BY DR. BRIEGER:
Q Witness, in July and August 1943 were you also in Stuttgart?
A Yes.
Q At that time do you recall cases where you attended trials where Cuhorst was Presiding Judge?
A I can no longer name the period to you. Mainly while I was working on my large thesis for the state examination, but was working from morning to night in preparation for my state examination. That was the end of June until the middle of July. At that time I did not attend any sessions.
Q Witness, I shall help you to refresh your memory. I shall name you one or another name which describe the facts of the case to you briefly, and you state what you on your side know about it. Micheal Schmidt, post robber. Is that a concept to you?
Court No. III, Case No. III.
A. If he was an old men, approximately 60 to 65 years, who was already pensioned, retired, but as an old civil servant had again been brought from oblivion by the Nazis in order to serve again, if it was this man, because he had a special passion for smoking, from field post letters -- I believe they were letters and not packages, occasionally stole amounts of cigarettes, then I recall this case.
Q. Yes. What observations did you make in that case?
THE PRESIDENT: You are still on the same subject of cross examination to credit. Do you desire to inquire of this witness anything concerning his opportunity or what he heard Mr. Cuhorst say? Will you do that?
DR. BRIEGER: Yes.
BY DR. BRIEGER:
Q. You were speaking of conversations that you listened to, -- overheard. Tell me in every individual case to whom Cuhorst made the remarks. First the remark: "We again have to deliver some heads to you", or I will tell you right what the remark was. I may say first, since -- may I assume, since you were Referendar, that you knew the names of the gentlemen?
A. No. In Stuttgart I know the names of perhaps five or six people. No more. I do not recall names. I am not interested in the, because outside of Cuhorst these gentlemen did not arouse my interest, except, of course, a few gentlemen whom I might have met later on during, the examination.
Q. Who told you that Cuhorst was an interesting criminal judge? Who was the first one to tell you?
A. When one arrived as a newcomer in Stuttgart, of course one inquired about the conditions in particular the colleagues, the referendats, especially Schwarz whom you mentioned and whom, by the way, I have met here again since I knew him, and he is the only one whose name I know -- merely some gentlemen of the Prosecution, perhaps two or three.
I didn't know any of the criminal judges. Of the civil judges outside of my chamber, perhaps only one. I don't know names.
Q. In regard to no remark which you made here can you state to whom Cuhorst made this remark?
A. No. No, no. I don't know the names.
Q. I ask you in every case now to state me on the occasion of which special case that remark was made.
A. Well, that, of course, I can't tell you either. At least let us say without exaggeration I attended 15 to 20 sessions. That is putting it as a low figure.
Q. Now often were you there alone, and now often together with Eberhard Schwarz?
A. I believe I was mostly alone by myself. However, if Herr Schwarz whom of course I know, was working in a different field in part, he was there too, if he had time. Also with other colleagues, but their names I don't know any more.
Q. How does it happen that you got in touch with the Prosecution here? Did you offer your services as a witness in this case, or did somebody suggest to you that you should come here as a witness?
A. In this trial here, you mean?
Q. Yes.
A. Due to my former activity, which I believe now you know quite sufficiently already, a few hours after the American troops entered Koblenz I was called because abroad they knew me already as a well-known person, and from that time on I was a special man, a specially trusted man of the American, as I am today of the French military government.
Q. Where were you used as a trusted man of the American military government?
A. In Koblenz.
Q. In Koblenz?
A. Yes. In Koblenz. As a trusted man I had not excaped, but during the collapse I remained there in Koblenz. In regard to all courts except two in the entire area of the District Court of Appeal of Koblenz -
Q. Please mention the name of one or the other American officers under whom you worked, their names.
A. I am still a very good friend of Maj. McKiefer, at present Lawyer in New York. I believe before that he was Public Prosecutor in New York, Attorney General. Mr. Dr. Bonn, German emigrant from Berlin, Mr. Orbach of CIC. He was a professor from Cincinatti. I don't know whether I am pronouncing the name correctly. Orbach. Then Mr. Goltz, Paul Goltz, and -- Just a moment. Names -- I just can't remember names.
