We now turn to the excerpt relating, to the Gestapo and the SD. While the Gestapo is not specifically referred to in Count IV; the IMT Judgement deals with the Gestapo and SD as a single unit, and therefore, in referring to the SD we have too, of necessity, refer to the Gestapo. The excerpt which I am now about to read, may be found on page 16941 of the English and 16511 of the German.
"The internal structure of the RSHA shows the manner in which it consolidated the offices of the security police with those of the SD. The RSHA was divided into seven offices (Amter), two of which (Amt I and Amt II) dealt with the administrative matters. The security police were represented by Amt IV, the head office of the Gestapo, and by Amt. V, the head office of the criminal police. The SD were represented by Amt III, the head office for SD activities inside Germany, by Amt VI, the head office for SD activities outside of Germany and by Amt VII, the office for ideological research. Shortly after the creation of the RSHA, in November 1939, the security police was 'coordinated' with the SS by taking all officials of the Gestapo and criminal police into the SS at ranks equivalent to their positions.
"The creation of the RSHA represented the formalization, at the top level, of the relationship under which the SD served as the intelligence agency for the security police. A similar coordination existed in the local offices. Within Germany and areas which were incorporated within the Reich for the purposes of civil administration, local offices of the Gestapo, criminal police, and SD were formally separate. They were subject to coordination by inspectors of the security police and SD on the staffs of the local higher SS and police leaders, however, and one of the principal functions of the local SD units was to serve as the intelligence agency for the local Gestapo units. In the occupied territories the formal relationship between local units of the Gestapo, criminal police, and SD was slightly closer. They were organized into local units of the security police and SD and were under the control of both the RSHA and of the higher SS and police leader who was appointed by Himmler to serve on the staff of the occupying authority.
The offices of the security police and SD in occupied territory were composed of departments corresponding to the various Amts of the RSHA. In occupied territories which were still considered to be operational military areas or where German control had not been formally established, the organization of the security police and SD was only slightly changed. Members of the Gestapo, Kripo, and SD were joined together into military type organizations known as Einsatz Kommandos and Einsatsgruppen in which the key positions were held by members of the Gestapo, Kripo, and SD and in which members of the order of police, the Waffan SS and even the Wehrmacht were used as auxiliaries. These organizations were under the over-all control of the RSHA, but in front line areas were under the operational control of the appropriate army commander."
We now turn to 16943 in the English and 16541 in the German.
"The security police and SD was a voluntary organization. It is true that many civil servants and administrative officials were transferred into the security police. The claim that this transfer was compulsory amounts to nothing more than the claim that they had to accept the transfer or resign their positions, with the possibility of having incurred official disfavor. During the war a member of the security police and Sd did not have a free choice of assignments within that organization and the refusal to accept a particular position, especially when serving in occupied territory, might have led to serious punishment. The fact remains, however, that all members of the security police and SD joined the organization voluntarily under no other sanction than the desire to retain their positions as officials."
We not turn to the top of page 10945 in the English and 16515 in the German.
"CRIMINAL ACTIVITY -- Originally, one of the primary functions of the Gestapo was the prevention of any political opposition to the Nazi regime, a function which it performed with the assistance of the SD. The principal weapon used in performing this function was the concentration camp.
The Gestapo did not have administrative control over the concentration camps, but, acting through the RSHA, was responsible for the detention of political prisoners in those camps. Gestapo officials were usually responsible for the interrogation of political prisoners at the camps.
"The Gestapo and the SD also dealt with charges of treason and with questions relating to the press, the churches, and the Jews. As the Nazi program of anti-Semitic persecution increased in intensity the role played by these groups became increasingly important. In the early morning of November 10, 1938, Heydrich sent a telegram to all offices of the Gestapo and SD giving instructions for the organization of the programs of that date and instructing them to arrest as many Jews as the prisons could hold 'especially rich ones', but to be careful that those arrested were healty and not too old. By November 11, 1938; 20,000 Jews had been arrested and many were sent to concentration camps. On January 24, 1939; Heydrich, the chief of the security police and SD, was charged with furthering the emigration and evacuation of Jews from Germany and m July 31; 19bl; with bringing about a complete solution of the Jewish problem in German dominated Europe. A special section of the Gestapo office of the RSHA under Standartenfuehrer Eichmann was set up with responsibility for Jewish matters which employed its own agents to investigate the Jewish problem in occupied territory. Local offices of the Gestapo were used first to supervise the emigration of Jews and later to deport them to the east both from Germany and from the territories occupied during the war. Einsatzgruppen of the security police and SD operating behind the lines of the eastern front engaged in the wholesale massacre of Jews. A special detachment from Gestapo headquarters in the RSHA was used to arrange for the deportation of Jews from Axis satellites to Germany for the 'final solution'."
