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?
A. I could not tell you any details of that kind. I can only say that the Chief Prosecutor at times asked him.
Q. Of assistant prosecutors you could not speak?
A. No.
Q. Then you mentioned the limitation of the right to ask questions.
A. Yes, it was Rothaug's tendency, generally speaking, to keep the reins in his hand of all proceedings and to see to it that the defense counsel as well as the prosecutors would not put any unpleasant questions which could disturb his intentions. In the case of defense counsel I experienced that frequently. It was the usual picture of a trial that defense counsel, during the entire proceedings, sat there silently without saying a word, and only at the end made their plea, and that frequently in a very mild form, because anything, any formula, that would sound suspicious would arouse the displeasure of Rothaug. He did not like to admit questions. I remember, since you ask me about it, I remember one case where defense counsel, I think he was from Dachau, was pleading for a defendant during a trial at Weiden and wanted to put questions to the defendant. According to the rules of procedure, the questioning of the defendant was the right of the presiding judge and Rothaug refused that counsel to put direct questions to the defendant.
Q. One moment, witness; this denial was justified by the code of legal procedure?
A. Yes, in the case of the defendant, not in the case of a witness. The defendant is to be questioned by the presiding judge. Witnesses can be questioned by counsel, as far as I am informed.
Q. Then if the right to put questions was limited, the counsel in question could ask for a decision from the Tribunal.
A. He did that, too. He asked for the permission to put several questions to the defendant, but it appeared that the presiding judge did not like these questions and he rejected it. Counsel asked for a decision by the bench and the judges recessed to consider it.
In the pause during the intermission while I remained at the bench counsel came to see me and he was very much disturbed about it. He was a young fellow, who said, "Prosecutor, I do not understand those conditions. I am Ortsgruppenleiter. I have frequently been a defense counsel in Munich, but such sharp rejections and such manner of treatment I have never experienced before. Is it always like that here?" Then, of course, considering my position, I could only say, "Counsel, you see how things are here. I can only shrug my shoulders and regret it. I have no influence." Then the judges returned, and rejected the questions by stating as usual that this complex of questions had already been dealt with exhaustively.
Q. But counsel still had a legal remedy, didn't he?
A. I do not know.
Q. Didn't he have a legal remedy to ask for a retrial? Didn't he do that?
A. The sentence by the Special Court was in force, and there was, of course a possibility of requesting the resumption of proceedings, but I do not remember a single case where an application for resumption of trial would have been successful. As a matter of routine, applications for resumption were rejected.
Q. Were such applications for resumption made frequently at all?
A. Yes, indeed. Especially in cases of defendants who had been sentenced to death.
Q. You said a witness was asked about his Ortsgruppenleiter and his SA leader. What was the name of the witness? Can you tell me that?
A. No, of course not.
Q. Could you tell me the local community from which he came?
A. No, that is quite impossible; I don't remember it.
Q. Could you tell me the case during which that happened?
A. Counsel, I believe you understand that you ask me to do something impossible. These matters happened six or seven years ago. It was some normal penal proceeding. I don't even remember the name of the defendant. I only know about this episode, but that episode I remember very clearly.
Q. Was there any actual reason for that question about the Ortsgruppenleiter? Were there any actual reasons?
A. No, no, that was not only the question about the Ortsgruppenleiter, it was also about the SA leader.
Q. But there may have been a reason for that question that it was necessary to ask about these two people?
A. No, there was no possibility of any misunderstanding of that kind. It was just an attempt to impress the witness by threatening him that he would have disadvantages from political instances.
Q. Did the witness do anything about it?
A. The witness probably didn't; at least I don't know anything about it. Whether Rothaug did anything about it, that is to say, whether that report to the Ortsgruppenleiter was actually made, I could not tell. Rothaug threatened lawyers frequently that he would make reports to the Bar Association, but as far as I know, these reports were usually not made, but threats were offered.
Q. Was the president of the District Court of Appeals at that session or did he hear about it?
Did you report to him?
A. No.
Q. You mentioned the relation to the Chief Prosecutor Schroeder and you also mentioned the nickname, "Emperor of Manchukuo."?
A. Yes.
Q. Where was that nickname used? Who invented it?
A. It was used in our offices and I believe also among the members of the Special Court. It did not enjoy as much publicity as the nickname, "Tenno". I, personally, never mentioned it, but it was used. It was possibly coined as a pun, "Tenno", and the supplement then was "Emperor of Manchukuo", but the basis for that comparison was of course the dependency.
