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THE PRESIDENT: The answer will be withdrawn from the consideration of the Tribunal.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.
Q. In the Horn case you stated that Rothaug deprived you of making your own decision, because he put forward a basic demand -
A (Interposing) What case are you speaking of?
Q The Horn case, the theft of field post letters. How could the statement of an opinion entail the curtailment of the will to make a decision?
A I have already told you that Rothaug, if he did not like it, would not tolerate the only case of that type. He simply told us that the leadership of the State does he have certain requirements, and he said that he had received his directives from the highest political authority, and that one could not deviate from those directives, and we had to adhere to those directives. He had to know what he was about.
Q In what individual case did Rothaug invoke a political directive?
A He did that in general.
Q In general?
A Yes, in general. I can only remind you of the trials of the Polish cases.
Q Are you not confusing the law with political directives?
A No, I am not confusing those two things.
Q In what way did Rothaug's directives and opinions differ from the jurisdiction of the highest court? Can you answer that question?
A I told you before that every case varied did I not. One can not generalize in this way, but it was not necessary in the way in which ho did - it was the ex exaggerated ruthlessness and severity he used.
It was not necessary to approve that severity in one case. The Horn case was only one example.
Q The basic attitude of Rothaug, did it deviate from the jurisdiction of the highest court or not?
MR. WOOLEYHAN: Your Honors, I, for one, do not understand the question, and I inquire whether or not the witness docs. Could the Defense Counsel be asked to define what he means by "jurisdiction"? Jurisdiction is a word of many meanings.
THE PRESIDENT: If I understood the question correctly, ho is inquiring whether or not he was required to follow the precedence of the Supreme Court, and my understanding is that he was not required to follow the precedence.
MR. WOOLEYHAN: Does the Defense Counsel define jurisdiction as precedence in this question?
DR. KOESEL: No, Your Honor. I wanted to get the witness to say whether the higher German court treated cases of that type in the same manner as Rothaug and the Special Court?
THE WITNESS: The Supreme Reich Court, it is correct, also pronounced and demanded severe sentences, but I am of the opinion that Rothaug went beyond that.
MR. WOOLEYHAN: May it please the Court, I object to this entire line of questioning because they are so general as to avail us of no profit. The questions should be specific, and if not, we will object to them.
THE PRESIDENT: He has answered that question, but it does seem that there is a discussion of legal propositions, and, therefore, not the proper subject matter of inquiry, unless it is some law in dispute, as to the interpretation of a law or some difference of opinion about procedure.
It docs not appear that any of those things appear in those questions.
DR. KOESSL: May it please the Court, the witness is making it appear like that - is making it appear that Rothaug had received political directives which were different from those described by law.
THE WITNESS: I did not say that.
DR. KOESSL: Do not interrupt my statement. The witness is saying now that the directives were identical with the law, then I shall be satisfied.
Q Witness, you have already mentioned that before the trials -
MR. WOOLEYHAN: (Interposing) May we please have that last statement cleared up. I believe that last statement of the Defense Counsel was a question. Let us have it answered.
THE PRESIDENT: I do not think it was a question; he said if the answer was the same he was satisfied.
MR. WOOLEYHAN: The question now is: Was it or was it not.
DR. KOESSL: The question has been answered.
MR. WOOLEYHAN: Roll, for my own information, what was the answer?
DR. KOESSL: That the directives which Rothaug followed were identical with the law.
THE WITNESS: I did not say that.
DR. KOESSL: Please tell us then.
THE WITNESS: The law concerning Poles, for example, did provide very heavy punishment for offenses committed by Poles, but that did not mean that a Polo if ho had made a minor resistances, or perhaps he lifted his hand against the farmer, that ho should therefore for that be sentenced to death.
That must have been a directive that Rothaug had because that is how he passed it on to us.
THE PRESIDENT: We will take our usual recess at this time.
(Thereupon a recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. KOESSL (Counsel for the defendant Rothaug):
I ask to be permitted to continue and to conclude my crossexamination with a few questions.
BY DR. DOESSL:
Q. Witness, from the fact that before the main trial at times you did not read the files you want to conclude that Rothaug did not want to inform you about that which was in the files?
A. In a certain sense, yes. He liked it if we knew as little as possible. His intention was to experience as little resistance as possible on our part. That was the reason why the sessions, as far as the appointment of associate judges was concerned, were definitely set by him, and it was very bad for any associate judge who tried to change that kind of disposition. He assigned the associate judges -especially if it was a case in which he wanted a severe judgment --he assigned those associate judges from whom he expected the least resistance. He knew about one or the other that he could expect more resistance from him, and that was is basic principle. I am convinced of that.
Q. On the basis of the affidavit, all the associates were, so to speak, numbers of a resistance movement against Rothaug.
A. No, I didn't say that.
Q. But, witness, wan it possible that anything could be made the basis of the judgment that had not been discussed in the main trials!
A that could not be, but it was still of great importance whether the associate judges know the contents of the files or did not know that. Also, in connection with the possibility of putting questions, which was not customary at the Special Court Nurnberg, that also he did not like and did not tolerate, that an associate judge independently asked questions.
Q. Do you mean, for instance, questions by the associate judges to the defendants?
A. To the defendants or to the witnesses, yes. From the outset he was prejudiced. That is not only shown by the exclamation point in the schedule, but also by other things. He proved his being prejudiced during the trial also by stating to the defendant, for instance, that in his opinion it was a case punishable by death: "No put your head before your feet", or, "Whether you live or not does not matter to us, the main thing is that we win the war", and similar statements.
