Q. Was the personal reputation of Mueller so great that
A. No, bad, politically speaking a bad reputation. All the more it seems likely that he needed advice, and if an attorney at law, Mueller, had had a good political reputation, in that case, I think that the advice given to a holder of the Golden Badge of Honor would have taken a different form.
Q. We will leave that now, witness. In another case you mentioned that the so-called SD of the Security Police, which evidently assisted in the trials, in the conduct of the trials, criticized a remark by Oeschey; about when was that?
A. In the year 1942, before August, 1942, at that time I still had room 139, which in the autumn after the air raids was moved.
Q. Can you say whether it happened frequently that trials were supervised by the SD. Every session was normally supervised, was it not?
A. Rothaug personally told me that not once, but repeatedly. He said that reports by the SD were made; it was mentioned that a report was made on the conduct of the trial, on the effect of the conduct of the trial on the public, and on the impressions which was made on the public by the sentences passed. I would like to add Rothaug introduced a system of sending a report to the Stimmungsberichle, the SD authorities, and that report told them where sessions would be held and what cases would be dealt with.
Q. And this supervision by the SD referred to all practices at the trial, the judges, the prosecutor and the defendants?
A. Yes, it even referred to the audience.
Q. Witness, you mentioned the case of Therese Mueller.
A. Yes.
Q. In that case, you first of all as presiding judge of the Special Court passed a sentence for five years in the penitentiary; is that correct; what legal provisions did you apply?
A. Paragraph 5 of the Wartime Penal Code, and an application of extenutating ruling for less grave cases.
Q. Can you tell the Court what it says in Paragraph 5 of the Penal Code?
A. Paragraph 5 of the Wartime Extraordinary Penal Order comprises three sections; self-mutiliation, holding back from military service, misguiding others to stay away from military service, persuading others to undermine discipline in the armed forces, and not to adhere to discipline.
Q. I believe those are the most important provisions; which provision of the three applied here?
A. Misleading others to desert.
Q Do you know the penalties threatened in paragraph 5?
A The penalty threatened is always a death sentence. Section 2 lists various cases which can be passed for penitentiary. The death sentence, first of all, is always applicable.
MR. WOOLEYHAN: If the Court please, could we have the Reichsgesetzblatt citation for the statute to which Dr. Schubert now refers? I am in confusion as to which part it is.
DR. SCHUBERT: Yes.
Q Witness, you mentioned that in your sentence you assumed a less grave case?
A Yes.
THE PRESIDENT: One moment. If you gave the reference to the Reichsgesetzblatt to the prosecution, we would be glad to also have it on the bench. Do you have it?
DR. SCHUBERT: Will you forgive me? May it please the Court, we are concerned with the Extraordinary Wartime Penal Order in the version of 1 November 1939, Reichsgesetzblatt 1939, part 1, page 1455. If I may go to my seat for a moment, I will find the place in Document Book 2 where it is to be found.
MR. WOOLEYHAN: Dr. Schubert, never mind. It is on page 17 of Document Book 2, the statute against undermining German defensive strength.
Q Witness, you said that you assumed a case of lesser gravity. May I put it to you that in your sentence you said -- I am quoting: "Considering the extraordinary gravity of this offense, only one extenuating circumstance arises; that, as a mother she was afraid for her son's life. Only that circumstance makes it possible in such a crass case to refrain from the death sentence."
Do you remember that?
A That was the decisive reason for passing a penitentiary sentence.
Q Are you familiar with the sentence of the Supreme Reich Court?
A Yes.
Q Can you confirm that the Supreme Reich Court cancelled your sentence just because you had not passed the death sentence, although you had not assumed the case of lesser gravity?
A In that form I do not remember the contents.
Q Surely the sentence was presented to you when you were examined?
A So it was.
Q But that is not a question, sir. I won't put this to you. When you reply to me now, will you say the Supreme Reich Court cancelled your sentence because you had not expressly assumed in your verdict a case of lesser gravity, and because the Supreme Reich Court established that the fact that the mother feared for her son's life was not to be regarded as a case of lesser gravity? Have you understood me?
