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.
It is possible that this was sent to me for information because Paschen was from Hamburg, but that is only an assumption my part.
MR. LAFOLLETTE: If your Honors please, I would like to address the Court for a minute because I believe that I can be of some assistance with reference to some of these documents in the Rothenberger case about which the Court and counsel were having trouble as to an exhibit number.
NG-279, 410,542 and 632 were introduced as Exhibit 142 on the 25 March as shown on the transcript at Page 950.
JUDGE BLAIR: My record shows that to be 532 instead of 632.
MR. LAFOLLETTE: The transcript, I believe, your Honor, says 632.
JUDGE BLAIR: That may be so.
MR. LAFOLLETTE: The Court will remember that there was a dispute as to the signature on the very document we are now discussing, that Dr. Goetzer was here and that Mr. Eitner took the stand and these four numbers that I have given were used for the purpose of identifying signatures. That is why they are in some document books but only bear this one exhibit number.
JUDGE BLAIR: Bearing that out, I will just give you my note on it as of that date. Exhibit 141 was introduced to show the initials of Dr. Rothenberger on that, which was denied by his counsel.
MR. LAFOLLETTE: That is right.
JUDGE BLAIR: 142 shows that you put on an expert witness who examined these other documents and identified these other documents for the comparison of Dr. Rothenberger's signature thereon, and they were introduced solely for that purpose, according to my notes, which were introduced to prove the authority of the signature of Dr. Rothenberger to NG-546, introduced as Exhibit 141. That is what I have here and your explanation is in accord with it.
MR. LAFOLLETTE: It is largely in accord with that, your Honor, except we find that some of these were translated and in document books.
As far as I am concerned, I am not sure that they didn't finally come into the record when we permitted all these matters to come in, but that is what has occasionned this inability to find numbers.
THE PRESIDENT: How, the Secretary had found them for us. Let me check the numbers with you. NG-632.
MR. LAFOLLETTE: Yes.
THE PRESIDENT: And 542.
MR. LAFOLLETTE: Right.
THE PRESIDENT: 410.
MR. LAFOLLETTE: Right.
THE PRESIDENT: And 279.
MR. LAFOLLETTE: And 279 and this is all found in the transcript from Pages 938 to 950 on the 25 of March.
THE PRESIDENT: All right.
BY DR. WANDSCHNIEDER:
Q. Have you finished with the Paschen case?
A. Yes, I have. The only thing that is missing is NG-434 and NG-228.
Q. Please make some statements about the latter. That is Exhibit 312 and in Document Book VI, Page 48.
A. I also saw these two exhibits for information.
Q. Then two additional documents were submitted, that is, Exhibit 194 and Exhibit 262 -- Exhibit 194 in Document Book III-H and Exhibit 262 in Document Book IV-A, Page 37. Will you please look at those documents and tell me whether you received them for your information?
A. I already looked at these documents as regards their contents when they were submitted and I believe, with certainty, that they were not sent to me for information. I did not see them for information. I may be wrong, but I did not sign them.
Q. We are now going to speak about the clemency cases. How was it basically in clemency matters regarding your competency?
A. The Exhibit NG-195, which has already been mentioned, it is apparent that the Minister reserved to himself the light to make decisions in clemency matters and that I, when these matters were reported to him, was not present either. My activity in clemency matters was, therefore, restricted to cases which were reported to me when the minister was not present and an urgent clemency case was pending.
Q. In which individual cases did you make the decision yourself on a clemency plea?
DR. WANDSCHNEIDER: For the information of the Tribunal I would like to refer to Exhibits 286 in Document Book VII-A, Page 102 and Exhibit 288 in Document Book 7-4, Page 126. These are the cases of Ploetzensee Penitentiary which have already been discussed repeatedly here. 286 and 288.
