that of adjusting the administration of justice from a legal point of view, and moreover I had prepared a corresponding draft for the administration of justice belonging to my sphere of activity. However, I did not want to take the initiative to make suggestions concerning matters which are beyond the sphere of my department.
The draft enclosed in your urgent letter includes all supreme authorities of the Reich, especially that of the Reich Minister and all Ministers whose sphere of work is connected with matters of administrative law. Whilst, as far as the sphere of activity of these Ministers is concerned I still adhere to the opinion that I should refrain from making suggestions on my part, I declare that I have no objections against an extension of my draft to matters of administrative law and to decisions by administrative authorities.
II. On the assumption that an extensive regulation of the situation of the Jews with regard to legal and administrative decisions is desired, it seems necessary to me that the question of the admissicility for a Jew to testify on oath be legally regulated, too, and this regulation had best be included in the same decree. Therefore, I furthermore suggest that the decree should provide that the Jew is not admissible to testify on oath. Thereby the taking of an oath or the furnishing of an affidavit by Jews is in general impossible.
In my opinion however, the fact that the Jew is not permitted to take an oath should not make the Jew have a better legal position than the person who is authorized to take an oath. Therefore I further suggest to include a regulation according to which the testimony of a Jew, which could have been made under oath, - if it had been given by a person who is permitted to take an oath should be treated like testimony given under oath as far as criminal cases are concerned.
My idea in this connection is that the chiefs of the supreme authorities of the Reich should order administratively that it should be pointed out to the Jew that he could be legally prosecuted if he continues an offense against his duty to give true testimony, but I do not propose to make this a prerequisite of being liable to punishment.
In my opinion comprehensive settlement of the problem requires furthermore the exclusion, for reasons of foreign policy, of all Jews from the regulations of this decree, who are citizens of a foreign nation. Therefore, under the assumption that the persons participating in the comprehensive solution of the problem and those supreme authorities of the Reich which are in charge of specialized sectors agree, I would suggest the following wording to the decree: "I shall not read the wording.
I now turn to page 45, which is 88 of the German, and I read, "Signed Schlegelberger."
I now turn to page 65 of the English text, which is page 109 of the German. This is a "National Socialist German Labor Party; Party Chancellory, The Head of the Party Chancellory, Fuehrer's Headquarters, 9 September 1942; to the Minister of Justice; Re: Limitation of legal appeal for Jews.
"The limitation for legal appeal for Jews proposed by you extends in the sphere of Court decisions only to the legal appeal in a limited sense - that is to say to appeal, revision and complaint. This regulation does not represent a comprehensive solution of the problem, since the Jews will still be given the possibility of making use of legal aids in a wider sense.
"The considerations which are decisive for your draft also apply to almost all cases of "legal aids".
In criminal cases this applies above all to objections against penal rulings and to pleas for resumption of proceedings. In the sphere of Civil Law it would apply to remander, I believe it should read; remander of cost and execution matters, objections to execution orders and judgments by default as well as to nullity and restitutions suits."
Also, a limitation of tho admissibility of suits protesting against executions and suits filed by a third party will have to be taken into consideration, as in these cases too the result will be in legal aid against a judicial decision. I think it necessary to include all those cases too into the regulation.
I further request you to include into the draft a regulation declaring inadmissible the declining of a judge by a Jew.
I have no objections against the provisions of the draft relative to the disqualification of Jews to take an oath.
Heil Hitler!
(signed) M. Bermann
MR. LAFOLLETTE: I now turn back to page 55 of the English text which is page 98 of the German. This is on the 8 March 1943:
The Chief of the Security Police and the SD TO The Reich Minister of the Interior Party member Dr. FRICK My dear Reich Minister:
At my requests I have been informed by department I that you have stopped the passing of the ordinance concerning the legal restrictions to be imposed on Jews, as in view of the development of the Jewish question, you no longer consider this ordinance necessary. May I therefore point out the following views taken by the Security Police, which are in favor of an immediate passing of the ordinance."
