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.
The shocking circumstances accompanying the executions were due to the increasing gravity of the war situation and to the air raids. Dr. ROTHERBERGER did not yield to Dr. THIERACK's **mand for expecially speeding up the decisions on clemency pleas, in order not to precipitate his decisions and to be able to make them after having heard all the persons concerned. It has been established that he was commissioned only with decisions on the clemency pleas themselves, but not with the carrying out of the sentences. As far as the Prosecution, in mentioning the unlawful execution of hundreds of non-Germans, refers to the fact that, at any rate, German statutes relative to high treason and treason were applied according to regular procedure to foreigners, and that the latter were executed on the strength of imposed death sentences, the Defense points to its amplifications made in the CHERVAT case. As far as these person are said to have been non-Germans whose offences were committed on German territory - which has not been established for want of any documentary proof - reference may be made, as to the admissibility of their conviction on the basis of the German penal law, to Article 4 of the German Penal Code and to the former amplifications made hereto.
X. Count 14 and Count 26 Exhibit 286, Exhibit 288, statement of Buchhelz, Parson, Page 3680 ff in addition thereto Rothenberger's deposition, Page 5321-5326 and the deposition of the witness Dr. Hartmann, Page 8634-8635 and Rothenberger Exhibit #32 (Volume IV, Page 44-46), affidavit of Carl Dernedde and the deposition of the witness Altmeier, dated 15 July 1947, English Translation on Page 5283 - 5287 and about the fact that no "Nacht-and Nobel" prisoners were in jail in Floetzensee in September 1943, see deposition of von Ammon, Page 6220 XI.
Case 12/24 of the Prosecution.
This count of the Prosecution deals mainly with the illegal introduction of German law and legal procedure in the occupied countries.
Dr. Rothenberger had nothing to do whatsoever with the introduction of German law, nor was he, according to the indictment, made responsible for this Count by the Prosecution. Further discussion is therefore unnecessary. I refer to the verdict in the Doctor's case, in which it had expressly been determined that condemnation is impossible in such a case. It was reasoned, according to the sentence quoted, that the defendant had not been in a position to build up his defense accordingly.
XII. Case 13/25 of the Prosecution.
"Nacht-und Nobel" - decrees.
Dr. Rothenberger likewise took no part in the "Nacht-und Nobel" proceedings. The Prosecuticn even admitted that he cannot be regarded as an offender in this case. The Prosecution Exhibits, number 324 and 312, have been submitted against Dr. Rothenberger, which refer to the "Nacht-und Nobel" proceedings and which had been forwarded to Dr. Rothenberger for his information, with regard to these documents Dr. Rothenberger declared that he had knowledge of only one. It is an established fact that the "Nacht-und Nobel" proceedings, as they pertained to the Department for Penal Matters IV, had from the beginning been removed by Thierack from Dr. Rothenberger's jurisdiction. This way Dr. Rothenberger was not authorized to exercise any supervisory functions, nor was he able to do so, due to lack of information concerning the proceedings. The Prosecution did not in any way demonstrate that Dr. Rothenberger was currently or for longer intervals occupied with the handling of "Nacht-und Nobel" affairs. There is furthermore no proof for the entirely arbitrary statement on the part of the Prosecution, that "Nacht-und Nobel" Cases were among the so-called "Ploetzensee- Cases" )clemency decisions, dated September 1943). von Ammon's witness-depositions even demonstrate the contrary (Records, Page 6220), where, literally in reply to the question whether there had also been "Nacht- und Nobel" prisoners among those executed in Ploetzensee in 1943, he says: "No, I can answer both questions in the negative.
At the time in question, there were no "Nacht-und Nobel" prisoners condemned to death housed in Ploetzensee".
A connection of Dr. Rothenbergen with the "Nacht-und Nobel" cases is therefore entirely out of question also in this respect. Besides, contention of the Prosecution is erroneous when they ask Dr. Rothenberger to prove that there were no "Nacht- und Nobel" Cases among the executions in Ploetzensee.
