Official Transcript of the American Military Tribunal in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 10 April 1947, 0930 - 1630, Justice Carrington T. Marshall presiding.
THE MARSHAL: Persons in the court room will please find their seats. The Honorable, the Judges of Military Tribunal III. Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal. There will be order in the court.
THE PRESIDENT: Mr. Marshal, you will please ascertain if the defendants are all present.
THE MARSHAL: May it please your Honors, all the defendants are present in the court room with the exception of defendants Rothaug and Engert who are absent due to illness.
THE PRESIDENT: The proper notation will be made.
DR. KOESSL: Dr. Koessl for the defendant Rothaug. I ask to be permitted to start the cross examination of the witness Doebig.
THE PRESIDENT: Proceed.
FRIEDRICH DOEBIG - Resumed CROSS EXAMINATION BY DR. KOESSL:
Q Witness, what official of the justice administration was the liaison man between justice administration of the Gau leadership and the Gau executive office in 1935 when you came to Nurnberg?
A When I started in office in Nurnberg in 1935, the leader of the Gau legal office, Denzler, was the liaison man with the Gau executive office.
Q How long was Denzler in that job?
AAs far as I remember, Denzler was in that position -- the position of the chief of the Gau legal office -- until the beginning of the war, I believe until the winter of 1939 -- 1940 -- I could not remember the precise date.
Q Is it therefore correct for me to say that the man who was put in charge by the Gau executive office -- who was put in charge of the field of justice during the entire period while Streicher was active here as a Gauleiter -- that was the later senior prosecutor, Denzler?
A It is correct that Denzler was put in charge; however, Denzler was in close contact with Rothaug, and as far as I know, he was a good friend of his. I have reason to assume that many questions were first discussed between Denzler and Rothaug.
Q Did Denzler act quite frankly and openly toward you?
A Denzler was not always frank; also, in dealing with him, I had to be careful.
Q Was Rothaug always outspoken and frank toward you?
A I believe that what I have explained yesterday has already refuted that point.
Q Witness, I wish to put to you what you stated in your affidavit on that point. According to those statements, the relations between Rothaug and yourself was only worsened by the matter of his intended transfer to Poland; that is to say, only in the course of the year 1942.
A I have explained yesterday that I was compelled to keep in close contact with the chief of the lawyers' league. The most important man in that lawyers' league was Rothaug; therefore, I also tried to work together closely with Rothaug and on the basis of mutual confidence. In the beginning, I gained the impression that this would succeed because Rothaug, in the years 1937 and 1938, behaved quite differently toward me than he did later. His arbitrary attitude increased from year to year, and particularly in the course of the war it became untenable. I should like to correct that the inquiry from the Ministry as to whether he was ready to go to the East did not come as late as 1942, if I remember correctly -- and that was confirmed to me by the official at the Ministry -- but already in the year 1941.
That I could not work closely and did not want to work closely with Rothaug is true by the following incident which occurred in the Fall of 1938:
On the first of January 1939, the position of the vicepresident at the district court of appeals in Nurnberg was to become vacant by the retirement of the man who formerly held this position, vice-president Hermann Schmitt. Sometime before that date, I was called by telephone by the man in charge of personnel at the Ministry, Dr. Miethsam, who informed me that it was the wish of the Party Chancellery to put in that position as vice-president the district court director Rothaug. The position of vice-president also included the personnel office for judges with the appointment of judges. I explained on the occasion of that telephone conversation, which was mentioned as being confidential by Dr. Miethsam, that as far as that request was concerned to place Rothaug in that position, I objected to that, and I knew that the majority of judges in Nurnberg were of that same opinion, and that as far as my office as district court of appeals president was concerned, I had to put that job at their disposal, if the Ministry would cede to the request of the Party Chancellery.
The result of that conversation with Dr. Miethsam was that the request coming from the Party Chancellery was deviated, and from another district -- it was from Westphalia -- a man was called for that job as vice-president. I must state at this point that that occurred late in the Fall of 1938.
Q Did you, witness, express that rejection of the person of Rothaug on your part to Rothaug himself?