MR. LAFOLLETTE: I now turn to the next page 56, which is page 99 of the German text:
"3. The provision according to which the application of criminal law against Jews is transferred from the judicial authorities to the police, is based on an agreement between the Reich sfuehrer SS and the Reich Minister of Justice, Dr. THIERACK.
This agreement has been approved by the Fuehrer. For if it is to be put into practice it should be embodied in the form of a law, as the present competence of justice, which is based on criminal procedure, can only be modified by a legal provision."
Heil Hitler!
Yours obediently Dr. WALTENBRUNNER"
MR. LAFOLLETTE: I would now like to turn to pages 57 and 58 of the English which are on pages 100 to 101 of the German. This is a note:
Secretary of State STUCKART asked me over the telephone to obtain the opinion of the Reich Minister and Chief of the Reich Chancellery as to the draught of the ordinance which had been sent him with the accompanying letter of April 3rd. As Secretary of State STUCKART informed me, the Reich Minister of the Interior himself has his doubts as to whether the ordinance is still necessary. When STUCKART approached the party chancery on the question, Reichsleiter Bermann suggested that he should obtain the opinion of the Reich Minister and Chief of the Reich Chancery.
On 5 April I discussed the affair with Secretary of State KLOPFER. The latter is of the same opinion as myself, that with the exception, perhaps, of Articles 6 and 7 of the draught, the ordinance can be dispensed with. As regards Article 7 of the draught, Secretary of State KLOPFER took my point of view that the possibility must be considered of directing the heritage of deceased Jews either in part or in its totality to their non-Jewish relatives.
The Reich Minister, to whom I reported on 6 April, is of the opinion that we should repair as far as possible from any settlement of the matter by an ordinance.
In order to help on the affair I came to an agreement with Secretary of State KLOPFER and suggested to Secretary of State STUCKART that the question of the further consideration of the draught should be raised at a discussion in which, in addition to myself and him, Secretary of State KLOPFER and Secretary of State ROTHENBERGER and the Chief of the Security Police KALTENBRUNNER should take part. Secretary of State STUCKART agreed to this and suggested that the conference should take place on Wednesday, 14 April, 11 o' clock."
MR. LAFOLLETTE : I now turn to page 59 which is 102 of the German:
"The State Secretary conference which was suggested here about the draft which was at that time completed in the Reich Ministry of the Interior of an Order concerning the Limitation of the legal Rights of Jews, took place today in the office of State Secretary STUCKART. State Secretary ROTHENBURGER, State Secretary KLOPFEIR, SS Gruppenfuehrer KALTENBRUNNER and I were present as well as State Secretary STUCKART.
The discussion showed that only art. 6 and 7 of the provisions of the draft of the order are considered necessary, in this connection art. 7 is to be supplemented by a regulation which makes possible, in the case of a confiscation of property, a settlement in favor of non-Jewish heirs and legal defendants.
It was furthermore considered suitable to have the regulation issued as a supplementary ordinance to the Reich. Citizens Law.
The regulation would accordingly approximately take the form as shown in appendix 11."
MR. LAFOLLETTE: Appendix 11. Those follow in pages 60 and 61. I shall not read them but I think the reading would be helpful. Is defense counsel finished with the exhibit? Prosecution offers to introduce into evidence Prosecution Exhibit No. 204, which is Document NG-151:
THE PRESIDENT: The document will be received in evidence.
MR LAFOLLETTE: I now turn to page 71 of the English book which is page, either 114 or page 114-A of the German book. I am not sure whether there is an "A" there or not. This is Document NG-283 which, when introduced , would be Exhibit NO. 205. This exhibit is very short. The document reads:
"NATIONAL SOCIALIST GERMAN WORKERS' PARTY "11 September 1943.
That's when it was received at the Reich Ministry of Justice. It was dated at the Party Chancery, Munich on the 7 September 1943. I am not going to read the various notations on this document but I will read the substance where it starts "Concerns" followed by a colon:
"Criminal proceedings against foreign juveniles. Your letter of 5 August 1943.
