Q Do you know from your own knowledge that Diessem did not any more appear in court in the future after that?
A I cannot say whether after that Diessem still appeared in court as a counsel. I only know that Glueck at that time forbade him to be a defense counsel before the special court or in the penal senate.
Q Do you not know that if this prohibition was issued that it was soon again withdrawn?
A I do not know that.
MR. WOOLEYHAN: May it please the Court, I object to that question on the ground that it constitutes argument with the witness in an attempt to elicit an answer which the witness has already stated that he doesn't know.
THE PRESIDENT: That objection will be sustained on the ground stated.
BY DR. MANDRY:
Q The presiding judge Cuhorst used the indictment as a basis, you said?
A Yes.
Q And that this was due to inadequate knowledge of the files on the part of the presiding judge -- that is how I understood you to say -- and that this was balanced by the exact knowledge of the contents of the files which the person in charge of the case had -the berichterstatter -- is that correct?
A It is correct that the person in charge of the case made efforts to balance out this weakness of the presiding judge. However, it was hardly possible for him to put so many questions that the lack was entirely balanced out.
Q Was it not the duty of the defense counsel to try to do away with this lack -- whether to have it removed?
A That is correct, and the defense counsel also put questions or had requested to have the presiding judge put questions to the defendant.
However, it happened frequently that Cuhorst did not put such questions that he was asked to put.
Q Did that happen frequently and regularly or in any case was a corresponding remark of the defense counsel put in the transcript?
A I don't believe so. In any case, from my own knowledge, I cannot say that a defense counsel made the application to have such an incident entered into the record. I am basing my statement on the simple fact that the defense counsels here too wanted to avoid any opposition with the presiding judge Cuhorst because they feared unpleasantness.
Q Did that not mean a violation of their duty on the part of the defense counsel?
A That is correct. The defense counsels should have the courage.
Q I have another question regarding the refusal to accept evidence. Did the admission of evidence or the refusal to accept it, was it up to the free decision of the court? Thus with regard to the question of discretion -- was it that if a court considered an application for evidence as objectionable, was it not free to just reject or to have something accepted into evidence?
A The legal situation changed in the course of time in this respect. I believe only in 1942 every court was granted the right to refuse to accept evidence if it deemed it necessary in order to ascertain the truth; while formerly, it had been as follows: an application to accept something in evidence to a court from which there was no appeal from a sentence, was allowed to be rejected only in certain cases. The special court was such a court that the sentence pronounced by it acquired legal force the moment it was pronounced, and it was in this that the force which the law of this court -- which the law had intended to give it existed -- that there was no appeal and no revision, but only an extended retrial of the case. But it is natural that an application to accept in evidence for reasons of decency alone was not allowed to be refused if it was in any way possible that the examination of the witness concerned would contribute to the finding of the truth, if even in a small point.
This right to refuse request to accept something in evidence was up to the discretion of the court, to be sure. However, this discretion should net have been misused.
Q I would like to repeat my question. Even if there was a misuse of the discretion here, should not a conscientious defense counsel here too see to it that his statements are entered into the record?
A That is correct, but likewise I have to repeat my previous statement that the defense counsels, with few exceptions, did not dare to object to it here.
Q Can you describe the role played by the Berichterstatter? Can you describe in more detail to the court, to what extent, according to German legal usage -- court usage -- the Berichterstatter had to know the files and documents; what extent he was the third associate judge; to what extent he had to know them formerly and then during the practice of the special court trials?
A The Berichterstatter in a criminal case had the task, in addition to the presiding judge, to get an exact knowledge of the information in the files and the discussion after the evidence had been'received. In general, he had to describe the case. The third associate judge -- what I want to add -- in general, he also had the duty to write the written sentence. The sentence was then signed by the presiding judge and the two associate judges; but the opinion on which the sentence was based and the writing of the sentence, that was the duty of the Berichterstatter. The second associate judge of the court as a rule did not know what was in the files, but only found out on the basis of the indictment and during the trial the actual facts in the case
Q Fitness, I have the impression that the Court wants to make an objection.
THE PRESIDENT: I want to admonish defense counsel that they must stand during the conducting of an examination.
