2), a legal adviser to disclose any communication between himself and a client made in the course of a professional relationship except when the communication was part of, or connected with an unlawful act or omission."
THE PRESIDENT: Now we will hear you, Dr. Haensel.
DR. HAENSEL: I would ask the Tribunal not to assume that this affidavit in any way was to be done away with by the defense by having Dr. Behling employed here as a defense counsel. There are situations in which perhaps even a legal expert, or at any rate a person who should be a legal expert, makes a mistake. Just in this trial, of jurists, naturally, it is particularly difficult to understand that a legal expert should not know certain rules; several days ago we heard here how a question was put to a witness, asking him to describe in detail the course of a proceeding, and say first of all how many judges were sitting in the dock. "Sic venia verbo," that was a slip of the tongue.
In all seriousness, we must not get into a situation where a question might be asked, How many defense counsel have testified for the prosecution. I think the fact that Dr. Behling finally became employed here as a Defense Counsel excludes the use of the affidavit, and that because, so far as I have learned, in the meantime I think, testimony in American procedure does not consist only of an affidavit. But the use of the affidavit is in all circumstances connected with the possibilities of cross examination being made.
I have brought Winthrop along with me. I would not like to expect the Tribunal to listen to my English, which I think is quite good but which, I have often noted, is incomprehensible to English and American cars. Because of that I would ask the translator to read the text on Page 342, where I have marked the passage.
THE PRESIDENT: One moment, We'll have it read, but before it is read, Winthrop as an author is not familiar to me in my uneducated situation. I am wondering who Winthrop is.
THE INTERPRETER: "Winthrop's Military Law and Precedents, Second Edition."
THE PRESIDENT: Well, we'll hear it read for what it is worth. Proceed.
THE INTERPRETER: "Cross Examination; its Scope in General: So essential is cross examination, or the opportunity to cross examine, to the acceptance of facts as legal testimony, that all ex parte statements whatever, whether or not sworn to, are radically incompetent as evidence on the merits and should be absolutely excluded by the court, even though the party entitled to object may be willing to consent to their introduction."
DR. HAENSEL: Concerning cross examination, an attack on the credibility is part of that. That alone would cause an impossible situation, if a Defense Counsel might have, in certain circumstances, to present a colleague as not credible.
Furthermore, it is impossible that the witness under cross examination is suddenly bound to say, "I can not answer this question because of my professional obligation to secrecy."
Consequently, the same situation has arisen as if colleague Behling had fallen ill, so seriously ill that he can not appear in Court.
I believe, therefore, that we must assume that because there is no opportunity for cross examination, this affidavit can not be produced here. I regret that there may thus arise a disappointment for the Prosecution, but the same would happen if physical circumstances prevented our colleague Behling to appear and to stand a cross examination.
JUDGE BRAND: Will Counsel bear with me while I explain one matter which may have been misunderstood in my previous comment? I want to assure both Dr. Behling and all of the other Counsel for the Defense that no reproach was intended in my suggestion, nor did I intend, nor did I intimate that Dr. Behling was employed as attorney in order to exclude the affidavit. I did suggest a consideration of the legal result which would follow the adoption by the Court of the rule for which Dr. Kubuschok was arguing. I am sure that Counsel understand that there was no reproach intended.
DR. HAENSEL: Thank you, Your Honor.
THE PRESIDENT: The Tribunal will make a ruling at this time. The ruling may not be as broad as either the Prosecution or the Defense may desire, but it is as broad as the Tribunal is willing to make at this time upon the facts which have already been presented.
I should further state that no member of this Tribunal has the faintest notion or idea or information as to what this affidavit contains. The ruling we make is on the general proposition of the admissibility of an affidavit made by a person when he is not -before he has yet been employed as counsel.
It appears from the statements on both sides that we have under consideration here an affidavit that was made before Dr. Behling became Counsel in this case.
We had nothing to with Dr. Behling's selection. As I remember it, the application was made by Dr. Kubuschok to have him appointed as his assistant Counsel, and we approved that, just as we have approved every application that has been made. We had nothing to do with that. But the ruling of the Court is that if an affidavit has been made before he became Counsel and before any confidential relations had been established, the affidavit is admissible in evidence.
