Chapter LXXVII: Section VII: of the secret decree declares that the directives will (4)

As to what occurred in the Ministry of Justice with regard to the evacuation of Sonnenburg, the testimony of Robert Hecker is important. Hecker was the Referent in the department of justice in Department V of Berlin. Hecker testified in substance as follows: that in discussions with Hansen, the general public prosecutor for the Kammergericht in Berlin and the official under the Ministry of Justice responsible for certain matters in penal institutions, Hansen told him it might be necessary to evacuate Sonnenburg and that preliminary discussions had been carried on; that he, Hansen, had discussed the matter with the State Secretary with regard to the measures to be taken, and he had misgivings and suggested to Hecker that Hecker discuss the matter with the State Secretary. Hecker further stated that when he was the official on duty one night for the Minister of Justice, he received a telephone call from the director at Sonnenburg to the effect that a Russian break-through had taken place and asking for instructions; that he thereupon called Thierack at his home and asked for instructions and Thierack stated that the institution would be defended, and that the authorities at the institution were so informed. As the break-through did not then threaten the penitentiary, this order was not carried out. Hecker testified that later the director of the prison asked what measures he should take if the occasion should arise and that thereupon he called the general public prosecutor at the Kammergericht as to what instructions had been issued. The general public prosecutor was away at that time but the Referent who was present informed him that according to the instructions issued, the police were supposed to be informed in the case of evacuations. He testified further that Eggensperger, a Referent in Department V of the Ministry of Justice, who was on duty the night of the evacuation of Sonnenburg, had informed him the next morning that the prison had been evacuated; that Eggensperger told him that Hansen had called the night before, stating that the action of turning the prisoners not to be evacuated over to the Gestapo was under way and, when questioned as to whether it had been authorized by the Ministry of Justice, Hansen had named Klemm as the person in the Ministry who knew of and approved the transaction. He stated further that Eggensperger had made a typewritten note reporting his telephone conversation with Hansen and that he had received a copy of the note.

On cross-examination the witness Hecker testified in substance that he was himself in charge of the problem of the evacuation of prisons. When asked if he had heard that Himmler, in the middle of January, had issued an order concerning Sonnenburg, he answered that he had not and repeatedly denied any knowledge to the effect that Himmler had taken charge at Sonnenburg, and stated that he had not heard any rumor in the Ministry of Justice to the effect that Thierack had given up authority to issue orders concerning Sonnenburg. He stated that the conversation with Thierack over the telephone was at night and that Thierack had merely answered briefly his inquiry, stating that the institution would be defended. He testified that during the course of that night he repeatedly spoke to the authorities in Sonnenburg penitentiary and that he tried to contact the competent person in the Kammergericht, namely Hansen, in regard to the matter. Hecker stated that the director of the penitentiary knew that some kind of an agreement with the Gestapo existed and what he should do in the case of an evacuation, and that there were secret directives for evacuating penitentiaries and prisons. As to the note made by Eggensperger, he stated that it included a statement to the effect that the matter had been discussed between the General Public Prosecutor and the State Secretary Klemm. When asked about what happened to prisoners not evacuated, he replied that “as far as I was informed, the prisoners were shot by the Gestapo.”

The testimony of Eggensperger in connection with the evacuation of Sonnenburg is also significant. Eggensperger testified that he was an official in the penal execution department of the Ministry of Justice; that he was the official on duty for the entire Ministry of Justice to whom telephone calls were channeled on the night that Hansen reported the evacuation of Sonnenburg. Hansen called him during the night and informed him that during that night the prisoners of Sonnenburg penitentiary would be handed over to the Gestapo; that a detachment of the Gestapo had already arrived at Sonnenburg; and that the action was under way. “Hansen told me that this evacuation, or rather this transfer of the prisoners being carried out, was because the enemy constituted an immediate danger to the prison.” When asked whether this directive had been approved by anyone in the Ministry of Justice, Hansen answered, “Yes. This matter has been discussed with the State Secretary Klemm.” He testified as to the note which he made reporting the transaction, and that Hecker received a copy of this note. He stated that he had been deeply impressed by the information which he had received and asked Hecker if it was true that the State Secretary knew anything about the matter and approved it, and when asked what Hecker said, he answered:

“Hecker shrugged his shoulders. He looked at me and said, ‘Well,
Hansen has--’ Well, I can only give you the sense of what he
says, that Hansen has fooled this Under Secretary of State and
he has got around him, or he impressed him. I think he said,
‘Hansen has convinced the Under Secretary of State to approve
it.’”

He further stated that when he asked Hansen whether the minister or the Ministry were familiar with the matter, he answered in the affirmative and told him that the State Secretary knew about it and that he had put this down in his file note.

On cross-examination when asked if, as a liaison officer in Berlin in Department V, he reported repeatedly to the defendant Klemm in his capacity as State Secretary, he answered, “Yes.” When asked with what matters he was concerned, he answered, “Again and again there were current matters which had to be discussed with the State Secretary who wanted some information and some information I gave him myself. In some complicated cases I asked the officials in charge to come in.” The witness also testified that because of Klemm’s personality he, Eggensperger, was quite surprised at the action of Klemm and that was why he discussed the matter with Hecker in the morning. He testified further that it was his duty to make the file note as to the telephone conversation which he had received; that that file note was, he would say, about a half of a typewritten page. When asked if the file note included the name Klemm in connection with the fact that Hansen had referred to him, he answered, “Yes.” When asked whether Hansen spoke about an agreement, whether he used the word “agreement,” the witness answered that while he could not state the exact word used, that Hansen informed him that the matter had been discussed and approved, and stated that Hansen “reported to me the execution of a directive which had been issued.” He further stated:

“If you ask me concerning the execution, it was the report of a
general public prosecutor concerning an important occurrence in
a penitentiary. I would formulate it like that. It was his duty
to report this matter.”

