THE MARSHAL: The tribunal is again in session.
DR. KOESSL: Counsel for the defendant Rothaug.
THE PRESIDENT: Dr. Koessl, we remind you that you have been cross examining this witness for an hour and a quarter, and your examination after this time has been chiefly confined to the credibility of the witness, the history of the witness himself; and while we are not saying that you have reached the end of that, we remind you that you can't take too much time to a challenge of this witness. The importance of this witness or any other witness must pertain to the defendants who are on trial and we wish to therefore, as soon as you can, go to that part of the testimony that was brought out by the direct examination of this witness so far as the testimony pertains to the defendants on trial.
DR. KOESSL: May it please the Court, I ask you please not to misunderstand me if I treat this witness in more detail than I would any other witness. This witness is of importance in two respects for the defendant Rothaug. First, the witness is probably one of those who was one of the most confidential assistants of Rothaug. He has the most extensive insight into the activity and the attitude of Rothaug; and secondly, the witness is of such extraordinary significance because he is regarded by me as typical of the witnesses at the present time in general. The entire defense is extensively concerned with the question as to whether the witnesses are testifying for opportunistic reasons today after the catastrophe of 1945, and that they are therefore saying something and thinking differently from the way they were thinking and acting for 12 years. And for that reason, I would like the gentlemen of the Tribunal to be considerate if in this one case I speak to an extraordinarily detailed extent also of political questions.
THE PRESIDENT: Dr. Koessl, I remind you that you have brought out at considerable length the relations between this witness and Rothaug and perhaps other defendants, his opportunities to study the character of the defendants and what they have done, and also you have brought out at quite some length the relations of this witness to the Party and Party activities. While I am not saying you can't go any farther with that, we desire that you come to the point as soon as you can.
DR. KOESSL: I shall stay within this ruling.
CROSS EXAMINATION BY DR. KOESSL:
Q. Witness, please summarize in brief for the Tribunal in which party organizations--affiliated organizations of the movement--and connected organizations you were a member; for how long you were a member; and please state your possible activities. I ask you to be very brief and state the dates.
A. In connection with the reapplication to enter-
Q, --I do not ask you to make any declarations, but only to enumerate the organizations.
A. In 1934, promoting member of the SS; first of May 1937, that is a retroactive date, actually October 1937, member of the NSDAP--the Nazi Party; in connection with that , for ten months activity work in the NSDAP; the National Socialist Welfare Organization until October 1938; from then on, no active work until about the turn of the month and the end of 1941, beginning of 1942, upon the suggestion in the Gau to collaborate in the information office for population Poles, limited to three individual cases; furthermore, I was in the National Socialist Lawyer's League, as the professional organization; I was a member in the Reich Colonial League and a member of the Reich Air Protection Bund, Riehcsluftschutzbund. That is all.
Q. Do you know a man by the name of Ohler?
A. Yes, very well.
Q. Who was this Ohler?
A. Herr Ohler was a criminal commissar who had been active with the Gestapo in Nurnberg.
Q. Who gave Ohler his official guidance?
A. The chief of the Gestapo office in Nurnberg, who was at first the higher SS and police leader Martin; later on, a certain Mr. Otto;and after him, one who had been an Oberregierungsrat--chief governor counsel-who had been called from Berlin. I am not familiar with his name.
Q. Who gave guidance to the superior of Ohler, to his chief?
A. I suppose the Gestapo-Leitstelle, Guidance Office in Berlin.
Q. Yes, so that is the RSHA?
A. Yes, the RSHA.
Q. Did you, yourself, have any contact with this Ohler?
A. I met this Herr Ohler through my activity as prosecutor in 1936, through the gentlemen Engert and Buettner. It became that Ohler was from my home territory.
MR. WOOLEYHAN: May it please the Court, the prosecution is merely questioning at this time to what extent it is permissible to bring in personalities and subject matter clearly outside the scope of the direct examination. We haven't objected because we thought perhaps it had some comparative value, but we do object at this time.
