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.
-1-7 referring to.
Witness, do you know the Englart case?
A. I do not know the Englart case. The case was on the 24th of March in 1943 under the presiding judgeship of District Court of Appeal Counselor Judge, Dr. Stuber. I was not presiding judge.
Q. Witness, I now shall discuss the second case. I shall quote the figures of the individual cases in order in each case to enable the Tribunal and also the prosecution to order themselves more quickly.
Court No. III, Case No. III.
Second case on the 5th of May, 1943, a certain Franz Kudelka was sentenced to death by the Stuttgard Special Courts. Do you still remember what was the situation in that case?
A. Franz Kudelka was sentenced to death in Ulm on the Danube on the 5th of May, 1943, while I was presiding judge. Kudelka was probable a Czech citizen but he was from Vienna. He was in charge of the baggage section in the railroad station in Ulm on the Danube. For months, under the protection of the blackout, Kudelka robbed the baggage cars of the trains; by that he caused damage of about 30 thousand marks and among other things he repeatedly stole Red Cross baggage of fallen soldiers and valuable baggage, suitcases of Dutch officers who were prisoners of war and robbed them.
The Kudelka case was up to that time the must serious case of train robbery that had occurred in Wuerttemberg and the Court, in accordance with the prevailing jurisdiction, on the basis of the public enemy decree because of theft, sentenced him to death.
Q. May I continue, witness? Case Number 3--the witness Eberhard Schwarz on page 2,261 of the transcript, 2,274 and 2,299 of the transcript on Saturday the 16th of June, 1942, mentioned the case Janosz Leszinski which was tried on the 16th of June, 1942. Can you still recall the details regarding that case?
A. According to a newspaper notice, which was submitted to me some time ago, Janosz Leszinski born on October 20th, 1914, on Saturday, the 16th of May, 1942, was sentenced in Stuttgard because of instigating sabotage and other things --to death. I do not know any more about that case. In 1942 and 1943, I never tried cases on Saturdays in Stuttgart. Due to that fact alone, I have to conclude that I personally was not presiding judge.
In this case, there is probably a misconception regarding the presiding judge, the same that occurred to the witness Schwarz in the Englart case and in the death sentence, listed under number 97 regarding the death sentence in the Pfaud case. Also in the Pfaud case we now have evidence to the effect that there was another person presiding judge in this case.
Q. That is all you have to say about it? I assume that in that connection you also want to refer to what you said already Friday afternoon in regard to the date of the sentence and the submission date appearing in the list. In other works, that from the date of the submission of the case, one may conclude as to the date of the sentence but that one does have to differentiate between ****s which were dealt within Stuttgart and those that were dealt with outside of town, is that correct?
A. According to the facts which I have found out the date of the sentence in the Leszinski case, the judgment date was the 16th of May, 1942, and that is correctly stated. Also the date of the Pietra case which is in the death sentence list made up by Schwarz is stated absolutely correctly.
Q. May I address the next question now? The former prosecutor Rimelin on page 2261 of the transcript discussed the case Meicher and Swarowski. Was that a case of murder? As a special cruelty toward the defendant you submitted a skull during the trial, the former prosecutor said. Can you explain this? What was it all about?
A. The defendant Meicher and Swarowski had committed murder and robbery on a gardener in Stuttgart. During the trial, the expert, in order to show the extent of the destruction of the skull, in order to prove it, submitted in a glass bowl pieces of skull which he had during the official post morten taken from the body of the murdered subject.
In cases of murder, official court post mortem is prescribed in the rules of procedure. In this post mortem, not the court where the case is to be tried but the investigating magistrate and the prosecutor are present. The record of the post mortem, however, cannot be read during the main trial; by law it is required that the officiating physician gives his expert opinion orally in court.
In support of his expert opinion, it may be necessary to submit prepared parts of the corpse. The procedure used in the Meicher and Strowbowski case is absolutely customary. And, above all, every prosecutor knows this from years of experience; any cruelty or lack of feeling toward the defendants has nothing to do with this at all.
