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 -
THE PRESIDENT: I don't think we are greatly concerned about the other man. This case involves only the matters which relate to the defendant Cuhorst. Will you limit your testimony to that subject.
THE WITNESS: Yes Mr. President. I said already, I assumed that Cuhorst would be strong enough. He seemed to be robust enough so as not to weaken if the matter would go for a considerable time.
THE PRESIDENT: You made that clear.
THE WITNESS: I know from previous conversation with him that in connection with sentencing people for political offenses he had a rather reasonable point of view and thus I considered him the suitable man for the post as presiding judge. I spoke with him, or maybe upon my initiative my personnel referrent did so. Cuhorst was not immediately ready. He asked to be given time to think it over. He talked to me once again, and after I had told him about the background for the intended change in the person of the presiding judge he agreed to assume the post as presiding judge.
Q. Wasn't Cuhorst on such good terms with the Party and his Gauleiter that in consideration of the amount of backbone, as you said that he had, he could also expect to be supported by the Party in addition to that case, as against Berlin?
A. Cuhorst came there as an old Party Member, and therefore, so to say, as a man who had the confidence of the Party. That is when he came into the Ministry of Justice at Wuerttemberg. But for anybody he had an opportunity to look at matters more closely, it could be seen that the Gauleiter since about 1934 no longer had a very good opinion of Cuhorst. What the reason for that was, I could not say in detail. Although Cuhorst was a Gau speaker, he had no other office in the Party, as far as I know, and had no rank of any importance in the organization of political leaders. Gradually I gained the impression that he knew Cuhorst had a high position in civil service and that the Party liked to use him for propaganda purposes, but he was not too highly esteemed within the ranks of the Party. I, of course, also took that into consideration, that the Reich Ministry of Justice, that is, the Penal Division of the Reich Ministry of Justice, would possibly exert less pressure on Cuhorst because it was possible that the Ministry based itself on the assumption that in case of a conflict, Cuhorst would be supported by the Gauleiter. The relations to the Gauleiter worsened subsequently -
THE PRESIDENT: Your next question. We will proceed more expeditiously if she procedure of asking questions and answering them briefly is followed, rather than making a long address.
BY DR. BRIEGER:
Q. Witness, you mentioned that the Gauleiter did not think too much of Cuhorst. Did you mean by saying that, he didn't think too much of him as a jurist, or did you mean to say that he Gauleiter did not consider him too reliable politically? At any rate, not as far as the official policy was concerned?
A. Certainly that did not refer to the legal qualifications. The Gauleiter was not in a position to judge that. Of course I meant purely political questions.
Q. Did you also consider that at the Reich Ministry of Justice the differences between him and the Gauleiter would not be known?
A. I assumed that at the time in the Reich Ministry of Justice-
Q. Since you mentioned Cuhorst as Gaureder, may I interrupt with the following question. Did you ever have an opportunity to attend a political meeting here Cuhorst was a Gau speaker?
A. Yes, once i-
THE PRESIDENT: The answer was yes. Ask your next question.
BY DR. BRIEGER:
Q. Do you have any standards of comparison so that you could tell us whether you considered him particularly fanatical, or whether his views were just routine?
A. I do not remember the text of his speech, It was just routine.
Q. Do you know anything about if whether as a rule he spoke on mass meetings at Stuttgart or whether he preferred to speak in the open country?
A. As far as I know, Cuhorst did not speak in mass meetings, but only in simple local groups, particularly in the open country.
Q. I go to the next question. Witness, when Cuhorst took over the Special Court did he have any personal advantages in addition to being presiding judge of the Penal Senate?
A. I have to say no. He had no advantages, particularly no advantages in pay. He just got his pay as President of the Senate.
Q. Did he have as much work in the First Penal Senate as the President of the Fourth Penal Senate, and wasn't it true that he had a great deal of additional work with the Special Court?
A. The two Penal Senates had the same amount of work. Cuhorst, in fact, assumed a considerable amount of additional work. Since he could not fully do the work for both jobs, from the very beginning, from the outset I had offered him the possibility to have somebody deputize for him as presiding judge, either in the Penal Senate or in the Special Court.
