Q Witness, how many death sentences did the First Senate of the district court of appeal Stuttgart pronounce in 1937 to 1944 while you were presiding judge. I hope that by this question I can now finally clear up the temporary misunderstanding in the mind of the Presiding Judge of this Tribunal.
A For the time from 1937 to 1940 I found out the following with absolutely certainty: Seven death sentences were pronounced by the First Senate while I was presiding judge. They are the following numbers in the death sentence list submitted by Schwarz--Numbers 2, 19, 36, 37, 113, 114 and 115, and an eight death sentence was pronounced outside of town. But I do not know wither the year it was pronounced not the name of the defendant. All of the defendants who were condemned to death were Germans and all of the offenses were crimes which were committed within Germany.
Q I shall not discuss these criminals cases in detail now. We shall come back to them later on. Did the Special Courts of Stuttgart in a political case for any legal reason whatsoever pronounce a death sentence?
A No.
Q Did the Special Court of Stuttgart because of a crime committed abroad pronounce a death sentence against foreigners?
A Never.
Q How was it that the practice and decisions of the district court of appeal of Stuttgart in criminal cases differentiated from that of the Special Court?
A It differed in the same way as the sentences of the Special Court of Stuttgart were on the average considerably lower than those pronounced by most of the other special courts; the same way it was with the First Penal Senate; in comparison with the other district courts of appeal.
I add that all of the judges of the Penal Senate, except for one elderly District Court Councillor, who was mostly ill, were members of the Special Court too.
Q Witness before I go into the next question, may I ask you do you have Exhibit 178, NG-676, Volume 111-E before you?
A Yes, I have it before me.
Q That is a prerequisite for my question. What do you conclude in regard to the practice of the court, that is the district court of appeal of Stuttgart, from this decree?
A The document that I have before me is the record by the Reich Minister of Justice of 5th July, 1944, Roman numeral IV, GI 5045-1944. The decree was submitted as a document by the prosecution. I supplement it as follows: In my opinion the author of this decree was Ministerial Councellor Franke, in Division IV of the Reich Ministry of Justice. The effect of this decree isssued by Franke on the judges whom the president of the district court of appeal had to inform about it was very strong. The judges apart from myself became very much excited, especially by having their names mentioned. From the decree, which probably started my removal, the following is certain: That of the First Penal Senate while I was presiding judge, nine cases pronounced by it were severely criticized, and only three pronounced by the second senate. The more lenient jurisdiction by the First Senate is due to the fact that for cases of undermining of military morale we had applied the standard of the offenses against the malicious acts law to. Those were cases which the special court dealt with constantly. In many cases we could hardly differentiate between offenses against the malicious acts law and cases of undermining of military morale.
Q Witness, do you know of any further decrees of this nature regarding the special court. Please comment on the guidance of justice, as far as you want to supplement the remarks already made by you on this subject.
A My predecessor already became the victim of such decrees in 1937. In the Special Court reproaching decrees were almost a daily occurrence. Later on these decrees were replaced by nullity pleas unfavorable for the defendant. In the Penal Senate it was quite similar. Here decrees and extraordinary objections especially, since Ministerial Counselor Franke alternated the new element in the decree of July 1944, was the Frank's naming of all judges in connection with the most severe criticism of their sentences because of too much meniency. Other guidance decrees which have already been submitted in this trial were of an impersonal nature; for example, the guidance decree to the Hanseatic court of appeal in Hamburg of 1st March, 1945, Exhibit 474, NG-527, supplement to Volume III-B.
Q Witness, if you were speaking of -- meaning now that already your predecessor had repeatedly received such decrees, or rather that they concerned him and that he became a victim of such decrees, I assume that you are here speaking of events which you have already mentioned in connection with your appointment to the special court; in other words, that Flaxland was the victim?
A Yes, that was the district court director Flaxland.
Q Was the jurisdiction of the Stuttgart court, in particular I am speaking of the Special Court, and also of the Penal Senate, influenced by such decrees? What was your personal attitude about them.
