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.
MR. KING: I think the fault is mine; I was locking at another section in the affidavit.
JUDGE BRAND: Where is this?
MR. KING: It is the beginning of the second paragraph, the second full paragraph on the first page cf the affidavit.
DR. WANDSCHNEIDER: Does the Court find the place I am referring to?
JUDGE BRAND: Yes.
DR. WANDSCHNEIDER: Thank you very much.
Q In this place it says, if I may briefly repeat: "According to my recollection, already at that time, he was cf the opinion that the people infected with incurable hereditary diseases were to be exterminated." His views were based on actual knowledge of matters he acquired in secondary judgments in the Health Department. Witness, referring to this formulation of your testimony, I am asking you on the basis of what actually occurred did you arrive at this opinion or a similar one?
A Dr. Rothenberger as a member of the Health Department had at that time, to inspect hospitals. He also let me and other associated make such an inspection trip. I, myself, got the most horrible impression from that, and I also talked about it with him. It was a question of individual cases, that is cases of beings -- who could hardly be described by the name of a human being any more, and it was his conception that it would be better if such people should be exterminated, and that was my opinion, too.
Q Did I understand you correctly that you said in agreement with your conception that he said at that time such people better be saved by death?
A Yes.
Q During the examination, did you ever describe this event of the year 1932 in the sense that Dr. Rothenberger stated already in 1932 that such people should better be killed?
A No.
Q You did not state that?
A No.
Q In 1932, did you know anything at all about the concept of euthanasia and the problem that is connected with it? Did you hear anything about it or know anything about it or know anything about it at that time? Did you know what euthanasia was?
A No, the word euthanasia, I heard for the first time in 1943.
Q In your affidavit it says further: After the opinion of Dr. Rothenberger for 1932 is stated immediately following that it reads, and I quote, and I am reading it to you, "As far as I know, he also supported this idea later on, especially later when in his capacity as Under-Secretary, he actively participated in the drafting of legislation." My question to you, witness, is to the fact what previous knowledge did you, yourself, have as a basis of such a judgment?
A No, direct knowledge. I am only of the opinion.
Q Did you have any files on the basis of which you could reach such an opinion?
A No, I am only of the opinion that a --
Q Just a. moment there are other possibilities. In this time, since 1942, did you have discussions with Dr. Rothenberger, conversations from which you could get such information?
A No.
Q How did you reach such a general opinion?
A Because I think such an opinion, in such an important basic question cannot be changed, because the concept which Dr. Rothenberger had gained at that time, in my opinion, he had to keep.
Q Witness, do you, therefore, mean this concept which he could not have changed, in your opinion, during ten years, was merely the opinion of 1932; that it would be more merciful if such incurable sick people should be dead?
A Yes.
Q Did you, in any way, have the present opinion -- want to express the present opinion, of Dr. Rothenberger, from the year 1932 to 1942, that he was of the opinion that such incurable sick people would have been killed?
A No, on no account.
Q Witness, in your affidavit you also spoke about hereditary biological questions, and you said also he was, as far as I know in a decisive position, engaged in hereditary biological legislation." How do you mean that?
A This field did not belong to the divisions which Minister Thierack kept for himself, so that Dr. Rothenberger, in my opinion, as State Secretary must have participated in them.
Q Do you have any concrete evidence, files, drafts of laws, and the like, that you were thinking over when you answered this question?
A No.
Q Or, did you only quite generally answer the question in that way because you were of the opinion that as Under-Secretary he must have been competent?
A Yes.
Q At the end, witness, you made some statements about Ministerialdirector Letz who was in Division I in the Ministry of Justice, and you said that he was a luke-warm National Socialist. Can you tell the Court briefly something about the personality of the Ministerialdirector Letz, and his relationship to Dr. Rothenberger -- what he was in Hamburg and in Berlin?
A Herr Letz was in Hamburg a Deputy of Dr. Rothenberger's. He was Vice-president of the District Court of appeals. I know that Dr. Rothenberger thought very highly of him as a good worker as a critical person, and that he knew well that he was everything but a fanatical National Socialist.
Q Critical traits are sometimes very easy to pronounce. Please give some examples how his attitude was, expressly in some statements he made, and in the treatment accorded other persons.
A I know for example that Ministerialdirector Letz made rather flowery statements in regard to the Minister, usually. He said for example, that he was a Neanderthalor.
Q What did he mean by that?
