A You mean before the time when I joined the Special Court?
Q Yes.
A Yes. Yes.
Q Is it correct that in that time during the time during which you held the position of Landgerichtsrat during which you wanted to become a Landgerichtsrat at the Nurenberg District Court that during that time you went to see Rothaug again and again so that you would make sure that you would be used at the Special Court Nurenberg while Rothaug was at that time the presiding judge?
A No.
Q In other words, you seriously dispute the fact that you more than once went to see Rothaug to try everything, particularly with him to try everything to be allowed to work with him in particular, that is, with Rothaug a.t the Special Court?
A Concerning my transfer, I spoke to the Oberlandgerichtspresident Doebig, and I spoke to him more than once. It is particularly due to his initiative at Berlin that I received a scheduled vacancy, and it was customary--you yourself put that in your question -- to use some body who came from the prosecution, to use him on penal cases. It was customary to do that for one reason alone, because I was excluded from a number of penal cases owing to my work as a prosecutor.
Q But in that case it should have been particularly easy for you to get into a civil chamber, in particular, as you say yourself that you had the President on your side.
A Yes, Oberlandgerichtspresident Doebig at the end of 1940 told me he referred to the decree from the ministerial council for the Reich Defense, that he believed that he could use me best if my experience -if I placed my experience in the service of the Special Court. In that context Oberlandgerichtspresident Doebig personally told me he hoped for my cooperation. Owing to my personal behavior, he was hoping for a conciliatory and moderating influence on Rothaug.
Q. What attempt did you undertake to exercise a moderating influence on Rothaug?
A. That I did make attempts is evident quite clearly from that the fact that nearly all other associate judges repeatedly told mo. "If he listens to anybody, it's you. You might tell him this thing or another thing. At least ho doesn't bark at you".
Concerning the administration of justice, as such, I had always expressed that the administration needs recognition; and when Undersecretary Schlegelberger, after the death of Guertner, was in charge of the administration of justice and Rothaug spoke only Schlogelbellarism of the Reich Ministry of Justice, at that time I said in front of witnesses, "Now this man has become our supremo chief. Who else is to go? Is Himmler by any chance to be placed in charge of the administration of justice? Are we to be made to wear uniforms? Is the SS Leader of the SS to police to become our Lord?" Rothaug said, "Let me be the minister. I have ideas."
Q. We will revert to those questions at the proper opportunity during this cross examination.
A. Yes.
Q. Do you admit that your work in the civil chamber in the -- What has been done in the interests of your general training?
A. Yes, that would have been so.
Q. But, above all, I would like to know from you whether the view you have today of the political problems with which the German jurists were occupied before the catastrophe -- whether it corresponds to your views before 1945.
A. I never left anybody in any doubt about that, Rothaug, himself, drew my attention that the associate judge who had sat at the special court -- the so-called SS-Meier -- that it had been him who was the SD Office Nurnberg -- had pointed out that after Oeschey the next deputy president at the special court -- that was myself, -- was practicing Roman Catholic. Rothaug said to me at the tin, "Concerning this report by Meier, he had tried to reproduce it to the gentlemen on a very mutual form". But concerning Meier's statement, he appeared to be rather more reserved with me after he had had that report from Meier, but that did not prevent Rothaug, even during the trip from Kamm to Nurnberg, to say in my presence to Meier, "Don't you try and get Ferber to leave the Church; Ferber won't do that."
Q. Well, you admit that Rothaug did not make any difficulties for you although ho knew that you wore a very convinced Roman catholic -that you were one and that you arc one?
A. His understanding of my church attitude -- I never left anybody in doubt that ho understood it.
Q. Furthermore, is it correct that Rothaug never placed any obstacles in the way of anybody who had held different religious views from his own?
A. Concerning this question, I have had two experiences. When the associate judge Pfaff was described once by Haberkern as "soiled by Catholicism," it was Rothaug who settled that matter -- rather, who ironed out that crease. On tho other hand, I know from statements by Grobe and Fross that that was very true. He had spoken about leaving their church, their religious community.
Q. He held discussions with them but he did not harm them in any way. Is that a fact? Furthermore, can you tell mo that the so-called SS-Meier, of all people -- that is to say, that judge who was the only one who held a rank as an SS officer -- was removed from the chamber by Rothaug?