A The jurisdiction of the Penal Senate and of the Special Court remained unchanged. I am fortunately in a position in regard to the sentences from 1937 and my last orders of November, 1944 to be able to prove my statements by referring to them. Inspite of the constant reproach to be more severe, the course of which has already been discussed here, no judge of the Penal Senate and the Special Court deviated from the line which existed already at the time of director Flaxland. In order to protect myself against these serious inner burden of being incited to more severity I rejected all that was received from the administration of justice, for all dealing with these decrees would have made me dependent as a judge. The final result was clear to me, and as I have already mentioned, I lasted for almost seven years.
Q One witness stated that you were in favor of death sentences as often as possible. Did the Special Court always pronounce a death sentence if the prosecution asked for them or intended it?
A No. In the majority of cases the Special Court did not comply with the motion made by the prosecution as to a death sentence. In many cases the Special Court also would convince the prosecutor at the time that the death sentence which could be gathered from the indictment could not be asked for by the prosecution since the case was quite difficult.
Q Do you still remember the name of the witness who had made that statement? Have you just forgotten it?
A Unfortunately I don't have the document with me.
Q Can you cite individual cases in which inspite of the fact that Berlin made an application for it, or instrued to that effect, the death sentence was not pronounced?
A I can cite several dozen of such cases.
Q May I interrupt you . . . .
A By merely referring to the means that I have here, that is to say, my memory and a number of documents and notes, I can cite dozens of these cases.
Q Did the Special Court Stuttgart while you were presiding judge pronounce a death sentence once when the prosecution had not asked for it?
A Nut a single case, even though legally this would have been absolutely possible.
Q Could the court in every case not pronounce a death sentence?
What was the situation?
A If the facts of the case, of an offense that should be punished with a death sentence had been determined, then the death sentence had to be pronounced if the death sentence was mandatory. This situation arose not infrequently.
Q Did the clemency agency have to review whether the sentences were just? Was the granting of clemency a replacement of legal means of recourse, or legal aids against wrong or unjust judgments?
A The granting of clemency was not a replacement of legal recourse and legal aids. The court itself in the sentence only had to lay down, the state's requirements of penalty. The requirement itself was carried out outside of the legal sphere, that is executed; and only on this level, on the level of the legal leadership of the state, that is the administration of justice, does the clemency proceeding move.
Q Did the Senate, the Penal Senate or the Special Court ever try a case against a full Jew?
A Never.
Q Did they try cases against POWs or interned persons?
A No.
Q Outside of the Winter/Eckstein case did you have any other cases against racial Gypsies?
A No.
Q Were the courts in any form, by any office, required to pronounce death sentences for the extermination of Jews, gypsies or foreigners?
A Not at all.
Q In exhibit 418, NG-491, Volume III-K, page 58, the witness Dr. Arnold Klett testified that you "find it to be a special pleasure in the case of executions of the death sentence, to be present with a stop watch in your hand in order to time the execution," by way of repeating his own words. I now want to ask you, were you present when death sentences were executed?
A During my entire life time I was present only once when I was a student at an execution of two robbers and murderers, by the names of Rufner and Goert, who in 1920 by the jury court in Stuttgart had been sentenced to death. Since that time I was not present at any other prosecutions.
Q I have in my hand the two affidavits by the witness of the prosecution Klett. That is the affidavit which has no certification, and was not submitted to the Tribunal because at that time I objected to it, and the second one bearing the date of 3rd of November and the affidavit was submitted much later, that is the one of 7th April; that was taken much later, 7th April 1947, Exhibit No. 418; and now I ask you, witness, do you want to make any further explanations about it? Therefore, I am submitting the affidavit to you.
A These two documents, that is Exhibit 218, and the one that was not submitted, both of the 3rd November, 1946; I have here and also the affidavit taken 7th April, 1947. I can see that in the affidavit that was not submitted, that is in the letter it says, that I found it "to be a particular pleasure in the execution of death sentences, as it is said, stand with a stop-watch in my hand to work there."
The affidavit which was submitted, the statement made by the witness Klett, has the phrase, "with the stop-watch in my hand", was on the original omitted, and later on it was again included. That is all, that I can say without evaluating these documents by reading them.
