THE PRESIDENT: One moment, please. The witness answered, some little time ago, that these reports to the RSHA and the answers from them were for the purposes of justifying the opinions of the lower court. At that point, Dr. Koessl asked the question whether it was intended as an interference of those opinions. I couldn't observe that the witness answered that question, and I should like to know whether it was an interference and not merely an attempt to justify.
THE WITNESS: Inasmuch as we discussed these cases at our level, one could net speak of interference in the individual cases. How far the RSHA, through conferences with the various ministries -- in this case, the Ministry of Justice -- could interfere, I am not in a position to estimate.
THE PRESIDENT: I am not so much concerned as to how much they could do, but I am very much interested in knowing what they did do, if anything, in the matter of interference.
THE WITNESS: Well, of course we reported with the intention that a wrong development in individual cases should find correction occasionally, but I am not so familiar with that in the legal field. e received instructions from superior offices that in this one or the other case a measure from the Ministry or the respective superior office was caused by the report.
BY DR. KOESSL:
Q Wasn't it so that at that time the fact had become apparent and noticed that offices which were outside the administration of justice were frequently concerned with matters of justice; for instance, offices of the NSDAP, Kreisleiters, and so on?
A Yes.
Q Were the conferences also concerned with the attempt of preventing such interference?
A I can hardly remember that when speaking to Rothaug that problem was ever discussed to any extent. Occasionally, when mention was made from the outside, that question was touched too; but if I remember correctly, Rothaug was of the position that the Party, for instance, was definitely justified to make its intentions known to the court, he said, in the same manner which for instance the administration of mail service -- in case of a fraud on the part of one of the officials -gives its expert opinion about the case; then, in the same manner, that right should be conceded to the Party.
For that reason, he offered at all times information to the Party and gave also advance information about pending causes and an opportunity to stale its -- the Party's -point of view.
Q That was originated by law, if I remember correctly, witness. Wasn't it provided that in penal cases against members of the Party, on the basis of a legal decision, the Party had to be informed?
A Yes, that of course.
Q That is what I mean. Was there more involved?
A For instance, in cases of malicious attacks, a directive by the Ministry of Justice was required. That directive, as far as I know, came about in cooperation with the Party Chancellery. It is true that the Party Chancellery, certainly before it rendered its decision, received information from the Gauleitung concerned with that case. But I believe that I am not mistaken to assume that Rothaug, even beyond that in local cases of political significance, tried to get the opinion of the Gauleitung concerned.
Q You have told us yesterday that you discussed pending cases on the points of view of the general development of criminality. Was that the basis of your conferences on Saturdays and later on at more frequent occasions?
A Perhaps I can make the answer a little clearer by emphasizing the circumstances under which this more intense cooperation with the Special Court under Rothaug, in particular, came about. The conference between Doebig and the others was concerned with the official agreement, as I have said. The position and the tasks of the SD are known to you. I assume that the SD was in a position to obtain these official infor mations and opinions from the official sources, but we had to try to find out about the matters which were, for instance, in the more detailed files -- matters about which information cannot be obtained through regular channels -- or to find out about matters which went beyond the pattern of an official opinion about a penal case; that is to say, as we have explained before, a particular experience or an opinion about another court.
The obtaining of that information could only be the case if as an SD man I had a closer connection to Rothaug beyond the official character of my mission. And Rothaug, after that first official conference with Doebig -- in a conference between himself and myself -- stated that he was prepared to do so.
Q Did you take up contact with other officials of the administration of justice in your position at that time?
A Here again I have to deal with the administrative organization. As you have heard yesterday, the Abschnitt, after the SD Main Office, was the next lower echelon. It was not cur task as such in all fields, let's say of law and of administration, to obtain and to collect material of information. That task remained to the so-called field offices. I believe we had five in Nurnberg. And these field offices, as far as I am informed, had their confidential agents again; and that there were legal men -- members cf the court -- among those, is quite known. As far as my mission was concerned, that is to say, on order to appraise and evaluate the material which came from the field offices, I needed of course a qualified person -- an expert -- who had a wider field of experience; and for that purpose I needed Rothaug. He agreed, and he also had the right attitude.
