When I said we want them examined, I didn't mean that we have any desire about it. If defense counsel wants to examine them, that is their privilege either to have them or to waive.
MR. LA FOLETTE: Of course, the Tribunal has previously said that it wouldn't answer any more questions, and I don't wont to raise that issue; but it occurs to me that certainly if during the cross examination, without a 24 hour notice, if the cross examination exceeds the statement made in the affidavit, then we will have to make a legitime objection at that time, that we have had no 24 hours notice, that is, to any new matter that we go into, I want defense counsel to know what position we will have to take.
THE PRESIDENT: As I understand it, what you really desire, Mr. La Folette, is to have sufficient time to bring in the affidavit itself so that the cross examination may be conducted on the basis of the affidavit. Is there anything more than that in your mind?
MR. LAFOLETTE: There is just this other thing, but that can probably be worked out. There are certain of us who have to some extent specialized with the evidence relating to certain of these defendants, and insofar as it certainly is possible for the defense counsel to advi se us, that member of the prosecution staff would like to be able to get prepared. That is one of the very basic things that was in my mind when I asked for notice of some kind.
THE PRESIDENT: I may ask at this time if defense counsel as prepared to name the witnesses as a result of the recess?
DR, SCHUBERT: Dr. Schubert for the defendant Oeschey. May it please the Tribunal, I am not in a position to emotion the names of those witnesses whom major Schaeffer intends to bring on Thursday and Friday.
On Thursday, the witness Rauh, R-A-U-H, former Landsgerichtsrat at Nuernberg; the witness Recker, who has been a witness before this
MR. LAFOLLETTE: If Your Honor please the cross examination of Hecker has been completed and this Court so stated. He has been cross examined upon every affidavit that he made. Right now I object to the production of Hecker.
THE PRESIDENT: I think that objection is well taken, unless you have some better reason than yet appears.
DR, SCHUBERT: May it please the Tribunal, I personally am not informed about the witness Hecker. I have only seen that his name appeared on that list which was signed by Your Honor personally.
THE PRESIDENT: Maybe I should state the reason why that name appears on the list. That name was among the 38 names that were furnished to us on a separate sheet of paper, and I routed them all on. But that doesn't make him competent if he was otherwise incompetent.
DR. KUBOSCHOK: Originally, I asked for him before the witness Hecker came into the witness box again. Then I questioned him, and thereby of course it is clear that the cross examination is no more necessary. Therefore, I do not need the witness Hecker any more.
THE PRESIDENT: I want to say, Mr. Lafollette that I am not altogether to blame for this, because you gave me that list yourself.
MR. LAFOLLETTE: There is no question about that, Neither am I your Honor. I got the list sometime ago when the Court asked us to see who they wanted, and the name was still on there.
THE PRESIDENT:NO harm done, at nayrate.
DR, SCHUBERT: ANother witness for tomorrow is Grueb, G-R-U-E-B, for mer Oberlandsgerichtsrat at Nuernberg, the witness Brem, B-R-E-M, former Amtsgerichtsrat--local court counsillor at Nuernberg. For Friday I scheduled the witness Dr. Mayer, M-A-Y-E-R, a lawyer from Nuernberg; the witness Dr. Kunz, K-U-N-Z, court physician at Nuernberg; the witness Dr. Baur, B-A-U-R, at present a court physician at Nuernberg; the witness Dr Kroher, K-R-O-H-E-R, a lawyer from Nuernberg.
THE PRESIDENT: Of course, we recognize the force of what Mr. Lafol lette has suggested, and you have now given us names which seem to be sufficient to occupy these two days, and we hope that you will be equally cooperate and furnish names--other--names for other days well in advance.
Unless there is something further to suggest on the part of counsel on either side, we will now recess until tomorrow morning at ninethirty.
