DR. BRIEGER: I should like to raise an objection to that question. Dr. Brieger for the defendant Cuhorst -because ail other questions as to how the affidavit was brought about would be made impossible for us.
THE PRESIDENT: I don't understand that.
DR. BRIEGER: Your Honor, may I say some more about that?
THE PRESIDENT: The objection is overruled.
Q. I am not trying to preclude but I am trying to prove what has happened previously. I will ask you whether or not you wrote your own affidavit, Mr. Schwarz?
A. I have dictated that affidavit myself.
Q. And the language in there states accurately the facts that you cared to state and your opinions therefrom as an attorney; is that right?
A. Yes.
Q. Now, will you tell the Court your legal training and the positions that you have held -- particularly with reference to the time that you were at Stuttgart during -- from the year 1939 up to the end of the war?
A. In the year 1939 I was still a student; after passing the first examination I came as a legal clerk to the District of the District Court of Appeals Stuttgard and in the course of my training at the end of 1941 or maybe the beginning of 1942, from then on until May 1944 I was with the Stuttgart Courts in charge of prosecution, penal chamber, civil Courts and the usual stations of training.
Q. Did you attend tho Special Court in the Criminal Senate of the Oberlandesgericht over which the defendant Cuhorst presided?
A. Yes.
Q. As often as it was possible for you to do so during that time?
A. Yes.
Q. Roughly how many cases did you hear the defendant try or do you remember? That is, how many per month or how many per week or low often were you in the courtroom?
A. That differed, greatly - it varied greatly because as I said before Special Courts in many cases, sometimes less frequently did have sessions in the District but not in Stuttgart itself and because the Presiding Judge of the Special Court frequently was in charge of this personally and during that time could not be active as a presiding Judge in Stuttgart himself.
Q. Were you present in the Courtroom during the trial of Milk and Margitay?
A. Yes, during the entire trial.
Q. Do you know Dr. Riesinger, who defended the two defendants?
A. Yes.
Q. What nationality was Milk, if you recall?
A. Milk was Baltic.
Q. And Margitay?
A. Margitay was Hungarian.
Q. What acts did they do? What were their offenses? Tell the Court about the facts of that case and the trial of that case?
A. The two defendants in the course of several weeks had committed about 20 burglaries, some in the night by climbing walls of houses.
Q. Under what section of the statute were they tried, if you recall, or under what provisions?
A. As public enemies.
Q. Now, do you know anything about defense counsel in that case being called in by the defendant and told not to take any time with the case?
A. No.
Q. I will ask you whether or not during those robberies those defendants robbed the house of the Gauleiter in Stuttgart?
A. Yes, the two of them had broken into the house of the Gauleiter. The public talked about that even before tho proceedings -- talked muck about it, and one said that on the occasion of that robbery in the house of the Gauleiter the two thieves took out a considerable measure of food and other articles that were quite rare in the population at that time.
Q. Did the defendant Cuhorst make any comment about that fact in the trial of these men?
A. Yes, mention was made of that also, and the presiding judge very definitely stated that that was a case of libel. The two had only stolen a camera which belonged to the adjutant of the Gauleiter, a few pieces of under-clothing, and a piece of pie or cake, which was left over from the birthday of the son. The son had had his birthday the day before the robbery.
Q. The defendant volunteered that statement because of the rumors or the story that was generally going around Stuttgart; is that your opinion?
A. He referred to the rumors circulating at th t time and stated that the proceedings had proved that there was not a true word about that.
Q. There was nothing wrong with the Gauleiter's house, no extra food there, is that right?
A. Yes.
Q. What sort of things did these two defendants take, generally?
A. Food, underclothing, watches, jewelry, and wherever possible, money.
Q. Do you recall whether this was the first offense?
A. At that time both of them stated that they had no previous offenses, or previous convictions. That could not be checked because both were from foreign countries, and from there it was not possible, apparently, to get any information.
Q. They had no previous convictions in Germany as far as the proof was concerned, is that right?
A. No.
Q. I will ask you whether or not you recall, was this one of the cases in which the defendant Cuhorst announced to these men that they would be sentenced to death at the beginning of the trial, before the trial had ended?
A. It was not told to the defendants themselves, but the trial was very short; at most, including the deliberations and pronouncement of sentence, it took only one hour.
