THE PRESIDENT: Will you specify -- you say you knew about the case. Would you specify in each case that you mention whether you tried it or not? Did you try these cases?
A. Yes. What I meant to say is that I had tried these cases. If I said that I had to do with them, and in the case of these three Poles, for instance, it is of importance whether the people were brought to work in Germany or not; and I wanted to explain that these were people who quite voluntarily and for criminal reasons had come to Germany and were apprehended after committing burglary and murder. The following cases, Gruber, Becher, Bayer, Fiernak, Schulz, Stockmeyer, Rosskopf, Rottenkolber, I remember by name.
Q. The names before Rottenkolber apparently you did not remember, is that right?
A. Also in the case of these names it is quite possible that I tried the cases, but I could not say so. There is also the possibility that others were presiding. I only want to mention the cases now of which I am absolutely sure. The case Katzenberger - I was presiding judge in that case. Also in the case of Schieber, Wilhelm; in the case of Tiefl, Johann; Ketterer, Christian; Bellmer, Elisabeth; Grasser, Friedrich; Schegerer; Koziak, Adam; and in connection with this case I want to state that the death sentence wasn't our sentence, but as is noted here the sentence by the Reich Supreme Court of the 7th of November 1942 and executed on the 9th of January '43. That was a case which a Pole had given a pair of pants to a Serbian prisoner of war in order to make it possible for him to escape to his family. In the case of Lopata I was presiding judge. Strus, Durka, I was also presiding judge. Reges, Robert, I believe that I was presiding judge in that case. In the Kleinlein-Schaller case, also in the case against Platzer; I believe that I also presided in the case of Eisenhofer, Franz. How complete this list is, of course, I cannot say. Toward the end it sort of becomes thinner, but I do not happen to remember any name from the time of my work which is not listed here.
Of course, as I emphasized repeatedly, there is the possibility or even certainty that I presided over a number of other cases outside of those that I mentioned, but if I am asked to point them out on the basis of my recollection alone, I could not do it, and that problem could be solved by the method which I have suggested. A question which may be of importance here is the one which was touched upon by the witness Elkar, who asserted that the decree against Poles and Jews had not meant much in the practice of the Special Court in Nuernberg because even before that decree had come out I had interpreted the law in such a manner that I did not need that decree against the Poles. However, a comparison made among the persons on this list shows that there was an increase in numbers of Poles sentenced to death after that decree had come into force, and then I also have the following to say: When I left Nuernberg, I had marked down all the names of individuals on a slip of paper who had been sentenced to death in cases over which I had presided. I believe also that I marked down next to each individual name where the sentence had been executed and where it had not, but I am not sure of that because for future cases it was often of importance to know what opinions existed somewhere else, and I believe that I can say almost with certainty that the number of death sentences which I have thus marked down was around eighty. I have to add, however, that list contained all of them, also death sentences pronounced by the Court of Assizes, and also sentences which had not been executed but commuted. I could not say anymore at this moment in connection with that list.
Q. What was the procedure according to which the associate judges were determined for individual days.
A. That procedure was drawn up on the basis of Article 69 of the Judicature Act.
THE PRESIDENT: What did this figure 80 represent? The cases in which you presided or all of the cases in which the death sentence was pronounced?
A. No, no, I said I only marked down those death sentences which I personally was presiding judge.
BY JUDGE HARDING:
Q. Was that also the penal chamber in the district court?
A. No, those are death sentences which had been pronounced in my district and the Court of Assizes, and the Special Court that were in that district. That list also contained death sentences which had been pronounced at the Court of Assizes when I was presiding. In addition they contained also sentences contrary to this list where the sentence had not been executed but commuted by way of clemency procedure.
Q. Eighty cases in all courts, and some of those you say were commuted subsequently?
A. No, of these 80 the majority certainly was executed, while a certain percentage was not executed because it had been commuted by way of clemency procedure.
BY DR. KOESSL:
Q. You just said that according to Article 69 of the Judicature Act a roster was set up for the associate judges for the individual days. Would you please read that provision as we find it in Loewe's Commentary on 1146?
