A. Contrary to the indictment and contrary to the application made by the prosecutor at the trial, those sentences were passed. When I heard of such jurisdiction, I did not at all approve of it. Without having the files of the cases given to me, it is very difficult for me to say what steps I actually had taken or what steps my representative took when he should have dealt with such cases. In the case of Meslinski and Stefanowitsch those two were condemned to death, whereas Maschnik and Denschewski got away with prison terms. If in other words, in the case of Denschewski and of Meslinski, I possibly did not suggest a clemency plea, my reasons must have been these. In both cases, according to the findings of the court regarding the facts more had come out than simply that the defendants had escaped from their place of work for the purpose of escaping to a foreign country. Meslinski besides, when he confronted German Border officers at the German border, attacked that officer, whereas Stefanowitsch had tried once before to cross the Danish border and moreover he had persuaded another person to leave his place of work. In view of these facts, if I did not make the suggestion for a clemency plea, I possibly assumed that such a plea would have no success.
Q. Witness, earlier you mentioned that as far as possible you transferred cases to the lower courts and that whenever possibly you suggested clemency pleas; did you adhere to that practice until the last moment?
A. Yes, I did , but in view of the propaganda which was in fullest swing, for a severe course during the total war and in view of the the Thierack decrees, which were falling one upon the other, I was less and less frequently able to succeed with my intentions. In part that was due to my dependant position as a public prosecutor, in part it was also due to the fact that it was very difficult to do anything with such persons as Thierack and Freisler.
Q. Why did you not draw your consequences then?
A. Since my attempt on 30 September 1941 to leave my office, an office which I had not tried to obtain and which I was ordered to assume by my minister, since that attempt had failed, I had to put up with that state of affairs, all the more so as my friends, Dr. Sack and Lehmann from the High Command advised me to stay. Later on I repeat edly asked myself whether I should not force my resignation. I did not do it because of the reason that I considered my self irreplaceable and I did not do so to support the Hitler regime and the Thierack administration of justice. I stayed in this case because I considered it the duty of every civil servant and I still consider it the duty of every civil servant now not to let down his native country at the moment of extreme danger and to stay on his post as long as he may still hope to be of use. With that hope I stayed entrusting to the experience and judgment which I had acquired in my long period of service.
Q. I have now concluded my direct examination.
BY DR. ORTH for the Defendant Altstoetter:
Q. I would like to put three questions to the witness. Witness, the prosecution has in reduced document NG-7-2, Exhibit 481, which is a letter by the defendant Altstoetter, which refers to sentences passed on defendants who committed crimes in Southern Corinthia. The letter says that the minister had taken care of the matter and had issued certain directives to the Chief Reich Prosecutor of the People's Court; can you remember that matter?
A. Yes.
Q. Would you please give us a brief account?
A. In Southern Carinthis, that is to say in that part of Austria, which at that time belonged to the German Reich, bands had formed of German soldiers who had deserted and these bands constituted grave danger to the population, because they attacked the farms, set fire to them and committed robbery. In some cases the bands were supported by the local population.
Some of those people who had given support to the bands had been arrested and investigations had been conducted and the result had been handed to the Reich prosecution Office. In view of the fact that the Reich prosecution was heavily overburdened with work no indictments had been filed.
During the conference in May of 1944 at Kochem Castle, I don't remember the exact date, one evening the minister asked me to go to see him in his private room. Several other people from the Ministry of Justice were there, among the defendant Altstoetter. The Minister in a very unfriendly manner told me that the Gauleiter in Carinthis had complained that those proceedings had been delayed. I told him that I knew all about these proceedings and they would be dealt with with whatever speed which the work at the Reich Prosecution office permitted. As far as I remember, the minister then requested that the letter be written to the Gauleiter to calm him down.
Q. Did Altstoetter deal with that matter in any official capacity?
A. According to the distribution of work at the ministry, he did not.
Q. Thank you.
THE PRESIDENT: You have about three minutes, if you will watch the clock you may proceed.
BY DR. KUBUSCHOK: (Counsel for the defendant Schlegelberger)
Q. First of all, I would like to ask you a question which refers to the defendant Schlegelberger. During the direct examination, you spoke about the conversation you had at the end of September, 1941, in the matter of the Elias case; could you give us some particulars about that case.
