Court No. III, Case No. 3.
Well, I mean, after all the position is not that what the buergermeister says in his letter here, should be a hundred per-cent correct.
Q Well, tell me this, Mr, Oeschey, if you so capably explain to your own satisfaction what the sound sentiment of the people requires. Why did you say as you did that it was a completely elastic and rubbery like concept, of not much account to the law, they are naturally exclusive, are they not?
A Well, not entirely, you must take into consideration in what connection I said that at the time to the interrogating official. We were discussing at that time the various jurisdictions under that term and I expressed myself to the effect that all of these definitions of the sound feeling of the people which were attempted to be used at the time seemed to me a highly rubbery affair.
Q Tell me, Mr. Oeschey, with regard to the sound sentiment of the people, did you see any connection between you as a judge, making up your mind as to what the sound sentiment of the people requires and the making up of your mind as to who constitutes a habitual criminal, do you see any similarity in your thought processes there?
A Well, I am inclined to say that with all of the decisions arrived at by one of our judges, I always was guided by the views of a reasonable and legal minded man, even when considering the question of whether or not the defendant was a dangerous habitual criminal.
Q Tell me, would you say it was the prevailing German legal theory after the beginning of the war that a man whom you had made up your mind was a habitual criminal, that you should demand that he should be eliminated rather than rehabilitated? would you say that is a fair example then of the prevailing rule?
A I am afraid I did not quite follow your question. Do you mean whether the prevailing opinion was Interpreter - Would you repeat it - please?
Q I was merely asking whether or not it was the prevailing Court No. III, Case No. 3.attitude, that a man whom you had made up your mind was a habitual criminal should be eliminated rather than rehabilitated, is that your idea?
A That depended, and since the 4th of September 1941, the law existed whereby if the protection of the nation made it imperative that a dangerous habitual criminal was to be sentenced to death.
Q What I am getting at, is quite apart from the legal profession we have discussed in this court room. In many cases men whom you had decided were habitual criminals should be sentenced to death and executed rather than being given another sentence and I am merely asking you if you feel that preferable to rehabilitation, and if so, why?
A If there was the slightest hope in any of these cases that any of these people could be returned to normal social life I would have been the last to advocate the death sentence.
Court No. III, Case No. 3.
Q But you as judge in the last essence were the one that decided whether or not the man could return to society or would be executed as a habitual criminal in your opinion? It was you who decided in the last essence, wasn't it?
A The court of which I was a member.
Q What I am really getting at is, even assuming that a man is a habitual criminal, assuming that he is by anybody's standard anywhere, why is it necessary to kill him -- whether his crimes constitute a string of petit larceny, or embezzlement, or murder -- in order to make society better? You realize, of course, that other systems of law don't agree; and I'm wondering what your explanation is.
DR. SCHUBERT: Your Honors, I object. He is arguing with the witness. He's asking him for his opinion, which is irrelevant.
MR. WOOLEYHAN: Of course I'm asking him for his opinion.
THE PRESIDENT: The objection is sustained.
MR. WOOLEYHAN: May it please the Court, the prosecution offers in evidence another document. Mr. Willsie, do you have the next exhibit number of the prosecution there?
THE PRESIDENT: I think I have it here. Number 579 was offered and rejected, was it not?
THE SECRETARY GENERAL: Reserved, sir. I have it.
THE PRESIDENT: Then this next exhibit will be 580.
MR. WOOLEYHAN: The prosecution offers as Prosecution Exhibit 580 a sworn affidavit of the defendant Oeschey from which I derived these remarks concerning the sound sentiment of the people and habitual criminality which we have been discussing. Now, as Prosecution Exhibit 581 we offer in evidence the Zollner case, which is NG1126.
DR. SCHUBERT: May it please the Tribunal, as far as the affidavit of this defendant is concerned, I wish to make an objection. He gave this affidavit on 27 December 1946; that is to say, at a period of time Court No, III, Case No. 3.before the indictment had been served, and he did not even know whether he was going to be indicted or not.
