It is the contention of the defendant that Hansen was an unreliable person who falsely used the name of the State Secretary. It is to be noted, however, that the testimony does not show that Hansen was undertaking to obtain from Eggensberger authority for some contemplated action under alleged authority from the State Secretary. Hansen called Eggensberger who was the official on duty at the Ministry of Justice to make an official report of an action which was already under way and when questioned as to his authority, he cited the approval of the State Secretary. His report was embodied in an official note as he could assume it would be. This note stated that the action taken was based upon the approval of the State Secretary. Surely Hanson, an official under the Minister of Justice, whatever his character might have been, would never have dared to use falsely an alleged authority by the State Secretary to account for the liquidation of some 800 people and then make an official report that, according to all normal procedure, would come directly into the hands of the State Secretary.
This Tribunal is asked to believe that in the middle of January, Himmler took over the operations of the penitentiary at Sonnenburg and that the first time that the State Secretary, the defendant Klemm, heard of the liquidation of those who were not evacuated, was in this trial. That Himmler controlled evacuations within the area of his command was shown by evidence in this case and can be assumed from the nature of the evacuation. An evacuation is a matter of military concern since it involves interference on the roads with military operations and transport. The operational control of a penal institution is an entirely different matter. In the middle of January, Himmler was in command of an army which was having considerable difficulty and he was scarcely in a position to assume the functions and responsibilities in the Ministry of Justice as regards the opera tions of a penal institution.
Certainly if he did so it is strange that Eggensberger, a Referent in Department V dealing with penal institutions, or Hecker, also in Department V and in charge of evacuations of penal institutions, or the director of the institution at Sonnenburg, knew nothing about this transfer of authority some two weeks after it is alleged to have been made. It was also strange that Hansen, who is alleged to have known of this transfer of authority, would call the Ministry of Justice and made an official report as to the transaction on the night when it was under way and cite as his authority for his connection therewith the State Secretary. That the defendant Klemm knew nothing about the liquidation of some 800 people in this institution until he learned it in this trial, over-taxes the credulity of this Tribunal. Even in Nazi Germany the evacuation of a penal institution and the liquidation of 300 people could hardly have escaped the attention of the Minister of Justice himself or his State Secretary charged with supervision of Department V, which was competent for penal institutions. Exhibit 290, herein extensively quoted, shows that the operations of penal institutions and the disposition of the inmates remained a function of the Ministry of Justice, and it is the opinion of this Tribunal that the Ministry of Justice was, at the time of the evacuation of Sonnenburg, responsible for the turning over of the inmates to the Gestapo for liquidation, and that the defendant Klemm approved in substance, if not in detail, this transaction.
When Rothenberger was ousted as State Secretary because he was not brutal enough, it was Klemm who was chosen to carry on the Thierack program in closest cooperation with the heads of the Nazi conspiracy. Klemm was in the inner circle of the Nazi war criminals. He must share with his dead friend, Thierack, (with whom he had lived), and his missing friend, Bormann, the responsibility, at a high policy level, for the crimes committed in the name of justice which fill the pages of this record.
We find no evidence warranting mitigation of his punishment.
Upon the evidence in this case it is the judgment of this Tribunal that the defendant, Klemm, is guilty under Counts Two and Three of the Indictment.
THE PRESIDENT: The Tribunal will take fifteen minutes' recess at this point.
Court No. III, Case No. III.
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Judge Brand will continue with the reading of the opinion:
The Defendant Rothenberger From his own sworn statements we derive the following information concerning the defendant Rothenberger.
He joined the NSDAP on 1 May 1933 "for reasons of full conviction". From 1937 until 1942 he held the position of Gau Rechtsamtsleiter. He states: "As such I also belonged to the Leadership Corps." Parenthetically, it should be stated that the organization within the Leadership Corps to which he belonged has been declared criminal by the Judgment of the first International Military Tribunal, and that membership therein with knowledge of its illegal activities is a punishable crime under C.C. Law 10. We consider the interesting fact of his membership in the Leadership Corps no further, solely because defendant Rothenberger was not charged in the indictment with membership in a criminal organization. He was a Dienstleiter in the NSDAP during 1942 and 1943. From 1934 to 1942 he was Gaufuehrer in the National Socialist Jurists' League. In 1931 he became Landgerichtsdirektor, and in 1933 Justiz Senator in Hamburg. From 1935 to 1942 he was President of the District Court of Appeals in Hamburg. In 1942 he was appointed Undersecretary in the Ministry of Justice under Thierack. He remained in that office until he left the Ministry in December 1943, after which he served as a notary in Hamburg. Thus it is established by his own evidence that while serving as President of the District Court of Appeals he was also actively engaged as a Party official. Other evidence discloses the wide extent to which the interests and demands of the Ministry of Justice, the Party, the Gau Leadership, the SS, the SD, and the Gestapo affected his conduct in matters pertaining to the administration of justice. Rothenberger took over the Gau Leadership of the National Socialist Lawyers' League at the request of Gauleiter Kauffmann, who was the representative of German sovereignty in the Gau and who was, for all intents and purposes, a local Court No. III, Case No. III.