A I do understand you, but as far as my knowledge of the reasons of the Supreme Reich Court goes, this should not be exclusively decisive but as sufficient reason should have been given for the relation of the political motive to the human motive, and which motive had priority. That is how I understood the reasons given by the Supreme Reich Court.
Q May I put the following two sentences to you? Then it will be easier for us to reach understanding. I quote from the sentence by the Supreme Reich Court:
"The establishment of a case of lesser gravity requires, in view of the particular danger which rises from undermining the defensive strength, requires a careful examination and a clear and convincing reason which does not appear in the sentence which is being contested. The circumstance that the defendant as a mother feared for her son's life alone cannot justify the assumption of a case of lesser gravity." Is that clear?
A Yes.
Q Witness, do you know that at the second trial in which you were surely interested, new factual elements did not emerge? I believe you confirmed that today.
A I was able to confirm that on the basis of facts which I established only after the trial, for at the trial itself I was not present, not even in the audience.
Q Can you now admit to me, witness, that after the Supreme Reich Court had decided that the mother's fear for her son's life alone did not justify the assumption of a case of lesser gravity, at the second trial, however, new extenuating circumstances; that is to say, circumstances which had not been presented at the first trial, did not emerge; that under those circumstances the second court could not decide differently -- could decide in no other way than by passing the death sentence?
A I don't know whether it was attempted to find out to what extent such things occurred, generally speaking, whether in order to deter people it was necessary. In any case the reasons of the Supreme Reich Court show that a careful examination was considered necessary, and in my view everything depended on the reasons concerning the Communist attitude of the family, which brought this Communist interest to the foreground or relegated it more to the background.
That had been a problem under discussion at the first trial.
Q Witness, may I interrupt you? You arc not giving a clear reply to my question. It is like this. The Supreme Reich Court concerning the only reason of excuse which you too had stated as the only reason for an excuse; that the Supreme Reich Court rejected that reason because that excuse was not sufficient to assume a crime of lesser gravity. That is clear, isn't it, after what I read out here? Furthermore, it is like this, and will you take that into account because you did not take part at the second trial. Assume, therefore, please, that further excuses did not emerge. What sentence did have to be passed then?
A Well, the law itself threatens the death sentence. It depends, and it depends decisively on the fact whether, if the relation from mother to son under the reasons for the sentence by the Reich Supreme Court were not sufficient, whether in addition something could be ascertained, whether there was anything to be ascertained, but I don't know that. I don't know that.
Q You don't know it, and you needn't tell us anything about it.
A I was not present at the trial.
Q But I am asking you again, if no further points of view for mitigating circumstances did arise or could be brought to light, what sentences did have to be passed?
A If no further moderating influences concerning the assessment of the personality could be found, if in that direction every possibility was exhausted, in that case under the reasons given for the sentence by the Supreme Reich Court the one reason, the reason of humanity, the mother and son reason, would not have been sufficient.
Q What sentence did have to be passed then?
A Well, the sentence which was prescribed; that was the necessary consequence.
Q That is the death sentence?
A Yes, the death sentence.
Q Witness, you told us that at the second trial the judges were not the same?
A Only one associate judge was also at the second trial.
Q But two other, judges?
A Yes.
Q Can you confirm to me that it is customary if a case, after the sentence has been cancelled is sent back from the Supreme Reich Court to the court in the first instance, that the court then is composed of different judges?
A Yes, that was the general custom. That had formerly also been the custom when cases were revised.
Q I now come to the case of the ration cards. You know that case, witness, you have heard about it?
A Yes, I only know it from heresay.
Q You were not present at the trial? Did you see files on that case? Do you remember that in the place where the cards were found; that is to say, on the spot where these foreigners had found the ration cards, that on that spot whole parcels of ration cards were lying around which could only have originated from an allied plane which had thrown then down? Do you know how many of these cards were taken? Do you know that only the main defendants were sentenced to death?
