Court No. III. Case No. III.
At the bottom of page 44 specific accusations regarding the method of conducting trials. The case of the Pole Cudcich shows that the extermination of cattle was a clear-cut of sabotage (Rothaug Exhibit 210). The fact that the defendant was a Pole was no proof of an intention to commit sabotage. On the contrary, it was examined on the basis oi the existing facts and in their particular case denied against the testimonies of the German Prosecution witnesses (ROTHAUG-Exh. 210 and 48). ROTHAUG (Engl. Transcript p. 7474/75, Germ. p. 7195/96), taking into consideration the young age of the Pole, considered a prison term sufficient in case his guilt should be established, although the Ministry had given directions to pronounce the death penalty. In the latter directions it was emphasized that the youth is the defendant should play no part. I thus want to disprove that the Courts had rendered more severe the Penal Law for Poles.
The actual attitude is much more proof than an unfortunate exclamation. The GUDCICH trial proves in itself that ROTHAUG never could have been dominated by the desire to exterminate Poles only because they were Poles.
In order to avoid the return of unjustly accused Roles to the Gestapo, ROTHAUG helped to find them good jobs. (ROTHAUG-Exh. 48 and 199). Nobody would do that who desires the extermination of all Poles.
2.) The accusation raised in Prosecution Exhibit 558, that Rothaug in agreement with Streicher had refused witnesses, is based upon an erroneous assumption of witness Ludwig. At the time of the trial in May 1937 Rothaug even did not yet know Streicher. Stegmann was an SA-Obergruppenfuehrer and was accused before the Penal Court because he had become guilty of breaking the peace in Party offices during a revolt of the SA. Already before Rothaug's transfer to Nuernberg the Party had refused to give the legally necessary (permission to testify) to a number of witnesses.
Not until the main trial was the exclusion demanded with the justification to exert efforts to obtain this permission then. No objections could be raised against this on legal grounds. Ludwig, however, including the names of these witnesses, submitted an application to present evidence which was denied by the Court on technical grounds because the witnesses did not matter. The appeal for review was based upon this but was withdrawn, expecting complete failure. (Engl. Transcript p. 9332, Germ, p. 8940). Regarding the permission to testify see Rothaug-Exh. 205. The proceedings were lawful.
5.) The introduction of judges from the Special Courts into the Penal Court (Strafkammer),- which also had to decide about the applications of the Special Courts to reconduct trials-fell within the jurisdiction of the judiciary administration and not within the competency of the Presiding Judge. The composition of the Penal Court on this basis was legally incontestable, although, it has been attacked (ROTHAUG Exh. 189).
4.) Prosecution Exh. 553 is a protest by ROTHAUG to the Presiding Judge of the District Court of Appeal concerning an abortion case of a certail SIMON versus high Party functionaries, in which it had been attempted under the influence of interested Party circles to transfer the case illegally to another Penal Court.
The legal conditions described therein are correct. The explanations of ROTHAUG, according to the clear purpose of the letter, were to anticipate to begin with all possible points of view of a legal or political nature behind which it was hoped to defend oneself. It would be wrong to give weight to statements disconnected from this basic idea.
5. ) The application of Gestapo Reports in the case of Rosa HEUBECK has not occurred as asserted during the interrogation (Engl. Transcript p. 7577, Germ. p. 7289 and ROTHAUG-Exh. 207).
The introduction of the documents as evidence should have been presented by reading them (Par. 249 German Penal Code) as stated expressly in the Rules of Procedure (Par. 273 I German Penal Code). According to the record of proceedings (ROTHAUG-Exh, 207), such a reading did not take place. Only the preceding verdict against Goerg HEUBECK was read, which was permissible.
I quote from exhibition 193: "Opinion of the judges may also be based upon testimonies which are contained in a verdict that has been read," End of quote.
