THE PRESIDENT: Counsel has pursued this line to very great length and we think that different lines should now be pursued.
BY DR. KOESSL:
Q. Can you remember cases during which Rothaug, concerning a number of sentences, wanted to judge then in a minor way, and one which he won with his view.
A. I think perhaps I may be able to give you the right answer if I remember that these foreigners were to receive different treatment who had committed an offense under the Malicious Acts Law for abuse of Adolf Hitler or for contempt statements about any institution when it was said one must remember that these groups of persons had no particular relationship of loyalty towards the German State and that therefore they should be given a more lenient treatment.
Q. In that case, Rothaug took sides with the foreigners?
A. Since the end of 1940, that concerned civilian workers from the western countries.
Q. Can you remember how Rothaug introduced was to view every case of black slaughter on a commercial basis was to note out severe treatment to a black slaughter on a commercial basis than that type of black slaughter which had been done on a farm, and which was only intended to give better food to the farm workers.
Q. In this case too, Rothaug was in favor of a more lenient judgment than was generally considered correct?
A. Tothaug's altitude had been recognized. I can not make any comparisons.
Q. Can you give us further groups of offenses where Rothaug was in favor of more lenient judgment and did actually pass more lenient judgment?
A. At the moment, I don't know.
Q. With reference to the matters concerning soldiers -- the question of adultery committed by soldiers -- the special court at Koenigsberg got publicity because it considered that an offense committed by an enemy of the people -- and that point of view was discussed in literature and it was not accepted by Rothaug either.
He thought that a more lenient view was more appropriate. Can you remember an occasion where Rothaug, concerning the black slaughtering penal regulations, did not want to apply those because it was only a minor case?
A. I vaguely remember something like that concerning a theft. It was of importance in that case as to whether paragraph 2 of the Public Enemy Law concerning an offense against somebody else's property -whether that paragraph should be applied or whether it should be paragraph 4 which provides expressly that a contravention does make its application necessary.
Q. Did Rothaug abandon the death sentence concerning squad collection, although it was possible there to pass the death sentence?
A. That is a later case on the Baerenschanzstrasse.
Q. Yes
A. I believe I was the public prosecutor in that case.
Q. Can you confirm to me that in German science as well as in German jurisdiction, the treatment of the punishment during war was expressed only incompletely and insufficiently?
A. That is correct.
Q. Can you confirm to me that therefore the extent of the punishment in Germany had formerly always been neglected and that there were discrepancies which went too far?
A. That is emphasized in the speech by Reichminister of Justice Guertner in 1939 during a conference at Berlin of the presiding judges of the people's court before the outbreak of war. Guertner said there that the reply of the penal judge during war must be different from that to which one had been used to in former times in peace.
Q. Did Rothaug try to eliminate all discrepancies in the treatment of cases and can you confirm to me that Rothaug did try to establish legal security by trying to pass the same sentence in a similar case?
A. Yes, I can confirm that.
Q. Can you tell me whether the judge, in considering the type of punishment and the degree of punishment, was able to act quite arbitrarily or whether here too he had to observe the provisions of the Law?
A. The principles were laid down by the special penal senate at Leipzig -- the general penal senate -- gradually since 1940 through the publication sentences, it was made clear when a case was to be considered particularly serious within the meaning of paragraph 2 or whether when under paragraph 4 of the public enemy law, the sound sentiments of the people would demand that the ordinary punishment of war should be exceeded and that the offense was to be considered more serious.
Q. How I will turn to the Gaishauser case. How was it that the witness Gaishauser, according to your description, after his arrest by a policeman was still carrying a knife?
A. The -
Q. Just a moment. Do you know that the police has an official ruling saying that every person who has been arrested must immediately be searched for weapons?
A. The policeman who had been stabbed had a trial himself because he had neglected his rules.
Q. Did he not say at the time that he had searched the man?
A. He said that knife had evidently been hidden so well that he hadn't found it.
Q. Did he not say that he had taken the knife after he was searched?
A. That he must have taken the knife after he had been searched. It was the opinion of the policeman that he had searched Gaishauser so thoroughly that he could not explain it himself in any other way, that when leaving the kitchen, Gaishauser might have appropriated that knife.
