Q. Witness, according to what you ascertained and observed, was the Special Court at Nuernberg that of the average of the Special Courts in passing sentences?
MR. WOOLEYHAN: May it please the Court, under a thinly disguised form this is clearly a question calling for a personal opinion.
THE PRESIDENT: The objection will be sustained.
Q. Have you ever seen a statement concerning the percentage of pardons, concerning sentences of the Special Court?
A. No, no.
Q. Do you know how many of the death sentences of the Nuernberg court came under the pardon?
A. The pardons in 1939 and 1940 were still a little more frequent; later they were fewer. The percentage, comparing it with the total number, I do not have. I had a written statement but they have been destroyed.
Q. Can you remember how many sentences were squashed for legal faults?
A. I believe two or three were cancelled because of legal objections - were excused for mis-trial.
Q. All other sentences were recognized or were there other cancellations?
A. There were also cancellations which were not due to purely legal considerations, but were made because the punishment awarded showed defects. The reasons for the unusual punishments were considered not sufficient.
Q. In those cases was there also more leniency shown or were they more severe?
A. That was about fifty-fifty. I remember a death sentence passed on a Pole was objected to because the emergency defense had been assigned incorrectly in setting the fact as a whole. Rothaug held the view that under the law against Poles a Pole did not have the privilege of emergency defense and that was also a mistake in the sentence. The Supreme Reich Court squashed the sentence and a prison sentence was imposed instead.
In another case a more severe sentence was passed. This was the case of Lopata.
Q. Under direct examination you said that the reputation of the Special Court of Nurnberg had been very bad.
A. Yes. That was because, I am now going to speak of two statements made by defense counsel; that was because an attorney at law with a reputation such as Vaugner said to me once in 1942 that the activity of Rothaug was no longer considered by him as the activity of a judge; the form in which he spoke to the defendant, this was concerning clergymen particularly, the manner in which he examined witnesses, Vaugner asked me whether he could speak to me quite frankly and I said yes; he said literally to me: in my eyes Rothaug is a hangmen, but not a judge. The other defense counsel would make remarks in the same manner jokingly, but he meant it seriously, and I want to add I deliberately base myself on statements by attorneys at law and not on statements from judges, but I would also like to add that Rothaug himself liked to call himself Lucifer; and he chase the translation from the Latin into German, the servant of the Reich; those were the circumstances which generally showed up the Special Court and particularly Rothaug in a very bad light. May I add one more sentence. When it was said that Rothaug liked to call himself the tenno; and that he was called the tenno; the Emperor; that means the Emperor of Japan; that was some symbolic designation the public prosecutor took; it was symbolically the Emperor of Manschuko; thereby, outwardly and inwardly the relationship is characterized best.
THE PRESIDENT: One moment, please. I couldn't make out one word; it sounded like "tenno"; what was that word and what does it mean"
DR. KOESSL: The word "tenno" was the designation for the Emperor of Japan, and the witness compared Rothaug with the Tenno, or the Emperor of Japan; and evidently, if I understood him correctly, the chief public prosecutor Schroeder was the regent of Manschuko.
MR. WOOLEYHAN: May it please the Court, I definitely heard the witness say that he was not comparing Rothaug to the Emperor of Japan, but that Rothaug, himself, compared himself to the Emperor of Japan. I believe the transcript will show that.
BY JUDGE BRAND: While the interruption continues, I should like to ask a question.
Q. Mr. Witness, you spoke about one case in which a sentence against a Pole was quashed and only a penitentiary sentence was imposed by the Supreme Reich Court; do you remember your testimony?
A. Yes.
Q. I want to ask you who raised the question; or how it was raised in the Supreme Reich Court as a matter of legal procedure. How did it get to the Reich Supreme Court; just briefly, please.
A. The sentence was submitted through the usual channels, through the Ministerial channel at Berlin; it must have reached the Supreme Reich Court Landgerichtsrat because the legal question had been broached and Rothaug denied it; that a Pole did not have the privilege of self-defense, that is to say when an employer just discharges the Pole, the Pole was not to have the privilege that this assault was illegal.