Q. Was that nickname used among colleagues for the fun of it, or seriously?
A. As every nickname, it was a name just for fun, but therefore it was no less characteristic.
Q. You mentioned proceedings against Frenchmen?
A. Yes.
Q. Do you know of any case where a Frenchman was brought before Rothaug?
A. No. I haven't said the treatment of Frenchmen, but the opinion regarding Frenchmen. I was quite aware that I could be asked whether Frenchmen appeared as defendants, but as much as I know, that was not the case. I believe that only in one case a Frenchman was called as witness; in a case concerning relations with prisoners of war -- it was an unusual and unique case. But as defendants, I have never seen Frenchmen.
Q. As far as the treatment of Poles is concerned, don't you know of cases where Rothaug found a place of work for a Pole even while he was in the courtroom?
A. No.
Q. Now we come to the case Lopata. You mentioned that you for warded the Lopata files to the Special Court without raising charges.
Did you forget at that time to file charges?
A. I don't recall what the reasons were. But at any rate, from the point of view of procedure, it was necessary to file charges, and then when that was pointed out to me by the presiding judge, I did so. Originally, I must have been of the opinion that since an indictment existed already, although before the Local Court, and since the Reich Supreme Court had transferred the case formally before the Special Court, the case could be tried before the Special Court without another indictment. That must have been my original opinion.
Q. Now you mentioned that there was a remark on the indictment, "Penalty intended: six years severe penal camp". I can prove to you that the indictment which was filed with the presiding judge of the Special Court does not have that remark, but it is only on the copy. (Dr. Koessl shows the file to the witness, Dr. Dorfmueller.)
A. Yes. That was the copy which was with the rest of the file for use in the office. The presiding judge got no knowledge about the intended motion concerning the penalty.
Q. Now it says here, "Two copies submitted." Submitted to whom?
A. The General Prosecutor.
Q. Are those the reports which were sent to the Reich Ministry of Justice?
A. I believe one of them went to the Reich Ministry of Justice?
Q. Is that your handwriting?
A. Yes.
Q. There is a remark, "Six years severe penal camp". That remark is crossed out and it is replaced by another, "Death sentence."
A. Yes.
Q. That remark, "Death Sentence", was that a decision by the Ministry of Justice?
A. I consider that quite impossible.
Q. Why?
A. Because in the meantime, the files, that is to say a copy of the indictment could hardly have come to the attention of the Ministry of Justice. There are reasons to believe that I have put down that remark very soon after the indictment had been written; that is to say, probably during the same month. If you compare the files, you will see the indictment was filed on the 18th of August and signed by the Chief Prosecutor. I, personally, did not have the right to sign these things. On the 24th of August, as the stamp shows, it was received by the Special Court. On the 27th of August, Rothaug made a decision and shortly thereafter the file was returned to my office. On the first of September, I made a decision to ask for three photographs. Photographs were only demanded when a death sentence was expected, because the photographs had to be attached to the clemency plea sent to the Reich Ministry of Justice. Therefore, we can see the following: when the indictment was written on the 18th of August, it was my intention and the intention of the Chief Prosecutor Schroeder to ask only for a term of six years. Schroeder signed the indictment. Before, that is to say, between the 24th of August and the first of September, that intention was changed, because on the first of September the photographs were requested. I do not consider it possible that in the meantime a directive had come down from the Ministry of Justice.
Q. But you admitted, yourself, that upon your intervention, photographs were asked for; that you also requested a defense counsel be appointed; and you also admitted that the prosecution, on its part, made all preparations which were to be made if it was intended to ask for a death sentence. Is that correct?
A. Yes, that was done on the part of the prosecution. Since you want to hear more details about that matter, I want to add that it is quite impossible to think that on my own initiative I brought about that change of viewpoint. My intentions, as could be seen, and also that of the Chief Public Prosecutor, were for six years. If, therefore in the meantime, when the presiding judge Rothaug received the files, that was suddenly changed to the death penalty, then there must have been some influence from third parties.
It certainly wasn't my doing.
Q. That third party, however, may very well and very probably have been the superiors of the prosecution, if one starts from the work done on the file.
A. Had that been the case, then probably a notation or a remark or some written directive must have been made by the general Public Prosecutor, which would have to be joined to files of the prosecutor in charge of the case. Then the change made by me from "six years" to "death penalty" would hardly have been necessary because the purpose of that change was only to inform the prosecutor present during the session. If there would have been a directive from the general prosecutor, then that would most probably have been made known in a different manner, in writing, or by notation; and this notation would have been sufficient to inform the prosecutor during the session so that a change made in my handwriting would not have been necessary. We must add to that, counsel, that the sequence of decisions shows that the influence came from Rothaug. He makes his decision on the 27th; the file returns to the Prosecution on the first of September, photographs and the appointment of a counsel are asked for. The presiding judge had knowledge that the prosecution did not intend to ask for a death sentence. You have just pointed out that these words, "Six years penal camp" are not to be found on the copy of the files of the court, but since we had not asked for the appointment of defense counsel the presiding judge could assume that we would not ask for death sentence because that request for a defense counsel was first crossed out by the office in the indictment and then later added by me, after the change of the viewpoint.
