DR. KOESSL (for defendant Rothaug): For my client the same applies, as far as the witness Wilhelm Hoffhmann, Document No. 644 Exhibit 476 is concerned, also Bernhard Kassing, NG 663, Exhibit 477, and Wilhelm Miethsam, NG-72 Exhibit 482...all of these affidavits are in the Document Supplement Book 3A, and were submitted to the Tribunal only on the 14th or 15th of May. I ask that also these witnesses be approved.
THE PRESIDENT: There is no question about them being approved. They have a perfect right of being approved. That is, the names first given to us, but not including those contained in later affidavits.
MR. LAFOLETTE: I don't know what happened, your Honor.
THE PRESIDENT: The switch seems to be off again....
MR. LAFOLLETTE: If they came across our desk we sent them down as quickly as we could. We have no objection. It is one of those things we don't get through in time. We have no objection.
THE PRESIDENT: Those names came through before these other witnesses had given their affidavits. That part is entirely clear.
THEODOR ENGERT, a witness took the stand and testified as follows:
JUDGE BRANDT: You will 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 withhold and add nothing.
(The witness repeated the oath).
JUDGE BRAND: You may be seated.
DR. KOESSL: (for defendant Rothaug): The witness Engert has given an affidavit which will be found in Document Book 3C, and has the number NG-649, Exhibit 156. I ask to be permitted to begin my cross examination.
EXAMINATION.
BY DR. KOESSL:
Q Witness, will you please give the Court your full name and your profession?
A Dr. Theodor Engert, born 10 May 1903. Married. Jurist by profession.
Q Witness, from 1 April, 1939 until 1 August 1941, you were associate judge at the Special Court, Nuernberg, is that correct?
A Yes.
Q Furthermore, from 1 August 1944 until the end of the war you were assistant and Deputy of the General Public Prosecutor at Nuernberg?
A Yes.
Q What types of case were dealt with in your department with the General Public Prosecutor?
A My field included about twenty different types - criminal cases also among them. First, criminal cases of a general nature from various districts, then juvenile cases; political cases; criminal cases which had to do with questions of religion or the church, and criminal cases which had to do with race matters.
Q What kind of cases were considered political cases?
A The term "political" cases was mostly applied to cases of malicious attacks - that is, offenses against the so-called Heimtueckgesetz - the law against malicious attacks. As political cases one considered also cases where political individuals were indicted.
Q Was the case Katzenberg a political case in this sense?
A No, in this sense Katzenberger..in the sense cf distribution of the work, the case Katzenberger was not a political case.
Q How many death sentences were pronounced in political cases during the four years of your activity with the General Public Prosecutor?
AAccording to my recollection in political penal cases three death sentences were pronounced.
Q Could you tell me in how many cases of this kind the defendant Rothaug was the presiding Judge at the Special Court?
A In two of the three cases named here.
Q Can you remember the names of these cases?
A Yes. In one case was that of a lawyer from Regensburg. The name was Pfaffenberger. The other case was that of a worker from the Siemens Works plant in Nuernberg, if I remember correctly, by the name of Grasser.
Q Were both death sentences executed?
A The case against Grosser was. The case against Paffenberger was not.
Q The Prosecution, as part of Document NG-337, Exhibit 168 in Book 3-E, submitted an opinion of the General Public Prosecutor concerning the clemency plea which is signed by Dr. Engert. Are you the representative of the General Public Prosecutor who signed that opinion?
A Yes.
Q How many cases against Jews were pending according to your recollection at that time?
AAs I remember it, during the period from 1 August 1941 until the end of the war there were three cases against Jews.
Q Apart from the cases Katzenberger was there any death sentence?
A No.
Q In your affidavit you have the sentence, "these were the cases of Grasser, and Katzenberger, where he was intend on extermination as he used to term it. Did you mean to say that Rothaug was driven by the motive of extermination?
A I referred in my statement to the punishable acts which were committed here, and should also be meant, and understood, in connection with these punishable acts.
