That is how it happened that the indictment was filed with me in my apartment during the night, that is to say, in a very unusual manner.
Subsequently the summons was issued, the appointment of defense counsel and finally the hour for the opening of the trial was set. We had scheduled it for 11 o'clock in the morning when all the participants, including the defendants, had waived the time limit regarding the summoning. When the session opened Hitler was no longer in Nurnberg at all because during the morning of the 18 of December he had already left Nurnberg again.
The actual conditions are thus quite the opposite from the way they were described here so far. In what way Hitler then, during the further course of affairs, that is to say, regarding the clemency question, after the sentence was pronounced, continued to interfere in the case I do not know. I had nothing to do with it.
THE PRESIDENT: When was the judgment rendered, the 18th?
THE WITNESS: The judgment was rendered at five o'clock in the afternoon.
THE PRESIDENT: Of the 18th?
THE WITNESS: The session began at 11 o'clock. There was a recess of two hours and at five o'clock in the afternoon the judgment was rendered. The session itself was carried out as every other session. Both defendants confessed to the fullest extent.
DR. KQESSL: We shall speak about this case again in another connection since other wrong description were also given about this case.
BY DR. KOESSL:
Q. Witness, when was Streicher removed from his office as Gauleiter?
A. Streicher was removed from his office on the turn of the year 1939-40.
Q. The last time you spoke to Streicher was at the execution of Heller?
A. Yes, That is, on the 18 of December, 1938, around midnight.
Q. Did you find out any details about the reason for Streicher's removal from office?
A. There were many rumors about this, but I hardly believe that the Court is interested in this.
Q. The witness Gross, on the 30 of April in the afternoon, reported that on a business trip you told him - and I quote - "that you had been invited to Streicher or had visited him on his estate."
That is page 2,864 of the English transcript. Were you ever on Streicher's estate?
A. Never in my life.
Q. Did he invite you there?
A. He did not invite me either, ever.
Q. Do you know where Streicher stayed after he was banned from Nurnberg?
A. I knew that he was on an estate near Nurnberg and that the estate belonged to him.
Q. Can you name the place?
A. I know neither the name of the place nor can I describe the place. I think they were always talking about the area around Cadolzburg.
Q. You did not enter the place?
A. I never entered it in my life.
Q. Do you have any reason to be grateful to the Party and to Streicher in your official or private life?
A. No, not even the dirt under the nail.
Q. Did you ever correspond with Streicher in a pleasant or unpleasant manner?
A. Not even a letter did I write to him, not one letter.
Q. Did Streicher ever call you by telephone?
A. Never.
Q. Do you have any award from Streicher - a book or something like that?
A. No.
Q. Did you ever see Streicher in the Blaue Traube Restaurant?
A. No.
Q. Who was Karl Holz?
A. Holz was the deputy Gauleiter.
Q. When did you see Holz for the first time?
A. Holz was in that party at Streicher's garden -- where I was fetched once.
Q. What happened to Holz?
A. Holz, who during the Aryanization measures in 1938-1939 was involved somehow, was drafted during the war, and until about the middle of 1942 he was participating actively in the war. He fell in action in the battle for Nurnberg.
THE PRESIDENT: The Tribunal will recess for fifteen minutes.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
DR. KOESSL: May I continue with my examination?
BY DR. KOESSL:
Q: Witness, during the time when you paid a visit to Streicher in his garden, did you see Holz between that time and his return from the front, or did you talk to him?
A: I neither saw him nor spoke to him, nor did I correspond with him. We didn't even exchange one single letter.
Q: Was Holz accustomed to going to the Blaue Traube?
A: I can't remember that I saw him there one single time.
Q: Why was Holz brought back from the front?
A: Holz' return from the front was due to the fact that he was appointed to be Gauleiter of Franconia.
Q: Did you talk to him in connection with that appointment?
A: No.
Q: Were you there when the Gau was handed over to him?
A: No.
Q: When did you meet Holz for the first time, and what was the reason for that meeting?
A: You are referring to our meeting after his return from the front?
Q: Yes.
