even violated official secrecy, (Number 1 of the supplementary Regulation, in Rothaug Exhibit 206) because the NS Jusrists' League did not come under the provisions of this regulation.
Also, in the Doebig Case, how could Rothaug have come across such "short summaries" which had supposedly been put into over 1000 card files by Koenig, Dries, Ankehbrand, and Strauss, without his having known about their connection with the Doebig Case? In this connection, even the weeks which we today, after the fact, so generously claim were authorized him then, for tracing the material, would not have been enough for completing the case.
The incidents listed without numbers were evidently sketched from memory without dates, whereas the sections introduced by numbers not only assign dates to the individual incidents, but also to the internal expert treatment of the cases, even cites the file references for the judicial documents, which, to be sure, the Gauleitung, but not the NS Jurists' League, was able to obtain.
The case of Koenig proves this. It takes place between Koenig, the Kreisleiter of Uffenheim. Doebig and the Gauleitung. Its description should only be based on the existing exact documents and not on a brief report on events. I only point to the following phrase: "After thorough examination of the documents, the Gauleitung has presented its position in this matter to the Presiding Judge of the District Courts of Appeals. "Only one who had read the verdict could make who subsequent evaluation of the verdict."
The case of Hauth rests on the same basis. The quotation, deliverately taken out of contact with the verdict as well as the summarizing evaluation of the verdict only could have been made by some one who had access to the documents In regard to the cases Dries and Ankenbrand nobody could know the inner connections without knowledge of the documents which contain information regarding the libel suit which in turn is connected with the earlier case of Hauth which was based upon an eviction suit, disregarding that the treatment of the details of various happenings of and inner connections during the trial only was possible on the basis of a thorough study of the documents.
Ankenbrand's expulsion from the Party mentioned here furthermore indicates an extensive participation in the Party.
The same is true of the exact dates, document numbers and the decisive parts of the verdict cited in the Henning case. Also the manner of their evaluation could only be made on the basis of concrete documents which according to Oeschey's statements were not available to Rothaug.
What sense would it have made if at the end of 1942 Rothaug would have reported to Oeschey of all the people on matters which on the basis of extensive studies were extremely well known from the original documents since 1940 and 1941. One may believe Rothaug, when he says that Oeschey expressly stated at that time that lie himself had worked on these matters at the Gauleitung and that he was to report the events which had taken place in the Rational Socialist Jurists' League.
The witness Daenzl (Oeschey-Exh.10) was to bring Rothaug in connection with a letter of 13 December 1942 which did not contain attacks against the Juvenal Penal Court, which also were dealt with by the Gauleitung (Prosecution exhibit 561). Despite the efforts, Daenzl has therefore not verified Rothaug's connection with these events. Rothaug had nothing to do with them as Oeschey knows well.
The matters on which Rothaug worked were dealt with from the Party point of view.
The case of Schubart was conducted by the German Labor Front by way of the Gauleitung. (Oeschey-Exh.No.10).
Following Oeschey's orders, Rothaug took position in professional respects to the verdict of the 3. CIVIL SENATE. He had nothing to do with the further treatment of the matter. In a circular letter of the Ministry the verdict was declared not to be satisfactory but at the same time there was no reason to interfere. Also here it was assumed that Doebig who also had disapproved of the verdict took a dual position. The publication of the position by the Gaulietung by circular letter was criticized.
Regarding Heinrich's relations to the proprietor of the department store "Weisser Turn" there was a complaint to the National Socialist Jurists' League, which even had not been examined.
In connection with the promotion of Standartenfuehrer of the SA Ermert, it was criticized that Emmert, who depended in professional matters upon the benevolance of Doebig had under the influence of Doebig ceased to co-operate with those offices, which formerly had been working for his promotion.
In the case of Leis, there was a report. Rothaug, took the position that the professional decision of a judge was expressly excluded from the complaint and directed it against expressing an attitude contradictory to the Party while in an official capacity.
The sign at the door of the visitors gallery of the court room according to which Jews were not permitted, was caused by an event, which occurred in the Schmitt Fahsel case. Without the knowledge of the will of Rothaug, Streicher had caused a man to be asked to leave the room and incited a terrible scandal because he had thought this man to be a Jew. The Court was powerless in the face of such conditions.
The Reich Supreme Court (Reichsgericht) had considered this action to be lawful. With the exception of Nuernberg, the Special Court had not used it. (Rothaug-Exh.33).
The matter concerning the Streicher-pictures was looked upon from the point of view of the principle to kick the weak According to Rothaug's attitude everyone, who accepted a high position on the bus is of wanting to serve the state with unconditional loyalty was under the inner obligation to serve the state loyalty.
