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.
Q Further more, in tho Gogler case, Exhibit 135, in Document Book III-B, page 1, the Prosecution has mentioned another case which was reported to you when you were deputizing for the minister. Please comment on that case?
A I no longer remember that case, but from the opinion, I can gather the necessary the necessary details. Not the entire opinion is available, but only part of it, that is, some of the reasons. All the same I believe that I am able to reconstruct tho case. It concerned a Polish workman who worked inside the Reich and who had given to a Polish flight lieutenant who had served in the RAF and who had become a prisoner of war several exact drawings of the prison camp where he was held for payment, so as to help him to escape. The opinion and the reasons for the sentence shows that the contents of the drawings which were found showed clearly that Gogler wanted to depict in his drawings the whole surroundings of the camp. Therefore, the court did not believe it when he said that he had only made the drawing to show the flight lieutenant where the camp of the civilian workers was located. Gogler's brother was acquitted in the same sentence. The opinion which gives the reasons for that acquittal is unfortunately not available. To me the opinion from every point of view, subjectively and objectively, was correct; personal reasons for clemency were not advanced; from the legal point of view treason and abetting the enemy had occurred, and for that the death sentence was mandatory. If the sentence is also based upon tho law concerning Poles, that was without any legal significance, because under Article 91-B of the German penal code, alone, the death sentence is mandatory for treason, connected with abetting the enemy. I ordered that sentence be executed.
Q In July, 1943, in another case you did not exercise your right for clemency. I am referring to the Kalecki case which was mentioned by the Prosecution in Exhibit 130, in Document Book III-A, page 84 in the English text. Please give us your views on that.
A In the Kalecki case the legal situation is exactly the same as in the Gogler case. Here, too, Poles were concerned who had committed treason in the Reich and had abetted the enemy. They had done so by several times leaving their place of work and trying to escape across the Swiss frontier to join the Polish Legion. I have no personal recollection of that decision either. The legal justification is the same as in the Gogler. In this case, too, it was a case of treason committed in our own country, and as no personal reasons were advanced, I decided in favor of the execution of the sentence.
Q The Prosecution further connected you with a document which has been submitted as Exhibit 255, in Document Book IV-A, page 6. The document is concerned with clemency granted to two party members who had committed a serious crime; they had murdered two clergymen; and they received clemency without having merited clemency. Did you play any part in that?
A This is an error on the part of the Prosecution. I had nothing to do with the deciding of the clemency plea on behalf of those two party members. I neither signed it nor did I see it for purposes of information; and furthermore, from the Prosecution's own document it is evident from Document Book IV, Supplement Volume III, No. 6-C; there it is evident that it was Thierack who decided the case.
THE PRESIDENT: May I have that reference again?
A Document Book IV, Supplement Volume III, No, 6-C.
Q Dr. Rothenberger, we will now go over to another subject. Now we are going to deal with the beginning of the war. I want to ask you about the Jewish problem which we have already discussed. In what way did the Jewish problem develop after the outbreak of the war, as far as your opinion goes.
A The outbreak of the war increased the difficulties of the Jewish problem in Germany considerably. The situation became considerably more acute, and in particular under the influence of propaganda. Under that influence, naturally difficult legal conflicts arose as far as the situation of a Jew in court proceedings was concerned.
Previously, as Dr. Schlegelberger emphasized, already there had existed separate welfare institutions for Aryans and non-aryans. There was the NSV for the Aryans, and there were separate welfare institutions for the non-aryans. For the jurisdiction, that resulted in a complete insecurity on the part of the judges as to the question whether a Jew can be allowed to conduct proceedings without paying costs. There were courts which granted that privilege; there were other courts that did not. I considered that a uniform jurisdiction on these matters was necessary. Naturally I was not uninfluenced by the situation then prevailing; and, therefore, I supported a proposal to the Reich Ministry of Justice that a uniform jurisdiction should be developed to the effect that such privileges were not to be granted to the Jews. The importance of those privileges concerning costs and non-payment of costs has been characterized by Dr. Schlegelberger who said that the state makes an advance which the person concerned has to pay back, that is to say he is not exempted from paying costs caused by court proceedings. The Prosecution in submitting evidence read out a sentence which is supposed to have originated with me. I only want to correct the matter to say that Exhibit 372, NG-589, shows that that sentence is not mine, but was phrased by the Gau Economic Advisor. The other exhibits which refer to that question are NG-392 -
Q Dr. Rothenberger, may I interrupt you for a moment so that we can quote the correct exhibit numbers to the Court? They are Exhibits 373, Document Book V-D, page 331 further Exhibit 462, in Document Book V Supplement, page 82; and Exhibit 372, Document Book V-D, page 264. Would you please continue.
