Court No. III, Case No. 3.
DP. KOESSL: With Rothaug Document No. 124, which I offer as Exhibit No. 24, by that document I am submitting excerpts from a book which appeared in 1927. This book deals with the duties of a judge, with the technique of examining and with the psychological aspects of examining a defendant. It also deals with the other tasks of the German judge under the German Penal Code. This book shows in particular to what extent all judges concerned themselves with the question in what manner the defendant should be examined and to what extent the judges concerned themselves with the question as to what extent they might be biased by having had insight into the files before the opening of the trial and how great the difficulties are when the judge is faced by a defendant who is not easily to be persuaded to make truthful statements. I submit Rothaug Document 124 as Exhibit 24.
THE PRESIDENT: Received.
DR. KOESSL: Rothaug Document No. 8, which I offer as Exhibit 25, deals with the same question. It deals with the psychological tasks of the judge during examination. This document too deals with the obstacles which the judge encounters and has to overcome while examining a defendant. I offer Rothaug Document No. 8 as Exhibit No. 25.
THE PRESIDENT: Received.
DR. KOESSL: The next document is Rothaug Document No. 9. I offer it as Exhibit No. 26. This document deals with a number of questions from the field of legal procedure during the war. This document also deals with the position of the defense counsel with the submission of evidence, with the speeding up of trials, with the reopening of trials and with innovations from the field of legal remedies, with the nullity plea and the extraordinary objection. I offer Rothaug Document No. 9 as Exhibit No. 26.
THE PRESIDENT: Have you the date of that publication?
DP. KOESSL: The date of this publication -
THE PRESIDENT: Apparently it is after 1933.
DP. KOESSL: Yes, yes; it was published after 1933 and it was Court No. III, Case No. 3.published during the war.
THE PRESIDENT: All right.
DR. KOESSL: It is the twelfth edition of "Deutsches Recht", the journal called "Deutsches Recht" - German Law.
THE PRESIDENT: The exhibit is received.
DR. KOESSL: I think it was published about 1940. At the end of the document your Honor will find a passage by the author saying that his book refers to the state of affairs on the first of September, 1942, and that, of course, makes it obvious that this article was written in 1942.
Rothaug Document No. 176 is offered as Exhibit No. 27. This document deals with the constitutional status of the extraordinary objection. It is an article which was published in January, 1940) in the periodical, "Deutsche Justiz", and only extracts are reprinted here. I offer Rothaug Document 176 as Exhibit 27.
THE PRESIDENT: Received.
DR. KOESSL: In Rothaug Document #170; which I am offering as Exhibit 28, there the opinions are stated regarding the nullity plea. In particular, the question is dealt with as to why the nullity plea is dealt with by the Chief Reich Prosecutor at the Supreme Reich Court and is not dealt with by the public prosecutor; the defendant or the defense counsel.
I offer Rothaug Document #170 as Exhibit 28.
THE PRESIDENT: Received.
DR. KOESSL: Rothaug Document #14 which I offer as Exhibit 29, deals with the position of the judge concerning the extent of punishment. I only wish to quote one or two sentences. In this decision by the Supreme Court, it says:
"In particular the judge is not authorized to exercise the right of pardon. In this respect the legal position has not changed compared to the time before 1933. The change in the concept of Law and State; which has taken place in the meantime, likewise does not release the judge; especially the judge of a criminal court; from his obligations towards the law."
I offer Rothaug Document #14 as Exhibit #29.
THE PRESIDENT: Received.
DR. KOESSL: Rothaug Document #19; which I offer as Exhibit #30, deals with the position of the presiding judge at the t rial. This decision is a basic decision decisive for a number of questions which have been breached in this proceedings here and they explain the position of the presiding judge under the German penal code. As I would have to read the whole document really I am, in effect; restricting myself to draw the attention of the Tribunal to the significance of this document.
I offer Rothaug Document #19 as Exhibit #30.
THE PRESIDENT: I'm afraid there's difficulty with the document book hero. On page 148, Document 19 appears; but it's marked; at the top of the page; as page 2 of the original. The page "which precedes it is marked page 160 and is a part of Document #53.
