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.
We cannot believe that the gentlemen in the highest office contrary to their conviction would not have availed themselves of the legal ausiliary means of the nullity plea which was at their disposal, if they would have considered a verdict to be r false judgment.
Hitler's alleged decisions concerning pardon could not absolve them from it. Whether the decree concerning public enemies was to be applied or whether it would have to be considered that this was a more severe case that was not a problem of clemency, but a problem of the Law on which only the courts had to decide. That is why the administration of justice and at the top of it the ministry had been given the possibility to use the objections on the grounds of irrelevancy, which they had to apply, if they considered a false judgment had been given. That this was not being done though the legal procedure was still open to be taken until the execution and even after the appeal for pardon had been rejected, proves that also in the highest places one had ultimately agreed to the verdict.
Engert too, together with Freisler wants to have been of the opinion that the verdict was a wrong one.
It results from the Prosecution Exhibit 152 that wrong reports in the press concerning the verdict on Seiler on account of race pollution had caused, the ministry to secure the verdict as quickly as possible. Engert only reported on this to Rothaug after he returned. Engert also did not do anything in his official sphere against the verdict, and in this he would have found the assistance in the ideas of his superiors who would have covered him, and he would have been obliged to do so, if he would have thought the verdict to be wrong. He did not even report to his immediate superior, Chief Public Prosecutor, Dr. Bems. On the contrary, as revisor of the clemency plea, he explicitly called the verdict unojectionable as to facts and legality and he was against granting clemency (Pems: Rothaug Exhibit 205).
If an Anti-Fascist or a Jew reproaches Rothaug with being an AntiSemite, then he must accept this, but if people do this such as Groben, Engert, Ferber and Dr. Baur, who like him belonged to the NSDAP and also belonged to the SA and have worked for the movement and sponsored it, or the SD-agents Elkar and Wilhelm Hoffmann do this here, then this has its humorous aspects.
Without doubt Groben, after having examined Seiler as a witness, was of the conviction that no race pollution was proven, not out of any philosemitic attitude, but from ignorance of the jurisdiction of tie Reich Supreme Court. Also his later conception suffers from this, But the most important point is that he did not act according to his conviction either, such as the law asks of him. It is important to state this, as he assumed such an extensive judgment in the case, with which he tries to divert attention from himself.
The material prerequisites for the issuing of the order for arrest as issued by him result from Article 112 of the trial order (Rothaug Exhibit 58).
It can be established from the statement of witness Zeuschel concerning the problem of the necessary urgent suspicion of the act that only after she had denied it for some time, did Seiler concede tie risky situation, and that Katzenberger only conceded it when he learned of the incriminating statements Seiler had made.
Instead of advising against lodging a complaint against the arrest which was prohibited and senseless in consideration of the speeding up of the proceedings for the lodging of a complaint against the arrest (Rothaug Exhibit 60, 61, 62) , Groben, according to Article 166 of the Code of criminal procedure, should have questioned the witness Seiler immediately, through whose testimony he later on gained the conviction that the warrant for arrest was illegal (Rothaug Exh. 63).
At any rate, when Groben got the impression that the warrant for arrest had been issued without any grounds, his unavoidable duty would have been, according to Article 123 of the code of criminal procedure, to revoke immediately that warrant for arrest and to do this immediately, i.e. without or against the order of a public prosecutor (Rothaug Exhibit 64).Instead of advising against lodging a complaint against the arrest which was prohibited and senseless in consideration of the speeding up of the proceedings for the lodging of a complaint against the arrest (Rothaug Exhibit 60, 61, 62), Groben, according to Article 166 of the code of criminal procedure, should have questioned the witness Seiler immediately, through whose testimony he later on gained the vonciation that the warrant for arrest was illegal (Rothaug Exhibit 63).At any rate, when Groben rot the impression that the warrant for arrest had been issued without my grounds, his unavoidable duty would have been, according to Article 123 of the code of criminal procedure, to revoke immediately that warrant for arrest and.
to do this immediately, i.e. without or against the order of a public prosecutor (Rothaug Exhibit 64).
Instead of that again, though it was forbidden, he gave the defense counsels a hint, to lodge a complaint against the warrant of arrest in order to shove the responsibility off to the Complaint Court.
Upon the complaint against the issue of the warrant of arrest, Groben, according to Rothaug Exhibit No. 72, had to revoke the warrant of arrest if he deemed the complaint justified, as it was the case. Otherwise his duty was to present it immediately to the Court of Appeal at the latest before three days had passed. According to Article 308 of the code of criminal procedure, only the Court of Appeal was competent for hearing the public prosecutor in the interest of speeding up the procedure. Against his legal duty Groben did not revoke the warrant of arrest demands it. Through this application is the responsibility is transferred to the public prosecutor. Rothaug discussed, this with the public prosecutor end his co-workers.
