THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Mr. LaFollette, there was some conversation with reference to two prosecution witnesses from the French Zone.
MR. LAFOLLETTE: Yes, your Honor, They are both still here.
THE PRESIDENT: And you will have no difficulty in keeping them here no matter how long this examination continues; is that correct?
MR. LAFOLLETTE: If your Honor please, they will stay.
THE PRESIDENT: Then counsel for both sides may rely upon it that they will be examined irrespective of the length of this examination.
DR. BRIEGER: Could I have a litter talk with Mr. LaFollette?
MR. LAFOLLETTE: May I say, your Honor, that after I suggested this arrangement Dr. Brieger pointed out that he still must get away for a very fine personal reason on Friday.
THE PRESIDENT: We understand that, but I want him to he assured that regardless of how long this examination takes these witnesses will be kept here and in due time, will rectify.
MR. LAFOLLETTE: Unless the Court orders otherwise, I would like to put them on now rather than bring them back. That is my position.
THE PRESIDENT: They will be kept here.
DR. BRIEGER: Your Honor, if it will be agreeable to the Bench and also to the Prosecution, I would suggest that late this afternoon both witnesses of the Prosecution will show up here. It will be just a short examination. I am merely interested in examining one definite witness today because he is also ailing. However, the third witness would also like to be examined today but these two examinations will probably be much shorter than the examination of Dr. Kuestner. Therefore, I consider it possible to examine them in between but I would line to ask urgently that the witnesses will not be examined while I am out of town.
THE PRESIDENT: They will not be examined while you are out of town, and if it is agreeable to you they may be examined this afternoon.
DR. BRIEGER: Yes. May I ask a very few questions of the witness, Dr. Kurstner, in order to conclude this examination?
BY DR. BRIEGER:
Q. Witness, the Prosecution, some time ago, submitted to two Tribunal two so-called Fuehrer Informations which were introduced to the Tribunal with No. NG-632, Exhibit 187, and NG-1249 Exhibit 402 respectively. The first exhibit concerns Stuttgart directly and I am referring to the second one only for purposes of comparison. Four your information, Witness, I would like to state briefly, it is entitled "Fuerher Information" That is supposed to mean information which the Reich Ministry of Justice sent to Hitler; that this happened frequently and repeatedly and it is designated with No. 66.
This copy which was submitted here is supposed to be the particular copy which was returned to the Ministry of Justice for their files; whereas, according to the explanation at made by the Prosecution, the original was sent to Hitler. I take the liberty to submit both of them to you and then I shall ask you a question about them, namely, the following, as to whether you notice anything as to the official methods. Look at it and take you time.
A. As to the regulations and usages in the official channels of the Reich Ministry of Justice, I am not informed; but I worked long enough in a Ministry and later on as Chief of a Large government agency to be able to say that these documents have several noticeable aspects regarding the official routine of business. According to my felling, the copy that is retained in the files should, in the case of such an important document as a report of the minister to Hitler, that is, to the head of the state. Definitely show who has the responsibility for sending it out. It should thus, as one says, be initialed and it should also have a forewarding remark. At least that is my opinion.
I notice another thing too. The Reich Ministry of Justice had stapled files, for the two documents that I have before me, it can be concluded positively that the original of which the photostats were made was not stapled into the files. That as all I can say in regard to this point
Q. Only one brief question in regard to the matter itself. Do you know anything about this incident regarding Stuttgart?
A. No.
Q. A question of a different nature now. May I ask you to give this book to me, please? Could a judge for temporary employment be transferred to a different district of a district court of appeals and there be employed as a judge?
A. That was at least during war time possible. It was effected by the Ministry but also I believe if the district court of appeals if the district that was concerned agreed that the judge be transferred away from it. In the letter case the judge, I believe, had also to agree, At least I assume so.
Q. A final question. Witness, what do you know regarding the fee that Dr. Klett asked for in the Oesterle Case and what effect did these matters have while you participated in them?
A. Lawyer Dr. Klett in Stuttgart had, together with another lawyer, taken over the defense of Oesterle who was later condemned to death.
THE PRESIDENT: What fee did he ask for?