When asked if the name Klemm was mentioned by Hansen because Hansen had noticed that the witness had some doubts, the witness answered:

“I certainly didn’t ask him whether the State Secretary had a
report on that matter. I certainly asked him that the minister
knew about it, and therefore, it was striking that he did not
refer to the minister himself but rather to Klemm.”

He further testified:

“I was the only official, apart from Hecker, in Department V,
who had remained in Berlin, and in that capacity I maintained
contact between the Ministry--that is the RMJ--and the evacuated
divisions. If Hansen was given any instructions, then it was I
who passed them on to him. That brought about the fact that I
had frequent contact with him, particularly over the telephone.”

He stated further that he never heard of anybody being called to account for the action taken in connection with the massacre at Sonnenburg.

Pertaining to the question as to who had the authority to determine what prisoners were to be evacuated in case of evacuation and what prisoners were to be turned over to the Gestapo for liquidation, [NG-030, Pros. Exhibit 290] is important.

This exhibit includes the directive from the Reich Ministry of Justice, dated 5 February 1945, which is designated “Secret,” to the public prosecutor in Linz, re: preparation for an evacuation of the penal institution within the district of Oberlandesgericht Graz. This letter shows enclosures. It states as follows:

“In view of the proximity of the front line I have advised the
public prosecutor in Graz to make the necessary preparations
for possible evacuation of the penal institutions within his
jurisdiction, and I have decided that your district shall be the
reception center for these institutions. You are requested to
take any steps which may be necessary for their reception, as it
might [become urgent at any moment. You will also get in touch]
with the public prosecution in Graz and exchange all necessary
particulars with him for the settlement of questions concerning
you both. For details I refer to the enclosed directives. You
are requested to keep me informed of whatever steps you take.”

It also includes a directive from the Reich Ministry of Justice with the file mark “IV a 56/45 g,” dated Berlin, 12 February 1945, marked “Secret,” and also contains the stamp of the Oberlandesgericht president at Linz, “Received 9 March 1945.” It is designated, “Relieving of the Penitentiaries.” It shows enclosures as follows: “Additional copies for the public prosecutor and all independent penal institutions.” This directive states, among other things:

“Foreigners can only be set free in full agreement with the
police authorities; otherwise they must be transferred to the
police.”

This directive is signed “Thierack.”

The exhibit contains further a directive to the public prosecutors, Linz, and is in part as follows:

“To the: Public Prosecutors, Linz.

The authorities in charge of the independent
administrative offices.

Judges in charge of the juvenile prisons in Ottenheim
[and Mattighofen].

“For their knowledge and consideration. The circulars given in
the Reich ordinance of the Reich Ministers of Justice, dated 12
February, have been communicated as follows: * * *.”

This directive also contains a form to be used in connection with the discharge of prisoners, designated: “Supplement to: Reich Ordinance of Reich Ministers of Justice, dated 12 February 1945,” with the file mark “IV a 56/45 g,” and has the seal of Linz showing receipt.

The exhibit also includes a directive of “Evacuation of the Judicial Executive Institutions Within the General Plan for the Evacuation of Threatened Territories in the Reich.” This is marked “Secret” and has no heading, no date, and no signature (_NG-030, Pros. Ex. 290_).

This states, in paragraph 1:

“The evacuation of penal institutions lying within territories
threatened by enemy attack is a matter of concern for the
public prosecutors of the territories to be evacuated as well
as for those within the territories appointed for reception in
transit. This does not apply if the evacuation can be confined
to a change of locality within the Landesgericht itself. The
carrying out without friction of all measures of evacuation
therefore depends upon the close cooperation of the public
prosecutors concerned who must get in touch with each other on
all the particulars which are necessary for those measures.
The individual measures for evacuation must be left as far as
possible to the personal initiative of the public prosecutors
concerned, as only they possess the necessary knowledge of local
conditions and are able to bring about the required cooperation
with local administrative and Party offices. These directives
can only give an indication of what is to be done.”

From the import, a fair inference is that it was an enclosure to the original letter of Thierack.

Further along, the document states:

“NN prisoners are not to be released under any circumstances.
They are to be rapidly transferred to territories which are not
in danger of enemy attack according to special orders.

“Foreigners are to be released only if they had their residence
in the Reich for many years, if they are especially reliable and
fulfill all the requirements under (_h_).

“Jews, Jewish persons of mixed race of the first degree, and
gypsies are not to be released.

“For Polish subjects, who are protected personnel, a release may
be considered only if the requirements made under (_h_)
apply to them after the strictest investigation. The same
applies to people living in the Protectorate of Bohemia and
Moravia. Poles who have been sentenced to at least 1 year
internment in a disciplinary camp, may also be turned over
to the police, with an interruption, if necessary, in the
execution of their sentence. This can only be done if an
agreement is reached with the commander of the Security Police
and the SD.”

