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.
This case is concerned with just such a crime, so that it was irrelevant whether or not the crime fell under the more severe penal provisions, and it was evident that the crime was far from being a border-line case.
A further question which had to be answered was one which was equally significant in the application of Art. 2 or 4 of the Decree Against Public Enemies: Namely; the question of whether or not this case was an especially serious one.
As already demonstrated in another connection, the concept of the especially serious case is nor, at all to be taken as a circumstance on the basis of which the extent of the penalty provided by law is to be determined, but is a characteristic element of the crime itself, which had to be based on logical and legal reasons, could be re-examined by the Reich Supreme Court, and for which, if applicable, capital punishment was mandatory. In determining whether or not an especially serious case was present it was not decisive whether or not the crime in questions was committed under especially aggravating circumstances, it was sufficient that a crime had been committed which was defined as a serious crime in the evaluation of the legal system.
In this connection I have submitted Exhibit 10, and also Exhibit 7 to show the evaluation of the serious crime according to the classification provided by law, both of which show that the people and the concept of race upon which it is built, are judged to be the highest legal interests according to law. This determination was binding for the administration of justice.
It was not until the problem of race was transferred from the party-political sphere into the hallowed area of the law that this question was burdened with the serious and heavy load from which stemmed those consequences.
Thereupon the highest courts fell in with this legal evaluation of the race problem. Already the preamble to the Law Protecting German Blood and German Honor which is directed only against the Jewish or the Gentile partner, demonstrates the significance of the law itself. Rothaug Exhibit 99. The crime of racial pollution was not only put into a foremost position from a purely legal point of view, the Reich Supreme Court also developed a series of principles for the evaluation of the gravity of such offenses which transformed all those circumstances, that might be believed to be human and understandable by another world, into circumstances which increased the severity of the penalty, so that, if they were present, it could be assumed that not only a major crime of race pollution, but an especially serious case of this type of offense had been committed. In Rothaug Exhibit 94 the consideration of the greater or lesser degree of acquiescence was rejected as extenuating circumstance. The relationship lasting for a longer period of time, which could lead to the conclusion that love was involved, is being designated as a reason for a more severe penalty, and the same is true of such sexual relations which could justify the assumption if a so-called prostitution atmosphere. The same is assumed in the case of one partner being financially dependent upon the other. Rothaug Exhibit 96 emphasizes that the love affair continued over and above the time in which the Nuernberg laws became effective was a reason for inflicting a more severe penalty. The Reich Supreme Court rejects as extenuating circumstance the fact that the defendant was aged and ill and therefore dependant upon his partner, because this way of looking at the facts of the case would primarily consider the external and internal inferiorities of the defendant and would judge the perpetrator principally as an individual. The purpose of the law is to secure and keep the purity of the racial community of the German people.
In Exhibit 101, the Reich Supreme Court rejects a verdict because the criminal court had only taken into consideration that the defendant, as a married man, had kept up a love affair, and criticizes that in favor of the defendant the following points were taken into consideration:
the fact that he had no previous convictions; his good character; that it was a question of "bonds of an internal nature", a "slipping because of lack of inner strength", in the relations between the defendant and the Jewish woman; that the relations lead already existed before the Nurnberg laws were passed; that after the passage of these laws there had only been three cases of misdemeanor; that the defendant had not intentionally tried to bring about those meetings; and also that the defendant had to be afraid of a tragic conclusion if he would break off the relations. All these points, which were meant to show that no special lack of responsibility towards the racial community was present, were rejected by the Reich Supreme Court, because the criminal judge had let himself be influenced by considerations which were not in accord with the law while determining the penalty, in the course of which he was not permitted to act independently. In this case the perpetrator was primarily viewed as an individual. However, here it was a question of protecting the racial purity of the German people and its honor. The decisive factor, therefore, was the degree of irresponsibleness shown towards the racial community. It was not an extenuating circumstance that the defendant had committed only 3 individual offenses after the issuing of the Nuernberg laws. In determining the gravity of the crime with a view to the severity of the punishment, the mere fact that the defendant had committed more than an individual offense should have been taken into consideration.
