Doubtless things were like this at the beginning, that HIMMLER and THIERACK - although of course they did not consider Dr. ROTHENBERGER a serious adversary in view of his comparatively minor position - regarded him personally at least with distrust, not being sure of what backing Dr. ROTHENBERGER might have from HITLER himself. That was the reason why they thought it better not to discuss questions of import in his presence.
The fact that these psychologically and logically substantiated arguments are not more hollow speculations but an assumption based on documentary facts is proved by a file notation written by FICKER to the effect that after a conference in the presence of Dr. ROTHENBERGER another secret conference "unter vier Augen" (without witnesses) took place between HIMMLER and THIERACK. HIMMLER and THIERACK had every reason at that time to keep the full content of their conference a secret from Dr. ROTHENBERGER: this is proved by the fact that no proper minutes of this conference were taken down which would have required the presence of a clerk, but merely a unilateral undated file notation was made out and initialed by THIERACK. With reference to this it is a striking coincidence also that the other item dealing with the transfer of the criminal jurisdiction concerning Jews was added and written on another typewriter than the one used before. Summing up it can be said that Dr. ROTHENBERGER has proved beyond doubt that he did not take part in the conference when the incriminating items of the file notation of 18 September 1942 were discussed.
Dr. ROTHENBERGER has declared in the witness-box that he heard only subsequently from THIERACK that he had agreed to the assignment of asocial criminals to HIMMLER's armament industries. Dr. ROTHENBERGER's suspicion, arising from a file notation concerning a conference between THIERACK and GOEBBELS, that such assignments had the object of extermination by overwork, was convincingly dispelled by THIERACK.
As anyway, for purely external reasons alone, with the war situation being in the state, it was in, then, all forces were urgently needed for war economy. That Dr. ROTHENBERGER himself never agreed with the allocation of criminal prisoners for work in the armament industries is not only evident by the objections he raised already at the discussions with HIMMLER, but also from his attitude towards the question of asocial people, discussed at length already.
Even after the meeting in Schitomir on 18 September '42, Dr. ROTHENBERGER never had anything to do with the work carried out in Departments V and IV which dealt with the allocation of criminal prisoners for work to HIMMLER. According to prosecution document (Exh. 45) THIERACK, by a decree dated 27 August, did exclude Dr. ROTHENBERGER from collaboration and co--responsibility of Department V which was competent for the execution of sentences by appointing himself their superior. This decree was extended to include Department XV when the latter was founded in October or November 1942. This was quite obvious by the fact that Dept. XV, in the same way as Dept. V, dealt exclusively with matters dealing with the execution of sentences, and they received a joint director in the person of Dr. ENGERT. The minister, as director of the Ministry, was legally entitled to exclude the Undersecretary of State from part of the work as he was an official who was bound to act according to instructions. He thereby absolved him from the responsibility of these departments in as far as the latter did not himself act as deputy for the minister in individual cases. However, this never occurred in the cases of Depts. V and XV, as, when the minister was absent, the director of the department himself decided matters or left them as the case may be.
This is evident from the testimony of the witness for the prosecution HECKER, and the affidavits MARX and RICHLER (R'Exh. 86, 31). Dr. ROTHENBERGER never once was Informed about occurrences in these departments. All basic decrees and documents submitted, which concern these departments, were never seen by Dr. ROTHENBERGER nor did he initial them, (Exh. 143, NG-558, Exh. 263, 662-PS, Exh. 262, 638-PS, Exh. 264, 648 PS, 701 PS and Exh. 265 L-316). Neither did Dr. ROTHENBERGER read or initial Dr. THIERACK's memorandum on the conferences in Shitomir, Exh. 38 NG-059. If, however, an under-secretary of state, in disregard of the normal competence, is excluded from an activity by express order of the minister, and if he has not been notified of the developments, he cannot assume responsibility for these departments. Dr. ROTHENBERGER, therefore, had no possibility whatever of exercising any influence in the matter in question. Of course he got knowledge that against his protest, as stated, criminal prisoners were drafted for HIMMLER's armament projects, but here, too, he was not in a position to exercise my legal or actual influence.
