he preferred to stick closely to the case records and by far did not maintain that thorough grasp on the whole material of a trial which had been apparent under Rothaug. Loss of temper and insults at the expense of the participants in the trial occurred not infrequently under him. They were, as befitted his character, even more crude than those of Rothaug.
"Geschey, like Rothaug, was a fanatical Nazi who consistently interpreted and enforced the law in accord with Nazi ideologies. He did not permit humane considerations and restrictions to interfere with his methods. He occasionally gave criminal cases a political interpretation which was not borne out by the facts."
Skipping down five lines: "In the case of Strobel, which was recently called to my attention, the Nuernberg Special Court under Oeschen's presidency in 1944 sentenced to death a defendant, who had been convicted previously, as a dangerous habitual criminal, although he was charged solely with a violation of the Law Malicious Political Attacks on State and Party and had been convicted on this count alone. As was evident in the protocol, the attention of the defendant had not been drawn to the charge in the legal interpretation of his deed. This, doubtless, was unlawful. In general, it is dubious whether a violation of me "Heimtueckegesetz," being a political offense, would suffice to recognize criminal inclinations in the perpetrator and to classify his character as that of a dangerous, habitual criminal."
We do not at this time especially wish to call the Court's attention any more to this affidavit, except to note that it is signed by "Friedrich Doebig." We therefore offer the Document NG-624 as Prosecution's Exhibit 236.
THE PRESIDENT: The document will be received in evidence.
MR. KING: May I ask the Court to turn to page 31 in Document Book III-I; it is also 31 in the German text. This is an additional affidavit of Friedrich Doebig; it is Document NG-625, and will when formally offered in evidence become Prosecution's Exhibit 237.
We would like to begin reading from this document about five lines from the bottom of the first principle paragraph: "On 1 October 1937 I was given the vacant office of President of the Nurnberg District Court of Appeal. At the instigation of tho Gauleitung of Franken I was transferred to the Reich Court as President of the Senate by minister Thierack on 1 July 1943 because of political unreliability."
We now turn to page 32 in the English text; that is also page 32 of the German text, beginning three lines from the top in the English text?. "More and more he gained entry and hearing with high and highest Party agencies."
in my opinion he obtained this connections especially through his active friendship with the former innkeeper and Gau inspector HABERKERN, who ran the restaurant "Blue Crape", where the Partys representatives used to stay and were Rothaug was a frequent visitor. It was generally said, that Rothaug had a regular table there and around which he assembled his intimates followers, and were judicial matters were also discussed. From my own knowledge, I can say nothing about this because I conscientiously avoided at his disposal. Sometimes it was rumored that he collaborated with the SD and thus kept up connections with the Reich Security Main Office. But I was never get reliable information about this during official activities in Nuremberg" We turn now to page 33 of the English text, which is near the bottom of the German text, page 33, also, beginning with the second paragraph:
"A very dark chapter in Rothaug's Activity is the way in which he presided over the special Court. Quite often this was so uncontrolled that I felt it unreasonnable for the accessors to have to sit and administer justice of the same bench as this president. For instance in the well-know trial against the two chaplain Schmidt and Fasel for indicent assault, when the co-defendant Fasel, after the interrogation of a female witness, again asked to be allowed to speak, it was plainly shoking for ROTHAUG to roar at him maliciously "Shut up you dirthy priest". This incident which happend before I took over as president of the District Court of Appeal, and rumors about other misdemeanors of ROTHAUG caused me, after I had taken over as President of the Court, of Appeal, to participate in the sessions of the Special Court as often as possible. I became an aural-witness of the repulsive way in which ROTHAUG troated the participants in the trials; of now during the hearing of defendants he made derisive remarks, and how especially with defendants who would probably receive the death sentence, he refereed cynically and sometimes even sadistically to the fate they had to expect and how with witnesses, especially defense witnesses, he used harsh langua ge, in short he gravely, abused the first duty of a judge, to direct the trials objectively and without prejudice.