A: That was in the autumn of 1942, when he referred to me in connection with the Ramsbeck case, which has been mentioned here frequently. He asked me to come and see him. Later he, like myself, was present on the occasion of Thierack's visit -- about one week after that -- and he informed me that I was to be transferred to Berlin.
Q: Did you see him once again after that?
A: Apart from the occasions which I have already mentioned here, I did see Holz once again. That was in connection with the Grasser case, which has played a part here.
DR. KOESSL: The Grasser case is Exhibit 139; that case will be discussed separately.
A: (Continuing): Holz appeared in the courtroom after the opening of the session.
Q: Did you talk to Holz before, during, or after the session?
A: I talked to him neither before, during, nor after the session concerning the Grasser case. Never in all my life did I exchange one word with Holz over that case, neither orally nor in writing.
Q: Apart from the Ramsbeck case which we have mentioned, did you ever discuss any other penal or civil cases with Holz?
A: No.
Q: How was it that Holz made an appearance in the Grasser case?
A: As to the reason for his appearing there, I know nothing. All I can point out is that a report was made to the Justice Press Office of every case that was pending, and that report was passe on to the Gau leadership. Grasser was a man in whom the Gau leadership could be interested for the reason that his brother-in-law, Bessler, was the Gau office leader (Gauamtsleiter).
In this connection I would also like to point out that Grasser, on account of efforts made by the Gnu leadership of Franconia, was set free from a concentration camp approximately in 1938.
Q: The Grasser case, then, was the first case when Holz attended a session over which you presided?
A: At any rate, as for as I remember it was the first case. It is possible that he also attended a case which occurred when I was first in office in Nurnberg -that was the Schmidt-Heller case. It is possible that he attended that case as a member of the audience, because a number of people from the Gau leadership did attend that session. However, I don't know that for certain.
Q: At what time in the Grasser case -- to which we will refer later -- was the possibility of a death sentence under consideration?
A: That is clearly evident from the files. Shortly before the session, in the same way as I did in other cases, I examined the Grasser case in detail. On the basis of that examination -- that was about one or two days before the session -- I arrived at the conclusion that possibly the facts in the case might result in a death sentence being passed. That is evident from the files.
Q: How many penal cases came before the Special Court in 1942?
A: My estimate is 900 or 1000.
Q: The Katzenberger case also occurred in 1942?
A: YES, it did.
Q: Do you remember that the witness Seiler testified here under oath that Holz had attended that session?
That is English transcript page 1048.
What are your comments?
A: I know that is what the witness testified; that testimony is wrong. I know with absolute certainty that Holz did not play any part in the Katzenberger case, and, in particular, that he was not among the audience during the session.
Q: How do you know that?
A: I know that with such certainty because at the time when that session took place Holz was still at the front.
DR. KOESSL: I shall submit an affidavit on that matter.
Q: Do you know of any circumstances which could have caused the witness Gross to say that you had always been in contact with Gauleiter Holz and that you had received directives from him continuously?
English transcript page 2864.
A: I know of no circumstances on which Gross might have based himself in making that guess.
THE PRESIDENT: I am not sure that I understood your answer to a question a few moments ago. You said 900 to 1000 cases in the Special Court in 1942. Do you mean cases filed or cases tried?
THE WITNESS: Your Honor, all cases which came before the special Court, under law, had to be tried by the Special Court. Nine hundred to 1000 cases were tried before the Special Court. That is according to my recollection, and I believe I can prove that figure by files which will be submitted.
THE PRESIDENT: And you are referring to the Special Court at Nurnberg?
THE WITNESS: I am referring only to the Special Court at Nurnberg.
THE PRESIDENT: Thank you.
BY DR. KOESSL:
Q: Who was Zimmermann and what offices did he hold?
A: Zimmermann was the District Leader, the Kreisleiter of Nurnberg; and when Gauleiter Streicher had been sent into exile he - I believe it was in the early spring of 1940 -- was placed in charge of the direction of the Gau Franconia. As for his other functions, I don't know what they were.
Q: For how long did he deputize as Gau leader?
A: Until Holz returned from the front in the year 1942.