A. You mean about the contents of that conference?
Q. Yes, I mean the conference you had with Schlegelberger about the Elias case; what attitude did Schlegelberger have about that case, did he agree with the solution which had been reached; give us particulars if you should know them please?
A. When I had interrupted my trip and called on the defendant Schlegelberger, it was about lunch time on 3 September 1941, I found him in a state of great excitement about Thierack's attitude. To begin with, he asked me to make an attempt to reach Thierack at the People's Court and to demand of him that he should take me along with him to Prague as the chief Reich prosecutor. The attempt failed because the plane had already had already left with the Senate. I then went to see Schlegelberger again and in my presence he rang up Under Secretary Stuckart, who I believe was competent for administrative matters in Bohemia and Moravia. Schlegelberger asked him to demand of Heydrich in Schlegelberger's name that the chief reich prosecutor should be reinstituted in his rights. After a little while Stuckart phoned back and said that had been refused by Heydrich.
I then asked the defendant Schlegelberger at once to let me resign from my office as nobody could expect of me that after I had been injured in that way I should continue in office, and that at the side of Thierack, who, by his unusually treacherous attitude had caused this breach. The defendant Schlegelberger kindly, but with great decision, told me that he could not comply with my wishes. I was irreplaceable in my office, and I simply had to make that sacrifice to the Administration of Justice.
Q I have furthermore two questions which refer to the defendant von Ammon. During your examination you several times mentioned that you dealt with suggestions about the treatment of NN matters and approached Herr von Ammon in such matters. Why was it Ammon to whom you turned? Was it that you considered him the competent person to deal with NN matters at the Reich Ministry of Justice?
A No, I did not, for the defendant von Ammon had no authority for independent decision, but I knew that he as one says with us, was a decent guy, and because in these two cases I wanted to see to it that a more lenient attitude was adopted. I knew that he would work towards that end, and that was why I approached him.
Q Did you, during your period of office as Chief Reich Prosecutor, ever receive a letter from the Reich Ministry of Justice which bore the signature of von Ammon?
A No.
DR. KUBUSCHOK: Thank you. That is all.
THE PRESIDENT: The time has expired; we will recess for fifteen minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY DR. SCHILF (Counsel for the defendant Klemm):
Q: Witness, you were present in the courtroom when the defendant Klemm was in the witness box. He commented on how, in 1942, he saw Thierack. This concerned his remark that in the Party Chancellery he had to give several opinions on personnel. That was in 1942. I now ask you, how did Thierack, as President of the People's Court, conduct his trials? Did he try cases objectively and factually?
MR. KING: One moment, please. I object to that question, your Honor. We have had testimony without end on how these trials were conducted. The question is too general to elicit any sort of useful answer for our purposes here.
THE PRESIDENT: What is the purpose of counsel in inquiring concerning the conduct of Thierack? We are in very serious doubt as to the propriety of the question. Now will you state it briefly? Thierack is not a defendant here, and we do not see the relevancy of your question.
DR. SCHILF: The defendant Klemm, during direct examination, was asked by me about this, and during the cross-examination the same question again arose, that in 1942, when he was in the Party Chancellery, he gave a personal opinion about several jurists. During cross-examination he was asked whether he had given a favorable judgment about Thierack -- that was in 1942 -and this was in connection with the fact that Thierack might have been a candidate for the post of Minister of Justice. The defendant Klemm, during cross-examination, affirmed this question.
THE PRESIDENT: We permit you to take a brief answer on that point.
Mr. Witness, you can answer briefly as to the manner in which Thierack conducted his cases, for the purpose indicated.
THE WITNESS: But I have to answer it completely.
THE PRESIDENT: No, you don't have to answer it completely, no.
THE WITNESS: In 1940 or 1941 I was once present during a session when Thierack was presiding judge, and I was interested in this case, because it was a case of treason. I did not have anything to object to in this manner of conducting the trial, and the defendant was permitted to have the last word. The oral opinion, however, contained phrases as are also indicated in documents which the prosecution has occasionally submitted here.
BY DR. SCHILF:
Q: Did you ever hear complaints about Thierack's manner of conducting the trial, especially that he restricted the defense?
