Germans, page 6727 and following, 6729 and following), and that, last not least, because he generally distrusted administrative directives.
(Schroeder, English transcript page 7044, German transcript page 6791).
The decree of 1 September 1939, the result of the national emergency according to its purpose, offered no legal means for reprimanding a judge for the pronouncing of too light or too harsh a sentence by transferring him in violation of article 8 of the Law concerning the Structure of the Judiciary. The practical application of the decree in an individual case, as in the case of Rothaug was a misuse, Rothaug exhibit No. 35 states the following print of view of the Ministry. "And there is nobody who is more afraid, that the administration could make wrong use of that liberty in order to reprimand a judge 'who has made himself objectionable' through his sentence, etc." End of quotation. (Rothaug, English transcript, page 6999, German page 6752/53.)
The purpose of the directive, that the public prosecutor should keep in touch with the court, is evidenced by a speech held by Guertner (Rothaug exhibit 3). Its purpose was to avoid before the Public a major discrepancy of the judgment and the penalty proposed by the public prosecution, and to give the public prosecutor the possibility to check his opinion against the of the court with this aim in mind. Its purpose was not to exorcise influence on the court behind the scenes. The question was not as important as it is made today. (Rothaug exhibit 192.)
Rothaug would not admit any discussion on that subject. Today the fact that the public prosecutor had an approximate knowledge of the stand of the court is interpreted as the acceptance of an order. Things however were not like that. (Paulus in the English transcript, page 3787, German page 3747 and Schroeder, English transcript page 704, German page 6790.)
The fact that the contact was established immediately before the final pleas were made rejects the charge that the presiding judge was biaised in his opinion, because he had read through the files before the trial.
The establishment on 36 April 1943 of provisions for disciplinary actions against violations of judicial duties, issued in form of a law and placed in the hands of Hitler, subjected the judge to the political pressure of proceedings against him which gave him no guaranty of an proper trial, even though those provisions remained on paper only. This was, since 1933, the background for the work of the judge and its result the judgement.
II.
Professor Jahreis explained the facts leading up to that situation from the historial, legal and generally psychological view point. (English transcript page 4354, 4264 , 4275, German page 4199, 4209 and 4218).
In its desire to obtain stable conditions, the people, restless and homeless, choose dictatorship coming from the right, in order to escape that from the left.
The position of the judge and public prosecutor who grew up under a different regime with different legal conceptions was a difficult one, because the new state demanded loyalty to its state doctrine. (Schlegelberger exhibit 71, document 78.)
For a man of character and value there was only the alternative to go or to struggle with himself to find an open and honest attitude towards the new political surroundings.
Rothaug, who had nothing to do with the development of that situation, in 1936 finds has inner peace by recognizing that the fateful interindependence with the NSDAP of the state, wanted by the overwhelming majority of the German nation, recognized by the entire world inspite of concentration camps, racial laws and dictatorship, for better or for worse, was a fact. His positive attitude towards the national socialist state resulted from that and became more firmly rooted, the more the pressure from outside finally leading into war increased. Rothaug had no doubts about the just cause of his fatherland. The fate of the fatherland was at stake even if the German people through deception and through crimes committed by its leaders had been led into that terrible position.
III.
The almost complete lack of men in the country, the reduction of the safety provision to a minimum, the replacement of labor by armies of foreigners, the air-raids making the country on actual war territory and resulting in enormous losses in human lives, the isolation of huge areas through the destruction of communication lines, the constantly increasing number of sabotage crimes committed by the Poles, which were encouraged from abroad, made understandable the harsh war legislation and the harsh jurisdiction, resulting of necessity from it, a jurisdiction placing the idea or protection above that of punishment. After all the protection of the very life of millions was at stake. The charge concerning the aggressive war does not consider that the Defendants as well as people in similar positions in other countries were convinced of the just cause of their fatherland.