Q: The witness Eckert said literally, and I quote: "As far as I know, the reactions between Zimmermann, Haberkern, and Rothaug were fairly close." English transcript, page 2896.
How did you come to know Zimmermann, and what were your relations with him?
A: I have already pointed out that it was only in the course of 1940 that I met Zimmermann by accident when he was at the Blaue Traube.
Q: How often did he attend sessions of the Special Court when you were presiding judge, and do you know why he attended this sessions?
A: I cannot remember one single case of Zimmermann attending one of my sessions. However, it is possible that he attended at the case of Schmidt-Fasel, which has been discussed here several times.
Q: As to Haberkern, you have already testified that quite by accident, as a young assessor, you met him in 1926 and that for many years you had no contact with him. How and when did you hear that Haberkern was in Nurnberg?
A: That was in connection with the National Socialist change over in 1933. In those days his name often appeared in the newspapers, and that was how I discovered that he was in Nurnberg and that he played a political role.
v6854 Court No. III, Case No. 3.
Q You have already said that you did not resume contact, not even when against your will you were transferred to Schweinfurt? You have also given us your reasons. When and how was it that you renewed your relations with Haberkern?
A It was in 1938 as far as I recollect. One day Haberkern rang me up and asked whether I was that Rothaug who in 1926 had stayed in his home. I told him that I was that man, and he was very pleased and asked me to come to see him and his wife. They were the owners of the Hotel Blaue Traube, Nurnberg. I told him that I would go to see him some day, and one day I did go to see him. That was how I came to the Blaue Traube.
Q What were Haberkern's offices in Nurnberg and the Gau Frankonia?
A He was Gau Inspector, the leader of the catering organization, and he was also an Ortsgruppenleiter, a leader of a Local Group. I believe he was the Ortsgruppenleiter of the Old City.
Q Through this function did he have any contacts with your official position as a judge?
A No. The Gau Inspector, according to his official duties, has to take care of internal matters of the Party. As a leader of the catering trade organization all he could have done was to find me some room for my summer holidays. I had nothing to do with his Local Group because I belonged to a different group.
Q The witness Faerber on the 8th of April maintained that attorney Michel in the proceedings against the former Ortsgruppenleiter Ramsteck had stated that his client was indignant because he had himself observed or other people had observed in his behalf that the files on the penal case of Ramsteck at the Blaue Traube in the presence of Zimmermann had been returned to Rothaug. English transcript page 1674.
A I must point out that charge concerns quite an old matter. That charge was mentioned in the complaint which Holz made about me to the Reich Ministry of Justice in Berlin, and it was given great emphasis.
Court No. III, Case No. 3.
That charge had also been the subject of a comprehensive official investigation. As Faerber knows perfectly well it was discovered at that time that the charge made against me lacked all foundation and is untrue. It is also untrue that Attorney Michel at any time made such a complaint to me at an open session which I was the presiding judge. That is evidenced from the mere fact that in that case I immediately would have made that charge the subject of a disciplinary proceeding against myself. I would have been bound to do so, and in particular, that matter, if it had been untrue, would have resulted in consequences for attorney Michel; but none of that all happened.
Q Were the Ramsteck files handed to you at the Blaue Traube?
A They never were at the Blaue Traube.
Q Did you ever receive the wishes of Gauleiter through Haberkern concerning any trial that was pending?
A I did not even hear the opinions of the Gauleadership, nor can I remember a single case where the Gauleadership of Frankonia might have displayed any interest apart from the case which has already been mentioned of Stegmann, the SS-Gruppenfuehrer. In other words, such influence was never taken either directly or indirectly.
Q According to Doebig in the Ramsteck case, you were told that the Gau Leadership was not satisfied.
A Doebig did make a remark of that kind (in the transcript, Page 1866). To put it briefly, these were the facts. When the Ramsteck case had been decided upon, and it was sometime after that decision had been arrived at, Holz asked me to go to see him to reproach me on certain things. He described the verdict as a legal murder and asked me for an explanation as to what my plans were for the setting of that matter once and for all. I then told him that I was not worrying about that at all, but that I considered the verdict right for the rest, the Reich Supreme Court, too, had made the decision of the same kind.