He, therefore, could not know whether this statement was expected from him as a defendant or as a witness. I therefore move that this document is not admissible.
THE PRESIDENT: That objection is not well taken. The exhibit is offered as a part of the cross-examination of the witness who is on the stand. The exhibit is received. Number 581 is also received.
BY MR. WOOLEYHAN:
Q Your counsel, Mr, Oeschey, has offered in evidence here a letter, apparently written by you to your brother on the 29th of August 1942. That has been accepted as Oeschey Exhibit Number 9. Now, in the middle of 1942 in this letter to your brother you start discussing the justice administration in general; and I am quoting briefly from the middle of that letter when you say the following:
"Now, it is an absurdity to tell the judge in an individual case which is subject to his decision how he has to decide. Such a system would make the judge superfluous. Such things have now come to pass. Naturally, it was not done in an open manner; but even the most camouflaged form could not hide the fact that a directive was to be given. Thereby the office of judge is naturally abolished, and the proceedings in a trial become a farce. I will not discuss who bears the guilt of such a development."
Now, Mr. Oeschey, at the time you wrote that to your brother, did you think that that constituted a crime under the severe war-time laws? For instance, did you think that was a malicious utterance, or did you think that undermined your brother's morale or will to resist?
A Whether my utterances undermined the fighting morale--I certainly did not think so at all. They were not any such thing.
Q Did you think they constituted the lesser offense of malicious Court No. III, Case No. 3.utterances, for instance?
A No, for the reason that I said this to my brother by whom I am understood and who is understood by me very well.
Q You mean there was something in this language that doesn't meet the eye that would be understood by your brother but not by the casual reader? Is that what you mean?
A No, I don't wish to say that at all. The sentences are quite clear and are understandable by anybody. I did not wish to have anything read between the lines, as it were.
Q Now, what do you think that Minister of Justice Thierack would have done to you if he had found out that you had arrived at the solemn conclusion that the trial of a case in Germany from that time on was a farce, as you so clearly state here? Was it a farce?
A I was told the interrogation was a farce. I don't think I said that.
Q You said farce. Now, if we don't object to the defense's translations, I don't see why you should. In any event, it says farce here.
THE PRESIDENT: May I ask what exhibit that was?
MR. WOOLEYHAN: Exhibit Number 9, your Honor.
A That trial was a farce if the judge was given a directive on which he acted. That, of course, in a case of a trial is a farce, certainly, and not a proper trial.
Q Right you are; and in that circumstance you say it would be a farce; and in your letter you say that that circumstance has come to pass. Now, the letter says that, Mr. Oeschey. What do you think Minister Thierack or Hitler himself would have done to you if they found out that you said that?
A I would have advocated the same point of view towards those. They could have done what they liked. I don't know what they would have done.
Court No. III, Case No. 3.
THE PRESIDENT: I think, Counsel, that that is what might be called a rhetorical question directed to the bench, and you needn't insist on it.
MR, WOOLEYHAN: All right, your Honor, I'm sorry.
Q How did you sent this letter to your brother? Through the mail?
A Yes, by the mail.
Q Did you type it yourself or did you dictate it to somebody?
A I wrote that letter with my own hand.
Q With your own hand? Well, the original is typewritten. How do you account for that?
A I had a typewriter.
Q You wrote it in your own hand on the typewriter?
A Quite.
Q You type, Mr. Oeschey.
A Yes.
Q You type frequently?
A I wrote many things on my typewriter but only with two fingers.
Q You did that in the office, did you?
AAt home.
Q Oh, at home?
A I did not write in the office.
Q In any event, there's no doubt at all that you wrote this letter to your brother in August of 1942, and it says substantially what we say here? There's no doubt about that, is there?
A Yes, quite.
