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."
Interpolation: The following statement I do not propose to read. They refer to the relationship to Doebig and to the report dated 18 December 1942. Contrary to the statements, of Oeschey, it can be emphasized that this was not a personal settlement of the relationship existing between Rothaug and Doebig, but that Rothaug became active only for that reason because Oeschey gave him the order. Rothaug was ordered to report on other happenings which occurred in the Lawyer's league and concerned Doebig. Oeschey , on the other hand, dealt with those incidents which happened in the sphere of the Party.
As proof thereof, it is contained in the following statement which I do not propose to read. In these statements, I also handle the charge of perjury which was raised under this item.
(Fellow parts ommitted in reading).
It follows that Rothaug is not guilty in connection with count IV of the indictment.
Rothaug has three striving characteristics: comradeship without prejudice to class or rank towards his co-workers and subordinates, a permanently almost insanely agressive attitude to his superiors and a complete devotion, bordering on physical self-negation, to his work. In these respects he never charged wherever he might work. (Schroeder Document, English Transcript pages 7037, 7044 and 7045, German Transcript pages 6784 and 6791, Berns: Rothaug Exhibit 305, Wolpert: Rothaug Exhibit 204, Keller: Rothaug Exhibit 53.)
Therefore, it would be a false conclusion to explain Rothaug's mastery of this unequalled burden of duties at the Special Court at Nuernberg as any kind of political activity. It was merely in keeping with his (Character and conception of duty.
It never occurred to Rothaug that Doebig could possibly not be satisfied with his, Rothaug's, work.
For Doebig was always full of praise for it (Denzler English Transcript page ..... German transcript page 6865 and Oeschey English Transcript page 8754, German Transcript, page 8386). Anything to the contrary, as alleged here, he only learned during this trial.
In prosecution Exhibit 561 Rothaug sees the sole reason for this attempted transfer in Doebig's regarding him as a "political disturber of the peace." Rothaug always applied a more rigorous interpretation to the law with regard to actual penalty (Schroeder English transcript page 7027, German transcript page 6775.)
This was the attitude of many men prior to 1933, men who have never become suspect of Nazi Sympathies. (Rothaug Exhibit 1).
And this attitude finds its justification in Rothaug Exhibit 5.
As I explained previously the extent of the individual penalty was exclusively in the hands of the Courts. Thus, the ordinance of 1 September 1939 could not provide the legal basis for a reprimand for excessively clement or harsh judgments.
Rothaug's transfer was caused neither by his conducting of proceedings nor by the judgments of the Special Court. Witness Miethsam is not very convincing in his part as fighter against Nazi personnel policy. After all he is a man who entered the Party as early as 1933 and who voluntarily resigned his position as a judge in order to join the personnel office of the radical Minis of of Justice, Frank, where he arrived just in time for a racial and political cleaning - up operation.
In 1938, at the time when Doebig claims to have started his operation, the Special Court had hardlv pronounced any death sentences among its annual business of approximately 100 cases. The extent of penalties was hardly different from that of other Special Courts.
Miethsan who was to carry out this important but also illegal measure had never seen Rothaug, had never witnessed any of the trials and had never read a judgment from his field of activity.
The legal way of fighting against assumedly excessive sentences by legal remedies had not even been tried by Doebig.
He did however ask for Rothaug's release from military service, when the letter had been called up, claiming that Rothaug was indispensable as Presiding Judge of the Special Court. When in 1941/42 the administration of Bayreuth requested the setting up of Special Court in Weiden and Regensburg and when a telephone call to Berlin would have sufficed to reduce Rothaug's scope of activity to less than half, he refused, saying that he had no use for three different administrations of justice in his district. Rothaug a jurisdiction pleased him. Put from the day when, in 1938, the attempt was made to give Rothaug the post of vicepresident, Doebig considered him a dangerous competitor, although Rothaug immediately declined the Gauleiter's offer.
(Denzler English transcript 7118/19, German transcript 8864 and 6865) Rothaug had no idea of what was going on behind she scenes. He only sensed danger. The clumsy affability in which in 1941 his transfer to the East was served to him, only confined his conviction that he was to become the victim of his superior's insidious game of double crossing. Led as to say by Doebig's continued affability he tried to overcome his inner feelings. During the middle of 1942, he energetically opposed the Gau administration's plan to put him in Doebig's place.
As far as the report of 18 Dec. 1942 (Pros. Exh.561) is concerned, Rothaug has not forgotten the incident, on the contrary, he remembers it very well. A year and a half had gone by since the transfer attempt, without any reaction whatsoever on Rothaug's part.
In December 1942, Oeschey as Gauwalter of the National Jurists League commissioned him as Gaugruppenwalter for Judges and Prosecutors to make a report an Doebig in order to make possible an examination of Doebig's acceptibility in his office. Rothaug duly reverted because he had been commissioned to do so.
It is incorrect that there was a provision according to which in such matters the Gauwalter would have had to obtain the approval of the subordinate Gaugruppenwalter; moreover, according to the Fuehrer principle, he had a free hand.
