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."
Furthermore, I pointed out he was very cynical concerning clergymen. On the other hand I stated that Cuhorst, particularly when he was concerned with simple people, could be very nice and kindhearted. I can remember cases where ho comforted defendants, men and women, particularly country people. Ho told them not to be afraid, but to merely tell him what had actually happened.
I refused to sign that Cuhorst liked to give the defendants a bad color. I tried to get the word "bad" eradicated. I wanted to have it replaced by "ridiculous." It is correct, however, that Cuhorst called defendants names which were regarded as offenses by these people. I do not remember any definite expressions, but I believe it is possible that he said to one defendant or another that he was a scoundrel. But those were times, when one could think like that. I am of the opinion that a judge, even if he thinks that, should not say such things because he may be considered to be prejudiced.
Furthermore, they made the suggestion I should say that Cuhorst frequently insulted the defendants in a cynical way. Here, too, I tried to say that nothing should of said beyond the fact that he frequently treated the defendants in a cynical manner, however, I was told that cynical treatment, in itself, always constituted an insult, and that expression remained in the affidavit. That Cuhorst treated the defendants cynically was correct.
Concerning the questions of motions for evidence, I have already made a statement. But the sentence on Page 2, concerning Cuhorst and unpleasant interruptions, such as making a motion for defense, stated he considered those to be obstacle, and he opposed them with a sovereign air. That, again, is not my own sentence.
Concerning this question of motions for evidence I point out, frequently, motions for evidence wore refused because there was a danger that if a witness had been examined, no further facts would be permitted. Actually, it was the intention of the Court to help the Defendant. For that reason, the Court and Cuhorst, frequently, wanted to prevent that witness from being examined because stupid things might be said which would not help him. It made it difficult for the Court to pass a more leient sentence or to acquit the defendant.
I state here that such cases actually did occur and that many defense Counsel did not understand why their applications were being refused.
When I made that statement before my interrogator, he said that I must make that statement. He told me he felt like taking me to see a psychiatrist. The indictment hod to be detailed. I also stated that Cuhorst had a very clean understanding of essentials concerning the statement by the interrogator. It states that Cuhorst had not been able to read the files properly. I had to take the part of Cuhorst and I said that that was not the case. Cuhorst, on the contray, was able very quickly to gain insight. I also stat.d that Cuhorst, naturally, did look at the files, but that it was correct his knowledge of the files frequently was inadequate.
The interrogator hold the view that Cuhorst was stupid. I, however stated that that was not at all true, and that Cuhorst, above all, in practical matters, was superior to many people.
The phrasing of the sentence that Cuhorst, through the indictment, had to be taught the essential facts, was not my own. It is correct that Cuhorst was satisfied with the general outlines of the case, but from that skeleton, he developed the case.
He was considered to bo very clever in conducting trials. I also pointed out that fact. A great many difficulties arose. Frequently, it was not possible for Cuhorst to study the files in the same way in which another judge who had more time might do. I intended to have a sentence on that point put into the transcript, and unless I am wrong, I myself, added it in handwriting at the end of the transcript, but this sentence was crossed out.
After many discussions, I did have this sentence entered. The Penal Court at Stuttgart and the Penal Senate for a long time, particularly, in smaller cases, revised their laws concerning offenses. I pointed cut and explained that Cuhorst in Berlin, for that very reason, was subjected to criticism because again and again, he revised these measures. I pointed out that the President of the District Court of appeals, Kuesner, in my memory, at least once was ordered to Berlin to explain Cuhorst's attitude.
I also know that in 1940, such discussions did take place in Berlin and that at that time, it was they were threatening to replace Cuhorst with a Prussian judge who would bring along with him a very severe attitude.
I believe I remember for certain that I told this, too, to the interrogator. I furthermore pointed out that in several cases, whose lists of cases were compiled at Berlin, which lists stated the sentence had been too lenient. There were many discussions and arguments because of that. I also told the interrogator that I read at least one case where actually a Ministerial Counselor from Berlin came to Stuttgart with such list.
