These acts were very well known to the political prisoners, and these officials did not keep them secret and deny them in front of the political prisoners. Thus it was possible in the course of time to put pressure on a large number of such officials and in that way to make them amenable to all kinds of influences; thus it was possible that the secret group made it clear to the officials that the life of the prisoners was the prerequisite for their own life, for the life of the officials; and that if any one prisoner in Brandenburg was harmed in the least, that the officials would have to die themselves. And since the effectiveness of this organization was feared by the officials and since we made it clear to them that also some of the officials were members of this organization, they could not hope through the death of the political prisoners to avoid their punishment. All of this together had the effect that at the moment when the question of the calling in of any help in the guarding of the prisoners, and thereby I mean an SS troop, in the penitentiary, through the director of the penitentiary, was being considered by him, by the directors of the penitentiary, the teacher in the high school and the Catholic priest and the protestant clergymen succeeded in convincing the director to have instead two internal officials in the penitentiary; thus, in that way a large decree of security would be obtained in the dangerous times, in the dangerous times of the last days of the war. In any case, the question, the question of transporting of prisoners away and of calling in of an SS troop support was frequently the subject for discussion of the penitentiary officials, management, and it is not at all unimportant that the work of this illegal organization of prisoners was an important factor in not letting this plan be carried out.
Q. I would like to ask another summary question in this regard. You said that the question of transporting prisoners away and the calling in of increased guards was a subject of repeated discussions of management of the penitentiary.
Now, may I ask you how you, as a prisoner, gained knowledge about this?
A. I found out about this through the clergymen in the penitentiary.
Q. May I ask you for the name?
A. His name is Barth.
DR. SCHILF: I have no further questions.
THE PRESIDENT: Do any other Defense Counsel desire to cross-examine this witness? Apparently not. Any re-direct examination? We will hear that now.
RE-DIRECT EXAMINATION (Dr. Havemann) BY MR. KING:We, the Prosecution, prior to the re-direct examination wishes to offer the affidavit of Dr. Havemann, which is NG-399, as Prosecution's Exhibit 240.
THE PRESIDENT: Do you mean you want to offer it at this time?
MR. KING: That is correct, your Honor.
JUDGE BRAND: What is the exhibit number? Will you give me those figures again?
MR. KING:NG-399 and Exhibit 240. III-C.
BY MR. KING:
Q. Witness, defense counsel for the defendant Lautz questioned you at some length on the characteristics of the organization which were associated with Europeans; he referred to the number of foreign workers who were in Germany, who belonged to your organization. Do you know how so many foreign workers happened to be in Germany at that time?
A. Yes. It was known that these workers against their will were forced to work in Germany.
Q. Then, your organization served in part to get messages back to their homeland from slave laborers imported into Germany to serve the war efforts; is that correct?
A. Yes. The organization had as its purpose to bring messages from the foreign workers here in Germany and to exchange them for messages from their homeland.
Q. In your opinion, so far as you know, these messages were not directed toward sabotage, the sabotaging of the German war effort, unless passing on information about conditions in the homeland is sabotage; is that correct?
A. The contents of these messages concerned personal matters of important members of this organization, and in addition there were affidavits for those people who brought these messages, who carried them and they were given in that way an opportunity to get in touch with other members of the resistance movement, and the messages concerned the possible creation of a transporting of these foreign workers back to their homeland.
Q. Witness, during the course of your cross examination by the defense counsel for the defendant Lautz, you referred to the fact that you were at one time assigned duties, other duties while you were in Brandenburg prior to your trial. Do you mean that you were required to work while you were in prison awaiting trial. If you were, could you tell us what kind of work you were required to do.
A. That concerned the work during the time when I was prisoner pending investigation, under investigation pending trial. Did I understand you correctly?
Q. That is correct.
A. Immediately after I was brought into the penitentiary as a prisoner for investigation, pending trial, I was forced to repair old military coats, overcoats, uniforms. I succeeded then in talking to a tailor who was supervising this work and talking him into letting me work at the sewing machine. During the last ten days, before my transfer to Moabit Prison, I then worked at the sewing machine. Another prisoner in detention, pending trial, refused to do the work which he was told to do, and he did so by pointing out that he was a prisoner for interrogation purposes, and thereupon he was punished by two weeks of serious arrest.
