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.
Q. What legal recourse was available to the defense counsel after the trial had been concluded before the Special Court?
A. It was impossible for him to apply legal remedies; he could ask for a retrial, which was especially important in connection with paragraph 26 of the Competency Decree. The defense counsel could approach the court directly oy that legal remedy, in contrast to the nullity plea which ho could only suggest and which could only be made to the Court by the Chief Reich prosecutor.
Q. Who had to make the decision?
A. The decision for retrial was made by the Penal Chamber.
Q. Was there any possibility of appeal if that motion was denied?
A. Yes.
Q. Who had to make the decision about that appeal?
A. The Senate of the District Court of Appeals.
Q. That was the regular procedure?
A. Yes; that only applied to ordinary courts.
Q. Who had to make the decision when the motion was granted?
A. In the retrial the decision had to be made by the Penal Chamber which would have been competent for the case had there not been any Special Court. The following example will illustrate that: There is a sentence by a Special Court; a decision about the question as to whether a motion for the reopening of the trial should be granted, was made by the Penal Chamber at the locality of the Special Court, that is to say, Nurnberg. If that Penal Chamber granted that motion, the trial would be reopened, for instance, in Amber, by the Penal Chamber because the offense had been committed in Amberg.
Q. What recourse existed against the second decision?
A. Normal legal remedies of an ordinary procedure, for instance, review.
Q. How long did that condition exist?
A. I believe until the end of January 1943.
Q. What legal guarantees were still in existence after these conditions changed?
A. Reopening of a trial under the normal prerequisites of the Code of procedure was extended so that it almost took the place of an appeal, and it had the advantage that there was no time limit set for it.
Q. What other possibilities did the defense counsel have?
A. As I have already mentioned, in addition to the possibility of the reopening of a trial, there was a possibility to file nullity pleas through the Chief Reich Prosecutor
Q. And who had to decide-- We can skip that.
What possibilities were there for other offices or other agencies which had anything to do with the sentence?
A. They had the same possibilities as the defense counsel himself, and also in favor of the defendant.
Q. And what were the possibilities for the defendant?
A. The same as for the defense counsel.
Q. And that was all outside of the clemency procedure?
A. They are all legal remedies which had nothing whatsoever to do with clemency procedure. If they are used or applied, it is not a question of mercy, but a question of law.
THE PRESIDENT: May I ask you a question? Do you recol lect at the moment whether there was any provision in Law Against Poles and Jews which specially limited the right to apply for a new trial or for a retrial?
THE WITNESS: As long as I was acting as a judge and knew conditions very well, a provision of that kind didn't exist. The same legal remedies could be applied in favor of Poles and Jews as in the case of anybody else.
BY DR. KOESSL:
Q. Will you please give us a brief outline of the basic principles of criminal procedure?
THE PRESIDENT: Do you want to do that?
THE WITNESS: I would like to do it.
THE PRESIDENT: Counsel said "brief".
THE WITNESS: The basic principles are the "offizial prinzip," in contrast to the so-called "disposition prinzip". The first demands prosecution and punisnment of all criminal acts in the public interest. In this connection one speaks of the principle of official prosecution, mandatory prosecution, prosecution by the state and by functionaries of the state officially. The legality.............................. principle requires the official functionaries, ipso lege, to make investigations and file an indictment.
Then there is the principle of immutability, that is to say, that judges, prosecutors, and defense counsel cannot, by settlement, establish the extent of punishment. The trial itself is governed by the so-called maxim of investigations. That is to say, in the main trial the judge had to evaluate the entire material. He is in charge of the trial and he has to search for the truth with all the means at his disposal, without being bound by motions of the parties, under the principle of substantial truth. As to the basis for the decision by the penal judge, the facts which have to be established by the court have to be in accordance with the actual true facts as that is humanly possible.
In order to achieve this, the principle of hearings of both parties is applied.
THE PRESIDENT: We are familiar with these principles; you don't need to tell us anymore about them.