THE PRESIDENT: It is manifestly impossible for the Tribunal to know to what this is leading an d we certainly don't want to limit him on anything that might be important; but we merely wish to admonish to not go into matters that do not directly pertain to either the activities of this witness, or to the character, the experience or credibility of the defendants.
BY DR. KOESSL:
Q. During the direct examination you spoke about the fact that Rothaug knew about matters which other judges were not allowed to see.
A. That is correct.
Q. Is it also correct that via Ohler, other than official channels, you found out a let what other judges, and in particular Rothaug, were not familiar with?
A. What I found out via Ohler is exactly that which I can say in regard to Rothaug's connection testified to, his connection with the SD, and in no way was Rothaug not informed about matters which possibly Ohler could have told me.
Q. Do you admit that you personally could explain, many things to the defendant Rothaug because you supplemented Rothaug's knowledge by handing on the information from Ohler to Rothaug. I asked you to give me the concrete facts. I am telling you, did you in every case in which Ohler informed you about something, did you also tell the defendant Rothaug about this.
A. In all matters; what do you mean by that, sir?
Q. Did you hand on current information which you received from Ohler to Rothaug?
A. I, myself, was not a man who was in the confidence of the Gestapo. Herr Ohler did not violate the oath of secrecy toward me. Therefore, Herr Ohler only supplemented the written occurrences by an oral explanation about that in connection with the treatment of the case. I occasionally discussed this with Mr. Rothaug, of course.
Q. Is it correct that in any case many experiences came from Ohler; that other judges did not have access to these sources of information?
A. In that connection, the only event that we could be concerned with could be regarding the monitoring of socalled enemy radio stations. I made the suggestion one might within the Gestapo, at least once a month, give us a lecture, an informative lecture regarding what was said about the propaganda by states who were in a state of enmity with the Reich, or via the radio what they said over the radio. However, Herr Rothaug personally did not like this suggestion because the Reich Information Service of the SD and of the party, Rothaug was informed about this; and because in that direction I wanted to know something about it; we had a need for knowledge, as we were supposed to punish listerners who listened to foreign broadcasts, be we denied ourselves to listen to foreign broadcasts. In any case one should have found out what the foreign broadcasts, the broadcasting stations were saying. It is also suitable to disturb the resistance forces of the people, and I approached Mr. Ohler, therefore, and I succeeded in that the then Police Chief Martin, later SS Police leader agreed to it that via the office of Ohler, we of the Special Court were given a monitoring report, were handed a monitoring report, and not only once but at the most about ten reports; every report about twenty pages long. However, I myself did not sit on these reports, but I also let the other members of the Special Court read them.
Q. Is it true that these reports regarded almost all spheres of life because the enemy broadcasts made it the basis of their broadcasts; that everything was a basis of the Special Courts' jurisdiction?
A. In these monitoring reports we were concerned with as far as I remember, to the best of my memory, with reporting lieterally the statements of the foreign critical authorities regarding the treatment of foreigners in the Reich and above all it was a question of prisoners of war in the Reich; the contact of the German population with the prisoners of war, the transportation system, and I as a Member in particular, the occurrences of certain possible attacks on transportation trains.
Q. Is it therefore true that you were making efforts to get positive documents in order, as a judge, to be able to appreciate the cases in their full significance?
A. Because it seemed of extraordinary importance -
MR. WOOLEYHAN: May it please the Court, the present witness is not on trial here, and the Prosecution objects to this probing of activities outside the scope of the direct examination completely, which have no apparent relevant importance to the activities of the counsel's client. It is more or less a similar objection to the one made previously, but the situation seems not to have improved.
JUDGE BRAND: I think that Counsel for the Prosecution undoubtedly understands that the Court recognized the right of the Defense to attempt as best it can to show that this witness is to be doubted as to his credibility. In other words, they are entitled to show, if they can, this alleged change of attitude of which counsel spoke, owing to the socalled disaster of 1945. I think it is clear that the Court recognizes fully their right to cross examine the witness as to matters of his credibility; and the only limitation that can be put on is a discretionary limitation to the end that the cross examination to credit should not be unduly extended.