THE PRESIDENT: May I inquire whether the redirect examination will consume very much time?
MR. KING: I estimate not more than ten minutes, your Honor.
THE PRESIDENT: The time has arrived for our usual adjournment, and so we will recess at this time until tomorrow morning at 9:30.
(The Tribunal adjourned until 11 April 1947, at 0930 hours).
OFFICIAL TRANSCRIPT OF THE AMERICAN MILITARY TRIBUNAL IN THE MATTER OF THE UNITED STATES OF AMERICA AGAINST JOSEPH ALSTOETTER, ET AL, DEFENDANTS, SITTING AT NURNBERG, GERMANY, ON 2 APRIL 1947, 0930-1630, Justice Carrington T. Marshall, 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: The Marshal will ascertain if all of the defendants are present in court.
THE MARSHAL: If it please your Honors, all the defendants are present in the courtroom with the exception of defendants Rothaug and Engert, who are absent due to illness.
THE PRESIDENT: These two defendants have been excused, and proper notation may be made.
DR. SCHUBERT (For defendant Oeschey): May it please the court: the Court yesterday before taking the afternoon recess announced a ruling regarding the questioning of witnesses who have already made an affidavit. This ruling cane through in the German translation in such mutilated form that my colleague and I did not understand your ruling. We would be very grateful if the court would repeat this ruling agains.
THE PRESIDENT: We will announce the ruling at this time, although not exactly the sane ruling as yesterday because the conditions are different this morning. Just before adjournment the prosecution counsel asked to introduce the affidavit of this witness. The court did not rule upon that at the tine. This morning we are prepared to rule that we will admit that affidavit in evidence for the sole reason that defense counsel cross-examined the witness concerning that affidavit. We are admitting the affidavit but setting no precedent on that point.
But hereafter if the defense counsel do cross-examine concerning affidavits, it will make the affidavit admissible. Now, at this time since we are going to admit the affidavit the defense counsel may have the opportunity of further cross-examination on that affidavit if they so desire.
MR. KING: Perhaps we had better see if defense counsel want to cross examine before my re-direct examination. (Pause). Well, we began re-direct yesterday afternoon. Does the court desire we continue with that, and defense, if they desire to cross-examine, later.
THE PRESIDENT: Inasmuch as we began it is alright in this instance.
HAVEMANN - Resumed RE-DIRECT EXAMINATION - Continued BY MR. KING:
Q. Mr. Havemann, yesterday in his cross-examination counsel for defendants Mettgenberg, Dr. Schief, asked you what you meant by the term "Resistance Movement." I would like to put to you this morning two or three examples, hypothetical examples, of imaginary organizations, and ask you whether or not in your opinion you would have called those, had they been in existence during the war, resistance movements. Suppose we had -- suppose you had in Germany during the war an organization for the destruction of Nazi monuments after the defeat of Germany; suppose, in another instance, you had an organization whose purpose was to rehabilitate Jews in Germany after the war; in the third place, suppose you had an organization to change, after the war, the name of all streets in Germany bearing the name "Adolf Hitler Strasse". In your opinion would you have called these organizations - had they been existing during the war - would you have called them resistance movements?
A. It is my opinion that every organization of opponents of the Nazi regime during the Nazi time in power which undertook a political activity in any way with a view to the future of Germany, that such a group is to be considered a group of the German resistance movement regardless whether this organization was directed against the existence of the then existing states or whether the aims of the organization would be realized only after the Nazi regime, after military collapse.
Q. In other words, would you say that the tens, "Resistance Movement" as you used it, in a generic term, applies to any activities which opposed the political aims of the Party either before, during or after the war?