With reference to the questions connected with this Count there remains an individual case to be discussed which has its origin in the letter of the SS-legal officer on the staff of the Reichsfuehrer-SS to Dr. ROTHENBERGER, dated 19 January 1943 (Prosecution Exh. 472). By this, the prosecution tries to prove that Dr. ROTHENBERGER had departed from, or no longer strictly adhered to, his line of protest against correction of sentences by the police. This proof must be regarded as unsuccessful. The exhibit in question represents a reply to a previous letter of Dr. ROTHENBERGER's.
Unfortunately, this letter has not been presented by the prosecution, so that its contents can only be deduced from the presented prosecution exhibit. It is quite obvious from the letter of the Reichsfuehrer-SS that not only had Dr. ROTHENBERGER in his previous letter protested against the fact of the publication of the shooting without judicial sentence but, in keeping with his exhaustively detailed attitude, also objected to the fact of the shooting as such; otherwise the Reichsfuehrer-SS would hardly have thought it necessary to discuss, in the first place, the question if the shooting as such and, in tne second place, the fact of the publication, in the 2nd paragraph of the letter, and, beyond that, to motivate the shooting with the reference to a relative order from HITLER's.
It is a deplorable and disastrous fact that Rothenberger's representations failed because of the existence of an order by Hitler. Concerning this visit to Mauthausen, I shall only read the second half of the paragraph. It is on page 43.
Dr. ROTHENBERGER himself admitted that he had once visited the concentration camp in Neuengammer, and, later on, the concentration camp Mauthausen. It cannot be deduced from this fact either that Dr. ROTHENBERGER is guilty. The purpose of these visits was simply to find out -- in view of the circulating rumors -- what the conditions in the concentration camps wore like. In no instance could it be established that Dr. ROTHENBERGER had witnessed abused or even worse things. On the contrary, the statements of the witness HARTMANN prove that Dr. ROTHENBERGER talked to individual prisoners of to concentration camps in order to inform himself about the reasons for their imprisonment. It may be admitted without further ado, that the results of such an examination could not be of great importance -- according to his own plausible statement, Dr. ROTHENBERGER did not detect one case in which a sentence had been altered in an inadmissible manner -- since, as a consequence of the expansion of the competency of the Gestapo by the institution of the so-called "prevention custody" in the year 1939; the problem concerning the correction of sentences had become obsolete to a great extent.
The shifting of power within the state had already progressed too far, the Gestapo had long since been a state within the state. Dr. ROTHENBERGER did not have any power or competence whatsoever, to repeal any protective or preventive measures ordered by the Gestapo. I now pass on to page 44 of the English, deprivation of the rights of Jews, Poles and other people designated "asocial" and immunity of members of the Party I only want to read the four lines from page 44 and they are in the third paragraph, Dr. Rothenberger was involved in the circumstances which led up to this law only once, when he was asked by Thierack to attend a conference of Undersecretaries in the Ministry of the Interior.
Summarizing, the following has to be stated with regard to the counts 10/22 of the indictment Dr. ECTHENBERGER did not take part in the discussion of the inhuman problems at the conference on 18 September 1942. He was obviously excluded from this discussion, for the reasons stated above. He heard afterwards that it was intended to place asocial criminals (their nature was not described in detail) at the disposal of Himmler's armament industry, and he protested against this measure in vain. He was in no way connected with the measures by which criminal prisoners were transferred to the police by the departments V and XV which were not controlled by him.
VIII. Count. 16/28 of the charge.
Count 17/29. of the charge.
Deprivation of the rights of the Jews, Poles and other people designated "asocial", and immunity of members of the Party.