It is of course up to the Public Prosecutor only, to establish evidence and bring proof for his contrary allegations. In addition, it is this point of accusation of the Prosecution which raises the fundament objection that a conviction cannot result if alone for the reason that Dr. Rothenberger has not been listed as a responsible defendant under Count 13/25 of the indictment. (see verdict Doctor's Case, defendant ROSE.
I now interpolate. I would like to refer to the verdict in the Medical Case with reference to Dr. Rose's case where the principle was stated expressly.
I now pass on to the next point. That is point 13, "Euthanasia, etc."
XII. Count 13 and Count 25
1) Exhibit 312 in addition thereto:
Rothenberger's deposition, Page 5320
2) Exhibit 324 in addition thereto:
Rothenberger's deposition, Page 532 (not acknowledged, not initialled)
3) Exhibit 286, Ploetzensee Execution List and with regard to the fact that no "Nacht- und Nobel" prisoners were jailed in Ploetzensee in September 1943.
Deposition of the witness von Ammon, Page 6220 Exhibit 286, 288, deposition of Peter Buchholz, Parson, Page 3680 ff.
and in addition thereto: Rothenberger's deposition, Page 5321-5326 and deposition of the witness Dr. Hartmann, Page 8634, 8635 and Rothen berger Exhibit 32 (Volume IV, Page 44 - 46) XIII Count 15/27 of the Prosecution Euthanasia, etc.
Dr. Rothenberger has likewise nothing to do with this Count, and has not been charged with any responsibility in this respect. In reference to the Euthanasia question it must be pointed out that Dr. Rothenberger, on the contrary, was a strong opponent of these methods. This is clearly demonstrated by documents found, which have been published after the war in the periodical "Die Wendlung". (Rothenberger Exhibit 85) I introduced that as Rothenberger Exhibit 85.
I now pass on to figure XIV. That is the very important question of evaluating the result of the rebuttal in connection with the examination of the defendant DR. Rothenberger:
An examination is to be made in the subsequent statements to what extent the basis of Dr. Rothenberger's explanations has been shaken by the result of the rebuttal. The person of Dr. Rothenberger will also have to be discussed in this connection. It has been confirmed by the evidence (testimony of Becher) that he did not join the party until 1933 and that his acceptance into the party was later pre-dated. This witness further confirmed, that Dr. Rothenberger did not become the legal advisor to Reich Governor Kaufmann until 1936/37. As Judicial Senator (Justizsenator), Dr. Rothenberger naturally occupied a difficult position as would be common in the transitional periods of any revolution. His immediate and sole superior, Kaufmann, as well was at first anything but friendly to the judiciary, as Dr. Rothenberger has clearly stated in the Document, Exhibit 76. On the witness stand Dr. Rothenberger himself remarked how he at first had difficult experiences. It cannot be denied that at that time abuses occurred in the police prisons--concentration camps were established only at a later date--against which the judiciary was at first powerless (see testi mony of the witness Buhl). Thus Dr. Rothenberger in July of 1933 had to accept the decision of the Reich Governor, who as the trustee of the highest government authority in Hamburg had the right to quash proceedings, in the case of Elkan (Exh.