He knew, therefore, that we did not intend to ask for the death sentence, and then I assume that on the basis of my knowledge of his mentality he brought about the change of the sentence to be demanded.
Q But I have here before me a decision of the then presiding judge Rothaug of the 27th August.
A Yes.
Q The indictment, of the 18th August, which already contains your request for the appointment of Defense Counsel.
A But I just said that the words "appointment of defense counsel" are crossed out in ink, with a ruler that is by the office and with these lines crossed out and without the request for defense counsel, it was sent to the courts. Later, with the same pencil as you can see, at the same time when I put on the words "death penalty," I also put in a request for defense counsel, that is to say, originally when the indictment was sent to the court the request for the defense counsel was expressly not made.
Q You can see here the letters "DO", are those yours?
A Yes.
Q How can you maintain that you entered the request for defense counsel later than the time you put your initials down?
A Because these indictments were written clear by the office, and then sent to the court. In this clear copy it was crossed out in ink there was no reason, because on our part wanted to ask for six years. Therefore, appointment of defense counsel was not necessary at all. It would have been wrong indeed if at the time of the filing of the indictment I would have asked for appointment of defense counsel.
Q That is also my opinion. But just the same, upon directives from above you finally had to ask for appointment of defense counsel.
A Beyond a doubt I received a directive and instructions to that effect. I said already on my own initiative I did not do it.
Q However, you have nothing to prove that the instruction was caused by Rothaug.
A Counsel, there are several conclusions which make it appear absolutely sure that it came from Rothaug. As I said, in consideration of his entire mentality it is entirely reasonable to assume that in a case of that kind Rothaug was for the death sentence.
Q However, if that request to appoint defense counsel had been made later, after the 18th of August, according to usual office custom, you had to put down the date at least from which it could be seen that this entry on that document was not later that the signature under the indictment; isn't that correct?
A No, that addition of the date was not my personal habit, neither do you see it on the copy with handwritten change. I could not anticipate that the question of the date would be of any importance at this trial; otherwise it is quite unimportant.
Q Now, I want to put to you the decision which Rothaug made as President of the Special Court after he received the indictment. Here it says, first, scheduling of a date for the main trial is postponed because the register containing previous convictions was not in the files; second, the files to the chief prosecutor, I request in the future to file the indictment only after all the evidence necessary to schedule the main trial is available; to schedule trials any sooner is useless, and always leads to unnecessary and excessive work. That was signed on the 27th August. How can you say that Rothaug desired a different sentence motion if it is shown here in writing that he did not touch the legal qualifications of the case, and did not refer with a single word to the intended sentence motion?
MR. WOOLEYHAN: Just a minute. I didn't hear the answer to that question, Your Honor, but even if I didn't, I object to the question on the ground that it calls for a personal opinion of the witness to a matter that he has already testified to the extent of his knowledge beforehand.
THE PRESIDENT: The interrogation refers to the record; we will let him answer that question.
A Counsel asked the following; The presiding judge did not object against the legal qualifications; that was not to be objected to because it was correct. The legal qualification of the indictment was article 4 of the Public Enemy Decree. That was alright. We could, therefore, be confronted only with an objection against the penalty. Nobody forced Rothaug to put his opinion concerning the necessity of death penalty in writing in the files. Similar cases occurred, an I have heard by rumors or as I have gathered from conversations, and in some instances may have been put down in writing, but it certainly was partially more correct and clear on the part of Rothaug if he made such suggestions not in writing but orally, particularly since he had an opportunity to give such suggestions -- his office was only two hundred meters distance from the office of the chief prosecutor, and he had a telephone on his desk, so that a formulation in writing was definitely not a requisite. It would have been wrong, speaking from the tactical point of view, to make such an interference on the part of the presiding judge into matters of the prosecution in writing.
Q Would it be illisit, if he would have made known his opinion about sentences to expected?
A That is hard to say. It would have been illicit if he would put it in writing to the prosecution that he considered the death penalty adcenate. He could have stated that in a different manner, by appointing the defense counsel, on his own, instant being requested, but to suggest a certain penalty motion to the prosecution would have been illicit.
Q According to what regulations?
AAccording to Article 150 51 of the Judicature Act, which says that the Prosecution in its official actions, is independent of the Courts.
Q If this independent position of the prosecution forward the Courts existed you could yourself ask for that penalty which you considered adequate.