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.
THE PRESIDENT: What do you find in the law, sections 1 to 4, which limits the applicability of that law to Poles and Jews who had been in Poland on the first of September 1939? In other words, perhaps I can make the question simpler. Did the law, sections 1 to 4, apply to Poles or Jews who were in the Altrich on 1 September 1939?
A. No.
THE PRESIDENT: And what do you find in the statute that says so, except in the title?
A. Unfortunately, I haven't got the text with me.
DR. SCHUBERT: May I hand the text to the witness?
A. That is evident from the section which is headed, "Extension of the Sphere in which the Law Applies." Roman numero XIV. There it states: "The provisions under Roman numeral 1 and 4 of this decree apply also to Poles and Jews who on the first of September 1939 were resident in the territory of the former Polish State or who were staying there permanently and who committed the offense in an area of the German Reich other than the incorporated eastern territories." From that, it is evident that the substantive legal provisions applied to Poles and Jews as well, but only to those Poles and Jews who on the 1st of September 1939 were resident within this territory of the State of Poland.
THE PRESIDENT: That's all. Does any other defense counsel desire to make this witness his own? If not, you may proceed with the cross examination.
CROSS EXAMINATION BY MR. WOLLEYHAN:
Q. Dr. Rothaug, with respect to your decision in the case Grasser, which is Exhibit 139, now in evidence, you recollect that from the evidence and from your discussion it appears that Grasser was indicted under the Malicious Acts Law. A day and a half before the trial, you decided that he could also be convicted under the law against Public Enemies, and you appointed his defense counsel on that day.
You arrived at that decision, as you stated, despite the fact that the Ministry of Justice had ordered prosecution for the lesser offense and despite the opinion of the prosecutor in Munich that it was the lesser offense, and despite efforts made by Dr. Doebig to dissuade you from applying the more severe offense. I ask you, Dr. Rothaug, was your theory in the Grasser case in applying the more severe Public Enemy Law, authorizing the death penalty, that Grasser much more than merely dispairaging the Nazi State and Party had by his utterances made his friends less enthusiastic about Germany's waging the war? Was that your theory?
A. I didn't understand that last sentence. Would you mind repeating it please?
Q. Was your theory in the Grasser case in sentencing the man to death for violating the Public Enemy Law even though he had not been indicted for that offense because you felt that he had made Germany's waging of the war more difficult?
A. Above all, the conditions, the prerequisites on which you base yourself in asking the question are not altogether correct, but I have already pointed that out during my direct examination; what happened was not that the case as the senior public prosecutor passed it on to Nurnberg was the basis of the indictment which was filed with me. From the Grasser files, I was not able to establish in what form the Reich Ministry of Justice in this particular case would instruct the prosecution for the reason that in those files one page, page 50 was missing, and that important decision by the Ministry of Justice was missing in the files. It happened repeatedly that the Ministry, for example -
Q. Dr. Rothaug, you are getting apart from the question. The case record and notes of the trial speak for themselves. They are in evidence. I am asking you now again was your theory in sentencing Grasser to death as a public enemy because you felt that by his utterances he had made his fellow workers less enthusiastic about helping Germany wage the war?
Court No. III, Case No. 3.
DP. KOESSL: Just a moment. May it please the Court, the witness has replied altogether within the framework of the question, and it is impossible to answer the question which the Prosecutor put to him unless the basic question which the witness broached is properly explained, it is the indictment is of decisive importance.
THE PRESIDENT: Your objection is overruled. Go on with the cross examination.
Q Dr. Pothaug, if you want to, you could simply answer that question yes or no.
A But I don't want to.
Q I didn't think you did.
A By answering this question, I also don't want to concede that all what was stated by the introduction of the question was correct. My judgment, my opinion, at the time when I considered the offense to be a more grave offense than had been assumed in the indictment, to begin with was this: the defendant when he committed his offense, in consideration of the circumstances which attended his remarks, that is to say inside armament plants where people were heavily over-worker, and in consideration of the person of fee defendant, who, as we know before 1933 had been an active communist who had continued his communist activities after 1933; who, because of that had been sentenced for high treason; who, after he had finished serving his term had been transferred to a concentration camp; and, finally, was discharged from the concentration camp and was rehabilitated because he had promised to conduct himself properly, my view was and that was on account of the suspicions that this man in considering all the points which I have mentioned here, when he made those remarks, was not merely conscious that he was making the derogatory remarks, but was aware that he affected the attitude of the people working in an armament plant and that he was exploiting their weariness to make remarks which would undermine their morale. That was the first consideration which guided me. Then I considered the question whether Article 4 of the public enemy law was applicable.