Q Yesterday you spoke about the slackening of the security machinery during the war. Could you remember that preventive measures against danger arising through conditions of war was part cf the discussions and conferences with Rothaug?
A You mean measures to be taken by leadership offices?
Q In order to prevent possibilities of dangers arising from special conditions, arising from emergencies of war.
A Of course.
Q Now yesterday you also discussed the treatment of foreigners. Can you remember whether on the part of Rothaug any western foreigners that is, nationalities of western countries -- were judged or sentenced by Rothaug?
A Yes.
Q. What case can you remember particularly?
A. That is known to me?
Q. What is known to you.
A. .....That foreigners were sentenced by Rothaug?
Q. I wanted to ask you particularly of people from Western countries.
A. Do you mean Frenchmen?
Q. French, Belgians... Do you Know a specific Case which came before Rothaug?
A. At the moment, I cannot remember.
Q. Do you remember what Was Rothaug's position in comparing the criminality of people from Western countries, and, say, the Poles?
A. Maybe I can explain it in the following manner: Rothaug, on principle, compared with the treatment of Germans, had a much more severe attitude towards foreigners. He was definitely, and always of the opinion that the foreigners present in the area of Germany had to be watched closely for their attitude, and every move which would tend to become dangerous for the security factor would have to be squashed. And now, to return to your question proper. That ho had a much more severe attitude towards the Poles, for instance, is quite obvious.
Q. Do you Know what had caused that point of view on the part of Rothaug?
A. It is really difficult to put myself into the shoes of Rothaug, as far as that is concerned. Occasionally he pointed out, for instance, in cases of Poles, that the propaganda about atrocities of Poles was at the bottom of it; that a people who had caused so much hardship to the Germans, that a people of that kind stand on a much lower level. He was referring to the Blood Sunday of Bromberg. And if the German people do not want to be defeated, every hostile move, for instance, on the part of the Polish people, would have to be choked off.
Q. Since you have read reports on public opinion, I should like to ask you whether you have ever seen statistics of criminal cases, where you could see the part - the proportion - of the Poles within the total of criminal cases.
A. Official statistics -- that is to say, from the Administration of Justice on a wide field, I can't remember. However, I had Rothaug give me a chart, a list of the criminal cases. It was a sort of statistic next to the total of cases, and the numbers of total cases from month to month and from year to year. Where was a distribution showing different types of crimes, and, also, different columns showing the nationality of the people. This statistical compilation, as far as I received it from Rothaug, was limited to the proper field - his area.
Q. Where was criminality higher in percentage, with the Poles, or with the members of the Western countries; that is, citizens of Western countries.
A. That, I could not answer with certainty. However, I should assume that, naturally, the cases of Poles were more numerous.
Q. Now, you mentioned yesterday that a gap in the law would have to have been bridged as far as the Poles were concerned. Was there such a gap?
A. Initially, there Was no regulation concerning the Poles, and criminal procedures against the Poles, and when they ware sentenced, the acts committed by Poles received a different evaluation in various parts of the Reich; in, for instance, the Special Courts of Nurnberg the cases of Poles were more severe; or, that it saw in a particular action of a Pole already a punishable fact - whereas a different Special Court would not have assumed that. Where were actions of Poles, let us say, as remaining out after curfew in the evening, or failing to register. And the date of registering was established by individual Mayors in some cases.
These facts, as such, could have been taken care of in an administrative way -- in a disciplinary administrative way. Here, in the opinion of Rothaug, it was necessary that these misdemeanors, in some cases misdemeanors against Germans, would have to fine legal penalties. That thought, at a time when larger numbers of foreigners and Poles were brought into the Reich, grew stronger, and particularly because the appropriate administrative measures existed only, for instance, in individual districts, and differed greatly among cases. So that these differences again, since the Poles had a good means of information for themselves, gave them the possibility to avoid it, to circumvent it, so that forcibly the desire to a ruling by way of criminal legislation against Poles and foreigners came about.
Q. If I understood you correctly, it was not a gap that existed because in the administrative field there were regulations -there were regulations of another kind, but what was needed was a basic ruling , a legal decision, in order to assure that differences in treatment should be eliminated.