BY DR. MANDRY:
Q The prosecution, if I understood correctly, discussed an indictment which was sworn to, or part of the documents which had been sworn to. At the special court Stuttgart were efforts made, if possible, to have an immediate submission of evidence by examining the witnesses or was there not another practice?
MR. WOOLEYHAN: May it please the Court, I am not sure wherein the misunderstanding lies, but I distinctly heard over the headphone that the prosecution had talked about sworn indictments. It is an obvious fact that indictments are not sworn to. Can we have some clarification of that on the part of the defense counsel?
THE PRESIDENT: Did defense counsel understand the statement of the prosecution?
DR. MANDRY: Yes, I did.
THE PRESIDENT: Do you desire to make answer to it?
BY DR. MANDRY:
Q These statements which were made in connection with the interrogation of police officials, or the examination, or judges who had already examined witnesses. Were those exceptional? Was that an unusual method of conducting a trial of this type?
A. Certainly it did not happen very often; most of the witnesses and defendants still maintained what they had said at first, before.
Q. I am now going over to the individual cases which you had discussed. Who was the Berichterstatter in this Schmidt case?
A. I don't remember any more.
Q. Where was that trial held?
A. It was held in Stuttgart. I remember that Herr Stuber was associate judge in that case.
Q. I thank you. Do you know who the judge and prosecutor was in the Heinz Niemtz case?
A. I don't know.
Q. How about the Berichterstatter?
A. I don't remember, but that is evident from the sentences which I had in front of me, which is now in the hands of the prosecution.
Q. Do you know who the prosecutor was -- I withdraw the question. In the case of the young Pole, Pitra, who was the Berichterstatter?
A. I cannot remember that; I do not remember the details of the case.
Q. Does the Chief of Counsel here also have this sentence?
A. That is possible. I believe that in that case possibly Herr Wendling made a clemancy plea for this Pole. It is quite conceivable that I had something to do with the matter, but I don't believe so. In any case, it was a case in which it was against a human feelings that the young Pole should be executed because an elderly German woman had seduced him.
Q. Do you know what the indictment of the prosecution said?
A. I don't know that.
Q. In this connection you made the remark during the trials against foreigners, Poles, Cuhorst was supposed to have made the remark that foreigners, if they acted contrary to German laws, they would have to receive especially severe penalties. Toward whom was this remark made and what time?
A. Remarks of that type were in the verdicts themselves, in the opinion on which the verdict was based.
Q. Do you know that in the case Pitra this was especially done?
A. I don't remember it in special connection with that case, but I read a number of other sentences against foreigners and which this Sentence was used as a part of the opinion, and it was a very decisive reason on which the verdict was based.
Q. Do I understand you correctly that you say that sentences of the Special Court, Stuttgart, it said because the convicted, a defendant, is a foreigner, therefore, he will be punished more severely or especially severely?
A. Yes, that was the meaning of these statements.
Q. Please, if you cannot do so today, perhaps by looking at the verdicts which the Prosecution has, those that are with the Chief of Counsel, you can name cases in which that was used.
A. I don't know which of the verdicts the Prosecution has here. My memory is based upon the memory I have of sentences which I saw when I was with the general prosecutor's office in Stuttgart.
Q. We cannot take any stated opinion on this without your mentioning these sentences by name, by the name of the case.
Can you -
MR. WOOLEYHAN: May the Court please, I object to this haranguing and arguing with the witness on questions that he has stated he doesn't know. I furthermore object to the attitude at the present moment being taken toward the witness by defense counsel.
THE PRESIDENT: The objection will be sustained; and the witness will certainly not be required to refer to cases that should be the problem of the examiner.
BY DR. MANDRY:
Q. In the jurisdiction of the Second Penal Senate, the District Court of Appeals, Stuttgart, what is the difference especially in the field of malicious acts, undermining of defense potential.
A. Malicious acts crimes were not before the Penal Senate, were not tried before the Penal Senate; it was exclusively the field of the Special Court; thus we can only be concerned how the cases in which there was an undermining of military fighting potential, how they were handled.
