, as I have just told you in a few brief sentences now, were absolutely sufficient to pronounce the death sentence.
And I still recall that the important point of view was --- and I remember it because I was interested -- that it could not matter in wartime what concrete intentions he had but that it was absolutely sufficient that the Pole could have counted upon the possibility that the Serb would join Tito's forces.
Q Please continue.
A We did not hold in any decisions of ourselves.
BY THE PRESIDENT:
Q May I ask you a question. Do you recall the name of the Pole in that case?
A Your Honor, at the moment I cannot recall it, but you can see it from the list of death sentences pronounced by the special courts, Nurnberg. Yes -- Kodak is the name of the case. The name Kodak is listed in the list of death sentences by the special court Nurnberg -under the name Kodak.
Q The death sentence wasn't pronounced by the special court, was it?
A First we sentenced him to three years in the penal camp. Then, there was a nullity plea, and then the Reich Supreme Court, contrary to the usual practice, did not refer the case back to us, but pronounced a death sentence itself because the facts which we had determined already made the death sentence appear so just that they did not consider it any more necessary to refer it back to us.
Q What you said was that it was in the list of death sentences pronounced by the special court, and the sentence was not pronounced by your court at all; was it?
A Yes, it is listed on that because the prosecution in Nurnberg executed it, but on the list itself it is noted expressly that we in the special court in Numberg did not pronounce the sentence, but the Reich Supreme Court did.
Q And could you give me the approximate date of that case?
A Your Honor, I believe it was in 1941 or 1942, but in the list the sentence is designated exactly.
THE PRESIDENT: Thank you.
DR. KOESSL: The list has the Exhibit No. 238 in the Prosecution Document Book III-L.
THE PRESIDENT: Thank you BY DR. KOESSL:
Q Witness, from a comparison of Ferber's and Elkar's testimony we can see that Elkar characterized your relationship with the SD as a supporting activity; whereas Ferber apparently wanted to make you a blind tool of the RSHA. Did your activity show the tendency which is ascribed to it by Elkar; or; does Berber's come closer to the tendency of your activity.
A I can that none bf these two tendencies dominated him in my case. Moreover, I cannot evaluate these two testimonies because otherwise the President of the Court will object.
THE PRESIDENT: Correct.
Q Now, we want to gain an insight into your basic attitude into the Polish question. If every case was not tried as every other case, nevertheless it lets one draw, or allows one to draw conclusions as to the basic attitude. Can you cite a case in which a Pole, because of a crime, according to Article I of the order on War Economy, was indicted but was finally acquitted?
A If I may be permitted, I would like in regard to the proceeding question to add something which may perhaps be of significance. I just remember that Elkar once made the statement as if the law against Poles was not so significant at all for our jurisdiction here in Nurnberg because previously already through the laws which existed, we had gotten the same results. The list of death sentences which is mentioned here shows an unequivocable answer to the problem that we have broached, for it proves that in fact through the promulgation of this law against Poles, a not inconsiderable increased severity did occur, and that was not surprising if one is familiar with the law against Poles, but we shall go into that question later on. In regard to the question I was asked last, I can refer to the case, the name of which has been mentioned already, Cudcich -- C-u-d-c-i-c-h. In this Cudcich case, the file of which we shall submit, this is a case of such sabotage against the economy -- economic sabotage. Cudcich was charged that as a shepherd in Roeding, during the war, he had destroyed a large number of sheep, and that his intention had been sabotage.
Q What was the result of the trial?
A I conducted the trial myself; the Poles was acquitted after extensive investigations.
Q When was this acquittal pronounced?
A I don't remember, but anyway it was after the law against Poles became effective.
Q Why was the Pole indicted under the war economy order and not under the law against Poles?
A The law against Poles at the time the indictment was filed was not in effect yet; that is, it had not been promulgated at all yet.
Q Can you cite another case or cases in which through extensive evidence during the trial the incorrectness of the charge in the indictment could be proven?