"Your letter of 5 August 1943 is agreed to. No objections are raised to applying the German Criminal Code for Juvenile to foreign Juveniles unless they are Jewish, Polish and Gypsies. Regarding juvenile gypsies and those of mixed gypsies descent you are asked to see to it that simultaneously with the earning into force of the now law concerning Reich juveniles, a special regulation will come into effect which will prevent the German criminal code for juveniles from applying to gypsies and these of gypsy descent merely because definite regulation is lacking.
"Heil Hitler "By order:
(signed) Klemm."
MR. LAFOLLETTE: The prosecution offers in evidence Exhibit 205 which is Document NG-283.
THE PRESIDENT: The document will be received in evidence. The time has arrived for our usual morning recess. We will taka a fifteen minute recess at this time.
(a recess was taken)
THE MARSHAL: The Tribunal is again in session.
MR. LA FOLLETTE: I turn now to Page 75 of the English book, which is Page 117 to 118 of the German book, Document NG-686. I read at the top of the page:
"Special Court for the Region of the Court of appeals Nuremberg, at the District Court Nuremberg-Fuerth, Nuremberg, 20 January 1943. Received 20 January 1943, Prosecution, Nuremberg Fuerth. 1 b S.C. (Special Court) 2051042.
"To the Senior Prosecutor of the District Court Nuremberg-Fuerth, Nuremberg. Subject: Important case, here: Kleinlein, Emil, single, painter, of Fuerth and one other defendant. Charged with a crime against Paragraph 2 of the Decree against Public Enemies."
I now turn to Page 76, which is Page 118 in the German book, I read the last paragraph -- the last sentence, rather.
"I have set the trial for Monday, 25 January 1943, 8:30 A.M. , Court Room 600. Signature, Rothaug, District Court Justice."
DR. KOESEL, do you care to look at the signature?
DR. KOESSL (Counsel for Defendant Rothaug): The signature is not very clearly legible. I admit that it is probably the signature of the defendant Rothaug. However, I don't like to state so definitely, and therefore I reserve the right for my own presentation of evidence to make some declarations to the contrary.
MR. LA FOLLETTE: That is entirely agreeable. The Prose Prosecution offers Exhibit No. 206, Document NG-688, into evidence.
THE PRESIDENT: The document will he received in evidence.
MR. LA FOLLETTE: I next turn to Page 77 of the English book, which - my cross numbering ends here, because this document had to be prepared and added later into the book.
It would probably, or should be Page 119 in the German book. The Court will also notice that the first page is marked 77, and that thereafter my paging in the English book is separately numbered 1,2,3,4,5, up to and through 29.
THE PRESIDENT: It is narked both ways in the books that that are on the bench.
MR. LA FOLLETTE: Mine was early and I have no complete document book paging number.
THE PRESIDENT: I take it you are referring to NG 751.
MR. LA FOLLETTE: 751, yes, Your Honor. I will not read too extensively. In any event I will go slowly so that we may find the German pages. At Page 77 I read tho beginning with the words:
"Minutes of the public session of the Special Court for the District of the Appellate Court of Nuremberg at the District Court of Nuremberg-Fuerth on Monday, 25 January 1943.
"Present l) The Presiding Judge: Landesgerichtsdirektor Dr. Rothaug. 2) The Associate Judges: Landesgerichtsraete Dr. Gross and Groben. 3) For the Public Prosecution at the Special Court: Public Prosecutor Markl. 4) The Official Registrar of the Office: Wittle, Senior judicial secretary."
I now turn to Page 4 of the document numbering, which would probably be Page 80 of the English book. I assume no one will object to my interpolating that this is the process dealing with the trial of Emil Kleinlein and Pauline Schaller, nee Heller. Just a very short paragraph about the center of the English page. I believe the interpreter can follow me even if he doesn't have it.
"When the defendants were asked whether they had anything to state yet for their defense they declared themselves in ac 1505 accord with the statements of their defense counsels.
"The defendants had the last word."
I now turn to the next page which would be 81. That is the way it is numbered.
"The costs of the proceedings have to be borne by the defendants. The Presiding Judge, Rothaug, Director of the District Court, The Official Registrar, Signature Wittl, Senior Secretary of Justice End 1655 hours."