We now turn to page 16958 in the English and 16519 in the German. We only wish to read a portion of that.
"The Gestapo and SD were used for purposes which were criminal under the charter involving the persecution and extermination of the Jews, brutalities and killings in concentration camps, excesses in the administration of occupied territories, the administration of the slave labor program, and the mistreatment and murder of prisoners of war. The defendant Kaltenbrunner, who was a member of this organization, was among those who used it for these purposes.
"The Tribunal --" we skip to the last paragraph now, of the Conclusion -- "The Tribunal declares to be criminal within the meaning of the charter the group composed of those members of the Gestapo and SD holding the positions enumerated in the preceding paragraph who became or remained members of the organization with knowledge that it was being used for the commission of acts declared criminal by article 6 of the charter, or who were personally implicated as members of the organization in the commission of such crimes. The basis for this finding is the participation of the organization in war crimes and crimes against humanity connected with the war; this group declared criminal can not include, therefore, persons who had ceased to hold the positions enumerated in the preceding paragraph prior to 1 September 1939."
Now, on page 16950 -- or rather, 16950 in the English, that follows immediately what I have just read. I merely call attention to the fact that the Tribunal on page 16950 corrects the impression which was erroneous in setting out the portions of the organization which they had previously declared to be criminal. It is a little confusing, and I merely point that out so that in taking judicial notice we can be certain that the portion on page 16590 is included.
We turn now to the SS, on page 16956, in the English, and 16525 in the German:
"It is impossible to single out any one portion of the SS which was not involved in these criminal activities. The Allgemeine SS was an active participant in the persecution of the Jews and was used as a source of concentration camp guards. Units of the Waffen SS were directly involved in the killing of prisoners of war and the atrocities in occupied countries. It supplied personnel for the Einsatzgruppen, and had command over the concentration camp guards after its absorption of the Totenkopf SS, which originally controlled the system. Various SS police units were also widely used in the atrocities in occupied countries and the extermination of the Jews there. The SS central organization supervised the activities of these various formations and was responsible for such special projects as the human experiments and 'final solution' of the Jewish question.
"The Tribunal finds that knowledge of those criminals activities was sufficiently general to justify declaring that the SS was a criminal organization to tho extent hereinafter described. It does appeal that an attempt was made to keep secret some phases of its activities, but its criminal programs were so widespread, and involved alsughter on such a gigantic scale, that its criminal activities must have been widely known. It must be recognized, moreover, that the criminal activities of the SS followed quite logically from the principles on which it was organized. Every effort had been made to make the SS a highly disciplined organization composed of the elite of National Socialism. Himmler had stated that there were people in Germany 'who become sick when they see those black coats' and that he did not expect that 'they should be loved by to many.
' Himmler also indicated his view that tho SS was concerned with perpetuating tho elite racial stock with the object of making Europe a Germanic continent and the SS was instructed that it was designed to assist the Nazi Government in the ultimate domination of Europe and the elimination of all inferior races. This mystic and fanatical belief in the superiority of the Nordic German developed into the studied contempt and oven hatred of other races which led to criminal activities of the type outlined above being considered as a matter of course if not a natter of pride. The actions of a soldier of the Waffen SS who in September 1939, acting entirely on his own initiative, killed 50 Jewish laborers whom he had been guarding, were described by the statement that as an SS man, he was 'particularly sensitive to the sight of Jews,' and had acted 'quite thoughtlessly in a youthful spirit of adventure' and a sentence of 3 years imprisonment imposed on him was dropped under an amnesty. Hess wrote with truth that the Waffen SS were more suitable for the specific tasks to be solved in occupied territory owing to their ostensive training in questions of race and nationality. Himmler in a series of speeches made in 1943, indicated his pride in the ability of the SS to carry out these criminal acts. He encouraged this men to be 'tough and ruthless,' he spoke of shooting 'thousands of leading Poles,' and thanked them for their cooperation and lack of squeamishness at the sight of hundreds and thousands of corpses of their victims. He extolled ruthlessness in exterminating the Jewish race and later described this process as 'delousing These speeches show that the general attitude prevailing in the SS was consistent with these criminal acts.