A: I did not, but I would not have been the competent office for receiving such complaints.
DR. SCHILF: I have no further questions.
DR. WANDSCHNEIDER (Counsel for the defendant Rothenberger): May I address three brief questions to the witness?
BY DR. WANDSCHNEIDER:
Q: Witness, in the discussions which you had with Thierack in the matter of the People's Court, did Dr. Rothenberger ever participate?
A: When I was ordered to go to see Thierack in order to receive instructions or report matters to him in which he was interested, in the case of such discussions the defendant Rothenberger was never present.
Q: Thank you. Did you yourself carry on negotiations with Dr. Rothenberger about questions of personnel policy or questions of criminal law?
A: You mean in matters regarding the People's Court?
Q: Yes.
A: As to penalty cases which concerned the People's Court, I did not discuss those with the defendant Rothenberger, with the exception of one case. That concerned a complaint about the division of business made by Freisler and, on order of Thierack, I turned to Rothenberger with this complaint. He accepted my report and promised to speak to Thierack and see to it that something would be done about it.
Q: Witness, in the Ploetzensee case, did Dr. Rothenberger have anything to do with the execution of the sentence?
A: I am not in a position to know that; I only made the following observation. The order that I should keep out of that affair was given by Thierack from his apartment by telephone, and this was apparently due to the fact that two days before I had suggested to him that he should transfer the prisoners to Brandenburg because there they would be safe from the air raids. To what extent he further intervened, from his apartment, I don't know, of course.
DR. WANDSCHNEIDER: Thank you very much.
BY DR. SCHWARZ (Counsel for defendant Petersen):
Q Witness, did you know the defendant Petersen personally before this trial here?
A No.
Q Witness, during your activity as chief Reich Prosecutor at the People's Court did you hear that within the judiciary and the office of the Reich Public Prosecution there was considerable opposition against Freisler, who was then the chief presiding judge of the People's Court?
AAll judges and prosecutors who knew anything about their business agreed that it would be best if this man would disappear, and they also expressed this opinion.
Q Witness, did you know his two reporting judges, People's Court Judges Laemmle and Graeulich?
A I knew them.
Q Did you also know that these two Berichterstatter, reporting judges, turned against Freisler?
A They never made any secret of their dislike of the person of Freisler, not to me, either.
DR. SCHWARZ: Thank you very much.
BY DR. KOESSL (For the defendant Rothaug):
Q Witness, when did you first meet Rothaug?
A I saw Rothaug for the first time when on the first of June, 1943, he reported to me to assume his office.
Q Did you at any time find out anything about his official activity in Nurnberg, and if so, what?
AAbout his official activity in Nurnberg I was informed only by this trial. In Berlin I didn't hear anything about it. Nothing could be seen about if from his personnel files, either.
Q What experiences did you yourself make with him when he worked in your office?
A First I had the understandable worry that a man who for more than ten years been an independent presiding judge, would have difficulty in fitting into an office like the public prosecution, but Rothaug did adjust himself and never made any difficulties for me.
He was a very diligent, quick worker, and what I attached special importance to, was that he had an excellent knowledge of the files in every single case.
Q Was Rothaug a severe man?
A While he was working for me I certainly did not notice that he was excessively severe, and it may make use of a comparison, if I compare him with Ministerial counsellor Franfke who was in charge of the cases of undermining of military morale in the Ministry of Justice, I would even have to say that he was moderate.
Q Who was Franfke?
A I already said that Franfke was the Ministerial counsellor who, as closest collaborator of Thierack, was in charge of cases of undermining military morale in the Ministry of Justice. If one wants to know what he looked like and what his attitude was, it is done best by reading Exhibit 474. He wrote that. And decrees of that nature went to the subordinate agencies from him in large number.
Q Did Rothaug ever make a suggestion to you in order to stem the flood of cases of undermining of military morale?
A He once made the suggestion that a special committee of experts should be employed which would examine the case of undermining of military morale for the entire Reich under the point of view as to which cases were actually so serious that the People's Court would have to keep them. I once brought this suggestion up for discussion in the Ministry of Justice. However, it was refused because the Ministry of Justice did not want to give up being in charge of these cases.
Q What did this suggestion aim at? That is to say, what was the main reason which Rothaug stated for this suggestion?