I have already made mention of the fact that the German judge was not permitted to act on his discretion even in cases in which the law provided him with a range of possible penalties. It is just this decision of the Reich Supreme Court, which was based on an appeal, and not on an annulment of the verdict by the Ministry of Justice, shows conclusively that the judge, even within the range of penalties provided by the law, was permitted to consider only such facts which could be justified on the basis of the total system of law.
I do not wish to revive with my quotations and expositions a whole world of thought centering around one of the most critical problems. I am only touching upon these things in order to demonstrate: Also in the case of Katzenberger we have the situation that not only the facts of the case as they were established were the logical conclusion of the evidence, but that also the application of the law was, according to the statutory provisions, the logically compelling result of the established facts. The sentence is exactly in line with the decisions of the Reich Supreme Court as far as the amount of punishment is concerned; that is true of the judgment of the act as a crime in general, as well as of the concrete evaluation of the facts with a view to determining the penalty.
These legal yardsticks for evaluation could only be sidestepped if there were more compelling reasons for doing so. The more compelling reasons, which would allow one to disregard the previous decisions of the Reich Supreme Court, could again only be such reasons as were culled from the legal system then in force. However, up to now no one has advanced these more compelling reasons, not even those persons who subsequently term this judgment a misapplication of justice.
Even if it had been a Aryan who had been judged in the case Katzenberger, the result would have been the same.
Rothaug has not maintained that he was a philosemite, or that he had fought against antisemitism. Neither was he on the same level with the "Stuermer". In any case, he rejected illegal acts in this field. The contrary cannot be concluded from the Exposee of 18 December 1942, for which is is only partly responsible, as I have demonstrated.
Nor can this be proved from the Oppenheim case which was brought up in cross examination (Engl. Tr. 7528, German Tr. 7274).
Oppenheim was a Aryan within the meaning of the race laws. During the war he had sold his racing stables to the Waffen-SS and was therefore permitted to purchase the Ast estate near Landshut.
During this time he had a civil lawsuit with his manager, in the course of which the latter went to the police to denounce von Oppenheim and his wife charging that they had attempted to undermine the defensive strength of the German people. This led to Oppenheim's arrest by the District Court of Landshut.
When the denunciation was made, Rothaug went to Landshut in order to take charge of the investigation, for he had considerable doubts as to the reliability of the prosecution witnesses; he had handled similar cases in the past in the same way.
From the files could furthermore be seen that von Oppenheim had sold the estate to the Reichskolonialbund (Reich Colonial League), the head of which was Reich Governor Ritter v. Epp, and that he had contested the validity of the contract of sale on the grounds of deceit with malicious intent. In order to obtain a general survey of the situation, Rothaug interrogated Herr v. Oppenheim in the prison of Landshut. Von Oppenheim denied having made any defeatist statements and made especial reference to his great services to the Reich in the field of procuring foreign exchange for purposes of war. He was the owner of a bank in Cologne. Since Rothau was instinctively convinced that these civil law disagreements would strongly influence the criminal case, he also inquired if there was not a possibility to get these things in order. Oppenheim maintained that he had been deceived by the brokers. It is not true that Rothaug greeted Herr von Oppenheim with abusive names. The prison warden heard the words that Rothaug used in when he received von Oppenheim. He denies categorically that Rothaug called von Oppenheim a "Jewish boy." (Rothaug Exhibit 223) The official left the room to be sure, after having led von Oppenheim in, but he has affirmed that von Oppenheim never complained that Rothaug had mistreated or insulted him. After that Rothaug also interrogated Frau von Oppenheim and the witnesses on the estate, Rothaug attached special importance to clarifying, as a background for the affair, the civil dispute which was apparently the cause of the denunciation.
