Court 3 Case 3 (COMMISSION III)
Q. Witness, I refer again now to the question of exclusion of the public in certain cases. You admitted before that under certain circumstances on the basis of legal regulations that was possible and admissable.
A. Yes.
Q. Can you confirm that that regulation in the same form existed before 1933?
A. I believe I recall that that possibility of exclusion of the public existed already in the old rules of procedure of 1878.
Q. Now, another question pertaining to the same subject. If the public was excluded on the basis of that regulations, wasn't the public again admitted when the sentence was pronounced?
A. The sentence was pronounced in open session. The opinion was given in secret session again. Only in cases where the participants had to premise secrecy was the sentence, too, pronounced in secret session.
Q. Does that also apply to the sentence itself?
A. Yes.
Q. Can you give me any cases?
A. At any rate, the public was , as far as I know, not admitted again. That secrecy had to be maintained also during the pronouncement of the sentence.
Q. If the public was excluded from the trial then but readmitted when the sentence was pronounced, then there shouldn't have been any reason why the relatives should not have been notified about the result of the trial.
A. Only as far as the exclusion of the public was concerned and there was no demand for secrecy, one could notify the relatives of the gist of the sentence and I also did that in about 95 percent of the cases.
Q. In this connection, another question. Were foreigners in a worse Court 3 Case 3 (COMMISSION III) position before the People's Court than the German defendants?
A. I never had that impression.
Q. Now, to another point. Did you ever meet the defendant Lautz as a representative of the prosecution in the People's Court?
A. As far as I can remember, there were only two cases concerning the 20th of July on which I was working when the Chief Reich Prosecutor Lautz was the representative of the prosecution.
Q. Would you care to describe to the court what his behavior was?
A. I personally had the impression that in an absolutely objective and quiet manner he presented his plea and did not in any way insult the defendants.
Q. He remained quite objective?
A. Yes.
Q. What was Lautz's reputation in general? Was he considered a very severe man?
A. That was never discussed among the colleagues.
Q. Did you ever observe that any other representative of the Reich Prosecution acted in an unfavorable manner toward witnesses of the defendants?
A. I never noticed anything like that in the sessions. I have no criticism to offer as far as that is concerned.
Q. Witness, I should like to put the question to you concerning the undermining of military strength. Cases of undermining of military strength were introduced by the special penal regulation for wartime, were they not?
A. Yes.
Q. Do you know to what year that dates back?
A. That special penal regulation dates back, if I remember correctly, one year before the outbreak of the war; if my recollection is correct, I believe it was 1938.
Q. Is it correct that in such cases first the courts of the Armed Forces, the Wehrmachtsgericht, had exclusive jurisdiction?
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A. The courts of the Armed Forces were not competent for violations-only the civilian courts; and the other cases against civilians for reasons of undermining military strength had been taken away from the authorities who were competent up to then, and transferred to the People's Court.
Q. Wouldn't you remember whether it was a late as 1940 that the many courts became competent?
A. I didn't understand you.
Q. Couldn't you perhaps remember whether it wasn't as late as 1940 that civilian courts became competent for cases undermining military strength which were committed by civilians.
A. No, I cannot remember that.
Q. Can you remember when the People's Court became competent for cases of undermining military strength?
A. I am sorry. I don't have the code of Penal Procedure here which would make it possible to tell you.
THE PRESIDENT: The Court has the record. There is in evidence in the Court already the record of that enactment so it will be unnecessary for you to inquire about the date of it.
Q. Witness, were such cases of undermining of military strength in the People's Court since 1943?
A. Yes, especially during the year of 1944.
Q. And is it correct that since the enactment of the special penal regulation for wartime, until the time when the People's Court became competent a definite jurisdiction had already been developed concerning the question whether a statement had been made in public and, secondly, whether that statement actually tended to weaken or undermine the defensive spirit of the German people?
A. As regards the statements having been made in public, I had quite a clash with Presiding judge Freisler once which I remember quite well. I had to defend a case where it was obvious from the files that the Chief Reich Prosecution had already filed an indictment because it was Court 3 Case 3 (COMMISSION III) assumed that the statements had not been made in public, and I took the liberty to point out in my plea as to the question of whether one could assume the fact these statements were made in public, that it was at least doubtful; taking into consideration that the Chief Reich Prosecution had already stated it's opinion.