Q. My only question related to the procedure by which one of Rothaug's judgments was reviewed and modified by the Supreme Reich Court; it was done on the motion of the Ministry; was it?
A. I assumed that.
JUDGE BRAND: Thank you.
BY DR. KOESSL:
Q. Witness, can you give us an example of a sentence when Rothaug had passed too lenient a sentence?
A. Yes, that was the Wendel case; that is a case which went on for many months; it was a model case which Rothaug repeatedly said that Ostermeier's objections during the deliberations had been incorrect; if the original plan had been followed, Rothaug's plan I mean, this objection would never have been raised.
Q. Do you mean to say that in this case the associate judges out-voted the presiding judge Rothaug?
A. Rothaug himself, in this case used the expression he was of the opinion he followed Ostermeier's opinion; he meant to say that he had allowed himself to be influenced by the other person's opinion and that the sentence had been formulated in that way against his will; he repeatedly said that just for once he had allowed himself to follow Ostermeier's ruling.
Q. I conclude that these sentences were properly deliberated; that once Rothaug and in another case the associate judges gave in; that a proper deliberation of the sentence and a proper decision of the chamber was achieved.
A. This ruling in accordance with the code of penal procedure was regularly abandoned by Rothaug; when he organized a trial which politically exceeded a small circle because then in the presence of the Gauleiter or in the presence of a Kreisleiter, in the presence of well-known representatives of the party and the SD, the voting by the presiding judge, which is laid down by the code of penal procedure, that is to say he had to vote last, that procedure every time it occurred was an infringement because Rothaug at such an important public session from the beginning of the first examination of the defendant put to the defendant; told the defendant what he had to expect. For example when he said to a defendant at the end of this session your head will lie at your feet, or when he said why did you steel that coat, and the defendant answered because I was cold, and he said then you will never again need a coat in your life; if in a politically significant trial, such as in the case of Katzenberger, for example, it is said again and again what ideological significance the racial question has for the existence of the German people; that he who infringes must be physically destroyed; then in front of such an audience Rothaug at any rate has already voted for that audience hears from the mouth of the presiding judge how he will vote, and what will be the result of the sentence. We always said that the presiding judge foretold the sentence.
Q. The following interests me. How did the associate judges, and in particular yourself, view your office as an associate judge?
A. There was a unanimous view among the associate judges and that was this: Naturally we tried, at the Special Court Nurnberg, we tried within the framework of the deliberations insofar as there were any deliberations after a session, we tried to counteract the opinion that Rothaug had publicly stated; to counteract it to a certain extent; imagine that Rothaug's vote had been cast, let us say in the Grasser case, in the presence of Gauleiter Holz, that officially the dogma that his head must be taken off, where is the strength to come from to counteract such an opinion.
Q. Witness, I believe we have reached the point where we must have a more serious discussion.
A. I do take a very serious view of all this.
Q. If you were of the conviction as an associate judge that a man was to be sentenced to death wrongly, did you only vote with Rothaug for the only reason because you had to fear that Rothaug's prestige would be diminished, or did you vote for the death of another person because you perhaps -- which has not been proved yet -- were to have been transferred from the penal chamber to the civil chamber?
A. When might I have been in such a situation as you have described? When should I have voted for a death sentence?
Q. In all cases you or the other associate judge voted for the death sentence in all cases in which a death sentence was promulgated; is that correct or do you wish to dispute this conception?
A. In that form as you have put it that in question can only lead to a half truth. I believe it is necessary to explain this by the example of the individual cases.
Q. I believe the question is completely clear. Did Rothaug ever announce a sentence which had not been decided on by a majority? That is the question.
