Q: The Aryanization lasted longer. Did you have any connections with, or any knowledge of it?
A: These events which occurred during the so-called "Crystal Night" became known to me for the first time on the morning when I left the tram car near this Palace of Justice in order to enter the building. There I met a barber who was living near me, and he told me everything that had happened during that night. I myself did not observe anything of these matters, only this matter was talked about a great deal, and from the very beginning I believe it was spoken of in a derogatory way, even in Party circles. It was not understandable that, because of an individual case, vandalism was aroused to that extent. That was the feeling which went into Party circles, and in addition one soon heard that this matter was disapproved altogether and was due to the initiative of Goebbels, I believe. In any case, in general one had the feeling that above, in the higher circles, this whole affair was considered to be very unpleasant. The Aryanization affair followed after that Crystal Night. What the interia was between them I don't recall, but one day, suddenly, it was talked about that in some cellars, rather numerous Jews were herded together, that real estate was being changed there, - sold, and that it was not honest at all. There was talk of beatings, but all those things that went on there -- this could be rumors just as well. Only some time after, I found out that this whole affair had brought strong waves also into the machinery of the Administration of Justice, namely in connection with the entries in Real Estate Register concerning those sales which were concluded in those cellars. At that time the then president of the District Court of Appeals, Doebig himself, gave me a rather careful report - that is, to put it more correctly, he told me about this problem and also about the fact that in Berlin his efforts against this scandal he had not prevailed.
However, I want to emphasize here expressly that what made people especially angry in connection with the Aryanization was the fact that certain circles who, by the way, had not even anything to do with the Nazi Party availed themselves of this opportunity to enrich themselves in a most unscrupulous manner.
THE PRESIDENT: Just a moment, please. I think the prosecutor has something to say.
MR. LAFOLETTE: Your Honor, please, tomorrow afternoon at one-thirty the prosecution will move the severance of the case against the defendant Engert. At that time I would like to introduce some testimony in support of the motion and ask that the Court to hear me at that time and I make mat statement for the reason that I want Dr. Link to be present. I will produce Captain Martin and Dr. Stern and I also would like to have some testimony from the Secretary General's Office.
THE PRESIDENT: Very well, then, that will be the order of procedure.
We will recess until tomorrow morning at nine-thirty.
(The Tribunal recessed until 0930 hours - 20 Aug 47)
Official Transcript of American Military tribunal III in the matter of the United States of America against Josef Aistoetter, et al, defendant, sitting at Nurnberg, Germany, on 20 August 1947, 0930-1630 The Honorable James T. Brand, presiding.
THE MARSHAL: 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.
THE PRESIDENT: Mr. Marshal, will you 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: Let the notation be made; the defendant Engert has been excused.
You may proceed, Dr. Koessl.
DR. KOESSL: Thank you.
OSWALD ROTHAUG - Resumed DIRECT EXAMINATION - Continued BY DR. KOESSL:Q.- Witness, did you hear that during the Aryanization campaign pressure had been exerted on the judges dealing with the real estate registry?
A.- That was discussed, and it was said that the judges did not know as to what attitude they were to adopt.
Q.- As Gau Group Administrator, were you able to assist the judges and the public prosecutors?
A.- I don't know whether I held that position in the Lawyer's league at that time. At any rate, the judges who were immediately affected did not approach me; what I heard I heard by accident in conversations.
I could not have done anything beyond reporting to Denzler, who was the Gauwalter, or the Gau administrator, in those days, and I would have had to leave it to him to take the necessary steps with the competent political agencies. However, that would have been a useless effort, for Denzler probably was much better informed about all those occurrences that I and it is hardly likely that he would have been able to achieve anything with the local Gau leadership. For the rest, the whole of that question had become a question concerning the Administration of Justice.
Q.- However, it has been said that there was a law according to which the judges could have acted, and thus there was nothing that the Administration of Justice could have done.
