Q Where?
AAt Augsburg.
Q Since When have you been active in that profession?
A Since the 9th of July, 1945.
Q Were you examined and admitted by Military Government?
A Yes.
Q Witness, do you know a man by the name of Guenther Otto, alias Johann Torsten?
A Yes.
Q Can you tell us in what connection you met this man for the first time?
AAgainst Torsten, at Miesbach, a warrant for arrest was issued for murder. The reason for his arrest was probably another one. As far as I can recall, because he did not have any identification papers with him. I have to correct myself. He did not have any clear identification papers. At Miesbach he alleged, before the judge there, that at Augsburg, at the Lech bridge, where the Autobahn passes across the bridge, in the year 1941 until 1943, he had shot an SS-man and undressed the corpse because there was a very definite resemblance to him. He and his two companions had thrown the corpse into the water. He claimed that he had dressed himself in the uniform and had taken over the identification papers also. Those identification papers of the deceased SS-man, had been in the name of Hans Guenther Otto.
He then stated that he had returned to Augsburg; that he stayed there overnight, and that, on the following day, he had proceeded to Dachau.
There he entered the SS unit, he had reported back to the orderly Room, and then he had gone to the enlisted men's barracks. The unit was about to do some close-order drill. Then the other men returned and they did not see that he was not really Hans Guenther Otto - but they thought this was the real man. I made a mistake here: they did not realize that he was not Torsten, but they took him to be Hans Guenther Otto. He then performed duty for some time with this unit, and then he had gone to the East with the unit.
Q According to the description which Otto gave to you at the time, his real name, therefore, is Torsten?
A The description was not given to me by Guenther Otto in person. He gave his description to the police official, and also to the judge.
Q And you only know this description from the files?
A Yes.
Q And these are official files?
A Yes.
Q And, according to this, one would assume that he is not Hans Guenther Otto at all -- but Hans Torsten?
A Well, he admitted that to me personally. He told me that he was Hans Guenther Otto; that was at the end.
Q Therefore, according to his first description which you have given us just now, his name should actually be Johann Torsten?
A Yes.
Q And he killed Hans Guenther Otto? And then he took his place in the SS guard unit at Dachau?
A Yes.
Q In the guard unit?
A I didn't say that. I don't think so, because he spoke about the fact the he had been sent to the East together with the unit.
Q And then he repudiated the fact that he was Torsten, but he stated that in reality he was Otto?
A Only after several months had passed, he told the police that everything he had said up to that time was untrue. He told them that he really was Hans Guenther Otto.
Q And what he said before -- did that sound credible and was it explained in a credible manner?
A Yes, beyond any doubt.
Q It was explained very clearly -- and then he repudiated it after several months passed?
A Yes.
Q And what happened with regard to the trial against Guenther Otto?
A On the 17th of January, 1947, according to paragraph 51 of the Penal Code, I withdrew the trial because the person was not mentally competent.
Q Paragraph 51; Article I or II?
A It must have been paragraph 1. He was fully mentally incompetent because, according to paragraph II, the punishment under mitigating conditions is considered.
Q Therefore, if you had used paragraph II, then the trial would not have been continued?
A Yes.
Q Therefore, the fact that this procedure was discontinued according to paragraph 51 justifies the conclusion that this was done according to Paragraph 51 (1)?
A Yes. I asked my secretary, and she knows for certain that proceedings were discontinued according to Paragraph 1. She can still recall that.
Q Do you know the text by heart of Paragraph 1 and Article 51?
A "If the perpetrator of the deed is in a mentally incompetent condition at the time he perpetrates a crime --" I don't know the rest of it.
Q Aren't insane people listed there?
A No, that is in the civil -
Q Was your decision based on a medical diagnosis?
