Q But you didn't try any in connection with the Penal Chamber of the District Court of Appeals? I said, in either court over which you presided, did you try any such cases?
A Neither the District Court of Appeal nor at the Special Court did I try such cases.
THE PRESIDENT: That is all. Redirect examination.
REDIRECT EXAMINATION BY DR. BRIEGER:
Q Witness, to start with, I want to ask you a few questions in connection with what Mr. Lafollette said about your work as a Gauspeaker. The first thing I would like to know is wether you have the copy of your instructions for Gauspeaker? I haven't got a copy and I need one.
Q Mr. Lafollette handed you one this morning. Witness, please take a good look at it and then tell the Tribunal whether all these provisions were ever put into that effect. I can well imagine that some of them only existed on paper and were never put into effect.
A From this document I gather that this was a brief statement in the organizational instructions of the NSDAP concerning Party Speakers. This statement, as I have said before, only mentions the Reich speakers, the so-called Reichseinsatzredner, the speakers employed in the Riech and the Gauspeakers who were at the disposal of the Gau Propaganda Leadership but the ordinary Gauspeakers are not listed.
Then there are a few statements of a general nature concerning the duties of these speakers and then it is stated quite clearly that as speakers for the Nazi Party only such persons will be appointed who are old Party members and who, at an earlier period, either as speakers or as political leaders, had been active.
I, myself, belonged to the first group for before the so-called seizure of power I did not work as a political leader. It seems to me that these extracts are not quite complete.
At the bottom there is a remark saying that the so-called Gau Expert Speakers do not have a rank as political leaders. As to how that affected the Gauspeakers, one would have to look at the organizational instructions to find that out. I, therefore, also did not hold an official rank, but I had be given an honorary rank so as to make it possible for me to wear a uniform.
That view of mine is corroborated by the extracts which have been presented by the prosecution.
Q.- Witness, I have in front of me your speech of the 3rd of November, 1943, which the prosecution put to you today. I am disappointed with that speech because it says exactly the same thing which has been said a hundred thousand times all over Germany, and therefore I ask you this. Am I correctly informed if I ask you now whether those speeches largely were based on instructions which you received from the higher authorities, and did you only have any liberty as to the embrodery?
A.- I made that speech on the 26th of November 1943. Generally speaking, the speakers were bound by the general instructions, which were also publicized in the press. As this news paper cutting shows, due to my professional experience I also discussed a few matters which depressed the population at that time; in particular I mentioned the importance of the supply control regulations. I told my audience that they should remain moderate in their grousing; they could grouse as much as they liked at the public, but there was a certain limit, and I asked them not to exceed that limit, otherwise they would render themselves liable to punishment. Further, I told my audience that there were certain secrets which should not be given away; that was the same in every war. All that is indicated by that newspaper report.
For the rest, I did have to adhere strictly to the directives issued to me.
Q.- Witness, if I may revert once again to this matter, according to the prosecution you are to be convicted of having been a confirmed National Socialist because you believed in a German victory. Would you like to say that you believed in a German victory mainly as a National Socialist, or as a German?
A.- Counsel, in war, politics are submerged completely in comparison with the exigencies of war. That I believed, above all, in the existence of my own people, as a German, was not conditioned by any party politics.
Q.- Witness, evidently the prosecution wants to say that Germany wanted to get some freedom of movement in the East, and I ask you whether Germans, for the first time under Adolf Hitler, or at a former time, had colonized in Russia?
MR. LA FOLLETTE: Just a minute. I object, Your Honor, for the reason that it intends to include a motive and purpose of the prosecution in this case which is clearly outside of proper redirect examination.
THE PRESIDENT: The objection is sustained.
BY DR. BRIEGER:
Q.- The Prosecution has referred to the Party program, evidently from the point of view--although that may have been a different point of view, don't hold me responsible for it--from the point of view of ascribing to you a particularly good knowledge of matters such as they developed afterwards under the National Socialist regime. Therefore, in particular, because evidently you are to be made out here as a prominent National Socialist, I ask you, firstly, did you ever talk to Adolf Hitler?
A.- No.
