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?
A I do not remember one single case.
Q The witness Groben in Exhibit 153 has made the following assertions: - which was also mentioned in the opening speech, and I quote: "Rothaug's opinion in this case (Katzenberger) was based in my opinion purely on blind hatred against the Jews. If the requirements were not given to sentence Katzenberger on so-called race defilement, then certainly one could not apply paragraph 4 of the decree against public enemies because if it could not be determined at all when Katzenberger and Seiler met for the purpose of alleged sexual intercourse, then it is even less possible to state that that was done by taking advantage of war time conditions. Briefly, one had to violate the facts in every manner to bring about a judgment against Katzenberger for so-called race defilement in connection with paragraph 4 of the decree against public enemies. I was greatly oppressed when Rothaug pronounced such a sentence, which can only be called legal murder."
THE PRESIDENT: I think it is time that we should go to school. I am about to make some suggestions to counsel. They are made in order to facilitate and aiding Counsel and all who have heard the long quotation which has just been read into the record as preliminary to asking a question. That method is a complete waste of time. The first point as I caught it in that quotation was whether there was blind hatred of the Jews. Now, regardless cf whether the affidavit or the witness has said that Rothaug had a blind hatred for the Jews, all that is necessary is to ask him: did you have a blind hatred of the Jews? And he can answer it. Then, concerning the public enemy law - why did you apply the public enemy law? Then, it is charged that you violated the facts - did you violate the facts? In three or four questions, as short as those, you could bring out every point which the defendant is entitles to have brought out, without having burdened us with long dissertations from a witness who, after all, is testifying against your client. I have been attempting for some days to suggest that this method of examination was equally effective; in fact, much mere effective; and I am attempting once more to suggest to counsel that direct questions, as to what the facts are, are far preferable to the reading of a long statement by an opposing witness.
It is a very simple matter, counsel, and you, as a practicing lawyer, must know how to do it. The subject matter covered by those statements can be inquired of from this witness; you can have his answers. Now, try to do that.
BY DR. KOESSL:
Q Please witness, explain briefly why you applied article 2 and Article 4 of the Public Enemy Decree in the case of Katzenberger.
THE PRESIDENT: That is the way to ask questions.
A What really was the cause for the court to apply these two provisions in the Katzenberger case has been discussed at length in the opinion which has been submitted to the count as a document. I could not say any more in answering that question; I can only summarize and say the following: The judgment is based upon the following: The fact of race defilement was considered a proved fact. First, in those delicate situations which I have mentioned - that was in accordance with the decision of the Reich Supreme Court. Paragraph 2 of the decree against public enemies was applied because it had been established that Katzenberger -- and according to the political conditions in the streets of Nurnberg, if I may say it like that, that was not possible in any different way -- Katzenberger used the hours of the evening and night to get to the house of the woman Seiler. It was clear to us at that time what the purpose was that was connected with that; that in particular these visits had the purpose of at least maintaining these relations; according to the legislation of that time, that was sufficient; and to that the main point of Paragraph 4 was added which was based upon the fact that her husband had been called to serve in combat. That quite generally was considered a fact conditioned by the circumstances of war, based upon the decision of the Reich Supreme Court, and its exploitation was a crime which came under the consequences of Paragraph 4, Yesterday, of the day before yesterday, in another connection I discussed the relation between Paragraphs 2 and 4, and I pointed out what importance the concept of the so-called sound sentiment of the people gained for this question of applying these provisions in individual cases; and I have explained that the purpose of introducing this term into the pattern of the facts according to paragraph 4, was to withdraw a certain number of types of cases, not too severe cases, from the application of that paragraph, but that nobody doubted all over Germany that one could include a crime of race defilement, so that by proving race defilement, the case was fixed to a far reaching extent in the sense of the application of that paragraph of the decree against public enemies, which included a higher extent of penalty.
To that one has to add the fact that the Reich Supreme Court in its decisions was of the opinion that to assume the existence of a severe case one did not have to have proof of a severe case of race pollution, but, as it is stated in one of the Reich Supreme Court decisions, merely of a serious crime, and whether one had to assume whether or not that was a serious crime was based on the standard which the legal system as such provided. That is the most decisive thing. The legal system of the Thrid Reich, at any rate, in its legislation put the concept of the people which was based upon the idea of the race on the first place, and that to the extent that any attack against it and its legal titles was considered a very serious crime.
