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.
(A recess was taken.
THE MARSHAL: The Tribunal is again in session.
DR. SCHILF: Your Honors, may I just say something about the order of the day. The defendant would like this evening to discuss their last words with their Defense Counsel. Technically that would be impossible if we proceeded beyond half past five because after halfpast five the prison authorities cannot allow the defendants to go to the visitor's room. Therefore, we would like to make the request to recess at half-past five -- before half-past five, and tomorrow morning we can give you assurance that tomorrow morning in good time the final pleas of the Defense Counsel will be finished.
THE PRESIDENT: To will continue until five-thirty. Go ahead.
DR. BRIEGER: In view of the fact that the Tribunal wishes me to start with my plea today, I should like to say that I am very willing to do so, but so far I only have had the first nineteen pages from the office. I think perhaps I shall leave out some of those nineteen pages, and, therefore, I should like to leave it to the discretion of the Tribunal to make a ruling as to whether it is worth while my starting today at all.
THE PRESIDENT: It is worth while for you to start if Dr. Koessl finishes before 5:30.
You may proceed, Dr. Koessl.
DR. KOESSL: Continuing with the Lopata case.
The verdict pronounced by the Amtagericha Neumarkt on 26 April 1942 was based on the fact that Lopata had reached for the sex organ of a peasant woman three times through her clothese in spite of her physical and verbal resistance. The Reich Supreme Court suspended the sentence because the Amtsgericht had not examined the applicability of par. 4 of the decree against public enemies.
The sentence was unjust because a substantially higher penalty was called for if the decree against public enemies would have been applied which was applicable to the case.
The confinement of the Special Court to the mandatory judgment of the Reich Supreme Court existed in the fact that, if the defendant had actually taken advantage of the proven war time conditions, it had to apply par. 4 of the decree against public enemies.
A further question was to what extent the verdict of the Reich Supreme Court contained a confinement with regard to the amount of punishment. (With reference to this see Rothaug-Exh. 31) In a concrete case the principles expounded here signify the confinement of the judge of facts namely that, in case par.
4 of the decree against public enemies was applicable, he had to decide for a substantially higher penalty. The formulation "substantially higher penalty" was, because nobody could foresee the final result of the coming main trial with regard to the penalty, the only possible and therefore could not indicate any maximum limitation of punishment, especially it could not exclude the death sentence, on the other hand it did not make it mandatory.
Based on the testimony of Dorfmueller, Rothaug is accused of having brought the idea of the death sentence in connection with the matter. Dorfmueller cannot disclose the source which gave him the instruction to treat this case as deserving the death sentence, but he suspects that Rothaug, prior to the time the change in the judgement of the criminal act had appeared in the files, was in possession of the files, as well as in consideration of Rothaugs mentality allegedly known to him. Such an assumption is about the opposite of a conslusive evidence. The entire evidence facts are in contradiction to it.
The fact that a positive file note concerning the contents of a directive is missing is easily explained by the high handed manner in which Dorfmueller admittedly handled such cases. As it is evident from the decrees dated 12 August 1942 and 14 August 1942, Dorfmueller presented the files to the Court with the motion to get a date for the trial without having prepared the indictment of all (Rothaug-Exh.
107).
When he had handed in the indictment it had to be given back to him again by order of 27.8.1942 because documents were still missing. Actually, he had made a note, if only in his own way, about the change of opinion regarding the amount of punishment imposed, in that on the note on the Prosecution copy, which as a documentary report was in his inter-office files, he had crossed out the words "6 years at hard labor in a punishment penal camp" and replaced them by the words "death penalty," without adding a date or indicating who was responsible for the change. In this way, 5½ years after what at the time had been a daily routine, he had left the matter open to anybody's guess.
In spite of this, the date of the alteration can be ascertained with certainty. Exhibit 107, page 10, reveals that the files on 28.8. 1942 were resubmitted by Dorfmueller on 21.9.1942. His order of 1.9. 1942, which has the superscription "very urgent", shows that he had already had the files resubmitted on 1.9.1942 for the purpose of requesting the photographs of the defendant.