dictator. As Gaufuehrer during the period following the seizure of power, Rothenberger had ample opportunity to learn of the corruption which permeated the administration of justice. He testified:
"It has been emphasized here time and again how during the first period, after the revolution of 1933, every Kreisleiter attempted to interfere in court proceedings; the Gestapo tried to revise sentences, and it is known how the NSRB, the National Socialist Jurists' League, tried to gain influence with the Gauleiter or the Reichsstatthalter in order to act against the administration of justice."
Concerning the dual capacity in which he served, he said:
"On account of the identity, of course, between President of the District Court of Appeals and Gaufuehrer, I was envied by all other district courts of appeal because they continually had to struggle against the Party while I was saved this struggle."
In August, on the eve of war, Rothenberger was in conference with officials of the SS and expressed to them the wish to be able to fall back on the information apparatus of the SD, and offered to furnish to the SD copies of "such sentences as are significant on account of their importance for the carrying out of the National Socialist ideas in the field of the administration of justice." Rothenberger testified that during the first few years after the seizure of power, there was the usual system of SD informers in Hamburg. The unsatisfactory personnel in the SD was removed by Reichstatthalter Kaufmann, and the defendant Rothenberger nominated in their place individuals who, he said, "were judges and who I knew would never submit reports which were against the administration of justice." He sates also:
"In the meantime, the directive had been sent dorn Court No. III, Case No. III.
the Reich Ministry of Justice to the effect that the SD should be considered and used as a source of information of the State by agencies of the administration of justice."
While he was President of the District Court of Appeals at Hamburg, and during the war, this ardent advocate of judicial independence was not adverse to acting as the agent of Gauleiter Kauffmann. On 19 September 1939 Kauffmann, as Reichsstatthalter and Defense Commissioner, issued an order as follows:
"The President of the Hanseatic Court of Appeals, Senator Dr. Rothenberger, is acting on my order and is entitled to demand information in matters concerning the special courts and to inspect documents of every kind.
All administrative offices as well as the offices of the NSDAP are requested to assist him in his work."
On 26 September 1939 Rothenberger, as President of the Hanseatic Court of Appeals, notified the Prosecutor-General of Kauffmann's order and requested that a copy of the indictment "in all politically important cases or cases which are of special interest to the public should be sent to him". In a report to Schlegelberger of 11 May 1942 he spoke of the "crushing effect" of the Fuehrer's speech of 26 April 1942 and of the feeling of consequent insecurity on the part of the judges, and said:
"I have therefore assumed responsibility for each verdict which the judges discuss with me before passing it."
In the same report he states that on 6 May 1942 he made arrangements with all senior police officers, senior SS, senior officers of the Criminal Police, of the Secret State Police, and of the SD "to the effect that every complaint about juridical measures taken by judges was to be referred to me before the police would take action (especially regarding execution of sentence)."
In June 1942 Rothenberger reported to the defendant Schlegelberger that he had made similar arrangements in Bremen with the Kreisleiter, President of the Police, Leader of the Secret State Police (Gestapo), and the leader of the SD. He reported to Schlegelberger:
"In view of the present situation, I am intensifying the internal direction and control of jurisdiction which I have considered to be my main task since 1933."
On 7 May 1942 Rothenberger issued an order in which he stated his intention to inform himself prior to the proceedings on cases which are of political significance "or which involve the possibility of a certain conflict between formal law and the instinctive reactions of the people or National Socialist ideology."
He directed that reports be submitted to him which must be in sufficient detail in order, as he said, "to enable my deputy to judge the necessity of my intervention."
