A.- Yes, I spoke to Ferber at that time. I made his acquaintance.
Q.- What did Ferber tell you concerning the fact that Freisler made statements about the Katzenberger case?
MR. LA FOLLETTE: Just a moment, please. I object to this, Your Honor, for the reason that if it is designed to affect the credibility of the witness Ferber, no foundation was laid at the time the witness Ferber testified to identify this conversation nor to refer to it.
THE PRESIDENT: He may answer the question.
THE WITNESS: Dr. Ferber, in the course of the conversation, briefly mentioned that Undersecretary Freisler had talked to him or had approached him concerning the Katzenberger case, or whatever the name was, concerning a case tried before the Special Court at Nurnberg. As far as I remember, Ferber did not tell me any more about that matter.
BY DR. KOESSL:
Q.- Was that matter considered important?
A.- Not as far as I was concerned.
Q.- As far as Ferber was concerned?
A.- Of course not.
THE PRESIDENT: He needn't tell what was considered important to Ferber.
MR. LA FOLLETTE: The objection is sustained and the answer is stricken.
BY DR. KOESSL:
Q.- What was Ferber's attitude when criticism was voiced on the severe course of the Special Court?
MR. LA FOLLETTE: Wait a minute, please.
I object, Your Honor.
THE PRESIDENT: Objection sustained.
DR. KOESSL: I have no further questions.
THE PRESIDENT: You may cross examine.
CROSS EXAMINATION BY MR. WOOLEYHAN:
Q Mr. Azesdorfer, would you please lock in my direction. I want to talk to you. In your experience as a judge on the Sttutgart Special Court did that court pass sentence on the basis of racial characteristic of the defendants, according to the Mazi theories of race?
A The Special Court Stturgart did not take racial characteristics into consideration. I have already mentioned that for instance the prosecution of penal cases on the basis of laws did not belong to the competency of-
Q You have answered my question. You said they did not. Now I show you a document. Do you find that that document constitutes the appeal of the defendant Eckstein and the defendant Winter for a reopening of proceedings?
A I did not understand the question.
Q Please look at the document which I have Just handed you.
A Yes, Yes.
Q Do you find that that is a plea for reopening of proceedings on behalf of the defendant Eckstein and the defendant Winter, who had boon sentenced to death by the Stuttgart Special Court for stealing bicycles?
A Do you mean that document of 27 November.
Q Just tell me, please, in a generic way if that, in general, is to document you hold in your hand.
A Yes--well, yes. Yes, certainly.
Q Now please turn to Page 7 of that document.
A Page 7?
Q Do you find that Page 7 is the first page of the decision of your court on the plea by the defendant Eckstein?
Is that correct? Dated 5 March 1943.
A The decision against Friedrich Eckstein--yes, I have that before me.
Q How would you please turn to page 8.
A The pagination is not quite correct. Is the paginationthe figure 8 supposed to be on the page? I don't find a figure 8.
Q The 8th sheet in the document.
A Three, four, five, six, seven, now I have the eighth page. It is Page No. 2 of the decision of 5 March 1943.
Q That is correct. Now, at the bottom of that page do you find the following language quoted by the Court: The crimes established-
A Under three?
Q --his numberous prior convictions, the incorrigibility of the condemned, who for years had been rooming around like a gupsy, never doing any regular work, and together with his accomplices represents a considerable danger to the public, now as ever demand his complete extermination from the racial community, and thus the death penalty. Do you find that language in there?
A Where is the expression "racial community"?
Q That is at the top of the 9th sheet.
A That is "people's community." That is basically, fundamentally different than the racial community. It says "Volksgemeinschaft."
Q All right, you read the phrase, Mr. Azesdorfer, beginning with "now as ever."
A Is that on the previous page?
Q At the top of the 9th sheet, Mr. Azesdorfer. Read the phrase, "Now as ever demand his complete extermination," and so on.
A Demand now as ever his complete removal from the People's community. I don't find anything else.
Q And the fact that you refer there to the people's community and Eckstein is referred to as a gypsy has no connection in your mind, the fact that he must be excluded therefrom. Is that a fact?
A Eckstein was no gypsy. That was established. It was established that Eckstein was no gypsy.
