A. I know nothing about that. All I know, as I said this morning, that at the trial it was shown without any ambiguity that the woman late in the evening had entered the room of the Pole.
Q. I believe you have already given your views about the judge. I would like now to discuss a different case. It is the Gipsy case.
A. Eckstein.
Q. Just a moment, who was the Gipsy?
A. Eckstein.
Q. Witness, today you said that several persons were in the dock in that case?
A. Yes.
Q. Who was in the dock?
A. As far as I remember, Eckstein.
Q. What was his age?
A. Forty-three.
Q. What was his nationality?
A. His nationality, probably German, but in any case no Gipsy.
Q. Who else was in the dock?
A. Winter.
Q. How old was the gipsy Winter?
A. About twenty years old.
Q. Who else was in the dock?
A. Another defendant, Coehler, as I remember the name; if I remember the name correctly, he was a great deal younger.
Q. What was Koehler's age?
A. About seventeen; I remember that at the time the indictment was written up he was sixteen.
Q. Was he a gipsy, or not?
A. He was a gipsy.
Q. And what was his name; you said he was a gipsy.
A. I think it was Koehler.
Q. As you were so interested in that case, I may proceed for certain from the assumption that you remember the case today, and that you remember the punishment Cuhorst sentenced him to.
A. I think it was a prison sentence, but as to how long I can't tell you that now.
Q. Witness, you described as extermination methods the attitude of the defendant Cuhorst in the Winter case. May I ask you now whether you, even from your point of view, wouldn't consider it inconsistent on the part of the defendant that he left the youngest gipsy alive?
A. No, I would not consider that inconsistent for the reason that the third defendant played a minor part and also because the court on no account was able to pass a death sentence. During the trial Eckstein was described as similar to a gipsy because he together with the gipsies had been roving around the country and had worked in different places, and than had changed places of work, and always in the company of gipsies.
Q. Witness, you, yourself, are a lawyer; can you tell me whether you would consider it favorable or unfavorable that a man of German nationality roves around the country with gipsies.
A. What certainly is not customary.
MR. LAFOLLETTE: If the Court please, I object on the grounds that is irrelevant; it certainly h s nothing to do with this case.
THE PRESIDENTL Objection sustained.
Q. May I ask you for the name of the judge who prepared the case?
A. As far as I remember that was Landgerichtsrat Dr. Atzendorfer.
Q. Witness, concerning the views I have already been told by you, I am gratified at the replies I have already received from you. How, I would like to discuss things of a more general nature. May I now begin with what documents did you submit to the prosecution which previously had been in your possession?
A. I gave the prosecution a number of indictments and sentences which I don't remember now in detail. All I know is that, for example, the indictment in the Behlbach case was among then; the other documents, I don't remember.
Q. Witness, may I ask you to think this over and say whether among the cases, whether some of the cases you mentioned today are among them?
A. For example, the Grassmann indictment, as far as I remember, I handed that over too. At the moment I cannot remember any others.
Q. Did you hand over any documents in the Lecsinsky case?
A. No.
Q. Were you a witness of those cases?
A. Yes.
Q. Who was the presiding judge?
A. I do not remember.
Q. Who was the defense counsel?
A. I do not remember.
Q. The public prosecutor?
A. As far as I remember, Dr. Rimelin.
Q. In the case Grasaman, did you give the prosecution any documents?
A. It is possible that I gave them the indictment, and the verdict. I did have both in my possession at the time.
Q. Did you hand over your diary?
A. No.
Q. Any copies of your diary?
A. No.
Q. You mentioned one Dr. Wagner as an associate judge in connection with the penal case, I cannot remember at the moment which, and you said that there had been a rumor to the effect that Wagner had been transferred from the Special Court because he had voted differently than Cuhorst?
A. Immediately after the transfer of Landgerichtsrat Dr. Wagner to the local court, which came as a surprise to everybody, that was the rumor which was being discussed among all colleagues. I was told about it directly by those colleagues who were personally friends of Wagner.
