Q.- Did you notice any change in his conception of his official duties?
A.- Any change in his conception of his official duties I could not observe at that time. A phrase constantly used already at that time -- and I believe that every one of his assistants knew that phrase -- was this phrase: That he had to apply the law as it was willed. That was his duty; his responsibility did not extend any further. The judgments which Rothaug wrote, and which I read when I was in Nurnberg, in my opinion, showed clearly that his conception of his official duties, the legal conceptions in regard to jurisdiction which the Reich Supreme Court had developed, that Rothaug's conception was influenced by the Reich Supreme Court and that ho remained within the law.
Q. Did you experience any proceedings in which Rothaug acted contrary to the general rule?
A. As long as I was in Nuernberg, it is entirely impossible that Rothaug or I should have treated a proceeding contrary to the general rule. That would have been impossible from the technical point of view because, as is well known, no case could be tried before the Special Court which was not reported on and of which the General Public Prosecutor was not informed. Under those conditions I cannot imagine how another manner of treating a case - that is, contrary to the general rule - could have been possible.
Q. Regarding Rothaug's attitude toward the extent of the sentence, after 1933 did you notice any change in that, or did you notice any discriminatory treatment for political reasons?
A. As I have already stated during my interrogation, Rothaug's attitude toward the degree of the penalty existed to the same extent before 1933 as after 1933. It concerned the usual general criminality as well as political criminality. Rothaug proceeded against all defendants with a great deal of severity regardless of whether they were nonParty members, Party members, or holders of official positions in the Party.
Q. Can you cite examples of the fact that Rothaug did not pay any attention to Party relationships?
A. Outside of the case which I mentioned during my interrogation - that is the Ramsteck case, where the conviction to a long prison term was very embarrassing to the Gau leadership because Ramsteck was known in Nuernberg as a local group leader and had played an important role in addition to that case I still remember the Deeg case.
Q. What kind of a man was he?
A. Deeg was the author of a book which, as far as I know, was published by the Stuermer. The book was called "Hof Juden" (Hof Jews). As the author of this book he was a man who was respected in Party circles, and he was a special protege of Streicher. Deeg was charged with some kind of fraudulent deals in connection with his book.
He was also sentenced to a severe penalty. I can recall with certainty that Rothaug was not satisfied with the sentence because, according to his own statement, he tried to carry out the conviction under the Law Against Public Enemies.
Q. What were Rothaug's relations with his assistants?
A. I gained an insight into Rothaug's relations with his assistants because I knew all of them. I can only emphasize that in my opinion the relationship was an extraordinarily comradely one and an exemplary one, and that this comradeship which Rothaug maintained with his assistants during his official activity in Nuernberg continued also after his transfer to Berlin.
Q. What were Rothaug's relations with his later successor Ferber?
A. When I came to Nuernberg in 1941, I was told by Rothaug, and by several other colleagues, that Ferber was making efforts at that time to be employed at the Special Court, in consideration of the good relations which he had had with Rothaug for years. That was the very reason, as I found out at that time, for which Ferber was appointed as District Court judge at the District Court in Nuernberg.
I know with certainty, to the extent that I had an insight into the conditions, that Ferber approved Rothaug's course in every respect and without any exception. During my official activity I never heard that any differences of opinion existed between Rothaug and Ferber, and I wish to confirm that Ferber's relationship actually was a condition of trust and confidence in Rothaug as far as I could judge the situation.
In that connection I would like to state that I repeatedly warned Rothaug to watch out for Ferber. I had the impression that Rothaug did not want to believe that Ferber was looking for a friendship with Rothaug only in order to obtain professional advantages. However, Rothaug said, again and again, that I was mistaken, that he knew Ferber and that it was impossible that Ferber was dishonest in his friendship.
Q. Did any one of the assistant judges have serious differences of opinion with Rothaug?
A. During my entire time in service I heard nothing about serious differences of opinion. To illustrate this statement may I perhaps mention the following event? I believe this happened in 1942, when I was in Weiden where the Special Court was holding a session.