598). It is clear that this decision can only be considered as a political one in a revolutionary period. The second case, Dusenchoen, which Dr. Reuter mentioned in Exh. 599, could not be recalled by Dr. Rothenberger without documentation. Dr. Rothenberger only learned subsequently of the case, Buhk, through a report of his Referent from which no suspicion of murder was to be inferred in any way. The aforementioned letter of Dr. Reuter (Exh. 599) can have no value as evidence in any way. First of all, it is a report drawn up after the end of the war regarding events which occurred ten to 12 years age. Dr. Reuter, who himself was a member of the anti-Semitic, people's movement--as is shown by his report--thereby attempted to obtain for himself a professional job in Hamburg and the possibility of moving there. The file notation of the deputy president of the Court of Appeals at that time indicates the entire questionable character of the statement of Dr. Reuter which overflows with resentment and self-glorification. According to his report to the deputy president of the Court of Appeals, Dr. Reuter was acquainted with the so-called agreement between the four persons (Vierervereinbarung) only through Judge Vincensen who was interrogated as a witness. Wentzenzen on the other hand allegedly heard of this from a Commissar of the Gestapo on the occasion of the case Buhk. It is significant that Vincensen stated conclusively in his testimony (Page 8765 of the German transcript) that he did net discuss further with Dr. Reuter why the files came into Wentzenzen's hands by mistake. The witness said nothing of any agreement between persons (Vierervereinbarung) which was allegedly the reason for this.
Dr. Rothenberger knew of abuses during interrogations in the Police Headquarters and in the Police Prison at Fuhlsbuettel shortly after the assumption of power. The questioning by the public prose cution during cross-examination however followed another line.
Attention must be called to the fact that the prosecution inquired twice at that time as to abuses during 1941/42 and even in 1931/32, which Dr. Rothenberger could not recollect, try as he might.
It should be self-evident that Dr. Rothenberger would not be in a position to recall certain names after twelve or thirteen years and longer. The director of the Gestapo in Hamburg at that time was never a "friend" of Dr. Rothenberger; every proof is lacking to substantiate the assertion of the prosecution. Dr. Rothenberger merely knew him in an official capacity and nothing more. We do net deem it necessary to go into the evaluation of evidence again of individual cases. It should only be remarked in general that it presents a completely false picture, if individual incidents of this transitional revolutionary period be regarded as symtomatic of the further development in Hamburg. Dr. Rothenberger actually succeeded in creating a completely satisfactory relationship between the party and the judiciary in Hamburg. This was only made possible by his conscious desire that legally trained jurists join the party and its affiliations so that in this way the sane elements in the party could be strengthened (see testimony of Priess). The assumption of the functions of the Gau leader of the National Socialist Jurists' League (NSRB) in 1935, and those of the Gau director of the legal department in 1936/37, came about for this same reason. His proposal to have reports made the SD (Security Service) by jurists - rather than informers antagonistic towards the judiciary - was based on the same idea (see testimony Timmermann in NG-825, page 8817 German transcript, Exhibit 433, and affidavit of Dr. Harmsen R'Exh. 87). It can be adduced quite clearly and unequivocally from this last-named affidavit what reason motivated Dr. Rothenberger to have his own jurists function as confidents for the SD, namely for no other reason than to prevent the SS from gaining an insight into the judiciary in Hamburg through its (the SS) own confidants.
If one considers the overall situation in the Hamburg judiciary, then one must bear in mind that between 1935 and 1942 some 30,000 criminal cases yearly, that is approximately 200,000 cases en toto, were pending.
If there were any cases t this time (Janssen, Karutz, Vathje, etc.) against which objections are being raised today by the prosecution, then under no circumstances can it be considered proof that Dr. Rothenberger lowered the standards of the judiciary. The facts prove the contrary. The measures by which Dr. Rothenberger brought about a gradual limitation of the political influence of the party upon the administration of justice in Hamburg are as follows:
In 1936 or 1937 the order of the Gauleiter that no political leader be permitted to interfere directly with the administration of justice (testimony Becher, page 8596 of the transcript). Similar measures are evident from the prosecution documents Exhibit 588, Exh. 594, and from the situation report of the defendant dated 12 March 1942. Rothenberger Exhibit 26, Attention should also be called in this connection to the testimony of the defendant Dr. Joel, according to which there was no necessity at all for him to intercede against abuses which occurred in Hamburg.
