AFTERNOON SESSION (The Tribunal reconvened at 1330 hours, 17 July 1947.)
THE MARSHAL: The Tribunal is again in session.
MR. LA FOLLETTE: May it please the Court, I have an affidavit which I would like to read to the Court. I send three copies of the English to the Bench, one to the German interpreter and please deliver this to Dr. Marx. I should like to read the affidavit and then make a very short statement, if the court will permit me.
"I, Dr. Wilhelm Gerstacker, Senior Doctor, Nurnberg Kirchenweg 50, declare herewith under oath:
I was born on 10 December 1907 in Kempton, Schwaben. Since April 1, 1946 I have been working at the Psychiatric clinic of the Nurnberg city Hospital. On the evening of June 27, 1947 I was informed by Dr. Kraetzer of the court decision of Military Tribunal III, by which the defendant Karl Engert was to be psychoanalyzed by me. I was informed by Dr. Kraetzer at the same time, that according to the statements of the defense counsel for Engert, Dr. Hans Marx, the court would like to receive the report by June 26, 1947, the following day. Inasmuch as I had been named to the Court a.s psychiatric expert for the Defense Counsel, without having been asked before, I expressed to Dr. Kraetzer my amazement about this. On the following day Dr. Marx appeared in my office, and told me that he had gained the impression that the Americans, with the help of medical experts, would like to drop the case Engert. I told him at that time, that the court would have other possibilities to handle the case as they saw fit, and that I could only express the medical facts objectively. I considered the remarks of the Defense Counsel as an unusual attempt to influence my medical activity. I wrote an expert opinion and on June 30, 1947, turned it over to the Assistant Doctor Stern, for transmittal to the competent offices. About a. week later a questionaire of the court consisting of three questions was submitted to me by Dr. Kraetzer to be answered by YES or NO.
The questionnaire consisted of two pages. On the first page the questions were formulated, while the second page was reserved for my signature as well as for the signature of an official of the Secretary General. I answered all questions with YES and signed the document. A few days later, a secretary of Dr. Marx come carrying the second signed page of the questionnaire, as well as a new blank first page. She informed me that she was being sent by Dr. Marx to offer me the opportunity to fill out the questionnaire once more. She said in so many words that Dr. Marx had been cited before the court and had been reproached in a sever manner, because the expert opinions of the German doctors did not correspond with that of the Americans, and that the court in substance had queried whether or not it would be possible to change my expert opinion. Furthermore, she told me that it would look rather peculiar if the German doctors were stricter than the Americans. She told me expressly that this was the opinion of Dr. Marx. In camouflaged expressions she attempted to intimidate me and to alter my opinion. 7. told her, however, that I would not change my expert opinion overnight, and furthermore, that I considered the separation of pages of a document, after it had been signed, an unheard-of behavior if not even an illegal act. She then was visibly at a loss for words, and tried to exculpate herself by blaming others for the act. I filled out the first page again the same way in the affirmative. I consider the whole behavior of Dr. Marx in this case shameless from a personal angle, and legally objectionable. I have the impression that Dr. Marx tried to obtain from me, through forced haste, an export opinion of his choice, which would not have been in agreement with my objectivity as a doctor.
"These statements are true and were given without any duress. I have read them, signed them and declared them under oath."
Nuremberg 16 July 1947 /s/ Dr. Wilhelm Gerstacker /t/ Dr. Wilhelm Gerstacker Senior Doctor at the City Hospital Nuremberg Signed and sworn to:
Nuremberg 16 July 1947 /s/ Henry Einstein Henry Einstein, OCCWC U.S. Civilian B-316209 Research Analyst If Your Honors please, the position of the prosecution is that we ask no action upon the basis of this affidavit alone.
We assume the Court will certainly wish to have the affiant present.
However, I consider the affidavit at least primary evidence of the fact that actions have been taken by Dr. Marx which I must bring to the attention of the Tribunal.
I further want to say, although I don't think it is necessary, that no member of the Prosecution staff has ever seen any doctor, American or German, in connection with this matter, either before or after they were appointed. I now leave the matter to the consideration of the Tribunal.