It necessarily follows from this that the alteration in the draft concerning the punishment imposed was made on this day. Since then two weeks had passed since the signature had been affixed under the indictment and 5 days had passed since Rothaug had had anything to do with the matter. Therefore, there was certainly time enough for Dorfmueller's superior offices to issue orders either personally or by telephone.
That Rothaug did not think that the crime deserved the death penalty at the time when the files were before him on 27.8.1942 is evident from the fact that he did not assign a defense counsel in the order of 27.8.1942, which his office would have obliged him to do if he assumed that the crime was one calling for the death penalty (Rathaug Exhibit 109). The mysterious ways which Dorfmueller supposed, him to have used for this purpose were not necessary in this connection.
Neither Rothaug nor his Assistant Judges Ferber and Pfaff had at the time intended to pass the death sentence, if only the facts could have been proved which had been submitted to the Neumarkt District Court. This is supported by the viewpoint of the court as stated on 25 October 1942 in connection with the petition for a pardon. (Prosecution Document No. NG 337). This had been put on the record following the deliberations on the verdict in the judges' room, even before the verdict had been pronounced. The verbatim text of this considered viewpoint reads: "The complete picture of his character, described at the main session, especially the fact that the defendant was found guilty apart from the proved severe offense, judging from the execution and the perseverance used therein, also of using violence towards his employer, demand that the penalty be executed". Besides, the reasons for passing the sentence particularly emphasize that the defendant used violence. During a cross-examination (English court records, page 3793 to 2800) the witness Paulus had to admit that he demanded the death penalty because his superiors - not Rothaug - instructed him to do so. This incident had to be taken into consideration to judge the crime as well as the character of the perpetrator. I refer to the Rothaug-Exh. 7 page 65. It is mentioned therein that there are objections, when the penalty is to be determined, also to consider other criminal acts which had been proved, and which were to be further incriminating factors, because of the criminal perseverance which was manifest in those acts. Until violence was used the crime appeared more as a primitive-audacious and impertinent action. However, judged by the behavior of the defendant - considering the action as a whole - this crime assumed the character of a brutal, terroristic-contemptuous act. The act of violence constituting a criminal action in itself was a specially severe offense according to verdicts which had been passed by the Supreme Reich Court.
In such a case the death penalty could even be imposed on a German - whether it would be imposed depended on the question of the *---* reaction remained coupled with the principles and considerations of criminal law which the law required.
If, on the other hand, it is pointed out that mention was made in the Lopata verdict of the defendant's belonging to Polish subhumanity, then the word "sub-humanity" (Untermenschentum) did not mean the same as what was supposed to have been said, as expressed in the incorrect translation "subhuman race" (Untermenschenrasse).
The word "subhumanity" is not taken from the political vocabulary, but is meant in the old traditional sense. In the language of crime the term "subhumanity" was understood, and is still understood, to mean persons who by criminal disposition have an attitude which is fundamentally hostile to the community. The opposite of the subhuman being is not the superman, but rather the normal human being who approves of the community by nature. The "superman" of Nietzsche, in whom the witness Buchtal sees the opposite of the subhuman being, is not, like the subhuman being the normal human being, a real phenomenon in the sociological structure of a nation, but is rather the personification of a visionary philosophical prognosis as the result of the revaluation cf all values. This purely scientific doctrine of a philosopher who died in Switzerland, and which is over half a century old, has not the slightest thing in common with the political "gentlemen's point of view", or with "upper class morality" (Herrenmoral).
The restriction in meaning of the term "Polish subhumanity" in the verdict of the Special Court in the sense of a criminal class is shown by the context of thought in which the term appears, since the reasons given for assuming that the defendant belonged to polish subhumanity are found in his own purely personal traits of degeneracy. The mode of expression used by the Special Court was based on the fact generally known at that time that primarily the reason for the great increase in serious, non-political crimes among the Poles in the Reich was that no discrimination was being exercised in recruiting workers and that in this way many criminals were entering Germany. This mode of expression was particularly familiar to the Special Court, which almost daily had to apply the laws which had been developed against its own subhuman citizens.