On that occasion I had quite a clash with the President who interrupted my plea and pointed out to me I had no right to speak about that. That was one thing.
As to the other question, I know only that undermining of military strength cases during the preceding period were not considered as severely and usually ended with prison terms, whereas afterwards -- that is, since the People's Court dealt with it --- on principle, it resulted in death sentences.
Q. Witness, isn't it known to you that in the official Gazette of the Ministry of Justice, that is in "Deutsche Justiz" -- of 1940, on page 939, three decisions by the Reich Military War Court (Reich Kriegsgericht) were published, where that argument is discussed?
A. I don't remember having read these statements and, if I may be permitted to explain this further, I have pointed out repeatedly that that question as to whether the statement had been made in public was at least doubtful, because the Reich Supreme Court had in earlier times already established the concept of statements weighed in public, President Freisler told us what the Reich Supreme Court said does not concern us here and we are the highest political court and we decide according to our own opinion and our own findings.
Q. Witness, wasn't it known to you that in the year 1942 in particular, that is, before the People's Court became competent for cases of undermining of military strength -- that the Reich Supreme Court pronounced a decision concerning the question of statements having been made in public which was different from its own previous decisions and identical with the the decision of the Reich Military Court and where the Reich Supreme Court explicitly pointed out that the Ministry of Justice, in its official explanation of 1940, ii which the civilian Court 3 Case 3 (COMMISSION III) courts were made competent, stated the jurisdiction of the Reich Military Court was the guiding bases for civilian courts.
A. I do not know of that pronouncement, that statement. At any rate, this is the way it worked out.
Q. Witness, is it correct that German prosecution end the Chief Reich Prosecution had to abide by the directives of the Reich Ministry of Justice?
A. Yes, that is known to me.
Q. Then they would have had to abide also by the Reich's directives of Justice concerning undermining of military strength.
A. I should assume so.
Q. One last point, then. On page 11 of your affidavit you set forth, and I quote: "Particularly increase in severity of justice and the administration of justice resulted after the decree against Jews and Poles was issued, according to which Jews and Poles were not to be tried before the regular courts but in administrative procedure." The preamble to that quotation is not quite correct, you say that the administration of justice had become more severe. Were there any German Justice authorities who after this decree had to deal with cases concerning Jews?
A. I only know that individual indictments which were filed during that critical period and some of whom were directed against Jews and Poles, when it came to the trial, were only concerned with the other defendants, no more with the Poles and Jews, that the Poles and Jews had been separated; and, as we assumed, were dealt with by administrative procedure.
Q. Were these cases before the People's Courts?
A. Yes, these cases were before the People's Court.
Court No. 3, Commission 3 Q.- And what was the case, if a case was pending before the police, was that case still transferred to the prosecution, that is to say, the Chief Reich Prosecution, after the decree against the Jews and Poles?
A.- No, they didn't get there any more. They were simply dealt with by the Gestapo administratively.
Q.- So it wasn't so that the prosecution filed an indictment with the Gestapo?
A.- No, that wasn't the case.
Q. - Thank you. I have no further questions.
EXAMINATION BY DR. KUBOSCHOK.Q.- Two short questions, witness.
At the end of your affidavit, you mention the proceedings against the former Check Prime Minister Eliaze. Did you obtain knowledge about that trial from your own observation?
A.- No, the information which I have given in my affidavit results merely from informations received by way of conversation from Justizrat Hercher, who at the time happened to be defense counsel for that defendant.
Q.- You mentioned in that affidavit that you had been informed by hearsay that the indictment against Eliaze was filed upon the initiative of the Reich Ministry of Justice by the Gestapo, that the charges were raised by the Gestapo. Can you chock the accuracy of this statement?
A.- No, that is not the case, because as I have said already, that was based only on informations which I have received from Justizrat Hercher and passed on. I consider it at least improper that the case was transferred from the Ministry of Justice to the Gestapo in order to raise charges, because as far as I can remember, Justizrat Hercher at the Court No. 3, Commission 3 time told me that the First Senate was to be in session in Prague and that he had been brought to that First Senate in Prague by airplane, so that it could be seen from there that a regular proceeding took place before the Senate.