A. Article 69 in Loewe's Commentary on the Judicature Act says as far as the penal chamber is concerned, the presiding judge distributes the work to its members. That provision is also important in connection with other questions.
Q. The witness Gross asserts in his affidavit, which is Exhibit 221, that before the session already you had put a red exclamation mark on those cases which according to your intention a death sentence should be pronounced which showed that you were prejudiced. What would you say to that?
A. I can briefly say the following. That entire question of the exclamation mark contradicts itself. If I only may be permitted to explain the office routine with reference to it. This is what happened. When I received an indictment, and I came to the conclusion that possibly this may he a case for a death sentence, then by law I was duty-bound officially, that is to say, without any motion being made, to appoint a defense counsel.
By that act of appointing the defense counsel, therefore, it was clearly manifested to everyone what my opinion was and what possibly my opinion would be in the main trial of that case. It is important to know that. In addition to that, in most cases the indictment itself made it clear what possible penalty was expected and--
THE PRESIDENT: Just a minute. We will recess until 1:30 this afternoon.
(The Tribunal recessed until 1330 hours, 18 August 1947.)
AFTERNOON SESSION (The Tribunal reconvened at 1330 hours, 18 August 1947)
THE MARSHAL: The Tribunal is again in session.
DR. KOESSL: May I continue, please?
OSWALD ROTHAUG -- Resumed DIRECT EXAMINATION -- Continued.
BY DR. KOESSL:
Q.- Witness, please continue the explanation of the last question.
A.- This morning I finished saying that there had been no reason for designating certain cases as getting the death sentence in the session diary by putting a read exclamation mark there. The reason for that exclamation mark was this. The new cases were entered as they came in, and the day and the hour was marked and fixed and duly entered in the session diary. Regularly one could tell by the offense and the number of witnesses -- both had been entered in the session dairy -- one could tell by that roughly how long the trial would last. By leaving open the interium period the next case was set. Frequently, however, it was necessary to try other cases during those intervals in the hope that one would somehow manage, but it happened that cases came before the court for which only a few witnesses had been called but which were very extensive all the same. So that a new trial shouldn't be set too soon after, or no other cases were set in between, one put an exclamation mark behind the critical cases which was intended to ask for the needed time. As I myself was frequently away out of town and my deputy dealt with the session diary during my absence, that arrangement was necessary. All knew the meaning of it. That is what I have to say to the question of the exclamation mark.
Q.- In the same Exhibit 221, Gross continues by saying that you had never passed on the files to associate judges for their perusal before the trial and that hereby you made the associate judges uninformed lookers on kept them under pressure in a satanic manner.
In the affidavit by Groben, too, 224, it is maintained that until the trial, you alone had the knowledge of the contents of the files. Thus, the associate judges had only had secondary importance.
Q.- I have to say this. When the indictment together with the files had been received, the day for the trial was scheduled. From the date on which the trial was fixed until the opening of the trial, as an average and as a rule there was a time intervening of two to three weeks. When the date had been fixed, the files were sent to the office where the indictment was filed and from where the witnesses were called. After two or three days the files were returned to me and were placed on a special table in the order of the dates. That was the method in which they were filed in my office. From the diary which I kept on my desk, everyone of my assistants could see to what sessions he had been assigned and everybody did look there for everybody was interested to know whether he had been assigned to Nurnberg or to a place outside of town. If he wanted to peruse the files, he went to the table where the files were openly displayed, took the files which concerned him, and was then able in his office to study them in peace. Afterwards, he returned the files to the table. That was my method for 6 years. Nobody was prevented from studying the files, nothing was locked in my office, everybody had access to everything. Naturally, I did not think that it was my job to carry the files after Mr. Gross. On account of the strain of my work, I did not have time to do that; besides there were people who were young enough to make it possible to let them carry out these few small tasks. As to how I am supposed to have made by associate judges into mere lookers-on and have given them places of only secondary importance, and keep them under pressure in a satanic way, that is something which my mind cannot comprehend. Never did Groben complain to me that he was having difficulties in getting hold of the files. It did happen that an assistant told me that he had not gotten around to examining the files, and it is altogether possible that I may have said that wasn't necessary because the facts of the case were simple and the matter would be discussed in detail at the trial.
