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?
A Because they had to be decided on the same legal foundation.
Q Was the joining of the two cases approved by the general prosecutor and the Ministry of Justice?
A That approval was given by the general public prosecutor as well as by the Reich Ministry of Justice.
Q Did you attend the main trial against Katzenberger and Seiler personally?
A I attended the main trial only during tho main plea of the public prosecutor.
Q Did the president of the District Court of Appeals and the general public prosecutor attend the session?
AAccording to my knowledge both the general public prosecutor and the president of the District Court of Appeals attended, if not all the session, at least its essential phases.
Q Did the general public prosecutor have a possibility during the trial to instruct -- one moment -- to instruct the prosecutor at the session not to state his demand for punishment as intended?
A If on the basis of the presentation of evidence the general public prosecutor had been of the opinion that a different sentence would be appropriate, he could have as he did in other cases instructed the prosecutor at the session to specify a different manner of punishment.
THE PRESIDENT: May I ask who was the general public prosecutor who attended of whom you spoke?
A General Public Prosecutor Dr. Bems, B-e-m-s.
BY DR. KOESSL:
Q Did you tell Markl to receive any instructions from Rothaug for his final plea?
A When I was interrogated by a representative of t he prosecution, I found out about that for the first time. I did not even know that Markl got the basic points for the basis for the final plea from Rothaug.
I would never have approved a procedure of that kind.
Q The witness Engert in his affidavit, Exhibit 156, asserted that Freisler had told him that he did not consider the sentence adequate. Did Engert report to you about that when he returned from Berlin?
A Now, that you mention it, I remember that Engert was at the Reich Ministry of Justice and submitted the sentence. I consider it quite impossible that Engert should have told me about the objections by Freisler because it would be quite incomprehensible to say why Freisler should not have taken any steps if he considered the sentence a wrong one, why Engert after his return from Berlin should not immediately have told us to take steps for the re-opening of the case. Instead of that, we were instructed immediately to prepare a clemency appeal to the Ministry.
Q Did Engert as deputy of the general public prosecutor inform you that you should take steps for the re-opening of the case, for nullity plea, or for extraordinary objection?
A Instruction of that kind was never given either by the general public prosecutor or by his deputy Engert.
Q What was the attitude of the office of the general public prosecutor concerning the execution of the sentence?
AAs I heard, the general public prosecutor was in favor of the sentence being executed. In my opinion he should not have done that and under no circumstances, if Engert was of the opinion that the sentence was not adequate.
Q Were there any doubts expressed within the office concerning the adequacy of that sentence.?
A I was never informed of any doubts of that kind. I can state expressly that my referent as well as I were convinced that the sentence was adequate and I never had any doubt that that was also the conviction of the special court.
Q The witness Groben states in Exhibit 153, in his affidavit, that before the files were sent to Berlin in connection with the clemency appeal, it was intimated that he should remove his opinion from the files. Do you know anything about that procedure?
A When the statement made by the Witness Groben was put to me, that was the first time I heard about it, that it was suggested to him that he should remove a part of the files.
When I asked who that person was, I was told that it was I who made the suggestion to Groben. I have to object against that insinuation. A removal of a part of a file is to be considered a theft of a document; and it is quite impossible that at any time and in any case that I made such an insinuation to anybody to do anything of that kind because I would have delivered myself into the hands of that person. A procedure of that kind would never have been covered or approved by any superior office. Neither can I understand why I should have turned to Groben, of all people, whom I hardly knew at the time. It would have been much simpler to take the file out myself, because the files were in the office of the prosecution, and nobody could have proved that at any time I had had taken them out.
THE PRESIDENT: A question has arisen, which may possibly involve problems of translation. We are not sure, as we have heard the testimony it has referred numerous times to the question as to whether the sentence was adequate. By "adequate" we understand whether it was sufficient. Our recollection is that it was the death sentence which was imposed.
DR. KOESSL: No, Mr. President. It was never said whether the sentence was sufficient, but whether the sentence was contested; or, whether it was considered doubtful or incorrect.
THE PRESIDENT: Yes. Perhaps "excessive" would have been the more accurate word than "adequate". We thought the record should show that the word adequate was used, and that the death sentence was the punishment imposed.
DR. KOESSL: I did not refer to adequacy, but to the correctness of the sentences -- the legal possibility and admissibility.