A I have explained yesterday that my position in that respect was an extremely difficult one because it was naturally clear to me, as I have pointed out yesterday, that Rothaug had a further reaching arm that I had, because it was known to me that he had good connections, not only to the Gau executive office -- to the Gauleitung -
but also to higher Party offices. Therefore, in dealing with Rothaug I had to be rather reticent. I only found out after I left Nurnberg that at that time my telephone conversations with the personnel officer of the Ministry were watched. I was told later about it, but I an not sure whether it was true. If it was the case, then Rothaug knew how I thought about him.
Q. But witness, I wanted to know whether you, personally, ever openly expressed to the now defendant Rothaug whether you agreed with his behavior.
A. In dealing with Rothaug I personally expressed my impression of the manner in which he conducted trials. That is beyond, doubt. He, on his part, in at least two conversations with me stated that he wanted to restrain his temperment. However, as lasting success could not be deemed, and since other means to obtain a change at the Special Court seemed hopeless from the beginning, in view of the strong position Rothaug held with the party office, what could I hope to achieve? I had achieved the transfer of Rothaug from the Ministry.
Q. Did you, witness, see to it that the president of the Special Court, at that time Rothaug, was declared not fit for service with the army, so he could be retained?
A. I remember Rothaug was called at the beginning of the war. I also remember that his recall occurred. He had been a key man. He received threatening measures. If I am not mistaken, Rothaug told me, himself, that he would be recalled.
Q. What did you tell the defendant Rothaug when his transfer to Roland was cancelled?
A. As far as details of my conversation with Rothaug are concerned, I could not remember these because I had many conversations with him. He frequently came into my office. Frequently I had to listen to him for a considerable amount of time.
Q. Do you remember, witness, whether you made a statement to the extent that you would not like to lose him, or that you would rather get rid of him?
A. The latter I certainly did not say to him but that I welcomed him, that I do not know, but I do not believe that is right. Also in conversations with Rothaug I became more and more reticent because in the course of the years I gained the impression that Rothaug was playing a double game with me. In the meantime I also found out that Rothaug made ironic remarks about me.
He made the same kind of ironic remarks the various offices of the Administration of Justice made, and the gentlemen from the ministry. He and he only knew what the leadership of the state wanted and it was exceedingly difficult to deal with Rothaug.
Q. Witness, can you remember whether the transfer was one of the questions which was put to you at the Gau executive office?
A. I have explained that already yesterday. That was one of the many charges which were brought up against me in the Gau executive office, that I allegedly brought up a transfer. I argued against the Gau leadership. I already said yesterday that I never expressed a definite request or wish to the ministry concerning the further disposition of Rothaug. Where the ministry would send Rothaug did not matter to me. In particular I did not consider it a happy solution to send Rothaug just to the East.
Q. Is it correct that you even told Rothaug that the transfer to the East would be quite agreeable and advantageous?
A. It is true, according to the order of the ministry, I explained to him that he would be sent to the East. I asked him whether he agreed to it. That was the order I had received from the ministry. On that occasion I tried to make it sound pleasant, more pleasant. I tried to persuade him that he should not resist the decision of the ministry as it was my intention, of course, to get Rothaug away from Nuernberg by doing so. The people closest to me were fully informed about my thoughts on that subject.
Q. What did you say in the Gau executive office when it was charged that you were not open and frank with Rothaug?
A. It concerned that discussion with Holz where I played the role of prosecutor. I cannot remember today but faced with the fast game which was played against me and the intrigue on the other side I saw myself compelled to use similar weapons. That is obvious.
Q. Witness, you speak of intrigue. I should like you to clarify this.
Which of the two parties was false to the other? Did you not admit, yourself, that from 1938 on you tried to have Rothaug transferred? However, you did not tell Rothaug anything about that, is that correct?
A. That I tried to have Rothaug transferred is beyond a doubt true. Why I did not tell Rothaug about my intentions I have repeatedly stated here. Apart from that it is clear now that Rothaug found out about my intentions by listening to my telephone conversations, by tapping the telephone wires, because otherwise the fact that I attempted to have Rothaug transferred could not have been known at that time.