Under counts 16/28 and 17/29 Dr. ROTHENBERGER is charged with not having prosecuted members of the Party and with having established special criminal laws for the Jews.
The one and only document submitted in support of the charge of not having prosecuted members of the Party is Exh. 255 NG-640. This document does not show any connection with Dr. ROTHENBERGER. The fact that he had nothing to do with the matter emerges from the document of the Prosecution Exh. 256 (list of reports by THIERACK, see testimony of ROTHENBERGER page 5329).
The responsible participation in the introduction of special criminal laws for Jews allegedly refers to the law of 1 July 1945. (Exh. 204, NG-151). Dr. ROTHENBERGER was involved in the circumstances which led up to this law only once, when he was asked by THIERACK to attend a conference of Under-Secretaries in the Ministry of the Interior.
The subject of this conference was an ordinance on legal restrictions for Jews. Originally there had been a draft concerning the limitation of legal redresses in criminal cases as far as Jews were concerned; this draft already dated from the time before Dr. ROTHENBERGER took office, and which had been written by the then UnderSecretary FREISLER. Another draft, dated 13 August 1942, likewise originated with Under-Secretary SCHLEGELBERGER Dr. THIERACK's predecessor. Upon suggestion of the different ministries concerned, this draft had been amended and furnished with supplements later on. The file number proves that the final draft of the ordinance dated 25 September 1942 was submitted in the conference of Under--Secretaries, which originated with the Plenipotentiary General who had the last word in this matter.
This draft did not contain any regulation concerning the transfer of jurisdiction over Jews, and for the first time the question of transfer of property to the Reich in the case of deaths of Jews was formulated here. When ROTHENBERGER was ordered by Dr. THIERACK to like the chair in the conference mentioned, he was not in the least acquainted with all the events related above, since he did not know what was being done in department III which had to deal with the matter and which was not under his orders. (Exh. R'49, affidavit CRAU). In spite of his outright opposition, THIERACK ordered him to attend the conference and, at the same time, handed him the draft of the ordinance dated 25 September 1942. The scruples of Dr. ROTHENBERGER proved to be all the more justified, as an additional item, brought up by KALTENBRUNNER, came to light which surprised Dr. ROTHENBERGER extremely. The question at issue was the transfer of the jurisdiction concerning Jews to the police. This had been agreed upon between HIMMLER and THIERACK in a secret meeting of the two alone, and therefore without Dr. ROTHENBERGER on 18 September 1942. Apart from the many general reasons discussed with count 10/22, the correctness of Dr. ROTHENBERGER's statement is supported by the external fact that this item has been inserted into his file notation in subsection 14 by THIERACK only later on and written on another typewriter. From the probability of the statement as made by Dr. ROTHENBERGER it is disclosed that he was surprised at this new development, and, as was his duty, left to the Reich Minister of Justice himself the responsibility for such a far-reaching regulation, in particular as this problem quite obviously did not fall within his jurisdiction.
This stand-point of Dr. Rothenberger is credible firstly because the prevention of the transfer of jurisdiction to the police was one of the main subjects of the struggle he fought for the maintenance of law (see memorandum page 23) and, secondly, because Dr. ROTHENBERGER, in accordance with his entire human and personal attitude towards Judaism, was innerly opposed to the transfer of jurisdiction.
What was this attitude? By education and, as he failed from Hamburg, he was all but an Anti-Semite. By profession and also personally he maintained close relations with Judaism.
