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?
A I have pointed out that before the execution not one drop of liquor was consumed. The only man who consumed liquor was Heller, because he had asked for it, it was his last request.
Q In connection with the Heller-Muendel case, did you have any difficulties with the authorities of the Administration of Justice?
A The big conflict in this matter, so far as I know, occured when Hitler had rung up the Ministry of Justice in the matter and had talked to them in a very ungracious manner. I myself had played no part in those events and I was not interested in them. Friction with me occured only when I interrupted the trial at 12 o'clock to go to my home until 2 o'clock. During that interval three messengers were sent after me with the request that I return to the court house immediately and continue the session. The Ministry was demanding that, and the man at the Ministry wasn't leaving the telephone alone for one minute. However, I was not impressed by that, but I returned at 2 o'clock sharp and then continued the trial. Apparently that was held against me.
Q In connection with that, you had an experience as to how the Administration of Justice acted in the cases of such criticism.
A That matter had a very unfortunate result for Westphal, who was a defendant and who is deceased now. He was the man who, in the end, had to hold the baby.
At any rate, from that I learned that I would never again discuss anything over the telephone, because such telephone conversations never give a guarantee that people will stick to what they say over the telephone.
Q According to Ferber's testimony -- English transcript, page 1624 -- the defense counsel appointed by the Court were not able to do their work properly on account of Streicher's presence. That was not important for the judgment, but for the position which the Court took in regard to the clemency plea. What are your comments on that?
A Here again we have an instance of a completely misleading statement with regard to legal situation. Under the German code of penal procedure a trial has only one single purpose, and that is to establish the basis for the judgment; the trial does not aim at decisively preparing a decision on the clemency plea. Consequently never and nowhere has it never been the custom of the defense counsel, at the trial, to give their views on the clemency plea as such, because it was not the Court that was competent for this decision, but, in the final analysis, the leadership of the State, and the Court was only heard as far as its opinion was concerned. I know that the defense counsels made exhaustive statements, but I would like to point out that nothing much could be said in this case since the evidence was completely clear and the legal consequences for the judgment were absolutely certain.
It is interesting to me to hear that the defense counsel are said to have complained that on account of Streicher's presence they were not able to do their work properly, because I have just remembered that Denzler told me at the time that Streicher had gotten quite excited because the defense counsels had not worked hard enough at their job. In truth, what happened was that the statements made by the defense counsels were in an altogether harmonic relationship with the situation such as it was.
Q Was clemency exercised?
A Clemency was exercised on Muendel because she was pregnant. The pregnancy in itself would not have precluded the execution of the sentence after the birth of the child, but, as one came to hear, Hitler is supposed to have described it as an inhuman action if one had kept the woman alive until the birth of her child and had executed her afterwards. No clemency was exercised on Heller.
Q Now a last question. When was that pregnancy discussed for the first time? You have mentioned that once before.
A I believe I have answered that question.
Q We now come to the Durka-Struss case. In that case too you are alleged to have placed restrictions on the defense.
THE PRESIDENT: What was the name of that case?
DR. KOESSL: The Durka and Struss case.
THE PRESIDENT: How do you spell that?
DR. KOESSL: D-U-R-K-A, was the one Polish woman and the name of the other was Struss, -S-T-R-U-S-S.
That case in mentioned in the Kern affidavit, Exhibit 232; in the Kassing affidavit, Exhibit 477; and in the Markl affidavit, Exhibit 154.
Concerning the Kern exhibit, the pages in the English transcript are 3809 through 3811, Heller pages 3934 through 3936. For the Kassing affidavit, the English transcript pages are 3997 through 3999; and in the case of the Markl affidavit the English pages are 3654 through 3668.
BY DR. KOESSL:
Q Well then, in the Durka-Struss case, witness, you are supposed to have placed in admissible restrictions on the defense. Do you remember that case?
A Yes, I do.
Q When did you hear of the case?