The idea of genocide, annihilation of alien races, asocial elements and political opponents by means of the cumbersome machine of justice, whose actions took place before the eyes of the public, would have been absurd in view of the entirely different powers of the Government which have now become known, especially in view of the dire lack of manpower throughout the country.
Neither were there any extermination tendencies as far as the applicability of article 51 of the penal code was concerned. In no case was a person punished, when article 51 of paragraph I could be applied. As to the question of the possibility of mitigation of the sentence according to article 51, paragraph II the special court followed the principles developed by legal theory and precedents of the supreme court (Rothaug exhibit 39, 38, and 40.)
Even in trials against political opponents, punishment demanded on the act complying with the constituent elements of a crime and that demanded proof for intention and absence of excuses in such cases, the law was directed against everybody and applied to everyone.
The evaluation of evidence on the basis of the general attitude of the perpetrator towards the state and its goals does not alter the basic fact that legislation and jurisdiction are directed against everybody without discrimination.
It seems to me of grea.t importance to decide whether criminal prosecution means the same as the concept of persecution in the sense of article II, figure 1c) of the Control Council Law No. 10. An example for this is the case of Wiesenberger.
With Rothaug as the presiding judge this man was sentenced to a term in the penitentiary of three years because of an offense against the law against malicious attacks and considering his criminal previous life as a habitual criminal, he was shot by the Gestapo for the same crime. Would the Control Council Law No. 10 place this conviction which was in keeping with the laws on the same level as the illegal shooting?
The jurisdiction attacked here is based on laws which originated at a time when Germany, whose internal conditions were known to the whole world, with its legal structure and its national legislation, was recognized internationally.
The verdict of the IMT sees in the Control Council Law the formulation of existing international law. It is in agreement with this, that as a result of the defeat this recognition is subsequently rescinded by the fact that this legislation and its subsequent jurisdiction are made the basis for charges of criminal offenses of an international nature against people who exactly from the fact that the Reich had been recognized by all the other States could not but assume that its legality was guaranteed?
I now interpolate. One further question. In article VI-c of the Statute pertaining to IMT, the competency of the military courts in connection with crimes against humanity require as a pre-requisite which indicate that these crimes must have been committed against peace (Article 6(a)) or committed against the laws and usage of war Article 6(b) or committed in association with these crimes. Therefore, the conclusion arose from this limitation that the military courts were not appointed just generally for the purpose of examining files of the German State against its own nationals, which is in violation of International Law.
Crimes against humanity must be committed wilfully in awareness of its illegality. There can be no doubt about that. But in the case of no defendant was it asserted, and certainly not proven, that they were aware of the fact that Germany was waging a war of aggression. Consequently, they cannot have committed any crimes against humanity in execution or in connection with aggressive war.
With regard to the alleged commission of crimes against humanity, in the execution of a crime, according to Article 6(b), or in connection with such a crime, the following is to be observed in regard to the judges and the public prosecutors:
Criminal proceedings conducted against a definite person are an individual proceeding without any internal or external association of any proceedings. There can be no doubt that a criminal proceeding against a German national, if Article VI (a) is eliminated, can only then justify the competency of the military courts according to Article VI (c). if these proceedings were carried out in execution of a crime against the rights and usages of war, or carried out in association with such a crime. But this is unthinkable in the case of proceedings against a German national because both usage and law of war protect only the opponent and not the own national. If the individual character in such proceedings then could thereby obtain complete isolation of proceedings against other persons; for example, against foreigners against whom it would be possible to commit crimes according to Article XX VI (b) of the basic law, these facts in addition exclude that crimes against humanity can be committed by criminal proceedings against German nationals in the execution of war crimes against foreigners or in association with such crimes.
"In proceedings against foreigners only Polish cases are of any importance in the case of Rothaug. (Ferber, English transcript page 1739)
a) In all cases, the Poles had put themselves voluntarily at the disposal of the German war potential (Verdict Lopata dated 25 October 1942.
