Q What importance is attached to that secrecy clause on the judges' letters ?
A These judges letters had a secrecy clause, a confidential clause, and I would like to say this. I wasn't upset by that, and I was convinced that the people who had hit on the idea of the judges' letters certainly didn't think they were doing anything illegal by that. Nor can one say that, so simple. Further more, certainly they were trying in good faith to apply the law correctly. I saw the danger in the method itself. At any rate, the secrecy clause certainly was not employed because of a bad conscience. It would be altogether incorrect to conclude as the prosecution has done that from the secrecy it results that the people who dealt with the judges' letters were doing a job which shewed day light. The reason was in effect this. It is known that both the administration of justice and the judiciary on a broad front were attacked constantly by certain press organs above all the "schwarze Korps", usually about facts, which had never occurred, but which were artificially adapted to make them fit and to have the desired effects. One must bear in mind that the judges' letters mainly dealt with incorrect judgments. They were printed and kept with great care, and one would have played into the hands of those people if one had allowed them to get hold of those letters. Far from these letters they could see, so to speak, in black and white, the criticism that the minister himself had to make concerning his own judges. That means the secret clause was to give protection against the judges' letters falling into the hands of circles who were interested in using them in public against the administration of justice and the judiciary.
Q I believe that is clear enough. Now, we are coming to the guidance problem. Ferber says, English transcript page 1725, that you had said in connection with the guidance principle, if there is anybody who guides it is me.
Is that true?
A In order to avoid an error, I believe it was Engert who said that.
Q No, it was Ferber who said it.
A It doesn't matter. That doesn't matter, but it is quite true that I did say that. I said if there is anybody who guides, it is me.
Q What did you mean to say with that?
A I meant to say that every chamber with us in German, such as it was organized, was not only based on a legal structure and a legal foundation but I also consisted of a number of human beings who were connected with one another; and therefore there existed the old principle which was an old establishment can be understood on its merits, that is the principle that the president of the chamber, vdio was usually an older judge of higher rank, but not an official superior to the others, -- that he should see to it by methods of a judge that is to say, by a method which gave the reason for his point of view in an affair with the intention that the jurisdiction of the chamber should be on a even level without affecting the privilege of every member by better reasons to bring about a change in the opinion of the majority and consequently, of the course, that was the situation under the old laws.
Q Was an attempt made to make you play a part in this guidance matter?
A That attempt was made, but from the very beginning , I was altogether against this question. That is to say, I showed that I was against it in the face of everybody, also of Herr Doebig, because I was of the opinion that by such guidance one would achieve the result of anonymous jurisdiction. We had the jurisdiction of the Supreme Reich Court which had become the historic guidance of German jurisdiction; it moved within the sphere of judiciary; and therefore, one could not object to that type of guidance. But it was an impossibility that any civil servants suddenly not because of the quality of jurisdiction but to eliminate political embarrassmenttried to interfere with the administration of justice.
And that I opposed.
Q In what year was that?
A I think it was around '41 or '42. I was asked by Herr Doebig to go to see him. First he tried, and that was what he always tried to do with me, to talk kindly toward me as if I had been a sick horse, and then there followed the famous reference, that he wishes to draw my attention to the fact that this was an order from up above, and in reply to that I said to him, "There are no orders here." I did not attend one single of there meetings, but I did ask him what it was all about. And he then told me to begin with there were to be periodical discussions of cases, and that they were to be held on Saturdays, where those cases were to be discussed that had occurred during the previous week, and also the cases pending for the following week, but it was not intended by those discussions to exert any influence on the judge. All the same, he could decide how he liked. I then asked what the reason was for nicking all this fuss and after all, if the people from the administration of justice believed that they could do the job better than we, they had better come and sit down themselves and put their names to it as well. But this way it wouldn't do. That was my point of view.
Q Did you attend any guidance discussions later on?
A No, I never did attend any guidance discussions.
Q Did you hear what happened at those conferences?
A I heard that what happened there was just what had been originally described to me. I was told that it happened once that a presiding judge came a little late, reported on his case and then when everybody had given their opinion, he apologized and said he had no more time now because the case was under consideration in a downstair's office.