For want of other possibilities, the trustworthiness of the incriminating witnesses was to be investigated. If they were lying with respect to this, then their word could not be trusted in connection with the criminal accusations that they had made. It is not true that Rothaug threatened and insulted Frau von Oppenheim. During the interrogation he told her that while it was true that the Amtsgericht (Local Court) had not issued a warrant for her arrest, the proceedings had not been dropped. Moreover, he demanded that she refrain from carrying on any intrigues, because he would otherwise have to have her arrested. He did not intend to do this right away, he told her. This is confirmed by the woman who was clerk of records at the time. (Rothaug Exhibit 222). According to this, Rothaug gave the files to the police authorities concerned, so that the statements of the incriminating witnesses concerning the civil dispute could be investigated. Thus, the entire investigation proceedings were aimed at obtaining material for von Oppenheim's exoneration. The affidavit of Justizbeamte (Official in the administration of justice) Gehring from Arnstoff (Exhibit 45) also shows how little he hated the Jews as Jews. 11 Jews who in April 1945 escaped from a so-called Death March with a Concentration Camp column, were later arrested and, confined at first in the Arnstorf jail, were to be taken away to be shot. Since Gehring could not oppose the SS officers, Rothaug intervened and prevented the executions by conferring with the authorities in charge of the Commando and pointing out that the surrender of the men for the purpose mentioned would be complicity in murder. Similarly, he prevented an illegality in Bayreuth, where, against the will of the Gauleiter and the Reich Defense Commissar, he was successful in arranging matters so that no action was taken against the Landrat (Land Councillor) of Bamberg before a military court (Standgericht), and, through the intervention of other authorities, the Landrat could be extricated from his extremely critical situation.
(Rothaug Exhibit 201).
THE PRESIDENT: Dr. Koessl, pardon the interruption. May I ask if Dr. Brieger has been notified to be prepared this afternoon to continue. Were you able to notify him?
DR. KUBUSCHOK: Nineteen pages are already in translation.
THE PRESIDENT: You are ready to proceed?
DR. KUBUSCHOK: Yes, Yes.
THE PRESIDENT: Go ahead, Dr. Koessl.
DR. KOESSL: May I ask Your Honors how much more time you will allow me today?
THE PRESIDENT: This was a matter of agreement between the Counsel for the Defense. We are taking no part in it. Take all the rest of the time that there is, if you can satisfy the rest of your associates. That wouldn't satisfy the Court, however. Go ahead.
DR. KOESSL: Now I am going to pass on to the charges made in connection with the cases of foreigners. It is Roman X -- and deals with Engelbauer, Horn, Schaller, Tiefel, Ketterer, Platzer, Zeiler cases.
May I ask Your Honors to read through my statements on these cases thoroughly and I may I have those statements which I do not read incorporated into the record.
THE PRESIDENT: The Tribunal has already ruled on that matter.
DR. KOESSL: It is nine or ten pages long.
5) The Englbauer Case was based on the charge of robbery and on Paragraph 2 of the Ordinance against Public Enemies. According to the testimony of Ferber, this was supposed to have involved circumstantial evidence on a very broad basis. He said that Rothaug had not made use of existent possible evidence of evasion with regard to blackout violation. As is shown in the judgment, Englbauer's guilt had been convincingly proved.
The fact that the blackout had been exploited was convincingly presented in the judgment in connection with the ambushing, the pursuit and the escape.
FERBER, together with the local police, personally ascertained the local facts relevant to blackout questions. And in the indictment and at the trial, he himself asked for a sentence on the basis of Paragraph 2 of the Ordinance against Public Enemies, and in the petition for pardon which he himself, together with Wilhelm HOFFMANN who had been interrogated as a witness, had prepared, he expressed himself as being opposed to a pardon. The interpretation of this as an especially severe case was in keeping with the principles of the Reich Supreme Court (Reichsgericht) and also with the viewpoint in the Circular Order of 12 September 1939. (Transcript, Page 7331 of the English version.)
6) A case of extensive mail theft on the part of a Frau BELLMER is based on Paragraph 4 of the Ordinance against Public Enemies. The criminal situation in the field of mail theft is shown in Exhibit 163. ROTHAUG Exhibit 164 contains the judgment and the opinion, and in it, along with the gravity of the deed, the inferior character of the defendant herself is emphasized.
The sentence followed the confession of the defendant. Her criminal responsibility was beyond all doubt. It was shown beyond question that she had taken advantage of war time conditions.