Q.- Thank you.
EXAMINATION BY DR. SCHILF : (For the defendants Klemm and for Mettgenberg) Q.- I have only a few brief supplementary questions.
Dr. Gruenwald, you mentioned the so-called lawyers' letter.
A.- Yes.
Q.- And one of my colleagues put a passage to you which you have read. I don't know whether you remember that Lawyers' letter with reference to other points concerned, particularly the one that the Reich Ministry of Justice in that letter expresses severe criticism to those lawyers who did not handle their pleas seriously enough and pleaded very briefly. Do you still remember that ?
A.- In detail, I could not remember these points any more.
Q.- Then I may show you that Lawyers' letter, and may I use the same procedure which was used before ?
A.- Yes.
(Witness is given the letter)
Q.- First, the Figure 14, that is this part?
A.- Do you want me to read this ?
Q.- Yes.
A.- Figure 14. "Before a Special Court, several defendants were charged with tobacco robberies in tobacco shops and cellars of houses. Most of them were young French laborers at the age of about 20. Five of the defendants had an appointed counsel. Although the facts were not quite simple, Court No. 3, Commission 3 three of the appointed counsel read their final pleas in about ten minutes.
The other appointed counsel, who among other points had to examine the question as to whether one of the defendants should be considered a juvenile serious criminal, made more extended statements and more appropriate statements which gave the impression of a serious attempt.
Q. May I explain this as a description of the facts, and what the witness is going to read now is the criticism voiced by the Ministry of Justice.
A.- "Opinion of the Reich Minister of Justice. The problem contained in the attitude of the counsel which is based upon the fact that the counsel appears on the one hand as a representative of his client by whom he is chosen and paid on the other hand, as a man to whom the task of guarding the law is entrusted by the community which has appointed him for this job, has always at all times become apparent in the administration of justice. The change which occurred in civil law from a time when the individual was"-
Q.- Doctor, I think you better interrupt because that was the wrong passage. I wanted to ask you to read point 14 the opinion of the Reich Minister of Justice?
A.- Yes, I see. "The task -
JUDGE BRAND : One moment, please, Mr. Witness may I inquire, isn't that an exhibit which has already been introduced in evidence ?
DR. SCHILF : Yes.
JUDGE BRAND : I think we recollect that. It should be unnecessary to read it again. We have already read it.
BY DR. SCHILF :
Q.- Witness, may I ask you just to glance through it because I should like to have your point of view concerning Court No. 3, Commission 3 this document.
A.- I definitely confirm the accuracy of this point of view, but I should like to say that in my experience such a neglect of the duties of a defense counsel has never occurred. I, personally, at least never witnessed such an undignified manner of conducting a defense. It may have occurred in other cases, but as far as I am concerned I have never observed it.
Q.- In conclusion, may I say then, what the Reich Minister of Justice wrote here is according to your opinion also?
A.- Correct.
Q.- That it should be criticized rather severely if a defense counsel submitted an inefficient plea for his client?
A.- Yes.
Q.- In your affidavit, on Page 4, there is a sentence concerning the question of clemency pleas ; that in a case of a death sentence, it was not the duty of counsel to submit a clemency plea. Literally, you have stated in answer to the question and I quote "No, a duty of that kind did not exist. Just the same I submitted clemency pleas, but was not successful." Dr. Gruenwald, I should like to ask you whether in cases of death sentences, according to legal regulations, the question of clemency pleas did not have to be examined officially ?
A.- It is known to me that to each death sentence, an opinion of the Senate to the clemency question was attached and that a special report went to the Reich Ministry of Justice with the inquiry as to whether the competent authority wanted to avail itself of the right to clemency, quite apart from any activity on the part of defense counsel.
Q.- Therefore, a death sentence could only be executed Court No. 3, Commission 3 and the execution was only ordered after the appropriate highest office of the administration of justice had examined the sentence and decided the clemency question.
A.- Yes, in principal, that was the case.
Q.- May I ask you what do you mean "in principal" ?
A.- Whether or not there were any exceptions, I could not tell.
Q.- Are you familiar with Paragraph 459 of the Code of Legal Procedure ? Would you kindly mention it. I don't want to examine you here on that, but it says there literally that execution of a death sentence is only possible after the clemency question has been decided.
