HR. KING: I doh't want to usurp Dr. Wandschneider's prerogative here, but it does seem that his next witness is not immediately available. On the other hand, Dr. Franke and the witnesses requested by Dr. Schilf are here, and it might be expedient to proceed with the examination of Dr. Franke, and to that the prosecution is willing to agree.
THE PRESIDENT: We will proceed with whatever witnesses are here if they are witnesses for the defense.
We are once more admonishing counsel that in the last days of the trial it is important that great efficiency be shown in having the witnesses ready and in cleaning up these last bits of testimony without delay.
Is Dr. Schilf available? Let him be called. Let the witness be produced,
DR. DOETZER: Your Honor, I will go immediately and get him.
THE PRESIDENT: Thank you.
HORST-GUENTHER FRANKE, a witness, took the stand.
JUDGE BLAIR: Hold up your right hand and repeat after me the following oath:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath)
You may be seated.
MR. LA FOLLETTE: If Your Honor please, may I ask, is Weiss outside?
THE MARSHAL: Yes.
MR. LA FOLLETTE: May I have Weiss now, and may Franke stand aside, Your Honor?
THE PRESIDENT: Is Weiss a prosecution witness?
MR. LA FOLLETTE: Yes, Weiss is a prosecution witness.
THE PRESIDENT: No. I think we will proceed as we have indicated two or three times this afternoon, with defense witnesses, and defense counsel are expected to be in this Tribunal; we are not to have delays.
MR. LA FOLLETTE: If Your Honor please, I think the prosecution may be partly responsible for this.
THE PRESIDENT. I am not concerned with the past, but I am very much concerned with the future.
MR. LA FOLLETTE: May I explain to the Court what has happened, if you please? I mean, I must state what statements I had made to Dr. Schilf. I am sorry.
THE PRESIDENT: Well, you may state them.
MR. LA FOLLETTE: Dr. Schilf and Frau Lehmann came to see me this afternoon at 1 o'clock and stated that Dr. Schilf had to go somewhere and would come back to examine Franke. I investigated and learned that there were to be Wandschneider witnesses, and I said to him that I must have Franke on the stand today and that I would put Weiss on. He had understood that he would be in here by 2:30 or 3 o'clock, assuming that there would be two Wandschneider witnesses.
To that extent -
THE PRESIDENT: There have been two witnesses, as I recollect and the Tribunal expects counsel for both sides to be available and not to cause these delays. We have been waiting about ten minutes for something to do.
Is your witness outside now?
MR. LA FOLLETTE: My witness is outside now.
THE PRESIDENT: Do the defense object? Is the defense willing that the prosecution witness be called out of order?
MR. LA FOLLETTE: I understand Dr. Schilf will be here in a few minutes, but I can dispose of Weiss, who is a witness against all defendants, and certainly all defendants cannot be hart if Weiss is called.
THE PRESIDENT: The witness will stand aside. Call Weiss, and let's get busy.
MR. LA FOLLETTE: I would like to hold this witness.
THE PRESIDENT: Keep this witness available, Mr. Marshal.
(Witness Franke excused)
WILHELM WEISS, a witness, took the stand and testified as follows:
MR. LA FOLLETTE: This witness is to be examined on rebuttal for the prosecution.
JUDGE HARDING: Hold up your right hand and repeat after mo the following oath:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
DIRECT EXAMINATION BY MR. LA FOLLETTE:
Q Will you state your name for the Tribunal, please?
A Weiss, Wilhelm.
Q Were you formerly the editor of the Voelkischer Beobachter?
A I was the Chief Editor of the Voelkischer Beobachter.
Q What was that? I did n't hear the last.
A I was not the publisher, I was the editor. I was the Chief Editor of the Voelkischer Beobachter; I was not the publisher.
Q Yes, you were the Chief Editor.
When did you go with the Voelkischer Beobachter?
A I joined the Voelkischer Beobachter in 1927.
Q What was the circulation of the paper at that time?
A In 1927 the circulation of the Voelkischer Beobachter, as far as I remember, was approximately thirty to forty thousand copies. That is just a guess on my part.
Q Yes, to the best of your ability. And, that same year, did you join the National Socialist German Workers Party?
A I joined the Nazi Party in the course of 1927.
