Q.- The witness Dorffmueller further more says due to the influence of your extraordinary forceful personality, you exerted mental influence on the prosecutors even though they, and I quote: "Were not directly subordinate to you; in sessions and at lectures, also on official trips, however, you had publicly and in private propagandized the National Socialist administration of penal law and defended it." Dorffmueller also mentioned a dissemination of a certain political position of power. Please comment about this theory of radiation, and about these charges of political propaganda and influencing of prosecutors.
THE PRESIDENT: This again is one of those generalized charges which can receive a generalized answer only. Make it brief, It is just a general opinion expressed by some witness. -- No specific charge in it.
A.- I merely feel the need to say that I neither have a powerful personality nor an a person who has special mental powers, and in regard to the question that such personalities have corresponding effects in life, that isn't my fault; that is a matter that God has created in the world.
Q.- With that I have concluded the general questionnaire so far, and in the subsequent time I shall speak about individual cases. However, I would like to request to reserve me the right to discuss one or the other group of problems which cannot be discussed sufficiently in the discussion of individual cases -- to be able to go back to it when the occasion arises.
THE PRESIDENT: Dr. Koessl, it has been suggested -- and I think very well suggested -- that the Tribunal here sometimes, owing to mechanical difficulties, has some difficulty in understanding the names of these various defendants. If you will make that very clear, or when in doubt spoil them to us, it will help us to recall the case which has come before.
DR. KOESSL: Yes, Your Honor.
Q.- Witness, I herewith submit to you a file of the special court Nurnberg, in Seiler case. S-e-i-l-e-r. Seiler-Ehrhard case. In exhibit 234 the former prosecutor Kurt Hoffmann writes, and I quote: "It is certain in regard to the Seiler case that the defendant had previous convictions, and because of his frequent robberies had to count upon a severe sentence. However, one has to establish that many of his robberies did not yield him anything important, and that already on account of his youth alone (20 years) he was absolutely able to improve. Rothaug, as usual, made derogatory remarks during the session and stated that persons like the defendant are attacking the fighting soldier from the back, and, therefore, should be exterminated. Seiler was sentenced to death and executed." Fitness, please first five the closer description of the files.
A.- They arc the penal files against Seiler Ehrhardt from Nurnberg because of crimes against Article 2 of the Law Against Public Enemies.
Q.- Now please turn to the passage of the clemency proceedings that is marked and tell me what document you find there and who signed it?
A.- This is a report which the senior public prosecutor, alter the sentence had been pronounced, sent to the general public prosecutor in Nurnberg.
Q.- Who wrote the report, and who signed it?
A.- This report was written by Kurt Hoffmann, and it was signed by Wilhelm Hoffmann.
Q.- Wilhelm Hoffmann, is that the witness about whom Dorffmueller said that he as deputy of the senior public prosecutor, he followed an absolutely lenient tendency?
A.- Yes, that is Wilhelm Hoffmann who was examined here as a witness.
Q.- And the report was written by the affiant in Exhibit 234?
A.- Yes, Kurt Hoffmann.
Q.- In the Seiler case, the file of which you have before you, is the same twenty-year old robber whom Kurt Hoffmann mentioned in Exhibit 234?
A.- Yes, that is the robber.
Q.- From what can you see that? Please look at the first sentence of the clemency report.
A.- Yes, it is single assistant, Ehrhard Seiler, from Nurnberg, born 24 April, 1921. The report was written in 1942, so that Seiler is twenty years old.
Q.- Now please read what the affiant of Exhibit 234 said on page 2 of the clemency report, regarding the total value of the booty stolen by the defendant and the damages he caused.
A.- He says the total value of the property that he has stolen is more than one thousand marks; beyond that the condemned person damaged a considerable amount of material because in order to achieve his aim he utilized the most varied tools and thereby damaged doors, windows, desks and other furniture; and he damaged it seriously. In 12 cases he exploited the black out.
Q.- In Exhibit 234 Hoffmann says that Seiler alone because of his youth absolutely was able to improve. What does the same Hoffmann say in his clemency report? Please read the third passage -- the last paragraph.