Under the heading of “Carrying-out the evacuation” is stated (_NG-030, Pros. Ex. 290_):

“As soon as orders for evacuation are issued, the evacuation
has to be carried out in full accordance with the plans agreed
upon. In many cases, it is true, prevailing conditions will
necessitate deviations and improvisations. Should it become
impossible, for any reasons, to bring the prisoners back to the
extent agreed upon, those prisoners who are not outspokenly
asocial or hostile to the State, are to be released in good
time so that they will not fall into the hands of the enemy.
The elements mentioned before, however, must be turned over
to the police for their removal, and if this is not possible
they must be rendered harmless by shooting. All traces of the
extermination are to be carefully removed.”

Further documents in this exhibit, issued at Linz, show that by agreement and orders of the defense commissioner, orders were issued by the prosecutor at Linz which appear to implement the preceding document. On 14 April 1945 the chief public prosecutor at Linz made an official report to the Reich Ministry of Justice showing steps which he had taken.

The significant directives of the Minister of Justice above quoted were issued shortly after the incident at Sonnenburg and concerned the disposition of prisoners in the penitentiaries of the Reich in areas threatened by the Allied advance. It is also significant that the defendant Klemm who denies all connection with or authority over the penitentiary at Sonnenburg in late January 1945 subsequently on 11 February 1945 ordered the evacuation of the prison at Bautzen, including the discharge of certain prisoners and the transfer of those not so discharged to Waldheim; and that around Easter of 1945 he ordered the evacuation of the prison at Rothenfeld and instructed the matron as to the disposition of the prisoners.

It is the contention of the defendant that Hansen was an unreliable person who falsely used the name of the State Secretary. It is to be noted, however, that the testimony does not show that Hansen was undertaking to obtain from Eggensperger authority for some contemplated action under alleged authority from the State Secretary. Hansen called Eggensperger who was the official on duty at the Ministry of Justice to make an official report of an action which was already under way and when questioned as to his authority, he cited the approval of the State Secretary. His report was embodied in an official note as he could assume it would be. This note stated that the action taken was based upon the approval of the State Secretary. Surely Hansen, an official under the Minister of Justice, whatever his character might have been, would never have dared to use falsely an alleged authority by the State Secretary to account for the liquidation of some 800 people and then make an official report that, according to all normal procedure, would come directly into the hands of the State Secretary.

This Tribunal is asked to believe that in the middle of January, Himmler took over the operations of the penitentiary at Sonnenburg and that the first time that the State Secretary, the defendant Klemm, heard of the liquidation of those who were not evacuated was in this trial. That Himmler controlled evacuations within the area of his command was shown by evidence in this case and can be assumed from the nature of the evacuation. An evacuation is a matter of military concern since it involves interference on the roads with military operations and transport. The operational control of a penal institution is an entirely different matter. In the middle of January, Himmler was in command of an army which was having considerable difficulty and he was scarcely in a position to assume the functions and responsibilities in the Ministry of Justice as regards the operations of a penal institution. Certainly if he did so it is strange that Eggensperger, a Referent in Department V dealing with penal institutions, or Hecker, also in Department V and in charge of evacuations of penal institutions, or the director of the institution at Sonnenburg, knew nothing about this transfer of authority some two weeks after it is alleged to have been made. It was also strange that Hansen, who is alleged to have known of this transfer of authority, would call the Ministry of Justice and make an official report as to the transaction on the night when it was under way and cite as his authority for his connection therewith the State Secretary. That the defendant Klemm knew nothing about the liquidation of some 800 people in this institution until he learned it in this trial, overtaxes the credulity of this Tribunal. Even in Nazi Germany the evacuation of a penal institution and the liquidation of 800 people could hardly have escaped the attention of the Minister of Justice himself or his State Secretary charged with supervision of Department V which was competent for penal institutions. Exhibit 290, herein extensively quoted, shows that the operations of penal institutions and the disposition of the inmates remained a function of the Ministry of Justice, and it is the opinion of this Tribunal that the Ministry of Justice was, at the time of the evacuation of Sonnenburg, responsible for the turning over of the inmates to the Gestapo for liquidation, and that the defendant, Klemm, approved in substance, if not in detail, this transaction.

When Rothenberger was ousted as State Secretary because he was not brutal enough, it was Klemm who was chosen to carry on the Thierack program in closest cooperation with the heads of the Nazi conspiracy. Klemm was in the inner circle of the Nazi war criminals. He must share with his dead friend, Thierack, (with whom he had lived), and his missing friend, Bormann, the responsibility, at a high policy level, for the crimes committed in the name of justice which fill the pages of this record. We find no evidence warranting mitigation of his punishment.

Upon the evidence in this case it is the judgment of this Tribunal that the defendant, Klemm, is guilty under counts two and three of the indictment.