MR. LA FOLLETTE: If Your Honor please, I think that the Court has been very fair and particularly fair in deciding the question before the affidavit has actually been submitted. I know the Tribunal understood that I was not at this time prepared but that Dr. Behling was going away and wanted this to be understood.
THE PRESIDENT: We made the ruling at this time for that reason. Ordinarily we would wait until the document was offered. It had been stated that Dr. Behling desired to be away. We thought that we would give him the benefit of our ruling.
Mr. LA FOLLETTE: That is what I understood. I appreciate very much the action of the Tribunal on behalf of myself and I think that I can speak for Dr. Behling on this occasion. I will again say now that I will withhold the offering of this affidavit as long as I can, but I will not delay the final closing of the plaintiff's case if, when that time comes, Dr. Behling is not here.
I ask again now to renew my request, unfortunately, that we recess until Tuesday morning. We can not do anything else. I am sorry.
THE PRESIDENT: At this time the Court will recess until ---oh-
DR. KUBUSCHOK: The discussion of this case today came as somewhat of a surprise. Therefore, I may have made a mistake earlier today in limiting the facts and in not presenting them to you in their full extent. I do not know whether I shall do so now or whether I shall do it when I have the files in my hand, but I should now like to point out that Dr. Behling worked for the defense of Dr. Schlegel burger before he deposited the affidavit.
He collected affidavits. At the and of February I asked him already to come here so that he could join the Defense.
Later on, on the 1st of March, it was only on that date that he made this affidavit.
MR. LaFOLLETTE: If your Honors please, I would like to say this, that if when I offer the affidavit there is to be an issue of fact, I will ask that Dr. Kubuschok and anyone else be sworn and that we not accept statements from the bench, and I will produce Mr. Flechtheim down here Now, I don't want any discussion of facts at this time; I don't think it is fair.
DR. BEHLING; May I please the Tribunal it is always painful to say something in one's own cause, and in particular in such a precarious situation in which I an finding myself at the moment. I would not have spoken today unless the discussion here had come very suddenly. To correct my colleague, Dr. Kubuschok, I must say the following: Before I came to Nurnberg, I did not work for the Defense. I merely within the scope of matters of civil claims, which were completely separate from the trial here, conducted negotiations in Berlin and in the Russian zone for the defendant Schlegelberger on those natters. When I was summoned to go to see Dr. Flechtheim, the question of my appointment at Nurnberg had not been settled. Dr. Flechtheim told me when I pointed that out to him, and when I told him that I night possibly become a defense counsel at Nurnberg, that I should discuss the natter in Nurnberg with the gentlemen of the Prosecution. I then went ot see Mr. LaFollette on the assumption that Berlin would have acquainted him with the facts, and that in particular he would have my affidavit in his possession, as I had boon told that the matter of my giving this affidavit was very urgent. Like hr. LaFollette, I regret the misunderstanding which arose from our discussion at the time on account of translating mistakes.
It would have been a natter of course for me never to have accepted an appointment as a defense counsel if I would have had to appear as a witness for the Prosecution, and that I only took on my appointment as a defense counsel when I believed that the Prosecution did not wish me to appear as a witness. Those were the motives which at the time led to me depositing my affidavit, and I would ask the Tribunal to be convinced that today in consideration of the impressions I have gained at the trial, I an in a very definite conflict with my conscience, but I believe that the Tribunal will find the solution which will remove these difficulties.
THE PRESIDENT: As we previously announced, at this time we will recess until next Tuesday morning at 9:30.
(The Tribunal adjourned until 6 May, 1947, at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United. States of America, against Josef Alstoetter, et al., defendants, sitting at Nurnberg, Germany, on 6 May 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 No. III.
Military Tribunal No. III is now in session. Cod save the United States of America and this Honorable Tribunal.
There will be order in the court
THE PRESIDENT: Mr. Marshal, you will please ascertain if the defendants arc in court.
THE MARSHAL: May it please Your Honors, all the defendants are present in the court room with the exception of defendant Engert who is absent due to illness.
