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
THE PRESIDENT: Tell what you know.
A. (continuing)-- man of the Party met there and that he made their acquaintance there.
BY DR. KOESSL:
Q. How long were you in charge of the Prosecution at Nurnberg during the time that Rothaug was the presiding judge of the Special Court?
A. I was in charge of the Prosecution at Nurnberg from 15 October 1937. I believe -- yes, at that time Rothaug was already the presiding judge of the Special Court, and I was in charge of the prosecution at Nurnberg until that date in March which I mentioned here before, in 1939.
Q. During that time did you discuss pending cases with Rothaug?
A. That was not the way I dealt with cases. On the contrary, I told Rothaug that I did not wish to discuss pending cases with him. It used to be the custom that the Senior Public Prosecutor occasionally discussed matters to do with the case, postponement, etc., with the presiding judge, but I did not wish to continue that custom because I was the Gau leader of the Gau Legal Office, and I wanted to avoid ever making it appear as if I might in anyway combine the two offices and mix them up.
Q. During your period in office, did the prosecutors who worked under you complain about Rothaug?
A. I did not hear any complaints from subordinate prosecutors against Rothaug. Occasionally the prosecutors did point out that Rothaug was very harsh in his manner of conducting a trial, and that they weren't always allowed to speak at the moment when they thought they should be allowed to speak but had to wait until he gave them permission to speak.
Q. Did you hear of any basic differences of opinion between Rothaug and the associate judges?
A. I never heard anything of basic differences of opinion between Rothaug and his associate judges.
Q. Did any of Rothaug's predecessors experience any political crisicism?
A. I don't know of any political criticism on any predecessor of Rothaug, However, I cannot, remember who the judges were. If you would give me the names, I could comment on them.
THE PRESIDENT: You just testified that you don't know of any political criticism. That is your answer; just let it go at that.
BY DR. KOESSL:
Q. The witness Ferber stated -- English transcript, page 1320-that Senior Public Prosecutor Denzler, in the autumn of 1937. applied for membership in the Party for all those members of the staff who at that time were not yet members of the party, and that was how he had got into the Party.
Was any pressure exercised at that time to make people join the Party?
A. I did not exercise any pressure on people to join the Party.
Q. Who were the people whose names you entered on the list as suggestions?
A. At that time the Gau Leadership of the lawyer's League was asked to put forward, the names of such members of the Lawyer's League who could be considered for membership in the Party.
THE PRESIDENT: Just one moment. Let me ask you: Do you remember the question?
THE WITNESS: No, no longer.
THE PRESIDENT: Will you read the question to him?
BY DR. KIESSL:
Q. Witness, I asked you, who were the people whose names you put on that list?
THE PRESIDENT: Give us the names, and then you will have finished your duty for the moment.
THE WITNESS: I don't remember the different names.
THE PRESIDENT: Your next question, then.
BY DR. KOESSL:
Q. What sort of people were they whose names you put on that list? Was it a particular category of people whose names you put on that list?
A. As far as I remember, it was the Gau Group Administrators who list d the names were then entered in one joint list. Preference was given to such members of the Lawyer's League who had wanted to become Party members for a long time and whose names, for other reasons one would have liked to see on the Party list. That was a list which was passed on to the Party office in case should there be some document whereby one could decide who one wanted to join the Party.
Q. Doebig, the President of the District Court of Appeal at that time, testified as a witness-- English transcript, page 1839-- that Rothaug, in 1938, at the wish of the Party Chancellery, was to become Vice President. Can you tell us about your own. observations in that matter?
A. Yes.
Q. What can you tell us?
A. I can tell you this. One day I was called to the office of the Adjutant of Gauleiter Streicher. He told me that the Gauleiter had received an inquiry as to whether he had any misgivings or any doubts about the employment of some judge-- I believe he came from the West of the Reich-- as Vice President at the District Court of Appeals in Nurnberg. I was asked whether I knew the man. I had to say no, because I did not know the man. Then I believe Koenig, Streicher's Adjutant, told me that the man was a Party member, that he was an older member of the Party. Koenig then requested me, on behalf of Streicher, to ask the President of the District Court of Appeal in Nurnberg whether he had any doubts about that position of Vice President being given to the District Court Director Rothaug.