Below that, "The sentence is final, Nuernberg, 9 February 1943, The Official Registrar of the office of the District Court Section for Criminal Cases."
I now turn to pages 19 and 20 of the document. This is the second page of the petition for pardon prepared by Dr. Ernst Escher who was counsel for the defendant Keinlein.
I start with the paragraph which begins "However this may be -- " It is the second paragraph from the top of page 19. It reads as follows:
"However this may be, the one fact remains clearly, namely, that the condemned is an epileptic now and that before, be became an epileptic, he was a decent person who never committed offense, while after the settingin of the epilepsy, still during his military service he was in tho first place sentenced to a prison term on a charge of falsifying documents. He only partly served this term of imprisonment and then was discharged from military service by reason of his epilepsy. Only afterwards he committed crimes, as established in the trial and on which the sentence is based.
"The course of events does not permit any other conclusion than that a change in the personality of the condemned has taken place for which he cannot be hold responsible, as it has been caused by epilepsy.
"The psychiatrist who expressed his expert opinion on the condemned man, has therefore quite rightly recommended a lenient judgment of the defendant in spite of his declining article 51. He established that epilepsy represents a heavy mental burden for a young person, which might create a state of mind entirely unknown to a healthy person and which also could bring about a complete change of tho patient's mental outlook.
The expert also maintained this point of view during the main trial.
"The Special Court did not give consideration to this point of view in their findings on which the sentence was based.
"This change in the personality of the defendant, stated by the expert, might also make disputable the defendant's classification as public enemy. I make reference to the decision reached by the Reich Court RGSt. Volume 76, page 88, 90, the reasoning of which seems applicable to this case. In the verbally stated reasons for the verdict the court did not consider this point. The written statement of reasons --" I think that should be "No written statement of reasons underlying the sentences has been made available for me yet."
I turn now to what are pages 24 and 24A of the document. This is the matter which apparently disposes of the plea for pardon.
Concerning: Criminal proceedings against Emil KLEINLEIN born on 2 April 1922 in Fuerth, single, painter in Fuerth and against Pauline SCHILLER, nee HEILER, born on 12 November 1901 in Fuerth, worker's wife in Fuerth.
Reference: Report of the Nuernberg special Court concerning the question of granting a pardon.
The increased spreading of criminal symptoms of the kind submitted requires the execution of the death sentence.
Nuernberg, 25 January 1943.
The Special Court.
ROTHAUG Dr. GROS GROBEN I agree to that.
Nuernberg, 29 January 1943 The presiding Judge of the Special Court ROTHAUG (signature) Page 24A is the notice on 23 March 1943 that the two defendants were executed.
I offer to introduce into evidence, as Prosecution's Exhibit Number 207, Document NG-751.
THE PRESIDENT: The Document will be received in evidence.
MR. LaFOLLETTE: I may say for Your Honors that there is a notation in my book that we have not yet received the exhibit for Document NG-279. I want to check Document NG-657 further before I consider offering it into evidence. Otherwise, together with the documents introduced by Mr. Wooleyhan, yesterday, that disposes of Book 3-H.
I would like to proceed with Book 3-K, if I may. I understand it has been delivered by Colonel Nesbitt.
I wish to state for the benefit of Dr. Briefer that the documents in this book, as he will note, deal almost exclusively with the Defendant Cuhorst.
THE PRESIDENT: You say it pertains to the Defendant Oeschey?
MR. LaFOLLETTE: I said the Defendant Cuhorst. Page 4 of the English, which is page 5 and 6 of the German text is an affidavit of Dr. Oskar Ruisinger. If introduced into evidence, it will be Prosecution's Exhibit Number 208.
"In 1942-43. being, officially appointed substitute of the lawyer Dr. Fischinger, Stuttgart, I have occasionally acted as defense counsel before the Special Court, Sondergericht in Stuttgart. About two or three times the former Senatspraesident Cuhorst presided over these proceedings."
I shall not read any more of this document, but I offer into evidence, at this time, Exhibit 208.
THE PRESIDENT: It will be received.