Q By referring to this affidavit, which was introduced by the prosecution, I now refer to the submitted document by Oberbuergermeister Klett which he gave to me, and which I signed or rather certified on 26th of May, 1947. I want to spare the Tribunal even though it is very important for me, to read the entire affidavit, but perhaps I may read the two most striking passages. Arnold Klett, lord mayor, states here, declares under No. 1, "my testimony, that Cuhorst in the execution of death sentences."
Mr. LaFOLLETTE: If Your Honor please, as I recall, this affidavit was given while Klett was in the city, and I objected to it being taken earlier, or being used earlier, on the grounds that Klett was here to testify. I don't recall the circumstances under which he departed from Nurnberg. For that reason I object to the affidavit because the witness was here in Nurnberg and competent to testify, I think, at the time the affidavit was given. If I am mistaken in that I will withdraw the objection, but from my memory I object on that ground.
DR. BRIEGER: May I answer the objection made by Mr. La Follette in a few words?
Mr. La Follette starts with the assumption, absolutely correctly, that the affidavit was given at a time when Klett was here. I still recall the day; it was the second day of Whitsuntide. In that connection, however, may I point out that at that time the prosecution had raised an objection and that objection, as far as I know, was dealt with completely by the ruling which was made by the then presiding judge, the Honorable Judge Marshall, and he dealt with it in favor of our opinion.
Furthermore, since Mr. Einstein has just made an appearance here, may I say that at that time I accompanied Mr. Klett to the door of Mr. Einstein's office, who interrogated Mr. Klett at that time and who had every opportunity to relate his misgivings to Klett. As I have already stated, that was at the time when Judge Marshall was still presiding judge.
MR. LA FOLLETTE: I don't know that we are concerned about what Mr. Einstein might have said to Mr. Klett. It may be well that the Court reserve its ruling until we can see what the transcript says, I don't remember definitely. But I would be satisfied if that would be the temporary ruling of the Court until I can look at the transcript.
THE PRESIDENT: We will permit counsel to search the record and let us know what the situation appears to have been in the record. In any event, counsel is attempting to read an exhibit which has not been offered as yet as an exhibit, and that is improper.
If you have an affidavit and if the affidavit is admissible, it should be offered as such before you read it.
DR. BRIEGER: I wanted to offer it at the moment only for identification. May I reserve the right to read the passages in question until such time as I submit the document officially to the Tribunal?
THE PRESIDENT: When the exhibit is received, if it is received, you may then read the necessary portions; you will not read them before that time. We will reserve our ruling until we have further report on the facts.
DR. BRIEGER: I beg you to excuse my mistake; it was unintentional.
THE PRESIDENT: May I ask you, what identification can you give us for the instrument which you are intending to offer in evidence? Has it a number?
DR. BRIEGER: Yes, Your Honor.
THE PRESIDENT: What is it?
DR. BRIEGER: That will be Cuhorst Document No. 48, bearing the Exhibit No. 6.
THE PRESIDENT: You mean which you intend to offer as Exhibit 6?
DR. BRIEGER: That is exactly the situation.
THE PRESIDENT: You may proceed with something else.
DR. BRIEGER: Yes.
BY DR. BRIEGER:
Q.- When, where, and by whom were you interrogated for the first time? How did the interrogations start? In that interrogation were you asked about the manner of handling cases by other judges and prosecutors?
A.- On the 10th of December 1946, at 1720, in Nurnberg, I was interrogated for the first time in this case by Mr. Einstein. The interrogation started with a very violent clash, and then it took a more or less excited course. At that time I was not interrogated about other judges and prosecutors, nor later on.
Q.- Have you finished your explanation?
MR. LA FOLLETTE: If Your Honor please, I ask that the answer be stricken. I have just been advised of what I thought was the state of the record, that there is no evidence in this record whatsoever, offered by the prosecution, based upon this interrogation. And, for the further reason that the answer which the witness has given as to whether or not he was asked what other special courts have done would have been entirely immaterial under any circumstances, I ask that the answer be stricken. It is not pertinent to this record at all.
