DR. KOESSL: May it please the Court, the first question the witness evidently did not understand. Therefore, I wanted to go further into this case, the question about the statistics; the witness did not answer clearly enough for me before the recess. I wanted to help his memory along, and therefore I reminded him of the comparison of the criminality of the members of the western states with the criminality of members of the German Reich, and the criminality of the Poles. This comparison was before the issuance of the Pole penalty decree.
MR. KING: The question, I believe, is basically unfair for this reason--that the witness testified yesterday that even before the law against Jews and Poles was passed, that the defendant Rothaug achieved the same effect by interpretation of penal statutes which he had at his command, and that he achieved after the law was passed, so still we are talking about the question of criminality vs. convictions.
THE PRESIDENT: I would like to ask the witness a question at this point. Witness, you have heard what Mr. King has just now stated. Do you confirm that that was your answer on that point and that he has correctly reported your answer--in the way he has just stated?
A I believe so, yes.
THE PRESIDENT: You may go ahead with your questions.
BY DR. KOESSL:
Q Do you have any reasons on which you base for the participation of the Poles in the entire crimes in the Reich, compared to the proportion of western citizens in the crimes which were committed in the Reich before the decree against the Poles was issued, that is, before the 4th of December 1941?
A I already emphasized before that the Reich statistics were not submitted to me at all.
Q Witness, I want to go over to another point. What concrete reasons do you have for judging what influence Rothaug had on Haber kern in regard to the leadership of the Gau; what influence exerted through Haberkern on the Gau leadership?
A I know that Rothaug was at the Hotel Haberkern, at the socalled Stammtisch Club Table; that he was seen there frequently; I know further more, partly from having been present there myself, in the Blaue Traube Restaurant that other leading men of the Gau were also present there. For example, the Kreisleiter Zimmermann occasionally; also the high SS Police Leader Dr. Martin and several other people; and I know further more that at this Club Stammtisch matters concerning the Gau were discussed. I can further say with quite a good deal of certainty that Haberkern, especially in legal questions, based himself on the advice and actions of Rothaug, since Haberkern, as I believe I emphasized already yesterday, as Gau Inspector, at any time could have insight into any masters which were of interest to the Gau and what was going on inside the Gau; he could, of course, on the basis of this insight, he could inform the competent Gauleiter.
Q Did the Gau not have a definite office for handling legal questions?
A Yes, the Gau had a legal office, the Gaurechtsamt.
Q Was Rothaug in charge of this office?
A No. Rothaug was in the National Socialist Lawyers League; the head of which in the Gau Franken Franconia, at times was in personal union with the head of Gaurechtsamt in the person of Oeschey. In the National Socialist Lawyers League Rothaug had the position of a Gau Group Leader of the Judges and Prosecutors; you know that the National Socialist Lawyers League was again divided into groups.
As Gau group leader of judges and prosecutors, Rothaug was in the Gau Franconia, the judge, the leading jurist, politically; who also from the political point of view, especially the personnel policies of the Party had the primary influence on it -- the most important influence, that is, the Gau leadership. The Gauleader depended a great deal on its own initiative or due to the questions by the Party Chancellory, who had to advise and give opinions on certain personnel policies -- questions of personnel policy. The Gauleader and the Gaurechtsamtsleiter had to find out Rothaug's attitude.
Q. But, witness, is it not evident already from the fact that the Gauleadership and the Gaurechtsamtsleiter had to turn to Rothaug; that the Gau Legal Office leader -- director was the decisive man, the advisor of the Gauleadership.
A. One should suppose that from the outside, just from looking at the organization, but actually I should suppose -- I think I can say that with certainty, that the Spiritus Rector, shall we say, the guiding and thinking spirot, even under the leadership of Oeschey was Rothaug.
Q. Now, did you have an inside into the attitude of Rothaug with his associates from the political point of view?
A. Do you mean the association on the Special Courts:
A. Yes.
A. In order to do so it is necessary -
Q. (Interposing) Please, did you have an inside or not?
A. Yes.
MR. KING: May I ask if the witness wants to expand his answer or not. I think the witness should be permitted to if he so wishes. What is the ruling of the Court on that?
THE PRESIDENT: Yes, he may answer it further if his answer requires an explanation. Sometimes a question calls for a direct answer; sometimes that answer is not fair to the witness unless he explains why. In this instance he may answer.