A I can't recall that anymore. I can't recall that for certain, I want to say. However, there must have been some diagnosis there. I think from MunichStadlheim -
DR. VON STAKELBERG: In order to explain the matter to the Tribunal, may I say that it is not simple to follow the traces of this matter because Otto was arrested at Stadlheim by the name of Otto while the District Attorney looked for him under the name of Torsten. Stadlheim is one of the largest penal institutions, near Munich. I called up Stadlheim, and I was only able to find out from there that a Guenther Otto had been there, but the files do not exist anymore about him because the District Attorney's office released him as Torsten and the Torsten files were sent back because no man was there by the name of Torsten. Therefore, there is a terrible confusion here.
THE PRESIDENT: It is like sending the prisoner back to Dachau from here -- same kind of confusion.
BY DR. STAKELBERG:
Q You therefore assume that the witness Otto was examined in Stadlheim?
A Yes, I assume that.
Q In any case, it has been determined that you discontinued proceedings against him under paragraph 51 (1)?
A Yes, that is an official document.
Q Where are the files in this matter?
A Because this has been the case of an SS-man here, at the end, after the proceedings were discontinued I believe, I passed the files on to the special branch at Augsburg. There they were only sent back in March, and from the files which consisted of approximately 80 to 100 pages, only three pages were still in existence. I tried to find out what happened to the remainder of the files -
THE PRESIDENT: Probably in the Defense Information Center.
DR. STAKELBERG: I am afraid not, Your Honor.
BY DR. STAKELBERG:
Q Well, for the time being I have no further questions.
CROSS EXAMINATION BY MR. FULKERSON:
Q Witness, do you know what happened down at Miesbach before you saw Otto?
A Thorsten -- or rather Hans Guenther Otto -apparently must have told CIC at Miesbach about this murder of the SS-man, and the CIC apparently made notification of this matter to the court there.
Q Is this part of this mysterious lost file that we are now trying to reconstruct?
A Yes, that was contained in the files. I can still remember that. As far as I can recall, however, the CIC did not believe him.
Q. Well, what did the CIC have to do with the mixed-up identification papers?
A I don't know that any more.
Q Well, it is your impression that he was originally apprehended because of confused identification Papers?
A That was my impression. In any case, already at the very beginning of the proceedings, the identification papers played a major part.
Q And do you know who originally arrested him? Was that the German police or was that the CIC -- or who was it?
A The warrant for his arrest was issued by the local court at Miesbach. Some police authority in that court district carried out the actual arrest. On whose orders this was done I can't tell you any more.
Q You don't know what lead up to that warrant's being issued?
A No, I can't give you the actual reason for it. I must differentiate here between the arrest, between the temporary arrest, and the warrant for arrest. The warrant for the arrest is still included in the three papers. I turned them over to an investigator on Saturday, and this warrant for arrest has already been issued because of murder.
Q And that was at Miesbach?
A That was at Miesbach, yes.
Q Was that the second warrant?
A No, I don't think so. In any case, I didn't see any other warrant for arrest.
MR. ROBBINS: Witness, are you positive that the case against Otto was discontinued on the basis of a medical examination and not on orders of the C.I.C, the Special Branch Agency of C.I.C.?
THE WITNESS: No, I certainly would still remember it if this C.I.C. or Special Branch, had interfered in that matter.
REDIRECT EXAMINATION BY DR. VON STAKELBERG: (ATTORNEY FOR THE DEFENDANT FANSLAU):
Q Witness, I nave one more question. The description which Otto gave you about the murder, did it contain all the details?
A Yes, he had even the most minute details in that. The description actually was quite credible. However, there were certain points in it which could not be true: for example, the fact that a sentry should return after three days and nothing would happen to him, as far as his unit is concerned, Or that all the other comrades who were in the room would not recognize him, although he was new.
Q However, these are just conclusions. His description contained minute details?
A Yes.
Q And they were quite credibly presented?
A Yes.
Q And he refuted this description?
A Yes.
Q Immediately?
A No, very much later. He admitted to me that this description was untrue.
Q And what does he say today?
A I didn't hear anything further from Guenther Otto, until on the 19th of August.
Q The 19th of August?
