We cannot believe that the gentlemen in the highest office contrary to their conviction would not have availed themselves of the legal ausiliary means of the nullity plea which was at their disposal, if they would have considered a verdict to be r false judgment.
Hitler's alleged decisions concerning pardon could not absolve them from it. Whether the decree concerning public enemies was to be applied or whether it would have to be considered that this was a more severe case that was not a problem of clemency, but a problem of the Law on which only the courts had to decide. That is why the administration of justice and at the top of it the ministry had been given the possibility to use the objections on the grounds of irrelevancy, which they had to apply, if they considered a false judgment had been given. That this was not being done though the legal procedure was still open to be taken until the execution and even after the appeal for pardon had been rejected, proves that also in the highest places one had ultimately agreed to the verdict.
Engert too, together with Freisler wants to have been of the opinion that the verdict was a wrong one.
It results from the Prosecution Exhibit 152 that wrong reports in the press concerning the verdict on Seiler on account of race pollution had caused, the ministry to secure the verdict as quickly as possible. Engert only reported on this to Rothaug after he returned. Engert also did not do anything in his official sphere against the verdict, and in this he would have found the assistance in the ideas of his superiors who would have covered him, and he would have been obliged to do so, if he would have thought the verdict to be wrong. He did not even report to his immediate superior, Chief Public Prosecutor, Dr. Bems. On the contrary, as revisor of the clemency plea, he explicitly called the verdict unojectionable as to facts and legality and he was against granting clemency (Pems: Rothaug Exhibit 205).
If an Anti-Fascist or a Jew reproaches Rothaug with being an AntiSemite, then he must accept this, but if people do this such as Groben, Engert, Ferber and Dr. Baur, who like him belonged to the NSDAP and also belonged to the SA and have worked for the movement and sponsored it, or the SD-agents Elkar and Wilhelm Hoffmann do this here, then this has its humorous aspects.
Without doubt Groben, after having examined Seiler as a witness, was of the conviction that no race pollution was proven, not out of any philosemitic attitude, but from ignorance of the jurisdiction of tie Reich Supreme Court. Also his later conception suffers from this, But the most important point is that he did not act according to his conviction either, such as the law asks of him. It is important to state this, as he assumed such an extensive judgment in the case, with which he tries to divert attention from himself.
The material prerequisites for the issuing of the order for arrest as issued by him result from Article 112 of the trial order (Rothaug Exhibit 58).
It can be established from the statement of witness Zeuschel concerning the problem of the necessary urgent suspicion of the act that only after she had denied it for some time, did Seiler concede tie risky situation, and that Katzenberger only conceded it when he learned of the incriminating statements Seiler had made.
Instead of advising against lodging a complaint against the arrest which was prohibited and senseless in consideration of the speeding up of the proceedings for the lodging of a complaint against the arrest (Rothaug Exhibit 60, 61, 62) , Groben, according to Article 166 of the Code of criminal procedure, should have questioned the witness Seiler immediately, through whose testimony he later on gained the conviction that the warrant for arrest was illegal (Rothaug Exh. 63).
At any rate, when Groben got the impression that the warrant for arrest had been issued without any grounds, his unavoidable duty would have been, according to Article 123 of the code of criminal procedure, to revoke immediately that warrant for arrest and to do this immediately, i.e. without or against the order of a public prosecutor (Rothaug Exhibit 64).Instead of advising against lodging a complaint against the arrest which was prohibited and senseless in consideration of the speeding up of the proceedings for the lodging of a complaint against the arrest (Rothaug Exhibit 60, 61, 62), Groben, according to Article 166 of the code of criminal procedure, should have questioned the witness Seiler immediately, through whose testimony he later on gained the vonciation that the warrant for arrest was illegal (Rothaug Exhibit 63).At any rate, when Groben rot the impression that the warrant for arrest had been issued without my grounds, his unavoidable duty would have been, according to Article 123 of the code of criminal procedure, to revoke immediately that warrant for arrest and.
to do this immediately, i.e. without or against the order of a public prosecutor (Rothaug Exhibit 64).
Instead of that again, though it was forbidden, he gave the defense counsels a hint, to lodge a complaint against the warrant of arrest in order to shove the responsibility off to the Complaint Court.
