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.
In other words, I had no contact whatsoever with that matter.
Q. Did you in that same case denounce Doebig for not removing the judge and for "thereby encouraging judges to pronounce judgments of this type which are detrimental to the interests of the German people"?
A. Well, the connection between those matters becomes clear to me if there was an intention to assert that perhaps those cases might play a certain part in the summary which later on was sent to Berlin, that is to say, if one wanted to say that those cases were mentioned there, all the more so as there is an intention to assert, allege, that that memorandum had been written by me. I have to take care to explain that in the autumn of 1942 I reported on a number of cases because I had been requested to do so. That report was not sent to the Gauleiter but to the Gauwalter of the Jurists League. As for the details mentioned in that report, I cannot tell you without seeing the report, but as for the matters which are of importance here, as for the matters of that district court judge, local court judge, in Fuerth and also Ankenbrand, I not only had nothing to do with those cases when they occurred, but I didn't even know anything about those matters at the time.
Q. Did you in connection with the removal of Jews and confiscation of their property denounce Doebig to the Gau Legal Office, as you say --as an opponent of the Nazi movement because of his congratulating a local court judge in Fuerth who had refused to enter in the estate register such forced transfers of Jewish property?
A. I know nothing of that.
Q. In that connection and at the same time did you remind the Party that by 1941 hardly any Jews were left in the Gau of Franconia?
A. In what connection is that supposed to have happened?
Q. In connection with the case to which I just referred?
A. In a report?
Q. In a denunciation or report to the Gau Legal Office, headed by the defendant Oeschey, as you have explained.
A. Well, the Gau Legal Office is something different than the Gauwalter of the Jurists League. All I know is that I wrote out a report, as I had been requested to do so, and that report concerned matters which had somehow or another affected my group. I could only report on such matters. Naturally, there were a number of occurrences which were not discussed in my group, but were dealt with directly by the Gau Legal Office.
Q. I realize that, Dr. Rothaug. I did not ask you that, but if you reported such events as I have just described and in the language I just described.
A. In answer to that I am trying to explain that the report which I made was a summary and was concerned with matters which occurred at some time or another either with the Gauleitung or between the Gauleitung and the president of the district court of appeal, some matters about which there had been an argument, but the cases on which I reported were cases which had played a part with me and with my Gau group.
THE PRESIDENT: To whom did you send that report?
A. I sent that report to the Gauwalter, the Gau Administrator of the Jurists League, and that was Oeschey at that time. Oeschey was a Gau Legal Advisor at the same time that he was Chief Gau Officer with the Gau Staff Office.
Q. Did you at any time denounce Doebig to the Gau Legal Office for ordering you to remove signs from your Special Court forbidding Jews from attending session as spectators?
A. I did not report that, nor did he ever ask me to remove such signs. Quite a different matter was concerned there.
Q. Did you ever at any time complain to the Gau Legal Office that other judges and prosecutors in the Palace of Justice in Nuernberg insisted upon characterizing your court, the Special Court, as a murder mill?
A. I did not report on that to the Gau Leadership, nor did I hear of such a charge that other people were describing the Spacial Court as a murder mill. This is the first time that I have ever heard of it, and the only thing that is correct is this: There were people who, as I testified to under direct examination, without ever attending my sessions or without having read a judgment by me, tried to incite people against our work inside the courthouse, but I did not observe these things myself. I heard of them from my assistants, and they asked me, and it was understandable that they should have asked me, to take some steps to stop that because they couldn't see why they should do such responsible and difficult work in the courthouse and then be attacked and be unprotected. I repeatedly told Herr Doebig about the matter and---
MR. WOOLEYHAN: May it please the Court, Document NG-2167, which has been distributed, is a letter written to Gauleiter Holz on 18 December 1942 by the defendant Oeschey in his capacity as Gau Legal Advisor to the Party. In a postscript to this letter Oeschey declares on his word of honor that all of the situations to which I have just referred were literally copied by him from a report given to him by Dr. Rothaug.
INTERPRETER: Just a moment please; there are other voices coming in over the sound system.
BY MR. WOOLEYHAN:
Q. Dr. Rothaug, is what Oeschey says there accurate? Did he really copy all this denunciation from a report from you?
A. Would you tell me, please, what the date of that statement is?
Q. The date of that statement is the 2nd of June 1943, and it refers to a letter written to Gauleiter Holz by Oeschey on the 18th of December, 1942. The postscript in which Oeschey makers that statement is attached to the end of the letter.