When the opinion was uttered that this document could be put into the internal files of the public prosecution, he only advised to do so if Groben would consent to it. At the occasion of a discussion with Ankenbrand he advised Groben via Ankerbrand, to declare himself in agreement with the acceptance of this document into the internal files of the public prosecutor.
neither did he present the files to the court of appeal as would have been his legal duty, he rather forwarded them to the public prosecutor with the remark that he intended to revoke the warrant for arrest, in case there was no further motivation for its issuance. Since he had the documentary evidence in his files, there was no sense for this action either, not even as far as their contents were concerned. There was no possibility for revoking the decision about the complaint against the issuance of the warrant of arrest which could be repeated at any time, until more evidence was brought in. This way of Groben to handle the matter, by which he again tried to evade responsibility, resulted in the complaint against the issuance of the warrant of arrest remaining for weeks on the desk of the public prosecutor until it was presented together with the indictment by Markl before the criminal chamber of the court.
Groben justifies his procedure with article 33 of the German code of criminal procedure, which I have submitted in Rothaug exhibit 74. Apart from the fact that in accordance with the rules of procedure for complaints only the court of appeal was entitled to hear the public prosecutor, article 33 refers to decisions of the court, but not to decisions of the investigator. This is an uncontested legal doctrine by getting the files into the hands of the public prosecutor, Groben's purpose was the same as when the one he had intended by provoking the complaint against the warrant of arrest: he wanted to turn over the responsibility to the public prosecutor. He expected an application based on article 126 of the code of criminal procedure (Rothaug exhibit 73) according to which he warrant of arrest is to be revoked before the indictment is lodged, if the public prosecutor. This was permissible since it concerned a document which was without any importance for the subsequent procedures, since it offered only proof for the fact that things had been handled wrongly before. In particular the document could not be used as evidence in the trial. As a matter of fact, nobody thought of drawing any consequences from this document. Nobody thought of it in terms of the destruction of a document (Rothaug exhibit 194).In his discussions with Ankenbrand Rothaug only thought of this procedure, and that was the only possibility, since documents of the public prosecution were concerned, and not those of the investigations so that there was nothing left for Groben but to give his consent.
If there had been any intention of letting this document disappear, nobody would have used the way of negotiation. The matter was much too unimportant for that. It was a friendly attempt to hush up an incorrect official action and only Groben was interested in it at that time. It is not correct that the incident had any bearings or the appeal for clemency and was supposed to have had the political purpose of hiding Groben's philo-semitic attitude. Nobody thought of that at that time. The clemency plea was dealt with after the middle of March 1942. At that time Groben had been a member of the special court for quite a while. If Rothaug had to say anything Groben, he did not have to bother Ankenbrand. The matter took place before the 1 of October 1941 at which date Groben joined the special court. This does not clear up the national socialist past of Groben. In accordance with what I have just said I can refute the charge of perjury raised by the prosecution.
Rothaug's excitement about Groben having let Seiler take on oath had the following reason:
German law does not want to have the evidence mailed down by someone who does not carry any responsibility for the final outcome.
In this case, the oath was administered on the basis of the exception provided by the law, namely that a fact was to be ascertained, the existence of which would be decisive whether a charge was to be made. In view of Frau Sieler's position in relation to the entire case, her testimony which had bearing on one item of the evidence alone, needed the most careful check-up by means of the other circumstantial evidence. This could only be done effectively in the course of the trial, so that there was practically nothing gained by her being put on oath. Groben's assertion on the other hand (Engl trans. p. 3623/24 German trans. p.
3585/86) that he was bound by the Prosecutor's motion is untrue. (Exh. 69). According to it, the decision in this matter rested not with the Prosecutor but with the Examining magistrate. Seiler conceded, which was also admitted by Katzenberger, that she often would sit on Katzenberger's lap, and kiss him on mouth and cheeks when they were alone together, and he would reply to these caresses by returning Seiler's kisses, pressing his head close to her bosom and petting and stroking her thighs through her clothes. The most stupid question that could have been put to this witness, Frau Seiler, in regard to these happenings was to ask her, whether sexual motives played any part in her conduct and whether she had the impression at the time that Katzenberger was dominated by sexual impulses. (Rothaug Exh. 667.)
As was to be expected in view of the circumstances, Seiler replied in the negative to this question. Through this, however, it became almost palpably evident from the transcript that perjury had been committed. It was with reference to this fact that Rothaug remarked, the witness Seiler had been "driven to commit perjury" by the "German craze for impartiality."
In his opinion it could only be decided in the trial, whether she was trustworthy enough to be put on oath. It was on these lines that Rothaug talked to Groben, That any political purpose was far from his mind is borne out by the fact that at the same time he went to some length to get Groben appointed to the Special Court although Groben's superior in service advised against this for technical reasons.
(Rothaug Exh. 52) On the basis of the sworn testimony of the witness Seiler, Groben thought an order for arrest unjustified, while Markl brought a charge of race pollution on the basis of those name testimonies.
The reason for this is obvious: Groben then as now understands sexual intercourse to mean coition. He proceded from the assumption that the Prosecution applied for Seiler to be put on oath in order to ascertain whether physical coition took place. Markl, on the other hand, based his application on the decision of the Reich Supreme Court, that any activity aiming at sexual satisfaction was to be regarded as sexual intercourse.
