Q. Now, in this exhibit you are also being charged with giving passages from sermons which were incorporated in the opinion. Do you still remember whether a sermon delivered by this clergyman had in any way to be touched upon in the opinion?
A. I know, and that is why we summoned this clergyman, that one sermon or several definite sermons were of some importance. But as to what extent we reconstructed these sermons and used them in the case itself, - I have no recollection of that.
Q. Ostermaier, however, maintains that you had worked over the draft of the opinion and that you had charged him that he was lacking every political insight and that he did not realize the serious political significance of the case at all. Please comment briefly.
A. That I read the opinion is certain. I read it again now too. I know my style and Ostermaier's style and I can say with almost absolute certainty that the product that we have before us in its main points is a product written by Ostermaier. It is absolutely untrue and conscious untruth that in connection with that opinion I told Ostermaier of a political judgment--which, perhaps, today he find suitable. This thought never occurred to me at all. There was no reason for it, for in this case itself the political side was the least important.
Q. And now I want to ask you a few supplementary questions. A number of charges about the manner of your examination of defendants and witnesses was stated and objected to. What was the outside form in which you conducted these examination?
A. The outside form was that of a discussion and conference. There was a direct question and answer between the presiding judge and the-
THE PRESIDENT: The witness has told this all before--every word of it.
BY DR. KOESSL:
Q. In general, was the contact of the prosecution and the court, regarding the motion for a sentence, mentioned? When and how was this contact between the prosecution and the court taking place in the case of your special court?
A. That is one of the basic questions which I have not discussed in other connections so far, because it is applicable to all proceedings.
The practice is that the prosecution in Germany is in constant contact with the court regarding certain evaluations of a general nature or evaluations of individual cases. That existed always and it was not objected to or attacked either, and I believe it was generally known. This could be justified on the basis of the entire historical position, and that task of the prosecution, together with the court, to that extent, was a duty of the prosecution. Also the contact regarding the motion for a sentence was, as such, not unusual. This was practiced already also by myself at a time many years before 1933. Later on, this practice, which prevailed especially in Southern Germany, at the beginning of the war was reverted to in order to fight against a certain critical situation of the administration of justice because, frequently, attacks from Party circles and in the Party press were initiated in particular with the fact that, in the court rooms, a certain difference of opinion between the opinion of the prosecutor and of the court had been noticed. This difference of opinion which here and there became apparent, however, did not have as serious a basis as outsiders presumed it did. Perhaps they only exploited that situation because it fitted into the political picture. There was great latitude allowed to the sentence, and everybody, without any political idea, any person could judge a case more seriously and another one less so. But, in order to take away the basis on which the attacks against the administration of justice in general were made, this contact between the prosecution and the court was established as a means that can be used in order, not to let such differences of opinion become apparent to the outside world.
Q: But why was this contact carried out only before the pleas were made for the sentence?
A. The facts which were important in our trials could, as a rule, be judged only as regards the penalty that they deserved after one did not have only some paper documents but the live picture of the whole course of events. In particular, the people who participated in it.
THE PRESIDENT: That's clear. That's clear.
BY DR. KOESSL:
Q: Dorfmueller says once he had an argument with you regarding this contact because of the motion for a sentence. What course did this take? What events were the basis of this?
A: Yes. The reasons stated gave cause to have this discussion shortly before the opinion was announced. Dorfmueller describes this situation so that he says it happened in the chamber of the judges. From this it is apparent that he came to see us for the purpose of this discussion. Regarding this contact, I was of the following opinion and at earlier occasions, even in 1933 when I was a prosecutor I had already practiced this: I characterized the approximate position that the court possibly might assume, but I refused to have any discussion whatsoever with the prosecutor about this situation, especially in the presence of the two other judges because I was of the opinion that this contact could only have the purpose to orient the prosecutor, but that it would have been untenable for example to give the prosecutor the possibility, so to speak, behind the scene to exert any influence whatsoever on the court, and this attitude of mine is interpreted today as though I had ordered the prosecutor what kind of motion he should make. Of course, the prosecutor - and everybody knew this - in his decision of what motion he wanted to make, in the final analysis, was independent.
