It is the same author of whim I have submitted other things this afternoon from his books. Professor Kern is Professor of Law in Tuebingen, formerly Freiburg, and there he was for a long time the president of the university or, as it is called in German, the "Rektor of the University."
Cuhorst Exhibit No. 101 is Document 101 in Volume IV on Page 23. Hera again we have the same author whom the witness Janreis has quoted so often when he was on the witness stand. He is an authority in the field of constitutional law for the Weimar Republic.
Cuhorst Exhibit 102 is Document No. 102 in Volume IV, Page 25
THE PRESIDENT: Exhibit 101 and 102 are received.
DR. BRIEGER: Cuhorst Exhibit No. 103 is Document No. 103 in Volume TV, on Page 27. Cuhorst Exhibit 104 is Document No. 104 in Volume IV on Page 30.
THE PRESIDENT: They are received.
DR. BRIEGER: Cuhorst Exhibit 105 is Document 105 in Volume IV on Page 32.
THE PRESIDENT: Received.
DR. BRIEGER: Cuhorst Exhibit 106 is Document 106 in Volume IV on Page 36. Cuhorst Exhibit 107 is Document 107 in Volume IV on Page 38. Cuhorst Exhibit 108 is Document 108 in Volume IV on Page 38-A.
THE PRESIDENT: Exhibits 106, 107 and 108 are received.
DR. BRIEGER: These last quotations of law under the Weimar Republic I should like to be taken into consideration together with the legal opinion just submitted by Professor Kern, particularly as he himself, in his own affidavit, refers to a number of these laws and regulations.
Cuhorst Exhibit 109 is Document 109 in Book IV on Page 42.
Cuhorst Exhibit 110 is Document 110 in Book IV on Page -
THE PRESIDENT: Just a moment. We are having a little difficulty. Your exhibits 107, 108 and 109 are received.
DR. BRIEGER: May I please be told when I can continue submitting documents?
THE PRESIDENT: Yes; you may continue.
DR. BRIEGER: To repeat my last statement, Cuhorst Exhibit 110 is Document 110 in Volume IV on Page 43. This contains the particularly important "Decree for the Protection of the Republic."
Cuhorst Exhibit 111 is Document 111 in Book IV on Page 46. This contains the "Law for the protection of the Republic" of the same year. They were issued very shortly one after the other and should not be confused.
Cuhorst Exhibit 112 is Document 112 in Book IV on Page 50.
THE PRESIDENT: Exhibits 109, 110 and 111 are received.
DR. BRIEGER: Of special interest should be here the signature of Reich President Hindenburg. as well as the signature of Bruening, but in particular the signature of Wirth. This seems to me to be of special importance. This is the same Wirth whose reputation as a protagonist of democracy is international.
Cuhorst Exhibit 113 is Document 113 in Volume IV on Page 52.
THE PRESIDENT: Exhibits 112 and 113 are received.
DR. BRIEGER: Cuhorst Exhibit 114 is Document 114 in Book IV on Page 63.
THE PRESIDENT: Received.
DR. BRIEGER: These things which are being dealt with in this document should deserve attention in connection with the cross examination of the Prosecution witness Behl in the Spring of this year.
Cuhorst Exhibit 115 is Document 115 in Book IV, Page 69.
THE PRESIDENT: Received.
DR. BRIEGER: Cuhorst Exhibit No. 116 is Document 116 in Volume IV on Page 71.
THE PRESIDENT: Received.
DR. BRIEGER: Cuhorst Exhibit 117 is Document No. 117 in Volume IV on Page 73.
THE PRESIDENT: Received.
DR. BRIEGER: Cuhorst Exhibit 118 is document No. 118 in Volume IV on Page 75.
THE PRESIDENT: Received.
DR. BRIEGER: Cuhorst Exhibit 119 is Document 119 on Page 79 in Volume IV.
THE PRESIDENT: Received.
DR. BRIEGER: This again is a decision by the Reich Supreme Court. I regret that I could not include this in Volume III but I did not receive it until a later date.
Cuhorst Exhibit No. 120 is Document 120 in Volume IV on Page 81; again a decision of the Reich Supreme Court.