All others did not interest him. Never was any action taken against a judge or a prosecutor upon his initiative and this also holds true of the then already old events which he had been reported in connection with the report of 18 December 1942. Also the report itself, which was directed against Doebig inner attitude, was of no consequence for anybody else and was not opposed to be of consequence either. There was the understanding between Oeschey and Rothaug on the one side and Doebig on the other side, that Rothaug and Oeschey were to report such cases to Doebig and should leave it up to him to dead. with these mutters, instead of reporting them to the higher authorities. What caused indignation was that Doebig did not act.
Rothaug only informed Doebig verbally and never made any demands, not to speak of an illegal demand.
Rothaug did not punish other people for their contradictory attitude towards the party. When he was a defense counsel appointed by the State in political penal matters, he also defended well known political opponents. When he learned from the investigations that action was being taken against Dr. Mayer (Rothaug -Exh. 231 Prot. engl, page 3565) he protected him and suggested to him to let him take over his defense in case concrete actions should be taken, against him. Upon the plea for help from Frau Kern Rothaug caused the release of attorney Kern who has appeared here as witness for the prosecution and who had been arrested by the Gestapo, who was not a member of the NSDAP and was known as being in opposition to the Party. Frau Kern as well as Kern's whole family was unknown to him? (Rothaug-Exh. 202).
Mayer, now Justiz and Kassenrat at the District Court of Appeals in Nuernberg, had not been promoted in a defaming manner for almost 10 years inspite of excellent professional achievement. This had its reason in political ill will and because he was a member of a Free Masons' Lodge. The officers concerned did not take interest in these conditions. Although Rothaug knew that this politically embittered nan was more belligerent in his attitude than before he immediately straightened out the matter. (Rothaug-Exh. 47).
The appendix to prosecution Exhibit 561 refers only to an event concerning Emmert mentioned in the report of 18 December 1942 and who gained his knowledge of this report of 18 December 1942 from Thierack. On the 1 June 1943, Oeschey who was Emmert's subordinate withdrew his accusations against Emmert and referred to Rothaug as he stated in his assurance upon his word of honour, which Emmert used for his justification with the Minister. Oeschey informed Rothaug afterwards, who--knowing the Oeschey's dilemma--approved of his action. Rothaug did not know that Oeschey had given his word of honor. It was correct in the statement of Oeschey that he had no personal knowledge of the Emmert affair.
The conduct of procedure of Rothaug.
I shall not dwell upon Rothaug's excitations which came from his temper, the overword, nervous excitability and also the whole development of this man's life. They were merely words and not more than just that.
Judge Keller (Rothaug Exh. 33, an experienced expert said: "I have participated in several, sessions up the Special Court in Nuernberg in whech Rothaug presided.
Court No. III. Case No. III.
At the bottom of page 44 specific accusations regarding the method of conducting trials. The case of the Pole Cudcich shows that the extermination of cattle was a clear-cut of sabotage (Rothaug Exhibit 210). The fact that the defendant was a Pole was no proof of an intention to commit sabotage. On the contrary, it was examined on the basis oi the existing facts and in their particular case denied against the testimonies of the German Prosecution witnesses (ROTHAUG-Exh. 210 and 48). ROTHAUG (Engl. Transcript p. 7474/75, Germ. p. 7195/96), taking into consideration the young age of the Pole, considered a prison term sufficient in case his guilt should be established, although the Ministry had given directions to pronounce the death penalty. In the latter directions it was emphasized that the youth is the defendant should play no part. I thus want to disprove that the Courts had rendered more severe the Penal Law for Poles.
The actual attitude is much more proof than an unfortunate exclamation. The GUDCICH trial proves in itself that ROTHAUG never could have been dominated by the desire to exterminate Poles only because they were Poles.
In order to avoid the return of unjustly accused Roles to the Gestapo, ROTHAUG helped to find them good jobs. (ROTHAUG-Exh. 48 and 199). Nobody would do that who desires the extermination of all Poles.
2.) The accusation raised in Prosecution Exhibit 558, that Rothaug in agreement with Streicher had refused witnesses, is based upon an erroneous assumption of witness Ludwig. At the time of the trial in May 1937 Rothaug even did not yet know Streicher. Stegmann was an SA-Obergruppenfuehrer and was accused before the Penal Court because he had become guilty of breaking the peace in Party offices during a revolt of the SA. Already before Rothaug's transfer to Nuernberg the Party had refused to give the legally necessary (permission to testify) to a number of witnesses.