And in the case of Doefmueller the issue was that he did not at all remonstrate with me against this practice as such, but that I had been informed that Dorfmueller was, on principle, asking for lesser sentences. That, for example, if he wanted to have eight months in a prison he on principle asked for six months and, in that connection, at that time he apparently, in the rapid exchange of the questions and answers, he stated that, after all, he was free to decide. He could make a motion as he liked to. Whereupon, I told him, of course he could do that. Nobody denied that he had the right. The only question was for how long he would do that and that was something that other people had to say something about. This merely meant to say that if he continued to maintain this basic line of policy he would only achieve that he would be transferred to another section in which he could not impose the difficulties that necessarily resulted from his point of view. A political side of this question I didn't have at all for it would have been a very bad misjudgment to say, because a person is lenient, he is not a National Socialist, and because he was severe, he was a National Socialist, because even the best Nazi could have a lenient attitude, whereas an opponent of National Socialism could have a severe attitude. The whole affair did not have any political coloring at that time.
Q: You said that even at the special court in Nurnberg the law against Poles was applied to cases which involved Poles. What provisions were you thinking of?
A: This question was broached repeatedly, but I did not treat it exhaustively because the questions came to me so directly. Perhaps I may say that this penal decree against Poles was, first of all, and primarily created for the territory of Poland and with us in the Reich it was only stated that it was also applicable to Poles.
Many situations, especially those described in Article I, referred to the conditions in the territory of Poland. I do not recall that in my sphere, under my presidency of the court, or in the case of any one of my deputies, such a case in which Article I occurred at all. But I do not want to say by this that this would not have been possible, because my memory is not that good any more, but I can say this, the cases which occurred as a rule in our court, so to speak, almost without exception was the case in which Article III ... I beg your pardon. It was the case of Article II, Section I, first part. That is to say, II, Section I, first part. There it says: "Poles and Jews will be sentenced too if they violate German criminal laws." Furthermore, III was applicable, and now we have Section 2 of Article III. Hers, in the first sentence, it says: "The death sentence will be pronounced where the law provides for it," and the next sentence that follows this one according to which the death sentence can be pronounced also even if the law does not provide for it, but there are certain reasons which make the offense more serious. This second possibility never occurred in our court either. In effect, according to the substantive legal contents, the prosecution and sentencing occurred on the basis of the German criminal law and the provisions which we quoted from the decree against Poles, for our cases, had no substantive legal contents but the decisive thing here was the German laws. That meant the application of the regulations from this decree against Poles.
THE PRESIDENT: How much longer do you anticipate the direct examination of this witness will take?
DR. KOESSL: I believe that I shall need hardly more than fifteen minutes more.
I wanted on this occasion to ask the Tribunal that if a possibility exists that the cross examination could be started only on Monday. I would be very grateful because the witness, due to the long time that the direct examination took, is not feeling very well. I believe that the prosecution would not have any great objections to this.
THE PRESIDENT: The Tribunal will recess after the direct examination has been completed.
With reference to the defendant Barnickel, is there any report to be made to the Tribunal by his attorney?
DR. DOETZER: Your Honor, I have made efforts to contact the defense counsel of the defendant Barnickel, Dr. Tipp. Unfortunately, I was unsuccessful. I then made inquiries of the General Secretary and it was not known that Dr. Barnickel is sick. I took steps to have Dr. Tipp informed about it. He will probably appear after the noon recess and make the formal application.
THE PRESIDENT: He ss directed to appear at 1:30 this afternoon. We will recess until that hour.
(A recess was taken until 1330 hours, 22 August 1947)
AFTERNOON SESSION
THE MARSHAL: The Tribunal is again in session.
DR. TIPP (Defense Counsel for the defendant Barnickel): Mr. President, I am informed that this morning there was a regrettable misunderstanding. Dr. Barnickel, with your permission, was absent yesterday, but he did not have the permission for this morning. I was told in the prison that he was ill. That is not right either. Fortunately, Dr. Barnickel is in the best of health and the case of Barnickel, as soon as the case Rothaug has boon concluded, can be taken up.
THE PRESIDENT: Yes, we received the same information which was in error on the part of some one in the prison, and you desire that the defendant be excused for the period of this morning, do you not?
DR. TIPP: Yes, Your Honor.
THE PRESIDENT: He is excused as of this morning at 9:30. We welcome him here this afternoon.
DR. KOESSL (Defense Counsel for defendant Rothaug): I ask to be permitted to continue and to conclude my examination.
THE PRESIDENT: You may continue.
OSWALD ROTHAUG - Resumed DIRECT EXAMINATION - Continued
BY DR: KOESSL:
Q Do you know of a case, witness, where you did not take a witness under oath because he was either a Pole or a Jew?