The element of wrong in these thefts of soldiers' mail lay in the fact that the vital connection between the homeland and the front had been interrupted. By extensive thefts, the defendant endangered public trust in the Reichspost.
The exhibits 165, 167 and 168 show that the greater severity in judgment this case came from the chief office of the Public Prosecution. The expert there was Dr. Josef GRUEB, who appeared here as a witness. Prosecution Exhibit 179, English Transcript 3502 ff. Public Prosecutor Dr. DORFMUELLER also expressed himself against clemency.
(ROTHAUG Exhibit No. 170).
7) The mail robbery in the case of HORN mentioned by the witnesses MARKL and GROSS was evaluated according to article 4 of the decree concerning public enemies. Prosecution exhibits 154 and 221. This was a matter of continual army mail robberies on a large scale carried out in a cunning manner, in which the aggravating element lay in the fact, particularly serious under such conditions, that HORN was an official. Also his criminal responsibility was beyond doubt, so that the assumption of a particularly serious case according to the jurisdiction of the Reich Supreme Court was absolutely necessary.
8) The case of SEILER mentioned by the witness Kurt HOFFMANN, Prosecution exhibit 234, concerned a 20-year-old blackout criminal who had had a considerable number of previous convictions and who had committed numerous burglaries. Kurt HOFFMANN, who himself proposed the death sentence, now describes the sentence as too harsh, as the defendant had not profited to any great extent from the burglaries and whom, on account of his youth, it would have been possible to reform. But, he said, ROTHAUG had made it clear that people who "stabbed the fighting servicemen in the back" must be exterminated.
The facts from the original documents (English transcript p. 7311) show what the same Kurt HOFFMANN and the witness Wilhelm HOFFMANN stated in the clemency report. Here, setting out the large number of blackout crimes and the considerable total of the damage and the impossibility of reforming SEILER, is stated: "It would moreover not be bearable to allow the slightest leniency to a criminal who stabs in the back a nation engaged in a struggle for existence". End quotes.
The witness ENGERT reported to the ministry: "There is no point of view in favour of the condemned which would have any weight in the question of clemency". End quotes.
That was the written opinion, in documentary form, from these gentlemen in such cases before the collapse (Katastrophe).
9) In the case KLEINLEIN and SCHALLER evaluated according to article 2 of the decree against public enemies, a band of young criminals carried out 46 burglaries under cover of the blackout in summerhouses and cellars where the population used to hide their most valuable property as a precaution against airraid danger, and it caused the greatest unrest among the inhabitants.
KLEINLEIN, who was of a responsible age, took part in 8 burglaries including one in a cellar. SCHALLER offered the thieves refuge and a hiding place. She also gave them tips regarding the burglary and thus ensured the lion's share of the loot for herself. The public prosecutor assumed particularly serious offenses from Article 2 of the Decree concerning public enemies in the case of KLEINLEIN, but not in the case of SCHALLER. SCHALLER's offense he qualified as that of receiving stolen goods.
SCHALLER'S offense was just as serious as KLEINLEIN's. Moreover, it was not a case of receiving stolen goods, but of complicity, for not only did she accept the loot, but encouraged the crime and did a great deal to make its commission possible. Prosecution Exhibit No. 206 refers to this.
Dr. BAMS gave an opinion on this in ROTHAUG Exhibit No. 205. He describes this document as unorthodox but states that no legal objection can be brought against it.
The judge was not actually forbidden to express his own legal conception of a certain matter. Here one must consider the historical position of the public prosecution in German vis-avis the court. Their duty, like that of the judges, is to observe strict objectivity. This was the reason why in the case of a wrong verdict or an error case was always taken to allow the possibility of rectifying this by legally admissible methods. At ROTHAUG's direction the public prosecution had the opportunity of correcting the error by means of a supplementary indictment or of replacing the erroneous indictment by a corrected one. This had the advantage for the defendant and his defense counsel that even before the main trial they were informed of the possibility that a different legal evaluation of the act was possible. The fact that the public prosecutor did not regard this had the result that defendant and defense counsel learned only from the information given in the main trial that the legal evaluation of the act had changed.