MR. WOOLEYHAN: Page 73. There is a sworn affidavit reading as fallows:
"I, Hermann Markl, retired public prosecutor, Argelsried Post Gilching, Kreis Starnberg, Rochenrstrasse 19, herewith declare under oath: Skipping to the middle of the second paragraph: " 0 n 1 April 1935, I became a prosecutor in Nuernberg whore I was active in diverse special fields. In 1936 or 1937, I was appointed, for about 6 weeks altogether, to substitute for someone (without participating in trials) in political and Special Court matters in a representative capacity. From 1 June 1939, I was permanently assigned to work on political matters and on the affairs of the Special Court.
In 1933 or 1934, I joined the SA, and on 1 May 1935, the NSDAP. In 1944, I was appointed assistant "Block Warden" of the NSDAP. I served as a confidence man in the SD from the end of 1941.
In the course of my work as a prosecutor to the Special Court in Nuernberg, I came to know the former Presiding Official, Dr. Oswald Rothaug, quite well. Rothaug was man of choleric disposition, an exceedingly sharp-tempered person, and quick to start an argument. When angry, he could be very insulting and behaved thus with a complete lack of control toward defendants during public trials. His great ability enabled him to force his will in everything; he could be persistent and or the utmost fanaticisn in his pursuance of a goal, which he had in mind. To this end, with no consideration, he exploited his excellent politic 1 connections which afforded him a great deal of power. He was generally called the real (Presiding officer of the Court of Appeals of Nuernberg for, as a rule, it was he who had the final say in deciding on promotions.
Politically, he was an enthusiastic and fanatical Nazi. He was an ideological follower of the Ludendorff movement and, therefore, an enemy of Christianity.
He, alone, was the ruling force in the conduct, as well as in the general organization, of his trials. He used his powers of convincing others which were supported by a strong will, to maintain his own opinion and to see that his personal will prevailed in all instances. The associate judges were more puppets in his hands. It was he who introduced the extreme severity in the degree of punishment at the Special court, Nuernberg, and it was he again who steadily increased this severity. His influence was also felt by the prosecutors, especially through his close friendship with the Senior Public Prosecutor Dr. Schroeder. Schroeder was dependent on him in every respect and thus Rothaug also held the Prosecutor's office completely under his thumb. It was an unwritten law that we had to submit to his will. His power of convincing others was manifest in such a direct and forceful fashion during a trial, that it brought all the participants, including the prosecutors under his influence. I, personally secretly feared Rothaug, and such, surely, was the case with all the others who had to work with him."
Skipping to Page 4 of this affidavit:
"To illustrate Rothaug's reprehensible behavior even more clearly, I should like to mention the following cases: The worst and most inhuman trial of the Nuernberg Special Court was that against the 68-year-old Jew, Katzenberger, which Rothaug conducted like a public exhibition. I took part in this trial as prosecutor assigned to the case and representative of the prosecution at the trial. This case involved the chairman of an Israelite cultural society in Nuernberg in an accusation of race-defilement with a German women.
The 31-year-old Irene Seiler was the woman involved in this affair. Already in the preliminary proceedings both denied the charge of sexual intercourse. I prosecuted the case at the Criminal Divisional Court and am sure that Katzenberger would have received a moderate punishment from this court. One day the defense counsel's complaint against a prison sentence was sent to me by the investigating judge." -
If we may make an interpolation here: It's apparent, from a comparison of the two affidavits, at least the prosecution so contends, that the complaint sent to the affiant here by the investigating judge was the one described in the document last read--the one appearing in the affidavit of Hans Groben.-
"When Rothaug learned of this, he ordered that Katzenberger's case be transferred from the Criminal Divisional Court to the Special Court. As a result, I had to take back the first plea and draw up another indictment for the Special Court which accused Katzenberger of race defilement, but this time, also of the additional violation of the Decree against Public Enemies. This new indictment also charged the Seiler woman with perjury. Rothaug personally ordered the inclusion of the Decree against Public Enemies and the charge of perjury. I considered the charge of perjury especially untenable, since it was entirely based on the supposition that Seiler had made a false statement, a fact which, in truth, could not be disproved, but which, neverthe less, rested entirely on inference. Rothaug clearly informed me that there was sufficient proof of sexual intercourse between seller and Katzenberger to convince him. He added that he was prepared to condemn Katzenberger to death. Since Rothaug knew he could not obtain this on the basis of the Law for Racial Protection" -May we interpolate a moment to refer the Court to Page 46 of Document Book 2, therein is set forth the law herein referred to.