Q. From your observation of the trial of cases involving that number of burglaries, in criminal procedures other than those in the Special Court, what would you say would have been the normal period for trial of a case of that kind?
A. I am convinced that before a normal Penal Senate a case of that kind would have lasted at least one day.
DR. BRIEGER: Concerning this question, I want to raise an objection because tho witness is purely asked for his opinion on the basis of his limited experience as far as tho defendant Cuhorst is concerned.
In the event that my objection should be sustained, I ask that that question and answer be stricken from the record.
MR. LAFOLLETTE: I think the weight of it is for the Court.
THE PRESIDENT: Objection overruled.
MR. LAFOLLETTE: The Court is to give the weight to it.
BY MR. LAFOLLETTE:
Q. What was the sentence of those two men?
A. Both defendants were sentenced to death.
Q. Do you know whether in fact they were executed?
A. The execution took place in fact.
Q. Were you present during the trial of Oelbach?
A. During the trial against Oelbach, I was not present. It did not take place in Stuttgart.
Q. You stated certain facts in your affidavit with reference to that case. What was the source of your information about the Oelbach case?
A. When Oelbach was sentenced to death, after he had been sentenced he was brought to the prison in Stuttgart. There he made an application to be permitted to put into the record an application for retrial.
I had been with the Penal Chamber for training before, and I was told by the presiding judge of the Penal Chamber to go into the prison and take down the application made by Oelbach.
Q. And you did?
A. Yes.
Q. The facts that you have stated in your affidavit are the facts which you obtained from that interview with the defendant, I mean, with the then convicted Oelbach? Is that correct?
A. That was based on the conversation I had with the defendant Oelbach, and a further conversation with the prosecutor who dealt with the case and who also pleaded the case in the sessions.
Q. Were you present at the trial of Robert Winter and Eckstein?
A. Yes.
Q. What nationality were Winter and Eckstein?
A. The nationality -- that is, the citizenship -- is not quite clear to me. At any rate, Winter was a Gypsy, whereas Eckstein was not a Gypsy, but had traveled together, with the other defendant, with a group of Gypsies.
Q. How old was Eckstein?
A. That I do not know precisely; according to his looks I would say he was about 40 years old.
Q. And Winter?
A. About 20.
Q. What was the extent of the prison terns that Winter had before, or the sentences, if any, that Winter had before this trial?
A. Winter, as I found out at that time from the indictment, had been sentenced twice before; once with a prison term of a few days or arrested for a few days, and the second time with a fine of, I believe, 20 marks.
Q. And what did those Gypsies take? Was it valuable? Or, how much did they get?
A. First of all, food and several bicycles.
Q. What was the sentence against Winter?
A. Eckstein and Winter were both sentenced to death.
Q. Do you recall who defended Eckstein and Winter in that case?
A. Yes, it was Dr. Diessem, Attorney Dr. Diessem, from Stuttgart.
A. Was that case tried before the Special Court?
A. Yes.
Q. The defendant Cuhorst presided?
A. Yes.
Q. I won't ask you for the particulars; I just want to know, was there a proceeding filed for a reopening of that trial or for a new trial of that case?
A. It is known to me from conversations which I had at that time with Attorney Diessem, with whom I worked as legal clerk, that he had requested a trial for both of these defendants. That application was granted at first by the Third penal Chamber. In the meantime, however, the competency to grant retrials had been changed to the extent that now the Special Courts themselves had to decide about applications of that nature. I know that then the case came book to the Special Court, it was referred back to the Special Court, and the Special Court rejected the application.
Q. And was that Special Court presided over by the defendant Cuhorst that rejected the application?
A. Yes.
Q. You state in your affidavit that "Perhaps the most significant expression of the tendency of the Special Court was reflected in a remark reported to me where Cuhorst was to have said to his colleagues of the Bench, when leaving the conference room to enter the Courtroom, 'Viola, gentlemen, let us go to the slaughter bench.'" Will you tell the Court whether or not a death sentence would follow those remarks, if you recall, and what were the circumstances under which you heard them?
A. As I have already stated in my affidavit, I did not hear those personally.
I was told about that, in 1942, by a colleague, the legal clerk Hochstaetter, in Stuttgart. Hochstaetter said that remark had been made on the occasion of a trial at Sigmaringen, where he had been for training. It was the case of a sex criminal who then, after that remark had been made, actually was sentenced to death.