DR. KOESSL: Document 53 is contained in this book, but in my copy there's no 53 here.
THE PRESIDENT: This book, at the last page of Document #14 has the numbering page 146. The next page is marked page 160 and is a part; apparently; the last part; of Document 53. Page 147 is missing and page 148 is the second page of Document 19. I think there is obviously an error here.
DR. KOESSL: Pardon me, that only happened in the document book which Your Honor has. In my document book the pagination is correct and the page number is 147.
THE PRESIDENT: The book must be corrected.
DR. KOESSL: I shall see to that; Your Honor.
THE PRESIDENT: There seems to be at least two.... All of them are incorrect. All three.
DR. KOESSL: I shall see to it that the pagination is corrected.
THE PRESIDENT: You want to offer Document 19, when and if we find it, as Exhibit 30; is that right?
DR. KOESSL: I am offering Document #19 as Exhibit 30. The next document which I wish to offer is Rothaug Document #29. The exhibit number is 31. This document is a decision by the Supreme Reich Court. It also deals with the question as to the extent to which a verdict might be unjust according to paragraph 34 of the competency Ordinance of 21 February 1940. In the English document book which is before me, this document is on page 152.
THE PRESIDENT: Document 29 is received as Exhibit 31 and it is incorrectly numbered in the index. We have corrected that.
DR. KOESSL: Thank you.
The next document which I wish to offer is Rothaug Document #50. The exhibit number is 32.
THE PRESIDENT: Received.
DR. KOESSL: This document contains an opinion on the question of the law procedure. The next document ......
THE PRESIDENT: Let me get that straight. Document #50, what number do you give that?
DR. KOESSL: Document #50 I offered as Exhibit #32.
THE PRESIDENT: The exhibit is received.
DR. KOESSL: The next document which I offer is Document #51. The exhibit number is Rothaug Exhibit #33. This document is of a similar nature as the previous one. It deals with the formalities of penal procedure, I offer Rothaug Document #51 as Exhibit 33.
THE PRESIDENT: The exhibit is received.
DR. KOESSL: Rothaug Document #54 I am offering as Exhibit #34. This document contains Article 8 of the Judiciary Act which has been quoted frequently, and to which the defendant himself referred in the witness stand.
I offer Document 54 as Exhibit 34.
THE PRESIDENT: Received.
DR. KOESSL: The next document I wish to offer is Rothaug Document 53. The exhibit number is #35. This document deals with the order for simplification and with the mobilization of the staff and institutions of the administration of justice. This document, in connection with Article 8 of the Judiciary Act, is particularly worth mentioning and I only want to quote one sentence from it:
"And nobody is afraid anymore that the administration may misuse this liberty, to 'withdraw a person from his lawful judge'; or to reprimand a judge who has 'made a disagreeable impression' by one of his judgments, and other things similar to these. Just the overcoming of such an atmosphere of mistrust and psychosis testifies to the naturalness of this development."
This passage is significant in regard to the abuse of the order of 1934 according to which judges, in order to overcome personnel diffi culties, could be transferred even against their own will.
I offer Rothaug Document #53 as Exhibit 35.
THE PRESIDENT: Received.
DR. KOESSL: Rothaug Document #36 describes the position of the Party vis-a-vis the state and inside the state. The particular value of this document is due to the fact that it reports a decision by the Supreme Reich Court in the case of an arrest in a civil proceeding. The year is 1939.
I offer Rothaug Document #75 as Exhibit 36.
THE PRESIDENT: Received.
DR. KOESSL: I offer Rothaug Document # 35 as Exhibit # 37. This document shows the tasks of the SD and regulates the collaboration of the official agencies with the SD.
I offer Rothaug Document # 35 as Exhibit 37.
THE PRESIDENT: It's received.
DR. KOESSL: Rothaug Document # 43 contains a decision by the Supreme Reich Court on the problem of the application of article 51-A, Section 2 of the Penal Code. It therefore concerns the question of reduced responsibility of an offender. I refer you to the statements by the Reich Supreme Court, at the beginning, which say:
"Article 51, Section 2 of the Reich Penal Code does not make it mandatory to reduce the sentence, but lays down that the sentence may be made more lenient." Therefore, the decision as the whether the sentence is to be made more lenient and if yes, to what extent, within the scope provided in the law, is left to the discretion of the judge."
