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.
The procedure which ROTHAUG followed, which was by no means forbidden by law, followed the generally prevailing tendency to come to a just conclusion in a simple and expedient fashion without violating the law. (ROTHAUG Exhibits 32 and 33).
The expression of a legal opinion by a judge does not constitute a ground for rejection, as the contents of a legal opinion do not represent any bias and do not per se allow any conclusions to be drawn. Cf. the commentary extract which was read out. (English transcript p. 7213; German 6954).
KLEINLEIN was aware of the nature, extent and operation of the robberies carried out by the band. He had already previously received considerable punishment on account of underhand dealings at the expense of his comrades in the army. The Special Court has gone into the matter of the certainly degenerate psychic constitution of KLEINLEIN, which did not affect his complete responsibility according to criminal law. The idea of the protection of society, which underlies criminal law, did not allow this to be considered.
10) Article I of the amendment law in the Penal Code of 4 Sept 1941 is said to have served as a basis especially for the extermination. But even with the application of this regulation, punishment was in any case dependent upon the presentation of a legal fact accompanied by criminal intent. The basic principles of the Reich Supreme Court do not even hint anywhere at thoughts of extermination.
a) In the case of Schieber, the practice of an extermination policy is charged because, on account of inconclusive circumstantial evidence, the death penalty had been given as per par. 1 of the law of 4 September 1941. In rebuttal I have presented the verdict, exhibit 220, which is based on completely conclusive circumstantial evidence and contains no thought which refers in any way, however remote, to an extermination tendency.
b) In the case of Eisenhofer, who is supposed to have been sentenced as a sexual offender according to par. 1 of the law of 4 September 1941, the files are missing, so that a reconstruction of the decisive circumstances from the insufficient memory of the witnesses is just as little possible as is a clarification of the personality of the culprit, so that it is not possible to make a complete judgment.
c) The Sollfrank verdict is based on par. 1 of the Aenderungsgesetz and par. 4 of the Public Enemy decree. Sollfrank, who was a habitual criminal and work evader, (stole) clothing from a farm worth RM 180.-- taking advantage of the fact that the owner had been drafted into the Army.
The verdict (Rothaug Exh. 174) is based, despite its severity, purely on principles of criminal law.
The attitude of the Chief Public Prosecutor to the question of clemency, as presented by the witness Kurt Hofmann, recommends the death penalty. (Rothaug Exh. 175)
d) The case of Tiefel was also handled according to par. 1 of the Aenderungsgesetz. According to expert testimony of a criminologist, exhibit 177, he was a dangerous habitual criminal.
According to the verdict, exh. 170, Tiefel, unimpressed by punishment, continuously stole and cheated from 1929 until 1938. In 1941, a few days after completion of a 2 1/2 year jail sentence, he began a new row of especially despicable deeds. Taking into consideration his personality and his criminal life, he was a man who had totally fallen into crime.
The defense counsel used every legal possibility to reopen the trial before the proper courts. (Rothaug exh. 181, 184.)
e) In the case of Schlegerer par. 1 of the Amendment Law (Aenderungsgesetz) and par. 2 of the Public Enemy Decree, among other things, were designated as too severe by the witness Heinz Hofmann, because Schegerer had been qualified for par. 51 II by the doctors.
According to Rothaug exh. 159, Hoffmann informed the Attorney General that he was going to demand the death penalty for Schegerer in spite of his qualification for par. 51 II of the Penal Code. The report was signed by the Wilhelm Hoffmann, who appeared as a witness.
The court could not allow the use of par. 51 II for the purpose of lessening the punishment, on account of the criminal record and personality of the defendant.
Heinz Hoffmann had to admit in cross-examination that the verdict conformed with the decisions of the Reich Supreme Court. (English record 8821-24).
f) In the case of Ketterer the witness Markl feels that the death penalty was too severe because of the slightness of the last crimes. Ketterer too was an habitual and oft punished criminal, who always abused his newly won freedom for new crimes. His last crimes included, among others, the counterfeiting of private documents for the purpose of material gain, which is punishable as a completed crime under German law. The witness Dr. Josef Grueb had directed Markl, as is shown by file note, to demand the death penalty, and only allowed a free hand when he found out that Rothaug did not intend to hand out the death penalty.
What attitude then asserted itself, so that the death penalty was nevertheless given, can no longer be determined. The result of this decision conforms with the decision of the Reich Supreme Court in Rothaug Exh. 20.
The case of Platzer, mentioned by the witness Wilhelm Hofmann (Prosecution Exh. 476) is about a War Economy crime according to par. 1 of the War Economy Decree of 4 Sept 1939. Platzer had managed to get an allotment of over 100.000 meters of textiles, by deceit and intrigue, and had stored these textiles to sell them at a profit at the proper time. The Platzer case was the most serious War Economy crime to happen in the area of the Nuernberg District Court of Appeal. Wilhelm Hofmann, as representative of the Chief Public Prosecutor, himself demanded the death penalty through the Public Prosecutor, while Rothaug was undecided on this point until the time of the main trial on account of the files, which did not clearly disclose the motivation.