After the trial, we were sitting together in the evening, in a circle of friends. On this occasion Rothaug told me that he was proud of the fact that in his chamber there was absolute unanimity in that the judgments were pronounced unanimously. The associate judges - I don't remember any more who they were endorsed Rothaug's statements. I never heard about differences of opinion otherwise either. If serious differences of opinion had existed, I believe I certainly would have heard about them from one side or the other, at least Rothaug would have said something to me about it.
Q Do you now whether more serious tensions arose between Rothaug and his assistants, or between Rothaug and one single assistant, which were due to basic differences of opinion in regard to politics, or substantice questions; for example, basic differences of opinion on the application of the law?
A The experiences I had on that score were in the following direction. I never heard anything about tenstions existing between Rothaug and one of his assistants for political or technical reasons. I think I can exclude the fact that political tensions existed for the reason that the associate judges of that time were just as good National Socialists as Rothaug was. Nobody got the idea to doubt in the least the political reliability of an assistant. In that case it would have been absolutely impossible for such an associate judge to be employed any longer. It is true, however, that Rothaug, in knowledge, ability, and experience, stood far above his associate judges, and for that reason he often won them over to his opinion if they did not have any better counter-arguments.
Q Now, several former associate judges--as, for instance, the witness Brack, in Exhibit 187, Ostermeier in Exhibit 222, Groben in Exhibit 224, and Engert, in Exhibit 156, and Ferber too-stated that they did not feel free as associate judges, and were politically afraid, that they had only worked at the Special Court because they were forced to.
As competent public prosecutor, what were your observations in that respect?
AAs far as Groben is concerned--before I make any statements on the question itself I would like to say that Groben voluntarily agreed to his being employed at the Special Court. That is what Rothaug and my other colleagues told me at that time. This was the case at the time when he dealt wrongly with the Katzenberger case in regard to the taking of the oath of the witness Seiler.
In Rothaug's opinion, this was not a political mistake. Otherwise he would have taken him over into his own chamber. As competent Senior Public Prosecutor I had the conviction that the Special Court was cooperating extraordinarily well. I was never told the contrary by anybody. It is absolutely impossible that the associate judges had political fear of Rothaug, as you call it.
If Engert is listed among these witnesses, I can only say, in regard to that, that Engert himself held an office in the NS Lawyer's League, and, as he boasted himself before the collapse he was in charge of training in the NS Lawyer's League, and he had developed it in such an exemplary manner that the Reich Management Office praised him for it and described the training in the NS Lawyer's League in Nuernberg as an example for other Gaus.
Gentlemen, under those conditions I cannot believe that, for example Engert had, in any respect, any political fear of Rothaug. I emphasize again that the associate judges, in my definite conviction, were good National Socialists at that time, and if they were not so, they played their parts very well and were excellent actors.
Q The witness Engert in the affidavit 156, made the following statement:
"In serious discussions or even in the case of a break with Rothaug, every judge in view of Rothaug's dictatorial position, had to count upon the fact that technical, substantive, or human objections would be considered as a lack of political attitude and the corresponding consequences would result."
Did Rothaug ever pay someone, for an open contradiction with political disadvantages?
A I consider it to be impossible that Rothaug would have presented it if any of his assistants had been of another opinion in one case or the other. I consider it impossible that the associate judges, out of political motives, let themselves be influenced in their opinions. If they did so, in my opinion, it was not political fear, but it was political speculation on the part of these gentlemen, because one must not overlook the fact that the most essential factor for official advancement was the official judgment of the fulfillment of one's duties. What included -
Q Excuse me, you said the official judgment?
A Oh, the political judgment, that included the political judgment. As everybody knowns, in effect, the presiding judge of the chamber gave this political judgment. Thus if, in his opinion, an associate judge, in his official duties, took into consideration his concern about his official advancement, then he should not have been employed in the chamber at all. It happened repeatedly that other gentlemen refused to be employed at the Special Court. I do not know whether for that reason, any special disadvantages accrued to them.