DR, SCUBERT: May it please the Tribunal, I do not know whether I have correctly understood the Tribunal in that I was told to present the names of the witnesses to the Tribunal and the prosecution. I, personally, would gladly do anything to see to it that these examinations take place, but it is quite impossible for me to assume any responsibility that the names of the witnesses are given to the Tribunal and the Prosecution in time. I will certainly pass on the appropriate request to Major Schaeffer in time, but I believe that technical preparations have to be made so that Major Schaeffer who deals with the bringing in of the witnesses should be in a position to submit in time a list of the witnesses to be called to the Tribunal, the Prosecution and the Defense. I do not believe that it is a matter for the defense to take care of the technical matters of these witness examinations, and I reemphasize that the defense, and I believe I am speaking also in the name of my collegues, that the defense will do anything possible in order to facilitate the technical procedure in question. I believe however, that the manner in which it is to be carried out and in which the parties are to be informed is a matter for Major Schaeffer, who also is in a position to do so.
THE PRESIDENT: DR. Schubert, you have given us three names for tomorrow, but do you nave any personal knowledge as to whether those witnesses will be available and will be in fact here tomorrow morning?
DR. SCHUPERT: I only know that Major Schaeffer has done everything possible or will do so within the next hours to bring these witnesses here and I do not think that there will be any difficulties to present these witnesses.
THE PRESIDENT: The Court will recess at this time until tomorrowmorning at nine-thirty.
(The Tribunal adjourned until 22 May, 1947, 09,30 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 22 May 1947, 0930-1630 hours, Justice Carrington T. Marshall, presiding.
THE MARSHAL: Persons in the court room will please find their seats.
The Honorable, the Judges of Military Tribunal III.
Military Tribunal 3 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, please ascertain if the defendants are all present.
THE MARSHAL: May it please Your Honor, all the defendants are present in the court room with the exception of the defendant Engert, who is absent due to illness.
THE PRESIDENT: The defendant Engert is temporarily absent at his own request. Let the proper notation be made.
May I inquire which witness is desired to be called first?
DR. SCHUBERT: May it please the Tribunal, there are quite a number of witnesses present this morning, as far as I know, and I ask to be permitted to start with the cross examination of the witness Eichinger. I would be grateful if I could begin this cross examination and then the cross examination of the witness Kroher as the first ones, since, as I explained to the Tribunal yesterday, there will be a witness here whom I have to interview in room 55, in the presence of a commissioner. I had great difficulty in obtaining this arrangement, and I do not want to lose that chance. Therefore, I ask to be permitted to begin with the cross examination of the witness Eichinger, and to examine the witness Kroher after him.
THE PRESIDENT: I am very much afraid that is not in line with that was discussed yesterday. Does the prosecution have any objection to that particular witness being called first?
MR. WOOLEYHAN: I have just sent a man to get the necessary affidavit. It is quite a surprise, but we have no objection.
THE PRESIDENT: That being true, the Tribunal has not brought to the Bench the particular document containing that exhibit, and if you will give us the number of the exhibit and the number of the document and where it is found, we will very quickly supply that omission.
DR. SCHUBERT: May it please the Tribunal, it is document book III-I, first, document NG-561, Exhibit No. 227. Document book III-C also pertains to it--III-C, NG-513, Exhibit NO. 150.
THE PRESIDENT: Let me inquire at this time, will that also be agreable to the prosecution?
DR. SCHUBERT: May it please the Tribunal, there is also tho affidavit of Kroher in document book III-I, NG-664, Exhibit No. 230.
THE PRESIDENT: Of course, we promised the prosecution that we would not bring any of these people in without some notice, so that we will first ascertain whether that is agreable to the prosecution.
MR. WOOLEYHAN: Your Honor, the defense counsel and I are discussing NG-513, which was the result of a German court investigation into the Montgelas case. Now it is true those are a series of affidavits, but they are not affidavits of any affiant that has been called here and therefore I object to cross examination on the basis of that.
DR. SCHUBERT: May it please the Tribunal, may I be permitted to state my position? At the time that document was submitted I objected to it because it was not an affidavit. It is an investigation, or a report of an investigation against the defendant Oeschey and the former Senior Prosecutor Schroeder, which was made after the war by German authorities. In that report of an investigation there are no sworn statements. Then, at the time, after discussion had taken place about the objection, I withdrew the objection because the prosecution promised that I would be permitted-- also as regards statements in that document--to conduct a cross-examination of the appropriate witnesses.
