I infer that it's nothing that you know about.
A: Now I'm testifying something that I know and we are concerned with this, that outside of Rothaug I had no relationships outside of the office with any other colleague. If I was together with judges or prosecutors, the reason of our being together was always that either there was a general meeting or that, as in Weiden, at the conclusion of a trial, we met. But, beyond that, I did not have any contact and friendly relationship with any judge in Nurnberg not with any prosecutor either. I did not know the family of any of them. Those are the facts. That is the truth.
MR. WOOLEYHAN: May it please the court, the prosecution offers the letter, portions of which we have just read, in its entirety into evidence as Exhibit 554.
THE PRESIDENT: The exhibit is received.
MR. WOOLEYHAN: May it further please Your Honors, it appears on the face of this letter, which we will subsequently offer, that the ...
Well, I'll withdraw that. It speaks for itself.
That's all.
THE PRESIDENT: Have you the Exhibit to offer at this time?
MR. WOOLEYHAN: No, Your Honor, all I have is the original which will have to be processed and handed to you at a later date. I have the original and one English translation. I would like to reserve the number, though.
THE PRESIDENT: We'll reserve No. 554, and is there an NG number to it?
MR. WOOLEYHAN: Yes, your Honor.
THE PRESIDENT: Will you give it to me?
MR. WOOLEYHAN:NG 2125.
THE PRESIDENT: Could you identify the letter a little further for our notes? The date of the letter?
MR. WOOLEYHAN: It is a letter dated Nurnberg, 11 January 1943, on the embossed letterhead of the Nazi Party Gau Franconia, Office of the Gauleiter.
THE PRESIDENT: Have you completed the cross examination?
MR. WOOLEYHAN: Yes, Your Honor.
THE PRESIDENT: You may redirect, if you desire.
DR. KOESSL: I would like to. I request that I may. First, I would like to request the prosecution to allow me to look at the documents which they have submitted because, without looking at them, I cannot conduct a redirect examination on those points.
(Documents were given to Defense Counsel).
THE PRESIDENT: May I ask you, Mr. Wooleyhan, do you propose to offer the case files concerning which you cross examined the witness?
MR. WOOLEYHAN: No, Your Honor, we don't, since, in our opinion, enough of it went into the record, identified by the witness, to obviate the necessity for doing that.
THE PRESIDENT: I referred to the Eisenberger Case.
MR. WOOLEYHAN: We're perfectly willing to abide by the Court's wish on that.
THE PRESIDENT: I simply wished to inquire.
REDIRECT EXAMINATION BY DR. KOESSL:
Q: Witness, first, the representative of the prosecution referred to your membership in the Party in the year 1923. Please tell the Tribunal with whom Hitler, in 1923, was connected? Whom he was allied with when, in Munich, he undertook the famous March on the Feldherrnhalle in Berlin?
A: Hitler undertook the march side by side with Ludendorff and passed the Feldherrnhalle.
Q: Can you remember Karr?
A: Yes.
Q: The then Minister President?
A: Yes.
Q: Please state to what political direction he belonged?
A: Karr... Since I am not prepared and couldn't think this over, it's difficult, in brief sentences, to state that. At least, Karr was a monarchist and he was against National Socialism and against Ludendorff.
Q: Can you tell how Karr ended? What end he met? After 1933, was he still a friend of Hitler's?
A: Karr, and I can only tell you this from hearsay, after the Roehm Putsch, he was liquidated. Whether that is correct, I don't know. I had been told so. I don't know any facts about this. I only know that he was supposed to have been shot at Dachau in 1934.
Q: Thus, the friends of Hitler from 1923 were they, after 1933, absolute opponents of Hitler. Is that correct?
A: That can be answered affirmatively in a general way, and will be generally recognized, I believe.
Q: Now, the prosecution, in order to refute your testimony that every case was handled absolutely within the scope of the legal regulations and within the scope of the official regulations, submitted the case Eisenberger to you. Who originated the instruction to transfer Eisenberger to the Gestapo?
A: The instuction originated from...
Q: (Interrupting): I show the Eissenberger file to you here. Please read what it says?