A We above all wanted to object to the representations in trials against Poles or against foreigners in general. The general impression is that we used not to ask for as much evidence in trials against foreigners as in cases of Germans, but this is absolutely not correct. Rather, the trials which were conducted were conducted under the same law as against Germans, even after the law against Poles had become effective. The evidence was presented with the same thoroughness and care by witnesses and experts, because already we ourselves were very much interested in seeing it established whether tendencies for sabotage existed at all; or, an acute danger existed for our situation. In one case the name of which, however, I cannot remember, a Pole was indicted in a mine; he had hit against the supporting beam of the ceiling as an act of sabotage in order to obstruct the path and in order to bring it to collapse. This would have endangered people, and, above all, the mine could not have operated for a long time. This proceeding, at least when I was presiding judge, was adjourned at least twice.
In each case approximately twelve witnesses appeared who with absolute certainty said that they had material to show that the Pole did damage the supporting beam. In the third trial there was a recess again, and we had determined that we would go to see this mine and wanted to examine the place where the offense was supposed to have been committed, in order to find out whether the witnesses could make such an observation as they had testified to before the court. In any case, the trial did not come to an end while I was presiding judge, but what the final fate was, I don't know, but I cannot imagine that it led to a conviction. If we would have been interested with weak evidence to proceed here because the life of this foreigner was not important for us, we would not hardly have called three adjournments in order to find out and discover the truth after a dozen people had already arrived and stated that they had arrived at a firm conviction already.
Q We started with your relationships to the SD. On what formal basis were your relationships with the SD? Were you a member of the SD?
A I was never a member of the SD; I don't know either whether there was such a thing as a membership of the SD; or, whether the people were assigned to the SD from the SS. Only during this trial did I hear that there was such a thing as an actual membership in the SD. At that time I assumed that it was an institution of the nature of an official agency, the personnel for which was appointed by the SS. I never made any application for any membership in this institution; I never signed anything.
Q Elkar says that in 1940 you had taken an oath as collaborator of the SD; that is in the English transcript at page 2896. Did you take an oath?
A I can say this with absolute certainty, that I never took an oath in that connection. The possibility exists that it was called to my attention that matters which I found out in connection with such conversations were supposed to be kept secret. However, I do not have the slightest recollection of this either, so I cannot imagine that I was approached on this matter in a solemn ceremony. It is a fact, in any case - and this is why the people who worked for me also knew about these occurrences - that the matters which were discussed there, without exception, I believe, I had also discussed with them and among them. Thus I had no thought of violating any secrets or any pledges of secrecy.
Q What was the status called that you had with the SD?
A In former times I never worried about that because for me it was not a question of practical importance as to what I would be designated as, since I had agreed to hold conversations of the type that I used to carry on with Elkar. Thus, in former times, there was no need to have some kind of a rank for that, or whatever you want to call it.
Q Did you ever become a member of the SS?
A I was never a member of the SS.
Q The witness Gross says - at page 2864 of the English transcript that you had been a high functionary of the SD. Did you perhaps hold an honorary rank in the SS or the SD?
A No. I don't know how Gross got this idea of the high functionary, but I assume he was a stranger in the place and that is how he imagined these things. The same is also true of his assertion that I visited Streicher on his estate. That is the only way I can explain those statements. I never held an honorary rank or something like that, and I was never offered it either: and I hardly attached any importance to it either.
Q Have you finished?
A Yes.
DR. KOESSL: In that connection, I would like to recall, for the attention of the Tribunal, that the honorary collaborators of the SD, as far as they were not members of the SS, were expressly excepted by the IMT judgment from the circle of persons who were described as members of the criminal organization of the SD. This decisions made by the IMT at the beginning of the second day when the judgment was pronounced. Count 4 of the Indictment does not make any accusation against Rothaug. However, I point out this IMT judgment in order to eliminate any misunderstanding.
Q The witness Ferber calls you a leading member of the SD -English transcript page 1353. Since, in the German language, "Federfuehrend" means the responsible leader of a certain faction in an official agency, I ask you whether, in any office of the SD in Nurnberg or Berlin, you dealt as responsible leader of a certain part of the SD.
A I never had a partial field, either locally or anywhere, but my activity was limited to the conversations with Elkar, which I have already described. Ferber knows that too. I did not even have the possibility in regard to time, since I was so overburdened with my work.
