Q. Did you instigate that suggestion that Katzenberger should be medically examined?
A. That was done exclusively at my initiative. The prosecution themselves in this case had refrained from having an expert opinion asked for, but because I deemed it necessary, after I had read through the files, I asked for such an examination.
Q. Bauer says that Katzenberger had neither been mentally sick nor weak. Why was it then that you asked for an expert opinion on him at all?
A. Under the assumption of Article 51, Section 1 or 2 it is not necessary that the defendant should be mentally sick or weak in the medical technical sense. There may be other causes where life itself would not consider that it was a case of mental sickness or weakness.
The reason why I asked for an expert opinion on Katzenberger was due to an experience which I had repeatedly in the case of old people; that is to say, that arterio-sclerosis in the brain region may affect the mental capacity of the individual and his capacity of standing trial. Therefore, as in many other cases, in consideration of the age of the defendant, I ordered that an expert opinion should be given. I told Bauer, because I felt a certain need to apologize for hurrying him into this job, as the files did not give any indication that the defendant suffered from any mental trouble that only his age had caused me to ask for a medical opinion, and I explained to Bauer that this was only a matter of precaution.
Nowadays, of course, this is called a matter of form, but by ordering that such a medical opinion was to be given, I was very serious when I asked for that opinion for otherwise there would have been no point in it at all.
Q. Is it right that on account of that expert opinion you postponed the date for the opening of the trial by a few days and was it quite easy to postpone a date?
A. It is correct, and in this connection, to give the medical expert time, I postponed by a few days the date which had already been fixed; and it did make some difficulties because the whole machinery of witnesses had to be upset and under certain circumstances, a report would have to be made.
Q. Did Dr. Bauer know the files at that time?
A. He didn't know the files because he called on me to get them.
Q. Is it right that Bauer made a statement to you which showed that he was in sympathy with Katzenberger's situation?
A. I know nothing about that. People frequently imagine such things and then believe in them.
Q. What was the age of the Seiler woman at that time?
A. As far as I remember, she was a woman of over thirty.
Q. Were you in the habit of describing women over thirty years of age as German girls?
A. Neither I did that nor did anybody else.
Q. Did you discuss the Katzenberger case with Bauer?
A. I am certain that I must have done so for there was a need for certain instructions and it is most likely that I mentioned the case as such and I am inclined to assume also that we discussed that main point of circumstantial evidence.
Q. How long had you been familiar with the Katzenberger case at that time?
A. At least eight months and certainly it was no longer a case that could have caused any emotion with me.
Q. Did you actually make that statement with the contents and in the form as it has been described?
A. I think that is out of the question.
Q. Do you remember the telephone conversation?
A. I remember quite vaguely that there was a telephone conversation.
Q. Who put the call through?
A. I don't remember for certain but I assume it was an office, -if that telephone conversation had any connection with the Katzenberger case at all -- which had heard that the date had been postponed, and these must have been such agencies or people who, by reasons of their office, had to be notified of the postponement. Probably -- and I assume that on account of the facts which Bauer describes here -- it was the prosecution which in the meantime had been informed that the trial would be postponed and which, consequently, wanted to know why the case had been postponed, whether more difficult reasons applied or what had happened.
Q. According to your recollection what may it have been about?
A. It can have referred to any case. It can also have referred to the Katzenberger case. The man asked why the trial had been postponed and I told him that I thought it was necessary to have an expert opinion by a physician and probably he asked then whether any serious difficulties had arisen and probably I told him that this was only a matter of precaution.
Q. Did that conversation refer to Bauer in any way and did you stare at Bauer when you were speaking the words, "That man will be all right"?
A. Oh, that is absolutely out of the question. What could Bauer have done in that matter? It is just as likely -
THE PRESIDENT: The question is as to whether you stared at someone. That does not merit a very long answer.
Q. Bauer makes a similar statement where he says that he tried to take care of a Pole who had been sent in with bad burns. In that connection he says he had a telephone conversation with some official at the court or with the prosecution. Bauer's statements are somewhat vague and he left it open whether that conversation referred to you or to Oeschey. Did anybody speak to you over the telephone about a Pole who had burns or something like that?