By reference to his own words we have already set forth Rothenberger's expressed convictions as to the duty of a judge as the "vassal" of the Fuehrer to decide cases as the Fuehrer would decide. The conclusion which we are compelled to draw from a great mass of evidence is not that Rothenberger objected to the exertion of influence upon the courts by Hitler, the Party leaders, or the Gestapo, but that he wished that influence to be channeled through him personally rather than directed in a more public way at each individual judge. On the one hand he established liaison with the Party officials and the police, and on the ether he organized the system of guidance of the judges who were his subordinates in the Hamburg area. He testifies that he considered the system cf conferences between judges and prosecutors before trial, during trial and sometimes after trial, but before the consultation of the judges, to be wrong, and states that he considered it more correct, in view of the situation, that such a discussion should take place a long time before the trial and not between individual judges and the prosecutor "but on a higher level, namely, between the chiefs of the offices, so that there would be no possibility to exert an influence on the individual judge in any way." Concerning his dictatorial attitude toward the other judges, Rothenberger testified: "Of course, guidance is guidance and absolute and complete independence of the judge is possible only in normal conditions of peace, and we did not have these conditions after the Hitler speech."
The guidance system instituted by the defendant Rothenberger was not limited to conferences concerning pending cases of political importance before trial. We are convinced from the evidence that he used his influence with the subordinate judges in his district to protect Party members who had been charged or convicted of crime; that on occasions he severely criticized judges for decisions rendered against Party officials, and on at least one occasion was instrumental in having a judge removed from his position because he had insisted upon proceeding with a criminal case against a Party official.
As further illustration of the character of control which was exercised by Rothenberger over the other judges in his district, reference is made to his letter of 7 May 1942 addressed to the judges in Hamburg and Bremen in which he announced that a conference would be held for the discussion of cases fixed for the following week. We quote:
"A few cues to matters which are under discussion will be given, file numbers provided, and key words given."
He especially required of the judges that they report to him concerning penal cases against Poles, Jews, and other foreigners and "penal and civil cases in which persons are involved who are Party or State officials, or NSDAP functionaries, or hold some other eminent position in public life".
One will seek in vain for any simple , frank , or direct statement by Rothenberger relative to any of the abuses of the Nazi system. His real attitude can only be extracted from the ambiguities of his evasive language. We quote from the record of the report made by Rothenberger to the judges on 27 January 1942:
"With regard to the matter it had to be considered whether or not any material claims made by the Jews could still be answered in the affirmative. Concerning this question, it might, however, be practical to maintain a certain reserve."
In an early report to the Hamburg judges, Rothenberger discussed the opinion of the Ministry concerning the legal treatment of Jews.
He stated that the fact that a debtor in a civil case is a Jew should as a rule be a reason for arresting him; that Jews may be heard as witnesses but extreme caution is to be exercised in weighing their testimony. He requested that no verdict should b e passed in Hamburg when a condemnation was exclusively based on the testimony of a Jew, and that the judges be advised accordingly.
On 21 April 1943, as the result of a long period of interdepartmental discussions, a conference of the State Secretaries was held. Rothenberger was at the time State Secretary in the Ministry of Justice and participated in the conference concerning the limitation of legal rights of Jews. Kaltenbrunner also participated. At this meeting consideration was given to drafts of a decree which had long been under discussion. Modifications were agreed upon and the result was the promulgation of the infamous 13th Regulation under the Reich Citizenship Law which provided that criminal actions committed by Jews shall be punished by the police and that after the death of a Jew his property shall be confiscated.
We next consider Rothenberger's activity concerning the deprivation of the rights of Jews in civil litigation. In the report of 5 January 1942 the defendant wrote:
"The lower courts do not grant to Jews the right to participate in court proceedings in forma pauperis. The district court suspended such a decision in one case. The refusal to grant this right of participation in court proceedings in forma pauperis is in accordance with today's legal thinking. But since a direct legal basis is missing, the refusal is unsuitable. We therefore think it urgently necessary that a legal regulation or order is given on the basis of which the rights of a pauper can be denied to a Jew." (Ex. 373, NG 392, Document Book 5-D, page 333).
Notwithstanding his statement of 5 January to the effect that it would be unsuitable to deprive Jews of this right without a legal regulation, we find that on 27 January 1942 the report of a conference shows the following:
"The Senator reported that the question of the poor law concerning Jews has gained significance again. With the district court there were two cases pending. He requested that contacts with the district court and with the local court judges be made at once sc that a uniform line is followed to the effect that the Jews be denied the benefits cf the poor law. It would be entirely out of the question that Jews be granted the benefits of the poor law subsequent to the present development. This would apply especially to Jews who had been evacuated but in his opinion also to these who had not been evacuated."