A.- The large number of offenses of the condemned person, especially in the case which we have before us here, his repeatedly reoccurring criminal inclinations through unscrupulous advances to obtain foreign property, to make a living in that manner, the thoughtless manner of the methods he applied, and in particular, the repeated exploitation of the black out, show that the condemned person is a public enemy and war criminal, and that prison terms can no longer deter him from his criminal inclinations.
Moreover, it would not be tenable toward a criminal -
Q.- Just a moment. Witness, in Exhibit 234, you are further more being charged with having made the statement that persons like the defendant are attacking the fighting soldier from the back; and, therefore, have to be exterminated. What does the witness say in the clemency report in regard to that point?
A.- He says in the clemency report that moreover it would not be tenable toward a criminal who attacks from the back the community of the people who are fighting the war and exploits war time measures for his criminal acts, while the other men of the same age are giving their best efforts at the front. Therefore, it would be untenable to lot leniency prevail. I, therefore, as for the execution of the penalty that has been pronounced.
THE PRESIDENT: It is so near to our closing time that we will not start a new case. We will recess until 1:30 this afternoon.
(A recess was taken until 1330 hours, 19 August 1947.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 19 August, 1947.)
OSWALD ROTHAUG - Resumed DIRECT EXAMINATION - Continued
DR. KOESSL: May I continue?
THE PRESIDENT: Proceed.
BY DR. KOESSL (Attorney for the Defendant Rothaug) Q.- hat was the point of view of the general public prosecutor in the case Seiler concerning the clemency question?
A.- That point of view can be seen from the letter by the General public prosecutor of the 6th January, 1941, to the Reich Minister of Justice.
Q.- May I point out to you, witness, that it is of the 6th of January, 1942; apparently there is a misprint in the file.
A.- Yes, that must be a mistake. "The point of view of the general public prosecutor is the following: The legal requirements for the death sentence were justified according to the sentence by the special court beyond any doubt. There is no point of view which could be taken into account in favor of the defendant in deciding the mercy question. Therefore, I am in favor of the execution of the death sentence.
Q.- Who signed that report from the general public prosecutor?
A.- It says here Dr. Engert, deputy.
Q.- Is that the witness, Dr. Engert, who in Exhibit 156 said that you were mainly responsible for the bad reputation of the special court Nurnberg?
A.- That is possible.
Q.- Were you ever concerned with the question as to what point of view the prosecution had concerning the mercy question?
A.- Not in a single case. Their point of view to the clemency question was expressed only within the sphere of the prosecution itself.
Those were internal matters which were not accessible to the court.
Q.- What material was submitted to the Reich Minister of Justice when a case was submitted for the clemency decision. Will you please tell us from the file which you have before you?
A.- The cover of the criminal files, that is the court files, and the cover of the file concerning the clemency appeal show the same file number of the Ministry of Justice -- ZU III, G-23 72-42; and from that one can see that together with the clemency plea all the files concerning the case, including the court files, were submitted to the Reich Ministry of Justice for examination and evaluation.
Q.- What possibility did that afford?
A.- That afforded the possibility to examine the sentences in every direction, particularly in consideration of the facts established by the trial; the conclusions, as a consequence of the facts, the legal maxims and principles that had been applied, reasons why they had been applied, also reasons which were decisive for the final decision concerning the sentences. The police files which were contained in the court files made it possible to find out to what extent the facts revealed throughout the main trial may have deviated from the result of the previous investigations.
Q.- I want you to look at a different special court file now. Will you please give us the designation of that case; that is the case, the files of which I just gave you.
A.- These arc the files concerning the penal case against Christian Ketterer for fraud -- repeated fraud and other offenses.
JUDGE HARDING: What is the exhibit number.
DR. KOESSL: I will explain that right away. The case mentioned in Exhibit 154, in the affidavit submitted by the witness, Markl -- m-a-r-k-l.
Q.- What is the file number?
A.- SG-230-42.