A little lower down, the Supreme Reich Court says:
"It is just the mental condition of the defendant which should have given cause to the Court to examine whether it was at all advisable to pass a lesser sentence; for, according to a medical experience, it is wrong always to meet out more lenient treatment to psychological cases than to sound human beings. A person of inferior mentality must make a particular effort to try and overcome his inclinations which endanger the general public. A severe sentence may be designed to point out to him that necessity with special emphasis."
I offer document # 43 as Exhibit # 38 and ask that it be received.
THE PRESIDENT: Received.
DR. KOESSL: Document # 13, which I am offering as Exhibit # 39, contains a decision by the Supreme Reich Court concerning the question whether, in the case of considerably reduced responsibility the death sentence may be passed by applying Article 51, Section 2 of the Penal Code. That decision, Rothaug Document # 13, I offer as Exhibit # 39.
THE PRESIDENT: Received.
DR. KOESSL: Rothaug Document # 45, too, is a decision by the Supreme Reich Court. It deals with the question of the dangerous habitual criminal. It also deals with the question as to how much influence reduced responsibility has, if the application of laws that make the death sentence mandatory, is to be considered, such as is provided by the amended law of 4 September 1941 in reference to dangerous habitual criminals.
I offer Rothaug Document # 45 as Exhibit # 40.
THE PRESIDENT: Received.
DR. KOESSL: I have now finished with Document Book I-B.
May it please the Tribunal, I can now submit Document Book VI if the Tribunal has already received the English translation. I received it in the course of yesterday.
As the first document from Document Book VI I offer Document 143 as Exhibit # 41. This document is an affidavit by the daughter of the defendant, and this affidavit was given, with the permission of the Court, in place of cross-examination on the affidavit which was submitted by the Prosecution.
I offer Rothaug Document # 143 as Exhibit 41.
THE PRESIDENT: Received.
DR. KOESSL: Rothaug Document # 146 is an affidavit by a policeman Stark, who, in the Gaishauser Case was the victim of the attack by the defendant Gaishauser.
I offer the affidavit by this policeman Georg Stark, Rothaug Document # 146, as exhibit 42.
THE PRESIDENT: Received.
DR. KOESSL: The next document, # 147, is an affidavit by a Frau Lina Meiler. This is the woman who, according to the testimony of the witness Ferber, when she was examined in the Gaishauser Case, was supposed to have been twenty years of ago. The witness is alleged to be an entirely harmless peasant girl in those days. She is supposed to have been interrupted triumphantly by the defendant Rothaug so that she no longer dared to testify as a witness, and the like. The affidavit by that woman shows that she was not twenty, at the time, but she was thirty-four when she was examined as a witness. It also shows that she was not a peasant girl, but the wife of a manufacturer, and it also proves that she was not intimidated and cut short.
I offer Document # 147 as Exhibit 43.
THE PRESIDENT: Received.
DR KOESSL: Rothaug Document 142 is an affidavit by Frau Anna Holz. She is the wife of the former Deputy Gauleiter of Nurnberg. From that affidavit it becomes evident that Gauleiter Holz, on the day of the Katzenberger trial, was not in Nurnberg and, therefore cannot -- as the witness Seiler testified -- have attended the Katzenberger trial.
I offer Rothaug Document # 142 as Exhibit # 44.
THE PRESIDENT: Received.
DR. KOESSL: The next document I wish to offer is Rothaug Document # 150. This document is an affidavit by Karl Gehring. This affidavit proves that the defendant Rothaug always adhered to the law. In this case we are concerned with an action on the part of the defendant Rothaug where he prevailed against an SS Fuehrer and thereby saved the life of eleven Jews.
I offer Document # 150 as Exhibit 45.
THE PRESIDENT: Received.
DR. KOESSL: Rothaug Document # 149 is an affidavit by a Frau Auer. This affidavit deals with how Rothaug, if the opportunities existed, made efforts on behalf of people who were opposed to the aims of the NSDAP, when these people were persecuted.
