The verdict was supposed to be rescinded by means of an extraordinary protest. The Reich Public Prosecutor found out from the Seniority list which judge presided in such a bold court. The Presiding Judge was my client.
The witness Dr. Stuber (Tr. page ) has besides my client (Tr.page ) described the case C No. 38. He observed a carefulness and a human understanding of the court in which Cuhorst presided, an attitude which caused a father in Holland to write a letter of thanks in which he praised the humane treatment of his son by the court.
I also went to mention the case of the young Czech, case No. 44. Testimony Cuhorst, page of the protocol, affidavit Eckert C. No. 46 Document No. 36. During this trial before the Special Court, the Presiding Judge Cuhorst established the fact, contrary to the testimony of the defendant himself, that the defendant was not yet of age, but had even to be considered as juvenile according to the Penal Law. Recess of court for the purpose of getting information, regarding the correct age of the defendant and inquiries through the police broadcast in Czechoslovakia, both on the initiative of my client, saved the defendant of the penitentiary which would be the sentence pronounced on grown up people.
The legal position in cases of looting after airraids has been discussed in the case of Togni.
The case 45 - Cuhorst testimony in protocol page 8086 of the Frenchman Sarter et al. and the case 36 page 8079 of the protocol, affidavit Eckert Document Book II, Exh. C No. 36 prove how carefully the Special Court with my client as presiding judge, examined the cases of looting. A case in which death sentences were asked for the foreigners, looting at the Kain Station in Stuttgart, but which my client did not approve.
The remarkable case Souechre (No. 34) the verdict of which is con tained in Document Book Ia on page 27, Exh.
, is an instance in which, upon the strength of thorough deliberations, the death sentence asked for had been avoided and in which the Special Court had done everything in order to prevent a nullification plea by a skillful wording of the reasons. The perpetrator, a Frenchman was accused of attempted murder according to the decree against violent criminals, whilst the Special Court with Cuhorst as presiding judge only pronounced a sentence of 3 years penitentiary, inclusive the time served in the dention prison. This verdict has to be considered as a particularly lenient one, because the perpetrator carrying a weapon, broke into a bedroom of a young girl during the night and tried to knock her down with the weapon. For the benefit of the perpetrator the court assumed that he only attempted a burglary although there was also a strong suspicion of an attempted rape.
Also the verdict in the case of the young Nicaise, case 30, affidavit Dincklacker, Exh. C. No. 132 Document No. 135 does not fit into the picture, of the Special Court any my client, which was drawn by the Prosecution.
It is evident from this verdict that in the case of looting, committed by Louisa Togni, the court had to pronounce a death sentence according to the facts. In the case of Nicaise in which not looting, a crime deserving death, but only a serious burglary was assumed, the court with Cuhorst as presiding judge, was satisfied with the pronouncing of a sentence to 4 years of penitentiary, deducting the 4 months spent in pre-trial detention, although the perpetrator was a Belgian, and therefore a foreign worker and contrary to the demand of the Prosecution for a prison term of 6 years. The youth of the defendant and his lack of maturity were fully taken into account. The defendant accepted the sentence as justified and asked for the permission to remain in Germany alter the serving of the penalty. The verdict can be found by the Court in Document Book IA on page 6, Document No. 3 Exh.
1. Majcher und Strawowski, Case 4:
Cuhorst testimony p.8009 2. Milk und Margitai, Case 5:Cuhorst testimony p.8011, Affidavit Alfred Frey Dok.
B.II, Dok.Nr.40, Exh.C.Nr.50 3. Polleck, Case 8:Cuhorst testimony p.8018 4. Klausner Case 9:Cuhorst testimony p.8019 5. Oehlbach Case 10:
Cuhorst testimony p.8021 6. Schramm Case 11:
Cuhorst testimony p.8023 Affidavit Dinkelacker Supp.
II,Dok.Nr.135,Exh.C.Nr.132 7. Staudenmeier Case 12:
Cuhorst testimony p.8029 Affidavit Walter Frey Dok.
B.II,Dok.Nr.42,Exh.Mr.51 8. Wirbel Case 14:
Cuhorst testimony p.8036 Affidavit Eckert Dok.
B.II, Dok.Nr.36 Exh.C.Nr.46 9. Bruedcr Wolff und Beteiligts, Case 15:
Cuhorst testimony p.804 Affidavit Eckert Dok.