Court No. III, Case No. 3.
The question which the prosecutor has just broached, the question of undermining military morale, that, if one refers to the aims of the offender lies in his direction: That at least in part it was the intention of the offender to undermine confidence in the conduct of the war and the chances of winning the war in his surroundings. Those subjective facts were such of a malicious acts law case, but it was the psychological situation that reached into that field, and that was what caused me to take a graver view of the offense; but the opinion which was finally decisive, because the law for undermining military morale, even for the ordinary case, considers the death sentence as a rule. It is important and I pointed that out during my direct examination that that point of view concerning the undermining of military morale, to begin with, after I had first examined the files -
Q Dr. Pothaug -- as you said, you pointed all this out before in your direct examination. I believe that at some length you have answered my question about whether or not the relations to the war was the factor of the judgment in the Grasser case. I now ask you if you think it was justifiable -
A But -
Q Dr. Pothaug, may I ask you the question, please. I now ask you if you thought it was justifiable to sentence a man to death for a crime for which he had not been indicted, and to defend himself against which he had a defense counsel appointed for him a day and a half before the trial.
A Unfortunately because the second question was put so soon after the first question to me, unfortunately because of that, I haven't had an opportunity to answer the first question exactly, and I haven't had a chance to explain why the point of view of the undermining of military law entered into the problem at all. I don't know whether the Tribunal would like me to make some remarks on that subject.
MP. WOOLEYHAN: Your Honors, may I ask for an instruction that the witness make some attempt to be responsive?
Court No. III, Case No. 3.
THE PRESIDENT: The witness should learn, even at this late date, to answer with some conciseness and brevity the questions that are put to him, bearing in mind what he has already said in his direct examination. Now, this was a short question, and I think you can answer it briefly without being exhaustive.
A The judgment from the point of view of the undermining of military morale law, that judgment was based upon the basis which was legally perfectly correct. There are no faults in the proceedings according to the legal situation. In Germany the same facts on which the indictment was based, those same facts also supported the trial, and the only thing that was new was the legal question which had turned up at the trial as to whether the facts were to be judged not only from the point of view of the malicious acts law and the public enemy law, but also by the paragraph of the law against undermining of military morale. The fact that I deviated from the original legal opinion, or if I supplemented the original legal opinion by locking at it from a wider angle, as it was the case here, if I did all that, then under the code of procedure I was merely under obligation to inform the defendant that there was a possibility that a new legal point of view might be applied, and to tell him so that he would be able concerning the new legal situation which might arise to consult with his defense counsel. It is evident from the records that the defendant was instructed accordingly, and he was instructed before the public prosecutor and the defense counsel had given their view in their final pleas. I believe that that is what you wanted to know.
Q And you said just now, I believe, that on the same facts upon which the prosecutor indicted Grasser, for the minor crime of malicious acts utterances, that you decided that he should be sentenced to death; is that correct?
A The original indictment was made under the malicious acts law. That legal specification did not bind the court in any way, but the court was under obligation if in its view a more grave specification Court No. III, Case No. 3.should be made, to adopt that point of view, and to apply the more grave measures.
On the other hand the court was also able to deviate from the more serious specification of the prosecution and give way to a more lenient view. The judge is not bound in one single point by the legal judgment of any one event; he is not bound in that respect by the judgment of the prosecution.
THE PRESIDENT: Let me ask you a question. Can the judge convict a man for a crime which is not described in the indictment under your procedure? Just answer that question. Can he or can he not?
A Naturally he cannot do that.
THE PRESIDENT: That is all.
A He must not bring in new facts, but that was not the question in this case.
THF PRESIDENT: I understood your other answer.
Q Dr. Pothaug, with regard to the case Schlamminger, you were discussing the testimony of the witness Ostermeier, in which he charged you with re-writing his opinions in a more political vein. You stated that you knew your style and Ostermeir's style, and that you could say with almost absolute certainty that the opinion in the Schlamminger case, which we had before us that day, in its main points was a product written by Ostermeier. I show you a paper. Does that appear to be the handwritten draft of the Schlamminger opinion, from which the one -
A That is the handwritten draft.
Q I ask you if you find there page after page completely lined out and re-written in your own handwriting. I ask you if you find ten of fifteen pages at the end -- completely -written in your handwriting.
A If I make a rough guess, I guess I think that it is approximately fifty-fifty -- the statements which I put down here by way of correction and amendment; perhaps they are in excess of the others.
THE PRESIDENT: That is all; you have answered the question.