THE PRESIDENT: What is the name of that witness?
DR. SCHUBERT: There are quite a number of witnesses, but with the exception of the witness Eichinger, I do not intend to crossexamine any of them.
JUDGE BRAND: Eichinger made a statement in what Exhibit number? I didn't quite get that--the one you have just been discussing.
DR. SCHUBERT: Yes, that is Exhibit 150.
THE PRESIDENT: III-C, document NG-513.
MR. WOOLEYHAN: Your Honors, one moment, if I may. The document to which Dr. Schubert refers is not an affidavit. We had some discussion about that a month or so ago. It is true that in that document a certain witness makes statements that Dr. Schubert is going to call to cross-examine. But if we lay the way open to cross-examine any person mentioned in or making statements in a document which is not an affidavit, in our case in chief, that lays the way open to cross-examine on every document we have in evidence as to anybody therein implicated that the defense chooses to call. Now that is not anything but defensive matter.
JUDGE BRAND: My notes disclose, with reference to Exhibit 150, that Dr. Schubert reserved the right to cross-examine. I have it written in my notes to that effect.
THE PRESIDENT: I suggest, Dr. Schubert, that since there is a question about this being raised by the prosecution counsel, we should proceed with some other witness at this time and we can look into that during the recess with more deliberation than we can now.
MR. WOOLEYHAN: Your Honor, we have no objection to Dr. Schubert's proceeding with the examination of Eichinger on his affidavit; that is perfectly proper.
THE PRESIDENT: Let him be called for that purpose, and if anything further is needed or found to be proper, that can be ruled upon after the recess.
Let the witness be called.
JOSEF EICHINGER, a witness, took the stand and testified as follows:
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).
You may be seated.
EXAMINATION BY DR. SCHUBERT:
Q. Dr. Eichinger, would you please tell the Court your full name?
A. Joseph Eichinger.
Q. And your profession?
A. Attorney.
Q. Dr. Eichinger, in your affidavit which you gave to the prosecution you state that the defendant Oeschey in about 1943 took over the place of Rothaug as presiding judge of the Special Court at Nuernberg, and that then jurisdiction with increasing severity started, and there were more frequent death sentences rendered. May I ask whether you have made any definite statistical investigations about that matter or on what this impression is based?
A. Statistical investigations I have not made. My impression is based on personal observation, on what I have heard among attorneys and through the press.
Q. Did you yourself, in your work as defense counsel, incur any death sentences to your clients from Rothaug as presiding judge?
A. No.
Q. In the case of Rothaug not?
A. No, I don't remember that.
Q. The impression which you describe in the affidavit may therefore have come about because you had no death sentences as far as Rothaug was concerned, but did have them in the case of Oeschey?
A. It is possible that that was the reason.
Q. You complain, Dr. Eichinger, in the affidavit, if I may say so, about the manner in which proceedings took place. You were frequently defense counsel with Oeschey presiding.
A. Yes.
Q. Weren't there any proceedings that were all right?
A. Yes, there some of those.
Q. Were there any acquittals?
A. Yes, one acquittal. No, I remember two cases.
Q. Two cases?
A. Yes.
Q. Could you tell us anything about how these acquittals came about?
A. As far as I remember, the defendants were Germans and the statements made by the witness made the impression on the court that the witnesses did not speak the truth.
Q. And that court was under Oeschey as presiding judge?
A. Yes.
Q. Dr. Eichinger, on the second page in the German text of your affidavit you state, and I quote literally: "It was known that a sign from the Gau authorities, instigated by Oeschey, was sufficient to have a lawyer turned over to the Gestapo." From the way in which you say "it was know", I may take it that people talked about it, by way of rumor?
A. Yes, but it was also my personal conviction.
Q. Do you know of any case where Oeschey turned over a lawyer to the Gestapo?
A. A case by name is not known to me.
Q. Furthermore you state, witness, that you had the impression that Oeschey supported Hitler's policy to decimate the foreigners, particularly the Poles, consciously and intentionally. Then afterwards in your affidavit you mention two cases, one a Pole and another one a Frenchman. Are these the only cases of foreigners which in your recollection you defended before Oeschey - in your definite recollection?