MR. LA FOLLETTE: I object. I move the answer be stricken, and I object to the question for the reason that it does not go to any crime for which the defendant is indicted.
THE PRESIDENT: The motion is denied.
BY DR. BRIEGER:
Q.- Did you ever talk to Goering?
A.- No, I never talked to any one of the leading people.
Q.- You said to-day--well, no--but I assume that every now and then you talked to your own Gau Leader.
A.- Naturally I did.
Q.- Did your own Gau Leader ever tell you anything confidential about the way in which National Socialists wanted to shape the future, I mean at that time, many years before the war?
Just wait, for a moment, with your answer. Did he, at that time, tell you that it was interned to burn down the Jewish synogogues in the autumn?
A.- The Gau Leader in Wuertternberg never gave me any political instructions. The relationship between the Gau Leader and myself was altogether cool and ceremonial, in particular--as the photographs which the prosecution has introduced show, in the Reissing case at Villa Reitzenstein, which today is still used as a governmental building-after I myself had inspected matters on the spot. Those photographs were put to me today.
Q.- May I have a copy of that?
THE PRESIDENT: We ruled once that these photographs were irrelevant, incompetent, and immaterial. I don't know what they have to do with the case.
DR. BRIEGER: I am not referring just now to the photographs; I am referring to the sentence of the party.
BY DR. BRIEGER:
Q.- Do you have any of that in your possession?
A.- Yes, yes.
Q.- Well, then, would you open that at page 3?
A.- Well, yes, I have got it.
Q.- I think that page is particularly important because there is no evaluation here, but your actual words are quoted.
Is there anything you would like to add, from this point of view, to the statements you made this morning?
A.- The statements which are contained in the judgment of tho Party Disciplinary Court are naturally somewhat exaggerated in the other direction. It would be easy for me if today, under changed conditions, I would assert that is what I said about the Party. However, I can say this much.
As far as the meaning is concerned, that is what I said in those criminal proceedings against Wolf as to certain Party bosses.
Q.- Therefore this judgment corroborates your own statement made this morning on this case?
THE PRESIDENT: That is a matter of a conclusion to be drawn without further testimony.
BY DR. BRIEGER:
Q.- I now want to discuss your work as a judge in the Occupied Eastern Territories, where you appeared as a judge once. I would like to ask you one thing in that connection because even in peace time, here, the conditions of the employment of judges are quite different from what they are in the United States of America.
THE PRESIDENT: Instead of stating each time what you would like to ask and then asking it, just ask the question. Almost invariably you first give us a statement of what you intend to ask, and then you ask it. That is a waste of time.
BY DR. BRIEGER:
Q.- As to the court where you sat as an associate judge, could that court just as well have employed an assessor? That is to say, could that court just as well have employed an assessor who was not yet permanently appointed as a judge?
A.- Yes, an assessor could have been assigned, or a lawyer who had been called up for sufficient service. Unless I am quite wrong, the judge in charge of reporting was in fact an attorney who had been assigned to the functions of a judge.
Q.- You also mentioned that the judges attended their sessions in Party uniforms. Are you sure that they actually wore Party uniforms, or was it perhaps like this? Did the judges in the Occupied Eastern Territories wear the uniforms of a civil servant?
A.- In the Occupied Eastern Territories all civil servants wore the uniform of the civil service.
As I, because of my temporary assignment, naturally could not procure the uniform of a civil servant, I wore tho Party uniform without insignia. As is revealed by the document which the prosecution has introduced, the intention was to provide me with the uniform of a civil servant; but that did not happen, because I returned.
THE PRESIDENT: We think the matter of the uniform is of such minute importance that we will give it no consideration.
BY DR. BRIEGER:
Q Witness, in document NG-983 there is contained a memorandum which shows that an earlier time you had made an attempt to get into the armed forces. You find that on page 11 in NG-983. It also shows that you had tried to get employment as a judge elsewhere.
Have you found it, witness?
A This note, which I probably put down myself, shows me that I tried with all means to got away from the Special Court, and secondly, it shows, as I have already said, that I would not try to get to the District Court at Heilbronn.
