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.
Q Was Rothaug's attitude confirmed by other jurists - his attitude against Doebig?
A Rothaug's attitude against Doebig was supported by Denzler and particularly, and that I personally regretted very much, by the then senior public prosecutor with the general public prosecutor, Engert.
Q What did Engert I do to increase Rothaug's animosity?
A I was present myself once when Engert immediately related. the contents of an official conversation which he had, as a representative of the general public prosecutor, with the President of the District Court of Appeals Doebig, to Rothaug and, in doing so, achieved that Rothaug became more and more prejudiced against Doebig.
Q Did Rothaug want Doebig's position?
A No.
Q Did you personally attend sessions of the Special Court where Rothaug was presiding judge?
A I only attended such sessions infrequently, for reasons of supervision over my subordinates, during the plea made by the prosecutor. The statement which I made before, to a representative of the prosecution, I have to correct to the extent that I once attended a full session of the Special Court at Weiden as I recalled later.
Q Did you witness any personal insults to defendants or witnesses, or was anything told you about any complaints or any objections?
A Personal insults to defendants or witnesses on the part of Rothaug I never witnessed because, with the exception of one case, I only attended the session during the plea of the prosecutor, but I was told by individual prosecutors that at times, possibly frequently, it came to rather excited clashes when the person about to be examined, in the opinion of Rothaug, did not tell the truth.
Q Did Rothaug, when he took a witness under oath, did he consider that an instrument to discover the truth?
A Rothaug did not think much of an oath. He was of the opinion that if a man wanted to speak the untruth, then he would not be deterred by the oath from doing so. He thought that the oath never should become a technical element of proof only to facilitate the judge's work.
Q The witnesses Ferber and Dorpmueller, English transcript pages 1332 and 3157, assert that Rothaug had made propaganda for National Socialist legislation. According to all the observations that you were in position to make, did Rothaug introduce thoughts and interpretations into the trials which were outside of the subject under discussion?
A I have never heard any prosecutor deem the general statements as political speeches. In evaluating an offense altogether Rothaug, as he explained to me repeatedly, frequently intended to stress the principle of the doctrine of the state. That was necessary, he said, because that alone made it possible to understand the sentence and, in particular, the extend of the penalty. In connection with discussing individual facts, he says that he did that.
Q Have you finished?
A Yes.
Q Was Rothaug willing to grant any political office or office of the state any influence on his decisions as a judge?
A Rothaug would have been the last to permit anybody to exert any influence on him or to inquire what that or the other political office thought.
Q Witness, how long did you work together with Rothaug in the special court if you deduct the time when you were ill and when you were on leave?
A I worked with Rothaug from the 1st of July, 1941, until November, the end of October, 1942, and I estimate, considering the time of leave, that I worked for a year with him.
Q Do you still recall and individual penal cases which occurred between the time when you assumed office in 1941 and the time when Rothaug was transferred or when you fell ill at the end of 1942?
A When I was interrogated by a representative of the prosecution I was asked about various individual penal cases. Some cases I no longer remember or my recollection is incomplete or vague, so that only if a case is discussed with me individually I could remember details.
Q Do you remember Katzenberger Case?
A I don't know whether it is necessary that I give the reasons for my lack of memory.
Q If you want to give reasons for that, do it very briefly.
A If it isn't necessary.......
Q Well, quite briefly.
A In addition to my activity as chief of the prosecution, I also had to take Care of official matters of the prosecution altogether. I had to handle about five hundred criminal reports of considerable importance, and did not deal with any individual case myself or represent the prosecution in sessions myself. In 1943, I fell seriously ill and, until about the middle of March, 1943, I was only able to work to a very limited extent. In addition to that, I have been in prison now for over two years and, since July 1946, in part I am kept in solitary confinement.
Q That is sufficient, witness.
In the case of Katzenberger you were interrogated by the prosecution as well as by myself. You received several informations which may have aided your memory. Can you tell me something about that case if I should ask you new?
A On account of the matters that you recalled to my memory and, on account of the fact that I had possibility granted me by the representative of the prosecution to look into the files, I think I could make a statement on that.