A. I know nothing about that and it is out of the question that somebody talked to me over the telephone about that. I assume that all that happened after my time in office.
Q. Concerning the preparations for the trial in the Katzenberger case, Ferber says, in Exhibit 151, "For the trial at Courtroom 600, political persons were represent in large numbers and Rothaug had managed to get the Reich inspector there too. I remember that tickets were issued for the trial and that a number of reserved seats had to be given to Rothaug for representatives of the Party. Rothaug evidently was trying, under a semblance of law, to give a pretense and to create the premisses of destroying Katzenberger as a Jew."
Did the preparations of the set-up in which the trial was to be held, give any indications of such intentions?
A. That question has to be denied. Naturally the preparations for any trial do not allow conclusions as far as intentions go. All one can conclude is whether a case in itself is considered important or not.
But, as for the judgment or the outcome of a case, nothing is indicated as far as that is concerned.
THE PRESIDENT: Were tickets issued for admission to the trial?
THE WITNESS: Yes, Your Honor.
BY DR. KOESSL:
Q. I shall come back to those tickets later. What importance had to be attributed to the fact that a trial was held in front of such a large public?
A. Under the German Code of Penal Procedure, the fact that the public is admitted to a trial constitutes one guarantee that the proceedings will be conducted in an orderly manner.
Q. Did Katzenberger have a defense counsel?
A. Yes, he had.
Q. Was that defense counsel a Jew?
A. Yes, he was.
Q. Did the Seiler woman have a defense counsel, too?
A. Yes, she had.
Q. What sort of a man was the defense counsel for Seiler? Was he a National Socialist or what was he?
A. I knew him. He wasn't a National Socialist for certain. My impression was that he was entirely uninterested in politics and he was devoted to his profession.
Q. Was the date of the trial announced in the press?
A. I don't recollect that.
Q. I would like you to tell us whether the defense counsel of the Seiler woman was a Jew by any chance.
A. No, no.
Q. Was the date of the trial announced in the press?
A. I don't remember that.
Q. You just told us that admission tickets were issued.
A. The question was -- this is the way I want to frame my answer:
I assume so because it has been maintained here but I don't know that for certain today.
Q. Were tickets issued for other trials too?
A. Yes.
Q. And did you know of the members of the Franconian Party Agencies who were among the audience?
A. I can't remember that I saw anybody from a Franconian Party Agency among the audience, anybody whom I knew.
Q. How was it that Reich Inspector Oechsle was present and why was he interested in the outcome of the case?
A. The sphere of work of Reich Inspector Oechsle was concerned with internal party matters and in the execution of his duty he occasionally came to Nurnberg. It was at one of those occasions that I met him. As I have already stated, the Seiler woman was a Party member and, therefore, in the proceeding against her, according to the existing provisions, the prosecution had to report to the Party, and that is how it became generally known and that probably was how he heard of it.
He asked me whether it was permissible for him to attend the trial. As it was a public trial, I said, "Yes", it would be all right for him to come, and that was how the came to attend the trial. He wore civilian clothes, by the way, but he didn't display the flattest interest in the outcome of the case as such.
Q. Were there any reserved seats in the court room?
A. There were reserved seats. There were about three or four seats which were reserved for representatives of the administration of justice, whose task it was to keep an eye on the way proceedings were conducted.
Q. Did you ask for admission tickets to be handed to you?
A. I had nothing to do with the admission tickets, as such. This is the way it was. When a case was pending with me, I had to submit a report to the so-called Justice Press Office so that agency was in a position to judge whether the case might, in any way, affect the public. That Justice Press Office (Justiz Presse Stelle) did its work according to its own directives which it received from the administration of justice. That Justice Press Office, for its part, negotiated in such questions as would affect the public, with the so-called Gau Propaganda Office (Gau Propaganda Amt) which, for its part, decided, in agreement with the Justice Press Office, whether a case was to be discussed in the press be it that the date was announced, be it that the proceedings were reported. I had no influence on those matters. If it was decided that the case was to be reported in the press, then it was to be expected that crowds might want to enter the court room and, so as to deal with such crowds, we used to issue admission tickets which were distributed by the office. They were distributed to anybody who came along. It did happen that people, who were particularly interested in attending a certain case, did not get any ticket and came to me and asked me to give them an opportunity to get into the court room.