THE PRESIDENT: Received.
DR. BRIEGER: It says that the judge was committed and bound by certain regulations concerning the penalty.
Cuhorst Exhibit No. 121 in Document 121. I am afraid I meant Exhibit No. 121. This is in Book IV on Page 82.
THE PRESIDENT: Received.
DR. BRIEGER: Another decision by the Reich Supreme Court concerning the necessity of defense counsel.
Cuhorst Exhibit 122 is Document No. 122 in Volume IV on Page 84. This document deserves attention in connection with Exhibit 120. There again we are concerned with the penalties as laid down by law.
Cuhorst Exhibit 123 is Document No. 123 in Volume IV on Page 85.
THE PRESIDENT: Received.
DR. BRIEGER: If the Tribunal please, I have now concluded the presentation of my evidence by documents.
THE PRESIDENT: We have a supplement document: Volume II Cuhorst Supplement. Did you overlook that or do you want to put it in?
DR. BRIEGER: May I see it a moment, your Honor?
MR. LAFOLLETTE: I think that is the affidavit of Schoeck and Schoeck appeared as a witness; isn't that correct?
DR. BRIEGER: Yes, Of course, I don't need that affidavit any longer.
THE PRESIDENT: All right.
DR. BRIEGER: As a separate document the Prosecution have in their hands a Cuhorst Document headed: "Second law to effect the preparation for National??? injustice committed under the administration of Criminal Law of 19 November 1945". As the Prosecution already have this in their hands I shall now offer it to the Court. It will become Exhibit 124. It seems to me to be of great importance because it becomes clear from this that today in the American Zone of Occupation, and one might say at the direction of the American Military Government, suite far from all sentences by special court being suspended, only to some extent the taking up of sentences then arrived at, is carried out, this is a point which will become of importance in my final plea. Should I have to submit further documents later on I have already given the relevant statements and I have nothing to add thereto.
THE PRESIDENT: You are not prepared to present Exhibit 124 at this time?
DR. BRIEGER: Just a moment, your Honor. May I have reserved that number and I shall put it in tomorrow?
THE PRESIDENT: You may reserve Number 124. Exhibit 123 is received.
DR. BRIEGER: Thank you very much.
THE PRESIDENT: 107 to 123 inclusive have all been received.
DR. SCHUBERT: If the Tribunal please, may I now begin and ask witness Oeschey to take the witness stand?
THE PRESIDENT: Yes. You may interrogate him.
RUDOLF OESCHEY, a witness, took the stand and testified as follows:
BY JUDGE BLAIR:
Q. Will you repeat this oath after me:
I swear my God, the Almighty and Omniscient, 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 DR. SCHUBERT:
Q. Witness, will you please give a brief description of your personal and professional career and also give an answer to the question why you became a legal man?
A. I was born on 29 May 1930 in Angsburg, grew up at home. I went to the Secondary School and to High School in Augsburg. In 1922 I graduated from High School. The wish which I felt at that time to study law I could not realize at first because I did not have the money. I therefore went into a commercial career. At first, for two years, I was an apprentice at a bank and then for a few years I was employed by a number of commercial enterprises.
In 1926 I started studying law at the University of Munich. I studied for eight terms and in 1930 I made my first state examination, the examination of what we call a Referendar.
From 1930 to 1933 I undertook the preparatory service of a lawyer in Augsburg and in 1933 I took my second legal state examination, what we call the assessor examination.
By virtue of the results of the examination I applied for a job with the Bavarian Administration of Justice. On first September 1933 I was given my first position as an assessor with prosecution of the District Court of Augsburg. In March, 1934, I was transferred to the Public Prosecutor's office with the District Court in Hof and I was appointed second public prosecutor.
On first November 1935 I was transferred to Aschaffenburg as a local court counsellor and from there, on first September, 1939, I was transferred to the District Court in Nurnberg as District Court Counsellor.
On the 1st April 1941 I was appointed Director of District Court at tho Nurnberg district court. This was my first promotion after eight years' service.
Q Will you please give us details of your professional activity up to the time when you were appointed to the Nurnberg position.