A I do not remember any single case of that kind, but I know that from a certain time on, the legal situation was such that Jews and Poles were not permitted to be taken under oath, but in practice, any such case never occurred with me.
Q Do you happen to remember a case in which any one of your deputies had stricken a Pole, who was supposed to be a witness, from the list of witnesses?
A I cannot remember any case of that kind either with any amount of certainty.
Q Do you have knowledge of any case in your court where Article III, Section 2 of the Penal Decree against Poles and Jews had been applied against a Pole?
A I have answered a question in a different connection to the effect that a case of that kind neither occurred when I personally presided nor any one of my deputies.
Q The Poles who were put to work in Germany -, were they sufficiently warned and were all penal provisions made known to them?
A I was interested to find out whether the people, who from abroad, had been brought to Germany to work, and particularly the Poles for whom a different legislation was introduced, were informed about their situation as far as that was concerned and I found out - I believe that I even cleared up that question during a session with a witness - that the people, when they were brought to Germany, were told about their duties, orally and in two languages, and that they particularly were informed about the consequences according to penal law which they would incur if they did not submit to certain regulations. I passed on a suggestion according to which sentences which had been pronounced should be make known in the camps and at the places of work to these people in order to see to it that they were sufficiently warned and should not get into trouble with the very dangerous legal machinery.
Q Were the sentences in fact announced to them?
AAs far as I found out that was the case because we had no interest to get as many cases as possible before us. Our interest was to have as few cases as possible to deal with.
Q What was the point of view which you expounded in the sessions concerning the duties of the German population?
A In all sessions I used the opportunity to preach, time and again, that, of course, the German population meticulously had to perform its duty towards the Poles as far as their food and quartering were concerned, and in all cases where we saw that the German had given cause to a transgression we rejected that.
Q A few more questions.
In the case of the witness Schosser, that is, when he was heard here, mention was made that his defense counsel asked for a slip which a witness had in his hand during the session, a slip with notations made by his wife about the sermon. Could the defense counsel demand that the witness submit that slip of paper in evidence?
A This is not the way it happened, not entirely. The witness also described it somewhat differently. It was the witness Stubenvoll who, in the Schosser case, was heard as a witness. That witness, in his oral statement, pointed out that immediately after the critical sermon he marked down on a slip of paper, whatever his wife told him when she came home from the sermon, but which he did not have with him during the session. Now, during the session, the defense counsel made the motion that that slip of paper should be submitted in evidence. Since this motion was rejected, it was thought that thereby the defense was being limited. But that obviously was not legally tenable since the witness personally appeared during the trial and as what he knew about that occurrence was told by him personally.
That slip of paper, according to paragraph 250 of the penal code of procedure, could not be introduced in evidence during the trial. That would have been possible only if the witness himself had stated that his memory was somewhat failing and if the witness had asked that he be permitted to use that slip of paper to refresh his memory the slip of paper could have been introduced. The defense counsel, however, had no claim to that slip of paper. I discussed that situation with him, whereupon he withdrew his motion on his own.
Q Your former associate judge, the witness Ostermeier says, in Exhibit 222, that it had occurred to him that you rejected questions he wanted to be put and that in a manner which was quite obvious to the audience and which could have been considered a reprimand. Do you remember any such case?
A Yes, he is referring to the right of the associate judge to put questions, a right which he has towards the witness and the expert witness, but not toward the defendant, but that right to put questions is not exercised in such a manner that an associate judge would ask the presiding judge to put a question, but he has the right, if the witness or the expert is heard, on his own and directly, to put that question and it did occur maybe in two or three cases over a period of six years that Ostermeier, while I questioned a witness, whispered a question into my car. I did not like that method, and it is possible that in one case or another I rebuked him, a thing which could have been done in a more pleasant form than it may have been done, but that certainly was nothing of great importance and it did not restrict the right of the associate, judge to put the question directly on his own.
Q Dorfmueller mentions a case where you threatened a witness by mentioning the name of his Ortsgruppenleiter and his SA leader.
A He doesn't even know any more where, when and in what connection that is supposed to have occurred. I remember it very well. That was a session in Cham. In this case a man, while he was drunk, made political speeches for hours and the man whom I rebuked had listened to these statements for a long time without stopping it. He was also the person who denounced him. Unintentionally he incriminated the man with the local police and since he recognized that might have disagreeable consequences for him in his locality, he sort of withdrew some of his accusations during the main trial.