Q.- About that case Ketterer, the witness Markl says in his affidavit, Exhibit 154, the following: "The case Ketterer was the case of a man with previous convictions, who for embezzlement of forty reichsmarks and for falsification of a document had been indicted. His last act was the falsification of his mother's signature of a letter which could have advanced him money, but it was without any success. If one assumes that the defendant had been previously convicted and sentenced to penitentiary, that therefore he had to be sentenced more severely, then if for no other reason than the one reason that the value of the object was very low, it was not advisable to pronounce the heaviest penalty. The Ministry in this case was of the opinion if Ketterer should not be found a public enemy, according to paragraph 4, that the death sentence should not be demanded. That instruction was not passed on to me, but Rothaug made me understand that he would sentence Ketterer to death even if I would not demand the death sentence. Ketterer was executed." Witness, will you please show us first what the point of view of a prosecutor was who had experiences with criminal cases in general, but had nothing to do with penal cases before the special court?
A.- That case at first did not come before the prosecution for the special court, but came up with the general prosecution which dealt with so-called general criminal cases. On the 6th of March, 1942, the prosecutor who dealt with the case submitted these files to the prosecutor at the special court, with the request that it be examined and whether an application of Paragraph 1 of the law designed to modify the Reich Legal code an indictment dated 4 September 1941, was to be filed before the special court. Then, there is an exhaustive justification for that motion. The law which is referred to here required the death sentence -- provided the death sentence. The question of the death sentence, therefore, before these files ever reached us, was already stipulated -- was already decided in some way.
Q.- What was the evaluation on the part of the prosecution with the special court of the person and acts of Ketterer?
A.- That can be seen from the indictment of 16 Hay, 1942, which was filed with the special court. There, among other points, the defendant is classified as a habitual dangerous criminal; and a man who committed repeated frauds. Among other things his offense is designated as one falling under paragraph 1, and under Sections 1 and 10, Article 1 and 10 of the law for the modification of the Reich Penal Code.
Q.- This paragraph 1 of the law of 4 September 1942, what did that say?
A.- It provides for the death sentence -- the mandatory death sentence as I have already explained.
Q.- Did the prosecutor of the general prosecution have the Ketterer files before the main trial? bill you please look at the office files.
A. Yes, there is a letter of the 26th of May 1942 to the senior senior public prosecutor in which the general public prosecutor request that the files be submitted to him.
Q. Who signed that letter?
A. Dr. Krueb.
Q. What matters did Dr. Krueb handle in the office of the general public prosecutor?
A. As far as I know general criminal cases without any political end.
Q. Is that the same Dr. Krueb as the one who submitted affidavit Exhibit 179?
A. Yes.
Q. Will you please read. the statement which is to be found on the back of page 5 of the office files?
A. Here I find a notation which reads as follows: "First public prosecutor, senior public prosecutor Dr. Krueb was informed that the Special Court does not intend to pronounce the death sentence. He agreed that in this case the demand for punishment as intended should not be made."
Q. Who made that notation?
A. Public prosecutor Markl, who also has been heard here as a witness.
Q. What instruction, therefore, was given by Dr. Krueb concerning demand for penalty in the case Ketterer?
A. First instruction was given to demand the death sentence that I was asked what our position was in this case. I voiced misgivings. Krueb was informed about that and he modified his instruction and left the decision to the main trial.
Q. Can you find anything in the file to show how it came about that Ketterer, in spite of this point of view on your part and on the part of the prosecution, was sentenced to death?
A. The files do not show anything in answer to that question. Apparently the impression which was gained in the main trial of the offender justified the original point of view. That is to say, the opinion which existed before the time when I intervened in the direction of mitigation.
Q. Who were your associate judges in the main trial against Ketterer?
A. Dr. Ferber and Groben. Markl was the prosecutor.
Q. That takes care of the case Ketterer. We want to speak now about the case Gaishauser, which the witness Ferber has mentioned on page 1336 and following pages in the English transcript. The cross examination is to be found on pages 1699 to 1705 of the English transcript. I present to you the files on the case Gaishauser.
THE PRESIDENT: How is that name spelled, please.
DR. KOESSL: Gaishauser, spelled G-a-i-s-h-a-u-s-e-r.