Q In the case of Katzenberger you personally were ordered to go to Berlin?
A Yes.
Q Did such a case presenting the case to the Reich Minister of Justice, occur in other cases too?
A In very few cases. I remember, including the case Katzenberger, three cases.
Q One may say then, that this way of dealing with the case was extraordinary?
A Yes.
Q You were also an associate judge at the Special Court?
A Yes.
Q Did Rothaug, in the manner of conducting the trial, and in the sentence, deal thoroughly with the defendant?
A. Yes, very thoroughly. He used to say - one of his expressions was, that he would say the defendant was the most important piece of evidence, as far as he was concerned.
Q Did you come to know about cases, witness, where the nullity plea raised in favor of the defendant?
A Yes, in one case a death sentence had been passed in the case of a habitual criminal, but the investigation of the General Public Prosecutor proved that the requirements were not there to sentence him as a habitual criminal. Thereupon the files were forwarded to the Chief Reich Prosecutor through the Ministry, and the nullity plea was filed, and the sentence was revoked.
Q. Could you tell me the name of the defendant in this case?
A. I don't remember the name.
DR. KOESSL: I have no further questions to put to this witness.
BY DR. BEHLING (Counsel for the defendant Dr. Schlegelberger);
Q. Witness, you have reported that in connection with the case Katzenberger you traveled to Berlin in order to present the case right there to the Ministry of Justice.
A. Yes.
Q. Would you please tell the Tribunal when that occurred and to whom you talked on that occasion?
A. I can no longer tell the date or the month; it must have occurred in the year 1942. I can only remember an approximate connection of time because on the same day the Chief Public Prosecutor from Oldenburg was present in Berlin concerning the case which later played a part in the Reichstag speech by Adolf Hitler. That is the only connection I can remember with regard to time, and that put my report into the background because Under-secretary Freisler dealt primarily with that other matter. He asked me briefly about the facts in the case, but he asked that I put it only in a few sentences. Just at that moment a telephone call came through--I believe it was at the request of Secretary Freisler. The call came from the Chief Reich Prosecutor at Leipzig, concerning the nullity plea in the Oldenourg case. And as far as I remember, while I was in that office a telephone conversation took place with Undersecretary Schlegelberger. According to my recollection, however, that conversation with Undersecretary Schlegelberger only referred to the Oldenburg case; and not the case itself was discussed, but Undersecretary Freisler stated that he intended to speak to Undersecretary Schlegelberger about that case. Then secretary Freisler himself asked me what my opinion was about the sentence in the case Katzenberger, whereupon I said that one could have legal misgivings against the application of the Decree against Public Enemies. Thereupon he made a statement to the same effect, perhaps something like he did not understand the sentence, or the meaning of the sentence.
That was how it happened. Then, since it had been announced before that a messenger had to go to Leipzig by train, a man from the Ministry, in order to bring the Oldenburg file to Leipzig so that the nullity plea could be filed, I was told to leave and did so.
Q. If I have understood you correctly, therefore, you only discussed this case with Undersecretary Freisler, who was in charge of the Penal Department?
A. Yes.
Q. While you dealt with that case, did you ever come across the name of the former Undersecretary Schlegelberger in writing or in the files?
A. I have no recollection that the name Schlegelberger appeared in any connection with that.
Q. In connection with your personal report to the Ministry, I should like to ask you whether, on the part of the General Public Prosecutor, a report was made about the death sentence, that is, the pronouncement of the death sentence.
A. A report was made to the Ministry in any case--in some cases in writing, in other cases by telephone--about the intention to demand a death sentence in a case. There existed a directive from the Ministry to the effect that the Ministry should be informed of the intention of demanding the death sentence in sufficient time to state an opinion concerning that application. In general, that report was made in writing; however, if there were any doubts as to whether that report would get to the Ministry in time, then a telephone connection was made with the Ministry.
Q. In the cases of Katzenberger and Grasser, is it known to yon what steps were taken by the Ministry in connection with the clemency plea request?