A. I have said that only some of the defendants were sentenced to death.
Q. You left it open, but can you now tell us only some of the other defendants were sentenced to terms of imprisonment. Do you know witness by chance that in this case that he -
MR. WOOLEYHAN: If the Court pleases, the questions asked the witness concerning this last case have not been supplied by the witness, but by Counsel; and if the questions cannot be answered we object to the introduction of the answers by the Defense Counsel.
THE PRESIDENT: That is the rule, and if the Defense Counsel has infringed upon this rule, then the Defense Counsel must be admonished.
DR. SCHUBERT: May it please the Tribunal, I ask your forgiveness if I have infringed upon the ruling; but, I must say quite frankly that I was not aware of that. May I continue?
Q. Do you know, Witness, whether in this case with the foreigners, the prosecution was given instructions from the Reich Ministry of Justice to ask for the death penalty for all of the defendants?
A. I do not know that.
Q. I am now going to speak of the Braun case, Were you able to see the files about that case?
A. At what time?
Q. At the beginning of the trial.
A. As far as the first main trial, it was conducted by Ocschey, and I was able to see the files there -- once in connection with a motion by the defense counsel, as his deputy, I did see the files.
Q. That was at that time?
A. Not now, no.
Q. You have testified von Braun said at that time that it was time for the government to finish the war if it was not able to prevent such air raids; is that right?
A. As far as the sentence goes, yes.
Q. Do you know whether the defendant Braun made further statements in that connection at that time?
A. Yes, he made several remarks. The full meaning is the same as the meaning that I have just outlined.
Q. What year was that?
A. 1944 -- it might have been at the end of 1943.
Q. Witness, when was the end of the air raids in Nurnberg?
A. Well, we had raids in 1942, 1943, 1944, and 1945. One thing I know for certain is that I was sitting in Room 130 when I saw those files; that was, therefore, the time between 1 October 1943 and until the last summer of 1944.
Q. Thank you. Can you confirm to me, Witness, that such political statements during the time, from 1 October 1943, you were subject to advice by the Ministry of Justice?
A. In this case, the Prosecution, in paragraph 2 of the Malicious Acts Law instructed the Prosecution under that act, and had been given by the Reich Ministry of Justice; otherwise the Special Court's would not have been able to deal with this case.
Q. Do you know what else the Reich Ministry of Justice said in that instruction?
A. I do not know.
Q. Do you know, witness, whether the Reich Ministry of Justice in its instructions to the prosecution authorities expressed an opinion of doubt that the undermining of the defense strength had to be examined urgently?
MR. WOOLEYHAN: The Witness has stated he does not know the answers to this line of questions; therefore, should the Defense Counsel be allowed to lecture on that question?
THE PRESIDENT: We will overrule that particular objection. Proceed.
Q. Witness, please answer my question. Do you know that?
A No, I do not know it.
Q Witness the Court asked you a question that was in connection with the penal order against Poles. My impression is that possibly there are some misunderstandings, and I should like to clear them up by putting a question to you. Under the penal orders against Poles was it possible to sentence all foreigners or only a certain category of foreighers?
A Only Boles.
Q Thank you.
DR. SCHUBERT May it please the Tribunal, I have finished my cross examination, but I should like to use this opportunity to ask the following question: The witness is the second witness here who has been called by the Prosecution and who, at the same time, has an affidavit; an affidavit which has been present also in the documents, which so far has not been read to the court and which has not yet been accepted in evidence, The previous witness was the witness Goeringer. At that time in the case of Goeringer, he was only here on a certain group of questions and I did not give my attitude to the questions which arose from that examination; but, as the Witness ferber was asked general questions, I should like to take the liberty to ask the following question: The witness in the affidavit which I have before me, concerning the defendant Oeschey, had made a statement on a number of facts which were not discussed under direct examination here. If the Prosecution intends to present the affidavit of the Witness, that would make it necessary for me to make a motion to ask the Witness for another cross examination on these new facts which would result from the witnesses affidavit. I should like to point out -- I should like to point this out because there is no doubt this would delay the trial. I, for my part, am willing in case the witnesses affidavit should be presented today or if the witness was to be examined on the affidavit, I am prepared for my part, to cross examine the witness on these matters, and I believe, thereby the trial would be accelerated.