Sometimes I could not rid myself of the impression that ROTHAUG approached a case with a preconceived opinion and directed the trials and the whole proceedings according to this opinion. He kept a tight he cut them quite unjustifiably short." Skipping the next paragraph, we begin "It is a well-know, fact that the jurisdiction of the Nuernberg special Court under ROTHAUG's presidency was of an excessive severity, sometimes scarcely compatible with normal conceptions conceptions of justice. It is not surprising that ROTHAUG was sometimes called "the bloody judge" or the "hangman" of Nuernberg I heard later on that in legal circles he was (even supposed to have boasted about this nicknames. This brutal attitude can only be explained by the fact that ROTHAUG, in his political fanaticism, though of himself as a judge who was singled out to boost National Socialist Law and to act as a champion of National Socialist conceptions of Law, whereas for the majority of the German.
Judges the fatal Reichstag resolution of 26 April 1942, which belongs to the darkest chapters of German legal history, came as a severe blow, ROTHAUG, considered it as an act of liberation. He had often expressed the opinion that one day at least the administration of criminal justice would be taken over by the Ministry of the interior, i.e. by Himmler."
This is all of this document that we care to especially direct the Court's attention to at this time. We suggest, however, that the Court would find it of interest to read further than we have read aloud here this afternoon. We, therefore, offer the document, NG-625, as Prosecution's Exhibit No. 237.
THE PRESIDENT: The document will be received in evidence.
MR. KING: That completes the documents from Book III-I. May I ask if the Secretary General has brought this afternoon the Book "L". There are two documents in Book "L" which the Prosecution would like to present at this time, with only brief explanations and without reading. The remainder of Book "L" we will try to present next week. May I ask the Court to first turn to page 164 in the English text, and that is page 143 in the German. This document will be referred to occasionally in connection with some of the case records that are being presented by the Prosecution. It purports to be, and the Prosecution maintains that it is indeed a list of death sentences pronounced by the Special Court of Nurnberg, and carried out pursuant to those sentences. The Court will notice on page 169 in the English text that the list is signed by Paeumler, who was Inspector of Justice at the time.
THE PRESIDENT: Do we understand that in each and all of these cases the defendant Rothaug had a part?
MR. KING: No, your Honor should not draw that conclusion from the fact that the list is being presented. The defendant Rothaug and Oeschey in many of these cases were either the presiding judge, the president of the court, or sat on the court which passed the death sentence, but we don't at this time link the death sentences up with any particular judge. As I said at the outset, we will refer to these from time to time and we want to get the list in evidence.
THE PRESIDENT: I would like to inquire whether inasmuch as the dates -
INTERPRETER: Your microphone is nor working, your Honor.
THE PRESIDENT: Mr. Prosecutor, I can cake myself heard, I think, without the microphone, and I will not make any further remarks about this, and you may proceed as though I had not interrupted you.
MR. KING: We are not operating without the aid of science, I take it. I want to say just one word in connection with your Honor's question.
I think it is clear from the statement which appeared on 167 of the English text that this may not be the complete list of death sentences pronounced and carried out, but it seems to be the most complete list which can be produced under the present conditions. I think the fact that it is not complete will have no bearing on subsequent use to be made of it by the Prosecution. We will limit our reference to the cases that appear.
THE PRESIDENT: Nevertheless, you are offering tho entire exhibit in evidence?
MR. KING: That is correct, Your Honor, as NG-409. We offer it as Prosecution Exhibit 238.
THE PRESIDENT: It will be received in evidence.
MR. KING: I have one more document in the Book 3-L that I would like to present at this time. It is the Document NG-637, and will become, when formally offered into evidence, the Prosecution Exhibit 239. It is to be found on page 172 of the English text and page 155 of the German. It consists of abstracts from the volume of International Law by Hyde, Second Edition, 1945, from Volume I, Part II, entitled, "Normal Rights and Duties of State." We wish at this time to offer the document into evidence without further reading or reference at this time. The Document 637, NG-637 is therefore offered as Prosecution Exhibit 239.
