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.
BY MR. WOOLEYHAN:
Q. I have only one question further. Dr. Rothaug, Oeschey sent this lette to the Gauleiter. The series of denunciations from Doebig and the local court judges from the various towns were ostensibly Oeschey's because he wrote the letter and he signed it. But in a postscript he says that he copies it from you, with regart to the Doebig matter. Now in view of the fact that the evaluations of Desbig's conduct and the local court judges' conduct in those cases has to be either yours or Oeschey's, I ask you which one of you was it?
A. As I have already stated, you must try and realize the Oeschey received information form outside Pary offices, that is to day, from local group leaders, cell leaders, etc, and that it was Oeschey's job, as Gau Legal Adviser, to deal with those matters. Those are matters which generally before they got to Oeschey had already been dealt with by the Gauleiter, and were only concerned with actually making a report on matters which were already known to the Gau leadership. As concerns this affidavit, as I wanted to tell you before--only you cut me short--I have already said that that affidavit was made on the 2 of June 1943, that is to say, at a time when that report had practically no importace because Doebig had been transferred, I had been transferred, and Emmert was President of the District Court of appeals in Nurnberg. But Thierack, who was the Reich Minister of Justice, committed an indiscretion in so far as he told Emmert about that report which, as I have already stated in part, affected him. The result was that Emmert complained to the Gau leadership in Franconia. He called Holz "Dui." He attacked the person whose signature was under the report, and that was Oeschey.
The matter was embarrassing for Oeschey in so far as Emmert was his President of the District Court of Appeals, and I remember perfectly will that Oeschey discussed the matter with e. I told him that as I had always done it for reasons of friendship and as I would do it again for reasons of friendship, I told him I would assume the responsibility for this matter so that he woul not have any difficulties.
The result was that from that time onwards there was a breach between Emmert and me. But concerning the other matters which play a part in that report--apart from those that efrect Emmert there was no interest in them at the time. That affidavit merely referred to the fact that Oeschey had not examined the facts which I had laid down in writing and simply had used them as if they had been his own. That I have already pointed out. Those are the detaild concerning this question.
Q. Were the opinions underlying the denuncations of Doebig and all those local court judges contained in Oeschey's letter to the Gauleiter, Oeschey's
A. The contents of that letter to the Gauleiter--they are not know to me. I didn't read that report. I only read the text which I wrote.
Q. May the Court please, the prosecution offers Exhibit 561 the report in question.
THE PRESIDENT: The report is received in evidence.
MR. WOOLEYHAN: No further questions.
THE PRESIDENT: We will hear a brief redirect examination.
BY JUDGE HARDING:
Q. When you said you took responsibility for this report, I understood you to say that you took responsibility for this report to protect Oeschey, is that correct?
A. The main question was merely concerned with the passage referring to Emmert, nothing else was of any interest to anybody by that time. Oeschey knew that that Emmert passage actual ly had originated with me and consequently he was able to give that affidavit quite honorably.
I siad quite generally that on all point where ther might be difficulties, people might refer to me because I would assume all responsibility. I would have done the same at this trial.
THE PRESIDENT: Will you listen to what Judge Harding asked you and answer it briefly. Your objection that you have been cut off on your answer comes without great force, in view of fact that we are now entering the third week of you examination. Judge, will you repeat you question.
BY JUDGE HARDING:
Q. I ask you if yow agreed to take responsibility for this report to protect Oeschey?
A. Yes.
Q. How much of it did you take responsibility for?
A. In particular, for that passage which referred to Emmert. All other matters were no longer of any importance--all other maters contained in that affidavit.
Q. Did this report includes those other matters. It includes all these other matters. How you say you took responsibility for the report.
A. That is not how I meant my statement at the time, nor did anybody expect me to assume such far reaching responsibility, nor was there any need that I should, assume so much responsibility, because nobody was interested anymore in the other ******. That report was concerned with matters which I, myself, had witnessed. It was an attempt to get rid of me and send me to the East. There were also the matters which had occurred in my organization and which had been discussed in my sphere. The report was also concerned with matters which had not gone through my group bu which had gone through the competent office of the Gau leadership. They were matters of which I had never known and which were dealt with by the Gau leadership.