A.- That is the point of view, in such critical situations which one is want to adopt. Naturally, there were laws for the judges which gave them the legal opportunity to refuse to deal with the transfer of real estate in the registry, a transfer which had come about by extortion. That was not a question at all in this connection, there was no doubt about that. The situation was much more difficult.
The events which had occurred here in Franconia amounted to a partial standstill of the Administration of Justice, and the characteristics of those events were that the judges were no longer able to act in the way in which they should have acted according to the law. The problems that arose from that cramped state of affairs could no longer be solved by the judges, but it had become necessary for the higher authorities -- that is to say, for the leadership of the state -- to take the proper steps.
As I stated here yesterday, I repeatedly discussed the situation with Doebig, and there is no doubt that Doebig had complete insight into the situation and was making serious efforts to bring about the proper steps by the higher authorities.
He too was very upset that he had not succeeded in doing so.
THE PRESIDENT: Your next question, please.
BY DR. KOESSL:
Q.- That is to say, you had no influence on that development?
A.- I did not have the slighest influence on that development, and I was, so to speak, an onlooker, just as everybody else was.
Q.- Did you have anything to do with the effects or the consequences?
A.- One must make a distinction here between the so-called "crystal night", as such, and the aryanization program as such. The destruction which was wreaked on that night was not prosecuted. However, very severe measures were taken against all those persons who had used that night to enrich themselves in some way or other. We ourselves tried such cases and we passed very heavy penitentiary sentences. The Aryanization program as such, however, did not fall within the competency of the Administration of Justice. We merely heard that police and party court proceedings had been undertaken. I do not know the reasons why such cases were not brought before the courts, but I do know that local agencies here -- as, for example, the President of the Police, Martin -- considered all possibilities, as far as possible; for passing on such cases to the courts.
Q.- As a judge were you able, in your official position, to take steps against the events that occurred?
A.- The position of the German judge was such that; according to the principle of the indictment, he could only take steps if the prosecution had filed an indictment with him, that is to say, on his own initiative he could not undertake prosecution or ask anybody else to institute such prosecution. His work always depended upon the prosecution -
THE PRESIDENT (Interposing): You have made that clear. You are just repeating yourself now.
BY DR. KOESSL:
Q.- Did you have any influence on the racial legislation?
A.- The racial legislation was promulgated in 1935. At that time I was an entirely unknown judge in Schweinfurt. I heard that those laws had been passed in the same way in which the man in the street heard of it.
I had nothing to do with it.
Q.- We will now revert to the question from which we started, that is to say, your occupation with the racial problem before 1933. You have said that you occupied yourself with that question since 1928 and that in connection with philosophical, psychological, and historical research. You have also said that in connection with the Jewish problem. What do you think is the most dangerous element in the racial problem?
A.- The racial problem has only one dangerous element: The consciousness of race produces a racial pride, and from that to racial arrogance is only one short step.
THE PRESIDENT: That is purely a philosophical discussion, it doesn't bear on this case at ail and we don't want to hear any more of it.
BY DR. KOESSL:
Q.- When you had penetrated into the racial problem in 1938, did you adopt the point of view of the "Master Race"?
A.- You shouldn't have said 1938, you should have said 1928, I did not take up that point of view, for my serious research into these problems showed not only the advantages but also the weaknesses of my own race.
Q.- What was your attitude, on duty and outside your duty concerning Jews?
A.- I am referring that question to the time prior to 1933. As penal judge and civil judge I had a great deal to do with Jewish attorneys.
Cooperation with them was no different from what it was with the German attorneys.
Q.- Were you ever, directly or indirectly, charged, with anti-Semitic tendencies?
A.- Such a charge was never leveled against me in those days.
Q.- Were you ever charged with being a philo-Semite?
A.- Before 1933 we judges in Nurnberg were particularly exposed to that charge because everybody who lost a case or a law-suit with a Jew probably thought that he had lost his law-suit because the judge was pro Jewish. The nonsensical question was once asked about me in a national socialist newspaper of Central Germany as to who was able to produce evidence that I myself was of Jewish origin.