In this regard I can say that the sentences of the Second Penal Senate, in general, were rather lenient. I myself appeared before the Second Penal Senate; I preferred to appear there rather than at the First Penal Senate because the method of conducting the trial by the presiding judge Kiefer, because the method was much more pleasant and I liked it much better than the other; I liked it much better. Presiding Judge Kiefer prepared the trial very carefully and conducted it as a very conscientious judge and in a conscientious manner.
THE PRESIDENT: Defense Counsel is admonished that we are not interested in other presiding judges of other senates.
DR. MANDRY: I received the affidavit of the witness only this morning, and have not yet had an opportunity to discuss it with my client. Therefore, I would like before I continue the cross examination of the witness, I would like to have the opportunity to discuss this affidavit with my client.
MR. WOOLEYHAN: May it please the Court, the Prosecution has a brief word on this matter. The Prosecution objects to any further dealy and regards the request as dilatory. The Prosecution has abided by all the rules imposed upon us to distribute these documents within the time limit set. The fact that Defense Counsel is not prepared to go further is certainly not our fault, and we object to any delay.
THE PRESIDENT: We recall that when that question was raised at the opening of the Court this morning, Dr. Brieger, representing the defendant Cuhorst, consented to go ahead with the examination without loss of time; and inasmuch as there was an hour and a quarter at the noon hour, when this might have been gone into, we can't see that we are unfair in requiring the cross examination to proceed.
DR. MANDRY: Then I shall make an attempt to make the affidavit now the subject of cross examination.
BY DR. MANDRY:
Q. In your affidavit you say that the prosecution complained about the short time which elapsed before the date of the opening of the trial was set.
A. That is correct. The opening dates, the time before the opening date was set was frequently so short that we could not take any special steps to go into the matter. I have had a case like that myself in which on Saturday, around noon, the day of the opening trial was set for Monday morning, and even I did not know about that myself, even though I was a prosecutor in this case. The result was that I did not appear in the court room on time; the case opened at eight o'clock in the morning; a prosecutor had to be called into the session who had absolutely no idea about the case, and when I appeared in court later on he was informed that I had set the date for eight o'clock in the morning. I then took over the case and completed it as best I could. I complained about it to Mr. Cuhorst that the time was so short that I could not even be notified of when the opening date had been set.
Q. Did you also inform Cuhorst's supervisory authorities about it?
A. I did not do that for I told that to him personally, to Cuhorst personally. I also know that the office of the prosecution often complained to me that they could not get around to the calling of the witnesses because of the brief period. I did not tell this to Cuhorst myself because that wasn't in my task but I told it to the Division Chief and then I represented the point of view that the setting of the dates of the opening of the trial should take into consideration that more attention be paid to the position of the prosecution which actually was not in a position to cope with the many courts and *et witnesses in that time. I often had discussed with the office and brought their attention to this matter.
Q. Was this not by reason of the fact the number of cases were very large?
A. Only in part. It was often due to the fact that Cuhorst often lot a long time elapse before be again set a new series of trials but then unfortunately everything had to go in a terrible hurry -- head over heels, also it is true that I always regretted that Cuhorst reserved the right to himself when he went on vacations, in spite of that, to set the opening date of the trial to keep that in his own hands because he did not want that his deputy, while he was on vacation to set opening dates of trials. Be it for the date when he was on vacation or be it for the later time and on which he, himself, would have to comply with when he returned.
7. Did other Presiding Judges not also follow this procedure?
A. I cannot say that. I don't know but I know that with Cuhorst this took an especially crass form and I could not understand suck a way of handling matters.
Q. Did he spend a long time on his vacation? About how long did he go away at a time?
A. That could be for weeks.
Q. You said before that the office could hardly keep up with the sending out of summons, Did Cuhorst have any influence in this or was that the duty of the office-only the duty of the office?
A. Of course, that was the duty of the executive office, but as the time elapsed before the opening of the trial was so short that the handling of the summons had to be carried on very quickly in order to make the trials possible. Altogether the fault probably lies with the person who allowed such a short time and set the opening dates in such a short time. In my opinion it would have been easily possible to make a more even distribution of trials.
Q. The Oberlandesgericht President who had the official supervision, was he not given the possibility at least that the Public Prosecutor inform him and discuss the matter with him and do away with some of these faults?