THE PRESIDENT: The defendant Engert is temporarily absent at his own request. The proper notation may be made.
With reference to the defendant Engert, some matters have been called to the attention of the Tribunal and the Tribunal will make no order concerning the defendant Engert except this: that he must not be removed from the vicinity of Nurnberg.
At the request of the prosecution, I have secured from the Secretary-General a document -- it doesn't bear the document number -I don't know what the correct procedure is on that. I think I will turn it over to the Secretary-General in the room.
MR. LA FOLLETTE: Is there an exhibit number attached to that?
THE PRESIDENT: There was. When they brought it up to my office, I am sorry to say I sighed the receipt on the notice that was sent up with it, and nor I don't have the number. Maybe the prosecution should remember better than I. It's the document that they desired.
MR. LA FOLLETTE: I have no knowledge of the request. Perhaps I can look at it. (Document is offered to Mr. La. Follette.) Regarding that, Your Honors, Document NG-381 was given a number at the last session, but because the 24 hours had not elapsed by a short period of time, it was not introduced.
It's Document NO. NG-204, Exhibit 331 that had been identified and hold back and now is formally offered for all purposes.
THE PRESIDENT: It may be received without condition.
MR. LA FOLLETTE: I am advised that originally when that exhibit was offered as 381, part of the exhibit was missing. It's now been supplied.
JUDGE BRAND: May I ask you: Exhibit 381, according to my notes was first marked only for identification. Does that apply to NG-204?
MR. LA FOLLETTE: That is right, your Honor.
JUDGE BRAND: Well, wasn't it received after that?
MR. LA FOLLETTE: We thought it was received. I wasn't here, but as I understand from Mr. King after it had been marked it was found that the exhibit as contrasted from the documents in the books had a page or two missing. Those have now been supplied and the exhibit is now offered as Exhibit NG-204.
JUDGE BRAND: Have we received the extra pages?
MR. LA FOLLETTE: The extra pages were in the document book, Your Honor; but not in the exhibit. That was the trouble.
I understand that there is now no objection. Is that correct, Dr. Schilf? (Dr. Schilf nods.)
Now, if Your Honors please, with reference to Exhibit 2967, which is either a PS document or an NO document, that is one of those unexplainable things that happen. The prosecution did not request this document. The document got into our document books by mistake. I think that yesterday Monsieur Raymond was looking for this document and said that it wasn't in the Secretary-General's office, and that he was going all around the place to find it. Anyhow, here it is, and if I may return it to the Secretary-General.
JUDGE BRAND: What is the document which had been offered and received in evidence and which the prosecution asked to have returned to the court?
MR. LA FOLLETTE: Your Honor taxes a very bad memory, but that was the other day that I asked that it be brought back so that a witness who took the stand might have it before him. It was in connection as I recall, with the witness Elkar who identified a document which had previously been introduced -- a letter with reference to limiting the legal rights of Poles, which came from the "Braum-Haus" in Munich. Your Honors did produce that document and the witness Elkar had it before him when he testified. That is the only document that I know about.
JUDGE BRAND: Has that gone back now?
MR. LA FOLLETTE: That was delivered back to the Secretary-General as soon as the witness Elkar finished his testimony. I don't know anything about it. I just want to return it to Colonel Nesbit and get it out of our hands.
THE PRESIDENT: I think I remember distinctly that it was at the request of some member of the prosecution staff that I was asked to procure it from the document room. There was a proper order for it, and it appears against this morning.
MR. LA FOLLETTE: If that happened, I again apologize to the court. I know nothing about it. The request must have come over the telephone because I don't think it took place in open court. The document are had was in connection with the witness Elkar and we now return ti. For the record, I now deliver this in person to Colonel Nesbit.
THE PRESIDENT: That was No. 2967-PS?
MR. LA FOLLETTE: That is right, Your Honor.
May Your Honors please, I now occupy the unenviable position of advising the court that the documents that I hoped to have arc not ready. I did discuss last week the fact that the document room was forced to move, and in that connection they were delayed. Thursday will be a holiday, but notwithstanding that, we hope to have adequate documentation to proceed beginning Friday. We also anticipate having at least one witness in Nurnberg at that time with whom re can proceed on Friday.