Q What was the circulation of the paper in 1933, just before Hitler's rise to power?
A In 1933, before the seizure of power, as far as I remember, the circulation of the paper was oscillating between fifty thousand and eighty thousand. I cannot give you any accurate figures; I am speaking from my memory, and I cannot reconstruct these figures exactly from memory.
Q In 1935 do you recall to what circulation the paper had then risen?
AAfter 1933 the circulation wont up and up, particularly because, until 1933, there was only the Munich edition and then at that time we also had the Berlin edition, or rather the Berlin editions, and by 1935 I think the total circulation must have been something like throe hundred thousand copies.
Q Now, up to the time of the outbreak of the war, in 1938 or 1939, do you recall what the circulation of the Berlin North German edition was during those years, to the best of your knowledge?
AAs far as I can remember, the Berlin editions, including the North German edition, together with the provincial editions, amounted to about seven to eight hundred thousand copies by 1938, as a total, as far as I remember.
Q Yes. Now then, daring the war, to the best of your knowledge, did the circulation of the North German Berlin edition rise to approximately eight hundred thousand?
A May I ask you to restate your question? I didn't quite get it.
Q Between the years if 1941 and 1945, is it approximately correct to say that the circulation of the North German Berlin edition alone was approximately eight hundred thousand?
A You have to keep two things apart here. There was the Berlin edition and, distinct, from that, there was the North German editions Those two editions were both published in Berlin, The Berlin edition was limited to the City of Berlin and at that time, before the outbreak of war, I think its circulation must have been roughly three hundred thousand to four hundred thousand copies, Then, in addition, there was the North German edition, that is to say, the provincial edition, and that circulation, as far as I can remember, amounted to the same circulation, which means that the total circulation of all editions during the first few years of the war rose to something like eight hundred thousand copies and up to ore million copies.
Q. And in addition at that time were you publishing, during the war, '41 to '45, the Munich and South German editions, and what was their combined circulation?
A. Yes, in addition there was the Munich edition and there were the South German editions. Their total circulation amounted to approximately two hundred thousand, or a maximum of three hundred thousand copies.
Q. And during the war was there a Vienna edition, and what was its circulation?
A. The Vienna edition was first published in 11938. During the war years the average circulation, as far as I remember, was fifty thousand copies.
Q. Now during the war, having regard to the Berlin city edition alone, can you tell the Tribunal what the circulation was in Berlin to the number of inhabitants in Berlin? Was it one to two, one to five, one to ten? What is your recollection?
THE PRESIDENT: Just let him tell, if he remembers, about what the population of Berlin was, and we can save a little time.
BY MR. LAFOLLETTE:
Q. About what was the population?
A. As far as I remember, the population of Berlin numbered approximately four million.
Q. And what was the population of Munich during the war years?
A. As far as I know, Munich had a population of seven hundred thousand.
Q. Now, was the Voelkischer Beobachter the official Party newspaper of the Nazi Party?
A. The Voelkischer Beobachter was considered the Party organ of the National Socialist Party.
Q. And whether or not it was subscribed to, to your knowledge, by all government and Party offices?
A. As far as I know, and as far as I recollect, it was considered desirable and necessary for all official agencies of the Party and the State to subscribe to the Voelkischer Beobachter.
Q. From your knowledge of Party membership and the circulation of the paper, which you have described, will you give the Court your estimate of the number of Party members who were covered by the paper, the percentage of Party members who were covered by the paper?
A. May I re-state your question? What percentage of the Party members subscribed to the Beobachter? If I understand you correctly, that is the question you put to me.
Q. Yes, it is.
A. Well, my estimate is that, expressed in percentages, the maximum number of Party members that subscribed to it may have been 20 percent. Of course, it depends upon what membership figures for the Party one bases one's estimate.
Q. The best that you can. Now, have you any idea as to the percentage of Party families who received the paper?
THE PRESIDENT: I think you have established that it was a paper of general circulation, particularly among officials of the Party. I doubt if you can go much further with that.
MR. LAFOLLETTE: Yes, Your Honor. May I ask about one or two further questions?
BY MR. LAFOLLETTE:
Q. I ask you whether or not, in your opinion, all government and Party officials at least took a scanning look at the Voelkischer Beobachter daily.
