Q. But you have-
A. Considering the position which Rothaug and Oeschey had in the Party, that was quite impossible. And Rothaug kept us under pressure and intimidated us to such an extent, as far as our personal opinion was concerned, that we soon came to see that all opposition was senseless.
Q. Did you ever discuss the matter with any colleague or anybody else?
A. Naturally, we associate judges discussed these matters.
Q. Did you ever discuss the matter with the president or the Oberpraesidant?
A. I, personally, did not, but I know that Mr. Ferber at various times called on the Oberlandes Gerichtspraesident and made representations to him on these matters. It was also known that the Oberlandes Gerichtspraesident had tried to have Rothaug transferred to the East, but at that last moment that was called off.
Q. In your affidavit, witness you refer to several other cases. May I recall them to your memory briefly? According to the affidavit, which is to be found in Document Book III-A, and is Exhibit No. 229, in the German Book on page 91 and the following pages, it concerns the cases of Mahr, Riegelbauer, Friedchen, Pirner and Schmidt. I believe I have quoted these cases correctly ?
A. Yes.
Q. I do not intend to question you on details, but I would, merely like to ask you whether you, apart from the facts which you wrote down here from your memory, whether you recollect any other facts concerning thee trial?
A. Yes, I do.
Q. In what case please?
A. At the moment, I can't think of an individual case.
Q. But I am only referring to these case.
A. There were so many cases that today the majority of those cases are mere names to me.
Q. Witness, I don't think you understood me correctly. I asked you whether concerning these cases which you mentioned in your affidavit, you can from your memory testify to other facts?
A. Well, I have looked at the list of those cases.
MR. WOOLEYHAN: May it please the Court, the question that was broached twice by defense counsel is so general as to prevent the eliciting of any sensible answer. I am not objecting at the moment, but I do suggest that counsel phrase the question with regard to a specific case and ask for some specific facts.
THE PRESIDENT: The objection will be sustained.
BY DR. D0OTZ3R:
Q. Witness, do you remember the "Pirner case?
A. Yes, I do.
Q. At the Pirner trial, the expert, Dr. Haur gave his professional opinion?
A. Yes.
Q. Do you remember with what that expert opinion concerned itself?
A. Yes. Pirner had committed some of his thefts before he was 18 years old, and some of these thefts he committed after he had completed his 18th year, and, therefore the question emerged whether concerning the offenses which were committed before he was 18, whether he could be fully responsible and whether he reached full maturity at that time. That was the point which was under discussion.
Q. Did you write that sentence?
A. Yes, I did.
Q. Did you write the sentence in such a way as making it correspond with the facts that emerged from the trial? Did it also correspond with the expert opinion?
A. In my view, yes, it did.
Q. Witness, we are now coming to discuss the general remarks which you made about the defendant Oeschey.
THE PRESIDENT: Surely, the general remarks that this witness has made about Oeschey have been repeated time and again. Now you say you're coming to that again. Surely there must be an end to that particular question which elicits the same answer. That end must come some time.
DR. DOETZER: Your Honor, I would ask you to permit me in this context once again to put a very serious question to the witness.
THE PRESIDENT: You are asking and you say you are coning now to the general demeanor, but that is something you have gone over again and again.
BY DR. DOETZER:
Q Witness, lately, as I have been informed, you had thorough discussion with the chief defense counsel of the defendant Oeschey. We have detailed notes about that discussion. These detail notes contain evaluations which do not correspond to the latter issue you have testified to today?
A. That is not correct.
DR. DOETZER: All right, that is enough for me.
MR. WOOLEYHAN: I request that the question and answer be stricken as being extremely prejudicial, and having been asked with that in mind.
THE PRESIDENT: The motion will be sustained.
DR. KOESSL: Dr. Koessl for the defendant Rothaug. May it please the Court, I would ask you to decide whether my cross examination concerning Exhibit No. 226, document NG-252, an affidavit of the witness against the defendant Rothaug, may be extended. May I extend my cross-examination as to that exhibit, or, whether the witness is to be summoned again for cross examination.
THE PRESIDENT: Let me inquire. Is that the same exhibit that Dr. Doetzer referred to a little while ago. I thought I heard him say 229. Is this the same defendant's exhibit?
DR. KOESSL: No, Your Honor, that is NG-250, an affidavit by the witness against the defendant Oeschey, which affidavit is a separate affidavit against the defendant Rothaug. The latter has been No. 252 - correction, 652.
THE PRESIDENT: Did you say 252 or 652?
DR. KOESSL:NG-652 and Exhibit No. 221.
JUDGE BRAND: You are now asking the privilege of cross examining only as to the affidavit of the witness, who is on the stand, aren't you?