A. Of course; especially all those who in an organized manner undertook to help those who during the Nazi time were victims of the Nazi regime. All of those were actually in their efforts not concerned with a change in the existing state order but they only wanted to protect those who were victims of the regime. And, of course, naturally, such groups were opponents of the then existing state and they entered into opposition if the state issued certain laws which these groups did not want to recognize as having legal value and for that reason they would have to be considered as part of the German resistence movement. The essential characteristic seems to me to be the actual basis for all these, was the same for all these people. They stated that the Nazi state was contrary to law and inhumane and that they therefore could not be forced to recognize its laws and to act according to them, but that they felt obligated to act in accordance with laws of humanity - human laws - and, of course, most of the members of the German resistence movement were - at least toward the end of the Nazi regime and toward the end of the war - they were quite clear in their minds that it was not within their powers to overthrow the regime. The only thing they could do consisted of helping the persecuted and the victims of the regime with all the means at their disposal and to prepare the new future of Germany which was seriously endangered and to open up a new way for Germany to enter into the community of nations.
Q. Witness, one further question concerning the cross-examination by Dr. Schief. Dr. Schief asked you if it were not true that the 33 persons executed at Brandenburg prison on Hitler's birthday, April 20, 1945, were not already under sentence of death and awaiting execution; to which you answered, "Yes". May I ask you several further questions in connection with the conditions under which these 33 men, 33 persons, were executed? Do you know whether any of the 33 had clemency appeals pending which had not been acted upon?
A. Most of those 33 people who were executed on the 20th of April 1945 were already for some period of time candidates for death - that is, people who had been condemned to death - and they were in Brandenburg penitentiary. It arises from this fact, that clemency pleas had been made for them and with the conclusion of the action taken on the clemency plea were being executed. It is rather improbable that all of the 33 - that the clemency had been denied for all the 33 at the same time. I believe that this order for the execution was based on order from a higher source, and this is evident from the fact that the 20th April, the birthday of Hitler, was chosen for this day in particular for the execution. Of course, from my own knowledge I cannot state what the individual case was - the progress of the clemency proceedings for the individual cases.
Q. On the basis of your knowledge of the executions do you know whether these 33 persons were afforded opportunity for religious counsel at the time of their execution?
A. As far as I know in numerous executions which took place during the last weeks and months of the war religious counsel was not possible. However, my knowledge about this is not quite certain.
Q. Witness, I was directing my question not to general conditions but to the specific instance in which these 33 were executed. Will you apply your answer to that situation?
A. I found out after my liberation from the penitentiary that at the execution of these 33 there was no religious counsel admitted.
MR. KING: We have no further questions on re-direct examination.
THE PRESIDENT: We will inquire at this point whether any of defense counsel desire to further cross-examine concerning the affidavit which has been admitted. (Pause). We hear no further request, and this witness may therefore be excused.
(Witness excused)
MR. LAFOLLETTE: I have two documents your Honors. -Perhaps the witness can be sworn now and then I can put the documents in.
BERTHOLD SCHWARZ, A witness, took the stand and testified as follows BY THE TRIBUNAL ( JUDGE BLAIR):
Stand up and hold up your right hand, and repeat after me the following oath:
I swear by 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
MR. LAFOLLETTE: If your Honors please, Document NG-795. This is not in a Document Book. It was distributed on the 9th of April at 5:30 p.m. It will be Exhibit No. 241. In case your Honors do not have it I have here four copies.
THE PRESIDENT: Are you sure this will be 241?
MR. LAFOLLETTE: As I have it, yes, it would be No. 241.
THE PRESIDENT: Yes, that is correct; No.241.
MR. LAFOLLETTE: Dr. Brieger, do you have it?
DR. BRIEGER: (Pause. No answer).
THE PRESIDENT: Should this affidavit become part of one of the Document Books?
MR. LAFOLLETTE: No, your Honor, it is a separate document. It will not be put in any Document Book.
Dr. Brieger advises me that it is the first time he has seen it in the German version. However, the receipt indicates that it was delivered to the Defense Center, Room 394, at 1730 on April 9; 16 German copies and 4 English.
I don't care to read from the Document and I offer it was Prosecution Exhibit 241. I won't read from document because I have felt myself that it has probative value and I wish to proceed as rapidly as possible.
THE PRESIDENT: (Indicating a document just handed him) Is that the name of this witness?
MR. LAFOLLETTE: No, no.
THE PRESIDENT: It will be received in evidence.
MR. LAFOLLETTE: Now, Document 855 was distributed at 1350 hours yesterday. Admittedly the full 24-hour period has not expired.
THE TRIBUNAL (JUDGE BRAND): You say it Was distributed yesterday?
