As far as I was concerned that settled the matter, and I assumed that it settled the latter for him too. That he should get so involved in the matter the way he describes it, that was not what I intended to happen, and I didn't notice any of that in his personal contact with me; and I have to emphasize that my personal relations with him outside the office, when we met or when we were together on official trips, were no different from what they were with my other comrades.
Q.- Dorfmueller, on page 3203 of the English transcript, says we had to put up with the laws such as they were promulgated and we had to put up with the laws such as they were promulgated and we had to ap ply them whether we liked it or not. has that the general policy?
THE PRESIDENT: You have answered that question many, many times; you have covered that point.
A.- Yes.
THE PRESIDENT: All right. It is unnecessary for you to answer a question when the Court instructs you that you needn't answer it; it is unnecessary for you thereafter to answer it.
A.- But I understood that I had already answered it.
THE PRESIDENT: Thereafter you answered it again. Go ahead, Q.- Dorfmueller says in the English transcript, page 3205 that he had sleepless nights because he was so furious and so indignant.
That is a question which you didn't answer before.
THE PRESIDENT: I think we don't care to hear about it.
Q.- Concerning the position of the Prosecution, concerning their sphere of duties vis a vis the court, in order to become acquainted with all that, will you tell us something about the general opinion on that by reading to us from Loewe, page 1188, and will you read Footnote 5, please, under the heading "prosecution".A.- Footnote 5, on page 1188, says as far as it concerns us here:
The Prosecution is an independent agency with the court. Consequently in the execution of its duties, it is independent of the court. It comes under the court police jurisdiction, but not under the disciplinary jurisdiction of the court. It is undisputed that in all phases of the proceedings the prosecution has an official position. What is disputed is whether at certain phases of the proceedings the prosecution also has the position of being a party. From the substantive point of view, the prosecution can never be a party, but from the formal point of view the prosecution at the trial occupies the position of a party.
Q.- All right. Would you now please read Footnote L, referring to Article 142 of the Judicature Act, and would you read out please what it says there about the organization of the Prosecution. That question becomes important in the Grasser case.
A.- In Footnote I, referring to Article 142, it says: The organization of the prosecution is similar to that of the ordinary courts, and as in the case of those courts, so in the ca.se of the officials of the prosecution, both factual and local competency applies. Accordingly, the prosecution is split up into a number of independent agencies, approximately in accordance with the number of courts. The independence of the latter, however, is limited insofar as the prosecution to a certain extent forms a uniform organisms, the head of which is the supreme agency of the administration of justice. The view of French law of the unity and indivisibility of the prosecution even though there wore restrictions had been adopted by the majority of the German leader, and their laws, also and again in a restricted way, it was introduced into the Judicature Act. Under "F" it says that in the relations of the prosecution offices in various districts with one another, the point of view of the unity of the prosecution generally does not apply.
Q.- That is the point of view which plays such a great part in the Grasser case. Will you tell us briefly how -
THE PRESIDENT: I think we had better postpone that until tomorrow morning.
Dr. Koessl can you give the Tribunal an estimate as to how much longer you propose, if permitted, to take in the examination of this witness?
DR. KOESSL: May it please the court, I had thought that the clarification of the position of the presiding judge, his work, the conduct of the trial, and everything connected with his task, that all that should be dealt with rather more thoroughly because the defense did now call an expert on German procedure. Therefore, I am compelled to deal with many points rather more extensively, and again and again refer to the law and the commentary.
THE PRESIDENT: Now, could you give me an answer to my question?
DR. KOESSL: I think that it will take approximately two days -may be three days. At any rate these questions are connected with the cases which we will have to discuss afterwards and the explanations which have been given here, will serve in all points the preparation of the cases to be discussed later, and many things, therefore, will be dealt with more quickly afterwards when we come to the individual cases, because the fundamental position has already been discussed in detail beforehand.
THE PRESIDENT: We suggest to you to consolidate your questions so as to relate to the more important matters. We are required to conduct a fair, expeditious trial.
DR. KOESSL: Very well, your Honor.
THE PRESIDENT: We will recess until 9:30 tomorrow morning.