6. ) The accusation against ROTHAUG of having conducted a "theater trial" in the SCHMITT/FAHSEL case which came before the Panal Court in the Summer of 1937, does not concern ROTHAUG because the external framework of this trial was neither in this nor in other cases in his hand. In all cases according to his orders he had to report about the proceedings to the Justice Press Office which together with the Gau Propaganda Office decided whether or not a case was to be published in the press. If such was the case, then the Justice Administration Issued admission tickets to everybody. ROTHAUG had nothing to do with that. In no case had ROTHAUG given tickets to Party offices nor nad he invited the members of such offices. There were special directions for the Justice Administration for such matters as in the case SCHMITT/FAHSEL. ROTHAUG treated the matter as a normal case in a small court-room (DENZLER Engl. Transcript 7113/14 Germ. p. 6859), ROTHAUG Engl. Transcript 6840/41 Germ. p. 6608/09).
Only the appearance of large crowds of visitors, attracted by the posters of the Propaganda Office, caused the transfer of the trial to a larger court-room after it already had started, ROTHAUG had not counted on the appearance of STREICHER and other functionaries of the Gaulettung.
They all were not known to him in the Summer of 1937 (ROTHAUG Engl. Transcript 6840/42 Germ p. 6606 and 6608).
DENZLER, being a superior, issued directives to the Prosecutor who was seated at the same table with the judges. ROTHAUG states with certainty that he did nor receive a note with regard to the matter itself. Nobody has even made the attempt to exert unjust influence (Prosecution-Exh. 555, ROTHAUG-Record Engl. p. 7229/30 Germ. p 6869/70 and DENZLERTranscript Engl. 7111/12 Germ. p. 6857).
ROTHAUG's remark against FAHSEL did not occur in the extraordinary manner as asserted by DOEBIG. DOEBIG, who only reports from bearsay, has not explained what in the conduct of FAHSEL caused ROTHAUG's siipping. Considering the justifiable cause, one did not thing it necessary to take disciplinary action.
The verdict was attacked in the National Socialist Press because of its softness (ROTHAUG-Transcript, Engl. 7189, Germ. p. 6931).
FERBER'S testimony is untrue, viz. that ROTHAUG had expelled a man from the court-room because he thought him to be a Jew. The event as described above occured without ROTHAUG's will or knowledge and was exclusively dur to STREICHER (ROTHAUG Exh. 205 and DENZLER Engl. Transcript 7112 Germ. p. 6858).
7.) In the HELLER MUENDEL case the defendants had enticed a taxi driver to drive into a lonely wood pretending they were taking a trip. There MUENDEL caused the driver to stop under the pretext to relieve himself and thus enabled HELLER to utilize the seat behind the driver - in other words a typical automobile danger - and to fire the fatal shot into the head of the driver.
When they were surrounded, HELLER shot the hand of a policemen (Record Transcript p. 7227/28 Germ. p. 6967/68).
In contradition to FERBER's description this was a severe double criminal act. The legal point of view taken in this matter was just (ROTHAUG-Exh. 161 and 162). Also FERBER's assertion, that the trial was conducted at record speed, is misleading.
HELLER and MUEDEL had fully confessed their crimes. They had renounced an intervening tine before the summons, which was legally permissible.
The law concerning motor vehicle traps was the necessary reply to the epidemic increase of cases of robbery on the Autobahnen. To counteract this, quick action in every individual case was essential. Therefore the Public Prosecutor at once wrote the bill of Indictment in the case, which had been cleared up by the confession of the Defendants. Following an instruction by the Ministry to await a decision of the Reich Supreme Court in a similar case, HITLER entervened, which had the consequence, that the indictment was submitted to the Presiding Judge still on the same day; the Presiding Judge in agreement with the Defense Counsels fixed the next day 1100 hours as the date of the trial, which was interrupted at 1200 hours for two hours and was concluded at 1700 hours, FERBER's assertion, that HITLER only interfered in the clemency proceedings, is not true. The trial was conducted without undue haste and carefully.