That was the incorrect development, and those were the reasons why I was against the whole matter, and if I give you my reasons here today, I am only doing so because people want to make it appear as if political motives had made me take up that point of view, but that was not the case.
Q Were you taken to account for your refusal?
A No, but, I am convinced that Doebig considering his friendly attitude towards me has seen to it that the proper people came to hear about it.
THE PRESIDENT: We will take our 15 minutes recess at this time.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY DR. KOESSL: (Attorney for the Defendant Rothaug) I ask to be permitted to continue.
THE PRESIDENT: Proceed.
Q: Witness, by the statements which you have made before, do you wish to say that the aim was wrong?
A: I do not want to be misunderstood. We, in the sphere of judges, such as it was our duty, wanted to realize the intentions of the laws, and I am convinced also that the Administration of Justice with its measures did not have any other aim in mind. What I objected to was the method, because that method was fatal for the judges.
Q: Would you have found any protection or support for your point of view from the party?
A: My point of view was in just the opposite direction of what the party thought about the judges, and the profession of the judges because on account of their totalitarian point of view the administration of justice also should be nothing but an instrument in the hands of the leadership of the state, and the measures which were desired here were in the direction of that principal attitude of the party.
Q: Would you please look at the Loewe commentary, the remarks in thenatations which can be found on page 1073; that is a footnote which deals with the relations of the judge to the administration of justice, in connection with paragraph 1 of the Judicature Act; and that passage should show what the accepted legal point of view was before 1933. There is the sentence here -- can you find the passage? It is just one sentence down here. It begins with the word "consequently".
A: This is the commentary which has already been mentioned by Loewe, the rules of penal procedure for the German Reich. Counsel has referred to footnote 1b, concerning Article 1 of the Judicature Act. It deals with the principle which he elucidates, the limitations set for the administration of justice in dealing with the judges. It says -- Accordingly the principle has to be established that the disciplinary supervision exerted by the administration of justice in connection with decisions made by the judges goes just as far as the punishable violation of an official duty is concerned. The law of the country which cannot change paragraph 1 of the Judicature Act, can limit the extent of that disciplinary supervision, but it cannot extend it any further. Then, there are a number of names of authors mentioned. And he continues: The writer who was last named asserts that the authority who exercises disciplinary supervision had the same right of criticism as any other office or private individual: but one has to say to that that the criticism by the authority which exercises disciplinary supervision is of an entirely different nature than the criticism of any third person. The former contains either an admonishment or a blame. In both cases it is a disciplinary measure which can only be applied in those cases provided for by law. Then, there are some more quotations.
Q: I believe that is sufficient. Would you -
A: Maybe I can still read the last sentence. Since the authority that has disciplinary supervision is not entitled to interpret the laws with any authority its criticism is only admissible in cases of violations against official rules and regulations, but in other cases it is not permitted. The courts can disregard such inadmissible criticisms on the part of the authority which has disciplinary supervision over them just the same as the unauthorized criticism on the part of the prosecution or the police authority.
Q: Thank you. It is alleged that you had spoken your mind about the administration of justice quite frankly; that is what Ferber says. He says you spoke of Schlegelbergerism, is that right?
A: Yes, I said that too.
Q: Ferber said, in the English transcript on page 1403 -- or if you want to say any more concerning the term Schlegelbergerism -
A: That was quite a common term with us -- such as others. One spoke of Schleglebergerism, of a Hamburg invasion and of the Saxon Royal court; that is where Thierack came in. Guertner was called Franzl. That, therefore, as one can see, wasn't serious in any way, but it may have been of a serious nature insofar as the situation on the top level was -probably more serious than we were in a position to judge. Of course we had no idea that government matters in Berlin were decided by consideration of a tactical nature. We assumed, of course, that all that was based upon ideological principles. Of the fact that the people of the Miethsam, etc. type were opposed to National Socialism, that therefore basically Hitler had to work with people at top level who were not really National Socialists, that we, the little people, at our level did not know. We had no idea of that. Therefore, if I spoke of Schlegelbergerism and if others used that term too, that did not meant to express that we had doubts in the wisdom of our government offices as far as party politics were concerned, but it was a criticism of a certain clumsiness which in our position at the lower level we were not able to judge appropriately.