_THE DEFENDANT ROTHENBERGER_

From his own sworn statements we derive the following information concerning the defendant Rothenberger. He joined the NSDAP on 1 May 1933 “for reasons of full conviction.” From 1937 until 1942 he held the position of Gau Rechtsamtleiter. He states: “As such I also belonged to the Leadership Corps.” Parenthetically, it should be stated that the organization within the Leadership Corps to which he belonged has been declared criminal by the judgment of the first International Military Tribunal, and that membership therein with knowledge of its illegal activities is a punishable crime under C. C. Law 10. We consider the interesting fact of his membership in the Leadership Corps no further, solely because defendant Rothenberger was not charged in the indictment with membership in a criminal organization. He was a Dienstleiter in the NSDAP during 1942 and 1943. From 1934 to 1942 he was Gaufuehrer in the National Socialist Jurists’ League. In 1931 he became Landgerichtsdirektor, and in 1933 Justiz-Senator in Hamburg. From 1935 to 1942 he was president of the district court of appeals in Hamburg. In 1942 he was appointed Under Secretary in the Ministry of Justice under Thierack. He remained in that office until he left the Ministry in December 1943, after which he served as a notary in Hamburg. Thus, it is established by his own evidence that while serving as president of the district court of appeals he was also actively engaged as a Party official. Other evidence discloses the wide extent to which the interests and demands of the Ministry of Justice, the Party, the Gau Leadership, the SS, the SD, and the Gestapo affected his conduct in matters pertaining to the administration of justice. Rothenberger took over the Gau Leadership of the National Socialist Lawyers’ League at the request of Gauleiter Kauffmann, who was the representative of German sovereignty in the Gau and who was, for all intents and purposes, a local dictator. As Gaufuehrer during the period following the seizure of power, Rothenberger had ample opportunity to learn of the corruption which permeated the administration of justice. He testified:

“It has been emphasized here time and again how during the
first period, after the revolution of 1933, every Kreisleiter
attempted to interfere in court proceedings; the Gestapo tried
to revise sentences, and it is known how the NSRB, the National
Socialist Jurists’ League, tried to gain influence with the
Gauleiter or the Reichsstatthalter in order to act against the
administration of justice.”

Concerning the dual capacity in which he served, he said:

“On account of the identity, of course, between president of the
district court of appeals and Gaufuehrer, I was envied by all
other district courts of appeal because they continually had to
struggle against the Party while I was saved this struggle.”

In August 1939, on the eve of war, Rothenberger was in conference with officials of the SS and expressed to them the wish to be able to fall back on the information apparatus of the SD, and offered to furnish to the SD copies of “such sentences as are significant on account of their importance for the carrying-out of the National Socialist ideas in the field of the administration of justice.” Rothenberger testified that during the first few years after the seizure of power, there was the usual system of SD informers in Hamburg. The unsatisfactory personnel in the SD was removed by Reichsstatthalter Kauffmann, and the defendant Rothenberger nominated in their place individuals who, he said, “were judges and who I knew would never submit reports which were against the administration of justice.” He states also:

“In the meantime, the directive had been sent down from the
Reich Ministry of Justice to the effect that the SD should be
considered and used as a source of information of the State by
agencies of the administration of justice.”

While he was president of the district court of appeals at Hamburg, and during the war, this ardent advocate of judicial independence was not adverse to acting as the agent of Gauleiter Kauffmann. On 19 September 1939 Kauffmann, as Reichsstatthalter and defense commissioner, issued an order as follows:

“The president of the Hanseatic Court of Appeals, Senator Dr.
Rothenberger, is acting on my order and is entitled to demand
information in matters concerning the special courts and to
inspect documents of every kind. All administrative offices as
well as the offices of the NSDAP are requested to assist him in
his work.”

On 26 September 1939 Rothenberger, as president of the Hanseatic Court of Appeals, notified the Prosecutor General of Kauffmann’s order and requested that a copy of the indictment “in all politically important cases or cases which are of special interest to the public should be sent to him.” In a report to Schlegelberger of 11 May 1942 he spoke of the “crushing effect” of the Fuehrer’s speech of 26 April 1942 and of the feeling of consequent insecurity on the part of the judges, and said:

“I have therefore assumed responsibility for each verdict which
the judges discuss with me before passing it.”

In the same report he states that on 6 May 1942 he made arrangements with all senior police officers, senior SS, senior officers of the criminal police, of the Secret State Police, and of the SD “to the effect that every complaint about juridical measures taken by judges was to be referred to me before the police would take action (especially regarding execution of sentence).”

In June 1942 Rothenberger reported to the defendant Schlegelberger that he had made similar arrangements in Bremen with the Kreisleiter, president of the police, leader of the Secret State Police (Gestapo), and the leader of the SD. He reported to Schlegelberger:

“In view of the present situation, I am intensifying the
internal direction and control of jurisdiction which I have
considered to be my main task since 1933.”

On 7 May 1942 Rothenberger issued an order in which he stated his intention to inform himself prior to the proceedings on cases which are of political significance “or which involve the possibility of a certain conflict between formal law and the instinctive reactions of the people or National Socialist ideology.” He directed that reports be submitted to him which must be in sufficient detail in order, as he said, “to enable my deputy to judge the necessity of my intervention.”