I now pass on to page 46 which deals with the same subject Dr. Rothenberger's attitude to the Jewish problem. The problem of the Jews pushed more and more to the fore by the National Socialists caused him severe inner conflicts. To be sure he was in favor of curtailing Jewish influence out he was, against any violent solution and economic exploitation of the Jews. The many articles of Dr. ROTHENBERGER submitted to the courts, his speeches, as well as the entire reform In all program do not contain a single word against Judaism. the individual cases which he handled either officially or privately he helped or removed harsh measures. Of. affidavits WIEGELMESSER, R'Exh, 19; deposition of Valentin, record p. 8826 affidavit BRUNS R'Exh. 20 and affidavit MEYER R'Exh. 18; affidavit KIESSELBACH jr. R'Exh, 45; deposition EIFFE, record p. 5542; deposition MIETSAM, record p. 4810 and affidavit BUSSMANN R'Exh. 30. Pensioning of Jewish judges took place automatically pursuant to the law governing Civil Service employees. He kept persons of mixed blood until the end of the war. Above all, in every case in which an inadmissible intervention in the life and body of a Jew took place by the police, he complained about it at the Reich Ministry of Justice This refers on the one hand to Jewesses who had been put in protective custody as witnesses in race pollution cases, unless they were prostitutes and had sexual intercourse with several men, as well as to Jews who after having served a sentence for race pollution were taken into custody by the police.
Cf. R'Exh. 78, p. 23 and 24 R'Doc. 104. The same document discloses on page 4 the fact, which already has been pointed out in a different connection, that Dr. ROTHENBERGER protected a judge who was attacked in the "Schwarze Corps" (SS publication) because he Rejected petitions for an order for eviction of Jews by landlords. The only legal question in which Dr. ROTHENBERGER assumed an antisemitic attitude was the question of law governing paupers. He testified on the stand why he assumed this attitude - namely it was due to the abolition of the duty of the State to advance funds to cover the trial costs after a welfare organization for Jews, separate from the State, had been created. In contradiction of this the witness BECKER, record p. 8599 testified that Dr. ROTHENBERGER by by-passing the district leaders of the Party took care in all cases that Jews, who wanted to go to court were assigned a lawyer for legal advice. To the extent that the document of the prosecution Exh. 28 NG-629 contains opinions toward the Jewish problem, these interpretations do not represent Dr. ROTHENBERGER's opinion but those of the Reich Minister of Justice which Dr. ROTHENBERGER, as far as they concerned questions of civil law, passed on to the courts under him.
From this follows that Dr. ROTHENBERGER, to be sure, made concessions in individual cases relative to the Jewish question, but this entire tendency was to limit the extension of police jurisdiction and attacks on the lives or bodies of Jews. When he heard of the agreement between HIMMLER and THIERACK relative to this, he immediately took the necessary steps.
He reported to THIERACK, and submitted his resignation, The latter refused to accept his request by pointing out the war situation and the legal impossibility of resigning in times of war. Besides this THIERACK called his attention to the fact that he had already asked for a second Under Secretary, intending to thus neutralize further Dr. ROTHENBERGER's position (Deposition Dr. LAMMERS, record p. 5455).
The file notice, concerning the Under Secretary's of State conference of 21 April 1943 which originated from the Reich Chancellery, is a very brief and coneise one; it is evident that its purpose is not one of (establishing a) minute documentary record of the course of the discussion. The brief wording explains why the question, as to who thought the settlement of the we doubtful points by way of an ordinance necessary, was left open. That it was KALTENBRUMMER who claimed this necessity, is evidenced by his letter dated 8 march 1943 directed to the Reich Minister of the Interior. The brief wording of the file notice seems mistaken and ambiguous in as muck as it also considers Art. 6 of the draft decree necessary. In Art. 3 of the draft of the decree under discussion, we do not, however, talk about a transfer of criminal jurisdiction but of the lacking laws enabling judges to reject pleas in respect of Jews. Therefore, from the file notice alone, it cannot be deduced conclusively that Dr. ROTHENBERGER himself considered the legal settlement of those two points in question necessary. The second point, the question of forfeiture of capital has not been dealt with by the Reich Ministry of Justice either. The contrary is also shown by Exh. 204, NG-151, draft decree dated 25 September 1942 file reference GBV. The exhibits ALTSTOETTER (sec appendix) show that Department VI of the Ministry of Justice otherwise competent for these matters, had nothing to do with the insertion of this provision.