B.II,Dok.Nr.36,Exh.Nr.46 10.
Michael Schmitt Case 23:
Cuhorst testimony p.8052, Hegele testimony p.8383, Schoeck testimony p.8243, Affidavit Eckert Dok.
B.II,Dok.Nr.36,Exh.C.Nr.46, 11.
Soell Case 24:
Cuhorst testimony p.8055 Affidavit Settler Dok.
B.II,Dok.Nr.55,Exh.Nr.62, Affidavit Eckert, Dok.
P. II, Dok. Nr. 36,Exh. C. Nr. 46 12.
Stiegler Case 25:
Cuhorst testimony p.8056, Hegele testimony p.8380 13.
Eckstein Winter, Case 28:
Cuhorst testimony p.8060 Affidavit Hartner Dok.
B.II,Dok.Nr.46,Exh.C.Nr.54 14.
Esterle Case 46:
Cuhorst testimony p.8087 Affidavit Neuschwandner Dok.
B.II, Dok.Nr.49,Exh.Nr.56 THE PRESIDENT:
The next page, please.
DR. BRIEGER: I have decided no longer to claim the attention of the Tribunal, but when my colleague, Dr. Kubuschok has finished, I should like to give you the missing exhibit numbers.
CORRECTION SHEET MORNING SESSION 18 October, 1947 The following pages 10560-A to 10560-Q inclusive are to be incorporated in the transcript following page 10560.
Pleadings Cuhorst Amongst the cases concerning foreigners I would like to mention as last case for the exoneration of my client the verdict against Rihnowski and eight associates.
The defendants who were also charged with thefts and hiding of stolen goods; had amongst other things also made blackmarket deals with bread coupons for 1600 kg of bread. They were indicted under the provisions of the decree against Public Enemies and the War Economy Decree. The principal was sentenced to years of penitentiary, which was not too severe a penalty.
Final Plea CUHORST (page 15 of original) Some cases against nationals should be discussed additionally.
I select the case 51 versus BUECHE and KLINGLER case 32 versus FREY and case 55 versus Handschuh in order to challenge the non-substantiated and and unjustified assertion that my client had endeavored to have as many death sentences passed as possible. I cite these cases as examples for the numerous cases of similar nature which have been treated in my argumentation and in which the court under the presidency of CUHORST did not comply with the demand of the prosecution for a death sentence. The case 51 is treated inter alia in the affidavit ECKERT; Document Book II; Exh. C. No. 46; Document No 36; case 32 by the then defendant herself in Document Book II, Exh, G. No. 19, Doc, No. 41; and case 33 in the affidavit ROESSLER; Doc. Book II, Exh. C. No. 61, Doc. No. 54.
On 7 November 1942, my client presided over the court in case No. 61 versus SCHAEFER. Compare affidavit ROESSLER; Doc. Book II, Exh. C. No. 61, Doc. No. 54, and testimony CUHORST' record page.....In this case the court took great pains to save for the human community the perpetrator who was not yet past amendment; and avoided to pass a death sentence. Only after a nullification plea was the reasonable sentence of the Stuttgart Special Court changed to a death sentence.
(page 16 of the original)
by another court.
10560-A Case HERMANN, No. 37 (affidavit CUHORST', record page .....affidavit HARTNER; Doc.
Book II; Exh. C. No. 54; Doc, No. 46) is an example for the pains taken by my client in favor of a defendant to have a death sentence avoided. Already in October 1939, my client had been reprimanded by Minister GUERTNER in Berlin for too mild a sentence passed on one Horn for attempted rape. For reasons of too great an interest which the police displayed in RUPP; my client, in this very case, had the defendant put directly into the safe prison, since certain rumors had come from other districts that the police was not averse to alter sentences occasionally. This fact is proven by Exh. C. No. 46, Doc. No. 36, Doc. Book II, the statements of Dr. AXESDORFER, record page ....and CUHORST record page...
These sentences likewise refute the assertion that my client had done his utmost to get as many death sentences as possible. Nobody who is conversant, by his own observation with the manner in which my client passed judgment; will be able to maintain such a charge with a clear conscience.
In addition I cite here only two more cases, selected from the overwhelming evidence disproving the general assertions concerning the political activity and dependency of the Stuttgart Special Court under the presidency of my client.