Q If Eckstein was no gypsy, why does the opinion, in which you concurred, state that he was, at the bottom of page 8?
A No. It says, from the outset it is stated in the opinion that Eckstein was a vagrant, like the gypsies, and that he had joined the gypsies.
Q All right. That is sufficient. Now, at the top of Page 10, the next sheet, the 10th sheet.
A That is the decision concerning Winter.
Q Right. And in the upper right hand corner do you find Winter described as single and a gypsy?
A Yes.
Q Now on Page 11 in the last paragraph on that page, do you find Winter described as a typical gypsy who was a menace to the public?
A Certainly, because these gypsies, as far as they were roving around and ware without work, frequently constituted a danger for the community.
Q Now before we leave that matter of the transition which you corrected, namely this folk community, from 1933 until 1943 could a Jew be a part of this folk community?
AAccording to the official opinion of the Party, he could not.
Q Could a Pole be a part of this folk community?
AAs far as he was not a Reichsangehoeriger, Reich Citizen, certainly not. That is ay personal opinion.
Q Then could you find any difference between the phrase "racial community" and "folk community"?
A I consider the -- when I hear the term Volksgemeinschaft," folk community, I think of a national community such as there is a national community of Englishmen, Frenchmen, and Americans.
Q That is enough. In your experience in the Stuttgart Special Court, Mr. Azesdorfer, did you ever think that defense counsel were prejudiced or put at an important disadvantage? Now, you can just answer that yes or no.
A In what direction, may I ask? Defense counsel had serious disadvantage? For what reason?
Q For the reason of giving their clients a fair defense. Were they over put to any disadvantage and prevented from doing that?
A No, not according to my knowledge, provided the defense restricted itself to relevant points. I remember one case with which a friend of nine was -
Q I am not asking you about that. I an asking you in general. You have answered my question. I show you a letter. Please turn to Page 5 of that letter.
A Page 5. Conversation with -
THE PRESIDENT: Just moment. Counsel hasn't asked you any question yet.
BY MR. WOOLEYHAN:
Q Now, on Page 5 of that letter, Mr. Azesdorfer, do you fin the following sentence: "It was also I who opposed the tendency of restricting the rights of defense counsel which appeared from time to time, and I took a stand for defense counsel who in the heat of a trial had passed liberalistic remarks."
Do you find that sentence there?
A Yes, certainly. I an just thinking of that one case, the one case I have mentioned.
Q Will you please wait until I sak you a question, Mr. Azesdorfer? Who wrote that letter?
A What letter?
Q The letter you just read from.
A That is mine. Those are my statements. My statements to the Administration of Justice of the land Wuerttemberg. My point of view.
Q Your point of view when? What is the date on that letter?
A 12 August 1945.
Q Why did you write that letter on 12 August 1945, and to whom did you write it?
A To the Administration of Justice of the Land Wuerttemberg. At that time it was put to me to explain my attitude toward national Socialism briefly.
Q And in that letter were you telling, to the best of your knowledge, the truth?
A Certainly.
Q All right, that is all. Now, one final thing, Mr. Azesdorfer. Did you in assisting in the judging of cases at the Special Court Stuttgart during the war ever particularly relate the activities of that court to a successful waging of the war?
A That was a phrase, a term, which occasionally was used in sentence concerning malicious acts cases when so-called malicious criticism had been expressed against the government.
I emphasize "so-called" malicious criticism. The phraseology of the agencies was to the effect that such a criticism constituted a danger for a victorious conclusion of the war. That was a phrase, which, to my knowledge, had been coined in the Ministry and beyond doubt that phrase also appeared in sentences of cases against the Malicious Acts Law.
Q I show you another document. Turn to Page 4, please.
A Yes.
Q. On page 4 do you find the following sentence: "I recall a sharp clash with another judge during one of our deliberations, because I was going to be outvoted in a political case"?
A. Yes.
Q. "And I declared that maybe in too drastic a manner one would be mistaken by assuming that the war should be won with such Senseless penalties." Who wrote that letter?
A. I, of course. I wrote that letter.
Q. When did you write it?
A. Probably on the date it shews here, 5 September 1945.
Q. Why did you write it?
A. For the very same reason, in order to justify my attitude during the Nazi period.
THE PRESIDENT: Mr. Wooloyhan, we will recess for fifteen minutes.