THE PRESIDENT: I think you have answered. You have named enough of them.
BY DR. BRIEGER:
Q. Now we will come back to Cuhorst. Who told you to watch Cuhorst?
A. During the war I had very limited contact with foreign countries. During the war I could not get any specific assignments, especially not from foreign countries, out it was a general tendency that everything that was interesting, especially in regard to intended actions, I marked down not on paper, but in secret nature. Unfortunately, everything burned up except my execution records, which, thank God, I saved, because I put them away. On my own initiative, because I was working in the entire field, I took over the watching of Cuhorst and others. In Stuttgart, however, Cuhorst was the only one.
Q. And these conversations between Cuhorst and the other gentlemen, did they happen in the halls or in the consultation chamber, or where?
A. Of course, since I was an unknown person I never entered the consultation chamber, but I saw Cuhorst in front of his office, on the way to his office, in the washroom once, and so forth, where, in a show-off manner, I would like to say, he made these remarks. I greeted Cuhorst. I don't know whether he recalls me. I hardly think so. I almost didn't recognize him myself, but he didn't know my name.
Q. During all of the last months were you in contact with Eberhard Schwarz?
A. When I heard about the Justice case I thought to myself, of course you could testify to a few things, yourself, too. But since I don't like to offer my services myself I didn't do so, but I hoped that Eberhard Schwarz -- I believe that this is the first time I heard is first name, Eberhard but in any case, Herr Schwarz, that he was still living and since he was from Stuttgart, who knew Cuhorst very well, would take his own steps so that justice would be done.
Q. Did you discuss these matters in detail with him that you are testifying about today?
A. No. I saw Herr Schwartz for the first time 48 hours ago.
Q. For the first time since when?
A. Since 1943.
Q. But did you frequently correspond with him because of these things?
A. No. To this very day I don't know where he is living.
Q. Did you also make notes in regard to Cuhorst as presiding judge?
A. Not during the session, but afterwards.
Q. And these notes were sent to an intelligence office?
A. I was not that careless, no.
Q. Did you wire them, send them over by radio, or how did you forward them?
A. I had very secret possibilities to forward them to my friends and acquaintances.
Q. Otherwise I am not curious, but here I am very interested in these secret possibilities.
MR. LA FOLLETTE: I object, in regard to what he did with the information.
THE PRESIDENT: The objection is sustained.
MR. LA FOLLETTE: I think it is about time we stopped arguing with the witness. I thought you wanted to leave.
DR. BRIEGER: This is very important business, Mr. La Follette.
BY DR. BRIEGER:
Q. Did you ever see a death sentence list by Cuhorst, or did Eberhard Schwarz ask you to help in making up the list?
A. No.
Q. Never?
A. No. A death sentence list I never saw.
Q. In what capacity are you employed now? If I understand you correctly, as a judge?
A. As a judge, yes.
Q. What is your official rank? What are you, a District Court judge, or what?
A. No. My promotion was delayed in the Nazi time for reasons that I was discharged as a judge and transferred to one prosecution on criminal cases, therefore I was not promoted. And after the collapse until today there was no promotion in the French zone.
Q. But now you are a judge, or what are you? What is the nature of your activity? I didn't quite understand that.
A. I am employed as a judge with the title Gerichts Assessor, and I am associate judge in a civil chamber. I am especially and particularly working on divorce cases, that is, cases legally speaking.
Q. Thus your denazification proceedings have not been quite concluded as an SA man?
A. I am very proud to have been an SA man, in quotes. I don't consider that a negative thing but a positive, a plus, as well as my friends abroad consider it.
DR. BRIEGER: Thank you, witness.
THE PRESIDENT: The witness is excused.
MR. LA FOLLETTE: Call Wolfgang Wiskott.
WOLFGANG WISKOTT, a witness, took the stand and testified as follows:
JUDGE BLAIR: Hold up your right hand and repeat after me the following oath:
I swear by God, the almighty and Onmiscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE BLAIR: You may be seated.