A To put it briefly, it was a case of arson committed by the two Polish women at the armament plant. I heard of the case for the first time on a Saturday morning. Public Prosecutor Markl came to my office and told me that a case was about to come on which, according to instructions, would have to be dealt with the very same day; it was a case of sabotage and a full confession had been made; the two female offenders had been apprehended at the place where they had committed the action, and immediately after they had committed it. I then opposed such treatment of a case, and I used a very strong language, for the very reason that it was a Saturday and I wanted to be left at peace. However, Markl told me that he was quite innocent, he had received instructions from up above. Evidently the Ministry of Justice was in a particular hurry about this case because it was feared that the police might intervene. In any case, the matter was to be dealt with by court proceedings.
Markl then told me that he would try to compose the indictment as quickly as possible and to have the indictment and the files reach me as quickly as possible.
Q Did you take any steps?
A. Although I would only have been obliged to take such a step after I had received the indictment and the files, the first step I took, however, was that I contacted two attorneys -- among them attorney Kern---and I told them to come to see me. According to my request they came immediately. I informed each of them about the case, and I then talked to Kern. I remember that very well; it happened at my office. I explained to Kern that I could not change the matter, as the law compelled me, if necessary, to hold the trial on a Sunday. Kern had some mis-givings as to whether he would be able to prepare his defense, and he said that possibly he would have to refuse to take on the defense. I then said to him, "Well then, we will have to do without you." Naturally, that did not mean that we would have been able to do without a defense counsel, for I could not have conducted such a trial without that. He then promised that he would try and get hold of the files himself.
I then contacted the Public Prosecutor and asked him to hand over the files to the defense counsels before I received the files. Therefore, I was of the opinion that both defense counsels would actually get right down to work. At any rate, I did not hear anything further about the defense counsels having been unable to finish their work; neither of the two came and complained to me. But quite apart from that, according to the legal situation, I would not have been permitted to take that to consideration, although one did so in effect because, as the law demanded of me, I had to fix a time for the trial immediately, I had to conduct the proceedings, and in so doing I was not permitted to take into consideration the fact as to whether the defense counsel had sufficient time to prepare his case before the trial.
Q. Why was it that the time limit was so short? "hat has been said is that if you wanted it, it might have been possible to extend it.
A. In all these questions what we are concerned with is not whether the judge wants it or whether the judge doesn't want it, but under our code of procedure we had to find out what the law demanded and we had to act in accordance with the will of the law. Naturally, where that could be done, one gave way.
Q. Please tell us briefly about that case.
A. Naturally, after all these years, I do not remember all the details about the case, but I do remember this.
The two Polish women committed arson in that armament plant. One of them entered the room concerned and threw a burning match into the room, where highly incendiary objects were housed in order to start a fire, while the other woman went into a side corridor where she watched so that the other Polish woman would not be surprised while carrying out her plan. A fire was started, but it was possible to extinguish it. However, the two girls aroused suspicion and were arrested. While they were being arrested one of the women threw a letter, which she had been carrying on her person, down a shaft. Somebody saw that, and the letter was found. That letter revealed beyond any doubt that both women had discussed that plan with each other, and that letter itself would have been sufficient to make certain that both women were offenders in the case.
As to how long before the trial the offense had been committed, that I can't say, but I remember vaguely that a few days intervened.
Q. How did that arrest take place, and when were they arrested?
A. The arrest was made on the spot where the offense was committed.
Q. How ware the women brought to Nurnberg?
A. As they had committed sabotage, it was the Gestapo in Nurnberg which was competent for dealing with the matter. I assume that the two Polish women were moved by the Gestapo to the police prison in Nurnberg, that the Gestapo kept them in custody there, and that it was there that the decisive interrogations were being carried out.
Q. What was their attitude to their offense?
A. They both confessed in full, and they said their motive had been that, as Polish women, they had committed that offense for nationalist reasons and not to do personal harm to anybody.
Q. What was the reason for the Special Court being competent?
A. The competence of the Special Court was based on Article 8-A of the Penal Code of Procedure, according to which the Court is compete for passing judgment where a defendant is under detention by the police.