DR. BRIEGER: I can understand Mr. La Follette being of the opinion that the question is irrelevant. I probably would think the same way if I did not have a general view of the context. During the examination of the witness it will become clear under what point of view I put the question.
May I postpone everything else until such time as it becomes clear? At least, the question is certainly not irrelevant or unimportant.
THE PRESIDENT: Well, do you contend that there is any exhibit which has been offered here and received, and which is based on an interrogation by Mr. Einstein?
DR. BRIEGER: Your Honor, the issue is this
THE PRESIDENT: Will you answer my question first? And then tell me your reasons afterwards.
DR. BRIEGER: Yours Honor, may I postpone answering the question until I have discussed this matter with my client again, in order to be able to give you an answer that is tenable, and, in particular, because I want to be careful in my answer?
THE PRESIDENT: Your client has nothing to do with this question. The question is whether, in evidence in this case, there is any document or affidavit or statement by the defendant Cuhorst which was taken by or before Mr. Einstein.
That is a matter of record.
DR. BRIEGER: Your Honor -
THE PRESIDENT: If you don't know the answer, you may state that you don't know it.
DR. BRIEGER: Your Honor, I can say this much, namely, this is what I know, and I hope this will satisfy you.
I shall introduce an affidavit here which will make it apparent when the witness concerned was interrogated by Mr. Einstein; and as to what he has to say about the interrogation by Mr. Einstein, when Cuhorst was interrogated, is important. If this does not seem to have sufficient relevancy for the Tribunal, I am ready to go into further details. However, I would like to postpone this for a later time. It is very important as to when Cuhorst was interrogated.
THE PRESIDENT: I have yet to hear whether any document has been offered or received in evidence which was a statement by this witness and which was taken before Mr. Einstein. Are you able to answer that question or are you not able to answer it?
DR. BRIEGER: Yes, now I am able, since I have conferred with my client. Yes, yes, that is the case.
THE PRESIDENT: There is such a document?
DR. BRIEGER: Yes, there is such a document.
THE PRESIDENT: It is in evidence?
DR. BRIEGER: Yes, it was also submitted in evidence. Cuhorst just indicated that to me.
THE PRESIDENT: The record will show that; it is just a question of the record.
DR. BRIEGER: Yes.
THE PRESIDENT: Get your evidence together, gentlemen, and present it at the next session of the court.
MR. LA FOLLETTE: The Court will reserve its ruling on this?
THE PRESIDENT: There certainly is nothing to rule on at this time.
Counsel certainly ought to be able to agree as to whether there is an exhibit in evidence of the kind I have described. If they can't do it, we will submit the question to the Secretary General and let him ascertain the facts.
BY DR. BRIEGER:
Q.- Witness, in the fall of 1941, did you ever, during a trial or before a trial in Siegmarigen, state: "Gentlemen, voila, now to butchering!?
A.- This doubtful trial, about which the witness Schwarz testified from hearsay happened in the spring of 1941 -- I neither made that alleged statement literally, nor did I say anything that had the same meaning.
Q.- The witness Rimmelin said, in answer to a question by Mr. La Follette--English transcript page 2052-- that on the 30th of September 1944, the South Section of the building of the Palace of Justice in Stuttgart was burned, and that the northern section remained intact. Do you know the Palace of Justice in Stuttgart very well, and is that correct?
A.- I have known the building of the Administration of Justice in Stuttgart since my childhood. Here Rimmeling was absolutely mistaken. The northern part was burnt and destroyed, and the part that remained intact was the southern part.
DR. BRIEGER: May it please the Tribunal, after an examination of more than two hours, I have concluded the general part, and I now come to a discussion of individual cases.
I leave it up to the Tribunal as to whether it desires to go into this entirely new group of problems now.
THE PRESIDENT: Just a moment.
DR. BRIEGER: Yes.
THE PRESIDENT: Dr. Kubuschok, the Tribunal, in your absence, excused your client Dr. Schlegelberger. That is at your wish and desire, is it not?
DR. KUBUSCHOK: Yes.
THE PRESIDENT: That we should excuse him?
DR. KUBUSCHOK: Yes.
THE PRESIDENT: The Tribunal will recess until next Tuesday morning at 9:30.