We hope that an interlude between today and Friday will permit us to proceed in an orderly manner to finish tho prosecation's case during tho week of May 12th.
I don't like to make a firm commitment, but I will say to the Court that in the absence of unexpected witnesses, or the discovery of documents which we do not know anything about, now, we can see the last witnesses that we want to call and all of the documentation that we wish to offer, and that I believe can be completed by the end of the week of May 12th. Finding myself in this position now, I must ask the Court, I move the Court respectfully -- and with a good deal of regret -- to recess until Friday morning.
THE PRESIDENT: There seems to be nothing to do except to grant this motion for a little recess until next Friday morning; but it now clearly appears to everybody -- and, therefore, it must clearly appear to defense Counsel -- that the Prosecution has almost reached the end of their case in chief. It seems that at has always been customary and proper that there should be a short intermission after the Prosecution closes its case to permit the defense to become organized and to start their defense; but inasmuch as we have already had some recesses up to this time, and are now facing a longer recess, we hope that defense Counsel will philosophically take that into account so that the interim, between the time that the Prosecution actually closes its case until the Defense can organize and be ready for the beginning of the defense, may be relatively shortened. Just how much that should be shortened, of course, is difficult to say at this time, but we trust that these recesses may be taken into consideration and that a reasonably period may be shortened by the same number of days. In other words, they are asked to start their preparation now. I can see no reason why they cannot. We hope they have already started it, because the Prosecution is certainly almost at the end of their case. we know no more about that than the defense Counsel definitely, but from the statement made by the Prosecution, it is apparent that there is not much more to rebut.
DR. KUBUSCHOK (Attorney for Defendants Schlegelberger and von Ammon):
May it please the Court, on this occasion I should like to present one question. Affidavits have been submitted on the part of the Prosecution where the necessity arose to cross examine, to subject to cross examination the authors of these affidavits. These witnesses who will appear referred to the presentation of evidence by the Prosecution. It should be considered a systematical ray that these cross examinations should take place immediately after the presentation of evidence by the prosecution. I ask, therefore, for a. statement of the opinion of the Tribunal so that, if possible, we should be in a position today already to submit the names of those affiants whom we would like to have called for cross examination.
THE PRESIDENT: We might inquire at this time, in view of that request, which seems a very reasonable and a. very orderly ray cf doing the matter, we might inquire whether the Prosecution could bring such witnesses in as they may desire to cross examine and have that out of the ray this week -- such witnesses as the Defense might desire to cross examine.
MR. LAFOLLETTE: If your Honors please, that is one of the reasons; that curing these three days that I have been forced to ask for a recess, it may be that if there are witnesses, within the immediate range ox Nurnberg, who have given affidavits and who have not been cross examined on them, that we can get them in here, but the machinery of getting witnesses, particularly the machinery involving transportation, where the witnesses don't -- although they arc voluntary -don't choose to come by rail is one of the matters which has made me ask for this delay. This court, of course, is not too concerned with explanations or excuses, but I think a carefully worded conservative statement is proper so that all may be advised. The obtaining of witnesses for O.C.C. is furnished to O.C.C. by that part of the army which is called a supporting part of the army.
I can't give the unit numbers; there are offices within O.C.C. which request witnesses, but the transportation is not within the control of operated by O.C.C. Therefore, we must then request that transportation be furnished. I do know that presently we are using two pieces of transportation which were obtained as a result of -- let us say -- personal negotiations; there arc other units trying cases who also want to bring in witnesses. I do not believe that we can gain any tame this week by bringing in such affiants. I think first, as a matter of fact, that it would be well for both of us -- both sides -- to review the affidavits which have been presented by the Prosecution where the affiant has not been produced for cross examination. If are can produce any of those within a short time we would do so, but there is only today and tomorrow, Thursday is a holiday; so that while I can certainly understand from Dr. Kuboschok's position that it would appear to be orderly, I think the Court will understand -- and I hope the Defense Counsel will understand -- from what I have said that it is not a practical solution to use the balance of this rock.
