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?
THE PRESIDENT: You may answer it.
WITNESS:
A. The connection of the trial against Seiler and with the trial against Katzenberger was something out of the ordinary, for according to the existing directors of the ministry, the German girls were not supposed to be tried simultaneously with the Jews who had been indicted because of racial defilement.
Q. Witness, you did not answer my question precisely, in a precise manner, what you touched upon just now concerns only the question of the punishment of the woman because of racial defilement. That is not what I am referring to. I mean only was the trial because of perjury in an unusual manner combined with the trial because of racial defilement, was it unusual that two trials which concerned the same historical occurrence, that these were combined?
A. Counsel, you seem to be mistaken. As far as a German girl because of racial defilement could not be accused at all because of racial defilement. Therefore, a combination of the two cases, Katzenber-ger and the Seiler case because of racial defilement, could not come about. I said that it was something out of the ordinary that the case Katzenberger because of racial defilement, and the case Seiler, because of perjury, were combined with each other.
Q. Was it possible for the General Public Prosecutor to prevent the combination, and did the General Public Prosecutor for that reason discuss the matter with you, or did you turn to the General Public Prosecutor yourself when you heard about this combination?
A. The question as to whether the two defendants should be tried separately or together or should be accused or indicted separately or together, was a matter of general concern to the Public Prosecutor, and I did not interfere with it.
Q Did you make the observation that the relationship between Oberstaatsanwalt Schroeder and the Defendant Rothaug acquired such a form that the position of the Prosecution was violated?
A The relationship between Rothaug and the Chief Public Prosecuter Schroeder was in as far as I observed, a very close relationship. Both of them came from the same political camp. Beth of them were Luddendorff followers. They were fanatical followers of Luddendorff.
Q Witness, will you please limit yourself as to whether this personal relationship had some inadmissible consequences as regards their official duties?
A I wanted to find out whether this relationship had any disadvantages in regard to the Prosecution.
Q For that reason, I am asking you whether you observed that Rothaug exceeded his competence in regard to the Prosecution.
A Rothaug excerted a very great influence upon the Prosecution. That I know. Frequently, as I found out only later, he had the prosecutor come to him during the recess and he would tell him how to act and what pleas to make.
Q You said you found that out only afterwards?
A Yes. Yes. I found out about it afterwards.
Q Were the directives of the Reich Ministry of Justice in this regard known to you?
A It was known to me that the Ministry of Justice was anxious to have a close collaboration between the Court and Prosecution. In my experience, a direction by the judge, was something that was not usually done.
Q Witness, was it known to you the pleas of the prosecution, after the submission of evidence, should not be a great contrast from the sentence which is finally pronounced?
A That is correct.
Q Witness, what then do you consider the extraordinary behavior of Rothaug? Where does it lie?
A The unusual behavior of Rothaug consisted in my opinion in the following: On his own initiative, he gave directive to the Prosecuter instead of speaking to the chief of the prosecution or the Generalstaatsanwalt who had already given directives to the Prosecutor in the trial.
Q Witness, did associate judges of Rothaug approach you with the report that they had had clashes with Rothaug, and that for that reason, they wanted to be transferred from the Special Court?
A Claims by associate judges at the Special Court about the behavior of the presiding judge, Rothaug, were filed all the time, time and time again. I remember several cases especially. I read that the associate judge, Maier, of the Special Court repeatedly asked to be relieved from the Special Court because the way Rothaug acted toward him had been unbearable, actually unbearable.
Q Do you know what caused Rothaug's behavior in this particular case?
A. As Rothaug, himself told me, he was very much interested in having Maier removed from the Special Court. Maier was not able to write a sentence in the manner which Rothaug desired. He showed me drafts of sentences made by Maier which he had changed completely. He told me that due to the amount of work he had, he did not have time to sit up all night and change the sentences written by Maier.
Q Do you remember that in addition to the two judges which you named in the affidavit, Maier and Oeschey, there were still others who wanted to be transferred into Rothaug's Court?
A The judges wanted to be transferred particularly to Rothaug? I do not remember that, outside of the cases I mentioned. It could be that in the early time, judges were interested in working at the Special Court. Inasfar as I remember, and as far as I have experienced it, however, especially during the last years of my activity in Nuernberg, it was actually difficult to get judges for the Special Court in Nuernberg. As a rule, I chose judges who seemed to be able to meet the demands, the special demands of the Special Court.