A. One could have expected that.
Q. Did you ever hear about suck complaints to the Oberlandesgericht President?
A. I don't know anything about that.
Q. I thought those wore the authorities that are competent for it.
A. That's correct but nobody was there who liked to complain about Cuhorst.
Q. In your affidavit you talked about the activities on trips of the Special Court.
Did these trips take place at the place of the crime? Is that an innovation introduced by Cuhorst or was it an institution which existed already during tho time of his predecessors?
A. As far as I know rector Flachsland occasionally also wont to outlying districts but those trips actively under the Presiding Judgeship of Cuhorst increased to a certain extend and in a way I personally considered to be exaggerated frequently. In my opinion it would have been enough if some cases had been tried together at a larger locality and that they be tried there but the trips were made to the individual places so that an extra-ordinary amount of time was lost on the way and some of the trials had to be conducted in a very quick manner because a further trip to another place was planned. From these points of view I considered this activity on trips in no way of service to the matter. I was under the impression that it was a personal love of Cuhorst's to take such trips.
Q. Was this not holding a trial at the place of the crime in accordance with an express directive and was it not desirable in many cases?
A. Actually it is true that the Reich Ministry of Justice was in favor of such a trial at the place of the crime and that it promoted it but I believed that the extent of this activity on troops -- these trials on trips of the Social Courts Stuttgart was too excessive and it was the viewpoint of the case to hold a trial where the crime was committed because one had to be in the surroundings of the defendant. I rather was under tho impression that it was personal reasons that there were so many trips undertaken by the Special Court.
Q. Was this trip actually not encouraged by the Ministry of Justice or the Oberlandesgericht President? For example, furnishing an automobile to these Special Courts.
A. That's correct. However, it happened also that a large number of unnecessary matters were done. I remember a case where the witnesses had already come to Stuttgart and also the defendant and then in spite of that it was decreed that to case should be tried in Hechingen or in Sigmaringen.
Q. Can't you state which these case are so that we can examine then?
A. I do not remember individual cases. I only think that, for instance, in the Case Plattmann it was like that but I cannot be mistaken -- it was a case of a clergyman which was tried. The first half of which was tried in Sigmaringen and the second half in the Black Forest, I believe at Todtnach near the Feldberg.
Q. Do you not remember any technical reasons for this?
A. In my opinion it was not necessary to go to Todtnach on account of this one case. The case could very well have been tried altogether in Stuttgart or at least in Sigmaringen. I have to remind you that the Second Penal. Senate made these trips very seldom. Anyway, it travelled much loss than the First Penal Senate.
Q. In reference to the trip activities is it only a question of the Penal Senate or is it also a question of tho Special Court which had a much larger area, as you described it to us?
A. In the first place we are concerned with the Special Court but also with, the Penal Senate, also the Second Penal Senate, which of course, occasionally went to the Saar territory or into the Palatinate but the trip activities were not so exaggerated as in the case of the Special Court.
I personally was present at such trips frequently but later on I mostly had to suffer for this by having a large amount of work which had remained during that time in my office that I had to work on afterwards. These trips, it was also those trips which gave the Special Court its feared name and reputation.
Q. Was not the Special Court in particular during wartime -- was it not the purpose of being a deterring influence on its penalties and in an especially effective manner of its conduct of tho trials toward the general public? Was not that a desired method of conducting a trial which the Justice Ministry desired and requested?
A. That's correct, that the Reich Ministry of Justice wanted to have a deterring influence asserted but I do not believe that it was desirable to the Reich Ministry of Justice to exercise a deterrent through this method of conducting a trial.
Q. This morning you motioned several cases in which the prosecution if I remember correctly, asked for death sentences and in which the Court under Cuhorst in accordance with the indictment and the pleas of the prosecution pronounced a death sentence and where afterwar is the pardoning authorities changed these death sentences. Were they not pronounced in particular for purposes of acting as a deterrent and did not for that reason the prosecution ask for them?
A. I do not know what directive the prosecution had received on the case. It's true that the prosecution asked for the death, penalty but that does not mean that the court had to pronounce a death sentence. The plea of the prosecution is , as a rule, within its proper meaning stricter and the court has to pronounce its verdict and is responsible for it.
Q. Does not the prosecution also according to the result of the evidence and the conclusions drawn at the trial find its plea from -- form its plea and is it not here subject to the same impression of the course of the trial and the result of the trial as the court?