Q. Since you are just speaking about the Senates, were all those judges Party members?
A. I spoke already about the Special Court. At the moment I cannot quite tell you who of the judges was active in the Penal Senate, but 1 remember two judges who were not members of the Party as long as they worked in the Penal Senate. They are not identical with those judges of the Special Court whom I mentioned yesterday.
Q. Did Cuhorst have especially good relations to the Party, to the NS Lawyers' League, to the SD, and to the police, that is especially to the Secret State Police, the Gestapo? Did he have any lateral relations to the Reich Ministry of Justice? What was his connection with the General Public Prosecutor -
THE PRESIDENT: Just a moment. This time I have been counting, and I think there are six questions all in one there. Ask a question briefly and let him answer it, and then ask another question.
BY DR. BRIEGER:
Q. Did Cuhorst have particularly good relations to the Party? You have already answered that. To the NS Jurists' League?
A. The same applies here which I have said about his relations to the Gauleiter.
Q. Do you know anything about the fact whether he had relations to the so-called SD, Security Service, and of what kind, of what nature?
A. Of relations of that kind nothing is known to me.
Q. Do you happen to know anything about the relation she might have had to the police, especially to the Gestapo?
A. I do not know anything about any close relations that Cuhorst might have had to the Secret State Police.
Q. Did he have any lateral relations to the Reich Ministry of Justice? By that I mean of an inofficial nature?
A. No, I do not know anything about that, either.
Q. Could you tell us something about official connections with the Reich Ministry of Justice?
A. I believe that Cuhorst, because of extraordinary circumstances, due to his membership in the Party, he had come into the high position of a President of a Senate, within the Reich Ministry of Justice was not greatly appreciated from the very outset.
Q. What was his connection to the General Public Prosecutor?
A. Between the General Public Prosecutor and Cuhorst in addition to the most necessary official relations, there were no further relations.
Q. What was his relation to the Senior Public Prosecutor? I mean Senior Public Prosecutor Dr. Link, who frequently is mentioned in documents submitted, and I remind you of the indictment against Skowron.
A. As for the Senior Public Prosecutor Link, who was at the same time the Chief of the Prosecution with the Special Court, his relations to him, the same as mine to him; were definitely bad, definitely poor.
Q. Can you tell us what that was based upon?
A. I believe that cannot be said with just a few words. The Senior Public Prosecutor Link, from the outset, went with the Party. As for Cuhorst, although he was a convinced National Socialist, no doubt he did not do that. Also, there were various matters in the personal attitude of the Senior Public Prosecutor Link. I don't know whether it is really necessary to discuss that here in detail.
Q. The Senior Public Prosecutor Link is said to have organized meetings, a get-togethers which Cuhorst thought were not in good taste, and Cuhorst had even almost prohibited his judges from attending; I need not discuss details here. Can you tell us whether that is correct?
A. That Cuhorst disapproved of these get-togethers which defense counsel mentions, that I know. Whether he advised his judges against attending, that I could not tell.
Q Do you know any particulars as to how the burden of work and the actual work of Cuhorst was until he was drafted?
A That can be said very briefly. The burden which I have mentioned before already increased in the course of the years, especially since the sphere of competence of the Special Court was extended by assigning more judges.
I was in a position to help some, but due to the shortage of personnel, it could not be effective enough to balance the amount of work.
Q What was the official personal relation of Cuhorst to the other members of the Senate and the Special Court?
A I can say that the relations between Cuhorst, as presiding judge, and the members of the Senate and the Special Court were good and friendly, and some of the gentlemen have confirmed that to me.
Q Did Dr. Rieger, who was the immediate superior of Cuhorst as President of the District Court of Appeals, did he ever speak to you about it?
A I can't remember that.
Q The judges who worked with Cuhorst, were they subordinate to him officially, was he their superior, or what was the relationship between them?
A Cuhorst was not the disciplinary official superior of the judges. He could not give them any technical instructions. He was the primus inter pares. His voice had the same weight as that of any other member of the Senate.
Q When you speak about "vote", do you mean to say that the vote was taken at the deliberation?
A Yes, of course. A vote was taken. The so-called leadership principle did not count there -- the Fuehrerprinzip.
Q But that does not mean that one had to take a vote when it was quite apparent the gentlemen were unanimous?