MR. LaFOLLETTE: I next turn to page five of the English Book which is pages seven to thirteen of the German Book, in NG 485, which, if introduced, will be Exhibit No. 209. I begin reading at the top of the page:
"I, Eberhard Schwarz, assessor, domiciled in Stuttgart, Alexanderstrasse 109, herewith state under oath:"
"In the course of my juridical training I was transferred to the Prosecutor's Office in Stuttgart in November 1941. Inasmuch as it had been my intention already at that time to become a lawyer, so as to devote myself primarily to the field of penal law after having passed the second state examination, I regularly attended penal law hearings before Stuttgart courts from that time on to the extent that my official duties so permitted, penal law hearings before Stuttgart courts. Until that time I knew nothing about the existence of the so-called special courts."
I now drop down to what is the third paragraph of the affidavit, and it is on page 8 of the German Book -- I think at the top, probably. I now go to the bottom of the page 5 which would be the paragraph after the next in the German.
"At the time of my transfer to Stuttgart the official presiding over the special court located there was Senate President Hermann Cuhorst. His deputy was Director Bohm of the Landgericht."
"It was typical for Cuhorst's concept of the administration of law that even in important cases of a different pattern he merely directed one chief proceedings on the basis of the indictment submitted to him by the Public Prosecutor and he evidently did not study beforehand the entire material for the trial."
"The second, very striking characteristic was that he tried even big cases with astounding rapidity and especially failed to listen to evidence which would exonerate the defendant, refusing the respective applications for evidence of the defense counsel as unnecessary. His conduct of trials was absolutely authoritarian with the sole aim of bringing about the announcement of the verdict of a case once started at the earliest possible moment."
I jump down to the third paragraph following the one that I read which may be on page 9 -- I am not sure -- of the Germans'. I am still on page 6 of the English.
"One case is known to me in which Cuhorst asked the defense counsel, Dr. Ruisinger in Stuttgart into the conference room before the beginning of the proceedings in chief, and that he announced to him there he would sentence the two defendants for whom he acted as counsel to death, and that consequently, lengthy deliverations by Dr. Ruisinger were superfluous and that he did not wish to have them."
The paragraph after the next:
"Perhaps the most significant expression for the tendency of the special court was reflected in a remark reported to me where Cuhorst was to have said to his colleagues of the bench when leaving the conference room to enter the courtroom: "Voila, gentlemen, let us go to the abatoir." The verdict which was to follow was a death sentence."
I would like to go near the bottom of page 7, third paragraph from the bottom of that page in the English book, and probably the last or next to last paragraph on page 10 of the German.
"Another particularly outstanding case to be mentioned was the trial of Friedrich ECKSTEIN, Robert WINTER, and others, which took place on 9 November 1942, with CUHORST presiding."
"The defendants were sentenced to death as dangerous professional criminals on the charge of having committed several thefts of bicycles."
"Since in the case most of these defendants were gypsies this trial may be termed an extermination process. The defendant Robert WINTER had a criminal record which listed two previous sentences, one a five-day prison term and the other time a fine of RM 10, - nevertheless he was sentenced to death as a professional criminal and an enemy of the people."
"In the main proceedings CUHORST encountered considerable difficulty in that the defendants considerably modified the statements they had made before the Criminal Police. However, the court paid no attention to the new statements but considered the guilt of all defendants as proven."
"After announcement of the death penalty the defense counsel asked for reopening of the case in the legally prescribed form and offering admission of evidence.
"At that time the Criminal Divisional Court at the district court of Stuttgart was competent for the reopening of the trial."
"This court also was ready to resume the case and ruled that the execution of the death penalty be postpones because on the strength of new arguments produced by the defense counsel the sentence was considered not tenable."
"Through a new regulation the authority for conducting hearings for the reopening of a case was at that time transfered to the special court itself so that CUHORST who was highly indignant about the fact that the Criminal Division had set aside his verdict, was thus given the possibility to refuse application for reopening of the trial and to have the verdict executed."
I turn to page 9 of the English which is apparently the first paragraph at the top of page 13 of the German -- or completely at the bottom of page 12 of the German.