Q. From what source do you know that your telephone conversations were listened in on?
A. That the telephone wires were tapped in my telephone conversations could be seen from a letter from the Gau Executive Office to the Ministry in which the charges against me were summarized, and in which all charges against me were collected. This letter of the Gau Executive Office to the Ministry was never shown to me nor was I ever told about it by Minister Thierack, but the man in charge of personnel at the Ministry, inisterial Counsellor Dr. Miethsam read it and he informed me that in that letter it was also admitted that my conversations with him had been under surveilance.
Q. From where do you know, witness, that the defendant Rothaug had anything to do with that surveilance which you assumed to have occurred?
A. I do not only assume that this surveilance occurred, but on the basis of the admission by the Gau Executive Office, I have to consider it a fact. Who it was who arranged that these conversations in the Ministry, with the Ministry, should be listened into, that I could not say, of course; but who could have had an interest by Rothaug, who, as I have found out later, when I left Nurnberg, had a leading position in the SD.
Q. Witness, do you happen to know that during that period all important conversations were under surveilance?
A. That the informant system at that time assumed such extents was not known to me at the time.
Q. Do you know anything, witness, about the reasons for Rothaug to be sent to Nurnberg, that is to say, why he came to Nurnberg again in 1937?
A. The recall of Rothaug to Nurnberg occurred at a time when I was not yet President of the District Court of Appeals at Nurnberg.
Q. Excuse me, but you were Chief Prosecutor, weren't you?
A. May I finish. But I know from the close connections, contacts which I had with my predecessor, Counsellor of the District Court of Appeal Bertram, that as far as the suggestion was concerned to recall Rothaug to Nurnberg that suggestion was actually made by him, but upon the request of the Chief of the Gau Legal Office Denzler, who had been together with Rothaug at one time before at the local court of Nurnberg, and who was supposed to have close connections with Rothaug.
Q. Witness, do you know whether the case stegmann had anything to do with the transfer of Rothaug?
A. No, I don't know anything about that.
Q. How was Rothaug's character described, that is Rothaug's character before 1933, that is on the service records?
A. I have explained in my affidavit already that Rothaug brought with him from Schweinfurt a very favorable recommendation, particularly was it pointed out, emphasized; emphasis was placed upon his sagacity, on his legal qualifications; and his extraordinary capacity for work; that Rothaug was a very clever and clear thinking lawyer; and that he cold do a tremendous amount of work; that he proved that at the Special Court in Nurnberg.
Q. In those recommendations from his former career, could there anything be found that he had been a severe judge before, and a very severe prosecutor?
A. That I cannot remember.
MR. WOOLEYHAN: May it please the Court, I didn't hear the last phrase that the witness spoke, but I object to the last question asked by counsel on the grounds that such an opinion could not appear from a service record; that the question indeed calls for the personal opinion of the witness as to whether or not a judge was severe.
THE PRESIDENT: The answer by the witness makes it clear that no harm was done because he said he didn't remember.
BY DR. KOESSL:
Q. Witness, did you ascertain whether Rothaug made any difference in the way he treated witnesses, or defendants, in cases where he dealt with political crimes, as compared to those cases which were not political ones?
A. The treatment of witnesses and defendants by Rothaug belongs to the chapter dealing with the manner in which he presided over a court, and this chapter was a rather sinister one in the entire activities of Rothaug that I have already explained; it was quite easy to ascertain that Rothaug -
Q. May I interrupt you, witness. My question was did Rothaug apply different methods in political cases than he did in non-political cases.
A. If you don't wish to hear an explanation in answer to a question and only want the question answered yes or no, then I have to say yes.
Q. You have missed the answer to this question. I want to have an explanation from you as to how you came to answer that question width "yes".
MR. WOOLEYHAN: May the Court please, I object to that question in asking for an explanation because it has not been shown to the court or to the Prosecution what this wintess may happen to mean in his mind by a political case; that has varying definitions, and I am not going to accept an explanation of what he thinks is political cases unless he tells us. There is no standard definition for political eases.
THE PRESIDENT: It may be that this question will call for an answer to that very matter which I would like myself to know, the answer this witness would say as to his distinction between political and non-political matters as a part of his explanation.