BY DR. KOESSL:
Q Witness, was there any possibility to take parts of the files to your internal files?
AAs far as I see the matter, it was not quite easily possible to take any parts of the files and add them to the internal files.
We didn't do that, although I don't want to exclude that possibility.
Q The document which was mentioned in the case of Groben, was that of any importance in the further course of the trial?
A I do not know what it dealt with; and I don't know its contents.
Q That is sufficient, and you can't answer the question.
A No, I can't answer the question considering that I don't know the contents of the document.
Q What public prosecutor was in charge of the execution of the death sentence?
AAccording to my recollection, my certain recollection, public prosecutor Markl supervised the execution of the death sentence. I want to supplement this by saying that I did not give Markl any official instructions to carry out or to supervise the execution. I, myself, saw Katzzenberger only once during the main trial.
Q Now, another question. Was Rothaug a member of the Tannberg League, as the witness Ferber asserted -- English transcript 1609?
A Rothaug was never a member of the Tannberg League. As I believe I can confirm that with almost absolute certainty. If there are witnesses who are certain he was a member of the Tannberg Bund, or Tannberg League, then that statement is unture.
Q Mention was made in this trial of that fact that you had been a Lundendorff adherent, as well as Rothaug -- a Lundendorff follower. What was his position toward the National Socialist Party?
A Lundendorff was absolutely against the National Socialist Party, and in his periodical, Volkswarte, he fought against the NSDAP.
Q That is sufficient. Then, Rothaug frankly stated that he was a follower of Lundendorff?
A Until the catastrophe he never left any doubt about that.
DR. KOESSL: Thank you. I have no further questions to that witness.
THE PRESIDENT: Does any other Defense Counsel -- with the exception of Dr. Schubert -- desire to examine this witness as his own? If so, this is the time to do it. It appears there is none.
You may cross examine.
CROSS EXAMINATION BY MR. WOOLEYHAN:
Q Before going any further, Mr. Schroeder, I refer to your statement -- that if other judges on the Nurnberg Special Court were not good Nazis, then they were good actors, playing the parts very well. In your professional opinion, is the degree of the Nazi political activity of those men relevant to their testimony here as to the truth about facts?
AAs far as that is concerned, I expressed my opinion. I did not state any facts; I only stated, and can only repeat, that nobody doubted the political reliability of the associate judges in the least, because Otherwise they could not have been used in the special court.
Q Assuming that, Mr. Schroeder, please answer my question which was only -- do you think, assuming their Nazi acceptability, that that fact is relevant to any testimony or evidence from them in this trial, with regard to the truth about facts. Yes or no -that is simple.
A That I have to leave to the decision of the Court whether my statements were credible or not. I cannot decide that.
Q Then, I assume from your answer that whether or not the other judges on the Nurnberg Special Court were active Nazis or not, was not mentioned by you to either destroy or impair their credibility as witnesses; is that correct?
A I didn't make any statement about the other judges at Nurnberg courts, and I didn't quite understand the question. I ask that these questions be put a little slower so that I can put them down and answer them. It wasn't quite possible for me to do that.
Q Once more, Mr. Schroeder. Do you think that whether or not a man wag an active Nazi has anything to do with the truth or falsity of what he says in this courtroom?
DR. KOESSL: I object to the question, Your Honors. I didn't ask for the opinion of the witness. That was not asked in my direct examination.
THE PRESIDENT: There has been an objection made and the objection is sustained.
Q Mr. Schroeder, as an example of Rothaug's repudiation of Naziism before 1933, you described an occasion in Hof in 1937, when Hitler was addressing a local Nazi Party meeting. You said that Rothaug dissuaded a woman from attending that meeting because, as Rothaug declared, the Nazis were even then striving for a dictatorship that boded the greatest danger to the country. Did you, then, share Rothaug's opinion?
A I personally was of the opinion that If National Socialism would come to power the danger was apparent that we would be drawn into wart that was also my opinion, and that of Rothaug's. I am a rather propagandist for unrestricted individualism, and did not like the collectivism tendencies' which no doubt existed in the National Socialist movement and were carried out by it. At any rate, I did not have the least connection at that time with the NSDAP.
Q If that is true -
THE PRESIDENT: We must recess at this time for fifteen minutes.
(A recess was taken.)
THL MARSHAL: The Tribunal is again in session.