Q. What was the name of that colleague?
A. The present Chief Public Prosecutor, Dr. Mueller, also the attorney at law, Diessem.
Q. Do you know that Landgerichtsrat Dr. Wagner had difficulties with other presiding judges of the district court?
A. I know nothing about that because at the time when Landgerichtsrat Dr. Wagner worked at the penal chamber I was not in Stuttgart.
Q. Do you know in particular that other presiding judges, too, were of the opinion that he frequently put questions during the trial which did not touch the essence of the matter, and that he put questions very frequently which made it very tiring for all those at the trial?
MR. LaFOLLETTE: I object your Honor --
DR. BRIEGER: (Interposing) I withdraw the question.
Q. Witness, I should now like briefly to discuss the affidavit, and I only wish to take up a few points. Witness, in one passage of your affidavit you said, "Until then I had no knowledge of the existence of the so-called Special Courts." That was in 1941, if I understood you correctly. This is for my own information: Again, how far had you progressed in your professional training at the time?
A. In 1941 I passed my first examination, and at that time I was a soldier -- correction, at that time I had spent six to eight months at my preparatory service at a small local court outside of Stuttgart.
Q. During your first state examination you did not assume that you might be asked questions concerning the Special Courts. As you also in your affidavit say, that these Special Courts were of outstanding importance within the field of administration of penal justice.
MR. LaFOLLETTE: I object, your Honor, purely for the fact that the witness said that he did not know anything about the Special Court until he got there. What he might have assumed, and what he would have been asked upon his first examination, I do not believe, effects his credibility, certainly it does not go in for any other purpose that I can sea.
DR. BRIEGER: Your Honor, in this case I am not interested in attacking the credibility of the witness, but I am interested in emphasizing that the knowledge of the witness within the field of the administration of penal jurisdiction was more than modest.
It is about the same as an American lawyer, if he were to tell me that all his life he had not heard of the grand session court.
MR. LaFOLLETTE: I think that is all right, but I still do not believe, it goes to any issue on the direct examination. The witness has testified that he did not know about the Special Court. I think he testified that his opinion about what was done at Stuttgart arose from the facts rather than from the law. Now, the mere fact that he might not have known about it or might not have studied about-- I simply do not see that it adds in any way to the defense case. It does not affect his credibility nor does it go into anything pertinent.
DR. BRIEGER: I do not intend, your Honor, to put further questions in this connection. What the witness has told me so far, from that angle is sufficient for me.
Q. Witness, you say that Cuhorst's views on the administration of justice, for that attitude, it was typical that even in the case of -- difficult cases, he conducted the trial on the basis of the indictment received from the prosecution and that evidently it should have been his duty -- he had not read all the files?
A. Yes.
Q. May I know, Witness, what law or what official position makes it obligatory for the presiding judge of a penal court to study the files?
A. In my view, and according to my knowledge, that does not arise from a law or from an official provision, but it is obviously from the physical concept, the duties of a judge. My knowledge on this case is obtained from conversations with former public prosecutors, and they would say, sometimes the indictments were as thick as a volume and very detailed, and when Cuhorst asked them about, they said they had to do it because the presiding judge, Cuhorst, had the habit of not studying the files; and, unless they made the indictment so detailed, a whole series of points would never be approached at the trial.
Q. Witness, I think that is material. It seems to me, I can assume now that Cuhorst, when counted on the prosecution to write up such indictments, so that not one single point of importance should be left out -
A. That is one way of interpreting the matter, but there is also another interpretation just as possible; and that is, that the prosecutors, and under the German code of procedure, particularly before the Special Courts, did not always look at the matter from the objective point of view.
Q. Witness, we will not argue about the various interpretations. We will have an opportunity to argue with the experienced lawyers and high ranking judges. Witness, it also struck me, in this sentence, the word "typical", It was typical. When using the word typical, does that not make it necessary to have a detailed knowledge of the man, that has known him for years, to know how he behaves?