In my opinion it has to be pointed out clearly that the gentlemen who agreed to be employed at the Special Court, in my eyes, did that, without doubt, out of ambition, because they knew that through their activity at the Special Court they could obtain preferential promotion, and that is what actually happened too.
Q Did Rothaug have the office or the rank of a political leader?
A I know for certain that Rothaug was merely Gaugruppenwalter Gau Group Administrator, for judges and prosecutors. He did not have a political office. Such an of ice, in my opinion-
Q That is all right, that is enough.
Did Rothaug have relationships with Gauleiter Streicher or his deputy Holz?
AAs far as I know, it is absolutely impossible that Rothaug had any connections whatsoever with Streicher, because I would have known about it. I only know that Rothaug -- and this was during the time when I was in Wuerzburg--was once called for at the Blaue Traube by Streicher and taken to Streicher's garden, because Streicher wanted to meet Rothaug. That is what Rothaug informed me about. At that time it was purely social gathering, at which persons of both sexes were present.
The second time, I know from stories told me by Rothaug, that he, together with Streicher, participated, in the execution of an auto trap robber whose name I don't know.
I am of the firm conviction that beyond that Rothaug had no further connections or meetings because at that time he certainly would have informed me about that. Moreover, without doubt Rothaug did not look for Streicher, because he always considered him a pitiable psychopath.
As to the Circle Holz, and I think I know this positively, Rothaug had no connection with them. At any rate, Rothaug never told me about it. I only know of one case, in which Holz asked Rothaug to come to the office of the Gauleitung and there he reproached him because of the conviction of Ramsteck.
The meeting ended by Holz, at the end of the discussion, insulting Rothaug and telling him that he apparently was the same civil bastard as the others. At the time Rothaug told me that he was still under the impression of that incident and he was feeling a great deal of horror and he was enraged.
I know that the Gauleitung made an extensive complaint concerning Rothaug, and addressed it to the Reich Ministry of Justice. All kinds of charges were raised against Rothaug, including the charge that he defeated the law. The case was then investigated and Rothaug was justified by the offices of the A ministration of Justice in every respect.
In Rothaug's opinion, the Ramsteck was supposed to have played a role in his transfer to Berlin, at least, Thierack made some kind of indication to that effect to him.
Q We have already discussed that here.
Witness, did Streicher and Holz frequent the Blaue Traube?
AAs far as I am informed, and it was generally known, Streicher and Holz did not frequent the Blaue Traube.
Q All right, that is enough.
MR. WOOLEYHAN: One moment, witness. Your Honors, I object to that question on the ground that the witness has not been qualified to testify about anything that happened at the Blaue Traube. I suggest first that the witness be asked if he was ever there and then testify to what he saw.
Court No. III, Case No. 3.
DR. KOESSL: There is an affidavit that the Prosecution has submitted which testified that the witness was there. The Prosecution submitted an affidavit by Pothaug's daughter which points out that the witness too belonged to the circle of persons who frequented the "Blaue Traube." But I can ask him that question.
BY DR. KOESSL:
Q Were you frequently in the "Blaue Traube"?
A Of course, I was frequently in the "Blaue Traube."
THE PRESIDENT: The witness has answered the question and has qualified his knowledge of the "Blaue Traube". Ask him another question.
BY DR. KOESSL:
Q What people, witness, did Pothaug meet at the "Blaue Traube" and of what nature were the conversations conducted there?
A If Pothaug had made appointments with people at the "Blaue Traube", as far as I know they were only professional colleagues besides myself, Oeschey, Engert, Herr Ferber, Pfaff and others that met there. I want to state explicitly that even after Pothaug's transfer to Berlin these gatherings continued and that they took the same friendly course as the gatherings when Pothaug was still serving in Nurnberg.
Q At what time did Pothaug's relationships with Haberkern originate?
AAs far as he told me, before I had ever heard the name of Haberkern, Fothaug had met him in 1926 at a time when Haberkern hardly was with the party or played any political role.
Q Did Pothaug ask Haberkern for support when in 1934, as you say, against his will he was transferred to Schweinfurt?
