This is not the only case which was important in that connection.
THE PRESIDENT: Dr. Rothaug, your answer doesn't touch the question which was asked you at all. Your answer doesn't affect the question which was asked you at all.
MR. WOOLEYHAN: Quite apart from what you thought........
THE WITNESS: It does touch the question because there are also facts which are considered public knowledge or convictions which can be considered as known to the courts.
THE PRESIDENT: Ask the question again.
MR. WOOLEYHAN: Dr. Pothaug, did you consider a letter written to you by the commander of a concentration camp, denying that any abuses took place in his camp, as competent evidence, barring any other showing, to convict a man of stating that there were such abuses?
THE WITNESS: Yes, that is what counts. What counts is how the...
THE PRESIDENT (Interrupting) Just a minute. The question is, would you consider such a letter competent evidence on the trial of the person who had made charges that abuses occurred? I don't understand your answer yet. Would it be competent evidence, in your view? This letter from the camp commander.
THE WITNESS: That question cannot be answered by "yes" or "no". It depends on the circumstances of the case. I cannot say that I considered information which I received true or untrue, but I do not believe that that letter was at all introduced in evidence in that trial.
THE PRESIDENT: The question is not whether it was introduced. The question is, whether such a letter would be considered by you, in your procedure and your practice, to be evidence which should be considered by the court? Now, if you can't answer that "yes" or "no" the Tribunal would be very much surprised in view of your high degree of mentality.
THE WITNESS: That letter could not be used in evidence.
THE PRESIDENT: All right. There is your answer.
Court No. III, Case No. 3.
BY MR. WOOLEYHAN:
Q That being the case, Dr. Rothaug, how do you explain how either Mrs. Heubeck or her son was convicted by the Nurnberg special court ?
A For me, it was decisive in this case what the son, during the first trial, his trial, had stated himself before the special court in Nurnberg. I am referring to the judgment of the 24th of September, 1941. That verdict was legally admissible in evidence in the new trial and that sentence was introduced in the new trial, as can be seen from the transcript of the 26th of January, 1942, by being read.
THE PRESIDENT: You say it was a new trial? Was the first trial of the son only?
THE WITNESS: Yes.
THE PRESIDENT: Was the second trial of the mother only?
THE WITNESS: Yes, Mr. President. There were two separate trials and the result of the first trial, as far as it was contained in the opinion, could be used in evidence in the other trial, and that apparently was done.
MP. WOOLEYHAN: Your Honor, the prosecution, without further discussion, offers extracts from the Heubeck Case, for identification only, as Exhibit 559, NG number to be assigned when offered.
THE PRESIDENT: Let it be marked.
BY MR. WOOLEYHAN:
Q Dr. Pothaug, if a German national committed the same acts as that Pole, Lopata, did, he would be tried under the German Code of Criminal Procedure for simple assault by act, under Section 185, would he not?
A No, one could not say that. It depends on the circumstances of the case.
Q I'm giving you the circumstances of the case. They are precisely the same as the Lopata case, except the defendant is a German national. Would he or would he not be tried for simple assault, under Section 185 of the Code of Criminal Procedure?
Court No. III, Case No. 3.
A No, if he took advantage of the war time conditions, then, also in this case, the more severe regulation could be applied.
Q Could be applied, you say. That is personal conviction, because is it not true that, at the first trial of Lopata, he was tried for simple assault and sentenced to two years like any other German national, and that you later made up your mind that that had some relation to the war effort and you tried him over again and you sentenced him to death? In brief, isn't that the situation?
A Well, it is overlooked that that opinion was not mine, but it was based on a principle which the Reich Supreme Court had evolved and which gave pause for the new trial.
Q Now, are you saying then that what the Reich Supreme Court said was binding upon you in this case?
A The legal principle, as such, was binding, yes.