Q. In your private life, what was your attitude toward Jews?
A. I neither had advantages, nor did I suffer disadvantages from Jews, nor was I pro-Jewish in the way that I might have thought everything that was connected with Jewry was good. For me the decisive thing was the person. I am sure it is merely an accident, but actually, before 1933, when I lived a very private life with my family in Nurnberg, apart from a purely Aryan family, I had social contacts with a doctor who was married to a Jewess; and regularly, once every week, I met an attorney with whom I had been friendly since our days at high school; and the woman doctor who was our family doctor was also a Jewess.
THE PRESIDENT: I seem to remember that this testimony has been given before. We are more concerned with the official conduct of this defendant, the charges against him, and not with whether he had a friend who was the husband of a Jewess.
DR. KOESSL: Yes.
BY DR. KOESSL:
Q. You mean to say, then, that your research into the racial problem had not caused you to draw any consequences as far as the Jews themselves were concerned?
A. That never occurred to me.
Q. I am now going to skip a few questions. Page 33, at the bottom.
Did you believe that there would be personal consequences for the Jews if the National Socialists were to come into power?
A. I did not believe in that because I did not assume that the Party program would ever be put into effect.
Q. Did you have any personal experience which made you realize that the Jews were in great difficulties? Would you tell us briefly, please? And when was it that that occurred to you for the first time?
THE PRESIDENT: Will you state to us in a few words what this personal experience has to do with the guilt or innocence of the defendant?
You are far afield. We see no relevance to the question at all.
DR. KOESSL: The Katzenberger verdict has been presented here by the prosecution.
THE PRESIDENT: And we are glad to hear anything which relates to the Katzenberger case. The Tribunal has never stopped you on a single word of testimony relative to that case. In fact, yesterday you announced that you were coming to the Katzenberger case, and from that time on we made no suggestion as to abbreviating your evidence. We have not heard a word about the case yet. You will be given full freedom to discuss that case.
DR. KOESSL: On account of the charges which have been leveled against the defendant in connection with the Katzenberger case, and because the defendant is supposed to have been activated by entirely different motives in passing that sentence, I have discussed the matter with him in order to eliminate that allegation of different motives.
THE PRESIDENT: You can do it by general questions, and you have done it.
BY DR. KOESSL:
Q. Witness, will you please refer to page 55, at the bottom of that questionnaire?
THE PRESIDENT: You had better read your questions out loud so the Tribunal will know what you are questioning him about.
DR. KOESSL: I only gave a little indication to him, because I am putting some of my questions out of their original order.
THE PRESIDENT: You can answer without the necessity of your memorandum, I think.
BY DR. KOESSL:
Q. In your affidavit you mentioned that it is difficult , particularly in the Jewish and racial question, to keep oneself free of mass psychosis --page 35, Exhibit 473. What did you mean by that?
A. My statements in my affidavit concerning that point are connected with the question of the application of the laws which are also mentioned there.
One solves questions of offense and evidence by sober, realistic considerations. It is a question of logic which can be dealt with by use of the law. As to actions where, within the meaning of the law, sexual intercourse may have occurred, and as to whether and to what extent blackout measures and war-time conditions have been exploited, even the particular serious offense covered by Article 2 of the Public Enemy Law, and--and this is the same--the particular disreputability of an offense under Article 4 of the Public Enemy Law. They are not questions which can be dealt with by the discretion of the judge, but they are the facts of the case, the basic facts of the case. That is to say, they are criteria of the facts of the case. As to the personality of the offender, the motives of the offense and the circumstances, the effects of the offense, the degree of aggression against the law and the gravity of the offense, concerning all those circumstances reasons have to be given which can be examined and evaluated according to the laws of logic.