Not until the main trial was the exclusion demanded with the justification to exert efforts to obtain this permission then. No objections could be raised against this on legal grounds. Ludwig, however, including the names of these witnesses, submitted an application to present evidence which was denied by the Court on technical grounds because the witnesses did not matter. The appeal for review was based upon this but was withdrawn, expecting complete failure. (Engl. Transcript p. 9332, Germ, p. 8940). Regarding the permission to testify see Rothaug-Exh. 205. The proceedings were lawful.
5.) The introduction of judges from the Special Courts into the Penal Court (Strafkammer),- which also had to decide about the applications of the Special Courts to reconduct trials-fell within the jurisdiction of the judiciary administration and not within the competency of the Presiding Judge. The composition of the Penal Court on this basis was legally incontestable, although, it has been attacked (ROTHAUG Exh. 189).
4.) Prosecution Exh. 553 is a protest by ROTHAUG to the Presiding Judge of the District Court of Appeal concerning an abortion case of a certail SIMON versus high Party functionaries, in which it had been attempted under the influence of interested Party circles to transfer the case illegally to another Penal Court.
The legal conditions described therein are correct. The explanations of ROTHAUG, according to the clear purpose of the letter, were to anticipate to begin with all possible points of view of a legal or political nature behind which it was hoped to defend oneself. It would be wrong to give weight to statements disconnected from this basic idea.
5. ) The application of Gestapo Reports in the case of Rosa HEUBECK has not occurred as asserted during the interrogation (Engl. Transcript p. 7577, Germ. p. 7289 and ROTHAUG-Exh. 207).
The introduction of the documents as evidence should have been presented by reading them (Par. 249 German Penal Code) as stated expressly in the Rules of Procedure (Par. 273 I German Penal Code). According to the record of proceedings (ROTHAUG-Exh, 207), such a reading did not take place. Only the preceding verdict against Goerg HEUBECK was read, which was permissible.
I quote from exhibition 193: "Opinion of the judges may also be based upon testimonies which are contained in a verdict that has been read," End of quote.
6. ) The accusation against ROTHAUG of having conducted a "theater trial" in the SCHMITT/FAHSEL case which came before the Panal Court in the Summer of 1937, does not concern ROTHAUG because the external framework of this trial was neither in this nor in other cases in his hand. In all cases according to his orders he had to report about the proceedings to the Justice Press Office which together with the Gau Propaganda Office decided whether or not a case was to be published in the press. If such was the case, then the Justice Administration Issued admission tickets to everybody. ROTHAUG had nothing to do with that. In no case had ROTHAUG given tickets to Party offices nor nad he invited the members of such offices. There were special directions for the Justice Administration for such matters as in the case SCHMITT/FAHSEL. ROTHAUG treated the matter as a normal case in a small court-room (DENZLER Engl. Transcript 7113/14 Germ. p. 6859), ROTHAUG Engl. Transcript 6840/41 Germ. p. 6608/09).
Only the appearance of large crowds of visitors, attracted by the posters of the Propaganda Office, caused the transfer of the trial to a larger court-room after it already had started, ROTHAUG had not counted on the appearance of STREICHER and other functionaries of the Gaulettung.
They all were not known to him in the Summer of 1937 (ROTHAUG Engl. Transcript 6840/42 Germ p. 6606 and 6608).
DENZLER, being a superior, issued directives to the Prosecutor who was seated at the same table with the judges. ROTHAUG states with certainty that he did nor receive a note with regard to the matter itself. Nobody has even made the attempt to exert unjust influence (Prosecution-Exh. 555, ROTHAUG-Record Engl. p. 7229/30 Germ. p 6869/70 and DENZLERTranscript Engl. 7111/12 Germ. p. 6857).
ROTHAUG's remark against FAHSEL did not occur in the extraordinary manner as asserted by DOEBIG. DOEBIG, who only reports from bearsay, has not explained what in the conduct of FAHSEL caused ROTHAUG's siipping. Considering the justifiable cause, one did not thing it necessary to take disciplinary action.
The verdict was attacked in the National Socialist Press because of its softness (ROTHAUG-Transcript, Engl. 7189, Germ. p. 6931).
FERBER'S testimony is untrue, viz. that ROTHAUG had expelled a man from the court-room because he thought him to be a Jew. The event as described above occured without ROTHAUG's will or knowledge and was exclusively dur to STREICHER (ROTHAUG Exh. 205 and DENZLER Engl. Transcript 7112 Germ. p. 6858).
