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)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 3 April 1947.)
THE MARSHAL: Persons in the Courtroom will please find their seats.
The Tribunal is again in session.
DR. KOESSL: I ask your permission to continue with the cross examination.
KARL FERBER - Resumed CROSS EXAMINATION (Continued) BY DR. KOESSL (Counsel for defendant Rothaug):
Q. Witness, during the direct examination you mentioned that some special courts had a record and. sport spirit, that they were making efforts to pass sentences as quickly as possible in a competitive spirit. In connection with this you spoke about the case Heller. Can you still remember this case exactly, very clearly?
A. Yes.
Q. You said that at that time you took part in the preparation of the indictment?
A. No. May I say something?
Q. Yes, please do.
A. The prosecutor who worked on the indictment, his name was Spaethmann, came into my office, recited the facts of the case to me and discussed with me the written report which he had to make to the Ministry regarding a legal question; namely, whether it could be regarded as a car trap even if the person who puts the car trap is at first a passenger in this automobile.
Q. Yes. In any case you took a helpful part in this case?
A. An advisory part.
Q. Advisory. You, as far as I remember, said also that during the trial you were in the audience?
A. Yes, that is correct.
Q. Would you please describe once again briefly the crime that Heller and the co-defendant Mueller committed?
A. At the railroad station in Nurnberg both of them hailed a taxi. They let the taxi take them in the direction of Fischbach near Nurnberg, and they gave a street address in that place. The taxi driver on the way was ordered to stop suddenly by Heller on this occasion, which practically could be described as an attack. In the brawl arising from this Heller wanted somehow to get the money out of the taxi meter.
Q. I believe, witness -
MR. WOOLEYHAN: May the Court please, at the moment a question of general import arises. The trial of this case is concerned largely with case records. Now, if on cross examination, witnesses, not only this witness but in the future, are to be asked to recount again the facts of every case that was accounted for the first time in the direct examination, endless time is going to be lost.
Now I have been following our record and all that has been elicited at the moment is what is repeated word for word in the direct examination. Now, if for purposes of credibility counsel for the defense wants to test whether or not the witness actually remembers the case as well as he said he did, that best, I think, could be brought out by more pointed questions going to one or the other specific facts of the case and not requesting a parroting of the facts all over again from start to finish. The problem is serious, I believe, and could result in much delay.
THE PRESIDENT: The Tribunal feels that nothing would be gained by having the witness again narrate the facts as he narrated them in the direct examination unless defense counsel can point out that he was wrong about some of those things, and in that event his attention should be specifically directed to where he is wrong.
Now, counsel has a right, of course, to discuss those cases with the witness, not by having him repeat, but by asking some direct fact pertaining to the case which will reflect upon the conduct of these defendants.
But to repeat and ask him to repeat these things would draw this case out to great lengths.
DR. KOESSL: I shall comply with that.
Q. Witness, during the attack was there any bloodshed?
A. I believe so.
Q. You testified here only that Heller put the pistol in the driver's back or pointed the pistol at the driver?
A. As far as I remember, the driver had been wounded in the arm.
Q. Was the driver sitting in the car when he was wounded?
A. I believe so, yes.
Q. Was Heller sitting in the car when the driver was injured?
A. I believe so.
Q . Was Heller sitting behind the chauffeur, in back of the chaffeur?
A. Yes, in the car.
Q. Thus he was behind the driver in the car?
A. It was never contested that there was an automobile trap put here within the meaning of the auto trap law.
Q. All right. Do you admit the possibility that the occurrence was in brief as follows? Heller asked the taxi driver what time it was. While the taxi driver was looking at the taxi clock at the dashboard and was leaning forward a little bit because it was dark, did the one who committed the crime from the back shoot the chauffeur through both cheeks? Is that a correct representation of the case, if I may refresh your memory?
A. The attack in this form is absolutely possible.
Q. Is it furthermore possible and true that the one who committed the crime while he was being arrested also shot a policeman through the hand?