Q. I am asking this question because during the examination, you have said the examination of the witness which gave evidence on the state of frankness had been in the center of that trial.
MR. WOOLEYHAN: May the Court please, the prosecution objects to this line of questioning. It appears to us to be completely irrelevant to the points raised concerning the Gaishauser case in the direct examination. It is completely irrelevant; it is entirely a collateral matter having no bearing on the points listed.
DR. KOESSL: May it please the Court --
THE PRESIDENT: Whether this man had a knife after he was arrested and searched is entirely beside any issue in this case. At best, it throws no light upon the issues. It isn't proper cross-examination.
DR. KOESSL: May I briefly explain my view?
THE PRESIDENT: No, I think we understand it thoroughly.
BY DR. KOESSL:
Q. Witness, were the facts as follows? The witness you quoted was she the only witness who was able to make a statement on the point as to whether Gaishauser was drunk?
A. This is what happened. For judgment of Gaishauser Landgerichtsarzt Dr. Schuhmacher --
Q. (Interposing) Just a moment. I will come to that later. I now only want to hear about the witness who made a statement on the state of drunkenness. Was the innkeeper's daughter the only witness who was able to give testimony on the point of drunkenness?
A. She was the only witness who did give testimony on that point.
MR. WOOLEYHAN: May it please the Court, the answer to this question is already in the record. It appears who gave expert testimony on the state of drunkenness. That was elicited during the direct examination. Why must we dig it up again now?
BY DR. KOESSL:
Q. What facts was the witness able to give?
A. This witness testified that she had watched Gaishauser on his way. She had watched him while he was walking and I believe she had also watched him while he was talking. Because of her general observations as an innkeeper's daughter, basing herself on those observa tions, she made her statements such as they were taken down by the policeman in the records, and she said Gaishauser had been intoxicated.
At any rate, he had not been sober.
Q. Was this statement --
THE PRESIDENT (Interposing): To go into detail on all of the testimony in each of these cases to show that sometimes Rothaug was right and sometimes that he was wrong does not prove anything. Any man can be right part of the time and wrong part of the time. The question in this case is, was Rothaug's general demeanor that of too great severity. Now we can't take the time here to inquire whether in each instance the testimony was such that Rothaug might have been right or that he might have been wrong; it would extend this case to an interminable length. That question - well, he has answered it, but let us have no more questions of that nature.
BY DR. KOESSL:
Q. Rothaug's objection to the statement by that witness, under the penal code of procedure of that time, was it justified or not?
A. Yes, it was based formally on the penal code of procedure.
Q. As to the points to which you objected in the treatment of that witness, they did not concern the point as to whether Rothaug was justified in his procedure, but they were only concerned with the manner in which he fought the witness?
A. I believe that is what I said.
Q. In the direct examination that did not come out clearly. After the examination of the witness was there an impression, and was, in fact, the state of affairs such that one could think of a limitation of the defense?
A. I can only speak for myself, and my impression was this: What will the expert do with his expert opinion on the basis of the statements made by this witness at the trial and on the basis of the former statements at the police, the expert's opinion on which had been included with the files? Will the expert maintain this opinion, will he amend this opinion, or will he make a motion that Gaishauser should be kept under observation for some time?
Q. Did the expert have all facilities to observe the case?
A. As regards time, yes, certainly, because between the committing of the offense and the trial he had time to work out his expert opinion in writing. Whether the facilities for medical examination in prison were sufficient --
Q. (Interposing) Was the expert present at the entire trial?
A. Yes.
Q. Did he himself put questions to the witness after Rothaug had questioned the witness?
A. I don't remember, but I don't think so.
Q. Would it have been possible for him to put such questions?
A. Yes.
Q. Did Rothaug at any time make it possible for the public prosecutor and the defense counsel to put questions to witnesses and to experts?
A. Yes.
Q. Can one say, therefore, in summarizing, that Rothaug, by his manner of conducting a trial, curtailed the possibilities of defense and the producing of evidence by the defense?
A. In the case of Gaishauser?
Q. Yes, in that case in particular and, generally speaking, in other cases.
A. Generally speaking, I myself know --
MR. WOOLEYHAN (Interposing): I object to this question as being a patent request for a personal opinion of the witness.
