“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):