"Conclusions. The SS was utilized for purposes which were criminal under the Charter involving the persecution and extermination of the Jews, brutalities and killings in concentration camps, excesses in the administration of occupied territories, the administration of the slave labor program and the mistreatment and murder of prisoners of war. The defendant Kaltenbrunner was a member of the SS implicated in these activities. In dealing with the SS the Tribunal includes all parsons who have been officially accepted as members of the SS including the members of the Allgemeine SS, members of the Waffen SS, members of the SS Totenkopf Verbaende and the members of any of the different police forces who were members of the SS. The Tribunal does not include the so-called SS riding units."
That is the extent of excerpts pertaining to the SS which we wish to read at this time, and we, therefore, offer as Exhibit 443 the portions of the IMT Judgment which extend from pages 16932 through 16959, inclusive. With the Court's permission we will offer this physically to the representative of the Secretary General when we have coordinated the pages with the printed text. I expect, Your Honors, that will be this afternoon.
THE PRESIDENT: What did you say about this afternoon?
MR. KING: I expect that we will offer the document physically, together with the references to the printed version of the judgment, this afternoon.
May I inquire now of one -- I see Dr. Schilf has gone out... I wanted to see if he found that document satisfactory. I wonder if we might not take a recess at this time. We will begin either with Document 4 Supplement -
THE PRESIDENT: You can go ahead. He has until this afternoon anyhow.
MR. KING: I thought if he were in the court we could settle it now.
We will begin Document 4 Supplement or with the witness Defrmueller... I am not sure at this moment which will come first after the recess.
THE PRESIDENT: We will recess at this time until onethirty o'clock this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION.
(The hearing reconvened at 1330 hours, 12 May 1947)
THE MARSHAL: The Tribunal is again in session.
MR. KING: Dr. Schilf has informed me that he now has seen the photostatic original of the document 615-PS and has no objection to its admission. We therefore ask that the Secretary General replace the original photostatic copy that was submitted as the exhibit by the present legible copy which we now have.
THE PRESIDENT: The conditions that were attached to Exhibit 393 are now removed.
MR. KING: We now wish to hand to the Secretary General Exhibit No. 43, which is an excerpt from the IMT Opinion-Judgment relating to Nazi Organization. This is offered in connection with Count IV, portions of which were read prior to the present session. The page numbers in the official report of the IMT, from Volume I, are as follows; Beginning in the middle of page 257, and extending through the middle of page 273.
THE PRESIDENT: The document will be received.
MR. WOOLEYHAN: The prosecution calls the witness Dorfmueller.
MARTIN DORFMUELLER, a witness, took the stand and testified follows:
JUDGE BLAIR: Will this witness take the German oath?
MR. WOOLEYHAN: Yes, Your Honor.
JUDGE BLAIR: Hold up your right hand and repeat after me the following oath:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath)
You mat be seated.
DIRECT EXAMINATION BY DR. WOOLEYHAN:
Q. Witness, will you please state for the Court your full name, 3154a the place where you were born, and the date?
A. Dr. Martin Dorfmueller, born 9 December 1904 in Rheinhausen at the Lower Rhine.
Q. Dr. Dorfmueller, have you had legal education?
A. Yes, I studied law and I passed the examinations.
A. Would you describe briefly the places and dates where you had your legal education?
A. After concluding my school education at the humanistic Gymnasium in Duisburg, I studied law at the Universities of Heidelberg, Rostock, Bonn and Berlin. I passed my first legal state examination at the Kammergericht, (the highest Prussian court of appeals) in Berlin, the assessor examination, at the Reich Ministry of Justice in Berlin. I passed my Doctor's examination in 1932, after the assessor examination, and I passed it in Heidelberg.
Q. Dr. Dorfmueller, were you ever associated in any way with the Special Court at Nurnberg?
A. Yes; I came to the Special Court in Nurnberg during the war, after I had returned from the campaign in Prance. I took part in the campaign in France as a soldier. I had been declared essential, and in September of 1939 I returned to Nurnberg. A few weeks or months--I believe it was months--afterwards, I was detailed as Prosecutor to the Special Court.
