A Yes, I did have some such cases too.
Q. Can you describe, from what you saw, heard, and otherwise observed during your trial of those cases involving Poles, can you describe the attitude and actions of Rothaug toward Poles?
A Yes, I can say a few things about that. Rothaug's attitude toward foreigners was the general Nazi attitude, not only that they considered then as inferior, but it was an attitude of enmity. That applied to Poles, but also to Frenchmen. The treatment of the Poles, or rather evaluation of the Poles, was worse than that of the Frenchmen. The Poles anyhow, through the order regarding Poles and Jews, had a very bad legal position and were deprived of a large number of legal means. In Rothaug's opinion and in his manner of leading a trial, it was as follows: a Pole's credibility appeared small from the beginning, and that for instance the statement of a German carried more weight than the statement of three or four Poles. During the trial, he could not speak directly to the Poles because they did not understand German, and all these matters had to be done via the interpreter and that meant considerable delay, so that he could not express his feelings freely because the interpretation meant a certain difficulty. In any case, his attitude of utter enmity toward the Poles was strongly apparent, also in the extent of the penalty.
Q Dr. Dorfmueller, sometime during the war, that is after 1939, a Pole named Jan Lopata was tried by the District Court in Neumarkt and sentenced to two years. That case was later sent back for retrial a second time. It was sent back from the Reich Supreme Court to the Nurnberg Special Court. Do you remember that case?
A Recently I again read this case and recalled this case after I saw the files.
Q On the file of that case that you say you saw, was there any writing of yours on the file that you had put there at the time?
A Yes. I recently convinced myself and recalled how this incident occurred. It was as follows: that the Pole, Lopata, because of physical assault had got a sentence of two years imprisonment, and that the Reich Supreme Court had objected to this penalty. The Reich Supreme Court had objected to the legal opinion and said that article 4 of the Order against Public Enemies had to be applied. Moreover, the Reich Supreme Court had in its decision expressly emphasized that the penalty of two years imprisonment should have been considerably more severe. I received the file at that time, as expert working on this case. First I forwarded them to the Special Court without an indictment because the Reich Supreme Court had referred the matter to the Special Court Nurnberg. The presiding judge then requested me to file an indictment as prescribed in the code of legal procedure, under consideration of the legal points of view mentioned by the Reich Supreme Court. I followed his order and wrote the indictment which was signed by Oberstaatsanwalt Dr. Schroeder; it then had the typewritten remark made by me, "Intended plea for penalty: 6 years in a penal camp." This penalty would have been considerably more severe than the first one, as the Reich Supreme Court had requested.
Q Dr. Dorfmueller, let me recount the facts briefly. The first time this Polo, Jan Lopata, was tried in Neumarkt, he was sentenced to two years, is that correct?
A Yes.
Q And then, after the case had been voided by the Reich Supreme Court and sent back to the Nurnberg Special Court, and you drew the indictment for the second trial, it was your intention to ask for six years, was it not?
A. Yes.
Q Then I assume from that that nothing appeared on the Reich Supreme Court's opinion to make the death penalty mandatory, is that correct?
A No, the Reich Supreme Court merely wrote that a considerably more severe penalty was appropriate.
Q And you thereby indicted the man a second tine and asked for six years, is that correct?
A Yes.
Q Now, although the facts of that case are already before the Tribunal, please recount briefly the sentence that Lopata received in the second trial.
A I was not present during the trial but a colleague of mine was present there. Lopata was sentenced to death. Apparently, this had been intended already before the trial because from the copy of the prosecution which was to be put in the files, I noticed that the words: "Six years in a penal camp," had been crossed out and the words "Death Sentence," had been written above it. That is, I myself, wrote the words, "Death Sentence."
Originally in the indictment, the appointment of a Pflichtverteidiger, (Defense Counsel) by the Court, had not been asked for, as is the usual case when a death sentence is intended, but later I applied for a Pflichtvertcidiger (Defense Counsel appointed by the Court). In the meantime, between the indictment and the motion, the case files were sent to the presiding judge Rothaug. He saw them and read them, and made a decision on them, so that according to my knowledge of the conditions at that time and the mentality of Rothaug, I came to the conclusion that the change in the amount of the penalty was due to Rothaug's influence.