To be able to help them, I asked for something like eight or ten tickets to be put on my table. As a rule, such tickets weren't used at all. It did happen sometimes.......
THE PRESIDENT: (Interrupting): I think you've covered the matter of tickets sufficiently, adequately. You may pass on to something else.
BY DR. KOESSL:
Q. Who assigned Ferber to be one of the associate judges and to write the opinion in the Katzenberger Case?
A. That can only have been I, under Article 69 of the Junicature Act.
Q. Were there any other ways open to you?
A. Naturally, I could have assigned any other member of my chamber for this case.
Q. Did Ferber make any attempt to get out of that assignment?
A. He didn't make any attempt whatsoever.
Q. Were there any opportunities for him to stay away?
A. Naturally, he could have changed with another judge, or he could have reported sick.
Q. Did Ferber ever make a gesture, did he give an indication, did he hint anything to you to the effect that he assumed that you intended to destroy a Jew by keeping up the semblance of legal procedure, or what attitude did he adopt?
A. Ferber never gave any indication of the kind. We never thought of such matters.
Q. Do you know of shootings and such like matters?
THE PRESIDENT: What is that question again? What is that question?
DR. KOESSL: Do you know of shootings?
THE PRESIDENT: What kind of shootings are you talking about?
DR. KOESSL: Ferber indicated that it had become known, and that that it had been mentioned in the press, that a man, who had been sentenced by the special court to three years imprisonment, was shot dead. That passage he further connected with other matters, and from that he says one might conclude that the associate judges had been influenced by those shootings and, therefore, had been made dependent and had been pushed into a situation where they were under compulsion. In that connection, I am referring to Ferber's saying that the associate judges had found themselves in a situation of compulsion, in connection with the way that Ferber, referring to the Katzenberger trial, said that Rothaug observed a semblance of law, but actually wanted to exterminate Katzenberger.
THE PRESIDENT: The only question was, whether he knows something about shootings. I suggest that the question was a little indefinite. Did shootings have anything to do with the Katzenberger Case?
DR. KOESSL: Only with that situation of compulsion in which the associate judges were supposed to have found themselves.
THE PRESIDENT: Let him answer.
THE WITNESS: The question itself, I believe, has been discussed repeatedly and at great length. Those shootings were an entirely different matter. Naturally, people know about them because it had been reported in the press, but I consider it altogether out of the question/..........
THE PRESIDENT: (Interrupting) Put your earphones on. Do you know anything about any shootings which related to the Katzenberger Case in any way?
THE WITNESS: No, no.
BY DR. KOESSL:
Q. To revert to those shootings, did those shootings in any way act upon the judgment passed in individual proceedings?
A. Not in one single case. Those are pure hallucinations which evidently were produced after the catastrophe. Nobody had to have any fear.
Q. However, Doebig, in his affidavit says: "I believe that I am not wrong..," and he is referring to you here, "...if I say that once I heard Rothaug say that it was the fault of the courts themselves that the SS was more and more developing the habit, concerning dangerous elements who had hot been sufficiently punished by the courts, to exclude them from the community and to exterminate them."
A. I consider it advisable not to discuss these questions in this particular context because they have nothing to do with the Katzenberger Case.
Q. Now, we're going to examine the statements by the witness Seiler. The statements by the witnesses Ferber Seiler and by Dr. Bauer are criticizing your method of conducting the Katzenberger case. According to the testimony by the witness Seiler, you addressed the audience and said: "The Jews are our misfortune. It is the fault of the Jews that this war happened. Those who have contact with the Jews will perish through them. Racial defilement is worse than murder, and poisons the blood for generations. It can only be atoned by exterminating the offender." English transcript, page 1052.
Did you made remarks of that kind, or of a similar nature, or what exactly did happen?