A. That is correct.
Q. Is it furthermore correct that the girl friend, of Heller, a certain Muendler, participated in the criminal action by creating the possi bility for shooting?
A. The possibility exists that in the participation in detail - I can't remember in detail.
Q. Can you furthermore remember that this case took place only a very few days after the promulgation of the auto trap law?
A. The case was immediately - after the promulgation of the auto trap decree - it was up for sentencing. However, published sentences of other special courts had already been handed down. The legal question which was concerned in this case had not yet been decided; namely, as I just said, whether the auto trap can actually be considered as such, even if the automobile driver is not, by an external obstacle, lured into a trap but if, as has already been said, the person who is planning the attack is sitting in the motor vehicle. That was the only question which still had to be considered.
Q. Is it correct that the case was such a special one because at that time the Fuehrer happened to be in Nurnberg and and heard about it?
A. Before public prosecutor Denzler, in the courtroom, I was told by Streicher that Hitler was on the way from Munich to Berlin and that he had stopped in Nurnberg and was staying at the Deutscher Hof Hotel. That gave rise, during the late hours of the afternoon, simultaneously by Streicher and Denzler, to inform Hitler about the happening.
Q. Was it not a fact that Hitler asked for the quickest serving of the indictment and the quickest possible execution of the trial, that he had demanded it personally?
A. The pressure to speed it up was exerted by Hitler upon Denzler, when the question arose that the Ministry had upon a telephonic communication stated that it should not, by telephone, state its position in regard to the clemency plea because it was an unusual legal question. This again brought about the fact that the public prosecutor, who was serving in the Ministry of Justice, had to make excuses personally to Hitler because this was said about him. Denzler told us that Hitler was supposed to have said, "You sabotaged my law."
So the speeding up could be referred to only as being the wish of Hitler, when the authority who executes the death sentence could go into action to execute the death sentence. The indictment had been prepared in time after all.
Q. Had not the setting of the date of the trial been demanded by Hitler--that is, that it be advanced?
A. According to my certain knowledge, Streicher was just as surprised that Hitler had made a stopover here as Denzler was. This visit of Hitler's was not an announced one. However, the opportunity was used, because Denzler believed at the time that he could depose a minister, namely, Guertner, because the Ministry was so stubborn in regard to the clemency question.
Q. Can you remember that the defendant Rothaug, during the noon recess, was requested by the Reich Ministry to continue the trial of this case as quickly as possible and to shorten the noon recess?
A. That is correct, because the Ministry, in these automobile trap matters, had to be informed previously by telephone about the process of the trial, and the trial had to be speeded up and carried out very quickly. I am not saying anything against that.
Q. Therefore, I would like to find out, in conclusion, as regards the speeding up, that the special court in Nurnberg was not responsible for the speedy expedition of the trial and the effort to carry it out very quickly; that is, that the special courts were not responsible for that, but that Hitler personally, and the Reich Ministry of Justice, required a quick conclusion Of the trial.
MR. WOOLEYHAN: May the Court Please, this, in the Prosecution's opinion, constitutes argument with the witness. The conclusions drawn are the conclusions of counsel for the defense and not of the witness, and we therefore object to it.
THE PRESIDENT: The objection will be over-ruled at this time.
BY DR. KOESSL:
Q. Witness, can you remember that the defendant Rothaug at that time used the occasion in order to criticize the Reich Ministry of Justice? And do you still remember why, at that time, Rothaug criticized the Reich Ministry of Justice?
A. The criticism of the Ministry referred to was due to the fact that they wanted to prepare a more careful statement of opinion in regard to the clemency plea just because of this special legal question.
Q. Was it not as follows, that Hitler, on his own initiative, was enraged about it, that the Reich Ministry of Justice was still in doubt about this legal question, and that they wanted an expert opinion of the Reich Supreme Court as to whether the law could be applied also in regard to automobile trap robberies?