THE PRESIDENT: You need not answer that question.
This witness was the editor; he wasn't in charge of the whole community. We will draw an inference from the testimony as to the generality with which it was received and read.
THE WITNESS: I did not understand.
MR. LAFOLLETTE: The Tribunal directed that you need not answer the question.
THE WITNESS: All right, I am not supposed to answer, am I?
BY MR. LAFOLLETTE:
Q. Do you know what was the practice or the custom of the Party officials with reference to any requirement that Party and government officials subscribe regularly to the Voelkischer Beobachter?
A. Canvassing among civil servants was carried out in the regular way, by the same methods that were adopted among the Party as such. Naturally, it is possible that the civil service organizations themselves pointed out to the civil servants at the time that it was desirable for them to subscribe to the Voelkischer Beobachter.
MR. LAFOLLETTE: That is all, thank you. I have no further questions.
THE PRESIDENT: Is there any cross examination?
(No response)
It appears that there is none, The witness is excused.
(Witness excused)
MR. LAFOLLETTE: Do you have a witness, Dr. Wandschneider?
DR. WANDSCHNEIDER: Yes. I would now like to call my witness Willers. May I examine the witness Willers, please?
THE PRESIDENT: Yes.
(HANS WILLERS, a witness, took the stand and testified as follows:)
THE PRESIDENT: Has this witness testified before?
DR. WANDSCHNEIDER: No, Your Honor, he has not testified here before. I merely have an affidavit from him.
JUDGE BLAIR: Raise your right hand and repeat after me the following oath:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
You may be seated.
DIRECT EXAMINATION BY DR. WANDSCHNEIDER:
Q. Witness, please tell the Tribunal your full name, the date of your birth, and your personal data.
A. My name is Hans Willers. I was born on the 14th of May 1886 at Oldenburg.
Q. What was the last position you held?
A. My last position was that of Ministerialdirigent at the Personnel Department of the Reich Ministry of Justice.
Q. Was that Department I?
A. Yes, that was Department I.
Q. How long have you known Dr. Rothenberger?
A. I have known Dr. Rothenberger since the year 1935 when the Administration of Justice of the provinces was united with the Reich Ministry of Justice and incorporated. Since I was in charge of the Hamburg District as Personnel Referent, during the subsequent years I had a great many official contacts with Dr. Rothenberger.
Q. Can you tell us what experience you had in your contacts with Dr. Rothenberger?
A. It was my impression that Dr. Rothenberger held the direction of his district in firm hands, that his character was very energetic and very firm, and that his judges and his other subordinates had a very high opinion of him.
Court No. III, Case No. 3.
On the other hand, on account of his frank attitude, he was very popular.
Q Witness, did you know at that time that Dr. Rothenberger became also the Gaufuehrer of the N.S. Lawyers' League the year after the seizure of power and was the chief of Gau Legal Office?
A Yes, I knew that, and that combination of the highest Party offices of the Gau in his hands made it a great deal easier for him to be in charge of the administration of justice.
Q In your practice, did you at any time notice that that made things easier?
A Yes, I did.
Q And how could one tell that that was so?
A One saw it because in many other districts there were differences of opinion and there were arguments with the Party agencies, but in this district such differences were entirely unknown. That was because the highest Party offices were combined in the person of the highest man of the administration of justice. Those advantages made themselves felt above all in conflicts with the Party Chancellory.
Q May I interrupt you? You say that in your mind the advantage was that there were no differences of opinion between the Party and the administration of justice?
A Yes.
Q. That may be a very doubtful advantage if such an agreement has been brought about at the expense of the administration of justice -- if there are no other differences if one person has to give in all the time. Therefore, I am interested in another question. The question is this: did Dr. Rothenberger, for example, in his personal policy when it came to suggest persons for promotion, did he give in to the attitude of the Party offices?
A In no way. We did not have the impression that he yielded to the Party offices and the Gauleiters. On the contrary since he was in the confidence of the Gauleiter, he had a certain influence--in fact, Court No. III, Case No. 3.ha exercised strong influence on the Gaulaiter--and because of that, he was able to assert the interest of the administration of justice.
Ha could state who was the most suitable man for promotion and ha was able to prevail with his opinion better than that which was the case in other districts.
