For that purpose and as far as I can see, the pamphlet was printed purely for propaganda purposes.
Q. Do you know whether the Party demanded to have the sentence published?
A. I don't know that.
Q. Do you know whether the verdict was contested by the nullity plea?
A. The Reich Ministry of Justice had the verdict contested through the Oberreichsanwalt.
Q. What was the result of the new trial?
A. At the new trial the result was eight years penitentiary.
Q. And at the first hearing?
A. Three years imprisonment.
Q. In your affidavit you mentioned what you described as untenable the publicity of the trials. When he case was retried before the special court at Frankfurt, was the public excluded?
A. I don't know.
Q. Can you tell us anything as to whether in the case of Wassner there was a greater punishment pronounced in the Gesamtstrafe because the defendant had previously been sentenced by another court for another offense?
A. I did not understand your question.
Q. In your affidavit you call the punishment that was pronounced on Wassner as very severe. Do you know whether in that case the punishment which you mentioned in your affidavit included another offense for which a sentence had already been passed? In fact, wasn't it a case of two concurrent sentences?
A. I remember that penitentiary sentence included a sentence for an offense against the Malicious Acts Law. As concerns another sentence which might have been included in a concurrent sentence, I don't remember that.
Q. Is it correct that the special court at Freiburg had already tried this man?
A. I would be grateful if you would tell me a little more as to what was the case concerned with at Freiburg.
Q. It was a crime against the economic laws.
A. I know that in the case of Plattmann there had been an indictment for illegal slaughtering, but as far as I remember, I myself did not submit an indictment under that regulation under paragraph 154 of the Penal Code. Whether another sentence had been passed on Plattmann, I don't remember.
Q. Have you recently seen the Verdict?
A. No.
Q. Your affidavit was written in Nurnberg on the 25th of February. Before you deposed that affidavit, were certain definite questions put to you?
A. Yes.
Q. Did you write that affidavit in a manner such as you desired it yourself?
A. Various formulations, various phrasings in the affidavit are not my own but are those of the examiner. That is evident from the form of the statement.
Q. I did not see that. Why is that evident from the form?
A. The affidavit concerns various phrases which betray something of American German.
Q. Could you, perhaps, give a few examples as to the places in the affidavit where such phrasings in the American-German style have occurred?
THE PRESIDENT: That would seem to be-
MR. WOOLEYHAN: May it please the Court, if Counsel can point or direct the witness' attention to any particular phrase and ask him if it is either his own or one that he has sworn to, we won't object to this line of questioning. Otherwise, we object to it strenously.
THE PRESIDENT: The witness has answered that the phrasing is not always his own. It seems to me that a number of questions could go farther than that with this witness.
BY DR. MANDRY:
Q. For example where it says: "It was extremely dangerous in any sphere to contradict Cuhorst," Do you know anything as to whether his associate judges or the public prosecutor or the defense counsel before Cuhorst found it impossible to speak their own minds?
A. I believe that the associate judges of the special court could hold different opinions and express those opinions. On the other hand, I know that Cuhorst -- that it was difficult to persuade him to give up an opinion once he had arrived at it.
Q. How are we to interpret it? "It was extremely dangerous to oppose him in any sphere."
A. It was very easy to get a reprimand from Cuhorst when one opposed him.
Q. Is that dangerous then?
A. In that, yes. That was the way in which I meant it.
Q. Only a danger of reprimand?
A. Yes.
Q. In your affidavit you say also that Cuhorst was a fanatic traveler. Is that your own expression or do you mean that he became notorious through his traveling and that he mainly became feared through this traveling? Is that your own version?
A. I don't believe that that was my own phrasing, although the essence of the matter is correct.
MR. WOLLEYHAN: May it please the Court, this could conceivably continue for several generations. Now this is a sworn affidavit. The affiant has sworn that everything therein is to his best knowledge and belief the facts. Now whether or not the use of a phrase or the structure of the sentence is the way that he might have done it we submit is immaterial. The point is it is a sworn statement. We, therefore, object to this further line of questioning.