Now, some people take the view that the increased scope of a penalty is connected with the sound instincts of the people, so that in effect people have been sentenced to death because they had erred against the sound instincts of the people. That is refuted by the text of the law, which is clear. All the same, it is important to realize what the functions of the concept of the sound instincts of the people are concerning the facts of the case under law. At first glance one can see that the facts of the case, under Article 2 and 4 of the Law Against Public Enemies, have come to grief as far as the technicalities of the law are concerned. Article 2 relates to the special facts of a case; Article 4 deals with all other facts of a case. Article 2 makes the death sentence dependent on the facts of a particularly grave offense. Article 4 appears not make that demand, it is concerned with less grave offenses than article 2.
On the other hand, an interpretation of Article 2, concerning the smallest theft in a blacked-out streetcar, leads us to sentence that with a penitentiary term in every case, and no doubt that was not within the meaning of the law, nor was it the purpose of that law.
However, under Article 4, in the case of less serious offenses, if war--tine conditions had been exploited, the same would be the case.
Court No. III, Case No. 3.
Here under Article IV of the law against public enemies, the legislature had in mind the wish to create a ruling by stipulating that the increased scope of penalty was only to apply if the sound instincts of the people on account of the fact that the offense was particularly object, demanded a higher penalty. Here it becomes clear that by involving the sound instincts of the people, a limitation of the application of the law had been created. The bulk of the lighter offenses and the offenses of medium gravity were to be accepted. Difficulties could only arise in border cases. Crimes from the very outset did not come under that legal advantage of the legal limitation.
If one remembers that Article II, by its nature, was a special provision of Article IV, then it becomes obvious that Article II--that those two articles have to be used to supplement each other. That is to say, the increased penalty scope only is to be used if the sound instincts of the people, because the offense is particularly object, demands the higher penalty. In Article IV too, the death sentence is made dependent on the offense having been a particularly serious one. Whereas the concept of the sound instincts of the people of the elimination of light cases also serves the sorting out of the so-called border cases--whereas as that article serves all those three purposes, and in effect it is only of importance in those cases, the concept of the particularly serious offenses, even according to official instructions which followed up the jurisdiction of the Supreme Reich Court as a genuine fact, is outside the discretion of the judge and comes from life as such. The existence of such a criterion distinguishes the particularly serious case from the other facts of the case and makes it a fact on its own for which the death sentence is mandatory.
Articles II and IV of the Law against Public Enemies, therefore, are concerned with two facts: for one, there is the penitentiary sentence; and for the other, there is the death sentence. The facts where the death sentence applies are different from the facts for which the penitentiary sentence is to be applied, because with the first, as a Court No. III, Case No. 3.further and decisive criterion, there is added the concept of it being a particularly serious offense.
The element in the law of the socalled healthy instincts of the people, which concept had so often been attacked, has a weakening effect on the law and does not play a practical part if a serious crime has actually been committed. In such a case, the solution of all other problems is a question of the logics of the law. For the assumption of a particularly serious offense, one does not think of a crime which is particularly serious of its own type; that is to say, robbery is enough. It is not necessary that a particularly serious case of robbery has occurred.
Q Just a moment. That decision by the Supreme Court, I have presented as Exhibit No. 10.
A Now may I revert to the question which introduced this discussion, and I would like to say this: It would be quite a useless undertaking to try and explain to the other world--that is to say, the presentday -- a world which has gone down with ourselves for in the Katzenberger case the focal point of the sub-evaluation which is given to it today, lies not in the wartime conditions, but it arises from the fact that it was a case of racial defilement. It is impossible even to try and make people understand that we should have had that feeling in the criminality of that event in a world which had entered on the wrong moral path.
What took effect here was the fact which here has once been described as the tragical situation of the European Continental judge, which lies in the limitation of his office. The fact that he was subject to the law prohibited to him an examination of penal laws as to their moral or ethical value.
THE PRESIDENT: We have listened to a long dissertation on that subject both from this witness, from Dr. Jahrreiss, and from some others. You are wasting your time with a lot of philosophical conversation here which is not aiding your case and is consuming our time. This Tribunal has construed laws before this for very many years. We are Court No. III, Case No. 3.able to understand something of the nature of judicial discretion and to know that that discretion is not a free discretion either here or anywhere else, and we also know that the human appraisement of facts cannot be wholly separated from the estimate as to the law in a particular case, especially when the question is as to whether the facts are very severe or a very serious offense.