Q Have you finished?
A Yes.
Q The prosecution today put to you a judgment where sexual crimes are involved and where several juveniles and a Pole were involved. The case was tried, with you as the presiding judge, and only the Pole was convicted. Was the situation in that case the same as you stressed it in connection with other cases? That is to say, did you have no influence on the prosecution, as such, and all you could do was deal with the defendants who had been indicted before your court?
A In the Mroviec case the situation was that the perpetrators of the sexual offenses wore all boys between 12 and 18 years of age. Those between 14 and 18 were only partly responsible for their actions before the law, and it was the general custom in Stuttgart for such juvenile offenders to be tried by the juvenile court or the juvenile penal chambers where special, experienced judges sat. I had no influence on that.
Q Witness, as concerns the judgments which have been introduced against you, I shall ask other witnesses about these matters as far as I can assume that they have some knowledge about them.
Are there any additional statements you would like to make concerning the Jan case?
AAs concerns the Jan case, I have been unable to discover whether the copy and the original are identical. I have no additional remarks to make.
Q I would like to ask you some questions about the judgnent in the App and Kreutle case.
A There is a serious mistake in the German version of that case, and that might lead people to draw erroneous conclusions. On page 2 the Registrar is mentioned. Naturally, he was not a Staatssekretaer, an Undersecretary, but he was a Justiz Secretary, a Justice official. There is some difference there.
That is all I have to say about this case.
Q How about the Wasmer judgnent?
A I have the Wasmer judgnent before me, and there is nothing else I want to say about that. All you need to see you can gather from the judgments themselves.
Q Now, witness, I am passing on to another matter. May I now ask you to explain something in the Pietra case, something concerning our joint efforts?
A Counsel, I believe in this case all explanations have been given that can be given.
Q I merely wanted to ask you whether it is correct that you told me at the time that you didn't remember the case, and that we had to make repeated efforts of all kinds because you yourself could not remember the case properly.
AAt first that case struck me as rather curious, and it was only gradually that my memory served me again. Now, however, my memory has become certain.
Q As far as I remember, is it correct that at the time when I cross-examined the witness Schwarz I either put all questions to him, or the majority of questions, without previously having had an opportunity to discuss that matter with you? I don't remember that for certain now, but can you tell me?
A We were not able to discuss that natter beforehand.
DR. BRIEGER: Thank you, that is enough.
THE PRESIDENT: Witness, in what capacity was it that you went to Norway in 1945? I think perhaps you have told us, but I don't remember.
THE WITNESS: I went there as an officer of the armed forces.
THE PRESIDENT: That is all.
MR. LAFOLLETTE: If Your Honor please, I think I can straighten up the case record. I had every intention of asking the witness this; I ask that I might be able to ask one question on cross-examination.
THE PRESIDENT: Let's hear the question.
RECROSS-EXAMINATION BY MR. LAFOLLETTE:
Q In the Krupa case, you said that you thought it was murder. I hand you an article, or a copy from an article in the Stuttgart Courier, or in the Stuttgart paper, describing that Krupa case. Does that refresh your memory? Wasn't that an arson case?
AAccording to this notice in the press, it was a case of arson, but I, as well as prosecutor Rimelin, assumed that the Krupa case was a Polish case, that is to say, it was the case of a Pole who had murdered his fiancee.
Q What do you now say? Do you remember it as an arson case, or was it a murder case?
A The Krupa case? I assume that, after all, it was a case of arson, if this notice in the press is identical with the original.
MR. LA FOLLETTE: Yes. Subsequently I will bring the paper up. Thank you. That is all.
THE PRESIDENT: The witness is excused.
(Witness excused)
You may call your next witness.
OTTO KUESTNER, a witness, took the stand and testified as follows
JUDGE HARDING: Hold up your right hand and repeat after me the following oath:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath).
You may be seated.
DR. BRIEGER: May I now begin the examination of this witness?
THE PRESIDENT: Proceed.
DIRECT EXAMINATION BY DR. BRIEGER:
Q Witness, please tell the Tribunal your name, the place and date of your birth, and also your present address.