Q Well, if that is the case, apparently the Reich Supreme Court was in a more authoritative position than the Reich administration of Justice because, in the Grasser Case, you ignored a directive of the Reich Ministry of Justice to try Grasser for malicious acts, and sentenced him to death as a public enemy. Now, if you ignore a directive of the Ministry of Justice, why then are you bound by the findings of a court which is under the jurisdiction of the Reich Ministry of Justice?
A: That is quite clear. The Reich Ministry of Justice, according to paragraph 1 of the Judicar Act, cannot give any instructions to me as a judge; whereas the Supreme Court of the German Reich, that is according to the law -- I could not quote the article at the moment -- specifically had authority to instruct me that in this case the following legal principle has to be applied, and too in evaluating the facts I had to apply it. I was not forced to establish different facts or different circumstances, but I was only directed to examine the question to apply certain legal principles which myself I could not modify.
Q: What did the Reich Supreme Court direct you to do, did they direct you to try that case over and sentence the man to death, or did they direct you to try that case over and find a heavier sentence, which one was it?
A: It was very simple. Of course, the Reich Supreme Court could not pass the decision to the effect that in case that legal principle had to be applied. If that had been doen, the man had to be sentenced to death. If the Reich Supreme Court would have had that in mind, it would not have been necessary to transfer the case to us, but as in every other case, it could have made the decision itself. Because it was rather like this: The Supreme Court stated according to the findings of the local court certain circumstances had made it rather advisable to examine the question as to whether the defendant had taken advantage of extraordinary circumstances by the war, and the Reich Supreme Court mentions as circumstances of that nature that the number of men in the country was reduced that it also was publicly known that the transgressions which occurred were frequently based on the fact that the Poles considered themselves indispensible and that they therefore took liberties to the extreme.
THE PRESIDENT: I should -
A: As far as I remember another point of view was finished.
THE PRESIDENT: I should like your professional opinion. Was the nullity plea involved in the Lopata case. I don't remember at the moment.
MR. WOOLEYHAN: Yes, Your Honor.
THE PRESIDENT: What is your best, Honest judgment as to whether or not if Lopata had been a racial German there would have been a nullity plea and a direction from the Supreme Court to re-try the case? What is your honest opinion about that?
A: Mr. President, both cases cannot be compared with each other because the Reich Supreme Court in this case stated its opinion on the basis that it was a Pole.
THE PRESIDENT: Now, I am asking if Lopata had been a racial German, all other facts being the same as they were in the Lopata case, is it your judgment that the nullity pica would have been invoked and that the Supreme Court would have ordered the case sent back to you for another trial? I should like your opinion on that.
A: Mr. President, this question is very interesting, but I cannot even imagine that possibility, even theoretically, because the very elements which are of the greatest importance could not be applied to a German.
THE PRESIDENT: That's all I wanted to know.
MR. WOOLEYHAN: May it please the Court, at the present juncture, I strike a natural point of cleavage in my question, may I ask an adjournment?
THE PRESIDENT: In a moment. I should like to ask another question or two which comes to mind.
I have before me Exhibit 478, a progress report of the attorney general of the District Court of Appeals at Nurnberg to the Reich Ministry of Justice.
That report mentions cases A to G inclusive in which the Special Court of Nurnberg condemned certain persons to death. All but two of those were sentenced on the 26th of June 1942. What I am interested in knowing is whether you took part in those trials on that date. The defendants' names, I can't pronounce probably. (Spelling) M-i-l-c-e, Eugen; Valerian Dombrowny; Antoni Janas; do you remember any of those cases? Johann Dareis?
A No, I do not remember them -- one moment, are these cases connected?
THE PRESIDENT: No, no separate cases, all sentenced to death on the 26th of June.
A I have tried to recall that, but I do not remember.
THE PRESIDENT: Were you trying cases in the Special Court at that time, 26 June 1942?
A It is possible, maybe. All these questions could be answered if the session diary could be found.
THE PRESIDENT: I understand they are not to be found. Do you remember the case of (spelling) P-i-o-t-r Skalka, sentence to death on the 26th of June?
A No, I don't.