DR. KOESSL: Yes.
JUDGE BRAND: You certainly do have the right to cross examine concerning the affidavit that this witness had made, if that affidavit has already been introduced in evidence.
DR. KOESSL: Yes.
MR. WOOLEYHAN: May it please the Court, I believe Dr. Koessl meant to ask, could he postpone his cross examination. I am not certain.
DR. KOESSL: I wanted to do as the Bench wish.
JUDGE BRAND: Inasmuch as the defendant Rothaug is in court, and this affidavit is already in evidence, you will be required to conduct your cross examination at this time.
BY DR. KOESSL:
Q Witness, what was the name of the Oberlandesgerichtspraesident who exercised on you the pressure to join the Party?
A That was at Darmstadt at that time, I was in my home down at Darmstadt, and it was Scritha, he was generally known as.
Q Spell that?
A S-C-R-I-T-H-A. Sofar as I know ho is in camp.
Q Witness, how do you explain the fact that with your political aspirations in Amberg you had established no name?
A I don't know that. I don't know how I had been assisted politically, and I never have seen any personal file. At any rate, it is not correct, as the Landesgerichtspraesident at Amberg told me himself that I should not have been offered that according to my whole manner and my temperament, and soforth, that I was not at all suitable for the work at the special court, and that the appointment had been made by passing him.
Q Did Rothaug talk to you about your transfer to the special court?
A Yes, he did, once, talk about it to me, but at that time my transfer had already become effective. The Landesgerichtspraesident for Amberg told me that I had been transferred to the special count, and showed me the order, that was the first thing I heard about the matter.
Q When did you for the first time make the acquaintance of the presiding judge of the court at the time?
A Sofar as I can remember a few days after I had received the order of my transfer.
Q Where was that?
A It was at the Station Hotel in Amberg, sofar as I can remember.
Q. Did you cooperate with the SD?
A No.
Q Did you use your Party membership for personal means or ends?
A No, and I don't know how I am to interprete your question.
Q what experience did you have to cause you to describe Rothaug as a man without character differently from Oeschey?
A He was considered generally not only by the assistant judges, but other jurists, that he was unpopular and hated, and also by the population, and even in the social circles he was generally repudiated, in many circles they repudiated him.
Q Witness, I want to know why you say that he has no other character?
A Because of his sadistic severity. We often talked about him, and we thought that he was a sadist who did not refrain from anything, and he for personal ambitions acted the way he did act.
Q Did you observe any action which justified the words, "no character"?
A Yes, in many cases he showed personal cowardice. I can mention this, he never went to a dentist. I can remember that an associate judge once told him to go to a dentist because that day he had been having a terrible toothache, but he said he preferred to have his teeth rot in his mouth, and, concerning women, and other things, marriage, religious matters, matters which were heard by others, as to them he expressed such opinions, so that I can not understand that such a man for years should have been the presiding judge of a court. In that respect I would like to treat him differently than the defendant Oeschey.
Q Witness, how did it happen that you entrusted such a man without a character with personal matters. Did you only now form your opinion of Rothaug's personal qualifications?
THE PRESIDENT: One moment, please, witness.
MR. WOOLEYHAN: May it please the Court, I was not aware the witness said in his testimony that he had entrusted Rothaug with personal matters. That was a statement of counsel.
THE PRESIDENT: The objection will be overruled.
BY DR. KOESSL:
Q You have had that view about Rothaug before, have you
A Yes.
Q Why did you entrust personal things to a man who had no character?
A That is entirely now to me. Naturally in all we discussed many things. I don't know what you are referring to at the moment.
Q Were you admonished once by the defendant Rothaug concerning your first wife?
A That means an intimate matter, and I don't think this has anything to do with the trial.
Q It does have something to do with the character of the witness.
A I don't see what is the purpose of such questions.
Q Witness, what makes you describe the defendant Rothaug as a high functionary of the SD?
A I did not know anything else he was with. He was at the RSHA - - he worked for the RSHA.
Q What personal observations did you make in that direction?
A I heard it from other associate judges who were better informed than I. Rothaug did not find it necessary to inform me about such matters. On the contrary, he always left me in the dark. He left me in the dark on such matters on purpose. I was the only one who knew nothing, who had no opinions, etc., in his view.
Q When did you hear for the first time about those functions of Rothaug in the SD?
A I don't know nowadays.
Q Was it while you cooperated with Rothaug?
A Yes, as far as I remember, it was.
Q Did you yourself observe anything?
A No, I did not. I have already said that.
Q According, to your observations, with what high functionaries did Rothaug keep up contact?