The list was discussed at Stuttgard. The Ministerial Counselor returned to Berlin, and nothing was changed after that. Furthermore, I told the interrogator that in my opinion, the Special Courts at Munich, Dresden and Stuttgard, were regarded in Berlin as the most lenient Special Courts. Their reputation was bad because of that. On the other hand, I did admit to him that in Stuttgard very severe verdicts, were passed too, above all, at the time when the war became more critical. Cuhorst was the man who was the most obstinate in his attempts to put on the brake.
In connection with that question, the interrogator entered the sentence that Cuhorst had kept a balance by inhumanly severe judgments, so that even the R.J.M. saw reason to commute death sentences into prison sentences. The words "inhumanly severe" are not my own. I tried to say merely that cross verdicts had been passed. My own statements were essentially the same as those contained here with the exception of the statement concerning the support for Klautzer from the Party, which the interrogator entered.
I would like to make further corrections. On Page 4, it says that "Klaussner ...." That should say "Klautzer" --" had been considered for reacquiring his qualification as a soldier, and that the Stuttgart Court had supported that." As far as I know, on Friday morning I pointed out to the interrogator for the prosecution that that word "support of the Stuttgart Court" could not bo right, as far as I remember it; that probably that might be a typing error. Whether in February when I deposed this affidavit I said that, I don't remember now. In truth it should say that the question of reacquiring his qualification as a soldier had the support of the public prosecutor. I, myself, signed for that, and I believe that the statement containing this recommendation is with the files.
In the Schmidt case, I believe I spent a whole day opposing the judgment of the case as it is contained here. First of all, the question was, "How many field post consignments had been robbed by this man Schmidt?" First of all, I was told that he had only taken 60 cigarettes; but as I remember it, 60 cases were concerned. I do no longer remember, however, whether that is ***** 2021 mentioned in the indictment or whether that was said in the verdict.
No argued, and finally, so to speak, we came to agree on the 30 to 50 per cent basis. And these were our reasons for making it 50: the brief by a lawyer Diessem in which he defended himself concerning his plea before Glueck concerning the statement that it might have been 50 packets of cigarettes -- he gives that as a maximum. The figure 30 was arrived at because the interrogator for the prosecution made out a calculation saying that Schmidt had committed such thefts for about three months, and that, I believe, he had taken such packets about two or three times a week. That was how the figure 30 was arrived at. I pointed out that Cuhorst did not interrupt the defense counsel in a loud or senseless tone, but that for quite a long time ho lot him talk, and that in a way which surprised me. Only after Diessem had made most of his statements which were embarrassing to me too, Cuhorst interrupted him with a question which was put quietly, although in a tone of excitement. The question was: "Is the homeland not to fight?" That is all. My statement was corroborated because Diessem in his letter to Glueck made the same statement.
The sentence, "Cuhorst , who did not tolerate such a statement from the defense counsel, interrupted them and expressed his distaste", is exaggerated, and docs not represent the true facts. In that phrasing, the sentence is not my own. Nor is this sentence mine, "Cuhorst in a letter to Glueck, the president of the laywers' chamber, demanded and got the suspension of Diessem from the Special Court and the Penal Chumber as defense counsel." That results merely from the fact that somewhat English sounding phrases can be found here. Nor did I ever know what Cuhorst wrote to Glueck, at any rate, I do not remember.
As far as I know, I never read or saw the letter; nor can I testify today that Cuhorst demanded Diessem's suspension. That sentence too and that statement too were dictated by the interrogator. Insofar as my statement-- if it is to be considered as a statement and as a version of my own -- it is not correct.