The Court had to travel to the place of execution in order to make a decision concerning possible requests for retrial. Only the Senior Public Prosecution was in charge of the execution. ROTHAUG did not travel to Munich with STREICHER.
Nor did anyoody consume alcohol. Dr. KUNZ' statements, who relates rumours, as if he had any knowledge of his own, are wrong. ROTHAUG had nothing to do with STREICHER'S presence at the execution. He stayed with his Judges in the anteroom of the execution chamber, as was prescribed by the regulations. It was the only time, that he was in a place of execution in his capacity of Judge or Public Prosecutor. (Engl. Transcr. P. 7235, German Transcr, P. 6974, DENSLER Transcr. Engl. P. 7099, German P. 6848 sqq).
I interpolate. Rothaug testified as to the reason, method and duration of the visit to Dachau Camp. This concerns a purely incidental matter of the year 1938, with no official character which was connected with the Christmas amnesty and which did not permit Rothaug to gain the slightest impression of incidents in the camp.
Rothaug knows nothing of anthropelogical investigations carried out by Streicher in the prison. The prisons were under the Jurisdiction of the General Public Prosecutor and the prison officials, not under the Jurisdiction of the Presiding Judge.
Rothaug did not mention the abortion question; this has been rectified by witness Kunz (Engl. Transcr. P. 3574, German Transcr. P. 3548/49). The question of Muendel's pregnancy had no bearing on the judgment, but was only relevant for the execution, which was no concern of the Court. Rothaug would therefore have been justified to limit his expert's opinion correspondingly (Rothaug Exh. 190), unless Kunz has confused the persons also in this point after 9 years, where he vaguely states that this happened "on the way to this room". Kunz asserts, incidentally without giving any concrete details that Streicher influenced the Court; that this assertion is not true follows from the simple reflection, that here was a credible confession, the consequence of which was determined by law, so that there was nothing to direct.
8) The Cross-examination question (Engl. Trancr. P. 7526, German Transcript P. 7272), why on the occasion of the Aryanisation Rothaug did not issue warrants for arrest in accordance with Art. 125 of the Code of Criminal Procedure, is disposed of by pointing out, that Rothaug was not examining magistrate and was authorised to act as a substitute for the examining magistrate in issuing arrest warrants only by Art. 20 of the Decree concerning Jurisdiction of 21 February 1940. (Rothaug Exh. 84). But on 21 February 1940 the Aryanization had long been completed.
9) In the Kurks and Struss case (Prosecution Exhibit 232), (Cross-Examination Kern, Engl. Transcr, P. 3810/11, 3934/35 German Transcr. P. 3769/70 and 3887/88, Prosecution Exhibit 154 and Cross-examination Marx**Ehgl. Transcr. P. 3675/77, German Transcr, P. 3641-3643 Rothaug Exh. 205), two Polish women bad set fire to an armament factory near Bayreuth with intent to commit sabotage. They were kept in custody at Nuernberg, which resulted in the Nuernberg Special Court being competent in accordance with Art. 8a of the Code of Criminal Procedure They had been caught in the act and had confessed everything. In addition there existed a letter of one Defendant to the other, in which the whole plan and the execution of the act was laid down. (Rothaug Transcr. Engl. P. 7238-7247, German P, 6977-6986).
In the existing situation and in accordance with Art. 23 of the Decree concerning Jurisdiction the main trial had to start immediately without intervening time for the Defendants to obey the summons. Rothaug declared to Attorney Kern who had been appointed Defense counsel, in reply to the latter's objections concerning the shortness of time, that there was no legal way to avoid this.
If he was unwilling to conduct the Defense, things had to be done without him, that meant, that things had to be done without Kern, but hot without Defense Counsel. Both Defense Counsels appeared at the session without making any further objections (Prosecution Exhibit 232, Cross examination Kern, Engl. Transcr. P. 3811, German Transcr. P. 3770).