Upon the complaint against the issue of the warrant of arrest, Groben, according to Rothaug Exhibit No. 72, had to revoke the warrant of arrest if he deemed the complaint justified, as it was the case. Otherwise his duty was to present it immediately to the Court of Appeal at the latest before three days had passed. According to Article 308 of the code of criminal procedure, only the Court of Appeal was competent for hearing the public prosecutor in the interest of speeding up the procedure. Against his legal duty Groben did not revoke the warrant of arrest demands it. Through this application is the responsibility is transferred to the public prosecutor. Rothaug discussed, this with the public prosecutor end his co-workers.
When the opinion was uttered that this document could be put into the internal files of the public prosecution, he only advised to do so if Groben would consent to it. At the occasion of a discussion with Ankenbrand he advised Groben via Ankerbrand, to declare himself in agreement with the acceptance of this document into the internal files of the public prosecutor.
neither did he present the files to the court of appeal as would have been his legal duty, he rather forwarded them to the public prosecutor with the remark that he intended to revoke the warrant for arrest, in case there was no further motivation for its issuance. Since he had the documentary evidence in his files, there was no sense for this action either, not even as far as their contents were concerned. There was no possibility for revoking the decision about the complaint against the issuance of the warrant of arrest which could be repeated at any time, until more evidence was brought in. This way of Groben to handle the matter, by which he again tried to evade responsibility, resulted in the complaint against the issuance of the warrant of arrest remaining for weeks on the desk of the public prosecutor until it was presented together with the indictment by Markl before the criminal chamber of the court.
Groben justifies his procedure with article 33 of the German code of criminal procedure, which I have submitted in Rothaug exhibit 74. Apart from the fact that in accordance with the rules of procedure for complaints only the court of appeal was entitled to hear the public prosecutor, article 33 refers to decisions of the court, but not to decisions of the investigator. This is an uncontested legal doctrine by getting the files into the hands of the public prosecutor, Groben's purpose was the same as when the one he had intended by provoking the complaint against the warrant of arrest: he wanted to turn over the responsibility to the public prosecutor. He expected an application based on article 126 of the code of criminal procedure (Rothaug exhibit 73) according to which he warrant of arrest is to be revoked before the indictment is lodged, if the public prosecutor. This was permissible since it concerned a document which was without any importance for the subsequent procedures, since it offered only proof for the fact that things had been handled wrongly before. In particular the document could not be used as evidence in the trial. As a matter of fact, nobody thought of drawing any consequences from this document. Nobody thought of it in terms of the destruction of a document (Rothaug exhibit 194).In his discussions with Ankenbrand Rothaug only thought of this procedure, and that was the only possibility, since documents of the public prosecution were concerned, and not those of the investigations so that there was nothing left for Groben but to give his consent.
If there had been any intention of letting this document disappear, nobody would have used the way of negotiation. The matter was much too unimportant for that. It was a friendly attempt to hush up an incorrect official action and only Groben was interested in it at that time. It is not correct that the incident had any bearings or the appeal for clemency and was supposed to have had the political purpose of hiding Groben's philo-semitic attitude. Nobody thought of that at that time. The clemency plea was dealt with after the middle of March 1942. At that time Groben had been a member of the special court for quite a while. If Rothaug had to say anything Groben, he did not have to bother Ankenbrand. The matter took place before the 1 of October 1941 at which date Groben joined the special court. This does not clear up the national socialist past of Groben. In accordance with what I have just said I can refute the charge of perjury raised by the prosecution.
Rothaug's excitement about Groben having let Seiler take on oath had the following reason:
German law does not want to have the evidence mailed down by someone who does not carry any responsibility for the final outcome.
In this case, the oath was administered on the basis of the exception provided by the law, namely that a fact was to be ascertained, the existence of which would be decisive whether a charge was to be made. In view of Frau Sieler's position in relation to the entire case, her testimony which had bearing on one item of the evidence alone, needed the most careful check-up by means of the other circumstantial evidence. This could only be done effectively in the course of the trial, so that there was practically nothing gained by her being put on oath. Groben's assertion on the other hand (Engl trans. p. 3623/24 German trans. p.