(Prosecution exh. 476, English record pg. 3941). After the matter was clarified there could be no doubt about the death penalty.
11. Foreigners who incurred sentences, with the exception of Poles, were subject exclusively to German law.
As long as Rothaug was in judicial service, all foreigners who were witnesses were treated according to the same rules as Germans. Their statements were judged by the same principles. They were sworn in like Germans. It is not true that the statements were classified in advance, in the sense that, for instance, the testimony of a German had as much weight as that of four Poles. Such nonsense cannot be derived from any verdict. It is a psychological reality, which had to be taken into account, that a Pole had a different position before a German court than a German had.
But it was a matter of objective investigation whether this would affect a concrete case. In this connection, Rothaug has presented the case of a Pole who had been accused of killing a large number of sheep, with intent to sabotage. Despite very serious accusations by German witnesses, his story, which was supported by expert testimony, was given preference. (Rothaug exh. 207, English record 6885, German record 6651).
The principle of truth was also not deserted in that, for instance, Poles were not called as witnesses when this was necessary. If they have appeared but few times, this was because, as a rule, Poles were quartered singly on farms.
Of course, one can say: "Well, these are single instances in which Rothaug acted correctly." But these real acts contradict the tendency for which proof is being attempted with the unconnected repetition of certain unsuitable or trivial remarks; for in the end there is, in real life, a great difference between the expression of temperament, which is part of many men, and his actual behavior.
Rothaug never represented the viewpoint that Poles had no right of self defense, as Ferber claims. (English record 1687, German record 1706). The situation was like this: The Poles on the farms, like the German help, had a patriarchal relationship to the proprietors. The law has always imposed certain limitations on the right of self defense in such cases, just as in the relationship between superior and subordinate, and parents and children.
The question was, for instance, whether a Polish farm hand could be granted the right to answer an improper oral reprimand by the master with an attack with a pitch fork. This had nothing to do with a limitation of rights detrimental to the Poles.
The Special Court usually gave an acquittal or a very mild sentence in cases where the German party gave cause for an altercation. (English record 1741, German record 1760).
In cases against foreigners for offenses against the Decree against Malicious Attacks, it was a fundamental rule that foreigners, who did not owe allegiance to the Reich, were to be less strictly judged than natives (Germans) (English record 1697, German record 1715).
The Polish cases that came before the Special Court in Nuernberg were almost without exception cases wherein German laws had been violated and in which, therefore, the German laws had to be applied, in accordance with sections II, III and XIV of the Polish Decree.
The statement of Dr. Baur, that Rothaug had expressed the opinion to him that foreigners could not claim extenuating circumstances, as far as an impairment of intelligence is concerned, because the intelligence of foreigners could not be measures by German standards, is not true.
There is no verdict where such nonsense has been stated. In this case too, a question which has been put at the time has been artificially distorted into an incriminating point. It is merely a question of factual statement, also supported by the medical officers of the circuit court, that a lower intelligence standard of such nations that have bad educational facilities is frequently nothing but an apparent symptom without any psychopatic foundations.
This alone was the salient point.
As to the penal code for the Poles I have already discussed a number of exhibits which were meant to prove how the lower-rank German judges and prosecutors were forced to consider the problems arising thereof.
In the Rothaug-Exh.118 a chief prosecutor of the Supreme Reich Attorney's Office (Reichsenwaltschaft) at the Supreme Reich Court (Reichsgericht) states as follows:
"Up till now the penal code for Poles which imposes the most severe enforcement has been in the fore, for example Supreme Reich Court (Reichsgericht) in the criminal cases volume 76, page 151."
In the Rothaug-Exh. 119 the attorney general at the Supreme Reich Court (Reichsgericht), in a survey on the decisions of the Supreme Reich Court (Reichsgericht), mentions a case in which the Supreme Reich Court (Reichsgericht), in consilili casu arrived at convicting a catholic minister based on the war emergency laws, because he commended some attending Polish prisoners of war, of all people, as shining examples of Christianity and piety to his flock, who were rather slack in attending church service. Considering this officially published interpretation by the highest prosecution authorities concerning the Polish problem, it cannot be stated at all that the lower courts went too far in asserting the intention of this legislation.
And now some individual criminal cases concerning Poles:
a) The witness Kunz (Prosecution-Exh. 233), (English court records pages 3577 to 3591) mentioned the case of an allegedly young Pole, who severed with a keen knife (Zeidenmesser) the fingers off the hand of a peasant child. He does not know any further details of the case. He claims to remember this precisely that he made the assertion for the Pole that there was only a childish scuffle.