Can you remember that the Amtsgerichtsrat Groben, the local judge, wanted to be transferred to the Special and that at that time, Amtsgerichtsdirector Gruber objected to that appointment?
A It could be that the Amtsgerichtdirector did not want to give up a judge because he was already suffering from a lack of personnel. I do not remember this case, however.
Q Can you remember that the Landgerichtsdirector Ferber came to the Special Court at his own request?
A Landgerichtsdirector Ferber had, as far as I know, already in earlier years been with the Special Court. A recall of Forber from the Special Court was during my term of service; as far as I remember he was never discussed at all because Rothaug was satisfied with the opinions which Ferber wrote.
Q However, Ferber was temporarily active in the Administration of the Prisons and only came back into the Special Court as a judge after this interim of about four months. Can you remember that?
A That Ferber was temporarily in accordance with his own wish active in the prison service, I remember. After his return as a judge he was again appointed to his old position. That seems to be the thing that should be done.
Q Now in your affidavit you mentioned that Rothaug had even boasted about the name "bloody judge"; therefore, I am asking you, can you still remember Rothaug objected to you against the use of that name by a special small group and that you even issued a circular because of this matter?
A Rothaug once complained to me that a group of judges were in the building who in private conversations worked against his interests and objected to him, and he asked me therefore for protection. I never issued a circular in the meaning in which the defense counsel mentioned, but had a discussion with the Landesgerichtspresident - the president of the district court. In a discussion with him, I pointed out that judges who have complained about their colleagues in the court building should have the courage to come to me and to tell me these complaints and should stop carrying on secret whispering campaigns against one of their colleagues. I think that is only a decent thing for a judge to do. That Rothaug was designated as "bloody judge" and as "executor" and that he even boasted about it, I heard by a witness who had heard it at the Reich Supreme Court, who participated in a meeting during which Rothaug acted as a speaker for the National Socialist Lawyers' League, and at this opportunity, Rothaug boasted that he had the name of "bloody judge" or "hangman of Nurnberg."
Q You mentioned he did not show sufficient respect toward the Reich Ministry of Justice. Therefore I am asking you, did Rothaug discuss with you why he was in opposition toward the justice administration and in particular why he was in opposition toward the top men in the justice administration?
A Rothaug never denied that in his opinion the top men in the administration of justice of the Reich and the responsible men in the justice administration were no National Socialists in the sense which he considered it to be necessary for them.
It was again and again the result of the discussions with him, that he was the man who had been selected to make National Socialist law and to act as a precursor of National Socialist conception of law. Others did not understand that he was the man to do this. I can not remember the nicknames he used, but beginning with Minister Dr. Guertner down to the smallest clerk in the Ministry, he again and again had to make derogatory remarks about them. He spoke about calufication and such; anyhow he made it clearly recognizable that he was the man whose avocation it was to recognize the will of the Fuehrer.
Q Can you remember that with preference to the Ministry of Justice in particular, Rothaug had a low opinion of the Ministry of Justice because the Reich Ministry of Justice did not protect the judges enough against the political authorities?
A Whether that was the reason for Rothaug's criticism of the responsible men of the justice administration, I am not in a position to decide, After the decision of the Reichstag of the 26th of April 1942, which for the most part was like a blow on the head towards the judges, Rothaug expressed once in a conversation with me that we judges -- it had been our own fault if this action, which he considered a liberating action in a certain sense -- that this had come about because the judges did not fulfill their duties in the sense that Hitler wanted them to.
Q Did you at any time, witness, agree with the defendant Rothaug?
A I consider that impossible.
Q Just a moment. Did you agree with him when he said: "This decision does not apply to us because we did not sabotage it"?
A. It could very well be that I probably said of the special court in Nurnberg: "Nobody will object in accordance with the decision made by the Reichstag because a stronger National Socialist attitude could hardly be found." There were special courts which distinguished themselves by special strictness and which in contrast with the Nurnberg special court in discussions of the Staatsanwaelte were favorably mentioned by Freisler. I remember that the Special Court in Stuttgart, for example, was held in higher esteem than the Special Court in Nurnberg. I wasn't very happy about that at all. I was only surprised that there were courts which were obviously still stricter in their sentences than the Nurnberg Special Court.
Q After such discussions which you just mentioned, did you repeatedly express your admiration of the defendant Rothaug to him and based this on the fact that the Nurnberg Special Court had not aroused any attention?