I offer the Auer affidavit, Document # 149, as Exhibit 46.
THE PRESIDENT: Received.
Of a similar type is document No. 141. It is an affidavit by a certain Herr Meyer who had been a free mason and on whose behalf Rothaug in 1942 made efforts because he noticed that this man was suffering disadvantages for political reasons. I offer Document No. 141 as Exhibit No. 47, in evidence of the fact that Rothaug was not guided by political considerations if justice was at stake.
THE PRESIDENT: The exhibit is received.
MR. WOOLEYHAN: May it please the Court, in the English version of this affidavit; in the second paragraph; it state; "...of which I was the director," I am advised that that is a translating error and that the affiant was not the director but the chief clerk of the Nurnberg Special Court.
DR. KOESSL: In the original it states? "...which I was the head of." I would like to thank the prosecution for having drawn my attention to the translating error. I offer Document No. 141 as Exhibit No. 47.
THE PRESIDENT: Well do you and the prosecution agree as to what position this witness had? If you do, we will make the change accordingly.
DR. KOESSL: I am entirely in agreement with the prosecution about the position of that official. He was an official of the medium grade. He was the head of an office. That is the meaning of that passage that has been mistranslated.
THE PRESIDENT: The exhibit is received.
DR. KOESSL: Document Number 139 is an affidavit of Mathilde Eisl. This affidavit refers to the cucig case which the defendant mentioned when he was on the witness stand. The witness, as I see it, at the beginning of her affidavit mentioned the name of the Pole Schuddich, and she wrote it as it is pronounced in German. I believe that the identify of Cucig and Schuddich can be explained by means of the files from the Special Court. I offer Document 139 as Exhibit No. 48.
THE PRESIDENT: Received.
DR. KOESSL: The affidavit by Denzler in this document book, I do not intend to offer as that witness was examined here today.
Document No. 140 is an affidavit by the former President of the Police of Numberg, Herr Martin. I offer Document 140 as Exhibit No. 49.
THE PRESIDENT: Received.
DR. KOESSL: Rothaug Document No. 144 is an affidavit by Georg Achmann. It deals with the suggestion to listen to foreign radio stations with a view to sabotage. I offer Document No. 144 as Exhibit No. 50.
THE PRESIDENT: Received.
DR. KOESSL: Document No. 145 is an affidavit by Dr. Heinz Hoffmann. I offer Document 145 as Exhibit 5l.
THE PRESIDENT: The Exhibit is received.
DR. KOESSL: Document No. 123 is an affidavit by the Former Amtsgerichtsrat, (counselor of the local court.) Groeber. I offer Document 123 as Rothaug Exhibit 52.
THE PRESIDENT: Received.
DR. KOESSL: And the last document which I wish to offer is Document No. 31. It is an affidavit by the former President of the District Court of Numberg, Dr. Siegfried Keller. I offer Rothaug Document No. 31 as Exhibit No. 53.
THE PRESIDENT: Received.
DR. KOESSL: I have now finished with the presentation of my documents. Unfortunately, I have nothing else to offer to the Tribunal for today.
MR. WOOLEYHAN: May it please the Court, Exhibit 554 was marked for identification. I now offer it together with English and German copies.
THE PRESIDENT: Exhibit 554 is received.
MR. WOOLEYHAN: I likewise offered Exhibit 555 for identification. I now formally offer that document in evidence with the requisite English and German copies.
THE PRESIDENT: The exhibit is received.
MR. WOOLEYHAN: Thank you, your Honor.
THE PRESIDENT: The Tribunal will recess until Monday morning at the usual hour.
(The Tribunal recessed at 1630 hours, 15 August 1947 until 0930 hours 18 August 1947.)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 18 August 1947, 0930-1630, Justice James T. Brand, presiding.
THE MARSHAL: Persons in the courtroom will please find their seats The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this honorable Tribunal There will be order in the Court.
THE PRESIDENT: Mr. Marshal, you will please ascertain if the defendants are all present?
THE MARSHAL: May it please, Your Honors, all the defendants are present in the courtroom with the exception of the defendant Engert who is absent due to illness.
