The Nizkor Project: Remembering the Holocaust (Shoah)

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Archive/File: imt/tgmwc/tgmwc-08/tgmwc-08-74.01
Last-Modified: 1999/11/25

                                                  [Page 158]


TUESDAY, 5th MARCH, 1946

THF PRESIDEN: I have an announcement to make.

The attention of the Tribunal has been drawn by Dr. Hans
Marx, one of the German counsel appearing in this case for
the defence, to an article which was published in the
newspaper "Berliner Zeitung," for 2nd February, under the
heading of "A Defence Counsel." The article, which I do not
propose to read, criticizes Dr. Marx in the severest terms
for an error in his cross-examination of a witness, when he
deputized for Dr. Babel on behalf of the SS. The article
suggested that in asking the question he did, he was
behaving most improperly, that he was expressing private and
personal views under the guise of acting as counsel, and
that his proper course was to remain silent in view of the
character of the evidence.

The matter assumes a graver aspect still because the article
goes on to threaten Dr. Marx with complete ostracism in the
future and does so in language both violent and

The Tribunal desires to say in the plainest language that
such conduct cannot be tolerated. The right of any accused
person to be represented by counsel is one of the most
important elements in the administration of justice. Counsel
is an officer of the Court and he must be permitted freely
to make his defence without fear from threats or
intimidations. In conformity with the express provisions of
the Charter, the Tribunal was at great pains to see that all
the individual defendants and the named organizations should
have the advantage of being represented by counsel, and the
defence counsel have already shown the great service they
are rendering in this trial, and their conduct in this
regard should certainly not leave them open to reproach of
any kind from any quarter.

The Tribunal itself is the sole judge of what is proper
conduct in court, and will be zealous to ensure that the
highest standard of professional conduct is maintained.
Counsel, in discharge of their duties under the Charter, may
count upon the fullest protection which it is in the power
of the Tribunal to afford. In the present instance the
Tribunal does not think that Dr. Marx in any way exceeded
his professional duty.

The Tribunal regards the matter as one of such importance in
its bearing on the due administration of justice, that they
have asked the Control Council for Germany to investigate
the facts and to report to the Tribunal.

That is all.

Sir David, the first application is for the defendant
Streicher. I call upon counsel for the defendant Streicher.

DR. MARX (counsel for defendant Streicher): Mr. President,
the defendant Streicher is indicted under two counts:
Firstly that he was active in the planning and in the
conspiracy for preparation of aggressive war; and secondly
for Crimes Against Humanity.

As far as the first point is concerned, the defence does not
think it necessary to offer any evidence because the
defendant Streicher, during the whole of this proceeding,
was never mentioned in a single document, neither can it be
proved that he took part in any of the intimate conferences
with Hitler. In this respect I did not see fit to offer any
proof. As to the second point, first of all, I should

                                                  [Page 159]

like to call the wife of the defendant Streicher, Frail
Adele Streicher nee Tappe, as witness.

SIR DAVID MAXWELL FYFE: I wonder if it would be convenient
for me to indicate the views of the prosecution on these
witnesses; there are only six of them. Then perhaps Dr. Marx
could make his comments on my suggestions.


SIR DAVID MAXWELL FYFE: The Tribunal will see that there are
six witnesses, and if it would take them in my order, I
would indicate the point of view of the prosecution.

No. 3, Ernst Hiemer, was the editor-in-chief of "Der
Sturmer," and apparently the defendant's principal

No. 4, Wurzbacher, was an SA Brigade Leader in Nuremberg,
and is alleged to be able to give evidence as to the
speeches of the defendant.

No. 2, Herrwerth, was the defendant's chauffeur, and he is
to speak on one point, namely, the defendant's annoyance at
violence being used on 10th of November, 1938.

And No. 6, Dr. Strobel, who is a lawyer, is to speak on the
same point, the disapproval expressed by the defendant in
December 1938, of the measures taken in November.

Then there are two members of the defendant's family: Frau
Streicher, who was his secretary from 1940 to 1945; and his
son, Lothar Streicher.

The prosecution would have no objection to Herr Hiemer, as
the defendant's principal lieutenant, speaking as suggested
by Dr. Marx, on what Dr. Marx calls the defendant
Streicher's basic attitude to the Jewish question. There are
a number of matters on which he is said to be able to speak,
to which the prosecution would object as irrelevant.
However, the time for so doing is later.