Q Now, tell me this. I'm taking this merely as an example. I could choose many, but I'm taking one. In the case of Strobel we have heard at great length what the defendant Strobel said about Hitler, Goering, and other people. He had the misfortune to say that aloud; he didn't write it to his brother. He was tried, and after several Court No. III, Case No. 3.exposures to the same offense, he was finally convicted and sentenced to death.
I'm asking you, in your own mind, if you can justify your decision in the Strobel case with what you wrote to your brother in August of 1942?
A I deny most energetically that what I wrote to my brother was an offense under the malicious acts law.
Q Now, in 1944, Mr. Oeschey, as will appear, I'm sure you will confirm, from a document about to be shown you, you were the presiding judge in a case wherein a Frenchman named Etcheverria was sentenced to death as a public enemy. It appears on the second page of your judgment, not the indictment, but the judgment, that the accused was a French citizen and fought as a French soldier during the late French campaign but was captured by the German army in 1940 and was made a prisoner of war. He escaped and was recaptured. In any event, he was kept in a German prisoner-of-war camp until the 1st of July 1943. In other words, he was kept in a PW came for almost three years as a French prisoner of war. At that time he was released from captivity and was allocated to the German firm Leube for employment. Ho was allocated to that firm while still a prisoner of war; and then later on that same year he was, as it says here, released from captivity but continued to work at that same factory. New, quite apart from the details of his crime, which are all spelled out in the indictment and in your opinion-they involve thefts of soap and clothing and what have you during blackouts--I'm asking you whether or not this French defendant was a prisoner of war at the time you tried him?
A No.
Q: Well, would you please explain when he ceased to become a French prisoner of war?
A: On 1 July 1943.
Q: He ceased to become a prisoner of war on 1 July. Alright. If that is the case, what was his status in the Reich after that time?
A: After 1 July 1943 it says in the opinion he ceased to be a prisoner of war, and from then onwards was a French civilian worker with the Leubs plant until 17 December 1943.
Q: Tell me this, Mr. Oeschey, do you remember when it was that the French campaign of hostilities ended and Hitler went to Paris and had his picture taken in the Versailles forest, or wherever it was? Do you remember that? What year was that?
A: June, 1940.
Q: June 1940, and then so far as the German Reich was concerned you were not at war with France any longer, were you?
A: There was an armistice.
Q: Now tell me at the time of an armistice, prisoners of war are held how long thereafter under the rules of ground warfare?
A: I can't tell you that offhand. I am afraid I don't know these regulations.
Q: Well, I am asking you why it was that the defendant in this case was imprisoned in Germany for over three years after the end of the war with France, of which he was a citizen?
A: He was a prisoner of war.
Q: Yes. I say, and how could he be a prisoner of war over three years after the war was over?
A: Well, I don't think that the state of war with France was ever suspended. As far as I know, a prisoner of war -- French prisoners of war -- were released only in certain batches, not all of them.
Q: Well, taking your own statement that the state of war between Germany and France was never actually suspended, was it suspended on 1 July 1943, the date that this Frenchman was released from the PW prison?
A: I don't think so.
Q: Then if that is the case, then he was a prisoner of war just, the same after he was released as he was while he was there, wasn't he?
A: No. Any belligerant power can release a prisoner of war or keep him.
Q: And it was perfectly clear to you that you had jurisdiction over this man as a civilian; is that your position?
A: Yes, I did not regard Etcheverria as anything else than a civilian, because otherwise I would not have been competent.
Q: Well, Etcheverria had been a prisoner of war in the Reich for over three years after he was released. As appears from your opinion, he committed a number of thefts involving clothing and soap and other things. For that offense, which had the misfortune to be committed during the blackout, you sentenced him to death. I am asking you how long you think that Frenchman had gone without any soap or clothing?
THE PRESIDENT: You needn't answer that.
MR. WOOLEYHAN: The Prosecution offers as Exh. 582 Document NG 990, which is the Etcheverria indictment and decision.
THE PRESIDENT: The exhibit is received.
