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.
They were also angry at the president of the district court of appeals about me and about the general public prosecutor because we had not prevented him from taking this recess.
Q During the cross-examination, the witness Kunz mentioned here before this trial an attempt of Streicher to influence the expert regarding the pregnancy of the defendant Muendel. How and why was her pregnancy mentioned during the proceedings?
A The two defendants, on the initiative of the prosecution, were examined by the district court physician regarding their mental status. There was a capital crime involved, and it is the usual thing to undertake such an examination in such cases. During the session of the trial against Heller und Muendel, I believe in my office, I received the information that Muendel was pregnant. Thereupon I entered the courtroom and there asked the expert, the district court physician Dr. Kunz whether he had told the court already about Muendel's pregnancy. He informed me that he had told the court about it. He said the the people in the courtroom were familiar with the fact that Muendel was pregnant, and I can't say any more with certainty, but I believe later on, that Streicher did ask me what was the significance of this pregnancy; and I believe I told Streicher at that time that first of all that meant that if a death sentence was pronounced, it was not possible to execute it. And it is possible that Streicher told me at that time whether there was a possibility to interrupt the pregnancy of Muendel so that the criminal qualities of Heller would not be propogated in the child.
If I remember correctly, there was no analogy to the Heredity Health Law, and it was not possible to establish an analogy for the Heredity Health Law which provided for sterilization in hereditarily ill persons, but not in other cases.
Q Did you not discuss with Kunz the possibility of interrupting the pregnancy, and did you influence Kunz in that direction according to Streicher's request?
A It is possible that Streicher asked me to speak with Kunz about it, but I remember vaguely that he asked me to do so, and I also remember vaguely that I refused to do so; but it may be in spite of that that I spoke with Dr. Kunz and told him that Streicher was thinking of that possibility. And it is furthermore possible that in telling him so, I told Kunz also that I considered that peculiar idea on the part of Streicher and that Streicher could just not be taught anything of such matters.
Q Did you make any observations as to whether Streicher himself spoke with Kunz about that question?
A I cannot recall that, but it is possible.
Q The question of Muendel's pregnancy, was that discussed also after the clemency was granted?
A Yes, after the proceedings were closed and after Muendel was granted clemency, I received some kind of a letter from some Party office, as far as I can remember. It was either the Office of Peoples' Health, or from the Racial Political Office. In this letter which was addressed to the public prosecution of Nurnberg, the prosecution was asked to hand down a decision whether Muendel's pregnancy could not be interrupted because it was the chance that the child might have some of the criminal characteristics of the father.
I referred this letter to Kunz and asked him to state his opinion about it because I wanted to submit it to the Reich Ministry of Justice. In my opinion the public prosecution of Nurnberg was not competent to make such a decision; and moreover, I say this quite frankly, I preferred to have this question decided on another level than at Nurnberg. The expert opinion of Dr. Kunz I did not receive immediately I believe I then told him that he could state his opinion about that quite briefly. Then I submitted the letter to the Reich Ministry of Justice with the note that an interruption of pregnancy, if it should be admissable at all, was only so in case there be some general regulation existing in the Reich regarding such cases.
Q Was the Heller-Muendel trial already closed entirely when these discussions about the letter from the Party Office took place?
A The trial was closed. The sentence against Heller had been executed, and the execution against Muendel was still pending. Muendel had been granted clemency.
Q When was the judgement pronounced in the HellerMuendel case?
A The Heller-Muendel case judgment was pronounced in the late afternoon.
Q How and in what way did you bring about the granting of clemency plea?
A: I believe General Public Prosecutor Dr. Benz asked me by telephone to report to the Ministry of Justice by telephone regarding the clemency question. I did that in the presence of General Public Prosecutor Dr. Benz from my office. At that time I was then informed that the decision on the clemency plea would be sent to MuenchenStadalheim and that I would be informed there. It may be that was already mentioned at that time that one could count upon the execution of Heller, so that for me actually at that time it was obvious, probably, that no other decision would be made hardly.
Q: You say against Heller.
A: Yes, against Heller.
Q: How about Muendel?
A: Muendel could not be executed.
Q: In Exhibit 233 it says that Rothaug went to the execution of the sentence after they had some drinks.