A. It is extremely difficult to establish a difference between a political criminal case and a non-political penal case, and it was exceedingly difficult when Rothaug was presiding judge. Of course there were cases which were absolutely free of any political background; for instance, if somebody stole a handbag and that case came up for trial. Frequently, however, Rothaug in penal cases which according to the normal conception had no political background he introduced a political atmosphere; and in a case where that was definitely not necessary, introduced at the same time a high degree of severity, principally as far as the Special Courts were concerned, and particularly during the years after the beginning of the war there were cases that were supposed to be considered political cases.
But it is evident that unless purely non-political criminal cases, he treated witnesses of the prosecution different from witnesses for the defense, and that he spoke to them in a decidely different term, and I could observe that repeatedly on my frequent visits in the court room of the Special Court. Likewise, it was not the ordinary thing to apply, as he did, the method, that he frequently called witnesses for the defense first; and who, in my opinion, were just questioned briefly, and only in the end to call the witnesses fer the prosecution in order to strengthen the case of the prosecution.
Q Now, that kind of behavior on the part of Rothaug would have to have two natural consequences, witness; first, frequent nullity pleas or requests for revision of his verdict or his sentence, and, secondly, a disciplinary investigation on your part. I ask you, therefore -
MR. LOOLEYHAN: (interposing) If the Court pleases, I object to that question. It is an attempt by the Defense Counsel, not elicited by questioning, and those facts can only elicited from the witness. This should not be stated as a matter of proof by the Defense Counsel.
THE PRESIDENT: The question was not completed. At lease we should know the entire question and then we will rule upon it.
Q (Continued) as a consequence of that discriminatory treatment of witnesses, which you have mentioned, were there frequently applications for the nullification of the sentences, and were there legal remedies used successful on account cf this discriminatory treatment of witnesses?
A Legal remedies against sentences of a Special Court did not exist with exception of the nullity plea, which was introduced later. That against sentences by the Special Court in Nurnberg, at the time the nullity plea was made, was shown in the session of yesterday where in the case cf Therese Mueller and Lopata, which were mentioned and discussed. But of course, there were more cases cf that kind, where against sentences of the Special Court in Number, a nullity plea was made.
Nullity pleas against the sentences of the Special Court in Nurnberg perhaps were not as frequent as against sentences of more lenient Special Courts; and, that was quite obvious because it was the intention of Rothaug to hand down sentences which should not later cause the RSHA, the Reich Security Main Office; to take illegal steps, as he explained to me personally. It was his point of view that it was the point of justice itself, meaning the administration of justice itself, if the SS was compelled to correct sentences made by the justice machinery.
Q Witness, I ask you new, did any one of the defense counsel or any one of the defendants, at any time, apply or place a legal remedy against a sentence by Rothaug on the fact that the witnesses were treated differently, depending on whether they were witnesses for. the prosecution or for the defense?
A I do not understand Counsel hew you expect me to have that knowledge. It is quite impossible to expect that I could have studied the entire correspondence of the Special Court at Nurnberg aside from my many official functions. One case in which a nullity plea, in favor of the defendant which was based on the discriminatory treatment of witnesses is not known to me, not any individual case.
Q Witness, the discriminatory treatment of a witness would have been a circumstance which would have justified a retrial. Did any defense counsel request the retrial because witnesses received discriminatory treatment?
MR. WOOLEYHAN: If your Honor pleases; I object to that question on the ground that a few moments ago the Witness testified that there were no legal remedies, so far as the treatment of witnesses were concerned. He further testified, a few moments age that the only remedies that did exist at the Special Courts were: one, please of nullity, and as we already know from the statutes in evidence, an appeal for clemency. Now, if this examination is to be based on the matter brought out in direct examination this question is irrelevant, and is not based upon what has been said.
THE PRESIDENT: Please repeat your question.
DR. KOESSL: Did any defense counsel of any man, who was sentenced by Rothaug use the legal possibility at his disposal to request retrial because his client had been sentenced on the discriminatory treatment of witnesses for the defense compared to the treatment of witnesses for the prosecution.
THE PRESIDENT: My recollection is, that was the same question that was previously asked and to which he made the answer that he did not, within his own knowledge know of any such case. Now, that is exactly the same question which was asked before, and my recollection is that was the answer he gave. If I am wrong I would like to be corrected.
DR. KOESSL: Mr. President, the Witness gave his answer only to the question as to the nullity plea.