It's a bad translation here. The best translation is the "Law for Protection of German Blood and Honor." Page 46, Document Book 2.
"Since Rothaug knew he could not obtain this on the basis of the Law for the Protection of German Blood and Honor, he dragged in the Decree against Public Enemies which would make it possible to achieve the goal he desired.
Rothaug further explained that he felt justified in this, since Ratzenberger had conducted his relations with Seiler under cover of the black-out and by taking advantage of peculiar war conditions. This fantastic distortion of the situation excluded an objective view of the case. By simultaneously combining the perjury charge with the violation of the race defilement law, Rothaug forced Seiler to appear before the court, nut as a witness, but as a defendant. Such a combination, which contradicted all established practice, was the result of Rothaug's expressed directive. If perjury had actually been committed, then this trial should have been held either before or after that against Katzenberger was begun. Just in this very case I informed the Ministry of Rothaug's intended procedure against Katzenberger, as I have described it above. I was told that if this was Rothaug's wish, then this procedure would be approved. The trial of Katzenberger was the must horrible experience of my life. Rothaug had invited high party officials to turn the proceedings into a political demonstration. No evidence whatsoever was brought into court which could have been proof of sexual intercourse between the two defendants. Rothaug tried with all his power to encourage the witnesses to make incriminating statements; however, the witnesses' ignorance of facts in the situation became more and more obvious. A Nazi witness for the prosecution called from the audience, while the trial was in progress, and wanted to offer some incriminating testimony. Rothaug, overjoyed with this request, praised the witness highly in spite of the fact that her statements were of absolutely no importance. During the pause before my plea, Rothaug told me what points he wished me to make in my plea for punishment. In my plea I expressed what he asked. The sentence decreed the death sentence for Katzenberger and 2 years in a house of correction for Seiler.
In his speech justifying the sentence, Rothaug indulged again in the most despicable expressions of hatred against Jewry, for, in order to impress the audience with this propaganda, Seiler was pardoned after partially serving her sentence. Katzenberger was executed."
Skipping to the signature on the last page of this document that: "These statements are the truth and offered without coercion. I have read then, signed then and declared under oath. Signed Nurenberg, 23 January 1947, Hermann Markl."
In possible anticipation of a question either from Defense Counsel or from the Court, I wish to invite the Tribunal's attention to the fact that on page 81, which is the last page of this document I have just read, the jurat on that affidavit was omitted in the typing. A jurat, however, in the usual form docs appear on the face of the original which we are offering in evidence. At this time the Prosecution offers as Exhibit No. 154 Document NG-681.
THE PRESIDENT: It will be received in evidence.
MR. WOOLEYHAN: Turning now to page 65, correction, page 64 of the same book, which is page 60 in the German, Document NG-270; this is an excerpt from the newspaper, The Stuermer, dated Nurnberg, April 2, 1942. The article is entitled "Death to the Race Defiler." I continue: "A Trial before the Nurnberg Special Court. The prosecutor reads the charge. The Jew Katzenberger has committed "race defilement" with the now 31 year old business proprietress in Nurnberg Irene S., of German blood, from the year 1932 until the year 1940 by exploiting this woman's financial difficulties. He did not even shrink back from exploiting the conditions caused by the war and the absence of the husband of S. who had been conscripted for his talmudic activity for military service. Irene S. is charged with attempting to withhold the deserved punishment from the Jew by commiting perjury in the pre-trial interrogation.