Then, with regard to Herr Wurzbacher, he is said to have
always been present at meetings where Streicher spoke, from
the early days. To that also the prosecution would not make
objection, but they draw attention to the fact that in the
earlier applications Herr Wurzbacher was said to be able to
speak as to the boycott in 1933 and the events of November
1938. Therefore, the prosecution respectfully remind the
Tribunal that he can speak on the events in 1938 and, in the
view of the prosecution, it is not necessary to have oral
testimony to repeat that point. They therefore suggest that
with regard to Herr Herrwerth, the defendant's chauffeur,
who really speaks on one main point - that the defendant
showed anger with regard to the events of 1938 - an
affidavit would be sufficient. They suggest the same course
with regard to Dr. Strobel, the attorney who is mentioned.

With regard to Frau Streicher, No. 1, the Tribunal will see
that it is said that Frau Streicher was the defendant's
secretary during the period from May 1940 to May 1945. The
gist of the case against this defendant refers, of course,
to a much earlier period, both before and immediately after
the rise to power.

The prosecution suggest that the evidence which is desired
from Frau Streicher is really a description of the life of
the defendant during the war years, and they suggest that
that, again, be covered by an affidavit.

That leaves Lieutenant Lothar Streicher, the eldest son of
the defendant. If I may remind the Tribunal of how the
matters mentioned in regard to him come into the case: In a
report of the Goering Commission on the question of
corruption in regard to aryanization, part of the report
stated that this defendant paid a visit to three boys in
prison and that certain disgusting and cruel actions took
place. The prosecution, of course, submit that that is not
really a matter relevant to the charges against the
defendant, but they realize that it is a highly prejudicial
matter; it has been read, and a bad effect has resulted from
that evidence. Therefore, they feel it must be a matter for
the Tribunal, and the prosecution, having put in the report
including that, ought not to take objection, except to point
out that it

                                                  [Page 160]

is not strictly relevant. However, if the Tribunal feel that
this defendant ought to have the advantage of his son's
counteracting that account of very unpleasant matters, the
prosecution would not take any objection, although they are
bound to point out that it is not strictly relevant.

THE PRESIDENT: In the view of the prosecution, would an
affidavit be suitable in that case?

SIR DAVID MAXWELL FYFE: Certainly, that is the line the
prosecution would suggest.

Therefore, if I may summarize, what I am suggesting is that
the prosecution would make no objection to Herr Hiemer and
Herr Wurzbacher giving oral evidence, and to affidavits from
the other witnesses.

DR. MARX: I beg to differ in a few respects from Sir David
Maxwell Fyfe. The prosecution hold that the testimony to be
given by Frau Adele Streicher would not be specially
relevant. Opposing this I should like to state that this
witness was for five years, that is from 1940 to 1945, close
to the defendant, handled his entire correspondence and
knows what contacts Streicher had during the whole war.

The defence is particularly anxious to prove that Streicher
had no connection with any of the leading men of the State
or Party while he lived in isolation on his Streicherhof
estate. There was no exchange of letters or opinions with
Hitler, Himmler, Kaltenbrunner, or Heydrich, or any other
leading personalities, whatever their names might be.

Streicher was completely isolated and played no political
role whatsoever; neither had he any authority.

In view of this, I, his counsel, cannot waive the evidence
of this witness, as otherwise the vital interests of the
defendant Streicher would be prejudiced. I, therefore,
suggest that my application to call Frau Streicher as
witness before the Tribunal be granted, so that the
pertinent questions may be put to her.

The same applies to the witness Herrwerth. It cannot be said
that this witness can only give information on irrelevant
matters or on an insignificant incident. On the contrary,
the incident in question is of decisive importance. This man
Herrwerth was present on the night of 9th of November, 1938,
when SA Group Leader von Obernitz reported to the then
Gauleiter Streicher that demonstrations against the Jewish
population were being planned. He, therefore, knows, from
personal experience, what passed between these two men, and
that Streicher was opposed to this demonstration because he
considered such a demonstration to be entirely wrong.

Thus in opposition to the Fuehrer's will and order,
Streicher kept himself aloof from this demonstration against
the Jewish population. There can be no doubt that this
incident is of particular importance. It is clear that the
behaviour of Streicher, who at the time was already in bed
and received Obernitz in his bedroom, corroborated the stand
taken by his defence; I therefore submit that Fritz
Herrwerth be called as witness before the Tribunal, so, that
he can be examined by me and, if necessary, also by the

As to the witness Hiemer, the prosecution and I seem to be
in agreement, that he as well as Wurzbacher appear before
the Tribunal. I may mention that Wurzbacher is now in the
Altenstadt Camp near Schongau, camp No. 10.

As to the witness Lothar Streicher, the defendant Streicher
attaches particular importance to having it confirmed by
this witness that that which the Goering report mentions
about the defendant Streicher's indecent words or acts when
visiting the prison, is untrue.