By reference to his own words we have already set forth Rothenberger’s expressed convictions as to the duty of a judge as the “vassal” of the Fuehrer to decide cases as the Fuehrer would decide. The conclusion which we are compelled to draw from a great mass of evidence is not that Rothenberger objected to the exertion of influence upon the courts by Hitler, the Party leaders, or the Gestapo, but that he wished that influence to be channeled through him personally rather than directed in a more public way at each individual judge. On the one hand he established liaison with the Party officials and the police, and on the other he organized the system of guidance of the judges who were his subordinates in the Hamburg area. He testifies that he considered the system of conferences between judges and prosecutors before trial, during trial and sometimes after trial, but before the consultation of the judges, to be wrong, and states that he considered it more correct, in view of the situation, that such a discussion should take place a long time before the trial and not between individual judges and the prosecutor, “but on a higher level, namely, between the chiefs of the offices, so that there would be no possibility to exert an influence on the individual judge in any way.” Concerning his dictatorial attitude toward the other judges, Rothenberger testified: “Of course, guidance is guidance, and absolute and complete independence of the judge is possible only in normal conditions of peace, and we did not have these conditions after the Hitler speech.”

The guidance system instituted by the defendant Rothenberger was not limited to conferences concerning pending cases of political importance before trial. We are convinced from the evidence that he used his influence with the subordinate judges in his district to protect Party members who had been charged or convicted of crime, that on occasions he severely criticized judges for decisions rendered against Party officials, and on at least one occasion was instrumental in having a judge removed from his position because he had insisted upon proceeding with a criminal case against a Party official.

As further illustration of the character of control which was exercised by Rothenberger over the other judges in his district, reference is made to his letter of 7 May 1942 addressed to the judges in Hamburg and Bremen in which he announced that a conference would be held for the discussion of cases fixed for the following week. We quote (_NG-389, Pros. Ex. 76_):

“A few cues to matters which will come up will be given, file
numbers quoted, and comments made in a few key words.”

He especially required of the judges that they report to him concerning penal cases against Poles, Jews, and other foreigners, and “penal and civil cases in which persons are involved who are State or Party officials, or NSDAP functionaries, or who hold some other eminent position in public life.”

One will seek in vain for any simple, frank, or direct statement by Rothenberger relative to any of the abuses of the Nazi system. His real attitude can only be extracted from the ambiguities of his evasive language. We quote from the record of the report made by Rothenberger to the judges on 27 January 1942 (_NG-1106, Pros. Ex. 462_):

“With regard to the matter it had to be considered whether or
not any material claims made by the Jews could still be answered
in the affirmative. Concerning this question, it might, however,
be practical to maintain a certain reserve.”

In an early report to the Hamburg judges, Rothenberger discussed the opinion of the Ministry concerning the legal treatment of Jews. He stated that the fact that a debtor in a civil case is a Jew should as a rule be a reason for arresting him; that Jews may be heard as witnesses but extreme caution is to be exercised in weighing their testimony. He requested that no verdict should be passed in Hamburg when a condemnation was exclusively based on the testimony of a Jew, and that the judges be advised accordingly.

On 21 April 1943, as the result of a long period of inter-departmental discussions, a conference of the state secretaries was held. Rothenberger was at the time State Secretary in the Ministry of Justice and participated in the conference concerning the limitation of legal rights of Jews. Kaltenbrunner also participated. At this meeting consideration was given to drafts of a decree which had long been under discussion. Modifications were agreed upon and the result was the promulgation of the infamous 13th regulation under the Reich Citizenship Law which provided that criminal actions committed by Jews shall be punished by the police and that after the death of a Jew his property shall be confiscated.

We next consider Rothenberger’s activity concerning the deprivation of the rights of Jews in civil litigation. In the report of 5 January 1942 the defendant wrote:

“The lower courts do not grant to Jews the right to participate
in court proceedings in _forma pauperis_. The district
court suspended such a decision in one case. The refusal to
grant this right of participation in court proceedings in
_forma pauperis_ is in accordance with today’s legal
thinking. But since a direct legal basis is missing, the refusal
is unsuitable. We therefore think it urgently necessary that a
legal regulation or order is given on the basis of which the
rights of a pauper can be denied to a Jew.” (_Pros. Ex. 373,
NG-392, document book 5-D, p. 331._)

Notwithstanding his statement of 5 January to the effect that it would be unsuitable to deprive Jews of this right without a legal regulation, we find that on 27 January 1942 the report of a conference shows the following (_NG-1106, Pros. Ex. 462_):

“The senator reported that the question of the poor law
concerning Jews has gained significance again. With the district
court there were two cases pending. He requested that contacts
with the district court and with the local court judges be made
at once so that a uniform line is followed to the effect that
the Jews be denied the benefits of the poor law. It would be
entirely out of the question that Jews be granted the benefits
of the poor law subsequent to the present development. This
would apply especially to Jews who had been evacuated, but in
his opinion also to those who had not been evacuated.”

About this time a report concerning the claim of the Jewish plaintiff, Israel Prenzlau, came to the attention of the defendant Rothenberger. The Jew sought the right to proceed in _forma pauperis_. The report on the case contains the following statement by a Gau economic advisor, which is couched in the usual Nazi language of sinister ambiguity (_NG-589, Pros. Ex. 372_):

“In reply to your inquiry I state my point of view in detail.

“In a lawsuit between a German national and a Jew, I consider
the settling of a dispute by compromise settlement in court
inadmissible for political reasons. The German national,
as party in the lawsuit, pursuant to his clearly defined
conceptions of justice derived from his political schooling
since 1933, can expect that the court will decide the case by a
verdict, i.e., take a conclusive attitude toward the dispute in
hand. What is expected is a decision which was arrived at not
from purely legal points of view, as result of a legal train of
thought, but which is an expression to the way in which National
Socialist demands concerning the Jewish question are realized
by German administrators of justice. Evading this decision by a
compromise might mean encroaching upon the rights of a fellow
citizen in favor of a Jew. This kind of settlement would be in
contradiction to the sound sentiments of the people. I therefore
consider it inadmissible.”