A Kuestner, Otto, Doctor of Law, born on the 13th of March, 1886, at Stuttgart. I live at Stuttgart, 106 Gaustrasse.
Q Are you at liberty, or are you a prisoner?
A I am at liberty.
Q Witness, what was the last office you held?
A The last office I held was that of President of the District Court of Appeal at Stuttgart.
Q Did that mean that you were the highest ranking judge in the land of Wuerttemberg?
A Yes, it meant that I was the highest ranking judge in the land of Wuerttemberg, but I was not able myself to participate in the legislation because I dealt exclusively with administrative work.
Q In what year did you become Chief President; that is to say, President of the District Court of Appeals at Stuttgart?
A I became President of the District Court of Appeals in Stuttgart on the 1st of April 1935.
Q What was your age at that time?
AAt that time I was 49 years of age.
Q May I ask you now to give us a brief account of your career as a jurist?
AAfter I had passed the two higher examinations in 1910 and 1913 respectively, I worked for a short time as an attorney in Stuttgart.
Then, in accordance with my original plans, I entered the service of the State as a judge.
To begin with, I worked as a judge in Stuttgart, and in the spring of 1916 I joined the Ministry of Justice of Wuerttemberg. At that Ministry of Justice of Wuerttemberg I was promoted in the customary manner, and in 1930 I became Ministerialrat, Ministerial Counsellor. In the year 1934 I became President of the District Court at Stuttgart and as I mentioned before, on 1 April 1935 I became President of the District Court of Appeals.
Q. Witness, as I know with what marks you passed your examination I think I am not risking anything by asking you what were the marks which you got for your first legal examination?
A. I passed the first state examination with the mark praiseworthy, and the second examination I passed with the mark excellent.
Q. Which were your functions as a chief president in general, and also particularly in your relations with the judges?
A. May I first point out that within the area of the District Courts of Appeal the Administration of Justice, contrary to the other administrative services, does not have one chief, but two chiefs. There is the President of the District Court of Appeals and the General Public Prosecutor. The public prosecutors and the entire execution of punishment were subordinate to the General Public Prosecutor. And subordinate to the President of the District Court of Appeals were the other agencies of the Administration of Justice, in particular, the courts. The two chiefs, naturally, in many questions which affected both of them had to cooperate, but for the rest they were entirely independent. Neither one could interfere with the business of the other. The President of the District Court of Appeal, generally speaking, had two functions. On the one hand, as was mentioned before, he was a judge. And, secondly, he had to deal with a multi tude of administrative functions with which he was charged by the Ministry of Justice. These administrative duties increased as time went on, so that as I have already mentioned, in effect I was unable to exercise the functions of a judge, and therefore I dealt exclusively with the duties of the Administration of Justice.
Concerning these administrative duties I believe the most important ones, for our purposes here, are those concerned with personnel misters. Personnel matters mainly included all those questions which were connected with the appointment and the promotion of the officials of the Administration of Justice. The President of the District Court of Appeals was the superior of all the officials of the Administration of Justice. His position as superior varied greatly, however,. It was different concerning the judges from what it was in connection with the other officials of the Administration of Justice. As the judges were independent, the President of the District Court of Appeals as a superior was not able to issue any directives to the judges in connection with their work.
Q. Witness, when did you join the Party?
A. I joined the NSDA? on May 1, 1933, but I did not exercise any functions nor was I a member of any formation, not even an honorary member.
Q. Am I correct in saying that the Special Courts as provided by law were established as early as 1933; and was such a Special Court established in Stuttgart in that year?
A. Yes, yes.
THE PRESIDENT: We know that already. You don't need to ask him.
BY DR. BRIEGER:
Q. Did you play a part in that matter, or do you know anything -just a moment. Can you tell us anything as to whether the judges were selected according to whether they were Party members or not?
A. At that time I had nothing to do with the establishment of the Special Court and the appointment of the various judges, but I do know the people concerned well, and I also know the conditions, and therefore I can testify on that question.