A: That can't be. Rothaug went in an official car which the general public prosecutor put at my disposal to Munich. The presiding judge had to be present in order to decide details about the execution. A drinking brawl did not take place as far as I know.
Q: Where did Streicher appear at the execution?
A: Shortly before the execution, Streicher appeared in the prison. His adjutant had called up the jail and wanted to know the time of the execution. I informed him about it, and I did, however, hope he would not be able to appear in time, because I set a very brief time limit.
Q: Outside of the Heller-Muendel case, did you experience -
BY THE PRESIDENT:
Q: Just a moment before you leave that case. Witness, if this suggestion with reference to performing an operation for an abortion on Muendel had been carried out, then Muendel could have been executed, because she would not then he pregnant; isn't that true?
A: Ja, ja, ja.
Q: Well, -
A: This "ja" doesn't mean yes, Your Honor.
Q: If "ja" doesn't mean yes, tell me what does mean yes. Go ahead.
A: That was supposed to be an objection. If the pregnancy would have been interrupted, Muendel could not have been executed because then she would have been sick, and then it all depended upon what kind of a decision would result.
Q: What is the reason she couldn't be executed when she was pregnant? Why cannot a person who is pregnant be executed?
A: Because according to the law it is forbidden.
Q: Yes. If she is no longer pregnant, there is no law to prevent here execution, is there?
A: But, in fact, she would not have been in a position to be transferred to Munich.
Q: I see. May I ask you one other question. You are assuming that the execution was to take place the next day.
A: Who is assuming that the execution was to take place the next day.
Q: You said she wouldn't be able to travel to Munich to be executed. Then, I assume, you were thinking of an immediate execution. People sometimes very soon recover from operations performed for the purpose of abortion.
A: Well, this abortion or interruption of pregnancy would have been illegal; it could not have been carried out. If I would have lent a hand in the execution or carrying out of an abortion, I would have rendered myself liable to punishment.
.
Q: Will you tell me one other matter. What, in your opinion, was the necessity for your going to Rothaug's apartment at night in order to file this indictment?
A: I had received the order from Under Secretary Freisler to carry it out. I had put it to under secretary Freisler that I would not be able to find Rothaug now; I didn't know whether he was at home or whether he had gone out for the evening; but I received the order to look for him until I did find him.
Q: You were instructed to file it that night -- the 17th?
A: Yes, on the very day; still that day.
Q: And what was the reason for the necessity of filing the indictment on the night of the 17th? Was that explained to you?
A: The reason was not told me by Under Secretary Freisler. but I assumed that he did so because the Fuehrer had issued instructions to him. That is what I assumed.
THE PRESIDENT: Yes.
BY DR. KOESSL:
Q: Now, witness, if after clemency was granted, could later an execution still take place?
A: No, According to the German code of criminal procedure that was no longer possible.
Q: Outside of the Heller-Muendel case, did you experience any other trial in Which Stricher participated?
A: Yes, I can remember the Schmidt-Fahsel case.
Q: Did Streicher during the Heller--Muendel trial and during the Schmidt-Fahsel trial make an attempt to influence the conduct of the trial?
A: I could not make any observations in that direction. At the outset of the trial I was present in the courtroom; later I left. I do not consider it possible that Streicher carried out such attempts.
Q: The witness Ferber has mentioned that in the Schmidt-Fahsel trial Rothaug had a man evicted from the courtroom because he considered him a Jew, but that, in fact, he had been a Polish university professor. This appears in the English transcript at page 1666. What observations did you make concerning that incident?
A: I can say the following about that. At the time when I was still present at the trial, the then district court counselor Emmert, who was chief of the Justice Press Office, led a gentleman into the courtroom and offered a chair to him -- and put a chair in front of the Gauleiter Streicher and let him sit down there. Some time later, as I have already mentioned, I left the courtroom, but shortly after that I was called back, and I was told that Streicher requested and required some kind of a room for a discussion. I had a room opened and I experienced how Streicher talked to a gentleman, I believe he was on the way to a congress on criminal law; that he fought with him and argued with him; and I found out from Emmert, who was chief of the Justice Press Office, later on that Streicher had reproached him that he had led that Jew into the courtroom and had put this Jew just in front of him, and that Streicher had asked that this gentlemen should be led out of the courtroom again. That is what Emmert, who was also present during that discussion, said; that is what I found out from Emmert immediately after the discussion. Nothing else was told me.