A When I was with tho public prosecutor in Augsburg and Hof I exclusively dealt with the business of a public prosecutor in general criminal cases. Any political offenses did not touch upon my sphere of work. With the Aschaffenburg court I at first for about six months worked on tho land register and property matters. I then received the order to form c committee of referendars and presided over it, and, as an additional task, I was given a position in civil matters.
Q If I followed you correctly, witness, up to the time of your transfer to Nurnberg, you had nothing to do with political affairs or political offenses?
A No.
Q How did your superiors in Aschaffenburg judge you?
A The best information about that can be obtained by the president of the Aschaffenburg District Court which was submitted to here as a document.
Q If tho Tribunal please, may I make reference here to Prosecution Exhibit 408, in Volume IX, on Page 57. I should like to point out here that if during the examination of this witness, I take reference to certain documents or passages of the transcript, I shall always quote the page of the English translation or tho English version. Now, will you please describe how it was that you were transferred from Aschaffenburg to Nurnberg.
Was this a case of a promotion; and, will you please give us your comment on the assertion by the witness Doebig that at the suggestion of Rothaug, and at the instigation of the Gauleitung of Franconia you were transferred to Nurnberg. May I take reference here to a Prosecution affidavit, which is Exhibit 236, in Volume III-B, on Page 74, and the page in the transcript is 1771, where Doebig in his examination had to modify his statements somewhat. Will you now please give me an answer?
A: What the witness Doebig has asserted is incorrect. I did not like the atmosphere in Aschaffenburg -- which was the reason why I took my doctor's advice and as early as spring 1938 I constantly looked for a transfer from Aschaffenburg to some other place. There wore positions of district court and local court counsellors in a number of various Bavarian places which had advertised in the journal "Deutsche Justic". Among these positions there was also a position of a district court counsellor in Nurnberg. Up to 1940 I nowhere had any contact with political circles, and particularly I had no relations with the Gauleitung in Franconia; nobody knew me there; even my name was quite unknown. I am quite sure that the people in charge of the Franconia Gau were not informed about the fact that I had applied for this position because this was only a transfer and in the cases of transfer, political agencies are not being consulted. It is also completely out of the question that Rothaug had anything to do with this transfer. I know Rothaug at that time neither by name nor by what he looked like; nor did I know Herr Denzler who at that time was the most influential political man in all personnel matters of the administration; nor would it be correct to say my transfer to Nurnberg was done for the reason that I should be used at the Special Court.
On 1st January, 1939 I was transferred to Nurnberg. At that very moment with the Fourth Penal Chamber to which the Special Court was incorporated, a change in personnel was effected. Therefore, had the order existed to use me for the Special Court, it would have been possible to do this by the 1st of January 1939, but in effect, I was not being attached to the Fourth Penal Chamber and the Special Court, but the Third Penal Chamber. The real reason for my transfer was purely this: As I was told later by Dr. Emmert who was later on the president of the district court. I had been suggested for this position and this suggestion was done bearing in mind the fact that my boss at the time, the president of the district court in Bamberg, had recommended me particularly because of my work for the referendars. As stressed before, this was not a promotion, but purely a transfer for the local court counsellors and the district court counsellors received the same pay.
Q What the witness Oeschey has just said now is confirmed by what was said by the witness Donzler, on page 7121 of the record. Witness, will you please tell us what you did as a judge in Nurnberg?
A With the district court of Nurnberg I was first of all used as a judge in the Third Penal Chamber. This had to decide on criminal offenses of a general nature. As from 15th April 1939, I was transferred to the Fourth Penal Chamber, the president of which was Rothaug.
At the same time I was appointed associate judge with the Special Court. This transfer to the Fourth Penal Chamber was a complete surprise to me. Herr Rothaug, who up to that moment was a stranger to me, called on me one morning in my office and he said that he needed somebody else for his work, that is a judge, and that people in charge had recommended me and that he would, therefore, like me to take over this job and j in his chamber. I saw no reason why I should say no to transfer from one chamber to another. In any case, any political considerations were of no importance for that change in my sphere of work.