JUDGE BRAND: Don't you agree, however, that at least immediately after the Prosecution has finished its case in chief, this cross examination of Prosecution affiants should take place before the Defense calls their own witnesses?
MR. LAFOLLETTE: I think it would be much more orderly, your Honor; I am certainly in agreement with that, and during this time we will try to make a list of those affiants who have not been cross
JUDGE BRAND: I think the Defense should follow the suggestion made and give you a list -
MR. LA FOLLETTE: Of those they want.
JUDGE BRAND: In accordance with the rules that arc demanded for the presentation of these affiants for cross examination.
MR. LA FOLLETTE: Exactly, and if they will do that at the earliest possible date, so that the meager transportation that is available can be better utilized, because there arc other courts operating and we must compete with them. Do that if by tomorrow possible, certainly not later than Friday, and prefer ably tomorrow possible, certainly not later than Friday, and preferably tomorrow evening; I agree that that is a more orderly process, and we will try to get the bodies in here, the individuals in here.
THE PRESIDENT: The first action must proceed from the defense Counsel; they are the ones who are interested in the cross examination, and I think they should furnish a list of those affiants whom they desire to cross examine at the earliest possible date; may be they are ready now; are you ready now to submit that list to the Prosecution of the affiants that Defense Counsel desire to cross examine? You can answer that by the nod of your head without going to the podium.
DR. KUBOSCHOK: In the course of the day we shall submit the list to the Prosecution in writing.
THE PRESIDENT: That seem to be the best that can be done, but any how, let's have those as promptly as possible so that the Prosecution's final closing need not be delayed by reason of this list being delayed. We will, therefore, recess at this time until Friday morning, 9:30.
(The Tribunal adjourned until 9 May 1947, at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America, against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 9 May 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: Mr. Marshal, you will please ascertain if the defendants are all present.
THE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of the defendant Engert, who is absent due to illness.
THE PRESIDENT: The absence of the defendant Engert is with the permission of the Tribunal. Let the Secretary General see that the proper notation is made.
MR. WOOLEYHAN: The Prosecution calls the witness Schosser.
LUITPOLD SCHOSSER, a witness, took the stand and testified as follows:
JUDGE BLAIR: Hold up your right hand and be sworn, please. Repeat after me the following oath:
I swear by God, 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 MR. WOOLEYHAN:
Q Witness, would you please state your full name and your profession?
A My name is Luitpold Schosser; I am a Catholic priest.
Q Father, where is your parish?
A My present parish is at Wolffsegg, near Regensburg.
Q Has that been your parish for some tine in the past?
A That has been my parish for three years and three months.
Q Where was your parish before that?
A Before my trial, my parish was at Filsegg.
Q Father, where were you born, and when?
A I was born on the 28th of April, 1909 at Bernhausen, in the Holledau.
Q What education did you have, and where was it?
A For four years I attended grammar school in my own hone village, Hadersbach. Then, for nine years I wont to tho high school at Straubing. Then, for five years I attended the university at Innsbruck, and for one year the Theological Seminary at Regensborg. In 1934 I was consecrated priest. Then I was assistant vicar in several places. At the end I was at Filsegg. Then my trial started and after my trial, from the 1st of February 1944, I have been a priest at Wolffsegg.
Q Father, while you were a priest at Filsegg, were you ever arrested and imprisoned?
AAt Filsegg I was arrested twice, and at Regensberg I was arrested once, because after my arrest I was not allowed to go back to Filsegg.
Q Would you please state the dates, so far as you remember, of each time that you were arrested and imprisoned?
A Yes. For the first time I was arrested on the 1st of June, 1942, and I was kept in prison for fourteen days by the police. That warrant was filled in by the Gestapo. After I had been imprisoned for two weeks, I was released. In the meantime, a second warrant for my arrest was issued by the Special Court of Nurnberg, and on the 1st of July I was arrested again. Then, until the 21st of August -
that is, for seven weeks--I was in custody pending trial at Weiden, in the District Court prison of Weiden. Then, again, I was released and a few days later another warrant for ay arrest was Issued, again by the Special Court of Nurnberg. Then, I had been in prison until the 18th of December, 1943. For the third tine I was arrested that was at Regensberg--and ay arrest was made by the Gestapo.
