Official Transcript of American Military Tribunal III in the matter of the United States of America against Josef Alstoetter et al, defendants, sitting at Nurnberg, Germany, on 19 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: All the defendants are present in the courtroom.
THE PRESIDENT: There has come to our attention several applications for both witnesses and documents. These applications are dated September 17. We see no reason why it can be said that any of them have been made in timely fashion and counsel have been repeatedly warned to get their applications in early. Notwithstanding the fact that they are not timely, we have approved the applications and it is done under these circumstances: counsel are notified now that there will be no delay by reason of failure if there is a failure of any of these witnesses or documents to reach here before the closing time for the reception of evidence. If they are received early next week, they may be offered, but the documents have been approved with this qualification.
One of the documents apparently asks for the attendance of a witness in the Russian Zone. Counsel certainly knows by this time that that is a matter which takes time and which involves great difficulties. I may add that in the opinion of the Tribunal, the reception of evidence should be closed as early next week as possible and in no event should continue beyond next week. As to the reception of documents, I realize that this applies chiefly to the Prosecution. Other Tribunals have found the same experience that we have had and we suggest to Counsel that at this late date such documents as are received will be offered and ruled upon and that it is unnecessary to read them. If this Tribunal has erred at all, it has erred in failing to sufficiently insist upon an expeditious trial.
We have done that for the benefit of the defendants. We have given them a very wide latitude in the production of witnesses and documents. The time has come now for expedition and speed in closing up this trial.
You may cross examine as to the document Dr. Wandschneider which you examined last evening.
CROSS-EXAMINATION - Continued EDMUND WENTZENSEN - Resumed BY DR. WANDSCHNEIDER:
Q Witness, yesterday you testified about the Schlueter-Jansen casea case where you pronounced the judgment, the extracts of which are available here in the files. Did you see those files?
A I had those files before me yesterday while I testified.
(Witness is offered the files)
Yes, those are the files, Naturally, I only glanced' at them.
Q In these files, at the very beginning, there is a letter from the SA Brigade No. 12, Hamburg, in which the Brigade asks the police authorities to let them have the case file. In the reply, it is stated that the SA Brigade is to be kept informed about the case. Then there is only your judgment dated 15 May 1945. Until that date when you passed judgment, was any attempt made either before the trial or during the trial by the SA or by the Party to exert any influence on the proceedings?
A No.
Q Do you know that the SA was being kept informed before hand about the proceedings?
A I can't tell you that now, but I don't believe so.
Q You only gathered that from the files?
A I don't have the files before me at the moment.
(Witness is offered the files)
THE PRESIDENT: Are these files to be in evidence? If they are, there is no need to ask a witness what they contain.
MR. KING: Your Honor, this is the Document NG-2410 which was marked for identification yesterday. There was no German text available and for that reason we didn't offer it in evidence yesterday.
THE PRESIDENT: I ask if you propose to offer it.
MR. KING: Yes, we do propose to as soon as the German copy is ready.
THE PRESIDENT: The instrument will be the best evidence of its contents.
BY DR. WANDSCHNEIDER:
Q Have you now convinced yourself, witness, that the SA from the very beginning of the investigating procedure knew that proceedings were to be instituted against Schlueter and Jansen?
A I have now convinced myself of that fact, but I should like to emphasize that I may have known beforehand but can't tell that from recollection.
Q It was the 15th of May 1935 when that trial was held, was it?
A No, as you can see from the first page of the judgment, the trial opened on 10 May 1935. It went on for four days and closed on 15 May.
Q Well then, the 13th of May was the last day of the trial and was the day you announced your judgment?
A Yes.
Q Did you ask representatives of the SA to attend the triad?
A In view of what I may call the scandalous behavior of the SAwitnesses, Dr. Skok, as an assistant of the Prosecution, asked me whether it would be advisable to ask the superiors of these SA men to attend. He suggested that they should be asked and with my agreement he asked the SA superiors, and on the second or third day of the trial they appeared and attended the trial.
Q Is it correct that you excluded the public, at least in part, when you announced your judgment?