Q Can you remember any concrete examples and can you cite them for us?
A I can remember two examples. I am thinking of a suggestion by Dr. Rothenberger to promote a court assessor whose name was Stichert and who was partly of Jewish origin. The suggestion was to promote him to the position of Amtsgerichtsrat--local court judge. That suggestion, the Party Chancellory did not agree to. Dr. Rothenberger, however, stuck to his gun? and finally ha succeeded while emphasizing the fact that the loss of such an efficient young judge would mean an indispensable loss to the administration of justice; by stressing that, ha got the Party Chancellory to agree.
Q Well, continue.
A The other example was that of a justice official, Justizamtmann, who was to be promoted to the highest position which ha could have reached. He was going to be placed in charge of a finance section, The Party Chancellory objected to that promotion because they said that his attitude to the social problems was not sound.
Q And did Dr. Rothenberger prevail with his opinion?
A In this case too, after some arguments ha did prevail with his opinion, and finally the Party Chancellory, on the condition that the official would not have to deal with personnel matters, agreed to the appointment.
Q Is it right that Dr. Rothenberger, once ha appointed people-whether they ware Party members or not--that afterwards ha was interest ad in getting them to join the Party?
A Yes, in my view that is correct.
Q Is it also correct that when it came to such appointments he Court No. III, Case No. 3.placed his main importance on professional qualifications and that political incriminations didn't stop him from appointing people?
A That is correct too. I know that among his young judges, there was a court assessor who formerly had belonged to the Social Democratic Party and he appointed that man later.
Q Witness, what sort of reputation did Dr. Rothenberger have with his staff? What was his human social view?
AAs I have told you before, he was very popular with his staff. I think that was due to the fact that he was kind and that he worked for the interest of his staff with great determination and that he paid a great deal of attention to their welfare; for example, he saw to it that welfare installations were set up. He saw to it that there were communal rooms and that meetings and entertainments were held, and other benefits were made available for the whole staff.
Q You mentioned that Dr. Rothenberger--or rather you haven't mentioned it yet--took a number of assistants away from Hamburg to Berlin with him. Who were his eminent assistants?
A Dr. Rothenberger took a number of his closest assistants with him to Berlin; above all, the ministerial director and head of the Personnel Department, Dr. Letz. He also took Segelken, the Director of the District Court, who became the head of the training department and later on the head of Department VII for public law and commercial law.
Q Were there, as one may put it, Party types?
A No, by no means. Though they did belong to the Party as most judges in Hamburg did, they were entirely independent, as concerns their political views, and Ministerial Director Letz, with whom I worked every day and whom afterwards when we were evacuated I met outside of office duty, of him I certainly did not have the impression that he was the sort of person who was servile to the Party--who had sold himself to the Party. He was an extremely conscientious, hardworking, untiring worker who was frank even in his attitude toward the Court No. III, Case No. 3.minister; and in his dealings with the Party Chancellory and other official agencies, he was always stating his own opinion but quite boldly.
Q Witness, I have told you about certain events which the court here knows: NG-199. I am very sorry I cannot state the exhibit number. These documents, which have been introduced here, show that Dr, Thierack had planned, on the basis of the authority which he had been granted, to issue a decree under which judges and civil servants, after a certain transitional period, could be transferred to another office and could be retired without it having been proved that they were inefficient, and so-called axing lists have been attached to these documents which show what judges were to be dismissed. Do you remember this document?
AAt that time you placed that document at my disposal. I read through it and I knew of those happenings. Shortly before Thierack assumed office in 1942 at the ministry, a draft was worked out for a decree, according to which judges and other civil servants of the administration of justice, during a short transitional period, could be transferred to another office and even against their own will. They could even be retired even if they had not become incapable of doing their duty. According to the Fuehrer Decree of 20 August 1942, this new decree required the consent of the head of the Party Chancellory and also the head of the Reich Chancellory. In a latter and the attached draft dispatched at the end of October 1942, both Chancellories gave their approval. Bormann, the head of the Party Chancellory, gave his consent quite early on, on one condition: that the pensioning off of judges and of higher civil servants which the Fuehrer had reserved for himself, that naturally that matter would not now be placed in the hands of the Minister of Justice. The head of the Reich Chancellory, Reich Minister Lammers, made grave objections. He was afraid that the effects of the morale of the civil servants would be bad, particularly with the judges, because it was five years since the law of 1933--the Law for the Restitution of the Professional Civil Service--had been Court No. III, Case No. 3.invalid.