Q: Now, Ferber, on page 1403 of the English transcript - alleges that you said - kings are in power, but they don't rule. And that expression was supposed to have been directed against the administration of justice.
As I cannot with absolute certainty accept it that I was the author of that statement, but if I should have said that, then I only wanted to characterize the amount of red tape, the bureaucracy and the manner in which difficulties and problems were handled. My confidential friend at that time, Ferber, of course, was quite informed about the basis for my opinions, but I do not want to be unjust. It is quite possible that at the top level there were situations of necessities, emergencies of which we could not have the right impression at the lower level. We at any rate did not welcome that state of affairs.
Q: Now, the witness Ferber also says, in the English transcript on page 1716, and I quote: "The difference of opinion between Rothaug and the Administration would not have gone so far if Rothaug had not had at his disposal a large source of information concerning the party and the SD." What can you say about that?
A: That it is a complete misrepresentation of things as they really were because my point of view towards the administration of justice remained the same for twenty-five years, but Ferber did not know me that long, because he only knew me since 1937; and that may be the reason that particularly today he sees matters in such a way as he describes here. My principal attitude had nothing to do with the party or the SD. First of all, because in this question at any rate, it was opposed to the attitude of the party and the SD.
Q: At that time a lot was said about the royal judges -- or autonomous judges. What did you think of that?
A: One spoke most of that at times when the independence of the judge was in greatest danger. That was the famous question of words and deeds.
Q: Doebig, in his Exhibit 237, says that you had been in favor of the Hitler speech of the 26th April, 1942. What is true about that?
A: It is true that I discussed that event with Doebig, and that we were of the one unanimous opinion, and that was that as far as we in Nurnberg were concerned, we did not feel that it was directed against us, because we had applied the laws to the best of our knowledge and our conscience, according to our conviction as they were intended to be applied. any rate, we based ourselves at that time on the opinion that there had been justified reasons for complaints. We regretted, however, that it had come that far that now all the judges were now disqualified. That was quite a dispassionate, sober evaluation of the problems which had arisen such as we could have evaluated in our positions of minor importance. Nobody thought that the method with which Hitler threatened was an ideal one, and that same point of view was shared by my assistants, because the passage from that speech dealt specifically with violations of duty, matters which did not touch us. At any rate, that we did not welcome such things made as a statement before the public of the entire world -- that of coarse goes without saying.
Q. What was your relation with Doebig, and how and when did it develop?
A. When on the 1st April, 1957 I assumed office in Nurnberg, I had vary little contact with Doebig, who at that time was general public prosecutor at Nurnberg.
He was considered in the entire building an absolute National Socialist. I have read evaluations of his personality which surpassed anything that I have seen in that field at any time. He also had good relations, by way of family relations, to the party which supported him strongly, and above all, he always pointed that out that he had very close relations to the SB Obergruppenfuehrer Schmauser at Nurnberg. He discussed it frequently with me and also with others and one had the impression that it was intended that everybody should know he had those good relations. He also told me where these good relations came from, and told me that they were based upon a time of good, close cooperation at Munich.
Q. Doebig says, in the English transcript on page 1754, that he was a Ministerialrat at Munich, but at the time of the unification of the administration of justice he did not want to go to Berlin, but preferred to accept a position as Oberlandesgerichtsrat at Nurnberg; is that correct according to your recollection?
A. That is not quite correct because the main thing has been forgotten. Even at that time the former general public prosecutor at Leuss, with whom I had worked as an assistant, was shortly before being pensioned, shortly before retirement. Doebig was supposed to become his successor. That was the reason why he did not go to Berlin, but accepted the some what lower position of a district court of appeals counselor in order to obtain the higher, stronger and better position a few weeks later of public prosecutor.