A. About the matters in this connection, I am also informed in as far as Denzler, who was chief public prosecutor at the time, reported in what manner he, in the presence of Streicher, had reported this matter to Hitler. Whether Denzler was in a position to represent the peculiarities of this case well enough, that is something I don't know.
Q. Well, that is not important for us here.
A. In any case, one thing is certain. The causing of an aversion on the pert of Hitler against Guertner was at that time among the general and political intentions of the Party, and for that very reason opinions were devided in the evaluation of this over-quickly provoked decision of Hitler's. Everything was accomplished by telephone.
Q. But this decision of Hitler's, or this opinion, was not provoked by Rothaug?
A. No, it was provoked by Denzler.
JUDGE BRAND: May I interrupt? The witness has been discussing the speed with which this decision was made. I should like to ask, what was the period of time which intervened between the indictment and the execution? I don't think we have been told how much speed was shown in this case.
DR. KOESSL: Please answer the question.
THE WITNESS: Between the serving of the indictment before the Special Court and the date of the opening of the trial, there was hardly more than one day. The two defense counsel appointed by the Court had complained that due to the presence of Gauleiter Streicher and the presence of the rest of the party leadership, a more considerable unraveling of the extent of the activity regarding the personal evaluation of the defendants was not possible.
I know from a very reliable source, for example, the list of the previous sentences of the defendants, that the character witness of the defendants was obtained by teletype because the matter was so argent.
Have I answered your question?
JUDGE BRAND: No. How much time intervened between the service of the indictment and the execution of the sentence, if you know? just answer, if you can, in hours or days or weeks, whatever it is.
THE WITNESS: Do you understand by "execution of the sentence" the execution of the death sentence?
JUDGE BRAND: Yes.
THE WITNESS: About two or three days.
JUDGE BRAND: Thank you.
BY DR. KOESSL:
Q. Was the limitation actually imposed upon the defense? Was that true? Was it actually there? In your opinion, at the time, did you consider that they were limited, as they had stated?
A. Since we were concerned with two defendants who were from a territory, in regard to their birth and their residence, which was far away from Nurnberg, as regards the evaluation of the personalities of the defendants they could not fully exploit everything and show everything. As far as the action itself was concerned, this automobile trap, the facts in the case, by the admission of the two defendants of course, had already been filed without any lapse.
Q. Accordingly, if I understood you correctly, even if they had waited for a longer period nothing would have been improved; no position would have been advanced which could have become of considerable importance for the defendants? Is that correct?
A Except for one point, and that would be the reason for a pardoning, because the death sentence had been threatened absolutely, definitely.
Q For the consideration of the clemency question the Special Court, however, was no longer competent and so that, the speeding up of the trial, the presiding judge of the Special Court, Rothaug was not responsible, did not have to be held responsible for the speeding up here?
AAccording to the regulations governing clemency pleas as well, the three judges who take part in the sentence, as well as the presiding judge, for his own person, had to state their opinion in regard to the applicability of the clemency plea. Thus in this direction, to that extent, the too quick execution of this sentence meant to a certain extent after all a deterioration, or a putting in a worse position than if we had been concerned with defendants who were of origin from the area of Nurnberg, or were residents.
Q In any case, however, the competent pardoning authority, clemency authority, could eliminate this lack itself?
A Certainly, certainly.
Q Do you know who at that time was competent for a clemency question? It was 1938.
A Yes, yes, the head of the state. The head at that time had not, as during the war, divested itself of the granting of clemency pleas, in other words, Adolf Hitler.
Q And the death sentence on the co-defendant, Muendler, of Heller, was it executed on her also?
A No, no.
Q Why was the death sentence on the defendant, Muendler, why was it not executed?
A This Muendler was pregnant, and accordingly the code of trial procedure had to be considered, according to which the execution of a death sentence on a pregnant woman is not permissible.