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.
Commission 111 Case 111
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.
Commission 111 Case 111
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.
Commission 111 Case 111
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.
Commission 111 Case 111
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?
Commission 111 Case 111
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?
COMMISSION III CASE III
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.
Q You said that was an institution of the Party, an office of the Party. Was the Gaugruppenwalter for judges and prosecutors a function in an affiliated organizations, as to say the Nation Socialist Lawyers League?
A Well, I mean the Party in general including all the affiliated organizations.
Q Is it correct that Rothaug also as presiding judge of the Special Court was to be heard about the evaluation of his assistants in political respect and as far as their services were concerned?
A Well, as presiding judge of the Special Court, at most he was he was supposed to evaluate them as far as their official services were concerned, maybe because the President of the District Court of Appeals who had finally make the final evaluation of judges and prosecutors have asked him about them, as far as political evaluation was concerned -- I do not know what to say about that. The presiding judge of the Special Court had no political functions.
Q Was every suggestion for evaluation contained in a small box where the question could be found, as to the official political reliability?
A That was a question to be put to the immediate superior. The immediate superior as far as I can judge it, on the basis of my many years of experience in general made only a brief statement on that point. For instance, the man is politically reliable. At least in my many years of experience, I have hardly heard of any case where an immediate superior would have said about a man who was his subordinate that he was not politically reliable, even though that man was not a member of the party.
Q Can you confirm that it occurred frequently that in the Reich Ministry of Justice evaluation were received from various party offices COMMISSION:
III CASE III where the case of one person was judged in an opposite manner?
A That is very well possible. I believe that actually happened; that was why a directive came out from the Party Chancellory which was told to us in the Ministry of Justice, in particular, that the Party Office should channel their requests to Reich agencies only through the Party Chancellory. In my opinion that was based on the fact that different definitions between the evaluation of various party institutions existed.
Q On the basis of your general experience in the personnel matter, is it known of you that the Gau administrative office, did get their material not only from the National Socialist Lawyers League, but also perhaps from various other affiliated organizations of the party before they rendered a complete political evaluation of a person?
A I have no positive knowledge of that. After all that was a Party matter, but I believe that was the case, for where should the party get the information from, it had to inquire at various offices.
THE PRESIDENT: I think this will be a suitable time for the usual adjournment until tomorrow morning at the usual time 9:30.
DR. KOESSL: May I put one question to the Commission. I ask to be permitted to cross examine the witness Kassing. The witness Kassing is easily to be taken care of by an affidavit, thus it is not necessary to call him here. Therefore, I ask for permission by the judges of this High Commission to submit an affidavit from the witness Kassing, signed by the witness Kassing in the place of cross examination.
THE PRESIDENT: Has he been brought to Nurnberg already?
DR. KOESSL: He lives in Nurnberg.
THE PRESIDENT: Is there any objection, Mr. Wooleyhan?
MR. WOOLEYHAN: I would like to leave it until tomorrow morning before I say. I may want to be uniform and state. If the witness is not brought and made available, I would or might object to an affidavit.
COMMISSION III CASE III
THE PRESIDENT: He has not been brought here, he lives in Nurnberg.
MR. WOOLEYHAN: Yes, the point being he is available. I may want to object to the affidavit because he was not put on, I do not know yet. I will see in the morning.
THE PRESIDENT: We will postpone the decision until tomorrow morning. We will now again recess until tomorrow morning at 9:30.
(The Court then adjourned until 0930, 4 June 1947.)
Court No. 3 (Commission III) Official transcript of the Commission of American Military Tribunal III, in the Matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 4 June 1947, 0930-1630, The Honorable James T. Brand, presiding
THE MARSHAL: Persons in the courtroom will please find their seats.
The Honorable, tho Commissioners of Military Tribunal III. The Commission is now in session. God save the United States of America and this Honorable Commission. There will be order in the court.
THE PRESIDENT: Mr. Marshal, will you please ascertain if all of the defendants are present.
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of the defendant Engert, who is absent due to illness.
THE PRESIDENT: Proper notation will be made. The defendant Engert has been excused.
You may proceed.
WILHELM MIETHSAM - Resumed CROSS EXAMINATION - Continued BY DR. KOESSL (For the defendant Rothaug):
Q. I ask to be permitted to continue the cross examination of the witness Miethsam.
Do you know, witness, that Rothaug was not aware that he was selected to be vice-president, and that he rejected and refused that immediately when he found out about it?