A. (Continued) Rothaug was operating on the principles from the National Socialistic point of view, that was correct; that a judge in a Special Court had to fulfill a certain minimum requirement from a political point of view; that it was not enough for Rothaug that Special Court judges were appointed who, from the technical point of view, met the requirements, but they must also have a political, a certain maturity -- shall we say, a certain political maturity.
Q. Are you finished?
A. Yes.
Q. Insofar as the political maturity of the associate judges goes, did Gross and Ferber fulfill that and Hoffmann -- were all of those taken from the Special Court by Rothaug -- removed from the Special Court, or am I correct?
A. It was so that the basic attitude of Rothaug toward the requirements of judges in the Special Courts was that he emphasized occasionally, again and again, that these requirements were, of course, not fulfilled in all the points of the requirements because in his opinion the political orientation was not necessary to the extent that he desired it, did not exist to the extent he desired it. He said already under his leadership, judges were, shall we say, recalled.
Q. Did the associate judges of Rothaug find out any opposition on the political ideas by the SD, any complaint; perhaps because they had different legal opinions and different conceptions of law because they had voted differently in the discussions?
A. By the SD do you mean to say by that that the matters were taken from the higher authorities?
Q. Did Rothaug report about the unfavorable comments about his associate judges in order to have them reprimanded?
A. That was not the case for Rothaug stated again and again that under his leadership the judges followed the corresponding course.
Q. In the argument with Doebig, did Rothaug, at that time -what was the core of this misunderstanding with Doebig?
A. I have already emphasized before that it is my opinion, my conviction, that Rothaug, politically and legally politically was not in agreement with Doebig.
Q. Do you still remember what attitude Doebig expressed toward Rothaug when the question of transfers came up?
A. The question of transfer of Rothaug did not become known to us from Doebig, but only from Rothaug.
Q. Did Rothaug tell you at that time what words Doebig used in announcing his transfer to the East, to him?
A. He told me, the contents of the words, if I remember correctly, they were something like this: That the person of Rothaug, as a judge, in the Special Court, with the view to development of the war, at a Special Court in the Reich proper was not justified any more, properly. On the basis of his qualities, Rothaug would be suited far better for Special Courts in the East.
Q. Did he tell him at that time that it would be much better for him, Rothaug, if would go to the East -- he would not be so overworked as he was here?
A. That could be, but I cannot say that with any certainty.
Q. But, that would be the opposite of what you have just testified to.
A. The question is, in what connection did he, Doebig make the remark -
Q. (Interposing) You cannot remember that correctly?
A. In regard to the amount of work in lots of cases, that came up in regard to the material itself.
Q. Can you remember that at the time Doebig described the transfer of Rothaug as a serious blow to him, against him?
A. It could be that Rothaug pointed out that Doebig addressed his intent in such a remark, supplementary remark as far as I remember. However, Rothaug left no doubt that consideration of the person or transfer, that it was a favorable occasion for Rothaug, the transfer.
Q. Did Rothaug complain to you that Doebig praised his work extensively; that he wanted to remove the cause?
A. Something like that, it must have been.
Q. Did Rothaug mention that Doebig wanted to have only those people who crawled on the ground before him?
A. In this concrete form, one cannot put that question because I still have the impression as I did before, that the whole affair at that time was based on the political character.
Q. Did the associate judges of Rothaug, especially the associates of Rothaug, especially the associate judges and prosecutors complain about bad treatment?
A. Questions of that kind were essentially not discussed. Occasionally, perhaps. There was a short hint. They were not important for us.
Q. Did Markl, for instance, say something to you about the fact that he was suffering under the pressure exerted by Rothaug?
A. Markl, as I explained to you before....there were jurists, outside influences, and Markl was in Nurnberg. Thus, I did not come in direct contact with the Markl question.
Q. Did you supervise sessions of the Special Court?
A. About supervision, one cannot talk.
Q. You mentioned that you were present at two sessions; at least, you knew with certainty that there were two sessions. At that time, were you wearing your uniform, or were you in civilian clothing?
A. I was in civilian clothing, for there was a direction for the SD -- I don't know whether that was in writing -- a directive that they should not go in sessions of a court in uniform.