A. The fact is correct, and I do also know the reasons.
Q. Is it correct that Rothaug removed that SS-Meier, criticized that SS-Meier, and one of many as a judge, for the very reason that he had behaved badly toward people who held different religious views?
A. Between Rothaug and Meier there were considerable divergences for the first time when Rothaug found that Meier, in his capacity as a member of the SS, made reports on tho special court to the SD office, and.
also about the members of the special court. It was put in this way: Rothaug did not want Meier to interfere in the scene which Rothaug claimed to be his own. Meier's rude way of behaving with persons who had different religious views -- and that in his personal contact with persons that Rothaug did not like, as he, himself, said -- Meier was too unskillful about it, and ho was too provocative.
Q. Well, you said that Rothaug did not like ti when the SD was informed about the judges, and gave his own reports. Is that correct?
A. You did not put the question the right way. You contradicted yourself. You meant to say something quite different. I think you wanted to ask whether Rothaug did not approve if Meier spoke about the judges.
Q. Witness, I do not want you to correct my questions, but I want you to answer my questions. I an asking you again: Did Rothaug refuse the estate dealing with political assessments of the judges?
A. I don't know that, because concerning the activity of the SD, the SD Office, I had no insight into that.
Is it correct that at any rate that SS-Meier was removed from tho office?
A S.S. Meier asked in the case of two or three corrections. Oh, sometimes he had difficulties, differences of opinion with Rothaug. He received an appointment on civil cases.
Q Now, we are going to revert to your own political activity. On the direct examination you stated that you joined the party because Denzler, concerning all those who were not members of the party, that he later talked to the Gauleadership and thereby made them members of the party, is that correct?
A Yes, it is correct.
Q Do you remember, witness, that all the same several judges and prosecutors in Nurnberg did not become members of the party?
A There were seven or eight of them.
Q But at any rate there were seven or eight jurists who were not members of the party who had not been reported by Mr. Denzler. Did you personally, concerning your complement or local group, did you send in an application for joining the N.S.D.A.P. party?
A No, I was asked, and I was asked by the Gauleiter of the Opferring, Farth, the secretary, and it seems to me with me there came Mr. Denzler, Mr. Rauch, and I think also a Mr. Roth you mentioned, yes, it is possible, and at that time we were told that through the N.S.R.B. Gauleader our membership in the N.S.D.A.P. had been suggested for reasons which were to be given. We were asked whether there were any reasons which might be against reception in the party when we were outside. For example, we were asked immediately whether we belonged to the Free Masons and we were also asked about Jewish origin.
Q Witness, you are giving a rather complicated state ment on this.
Do you admit that all party members were received into the party in the same manner?
A It was not the same. It was not the same until Farth. Some of those who had been reported for some time had been members of the Opferring, and Herr Roth was one of them.
Q Just a moment, don't evade the question.
A I am not evading the question. I am not evading that question.
Q It was a voluntary application to sign, you had to sign a voluntary application, and in signing that voluntary application you had to give an assurance that one had never belonged to a Free Masons Lodge and that one was a lawyer within the meaning of the law.
A That is correct. This is the appearance as it was quite simple.
Q. Just a moment, for the record it was perfectly voluntary, is that correct?
A Voluntary except for the fact we were asked to appear.
Q But only those were asked to appear who had voluntarily reported to Denzler for joining the party?
A No, no. Roth did not voluntarily report to Denzler to be received into the party.
Q And the other seven or eight public prosecutors and judges who never became members of the party?
A, Denzler, for personal reasons, did not report them.
Q Did he perhaps not wish to pay that tribute to them, that tribute of joining the party? Do I express myself correctly?
A Denzler said at that time -
Q Yes or no.
A I can't answer the question that way. It was not a case of paying tribute to anybody but Denzler said that it was the desire of the Gauleiter, that after he, gem rally speaking, considered us worthy of wearing the party badge he would like us to join the N.S.D.A.P. as far as we were not yet members, that he would suggest to the Gauleiter that we should become'members. These wore Denzler's own words.
Q At any rate it is certain now that the Gauleiter Julius Streicher, who is very well known here, considered you worthy of belonging to his party, is that correct?
A Gauleiter Streicher did not even know me by name.
Q But you said that the Gauleiter considered those persons who were worthy.