(The Tribunal adjourned until 0930 hours, 19 August, 1947.)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 19 August 1947, 0930-1630, Justice James T. Brand, presiding,
THE MARSHAL: Persons in the courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this honorable Tribunal.
There will be order in the Court.
THU PRESIDENT: Mr. Marshal, will you please ascertain if the defendants are all present?
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of the defendant Engert, who is absent due to illness.
THE PRESIDENT: The defendant Engert is excused; proper notation will be made.
Will Counsel and the witness kindly avail themselves of their earphones so that they may hear the ruling of the Tribunal. The Tribunal has given consideration to the matter of obtaining a expeditious trial, and the Tribunal is unanimously of the opinion that the time of the Tribunal and of the counsel and of all parties concerned has been spent in large measure in the lengthy dealing with matters of relatively unimportant relevancy. Article 6, of Ordinance 7, which controls procedural powers of this Tribunal, provides: The Tribunals may require that they be informed of the nature of any evidence before it is offered so that they may rule upon the relevance thereof.
There has been considerable suggestion and some exhortation to counsel and to the witness to proceed with greater rapidity and greater brevity. Suggestions and exhortations haven't been sufficient to accomplish the results which the Tribunal demands.
We desire insofar as it may be possible to leave the control of the examination of this witness in the hands of his counsel, but we are stating to counsel and to the witness now that unless better progress is made by concentrating your efforts upon the essential matters, and by more brief replies to the questions which are asked, the Tribunal fill consider it at noon today whether or not it should require you in ever instance, or in appropriate instances, to state in advance what you propose to prove before you are permitted to prove it. We will also consider whether to impose a time limit upon your examination.
Now this matter, gentlemen, is one for your consideration. If you waste your time upon long-winded answers and irrelevant questions --and I refer particularly to the almost day long discussions of the loving, not to say friendly relationships between all of the parties who are involved in the Nurnberg entourage -- unless you render those discussions more brief, you will find yourselves without the time which you think you require for more important matters later.
This is the opinion of the Tribunal, unanimously stated, and we are going to effect you to get down to business and discuss your cases; then you fill not read any more quotations from the German Procedural Code; if you shall be of the opinion that it is necessary to present them, present them in writing.
We hope we have made our requirements clear to you. These general matters, I am particularly referring to the relationships between those different parties -- has been over-extended in the testimony and unnecessarily so; and it does not aided the case of the defendant in the slightest degree.
You may proceed under these instructions. The results are e i m your hands
DR. KOESSL: May it please the Tribunal, I will endeavor to heed the exhortations of the Court.
My questions and explanations so far were just as painful to we as they were for the Tribunal, but on account of the charges in the indictment, I thought I was forced to deal with these matters. I hope I will not be misunderstood, but I did not follow my own initiative but only under the force of the charges that were brou; ht up against my client,
THE PRESIDENT: Let me say one thing more to you, Counsel for the prosecution and counsel for every defendant may rest assured that whatever decision this Tribunal makes, it will not be based on trivialities in the evidence. We are concerned with the substantial charges, and the substantial evidence. There may be many trivialities which can be said to be relevant, but which could not possibly be decisive. We are concerned with the important charges and the substantial evidence, and counsel for both sides may rely on that statement.
OSWALD ROTHAUG - Resumed DIRECT EXAMINATION - Continued BY DR. KOESEL: (Attorney for the Defendant Rothaug) I ask now to be permitted to conclude the examination today.
Yesterday I tried to make certain changes in my questions, of certain omissions, but in consideration of the fact that no expert witness for German Penal Procedure has appeared, it is necessary in my opinion that procedure be explained in order to refute the charges which are made against my client. I hope that at latest tomorrow I shall be able to begin the discussion of the individual cases.
THE PRESIDENT: I think you had better begin it before tomorrow, Dr. Koessl. If you have procedural rules, bet them out in written form, arm hand them to the Court.
Q.- Witness, concerning the experts which appeared before your court the charges are in the direction that you had also forced these experts into the political line. What was your relations to the experts?
A.- My relations to the experts and to doctors outside of the office and within my job always were correct and friendly. There were three gentlemen -- Kunz, who appeared here; Baur, who was also a witness here; and a certain Schuhmacker.