A. No.
DR. BEHLING: I have no further questions.
THE PRESIDENT: Do any other defense counsel desire to crossexamine this witness?
(No response)
Any re-direct examination?
EXAMINATION BY DR. KING:
Q. Witness, you have been cross-examined on an affidavit which you signed on 18 January 1947, which bears the identifying number and letter NG-649. You do not wish to change in any way the statements which you made and signed at that time; is that correct?
A. Yes; I do not wish to change anything.
DR. KOESSL: I object to that question.
MR. KING: We have the answer, Your Honor.
DR. KOESSL: And I ask that the answer be stricken from the record, because, in my opinion, a question in re-examination cannot be put in this general form or in this general manner. That general form of question, in my opinion, would only be admissible if I had in fact dealt with all questions in my cross-examination. Moreover, the same thing applies that I said earlier in the day about such a general form, namely, that not all questions of the cross-examination can be done away with by a single question in re-examination.
THE PRESIDENT: If the witness is able to answer the question, we see no reason why he can't answer it. He has answered it, and the answer may stand.
BY MR. KING:
Q. While you were associated with the Special Court in Nurnberg over a period of about four years, how many cases would you say passed through your department; roughly, the total?
A. What kind of cases?
Q. Criminal cases particularly. Let's take that category first.
A. Penal cases? Well, then, I have to say at first in explanation that as to general penal cases, of those we only had to deal with the appeals. Outside of that, there were very few cases; I cannot give you an exact figure.
Q. Dr. Koessl asked you, a few moments ago, how many political cases you knew of during--one moment please, I haven't completed my question--during the four years in which you were associated with the court. Now, you defined political cases as those concerned with treason and high treason, and I believe your answer to Dr. Koessl was that during that four-year time only three political cases were heard, as I understood it, Now, do you mean to say by that in four years' time, before the Special Court in Nurnberg, only three cases were heard which involved treason and high treason?
DR. KOESSL: May it please the Tribunal, the question raised by the prosecutor was not a correct repetition of the answers given by the witness earlier in the day. The witness did not speak about high treason.
THE PRESIDENT: My recollection is that he included malicious acts, among others. I have it written down here in my notes.
BY MR. KING:
Q. May I then ask the witness to tell us again what he means when he refers to political cases, how he would define a political case? What categories of crime do you include in that term?
A. In most cases, political penal cases were connected with malicious attacks. Cases of high treason, of treason, did not belong within the competence of the People's Court. If I stated before, or if I have spoken before of three sentences, then I meant to say that in three cases where the basic crime was a political matter, that is to say, malicious attacks, that in three cases of that kind a death sentence was pronounced. The actual number of cases of malicious attacks was, of course, much larger, but the number was not quite as large so that cases of malicious attacks would have amounted to a particular burden in my department.
They were only a small part in my work.
Q. It is entirely possible that I misunderstood your earlier definition. Then, to clarify the matter, may I summarize it as I understand it now? When you said political cases before, and mentioned that there were three, that three included cases for which the death sentence was given, and those three further were limited to cases in which the charge was a malicious attack and did not include treason and high treason? Is that correct?
A. Yes, that is correct. May I add to that, that on account of a malicious attack alone, an offense against the law concerning malicious attacks, the death sentence as punishment was not possible. Those who offended against the Law Concerning Malicious Attacks, according to German law, committed an offense, and the maximum penalty in the case of such an offense was five years in prison. Therefore, in the case of a malicious attack one could only pronounce a penitentiary sentence, or a hard labor sentence. In the three cases where the death penalty was pronounced, there were other additional facts or other additional requirements which made the death sentence possible, or rather, which required that a death sentence be passed.
Q. Even though these other requirements were brought in, you still say that they come within the classification of political cases, is that right?
A. Yes, that too, because the basic facts were an offense against the law concerning political acts, a political statement or a criminal act which had a political character.