THE PRESIDENT: You have answered the question twice, or more.
BY DR. KOESSL:
Q In what connection was your relationship with Dr. Malz, whom Elkar mentioned in his affidavit?
A Malz once attended a meeting, which Elkar mentioned, which took place here in Nurnberg at the SD office. I had been invited to this gathering, a so-called evening of comradeship, because I was supposed to give information there in the form of a lecture about the significance of the Special Courts. I did not deliver that lecture at that time, but recommended that questions about which there were doubts regarding this institution should be put to me and that I was ready to answer such questions.
That is what happened, and in that connection I met Regierungsrat (Government Counselor) Dr. Malz. When I was transferred to Berlin, he called me up some time later and asked me whether I could not see him sometime. His office was a few minutes away from my office. I did visit him there, and we had a conversation. After that, perhaps two or three times, we had dinner together at night.
In November of 1943 - that is, about six months after I had assumed office in Berlin - I was completely bombed out of my apartment and therefore I moved to Potsdam. However, before this occurred, Malz had been transferred away from Berlin so that I no longer had any personal contact with him.
I do want to say, however, that Malz was in the office, at that time, where the reports were dealt with which went up to the higher levels from the lower levels; that is to say, he divided them into the individual fields according to the subject matter, and they were referred to the different agencies.
Q The witness Ferber, on pages 1714 and 1715 of the English transcript, mentions, in addition to the Nurnberg SD leaders, the SD Chief in Regensburg who allegedly received reports of the sessions regularly; furthermore, as to an SD Chief in Amberg, and a trusted man in Cham, that you had told Ferber and your assistant yourself that they were SD people. Of what nature was your relationship to those people?
A Which?
Q He mentioned an SD Chief in Regensburg.
A Oh, yes. I did not know at all where the SD office was situated in Regensburg; therefore, I did not know any member of this SD office either, with the exception of one single case. On the occasion of a court session in Regensburg in which the courtroom was overcrowded, a young man reported to me. He was wearing the uniform of the Waffen-SS but it is possible too that it was the uniform of the SD. He requested permission from me to be allowed to enter the overcrowded courtroom, too.
He told me, in making this request, that as a disabled veteran and member of the SS he was working for the SD in Regensburg. Thereupon I asked the chief of the guards to find room for this man in the courtroom.
That is all I had in the way of personal relationships with an SD office that might have existed in Regensburg. That is all I know about it. I don't remember the name of that SD man either, and I never saw him again.
Q What happened to the SD collaborator?
THE PRESIDENT: We are advised that the film is exhausted, and we will take our recess at this time. Fifteen minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. KOESSL:
Q Witness, would you tell us briefly, please, what were your relations with the SD assistant in Amberg and to the agent in Kamm which Feber mentioned?
A. In Amberg, the following occurrence took place, an occurrence which in one way brought me in contact with one SD-man at Amberg. A man in civilian clothes came to see me and wanted to talk to me in the matter of the witness who had been summoned as a witness, at a trial The man told me that he had come from the SD office. The witness had called on him because he found it embarrassing to appear as a witness in a case. The event in question was of the kind that occurs quite frequently. The man was to give information in a political penal case in which he had been interrogated by the police as a witness, and he found that embarrassing. He did not want to appear to be a man who denounces others. As I remember with absolute certainty, he was not the sort of person who denounced others. The police interrogated him because the police were of the opinion that he was bound to have some knowledge, and in fact he did know something. The man from the SD asked me in connection with the examination of this witness, in some way or another, to make it known that that witness -- whose name I no longer remember -- by testifying as a witness was not doing anything dishonorable. I told him that in the proper manner in order to protect that witness, I would prefer to that point, and I did so. That was not only my privilege but it was my duty to act in the manner in which I did act in such a case. There was no question of a person who denounced someone else or even a so-called informer being covered up for in the case. That man from the SD, whose name I no longer remember either, also told me on that occasion, that he would like to draw my attention to conditions which existed at the Hermann Goering Works. The Hermann Goering Works were iron works in the close proximity of Amberg. The "Initpoldhuette" was the name of it.