BY DR. K0ESSL:
Q. Then I only want to put to you, witness, that a short time ago the prosecutor here asked the witness Zimmermann why Rothaug had not done anything after the occurrences in November 1938, that is, why he did not interfere since he was competent as a judge for political cases.
A. I was not competent to anything about that.
Q. That was your basic attitude in your activity as a judge in connection with the investigation of facts, evaluation of facts, and principles of law?
THE PRESIDENT: You had to investigate the facts, based on the evidence which you heard in court, determine what the truth was, and apply the law. Isn't that the theory on which you were going to answer the question?
THE WITNESS: Yes, Your Honor.
BY DR. KOESSL:
Q. Did you receive any directives or information of a secret nature?
A. None, none whatsoever.
Q. Now we want to deal briefly with a different subject. That was your position and the position of the German judge coward the law?
A. We exclusively had to examine whether the law was promulgated in accordance with the rules. Any other kind of investigation was not in our hands.
We did not have to examine whether a law was in accordance with the Constitution, or whether it was tenable in accordance with the principles of international law, whether it was necessary, whether it served a purpose, or whether its contents were moral or ethical. In all these directions, the German judge not only had no duty to examine, but he did not even have any right to examine, he was prohibited from so doing.
Q. But Germany had international legal obligations. How could they be taken care of if German judges did not have the right to examine questions of international law in connection with the laws they applied?
A. Examination based on all these points of view which I mentioned, where the judge did not have the right to make that examination, according to the Constitution, in all political systems which ruled Germany, was reserved for other agencies or offices and they had the responsibility for so doing. The examination of all of these questions was not part of the office of a judge in Germany. In so saying we do not wish to hide behind our office, but we want to say that this duty of examination was not at all part of our office.
Q. Was that specifically a German state of affairs?
A. That was a European-Continental state of affairs.
THE PRESIDENT: The time has arrived for our recess; 15 minutes.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: I think it would be unnecessary to go into the general continental view on the natters which you were discussing. Professor' Jahreis has covered that very adequately and/we are quite familiar with the rules.
DR. KOESSL: Yes, your Honor. I wanted to ask the witness to state his opinion on the passage which the Prosecution has brought up, the passage by the American legal theorist, Hyde.
THE PRESIDENT: He may do that.
BY DR. KOESSL:
Q Witness, the Prosecution introduced the following passage during the examination of the expert, Jahreis, from the work by the American legal theorist, Hyde. "International law as well as the national law of any state is of necessity above every administrative regulation or any law or public decree which is contrary to it. There can be no conflict on the same level.
The exact relationship between the recognized law of international law to a local law which is contrary to this international law is often obscured by events which have taken place before the superior authority of the former has ultimately been reestablished. A local court can, therefore, with a view to the nature of the thing and the limitations of the rights given to it, be obligated to apply its law and even a national court of the highest instance can be obligated to approve such an action.
However, this means only that no local court has the possibility to force the state to apply the law. It does not mean that this manner of behavior should be defended internationally or that judges as such should approve it."
What do you have to say about that, witness?
A The attitude of this American scholar in my opinion is absolutely in accordance with the opinion that is also recognized as correct in Europe. He takes as the obvious premise that in a case of conflict between international law and national law the local courts and the highest national court too, due to the limitations of their rights; could be forced to apply the national law which is contrary to international law.
However, he does not draw any further conclusions from this than the following, that by this national jurisdiction the material for international conflict cannot be removed. This is generally recognized today.
However, he does not speak about the responsibility under international law of the national courts, but he assumes that their position, even in his discussions from the point of view of international law, is a matter of course.
Q You are being charged with the fact that you could have avoided the worst consequences of applying the laws which are regarded as contrary to international law by giving a corresponding opinion and pronouncing more lenient sentences. Please comment on that.
A The prohibition to review the laws from the point of view of their constitutionality, their being in accordance with international law, their morality, et cetera, of course applied absolutely and could be circumvented neither secretly nor indirectly. For even in the latter case the judge avoided his subjugation to the law by defeating the real will of the law. Such considerations he was not permitted in any situation and in no direction, but he had to leave this up to those authorities who, by the constitution, were assigned the responsibility for it.