I would like to ask the Tribunal to give a ruling on this question.
THE PRESIDENT: Does the prosecution propose to introduce the affidavit of this witness at alater time?
MR. WOOLEYHAM: No, your Honor.
THE PRESIDENT: Does any other Defense Counsel desire to cross examine this witness?
MR: WOOLEYHAM: May I say a word in expalanation of this? There are number of affidavits of witnesses appearing in the documents books. That was done for the purpose of assurance because transportation and what have you, being what it is, we are never certain until the morning the witness is in the box that he will actually be able to testify. That is the reason the affidavit are in the documents.
BY DR. BRIEGER: (Defense Counsel for defendant Cuhorst):
Q. Witness, can you give me information as to how many persons the Oberlandesgericht area Nurnberg had?
A. I do not know the number quite exactly, but I would estimate 1,000,000.
Q. You want to say that you might make a mistake of 1,000, but not of half a million?
A. Nurnberg itself has 500,000 inhabitants, and the rest of the area had Regensburg, Bamberg, Ansbach and Straubing, and the others were rural areas.
Q. And the area of the official Court Nurnberg was the same as the area of the Oberlandesgerich Nurnberg?
A. Yes.
Q. Witness, you said recently that the Special Courts outside Nurnberg had a certain ambition to establish a record for speedy trials.
A. That's right.
Q. Can you name such courts, then?
A. That was in 1938. At that time the Special Courts of Essen and Cologne and, I think, also the Hamburg Special Court had announced in the Deutsche Justiz and the Voelkische Beobachter sentences which had been passed a very short time after the commission of the crime.
Q. Do you know of such cases occurring in Sourth Germany?
A. No.
Q. Witness, does the law on the so-called breaking of the legal peace make it necessary that the deed should have been committed for political motives?
A. I believe yes.
Q. And another thing, witness: In view of the fact that you were active in penal matters for a long time as a public prosecutor and as a judge, I must assume that you have a detailed knowledge concerning the fact of who was allowed to assist at executions and who was forced to attend executions. Therefore, I shall split up my question, and first of all I would like you to tell me who was compelled to attend executions.
Tell me whether there were any changes.
A. My knowledge is based upon the secret decision of the year 1937. I myself had to attend the execution of such a penalty. Therefore, I had to study those regualtions closely at the time. The Prosecutor who was in charge of the execution, the official who had been appointed by the Ministry to direct the execution, he was forced to attend. The head of the prison at which the offender was accommodated was also under an obligation to attend, as was the executioner, with his two assistants, and the Doctor.
MR. WOOLEYHAN: May it please the Court, the Prosecution would appreciate it if Dr. Brieger would show us and the Court just how these questions reasonably lead to some point that is relevant to the defense of his client, the defendant Cuhorst.
One more objection, if the Court please. This matter is entirely outside the scope of the direct examination.
THE PRESIDENT: Will you state, Dr. Brieger, how this line of examination is pertinent to your particular client?
DR. BRIEGER: Your Honor, I always endeavor not to put any superfluous questions but to restrict myself to questions that are material, and I am therefore only too pleased to explain the reason for my questions.
In the document book which the Prosecution has already given to the Defense there is one affidavit in which it is stated in reference to my client that he frequently, in his capacity as the president of a Special Court, had attended executions. The view is taken that he never attended such executions during his work as a judge and that he did not even have the possibility to attend such executions.
I hope that I have made it clear to the Tribunal that my question was not without reason, and if the Prosecution should reproach me by saying that these questions no longer belong to the cross-examination, I may prehaps vary that question in this way: As to how these things were handle at the Special Court in Nurnberg, because I must assume that the conditions at the Special Court in Nurnberg are definitely the subject on which the witness was called here by the Prosecution.