Prosecution Exhibit 186, Dorfmueller, British transcript 3214). (Heinz Hoffmann, Rothaug Exhibit 51) and Rothaug Exhibit 120.
(b) The foundation of their personal and general conditions was a voluntarily concluded labor agreement. Their tie to their place of work was the same as that of the German worker.
(c) Without wanting to undertake the defense of the legislation concerning the Poles, I have tried to show in the Rothaug Exhibit 215, the criminal condition which was to be counteracted by the jurisdiction against the Poles , but in this it has to be considered that this criminality arose after very considerable American forces had taken over the protection of the country.
(d) On top of this, there was the encouraging of the Poles to acts of sabotage by means of the enemy radio and leaflets. The attempt of repulsing the danger by the Germans should not need to be justified. (Ohler, English transcript page 7152, German transcript page 6897); as well as Rothaug exhibit 50).
(e) May history once shed light on these affairs, which are being debated here with juridical limits, for me it has to suffice to prove in what way the problems were being seen at the official places and in which meaning they were presented to the judges. In this respect I would like to counter with all necessary energy the representation, that the judge with respect to the alleged wide range of penalties would have been able to conjure from harsh laws a mild jurisdiction, only because this seems to be more profitable today. (Rothaug exhibit 113-117).
(f) The SD-agent Elkar states, that even without the decree concerning the Poles Rothaug had arrived at the same results. A glance at the index of death sentences of the Special Court Nuernberg (Prosecution exhibit 238) shows the untruthfulness of this statement."
In the Reich, the Poles were distributed at irregular points. In the area of the District Court of Appeals, Nurnberg, there were 10385.
exclusively Poles allocated. The Poles who worked in the country area around Nurnberg and became subject to punishment were proceeded against in Nurnberg. It is important to say here that a Special Court of Nurnberg worked in three shifts, of which two shifts worked in the entire area of the District Court of Appeals.
V.
"The question, whether or not the Special Courts, and the Peoples' Court can be characterized as illicit exceptional courts, is the subject of the combined defense.
The nomination to the Special Court Nurnberg, which was in the hand of the Presiding office of the Court of Appeal, was not being effected according to political joints of view (Rothaug, English transcript page 6789, German transcript page 6561). Neither was it true, that the Special Court Nurnberg was composed of Anti-Fascists, with the exception of Rothaug , as his co-workers seem to have to state to in reviewing the situation with a vision dimmed by their purpose. Rothaug was not even a candidate for the Party when he started on his job. (Denzler, English transcript page 7118/19., German transcript page 6846). (Rothaug exhibit 211.)
Neither had he proved himself in the administration of penal-law in political matters.
Neither did his co-workers have any political significance at the time they were appointed.
VI.
It is decisive in the problem concerning the judge's relation to the law (Jahrreis, English transcript page 4330 ff, German transcript page 4261 ff) that the German judge, in administering the law during all political systems, only had to examine the orderly publication of the law and that he was forbidden to examine; the legality, the necessity, the usefulness, the ethical value and the international acceptability of the laws.
This prohibition was absolute in its nature, that is, the judge was not allowed to express in any point of his decisions, and that is to say not even in the measure of punishment any personally diverging considerations concerning these legislative problems.
Thus the judge and the Public Prosecutor who, in his activity was placed in the same position as the former, were just in those points deprived by the constitution of the right to examine and the power to decide against the laws which are the central points of these proceedings.
On all these points the decision had to be made by the State leadership in sovereign liberty, in the fields of legislation and administration of the law which were its sole domain. Therefore it also had the constitutional and international responsibility for them.
By showing up this constitutional reality, the judge does not want to hide behind his office, but he wants to assert that as concerns all these problems he was not granted any power of decision, but that this was beyond his office and that in this respect be neither perpetrated nor was allowed to perpetrate a human act by acting positively or by neglecting to do so, not even a criminal one.
His activity was confined to recognize and to state the will of the laws. It was a perception, not an intention.