A I received a letter from him from the Witness Building in Nurnberg. This letter bears the date of the 17th of August, 1947. In this letter he states amongst other things, "the deed which I have described so precisely has happened, and it happened at a bridge across the Weichsel."
Q First he described the deed in all its details?
A Yes.
Q And then he claims that this had happened at the Lech Autobahn Bridge at Augsburg and then after some time has passed he refuted this description altogether?
A Yes.
Q And now he claims that he had carried out such a deed, but at a bridge across the Weichsel, in Poland, apparently?
A Yes, apparently.
Q Did you give us the date when you ordered the proceedings be discontinued by virtue of Paragraph 51?
A That was on the 17th of January, 1947.
THE PRESIDENT: Perhaps the deed that he refers to as happening in Poland has nothing to do with the shooting of the SS officer.
THE WITNESS: The deed which he alleged to have committed at the Weichsel Bridge at Poland was-supposed to be the same about which he has given us a description in Augsburg. May I read this letter?
THE PRESIDENT: Yes, please. Just a moment. Will you look over his shoulder just a moment.
THE WITNESS: "The deed happened in the struggle against the Nazi Regime. In the vehicle young people were sitting. They had realized one thing, namely, that the rights of human beings were being stepped upon by the person who were in power. They shot down the SD man and Torsten, that was his name in reality, fired the shot also." Do you want me to continue?
THE PRESIDENT: Yes.
THE WITNESS: "However, one thing was not true, that what you have told me. It was not murder in this villanous act." I want to add one thing here. That is not correct either. I have never believed that this was murder. I have never claimed that and when he came to see me on one occasion I only told him, now that he had make a confession that the deed had not happened. Then I told him that in the future he should not engage in such villanous acts.
Of course the letter is much longer.
DR. VON STAKELBERG: I don't know whether the Tribunal would like to hear this entire letter.
MR. ROBBINS: May I ask that this letter be turned over also to the prison psychiatrist, along with the other files, after the prosecution has -
THE PRESIDENT: This letter might be very illuminating. I think it ought to be translated carefully for both the defense and the prosecution. No, not now. Not now.
THE WITNESS: To whom shall I give this letter?
THE PRESIDENT: If the Major will wake up -
DR. VON STAKELBERG: Your Honor, I would like to add one thing. I did not intend to prove with this witness here directly that the witness Otto has refuted himself in the description of alleged execution of the Jews, but this testimony here was to serve in shaking the credibility of the Witness Otto altogether. The shooting of Jews at the time -- he hasn't mentioned that at all elsewhere. So far as I have been able to determine, they now appear here for the first time in his description of curriculum vitae.
THE WITNESS: May I say something? He included a very extensive curriculum vitae in the files. However, he did not mention any other incidents there.
Q Although he wrote his curriculum vitae in detail, he did not make any statements about atrocities he observed in Poland or in Russia?
A No.
DR. VON STAKELBERT: I have no further questions, Your Honor.
THE PRESIDENT: That will be all. That will be all, thank you.
(The witness was excused.)
THE PRESIDENT: Next witness, if any. How about some documents?
DR. SEIDL: (Attorney for the Defendant Pohl): Your Honor, the defense would like to present some documents, However, I don't know whether the Tribunal as yet has received the English translation. If that should not be the case, I shall try to obtain the translation during the recess.
THE PRESIDENT: All right. We don't want to waste the rest of the afternoon. Whatever is to be presented, this is a good chance either for the prosecution of the defense in the way of documents or witnesses, or any other proof. We will take the recess while you are arranging your proof.
THE MARSHAL: The Tribunal will recess for 15 minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. DEIDL (For the defendant Oswald Pohl): May it please the Tribunal, it was my intention to submit my documents on behalf of Oswald Pohl. The document book consists of three volumes, 1, 2, and 3. Volumes 2 and 3 have not yet been translated. Volume 3 has been translated for sometime and mimeographed. I have endeavored for some days to obtain the translation of Volume 1. I went to Room 554 in the recess where the translations are available by the dozens. Unfortunately, it was not possible for me to move the official in charge to let me have even one single copy. I told him that I would inform the court of this state of affairs.