Q. Now in any one of these three cases, if you recall the facts, were the charges of either treason or high treason included in order to make it possible to pronounce the death sentence?
A. No. High treason or treason could not be tried before the Special Court because the Special Court was not competent to handle these cases.
Q. Just one more question, witness. You said in the four years' time in which you were affiliated with the Nuremberg Special Court that there were, so far as you recalled, cases tried against three persons of the Jewish faith or Jewish origin. The three cases that you mentioned, were they all the Jewish cases, or Jewish cases only in a special category?
A. No, those were all Jewish cases that were dealt with at all.
Q. So far as you remember.
A. As far as I remember.
MR KING: We have no further questions, Your Honor.
JUDGE BRAND: Witness, do you mean by "Jewish cases" that they were the only cases in which a Jew was the defendant, or do you mean that they were only three cases brought under the law against Poles and Jews?
THE WITNESS: No. Cases where, according to my knowledge, persons of Jewish faith were brought to trial. I remember only three cases, and I am in a position to give the names of these three cases if that is desirable.
JUDGE BRAND: And does that apply to the entire work of the Special Court in Nurnberg, or merely to the part of it in which you were concerned?
THE WITNESS: That applies only to that part in which I was concerned, where I worked.
MR. KING: Your Honor, I do have one further question.
DR. KOESSL: May it please Tribunal, a short time ago in a similar case the Prosecution did not permit me to ask the question. I wonder whether the Prosecutor had finished his cross-examination. At least I assumed os.
THE PRESIDENT: The objection will be sustained, and we will take a recess for fifteen minutes.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Before beginning with this witness, there has been quite a little discussion about the witness who was here and went home. Now the Tribunal is of the opinion that there was a ruling that a counter affidavit could be taken in lieu of cross examination, provided the counter affidavit doesn't go beyond the range of the original affidavit. That witness was sent hone on the belief that they were complying with the rule that was then made. That being true, we will adhere to that rule. But in future cases, since there is an issue made about the rule, the rule will now be this: that if a witness is brought here, he must remain here to have his testimony taken. He can't be excused by one side or the other without some action on the part of the Tribunal. Does that make it clear?
MR. KING: With one possibility, Your Honor. I take it the ruling does not apply to the case of Wizigmann who actually appeared even though he had made an affidavit?
THE PRESIDENT: He was cross examined. That can't arise in his case.
MR. KING: One further question before Dr. Wandschneider begins cross examination on this witness. I do not believe that the record shoes that the last witness was officially excused.
THE PRESIDENT: No, that is true. We left in a hurry, and the witness has gone, and he may be officially excused.
MR. KING: I think the witness is outside the door pending your ruling.
KATHARINA FROBOESE, a witness, took the stand and testified as follows:
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.)
JUDGE BLAIR: You may be seated.
DR. WANDSCHNEIDER (for the defendant Dr. Rothenberger): I intend to cross examine the witness, Mrs.
Katharina Froboese. This witness has given an affidavit, NG-525, that is Exhibit 391, in Document Book VIII-A. Referring to this affidavit, I ask your permission to begin the cross examination of this witness.
THE PRESIDENT: Proceed.
EXAMINATION BY DR. WANDSCHNEIDER:
Q. Witness, please state to the Court your first and last names and your personal dates.
A. Frau Katharina Froboese; born 16 of July 1903.
Q. Witness, in your affidavit you testified that during the time from 1931 to 1943, that is for 12 years with the exception of a short interruption, you worked as Dr. Rothenberger's personal secretary. On the basis of this working together for many years, are you well acquainted with the character, personality and abilities of Dr. Rothenberger?
A. I believe I can form a judgment about this.
Q.- In your affidavit you have stated exact dates about the professional career of Dr, Rothenberger, and stated that essentially on the basis of his ability he held leading positions already at an early age. Can you remember and can you say when and at what ages he was Oberregierungsrat, and before that when as a Regierungsrat, he was appointed to the Ministry cf Justice in Hamburg?
