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.
At that time, however, he expressly explained that I personally, during times of that kind, was needed in Nurnberg especially.
That is surprising to me, again, because I cannot understand how the same person could work in other ways with the opposite arguments for just now he would have had an opportunity to get rid of me by just leaving things as they were, at least for the duration of the war. That would have helped him, and , for today, it would have helped me too.
One more pointy and that is a situation which occurred in 19411942. The Gau Executive Office (the Gauleitung) at Bayreuth, from 1940 on or possibly somewhat earlier, wanted to have the area of the Special Court separated as far as it was in the Gau Bayreuth. That would be the entire area which is in the lighter shade on that map. The demarcation line is just about through the middle. There were some separatist tendencies, with the aim of gaining a certain amount of autonomy for that entire area as far as the Special Courts were concerned, not because they were dissatisfied with us or that they had any complaints, but that was a tendency which could be observed quite generally on the part of the Gauleiters, that institutions of the state from other Gaus should not become effective in their districts.
Whether the intentions went any further in Bayreuth I could not tell. At any rate, there is a fact that around Weiden and around Regensburg one wanted to establish special courts, that is, special courts with the local position in Weiden and Regensburg.
Doebig called me at that time and asked me what my attitude was concerning that problem. I told him that in my opinion the establishment of new Special Courts with completely new and inexperienced people in the most of a war, just because some Gauleiter has great big ideas, could not be justified under any circumstances. I consider that in the light of trash.
He shared my opinion with the characteristic reasoning that in his district of the District Court of Appeals he certainly, under any circumstances, would not have three different kinds of court practice which would have arisen if now courts would have been established in Weiden and Regensburg in addition to Nurnberg. But I have to tell myself that if his intention was at that time to limit my influence or my power, then here again it would have been a cinch for bum to initiate with the Ministry that these areas that I have mentioned, which would still have continued to be under his supervision, should have their own special courts. All he needed was to express that desire by telephone to the ministry. No more was needed because no more was done in other Gaus. It would have been an occurrence which was of no particular significance because the same separation had taken place in Bamberg during the war, because the Special Court Bamberg....
A. Which attitude showed Doebig in his speeches with regards to National Socialism -
THE PRESIDENT: May I interrupt? It seems appropriate at this time to state to counsel and to the Defendant Rothaug that the Tribunal fully recognizes the right of the defendant, within reasonable limits, to show bias or prejudice, if any, which may have existed in the mind of any witness who has appeared against him. We recognize that as a sound rule.
We also recognize that any statement which any witness has made against the Defendant may be contradicted by the defendant if, in his judgment, contradiction is necessary.
But we counsel you that neither Doebig nor Ferber nor any other of the witnesses are on trial. The testimony for some time has appeased to be directed toward an attempt to convict witnesses rather than to acquit defendants, and we think that you should direct your testimony from here on directly to the Question of the changes which may have been made against this defendant.
We have permitted, at great length, the testimony which is relevant only to the purpose of showing some bias or prejudice on the part of some of these witnesses, but you have extended that type of examination to the full limit and it is new to be terminated. Go ahead.
BY DR. KOESSL:
Q. Witness, did you at any time go against the position of Doebig?
A. No, at no time.
Q. When did you find out for the first time that the practice of the Special Court at Nuernberg, your manner of conducting trials and your National Socialist point of view were supposed to have been the reason for your prospective transfer to the East?
A. If I shall discuss that matter, then I cannot avoid describing matters as they occurred.
THE PRESIDENT: The question was: When did you discover that these reasons, which were mentioned, were employed as the reasons for seeking your transfer to the East? That question can be answered categorically.
A (Continuing) About the reason given, that allegedly the practice of the court of Nurnberg was the reason for my transfer, that I found out only in this trial.
THE PRESIDENT: Ask you next question, please.
BY DR. KOESSL:
Q. How did Doebig make you understand that the Reich ministry of Justice had ordered your transfer to the East?
A. As I have already explained, my relation to Doebig was a relation of frank and open friendship. I came to him only when he called me.
THE PRESIDENT: Will you answer the question, please? Repeat the Question to the witness.