A That, as far as I know is a very primitive person.
Q If we now go into the complete history, pro-historic times, to the zoological, can you how give another characteristic?
A Yes, he also called him Mungo.
Q What did he mean by that?
A Mungo, as far as I know, is a little animal like a beaver that has its cars every where, and puts its nose into everything.
Q Witness, the affidavit which you originally made out, you heard read here by me in its essential, parts, and have made the supplement which resulted from the cross examination today. Do you consider that affidavit of 5 December 1946 -- do you maintain it together with the additions of the cross examination, together with the results of the cross examination today?
A Yes.
DR. WANDSCHNEIDER; Thank you very much. I have no further questions.
EXAMINATION BY MR. KING:
Q Witness, just one Question, Can you give an approximation of the approximate number of people from Hamburg that Dr. Rothenberger brought with him when he came to the Justice Ministry?
A Yes, I believe there wort about 16 or 18 people who came in the course of time, one after the other.
Q And, would you say that these people were formally in key positions with Dr. Rothenberger in Hamburg?
A In leading positions, no. They were director's of district courts, district court judges, yes, judges, but not actually leading officials.
Q Not leading positions in the sense that they were above Dr. Rothenberger, of course, but they were people of some importance in the administration of the court system in Hamburg, is that right?
A Yes, certainly they were people whom Dr. Rothenberger had selected according to the point of view, as to when he needed them in the Ministry of Justice.
MR. KING: I have no further questions, your Honor.
THE PRESIDENT: The witness may be excused.
(Thereupon the witness was excused and withdrew from the courtroom.)
Priest Buchhelz, a witness, took the stand and testified as follows:
BY JUDGE BRAND:
Q Will you hold up your right hand and repeat this oath after me:
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 BRAND: You may be seabed.
DR. WANDSCHNEIDER (for Dr. Rothenberger): I ask permission to cross examine the priest Buchholz.
by dr. wandschneider:
Q. Witness, you made an affidavit for the prosecution, which is Exhibit 301, Document book 7B. I have only two brief questions, before I go into those questions I ask you, witness, to state to the Court your name, your last name, and your present duty.
A. My name is Peter buchholz. At present I am prison Chaplain in Dusseldorf. I was born on 31 Janvier 1888 in Oberpleiss, in the District of Cologne.
Q. Thank you very much. My two questions refer to a part of the affidavit on page 2, the first half of page 2, it begins with the words - "May I ask whether you were present when in September 1943----" Does the Court have the place? Exhibit 301, Document NG-534. Beginning on page 28 of the English Document book, page 2 of the original, the last half of the page....it begins with the words -- "may I ask you--"
Father, at the place which I have just pointed out in your affidavit you said that you were present when in September 1943 many people were executed after and air raid. May I ask you whether, within the literal meaning of this statement, you were present during the executions or not?
A. During the execution itself I was not present. I merely wanted to state that during the time of the executions I was present in the institution in order to administer the last rites to those who had been sentenced to death before they went to the scaffold.
Q. All right. You further state in your affidavit that there was a clemency plea under way for many of these people -- that is, that the decision about the pardon had not yet been made, and that certainly many of them would still have been pardoned. In this connection is it known to you that in individual cases erroneous executions were carried out -- that is, on the basis of an error of the institution carrying out the execution. The execution was Carried out without having a decision concerning the pardon at hand.
A. I remember that in the case of the executions in September 1943 several individual cases happened which were due to an error of the executing authority after the air raids. Those who had been convicted were executed without a decision having been made about their clemency plea.
Q. Did you mean those cases by the sentence which I have just read?
A. Yes, other cases of that kind, except in connection with the executions of September 1943 I do not know.
Q. You thus mean to say that outside of these individual cases of erroneous executions no further cases are known to you in which executions were carried out without previous decisions about the clemency Plea?
A. Yes, by my answer I mean to say that.
DR. WANDSCHNEIDER: Thank you. I have no further questions.
DR. SCHILF: (for defendants Klemm and Mettgenberg): My cross examination also concerns the Same affidavit of the witness - that is, Exhibit 301.
BY DR. SCHILF:
Q. In this affidavit you described your own position as chaplain of the penal Institution in Ploetzensee, and in so saying you said about yourself that you had a position of a trusted person in relationship to the Ministry. I would like to ask you - may I ask you to clarify this statement by some facts?