To the problem of the judge's position to the law, his obligation to be loyal to the law, Rothaug exhibit 29.
If by the three judgement of the judge were meant that he was free to apply mildly the harsh law against the will of the law, that is to falsify its will, in opposition to his own conviction of the real will of the law to give leeway to his own diverging will then this opinion is completely right. He could do that, he could alter murder to manslaughter, a bodily injury with consequential death or a homicide through negligence, but he was not allowed to do so because such a proceeding would have defeated the ends of the law which stipulated punishment by penal servitude. With such a clumsy solution one did not get any nearer to the case of the problem. Actually the German legal order does not know of any free opinion of the judge in that sense, that there wore any law of even a, penal law, in which it is said, that that should be law, what the judge, detached from any legally systenatical ties and law obligations took to be law, or that it should be law because the judge wanted it to be so.
In the case of all provisions concerning the range of punishment, first of all the actual wording of the threat of punishment is important If the threat of punishment as for instance in the law for the guarantee of the public peace, read. The punishment will be Death, or penal servitude for life, on 15 years of penal servitude", then that meant that the will of the law was such, that as a general rule the death sentence had to be given.
The especially severe case as it occurs for instance in the decree concerning public enemies, constitutes an aspect of the facts, not a basis for the amount of the punishment to be inflicted (Circular decree of the Reich Ministry of Justice, read in the English transcript page 7332/ 33, German transcript page 7064/65.)
This was a legal problem to be re-examined by the Reich Supreme Court, withdrawn from the jurisdiction of the judges.
In the case of Wendel the appeal concerning irrelevancy was successful as the Special Court under Rothaug had not considered it to be a particularly severe case by reasons which the Reich Supreme Court did not approve of (Prosecution exhibit 245).As the particularly severe case constituted a characteristic aspect of the facts, it was not a case of applying provisions concerning the range of punishment, but it was clearly a case where the law provided the death penalty.
As another decisive factor there is the doctrine of the approtioning of the penalty (Strafzumessungslehre) (Rothaug exhibit 7, Document Book I A, especially English transcript page 62, German transcript page 62.)
According to it, the Court is not formally bound as concerns the measure of the penalty, but actually there exists a legal obligation here too, for the Court is not permitted to reach its decision according to its individual opinion ("according to common sense", according to every day impressions, far less with the assistance of a philosophical or sociological theory), but has to reach it on the basis of positiveactua1 (leading) doctrines concerning crime and punishment and to apply them directly and according to their meaning: It reads as follows:
"The finding of the concrete penalty incurred according to all this stands in inevitable inner relation to the principles as acknowledged by positive law as well as to the individual decisions made according to it. It cannot be taken out of it or be isolated from this firm structure without mis-interpretation.
The doctrine of the apportioning of the penalty, so to speak, is determined by the longitudinal section of the whole of the system of criminal regulations. This inseparable connection especially exists as far as the penal conception of the valid law is concerned. "End of quote. It is further shown that the judge cannot pronounce either art especially mild or an especially harsh penalty because his views on criminal policy differ from the law, and that the judge is not allowed to pursue his own divergent penal policy. In this connection, the position of the attacked legal interest in the scale of values of the national community is especially emphasized as a guide.
What has to be understood by the scale of values results from the same piece of evidence. There "The nation, understood as a biological-sociological organism," takes top position as "the foremost and highest value". It reads: "The nation as such is in need of legal protection -- as a community of the blood of the German generations -- in order to preserve the purity and to increase and continue the race and the hereditary substance."
That was the real position of the German judge and Public Prosecutor held concerning the problem of determing the amount of the penalty. The important question: could obligation to the law lead the judge to a tragic impasse, if he applied a law which was unethical, unconstitutional, and in Violation of international law? The question must be answered in the negative; because questions of ethical value, necessity or usefulness, constitutionality and conformity to international law, were not within his power of decision.