(A recess was taken.)
THE MARSHAL: The persons in the Courtroom will be seated.
The Tribunal is again in session.
CROSS EXAMINATION BY MR. WOOLEYHAN: Mr. Azesdorfer, you have described from the document which you hold in your hand these two pleas fro reopening of proceedings on behalf of the two gypsies, Eckstein end Winter. Now turn to the document there on the ninth sheet wherein the sentence appears including that phrase "volk community" we were discussing this morning. Whose name appears at the bottom of that document as having signed it as President of the Senate?
A. Yes.
Q. Whose name?
A. Cuhorst.
Q. Cuhorst. Now at the bottom of the similar plea on behalf of the Gypsy Winter, wherein Winter is described as a typical gypsy and his plea is refused, whose name appears there as signing as President of the Senate?
A. Cuhorst.
Q. Cuhorst?
A. Again Cuhorst.
Q. That is all.
DR. BRIEGER: May I take this witness into redirect examination?
THE PRESIDENT: Yes.
RE-DIRECT EXAMINATION BY DR. BRIEGER:
Q. What was Cuhorst's attitude towards defense counsel and what was your own?
A. When the prosecution interrogated me, I pointed out that I cannot claim that Cuhorst in strictly pragmatic matters limited the defense counsel and restrained them. I wish to have this statement, as far as it concerns the defense counsel itself, maintained. I must, however, point out in this connection that Cuhorst towards defense counsel frequently developed unpleasant habits.
For instance, if a defense counsel would become too long-winded and prolong the trial, end in that respect it would happen that controversies occurred.
I took the attitude that defense counsel should be given every latitude, whereas Cuhorst took the view that a hearing, as far as defense counsel's plea was concerned, should be short and brief and limit itself only to the essential points. Furthermore, I sometimes had the opportunity of suggesting to defendant Cuhorst as regards remarks which were made by defense counsel, which were a hidden attack on the party for instance, or might be interpreted as such, to show more generosity. That was the meaning of this remark I made which was put to me just now concerning liberalistic remarks made by defense counsel.
Q. Did Cuhorst always have such defense counsel who took their work seriously or who made particulars? What did you do to those?
A. As I said before, Cuhorst wanted concise and effectual pleas and he was always accessible to such pleas, although when people became too long-winded he lost his patience. The most important thing to him was to have the trial as concise as possible, to go into all essential matters but have it as brief as possible.
Q. You said just now that you had heard that Cuhorst only under the law against Poles had sentenced to Pole to death. Have you also heard that from a statement of the time or did you hear it by submission of the prosecution or how did you hear that?
A. I heard this only in the course of these trials.
Q. By whom?
A. I don't know whether I had it from defense counsel but as far as I know Mr. Einstein put this to me.
Q. Can you recall whether you have heard it from the point of view of what is known as fuehrer information?
A. I heard nothing of the fuehrer information.
Q. Did you frequently take part in cases against Poles-in serious cases I mean?
A. I participated in a few cases against Poles.
Q. Were those serious cases?
THE PRESIDENT: Mr. Counsel, the re-direct examination should be limited strictly to the covering of such matters as came up in the cross-examination. These general questions exceed the proper scope of re-direct examination. You will limit yourself to the clearing up of any matters which were dealt with in the cross-examination.
BY DR. BRIEGER:
Q. I shall now come to the problem of Winter and Eckstein. Can you recall, witness, who were the defendants and of what nationality they were? Will you please give us the details?
A. There were four defendants, including Eckstein who was not a gypsy, and another three gypsies. As I remember it, the prosecution suggested death penalty for all four of them. The death penalty was pronounced against Winter and Eckstein, whereas the other two gypsies were given terms in a penitentiary as far as I remember.
Q. Do you know anything about the fact that the population, particular the "Oberland" was highly indignant as to what these people had done and why?
MR. LAFOLLETTE: I object.
THE PRESIDENT: Objection sustained.
If the attitude of the population influenced the judgment, it would be a matter which would not be favorable to your client.
