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.
It is contained in my material, but it is not contained in the document books which I have already submitted.
THE PRESIDENT: I understood you to say it was. I perhaps misunderstood you.
DR. KOESSL: It has not yet been offered as an exhibit. This paragraph is contained in one of my document books which I am going to present.
Q Would you please read Article 22, Section 2.
AArticle 22, Competency Order, Section 2. The decision about opening of a, trial is abandoned. The application by the prosecution for t he instituting of a trial is replaced, by an application that the trial be ordered. When the indictment is received, the presiding judge -
THE PRESIDENT: Just a moment. Mr. Wooleyhan, do you recognize the document that he is reading?
MR. WOOLEYHAN: No, Your Honor, I don't.
THE PRESIDENT: Well, I do. If you are going to introduce it in evidence, you needn't read it. I think the government has already put in a similar provision. There is no object in reading something and then putting it in evidence too.
DR. KOESSL: Very well.
Q The witness Ferber described the work of the special court at Nurnberg -- outside the trial. I quote: -- English transcript at page 1350. "Decisions and statements outside the trial were enacted almost always by Herr Rothaug alone. Insofar as further signatures were required, there was a pencil note on who would have to co-sign, and in that form the documents were circulated by him through the office. I am referring to decisions to reject, for example, an application for a motion for evidence, a motion for evidence which has been made before the trial, or a rejection of a complaint, which had been registered, inadmissibly, for it was impossible to contest decisions of the special court; or, Herr Rothaug had passed on a document to the prosecution and had given his reasons, and his reasons being not in accordance with the views of the prosecution.
There was no consultation among the judges, in the meaning of the judges arriving at a decision, but, as I say, Herr Rothaug wrote his opinion down, and circulated it outside the trial." Ferber in cross examination confirmed. that that procedure was in accordance with the custom of the regular courts, and that you did not exceed your duty - English transcript 1727. All the same, would you please comment in general about these questions?
A Concerning this sphere which has been mentioned, I acted, in the same way as was customary with all courts in the cities of Germany, but I would like to point out that the decision which plays a part in this case, was almost exclusively the decision to reject a complaint concerning a warrant of arrest issued by the investigating judge.
It was a so-called formal decision. When the question of a complaint arose, I just filled in the forms one way or another and then circulated the forms to my associates. If one of my associates did not agree with the suggested decision, he decided on a proper decision that might be reached, and in that case we discussed the matter. I don't remember that matters ever took that formal course, but nobody could have any disadvantage from that.
Q. Did Ferber ever object to that way of proceeding, or did he oppose the contents of a suggested decision?
A. Nothing of the kind happened.
Q. Ferber does not mention a decision concerning complaints against warrants for arrest, but he mentions a decision concerning a motion for evidence which had been made before the trial -- English transcript page 1350. What kind of decisions were they?
A. To put it in one sentence, after the indictment had been filed with me and had been sent to the defendant and the defense counsel, and when the date for the triad had been set, at that moment the defense counsel, if he considered it necessary, made a. motion that more evidence should be presented -- that is, more evidence than had been listed in the indictment -- and that such evidence should be produced at the trial. He could ask for a certain witness to testify to certain facts, and he could ask that such a witness should be heard at the trial If possible, we had to make a decision before the triad was held so that the defense counsel might be given an opportunity to call and to produce that witness.
Q. Ferber maintains that you drafted the decision and passed it on to the associate judges for their signatures. Is that what happened?
A. That was not possible according to the order of proceedings, because, on such a motion for evidence, not the Court had to decide, but the presiding judge alone.
Q. Will you now please read Article 219 of the Penal Code?
THE PRESIDENT: Is this also an exhibit which you propose to offer?
DR. KOESSL: No, this Article has not been presented.
THE PRESIDENT: Do you propose to offer it in evidence?
DR. KOESSL: No, I have not prepared the.
THE PRESIDENT: It has not been offered by the prosecution either?
MR. WOOLEYHAN: No, Your Honor, that Article is not in our document books.
TEE PRESIDENT: All right, go ahead.
BY DR. KOESSL:
Q. Article 219.
A. Article 219, from Loewe, Penal Proceedings:
"If the defendant demands that witnesses or experts be called or that more evidence be procured for the trial, the defendant, by stating the facts about which evidence is to be produced, must submit his motions to the presiding judge of the court. The ruling issued in reply to his motion must be accounced to him."
Section 2 is uninteresting.