MR. WOOLEYHAN : I object to the question just asked on the ground that if he doesn't want to examine the witness on it, why does counsel ask it ?
BY DR. SCHILF :
Q.- I only wanted to aid your memory. That is why I asked you whether you read that.
A.- Well, I didn't remember it at the moment, but at any rate that was the way it was handled.
Q.- The last question, purely for clarification. On the bottom of Page 10, with reference to the question whether in all cases the death sentence was pronounced by the People's Court if there were serious cases of undermining of military strength, you answered, "Yes, in cases on the undermining of military strength, in principal the sentence was death." And the lawyer asked you, "Do you mean all cases of undermining of military strength or only such cases which were not considered less serious cases by the People's Court and had not been transferred to another court ?"
A.- During the critical period of 1944, all cases of Court No. 3, Commission 3 undermining of military strength were considered extremely serious and were tried before the Senate of the People's Court.
Only gradually, it cane to it that cases of less importance were again transferred to the Penal Senates of the District Courts of Appeal.
Q.- Upon what do you base this conclusion, upon what experiences ?
A.- Upon the experiences of my own practice.
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Q Did you also defend before Penal Senate of the Kammergericht?
A In one case against a dentist by the name of Beettler at Evelingen, I defended before the penal senate of the Kammergericht.
Q Was that a case involving undermine of military strenght?
A Yes.
Q And there was not a death sentence?
A No, three years' prison pending trial pending trial was taken into recount.
Q And at the very end, I would like to say stilistic question which was already touched by my colleague, Dr. Grube, that is on page 11 of the affidavit concerning the so-called Decree Against Poles and Jews. I think I did not hear your answer very clearly; I should like to put that to you , you begin with the words that the Administration of Justice became more severe; that is not quite clearly expressed, and we would like to, give you an opportunity to correct this.
A It may be that I gave you cause for a misunderstanding by the Administration of Justice becoming more and more severe; I meant that this applied, at any rate, to these groups of cases which on the basis of that decree, had been taken out of the regular administration of Justice and transferred to a purely administrative procedure. I didn't mean to say that those cases which remained at the People's Court became more and more severe, but that the cases of Poles and Jews were separated from these regular proceedings, that I considered an increased severity.
Q That is to say they were treated outside outside of the normal administration of justice.
A Yes.
DR. SCHILF: I have no further questions.
THE PRESIDENT: I trust Defense Counsel will avoid repetition we have had quite a little repetition this afternoon from the different counsel.
Commission 111 Case 111 EXAMINATION BY DR. DOETZER: (Attorney for Defendant Nebelung)
Q Witness, in your affidavit you also mentioned in one passage that you defended in a case where the defendant Nebelung was the presiding judge. Do you recall whether you were defense counsel in any other trials where Nebelung was presiding judge, or do you only remember this one trial?
A I can remember that one trial more precisely. I may well be that I defended in two or three other cases where the defendant Nebelung was presiding judge, just in minor cases, but this case I remember quite clearly for I have my files here, and the case concerned the 10th July, 1944.
Q Where did that trial take place?
AAt the Kammergericht, that is at Berlin.
Q Aren't you mistaken, witness; are you sure?
A Well, it may be that I am confusing it with something else. The trial took several days.
Q Wasn't it-
A It was before the People's Court, and, if I am not mistaken in the large courtroom; the large courtroom -- now I remember; that was on the 19th and 20th September, 1944. Senate President Nebelung was presiding judge; then the case was postponed and two weeks later on the 5th October, Freisler was presiding judge.
Q What was the case?
A It was the case Engelhorn and six others. I defended in particular Freiherr von Roenne, Colonel of the General Staff.
Q I see. And how did Nebelung conduct that trial?
A I only have the best recollection of President of the Senate Nebelung; I know that with great meticulousness, calmness and modesty he examined the defendants, gave them every opportunity to speak, and above all, desisted from any insulting treatment and objected to it.
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Q Were you limited in your defense in any way?
A In no way or manner; no.
Q Did President Nebelung grant all the defendants and the witnesses complete freedom to speak before the Court?
A That was vertainly my impression, that he gave everybody the possibility to speak until, in the opinion of the persons concerned everything was clarified.