Q. And what did Doebig have to say to that?
A. Doebig said to me that Rothaug was perhaps a little young, but he was one of the most capable, if not the most capable judge within the whole area of his District Court of Appeals. I remember his words very well, because they constituted an opinion on the man. at the end he told me, as far as I remember, that he did not wish to voice any misgivings about Rothaug. It is even possible that his opinion was a little more favorable. I passes that remark on to Streicher's adjutant and I also told Rothaug.
Q. What was Rothaug's attitude to that matter?
A. Rothaug was against it and said he was much too young for such an office; he was far too young merely for the reason that the consellors, the Raete, at the District Court of appeals were far older than he.
DR. KOESSL: Thank you.
I have no further questions to ask this witness.
THE PRESIDENT: Do any other defense counsel desire to examine?
BY DR. SCHUBERT (Counsel for the defendant Ceschey):
Q. Mr. Denzler, you have told us that you were Gauwalter of the NS Lawyer's League and the head of the Gau Legal Office until March 1939.
A. Yes.
Q. The defendant Oeschey came to Nurnberg on 1 January 1939. Did you know Oeschey at that time?
A. No, I did not.
Q. If the Gau Leadership of Franconia had any wishes regarding a change of personnel in the Nurnberg administration of Justice in your position as Gauwalter of the Lawyer's League or the head of the Gau Legal Office, did you play any part in such matters?
A. Yes, as a rule my opinion was asked.
Q. In those positions of yours, which I have just mentioned, did you deal with Oeschey's appointment to Nurnberg in any way?
A. I can in no way remember that I had anything to do with the appointment of Oeschey.
Q Did Rothaug ever express the wish to you that he would like to have the Defendant Oeschey transferred to Nurnberg?
A No, he never said that.
DR. SCHUBERT: You have answered the question, witness.
THE PRESIDENT: Is there any further direct examination?
There appears to be none.
You may cross-examine.
CROSS-EXAMINATION BY MR. WOOLEYHAN:
Q Mr. Denzler, please correct me if I misstate how you testified, but it seems to me you said that you had no intimate connections with Gauleiter Julius Streicher and for that, among other reasons, you could not have caused his attendance at either the Heller-Muendel case or the Schmidt-Fahsel case. Is that correct?
A I did not understand that question this time, but I would like to point out that I did not have intimate connections with Streicher; that is not what I said.
Q Well, if you didn't have any intimate connections with Streicher, and for that, among other reasons, could not have influenced his attendance at these trials we have been talking about this morning, let me show you a document. Please open that document and tell me if that is your official personnel file.
A Well, as I see here - yes, those are files about me, yes.
Q All right. Now, Mr. Denzler, in the questionnaire, in the form containing your photograph, that you find in the front there loose, does it appear that in October 1930, on the personal instruction of the Gauleiter of Franconia, Julius Streicher, you stayed outside of the Nazi Party, but that on the 28th of February 1933, following the Reichstag fire, you rejoined the Nazi Party? Does that appear?
A Well, that may be right. On the 28th of February? Well, may I ask you to tell me again where that was supposed to be?
Q In the questionnaire, in the form containing your photograph that you find there loose, much of it appearing in your own handwriting.
A I did not join then, but, as it says here, I applied to rejoin on that date. And I should like to say this. As early as 1923 I had applied for Party membership.
Q Mr. Denzler, please, I didn't ask you as far back as 1923; I merely asked you if, in your personnel file there, It appears that on the personal instruction of the Gauleiter of Franconia, Streicher, you stayed outside of the Party until after the Reichstag fire.
A I don't know when the Reichstag fire occurred. That my rejoining of the Party -
THE PRESIDENT: Mr. Witness, witness, listen. The question is merely whether certain words appear on the document in front of you. That is all I asked you. Does the statement which he quoted appear in your personnel file?