This provision, anyway, did not deal with the settlement of the material law of succession, but was a mere police measure which, in practice, did interfere with the law of succession but which, did not shake its legal foundations, hence the rider concerning inheritance claims of non-Jewish heirs.
After the Under-Secretary's State conference, Dr. ROTHENBERGER never again had anything to do with the draft decree.
Summarizing I would say:
Dr. ROTHENBERGER did not participate in the discussions between HIMMLER and THIERACK on 18 September 1942 concerning the transfer of criminal jurisdiction with respect to Jews, Pole and Gypsies.
2). Dr. ROTHENBERGER had no knowledge of this agreement until the Under-Secretary's of State conference on 21 April 1943.
3). He never agreed to the legalization of this agreement nor to the provision concerning the forfeiture of Jewish capital, he could not have agreed to it either.
4). Dr. ROTHENBERGER neither had the power nor the possibilities to deter THIERACK from consenting to the law of 1 July 1943.
5). This incident caused Dr. ROTHENBERGER to do the only thing possible, he offered to resign.
VIII Count 16 and 23
1) Ex. 204 and ROTHENBERGER statement p. 5331--5334 and ROTHENBERGER Exhibit 49 (Volume appendix I p. 55) Affidavit Fritz GRAU and Exhibit 45, section III of the to Reich Ministry of Justice not subordinate Dr. ROTHENBERGER and ALTSTOETTER Exhibit cited in ALTSTOETTER Final Plea p. 60 61 middle.
2) Ex. 28 and ROTHENBERGER statement p. 5250, 5409, 5421, 5444
3) Ex. 372 and ROTHENBERGER statement p. 5250, 5409, 5421, 5444
4) Ex. 375 and ROTHENBERGER statement p. 5271, 5330
5) Ex. 255 and ROTHENBERGER statement 5329
6) Ex. 535 and ROTHENBERGER statement 5425, 5440
7) Ex. 462 and ROTHENBERGER statement 5243, 5330
8) Ex. 38 subsection 14 of the THIERACK notation and ROTHENBERGER statement 5346 With reference to Dr. ROTHENBERGER's attitude to the Jewish problem:
9) Witness testimony Fritz VALLENTIN p. 8828-8831 10) " " Friedrich PRIESS p. 9092-9094 11) " " Hans HARTMANN p. 8627 - 8628 12) " " Werner BECHER p. 8599 13) " " Peter Ernst EIFFE p. 5542 14) " " Dr. Ernst DRESCHER p. 5523 15) " " Dr. Wilhelm MIETHSAM p. 4809 16) ROTHENBERGER Exhibit 19 (Volume II p. 4 - 11) Affidavit Dr. Ernst WIEGELMESSER 17) " Exhibit 18 (Volume I p. 75-77) Affidavit Karl MAYER 18) " " 20 (Volume II p. 12-13) Affidavit Dr. Walter BRUNS 19) " " 8 (Volume II p. 16-17) Affidavit Dr. Georg BACKMEISTER 20) " " 45 (Volume appendix I p. 41-44) Affidavit Dr. Herbert KIESSELBACH 21) see also Dr. ROTHENBERGER's statements in regard to the Jewish question.
ROTHENBERGER statement p. 5252, 5253, 5444, 5420-5424.
I now come to the end of this point and I now pass on to mine. Point 9 deals with the sentences and executions of non-German nationals for high treason. It is page 48 in the German text; also in the English text, as to the conviction of foreigners in south Germany.
The legal argumentation I shall refrain from making because I can refer to the former statements. I only want to refer to the Kaloki case with which the Tribunal dealt in more detail because it was a question of the point as to whether Dr. Rothenberger made insufficient investigations concerning clemency proceedings. This was the case of Poles intending to escape to Switzerland and joining the Polish Legion. This was an interpolation. Page 50 of the text, and also the English text; I shall begin rending about half way down.