THE PRESIDENT: Will you excuse me a moment. I wanted to make a note of the date of the transfer. Will you tell me the date of the transfer to the Fourth Penal Chamber?
A On the 15th of April, 1939.
THE PRESIDENT: Thank you, very much.
AAny political considerations were of no importance here because the focal point of the work done by the Fourth Penal Chamber was with the penal cases; these were known as the jury cases. About four-fifths of all cases heard were those cases; whereas, the cases the Special Court at that time in Nurnberg dealt with both as far as number and their significance was concerned were negligible.
Q Now, what did you do until you were promoted Director of District Court?
A Up to 1st April, 1941 I exclusively worked as an associate judge and author of opinions and sentences in the penal chamber and the Special Court cases under the chairmanship of Rothaug and Engert.
After the outbreak of the war, the focal point of the task was transferred to the Special Court because the cases tried by jury had been completely discontinued, and the competence of the special court had been considerably extended. As from August, 1940, however, I experienced that I was relieved of a great many of my duties because I had taken over two party offices. From that time onwards, I regularly attended one meeting a week and above all I was relieved from any participation in sessions outside of Nurnberg.
Q What the witness says here concerning the lessening of the work before the Special Court is borne out by the witness Ferber, on page 1417 of the transcript. Witness Doebig has said in the Prosecution's affidavit, which is Exhibit 236, on page 74 and others, in Document Book III-J, has given a highly unfavorable description of your professional qualities. He in particular takes execution to your deficient knowledge of the subject matter and other things. How is it that you in view of this highly unfavorable verdict as to your professional qualities were nevertheless promoted to Director of the District Court?
A The reason for this is that at that time the witness Doebig gave me a considerable different testimony of my qualifications. From what he said officially to the Reich Ministry of Justice, becomes quite clear from almost all points that the contrary was said more recently.
DR. SCHUBERT: The witness is referring here to Prosecution Exhibit 408, in Volume IX-A, on page 63.
THE PRESIDENT: The Tribunal rill recess until tomorrow morning at 9:30.
(The Tribunal adjourned until 10 September 1947 at 0930 hours.)
Official transcript of American Military Tribunal III in the matter of The United States of America, against Josef Altstoetter, et al, defendants, sitting at Nurnberg, Germany, on 10 September 1947, 0930-1630, The Honorable James T. Brank, presiding.
THE MARSHAL: 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 the defendants are all present?
THE MARSHAL: May it please Your Honors, all the defendants are present in the court.
THE PRESIDENT: Let the proper notation be made.
One matter-
DR. ASCHENAUER (Counsel for the defendant Petersen): If it please the Court, may I inform the Court that the witness Dechant has arrived in Nurnberg, and may I ask you when the Court wishes to hear this witness?
THE PRESIDENT: He is a witness for the defendant Petersen?
DR. ASCHENAUER: Yes, he is.
THE PRESIDENT: Where is the witness? In Nurnberg, but is he-
DR. ASCHENAUER: He is in Nurnberg, yes.
THE PRESIDENT: Is he what has been called a free man, or is he in jail?
DR. ASCHENAUER: He is in prison here.
THE PRESIDENT: Will he be removed from Nurnberg as soon as he has finished testifying, or would he be here permanently, do you know?
DR. ASCHENAUER: As soon as he has given his testimony he will be removed from Nurnberg again.
THE PRESIDENT: How long will his testimony take?
DR. ASCHENAUER: As far as I can judge, not more than thirty minutes.
THE PRESIDENT: Well, have him available this afternoon and we will hear him sometime this afternoon.
DR. ASCHENAUER: Thank you.
THE PRESIDENT: At 1:30 this afternoon.
DR. ASCHENAUER: Thank you very much.
THE PRESIDENT: One matter has come to our attention. It is a matter which we have called counsels' attention to before, but the fact that we are approaching the conclusion of testimony has led the Tribunal to believe that we should once more state that if there are any applications such as were mentioned, I believe, by Dr. Schilf, for special action on the part of the Tribunal in an attempt to secure witnesses not in the American Zone, that any such motion, as we have already stated, should be presented in writing and should state, not in general terms, but specifically, what it is that the witness would be called to testify to, because the Tribunal must know whether the testimony would substantially affect the course of the trial before taking any extraordinary action under the provisions of Rule 12, subparagraph (d).