A. It is not known to me whether Rothaug was aware of the fact that he had been suggested for that position. This is how it happened. The Reich Ministry of Justice received a letter from the Party Chancellery in which it was said that tho Gauleitung of Franconia suggested for the position of vice-president of the Court in Nurnberg the able presiding judge f the Special Court Rethaug. We were supposed to react as to whether that suggestion could be accepted. It is not known to me who initiated that suggestion on the part of the Gauleitung and the Court No. 3, Commission III Party Chancellery -- that is, the suggestion to appoint Rothaug as vicepresident.
In particular, I do not know whether Rothaug initiated it himself.
Q. Do you know, witness, that Rothaug also later always rejected the suggestion made by the Party, that is the suggestion to take over the position of Doebig?
A. That is not known to me. I only know, at least I believe that my recollection is correct, that Gauleiter Holz suggested Rothaug as successor for Doebig, who at that time was President of the District Court of Appeals in Nurnberg.
Q. Did you over find out that the Lawyers' League was requested by the Gauleitung to give an opinion of the person of Doebig because then at that time, 1942 to 1943, all top officials of the various authorities were re-examined by the Party?
A. I don't know whether any such general instructions came from the Party to reexamine the top officials of the authority along political lines. The way I understood it at that time was that the change from Schlegelberger to Thierack was to be utilized to bring about also a change in the person of the President of the District Court of Appeals at Nurnberg; neither do I know whether the National Socialist Lawyers' League at the Gauleitung of Francenia gave an order to reexamine the person and character of Doebig.
Q. Do you know that Rothaug demanded explicitly that such an opinion on the part of the National Socialist Lawyers' League should be brought to the attention of Doebig in order to give him a possibility to justify himself?
A. The President of the District Court of Appeals, Doebig, at the time and still now, assured me that the reproaches made by the Gauleitung, the Gau Executive Office of Franconia against him were made known to him and that he had an opportunity to justify himself toward tho Party. He, himself, called that a Party court procedure. What the former conclusion of that procedure was, I would not know.
Court No. 3, Commission III.
Q. Do you happen to know whether the Party in such cases usually gave an opportunity for people to answer to these reproaches?
A. Usually the Party raised charges or objections against judges and prosecutors to the superior officers of these officials. That is the way it usually happoned. We demanded, that is the Ministry of Justice demanded, that we were to be informed about facts which would show the political unreliability of the official or prove other charges against him. Then we investigated upon these charges, and depending upon the result of the investigation, we gave our opinion or decision. As far as possible, we tried to protect the judge or prosecutor.
Q. Could you still tell us the wording of the letter of the Gauleitung concerning the tapping of telephone conversations?
A. In my affidavit, I have stated that at the time the Gauleiter Holz demanded that the director of the District Court of Appeals, Doebig, be recalled, and that was abut the text of the lot or, because he was the greatest obstacle for the carrying out of National Socialist administration of justice in the Gau Franconia. There was an expose attached to that letter of the Gauleiter.
Q. One moment, witness, I only asked you about the tapping of telephone conversations.
A. Yes. Well, in my opinion I believe I have to give you the facts in the basis of which I came to make that statement, otherwise, it would not be possible to understand what I mean.
Q. All right.
A. There was also an expose attached to that letter. It was signed by Oeschey. And according to his statement -- Oeschey's statement that had been exposed by Rothaug -- that expose listed the individual charges against Doebig. One cf the charges was that the President of the District Court of Appeals, Doebig, had suggested Dr. Grueb, who was politically not reliable for promotion, to be Oberlandesgerichtsrat. Then it went on, if I remember correctly, "in order to achieve the promotion of Herr Grueb, Doebig called his friend at Court No. 3, Commission III.
the Ministry of Justice, Dr. Miethsam" and then it specified the man who also in other cases took care of his matters in the Ministry of Justice." Then it was expressed, I do not remember by what words, that ho also knew of other long distance telephone conversations on the part of Doebig which Doebig had had with me. The conversation which Doebig had had with me concerning Grueb actually took place; also, the contents were correct. Therefore, I had to conclude that Rothaug by some means had found out about this conversation and other conversations, and I also came to the conclusion that there was some plan which made that possible. I don't mean to say that he has found out about these conversations by some sort of survey answer by the Gestapo SD. It is quite possible that he found out about them by having some good friend in the telephone exchange or somebody who was around the District Court of Appeals who directed President Doebig.