Q. Did he become public prosecutor?
A. Yes, of course, that was the purpose.
Q. Who at that time was Gauleiter at Franconia?
A. Julius Streicher.
Q. Was it possible at this time for anybody to become general public prosecutor without the approval of Streicher?
A. According to the regulations there it was quite impossible.
Q. Were you in Nurnberg when Deobig inaugurated the Julius Streicher escape in the prison?
A. No, I was in Schweinfurt at that time.
Q. What did the people talk about.
A. For a long time a lot of talk went on after that had happened; and there were all sorts of sayings that at the same time I had recommended Doebig for president of the district court of appeal.
Q. What kind of a position was that -- a president of the district court of appeal.
A. The position of the president of the district court of appeals is the highest in the entire area -- that is the president of the district court of appeals in Nurnberg.
Q. Yesterday you discussed the area, the map of the district of the district courts of appeals Nurnberg. Do you happen to know now how many inhabitants there are in the area of the district court of appeals of Nurnberg? How many were there in 1941. Ferber in the English transcript on page 1747 mentioned one million inhabitants.
A. Also here Ferber is wrong. The figure amounted in 1941 to 1.8 millions; those were permanent residents, and you have to add several hundreds of thousands of evacuees, as well as the very high figure -- probably near the one million mark of foreign workers, foreign laborers, in that area.
Q. What was Doebig's reputation otherwise -- within the party?
A. According to the information that I received his reputation was excellent.
Q. But were there not any misgivings raised?
A: Misgivings were voiced not so much of a definite character, because Doebig was a very careful type, and above all in all matters of the party he was clever enough that one could hardly obtain any definite material against him. At the time when I came to Nurnberg he was called the JanusKopf, the two-faced Janus, which was intended to express that one should not be deceived by his friendly front.
Q: Where do you know these things from?
A: I personally have not had any experience with him, but that was generally discussed; especially Denzler complained of that, Denzler who was in charge of the Gau Legal Office; that he always felt as if he was confronted here in the personality of Doebig with a man who was not genuine.
Q: What was your impression of Doebig and what was your relation to Doebig?
A: First, I only had official relations with Doebig, and as I was in the habit of doing with all superiors, I tried to keep out of his way whenever that was possible to do; but, if that could not be done I went to see him and he was always full of pleasantness and benevolence in all official questions. He always agreed with me; whatever I did or reported to him was the ideal solution. Therefore, I don't have the least complaint, but there was something inside me which told me that all that was deception - without having any obvious reason for that.
Q: Did you keep anything secret from him?
A: Not the least. With him I was frank, and I just applied the practical method which was my habit, and which often was at my disadvantage. I told him everything that I knew.
Q: The position of the vice president of the district court of appeal has played a certain part in this trial. I want to put to you what Miethsam said in connection with these problems. It is on page 3,918 of the English transcript. I quote:
"The Reich Minister of Justice received a letter from the party chancellery which stated that the Gauleitung, Lauten executive office in Franconia, suggested for the position of vice president the presiding judge of the special court, Mr. Rothaug, and we should decide whether that suggestion could be accepted." Also in Exhibit 482 Miethsam refers to that point. What can you say about that, and had you pronounced any death sentences before the special court at that time?
A. All the reasons that are given here by Miethsam are quite unfounded, because at that time it is hardly likely that we had pronounced any death sentences before the Special Court. Moreover, we were dealing only with cases of malicious acts, which were on a certain basis which I have already discussed, but which certainly could not have given any cause to start any such action to be brought up to the Undersecretary against my person. Therefore, I cannot understand the connection here. At that time I had only been a Party member for a very short time; I had not yet had any position or any function within the Party, I had just come from Schweinfurt. Therefore I do not understand, at any rate, how any action against me could have been initiated, or could have been alleged to have been initiated on that basis.
Q. Can you remember how that entire problem of the position of the Vice President was brought to your attention?
A. The position became vacant when Vice President Schmidt was retired. He was a very wise and pleasant old bachelor who had many, many friends in the building, and it was intended to have him replaced by a person who was also calm and reticent, and that was the Senior Public Prosecutor at that time, Doehring. His name was mentioned, I knew him personally. I was of the opinion that it was intended to have that problem solved by putting Doehring into that job. One day Denzler saw me in my office he explained that he had come into inform me about an important matter. He had suggested my name to the Party Chancellery for that position which was about to become vacant. I told Denzler that I would consider his action without notifying me previously a very unfair one, and he should not believe that I could be pushed into a position in such a manner where I would not normally nave myself put. I told him that I would not accept that position under any circumstances, for one, because I did not want to become a clerk for Doebig, and then because I considered myself too young in comparison with the judges of the District Court of Appeals at Nurnber.