A: When I was examined I already mentioned that did not carry on the telephone conversation of the 2nd of July with the Reich Ministry of Justice.
Q: Please answer my question only.
A: Therefore, I am eliminated from this proceeding. The issue is that within the scope of official instructions which the Minister of Justice ...
Q: (Interrupting): That is not my question, Herr Schroeder. Just a moment. Please state merely, on page 60 of the files you have a letter. Who issued the instruction to transfer Eisenberger to the Gestapo?
A: From the Ministry of Justice.
Q: In this Eisenberger case was the rule obeyed that the proceeding depended upon instructions which the Ministry of Justice had issued to you via the general public prosecutor?
A: That is how I made my testimony and that is how I meant it to be understood that I never had a private undertaking with Rothaug tut that we, at least as far as my own person was concerned, I never acted behind the back of my superiors and that, in every individual case which I indicted before the special court, I received instructions and the proceedings were approved.
THE PRESIDENT: We will recess until 9:30 tomorrow morning.
(A recess was taken until 0930 hours, 15 August 1947)
Official Transcript of Americas Military Tribunal III in the matter of the United States of America against Josef Alstoatter, et al, defendants, sitting at Nurnberg, Germany, on 15 August 1947, 0930-1630, The Honorable James T. Brand, Presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III. Military Tribunal III is now in sassion. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honors, all the defendants are present in the court room with the exception of the defendant Engert, who is absent due to illness, and the defendant Rothaug, who has been excused by the court.
THE PRESIDENT: Dr. Koessl, you desire permission for the defendant Rothaug to be absent today, do you?
DR. KOESSL: Yes, Your Honor.
THE PRESIDENT: Your request is allowed. At the request of the defendant, he may be absent from the court room during the course of the trial this day.
DR. KOESSL: Thank you very much.
THE PRESIDENT: The defendant Engert has been excused. The proper notation will be made.
DR. KOESSL (Defense Counsel for defendant Rothaug(: May I continue the redirect examination of the witness Schroeder?
THE PRESIDENT: You will limit yourself to redirect examination.
DR. KOESSL: Yes, Your Honor.
DR. KARL SCHROEDER - Resumed REDIRECT EXAMINATION- Continued BY DR. KOESSL:
Q. Witness, in order to reinforce your testimony that you did not treat any case irregularly, the prosecution pointed out the Eisenberger and Klein cases.
Yesterday, it was determined that your office, in the Eisenberger case, acted according to instructions by the Reich Ministry of Justice. Krohne signed the instructions. I now submit to you the Klein file. Please turn to page 3 of the working files of the prosecution. There you find a suggestion that you made, which the prosecution quoted during your cross examination. Please read the suggestion that you made, from the beginning. Please read that suggestion you made. Page 3.
A. Am I supposed to read the whole thing from the very beginning?
Q. Yes, from the very beginning. The date and everything.
A. "23 September." There is no year given. It's supposed to be 1941. "I intend to file the indictment, the draft of which is inclosed, in case the prosecution is ordered. The defendant was, nineteen times, previously convicted because of theft, bodily injury, resistance, relieving of stolen goods; to five years and three months in a penitentiary for insults, etc. Since the 2nd of March, 1934, until the 9th of March, 1936, he was in protective custody in the concentration camp Dachau. The defendant is described as shirking work. Due to his inclination to commit offenses, the population is afraid of him. Until 1933, he was a follower of the KPD, the Communist Party of Germany. He is still considered an opponent of the NSDAP, the Nazi Party. The Gestapo Office, Nurnberg-Furth, intends to issue a warrant for arrest into protective custody of the defendant and to request that he be transferred to a concentration camp. In view of the defendant's personality, I consider that the prosecution should be ordered, since one can take into account the sojourn of the defendant in the Dachau concentration camp; the time limitation of paragraph 20A, Section 2, Section 3, of the Reich Penal Code is maintained; and as the defendant is a dangerous habitual criminal, I intend, by applying Article 20A, Reich Penal Code, and Article I of the Law for the Amendment of the Reich Penal Code of 4 September 1941, to ask for the death penalty.