Not, what the court is interested in is to impose a reasonable limitation on cross examination which, in effect, attempts to try the witness instead of the defendant, and we do desire that counsel as soon as he can, subject to this reasonable limitation, should cross examine fully as he desires concerning statements made by this witness which relate to the alleged-conduct of the defendant. We do desire to get at it as soon as he can, but we do not feel that we should limit in cross examining to credit.
MR. WOOLEYHAN: That is the Prosecution's only contention -- as soon as possible.
BY DR. KOESSL:
Q. Witness, do you in so saying admit that the rest of the judges, the other judges also, were very well informed about political events and matters, and that thus Rothaug did not have a special position regarding the information which he received in political matters?
A. The favored, position of Herr Rothaug was that the Reich Information Office, that is the party and the SD, gave him their information; sources they made available to him which were closed to us in every case. My attempt via Herr Ohler and Otto to get a limited view into the background was foiled very soon after Herr Martin became Chief of the Gestapo office and was not in any agreement with handing over such information.
Q Did the Information which the SD, that is the Sicherheltsdienst of the Reichfuehrer SS, the Security Service of the Riegsfuehrer SS, did they concern them solves with o-ther files than information which the Gestapo had?
A The monitoring reports about which I was speaking before was -- that was made here in Nuernberg by the state Police office, and was handed on by then, and it was again forwarded to the Reich offices in order to be properly evaluated in the meetings and coucils. Even outside of these counsels, in discussion, Herr Rothaug referred to the treats of the foreign problem, espeically the Polish question. He based his statement on a source of information to which we did not have any direct access.
Q Do you mean by this source of information the SD?
A I know, there was two sources of information: One was called the party information letter or something like that. This letter was received by the medium high effect, office, that is the Oberlandsgerichtspresident and the Public Prosecutor, as a secret matter. We could not see this or discuss it. They were not made accessible to us. And in addition, there was another information service. In the Reichssyab of the SD -- about this Rothaug himself, did not speak very often to be sure, but occasionally.
Q If Rothaug occasionally spoke about the information he received form the SD, what kind of cases was this information concerned with? Was it usually general moral reports about the effects state measures, about the effects of the Fuehrer's speeches, and-so-forth, or was it the information which concerned the individual case?
A In the main, it was a report of the principals of the Reichlevel. This was what we were concerned with. In order to met these, the coordination of foreign workers, in that sense, we discussed this; that on the whole seen in its totality, the foreigner was a constant danger -- presented an extraordinary source of danger, argument, which Rothaug refer red to in this connection, that it was necessary with all severity to meet the already first of exesses.
Q Did this information concerned actual matters, that the insubordination of the Polish workers in the Riech were mentioned?
AAccording to the representation which Rothaug made to us, yes.
Q How did this -- Was this Information distingued from the information which the Gestapo gave you?
A The regular broadcasting monitoring reports, and that is the only thing you could be referring to. They were speaking in a critical manner about the bead treatment of the foreign civilian workers in the Reich. In these reports-monitoring, it was expressed that this treatment should be approved, that there was a contradiction of the argument which we got from Herr Rothaug. And that the information which we received in the future -- I have already said there were about ten such monitoring reports which we were given, and the information which we could gather form them -
Q Were you at any time, of the opinion that it was helpful basis from the judicial activities, that in the manner described, the situation and to be seen as well from this point of view as well as from the other point of view?
A This need for knowledge I had, Yes ,I wanted to know where the actual truth was.
Q Do you mean to say that the defendant Rothaug, at that time, did not have this desire for knowledge?
A From my observation of the actual statement which Herr Rothaug made about these cases which were brought to trial, I gathered and with all due right, that the information which he got from the party office were preferred by him absolutely. That he considered them in the first place because he argued constantly if it was said, for example such insubordination in the place of work -- sexual misdemeanors, attacks on farm wives; he brought up these arguments so often and to such an increased extent, and in that way kept them in balance in his argument, that seen in its entirety measured by the standard of the entire Reich the danger would have to be met in all its severety. All figures which we got in our Oberlandsgerichtsbezirk, in the district of the district court of appeals, was for us, at least, it made us up the question and bring it up again and again for discussion, because we noticed, we thought that such a frequent occurrence -- we could not determine that for our own district.