How KATZENBERGER defends himself - How will Katzenber try to deceive the court and get away from the avenging justice? The Jew Katzenberger made a quite special tactic his own. Alleged he has not engaged in a "race-defiling", but a "fatherly" relationship with Irene S. Only out of "pure fatherly" sentiment has he thrown her cigarettes through the window and given her shoes in whole quantities.
Before the verdict After the presentation of evidence has been concluded, the Prosecutor rises.
With sharp words he characterizes the defendant as a criminal, who did not even shrink back from exploiting war conditions for his shameless activities. As a race defiler and public parasite in the sense of the law, Katzenberger had forfeited his life. Therefore the death sentence should be pronounced against him. The other defendant, Irene S., should be sentenced to two years penal servitude and to the loss of her civic rights for two years.
In his final words the Jew Katzenberger finally tries at least to save what can be saved.
Once more he tries to play the "benefactor", in order to appeal to the pity of the judges. With an impudence, which only a Jew can possess, he characterizes all that, has been presented against him, as "backstairsgossip" and finally even wants to claim Frederick The Great as his principal witness. But the President does not permit a Jewish race defiler to soil the figure of the great Prussian King.
The court then adjourned for deliberation.
Sentenced to deaths!
When the court re-enters the court-room to announce the verdict, one can already see from the serious faces of the judges, that the fate of the Talmudic criminal has been scaled. As a race defiler and public parasite Katzenberger is sentenced to death.
The co-defendant Irene S. gets two years penal servitude and loss of her civic rights for two years for two years for perjury. Head of the District Court (Landgerichtsdirektor) R. finds certain words in the findings of the verdict which prove to what extent the German judges are impregnated by the tremendous significance of the racial laws. The President brands the depravity of the defendant and stamps him as an evil public parasite, "Racial defilement is worse than murder! Whole generations until the whole future will be affec ted by it!" Head of the District Court (Landgerichtsdirektor) R. in his speech also refers to the fuilt of the Jewry in this war. "If today German soldiers are bleeding to death, then the guilt falls upon that race, which from the very beginning strived for Germany's ruin and still hope today, that the German people would not emerge from this struggle." In the case of Katzenberger the court had to pronounce the death sentence. The physical destruction of the perpetrator was the only possible atonement.
The end - with the findings of the verdict the sentence of the Special Court has become effective.
Why the "Stuermer" describes the Katzenberger trial in detail. The Jew Katzenberger was sentenced to death as race defiler and public parasite. This sentence (it is not the first of this kind in the Reich) was pronounced in Nuernberg and thus honors the city, whose name was bestowed upon the racial laws of 15 September, 1935. For the Stuermer, however this sentence signified a special satisfaction, because it was the "Stuermer", which in a special edition of the year 1938, had demanded the death penalty for race defilers. If today Jewish race defilers are really sentenced to death, then this proves that the Stuermer has been a good prophet already years ago. Race defilers are public parasites. Jewish race defilers therefore will have to take care in future. They not only risk their freedom but also their heads and necks.
The patience of the German people has become exhausted. It does not greet Jewish public parasites more tenderly anymore than the public parasites from our own ranks. In this sense the Katzenberger trial has received a significance which goes far beyond the Nurnberg court-room. Everything for the German people. The world, Jewry will discover that Germany knows how to defend herself with the severe measures against Jewish race defilers. No it will again write according the old confirmed tactic, about the "mediaeval conditions" prevailing in Germany. It will again glorify those "poor, deplorable, harmless Jews", who become the victims of National-Socialist legislation. It will give vent to spite and malice toward Germany."
The Prosecution offers as Exhibit No. 155 the Document NG-270.
THE PRESIDENT: It will be received in evidence. We call attention to the time and wonder if you can get far with another exhibit.
MR. WOOLEYHAN: Do you wish to adjourn at 12:15?
THE PRESIDENT: You couldn't go far with the next exhibit in three minutes. We will adjourn at this time until 1:30.
(A recess was taken until 1330, 26 March 1947)
THE MARSHAL: The Tribunal is again in session.