The SD man told me that during the war, fathers of families of 4 or 5 children were sent home, having been paid 28 marks a week. He thought that I ought to know about that because it might, after all, happen that in view of that bad pay people would get fed up and therefore might more easily make a careless political statement. As I had known nothing about conditions at the Hermann Goering Works and as cases were always being brought to our attention which had arisen at those Works, I was very interested in hearing about conditions there. Therefore, I and my deputies from that time only in all those cases, attached particular importance to finding out first what the man's earnings were, and secondly to what extent the bad pay had caused dissatisfaction and a mood out of which he might have made remarks of that kind.
Q. Witness, would you tell us as briefly as possible what were your relations to the agent in Kamm?
A. I can say that quite briefly because I never got to know any agent or any SD man at all in Kamm.
THE PRESIDENT: That's sufficient. If he didn't know him, just let him say so and stop there.
A. And to conclude this matter, I may say that apart from the man from the SD whom I have mentioned now, in the entire area of the District Court of Appeals, I knew no other SD offices and had no contacts of any kind with any other SD offices.
Q. In the passages which I have mentioned, Feber states that according to your own statement, and I quote, "Also from the Reich, certain phenomena which occurred in the Ministry of Justice were critized." He mentions the Special Courts of Munich and Bamberg, and one or two judgments passed by the Special Court at Saarbruecken. According to your view, you had been given the task, and I quote: "To criticize those two judgments, not so much from the legal point of view, but the ideological point of view because politically speaking criticism had been exercised concerning these two judgments which were rather too lenient."
Which judgments of the Special Courts at Munich, Bamberg, and Saarbruecken were under discussion, and what was the position you took?
A. The brief discussion of those events is characteristic in this way. From the Special Court in Munich I never saw any judgment that we passed whatsoever unless for official reasons we had asked for files from Munich to use them together with our files, but I do not believe that case actually arose. In no case did I ever ask the SD to receive a judgment which was passed at the Special Court in Munich, nor did I ever read a judgment which was passed by the District Court of Appeals at Bamberg. Here too, the only possibility is that for some official reason or other, files from the District Court of Appeals at Bamberg had been sent to us, but if that had happened that would have been done in the usual, normal routine channel for factual, official reasons. I never received a judgment passed at Bamberg via the SD. What actually is involved here is an entirely different matter, and it is this. The Reich Food Estate at a certain time during the war -- the date of which I don't remember -- had a conference at Munich. At that conference many speeches were delivered in which the affairs of the Reich Food Estate were discussed. Representatives from Munich and Bamberg were asked to attend this conference, and they were to be designated by the general public prosecutor in Munich or Bamberg. This Public Prosecutor Spiess from Bamberg appeared and gave his views on the subjects discussed at the conference. That gentleman from Bamberg spoke for example, about the problem of black slaughtering. His views were impossible not only in my opinion, but also in the opinion of my assistants of Ferber, and I believe half of the world it was a comic point of view; and therefore, we talked about it a great deal in our circle. The representative of the general public prosecution at Munich took up a similar position. All those points of view were compiled in one memorandum, and that memorandum went via the SD leadership and was passed on, and it was made available to me by Elkar, so that I should see what points of view had been voiced at the conference of the Reich Food Estate on the subjects discussed there.
These discussions arose concerning this Munich and Bamberg points of view, and it must be those discussions which Ferber had in mind.
One must distinguish the Saarbruecken cases. Elkar mentioned those too. I came in touch with the Saarbruecken affair in the following manner. One day Elkar came to see me and brought me socalled morale report which did not originate from Nuernberg but from the Saa-Palatinate area. Those morale reports dealt with the attitude of the population concerning judgments passed by the courts in the Saar-Palatinate in the field of war economy. That report only dealt with cases of that type. It was handed to me because they were in need of a man who, from a purely professional angle, would give his opinion on the questions which the population believed it had to criticized, and because one knew me, these matters were passed on to me with the request for me to give my opinion. I did give my opinion, but I must say that I gave my opinion only as best as I could for the material consisted of a sensational report, if I may put it that way, that is to say reports such as a layman would write them down at a trial. The problems had been hinted at but the facts of the case were not mentioned. Therefore, one could only roughly give one's view by saying, well, a certain thing might have been meant in a certain way, and in this and that case one might say the following. I made my report in what manner and it was passed on. What happened to it subsequently I don't know.