This application seems justified in view of the Eisenberger case in which there was a similar situation (Subsidiary Act, 66-41). Eisenberger, who, by sentence of the special court of Nurnberg of the 10th of April 1941, because of offenses against the Malicious Acts Law, was sentenced to a penalty of altogether four years in a penitentiary, five years of loss of civil rights, and protective custody, was shot because of resistance. I report this in view of Article II, Section 3 of the Law of the 20th of December 1934, in order to bring about a decision as whether the treatment of the case is intended by me will be approved." Signed: Schroeder.
Q. Witness, you stated that by means of the death penalty you wanted to effect pardon. I am asking you, who had the right to pardon a person who was sentenced to death?
A. The right to pardon was, for the duration of the war, as far as I know, transferred to the Reich Minister of Justice.
Q. Did he have the positive right to give a pardon?
A. Only he had the positive right to issue a pardon.
Q. Could the death penalty have been commuted by the Reich Minister of Justice?
A. The Reich Minister of Justice could pardon in the case of a death penalty. The commutation of the death penalty into a prison term was, in many cases, ordered.
Q. Can you remember who ordered this computation of a death penalty into a prison term? Was this commutation ordered by the Reich Minister of Justice or by the Fuehrer?
A. Or by whom?
Q. Or by the Fuehrer?
A. I believe that, during the war, there was a change, the exact time I no longer remember, when the rights, which, according to the regulation, had been reserved to the Fuehrer were transferred to the
Q Now, look at the file again, and look at the working file, page 4. What did the general public prosecutor answer to your suggestion?
AAm I supposed to read that?
Q Yes, please. It's not very long.
A No, it isn't.
"Decree of the 30th of September 1941. I request that further investigations be carried out regarding the personality of the respondent, the situation of the place where the crime was committed, and the possibility to have witnesses as to the statements he made. The investigations are, above all, supposed to show what activities the defendant conducted after he was released from the Dachau concentration camp; why he did not take up the work that was assigned to him (page 1, back of the page). After the investigations have been carried out, I would like to have the files resubmitted to me and have the files on his previous sentences included."
That's the end.
Signed: Dr. Bens.
Q Did you carry out the investigations? On page 9 and page 8 you find your activity. I only want to hear "yes" and "no".
A Yes.
Q We'll dispense with your report.
Now, what did the Reich Ministry of Justice order? Read page 9 of the working file.
A "Decree of the Reich Minister of Justice of 16 December 1941. The decision is suspended. Please inform me about the details surrounding the offense and the excerpt from the attached files. Inform me about the details about the offenses mentioned under numbers 4,13,15,17, 20 and 22 of the enclosed file, so that I can form a picture in my own mind of the personality of the defendant. On authority of, signed: Dr. Mitschke."
Q This was probably reported on too, and now read page 13.
A "Decree of the Reich Minister of Justice of 7 February 1942, via the general public prosecutor in Nurnberg to the senior public prosecutor in Nurnberg."
Q The senior public prosecutor in Nurnberg, that was you?
A Yes, that was I.
Q Now, what was the order of the Reich Ministry of Justice which was finally given?
A "Your suggestion to ask for the death penalty against the defendant I cannot approve of. In view of the amount of guilt involved in the offense and the numerous previous convictions and the malicious character and work shirking of the defendant, the asking for a lenthy term in a penitentiary and ordering SICHERUNGSVERWAHRUNG (protective custody) seems to me sufficient. In the enclosed decree, which is for the files of the court, I have ordered prosecution under article 2 of the law of the 20th of December, 1934. By authority of, signed: Dr. Krohne."
Q Now, I am asking you what application did your representative of the prosecution make, during the trial? Can you tell that from the record?
A I can answer that only if I can see the record.
Q Please answer it.
AAccording to the record the prosecutor asked for, having described the defendant as a dangerous habitual criminal and sentenced because of a dangerous crime under article 2, section 1 of the Malicious Acts Law, to a penitentiary sentence of three years, that he is to pay the costs of the trial, be deprived of civil rights for the duration of three years, and placed in protective detention.
Q All right.
Now, I want to ask you, was this course that the treatment of the Klein case took, in any point, different from the treatment of all other criminal cases?
