Here, I wish to convince the Court that offenses of the latter kind, if they ever did happen within the legal sphere could and should only be known to the immediate participants but not to persons who held positions like the defendant Rothaug.
In the concrete reflection on the relationship to the law of the position of judges and likewise prosecutors, it is of decisive importance to elucidate in public law that the German judge, under any regime, had merely to examine whether a law had been announced in accordance with rules and regulations whereas an examination from other points of view was outside his jurisdiction. In this context it is further necessary to elucidate the significance and import of the judge being subject to the law and the meaning of a sentence in the sense of German public law especially in relationship to the legislative and executive power in an authoritarian state, thus to the governing power.
Here we cannot omit to clarify the basic legal principles and corresponding regulations which determine this relationship or to prove the practical application based on files. Thus, the question of the judge’s subjection to the law calls for a clarification of the consequences on his task resulting thereof. It necessitates the recognition of the law as a form of expression of justice, as part of the legal system and as immediate emanation of the ruling state doctrine at any given time, as well as the recognition of the judge’s actual position in this legal system. Therefore, it is also necessary to show in a condensed form the general basis and principle of the legal doctrine which since 1933 was decisive for the German judge in establishing the intentions of the law in a concrete individual case. The accusations which have been made in general or in individual cases concerning Rothaug’s method of handling proceedings or which have been connected with such proceedings become meaningless or lose in importance if their explanation is tackled in general from the angle of the correct basic procedure regulations or from the available records of individual proceedings. This leads, as a matter of course, to a basic discussion of the individual cases which have been particularly stressed by the prosecution, and which lie in the direction of the prosecution’s main thrust. No one knows better than the judge the human inadequacy and fallibility because by the very nature of his profession he deals with that aspect of life. Thus, he would be the last to believe himself immune from human error, least of all at a time of intellectual revolution and under the effect of the very highest wartime pressure. Nevertheless, I beg the Tribunal not to think me presumptuous if I try to prove that the sentences pronounced by the Special Court at Nuernberg were in keeping with the basic principles of jurisdiction of the Reich courts, and that among thousands of cases only very rarely one has been successfully contested or otherwise amended.
In this connection, one could discuss the outward development of the judgment and all those legal questions allegedly discussed in individual cases or in general in Rothaug’s circle during the course of 6 years.
The submitted records of individual proceedings provide plenty of opportunity to form an opinion on all individual questions thrown up by this trial especially on the aim of judicial activity, the sentence in its relationship to the requirements of the proceedings and its assailability in the interest of legal security, from which it will clearly emerge that the sentence, even that of the Special Court, was only an intermediate and by no means the final stage of the work of ascertaining justice either when finding the defendant guilty or when pronouncing the sentence. Thereby it may be possible too, to clear up the linguistically unfortunate term of “psychological producing of evidence” which has found its way into this trial. Thus, the legal and psychological task of the presiding judge in accordance with German criminal law will have to be explained, and it will have to be shown how Rothaug confronted his task, solved it in the practical legal procedure, and which objections he had to face in connection with the results of his work by departments which in the course of their own duties had to examine, control and, if necessary, correct.
Furthermore, it will be my task to prove that in Rothaug’s official working sphere without exception all defendants without consideration of nationality, national origin, or race, were granted the same legal guaranties as any German according to German criminal law, thus that no case was treated as an exception to the general rule, that this was also done in all proceedings against Poles, who apart from one outstanding case bearing a special character, were the only foreigners against whom Rothaug proceeded.
This, generally and in particular, touches upon the problem which determines the judge’s and the prosecutor’s position to the legislation for Poles from an objective legal point of view, of which have to be discussed the actual and legal basis and aspects from and through which the German judge and prosecutor whether in the North, South, East, or West, had to view matters under the spell of the German legal doctrine.
Here the greatest importance has to be attached to the kind of offense in question, the place of the crime and last, but not least, the question whether these Poles had really been deported and had not voluntarily, accepting certain conditions, placed themselves at the disposal of the German war power.
In this context, we cannot omit to discuss the principles which the highest judicial authorities have pronounced in connection with this whole complex. Here I must leave the justification of the legislation as such to others who are responsible for it.
To this, from a psychological viewpoint, belongs the discussion of Rothaug’s actual basic attitude toward the Jewish problem in order to do away with all insinuations which have willfully and on purpose been made during this trial by persons who seem to have cause to stress and demonstrate their innocence in this connection by calling “catch the thief.”