Via the S. D. Abschnitt, Herr Friedrich and Herr Elka, he got this information.
Q But, witness, if the defendant Rothaug merely was informed about the overall directives of the policy, which however could be obtained also from every article that Freisler wrote in the newspaper, how could the associate judges then look upon the S. D. as a black hand or as a means of creating fear? I am only anxious to find out which action of Rothaug's justified to see in him a dangerous man with dangerous connections. With these explanations, you did not plan that to me. I think you can answer that very briefly; other explanations are not necessary.
MR. WOOLEYHAN: May it please the Court, the entire line of questioning concerning the S. D. in aspects as general as those here treated just now were completely covered in the findings and judgment of the International Military Tribunal and could be, if the prosecution sought to make a point of at at the moment, be tendered as a matter of judicial notice. The prosecution objects to eliciting a matter of such public notice again at this time.
THE PRESIDENT: Mr. Wooleyhan, it isn't clear to my mind, after several days lapse of a long line of direct and cross examination intervening, whether you, in the course of your direct examination, went into the matter of the influence of the S. D.
Mr Wooleyhan: If Your Honor Please, I went into the activity of the SD only in so far as it was necessary to show or attempt to show the connection and activities of the defendant Rothaug in connection therewith. I did not go into the general over-all intimidating nature or lack of intimidating nature of the SD in general. That is a matter of public record.
THE PRESIDENT: For the moment we will not interfere with the line of questions.
BY DR. KOESSL:
Q. Thus, witness, please tell me very briefly of the fear-creating matter in the relationship of Rothaug to the SD. That is, the fear arousing.
A. In the general experience with the SD here in Nurnberg, especially in the spring of 1940, as I have already mentioned here in the court, this man was sentenced by the special court. He was sentenced to three years in the penitentiary. After a short time, the man was reported in the newspapers as having been shot because of resistance. It was just a short time after.
Then I also went to Mr. Ohler, whom you mentioned -- Mr. Ohler of the Gestapo -- and I made inquiries as to how such an occurrence could be explained. This Herr Ohler told me this at that time. He explained to me that the Gestapo did not object to this sentence or want to revise this sentence in the Gestapo way, but wanted it to be revised in Berlin. He said, "There are other offices for that purpose." Ernst von Rast Strasse is the street where the SD is, and Ohler referred me to that.
Not only Haeffner was shot. Here in Nurnberg two further people, in the course of 1942-1943, allegedly because of resistance, were shot. If a Pole was hanged because he was in some sexual contact with a German woman, then the SD always played a role in that in a decisive manner. In trial sessions -- I remember in the Lepada case in Neumarkt, in the Town Hall, it was Herr Rothaug who described very realistically to the population that normally in our living space such a Pole was just hanged without any further ado by the competent offices.
However, that is not in such a trial. With the evidence, the relationships which became apparent to us, which he maintained currently, and by telephone calls, in regard to special trials, they pointed out that if Herr Friedrich and Herr Elka wanted to find out about a matter, one was justified in the conclusion that his cooperation with the SD was a fact.
And it was a fact indeed.
Q. Was Elka, whom you mentioned, frequently in Rothaug's office?
A. Yes.
Q. Was Friedrich in Rothaug's office?
A. Twice. I saw Friedrich twice in the Palace of Justice in Rothaug's office, in room 138 downstairs; in that room.
Q. Is it correct that Elka was an official of that court?
A. Before his entry into the service of the SD.
Q. Did Rothaug discuss with you confidentially his contact with the SD, on walks, for example?
A. On official trips to outlying territories to any locality, there was a necessity to stay over-night. Of necessity, by such being together, there were opportunities -- as you say, a walk. I remember once near Kahm, and also once near Weiden, when such matters came up in the discussion.
Q. In these confidential discussions, were any matters unclean matters which aroused fear -- were they spoken of?
A. No. Unclean in that manner? No. As though Rothaug would hang somebody there? NO, no.
Q. Did you have the opinion altogether that Rothaug had anything to do with such things?
A. I was convinced. Not an opinion; I was convinced. I had the conviction that Rothaug within the SD, was working in a leading role to formulate and help in the drafting of laws. Once there was a question that Himmler was supposed to take over the administration of justice, of criminal prosecution. At that time there was a ridiculous suggestion that our sentences had to be confirmed by the police authorities.