MR. LAFOLLETTE: Yesterday at ten to two.
THE TRIBUNAL (JUDGE BRAND): Where?
MR. LAFOLLETTE: As it properly should be distributed, your Honor, the Defense Center.
THE TRIBUNAL (JUDGE BRAND) Not to the Bench, however.
MR. LAFOLLETTE: No; I have copies for the Bench. I have here copies -- at least one copy, your Honor -- and of course the time has not expired; we could not get this distributed as fast as we had hoped to. Dr. Brieger would be perfectly within his rights to object to its being introduced at this time. However, it would permit us to crossexamine both against the witness and the document, if he has no objection. However, I shall not offer it as an exhibit actually over Dr. Brieger's objection.
DR. BRIEGER: No objection.
MR. LAFOLLETTE: Thank you very much.
I offer as Prosecution Exhibit No. 242, Document NG-855, which is the affidavit of Dr. Berthold Schwarz.
THE PRESIDENT: It will be received in evidence.
BY MR. LAFOLLETTE:
Q. Will you state your name to the court, please, Doctor?
A. Berthold Schwarz.
Q. And what is your profession?
A. I was Oberstaatsanwalt, Chief Public Prosecutor in Heilbroonn.
Q. You are retired, I understand?
A. Yes, I am.
Q. Will you state to the court your legal training and the Positions which you have held - particularly identifying the places where you held your legal positions.
A. In the year 1942 --- 1932 I mean -- I was assistant prosecutor in Stuttgart. In 1934 I became public prosecutor; at the Prosecution Stuttgart I was appointed prosecutor. There I worked until 1936. From 1936 until 1938 I was assistant expert referent at the General Public Prosecutor's Office in Stuttgart. From 1938 until 1941 I was with the Chief of Counsel with the Prosecution in Stuttgart at the Special Court, as expert and representative of the prosecution. This activity was interrupted through my being drafted into the Wehrmacht at the end of August 1939. However, in February 1940 I was declared as unfit for military service. That was through the efforts of the prosecution in Stuttgart. Then I was, as I said -- I further worked with the prosecution in Stuttgart -- continued to work with the prosecution in Stuttgart until the end of 1940 or the beginning of 1941. Then I was again ordered to work in the office of the General Public Prosecutor as expert for high treason cases, for treason cases, for complaints, and for cases of honor, and cases against lawyers. About the Spring of 1942 I was transferred from this Division of the General Public Prosecutor's office which I just mentioned, which is called the Court Division, because of the work that is being done there, into the so-called administrative Division of the General Public Prosecutor's Office.
In the administrative Division of the General Public Prosecutor's Office I was mainly concerned, mainly working, with the clemency pleas and with the examination and submission of indictments and sentences to the Reich Ministry of Justice. In September 1944 I took this position. After the destruction of Heilbronn by air attacks on the 4th of September 1944 I transferred my office which had been destroyed by bombs, to Schwaebisch Hall. In Schwaebisch Hall I was still active until the American troops entered in the middle of April 1945. Then I was relieved of my office and returned to my family who are still today in Langenburg near Schwaebisch.
MR. LA FOLLETTE: Thank you. Now, May I say to the Tribunal that tho next now series of question are drafted for tho purpose of laying the foundation for tho later introduction of certain newspaper reports of eases as well also subsequently in this case against Dr. Cuhorst. I would like to lay a foundation to show why we cannot produce the records themselves. As to this witness I only want to go into tho natter which shows the connection between the newspaper articles and their accuracy and evidentiary value. Dr. Schwarz, is it correct to say that the President of tho Oberlandesgericht at Stuttgart as part of his actions of tho prosecutor's staff attached to the Court or one of tho judiciary?
A Yes, that's correct.
Q During tho tine that you were at Stuttgart was there such a press relations officer?
A Yes, that was tho Chief of tho Justice Press Liason Office.
Q What were tho duties of that officer with reference to furnishing information to the press as to tho facts in trials or in sentences or with reference to executions?