THE PRESIDENT: It should further be said that the witness has said although the phrasing is not his own, the essence of the statement is correct. Why should, there by any questioning as to the form of the sentence when the witness stands by what has been stated in essence?
We think that has gone quite far enough.
Q. In your affidavit it says that the Fussen case, that that case was in any case rigged up as a show trial. Is that your own expression or did it originate from the examiner?
A. I don't remember that but it's correct that this case was made into a sensational affair.
THE PRESIDENT: Mr. Defense Counsel, we feel that when we make a ruling that that doesn't mean much to you. We inform you that the ruling means something and we want you to observe it.
Q. You have sworn an oath to the effect that you were under no duress when you deposited that affidavit. I should like to ask you whether when you deposited that affidavit you did in any way feel intimidated?
A. Naturally I found it difficult concerning the judge with whom I collaborated formerly -
MR. WOOLEYHAN: One moment. May it please the Court, we further object to this question. The last paragraph of the affidavit states under oath that he wasn't intimidated.
THE PRESIDENT: We ask that the question be repeated.
Q. I asked whether this affidavit was deposited without duress or whether when you deposited it you were intimidated?
MR. WOOLEYHAN: I repeat my objection.
THE PRESIDENT: He may reply.
Q. If I understood correctly you have been asked to reply to the question.
JUDGE BRAND: Mr. Witness, in connection with your answer indicate if you think that you were intimidated, and by whom you think you were intimidated, if anyone.
A. I believe that during the first days of my examination, the whole of which lasted seven days, the examiner, Mr. Einstein, did place me under certain pressure to make statements at all. Of course, I found it very difficult to make any statements on this matter. Finally at the end of my statement I added the sentence that I reproached myself for not having taken adequate steps against the particular thing that happened in those days. After long negotiations I had to overcome my resistance.
Q. Today during the noon recess did anybody make a remark to you or did anyone give you the impression that your testimony this morning concerning -- was different from the terms and the tenor of your affidavit?
A. It is correct that during the noon recess I did meet Mr. Einstein and that Mr. Einstein told me he had not been very satisfied with my testimony.
Q. Is this correct: that during your interrogation by Mr. Einstein in Nurnberg you were under the impression that if you had not answered Mr. Einstein's questions you would have suffered -- you might have suffered arrest or that you might be at a disadvantage in your denazification proceedings?
A. It is correct that during the first days I was under that impression -- that I might have such a disadvantage also in regard to the denazification proceedings.
Q. Were you always alone with Mr. Einstein during the interrogations or were other persons near by?
A. Among others Landsgerichtsrat Dr. Ferber was present. Also Dr. Dorfmueller, a Public Prosecutor, who during the first few days was interrogated together with me. That is to say, we were interrogated alternately. Dr. Doebig was also present, in particular when legal questions were concerned and when I often had violent disputes or arguments with Mr. Einstein it was my impression that he used Dr. Ferber as a legal expert.
Q. Did one of the witnesses say anything to you about the interrogation by Mr. Einstein? Did anybody make any complaints in the sense that they felt themselves intimidated? That they were afraid that disadvantages may accure to them?
A. I dot quite understand what senses you are talking about.
Q. Mr. Dorfmueller and Mr. Ferber and the third gentleman whom you named or did you, yourself, concerning Mr. Einstein's interrogation methos -- did you make any complaint?
A. That was right. First of all Herr Faber and Mr. Doebig said anything to me to the effect that they themselves felt themselves afraid nor did Herr Dorfmueller do so. I know of Dorfmueller, that he and, Rothaug, the Presiding Judge of the Special Court of Nurnberg, that his relationship to him were always very bad. Furthermore, he wrote his statement essentially himself and deposited it like that.
Q. Concerning the interrogation tactics which were adopted towards you, did you consider them correct?
A. No.
Q. Can you explain what you consider to be incorrect?
A. First of all I failed to understand why they only wanted to know from me things against the defendant and that anything I could have said in favor of Cuhorst was immediately stopped. I stated that under German law that is possible during an interrogation -- that a witness is always permitted in one and the same direction and that he is not permitted -- that even in his written statement to say thing which of necessity represents a supplement of the other facts. I believe I spent a whole morning arguing with Dr. Einstein and he told me under American law it was different. As a witness for the prosecution I was only requited to make statements against the defendant and that other things wore of no interest.