If that is to be laid down in this Tribunal here by this witness as being a pure question of law, there will be some difficulties in convincing us of that fact.
Now let's get down to the facts of this case and discuss them. Let us know what was done.
BY DR. KOESSL:
Q Witness, I am going to skip quite a number of question, but there is just one question about which I would like to ask you briefly because the "Stuermer" has been presented here. What was the importance of the "Stuermer" and its propaganda?
THE PRESIDENT: That matter has been covered sufficiently. This defendant hasn't been connected with the "Stuermer".
BY DR. KOESSL:
Q When did you have your first contact with the Katzenberger case? I have skipped seven pages.
A The first time I came into contact with that case was in connection with the decision about the appeal against the warrant for arrest; to put it better, shortly before I must have received some information or other about the case.
Q Is the statement by the witness Ferber correct to the effect that it happened at the end of July 1941?
AAccording to my recollection, that statement is correct.
Q And how was the case brought before you?
A I assume that the question that you mean to ask me is how it was that I first came to hear about the matter. Well, I must point out that as far as the existence of the Katzenberger case is concerned, Court No. III, Case No. 3.I knew nothing about it to begin with.
After an indictment had been filed with the Penal Chamber, something else happened--something I could not ignore, and something about which I had not been told.
There were two possible ways for me to hear about such matters. One way was that after the prosecution had passed on the indictment to the higher authorities - it was obliged to do so -- that in that connection the public prosecutor received instructions from the higher authorities to the effect that he was to decide whether the case might not have to be judged according to the provision of the law against public enemies. The second way was -- and theoretically it is more likely that that was how it happened, and from the practical point of view also it is most likely that it happened that way - that the judge who dealt with the case on receiving the indictment, following the custom in Nurnberg - and that was the custom elsewhere too approached me with the question whether the Special Court was not competent in this case.
That second possibility, that is to say, the most likely possibility, did not only exist, but that is actually the way by which I did hear of the matter. I remember that for certain. That was obvious insofar as - and that was natural - the judge as it says in the law, in every phase of the trial, has to examine his own competency. The presiding judge of the Penal Chamber, after he had received the indictment, therefore had to examine the question whether he was competent. He did examine that question and he came to see me and brought the files with him. He said that that was quite obviously a case to be dealt with from the point of view of the public enemy law, for after all the husband had been called up. I emphasize that that was not an extraordinary event; I have stated here before that it was the general custom - a custom which was followed by other courts as well that in the case of files where one believed that I was competent, these files were sent to me quite informally to give me an opportunity to examine that question.
I perused those files and I arrived at the conclusion that in consideration of the fact that the husband of the Seiler woman had been called up, Article IV of the law against public enemies was probably applicable.
But I had considerable misgivings as to whether the case could be clarified sufficiently to support the indictment. That explains that after I had dealt with the case, investigations were instituted which went on for many months. When I had arrived at the conclusion that the suspicions, such as they were, spoke in favor of applying the law against public enemies, I returned the files to the President of the Penal Chamber, and I am sure I informed him of my opinion, because I always used to do that. I had to return those files, for in case the prosecution were to concur with my opinion, the indictment would have to be withdrawn from the penal chamber and that was admissible under the law.
I am sure that, because that was the custom with me, in connection with the trial, I contacted the Senior Public Prosecutor, who, I assume, for his part, reexamined the matter, and was inclined to share my point of view or even concurred with it. That the Senior Public Prosecutor, or the expert with the prosecution, Markl - that the suggestion didn't come from them is evident merely from the fact that they had submitted the indictment to the Penal Chamber, and there is no reason which might have caused them to change basically the opinion they had held before.
Q. Witness, that informal contact which you had with the president of the Penal Chamber - or to put it more correctly - the contact which the President of the Penal Chamber made with you, did you enter that in the files?