Q: How were your relations with your Gauleiter, Mr. Oeschey, in a word? Were they intimate or were they remote?
A: My relations with Holtz were not intimate. They were essentially official relations.
Q: He was the supreme Nazi Party authority in the entire Gau Franconia, was he not?
A: Yes.
Q: I show you a letter. Would you please describe that paper you hold in your hand and read it, please?
A: It is probably a teletype letter by the Gauleitung Franconia in Nurnberg, of 21 April 1943. It is addressed to the Minister of Justice, Party Member Dr. Thierack at Berlin. It is signed by Karl Holz, Deputy Gauleiter.
Q: It is not very long, Mr. Oeschey, and it is very interesting, I think. Would you please read it?
A: Filling of the position of the Senate President at the Court of Appeal, Nurnberg. With the now imminent appointment of the Senate President Party Member Dr. Emmert to the position of President of the Court of Appeal in Nurnberg, the position of a Senate President becomes vacant at this court. I place greatest value that this position be filled with a reliable National Socialist who has my complete confidence. In addition to that, my special wish is that this newly appointed Senate President be appointed as Chief of Personnel Matters to the President of the Court of Appeal, Nurnberg, inasmuch as I am interested in obtaining finally an unharmed and upright cooperation with the Party in that sphere which so far has been lacking. Especially the personnel Referent is the most responsible field in the Justice Administration and therefore should be entrusted in the hands of a justice official of a corresponding higher rank who supports the Party without reservation.
To fill this position I recommend, therefore, my Gau Legal Advisor District Court Justice Party Member Oeschey. Party Member Oeschey is a member of the NSDAP since 1 December 1931, his membership number being 850246. He is unconditionally loyal to the Party in every way and is first of all free of any speculative intention. I can say about him unreservedly that he upholds the Party for the sake of its ideals. This corresponds to his ever-ready and modest outward bearing which entails that he stands in the background, compared to people who like to show off. So far as his professional qualifications are concerned, it is reported to me that already on the basis of the good outcome of the state examination he is far above the average and that he is as an associate judge as well as deputy presiding judge of the Special Court Nurnberg has accomplished excellent feats qualitatively and qualitively. Besides his unselfish positive view point toward the National Socialist idea and his outstanding efficiency which is part of his character, he is a nan above reproach. I beg you, therefore, dear Dr. Thierack, to fulfill my wish and with the appointment of Dr. Emmert as President of the Court of Appeal in Nurnberg to appoint Party Member Oeschey to the position of Senate President and with the immediate transfer of personnel matters.
MR. WOOLEYHAN: May we adjourn, Your Honor, at this point?
THE PRESIDENT: The Tribunal will adjourn until Monday morning at the usual hour, 9:30.
(The Tribunal adjourned until 15 September 1947 at 0930 hours).
Court No. III, Case No. 3.
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 15 September 1947 - 0930-1630, the Honorable James T. Brand presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please your Honors, all of the defendants are present in the courtroom.
THE PRESIDENT: Mr. Wooleyhan, before you proceed with the crossexamination, counsel will recall that a few days ago, in behalf of the Defendant Cuhorst, two affidavits, one by Kleinknecht and one by Frey, were offered in evidence, and in each instance the prosecution objected, the grounds of the objection being that earlier affidavits by Kleinknecht and Frey had been offered in evidence, and had been received without objection, and the facts are as stated by the prosecution.
At the time the Tribunal ruled upon the objections, it had not had an opportunity to examine the test of the two affidavits, Cuhorst Exhibit 55 and Cuhorst Exhibit 69 and we were under the impression that these affidavits went to the extent of challenging the admissibility of the previous affidavits which had been received when offered by the prosecution.
We have since made a careful examination of the two affidavits offered by the prosecution, and of exhibits 55 and 69 which were offered by the defendant, Cuhorst, and which the Tribunal rejected in evidence, the objection of the prosecution having been sustained.