A. That's correct. The prosecution also in general has to make its plea in accordance -- to find it in accordance with the proceedings of the trial but at the same time it is subject to the directives which often are independent of the personal impressions of the prosecutor. That was the case in the Alp case.
Q. Does a prosecutor in a trial session when at the conclusion of that trial and after the evidence has been received, if he wanted to make a plea different than the one which he had been told to make, would he have to have a discussion about it? Was that the practice in Stuttgart?
A. In general if during the trial a case appeared to warrant a milder punishment he could deviate from his prepared plea but there were also exceptions where especially in serious cases a directive was issued. If the prosecutor wanted to deviate from t is directive he had to discuss this with the Division Chief or even with the General Public Prosecutor.
Q. In your affidavit you stated that the Defendant Cuhorst had -- in a trial which because of the seriousness of the crime or the circumstances of the case aroused a great deal of excitement and interest he a acted as the presiding judge in the trial?
AAs far as I remember that's correct. In the most serious cases he reserved himself because he believed he as Presiding Judge of the Special Court had to do that himself.
Q Do you know whether in 1938 in the report in the newspaper the names of the judges in the trials are mentioned in the press dispatches?
AAs far as I know the names of the presiding judge -- I believe the name of Cuhorst was mentioned in the press dispatches until war-time -- for a long time even during war these press dispatches were later on sometimes written in a briefer form but I am of the impression that the name of the Senate President Cuhorst -- that with this name of the Presiding Judge of the Penal Senate Cuhorst certain propaganda was made with the use of this name and through the combination with these series of cases, as you have to say, the reputation, the feared reputation of Cuhorst was based on that in Wurrttemberg.
Q Was it a fact that his personal achievement was through his concerning himself with all serious and significant cases?
A I believe that in addition --- that his Party activities took place and a lot of his time -- in addition to his Party activities the cases in the Special Court and the Penal Senate took up a lot of his time; that may have been a reason why he conducted the trials mainly on the basis of the indictment but in my opinion it would have been his task if his Party work was taken up to such an extent to the large number of cases that he should distribute the cases better.
Q Did you know that Cuhorst twice during the war fell sick so that he had to interrupt his work or do you knew anything about that?
A I believe that I remember that Cuhorst was once sick but I don't remember any details.
Q In your affidavit you mentioned that in numerous decrees issued by the Reich Ministry of Justice there was an insistence upon stricter penalties -- more severe penalties? Do you know how Cuhorst felt about the influence from Berlin -- if you talked to him? Do you know anything about that as to whether and how he regarded the verdicts from -- how his verdicts were received in Berlin?
A I know that the Reich Ministry of Justice was not satisfied with some of the sentences pronounced in Stuttgart and that occasionally a list of cases was compiled in Berlin which, in the opinion of the Reich Ministry of Justice in which a higher penalty -- a more severe penalty should have been issued. It is true that Cuhorst was opposed to some of the decrees which asked for a severe penalty and that he followed a more lenient line than was desired by the Ministry of Justice. Above all this concerned violations against the Malicious Acts Law and contact with prisoners of war sometimes. Also undermining of the military fighting potential and partly case of war economic crimes.
Q These crimes and delicts of such a nature where the industry of Justice repeatedly objection to Cuhorst's verdicts in particular -do you know anything about that?
A Yes, I know about that. I just said that verdicts pronounced by the Stuttgart Court were repeatedly objected to. Of course, these were usually cases of medium and smaller types, or less important. I considered these lists from Berlin to be rather small-minded. Several nullity pleas too, against verdicts of the Special Court were initiated by Berlin -- that is against the Special Court at Stuttgart -- and were carried out. However, in the serious cases which Cuhorst handled in trial, in any case, such heavy penalties were always pronounced that the Reich Ministry of Justice, in these cases, doubtlessly had no reason to make any objection.
Q Do you not know of cases which, by way of the nullity plea, came again to a trial or to a re-trial, in which cases the death sentence or heavy pentitentiary sentences were pronounced, while Stuttgart, under Cuhorst, had pronounced other penalties?