"In the beginning when I listened to proceedings, in the special court, cases which ended with death penalties were frequently tried against Poles, some of them still juveniles - because if illegal relations with German women."
"Cuhorst presided also in such cases."
"In most instances such cases took at the utmost one hour from the beginning of the hearing until announcement of the verdict. Generally speaking, it should be added, that for the special court under Cuhorst the short time for consultations was also typical.
Death sentences were frequently announced after a consultation of but a few minutes."
The Prosecution now offers to introduce into evidence as Exhibit No. 209, Document NG 485.
THE PRESIDENT: The document will be admitted into evidence.
MR. LaFOLLETTE: I next turn to page 11 of the English Book which is pages 14-20 of the German. This will be Exhibit 210, when and if received. Beginning at the top of the page:
"I, Dr. Willi SCHOECK, attorney-at-law, Stuttgart-O, Payerstr. 10, state herewith under oath:"
"During the War, I acted often in the capacity of defense counsel before the Special Court and the Criminal Senate of the Court of Appeals in Stuttgart and had in many cases the occasion to observe the Senate president, Hermann CUHORST in his activity as president of these ways and methods of conducting a case, his attitude towards defense counsel and defendants and his general policy. In this respect I give the following details:
"I know Cuhorst from his whole professional activity in Stuttgart. There he was first a justice of the peace whose juristic knowledge was generally judged very modest. His ascension began in 1933. That year he became government councilor, soon thereafter Senate president, a position which he would never have attained under normal conditions. It is significant that when Cuhorst became Senate president, the president of the Court of Appeals in Stuttgart at the time, Hess, asked to be pensioned off as an expression of protest. Soon afterwards, and doubtlessly for political motives, Cuhorst took over the presidency of the Special Court and later on of the First Criminal Senate. Administratively he was completely in charge of both courts and this being so he would let no one have anything to say to him. He alone decided which cases he wanted to preside over and took for himself all those cases that were either effective for political propaganda or likely to be so and all the "sensational cases," particularly, and to a far-reaching extent, most of the cases involving the death penalty.
In all other cases he decided which of his deputies should assume the presidency. It was he who determined the time of the summons, he who scheduled the innumerable trips, he who decided which cases were to be tried in Stuttgart and which in the locality where the offense was committed or at the place of residence of the offender, and the pains he took to have every major case all ever the country, especially those of a political character, tried under his presidency had the result that in the later years of his activity, Cuhorst was more often outside Stuttgart."
His behavior was essentially self-assertive and forceful and it was impossible to sway him. His respect for human life was certainly extremely small and I am convinced that none of the innumerable death sentences he pronounced did affect him. When moreover foreigners were involved, he had still less respect for human life as expressed several times by remarks which I heard along with other people, the terns of which I cannot remember, of course."
Turning to page 13, which is still probably on page 16 of the German book, I begin at the first sentence in the English book from the top of the page, which reads: "I have myself repeatedly made representations to Cuhorst in this respect and requested adjournments, which were categorically refused in almost every case. I asked to keep the documents some time longer and this was many times refused on the ground that he must look at the documents himself before the trial and I have frequently been answered to the effect that everything was quite clear in the indictment, that everything was there all right and that in this case there was no need at all to prepare the defense. That was actually how the defense was restricted to such a considerable extent."
I now go to the next paragraph, which will be on page 17 of the German and 13 of the English, and I read: "The defendant himself, to whom Cuhorst only gave a defense counsel when the law so ordered, hardly ever had any opportunity to speak. The indictment was put before him and he was expected to acquiesce to its contents. If he failed to do so, he was either told not to lie to the tribunal in such a manner or screamed at or threatened with a heavier penalty for lying or ridiculed with sarcastic remarks (especially when there was a numerous public), or again the defendant was denied a proper hearing and told that everybody already knew what he had to say, that it indeed had already been disclosed by the documents."
I turn now to page 14 of the English text, and it would be found at the botton of page 18, I would think, of the German text. It is the case Jatzek. "The case Jatzek. Proceedings took place before the Crimi nal Senate.