THE WITNESS: In my questionnaire it says: "Membership in the Nazi Party. (a) 28 February 1933 reapplied for rejoining; and actual rejoining on the 1st of May 1933. Membership No. 1 868 839."
THE PRESIDENT: Just a moment now. You remember counsel read you something with reference to your remaining outside of the Party on the direction of Streicher. The question is, is there such a statement there in the papers which you have before you?
THE WITNESS: Yes, I can now see that further towards the top it says: "1933. until...." And then it says, "1933, did not join the Party at the instruction of Streicher." May I say something to that?
THE PRESIDENT: Thank you, Mr. Denzler. That is all I asked you.
BY MR. WOOLEYHAN:
Q Now further along that line with regard to your, as you describe them, tenuous relations to Streicher, please turn to page 33 of that same personnel file. Now, on page 33, do you find a telegram from the Nazi Party Chancellery, signed "Klopfer ", to the Defendant Schlegelberger, dated 20 September 1941, in which it states that there was an investigation against you because of your participation in the Aryanizations of Jewish property in this area during the anti-Jewish actions of 1937 and 1938, and does it further appear on that telegram, on the reverse side, that your return to Nurnberg from Poland was against the wishes of the Party because of your very close connection to Streicher?
Does that appear, Mr. Denzler?
A May I just read this telegram? I don't know it.
If I may say this, it does say here, "His participation in the Aryanization proceedings of the Gau Franconia has been investigated by the Reich Ministry of Justice", and I can say the following to it
Q Mr. Denzler, please; before you say anything, please answer my question first, which was: On the reverse side of that telegram, which is folded over, do you see -
A Yes.
Q -- do you see any faintly marked portion?
A It says, "On account of his particularly close contact with Streicher, it is not desirable that Denzler should resume his work in Nurnberg." That is what it says here.
Q. Thank you; that was my question. If you found it, that is all.
A But I dispute -- Your Honor, I would like to say something to this.
THE PRESIDENT: You may do so.
A (Continuing) If a Herr Klopfer maintains here that I had entertained particularly close relations with Streicher, then I must say that that Herr Klopfer does not know anything about conditions in Nurnberg. In Nurnberg I had scenes with Streicher and his adjutant which demonstrated anything but close relations.
Q Now you mentioned Streicher's adjutant. Do you refer to SA Gruppenfuehrer Koenig:
A Yes.
Q. Well, in that connection, Mr. Denzler, please turn to page 38 of that personnel file and tell the Court if, on pages 37 and 38, there is a file note of the Ministry of Justice bearing several initials, which, on page 38, states in part the following:
" He, Denzler, was accused of having been a close friend of Koenig, and " -
A It doesn't say so on page 38.
(The document was indicated to the witness.)
Q In that file note, Hr. Denzler, do you find a passage which reads as follows?
"He, Denzler, was accused of having been a. close friend of Koenig and, knowing about Koenig's deeds, of having influenced criminal proceedings against Koenig in order to achieve a result contradicting the actual state of affairs."
A I can't fine that passage here. What it says in a note here is:
"When in February 1939. Koenig, the Adjutant of Gauleiter Streicher, committed suicide , and when after that , in connection with this a commission, which had been established by the Reich Marshal, investigated a number of occurrences with the Gau Leadership at Nurnberg, and in particular the Aryanization of Jewish real estate in Nurnberg and Fuerth, charges were also made against Senior Public Prosecutor Denzler. He was charged with being a close friend of Koenig's...".
Q That is fine, Mr. Denzler. I just wanted to find that passage. It does appear there, I take it.
A and who had known his deeds; that is to say, that he exerted influence on criminal proceedings in order to achieve a result which was not in keeping with the facts of the case."
That charge was raised against me, but it is altogether untenable and it was proven to be untenable. One got confused because I was the head of that agency at the time; it was my predecessor who was the head of that office at that time and who therefore conducted those proceedings.