A The transcript should show that. I don't remember. Perhaps Public Prosecutor Skok can say something about that. I don't think that's out of the question that was so.
Q May I just show you the last page? Would you read through it, please?
(Witness is offered the document)
A The document which has been shown to me is page 45 of the written opinion which I passed on this case. I can sec from this page at the closing stage of the reading of my opinion I excluded the public because following the passages pertinent to the case, there were general statements concerning the SA being made -concerning their dangerous behavior.
Q May I have the judgment back, please? Why was it that you excluded the public? The reasons you have mentioned, were they all your reasons? Go on, please.
A There were reasons which the law calls reasons of state security.
Q If you were of the constitutional opinion that the public itself exercises the best control on jurisdiction, why did you think then that the security of the state would be endangered if you admitted the public?
A Because of the fact that the superiors of the SA defendants had been asked to attend the trial for the purpose of taking the speediest possible disciplinary measures against the SA members who had been indicted and who were ready to commit perjury as witnesses. That was a matter which did not so much interest the public as it concerned the institution of the SA, and that was why the statements which I made after I pronounced the actual judgment were considered an appendix, and those statements were no longer of any interest to the public.
Q Those disciplinary measures, could they not be taken by the superiors of the SA, even if the public had attended? Did that have anything to do with the fact whether the public was present?
A The disciplinary measures could have been taken even if the public had been present, but they were not in any way connected with the case as such.
Q Witness, evidently at that time -- no, no. I don't want to ask that question. It might be a leading question. Were you at that time of an opinion which wanted to bring about enlightenment through a properly conceived and interpret National Socialism correctly because at the end of your opinion you wrote. "in the interest of the National Socialist movement and the Fatherland, I hope that such a change will occur soon through such a criminal trial as this one."
A Yes, I beat the SA with its own weapons. That was what I wanted to do at this trial. I wanted to show the difference between the words and the deeds. Therefore, I was highly indignant when Dr. Rothenberger did not give me any support. On the contrary, Dr. Rothenberger charged me with having quoted Hitler's decree in my judgment, in which Hitler says. "The SA has to give an example. No German mother should hesitate to let her son enter the SA or another National Socialist formation." I received the criticism by Dr. Rothenberger telling me that I had completely misunderstood that decree. I do not know even now what that misunderstanding should have been.
Q Concerning the further progress of that trial, you have already testified here, and therefore I need not ask you any further questions. I have finished.
REDIRECT EXAMINATION BY MR. KING:
Q Judge Wentzensen, just one or two short questions. You testified previously that Rothenberger called you in connection with the Jansen case and rebuked you for your attitude. He called you in again later. Now in the first time that he called you in, was it evident to you that he had read your opinion in the Jansen case?
A I wort to see Donato?. Rothenbergor twice. Our first conversation ended with my asking Senator Rothenbergor, after he had rebuked mo sovordly, whether ho had road my written opinion at all. Ho said ho had not. I then asked him to acquaint himself with my opinion. His reply was that ho would do so and ho would call me back to him after he had read the opinion. But he also told me that another judge who had attended the trial and the pronouncement of the judgment had told him that my oral opinion had been bad. I asked Dr. Rothenberger to give me the name of that person. He did so and told me that it had been Dr. Moeller, Director of the District Court -Landgerichts director. Then I told Dr. Rothenberger that Dr. Moeller had only board five minutes of another reading of the opinion at the beginning, although it had taken an hour to read out the whole of the opinion, Further, I told Dr. Rothenberger that the Senior Public Prosecutor Schubert had been present during the whole time the opinion was being read out, and that Dr. Schubert had approached me afterwards and had told me that this was a nasty case but that my opinion had been excellent.
Dr. Rothenberger told me that he would discuss the matter with Dr. Schubert. My second conservation with Dr. Rothenberger occurred later, and at that time Dr. Rothenberger told me that he had now read my written opinion. The judgment was a theoretical judgment. Furthermore, he told me that the prosecution had handled the matter quite incorrectly and for that reason he would take the matter up with the General Public Prosecutor too. The SA had complained considerably about me and had been quite justified in doing so. I had bawled out the defendants, and the SA was complaining that the Marxist witnesses had boon taken under oaths by mo whereas I had not believed the SA witnesses and had told them I suspected them of having committed perjury. He told me once again that I would have to leave the Service of the Penal administration of Justice. That was mainly what passed between myself and Dr. Rothenberger in the course of the two visits I had to pay Dr. Rothenberger in that matter.
