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."
The purpose of the letter is revealed by the following: "Apart from the fact that with this treatment of the case there is a definite reason for revision, and considering the fact that the case has been removed from my sphere of competence...."
THE PRESIDENT: Are you reading the document? Are you reading the Exhibit now? You needn't read it, I have it here. Don't read it, we have it here.
A.- Only one paragraph.
BY DR. KOESSL:
Q.- The purpose of the letter is revealed.....
THE PRESIDENT: I think you have revealed it.
A.- Furthermore, I pointed out .....
THE PRESIDENT: You don't need to tell us what is pointed out in the Exhibit because the Exhibit is here with us.
BY DR. KOESSL:
Q.- Witness, what was the main objection which you had to expect?
A.- The main objection which I had to expect was that by transferring the case to another penal chamber, it had been intended to remove the case from the political atmosphere which it would have had if it had come to my chamber. For that reason, I pointed out......
THE PRESIDENT: Are you again telling us what you pointed out in the letter? I say, are you again telling us what you pointed out in the letter which is in evidence?
A.- I pointed out......
THE PRESIDENT: You will not tell us any more what is in that Exhibit. The Exhibit is here. You are directed no longer tell us the substance of an exhibit which is now before us. We are not aware that any charge has been made against the defendant Rothaug in this connection anyhow.
DR. KOESSL: Very well.
BY DR. KOESSL:
Q._ Witness, what success did your letter have, the letter in which you pointed out, that the defendants had been withheld from their legal judge?
A.- Nothing happened, but the president of the district court asked me to go to see him, and told me that he had called on the higher authorities, and he had been informed that that arrangement had been demanded by the Party. I did not expect a different outcome, for the agencies of Administration of Justice on their own initiative would have upset the normal plan of distribution of work, that I considered out of the question. It was not desired that the case should be tried before me.
Q.- In this matter, was the question touched upon which you had brought up?
A No, that was not affected, that matter was by-passed.
Q In this connection did you approach the party or the SD?
A That would have been no use whatsoever.
THE PRESIDENTS You did not ; the answer is you did not.
A No.
THE PRESIDENT: All right.
Q Well, did you use that way to enforce or insure your competency being allowed?
A No, because that would have been altogether useless, for, as I have already pointed out, those were the quarters who had initiated the matter.
Q Why did the president of the other penal chamber not pass the case on to you?
A The presiding judge of the other penal chamber would actually have been under an obligation to refuse the case as not being competent and pass it on to me, but evidently he complied with the wishes; and I would like to point out that all these events occurred altogether outside the sphere of the Special Court, and occurred within the sphere of the so-called regular penal jurisdiction.
Q And how was the case treated?
AAs far as I know according with wishes, that is without attracting any notice and as far as I recollect behind locked doors.
Q And was the judgment passed?
A Yes, judgments were passed and the sentences were adequate, but I do not remember any details.
Q I am now going to ask you a few questions about the SchmidtFahsel trial which has been mentioned here several times in other contexts. You have already stated how it was that the case was tried before a broad public. I am now referring to Exhibit 555, the testimony by Labus. Witness, did this Schmidt-Fahsel trial, belong to that wave of criminal, proceedings against Catholic priests - trials which were being held at that time?
A Opinions differed on that point. We, from our point of view, did not consider it to be a case of that type, but, as I already stated, in a different connection. We had fixed the session for a small courtroom -
THE PRESIDENT : Now just a moment. We have been advised with reference to the size of the courtroom, the gathering of the crowd and the necessity for moving to a larger court. You are directed not to go into that matter again. We are wasting time with matters which won't affect the result of this trial in the slightest degree.
Q The witness Labus testified during the presentation of evidence he had noticed that Gauleiter Streicher gave slips to his adjutant, senior public prosecutor Denzler, slips of paper and he took those slips of paper to the bench, and pushed them across to Rothaug. I considered that event to be a guidance of the proceedings on the part of Streicher. What are your comments?
A Denzler was not Stretcher's adjutant; Streicher's adjutant was Koenig
THE PRESIDENT: Well you please just tell us what the facts are with reference to any slips of paper that were passed to you, and tell us briefly.
A No slips of paper were passed on to me.
THE PRESIDENT: That answers it.
Q Were such slips of paper perhaps passed on to somebody else?
THE PRESIDENT: We are not concerned if they were passed on to some one else. If they were passed on to some one else, it doesn't affect Rothaug. Don't try the whole history of the judicial system here. Limit yourself to your own client.
Q Do you remember what reaction there wa.s in the press to the judgments?
A The Fraenkische Tageszeitung, that was the paper of the Nazi I Party in Franconia, attacked the judgments on account of the extent of the penalty.
It said roughly that the penalties in no way were in accordance with the seriousness of the offenses, in particular if one considered the severity with which the Nurnberg courts had proceeded against members of the Nazi Party, who during the time of the excitement in 1933 to 1934, who in those turbulent times had committed excesses.
Q I an now going to show you Exhibit 554. What is that exhibit about?
A This letter contains a suggestion by the deputy for the Gauleiter Holz of Nurnberg; it is addressed to the Reich Minister of Justice Thierack; and is concerned with the filling of a vacancy of president of the district court of appeal at Nurnberg.
Q When did you hear for the first time of that letter?
A When it was presented here at this trial.
Q, Did you hear before that Holz had suggested you, after Emmert,far that vacancy of president of the district court of appeals?
A I never hoard anything about it at the time. I only heard about it through this letter which I only became acquainted with at this trial.
Q Did Oeschey in any way hint at you that things were moving that way?
A He didn't; he didn't.
Q Can you from the letter, or from other circumstances which became known to you, can you conclude from that that Oeschey ha.d anything to do with that letter?