A He was in contact with the Gauleiter here or the Deputy Gauleiter. He was acquainted with Streicher. I can remember that he told me, or that he told us during a motor trip he had been invited to Streicher's or had quarrelled with him on his farm. He always mentioned that those persons--Gauleiters, etc.,--always provided him with directives. He was also very well acquainted with the Ortsgruppenleiter. I can not remember the name.
Q Do you mean Haberkern?
A Yes, that's right, who was going to the Blaue Traube, and thus I had to gain the impression--and it was no doubt the right impression-that Rothaug was always in contact with those people.
Q From your reply, I heard only of one meeting with Streicher. Is there anything I didn't hear?
A Yes, there are several things you overheard. I told you that he was always in contact with the Deputy Gauleiter Holz, also Oeschey.
Q What did that permanent contact mean? How often did you yourself observe such contacts?
A I naturally can not say that now, but at any rate, he very often talked about such things and said that he had called at the Gauleiter's office or that he had met this or the other person, and, above all, he conducted his trials accordingly. He asked the Amtsleiter to attend the session, for example, in Amberg. At that sensational trial he invited the Kreisleiter, and usually several other officials or Party leaders attended. In Nurnberg, too, he conducted such political trials. I can only remind you of the Grasser case, where the Gauleiter too, attended.
Q Just a moment. Have you a glossary of slogans on your table?
A No.
Q In what, witness, consisted the brutal manner of Rothaug concerning his collaborators?
A Like Oeschey, he did not allow anybody to have a different opinion. If an associate judge upheld a different opinion, he first of all tried to mock him by saying, "You know nothing; you have been here for only a very short time, and you can't judge matters," etc. He also played one associate judge against the other. If he did not like one opinion, he used to say to the other associate judge, "Well, look at him", etc.
Q Was that in connection with the fact that, as you yourself said today, you did not master the legal language?
A I didn't say that. I said only that I did not follow it closely in one case, and it has nothing to do with that. I say only that that mocking, contempuous manner in which he treated us -
Q Were those the unfair methods of which you speak in your affidavit?
A Not alone. He could also become very ruthless. If one did persist in one's opinion, he become rude and barked at us. I can remember one case. It was in Regensburg. I believe it was a malicious acts matter. It happened in the judges' room. I took the liberty to say to him that I could not understand that a state, and a strong state such as the Third Reich wanted to be, needed to use such guns, whereupon, in a brutal and excited manner, he interrupted me and for days complained to me about this incident, and it still surprises me that he did not report me to the higher authorities, as he did in a variety of cases concerning defense counsel, who, perhaps at a session, said something which he thought was inadmissible.
Q Which associate judge did suffer any disadvantage because he opposed Rothaug's opinion?
A What happened to the other associate judges or what did not happen to them, I can not tell. I don't know. I had the disadvantage that for two years I had to work at that court and had to suffer terrible psychological torture, and that was enough for me. I can not tell anybody the experiences I went through and the conflicts of my soul during that time.
Q Why did you not try to get a transfer on account of your heart disease? You did not have to me to the front because of your heart disease.
A The decree for the Reich Defense-
THE PRESIDENT: One moment, witness. You need not answer that question. Pure argument.
A I am quite prepared to.
THE PRESIDENT: The answer will be withdrawn from the consideration of the Tribunal.
A May I answer? There were two decrees.
MR. WOOLEYHAN: Dr. Gross, the Tribunal has stated that both the question and the answer will be stricken from the record.
BY DR. KOESSL:
Q You say here writing that in the reports on the sessions certain paragraphs were marked with red exclamation marks.
A Yes.
Q What was the purpose of those marks?
AAll those cases were marked with red exclamation marks for which the death sentence was to pronounced. I consider that in itself to be a prejudice on the part of Rothaug.
It was a custom which Oeschey continued, and that prejudice was always expressed at the sessions.
Q Just a minute, witness. Please answer my question clearly. We shall discuss other matters later.
A Well, then, would you ask that question again, please?
Q What to was the purpose of marking things with a red exclamation mark?
A Possibly the purpose was to see to it that defense counsel was appointed in time, but I always considered it very peculiar that it should be stated before hand on whom the death sentence was to be pronounced. Such a custom was one which I was not used to from my previous activity.
Q Did other gentlemen make entries in the diary, or did only Rothaug make these entries?
A I have already told you that Oeschey continued that custom. Whether other gentlemen, too, made entries in the diary?
Q Yes, that's right.
A Rothaug was responsible for it. He introduced it.
Q In your view, is the appointment of a defense counsel by the court--does that expresss any commitment concerning the sentence?