Thus Hyde, the American scholar, saw the essence cf the problem in the fact that the element of conflict could not be eliminated by a jurisdiction contradictory to international law, but he did not see it in the responsibility of the courts acting within the limited rights of their office.
A further question: The duties bf the office of the judge were completely fulfilled by the judge's passing sentence and not by his expressing his own will, and as a result of this very fact the judges were essentially different from the various Amtsgruppen mentioned in Article II paragraph 4a of Law No. 10, the Amtsgruppen of the Supreme Head of the State (Staatsoberhaupt) and of the responsible government officials, whose official characteristic consists of the realisation of their own will towards a certain goal; whereas in Paragraph 4b of this law, persons are mentioned who carry out this will under orders.
Judicial activity has nothing essential in common with either the one or the other group. Rothaug Document Exhibit 7, page 61 of the English text, and page 61 of the German text, states as follows:
"According to this determination of the law is exclusiverly the task of the source of law.
The judge merely reads off the application of the law: basically, he has no share in the creation of the law (as in the exercise of the right of pardon).
(Reich Supreme Court in Penal matters, Volume 75, page 43.)" End of quotation.
The activity of the judiciary is thus moved out of the realm of the will of the state. Its result is a condition but not the cause of the will of tie state; because at all times the power of the judiciary to pass judgment has been confronted by government with its complete sovereign freedom to make decisions.
Whoever is allowed to "exercise his will" can also mark out the limits of his will, but whoever must merely determine another's will and its limits, has no power to alter these limits unless he acts in a manner contrary to his duty. In this activity he does not carry out another's will either."
Interpolation. The following section, Roman VII, deals with the official surroundings of Rothaug. I do not propose to read it, I wish to point out particularly that towards the end of this section the charge is refuted according to which Rothaug had given false testimony on the correctness of the draft of the Schlamminger verdict.
(Follow parts ommitted in the reading).
VII.
"Now, concerning the relation of Rothaug to his official surroundings:
On this subject, persons have given reports who worked with Rothaug as judges, prosecuting attorneys, or doctors, and have been made responsible for their activity in their denazification and rehabilitation trials. All of them were members of the NSDAP and exercised some function or other, or like Groben, Kinz, Baur, and Mayer, marched in the ranks of the SA or the SS for over a decade, or, like Wilhelm Hoffmann or Markel, were confidential agents in the SD.
Instead of standing up for their acts like men, they try to hide behind a fictional pressure, which, significantly, is called by various names, according to the character of the man making the statement! Terror, hypnosis, suggestion, magic, mental superiority excessive will power. They exaggerate his position of political power, which is supposed to explain everything. Thus, basically, nothing has been heard but the defense of these witnesses concerning their own affairs, with the aim of shifting all the guilt upon Rothaug.
The best recommendation for our case, if one leave it as it is, in the florid but basically unchanging method of incrimination, which, in its choice rheterical formulations, only seldom reveals a concrete factual statement. The aim which they are pursuing could not be revealed any more clearly.
In refutation of this, I bring the following The Nuernberg Special Court was held with continually alternating groups of judges, but had a uniform method of jurisdiction on those staffs, without even one witness having appeared and said, nor could he have said, that Rothaug had influence the staffs of which he was not a member or that he even attended a single trial.
Measured by the abundance of work which has to be done, the infrequent incidents of official friction which occured are not worth discussing up to the debacle, Rothaug's behavior toward all who appeared against him was correct and friendly, and sociable and comradely towards his superiors. (Dehller Transcript, page 7117 of the English text, and 6863 of the German. Schroeder Transcript, page 7028 ff of the English Version, and 6776 ff of the German, Behs Exhibit 205, Klether Exhibit 200, Keller exhibit 53, Koch Exhibit 211.) Oeschey Transcript, page 8754 of the English Version, end 8386 of the German.
The judgments at the Nuernberg Special Court were the result of legal consultations, during which everyone could and did express his opinion. The verdict was signed without exception by all the judges participating, and thus acknowledged to be the legal result of the consultation, and then, after the consultation, read out as the judgment of the Court.