A The only thing I can add is that it happened fairly frequently, and that appears altogether understandable that the Jews in order to avoid having their property confiscated upon their emigration, transferred their property to somebody else in a fake transaction. Thus, the whole problem became more complicated and more difficult for the courts.
Q In what way were you concerned with the curtailment of Jewish legal rights which emerged in the subsequent period?
A: I had to deal with that question once again, in the Spring of 1943. At the end of April Thierack one day asked me to go see him and told me that on the same day a discussion would take place, a so-called conference of under-secretaries. That conference was to be hold at the Reich Ministry of the Interior. I believe I had no knowledge of those developments until then.
Q: May I interrupt you, Dr. Rothenberger? At the moment we are concerned with Exhibit 204, which Dr. Rothenberge wants to discuss; it is contained in Volume III-H, Page 38. This Exhibit 204 is composed of a number of letters in which a craft on curtailment of legal means and legal recourse for Jeww is discussed and in which various ministeries give their views. Will you tell us, please, whether you had anything to do with that matter?
A: Until that conference I had nothing to do with the previous history. That is duo to the fact that the first draft originates from a time before I had assumed office. It is dated 3 August 1942 and it is signed by Dr. Freisler. The second draft is dated 13 August and that also was before I assumed office. As this was a matter concerning penal law I was not informed about the developments during the subsequent period. As I can see from the documents now, in September 1942 the so-called GBV, the plenipotentiary general for the Reich Administration -- that was the Reich Minister of the Interior -- was in charge of the drafting, and conference which I have mentioned took place at the Reich Ministry of the Interior.
Q: Would you tell us something about the course of the conference of April 1943?
A: Thierack, before I want to the conference, handed me a draft.
That was the draft by the GBV of the 25 September 1942. That was already six months old by that time because the conference took place in April 1945. I was annoyed anyhow that I was now to deal with a matter the previous history of which I did not know. I had a look at the draft in Thierack's office and when I had read it I said to him that I was against such far-reaching restrictions.
What seemed embarrassing to me, in particular, was the provision that if the Jew was not to swear an oath, he was yet to be punished for purgery. Thierack said to me that doesn't matter. In his somewhat brusque and curt manner he said, "You will have to go there, for I am the Minister and I cannot attend a conference of undersecretaries." That, as a matter of fact, wax not the custom. I went to the Reich Ministry of Interior. To begin with, I maintained reserve, because I had not dealt with, the matter beforehand. Then I heard from the others who were present there that they too were against such' an ordinance. Thereupon, I said that that was my personal opinion too. Of course, I could not say as to the Minister's decision. He was in favor of it, as he has told me beforehand.
Then the provisions of that draft were dropped. Only one person objected. That was Kaltenbrunner who was present. Kaltenbrunner said he had to attack a decisive importance to at least two provisions becoming law. He was referring to two provisions which, in effect for some time, had already been applied, which however, required subsequent legalization. One provision was that the property of a Jew she dies goes over to the Reich. He said, as is evident in detail from the Exhibit, that until now Jewish property in the case of death had been regarded as socalled property of an enemy of the state and had, therefore, been confiscated all along.
But he would like have a legal provision, because that would constitute a technical administrative simplification.
That provision, as I see from the file, had not been incorporated into the draft before by the Reich Ministry of Justice, but by the Reich Ministry of Interior. It appears for the first time in the draft of 25 September 1942. The Ministry of Justice, thus, did not deal with it. The second provision -
THE PRESIDENT: Would you mind telling us what happened to that provision?