Mr. Einstein repeatedly stated he felt that I was being unduly favorable in my judgment of Cuhorst, and I said that naturally I expected that circumstances in favor of Cuhorst--that is, questions about those--should be put by the defense, and that it would then be possible to form an objective picture of the defendant Cuhorst.
Q Were you placed under secrecy concerning the interrogation by Mr. Einstein?
A Mr. Einstein told me that I was allowed to say that I had been with him, but as to the actual contents I was to keep silence.
Q In what building and under what circumstances did the interrogation take place?
A It lasted eight days, and it took place in Mr. Einstein's office.
Q Were you afraid that you might be arrested?
A During the first days I did have that fear. Mr. Einstein said that he was surprised that I had been discharged from internment.
Q Where had you been interned?
AAt Ludwigsburg and at Heilbronn.
Q From that question did you conclude the possibility that your re-arrest was being contemplated in connection with your attitude in the Cuhorst case?
A Yes, I was counting on it, although I cannot say that Mr.Einstein actually held that prospeckt out to me. I was supposed to have been interrogated at the camp, but it never happened.
Q Who saw to it that you got your food? Were you being given any presents, tobacco and other things?
A Mr.Einstein frequently offered me tobacco, but I always refused it, and said I was a non-smoker. Occasionally in the evening, when it was very late, he offered me Coca Cola.
Q Did you see to your own food, or were you fed?
AAt lunch time I had a meal at the mess, and in the evening I had my meal at home, that is to say, at the witness' house.
Q Perhaps I put this question to you before, but I should like to repeat it.
Did any other persons who had been interrogated by Mr. Einstein, here or elsewhere, make statements or raise complaints about the interrogation methods?
MR. WOOLEYHAN: May it please the Court, I object to that question on the ground that counsel himself states that it was asked before, and it has been developed in detail.
THE PRESIDENT: I could not hear all you said.
MR. WOOLEYHAN: I object, if the Court please, to that question on the same ground as that indicated by counsel, namely, that it has been asked before and it was developed in some detail.
BY JUDGE BRAND:
Q Witness, do you now understand that in this Court here and now you are entirely free to speak the whole truth as you have sworn to do, without fear and without hope of any favor? Do you understand that?
A Yes.
Q You are sure of it?
A Yes, I am.
Q What part of your testimony which you have given in this Court today do you wish to retract as untrue, if any?
I will state it again. Do you wish to say that any testimony you have given here today was untrue?
A No.
Q You are satisfied that you have the opportunity to tell the truth here, are you?
A Yes. I felt the need for that; since the statement which I signed in Mr. Einstein's presence was so one-sided, I felt the need to say other things.
Q Just a moment; you are going to have full opportunity to testify further. I am asking you only if you have told the truth here in this room.
A Yes.
Q Now I will ask you, is there any statement in your affidavit which you now wish to say was untrue when you made it?
A. There are several statements contained in it which are considerably exaggerated. At any rate, it contains statements which I personally would not have phrased in that way.
Q Well, we are not so much concerned with the phraseology; I am asking you if there is any statement in your affidavit which is essentially untrue.
A No.
Q Do you now feel that so far as the affidavit went, in its essence it was true?
A Yes.
Q But we do understand that you desire to add other statements which would be favorable to the defendant and which were not put in your affidavit, is that right?
A Yes, Today I have several times had the opportunity to say such things, and I am ready to say further things of that type here before the Court.
DR. MANDRY: May I make a statement?
BY JUDGE BRAND:
Q The President of the Court has suggested that I now instruct you that you are not to confer, after the court has adjourned, either with counsel for the prosecution or with any counsel for the defense. You are not to discuss your testimony with any person until your return to this court. Do you understand that?
A Yes.
Q: And when you return to the court, we now assure you that you will have full opportunity, and that your counsel will have full opportunity to inquire of you any other facts which they desire to bring out concerning the issues on which you have testified. You will have full opportunity to do so, but you must not confer with any person in the meantime while the court is in recess. Is that plain?