A. That expression: "The Jews are our misfortune" or "It is the fault of the Jews that the war happened ", or "Those who have contact with the Jew will perish through them" -- those expressions are well known slogans from the Stuermer, which I think appeared in large letters in every issue of the Stuermer.
THE PRESIDENT: Mr. Witness, the only question before you is whether you used, in substance, the language which was attributed to you. You may answer that question. We are not concerned with who else used the same language.
THE WITNESS: Neither on duty nor in my private life did I use such generalities, but the facts which have been discussed here, and which were mentioned in that issue of the Stuermer, concerning all that I would like to give my view on one point. That is the question as to war guilt. I can remember more or less exactly -and that idea is also mentioned in the opinion of the judgment in the same way in which I expressed it at the trial. Naturally, it was not the purpose of the trial to prove that it was the fault of the Jew that war had broken out. The point was, however, this. As is known, both defendants tried to make the situations which incriminated them appear more harmless and to make it appear as if their relations had been everyday matters. And in that connection, I remember that I put it to Katzenberger that, particularly here in Number, he must have known that such relations were particularly dangerous even if the relations had been harmless, because, ever since 1933, he had observed the developments and then, finally, war had broken out and the Jews were held responsible for the war, and all these events should have caused him to be wise and to abandon relations which were bound to endanger him, even if those relations had been only harmless and if they had been harmless it would, after all, have been easy to abandon them. That thou ht of which I made use by way of arguments, both at the trial and in my oral opinion, that thought appeared in the Stuermer. I prefaced if I remember correctly, with the words, "He also mentioned the fact that it was the fault of world Jewry that war had come."
Q Now, it has been alleged that in other cases too you addressed the audience. What were the speeches about? What was the purpose those speeches?
A I am charged with having addressed the audience, particularly in connection with the Katzenberger case. In addition to the generally acknowledged fact that, under the German Code of Penal Procedure, trials have to be held in public, there is also a fact that by the trial this general law-consciousness should be deepened....
THE PRESIDENT: We have extended beyond our time for the recess. We'll take fifteen minutes' recess now.
(A recess was taken).
THE MARSHAL: The Tribunal is again in session
DR. KOESSL: May I be permitted to continue.
BY DR. KOESSL:
Q Witness, you came to the explanation of the connections where you have made the so-called speeches to the audience. Will you explain the purpose and the connections for making these so-called speeches?
A I base myself on the fact that the reason for the trials being public according to the German rules of procedure was that the conscience of law should be strengthened and that the population should be educated in the meaning of the laws. Our sphere dealt with entirely new legislation, new in consideration of the basis on which it was founded and of its purposes; for that reason -- and of course one has to consider that this new legislation proveded severe and most severe consequences, and that makes it understandable why I -- and that was with approval of all interested offices of the Administration of Justice -- was of the position that it was necessary to bring as quickly and as effectively as possible this legislation before the population in order to warn them because that warning in a certain sense is a justification of the severe sentence, particularly the extent of the sentence; and that explains why I had the intention to conduct my trials before the public and as many people as possible and as broadly as possible. That also explains why it was not only my intention to describe the bare legal facts but the offenses regardless in what field they were committed and to explain them from the point of view of the doctrine of the State and from the points of view of the legal system and the political point of view. The guiding thought for me was that it was our duty, and at the same time, our justification before the public to explain that the sentence pronounced in any individual case was the consive consequence of the legislation provided therefore. It has to be added that fundamentally according to German rules of procedure, the sentence can only be based on the entirety of the trial; that is to say, that all points of view which are concerned with the penalty or the extent of penalty have to be discussed in all details during the trial because that alone puts the defendant in a position to recognize the main points which may be directed against him; and I also want to emphasize that at no time were lectures made for their own purpose, but that such statements were made in connection with the testimony of the defendant or the witnesses at the time and at the place where it seemed proper.