THE PRESIDENT: You do not. The record shows that he was sentenced for a crime according to the ordinanceeconcerning Poles and Jews as amended. You don't know anything about that case?
A No, no.
THE PRESIDENT: The other question relates to one which I propounded to your counsel. Another progress report, Exhibit 478, shows that persons were sentenced by the Special Court of Nurnberg to death because of a crime according to Article 2 of the Ordinance for the protection of the people. Now, which of the ordinance or statutes with which we have been dealing does that refer to?
There are quite a number of them. The only report is that they were sentenced according to the ordinance for the protection of the people. Katzenberger was also sentenced according to that.
A Mr. President, I believe that this is concerned with the so-called decree against public enemies, not the decree for the protection of law and order; and that decree, Article 2, 4, and also 3, are of certain importance, also Article 1, which deals with looting, as far as I remember.
THE PRESIDENT: Then it is your idea that those sentences were pursuant to the public enemy law, commonly called the Parasite Law, the 5/7/1939?
A Yes, if it says paragraph 2 of the Public Enemy Decree, then it can only refer to that.
THE PRESIDENT: No, it says that ordinance for the protection of the people. I am merely trying to identify what law was meant by that short description.
A The decree for the protection of the people?
THE PRESIDENT: Yes. The men were sentenced to death under that statute.
A That can only refer to a different decree than the Public Enemy Decree. There is a law for the protection -
THE PRESIDENT: Would it be the German Blood and Honor?
A But, this afternoon, I can go back and explain that question. I have all these laws.
THE PRESIDENT: You understand my problem is merely to identify what statute was meant by this peculiar description here in the progress report.
A Yes, I understand that, Your Honor.
MR. WOOLEYHAN: May I make a suggestion?
THE PRESIDENT: Yes, please do.
MR. WOOLEYHAN: My analyst states in his opinion he has also picked that up, it is an error in translation for the Public Enemy Law, or the Parasite Law.
THE PRESIDENT: Thank you, we will recess until 1:30 this afternoon.
(The Tribunal recessed until 1330 hours, 25 August 1947.)
AFTERNOON SESSION (The Tribunal reconvened at 1330 hours, 25 August 1947)
THE MARSHAL: The Tribunal is again in session.
OSWALD ROTHAUG - Resumed CROSS-EXAMINATION - Continued DR. KOESSL: May it please the Court, in Exhibit 478 there are among the cases which were tried before the Special Court at Nurnberg, on page 6 the case of Stock and Milce are mentioned. In those two cases, the law against Public Enemies was applied. It is on page 6 of Exhibit 478. Those are the two cases which Your Honor mentioned. They are the Stock nad Milce cases, and in those two cases the law against Public Enemies was applied. In the case of Dombrowny the law against violent criminals was applied.
THE PRESIDENT: How about Skalka, the next one?
DR. KOESSL: In the Skalka case the law against Poles and Jews was was applied.
THE PRESIDENT: And who was the judge in that case?
DR. KOESSL: I was not able to dinf out, Your Honor. In the Janas case the law against violent criminals was applied, and in the Gareis case, it was the economic war-time law which was applied.
THE PRESIDENT: Everything you have told us appears on the fact of the Exhibit.
DR. KOESSL: But, Your Honor, you were in doubt as to whether a translation mistake might not have occurred.
THE PRESIDENT: My question with reference to that matter relates to page 11, "Special Court of Nurnberg condemned to death the following persons", and then it refers to the law for the protection of the people Among the defendants named was Katzenberger, Kastl, Hupperts, Copilek.
DR. KOESSL: Yes.
THE PRESIDENT: And others. I understand that refers to the law with reference to the Malicious Acts -- the Public Enemies, I mean to say, the Public Enemy Law.
I think my question has been answered.
DR. KOESSL: Yes. Katzenberger was sentenced under the law Against Public Enemies.