BY DR. BRIEGER:
Q. I shall now like to ask you about the reopening plea for Winter. Was it legally admissible for Cuhorst to make a decision about the plea for reopening, the one which he had reached?
A. I think so, yes.
DR. LAFOLLETTE: I object. I don't see what that has to do with it.
He was only asked about the language that was in the plea.
DR. BRIEGER: The case of Winter and Eckstein has been discussed here down to the most minute details by Mr. Wolleyhan. I can see no reason why I cannot be allowed to ask this question, Mr. Lafollette. I should be grateful--
THE PRESIDENT: Will you state your question again, please?
BY DR. BRIEGER:
Q. In the case of Winter and Eckstein, which has been discussed in such detail by Mr. Wolleyhan, I should like to ask the witness with particular reference to the fact that this point was raised also by the prosecution -- was it legally admissible for Cuhorst to reach a decision concerning the reopening plea in the case of Winter? You have already answered that question. You need merely repeat your answer.
A. My opinion is yes.
THE PRESIDENT: Your objection is overruled.
BY DR. BRIEGER:
Q. With reference to the case which I have discussed with you on direct, the negotiations on Saturday, did you ever meet Cuhorst in Stuttgart?
MR. LAFOLLETTE: To which I object, your Honor. It was not touched on in cross-examination. It is a repetition of direct examination.
DR. BRIEGER: There is no r petition. I would like to venture however, to just touch on the thing which were touched on before, only I want to clarify this point in order to avoid a misunderstand. I do not ha e another object at all.
THE PRESIDENT: Your question seems to be a preliminary one as to whether he ever saw Cuhorst in Stuttgart.
DR. BRIEGER: No, no, your Honor. The question is whether at any time the witness took part in the Saturday negotiations in Stuttgart with Cuhorst.
THE PRESIDENT: This matter was adequately covered. The witness said Cuhorst couldn't have been in Stuttgart on the Saturday concerning which you are interested.
The answer has been given end it was a clear answer. You needn't repeat it.
DR. BRIEGER: I have no further questions with this witness.
THE PRESIDENT: The witness is excused.
DR. LAFOLLETTE: May I have one further question in re-cross examination?
THE PRESIDENT: Well, what is your question? It is a little cut of -
MR. LA FOLLETTE: just a moment.
DR. BRIEGER: Pardon me a moment. I am not a narrow-minded man and on occasion I bid not make objections when Mr. La Follette did, but he has made such a habit now of that, that I want to make an objection before Mr. La Follette puts his question lest there is any suspicion that I am afraid of any special answers to any special questions.
THE PRESIDENT: The matter of asking the further question on cross examination after the re-direct examination is purely one in the discretion of the Tribunal. Your objection is premature and we will hear your question. If it seems to be material, we may permit it to be answered but it is out of order and it is dependent solely on the discretion of the Tribunal.
RE-CROSS EXAMINATION BY MR. LA FOLLETTE:Q.- The witness testified on redirect that the defendant Cuhorst was only spoke for too long a time.
I would like to ask him to what these -- how long these defense counsels spoke before the defendant Cuhorst considered it to be too long a time?
DR. BRIEGER: I have no objection.
THE PRESIDENT: There being no objection, the witness may answer.
A.- Of course that varied. That depended -- It depended -
THE PRESIDENT: ... on the circumstances.
DR. BRIEGER: I think I have just one question. (Laughter)
THE PRESIDENT: I think we will call the examination closed and the witness may be excused.
MR. LA FOLLETTE: No further questions.
DR. BRIEGER: Your honor, if the Tribunal please, may I now continue with submitting my documents? May I be excused for five minutes so that I can have than fetched?
THE PRESIDENT: Mr. La Follette, I think we stopped just after inhibit 14 was offered and before it had been received. Did you have any objection to Exhibit 14?
MR. LA FOLLETTE: I think that is right. I would like to look at Exhibit 14 for a minute.
THE PRESIDENT: It is the verdict in the case.
MR. LA FOLLETTE: Yes, Your Honor. I will wait until Dr. Brieger returns. I just want to make an observation about this exhibit. I will wait until Dr. Brieger returns.
If Your Honors please, on Document No. 7, which is Exhibit 14, we find handwritten marginal notes in German which apparently were not translated. I would like to have those read and considered as a part of the exhibit. They are a part of the exhibit now.