(At 1630 hours, 29 August 1947, a recess was taken until 0930 hours, Tuesday, 2 September 1947.)
Court No. III, Case No. III.
Official Transcript of Military Tribunal III, Case III, in the matter of the United States of America against Josef Alstoetter et al, defendants, sitting at Nurnberg, Germany, on 2 September 1947, 0930, Justice James T. Brand presiding.
THE MARSHAL: Persons in the Courtroom will please find their seats.
The Honorable, the judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you ascertain if all the defendants are present in the Courtroom?
THE MARSHAL: May it please your Honors, all the defendants are present in the Courtroom with the exception of the defendant Rothaug, excused at his own request, and defendant Rothenberger, absent due to illness.
THE PRESIDENT: Notation will be made that defendant Rothaug is excused, as the record already has shown.
DR. BRIEGER: May it please the Tribunal, may I continue with the examination of my client Cuhorst?
THE PRESIDENT: You may proceed.
DR. BRIEGER: First of all, I would ask you to forgive my sins. The other day I was not quite sure whether the Cuhorst affidavit which was referred to at the end of the examination on Friday was introduced or not. I now have clarified the question, and the facts perhaps will explain why I was not able immediately to answer the Tribunal.
We are concerned with the affidavit which I had already repeatedly mentioned at the beginning of the examination of my client, namely affidavit NG-644, Document Book 3, supplementary volume, page 49, Exhibit 475.
I would like to mention **** the essential point and this is the reason of my error.
In this affidavit Einstein does not make an appearance. The certification is made by another gentleman, if I remember correctly a gentleman by the name of Beauvais or something like that, and Cuhorst tells me that the sequence of events was approximately as follows:
He was interrogated by Einstein, Mr. Einstein, and only-
THE PRESIDENT: Who is the witness concerning whom you are speaking? What is the name of the witness?
DR. BRIEGER: The name of the witness, your Honor, is Cuhorst.
THE PRESIDENT: Oh, you are referring to an examination of Cuhorst?
DR. BRIEGER: Yes, I do.
THE PRESIDENT: And of *** affidavit that was taken?
DR. BRIEGER: By Mr. Einstein but in the formal manner the affidavit was taken by somebody else.
THE PRESIDENT: I see.
DR. BRIEGER: In other words, the interrogation was conducted by Mr. Einstein but the person who certified the document is another gentleman whose name as I already mentioned is Beauvais. Then, your Honor, perhaps I may also by way of introduction with a view to the objection by the prosecution on the occasion of the submission of my affidavit by Lord Mayor Klett, I had already referred to the ruling which the Court made at that time; and in order to save the Tribunal the effort to look for itself, I looked for the pertinent place in the transcript. May I read it briefly?
With a view to the fact that the way the English transcript has been typed is much better than the German, I prefer to read the English transcript and therefore I shall quote from the English transcript.
We are concerned with the transcript of the 27th of May, page 3705. I may emphasize, and this is apparent very easily from the transcript from the preceding pages that at that time this ruling took place, as far as I remember while Judge Marshall was still presiding judge and it arose due to the Klett affidavit. Thus it refers to this particular case. I now would like to read the question from the transcript. Please switch me over to the English channel, for I shall read in English.
"Before beginning with this witness, there has been quite a little discussion about the witness who was hear and went home. Now the Tribunal is of the opinion that there was a ruling that the counter affidavit could be taken in lieu of cross-examination, provided the counter affidavit doesn't go beyond the range of the original affidavit. That witness was sent home and they believed that they were complying with the rule that was then made."
We are using the plural here because originally I had also let Witzigmann go home but later on he was still examined.
"That being true, we will adhere to that rule but in future cases, since there is an issue made about the rule, the rule will now be this, that if a witness is brought here, he must remain here to have his testimony taken. He can't be excused by one side or the other without some action on the part of the Tribunal. Does that make it clear?"
Now the prosecution referred to another ruling and this ruling is in the transcript of the 8th of July, English transcript page 4877. It says: "Thus here in the morning session of the 8th of July on the page of the transcript 4877..." The President as far as I recall this was his Honor, Judge Brand. "..before we proceed further, the Tribunal has considered a "practical problem concerning the examination of witnesses for the defense and the employment of affidavits.