Q Thank you, Judge Wentzensen. You testified yesterday that you had a conversation with Letz at one title in which he said, "Do you think it is good to be an adjutant?"
I don't understand: whose adjutant was Letz at that time?
A What Letz wanted to say was that he found it unpleasant to be an adjutant to Dr. Rothenberger, Adjutant means in Germany ...
Q Excuse me. Then the answer to the question is that Letz was Dr. Rothenberger's adjutant at that time?
A He said that he was Rothenberger's adjutant and he was not satisfied with that, yes.
Q Now, Dr. Wetzensen, yesterday Dr. Wandschneider asked you a question concerning tho Bulk case as to how you knew or how Dr. Reuter knew thus the files reached him by mistake in the first instance. Now since yesterday, have you had an opportunity to examine the original files and can you offer an explanation based on the original files as to how tho original files reached Dr. Reuter by mistake? May I show you the original?
(Files offered to the witness)
A Yesterday in a hurry when I saw the photostat for the first time I could only just glance at it. The Prosecution yesterday gave me tho opportunity to scrutinize the photostat, and I found that I did not answer Dr. Wandschneider properly.
Q Dr. Wetzensen, if you find that portion in tho original photostat copy and it's very short, it might be well to read it, but if it's not very short, kindly just summarize it for us.
THE PRESIDENT: The witness was saying that he had erroneously answered a question.
MR. KING: Yes.
THE PRESIDENT: He is certainly entitled to make his explanation, whoever it may favor.
THE WITNESS: Dr. Wandschneider asked me yesterday whether I could remember what reasons Dr. Reuter had given me for the files having reached the prosecution by mistake. Now that I have seen page five of those files, - remember again, that is page five, No. 2489. For the police president ordered that the official cremation business connected with the funeral or of Buhk is to be handled by the Gestapo, and the same Gestapo then ordered through one of its staff, Handrich, that the matter should be handed over to the prosecution for the prosecution to give the permission for the funeral to take place, necessary under the law.
Court No. III, Case No. III That was the wrong channel through which the files sent.
Originally the files were to go to the Gestapo but not to the Prosecution, for the plans for the funeral to be issued. As I told you yesterday Dr. Reuter further said to me that the whole matter was extremely difficult and embarrassing, and I remember that now because I have read page 3 of that file where it says that it was advisable not to allow the relatives to see the corpse but to have it cremated immediately. I have also had an opportunity to examine the question which the Prosecution put to me concerning page 25 of the file, the question was whether I knew Herr Baritsch, and what Herr Baritsch's position had been. My answer was that Baritsch was a Public Prosecutor or Senior Public Prosecutor. That is correct, out it wasn't a complete answer because as a result of the pages being stapled together rather badly I had ignored that on page 25 Baritsch acted at the request of the administration of Justice, of which Dr. Rothenberger was in charge, and signed a letter by which tie administration of Justice asked for information concerning the progress the case was making. To that extent I have to supplement my testimony. The defense counsel yesterday mentioned, and if I remember correctly, the Prosecutor also mentioned the question whether Buhk died through murder or suicide. I am -
THE PRESIDENT: Just a moment, witness.
DR. WANDSCHNEIDER: Just a moment, please, witness, We have now discussed this Buhk case again in detail, and I don't hesitate to go into the matter again, but I think we dealt with it properly yesterday and I think we had concluded the Buhk matter, because otherwise I would have to go into all of these questions again.
THE PRESIDENT: Counsel, that is quite incorrect.
You concluded your cross-examined in that matter yesterday. This is re-direct examination. The witness is entitled to make his explanation of his previous testimony. Your objection is overruled.
WITNESS: I would not have made these statements unless the Tribunal had told me I was entitled to supplement my testimony of yesterday. As I am a witness under oath here I think I am entitled to correct these matters.