Q Did you also have misgivings and think about the following question: Why civilian crimes in the district of the special court in Nuernberg occurred to a lesser degree, in smaller numbers?
A Yes, the thought that lead to the assumption that the reason was that they were scared of, that this had been achieved because by the trials which were held in the most remote localities, the reaction of the State could be seen.
Q Was it a fact that the defendant Rothaug was aiming at a contact with the population during these trials, at a close contact with the population?
A The purpose of the trials at the locality where the crime occurred was always regarded by Rothaug as an absolutely propagandistic purpose to the effect that he said that people should see that after, we according to the principals -- he quoted a sentence from the Bible, " My father trianed you with a whip; I shall train you with scorpions."
Q We started from the assumption that by conducting trials in remote localities, Rothaug was aiming at on enlightment of the population, and that he achieved this, too as you say from the effects of his conduct of the trial, is that correct?
A Yes.
Q Now, you also covered the following on the direct examination: How it happened that Rothaug was called to Nuernberg. You stated that you were familiar with the conditions at the time, and that this you could observe the entire event, I mean the course of events. What case was of particular -- was the first penal chamber active particularly working on. Was is not the case Stegmann?
A. Acoording to my certain knowledge the Case Stogmann was in tho Special Court. Landgerichtsdirecter Dietl was judge and in the penal chamber.
Q. Can you remember that Rothaug after his transfer here to Nurnberg took - was handed the case Stegmann?
A. There were two cases Stegmann. One Case Stegmann had been judged already. Then Rothaug came to Nurnberg. The second Case Stegmann could at first not be judged because the files had disappeared in a manner which could not be accounted for for some time. One assumed that followers of Stegmann had stolen the files. Then the files on one day via Office Munich cane back to Nurnberg and then in 19 just a moment, 1939 could be -- toward the end of 1938 Rothaug dealt with the case because the former Bavarian Roman Public Prosecutor Reinhold was the public prosecutor and subsequently to this case he was transferred -- he was promoted -- transferred to the Office of Public Prosecutor and that was a few months before the war started.
Q. The Stegmann case was thus, as far as you remember, had no connection with Rothaug's transfer from Schweinfurt to Nurnberg or is it possible that it had such a connection?
A. At that time --
Q. I mean, is it possible?
A. Well, the possibility could exist.
Q. All right, then, let's leave this subject. During the direct examination you said that Rothaug's predecessors at the Special Court had been attacked from a political side. That acts were those?
A. Those political attacks consisted in that, for instance, Herr Dietl or Herr Griener and before Herr Weissensee, were reproached with the fact that they were not in a close contact and collaboration with the local political officers.
There was no social contact and no contact of a personal nature and Herr Denzler, as Gauleiter in the NSDAP repeatedly made remarks about this. In our office in the Public Prosecutor -- the Public Prosecutor's Office, a Herr Buettner as well as Herr Denzler told, about the turn of the year 1937, that efforts were being made to bring here from Schwein furt to Nurnberg Herr Rothaug.Then the relationship would be considerably changed. That is how I remember it, certainly from conversations with these two gentlemen I mentioned.
Q. Did the predecessors of Rothaug get any disadvantage when they were transferred?
A. One of them. The one's I named , Herr Dietl was sent to Bamberg as President of the Senate. Herr Krueger became Presiding Judge of the Amtsgericht Local Court,when Herr Benz became Public Prosecutor. Then there was still the question that the last predecessor of Rothaug, Herr Greiner became Deputy Landgeriehst President, Deputy District Court President.
Q. Because if I understood you correctly, the predecessors of Rothaug after they left the Special Court were promoted?
A. Yes, it was regarded as such in general -- generally.
Q. And what did the judges in Nurnberg and in particular Denzler, the Gauleiter of tho Jurists - of the judges -on what did they base their opinion that Rothaug was an especially active man in political matters?