Q. Did you continue as Prosecutor at the Special Court in Nurnberg continuously from that time until the end of the war?
A. No. I was again drafted into the army as a soldier at the beginning of 1943. My deferment was rescinded, and I again came into the Wehrmacht until the end of the war.
Q. Then, Dr. Derfmueller, could you sum up the number of years altogether between 1937 and 1945, the number of years during which you were a prosecutor before the Nurnberg Special Court? How many?
A. I was at the Nurnberg Special Court either from the beginning of 1941 or the end of 1940, I don't remember exactly any more, until the end of April 1943; that is, somewhat longer than two years.
Q, During this time, Dr. Dorfmuellar, that you were a prosecutor before the Nurnberg Special Court, between the years of 1940 and 1943, did you know Oswald Rothaug?
A. Yes. He was, after all, the presiding judge of the Special Court at that time. I also knew him before, not at the Special Court, but occasionally when they had jury trials.
Q. During your activity as prosecutor here at the Special Court, did your office--namely, the office of the prosecution for the Nurnberg Special Court--fully enforce the Nazi criminal laws?
A. I can answer this question with "yes". First, of course, the question was who was in charge of the prosecutor's office. When I was here, there were several chief public prosecutors, there were four altogether. There were, first, Dr. Hoesch, then Chief Public Prosecutor Denzler, then First Public Prosecutor Hoffmann, and finally, Dr. Schroeder. Of course, the manner of leading the office was determined by the Chief Public Prosecutors (Oberstatsanerwelte). I only served under Dr. Hoesch one month. The gentlemen Denzler and Schroeder were doubtlessly National Socialists and therefore during the time when they were in charge of the office, the National Socialist criminal legislation was enforced one hundred percent. To be sure, it was somewhat different when the First Public Prosecutor Hoffmann was in charge, who certainly was not a radical Nazi. Under his leadership of the office an absolutely more reasonable and more moderate tone prevailed in the office.
Q. Doctor, you state that this hundred percent enforcement of Nazi criminal legislation was accomplished be the office of the prosecution. Do you know who was the chief instigator for that?
A. I can answer that question in the following way, that without doubt it was the spirit and the influence of Landgerichts-Director Rothaug who determined the spirit of the prosecution.
His influence was also in back of the Oberstaatsanwaelte, (the chief public prosecutore, at least in back of Dr. Schroeder. His influence was especially extensive in the Nurnberg Palace of Justice, and he practically decided about life and death.
Q. Dr. Dorfmueller, can you describe the facts and occurrences which lead you to say that the prosecution was controlled by Rothaug? He wasn't in the prosecution, he was a judge. Now how could he, how did he control the one hundred percent enforcement of Nazi criminal law by the prosecutors?
A. Well, I myself, as a public prosecutor, was not a member of the Special Court. Therefore, I was not immediately subordinate to Rothaug; therefore I could not receive instructions from him either. However, it was as follows; He was an extraordinarily viralent person and a very important personality who made his political influence felt not only among the members of the Court, but also to the prosecution. He himself not only propagated National Socialist legislation not only in public--that is, in court sessions and lectures-but he did it, constantly, toward his associates during meetings and on official trips, and also on private occasions. He also did it in regard to the prosecutors. The prosecutors were not only together with the Court in the actual sessions of the Court, but also on official trips; and during these trips there was the possibility of having a very close contact. During these official trips Rothaug spoke almost ininterruptedly about criminal and political matters because he did not have or hardly had, any other interests. On these occasions not only individual cases were discussed, but also the basic principles of the National Socialist Administration of Justice, which he always defended, again end again, toward us. So that was the spiritual influence which he exerted.
Moreover, we knew that he was in possission of a very strong position of power politically, because he was in teach with the Gau leadership.
We knew the name of Haberkern in this connection. He also had relationships with the SD; he spoke about this himself. I remember that he spoke about it and that he also mentioned the name Friedrich, which was a name not known to me. That was the manifestation of a certain political power which he had. Moreover, he was a good friend of Dr. Schroeder's, so that in that way too his influence reached the prosecution.