THE PRESIDENT: The Tribunal does not care to hear from Dr. Marx at this time. The Tribunal will examine the affidavit more carefully, will determine whether or not it forms the basis for a citation for contempt of court, and, if so, against whom. If it be considered a proper basis for further proceedings by the Tribunal Counsel Marx will be advised of that fact and will be given the opportunity, which this Tribunal extends to all persons, to present a fair defense such as he may have.
DR. MARX: Excuse me, Mr. President -
THE PRESIDENT: I don't care to hear from you at this time, sir. You may be seated.
DR. MARX: I only wanted to correct some absolute mistakes from the very beginning.
THE PRESIDENT: I will not hear you at this time. You may be seated. You will be given opportunity to defend or to make a statement at a later time.
We have one other matter for the consideration of counsel and this may be an appropriate time to consider it. The circumstance which requires these comments is the fact that we have been advised, as I think some of the defense counsel have also been advised, of the extreme congestion in the translation department. That condition apparently is a serious one and it might quite seriously interfere with the orderly presentation of the various cases of the defendants.
In order to make that difficulty as small as possible the Tribunal wishes to call attention to counsel that in their own interests they will do well to present their documents in German to the translation department not only in strict compliance with the "2 Weeks Rule", I believe it is, but also at earlier date whenever possible. That should be possible with those counsel who represent defendants whose cases arc being presented after the first two or throe defendants have been heard. That appears to be essential.
The other consideration is perhaps a more difficult one. It may perhaps be illustrated. We are told that in one of the Tribunals an entire Russian play was submitted to the translation department for translation preparatory to its introduction in evidence. That was certainly not in this Tribunal. Frankly, we had at least slight misgivings concerning the introduction of any extended address on the subject of justices of the peace this morning. That as not, however, a ruling We admonish counsel to exercise extreme self restraint in submitting to the Translation Department entire speeches and entire legal articles and, whereever it is possible, to submit only excerpts rather than the entire address.
We think that is fair because each defendant has had, and each defendant will have, opportunity as a witness to testify concerning not only his present attitude on material issues, but also his attitude at the time when the events occurred, and he may, in oral testimony, greatly abbreviate the entire record if he will summarize rather than introducing exhibits which are causing a congestion as to render the situation serious.
Now, in the first instance, all we can do is to refer to the good faith and the self-restraint which we know counsel will attempt to exercise in simplifying this problem. If the congestion should become too great, it might be necessary to establish some means of determining in advance the extent to which lengthy documents should be submitted for complete and full translation.
I am sure counsel will cooperate with us in this matter, because it is for the interest of all.
You may proceed with the case.
***RT ROTHENBERGER (Resumed) DIRECT EXAMINATION (Continued) BY DR. WANDSCHNIEDER:
Q Dr. Rothenberger, would you please continue your description of the difficulties which you had with Dr. Thierack?
A Up to now I have described the manner in which Thierack attempted, for professional reasons, to give me the cold shoulder. There were two additional, personal, reasons why he tried to blackball me. One reason dates back to the spring of 1943. At that time an anonymous denunciation was received by him with the assertion that I and some other officials had furniture made without being authorized to do so.
He did not give me an opportunity to explain the matter, and ordered a Ministerialrat (Ministerial Councillor) in the Ministry to investigate the affair immediately. It was shown that two warrobes were concerned, which I had obtained in order to move to Berlin, and I could submit the appropriate ration cards, which were required in Germany at the time for that, for the obtaining of wood.
Thierack did not inform me of the result of this investigation against me, and left me in the dark concerning this question for several weeks. I found cut about it only through this Ministerial Councillor, for whom the matter, of course, was very unpleasant. He, as well as I, were under the impression that Thierack wanted to use this personal affair in order to "let me have it", as we say.
The second reason extended during the entire time of my activity. It started in September of 1942. That was an affair, the details of which I can only go into later, because it brought about my discharge. However, I shall now indicate briefly the history of its origin.
When I came to Berlin in August and began my reform, I was anxious to have the preparatory work, which I had done in Hamburg during the last three years, published so that not only my assistants, but also the German judiciary, would know about it and therefore would perhaps be caused to help with this work. Because Thierack was interested in knowing what kind of preparatory work and papers these were, he asked me to give him the manuscript, which was rather a big book. It was his desire, he said, to write a preface to the book which was to be published. He had this manuscript in his possession for several months, and I reminded him about it several times, asking him whether he could not return the manuscript to me, but until December of 1942 that was unsuccessful. After that time he returned it to me. However, he told me that before I could publish it, I would have to submit it to the official Party Reviewing Commission. That was a commission which was subordinated to the Party Chancellery, as far as I knew and they would have to examine this book as to its conformity with National Socialism.