The Special Court was established in March, 1933. At that time not one of the judges who had been appointed either as associate judge or as presiding judge to the Special Court were members of the Nazi Party. It is highly probable that at that time not a single one of them had even said that he would like to join the Party. I cannot be absolutely certain on the latter point, but generally speaking the civil servants, in particular the judges as far as they joined the Party in 1933, did so in the very last days of the month of April. Some of the judges who sat at the Special Court at that time did join the Party in the year 1933. Some joined later, and two however, never joined the Party. One of than until the very end remained a deputy of the presiding judge, that is to say, he remained Cuhorst's deputy.
Q. In 1937 when Cuhorst became the presiding judge at the Special Court were most of the judges or all judges at the Special Court members of the Naxi Party? I think you have answered the question.
A. Yes, yes.
Q. But what is important is, did the Party ever play any part?
A. As to what happened when the Special Court was established and the appointments were made for the first time, I don't know. As long as I had anything to do with those matters the Party never did intervene. There was one occasion when a youngish Amtsgerichtsrat, local court judge, an old Party member, a so-called "Old Fighter", told me that he urgently wished to be appointed to the Special Court, and the Gau leadership gave its support, its strong support, to that request. I did not comply with wish because I knew that judge as having a very rash temper, and as I attached importance to having sober judges sitting with the Special Court. May I add that the judges of the Special Court were always selected from among the best penal judges, most of them younger people.
MR. LA FOLLETTE: May I address the Court for a minute? If Your Honor please, I had two witnesseshere from the French zone from whom I have taken affidavits that have been referred to today.
I don't know whether I can get them back here later. It would be quite out of the ordinary to put them on at the close of the defendant's case, but if there is no great objection, I would rather put the live witnesses on if the Court will permit me, than to use the affidavit and maybe not be able to get the witness back.
THE PRESIDENT: Can you put them on tomorrow morning?
DR. BRIEGER: As the Tribunal knows, I am particularly anxious to go away on Friday. Therefore I would ask you if possible to arrange matters so that, Mr. La Follette produces his witness on Friday. I shall be glad if I could conduct my examination tomorrow and continue it. That would give me the possibility to let two or three witnesses return to Stuttgart. Otherwise they would all have to stay here until Monday.
MR. LA FOLLETTE: I will try to hold these witnesses here. I think I can keep them here now until Friday. If I can possible do it, I think it is better than run the risk of getting them back.
THE PRESIDENT: Hold your witnesses and put them on after Dr. Brieger gets through.
BY DR. BRIEGER:
Q. The President of the District Court or the preaesidium of tho District Court, did they have anything to do with making appointments?
A. The first appointment of the members of the Special Court, as far as I know, was made by the Ministry of Justice of Wuerttemberg, but later the praesidium of the District Court as long as it was in existence, and I believe that was until the end of 1937, dealt with these appointments because the Special Court had been established with the District Court. The praesidium of the District Court was replaced later on by the President of the District Court. And still later the appointments of the presiding judge and of the other judges at the Special Courts were made by a special order of the President of the District Court of Appeal.
Q. Witness, on what was the rotation of the President of the District Court based?
A. As I have already told you, the Special Court was established with the District Court. It was considered part of the District Court. The appointments to the various chambers; that is to say, the making out of the plan of distribution of work, was dealt with at first by the praesidium of the District Court which consisted of the President of the District Court and three district court judges.
THE PRESIDENT: We will recess until tomorrow morning at 9:30.
(The Tribunal adjourned until 4 September 1947, at 0930 hours).
Official Transcript of the American Military Tribunal is the matter of the United States of America against Josef Alstoetter, et al., Defendant, sitting at Nurnberg, Germany, on 4 September 1947, 0930-1630, Judge James T. Brand, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal 3.
Military Tribunal 3 is now is session. God save the United States of America and this honorable Tribunal.
THE PRESIDENT: Mr. Marshal, will you ascertain of the defendants are all present.
THE MARSHAL: May it please Your Honors, all defendants are present in the courtroom with the exception of the defendant Rothaug, excused at his own request.
THE PRESIDENT: Let a proper notation be made.