As regards the case No. 56, Dr. HARTMANN, the former defendant himself has made a statement and thus has supplemented the testimony of my client, record page .... My client found out in this case that in the background of the criminal proceedings there was a woman with whom the District Leader (Kreisleiter) was entangled.
Final Plea CUHORST The Special Court in Dr. HARTMANN'S case did not lend itself to misusing the private affairs of the district leader (Kreisleiter) for forming its opinion.
In that trial, in which my client presided, and in another one presided by another judge of the same court, Dr. HARTMANN was acquitted.
10560-B Finally, in the SCHOLL case (Case No. 63), in addition to the affidavits made by ECKERT (Exh.
C No. 46), Document C No. 36) and PAYER (Exh. C No. 58, Document No. 51), and his own statements (Record Page ) I can rely on Frau SCHOLL's affidavit (Exh. C No. 21, Document No. 59). Frau SCHOLL is the wife of a man who is holding today an eminent position in public life - the first mayor of Ulm an der Donau. As it is, the witness would not have made her statements; if she had not particularly well remembered the attitude of my client towards her family.
Both her sons were indicted in 1338 before the Special Court under CUHORST. At that time Frau SCHOLL wrote to my client; thanking him for his humane attitude towards the young men. Five years later; one of the brothers SCHOLL together with his sister was brought to trial in Munich and was sentenced to death for political agitation by a court under FREISLER. Both of them were executed. Some time later the married couple SCHOLL with the one surviving daughter faced a court under CUHORST. According to the affidavit, Frau SCHOLL and her husband realized that Herr SCHOLL's offense would have had to be viewed from a far more severe legal point of view, if its whole extent had been established. At that time my client, by adopting a consciously reserved, if not harsh, attitude, was anxious to avoid going deeper into the details of the matter than was absolutely necessary. This was an attitude which sprang from the generosity in political cases attributed to my client by many witnesses.
For me the decisive factor in the SCHOLL case is that CUHORST also in the second SCHOLL trial acquitted the defendants; although in the meantime the death sentences in Munich had been passed and carried out. I think that for that reason alone the acquittals, particularly the acquittals in the second SCHOLL trial, did demand an unusual measure of courage of CUHORST. I subsequently questioned CUHORST in the witness-box as to whether the two SCHOLLS (brother and sister) had been pioneers of the democratic youth. For him such an answer was very natural, for in present publications, newspapers, books and on the occasion of festivals 10560-C Final Plea CUHORST they are generally being rated as such.
In self-restraint he resisted from giving this answer, which would have been favorable to him, and merely pointed out that the SCHOLLs represented the remaining group of the Buendische Jugend, that is to say, those who had not seceded and gone over either to the Communists or to the Hitler-Youth. Thus in my opinion it can only have been a group on a democratic basis. Dr. VOSSLER, as a rector of the University and accordingly its head, in a festival at the Munich University hall, honoured the SCHOLLs in this sense some time ago. It is of further prime importance to me that CUHORST, in spite of the many political trials against the SCHOLL family, treated their members in a confessedly noble manner.
Free of all political considerations in the sense of a dictatorship, the law was here administered by judges who based their judgment solely on legal considerations. It is fair to assume that no witness and no deponent in this trial, with his own family members as defendants knows by experience the Stuttgart Special Court so well as does Frau SCHOLL. Her sober statements arc of a persuasive eloquence which convinced.
10560-D Though there is no mention in the indictment of the fact that my client was on the Supreme Court, the prosecution did, indeed, deal with a few cases of this court.
The so-called Mannheimer case -FRITZ and ten accomplices - has been described in detail by the witness Berthold SCHWARZ, Rec. P... My client has taken notice of it. Page, ... as well. In the same manner as with regard to a condemned person the witness SCHOECK page .... In addition the case is described in the Dr. ROSSLER Affidavit, Exh. C 61. I so hot repeat the fact but merely refer to it, that SCHWARZ' statements show quite clearly the inner agitation that moved my client to turn against the increased sentence which the prosecutor was instructed to demand. SCHWARZ says: "I have never seen CUHORST as furious as that."
Any further cases are described in detail by the witness Dr. STUBER, Rec. page.... In all cases we were dealing with native Germans and with home countries. Those are all the cases which were dealt with in the Stuttgart Supreme Court under the presidency of my client and which resulted in the death sentences being imposed. I am of the opinion that even those cases, the findings and the verdicts of which are no longer in our possession, still prove, also in the memory of the witnesses that they can withstand every legal criticism, in the same way as the attitude of CHUORST in the Mannheimer case can withstand all human criticism.