Q.- Did you ever have any difficulties with these gentlemen? Any differences of opinion?
A.- Almost there were no difficulties.
Q.- Kunz complains that in his activity as an expert he was limited by you. What can you tell us about that?
A.- That was one individual instance, and it wasn't I who restricted him in any way, but I only told the public prosecutor who dealt with the case that Kunz in his expert opinion went far beyond the duties regarding a purely medial question, and delved into a sphere which was reserved for the judge only, namely, the question of proof. Apparently for that reason, the public prosecutor who approved my opinion had a conference with Kunz. That was an entirely insignificant matter.
Q.- Did you have any conferences with the experts?
A.- It occurred only very infrequently that the necessity had arisen to have a brief conference with the experts. I believe that such conferences with Kunz and Baur and with Kunz and Schuhmacker never took place -- very infrequently with Baur.
Q.- It is asserted that the plan existed to eliminate, to exclude Kunz from working as an expert. What do you know about that?
A.- That is based upon the following. Baur repeatedly complained to me that Kunz in his opinion particularly kept him away from more important cases, because he disliked him, and he asked me that I should request him personally for cases of that kind. But I explained to him that for official reasons, reasons of my official position, I did not want to do that because we couldn't do anything like that, and that was that. I informed my people of that request made by Baur, and also of my decision.
I assume that that rumor is based upon just that; but the intention to exclude Kunz never existed.
Q.- But that was the matter in which you made your request for an expert?
A. I have to emphasize it was necessary only in about one per cent of all cases that I had to request an expert. In 99 per cent of all cases the expert was brought into the case by the public prosecutor who nominated him in the indictment as an expert for the case after he had requested a written opinion from him.
Q. New, the legal position of the expert, according to the prevailing opinion is supposed to be determined. May it please the Tribunal, I ask for permission to complete the explanations given up to new, to continue with these explanations , the Questions to explain the position of the judge in order to be able then to go on and. discuss individual cases.
THE PRESIDENT: What kind -- what do you mean by the position of the judge. We understand that the experts' opinions were only advisory to the Tribunal. What is it you wish to show?
DR KOESSL: Various charges have been raised, according to which Rothaug kept the expert's opinion too limited, too restricted; didn't leave them any latitude, and in a certain way didn't consider them important enough; and similar charges -- all these points I want to elucidate on the basis of the code of Procedure, and then I want to discuss the position of the defense counsel, and deal with individual charges which were raised in that connection.
THE PRESIDENT: Much of that material has already been adequately covered. The Tribunal is certainly well aware of the fact that the testimony and reports of the experts are advisory only, and are not binding upon the Tribunal - I mean upon the special court, or upon any other courts so far as we know. Much of what you suggest is cumulative evidence. You will have to make it brief, and insofar as you rely upon the code of procedure, you may set that forth in an exhibit, in writing. Any specific charge of alleged improper conduct, of course, may be specifically answered.
DR. KOESSEL: Yes, Your Honor.
Q. Witness, would you please give us a brief explanation concerning the position of the experts.
A. The expert is an assistant to the judge; his task is to draw conclusions from facts; he is under the direction of the court; and the judge, according to the law, at any time may restrict him to certain points.
THE PRESIDENT: That is in substance what the Tribunal just started we fully understood in advance.
Q. Among the doctors at the district court, could you select the one you liked?
A. Of course.
Q. Did you do that?
A. One stuck to the rule which had become routine.
Q. What was the rule?
A. The rule that one wrote to the Doctor at the District Court of Appeal.
Q. You have been charged with having restricted the experts too much in their work. Will you please look at Article 78, and on the basis of the commentary, will you please state -- I shall skip that question. What significance did the written opinions have in the files?
A. The written opinions which were in the file were requested by the prosecution, not by the court. Their only purpose was for the presecution to solve the problem whether the prosecutor wanted to file an indictment or not. From that time on, that is from the moment when the indictment was filed, these expert opinions had only informative value. The expert had to deliver his opinion at the trial personally and orally, based upon the facts which were produced by the trial itself.