DR. BRIEGER: I should like to make a statement about this. On several verdicts which I have submitted or shall submit, they are probably only those which come from a certain collection, namely by the assistant judge Dinkelacker whose name appears on the first page of the verdict -there are some handwritten notes in a few cases. These handwritten notes I have not had copied because in no way can it be found cut on what occasion they .ere written down and by whom. In my opinion, they cannot be part of the document because a verdict such as it is signed by a judge in German usage-and I am sure it is the same in the United States -- is always typewritten. So therefore, nobody can find out, and I am sure it is quite impossible that these notes were on it when the judges signed it.
I think these notes are completely uninteresting.
THE PRESIDENT: Counsel has no discretion to eliminate from a document, from a page of a document which is set forth as an exhibit, the handwritten notes. They may be read, rather than recopying your document, and you may give any explanation which you can produce through evidence as to the nature of those handwritten notes but counsel is entirely within his rights in asking that we be informed as to what actually appears, on the original, which is the German original.
DR. BRIEGER: It appears on the original and I would not have considered myself justified in eradicating them, but I did not make it a part of the mimeographed copy. I think Mr. La Follette asked me about the details of the notes. May I just tell him about this?
THE PRESIDENT: The answer is this. The exhibit will not be received unless the handwritten notes are either read or produced on the copies. Counsel for the prosecution has indicated that he will be satisfied to have them read.
MR. LA FOLLETTE: I will be satisfied to have them read by the interpreter into the record.
THE PRESIDENT: Let it be done. It may be read by Dr. Brieger and interpreted as well.
MR. LA FOLLETTE: Very well.
DR. BRIEGER: Again -
MR. LA FOLLETTE: Read it in German.
DR. BRIEGER: Again -
MR. LA FOLLETTE: Excuse me, Dr. Brieger, it isn't that I don't object but I think it would be more orderly if you read it in German and the official translator translate it.
(Dr. Brieger read the passage in German and it was translated as follows:)
THE INTERPRETER: But in reply to the prosecution, Cuhorst is of a different opinion. Nullity Plea unsuccessful inasmuch as the defendant has died a natural death in consequence of the incident.
MR. LA FOLLETTE: Thank you.
THE PRESIDENT: The Exhibit is received.
DR. BRIEGER: may I just find out whether on this document there are other notes? No, there are not. I shall now submit Cuhorst Exhibit No. 15, which is document No. 16 in Document Bock 1-A. This is Cuhorst case 46.
This is the much discussed verdict against Christian Oosterle of 21 December 1942.
THE PRESIDENT: The Exhibit is received.
DR. BRIEGER: May I just find out whether there are any notes on this? I shell new offer Cuhorst Exhibit No. 16 which is Cuhorst Document Ho. 20 in Document Book 1-B. This is Cuhorst case 47 and this has also been frequently discussed. It is the verdict against Hepting and others of 25 November 1941.
THE PRESIDENT: Would you be so kind as to also give us the page when you give the other material? We understand Exhibit 16 to be your Document 20 in Book 1-B at page 41?
DR. BRIEGER: Yes.
THE PRESIDENT: It is received.
DR. BRIDGER: Cuhorst Exhibit No. 17 is Document No. 21 in Book 1-B on page 67, which is Cuhorst case 46. This is the much discussed verdict in the case of the driver Herzer of 28 of August 1943. He was indicted for a renewal offense.
THE PRESIDENT: The Exhibit is received.
DR. BRIEGER: Cuhorst Exhibit No. 18 is document No. 17 in Document Book 1-B on page 1. Verdict against Charlotte and Alfred Grassmann cf 11 may 1944. This is Cuhorst case 50. This was a woman living under false pretenses and the defendant had made detailed statements on it.
THE PRESIDENT: The exhibit is received.
DR. BRIEGER: Cuhorst Exhibit No. 19 is Document No. 41 in Document Book 2, page 45, and it is an affidavit by Christine Frey of 12 June 1947.
THE PRESIDENT: That is your Document 41?
DR. BRIEGER: Page 47, Document No. 41.
THE PRESIDENT: Thank you.