Q. Do you recall the case of a young polish boy named Pietra?
A. Yes. Will you tell the Court some of the facts -- I withdraw that.
Did you witness that trial, as you recall?
A. Pietra was a young Pole, less than 20 years old. I think he just have been about 18 years of age. The charge was that as a Pole he had intercourse with a German woman, which was prohibited by the then existing laws. Pietra confessed th t fact in the trial and stated furthermore, that had been the first time in his life that he had had intercourse with a woman.
The witness who was heard during the trial was apparently not of a high moral level, which could be seen from the fact that she had been confined to a correction institution in her youth. She had to admit, on the questions put to her in the trial, that the initiative for the acts with which the defendant was charged had come from her. One night she went to his room after he had gone to bed.
Q. And what was the sentence of the defendant Cuhorst against that defendant?
A. Pietra was sentenced to death.
Q. Do you recall, was that sentence actually carried out, or was there a remission? I don't know.
A. No. I remember that later I heard in the prison that Pietra got only eight years of prison. What court it was which commuted the sentence I could not tell.
Q Do you recall the case of Leszinski some time in the late spring of 1942, a Pole?
A Yes.
Q Did the defendant Cuhorst try that case?
A Yes.
Q Was it tried in Stuttgart?
A Yes.
Q Do you remember, were you a witness and present at the trial of that Pole?
A Yes.
Q What was the sentence?
AA death sentence.
Q Was he executed?
AAccording to my notes, yes.
Q Tell the Court the facts of that case as you recall them.
A Leszinski, if I remember correctly, was an agricultural laborer with a peasant near Leonberg, and for reasons which I do not know, together with other Poles who were there and who were dissatisfied, he had various conversations and among other things ho said they should damage their tools so that they wouldn't have to work so much. Apart from that, if I remember quite precisely, in a room of the farm house he took a postal card with Hitler's picture from the wall and touched his body in an indecent way with it.
Q Will you help the interpreter and tell him approximately what part of his body he touched with it?
A His seat.
Q And he was sentenced to death, this Pole?
A Yes.
Q Now, you remember the case of Englert?
A Yes.
Q What was the Englert case about?
A Englert was indicted as a looter.
Q What and when were the acts of looting performed by Englert?
A I do not remember it precisely, but I know that it was not during or immediately after an airraid, and that because Englert as a chauffeur worked in Kannstadt, and his job was to remove rubble from houses that had been damaged by airraids. Therefore it must have been a considerable time after an air attack.
Q Was he convicted under the decree against public enemies, do you recall?
A Yes. Looting is a fact that belonged under that public enemy decree.
Q I will ask you whether or not in interpreting that law it was not in accordance with proper and good legal procedure to hold that looting which was punishable by death was a looting which existed during the time of an airraid, or while the inhabitants were recovering from the immediate shock of the airraid or during blackout or even after blackout only while there was the shock of the airraid still on?
A The wording of the law, as much as I remember it, does not say anything about that. But as one could see from publications at that time, the fact was at first that sentences for looting were only pronounced if the criminal offense had been committed during the airraid or immediately thereafter.
Q What was the year of the Englert case if you recall, if you have any way of refreshing your memory?
A From memory I cannot remember the year right now.
Q Do you find Englert on the list that you have there?
A Yes. Under name 65. The date of the trial was the 24th of March 1943, and the death sentence was executed at Stuttgart on 17 April 1943.
Q If you recall, when did Englert take whatever it was he took with reference to an airraid, or what were the circumstances, the facts in his case?
AAs I said before, Englert as chauffeur on a truck, a truck driver, which was put to use to remove rubble, used the opportunity to enter cellars of abandoned or damaged buildings and took out various objects. What they were in detail I do not know any more.
Q But this taking was after the airraid had ended and there was debris there and the truck was out on the street cleaning it up; is that correct?
A It must have been over for a long time, because the rubble was not removed immediately after an airraid and the buildings are not abandoned in that way. These offenses must have been committed during the day.
Q I will ask you one more case. Do you remember the case of Kettlitz?
A I remember the case of Kettlitz. It was tried in Stuttgart as the first great case of black marketing. In the year 1942 -- I believe it was in the fall of 1942, the indictment was submitted by Prosecutor Sattler, and apart from Kettlitz there were five or six other persons indicted. The Prosecution in this case for the first time requested for an offense of that kind, which was considered a crime against the decree concerning the war economy, the death penalty.