BY DR. KOESSL:
Q. How did Doebig make you understand that your transfer to the East had been ordered by the Reich Ministry of Justice?
A. He one day called me - it may have been in 1941, about the middle of 1941; at any rate the offensive in Russia must have had begun before that. I also went to his office and he gave me to understand that he had to give me some very sad news which was worse for him even than for me because he had to lose me now.
I sat down and he informed me about tho decision by the Ministry to the effect that I was supposed to accept a certain position in the East. He demonstrated great unhappiness and assured me that he had no idea how he could ever replace me, but he said that he could do nothing against that because in the last paragraph of that decision the provision was contained that in tho case of all persons listed no objections were permitted to be raised against the decision if those names were underlined. Then he gave the list to me so that I could determine for myself, which I did, that my name was the only one that was underlined.
He also said that of course that left him without any possibility to do anything for me. He was apparently quite impressed and I consoled him by saying he shouldn't be so upset, he shouldn't mind it because I would not go to the East. Then he told me that that was probably a great sign of recognition and I pointed out against that, that since I had stomach trouble I didn't like to make such trips. He said, "Well, you might as well try it," and also said -
THE PRESIDENT: Is it the substance of your testimony that he tried to get you to accept the position and you objected and refused?
THE WITNESS: One could say it that way.
THE PRESIDENT: I think that is the substance of your testimony. Co ahead with something else.
DR. KOESSL: Mr. President, at this point may I ash the Tribunal that tomorrow, after this infortunate matter of the relation between the Administration of Justice and the judges, I be permitted to call some witnesses because I have the definite impression that the state of health of the defendant has been somewhat impaired so that he could not answer the questions with that amount of precision which would be desirable for the Tribunal.
Therefore, I wanted to submit the request in consideration of the state of health of the defendant; that tomorrow after this chapter is concluded, which in my estimation may take until the mid-morning recess, that after that I be permitted to call some witnesses who are in the prison of the Palace of Justice and can always be reached.
THE PRESIDENT: Counsel will recollect that the suggestion came to you from the Court that in the event that the health of the defendant reasonably required an interruption for the purpose of examining other witnesses, that that might be done. So you know that answer to your application already.
DR. KOESSL: Thank you, Your Honor.
THE PRESIDENT: We will recess until tomorrow morning at nine-thirty.
(The Tribunal adjourned until 14 August 1947, at 0930 hours.)
Court No. III Case No. III.
Official Transcript of American Military Tribunal III in the matter of the United States of America against Joseph Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 14 August 1947, 0930-1630, The Honorable James T. Brand, Presiding.
THE MARSHALL: The Honorable, the Judges of Military Tribunal III. Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal There will be order in the Court.
THE PRESIDENT: Mr. Marshall, will you ascertain if the defendants are all present?
THE MARSHALL: May it please your Honors, all the defendants are present in the courtroom with the exception of Defendant Engert who is absent due to illness.
THE PRESIDENT: Defendant Engert has been excused. Let the notation be made.
OSWALD ROTHAUG - Resumed DIRECT EXAMINATION (Continued)
DR. KOESSL: Koessl for the Defendant Rothaug. I ask to be permitted to continue the examination of the defendant as a witness in his own case.
THE PRESIDENT: You may proceed.
BY DR. KOESSL:
Q. The witness Elkar said - English transcript Page 2001 - your activity against Doebig only started when you were informed about the plans for your transfer to the east. Is that correct?
A. As I have already explained, my relations to Doebig until that attempt to have me transferred to the east was an absolutely correct one on the part of Doebig. I was treated with special amiability until that date, and that counteracted certain suspicions which arose from time to time in my mind. Only when that attempt became apparent to me - the attempt to have me transferred - my suspicion arose again and, consequently, I certainly became more reticent toward him.
The entire matter, if I may use a comparison, appeared to me like an embrace during which the dagger is pushed into one's heart from behind.
Q. Elkar says, furthermore, you had asked him to inform the RSHA of the plan. You also had sent a report directly to the RSHA or you had stated that you would do so. You had made a report to the executive officers or officials of the Gau and a report to the Party Chancellory. What can you say about that?
A. Of course, after years of the most difficult and hard work, which imposed the greatest responsibilities on me, I was extremely indignant, about the treatment which I had received. I was absolutely certain that I spoke to all my friends, acquaintances and relatives about that treatment, and also in all these circumstances there was the unanimous desire to do everything in their power in order to prevent what was apparently intended.