Q. Please also read annotation 1 in that commentary by Loewe.
A. "As to the ruling concerning the motions by the defendant about evidence, such decision must be made not by the court, but by the presiding judge."
I believe that is sufficient.
Q. Were those laws generally known?
A. Yes, those laws concerning that legal situation were naturally known generally.
Q. What about rejecting a complaint which had been made, although it had been made inadmissibly? That is the way Ferber put it.
A. Here again, the ruling which he criticizes was impossible under the law. Concerning such an inadmissible complaint, the Penal Send of the District Court of Appeal, and not the Special Court, had to decide. The normal case was that the defendant protested against a warrant of arrest issued by the Special Court.
That complaint was inadmissible, but it wasn't the Special Court, it was the Penal Senate of the District Court of Appeal that had to decide.
Q. Please read, from the Loewe--Rosenberg commentary, footnote 61 regarding Article 306.
A. Note 6, concerning Article 306, says:
"The Court of the first instance is not competent to reject a complaint which is found to be inadmissible, but such a complaint must be submitted to the court dealing with compalints, 'Beschwerdegericht'."
Q. Was that general knowledge too?
A. Naturally, that was a matter of general knowledge too. It happened frequently, and every presiding judge and every member of a special court knew it.
Q. Were complaints admissible when, before the trial, the presiding judge had rejected a motion?
A. Such a complaint was not admissible, and it was not admissible with any court. That is evident from Article 305 of the Code of Penal Procedure.
Q. Please read Article 305, of the Code of Penal Procedure.
A. "Article 305, Code of Penal Procedure.
"Decisions by the courts who are competent to pass judgment;
"Decisions by such courts prior to passing judgments are not subject to complaints, with the exception of decisions concerning arrests, confiscation, or fixing a penalty , as well as all decisions which affect third persons," That is to say, a motion for evidence is not affected.
Q. Was such a complaint ever made?
A. I never saw it happen, and I do not believe that it was at all possible because every defense counsel knew that a motion for evidence which had been rejected before the trial could, at the trial, be made again.
THE PRESIDENT: You say it could be made again?
THE WITNESS: Yes, it could be made again. By that I meant to say if, before the trial, the motion had been rejected, the defense counsel had the right to make that motion for evidence again, giving the same reasons or other and better reasons, at the trial. It was then not the presiding judge who had to decide about that motion, but the court.
BY DR. KOESSL:
Q. In that connection, Berber mentions a case where you sent to the prosecution a document expressing an opinion. What is that about?
A. That matter does not properly fit into this context because that document was not an order or a ruling, but it was just an opinion that was voiced there which, in the interest of preparing the trial, had been written by me as the presiding judge. It was a letter concerning the Kleinlein-Schaller case, where I pointed out to the prosecution that the Schaller case, which was connected with the Kleinlein case, had been incorrectly described by them legally, according to my view.
This opinion of mine, which was not based on formal legal facts, naturally did not need the signatures of my associates.
DR. KOESSL: That letter by Rothaug is mentioned in the Oeschey . affidavit, Exhibit 223.
Q. At another place--English transcript page 1704--Ferber asserts that the defense counsel felt themselves curtailed in their activities because Heir Rothaug, before the Trial, as a matter of routine, had refused written motions for evidence and that the court -
THE PRESIDENT (Interposing): We have passed the time for our recess; 15 minutes.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
DR. KOESSL: I ask to be permitted to continue.
BY DR. KOESSL:
Q.- Witness, in a different passage on page 1704 of the English transcript, Ferber asserts that the defense counsel had felt restricted and I quote, "because of the fact that written motions for evidence had been rejected by Rothaug before the session and that the calling of this or that witness had been considered irrelevant and therefore rejected."
What can you say in connection with that?
A.- In order to answer a reproach and to give reasons in my answer, it would be necessary to describe an example. An example would have to be offered to show that I ever rejected a motion for evidence before the main trial; that I had done away with that motion as the witness says because he apparently wants to say that the intended motion was not considered as important as it should have been. Generally speaking, I can say that whenever a motion was made for evidence, I examined it carefully and decided it, basing myself purely on the question whether that means of evidence or the fact which was to be proved by it was relevant for the evaluation of the facts in the case and was of any importance for it.
If I arrived at the result that it was important, then the witness, for example, was called. If I arrived at the conclusion that it was not so, then, as it was my duty, I refused to have the witness called and explained in detail what reasons I had for that refusal.