A I told you that; a quick selection of the really important cases.
Q These efforts, however, had no success?
A No; I said that, too.
Q In your affidavit Exhibit 126 you made certain objections against Rothaug's activity.
Can you explain them in more detail?
A Yes. Rothaug, in two very important points, in his work first was not up to what I was used to. In indictments and in orders, transferring a case to another court, beyond the actual facts, very extensively, an evaluation of the deed and the personality of the offender was contained such as a judge, for example, would later describe it in the opinion. Occasionally these statements also contained a political coloration. Because I was afraid that the person who read this indictment or this transfer, that is the Public Prosecutor who would attend the session, or the General Public Prosecutor who would later have to work on the case, could be influenced in advance in his judgment, there I requested Rothaug in a discussion which, however, was not conducted in a sharp form, to comply with the usage which prevailed in our office, and he did so.
Q Did Rothaug advance material reasons for his conception, and perhaps only because he was new in his office and because he was so burdened with work and perhaps because he did not know the habits of the office?
THE PRESIDENT: I think you should ask questions instead of suggesting the answer in that manner. You arc putting the answer in the witness's mouth to an unusual degree.
BY DR. KOESSL:
Q Did Rothaug advance material reasons for his suggestion?
A Counsel, I have already told you. Probably that was in accordance with his habit as a former judge.
Q Do you remember under what points of view the division for undermining of military morale matters was divided between Rothaug and Franzke?
A When in the spring of 1942 it became apparent that even an independent department was not able to cope with the large mass of work, I divided it and, as was our usual practice, so that the matter would be done in accordance with the material, that is objectively, in a way that one person worked on even numbers and the other on the uneven numbers. One was Rothaug and one was Franzke.
Q Did any one of the assistants who were given to Rothaug complain that Rothaug terrorized him or that he did not like to be in Rothaug's Division?
A I can only answer that as follows, that no prosecutor asked to be transferred from that division.
Q Did tho Reich Public Prosecutor in cases of undermining of military morale take into account the occasional prejudice of the local police officers and the denunciations?
A We had every cause to do so, and I already told the Tribunal here tho example from Karlsbad.
Q Did Rothaug report cases to you in which he had misgivings in the direction just stated and in so doing what a suggestion did he make to you?
A Since ho know every file very well, he realized very soon these weaknesses of individual investigations and he repeatedly suggested to mo to clarify those questions through personal interrogations, and I let him do that.
Q In that connection do you still remember a case from Nurnberg in which a wholesale dealer was denounced by a competitor?
A Yes.
Q Can you remember a case from tho territory of Hassfurt where a teacher and a Catholic priest were arrested by the Gestapo?
A Without having the files of that case submitted to me I cannot state any details from memory. However, I do know that in this case Rothaug went to tho place of action in that case.
Q Can you also confirm that there was a similar case in Naumburg?
A What did you say? Where?
Q Naumburg. Naumburg.
A Yes.
Q What do you know about the case von Braun in Ansbach? This case is mentioned in Exhibit 231.
A When the files of von Braun reached the Reich Public Prosecutor I put agree cross on them and immediately had tho case reported on to me.
Rothaug reported, he suggested to mo since he considered that it was very doubtful whether undermining of military morale existed in this case, and I agreed with him, he suggested that we again undertake interrogations in the place of action in order to get some basis for returning this case to tho People's Court. Apparently that was possible only because tho Special Court had not referred the case to the People's Court, otherwise this manner of proceeding would not have been possible, but they had only adjourned. However, tho case was not checked because in the meantime we received the information that von Braun had committed suicide.
Q What do you know about the Dr. Treuter case in Bayreuth?
A The Dr. Treuter case I still remember very well, because the way he was treated by high Reich agencies was, I may say, horrifying.
Dr. Treuter was the chief physician of the Winifried Wagner Hospital in Bayreuth. He was charged with undermining of military morale. And when one read the file one felt immediately between the lines that denunciation played an important part. When this file was submitted to the Reich Public Prosecutor it was accompanied by an ordinance which was due to the direct interference by Hitler and which said approximately that the Reich Public Prosecution should immediately conduct the investigations personally, that the indictment should be filed very quickly and that a serious penalty should be asked for. In order to carry out these investigations I sent Rothaug to Bayreuth. He returned and, according to the interrogations which he had conducted, there was no doubt that the proceeding should be stopped. He also submitted to me a long and well-founded order to stop the proceedings and I approved it and sent it on to the Minister of Justice for decision, as I had to do in this case.