Commission 111 Case 111 In vertue of this statements which were known to me, I had used the expression in my affidavit.
Rothaug had had somebody listen in to these telephone conversations.
Q You confirmed, didn't you, that no written complaints were filed against Rothat? Didn't Rothaug have to come to the conclusion, from the entire situation, that there were intrigues brought into play against him by way of personal conversations?
A That is difficult to say. At any rate, on the basis of his rather extraordinary decisions, that is, jurisdiction, he had to expect that charges would be raised against him.
Q Wasn't it possible for Rothaug to come to the conclusion, from the entire situation, that Doebig at least had something to do with the attempt at transferring him to the cast?
A It is possible that Rothaug suspected Doebig to be the instigator of that measure because he did not know the internal connections.
Q Wasn't that attempted transfer of Rothaug, which was based upon reasons cf his activity as a judge, wasn't that a violation of the principle cf the independence of the judge?
A No; for during the war any official, also any judge, with or without his consent, could be transferred. That was no punishment. It was just a different disposition on the basis of an official necessity or emergency.
Q What you have just mentioned -- and I believe you also stated that in your first examination--was that it was definitely his activity as a judge which was given as the reasons to try to have him transferred to the cast?
A The facts were the following: We that is, the people in the personnel office, were instructed that for the occupied eastern territories, per district, we had to find two or three judges or prosecutors which would be likely to be useful there, and at the nominate these. From the District of Nuernberg, I also selected two or three judges or prosecutors. When I ran through the lists I found the name Rothaug and I used Commission 111 Case 111 the opportunity to take care of my duty--to nominate an official as well as to pick out the man whose manner of conducting trials in Nuernberg was so much in the center of public interest and to get him out of there.
That was the connection.
Q Could you confirm that in Nuernberg, a long time before Rothaug appeared the most desagreable personnel conditions existed so that the saying existed to the effect that "The walls of the palace of Justice had cars." "The walls of the Palace of Justice in Nuernberg had cars?"
A Nuernberg, for a long time was hot ground, politically speaking. Also, in the field of the administration of Justice Nuernberg was one of the most difficult districts, politically speaking. It was particularly the manner cf the Gauleiter Streicher and his deputy that contributed to that fact.
The conditions with regard to personnel, also before 1937, before Rethaug came to Nuernberg, offered great difficulties, apart from that, Nuernber was known for the fact that in the Court building there was much gossiping in around. The saying was that "The walls of the Court building had cars."
DR. KOESSL; Thank you. I have no further questions.
CROSS EXAMINATION BY DR. WANDSCHNEIDLR (for the defendant Rothenberger)
Q Witness, you were in apartment 1 of the Reich Ministry of Justice?
A Yes.
Q What did that department deal with?
A Matters of organization, matters of personnel and the general task of the administration.
A The man in charge was changed frequently from the first of March 1935 until 1942. It was Dr. Nadler, Ministerial Director Dr. Nadler. After Thierack's taking office he had to leave. His successor was Ministerial Director Letz and he was in charge until shortly before the collapse.
Commission 111 Case 111
Q Could you tell us what kind cf man Ministerial Director Letz was and where he came from?
A Ministerial Director had been vice-president of the District Court of Appeals at Ramburg. He had very good qualifications for his job. He was an upright man and personnally a very pleasant man.
Q Do you happen to know whether he had worked with Dr. Rothenberger for a long time in Hamburg?
A I don't know how long, Letz worked with Rothenberger but I assume that as vice-president he must have worked as his subordinate for several years, at leats.
Q You mentioned in your affidavit, Dr. Miethsam, the tendency of equalization, Gleichschaltung, which started as Thierack took ever his office. What did that mean to you as far as you were concerned? What did you mean to say? What did you mean by Glichschaltung?
A By the expression of Gleichschaltung I intended to explain that after the many attacks against the administration of justice also, in this sphere a national socialist tendency was introduced. The mission which Thierack had received from Hitler was-- and that nine years after the seizure of power, to establish to built up a national socialist administration of justice.
Q Is it correct to say that the task of Gleichschaltung was to try to come very close to the personal principles cf the party at least?
A These who worked with Letz, who worked in the personnel Department, thought that as far as out field was concerned -
Q Well, I will come to that very soon. I just want to say was the task of Gleichschaltun to have meant that the policy of personnel should be made as similar as possible to those of the national socilaist party?
A Well, at any rate, leading positions should be covered by people, by judges, which were according to the principles of the party. That is how we understood it.