A Yes, of course. That is what I think it was. I was not present during the deliberations, of course.
Q A witness has said that Dr. Wagner outvoted Cuhorst and that therefore Cuhorst saw to it that Dr. Wagner was transferred. Can you say anything concerning this point?
A Whether Dr. Wagner outvoted Cuhorst, I do not know. It would have been necessary, of course, that another member of the Special Court joined Wagner in order to effect that. This is the way it was with Wagner. Wagner, whom I personally appreciated highly, is a jurist of great knowledge. The Suebian official has an inclination to detail and to be too methodical, and these qualities were highly developed with Wagner. He also was inclined to stick firmly to his conviction and was not open to reason sometimes. Before Wagner was assigned to the Special Court, he had been reporting magistrate in a large trial concerning fraud before a penal chamber.
THE PRESIDENT: The question that was asked you was, first, relative to the nature of the disagreement between Cuhorst and Wagner, and second, whether the defendant Cuhorst took steps to get Wagner removed or transferred.
Will you limit your answer to those two points?
BY DR. BRIEGER:
Q Witness, I believe that you have understood me correctly, although I didn't say that. I would appreciate if you could give me details, but I will put specific questions to you. Do you happen to know whether Dr. Wagner had any differences of opinion with other presiding judges?
A Certainly; for the reasons mentioned before.
THE PRESIDENT: We are not concerned with that. We are not going to try Wagner or the other judges with whom he had disagreements.
BY DR. BRIEGER:
Q Do you happen to know anything as to whether it is true that Wagner was not used as a judge all the time, but he was assigned to an administrative position, and how did it come to it?
A During the time of the so-called total war effort, I had the order to put at the disposal of the Labor office, 67 per cent of my entire personnel, and that in four groups. At the time of the first group, the presiding judge of the local court at Stuttgart, where Wagner was working at that time, put Wagner on the first list.
THE PRESIDENT: The Tribunal has suggested and advised and cautioned; it will now direct. You will follow the instructions which I have given you.
DR. BRIEGER: I certainly will, Your Honor.
THE PRESIDENT: You will do so and do it now. Limit these answers to the matters which relate to Cuhorst. If you think there is something which is relevant to the defense of Cuhorst in his connection with Wagner, ask him specifically about that connection between those two men; and if you do not, then pass on to something else. Just go ahead and ask a question. You understand our instructions?
DR. BRIEGER: Yes.
BY DR. BRIEGER:
Q Are you in a position to judge the work of Cuhorst as a judge, particularly whether he applied the laws?
A Cuhorst, in my opinion, was quite able to fulfill his task as a judge. I consider it a matter of course that he applied the existing laws and stuck to them.
Q Did you frequently or at least occasionally attend sessions under Cuhorst so that you could gain an impression of his manner of conducting a trial?
AAs far as I remember, only once -- that may have been in 1938 -- I attended a meeting of the Special Court with Cuhorst presiding. That was a full session. I did so because I counted on he possibility that in this case the Gauleiter or the SS could make an attempt to help the defendant, an SS Sturmfuehrer who had killed a member of the police, and they could save him from a just punishment. Cuhorst conducted this, at any rate, delicate proceedings in a manner which left no objection.
Later, I only attended small parts of special court trials, and on these occasions I noticed a certain nervousness on the part of Cuhorst and sharp remarks which ho made against the defendants occasionally.
Q Do you have any reason to assume, or wouldn't you assume that the manner of conducting a trial finally reflected in the sentence?
A No, I don't think so.
Q Witness, you just spoke about a certain definite case. Do you mean the case Reissing which has already been discussed by Cuhorst in the witness stand?
A Yes.
Q Were there ever any complaints submitted to you or any unofficial objections to you or your personal referent that Cuhorst limited the defense or did not proceed in accordance with the rules of procedure? Would you please comment on that?
A Never were any such complaints made to me, neither by defendants -- which one could understand -nor by defense counsel or witnesses or prosecutors. One time only, but that was long ago, an attorney came to see me. He told me he was a defense counsel in a case before the Special Court, and Cuhorst had let him have the files for a certain amount of time, but he would like to have an extension for a reason -- which I no longer remember today -- he wanted me to exert influence on Cuhorst in that direction.