Q Dr. Dorfmueller, did Rothaug, while he was presiding judge of the Nurnberg Special Court, have a deputy to handle decisions and matters of policy in his absence?
AAs far as I know, the deputy presiding judge was Dr. Oeschey, who was originally Landgerichtsrat District Court Counselor of the Special Court.
Q Were you at any time before you left in 1943 for the army, prosecutor in cases before Oeschey?
A Yes, I attended sessions at the time too when Oeschey was presiding judge.
Q Can you give a description, Doctor, so far as you heard and observed, of the professional relationship between Rothaug and Ocschey?
A Because I did not belong to the court itself, I had, of course, not a deep insight into these matters, but as far as I got to know at the time, Oeschey had been promoted from Landgerichtsrat to Landgerichtsdirector (from the District Court Judge to District Court Director) at Rothaug's request, because he had worked during a certain time at the Special Court as District Court Judge, and had proved his worth; his political opinion was beyond doubt and he had the reputation of issuing good judgments; because of both is professional aptitude and his absolute political reliability, within the meaning of this phrase, at that time, Rothaug then made him or had him made his deputy.
Q Doctor, can you explain briefly what you mean by "political reliability" of Oeschey in that connection?
A That is supposed to mean no more or less than the fact that Oeschey was a National Socialist as it appeared already from his position in regard to the party, he was just as unscrupulous and fanatical a National Socialist as Rothaug. That was the reason for his absolute political reliability.
Q Doctor, during the war, or even before, for that matter, did you know anything about the purpose and operation of the Nazi Socialist Lawyers League -- the Rechtswahrerbund?
A That differed from place to place. The Lawyers League, (the Rechtswahrerbund) had as its aim to take charge of the political education of its members; for that purpose it called meetings in which partly political, partly geopolitical, and partly other lectures were delivered. Moreover, it was the task of the Lawyers League to have a hand in the supervision of the Administration of penal justice and in the evaluation of jurists in personnel matters, especially in case of promotions.
Q So far as you know, Doctor, did Rudolf Oeschey hold any position in the Gau Legal Office?
AAs far as I know he was Gau Rechtsamts Leader.
Q Do you know what this title means; do you know what a person who holds that title is officially charged with doing?
AAbout the organization of the Gau leadership, I am not very well informed, but I think I can assume that the Gau Rechtsamt (Legal Office) was in charge of all questions in connection with law which occurred within the Gau, that is, to state its opinion in regard to important legal events and so forth.
Q Was it a Nazi organization?
A Without any doubt. Well, I don't know if it was a Nazi organization in the meaning of Law No. 52, etc., that I cannot say.
Q I was not asking you whether it was with reference to any law. The phrase is unfortunately because it had been used in other places. I am merely asking you if the organization you have just described was a party organization.
A Yes, of course.
Q What geographical area was encompassed by this Gau that you speak of? -- Approximately -
A It comprises Franconia; although I myself am not from Franconia and I don't know the borders very well, but as far as I know the Gau went down as far as the Danube; as far as the Bavarian Forests, Lower Bavaria, Upper Palatinate; and in the other direction, that is, towards the West, Ansbach. These were, in any case, the cities There the sessions of the Special Court were held, and I assumed that the borders of the Gau were in agreement with these borders, but I can't say it exactly, I regret.
Q Now, Doctor, after Oeschey became presiding judge of the Numberg Special Court, were you still here as prosecutor for a time after that occurred?
A No, as far as I know, Oeschey became presiding judge only after I had already become a soldier again, that is, after May, 1943.
MR. WOOLEYHAN: That completes the direct examination, Your Honors.
THE PRESIDENT: Do Defense Counsel desire to cross-examine this witness?
CROSS EXAMINATION BY DR. SCHILF: (Attorney for Defendants Mettgenberg and Klemm)
THE PRESIDENT: On whose behalf are you examing the witness?
DR. SCHILF: For the Defendants Klemm and Mettgenberg.
Q Witness, you mentioned a directive decree -- you said probably of 1941. This was in connection with a question that the Prosecution and the Court had to get in touch with each other regarding the extent of the penalty so that the plea and the sentence would not be too far apart.
You said that this directive was issued, but you did not say what authority issued it.
A If my memory does not deceive me, this directive had been issued by the Reich Ministry of Justice.