THE PRESIDENT: Let me ask you a question.
The question is, can you tell us anything other than what you have found in the files? Do you have any recollection yourself?
THE WITNESS: In a certain way, on account of further examination and consideration, I think that I could give some important details.
BY DR. KOESSL:
Q It is asserted that you filed the indictment first with the penal chamber in the Case Katzenberger.
A Yes.
Q At any rate, the cash was then withdrawn and turned over to the special court and dealt with by the special court, and that because, contrary to the first suspicion, one assumed that there was no longer only a question of racial defilement but also a charge against the Decree Concerning Public Enemies. Who was responsible for that change of opinion?
A That change was by no means brought by me because, a short time before that, I had filed the indictment with charges of race defilement and I had to concede that possibly due to the overburdening work I was not in a position to study the files carefully enough so that I may have overlooked the point of view of the application of the Decree Against Public Enemies.
Q When did you first report to the general public prosecutor and the Reich Ministry of Justice?
A When the first report was made in this case I could not say because, according to the directives for penal procedures, immediately, when the matter was brought up, a report was made to the Ministry of Justice, and according to my recollection, the case was already pending when I came to Nurnberg. I personally don't believe that an intermediary report had been made before. I, simultaneously with the signing of the indictment, signed the report to the general public prosecutor and to the Ministry.
Q That was the first report?
A The first report which I remember positively.
Q.- How much time elapsed until the files left the prosecution and were received by the court?
A.- According to my experience, it took at least 5 to 8 days until the files were received by the penal chamber.
Q.- And the same thing applies to the special court?
A.- Yes, that applies to the special court just as it does to the penal chamber.
Q.- Had the report in the meantime gone to the Reich Ministry of Justice?
A.- The report to the Reich Ministry of Justice immediately after it was signed by me was passed on through channels.
Q.- As for the indictment to the penal chamber, could you withdraw that without receiving any specific directive?
A.- I cannot remember that in any single case I would have withdrawn an indictment without specific directives from my superiors; and in this case, I considered it all the more quite impossible because a short time before I had reported to the general public prosecutor and to the Ministry that I was filing the indictment.
Q.- If you therefore withdrew your indictment which you had filed with the penal chamber, could you on your own file a new indictment with the special court?
A.- On my own to file an indictment with the special court was quite impossible because, as I have already mentioned, I did not have the right to dispose on my own any cases for the special court, neither for the manner in which the trial was to be conducted, nor for the extent of punishment that was to be demanded.
THE PRESIDENT: Just a moment, witness, will you inform the Tribunal who prepared the sheet of typewritten notes to which you are referring constantly in connection with this examination?
A.- Those are my own notes which I made concerning the questionnaire which was given to me by the defense counsel.
DR. KOESSL: May I point out-
THE PRESIDENT: Did you type them --- Excuse me, I am asking the witness did you type them?
A.- No, I didn't type them. That is the copy of an affidavit which I -- I don't know when it was but it was several weeks ago -- which I gave to the defense counsel, and what I am looking at are the questions which I have before me in typing. I am not looking through any papers.
THE PRESIDENT: Then my question is this. Are you unable to testify without referring to your document?
A.- 90 per cent of all the questions which have been put to me I answered quite freely, and perhaps by force of habit I have looked on these notes without knowingly getting any support from that. I was informed by the defense counsel that I was permitted to use these questions in the session; otherwise, I would not have taken them with me, and if necessary, I shall close the file.
THE PRESIDENT: You may proceed with the examination.
DR. KOESSL: The questionnaire was given to the witness in the presence of a representative of the prosecution, Your Honor.
BY DR. KOESSL:
Q.- Witness, were directives issued in other cases to withdraw an indictment which had been filed with the penal chamber?
A.- Yes, such directives had been issued also in other cases.
Q.- Did you inform Rothaug about the fact that the indictment was filled with the penal chamber?
A.- I consider it quite impossible that Rothaug should have been informed by me, and I conclude that from the fact that I had signed that indictment only a short time before. That would mean that before I submitted an indictment, I would have gotten in contact with Rothaug.