THE WITNESS: As far as I recall Dr. Klett asked for a fee of 7,000 Marks. Later the case was referred to the disciplinary chamber because of asking for too large a fee and the two counsel were fined. If I remember correctly, Dr. Klett was fined 3,000 Marks. The Ministry issued the instruction to me to examine the question as to whether, according to the existing regulations, the excessive fee could not be reduced. The Ministry wanted to made the appeal by the general public prosecutor dependent upon the answer to this question. As the appropriate, fee for Dr. Klett would have been a thousand Marks according to the disciplinary chamber. I reduced the fee to that amount.
DR. BRIEGER: Thank you, witness. I have concluded my examination.
THE PRESIDENT: Does any other defense counsel desire to examine?
DR. KUBUSCHOK: Dr. Kubuschok for the Defendant Schlegelberger.
BY DR. KUBUSCHOK:
Q. Witness, before, you discussed the conferences among the presidents of the district courts of appeal in the Ministry of Justice which took place at regular intervals, One thing is certain in the case of these conferences, that Dr. Schlegelberger participated usually. Can you tell the Tribunal what was your impression regarding the attitude of Dr. Schlegelberger at these conferences, what was the tendency which he had, as a rule, in these conferences?
A. I had know Dr. Schlegelberger since approximately 1920.
THE PRESIDENT: Just answer what was our impression as to his attitude in these conferences.
A. I had the following impression about Dr. Schlegelberger at these conferences and at other official meetings, namely, that he felt himself to be a high official of the old type, that his remarks too were in accordance with that; that he was always endeavoring, as far as it was possible to heim in accordance with the entire situation, to take care of the interests of the Administration of Justice and of justice as such. In particular, in personal of official matters discussions less so in the case of these official conferences, it could be easily recognized that there were considerable differences between Freisler and Schlegelberger, not only in their personalities but also in their conception of the things that were necessary.
DR. KUBUSCHOK: Thank you.
DR. WANDSCHNEIDER: Dr. Wandschneider for Dr. Rothenberger. May I address a few questions to the witness?
BY DR. WANDSCHNEIDER:
Q Witness, for how long have you known the defendant, Dr. Rothenberger?
A I have known Dr. Rothenberger since approximately 1935 from these conferences of the presidents of the district courts of appeal which have been mentioned frequently.
Q Did you gather any more detailed impression of his personality and on the basis of what events?
A I gained an impression of him in particular at a conference where Dr. Rothenberger gave a lecture concerning the attacks which were constantly made in the "Schwarze Corps", the organ of the SS, at that time, against the Administration of Justice. Dr. Rothenberger, as was generally recognized later on during the discussion period, spoke in an extraordinarily brave and frank manner, and requested Dr. Guertner to go to Hitler himself and stop these attacks in the "Schwarze Corps."
Q What happened after these representations?
A If I recall correctly, some time later a decree was issued to the General Public Prosecutor in Stuttgart and it was issued to the General Public Prosecutor because, among the officials of the Administration of Justice who were attacked, there was also a prosecutor from Stuttgart. This decree, as far as I remember, expressed the following, namely, that Minister Guertner had spoken with Himmler, that Himmler had stated that he disapproved of these attacks. Moreover, I still recall that in this decree, in a somewhat weakened form, Himmler's regret regarding these attacks was expressed.
Q Did you see anything of Dr. Rothenberger's work during the war in the Reich Ministry of Justice?
A Yes.
Q Would you please describe it?
AAt such conferences Dr. Rothenberger frequently opposed the attitude of the Reich Ministry of Justice, especially Dr. Freisler.
Q Was his reaction towards Freisler especially violent and strong?
A Oh, yes. It was easily recognizable that the two were very definite opponents and that these differences were expressed again and again.
Q What was the general opinion after Dr. Rothenberger became Undersecretary? What was his relationship to Thierack and how did it develop later on?
A Regarding Dr. Rothenberger, especially after the tale which I described just now, one had high hopes. One did not expect a great deal of good from Thierack on the other hand, regarding tho Administration of Justice. At first everything seemed to go well, since apparently Thierack seemed to have made the reform ideas of Dr. Rothenberger his own to a large extent, so that one could assume that Dr. Rothenberger would be able to exert a sufficient influence on Thierack.