THE PRESIDENT: Let us have a clear understanding. You are not offering the entire volume?
MR. KING: No; just offering the excerpts which appear in the document NG-637.
THE PRESIDENT: It will be received in evidence.
MR. KING: Thank you. Unless Your Honors have further statements to make--or there are further statements from the Defense--I am afraid we are going to end this session ten minutes early, for the Prosecution has no more to offer this afternoon.
THE PRESIDENT: We will at this time recess until next Tuesday morning at 9:30 o'clock in the regular room where this Tribunal has been holding its session.
(The Tribunal adjourned until 8 April 1947, at 0930 hours.)
Official transcript of the American Military Tribunal in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nuernberg, Germany, on 8 April 1947, 0930-1630, Justice Carrington T. Marshall presiding.
THE MARSHAL: Persons in the courtroom will please find their seats. The Honorable, the Judges of Military Tribunal 3. Military Tribunal 3 is now in session. God save the United States of America and this honorable Tribunal. There will be order in the court.
THE PRESIDENT: Mr. Marshal, you will please ascertain if the defendants are in their places.
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of the defendants Rothaug and Engert, who are absent due to illness.
THE PRESIDENT: Let the proper notation be made.
MR. WOOLEYHAN: May it please the Court, the prosecution has taken the liberty of making available the first thing this morning the witness Ferber, in the hope that cross-examination could continue at this time.
THE PRESIDENT: It may be so ordered.
DR. KOESSL: May it please the Court, I ask for permission to continue the cross-examination of the witness Ferber.
THE PRESIDENT: You may proceed.
KARL FERBER (Resumed) CROSS-EXAMINATION (Continued) BY DR. KOESSL:
Q. Witness, is there any connection between the defendant Rothaug and political propaganda?
A. I did not hear your last words.
Q. The reproach that the trials conducted by Rothaug were political propaganda - is that a new reproach or was it mentioned before the war or during the war?
A. That reproach was raised for the first time when the trial of Schmitt-Fasl was being conducted. That was in the summer of 1937. At that time the expert, Mr. Emmert, later Oberlandesgerichtspraesident (President of the District Court of Appeals), talked about the fact that it had not been his intention to conduct the trial in this manner - the trial of the two priests.
Q. Thus, who raised this reproach?
A. This reproach came from the circles of the Judicial Justice Administration.
Q. How did Rothaug react to this reproach?
A. It was mentioned that in the trial of these two chaplains, Schmitt-Fasl, Rothaug had a man removed from the court chamber who he thought was a Jew. Actually this man was a Roman university professor who had heard about this trial on his way through Nuernberg and had now appeared in the audience.
Just this incident caused some excitement because there had to be an excuse made.
After this trial Rothaug said that the people had to be taught the National Socialist manner of conducting a trial and in this sense he said things along these lines. He said that the people would not understand if there was a relatively high penalty imposed upon some statement or other; the political grounds for their understanding of the action by the State has to be prepared. At that time, in 1937-1938, Rothaug was in charge.
I told this to Daenzler, at that time the Gaufuehrer of the NSDAP, who was the Chief Public Prosecutor, under whom I was working. I reported about this to him, that Rothaug said, "I feel obliged to continue the National Socialist revolution within the framework of judicial procedure."
Q. Is it correct that the strict laws, for those of political inexperience, were a great danger?
A. The strict laws? I mean those which brought about a framework of justice which was no longer in accordance with a normal one were criticized, only not before 1939. To that extent it was proper to point out these strict threats of penalty to the public.
Q. Is it correct also that the population could not be informed in any other way about this danger than by going into the matter of the State doctrine theory?
A. I know that in 1939 laws which mentioned the death penalty as the highest State penalty were introduced by the Ministerial Council for the Defense of the Reich and in that connection there was a propagandistic introduction by the Ministry of Propaganda at the proper time, that is, at the local places. In the districts the population found out about the execution of these laws by means of punishments. I am thinking, above all of black market slaughtering.