A. The two gentlemen answered my question as to who Herr Rothaug was, who was supposed to come here. They told me that he was in the Tannongerg League, House Ludenderff, that he was a convinced follower of the Nazi regime, who, without any compromise was interested in the execution and the realization of the National Socialist ideology of the State and as I used to say:
"bourgeois reminiscences." Furthermore, it was mentioned that he was a friend of Herr Haberkern.
Q. The question Haborkern we shall deal with later on. At first we are discussing the Ludenderff Movement now. During the direct examination you admitted that Rothaug was not regarded as absolutely acceptable and properly considered by the Party officers. By that even Herr Benzler had to eliminate opinion for higher Party officers when Rothaug became Presiding - was supposed to become Presiding Judge of the Special Court?
A. The facts are as follows: The appointment of Rothaug to Nurnberg had to be approved also by the Ministry of Justice, by the competent personnel Party officers -----Party personnel officers and there was a denounciation in the Munich Party Office against Rothaug which referred to his membership in the Tannengerg League. Herr Denzler mentioned that with the support of the Party Gauleiter he was in a position to do away with it.
Q. The Munich Offices, however, were the Gau Party Offices, that is, the Reichleadership?
A. Yes.
Q. Are you informed about the following: That the Reichleadership of the Nazi Party even as late as 1941 had doubts about the political attitude of Rothaug and expressed these doubts by stating that Rothaug was not a National Socialist but a follower of Ludenderff and that he solely found himself - considered himself bound by the Judge's Oath?
A. About this, it was in 1941 this matter was discuss ed in connection with the case when the Reich Minister of Justice wanted to send Rothaug to the General Government of Poland. That is how I remember this occurrence, only at that time it was so that the competent assistant in the Ministry in Berlin soon after it became known that Rothaug had been ordered to Poland, the SD and the RSHA asked that Rothaug remain in Nurnberg or succeeded in having Rothaug remain so that there was no question about his transfer to Poland. In this larger contest then this doubt from Munich about Rothaug was solved, I believe that it is also connected with the fact that at that time there was a general change in the Party politics in the Gau after Streicher was no longer present and these who had been commissioned for the leadership of the Gau and that they were better informed, which Rothaug was better informed about the possibilities.
Q. And that is the Party according to your statement now that at the end of 1937 when he was appointed as Presiding Judge of the Special Court and in 1941 had doubts in the political reliability of Rothaug and expressed them?
A. These doubts, Rothaug told us himself with the words: "I am considered a rebel and not a revolutionary."
Q. How did you know that the Reich Ministry of Justice was in contact or entered into contact with the Reich Chancellory when the Presiding Judge of the Special Court Nurnberg was supposed to be appointed?
A. In 1937 you mean? Yes, at that tine Gauleiter Denzler told us that.
Q. Do you know who appointed the Presiding Judge of a Special Court?
A. When Herr Rothaug had been transferred to Nurnberg according to the law, of course, the Oberpresident had to take a part in the appointment and that was in the year 1937.
I believe it was already Herr Doebig. It also could be Herr Bertram.
Q. That is not very important. I only want to know did the Reich Ministry of Justice get in touch with the Reichleiter?
A. Because of the appointment to the Special Court, no. I don't believe so.
Q. You said that the followers of the Ludendorff had become acceptable to the Party when Hitler and Ludendorff had met in Munich. Is that correct?
A. The visit of Hitler to the sick-bed of Ludendorff?
Q Did you observe in regard to Ludendorff followers that this meeting between Hitler and Ludendorff had influence upon the political evaluation of the Ludendorff followers in party circles?
A I only knew three members, that is all followers of the House Ludendorff here in the Palace of Justice, Amtgerichtsrat angebrannt, Herr Rothaug, and Herr Schroeder I could not make any further observations.
Q It is not your own personal observation that the followers of the House Ludendorff, due to the meeting between Hitler and Ludendorff, became acceptable to the Party?