A: Yes.
DR. MANDRY: May I put a question? I want to ask whether the witness has the affidavit in his own hands, whether he still remembers what he said. I haven't seen it here and I don't have it, and as to many particulars. I don't remember the actual Phrasing.
THE WITNESS: I only remember the actual points, not the phrasing.
THE PRESIDENT: The request of the defense counsel is that the witness have a copy of the affidavit so that he may lock it over between now and the next session of the Tribunal?
DR. MANDRY: Yes.
THE PRESIDENT: He may have that privilege.
Is there any other request that defense counsel wishes to make?
DR. MANDRY: I resume that the Tribunal would like me to Stop my cross-examination now and not put any further questions to the witness.
THE PRESIDENT: We have now reached adjournment time.
DR. SCHILF?
DR. SCHILF: Your Honor, may I make a suggestion? In consideration of the fact that the witness has become a little uncertain and has stated at noon today that he was given to understand some one was dissatisfied with his testimony, there is the possibility that his testimony, after the noon recces, will have been colored somewhat.
It is my suggestion that the witness be given an opportunity, before his next examination, to read through today's German transcript. The German transcript of today's session should be available by next Monday.
MR. WOOLEYHAN: May it please the Court, in connection with what Dr. Schilf has just said, naturally we have no objection to the witness reading the transcript. However, we do object to the remark of the possibility of the coloring of the testimony, in view of the questions which were asked by Your Honors from the Bench to the witness, and the answers which you got; we are refusing, if you like, to admit the possibility of any coloring.
THE PRESIDENT: It has already been stated by His Honor, Judge Brand; that this witness is free to tell the whole truth and that this Tribunal expects him to tell the whole truth. If there is anything that he knows that is favorable to Dr. Cuhorst he is at liberty to tell it, uninfluenced by any counsel on either side, and certainly uninfluenced by the Tribunal. Now we are giving him that assurance; we certainly can go no further along that line.
Concerning Dr. Schlif's request, we assume that this witness can remember what he has said, here today. It would be very difficult to furnish him a transcript, so that will have to be denied.
Is there anything further?
We want to emphasize that no influence will be brought to bear by either side in this case upon this witness between now and next Monday morning at 9:30 o'clock. We are seeking the truth in this case, and anyone who attempts to divert a witness from the truth will certainly meet merited punishment.
We will adjourn now until next Monday morning at 9:30 o'clock.
(At 1630 hours, 11 April 1947, a recess was taken until Monday 14 April 1947, at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America, Against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 14 April 1947, 0930-1630, Justice Carrington T. Marshall presiding.
THE MARSHALL: Persons in the courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal 3.
Military Tribunal 3 is now in session. God Save the United States of America and this honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Marshal, you will please ascertain if all the defendants are present.
THE MARSHAL: If it please Your Honors, all the defendants are present with the exception of the defendants Engert and Rothaug.
THE PRESIDENT: They have been excused on their own request. Let the proper notation be made.
Dr. Mandry, will you take your place at the microphone for a moment?
DR. MANDRY: Dr. Mandry, for the defendant Cuhorst.
THE PRESIDENT: Dr. Mandry, I wish to ask you a question or two.
Have you had any communication with this witness since the adjournment time last Friday evening?
DR. MANDRY: No, Your Honor, I have not.
THE PRESIDENT: Have any communications passed indirectly?
DR. MANDRY: During the past two days I have had no indirect contact with the witness.
THE PRESIDENT: That is all I care to know. You may take your s eat.
Dr. Brieger, will you put the headphones an?
DR. BRIEGER: There is no need to Your Honor, I understand.
THE PRESIDENT: Have you had any communication with the witness since 4:30 o'clock on Friday?
DR. BRIEGER: No, I have not, Your honor.
THE PRESIDENT: And none indirectly?
DR. BRIEGER: Neither.
THE PRESIDENT: Take your seats.
Let the witness cone in.