Q Dr. Pothaug, in addition to other cases involving Polish laborers brought to Germany for work, some of whom at one time or another Court No. III, Case No. 3.turned up in your courtroom.
I ask you if you remember the case of Murzyn, M-u-r-z-y-n, which occurred in the Upper Palatinate. Do you remember presiding over this trial of a Pole who had found some deonators in a field, such as are used to blow out stumps, and had kept them with his belongings? Do you remember sentencing that Pole to death on the assumption that he intended to commit some undefined act of sabotage?
A I do not remember the case, but it is possible that the case was tried when I was presiding judge, but this case was not a subject of the direct examination.
Caurt III Case III
THE PRESIDENT: The Tribunal will take care of that problem. You may just answer the questions.
BY MR. WOOLEYHAN:
Q. Further, outside of your conception of the scape of the direct examination, I ask you if you remember the case the pole, Pawula, and four other poles, tried by,you in the fall of 1942.
DR. DOESS: Hay it please the Court, I do net know to what extent the Prosecution is to be allowed to introduce new cases, and by doing so attacking the jurisdiction of the special court Nurnberg concerning Polish cases. I introduced cases in order to show the opposite tendency, and the Tribunal did not consider that that is a sufficient reason to allow me to introduce new cases. I believe, therefore, that introducing New Polich cases on the part of the Prosecution should also not be posibel.
THE PRESIDENT: Your objection is overruled. The idstinction is rather a clear one. The introduction of evidence against the charge that some other case was improperly tried; and this is proper cross examination in view of the statements made by the defendant in his direct examination.
BY. MR. WOOLEYHAN:
Q. Do you remember, Dr. Rothaug, in this case of Pawula and four other eastern nationals, that they were housed in a labor camp of foreign workers, and that they had stole clothing and sold the clothing to other polish workers; and that both the Poles who had stolen the clothing, and the receivers of the clothing, were sentenced to death in 1942?
A. I don't remember that case; I cannot remember it at all, and the facts of that ease I don't know anything about them.
Q. Dr. Rothaug, do you remember about this same time in 1942 a case before you of the Pole Salisch, who had been a prisoner in the headquarters of the Nurnberg police, and during an airraid he had escaped and stolen a watch and other small luggage form the police station; after which you sentenced him to death as a plunderer; do you remember that case?
A. I remember that case quite vaguely; as to whether a Pole or any foreigner was involved in that case, that I doubt. The way I remember the case, it was not a foreigner who was the offender, but I might be wrong. At any rate, what happened was this: After a heavy airraid, when bombs had been dropped on the police prison in Nurnberg, at police headquarters, the doors of the cells burst open, the offender used his chance and immediately went to look over the badly destroyed prison for things he might steal, and in the course of doing so he got into the room where the possessions of the prisoners were kept, and immediately he started to steal. As to the legal point of view by which that man was sentenced at that time, I don't know; but according to the nature of his offense, it was altogether possible that he you have been sentenced to death for plundering, for the death sentence is mandatory for plundering.
MR. WOOLEYHAN: May it please the Court, all the foregoing cases involving roles, just distributed, were taken from Document NG-932. They are a sworn affidavit of Dr. Heinz Hoffmann, who was associate judge at the Nurnberg-Special Court from mid 1940 until the end. The Prosecution offers as Exhibit 556 that document.
THE PRESIDENT: The exhibit is received.
BY MR. WOOLEYHAN:
Q. Dr. Rothaug, with respect to your enforcement of the malicious attack law, would you say tn t it was a fair statement of you purpose in enforcing that law that violations of it endangered the public peace?
A. I assume when you speak of malicious acts decrees, you are referring to the malicious acts law. It was the aim of the maliciuos acts law to protect not only the public peace, but to protect the confidence of the population in their political leaders. I think that is the aim of the malicious acts lsaw, but the maliciuos acts law and this is important, does not demand, does not stipulate that the will of the offender should be aimed at destroying that confidence, but it is sufficient for the offender to be aware that by making a certain statement he might undermine such confidence.
The intention of the offender to destroy that confidence, if the offender has that intention, then that actually is a crime of the nature of high treason. For example, his intention is to make the population waver -- to make them doubt as to what will be the outcome of the war inner aspect which is decisive for the legal point of view which in the last analysis, will be decisive.
Q. In the Schosser case-- our clergyman from Vilseck. Did it take you thirteen months to make up your mind that Father Schosser had undermined the people's confidence in their political leaders?
A. That did not take me thirteen months, but it was quite a different thing, as with the documents at hand I nave proved quite clearly during my direct examination that, not I out the public prosecutor first got hold of that case, and in August, 1942 the case came to me in the form of an indictment.