DIRECT EXAMINATION BY MR. LA FOLLETTE:
Q. Will you state your name, please?
A. Wolfgang Wiskott.
Q. Your profession?
A. Amtsgerichtsrat, local court judge, at present suspended from service.
Q. When did you begin work with the Reich Kommissar for the Ukraine? Was it in 1944?
A. No, in the beginning of 1942.
Q. In 1942. And you worked until when in the legal department there?
A. Until 1944.
Q. Do you know the defendant Cuhorst in this case?
A. Yes, I meet him in Rowno, in 1943.
Q. Will you tell the Court where he sits in the dock, please?
A. Yes, he is sitting in the second row, and he is wearing a uniform coat.
Q. Who was the president of the German Upper Court in the Ukraine when the defendant Cuhorst came there?
A. That was Senate President Dr. Funk.
Q. Do you remember approximately how long Cuhorst stayed?
A. One to two weeks.
Q. Were you assigned to answer his questions about possible service in the Ukraine or was Dr. Funk assigned to that?
A. Dr. Funk did so himself.
Q. Do you remember while he was there the occasion of a session in the German Upper Court in Shitomir?
A. Yes, the German Upper Court held a session in Shitomir while Cuhorst was in the Ukraine.
Q. Did you sit as an associate judge?
A. Yes, I was an associate judge.
Q. And who was the presiding judge? Dr. Funk?
A. Dr. Funk, yes.
Q. And who was tried?
A. A German was tried--a Reich German. I don't recall his name.
Q. Did the defendant Cuhorst sit in that trial as judge?
A. Yes.
Q. Did he cast a vote in the verdict?
A. Yes, he did.
Q. What was the sentence?
A. Death sentence.
Q. Was the man executed?
A. Later on he was executed.
Q. At the time Cuhorst sat, how long had you been assigned to the Legal Department of the Ukraine?
A. In the court?
Q. Well, no, in the Legal Department generally--at the time of this trial which we talked of.
A. About ten months.
Q. Were you acquainted with the laws with reference to the appointment of judges in the Ukraine at the time Cuhorst sat?
A. Yes, the German Code of Legal procedure had to be applied in accordance with its meaning.
Q. I am talking about now with reference to the appointment of a judge to sit as a judge in the Ukraine. Are you acquainted with the laws and regulations governing that?
A. Yes.
Q. I ask you whether in your opinion Cuhorst had any legal authority to sit as a judge in that case by virtue of any appointment?
A. No, he had only been sent to the Ukraine to inform himself about the legal situation there, and so forth.
Q. That is all CROSS EXAMINATION BY DR. BRIEGER:
Q. Witness, may I start with the assumption that your request for summoning is in the record?
A. Yes.
Q. How are you employed today?
A. I am in a private position in Hackenburg.
Q. And at that time you were a judge?
A. At that time I was referent for the Reichkemmisar in Rowno, and in addition, I worked as a part-time judge.
Q. You are a full jurist?
A. Yes, I am a full jurist.
Q. Where did you take your examination?
A. In July 1935, in Berlin.
Q. Where did you study?
A. In munich, Heidelberg, Greifswald and Muenster.
Q. Where and when did you take your doctor's degree?
A. Not at all.
Q. Witness, please describes whether deviating regulations existed regarding the employment of judges different from the regulations in tho old Reich or were there no differences?
A. The differences consisted of this: that in the pertinent regulations, it said that the regulations of the old Reich had to be applied in accordance with the meaning: for example, it was like this, tart the German Upper Court had a name which did not exist otherwise in the German legislation. This was parallel to the German District Court of Appeals.
Q. Were there also judges meetings in the General Government outside of your closer district?
A. I beg your pardon. That was not the General Government but the Reichkommisariat Ukraine.
Q. Oh, yes, the Ukraine.
A. I met other judges there too, yes.
Q. Were they all professional judges?
A. The judges who were working there were to all fully trained jurists and professional judge. It also happened that lawyers were working there as judges he had the official assignment to work there as judges.