Now any such motion, if there is one to be made, must be made in the immediate future or it will not be allowed, because we cannot allow for a long delay in waiting for the attempt to secure witnesses who might possibly be impossible to secure.
Dr. Schubert, you may proceed.
RUDOLF OESCHEY (Resumed) DIRECT EXAMINATION (Continued)
DR. SCHUBERT: If the Tribunal please, I believe that the last citation which I informed the Court of yesterday afternoon did not quite come through, and I should therefore like to repeat it.
The witness spoke about the fact that the unfavorable qualifications given by the witness Doebig in the prosecution's affidavit did not coincide with the formal comments given by Doebig in the official files of the defendant Oeschey, and I drew attention to Prosecution Exhibit 408 in Volume IX-A, on page 3.BY DR. SCHUBERT:
Q. Witness, the prosecution used the same Exhibit 408 in order to put to you a letter of the deputy of the Fuehrer of 9 December 1940, where it is suggested that you should be promoted. The conclusion which the prosecution wishes to arrive at is that because of your Party allegiance you should have been promoted out of turn. Will you please give us your comments?
A. I don't think so. The letter which you have just mentioned contains merely a suggestion on the part of the Fuehrer's Deputy, and it concludes with the words, and I quote: "I should be grateful if you could inform me whether Oeschey can be taken into consideration."
The Reich Ministry of Justice thereupon turned to the president of the district Court of Appeal and asked him for his official comments; and only when his absolutely positive opinion was received did they order me to be promoted. This promotion remained the only one in the whole of my career. That I was promoted to the District Court Director after eight years of service I am sure this is not an unusual event, particularly as people who had done as much service, or even less service than I, without having been Party members, were equally promoted as I was. I am thinking here of the cases of Engert, Ferber, Ostermayer, and others. Even the suggestion by the Fuehrer's Deputy was not an unusual event. These same suggestions were also made on the occasion of Ferber's, Engert's, and Ostermayer's promotions. The fact that I had belonged to the Party for some considerable time might certainly have had some influence on the promotion, but that fact was not the decisive element.
Q. Did you yourself have any influence on your promotion because you had relations with the Party?
A. No.
Q. Now, will you please describe what you did after that professionally?
A. After I had become District Court Director, I was appointed Deputy President of the Special Court. The other Deputy Presidents at that time were Engert and, later on, Ferber. The decrease in work which I have described before, because of my Party offices, was maintained, and therefore, officially speaking, my time was claimed regularly, once a week. Above all, I did not have to take part when the Special Court traveled to places outside. These trips were made by me only very infrequently in those years.
In 1943, when Herr Rothaug was transferred to Berlin, Ferber succeeded him. I myself remained Deputy President when Ferber was the President of the Court and the, as I remember it now, as of July 15, 1943, I was transferred to the President's office of the District Court of Appeal in Nurnberg. There I was to take up a job in the personnel offices for judges, attorneys, and public notaries, and I remained there until October of 1943.
Q. Witness, will you tell us when you were promoted to District Court Director?
A. 1 April 1941.
Q. And up to that time you wore an Associate Judge with the Special Court?
A. Yes, up to 1 April 1941.
Q. And after that you became Deputy President?
A. Yes, quite.
Q. Now, when the witness Doebig testified here he stated that you endeavored to obtain the position of President of the District Court in Nurnberg. I am referring here to the transcript at page 1756. Is Doebig's testimony correct?
A. I never attempted to obtain that position. As I remember it, the Gau Leitung of Franconia made this suggestion to Emmert the then President of the District Court of Appeal and Emmert said yes at the time. He said he would go into the matter and would consider it in due course. That was done, it is true, but no promotion was effected.
DR. SCHRUBERT: The witness is here referring to Prosecution Exhibit 408 in Volume IX-A, on page 50.