3585/86) that he was bound by the Prosecutor's motion is untrue. (Exh. 69). According to it, the decision in this matter rested not with the Prosecutor but with the Examining magistrate. Seiler conceded, which was also admitted by Katzenberger, that she often would sit on Katzenberger's lap, and kiss him on mouth and cheeks when they were alone together, and he would reply to these caresses by returning Seiler's kisses, pressing his head close to her bosom and petting and stroking her thighs through her clothes. The most stupid question that could have been put to this witness, Frau Seiler, in regard to these happenings was to ask her, whether sexual motives played any part in her conduct and whether she had the impression at the time that Katzenberger was dominated by sexual impulses. (Rothaug Exh. 667.)
As was to be expected in view of the circumstances, Seiler replied in the negative to this question. Through this, however, it became almost palpably evident from the transcript that perjury had been committed. It was with reference to this fact that Rothaug remarked, the witness Seiler had been "driven to commit perjury" by the "German craze for impartiality."
In his opinion it could only be decided in the trial, whether she was trustworthy enough to be put on oath. It was on these lines that Rothaug talked to Groben, That any political purpose was far from his mind is borne out by the fact that at the same time he went to some length to get Groben appointed to the Special Court although Groben's superior in service advised against this for technical reasons.
(Rothaug Exh. 52) On the basis of the sworn testimony of the witness Seiler, Groben thought an order for arrest unjustified, while Markl brought a charge of race pollution on the basis of those name testimonies.
The reason for this is obvious: Groben then as now understands sexual intercourse to mean coition. He proceded from the assumption that the Prosecution applied for Seiler to be put on oath in order to ascertain whether physical coition took place. Markl, on the other hand, based his application on the decision of the Reich Supreme Court, that any activity aiming at sexual satisfaction was to be regarded as sexual intercourse.
All he wanted to ascertain was, whether Seiler would confirm the compromising situation even on oath.
THE RESIDENT: Dr. Koessel, we are now on page 72 and we find the end on page 122, May I ask you, have you ascertained what portion of your exhibit you intend to print in writing without reading it? I ask that so we may determine whether to have s night session this evening.
DR. KOESSL: Your Honor, I only wanted to rad out the cases dealing with foreigners: the Lopata case, the Crasser case. We will have the foreign cases, I only want to read out the Lopata case and the Grasser case. As for the other cases, I wasted to leave them out. I had hoped to finish by five o'clock.
THE PRESIDENT: I had hoped to hear another defense argument this afternoon or evening.
DR. KOESSL: No other plea is available in translation, Your Honor.
THE PRESIDENT: Will it be available tomorrow morning?
DR. KOESSL: I think that Dr. Kubuschok has a plea which runs into 17 pages. That will be available tomorrow, and Dr. Brieger has a plea which will, on no account, take more than two hours. I think it will only take one hour and a half. As far as I am informed, the defense counsel will take about two and one-half hours tomorrows.
THE PRESIDENT: Is there any argument that can be presented this evening after Dr. Koessl finishes? I don't think we will finish tomorrow, gentlemen, unless we proceed. How many more arguments are there that have to be made?
DR. KOESSL: Only Dr. Kubuschok and Dr. Brieger.
DR. KUBUSCHOK: Dr. Brieger will be able to read part of his plea today.
THE RESIDENT: Today?
DR. KUBOSCHOK: Yes.
THE PRESIDENT: We will proceed to hear it then. Go ahead, Dr. Brieger may be prepared.
DR. KOESSL:
"The problem of the concept "sexual intercourse," as defined in the law for the Protection of German Blood and Honor (Rothaug Exh. 99) is settled through Rothaug Exhibit 100"-
THE PRESIDENT: There seems to be a lot of discord in the courtroom. Let's have it quiet while the argument is being presented. Go ahead.
DR. KOESSL:
--"where the mere attempt of any Aryan man to enter the apartment of a Jewish woman in order to indulge in sexual intercourse was defined as attempted race-pollution; the same goes for Rothaug Exhibit 95, wherein the following is stated in detail: Sexual intercourse signifies apart from coition also all activities (active or passive) of a nature intended to replace coition in bringing about the satisfaction of the sexual impulses of at least one partner. Neither the wording nor the purpose of the law could lead to the restricting provision that race pollution could only be committed completely if contact provision that race pollution could only be committed completely if contact between both sexual parts was established. It is sufficient that some kind of relation between the two sexes is being extablished, through one partner's reaction to the other partner's action whereby it is not even material whether the former partner is capable of recognizing the nature of the others action. It is also irrelevant legally, whether either of the partners achieves the desired sexual satisfaction. If the culprit should point to the fact that a certain activity served only as a preparation in order to rouse the sexual impulse, which was to have been satisfied by an act of coition, intended to take place immediately afterwards, which, however, was not consummated, it is still a case of wilful consummantion of complete sexual intercourse, only provided the action as such was carried out wilfully by the culprit.
