Archive/File: imt/tgmwc/tgmwc-08/tgmwc-08-74.01 Last-Modified: 1999/11/25 [Page 158] SEVENTY-FOURTH DAY 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 intimidating. 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. THE PRESIDENT: Yes. 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 lieutenant. 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 prosecution. 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 granted. 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 remarks? 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 mistake. 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 incidentally. 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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