A.- I believe that Dr. Rothenberger became the Regierungsrat already in 1927; that was something unusual at that time because he was still a very young man.
Q.- How old was he ?
A.- He must have been about thirty or thirty-one years old.
Q. - And he became Oberegierungsrat when ?
A.- About two years later, Senior Counselor.
Q.- Witness, what did you mean when in your affidavit you said that Dr. Rothenberger in Hamburg was regarded as a little king at the top cf the Administration cf Justice?
A.- He had an absolutely independent position ; extremely independent position in Hamburg, and he maintained his opinion even toward the party authorities ; he was were independent and very self-confident.
Q.- This general opinion about his independence even toward the party authorities -- can you describe that a little more by mentioning of some specific examples so that we have a clearer picture of it ?
MR. KING : If the Court please, I didn't understand the witness to say that he was independent so far as the party authorities were concerned, and until that question is clarified, I object to its conclusion in the question asked by Dr. Wandschneider. It seems it is a loaded question, assuming something that was not said.
THE PRESIDENT : I was busy locking for some documents ; I didn't hear the question. If you still insist on an answer I would like to hear the question again.
Q. - The question was as follows : What did you mean when you said that Dr. Rothenberger, at the top of the Hamburg administration of Justice was regarded as a little king?
A.- In Hamburg ho was the highest judge, and was responsible only to the Ministry of Justice in Berlin.
Q.- What arc the actual attributes of a king, in your opinion ?
A.- Well, that one can state his opinion with emphasis.
Q.- Did Dr. Rothenberger do this ?
A.- May I state a case which I remember ?
Q.- Yes, do. I ask you to do so.
A.- At this time there was a Landesgerichtsdirector, Dr. Lueder, in the Administration of Justice, who was a party member ; as far as I remember an old party member, but in spite of his party membership for a long time, he was transferred from Hamburg because he was not able enough, so that means that his party membership was uneffective.
Q.- Do you remember other cases in which he represented sovereignty at the top of the Hamburg administration of Justice ?
A.- Yes, there is still another case which I remember, there was a man who became director of the prison ; Dr. Rothenberger protested against this because the man did not have the professional ability ? I think he was an artisan ; that was a man by the name of Laatz.
Q.- Did this man have other abilities ?
A.- I cannot say so ; I cannot state that : I do not know that ; I know only that he did not have the abilities which were necessary for the profession.
Q. - Was he politically qualified ? - In a political sense ?
A.- Yes.
Q.- What do you mean by political? Qualified ?
A.- I cannot state that exactly, I only know he was an old party member.
Q.- And how did Dr. Rothenberger act in that conflict at that time ?
A.- He protested against the appointment of this man as director of the prison, or whatever it was called, but as far I remember, Laatz did become prison director.
Q. - Did he remain in that position for a long time, or was he discharged soon ?
A.- I can't say that with certainty any more.
Q.- Frau Froboese, you made statements about the personal policy of Dr. Rothenberger, and said that membership in the party and having large families, to be the father of a large family, were requisites for promotion. Were those the only important factors for the personnel policy.
A.- No.
Q. - Well, what others were decisive in addition to that?
A.- Professional qualities.
Q.- Can you state clear reasons why especially professional qualities were important in Hamburg ?
A.- Because the tradition of the judges in Hamburg was an old and good tradition, and above all, because Dr. Rothenberger himself was a bery able jurist, and could not do anything with unqualified assistants. In no way did the party membership alone decide that -
Q.- Speak mere slowly, please.
A.- Perhaps I may say on this point that I myself was never a party member. If Dr. Rothenberger had followed this line very strictly he could not have accepted me as a secretary ; he would not have kept me.
Q.- You were never a party member ?
A.- No, I was never a party member ?
Q. - Did Dr. Rothenberger knew that ?
A. - Yes, but he never exercised any pressure on me ; he never exerted any pressure on me.
Q.- Frau Froboese, when Dr. Rothenberger in August 1942, came to Berlin as Under Secretary, do you know anything about whether he liked to go to Berlin ; or didn't he like to go?