THE PRESIDENT: Go ahead.
WITNESS:
A. May I refer to page 26 of these files, that is a letter of the 2nd of November 1934, by the General Public Prosecutor in reply to a letter by Dr. Baritsch dated the 27th of October, 1934, concerning the progress of this case. Naturally, at that time I didn't know the letter and I have seen it now for the first time. It is astounding to find that in this reply the General Public Prosecutor asserts that according to the finding of the expert physicians the death had occurred through suicide. I believe that my testimony yesterday concerned the findings of the official physician showed that the physician did not say that at all but merely stated that it was probable that hanging was the cause of death, but that it was neither his job to say, nor did he say on his own initiative, whether Buhk died from committing suicide or for other reasons.
BY MR. KING:
Q. I have just one final question, Dr. Wentzensen. When Letz called you in for a discussion of the case and stated his views or at least stated the views that you heard from him for the first time and you said you could not comply with what he was asking you to do because it was to the best of your conscience against the existing law, specifically, did you have in mind?
Would you explain that briefly, please?
A. As I told you yesterday, Letz, who was also Deputy of the Chief of the Administration of Justice, told me that the courts did not have to deal with happenings at the concentration camps. That directive was contrary to the two basis principles of the Weimar Constitution, that is to say, on the one hand contrary to the independence of the Judge, which was guaranteed under the Weimar Constitution, and secondly also it was contrary to the principle which says: "Nobody may be removed from the jurisdiction of his lawful Judge." If the police was no longer under an obligation under Article 159 of the Penal Code of Procedure to report crimes committed on prisoners to the prosecution, that meant that the offenders who had committed such crimes were removed from the jurisdiction of their lawful judge, and I tried to explain that to Dr. Letz, too, and that was why I took a position to his statements. His reply was as I told you yesterday, it was neccessary to understand the great happenings of the time. I should like to say that Buhk had been beaten so severely to make him admit something about an illegal organization which was supposed to have existed.
MR. KING: I have no further questions on re-direct. May I say parenthetically that the Baritsch which Dr. Wentzensen has mentioned is the same name that appears in NG2251, which is Exhibit 591. The name is spelled B-a-r-it-s-c-h; it is mis-spelled in Exhibit 591.
THE PRESIDENT: The witness is excused. Call your next witness.
CROSS EXAMINATION ERICH WALDOW
DR. WANDSCHNEIDNER: May it please the Tribunal, my examination of the files has abviated my questioning of this witness Waldow about the Jantzen case, a right which I had reserved for myself.
THE PRESIDENT: You reserved the right to crossexamine as to this one case?
DR. WANDSCHNEIDER: Yes, only on the Jantzen case, I have read through the Jansen files with that in mind and I compared the files with the statement by the witness, Dr. Waldow, and I see no reason for asking Dr. Waldow any further questions, and I, therefore, refrain from examining Dr. Waldow any further.
THE PRESIDENT: You completed your direct examination, didn't you, Mr. King, didn't you complete your direct examination of this witness?
MR. KING: The direct examination of the re-direct?
THE PRESIDENT: Was there cross examination which you have not conducted re-direct on?
MR. KING: There was cross examination which I have not conducted re-direct on as I recall it.
THE PRESIDENT: Go ahead.
MR. KING: Excuse me, I believe that is not correct. Dr. Wandschneider did not cross examine last night; he said he would reserve; -- Your Honor is correct -- and this morning he said had no cross examination, so technically there should be no re-direct.
THE PRESIDENT: Then the witness is excused. You are excused witness. Call your next witness.
MR. KING: The Prosecution calls Dr. Skok of Hamburg.
BY 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.
DIRECT EXAMINATION DR. HERBERT SKOK BY MR. KING:
Q. Would you, for the purposes of the record, give us your full name and present address, please?
A. Dr. Herbert Skok, Hamburg I, Gurlittstrasse 46. I am forty years old.
Q. Dr. Skok, you are familiar with the Jantzen case, I should like to put the file before you for the purpose of identification.