Witness Koch, who during the Spring of 1943, served as judge at the Nurnberg Special Court for 8 weeks, has truthfully stated that everyone could and did express his opinion, until the verdict had been reached.
General Public Prosecutor Bems has stated that it is not true that Rothaug exorcised undue influence within his own sphere of jurisdiction or within that of the Prosecuting Authority. (Rothaug Exhibit 205) as well as (Schroeder Transcript, page 7041 of the English version, and 6788 of the German.)
No one was employed on the Special Court against his will, and Ferber and Groben were employed on their own request.
Apart from Mayer, who was in the SS, no member of the Special Court ever tried to exorcise any additional official function, even though for many reasons this was at all times possible. Landgerichtsrat (District Court Judge) Hermann (Oeschey Exhibit 1), shortly after taking over his duties at the Special Court, was assigned additional duties as well, for reasons shown in Rothaug Exhibit 225.
Keller, the direct superior of the judges at the Special Court, states as follows: (Rothaug Exhibit 53): "I am convinced that under Rothaug, there was complete unanimity at the Spccial Court, I believe I remember that members of the Special Court, as, for example, Ferber in a conversation with me, praised the esprit de corps and harmony there. At any rate, except for Mayer, no member of the Special Court, ever complained.".. ....End of quotation.
At this junctunre, I refer to Exhibit 216. The fact that Pfaff, in loyal respect for his presiding judge, Rothaug, refers on the back of a photograph, dating from the fall of 1942, to an "unforgettable autumn" certainly indicates that life was by no means hell at the Numberg Special court.
All that remains to he said about Rothaug's position of power is that in 1936, he acquired a positive attitude towards the NSLAP, that in the Spring 1938, he became a member of the NSDAP, that from 1940 on, he performed some short-term work for the SD limited to conferences, and that from 1939 on he served as a Gruppenwalter Group Administrator) in the professional association of the Rechtswahrerburd (N.S. Lawyers' League) When he was appointed to serve in Narnberg, it was merely due to his wellknown professional reputation before and after 1933.
He had no connections whatsoever with the Gauleiters of Franconia. (Zinnermann Transcript, page 7136 of the English version, and 6881 of the German) He saw Streicher 5 times and spoke to him 3 times on matters of no importance. He never saw Striecher's estate - He knew Zimmermann merely as a hotel guest and had no personal, party or official connections with him. (Transcript, page 2136 of the English version and 6881 of the German.)
His conversations with Holz were limited to discussions of the Ramsteck affair, to the meeting with Thierack at the Deurscher Hof, on the same matter, and to the disclosure of the letter from Thierack concerning his transfer to Berlin (Rothaug Exhibit Transcript, page 6849 of the English version, and 6615 of the German). Rothaug's relationship to Gauinspokteur Haborkeim:, which is at the root of all the baseless conjectures made about him' by people who knew nothing whatsoever about his private life, was - and this by the way was not widely known, - on a personal basis, going back to 1926 (Transcript, page 7137 of the English version, and 6882 of the German); One single concrete episode was referred to, without any evidence having been brought for it, which was to support the contention that Rothaug had settled official and party matters through Haberkern, and that in the presence of Zimmermann, Haberkern bad given him the Ramsteck files. This claim had already been the subject of an official investigation, and been proven completely unfounded.
Zimmermann too called this claim false. (Transcript, page 7141 of the English version, and 6885 of the German.)
The charge that Rothaug received secret directives, orders, or opinions from Party offices, from the SD or from the Reich Main Security Office, must be countered by the statement that no-one ever saw such a thing. It could not be demonstrated that a single concept had been developed from such a directive etc, nor does any judgment contain any indication of it. Finally, reference is made to the esteem which Rothaug apparently enjoyed in Political-and official natters of the Party, according to a letter from Holz to Thierack (prosecution Exhibit 554) and to a letter from Thierack to Lammers (Prosecution Exhibit 433.) - These letters were of a kind usually containing praise. Martin, former Police Chief of Nuernberg, who overthrew Streicher, states:
(Exhibit 49). "I would be completely ridiculous to assume that Rothaug had any influence over the political leadership of Gau Franconia. As I have already said, Rothaug was not well-liked by the men in authority in the Gauleitung (Gau administration). There was practically no contact at all."
