THE PRESIDENT: The document will be received in evidence.
MR. KING: We turn now to Page 12 in the English Book, to the Document NG-652. I regret that I do not have the page number in the German beok before me. This is the sworn affidavit of Dr. Franz Gres."
"I, Dr. Franz Gres, District Judge, retired, Amberg, Schweiggerstrasse I, declare herewith under oath:
"I was born on 2 February 1908 in Darmstadt. After receiving my Bachelor's degree, I studied law and graduated December 1933 in Darmstadt, and passed the state examination. I worked as an assistant Judge at various courts in Hessen, until I was appointed District Judge in Amberg, on 1 December 1937. There I remained until June, 1942, i. e. until I was ordered to leave for the Nuernberg Special Court."
We skip the following paragraph and begin with the next paragraph which reads:
"Dr. Rothaug was Presiding Judge when I came to the Special Court. I got to know Dr. Rothaug from the very beginning as a malicious man without character, who was afraid of nothing. He was the most dreaded and the most hated man in the Palace of Justice. We, his assistants, feared and hated him too, although we could not openly express such hatred. He also was the best informed, top man. He continually gave us his orders and instructions, making believe that he had received them from higher instances. As a high official of the SD or Security Service and of the NSR, which was the National Socialist Lawyer's League, he was continually in touch with the highest political dignitaries. He informed us to a certain extent of conferences he had held with them. Dr. Rothaug had many enemies; many people fought against him. However, he know how to have his own way due to his brutal manners and intrigues and thanks to his excellent political contacts; he also know how to practice his dreaded methods. One could even say he used terror and kept us, his assistants, under pressure.
"The sessions at which Dr. Rothaug presided can to some extent be called political show trials. He often gave long politican lectures in connection with a particular case, dealing with the war situation, the food situation and other topics which were meant for the audience, i. e.. for the public. He was unmoved by any of our objections. He repeatedly gave such lectures also to his collaborators and we called them his "gramophone records."
"Dr. Rothaug was anything but an impartial judge. He was mostly prejudiced against the defendant before he went to the trial. He demonstrated this outwardly by marking some cases with red exclamation marks in the trial calender, when he was determined, to end these cases with a death sentence even before the trial began. He showed his prejudice quite openly, too, during sessions, as well as in front of the two Assistant Judges. More than once he used to say in front of defendants: "be shall put your head before your feet." Such and similar phrases were current. He was often mean, spiteful and cynical towards defendants."
We drop down now, skipping the next paragraph and beginning with the paragraph which reads:
"I would like to mention the Grasser case, in order to elucidate particularly Rothaug's unbelievably harsh verdicts. This case still deeply impresses me. Rothaug sentenced Grasser to death on 2 July 1942. It was one of my first trials in which I participated as Assistant judge, and I remember that Grasser, a former communist functionary, was accused of a malicious political act. While working in an armament factory (Siemens Schuckert), he made some malicious remarks, such as air attacks on cities are of strategic importance because victims in war factories could no longer pursue their work. He also said before the Russo-German war that Russia and the United States would eventually win the war. He doubted the effective power of German night fighters which were unable to take off without gasoline. Grasser also was of the opinion that a former sportsman, who for political reasons had flown to France, had done the right thing. Then Grasser was c charged to have compared the attempt on the Fuehrer's life in November 1939 with the Reichstag Fire. He said that communists had been wrongly accused of both crimes. The defendant weakened the accusations very much, and even the Public Prosecutor was of the opinion that his case had to be treated less severly, because political opponents had made the charges. The defendant made a good impression during the trial which Rothaug raised to a big political affair. Grasser, who during the whole trial knew what it was all about, answered Rothaug's spiteful questions rather clearly and courageously.
"Consequently Rothaug worked himself into a tremendous rage, thus sealing the defendant's fate in advance. During the deliberations of the verdict we Assistant Judges could not agree with Rothaug's wish to judge the case according to the "Law against public enemies"."Rothaug poured out the wildest insults against us, the Assistant Judges.