We are sure that counsel for both sides have recognized and do recognize that an affidavit is a very poor substitute for direct examination. We have concluded that when a witness is physically present and present in the course of the presentation of the defense cases of the defense, we will expect all defendants who desire to examine that witness by their attorneys to do so in order that it will not be necessary to call the witness back to the witness stand in connection with the case of each separate defendant."
I think that, and I hope that I understood the case correctly to mean that it refers only to the future. Accordingly, it would be absolutely in accordance with the ruling which has already been made in the session of the 27th of May, but at that time an express exception was made in regard to affidavits which had already be taken and in that connection I now want to mention as the most important thing that the document that I shall submit today was already taken on the day before the first ruling and that is on the 26th of May. I now take the liberty--I leave this matter up to the Tribunal for decision.
THE PRESIDENT: If counsel would state before beginning his argument the exact point to which he directs his argument, it would be of great assistance to the Court. Now you are discussing an affidavit which you desire to offer and that affidavit is signed by whom?
DR. BRIEGER: Is taken by whom?
THE PRESIDENT: No, who made the affidavit?
DR. BRIEGER: Dr. Klett, now the Lord Mayor of Stuttgart.
THE PRESIDENT: And that affidavit was taken on May 26?
DR. BRIEGER: Yes, your Honor.
THE PRESIDENT: Do you know how long Klett was here?
DR. BRIEGER: Your Honor, I-
THE PRESIDENT: During the time when the defense could have examined him as a witness?
DR. BRIEGER: Your Honor, I remember exactly the situation because the trouble arises for the certain reason that the day he arrived in Nurnberg was a legal holiday in the German sense. It was the second holiday of what we call Whitsuntide and accordingly the Court was not in session and the man was in a great rush on account of pressing business in Stuttgart and I accordingly yielded to that special situation.
THE PRESIDENT: Have you the affidavit here?
DR. BRIEGER: Yes, your Honor. Your Honor, I now shall have the affidavit submitted to you.
MR. WOLLEYHAN: Does this constitute an offer?
DR. BRIEGER: No, I understood your Honor only in the respect that he wanted to see it. In other works, it was not a proposal on my part.
THE PRESIDENT: This is the German copy. You haven't the English copies? You are not prepared to offer the exhibit now?
DR. BRIEGER: I think I shall be during the day, already today. I kept all the time very much after my document book and that for the period of the last four weeks and just the same, unfortunately, I didn't succeed to receive all of them.
THE PRESIDENT: We will not rule on it until it is offered formally.
DR. BRIEGER: Yes, Your Honor. May I continue now?
THE PRESIDENT: Yes.
DR. BRIEGER: And before I now go over into the actual examination of Cuhorst again, may I still make the following remark which does not seem to be entirely unimportant to me either? The other day I told the witness that he had made out an affidavit and I read a certain passage from it to him, and this remark is directed not only to the Tribunal but also to the translators, and I would like to say that the work "unschaedlish machen" and not with "exterminate" - to render innocuous.
Now I want to go over into the actual examination but before I do so, I would like in order to enable the Tribunal to have a better survey of the of the cases which Cuhorst was concerned with, and which we shall discuss -- I shall submit a list of the cases that I shall deal with. Of course, I also have made ready the necessary copies of the list for the gentlemen of the prosecution. Accordingly, may I hand a copy to the Tribunals and also to the prosecution? I assume that the representative of the Secretary General would also like to have one, and therefore I have another copy for him. Naturally, I made all the notes in English. Otherwise, the list would only be of half the value.
DIRECT EXAMINATION BY DR. BRIEGER:
Q. Witness, the witness Diessem and also the witness Eberhard Schwarz discussed the case of a foreigner named Englart who in 1943 was sentenced to death for spoliation. I am referring to the pages of the transcript 2,263, 2,274, and 2,329 of the English transcript. I quote continuously from the English transcript. I hope that I don't have to mention it in every case, that it is the English transcript I am Court III, Case III.