IX. Count 11/23 of the Prosecution Sentencing and execution of non-German nationals for high treason against the National-- Socialist State.
The inclusion of Dr. ROTHENBERGER in this count of the indictment can only extend to the foregoing paragraph of the general indictments on this count, since he had nothing to do with the other facts mentioned, especially with the extension of the German Penal Code to the occupied countries etc. The cases in question have are those of GOGLER, KALOKI, and CHARVAT, where Dr. ROTHENBERGER turned down the clemency plea.
a) Case GOGLER (Ex. 135) In the case of the Pole Johann GOGLER, the latter was sentenced to death on the count of "high treason by giving rid and comfort to the enemy", while, incidentally, the second defendant Joseph GOGLER was acquitted.
Hohann GOGLER had established unlawful contact between a captured Polish flying officer in British service and the outside world. He then made sketches of the surroundings of the prisoner's camp and gave them to him. These were to aid the captured officer's escape. There is no further need to stress that the enemy flying officer, after his successful escape, could again present a fatal danger to innumerable German lives by means of renewed bombing attacks.
Likewise, it stands beyond doubt, that these actions, which occurred in the fall of 1942, constituted, in effect, high treason by giving aid and comfort to the enemy. This crime, committed within the German border, is primarily punishable by death and was punished by death, so that the secondary utilization of the Polish Penal Code, dated 4.12.41, would not even have been necessary.
b) Case KALOKI: (ex. 130) In the case of KALOKI, the defendants -- also Poles -were sentenced for preparation to commit high treason and "treasonably aiding and comforting the enemy".In this case, in particular, the prosecution attempted to attack the reasons for the verdict as being defective and unfounded, and consequently to represent Dr. ROTHENBERGER's negative clemency decision as an arbitrary action.
This view cannot be shared. The question is, whether it has been proved that the defendants had intended to escape to Switzerland in order to join the "Polish Legion" in that way. That the defendants wanted to get to Switzerland was proved conclusively in the reasons for the verdict. All claims for protection which the Poles put forward were proved incorrect. They were apprehended in the immediate vicinity of the German--Swiss border. During the hearing of evidence it was established that most of the other fugitive Poles had chosen exactly the same route across the border. The decision of the court that the Poles wanted to join the Polish Legion was by no means arrived at arbitrarily either. It is emphasized specifically that the detective SCHLEICHER was questioned as a witness on this subject. He testified that one of the defendants had confessed to him that they wanted to escape to Switzerland together. As a result of the investigations of the witness SCHLEICHER and judicial findings from other cases, the people's court established that especially the border path to Switzerland in question was generally being used by Poles in order to join the Polish Legion with the assistance of the Consul of the Polish government in exile or another agency.
The important point here was not whether a Polish Legion existed in Switzerland which of course was not the case -- but whether there was an organization there which directed the fugitive Poles to the Polish Legion. Unfortunately the record of the trial, dated 21.5.43, contained in Exhibit 150, are incomplete particularly in that they do not contain the paramount testimonies of the witness SCHLEICHER concerning the confession of one or all of the accused Poles, which supported the verdict of the people's court.
As the facts ascertained proved beyond doubt that preparations had been made for High Treason, and that, in addition, treasonable comfort and aid had been given to the enemy, a death sentence was passed. There would have been no need to refer to the Criminal Code for Poles, which here also was consulted only as a secondary factor. The Exh. Nr. 130, mentioned earlier, discloses that this sentence was passed under the presidency of Senior Judge of the People's Court, LAEMMLE. This very judge has been described as an objective, quiet and sensible judge by Attorney-at-Law BODEN, who was questioned here as a witness. This description tallies with that of the witness for Prosecution GRUENWALD, who called LAEMMLE a quiet, fair and reasonable man who treated the defendants in a humane manner and granted them a full hearing. (German record P. 3848). The witness DECHANT, finally, joins them in every respect concerning this characterization of LAEMMLE and names him a quiet and fair man who, when conducting a trial, never infringed upon the rights of the defendants and listened to and treated them in a humane manner. It is therefore impossible in this case to speak of an unjustified and arbitrary decision by the court, or of an arbitrary clemency de cision by Dr. ROTHENBERGER.