BY DR. WANDSCHNEIDER:
Q. Would you please comment on this case?
A. I remember that case very well. It is a particularly tragic case with which I was confronted. It happened in September 1943. When Thierack called up first my adjutant in the morning and told him that serious air raids had been made on. Ploetzensee -- that is a prison near Berlin -- large parts of this prison had been destroyed by this air raid. Several inmates of the prison had already escaped and, therefore, urgent clemency cases would have to be decided before more trouble should occur. He himself could not listen to the report. on the clemency pleas because he, I believe, had been suffering with his leg. In any case he was sick and since he was not coming to the ministry, therefore, he commissioned me to hear the reports on the clemency pleas. I then called Theirack again and inquired about details and he again told me, and this can also be seen from the exhibit, that by telephone he could be reached and that he had already made all of the arrangements with the Ploetzensee Penitentiary in regard to the execution of the of the sentences which I might possibly confirm.
I then asked Thierack whether these cases were all ripe for decision. He replied yes, with the exception of a few and, therefore, I ordered, so that I could also get a personal opinion from the judge and the prosecutor who had personally been present during the trial, to have them report to me. And then, as I can see from the reports on file, on the 7th and 8th of September from morning till evening clemency cases were reported to me. There were in all about 150 to 200 cases, that were reported to me in two to three days. I believe on the third day, as far as I remember, a few cases were reported too. In itself, this activity was for me, who had no experience in clemency questions, a very serious burden from the human point of view and an inner burden, but I had to act. The clemency reports were made the same way as had been described already in detail here, especially by the witness Altmeyer; the referent stated his opinion, the subdivisions chief did likewise, the judges and prosecutors who were present and who had participated in the decision, this was the special and additional factor in this case, stated their opinion and on the basis of these reports I made the decision and, of course, I assume the full responsibility for the decision in those cases.
Q. Did you have anything at all to do with the execution of the sentences?
A. No. I already mentioned that Thierack had told me -- and this can also be seen from the exhibit-that he had reports made to him currently by the prison that he ha d made arrangements regarding the execution I did not even know and I only found this out subsequently that the guillotine had been destroyed by airraids and, therefore, the execution would have to take place by hanging.
The President: We will take our recess at this time for fifteen minutes.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
DR. WANDSCHNEIDER: May it please the Tribunal -excuse me.
THE PRESIDENT: Mr. Prosecutor.
MR. LaFOLLETTE: Yes.
THE PRESIDENT: We have no electricity. We will wait a few minutes and see if we have any light.
We will absent ourselves until the electricity is restored.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. WANDSCHNEIDER: May it please the Court, I would like to mention two translation errors. They may not be very important, but they might be misleading.
THE PRESIDENT: We will ask you to postpone it until the Tribunal passes upon another matter.
DR. WANDSCHNEIDER: Naturally.
THE PRESIDENT: The affidavit which has been submitted and which was read at the opening of the afternoon session presents matters of very serious concern to the Tribunal and no doubt to all of counsel, including those mentioned in the affidavit. The affidavit is not in the form which would warrant the Tribunal in acting upon it at this time, and it is the desire of the Tribunal that the office of the prosecution make such investigation as may be necessary with the aid of such aids as they may have to ascertain the name of the secretary mentioned in the sworn statement and to prepare and submit to the Court for its examination and for such action as the Tribunal may deem proper an order citing the secretary whose name is not mentioned and also citing Dr. Hans Marx to come before the Tribunal at a time to be determined by the Tribunal and to show cause in each case why they should not be held in contempt of court.
You will prepare such a form and submit it for the consideration of the Tribunal.
In making this order, and in view of the fact that it may be that some of the defense counsel are not aware of the fair procedures which are always followed in those matters, the Tribunal will say further that we deemed it improper to require or oven to permit an oral statement to be made on such short notice after the affidavit had been introduced and that if the Court does issue a citation, that there will be given full opportunity for any persons cited to introduce such evidence as they may have in their own defense.
MR. LA FOLLETTE: If Your Honor please, the prosecution will conform to the Court's order. May I further say also from the standpoint of what is fair that the prosecution did not go out and seek this information. It came to it, and we thought we were obligated to present it; nor did we anticipate that the Court would act purely on the affidavit. We will comply with the Court's order.
THE PRESIDENT: Now you may proceed.