A. No, I had more cases of foreigners before Oeschey.
Q. You had more cases of foreigners?
A. Yes.
Q. But these two cases, in your recollection, were the only cases of foreigners whom you defended where a death sentence was rendered?
A. No, I had more cases that I defended and that ended with death sentences.
Q. But you can't remember the case, can you?
A. In the meantime I have remembered, on the basis of information which I received from a friend of mine who attended a session by coincidence, where a young Frenchman, the son of a baker from Caen, was sentenced to death.
Q. Yes. Yes, you mentioned that case.
A. That young Frenchman, as my friend told me, was called Charles Blondell.
Q. I shall revert to that case. That is one of the cases which you mentioned. Then you mentioned that Oeschey always put to the defendants their previous convictions. As an experienced defense counsel before the Special Court you certainly know, and you will be able to confirm this, that the majority of cases that were brought to trial there were the cases of so-called habitual criminals, at any rate as far as general criminality was concerned? Is that correct?
A. Yes.
Q. In the case of these habitual criminals wasn't it mandatory that the list of previous convictions had to be stated?
A. Of course, but what I was going to say was more. As a rule all files of previous convictions were brought up. They were gone through and put to the defendant with all details.
Q. Yes. Then I want to speak about the case Strobel. You say here the Reich Minister of Justice had ruled that the prosecution should take place on the basis of paragraph 2 of the Law of December 20, 1934, and only on the basis of that paragraph. I want to emphasize that "only". The law mentioned is the so-called Heimtuecke Gesetz (law of malicious attacks). Is that correct?
A. Yes.
Q. Is it known to you, witness, that a prosecution on the basis of Paragraph 2 of the law on malicious attacks could only take place on the basis of a directive of the Reich Minister of Justice?
A. Yes.
Q. That directive was a requirement for the trial, in German opinion?
A. Yes.
Q. Dr. Eichinger, Strobel, as we know, subsequently was not only indicted on the basis of Paragraph 2 of the law of malicious attacks but also as an habitual criminal on the basis of other regulations. He was sentenced on the basis of all these regulations, is that correct?
A. Yes.
Q. Do you consider it in any way surprising that that directive of the Reich Minister of Justice does not mention the term "habitual criminal" or the appropriate regulations of penal law?
A. My recollection of these things today is not very good because my library was burned already in 1943 and I had to do with other books.
Q. At any rate, you frequently defended cases concerning malicious attacks?
A. Yes.
Q. Did you at any time find out from the files that the Reich Minister of Justice, when he gave the directives necessary for the prosecution, mentioned any legal provisions other than the law on malicious attacks?
A. I could not remember that.
Q. In this case two sessions took place, as you have stated. The first ended with a decision to interrupt proceedings in order to make investigations.
A. Yes.
Q. To find out whether the defendant was a dangerous habitual criminal.
A. Yes.
Q. Can you still remember that the defendant Strobel had no less than 48 previous convictions?
A. That may be.
Q. Witness, during your interrogation for this affidavit you apparently looked into the files?
A. Yes.
Q. Do you still remember the opinion by the court expert?
A. No, not at the moment.
Q. Not at the moment. During the second session which took place on the 19th of February 1944 you were the appointed defense counsel?
A. If I remember correctly, yes.
Q. In your affidavit you have stated that in that second session the prosecutor based his charges at first on the law of malicious intent, and you apparently mean to say that at the beginning of that session the prosecution had not yet termed the defendant as a dangerous habitual criminal.
A Yes, that is the way it looked to me from the record.
Q You cannot say that from your own recollection?
A No.
Q When you looked through the files, did you find out that a month before that session, the prosecutor reported to the general prosecutor that he intended to demand a death sentence?
A That I couldn't remember now.
Q May I ask you, Dr. Eichinger, when, approximately in your recollection, the case of the young Pole, which you described, took place?
A I no longer remember exactly. I believe it may have been in 1943.
Q You believe 1943?
A Yes.
Q Do you know or can you still remember what view was taken in the verdict or in the opinion about that crime? Was the decree on Poles applied or the decree on violent criminals? Do you remember anything.