Upon such careful investigation and examination of these documents, although the defense has made no request that we should make such a subsequent examination, the examination having been upon our own Court No. III, Case No. 3.initiative, we have concluded unanimously that the Exhibits 55 and 69 do not go to the extent of challenging the admissibility of the earlier Prosecution's Exhibits, and do not amount to any contention on the part of the defense that the earlier exhibits were obtained by duress.
On the other hand these subsequent exhibits offered by the defense tend to construe and explain, in a manner more favorable to the defendants, what the original affidavits meant, and were intended to mean.
It is true there is some, at least implied complaint, as to the specific language which appears in the English translation, but we construe these affidavits 55 and 69 as being explanatory of, and in some modification of the previous exhibits which were properly received.
We feel that in fairness to the defendants, to the defendant who offered them, the Tribunal should reverse its earlier ruling, and Exhibits 55 and 69 are now received in evidence, -- Cuhorst Exhibits 55 and 69.
I may say that this has no effect upon the objection which was made and sustained to Cuhorst Exhibit 45.
You may proceed.
RUDOLF OESCHEY (Continued) CROSS-EXAMINATION (Continued) BY MR. WOOLEYHAN:
Q In reading over the transcript of Friday afternoon's proceedings, Mr. Oeschey, I discovered that the person who wrote that letter, which you were reading, did not quite come through the transcript. I am sure you remember that letter, and in case you do not, I will again show it to you. I am merely asking you who it was that wrote and signed that letter.
A This letter, in type, bears the typewritten name of Karl Holz, Deputy Gauleiter, as signature.
THE PRESIDENT: Can you identify the instrument for the record a little more in detail?
Court No. III, Case No. 3.
BY MR. WOOLEYHAN:
Q Mr. Oeschey, that letter which you have just described as having been signed by Deputy Gauleiter Holz, is that the same letter from which you were reading at the close of the session Friday?
A It is the same letter which I read out on Friday afternoon.
Q Now in 1945, Oeschey, when you were called back from the Army and were appointed the Presiding Judge of the Civilian Court Martial here in Nurnberg, I believe you said that the party official, - or not the party official necessarily, but the official who so appointed you was the Reich Defense Commissar. I ask you, at that time, was the Reich Commissar of Franconia, the same man as the Gauleiter, namely, Karl Holz?
A The Reich Defense Commissar was identical with the Gauleiter Karl Holz.
Q Now also at that time when the Reich was becoming a battleground, and the Reich Defense Commissars were appointed, in this case the Gauleiter of Franconia, - could you affirm that the Supreme Commander of each of the Gauleiters and Reich Defense Commissars throughout the Reich, was Heinrich Himmler at that time?
A So far as I know, the Reich Defense Commissars were subordinate to the Reich Ministry of the Interior but I am not absolutely certain, but if that is how it was, then I think from 1943 onwards, -- but even that I cannot tell you for certain, -- however, if it was so, then I can say that Heinrich Himmler, from 1943 onward was Reich Minister of the Interior, and in that case the Reich Defense Commissar would have been his subordinate.
Q And if you further said on Friday, I believe, that the power to suspend sentences of the court martials in the courts of clemency, the official responsible entirely for the conducting of Court Martials, was in the hands, primarily, of the Gauleiter, or the Reich Defense Commissar, in this case?
Court No. III, Case No. 3.
AAccording to the decree on Civilian Court Martial, the Reich Defense Commissar had to confirm the verdicts passed by the Civilian Court Martial. The decision as to whether he wanted to affirm that verdict or whether he wanted to give instructions for clemency pleas to be made, that lay exclusively in the hands of the Reich Defense Commissar.
Q Now, Mr. Oeschey, in discussing the Gottfried case, being the one wherein this man in Oppenheim was captured by the U.S. Armed Forces and later returned, - I believe you said that in addition to Gottfried, there were two other co-defendants in that case?
A Yes.
Q Now can you affirm from your memory of trying that case, that the second defendant was the local Ortsgruppenleiter, and that the first defendant was the head of the local party Farmers' Association?