A. Yes, if I look at it from the point of view of criminal law it still was a gap. There was no basic law at that time. At that time there existed no basic law that dealt with foreigners and Police.
Q. Did you happen to see a draft composed by Rothaug, or were Rothaug's thoughts only forwarded by you in the reports?
A. A draft for a law concerning Poles did not come from Rothaug, of course; but in his reports, and in the reports I passed on, it was expressed - and mostly based on oral statements made by Rothaug -that a legal decision, a legislative decision, would have to include these facts and take them into account. That is to say, for instance, if a Pole does not feed the cattle right, that he puts foreign matter into the food, - that fact, if it has been committed by a Pole, should be viewed differently as far as application of penal law is concerned, than if it had been done by a German.
Q. One moment. Are we concerned here with a difference in dealing in the same cases -- discriminatory treatment of the same case, the same facts; or, is this a discriminatory treatment of the same fact on account of the individual?
MR. KING: One moment, please. I think that the question which defense counsel is putting is a little unfair because he has asked the witness to discuss the law against Poles and Jews, and in that law it specifically states that there is to be a discrimination in dealing with crimes committed by Germans and crimes committed by Poles and Jews, so, in asking this question it seems to me that ho is calling upon the witness to deny what is actually written into the law.
DR. KOESSL: May it please the Tribunal: The case just discussed, as far as I remember, is not included in the law against Poles. WE are concerned here with the problem of finding out what the contents of these suggestions were. The point is to clarify whether the facts differed, or whether it was the person who committed the act, and I asked the witness what Rothaug's opinion was. I believe that is a question concerning the contents, the facts of the conferences, at that time.
THE PRESIDENT: Isn't it the effect of your problem that you are asking Rothaug's opinion of the statute, which does provide for more severe treatment of Poles than it does of other nationalities?
DR. KOESSL: No, Mr. President, I wanted to find out what the thoughts of Rothaug were at that time, not what is position was to the final decree concerning Poles and Jews.
THE PRESIDENT: It is time for our usual morning recess. We'll rule on them matter on reconvening.
(A recess was taken.)
THE MARSHALL: The Tribunal is again in session.
THE PRESIDENT: The witness may answer the question.
A If I understood the question correctly, the Defense Counsel wanted to know whether the attitude of Rothaug was such that already the precept of the idea to judge foreigners such as Poles more strictly in a given case or whether the question was only to judge a certain act more severely; would you please repeat your question again?
Q No, witness, in the discussion of the Polish cases, I want to limit myself to asking you again about the statistics which I mentioned before. Can you remember from the statistics that it was proven that the criminality of the citizens of the western countries was lower than the criminality of the average in Germany; and that the criminality of the Poles? -
MR. KING: One moment -
Q Was that the purpose of the statistics to prove this condition to establish this condition?
MR. KING: One moment; I wonder if we could have a definition from Dr. Koessl of what he means by "criminality". Now, if he is suggesting that by "criminality" he means convictions, naturally we are going to find it much higher for the Poles because by statute and by inclination the Poles were especially singled out. I wonder if we could have a re-definition of the. word "criminality", and just what he means by it.
JUDGE BRAND: May we also inquire if the statistics to which counsel refers were related to and based upon convictions.
THE PRESIDENT: It occurs to me to suggest that that very question was asked a while ago and answered to the best of the ability of the witness. Now, we ruled on the question you asked just before recess that the witness might answer that, but the question that Defense Counsel has now asked is entirely a different question. May be he wanted to abandon the other one, but, if so, I see no occasion for repeating a question which has been asked and answered at great length.
DR. KOESSL: May it please the Court, the first question the witness evidently did not understand. Therefore, I wanted to go further into this case, the question about the statistics; the witness did not answer clearly enough for me before the recess. I wanted to help his memory along, and therefore I reminded him of the comparison of the criminality of the members of the western states with the criminality of members of the German Reich, and the criminality of the Poles. This comparison was before the issuance of the Pole penalty decree.
MR. KING: The question, I believe, is basically unfair for this reason--that the witness testified yesterday that even before the law against Jews and Poles was passed, that the defendant Rothaug achieved the same effect by interpretation of penal statutes which he had at his command, and that he achieved after the law was passed, so still we are talking about the question of criminality vs. convictions.