And it would surprise them to invalidate this law now--to re enforce it. Therefore, he demanded that on account of such effects, the Reich Minister of the Interior should also play a part in the drafting of this decree and on account of the financial results the Minister of Finance should also participate.
Q Was the decree ever promulgated on account of all those things?
A No, it was never promulgated because the misgivings of the chief of the Reich Chancellory were tentamount to a camouflaged refusal--and that is where the matter just petered out. The axing lists which you have just mentioned, never had any practical significance because that decree was never promulgated. The majority of judges whose names were on those lists were still in office at the end of the war. Not a single judge was retired or was transferred to another office against his will.
Q I have no further questions.
CROSS EXAMINATION BY MR. KING:
Q Witness, did you ever hear of a place called Leitmeritz?
A I was in Leitmeritz, yes.
Q Did you hear Rothaug make a speech there?
A Yes.
Q When was that, please?
THE PRESIDENT: Do you mean "Rothaug" or "Rothenberger"?
MR. KING: Rothaug, your Honor.
THE WITNESS: Yes, Rothaug.
BY MR. KING:
Q When did you say that was, please?
AAs far as I recollect, it was in 1944, hut it may have been in 1943. From November 1943 until October 1944. I was in Leitmeritz.
Q Yes.
A Rothaug, at a meeting of the National Socialist Jurists' Court No. III, Case No. 3.League, made a speech about the administration of penal law in wartime.
Q How did Rothaug express his viewpoint toward defendants who were before him in criminal cases? Do you recall his exact words?
A In a general way, I felt that his attitude war vary severe end that on account of the exigencies of war ha thought it necessary that the administration of criminal justice should be severe. In his expressions ha was, from my personal feeling, every now and than a little vague, and I don't think it was not quite adequate considering how grave the matter was, and quite sometimes-
THE PRESIDENT: Just a moment, please. Mr. King, do you propose to connect this Rothaug speech with the direct examination concerning the defendant Rothenberger?
MR. KING: No, your Honor. The witness has given an affidavit which is in evidence.
THE PRESIDENT: By the defense?
MR. KING: By the defense.
THE PRESIDENT: Vary well.
MR. KING: Will you continua, please?
THE PRESIDENT: The time has coma for our recess.
(A recess was taken.)
THE MARSHAL: Persons in the Court room will please find their seats. The Tribunal is again in session.
BY MR KING:
Q. Witness you were in the middle of a sentence when we recessed, will you repeat the last statement you made, please?
A. I should like to emphasize that the personality and the air of Reich Prosecutor Rothaug -
DR. KOESSEL: One moment, one moment, Koessel for the defendant Rothaug. May it please the Trivunal, I object against the statements of this witness concerning Rothaug and ask that all passages be striken from the record which concern Rothaug. In the direct examination Rothaug was not mentioned; neither was any document submitted by me which would have dealt with the point in question. Therefore, I ask that the statements of the witness concerning these matters be striken from the record.
THE PRESIDENT: Did you submit an affidavit by this witness?
DR. KOESSEL: No, I have not.
THE PRESIDENT: We were informed that an affidavit by this witness had been submitted in favor of the defendant Rothaug.
MR. KING: In favor of the defendant Rothenberger.
THE PRESIDENT: Then why are you examining him concerning Rothaug?
MR. KING: Your Honor, if it is necessary to state the connection we should be very glad to. Rothenberger was Under-Secretary Staatssekretar while Rothaug was still a judge in Nurnberg, and he was Undersecretary at the time when Rothaug was appointed to Berlin. He presumably knew all about Dr. Rothaug and we think if there is any testimony on the part of the witness which will tend to show that connection even more closely than it has been in the record we would be entitled to have it so shown.
THE PRESIDENT: Then do I understand that your cross examination or your examination is for the purpose of producing evidence ultimately against Rothenberger?
MR. KING: Your Honor, that will be one purpose of it, yes, there may be incidental uses that can be made of it.
