The Nizkor Project: Remembering the Holocaust (Shoah)

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                                                    [Page 1]

EIGHTY-NINTH DAY
SATURDAY, 23rd MARCH, 1946

THE PRESIDENT Have
you consulted the defence counsel as to the order in which
they wish to take these supplementary applications?

SIR DAVID MAXWELL FYFE: I have the order which the Tribunal
has, beginning with Streicher.

THE PRESIDENT: Perhaps that would be the most convenient
then. Is Streicher's counsel ready? Dr. Marx?

DR. MARX (counsel for the defendant Streicher): Your
Honours, Mr. President, on behalf of the defendant Julius
Streicher I have applied for the calling of Fritz Herwerth
as a witness before the Tribunal. This witness is a man who
has been in the immediate vicinity of the defendant
Streicher for years and who, because of that, is in a
position to offer information on all political events that
can, in many ways, have a bearing on the decision and
judgement in the case of Streicher. In particular, I have
applied for this witness because he was present on that
night of the 9th to 10th November, when the defendant
Streicher had a conference with the S.A. leader von
Obernitz, at which von Obernitz informed Streicher that he,
Obernitz, had received the order to carry out demonstrations
against the Jewish population during that night. Streicher
will establish that he then told Herr von Obernitz that he,
Streicher, dissociated himself from this affair, that he
considered these demonstrations a mistake, and that he
refused to take part in them. Obernitz thereupon stated that
he had received the order from Berlin and had to carry it
out. It can . . .

THE PRESIDENT: Sir David, do you object to this alteration
of our previous order?

SIR DAVID MAXWELL FYFE: My Lord, we have not seen any change
in the situation as the Tribunal decided it, but we do not
want to press against this witness being called, except that
we must point out that there is not any change. All these
matters were gone into by the Tribunal. If the Tribunal
feels that it would be better that the witness should be
called, then the prosecution will not take any objection.

THE PRESIDENT Have these interrogatories been drawn up?

DR. MARX: No, they have not yet been completed. I beg your
pardon, Mr. President, is this question put with reference
to the witness Herwerth?

THE PRESIDENT: Yes.

DR. MARX: Yes, the questions to the witness have been
completed; the questions which the defence wishes . . .

THE PRESIDENT: Dr. Marx, we will reconsider that. You have
got something else, have you not, Dr. Marx. You want some
document; there is some document you are asking for, is
there not?

DR. MARX: May I speak, Mr. President? Actually, I should
like to ask that both the documents referred to be placed at
my disposal. That is, the matter of the suit against Karl
Holz in the year 1931 and the files of the disciplinary

                                                    [Page 2]

proceedings against Julius Streicher, concerning which I am
unfortunately not able to give the year. It might be
1931.THE PRESIDENT: But, Dr. Marx, did we not, with the
agreement of the prosecution, strike out a passage from a
document, which was critical of the defendant Streicher?
Does that not render this evidence entirely irrelevant?

SIR DAVID MAXWELL FYFE: That was about the witness Lothar
Streicher, the son, about an interview that took place in
prison, in which there were certain allegations, and these
were struck out by the consent of the prosecution. I confess
I do not know whether the disciplinary proceedings in the
matter of Streicher -

DR. MARX: I beg your pardon, Mr. President. May I speak? The
matter in which Lothar Streicher figures is from the Goering
report concerning the visit or the conversation Streicher
had with three youthful criminals, during which Streicher
was supposed to have taken an ugly or improper attitude.
Lothar Streicher was named as a witness by me to testify
that at that time no such thing happened. That is in
connection with the report of the Goering commission,
whereas the other matter is concerned with a disciplinary
action. This proceeding was completed in 1931 before the
disciplinary court at Munich.

THE PRESIDENT: Was it not all in connection with the same
alleged offence by Streicher?

SIR DAVID MAXWELL FYFE: My Lord, I have the details now, if
I might read them. I think it makes them clear. The first
application in relation to the proceedings against Karl Holz
reads, "The documents requested herein will be used to prove
the following facts:

  During these proceedings Dr. Erich Bischof, an authority
  on the Talmud, from Leipzig, gave evidence under oath
  that there was, in the Jewish religious book 'Sohar' a
  law allowing ritual murder.