A. Yes, I know about the Jantzen case. I have here in front of me portions of the Jantzen file.
Q. And is this document, identified as NG-2410, which is now before you, the record in the Jantzen case?
A. Do you want me to find a definite page? What page is it you want me to look at'
Q. No, I merely asked you if the file before you identified by the number I gave you is the record in the Jantzen case?
A. Would you mind repeating that number, please.
THE PRESIDENT 2410
THE WITNESS: That is correct.
BY MR. KING:
Q. Yes, I mean Dr. Skok when the Jantzen case was originally tried, you were public Prosecutor, were you not in charge of that case?
A. Yes, I was, I was the assistant to the Prosecutor and I acted for the Prosecution at this trial.
Q. Dr. Wentzensen testified this morning there were SA men in attendance at the trial. Now did you take any action to have the SA men attend the trial'
A. Yes, after I had discussed the matter with the Presiding Judge, that is, the witness in this trial, Dr. Wentzensen, I asked the superiors of Jantzen and his SA men to attend the trial on the day on which I made my plea.
Q. And they did attend in accordance with your invitation, right?
A. Yes, on that second day of the trial Standartenfuehrer Triund appeared and his adjutant, Sturmhauptfuehrer. Benrends.
Q. Now, can you tell us briefly, Dr. Skok, what the SA men who attended the session of the Court, in which Judge Wentzensen's decision was made known, can you tell us what their re-action was at that time, as you observed it, of course?
A. Well, the SA leader after my plea quite openly took sides with the defendants. They went across to the three defendants, shook them by the hands and talked to them, using "Du, thou", the intimate form, and one of the two SA Leaders, I believe it was Benrends, Sturmhauptfuehrer, said to Jantzen, not in the presence of the judge and not in my presence either, but during a brief recess in the presence of the guard. (Gerichtswacntmeister), and he said it so loudly that the guard had to hear and me intended him to hear, and while he spoke those works me pointed to the bench: "What do those people up there know about National Socialism. After all, in the former times they sentenced the Nazis. They still do it. Jantzen was such a good Sturmfuehrer in the Red District." We were told that the SA Oberfuehrer confirmed him, emphasizing that Jantzen had been such an efficient Sturmfuehrer, and raised his fist so as to give proper emphasis to his works.
Q. Yes, now, can you tell us briefly what the attitude of - what the actions of the SA men who were sentenced continued to be after the trial and while they were still under sentence, as you and the other people in Hamburg observed it?
A. Well the defendants behaved in an unheard of manner before the Court. They were definitely trying to influence the Judge a short while before my plea.
Q. Dr. Skok, I think you misunderstook my question. I ask you if you observed any subsequent, any actions subsequent to the trial of these SA men in the matter of public demonstration?
A. Yes, I understood your question, but I think I should say a little more, because I think it is a part of the whole matter. I should say first that Jantzen himself stated before I made my plea, that he had already told a high ranking person, and we - the judge and I - thought he was referring to the Reichstatthalter Kaufmann, about the attitude of the presiding judge at the trial on the first day. It was obvious that the judgment which was made in accordance with the sentence I had asked for would have the effect of a bomb shell, but the SA leadership would not agree to leave things at that and they had already said they would not leave it at that, they said so in the court room. There was an appeal against my judgment and public efforts were made and the defendants were praised to High Heaven. Jantzen was placed in charge of leading the sturmbann. Pictures of him and his detachment appeared in the Nazi Paper, Hamburger Tageblatt, and that paper also publiched articles and there was a public announcement to the effect that Jantzen was going to be sent to the Party rally in 1935 as an official delegate, there to be introduced to the Fuehrer, to have his hand shaken and to be awarded a decoration. I am firmly convinced that the purpose of all of those things was merely to influence the outcome of the appeal proceedings and to make sure that the outcome would be the desired one.
Q. Yes, now, Dr. Skok, did you as Public Prosecutor go to part headquarters at Berchtesgaden and complain about the action of the SA men, both in court and subsequent to the decision of the Court?