Q. (By Dr. Doessl) Will you please ascertain, witness, what the number of that file is?
A. SG-175-39.
Q. Witness, pleas ascertain first what the offenses were with which the defendant Gaishauser was charged. You will find a brief description in the indictment. That is page 47 of the file.
A. Gaishauser was charged with having committed a crime under paragraph I, Article I, of the law to safeguard legal guarantees of the 13th of October 1933, coinciding with the crime of attempted murder according to paragraph II Article II. And then furthermore it was assumed that he had committed a crime according to paragraph 1 according to the decree concerning violent criminals, and 9 crimes coinciding with crimes of Sexual offenses against children. First, under figure 1 it is stated that the defendant repeatedly had committed indecent acts with a girl of eight years. Among others he also had tried to commit sexual intercourse. That happened eight times. A second offense - it is described how the defendant when he was arrested for these cases of attempted rape tried to attack with a knife the police official who wanted to arrest him, and that he actually injured him seriously with the knife.
Q. When did that offense occur - the one you last mentioned, and when was Gaishauser arrested?
A. It occurred on the 1st of October 1939. His arrest occurred on the same day, shortly before that.
Q. Could you tell us from the file whether it was in the morning, and where the defendant was arrested? You can find that on page 1 of the file as well as in the notes.
A. The arresting official stated: "At nine-thirty I went there. The procedure took some time."
Q. Where did he go?
A. It may be that these things occurred late in the morning.
Q. Was Gaishauser arrested in his apartment, or outside of it?
A. He was arrested in his apartment.
Q. I would like to point out that also as far as this introductory statement is concerned the witness Ferber gives an inaccurate description. In the English transcript on page 1336 it says: It is the case where a very old man was arrested late in the afternoon on the was from his home to the place of arrest."
You have already explained, witness, what legal evaluation was given to the offenses committed by Gaishauser in the indictment. Who wrote the indictment in the case of Gaishauser?
A. The indictment was composed by Ferber, signed by Dr. Oeck.
DR. KOESSL: At this point, I should like to point out to the Tribunal that the transcript, English pages 1336 and 1337, mentions only the law to guarantee law and order and attempted manslaughter, whereas he doesn't say anything about the decree concerning violent criminals which provides the death sentence as a mandatory punishment.
Now, I want to come to the most decisive statement by Ferber and I should like to read the corresponding passage of the transcript. The witness Ferber says, and I quote -- English transcript, page 1337: "In the case of Gaishauser the following was most significant that Gaishauser was a man of considerable age. He may have been near 70, and that on that day when he committed that offense had consumed alcohol in a rather unusual quantity. The export physician who had examined Gaishauser according to the regulations concerning individual responsibility, said that he was fully responsible according to paragraph 51 of the German Penal Code. Therefore, no chance of mitigating circumstances on account of arteria sclerosis nor on account of having consumed alcohol. It was a borderline case because in the session a witness appeared and submitted to the court that Gaishauser had staggered on the way, that in her opinion -- she was the daughter of an inn-keeper -- Gaishauser was definitely under the influence of alcohol. I remember full well that just the examination of that witness by Rothaug was a very significant point in the entire trial because more or less the applicability of the expert opinion given by the official physician Dr. Schumacher depended on this witness. Rothaug shouted at the witness asking whether she thought that she was expert enough to tell the court who was intoxicated, or who was not intoxicated, and what personal standards of experience she meant to apply.
The witness in the course of that interrogation then deviated more and more from the statement she had made continuously in preliminary interrogations with the police so that Rothaug gained, so to say, a victory over that witness-but that at the same time supported the expert opinion rendered by the physician Dr. Schumacher. That is how it come about that the court recognized the full requirements to apply the law to guarantee law and order."
Q (By Dr. Koessl): Witness, will you please ascertain what witness Forber meant, "She was the daughter of a woman who ran an inn."
A It is the witness Meiler who met the defendant and the official of the gendarmerie and saw the defendant stagger, and therefore was called by us to be a witness about her general observations. There is no doubt that only that witness boiler could have been the witness mentioned here because about that subject no other witness, male or female, had been heard.