THE PRESIDENT: But, Sir David, there are two different
applications, are there not? There is this application with
reference to the Jewish religious book and then there is the
other application with reference to the trial of Karl Holz.

SIR DAVID MAXWELL FYFE: As I understood it, My Lord, this
application is headed "Files in the trial in the matter of
Karl Holz," and one of the pieces of evidence in the trial
of Karl Holz, according to Dr. Marx's application, was the
evidence of Dr. Erich Bischof as to the Talmud; and the
application goes on to say that "these facts are relevant to
my defence for the following reasons:

The accused wishes to prove with these court records" - that
is, the record from the trial of Holz - "that the 'Sturmer'
did not deal with the question of ritual murder against his
better judgement." That is, as I understand it, that the
"Sturmer" dealt with ritual murder according to the
knowledge of Dr. Bischof, as expressed at that trial. That,
in my respectful submission, would be quite irrelevant.

THE PRESIDENT: What is the date of this religious book? It
was written in the Middle Ages, was it not?

SIR DAVID MAXWELL FYFE: I think so, My Lord, and it was
produced on 30th October and 4th November, 1931, by Dr.
Bischof.

Then, My Lord, the second one - just to get it clear, so
Your Lordship will have it in mind - is the files of the
disciplinary proceedings in the matter of Streicher at the
disciplinary court at Munich. "The documents requested
herein will be used to prove the following facts:

The accused wishes to prove, with the production of these
files,

  that he was not dismissed from his profession because of
  indecent assault but on political grounds, and with the
  granting of part of his salary.

I myself do not see the relevance of it, but perhaps Dr.
Marx can inform the Tribunal.

THE PRESIDENT: Is it charged against him in the Indictment?

                                                    [Page 3]
SIR DAVID MAXWELL FYFE: No, there is nothing about his
criminal record other than on anti-Jewish grounds.

THE PRESIDENT: In that connection the prosecution agreed to
strike out any reference to that incident, did it not?

SIR DAVID MAXWELL FYFE: I am not sure that it is the same
incident, but the prosecution did agree to strike out the
only reference to it that appeared in the record, to my
knowledge - to any reference to a matter of that kind. That
was as to the treatment of certain boys in prison.

DR. MARX: Mr. President, may I, to clarify the matter, make
a few statements now. The defence counsel for the defendant
Streicher applied to have the file on this disciplinary case
produced for the following reason:

Streicher was asked by a Russian interrogator whether he had
been dismissed from his office because of moral delinquency,
and therefore it is necessary to have the file on this
disciplinary case produced. This file shows that Streicher
was not dismissed from his school post because of indecent
conduct, but because of his political attitude. That is one
point. And quite apart from that is the matter in which
Lothar Streicher is supposed to act as a witness. That was
the matter mentioned in the report of the Goering commission
concerning the three young delinquents who were visited by
Streicher, and on which occasion he is supposed to have been
guilty of indecent conduct.

I come now to the question of Dr. Bischof, Mr. President.
This matter concerns the following: Streicher is accused,
with reference to quotations from the Talmud or quotations
referring to ritual murder, either of having consulted
incorrect translation or of not having ascertained facts
sufficiently, in a frivolous and grossly negligent way.