Q. Now, case No. 5. On the 12th of November, 1942, while you were supposed to have been presiding judge, death sentences were allegedly pronounced against the defendants Milch and Margethei. You remember the testimony of Eberhard Schwarz--pages 2262, 2267, and 2268 in the transcript. What was this case about?
A. The defendants Milch and Margethei were international criminals, whose citizenship could not be determined with certainty. The defendant Margethei, supposedly of Hungarian descent, was a prisoner who had escaped from a French prison in Oran, in Africa. They had gotten together in order to commit robbereis, and they were trained climbers of walls. After they had committed a large number of serious thefts in Stuttgart, under cover of the blackout, they went to Baden-Baden. There, during the night, they entered the home of the Turkish Ambassador and stole valuable jewels from the bedrooms of the Ambassador and his relative while the latters were sleeping. Through an extensive search by the criminal police, the two criminals were caught and arrested, and they were indicted as public enemies. Lawyer Dr. Ruisinger was appointed as counsel by the court.
The date of the opening of the trial was set, with a time limit of about five to six days. Shortly before the trial the defense counsel was given the files; they were brought to his office. He brought me the files, to the judges' chambers, a few minutes before the trial opened. When he did so I told the defense counsel that I thanked him for managing to get into the case and get familiar with it; and I told him that, as he could very well see, according to the confessions of the defendants, it was a very simple matter as to the facts of the case.
One minute later the trial began, and, in accordance with the notion made by the prosecution, it ended in the death sentence for each of the defendants.
Q. Have you finished, witness?
Case No. 6. In the Heinz-Niemes case--I shall later state the pages of the English transcript-the Special Court is supposed to have pronounced a prison term that was one year longer than that asked for. Was this admissible at all?
A. The Court was not hound, by law, by the notions for penalty made by the prosecution, or by the notions for sentences, Occasionally it did happen that in the case of prison terns the Court exceeded the notion made by the prosecution. That is what one supposedly nay assume happened in the Niemes case, and it certainly did happen in the Koehnlein case. The sentence in that case will be submitted later.
The prosecution, as a rule, was annoyed when the Court pronounced a more severe sentence than the motion made by the prosecution, for in such a case the prosecutors were afraid that they would have to answer for it to their superiors. This explains why, in the Niemes case, the prosecutors put a remark in the margin of the sentence which airs their annoyance, but which has nothing to do with the case as such.
DR. BRIEGER: The pages of the transcript in the Niemes case can be seen from the list that I have just submitted, so I don't believe I need to come back to that.
Q. The witnesses Eberhard and Berthold Schwarz, while they were examined before this Tribunal, discussed the Pietra case extensively. I am referring to the transcript at pages 1951, 1971, 2028, 2029, 2041, 2045, 2060, 2,273 and 2,310.
On the 12th of August 1942, while you were presiding judge, a death sentence was allegedly pronounced because of illegal intercourse with a German woman. Do you still recall that case? Exhibit 197, NG-632, in Volume III-E, is the alleged draft of a Fuehrer Information.
Has that any possible connection with the Pietra case?
A. The Stanislaus Pietra case, under the file note SL-317-42, was tried on the 13th of August, 1942, in Stuttgart. According to my findings, the indictment was filed between the 30th and the 31st of July, 1942. The trial lasted approximately three hours. The prosecution intended to ask for a death sentence against Pietra, and therefore the Court assigned an official defense counsel to the defendant, lawyer Dr. Meissner, of Stuttgart. I do not recall anything regarding the details of the indictment. However, I do know with absolute certainty that in the Pietra case the prosecution, to be sure, did ask for a death sentence, but that the Court, however, only pronounced a prison sentence the extent of which I do not remember.
I wish to say this in regard to the Fuehrer Information. This alleged Fuehrer information -
Q. May I interrupt you, witness? I imagine that it is important for you to look at this Fuehrer Information.
(Document submitted to the witness)
DR. BRIEGER: May I perhaps address a request to the Tribunal? For purposes of comparison, I have asked the Administration for another Fuehrer Information, which was submitted in the case against the defendant Rothenberger. Unfortunately, I was unable to receive a photostat of that; I was told that it would take two weeks. I shall employ the recess in order to speak to the representative of the Secretary General who is in this court, and I will ask him whether perhaps he may be able to get this Fuehrer Information for this afternoon so that it can be submitted to my client in the courtroom. I can understand fully that of course they cannot hand it out to me because it is an official document, but I am merely stating this to request permission to make a reservation here, and then I can come back to this case later on during the course of the day.