7.) In the HELLER MUENDEL case the defendants had enticed a taxi driver to drive into a lonely wood pretending they were taking a trip. There MUENDEL caused the driver to stop under the pretext to relieve himself and thus enabled HELLER to utilize the seat behind the driver - in other words a typical automobile danger - and to fire the fatal shot into the head of the driver.
When they were surrounded, HELLER shot the hand of a policemen (Record Transcript p. 7227/28 Germ. p. 6967/68).
In contradition to FERBER's description this was a severe double criminal act. The legal point of view taken in this matter was just (ROTHAUG-Exh. 161 and 162). Also FERBER's assertion, that the trial was conducted at record speed, is misleading.
HELLER and MUEDEL had fully confessed their crimes. They had renounced an intervening tine before the summons, which was legally permissible.
The law concerning motor vehicle traps was the necessary reply to the epidemic increase of cases of robbery on the Autobahnen. To counteract this, quick action in every individual case was essential. Therefore the Public Prosecutor at once wrote the bill of Indictment in the case, which had been cleared up by the confession of the Defendants. Following an instruction by the Ministry to await a decision of the Reich Supreme Court in a similar case, HITLER entervened, which had the consequence, that the indictment was submitted to the Presiding Judge still on the same day; the Presiding Judge in agreement with the Defense Counsels fixed the next day 1100 hours as the date of the trial, which was interrupted at 1200 hours for two hours and was concluded at 1700 hours, FERBER's assertion, that HITLER only interfered in the clemency proceedings, is not true. The trial was conducted without undue haste and carefully.
The Court had to travel to the place of execution in order to make a decision concerning possible requests for retrial. Only the Senior Public Prosecution was in charge of the execution. ROTHAUG did not travel to Munich with STREICHER.
Nor did anyoody consume alcohol. Dr. KUNZ' statements, who relates rumours, as if he had any knowledge of his own, are wrong. ROTHAUG had nothing to do with STREICHER'S presence at the execution. He stayed with his Judges in the anteroom of the execution chamber, as was prescribed by the regulations. It was the only time, that he was in a place of execution in his capacity of Judge or Public Prosecutor. (Engl. Transcr. P. 7235, German Transcr, P. 6974, DENSLER Transcr. Engl. P. 7099, German P. 6848 sqq).
I interpolate. Rothaug testified as to the reason, method and duration of the visit to Dachau Camp. This concerns a purely incidental matter of the year 1938, with no official character which was connected with the Christmas amnesty and which did not permit Rothaug to gain the slightest impression of incidents in the camp.
Rothaug knows nothing of anthropelogical investigations carried out by Streicher in the prison. The prisons were under the Jurisdiction of the General Public Prosecutor and the prison officials, not under the Jurisdiction of the Presiding Judge.
Rothaug did not mention the abortion question; this has been rectified by witness Kunz (Engl. Transcr. P. 3574, German Transcr. P. 3548/49). The question of Muendel's pregnancy had no bearing on the judgment, but was only relevant for the execution, which was no concern of the Court. Rothaug would therefore have been justified to limit his expert's opinion correspondingly (Rothaug Exh. 190), unless Kunz has confused the persons also in this point after 9 years, where he vaguely states that this happened "on the way to this room". Kunz asserts, incidentally without giving any concrete details that Streicher influenced the Court; that this assertion is not true follows from the simple reflection, that here was a credible confession, the consequence of which was determined by law, so that there was nothing to direct.
8) The Cross-examination question (Engl. Trancr. P. 7526, German Transcript P. 7272), why on the occasion of the Aryanisation Rothaug did not issue warrants for arrest in accordance with Art. 125 of the Code of Criminal Procedure, is disposed of by pointing out, that Rothaug was not examining magistrate and was authorised to act as a substitute for the examining magistrate in issuing arrest warrants only by Art. 20 of the Decree concerning Jurisdiction of 21 February 1940. (Rothaug Exh. 84). But on 21 February 1940 the Aryanization had long been completed.
9) In the Kurks and Struss case (Prosecution Exhibit 232), (Cross-Examination Kern, Engl. Transcr, P. 3810/11, 3934/35 German Transcr. P. 3769/70 and 3887/88, Prosecution Exhibit 154 and Cross-examination Marx**Ehgl. Transcr. P. 3675/77, German Transcr, P. 3641-3643 Rothaug Exh. 205), two Polish women bad set fire to an armament factory near Bayreuth with intent to commit sabotage. They were kept in custody at Nuernberg, which resulted in the Nuernberg Special Court being competent in accordance with Art. 8a of the Code of Criminal Procedure They had been caught in the act and had confessed everything. In addition there existed a letter of one Defendant to the other, in which the whole plan and the execution of the act was laid down. (Rothaug Transcr. Engl. P. 7238-7247, German P, 6977-6986).