He made us understand that our interpretation was incorrect and that his opinion had to be accepted. As we could not be convinced at first, the deliberations of the verdict were prolonged. That's why daring these discussions the presiding judge of the court of Appeal, Doebig, entered the conference room taking part in the deliberations. He was of our opinion that Paragraph 4 of the law against public enemies could not be applied in this case. Rothaug raged anew after Doebig had loft the room. He let it be known that he as Presiding Judge was responsible for the verdict. There was nothing else for us to do but to obey his wishes. Grasser was executed."
We turn now to the last full paragraph on page 17 in the English text. It is also the last full paragraph in the affidavit.
"Finally I would like to mention that Rothaug never passed the documents on to us to study them before a trial. On the contrary, he said this was not necessary as he always read the documents and knew exactly their contents. From this I realized that Rothaug merely tolerated us as his stooges. He therefore was in a position to keep us under preassure in his diabolical way. Rothaug was decidedly a bloodthirsty judge, known far beyond Nuernberg's borders. He was chiefly responsible for the bad reputation of the Special Court of Nuernberg."
That is signed Dr. Franz Gros, District Judge, retired.
We now offer the document NG 652 as Prosecution Exhibit 221.
THE PRESIDENT: The document will be received in evidence.
MR. KING: We turn now to Page 18 in the English text and Page 13 in the German text. The prosecution introduces as what will become when formally offered Exhibit 222, the Document NG 738, which is an affidavit of one Dr. Robert Ostermeier.
"I, Dr. Robert Ostermeier, Higher Local Court Judge in retirement, Nuernberg, Thurnerstr. 32, hereby state in lieu of oath:"
We turn to page 19 in the English text, the first full paragraph there which begins:
"To both the prosecution and the associate judges, Rothaug expressed these views he held, in his usual domineoring manner which did not break any contradiction. Anyone who would raise objections contrary to Rothaug's views incurred the danger of getting into a sharp dispute with him, and in those cases he left no stone unturned to make the person impossible in the official and political fields. We knew the great influence Rothaug had with the Department of Justice and with the Nazi Party. I recall at the outbreak of the war, Rothaug who surely know that not only I but also the other judges at the Special Court did our job there only against our will, pointed out to me that we should not think we could leave our work now, and he made me understand that this would be equivalent to desertion. Also, he once showed me a secret decision according to which the decisions made by judges could also be made subject of disciplinary action. From this decision, it became apparent that under certain conditions a judge of whom it was clearly seen that he had acted against the spirit of national socialist principles, could be discharged. I also know that Rothaug's connections and position really would have enabled him to make a judge so impossible that he would be removed from office and subjected to political retaliation measures."
We turn now to the top of the following page, page 20 in the English text, which is the bottom of Page 15 and the top of Page 15 in the German text. Beginning with the sentence in the English:
"I recall that on one occasion he made threats concerning a prosecution counsel who during the main court session wanted to make a motion different from the one Rothaug considered right. Amongst other cases, I had a dispute with him at the end of 1939 on the legal appreciation of a case, and in the course of this dispute Rothaug shouted and I myself also spoke in a rather loud voice. It was a case of passing on leaflets which had been dropped by enemy aircraft. He rejected my view, which would have meant a milder judgment in some and acquittals in other unimportant cases, and from then on the severer clause, which was Article 85 of the Penal Code, was applied to such cases. It is an important factor that in this case Rothaug did not want to know anything about the decision by the Reich Supreme Court, which was contrary to his views. During the consultation Rothaug expressed his views right from the beginning without a legal and factual report on the case by the judges, which would have been the customary procedure. Rothaug almost always discussed the motion with the prosecution counsel before the court session started and before the motion was made."
We turn now to Page 21 in the English, and it is very near the top of Page 17 in the German. The Paragraph begins "As far as Rothaug's collaboration in the SD is concerned, I know that he repeatedly received the visit of the SD collaborator, junior judge Elkar.
From occasional remarks, I know that with Elkar who wanted to get information on the development of justice, Rothaug discussed questions of legislation, verdicts, and also questions of staff policy. By this connection Rothaug gathered important information which he himself used to exert pressure on the associate judges by referring to the conceptions of the Supreme Leadership of State and Party, conceptions against which no objections could be raised. Rothaug used all his connections unscrupulously in order to have his wishes executed."