Q. According to German law, did an associate judge have the right to put questions to the witness, or to the defendant?
A. I consider this question very superficial. At least, there was the possibility of having the questions put by the presiding judge, but he did not listen to that either. He never listened to us.
Q. One moment, witness. Did an associate judge of a court of that kind, according to German law, have the right to put questions to the defendant during the hearing?
A. At least he had the right to have questions put through the presiding judge. I know that it was customary in many courts that with the permission of the presiding judge, associate judges also, after they had received the permission of the presiding judge, could not questions to the defendants and the witnesses. That was always customary, but at this Special Court it was not; that is, the Special Court at Nurnberg.
Q. I asked you about the contents of the regulations, but it . appears that you don't know them.
A. I ask you not to put legal questions of this kind to me.
Q. I believe you were an associate judge.
Witness, one last question. Are you de-Nazified?
A. What does that have to do with it? My case is sending.
I want to give one more answer, that is to say, with the per-mission of the Tribunal. I was asked, by the defense counsel, why I stated that the defendant Rothaug had no character. To that I want to add something.
I thought also that it proved he had no character from the way he acted to his assistants, friendly when he talked to them, and behind the backs of individuals he spoke against them very furiously. I could give examples for that. He also spoke badly about the President of the District Court of Appeals, whereas when he spoke to him he was very friendly. That is what I consider a man without character, among other things.
Q. And how was he to the associate judges?
A. Yes, I have also experienced examples of that. Once we were away on a trip by car, and something was wrong with the car. The war had to be repaired, and my colleague tried it put and was away for some time. Rothaug get very excited about it and started to complain about Pfaff time and again. When Pfaff came back he was as pleasant to him on could be. Such things happened frequently.
MR. WOOLEYHAN: There is no redirect examination, Your Honor. We ask that the witness be excused.
THE PRESIDENT: First I will inquire whether any other defense counsel desires further cross-examination of this witness.
(No response)
Apparently not. You say you have no redirect?
MR. WOOLEYHAN: No, we have not, Your Honor.
THE PRESIDENT: The witness may be excused.
(Witness excused)
DR. BEHLING: May it please the Tribunal, I have been asked, on the part of the defense, to put to the High Tribunal the request that the session of tomorrow should not take place, in consideration of the fact that it is the 1st of May. Therefore, I ask the Tribunal to kindly decide and to make its decision known.
THE PRESIDENT: A decision on that matter will be announced before we adjourn this evening.
MR. KING: The prosecution calls at this time the witness Friedrich Elkar, who will testify in the German language.
Prior to the taking of the stand of the witness Elkar. I would like to offer in evidence the document NG--911, which will be Exhibit 411. In the event the Bench or the translators have not received copies of this document. I have extras both in English and in German.
We ofter the document NG-911, as Exhibit 411.
THE PRESIDENT: To which document should this be attached?
MR. KING: Your Honor, that will be included in document book IX-B, when it is circulated.
THE PRESIDENT: Do you care to comment or read from this exhibit?
MR. KING: No.
THE PRESIDENT: Are you introducing it?
MR. KING: We are introducing it.
THE PRESIDENT: It may be received in evidence.
FRIEDRICH ELKAR, a witness, took the stand and testified as follows:
JUDGE BRAND: Let the witness raise his right hand and be sworn. You will repeat me the following oath:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothings (The witness repeated the oath.)
JUDGE BRAND: You may be seated.
DIRECT EXAMINATION BY MR. KING:
Q Will you please state your name?
A EKLAR
Q Will you tell us briefly what your educational background and training has been?
A I was born in July, 1911, in Altenberg, a son of the couple Elkar. Then for four years I went to elementary school, and I went to the Oberrealschule, Fuerth, and there in the year 1931 I made my final examination. Then I studied for four terms eachaat the Universities of Erlangen and Munich. In the year 1935 I made the first state examination, the so-called Refrendar Examination. Then for about three years I was at the Nurnberg--Fuerth court as a legal clerk in the administration for Training. Then in July, 1939, I made the second state examination, that is, the Assessor examination, at Munich. Thereafter, for a short time, I worked for a Nurnberg lawyer.
Then, due to war time conditions, I was unemployed for a while. In October I was taken into the Security Service at Nurnberg. That was on 16 October 1939. There at the SD I was during the entire war. In 1945 after the collapse I worked for some time as an agricultural worker.
Q after you had passed your first state examination and prior to the time that you had taken your second examination were you at any time assigned, while you were in Nuremberg, to the defendant Rothaug?
A Yes, First I had two cases when I was appointed defense counsel before the Special Court, and that is where I had met Rothaug. And then for two months I was there as a legal clerk, that is, for my legal training. That was at the end of my legal training period in February or March, 1939.
Q You said that in October of 1939 you became a member of the SD.
A Yes, on 16 October 1939.
Q Before I put several questions to you concerning your activities with the SD, will you explain briefly the relationship between the SD, the RSHA or the Security Service, and the SS.
A Relations between the RSHA and the SS -- well, the Security Service, SD, belonged to the Amt III of the RSHA. That was the Central Office of the SD at Berlin. A large number of members of the SD, employees of the SD, had been taken into the General SS. To the extent a rather loose connection existed between the SS and the SD. In particular, the Supreme Chief of the RSHA, who was first Heydrich and after his death. Kaltenbrunner, whereas the Chief of the SD who was under Heydrich and Kaltenbrunner was Olendorff.