AAfter, up above our 600, at the invitation of Denzler, he had made a confounding speech. We believed that.
Q At your local group, did you engage in any activity?
AAt the local group of the N.S.D.A.P. I engaged in no activity at no time.
Q Did you say once that work had been offered to you at the Gauleadership office, that you would prefer an occupation in the Gauleiter's office to mechanical work you had done before in the local group?
A That question refers to a different activity. We are coming to that in a moment.
Q Just a moment, I only want to know about your activity in the local group.
A In the local group of the N.S.D.A.P. I never engaged in any activity.
Q Please don't confuse us. Just actual work.
A No, in the local group of the N.S.D.A.P. I neither hold an office nor did I do any work for them.
Perhaps you are speaking of the N.S.V.
Q Of course, I did not want to confine my question merely to a party function, but I am speaking, I wanted to extend it to the whole method.
A That is tremendous.
Q According to your statement then on direct examination Rothaug suggested you to Oeschey for corporation within the Gauleadership office. Am I repeating your statement correctly?
A I would like to put a previous question myself.
Q Tell me, have we finished now with the N.S.V., and you admitted to me you did work for the N.S.V.
A In the N.S.V. I worked for ten months, from 1937 to 1938. That is to say I collected subscriptions,and for the winter work, winter aid scheme, I deducted collections, and at the beginning of the new winter in 1938, concerning the cell warden of the N.S.V., I told him, "Now, for a whole year -" Actually it was only ten months, because the two summer months we will exclude. That makes ten months. "I have done it now for a year, and now it is time for somebody else to take over that activity." That was the mechanical work which I mentioned once before.
Q You can admit such details without any to-do, and if you do that we get on much faster. With what office of the Gauleadership were you to take up work?
A The three documents in my possession say the following: The first letter signed Oeschey, addressed to me. "I have suggested to the head of the race political office of the N.S.D.A.P., Gauamtsleiter Trappner, I have suggested you to him as collaborator on the information office for population policy at the suggestion of Gapgruppenwalter for judges and public prosecutors."
Second letter, letter from Gauamtsleiter Trappner to me. "According to an information which I have received from the head of the Gauleiter office, Oeschoy, you are prepared to take charge of the office concerned with population policy. I would ask you to come to an interview to my office." Third letter, "Since you have talked to me," meaning Trappner and myself, "Since you have talked to me, in a the enclosure I hand you a questionnaire. Please complete it and return it to me so that I can achieve first of all your provisional and later on your possibly permanent appointment,to the office as head of the Gau office for information, office on population policy."
Q So that is evident.
A I completed the questionnaire. The third question was, "Do you belong to a Christian church?" After I had submitted the questionnaire concerning a provisional appointment, let alone a permanent appointment, I did not hear another word about it. That is the pure truth.
Q Did you engage in any activity?
A In three cases here at the courthouse, in Room 138. In one case it was a war widow. In the other two cases it was the case of two women who wanted to marry. They were announced beforehand by telephone, and they were then sent to me, and these three women were from the N.S.S. Welfare Office in tho courthouse here. I sent them in one case on to the Justizrat and the other two to attorneys at law, Hunsinger and Grosser, at Fuerth, and I sent them on to these gentlemen.
Q Your activity at the office for racial policy, did you make that known to your authorities so that that should- be entered in your personal files?
A We were under an obligation to make a report on any collaboration to the authorities; as well the appointment; that is to say, the suggestion, I did report that. The date can be seen on the copy of that document and is in my possession. A provisional appointment or permanent appointment I never could report because I never received such an appointment.
Q Under direct examination you mentioned repeatedly public prosecutor Duettner who was the Secretary of the Rechtswahrerbunal, the Jurists League. What was your relation to Duettner?
A Duettner was my neighbor in 127-126 in this house. Because he was my neighbor at the Courthouse we had an association which was quite pleasant and which arose from our official connection, but as Duettner was called up during the Austrian campaign, and then in 1939 immediately was called up again, I never heard of him since that time.
THE PRESIDENT: We will have the morning recess at this time.
(Recess was taken)
THE MARSHAL: The tribunal is again in session.
DR. KOESSL: Counsel for the defendant Rothaug.