A I cannot tell you that from memory. I have to concede that it is possible, but if it was so, I did not play any part in making the decision.
Q And I believe you said that those two men I have just mentioned were acquitted, were they not?
A Yes, for subjective reasons.
Q May it please the Court, the prosecution offers as Exhibit 583 a press account of the activities of the Nurnberg Civilain Court Martial in the last days, discussing three of the cases discussed by the defendant during his direct examination.
I now distribute German and English copies.
THE PRESIDENT: What NG is it?
MR. WOOLEYHAN: Your Honor, it is NG 856.
THE PRESIDENT: The exhibit is received in evidence, as Exhibit 583.
BY MR. WOOLEYHAN:
Q Mr. Oeschey, you remember, I assume, that famous letter we discussed several weeks ago, which is Prosecution's Exhibit 561? It was that letter you wrote to Gauleiter Helz concerning the activities and shortcomings of Mr. Doebig. I do not wish to discuss that letter any further. We have talked about it at great length. I merely ask you if in your capacity as Gauleiter adviser, you ever took any other active part in advising Judges in the Gau, how they should adjudicate their cases?
A Whether I advised Judges as to how they were to adjudicate their cases?
Q Yes, Mr. Oeschey, in your capacity as Gauleiter adviser; did you over make any other attempts to criticize or regulate the way cases were to be tried on their merits in the Gau?
A I never exerted any influence on a judge or to try to make him decide any case in a certain way. As to whether I, apart from the cases mentioned in these letters, criticized any sentences, -- well that is possible, but at the moment, I cannot remember any individual case.
Q At the time you held that job, Mr. Oeschey, did you conceive it to be your official duty, as legal adviser to the Gauleiter, to try to rerulate the matter of deciding cases in the Gau in a general way?
A I do not quite know how I am to understand you. What do you mean, "influence in a general way"? That does not mean anything to me. I do not know what you mean by that. If any verdicts were criticized, and usually the people concerned offered such criticism, in such cases I examined the verdict, and I also examined the court files, but I cannot remember that I ever laid down any general directive.
MR. WOOLEYHAN: May it please the Court, the prosecution offers as Exhibit 584, Document NG 1693, which is a letter by the defendant, Oeschey, to the President of the Court of Appeals in Nurnberg, who at that time was Doebig, in which I think it is apparent that the defendant, Oeschey, examined a series of cases involving juveniles, and criticized the decision in each case as being entirely too lenient.
The letter was written under the head of the Nazi Party, with the defendant, Oeschey, signing as Gauhauptstellenleiter, which is the legal adviser.
THE PRESIDENT: You say Doebig was the addressee?
MR. WOOLEYHAN: At that time he was, your Honor.
THE WITNESS: May I say something about that?
MR. WOOLEYHAN: Certainly.
THE WITNESS: I do remember that letter. That is the complaint which was mentioned in the direct examination. It was a complaint against the presiding judge of the Nurnberg Juvenile Chamber. Under direct examination I pointed out that complaint, and above all the enumeration of those individual cases, originated with the district leadership of the Hitler Youth. It was addressed to the Gaaleitnug and it was passed on to me to deal with.
The account given in that letter is essentially the same as the account given by the district leadership of the Hitler youth. As I told you on the direct examination, I had already arranged with Doebig that I would discuss such complaints together with him and settle them. I told him about that complaint, and I think I informed him of all particulars, so far as I remember what happened then was that Doebig examined all of those individual cases, and in the course of a conversation told me that in his view, the criticism was unfounded, and that he could see no reason to proceed against the presiding Judge of the Juvenile Chamber, and I left it at that.
BY MR. WOOLEYHAN:
Q Mr. Oeschey, I have just handed you a paper. Would you please describe the letter head and the date, please?
A Yes.
Q What is it?
A I have before me a letter by the President of the District Court of Appeal in Nurnberg, dated the 2nd of December, 1943.