THE PRESIDENT: May I ask you, counsel for the defendant, or the defendant, if you propose to submit to us those decisions of the Reich Supreme Court, to which reference has been made, and which define a.s being included within the term sexual intercourse, acts which did not involve copulation. I think we would be interested in seeing the facts on which those decisions were based. Counsel has referred to them several times.
A Mr. President, we were very careful to submit all these decisions to the Court.
DR. KOESSL: They are in Document Book No. 1. I shall announce the numbers of these exhibits in the afternoon. They are decisions by the Reich Supreme Court. Moreover, I refer to excerpts from the Leipzig Commentary which L have also submitted where statements about the standards (Wertskala) are contained to which the witness has referred. Also in that case I shall announce the numbers of the exhibits.
THE PRESIDENT: Those are the cases on which the witness has been relying with reference to his contentions, his stated opinion, that the so-called lesser acts constituted violation of the law concerning German blood and honor. We shall be very glad to have those references given to us.
DR. KOESSL: Yes, Your Honor.
Q Witness, were there any doubts among judges-
A I have not quite finished before. What I explained is based upon the practice and decisions of the Reich Supreme Court. In that particular case one had to add something which was specifically mentioned in the opinion. I am of the opinion that that judgment, also as far as the extent of the punishment is concerned, followed the specific policy of the Reich Supreme Court in that field, and that is the opinion we had about it.
THE PRESIDENT: Under German judicial procedure did you find yourself bound by the decisions of the Reich Supreme Court?
A Bound by the decisions of the Reich Supreme Court in the sense of a legal consequence, binding consequences, we were not; but of course the decisions of the Reich Supreme Court as it is the case with all Supreme Courts offered a direction and one could only deviate from that direction if one had better reasons to do it.
THE PRESIDENT: Yes, I understand. This matter has boon explained.
Q Among the judges concerned during the deliberations, was there any doubt about the guilt of Katzenberger?
A I remember the deliberations very well. That conference was as peaceful as could be; I cann't say it any different, for in the course of the trial which lasted a day and a half, the entire occurrence as far as the facts were concerned was based upon the statements of the defendants, and in connection with what the witnesses testified to, and had developed into such a clear picture that there could not have been any differences of opinion; and, after a very short time--and I remember that very well also--we arrived at a decision and actually started to write the judgment down, but considering the importance of the case, we extended the time for deliberations so that the impression should not be made that we wanted to pronounce a hasty decision. There were no difficulties at all, the reason being that the facts themselves were of a compelling logic; and that anything else which was the consequence of the facts just arose from them logically, and in a way as one had to evaluate those things at that time, and, of course, we could not evaluate it based upon any different philosophy, but only based upon the philosophy of and our people, among which we lived.
Q Which motions were made by the defense counsel?
A I would like to say with certainty that one of the defense counsel, without being able to tell who it was, made an attempt in the direction of a lenient sentence, and that he was trying to combat its evaluation as a serious case, but that there was no doubt left about the basic facts in the case. That is the way I remember the case, and it must have been like that; and that was also manifest by the calm deliberations where no points of argument came in existence.
Q Was any one of the associate judges of a different opinion concerning the extent of punishment? Did any one of them vote against the death penalty, for instance?
A The core of the question from the very beginning was the following.
THE PRESIDENT: Let me ask you a question. Did all of the judges vote for the death penalty? Answer yes or no.
THE WITNESS: Yes, absolutely.
THE PRESIDENT: Next Question.
BY DR. KOESSL:
Q At that time, among the jurists around you - but those who were not in direct contact with the case - were there any discussions about that sentence?
A In no way at all. That sentence was never criticized in any way or considered doubtful by jurists who were not connected with the case which would normally be possible.
THE PRESIDENT: Ask your next question.
BY DR. KOESSL:
Q The witness Engert stated that when he submitted the files to the Ministry of Justice, he spoke to Freisler, and Freisler had had misgivings about the opinion from the legal point of view. When Engert returned from Berlin, did he inform you about that opinion of Freisler's?
A I remember that occurrence very well; it happened after Engert had been in Berlin and case to see me. That concerned something entirely different than what was explained today. I was very much surprised and wanted to know the reason why the files were requested so surprisingly, and Engert told me that the reason was the fact that the woman Seiler had been sentenced. In that connection Freisler was supposed to have said that now he knew why the files had been requested. It had not been taken into consideration that the Fuehrer did not want to see women sentenced in such cases; in all cases of that kind, which were based on sexual relations, he attributed the guilt only to the an and that should have been avoided. That was the only question, and he only talked to me about that point, apart from some humorous details which he gave me from Berlin, but which are not interesting in this connection.