Q. Was that the same in the case of prosecutors?
A. Yes, also in the case of public prosecutors.
Q. Is it known to you that during the war judges were drafted as judges and that full jurists were taken for that too who came from ether professions?
A. Yes, that is correct.
Case III, Court III
Q. What special difference to you see in that that Cuhorst was used as a judge? After all, he is a professional judge?
A. The other judges who were working in the Ukraine had received an official transfer from the Reich Minister for the Occupied Territories; whereas, Cuhorst at first was in the Ukraine only in order to inform himself, that is to say, not in order to do some official service there.
Q. Do you know whether this appointment was delegated by the Kommisar of the Eastern Territiries to other offices?
A. No.
Q. Do you know the expression: "to delegate authority?"
A. Yes.
Q. Please describe in detail--this is very important-in what manner Cuhorst was appointed to the Court. Was this due to his own initiative or whose initiative was it due to?
A. I cannot remember how it happened in detail. Supposedly an oral agreement was made in advance between Herr Funk and Herr Cuhorst. I furthermore assume that Funk, who had to write a written order for the opening of the Court, entered on this written order that an associate judge, in addition to Mosirt, also would serve, and that this order was submitted to those who participated in the original trial for their information.
Q. A young assessor could have been employed for that too, is that correct? I mean in this court in which Cuhorst was working, a young assessor might have sat also in his place instead? What hinderance would there have been?
A. The thing that would have been prevented was that the German Code of Legal Procedure would have to be applied. Thus a judge could not be appointed for one individual case only.
Q. You mean to say, or do you mean to say, that Cuherst was appointed only for this one trial which ended in a death sentence?
A. I don't, know that for certain. I remember that after wards Herr Cuhorst went to Kiev. I don't know whether there was a trial in Kiev too. In any case, I did not take part in it.
Q. Please tell me the facts of the case. You haven't stated them yet.
A. The man was indicted because of undermining of Military morale. In Mosirt, he had spread defeatist rumors.
Q. Can you state the remarks he made?
A. The exact remarks I don't remember. They were concerned with conditions in the Fuehrer Headquarters and about the camps and the situation at the fronts.
Q. What other judges took part? You also belonged to the Court. You must remember the names.
A. The Court consisted only of one presiding judge and two associate judges.
Q. And what were the names of the associate judges?
THE PRESIDENT: He has already covered that, and furthermore, the defendant Cuhorst testified that he was in this trial. Consequently, you needn't cross examine as to credibility on that point BY DR. BRIEGER:
Q. An error on my part, Your Honor. There is no doubt about that. Who was the prosecution?
A. Senior Public Prosecutor Herland.
Q. Thank you vary much.
THE PRESIDENT: The witness is excused.
Dr. Brieger, in accordance with the sound sentiment to the Tribunal we feel that you should be excused until Monday morning at ten o'clock.
DR. BRIEGER: I feel gratefully indebted to Your Honor.
THE PRESIDENT: Now your assistant is in the courtroom, is he not?
DR. BRIEGER: Not at present, no. Mr. Mandry has now a case of his own, and accordingly he preferred to resign as my assistant. I just filed an application today for a now assistant.
THE PRESIDENT: You have document books which your assistant could put in tomorrow, could he not?
DR. BRIEGER: Your Honor, we assume as a pre-requisite that my assistant shall have been appointed already tomorrow and in that case he would have been present for such a time that I would prefer if another counsel would submit documents. If I am correctly informed, Dr. Wandschneider or Dr. Bode, for Dr. Wandschneider, is ready for the submission.
MR. LA FOLLETTE: As far as the prosecution is concerned, if the Court is satisfied, any one may act as Dr. Brieger's assistant.
DR. BODE: (for the defendant Dr. Rothenberg): May it please the Tribunal, if it is within your approval, we shall begin with the submission of our documents tomorrow, since in the meantime all of the translations have been submitted to the Tribunal as well as to the prosecution.