Q. Dr. Schroeder at that time being your boss, is that it?
A. Yes.
Q. During all these discussions that Rothaug had with the Prosecution that you have just described, from those discussions and from what Rothaug said did you gather what Roghaug's conception was of the manner in which Nazi criminal legislation should be enforced?
A. Yes. I never heard a word of criticism of Nazi laws from is mouth. On the contrary, he approved of all these laws without any doubt and he defended them even toward basic objections. And in practice one could say he applied them in an exaggerated manner.
Q. Dr. Dorfmueller, did you share that opinion of Rothaug's which you have just described?
A. Rothaug's conception I did not share for the reason alone that Rothaug was a very radical National Socialist and I was not. Therefore I also did not approve his opinions on criminal law and politics not of carrying on the office, and I did not approve of carrying on a trial, and I can say that I was frequently enraged about these matters.
Q. Dr. Dorfmueller, in these moments of frequent rage that you had against the attitude and methods of Rothaug did you ever attempt to resist those ideas which he attempted to have you out in practice?
A. Of course, this question is a very precarious question. The attempt to resist Rothaug was just as difficult as any resistance toward any other Nazi holder of power, because Rothaug did not permit any resistance and no objection, Against any objection he took very sharp measures. First, if one uttered an objection, even if it was only in a mild form and only on the occasion of a conversation, he was at first not very sharp, but he showed his contempt. He behaved as if one did not have the real political knowledge, also no knowledge of criminal law, and as if one just could not take part in such a conversation. If, then, however, one maintained one's objection he become very strict, and his manner would be demonstrated by a sentence which he once said to me. He said, "Whoever contradicts me arouses the tyrant within me". Those are his words.
His manner was absolutely tyrannical. Asolutely dictatorial.
Q. Doctor, one moment. When Rethaug stated that phrase which you have just quoted, namely, "anyone who resists me brings out the tyrant in me," to whom did he say that?
A. To me, in a private conversation. I believe that it took place in Amberg. He said it to me personally, that is, not in a session of the court.
Q. You at that time were acting as Prosecutor before his court?
A. We were on an official trip in Amberg, and outside of the official business we discussed matters, and in some kind of a connection which I don't remember, he uttered this sentence. I said, that resistance against Rothaug was very difficult because it was dangerous, and only for reasons of power because he had a position of power, but because he made use of this position of power without any consideration, as was his manner. My attempts for more leniency at first, of course, were limited to my own sphere of activity, that is, the prosecution. I could say a great deal about this, but I don't think that it is relevant here. But I also contradicted Rothaug, especially in cases when it was a question of the amount of the penalty and the seriousness of the penalty. I clearly remember several cases in which I made such an objection during the recess which had to be taken before the final plea.
Q. Dr. Dorfmueller, do you know of any orders or directives that were given to your office namely the prosecution, by the Reich ministry of Justice with the intention of requiring the Prosecution's compliance with Rothaug's wishes? Do you know of any such orders or directives?
A. Yes, only the directives did not say: compliance with Rothaug's wishes, but compliance with the wishes of the court. Directives were issued -- I don't remember exactly in what year -- perhaps 1941 or '42. I believe that I also read the written copy of this directive, and I guess it was confidential, or only for official use.
In this directive the prosecutors were instructed, before they made their plea to get in touch with the court in a manner that was not noticeable as far as I remember and then to make the conception of the Court the basis of their own plea, especially in regard to the amount of penalty. This directive was based on the reason that they wanted to avoid the impression among the public as if the conception of the law of the court and the Prosecution were different. This directive was very strange for us, if I may say so. Certainly it was occasioned by certain reasons of state policy, but in our opinion it was contradictory to the principle of the independence of the prosecution and the Court, which was expressed in Paragraph 150 of the Judicative Act. I myself was still educated in the school of the old conception of law before 1933, and I know that I was quite angry about this directive, because they limited the independance of the Prosecution.
Q. Dr. Dorfmueller, with regard to this directive requiring you as a prosecutor to get together with the Court and arrange matters beforehand, did you, in the cases you prosecuted before Rothaug, endeavor to obey that directive?