Q Ferber charges you generally, and particular in the case Katzenberger. I intended to add that it is therefore quite certain that at that session I also stated my opinion concerning the problem of race defilement, and that on the basis of the doctrine of the State, on the basis of the legal system, and on the basis of our political and legal foundations. That I also discussed the danger in the manner as these things were regarded at that time according to the legal situation, the danger arising from the mixture of races to coming generations. I consider that to be a fact. What words I used and what thoughts I may have expressed in detail in discussing these matters, that, of course, I could no longer tell today; but what I object to is the assertion that these may have been statements of the level of the "Stuermer"; and with absolute certainty I should like to exclude the possibility that in that connection I demanded any physical destruction. That, according to the law, would not have been possible. That, of course, based on the fact of the war which went far beyond any racial point of view.
Q Ferber charges you generally, and particularly with reference to the case of Katzenberger, with having used psychological evidence. What can you also say about that? May I also remind you that in introducing that thought of psychological evidence, Ferber stated when asked by the presiding judge that he does refer to circumstantial evidence however, also beyond that is something more. If isn't quite clear what he refers to, perhaps the manner in which evidence was gathered, perhaps the way witnesses were heard. Would you please comment on that?
A It is the first time for me also in this trial that I have heard that term, and I don't think it comes from a very smart fellow because psychological evidence basically is nothing else than "Wooden wood." There is no evidence, no proof that is not somehow psychological, and that is where this big problem lies -
THE PRESIDENT: I seriously doubt if you should delay the court in discussing that term at all. I think it is entirely unnecessary to discuss it. We are aware of the fact that it takes some psychology in order to appraise evidence. I take it that he means that from the evidence you arrived at some conclusions with reference to the intent and purpose, motives of the Katzenberger and Seiler people. The designation "psychological evidence" has no meaning to this Tribunal at all.
BY DR. KOESSL:
Q The witness Seiler in her direct examination testified that she and the defendant Katzenberger had denied under oath at various times those relations. Was Katzenberger heard under oath?
A. No, he was not heard under oath. That w as not admissible under German law because German law holds that the defendant had to be entirely free to use all possibilities for his defense. That is considered a certain guarantee to aid in finding the truth.
Q. The witness Seiler also stated in her direct examination that the judge Rothaug used the assumption of her guilt as the basis for the entire conduct of the trial. The reason for that discrimination in her opinion had been that Rothaug did not want to hear any answer. Did you examine the witness Seiler thoroughly?
A. Of course she was examined thoroughly, and I may point out--and that can be found also from reading the opinion---that this was a so-called case of circumstantial evidence, that a large number of individual situations of more or less importance were compiled in order to make it possible to reconstruct the circumstances which were of importance for the evaluation; and it was always like thsat, and it was no different in this Katzenberger-Seiler case, that I discussed with the defendants every phase and every little detail, not only in order to completely clarify any particular action. That of course, was the main purpose, but beyond that it was of importance to establish what the point of view of the defendants was and how they described matters; that is the reason why that matter took a day and a half, and in addition to that, after the examination of every witness who offered something new, again the two defendants were heard thoroughly concerning the new situation. At any rate the evidence which was taken as the basis for the judgment, was discussed in all possible detail.
Q. Ferber says in Exhibit 151 concerning your manner of examining: "As for the formal contents of the statements made to the defendants during the trial, it has to be said that he took into consideration the National Socialist axioma of ruthless combat; against the Jews by the Reich Security Main Office?
A. I don't know anything about the program of the RSHA, and certainly nothing about any demand contained in such a program. I never before heard about a matter of that kind. That such plans were under way and the manner in which they were carried out, I only found out in this trial. For us, the sole importance were the facts which had any connection with that individual case, and these facts only were to form the basis of the judgment as can be seen from the judgment itself.
Q. Did you fight against the Jews? Did you take any action against the Jews by statements or reproaches as Ferber says?
A. I can't understand how that could have been possible.
Q. Ferber says in Exhibit 151, commenting on the manner in which witnesses were heard, I quote, "Rothaug, as presiding judge, continuously they could have made by repeating the answers given to the police and one could observe how the witnesses were under dures of that situation, a compulsion under which they stood, because they had been put into a trial which was really a big show." Will you please answer to that?