A. When I took over my position as prison chaplain in Ploetzensee I simultaneously, from my predecessor Oberpfarrer Hohoff who had died in the Fall of 1943, had taken over the task in all matters of the prison regarding the spiritual care of Greater Germany....in all matters which made it necessary to have some discussions with the Ministry, to appear there, in order to eliminate local difficulties of a personal, official, nature. And that is, in confidential talks mainly with the Referent Ministerialrat -- Ministerialrat counselor Dr. Richer.
Such difficulties arose, for one thing, from 1943 on very frequently, and you will understand this especially well if I tell you that with the taking of office of General Public Prosecutor Hansen of the Highest Prussian Court of appeals, the Kammergericht, a very sharp tone began against the spiritual care in prisons and against those who exercised the spiritual care, the priests, the chaplains.
Q. Father, if I understood you correctly Dr. Richer was expert in the Ministry of Justice?
A. Yes.
Q. Dr. Hansen was General Public Prosecutor?
A. Yes.
Q. At the Highest Prussian Court of Appeals in Berlin and the prison Ploetzensee was probably subordinated to the General Public Prosecutor Kansen?
A. That is quite correct.
Q. In your affidavit you mention that the danger had arisen again and again that all penal institutions would be subordinated to the SS, and thus to Himmler, so that the entire matter of spiritual care would have been eliminated, in your opinion at that time. Did you discuss these questions with Dr. Richler too?
A. Yes, and I could speak with him about these matters quite openly because even though he was a Party member he was in his innermost self....had remained a convinced Christian and he kept his position and utilized it in the main in order to help us priests in our work which became consequently more difficult -- to help us as well as he could.. And I knew from him, too, about these dangers - which had endangered the spiritual care of the Penal Institution from time to time, and again and again. If it was possible to eliminate these dangers in it was not in the least a service which Dr. Richler performed.
Q. Father, you further said in your affidavit that in 1943 regulations were issued currently making the spiritual care more difficult, and you stated that this was done upon the initiative of General Public Prosecutor Dr. Hansen.
May I ask you to inform the Court of your knowledge, by means of concrete facts - namely, how Hanzen could have given the initiative for this.
A. In may 1943 I took over my duties at ploetzensee. Of course, I had to report to my competent superior, General Public Prosecutor Hansen. He received me, but the manner in which he received me and the things which he told me on that occasion justified what I had already previously been told about him by my colleagues in Berlin. He said, among other things, that he would -- I want to say first that Hansen had entered his office a short time before that... Thus he said, "I shall interest myself in this spiritual care, and you will hear about it soon". And we did hear about it because soon after that these limiting regulations came out, about which I already spoke during my interrogation in Berlin and which probably can be read in the transcript of that interrogation. If I may state, the most important one of these regulations in detail-
Q. That isn't necessary. I my I ask you to toll no further whether you discussed this attitude of Hansen with Dr. Eichler too?
A. Yes.
Q. And what did Herr Eichler tell you?
A. Eichler, in view of his attitude toward spiritual care, recognized its value in penal executions and supported it. Eichler was alarmed about the course that was entered, and described Hansen as the driver and the evil spirit of the ministry of Justice, who was responsible for all the limitations and hindrances which were put in the way of spiritual care in the future.
Q. Father, you told the Tribunal about a personal meeting with Hansen, and that was when you made your first visit reporting for work. Did you still have meetings with Dr. Hansen later on?
A. I met him once in Ploetzensee, after these executions, when he had all of the officials of the prison called together. On this occasion he had discharged the man who was prison director up to that time, Oberregierunpsrat Vacano, in a not very commendable manner. The more profound reason for this was probably the not reliable attitude of Vacano to the meaning that Hansen meant by the word "reliable", because Vacano was not a Party member; he was a convinced and practicing Catholic and wherever and however he could he supported the spritual care and tried, in spite of the limiting regulations issued by Hansen--that is, by the Ministry of Justice--to give spiritual care the possibility of exercising its functions. The outside cause of his forced pensioning was the fact that during this air-raid night from the 2nd to the 3rd of September, during which the death house, where the three hundred persons convicted, to death were expecting their execution, went up in flames, in spite of their being shackled, several had succeeded in fleeing. That was used as the superficial cause of the dismissal of Vacano. On that occasion Hansen said, in a very sharp terms: "I warn everybody not to try to look for any other version or to speak of any other reason for which Senior Govern ment Counsellor Vacano is dismissed from this office."