THE PRESIDENT: Dr. Koessl, we remind you that you have been cross examining this witness for an hour and a quarter, and your examination after this time has been chiefly confined to the credibility of the witness, the history of the witness himself; and while we are not saying that you have reached the end of that, we remind you that you can't take too much time to a challenge of this witness. The importance of this witness or any other witness must pertain to the defendants who are on trial and we wish to therefore, as soon as you can, go to that part of the testimony that was brought out by the direct examination of this witness so far as the testimony pertains to the defendants on trial.
DR. KOESSL: May it please the Court, I ask you please not to misunderstand me if I treat this witness in more detail than I would any other witness. This witness is of importance in two respects for the defendant Rothaug. First, the witness is probably one of those who was one of the most confidential assistants of Rothaug. He has the most extensive insight into the activity and the attitude of Rothaug; and secondly, the witness is of such extraordinary significance because he is regarded by me as typical of the witnesses at the present time in general. The entire defense is extensively concerned with the question as to whether the witnesses are testifying for opportunistic reasons today after the catastrophe of 1945, and that they are therefore saying something and thinking differently from the way they were thinking and acting for 12 years. And for that reason, I would like the gentlemen of the Tribunal to be considerate if in this one case I speak to an extraordinarily detailed extent also of political questions.
THE PRESIDENT: Dr. Koessl, I remind you that you have brought out at considerable length the relations between this witness and Rothaug and perhaps other defendants, his opportunities to study the character of the defendants and what they have done, and also you have brought out at quite some length the relations of this witness to the Party and Party activities. While I am not saying you can't go any farther with that, we desire that you come to the point as soon as you can.
DR. KOESSL: I shall stay within this ruling.
CROSS EXAMINATION BY DR. KOESSL:
Q. Witness, please summarize in brief for the Tribunal in which party organizations--affiliated organizations of the movement--and connected organizations you were a member; for how long you were a member; and please state your possible activities. I ask you to be very brief and state the dates.
A. In connection with the reapplication to enter-
Q, --I do not ask you to make any declarations, but only to enumerate the organizations.
A. In 1934, promoting member of the SS; first of May 1937, that is a retroactive date, actually October 1937, member of the NSDAP--the Nazi Party; in connection with that , for ten months activity work in the NSDAP; the National Socialist Welfare Organization until October 1938; from then on, no active work until about the turn of the month and the end of 1941, beginning of 1942, upon the suggestion in the Gau to collaborate in the information office for population Poles, limited to three individual cases; furthermore, I was in the National Socialist Lawyer's League, as the professional organization; I was a member in the Reich Colonial League and a member of the Reich Air Protection Bund, Riehcsluftschutzbund. That is all.
Q. Do you know a man by the name of Ohler?
A. Yes, very well.
Q. Who was this Ohler?
A. Herr Ohler was a criminal commissar who had been active with the Gestapo in Nurnberg.
Q. Who gave Ohler his official guidance?
A. The chief of the Gestapo office in Nurnberg, who was at first the higher SS and police leader Martin; later on, a certain Mr. Otto;and after him, one who had been an Oberregierungsrat--chief governor counsel-who had been called from Berlin. I am not familiar with his name.
Q. Who gave guidance to the superior of Ohler, to his chief?
A. I suppose the Gestapo-Leitstelle, Guidance Office in Berlin.
Q. Yes, so that is the RSHA?
A. Yes, the RSHA.
Q. Did you, yourself, have any contact with this Ohler?
A. I met this Herr Ohler through my activity as prosecutor in 1936, through the gentlemen Engert and Buettner. It became that Ohler was from my home territory.
MR. WOOLEYHAN: May it please the Court, the prosecution is merely questioning at this time to what extent it is permissible to bring in personalities and subject matter clearly outside the scope of the direct examination. We haven't objected because we thought perhaps it had some comparative value, but we do object at this time.
THE PRESIDENT: It is manifestly impossible for the Tribunal to know to what this is leading an d we certainly don't want to limit him on anything that might be important; but we merely wish to admonish to not go into matters that do not directly pertain to either the activities of this witness, or to the character, the experience or credibility of the defendants.
BY DR. KOESSL:
Q. During the direct examination you spoke about the fact that Rothaug knew about matters which other judges were not allowed to see.
A. That is correct.
Q. Is it also correct that via Ohler, other than official channels, you found out a let what other judges, and in particular Rothaug, were not familiar with?