In the existing situation and in accordance with Art. 23 of the Decree concerning Jurisdiction the main trial had to start immediately without intervening time for the Defendants to obey the summons. Rothaug declared to Attorney Kern who had been appointed Defense counsel, in reply to the latter's objections concerning the shortness of time, that there was no legal way to avoid this.
If he was unwilling to conduct the Defense, things had to be done without him, that meant, that things had to be done without Kern, but hot without Defense Counsel. Both Defense Counsels appeared at the session without making any further objections (Prosecution Exhibit 232, Cross examination Kern, Engl. Transcr. P. 3811, German Transcr. P. 3770).
The one Defendant upheld her confession in the trial, the other denied her guilt, but admitted that she had confessed it to the Police. No circumstance was revealed, which might have rendered erronous incrimination of the second Defendant intelligible.
In accordance with Paragr, II, III and XIV of the regulation concerning penal jurisdiction over Poles the sentence had to be in accordance with German Law, which meant in this case Art. 3 of the Decree concerning Public Enemies, which unconditionally prescribes the Death Sentence.
The "request for evidence'' affirmed by Kern, that persons were to be examined, in order to ascertain, whether these persons could testify to anything concerning the act, would have been a request for evidence, with which it was not permitted to comply. The trial was conducted in a careful manner. Also a German could only have got the Death Sentence.
At that time Kern saw no reason to make a request for a new trial or to start a nullity action, though the Defendants as Polish women in the Reich were in this respect submect to no restrictions.
I interpolate. The Prosecution states that the convicting took place twenty-four hours after the commision of the dead and this is entirely without basis. It is also incorrect in view of the various transfers of interrogations, because there it also would have been impossible.
1.) In the Geishauser case the Defendant after having been arrested for Immorality committed on a chile had insidiously stabbed the policeman near his heart on the way to the Police station.
Ferber has made both general accusations against the dealings with applications of the Defense Counsels outside the trial (Engl. Transcr. P. 1350, German P. 1358.), and the special accusation (Engl. Transcr P 1704, German P. 1724); that the Defense Counsel Kroher in the Gaishauser case objected to the opinion of the medical expert, giving at his reason, that the opinion was not objective, because it dealt with racial and sociological questions. This application for a new expert's opinion was rejected by Rothaug with the remark, that it is the task of the physicians, to assist the process of justice by such statements.
Rothaug has refuted the general accusations - misleading in their foundation and their *** concerning unfair methods of dealing with requests for evidence, by explaining the legal situation. (Engl. Transcr. P. 7196, German Transcr. P 6937).
THE PRESIDENT: Dr. Koessl, owing to the fact that we commenced the session a little early, it becomes necessary to take our recess at this time.
We will recess now for the usual period of time.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: I understand that Dr. Schilf desires to request that the defendant Klemm may be excused for the balance of the afternoon. Am I right, Dr. Schilf?
DR. SCHILF; Yes, Your Honor, that is the request which I wanted to make just now.
THE PRESIDENT: The request is granted.
DR. KOESSL: May I continue?
The medical opinion in the Gaishauser case had been given at the application of the Public Prosecutor (Rothaug Exh. 144) Ferber lodged the indicment taking into consideration this opinion, which he today criticizes. (Engl. Transcript p. 7324, German Transcript p. 7050).
The Judgment could only be based on the expert's opinion given in the trial. (Rothaug Exh. 142 and 148).
If anybody had to make objections to the written expert's opinion, Ferber had to be the man for he based his indicment on it. In reality the application of the Defense Counsel only asked for an expert's opinion on the Defendent to be given by a mental hospital. The application did not contain the statements alleged by Ferber (Rothaug Exh.
151).
The legal aspects of this application become apparent from Art. 81 of the Code of Criminal Procedure (Rothaug Exh. 152) according to which only the physician cann make the application for transfer to a mental hospital. The physician refused to make the application, wherefore the Defendant's suggestion could not be complied with (Rothaug Exh.
218).
Ferber's statement under oath is likewise untrue, that Kroher gave up the idea of another expert's opinion, because at this session the Defendant was represented by a substitute. According to Rothaug Exh. 142 Kroher himself made a renewed application in the trial, the physician did not make the application for a transfer to a mental hospital, wherefore also the Court rejected, the application refusing another expert's opinion, because the opinion of the physician was considered sufficient.