When that report was compiled, I was asked about the matters which had occurred in my sphere. Beyoned that, all other matters played a role which had gone via the Gau leadership--which were known there--and all those matter were icorporated in that report. So far as matters are concerned which did nor arise in my own sphere, I did not intend to assume any responsibility nor did anybody expect me to assume any responsibility for those matters.
Q. Now Oeschey says that he copied these things from a report of yours. Did he go beyond what you authorized him when he said that? Was that statement true or incorrect?
A. Well, in that connection, it wan not for me to give him any permission to do anything. I knew that other matters were pending with the Gau leadership and that they had been incorporated in the whole report. We probably didn't even discuss that.
Q. Was that statement of Oeschey's that he copied these from a statement you yours, true or incorrect?
A. It is correct as far as the Emmert matter is concerned.
Q. I am speaking not just of the Emmert matter. I an asking you about all of it. Is part of it true of part of it untrue?
A . That statement by Oeschey is not incorrect. That is not the way it was meant. You are misunderstanding it. Part of what Oeschey incorporated in his report he got from me. Another portion did not originate with me; it came straight from his Gau legal office. Those are not matters which he somehow or other brought in, but those are matters which came in him, being a Pary functionary, through the Party office.
Q. He said it came form you. Is that part of the statement true or incorrect?
A. Only is part.
Q. Then part of the statement is not true, is that correct, that he did not get those from you?
A. I wouldn't like to say that it is untrue. I wouldn't like to say by that he has done something dishonorable. That is perhaps badly expressed. He will be able to put that right him-self.
Q. Did you gine him authority to make that statement as to you, that you took responsibility for that?
A. That affidavit was made on the 2nd of June, and I believe that afterwards he informed me about it to acquaint me with the matter, and I agreed without, however, knowing what the taxt of the affidavit was.
Q. But you agreed to eccept responsibility for all of it then, as I understand your testimony, is that correct?
A. No, no, nobody asked me to assume responsibility for the whole matter. All of that was of no importance. None of that report was of any importance by the 2nd of June. That report had been written in December 1942, and in the subsequent period Doebig was heard. The Gauleiter, after he had heard him--and he heard him because we wanted him to do so-then the Gauleiter then said that on account of that oral and written report which Doebig made that he was altogether in agreement with what Doebig had said. Evidently, he was, after all, not the man who intentionally had done anything against the state. He seemed to be one of those people who was not strong enough to cope with the situation. He was then transferred to Leipzig.
Several months passed. I went to Berlin, and in June 1943, that is to say, at the time when that political report had become quite unimportant, Emmert, who heard of it, was upset by that passage and Emmert brought the subject up. And to save Oeschey embarrasment in the matter--and that is quite in accordance with the truth--he said that he copied the thing from me.
But in effect, that only referred to that one passage which in itself referred to Emmert. The rest of that report was so uninteresting to us that we neither expected anybody to assume responsibility or to make any statements.
One must bear in mind the historical background of Oeschey's affidavit. If one does that, one see that the matter is limited to the one passage.
Q. You had a conversation with Oeschey over the telephone in which he said he was making this report, as I understand it, it that correct, and that you agreed to assume responsibility for it?
A. No, no. That report had been written months earlier. It was written on the 18 of December 1942, and the affidavit was deposed on the 2 of June 1943; that is to say, that was six months later, By that time that report had lost its importance.
Q. What was the conversation which you had with Oeschey over the telephone, and when did it take place?
Court No. III, Case No. III.
A. Well, this is the first tine that I hear of this that there was supposed to have been a telephone conversation I know nothing about that telephone conversation. I think what must have happened was that I came to Nurnberg on a visit and we met. I met all former assistants, and it must have been then that Oeschey told me that there had been some developments. Probably that was when I heard of the whole matter. What happened was not that I rang up Nurnberg from Berlin or that he rung me up in Berlin -- that wasn't what happened.
Q. You saw him personally at that time, and when you said you took the responsibility for this, is that correct?
A. I didn't see him in Berlin. It was in Nurnberg. I never saw Oeschey in Berlin. He was in Nurnberg. I used to go to Nurnberg quite frequently because my family was still there.