Q You stated that far this directive, as far as you remember, the reason we just repeated was given, namely, that if there were too much divergence between the plea and the sentence the public would render or have misgivings, so that the intention of the directive was to prevent this.
A Yes.
Q For this directive, which you yourself must have read, was there not also the second reason -- that the local uniformity of jurisdiction was aimed at, and that in consideration of the fact, that in the course of the war many simplification measures had been taken which also contained limitations of the legal means; that, therefore, the uniformity of jurisdiction had suffered because of the elimination of certain means of legal recourse; do you remember that also this second reason was hinted at in this directive or named in it?
A No, I don't remember that.
Q You said, however, you had read the directive at that time.
A I don't know that exactly, but I believe I remember having read, it once. Any way, it was a practical directive for us and there was no doubt about it; we complied for a long time with this directive so that the directive itself was no longer remembered because it was constantly being applied. Where it was to be found and under what form it was issued, I don't remember that any more.
Q Did you as Prosecutor not receive this directive through another office? Through the General Public Prosecutor?
A Certainly.
Q Did the General Public prosecutor in his district, or the Chief Public Prosecutor, in a closer sense, in your office, did he issue any directives in regard to it?
A Orally, we discussed the matter, I guess; in what form the directive was announced to the prosecutor I cannot say any more. I already stated that it was probably a confidential directive, so that it was probably made known through a special circulation. Whether there was, in addition, an accompanying directive of the Oberstaatsanwalt, I don't know. In any case, in official discussions this requirement of getting in touch was repeatedly discussed.
Q. You told the Court that this contact took place in the following manner: That, contrary to the former practice, after the completion of the submission of evidence a recess was taken?
A. Yes.
Q. Do you know whether all courts did this or whether this took place only here in your Special Court here in Nurnberg?
A. I can only report about my observations at the Special Court in Nurnberg, and I do not know anything about other courts.
Q. You did not discuss this practice in other courts with your colleagues, either?
A. No.
Q. Nor later?
A. No.
Q. Whether this practice which resulted as a consequence of this directive, namely, that the prosecutor went across the corridor into the judges' chamber, was also in use at other courts, do you know anything about it?
A. No.
Q. Now, a second point the Prosecution asked you about: the aims, tasks, purposes of the NS Lawyers' League; you gave a brief description. Did you mean to call this an exact description?
A. No, the answer was given absolutely offhand; I was never especially interested in the NS Lawyers' league, and I know only superficially about its aims.
Q. The answer which you gave to the Prosecution here, you would have to limit it subjectively -
A. Yes.
Q. That it was given today, offhand, but that it was in no way tested as to its correctness previously?
A. Not tested previously, but my answer was in accordance with my general impression and my general memory.
Q. You do admit, however, that this memory may be not quite corrent?
A. Of course, it might be that mistakes -
MR. WOOLEYHAN: May it please the Court, if the witness's memory is to be shown to be incorrect, I suggest that it be done by testimony solicited by questions, and not by having the witness make a conclusion as to whether or not it is.
THE PRESIDENT: It seems to me that the question is repetitious. The witness said he was answering from memory and did not pretend it would be accurate. To ask him a second question on that fact does not seem to accomplish anything. That was surely a repetition of a former question. Let us try to have an expeditious trial and not have repetitions.
Q. Witness, do you know that in the NS Lawyer's league, especially during the time when you were declared essential, and working at the court here, was more or less occupying itself only with charity matters; that is with taking care of soldiers as for as they were members, with matters of death insurance, and that it was a legal education and not a political education?
A. Yes, I can confirm that. About its charity activities, however, I do not know; but I do know that the lectures which took place were only very seldom of a purely political nature, and frequently of a geographical nature or of a general educational nature. There were films shown about the Reich Railroad and so forth. Thus no offensive political education took place here in Nurnberg during my time through the NS Lawyers' League.
Q. You mentioned also that the Lawyers' League had influence on personnel policies. Can you base that assumption on any facts that you still may remember today?
A. In general I know from my time as Assessor, that everyone who was supposed to be employed or promoted had an expert opinion given on him and to be pronounced reliable beyond doubt by the political offices. These expert opinions were given above all probably by the party office, that is, the Ortsgruppenleitungen (the local group leadership). At any rate, in my case when I was Assessor in Duessel dorf, I was told so.