THE PRESIDENT: The witness was just about to give an answer as to his general attitude and it does seem that part of his answer would have been very pertinent. Of course, that part where he was speaking of Rothaug's particular conduct in this particular trial is something that we have already ruled out, but he was trying to say something of his general attitude, and personally I would like to hear the answer to that.
THE WITNESS: Defense counsel had told me frequently that the defense counsel regarded the treatment of their desire to obtain further evidence - they considered they were being curtailed in that, but they generally felt themselves curtailed because their offers to submit evidence in writing before the trial were rejected by Rothaug.
He considered the summoning of this or that witness as irrelevant. Therefore, in general, I cannot answer your question in the affirmative, that is, your question that Rothaug was generous in offering facilities for evidence, but that he curtailed the defense in producing such evidence. I only know all this from the mouths of the defense counsel.
BY DR. KOESSL:
Q. Can you state cases at which Rothaug rejected a motion for evidence, although that motion was formally admissible and was relevant?
A. I cannot answer that off-hand. I shall have to think about it and I shall be glad to revert to it later.
Q. Do you remember cases during which the defense counsel made complaints because their action had been rejected?
A. I just remembered this occurrence. A defense counsel, concerning Landgerichtsarzt Dr. Schuhmacher, made representations to Rothaug, through his office, because the expert, in his written opinion, dealt with matters which exceeded the purely medical sphere by far. It was a case of questions typifying the defendant, concerning his race, whether he belonged to the Dinarian race. It also dealt with the social prognosis and beyond. The expert expressly chose - the defense counsel said that the expert had become political and had not restricted himself to forensic medicine.
In that case Rothaug rejected the complaint by the defense counsel, nor did he admit a new expert opinion because, as he said, it was the task of the district court medical officer to support the legal opinion, or the legal findings, by his opinion.
A complaint, I think, by Grower, was not handed on because the physicians to the Special Courts were incontestable. At the session he sent a deputy and no further differences arose from the matter.
THE PRESIDENT: We will adjourn now for our usual noon recess. We will adjourn at this time until 1:30 this afternoon.
(A recess was taken)
AFTERNOON SESSION
DR. CARL FEBER - Resumed CROSS EXAMINATION (Continued) BY DR. KOESSL:
Q You were just speaking of the denying of an application for submission of evidence; a refusal of submission of evidence; I am asking you if the refusal to accept the evidence, would not the rejection at least have been a reason for the reopening of the case, that is I mean a condition which could bring about a reopening of the case?
A If, during the first trial, the main trial, in general the export was well enough informed or thought that he was well enough informed and that from the conversation, I am referring to the conversation before the recess, then if the defense counsel did not again open the question of the application, then the prosecution also had no reason to reopen it or to take any steps in order to reopen the case.
Q Did you want to say anything more?
A No.
Q You have found out here the rules of procedure for this Tribunal. Please compare the position of the prosecution and of the defense, in a German trial, with the position of the prosecution and of the defense here in this trial. In a German trial does the defense have the same position as the defense has in this trial?
A No.
Q Who in a German trial is in charge of the submission, of the acceptance of evidence?
THE PRESIDENT: Nothing would be gained by comparing the procedure of this trial with the procedure of other trials, and, we therefore decree you should not proceed with that line of questioning.
DR. KOESSL: I believe that the President did not understand me correctly. I just wanted to say that the defense counsel in a German trial, according to the German rules of procedure, of a penal court does not play as important rule as the defense counsel in this EnglishAmerican trial. I do not believe it is an insult to this trial.
THE PRESIDENT: Even so, it is unimportant in this inquiry to make that comparison.
BY DR. KOESSL:
Q You said that in the course of the trial Rothaug had already laid down his opinion, or had already decided how he would sentence the defendant in this case. Can it be said that this prospect, this insight into the attitude of the presiding judge in a German criminal trial was much easier to find out because the presiding judge himself was in charge of the taking of evidence?
A The presiding judge is in charge of the taking of evidence during the session. However, if a defense counsel one or two days before the trial starts has received a call as in the Grasser case, that he was asked to go from Room 581 to Room 600, that they are appointed defense counsel by the court, the change of the date of the opening of the trial is not in question; then in this case and in similar cases the defense counsel sees that is a laying down of the attitude of the presiding judge regarding the criminal law and in this way Rothaug puts himself on one side. Even, if for example, he returned the files to the prosecution with the remark on the files I have appointed a defense counsel for the court; I am still trying to get an expert opinion on the files because we have to count on a death sentence; or a violation of Para graph 4 of the Public Enemy Order; or because this is a particularly severe case; or that it is to be expected; that is how I always expressed it.