I would like to say that my conviction was as follows:
Herr Rothaug did work of a higher level within the SD, which in its aims was toward the top.
It did not concern itself with trials of a local nature, with bagatelles.
May I say one more thing? State Minister Guertner was reproached because, on the occasion of a speech, he once said "Reich Chancellor" and not "Der Fuehrer". Such matters were on the borderline, and even by Mr. Rothaug, were only criticize with a smile. That did not interest him; he wanted to do something on a higher level.
Q. Did you make any observation whatsoever that the SD, in an individual case which was in Rothaug's hands, had anything to do with it; that is, that the SD had anything to do with it? I mean to say by this, that it entered into the jurisdiction of the case; entered into it and took a part in it, interfered with it?
A. You mean taking a part, or interference in the sense of a correction? No. However, one had the impression, for example, ostensibly in the case Katzenberger, that there was a corporation of a political nature, of political and SD forces. With Mr. Rothaug, from the very beginning, they cooperated, on the basis of telephone conversations.
Q. We shall treat of this case later on. Now I would like to go on to toe case Englbauer.
Did you, as public prosecutor, have any doubt in the case Englbauer as to whether Englebauer was the one who committed the deed? That is, whether Englebauer had committed the crime of which he was accused?
A. Not even the defense counsel doubted this, and of all of us who participated, no one had any doubt that he had committed the crime.
Q. Was the use of the blackout regulations -- that is, paragraph 2 of the Public Enemy order -- was that doubtful?
A. Only on one condition, namely, the following condition. Why did Englbauer appear for the first time in the City of Neumarkt? I would like to explain this. Police Chief Birk was of the opinion that Englbauer, after committing the crime, took the robbed pocketbook and threw it into the Ludwig-Donau-Main Canal, near Neumarkt. If he did so, then he must have made a big detour, gone in circles, and he then came to some part of the City of Neumarkt, or the Town of Neumarkt, possibly. It was not very obvious, or would not arouse any attention, so that it would not have made the hiding of the robbed article any easier.
The court was convinced that Englbauer went to Nuernberger Tor, which was nearest to the place where the crime was committed. If that is supposed, taking into consideration the question of the blackout regulation, it was in no case doubtful.
Q. During the crime, did Englbauer draw any advantages because of the blackout?
A. I don't understand you.
Q. Was the crime made easier or facilitated through the blackout?
A. Well, in legal theory and practice they are separate.
Q. That is not important here.
A. You mean only the place of the crime?
Q. During or immediately after the action.
A. The place where the crime was committed itself was, under normal conditions, in darkness.
Q. You do not have to explain all that, only to what extent was this -
A. (Interposing) Only as one supposes that he returning through the gate and through the Nuernberger Tor, and if one further supposes that the windows from the front entrance of the hospital were kept closed or were being kept closed by the people who lived there, because if they were opened there would have been some light from the windows falling on the outside.
Q. Now, I want to go onto the question: What contacts between the judges of the Special Courts and the Public Prosecutors existed? You maintained that the relationship between the prosecutors and Rothaug took on a different form because the Oberstaatsanwalt Schroeder, Chief Public Prosecutor and the defendant Rothaug were friends.
A. Yes.
Q. What actual measures can you now show or mention which as a result of their friendship, was caused by the result of their friendship, and which meant unusual treatment of these cases concerned?
A. The most obvious cases was that the Public Prosecutors got their directives for the conduct of a case, which had already been opened, they did not go to get these directives from the Oberstaatsanwalt Dorfmueller, but especially from Markel and Hoffman whom I remember very vividly. Even on official trips to outlying territories, they took with them such primary investigations, and reported them to Mr. Rothaug. Thus, at my time, when Herr Denzler was Chief Public Prosecutor -- Herr Denzler jealously guarded his position, that it should not be under-minded, that already with him, as the chief Oberstaatsanwalt Prosecutor who had to be responsible for this to the higher authorities, that contact had to be maintained with him.
At the time of Herr Groben on the other hand, this changed considerably, and I will be glad to admit or to grant that it has something of a good test nature. If the public prosecutors, themselves, investigated on their own initiative, and that their relationship to Herr Rothaug, that he was like the Kaiser of Manchuria, and he the tenor.