The one Defendant upheld her confession in the trial, the other denied her guilt, but admitted that she had confessed it to the Police. No circumstance was revealed, which might have rendered erronous incrimination of the second Defendant intelligible.
In accordance with Paragr, II, III and XIV of the regulation concerning penal jurisdiction over Poles the sentence had to be in accordance with German Law, which meant in this case Art. 3 of the Decree concerning Public Enemies, which unconditionally prescribes the Death Sentence.
The "request for evidence'' affirmed by Kern, that persons were to be examined, in order to ascertain, whether these persons could testify to anything concerning the act, would have been a request for evidence, with which it was not permitted to comply. The trial was conducted in a careful manner. Also a German could only have got the Death Sentence.
At that time Kern saw no reason to make a request for a new trial or to start a nullity action, though the Defendants as Polish women in the Reich were in this respect submect to no restrictions.
I interpolate. The Prosecution states that the convicting took place twenty-four hours after the commision of the dead and this is entirely without basis. It is also incorrect in view of the various transfers of interrogations, because there it also would have been impossible.
1.) In the Geishauser case the Defendant after having been arrested for Immorality committed on a chile had insidiously stabbed the policeman near his heart on the way to the Police station.
Ferber has made both general accusations against the dealings with applications of the Defense Counsels outside the trial (Engl. Transcr. P. 1350, German P. 1358.), and the special accusation (Engl. Transcr P 1704, German P. 1724); that the Defense Counsel Kroher in the Gaishauser case objected to the opinion of the medical expert, giving at his reason, that the opinion was not objective, because it dealt with racial and sociological questions. This application for a new expert's opinion was rejected by Rothaug with the remark, that it is the task of the physicians, to assist the process of justice by such statements.
Rothaug has refuted the general accusations - misleading in their foundation and their *** concerning unfair methods of dealing with requests for evidence, by explaining the legal situation. (Engl. Transcr. P. 7196, German Transcr. P 6937).
THE PRESIDENT: Dr. Koessl, owing to the fact that we commenced the session a little early, it becomes necessary to take our recess at this time.
We will recess now for the usual period of time.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: I understand that Dr. Schilf desires to request that the defendant Klemm may be excused for the balance of the afternoon. Am I right, Dr. Schilf?
DR. SCHILF; Yes, Your Honor, that is the request which I wanted to make just now.
THE PRESIDENT: The request is granted.
DR. KOESSL: May I continue?
The medical opinion in the Gaishauser case had been given at the application of the Public Prosecutor (Rothaug Exh. 144) Ferber lodged the indicment taking into consideration this opinion, which he today criticizes. (Engl. Transcript p. 7324, German Transcript p. 7050).
The Judgment could only be based on the expert's opinion given in the trial. (Rothaug Exh. 142 and 148).
If anybody had to make objections to the written expert's opinion, Ferber had to be the man for he based his indicment on it. In reality the application of the Defense Counsel only asked for an expert's opinion on the Defendent to be given by a mental hospital. The application did not contain the statements alleged by Ferber (Rothaug Exh.
151).
The legal aspects of this application become apparent from Art. 81 of the Code of Criminal Procedure (Rothaug Exh. 152) according to which only the physician cann make the application for transfer to a mental hospital. The physician refused to make the application, wherefore the Defendant's suggestion could not be complied with (Rothaug Exh.
218).
Ferber's statement under oath is likewise untrue, that Kroher gave up the idea of another expert's opinion, because at this session the Defendant was represented by a substitute. According to Rothaug Exh. 142 Kroher himself made a renewed application in the trial, the physician did not make the application for a transfer to a mental hospital, wherefore also the Court rejected, the application refusing another expert's opinion, because the opinion of the physician was considered sufficient.
In Eng. Transcript p. 1337-39 Ferber gives his version of the facts, how Rothaug managed to get over the "outstanding point of the trial", to use his expression, and to destroy the 70-year-old man.