THE PRESIDENT: I would like to ask the witness a question at this point. Witness, you have heard what Mr. King has just now stated. Do you confirm that that was your answer on that point and that he has correctly reported your answer--in the way he has just stated?
A I believe so, yes.
THE PRESIDENT: You may go ahead with your questions.
BY DR. KOESSL:
Q Do you have any reasons on which you base for the participation of the Poles in the entire crimes in the Reich, compared to the proportion of western citizens in the crimes which were committed in the Reich before the decree against the Poles was issued, that is, before the 4th of December 1941?
A I already emphasized before that the Reich statistics were not submitted to me at all.
Q Witness, I want to go over to another point. What concrete reasons do you have for judging what influence Rothaug had on Haber kern in regard to the leadership of the Gau; what influence exerted through Haberkern on the Gau leadership?
A I know that Rothaug was at the Hotel Haberkern, at the socalled Stammtisch Club Table; that he was seen there frequently; I know further more, partly from having been present there myself, in the Blaue Traube Restaurant that other leading men of the Gau were also present there. For example, the Kreisleiter Zimmermann occasionally; also the high SS Police Leader Dr. Martin and several other people; and I know further more that at this Club Stammtisch matters concerning the Gau were discussed. I can further say with quite a good deal of certainty that Haberkern, especially in legal questions, based himself on the advice and actions of Rothaug, since Haberkern, as I believe I emphasized already yesterday, as Gau Inspector, at any time could have insight into any masters which were of interest to the Gau and what was going on inside the Gau; he could, of course, on the basis of this insight, he could inform the competent Gauleiter.
Q Did the Gau not have a definite office for handling legal questions?
A Yes, the Gau had a legal office, the Gaurechtsamt.
Q Was Rothaug in charge of this office?
A No. Rothaug was in the National Socialist Lawyers League; the head of which in the Gau Franken Franconia, at times was in personal union with the head of Gaurechtsamt in the person of Oeschey. In the National Socialist Lawyers League Rothaug had the position of a Gau Group Leader of the Judges and Prosecutors; you know that the National Socialist Lawyers League was again divided into groups.
As Gau group leader of judges and prosecutors, Rothaug was in the Gau Franconia, the judge, the leading jurist, politically; who also from the political point of view, especially the personnel policies of the Party had the primary influence on it -- the most important influence, that is, the Gau leadership. The Gauleader depended a great deal on its own initiative or due to the questions by the Party Chancellory, who had to advise and give opinions on certain personnel policies -- questions of personnel policy. The Gauleader and the Gaurechtsamtsleiter had to find out Rothaug's attitude.
Q. But, witness, is it not evident already from the fact that the Gauleadership and the Gaurechtsamtsleiter had to turn to Rothaug; that the Gau Legal Office leader -- director was the decisive man, the advisor of the Gauleadership.
A. One should suppose that from the outside, just from looking at the organization, but actually I should suppose -- I think I can say that with certainty, that the Spiritus Rector, shall we say, the guiding and thinking spirot, even under the leadership of Oeschey was Rothaug.
Q. Now, did you have an inside into the attitude of Rothaug with his associates from the political point of view?
A. Do you mean the association on the Special Courts:
A. Yes.
A. In order to do so it is necessary -
Q. (Interposing) Please, did you have an inside or not?
A. Yes.
MR. KING: May I ask if the witness wants to expand his answer or not. I think the witness should be permitted to if he so wishes. What is the ruling of the Court on that?
THE PRESIDENT: Yes, he may answer it further if his answer requires an explanation. Sometimes a question calls for a direct answer; sometimes that answer is not fair to the witness unless he explains why. In this instance he may answer.
A. (Continued) Rothaug was operating on the principles from the National Socialistic point of view, that was correct; that a judge in a Special Court had to fulfill a certain minimum requirement from a political point of view; that it was not enough for Rothaug that Special Court judges were appointed who, from the technical point of view, met the requirements, but they must also have a political, a certain maturity -- shall we say, a certain political maturity.