Q.- Through what channel could the presiding judge of the special court find out that the penal chamber considered itself not competent for a particular case?
A.- When the prosecution filed an indictment to the penal chamber, and the presiding judge of that penal chamber was of the opinion that the special court was competent to handle that case, then the presiding judge contacted the presiding judge of the special court directly; and tried to find out what the opinion of the special court was.
Q.- Was it possible that after the indictment in a criminal case had been filed that these files could be transferred directly to the special court?
A.- That was technically impossible. In a case of that kind, the indictment had to be withdrawn from the penal chamber and a new indictment on a different form had to be filled out and submitted to the special court because as far as the penal chamber was concerned the filing of the indictment meant that the indictment had been filed publicly; whereas, in the special court the indictment had to be read in the sessions.
Q.- Who was the presiding judge of the penal chamber -- one moment. Who was at the time the presiding judge of the penal chamber where the indictment had been originally filed?
A.- The indictment was originally filed with the Fourth Penal Chamber, Presiding Judge, Director of the District Court, Ferber.
Q.- And what can be seen out of the fact that only after extensive investigations of several months the indictment was filed with the special court in or about February 1942?
A.- I concluded from that that the investigations, because of the view that Rothaug had assumed, and which was not a final opinion, were carried out according to the opinion which Rothaug apparently had developed of that case.
Q.- Was any report made to the general public prosecutor and to the Reich Ministry of Justice about the general handling of that case?
A.- In that case as Public Prosecutor Markl has stated here as a witness, reports were made about the fact that the case would be tried as well as about the extent of punishment that would be demanded.
Q.- In Exhibit 151 Ferber says, and I quote, "Markl, as he told me at the time, had been informed about his superior Schroeder, the chief of his office, that he should present an indictment which was in accordance with Rothaug's wishes." The witness Markl and the prosecution handled that matter under your supervision. Had that been approved?
A.- I can only state again that the Katzenberger case was handled strictly in accordance with the directive from the Reich Ministry of Justice, and the general prosecutor, and that not in a single point any change was made, and I believe that elucidates Ferber's testimony.
Q.- That is sufficient, witness. Were there any differences of opinion concerning the Seiler Case here at this special court?
A.- I was never informed that in the case Katzenberger there were any differences of opinion as to whether the case Seiler could be indicted jointly with Katzenberger?
A.- I never received any information from any side that there were any differences of opinion about the connection of the two cases before the special court. I have never heard anything about that.
Q.- What was the opinion Rothaug stated concerning the purjury question in the case Seiler?
A.- Rothaug was against the oath as such.
Q.- Yes, you have explained that before.
A.- I only wanted to refer to the witness Seiler now. He was of the opinion that the question of whether the witness Seiler should be taken under oath considering the position in which the witness Seiler found herself, considering the charges against her and the fact that she was a married woman, that should be restricted to the main trial.
Q Did Rothaug ever make the statement that the fact that Seiler was taken under oath made further proceedings against Hatzenberger more difficult?
A Nothing was ever said about that. At any rate, not to me because such an opinion would have been wrong. If the testimony of Frau Seiler was to be used in the main trial, then again she would have had to testify as a witness in the main trial and would have to be taken under oath. By no means the transcript of the previous interrogation could have been just read in court. Only if the testimony of the witness Seiler in the court revealed any contradiction to her previous testimony before the interrogator, the court would have had to solve that contradiction and to reconstruct her previous testimony.
Q What was the purpose of the motion made by the prosecution to take Seiler under oath?
A No reasonable person could expect that the witness would make any different statements under oath than she had made before the police. The public prosecutor in my opinion by presenting his motion could only have had the intention to find out whether the witness Seiler would repeat incriminating statements under oath in the main trial. I was brought to that opinion because Markl otherwise would have suggested that the proceedings be suspended rather than carried out.
Q By what means was the case Katzenberger and Seiler joined?
A That was caused by the fact that the indictment against both defendants was filed in one and the same document.
Q Who had to make the decision as to whether two or more cases should be joined in that manner?
A That decision had to be made by the prosecution. The court could only sever this case if wanted to hear Seiler as a witness.
Q For what reasons were these two cases joined?