Q Do you remember, was there a Judge Wagner as an associate judge in that case?
A The Then Landgerichtsrat Wagner was the reporting judge, Berichterstatter, in this case.
Q And the defendant Cuhorst presided?
A Yes.
Q And what was the sentence?
A Kettlitz was sentenced to ten years in the penitentiary.
Q Were you present during that trial?
A Yes.
Q What was the treatment of the defendant in that case and his counsel, if any, as you recall it?
AAs a listener in this case, a spectator, one had the impression that the presiding judge had the intention on his part to pronounce a death sentence. That could be seen from various statements to the effect that the Special Court had to do away, to finish these parasites on principle.
Q Do you know what happened to Wagner after the sentence was handed down in that case of ten years, with reference to whether he sat on the Landgericht thereafter?
A District court counsellor Wagner a short time after the case Kettlitz, was transferred and came as a single judge to the local court Stuttgart, As for the reasons for that transfer, I had no information on that subject, but among colleagues, especially among the attorneys that had to do with that trial, it was said that Wagner, during the deliberation about the sentence, had offered a great deal of resistance and objection and that the presiding judge was outvoted by the two associate judges, which made it a prison term rather than a death sentence. Wagner also stated that at the time to colleagues whom he knew well, for instance lawyer Diessem.
MR. LA FOLLETTE: That is all. He may be cross examined. Thank you, witness.
DR. BRIEGER (Counsel for Defendant Cuhorst): Your Honors, may I be permitted to begin my cross examination?
CROSS EXAMINATION BY DR. BRIEGER:
Q Witness, you have quite in detail described your education and your training, and in that connection I should like to put a few more questions to you. Where did you pass the first law examination, the State Board examination, and with what success?
AAt Karlsruhe, with the mark "Voll Befriedigend."
Q Your second examination?
A The second examination I have not passed yet, because immediately before the examination I was called to the army, drafted into the army, and up to now I did not have an opportunity to take part in the examinations which took place at Stuttgart up to now because they required that one had to be a member of the armed forces for two years, and secondly, had passed the 28th year at the time of the examination.
Q. Do you mean to say by that that your training, as a jurist is not completed yet?
A. As far as the second examination is concerned, it is not completed.
Q. Thank you. You said in the course of your statements, that you had taken notes, You said the same thing in your earlier affidavits. May I now put this question to you, Witness? From what points of view did you make these notes?
A. Yes. After 1942, I had attended several sessions before the Special Court. I had discussed what I had seen and heard with two colleagues in particular; Hochstaetter, I saw every day. We agreed that according to our opinion, what happened before the Special Court was not in order. Therefore, we greed that all things which were not in order should be corrected by us. We wanted to note this these things so we would have a case when these things would have to be accounted for. In 1942, we said that the official records in our opinion certainly would have been destroyed before that time.
Q. Witness, may I be permitted to ask you the age of these gentlemen who had these opinions?
A. At that time they were 23 and 24 years old.
Q. Students or legal clerks?
A. Legal clerks.
Q. In what stage of their education or training-
A. We had served about half of our time as legal clerks.
Q. Had they completed their training? You do not know whether the other gentlemen had completed their training?
A. No.
Q. In other words, if I understand you correct, you do not know whether the other gentlemen had the least experience with legal procedure?
A. I am convinced it was not a question of having special knowledge of criminal procedure. What we were concerned with the manner in which proceedings were carried out before the Special Courts. We were interested in the impression made. We were interested in the sentences which were pronounced in these proceedings.
Q. Witness, you said before, apart from scientific consideration, other considerations were important in your judgment and observation. What were these?
A. Generally, human points of view, first of all.
Q. What points of view, gave you so much cause to criticize?
If I understand you correctly, you say there were reasons for your observing these things more closely.
A. For instance, we could not understand why a boy of 18 years was sentenced to death because he had once had intercourse with a German woman.
Q. Purely chronologically, was that one of your first observations in the Special Court?
A. For me, that was one of the first observations.
Q. At that time, already, did you know that the Defendant Cuhorst had be in the party for a considerable time before, and that, at any rate, he had a certain position in the party?
A That was known to me at the time frem remarks mad by older colleagues. They told me he had been old fighter.
Q Did you know whether he had any office in the party?
A I do not know.
Q Did these factors essentially contribute to the fact that you observed him more closely?