Q (Continuing) Please continue.
A. The Fuehrer information--a photostat of which I have before me and which is not signed; Fuehrer Information No. 66-is of the 3rd of July 1942. The Pietra case was tried on the 12th of August, 1942. Therefore, the Information is not at all connected with the Pietra case.
Regarding the Information itself, I would like to say that it contains a striking error. The Information states that the age under which girls a.re protected is 14 years. Actually, as everyone who is familiar with legal questions in Germany knows, the protected age of girls is 16 years.
Q By that you mean to say that it is quite an elementary error, which every lawyer who reads the document would notice?
A The error is so elementary that even given the case that the draft of this Fuehrer Information is the original that this information sheet would not have been signed by any Ministerial Official who is familiar with penal law, would not have been submitted to Hitler in this form.
THE PRESIDENT: Was this crime alleged to have been committed against a female person under 16 years of age?
DR. BRIEGER: Did you understand tho question?
THE WITNESS: No, Your Honor, tho Fuehrer Information says that sexual intercourse of a Pole with a Gorman woman could have been punished only if it had been committed by rape, or on a girl in the Protected age. And here it is stated, erroneously, "a girl under 14 years."
THE PRESIDENT: I fully understand that. I am asking you whether the indictment charged that tho crime was committed against a girl under 16.
THE WITNESS: No. In the Pietra case, it was supposed to have been a crime of rape committed on a grown-up married woman.
THE PRESIDENT: You mean by "rape", rape by violence, and against the will of the woman?
THE WITNESS: Yes, rape under violence.
BY DR. BRIEGER:
Q May I ask you this? What statement by the witness Schwarz are you basing this on? Because, during his examination, he charged his attitude towards that case several times.
A Yes, I am basing my statement on the fact that the prosecution, in its indictment, supposedly from the beginning, wanted to achieve the death sentence. Otherwise, I would not have had to appoint an official defense counsel. Thus, I cannot imagine it to have been otherwise than that the prosecution at that time assumed that Pietra, as a public enemy, had committed the crime of rape on the wife of a drafted soldier, if I remember correctly.
Supposedly, during the trial, the case was found to be less serious, so that it was not necessary to pronounce the death sentence.
I would also like to state that the indictment, so far as I know was filed by prosecutor Rimmelin, whom the prosecution called as a witness in this case.
Q Was it by accident that Prosecutor Rimmelin filed the indictment in a case against a Pole, or did he do so frequently?
A Prosecutor Rimmelin, according to my information, filed indictments in almost all serious cases against Poles and foreigners in general, for example, the cases that we have discussed already, the Meicher-Strobowski case, the Pietra case, and a number of following cases.
THE PRESIDENT: May I ask you in what respect the Pietra case turned out to be less serious than what was at first thought? Was it because there was no evidence of violence?
THE WITNESS: Your Honor, I only remember the Pietra case very slightly. I can only conclude, from the entire external circumstances, that the Court at that time adjudged the case to be less serious than the prosecution thought. I gather that from the fact that the Court did not pronounce the death sentence which the prosecution had asked for. However, I no longer recall the details.
THE PRESIDENT: Is the indictment in evidence?
DR. BRIEGER: No, Your Honor. If I may make a remark-
THE PRESIDENT: It is not in evidence?
DR. BRIEGER: No, it isn't.
THE PRESIDENT: Do you have the indictment there, Mr. Witness?
DR. BRIEGER: Do you have the indictment, witness?
THE WITNESS: No, Your Honor, I don't have the indictment.
THE PRESIDENT: Then do you know whether the case was one of rape or rape or merely one of sexual intercourse by a Pole with a german woman, if you have no indictment?