Q. And how do you think that evidence would have been judged elsewhere?
A. In my opinion this was an altogether clear case of sabotage, which I think --- with all respect that one may have for the offender who acts for nationalist motives -- during a war, would have been punished by the death penalty in every country in the world.
Q. How did the defendants defend themselves at the trial?
A. One of the defendants stuck to her confession and she quite frankly and proudly stated the motives for her offense. In contrast to her, the other defendant suddenly denied everything, but did admit that she had made a confession to the police. I asked her whether the police had exerted compulsion. She said no; and the other Polish woman who stuck to her confession also said that the interrogation had been perfectly correct.
I talked to her emphatically and put it to her that her friend was incriminating her. I asked her whether she had had an argument with her, and what her friend's reason was to incriminate her as well. The only answer she was able to give me was, "My friend has no wish to die by herself," I also asked the Polish woman who had confessed and I put it to her that it was a serious responsibility for her if, unjustly, she incriminated the other girl.
However, she denied that very definitely.
Finally, we had that letter.
I remember that I asked the official of the Gestapo to come to see me, and I questioned him closely in order to make certain that the interrogation at the police had proceeded correctly. He said that only correct methods had been used. He made that statement under oath, and one could believe him. I also questioned the interpreter as to everything the Poles had said. That was the interpreter who translated for the police; he was a man who had nothing to do with the police. He, too, described the events in the same way in which they finally incorporated in the judgment.
As for an adequate clarification of the facts of the case, no criticism can be leveled against it if one wants to be honest.
THE PRESIDENT: May I ask you a question? The witness referred to Paragraph 8-A of the Penal Code. Is that in evidence?
DR. KOESSL: That article is not in evidence. It is a very short article.
THE PRESIDENT: I should like to hear it.
DR. KOESSL: I have it here. Yes, Your Honor.
(Volume submitted to witness)
THE WITNESS: This is the Code of Criminal Procedure, with the most important by-laws and the war procedure regulations. It is a commentary by Otto Schwarz. This is the 12th edition, revised and amended. It was published in 1943. Provision 8-A says:
"The jurisdiction, lies with the court in the area of which the defendant is under detention at the time the indictment is filed on instruction of the authorities."
THE PRESIDENT: That law did not extend --- I should like you to put your earphones on so you can hear me. The law to which you have just referred did not extend the jurisdiction of the Special Court to all crimes or to any crimes except those which were specifically granted to the Special Court, did it?
THE WITNESS: Your Honor. That provision refers only to the so-called local competency; the factual competency results from other provisions. What we are concerned with here is that we were locally competent and not, perhaps, the Special Court at Bayreuth.
THE PRESIDENT: Yes.
BY DR. KOESSL:
Q Witness, how did you try and deal with the fact that suddenly one of the defendants denied that confession?
A I believe I have already told you that.
Q And why did you think she denied?
A That denial can be explained simply for the reason that only at that moment she became conscious how serious her situation was an that the consequences threatened her life and she then probably acted by the law which dominates all creatures in such situations unless they are people of special heroism.
Q Was there any other evidence?
A I have already pointed out that the letter which one of the defendants had thrown away had been found.
Q Did you have any files?
A That question was doubted in some context or other but a mistake had occurred there. We were concerned with the original files and the police, as I assume, had sent those away to the RSHA but copies of those files or, to be more correct, the second original versions, were sent to the prosecution, and apparently in connection with that fact, this case was set going from the higher levels. That is to say, the court and everybody who had anything to do with the case had complete access to all the files.
Q Did one of the defense counsels apply for suspension or make a motion for evidence?
A Such an application by the defense or by the prosecutor I do not recollect at all.
Q In Exhibit 232 Attorney Kern says that at the trial he made a motion to examine those persons as witnesses who had made remarks about the event to the police official. That motion had been rejected. Do you know about that?
A In this case it would have been a motion for evidence at the trial itself as compared with a motion for evidence such as I described this morning, when a motion was made outside the trial.