About this time a report concerning the claim of the Jewish plaintiff, Israel Prenzlau, came to the attention of the defendant Rothenberger, The Jew sought the right to proceed in forma pauperis. The report on the case contains the following statement by a Gau Economic Advisor, which is couched in the usual Nazi language of sinister ambiguity:
"In reply to your inquiry I state my point of view in detail.
"In a lawsuit between a German national and a Jew, I consider the settling of a dispute by compromise settlement in court inadmissible for political reasons. The German national, as party in the lawsuit, pursuant to his clearly defined legal standard derived from his political schooling since 1933, can expect that the court will decide the case by a verdict, i.e., take a conclusive attitude toward the dispute in hand. What is expected is a decision which was arrived at not from purely legal points of view, as a result of a legal train of thought, but which is an expression to the way in which National Socialist demands concerning the Jewish question are realized by German administrators of justice.
Evading this decision by a compromise might mean encroaching upon the rights of a fellow citizen in favor of a Jew. This kind of settlement would be in contradiction to the sound sentiments of the people. I therefore consider it as inadmissible." The report shows that upon receipt of the opinion of the Gau Economic Advisor "the defendants" -- in that case -- "thereupon refused settlement with the plaintiff and now deny that they owe him anything". The court which had jurisdiction of the Prenzlau case granted to the plaintiff the right to proceed in forma pauperis.
On 13 February 1942, having before him the report of the Gau Economic Advisor, the defendant Rothenberger wrote to the President of the District Court, Hamburg, as follows:
"I do not intend to approach the Economic Advisor of the Gau for the time being, seeing from the documents that the ultimate beneficiary of the claim, the son of the plaintiff, emigrated in the year 1938 and his property therefore surely being confiscated. I fail to understand why the court granted forma pauperis rights to the assignee, a Jew, without first consulting the authority for sequestration of property."
A note dated 24 February shows that Rothenberger had issued a directive to two judges of his district to the effect that every case involving the claim of the right of Jews to proceed in forma pauperis must first be submitted to him.
On 5 March 1942 a directive was issued from the Reich Ministry of Justice in substantial conformity with the recommendation of the defendant Rothenberger. It provided:
"In future the granting of rights of forma pauperis to Jews can only come into consideration if the carrying disputes concerning family rights (divorce in cases of mixed marriages, establishing the descent)."
After the enactment of the foregoing ordinance, and on 7 May 1942, a courageous President of the District Court at Hamburg wrote to Rothenberger stating that in his opinion the right of Jews to proceed in forma pauperis would have to be granted. He added:
"I am convinced that it is in the common interest that an Aryan cannot evade without further ado a just claim against him merely for the reason that the court denies the forma pauperis right to Jews."
Notwithstanding this protest, and on 22 May 1942, the defendant Rothenberger, in reliance upon the ordinance which was based upon his recommendation, wrote to the President of the District Court of Hamburg that he considered it "adequate that the forma pauperis right granted to the plaintiff Prenzlau be canceled. Please have this taken into consideration by the court in a form which you deem appropriate."
The foregoing narrative takes on additional significance when summarized. First, Rothenberger recommends to the Minister of Justice that it is desirable to deny to Jews the right to proceed in forma pauperis, but that such denial is inadmissable because there is no law to justify it. He recommends the passage of such a law. About three weeks later, now having been passed, he recommends that the judges take a uniform line depriving the Jew of the right to proceed in forma pauperis.
A specific case now arises in which the right was granted to a Jew, and the defendant Rothenberger receives veiled suggestions from the Gau Economic Adviser to the effect that defendants should not be allowed to compromise a case brought against them by a Jewish plaintiff because the court should decide against the Jew in any event on political grounds. Concerning this suggestion Rothenberger ventures no comment. The defendant in the Prenzlau case takes his cue from the advice of the Economic Advisor and denies liability; the court grants to the Jew the right to proceed in forma pauperis. Rothenberger criticizes this action, although the lower court had acted in strict conformity with the law. In March the awaited law excluding the Jew from the benefit of the poor law is passed. In May Rothenberger overrules the protest of a judge and directs the canceling of the order which was made by the lower court. This dictation by the defendant Rothenberger to other courts and judges of his district was not done in the course of a legal appeal from the lower court to the court over which he presided. It was done after the manner of a dictator directing an administrative inferior how to proceed.