A I considered that altogether out of the question, for the very reason alone because Emmert is designated as president of the district court of appeals, and in fact he was president of the senate. This is an error. Furthermore, I don't believe that Holz informed Oeschey about this matter in any way because there would have been no guarantee that the matter would not have become known prematurely, and the letter isn't Oeschey's style either.
Q How do you explain that in that letter you are called the Gaustellenleiter, the Gau Office Leader?
A That is either a mistake, a confusion of my functions as Gau Group Administrator of the Lawyer's League, but it may have been done intentionally. It is altogether possible that one felt it necessary to give me a certain political importance in order to give better support to this suggestion to the Minister. That is the purpose of the whole letter.
Q. Were you interested in suppressing that?
A I am not interested in that; I am not interested in suppressing anything here, for whether I was Gaustellenleiter or not, that can be checked up with almost every Gaustellenleiter in Gau Franconia, quite apart from the fact that it was not a position which is considered to have been a criminal organization, and if I made a wrong statement I would only injure myself.
Q Do you know Emmert suggested you for the Oak Leaves?
A I don't know anything about that.
Q The exhibit further says that you had been the very outstanding jurist of Gau Franconia. Did Holz have any insight into your professional work, that is to say did he ever read the judgments passed by you?
A Holz had no insight whatsoever into my professional work. As far as I know, he only read one single verdict, and he disapproved of it. Therefore, he was not able to judge its qualities.
THE PRESIDENT: Ask your next question.
Q It has further been stated that without any doubt you were in charge of the Special Court which was the best conducted special court in the whole German Reich. Did Holz, or the circles around Holz, have an opportunity to follow the activities of the special courts in the Reich so that they were able to make comparisons?
THE PRESIDENT: The witness has already answered that question.
Q It is also mentioned that you regarded it to he your duty to conduct your legal duties from the National Socialist point of view.
A I have already stated my opinion on that question in another context. I regarded it to he my duty to apply the laws, and as we were concerned with National Socialist laws; that impression could have arisen.
Q There is a supplement to that exhibit. It is a supplement to that letter to Thierack. What does that show?
A That confirms what I testified to earlier, concerning these problems. Doebig was given an opportunity to state his opinion. He expressed his loyalty adequately, and that changed Holz' mind to a far-reaching extent.
Q What do you know about that attitude of the judges in Nurnberg concerning the judgments passed by the Special Court?
A I myself never had cause nor time, nor an opportunity to ascertain the attitude of the judges in this direction or another direction, any way not statistically. Any way all I knew was from conversations with others that there was a certain animosity towards me and my assistants. That, however, was based more on envy, and it came from circles who had never attended my sessions nor had they ever seen a judgment that had been passed by us. That was nothing else but the usual spreading of rumors, but in my view the administration of justice should have taken steps against it.
Q Were you ever told names of judges who were connected with these rumors?
A Such names were mentioned.
Q Did you take any steps against any judge on account of spreading those rumors?
A No, not in a single case, for I personally didn't care a bit about the whole matter. It was only my assistants and associates who were concerned, who told me that they were of the opinion that they had to be protected, and, therefore, I made representations.
Q That exhibit also refers to the attitude of the population to the judgments you passed. Did you make any observations about that; or, did you have any experiences?
A I testified about that at an earlier time to the effect that I was oh good terms with all strata and the Nurnberg population and that I could never ascertain any animosity -
THE PRESIDENT: You correctly stated that you had discussed that before. Ask another question.
Q I am now coming to charges connected with -- first of all the execution of the penal proceedings before and during the trial; secondly, concerning your relations with the associate judges and the prosecution -
THE PRESIDENT: Ask your question. You needn't summarize your intentions in advance. We must get along with this case.
Q Was the Special Court like the People's Court an independent court which existed side by side with the other courts, the local courts, the district courts, the district courts of appeal, and the supreme Reich court?
A The name Special Court might lead one to that assumption. In effect, however, the Special Court was a part of the district Court, where it had been set up purely from the organizational point of view. It was a chamber of the district court to dead with special court matters.
Q Did the position of presiding judge at the special court, on principle, differ from that position of presiding judge of another penal chamber?
A No.
Q And was the sphere of work different?
A The sphere of work, too, as concerns the formal position, was the same as the sphere of work of the presiding judge of the penal chamber.
Q Who appointed the presiding judges and the associate judges of the special court?
A The president of the district court of appeal.
Q Who appointed the presiding judges of the penal and associates of the penal chambers?
A The president of the district court.
Q What was the reason that the president of the district court of appeal appointed the judges of the special court and that the president of the district court appointed the judges of the penal chambers?
A The reason was that the work of the special court in many cases extended over the whole area of the district court of appeal, that is to say, it extended over the area of the district of the president of the district court of appeal; it by far exceeded the area under the president of the district court.
Q The witness Ferber, in the English transcript at page 1744, described you as a superior opposite whom one always observed conventional forms. Were you the superior - of your associate judges?
A Naturally I was not.
Q The duties of the presiding judge of the special court are laid down in article 22, Section 2 of the competency order. To be brief, will you please read that out?
AArticle 22 of the law?
Q It is the competency orders.
THE PRESIDENT: Is that in evidence in the document book?
DR. KOESSL: Yes, it is contained
THE PRESIDENT: We have the article. You needn't read it then. Don't read it; it is in evidence.
DR. KOESSL: Your Honor, to Help understand the basic facts in connection with the charges against Rothaug, I think in connection with that it would be advisable to know about the contents of these regulations.
THE PRESIDENT: I think it is in evidence. And, if it is in evidence, we have opportunity to know about it.
DR. KOESSL: This article has not yet been submitted; it has not yet been presented.