Q. Were there any illegal acts contrary to the law -
A. (Interposing) Counsel, you will know that especially in the circumstances else - where of the defense counsel- when mentioning the presiding judge of the Special Court and the Prosecution would be regarded very much with misgivings and criticized. I do not want to speak about myself, but my attorneys, not those who are enemies of Rothaug, but even those who were in good agreement and good standing with him, they also said the attitude of the Prosecution according to proceedings of the trial were as follows: To find out everything which could be said in favor as well as against the defendant, and they thought through this influence the defendant in his defense positions, that he would be getting the short end of the thing.
Q. You spoke about discussions between the Prosecutors and the defendant Rothaug or the Judge and the defendant Rothaug, Rothaug did not admit any other altitude, and in such a discussion once he answered Amtsgerichtsrat or Landsgerichtsrat Groben, Judge of the local court or district court - can you remember whether this occurred at the court trial session or outside of one?
A. This occurred in his office, outside of any trial session - just merely a discussion.
Q. Do you still remember whether this conversation between Rothaug and Groben was about a legal question which had already been solved by the highest legal authority or was it an entirely now question which had to be discussed?
A. This question of Groben's was not now -
Q. That is enough . I believe - did you, in contact between the judges and prosecutors which is well known - had been ordered from the top, by higher authorities -lid you find something extraordinary, unusual in Nurnberg with this contact? Was this contact different in Nurnberg than in other courts as far as you would knew about it? From your experience?
A. Yes, at the meeting in Jena, that was in 1939, in Strassburg in 1942, one met always with other colleagues sufficiently - in one case I was prosecutor and in the other I was the judge, and the difference consisted in this. Otherwise the change of opinion between the prosecution and the court had been guided into the form by higher authorities; that the Landgerichtspresidcnt or Oberpresident had to order a meeting, a discussion with the experts of the prosecution, the department head of the prosecution, including the department head at the general public prosecutor's office. They were supposed to explain their opinion to the Ministry and the opinion which the Ministry handed down or announced -- then, it had been provided that the court had to take judicial notice of this, and to consider objections which could have brought about that the date set for the trial would be changed and a new report made or to make a suggestion to refer the matter -- a case not to a special court, but to a penal chamber and such things. That was a desire to buy the administration - in the administration of justice in guidance and in this way, after 1933, until the end of the war, that is how I experienced it here in Nurnberg.
The opposite to this state of affairs was Herr Rothaug who about 1940, had such guidance and discussions with the Oberlandesgerichtspresident Doebig - he reported them as unsuitable, that he did not consider them necessary and he declined them with the words, "If any one dies, I do it." and, thus the guidance of the penal procedure, penal law, was from the Ministry from the top, was not at all of the extent that it was elsewhere because Rothaug just asked the prosecutor what did you report? What is the opinion up there. And, in connection with the preparation of a trial, and, if then it did not please him, the prosecutor submitted to Rothaug a statement, an opinion, and he acted contrary to the guidance of the Ministry. That went to such an extent in the case Grasser, that the department head, the experts in the Ministry stated, if Rothaug insisted on pronouncing the death sentence, obviously then the prosecution will have to ask for the death penalty.
Q. But, Witness, did you ever, in your life, hear an order or regulation of the Reich Ministry which was in the form -- if a judge at any district court has any different opinion, whatsoever, then not the opinion of the Reich Ministry of Justice but the opinion of the judge. Does that sound so unbelievable, Witness, that I have to tell this to you?
A. Counsel, I admit, I grant you, that for somebody on tho outside, for tho naive, that is something new.
Q. But, the telephone conversations, did you hear them, yourself?
A. Immediately after the meeting, the trial, Staatsanwalt Engert told me that already at this time, and said the department head stated:
Well, the Gauleiter is in the meeting. Yes, Herr Rothaug makes it a point that he wants the death sentence. Yes, and that was the second telephone conversation, and the public prosecutor Engert was around because the general public prosecutor Benz was on an official trip and he wanted the application of the public prosecutor in the session to be accepted. The department head said later that I do not want any difference between the sentence and the application, and that the opinion of Rothaug is decisive. The rest would come about alright. That is the case Grasser.