Q How does the legal point of view and the hint of the presiding judge to the defendant that a stricter penal law is possible; that the application of a stricter penal law is possible. Do you regard that as such a free statement?
AAccording to trial procedure, an indictment which has been submitted by the prosecution, if that has been received the presiding judge either has to set the date of the opening of the trial or he has to decline it for very important reasons to set such a date. This corresponds to the practice that a change in the legal point of view, on the basis of receipt of evidence, or the submission of evidence, must result, but above all that there will be no special difficulties or more serious considerations if acts with Reich Ministry of Justice, or at the Judge of the People's Court, or the Chief Public Prosecutor of the People's Court; and I returned from there because in regard to the competency of the People's Court a special criminal act which belongs within the competency of the People's Court will not be accepted by the Special Court or by the Reich Ministry of Justice, or that the trial shall be conducted according to the malicious acts law. I am saying that this does not generally correspond with the general practice of the judges to lay down a way which must be followed; that there is a special discrimination according to legal points of view without having a group of judges decide about it in advance.
Q You seem to be referring to the case Grasser.
A Yes, there are others too; there are more; case Grasser, case Kleinlein, attorney Escher; then changes in tho date on short notice; those happened several times.
Q I would like to discuss with you the case Grasser. Where was the case Grasser before it came to trial before the Special Court Nurnberg?
A The case Grasser had been submitted first by the prosecution to the Chief Public Prosecutor at the People's Court Oberreichsannalt.
Q Just a minute, witness.
A The prosecution here in Nurnberg. The Public Prosecution here in Nurnberg because Grasser once upon a time had been convicted in Munich, sentenced because of preparation for high treason. The new submission had as its purpose the competent expert at the People's Court, and find out whether he was interested in having the case Grasser in view of the grave offense of Grasser. The case Grasser was returned and the Public Prosecutor Nurnberg obtained; the order from the Reich Ministry of Justice to the Prosecutor according to the malicious acts law. The case Grasser came as a malicious acts case to the Special Court in Nurnberg.
Q The case Grasser, however, was by the Reich Public Prosecutor, the Reich Prosecution in Berlin had it transferred to the Public Prosecution in Munich.
A Yes, that is correct.
Q. Why was this Grasser case not treated any further in Munich?
A. The Munich Penal Senate could receive the cases from the People's Court according to the discretion of the competent expert of the Oberreichsanwalt at the People's Court at Berlin. If then the General Public Prosecutor at the District Court of Appeals Munich had received a commission to handle such a case and had decided to appoint it to the prosecution, then this decree or this order was within the framework of his competency and had to be regarded as though the case had already been returned from Berlin to the Public Prosecution.
Q. Do you still remember with what directive the Chief Public Reich Prosecutor had turned the matter over to the General Public Prosecutor at Munich?
A. No.
Q. You don't remember?
A. No.
Q. Do you know why the General Public Prosecutor in Munich referred the matter to the Special Court in Nuernberg?
A. As far as I am informed about the matter, because preparation for high treason was not accepted - they didn't want to accept it as such.
Q. In the discussion about the question of guilt on the part of Grasser did the question come up also as to whether the original question, the entire complex under indictment, or whether only a part of this original entire indictment should be sentenced or judged in the case?
A. I don't know about that any more.
Q. Do you know perhaps whether the question concerned was whether the subjective facts in the case Grasser went beyond the facts necessary for prosecution under the Malicious Acts Law, whether therefore --
MR. WOOLEYHAN: May it please the Court, the prosecution submits that defense counsel at this time is by specific statements and suggestions attempting to elicit an answer from the witness to a question which, by the preceding question, he stated he did not know. Moreover, the prosecution objects to the seeming irrelevancy of this entire line of ques tioning with regard to refinements of procedure and occurrences in the case not elicited by direct examination which apparently have no probative connection.