Q Was this manner of conducting a trial a gross contract to the manner in which other cases on the 9th of October were conducted?
A I defended in several other cases Freisler was presiding judge, and I observed and felt a sharp contrast existed in the manner of conducting these trials.
Q Then, furthermore you stated in your affidavit that President Freisler during the trial conducted by Nebelung appeared not the visitors Galberg as a listener.
A I can remember that quite clearly; it was the first or the second day of the trial, the 19 or 20th of June when in the spectator's section the President Freisler appeared together with the chief Reich Prosecutor Lautz. We had the impression that they wanted to check on President Nebelung; and it is a fact that then at the trial, at the session of the 9th of October it was not President Nebelung who conducted the trial, but Freisler.
Q Do you happen to know any particulars as to why Nebelung was no longer presiding judge in October?
A That I couldn't tell, I don't know.
Q What caused the adjournment of the trial by the senate of the People's Court?
A Since several acquittals were to be expected, the Chief Reich Prosecution filed the motion that the files, in order to examine certain questions which I do no longer remember, should be returned to the Chief Reich Prosecution, and that motion was sustained by the senate.
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Q Witness, you mentioned that acquittals, in your opinion, were to be expected.
A Yes,
Q Wasn't it a fact that one or more of the defendants were acquitted, and that the trial was postponed for the rest cf the defendants only!
A Well, it happened -- this is the way it happened. There were seven defendants altogether, and according to my notes, the Chief Reich Prosecutor himself in the case of three defendants demanded acquittal. They were Oberleutnant Schcene, Major Adolf Friedrich Graf von Schack, and Rittmeister von Ramin. As far as Ramin was concerned the acquittal was pronounced, on the 20th of September.
Q One moment, witness, the acquittal was pronounced by Nebelung?
A Yes, and as far as Schack and Schoene were concerned, the Reich Prosecution itself might have been some misgivings also, althought they demanded the acquittal and requested return of the files for the purpose, of further investigation, and , as far as I can remember, but I could not tell that positively, Freisler sentenced Schack and Schoene later on to death.
Q Witness, since you are familiar with the complex of the questions concerning 20 July, I should like to ask you whether that acquittal of Herr von Ramin was the first acquittal.
A I could not say that with certainty because the first case, was tried before the People's Court, I was not present; that was the first case concerning the 20th cf July which was pending after I had returned from my vacation, and where I was appointed defense counsel.
Q Witness, did any of your colleagues ever criticize the manner in which Nebelung conducted trials?
A Never. On the contrary, we were happy when we knew that Nebelung was going to be our Presiding judge.
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DR. DOETZER: Thank you. I have no further questions.
THE PRESIDENT: There are often remaining defense counsel who have not cross examined. Do they desire to do so? Apparently not; I take it the cross examination is ended. May I ask you a few questions Mr. fitness ?
BY THE PRESIDENT:
Q In the case to which you referred, in which the trial was commenced before the defendant Nebelung, and was continued by Freisler, did the defendant Nebelung sit as an associate judge after Freisler took the presiding position?
A No, he did not appear in the senate any more, at that time.
Q You were asked concerning the number of cases in which you had participated, in which the defendant Nebelung was presiding judge.
A I say I can remember precisely only this one case.
Q Were there other cases?
A It may be that I was in two or three other cases, but cases of less importance which were tried before him.
Q My only question was, did you also try cases in which he was sitting as an associate judge on the people's Court?
A No.
Q You referred to one case in which a propestive defendant was transferred to the Kammergericht; do you recall?
A Yes.
Q Was that done by or under the authority of the defendant Lautz so far as I know -- the transfer?
A Well, as far as I know the official dealing with the case investigated the facts and reported to the Chief Reich Prosecutor, and then upon the suggestion of this official it was brought either before the People's Court or sent to the penal Senate at the district court of appeals, so that this decision was actually in the hands of the Chief Reich Prosecutor.
THE PRESIDENT: That is all, thank you. Any re-direct?
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MR. WOOLEYHAN: No, Your Honor.
THE PRESIDENT: The witness is excused. Call the next witness COMMISSION III CASE III Wilhelm Miethsam, a witness, took the stand and testified as follows:
BY JUDGE BLAIR: Will you hold up your right hand and repeat this oath after me:
I swear by God, the Almight and Omiscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE BLAIR: You may be seated.