Q. Are you finished?
A. Yes.
Q. Insofar as the political maturity of the associate judges goes, did Gross and Ferber fulfill that and Hoffmann -- were all of those taken from the Special Court by Rothaug -- removed from the Special Court, or am I correct?
A. It was so that the basic attitude of Rothaug toward the requirements of judges in the Special Courts was that he emphasized occasionally, again and again, that these requirements were, of course, not fulfilled in all the points of the requirements because in his opinion the political orientation was not necessary to the extent that he desired it, did not exist to the extent he desired it. He said already under his leadership, judges were, shall we say, recalled.
Q. Did the associate judges of Rothaug find out any opposition on the political ideas by the SD, any complaint; perhaps because they had different legal opinions and different conceptions of law because they had voted differently in the discussions?
A. By the SD do you mean to say by that that the matters were taken from the higher authorities?
Q. Did Rothaug report about the unfavorable comments about his associate judges in order to have them reprimanded?
A. That was not the case for Rothaug stated again and again that under his leadership the judges followed the corresponding course.
Q. In the argument with Doebig, did Rothaug, at that time -what was the core of this misunderstanding with Doebig?
A. I have already emphasized before that it is my opinion, my conviction, that Rothaug, politically and legally politically was not in agreement with Doebig.
Q. Do you still remember what attitude Doebig expressed toward Rothaug when the question of transfers came up?
A. The question of transfer of Rothaug did not become known to us from Doebig, but only from Rothaug.
Q. Did Rothaug tell you at that time what words Doebig used in announcing his transfer to the East, to him?
A. He told me, the contents of the words, if I remember correctly, they were something like this: That the person of Rothaug, as a judge, in the Special Court, with the view to development of the war, at a Special Court in the Reich proper was not justified any more, properly. On the basis of his qualities, Rothaug would be suited far better for Special Courts in the East.
Q. Did he tell him at that time that it would be much better for him, Rothaug, if would go to the East -- he would not be so overworked as he was here?
A. That could be, but I cannot say that with any certainty.
Q. But, that would be the opposite of what you have just testified to.
A. The question is, in what connection did he, Doebig make the remark -
Q. (Interposing) You cannot remember that correctly?
A. In regard to the amount of work in lots of cases, that came up in regard to the material itself.
Q. Can you remember that at the time Doebig described the transfer of Rothaug as a serious blow to him, against him?
A. It could be that Rothaug pointed out that Doebig addressed his intent in such a remark, supplementary remark as far as I remember. However, Rothaug left no doubt that consideration of the person or transfer, that it was a favorable occasion for Rothaug, the transfer.
Q. Did Rothaug complain to you that Doebig praised his work extensively; that he wanted to remove the cause?
A. Something like that, it must have been.
Q. Did Rothaug mention that Doebig wanted to have only those people who crawled on the ground before him?
A. In this concrete form, one cannot put that question because I still have the impression as I did before, that the whole affair at that time was based on the political character.
Q. Did the associate judges of Rothaug, especially the associates of Rothaug, especially the associate judges and prosecutors complain about bad treatment?
A. Questions of that kind were essentially not discussed. Occasionally, perhaps. There was a short hint. They were not important for us.
Q. Did Markl, for instance, say something to you about the fact that he was suffering under the pressure exerted by Rothaug?
A. Markl, as I explained to you before....there were jurists, outside influences, and Markl was in Nurnberg. Thus, I did not come in direct contact with the Markl question.
Q. Did you supervise sessions of the Special Court?
A. About supervision, one cannot talk.
Q. You mentioned that you were present at two sessions; at least, you knew with certainty that there were two sessions. At that time, were you wearing your uniform, or were you in civilian clothing?
A. I was in civilian clothing, for there was a direction for the SD -- I don't know whether that was in writing -- a directive that they should not go in sessions of a court in uniform.
Q. bore the sessions of the Special Court supervised by other officers of the SD?
A. Defense counsel, you always use the expression "Ueberwachung" -- supervised....
Q. You denied that, as far as you were concerned; now, I am asking whether other people fulfilled this function.
A. As I already explained before, in our report the question was also the effect on the moral - the reaction of public opinion -that was within the jurisdiction of the Special Court to find it out--that occasionally the presence of trusted men in sessions of the court was necessary for this -- you can understand that. Thus, it is absolutely conceivable that such trusted agents, in order to determine the reaction of public opinion, were sent to the Special Court from the field offices Nurnberg.