After Dr. Rothenberger left the office of Undersecretary, Thierack stated at a conference that the reason for Rothenberger leaving his office was that in a book which had been published under his, that is, Rothenberger's name, that apparently had been written by a younger assistant of his, in brief, a plagiarism had occurred.
THE PRESIDENT: We are familiar with that entire story.
BY DR. WANDSCHNEIDER:
Q We don't have to hear anything about this whole story, witness. In that connection I merely want to ask the question: Were you and your colleagues and the circles of jurists, when Rothenberger left his office, convinced of the fact that very serious material differences in addition to the personal ones were the reasons for Rothenberger's leaving?
A I was of that opinion and I was not the only one. I believe I remember that on the occasion which I mentioned before, Dr. Thierack also gave a hint to that effect, something like this, that it was an open question as to whether, in the course of time, because of the material differences of opinion, he would not have had to part with Dr. Rothenberger.
DR. WANDSCHNEIDER: Thank you very much. I have no further questions.
THE PRESIDENT: Is there any other direct examination? The Prosecution may cross-examine.
CROSS-EXAMINATION BY MR. LaFOLLETTE:
Q Dr. Kuestner, did you ever work in the Reich Ministry of Justice?
A (No response.)
Q Did you hear me? Did you ever work in the Reich Ministry of Justice?
A No.
Q Did you know that Dr. Hans Gramm was the personal referent or adjutant of Dr. Schlegelberger?
A Yes.
Q Do you know that after looking at the Fuehrer Information sheet No. 6 which you looked at - PF 632 he said, "After perusing the contents of No. 66 the Fuehrer Information, that is copy 3 of the original, I can say that copy submitted to me is an authentic copy of the original."
Do you still want to express the opinion to this Tribunal that from your observation as a man who had never worked in the Reich Ministry of Justice, that Fuehrer Information Sheet is not a valid Fuehrer Information Sheet?
AAt the outset of my answer to the question that the defense counsel of Cuhorst asked me, I stated that the customs and instructions in the Reich Ministry of Justice in this manner of handling the files are not known to me. I merely expressed my own opinion. Whether it is correct I don't know.
Mr. La-FOLLETTE: The Prosecution offers Document NG-1884 as Prosecution Exhibit 576, which is the affidavit of Dr. Hans Gramm.
DR. BRIEGER: I want to raise an objection to the submission of this exhibit. I must now refer to the rule made by the Tribunal which Mr. LaFolette referred to only the day before yesterday, but at that time, in my case, an event was concerned which occurred before the rule was made; whereas, this affidavit bears the date of the third of July 1937 and at least is affected by the first rule which was laid down in March and in which the Tribunal made it clear that the Tribunal expects that every witness who is present in Nurnberg should appear here before this Tribunal and be examined by counsel.
The Prosecution had cause, all the more to call him and examine him, since the witness Gramm appeared in this courtroom and was examined extensively and, therefore, I do not see why, thereafter, and affidavit by this witness is offered in evidence.
Mr. LaFOLLETTE: My friend makes a very good point. He doesn't know that without driving me, as far as the Gramm affidavit is concerned, I am perfectly willing to waive the rule as to him.
Gramm was here, your Honor, but there was no opportunity to present him as a witness and no opportunity to return him. I would like to have the affidavit offered for whatever it is worth and if I can't get him back, the Court may attach such probative value as it cares to attach. As far as Klett is concerned, in order that we may proceed I had anticipated, when that affidavit came up, that I would not raise any objection.
DR. BRIEGER: Much as I am otherwise inclined to comply with Mr. LaFollette's request, I see this as a case of very essential importance and, much as I regret it, I have to insist upon my objection.
THE PRESIDENT: All you have to do is state an objection and we will assume that you insist upon it.
Will you please tell us, in a few words, exactly what the issue that you have been discussing is with reference to this Fuehrer Information?
MR. LaFOLLETTE: Yes.
THE PRESIDENT: I didn't understand this witness to say that the exhibit was not an authentic exhibit.
MR. LaFOLLETTE: I understood him to say that it was not an authentic exhibit, that from what he had seen it had never been issued because the third copy that he saw was not in the form which would be customary if an original had been issued.