BY MR. WOOLEYHAN:
Q Mr. Schroeder, if what you just said before the recess is true, how do you explain the contrary facts of your membership in the Nazi Party from early 1923 until after it was outlawed by the Hitlerputsch and you then served the Nazi Party in many respects until 1937, when you rejoined and acquired a post of political leadership in the Nazi Lawyer's League?
A I can explain that very simply, because the real situation was as follows: Membership in the Party was dated from the time when the Party was again permitted to function, that is, in 1925, as far as I remember; the memberships were dated from that time. In 1937, perhaps, I made application for membership in the NSDAP and became a member retroactively, to take effect on the 1st of May 1937 as a member.
As far as my former membership in the NSDAP is concerned, that was the time around 1923. At that time in the questionnaire, I stated that I was member at that time even though, on the basis of the knowledge which I have now due to my being incarcerated for severals years since then, I have found out that membership did not exist in my case because I merely made the application , as far as I know, in the spring of 1923 to become a member of the NSDAP. Shortly before that together with a colleague of mine, I had been beaten up during the night, without any cause, by the rural police in Ludwigsstrasse at Munich.
I had not given any cause for that. With that I had considered the situation as being finished.
If I had really been a member I would have had to receive a Party membership book, but that was not the case and I did not pay any fees either. On the basis of the opinion of the American courts and the Denazification Boards, which I know, I am of the opinion that I was not a Party member at all.
Moreover, this concerns the time of 1923, and I would like to reserve the privilege for myself that I have just as much right to change my opinions as anybody else. Even if I had been a National Socialist in 1923, it was not absolutely necessary that I should be one too in 1937 and the following years.
That is what I have to say concerning my membership before 1933.
Q Mr. Schroeder, let us examine if, as you say, you did change your opinion after 1923 and were in agreement with Rothaug on Party issues. Is that your official personnel file that I hand you?
(document submitted to the witness)
A Yes, yes.
Q Please turn to Page 21-a. On page 21-a, do you find a recommendation from the Deputy of the Fuehrer in the Party Chancellery in Munich, dated 12 March 1941, which states that you, as the recommended successor of Denzler as Chief Public Prosecutor here in Nuernberg, belonged to the Party as a member until it was dissolved in 1923, that you recently, in 1937, "rejoined the Party and in the meantime, though not a member, served the Party in many respects"?
Just when it was during that period, Mr. Schroeder, that you changed your mind; and if you did, why didn't the Party Chancellery find out about it?
A I don't know anything about this document; I did not give any cause for it, and I also did not give the information that is in it. I don't know the name of the author of it; at least, I can't read it. I don't know how he comes to state that in this form. I merely stated expressly, and I say it again, that in 1923, in the spring, I said that I wanted to join the Party and that I wanted to become a member because of an incident. I, as well as my comrade, felt that I was injured and this was my only means of protest. That was all there was to my membership, in my opinion. If this offices is of another opinion, I cannot assume the responsibility for that conception.
What I testified to under oath I can only emphasize again and again and repeat, because it is true.
Q But Mr. Schroeder from that document, which you held in your hand, is there any doubt in your mind that that is your official personnel file?
A Yes, I assume--yes, I assume-- Well, I don't know; I mean I don't know in what form the personnel files were made at the Ministry. I assume that is the personnel file which you submitted to me.
Q Now, with regard to your statement, Air. Schroeder, that you deem it absolutely impossible that Rothaug or even yourself could have treated a case other than according to the general rules of law, I now hand you a document.
(Document submitted to the witness.)
Is that document which I handed you the file of the Eisenberger case before the Nuernberg Special Court?
A Yes, that is the Eisenberger file.
Q Is it a fair statement of the facts of that case before you that Eisenberger was sentenced by Rothaug to four year's penitentiary on 10 April 1941 for malicious remarks against State and Party?
AAccording to the judgment, he was condemned to the penitentiary as a dangerous habitual criminal in connection with a crime against the Malicious Acts Law. He was condemned to four years in the penitentiary. That was one of the 10th of April, 1941.
Q Yes. Now, on page 60 of that case file, does it appear that on July 2, 1941 the Reich Ministry of Justice instructed the Chief Public Prosecutor in Nuernberg that Eisenberger should be handed over to the Gestapo?
A This is the inter-office-file. I have to look at the working file. That must show it.