THE PRESIDENT: Well, it has been suggested that we lot the witness answer whether he knows the answer to the question first.
THE WITNESS: I cannot give an answer to this question because details, of course, are not known to me. I believe that counsel will understand that. If clarification of this question should need to be obtained, an associate judge of that special court would have to be heard.
MR. WOOLEYHAN: Is it appropriate at this time to offer further substantiation for my objection a moment ago to the effect that the witness had in fact said -
THE PRESIDENT (Interposing) The answer is that he doesn't know, and therefore I don't see how anything further cam appear on that point. That question is behind us, isn't it?
MR. WOOLEYHAN: Except on one point of law. Your Honor. Dr. Koessl raised the point whether the witness had ever known of a case where defense counsel, after sentence, sought to have the case retried by a plea of nullity, because of discriminatory treatment of witnesses. Now, the witness answered that so far as he knew, there was no legal remedy in that situation.
JUDGE BRAND: But the witness also said that he did not know the answer to the question. Now that matter is closed. There is no more legal question involved.
THE PRESIDENT: Moreover, it appears to me to suggest that the answer to that question ought to be found in the German law. It occurs to me to suggest that the answer to that question should be found in the law itself and not in the opinion of a witness as to whether that is in the law or not.
MR. WOOLEYHAN: May it please the Court, Your Honor is right, and I was about to point out that very thing, that the answer does appear on page 35 of document book 2, in the law concerning pleas of nullity.
THE PRESIDENT: This Tribunal is not interested in the opinion of this witness or any witness as to what the law is. If there is a law on the subject, that is what controls and not the opinion of the witness as to what the law is.
DR. KOESSL: May it please the Tribunal -
THE PRESIDENT (Interposing): If counsel wants to find information on this subject, it is found on page 35 of book 2 in very definite language.
DR. KEOSSL: May I say something to that, Mr. President?
THE PRESIDENT: There should be no questions of that kind any further.
BY DR. KOESSL:
Q. Witness, did you make a note on the personal records which stated that Rothaug treated witnesses discriminatorily?
A. A critical remark concerning the manner in which Rothaug conducted his trials at the Special Court is, beyond doubt, contained in a description of the manner in which he conducted his work. However, these descriptions were very brief, and so that remark may be there in just one sentence. Anyone who knew how to read know what that was about.
Apart from that, I informed the Ministry about the manner in which Rothaug conducted trials. I informed the Ministry continuously, and I was able to note that the Ministry also received information from other sources about the manner in which Rothaug conducted trials. I heard that personally from Minister Dr. Guertner. He knew particularly about the rather serious transgression of Rothaug in the trial of SchmittFasel, which I mentioned yesterday. At the time when I reported to Dr. Guertner he knew about that.
Q. Witness, in the eases of Lopata and Grasser, did you have any official function?
A. How small I understand that? What do you mean by "official function"?
Q. You said yesterday that the case of Lopata was pending at the Reich Supreme Court. Likewise, you have stated that the case of Therese Mueller was pending at the Reich Supreme Court. I should like to ask about these two cases first.
Were these two cases pending in that Senate of which you were President?
A. No. Cases from Nurnberg did not come before my Senate. I had a very definite sphere, and -
Q. (Interposing): I don't believe you have to explain that in detail.
A. No, I never had anything to do with Nurnberg cases.
Q. What you said about these cases, therefore, wan based on experiences which you gained outside of your official function, or at least outside of your immediate official tasks?
A. No. I remembored the case of Lopata particularly because the first sentence, as well as the decision of the Reich Supreme Court, as well as the second sentence, came to my attention and were read by me as President of the District Court of Appeals, because I had made arrangements that all the decisions of the Special Court Nurnberg should be presented to me. Also, it was a general arrangement that decisions of the Reich Supreme Court concerning sentences of the Special Court and other courts as well should be brought to my attention.
Q. Can you still remember, witness, whether the entire complex of maters brought before the local court at Neumarkt was the same as those which were brought before the Special Court at Nurnberg? Or do you remember that when the case was brought before the Special Court another criminal act was added to it?
A. The charge against Lopata had been raised bocause of indecent contact between Lopata and the farmer's wife. These facts were also reasons for the sentence in the re-trial. According to my recollection it was just the manner in which the facts were weighed which brought about the change.