However, the Ministry of Justice repealed this order and instructed me to file an indictment and to file it because of the undermining of military morale, to bring about a trial in Bayreuth and to order the defendant Rothaug to be present during the trial as representative of the prosecution and to instruct him that he should try to effect that a death penalty will be pronounced.
Since at that time the connection between Berlin and Bayreuth, that is to say, the telephone connections were so bad, I, in spite of that order, left it absolutely up to the defendant Rothaug what application for penalty he wanted to make in the trial. He asked for acquittal and that is how the court decided.
DR. KOESSL: Thank you very much. May it please the Tribunal, the Tribunal has suggested that the cases of the presiding judges of the Special Courts should be presented as a whole at the conclusion of the submission of evidence by the defense. This suggestion made by the Tribunal -
THE PRESIDENT: May I interrupt you, please? It has come to our attention that some, at least of defense counsel, would oppose that change in the order of the trial. If you will simply state your position briefly the Court will be disposed to follow your wishes as to the order of trial. In other words, we are not disposed to change the order of trial unless all of the parties concerned agree to it. Do you desire that the original plan be carried out?
DR. KOESSL: I wanted to request to carry out the suggestion made by the High Tribunal and this for the reason that, first, because of the material connection of the Special Court cases. It would probably be the most sensible and material regulation to treat the presidents of the Special Courts as a group and I would like it also because the Rothaug case is the largest which, in comparison with Rothaug's neighbors, has to be treated more seriously because of the greatest difficulties in procuring -
THE PRESIDENT: You favor the suggestion made by the Court; is that correct?
DR. KOESSL: I want to request to carry out the suggestion made by the Tribunal.
THE PRESIDENT: Do any other counsel object to it?
DR. SCHWARTZ: Dr. Schwartz for the Defendant Petersen. I regret, although I see and understand the reasons that Dr. Koessl advanced, I have to object to that ruling. The defense of the defendant Petersen has made its plans in accordance with the ruling by the Tribunal at the beginning of the defense case. The Document Book was submitted only 3 or 4 days ago and will not be completed before approximately 3 weeks. Furthermore, there is a witness from the Russian Zone, whose arrival is not certain yet and probably one can not count upon it before the three weeks are up. Therefore, I have to request that the old ruling be maintained.
DR. TIPP: Dr. Tipp for Dr. Barnickel. Your Honor, if I under stood the Tribunal correctly before, Your Honor thought that this suggested new regulation could be carried out only if the rest of the defense counsel would be in agreement with it.
And as much as I can approve of and understand the reasons which my colleague Koessl advanced, I am not in a position to agree to this regulation for two reasons -
THE PRESIDENT: You need not state your reasons. There appear to be objections by counsel for two of the defendants to what was made only as a suggestion by the Tribunal. We, therefore, will follow the procedure which was outlined at the opening of the defense case. The Tribunal withdraws its suggestion with some regret. Is there any other direct examination of the defendant Lautz? There appears to be none. You may cross examine.
CROSS EXAMINATION BY MR. KING:
Q Mr. Lautz, let me say at the outset that I have no objection whatsoever if you wish to refer, during the cross examination, to the question and answer memorandum which you used during direct. If you think that will be of aid during cross you are, so far as I am concerned, welcome to keep it before you.
Dr. Lautz, you joined the party in May of 1933?
A On the first of May 1933.
Q You have told the Tribunal that membership in the party did not mean that you approved of the program of the party. May I ask you if that is true, if you didn't approve of it, why did you join?
A I said that I had not been of the opinion that joining the party meant that one approved of the program of the party entirely, as also formerly, when one joined political parties, one did not approve of their program in every point. When I joined the party I did not know either that a few years later, I believe in 1936, it would be required of party members that they would give a personal oath of allegiance to Hitler.
When I joined the party I did not know about that.
Q And in 1936 when that personal oath of allegiance to Hitler was required, by that time you were sold on the party platform, were you?