Rothenberger not only participated in securing the enactment of a discriminatory law against Jews; he enforced it when enacted and, in the meantime, before its enactment, upon his own initiative he acted without authority of any law in denying to Jewish paupers the aid of the courts.
It is true that the denial to Jews of the right to proceed in civil litigation without advancement of costs appears to be a small matter compared to the extermination of Jews by the millions under other procedures. It is nevertheless a part of the governmentally organized plan for the persecution of the Jews, not only by murder and imprisonment but by depriving them of the means of livelihood and of equal rights in the courts of law.
The defendant Rothenberger testified that various judges reported to him "that they had heard rumors to the effect that everything was not quite all right in the concentration comps" and that they wished to inspect one. Accordingly, Rothenberger and the other Judges visited the concentration camp at Neuengamme. He testified that they inquired about food conditions, accommodations, and the methods of work, and spoke to some inmates, and he asserts that they did not discover any abuses. This was in 1941. Again, in 1942, according to his own testimony, the defendant visited Mauthausen concentration camp in company with Kaltenbrunner, who was later in charge of all concentration camps in Germany and has since suffered death by hanging. At Mauthausen concentration camp the defendant Rothenberger again inspected installations, conferred with inmates, and inquired as to the cause of detention of the inmates with whom he had talked. He states that from his spot checks he "could not find out that there was any case of a sentence being 'corrected." Upon inquiry as to what the defendant meant by the "correction of sentences", he answered:
"A: By correcting of a sentence we mean that when the court had pronounced a sentence, for example, had condemned somebody to be imprisoned for a term of five years -- if the police now after these five years had been served, if the police arrested this man and put him into a concentration camp -- this is only an example of a correction. Or, even, and this is clearer, it happened that a person was acquitted by a court, and in spite of that the police put this man into a concentration camp. These are examples of correction of sentences."
The defendant stated that ho did not observe and could not discover any abuse at Mauthausen. In this connection the testimony of defense witness Hartmann is of interest. Hartmann accompanied Dr. Rothenberger on his visit to Mauthausen concentration camp. He testified that rumors were current in Germany to the effect that conditions were not what they should be in the concentration camps. Hartmann testifies that they went about the camp freely and observed everything closely. On cross examination by the Tribunal Hartmann testified as follows:
"Q: ***When you visited Mauthausen concentration camp, you knew, did you not, that the courts in the Ministry of Justice never sentenced convicted criminals to a concentration camp?*** "A: Yes.
"Q: Did Dr. Rothenberger know it?
"A: Yes.
"Q: Then you know that these ten people that he talked with, and the one or two that you talked with, were not there by reason of any action on the part of the Ministry of Justice or the court, but were there only by reason of action by the police or by the Party, did you not?
"A: Yes, that was preventive custody undertaken by the police."
The witness Hartmann testified further:
"Q: And they had already served their sentences as imposed by court before they were taken into this custody of the police; is that right?
"A: Yes, that is how I see it.
"Q: And at that time these twelve people who had served their sentences and had been taken over by the police -- that met with the approval of the defendant Dr. Rothenberger, as I understand you?
"A: Dell -- did not approve the concentration camp as an institution altogether, but first of all we wanted to achieve this: that it would no longer happen that a defendant was acquitted and then after acquittal the Gestapo arrested (him) in front of the courtroom. *** In those cases too, he did not approve the fact that these people were in a concentration camp because we were of the opinion that only the Administration of Justice should decide these questions of criminal law and nobody else.
But according to the power conditions within the State, as they happened to exist, our interest was first of all to remove the worst evils."
Upon redirect examination by counsel for the defendant Rothenberger, defense witness Hartmann testified as follows:
"Q: Therefore, was the situation sometimes for you and Dr. Rothenberger like this: that apparently you affirmed something with a smiling face, something which as a human being you had to disapprove of and reject?
To this question the witness answered that Dr, Rothenberger, "for reasons of power politics", had to accept the conditions though he did not approve them. After his inspection of Mauthausen concentration camp, Dr, Rothenberger took no action whatsoever with regard to the information which he had received.
I follows that the defendant Rothenberger, contrary to his sworn testimony, must have known that the inmates of the Mauthausen concentration camp were there by reason of the "correction of sentences" by the police, for the inmates were in the camp either without trial or after acquittal, or after the expiration of their term of imprisonment.