All he wanted to ascertain was, whether Seiler would confirm the compromising situation even on oath.
THE RESIDENT: Dr. Koessel, we are now on page 72 and we find the end on page 122, May I ask you, have you ascertained what portion of your exhibit you intend to print in writing without reading it? I ask that so we may determine whether to have s night session this evening.
DR. KOESSL: Your Honor, I only wanted to rad out the cases dealing with foreigners: the Lopata case, the Crasser case. We will have the foreign cases, I only want to read out the Lopata case and the Grasser case. As for the other cases, I wasted to leave them out. I had hoped to finish by five o'clock.
THE PRESIDENT: I had hoped to hear another defense argument this afternoon or evening.
DR. KOESSL: No other plea is available in translation, Your Honor.
THE PRESIDENT: Will it be available tomorrow morning?
DR. KOESSL: I think that Dr. Kubuschok has a plea which runs into 17 pages. That will be available tomorrow, and Dr. Brieger has a plea which will, on no account, take more than two hours. I think it will only take one hour and a half. As far as I am informed, the defense counsel will take about two and one-half hours tomorrows.
THE PRESIDENT: Is there any argument that can be presented this evening after Dr. Koessl finishes? I don't think we will finish tomorrow, gentlemen, unless we proceed. How many more arguments are there that have to be made?
DR. KOESSL: Only Dr. Kubuschok and Dr. Brieger.
DR. KUBUSCHOK: Dr. Brieger will be able to read part of his plea today.
THE RESIDENT: Today?
DR. KUBOSCHOK: Yes.
THE PRESIDENT: We will proceed to hear it then. Go ahead, Dr. Brieger may be prepared.
DR. KOESSL:
"The problem of the concept "sexual intercourse," as defined in the law for the Protection of German Blood and Honor (Rothaug Exh. 99) is settled through Rothaug Exhibit 100"-
THE PRESIDENT: There seems to be a lot of discord in the courtroom. Let's have it quiet while the argument is being presented. Go ahead.
DR. KOESSL:
--"where the mere attempt of any Aryan man to enter the apartment of a Jewish woman in order to indulge in sexual intercourse was defined as attempted race-pollution; the same goes for Rothaug Exhibit 95, wherein the following is stated in detail: Sexual intercourse signifies apart from coition also all activities (active or passive) of a nature intended to replace coition in bringing about the satisfaction of the sexual impulses of at least one partner. Neither the wording nor the purpose of the law could lead to the restricting provision that race pollution could only be committed completely if contact provision that race pollution could only be committed completely if contact between both sexual parts was established. It is sufficient that some kind of relation between the two sexes is being extablished, through one partner's reaction to the other partner's action whereby it is not even material whether the former partner is capable of recognizing the nature of the others action. It is also irrelevant legally, whether either of the partners achieves the desired sexual satisfaction. If the culprit should point to the fact that a certain activity served only as a preparation in order to rouse the sexual impulse, which was to have been satisfied by an act of coition, intended to take place immediately afterwards, which, however, was not consummated, it is still a case of wilful consummantion of complete sexual intercourse, only provided the action as such was carried out wilfully by the culprit.
These generally recognized principles also guided the later verdict.
Rothaug's views on the swearing in of Frau Seiler had no bearing on the continuation of the trial against Katzenberger, it was no obstacle and therefore did not constitute a ground for combining the two proceedings later. It is also untrue that Rothaug in July 1941 took steps in order to get the case into his hands. Ho was not acquainted with the case up to the time when ho came into contact with it in the course of duty. In order to be able to judge whether the Special Court was competent because wartime conditions had been taken advantage of in order to commit the crime, he was obliged to study the files. Markl and Schroeder, - the letter of whom alone was authorized to sign (Rothaug Exh. 80) had brought charges for race pollution before the Criminal Division only. Even though the possibility existed that Schroeder had received different directions on the basis of the report which he had to submit superior authority together with the indictment, yet Rothaug had to consult the records in order to decide whether war-time conditions had been taken advantage of in order to commit the crime. The files, however, were then in Ferbers' possession, only he could give Rothaug access to the files. He put them in front of Rothaug with the remark that in his opinion this was a case for a Special Court, as the husband of the woman involved had been drafted for war service. Rothaug looked through the files and arrived at the conclusion that there was also a basis for suspicion of an infringement of article 4 of the Decree against Public Enemies, and informed the Prosecution of this opinion. Thereupon the latter withdrew their charges before the Criminal Chamber. (Rothaug Exh. 82) Ferber's action towards his superior was in accordance with his duty to examine the case as laid down in article 6 of the Code of Criminal Procedure.
(Rothaug Exh. 81). The Prosecution thereupon submitted the Defendants complaint against custody to the Special Court, which decided in the matter in its entirety according to article 20, par. III, sentence 2 of the Ordinance governing Competency (Rothaug Exh. 84).