DR. KOESSL: May it please the Court, during the direct examination it was maintained that in the discussion about the Grasser case there were considerable differences of opinion regarding the law under which he was to be tried. These differences of opinion about the applicable law did not occur only in the main trial as late as that, but already were the subject of the examination of the Oberreichsanwalt and the Generalstaatsanwalt in Munich. Thus the defendant Rothaug was not confronted with the facts which were described in the direct examination, but there were very considerable reasons, important reasons, for Rothaug to consider the case from a larger point of view, and under the point of view of the heavy and more serious facts to examine it. I therefore request you to let me continue my line of questioning because perhaps the witness can clarify one or the other fact. If, however, the Tribunal is of the opinion that the case is suitable for discussion when the witness Doebig is called, I am ready to do it then. I only wanted to be able to get an answer from the witness of things which he actually knows.
THE PRESIDENT: It must be apparent that defense counsel is a little mistaken about his last statement. He is really getting the opinion of the witness concerning the conduct of a certain trial and as to whether the law was properly administered and properly interpreted and applied to the indictment in that case. Now if we would go into every case that was tried before the People's Court while Rothaug was presiding officer or connected with the court, or if we would even go into those details in every case that was brought up by the prosecution, we would take a great deal of time and not advance the cause appreciably, if at all. We think that we should not go into that detail, getting the opinion of this witness as to whether the right results were reached in this or that or the other trial.
DR. KOESSL: I shall confine myself to two or more questions only in regard to this case.
With the agreement of the President I shall ask a few more questions of the witness.
BY DR. KQESSL:
Q. Witness, what was the decisive point in the discussion with the Landgerichtspraesident Doebig, District Court President Doebig?
A. The decisive point was the following: The chief judge of the District Court injected himself into these proceedings in order to achieve that the death penalty and the application of Paragraph 4 of the Public Enemy decree would not be applied. That was the decisive point and the president of the District Court at that time did not speak about it in the council chamber that he had the order from the Ministry - that he was acting on orders of the Ministry. That became apparent outside of the council chamber by means of telephone conversations between the Chief Public Prosecutor at the General Public Prosecutor's office by the name of Engert, the expert in the Ministry, and between Engert and Doebig.
Q. Was not the fact that the Oberlandgerichtspraesident also had a different opinion than Rothaug a possibility for the associate judges to divest themselves of all inhibitions? Did that not give them that possibility? Why did the associate judges in this case in which the opinion of the Oberlandgerichtspraesident also differed - why did they in spite of that maintain the opinion that Rothaug had, too?
A. After the president of the District Courts of Appeal Doebig had left, Rothaug first attacked Doebig. According to all external appearances he was right, because per se it is an unusual procedure if an administrative chief enters the council chamber of the judges. That the Ministry was in back of Doebig was not obvious to us. At first Herr Rothaug asked for the agreement of Herr Gross, who was at that time reporter, and he achieved it in this way. He left the matter Doebig and discussed it in a general state political point of view, that here one should not act in accordance with the opinion of an administrative lawyer in the administration of justice, and I ask you not to overlook the tem poral conditions.
In the spring of '42 the decision of the German Reich --
Q. You didn't mention that.
A. That belongs in this context. From the 26th of April 1942 the Reichstag supplied the background to enable Mr. Rothaug to say decisively, we have to consider the question, how would the Fuehrer decide here? And about this political philosopy which Mr. Rothaug led, and in this manner it happened that Gross thought at first, Well, yes, of course we don't want any scandal on the type of the Oldenburg scandal. We don't want to provoke that. And from this there resulted the further discussion on the clemency plea.
MR. WOOLEYHAN: May the Court please, I find it hard to distinguish any difference at all between the answers now elicited and those elicited on direct examination. They seem to be apparently the same answers.
THE PRESIDENT: Of course, you can't control the answers. And yet they seem to be responsive to the question up to a certain point. The answers are entirely too long and go way beyond the question, it seems to me. Couldn't you have an abbreviated answer rather than to have a long discourse in answer to each particular question? But I am afraid that the questions do elicit the same answers.
It maybe the questions are not intended to elicit the same answers, but it does seem to us that they are in fact eliciting the same answer. If there were some way to get something new rather than to have a repetition of that which has been already gone over more than once, it would have been very helpful to the case.
BY DR. KOESSL: I shall now open a new line of questioning.