A No, by no means, but in connection with other matters, it became only too evident that Rothaug from the very beginning--and thereby the court too--had committed themselves. One need only remember his behavior during the sessions, or the way he conducted the political trials. I am thinking of the Grasser case.
Q Was the courtroom fully occupied at the Crasser case?
A How crowded the courtroom was, I can not remember today, but I do know that the Gauleiter and a number of other Amtsleiters and Party people were there. It is interesting--I have only seen it recently during my interrogations from the files--that Rothaug two days before the trial caused that politically sensational trial. The Grasser case originally was to be held in Room 150. Two days before the trial he suddenly changed it and ordered that the trial was to be held in Room 600.
He appointed defense counsel, an official defense counsel, and invited the Amtsleiter to attend the session.
Then, during the trial he left no doubt as to what he intended to do in the Grasser case and thereby he tied us hand and feet. The other associate judge was Mr. Ferber. I can recall very well how in hours of discussions we opposed the death Sentence.
Q. Witness, here you write that you made it your task to change Rothaug's view in individual cases.
A. Yes.
Q. Had you voted against the sentence on Grasser?
A. Yes, naturally; Mr. Ferber did too.
Q. Did Mr. Ferber vote against the sentence?
A. Yes, I can remember that too.
Q. Did , in the Grasser case, the defendant Rothaug announce the sentence although the two associate judges had voted against it -- had voted non-guilty?
A. In effect he did.
Q. What do you mean, "in effect?"
A. In the last resort there was nothing left to us, but to write our name on that shameful sentence. After the senior -
Q. Witness, please don't interrupt me until I finish.
A. After the senior prosecutor 0berstaatsannalt too had given way and followed Rothaug's wishes, we little associate judges, we were nothing; we were helpless; we could do nothing naturally.
Q. Today, twice you testified under oath that Rothaug announced a sentence, a verdict of guilty, although two of the associate judges had voted against it.
A. I did not say that; I said that in the last resort we had to decide to affix our signature, otherwise something else would have happened to us since the Gau leaders, etc., the gentlemen who wore sitting there, could not expect any other verdict. It would have been evident if we had not signed it; it would have been obvious who would have brought about the other verdict. In the Grasser case I further more should like to say that the Grasser case was my second session which I experienced at the court.
Q. But as a judge, you had been working as a judge for sometime, hadn't you?
A. Yes, but not that kind of activity. Such things I had never witnessed before as a judge.
Q. Had you previously been at Mainz?
A. Yes, Mainz, Amberg and Darmstadt. At those courts decent methods were being used; methods which are worthy of a court and of a judge. Perhaps the associate judges Were different at those courts.
Q. But in the Grasser case you were certain that the president of the Oberlandesgericht, the District Court of Appeal, too had a view which was similar to your own?
A. But even Mr. Ferber could do nothing else but finally to give way to Rothaug's will; after many hesitations he directed the prosecution, well then in God's name to demand that sentence, so that outsiders would notice that the prosecution demanded a different sentence from the sentence which the judge desired.
Q. Under what provisions, what law did you in the Grasser case wish to phrase the sentence?
A. The Grasser case was a malicious acts case; the Ministry itself had taken that view when the People's Court had dealt with the case, and there were extenuating circumstances, and it had been transferred.
Q. Did this case immediately reach the Special Court from the People's Court?
A. I don't remember, but I believe so.
Q. According to your memory, did Mr. Doebig wish to consider the matter, to treat it in the same way as a malicious acts case?
A. I assumed so.
Q. Do you say so, or do you know it?
A. No, I don't know it.
Q. If you don't know it -
A. In that case he could have assumed extenuating circumstances, but Rothaug was out to set an example before the Gauleitung. In In my view that was the reason, for if he had judged it differently, he would have suffered a tremendous defeat after he had gotten all these gentlemen to attend.
Q. How did it happen that the Gauleitung was interested in the Grasser case?
A. I can't tell you.
Q. Do you know anything about Grasser's relations and his contacts?
A. I know nothing about his relations. Concerning the voting, that has a significance in the Grosser case, and I would like to say that Rothaug told us that he upheld the Fuehrer's principles ever during the deliberations, and that, if necessary, he would uphold his view in the face of opposition from the two associate judges.
Q. But that case never arose, as you said; am I right?
A. Well, that amounts to the same whether one takes the risk; if one had displayed opposition, it would have meant a fight against the whole regime, for he was a political fanatic of the first order.
A. Now, you say you had received instructions from Rothaug; of what nature were those instructions?
A. In what connection did I say that?
Q. You say here Dr. Rothaug expressed to his collaborators that the instructions issued to us committed us and were binding for us.