Quite apart from his examination in the trial, I put to him that his behavior as far as his character was concerned was very peculiar in this connection. I also told him that since he was a Party member and a member of the SA, I had a mind to notify his Ortsgruppenleiter and his SA Fuehrer about that matter, but that of course did not happen. Thus, it was not a question of trying to influence the statements made by the witness, but I only gave him a piece of my mind about his behavior in general, and the man who was indicted was acquitted in that session.
Q. Ostermeier says that he once was shown by you a secret decision according to which disciplinary measures can also be taken concerning a judge's decision. Did you have in your possession such a secret decision, and did you show it to Ostermeier?
A. That description is characteristic of the witness. Never, unless one could look into the secret vaults of the Administration of Justice, was there any such decision. If there had been any such decision, I as a judge could not be in possession of it. Consequently, I could not possibly have shown any such decision to Ostermeier; but these people are just trying to describe their professional wark as having been under duress, but that was not the case with us judges. There were disagreeable matters, particularly in consequence of the Fuehrer's speech, but in the final analysis one was not only a judge but also a man who had his own convictions.
Q. You were asked by one of the judges whether or not a wrong statement made by a witness not under oath could have be punished. Will you please briefly explain whether a person could be punished for having made a statement when not under oath?
A. That was an error on my part because since the 29th May 1943, the penal code had a provision, 156-a; according to that a statement made not under oath is also punishable, whether made by a witness or an expert witness; but that decree is of the 29th May 1943.
THE PRESIDENT: Isn't there a similar provision in the law against Poles and Jews?
A. No, that applies only to Germans.
THE PRESIDENT: I say: Is there not a similar provision in the law against poles and Jews?
A. Yes.
THE PRESIDENT: I remember it.
A. Yes, but the motives were different ones.
BY DR. KOESSL:
Q. In the case of Seiler, you opposed to take her under oath?
A. I only wanted to say here that up to the time, the first May 1943, the period during which I was a judge, during that period there was no explicit provision to punish a wrong statement made not under oath.
Q. But the statement which was not made under oath could be punishable from a different point of view?
A. It could possibly be considered aiding and abetting, but that was to be eliminated in the case of Seiler because there it was not intended to raise charges for abetting.
Q. In the case of Seiler you opposed the oath. Was that a matter of your principle attitude to the oath?
A. I always was opposed to any form of an oath, and that because the oath in my-
THE PRESIDENT: You gave us your reasons for that before.
DR. KOESSL: Very well.
BY DR. DOESSL:
Q. Did you ever pronounce a sentence as presiding judge which did not obtain the necessary majority during the deliberation?
THE PRESIDENT: Answer yes or no.
A. No.
DR. KOESSL: Thank you, I have no further questions.
THE PRESIDENT: The Tribunal will recess until Monday morning at 9:30.
(The Tribunal recessed at 1352 hours, 22 August 1947, until 0930 hours 25 August 1947.)
Official transcript of American Military Tribunal III in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 25 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 defendant Rothenberger who is absent due to illness.
THE PRESIDENT: Is his counsel president? The court will grant the defendant Rothenberger a temporary excuse pending a report as to the causes of his absence. The Tribunal would welcome a report from his counsel as to whether the defendant desires to be excused for absence, You may proceed with the case.
OSWALD ROTHAUG -- Resumed DIRECT EXAMINATION -- Continued
DR. SCHUBERT (Counsel for the defendant Oeschey): May it please the Court, will you permit me to put a few questions.
BY DR. SCHUBERT:
Q. Dr. Rothaug, on the first of January 1939, the defendant Oeschey came to Nurnberg from Aschaffenburg. If I understood you correctly, at that time you were Gaugruppenwalter for judges and prosecutors?
A. Yes, I was.
Q. In that capacity, did you hear anything about the reasons for Oeschey's transfer from Aschaffenburg to Nurnberg?
A. Oeschey's transfer from Aschaffenburg to Nurnberg I failed to notice. It was only later that I heard that Oeschey was one of the judges at Nurnberg.
Q. When did you make Oeschey's acquaintance?
A. I made Oeschey's acquaintance first before he was assigned to my sphere of work. At that time, my attention had been drawn to the fact that he was a particularly able judge, and I needed such a judge for my work; and I therefore suggested to the President of the District Court of Appeal to assign Oeschey to my sphere of work, and that was how I came to meet Oeschey.
Q. Can you remember when Oeschey joined you and your work?
A. I cannot remember for certain. I think it was quite sometime after the first of January 1939, and I assume that it must have been before the outbreak of war.