The report shows that upon receipt of the opinion of the Gau economic advisor, “the defendants thereupon refused settlement with the plaintiff and now deny that they owe him anything.” The court which had jurisdiction of the Prenzlau case granted to the plaintiff the right to proceed in _forma pauperis_. On 13 February 1942 having before him the report of the Gau economic advisor, the defendant Rothenberger wrote to the president of the district court, Hamburg, as follows:

“I do not intend to approach the economic advisor of the Gau
for the time being, seeing from the documents that the ultimate
beneficiary of the claim, the son of the plaintiff, emigrated
in the year 1938 and his property, therefore, surely being
confiscated. I fail to understand why the court granted _forma
pauperis_ rights to the assignee, a Jew, without first
consulting the authority for sequestration of property.”

A note dated 24 February shows that Rothenberger had issued a directive to two judges of his district to the effect that every case involving the claim of the right of Jews to proceed in _forma pauperis_ must first be submitted to him. On 5 March 1942 a directive was issued from the Reich Ministry of Justice in substantial conformity with the recommendation of the defendant Rothenberger. It provided:

“In future the granting of rights of _forma pauperis_ to
Jews can only come into consideration if the carrying-out of the
lawsuit is in the common interest, viz, in disputes concerning
family rights (divorce in cases of mixed marriages, establishing
the descent).”

After the enactment of the foregoing ordinance, and on 7 May 1942, a courageous president of the district court at Hamburg wrote to Rothenberger stating that in his opinion the right of Jews to proceed in _forma pauperis_ would have to be granted. He added:

“I am convinced that it is in the common interest that an Aryan
cannot evade without further ado a just claim against him merely
for the reason that the court denies the _forma pauperis_
right to Jews.”

Notwithstanding this protest, and on 22 May 1942, the defendant Rothenberger, in reliance upon the ordinance which was based upon his recommendation, wrote to the president of the district court of Hamburg that he considered it “adequate that the _forma pauperis_ right granted to the plaintiff Prenzlau be canceled. Please have this taken into consideration by the court in a form which you deem appropriate.”

The foregoing narrative takes on additional significance when summarized. First, Rothenberger recommends to the Minister of Justice that it is desirable to deny to Jews the right to proceed in _forma pauperis_, but that such denial is inadmissible because there is no law to justify it. He recommends the passage of such a law. About 3 weeks later, no law having been passed, he recommends that the judges take a uniform line depriving the Jew of the right to proceed in _forma pauperis_. A specific case now arises in which the right was granted to a Jew, and the defendant Rothenberger receives veiled suggestions from the Gau economic advisor to the effect that defendants should not be allowed to compromise a case brought against them by a Jewish plaintiff because the court should decide against the Jew in any event on political grounds. Concerning this suggestion Rothenberger ventures no comment. The defendant in the Prenzlau case takes his cue from the advice of the economic advisor and denies liability; the court grants to the Jew the right to proceed in _forma pauperis_. Rothenberger criticizes this action, although the lower court had acted in strict conformity with the law. In March the awaited law excluding the Jew from the benefit of the poor-law is passed. In May, Rothenberger overrules the protest of a judge and directs the canceling of the order which was made by the lower court. This dictation by the defendant Rothenberger to other courts and judges of his district was not done in the course of a legal appeal from the lower court to the court over which he presided. It was done after the manner of a dictator directing an administrative inferior how to proceed.

Rothenberger not only participated in securing the enactment of a discriminatory law against Jews; he enforced it when enacted and, in the meantime, before its enactment, upon his own initiative he acted without authority of any law in denying to Jewish paupers the aid of the courts.

It is true that the denial to Jews of the right to proceed in civil litigation without advancement of costs appears to be a small matter compared to the extermination of Jews by the millions under other procedures. It is nevertheless a part of the government-organized plan for the persecution of the Jews, not only by murder and imprisonment but by depriving them of the means of livelihood and of equal rights in the courts of law.

The defendant Rothenberger testified that various judges reported to him “that they had heard rumors to the effect that everything was not quite all right in the concentration camps” and that they wished to inspect one. Accordingly, Rothenberger and the other judges visited the concentration camp at Neuengamme. He testified that they inquired about food conditions, accommodations, and the methods of work, and spoke to some inmates, and he asserts that they did not discover any abuses. This was in 1941. Again in 1942, according to his own testimony, the defendant visited Mauthausen concentration camp in company with Kaltenbrunner, who was later in charge of all concentration camps in Germany and has since suffered death by hanging. At Mauthausen concentration camp the defendant Rothenberger again inspected installations, conferred with inmates, and inquired as to the cause of detention of the inmates with whom he had talked. He states that from his spot checks he “could not find out that there was any case of a sentence being ‘corrected.’” Upon inquiry as to what the defendant meant by the “correction of sentences,” he answered:

“By correcting of a sentence we mean that when the court had
pronounced a sentence, for example, had condemned somebody to be
imprisoned for a term of 5 years--if the police now, after these
5 years had been served, if the police arrested this man and
put him into a concentration camp--this is only an example of a
correction. Or even if, and this is clearer, it happened that a
person was acquitted by a court, and in spite of that the police
put this man into a concentration camp. These are examples of
correction of sentences.”