As to the case of Schmidt, I said that, "Schmidt had a whole list of previous convictions." The interrogator put it to me that only two cases had occurred. I no longer knew that, and so the only thing that wont into the transcript was: "previous convictions for bogging." Today, I state that I remember that the list of previous convictions for begging was very long. I pointed out that the verdict was severe, but that it could hardly be avoided under the instructions at that time to pronounce the death sentence. I declared that the Reich Ministry of Justice had issued very stringent decrees and I pointed out that had Schmidt not been sentenced to death at the time, probably a nullity plea would have been suggested by the Reich Ministry of Justice, and that finally Schmidt would have been sentenced to death in any case. Whether that point of view in any way influenced Cuhorst, I don't know. I told the interrogator that that was merely my view. The sentence that, "that verdict could not be upheld from the human point of view"; that sentence I acknowledged finally because at that time I was of the opinion that the personal extenuating circumstances of the case might have led to justifying another sentence rather than the death sentence. I pointed out that thefts of field post consignments at that time was very frequent, and for that reason the punishment had to be very severe to act as a deterrent.
Furthermore, I made the following statement in that connection; that Cuhorst, generally speaking, held the view that death sentences which had been passed when he w s presiding judge were to bo executed; and that he refused to announce a death sentence and afterwards to support a pardon plea. That I always regretted that attitude of Cuhorst because I, myself, was of the opinion that human points of view should be considered after all concerning the question as to whether the sentence was to be executed: and in the case Schmidt, too, I regarded and declared the human reasons s so important that they should have been considered. In the Fritz case I pointed out in favor of Cuhorst that that case had been far from easy, although the Reich Public Prosecutor considered it the part of the main case and had transferred it to Stuttgart. I told him that we were not only concerned with the handing over of one so-called illegal pamphlets but that the pamphlets had been produced and distributed in several editions. As far as I remember, there had been four or five monthly issues which came out from about September 1941 to February. I pointed out several defendants were not only indicted for having passed on pamphlets, but that some defendants had also taken part in producing the pamphlets. I had long arguments to get the following sentences into the transcript; besides Fritz and Wagner were indicted with having given assistance. This work "assistance" by the interrogator, concerning Wagner, I meant in a purely exterior way for in the case of Wagner she had hidden the typewriter or duplicating machine, and she had moved the pamphlets; and at least once she had passed on the manuscript for such a newspaper. The verdict stated that she had known what was in the room; but concerning the defendant Fritz I pointed out that he was the leader of the group, and that he was the spiritual loader.
In the case of the defendant Jatzek I pointed out that Jatzek had, among other things, given shelter to a communist functionary, but I. must make corrections; I believe here that the interrogator for the prosecution mentioned that point, but it was not entered in the transcript.
Furthermore, I declared that a number of the defendants had political previous convictions, and that for preparing high treason; and that some of them had been in protective custody; and, therefore, had had a warning. The only thing that was entered into the transcript concerned the previous convictions of the defendant Jatzek; and I believe it was a mistake as to how this question was entered into the transcript. Concerning Jatzek it said he alone had previous convictions. In this phrasing that is incorrect. I told the interrogator that as far as I remembered Jatzek had been the only one who had. criminal previous convictions, that is to say, for theft, fraud, or other offenses, and that is how it can be explained perhaps that that phrasing was entered in the transcript, as it was done on page five at the bottom. I clearly stated that the others, that the other than two, that most of them had previous convictions. I was under the impression that there was a tendency to minimize the Fritz case, and I tried to represent it as it happened; I even handed the interrogator a written statement on that case which was not used as a basis for the transcript. That statement on the Fritz case is no longer in the possession of the prosecution because I took it away with me.
MR. LaFOLLETTE: May the Court please, I keep hearing the witness saying that this was not included in the transcript. I wonder if he means "affidavit". I think surely he must be saying "affidavit". If he is speaking, if he is saying "transcript", then ho is making a very ineffective statement. I think he is saying "affidavit", but I would like to have him asked what he is saying.
BY THE PRESIDENT:
Q. Now, Dr. Schwarz, when you use the word "transcript" you are referring to the transcript of your testimony as carried into the affidavit, are you?
A. The word -
Q. Yes or no will answer that question.
A. There was not a second transcript which was then summarized in this affidavit, but this affidavit is the only thing which I signed.