The report had to be made out without delay. Events and conditions mentioned in it wore well-known facts to the Gauwalter, who at the time had been at the head of official legal institutions of the Party for almost three years. There was no reason to make a secret of these incidents in the past. Rothaug was merely concerned with computing these events in the form of a report in accordance with instructions, as far as he knew of them by personal experience or by reports received at the National Jurists' League.
It is not true that in this connection Oeschey told him to stick to the truth, for he knew even better than Rothaug that Holz desired Doebig's transfer, not, however, his release. Likewise he knew that most of the report was based on outside information some of which had come in years ago and had not been checked; he also knew that it was up to him to accept the opinions of the report.
The formal procedure was that Doebig by joining the party and the National Jurists' League submitted to the statutory discipline of these organizations.
It was the purpose of this report to give Doebig the chance to voice his opinion on the matter. This affair was not an intrigue either in form or contents as opposed to the action against Rothaug, especially as Doebig knew Gauleiter Holz well. Furthermore, Doebig exonerated himself to the extent that Holz did not doubt his political reliability but deemed him incapable of handling the situation (Prosecution Exhibit 554) and therefore advocated that he be assigned to a different post.
In answer to the Prosecution's charge of perjury in connection with Rothaug's statements on the report of 18 Dec. 1942, I wish to make the following statement:
The report of 18 October 1942 does not corroborate Rothaug's report. In connection with the hurriedly elicited explanation by one of Oeschey's stenographers, according to which one of Rothaug's handwritten reports had been copied by typewriter, one can hardly ignore the fact that this witness is dealing with an incident which happened five years ago in which she was merely a tool, which to her must have been just one of probably thousands of similar incidents and which she had no special call to remember.
It is correct that she typed a handwritten draft by Rothaug. But that does not exclude the possibility that she also copied an insertion by Oeschey which was also handwritten. A superficial examination of the report from 18 Dec. 1942 shows three sections.
In the statement, the incidents are at first listed together without numbers, then suddenly, a part follows in which the individual incidents are separated from one anther by Numbers 1, 2, 3, 4. And then the incidents follow once more without numerical separation.
The section with numbers was not contained in Rothaug's report. He refers to incidents which without exception concern judges. Their peculiar quality consists of the fact that they were not received in the NS Jurists' League but in the Party, and there, they were dealt with by the Gauleitung (Administration), particularly by Oeschoy, directly with Doebig, 1, 2, or 3 years before the report of 18 December 1942. An order to make his statement credible, in spite of the facts revealed in the report of 18 December 1942, namely, his statement that Rothaug had reported these incidents to the Gauleitung, he had short summaries of the facts inserted into the card files of the NS Jurists' League. These summaries were never submitted to the NS Jurists' League. (Rothaug Exhibit 224).
Information regarding such incidents would have even violated official secrecy, (Number 1 of the supplementary Regulation, in Rothaug Exhibit 206) because the NS Jusrists' League did not come under the provisions of this regulation.
Also, in the Doebig Case, how could Rothaug have come across such "short summaries" which had supposedly been put into over 1000 card files by Koenig, Dries, Ankehbrand, and Strauss, without his having known about their connection with the Doebig Case? In this connection, even the weeks which we today, after the fact, so generously claim were authorized him then, for tracing the material, would not have been enough for completing the case.
The incidents listed without numbers were evidently sketched from memory without dates, whereas the sections introduced by numbers not only assign dates to the individual incidents, but also to the internal expert treatment of the cases, even cites the file references for the judicial documents, which, to be sure, the Gauleitung, but not the NS Jurists' League, was able to obtain.
The case of Koenig proves this. It takes place between Koenig, the Kreisleiter of Uffenheim. Doebig and the Gauleitung. Its description should only be based on the existing exact documents and not on a brief report on events. I only point to the following phrase: "After thorough examination of the documents, the Gauleitung has presented its position in this matter to the Presiding Judge of the District Courts of Appeals. "Only one who had read the verdict could make who subsequent evaluation of the verdict."
The case of Hauth rests on the same basis. The quotation, deliverately taken out of contact with the verdict as well as the summarizing evaluation of the verdict only could have been made by some one who had access to the documents In regard to the cases Dries and Ankenbrand nobody could know the inner connections without knowledge of the documents which contain information regarding the libel suit which in turn is connected with the earlier case of Hauth which was based upon an eviction suit, disregarding that the treatment of the details of various happenings of and inner connections during the trial only was possible on the basis of a thorough study of the documents.
Ankenbrand's expulsion from the Party mentioned here furthermore indicates an extensive participation in the Party.
The same is true of the exact dates, document numbers and the decisive parts of the verdict cited in the Henning case. Also the manner of their evaluation could only be made on the basis of concrete documents which according to Oeschey's statements were not available to Rothaug.
What sense would it have made if at the end of 1942 Rothaug would have reported to Oeschey of all the people on matters which on the basis of extensive studies were extremely well known from the original documents since 1940 and 1941. One may believe Rothaug, when he says that Oeschey expressly stated at that time that lie himself had worked on these matters at the Gauleitung and that he was to report the events which had taken place in the Rational Socialist Jurists' League.