Q. bore the sessions of the Special Court supervised by other officers of the SD?
A. Defense counsel, you always use the expression "Ueberwachung" -- supervised....
Q. You denied that, as far as you were concerned; now, I am asking whether other people fulfilled this function.
A. As I already explained before, in our report the question was also the effect on the moral - the reaction of public opinion -that was within the jurisdiction of the Special Court to find it out--that occasionally the presence of trusted men in sessions of the court was necessary for this -- you can understand that. Thus, it is absolutely conceivable that such trusted agents, in order to determine the reaction of public opinion, were sent to the Special Court from the field offices Nurnberg.
Q. Also, this visit to the sessions was not for the "ueberwachung" --for the supervision of the personnel of the court?
A. Absolutely not.
Q. What did you now find out in this reaction of the jurisdiction of the Special Court on the public opinion?
A. As far as lay voices were concerned, the basic impression became apparent from the reports that the sentences were regarded as often short; -- "damned severe." (Pause)
Q. Did you finish?
A. Yes.
Q. Did you discuss this with Rothaug; and; can you confirm that particularly because of this severity he thought it was necessary to enlighten the people? That is, an enlightenment about the severity of the war time legislation?
A. Absolutely.
Q. Can you remember whether it was Rothaug who made efforts to have the severity of war time legislation explained to the people -whether these efforts of his were successful?
A. You mean to say that the hints upon the enlightening form of these sessions brought it about also that the population would understand it better now?
Q. Understanding on the part of the population, of the severity as well as a warning.
A. As far as I remember, the material that was reported was not sufficient in order to judge this - in order to draw such summarizing conclusions.
Q. Did you, yourself; make observations that the people; the population; felt that they had been warned?
A. That there was a fear of the Special Court is a matter of general knowledge. That this was in connection - this fear - with the efforts of Rothaug, I cannot judge whether this was so.
Q. Now, you also testified today, that Rothaug was once requested to state his opinion about sentences of three Special Courts.
A. Yes.
Q. Do you still remember which field this sentence of Saarbruecken was concerned with?
A. I cannot say that with certainty any more, whether it was Saarbruecken, or one of the other two. The questions were economic delicts, as fa.r as I remember. It is possible that there was a "black listing crime" - I don't know.
Q. Can you remember that in the Bamberg jurisdiction, merely the treatment of the black slaughtering was more lenient than in Nurnberg?
A. As far as our reports were concerned on this question, the question of black slaughtering, the treatment of the black slaughtering, was most important.
Q. Can you also remember that this entire question was brought up by a meeting of the food offices?
A. The food offices... I can't remember that now.
Q. Did you know that the question was a black slaughtering.
A. Yes, yes.
Q. Now, I want to go into your affidavit, insofar as I did not yet touch on these questions in it. Did you report the transfer of Rothaug to Berlin.
A. Yes.
Q. On the last page of your affidavit you have the following sentence:
"Usually there was the loophole of an application for reopening the case which had to decided by a criminal court. Rothaug knew how to eliminate this source of danger through his personal contact with the benches of the criminal and special courts, which were competent for these applications." Can you remember that sentence?
A. I recall it.
Q. Do you mean to say that Rothaug had ordered this personal contact, or did this identity of offices exist before Rothaug made the application to the Special Court?
A. This sentence describes Rothaug's personal explanation which he made on the occasion of a meeting.
Q Do you know whether this condition existed before?
I cannot say so with certainty. However, I should suppose so, because, after all, Rothaug regarded this regulation as particularly tropical in order to avoid difficulties in implications for the reopening of a case.
Q How can you justify the identity of the persons sittings in the Special Court in the Fourth Penal Chamber, that you described as having been brought about by Rothaug?
A Because he made remarks to that effect. He emphasized that his men, as he called them, were also sitting in the Fourth Penal Chamber.
Q You are a jurist, a lawyer, are you not?
A Yes.
Q Do you know the principle that for the reopening of a case the same court has to decide as the court from which the first decision original emanated?
A. I know that principle. According to the statements of Rothaug, however, in regard to the Special Courts at least at that time, there was an exception made.
Q Do you know where Dr. Malz is today?
A No. During the course of the war ho was removed. He went away.
Q When was he removed?
A I can't remember the exact point in time. However, it was after Kaltenbrunner took office.