A. Voting in the proper sense of the Judicature Act Regulations -that means to say we vote on differences of opinion -- such a voting I do not remember at all. The custom was this: we deliberated in this form, in the consulting room Rothaug voiced his view -- continued to give us his views, and that in the same way in which he had done at the trial itself, and when he had examined a defendant or when he had examined the witnesses if an objection was made, which not all cases, but in the cases which were border cases -- for we can only be concerned with such borderline cases -- in such cases Rothaug, from the ideological angle, from a purely political motive, put his arguments forward, and generally it is difficult to describe in a general way, but it is easier to do so in concrete cases as, for example, in the Katzenberger, Grasser, and Lopata cases, which I remember well and which show how it happened that without open opposition Rothaug made sure that one of the associate judges would agree so that he could announce the sentence even without a purely formal vote within the meaning of the provisions of the Judicature Act.
That is obvious.
Q. Witness, tell the Tribunal quite clearly what happened usually and always. The Court withdrew for deliberations; is that right?
A. Yes.
Q. The court withdrew to a small room for deliberation and was alone there; is that correct?
A. Yes, they were alone.
Q. The three judges who were in contact every day hardly took the vote like a referendum or a plebiscite, but they discussed things with one another; is that right?
A. Yes, the word "discussion" -- when I remember things I feel a resistance against the word "discussion." Rothaug didn't like discussions.
Q. Very well then. At some time he had to lay down his cards and at some moment one of the associate judges had to show his cards. At what moment did that happen?
A. We will take the Lopata case.
Q. I now want to know in general how these deliberations took place. When the sentence was ready, that is to say, when the three judges realized, for example, that they were going to pass the death sentence, what happened at that stage in that room?
A. As I said, Rothaug had already cast his vote publicly at the first. That means he could only -
Q. Well, what did happen? I don't want any long statements.
A. But you can't say that -- I do not need to make excuses.
Q. I want a clear answer.
A. You will get that clear answer from me. At that stage in the room Rothaug again gave a precise form to his attitude. He continued here in the same manner and he took the position which he had from the beginning of the trial. That is to say, he acted as a reporter. And now when I was present and I personally was of a different opinion, we tried to make Rothaug see why we had a different opinion. For example, we pointed out was it necessary in the interests of a deterrent, because of the frequency of such cases -- practically specking, all these things sound much too abstract now.
For example, whether the Poles frequently or infrequently illtreated the cattle of the farmers or tried to kill it with glass splinters.
JUDGE BRAND: Mr. Witness, to your knowledge, did defendant Rothaug ever announce a judgment of conviction in a case in which both of the associate judges had voted for acquittal?
THE WITNESS: No.
JUDGE BRAND: Did you have the power to vote as associate judges?
THE WITNESS: As the last way out we could say, Well, then, we will take the vote. But -
JUDGE BRAND: That is all I want to know.
BY DR. KOESSL:
Q. When the vote had been taken or when unanimity had been reached beyond doubt, what happened next?
A. Then the announcement of the verdict had to be written out.
Q. In other words, then the sentence was written down; is that right?
A. Yes. It was laid down in writing.
Q. Was this written sentence signed by all judges?
A. Yes, regularly. When I looked at the files now I saw that in some cases there were not three signatures.
Q. Was that a mistake?
A. Yes, in my view that may have been due to an oversight.
Q. The oversight probably lay equally with the associate judges and Rothaug.
A. That is the only way I can explain it.
Q. We won't go into that now. But the sentences were signed when they were announced?
A. That is right.
Q. Therefore not a single sentence was announced which did not have the approval of the majority of the chamber?
A. That is correct.
Q. Did you find yourself in an inner conflict in view of these facts, now that you say that frequently you were outvoted?
A. At these conflicts things became easier, and it had to be expected that it would be so, because in the presence of the highest chiefs of the authorities in Nuremberg, in the presence of the Oberpresident, the Generalstaatsanwalt, the Landgerichtspresident, and the Oberstaatsanwalt, because in their presence it had become evident concerning the conduct of the trial and the shaping of the trial what might have been wrong with it, and it had been clarified by consultation that the chiefs of the administration ministry would make representations for settlement. In three cases I know that Oberpresident Doebig himself submitted special reports on such trials and their results immediately so that a change in the verdict might be achieved.