The witness Daenzl (Oeschey-Exh.10) was to bring Rothaug in connection with a letter of 13 December 1942 which did not contain attacks against the Juvenal Penal Court, which also were dealt with by the Gauleitung (Prosecution exhibit 561). Despite the efforts, Daenzl has therefore not verified Rothaug's connection with these events. Rothaug had nothing to do with them as Oeschey knows well.
The matters on which Rothaug worked were dealt with from the Party point of view.
The case of Schubart was conducted by the German Labor Front by way of the Gauleitung. (Oeschey-Exh.No.10).
Following Oeschey's orders, Rothaug took position in professional respects to the verdict of the 3. CIVIL SENATE. He had nothing to do with the further treatment of the matter. In a circular letter of the Ministry the verdict was declared not to be satisfactory but at the same time there was no reason to interfere. Also here it was assumed that Doebig who also had disapproved of the verdict took a dual position. The publication of the position by the Gaulietung by circular letter was criticized.
Regarding Heinrich's relations to the proprietor of the department store "Weisser Turn" there was a complaint to the National Socialist Jurists' League, which even had not been examined.
In connection with the promotion of Standartenfuehrer of the SA Ermert, it was criticized that Emmert, who depended in professional matters upon the benevolance of Doebig had under the influence of Doebig ceased to co-operate with those offices, which formerly had been working for his promotion.
In the case of Leis, there was a report. Rothaug, took the position that the professional decision of a judge was expressly excluded from the complaint and directed it against expressing an attitude contradictory to the Party while in an official capacity.
The sign at the door of the visitors gallery of the court room according to which Jews were not permitted, was caused by an event, which occurred in the Schmitt Fahsel case. Without the knowledge of the will of Rothaug, Streicher had caused a man to be asked to leave the room and incited a terrible scandal because he had thought this man to be a Jew. The Court was powerless in the face of such conditions.
The Reich Supreme Court (Reichsgericht) had considered this action to be lawful. With the exception of Nuernberg, the Special Court had not used it. (Rothaug-Exh.33).
The matter concerning the Streicher-pictures was looked upon from the point of view of the principle to kick the weak According to Rothaug's attitude everyone, who accepted a high position on the bus is of wanting to serve the state with unconditional loyalty was under the inner obligation to serve the state loyalty.
All others did not interest him. Never was any action taken against a judge or a prosecutor upon his initiative and this also holds true of the then already old events which he had been reported in connection with the report of 18 December 1942. Also the report itself, which was directed against Doebig inner attitude, was of no consequence for anybody else and was not opposed to be of consequence either. There was the understanding between Oeschey and Rothaug on the one side and Doebig on the other side, that Rothaug and Oeschey were to report such cases to Doebig and should leave it up to him to dead. with these mutters, instead of reporting them to the higher authorities. What caused indignation was that Doebig did not act.
Rothaug only informed Doebig verbally and never made any demands, not to speak of an illegal demand.
Rothaug did not punish other people for their contradictory attitude towards the party. When he was a defense counsel appointed by the State in political penal matters, he also defended well known political opponents. When he learned from the investigations that action was being taken against Dr. Mayer (Rothaug -Exh. 231 Prot. engl, page 3565) he protected him and suggested to him to let him take over his defense in case concrete actions should be taken, against him. Upon the plea for help from Frau Kern Rothaug caused the release of attorney Kern who has appeared here as witness for the prosecution and who had been arrested by the Gestapo, who was not a member of the NSDAP and was known as being in opposition to the Party. Frau Kern as well as Kern's whole family was unknown to him? (Rothaug-Exh. 202).
Mayer, now Justiz and Kassenrat at the District Court of Appeals in Nuernberg, had not been promoted in a defaming manner for almost 10 years inspite of excellent professional achievement. This had its reason in political ill will and because he was a member of a Free Masons' Lodge. The officers concerned did not take interest in these conditions. Although Rothaug knew that this politically embittered nan was more belligerent in his attitude than before he immediately straightened out the matter. (Rothaug-Exh. 47).
The appendix to prosecution Exhibit 561 refers only to an event concerning Emmert mentioned in the report of 18 December 1942 and who gained his knowledge of this report of 18 December 1942 from Thierack. On the 1 June 1943, Oeschey who was Emmert's subordinate withdrew his accusations against Emmert and referred to Rothaug as he stated in his assurance upon his word of honour, which Emmert used for his justification with the Minister. Oeschey informed Rothaug afterwards, who--knowing the Oeschey's dilemma--approved of his action. Rothaug did not know that Oeschey had given his word of honor. It was correct in the statement of Oeschey that he had no personal knowledge of the Emmert affair.
The conduct of procedure of Rothaug.
I shall not dwell upon Rothaug's excitations which came from his temper, the overword, nervous excitability and also the whole development of this man's life. They were merely words and not more than just that.
Judge Keller (Rothaug Exh. 33, an experienced expert said: "I have participated in several, sessions up the Special Court in Nuernberg in whech Rothaug presided.