THE PRESIDENT: I was merely trying to find out what law was referred to by this unusual title, "The Ordinance for the Protection of the People" which does not appear as a title of any statutes which have been introduced. I think it has been clarified completely to my satisfaction, and we are not further concerned with it.
BY MR. WOOLEYHAN:
Q.- As we know, Dr. Rothaug, from the evidence already submitted and the testimony of the witness Groben and your testimony last week, we know that in the file in the Katzenberger case was a finding prepared by investigating judge Groben, that in his official opinion there was insufficient evidence to detain Katzenberger and that he intended to turn Katzenberger loose. You admit, you have admitted, that you made efforts to have this finding of Groben's removed from the case file before trial. You denied, however, that you asked Groben directly to do this. Whom did you ask directly to remove Groben's finding from the file?
A.- The matter was discussed with me and that wasn't on account of my initiative, out that was the result of a conversation between the public prosecutor Markl who was competent in that case and myself. He was of the opinion that document was a reason why the files were not immediately submitted to me as should have happened in accordance with the law, but that on account of mishandling the case there had been a delay of about three weeks.
And he believed that that might be the reason why Groben might be subjected to criticism of some kind from the higher authorities. He asked me whether I believed whether that superfluous document might be attached to the inter-office files. I said that in itself was admissible, and that is what happened. In the court files a so-called missing page, a note is entered that says sheet so-and-so has been put with the inter-office files, but I stated expressly that we would only do that if Groben agreed and because around about that time a colleague of Groben's, another investigating judge whose name was Ankenbrand, came to all on me for some reason or other. I discussed the matter with Ankenbrand, too, and asked him to explain my views to Groben. Later, I was told that Groben was not in favor of filing that document with the inter-office files and that settled the matter as far as I was concerned and no longer bothered about it.
Q. How, Dr. Rothaug, thus far are we to understand that you asked Dr. Ankenbrand to remove Groben's report from the files. Did you ask Ankenbrand to remove it?
A. I did not ask him to remove the page, but I merely told him what my opinion was so as to ask him whether he agreed. I personaly at that time was not concerned with the matter, for at that time those were the files of the prosecution because at that time it was not pending with me. It was just purely a friendly matter.
THE PRESIDENT: Just a minute. You merely told him what your opinion was. Did you state your opinion as to the propriety of the removal of the paper from the files?
A. I told him that my view concerning the question which the prosecution had put to me was that in itself there would be no misgivings or no doubts if this file in the interest of Groben were removed and put with the inter-office file. No harm could come to anybody by doing that.
BY MR. WOOLEYHAN:
Q. Suppose I told you the following. Suppose I told you that Dr. Ankenbrand says that in Groben's absence, Ankenbrand deputized for him, that you sent for Ankenbrand one day and told Ankenbrand that he should withdraw Groben's statement from the files.
If I told you that Ankenbrand is of that opinion, what would you say?
A. If that is the account that Ankenbrand has given of the occurrence, I would say that was not what actually can have happened because those files were the files of the prosecution, and consequently, Ankenbrand would have been unable to remove anything from the files. We were only concerned with the question as to whether we should remove the file and put it with the files of the prosecution. We were not concerned with the question whether we would remove that file altogether. If Ankenbrand has given a different account of the matter, then he is mistaken.
MR. WOOLEYHAN: As prosecution Exhibit 560, we offer Document 1547, which is the sworn affidavit of Dr. Ankenbrand describing this entire situation.
THE PRESIDENT: Exhibit 560?
MR. WOOLEYHAN: Yes, Your Honor.
BY MR. WOOLEYHAN:
Q. Dr. Rothaug, are you aware that Section 348 of the German Code of Criminal procedure -
THE PRESIDENT: The Exhibit is received.
MR. WOOLEYHAN: Thank you, Your Honor.
BY MR. WOOLEYHAN:
Q. Are you aware that Section 348 of the German Code of Criminal procedure makes it a crime to even attempt to intentionally destroy, remove, falsify, transfer, or damage contents of official files?