Denzler then said that he had already spoken to Doebig and that I should not get excited. Doebig--that is what he told me-had used the classical expression when he broached that question: "My wishes could not be met more ideally--which is also the wish of the Gau Leadership Office in Franconia--than by having Rothaug in that post." That is what Denzler told me at that time. I refused, nonetheless, and told him that if I were requested to do so from a higher level, I would still refuse to make any application.
Such a request was not made to me, and the problem found a very fortunate solution because a gentleman who was ten years older than I was brought from Essen; his name was Marx, and. he got that position.
Q. Thereafter did Doebig, until the beginning of the war, ever complain or make any hints to the effect that he did not agree with the practice of the Special Court?
A. Doebig--and this was a matter of course--had conversations and conferences with me time and again about all sorts of matters which concerned superficial questions of the routine of the Special Court, and we had quite detailed conversations about all these matters, not as one would expect of a conference between superior and subordinate, because I was not exactly that, but dealing more with general questions. On the occasion of those conferences, Doebig, as long as I knew him, agreed one hundred percent with the practice and the decisions of the Special Court at Nurnberg.
I remember that I once discussed the severity of decisions in general and in certain individual cases, and I also brought up the question once that even if we Were more lenient here--that was possibly in connection with a nullity plea, or something like that, but at any rate I do not remember the basis of that any more-what would they do in the Ministry?
And upon that he stated that we could not expect the least support from them. What usually happened in all these matters was that the gentlemen at the top kept their fingers from it, and the others had theirs in it. However, he never even hinted in any way whether, in one case or another, one could or should have been more lenient. He was a little disgruntled if any of our cases were returned on the basis of a nullity plea.
In this connection I remember the case of Wentzler, which was frequently referred to here.
Q. You mean Wendell?
A. Yes, Wendell.
That was the first case which was reversed by the Reich Supreme Court. He immediately started to speak about that, saying, "Well, I believe we could have avoided that." He didn't say any more. It was not a serious criticism, maybe it wasn't a criticism at all, perhaps it wasn't intended to be. However, it never occurred where he would have made me understand by way of a hint that he disapproved of the practice and the decisions of the Special Court of Nurnberg.
In that connection may I also mention this, because it really belongs here, that we, in a locally limited Special Court, had no possibility of following the course of the Special Courts anywhere else in Germany. It may be that through conversations with others we found out that, let's say in Munich, the Court had been more lenient in a case of illegal slaughtering than the Court in Nurnberg. However, on the other hand, we had no way of observing the practice of the other Special Courts throughout the German Reich in any way.
Therefore, we did not know whether we were ahead or behind in our practice. That certainly could be observed from a central position, and our agencies--that is, the General Public Prosecutors and the Presidents of the District Courts of Appeal--time and again were called to Berlin and informed and instructed and enlightened about the situation.
After such visits to Berlin for the purpose of enlightenment, Doebeg called me every time in order to express his approval and praise to me, and it was of particular importance to us that as far as Berlin was concerned, we were neither praised nor criticized from that source. On the other hand, however, Doebig never made any mention of the fact that generally, or in individual cases, we exceeded in severity any other Special Courts, or that in certain cases or generally we were behind other Special Courts. Although this would have been quite easily possible, why we were never granted any information about the general policy is one thing I never understood.
Q. The case of Wendell, which was cited here, is discussed in Exhibit 154, also by Engert in Exhibit 156, by the witness Ostermeyer in Exhibit 222, and it was also discussed during the testimony of the witness Ferber.
Have you heard, witness, whether Doebig, in reports on a situation, made any mention of the practice and decisions of the Special Courts?
A. It is absolutely certain that in his reports on the situation he spoke about the Special Courts, their practices and decisions, the number of cases, the principles adopted and applied, and the basic policy; and that was quite easily possible for him because, as I have already explained, I informed him of every sentence which was pronounced by us by sending him a copy. However, I don't know what he reported, although I would have been very much interested in knowing it.