Q. Could he read his formal opinion - No his written opinion?
A. The answer to that can be found from what I have just said; of course not.
Q. has the court bound by the expert opinion - the opinion of the expert?
A. No. The court had the right as well as the duty to examine matters independently.
Q. Did you ever deviate from the expert opinion which a doctor had rendered in the main trial?
A. We never deviated from such expert opinions.
Q. What did you do if you were not convinced by an expert opinion?
A. I tried by intensive discussions and clarification of the facts, such as I considered it necessary, to afford the opportunity to the expert to take into consideration in his opinion also those points which I considered necessary. Never, however, did I exert any influence on the expert in order to have him give his opinion just in a certain way. As far as that was concerned, the exroert wa.s absolutely free.
Q. Baur in Exhibit 157 says; Rothaug stated once, experts may say what ever they please, but I make my own decisions. Nevertheless -
THE PRESIDENT: I don't think it is necessary to comment on that -- the duty of the Tribunal to make its own decisions. It is entirely proper for it do do so.
Q. Will you please explain briefly what the routine was in hearing experts in the main trial?
A. That was a procedure which was the same almost in every case. After the facts knowledge of which in my opinion was necessary, for the expert opinion, had been discussed thoroughly and exhaustively, the expert was called; he gave his opinion in free speech. He was not interrupted by me. Only in very rare exceptional cases it was necessary to put a supplementary or explanatory question. Subsequently, every party in the trial had the right to put questions. The swearing in of the expert was waived in all cases.
Q. But it is asserted however that you or the special court did not agree on extenuating circumstances, although the doctor considered the requirements of Paragraph 51, Section 2 to exist.
On what was that based?
A. The expert was always called and only asked about the requirements of the medical Question. Under paragraph 51, Section 2. Whether extenuating circumstances should really be applied, these provisions were to be decided solely by the court as its own responsibility, and it would nave been against the law if in this question one would have afforded any opportunity for influence to any third person.
Q. In Exhibit 157 Baur says: One of the gentlemen told me once, as far as I know it was Rothaug, paragraph 51, Section 2, you don't have to refer to it at all, because that does not play any part in our proceedings, and paragraph 51, Section 1 is also superfluous; such people do not have to be protected by humanitarian considerations.
A. Such a non-sensical opinion was stated neither by me nor by any one of my deputies. Our sentences prove that in practice we did just the contrary.
Q. Kunz says that you considered the expert opinions by doctors only a formal matter and that you had made doctors act as witnesses for the prosecution. Exhibit 233.
THE PRESIDENT: Let me ask you a Question, Dr. Rothaug. As to the expert opinions of the witnesses, did you give them such weight as you deemed them to be entitled to - reserving to yourself the right and the power to make the final decision?
This Tribunal represents 60 or 70 years of experience on the bench itself and we know something about how the expert is employed by a court. You gave it such weight as you thought it was entitled to, didn't you?
A. In all cases where medical experts gave their opinions I considered these opinions correct. The medical result, however, according to German law was not designed to decide the Question whether mitigating facts according to paragraph 51, section 2 should be applied. That question had to be decided by the court only.
THE PRESIDENT: Yes, the answer is very clear to me.
Q. (By Dr. Koessl): Baur says in Exhibit 157: "The court physicians were, by the special courts, more and more pushed away from the purely medical tasks and made organs of the political aims of the special court."
Did you import a political note?
A. No, that was quite impossible.
Q. Baur says also: "In cases against foreigners where I acted as an expert I was told beforehand by Rothaug that no foreigner had a right to mitigating circumstances, as far as lack of intelligence was concerned, since the state of intelligence of foreigners could not be measured by German standards."
In how many cases did you deal with foreigners from the West, in Nurnberg?
A. According to my recollection -- which is almost absolutely correct -- there were two.
Q. What instances were they?
A. In one case it was a case of malicious intent. It concerned, as far as I remember, a Flemish man who had made a certain statement in a plant here, which was in its nature hostile to the state. Ferber mentioned that case. I tried that man without a medical expert because it was not necessary.