These generally recognized principles also guided the later verdict.
Rothaug's views on the swearing in of Frau Seiler had no bearing on the continuation of the trial against Katzenberger, it was no obstacle and therefore did not constitute a ground for combining the two proceedings later. It is also untrue that Rothaug in July 1941 took steps in order to get the case into his hands. Ho was not acquainted with the case up to the time when ho came into contact with it in the course of duty. In order to be able to judge whether the Special Court was competent because wartime conditions had been taken advantage of in order to commit the crime, he was obliged to study the files. Markl and Schroeder, - the letter of whom alone was authorized to sign (Rothaug Exh. 80) had brought charges for race pollution before the Criminal Division only. Even though the possibility existed that Schroeder had received different directions on the basis of the report which he had to submit superior authority together with the indictment, yet Rothaug had to consult the records in order to decide whether war-time conditions had been taken advantage of in order to commit the crime. The files, however, were then in Ferbers' possession, only he could give Rothaug access to the files. He put them in front of Rothaug with the remark that in his opinion this was a case for a Special Court, as the husband of the woman involved had been drafted for war service. Rothaug looked through the files and arrived at the conclusion that there was also a basis for suspicion of an infringement of article 4 of the Decree against Public Enemies, and informed the Prosecution of this opinion. Thereupon the latter withdrew their charges before the Criminal Chamber. (Rothaug Exh. 82) Ferber's action towards his superior was in accordance with his duty to examine the case as laid down in article 6 of the Code of Criminal Procedure.
(Rothaug Exh. 81). The Prosecution thereupon submitted the Defendants complaint against custody to the Special Court, which decided in the matter in its entirety according to article 20, par. III, sentence 2 of the Ordinance governing Competency (Rothaug Exh. 84).
In view of the prevailing circumstances, this matter was treated in a way customary not only in Nurnberg but the whole of Germany.
In spite of the decision concerning the complaint against custody, Groben could have revoked his warrant for arrest. Groben's statement is misleading that he was then no longer competent to decide about the warrant for arrest, because he had gathered from a communication that the charge had been brought up before the Special Court had decided in favor of a continuation of the custody pending trial. The truth is, that according to article 125 the competency of the examining magistrate ceases, only when he learns about any ruling concerning the custody pending trial, issued by the competent judge dealing with charges made. (Rothaug Exh. 79).
However, the charge was brought before the Special Court only in Feb. - March 1942, at a time, when Groben had been a member of the Special Court for months. He therefore actually had control over the custody until the 1 Oct 1941.
This is just an illustration of how little credit is due to statements of that witness.
How little Rothaug was influenced by unobjective considerations follows from the fact, that in contrast to the Prosecution, he found further investigations to be necessary and at first voiced objections to Frau Seiler's arrest although it was palpably obvious from the transcript that she had committed perjury.
Court No. III, Case No. 3.
According to Article 14 of the Decree governing Competency, (ROTHAUG Exh. 76) it was left to the decision of the Prosecutor, without being subject to re-view by the Court, whether he wished to bring a charge before the Special Court or the Criminal Chamber in the case KATZENBERGER and SEILER. As is evident from the statements made by MARKL, (Engl. transcr.p.3653, German p. 3619) SCHROEDER (Engl, transcr. p. 7049-9/50, German 6796/97) and Dr. BEMS (Exh. 205, ROTHAUG) the Prosecution acted in accordance with the Ministry, which was being kept informed.
The fact that MARKL treated both cases in one file in the Referat of the Special Court, goes to prove that from the very beginning, the Prosecutor intended to bring both cases before the Special Court by filing one common indictment.