DR. WANDSCHNEIDER: Earlier Dr. Rothenberger spoke about the type of Urrichter - the arch judge - he was referring to - the concept of judge. That concept of the Urrichter, as one might say, the concept of the judge as such, was, as I have been told translated as "judge of watch." That naturally is a misleading translation, and I therefore request that the proper translation is entered into the transcript. I did not hear it but I was told so.
Another mistake occurred a little while ago when the Ploetzensee case was discussed. Dr. Rothenberger said in that connection that the adjutant rang him up in the morning. I have been told that what was taken down was. "The adjutant Morgen," as if that had been his name. What is meant was that Dr. Rothenberger was called up in the morning. It is not very important but I wanted to put that blemish right, too.
THE PRESIDENT: Dr. Kuboschok expressed some concern a moment ago. Did you want to be heard, doctor?
DR. KUBOSCHOK: No.
THE PRESIDENT: All right, you may proceed.
BY DR. WANDSCHNEIDER:
Q Your Honor, may I continue? Dr. Rothenberger, I believe we had finished the one point. You described to us how reports on clemency pleas were made. Did you intend to make any further statements on that subject? If not, I would like you to give us your view about the execution of four persons before the decision had been made on the clemency plea.
A I only heard a few days after it had happened that four men had been executed at the prison before I had made a decision on the clemency plea. The exhibit which has been submitted shows the reason for the mistake which brought about such a result. The reason was that two prison officials had taken down the wrong names. This very regrettable fact was outside my sphere of office and my competency. The execution of sentences took place in the prison and in that respect Thierack had not given me or transferred to me any authority or competence. As I was told afterwards, he, himself, afterwards did make a decision about those four cases. All details are evident from the reports by the General Prosecutor at the Kammergericht - the Supreme Court of Prussia.
Q I now would like to discuss with you several cases. I would like to begin with the Petrolinas case. The prosecution submitted it under Exhibit 163, Volume III-E, Page 1. Would you please give us your opinion about that case?
A That case concerned a so-called lightening execution. Those lightening executions were instituted before mine or Thierack's term of office, on the 16th of June 1942. That is evident from NG-530. The case itself developed as follows: The competent public prosecutor at Essen, who had attended the sessions, first called up the Referent in his office and asked for a decision on the clemency plea. The Referent tried to approach the Minister. The Minister was not in Berlin. In any case, he was not available. I am not sure which. Consequently, he called me up. As the report by the Referent was not sufficient for me. I contacted the public prosecutor in Essen and asked him to describe the course of events to me in detail.
A certain Petrolinas, after a large scale air raid on Essen, had stolen three food dishes. As the value of those stolen objects did not seem big enough to me to justify the sentence, I asked him for particulars.
If I judge the decision that I made in those days from the point of View of the calmness that prevails today, it is of course too severe. One can only understand that decision if one thinks back to the conditions which existed, in a town after a large scale airraid. As I personally had experienced many such large scale air raids both in Hamburg and in Berlin, I realized that a knowledge of local conditions after such an air raid would have to be taken into consideration to a large extent in making such a decision.
The prosecutor in answer to my inquiry told me - this is evident from the exhibits took- that all local authorities considered it necessary that the sentence should be executed: the presiding judge of the court, the general public prosecutor, the president of the police, who was responsible for the safety of the population and the Reichsstatthalter.
Most of the center of the town of Essen was on fire. There was a full moon and further large scale airraids had therefore to be expected. So far, it had not been possible to catch plunderer in Essen. As always happened after such air raids , the police were largely occupied with fire fighting and with rescuing the possessions of the population from the fire. It was considered of urgent necessity that once one had caught a plunderer to execute the death sentence on him as a deterrent. Not even the simplest articles were available at the moment, and therefore they had a greater value than in normal times. I had to decide between the question as to whether by making such a decision I was to contribute towards exercizing a deterring influence and thereby preserving the population, the women and children from further harm, or was I to exercise clemency on Petrolinas. Hard as that was, I decided that the execution was to take place.