A I am very well acquainted with that legal provision, but just because I am so well acquainted with it, I can hardly be expected to have asked another official whom I didn't know very well to have placed myself into the hands of another official whom I didn't know very well. A case which might have come under Article 348 of the criminal code did not exist in this case, neither objectively or subjectively.
Q The witness Groben says that it was his understanding that you wanted him to remove his finding from the file; do you deny that?
A Yes, I deny that; that was not in question.
Q The affiant Ankenbrand states on oath that you asked him to remove Groben's statement from the file; do you deny that?
A Yes, I deny that because that was not at stake; what we were concerned with was whether that file was to be placed with the inter-office files of the prosecution or not. Concerning the triviality of that file, there was no reason why we should have considered anything else.
Q Would you consider a statement by an investigating judge before the trial that there was insufficient evidence to detain a man, least of all, prosecute him, a trivial matter?
A I say from the point of view of dealing with the case as such, that statement by the investigating judge was without any importance whatsoever. Further more, according to the way it was handled, it meant that the case had been mishandled, for under the law Ankenbrand, if he arrived at the conclusion that the arrest warrant was not justified, should have revoked his warrant; or, if he was not of that view, he should immediately directly, not via the prosecution, have submitted those files to me together with the appeal against the arrest so that the court could have decided about that appeal.
That was the legal situation.
Q Last week, Dr. Rothaug, you passed over your suggestion that this report of Groben's should be removed as merely a friendly effort on your part to keep Groben out of trouble when the case would eventually be reviewed after decision in Berlin. You stated that that was because Groben had issued the order releasing Katzenberger from arrest too late. Now, I ask you, when the Ministry of Justice in Berlin reviewed a case for clemency, do you seriously think that a late release from arrest would out-weigh your subsequent imposition of a death sentence on a man against whom the file stated there was insufficient evidence even to detain?
AAt the time when that event occured, we were not in any way concerned with the clemency question. Those events occured approximately in July 1941, that is to say at a time when we were not yet dealing with court files of the prosecution; and in that connection that peculiar treatment of the case on the part of Groben happened; and at that time we did not have to expect that those files would one day be sent to the Ministry in connection with the clemency question but that they would have to be submitted in those contexts; and for that reason alone, at a time when we could not yet know what would be the development, whether an indictment would be filed at all, and in that connection with such a submission, such a presentation, one had felt that some higher authority might notice that there had been some delay over the matter of arrest because the matter had been mishandled; and that was when the question was broached, whether in the interest of Groben, that is to say out of the purely friendly motives it would not be better to put that file with the inter-office files and in that connection I was of the opinion that that file as far as judging the case one was not concerned particularly with the judgment of the court; the judgment of the court was of no importance whatsoever; and that, consequently, there were no misgivings about putting that file with the inter-office files of the prosecution instead of leaving it with the court files.
That is the only question which we were concerned with -- which we were concerned with at the time.
Q Did you, Dr. Rothaug; you did want that Groben report removed from the court files, didn't you?
A It was put in the inter-office files of the prosecution.
Q Now, finally, Dr. Rothaug, in your experience can you cite a case, since 1933, in which a German Aryan was sentenced to death for having had sexual intercourse with a Jewish woman, who had a husband at the front?
Can you site a case?
A One such case occured with me; that was the Katzenberger case; that was the only case that came to me and I did not hear of any other such case.
THE PRESIDENT: That is a sufficient answer.
A But -
Q Now, Dr. Rothaug, you have described efforts made by the president of the court of appeal here in Nurnberg, Dr. Doebig, to transfer you away from his district. There was some talk of your being shanghaied off to Russia or some such place. In retaliation to this effort of Dr. Doebig, to get rid of you, did you ever denounce Doebig's judicial conduct in reports of yours to the Gauleiter?
A I did not make reports to the Gauleiter. I made detailed statements about that event here, and I pointed out that concerning that attempt to get rid of me, I later made a report to the Gauwalter of the Jurists League and that for the reason that he expressly had requested me to do so, and because I knew, as he had told me so, that he had requested me to do so because generally, because all the higher authorities of the Nurnberg agencies were being checked up on.