I will say to Your Honors also that whether I offer it now, which may not be the proper time-- I had contemplated offering this affidavit as a rebuttal affidavit, if I can't get Gramm back here, because, as I recall, the defendant Schlegelberger stated that he did not believe that PS-632 was an office copy of valid Fuehrer Information. This affidavit by the man who dealt with them states that it is a valid copy; I mean, that the copy in the office shows that a valid Fuehrer Information was issued and that it is valid.
THE PRESIDENT: What is the number of the exhibit? I have the exhibit number, but what is the document number?
MR. LaFOLLETTE: NG-1884.
THE PRESIDENT: It will be marked for identification at this time; for identification only.
MR. LaFOLLETTE: May it be delivered to the Secretary General so that it may be in his possession?
THE PRESIDENT: Yes. You can offer it in connection with your rebuttal evidence, and we will rule upon it then.
MR. LaFOLLETTE: Yes, sir.
BY MR. LaFOLLETTE:
Q. As I understood you, witness, you stated that the fact that the defendant Cuhorst had asked to go to the Ukraine arose out of his disfavor with the Reich Ministry of Justice and the officials in the Ministry of Justice at Berlin. Are you of the opinion that when he requested a change of position to the Ukraine, or the right to go to the Ukraine to see whether he would like to work there, that was the granting of that evidence that he was in bad repute at the Ministry of Justice?
A. I was not speaking about the Ukraine before, but about Cuhorst's desire to become District Court President in Austria. However, I do know that for a short time Cuhorst was on leave in order to go to the Eastern Territories. Whether that happened to be the Ukraine, I don't remember. He wanted to inform himself as to whether he would find employment there that would suit him. I don't know whether the reason for this desire was that he knew he was in bad repute with the Reich Ministry of Justice. Cuhorst never spoke to me about that. At least, I do not recall such a conversation.
Q. You testified, did you not, that he was in bad repute with the Reich Ministry of Justice?
A. Well, "in bad repute" is perhaps saying too much. When I was examined by the defense counsel I testified that probably-
THE PRESIDENT: It is necessary to repeat what you testified to; we heard it. If you wish to explain it, you may.
BY MR. LaFOLLETTE:
Q. Was he in bad repute or wasn't he?
A. Well, it all depends on what you mean by "bad repute". I mean, the Reich Ministry of Justice, perhaps, did not take him quite seriously, because, due to his early membership in the Party, he received a very high office while he was still very young. And then in the course of years, without doubt, the Criminal Division of the Reich Ministry of Justice did not like him because he did not comply with their desire to make the jurisdiction mo e severe.
Q. Well, on the 15th of April, 1943, you remember writing Ministerial Counsellor Dr. Koehler in Berlin, in which you said that the Gauleiter would have no objection to Cuhorst being given a job anywhere else, but that they did not want him. to have another job in Wuerttemberg? Do you remember that letter?
A. At the moment I do not recall that letter, but I believe that that was actually in accordance with the opinion of the Gauleiter (Document submitted to witness).
Q. Will you examine that photostat of your letter? Did you write it?
A. Yes, I did.
Q. Thank you.
MR. LAFOLLETTE: The prosecution offers as Prosecution Exhibit 577 the document NG-2319, the original.
THE PRESIDENT: The exhibit is received.
BY PR. LAFOLLETTE:
Q. Now, witness, was the Gauleitung the political leadership corps of the Gau ?
A. Yes, it was.
Q. You know, do you not, of the letter that the defendant Cuhorst wrote on the 27th of April 1943 to this same Dr. Koehler, in which he expressed the desire: "Furthermore, I would like very much to go to the seat of the Gauleitung, inasmuch as I have been a member of tho Gau staff in Stuttgart since tho end of 1932."
?
A. I do not know that letter, nor can I recall that Cuhorst discussed it with me, but nevertheless, it is possible. Cuhorst was very excited at the time, and he was angry because Koehler had told him that he did not know anything about Cuhorst being interested in the position of President of the District Court of Appeal in Ravensburg. It is possible that Cuhorst also told me at the time that he had written to Koehler, but I don't remember.
Q. Well, what I am asking you is this. If Cuhorst himself asked to go where there was a seat of a Gauleitung, you wouldn't say that his experiences in Wuerttemberg had in any way lessened his ardour to be a member of the Party Leadership Corps wherever he might go. That is correct, isn't it?