THE PRESIDENT: Counsel has pursued this line to very great length and we think that different lines should now be pursued.
BY DR. KOESSL:
Q. Can you remember cases during which Rothaug, concerning a number of sentences, wanted to judge then in a minor way, and one which he won with his view.
A. I think perhaps I may be able to give you the right answer if I remember that these foreigners were to receive different treatment who had committed an offense under the Malicious Acts Law for abuse of Adolf Hitler or for contempt statements about any institution when it was said one must remember that these groups of persons had no particular relationship of loyalty towards the German State and that therefore they should be given a more lenient treatment.
Q. In that case, Rothaug took sides with the foreigners?
A. Since the end of 1940, that concerned civilian workers from the western countries.
Q. Can you remember how Rothaug introduced was to view every case of black slaughter on a commercial basis was to note out severe treatment to a black slaughter on a commercial basis than that type of black slaughter which had been done on a farm, and which was only intended to give better food to the farm workers.
Q. In this case too, Rothaug was in favor of a more lenient judgment than was generally considered correct?
A. Tothaug's altitude had been recognized. I can not make any comparisons.
Q. Can you give us further groups of offenses where Rothaug was in favor of more lenient judgment and did actually pass more lenient judgment?
A. At the moment, I don't know.
Q. With reference to the matters concerning soldiers -- the question of adultery committed by soldiers -- the special court at Koenigsberg got publicity because it considered that an offense committed by an enemy of the people -- and that point of view was discussed in literature and it was not accepted by Rothaug either.
He thought that a more lenient view was more appropriate. Can you remember an occasion where Rothaug, concerning the black slaughtering penal regulations, did not want to apply those because it was only a minor case?
A. I vaguely remember something like that concerning a theft. It was of importance in that case as to whether paragraph 2 of the Public Enemy Law concerning an offense against somebody else's property -whether that paragraph should be applied or whether it should be paragraph 4 which provides expressly that a contravention does make its application necessary.
Q. Did Rothaug abandon the death sentence concerning squad collection, although it was possible there to pass the death sentence?
A. That is a later case on the Baerenschanzstrasse.
Q. Yes
A. I believe I was the public prosecutor in that case.
Q. Can you confirm to me that in German science as well as in German jurisdiction, the treatment of the punishment during war was expressed only incompletely and insufficiently?
A. That is correct.
Q. Can you confirm to me that therefore the extent of the punishment in Germany had formerly always been neglected and that there were discrepancies which went too far?
A. That is emphasized in the speech by Reichminister of Justice Guertner in 1939 during a conference at Berlin of the presiding judges of the people's court before the outbreak of war. Guertner said there that the reply of the penal judge during war must be different from that to which one had been used to in former times in peace.
Q. Did Rothaug try to eliminate all discrepancies in the treatment of cases and can you confirm to me that Rothaug did try to establish legal security by trying to pass the same sentence in a similar case?
A. Yes, I can confirm that.
Q. Can you tell me whether the judge, in considering the type of punishment and the degree of punishment, was able to act quite arbitrarily or whether here too he had to observe the provisions of the Law?
A. The principles were laid down by the special penal senate at Leipzig -- the general penal senate -- gradually since 1940 through the publication sentences, it was made clear when a case was to be considered particularly serious within the meaning of paragraph 2 or whether when under paragraph 4 of the public enemy law, the sound sentiments of the people would demand that the ordinary punishment of war should be exceeded and that the offense was to be considered more serious.
Q. How I will turn to the Gaishauser case. How was it that the witness Gaishauser, according to your description, after his arrest by a policeman was still carrying a knife?
A. The -
Q. Just a moment. Do you know that the police has an official ruling saying that every person who has been arrested must immediately be searched for weapons?