MR. WOOLEYHAN: May I ask if Document NG-649 has been received by the Court?
THE PRESIDENT: Yes. Does the Defense Counsel have that document?
MR. WOOLEYHAN: Your Honor, they have indicated that they do.
Document NG-649 is a sworn affidavit which reads as follows:
INTERPRETER (HAHN): We do not have the document.
MR. WOOLEYHAN: Will you please ask the Defense Counsel if they have an extra copy.
(An extra copy was delivered to the Interpreters by the Defense Counsel).
THE PRESIDENT: This may be a good time to get this properly placed in the Document Book. What page number and what book does it belong.
MR. WOOLEYHAN: It should be placed at the end of Document Book 3-C, just after Document NG-154.
THE PRESIDENT: It will become page 108.
MR. WOOLEYHAN: It is a sworn affidavit and reads as follows:
"I, Dr. George Engert, born 10 May 1903 in Plappeville near Metz, attended elementary and high school in Bischweiler, Alsace, then junior college in Strassburg and Wuerzburg. I get by bachelor's degree 1921 in Wuerzburg and entered Wuerzburg University to study law."
Skipping over the majority of these biographical details to the middle of the next paragraph:
"In April 1939 I became member of the Nuernberg Special Court and remained there until 1 August 1941. From then on I was Senior Public Prosecutor at the General Public Prosecutor's Office in Nuernberg. I joined the NSDAP on 1 May 1937 and was, since 1943, "Gauschulungswart" (Gau Chief Instructor) of the NSRE (National Socialist Lawyers' League), I had been a member of the NSRB since the end of 1933.
At the time when I joined the Nuernberg Special Court, District Judge ROTHAUG was Presiding Judge of the Special Court and at the same time Presiding Judge of the court of Assizes and of the IVth Criminal Divisional Court. Until the outbreak of war , the major part of the work had to be done in the Court of Assizes.
ROTHAUG was very domineering as a Presiding Judge. He demanded that the other judges of the Special Court accept his ideas. Collaboration with him therefore was difficult. Such collaboration was made even mere difficult by the fact that ROTHAUG strengthened his position as Presiding Judge of the Special Court by making closer and closer contacts with Party members and the Gau Leadership as well as with SD (Security Service). He t* gained a more and more powerful position , also within the administration of justice, which extended even to the Ministry of Justice. In the Nuremberg justice administration, the Presiding Judge of the Court of Appeal and the General Public Prosecutor could try to influence Dr. ROTHAUG, but they were not to succeed in this. As an example, I mention the case of GRASSER."
MR. WOOLEYHAN: If I may interpolate for a moment. We wish to invite t Court's attention, to the fact that the case of Grosser was introduced into evidence yesterday as Exhibit No. 139. Resuming the affidavit: "I "Proceedings had been opened against GRASSER, for having committed a malicious political attack on State and Party, and a report had been sent Ministry of Justice.
The Senior Reich Prosecutor at the People's Court returned the documents, with a statement that the deed did not constitute an act of seditious undermining of German defensive strength. GRASSER was therefore indicted under Paragraph 2 of the Law against malicious attacks on Stat and Party. When ROTHAUG brought the case to trial, he insisted however, that Paragraph 4 of the Law against "public enemies", Again, may I interpolate for a moment.
This law against public enemies is the same law that was brought to the attention of the Tribunal yesterday. It is to be found on page 19 of Document Book 2.
"and the decree against seditious undermining of German Defense Strength had to be applied. He wanted sentence Grasser to death by means of these decrees. In the absence of the General Public Prosecutor, Dr. LEMS, I got if touch with the Ministry on the phone. Instructions were given not to demand the death penalty. I informed the Public Prosecutor in Nuernberg of the c*** of this instruction, but was informed that Dr. ROTHAUG wanted to condemn GROSSER to death, even if the public Prosecutor should make another demand for punishment.