Q Did you, Dr. Rothaug, take official actions of Doebig which you considered to be unacceptable to the party and denounced them to the party in retaliation for Doebig's efforts to get rid of you?
A I merely did what I have already told you, I reported to the Gauwalter of the Jurists League. That report did not only deal with the attempt to get rid of me and send no to the East, but it also dealt with other occurrences.
Q Who was this loader of the Gau lawyers and judges to whom you reported?
A The Gauwalter of the Jurists League, the Rechtswahrer Bund; the association was Oeschey.
Q And he was the one to whom you reported these matters; is that correct?
A I sent it to Oeschey
Q Did you in July, 1940 denounce Doebig to the Gauleiter for not firing a l**al court judge at Offenheim, who had, in your opinion blundered by refusing to squash proceedings against two Germans for assault and battery with weapons upon a group of Polish laborers?
A No, I didn't submit a report of that kind. This event which has just been put to me is entirely unknown to me, and from that I deduce that it in impossible that I could have made a report to the Gauleiter, but even if in my capacity as Gaugroup Administrator for the judges and prosecutors, I had dealt with that matter, I would not have sent that report to the Gauleiter but merely to the Gauwalter, the Gau Administrator of the Jurists League; but I know nothing about that matter.
Q Did you in June 1941 denounce Doebig to the Gauleiter for not firing the local court judge in Nurnberg whose decision to terminate Aryan tenancy on the testimony of Jewish witnesses was, in your opinion "a forgery which could give credit to a Jewish Rabbi."
A In reply to this I must explain that I assume that you are referring to the case where a counselor of a district court had administered the oath to a Jewish woman; is that the case you are referring to?
Q I am referring to a case involving tenancy held by a German national, despite his objections that tenancy was terminated for some ground or other, on the testimony of Jewish witnesses -- in June, 1941.
A I know nothing about that natter; and, therefore I am sure I did not make a report.
Q Did you in this sane case, to which I have just referred, also denounce this local court judge in Nurnberg for not squashing the proceedings altogether for the reason that, as you said, the Jews had been decisively responsible for starting World War II; did you do that?
A. No, I didn't do that.
Q. Did you in the same year, 1941, denounce two Nuernberg local court judges to the Party as "complete ideological failures" for convicting a German national of slander on the testimony of a Jewess?
A. I did not denounce any such local court judge; I know nothing about the matter.
Q. Did you in the same case, to which I have just referred, particularly object to these judges swearing in the Jewess witness, even though she was about to be deported and they were anxious to secure her testimony? Did you do that?
A. No, no. All that is quite new to me; it is completely new to me.
Q. Did you in the same case denounce Doebig for not firing the local court judges involved in view of the fact that one judge, namely, the affiant Ankenbrand, whose affidavit was just introduced here on another matter, was dismissed from the Nazi Party for this occurrence?
A. I heard of that; I believe I heard of it after I had gone to Berlin. I knew Ankenbrand fairly well, and I had come to know him from the time when I was in Schweinfurt and when he was there too. We were fairly closely connected and when I heard the story in those days, I immediately said that there was no legal foundation for that matter and that nothing could-come of it, but that was a purely private conversation about the matter and I never had anything to do with the matter as such; nor did I ever make a report or anything of the kind.
Q. Did you in that same year, in 1941, denounce to the Party a local court judge in Fuerth as "the tool of a Jewish bastard" for acquitting a Jewess of deformation of a German national, and did you declare that by that decision the judge became insupportable as a judge?
A. I did hear of that on one occasion, but I had no contact whatsoever with the matter. If I had ever put my pen to a paper in connection with that case. I would know of it and I would know it because that judge of the local court at Fuerth went to the same grammar school with me at Aschaffenburg, and therefore I am sure that I would not have forgotten the matter if at any time I would have had to take any steps which might have been embarrassing for that man.