So I must tell the court that for that reason I am unable to submit those documents which are located in Volume 1 of Pohl's document books. I have made sure myself that the translations are available; but for reasons unknown to me it was not possible for me to obtain the books.
THE PRESIDENT: You have three document books?
DR. SEIDL: Yes, there are three; but they are not very big ones.
THE PRESIDENT: How many of them do you have ready to distribute? One or none?
DR. SEIDL: Volume 1 has been translated and mimeographed and is ready to be distributed; but it has not been handed to me. It has remained stocked in Room 554 as I found out myself about ten minutes ago.
THE PRESIDENT: You mean there's nothing more to be done? It's all ready? .
DR. SEIDL: Yes, entirely ready, even bound.
THE PRESIDENT: What about book 2?
DR. SEIDL: Books 2 and 3 have not yet been translated. I was told that they are still being translated and will soon be ready. I intended at least to submit the documents contained in Book 1. After those books have been completed and bound, I should be grateful for the Court's assistance in attempting to obtain Document Book 1.
THE PRESIDENT: Well, if it's all ready, there won't be much trouble in getting it out of Room 554. We can got it as long as it's ready. A number of other counsel have document books; and it has been suggested that without reading them into the record they merely be submitted to the Tribunal to read and that the prosecution can object to any particular document that they wish but that it won't be necessary to read them and refer to them by document book number. You can offer the book in evidence and the Tribunal will take it and read it. It will save a great amount of time. Is there any objection to that? The prosecution will follow the same plan. They have some books to submit; and they will offer them as books, and you can object any time to any one of the documents that you wish.
DR. RAUSCHENBACH: (for the defendants August Frank and Hans Loerner):
If the Tribunal please, the prosecution had the opportunity of offering their document books, which up till then were twenty-three, and even though on many occasions they merely had reference to the index, nevertheless they were in a position orally to connect them with various points of the indictment. Thus the material reached the transcript in an impressive manner orally as is the idea of this trial. If I merely submit my document books without being able to establish a connection between the various documents and if they are only being read by the Tribunal, I believe that I am at a disadvantage as compared to the prosecution as far as the efficacy of my defense is concerned.
Court No. II, Case No. IV I do not think that the wish to save time should be the sole justified element, if they are helping to produce anything which exonerates the defendants to the best advantage of the defendants.
I have collected as few documents as possible, but I should be most grateful if I could read those; that would not mean that I shall read the whole of them.
THE PRESIDENT: If you feel that suggestion would be a disadvantage to you, why that settles it. We don't want to force a plan upon you which is, even in your opinion, would be a disadvantage or a handicap, and, if you prefer to present your documents one by one and by reading from them, or parts of them, if you think that is important, why, we, of course, will not interfere with that. Are there other counsel who fell the same way? You do Dr. Von Stakelberg?
DR. VON STAKELBERG: Yes, I do, Your Honor.
THE PRESIDENT: Yes.
DR. RASCHENBAUER: I shall then read them with Your Honors' permission.
THE PRESIDENT: Dr. Pribilla.
DR. PRIBILLA: Dr. Pribilla for the defendant Tschentscher.
THE PRESIDENT: We are not trying to rush or hurry the hearing as much as we are trying to avoid losing of time, which is even worse than hurrying too fast. Is there any reason why you can not put your client on the stand tomorrow?
DR. PRIBILLA: Certainly, Your Honor. My position is that the witnesses who will be presented by Dr. Stakelberg will also be my own witnesses. They are colleagues of Tschentscher only on the witness stand after he has heard those witnesses testify, because he should in the end give his own comments. Otherwise, I would have to call him twice to the witness stand. Mr President, if the Tribunal please, may I make a suggestion.
I understand that Dr. von Stakelberg is ready to submit his witnesses, and that would fill out todays session. Tomorrow Dr. von Stakelberg will not be present, and, therefore, we cannot hear our mutual witnesses tomorrow. I don't know what these witnesses are saying, therefore, I can not ask the questions.