The question was, whether Gaishauser's case came under Art. 51 of the Penal Code, especially since he was under the influence of alcohol when he committed the act. The "unusually outstanding point" was the examination of the witness Meiler. According to Ferber she was a simple woman from the country, a girl of hardly 20, the daughter of an innkeeper. Meiler observed Gaitshauser shortly before the act. Ferber describes, how Rothaug induced this girl to revoke her statement at the police station how he psychologically overwhelmed the witness and thus caused the medical expert's opinion, which was unfavorable to Gaishauser.
The judgment is the Caushauser case (Rothaug Exh. 1417) contains Meiler's statement in the trial concerning Geishauser's drunkenness. Rothaug Exh. 143 contains witness Meiler's statement at the police station. The witness stated the same things in both cases. The witness Heiler grew up at Nurnberg. At the Gaishauser trial she was a 34year old wife of a manufacturer, living at Feucht, which is almost a suburb of Nurnberg. She assured that nobody, including the Presiding Judge, Dr. Rothaug, ever intimidated here. She says, that she told nothing but the truth (Rothaug Exh. 43). That is what the truth looks like, in marked contrast to Ferber's testimonies. Rothaug Exhibit 42 is along the same line.
Moreover, things did not happen as Ferber stated, viz. that, when he prosecuted the case , he was only thinking of the law for the maintenance of the public peace, and of attempted manslaughter, (Engl. Transc. p. 1336/37). On the contrary, he himself charged the Defendant also with attempted murder and based his charge on the decree concerning violent criminals (Rothaug Exh.
150), which absolutely demanded the death sentence. He also himself asked for the death sentence at the session. (Rothaug Exh. 142) . The judgment complied with this motion (Rothaug Exh. 54 and 155).
The official opinion of the Ministry on the question of wartime penal law, especially of violent crimes, can be seen in Exhibit 6.
Both the Ministry and the Reich Supreme court regarded it as a protective law necessitated by war conditions (Rothaug Exh. 6 and 16). Rothaug Exhibit 17 and 19 deal with the requirements as defined by the decree concerning violent criminals.
According to them the type of the perpetrator, as it appears to the world, is irrelevant; the shot from the ambush is sufficient. If necessary, the offense characterizes the type of the violent criminal.
The judgment of the Special Court (Rothaug Exh. 141) is so careful and thorough, that it could only be the result of a conscientious trial (Rothaug Exh. 193). The judgment in the Gaishauser case does not contain even the shadow of an idea of extermination.
a) Also Schlemminger was convicted in accordance with Article I of the law for the maintenance of the public peace. This man had before the war shot with hail shot at night from an elevated place through the windowpanes into the bedroom of a police man in the belief that the policeman and his wife and child had already gone to the bedroom, which was not the case. In the same night Schlamminger fired a shot into the bedroom of the local Nazi Chief without attaining his aim to hit human beings.
The witness Ostermeier (Prosecution Exhibit 222) who as a Judge took part in the trial and the then Public Prosecutor Ferber (Engl. Transcript p. 9030, German Transcript p. 1357) both describe the trial as having been conducted with a strong political bias. Schlamminger, so they say, acted from political motives, because he had been sub 17 0ct.
-A-BK-19 & 20-4-Cook (Int. Hahn) jegted to political persecution.
In cross examination Rothaug was accused of having made far-reaching corrections in the draft of the judgement, whereas he had stated in direct examination that the original judgment read by him was in all essential written by Ostermeier.
The judgment was passed unanimously with Ostermeier voting for it. In cross examination Ferber admitted, that he asked for the death sentence with the approval of the General Public Prosecutor and that he concurred with the judgment of the Court concerning the clemency question (Engl. Transcript p. 1676, German Transcript p. 1696/97).