With absolute certainty I have to exclude, however, that I had rendered any report of any sort concerning that matter to officers of the Party, with the purpose of doing any damage or any harm to Doebig when doing so. It is, therefore, untrue that I sent the report to the RSHA or to the Party Chancellory or to any other office of the Party about that matter. I did not do that for the simple reason because I did not have a definite proof to show how deeply Doebig was involved or responsible for that action. I could only imagine. The only thing that I did was that I described the whole affair just as it occurred in all its details in writing, and I deposited that document with the Gau legal office of the National Socialist Lawyers League. That was all I did at that time in that matter.
A short time after Doebig sent for me again and tole me, full of joy, that I had been dropped from the list, which was well known to me. A short time after that he sent for me again and informed me that at the Ministry he had obtained contact in that matter and I should not have any misgivings against the Ministry because they up there were very much in favor of my person.
That settled that matter as far as I was concerned, and I did not do the least concerning that matter any more. I did not do anything about or against Doebig because the whole affair had become uninteresting for me.
As a judge, according to the law, could you have been transferred to the east without your consent?
A. In principle that could not be done. I was protected in this connection by Paragraph 8 of the Judicature Act.
Q. Will you please read that provision?
A. Commentary on the Code of Procedure by Loewe. It has been quoted before. It is Article 8. "Judges against their will can only be transferred on the basis of a judge's decision and only for reasons and on the basis of those formalities which are provided for by the laws, permanently or temporarily. That applies to their being released from office, being transferred or retired." That is the principle.
Q. On what could that transfer to the east be based then?
A. The transfer to the east, during the war that is, technically could be based on the decree of the first September, 1939, in the Reich Legal Gazette on Page 1658, which has been quoted by the Prosecution in its opening speech. The Prosecution terms that decree as an illegal one because it had made it possible to transfer judges who were in disfavor; but a similar decree, to my knowledge, was issued also in the year 1914.
I don't consider that decree an illegal one and I base my opinion on the fact that it does not violate and it does not even touch the principle of Paragraph 8 of the Judicature Act. There was only a certain limitation to the effect that such transfers could be affected if the sole reason was the safeguarding of requisite numbers of personnel, and because Paragraph 8 of the Judicature Act had been maintained explicitly in addition to that decree, one can see that that decree under no circumstances at all should be used or was intended to be used to transfer undesirable judges, for the sole reason that their judgments were either too lenient or too severe and, therefore, undesirable. If, therefore, such transfers were carried out for the reason that a judge was too mild or that a judge in the opinion of the Administration of Justice pronounced too severe sentences, then there was apparently an abuse of that legal provision in the meaning of forfeiting the purposes of the law.
Q. During your examination yesterday you mentioned that you had refused the position of president of district court of appeal. What was that about.
A. That occurred about one year after that attempt to have me transferred. That is to say, about the middle of 1942: As I have already explained, during that period I again had absolutely correct relations to Mr. Doebig. At about that time, one day the Gau Chief of Personnel, Malizius, of the Gau Executive Office of Franconia, called me and told me that the Gauleiter desired a change in personnel in the post of the president of the District Court of Appeals at Nurnberg. According to the opinion of the Gauleiter Doebig was qualified for a position in the Ministry but not in any field job. I said, thereupon, that I considered that intended measure absolutely wrong in every respect, for one because Doebig was an excellent administrative official and could not be replaced by anybody, at least now during the war.
Malizius asked me then what my personal attitude would be if I should become his successor and I told him that a position of that kind at no time had any appeal for me. I disliked any kind of activity in the Administration of Justice as far as I was concerned and I would ask him to oppose any suggestion of that kind. A position of that kind was not the right thing for me.
BY JUDGE HARDING:
Q. A question, please. As I understand your testimony, you say that your transfer to the east would have been illegal under the Judicature Act. Is that correct?
A. I said that as such the Judicature Act on principle does not permit the transfer of a judge against his own intentions, but in consideration of the circumstances of war and the personnel needs connected with it, it was necessary to somewhat loosen that legal provision to a very small extent, as far as the judges were concerned, and that decree of the First September, 1939, afforded an opportunity to the Administration of Justice to transfer a judge against his own will if the reason was solely based upon the requirements of personnel.