BERTHOLD SCHWARZ (Resumed) EXAMINATION BY THE PRESIDENT:
Q. Dr. Schwarz, have you had opportunity to examine the affidavit which you male on the 25th of February 1947?
A. No, I have not yet received the copy. I should like to ask that such a copy be handed to me.
THE PRESIDENT: Let a copy of the affidavit in the German language be now handed to the witness.
(Document submitted to witness)
Q. First of all, Dr. Schwarz, I want to ask you, having had further time to reflect upon the testimony which you gave last Friday both on direct and cross-examination, whether you now say that all of your answers given on direct and cross-examination were true.
A. I believe that there is only one point where I have reason to doubt my own memory, and that concerns the question as to whether, in the Klaussner-Klautzer case, the juvenile Klautzer actually was a member of the Party. Why I arrived at the view that he actually belonged to the Ritler Youth and the Party-- I considered it possible that that fact Was contained in the verdict which the public prosecutors submitted to me at the time. It is also possible, however, that the interrogator of the public prosecution gave me assurance on that fact in such detail that I believed that it was correct.
Furthermore,as I remember it in the case of Klautzer during the proceedings at the time, several authorities took an interest in him, and I believe I remember for certain that a Party official also took the part of Klautzer.
I remember, furthermore, that later on a Party authority took an interest in him and achieved his discharge from the penitentiary or prison and suggested that he should be sent to the front.
It Was on these points that I based myself in my statement in the affidavit on page 3 and page 4, to the effect that the Party worked for Klautzer, or that the support which he received from the Party had been a decisive factor.
I would like to stress immediately that the whole of that sentence is not my own, but was dictated by the interrogator and that in my view it is purely a conclusion and not a fact, or an assertion of a fact, and cannot be valued as such. That is still my view today.
Q Now, Dr. Schwarz, you have answered a question apparently pertaining to the affidavit. My question was as to whether there is anything in your oral testimony of last Friday which you now wish to say was untrue.
A This statement which , I made now, to my knowledge, I made on Friday during the examination. I mean, the statement that KLautzer, as far as I remember it, was a member of the Party.
Q Now, Dr. Schwarz you said a moment ago that there was one sentence there which was not your own. What was there about that sentence that you would not wish to correct?
A The sentence is to be found on page 4 of the affidavit it runs as follows: " The support for Klautzer on the part of the party was a decisive factor for the Party member Cuhorst.
I May point cut that from the point of view of style alone, I would never have expressed myself in that way. There are a number of other sentences contained in this affidavit which are not my own.
Q One moment. You told us last Friday afternoon that the phreseologie of your affidavit in some places was the phraseclogie of the examiner, Mr. Bistein, and not your own. New I ask you again, the statements contained there, although not your phraseologie, are they essentially correct?
A As far as the essence is concerned, the facts that are stated here are correct. The phraseologie -
Q ( Interposing) That answers my question. That is the same answer you gave last Friday, and you make that answer now, New, you have said in your oral testimony that there were things which you said to Mr. Einstein that were favorable to Mr. Cuhorst and which he did not insert in the affidavit.
You were told last Friday that you would have the opportunity to state anything further which might be favorable to the defendant Cuhorst.
You will now be given that opportunity, but I want you to confine your statements to matters which affects Cuhorst's cebdcutas a judge.
You may now state at this time anything that occurs to you favorable to the defendant Cuhorst affecting his conduct as a judge, that is; as to his severety of sentences, to his cruelty towards foreign workers, those beings matters which you have testified to.
Now you may proceed.
A I should like to base my testimony on the affidavit because particular statements in my affidavit were frequently given after my very long discussion with the interrogator, and during those discussions I pointed out matters which were in favor of Cuhorst, in my view, and which there fore had to be given consideration.
Q You were asked what they were, not whether there were some, but tell us what they were.
A In my affidavit at the time I signed that Cuhorst had been despot and that concerning the public prosecutors he showed tremendous conceit. That was correct. But it was an exaggeration after all. I told Mr. Einstein that Cuhorst took the view that he, basically speaking, believed in accordance with his own nature that he himself all alone knew better about things, and that concerning the work of the prosecution he could for that reason not pay particular tribute to their work. Furthermore I stated concerning the question as to whether it was possible to contradict Cuhorst that it was altogether possible to do so, and as far as facts were concerned, to explain one's different opinion to him. But I also stated that it was very difficult to dissuade Cuhorst from his own opinion.