A In 1933 we suddenly read through the newspapers that Haberkern had become a big shot in Nurnberg and that he exerted a great deal of influence. At that time, Pothaug, in accordance with his general attitude toward the NSDAP, stated explicitly that he would not resume connections with Haberkern and he also did not, in 1934, turn to Haber Court No. III, Case No. 3.ker; when he was transferred to Schweinfurt even though it was clear to him that all he would have needed was to say one word and the transfer would have been withdrawn.
Q How did Fothaug again come into contact with Haberkern, as Fothaug told me, about 1938, was informed that Pothaug had returned to Nurnberg. Haberkern then had called him up and had asked him to come to see him in his hotel. From then on Pothaug, in my estimation, on the basis of his loyalty - that is one of his characteristics - frequented the "Blaue Traube" constantly even though he himself described the visits there as boring.
Q Did you make any observations to the fact that Pothaug accomplished political cases through Haberkern? Or that Haberkern asked Pothaug a legal question?
A Pothaug never told me of any case whatsoever in which he, through Haberkern, dealt with a political case. In my opinion, he had no cause to do so because Pothaug in his capacity as Gaugruppenwalter for judges and prosecutors only had to report to the Gauwalter - the Gau Administrator - in order to start a matter that he wanted to get started. Moreover, I consider it to be impossible that Haberkern on his part would have referred to Pothaug for the Gauwalter had, after all, the Gau legal office in order to deal with such questions and the other party offices each had their party legal advisers who all held political ranks.
Q You said, I believe, that in 1941 you assumed your office as Senior Public Prosecutor in Nurnberg; is that correct?
A I entered my office in Nurnberg on the first of July, 1941.
Q When you assumed office what was the relationship of the prosecutors of that time to the presiding judge of the special court Pothaug?
AAfter I entered upon my office I could observe that the relationship of Pothaug to my prosecutors, and vice versa, was a very good one and it remained that way until Fothaug was transferred away from Court No. III, Case No. 3.Nurnberg.
And I want to emphasize expressly that this relationship was so good already at the time when my transfer to Nurnberg was not even being considered at all. At least the prosecutor repeatedly told me that.
Q Did any public prosecutor ask you to refrain from appointing him as prosecutor during the session of a trial when Pothaug was presiding judge?
AA prosecutor never came to me with a request that he did not want to represent the prosecution when Pothaug was presiding judge. On the contrary, I can state positively in regard to that point, that the prosecutors absolutely fought for the privilege to take part in the sessions outside of Nurnberg which, as a rule, were under Pothaug's presiding judgeship.
At that time Prosecutor Ferrazin, who has died in action, told me that he had to keep a roster about the distribution of the prosecutors to the sessions out of town so that no prosecutor would feel that he was being neglected. The prosecutors also, on their own, told me repeatedly that they liked to work together with Pothaug.
Q Thus no public prosecutor complained to you?
A No, never; and I don't know that anybody, if he believed that I perhaps had connections with Pothaug and thus did not want to turn to me, I never heard either that any public prosecutor ever turned to the general public prosecutor for such a request for this would have been an obvious thing to do, because the general public prosecutor had appointed the political prosecutors and the political prosecutors were not appointed by the senior public prosecutor.
And a third method which a prosecutor might have used, if he did not want to work together with Pothaug, was that he might have asked to be declared as no longer essential and this would have been approved without any doubt.
DR. KOESSL: May it please the Tribunal, may I here make the request that the defendant Pothaug stay away from the session this after Court No. III, Case No. 3.noon, nor is it necessary that he appear tomorrow.
THE PRESIDENT: The request is granted. We will recess until one-thirty this afternoon.
(A recess was taken until 1330 hours.
AFTERNOON SESSION OSWALD ROTHAUG - Resumed.
DIRECT EXAMINATION -(Continued) THE MARSHAL:
The Tribunal is again in session.
DR. KOESSL: Koessl for the defendant Rothaug. I ask to be permitted to continue the direct examination of the witness Schroeder.
BY DR. KOESSL:
Q Witness, did Rothaug complain to you about an individual public prosecutor?