A I gave that assurance.
Q That does not answer my question. I asked you if in 1936 when you pledged an oath of allegiance and loyalty to Hitler if at that time you approved of the principles for which the party stood?
A The point of the racial program I did not approve of, at least I did not approve of the form in which it was carried out.
Q Well, did you approve of the racial program?
A I told you I did not approve of it.
Q Let me ask you if you approve of this party program before you became a member; at least before you pledged allegiance to Hitler did you approve of Point 4, which reads as follows:
"No one but members of the Nation may be citizen of the State. No one one but those with German blood may be members of the Nation. No Jew, therefore, may be a member of the Nation."
A Yes, I knew it, I also stated that I did not approve of it.
Q Then what do you mean when you said you did not approve of the methods of carrying it out; the racail policy; did you mean by that that you did approve or did not approve of it.
A When the party program in regard to that point was carried out, first of all it was limited to excluding the influence of the Jews by removing them from influential positions in the state and in the economy.
Q Is that all you have to say on that?
A That meant at that time not what happened in 1944 or 1945 later.
Q Let me point out to you, Dr. Lautz, that prior to September 20, 1939 the attitude of the party toward Jews in general was well known by everyone, certainly you could not have been unaware of what the party intended to do about the Jews, when you took office; there is no doubt about that.
A Well, I did not maintain that I did not know it.
Q In other words, you knew what the party was doing when you took office as chief prosecutor, on the subject of the Jews?
A Would you please tell me what you mean by saying what the party was doing.
Q Certainly, I will be glad to tell you. You knew of the excesses in 1938, did you not, against the Jews in which their property was confiscated, they were thrust into jail without any cause whatever except for the fact that they were Jews; you could not have helped knowing that; could you?
A Well, I knew it. I knew it because as chief prosecutor I was concerned with criminal cases which included these events.
Q Yes. You read "Mein Kampf" did you not, before or sometime in the early days?
A I read the book "Mein Kampf."
Q Now, you said in direct testimony that you did not know that the party wanted war. You, of course, read the party program. It did not occur to you, I suppose, that may of the points in the program if they were carried out would probably very conceivably lead to war?
A One really could not gather that from the points in the party program, that the leadership of the state would in carrying out these points let it come to the point of the war which we have just lived through, at least I Ad not think so.
Q You could get that ideal pretty clearly from "Mein Kampf"; could you not?
A Mr. Prosecutor, you have to consider that the book "Mein Kampf" was written in 1924 and by a man who was under arrest; moreover it is in accordance with political experience that statesmen when they come to power put things differently and act differently than they have written previously; when they are carrying out an office of the state, that is in accordance with other laws than the writing of propaganda.
Q So you did not take much stock in "Mein Kampf" on the point of war?
A If I should be frank, after I had read the book I put it out of my hands with disappointment as I compared it with Bismarck's "Ideas and Memoires." I still maintain the same opinion today.
Q When were you appointed to your job as Reich Chief Prosecutor of the People's Court in 1 July of 1939, you said you had no idea that war would break out, you had no idea Hitler wanted war before you took office, but in September of 1939 war had started, if you did not want to accept the office under war conditions why then did you permit yourself to be inaugurated into office after war was well under way?
A I can only answer that in the following way, Mr. Prosecutor. When on 1 July 1939 I received the document that appointed me to the position, I really did not know that two months later war would break out and I can explain that to you. Immediately after I had received my appointment I went to the hospital to have an operation carried out and I therefore also postponed my vacation as I wanted to take it in the fall. If I had known that war was going to break out in eight weeks, I would have done it the other way around.
Q And how do you mean you would have done it the other way around?
A That I would have taken my vacation first and would have made sure that I had a nice vacation before the war broke out, more clever people did that.
Q But, that did not in any way effect your decision to accept the job which had been offered to you?
A On 1 July 1939 the question, Mr. Prosecutor, was no longer whether I would accept the position or not, the question had been decided eight months before, but at that moment I received the appointing document with Hitler's signature and that finished the matter. According to the regulations at the time, I could have asked that I be dismissed from the service of the state without salary or pension; but I had no cause to do so. And, frankly, I did not have the means to take that course of action.
Q You mean you could not resign after war broke out?