So, altogether, I was arrested three tines; twice at Filsegg and once at Regensberg.
Q Father, at any tine during any of these three arrest did the police ever tell you who had signed the warrant for your arrest?
A Yes, when I was arrested the second tine, the police commissioner of Filsegg told me that the warrant was issued by Rothaug from the Special Court of Nurnberg.
Q After you had been arrested, Father, and imprisoned those three tines that you describe, you also mentioned a trial. Were you ever indicted and tried before a court?
A My trial took place on the 18th of December, that is, on the 19th of December, 1942, and the trial took place before tho Special Courts of Nurnberg and Amberg. The trial took place because of a malicious attempt, during a sermon which I had made fifteen months before at Filsegg.
Q Father, you state that you wore tried on December 19, 1942, by the Special Court of Nurnberg, but that the trial took place in Amberg. Is that correct?
A Yes, that is correct; it took place at Amberg, at the Town Hall.
Q Would you please repeat again, so far as you know, the violation of law for which you were indicted and tried?
A Well, the first arrest originated from the burial of a dead Pole who died at Filsegg and was sent over to the morgue from the hospital, as was customary there with the dead. The dead Pole, as every other Catholic, was transported from the hospital to the morgue, therefore as the church had given him the sacrament in the morning.
In the morning of this day he asked for a priest, and he was prepared for death. During the afternoon, then, he died. In the evening before we had our evening vespers--that was on a Sunday---the attendant of the morgue came to see me and he informed me that I had to order the transport of this dead Pole from the hospital to the morgue, and would have to take over the arrangements. I asked him whether it was permissible for me to do that, and he said, "Yes; the Magistrate has ordered that you do it." Therefore, I had no further doubts, and I went to the morgue, that is, to the hospital, and I ordered the transport, which was sponsored by the church.
Before I made my sermon at the evening vespers, as is customary at every transport of the dead, I communicated that to my parish people, that later on a dead Pole would be transported from the hospital to the morgue, because the people want to know who is the dead, who is in the coffin, in order to be able to know whether they have any obligation to attend the funeral or not. Of course, as it was a Sunday, there were quite a number of people in the church, comparatively, and quite a number of them attended the funeral, because thus they had an opportunity to go to the cemetery, which Was situated outside of our village.
Now, because of this communicating the fact to the people I was charged mainly by the Special Court. They considered it an invitation, that is to say, that I intentionally invited the population to attend the transport of the dead Pole. That was the main charge, made against me by the Special Court of Nurnberg.
They said that at this occasion, as the president said during the trial, I was said to have expressed religious feelings and used them intentionally in order to sabotage the directives of the State.
Q Father, may I interrupt, please? You state that at the trial, the main charges, so far as you know, were this conducting of a funeral for the Pole and a sermon that you preached the previous year. Is that correct?
A Well, the main charge in my trial was the sermon. That was the real reason for the trial, during the trial sermon was not so much dealt with but rather this whole matter with the Pole was dragged into the trial. In each detail it was talked about--just about this matter of having had the Pole transported. I was considered a malicious priest, and this was told to the public.
Q Father, when this police official, at the time of your second arrest, told you that Rothaug had signed the order for your arrest, how did you feel when you learned that?
A The police Commissioner in Vilseck told me lit orally that this arrest was originated by Rothaug, and as I heard it then I know," Now I don't get out of prison again. Now I am in for good." Because during my first arrest in prison, I already had an insight in the work of the Special Court, and that way during my second trial I was quite certain that I wouldn't get released any more.
Q Father, at your trial, do you remember who was the presiding judge?
A The presiding judge was the director of the district court, Dr. Rothaug.
Q At your trial, how many witnesses were called by the prosecution against you?
A There were four witnesses from Vilseck who had been summoned. I can give you the names.
Q I don't believe, Father, that the names arc necessary. How were these witnesses treated by the Presiding Judge , so far as you obeserved?