A It could be that in the discussions which I had about these meetings of the chiefs, which I then had in Nurnberg, that he regarded my remarks as a praise; what I said about the Nurnberg Special Court not being the subject of any special criticism or that the Special Court in Nurnberg had not aroused any attention and not been mentioned in any way, that could be so. Whether that should be regarded as a praise, that obviously only Rothaug felt it to be such.
Q Now I want to go over to another thing. You mentioned the connection of Rothaug with the S.D. Can you remember, witness, that the former legal espert at one of your courts, by name of Elkar, who was a S.D. leader and once practiced under Rothaug, that at the beginning of the war, he visited you together with a Standartenfuehrer of the SS and that these three also went to the Generalstaatsanwalt - the general public prosecutor - and that on this occasion the cooperation of the justice department with the lower offices of the S.D. was being discussed.
MR. WOOLEYHAN: Your Honors, I object to this question. All the personalities involved are outside the scope of any affidavit or direct examination; furthermore, the question is so leading that the answer has practically been supplied.
THE PRESIDENT: Defense counsel has suggested that he is leading up to relations of Rothaug with the S.D. If your questions are really leading to that, we want to hear them; but it's on that theory only that we permit the witness to answer.
BY DR. KOESSL:
Q I am asking you again, witness, did the gentlemen whom I named -- did they try to establish an absolutely legal normal cooperation of the S.D. with the justice authorities in Nurnberg?
A. Elkar whom I know, when he was an assessor, or an assistant judge and his former activity; and an SS leader; it might have been; Friedrich visited me, made a formal cell at my office that I remember, but whet was the subject of this formal visit I don't remember any more. In any case, approval in the direction that the Justice Administration wanted to cooperate closely with the SD, I never gave that.
Q. I did not say so; I did not say that either. Was the subject of that discussion the following question: How it could be possible to prevent that in all kinds of relatively small matters the highest party authorities interference, and whether it would not be possible to give the opportunity in time to the Justice authorities to take steps against unjustified objections or attacks.
A. There was a constant effort being made; these interferences of the party authorities into the administration of justice to prevent in some way or the other I already stated yesterday; it is possible, but I don't remember any more, but after this discussion on this formal visit of Elkar and these SS leaders, this was being discussed too.
JUDGE BRAND: I thought counsel's questions were to relate to the relationship between Rothaug and the SD. Your questions haven't touched upon that at all.
BY DR. KOESSL:
Q. The question referred, to whether Rothaug was making efforts to meet unjustified attacks on the Administration of Justice by establishing an open cooperation with the Oberlendesgerichtspresident who had been chosen for that purpose.
A. May I answer this question.
JUDGE BRAND: I did not hear any question.
BY DR. KOESSL:
Q. May I repeat the question. Witness, you mentioned the incident of the visit of the Reich Minister Thierack to Nuernberg. Do you still remember why Rothaug at that time was ordered to appear before the Minister of Justice?
A. I first would like to clarify on what occasion Rothaug was ordered to appear before the Minister.
Q. After the speech in the Kultur-Verein, the culture club, Rothaug was ordered to appear one evening in the Deutscher Hof Hotel.
A. This request to appear for supper at the Deutscher Hof Hotel, Rothaug had been invited. I was so far of the opinion that his participation had been invited from the very beginning, for there was a seating order at the table, and according to this Rothaug had been reserved the place at the right of Thierack - at the left of Thierack, and, therefore, the invitation to invite Rothaug must have been intended from the very beginning.
that
Q. Can you remember, witness,/at that time a complaint was pending against Holz. That a complaint by Holz was pending which Holz, Gauleiter Holz, had registered against Rothaug at the Ministry of Justice?
A. A complaint against Rothaug? That I never heard about, but in the Ramstack case the Gauleitung, the Gau leadership was not satisfied; that I did hear about. In detail, however, I remember only that here there was a certain difference of opinion between Rothaug on the one hand and the office in the Gau leadership on the other side; that this existed, of what kind they were, I don't remember any more; I did not attach such significance to this matter.
Q. Do you remember, did you receive the complaint of Holz against Rothaug via official channels?
A. That may be; I can't remember it any more.
MR. WOOLEYHAN: May it please the Court, the preceding answer by the witness was that he was unaware of any such complaint by Gauleiter Holz. Why then supply the answer by the next question; that is a question entirely too leading.
THE PRESIDENT: There is no objection to the question on cross examination being leading. It does seem to me that this follow-up by the next question was out of order as he didn't recall anything of that kind.
BY DR. KOESSL: