The entire evidential 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 set a date for the trial without having prepared the indictment at all (Rothaug-Exh 107).
Then 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 interoffice files, he had crossed out the words "6 years at hard labor in a punishment 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, 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 w s 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 10477 b Court III Case III FINAL PLEA ROTHAUG 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 (Rothaug 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 3800) 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 no 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 use 10477 c Court III Case III FINAL PLEA ROTHAUG 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.
(Reichsgericht).
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 concrete injury and danger to the community with all its criminal and individual characteristics. And here it is difficult to construct parallel sets of facts. Indeed, as a matter of course, there is a fundamental difference, as Rothaug has said, (English transcript, page ---) whether in wartime there are five million native and loyal men living in a specific area or five million people of a race which stands opposed to one's own nation with an invincible hatred which is kept alive from abroad.
This difference in the danger of the situations cannot be summarily wiped out with a theoretical example. This is what Rothaug expressed in his examination, and not what is now being put into his mouth. But even if the Special Court had imposed the death sentence without also taking into consideration the circumstances of violence, this result would have been in keeping with the principles developed by the Reich Supreme Court. (Rothaug Exhibit 110). The Reich Supreme Court states here: "Due to wartime circumstances workers of alien race and nationality are being employed in Germany to a great extent who through their work come in contact with German women and children, while the latter, because of the absence of so many men, are without the same protection as in peacetime for their personal safety and womanly virtue. Molestations and injuries against individuals disturb the feeling of security of all and make the men of the front uneasy about the fate of their relatives. This is calculated to weaken the home front and the front beyond our borders. The need of our women and children for safety requires that such offenses be countered with the severest means.
In the field of the application of law against Poles even the severest reaction remained coupled with the principles and considerations 10477 d Court III Case III FINAL PLEA ROTHAUG 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 and 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 of 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 "Polich 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 sub humanity 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, nonpolitical crimes among the Poles in the Reich was that no discrimination was being exercised in recruiting workers and that in this was many criminals were entering Germany. This mode of expression was particularly 10477 e Court III Case III FINAL PLEA ROTHAUG 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 arc 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. (Transcript of 1 and 13, 5). 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.)
12.) The case of Wild, which was held up to the witness Fritsche in cross-examination, (English transcript 5236 -38, German pages 5139 - 44) is of importance here, because Heinz Hofmann (Prosecution Exhibit 556) spoke of an inhuman death sentence in which in a far-fetched way the concept of dissemination according to the Radio Decree was considered to apply. In cross-examination (English transcript 8821 - 24, German 8453 - 56) the latter had to admit that he did not take part in the trial and knew nothing about it from his own knowledge. He knew, however, that an unsuccessful attempt was made to reopen the proceedings against the verdict, so that the proper judicial authorities were in agreement with the verdict. Further documents of importance for judging the case are lacking.
10477 f Court III Case III FINAL PLEA ROTHAUG 13.)
The same is true in the Kreisler case, of which Hofmann (Prosecution Exhibit 556) had to admit in cross-examination (English transcript 8821 24, German 8453 - 56) that his statements were based merely upon newspaper clippings which were shown to him when he gave his affidavit.
14.) The Schosser case is mentioned by the witness Ferber. Moreover, Schosser has been examined as a witness. The charge that Rothaug instigated the trial was refuted by the original records. (English transcript 7484 et seq., German 7200 et seq.)
Schosser made an announcement in church about carrying the body of a Pole to the cemetery, and got the population to take part in the church proceedings. This led to a disturbance. According to Figure 5 of the Decree of the Reich Defense Commissioner VII and XIII only the technical personnel was allowed to participate in the burial procession on the German side.
The announcement of the funeral procession and the participation of the people which resulted from this was regarded as a demonstration against the State regulations.
The State Prosecutor's office, and not, as the Prosecution says, the local examining magistrate in Amberg, was the authority responsible for notifying the office of the Kreisleiter in Amberg. Rothaug had nothing to do with this.
Exhibit 84 shows that the President was the competent authority for issuing the order of arrest applied for by the State Prosecutor's office.
10477 g Final Plea Rothaug (Page 122 of original) Rothaug's lack of interest in the matter is shown by the fact that the case was handed over to Ferber for preparation, even if he also took over the matter again himself after conferring with Ferber.
The order of arrest of 15-6-1942 was based on the strong suspicion that there had been an inflammatory demonstration against the State regulation of the Polish question.
Legally, Par. 130 a of the Reich Penal Code, dating back to the time of Bismarck, and Par. 2 of the Law Against Malicious Attacks on State and Party, were thereby violated. (Exhibit 121).
(Page 123 of original)
Neither in fact nor in law did the occurrence have anything to do with persecution for religious reasons.
The protective custody imposed by the Regensburg police was not known at that time and was without any significance for the duty of the State Prosecutor to prosecute, since police measures could only be taken in cases of breaches of the peace, but could not, however, apply to cases constituting a crime at law.
Against the order of arrest Schosser pleaded that since he had been inducted into the Wehrmacht he had acted out of ignorance of the State decree and moved for a suspension of the order of arrest. On 7-7-1942 the Special Court, without Rothaug being present, issued a decision in which Schosser's motion against the order of arrest was rejected as being without foundation in fact. (Rathaug Exhibit 209). This decision bears the signature of the man who has attacked Rothaug to an exceptional degree in this matter, namely, Ferber. It is true that the Prosecution witness Ferber finally did suspend the order of arrest, but here he is only making a virtue of necessity. Since no charge was brought, he was compelled, according to Par. 126 of the Code of Criminal Procedure, to suspend the order of arrest, and, indeed, without examining the facts of the case, because the State Prosecutor had made a motion to this 10477 h Final Plea Rothaug effect.
(Rothaug Exhibit 73).
(Page 124 of original)
The proceedings were suspended on 27 August 1942 (Rothaug Exh. 209).
With reference to the action concerning the sermon about the "ravening wolves in sheeps' clothing" it could be proved on the grounds of the original documents that the witness Kurt Hofmann made this case in virtue of a political judgment in which the sermon was mentioned. The basis of a new preliminary proceedings against Schosser.
A record of proceedings was kept in the internal files of the Office of the Public Prosecutor. With regard to this the witness for the prosecution Wilhelm Hoffmann reported to the Chief Public Prosecutor on the 17 October 42: "The matter was taken up because the case was contained in a political judgment of the Local Chapter Vilseck, which the witness Stubenvoll delivered up "as interrogation material I c Sg 948/42." (Exh. 209).
(Page 125 of original)
Rothaug therefore has not caused this either.
The deed was not ended by prescription and had to be prosecuted after the Ministry on 19 Nov 1942 ordered punishment according to the Heimtueckegesetz (Exh. 209). (Law against malicious political acts or insults to the State and Party.)
Schosser was the accused in those proceedings of 5 years ago and was convicted. The convicted person experiences everything under the psychic pressure of the oppressing trial and inevitably has his passion form the picture of it in his memory. Schosser was at that guided by 4 cues which he took down immediately after the sentence was pronounced. Towards the background of the subjective picture of this witness I want to state the essentials; Schosser is said to have accused the leadership of the State of depriving the people of their religion, as the Communists and Social-democrats have done in former times. Besides he was said to have called the constitutional principle of freedom of religion idle talk.
10477 i Final Plea Rothaug The judgment (Roth.
Exh. 209) shows in which way factual, legal and political problems were discussed, Schosser was convicted because he pursued political intentions under the cloak of religion. This he conceded here to a much greater extent (Page 126 of original) as was assumed in the judgement.
He was in the first place convicted on the basis of Par. 130a of the Penal Code. The discussions at the trial were, besides the evidence questions, to sum it up briefly conducted on the following basis: Since the population is composed of people of various faiths and the state has to demand the same from all its citizens, it must let them achieve salvation according to their own taste. Schosser may as a minister stand for the correctness of his faith. He may send all who do not share his faith to hell, but he had no right to attack the principle of religious liberty as such.
After the Peace of Westphalia in many territorie s of Germany the principle was established: "cuius regio, eius religio". This brought about cruel persecutions and expulsions. Against this principle the Great maintained that in his country everybody may find salvation as suits him best. This idea was accepted in all later constitutions and became the foundation of Germany's State and Folk life.
It was further discussed that in religious activities clergy and citizens are free. Forbidden are only politics from the pulpits. People go to church to hear the word of God, but not to listen to political lectures. If the accused feels a calling in this respect than he has missed his profession.
The minister has no responsibility in the question of political leadership, therefore he cannot be granted the possibility of exerting any influence in an adverse sense.
The clergy that goes in for politics, dispensing of heavenly favors according to political colour, always has been an evil.
10477 j FINAL PLEA ROTHAUG (Page 127 of original) In so far as anyone concerns himself with publications in the religious field Schlosser may oppose him from the point of view of his faith.
Only he must say what he is opposing and whom. It must never happen that the statements can be referred to the Government.
Moreover the clergyman is not suited either, in view of his whole upbringing and his calling which concentrates on the after-life, to mix himself up in the political sphere. He sees the life of the nation to too great an extent through a glass.
The church tries to get hold of the young as early as possible, the state tries to do the same. As long as each remains strictly within the limits of his own sphere no quarrel should ensure. He - Schlosser -- had no understanding for that because he grew up in another time.
It is correct that the case of the Poles was mentioned. The Public Prosecutor with the order of 27 August 1942 (Exh. 209) had allowed these documents to be included in the new proceedings as evidence.
Therefore, Rothaug was obliged to mention these documents at least by way of the charge. In the question of the Poles Rothaug adopted the point of view which was generally adopted in public by the representatives of the state. At the same time to justify (Page 128 of original) the Security-police measures he pointed out the case of murder in which one Pole had slain another with a wooden stick in a brutal manner and on which a decision had been reached a short time previously.
If Schlosser knows nothing about it then he either missed it or it slipped his memory. He discussed general, as was stated in Supreme Court decisions, that the serious murders of Germans had created a situation which would have to be the basis of the understanding of the whole thing. There were even things for which individuals could not forgive themselves nor nations and peoples. That is holy hatred which is just as real as love.
Since nothing incriminating of a compelling nature was produced for 10477 k FINAL PLEA ROTHAUG Schlosser the matter was not used against him.
The request of the defense counsel that the witness Stubenvoll should produce the slip of paper on which the latter had noted down his wife's statements about the sermon could not be complied with since the witness Stubenvoll as a witness had to make a statement about this same thing. This slip of paper could only have been introduced as a document if the witness had asked for it to support his memory.
Also those things with which the female witness Stubenvoll was charged out of the police records were legally admissible (RothaugExh. 198) The punitive measure of the verdict compared with punishments meted out elsewhere at that time is charitable.
(Page 129 of original)
15) In the case of Crasser the prosecution has submitted the indictment with Exh. 139. It is important that it is based on 5 counts:
1) Grasser designates the attempt on Hitler's life as a plot of the NSDAP.
2) He extols the entry of a German into the French army to fight against his own people.
3) He designates America and Russia as the coming victors in the war.
4) He stands up for the bombardment of the residential quarter of Schwabach because the German labour market was weakened by it.
5) He places doubt in the efficacy of the German night-fighter weapon.
The Public Prosecutor rated this act as a continued crime according to Par. 2 Section 1 of the Law against malicious attacks on State and Party.
First of all Rothaug fixed a day for the trial on 18 June 42 namely 2 July 42 without appointing a defense counsel, only on 30 June 1942(Recs Eng. 7508) does he take this step for reasons contained in the order of 30 June 42.
10477 1 Final Plea Rothaug In reply to the question of the prosecution in cross-examination as to whether Rothaug might have condemned Grasser because of some other deed than that assumed in the indictment, it can only be said that Grasser was not condemned because of a deed other than the one assumed in the indictment, but only because of other legal viewpoints, namely besides Par.
2 of the Law against malicious attacks on State and Party also Par. 4 of the Public Enemies Decree and Par. 5 Section I No. 1 of the Extraordinary War Penal Law Decree. The Court was bound to these if the defendant by one and the same deed had violated these provisions.
(Page 130 of original)
Here I refer to the Rothaug Exhibit 132 according to which the judge may pronounce guilty even him whom the Public Prosecutor would have acquitted. For example the Court may sentence for robbery or falsification of documents if the indictment reads theft or fraud. This authority includes likewise the corresponding obligation. Further the Court may exceed the requests of the Public Prosecutor in the manner and degree of punishment.
The decision of the Supreme Court (Rothaug Exh. 140) states that the judge has to base the decision on his conviction alone and not on the interpretation of others. That Rothaug's interpretation was the result of the study of the documents on 30 June 1942 is evident from the connection between Numbers I -- V of the order of 30 June 1942 and the day of appearance 2 July 42 (Prosecution Exh. 139). Nor is there any question of an arbitrary assumption.
To understand that the following must be observed:
(Page 131 of original)
In the deed in the indictment with its five counts, the Investigating Judge, when he issued the warrant of arrest, saw a crime of high treason (Rothaug Exh. 123) and (Rothaug Exh. 122). Also the office of the Public Prosecutor in Nuernberg itself described the same deed as a crime 10477 m of high treason in its report of 1 December 41 to the Chief Public Prosecutor at the Peoples' Court.
The statement of the witness Engert (Prosecution-Exh. 136) that the Chief Public Prosecutor had returned the case as a crime involving malicious attack on State or Party to the Office of the Public Prosecutor Nuernberg is false. The Chief Public Prosecutor handed over the case on 18 December 1941 to the Chief Public Prosecutor (Courts of Appeal) in Munich (Prosecution-Exh. 139) in accordance with Par. 5 II of the Jurisdiction Decree for prosecution as a crime of high treason (Prosecution-Exh. 139).
Also the Chief Public Prosecutor in Munich has not decreed that the deed submitted to him was possibly no crime of high treason. There was Quite a different reason for the fact that he handed over the case to the Office of the Public Prosecutor at the Special Court, Nuernberg as a case of malicious attack on State or Party. That is evident from his order of 11 April 42 (Prosecution-Exh. 139). In this order the proceedings because of utterances with reference to the extolling of the treasonable behaviour of a German, with reference to the propagation of prospects of victory for Russia and America, the justification of the bombardment of residential quarters and the inefficacy of the German night-fighter weapon are suspended because in the opinion of the Chief Public Prosecutor in Munich these counts of the accusation were believed to have been unauthenticated. And as there remained only one other count that was the remark about the attempt on the life of Hitler. With reference to this one remaining remark the Chief Public Prosecutor in Munich assumed no crime involving high treason but justly only a crime involving malicious attack on State or Party.
10477 n Final Plea Rothaug (Page 132 of original) For this the Nuernberg Prosecutor's Office was locally competent.
The following proves how reluctant Rothaug actually was to extend the matter unnecessarily and deliberately on his own bat:
Grasser protested against the arrest warrant issued by the Nuernberg investigating judge (Rothaug*Exh. 127). When the Nuernberg Chief Prosecutor submitted the case to the Special Court to obtain a decision (Exh. 129), Rothaug stated in the decree of 25 April 1942 (Rothaug-Exh. 130) that the arrest warrant which had been submitted was based on paragraph 83/11 of the criminal codes (the crime of high treason), and that, therefore, the Special Court had no jurisdiction. He suggested the alternative of issuing a correspondingly limited arrest warrant; for this purpose he referred to the back of page 44 of the records. He thus referred to the opinion held by the Attorney General in Munish, according to which only the remark concerning the Reichstag fire was to be proved. Following Rothaug's suggestion the arrest warrant was limited as follows: "He - Grasser - said in connection with the Munich assassination of November 1939: "This looks to me like the Reichstag fire at the time." An offence pursuant to paragraph 2 of the law on malicious attacks on State and Party (Heimtueckegesetz)." Bnd of quotation..
Only now came the indictment which - ignoring the premise limited to one count - covered the whole original complex of 5 counts. Indictment of 3 June 1942, Prosecution Exh. 139.
These additional counts, which the prosecutor, the investigating judge, the Supreme Reich Attorney (Oberreichsanwalt), and also the Attorney General in Munich originally considered as high treason, compelled Rothaug to reconsider the charge from a legal point of view, and (Page 133 of original) brought him to the conclusion that Grasser, if he had made all those 10477 o remarks as assumed by the prosecution, could be suspected, being an old communist functionary, of having exploited the existing dejected attitude of those workers in the armament factories who were overstrained by reason of the war.
The decree issued by the Attorney General in Munich was not binding for the Nuernberg prosecutor.
Besides, it is a general rule when a case has been dismissed, that the prosecutor may at any time refer back to the evidence which had been dropped, and base his indictment on this. (Rothaug-Exh. 126).
This practice was adhered to in the Grassner case, although the former legal view on the crime had been dropped without stating any reason for this action. The court, however, was not bound by this novel legal evaluation of the evidence by the prosecution.
Following his decree of 30 June 1942 Rothaug informed the witness Enger that this way of submitting the indictment, based on the original 5 counts, would force the court to pass a more severe verdict, possibly the death penalty, if those 5 counts could be proved. Both Engert and Rothaug's colleagues shared Rothaug's opinion. Soon afterwards Engert informed Rothaug that the Ministry, following a telephone conversation, agreed to the more severe legal views as expounded by Rothaug, although they were of the opinion that a long penal servitude term would suffice. This did not mean, however, that Engert sided with the Ministry. If he had intended to do that, the whole matter could have been settled in a very simple manner.
Final Plea Rothaug (Page 134 of original) He would only have had to withdraw the suit and present the files to the Ministry.
After the facts were proven, this same Engert declared that he will take the motion for the death-sentence "upon his own responsibility".
Neither he nor Doebig made any attempt to soften the court. The transparent allegation of Engert on this point are according to Rothaugs 10477 p explanation deliberately untrue.
(Pros. Exh. 237), (Prot. Engl. p. 1750 - 1767 and 1837 - 1867). Doebig himself does not claim such an influence.
Doebig appeared in the conference room during a recess. He wanted to be of help to the court in finding a safe basis for the judgment. He talked about the application of par. 5, ch. 1 fig. 1. of the "Kriegssonderstrafrechts V O" (Special-Wartime Penal Code) particularly about the notion of "Publicity". The court had considered this point of view already on his own accord.
(Page 135 of original)
As to the evaluation of the act from the view-point of substantive Law it is at first to be referred to the reasons in the judgment of 2. July 1942 (Pros. Exh. 139) which Rothaug, however, did not sign.
It is an experience of both wars that the labor force used in war industry is because of the heavy strain and strongly reduced nourishment particularly exposed to defeatist and communistic utterances. And it was known from the first world war that communistic subversive activities had a particularly dangerous effect within the war industry. For that reason all the district attorneys who dealt with this matter and also the investigating magistrate considered the matter from the very beginning as communistic high-treason. (Rothaug Exh. 7).
At that the fact that Grasser was an active communistic functionary also entered into the consideration. If Grasser made the statements attributed to him at his place of work then, considering his active political activities in the past, he knew as a trained communistic functionary only too well that the ideas represented by him found a willing ear with people of the war industry living under a special war strain and therewith could have most effective publicity possibilities.
(Page 136 of original)
This subversive work by Crasser did then not have high treason as its immediate objective, as much as he might have had in mind the 10477 q bolshevisation - of Germany.
His immediate objective was to shake the confidence of the people around him that the war will end favorably and thus to hurt the German war potential. Therefore Par. 5, ch. 1, Fig. 1, of the "Kriegssonderstrafrechts VO" (special wartime penal decree) was applied.
The fact that Grasser was a Communist was, as the reasons in the judgment show, a point in the evidence for the intentions he pursued. But it was not a reason for his conviction altogether, so that it cannot be said that Grasser was persecuted as a political opponent.
How much this judgment corresponded with the line established by the Reichsgericht can be seen by comparison to Pros. Exh. 247.
It was sufficient for the inner part of the act of a malicious attack against the state or Party (Heimtueckevergehen) that an utterance was fit to undermine the relationship of confidence between people and leadership.
At that the special circumstances of time and the personality of the person making the utterance must be considered.
In a treatise of the Reichs-prosecutor's office at the ReichsCourt it is pointed out that in numerous cases the Reichs-Court has repealed judgments of Special Courts because the act was evaluated on the basis of the "Heimtueckegesetz" (Las on malicious attacks against State or Party), while actually it was a case of undermining the defense spirit (Wehrkraftzersetzung). There it is stressed that to assume the undermining of the defense spirit the intention of the perpetrator to paralyze the defense spirit is not necessary. (Rothaug Exh. 137).
Final Plea Rothaug (Page 137 of original) Rothaug-Exh.
138, Decisions of the Reich Supreme Military Court, so explains the conception of "in public", in the sense of Paragraph 5, Section 1, Part 1 of the Extraordinary War Penal Law, that "in 10477 r public" is already established if not fullest guaranty is given when a remark is made that same might not be passed on to other persons.
All these suppositions were given in the case of Grasser.
No preponderance of reasons for leniency were available, from which the case might have been characterized as a less serious one. As a rule however this type of case definitely demanded the death penalty.
This conviction obviously existed also at the Ministry as not only a telephone message, but the documents with the sentence were on hand, because the sentence would otherwise not have been carried out.
The situation report of the General Public Prosecutor wherein the Grasser case is mentioned (Prosecution Exh. 478) contains not a word of criticism regarding the sentence. As this situation report was made with the collaboration of the witness Engert, he probably did not make any objections to the sentence either. This fact, together with the further fact that no legal aid was interposed against the sentence from any side, should be enough evidence to the fact that the sentence in its measure of punishment did not exceed the usual limits.
XI.
Anything to be said in regards to the functional position of the Reich Public Prosecutors Office has been said by the Defense Attorney for Lautz. Barnickel's Defense Attorney will discuss the matter of the Reich Public Prosecutors position as Chief of the Department.
(Page 138 of original)
The Peoples Court is a matter to be handled by the entire Defense Counsel and the Defense Attorney's of Petersen and Nebelung. I can refer to what has been said in regards to this and what will yet be said regarding it.
What generally has to be explained in regards to the service of the Public Prosecution has been explained by me already. Here I would only like to point out, Rothaug had no authority to represent and was 10477 s no ones superior.
Arraignments, staying of proceedings and reports to the superiors were signed by the Chief or his permanent representative, Barisius.
Turning over of cases to the General Prosecutors was ordered by Rothaug according to existing regulations and directives, and signed "By order of" ("Im Auftrage").
The Chief decided the question whether the death sentence was demanded in a case.
Rothaug was in charge of a section specializing in treason from May 1943 to 31 December 1943, of which it could not be ascertained with certainty whether this took in areas which were only annexed by the Reich after 1937. But on no account did it extend to Poland, Czecho-Slovakia and the Alsace.
Beginning 1 January 1944 he handled seditious undermining of the fighting spirit in the Reich exclusive of Poland, Czecho-Slovakia and the Alsace. Beginning March 1944 up to February 1945 this Section was shared by him and Reich Prosecutor Franzki according to odd and even numbers.
But it is of importance that all cases, demanding particularly rapid action because of their importance, were handled in the department of Reich Prosecutor Parisius.
Final Plea Rothaug (Page 138 of original cont'd.)Cases where other legal considerations were prevalent, the aiding and abetting of the enemy or high treason, were referred to the competent departments.
(Page 139 of original)
Only those cases remained with the Reich Public Prosecutor's Office where a central decision was of interest. These were at the most 2-3 cases per day. But by no means did all of these lead to an indictment, they were partly transferred to a lower level later on. From the beginning of the late Fall 1944 less cases came in due 10477 t to the bombing raids, stopping almost completely beginning February 1945.
The legistic-material side of seditious undermining of the fighting spirit has been presented by me in connection with the Grasser case. Here also - Rothaug - noticed no illegalities in judicial matters. - The so greatly stressed alleged tendency for extermination did not exist. In all cases, without exception, the chief question was always: Did the accused really perpetrate the act? The prosecution only began if this question could be answered in the affirmative according to best knowledge and belief.
That is how the personally carried out investigations are explained in previously mentioned case of von Oppenheim.
That is why Rothaug made immediate preparations for personal investigations in the von Praun case, after he had realized that the matter had been inflated far in excess of its importance by the local authorities.
In the case of Treuter, Bayreuth, (Lautz-Prot. Engl. 5987 German 5829 Rothaug Prot. Engl. 6956, German 6712 Martin-Exh. 49), Rothaug uncovered due to his own investigations the collaboration of a group of informers.
Even though his petition for a stay of procedure was not accepted by the Ministry, he never-theless personally petitioned for a finding of not guilty at the trial, as any other verdict was simply not to be considered.
He acted in the same manner in the case of a teacher and a Catholic Priest from the vicinity of Hassfurt (Rothaug Exh. 211) as reported by the witness Koch. Here he was able to have the proceedings stopped by the defendant Lautz, despite the fact that the accused Vogt had already been transferred to Meseritz for disposition by the Peoples Court.
Final Plea Rothaug (Page 140 of original) 10477 u Although these examples do not disprove the fact that in one or the other case it was proceeded in a different manner, they do disprove the alleged tendency, and prove that at that time one did not even think of things as they are charged here.