A. What I found out via Ohler is exactly that which I can say in regard to Rothaug's connection testified to, his connection with the SD, and in no way was Rothaug not informed about matters which possibly Ohler could have told me.
Q. Do you admit that you personally could explain, many things to the defendant Rothaug because you supplemented Rothaug's knowledge by handing on the information from Ohler to Rothaug. I asked you to give me the concrete facts. I am telling you, did you in every case in which Ohler informed you about something, did you also tell the defendant Rothaug about this.
A. In all matters; what do you mean by that, sir?
Q. Did you hand on current information which you received from Ohler to Rothaug?
A. I, myself, was not a man who was in the confidence of the Gestapo. Herr Ohler did not violate the oath of secrecy toward me. Therefore, Herr Ohler only supplemented the written occurrences by an oral explanation about that in connection with the treatment of the case. I occasionally discussed this with Mr. Rothaug, of course.
Q. Is it correct that in any case many experiences came from Ohler; that other judges did not have access to these sources of information?
A. In that connection, the only event that we could be concerned with could be regarding the monitoring of socalled enemy radio stations. I made the suggestion one might within the Gestapo, at least once a month, give us a lecture, an informative lecture regarding what was said about the propaganda by states who were in a state of enmity with the Reich, or via the radio what they said over the radio. However, Herr Rothaug personally did not like this suggestion because the Reich Information Service of the SD and of the party, Rothaug was informed about this; and because in that direction I wanted to know something about it; we had a need for knowledge, as we were supposed to punish listerners who listened to foreign broadcasts, be we denied ourselves to listen to foreign broadcasts. In any case one should have found out what the foreign broadcasts, the broadcasting stations were saying. It is also suitable to disturb the resistance forces of the people, and I approached Mr. Ohler, therefore, and I succeeded in that the then Police Chief Martin, later SS Police leader agreed to it that via the office of Ohler, we of the Special Court were given a monitoring report, were handed a monitoring report, and not only once but at the most about ten reports; every report about twenty pages long. However, I myself did not sit on these reports, but I also let the other members of the Special Court read them.
Q. Is it true that these reports regarded almost all spheres of life because the enemy broadcasts made it the basis of their broadcasts; that everything was a basis of the Special Courts' jurisdiction?
A. In these monitoring reports we were concerned with as far as I remember, to the best of my memory, with reporting lieterally the statements of the foreign critical authorities regarding the treatment of foreigners in the Reich and above all it was a question of prisoners of war in the Reich; the contact of the German population with the prisoners of war, the transportation system, and I as a Member in particular, the occurrences of certain possible attacks on transportation trains.
Q. Is it therefore true that you were making efforts to get positive documents in order, as a judge, to be able to appreciate the cases in their full significance?
A. Because it seemed of extraordinary importance -
MR. WOOLEYHAN: May it please the Court, the present witness is not on trial here, and the Prosecution objects to this probing of activities outside the scope of the direct examination completely, which have no apparent relevant importance to the activities of the counsel's client. It is more or less a similar objection to the one made previously, but the situation seems not to have improved.
JUDGE BRAND: I think that Counsel for the Prosecution undoubtedly understands that the Court recognized the right of the Defense to attempt as best it can to show that this witness is to be doubted as to his credibility. In other words, they are entitled to show, if they can, this alleged change of attitude of which counsel spoke, owing to the socalled disaster of 1945. I think it is clear that the Court recognizes fully their right to cross examine the witness as to matters of his credibility; and the only limitation that can be put on is a discretionary limitation to the end that the cross examination to credit should not be unduly extended.
Not, what the court is interested in is to impose a reasonable limitation on cross examination which, in effect, attempts to try the witness instead of the defendant, and we do desire that counsel as soon as he can, subject to this reasonable limitation, should cross examine fully as he desires concerning statements made by this witness which relate to the alleged-conduct of the defendant. We do desire to get at it as soon as he can, but we do not feel that we should limit in cross examining to credit.
MR. WOOLEYHAN: That is the Prosecution's only contention -- as soon as possible.
BY DR. KOESSL:
Q. Witness, do you in so saying admit that the rest of the judges, the other judges also, were very well informed about political events and matters, and that thus Rothaug did not have a special position regarding the information which he received in political matters?