Q. Also, this visit to the sessions was not for the "ueberwachung" --for the supervision of the personnel of the court?
A. Absolutely not.
Q. What did you now find out in this reaction of the jurisdiction of the Special Court on the public opinion?
A. As far as lay voices were concerned, the basic impression became apparent from the reports that the sentences were regarded as often short; -- "damned severe." (Pause)
Q. Did you finish?
A. Yes.
Q. Did you discuss this with Rothaug; and; can you confirm that particularly because of this severity he thought it was necessary to enlighten the people? That is, an enlightenment about the severity of the war time legislation?
A. Absolutely.
Q. Can you remember whether it was Rothaug who made efforts to have the severity of war time legislation explained to the people -whether these efforts of his were successful?
A. You mean to say that the hints upon the enlightening form of these sessions brought it about also that the population would understand it better now?
Q. Understanding on the part of the population, of the severity as well as a warning.
A. As far as I remember, the material that was reported was not sufficient in order to judge this - in order to draw such summarizing conclusions.
Q. Did you, yourself; make observations that the people; the population; felt that they had been warned?
A. That there was a fear of the Special Court is a matter of general knowledge. That this was in connection - this fear - with the efforts of Rothaug, I cannot judge whether this was so.
Q. Now, you also testified today, that Rothaug was once requested to state his opinion about sentences of three Special Courts.
A. Yes.
Q. Do you still remember which field this sentence of Saarbruecken was concerned with?
A. I cannot say that with certainty any more, whether it was Saarbruecken, or one of the other two. The questions were economic delicts, as fa.r as I remember. It is possible that there was a "black listing crime" - I don't know.
Q. Can you remember that in the Bamberg jurisdiction, merely the treatment of the black slaughtering was more lenient than in Nurnberg?
A. As far as our reports were concerned on this question, the question of black slaughtering, the treatment of the black slaughtering, was most important.
Q. Can you also remember that this entire question was brought up by a meeting of the food offices?
A. The food offices... I can't remember that now.
Q. Did you know that the question was a black slaughtering.
A. Yes, yes.
Q. Now, I want to go into your affidavit, insofar as I did not yet touch on these questions in it. Did you report the transfer of Rothaug to Berlin.
A. Yes.
Q. On the last page of your affidavit you have the following sentence:
"Usually there was the loophole of an application for reopening the case which had to decided by a criminal court. Rothaug knew how to eliminate this source of danger through his personal contact with the benches of the criminal and special courts, which were competent for these applications." Can you remember that sentence?
A. I recall it.
Q. Do you mean to say that Rothaug had ordered this personal contact, or did this identity of offices exist before Rothaug made the application to the Special Court?
A. This sentence describes Rothaug's personal explanation which he made on the occasion of a meeting.
Q Do you know whether this condition existed before?
I cannot say so with certainty. However, I should suppose so, because, after all, Rothaug regarded this regulation as particularly tropical in order to avoid difficulties in implications for the reopening of a case.
Q How can you justify the identity of the persons sittings in the Special Court in the Fourth Penal Chamber, that you described as having been brought about by Rothaug?
A Because he made remarks to that effect. He emphasized that his men, as he called them, were also sitting in the Fourth Penal Chamber.
Q You are a jurist, a lawyer, are you not?
A Yes.
Q Do you know the principle that for the reopening of a case the same court has to decide as the court from which the first decision original emanated?
A. I know that principle. According to the statements of Rothaug, however, in regard to the Special Courts at least at that time, there was an exception made.
Q Do you know where Dr. Malz is today?
A No. During the course of the war ho was removed. He went away.
Q When was he removed?
A I can't remember the exact point in time. However, it was after Kaltenbrunner took office.
Q How I want to ask another question in regard to the case of Doebig. Can you confirm the fact that Rothaug declined to be used as Oberlandesgerichts President, President of the District Court of Appeals?