I telephoned again to the Ministry of Justice and informed them of ROTHAUG's determination. The Ministry functionary, whose name I do not recall, declared that I should inform the Presiding Judge of the Court of Appeal of this fact. The Presiding Judge of the Court of Appeal should talk to ROTHAUG. Only if Dr. ROTHAUG should persist in his opinion, the Public Prosecutor could be told that he could ask for the death penalty, in order to avoid a divergence between the prosecutor's demand for punishment and the verdict. The Presiding Judge of the Court of Appeal, DOEBIG, been informed of this matter. I notified him of the telephone conversation. It also was known that the assistant judges were not of ROTHAUG's opinion if the GASSER case."
"The Presiding Judge of the Court of Appeal, DOEBIG, went into the conference room and tried to dissuade ROTHAUG. He was unsuccessful. I therefore informed the Public Prosecutor in accordance with my instructions that he could now demand the death penalty. The fact that orders were later given to carry cut GRASSER's death sentence proves that even the Ministry of Justice yielded to ROTHAUG's wishes.
I know from my own experience that Dr. BEMS repeatedly tried to influence Dr. ROTHAUG to be milder. These attempts, too, were with success. Dr. BEMS told me that once he had argued vehemently with ROTHAUG in the corridor of the Court House. I no longer recall what this was about.
"These statements show that ROTHAUG, who would not tolerate any interference from the part of the justice administration and even rejecting such interference in strong terms, listened even less to the objections of judges. ROTHAUG often insulted judges when they tried to make their different opinions to be heard. In addition ROTHAUG due to his numerous ** tions, contacts with Party authorities and the SD apparently had sources of information to which judges had no access. Therefore his arguments often could not be refuted. This, too, ROTHAUG used to enforce his will. Because of ROTHAUG's dictatorial position, every judge, who had a serious argument or even came to an open breach with ROTHAUG, had to reckon with the fact that his professional, factual or human objections would be interpreted as a lack of political principles and would have the appropriate consequences.
One could not find support from the justice administration for the abovementioned reasons. The local justice administration was too weak, because it was certain not to find the support necessary to oppose ROTHAUG's powerful position."
"ROTHAUG's position embraced not only the Court, but extended into the sphere of the Public Prosecutor's office as well. Hardly any public prosecutor dared to oppose ROTHAUG. His sphere of influence extended to the Public prosecutor's office, with the result that he therefore decisively determined the public prosecutor's demand for punishment. In an individual case it was as follows: ROTHAUG would discuss the prosecution's demand with the public prosecutor who would prevent it at the trial. Such was the procedure at the time when the Ministry of Justice had already ordered the so-called "guidance of jurisdiction.
"After this "Guidance" of jurisdiction had been introduced, ROTHAUG refused to attend "Guidance" conferences cf the verdict giving as his reason that nobody had to "guide" him."
Skipping to the next paragraph.
"Especially in two particularly crass cases he imposed his will on the court and caused these cases to take an unwarranted turn. These were the cases of GRASSER and KATZENBERGER, in which he was interested in achieving the "extermination" of the defendants as he used to put it. The GRASSER case in which competent authorities had already proclaimed that the defendant was not guilty of undermining German defensive strength, has already been mentioned above. The worst case was that of KATZENBERGER which caused a sensation only within the justice administration, but also preoccupied the public at large. The case had already been brought up before the Criminal Divisional Court. ROTHAUG got hold of the case because he wanted, at all costs, to obtain a death sentence against a Jew. ROTHAUG was a decided anti-Semite. order to have KATZENBERGER sentenced in any case and in order to put the witness SEILER under pressure, she was arrested and involved in a perjury trial that coincided with the trial of KATZENBERGER.