They told me and required of me that as a young, not yet employed civil servant, I had to prove my positive political activity so that the local group would be in a position to give a political opinion about me. I assumed without knowing it exactly, that these political opinions, then went to the Gauleadership and that at the Gau office, the Gaurechtsaemter, (the Gau Legal Offices) worked on these matters because they belonged in their sphere of activity. I ask you not to ask me any detail about it because I do not know any.
Q. Dr. Dorfmueller, as far as I understood you, you obviously believe that the so-called Gau Legal Office had some connection with the NS Lawyers' League, or your answer could even be understood to mean the two were identical.
A. In regard to personnel and locality, they were identical because as far as I know, for instance Oberstaatsanwalt Denzler was Gau Leader of the Lawyers' League and at the same time had a position in the Gau Leadership.
Q. But on the organizational field the two were separate?
A. I do not know.
Q. The Lawyers' League was a formation of the Party, after all. The Gay Legal Office was, as you said before, on direct examination, an office of the Party or an organizational sub-division of the Party itself.
MR. WOOLEYHAN: Your Honors, I move to strike this last speech of the Defense Counsel in as much as it is lecturing the witness. It is not evidence; it is not testimony. Answers of that kind can only be solicited but questions, not by lecturing on the part of the Defense Counsel. I move that be stricken from the record.
THE PRESIDENT: In view of the fact that question was largely affirmative -- telling the witness things instead of asking questions, I think that criticism is well sustained. Beside that, this witness has misclaimed knowledge of many of these things. That question will be stricken from the record.
DR. SCHILF: After the witness stated that he does not know anything about these organizational matters, I have no further questions.
DR. WANDSCHNEIDER (for defendant Rothenberger):
Q. Witness, the first question which I have to put to you, I believe was answered already. I only would like to repeat it again to make sure. Do you know the conditions of criminal procedure, mainly from Franconia, or even only from Nurnberg?
A. What do you mean by that question?
Q. You as Prosecutor worked mainly here in Franconia, in Nurnberg?
A. I worked for six years in the Rhineland as assessor with the prosecution.
Q. Thus, of course, you also know conditions outside of Nurnberg and Franconia. The meaning of my question will be evident from the following questions. I now come back to the directive about which you were talking before. I believe you mentioned that this directive was from the year 1941 or 1940?
A. Not 1940, but 1941 or 1942.
Q. By trying to remember, maybe you can recall to your memory: is it possible that this directive dates already from the year 1939? That is, considerably earlier than you think?
A. I consider that absolutely impossible. In 1939, I was not yet at the Special Court. I believe that I know that this directive was issued only when I was already at the Special Court, and that was from the beginning of 1941, possibly from the end of 1940 on.
Q. That was not only a repetition of the already existing directive, but in your opinion it was a new one creating a new condition?
A. I believe quite certainly because the directive was regarded by us as extraordinarily limiting us and as of a new nature.
Q. Now, you described that this method that was required was for you a new and strange because it meant that the prosecution had to comply with the conception of the court, and because, therefore, that, as you said literally the independence of the prosecution was limited, Is it correct that this answer of yours is especially determined, because of the imposing personality of the judge - as was the case here especially in Nurnberg under the concrete circumstances?
A. I can imagine that in other localities this directive was regarded as little desirable, because through this decree every prosecutor was prevented from expressing his entire conviction in the plea.
Q. In order to avoid a leading question I did not express my question sufficiently clearly. I mean, witness, is it possible that through such directive concerning the contact between the judge and the prosecution the prosecutor as well as the judge -- feel both to be limited: I am asking you: under different conditions than those that existed here in Nurnberg, is it not conceivable that a feeling of using limited would apply more to the judges as a consequence - which judges, via the prosecution, found out about the intentions of the Reich Ministry of Justice?
Mr. Wooleyhan: Your Honors, I object to that question as asking for a personal opinion of the witness.
THE PRESIDENT: We are not giving any particular reason for it, but the objection will be sustained.
BY DR. WANDSCHNEIDER:
Q. Witness, you said, furthermore, that the attitude of the presiding judge of the Nurnberg Special Court towards foreigners was the same as the general attitude of the National Socialists. With that statement, did you mean the attitude of the leading National Socialist Party circles?