A Insofar I can only -- have only repeated a statement from those times which was meant sarcastically and ironically, because the persons mentioned were referred to in that manner that they had become acceptable to society after the meeting.
Q Did you observe what effects those so-called reconciliations had in regard to Rothaug's position to the Party?
A Here locally in Nuremberg there were few changes practically none at all, because Rothaug was always regarded as a full-fledged member by the competent Party officials here. Beyond the Gau leadership I have no experience with that.
Q Can you remember when the meeting between Hitler and Ludendorff occurred?
A It was, as far as I remember, at the beginning of the war.
Q When did Ludendorff die?
A That I can't say by heart. I don't remember.
Q 1935. You knew Rothaug only since 1937; is that correct?
A I believe, defense counsel, you are mistaken.
Q Well, we can find out about that. How long did Rothaug bring writings from the House Ludenforff, from the organization Ludendorff, into the office? Did this happen obviously and often?
A When I moved into his office in 1943 I still removed from his desk such Ludendorff writings -- journals, and these were not very much out of date.
MR. WOOLEYHAN: May it please the Court, this Ludendorff ground has been ploughed up in the direct examination and thoroughly reploughed now by the defense, but at the present time I can't see that the cross examination has ploughed any further than the direct did, and the Prosecution is hopeful that it will take a now tack before too much longer.
THE PRESIDENT: The Tribunal feels that it might be well at this time to pass to some other subject.
BY DR. KOESSL:
Q Witness, do you know in what manner Rothaug became acquainted with Haberkern in the Blauen Traube Inn?
A According to Rothaug's own description, he knew Haberkern already for many years, also before 1933 already from a time when he was in a locality south of the Danube in the lower offices of the Justice Department, and there Haberkern was active as an innkeeper. In any case, Rothaug described it in this way once.
Q Is it true therefore that the acquaintanceship of Rothaug with Haberkern was not a political nature, but purely of a personal nature and for personal reasons?
A The meeting of the two could have been just a happening -- accidental.
Q During the direct examination by your mentioning of the table in the Blauen Traube Inn did you want to express thereby that in this manner the political power position of Rothaug could be explained by his going to this Party table?
A Not explained, but this participation in the Party table at the Blaue Traube was a further means to meet the guests, when the guests who were admitted to this Party table who were politically reliable, it was a means for them to be honored and evaluated properly as acceptable to them.
Q Thus you ascribed a political meaning to this table?
AAs far as the hereditary table was concerned, and which continued after the changing of curfew hours.
Q To this circle which was admitted to the table and who had their full confidence did you yourself, witness, belong to this group?
A No.
Q Did you ever participate in this club table?
A No.
Q Did you or other associate judges of the Special Court or public prosecutors participate in this club table?
A In the club table of the Blaue Traube Inn, Rothaug, Haberkern, Kreisleiterr Zimmerman, higher SS and police leader Martin -- then from the SA and SS some leaders, above all also from economic circles, and that is -- I mean Party economic circles, some gentlemen. According to my own information, only Rothaug was part of their circle. In addition to that, there were opportunities, occasions on which outside of this circle of the club table on other days than the day on which these people met at the same table at which they met Herr Schroeder was sitting or Herr Engert. Also Herr Oeschey. Occasion ally also myself.
But that was not the political club table which, above all, after the end of the curfew, continued to meet.
Q Did I understand correctly if summarizing I say that the club table was always considered to be political on the occasions when you yourself were not present and that it was always without any political significance when you were present?
A No, sir. That is not how I answered the question at all. If there was an occasion after, for instance, a meeting of the National Socialist Lawyers' League, which perhaps had the pleasure to hear Herr Haberker as a speaker, because as speaker before the NS Lawyers' League Haberkern was allowed to appear, then there were groups who met and gathered in order to have a glass of beer in the Blaue Traube Inn. If in connection with that it happened that one group sat at tho table at which usually the club met, then it was not a club table meeting on this occasion.
THE PRESIDENT: We have reached the time for our usual noon recess and we will therefore adjourn until onethirty.
(A recess was taken until 1330 hours)