A. I can say the following, according to my recollection. That session did not distinguish itself from other cases of that kind where the public was admitted. There were even fewer visitors. I still remember that, and it is quite clear in my recollection. It even produced doubts in my mind as to whether any announcement had been made about the case coming up, but that I could not say for sure. At any rate,witnesses in that trial were heard in accordance with the rules such as it was done in all oases. That entire description reminds me of the Meiler affair in the Gaishauser case. These people themselves were rather talkative, that is to say, on their own they spoke about these matters, and I do not remember that I had put anything to them from the files which, moreover, would have been quite permissible according to the law. Altogether, I can put against that rather general reproach that I acted correctly and in accordance with the legal provisions.
Q. In the direct examination on page 1025 and the following pages of English Transcript, the prosecutor put the following question to the witness Seiler: "But you also say that Rothaug during the entire trial as far as you can remember, did not want to admit or even take into consideration any evidence to the contrary? Is that the way you remember it?" And the answer by the witness Seiler "Yes, there wasn't even any contradictory evidence." Therefore, I ask you, witness, was any motion for evidence made in the main trial, and did the defense have any possibility to do so?
THE PRESIDENT: Answer that question briefly. That question can be answered very briefly.
A The defense had all possibilities in that direction; the defendants themselves had the same possibilities.
THE PRESIDENT: All right. Did they make any such motions?
AA motion of that kind was once suggested if I remember correctly on the part of the defense. It was the question of ah occurrence which was rather irrelevant for the evaluation of the facts. I pointed that out and explained that we were quite ready to assume that that matter was so in evaluating the facts and then as far as I remember a formal motion was not made.
Q By using that term "a motion was suggested", do you refer to the witness Leitner, whom the witness Seiler mentioned?
A That may be so; that is how I remembered that matter altogether.
Q The witness Seiler said with reference to that motion to hear the witness Leitner, the motion was not allowed but simply rejected with the remark - well, that witness must have been in error. Was that a rejection of the motion or what did you mean to express?
A The witness Leitner at that time may have had that impression at the trial; at any rate, the defense counsel who were present did not misunderstand me and they always had the right, as they very well knew, to make a motion that the defendant should be heard about such and such a question, and such a motion was not made.
Q The witness Dr. Baur stated in Exhibit 157 that in the most common manner you insulted the defendant and used every possibility to describe the alleged relations between Katzenberger and Seiler in the most derogatory way. In addition to that he says "his manner of conducting the trial was always characterized by brutality, shouting at the accused and at undesirable witnesses, but on that day he even excelled himself". Will you comment on that?
A It is one of these most general charges that are brought up here so frequently and there is actually so little concrete matter in it that I am not in a position really to do anything against it except by making the rather general statement that the impression that somebody wants to create here is distorted to the extreme.
I did not conduct trials in that manner. From time to time I got angry, that is true, but at no time did these trials assume the character that is being tried to express here.
Q The opening statement by the prosecution mentions the case Katzenberger on the basis of analogy and states "A further trick in punishment by analogy which was generally mentioned before has the same tyrannical effect in practice as it appears in theory. A particularly infamous case in that field was that of Katzenberger, the sixty-eight year old former president of the Nurnberg Jewish Community -- "
THE PRESIDENT: Just a moment. It is not evidence; it is an opening statement by the prosecution. Just ask the witness concerning facts, and it is unnecessary to repeat the evidence against him which has been introduced by some affidavit. We want him to have full opportunity to state the facts. Repeating the evidence against him doesn't strengthen your question or his answer.
Q I want to ask you, witness, was the point of view of analogy mentioned in the case Katzenberger at all?
A The point of view of analogy according to paragraph 2 of the penal code, does not play any part in the Katzenberger case, because it is not a question of paragraph 2 of the penal code, but of paragraph 2 of the decree a against public enemies.
Q A similar confusion seems to exist in the Grasser case; as described by the prosecution, here also allegedly the case was introduced on the basis of paragraph 2 of the penal code. Could you tell us, witness, what paragraph 2 was applied in the case Grasser?
AApparently this is a mistake, too. It is not Article 2 of the penal code, but Article 2 of the Malicious Acts Law.
Q When you were presiding judge, did ever a case occur where a judgment was based on paragraph 2 under the point of view of analogy?