THE PRESIDENT: That will be satisfactory.
MR. LA FOLLETTE: Yes.
THE PRESIDENT: Are there other counsel who can fill in the time tomorrow with document books? Is there one more left for you, Dr. Kuboschok?
DR. KUBOSCHOK: It hasn't been translated yet, Your Honor.
DR. SCHILF: May it please the Tribunal, I still have to submit a document book No. 6. However, I have not yet been informed as to whether the Tribunal or the Secretary-General already have the document book at their disposal.
If that should be the case, I would be ready to offer Document Book 6 tomorrow.
THE PRESIDENT: The document book appears to be ready. Well, gentlemen, we rill simply request all of you who have document books which are ready to assist the Tribunal and counsel by taking up the time tomorrow with the document books so far as possible. We will recess now until tomorrow morning at nine-thirty.
(The Tribunal adjourned until 5 September 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 5, September 1947, 0930-1630, Judge James T. Grand, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III.
Military Tribunal II is now is session. God save the United States of American and this honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Mr. Marshal, will you ascertain of the defendants are all present.
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom.
THE PRESIDENT: Let the proper notation be made.
Before you proceed, Dr. Wandschneider, the Court had received an informal petition in the matter of the respondent Marx referring to the condition of his health. We have this morning received the results of a physical examination by a Medical practitioner and find that no good reason exists, either on the basis of this condition of health or otherwise, for any modification of the sentence hereto fire pronounced. It is, therefore, ordered that the sentence be carried out.
You may proceed.
DR. WANDSCHNEIDER: May it please the Tribunal, I am speaking for the defendant Dr. Rothenberger, and ask to be permitted to submit his documents. I assume that the Court has my document books in the English translation. I begin with Rothenberger Document Volume 1, and offer document No. 1, the affidavit by Minister of Justice Dr. Kiesselbach.
THE PRESIDENT: Will you wait just a moment until the books are delivered to us, please?
DR. WANDSCHNEIDER: Certainly, Mr. President.
THE PRESIDENT: I don't recall at the moment, but have you introduced any document books before for defendant Rothenberger?
DR. WANDSCHNEIDER: Yes, Your Honor, the document books have been dis tributed:
All fice document books, four main volumes, and one supplementary volume.
THE PRESIDENT: But you are starting your Exhibit No.1 are you?
DR. WANDSCHNEIDER: Yes. I timnk you, Your Honor. I begin with my Volume 1 Document 1. It is an affidavit by the Minister of Justice of the British Zone, Dr. Kiesselback. I offer this statement as Rothenberger Exhibit No. 1. In the case of this affidavit by Dr. Kiesselbach, I want to state that Dr. Kiesselbach for many yours was a member of the Claim Commission in Washington after the First World War. He is new in the British Zone. As Minister of Justice, he was President of the District Courts of Appeal in Hamburg, and at the end of 1933 Dr. Rothenberger took over his office. He said that Dr. Rothenberger, in a very liberal way, developed this program, and he was not at all fanatical. As for his program--Rothenberger's program--he says that at that time a program was written down which if it had become known to the National Socialists would have become very dangerous to him. That is the essential thing, and I refer to the contests of that document. I offer Exhibit 1 in evidence.
In the same volume I offer Document No.2 as Exhibit No. 2 It is the affidavit by Dr. Paul Lindermann. It's on Page 3. Dr. Linderman was sundiker of the senate in Hamburg and was appointed again by the British Military Government. In his rather extensive affidavit, I want to stree only two essential points. He says that the law for the restoration of the civil servants has been carried out in Hamburg in a very lenient way; that of 10,000 civil servants only 150, on the basis of that infamous paragraph 4 of the law, have been dismissed. He also says that all senators who had been in office until that time, also these of the Social Democratic Party, continued to receive their pensions on the basis of a law which had been issued by the Bruening Government, even the Jewish senators--these who had been in Hamburg before 1933. He ends his statement.
by saving that the appointment of Dr. Rothenberger as Under-Secretary made a great impression on him at the time. Dr. Rothenberger had told him that he felt he was new in a position to reduce the influence on the judiciary by the SS. I offer this document as Exhibit No. 2 in evidence.