Q. Did Rothaug speak with you or any of his other colleagues about this, that this manner of conducting a trial was being used by him just for that very reason, so that the necessary penalties could be justified for the population, or the public, and that the general public would be warned sufficiently?
A. The statement of Rothaug in regard to this theme clarifies this in a very picturesque manner. He said that one had to spread fear and terror. That was according to the principle, "You may hate me, if you only fear me."
At the end there was also talk about the fact that he represented the point of view within the audience to make them understand a sentence propagandistically, according to the National Socialist philosophy.
Q. What was your own attitude at that time toward the education of the population?
A. I myself, since July of 1941, as Deputy President of the court, occasionally conducted trials which Rothaug had referred to me as being, at that time, the President. In my own manner of conducting a trial I had an opportunity, in trials regarding black market slaughtering, as well as public enemies, criminals who had been indicted under the Malicious Acts Law - I had to point out that the reaction of the State was a strict one, especially in cases where we had to balance the question of the food problem, and we had to balance the relationship between city and country, and that, seen on the whole, this strict threat of punishment, which was made by the laws, was not a pleasure to apply in the individual case, to be sure, but in the framework of the just extent, it simply had to be applied.
Q. As far as you remember, how large was the interest of the population in the trials of the Special Courts?
A. Experience showed that there was a considerable difference. If, when we had trials here in Nurnberg or in the outlying areas -in a normal trial here in the Special Court in Nurnberg, which had not been announced by the press, the interest of the population was not especially large. There could not be as many people who could come in the city to attend the trials because of the general commitment of labor. If a trial had boon announced, that is, a sentencing of a deed which aroused or which from general interest could be expected, then there were more people who attended the trial. The trials in the districts outside of Nurnberg had the following form: At a trial at a distant local court, the courtrooms were filled because usually there was the sentence -- it was a question of sentencing a case in which concerned a man or woman who was known in the entire locality.
Q. Question.
A (Interposing) I am not quite finished, sir. If there were cities like Regensburg, Amberg, Weiden or Straubing, the interest was again somewhat more because that was -- the local political office had mobilized a certain audience of a certain city.
Q. As far as you remember, how large were the courtrooms in the local courts; for example, of the local court of Neumarkt and Upper Paletine?
A. The local courtroom of the local court of Neumarkt was, well,-in relationship to the general size of the other local courts. It was obviously a small courtroom. When I was already, at the time, when I was still public prosecutor, the leading question was to either bring the case into Nurnberg or try it in the room in the Rathaus, the Mayor's Town Hall. That was the room in which the Communal Counsel of Neumarkt met.
Q. Can you remember that in Amberg the trials had to be conducted in the Town Hall because there had been some difficulties because of the courtroom, and also in Regenburg?
A. About these conditions in Amberg -
MR. WOOLEYHAN: May it please the Court, the Prosecution objects to this line of questions. I cannot remember at any time during the direct examination in which the Prosecution attempted either directly or by inference, to establish the fact that the size of a courtroom had any relationship to the case.
DR. KOESSL: May I say a word in answer to this, your Honor?
THE PRESIDENT: Proceed.
DR. KOESSL: The Prosecution reproached the defendant Rothaug that for purely propaganda reasons he had gone to larger courtrooms. The witness has also said something in regard to this, and said that it would have been better to use the courtrooms at the place - at the local place where the trial was being conducted. I am limiting myself only to two or three localities in order to point out with these examples that the external forces consisted -
THE PRESIDENT (Interposing): The objection will be overruled. Go ahead with your questions.
Q. Do you remember the difficulties with the courtroom in Amberg?
A. The conditions in Amberg, I know more in detail because I, on the 1st of May 1943, together with Landgerichtspresident Schmidthammer, conducted a trial in Amberg because of the return of OO I had a meeting with the Landgerichtspresident regarding the return of courtrooms in Amberg. The conditions in Amberg were as follows: The district court was separated from the local court. The presiding judge of the district court was -- he wanted to put a courtroom at our disposal regularly for our trials, and in the course of the years 1940-41, occasionally it came about that we were to refer to the local court.