Q You meant to say decided, you did say appeared.
Court No. III, Case No. 3.
A Yes, I did mean "decided." He told me that was the same idiotic nonsense as my case, and he became very rude. I told him that there was no point in discussing the matter on this basis. If he believed that criticism might be made, he had better approach the Reich Ministry of Justice. He did that, and wrote out a complaint of about 8 pages which he sent to the Reich Minister; and on those 8 pages, I was reproached with all sorts of things even to the extent of having blamed me for committing a legal murder.
Q Did the Gau Leadership in any case try to persuade you to pass a certain kind of verdict?
A The Gau Leadership did not do that in one single case.
Q The witness Elkar, English transcript page 2896 speaks about -
THE PRESIDENT: What page?
DR. KOESSL: 2896.
BY DR. KOESSL:
Q He mentioned that Haberkern above all, in legal questions, relied on the advice and the actions of Rothaug. Can you remember whether and in what cases Haberkern asked you for legal advice?
A with reference to the statements made by that witness, I thought about all those things for weeks, and I wondered whether at any time and in any connection Haberkern had asked me for my legal advice. I arrived at the conclusion that I cannot remember one single case in which Haberkern asked me for my legal advice, nor can I bring back to my memory any connections, any contacts where he might have been dependent on such advice from me for after all it would not have been a crime if he had put a question to me or to hear my opinion on the matter; but I cannot remember any incident of that kind whatsoever. There is only one point, and that referred to a personal matter. In connection with that, I have remembered something of that kind. Haberkern and his meat factory got involved in insolvency proceedings and finally a forced settlement was made. According to that forced settlement of the debts, he would only have had to pay out a certain percentage to the creditors. But subsequently Court No. III, Case, No. 3.one creditor asked for his debts to be paid out to him in full.
Haberkern called on me and asked me as to what attitude he was to adopt.
THE PRESIDENT: We don't care to hear concerning Haberkern's debts or any advice that may have been given to him, if any.
Q Witness, did the Party Offices in Party affairs have their own legal consultants?
A In this connection, one must point out that every Party Office, even the Ortsgruppenleiter, the leaders of the local groups, had their own legal offices. I had nothing to do with that matter.
Q. When were matters concerning legal questions brought to you?
A. Only if simultaneously they affected the interests of the Jurists League, and even then only if they affected the interests of the Gau Group for judges and public prosecutors.
Q. Did the Gauleitung take any interest in the general administration of justice?
A. I never noticed that the Gauleitung of Frankenia ever took any interest in the development of the legal situation.
Q. Did the legal situation play a decisive part in the Gauleitung?
A. I novel noticed anything of that sort.
Q. At the table at the Blaue Traube that has been mentioned here so often were there ever any discussions which have loon laid down previously ?
A. May I summarize my statement and perhaps say for the last time that I went to the Blaue Traube with the same intentions that other people had when they went there, and with which other people are in the habit of going to other pubs. As for conferences with agendas, they weren't held there for the simple reason that that would have been parliamentary. I met other people there, too, but I didn't meet anybody who went there with any political aims.
Q. Were official matters discussed there?
A. Not official, though Party matters were discussed there; but there, as I think happened in these days at every table in every pub, political things were discussed and the war was discussed. If somebody were task me today what we talked about, I would not be able to give an account of only one trend of ideas that we discussed there.
Q. Did you ever go to Haberkern with your own affairs, that is to say, to get any of your own wishes of a personal nature fulfilled?
A. I never bothered Haberkern on any matter of that kind.
Q. Do you know whether other people from your entourage asked Haberkern for his help on their own behalf?
A. I heard that they did.
Q. The witnesses Faerber and Elkar are of importance. They were examined here. Elkart Ins given an affidavit, Exhibit 411. Faerber had given an affidavit, number 151. The examination of Faerber is on page 1312 up to page 1466, and pages 1576 to 1546 in the English transcript. Elkar testimony is on page 2374 following in the English transcript. Before we discuss those matters, would you tell us what your relations were at an earlier time with these men? When did you make Faerber's acquaintance?