A I could not remember that at the moment.
Q Furthermore, you mentioned a case of a young Frenchman, of whom you said before, in your opinion, his name was Charles Blondell?
A I believe so.
Q You state that that Frenchman together with other had committed burglaries.
A Yes.
Q Was it a case of a gang of burglars?
A That is what I assume.
Q Was Blondell the leader?
A I don't remember that any more.
Q Were the burglaries committed during the night?
A I believe so.
Q Was the sentence rendered in view of the crime committed during blackout?
A I believe so.
Q What were the sentences for the other participants?
A That I cannot remember very plainly any more.
Q I mean to say, prison terms or death sentences?
A Whether there were any other death sentences, I could not tell you. I only remember with certainty that there were also prison terms. I believe that they were the penitentiary terms.
Q Dr. Eichinger, you mentioned, as the last case, the case Zippelius which you defended before the Stangericht shortly before the end of the war.
A Yes.
Q Who was the prosecutor in that case?
A I believe prosecutor Dr. Schroeder.
Q What sentence did he demand?
A If I remember correctly, although a main witness for the prosecution in court had considerably modified her former statement, to my greatest surprise he still demanded the death sentence.
Q And what was the verdict?
A The decision was pronounced according to which the case was transferred to the regular courts.
DR. SCHUBERT: May it please the Tribunal, I have now finished the cross examination as far as it refers to the affidavit itself. Now I should like to deal with the Document, Exhibit No. 150, and I ask -- May it please the Tribunal, one of my colleggues was kind enough to bring the transcript of the day which shows when Exhibit 150 was submitted. I should like to quote two sentences briefly. It says here:
"Judge Brand (asked the prosecution): Quite independently of the manner in which this evidence has been submitted, do you agree that the defense may call and take any one of these individuals or all of these individuals into cross examination, who have made statements in this exhibit?
"(The answer by) Mr. Wooleyhan: Certainly, Your Honor."
MR. WOOLEYHAN: As long as you're referring to the record, I might also state that on numerous other occasions when the question of cross examining an affiant arose, we always understood from the Tribunal that that would occur concurrently with the defense case in chief.
THE PRESIDENT: Do we understand, Dr. Schubert, that if you can cross-examine this witness concerning that document, that will obviate the necessity of calling any other witnesses in relation to that affidavit?
DR. SCHUBERT: No, Your Honor; no other witnesses concerning that document. I do not intend, as far as Exhibit 150 is concerned, to crossexamine any other witness.
THE PRESIDENT: And you mean by that, not even when you come to your defense, will you call witnesses relating to that? Is that what we understand you to say.
DR. SCHUBERT: May it please the Tribunal, as far as that is concerned, I cannot make a statement with any amount of finality. I don't believe so. I do not have the intention so far to do so.
THE PRESIDENT: With the statement that you have just made to the Tribunal, you will be permitted to examine this witness on that document.
EXAMINATION BY DR. SCHUBERT:
Q Dr. Eichinger, I come now to the statement which you made on the 27 June 1946.
THE PRESIDENT: We will suspend just a moment until we can get that particular book from our rooms.
JUDGE BRAND: That is in Book 3-C, is it not?
DR. SCHUBERT: Yes, 30.
May it please the Tribunal, it's NG-513, Exhibit 150.
THE PRESIDENT: You may proceed.
EXAMINATION BY DR. SCHUBERT:
Q In this exhibit, there is at first an interrogation of local court councillor Dr. Eser. Then there is another transcript, the witness Mueller; and the third one is the interrogation of the witness Dr. Eichinger. May I proceed?
Dr. Eichinger, we have here your interrogation before the local court of Ebermannstadt on the 27 of June 1946. There you state in the beginning, I quote: "Therefore, I can only speak reservation that I can only say what I can remember without having any documents before me." Does that mean that what you stated thereafter may perhaps be subject to mistakes in recollection, or do you want it to mean that you only state that which you can remember well?
A. That was to mean that I had to make a certain reservation as far as general circumstances were concerned, and that because all records and files that I had were burned.