A The handling of the Klein case, as can be seen from the documents which I have read, was absolutely in accordance, and fully in accordance, with the regulations for the execution of cases before the special court and not in a single point did it deviate from the general rule.
Q What sentence was pronounced in this case? Please read on page 25.
THE PRESIDENT: No, we don't need to have it read. What was the sentence? Death? Penitentiary? Name it. Just name it and have it over with.
DR. KOESSL: Just state it briefly.
THE WITNESS: Yes. Penitentiary sentence of three years, as well as loss of civil rights for ...
DR. KOESSL: All right.
Who were the judges who signed the sentence?
THE WITNESS: Oschey, Dr. Hoffman, and Groben who was the judge who reported on the case.
DR. KOESSL: Thank you. I have no further questions to the witness Schroeder.
THE PRESIDENT: The witness is excused.
Call your next witness.
DR. KOESSL: May I call, as the next witness, the witness Denzler.
LEONHARD DENZLER, a witness, took the stand and testified as follows:
JUDGE HARDING: You will hold up your right hand and repeat after me the following oath:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath).
JUDGE HARDING: You may be seated.
BY DR. KOESSL:
Q Witness, please tell the Tribunal your name and your profession?
A Leonhard Denzler, last, director of the district court of Regensburg.
Q For how long were you working in Nurnberg, and what position did you hold?
A I worked in Nurnberg from the 1st of December, 1927, until the 22nd or 23rd of March, 1939, as public prosecutor and as judge, alternating.
Q When did you meet Rothaug?
A I met Rothaug when, as local court judge, he came to Nurnberg. That must have been approximately in 1929 or 1930. I cannot state the time for certain.
Q During the subsequent period were you in close contact with him?
A. When he came to Nurnberg I had only official contact with him. I did not know him at the time and also, at that time, did not get into closer contact with him. As far as official matters had to be carried out, as far as I can remember, I also had very little to do with him because, later on, he was transferred to the civil department and I was in the criminal division of the local court.
Q What was told you at the time about the political attitude and activities of Rothaug?
AAt that time, concerning Rothaug's political attitude, I found out nothing at all at first. Only later on did I hoar that he was allegedly a follower of Ludendorff, but I did not hear that from him. Concerning his activity in political matters, nothing became known to me.
Q In 1934, Rothaug was transferred to Schweinfurt. In connection with this transfer you, according to statements by the witness Ferber, became active somehow, especially in connection with Rothaug's desire to return to Nurnberg. Therefore, I'm asking you, did you ever hear to whom Rothaug turned at that time in order to be returned from Schweinfurt back to Nurnberg?
AAs far as I know, Rothaug once turned to the Bavarian Ministry of Justice, or to an office that was taken over into the Reich Ministry of Justice, like the Bavarian Ministry of Justice, and which remained in Munich in order to take care of personnel matters; and he tried with the help of that office to be returned to Nurnberg. As far as I remember, in the capacity of a district court judge, which was the same capacity in which he was used in Schweinfurt.
Q Did you personally support Rothaug's wishes to return to Nurnberg in anyway?
A I once had an opportunity to speak with the then ministry counselor Engert. Ministry Counselor Engert once cams to Nurnberg, and on that occasion he also asked me to come to see him and asked me whether I would be ready to work in the office for examinations in the Reich Ministry of Justice in Berlin. At that time I refused that offer, but told Engert if I could pronounce a request on behalf of somebody else, my request would be that I would tell him the wish of Rothaug which was known to be, to return again to Nurnberg as a district court judge. As far as I know he had great difficulties with his apartment -
Q That is enough.
THE PRESIDENT: Please answer the questions very briefly. Just direct your attention to the specific question asked of you and answer that, and having answered it, stop.
BY DR. KOESSL:
Q Was a promotion supposed to be connected with Rothaug's return to Nurnberg?
A When I told Ministerial Counselor Engert the request, I did not think of a promotion.
Q A witness in this trial has asserted that you had endeavored to have Rothaug returned to Nurnberg for political reasons.
A Rothaug's re-employment in Nurnberg, I supported under no conditions for political reasons. I knew that Rothaug was a capable judge, that was a reputation which he had enjoyed in Nurnberg before; but for political reasons, I would not have been able to recommend Rothaug's return to Nurnberg at that time at all, because Rothaug was not a Party member at that time; and I did not even know his political attitude in the NSDAP
THE PRESIDENT: You have answered the question. You have answered it twice.