Q How I want to ask another question in regard to the case of Doebig. Can you confirm the fact that Rothaug declined to be used as Oberlandesgerichts President, President of the District Court of Appeals?
A Rothaug actually never spoke to me about a promotion. By saying this I want to state that a possibility of promotion which any person had suggested to him would have been welcomed by him. In his remarks, as far as I remember, he pointed out that he did not want to become Oberlandsgerichts President at all, President of the District Court of Appeals, because, in my opinion, he felt that he was more suited to be a judge of criminal cases.
Q Thus he did not want to have an administrative job, but he wanted to be a judge?
A Yes, that is correct.
Q In the personal opinion which Rothaug had of you, and according to the mutual trust between you, would Rothaug have told you about the efforts which he made?
A Do you mean personal?
Q I moan whether he would have trusted you enough, whether he would have had the confidence in you, and also whether he showed that confidence in you.
A That was not a question of confidence, in my opinion, but a question of tact. He did not talk with me about a possible promotion for him.
Q But you opened up the question before as to whether a promotion into another position was suggested to him. I wanted to ask you whether he would have told you such a thing, or did do so, whether he entrusted you with such a thing.
A lean only answer that in the same way as I did before.
Q You yourself were SS Hauptsturmfuehrer or SD Hauptsturmfuehrer; how was that called?
A During the course of the war I came to the rank of SD Hauptsturmfuehrer, in 1942.
Q For long how have you been interned since 1945?
A May I ask you whether-
Q (Interposing) You are supposed to answer that.
A Must I answer that?
Q Yes.
MR. KING: I think it might be well, in view of well known facts, as to certain individuals, if that question were not answered or were not required to be answered, because I don't think we have to restrict the defendant, or the witness, rather, to any particular type of answer and I can offer the Court no guarantee that an answer will not be forthcoming which would be extremely embarrassing to several people in the courtroom at the moment.
MR. LA FOLLETTE: If Your Honors please, I don't think it is relevant to any issue in this case, in any event.
JUDGE BRAND: Is counsel not familiar with the general practice which permits questions of this nature as going to the credibility of the witness in every court that counsel has ever seen?
MR LAFOLLETTE: I don't think there is any question about that. If Your Honor please, that is not my position. The question as to whether the man has ever been interned or not is not relevant to his credibility or as to any fact bearing upon any position which he stated that he held. He has stated his position. Whether or not he was interned doesn't seem to me to be important.
JUDGE BRAND: It is remotely possible, though I am not suggesting it, that it might fortify rather than weaken his testimony.
A My only point is that I don't think it is relevant. I am concerned about whether it fortifies or weakens.
DR. KOESSL: may it please the Court, I waive the answer to this question.
THE PRESIDENT: Do any other defense counsel desire to cross examine this witness?
(No response.)
THE PRESIDENT: Is there any re-direct examination?
MR. KING: No questions on re-direct, Your Honor.
THE PRESIDENT: Then the witness may be excused.
(Witness excused)
MR. WOOLEYHAN: May it please the Court, the Prosecution has now the medical report on the defendant Engert, which was requested from the Bench two days ago. We offer it now for the Court's attention, it being a memorandum dated the 30th of April 1947, signed by 1st Lieutenant Martin, Medical Corps, Prison Physician.
Now, this report was only received this morning, and it is in the English language. Does the Tribunal suggest that I read it for the benefit of defense counsel or not?
THE PRESIDENT: It is in no sense a matter of evidence upon any issue in the case, it is only for the Court's information. Therefore, it does not come within the rule, but I think the easiest way to dispose of it is to read it to the translator so that everybody will get it.
MR. WOOLEYHAN: "Medical Dispensary, 30 April, 1947.
"Subject: Medical Report on Defendant Karl Engert.
"To: Military Tribunal No. 3.
"1. Defendant Karl Engert was this day examined in the Stadt Krankenhaus, Nurnberg.
He has been in the hospital since 19 April 1947. He was admitted to this institution from the Oberschule Hospital, Fuerth.