No unfavorable conclusion can be drawn against my client from these verdicts of the Supreme Court with respect to the Special Court Stuttgart, just as the way legal decisions were rendered in the Supreme Court gave me the desired opportunity to prove with the cases of the foreigners NYHOFF case C and the Dutch case WALDSHUTER case C, that my client, in cases of high treason against foreigners, behaved in such a manner as the prosecution, according to counts 11 and 23 of of the indictment, would have wished him to behave. I would stress the fact again, that the Supreme Court under the presidency of my client had never imposed a sentence of death on Jews and foreigners.
By virtue of the plea of the prosecution, I now of course assume 10560-E that the two cases of the Penal Chamber mentioned will no longer be the subject for a trial, as CUHORST is no longer mentioned in connection with cases of High Treason.
The Principle of the Bench(Kollegialprinzip) Summing up I can say the following with respect to all the aforementioned cases:
The hearing of the evidence has shown, that my client has acted solely as a judge haying the same rights as his colleagues on the bench. The decisions on the guilt and punishment of a convicted person, on the acceptance or rejection of a decisive proposal are, therefore, one and all decisions of the bench, which according to German Law concerning the Constitution of the Courts, are legitimate majority decisions, to which the judges had to bow in deference, if perchance they had been outvoted.
That these decisions did not turn out to be unanimous in a great many cases in shown by Exhibit C. No......... and No............ In the whole hearing of evidence my client's vote has not been taken into consideration. The obligation to maintain the secrecy of consultations is the palladium (asylum, protector) of the practice of law. My client saw no reason to violate the same.
On the other hand the Prosecution has not been able to prove how my client voted in particular instances, and what was the nature of his complicity in the contested verdicts, perhaps. In order to convict my client of an individual guilt, it must, therefore, be established in every case how my client voted, since the so-called "Fuehrer -principle was not accepted by the courts. This fact was not established. Thus the Prosecution has only been able to prove in the cases which it adduced, how the total court decided, without regard as to whether my client voted for or against the decision. Therefore, no individual acts of my client have been proven, for which he would have to bear individual responsibility as judge.
Also with reference to the Stuttgart Special Court it has been suggested that it had been a Tribunal especially for severe political 10560-F cases.
Instead of long doctrinary explications I have offered the verdicts, Exh. 21-41; they represent all the remaining cases of DINKELACKER's affidavit, cases comprising entire series of proceedings and giving - without any further selection - a general insight of the actual taks of this Special Court. These cases depict the everyday routine of this Court, and this Court, and this picture is quite different from the one intended by the Prosecution.
The declarations of Dr. KUESTNER, record page......, the exhibits C 60 and 64 and also the personnel-file Exh. 406 discloses that my client has been appointed President of the Special Court in Stuttgart by a decision of the President of the District Court of Appeal on the September 1937. He remained in this office without the necessity of a new election or a special appointment until he was discharged in the summer of 1944. The Ministerial decree has been submitted by the Prosecution itself with Exh. 406. My client has neither striven for nor taken on this new task in 1937 for an ignoble reasons. The prosecution has not been able to prove that my client has conducted this office of a Judge in any unlawful manner. Unsubstantiated assertions could not be upheld in face of the actual facts offered by us. In particular, no witness could maintain a single case where my client's conduct has brought about with intent, a disadvantage to any one defendant. Not a single case of false summing up of facts or of false application of the law could be brought forth. Unsuccessful has been the attempt to charge my client with having eserted pressure upon his fellow-judges. The WAGNER case has been refuted by WAGNER's own declarations in Exh. C 60.
It has been proved by numerous affidavits and the statements AZESD0RFER transcript page ....... that my client as a judge opposed all influences by forces foreign to justice. Thus it becomes even more remarkable that it has been attempted to prove by the witness LADOSHOWSKI that my client has tried to deliver acquitted persons to the police. It is possible to check the statements of this witness with regard to time on the basis of the documents submitted. During the 10560-G period mentioned by this witness he could observe trials under CUHORST only from the end of January until the middle of March, and from the end of March until the beginning of June 1943.