In this connection may I point out that particularly before the Special Count it would have been a very clumsy procedure if I had refused to accept any means of evidence or any proof of facts relevant for the case because in doing so one would have created the basis for a retrial. That also explains that particularly the sentences pronounced in our Special Court were very carefully worked out in order to assure that no double work had to be done afterwards.
Therefore, I want to say that it was our intention to work extremely carefully and that required us to use, as far as possible, as exhaustively as possible, all tangible matters of proof.
Q.- Ferber mentions a motion made by attorney Kroher - K-r-o-h-e-r on page 1704 and 1705 of the English transcript. That attorney filed a motion directed against a medical opinion and his intention was to have the defendant examined in a public mental institution. Since there was no possibility of appeal against decisions made by a special court, that objection could not have been passed on; and an objection which would have had a disciplinary proceeding as its consequence did not come about because in the meantime the main trial had been scheduled and attorney Kroher had himself represented in court by an. assistant. That can you say about that, witness?
A.- Particularly as far as that case is concerned, we succeeded in obtaining the files in question. This is what actually happened: First the defendant had been examined by the official doctor of the court who considered him fully responsible. That medical opinion had not been submitted to us, that is, to the court, but to the public prosecutor. After we had received the indictment the defense counsel made the motion that the defendant should be brought into a mental instition, in order to have his state of mind examined there. That was the situation at that time, that is, before the main trial, and I had to do something about it.
Q.- Now, would you please read Article 81 of the Criminal Code of Procedure and the footnote No. 4 pertaining to it?
A.- In order to evaluate that situation I had to refer to Article 81 of the Penal Code of Procedure which was competent for it and I quote: "For the preparation of an expert opinion about the state of mind of the defendant the court, upon a motion made by an expert and after hearing the defense counsel, may order that the defendant be brought into a public mental institution and be observed there."
Paragraph 2 is not interesting. Paragraph 3 is as follows: "An immediate objection can be made against that decision which can only postpone the effect of the decision."
Q.- And then Footnote A.
A.- Here it is set forth footnote A. That is in Loewe's Commentary of the Code of Procedure: "The examination of the state of mind of the defendant has first to be carried out by the official court physician or by another physician or by several physicians. Without a motion on their part or a motion by anyone on their part, that measure cannot be taken. The participants in the trial can only suggest a motion of that kind, but they cannot file it. That motion is decided by the court at its own discretion." I believe that is sufficient.
Q.- Why did you send that motion to the court physician of the district court?
A.- The motion made by defense counsel in accordance with that regulation I first forwarded to the court physician with the request to have him state his opinion, whether he, as the physician competent to do so, intended to file the formal motion to have the defendant transferred into a mental institution. I was obliged to forward the motion by defense counsel to the doctor because only the doctor, not the defense counsel, was entitled to file that formal motion for transfer into a mental institution. That can be seen from the text of the law.
Q.- But defense counsel made a motion, didn't he?
A.- As for that motion by defense counsel, that is only a wrong expression used. According to its legal nature that motion made by a defense counsel was only a suggestion, not a formal motion.
Q. And did the doctor file the motion?
A. The doctor specifically refused on his part to request the transfer of the defendant into a mention institution because he did not see any cause for that.
Q. And what happened thereafter?
A. As can be seen from the files, I notified defense counsel that his suggestion could not be carried out because the physician competent to make that decision, according to the law, had not filed that formal motion.
Q. Therefore, that matter was handled a sit should have been?
A. Yes, it was.
Q. We will refer to that procedure again in the case of Gaishauser. One more question of a principle nature. Ferber says, "Since there was no recourse against decisions by the People's Court, any detailed appeal could not have been passed on."
THE PRESIDENT: Pardon me. Do you mean the People's Court?
DR. KOESSL: The Special Court; I am sorry.
BY DR. KOESSL:
Q. On the basis of Paragraph 81 was there no recourse against that decision?
A. Here again the opinion expressed by Ferber is completely wrong. As for the decision to have the defendant transferred into a mental institution, there is an immediate objection, that can be made, that is, in cases before ordinary courts. Before special courts, this decision also, that is, the decision for transfer of the defendant, cannot be appealed because decisions by the Special Court could not be appealed. However, as far as the transfer, as wa,s the case here, was refused, that decision, neither before ordinary courts nor before special courts, is open to appeal.
Q. Will you please read Footnote 9 to paragraph 81 in Loewe's Commentary?