A Rothaug never complained about a public prosecutor although doubtlessly, in my opinion, he might have a reason here and there to do so. But at any rate he must have settled that with the public prosecutors personally and the prosecutors agreed to such a settlement.
THE PRESIDENT: Dr. Koessl, the question and the answer which have just been decided makes this am appropriate time for the Tribunal to state to counsel, to this witness and to the defendants its deliberate and considered unanimous with reference to the manner of questioning and the manner of answering questions.
It is not to much to say that there appears to be an intense antipathy on the part of most everyone of the witness we have had, with a few very distinguished exceptions, to the use of the word "yes" or the word "no". Now, we expect a question which can be answered "yes or "no" to be answered by "yes" or "no", and when it becomes necessary thereafter to give an explanation of that answer, if it appears necessary, the explanation may be given. We will shorten this trial and defendants who comply with this direction will receive the approval, to that extent, of this Tribunal. Those who go, as we say in America, around Robin Hood's barn with every answer do nothing except to muddy the water and disturb the peace of mind of all of us.
Now, let answer be made "yes or "no" when they can be, with explanations to follow when necessary.
DR. KOESSL: I shall try to do that.
THE PRESIDENT: That last question could have been answered in one word.
THE WITNESS: Yes, your honor.
BY DR. KOESSL:
Q Witness, will you please take that in consideration when you answer my questions and answer first by "yes or "no", but only in such cases add your explanations where an extension of your answer is necessary.
A Yes.
Q Witness, was it possible that mistakes made by the prosecution could have serious consequences in Rothaug's sphere?
A Yes
Q Give us an example, please.
A It occurred frequently that the calling of an important witness was overlooked so that the trial could come about only with the greatest difficulties.
Q Did Rothaug give an instructions to your prosecutors?
A No.
Q Did the prosecutors in that respect make any statements to you?
A No.
Q Any complaints?
A No, never.
Q Did Rothaug exert any influence on the prosecution in respect to the question whether requests for reopening a case should be made?
A No, never.
Q Did he turn to you concerning the problem as to whether a nullity plea should be made?
A No, never.
Q Did he ever turn to you concerning the problem as to whether a nullity plea should be made?
A He never bothered about such matters.
Q Did he ever suggest extraordinary objections on your part?
A No, never.
Q Did Rothaug influence the point of view or the attitude of the prosecution in questions of clemency appeals?
A No, he did not do that either.
Q Did he ever make any attempt to influence you in that question?
A He never did make any attempt in that direction.
Q Did you, as chief of the prosecution with the special court, have the right to make an independent decision about the manner in which the trial was conducted and what penalty you should demand?
A No; I remember for certain that at that time the guidance of the prosecutions was already in existance, I had no possibility to carry out any proceedings on my own or to make any demand for penalty on my own.
Q In what manner was a decision about those questions brought about?
A Decisions about these questions were brought about by requesting an instruction from the superior offices.
Q What did you have to do when the special court did not agree with the point of view of the offices of the Administration of Justice?
A If the special court did not agree with that opinion, then a directive or an instruction was requested on principle.
Q From whom did you receive these instructions.
A That instruction came either from the Ministry or from the general public prosecutor.
Q Did Rothaug ever insinuate that you should deviate, in dealing with the proceedings, from the general rule?
A Never.
Q What made that impossible from the outset?
A The regulation to the effect that copies, of every sentence which was pronounced by the special court, had to be submitted to the general public prosecutor, to the Reich Ministry of Justice. Moreover the general public prosecutor had to be informed officially as to what cases were pending for sentencing for the following week.
Q After the guidance of the courts had been introduced was there any more cause for the prosecution to get in touch with the bench?
A No.
Q What was the contact of the prosecutions with the presiding judge before the principle of guidance was established?
A Considering the position of prosecutions in Germany with regard to the courts, there was always more or less contact customary with the presiding judges of the courts. In fact, before 1933 one used to inquire about the probable punishment to be expected. Of course, that was binding for either side. It was also customary to point out misgivings or mistakes concerning certain points. I happen to know that because when, in 1930, I came to Nuernberg I myself continued that method such as my colleagues conducted before.