Rothaug's relation which the SD, which was exploited by his farmer Referendar (Post graduate legal assistant), who made use of Rothaug's experience and knowledge, in his morale reports for the domestic news service.
These were brief completely frank conferences held at long intervals even in front of Rothaug's co-workers. In addition to basic questions, it is possible that an individual case was brought up as an example, for the sake of explanation. The name and the outcome are unimportant. The conferences were begun after consultation with higher authorities. On the basis of Elkar's statements, Rothaug assumed that the SD had an official character. The activity to which only little time had been devoted served to inform the Supreme Reich Authorities how the public reacted to any kind of act by the State, and what attitude was held by professional circles concerned.
At the end, Elkar's main occupation was that of an SD-Hauptsturmfuehrer (Captain). The tendency expressed in his statements, with a strange kind of gratitude and honorableness, was clearly recognizable, namely to shift his professional activity in the SD onto Rothaug and to pass himself off as quickly as possible as a clerk or a "letter-carrier." Rothaug never learned anything about other tasks and duties in the SD. He had nothing to do with the Reich Security Main Office. Witness Martin (Rothaug Exhibit 49) stated as follows: "Rothaug never belonged to the SS or to the SD. I knew that he had connections with SD Fuehrer Elkar and advised the letter, who managed legal matters in the SD-Abschnitt (Sector). Several times, I myself read reports from Elkar to the Reich Security Main Office, concerning the administration of justice, because, out of personal interest. I had asked for a copy. These reports, obviously influenced by Rothaug 2 expert knowledge, were moderate and reasonable. I cannot remember ever having read anything inflammatory in these reports. According to the apprendix to the judgment of the IMT this was not a criminal act, because Rothaug was not a member either of the SD or of the SS.
There was no connection to the Gau administration Bayreuth, in the arca of which Rothaug conducted his main activities. It was a mere coincidence that he came to know lie Kreisleiters of two smaller localities with whom he had neither official nor party contacts. He knew no SD office outside Nurnberg. There were two occasions when a man from the local SD officially called on Rothaug in some minor affair. Rothaug received both men in the presence of his assistants. Everything constructed by Ferber in this connection is untrue.
But the most misleading factor is Ferber's idea, that judges could be shot by the SD for their judicial activities. This thought is completely ridiculous to anyone who was acquainted with the situation at the time.
Martin stated the following (Rothaug Exhibit 49) "When the assertion is made that judges in consequence of their judicial activity could have exposed themselves to the danger of police measures or would have had to fear such measures, I can only call such an assertion were nonsense which no one could have seriously believed.
I did not hear of a single instance which would justify the mere thought of such a measure.
Rothaug himself has dealt thoroughly and convincingly with the question of the "exclamation mark in red pencil", the selection of Court room 600 and the withholding of files.
On the question of the relationship between presiding judge and defense counsel, Rothaug Exhibit 191 and 192 have been submitted. Mayer, (English Transcript page 3545 ff) who acted as counsel for the defense in a large number of cases before the Nuernberg Special Court, and Kreber (English Transcript page 3491 ff), in cross-examination, described the conducting of proceedings, as it affected the defense, as strict but legally correct.
The subject of the associate judge's right to ask questions is dealt with in Rothaug Exhibit 191. Ostermeier intended the questions to be put through the presiding judges. But Rothaug was entitled to refuse.
Besides, there is no induction whatsoever as to whether, in view of the issue, such question would have had any meaning at all.