Q. Witness, I believe you do not have to go into too much detail.
A. Well, there was only somewhat more external connections which brought it about that the large hall in the Town Hall was accepted by us, and that Kreisleiter Kolb was an intermediary there in Amberg.
Herr Rothaug kept this room after the Oberpresident had said that he was willing to defray the cost. According to my ability to judge the situation, however, in the course of the months it would have been possible after all to make a better -- to establish better relationship with the administration of justice in Amberg and to return to their rooms as I did it myself, after the first of May 1943.
Q. Now, let us summarize: Can we say this, that local differences could be overcome and that the President of the District Court of Appeals had approved to hold the trials of holding the trials in other rooms?
The Oberpresident in this one case of Amberg, namely, had to be asked any questions, and that was because of -- in the case, in regard to the Town Hall in Neumarkt, the room there and in Kahm, the use of the Town Hall, they were paid by the local administration, through the intermediation of the Kreisleiter of Neumarkt and through the intermediation of the Kreisleiter of Kahm.
Q. Did the defendant Rothaug have any contact with the Kreisleiter at Ansbach? Answer, yes or no.
A. Until after the war, after there had been a change, when there was a change in the appointment of the Kreisleiter of Ansbach, there was no contact with the Kreisleiter Ansbach observable as Rothaug in general did not have any special contact with the district Ansbach.
Q. And, how about the Kreisleiter in Rothenburg. Answer, yes or no.
A. A Trial was once held through his mediation, one trial that I know about.
Q. In Neustadt?
A. That I don't know.
Q. In Weiden?
A. The Kreisleiter in Weiden was outside of the territory.
Q. Did Rothaug have contact with him?
A. No, no, I can't say.
Q. With the Kreisleiter in Regensburg?
A. The Kreisleiter in Regensburg did not appear in this contact.
Q. And, in Straubing?
A. Rothaug was corresponding with him, two letters were exchanged and then it was interrupted.
Q. Did you ever see the Ortsgruppenleiter of these cities in Rothaug's office?
A. Well, I cannot answer that just like that. Partly there was a personal union between the Mayor and Ortsgruppenleiter, one man held the same position simultaneously. I would not like to answer that question.
Q. Since you arc talking so much about the cooperation with Rothaug, with the Party office, I would like to ask you to mention all of the Ortsgruppenleiters to enumerate them for me, Who, in your opinion or your own observation cooperated or collaborated with Rothaug?
A. Here in Nurnberg, there was Kreisleiter Zimmermann, then in the direction to the East, Austria and Kahm Kreisleiter Kolb. Kreisleiter of Kahm, his name was Schlemmer. Then in Neumarkt, Kreisleiter Dozer. That in the main are the parties of which I was thinking of when I was talking about.
Q That is in the north part of Bavaria, according to this, he knew about three Kreisleiters; is that correct?
A Yes. Half of Bavaria, north of the Danube, as you said, Rothaug probably knew more Kreisleiters, but those who had any connection with the trials; it was only to the extent which I just mentioned. I know, for example, that the Kreisleiter of Munich, I might also mention, had contact with Herr Rothaug exactly as a party officer, in writing, and it was so that the essential connection of Rothaug with the party did not appear so obviously in the external contact with these Kreisleiters and Ortsgruppenleiter but rather as party connection toward us and his circle of collaborators was manifest by his social contact, his orientation, his information, with the important party leaders here in Nurnberg; in a similar manner, after all he was a leader of the Gau and Haberkern was one of the best friends of Rothaug and that in itself shows that in meeting with Haberkern and Zimmermann Rothaug was at the top of the Gau administration and that he received information from them; and how often on official calls the "die Jante" was mentioned. This was the code name for the SD, die jante; if somebody called and Rothaug was not there was on his desk a piece of paper, a note by somebody who had received the telephone call and this said your aunt has called; and in the course of the months and years this increased to such an extent that it is absolutely not a product of my imagination, a phantom of imagination, but it really happened, it is an experience that I had.