Q. Will you please describe now why you took over from Ferber as the President of the Special Court?
A. Emmert, who was the President of tho District Court of Appeal at the time, for reasons which I could never find out, contracted a dislike of Ferber. Now, in about August or September of 1943, when a few verdicts of Ferber's were quashed by the Reich Supremo Court through nullity pleas, Emmert decided to change the President of the Special Court. At about the same time a particularly drastic cutting down in the tasks of the Administration of Justice occurred, with the effect that the President's office in the District Court of Appeal could no longer afford me sufficient work. This cutting down also occurred in the Party, and this particularly touched my position with the Gau Leitung.
The result was that Emmert now suggested that I could become free for the position cf the President of the Special Court.
Q. Did you yourself have any influence on this change within the Presidency of the Special Court?
A. No.
Q. From when to when did you take over the permanent position as President of the Special Court?
A. From 1 October 1943 until the first day of February 1945; I think, as far as I can remember, it was until the 3rd or 4th of February. At that time I was called up by the Wehrmacht, and there, at the beginning of April 1945, I was ordered to join the courts martial.
Q. Witness, having now heard the details of your professional career, will you please tell us when and why you joined the NSDAP?
A. I joined the Party on 1 December 1931. The reason was my worry concerning the economic and political future of the German people. That was caused within me by the far-reaching collapse of political and economic life in Germany of the time. This collapse was visible at the time in the bankruptcy of large banks and industrial enterprises, in the large numbers of forced auctions of farms, and in millions of unemployed. The real, decisive element in my joining the Party was the fact that I had read the speeches and writings of Gregor Strasser, who at that time, next to Hitler, was the most prominent personality in the NSDAP. I did not hear Hitler himself at that time.
THE PRESIDENT: Pardon me, I did not understand your testimony. Strasser?
THE WITNESS: Gregor Strasser; S-T-R-A-S- S-E-R.
A. (Continuing) When I joined the NSDAP I did so for reasons of my political convictions, not for any reasons of opportunism, of which nobody could be suspected at that time, because joining the Party at that time was disadvantageous rather than advantageous, nor was it certain who would win the political battle.
BY DR. SCHUBERT:
Q. Did you do anything politically in the Party until 1940?
A. From the day I joined the NSDAP, until 1940, I did not do anything within the Party politically; I hold no office in the Party nor in any of its formations or affiliated formations, nor did I ever act as a speaker or a writer. I merely paid my membership fees and from time to time I would attend a meeting. I had no relations with any influential political personalities; I did not try to have any, nor did I ever find any.
Q. How was it that you took over the Party office and the office in the Lawyers League in 1940?
A. When I took over those offices I saw that these were important offices: First, with the Gau Legal Office of the Gau Leitung of Franconia, and secondly, the office of Gauwalter in the Lawyers League of the Gau Franconia. Both positions were concerned with organizations which were, in themselves, indepenent and different from each other. The Gau Legal Office was a subdepartment of the Gau Leitung whereas the National Socialist Lawyers League was an independent association. It was the professional association of lawyers, judges, public prosecutors, attorneys, notaries, administrative lawyers, economic lawyers, university professors, and Referendare.
Q. Was the NS Lawyers League a new establishment invented by the Nazis, or did it exist in a different form before 1933?
A. The Lawyers League existed before 1933. It was then called the Union of National Socialist German Lawyers. It was an organization of the Party, such as the Republic Association of Judges which existed before 1933. After the seizure of power all associations of lawyers, such as the Union of Judges, the German Lawyers Union, and so on, were dissolved and merged with the Lawyers League. That made the Lawyers League the only organization of the legal profession and it replaced the work which was done earlier by the other associations.
Q. Will you please describe how it came about that you took over the Party offices?
A. In about the spring of 1940, the position in the Cau Legal Office and the position of the Gauwalter in the NSDAP were both vacant. The man who had so far held these offices. Public Prosecutor Derzler, was dismissed, as early as 1939, in connection with a disciplinary action: he had been transferred to the Public Prosecutor's office in Chemnitz, without at first, however, having been relieved of his Party offices. They were taken care of at first by his deputies. These deputies, early after the outbreak of the war, were called up into the army.
THE PRESIDENT: I am sorry, there seems to be more difficulty with the electrical transcription. We will take a recess; it is very unfortunate.
(A recess was taken.)