Q It is alleged that you said on one occasion, witness, the Munich and Bamberg or perhaps only the Bamberg people were charitable people and you were referring to the sentences passed by the Special Court at Bamberg.
THE PRESIDENT: The question simply is whether you said that or not. You can answer whether you said it or not. Did you say what counsel just said?
THE WITNESS: I believe for certain that I said that.
THE PRESIDENT: That is enough.
THE WITNESS: But if you want to know the exact context and what purpose was aimed at -
THE PRESIDENT: I think it is necessary.
BY DR. KOESSL:
Q In connection with the discussion of cases that occurred at other special courts, Elkar stated in Exhibit 411 that your work, in a certain sense, had been of importance to the Reich. What does that mean, "of importance to the Reich"?
A Generally speaking, I did not attribute such outstanding importance to the work I did as attributed to it today, and I only had a very limited time to spend on that work. Consequently, such concepts as importance to the Reich, etc., didn't enter my mind. At any rate, I could ascertain some tangible success I never noticed of all these suggestions which we made. But that wasn't only the case with us. It was the same in the whole field of activity of the Party. That is to say, with a great deal of organization one kept people very busy without any tangible results. Importance to the Reich meant, as far as I can imagine something like this; that a certain matter in its significance went beyond the local sphere.
Q According to the Elkar affidavit, Exhibit 411, you are also supposed to have given your opinion on certain judgments which had been passed at Bayreuth and on which the SD of Bayreuth wanted certain information. These sentences are supposed to have attracted attention on account of the legal treatment and on account of the sentence imposed. Did the SD sector in Bayreuth ask the SD office here in Nuernberg or did they ask you personally?
A I had nothing to do with the SD sector in Bayreuth, nor do I remember that at any time I held a sentence in my hand which affected the area of the SD office in Bayreuth. I can't remember that I was ever asked whether I considered a sentence from there right or wrong.
Q You mentioned to day that at a conference in May, 1942, you wore invited with a view to answering questions.
A. More than what I have already said today in answer to that question, I can't tell you either.
Q Elkar mentioned that you said at that time, that from the facts of the case alone one should be able to arrive at a judgment and any obstacles in the way of the death sentence should be eliminated Do you remember what meaning that remark of yours may have had, that remark which Elkar cites here?
A The passages which he cites are typical for Elkar. I knew Elkar from the time he was training under me .. He said here that years after he passed a state examination he was unemployed and ran around without any work. These passages he quotes here in their logical construction come straight out of his own head. How else should one arrive at a decision of one were not to base one's judgment on the facts of the case?
And if he is talking of obstacles in the way of the death sentence, I mean, if he means the obstacles which have to be eliminated that can mean that one must look for the facts of the case, facts of the case which must be proved so that one can pass a judgment. I can't really judge what Elkar meant to say by those words.
Q Well, we are going to discuss only one more point. Elkar asserts that you had said something to the effect that by appointing the same people as members of the Special Court and of the penal chamber that is to say, by making the same people hold both jobs, difficulties would have been obviated which might otherwise arise and possibly lead to reopening of the trial.
A There is an incorrect tendency in evidence here. This is what really happened.
Normally, that is to say, at the regular courts, the decision about an application for reopening of trial is always made by that court which passed the judgment that has been contested. That is to say, the decision is not made by a different court or by a higher court. Furthermore, it is of importance in the case of reopening of trial and that, in fact, is the main point, that the first decisions which are made there, that is to say, the decision as to whether an application is to be admitted at all, can be brought to a higher court by way of complaint.
The penal chamber -- and that was true in Nuernberg -- which had to decide about such applications for reopening of trial, sometimes was staffed by members of the Special Court, so that the point of view which had been decisive at the trial, that is to say, that the sentence was already at the court which had to make a decision about reopening of trial. To a certain extent that point of view was adhered to. However, a legal point of view could not be brought into the field against having the same judges sitting at both courts, on the contrary the staffing of the penal chamber with members of the Special Court was legally uncontestable. Furthermore, the creation of such courts was not dealt with by the presiding judge, but such institutions were created by the offices of the Administration of Justice, that is to say, by the Presidents of the District Courts and Districts Courts of Appeal.