MR. WOOLEYHAN: May the Court please, first of all, that affidavit to which Dr. Brieger refers has not been offered in evidence. Secondly, the entire matter was not touched upon in the direct examination, and for those two reasons we think that this question or any others like it should not be asked this witness at this time.
Q Witness, may I ask you whether among those special proceedings against clergymen you remember a case of Herzer?
A Yes, that is the case.
Q Well, was this case, before it was taken to Nuremberg, had it been dealt with before another Special Court, and was it the Stuttgart Special Court?
A That is correct.
Q Witness, do you remember -- I won't say do you remember in detail, but do you remember in outline what sentence was passed at the time by the Stuttgart Special Court in this case and why the nullity plea was raised?
A I do not remember those particulars, and I do not remember them because I myself in my official capacity had nothing to do with the case as such. I only witnessed as a neighbor of Rothaug how the defense counsel of the defendant, an attorney-at-law from Stuttgart, had a tremendous clash with Rothaug in the course of which the rejection and criticism was referred to which has been expressed by the Stuttgart president.
Q Witness, do you remember quite accurately that neither in your capacity as a judge nor in your capacity as a public prosecutor you had anything to do with that case?
A I only occasionally assisted in conversations on that case. Rothaug held the position and Hofman and Pfaff were the associate judges.
Q Do you remember that in that case the Special Court of Nuremberg at the new verdict passed the sentence for custody, whereas such custody previously by the Special Court Stuttgart had been refused in view of the high age of the defendant Herzer, from which the Court concluded that for some time he would no longer constitute a sexual danger. He was 65 years of age.
A I remember that Minister Thierack himself was interested in making the sentences in Munich and Stuttgart more stringent, and that was achieved.
In one case, as far as I remember, the death sentence was passed.
Q Do you remember, witness, in what way that criticism was voiced by Thierack? Was it over the telephone, by telegram, or was criticism received any other way?
AAs far as I know these circumstances, it was a verbal statement concerning the prosecution. I believe it happened in Berlin or when Minister Thierack was here.
Q When Thierack gave his views did he in any way criticize the Special Court at Stuttgart, or was it a strong criticism which definitely expressed displeasure at the sentence which had been passed at Stuttgart?
AAs far as I know, my knowledge only goes as far as this -- it was said the trials at Munich and Stuttgart had suffered from the fact that the more lenient judgment could be explained that it had not been held jointly. Jointly that particular gravity was recognizable and the Munich and Stuttgart trial was sent to Nuremberg.
Q Apart from this case have you in the meantime remembered further cases which were first heard in Stuttgart and then in Nuremberg?
A I myself have never made the acquaintance of the Special Court of Stuttgart, and its president, Cuhorst, curious as it may sound, I never know.
Q Did you ever hear that at the Reichministry of Justice the Special Courts at Stuttgart and Dresden had the reputation for being particularly lenient.
A No. On the contrary, I believe that I can remember that at a conference in Strassbourg in 1942 -- I have already spoken of that conference -- model special courts were mentioned, the sentences of which had been published. Rothaug was always offended that the Special Court Nuremberg never appeared in a publication. The jurisdiction of the Special Court at Nuremberg is not mentioned in Deutsche Justiz, German Justice, nor in the Judges Letters nor anywhere else. But Undersecretary Freisler and the author of the Judges Letters, then later Kammergerichtsrat Schmittleitner in Strassbourg said that for example Essen, Hamm, Cologne, and Stuttgart -- Stuttgart was mentioned too -- were exemplary and that their sentences were suitable for publication.
Q Do you want to say with that that these sentences which were there described as exemplary in their reasons had been particularly carefully worked out?
A I believe that they were also concerned with the fact that the correct punishment awards had been passed which had been sanctioned by the Ministry of Justice.