THE WITNESS: Yes. That provision did become law afterwards. Yes, I meant to say that.
A: (Continuing) The second provision which Kaltenbrunner wanted to become law and considered necessary was a provision, which has already been discussed here, and it concerned handing over the penal jurisdiction over Jews from the administration of Justice to the Police. As far as I was concerned that resulted in an entirely new situation, for that provision was not contained in previous draft. I felt I could not assume any responsibility for such a provision, all the more so as I had no formal competence for penal matters. I would have to report to the Minister as I had been requested by him to do.
Q: Did you make a report to Dr. Thierack?
A: I went to see Thierack on the same day, and I told him that he had now for the second time confronted me with a very embarrassing situation, by by-passing me in a fundamental question of the Administration of Justice which did not concern me formally, but which concerned me as a jurist and as a human being. I could not assume the responsibility and I offered him my resignation.
Thierack was very angry and said, "I shall decide the day when you will leave the office. In saying that he referred to the compulsion to which all of us were subject in time of war, that is to say, the compulsion of not being able to leave our service voluntarily, He then added ironically, "for the rest -- in the future you will have nothing to do with penal matters even when I am away for I have already asked Lammers to appoint a second under-secretory, and I shall got some help that way."
I mentioned these facts briefly in another connection this morning.
Subsequently I had nothing to do with the ordinance. I merely read that later, on the first of July 1943 with both provisions it took effect. I felt unfree, and from that time on I stuck all the more to the one task, which still remained to me, that is, the task of the administration of justice proper; the strengthening of the judiciary.
Q. We are now coming to a new point. Would you please tell us something about your relationship with the Party, in particular with the head of the Party Chancellery, Martin Bormann?
A. I had very little to do with Martin Bormann. I only met him once; that was when I went to see Hitler at the Fuehrer's headquarters. His attitude toward me was expressed only in a few matters concerning personnel problems, for his chief interest, naturally, was devoted to penal law in the Administration of Justice and I had no contacts with him there.
I have to assume for certain that ho knew about my memorandum to Hitler, because he was in Hitler's permanent entourage. Therefore, for he certainly was not stupid, he must have gathered from that memorandum, if those plans were to become a reality, what dangers they would have meant for his position. To restate that here briefly, I had asked that no intermediary authority should exist between Hitler and the Administration of Justice. Therefore, his position in particular would have been jeopardized seriously by that. He knew from my suggestion that I wanted the judge to have authority which would enable him to exercise criticism on the Party. Furthermore-- and this was an absolute exception for Bormann---there was the manner in which my appointment was made. I have described here the way in which I was appointed, via Bormann's brother and Albrecht. Martin Bormann was bound to consider that way of making an appointment as a violation of the circle which Martin Bormann had placed around Hitler, for it had not occurred for years that anybody had access to Hitler without Martin Bormann being present.
Consequently, in the course of years, his position of power became stronger every year.
Due to that general attitude he was interested in removing me and my assistants at the earliest possible moment. That was expressed openly only in some cases, cases that concerned personnel matters. I happen to remember two such cases, and I remember them because he wrote to me, and Thierack there upon forbade me to sign any letters to the head of the Party Chancellery.
There was one case which has been mentioned here by the witness Miethsam. That was the case where a judge had made a Jew swear an oath and had therefore been excluded from the Party by the Gau Court. I had lodged a complaint with Bormann and the Gau Court that a judge had been attacked by the Party for an action taken as a judge.
Q. May I interrupt you. Dr. Rothenberger?
DR. WANDENSCHNEIDER: For the information of the Court, this is the testimony by Miethsam, and it is in the transcript at page 4885 in the English text.
Q. (Continuing) Would you continue please, Dr. Rothenberger?
A. The second case which I happen to remember is this: Bormann had the Ministry of Justice -- and the case came into my hands -- that a judge, who had taken part in a Roman Catholic procession, should be punished, or pensioned - I cannot remember which. In a letter to Bormann I energetically opposed this action. He thereupon asked Thierack that in the future I was not to deal with letters to him, and I no longer did so. I never had any other points of contact with Bormann.