The ascertained facts of the case had to be twisted in order to make possible the application of Paragraph 4 of the Law against Public Enemies" and to make the case appear as an especially grave one. Rothaug succeeded a having the Public Prosecutor ask for the death penalty. The trial was given great publicity, Party authorities were also present. The Ministry of Justice did not consider the verdict correct. I know this from a remark made to me by under state secretary Freisler. A few days after the trial the Ministry of Justice rang up and ordered that the documents relating to the Katzenberger case had to be in Berlin at 9 o'clock the following morning. Since Dr. Bems was not available I went to Berlin as his deputy the same night, and arrived at the Ministry of Justice at 9 o'clock. At the same time the Senior Public Prosecutor of Oldenburg was called to Berlin in connection with a case which later became the subject of a Reichstag speech. It was obvious that Freisler only conferred briefly with me in this case. He questioned very briefly regarding the motives in support of the judgment and wanted to knew what I thought of the verdict. I told him that I could not agree with the legal justification of the sentence. He replied that he was of the same opinion. I then was immediately dismissed. Freisler's remark made me believe very firmly that Katzenberger's sentence would be commuted. Lit was therefore a great surprise to me when the execution of the sentence was ordered and I presume that the Minister of Justice could not prevail against other instances. My opinion was strengthen when Dr. Ferber once told me that Freisler also made a remark to him suggest ing that he did not agree with the verdict. Apart from Rothaug nobody in Nuernberg would have thought of sentencing Katzenberger to death on the basis of the available evidence."
MR WOOLEYHAN: Skipping to the signature I read as follows: "These statements are the whole truth and were made without any coercion. I read them, signed and declared under oath. Nurnberg, 18 January 1947." Signed: "Dr. Georg Engert." The prosecution offers Exhibit 156, NG-649. We would like to inquire at this time whether the Tribunal and defense counsel have Document NG-562 which likewise was distributed separately.
THE PRESIDENT: I don't think we had ruled on this last exhibit. It will be admitted in evidence.
MR. WOOLEYHAN: I beg your pardon. I beg your pardon, your Honor, have you ruled on that last exhibit?
THE PRESIDENT: I did so.
MR. WOOLEYHAN: You did so.
THE PRESIDENT: Yes, I admitted that last Exhibit 156 in evidence.
MR. WOOLEYHAN: I enquire at this time whether the Tribunal and the defense have Exhibit NG-562. (to interpreter) Would you enquire if the defense have an extra copy for their use? You have it?
THE INTERPRETER: Yes.
MR. WOOLEYHAN: May it please the Court, for your convenience this document could be inserted after the last document that was introduced in the same book.
THE PRESIDENT: This will be marked page 109.
MR. WOOLEYHAN:NG-562 is another sworn affidavit and reads as follows.
"I, Dr. Armin Baur Medical Counsellor, Baeumenstrasse 18, Fuerth, hereby declare under oath:
"I was born on 21 April 1899 in Oettingen, Bavaria. I studied at the Erlangen University from 1932 until 1937, passed my State Examination there, and that of medical doctor. In order to obtain a civil service position in the State, I passed the appropriate examination t the Munich University in 1938. Since March 1937 I have been working as physician of the District Court in Nuernberg.
"I became member of the NSDAP on 1 January 1938, and have also been a member of the SA since 1934. In my capacity as Court physician, I was well informed of the situation at the Special Court and can make the following declarations: Court doctors were more and more degraded by the Special Court from their purely medical functions to the point of becoming instruments for the political aims of the Special Courts. The position of medical experts at the Special Court was very difficult; it happened that the Judges, especially Roghaug, simply expressed their wishes with regard to the expert opinion. Roghaug once declared: "The exports can say what they want, I shall decide, however, as I please." It was known that Oeschey and Rothaug were in close touch with the Gauleiter and it was, therefore, very dangerous to disagree with their will.
I myself tried to keep away from such matters as much as possible. Therefore, I was not considered trustworthy and obtained an independent position in the District Court.
"At this time, I want to take issue with regard to a few documents which have been presented to me. Among the records concerning Pirner, Adam, there is my written opinion of 30.8.43. This was the opinion I supported during the trial, too, since I, as a matter of principle, never deviate from my conviction as set forth in my written statements when in Court. Besides, in the course of the trial no new point of view could be shown which could have made me change my opinion. Despite this fact, however, I find on page 97 of the document a note concerning the trial, giving a account of my alleged opinion, which is quite the contrary of my written statement. It is absolutely impossible that during the trial I could have made such basically different declarations. I consider this a false entry or the record, not corresponding to my verbal dispositions.