It might have been pointed out that, if suspicion of perjury was present against one party in a divorce case, this was also being treated as two separate cases, but this objection against the combined handling of both cases would have been of no avail. But apart from the fact that FERBER did not raise this objection, it would have been senseless. It would have concerned a problem of criminal law arising prior to civil proceedings before a civil court. Article 149 of the Code of civil procedure (ROTHAUG Exh. 86) governs this problem. A parallel case would be a problem of civil law arising prior to criminal proceedings before a criminal court. This case is governed by article 262 of the Cede "f Criminal procedure. (ROTHAUG Exh. 87) In the case under review, however, we are concerned with a problem from an entirely different sphere, namely the doctrine concerning the combined handling of criminal matters; as far as the jurisdiction of Special Courts is concerned, this is governed by Article 15 of the Decree on Competency. (ROTHAUG Exh. 82) According to the general doctrines that were developed in this connection, cases may be combined if this seems expedient for the proceedings. The fact that through the combined proceedings, a Defendant may lose certain evidence does not entitle him to an objection. Combined proceedings are being set up through the Prosecution, when they combine several criminal Court No. III, Case No. 3.matters in one single indictment and file them with the same with the court, as has been done in the case under review.
(ROTHAUG Exh. 88) According to ROTHAUG Exh.
90, the concept "connection" applies to all cases in which combined proceedings seen expedient, owing to the identity of persons involved, evidence, historical events, or other reasons.
According to ROTHAUG Exh, 91, this connection is e.g. established, if one action is causative in relation to another action. This applied in the case of KATZENBERGER and SEILER. It is also being pointed out that the Court is empowered to separate the cases at any time.
According to the testimony of all witnesses involved in the proceedings, not even the Defense Counsel applied for a separation, which goes to prove that at the time it occurred to nobody that the combined proceedings might unfavorably affect the Defendants' rights.
The possibility also existed to separate the proceedings temporarily in order to examine one of the co-Defendants in the witnessbox. (ROTHAUG Exh, 93). This was not applied for either, as testified by FERBER under cross-examination (Engl. trsp. 1730 German trsp. 1750/51).
Neither was there any reason for this. SEILER made the same statements at the trial, which she had made under oath before GROBEN. She would not have made any different statements had she been under oath at the trial. The very problem facing the court was whether Frau SEILER's sworn statement before GROBEN was correct. The problem would have remained the same for the Court, had Frau SEILER confirmed her statement once more by oath at the trial.
If FERBER maintains that one could already have seen it from the preparation of the trial, that ROTHAUG wanted to do so something illegal, one has only to put the question why FERBER did participate in the session at all, just as one has to put the question, why it was exactly him whom ROTHAUG appointed to write the verdict, same as in the cases concerning LOPATA and GRASSER, exactly him, who maintains to Court No. III, Case No. 3.have put up the greatest objections before the trial.
This case, same as every other case, was reported to the press office of the administration of justice according to regulations which, together with the propaganda office of the Gau (Gaupropagandaamt) had to rule, whether the session was to be published in the press. If this was the case, then the office issued tickets. ROTHAUG had nothing whatsoever to do with all that.
He does not know any longer, whether or not that happened then. He did not invite anybody to the trial. The Party learned of the case, as the Public Prosecutor had to report to the Gauleitung with respect to SEILER's membership in the NSDAP. That is the reason why Reich Inspector OECHSEL took an interest in the case and asked ROTHAUG whether he would be allowed to participate in the trial, which ROTHAUG allowed him. When participating he wore civilian clothes. ROTHAUG does not remember that besides OECHSEL any other persons he knew had attended the trial. He can say with all certainty that Gauleiter HOLZ did not attend the trial, as opposed to the statement of SEILER. (ROTHAUG Exh. 44).
Neither did HABERKORN attend the trial. It is quite as untrue that Party officials appeared in great pomp and numbers. ROTHAUG did not notice this. The room in which the trial took place was only moderately filled.
The proceedings were not of any different character than all others, above all, the same thoroughness was applied. The witnesses were thoroughly interrogated concerning each phase of the circumstantial evidence, and also in connection with each statement of a witness.
Of course, the points of view were being discussed which, from the legal systematical side of the case, according to the then legal situation and State doctrine, were the cause for the severity of the case, Rothaug was obliged to do so.
It is untrue that according to the fashion of the Stuermer the proceedings were being handled. Not a single one of the expression as Court No. III, Case No. 3.mentioned by Seiler were used.
Seiler was being sentenced. Especially as a woman she was prone to the unavoidable psychological tension of the trial. Her impressions and her retrospective judgment are highly subjective. It is almost 6 years since it happened. On top of that Seiler was under the hypnosis of the Stuermer issue which she possessed.