THE PRESIDENT: We are informed that the electrical transcription is out of order again and we will have to suspend.
THE Tribunal will come to order.
If you can get from this witness any testimony from his own knowledge concerning the activities of the defendant Rothenberger in connection with the appointment or the conduct of Rothaug you may do so, but we understood you were asking for some evidence as to the nature of the speech that Rothaug had made, and perhaps a connection as to any such speech, and the objection is sustained.
DR. KOESSEL: May it please the Tribunal, the speech by Rothaug was made in 1944. At that time Rothenberger was ho longer in office at all, and therefore, in the connection I cannot see what it has to with it. Since moreover nothing has been mentioned about Rothaug, I do not see any reason for having these questions put to the witness, and, therefore, I ask that the answers given by the witness with referent to Rothaug, be striken from the record.
MR. KING: Your Honor, I point out to you in the first place that in this affidavit which the witness has given to defense counsel for Rothenberger he speaks about Rothenberger's mitigating effect upon personnel policy in the justice ministry.
THE PRESIDENT: Is that affidavit in evidence?
MR. KING: I presume it has been offered, Your Honor, it is Rothenberger Exhibit No. 53.
THE PRESIDENT: And it is an affidavit of this witness?
MR. KING: Yes.
THE PRESIDENT: You may inquire as to Rothenberger's activities in the matter of mitigating the rigors of procedure, but we are now talking about Rothenberger and not about Rothaug and you needn't ex tend your examination beyond the point which we have indicated.
Ask your next question and we will see.
DR. KOESSEL: May it please the Tribunal, may I be permitted to ask whether the statement made by this witness about Rotach would obtain any probative value; I would ask that the statements that this witness made about Rothaug be stricken from the record.
THE PRESIDENT: I am not aware at the moment that there was any probative value in the statements. He will disregard them and you may start all over again, Mr. King. The Tribunal will disregard the statements heretofore made by the witness concerning Rothaug.
BY MR. KING:
Q. Witness, do you know that the practice - can you affirm that the practice in the justice ministry was that the under-secretary, the secretary signed appointments of all Judges and Prosecutors to the Ministry of Justice?
A. The appointments of Judges and Prosecutors in the Ministry of Justice - excuse me- Mr. Prosecutor, did you mean those who worked in the Ministry of Justice or the Judges and Prosecutors all together in the Administration of Justice?
Q. I thought I limited it to those, those who were employed withing the Ministry of Justice. In any event I shall ask it again in that form.
A. Those of the high officials who worked in the Reich Ministry of Justice, just as those who were employed outside the Ministry of Justice as Judges and other officials were appointed by the Fuehrer, and their appointments and promotions were effected by the Fuehrer. Only suggestions for the appointments which were made by the Ministry of Justice were first submitted to the Party Chancellory and subsequently after it had approved them they were effected by the Fuehrer. These suggestions for appointments as a rule bore the signature of the Minister and not the under-secretary, because in dealing with the Fuehrer of course the highest officials, that is, the minister himself, signed these suggestions.
Only if the Minister was unable to do so or was absent, the under-secretary signed for him. The decree however, the decree of appointment, always had the signature of the Fuehrer.
Q. And to the best of your knowledge the under-secretary and the secretary did not either sign or initial the appointment of personnel, the prosecutors and judges in the Reich Ministry of Justice is that your best recollection?
A. As I said, the nominations were only signed by the undersecretary if the minister was not present or unable to do so for some reason.
MR. KING: No more questions.
CROSS EXAMINATION BY DR. WANDSCHNEIDER:
Q. I ask that I be permitted to put two brief questions by way of re-direct examination.
Witness, you are in a position to discuss from your own experience and to evaluate the work of Dr. Rothenberger of the Ministry of Justice, aren't you? The course established by Dr. Thierack was certainly that of a man who could be very energetic and very brutal in the interest of the Party.
A. Dr. Thierack was a definite Party Minister and he place great emphasis on the fact that when appointments were made, the wishes and desires of the Party should be taken into account. He also placed great emphasis on seeing to it that at least in the more important positions
THE PRESIDENT: That is not proper re-direct examination. The character of Thierack has been gone into before and it is not proper re-direct examination.