I also pointed out that the associate judges of the court did not always absolutely follow Cuhorst's power and that Cuhorst in no way treated his associate judges in a manner to cause them to fear that they might suffer any disadvantages from him. But the members of the Special Court were able to state their views openly and frankly, and actually did so. Furthermore I declared that it is not correct that Cuhorst, concerning the questions from the associate judges and from the defense counsel, that he simply rejected them; but on the contrary, very many questions were put. The associate judges put questions above all because, as I said on Friday, Cuhorst frequently was not very well informed about the details in the files. He liked to leave it to the associate judges to broach further important details.
I reminded the interrogator that, for example, the associate judge, Landgerichtsrat Atzendoerfer, used to put very many questions. I also mentioned, though I do no longer remember whether at that time or only on Thursday and Wednesday of last week, that an associate judge by the name of Wagner was recalled from the Special Court because he had put too many questions, which, in my view, too frequently were too detailed and fussy.
Further, I pointed out that Cuhorst did frequently give short shrift to the defense counsel, that he left the files with them for only a short time, and that it happened that he interrupted defense counsel or caused him to keep his pleadings short. I know this, for example, from the attorney-at-law Weber. It is correct that Cuhorst, by ordering that attorney-at-law to be very brief, confused him. But I did explain to the interrogator that the defense counsel, generally speaking, were altogether in a position to make their statements, and that, according to my own observations, only very rarely they were interrupted. The case of lawyer Diesem is, apart from the case of lawyer Weber, the only case which I, myself, can remember.
I also told the interrogator, as far as I remember, that I myself never allowed myself to be detained from keeping my pleading to the manner which I considered correct. I should like to say here too, that Cuhorst several times before I started to plead indicated to me that he wished me to be brief. I did not always follow that, but said everything that was necessary.
Concerning the question of setting the times for the trials, I told the interrogator at the time that in many cases quite enough time was left, and that in many cases between the setting of the date and the holding of the trial a rather long period elapsed. On the other hand, I confirmed that there were also cases where the setting of the dates was very brief indeed. I am thinking mainly of the Alp and Krauetlein case where I remember this particularly well.
I also told the interrogator that in my view, scheduling for such close dates did not probably aim at curtailing the establishment of evidence, but that that was simply Cuhorst's manner, which was always out to have things as brief and concise as possible, and that in scheduling his trials, in view of his attitude towards defense counsel, which was not very kindly, he was often inconsiderate.
Further, in discussing the journeys, I pointed out that these journeys were prescribed by decree and' that the Reich Ministry of Justice attached importance to the fact that, if possible, trials were to be held on the spot. That did not only apply to the Special Court, but also for the other courts.
I also pointed out that the big district of the Court of Appeals Stuttgart made it necessary to take such journeys. On the other hand, I admitted that those journeys of the Special Court Cuhorst frequently also produced exaggerations. Furthermore, I said that I suspected that Cuhorst did go on trips so frequently because it was my impression that his relations with his family were not such as to make him like home, and that it was a certain feeling of unrest which drove him away and caused him to take these trips. On the other hand, I declared that these many journeys in themselves were partly to be blamed for the fact that Cuhorst's name was feared in the whole area. The word "fanatic mania for travelling" was not mine.
Concerning the question as to whether his activity as Gauspeaker had any effect at the trial, I pointed out the opening of the trials did make such an impression, but I also pointed out that the announcements of verdicts by Cuhorst were surprisingly brief, and that many an opportunity which he could use for making propaganda was neglected by him. On the other hand, that Cuhorst also made statements from which it could be concluded that one of his activities was that of a speaker for the Gau. That is to say, he made statements which an ordinary judge would perhaps not have made. As to the question how Cuhorst treated the defendants, I stated that it happened that he was very rude to the defendants and that that concerned mainly such defendants who came from the so-called "better classes."