Rothaug Exhibit 108 contains the Prosecuting Attorney's views on clemency. Under IV it says: "The act of the defendant was one of common and shameless provocation. No extenuating circumstances of any kind are present. Therefore, I call for the execution of the death sentence. On the previous page under the words "Author of this report" is Prosecuting Attorney Dr. Dorfmueller, that is the same man who, as a witness before this Court, indulged in an especially disapproving criticism of Rothaug's opinion in the Lopata case. The statement of Dr. Georg Engert, who was examined as a witness and who exerted himself with suppositions for his own protection and disapproving criticism, is to be judged in this light (Prosecution Exhibit 156, English transcript, pages 3694 - 3698).
In his opinion on the question of clemency he writes that such excesses as the defendant has been guilty of should be proceeded against with the strict execution of the recognized punishment. (Prosecution Document No. NG 337, report of 5. 11. 1942 to the Reich Minister of Justice.)
I now skip several pages. I would like to draw your attention in particular to Number 14, the Schosser Case. You will remember that that deals with Rothaug's work with the Reich's Public I shall refrain from reading those passages and I now come to the concluding passage of my plea:
Rothaug is a man whose private life is without fault or reproach, also with regard to party matters. Everything he is charged with pertains to the sphere of his official duty. Here, according to his character, his moral impulse to absolute fulfilment of his duty at all times and in all situations turned out to be fatal for him.
As a judge he ascertained the facts of the cases conscientiously and according to his convictions, and guided by the decisions of the Supreme Court and to the best of his knowledge and belief he ascertained the intent of the laws.
Nowhere did he apply a method contrary to the law, neither in general nor in an individual case. It is not his fault that he was the product of his time. Every one is that after his own fashion, the one more, the other less.
The punishment demanded by the Prosecution could only be imposed upon him for not having consciously sabotaged, in violation of his holy oath of office taken before God, the legislation of his country which, according to the principles laid down in the constitution, he was not allowed to examine in regards to those points of view which constitute the essential points of this trial.
DR. BRIEGER (Counsel for the Defendant Guhorst): Before I begin with my plea for my client, I should like to hand to the Tribunal a memorandum concerning the special courts which I had prepared at the request of all defense counsel.
As was pointed out earlier this afternoon a translation of my plea has been made of pages 1 to 19 and I now hand two copies to the Tribunal.
CORRECTION SHEET 17 October 1947 MORNING SESSION The following pages arw 10477 A to 10477 We are to be incorporated into the transcript for the above day.
FINAL PLEA ROTHAUG The verdict pronounced by the Amtsgericht Neumarkt on 26 April 1942 was based on the fact that Lopata had reached for the sex organ of a peasant woman three times through her clothes in spite of her physical and verbal resistance.
The Reich Supreme Court suspended the sentence because the Amtsgericht had not examined the applicability or par. 4 of the decree against public enemies.
The sentence was unjust because a substantially higher penalty was called for if the decree against public enemies would have been applied which was applicable to the case. The confinement of the Special Court to the mandatory judgment of the Reich Supreme Court existed in the fact that, if the defendant had actually taken advantage of the proven war time conditions, it had to apply par. 4 of the decree against public enemies.
A further question was to what extent the verdict of the Reich Supreme Court contained a confinement with regard to the amount of punishment. (With reference to this see Rothaug-Exh. 31) In a concrete case the principles expounded here signify the confinement of the judge of facts (Tatrichter) namely that, in case par.
4 of the decree against public enemies was applicable, he had to decide for a substantially higher penalty. The formulation "substantially higher penalty" was, because nobody could foresee the final result of the coming main trial with regard to the penalty, the only one possible and therefore could not indicate any maximum limitation of punishment, especially it could not exclude the death sentence, on the other hand it did not call for it either.
Based on the testimony of Dorfmueller, Rothaug is accused of having brought the idea of the death sentence in connection with the matter. Dorfmueller cannot disclose the source which gave him the instruction to threat this case as deserving the death sentence, but he suspects that Rothaug, prior to the time the change in the judgement of the criminal act had appeared in the files, was in possession of the files, as well as in consideration of Rothaugs mentality allegedly known to him. Such 10477 a Court III Case III FINAL PLEA ROTHAUG an assumption is about the opposite of a conslusive evidence.