THE PRESIDENT: Just a moment, Doctor. I think you have probably been present in the courtroom when the Tribunal has previously suggested that it is exceedingly difficult for us to deep the records and at the same time again any benefit from the summaries of the exhibit, which we examine very carefully aftewards, so we hope you will bear that in mind in your dealing with them. Also, in order to save a little time, and such time as there is an objection, if there is any, the Tribunal will not in each instance made an order receiving the exhibit, but will, after you have offered a number of them, receive them from we to a later number consecutively in order to save a little time.
DR. WANDSCHNEIDER: Yes, Your Honor. Then I will only stree the most essential points. I offer No. 3 of Document Book I as Exhibit No. 3. This is a report which has been submitted before as an HG document by the prosecution, but I would like to have it as an exhibit for the defense, and therefore I have given it an exhibit number of the defense. As Exhibit No. 4, I offer the affidavit by Dr. Bussmann of the 5 of June 1947 It is also in Document Book I, on page 11 of the English test. I would like to quite one passage: "Dr. Rothenberger tried to keep qualified judges, even when they were Jews, to keep them in office; and if according to the directives he had received they shouldn't have been kept in office."
Document No. 6 I offer as Exhibit No. 5. It is the affidavit by Dr. Schmidt-Egk. I offer this after identification only.
THE PRESIDENT: You meant to omit your No. 5, did you?
DR. WANDSCHNEIDER: Yes, Your Honor, No. 5 is omitted. Document No. 6 for identification is offered as Exhibit No. 5. This is made by a successor of the defendant as President of the District Court of Appeals in Hamburg, and I shall refer to it later again.
I only want to emphasize one sentence here. It says on Page 28: "Thus also for trials which took place in Hamburg, again concerning nullity pleas, I can so that in all case with the exception, according to my recollection, the sentences did not become more severe." He goes on to explain that the Hitler speech of the 26 April was a serious blow for Dr. Rothenberger.
As Exhibit No. 6, I would like to introduce a document from my Document Book No. IV. It is Document No. 71.
THE PRESIDENT: Would it be inconvenient for you to finish your Document Book I first?
DR. WANDSCHNEIDER: I had put the document books into an order according to their contents, and that brought it about that I can't offer the documents in the order in which they are in the books. When we arranged the document books, we could not take that into account. I ask you to excuse me if I caused this inconvience to the Court. That is then Document No. 71 in Document Book IV. It is on page 69 in the English book.
THE PRESIDENT: And this is to be your exhibit Number?
DR. WANDSCHNEIDER: That will be my exhibit No. 6.
THE PRESIDENT: Then in Document Book I, Exhibits 1 to 5 inclusive are received in evidence.
DR. WANDSCHNEIDER: Yes. Thank you, your Honor.
In Document Book No. IV, I offer Document No. 73 as Exhibit No. 7. It is on page 80 in Document Book IV. This is a very serious reprimand on the part of Berlin. There are some more documents--four documents-in Document Book No. I. In Document Book No. I, on page 31, we find Document No. 7. It is an affidavit by Professor Fischer. That affidavit is significant because it was written by a man who had differences of opinion with Dr. Rothenberger, and is a man of a good reputation; a member of the Hanseatic Bar Association, and a member of the Vorstand of the German Lawyer's Organization. In this affidavit, he points out that Dr. Rothenberger, during the time when he was Under-Secretary, in the course of a meeting, spoke rather strongly against radical tendencies. I offer this document as Exhibit No. 9.
THE PRESIDENT: It's 8, isn't it?
DR. WANDSCHNEIDER: No, your Honor. It's Exhibit No. 9, Professor Fischer. That will be Exhibit No. 9. Before that, I omitted Exhibit No. 8. I just found that put. Before this Document, as Exhibit No. 8, I offer a document from Document Book No. II.