I personally as an associate judge almost never examined files before two trial because the whole contents of the files as far as it was to become the basis of the judgment has to be discussed at the trial, and may only be used as a basis of the judgment in the form which is given to the material at the trial. Quite apart from that fact, I cannot understand to what extent in that manner any pressure could have been asserted. After the trial, the files were sent to the expert, that is to say, the associate judge who was to write out the judgment, who received the files; that is to say, if he wanted to, he, in any case, had the opportunity to control the matter and to check up as to what extent I had made the results of the trial the basis of the judgment. I never saw it happen that my attention was ever drawn to the fact that I had omitted one circumstance or another at the trial.
THE PRESIDENT: The next question.
Q.- Under cross examination, Gross asserted that you had distributed the associate judges in such a way that they would offer the least resistance. The page in the English transcript is 2880.
A.- I myself must say that I cannot remember a single case where anything happened which one might describe as opposition. In our chamber things were no different from what they are in all chambers all over the world, that is to say, when one dealt with the material, one tried to get to one unanimous opinion and that was in the interest of that goal. The legal question and the substantive question were discussed from that angle. I never assigned stuff from the point of view that I didn't want to have a certain associate judge at a certain trial.
THE PRESIDENT: You have answered the question. Let's stop when you finish.
Q.- Who were the associate judges in the Katzenberger, Krasser and Lopata cases, just to mention a few special cases which have been discussed here?
A: Those three cases of which special emphasis has been made here, in my view themselves refute the charges which have been made against me.
THE PRESIDENT: Just a minute. The question was who were the associate judges in those three cases. Answer the question who were the associate judges in those three cases. Name them.
A: In the Grasser Case, Ferber and Gross were the associate judges; in the Katzenberger case, Ferber and Hoffmann were the associate judges; in the Lopata case Ferber and Pfaff were the associate judges.
Q: Affidavits Escher, Exhibit 223, Groben Exhibit 250 and Rauh affidavit 255, describe the setting of trial in courtroom 600 as a sign that the death sentence was to be expected. In what cases did you decide that Room 600 was to be used?
BY THE PRESIDENT: Let me just ask you a question. Is your answer going to be that you decided to use 600 when the audience was so large that the other court would not contain the people? I think you have answered that before. I am asking you again.
A: No, no, my answer was going to be a little different, Your Honor.
Q: Go ahead, you made that other answer already. Go ahead.
A: I wanted to say, considering the charge that has been leveled against me in this connection, I would like to mention the same ideas here as the one that I had to tell you about in connection with the red exclamation mark in the session diary. Court Room 600, as such, could not terrify anybody because it was known beforehand that a case was to be tried there where the death sentence had to be expected.
Further more Court Room 600 had been decided for such cases by the administration of justice because Courtroom 600 was the largest room.
Q: Were other cases tried in Court Room 600?
A: Other cases were heard there too. Probably far more cases were tried there for other kinds of trials than for cases where the death sentence could be expected.
Q: In two cases, that is the Heller-Muendel case and the Turla and Struss case the charge has been leveled against you that by fixing the trial at a very early date you curtailed the preparation of the defense considerably. The witness Ferber said about the Heller-Muendel case, English Transcript page 1326, -- especially outside Nurnberg in a peculiar manner to have set up a record, had set a date to the effect that between the commission of the offense and the apprehending of the criminal, until the holding of the trial and execution of the sentence, that as little time as possible was to elapse between these events. Nurnberg, with Denzler as the senior public prosecutor, had the ambition to demonstrate how speedy in Nurnberg some person could be dispatched from life to death; and Rothaug and the special court, with Rothaug as presiding judge, was placed into the service of that idea. What are your comments?