These crimes had been committed by the Poles within the German Reich and, therefore, had to be judged under all circumstances, in accordance with article 4 of the German Penal Code, according to the German Criminal Law. The crimes had been committed during the most difficult times in Germany, in the middle of the war. Treason and High Treason have always been considered to be among the most serious crimes, even according to the laws of other countries. The foreign legislation likewise threatens with punishment the crimes of Treason and High Treason, whether committed by nationals or by foreigners.
As for details, we refer in this connection to the documents contained in Document Book IV A LUTZ, German Text PP. 45-48.
c) Only one indictment has been submitted by the prosecution in the Charvat case(Exh. 509). We refer in this respect to the factual elucidation of the resulting facts as stated by the defendant Dr.LUTZ or his Counsel.
It is uncertain whether the opinion of the sentence tallies with the reasons for the indictment or whether - as may well have been possible - facts have been established which were more farreaching and incriminating for the persons convicted of preparation for high treason and treasonable aid and comfort to the enemy. Dr. ROTHENBERGER, therefore, cannot be charged with having passed a negative clemency decision on the basis of insufficient investigations either by the court or by himself. Now the question remains to be discussed of whether the rejection of a pardon by Dr. ROTHENBERGER must be considered a criminal act under the Control Council Law Nr. 10, if only for the reason that perhaps the establishment of the German Criminal Law in the Protectorate of Boehmen-Maehren was already a war crime under the said law. In order to avoid unnecessary repetitions I refer in this connection to the thorough elaborations concerning the position of the Protectorate under international law, as contained in the Document Book SCHLEGELBERGER. It has been discussed there in detail why the establishment of German Criminal Law in the Protectorate was not a violation of international law, and that the persons involved in this establishment of criminal law did not and could not suppose that this meant a violation of international law. Much less could the prosecutors assume this who pleaded for the sentences on the basis of the German Criminal Law, nor the judges who passed the sentences, nor an Under-Secretary who after due consideration rejected a clemency plea after the sentence had been passed.
The PASCHEN case (Exh. Nr. 141) came to the knowledge of Dr. ROTHENBERGER only later on; he did not participate in the clemency decision.
IX Counts 11 and 23
1) Exh. 135 in addition R's statements, pages 5327, 5376
2) Exh. 142 (for information only) in addition R's statements, pages 5317, 5319
3) Exh. 141 in addition R's statements, page 5318
4) Exh. 130 in addition R's statements, pages 5328, 5376-82, 5443
5) Exh. 265 (no knowledge) in addition R's statements, page 5329
6) Exh. 509 (for want of proof as to reasons for pardon, no stand taken). and Exh. 378, Record Page 2559; only high treason committed by Czech nationals designated as inconsistent with International Law, however not treason and giving treasonable aid and comfort to the enemy.
Now I come to the Charvat case. He was a Czech and I do not need to read aloud the passage covering his case. My colleagues previously dealt with those problems. That was an interpolation - page 52 - but I am not going to read from page 52. I continue on page 53 under No. 10, point 10 of my brief. This deals with the allegedly unlawful executions of hundreds of non Germans:
On page 53 I start with the sentence: "One evening in September 1943, Dr. Thierack --"
X -Count 14/26 of the Indictment This count has to do with the allegedly unlawful execution of hundreds of non-Germans, who had been detained in convict prisons of the Reich Ministry of Justice, and with the alleged carrying out of death sentences without the necessary orders for execution and whilst clemency pleas were pending.
As to the other circumstances of this count, Dr. ROTHENBERGER is not indicted.