EXAMINATION BY DR. KOESSL: (Attorney for the defendant Rothaug.) Gentlemen of the Commission, the witness, Miethsam is to be examined concerning the affidavit, document No. NG 721, which is exhibit 483, to be found in document book 3 A, supplement.
It is page 123 of the German document book.
May I begin.
Q Witness, will you please tell your full name and your occupation?
A Dr. Wilehlm Miethsam, formerally Ministerialrat. Ministerial Councilor.
Q According to your affidavit, you were from 1933 until 1935 in the Personnel Office of the Bavarian Ministry of Justice at Berlin; is that correct?
A Yes.
Q The transfer of Rothaug to Nurnberg in the year 1937, did that occur on the initiative of the Party office or was that transfer due to his career, did it come out of his previous career?
AAn influence of the Party, I can not longer remember as far as the transfer of Rothaug was concerned. It is possible, however, that the Chief of the Gau Legal Office, Denzler, said to me is it possible to have that gentleman transferred to Nurnberg, he may have said what COMMISSION III CASE III are his chances.
It is even possible that the Chief of the Gau Legal Office Denzler intervened with the President of the District Court of Appeals, Bertram, and ask that he might suggest Rothaug for the position. At any rate any influence of the time that the Party would have written to the Ministry of Justice, that they desired or that the Gauleitung desired that this gentleman be transferred; that I cannot remember.
Q The fact that Rothaug was an adherent of Ludendorff, did that give him any advantages?
A No, I certainly have to deny this. It was even so that until a certain time the adherent of Ludendorff were treated as Free Masons by the Party in that restriction was lifted. I know that quite well, because there was a man whom we had submitted for promotion, who was a a member of the Tannenberg Bund, and adherent of Ludendorff, and he was rejected by the Party because he had been an adherent of Ludendorff.
Q What was the qualification of Rothaug in the personnel files, according to your recollection particularly as far as his ability was concerned, and his character?
A I remember the following: together with the application of Rothaug for the position in Nurnberg, there came a testimonial by his superiors from Bamberg, and if I remember correctly it said that he had passed the State examination with the best results, and that he was or had been very capable in his office, but it also said as far as his character was concerned, there was reason for criticism, he had a very brisk manner, At that time, in order to be quite sure, I requested information from his superior, the President of the District Court of Appeals at Bamberg, as to whether he considered Rothaug the right man for the position of a Lauageriltsdirector in Nurnberg, and he said that he considered him quite capable for that position, but not for the position of Chief of an office because of his brisk manner.
Q Was anything mentioned about his manner of conducting trials in the personnel files?
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A That, I can no longer remember; it is too long ago, about ten years.
Q Was his manner of conducting trials later on criticized in his official classification?
A I cannot remember that about his manner of conducting trials anything was said in the official classifications that was more expressed in the discussions that the President of the District Court of Appeals and the various gentlemen of the Reich Ministry of Justice had with me.
Q Did you personally attend a session of the Special Court in Nurnberg --
A No.
Q Wait a moment --- where Rothaug was presiding judge?
A No.
Q Did you take the opportunity to read the sentences of the Special Court of Nurnberg and examine them?
A No.
Q That is to say as far as Rothaug was the presiding judge?
A No, I was not competent to do that; that was a matter for the Department of Criminal Jurisdiction.
Q Would it be correct, therefore, for me to assume that there was never any disciplinary proceedings against Rothaug?
A No disciplinary proceedings were ever started against him.
Q Were you aware of the fact that Rothaug was Gaugruppenwalter for judges and prosecutors of the Party in Nurnberg?
A Yes, I believe that was mentioned in his personnel file.
Q Is it correct, witness, that it was part of the task of the Gaugruppenwalter to state his opinion concerning suggestions for the promotions and changes of judges and prosecutors?
A That is not known to me; that was a matter of the Party. After all, it was only known to me that Rothaug was the man who gave his opinion about that in Numberg, and that I was told by the President COMMISSION III CASE III Of the District Court of Appeals and colleagues whom I happened to know in Nurnberg, but what was the case in other Gaus I would not know.