A: My comments are this: The reason for promulgating the motor trap law was that robberies at that time were occurring like epidemics out on the autobahn. To counteract that occurrence there was a general instruction that such cases were to be dealt with as quickly as possible, naturally while observing the legal guarantees. I do not know that other special courts acted particularly quickly, but one thing I want to exclude and that is the establishing of a record, in the way of a game of sport, for disposition of cases did not play any part here at all.
Anyhow, that was not the idea in the Heller-Muendel case.
Q: When was that offense committed?
A: That has already been discussed here. The date of the trial has already been answered and the date when judgement has been passed and the date when the sentence was carried out has been mentioned here. The Tribunal also knows what kind of an offense it was. The Tribunal knows that the two lovers had committed robbery with assault in the neighborhood of Nurnberg.
Q: Did the defendants themselves confess?
A: Yes, they confessed; they confessed to the police and to the investigating judge, and at the trial they confessed fully as regards the deed, the murder and the motives by which they were guided.
Q: Had the defendants waived their right for being summoned?
A: Yes, they had waived that privilege, and, therefore, the trial could be started immediately.
Q: According to the English transcript, page 1325, it was not considered that it was necessary in this case to see to it that the matter was dealt with particularly quickly. It further describes how Heller had put a pistol up against the driver; the driver had been able to defend himself; the lovers had run away and had been apprehended by the police.
A: This account omits the fact that Heller shot the driver through the head; and that further more, when he was being arrested, he fired another shot and shot a police official through the hand. Because of those deeds we placed importance on this case.
Q: The witness Ferber maintains that senior public prosecutor Denzler heard in the courtroom from Streicher that Hitler happened to be in Nurnberg; that Streicher and Denzler in the late afternoon had told Hitler about this case -- English transcript page 1624.
Hitler is supposed to have asked for a speedy dealing with the matter, when the Ministry of Justice wanted to postpone dealing with that matter when we found that it was an unusual case, Hitler ordered that this trial should be dealt with more speedily. That affected only the death sentence; is that true?
A: The answer which I would have to give here is an answer which I have already given in reply to a question by the President at the session last Thursday, and I believe, therefore, that I can omit repeating myself.
Q: Was this in any way an unusual legal question?
A: This certainly was not an unusual legal question. The law had been in force for several months. Originally, in promulgating that law one had thought of obstacles being placed in the roads; roadblocks put up, or one had thought of a ditch being dug in the autobahn; or any obstacles being put in the way of motor traffic. It was those more crude cases that the law was to deal with. Naturally, this was not a crude case, but in view of the purpose of the law, this case quite clearly came under this law, for a motor trap in our view has been set up, with the intent of robbery and assault thus, a typical danger for a motor car is exploited; such typical danger in the way of a motor car, or a motor vehicle exists, when the passenger, who may be unknown to the driver, sits behind the driver; and that is what happened in this case. The exploitation of this danger, which was a danger, typical of a danger to a motor driver, imparts to this case the character of an offense against the motor trap law; and that is so in particular in this case when for that purpose the victim is being lured into a lonely spot, and that is what happened in this case.
Q: Concerning the following questions you can be brief. Ferber calls it peculiar that in a case as the SchmidtFahsel case in 1937 Gauleiter Streicher was asked to attend the session in person. During some intervals the audience had ample opportunity to see what extent Streicher had taken a personal interest in the proceedings. Who invited Streicher?
A: What is of importance is that I did not invite him, for at the time when the Schmidt-Fahsel case was tried, I didn't even know him personally. In the Heller case Streicher's appearance was due to the general circumstances, caused by the general sensation which the Heller-Muendel case had caused among the population. Here, too, I had nothing whatsoever to do with Streicher's appearance.
Q: Before the trial did Streicher talk to you about setting a date for the trial and the carrying out of the proceedings?
A: Not a single word.