A. Yes .
Q. In what spheres did he issue such instructions to you?
A. This is only an example; he told us that in Polish cases, in trials against Poles, we should act with ruthless severity; that it was for the best interest of the state; and that it was in accordance with his directives; that it was sufficient if a Pole had simply lifted his hand against his master, that that was enough to sentence him to death. That policy was continued by Oeschey; that is how one can explain the Kaminska case.
Q. Did Rothaug pass any sentences, with his associate judge, where a Pole had done nothing but lift his hand?
A. Well, unfortunately I cannot quote a definite case just now. I remember one single Polish case from Rothaug's days. A Pole had pushed a nail into the hoof of a cow, and the cow had to be killed, slaughtered.
Q. Just a moment -
A. And the Pole was sentenced to death.
Q. I only asked you following your statement whether in the case of such a small offense, of only lifting the hand, whether a Pole was sentenced to death on the strength of that.
A. He told us again and again that any insubordination, however minor, in the case of a Pole is enough to call for the most severe reaction on the part of the state that is the pure truth and everybody will confirm that that is how it was there.
Q. Do you know the law against Poles -- concerning Poles?
A. Yes, I do.
Q. The Polish cases which you know, did they deserve the death sentence under the law concerning Poles, if other legal provisions did not justify the death sentence?
A. I did witness Polish cases where Poles were sentenced to death because of an offense or crime which in my view did not merit the death sentence; but with my bad memory I cannot unfortunately quote individual cases today.
Q. Can you remember cases where Poles were acquitted?
A. No . I can only remember one single case where a Pole had committed a crime which really did merit the death sentence; that was a murder case; one Pole had been murdered by another, and he was quite rightly sentenced to death. I think his name was Wasniak, or something like that; I don't remember the mane exactly; but it is a fact that I was particularly excited about these Polish cases, about the treatment of cases, and I was glad when the Polish cases were transferred to the Police and we no longer had to deal with them.
Q. You said, however, that the directives by which Rothaug judged were also upheld by the Ministry of Justice.
A. In part, yes, but these directives he read out to us all the time, they were quoted to us at trials, when at all cases he put on his do-called record, we called them records; what they were was political instructions which were destined for the population and also for us insofar as they could be connected with the case in question.
Therefore, his trials were considered sensational cases show cases.
Q Under the penal code of procedure, was it allowed to include the reasons for the sentences, any part which had not come up at the trial?
A No, but I should like to say this about that: Rothaug held the view and explained it to us repeatedly that for him there were three types of reasons as to how penal cases were to be treated: Firstly, reasons which had shown up at the interrogation; secondly, the true political reasons which had been laid down in writing; and, thirdly, the reasons which had been laid down in writing and what had been heard from the Ministry of Justice on the case.
Q Were not all the files submitted to the Ministry, and, therefore, also the written copy of the sentence?
A I have just said the reasons which were laid down in writing were destined for the Ministry of Justice, but they did not contain his real reasons, though they were really decisive for him.
Q Did not the reasons for the verdict which had been laid down in writing, did they not have to fully justify the sentence such as it was pronounced?
A Yes, but I am only telling you what Rothaug said to us; that to him there were three types of reasons.
Q In the case of Klinglein and Schaller, you said here that the medical export did consider the defendants fully responsible, but had advised a more lenient judgment?
A Yes.
Q Under German law how far does the testimony of the medical expert go?
A In my view, that is quite correct, it was the right of the expert in this meaning, it was the right of the export to write his opinion in that way; that is the reason one calls in an expert, but for Rothaug, the opinion of the export was in no way decisive.
Q Just a minute witness, if a defendant is fully responsible, can the export in that case make recommendations?
A Of course he can. In my view that is a legal question.
Q If it is a legal question , then, tho export was not competent here?
Q I have just given you my opinion on that. In any case, it is certain that Rothaug, concerning the fact that a defendant was not fully responsible, he took that as a particular reason for acting with great severity against him because he said the inferior persons must be exterminated, and that perhaps on account of his particular disease, he may become a danger upon the community.
Q But, that was also a view the Ministry of Justice upheld, was it not?
A Yes, that is correct; but in every case it was different, and every case had to be judged in a different manner. It, by no means, justified the rule of severity in every case as Rothaug did. It was not for nothing that the entire population of Upper Palatinate hated him, and that he was notorious there.
Q Were the other judges of the Special Court not hated?
A I do not know.
Q In the Horn case -
THE PRESIDENT: (Interposing) That question is improper, and it is objected to, and the objection will be sustained, and the question will be withdrawn, we are not trying other judges here.