However, he said, this was a purely formal matter.
The Chief of this Commission -- unfortunately I no longer remember his name--came to me a few days later and told me that he could not do anything, about it, that he had been instructed to submit the matter to the Party Chancellery. Meanwhile, I made inquiries of other gentlemen in other Ministries as to whether they also had to use that method if they wanted to publish something, and they all denied it.
The reviewing of this bock by the Party Chancellery, then, took six months. I think it lasted until June or July of 1943. The result was that in August an SD report about the book was forwarded to Thierack, and Thierack read it to me. According to this SD report, the historical part of the book, which concerned itself with the old Germanic and Franconian time, had an alleged plagiarism contained therein. Thierack used this charge of plagiarism, toward the end of the year 1943, in order to effect my finally being discharged. I shall speak about details in regard to this matter later on.
Q Can you now speak about your main activities' in Berlin, after you became Undersecretary? Would you please limit yourself to that now?
A In accordance with the manner, the circumstances , and the full purpose of my appointment, I naturally considered it my main task to lead the reform of the judiciary. My activity in that connection was mainly in two fields: First, outside of the Ministry, outside of Berlin; and secondly, in the Ministry itself.
During the first month I intentionally went to the German Gaue for one to two weeks every month. The purpose of these trips was to inform the German judges regarding my plans and thereby to strengthen their backbone and, after the infamous Hitler speech, to again restore their confidence.
I was successful in achieving that to a large extent, as far as I am able to judge it myself.
The second question was much more difficult. I tried, by referring to my commission by Hitler, to convince the Gauleaders and Reichsstatthalter in the Gaue of the necessity of effecting a clean and orderly administration of the laws. I only succeeded in doing this in very small part. For the first time I met and became familiar with the type of German Gau leader and their relationship to the Administration of Justice, especially their relationship to the local district courts of appeals presidents and the local general public prosecutors.
Statements have already been made, here in part, about my experiences on these trips, especially in Nuernberg, Bamberg, and Wuerzburg. I do not want to refer to this again; the statements which were made here were absolutely correct.
Generally speaking, my experience was that in those Gaus men were at the top of the Administration of Justice as President of the District Court of Appeals, or as Chief Public Prosecutor who merely wanted to maintain their position and who were of the opinion that it would be suicide if they would defend themselves against the intervention and attacks by the Party or the SS against the Administration of Justice. There the Party ruled. And in those Gaus where people held the position of President of the District Court of Appeals who were personalities, they dared to represent the interests of the Administration of Justice. In those districts the conditions were much more calm and much better, without wanting to maintain that it was an absolutely satisfactory condition. Individual cases existed everywhere. About other trips I believe I don't have to mention, either. My defense counsel shall submit several documents about that also.
Q In that connection, Dr. Rothenberger, I want to ask you once more whether Thierack had reports made about the result of your trips by third persons.
AAfter almost every trip Thierack reproached me with something or other, which was how I know very well today through some SD report he found out in the shortest possible time what remarks I had made to judges or in conversations on my trips. I recall one occasion in particular, I very clearly expressed the necessity that the Prosecution would have to remain with the Administration of Justice. Thierack made this a cause for forbidding me to go on further trips.
Q Thank you; that is enough. Would you now please talk about the question how you yourself began your work and carried it out in the Ministry?
A I want to hold the statements about that work very brief, although from the temporal point of view they used up most of my time.
From the formal point of view I instituted three reform offices in the Ministry, the Office for the Reorganization of the German Constitution of the Courts, the Office Justices of the Peace or Justice Through the People, and the office Judges and Administrators of the Law, Rechtspfleger. That was in accordance with my plans which I described briefly this morning. And in regard to all details I would like to refer to the articles which I wrote about that work and published and which will be submitted to the Tribunal.
Q Can you say one more word about what happened to your reform plan after you left the Ministry?
A I can not say that with certainty. I do know that two offices had discontinued their work already before I left the Ministry, that is the Office for Justices of the Peace and the Office for Administrators of the Law. The third office, as far as I know, was continued later on, too.