We turn now to the bottom of Page 25 of the English text and the top of Page 23 in the German:
"The case against Englbauer was a case of a 19 year old youngster who was indicted and condemned only on circumstantial evidence. He was indicted of having taken advantage of the obscuration to attack a woman and to rob her of her pay. In this connection it is important to point out the fact that, because of her being insane the woman had been in an asylum for two months. Furthermore, Rothaug stated in the verdict that Englbauer had waited for the Liebl women in order to attack her. There was no confession by Englbauer with regard to this admission. However, Rothaug was of the opinion that one could not put it beyond Englbauer, that therefore the criminal act had been committed intentionally. Insofar as a serious case, as defined by Art. 2, was assumed, this was done on Rothaug's express demand. From the beginning he had promoted this conception in order to obtain a death sentence. In this case it is important to point out that defense counsel in his plea asked that Art.
2 not be applied because the crime had not been committed within the area of obscuration. Rothaug did not accept this argument. He expressed the view that the possibility of using the obscuration in order to reach and leave the location of the crime were sufficient for him to apply Art. 2 of the blackout crime decree. Rothaug furthermore expressed the opinion that in spite of his youth Englbauer should be sentenced to death, to serve as a warning example. Seen from a purely humane angle this was a hard sentence but Rothaug would not let himself be influenced by any extenuating circumstances."
That statement is signed by Dr. Robert Ostermeier, Superior Judge at Local Court in retirement.
The prosecution offers as Exhibit 222 the Document NG-738.
TEE PRESIDENT : It will be received in evidence.
MR. KING: We turn now to page 28 in the English text, which is page 24 in the German text. We introduce at this time the Document NG-661 which, when formally offered in evidence , will become Exhibit 223.
"Dr. Martin Dorfmueller, former Public Prosecutor, at present clerk, born on 9 December 1904 in Rheinhausen-Niederrhein, now residing at Wetzler, Laufdorferweg 19, main residence and address of wife: Rhein hauscn-Hechemmerich, Bertastrasse 11.
"On 1 September 1937 I was appointed Public prosecutor at Nuernberg where I handled ordinary penal matters. I was drafted into the army on 26 August 1939. In August 1940 I classified as indispensable and, in September 1940, took up my work in Nuernberg again. At the end of 1940 I was told by the Chief Public Prosecutor that I had to take over a department dealing with Special Court penal matters. I refused giving the reason that I did not wish to deal with political matters and could not, in particular, collaborate with Landgerichtsdirektor Dr. Rothaug. This refusal was respected at first. A few months later, however, I was officially ordered by the General Public Prosecutor Dr. Bems to take over a department dealing with Special Court Matters."
I drop down on the same page --
DR. KOESSL (Counsel for Defendant Rothaug): May it please the Tribunal, I object to the presentation and the reading of this document because it does not appear to be in the form of an affidavit. It does not appear to be taken as an affidavit, and it contains simply a statement without following the required form.
MR. KING: Your Honors, the prosecution is not offering it as an affidavit.
The prosecution offers it as a signed statement of the individual, Martin Dorfmueller.
THE PRESIDENT: Is this a captured document?
MR. KING: No, this is not a captured document.
THE PRESIDENT: That is its origin?
MR. KING: So far as I recollect, the origin is a request from the prosecution that the individual Dorfmueller make suck a statement. It was not, however, made under oath.
JUDGE BRAND: It does not appear to comply with Rule 21.
MR. KING: At the moment I do not have that rule before me.
JUDGE BRAND: It relates to procedure for obtaining written statements in lieu of oath.
MR. KING: His Honor is quite, right. I agree that it does not comply with that.
THE PRESIDENT: You withdraw the statement then?
MR. KING: If that is the ruling of the Court we at this time withdraw the Document NG-661 and reserve the right to resubmit it.
We turn now to page 47 in the English text, which is approximately the bottom or the middle of page 48 in the German. He introduce at this time the Document NG-697 which will become, when formally offered in evidence, the prosecution's exhibit 225.