A. Yes, when I was on leave in June 1935 I went to Berchtesgaden and asked for an audience with SA Obergruppenfuehrer Brueckner. In the house of the Fuehrer, I was not immediately able to see Oberfuehrer Brueckner. He was at a meeting and I saw his adjutant, a man whose name was Dr. Haase. I gave Dr. Haasa a copy of the judgment in the Jantzen case. I called his attention to page 45 of the judgment, that is the page which I have here, No. 125, it says there that it is necessary for the Hamburg SA leadership on the basis of the fuehrer decree of the 30th of June 1934, to suspend immediately the SA men who had been convicted though the conviction had not yet legal force. As I have already told you the steps which the SA leadership took were to the contrary. Not only were those people left in their jobs, out they were promoted and they were extolled as examples and thus other SA members were admised to imitate them. They were almost forced to follow that particular example as they were made to see that the SA leadership in Hamburg rewarded punishable acts committed by SA men by promoting them. At that time conditions in the SA in Hamburg were absolutely impossible. Excesses happened all of the time. I myself repeatedly had to deal with cases before a summary court where SA people had committed excesses against the police and other persons.
Q Dr. Skok, I don't want to interrupt you, but I think you are digressing some what from the course of the question. You were testifying that you saw the proper party man in Berchtesgaden and complained to him about the SA activity in connection with the Jansen case. Now, then, after this conference you subsequently returned to Hamburg, did you not?
A Yes.
Q And following your return to Hamburg did anything happen concerning the case and your part in it?
A Yes. Dr. Drescher, the general public prosecutor, asked me to go and see him. He told me that the sentences which had been passed on those people were much too severe, and that the sentences would not be upheld. That prophesy by the general public prosecutor, which was almost a guarantee, was incomprehensible to me to begin with, as the competent appeal judge, Dr. Waldow, who has been heard here, and his opinions were known to me. I knew that with him it was out of the question that the sentences might be reduced considerably. The general public prosecutor, however, told me quite positively that it would happen in that direction. He told me that he - in negotiations which were being held almost every day - had tried to settle the matter with the SA. It was obvious, therefore, that the SA had approached him and had approached the Reichsstatthalter and had approached Dr. Rothenberger as well in connection with the results of the first trial and had complained about the outcome of that trial. Dr. Drescher told me that he had spent three hours talking to the Reichsstatthalter and that he had been arguing with him all the time. The matter had now been settled and the grass had now grown over this severe judgment, and what he actually said in so many words was: And now -- will you forgive this hard expression: the big animal, well, the camel of the German proverb -- now you, the big animal, the camel, as the German proverb says, come here and eat up the grass. Of course I realized immediately what had happened in the meantime. A judgment which had not yet acquired force cannot just he allowed, to have grass grown over it, and one cannot by laborious, almost daily conferences and by arguments of three hours with the Reichsstatthalter, and those arguments had been very embarrassing to him as he told me -- one cannot by such methods just deal with the matter and settle it for good.
A conspiracy, a plot, must have been formed, the object of which had been to settle the matter at the appeal proceedings the way the SA wanted it settled, that is to discontinue the case, and, as I know, that actually happened.
Q Yes. Now, Dr. Skok, did you hear from Drescher again? If so when, and under what circumstances?
A On the 19th of July, 1935, for those political reasons I was dismissed from my position with the prosecution, and that with immediate effect. Dr. Schubert, who was then the senior public prosecutor, handed me the order which was signed by general public prosecutor Drescher. He told me that Drescher had been forced to act this way. He was sorry that he had to hand me an order decreeing my dismissal, and when he said that he was sorry, that was merely a polite phrase. He added that he by mistake had received the letter which SA Brigade 12, Hamburg, had written to the general public prosecutor. In that letter the question was asked, what steps had been taken against Assessor Skok. Dr. Schubert, in saying goodbye to me, stated that Dr. Drescher did not wish me to go and take my farewell from him. At a later time in my personal file I saw the letter from the SA Brigade 12. The next sheet in my personal file contains the order decreeing my dismissal.
Q Yes.
AAnd that means that the general public prosecutor dismissed me at the request of the SA.
Q Yes. Dr. Skok, I would like to inquire now briefly what is your present position in Hamburg, and what do your duties consist of?
AAs public prosecutor with the prosecution at the district court.