Q In the verdict, on page 67, you will find that Meiler is the daughter of an inn keeper.
A From the verdict one can see that it was the daughter of an inn-keeper who made those statements.
Q We want to ascertain whether that statement which contributed to the verdict differs from the statement which the witness Meiler had made before the police. Will you please just read the short paragraph in the verdict on the back of page 67.
A Here it is stated as follows: "The witness Meiler also who saw the defendant several minutes before the offense was committed rained the impression that the defendant was intoxicated but that one could not speak of complete intoxication as far as his condition was concerned.
The witness, Meiler, is the daughter of an Innkeeper and stated that from her experience she could tell quite well whether somebody was fully intoxicated. The defendant, to be sure, had staggered over a root, but he had not fallen. That, as far as she was concerned, was the best sign that his intoxication cannot have been too bad.
THE PRESIDENT: I don't see what this has to do with the case. It will take a Philadelphia lawyer to explain how this pertains to the guilt or innocence of the defendant Rothaug.
DR. KOESSL: It has to do with the fact that the witness Forber associated with this witness, Meiler, upon questioning by Rothaug in the main trial, had made entirely different statements than she did before the police official.
THE PRESIDENT: If you consider that important enough to go into at all, then just ask the witness what the facts are, and if he states the facts differently from what the affiants stated then the court will be in the possession of both sides of the argument.
DR. KOESSL: Will you please tell us now, witness, whether the statements by the witness Meiler before the gendarmerie for the local police are in accordance with the statements which you have just mentioned from the main trial?
A. The statements made before the court are in accordance with the statements which the witness made before the local police. Here again her last remark is, "He was under the influence of alcohol, but not so completely that he didn't know what he was doing."
There is no difference between the statements made by the witness before the local police and the statement which she has made before the court.
Q Now, I want to show that the witness Ferber says about the manner in which Rothaug exerted the alleged pressure on the witness Meiler. He says - English transcript page 1338 and 1339, the following: "One can only understand that in the following manner: That he influenced psychologically, he overpowered psychologically that simple roman standing before the court, which had the consequences that she became insecure. I remember that Rothaug, for instance, gut the question to the witness: "When, in your opinion, is anybody so intoxicated that he no longer knows that he is doing?" That woman - I think that girl was hardly more than 20 years old, became insecure in a case like that and begins to-
THE PRESIDENT: I have to interrupt you and state that we are not concerned at all whether the defendant Rothaug made that remark to that question to the witness, or whether he did not. It makes no difference to us. We are not concerned with that.
DR. KOESSL: May I say briefly why this is so important?
THE PRESIDENT: No, we are not going to hear you on it. We are not concerned at all whether he said it or didn't say it.
DR. KOESSL: Mr. President, what I have just read was not a statement made by Rothaug but the statement made by the witness Ferber.
THE PRESIDENT: Yes, I understand. Go on with the next question, please.
We've ruled on it.
BY DR. KOESSL:
Q Witness, tell us the age, environment and the place where the witness Meiler lived - from the files.
A The witness Meiler was not a girl of 20, but a woman of 34.
THE PRESIDENT: We are not going to hear that testimony. We do not want to know about her age or environment, and we are not going to convict the defendant with anything relative to that matter.
BY DR. KOESSL:
Q Ascertain, please, witness, when and by whom the expert medical opinion was requested. You rill find that request on page 17 of the files.
A The expert opinion was not requested by the court but by the prosecutor.
Q Do you find the passage?
A Yes.
Q By whom was that expert opinion requested?
A By the prosecutor.
Q When the District Court doctor made his expert opinion did he have that statement already, the statement of the witness?
A Yes.
Q Was that written expert opinion read in the main trial?
A No.
Q Why wasn't it read?
A Because according to the law of procedure the medical opinion had to be pronounced in the main trial orally.
Q Will you give us a general description of that export opinion which you find in the files?
A It is along the same line as expert opinions were given at that time, generally.
Q Is the evaluation of the defendant on that basis based on the racial point of view?