A. That was in 1937 when I was transferred from Frankfurt to Nurnberg. Faeber at that time was public prosecutor with the prosecution of Nurnberg. He was employed excusively in political criminal cases, that is to say, we immediately had official business to discuss.
Q. How did you yet on with him?
A. I was on excellent terms with him. His attitude in official matters was exemplary. He was industrious, he was conscientious, he was devoted to the cause, he had an excellent knowledge of the law, and he had a very good knowledge of the cases and decisions of the Reich Supreme Court. He was easy from a personal point of view, he was frank, open, and between him and myself there was confidence, and as far as I am concerned, it was honest confidence. And that confidence existed not only in official matters, but also in all other questions which eifected both of us. We were what is called "One heart and one soul." The only thing that I noticed was the fact that he was busy-body, and that his ears were aether long. By that I mean to say that inside the Palace of Justice there warn nothing he didn't come to hear about. He was informed about everything, and he was inclined to be critical of others; but I didn't think that was too serious, but I just thought he liked to make himself important. I didn't think ho had any evil intentions, and in effect, nothing much could happen because from the very beginning we reduced all the things he brought before me by 50%. He was always inclined to twist things m a certain way, but as I said, we didn't take that seriously.
Q. What did one think of his political reliability?
A. There were never any doubts about Faerber as concerns his political reliability, and by that I want to say that he, just like the rest of us, had a positive attitude toward the National-Socialist State. Naturally that did not exclude the fact that in one question or another, even in basic questions, too, he could have been of a different opinion, but that is natural. That we considered him politically reliable is evident not only from the fact that he was continuously employed on political penal cases. There were never any arguments in connection with politics. When I was asked by the Gauwalter to recommend a man as an assistant for the Office for Racial Policy of the Gau Leadership, I talked to Faerber. Faerber immediately, said that he would be willing and he said he would rather do that than what he had bone before; and as far as I know he did become assistant in the racial Office. And also from the other talks I had with him, I never gained the impression that he was a person who was against the Nazi Party. For example, he told me, and he told my wife, to, that his two daughters whom I knew were to go to universities so that they could eventually join the NS organizations in their Professions. Those were his ideas, and they were ideas about which he talked to me, and he thought along the same lines.
THE PRESIDENT: You have sufficiently developed the character sketch of the former witness. Let's get along to something else.
Q. The witness Faerber, English transcript page 1323, spoke of your connections with Haberkern and also mentioned it in connection with the Ludendorf movement. The Ludendorf movement was said to have been opposed to the Nazi Party. He said about in general and it is said, and I quote: "That there was a particularly close connection between Herr Rothaug and the Gau Inspector Haberker, and that close relation wcs the main reason why on tho part of the higher Party authorities no objections were made against Herr Rothaug."
Faerber says in describing a conversation with Denzler, and I quote: "That he, Denzler, had to remove certain difficulties among higher Party authorities, assertions against Rothaug because Rothaug was a follower of Ludendorf. However, he, Herr Denzler, had succeeded in convincing the Party authorities that Herr Rothaug, in spite of the fact that he was an adherent of the Ludendorf movement, was a judge for the Special Court of Nurnberg who was certainly working in the interest of the Party." Would you please explain the contradictions in the testimony of the witness Faerber who on the one hand said you were heralded into Nurnberg with Political music accompaniment, and who oh the other hand mentioned that you had had difficulties with the higher Party authorities for the overcoming of which you had alleged; required the aid of Denzler ad Haberkern?
A. I know nothing about those facts that Faerber mentioned here but I do know that such criticism about me was made and that criticism was levelled at me for the following reason: In connection with Oschey appointment to be Gauhauptstellenleiter - Main Gau Office Leader- a Gauleiter form the Reich Leadership of the Nazi Party appeared. He said that with the Reich leadership there were political misgivings about me. I was an adherent of Ludendorf and consequently I repudiated the ideology of the Nazi Party.