A. The favored, position of Herr Rothaug was that the Reich Information Office, that is the party and the SD, gave him their information; sources they made available to him which were closed to us in every case. My attempt via Herr Ohler and Otto to get a limited view into the background was foiled very soon after Herr Martin became Chief of the Gestapo office and was not in any agreement with handing over such information.
Q Did the Information which the SD, that is the Sicherheltsdienst of the Reichfuehrer SS, the Security Service of the Riegsfuehrer SS, did they concern them solves with o-ther files than information which the Gestapo had?
A The monitoring reports about which I was speaking before was -- that was made here in Nuernberg by the state Police office, and was handed on by then, and it was again forwarded to the Reich offices in order to be properly evaluated in the meetings and coucils. Even outside of these counsels, in discussion, Herr Rothaug referred to the treats of the foreign problem, espeically the Polish question. He based his statement on a source of information to which we did not have any direct access.
Q Do you mean by this source of information the SD?
A I know, there was two sources of information: One was called the party information letter or something like that. This letter was received by the medium high effect, office, that is the Oberlandsgerichtspresident and the Public Prosecutor, as a secret matter. We could not see this or discuss it. They were not made accessible to us. And in addition, there was another information service. In the Reichssyab of the SD -- about this Rothaug himself, did not speak very often to be sure, but occasionally.
Q If Rothaug occasionally spoke about the information he received form the SD, what kind of cases was this information concerned with? Was it usually general moral reports about the effects state measures, about the effects of the Fuehrer's speeches, and-so-forth, or was it the information which concerned the individual case?
A In the main, it was a report of the principals of the Reichlevel. This was what we were concerned with. In order to met these, the coordination of foreign workers, in that sense, we discussed this; that on the whole seen in its totality, the foreigner was a constant danger -- presented an extraordinary source of danger, argument, which Rothaug refer red to in this connection, that it was necessary with all severity to meet the already first of exesses.
Q Did this information concerned actual matters, that the insubordination of the Polish workers in the Riech were mentioned?
AAccording to the representation which Rothaug made to us, yes.
Q How did this -- Was this Information distingued from the information which the Gestapo gave you?
A The regular broadcasting monitoring reports, and that is the only thing you could be referring to. They were speaking in a critical manner about the bead treatment of the foreign civilian workers in the Reich. In these reports-monitoring, it was expressed that this treatment should be approved, that there was a contradiction of the argument which we got from Herr Rothaug. And that the information which we received in the future -- I have already said there were about ten such monitoring reports which we were given, and the information which we could gather form them -
Q Were you at any time, of the opinion that it was helpful basis from the judicial activities, that in the manner described, the situation and to be seen as well from this point of view as well as from the other point of view?
A This need for knowledge I had, Yes ,I wanted to know where the actual truth was.
Q Do you mean to say that the defendant Rothaug, at that time, did not have this desire for knowledge?
A From my observation of the actual statement which Herr Rothaug made about these cases which were brought to trial, I gathered and with all due right, that the information which he got from the party office were preferred by him absolutely. That he considered them in the first place because he argued constantly if it was said, for example such insubordination in the place of work -- sexual misdemeanors, attacks on farm wives; he brought up these arguments so often and to such an increased extent, and in that way kept them in balance in his argument, that seen in its entirety measured by the standard of the entire Reich the danger would have to be met in all its severety. All figures which we got in our Oberlandsgerichtsbezirk, in the district of the district court of appeals, was for us, at least, it made us up the question and bring it up again and again for discussion, because we noticed, we thought that such a frequent occurrence -- we could not determine that for our own district.
Q Did you also have misgivings and think about the following question: Why civilian crimes in the district of the special court in Nuernberg occurred to a lesser degree, in smaller numbers?
A Yes, the thought that lead to the assumption that the reason was that they were scared of, that this had been achieved because by the trials which were held in the most remote localities, the reaction of the State could be seen.
Q Was it a fact that the defendant Rothaug was aiming at a contact with the population during these trials, at a close contact with the population?
A The purpose of the trials at the locality where the crime occurred was always regarded by Rothaug as an absolutely propagandistic purpose to the effect that he said that people should see that after, we according to the principals -- he quoted a sentence from the Bible, " My father trianed you with a whip; I shall train you with scorpions."