During that period three death sentences were passed in Stuttgart under CUHORST. Never has the police in Wuerttemberg altered sentences of courts, and on the basis of all facts we have proved, my client would have been the last to approve such methods or to use such methods himself. I refer further to the statement AZESDORFER transcript page.... My client has further been charged in a general way with having curtailed the rights of the defense. I have refuted this. I refer in this connection to the statements of the witness KUESTNER, transcript, page ..... and the affidavits C. 60 and 64. The witness SCHOECK, as an experienced counsel for the defense, has stated (transcript, page......) that my client had always an open ear for a good final statement. This fact is also proved by the affidavit DIETTERLEN, Exhibit C......Document....... It has been proved that the selection of obligatory defense counsels took place in accordance with the law, that CUHORST preferred to appoint specialists in economic cases and not inexperienced assistant judges (Referendare). Thus the witnesses, assistant judges Eberhard SCHWARZ end LEDUSCHOWSKI were just on-lookers at the Special Court Stuttgart. This witness has also confirmed that these principles were also applied to foreigners. If the Prosecution accused my client in this connection that he rushed the proceedings, this is a reproach which every judge in penal cases would have to put up with who does not want to become the playing ball of the parties.
Significant for the attitude of my client was his fight against the tendency to pass too severe sentences. This has been proved by the documents of both parties and even by the witnesses for the Prosecution SCHWARZ, BERTHOLD and RIMELIN. The most positive documents are the decree of July 1944, Exhibit 178, NG 676 and the correspondence about the removal of my client fr*m his office as a judge in Exhibit 406, 10560-H which document is at present complete with the exception of one sheet which has been removed.
The resistance of my client against the tendency to pass too severe sentences cost my client his position as a judge. his is the reason why my client to-day does not stand before you as a civilian internee and judge, but as an officer of the German Army and prisoner of war.
The fact that my client became disagreeable to the NSDAP because of his unrelenting opposition to corruption of any kind is shown by the attempt to expel him from the Party on the occasion of the Case WOLFF. The sentence of the Party Court of 1943 was at first excluded from the personnel files by the Office of the Prosecution, and later on, it has been resubmitted in the cross-examination.
How my client acted as a judge has been established with sufficient certainty. We do not have to hide his fights and conflicts. The reason for these incidents are shown by the evidence submitted. The Prosecution could not shake any of my evidence with statements of a vague nature, also here we find generalities in opposition to facts. Even if the picture of my client shows human weaknesses he is a human being like others with shortcomings, but he is not conscious of any crime.
Concerning the trial brief of 16 July 1947, I should like to point out that I, as judge-counsel for the defense, refer to the uncommonly hard living conditions in Germany during the war as an accessory circumstance only, as they were bound to be hard due to the hermetical encirclement of Germany, regardless whether - theoretically speaking - it was an aggressive or defensive war.
My first consideration is rather the fact that in this war millions of Germans willingly gave their lives for their father land in good faith, and that the country had to adapt itself to the heroic spirit of the fighting forces, just like other countries did, in order to have any chance of survival. That meant harshness towards others as well 10560-I as towards oneself.
As in every war, the concerns of the nations took first place, and every individual had to subordinate himself readily. That is simply the spirit of patriotism, which did not need to be bolstered up by a projection or foundation of National Socialism.
The economic angle - that is the difficult economic living conditions - only entered the picture when some war black marketeer threatened this basis of existence. In discussing this subject it is of no consequence whether Hitler caused this war as an aggressor.
It docs not alter the fact in the slightest that millions of people barely escaped starvation, and, justified by law, angrily faced people like the big black market operator WOLFF, for instance, who, protected by the Party, was able to live in luxury.
The more objectively one views the matter, the less one is convinced by the abstract statements of the prosecution in that respect.
10560-J 18 Oct.
47-1c (MW FINAL PLEA CUHORST As a precautionary measure, I should finally like to stress that the judges had nothing to do with the preparations for aggressive warfare although I should not feel inclined to assume this charge from reading these pages.
The Prosecution in their trial brief dated 16 July 1947 discussed the position of the defendants, that is, in the case of my client therefore the position of the judge. The position of a judge in Germany could not at any time be compared with that of an officer or administrative official.
Officers and administrative officials are bound by orders or directives, the judge is only bound by the law. He would act against his duties if he obeyed orders or directives. It has been proved by testimonies of experts and various documents, that a judge in Germany was expressly forbidden to examine the laws for their contents; he had to apply them unconditionally.