Q In other words, witness, you mean to say that the punishment award, the reason for the punishment award, had been worked out with particular care.
A The impression was this, that the decisive gentlemen intended to make it clear that the jurisdiction of those Special Courts evidently had been least attacked by the Ministry, and when I say that -- when I say the word "attacked" of course I will always think of political attacks.
Q To stay with this particular subject, Witness, would you, in view of the death sentence, if it refers to a crime against war economy and if it has fifteen pages, would you, generally speaking, call that a thorough sentence or an insufficient one?
MR. WOOLEYHAN: That is a clear request for a personal opinion of the witness.
BY DR. BRIEGER:
Q May I ask you in this way, under your presidence, how many pages did death sentences run to as a rule?
A This makes me think of a statement at the continuation Penal Law Conference in Jena in 1937 or 1938. One cannot buy a painting by the square meter, and one cannot judge a sentence by pages.
Q Yes, I agree with you entirely, witness, that is purely an outward standard, and it also depends on what it says on those pages.
Witness, apart from the Schmidt-Feifel case did the Special Court of Nuremberg deal with other cases of sexual crimes where clergymen were involved, and do you know of such cases?
A In Nuremberg?
Q Yes.
A In a big way -
Q I am not concerned with that.
A Clergymen were sentenced -- Protestant clergymen, too,
Q Witness, another question. Who indicted the defendants and who saw to it that they were brought in?
A I didn't quite got that sentence.
Q Who indicted the defendants and who saw to it that they were brought into court? Was that matter for the prosecution or for the presiding judge?
A The summons and the presentation are a matter for the leaders of the prosecution.
Q If the defendants are brought in, in particular, if the defendant is led in and if there are any incidents, is it the Prosecutor who is responsible or is it the judge who is responsible?
A That needs a preliminary question, and that is that the presiding judge decides the place where the trial is to be held. If the prison and the court house are not on the same spot, then naturally the transfer from the prison to the court house is the responsibility of the prosecution authorities.
Q Witness, one last question. May I ask you how far your denazification trial has proceeded? Are you under any political burden?
A Concerning the general regulations, of course I have been at the Special Court.
Q Are you intending to take any statements or some of the statements which you made here before this court, to use any of those for your defense at your own denazification, if it should arise?
A In a denazification trial -- my denazification trial has already got as far as the date being fixed. As soon as I have been heard here as a witness my trial can come to an end. That trial itself -- I do not know whether I can get any documents from this trial.
MR. WOOLEYHAN: Objection. May it please the Court, in view of this attempt to impeach the witness' testimony I suggest that any attempt at impeachment be done by counsel for Rothaug or Oeschey when the time comes, in view of the fact that Dr. Brieger has not made at all clear, so far as the Prosecution is concerned, the relevance of his interrogation of the witness in the first place.
DR. BRIEGER: The motive for my question, I shall be pleased to explain, is that my client thinks and thinks seriously that on the basis of existing documents, judges who were with Cuhorst at the Special Court in Stuttgart had the intention to make statements against Cuhorst and shift a great deal of the responsibility on him so that they themselves in their denazification trial, which is approaching, will appear as having borne lesser responsibility. Surely the Tribunal will understand that for judges who at that period were members of the Penal Administration of Justice it is simply a question of life and death as to how they will emerge in the near future from the denazification trial.
MR. WOOLEYHAN: One final word, may it please the Court, I hope the Tribunal realizes, and I am sure it does, that there is absolutely no connection between the prosecution here and the denazification court. There has been no arrangement made and we know nothing whatever about the denazification proceedings against the witness nor will we in future make any connection.
DR. BRIEGER: May it please the Tribunal, I would not have permitted myself to ask this question if it were not of considerable importance, of decisive importance. By that I do not mean to say that definite untruths need to be spoken but it is obvious that things might be colored in this or that direction. In other words, without speaking an untruth things may be given a certain color.
THE PRESIDENT: We will take a recess of fifteen minutes at this time.
(A recess was taken.)