Q. Did you have a medical export in the second case?
A. The second case - and the files are still available - concerned a Dutchman who had embezzled packages, Army postal matters. Here again a medical expert was not called because it was not considered necessary. Both cases were sentenced very leniently.
Q. How many cases did you try of foreigners from the East in Nurnberg?
A. In Nurnberg itself there were hardly such cases because the people from the East were quartered in the country. Therefore, here in Nurnberg that question was not so important. Baur, however, was almost without exception called in cases which were tried in Nurnberg itself, - whereas cases outside of Nurnberg were handled by the local medical experts.
Q. Did you express that opinion to Baur, as he asserts?
A. I never talked any such nonsense to Baur. But I know what it is all about. The problem was quite different. He and Schumacher were repeatedly, in their expert opinions, of the view that the lack of intelligence as far as peoples were concerned with schooling of a. law standard, was often just an apparent lack and was not based on psychopathic reasons. That was the quite sober question which was dealt with there.
Q. Witness, Dr. Kunz says in Exhibit 233, referring to the case of a Pole: "In the first case we are concerned with a young Pole who was supposed to be sentenced to death because he had cut off the fingers of a child of his employer. I was charged to examine his state of mind, which revealed nothing pathological, but I set forth in my expert opinion that this could have been a rather harmless incident where a young man, because of a youthful fight while they were cutting branches with sharp knives, had caused these unintentionally injuries.
Rothaug asked through the prosecutor that passage should be removed from my expert opinion because I was asked only about the state of mind, and he also tried to prevent me from making these statements in the trial."
Do you remember a case of a Pole as it is mentioned here?
A. I remember that case quite well.
Q. What was it about?
A. It was not a boy of 16, but a married man; and it was not a harmless case of fighting, but it was so that on the one side there was that married man - on the other, a child of about eight years. There could be no question of any negligence or carelessness but the Pole took that sharp, large knife and hit the child's hand with it. The blow was so strong that half the hand and two fingers were severed. In this case we see from the description given by the witness Kunz himself that he clearly went beyond the field of the medical expert and entered into the field reserved for the judge -- that is to evaluate the proof. That is the case which I mentioned already once today where I pointed out to the prosecutor that such expert opinions were improper.
Q. What was your attitude toward the lawyers of the defense? You are charged with having improperly restricted the defense, or not having afforded it sufficient latitude. What was your attitude to the defense and the lawyers of the defense in general?
A. The Bar in Nurnberg knew me since 1929. I never had any serious difficulties or enmities with any individual lawyer and no disciplinary complaints of any kind. Throughout the sessions, course there were occasional difficulties for reasons of technical failures of individuals; frequently also for reason of incorrect behavior. But it was always the case of single individuals.
Q. Were there any disciplinary complaints?
A. I remember only one case without being able to say whether that complaint was made by me or by the defense counsel.
Q. What was that case? -
A. I don't think that is important.
Q. Did you appoint defense counsel?
A Yes.
Q. In selecting counsel to be appointed by the court did you permit influence by political points of view?
A. No, not in a single case.
Q. Can you give us example for that?
A. I appointed defense counsel, without consideration of whether they were Party members or not. I even appointed them in cases where I was absolutely sure that they were opposed to national socialism.
Q. Could you mention any one of the defense counsel who have been witnesses here to show that you also appointed opponents of the NSDA?
A. It was known throughout the entire building that Drs. Maier, Groher, Kern, Escher, who were heard as witnesses here, were fundamentally opposed to National Socialism.
Q. Didn't you violate any official regulation by appointing such people as defense counsel?
A. As long as they were attorneys and their behavior had been correct, one could not push them aside. That was a matter of course.
Q. Dr. Maier mentioned that you had tried to help him once when he was in political difficulties. What can you tell us about that?
A. I had been asked whether there was any material against Maier in connection with his appearances before the Special Court. I answered that in the negative, and stressed that Maier was correct in every respect but I understood them that apparently something had teen started or was to be started against him. Therefore, as a friend I warned Maier and asked him in case anything happened to let me know about it.
Q. Since I am going to submit an affidavit by lawyer Kern I want to ask you -- Did you have any close relations with lawyer Kern?