Q And to whom is it addressed?
A It is addressed to the Reich Minister of Justice, and it is signed by Dr. Emmert.
Q Mr. Oeschey, would you please turn to page 6 of that letter you have described?
A Yes.
Q On page 6, do you see a paragraph No. 2, entitled, "Criminal Jurisdiction"?
A Yes, yes I do. Strafgerichsbarkeit, criminal jurisdiction.
Q Mr. Oeschey, does that paragraph which you have just identified there read as follows, and I quote:
"I have transferred the presidency of the Special Court to District Court Justice Oeschey, because he is the stronger personality than District Court Justice Ferber, and also because he was superfluous in the personnel department. The severe line which Rothaug had given to the Special Court was retained, the quality of the verdict naturally sank with his departure, but Oeschey endeavors to reach it again."
Do you find that there, Mr. Oeschey?
A I have seen it, but it is a little different. What I see varies a little from the translation that has been given just now. Mr. Emmert, would you like me to read it out?
Q No, just answer the rest of my question.
A I merely wanted to say that he did not say because I was the "more severe" person, but what he said is that he appointed me to the presiding justice of the special court because I was a "stronger character", than Dr. Ferber.
Q Substantially, does the paragraph road the way I read it, in its entirety.
A Well, it does not say either the "severe policy" which Rothaug gave to the Special Court but the "strict policy" was retained. The last sentence is, "Oeschey is trying to reestablish that strict policy.
MR. WOOLEYHAN: No further questions, your Honor.
THE PRESIDENT: Exhibit 584 is received.
MR. WOOLEYHAN: No further questions, your Honors.
THE PRESIDENT: Is there any redirect examination?
RE DIRECT EXAMINATION BY DR. WERNER SCHUBERT:
Q The prosecution put the Guenther case to you, that is the case of the wool-collection which case has been discussed here. You read out a few passages from the verdict and evidently the conclusion has been drawn that you convicted, - that you accorded preferential treatment to the defendant, on account of the fact that she had done work for the party. Please give us your view about that.
A That is by no means correct. The verdict in the Guenther case itself stated that the defendant belonged to a number of organizations, some of which had been established by the party, and some by the state. In these organizations the defendant had been very active. That unselfish attitude on the part of Frau Guenther was naturally taken into account for the evaluation of here character, because for further decision in this case, it mattered a great deal whether the Guenther woman was a reliable person or not.
Q I have just handed you the files of the Guentner case. Please have a look at the clemency plea. Will you look at page 1, please. Can you see there whether you expressed an opinion that you did not agree with the clemency plea, and can you also see when you expressed that opinion. I am sorry, it is on page 3 -- on the back of page 3.
A I have before me the clemency files of the Nuernberg prosecution in the Guentner case. On the 26th of February, 1942, I stated my view when the defendant's counsel had made a clemency appeal. The defense counsel asked -
Q I beg your pardon, but I have to interrupt you. Just tell us quite briefly what you had to say about that. Were you in favor or were you against it?
A No, I was against it.
Q Will you now turn to page 7; it is the back of page 7. Do you see there that you also gave an opinion when a second clemency appeal was made?
A Yes.
Q What did you say that time?
A I said the same. Again I stated that I was against the clemency plea.
Q Will you now turn to page 20 of the clemency file.
THE PRESIDENT: May I interrupt a moment, Doctor. We do not see in the courtroom any of counsel for the defendant Altstoetter, and we apprehend that the time is rapidly approaching when he will be needed Will the marshal cause some one to notify counsel to be ready to proceed?
DR. SCHUBERT: May it please the Court, may I just point out that I have another two witnesses to call, and, therefore, it will take some little time -- it won't take much time, but it will take a little while.
THE PRESIDENT: Thank you for telling me; we didn't know that.
BY DR. SCHUBERT:
Q Will you turn to page 20. What decision did you make then?
AAgain I stated that I was against granting clemency to this defendant because it would be premature.