A. Yes, I meant the opinion, that the German people had an especially predominant position among the peoples that it was a master race, and that the other European peoples, the Eastern peoples, were of a subordinate nature, assistant peoples.
DR. WANDSCHNEIDER: Thank you very much. I have no further questions.
DR. KUBUSCHOK: One one question.
THE PRESIDENT: On whose behalf?
DR. KUBUSCHOK: For defendant Schlegelberger.
Q. A Brief Question. The decree which was just discussed, from the year 1941 or 1942; was this decree -- speaking quite generally - addressed to all prosecutions, or was it a special decree for Nurnberg?
A. I am surprised about this question because so far I assumed that this decree existed in writing, that everybody knew it from the files, and it is new to me that only through me here this decree should have become known in here. I said already, that I can only remember the written form of this decree very unclearly, and I don't remember any more whether it was a general decree or one only meant for Nurnberg.
THE PRESIDENT: Dr. Kubuschok, the answer of this witness to your question seems to be a good legal answer. He says this decree was in writing, and everybody knew it, or everybody should have known it, and if you have a different notion of the meaning, or of the form of that decree, from that which the witness might possibly entertain, it may be possible for you to introduce your notion on it from your own standpoint of it, and not ask this witness whether he is right or wrong about it. The cross-examination does not seem to lead to anything by asking this witness about something that was in writing.
DR. KUBUSCHOK: I believe, Mr. President, the difficulty lies in the fact that this document is not at hand in the form of a document. Since the witness mentioned it, I would like to know approximately the extend and purport of this decree. My previous question he did not answer; however, I would like permission to ask also the following question:
Q. If this decree was applied only to the prosecution in Nurnberg, would this not be something so surprising that you would still have to remember this fact?
A. Yes, at the time I assumed that it was a general decree.
Q. In this decree was it pointed out in any way that this method was to be applied only toward judges who were known as severe, strict judges, or was it left open entirely so that the prosecution actually got in touch and complied with every judge whether he was strict or lenient?
A. The decree was quite general and applied not only to Special Courts but also to other Courts without making any difference as to whether the judges were strict or not strict.
DR. KUBUSCHOK: Thank you.
THE PRESIDENT: Do any other defense counsel desire to further cross-examine?
DR. KOESSL (for defendant Rothaug):
Q. Witness, you said that Rothaug applied the Nazi laws fully. Can you tell me, since you were announced as an expert witness by the prosecution here, can you tell me, what means did a German judge have to apply laws only in part?
A. First of all I am objecting to being described as an expert witness because for many years I have had nothing to do with criminal law any more.
Q. The prosecution announced you as such.
A. What possibility -- a judge had--- I really don't understand the question.
Q. What possibility had a German judge to apply laws only half way?
A. This is legal - political or legal-philosophical problem, of the attitude of the judge toward a positive law. In my opinion, and probably also in the opinion of the legal theory, the judge has to apply the positive statute, and as far as I know that is the same in English law, without consideration as to whether the law is morally effective or not.
Q. Then I would like you to express clearly which reproach you are now putting to the defendant Rothaug, if he applied the laws which his State had issued?
A. Defense counsel, you are putting me into a wrong position. I am no longer a prosecutor, and I am not making any reproach to Rothaug. I am not a prosecutor. Therefore, the question is at least biased. But in spite of that, I will answer it.
What Rothaug in general can be reproached with that is the method in which he conducted his trials, that is, the severity, the excessive severity which he applied; and it is also probably the fact that he made too much use of his margin of discretion. The German war legislation had a number of elastic conceptions for example, the sound sentiment of the people, or the exploiting of war conditions, or the special despicability of the criminal deed, or the first article of the law of change. "If the protection of the peoples community and the need for just atonement require it" -- there were a number of elastic clauses which the judge could apply as he considered it necessary. This was especially clear, as far as the "sound sentiment of the people was concerned. This sound sentiment of the People was, after all, not found out, by ascertaining the sentiment of the people, but the judge of his own, that is, subjectively made an estimation, an evaluation - what would be of service to the People's Community, in what way, something arbitrary entered the jurisdiction, especially Rothaug's and an especial severeness. These legal regulations gave him the possibility of applying a specially severe administration of justice, and that under political points of view.
Q. Can you confirm that actually the penalties issued by the Special Court in Nurnberg were very strongly differentiated?