Alternations of draft judgments as in the Schlamminger case with which the defendant was charged in cross examination, were customary in all penal divisions all over Germany and were in keeping with the law.
The charge of perjury, brought in this connection by the prosecution in its final statement, lacks all foundation for the cross examination produced no evidence at all as to the contents of these alterations and, even concerning the extent thereof, the Prosecution was not in a position to dispute substantially Rothaug's estimated figures although the incident took place 9 years ago. After all, it was not a matter of a statement concerning actual facts, therefore it can by no means be called perjury.
Nobody refused to sign because the judgment contained factual or legal statements or conclusions which die. not result from the proceedings. Only an objection of such a nature would be significant.
Medical experts were asked for the medical reasons for their opinions. Their written opinions nowhere have a political aspects Those considerations in themselves prove the lack of justification for the charge that "they had not been allowed to interfere". Under article 511 of the Penal Code, a person of unsound mind could not be made into a legally fully responsible person even on political or juristic grounds.
Under article 51 II, the Court could in any case use its own discretion These expert opinions had been sollicited not for the Court, but for the Prosecution to decide whether charges were to be preferred If the doctor pleaded that article 51 I of the Penal Code be applied, the charge was dropped.
Thus when giving a verbal opinion before the Court, the expert had already elsewhere expressed his decisive point of view.
The very existence of such a constallation proves the flimainess of the attempt of these men to shift their own responsibility onto the Court and its presiding judge and shows that they are acting from alterier motives.
It is untrue that the Nuernberg Special Court on principle rejected the mitigation --of sentences pursuant to article 51 II. Whenever this was done, the reasons for it were in keeping with the recognized legal doctrine and with jurisdiction by the Supreme Court.
VIII.
Now to the question of Rothaug's function as Gaugruppenwalter in the National Jurists' League, his position in the Doebig affair and count IV of the indictment.
In his private life, Rothaug did not take part in illegal activities. He did not belong to the SA, the SS or any other organization.
Since 1939, his function was that of a Gaugruppenwalter in the National Jurists' League.
The significance and position of the National Jurists' League are shown by the provisions (English Transcript pages 6812 to 1815, German Transcript pages 6530 to 6582) which I have had read.
According to that, the National Jurists' League as a professional organization, was not a constituent of the NSDAP an were other organizations, for example, the SA. Thus his functions in the National Jurists' League constituted in no way the position or political leader of the Party.
At the head of the National Jurists' League was the Gauwalter The Gaugruppenwalter were his export assistants (Sachbearbeiter), individuals without their own staff and office.
In pursuance of the dominating Fuehrer principle else in affiliated. organizations, conditions in the National Jurists' League too were not such chat the superior official was subordinate to his subordinates. Also in this organization the expert did the preparatory work, the executive made decisions and carried the responsibility Moreover, during Rothaug's time, the Gauwalier of the National Jurists' League held at the sane time the post of Chief of the Gau Legal Office (Gaurechtsamt) of the Gau head-office, either in his capacity as a Gauamteleiter of as lower ranking Gau main office chief (Gauhauptstellenleiter). To any case, the Gau Legal Office was the central legal office in the Gap for all matters of interest to the Party.
Rothaug was at no time Gaustollenleiter, when Exhibit 554 called him a Gaustellenleiter it is caused by confusing the latter position with that of a Gangruppenwalter's of the National Jurists' League, a position which does not rank among those of political leaders?
Holz's letter was not meant to serve as evidence in the issue so that this erroneous designation in it cannot possibly be held to refute the testimonies of all witnesses specially questioned on the point. It seems absurd to evolve from it a charge of perjury.
But even if Rothaug had been Gaustellenleiter he would not come under the groups of the corps of political leaders to which the I.M.T. Judgment applied Denzler English Transcript pages 7113 and 7114, German Transcript pages 6859 and 6860, Martin Exhibit 49, Schroeder English transcript page 7033, German transcript page 6780, Oeschey English Transcript page 8753, German transcript page 8385."