Q. Is it correct that this Grasser, of whom you were just speaking, a brother-in-law of a very big shot in the party in Nurnberg?
A. That I do not know. I didn't hear anything about that.
Q Well, did you object to the fact that he as presiding judge -
A MR. WOOLEYHAN: May the Court please, might we ask for a clarification of what is meant by the word "application". A moment ago it was stated that a directive was made that there should be no variance between an application and a sentence. Now, I can't think what an appplication could be unless it was either the indictment of the prosecutor, or the plea; one of the two.
THE PRESIDENT: The Prosecution has asked to know what you mean by the work "application", and I think it is proper that he should have an answer to that. what do you mean by the word "application".
JUDGE BRAND: Witness, didn't you mean to say that the sentence and the pleas of the prosecution should coincide; in other words, that the request for a sentence and the sentence should be the same?
A Yes.
BY DR. KOESSL:
Q May I continue. You objected that Rothaug determined the time of the trial himself independently; that he decided what judges were to sit on a trial; that he determined who should write the opinion; that furthermore, decisions of the Court, written decisions, that he had them written out and that he had them signed. Please answer the question. Did Rothaug in so doing fulfill his task as presiding judge, or did he exceed them?
A No, he did not exceed them.
Q What did it mean if a decision of a court was made out and an associate judge was supposed to sign it. Could this associate judge also in this trial make any objections if he did not agree to this decision?
A Then, in the case of Rothaug the written decision had to be returned with objections.
Q Was that in accordance with the general practice in all German courts or was that an exceptional case in Nurnberg.
AAn exceptional case? It isn't either in itself.
Q Now, I want to come to the Katzenberger case. When did you, witness, for the first time find out that Katzenberger had been denounced, and in what position were you at the time?
A From the first of July, 1941, I was presiding judge of the Penal Chamber. Frau Seiler was on the 9th of July put under oath. Therefore, I must have been concerned as early as June 1941. What indictment was written by Herr Markl and directed to the Penal Chamber against Herr Katzenberger and enclosed, attached was an application to release him from imprisonment, or complained that he was imprisoned; I don't remember exactly which one.
Q From whom did you receive or from whom did the Public Prosecution get the case Katzenberger?
A I know from Herr Markl the Public Prosecutor, and from my own knowledge of the files that the case was submitted by the criminal police in Nurnberg.
Q In the case Katzenberger had there also been an investigating judge, Herr Groben?
A Herr Groben.
Q Could Herr Groben on his own competence, could Katzenberger have been freed from his arrest on his own initiative, or did it Public Prosecutor have to agree?
A The procedural rules provide that the judge in charge of the imprisonment, before he gives the order to have the prisoner released, that he listen to the Public Prosecution.
Q Can the investigating judge also without the agree ment of the Public Prosecution dismiss the prisoner?
A I believe not, because in that case the prosecution of course can bring about an imprisonment by way of a complaint: 125, 126, Code of Criminal Procedure.
Q Why did, at the time, tho Public Prosecution object to a release from imprisonment of Katzenberger?
A Yes, when the file came to me, the situation had already been changed considerably. I did not receive the application to have tho prisoner released from imprisonment, or the complaint with the attitude of the Public Prosecution but I received the indictment against Herr Katzenberger and there by way of official channels it has to be decided how long the prisoner is to be detained pending trial. So Herr Markl wanted to find out the reasons for the imprisonment, and the releasing the prisoner, but mainly the opening main trial because the Penal Chamber wanted to know the length of the detention pending trial; that was a combination of two possibilities.
Q When did this matter come to you; when did it come before you?
A Well, I told you before still in July; sometime in July, as far as I remember the end of July, 1941.
Q How did Rothaug come into connection with this case?
A By way of the prosecution; by way of Herr Schroeder.
Q When did Rothaug for the first time get into contact with this matter? As far as you remember.
A He must have on the same day by way of Herr Schroeder; he must have been informed. Rothaug must have been informed because I did not even have the time judicially, because the very same day the Public Prosecutor Markl withdrew the documents from tho Penal Chamber.