The defendant stated that he did not observe and could not discover any abuse at Mauthausen. In this connection the testimony of defense witness Hartmann is of interest. Hartmann accompanied Dr. Rothenberger on his visit to Mauthausen concentration camp. He testified that rumors were current in Germany to the effect that conditions were not what they should be in the concentration camps. Hartmann testifies that they went about the camp freely and observed everything closely. On cross-examination by the Tribunal, Hartmann testified as follows:[670]

“Q. * * * When you visited Mauthausen concentration camp, you
knew, did you not, that the courts in the Ministry of Justice
never sentenced convicted criminals to a concentration camp? * *
*

“A. Yes.

“Q. Did Dr. Rothenberger know it?

“A. Yes.

“Q. Then you knew that these ten people that he talked with, and
the one or two that you talked with, were not there by reason of
any action on the part of the Ministry of Justice or the court,
but were there only by reason of action by the police or by the
Party, did you not?

“A. Yes. That was preventive custody undertaken by the police.”

The witness Hartmann testified further:

“Q. And they had already served their sentences as imposed by
court before they were taken into this custody of the police, is
that right?

“A. Yes. That is how I see it.

“Q. And at that time, these twelve people who had served their
sentences and had been taken over by the police--that met with
the approval of the defendant Dr. Rothenberger, as I understand
you?

“A. Well [we] did not approve the concentration camp as an
institution altogether, but first of all we wanted to achieve
this--that it would no longer happen that a defendant was
acquitted and then after acquittal the Gestapo arrested (him) in
front of the courtroom. * * * In those cases, too, he did not
approve the fact that these people were in a concentration camp
because we were of the opinion that only the administration of
justice should decide these questions of criminal law and nobody
else. But according to the power conditions within the State, as
they happened to exist, our interest was first of all to remove
the worst evils.”

Upon redirect examination by counsel for the defendant Rothenberger, defense witness Hartmann testified as follows:

“Q. Therefore, sometimes was the situation for you and Dr.
Rothenberger like this: that apparently you affirmed something
with a smiling face, something which as a human being you had to
disapprove of and reject?”

To this question the witness answered that Dr. Rothenberger “for reasons of power politics” had to accept the conditions though he did not approve them. After his inspection of Mauthausen concentration camp, Dr. Rothenberger took no action whatsoever with regard to the information which he had received.

It follows that the defendant Rothenberger, contrary to his sworn testimony, must have known that the inmates of the Mauthausen concentration camp were there by reason of the “correction of sentences” by the police, for the inmates were in the camp either without trial, or after acquittal, or after the expiration of their term of imprisonment.

It must be borne in mind that this inspection by the defendant Rothenberger was made at Mauthausen concentration camp, an institution which will go down in history as a human slaughter house and was made in company with the man who became the chief butcher.

We are compelled to conclude that Rothenberger was not candid in his testimony and that in denying knowledge of the institution of protective custody in its relationship with the concentration camps he classified himself as either a dupe or a knave. Nor can we believe that his trips to the camps were merely for pleasure or for general education. He also advised other judges to make like investigations. We concede that the concentration camps were not under the direct jurisdiction of the Reich Minister of Justice, but are unable to believe that an Under Secretary in the Ministry, who makes an official tour of inspection, is so feeble a person that he could not even raise his voice against the evil of which he certainly knew.

If the defendant Rothenberger disapproved of protective custody and the consequent employment of concentration camps, it must be because of a change in heart concerning which we have had no evidence. On 13 June 1941 Rothenberger wrote Secretary Freisler suggesting that many small cases were being tried by the Special Court and that this was not compatible with the importance of the court. He referred to minor offenses which came under the public enemy decree, “in which, however, protective custody will be requested by virtue of the offender’s past life and his character.” Again, he speaks of cases in which motion is made for the offender to be taken into protective custody.

On 5 January 1942 the defendant Rothenberger addressed a report on the general situation in the Hamburg area to the Reich Minister of Justice. From this document his attitude concerning the institution of protective custody may be ascertained. Concerning the “transfer to the public prosecutors of the right to decide about the duration of protective custody,” he said:

“In a certain connection with this problem is the transfer to
the public prosecutor’s office of the right to decide about the
duration of the protective custody. I regret that it is obvious
that the courts are more cautious and reserved than they were
previously in regard to the order of protective custody, because
the duration of the protective custody is not any more within
their control. This attitude of the courts cannot be approved,
but it is psychologically understandable; I am afraid, that
the reform effected the opposite of the intended more vigorous
practice in regard to protective custody.”

In February 1939 the defendant Rothenberger and the Chief Public Prosecutor reported to the Hamburg judges upon a conference which had been held in Berlin. The record of the joint report in which Rothenberger participated is as follows (_NG-629, Pros. Ex. 28_):

“A report was then made on the discussions on protective
custody. The ministry is of the opinion--also held here--that no
objection can be raised to protective custody as long as it is
purely protective, but that corrective measures, such as became
known in certain cases, must not become a habit.”

