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.
me how the SD was organized at Gau level?
AAt Gau level principally every Gau had. an SD Department. That, according to the Gau level, was the SD Abschnitt, and the extent of this SD District was usually the same as that of the Gau.
Q In these SD organizations which were attached to each Gau, how were they organized? Were there departments in each SD organization within each Gau, and if so, what were these departments?
A In the SD Districts there were departments or Referendar, as we called them. Essentially there were four. III was the designation of the SD office in general. III-A, law and administration; III-B, Volkstum and Public Health; III-C, Cultural fields, including education, and III-D, economy.
Q When you were assigned to the Gau here in Nurnberg for the SD. to which one of these four departments were you assigned?
A I was assigned to the department for law and administration.
Q And what was your position in that department?
A I was in charge of it. That is to say, for quite some time there was only one man in it, really. There was only one person.
Q Can you tell me in general -- I will later ask you some specific questions, but now tell me in general what your duties were as head of the law and administration of the SD in the Franconia Gau.
A The SD as home information service, in cur case through the RSHA, had to inform about all developments in various fields of German life. I personally had to report about all developments in the field of law and administration, positive and negative developments which occurred in that field of law and administration, to investigate and to report abort them.
Q Being assigned to the law and administration section did you confer with the defendant Rothaug in connection with your official duties?
A Yes. On the basis of an instruction received from the inspector of the Security Police and SD at Munich, who was our adminis trative superior, from an instruction through him we had to take up in connection with the Special Courts, that is to say, to the prosecution of the Special Courts in order to inform the inspector, and in the last event, the RSHA, about the pending criminal cases, that is to say, the activity of the Special Courts.
In the course of this instruction, this action, it came to a conference of my chief with the President of the District Court of Appeals, and in the course of that conference Doebig, the President of Are District Court of Appeals, stated that he was not competent for any agreement that had to be passed here because the Prosecution, the office of the Prosecution, was above the Prosecutor. For that reason on the same day, practically at the same hour, during the same hour, a conference was brought about with the General Prosecutor, Dr. Bens. On that occasion the presiding judge of the Special Court, Rothaug, was present. Bens justified that by saying that the first hand information about pending cases before the Special Court, pending criminal cases before the Special Court, could best be obtained from the presiding judge himself, because it was he who was in charge of scheduling the cases and therefore could give the best information, and for that reason Rothaug was drawn into that conference. The oral agreement came about to the effect that from time to time if my superior office was interested, I should get the appropriate information from Mr. Rothaug.
Q In connection with this series of conferences when did you first see Rothaug?
A Well, the conference in question, you mean?
Q No. As I understood the answer to the previous question, after you had seen Doebig and Bens, you were finally told that you would confer in connection with your official duties with Rothaug. When then did you have your first conference with Rothaug concerning your official duties?
A The first short conference took place immediately after that conference with Bens and Doebig the same day in Rothaug's office. On that occasion, Rothaug stated that he was quite ready to work together with the SD, as far as information was concerned.
Q And thereafter, did you see him at regular intervals, and if so, how often did you see him?
AAt that time, an agreement was reached between Rothaug and myself that principally I should come into his office every Saturday and there he would inform me about matters which in his opinion were interesting for me -criminal cases-- and give me all the information. On that occasion, we would be able to discuss any other legal questions of interest that actually took place; and particularly during the first half year I met Rothaug pretty regularly on Saturdays.
Q Now after these Saturday conferences with Rothaug, did you make a report on what was said to your superiors?
A I sent reports to the RSHA about everything in the way of information which I received from Rothaug.
Q And these reports which you sent to the RSHA. went first to your superior located in Nurnberg, and then so far as you know, up to Berlin and possibly even to the head of the SS? Is that right?
A It really occurred that way, that whatever Rothaug considered important he expressed himself.
I took stenographic notes and I had them transcribed at my office, and on the basis of these informations, I wrote my report to Berlin - of course, without any opinion on my part and without making essential changes which would not have been within my duties.
Q In these conferences with Rothaug, which occurred family regularly every Saturday morning, can you tell the court in general what was discussed? Later on I want to ask you several specific questions, but now, if you will, please tell us in general what Rothaug discussed on these occasions with you?
A Mostly the information which he gave me was in a form of instructions about developments of criminality which he explained with examples of individual cases. He informed me, for instance, that mail robberies or blackout crimes were increasing and that they constituted most of the criminal cases at that time. Then he explained to me in what manner criminal procedure had to be developed in order to present effective measures against that undesirable development of criminality and to manifest that in the way of jurisdiction. On that occasion, of course, individual cases were also discussed. In addition to that, he also mentioned matters of legal, political development; also in the field of substantive law, matters which came to his attention in the course of these proceedings -- sometimes in the form of short dictation or of handwritten slips which he prepared. It was not only that the current cases were explained to show the development in criminality but also anything that occurred in the field of law and had to be corrected by higher offices, be it that it needed a negative or positive decision, that he wanted to have written down and reported to higher offices.
Rothaug knew, I take it, that these notes and reports which he handed to you were passed on by you in line with your official duty --passed on to higher authorities in the RSHA and in the SS?
A That he knew, for certain, and in my opinion that was what he wanted. It could be seen from remarks to the effect that such matters had to be reported to higher offices so that from these higher offices appropriate counter-measures could be taken.
Q Did Rothaug discuss in these conferences with you the sentences he expected to give in cases that were to be heard in his court in the near future?
A Yes, the proceedings in the next period of time, sooner or later were to be tried-- as far as they were important, were discussed partly on the basis of the files, partly on the basis of his knowledge of the fileshe gave me a short explanation of the facts and also his opinion about the legal procedure--the legal dealing with the cases, as far as the application of the facts were concerned in consideration of the sentence to be expected.