MR. WOOLEYHAN: May the Court please, the Prosecution objects to this line of questioning concerning the details of Katzenberger's case being presently brought out for the reason that they are of a mechanical nature, completely covered in the direct examination, for the purpose of background only and present no discernable connection to the issued being tried here.
THE PRESIDENT: Objection over-ruled; proceed with the examination.
BY DR. KOESSL:
Q As far as you remember, when did the question appear for the first time as to Frau Seiler committing perjury.
A The perjury case Seiler I would put at the first time the beginning of 1942, when I heard, and I believe I also in the prison book saw it, that in December Frau Seiler had been imprisoned; had been arrested for the Public Prosecutor Markl in the case of further investigation; he did not speak to me any more about it.
Q Who got the idea that Frau Seiler had committed perjury?
A Whose idea, who brought up the idea for the first time I can not tell you; from our sphere it was so that Herr Markl let it become apparent that the matter would be taken away, taken back to the Penal Chamber via Herr Schroeder on the initiative of Rothaug; that was a special discrimination according to the Public Enemy Order, and when I heard again about this matter in January, Frau Seiler had already been arrested because of perjury, so how this came about I do not know.
Q Did you want discussed the question as to whether Frau Seiler, by the investigating judge, had been taken under oath legally; was that discussed?
A Herr Rothaug repeatedly spoke against Herr Groben, and said insulting remarks; he made insulting remarks against Groben that he should not have taken this woman under oath; that that was evidence of lack of experience in the case of Groben in connection with this; that he could have spared this woman of this whole affair; that is correct, we discussed it.
THE PRESIDENT: We will recess at this time for fifteen minutes.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: It seems that there has been some slight misunderstanding about the duties of the military police in this room, and to clear up that situation, we have written up a very definite rule and I will read it at this time. It pertains to the counsel and to the defendants as to the attitude of the military police towards them.
"The following instructions by Tribunal No. III will guide you pertaining to the defendants and defense counsel:
"1. The defendants will at all times remain in their seats. Leaning forward t attract the attention of their counsel would not be a violation of this rule.
"2. The defense counsels are permitted to stand at a sufficient period at any time to show their respective clients an exhibit which is then under investigation, provided only a brief space of time is used for such purpose.
"3. If any defense counsel desires to confer with his client for any period of time which is more than momentary, he should address the Tribunal and ask for permission.
"These instructions are made necessary in order that good order may at all times be maintained and so that the military police may understand what their rights and duties are."
I haven't very many copies, but I have one for each of the defense counsels and one for the defendants themselves, and they can have an opportunity to pass them around. We also have one for the military Police and the prosecution.
You may now proceed with your further cross examination.
BY DR. KOESSL:
Q. Witness, there was an objection saying that the proceedings against Frau Seiler and Katzenberger were combined.
A. Yes.
Q. Can you tell me whether at any time the view was spread that the combination of the proceedings against Frau Seiler and Katzenberger were not tenable under the code of procedure?
A. Even in the case of Rothaug in his office, that pint was discussed and Rothaug in respect of passing sentence on Frau Seiler for perjury before the penal chambers which were competent at the time, was against this. I have already quoted his words here. He was afraid that a general penal chamber would make a mess of this for him. Those were his own words. We pointed out that there were proceedings, for example, which were discontinued, if after a testimony of a witness, there is a suspicion of perjury , that the chamber decides about the perjury proceedings and according to that decision of course the proceedings are continued. Under the provision that the facts, formally speaking, there were reasons for combining the two cases. That curtailed the evidence for Katzenberger.
Q. Did the defense make a motion that the proceedings should be separated?
A. No, they did not. Herr Endres, Seiler's defense counsel--I think I am not wrong when I say it was Herr Endres--did not make this mention, so that a ruling by the court on combininb or separating the two cases did not have to be made.
Q. Can you confirm to me that even after the two cases had been combined under the German rulings and procedure, there was a possibility to separate the two trials, at least until one defendant had to appear an a witness in the trial of the other defendant?
A. That is correct.
Q. Would, under German court usage, the testimony by Seiler as a witness, been more valuable than the testimony by Seiler as a co--defendant?
A. Those statements probably had the same value because we did not get a statement from Seiler as a witness because she was under suspicion of perjury, and penal proceedings were instituted against her.