Q What other routine tasks did you have to fulfill in the Ministry?
A This morning I mentioned that I was in charge as being coresponsible for Divisions I, II, VI, and VIII. Division I was the personnel department. Chief of that personnel department had been so far the Ministerial director Nadler. I knew him for years from the time of my work in Hamburg. He was a decent civil servant and he was efficient in his own field. Since he was an old Party member Freisler had taken him along into the Ministry in 1934. Toward a man like Freisler he had absolutely no backbone whatsoever. For that reason I saw to it that a change of personnel should take place in that office. Ministerialdirektor Letz took his place. Letz had for nine years been my closest collaborator in Hamburg, and therefore I knew his attitude very well. He had also assisted in my reform work, and therefore I also charged him with one of the offices in charge of the reform work.
Q Dr. Rothenberger, in connection with your personnel policy, NG817 was put to you. Would you please state something about it? NG 817 was submitted as Exhibit 486 in Volume 3-A, page 136 in the German text.
Unfortunately I don't have the English page number.
A In personnel matters Thierack had limited my field of responsibility to the following extent: He reserved to himself the right to promote all judges, so that I myself was responsible only for the officials in the medium positions and for the first position to which a judge was appointed. The personnel matters of the Ministry and of the People's Court and of all prisons he reserved to himself. If in NG-817 I was informed about a suggestion for the appointing of assistant judges to the People's Court, this means first of all only that I did not appoint these judges myself, but was informed about it. And the reason that I heard about it is that judges were appointed to the People's Court who had so far belonged to my official field in any area of any District Court of Appeals, and if these judges now came to the People's Court I had to replace them in their former offices. In regard to these personnel problems in the Ministry itself which Thierack had reserved to himself alone a very great and very unfortunate importance was assumed by a man whom he had brought alone and whom he made office director in the Ministry, a so-called Buergner. The office chief is the highest official of the entire personnel in the Ministry. This Buergner was going around in the uniform of the SD all the time ans was the informer whom Thierack used. He had already worked in the Ministry before; therefore he knew many of the officials and tried to remove anyone whom he did not consider politically reliable because he had perhaps been a Free Mason or a person of mixed race or not a Party Member. Unfortunately in part he was successful in this. In part Letz and I succeeded in preventing this.
Q That is probably enough right here. The Tribunal had submitted to it as NG-399 Exhibit 243 a correspondence consisting of several documents, which was carried on between the Reichsminister of Justice and the Reich and Party Chancellery. About personnel measures on the basis of the authorization of August 1942 I thus refer to Exhibit 243, Volume 1-B, page 123 in the English Document Book.
Q. Dr. Rothenberger, by referring to this correspondence, will you please make some statements as to whether any changes were made in personnel policy on the basis of the authorization of August 1942.
A. From the correspondence which I do not remember any more myself, it is apparent that Thierack himself was not of the opinion that on the basis of the authorization by Hitler he was justified in removing an official from office, rather it shows that he attempted to achieve that a special order was issued by agreement of Dr. Lammers and Bormann. Dr. Lammers expressed misgivings about this intention on the part of Thierack. Thierack's intention was to the effect that for half a year, an officiaL should be transferred to another office or retired, and in order to prepare this change in personnel which Thierack planned, he requested the Presidents of the District Courts of appeals and the General Public Prosecutors to name to him those officials and judges who could be considered for a reduction in force, Since Lammers, however, objected against this step by Thierack, the decree was not issued and no judge or official was discharged or retired on the basis of this intended measure.
The competent personnel Referent meanwhile told me--that something I did not know before--that until the time of the surrender, these officials remained in office.
Q. Now please comment on Division II which was also under your supervision.
A. Division II was the division for the future lawyers and for the examinations. The chief of Division II was President Palland. Palland had been appointed by Freisler from Kassel, which was also Freisler's home town, Freisler brought him along, and he had a very low reputation in his division. In Hamburg already, young Referendars told me that once on the occasion of a big speech in Danzig, where he spoke in place of Freisler, Palland had said, among other things, "I am here taking the place of a man who is too great to even have his feet kissed."