A. The policeman who had been stabbed had a trial himself because he had neglected his rules.
Q. Did he not say at the time that he had searched the man?
A. He said that knife had evidently been hidden so well that he hadn't found it.
Q. Did he not say that he had taken the knife after he was searched?
A. That he must have taken the knife after he had been searched. It was the opinion of the policeman that he had searched Gaishauser so thoroughly that he could not explain it himself in any other way, that when leaving the kitchen, Gaishauser might have appropriated that knife.
Q. I am asking this question because during the examination, you have said the examination of the witness which gave evidence on the state of frankness had been in the center of that trial.
MR. WOOLEYHAN: May the Court please, the prosecution objects to this line of questioning. It appears to us to be completely irrelevant to the points raised concerning the Gaishauser case in the direct examination. It is completely irrelevant; it is entirely a collateral matter having no bearing on the points listed.
DR. KOESSL: May it please the Court --
THE PRESIDENT: Whether this man had a knife after he was arrested and searched is entirely beside any issue in this case. At best, it throws no light upon the issues. It isn't proper cross-examination.
DR. KOESSL: May I briefly explain my view?
THE PRESIDENT: No, I think we understand it thoroughly.
BY DR. KOESSL:
Q. Witness, were the facts as follows? The witness you quoted was she the only witness who was able to make a statement on the point as to whether Gaishauser was drunk?
A. This is what happened. For judgment of Gaishauser Landgerichtsarzt Dr. Schuhmacher --
Q. (Interposing) Just a moment. I will come to that later. I now only want to hear about the witness who made a statement on the state of drunkenness. Was the innkeeper's daughter the only witness who was able to give testimony on the point of drunkenness?
A. She was the only witness who did give testimony on that point.
MR. WOOLEYHAN: May it please the Court, the answer to this question is already in the record. It appears who gave expert testimony on the state of drunkenness. That was elicited during the direct examination. Why must we dig it up again now?
BY DR. KOESSL:
Q. What facts was the witness able to give?
A. This witness testified that she had watched Gaishauser on his way. She had watched him while he was walking and I believe she had also watched him while he was talking. Because of her general observations as an innkeeper's daughter, basing herself on those observa tions, she made her statements such as they were taken down by the policeman in the records, and she said Gaishauser had been intoxicated.
At any rate, he had not been sober.
Q. Was this statement --
THE PRESIDENT (Interposing): To go into detail on all of the testimony in each of these cases to show that sometimes Rothaug was right and sometimes that he was wrong does not prove anything. Any man can be right part of the time and wrong part of the time. The question in this case is, was Rothaug's general demeanor that of too great severity. Now we can't take the time here to inquire whether in each instance the testimony was such that Rothaug might have been right or that he might have been wrong; it would extend this case to an interminable length. That question - well, he has answered it, but let us have no more questions of that nature.
BY DR. KOESSL:
Q. Rothaug's objection to the statement by that witness, under the penal code of procedure of that time, was it justified or not?
A. Yes, it was based formally on the penal code of procedure.
Q. As to the points to which you objected in the treatment of that witness, they did not concern the point as to whether Rothaug was justified in his procedure, but they were only concerned with the manner in which he fought the witness?
A. I believe that is what I said.
Q. In the direct examination that did not come out clearly. After the examination of the witness was there an impression, and was, in fact, the state of affairs such that one could think of a limitation of the defense?
A. I can only speak for myself, and my impression was this: What will the expert do with his expert opinion on the basis of the statements made by this witness at the trial and on the basis of the former statements at the police, the expert's opinion on which had been included with the files? Will the expert maintain this opinion, will he amend this opinion, or will he make a motion that Gaishauser should be kept under observation for some time?
Q. Did the expert have all facilities to observe the case?
A. As regards time, yes, certainly, because between the committing of the offense and the trial he had time to work out his expert opinion in writing. Whether the facilities for medical examination in prison were sufficient --
Q. (Interposing) Was the expert present at the entire trial?
A. Yes.
Q. Did he himself put questions to the witness after Rothaug had questioned the witness?
A. I don't remember, but I don't think so.
Q. Would it have been possible for him to put such questions?
A. Yes.
Q. Did Rothaug at any time make it possible for the public prosecutor and the defense counsel to put questions to witnesses and to experts?