Q What questions were discussed when you, together with Rothaug and Fischer and with Zimmermann were in the Blaue Traube.
A In the presence of Herr Zimmermann I never sat with Mr. Rothaug because that is a fundamental difference, counsel, which I made at the beginning of the cross examination, or which I wanted to make at the beginning of your cross examination when I said that if I was very often in the Blaue Traube, even if I put it -
Q Witness, we discussed that the other day.
A I never sat with Zimmermann; Zimmermann probably doesn't know me at all, if you were to show him to me; if you were to show me to him.
Q Which observations could you then make about the relationship of Rothaug to Zimmermann.
A The immediate observations is that of some one listening to a conversation; that observation I could not make. However, Herr Rothaug after all repeatedly within the framework of official business at the time when Zimmermann was Gau leader, Rothaug said, talking about the manner in one direction or another, what the wishes of the Gau leader were; I am here thinking particularly about a trial against an Ortsgruppenleiter Ramsteck, not about the trial which I conducted myself, where Zimmermann was a witness, but in a trial against Ramsteck because of a fraud. There a defense counsel, Mr. Biddle, said himself that his client was enraged about it; that he could observe that the penal files were returned by Haberkern in the presence of Zimmermann to Mr. Rothaug in the Blaue Traube.
Q Do you still know the attitude of Rothaug towards this political leader Ramsteck?
A There was absolutely a negative attitude.
Q Perhaps you can even confirm that Rothaug because of his attitude against this party leader had been reprimanded by the Gau leadership.
A I heard about that, yes.
Q Do you also know that the Deputy Gau leader Holtz, because of this case even complained to the Reich Ministry of Justice about Rothaug?
AAs far as I remember the attitude of Holz became important only in connection with the second trial of Ramsteck. The possibility that Holz already during the first trial of Ramsteck which he wanted to conduct; that he already made some complaint to higher authorities.
Q Witness, what were the consequences of the legal clause that the party was the bearer of the idea of the State. What was the consequences in regard to the application of political penal laws?
A This question makes it apparent the difference between justice and the party, and actually can be explained in its basis; in our sphere of work in the Justice Administration, there were a number of jurists who did not recognize the sphere in the Administration of Justice, who only wanted to let justice speak; and there were a number of jurists who because cf principles which you have just mentioned had adjusted their manner of pronouncing a sentence, as Herr Rothaug said, to base it upon the National Socialist ideas; this battle actually was never concluded.
Q Did you make observations that Rothaug in stating his opinion in this connection ever left the framework of the laws?
A Left the frame work of the laws; no; one cannot say so, but insofar as I observed it should be formulated as follows: The laws were for Rothaug, the tool by means of which in his field the Administration of Justice by which he could anchor the political idea or theory.
Q Did Rothaug in this activity which you now criticize, did he execute the will of the law giver?
A We know from our university days what should be the will of the law giver.
Q I asked you to answer the question which I put:
A I can hardly answer this question yes or no.
MR. WOOLEYHAN: If the Court please, in the first place it has not been established in any degree what this so-called will of the law giver is, and in the second place, even if it had been, it calls for a purely personal opinion of this witness; and the Prosecution objects to that.
THE PRESIDENT: The objection of that question will be sustained. The objection will be sustained.
BY DR. KOESSL:
Q Was the activity in the Special Court ever regarded or judged as an activity in the framework of the party activities, because the Special Courts were often, or rather had to apply overwhelming National Socialist penal laws?
A I don't know anything about that; I never heard about that.
Q Can you confirm that as a consequence of the intertwining of Party and state, there was no resistance to the party imaginable without endangering the country; and that conversely, every service to the country was of use to the party of necessity.
A To this question, as it applies concretely to Rothaug, and that is the only thing that you can mean after all, I would like to say that it would have been possible in the framework of the party; it would have been condoned in the party if Rothaug would have exercised a certain reserve.