A That wasn't done either in this case or in any other case. That wasn't the custom. That was an informal contact. If it wasn't done by word of mouth, it was done by notes, and those notes were made on a piece of paper which could be removed at any time. That was the custom in all such cases.
Q Ferber described that withdrawal of the indictment as follows:
"Before I had time to arrive at a decision at the Fourth Penal Chamber in the Katzenberger case, on the very same day Public Prosecutor Markl withdrew the indictment from my Penal Chamber. In reply to my question as to why he had done so, Markl told me he had not withdrawn that indictment at the instruction of the Ministry of Justice, but that Rothaug had requested him to do so because Rothaug was planning to make a special case of the Katzenberger case and to apply the law against public enemies. Rothaug then rejected Katzenberger's appeal against his arrest. I heard about that through a pass which I had handed over to the defense counsel Herz and which he returned to me."
That is Ferber's description. What are your comments?
A What happened between Ferber and Markl six years ago, when I didn't witness nor did I hear anything about it, but it is altogether possible that Ferber even in those days put aside his own initiative in the matter, for there might have been a reason for not showing Markl..... But the question is whether that description of the situation is in accordance with the truth. At any rate, what happened, as far as I am concerned, is what I described here.
Q: You mentioned that it was customary for developments to go the way which you have described here. Do you know of any other cases where the same thing happened?
A: At the moment I can't think of another case. Anyway, I can't think of the exact file notes but that was the general custom.
Q: What did you do when, in that informal way which you have described, a penal chamber sent you files asking whether you considered yourself competent in this case?
A: If such files were sent to me in my capacity as presiding judge of the penal chamber and if I considered myself competent, I kept the files right away; but that was not possible in special court cases because first the indictment had to be withdrawn and had to be refilled before the special court.
Q: What was Ferber's attitude in such or similar cases? Can you give us a description of a concrete case or can you give us details of such a case so as to elucidate Ferber's attitude to such questions?
A: Ferber was very accurate in his work. He was always chasing up things and his work was exemplary. I remember one case where the prosecution first of all filed the indictment with the judge of the local court. I believe they applied for ordering a penalty concerning a prison sentence. Two people, shortly before the harvest, had destroyed a large field of hops. One intended to pass a relatively short prison sentence. Ferber accidentally heard of the case and he saw to it that the order for penalty was withdrawn by the local court and the indictment was filed with us. His evaluation of the facts was correct.
Q: How did the Katzenberger case continue?
A: As I have already pointed out, I informed the senior public prosecutor about my views.
Then a decision was made to withdraw the indictment from the fourth penal chamber and to bring the case before the special court by agreeing that it was a case for its competency and that was done by presenting to us the appeal against arrest for our decision.
Q: Did you decide about the appeal against the arrest?
A: Ferber says, "Rothaug rejected the appeal." That is not correct in so far as I had no legal competency to do so. The special court by decision, had to reject the appeal against arrest, and I base myself on the possibility that here Ferber too took part in making a decision about that appeal as he knew about events it was likely that I asked him to participate in making that decision.
Q: On what assumption did the special court go?
A: It went on the assumption that suspicions were such that Article 4 of the law against public enemies would probably apply. The appeal against arrest was rejected because the same had been done in all other cases and it was pointed out that this appeal was rejected because there was a suspicion that Article 4 of the law against public enemies might apply.
Q: Did the prosecution immediately refile the indictment with the penal chamber?
A: The indictment was filed with the penal chamber and that proves that at that time anyhow the prosecution considered that the case had beached the phase where it should be indicted; and that probably they would now immediately also file the indictment with me. But in fact that is not what happened. And evidently the reason why it wasn't done is that I had voiced misgivings to the effect that the facts of the ease had not yet been clarified sufficiently to support the indictment and, as I used to do in such cases, I am sure I must have suggested the direction in which I considered further clarification of the facts necessary Perhaps when returning the files to the prosecution I, as I did frequently, even laid down my opinion in writing in the files with the aim of, when the case would come up for trial, from the very beginning having a proper basis for the judgment.