A.- No, it was very difficult for him to leave Hamburg.
Q.- Would you please describe to the Court what the reasons were that it was difficult for him to go to Berlin?
A.- First of all, he liked Hamburg, and he had a house there ; and he had an independent position there ; as far as I can judge, he went to Berlin because he hoped, in the supposed position of a Under Secretary, he could realize his reforms on which he was working for a long time -- for many years.
Q. - How can you judge that ?
A.- Because I wrote that for him myself.
Q. - Frau Froboese, you characterized Dr. Rothenberger as a cool, reasonable and easily suspicious man, for whom it was very difficult to make friends. In regard to this character of the man, can you tell us some details ?
A.- Yes, I would like to say that Dr. Rothenberger's position as such a young chief-president, was not an easy one toward so many older judges ; and that especially towards these older judges he was reserved. Quite different was his relationship to the employees in medium positions and to the lower officials.
He always had an open ear for them ; they could bring everything to him.
Q.- Then, how do you explain this difference between the relationships to the employees in medium positions, in intermediate positions -- in contrast to his own colleagues?
A.- Because he was their superior when he was still young.
Q.- Do you think that these difficulties were eliminated in regard to the lower employees so that he could be more friendly ?
A.- Yes, naturally.
Q.- Witness, further more, you mentioned that Dr. Rothenberger was a very ambitious person. I ask you also to make a statement in regard to this subject. How you came to that conclusion, and what kind of a conviction you meant ?
A.- Yes, he was ambitious, but it was an ambition in regard to subject matters -- in other words to realize the plans which were very dear to him.
Q. - Was he a person who was ambitious only for his own personal benefit, or for the sake of his own person, or was he a person who has a passion -- the passion of a person who was filled with a consciousness of his task ?
A.- Yes, I believe he wanted to serve the cause.
Q.- Was this a man who was at the disposal of his task fir many years without consideration of his person or time?
A.- He could not devote himself to this task exclusively.
Q. - Now, I mean his entire task as a judge ?
A.- Yes.
Q.- As a jurist ?
A.- Yes, I believe so.
Q. - Well, when Dr. Rothenberger came to Berlin in the year 1942, he entered a new environment, and worked together with Reich Minister of Justice Thierack. In your affidavit you stated that there were conflicts between these two persons in the course of time. Would you please tell us some more details about the character and nature of these conflicts?
A.- I could imagine that Dr. Thierack, the Minister, did not like the plans for reforms because he had no part in them , and perhaps he thought that he was somewhat put into the background ; and any way there was a certain opposition ; it was known throughout the entire building , they were talking about the invasion from Hamburg, and with that they meant all of the Hamburg people who Dr. Rothenberger had brought with him as associates. Dr. Thierack was somewhat of a rough nature, and Dr. Rothenberger, on the other hand, was the spiritual type. There was quite an obvious contrast between these two and which, as I said, was known in the entire building.
Q.- Witness, in your affidavit you said that when Dr. Rothenberger took office, it was known to you that the Department IV in the Ministry of Justice was not subordinated to him. Did you know, or did it become known to you, that the other penal divisions III, V and XV were also not to be subordinated to him from the beginning ?
A.- Yes. I didn't state that expressly, but that was how it was , all penal divisions were kept by the Minister himself.
Q.- On an important point you testified as follows, which I shall read to you in order to reproduce it correctly. "When Dr. Rothenberger was working at the Health Office in Hamburg before 1933, at that time already on the basis of his insight into the matters which he had known through his activities, he was already of the opinion that people infected with incurable herediraty diseases were to be exterminated". That was supposed to have been in the year 1932.
Can you describe to the Court what occurrence was the basis of your testimony ?
Mr. KING : One moment, please. I think perhaps that my objection does not go to the question as asked ; it is only to the fact that apparently the German text of the affidavit was not before the translator, and I am not sure at the moment from what portion of the affidavit this quotation is being made.