Q. Did the court have any doubt as to whether Seiler had committed perjury?
A. The doubt referred to the fact as to whether Seiler kept something silent which concerned additional sexual acts, that is to say, that she had suppressed some occurrences altogether or as to whether she disputed the point that what she had omitted concerned sexual acts.
Q. I believe the second reason which you stated presented the mere subject of this argument.
A. I don't understand you properly.
Q. You meant to say that perjury was also supposed to have been committed because Seiler disputed erotic occurrences, although statements which she had omitted were in themselves of an erotic character, so that Seiler's testimony in itself constituted perjury.
A. Just a moment. As far as I remember, counsel for Seiler was also sentenced because it was assumed she had kept silent on actions which exceeded things which she herself had admitted.
Q. And the second reason is the one which I stated just now?
A. Yes, the second reason.
Q. Well then, concerning the individual participants of the session, be it the court, be it the public prosecution, or be it the defense counsel, did they have any doubt as to the sexual occurrence as such? I mean to say, did anybody have any doubt that the sexual intercourse which had been assumed had actually occurred?
MR. LAFOLLETTE: If your Honor please, I object to that question as calling for a purely subjective observation by the witness which does not relate itself to any objective facts and I think goes into the matter which, as I recall, was not covered by the direct examination.
THE PRESIDENT: Well, my recollection is that there was an examination about these matters -
MR. LAFOLLETTE: But not of this character.
THE PRESIDENT: Not of this character. I think this line of examination is altogether foreign to the proper sphere of crossexamination. Of course; it is entirely proper to review this case; because it was dealt with in the examination in chief; but to ask this witness the question as to whether there is any doubt about her being guilty or not will not aid the Court nor promote the defense.
BY DR. KOESSL:
Q Witness, will you tell me whether the Ministry of Justice dealt with the Katzenberger case only after the indictment; or after the sentence had been passed?
AA telephone communication took place on the day of the main trial because the indictment was submitted to them; the trials themselves had not been submitted to the Ministry.
Q On the day of the trial you say Reich Inspector Oexle was present?
A Yes; that was also mentioned in the newspapers.
Q Do you know why Reich Inspector Oexle was present?
A In those days -- in February and March 1942 -- the Gau was being taken over from Gauleiter Zimmermann by the Deputy Gauleiter Holz; Holz returned from the armed service. It was in that connection that Oexle was there.
Q Why did he come to the session?
A Because, at Mr. Haberkern's, he heard talk about it and because he wanted to hear the trial.
Q Is it correct that Frau Seiler had been a Party member? Was she a member of the NSDAP?
A Yes, that is correct.
Q Is it correct that it was one of Oexle's official duties to examine all Party matters?
AAll Party matters.
Q These Party matters which, within the meaning of that time, were considered vital, considered dangerous?
A Until now, as far as I knew, he was only concerned with misconduct on the part of the Party officers.
Q Is it correct that in the case of penal previsions against Party members the Party had to be informed?
A Under the guiding lines of penal procedure, yes.
Q At that time, on the day of the trial, was Gauleiter Holz present? Do you still remember that for certain?
A I have frequently put that question to myself in connection with the Grasser case. As far as Grasser is concerned, I know it for certain. As far as the Katzenberger case is concerned, regarding the attendance of Helz, I would like to leave the question open, because as I said, in those days the changeover in the Gau leadership took place, and I do not want to say so for certain. I have always avoided committing myself granting this point.
THE PRESIDENT: One moment, please. Maybe the rulings of the Tribunal could be mere consistent if we knew the theory of defense counsel. Now, may I inquire whether it is the purpose of defense counsel to show that the Party was taking a hand in this trial, or whether the defense counsel wants to show that the Party was not taking a hand in this trial? What is the answer to that?
DR. KOESSL: I wish to show that the Party was bound to be interested in those proceedings, and would have been represented even if not Rothaug but some other judge had been the presiding judge.
THE PRESIDENT: That does not answer my question. What I would like to know is whether the Party was trying to influence Rothaug or whether the Party was not trying to influence Rothaug.
DR. KOESSL: Your Honor, I would like to put this question to the witness. I do not know whether Your Honor wishes me to answer that myself.