A Yes, that is correct. I myself had to defend such a case, or was represented in such a case. That was the case of Fussen. It was a sexual case against a Catholic Priest. In my plea I asked for five years' penitentiary on order of the Reich Ministry of Justice because of attempted rape and because of dangerous injuries which the Friest Fussen had caused to a girl called Margarethe Brandner, during the course of many years.
The Special Court, with Cuhorst presiding, conducted this case in a grandiose manner, or a large-scale manner. I always supposed that a very serious penalty, which would at least be in accordance with my plea, would be pronounced. The verdict, however, was only for three years in prison. I reported to Berlin, that is, I drafted a report which the General Public Prosecutor signed. I stated that the discrepancy between the plea and the verdict was, above all, due to the fact that the Special Court had not recognized the attempted rape.
I was of the opinion that these three years in jail should suffice, especially since the case was already some time back.
The case was so old that it almost was no longer within legal competance.
1983-A The reich Ministry of Justice did not agree with this suggestion, or comply with it, but made anullity plea to the Oberreichsanwalt in Leipzig; it initiated the nullity plea.
The verdict was changed by the Reich Supreme Court at Leipzig because it was too lenient. It was referred back to the Special Court in Frankfurt. If I remember correctly there Fussen, in contrast to the three years of jail sentence which he got in Stuttgart, was given a penitentiary sentence of eight years. Thus the verdict exceeded by three years the plea which I had made. The plea which I had made, had itself been made by directive from Berlin, and likewise the Special Court Frankfurt exceeded these five years by three years.
Q Can you perhaps tell us, when this case took place, when it was in court, and when the verdict was issued?
A The crime took place, if I remember correctly, during the years 1926-27, until 1934, or 1932, I don't remember exactly. The deed at the time the sentence was pronounced, was eight or nine years back. In any case the main facts in the case were that far, in the past. It is possible that the deed went on for some time longer. The sentencing was, I believe, at the end of 1940, or at the beginning of 1941.
Q Further in your affidavit you mentioned the sentence of Klaussner and Klautzer in some detail. Can you tell us what the plea of the prosecution was in that case?
A Yes in the case of Klaussner we were concerned with two fellows, who, are prisoners detained pending trial, wanted to escape, and they wanted to do it in this way. They made an agreement that they wanted to beat the warden of the prison and, after taking the keys away from him, they wanted to escape. They hit this prison warden and knocked him down, but he succeeded in getting up again and this prevented the attempted escape. As far as I remember the plea, of the prosecution against both defendants was for death sentence in both cases, under the point of view that it was a crime against the" Violent Criminals Decree".
The special Court under Cuhorst, for one of the defendants by the name of Klautzer, who was 19 or 20 years old, who had been punished before because of fraud and who had made the plans for the escape -- they sentenced him to five years in the penitentiary; while the co-defendant by the name of Klaussner, who was only 17 years old and thus a juvenile, was sentenced to death by the court.
The verdict was executed.
I was concerned with this case because the defense counsel of Klaussner, of the juvenile who had been sentenced to death -- a nullity plea to the Oberreichsanwalt was initiated. I initiated it with the intention of changing the sentence, that is, withdrawing the sentence, and achieving a re-trial in which there would be no death sentence pronounced. As expert of the General Public Prosecutor's Office I was put in charge of the case, and I was of the opinion that the initiation of the nullity plea, by the defense counsel, should be agreed to, or should be helped. It seemed to me to be unjust that the older one, Klautzer, who had made the plan for the deed and who, after all, took part in the deed by attracting the attention of the prison warden to himself and later by holding him so that Klaussner could hit the warden -- I believed that Klautzer, that **, this older one, should not get away with only five years while the juvenile, Klaussner, who to be sure had hit the warden, should suffer for the deed with his life, or atone for the deed with his life.
In any case, if both of them had been sentenced to death, that would have been too severe. For that reason this Klaussner, this juvenile, should also have received a prison sentence.
Therefore, I was in favor of the nullity plea and tried to prove its correctness. I also believe that I did prove that the sentence of the Special Court which pronounced the death sentence for this juvenile was not legally justified, regardless of the injustice toward his accomplice. However, I did not succeed in this opinion.
The General Public Prosecutor looked at this juvenile, this Klaussner, at the prison.