Q The witness Dorpmueller stated in his cross examination English Transcript Page 3290 - that Rothaug, in dealing with Prosecutors, always expressed his opinion in an authoritative form and never tolerated any other opinions. What reasons did Rothaug give for his refusal to discuss the expected extent of penalty, outside of the main trial?
A Rothaug stated his opinion as to within what limits in all probality the sentence would be provided the result of the presentation of evidence would confirm the result of previous investigations Rothaug's opinion was -
Q One moment, witness. I believe you made a mistake here. Did you mean to say that Rothaug made his opinion depend on whether the result of the presentation of evidence would confirm his opinion. Is that what you wanted to say?
A Of course, that is what I wanted to say.
Q That did not become quite clear.
A Rothaug's point of view was that, by no means, he wanted, to have any discussion about the extent of punishment, so to say, backstage, which would afford the prosecutor an opportunity to exert any influence on the court. The place for that was the main trial. In my opinion, that was the proper point of view, an unobjectionable point of view, and the only one possible. The court could try to convince the prosecutor, but never was it permitted that the prosecutor should exert any influence on the court -- that is, outside of the sessions. The prosecutor could examine his opinion and, if necessary request instructions.
Q Did any one of the prosecutors ever complain about that fact that Rothaug, in dealing with prosecutors, had too much of an authoritative manner in voicing his opinion or that Rothaug tried to force an opinion on the prosecutors?
A No, there was never anything said about that. On the contrary, and I want to stress that again, the prosecutors told me repeatedly that they liked to work with Rothaug.
Q Several witnesses, particularly Ferber, Doebig and Miethsam, mentioned the animosity of Rothaug against the administration of Justice. What thoughts did Rothaug reveal to you concerning his attitude toward the administration of justice?
A Rothaug, as long as I knew him, was somewhat opposed to the administration of justice and he never left any doubts in anybody's mind about that fact. His way of thinking was about the following: Due to the position of power which the administration of justice occupied, compared to the judges, the independence of the judiciary had become illusory. The structure of the judiciary, the fact that judges were civil servants, the possibilities for promotion the question of the place and the manner in which a judge was employed - all these matters, which were to be decided by the administration, gave the administration of justice so many possibilities of exerting influence that only a very strong character could maintain independence.
This line of thought was not directed against certain individuals, nor was it in accordance with the concept of the National Socialist Party which had quite opposite aims, as we know from experience.
Q Did Rothaug offer any reasons, from his own experience, for his animosity against the administration of justice?
A In that field, Rothaug had had an experience. I believe, in 1930, he had sentenced a participant in the Old. German Day in Nurnberg and pronounced a penitentiary term.
Q You can be very brief. Rothaug himself has described that incident yesterday and, therefore, I ask you just to tell us briefly what kind the bad experience was that Rothaug had.
A Rothaug, as it was generally assumed at that time, on account of that incident was transferred into the department of civil law. He told me, at the time, that his department chief Distler made him understand that that matter concerning the Old German Day was not forgotten.
Q The witness Elkar, in the English transcript on page 2904, asserted that the well-known tension which existed between Doebig and Rothaug had political reasons and that Rothaug was of the position that Doebig could have been opposed to the absolute National Socialist intentions of Rothaug. Did you ever discuss Doebig's relations to Rothaug with Rothaug, and what did Rothaug say at that time?
A Rothaug's attitude with regard to Doebig, as far as I can recall the circumstance, was the same at all times. According to the statement made by Rothaug it was based on reasons of character, not reasons of a political nature, nor was it the case that the President of the District Court of Appeals Doebig disregarded the professional merits of Rothaug. Just the contrary is true. In spite of that, Rothaug believed that Doebig was two-faced in dealing with him and that because Rothaug did not bow to anybody - if one expected him to do a certain thing, he most certainly did the opposite - he believed that, in his position as a Gau group administrator for judges and prosecutors, he was somewhat in Doebig's way.