A The Chief of tho Press Relations Office in the Justice Department had as his tasks to have contact with tho press and above all to report to it the schedules of the Courts. From those generally, tho newspapers were--especially the Stuttgarter NS-Kurier -- tho newspapers were supposed to find out into which especially important trials and newspaper reporters had to be sent to attend. For this purpose the Chief of the press Relations Office in the Justice Department generally marked these case for special notice which probably would be of interest for the newspapers.
The Chief of tho Press Relations Office partly formulated press dispatches himself and sent then to tho newspapers. Probably, however, it was as follows, namely that tho newspaper reporters themselves in most cases wrote their dispatches. However, these dispatches had to be submitted to the Press Relations Office so that one can say that there was a censorship. After tho reports had appeared there were clippings made and these were sent to tho prosecution as well as to tho expert working on the case and into tho Court for their information.
Q Thank you, very much. Was the NS-Kurier -- was it or was it not the organ of the Nazi Party in Stuttgart?
A Yes, it was.
Q Did you official duties during the time that you were in Stuttgart bring you in contact with tho defendant Cuhorst?
A Yes, it did and that was during my activity as representative of the prosecution at the Special Court and also during my activities in the General Public Prosecutor's Office as representative of tho prosecution in matters of high treason and in treason -- because of treason cases.
Q Do you know any facts about tho defendant's membership in and his relative position in the Nazi Party at Stuttgart?
A Yes, I knew that Herr Cuhorst already before 1933 was a member of the Party. Ho was one of the few higher officials of tho Justice Department who were already before 1933 members of the Nazi Party.
Q When was the defendant Cuhorst made president of the Special Court at Stuttgart?
A I do not remember the year any more. However, I know that in 1933 Cuhorst was -- first came to the Ministry of Justice where, as far as I know he was Oberregierungsrat, Chief Government Counsellor, and in 1935, it may have been when he was appointed as President of the Senate at tho District Court of Appeals Stuttgart but I don't remember tho year exactly any more.
At the District Court of Appeals Cuhorst was at first Presiding Judge of the Senate that tried civil cases. After sometime he, however, became presiding judge of the First Penal Senate or Division. What year that happened, I don't remember either.
Q Than the defendant was President of the First Criminal Senate of the District Court of Appeals at Stuttgart and also president of the Special Court at Stuttgart most of the time you were there; is that right?
A Yes, I know that Herr Cuhorst was also Presiding Judge of the Special Court Stuttgart and that ho became such as successor of Landesgerichtrat Flachsland.
Q Have you seen the defendant Cuhorst open his court in the trial of criminal cases?
A Yes, I saw very many cases when I was prosecutor while Cuhorst was Presiding Judge.
Q Will you describe to the Court tho manner and the physical mannerisms in which he opened his criminal courts as Presiding Judge?
A Herr Curhorst was a person -- he himself was presiding and one person combined presiding judge of the Penal Senate of tho District Court of Appeals. The opening of the trial was done by him in a very strict manner. Ho waited as usual until all of tho judges had come from the judges' chambers and had taken up their places in tho Courtroom. It was prescribed by order -- decree of tho Reich Ministry of Justice that the German salute, tho Heil Hitler greeting, Was given by the entire court including the prosecutor and the Court-reporter and that this Heil Hitler greeting was answered by tho audience and by anybody else who was present in the courtroom. Herr Cuhorst, as I said, carried on this ceremony in an especially strict and formal manner. He raised his hand very quickly and I repeatedly noticed that in doing so ho clicked his heels very audibly. It always created a military impression.
Q In criminal cases what was his customary practice in fixing tho date for trial after tho indictment had boon lodged with tho Court under which he was proceeding?
A Herr cuhorst sot the date of the opening of the trials himself. Ho reserved the right to set them and he determined the dates of tho opening of the trial, even for cases where other judges presided with the exception of the Second Senate, Penal Senate President Kiefer. Ho sot then himself. Of course, there wore very many cases for which tho opening which had to be determined by Herr Cuhorst in a certain sense made his own time-table according to which the trial had to be conducted and as a rule the other presiding judges had to comply with his time-table.
Q With reference to the time that expires between tho lodging of tho indictment and tho time fixed by the defendant Cuhorst, was that long or short or was there a regular custom or what do you have to say about that?