A. No.
Q Did you belong to the party at that time?
A Yes.
Q Since when?
A Since the day when I passed my elimination in 1941.
Q Before that, did you have any contacts with the Party, especially the SA?
A No.
Q You mentioned, witness, that tire Defendant Cuhorst, frequently, went on official trips to conduct sessions of the Special Court. May I conclude from that, that during that time, in Stuttgart, there was somebody else in charge?
A I can only say that during his absence other judges presided over proceedings of the Special Court.
Q Do you knew what the names of these other presiding judges were?
A First of all, Amtgerichtsdirector Bohn who was deputy of Cuhorst. There was Landesgerichtdirector Haegele. There was Oberlandesgerichtsdirector Stube. I do not remember any other presiding judge.
Q Among these was Bohn frequently presiding judge?
A Yes.
Q As frequently as Cuhorst?
A That is hard to judge. I believe in Stuttgart, he had about the same number of cases as Cuhorst.
Q Did it strike you that Bohn had a chamber of his own at the Special Court.
A I did not find anything particularly interesting about his associate judges.
Q Taking into consideration that Bohn and Cuhorst were both with the Senate at the same time, had you also attended sessions of the Penal Chamber?
A I remember only one before the Penal Chamber where Cuhorst was presiding judge and Bohn participated. That was a trial against Communists.
Q If you consider the judges there, was it known to you which judge was in the fight and which was not?
MR. LaFOLETTE: I would like to hear that question again, please.
DR. BRIEGER: Taking into consideration that you have already mentioned the names of several gentlemen who were presiding judges apart from Cuhorst, may I ask you now to consider the other gentlemen who took part in the sessions and tell me if it is known to you in detail who among these were in the party, and who were not?
MR. LaFOLLETTE: I do not believe that is relevant on any ground, nor do I believe it is pertinent to anything I asked on direct examination. As I recall, I asked only one question, and that was the question with reference to the Gauleiter's house, but I do not believe that this is pertinent. I do not have any particular objection to it, but it does not bring out anything.
DR. BRIEGER: I will withdraw the question, voila.
Q. With regard to the remark of Cuhorst which you mentioned, you had said that you had not heard it yourself but another gentlemen told you about it?
A. Yes.
Q. When was that remark made?
A. I cannot say when the remark was made. I can only say when I heard about it. That was in the fall of 1942, I believe.
Q. Yes. That you stated before, Witness. Do you have an idea how long ago that may have been made? Was it a week before, months before or a year before?
A. It may have been several months.
Q. Since you were so vitally interest in these matters, that is the manner in which trials were conducted by Cuhorst, may I assume that you have discussed these matters with the other two gentlemen in detail? Do you still remember what you were told about that?
A. At the time we discussed the manner of conducting trials by Cuhorst, in that connection I was told this concerned the case of a sex criminal.
We did not discuss the individual facts. I was only told that he demanded he be sentenced to death.
Q. Were you told that that remark had actually been made by Cuhorst when the judges went to the bench?
A. He told me that in that case the public had been excluded. The judges before the trial started had been in the room next to the Courtroom. He had entered the judges chambers and asked the presiding judge to be permitted to attend the session since the public was excluded. They had just gone to the Courtroom, the remark was made on the way.
Q. If I understood you correctly, Witness, you just said that that legal clerk was to ask permission to attend the session because the public had been excluded?
A. Yes. Certainly.
Q. Accordingly, when your colleague told you that, didn't you ask him how that occured? Did you not ask him about the details? If the judges were already on the way to the Court room, he would not have had the opportunity to ask them?
A. I had no reason to ask that question because I had no reason to doubt the truth of the statement of my colleague. If he said he heard it, and told me the circumstances, that would be sufficient for me.
Q. You said you had no reason to doubt the witness. Did you know him for a considerable time already, or did you only meet him **** occasionally?
A. I knew him far several months. We met daily personally and privately.
Q. Witness, are you still in contact with that gentleman?
A. Certainly.
Q. May I ask for his address?
A. Certainly. It is Assessor Herbert Hochstaetter, Ministry for education, Stuttgart.
Q. That is sufficient, Witness.
THE PRESIDENT: Dr. Brieger, the time has come for our usual noon recess. We will adjourn therefore until 1:30.
THE MARSHAL: The Tribunal is in recess until 1330 o'clock.
(A recess was taken until 1330 hours.)