Q Did you at that time hold any office?
AAt that time I was Gauleiter of the NS Lawyers' League and honorary Secretary of the Gau Legal Office, Chief in the Gauleitung Frankonia.
Q At that time did the Gauleitung order you to act on behalf of Rothaug?
A No.
THE PRESIDENT: Your answer was no, that is sufficient. Answer the question.
A I beg your pardon.
Q It is known that in 1937 Rothaug was transferred here as district court director and was employed as presiding judge of the special court. Who decided that Rothaug should be employed in that manner?
AAs presiding judge of the special court Rothaug was appointed, I believe, by the President of the District Court of Appeals.
Q. Who was the then president of the District Court of Appeals and what became of him?
A The president of the District Court of Appeals at that time was Bertram, if I am not mistaken -- yes,it was Bertram. Bertram had retired and moved to Munich. What else became of him, I don't know.
Q Were there any misgivings with you or the Party about Rothaug's being employed as presiding judge of the special court?
A I cannot recall that in Rothaug's case I was asked whether any misgivings existed. However, it is possible that such a question was addressed to me; and if it was addressed to me, I probably would have answered it.
Q What reputation did Rothaug enjoy at that time in his profession?
A In Nurnberg Rothaug was considered a very capable, efficient judge who as prosecutor had already received preferential treatment in Nurnberg because at the time that he was in the prosecutor's office in Nurnberg, he was assigned to the General Public Prosecutor as a referent.
Q The witnesses Dr. Ferber and Dr. Kunz have mentioned a Heller-Muendel case in this trial. I refer to exhibit 233 and the transcript page 1352 to 1642, as well as to page 347 and the following pages. In what official position, witness, wore you concerned with the HellerMuendel case?
AAt that time I was senior public prosecutor in Nurnberg, and I was the chief of the public prosecution, that is, the administrative chief.
Q In discussing this case, the speedy introduction and carrying out of the trial was discussed. Did circumstances exist which according to the law and the official directives require that the case should result in an immediate sentence?
A Yes, such circumstances did exist. In general, the administration of justice was to be executed very quickly. Especially this was an offense which as well as regarding the robbery and auto-trap and because of the shooting of a police official. It came under laws under which this special court had to try the case. The special court had been created for cases that were supposed to be sentenced especially quickly; moreover, at that time there was quite some exitement in Nurnberg regarding the offense, as I found this out from the police report, and the than police in this case had executed the matter vary quickly and very thoroughly clarified all the circumstances surrounding the offense, and all the facts; so for that reason there were hardly any further investigations necessary. The official directives and instructions for the prosecutors had required that they proceed especially expeditiously in such cases.
Q All right, witness, did you as a senior public prosecutor see to it that the indictment was served immediately?
A Yes.
Q Was this speedy activity of the prosecution impeded?
A Yes.
Q How?
A Shortly before the indictment was supposed to be sent to the special court by the prosecution, I received a telephone call from the general public prosecutor's office, and that is from the representative of the general public prosecutor that he himself, that is the general prosecutor, was the general clerk on that day and I was told that the Reich Ministry of Justice had issued directives that the indictment was not supposed to be filed as yet because some kind of a pronouncement by the Reich Supreme Court was to be awaited.
I don't know whether it was to be a decision in another case or whether it was an expert opinion pertaining to some case or other. Had to be submitted.
Q According to the description by the witnesses Ferber and Kunz, the then Gauleiter Streicher had showed a noticeable interest in this case.
A Yes.
Q How was this interest of Streicher's exploited?
A Well, I assume by the police procedure or through the newspaper. Streicher found out that the offenses had been committed, and I can say that Streicher told me that forenoon that the Fuehrer was in Nurnberg and was also interested in the case. However, I was nevertheless somewhat surprised that in my office I was suddenly told that Streicher had appeared at the office of the investigating judge and there had wanted to look at the defendant Heller.
Q Dr. Kunz, in Exhibit 283, speaks about criminal anthropological investigations conducted by Streicher. What have you heard about that?