A That differed quite a lot. It happened that an indictment was served which then stayed at tho office upstairs for weeks until tho date of tho opening of tho trial was finally set. Quite frequently Cuhorst lot a largo number of cases co-incide. Especially cases in which tho Special Court or the Penal Senate intended to go to tho place of the crime in order to conduct the trial and tho place of tho crime or near tho place where the crime occurred and it so happened that between the introducing of tho indictment and the setting of tho date of the opening trial there was often a long period which elapsed. It happened also, however, that the date of tho opening of tho trial was sot very quickly, very soon after the serving of tho indictment. The setting of the date of tho opening of tho trial itself was often very short so that above all for the defense counsel there was little time to concern themselves with the case -- to deal with the case --work on tho case. In another case I know about in which tho defense counsel had sufficient opportunity to study the files -- the documents.
Q. Dr. Schwarz, was there any longer time given for those cases in which the death penalty could be given than in cases which it could not be given; was there any consideration of that fact as you observed it?
A. As far as I could observe that did not play any special role in the setting of the date. It was natural that if it was a very big case that the defense counsel could study the act. Could not be given the document one or two days before to study them, so it often happened that somewhat larger entrim appeared. But, that special consideration of time should be expected, that I would not know.
Q. Who had possession of the indictment and of the files with the indictment from the time it was filed with the court?
A. The documents themselves were given to the business office of the special court or penal senate and the indictment, in addition to the main indictment, there were a number of copies of the indictment. These copies of the indictment were given to the experts working on the case and Referent and associate judge. The documents themselves remained at first with Herr Cuhorst who also determined who was to be the court reporter, and then they were given to the reporter for the preparation of the case.
Q. Did Herr Cuhorst appoint the defense counsel in the cases of which he was the presiding judge?
A. As far as they were not chosen by the defendant in those cases before the Special Court, so-called official defense counsel had to be appointed; that is in cases which one had to expect a penitentiary sentence and, of course, where the death penalty could be expected, in the prosecution for the population. In cases where the legal question for the defendants seemed necessary, and in cases where the defendants in accordance with their personality probably did not defend themselves sufficiently alone.
The appointment of official defense counsel, appointed by the court, were as far as I know also the task of the presiding judge. I assumed that Cuhorst appointed official defense counsel for the court.
Q. Now, how did the defense counsel gel access to the files; to whom did they have to apply in order to receive the files?
A. For this purpose the defense counsel had to turn to the business office official of the Special Court and the penal chamber, and he made application to be given the documents and then he had to fill out a questionnaire, and by means of a memorandum he was told when he could get the documents. They were sent to him if he was residing in another town or if he was in Stuttgart he could come himself and get them.
Q. Who determined whether he could get them and whether he would be entitled to receive them?
A. I am not informed about that. Herr Cuhorst might have made that decision, end also the court reporter in some cases, even the office itself did somewhat perhaps after discussing the question with the judge, determined the appointed time and when the defense counsel would be given to look into the files.
Q. What methods were available in trials under Herr Cuhorst to defendants, through their counsel, to obtain evidence with which to refute the facts set out in the files of the case?
A. That sufficient evidence was as a rule in the files themselves, and the defense counsel of course was given the opportunity to find out about these documents.
Q. Let me make myself a little clearer possibly. Let us assume that a statement was in the files which stated that a defendant had done certain criminal acts, and that a defendant believed that witness who had been present would testify that the defendant did not do the acts; what opportunity did the defense counsel or the defendant through his counsel have to obtain such evidence?
A. The defendant and the defense counsel had the opportunity to make application for evidence in writing a and to ask to have a witness appear in court. The court or the reporter had to make the decision as to whether the witness would be called to testify in the trial or not. It depended upon whether the facts the witness would testify about would be of probative value. If the defense counsel did not suggest having the court call a witness, he was free to call the witness himself, and to have him appear in the trial.
Q. If the case was serious and the files, therefore voluminous, then the shorter the period of time, between the time that file was made available to the defense counsel, and the time the case was set for trial, increased the difficulties of the defense counsel to obtain sufficient evidence, did it not?
A. Yes.
Q. Let me ask you this: Were there any resources of the court used or available to the defendant by which a witness could be required to come in, if the defendant wanted him, but the court, itself refused to call him?