THE PRESIDENT: The defendant Engert is excused. The notation may be made. You may proceed with the examination of the defendant Rothaug.
OSWALD ROTHAUG - Resumed DIRECT EXAMINATION - Continued.
BY DR. KOESSL:
Q Witness, the presentation of some document in connection with the examination of witnesses, as well as some questions to those witnesses make it advisable to raise a few questions concerning the Question of the Administration of Justice and political agencies. The witness Denzler was asked whether on the occasion of the trip to Munich in connection with the execution whether he didn't at that time also visit the camp at Dachau. He was also asked whether you didn't go with him to Dachau. Denzler said that it was possible, and now I am asking you, therefore, did you go to Dachau Camp with him, or didn't you?
A I did go to Dachau.
Q How, would you please tell the Tribunal how it happened that you went to Dachau?
AAfter we had dealt with matters at Munich-Stadelheim, we went to our hotel, the Rheinischer Hof, and we spent the night there. We intended at forenoon the next day to go back to Nurnberg. In the course of the morning Denzler came to see me in my hotel room to tell me that Streicher had sent him a message saying that we could go and pay a visit to the Dachau Camp; and he then, Denzler, wished to go to Dachau on the way back to Nurnberg. The matter was expressly embarrassing to me, not because of Streicher or because of the camp at Dachau which was known all over Germany and the whole of the world as an institution; and furthermore, that institution interested me because frequently we had official contact with rumors about Dachau Camp. The matter was unpleasant to me only because that evening I intended to catch the evening train to Wuertzburg in order to go to my home because Christmas was coming on. Denzler thought that one couldn't very well refuse. He would see to it that in any case we would get the evening train. This visit was concerned with the customary exercise of clemency at Christmas which Streicher wanted to see at Dachau Camp. I spoke with my two associate judges, and they didn't have anything against it either, and thus we joined the column of 5 to 6 cars. In our car, which belonged to the Administrartion of Justice, we thus went to Dachau Camp.
Q And then what happened?
A We stopped outside of the administrative buildings and waited to see what would happen.
Q What you saw in 1938 was not in accordance with what you had thought you would find at a concentration camp?
A What I saw of the camp, I don't remember particularly well. What struck me compared with the rumors that were going about was the great tidiness and cleanliness as far as the outer appearances of the camp was concerned.
Q Were you conducted over the camp, and were you shown the installations? 7180
A No, that was not done, and nobody discussed matters of that kind. I was only able to see what one could see from the square in the front of the administrative buildings, and what I saw were broad, wide, clean roads across the camp and some huts.
Q Did you see any prisoners?
A I believe I can remember that I saw a detachment of workers, numbering 10 to 12 people.
Q What happened then?
AAfter some time, perhaps it was a half an hour, we were taken to a hall which was quite close to the administrative building. When we arrived, a number of people from Franconia had assembled close to the administrative building who had joined Streicher's entourage.
Q Please describe to us in brief what happened at the hut?
AAt the huts a number of inmates were standing in two ranks. They were people from Franconia. Streicher addressed, them, and afterwards talked to each one of them about his past, about the reason for his detention, his family, his plans, and his general attitude, and other questions that customarily were asked on such occasions. We were the only civilians present, and we stood aside. After some time, I directed Denzler's attention to the fact that we, alter all, wanted, to go back. The one thing was because I wanted to catch the train, and for another thing, my two associate judges did not display much interest in these events and also wanted to go back home; therefore, we separated from the others, and before the matter was over, we went to Nurnberg in our own car.
Q You said that the hall was quite close to the administrative building. You didn't get far inside the camp, did you?
A No, I didn't get far inside of the camp. I only saw roads and huts.
Q Did. you see yourself anything illegal or did you hear of any thing illegal happening there?
A No.
Q Do you know whether the people on whom clemency was to be exercised that Christmas actually had clemency exercised on them?
A Concerning the outcome of that, I don't remember it.
Q Did you talk to other persons about that matter?
A It is possible that I talked about it, for it wasn't a bad thing.
Q Were you able to satisfy your interest in Dachau Camp?