A. As far as I know, as a Gau Speaker he belonged to the staff of the Gauleitung. However, as far as I know, he had a rather subordinate rank.
MR. LAFOLLETTE: The prosecution offers document NG-2321 as Prosecution Exhibit 578. It is a letter from Cuhorst.
THE PRESIDENT: The exhibit is received.
BY MR. LAFOLLETTE:
Q. Now you testified, Dr. Kuestner, that Dr. Schlegelberger represented a high official of the old type and attempted to safeguard the dignity and character of the Reich Ministry of Justice. Did you approve of that conduct of the Reich Ministry of Justice by Dr. Guertner?
A. People from the Provinces, of course, did not have the necessary knowledge and information to be able to form a correct judgment, and also, we probably did not know the difficulties that prevailed, particularly in the Central Office, regarding the continuation of the old course, if I way say so.
We in the Provinces way have had an easier time of it.
THE PRESIDENT: Could you answer the question as to whether you approved of the conduct of Schlegelberger as you described it?
MR. LAFOLLETTE: That is what I was just going to ask him, Your Honor.
THE WITNESS: I don't know whether it is possible here to give a total opinion just like that. In some things, of course, it would have been desirable -
BY MR. LAFOLLETTE:
Q. Excuse me. You approved of Dr. Schlegelberger, you just testified here; is that right ? Do you stand by your testimony that you gave about Dr. Schlegelberger? Yes or no?
A. Yes, yes.
Q. All rights If you approved of Schlegelberger, did you or did you not approve of his conduct in the Ministry of Justice?
A. I believe I did not express a general approval. If I expressed my opinion-and I believe that I did that before it was possible that Schlogelberger did do that, in accordance with a difficult situation.
Q. Now, you made regular reports, as the President of the Oberlandesgericht at Stuttgart, to the Ministry of Justice, did you not?
A. Yes, I did.
Q. I will hand you on, that you made on the 30th of November 1932, after Dr. Thierack come in.
THE PRESIDENT: You mean 1942?
MR. LA FOLLETTE: Yes, 1942; I beg your pardon.
(Document submitted to witness.)
BY MR. LA FOLLETTE:
Q. That is marked there. Do you find what I find there in the third paragraph?
"The news of the appointment of a new Reich. Minister of Justice and a new Undersecretary of State has given a fooling of relief to all jurists. Everywhere prevailed the opinion that things could not have gone on much longer as they did."
Did you fool that way when you wrote that letter?
A. Well, I believe the report was somewhat colored. The situation that there was no minister at all--that is, permanently--was regarded as untenable. We were under the impression that as Dr. Schlogelberger was only in charge of the ministry as feting Minister, without being a minister himself, he could not act in the same manner. Also, which is not expressed here, but which was mainly behind it, was Dr. Freisler's disappearance.
Q. Dr. Freisler is dead, isn't he?
Dr. Freisler is dead, isn't he?
A. Yes, yes.
THE PRESIDENT: He left the Ministry?
MR. LA FOLLETTE: That is about the same time, Your Honor. He went to the Presidency of the People's Court when the defendant Rothenberger was made Undersecretary.
THE WITNESS: Yes, that is right.
BY MR. LA FOLLETTE:
Q. "Everywhere prevailed the opinion that things could not have gone on much longer." Do you refer to the attitude towards severe sentences of the then existing or the previous Minister of Justice which Hitler had denounced on the 25th of April, 1942? Did you agree with Hitler's policy; his complaint?
A. Never. I can say that when I heard that speech over the radio at that time I almost blushed with share that it was possible to make such a speech at all.
Q. Now, the essence of the speech was that the penalties being given were not severe enough for war-time. Is that right? Is that your understanding of it?
A. Yes--well, at that time I cited a particular example, and then drew some conclusions on the basis of that.
(Document submitted to witness)
Q. Now, in discussing severity of sentences, on the 2nd of March, 1940, I ask you to turn to the second paragraph and I will read what I have translated from that paragraph that is marked:
There exists no doubt among lawyers and that section of the population which is interested in the Administration of Justice that during the war public enemies have to receive the most severe penalties and, if necessary, must be exterminated from the human community."