As regards the decisions on clemency matters made by Dr. ROTHENBERGER in the case of Ploetzensee, which are in question here, it cannot be denied that the whole accompanying aspects of these circumstances leave behind a shocking impression. It is necessary, however, to examine soberly and impartially the question as to what extent Dr. ROTHENBERGER was responsible for these occurrences, and to what degree he had any knowledge of them at all.
Dr. ROTHENBERGER, acting for Dr. THIERACK who was ill at the time, had been ordered to made decisions on clemency pleas in respect to a great number of persons sentences to death who were imprisoned at Ploetzensee. One evening in September 1943, Dr. THIERACK had told Dr. ROTHENBERGER's adjutant, Dr. HARTMANNwho was questioned as a witness here (compare the letter's account in the German record on page 8635) - that Dr. ROTHENBERGER had "to decide on all clemency pleas by tomorrow morning, even if he had to work all night". Dr. ROTHENBERGER immediately said to his adjutant that this could not be done and that he would not let himself be put under pressure, since he wanted to take his time when working on the cases, This was done too, so that in contrast to the Minister's demand he took two and three days, respectively, for his decisions, on which he had been working in part until late in the night. "A" I now continue on page 54, as follows: "As follows from Exhibits 286----"Special reference is made in this respect to ALTMEIER's testimony (English transcript, Pages 5283-87) and to DERNEDDE's Affidavit (R.-Exh. 32). which show that Dr. ROTHENBERGER dealt with all the cases in a conscientious and careful manner, calling in associates, the Referenton, the acting sub-departmental chiefs, and partly also the judges and Public Prosecutors of the trials themselves. The witness DERNEDDE particularly pointed out that the speeding up desired by THIERACK had not resulted in a more severe treatment of the cases, and that, moreover, the percentage of pardons granted and temporary rejection of decisions, respectively, had not been less than usually. The number of the decisions made by Dr. ROTHENBERGER in clemency matters does not go beyond the usual limits, as the Court can see from the available lists.
Dr. THIERACK's request for speeding up was a consequence of the air raids which had taken place few days before and resulted in the partial demolition of the Ploetzensee convict prison, in the course of which raids some prisoners had escaped. By these raids the guillotine, too, had been destroyed, so that the method of executing by hanging was chosen, With the carrying out of sentences and the penal administration, however, Dr. ROTHENBERGER had nothing to do.
Dr. THIERACK had reserved the regulation of the executions to himself and he himself also gave orders for execution to the Ploetzensee convict prison.
As to the foregoing, reference is made to the corresponding statements made by Dr. HARTMANN, ALTMEIER and DERNEDDE. Of the execution of the convicts by hanging, Dr. ROTHENBERGER learned only at a later time.
As follows from Exhibits 286 and 288, an execution by mistake, owing to a fatal error, occurred in four cases. The documents mentioned above unequivocally show that this was due to an error on the part of a prison official of the Ploetzensee convict prison. On no account can Dr. ROTHENBERGER be in any way held responsible for it, as he was explicitly excluded from the penal administration, a domain which Dr. THIERACK had reserved to himself. What was said before is likewise shown by ALTMEIER's testimony, DERNEDDE's affidavit, and the statement by Pastor Bucholz (German record pages 3681/82). The latter explicitly confirmed that, apart from the four particular cases of erroneous execution, in all other cases of execution decisions on clemency pleas preceded.
Now I shall refrain from reading aloud my argumentation and just refer you to my argumentation in writing. I continue now with Point XI, now shall I even read aloud Point XI. Next we come to the No. 12 and it deals with the NN decree and you will find it on page 57.
The circumstances relating to the individual cases are not evident from the files submitted, so that the Defense is not in a position to take a definite stand on the individual cases. Summing up, the following may be said, however.
It is not correct to say that hundreds of foreigners were unlawfully executed. There were in all cases death sentences, passed according to regulations. Furthermore, in all cases, apart from the four erroneous executions, the question as to the granting of a pardon had previously been decided upon.