"In the case of Katzenberger I was appointed the medical expert, although * would have liked to keep away from this case. I recall the following details concerning this matter. Rothaug called me in and said he wanted to pronounce a death sentence; it was, therefore, necessary that the defendant be examined. He emphasized that this was a question of pure formality, as the "guy" would be beheaded anyhow. To my reproach that the man was old and that it seemed questionable to me whether it was not going too far to accuse him of "race defilement", he shouted: "It is sufficient for me that the swine said that a German girl had sat on his lap." At the same moment the telephone rang and I suppose that either the Gauleiter or Haberkern called. Rothaug first apologized for the fact that the session to which these higher ups were invited was being postponed in order to have the menta* state of the defendant examined. To a further question which I did not understand, of course, Roghaug answered: "This is only make-believe". Then, looking at me Shaple, he replied to another observation from the other end of the conversation: "I hope the man is all right". I assume that the question referred to the person of the expert. In fact, Katzenberger was neither insane nor feeble- minded; on the contrary, he knew exactly what he could expect from Rothaug.
He was, however, an old man who was suffering fro. heart disease, a condition that did not prevent Rothaug from hatefully shouting, at the man during the trial, as it was habit. I was asked about the conversation I had with him, which I reported. Obviously this created no sensation, just as the description of his health left everybody quite cold. During the proceedings against Katzenberger I had the impression that it was purely a sensational political trial, in which the Presiding Judge strove to show his unequalled brutality to insult the defendant in the most vulgar way; he left out nothing to drag Katzenberger's alleged affair through the mire. It was certainly the most repulsive trial I ever witnessed and Rothaug really acted in a manner which was unworthy of a human being, especially of a so-called educated man. His conduct of trials was always marked by brutality, shouting at the defendants or at un-co-operative witnesses. At this occasion, however, he really surpassed himself."
MR. WOOLEYHAN: Skipping to the last page of this document:
"Foreigners were generally dealt with by Rothaug and Oeschey as inferior beings, whose task it was only to serve the German master race. The presumption alone that there was a case of violation of the rights of the "superman" would suffice to impose the most severe sentences. In cases of foreigners in which I acted as medical expert, Rothaug declared to me beforehand that there could be no question of foreigners asking for extending circumstances on account of reduced intelligence, since the degree of intelligence could not be measured by German standards.
"This statement is the full truth and was given without any threat. I read it, signed and declared under oath. Nurnberg, 3 January 1947." Signed: "Dr. Armin Baur."
MR. WOOLEYHAN: Prosecution offers this document NG-562 into evidence as Exhibit No. 157.
THE PRESIDENT: The document will be received in evidence.
MR. KING: I would like the Court at this tine to turn to Document Book 3-D. The prosecution will introduce at this time as Exhibit 158 the Document NG-357, which is to be found beginning on page one of the English and German document books. We begin reading from the opinion in the case of Rudolf Kozian on page two:
"The defendant attended the elementary and municipal school in Vienna, learned the restaurant trade and was a waiter until 1910. He took a driving test and earned his living as a private chauffeur, From 1915 until 1919 he served in an infantry regiment and was on the Russian front. Since 1919 he has been in business as a taxi owner-operator.
"He has been married since 1916 and has two sons who have both been conscripted.
"From 1916 on he was a member of the Social Democratic Party. He was a member until it was prohibited. During the Systenzeit (period of the Weimar Republic) he worked for the NSDAP by distributing pamphlets. After the seizure of power he became a member of the NSKK: however, in 1939 he left it again.