In the case of the attempt on the local Nazi Chief the question was, whether Schlamminger acted from political motives, in the case of the policeman it was sufficient, that he had been attached because of his official activity. Schlamminger denied having committed the act and could therefore not be asked about his motives. According to his own statement there had never been any dissensions of a personal, politically neutral or political character between him and the persons attacked by him. Schlamminger in his very nature rejected the idea of the state as an institution maintaining order. This could explain the attempt on the polliceman. In the case of the Local Nazi Chief political reasons were a likely explanation. Political arguments in the sermons of the parson are said to have caused a certain confusion in Schlamminger's mind, who was a mentally and morally primitive type. For these objective reasons it was considered necessary to examine the clergyman Kolimer.
The pertinent articles 155 and 221 of the Code of Criminal Procedure can be found in English Transcript p. 7211, German Transcript p. 6952.
Kolimer's examination, which was carried out correctly, showed, that Schlamminger was obviously under the influence of Koliner's adverse criticism, though the latter never thought of such a possibility.
Kolimer understood, that he had asked wrongly, No steps were taken against him, but the facts thus ascertained resulted in the death sentence being commuted, into penal servitude for 10 years by an act of clemency. Rothaug's opinion as to the amount of correctness he had made in the draft of the judgment was erroneous; this opinion had been based on his knowledge of his own style. On the other hand the ideas underlying the judgment remained unchanged. The judgment was not rendered more political than it was by its very nature.
Ostermeier's assertion, that in connection with these corrections Rothaug reproached him with lack of political understanding, is a result of denazification psychosis. The corrections concerned only the structure, Ostermeier's tyle, which was in itself bad and his characteristic imposible logic in everybody matters. (Engl. Transcript 7526, German Transcript p. 7242).
3.) Also the second judgment in the Windel parade case is attacked by Ostermeier as a miscarriage of justice, and he asserts, that Rothaug advocated the death sentence already when the first judgment was delivered. Because the opinion had not prevailed the judgment of the Reich Supreme Court furnished him with with an occasion to reproach Ostermeier, and later on he generally need the judgment to bring about severer sentences in public enemy cases.
It is alleged, that in the second trial further blackout crimes were "constructed'', in order to obtain the death sentence.
The judgment of the Reich Supreme Court (Prosecution Exh. 245)gave an opinion on basic questions of the decree concerning public enemies. These principles were afterwards authoritative, whoever sat on the bench of the Special Court. This was the most natural thing of the world.
The indictment charged Windel among other things with 19 crimes against Article II of the Decree concerning Public Enemies (Prosecu 17 0ct.
A-BK-19 & 20-6-Cook (Int. Hahn) tion Exh.
245).
The judgment of the Special Court of 6 May 1940 sentenced Windel as a dangerous habitual criminal, among other things for 5 crimes against Art. 2 of the Decree concerning Public Enemies to penal servitude for eight years.
The judgment of the Special Court of 10 July 1941 sentenced him to death , among other things for 15 crimes against Art. 2 of the Decree concerning Public Enemies.
The charges were based on burglaries in summer houses, committed under cover of the blackout.
In the judgment of 6 May 1940 the Special Court had devisted from the standpoint of the persecution by not assuming blackout crimes in 14 cases, among other things also, because the perpetrator had left the seat of his crime in each case only after daybreak.
This statement contradicted the statement in the judgment which had been drawn up by Ostermeier, that Windel in the Kern case had carried off his loot on a little trolley from the scene of the crime on 11 November 1939 shortly after 3 a.m.; for on 11 November 1939 it was still dark shortly after 8 a.m. The Reich Supreme Court concluded from this, that the Special Court had not formed a clear idea on what ways Windel had taken and under what lighting conditions Windel had in each case carried away his loot to safety.
The main criticism was the following?
Often the special worthlessness of the perpetrator - e.g.in the case in question - his being a dangerous habitual criminal gives his offenses the character of a specially serious case. In addition it must be borne in mind in this case, that Windel according to the investigations committed a series of weekly grave thefts to the detriment of the poorer classes without being under any necessity to do so; this had- led to considerable disquiet of the population in wartime.