A. Yes.
Q. Can one say, therefore, in summarizing, that Rothaug, by his manner of conducting a trial, curtailed the possibilities of defense and the producing of evidence by the defense?
A. In the case of Gaishauser?
Q. Yes, in that case in particular and, generally speaking, in other cases.
A. Generally speaking, I myself know --
MR. WOOLEYHAN (Interposing): I object to this question as being a patent request for a personal opinion of the witness.
THE PRESIDENT: The witness was just about to give an answer as to his general attitude and it does seem that part of his answer would have been very pertinent. Of course, that part where he was speaking of Rothaug's particular conduct in this particular trial is something that we have already ruled out, but he was trying to say something of his general attitude, and personally I would like to hear the answer to that.
THE WITNESS: Defense counsel had told me frequently that the defense counsel regarded the treatment of their desire to obtain further evidence - they considered they were being curtailed in that, but they generally felt themselves curtailed because their offers to submit evidence in writing before the trial were rejected by Rothaug.
He considered the summoning of this or that witness as irrelevant. Therefore, in general, I cannot answer your question in the affirmative, that is, your question that Rothaug was generous in offering facilities for evidence, but that he curtailed the defense in producing such evidence. I only know all this from the mouths of the defense counsel.
BY DR. KOESSL:
Q. Can you state cases at which Rothaug rejected a motion for evidence, although that motion was formally admissible and was relevant?
A. I cannot answer that off-hand. I shall have to think about it and I shall be glad to revert to it later.
Q. Do you remember cases during which the defense counsel made complaints because their action had been rejected?
A. I just remembered this occurrence. A defense counsel, concerning Landgerichtsarzt Dr. Schuhmacher, made representations to Rothaug, through his office, because the expert, in his written opinion, dealt with matters which exceeded the purely medical sphere by far. It was a case of questions typifying the defendant, concerning his race, whether he belonged to the Dinarian race. It also dealt with the social prognosis and beyond. The expert expressly chose - the defense counsel said that the expert had become political and had not restricted himself to forensic medicine.
In that case Rothaug rejected the complaint by the defense counsel, nor did he admit a new expert opinion because, as he said, it was the task of the district court medical officer to support the legal opinion, or the legal findings, by his opinion.
A complaint, I think, by Grower, was not handed on because the physicians to the Special Courts were incontestable. At the session he sent a deputy and no further differences arose from the matter.
THE PRESIDENT: We will adjourn now for our usual noon recess. We will adjourn at this time until 1:30 this afternoon.
(A recess was taken)
AFTERNOON SESSION
DR. CARL FEBER - Resumed CROSS EXAMINATION (Continued) BY DR. KOESSL:
Q You were just speaking of the denying of an application for submission of evidence; a refusal of submission of evidence; I am asking you if the refusal to accept the evidence, would not the rejection at least have been a reason for the reopening of the case, that is I mean a condition which could bring about a reopening of the case?
A If, during the first trial, the main trial, in general the export was well enough informed or thought that he was well enough informed and that from the conversation, I am referring to the conversation before the recess, then if the defense counsel did not again open the question of the application, then the prosecution also had no reason to reopen it or to take any steps in order to reopen the case.
Q Did you want to say anything more?
A No.
Q You have found out here the rules of procedure for this Tribunal. Please compare the position of the prosecution and of the defense, in a German trial, with the position of the prosecution and of the defense here in this trial. In a German trial does the defense have the same position as the defense has in this trial?
A No.
Q Who in a German trial is in charge of the submission, of the acceptance of evidence?
THE PRESIDENT: Nothing would be gained by comparing the procedure of this trial with the procedure of other trials, and, we therefore decree you should not proceed with that line of questioning.