"2. This is a chronically ill, 69 year old man. The principal complaint is chronic chronicccholecystitis. This produces daily fever and severe colic pain. He was jaundiced for some weeks, but at the present time is free of jaundice. His gall bladder is very large, due to inflammation. A second condition, less obvious but basically more important, is cardiovascular disease. He has extreme arteriosclerosis. The blood vessels are like pipe stems. In addition, he suffers from coronary insufficiency. He also has gastritis. Because of the heart condition, age, and general physical condition, it is not possible to remove his gal bladder. Without removal of the diseased gall bladder, he will probably continue the role of an invalid.
"Any activity or indiscretion of diet will result in an acute flare-up. He also will nave to continue on a low or fat-free diet. Because of his gastritis he will need a bland diet. Any moderate activity may bring on an attack of coronary heart disease or failure due to the poor supply of oxygen to the heart. It is possible that any time he may have apoplexy from the arteriosclerosis. At the present time it is quite impossible for him to return to the prison. There is no possible way to prepare special meals for him in the prison. In addition, he could not return to prison because of the gallbladder disease, which is not yet quiescent. If it were quiescent, an acute flare-up could be expected in a snort time with normal activity in the prison. It will be some weeks before it becomes quiescent, if it ever does. If convicted to a prison term, he could not serve time in a prison but would have to be placed in a prison hospital. Signed, Roy Martin, 1st Lt., Medical Corps, Prison Physician."
THE PRESIDENT: Summing up the affidavit, it would appear that except for the things mentioned in the affidavit he is in good physical condition.
MR. WOOLEYHAN: Other than that, Your Honor, he is in excellent health, yes sir.
THE PRESIDENT: This Tribunal will take no action whatever. It is just informative matter.
MR. WOOLEYHAN: There is one farther question, Your Honor. The prison hospital called this morning to state that they are very snort of guards. The defendant Engert naturally is under constant guard while he is in the Hospital. They want to transfer him to an unguarded hospital if the Tribunal so rules, and the unguarded hospital is somewhere either Garmisch or Munich. It requires some action, I believe.
THE PRESIDENT: It is the opinion of the Tribunal that we are here merely to decide some questions of fact upon issues raised upon this indictment and the evidence either for or against, and we desire to take no part in anything other than that.
MR. WOOLEYHAN: The Prosecution at this time desires to present several documents which were received in evidence before the International Military Tribunal with respect to concentration camps, particularly Mauthausen, Flossenbuerg, and Auschwitz. On their face these documents do not name any of the defendants in this dock, but at the conclusion of the presentation of these documents we will link them briefly to these defendants, as has been requested previously from the bench.
The first document we offer as judicial notice on the ground that it is an official report by the office of the Judge Advocate General Headquarters, Third United States Army. This document is designated HO 2176 PS.
For the benefit of defense counsel, I have one German Copy in addition to a number of English copies. Would defense counsel prefer that I gave this one German copy to the interpreter, and thereafter they may look at it? That would probably be the most efficient method. This is a report by the aforesaid authority.
THE PRESIDENT: One moment. Will you give defense counsel a copy at this time? Maybe there is a misunderstanding. How many copies are there of this? Is there a copy now for the use of defense counsel?
MR. WOOLEYHAN: There is a copy in English, Your Honor, for defense counsel. This document is entitled "Report of Investigating Officer -- Confidential. Headquarters, Third United States Army, Office of the Judge Advocate, APO 403, 17 June, 1945.
SUBJECT: Report of Investigation of Alleged War Crimes.
TO: The Commanding General, Twelfth Army Group, APO 655, U.S. Army.
"I. Authority. This investigation was conducted to conformity with a letter from the European Theater of Operations, 24 February 1945, by Eugene Cohen, Major, 514th Quartermaster Group, Unites States Army, as Investigator-Examiner, during the period 6 May 1945 to 15 June 1945.
"II. Matters Investigated. Murder by shooting, beating, use of poison gas, drowning, starving, injections, stoning, exposure, burning and choking of nationals of twenty-three nations.
"III. Proceedings. The testimony of all witnesses examined in the course of this investigation and which is attached and made a part hereof was secured through tho use of interpreters whore requisite, after the witness had boon sworn."
Skipping to Page 2 of this document, Paragraph 4, Summary of Facts, Subparagraph a:
"Between 1,500,000 and 2,000,000 political prisoners are known to have been incarcerated and labeled for extermination at the Mauthausen system of concentration camps from available records. The Chain consisted ob between 23 and 30 individual camps between the years 1941 and 1945, the number varying as the smaller of these were occasionally evacuated.