At no time did Ferber mention that he had to make any objections, not even after the Strasbourg meeting. He did, however, report of a critical remark Freisler made, but in the sense, that he had defended the truth of the verdict.
Of course, ROTHAUG also avowed the truth of the verdict, as according to his conviction the then legal situation was applicable.
Same as in other cases, he did not bother about the further proceedings once the verdict was pronounced. The way FERBER combined facts in this respect is without any foundation.
FERBER was the author of the written opinion for the verdict. For the oral opinion of the verdict, ROTHAUG had written down some catch words, which were unintelligible for anybody else. Therefore it is not true, that FERBER essentially used the handwritten file notations made by ROTHAUG. Only the assertion is missing that he helped him in the actual process of writing. That the arguments for the verdict are being based on the then state-doctrinary foundations of the race, is evident. But they are strictly limited as to the penal side as requested by the legal situation of the case. At that time nobody would have thought of some such nonsense as that the idea of extermination was to be put into practice on a single Jew in full publicity.
ROTHAUG did not have any conversation, neither with the Gauleitung, nor with the SD, nor with any other Party office, and not even over the telephone. The statement of Dr. BAUR concerning this is an untenable compilation of facts, the most essential part of which seems to be that the former Party Member and man who used to march for 10 years with the SA had the opportunity to confirm to himself that one has ques Court No, III, Case No. 3.tioned his conscientiousness after he had intervened for a Jew in a tumultuous episode "by the means" of objections.
Neither as to the form nor as to the contents has there ever beer such a conversation between ROTHAUG and Dr. BAUR. For many years, ROTHAUG had been showered with penal cases of all kinds. Since July 1941, he knew of the KATZENBERGER case. What could have excited him about it still in March 1942? What should have been the cause that he would have given a lesson with raised voice to Party Member and SA-man Dr. BAUR? Besides, Dr. BAUER made the mistake that he did not adapt his construction to the actual conditions, for Frau SEILER was at that time already 34 years of age, and no longer a German girl.
It seems more important to me that ROTHAUG, though this entailed difficulties, had the time of the trial postponed in order to have KATZENBERGER examined whether or not he was criminally responsible, and that with reference to his age.
Once this had been imputed, the trial would only have been the cause for ROTHAUG to exterminate KATZENBERGER: would he have conceived the idea at all in this case, only on account of the age of the defendant to take up this question of the criminal responsibility, which none of the other persons involved had thought of on the scope of their consideration?
If ROTHAUG had ever been dominated by the idea of extermination then the trial in July 1941 would have taken place without investigations, without medical examination, and in closed session.
As Exhibit 155, the Prosecution submitted an article of the periodical "Der Stuermer" in order to show at what level the trial was conducted. I intended to do the same in the case ENGELBAUER by submitting the impartial report of a provincial newspaper. I was not permitted to introduce this exhibit, since it lacked probative value. That I can see. However, it was an error to have the article from "Der Stuermer" introduced in the cross examination.
With its introduction as Exhibit 155, this periodical, which Court No. III, Case No. 3.is the most biased paper of all Europe, was accorded the honor, probably for the first time, of being used as official evidence for a fact which had its roots beyond its pages.
I assume that the character of this periodical, which formed the basis of the indictment against STREICHER in the I.M.T. is known to all.
By using the case DEEG it was intended to show that ROTHAUG had nothing in common with the publishing company that brought out the "Stuermer". This is the reason why I tried from the beginning to obtain this file. Unfortunately, I was not successful. (Engl. Tr. 6567, German Tr. 7279. ROTHAUG was therefore forced to rely on his memory. He knew that he tried unsuccessfully to apply the Decree against Public Enemies, and he knew also that the punishment finally administered was extraordinarily high compared with the penal provisions contained in the law applied. He also remembered that he had refused to conduct the trial in closed session which had been requested for the protection of the "Stuermer". He had, however, forgotten that the trial was finally conducted in closed sessions after all, so that the collections for the "Red Cross" would not suffer, since the crime had been committed by abusing the name of the Red Cross.
The efforts we put forth to obtain the file Deeg should be sufficient to show how sincerely Rothaug attempted to demonstrate the whole truth, and at the same time how untenable the charge of perjury is. Quite apart from that Rothaug under cross examination, that is in the course of the same examination he immediately corrected his statements, that when he saw his mistake, and, therefore, for legal reasons alone one cannot say he violated the oath.