Q: According to Exhibit 233, the witness Dr. Kunz said that the death sentence could not be carried out on a pregnant woman. That Rothaug influenced the public prosecutor to the effect that he should suppress that fact. In this case it was particularly clear that Gauleiter Striecher had influenced the presiding judge as he had done in numerous other cases. Streicher demanded the death sentence under all circumstances, and came to see me personally in order to prevent me from stating that fact and, in order to do away with my misgivings he suggested that before she was executed an abortion should be performed on the girl. When did you hear for the first time that the Muendel girl was pregnant?
A: At the trial, when I asked the Muendel girl whether she was pregnant and she said yes she was.
Q: Did you, before the trial, have a conversation with Streicher on this particular case?
A: As I have already stressed here, I did not exchange one single syllable with Streicher before the trial.
Q: Did Streicher ever approach you through other people in order to influence the conduct of a trial?
A: Not in a single case.
Q: How do you explain the testimony by Kunz according to which not only in this but also in other penal cases you were under the influence of Streicher?
A: I have an explanation, but I would like to keep silent about that explanation; I want to mention facts here. Kunz doesn't know my situation outside, my outside circumstances outside the office; he doesn't know with whom I had social contacts, nor where I went for my social contacts; nor does he know who were the people with whom I discussed things; he didn't have the slightest insight into my circumstances. I saw him almost exclusively only at sessions, and only during those sessions, and, therefore, it is incomprehensible to me how a man who after all knows the customs in the courts allows or permits himself to give an account here which makes it look as if his testimony were based upon his own observations. In fact, all he has testified to here is the opinion and the statements made by others.
Q Did you talk to Kunz about the pregnancy?
A I certainly didn't talk to Kunz before the trial, but I admit that there is a possibility, without ever having recollected it, simply from a practical point of view it was possible, that Kunz and I met somehow or other and that I advised him to discuss the fact of the pregnancy at length during the session, and this for the reason that question had no importance whatsoever for the judgment and could only become important in connection with the question of executing the sentence, and that was a question which did not interest the court. I admit that possibility because I would have considered it very reasonable if I had such a discussion with Kunz, because I was of the opinion that one should not upset the population any further than had already happened in this case anyway.
Q Dr. Kunz asserts -
A Perhaps I may point out that I could not have even made those remarks to Kunz in the way of a request, but that as the presiding judge of the court, according to the code of procedure, I had not only the right but the duty to limit witnesses and experts to those points which mattered.
Q Dr. Kunz in the cross examination, English transcript page 3584, maintains that question of pregnancy was still fresh in his memory because in that case one could simply observe the Gauleiter directing the whole of that trial. You have already pointed out that you spoke to Streicher neither before nor during the trial. What was the situation?
A I recall it very well. Together with my associates I entered the courtroom; we sat down; shortly after Streicher appeared; he listened; then there was a fairly long recess; the session was continued, and approximately at five o'clock it closed with the judgment being passed. Streicher never said anything, nor did he pass messages; nor, did I see him after the trial, but, as I have already testified, it was only at night shortly before 12 o'clock, and may I also point out this, and this is a point which the witness Kunz overlooked.
There had been a full confession in this case, both as concerns the way the offense was committed, and also as concerns the motives. There was a law which made the death sentence mandatory, and I would ask you to consider what sort of guidance there could have been in a case like that?
Q Dr. Kunz in his cross examination describes the facts of the case as follows, English transcript page 3587. "I believe I spoke to Rothaug in the courthouse on the way to the courtroom and he told me it doesn't concern us; that will follow later when it comes to the execution of the sentence; we are only concerned with the passing of judgment and from that point of view it is without, any significance." In reply to the question under cross examination whether you did not act in concert with Streicher, there is a reply "I can not answer; I can not answer that question. At any rate, Streicher was informed about the problem, for Streicher came into the court before the judges and tried to exert influence on me." What are your comments on that account?