Q Witness, in the direct examination you often mentioned the relationship of Rothaug to the S. D. Which persons of the S. D. were connected with Rothaug?
A It is known from telephone conversations: the chief of the S. D. Division in Nurnberg. His name was Friedrich; a certain Mr. Elka, who once was an assistant judge. Then beyond the borders of Nurnberg: an S. D. chief of Regensburg who received reports of the trials regularly; an S. D. associate worker in Amberg; and a trusted S. D. man in Cham. These are the people I knew.
Q What questions were discussed between Rothaug and the representatives of the S. D. whom you named, as far as you know?
A Partly Rothaug mentioned that he had reports at the S. D. about the echo which meetings of the trial sessions of the special court in the district evoked. He said that also from the Reich, certain constellations from the justice department were criticized and in this connection the special courts from our neighboring towns, Munich and Bamberg; beyond that, Rothaug occasionally let it be heard that with the S. D. he did some work, some writing, and made some criticisms. I remember very clearly the submission of one or two sentences of the special court Saarbrucken.
Q Do you mean to say by your statement that in one or two cases the S. D. submitted to Rothaug a sentence and that Rothaug stated his attitude from a legal point of view?
A Rothaug said that he had been given the task in regard to these two sentences not so much from the purely legal point of view, but from the philosophical point of view to criticize them because politically speaking these somewhat lenient sentences were being objected to.
Q Now what did Rothaug do as far as you know?
A The activity at the S. D. -
MR. WOOLEYHAN: May the prosecution interrupt to inquire whether or not the frequently recurring word "philosophical" as it comes over our headphones should not in fact be "idealogical"? Is that correct?
INTERPRETER: Yes.
MR. WOOLEYHAN: Could the record be made to so appear?
THE PRESIDENT: I don't know how the record can be changed at this time, but it should be corrected of course since the translator says it should be "ideological." Since what I have said goes into the record, correction will thus be noted in the record.
Q What now did Rothaug actually undertake? What did he do with the S. D. in regard to these sentences in Saarbruecken?
AAs he told us, he stated his opinion in writing in regard to these two cases. Since, however, his assistance in the S. D. per se was supposed to be kept secret, in this building there were people who appeared to be collaborators as workers in the S. D. and I had no idea that they were. Therefore, Herr Rothaug did not state any details about his work in the S. D. Even in Regensberg and Amberg, those people were there always avoided. When we were sitting at the table in the evening together to designate themselves as S. D. people, we knew it because Rothaug himself had told us that.
Q What observations did you make about the activity of these people?
A I know that in two larger political penal cases in Amberg, the defendants, through an "agent provacateur" had been caused to leave a certain political reserve.
Q Just a moment. Was Rothaug important here?
A In the trial, this appeared quite obviously without unequivocally to the S. D. in Amberg on the evening before the trial. I can still see the man before my mental eye. He worked in a savings bank. He approached Rothaug and asked him that during the trial Rothaug should create the impression among the general public that the witness, the provacateur, the one that denounced him, that he was not denounced. One who was in the policie, who served for the police, but that he was doing a task for his country -- patriotic duty -- if he revealed the other person.
Q But here there is nothing apparent which would not agree with the conclusions that you and the other associate justices also drew?
A What conclusions?
Q In the direct examination, you made it apparent that one could not feel secure because Rothaug was cooperating with the S. D. Now, in your entire statements about the S. D. and about Rothaug, I do not see any hints -- any indications -- which would justify this fear. Can you tell me any one thing that Rothaug did with his S. D. connections in order to intimidate you or was somebody put in an unfavorable position because of the S. D. collaboration?
A The break between Rothaug and the administration would probably not have become so deep if Herr Rothaug did not have at his disposal some extraordinary background information about the S. D. and the Party, but that stands in the background. It is not important. I want to say the following: in the discussions, even when public prosecutors came before the submission of the indictment, for example, and if they discussed cases with Rothaug -- whether they should be indicted or not before the special court -- there were a variety of opportunities from Rothaug's own mouth to learn that he was informed about the problematic-not something like broad case monitoring which reported about the past, but the attitude toward the foreigners, the attitude toward the Poles, the general treatment of the asocial persons; that just from this point of view, he had a knowledge and a source of information which was not at our disposal, and he never made any bones about it.