Q. If you answer my question we could save a lot of time. When did you see Oeschey or when and how did you tell him that you took responsibility for this report?
A. I don't know when it was. I don't know for certain, but it must have been around the 2nd of June 1943; nor do I remember where it was that I told him, but I should think that it must have seen at the Blaue Traube. All I know is that he told me that on account of that report, that is to say with reference to the Emmert passage, there had seen difficulties. He also told me that he had made a statement, that it was an affidavit, that I have heard for the first time today, I suppose he must have told me too what he said in his affidavit, and I said that I agreed. I said, "That is all right." But I should like to emphasize that controversy and that conversation where we settled matters referred only to the passage dealing with Emmert. What Oeschey said in his affidavit, I never saw and I never read it either, and I haven't read it up to now.
Q. So then when Oeschey said that he had obtained this from a written report of yours, that was incorrect, is it, as to a great part of it?
A. His statement was correct when he said that he had taken the Emmert passage from me, and that in my view is all that Oeschey meant to say.
Q. But beyond that, when he said anything about anything except the Emmert passage, his statement was not true, is that right?
A. There are further points which originated with me; for example, the matter concerning my transfer to the East, or the matter concerning the Streicher pictures. Those cases occurred in my sphere. But as I have said before, that affiby Oeschey was not referred to in those matters -- anyhow, not according to what he said to me. The aid of that affidavit was to deal with the Emmert matter only. If it went beyond that in its phrasing, that was not meant to push things on to me with which I had nothing to do.
THE PRESIDENT: I think you have now been given full opportunity, which you desired, to state and to repeat your position. We will recess for 15 minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Redirect examination.
REDIRECT EXAMINATION BY DR. KOESSL:
Q: Witness, did the special court in Nurnberg ever when you were the presiding judge, sentence a Jew on the basis of the law against Poles and Jews?
A: That happened neither when I was the presiding judge, nor when one of my deputies was the presiding judge.
Q: Tell us briefly why, for example in the Katzenberger Case the application of the law against Poles and Jews was not considered?
A: Katzenberger was a German citizen and, as far as I know, had never been to Poland.
THE PRESIDENT: May I get your last answer more clearly in mind? Did I understand you to say that neither you nor any of your deputies tried any Pole with reference to the law against Poles and Jews? I think perhaps I must have misunderstood you.
THE WITNESS: There must have been a misunderstanding. We never convicted a Jew under the law against Poles and Jews.
THE PRESIDENT: I beg your pardon.
JUDGE HARDING: It isn't clear in my mind now. Did you convict Poles under that law?
THE WITNESS: Yes, we discussed that several times, but, as a rule, Poles were punished by the German law which was mandatory under the law against Poles and Jews. That is to say, we convicted them under German law, as directed by the law against Poles and Jews. That is why we said: "Under Provisions II, III and XIV on account of violation of a German law."
The difference was merely that the sentence was not for a prison, but for a punitive camps(Straflager) and, instead of a penitentiary sentence, there was a more severe punitive camp (Verscharftes Straflager) and, in case of the death sentence, it amounted to the same.
BY DR. KOESSL:
Q: In the Grasser Case, you were charged with having convicted the defendant for an offense for which Grasser had not been indicted. Therefore, I ask you, what was the basis of the indictment and what importance had the legal specifications of the prosecution concerning the facts of the case on which the indictment was based?
MR. WOOLEYHAN: Objection, Your Honor. The question is purely repetitious. It was gone completely over in the direct examination and in the cross.
THE PRESIDENT: The matter has been fully covered. If we could rely upon the witness to state very briefly his answer once more, we might be disposed to permit him to do so. What you're asking now is what were the specific facts in the charge, isn't that correct? That's what your're asking him for now?
DR. KOESSL: I wanted to hear about the basis for the indictment because, evidently, the prosecution...
THE PRESIDENT (Interrupting): What do you mean by the basis for it?
DR. KOESSL: What was the extent and what were these contents of the indictment? Was the legal specification of the prosecution contained in the indictment in the sum of a limitation?
MR. WOOLEYHAN: Your Honor, that appears in the face of Exhibit 139.
THE PRESIDENT: Objection sustained.