A. Counsel, there were severe and light penalties, according to the facts. That for an actually very unimportant deed, there was not always a penitentiary sentence pronounced -- that has to be admitted.
Q. Now you said that Rothaug also determined the spirit of the prosecution?
A. Yes, I said so.
Q. Especially, you said that Rothaug had a special influence on Chief Prosecutors Schroeder, and also... I don't know... Denzler.
A. Kenzler, I cannot say with certainty. I don't know Denzler very well. I wanted to limit my statement to Schroeder.
Q. Was Schroeker not subordinate to the General Public Prosecutor?
A. Yes.
Q. Is it correct that the Oberstaatsanwalt, the chief public prosecutor, also always had to ask for the opinion of the Ministry if he applied for death penalty?
A. No. It is not so that in each case when the death penalty is proposed, the Ministry should be informed. The death penalty of course, had to be submitted later to the Ministry, under a clemency plea, but it would have required much to much time and would have been too inconvenient if the Ministry had to be informed in every case before hand. The discretional power of the chief public prosecutor went as far as I remember to such an extent that he could ask for the death penalty on his own initiative. To be sure, there was a decree according to which in regard to so-called "important events" he had to report in advance, but not every occurrence which let to a death penalty was to my knowledge, an important occurrence.
THE PRESIDENT: We will recess at this time for fifteen minutes.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
DR. KOESSL: (For the defendant Rothaug).
I ask to be permitted to continue my cross examination.
BY DR. KOESSL:
Q. Witness, in the direct examination you said that Rothaug used very severe means against any kind of objection, and in this connection you quoted a statement which Rothaug made to you personally that he who contradicted him made the tyrant in him come to the surface. Were you alone with Rothaug at the time when he made that statement?
A. I believe, yes.
Q. Was it meant seriously?
A. What?
Q. Was it meant seriously, that statement?
A. I believe so. That is to say, I believe so, because that statement was not alien to his personality, but was quite according to his character.
Q. Could you mention one case to me where a prosecutor suffered a disadvantage from Rotharg because he contradicted him?
A. Contradictions against Rothaug, as I have said already, as in general against National Socialist leading personalities, were only possible in a light and mild form. A sharp contradiction against him was impossible. Therefore if in any case one wanted to exert influence toward leniency, one had to wait for an opportune moment, for instance during a trip on the railroad, or at the hotel or at any occasion where he was in a better mood, because frequently he was in a very bad mood. During such moments it was possible to try, in the course of conversation, to make objections of a principal or special nature, but these objections had to be dropped as soon as it became more tenacious, because then Rothaug became disagreeable, suppressed the objection and would not admit it, and even went so far as to suspect one of political tendencies; thus, objections were answered by political suspicions and then Rothaug behaved as if one had a political or ideological sympathy for the particular defendant for whom one intervened.
Thus any base for an objection was nibbed in the bud. An outspoken contradiction, that is, a contradiction which would lead to a conflict, had not become known to me; therefore I could not say about any disadvantages which grew out of that.
Q. What about the burden of work which Rothaug had? Maybe his had mood was due to that, or to his stomach disease?
A. Rothaug no doubt had too much work. He took too many cases, and the burden of work considered from the efficiency viewpoint always made me have a certain respect for the man. I know that he studied and prepared his files very carefully and that frequently he worked until late at night, but in spite of that appeared on time the next morning for the session. Just because I knew that he was not a healthy man, I was frequently surprised that he could carry that burden of work, and I tried to explain it that there were psychological reasons, his strong interest for this work which made it possible for him to overcome these physical difficulties.
Q. As already his own office, as you confirmed, brought about so much work for him, how was it possible that Rothaug could look into the work of the Prosecution? That I cannot understand.
A. Influencing the Prosecution did not entail any more work for him. The way he did it was as I already reported, that at every meeting which was necessary, on duty trips, and so on, he influenced the Prosecution, and no doubt in several cases, because such cases had been submitted to him for his consideration which had not yet been brought before the court and there frequently, before the indictment was served, he made mention of his opinion, which consequently was law for the Prosecution.
Q. Did you yourself ask Rothaug for his opinion in cases which had not yet been submitted to him?
A. It is not impossible that at times I was in his office for such reasons, but I can not remember any details.
Q. Do you know of other Prosecutors that they liked to ask him for his advice on difficult cases?