Do you find that there?
A. Yes, I have found it.
Q. I thought you testified that about the tiro that Cuhorst was selected, you told him in Berlin that you could not him anyone in Wuerttemberg who would want to exterminate people from the community.
Why didn't you take the job yourself?
A. Yes, but I ask you to read also the following sentence.
Q. Yes, I want you to.
THE PRESIDENT: I haven't been exactly informed as to who is supposed to have written this.
MR. LA FOLLETTE: I beg your pardon, Your Honor. I asked him if he sent in a situation report in March of 1940, I thought. I an sorry. This is in the witness's own handwriting. I am very sorry.
THE WITNESS: That is a report which I made.
BY MR. LA FOLLETTE:
Q. Yes. Read it: "However, political or SA leaders...." Go on, read that.
A. However, political leaders or SA leaders who, for any reasons whatsoever, repeatedly attended a trial before the Special Court, later stated that in such and such a case they did not understand the high penalty that was pronounced, or the high motion for a penalty which the prosecution made. I must confess that sometimes I have had a similar impression, particularly in the application of Section 4 of the Decree Against Public Enemies. It may be exaggerated, if occasionally, it has been said that the offender today cannot know any more whether he will come off with a fine or risk his head, nor is it of first-rate importance what the offender thinks; but it is not without significance that spectators rt the trial, whose"sound sentiments of the people" cannot be denied, have similar thoughts".
Q. Yes. Now, having made that report of the 2nd of March 1940, from which you have just read, and your report of the 30th of November, 1942, which you first read, can you explain to the Court now what you meant when you said in your report of tho 30th of November 1942 "Everywhere prevailed tho opinion that things could not have gone on much longer as they did"? Did it have any reference to tho sentences that were given under Schlegelberger's regime?
A. No, I do not believe so. As I have already stated, it was regarded as a lack that there was no real minister who could, of course, have faced tho Party in quite a different manner.
Q. You testified that you, as the presiding judge, were open to tho information which as received from judges and lawyers generally in the community.
A. Yes.
Q. Do you remember a situation report which you wrote on tho 5th of September 1941?
(Document submitted to witness)
May I read to you where it is marked on that report, beginning:
"Firstly, the Reichsstatthalter, in his capacity as Reich Defense Commissioner, confiscated for the land of Wuerttenberg, the Untermarchtal Convent with its entire assets." Do you find that?
A. Yes
Q. Will you read that please?
A. "Firstly, the Reichsstatthalter, in his capacity"-Tho report starts: "Recently two occurrences in my area have created a sensation. Firstly, the Reichsstatthalter, in his capacity as Reich Defense Commissar, confiscated the Untermarchtal Convent with its entire assets, among them bad Ditzenbach and a large hospital in Stuttgart." It says "confiscated for the land of Wuerttemberg" in quotes. Then it goes on, "... because the Convent is charged with having committed considerable offenses against the instructions..." etc.
Q. A little slower please. If you dont mind; you can read rapidly, but we have to talk.
Now, "An investigation...."
A. "An investigation concerning these contraventions is at present being conducted by the prosecution of the Special Court of Stuttgart. The confiscation has created a Sensation, especially in Catholic circles. They do not regard it as a disciplinary action against guilty individuals, but as a blow against the Catholic Church as such."
Q. Yes, thank you.
You acquired that information in your position as a judge, did you not?
A. At that time apparently no indictment had been filed yet, and officially I could not have received that information as yet. However, I probably just heard it in the course of conversation, and because this occurrence created a considerable sensation, and in particular because the legal basis was quite hazy, I put "confiscated for the land of Wuerttomberg" in quotas in this report. Therefore, I reported this case to Berlin.
Q. Yes. Now, with reference to the question of the severity of sentences, which you said did not exist in Wurttemberg, let's turn to your report of the 4th of December 1943. You made one then.
A. The 4th of December?
Q. The 4th of December, 1943.
Now, on page 2 of the original I find a rather substantial paragraph, which is marked, and which begins---it is mark on there:
"In the present stage of the war the prosecution of malicious undermining and defeatist remarks is one of the most important tasks of the competent courts."