A If one can call that anthropological examination by Streicher, when I too went to the investigating judge, and my attention was called to the defendant Heller, had peculiar ears, that I know; but I don't know anything about any other anthropological investigation, and I can't imagine that Streicher entered any of the Nurnberg court jails without my having found out something about it.
It is possible but I don't know anything about it.
Q Did you hear any mention of the filing against Heller and Muendel was stopped? Why was the proceedings expediated so very much all of a sudden?
A Immediately after I had received the instructions to stop the indictment, I was called to the Deutsche Hof. I was led to a room where Hitler was, and there I had to report about the Heller-Muendel case to the Fuehrer. I informed him that the indictment was ready and that it could have been filed, but that at the last moment, because of some pronouncement by the Reich Supreme Court, which was still expected, I had received an instruction from the Reich Ministry of Justice to wait before the filing of the indictment. Thereupon, Hitler became very excited, and bawled me out, and then he left the room, apparently he conducted a telephone conversation with the Reich Ministry of Justice; and when he came back, he sent me back and said, "You will receive further instructions from the Reich Ministry of Justice." I also received the order to see his adjutant Brueckner the next morning and report to him about the filing of the indictment. Then, I went home and there at home a short time afterwards, I received a telephone call from Under Secretary Freisler who in a very emphatic manner instructed me to file the indictment immediately that very day, to have the opening date of the trial fixed, and summons to appear on that date to be given to those two defendants in jail, and to ask the two defendants whether they would waive the time limit. I then visited the judge of the special court and I filed the indictment. The opening date was fixed. When the indictment was served to the two defendants, I asked them whether they would waive their right of time limit, and they both said they would waive it; and on the next date, the opening date was fixed.
Q When did the trial begin and who conducted it?
A The trial began the next day around noon. I think it was 11 o'clock. The presiding judge was the district court director Rothaug.
Q Did you attend this trial?
A In the beginning I attended the trial, but then I left in order to take care of other official business which had arisen.
Q The caused Streicher's participation?
A I don't believe it was necessary to cause Streicher to attend the trial. Streicher was very much interested in this case.
Q That is sufficient.
A In any case, I did not cause him to come.
Q Did Hitler interfere in the trial?
A No, Hitler did not interfere in the trial. On the morning before the trial started, he left Nurnberg by train In the morning, about 9 o'clock, I had to make the report about the stopping of the indictment, and there I saw how Hitler left for the station, and I know that his special train was waiting there.
THE PRESIDENT: May I ask you a question. As a matter of fact, didn't you understand that Hitler had ordered that the death sentence be requested?
A No.
THE PRESIDENT: And that that should be done without waiting for the opinion of the Ministry of Justice?
A No. May I say something about that?
THE PRESIDENT: Yes.
A On the day of the trial in the afternoon, I was called up by the Reich Chancellory. Gruppenfuehrer or Obergruppenfuehrer Schaub was on the telephone.
He inquired about the state of the proceedings, and on that occasion I told Schaub that the woman was pregnant. In case the court should pronounce a death sentence against Muendel, an execution of this sentence according to the provisions of the penal code was not admissable.
BY DR. KOESSL:
Q We shall speak about that later, witness.
THE PRESIDENT: What sentence was requested by the prosecution?
A The prosecution certainly asked for the death penalty against Heller, and I believe against Muendel too, I don't know it for certain.
THE PRESIDENT: And that was the judgement of the court?
A The judgement of the court was death sentence against both the defendants. I believe that was the only penalty which was possible, the only sentence which was possible. I don't know.
BY DR. KOESSL:
Q Did the Raich Ministry of Justice keep informed about the course of the proceedings?
A The Reich Ministry of Justice was informed about the course of the proceedings, and I believe by the president of the district court of appeals or by the general public prosecutor.
Q Did the Reich Ministry of Justice complain about Rothaug?
A Yes.
Q I what way?
AAfter a noon recess the general public prosecutor and the president of the district court of appeals came to see me and said that the Reich Ministry of Justice had objected to the fact that the presiding judge had called a noon recess; and therefore, they ware quite angry at Rothaug.