Q. Can you remember that Lop;ta was charged before the Special Court with a second criminal act, and a very essential one?
A. Without being reminded of the details, I cannot tell you anything about it.
Q. Why did the Chief Prosecution of the Reich transfer the case of Grasser to the prosecution at Munich and not immediately to the Special Court at Nurnberg?
A. I do not know how I should know about that.
MR. WOOLEYHAN: Your Honors, I object to the question. I don't believe the Grasser case has entered into the examination of this witness at all. It would be under the scope of the direct, and also of the affidavits that have been submitted.
THE PRESIDENT: At any rate, he said he didn't know anything about it, so I suppose that is the end of that question. But let me ask counsel: Do you claim that the Grasser case has been discussed on the direct examination of this witness?
DR. KOESSL: The case of Grasser has been a subject of discussion in the affidavit.
THE PRESIDENT: That is true.
BY DR. KOESSL:
Q. Did you have anything to do with the case of Grasser in your official capacity?
A. Yes; I remember. After thinking it over, I remember quite clearly that the question as to what penalty should be imposed on Grasser was the subject of repeated telephone conversations by the Chief Prosecutor or his deputy on the one hand, and the Ministry on the other, that the matter, according to the desire of the Ministry, should not be punishable by death. Rothaug, however, after studying the files, changed the disposition quite suddenly, which was not a rare happening with him, and ho transferred the session to courtroom 600, appointed a counsel, and that was a clear signal that Rothaug intended to pronounce a death sentence.
I was informed that on the part of the prosecution attempts were under way to prevent the pronouncement of a death sentence against the defendant. Thereby, my attention was called to that case and I attended at least part of the sessions. During the main trial the deputy of the Chief Prosecutor; who was absent at that time, the Deputy was Senior Prosecutor Engert, approached me with the request that I, according to the request of the Ministry which had called in the course of the afternoon and had asked whether it was not possible that I, as President of the District Court of Appeals should inform Rothaug in that discussion but according to this request I should become active and I did so and I went into the conference room which was next door, just a few steps away -- I went into the conference room of the Court and according to my concept of the independence of the judge and in a very careful manner I carried out the request of the Ministry and expressed that in my opinion the way and manner in which Grasser was dealt with on the basis of the decree against public enemies, and it was the intention of Rothaug and lacked any cause and I agreed with the opinion of the Associate Judge, I believe it was District Court Judge Ferber, that the application of the decree against public enemies was not warranted as against the evidence. Rothaug, however, insisted on his point. Whereupon, I stated it was hard for me to asser an influence on the decision of the Tribunal -- I would have to leave that to the decision of the judges. That was the extent to which I had -
THE PRESIDENT: At this time we will recess for the morning recess of fifteen minutes.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
BY DR. KOESSL:
Q. I ask for permission to continue the cross examination.
Witness, in this solution, the legal solution of the case Grasser which you were seeking, was the death penalty impossible, was that excluded?
A. In this solution which I was striving for as far as I remember the death penalty could be avoided.
Q. Was it within the frame work of the possibility of punishment?
A. According to the law it could be, even if the solution which I mentioned here, the death sentence could also be pronounced.
Q. Did anybody on the part of the gauleitung of the party approach you in regard to the gase Grasser?
A. No, in the case Grasser I was exclusively, on the wish of the ministry, I approached the court, and that in favor of the defendant.
Q. I now want to come to the case Katzenberger, can you still remember when you found out or heard that the case Katzenberger was pending?
A. I cannot remember the exact point in time.
Q. When you heard about the case did you find unusual the connection of the case Seiler with the case Katzenberger?
Did you consider it unusual?
MR. WOOLEYHAN: Your Honor, I object to the question as calling for a personal opinion of the witness.
THE PRESIDENT: I couldn't hear what you said.
MR. WOOLEYHAM: Your Honors, I object to the question as calling for the personal opinion of the witness.
DR. KOESSL: May it please the Court
THE PRESIDENT: You will please repeat your question.
BY DR. KOESSL:
Q. At that time when you heard about the connection of the Seiler trial with the Katzenberger trial for the first time, at that time did you consider it unusual that these two trials were connected, this connection between the two trials?