A That account differs considerably from the testimony the witness gave in his affidavit. He now believes that things happened in a different way. What would have interested me is where did it happen? But he describes that in a way that is incomprehensible -
THE PRESIDENT: I think you are extending your answer beyond the proper limits. You testify as to what the facts were and the Tribunal will determine what inconsistencies there may have been in the testimony of some one else. Limit yourself to what you know yourself.
A Concerning the events which occurred between Streicher and Kunz, I know nothing.
Q In Exhibit 232 mention is made of Streicher's investigations of a psychological and anthropological nature in the pridon. Do you know anything about that?
A I heard about that for the first time in this proceeding here.
Q Under cross examination, English transcript page 3587, Kunz maintains that in the Heller-Muendel case he knew that for certain. What do you know of that case in that respect?
A Nothing.
Q Did Streicher need permission from you before he could visit a prison. In that connection Kunz mentions ill treatment of a former high party member in prison. Did you hear anything about that?
A In answer to the first question, I issued the permits if a relative wanted to visit a prisoner who was being held before trial, for which I was competent. Naturally Julius Streicher, the party dignitary and Gauleiter, naturally didn't have to come and ask me for such a permit if he wanted to visit a prison. He approached the agency which was competent, and they were exclusively the agencies of the administration of justice which I, as a judge, had nothing to do with. As concerns your second question, the account which Kunz has given is false again. By accident I know that occurrence from a conversation with police president Martin who was well informed on the matter; that party member was not in a courthouse prison, but he was in the police prison of the Police Praesidium here in Nurnberg, and it is there that Streicher was supposed to have illtreated him, and I personally don't doubt it.
Q Dr. Kunz concludes his statement on this case, Exhibit 233, by saying "The ties between Rothaug and Streicher are particularly obvious from an event which I will now describe. After a trial, which lasted till late at night and which ended in a death sentence being pronounced on the defendant, Rothaug and Streicher, the same night, went to Munich, and, after a drinking bout, they attended the execution of the defendant who had in the meantime also been moved there." Did Kunz attend the trial?
A Yes.
Q Was he able to find out when the trial finished?
A Yes, with his own eyes.
Q When did it end?
AAbout five o'clock in the afternoon.
Q It didn't last far into the night?
A No, certainly not. After the trial the convicted persons were taken to Munchen-Stadelheim by fast train. We had gotten ready for the trip. About an hour later we went to Munich by car; that takes about five hours.
Q What car did you go in?
A The car of the administration of justice.
THE PRESIDENT: We are not concerned, what car he went in, let's get down to essential matters. What kind of car a person went in is not important in this case. Please limit yourself to matters of some importance.
Q Was Streicher in the car, and who else was?
A That is why I was asked the question; the question has been asked whether I went along with Streicher; it was a car driven by a policeman. In the car there was Denzler, the senior public prosecutor and his expert, and I, myself, and two associate judges. There was nobody else in the car.
Q Was there a drinking bout before the execution?
A No, we went straight to the Muenchen Stradelheim, prison from Nuernberg. For us, the Court, it was purely an official matter. According to official regulations, we had to go to the place of the execution, and that is why we went there.
THE PRESIDENT: May I ask you a question?
THE WITNESS: Yes.
THE PRESIDENT: Did you attend all of the executions which were ordered by the court on which you sat?
THE WITNESS: We had passed the death sentence and the Ministry of Justice ordered the execution. Yes, we attended the execution until the end, yes, Your Honor.
THE PRESIDENT: You did not answer my question. Did you attend all of the executions in cases which were ordered by the Court on which you sat?
THE WITNESS: That was the only case were I attended the execution itself. In all other cases I only stayed at the place of execution. In this case we went to the prison and not, as is usually the custom, to the hotel, because it was late and the matter was to be dealt with quickly.
THE PRESIDENT: Thank you.
BY DR. KOESSL:
Q Can you give us any reasons as to how Kunz arrived at his description, which differs from yours?
THE PRESIDENT: I think you may limit yourself to your own description. The witness can tell the facts as he knows them; he need not tell what somebody else thought.
BY DR. KOESSL:
Q Have you got any positive reasons to go by?