Oschey immediately told me about that and I know for certain that I informed Faerber about it. He mentioned it himself and mentioned my statement: "I am therefore not a revolutionary but a rebel." But the attempt to get rid of me by sending me to the East, that is not connected with this matter.
When, in 1937, I came to Nurnberg, for years I had had no contact with Haberkern for he didn't ever, know where I was. Consequently, he can have no connection with the criticism which is supposed to have been connected with my transfer to Nurnberg, I, myself took no steps concerning the alleged misgivings about the Reich leadership of the NSDAP on my behalf. Whether Denzler did wake any steps I don't know. That I was a follower of the Luddendorf movement was generally known, for I told everybody about it until the time of the castastrophe. I told everybody who wanted to hear about it. However, that had nothing to do with my official position. For in that position I had to obey the orders of the law, and I did not engage in sabotage.
Q. According to Faerber's account, considerable changes appear to have occurred in the relations between Ludendorf and the Party when Hitler called on Ludendorf in Munich. From that tine onwards, it had become noticeable that the Party was willing to receive followers of the Ludendorf movement.
A. Faerber mentioned that during his examination. In my view, no particular importance is to be attached to those facts.
THE PRESIDENT: The Tribunal is not interested in any further testimony concerning the Ludendorf movement. The Tribunal also suggests to you that after all it is conduct, whether that conduct be guilty conduct or innocent conduct, that the Tribunal is concerned with. We have hard a great deal about the relationship between Haberkern and this witness. We suggest that that has been sufficiently covered. It is impossible for any witness to more categorically deny any connection between Haberkern and Rothaug's official conduct than Rothaug has already done. He has completely denied it. Repetition won't aid his case at all. Let us direct our attention a little more to the issues of conduct.
DR. KOESSL: May it please the Court, I have only referred to these questions to the extent to which they had previously been discussed.
THE PRESIDENT: You need not explain any further. We have permitted you to inquire at great length concerning these personal relationships.
BY DR. KOESSL:
Q. On Page 1356 of the English transcript the witness Faerber mentions that you were a member of the Tanneberg League. Is thatright?
A. I was never a member of the Tannenberg League.
Q. When the witness Faerber mentioned the doubts which the Reich Leadership harbored for your political reliability, he said that the SD took, an interest in your remaining at Nurnberg. From the account of the witness Elkart, English transcript Page 2888, we know that approximately in May, 1940, you were called to a conference which was attended by Doebig, Denz and the SS section leader Friedrich, and that in that way you got into contact with the SD. What was the topic of those discussions when you joined in?
A. That matter was rather different. To begin with, Elkar came to me at my office. Then Obersturmfanniuehrer Friedrich called and also a Standarten Fuehrer, whose name I no longer remember.
All those three men belonged to the SS. Those three men told me that whey had come to call on me because they wanted to introduce themselves to me and they wanted to try and establish good relations between their office and the administration of Justice authorities.
Conditions in general were then discussed, in particular the fact that the Administration of Justice in certain press organs, above all the Schwarze Corps, was being subjected to continuous attacks. They considered that state of affairs undesirable, all the more so as they also knew that those articles were generally written on the basis of one sided information. They also asked for my opinion as to what I would think of all questions which arose here in Nurnberg concerning the administration of Justice, if they were to be dealt with, to start with, on a lower level before a report being made on a higher level. I thought what was a good idea. They asked me whether I would care to be the mediator. I suggested District Court of appeals and the General Public Prosecutor since, as it is, he has told me that they intended to call on those officials, to.
I would like to point out that the three of them had only called on me because Elkar had brought them along. As you know. Elkar has been with me for training as a Referendar. At tat time I had no idea what the SD was about and what its functions were. The conference with Doebie and Denz was along the sane lines and both men say the point and agreed that it was quite a reasonable plan which had been submitted to them. They suggested that it might be a good thing to let these matters be dealt with through me because the cases which occurred with me were cases which were to be treated later.
I would subsequently asked to attend that conference. I, myself and I think it would have been the same with even human being couldn't imagine, or anyway, couldn't imagine very well what was going to happen at that conference. That was the basis on which developments went along.