It must be borne in mind that this inspection by the defendant Rothenberger was made at Mauthausen concentration camp, an institution which will go down in history as a human slaughter house and was made in company with the man who became the chief butcher.
We are compelled to conclude that Rothenberger was not candid in his testimony and that in denying knowledge of the institution of protective custody in its relationship with the concentration camps ho classified himself as either a dupe or a knave. Nor can we believe that his trips to the camps were merely for pleasure or for general education.
He also advised other judges to make like investigations. We concede that the concentration camps were not under the direct jurisdiction of the Reich Minister of Justice, but arc unable to believe that an Under-Secretary in the Ministry, who makes an official tour of inspection, is so feeble a person that ho could not even raise his voice against the evil of which he certainly knew.
If the defendant Rothenberger disapproved of protective custody and the consequent employment of concentration camps, it must be because of a change of heart concerning which we have had no evidence. On 13 June 1941 Rothenberger wrote Secretary Freisler suggesting that many small cases were being tried by the special court and that this was not compatible with the importance of the court. He referred to minor offenses which came under the public enemy decree, "in which, however, protective custody will be requested by virtue of the offender's past life and his character". Again, he speaks of cases in which motion is made for the offender to be taken into protective custody.
On 5 January 1942 the defendant Rothenberger addressed a report on the general situation in the Hamburg area to the Reich Minister of Justice. From this document his attitude concerning the institution of protective custody may be ascertained. Concerning the "transfer to the public prosecutors of the right to decide about the duration of protective custody", he said:
"In a certain connection with this problem is the transfer to the public prosecutor's office of the right to decide about the duration of the protective custody. I regret that it is obvious that the courts are more cautious and reserved than they were previously in regard to the order of protective custody, because the duration of the protective custody is not any more within their control.
This attitude of the courts cannot be approved, but it is psychologically understandable, I am afraid, that the reform effected the opposite of the intended more vigorous practice in regard to protective custody."
In February 1939 the defendant Rothenberger and the Chief Public Prosecutor reported to the Hamburg judges upon a conference which had boon held in Berlin. The record of the joint report in which Rothenberger participated is as follows:
"A report was then made on the discussions on protective custody. The Ministry is of the opinion -- also held here -- that no objection can be raised to protective custody as long as it is purely protective, but that corrective measures, such as became known in certain cases, must not became a habit."
In conclusion, the evidence discloses a personality full of complexities, contradictions, and inner conflict. He was kind to many half-Jews, and occasionally publicly aided them, yet he was instrumental in denying them the rights to which every litigant is entitled. He fulminated publicly against the Schwarze Corps for attacking the courts, yet ho reproached judges for administering justice against Party officials and unquestionably used his influence toward achieving discriminatory action favorable to high Party officials and unfavorable to Poles and Jews. He wrote learnedly in favor of an independent judiciary, yet he ruled the judges of Hamburg with an iron hand. He protested vehemently against the practice of Party officials and Gestapo officers who interfered with the judges in pending cases, but ho made arrangements with the Gestapo, the SS, and the SD whereby they were to come to him with their political affairs and then he instituted "preview and review" of sentences with the judges who were his inferiors. He thought concentration camps wrong but concluded that they were not objectionable if third degree methods did not become a habit.
Rothenberger was not happy with his work in Berlin. In his farewell speech on leaving Hamburg, he exuberantly exclaimed that he had been "an uncrowned king" in Hamburg, but he would have us believe that he received a crown of thorns in Berlin. Soon he learned of the utter brutality of the Nazi regime and the cynical wickedness of Thierack and Himmler, whom he considered his personal enemies. He could not stomach what he saw, and they could not stomach him. The evidence satisfies us that Rothenberger was deceived and abused by his superiors; that evidence was "framed" against him; and that he was ultimately removed, in part at least, because he was not sufficiently brutal to satisfy the demands of the hour. He was retired to the apparently quiet life of a notary in Hamburg, but even then we find that he was receiving some pay as an undersecretary and was assisting Gauleiter Kauffmann in political matters in that city.
The defendant Rothenberger is guilty of taking a minor but consenting part in the Night and Fog program. He aided and abetted in the program of racial persecution, and notwithstanding his many protestations to the contrary, he materially contributed toward the prostitution of the Ministry of Justice and the courts and their subordination to the arbitrary will of Hitler, the Party minions, and the police. He participated in the corruption and perversion of the judicial system. The defendant Rothenberger is guilty under Counts two and three of the indictment.