In conclusion, the evidence discloses a personality full of complexities, contradictions, and inner conflict. He was kind to many half-Jews, and occasionally publicly aided them, yet he was instrumental in denying them the rights to which every litigant is entitled. He fulminated publicly against the “Schwarze Korps” for attacking the courts, yet he reproached judges for administering justice against Party officials and unquestionably used his influence toward achieving discriminatory action favorable to high Party officials and unfavorable to Poles and Jews. He wrote learnedly in favor of an independent judiciary, yet he ruled the judges of Hamburg with an iron hand. He protested vehemently against the practice of Party officials and Gestapo officers who interfered with the judges in pending cases, but he made arrangements with the Gestapo, the SS, and the SD whereby they were to come to him with their political affairs and then he instituted “preview and review” of sentences with the judges who were his inferiors. He thought concentration camps wrong but concluded that they were not objectionable if third degree methods did not become a habit.

Rothenberger was not happy with his work in Berlin. In his farewell speech on leaving Hamburg, he exuberantly exclaimed that he had been “an uncrowned king” in Hamburg, but he would have us believe that he received a crown of thorns in Berlin. Soon he learned of the utter brutality of the Nazi system and the cynical wickedness of Thierack and Himmler, whom he considered his personal enemies. He could not stomach what he saw, and they could not stomach him. The evidence satisfies us that Rothenberger was deceived and abused by his superiors; that evidence was “framed” against him; and that he was ultimately removed, in part at least, because he was not sufficiently brutal to satisfy the demands of the hour. He was retired to the apparently quiet life of a notary in Hamburg, but even then we find that he was receiving some pay as an Under Secretary and was assisting Gauleiter Kauffmann in political matters in that city.

The defendant Rothenberger is guilty of taking a minor but consenting part in the Night and Fog program. He aided and abetted in the program of racial persecution, and notwithstanding his many protestations to the contrary he materially contributed toward the prostitution of the Ministry of Justice and the courts and their subordination to the arbitrary will of Hitler, the Party minions, and the police. He participated in the corruption and perversion of the judicial system. The defendant Rothenberger is guilty under counts two and three of the indictment.

_THE DEFENDANT LAUTZ_

The defendant Lautz from 20 September 1939 until the end of the war served as Chief Public Prosecutor at the People’s Court in Berlin. He joined the NSDAP in May 1933. During the period of his service the “higher officials” under his supervision increased from 25 to about 70. The office originally consisted of four departments which were later increased to five to correspond with the number of senates of the People’s Court. After the enlargement of the department there were five public prosecutors and one senior public prosecutor in each department. The defendants Barnickel and Rothaug were among the senior public prosecutors under the general supervision of the defendant Lautz. The crimes with which his office dealt were those over which the People’s Court had jurisdiction. Of particular interest here were the prosecutions for undermining the German defensive strength, high treason and treason, cases of attempted escape from the Reich by Poles and other foreigners, and NN cases.

A great number of prosecutions were brought under the decree of 17 August 1938 which provides that “Whoever * * * openly seeks to paralyze or undermine the will of the German people or an allied nation to self-assertion by bearing arms” should be punished by death. This was the law which effectively destroyed the right of free speech in Germany. The prosecutor’s office was required to handle approximately 1,500 cases a month involving charges of this type. Under supervision of the defendant Lautz all of these charges had to be examined and assigned for trial to the People’s Court in serious cases, or to other courts. In the cases which were assigned to the People’s Court for trial “there was always the possibility that the death sentence would be pronounced.”

The defendant Lautz instructed his subordinates that only those cases were to be retained for trial before the People’s Court in which it was “possible to assume full responsibility if the People’s Court senate pronounces the death sentence.”

Lautz did not shirk responsibility for the acts of his deputies. He testified that the signature of his deputy “meant, of course, that I assumed responsibility for that matter.”

In connection with the work of his department it was the duty of the defendant Lautz to sign all indictments, all suspensions of proceedings, and all reports to his superior, the Minister of Justice. This work assumed such proportions that it became necessary to delegate parts thereof to his subordinates, but the defendant Lautz required that important matters be reported directly to him. In partial explanation of his activities and motives in connection with his enforcement of the law against undermining the military efficiency of the nation, Lautz stated:

“Just as I think it is a good thing that no one today can claim
that this war was lost only through treason, I must also say
that I regret that because of this war and through these death
sentences many people, who were otherwise all right, had to lose
their lives.”

As an illustration of the type of case which was prosecuted under this law, we cite the case of the defendant who said to a woman: “Don’t you know that a woman who takes on work sends another German soldier to his death?” This offense was described by Lautz and Rothaug as a serious case of undermining the military efficiency of the nation. The office of the Chief Public Prosecutor of the People’s Court was vested with a wide discretion in connection with the assignment of cases to the various courts for trial. It will be recalled that the malicious acts law of 20 December 1934 provided for punishment of persons who made false or treacherous statements “fit to injure the welfare or prestige of the government and of the Reich”, etc. Under this law moderate punishments by imprisonment were authorized, whereas, under the law against undermining the defensive strength of the nation, the death penalty was mandatory. If the prosecutor sent the case for trial to the People’s Court on the charge of undermining, instead of sending it to a lower court for trial under the malicious acts law, he determined for all practical purposes the character of the punishment to be inflicted, and yet the evidence satisfies us that there was no rule by which the cases were classified and that the fate of the victims depended merely on the opinion of the prosecutor as to the seriousness of the words spoken.