Your Honors: Every judge is the product of his education and the legal circle of which he is a member. The German judge has also a tradition, of which he is proud and to which he adheres. This was the tradition of complete integrity, independence, but also absolute obligation towards the law. In the opinion of others, it may be considered right or wrong, but at any rate, those are the dogmas which the judges, who are being tried here, were taught at their universities or law-courts between 1890 and 1933.
I decidedly oppose the attempt made by the Prosecution, to examine the judges on trial hero merely from the angle of Control Council Law No. 10.
I do not understand the public prosecution for solely admitting the penal law of the Weimar period 1919-1933, since the law of before 1919 and after 1933 is even today still in force to its full extent: as to penal law there are many supplementary laws to the Penal Code in force after 1933, like the war economy decree and the decree protectin the rationing of consumer goods.
10560-K The so-called charges produced against my client cannot be dealt with by ignoring the German penal law in force at the time in question.
That neither the Moscow Declaration nor the London Convention were to refer to judges is apparent from article I of the Control Council Law No. 10 which states that the agreements mentioned are directed against atrocities and the chief war criminals. During the trial of 4 January 1947 nobody alleged that judges were chief war criminals and sentences of punishment, atrocities. It is not proved that the Control Council Law No. 10 was to go beyond the limits of both the agreements. From article 4 it can even be gathered that the law is to apply only to responsible government officials, to which judges certainly do not belong. In part I of the indictment the public prosecution has made clear distinction between officials of administration and independent judges and therefore it is supposed that this distinction is also made when giving legal judgment. What is more it would be only a judge who would not be able to refer to orders and directives, and thus be the only group to be deprived of extenuating circumstances according to article 4. It is to be supposed that such an effect was not intended by the Control Council Law No. 10.
The fact that my client in particular defended his independence, has been clearly stated; and oven the witness for the prosecution, RIMELIN, has said that CUHORST fought for his independence. Exhibit page ...... If the prosecution thinks that laws which have been partially repealed can be compared to orders, then, though there may be some foundation to this supposition, yet it is too bold to be correct. In any case it is a fact that my client cannot and will not, in his capacity as a judge, refer back to orders. He could only be justly accused of having abused his office and mishandled his position as a judge if he had acted in a manner dependent on the administration of justice authorities - only then could he have offended against the law.
It becomes increasingly evident that Law No. 10 of the Control 10560-L Council has abandoned the general principle of "nulla poena sine lege". Whatever attitude one may adopt in this matter, one thing is certain in this judges' trial, namely that the application of Control Council Law No. 10 would not only punish a crime which was previously not liable to punishment, but an act would be made punishable which formerly was expressly laid down as not punishable, by reason of the general basic principles evolved for the use of the judge.
The function of a judge for penal cases consists on occasions in establishing a criminal case for the state in order to restrict a wrong which may be done to the person breaking the law by the executive authorities- In all civilized countries tho judge of criminal cases is protected in carrying out this function. For centuries there have existed either explicit laws or decisions creating a precedent in this particular position of the judge. In this connection too I can only say: "jura, novit curia". Even if the principle of "nulla poena sine logo" is not applied, tho Control Council Law No. 10 cannot dispense with tho principle that a judge enjoys a special position in penal law. One should follow this line of thought right through and remember that even today there still are and always will be varying conceptions of justice, one will appreciate that tho steps taken by the Prosecution are inadmissible.
All this does not, of course, preclude one from calling a judge to account for wilful miscarriage of justice and from ascertaining if this judge is guilty of wilful miscarriage of justice in connection with certain crimes. Such wilful miscarriage of justice may also include in its wider interpretation tho handing over by a judge on his own initiative of defendants to non-judicial authorities. However, as regards my client, I need not enter into this possibility. Cases of wilful miscarriage of justice have not been proved nor were transfers oven assorted in any substantiated speech.
The Prosecution relies on generalities and attempts to incorporate these in one law which is neither intended for judges nor applicable to any extent to them.
10560-M The fact remains that the Control Council Law No. 10 cannot properly be applied to judges.
In particular, the trial brief overlooked the fact that the sentences of the special courts are expressly legalized by laws of the states in the US Zone, Exhibit C No. 124, doc. No. 127; in these identical laws of the three states the sentences themselves are upheld but the punishment may, in case of need, be mitigated by the bench.
Law No. 10 of the Control Council is not intended for an examination of valid judgments of the past, such propositions are not within the scope of Law No. 10 of the Control Council, quite apart from the fact that for other reasons this law cannot apply to judges.