Q. Yes, I understand that, Dr. Eichinger, one of your clients was Count Montgelas.
A. Yes.
Q. Your client had made certain statements which at the time were considered objectional and even a serious crime. Can you still remember what kind of statements they were?
A. Rather severe and insulting statements against Hitler, and, if I remember correctly, against other leaders of the NSDAP.
Q. Dr. Eichinger, before the civilian court martial in the Standgericht, as we have seen, you defended a similar case of Zippelius. What statements were more severe -- those of Montgelas or Zippelius?
A. If I remember correctly, statements on account of which Montgelas was indicted were far more serious than those in the case of Zippelius.
Q. Dr. Eichinger, you were not called to the session during which your client Montgelas was sentenced; at any rate, you did not receive any summons.
A. No.
Q. It can be seen from your affidavit that at that time you had bomb damage at your office. Do you still remember when your office was destroyed?
A. I could not remember the date with absolute certainty; I believe, however, that my emergency office, at that time at Fuerther Strasse 36, was hit on the 16th or 17th of March, 1945, on the occasion of an air attack and was destroyed by pressure; from that time on it could not be used any more.
Q. And then you moved?
A. Then, as far as I remember, several days later, it may have been around the 20th of March, I moved to my last emergency office, and that was the Defense Counsel Room, in the courthouse.
Q Dr. Eichinger, what did you do in order to announce the fact that you had moved your office?
AAs far as I recall, I sent to all justice authorities in the courthouse building, an announcement to the effect that my emergency office was now in the Defense Counsel Room of the Palace of Justice.
Q Do you remember quite accurately that that announcement was really distributed?
A I believe so.
Q You had that done through your office?
A Yes. May be since I was in the building myself I even distributed the announcement personally in the various rooms where these announcements were to go, to be mailed, and so on was to be accepted.
Q But quite precisely you can't remember that?
A I believe so.
Q Dr. Eichinger, what do you mean by having distributed to all justice authorities?
A I believe that I sent that announcement to the local Court, the District Court, the District Court of Appeals, and most probably also to the prosecution
Q In every case in one copy?
A Probably so.
Q Dr. Eichinger, then you mentioned the fact that the deputy Gauleiter Holz at the last moment ordered the establishment of the civilian courts martial (Standgericht), and you continued -- I quote: "Advisor in these matters was Landgerichtsdirector Dr. Oeschey, District Court, who at the same time was a member of the Gau Staff." Is it known to you, Dr. Eichinger, that the defendant Oeschey, until the 3rd April, 1945, was a soldier and was serving in the forces, and that he was transferred from the armed forces directly to Nurnberg to take over the job of Presiding Judge of the Standgericht?
A I remember having heard that the Landgerichtsdirector Oeschey a few months before the end of the war had been drafted, and I was somewhat surprised when I saw him back in office again. The details, whether he was ordered to that job or not, are not known to me.
Q Dr. Eichinger, what makes you think that the defendant Oeschey was the adviser of the Gauleiter in these Standgericht matters -- civilian courts martials matters.
A I based that on the fact that Oeschey was that for many years until he was drafted, and further more, on the fact that he certainly was the confidential adviser of the Gauleitung in legal matters, and that he was the man who had been given the job of Presiding Judge of the Standgericht.
Q You don't know any facts about that alleged activity of advisor, of Oeschey about these Standgericht matters?
A Facts, no.
Q Then, you said that the Standgericht, in your opinion, had net all been competent to deal with the case Montgelas, because the files, as the prosecutor had stated, were sent to the Chief Prosecutor of the People's Court -- Chief Reich Prosecutor of the People's Court. Isn't it known to you, Dr. Eichinger, and didn't anybody tell you at the time, that the files had been lost?
A I never heard about that.
Q You didn't?
A Prosecutor Mueller who dealt with the case Montgelas neither told me anything about that.
Q He didn't. Then you state that no witnesses were called to the main trial against Montgelas.
AAbout that I do not know anything for sure, but I believe to remember that in my subsequent discussion with the senior prosecutor Schroeder, the latter told me that no witnesses were needed because the essential facts against the defendant had been admitted by Count Montgelas.