"On 10 or 11 November 1943 the defendant drove Frau Kiene, who was evacuated to Hainfeld from Germany proper, and her seriously wounded husband from the south station in Vienna to the auxiliary hospital Vienna-Lainz. On the return trip Frau Kiene and the defendant get into a conversation. She told him that she was originally from Essen and was bombed cut there during a terror raid. The defendant asked what Essen looked like and the witness answered that it was terrible there, but that it did not matter because the population was confident that the Fuehrer would rebuild everything at the end of the war. The defendant laughed at this answer and said to the witness, 'You people in the Reich may put up with everything. Do you Reich Germans and your Fuehrer believe that we Ostmarker have our ears stuffed with mud? We guarantee you if Vienna is bombed there will be a revolution (Negeraufstand) in the Ostmark. We hear and see everything. In his speech in November of last year the Fuehrer said about the closing battle cf Stalingrad: "Our troops have already occupied.
Stalingrad and will take the rest by surprise." Instead of that, however, Stalingrad was taken by the enemy and the Fuehrer hid behind silence, rather than inform the population of it. The Fuehrer said at that time that 340,000 dead were to be mourned. But that can never be correct since from my house alone seven were killed. To us Viennese it is all the same from whom we receive our bread, whether his name is Stalin, Churchill, or Hitler. What matters is that we can live. In the Reich for every 600 enemy bombers only three German fighters go up to meet them. I know that exactly since I sneak to many soldiers who arrive at the South station from Germany proper.
"'When I quarrel with someone and see that I can no longer carry on, then I stop and do not continue the fight until everything is destroyed. The Fuehrer in his speech said that he would destroy us all.'
"When the witness interjected that this was not true, the defendant answered: 'The Fuehrer has said that this war will be fought until one side will be annihilated. Every child knows that we are that side, unless the Fuehrer will come to his senses before then and offer peace to the enemy.'
"The witness thereupon answered that although the Germans from the Reich proper had experienced much sadness during the war they still had full confidence in the Fuehrer and the defendant ought to love him, the more so, since he too was from the Ostmark. But the defendant answered: 'If the Fuehrer were still living in the Ostmark, he would have been done away with a long time ago, because it is better that one disappear from the scene rather than have an entire young generation killed or wounded. I am convinced that if we lose the war, as thousands of Viennese believe, then no German from the Reich will leave the Ostmark alive. If you had left the factories in the Reich and not brought this trash to the Ostmark, then the enemy would spare the Ostmark. Under Schuschnigg we had in the end almost nothing but dry bread and this is being taken from us as well by this new government. This we did not think of, or nobody would have agreed to the Anschluss of the Ostmark to the Reich.'
"The witness answered. 'We all desire the end of the war but we will have to wait until victory is won.'
"To that the defendant declared, 'You are closer to Berlin than we are. If you would no longer have the Fuehrer then we would all be living in peace already, because the Fuehrer is not satisfied with ruling only Germany and the other countries which he has already occupied, he wants to conquer the world.'" We skip now to the last paragraph on page four:
"The defendant admitted part of his assertions toward Frau Kiene, as for the rest, he denied having expressed himself in the stated manner. Frau Kiene however had repeated the discussion with the defendant without prejudice in the effort not to say one word too much, so that the senate gained an excellent impression and believed the witness implicitly. Her statements therefore were used as evidence to the facts. The statements of the defendant were liable to paralyze and break down the people's will for resistance. His statements left me doubt that the war was lost and would end with the destruction of the German People unless the Fuehrer came 'to his senses before' and. asked for peace. Thereby he reproached the witness that the Fuehrer had only followers left in the Reich proper; that if he were living in the Ostmark, he would have been 'done away with' a long time ago, an expression with which the defendant wanted to say, according to the opinion of the witness, that the Fuehrer would have been forced to resign from the government. His further remarks, such as, there would be a 'Negeraufstand' in Vienna if there was an air raid, that the Viennese did not care whether they lived under Stalin, Churchill, or Hitler, that if the war were lost, no German from the Reich proper would, leave the Ostmark alive, show quite clearly with what measures the defendant wanted to weaken his listener's belief in a final victory, undermine the confidence in the leadership and cast doubt on the permanent union of all the German peoples. Thereby he proceeded in public because he had to take into account and, in fact, did take into account, that the witness would pass on his statements, and that is what happened later."