He does not know the facts on which this opinion is based, therefore he does not know the most important fact. The enraged Pole had actually struck the sharp bush-knife against the child's hand and chopped off part of the hand above the fingers. This grave result, because of his nature, cannot be easily explained as a carelessness.
In any case, this was purely a judicial question. The Pole was a married man whose wife lived near his place of work. There is no recollection as to the time and the final result of the proceedings.
b) The sentence given to Koziak Adam which is listed in the index of the death sentences (Prosecution-Exh. 238) was pronounced by the Reich Supreme Court on 7 November 1942. Koziak had procured a pair of trousers for a Serbian prisoner of war in order to enable him to escape to his family. The Special Court in Nuernberg sentenced him to a term of several years in a penal camp because it believed that pity was the only motive for the Pole to commit this act. The Reich Supreme Court immediately pronounced the death sentence because there was always the danger that the Serb might desert to the Tito troops; this would be the decisive point and not what the Pole had in mind.
c) Rothaug does not know the case Pirnack by its name but he knows about the facts of a case which probably is the case Pirnack. On the basis of the dissection performed on the oadaver of the dead cow by the veterinary surgeon, it was clearly established in this case that pieces of glass had been mixed into the fodder absorbed by the cow.
The defendant admitted this act and also the fact that he acted in this manner motivated by Polish nationalism.
Every German committing the same act with the same intention would have been sentenced to death.
The witness Heinz Hofmann too, had to admit in his cross examination that the purpose in these cases was to commit acts of sabotage.
(English minutes pages 8821/22, German minutes page 8453).
d) Murzyn who was well informed about the law prohibiting the possession of arms and the penal consequences of this law, carried a specific number of explosives in his luggage. Explosives were considered to be the most dangerous arms to possess. It was not possible that Murzyn could have stolen these explosives. The fact could not be doubted that he kept them ready for any emergency, otherwise, being aware of the severe penalty, he would not have car ried them along.
The conviction was based on Par. I (4), number 5 of the decree concerning Poles which as a rule called for the death sentence, In view of the particularly dangerous possession of being fully aware of the penal consequences, predominant extenuating circumstances could not be allowed. The sentence was pronounced according to the clearly visible intention of the law. It is beyond any doubt that this directive represents a security law and not an extermination law.
e) In the spoliation case against Pavule and 4 others, the witness Heinz Hofmann, in his cross-examination, could not firmly ascertain that Rothaug was presiding. (English minutes page 8822, German minutes page 8454)
f) In the case against Salisch it is not certain whether the criminal was a foreigner at all. However, the Special Court in Nuernberg with Rothaug presiding pronounced the death sentence as the only punishment provided by the law. While in police custody during an air-raid, after the cell doors had been blown open by the air pressure of a bomb, he had entered a room containing personal belongings and stole a valuable watch belonging to a fellow prisoner.
g) In the case against Serafin in which Rothaug cannot state with certainty whether he was presiding, the criminal had used a razor inflicting serious and life endangering wounds on the neck and face of a peasant girl. The conviction was based on the decree against crimes by violence which absolutely called for the death sentence. This would have been applied to every German also. Heinz Hofmann knows about the case only from newspaper articles as he admitted in his cross-examination (English minutes, pages 8823/24, German minutes, page 8455); these newspaper articles were presented to him when making the affidavit. The Tribunal has rejected the use of newspaper articles as evidence. I have doubts that it was admissible for the evidence that the knowledge of the witness which was solely based on newspaper articles, was admitted in the proceedings as his own knowledge.
In the case against Lopata I first call attention to the following mistake in the records presented by the Prosecution (Doc. Nr. NG 337 in Document Book IIIE)
1) In the indictment served on 18 August 1942 the handwritten motion, mentioned during the proceedings, for appointment of a public defense counsel is missing.
2) Following in the text of the last sentence under number 2 of the reasons for the verdict: "The entire inferiority is based on character and is evidently founded in his being a part of the Polish subhumanity." Therefore it does not read "part of the Polish subhumanity race".
3) In the note attached to the copy of the indictment concerning the intended sentence proposed by the Prosecutor of which one identical copy was submitted by the Prosecution to each, the Attorney General and the Ministry, the words "6 years of severe punishment camp" are not crossed out in the submitted German copies, as it is the case in the original, and are replaced with the handwritten word "death sentence".
4) Lopata was not a juvenile but was 25½ years of age at the time he committed the act as it is proved by the findings of the verdict.
5) It should read in the final paragraph of the findings of the verdict pronounced by the Special Court: III, paragraph 2, sentence 1 (not sentence 2) of the decree concerning Poles and Jews because Art. 4 of the decree against public enemies, applied in this case, represents a law which called for the death sentence and not a law which did not call for the death sentence (Case III, par. 2 Sentence 2.)
THE PRESIDENT: Just a minute, we will take five minutes recess while the firm is prepared for further argument.