Especially the young future jurists had a very fine perception of such an attitude. Since Palland did not seem to be the suitable man for the training of future jurists, to me, I suggested that he should be replaced. Palland was pensioned. I believe he was a man of about 64 years--I don't know for sure--but he was in his 60's. In his place I appointed my collaborator from Hamburg, Segelken. I already mentioned this morning what the result of this action was; namely that within a short time Thierack removed Segelken.
As regards the rest of the changes in the personnel of the Ministry, I bear no responsibility whatsoever; on the contrary, I attempted to prevent Thierack from taking these steps. As regards the work, I only want to mention two points from that division: one, the institution which I mentioned already within the framework of my reform plans--that is the practical communities of work; and secondly a fight with Himmler. From an exhibit which was read this morning, it is apparent already that Himmler tried, in regard to the training and examination of all young jurists, to get it into his hands, with the express purpose to educate the young jurists within the meaning of his ideas.
So far the following had prevailed. All of the young jurists in Germany--the legal students--irrespective of whether they would become lawyers or judges or university professors or administrative officials, that is in Himmler's field, always had to go through a training in the Administration of Justice, and were also examined by the Minister of Justice alone in both of their examinations. This condition I considered extremely desirable because the spirit in which legal students are trained is the spirit which determines the attitude of the leading personalities later on. We were successful in beating back this attack of Himmler in regard to the examination and training field.
Q. What did you work on in Division VI?
A. Division VI was competent for the entire civil law and civil trial procedure. During my term in office, no fundamental changes occurred in this field.
Q. Dr. Rothenberger, then a racial, political department was installed. Please make some statements about this. In this connection, I refer to NG-410. I don't have an exhibit number for this. It is in Volume VIII-A, Page 1--NG--410. According to my notation, it does not have an exhibit number. It was not introduced as an exhibit.
THE PRESIDENT: May I interrupt you? I am sorry to do so. In informal conferences, the members of the Tribunal decided to express the hope that counsel would always give us, when there is an exhibit number, that number first, followed by the document number because our records are all in that form. So far as it's possible and convenient, we'd like to have you do that.
DR. WANDSCHNEIDER: Excuse me, I didn't quite understand. First the exhibit number?
THE PRESIDENT: Yes. please.
THE WITNESS: What is meant by a racial-political department-
BY DR. WANDSCHNEIDER:
Q. Dr. Rothenberger, please just one moment. I have no exhibit number for this document. Please continue.
A. What is meant by a racial-political department can be seen from the training plan which is submitted in this exhibit. This included, in addition to the general racial information, general questions of population policy, biological and hereditary, and biological and family questions. If such questions occurred in legislation, they had up to that time been dealt with in varying depart ments in the Ministry.
Thus if they appeared in the criminal field, they were worked on in Division IV; if they came up in the civil field, in Division VI; if they occurred in the field of economic law, they were dealt with in Division VII, and so forth. The purpose of this measure was, if such questions came up they would be handled by one department and uniformly.
During my time in office, and as far as I recall, this department did not deal with those problems at all. This Referent did not deal with it. He did, to be sure, make the suggestion for eithical, biological, racial-political training; that was on the 21 November 1943. That was shortly before I left the Ministry. Whether anything came of this training, I do not know.
Q. All right. Thank you very much. We now come to the next question. Did you have anything to do with the Divisions: Criminal Law III, IV, V and XV?
A. I already mentioned briefly this morning that the ordinance by Thierack of 27 August, 1942, directed that these divisions 3,4,5 and 15 should be subordinated to him directly and that excluded me from them. This meant in effect that for one thing in regard to the work in the Ministry itself, in regard to the administration of criminal law and the administration of penalties, I would not bear any responsibility whatsoever. Furthermore, this meant however, that the criminal courts which were under the ministry, who in each case were subordinated to these Divisions 3,4, etc., and the institutions for the penalties which were subordinated to Division 5 were also not subject to my responsibility. In addition to this, the entire prosecution belonged to this, that is the general public prosecutors in the Reich, the prosecutions, the People's Court and all of the Special Courts. I had a diagram prepared which makes that clear graphically, namely, what courts were subordinated to Divisions 3 and 4, in each case.
Q. I shall later submit this diagram in connection with my documents. Dr. Rothenberger, continue, please.
A. If I may mention this, if, in the opening speech it was mentioned especially that I had become Freisler's successor, I have to refute that herewith, because Freisler happened to be just the under secretary who was charged with the entire field of criminal law.