Q that in general was Rothaug's attitude, so far as he reported it to you, on the interpretation of criminal law?
A Rothaug in principle was of the opinion that particular ly in times of war, on account of a certain laxity of security measures-- be it due to shortage of personnel or other things--criminality would increase; that not only an increase of serious criminal cases would occur, but also of so-called political criminality; and that the activity of the Special Courts should be conducted in such a manner that an increase of serious criminality of that kind should be forestalled; that any attempt against the State in a political, criminal or other manner would have to be wiped out by severe penalties.
Q Can you tell us what Rothaug's apparent attitude was towards foreigners, especially Poles, so far as the application of criminal law to them was concerned?
A In my opinion, Rothaug's position was that particular ly toward foreigners-- Poles and others-- any amount of clemency should not be applied; that especially these elements had to be met with severe measures in order to assure that attempts which would be made to counteract the successes of the Armed Forces should be choked off at the outset. It may be that he would have used more clemency towards German criminals than to foreigners.
Q Can you tell us whether you are familiar with the decrees against Poles and Jews that was promulgated in 1941?
A Yes, that is a concept for me.
Q You're in general familiar with the provisions of this decree, are you not?
A Well, in detail--of course, today I couldn't say-but in general, yes.
Q What was Rothaug's attitude toward Poles and Jews prior to the time that this decree was promulgated so far as you know from the conversations that you had with him and from the reports that you passed on from him?
A I believe that it was clear to Rothaug that here, if I may say so, there was a gap in the law; that that gap should be bridged; but that a judge with the right political attitude should be in a position, in spite of this gap, to sentence accordingly. He found the juridical way to pronounce the sentences which he considered appropriate.
In other words, would you say that Rothaug achieved, without a decree, and prior to the time that it was promulgated, the same legal effect that later could be achieved under it?
A That is correct, beyond doubt. As special court judge in Nurnberg, he achieved the same success. I should only think that perhaps measured against conditions all throughout the Reich, he thought that a formulation of these principles was needed.
Q Is it your feeling that Rothaug's outspoken comments on the need for such a decree, as was later formulated, was influential in the final promulgation of that decree?
A Nell, as far as the various things are concerned that finally led to the decree, I am not well informed about that; but that Rothaug's information may have contributed, that I believe.
Q In any event, prior to the time that that decreed was formulated in 1941, you had set up in line with your official duty many of Rothaug's comments on what the law, or what the situation lacked at that time?
A That was certainly the case.
Q In discussing the case with Rothaug in this Saturday morning conference do you recall any particular case to which Rothaug referred?
A You mean in a particular category of a criminal act?
Q No, I did not refer to that. Perhaps my question was not clear. I meant in spectacular cases which were to be tried by Rothaug, or other judges in his court, In other words, did you discuss, or did he discuss with you the more spectacular cases at any time?
A Yes, he did. I remember, for instance, the case of the Dachau criminal, I think it was Poelmann.
Q One moment. I did not get that name.
A Poelmann. P-(umlaut)-O-L--M-A-N--N, two Nos. That man Poelmann, if I remember correctly, had taken a large quantity of lard front a barn in Furth, I believe at night. There may have been several hundred liters and also other things. If I remember correctly, Poelmann was sentenced to death by Rothaug. The verdict or sentence in my opinion was not executed, but through a pardon was commuted into a long prison term, I think eight years in the penitentiary. Rothaug talked to me at that time about that pardon, which technically reduced the death sentence, which in Rothaug's opinion was a correct sentence, to a prison term.
Q Do you remember any other cases that you discussed with Rothaug?
A Yes, one speaking of a typical case, the case of Katzenberger. That case Rothaug and I discussed also once, but I believe it was where a sentence had been passed at that time, and I expressed my opinion that on the basis of information I had received, and also on the basis of opinion on what was known of the criminal, that the facts of their sexual relationship was not an accomplished fact, because the law inso far as I knew required the act of sexual relation between a German and a party of non-aryan descent.
DR. KOESSL: May it please the Tribunal, I object against the examination, I object to the examination in this manner, because the opinion which is stated by the witness, the legal opinion which is stated by the witness shows that he is not an expert, and furthermore, he has not been called as an expert witness.
THE PRESIDENT: We see nothing in the answer in the nature of which shows anything other than he was just stating a conversation, the way we get it.
THE WITNESS: I do not in any way wish to give an expert opinionhere. I only wanted to explain why I came to speak about the case of Katzenberger, because I was asked whether he spoke of any other case, and particularly this case is one which was mentioned as the case of Katzenberger. Therefore, may I continue in my opinion. At the time the facts were not complete, because it was not proved so far as I know that the German woman was doing nothing more according to the proof other than that she was sitting on his lap, and, Rothaug, I remember that quite clearly here, said that one had to take the human facts into consideration, and could hardly expect that a man of that kind, he meant the man Katzenberger, would act otherwise, that nothing had happened once the girl had been sitting on his lap, and, that, therefore that consequently he considered the proof as given.
BY MR. KING:
Q Now may I for a brief moment digress to another subject. In your position with the SD you undoubtedly had an opportunity to observe the political influence that various people with whom you came in contact wielded?
A Yes.
Q What do you know about Rothaug's influence with the Party men who ran the Gau Franconia. What are your impressions?
A Rothaug had some close connections to the Gauinspector Haberkern. Haberkern as our inspector could gain an insight in all matters going on in the Gau, and in my opinion for a discussion of such matters, particularly in the legal field, he took the advice of Rothaug, so that, since the Gauleiter depended on Haberkern, Rothaug suddenly could have his opinion go to the Gauleiter on legal matters.