Q Now, it was discussed that the judge could at least let his discretion rule where the law did not provide an absolute penalty but put at the disposal of the judge a certain scope of penalty. Please comment on that.
A This opinion is that of the layman and misleading. It is contrary to the theory of the amount of sentence according to the German Penal Law. Even if there is a scope provided for the sentence; the German judge is subject to the will of the law. Even here his mental activity may only lie in the recognition, not in his own will. This basic IP August 47-M-ATD-7-3-Goldberg (Int.
Wartenberg) attitude alone, which excludes the judge's own will, refutes the view of the free discretion of the judge in pronouncing the sentence.
Here, too, he cannot deviate from the recognized legal principles. In particular, he cannot make his own policy in regard to the length of the sentence.
JUDGE HARDING: I have a question, please, if the witness is finished. Under the decree, as I understand it, against Roles and Jews, more severe sentences could be imposed upon a Pole or a Jew for certain acts than could be imposed upon a German. Is that not correct?
THE WITNESS: The laws as such were more severe and that led to the fact, perforce, that the sentence was more severe.
JUDGE HARDING: In any other cases which you tried did you ever impose a sentence upon a Pole or a Jew which was more severe than which could be imposed upon a German?
THE WITNESS: We, of course, here also remained within the scope of the law. It would perhaps be clearer if you would give me an example.
JUDGE HARDING: I am asking you for the example. In any of the cases which you tried, did you ever impose a sentence upon a Pole or a Jew under that decree which was more severe than that which could be imposed upon a German for the same acts?
THE WITNESS: No. In all cases, if in the place of the Pole, a German would have committed the crime, the same sentence would have been pronounced. In order to make it clear I want to cite an example, namely, the case of the two Polish women that we spoke about yesterday. If two Germans had committed arson in this armament factory with the same intentions as the Poles, that is, in order to damage the German war potential, then these two Germans would also have been sentenced to death; or another example, which perhaps shows the principle more clearly It was mentioned that Poles were sentenced to death for cruelty to animals.
It is obvious that no Pole in Germany was sentenced from that point of view, but if, for example, by means of glass splinters or other acts of sabotage, he destroyed livestock with the intent to damage the German war potential in order to serve his country, then this could bring about a death penalty.
Let us take the case of a German farmhand who, let us say, was a Communist and who killed a horse with the intent thereby to serve the enemy. No one who knows German jurisdiction of that time will doubt that this German, too, and he in particular, would have been sentenced to death.
JUDGE HARDING: I understand that. However, for example, under the Malicious Acts Law certain punishment was imposed upon Germans for making certain statements. The same statement, if made by a Pole, could be more severely punished. I am asking if, in any of the trials which you held of any Pole, a more severe sentence was imposed upon a Pole under the decree against Poles and Jews than could be imposed upon a German for the same acts.
THE WITNESS: I understand the case. In my court it never happened but there is no doubt that a discriminatory judgment did take place here. This was, however, not the fault of the judge but it was due to the fact that the legal situation basically was different. The judge could not sentence the Pole under the Malicious Acts Law but under the corresponding article of the law against Poles and in that law from the very beginning more severe sentences were provided than were possible under the Malicious Acts Law. I want to say by this that the German legal system here --
JUDGE HARDING: Pardon me. I am not concerned at this time with a discussion of the law, I am trying to establish the fact whether or not in your court the situation in certain cases was such that a more severe sentence was imposed upon a Jew or a Pole for the same acts than could have been imposed upon a German.
THE WITNESS: No. If the action could be judged under the sane law as was the case with a German, then merely because a person was a Pole or Jew no more severe sentence was pronounced. However, I can state my opinion on this question of foreigners in regard to the Malicious Acts Law by saying that in our court in Nurnberg, not only when I was presiding judge, but under Oeschey or Ferber too, basically a different point of view was adopted in malicious Acts cases.