DR. BRIEGER: May it please the Tribunal, may I be permitted to continue with the examination of my witness, President Dr. Kuestner?
THE PRESIDENT: You may proceed.
DR. OTTO KUESTNER - Resumed DIRECT EXAMINATION - Continued BY DR. BRIEGER:
Q. Witness, first of all will you please comment on the question whether the Special Courts were extraordinary courts or regular courts and whether there were courts of a particular nature before 1933 already.
A. The Judicature Act of 1877 provided two types of courts, the ordinary courts, that is, the local courts, the district courts, the district courts of appeal and the Reich Supreme Court.
THE PRESIDENT: May I mention that all of this matter has been gone into before and appears in a large measure to be wholly uncontradicted. It is not necessary to repeat.
BY DR. BRIEGER:
Q. Then I assume that I can ask the next question. When was Cuhorst appointed presiding judge of the First Penal Senate, and at what time was he appointed presiding judge before the Special Court?
A. Cuhorst in the fall of 1937 was made presiding judge of the First Penal Senate, and if I remember correctly, not simultaneously, but soon after, was made presiding judge of the Special Court.
Q. Could you tell me whether that was done upon his explicit wish, upon the wish of the Party, the Reichministry of Justice, or upon your initiative, witness, and why was there a change in the person of the presiding judge at the Special Court?
A. There we have to distinguish between the position of the presiding judge in the Penal Senate and the position of the presiding judge at the Special Court. The appointment as presiding judge of the Penal Senate was a pure routine matter within the District Court of Appeals. Here an initiative or the Reich Ministry of Justice was quite out of the question. The appointment as presiding judge of the Special Court was initiated neither by Cuhorst nor by the Party nor by the Reich Ministry of Justice. It became necessary because the former presiding judge of Special Court, Director Flaxland, District Court Director Elaxland, in connection with a specific incident had demanded to be relieved from his post. The Special Court Stuttgart, while he was presiding judge, had initiated proceedings against a Jew -- I have to correct it ---it has set the date --it had refused to set the date of proceedings against a Jew because one had to expect with certainty that the defendant would have to be acquitted. The then Undersecretary, Freisler, when he heard about that decision made by the Special Court, was highly excited. He told me over the telephone at that time in no uncertain terms what he thought about it. I very violent expressions he mentioned that he intended to put the presiding judge of the Special Court before the People's Court as an enemy of the state. In connection with that incident I was called to Berlin and had a rather excited conference with the chief of the Penal Division, Ministerialdirektor Crohne. Crohne told me at that time there had been several cases where the sentences of the Special Court Stuttgart had been criticized as being too lenient.
Crohne told me then the Ministry expected absolutely that the practice and the sentences of the Special Court Stuttgart would become more severe. I replied literally, Ministerialdirektor, in all of Wuerttember you well not find a judge who will follow the severe line, that severe course, under all circumstances. Crohne replied, and again I have remembered the words, Then I shall send Prussians. They will see to it.
Q. Witness, why did you consider Cuhorst to be the right man, to be the suitable man to be the presiding judge of both of these penal coouts?
A. After the incident which I have must described, and after the objections which had been made against the practice of the Special Court Stuttgart, I had to expect that the objections and criticisms on the part of the Reich Ministry of Justice would continue. As well as the rest of the judges in Wuerttemberg I did not agree in any way with that severe course. In fact I considered it wrong and my main thought, thinking about the person suitable for the position at the Special Court, was that I had to select a man who would be sufficiently strong personality to withstand the pressure, which could be expected to increase. There was, first of all, one of the presiding judges of the five penal chambers of the District Court Stuttgart, then Cuhorst who a short time previously had become presiding judge of a penal senate. Of there five presiding judges of penal chambers, penal senates, four were to be eliminated in thinking about the position for the Special Court, partly because they were rather elderly, partly for other reasons. Therefore there remained one presiding judge of a penal senate, and Herr Cuhorst. Of both of them I assumed that they would command sufficient strength of character to withstand pressure of the kind I have described. And I also state that the other gentleman was never a member of the Party, which would not have hindered me form requesting his appointment as presiding judge of the Special Court, but in his case -