THE PRESIDENT: What page is that post cript on, please?
MR. WOOLEYHAN: Page 17 in the English, your Honor.
THE PRESIDENT: There is no 17 on my exhibit, Mr. Wooleyhan.
MR. WOOLEYHAN: Your Honor, apparently my copy is misnumbered, but it is the last full page of the document and it is entitled "File Note".
THE PRESIDENT: It appears to be signed by Dr. Emmert.
MR. WOOLEYHAN: That is correct; that is the postscript to which I refer. The second paragraph begins "Oeschey declared". That is the paragraph to which I refer.
BY MR. WOOLEYHAN:
Q. Now, so far as you know, Dr. Rothaug, did Oeschey in fact copy all these situations we have been discussing here from a report submitted to him by you and which you have denied knowing anything at all about?
A. All the matters of which I have said-
Q. Did the witness hear the question?
A. Yes, I heard it. All matters of which I have said that I know nothing about, or that I only heard of them subsequently in some way or other--all those matters were not contained in my report to the Gauwalter.
His affidavit, or the date on which it was given, is particularly important, as it was many months after the report had been made. That report did not refer to the cases which I have disputed here, out it referred to one specific matter; and that would become understandable if I explained that specific case and gave its history. It concerns-
Q. One moment, please. Well, if you didn't supply Oeschey with all this material contained in this report of his to the Gauleiter, where did he get it? It is hardly credible, is it?
A. Well-
MR. WOOLEYHAN: I wasn't finished with my question, but I can't go on.
THE PRESIDENT: Wait until the prosecutor finishes his question before answering.
MR. WOOLEYHAN: I am trying to finish it, Your Honor, out I can't hear. There is a lot of chatter.
THE PRESIDENT: We are having difficulty with the electrical transcription.
MR. WOOLEYHAN: Shall we continue despite it?
THE PRESIDENT: I think we had better have it corrected before we proceed.
THE INTERPRETER: The technicians say they can't do anything about it.
THE PRESIDENT: The Tribunal will recess while the mechanics correct this difficulty.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: We are informed that the electrical system has been repaired and you may proceed.
MR. WOOLEYHAN: Thank you, Your Honor.
BY MR. WOOLEYHAN:
Q. Well, Dr. Rothaug, was Oeschey telling the truth here when he said that everything in his report he had literally copied from a report that you submitted to him?
A. That affidavit refers to one single occurrence which was of importance on the 2nd of June 1943, and that occurrence refers to that passage in the report which deals with Doebig, who, later on, was President of the District Court of Appeals -- no, not Doebig, Emmert. That passage criticizes Emmert's conduct. The report was made at a time when nobody expected Emmert to become the President of the District Court of Appeals at Nurnberg. Later, when he was appointed to that post, he heard of the report and of that critical passage contained in it. He came to hear of it through Thierack's indiscretion. Emmert, referring to that passage only, complained to the Gau leadership of Franconia and, naturally, attacked the person who wrote the report, and that was Oeschey.
Q. Well, tell me this, Dr. Rothaug, tell me this. It is clear from what you say that you deny that Oeschey got any of these denunciations of Doebig, that I charged you with, from you. And now I ask you, what interest would Oeschey have in collecting all these denunciations against Doebig and other local court judges and reporting them to the Gauleiter as he here did. You were the one that was alter Doebig's job were you not?
A. No, that is just what I was not interested in, but you don't give me a chance to finish one single reply. You always interrupt me at the moment when I am trying to make things clear.
Q. One more thing. You have just said that your interest in Doebig's position was just what you were not interested in, and Oeschey here --when asked by the Gauleiter whether or not he was under the impression that you sought Doebig's job, Oeschey said yes.
Now, is Oeschey wrong there again too?
Was he telling--/
A. Now you have asked me the third Question without having given me a chance to answer the Questions you put to me before. I don't mow what I am supposed to do now.
Q. You might, fer a change, begin by saying yes or no to some of these questions. I am not asking you for an oration, I am asking you for an answer.
THE PRESIDENT: Suppose you state one question briefly, Mr. Prosecutor.
(Dr. Koessl approached the rostrum.)
I will not hear you at this time.
Let us have one brief question and then we will give the witness an opportunity to answer it, Mr. Wooleyhan.