DR. STAKELBERG: If I may make a suggestion. It was my thought that tomorrow, perhaps, my colleagues would submit their document books. There are so many document books that are outstanding, that even if it is being done at full speed, only the must important items can be shown briefly. That will, at least, take the whole day tomorrow, I should think, and that will take care of tomorrow's session.
JUDGE MUSMANNO: Dr. Stakelberg, it is only a matter of curiosity that I ask. Why would you want to put the defendant on last? I ask as a matter of curiosity, if I were a defense attorney, I would want to put my defendant on as soon as possible. I can not understand the psychological effect. I only ask that out of curiosity. Why don't you want to put him on.
DR. VON STAKELBERG: With my clients it is more as a matter of principle, when he is charged. In all my cases I always produced the witnesses first, and then the defendant, because I always assume that the defendant knew must of it, and, I can, therefore, ask him all those things which the witnesses could not answer. That is always the principle which I follow, and if this principle should not be correct, I have no practical objections to interrogating the defendant before the witnesses; on the other hand, neither is my questioning, as it may not be quite so complete in that case.
DR. PRIBILLA: May I say something about this. I was suddenly faced with entirely new evidence on the part of the Prosecution regarding Tschentscher's activity at the front, so far that no accusation had been raised against him until last week when the Prosecution witnesses appeared here.
Now I have found a number of people who were in Tschentscher's Supply Column, but I have not as yet heard what these people will tell us, as I wish to confirm or check the picture as much as possible as to the incriminating evidence by witnesses for the prosecution on the one hand and those for the defense on the other. I wish to conclude my defense by interrogating the defendant in the end, so that I come as near to the objective truth as is possible. For that reason it seems to me to be necessary to have sufficient time to speak first to all of the witnesses when I can get hold of them, and then to set down a final defense.
JUDGE MUSMANNO: Whatever reason you give is ample sofar as I am concerned, but I can not help but say that the defendant, if he did not do a certain thing, and he takes the stand and affirms or denies that fact regardless of what the individual's said, and why his story would have to wait until other witnesses and until their story is in, is to me just a little difficult to comprehend, but that, of course, has in no way effected my judgment as to what you intend to do, as at present. It is your intent to present your evidence as you wish, but I could not help to express myself as to my own wonderment why you follow that procedure.
DR. PRIBILLA: I understand your point entirely, Your Honor, but may I say this. There are a number of incidents which we have not been told about, and many are quite unknown to the defendant, because he really was not present but was purely the senior superior officer. Therefore, it is essential to talk to those people who actually had done something, and will be in a position to attempt to clear up the objective state of affairs, so that the defendant who did not the act, but was purely the man responsible for the act will be able to give us his comments.
JUDGE MUSMANNO: The defense will be applied to the accusation, but not to the defendants' witnesses. The defendant is going to answer the accusing witnesses there, but not what the defense witnesses say.
DR. PRIBILLA: But those witnesses will help to merely clear up an incident. Let's assume an incident where Tschentscher was not present, and somebody was shot, carried out by members of the company. Tschentscher tells me I knew nothing about it. Nobody said that he did it himself, but one could say that he should have prevented it, that was his responsibility because be was the commanding officer of the company. Then it seems to me I must clear up that situation, and that is only by a help of all witnesses I can get of what did really happen, and then I shall be able only to come to the question of the responsibility.
JUDGE MUSMANNO: I am certainly not saving any time by talking about it.
THE PRESIDENT: Do you want to put your documents in now, Mr. Robbins?
DR. VON STAKELBERG: May I say one thing about this. If the Tribunal thinks the statement of a defendant is more acceptable by its being made before the witness testifies, I shall be only too happy to call Fanslau before the witnesses come here. I did not act like this because I want to delay the case, or because I am afraid what he might say. What I thought was that my questioning might be more complete if I asked him after the witnesses testify, but I have no other reason at all. I will be quite happy to call him now.