THE PRESIDENT: Dr. Wandschneider, instead of running over into the noon hour at this time it may prove more convenient for defense counsel with reference to their luncheon if we adjourn now at the usual time and convene 15 minutes earlier at one-fifteen and I think that will suit your convenience better. We will now recess until one-fifteen:
DR. DOETZER: I beg your Pardon, Your Honor, but I had to come back to the microphone. Dr. Doetzer for Dr. Aschenhauer and his client, Dr. Petersen: Your Honor, the defendant Peterson for the past three days has been suffering from an inflammation cf the lymph, a very serious one and the doctor has advised him to stay away from the afternoon session and we would like to have him excused.
THE PRESIDENT: We have heard of the request and his request is granted at his own request. He may be excused from the afternoon session.
DR. DOETZER: Thank you very much.
(The Tribunal adjourned until 1315 hours)
AFTERNOON SESSION
THE MARSHALL: The Tribunal is again in session.
DR. WANDSCHNEIDER: I continue with my final plea pertaining to the defendat, Dr. Rothenberger. We were under Item XIV, of my plea on page 62 of the final plea. I commence with the sentence beginning with the words: "In order to protect the judges, Dr. Rothenberger assumed the burden of all the complaints by the above-mentioned, measures. Naturally, in certain cases complaints were also justified. When he had discussions with judges, this condition was naturally somewhat unpleasant and far from ideal. However, in such cases Dr. Rothenberger attempted to obviate any feeling of intimidation through the nature of his trial, as was substantiated by Dr. Oehlkers. Incidentally, in the cases of Karutz and. Vathje he expressly approved the conduct of Judge Oehlkers. Even though such conferences were not desirable, under the circumstances under which the judiciary existed in the National Socialist State, they were still preferable to a condition which exposed the judges without protection to the attacks of party offices antagonistic to the judiciary.
Dr. Rothenberger is charged by the Prosecution of being possessed with a ruthless and unprincipled ambition. The Prosecution does not deny his great ability. The Prosecution very wisely cannot contest the fact that no objection can be raised against a strong ambition if this also embodies equally great positive qualities, which are manifested with the help of this ambition. However, is the statement of the Prosecution correct that he unscrupulously sacrificed all other considerations to his ambition? No! Is it not true that he as one of the few leading jurists in Germany had the courage to protest publicly against the Gestapo methods! Did he not in numerous cases protect judges and officials subordinate to him against attacks of the SS and the SD! Is it not true that he tried untiringly to bring about more moderate views in the judiciary!
Did he not very often in his personnel policy successfully retain and protect intelligent and serious individuals who were disliked by the party or the SS! Was he not in reality a tolerant man - perhaps contrary to his own better judgment - who retained Jewish judges in their offices as long as possible, and took care of the further payment of their pensions and even had them transfer abroad!Is it not a fact that for many years the mild administration of justice in Hamburg induced the Reich Ministry of Justice to raise objections! Has it not been established on the basis of the present leading anti-Fascist of Hamburg, that this city represented an exception during the period of National-Socialism which differed in every respect from the conditions in the rest of Germany! (See affidavits Ruschenweyn, Kiesselbach).Again, was not Dr. Rothenberger one of the very few leading jurists in Germany we attempted to raise their voices against the murder of the mentally deranged! Towards the very close of this trial, did not a witness in his affidavit describe graphically how in 1943 Dr. Rothenberger contrary to the instructions of an SAFuehrer lent his efforts without surcease, along with those of the witness, to saving the household goods from the burning home of a Jew!Is that the picture of a man whom the Prosecution would characterize as an unprincipled man who refused to listed to reason, who followed his limitless ambition! It is obvious that the Prosecution has simplified the matter and has grossly distorted the picture of Dr. Rothenberger's character.
The Prosecution is correct in one respect when it states that Dr. Rothenberger made no great impression while on the witness stand. Whet caused that?
Dr. Rothenberger is a person possessed of such great inner conflicts, which however are usually suppressed, with the result that a judgment of his character is made extremely difficult for an outsider. On the one hand he is a dynamic man, on the other hand he is a man of changing moods, as has been testified to by the physician Dr. Stender and his friend Dr. Wiegelmesser.