What the Stuermer-article says about Katzenberger is a distortion of thoughts which were torn from the context and were doctored for propagandietic use.
If, for instance, the Stuermer writes that Rothaug had mentioned the warguilt of the Jews, this formulation is a distortion of an argument which was used in connection with the evidence, as can be seen from the opinion that Rothaug wrote. The two defendants maintained that their relations had been innocent. Thereupon it was demonstrated to them that these relations were continued despite the events of the years 1933, 1935, 1938, and 1939, and notwithstanding the fact that the population had become especially sensitive on that point, since the Jews were sympathizing with the enemy.
This meant that the two defendants would have broken off their relations for reasons of expediency and common sense if this relationship had not been more than a purely social acquaintance.
How the trial was conducted can be seen from the statements one of the most impartial witnesses, namely Markl, made during his cross examination (Engl. Tr.3659-61 and 3674/75, German Tr.3624-26 and 3640-41). Markl confirmed the fact that Rothaug's pre-eminence was not based on political considerations or on his dictatorial manner, but on his intellectual superiority.
In the case Katzenberger, he stated, the facts of the case were conscientiously and impartially established.
Furthermore, Markl testified to the fact that a report had been made to the Ministry about the intended request for capital punishment, and that the Ministry approved the way in which the case was handled.
Based on the defendant's confessions it was thought as conclusively established that Katzenberger, at least until the spring of 1940, had Frau Seiler sitting on his lap on frequent occasions when he was alone with her, that he stroked over her dress and her thighs and carressed her, that he put his head on her breast and kissed her on the mouth and on the cheeks.
Contrary to Frau Seiler's testimony under oath, the court definitely held the opinion that these acts were performed from both sides with the purpose of obtaining sexual gratification also that Frau Seiler had no doubts about this and therefore had committed perjury in refusing to admit this last point before the examining magistrate.
According to decisions of the Reich Supreme Court already mentioned above, these acts alone already satisfy the elements which constitute the crime of race pollution.
On the basis of the clearly established relations of the defendants to each other, in consideration of the admitted instances in which Frau Seiler sat on his lap, the Court had no doubts whatever that it was here a case of a love affair with simultaneous sexual cohabitation, continuing until the spring of 1940.
By means of witnesses it was furthermore established that Katzenberger regularly visited Frau Seiler in her apartment after the black-out against aerial attacks had been put into effect. In view of the tension existing between Germans and Jews especially in Nuernberg which was known to the Court, and in consideration of the fact that the defendants were aware of the fact that their relations had caused offense in the house and in the neighborhood, using the black out on the streets leading to the house, necessitated by the war, was the best possibility to keep up the relationship with sexual cohabitation.
To this was added a further circumstance, having its basis in the condition of war and favoring the criminal acts, namely the fact that Frau Seiler's husband had been inducted into the armed forces.
The black-out in the streets leading to the place of the crime and the fact that the husband was serving in the armed forces were facts generally acknowledged by other decisions as fulfilling the characteristic elements of crimes as defined in Par. 2 and Par. 4 of the Decree Against Public Enemies.
In the application of this decree it was then important to examine whether or not the "sound sentiment of the people", especially emphasized in Par. 4 and also necessary when Par. 2 was applied, would require the application of the heavier penalty provisions.
In order to explain the significance of the term "sound sentiment of the people" I have submitted Rothaug Exhibit 7. This document stated that the decision about this particular point was more in the nature of an evaluation which was subject to revision by the Reich Supreme Court.
In order to judge the effectiveness of this concept; it is important to realize its function in the whole web of legal definitions. Par. 4 of the Decree Against Public Enemies includes and defines all those criminal elements not falling under Par. 2. However, one did not wish to include insignificant criminal acts within the heavy penalties which provided for a minimum sentence of one year of confinement in a penitentiary. It was intended to exclude the insignificant criminality up to a medium level, classified according to the criminal intent, the general circumstances of the crime, in so far at least as they did not show definitely aggravating circumstances. It was different, however, with offenses which were defined by law as major crimes. It was impossible to exclude those on the basis of the "sound sentiment of the people", for offenses characterized as major crimes by their definition in the statutes could not be relieved of their gravity on the basis of common sense, unless there were very special circumstances connected with the case.