The institution which is coming in for criticism here did exist already at a time at which I wasn't in Nuernberg yet at all. But the most important thing is, that from a legal point of view the arrangement could not be contested. And, furthermore, naturally there was a possibility to appeal the decision by the penal chamber by appealing to the district court of appeals.
Q We have now discussed the majority of the points of view which have been mentioned generally in connection with the political conditions and with which the defendant Rothaug has been charged, and, therefore, I am going to leave that field now, and I will next deal with the problem of the Reich Public Prosecution, because in that way we will tie up to a certain extent the matters concerning Reich Public Prosecutor Lautz, and so that later on we will not be interrupted again concerning the main points, that is to say the special courts. Witness, how is it that you came to join the Reich Public Prosecution, and when was that?
A On the 1st of May, 1943 I assumed my office with the Reich Public Prosecution at the People's Court in Berlin.
Q When did you hear about that for the first time; what occasion was it?
A The first time I heard that there was an intention to transfer me to the Reich Prosecution at Berlin was in January, 1943, and the occasion was this: In January 1943 the Reich Minister of Justice, Dr. Thierack, made a visit to the Gau of Franconia to introduce the policy which he was planning into the Gau Franconia. For that purpose a so-called roll-call was held, and that political roll-call was attended by the political leaders and the "Rechtswahrer", the legal administrators of the Gau Franconia.
Q I am handing you a piece of paper which is an invitation.
A Yes, this is an invitation from the National Socialist Lawyers League, Gau Franconia, sent to its members. The invitation is dated 8 January, 1943. It is signed, Gau Organizational Administrator, signed Dr. Engert, Organizationswalter, Dr. Engert.
Q How did that invitation come into your hands?
A I found it among files which I studied here in prison, and which were part of the files from the former Special Court.
Q What do you see on the back of the invitation?
A Notes, which I had written down for the Schmidt case.
Q What conclusion do you draw from those notes?
A Evidently when the Schmidt case was finished, I left that piece of paper in the Schmidt file, and I conclude furthermore that this must be the invitation which was handed to me at the time in order to make me attend that meeting at the Kultur Verein.
Q Would you please read out the text?
A "Invitation to a joint roll call of political leaders and jurists of the Gau Franconia, on Wednesday, 25 January 1943, at 19:30 at the Kulturverein, in Nuernberg; Reich Minister of Justice Dr. Thierack and the bearer of the sovereignty of the Gau Franconia, Deputy Gauleiter Karl Holz will speak. All members of the Gau Franconia, of the NSRB, the NS Lawyers League, to attend this roll call. This invitation is good as a pass to enter. The Gau Organizations walter, administrator, signed, Dr. Engert.
Q The witnesses Mietsam and Ferber mentioned that it was significant that you personally did not attend the reception of the Under Secretary Rothenberger at the railroad station, but that you sent just a small man, and that man was Dr. Engert. According to the position which Dr. Engert held here, was that of loss significance than the position which you held in the NS Lawyers League?
A The Gauorganizationswalter, administrator of the NS Lawyers League, is one of those positions similar to the one I had in the NS Lawyers League as Gau Gruppenleiter. Engert dealt with all questions connected with organizations, whereas, I dealt with questions concerning judges and public prosecutors.
Q Have you finished?
A No. Well, he held a position that was neither of more significance nor of less than my own in the NS Lawyers League. At any rate, he was active.
Q What topics were discussed at that meeting, and who were the speakers?
AAs is evident from the invitation slip, Thierack and Holz spoke. As to the details which were discussed there, I don't remember them, but purely from memory I would say that the tendency of the lecture was the close cooperation between the administration of justice and the Party. Naturally, that did not mean that the Party was to be allowed any influence on the administration of justice. Rather -- that was the entire goal of Thierack's policy -the intention was on the part of the administration of justice, as far as possible, to avoid friction with the Party, and in order to eliminate attacks from those quarters, as far as possible.