Q. Dr. Rothaug, did the Gau Leadership, Denzler, or somebody else, work for Oeschey's transfer to Nurnberg?
A. I believe that is quite out of the question because otherwise I would have heard something about it that Oeschey was to be transferred to Nurnberg through the Gauleiter or the Gau Administrator, for in that case there would have been special reasons; but as far as I know there can't have been such special reasons for before the outbreak of the war, in our own Gau, we had enough personnel. According to my knowledge of conditions, Oeschey when he applied for a transfer to Nurnberg was quite unknown in Nurnberg. Evidently it was a case of a transfer just as any other transfer which was due to purely personal wishes.
Q. Dr. Rothaug, towards the end of the war you were Reich Public Prosecutor with the Peoples' Court, and if I understood you correctly, you dealt with cases of undermining Military morale?
A. Yes.
Q. In February 1945, the Senior Public Prosecutor in Nurnberg sent the Montgelas files to the Chief Reich Prosecutor in Berlin and that was a case of undermining military morale. Did you ever see the files?
A. No; and I would like to ask you, when were those files dispatched?
Q. It must have been during the second half of February 1945.
A. I never saw those files. But I should have seen them, as far as I can judge conditions, if the Reich Prosecution had received them. The reason is this: for most of the time during which I dealt with cases of undermining military morale, I did not deal with all such cases but only with half of them; but I have already pointed out that on account of the fact that transportation in Germany was badly wrecked, at the end of 1944 or the beginning of 1945, the new cases which came to us had gone down almost to naught so that at the beginning of February, I took care of the whole department. If during that time the Montgelas files had arrived, I am certain I would remember today because it was a case from Nurnberg, and for that reason alone it would have interested me particularly, just as, for example, the von Praun case which I still remember. The von Praun case also had come from Nurnberg to the Reich Prosecution. All new cases were shown to me without exception before they were dealt with. In other words, if the Montgelas files had reached Berlin in the second half of February and were actually received there, I would have heard about it; but the transportation situation was such that we hardly received any new files.
Q. Thank you, Dr. Rothaug, that explains the matter. I would like to ask you a final question, and I would like to refer to the law concerning the Poles and Jews. I believe that during the examination, one point remained unexplained. You were asked, Dr. Rothaug, whether Poles who were inside Germany, that is to say, for example, at Nurnberg, came before a court, were allowed to reject a judge as biased; and I remember that you answered no, and that you said that a Pole, that is to say, before the Special Court at Nurnberg, was not permitted to reject a German judge as being biased. To freshen your memory, I am putting to you the text of the law concerning Poles. Please have a look at Figure 14, paragraph 1. Is it correct that according to that, the provisions of the law concerning the procedure were not applicable in the Altreich?
A. In reply to that question, I should like to make the general statement that formerly in that law on the provisions dealing with a sentence of law interested me more deeply because as concerns procedure we also proceeded against Poles and other foreigners in the same manner as we proceeded against Germans, and those special provisions didn't play any part with us. The provisions dealing with procedure concerning that point did not apply in the Reich according to these provisions.
Q. Dr. Rothaug, if I am understanding you correctly now, this is the way it is. In the Old Reich a Pole was allowed to reject a German judge?
A. Yes, he was.
Q. And, Dr. Rothaug, a Pole could be taken under oath as a witness before a court, is that correct?
A. Yes, according to this, I would assume so.
Q. Would you please return the text to me. Thank you.
DR. SCHUBERT: May it please the Court, I have finished.
THE PRESIDENT: I don't thoroughly understand your answers. Let me -
A. I said -
THE PRESIDENT: Let me ask you first. Suppose that a Jew lived in the former Polish state on the first of September 1939, and thereafter came into the Altreich. You said the law against Poles would not apply to him?
A. Yes, in that case the law did apply to him.
THE PRESIDENT: Yes.
A. The question was whether inside the Altreich the provisions concerning procedure were also to be applied against Poles or whether they were not to be applied, and according to the provisions which have just been put to me, I am inclined to assume that those provisions, the provisions concerning procedure, were not applied to Poles whose cases were tried in the Reich; but that the German provisions applied. I myself however did not have any practical experience in that sphere because such a case did not occur with me.
THE PRESIDENT: Now, another question, please. Do you concede that the substantive provisions of the law against Poles and Jews applied to Poles and Jews in the Altreich. In other words, Sections 1 to 4 of that law?
A. Yes, the substantive provisions did apply to Poles and Jews who on the first of September 1939 had their permanent residence within the territory of Poland and who later came to the Reich.