"Affidavit: I, Dr. Ernst Escher, of Fuerth, Rudolf Breitscheidestrasse 8, on being questioned declare the following oath: I was born on 22 February 1897, studied in Wuerzburg, then after completing my time as Referendar spent two years in the service of the State and have been a qualified lawyer since 1926. Since 1929 I have been resident in Fuerth and have worked at the Nuernberg-Fuerth Courts."
We omit reading the next paragraph and begin with the foll owing paragraph which reads:
"It was known generally and, of course, also to me, that if Dr. Rothaug or Oeschey gave a summons for appearance in Courtroom No. 600, they desired and had already intended to sentence the defendant to death, which actually happened in the majority of cases. By fixing proceedings for Courtroom 600 the presidents Rothaug and Oeschey, who were responsible this necessarily gave a catastrophic turn to the case for the defendant. I felt this to be an illegal method of influencing the decision which was to be taken by three judges. But as I have seen from my present study of the court Records and the manual of the Public Prosecution in the case of Kleinlein and Schailer - I was defense counsel for the defendant Kleinlein in this case - Rothaug was not afraid to urge the prosecuting authorities to pronounce a harsher judgment than was a proposed in the indictment. It is true that in the indictment of 8 January 1945 Frau Schaller was charged in accordance with Paragraph 2 of the People's Parasite Act in coincidence with the crime of habitually concealing stolen goods according to Paragraph 259 and 260 of the Penal Code, but the Public Prosecution had not made a particularly serious case out of it. The President of the Special Court, Dr. Rothaug, who received this indictment (Pages 105 - 107 of the Court Records) on 12 January 1945, sent a letter to the Chief Public Prosecutor on 20 January 1945 (Page 11 of the files of the Chief Public Prosecutor) which reads literally: 'It is supposed that the basic offense in the Schaller case is the habitual receiving of stolen goods. It is also clear that there is no intention of making the charge against her a serious one. I cannot share this opinion...'
"This letter of Rothaug's confirms what I feel as regards the facts in Paragraph 336 of the Penal Code. The decision as to how Schaller's actions were to be judged according to criminal jurisdiction was for the court to take thus, for the three judges. According to Paragraph 202 of the Penal Code, when the President had received the Indictment he had only to fix the date for the proceedings. Every decision in the case itself after the trial was over was exclusively responsibility of the court with its three judges, By his inadmissible letter to the Public Prosecution Rothaug anticipated the decision of the court and caused the Public Prosecution to change their original and milder standpoint to one which was Unfavorable to the defendant SCHALLER.
The death sentence was also actually demanded in the trial by the Public Prosecutor, and the court passed the sentence because of the overwhelming lending influence of ROTHAUG.
The monstrous letter addressed by ROTHAUG to the Senior Public Prosecutor was not attached to the court regards which the counsel for the defense is entitled to examine before the trial according to the regulations of the Code of Criminal Procedure (Art. 147); it was added to the private files of the prosecution instead. Had the defense counsel known about the letter before the trial it would have been his duty to challenge judge ROTHAUG for apprehension of bias according to Art. 24 , of the Code of Criminal Procedure.
The presiding judges ROTHAUG and OESCEEY further had a habit, which was uncomfortable for the defendant as well as for the defense, of inserting a court recess in the proceedings immediately before the pleadings of the Public prosecutor and the defense, and during this recess they would call the Public Prosecutor into the court council chamber. This happened, according to my experience only in the Special Court. Every defense counsel was naturally convinced that during this conference which took place behind locked doors between the court, with prosecution but without defense, the public prosecutor was instructed as to what sentence he would have to propose, the court having already shown by its instructions to the prosecution that it agreed with the penalty which was to be imposed without ever having heard the arguments of the defense. In this attitude also I see a violation of art. 356 of the Penal Code."
THE PRESIDENT: Is that 336 or 36?
MR. KING: It appears as 36 in the English translation which you have, but that is an error; it should be 336.
That is all from this affidavit that we wish to read at this time. It is to be noted that in the English text which your Honor has, the signature of the affiant was omitted; that does appear on the original though. As Prosecution's Exhibit 223, we offer at this time the Document NG-697.
THE PRESIDENT: The document will be admitted in evidence; and we will take our usual recess at this time.