THE PRESIDENT: You are his lawyer. You do it the way you want to.
MR. ROBBINS: If it might be with the agreement of defense counsel and the Tribunal, I simply would propose to introduce the documents which I have marked for identification in Books Nos. 22, 23, 24 and 25, copies of which are in the hands of the defense counsel. Without referring to each individual document, and then if there is some objection to a specific document, if they would advise me as to that, say on Wednesday, perhaps we can clear up that particular objection. There will be another Document Book No. 26, which contains documents, all marked for identification, and then one, two or three additional document books containing rebuttal documents.
At this time I should like to offer the documents in Document Book No. 22.
JUDGE PHILLIPS: Mr. Robbins.
MR. ROBBINS: Yes, Your Honor.
JUDGE PHILLIPS: Each one of these documents which you have marked for identification, have all been referred to and used with the witnesses, or in connection with witness testimony, and the defense counsel, I have it, are familiar with each one of those documents which you have marked for identification?
MR. ROBBINS: I think that is correct. So I would like to offer the documents contained in Document Books Nos. 22 through to 25 inclusive, namely, Exhibit No. 522 through to No. 619 in evidence subject to the objections of the defense counsel.
DR. SEIDL: Dr. Seidl for the defendant Oswald Pohl. May it please the Tribunal, among these documents there are the two affidavits given by the witness Dr. Morgen, dated 28th and 29th of January 1947. The document numbers are NO-1900, and NO-1107. As the Court has a ruling that these cases of corruption have nothing to do with the indictment, I object to the admissibility of those two affidavits as evidence, because under the evidentiary circumstances they have no probative value.
THE PRESIDENT: Well, then, inasmuch as the Tribunal has read both affidavits several times, and discussed them with counsel, and, inasmuch as they do contain statements not connected with corruption, they will remain in evidence for whatever they are worth. If they don't say anything that is damaging or incriminating, why no harm is done, but in view of the fact that we have read them backwards and forward, and the witnesses testified about them, they should be in the record.
If there is not further objection, the exhibits offered by the Prosecution will be received in evidence.
Do we have those other books Mr. Robbins? We will have those books, Mr. Robbins?
MR. ROBBINS: We will have all the books here.
THE PRESIDENT: This is up to twenty-five.
MR. ROBBINS: To twenty-five.
THE PRESIDENT: And the defense counsel have their documents?
MR. ROBBINS: Yes.
THE PRESIDENT: All right. Is there any one on behalf of the defense wish to offer any document books now?
DR. VON STAKELBERG: Dr. Stakelberg for the defendant Fanslau.
If it please the Tribunal, I should like to offer documents. I am quite sure that the translation of the documents has reached the Court. I heard, I know, that there has been a translation of the two books, but I am not sure whether Your Honors have already received your copies.
THE PRESIDENT: We will go look for them.
DR. VON STAKELBERG: If the Tribunal please, as Fanslau's Exhibit No. 1 I wish to offer an affidavit by Ernst Borsum. This affidavit was taken in the camp at Dambacherstrasse at Nuernberg. It says Borsum said he was formerly a colleague of the defendant Fanslau, and gives his capacity and duty. It is merely a supplemental statement to that of the witness Stein, who was also a colleague of the defendant Fanslau. These two statements together give a survey of the activity of the defendant Fanslau in the WVHA. I should like to draw Your Honor's attention to the fact that here again it is expressed that these tasks of Office Group D were not part of A-V, and particularly the scope of work in A-V-IV. It existed on paper only. It was done by Office Group D. Under paragraph 3 in this affidavit it states that the activity in Office A-V was not concerned with the direction of the personnel, but merely taking care of personnel data. Now, under IV it states that all personnel matters did not presuppose any knowledge of what the other office groups and officers did. The next paragraphs are of a more specific nature. Particularly under paragraph V, which says that nothing was known about Globocnik, and no administrative personnel was transferred to Globocnik's administration. This supplements once more there what the witness Stein has told us.