If the prosecution are prepared to state that they will drop
this point and no longer use this report, then I would agree
to refrain from calling this witness. Otherwise, I consider
it my duty to insist on having this witness called before
the Tribunal to vindicate my client's honour.

                                                  [Page 161]

An affidavit could not possibly meet this purpose and I
therefore submit that the application of the defence be

SUIT DAVID MAXWELL FYFE: On that last point, my Lord, I have
indicated for the prosecution that that incident is not
relevant to the charges against the defendant Streicher. The
prosecution, of course, produced the report and I thought I
had made it clear to the Tribunal that it is one of these
collateral matters that do come in, and the prosecution for
that reason would not oppose an affidavit from Lothar
Streicher. But the main case of the prosecution against this
defendant is on the stirring up of and consistent incitement
to persecution of the Jews. I do not think I can put it
clearer than that. But I hoped I had made clear that the
incident was not one that was relevant upon any other issue.
The report under discussion was on The Aryanization of
Jewish Properties, and that was a passage in the report. The
report itself is relevant to persecution.THE PRESIDENT: The
Tribunal will consider that matter.

DR. MARX: Mr. President, may I make a few additional

This matter which is to be proved by Lothar Streicher forms
a part of the Goering Report and cannot therefore be dealt
with separately from its context. The defendant contends
that this Goering Report originates from a man who wanted to
harm him, who, after having received many favours from him,
became his enemy and used this Goering Commission, which was
originally meant for quite other purposes, to deal the
defendant, whom he hated, a sudden blow.It is a rather
serious matter to say of a man that he indulged in sadism in
the presence of other persons in a disgusting manner. That
is why the defendant is so anxious to have the falsity of
this allegation exposed here publicly.

I therefore submit once more that Lothar Streicher be
brought before this Tribunal.

As to the last witness, Attorney Strobel, I would be very
pleased to comply with Sir David Maxwell Fyfe's wishes, but
also in this case I am afraid I cannot do so.

Attorney Strobel's testimony is offered as proof for the
following: Some time, approximately three weeks after the
events on the night of 9th November, 1938, Streicher
addressed a meeting of the Association of Lawyers at
Nuremberg. At that public meeting of lawyers, Streicher
defined his attitude to the events of 9th of November, 1938,
and made it clear that he had been against the demonstration
and the firing of, synagogues. Attorney Strobel, as he said,
was very surprised at the time that Streicher so openly took
a stand against Hitter's order and made no secret of what he
had said to Obernitz, that he would not take part in the
demonstration and that he considered the whole thing to be a

Strobel's testimony may carry more weight than that of
chauffeur Herrwerth, since in the case of the latter, the
prosecution can hold against the defence the fact that
Herrwerth was an employee of the defendant and may therefore
be inclined to take the defendant's side. This argument,
however, does not apply to Attorney Strobel, as he, in a
letter addressed to the Tribunal, wanted to express his
aversion to the defendant and mentioned the meeting only

Consequently, Strobel must be regarded as an impartial
witness, whereas one might say of Herrwerth that he is
perhaps not wholly disinterested. I therefore submit that
Attorney Strobel also be called before the Tribunal in order
to enable the defence and, if necessary also the
prosecution, to put direct questions to this witness.

THE PRESIDENT: That concludes your witnesses, does it not?
Now you can turn to the documents. No documents? Very well,
the Tribunal will consider your applications.

DR. MARX: Mr. President, may I have a word please? Up to now
it has not been possible for me to collect all the documents
we need. There are a number

                                                  [Page 162]

of newspaper articles which I should like to submit to the
Tribunal, and I ask leave to submit the list of documents
later on. I shall get in touch with the prosecution
beforehand as to which documents should be discarded and
which should be put in.

THE PRESIDENT: Yes, Dr. Marx, the Tribunal will have no
objection to your getting in touch with the prosecution with
reference to documents later on, but you must understand
that no delay can be permitted.

I call upon the counsel for the defendant Funk.

SIR DAVID MAXWELL FYFE: If Dr. Sauter would allow me, I
should like to say that, with regard to these applications,
there is so little between the applications and the views of
the prosecution that it might shorten matters if I were to
indicate the views of the prosecution, and then Dr. Sauter
could add anything he has to say. I could be extremely
short, but I do not want to forestall Dr. Sauter if he has
any objection.

THE PRESIDENT: Would that meet with your view, Dr. Sauter?

DR. SAUTER (counsel for defendant Funk): That I present my
applications now and that the prosecution then reply?

THE PRESIDENT: I think Sir David meant that he should first
indicate any objections which he has, and then you could
explain your view.

DR. SAUTER: I quite agree, my Lord.

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