However, concerning the fact that Freisler allegedly told him that he did not consider the sentence correct or only that he considered it doubtful at all, Engert did not tell me anything about that.
THE PRESIDENT: That is the answer.
BY DR. KOESSL:
Q What would have been Engert's duty, according to what you know about the duty of a prosecutor, if he had found out that there were some misgivings about the sentence?
A If that was the case such as he describes it now, that he did not consider the sentence correct, and in this case also had the approval of his so-to-say top superior - that is to say Freisler - then it was clear that it was his duty on his own to take legal steps, by applying legal remedies. There cannot be any doubt about that.
Q What did he do?
AAs far as I know, unless something occurred so far removed from my sphere that I couldn't know about it, Engert neither directed the senior prosecutor to do anything about the sentence nor did he even touch any legal remedies in that case. That is why I am so surprised about that entire matter.
JUDGE HARDING: One question, please. Could he have asked for further hearing in this case, or retrial, under the Law Against Poles end. Jews? Could it have been reopened?
THE WITNESS: No, no, Your Honor, that is not what I meant. Referring to the Katzenberger case the Decree Against Poles and Jews could not be applied there because Katzenberger lived in Germany and moreover he was a German citizen. The Decree Against Poles and Jews was applied only to Poles end Jews in Poland and such Poles and Jews from Poland who were residents of the Reich but who, at a certain time -- I think it was 1 September 1939 -- had had their residence in Poland. These prerequisites did not exist in the case of Katzenberger.
Katzenberger was not sentenced on the basis of the Decree against Poles and Jews.
JUDGE HARDING: And he would not have been barred from a right to reopen the trial, then, on the basis of that law?
THE WITNESS: It was not impossible. He, as well as his defense counsel, could appeal for retrial. Moreover, as I had intended to explain before, according to German law and German rules of procedure the prosecutor had the duty to apply these legal remedies once he was convinced that the sentence was wrong, because the prosecutor in Germany is quite generally under the obligation to safeguard the legality of court decisions by using appropriate legal remedies, also in favor of the defendant.
JUDGE HARDING: It depended upon the action of the prosecutor, then? The prosecutor had to take the action for further hearing, is that right, and not defense counsel?
THE WITNESS: The defense counsel could do it, and of course if he had any misgivings he had to do it. But the prosecutor, at the very moment when he arrives at the conclusion that a. sentence is wrong, is under obligation to apply and exhaust all legal possibilities.
BY DR. KOESSL:
Q When was the clemency appeal submitted?
A The clemency appeal was submitted - as far as I recall with certainty the general and specific circumstances - after Engert had returned from Berlin; and I conclude that from the following, which seems to me to be of a certain importance.
I know that Berber, who wrote the sentence, in spite of bis recognized ability, had to work very hard to get it done in time for Engert to take it with him to Berlin. Then Engert returned. Consequently, the clemency plea could only be submitted after Engert had come back from Berlin and allegedly had found out about the point of view of the highest official in the Ministry in Berlin who had to deal with the matter.
Q In what form was the report made?
A The report concerning the clemency question, as a matter of form, has two parts. The question which has been broached here will be clearly answered thereby. The first part always says, almost literally, there are no objections to the legal foundation for the evaluation of the facts in the opinion of the Special Court of such and such a date. And then, secondly, the opinion is stated concerning the possible reasons for clemency: the are of the defendant, any meritorious services he performed anywhere, and quite general points of view which may be of importance concerning the clemency question. The clemency question, of course, does not provide for any limitation on the points of view which may be listed.
Q What did the clemency report say?
AAs far as it became known to me, the report entailed a suggestion to reject the clemency appeal.
THE PRESIDENT: May I ask a question? You referred to the clemency appeal. Now, I understand that a report as to the question of clemency had to be made in all cases of death sentences. Isn't that true?
THE WITNESS: Yes, in all cases and through official channels, regardless of whether anybody else made a report.
THE PRESIDENT: I understand, but that report was not dependent upon any plea for clemency in the sense of a request that clemency should be extended, was it?
THE WITNESS: No, no; no, no.
THE PRESIDENT: And there was no petition asking that clemency be granted in this case, was there?
THE WITNESS: In this particular case the report was to the effect that clemency should not be granted.
THE PRESIDENT: Well, did anybody make a petition or a plea to the higher authorities that clemency should be granted?