(A recess was taken)
THE MARSHAL: Persons in the Courtroom will please find their seats. The Tribunal is again in session.
MR. KING: May it please the Court, for purposes of finding our program tomorrow I wonder if it would be in order to inquire at this time if Dr. Koessl plans to proceed with the cross examination of the witness Ferber tomorrow? I appreciate that probably he hasn't received the copy of the German transcript as yet and it was on that probability that I raise the question at this time.
DR. KOESSL: Counsel for the defendant Rothaug. May it please the Court the German copies of the transcript have not yet come to me -- I have not received them yet. In spite of that I wanted to start the cross examination tomorrow. I thought that I would be able to continue the cross examination during the entire day and continue it also on Tuesday and in so doing to discuss those points which after the receipt of the transcript will be brought out by the defendant himself still. It is, of course, possible that the plans which I have already discussed with the defendant -- that they will have finished about three o'clock in the afternoon and that then I would have to ask permission to continue the cross examination on Tuesday, However, I believe that I would be able to use the entire day tomorrow in discussion the points which I have already discussed with the defendant.
THE PRESIDENT: That matter will be entirely left to your satisfaction, Dr. Koessl and if you can go ahead tomorrow and will go ahead tomorrow and if you want more time you shall have more time. Then we will begin tomorrow? Shall we?
Dr. Koessl: Yes, that's correct.
Mr. King: The prosecution will then, on the basis of Dr. Koessl's statement of intention, have the witness Ferber notified and if as the Court says, he is not ready to proceed tomorrow certainly no harm will be done and we will proceed with the further reading of documents. We ask the Court to turn to Page 58 in the English text which is page 63 in the German text. We desire to introduce at this time the Document NG-532 which will become when formally offered, Prosecution Exhibit 224. This is the sworn affidavit of Hans Groben:
"I, Hans GRQBEN, counsellor of a District Court, Nuernberg, Solgerstrasse 8, hereby give the following affidavit on oath:
"Through my nomination to the Special Court in October 1941 I have come in close contact with Rothaug. There I got to know him as a political fanatic and a choleric person. Partly these qualities and partly his great political influence with the Gauleiters and the SD (Security Service, a part of the SS) made him the most powerful and most dangerous personality in the sphere of justice at the Court of Appeal in the district of Nuernberg. This great power and position could not have been underlined more strikingly than by the nickname "Tenno" (emperor of Japan). This caused conditions of submission and servility."
MR. KING: We skip down to the bottom, the very bottom of page 58 in the English text, which is close to the top of page 64 in the German, beginning with the sentence:
"He looked upon a trial as a political meeting at which he was a propaganda speaker. There he could make a show of his political fanaticism, filling the popular masses present with enthusiasm in doing so. He had a limited choice of subjects which he repeatedly inserted in some connection. Before the meeting he called the assessors together and explained to us, categorically, as to how he would conduct the case. His word for us was law. Already at the beginning of the trial he treated the defendant as if he were convicted, and in cases where death sentences were imposed, he often drew the attention of the defendant to the undoubted result of the trial."
MR. KING: We drop now to the bottom of page 59, the third line from the bottom, which is near the top of page 65 in the German text:
"Rothaug used to influence the application of the public prosecutor mostly during the usual recess after the evidence. At this stage the public prosecutor received the last instructions concerning the demand of penalty.
"Rothaug naturally wanted to decide the verdict (through his propaganda speeches) as he had already settled it during the main proceeding.
He never did allow any contradiction, "by principle."
MR. KING: We skip now to the bottom of page 60. The last full paragraph - the beginning of the last paragraph on that page which is at the top of page 66 of the German:
"Rothaug's hobbyhorse was the decree against people's parasites which, before the enactment of the so-called decree for Poles and Jews, he also applied to Poles liable to a penalty. I have often advocated the opinion against this, during and outside the proceedings that the decree against people's parasite is not applicate to a Polo, but only to Germans.
At this basic question did not give me any peace, I wanted to state my legal reasons to ROTHAUG once more, during a railroad trip. He did not give me a chance however to speak, but told me in a categorical voice, "I do not wish to be bothered any more with this question."