If we aid to this what becomes clear from the preamble of the judgment of the Reich Supreme Court, that the Chief Reich Public Prosecutor had brought a nullity plea, because the Nurnberg Special Court had regarded the established 5 blackout crimes as no specially serious cases, we recognize, that also according to the Reich Supreme Court these 5 cases had already to be considered specially serious cases of blackout offenses.
Even this refutes Ostermeier's allegation, that the Special Court in its second judgment constructed 9 further blackout offenses. There was no reason to do so, if it was intended to pass the death sentence. The renewed examination of the facts talking into account the considerations of tie Reich Supreme Court resulted in the establishing of further cases of blackout offenses, cand this happened without any artificial constructions.
According to Hanka's statement (Enal. Transcript o. 3677) It is not true, that Rothaug at the first trial wanted by all means to obtain a death sentence.
The record of the session shows that Markl asked for penal servitude only. This notion, which he made after petting in touch with Rothaug, allows the certain conclusion, that Rothaug thought penal servitude sufficient. But today it omits Ostermeier's convenience better, that he was later reprimanded for it.
4.) Not only in the Windel case, but in general the jurisdiction of the Reich Supreme Court was of decisive importance for the jurisdiction of tine Special Courts In Rothaug Exh.
33, 14 and 15 it is stated, that the Public Enemy need not be a sworn enemy of the racial community or have a criminal mentality. Levity of mind and weakness of character is sufficient. The character of public enemies may result from the act itself, from the way it was carried out or from the perpetrator's personality.
In the Rothaug Exhibit 13 the Reich Supreme Court objects to the fact that the lower court has rejected the assumption of a public enemy, for the reasons that the defendant was suffering from a series of constitutionally conditioned defects, that he had grown up in socially unfavorable circumstances and that he was only 19 years of age.
As to the concept of the "particularly serious case" the decision of the Reich Supreme Court in the Rothaug Exhibit 10 has rejected the assumption that certain circumstances in existence could raise the offense begone the usual picture of such a crime. the law did not require a particularly serious robbery - a "crime during an air raid alarm" i.e. the robbery in itself, was sufficient for the assumption of a particularly serious case.
It is a misleading example Ferber rives when he remarks in connection with race pollution in Prosecution Exhibit 151 that it has been much ontested whether, for example, adultery on the part of soldiers' wives during the war could be prosecuted on the basis of the decree concerning public enemies.
The whole and only point of this fight was to determine whether socalled "Antragsdelikte" (offense prosecuted only on application) such as adultery, fall under Article 4 of the decree concerning public enemies. It was not a question of determining whether in the case of adultery with a soldier's wife the conditions created by the war were being taken advantage of. The decisive point is the fact that adultery and pollution of the race were on entirely different levels and that they were not at all comparable. The reproach-- chiefly based on the statements of the witness Ferber (Prosecution Exhibit 151 and Groben Exhibit 153 and Groben's testimony , English Transcript p. 3619-26, German p. 3581-3589) as well as on Markl's testimony under cross-examination (Prosecution Exhibit 154 and English Transcript p. 36543681) - aim at charming Rothaug with unfair practices and incorrect application of the law in the trial of the Katzenberger case.
Among the Katzenberger documents there is only one copy of the verdict.
On the basis of all statements made, the chronological events happened as follows: Katzenberger was arrested approximately in March 1941 and, at first, did not take any steps against it. In the beginning of July (statement Seller, English Transcript 1034 and 1038. German P. 1052 and 1058) Frau Seiler testified under oath as witness. Thereupon Groben caused the defense counsel to lodge a complaint against the order to arrest Katzenberger. Groben did not redress the complaint, he also did not submit the documents to the court of appeal, but referred them to the public prosecutor with the remark that he intended to annul the order of arrest unless more detailed reasons were given for it. The public prosecutor Markl disregarded this, and prepared a bill of indictment against Katzenberger on account of pollution of the race; the indictment was submitted by the witness Schroeder to the penal division at the end of July 1941. The presiding judge of the latter at that time was the witness Ferber.