A What would have interested myself and my two associate judges was how the people lived there, what the accommodations were like, what the food was like, how they spent their leisure time, what work they did, their canteens, etc., and in particular the methods by which discipline was maintained. Of that, we neither saw anything, nor did we notice anything, nor did we hear anything about it.
Q Did you catch your evening train?
THE PRESIDENT: Let's get along. We are not concerned with the itinerary.
BY DR. KOESSL:
Q Before you paid that visit to Dachau, and afterwards -particularly during the war - did you have another opportunity to enter a concentration camp?
A I never again entered a concentration camp, neither before my visit to Dachau nor afterwards.
Q In the Heller-Muendel case of which you talked, the question was put whether those two persons were Jews or foreigners. Can you answer that question?
A Both persons were Germans. They were German citizens. The Muendel woman came from Austria. Heller came from Schwarzenbach in Upper Franconia. They were neither foreigners nor Jews.
Q And now I am going to put to you Exhibit 553. Please tell me what that document is concerned with?
A This is a letter which on the 28th of November 1939 I wrote to the president of the District Court of Appeal in Nurnberg, and my letter was concerned with the distribution of work.
Q.- Can you tell us for certain today that it was you who wrote that letter?
A.- I can say so with absolute certainty even without having seen the original for it is the style which I used to employ on such questions. Furthermore, I remember the events well.
Q.- Would you please tell the Tribunal in brief about the background of that letter.
A.- Shortly after the Herr-Muendel case, a case which has been mentioned here a great many times, it must have been approximately in February of '39, Streicher's adjutant, a man whose name was Koenig, shot and killed himself. He got in an affair with an actress, and there were consequences from that affair. With the aid of certain medical high functionairies of the Party, the Nurnberg gynecologist interrupted the pregnancy for no other purpose than to bring about an abortion. It was no longer possible to keep the matter secret. Koening by committing suicide withdrew from all responsibility. In spite of that background, Koenig with a great deal of to do by his attendants of the members of the Party and the Armed Forces was buried. That was how the scandle broke loose. Streicher was out of favor with Hitler and was no longer allowed to appear, and that was known all over the town. Proceedings were instituted against those persons who had taken part in bringing about the abortion. Among them were high functionaries of the Party, and I was kept informed about the natter because my chamber was competent for dealing with the case.
Q.- Was the indictment filed with your chamber?
A.- It was not filed with my chamber, but against our expectations the indictment was filed with another chamber.
Q.- And how did that matter of the 28th of November '39 come about?
A.- I heard of the events. I discussed the matter with my staff, and we unanemously agreed that the plan of distribution based on the Judiciary Act had been upsets and we decided to protest against that.
And that is how it happened that I wrote that letter on the 28th of November 1939. That letter was intended to be a protest, and which was intended to show the agencies who had played a part in the matter that we had observed the matter and that we had judged it correctly.
Q.- And what was it that made you think a legal incorrectness had occurred?
A.- There was no doubt that my chamber was competent. As I pointed out in my letter we were competent for penal cases where the defendant or the persons who had been injured occupied an important political office or where otherwise persons of the Reich, the Reich Government, or the Nazi Party and its formations were affected. Chambers with such limitation of competency were everywhere in the Reich, and I pointed out that the Supreme Reich Court had expressly acknowledged that competence as legal. Furthermore, I pointed out that on the basis of that ruling, steps were taken when by mistake indictments were filed with other chambers; in such cases the president of the chamber had passed the case on to me for me to examine it to see whether it was not a so-called political penal case which meant that I was competent. That is obvious from this letter for it says here, "I have now heard accidentally that in the well-known case of Simon and other persons in connection with the abortion, an indictment has been filed with the first and second war penal chamber, and that on the basis of an instruction received by an official from the Reich Ministry of Justice, although the case as no other before, belonged within the sphere of work of my chamber. The adjutant, Oberfuehrer Koening of the Gau played a decisive part in the matter. That reason alone, and even more, the effect which this penal case has had affected the interests of the Nazi Party essentially. Beyond that, there are affected by the proceedings as defendants Dr. Will, the Gau Office Leader, and Dr. Apostopolos who also occupied a political office."