A. No.
Q. Did you still continue to appoint Kern defense counsel after he had been arrested by the Gestapo?
A. Yes, I even caused his release.
Q. Can you mention any other attorney whom, in spite of the fact that he was opposed to National Socialism, you appointed defense counsel time and again?
A. I have already said that this was not important to me.
Q. Ferber mentions in the English transcript, on page 1689, that a Justizrat Warmuth, in Munich had said to him, Ferber, "Rothaug in my opinion is a hangman but not a judge." What do you want to say about that?
A. I don't believe that justizrat Warmuth ever made such a statement. Certainly not to Ferber because I think he is much too smart to do that, and -
THE PRESIDENT: It isn't necessary to hear the witness's opinion as to what some other witness told a third witness.
Q. (By Dr. Koessl): Did Ferber ever tell you anything about that matter?
A. No.
Q. Did you ever have any opportunity to do anything for Warmuth?
A. That was similar to the case of Maier.
Q. What was Warmuth's political attitude?
A. I don't know. I could not say.
Q. Mention is made of some matter connected with a lawyer Weber. Weber is said to have visited you, or intended to visit you, and to have said at the door: "He was going to see a deputy of the devil on earth." Were your relations between lawyer Weber and you of such a nature that expression could be interpreted to be the expression of fundamental hostility?
A. Attorney Weber comes from the same area as I do, and we only had personal relations, never official relations. We used to go out together, and I used to make a joke when I was asked for my first name I used to say, "Lucifer". And that is the reason why Weber apparently as a joke, when he met Ferber, made the statement mentioned before referring to me, expecting that Ferber would not misunderstand it because Berber knew of the close relations between Feber and myself. Therefore, that was nothing else but a joke.
Q. Will you briefly outline what your attitude was toward the defense when you were presiding judge of the Special Court?
A. The position of the defense counsel according to the German Code of Penal Procedure is very clearly defined -
THE PRESIDENT: And it has been very clearly expressed to us. You needn't repeat about it.
Q. (By Dr. Koessl): Were there any cases mentioned by witnesses where you had interrupted and stopped the defense counsel?
A. Against such charges, expressed in such generalities, I cannot defend myself because I would have to tell long stories.
THE PRESIDENT: I think the witness is entirely correct in respect to that type of a charge. Further, if it be a confession then the presiding judge would like to confess that he has stopped not one but hundreds of defense counsel on many occasions and will probably do so again. Unless you can make a specific charge these general charges that he stepped the defense counsel don't mean a thing to us because we have done it ourselves and we will do it again. It depends, of course, upon the particular circumstances of a given case, whether it is an arbitrary or illegal transaction or, on the other band, perfectly proper.
Q. (By Dr. Koessl): In Exhibit 332, lawyer Kern says the following: "Motions of evidence on the part of the defense almost in all cases were rejected as irrelevant and the presentation of evidence almost exclusively reduced to the transcripts of police interrogations which were to be found in the files."
What does lawyer Kern mean by saving that?
A. Of course motions for evidence were frequently rejected, but not by me but by the court which alone had to make that decision, because in such cases the evidence would not have served the case. But how can I defend myself against such a charge if I am not told more about it and am not given the example as to what the motion for evidence that was rejected was, - in what concrete case. As for the second point, it is untrue that in any case instead of using witnesses for affidavits we had used transcripts of police investigations in evidence. The sentences and files which have been submitted here repudiate that. Only evidence presented to the court by witnesses and experts were used to form the opinion and to bring about the decision.
Q. What possibilities did defense counsel have during the main trial?
A. During the main trial the defense counsel had the same possibilities as the prosecutor and the defendant. According to our German trial procedure his opportunities were, of course, more restricted than they are here.
The defense counsel did not have the right to put direct questions to the defendant. That right was reserved to the presiding judge. On the other hand, the defense counsel had the right to put questions to each witness and expert witness in the same manner as the prosecutor and the defendant. The defense counsel had the right at an, time -- that is to say, until the actual sentence was pronounced, to make notions for evidence. Of course they had to he in accordance with legal provisions.
In all these rights the presiding judge had to impose limitations and restrictions as, for instance, when a question was not admissible, or a quite impossible motion for evidence was made.