Soon after the documents reached Ferber, the emerge was withdrawn from the penal division and the documents were submitted to Rothaug, the presiding judge of the Special Court, for a decision concerning the complaint against the arrest. This decision was made by the Special Court with Rothaug presiding.
It is important to keep in mind that a charge against Katzenberger was not brought before the Special Court and also that Frau Seidler, was not arrested, but that the documents, after the decision concerning the complaint against the arrest had been made, were returned to the public prosecutor for further investigations.
On 1 October 1941 Groben, according to his wish, was transferred to the Special Court.
After further investigations which extended over months, the public prosecutor requested, in December 1941, the arrest of Frau Seiler for perjury.
After that the documents were returned again to the public prosecu tor's office.
After further investigations charges wore brought against Katzenberger and Seiler in March 1942, against Katzenberger for a crime according to Articles 2 and 4 of the decree concerning public enemies in connection wnth pollution of the race, and against Seiler for perjury all in one bill of Indictment.
The date for the main trial was set. Rothaug, after having studied the documentary material, requested a medical opinion on Katzenberger and accordingly postponed the date of the trial for several days.
The main trial took place in the middle of March, and lasted one and. a half days.
A few days letter the verdict according to instructions, was taken to Berlin by the witness Engert.
After Engert's return an appeal for clemency was lodged with the Reich Ministry of Justice.
After several months Katzenberger was refused clemency.
Groben, who was a member of the NSDAP and who had been a member of the Sn for ten years, by means of computations and imputations came to the result that Rothaug lad reached the severe verdict which violated the law because he was prejudiced against the Jews.
The Court has refused to investigate the actual reasons for the verdict in that trial on the basis of individual proofs.
But the following can be determined:
1) According to his statements Groben obtained his last information a.s to the state of the investigations when alter the interrogation of the witness Seiler he sent the documents to the public prosecutor together with the complaint of the defense counsel regarding the arrest. He knew nothing of the result of the further investigations which lasted S months. For did he participate in the main trial or read the verdict.
2) But the vary result of the investigations which Groben had before him gave the public prosecutor occasion to bring a charge of race pollution against Katzenberger. Rothaug Exhibit No. 78.
3) The judgment was not only the opinion of Rothaug, but the opinion of the Hurnberg Special Court. Consisting of 3 judges, and represented their unanimous opinion.
4) Not even the defense counsels in view of the results of the rain trial asked for the acquittal of the defendants. (Seiler English Transcript p. 1938).
3) Neither the defendants, the defense nor the public prosecutor instigated the re-opening of the trial against the verdict which was available to everyone. None of these suggested the nullity plea. Nor did the ministry order any of these measures. In this connection it must be emphasized that Katzenberger and. his defense counsel were not subjected to any limitations whatever in this respect.
6) The public prosecutor and the General Public Prosecutor both expressed disapproval of clemency. The General Public Prosecutor merely pointed out the age of the defendant. This could only be taken into consideration in the verdict if it affected the criminal responsibility of the defendant. For this reason Dr. Bauer was summoned to the trial. But he confirmed the full criminal responsibility of the defendant in spite of his age. The age could thus only be taken into consideration as a ground for clemency (Schroeder Engl. Transcript 7037 - Dr. Bems in Rothaug Exhibit No. 205).
The Reich Ministry cf Justice received current reports in the matter from the beginning and it has currently approved of the treatment of the matter (Markl's statement, English Transcript p. 3653, statement Dr. Bems, Rothaug Exhibit 203).
Thus a great number of offices were concerned with the Katzenberger case in their own, independent competency, and all of them, by reason of the then knowledge of the rounded picture of the trial, as summed up in the verdict, had won the conviction of actual cold legal accuracy of the verdict and they acted accordingly.
However, today Schlegelberger maintains, already then he had consider ed the verdict to he a false judgment.