"b. Of the camps affiliated with Mauthausen, the present investigation covered 13 of them, of which tho largest were Mauthausen, Gusen, Number 1 and Number 2, Ebensee, Steyr, and Gunskirchen."
May I interpolate a moment to invite the Court's attention to the fact that Ebensee, which I have just read, was tho satellite camp of Mauthausen to which the witness Hach was transferred, as is already in the record.
"The victims of this chain of camps were murdered by the SS guards working in these camps under the command of --" certain officials whose names I will not read. Skipping to Paragraph 5:
It may be added that one of the functions of the International Committee formed by this investigator to assist in the investigation of those camps was to arrange for each nation to copy the names of its dead from tho available records in order to notify the next of kin." Skipping tho next sentence, "This International Committee was selected from the inmates by the team and consisted of tho most distinguished members selected by the prisoners themselves."
Skipping to Paragraph 5, labeled "Conclusions:
"The evidence collected in this case shows very clearly that the whole purpose of the Mauthausen chain of concentration camps was extermination of human beings for no other reason than their opposition to tho Nazi way of thinking. There is no doubt that Mauthausen was the basis for long term planning. It was constructed as a gigantic stone fortress on top of a mountain flanked by small barracks."
Skipping to the last sentence of the next paragraph:
"It was conducted with the solo purpose in mind of exterminating any so-called prisoner who entered within its walls.
"Tho so-called branches of Mauthausen wore under direct command of tho SS officials located there. All records, orders, and administrative facilities were handled for these branches through Mauthausen. Tho other camps, including Gusen and Ebenesee, its two most notorious and largest branches, were not exclusively used for extermination but prisoners wore used as tools in construction and production until they wore beaten or starved into uselessness, whereupon they were customarily sent to Mauthausen for final disposal."
Without further reading from this document, we offer it for the judicial notice of the Tribunal as Prosecution Exhibit No. 412.
THE PRESIDENT: You offer the entire document and not merely that portion which you have read, as I understand it.
MR. WOOLEYHAN: To be consistent with what we have done in the past, Your Honor, I believe that in all fairness to defense counsel we only offer that portion which we read, for the reason that we only have one German copy, which is rather insufficient for distribution. However, if we can later find enough German copies, perhaps we could offer the whole thing. He so offer it.
THE PRESIDENT: You are apparently not ready to declare about translations and further use of the document?
MR. WOOLEYHAN: We request, Your Honor, at this time to offer it as Exhibit 412 so far as the record will show the portions which we road.
THE PRESIDENT: It will be received. Tho time has arrived for our usual noon adjournment, and we therefore adjourn until 1:30 o'clock.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 1 May 1947.)
THE MARSHAL: The Tribunal is again in session.
DR. GRUBE: May it please the Tribunal, I ask to be permitted to present a request to the Tribunal in the name of the defendants. The defendants have told me that in the evening they receive supper at halfpast five and that ton minutes thereafter, that is twenty minutes before six, they have to get ready in order to be brought over when they want to speak to their defense counsel. The defense counsel, according to the existing ruling, can only speak to the defendants at half-past six. Therefore, the defendants are asking that it be ruled that they can be brought over only at a quarter after six into the gymnasium so that they have an opportunity to eat their dinner.
THE PRESIDENT: It looks like that is a fairly reasonable request but I don't know what we can do about it.
MR. WOOLEYHAN: Your Honors, if the Court would care to make such an order, the prosecution would undertake to approach the prison authorities to see if that arrangement would be possible, or we could do it off the cuff for that matter without an order, I suppose, Whether or not the prison regime will allow that I don't know, but I will certainly find out.
JUDGE BRAND: My only difficulty was that I didn't quite get the change which is requested. I didn't quite understand it. I am sure it's a reasonable request.
DR. GRUBE: I ask to rule that the defendants are no longer brought over at twenty minutes of six, but at six-fifteen; that is, if their defense counsel want to talk to them.
THE PRESIDENT: The Tribunal will be willing to recommend that change but whether we have any power I doubt. We can recommend anything along that line that may be desirable, if you so state.
MR. WOOLEYHAN: With that in mind the prosecution will endeavor to secure the change. If defense counsel will come to my office after the session this afternoon, we will get it down in writing and see what can be done.