THE PRESIDENT: When you say, Dr. Marx, that he is being
reproved with that there is no such charge in the
Indictment. No such charge has been made in the course of
the case of the prosecution. The charge against him is that
he provoked the German people to excesses against the Jews,
not by misquoting some Jewish book, but by referring to
Jewish books of the Middle Ages.DR. MARX: I take the liberty
of drawing attention to the fact that, on the contrary, the
prosecutor, Lt. Col. Griffith Jones, when he presented the
case against Streicher, referred to this point explicitly
and accused Streicher of having here, against better
knowledge, quoted passages from the Talmud. And
consequently, it is important that this file against Holz is
consulted, because in it is established, by the witness Dr.
Bischof, how the quotations came about. This Dr. Bischof is
a recognized scholar. But, Mr. President, the whole matter
could still be shortened if the prosecution states today
that this whole matter regarding the ritual murder is not to
be made a subject of the Indictment. There would then be
eliminated from the trial an element which could only extend
it in any case, and which can play no important part against
the defendant anyhow, and has nothing to do with the actual
Indictment.SIR DAVID MAXWELL FYFE: I want to make that
position perfectly clear. The important point in the case
for the prosecution is the use of the suggestion against the
Jews, that they committed ritual murder. If someone takes an
extract out of a book in the Middle Ages and reproduces it
so that it will be understood by the ordinary reader as
being a practice of Jews or a reason for disliking Jews,
then the prosecution says that that is an evil method of
stirring up hatred against the Jews. Whether anyone can find
in the Jewish book of the Middle Ages some remark about
ritual murders is really immaterial. The gravamen of the
case for the prosecution is using the ritual murder
accusation as a method of stirring up hatred against the
Jews today. That is the case which the defendant has to
meet.THE PRESIDENT: We will consider the application.

DR. MARX: I beg your pardon. I consider it necessary,
nevertheless, to answer at least very briefly the statements
of the preceding speaker, Sir David Maxwell Fyfe. The fact
is that the special number of Der Sturmer under discussion
makes

                                                    [Page 4]

reference in particular to a trial which took place in 1899
at Piseck, in Moravia or Bohemia, and during which this
question also figured. It is thus not true that the
defendant Streicher had as his basis only mediaeval
superstition, but on the contrary that he dealt with
material taken from modern legal history, using material,
the genuineness of which I cannot establish, but which I
cannot simply dispose of as incorrect and which the Tribunal
also would probably have to investigate. That is why I said
that this entire matter ought not to be touched at all. For
here it is a question merely of whether Streicher was acting
in good faith or not, and if he can say that trials of that
kind have taken place and the judges actually were not
unanimous, then one cannot say in fact that he acted against
his better knowledge. That is what is essential in this
matter. Thus, I personally would prefer to have this matter
eliminated, if the prosecution would no longer consider this
whole subject matter as part of the Indictment.THE
PRESIDENT: We will consider the application.

SIR DAVID MAXWELL FYFE: The next one on the list that I
have, my Lord, is an application by the defendant Goering
for a Major Buex; spelled "B-u-e-x" I asked Dr. Stahmer, and
he was good enough to tell me that that was the same
gentleman who was asked for as a witness by the defendant
Jodl, under the spelling of " B-u-e-c-h-s." I understand the
Tribunal has granted him as a witness to the defendant Jodl,
and Dr. Stahmer will have the opportunity of asking him the
questions then.

DR. STAHMER agree.

SIR DAVID MAXWELL FYFE: The
next is an application by the defendant von Ribbentrop. He
requests Herr Hilger as a witness, The grounds of the
application are that Dr. Horn and the defendant Ribbentrop
found that the witness Gauss, for whom he had asked, was not
able to give as much assistance as had been expected and
that they desired this witness Hilger in addition. The view
of the prosecution is that the defendant should have either
Hilger or Gauss as a witness and an interrogatory to the
other one, and we have no objection to the witness Hilger
being brought to Nuremberg for consultation.DR. SIEMERS (as
deputy for Dr. Horn, the Defence Counsel for the defendant
Ribbentrop): Actually, I had wanted to ask Sir David to
postpone this matter a little, as I have had Dr. Horn asked
to come here himself. We defence Counsel were not informed
which applications would be dealt with today. Hence Dr. Horn
is not present at the moment. But I think that, if the
Tribunal agrees, the matter can perhaps be dealt with now,
as far as I know, but I have to speak with Dr. Horn first,
at any rate, I am speaking on my own responsibility.

THE PRESIDENT: I do not know what you mean about not being
informed about these applications. I made the statement
yesterday that supplementary applications for witnesses and
documents would be taken this morning. I don't understand
your saying you didn't know what would be done. The Tribunal
has no objection to it being taken later when Dr. Horn is
here, if he comes in time.