Court 111, Case 111 (Uiberall) 16-1-GW-A-19 Aug 47-Daniels
A He is considered an irascible man, an alcoholic, a liar, a brutal character, inconsiderate, and a psychopathic individual. Then it is stated that he is neither feeble minded nor mentally ill, and that his drinking was not to such an extent that it could influence him to commit the offense.
I cannot find that any sociological or racial point of view are mentioned in that expert opinion.
Q Who was the defense counsel for Gaishauser?
A Kroher; attorney Kroher had been appointed defense counsel.
Q By whom was he appointed?
A By me.
Q As far as the question of responsibility of defendant Gaishauser is concerned, did defense counsel Kroher do anything bout that? Please look at page 55 of the files.
A Yes; there is a motion of 15 December 1939, saying the following:
"I request that the defendant be transferred to the mental institution at erlangen for examination of his mental state of health."
Q I want to emphasize what we discussed yesterday concerning motions made by defense counsel and the way they were handled, as well as the statements by Ferber, in the English transcript at pages 1704 and 1705, where he mentions the motion made by defense counsel Kroher.
Now, after having explained the legal point of view yesterday, we want to discuss the facts today.
Did Kroher, as Ferber asserts, object to the sociological and racial points of view mentioned in the expert opinion?
A There is not a word about that in the reasons given for his motion.
Q What was the opinion of the doctor of the District Court concerning the motion by Kroher?
Court 111, Case 111 (Uiberall) 16-2-GW-A-19 Aug 47-Daniels
A He did not make the request to have the defendant transferred to a mental institution.
Q Ferber assorted that you had rejected that motion, giving as a reason that it would be in erestion to find out those sociological and racial points of view. Does that decision on your part, in rejecting the motion by Kroher, contain any reasons of that kind?
A In that decision it is explained that the motion was rejected because the medical expert had not made the motion to have the defendant transferred.
Q Will you please ascertain now whether attorney Kroher attended the main trial personally?
A Yes, he attended the main trial himself. It is not true that he was represented by somebody else.
Q Who was prosecutor during that session?
A Dr. Ferber.
Q Did Kroher, during the session, repeat his motion? And if so, in what form?
A Droher repeated the motion, which had been rejected before the main trial, during the session, and this time in a somewhat modified form.
Q What was the position of Prosecutor Ferber concerning the motion by Kroher?
A May I supplement the answer I have just given? In a modified form, as I said, by requesting that an expert opinion be given by a psychiatrist and neurologist.
Q And what was the position taken by Prosecutor Ferber?
A Prosecutor Ferber moved that the motion by the defense counsel be rejected, and he referred to the export medical opinion which was available from the official doctor of the District Court.
Q What was the position of the Court concerning the motion by Kroher? 7324 Court 111, Case 111 (Uiberall) 16-3-GW-A-19 Aug 47-Daniels
A The Court also rejected the motion-again, as far as the requested examination to be made in a mental institution was concerned-- for the reason that the medical expert had not made such a request.
Q Will you please read the decision, in order to explain what possibilities the Court afforded to the medical expert?
A The decision reads as follows:
"The request to have mother medical expert called and to have the defendant examined in a mental institution is rejected because the evaluation of the full responsibility of the defendant under criminal law has been fully provided by the medical expert, who has been heard. This medical expert, so far, has not seen any reason to make use of his exclusive right to make this motion according to Paragraph 81 of the Code of Criminal Procedure."
Q Did defense counsel Kroher make any further motions for evidence? I refer to page 60, the back of page 60.
A He moved that a witness Klompfer be heard to comment on relations with Gaishauser's wife.
Q What did the prosecutor do?
A The prosecutor requested that that motion be denied.
Q What was the decision made by the Court?
It rejected the motion to have Klompfer called, because, in evaluating the facts, it would make into consideration that the defendant was jealous of his sub-tenant Klompfer.
Q Is anything to be seen from the transcript of that session which would indicate that the defense was restricted in its activity?
A Nothing can be found about that from the transcript; and the defense counsel was not restricted or limited in any way because he has actually made all sorts of motions, all possible motions, and they were dealt with and decided upon.