MR. WOOLEYHAN: Yes, Your Honor.
THE PRESIDENT: Restate a question, please.
BY MR. WOOLEYHAN:
Q. You denied, Dr. Rothaug, that when Oeschey says he copied from a report by you concerning this Doebig affair, that he didn't copy anything from you involving any of these denunciations of Doebig with which I have posed you. I am asking you why you think Oeschey would have any interest in denouncing Doebig, in view of the fact that you were after Doebig's job.
THE PRESIDENT: Now you may answer.
A. This is my answer. I must emphasize once again that one must keep two things apart. First, the Rechtswahrerbund, the Jurists League, was an affiliated association, where I worked on behalf of the interests of the judges and the prosecutor. One must keep apart from that the Gauhauptstelle, the Gau Main Office, or the Gau Legal Office, which had nothing to do with the Rechtswahrerbund, the Jurists League, but which was a Party office. That was where Oeschey sat. There were matters wish occurred in our professional organization and which, in some way or other, affected a judge or a prosecutor.
Such matters were dealt with by the Rechtswahrerbund, the Jurists League, and were registered with the Gau Legal Office, where they were left. Those were matters which had arisen from inside our Gau group.
All matters which concerned judges or legal affairs, which were dealt with by local group leaders, for example, in Uffenheim or in Nurnberg--those matters did not come to me, but the local grow leaders reported those matters via the Kreisleitung, the District Leadership, to the Gauleitung, the Gau readership, where they were dealt with by the Gau legal adviser. That is to say, as a rule they were passed on to the Gauleiter, or sometimes they were the cause for getting in touch with whatever agency was concerned.
I never heard, of all those matters which were dealt with by the Party, or I only heard of them by accident, or it sometimes happened that such a case was passed on to me to deal with.
As to the cases on which I personally reported to the Gauwalter, the Gau Administrator, or to Oeschey, the Gaustellenleiter, the Gau Office Leader, those cases were concerned with matters which had arisen in some way or other in the Rechtswahrerbund, in the Jurists League. And I did not make a report because I was trying to get the job of the President of the District Court of Appeals, but because Oeschey, in his capacity as Gauwalter, had requested me to report on the matters which had arisen inside my sphere. Oeschey had no interest in taking steps; Oeschey, as he told me at the time, for his part, had been requested by the Gauleiter to have such reports made. I therefore, with all energy, protest against anybody alleging that I had made a report in order to get Herr Doebig's job.
BY THE PRESIDENT:
Q. Now may I ask you a Question? And it is a very simple one. Did you communicate to Oeschey the matters which are stated over Oeschey's signature in the document which is before us, NG-2167?
A. Of all those cases mentioned there, I only reported on the matters that arose inside my groups. Those matters which today I state were eighte unknown to me or which I only heard Quite by the way, those were matters which had already passed through Oeschey's office; that is to say, they were matters in connection with which he did not need any information from me.
Q. I am merely asking you if you communicated to him any of the material which is contained in the statement over his signature.
A. Yes, I have already said.....
Q. And did the matter concerning Doebig come within the definition of your group to which you have referred?
A. What Doebig matter? His attempt to get rid of me and to send me to the East?
Q. I am referring to the statements concerning Doebig in Oeschey's report. Were those matters which you communicated to Oeschey because they concerned your group?
A. No, those were not all matters which concerned my group, but of those, for example, there might have been something -- well, for example, something that arose with the District Court at Uffenheim which did not go through my group, although that local court at Uffenheim did belong to my group. As to what was new, that is to say, I did mention something in my report to the Gauwalter concerning Doebig, his general, position, in particular the Emmert matter, and his attempt to get rid of me and send me to the East, and also that matter of which I have already spoken, that matter of the Stretcher pictures. However those other matters which were put to me today, that is to say, the matter of the local court judge who administered the oath to a Jewess, or who had something to do with a tenancy, or who was in charge of a trial in Fuerth, or that matter from Uffenheim--all those matters never did go through my Gau grouu, but were immediately dealt with by the Gau Leadership.
I did not have to give a report in connection with those matters, and I could not produce any information because I didn't know anything about it, for those matters came from the sphere of the Party immediately, to the Gau Legal Office, and that is where they were dealt with.
MR. WOOLEYHAN: Have you finished, Your Honor?
THE PRESIDENT: Yes.