DR. SOMERS: Yes, and may I suggest
that if Dr. Horn does not return in time, I am ready to
settle the matter for him; by then I will be in a position
to do so.

THE PRESIDENT: Very well.DR. MARX: Pardon, Mr.
President, may I make one more very brief statement?
Streicher just informs me that I should state that he will
forgo the witness Lothar Streicher. If, therefore, the
calling of this witness was considered, then I state that
the defence will withdraw application for him.

THE PRESIDENT:
Has not that been allowed - Lothar Streicher?

SIR DAVID MAXWELL FYFE: He was the witness who was not to be allowed
on condition that the prosecution agreed to strike out this
passage and we agreed to that.THE PRESIDENT: Yes.

SIR DAVID MAXWELL FYFE: The next is an application for the defendant
von Papen.

                                                    [Page 5]

THE PRESIDENT: One moment, Sir David. Has that letter about
withdrawing the statement about the witness Lothar Streicher
been read into the record?

SIR DAVID MAXWELL FYFE: I do not know if it has been read
into the record. It has been sent to the Tribunal.

THE PRESIDENT: It had better be put in as a document.

SIR DAVID MAXWELL FYFE: If your Lordship pleases. My Lord,
the next is the application for the defendant von Papen, who
requests that the witness Josten, who has been approved by
the Tribunal as a witness, be changed to an affidavit, which
counsel already has, and Dr. Kubuschok requests that Kroll
be allowed as a witness. My Lord, the position with regard
to Kroll was that the prosecution submitted that he was not
relevant but the Tribunal allowed interrogatories for Kroll
and, therefore, the prosecution accepts the decision of the
Tribunal that he is relevant. For that reason, as Dr.
Kubuschok is dropping one witness, we feel that we cannot
object to his being brought as an oral witness, since the
Tribunal has decided that his testimony is relevant.

THE PRESIDENT: Yes, and as to Josten, has the affidavit been
submitted to you?

DR. KUBUSCHOK: Yes, I have just received it with signature.
The witness Josten has appeared today and has signed the
affidavit.

THE PRESIDENT: All I am thinking of is that the prosecution
may hereafter want to have him called for cross-examination.

SIR DAVID MAXWELL FYFE: We have not seen the affidavit yet,
my Lord, I am sorry. I will look into that.

THE PRESIDENT The result of that would be that both
witnesses would have to be here.

SIR DAVID MAXWELL FYFE: I appreciate that, my Lord.

THE PRESIDENT: I was taking it that Dr. Kubuschok meant an
affidavit and not an interrogatory.

DR. KUBUSCHOK: Yes, a sworn affidavit.

SIR DAVID MAXWELL FYFE: Perhaps, my Lord, the Tribunal would
postpone a decision on this point until I have had a chance
to consider the affidavit and then I will communicate with
Dr. Kubuschok and with the Tribunal.

THE PRESIDENT: Yes, very well.

DR. KUBUSCHOK: May I, Mr. President, mention yet another
case. I had been granted the witness von Tschirschky, who is
at present in England, for oral interrogation. The witness
has written to the Tribunal that it is difficult for him to
be absent from England at the moment, and requests that his
evidence be taken in writing. I am agreeable to this and
have drafted an interrogatory which is now being submitted
to the Tribunal. This, again, would mean another witness
gone, Tschirschky, as well as Josten, so that I request
earnestly that the witness Kroll be granted as an oral
witness, since a considerable saving of time has now been
accomplished.

THE PRESIDENT: Sir David, you have no objection to that?

SIR DAVID MAXWELL FYFE: No, I have no objection to that. I
may have to consider certain cross interrogatories for the
witness, but that will not affect the position of Dr.
Tschirschky.

Next is the application by the defendant Rosenberg for a
document - Hitler's letter to Rosenberg dated 1924. This
document is in regard to Rosenberg's anti-Semitism. As far
as I know, the prosecution has none of these documents but
Dr. Thoma can explain what he wants. I have no objection to
his having these documents if they can be found.

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