"In matters of pardon, ROTHAUG represented the view that a death sentence which had been pronounced by him had to be carried out. He regarded a pardon as an interference into his sphere of power.
"Finally ROTHAUG must be characterized as a national-socialist of rare fanaticism which made him a devil as a judge and a tyrant to his subordinates. "Nurnberg, 14 December 1946. (signed) Hans GROBEN.
"Before Henry Einstein."
We offer now as Exhibit 224, document NG 532.
THE PRESIDENT: The document will be admitted in evidence MR. KING: May we turn now to page 62 in the English and 67 in the German -- I am informed it is 65 in the German. This document NNG 526, which when formally offered in evidence will become Prosecution's exhibit 225.THE PRESIDENT:
Will you repeat that document number again?
MR. KING: It is document No. NG526. It is a sworn affidavit of Robert Rauh.
"I, Robert RAUH, Landgerichsrat, (retired), residence in Nuremberg, Roomstrasse 3, hereby declare under oath:
"I became acquainted with the former President of the Special Court, Dr. Oswald ROTHAUG; when ho was still a Public Prosecutor in Nuremberg. He was, at that time, an inconspicuous official.
In 1937, he was promoted to the the position of Landesgerichtsdirektor (President of the District Court) and sent back from Schweinfurt to Nuremberg to become President of the Special Court. It was generally rumored that this was engineered by the General Public Prosecutor and Gau Chief of Attorneys, Dr. DENZLER, to provide the Special Court with an appropriate President and to acquire control of other important proceedings.
"At the time, he already had the reputation of a very severe judge; at least, he was known to be extremely temperamental. In the course of the years, ROTHAUG became one of the most influential personalities in the Justice Administration and it was said he was the actual head of the entire Court of Appeals. As a judge, he was praised for his juridical knowledge but he was, at the same time, known for his lack of consideration and his severity. When ROTHAUG became Gau group director of the judges and attorneys, he adopted, frequently, a dictatorial tone in orders or invitations to members. In 1938 or 1939 I was appointed substitute Assessor at the Special Court, Nuremberg, and took part in a session of the Special Court for the first time in April 1940. Later, I often took part in sessions presided over by ROTHAUG.
"His manner of conducting the trials was clover but rough, and the proceedings were constantly interrupted by his sudden bursts of violence that seemed to me injustified. He never overlooked any opportunity to draw attention to some aspect of the National-Socialist ideology and its conception of justice and the state. The sentences passed under his Presidency were always extremely severe; ROTHAUG invariably exploited the harshness implicit in the Nazi laws to the limit. He was never moved to pity.
His personal lack of consideration, the significance of his position in the Nuremberg Justice Administration and his connections with the highest Party officials all contributed to give him an exalted conception of his own importance and authority, extending over and beyond that of other court presidents, even of the most distinguished men, so that, under ROTHAUG one could very well say that the so-called "Fuchrer-Prinzip" was realized in actual fact.
"ROTHAUG's manner of conducting the trials crippled the efficiency of the defense counsels who felt intimidated or, at least, constrained in their presentation of the defense. With regard to the judges, the direction or control of the legal procedure was not as effective at the time ROTHAUG presided over the Special Court as it became later, because ROTHAUG, so I heard, had supposedly refused to attend the conferences of the Prosident of Court of Appeals. On the other hand, already under ROTHAUG, as I remember, the Public Prosecutors came to the judge's room to discuss the pleas of the prosecution which they were to present. However, ROTHAUG was so autocratic, he frequently found the intended please still to be too mild."
"ROTHAUG always behaved towards us, the Assessors, in a dictatorial fashion and rarely consulted us for our opinions. To oppose his wishes would have meant suicide, for his excellent party connections were both known and feared. The whole atmosphere at the Nuremberg Special Court, was, as one may well imagine extemely bad, Whenever a procedure was started by ROTHAUG in the Criminal Court of Assizes, the opinion prevailed throughout the Palace of Justice that he death sentence would be pronounced. Then he presided over any sessions in some place other than Nuremberg, particularly in Amberg, these trials invariably took place in large rooms to admit as great and audience as possible to hear him.