Q. Dr. Rothenberger, for what reason were you excluded from the field of criminal law and administration of penalties?
A. He based his decision on the-reason that I had no political experiences and no experiences in the field of criminal law; he was absolutely correct, and I agreed to this arrangement because in this way I could devote my time to my main task, that is to reform.
Q. Did you ever work in Divisions 5 and 15?
A. No, never. Not oven when the minister was absent, or as his deputy; not a single time during fifteen months did any referents of those divisions report to me ever.
Q. Did you at any time ever gain any knowledge about the events in the criminal divisions 2, 4; and, if so, how?
A. Yes, in regard to occurrences in Divisions 3 and 4 that is the divisions for criminal law, in general I did not gain any knowledge; however, at irregular intervals I did got such knowledge, namely, by having a referent or, occasionally Thierack himself tells me about some measure or another which had been taken or sent to ms for my information. That in part may have been the old practice in the Ministry because formerly the criminal law was also under the under secretary, and in part the reason was that the referents themselves were interested occasionally in letting me participate in some case -- drawing me % into some case. This sending information for my information only is something that is fundamentally different from putting a signature on something for which one is responsible. It has already been explained here in detail what signature and co-signature means. That means that the person who signed a document assumed the responsibility for the context; therefore, either the main responsibility; or, if a co-signer, the co-responsibility. These signatures are put below the document; this practice has to be distinguished fundamentally from the reading of a document for information. The signature for this is either at the top -- on the stamp that the document has been received; or on the margin of the letter; or, in the place where it says to the under secretary for information.
That meant that I saw only this one event; that thus, I could not make any judgement about the significance and the extent of the decision which had already been made since the files of the case as such were not known to me -- the course it had taken. In such cases, I made it known, by a brief initial that I had seen the document.
Q. I now want to submit some individual documents to you, Dr. Rothenberger, and ask you to make some statement about them. The first is Exhibit 142, submitted in Document Book III-H, page 67. This is a letter by the Reich Minister of Justice of August, 1943, to the Chief of the Party Chancery, and concerns the criminal law of juveniles.
A. I don't have it here, but at the time I saw it for information.
Q. Would you please make some statement about it?
A. I can no longer remember the text.
7. Well, I can submit this letter to you in order to inform you about it.
A. Yes, At the and it says "to under secretary Dr. Rothenberger, with request to inform himself about it." I therefore assume that I saw this letter.
Q. Did you have to take any steps in this matter at the time?
A. No, I already stated what this receiving of information means.
Q. In another case, did you also receive information of Exhibit 198? I shall also submit this letter to you.
A. Yes, I received this for information.
Q. And a final letter; that is Exhibit 142, Document Book.
Book III-D, page 136.
A. Yes, I would like to say a few words about this. When I entered my office it had been intended that Division 4 would regularly inform me about the decisions which Thierack had made in clemancy matters. From NG-195, which has already been mentioned, it is apparent that I had no part in the decisions which Thierack had made, I was not present when he made them. However, nothing came of this intention to inform me about them subsequently. After a few weeks this was forgotten again, but at the beginning I was informed subsequently of such decisions.
Q. May I then submit another Exhibit to you, Dr. Rothenberger, and that is the so-called Fuehrer Information about the Paschen case. Can you make some statement about this case as far as you remember it? I shall look for the exhibit number. It is Exhibit 141, in Document Book 111-C, page 125 in the German document book; that is NG-546, Exhibit 141.
A. I do not remember the case itself. From the exhibit which has been submitted to me I can only gather the following: This is a draft of a so-called Fuehrer Information, without date and without signature. Such Fuerher Information sheets were exclusively ordinarily signed by Thierack; whether he signed this particular one, I don't know. From what has been submitted to me here, I have to assume that it was a draft which was not signed by Thierack. I, myself, as I can see from the submitted original, looked at this draft for information -- as I can see from my initials on the margin. As regards the decision on the clemancy plea which was made, I did not participate in it, neither do I know whether a clemency plea was granted at all and how; but I only found out here that this Captain Paschen is supposed to be alive still to-day; but, I can't prove that - I can't examine that or prove that.