DR. BRIEGER: This is Cuhorst case No. 52. The case of the arson.
THE PRESIDENT: The exhibit is received.
DR. BRIEGER: Cuhorst Exhibit No. 20 is Document No. 45 in Document Look II on Page 5, an affidavit by Dr. Karl Hartmann of 28 February 1947. It concerns Cuhorst Case 56.
We think that this is a particularly important affidavit because it originates from the defendant and it explains that Cuhorst would not consent to strangling political opponents, particularly not in a case when personal documents were involved.
THE PRESIDENT: The exhibit is received.
DR. BRIEGER: Cuhorst Exhibit No. 21 is Document NO. 59 in Document Book II on Page 106. This is Case 62.
MR. LAFOLLETTE: I have an objection to this document for the reason that the signature is taken by the husband of the affiant, although sub-paragraph 3 of Rule 21 says that the witness shall Lave signed the statement before a Buergermeister, the Buergermeister having certified thereto in case neither the defense counsel nor a notary is readily available without great inconvenience.
It is obvious that that rule was made for small towns where there was no notary. I think the Court will take judicial notice that the City of Ulm is large enough for this woman to have subscribed this affidavit before someone other than her husband.
DR. BRIEGER: We such restriction is provided for in the rules and I do not see why such a restriction should be applied. I have on several occasions had affidavits to submit which have been taken down by Buergermeisters and in very isolated cases I would be deeply embarrassed if, from that point of view, one or the other of the affidavits should be disallowed.
MR. LAFOLLETTE: The Tribunal, of course, made its ruling, but Dr. Brieger, of course, is in error. Subparagraph 3 of Rule 21 says: "The witness shall have signed the statement before a notary and the notary shall have certified thereto." Then it says that if no notary is available some showing is made that it may be signed before a Buergermeister. My contention is that Ulm is big enough so that there could have been a notary found.
DR. BRIEGER: The officials have hold themselves for the purpose to identify the signature. I would think nobody would be more suitable to identify the signature of his own wife than the husband. He is hardly likely to make a mistake about his own wife's signature.
THE PRESIDENT: Possibly counsel doesn't apprehend the real nature of the objection to the family transaction.
DR. BRIEGER: Yes.
THE PRESIDENT: We will examine the document and the certification and pass upon it after the recess. May we see the document, please? Well, we can examine the copy. It is not necessary to give it to the secretary. Dr. Brieger, do you challenge the assertion of the Prosecution that there is a notary in the city where this statement was made?
DR. BRIEGER: I never was there in Ulm. Accordingly I am not familiary with the locality.
THE PRESIDENT: And you don't know whether there is a notary there?
DR. BRIEGER: No, I don't know.
MR. LAFOLLETTE: It is a city of 80,000 to 100,000 inhabitants, your Honor.
DR. BRIEGER: May I have for a moment the affidavit of Mrs. Scholl? I didn't give the date to the bench. Do you have it, sir? I don't know when it was that Mr. LaFollette interrupted me and, therefore, in the case of this particularly important affidavit I'd like to repeat the passages.
I shall nor submit to the Court Exhibit No. 21, which is Cuhorst Document Ho. 59 in Document Book II on Page 106. This is an affidavit by Magdalene Scholl of 3 May 1947. This is Cuhorst case 62. I regard this document as the most important among all my documents referring to political cases.
THE PRESIDENT: The Tribunal has reserved its ruling until we can examine it more carefully. Let it be marked for identification Exhibit No. 21.
DR. BRIEGER: Complying with the Tribunal's wish I shall not submit Cuhorst Exhibit No. 22 which would have boon Document No. 33 from Document Book X on Page 5, which is the affidavit by Cuhorst about his activity in the Alpine Club. I do not submit it. I simply mention it now, lost there be a misunderstanding about one exhibit number being left out.
I shall now submit Cuhorst Exhibit No. 23, which is Document No. 1 in Document Book I-A on Page 1. This is the original of the verdict in the case against Petrus Brok of 15 December 1944. Lost I be reproached with anything later on, there is again another handwritten note.
THE PRESIDENT: The exhibit is received.
MR. LAFOLLETTE: If you Honor please, there is a note on that which we would like to have the Court hear.