Q: That is, according to your description, Emmert was requested by Streicher to lead this university professor out of the courtroom, and not Rothaug had this man evicted from the courtroom -- as Ferber says.
That is a new description.
A: That is a description that Emmert gave me. I probably would have found out if Rothaug had done it.
Q: Was Streicher's attendance requested at the trial of the Schmidt-Fahsel case?
A: I did not cause Streicher to appear but a number of similar trials too. were conducted in the Reich and high party offices and also government offices officials attended them. These trials were propagandized in the press; the Justice Press Office had to inform the press. The court had to inform the Reich Press Office of the opening dates of the trials, and the Reich Press Office had to inform the Gauleitung in turn. I can imagine that Streicher found out about this trial some other ways too.
Q: The witness Ferber mentioned that the SchmidtFahsel case took place in the courtroom 600, that is the large courtroom, and was conducted in the presence of Gauleiter Streicher, and a big fuss was made about it. This is in the English transcript at page 1330. I ask you now witness, was Streicher asked to attend the trial by Rothaug?
A: I do not know anything about Streicher's having been requested by Rothaug, to attend the trial.
Q: When was the large courtroom No. 600 decided upon as the room where the trial was to be held.
A: If the large courtroom, which is the jurist's court, was used that was decided only after the- date, the time of the opening of the trial had already arrived, and the courtroom which had originally been decided upon proved to be too small for the audience that appeared. I knew that at the time. that they moved from one courtroom to another.
Q: Witness, was Rothaug a political leader when he became Gaugruppenwalter in the NS Lawyer's League:
A: The activity of a Gaugruppenwalter in the NS Lawyer's League did not automatically imply the position of a political leader. At one time it had been planned, that the Gaugruppenwalters were also supposed to be political leaders somehow, but in Nurnberg as long as I was in the NS Lawyer's League and in the Gau Legal Office this did not happen. As I remember, and in this case I think I remember very well, Rothaug was not a political chief, that is always of course, for the time that I can judge while I was in Nurnberg.
Q: One moment, please. One question which I meant to ask you before. You referred to the possibility that you might have received a communication from the ration office in the Heller-Muendel case. That leads me to ask if you know what the nationality of Heller and Muendel was?
A: I don't know that.
Q: You don't know whether they were Jews or not?
A: As far as I know, they were not Jews.
THE PRESIDENT: Thank you. We will take our morning recess.
A: That is my opinion. This question was not brought up in the trial at all.
THE PRESIDENT: We will take now our fifteen minutes recess.
(A recess was taken)
THE MARSHAL: The Tribunal is again, in session.
DR. KOESSL: May I continue with the examination?
THE PRESIDENT: Proceed.
BY DR. KOESSL:
Q. Witness, what did you know about the relationship between Rothaug and Streicher?
A. Well, as far as I know, Rothaug was not known at all to Streicher personally for quite a long time. I remember that one evening I was asked to go to Streicher's garden, and there I heard that Streicher had also asked Rothaug to come there, because he wanted, to make his acquaintance. In my recollection, that was the only time that Streicher and Rothaug met in Nurnberg, as long as I was in Nurnberg.
On that evening, unless my memory serves me wrongly, there were girls of the German Girl's League present, who were singing songs and who were performing for Streicher in his garden.
THE PRESIDENT: Mr. Denzler, we are not interested in the type of entertainment that was enjoyed on that evening. Limit yourself to matters which relate to the trial.
BY MR. KOESSL:
Q. When did you leave Nurnberg?
A. I left Nurnberg towards the end of March 1939. It was on the 22nd of the 23rd of March. It was the day on which the Protectorate was proclaimed.
Q. Did you make any observations to the effect that Rothaug, when, he went to the Blaue Traube, discussed with Haberkern official matters or Party matters, or that Haberkern had Rothaug deal with such matters?
A. I did not observe anything of the kind.
Q. Did Rothaug, on. the occasion of another visit to the Blaue Traube, entertain any close relations with anybody from the Party there?
A. I cannot tell you, but I do assume that