The construction of the prosecuting authority must therefore prove inefficacious in this trial, the equalization of judge and officer not serving to remove legal difficulties unless the Prosecution here purposes fully to disavow the traditional conception of a judge and, according to Part I of the indictment, this does not seem to be the case.
Even had the Prosecution been successful in proving the objective facts of the case as asserted by it, in part only, there has been brought forward no evidence, nor can there be any evidence for the equally essential question whether my client has committed punishable offense with knowledge and intent.
To find my client guilty it had to be established with absolute certainty that he knew the judicial actions in which he had a share to be criminal offenses, so that he, therefore, intended and committed these crimes.
The entire evidence as far as it concerned judicial acts, with reference to my client, gave the following result:
All the verdicts in which he participated complied in every respect with the theory of law and with the prejudicial decisions of the highest courts, above all of the Supreme Court of the Reich.
10560-N The method of interpreting the laws is based on a tradition practiced by all Germans courts for generations.
The Special Court at Stuttgart gave the same decisions as all the other German courts. The further development of the jurisdiction remained strictly limited, and had no effect on the traditional principles of penal jurisdiction. As has been done in the case of other judges accused here, we have submitted a large number of relevant rulings given by the Reich Supreme Court, text-books and commentaries, which correspond to the issues of the penal cases being dealt with here.
If a court bases its decisions on law, legal doctrine and legal practice, can any one of the judges have the intention, in that case, of acting against the law? Must he assume that doctine and the prevailing jurisdiction are criminal? Can he have an consciousness at all of doing wrong; if he adheres to a conception of long standing and in which he has been brought up? There is only one answer to this: no. It is inconceivable and impossible. In giving this answer I have again touched on the fundamental question of this trial; that of the responsibility of judges.
Since the prosecution refrained from submitting any evidence at all on Count IV, I can express myself briefly. The fact that the so-called active membership of the SS is not the official membership of the SS required according to the IMT-judgement, is evident from that paragraph alone of the active -member's book; submitted by me as Exhibit C. No... Doc. C. No......The prosecuting authority should at least have submitted and proved which rank my client had in the SS, if he should have been an official member of this organization. Besides, it is the rule with all USA courts and Spruchkammer that sponsors (Foerdernde Mitglieder) should not be regarded as belonging to the SS.
With this proof I do not need to deal with the fact that no evidence has been produced that my client was involved in committing crimes by his supposed membership of the official SS. I am making the foregoing statement as a precaution for I have not found a reference in 10560-0 the Final Plea of the Prosecution.
Under Count 8 of the verdict of the International Military Tribunal, it has been stated in the concluding provisions regarding the guilt of the political leadercorps of the NSDaP that the decision of the Court concerning Staff Organization includes only those National Socialist section leaders who had been chiefs of offices at the staff of the Reich, Regional - and County administration. According to the Sense of the context these were, moreover, the heads of important main offices.
In order to be able to maintain Count IV against my client, the prosecuting authority had to prove that my client, in his capacity as National Socialist section leader, had been in charge of a staff office. But it was we, although according to the proceedings we were not at all bound to do it, who proved by the affidavits of WALDMANN and SAUMERT, Exh. C. No. 3, Doc. No. 63 and Exh. C. No. 133, Doc. No. 136, that my client had not been in charge of an office of the NSDAP and had neither the right to sign nor to give instructions. It has been proved by the statement of my client as well as by his personal record (Exh. No. 406, Doc No.) that he had only the right to speak as regional speaker, occupied the lowest rank as political leader, and - as proved by the witness KUESTNER, protocol page - was not prominent at all.
If my client had been in charge of an important Gau office it would of course have been clearly shown in the personal records as well as in the judgment of the Party Court, which would have enabled the Prosecution without any difficulty to furnish the evidence.
Your Honors. This concludes my statement. Before closing, however, I would like to express my full confidence in this Court, that it will carefully weight the assertions advanced by both sides on the strength of the evidence submitted in the case of CUHORST and will arrive at a just sentee.
10560-P CERTIFICATE OF TRANSLATION 17 October 1947 We, MONICA WELLWOOD and SIDNEY L. GATES, hereby certify that we are duly appointed translators for the German and English languages and that the above is a true and correct translation of the Final Plea Cuhorst, pages 46 - 55.