A. Yes. There was no other possibility. In most cases after the submission of evidence had been completed, a short recess was taken, while formerly normally immediately after the submission of evidence the plea used to follow. Thus the Court called a recess without my making any application for such a recess; that had become usage. The Court went into the chamber and the Prosecutor also went into the counsel chamber. He did not go through the same door; that is, not immediately from the courtroom, but via the hall. This measure also served for the getting in touch between the Prosecution and the Court, The Prosecutor found out the opinion of the Court regarding the criminal deed, the legal conception, and the amount of penalty and had to make this conception the basis of his plea. Often it also happened that the presiding judge wrote a note on which he wrote down the penalty that was to be demanded -- that is, for example, three years' penitentiary, then he handed it to the prosecutor and the prosecutor had to ask for that amount of punishment.
Q. Dr. Dorfmueller, at any time during a trial in which you were a prosecutor before Rothaug, did he ever direct an attack against you from the bench?
A. An "attack" is probably too strong an expression. It was so that during the entire session I did not put in an appearance with the exception of the plea. The Prosecutor did not lead the trial. On the contrary. He did. not have anything to do with the conduct of the trial, and he exerted no influence on it. Even putting of questions was sometimes denied to him, so that he had to limit himself to the plea. During the plea I did not experience any attacks on his part. I did hear side remarks which he made, but not interruptions or reprimands during the session. It was also his effort toward the outside, to make it appear as though there were solidarity between the Court and the Prosecution.
Q. Dr. Dorfmueller, if for example a witness during a trial over which Rothaug presided did not answer questions which you as Prosecutor or any one else may have asked, from your experience what would Rothaug do to that witness, as far as you remember, to correct his answers?
A Well, to that point it has to be said that on the whole only Rothaug himself put questions. It did happen that witnesses were severely reprimanded so that one can say they were frightened to a certain extent by being threatened about political disadvantages too. I experienced it that Rothaug, in the case of a witness whose statements wore not agreeable to him, asked him, "Are you in the Party?" "Who is your ;ocal group leader?" "Are you in the SA?" "What is the name of your Sturmfuehrer?" Then he said, "We shall notify your local group leader." In my conception, therefore, that was a method in order to impress the witness somehow. It often happened I wish to correct: It sometimes happened that such strong and constant reprimands were made to the witnesses that they burst into tears.
Q You have stated, Doctor, that your last boss before the end of the war was Schroeder. Is that correct?
A Yes.
Q Now, can you tell me what period of time it was, in term of years, that Schroeder was your boss? From when until when?
A Schroeder - just a moment - supposedly he came in 1941, at the beginning of 1941, as far as I remember, and then he was my boss until I was again drafted into the Army as a soldier, that is, until 1943. But as far as I know, he continued to be chief public prosecutor.
Q Yes. Now during the time that you have described, between 1941 and 1943 while Schroeder was your boss in the office of the prosecution, from what you saw and heard can you describe Schroeder's relationship to Rothaug?
A I guess I said already that Schroeder and Rothaug had closer contact than was usually the case in office relations.
We, as subordinates, did not find out too much about it. We only knew the following: Schroeder was a good friend of Rothaug's. They used the familiar form of address toward each other, "Du." They were both followers of the Ludendorff movement as far as I know. They had the same ideological opinions. Whether they had much social contact privately, I don't know. Characteristic of their relationship to each other is perhaps the following fact; namely, the designation that was invented for Dr. Schroeder. Someone had found the not very tasteful designation of "The Tenno" for Dr. Rothaug. That was a name which I, myself, never used because I considered it too manial. Then in this connection the equally ridiculous "The Emperor of Manchuku," was created for Schroeder. That was supposed to mean that he was subordinate to Rothaug and dependent upon him.
Q Tell me again, I have forgotten, what was Schroeder's title during these years that you speak of now?
A That was, as one can say, a nickname, "The Emperor of Manchuku."
Q We understand that, Doctor. I am asking you what was Dr. Schroeder's official title?
A It was Oberstaatsanwalt (Chief Public Prosecutor).
Q At the Special Court, at least, in Nurnberg?
A Yes. He was Oberstaatsanwalt at the District Court in Nurnberg and at the same time the Chief of the Prosecutor's Office at the Special Court. That was his official title, which is also on the stamp which was put on the files: "Chief of the Prosecutor's Office at the Special Court."
Q Doctor, did you ever try any cases before the Nurn berg Special Court when it was presided over by Rothaug wherein the defendants were Poles?