Q. Did you hear anything about the fact that Doebig had influenced the General Public Prosecutor, or had consulted him about such questions or told him that more lenient demands for punishment should be made, or that legal remedies should be applied?
A. As far as I know, the relations between Doebig and General Public Prosecutor Bens were good. How, if I come to think that Doebig, before the war or even during the war, had not approved of the policy of the Special Court of Nurnberg, then one does ask the question, what would have been the next step for him to take? That he could not turn to me by putting demands to me was clear. However, he did not choose any other method, although, if it was the other way around, these gentlemen would have found a way. But he only had to take legal steps, and that went via the General Public Prosecutor. All he would have had to do would have been to suggest to the General Public Prosecutor that where our policy , as he expresses himself today, became too severe, the appropriate legal remedies should be applied which were at his disposal, for instance, the nullity plea.
However, I should like to doubt very much whether Doebig ever expressly approached General Public Prosecutor Bens, who was certainly competent for these matters, with the worries which he says he has today about these matters.
Q. Now, you have heard what Doebig and Miethsam said. Was it really necessary at that time that Doebig had to approach Miethsam, to make efforts with Miethsam to have you transferred, or were there any other means at his disposal?
A. I assume that that question refers to that attempt to have me transferred to the East.
Q. Yes.
A. Well, Doebig asserts --how shall I express myself now? -that he had already stated with his attempts to have me transferred at a time when the law of 1 September 1939 had not yet existed, that is, when I still had the support of the principle that a judge could not be transferred. In what way they --- that is, Doebig and Miethsam together -- before the war, intended to do this thing without any disciplinary procedure, that is one thing that I cannot imagine. After the war had broken out , the famous decree of 1 September 1939 was issued, which opened up certain possibilities.
Q. Do you have any facts to support the opinion that Doebig, only for the sake of appearances, attacked the severity of your sentences?
A. Before the war it was quite impossible that sentences of the Special Court of Nurnberg could be used as a pretense for an action of that kind; neither do I believe that any action of that kind, that is, the attempt to have me transferred to the East, could have been founded on the jurisdiction -- that is, the sentences and the decisions -- of the Special Court at Nurnberg. It is certain, however, that the law of 1 September 1939 served them very well in these efforts; they could hardly use the means of disciplinary proceedings, because proof was needed for that. But apparently they weren't too much worried about proof, because all the sentences which were pronounced while was presiding judge were there on Doebig's desk in his office; and from Miethsam's statement and from Doebig's own statement we can see that they had never made any attempt to use such sentences as material for an action against me, or even to consider that.
I t would have been quite conceivable that Doebig could have taken from his drawer one of these so typical sentences of mine and presented it to Miethsam.
Q. You mean Doebig?
A. Yes, that Doebig could have presented one of these sentences to Miethsam. However, nothing of that kind was ever tried. Miethsam himself never asked for proof of that kind. He admits that he himself took the measure without ever having read any one of my sentences.
Q. It was mentioned once that the district of the District Court of Appeals of Nurnberg should be subdivided.
A. I haven't come that far yet. I didn't got to that yet.
Q. Please continue.
A. Then I should like to point out the following point of view.
That action against me, with the intention of having me transferred from Nurnberg, started with the Vice President at Nurnberg, and that was well nigh a year before the war, on the 28th of August 1939, that is , along time after I was drafted for the armed forces, and I was actually called up in this war also. I welcomed that, and I had a good time. In spite of that, about four weeks later, I was called to my commanding officer, a General Geiser, who told me that he was sorry but he had. to lose me because I had been expressly recalled by the President of the District Court of Appeals at Nurnberg for my civilian job. I asked the General to oppose that, and I was promised that he would do so. Nevertheless, about one week later, by military order, I was released from the Armed Forces and returned to my civilian job for which Doebig had recalled me. When I reported to him upon my return, I pointed out that a large number of judges had not been called up and that the personnel situation was so favorable in Nurnberg and there was sufficient personnel so that there really wasn't any cause to have me called back.