A. I believe, to recognize his manner, one did not need to have known him for years. Anybody who had watched twenty cases, which were all conducted in the same manner, anybody who had done that, could, in my view, form his own judgement.
Q. Witness, one thing more, I just remember it now and perhaps I can put it in now. In the second case you said that the two defendants had said that they had not been previously convicted only because the provisions of the German penal code were entirely different from that of the American; and because of that, may I ask you did the defendants make this statement before the court under oath or did they not make it under oath?
MR. LaFOLLETTE: I beg your pardon, I thought you asked about some specific defendant. Were you asking about any defendant?
Q. Was that the Milk case?
A. Yes, that was the case.
Q. I would like to know in this case if the defendant made the statement under oath or not?
A. They did not make the statement under oath.
Q. Thank you, I just wanted to establish that. Witness, in your affidavit you said that you know of a case where Cuhorst before the trial had started, concerning the defense counsel, Dr. Ruesinger in Stuttgart, and he had asked them to come to his own room and told there that the two defendants whom Dr. Ruesinger was defending would be sentenced to death by him and that he would not allow therefore Dr. Ruesinger to make any lengthy statement nor were they desirable.
Q. May I ask you what case?
A. That was the Milk-Margitay case.
Q. Who was the presiding judge?
A. Presumably Dr. Atzendorfer.
Q. Did you think it usual or unusual that a judge before the opening of a trial or at the trial tells the defense counsel that a death sentence is possible?
A. You weakened your statement now and put it quite differently from the way I put it myself. I remember perfectly clearly exactly what happened. The case was held at the Oberlandesgerichtgobaeude at Room 149. I was outside the courtroom. Therefore Reisinger, who is hardly older than I and with whom I had a certain amount of personal contact, came out of the judge's room. He was rather excited and said to me that Cuhorst had just told him that the Milk and Margitay case was quite clear. It would end in a death sentence and he could save himself any lengthy statements. At that time I told Reisinger in the circumstances of his defense, don't go in but Dr. Reisinger replied that he had to go in because he was a defense counsel appointed by the Court. What happened -- a thing which I would not consider unusual was not that the judge said that a death sentence was possible but what happened was the Presiding Judge said a death sentence would be passed and consequently the defense counsel could save himself making any lengthy statements on the sentence.
Q. Do you remember, witness, whether it was a case where the death sentence was mandatory?
A. No, it wasn't mandatory; if one would assume that the offense had been committed under the public enemy law, a penitentiary sentence could have been given.
Q. Witness, do you remember whether the defendants admitted their offenses?
A. The defendants confessed on all accounts.
Q. Witness, had you considered it possible that the Presiding Judge would pass the death sentence because he considered it the proper sentence? Witness, I should like to repeat my question. Witness, did you count on the possibility that Cuhorst on account of the fact that complete confessions had been deposited would pass the death sentence in order to afterwards work for a pardon?
MR. LaFOLLETTE: I object, your Honor, there is nothing in the witness's testimony that would justify this assumption. It calls for an assumption as to what was in the mind of the defendant and there's nothing in his direct examination in my opinion -- this question in any way that affects or reaches nor does it affect the credibility of the witness. It calls for a conclusion as to a state of mind of the defendant, as I see it.
DR. BRIEGER: Before the Tribunal gives its view may I point out that in this passage of the affidavit the witness was not satisfied in stating facts but to a considerable extent also expressed a judgment of the case, a judgment of the part that Cuhorst particularly played. Therefore, I put ay question so as to give the witness an opportunity to re-examine his judgment of the time and put it to him and to confront him with a factor which probably had not occurred to him before.
MR. LaFOLLETTE: I withdraw the objection.
DR. BRIEGER: Thank you very much.
MR. LaFOLLETTE: I don't know whether he remembered it now. Ask him if he remembers the question.
DR. BRIEGER: Would you answer the question? Do you remember the question that Mr. LaFollette drew my attention to?
A I never thought of that and I did not think of it because, as I said before, in this case the death sentence was not mandatory and in my view it meant starting the wrong way around if one passed the death sentence and afterwards asked for a pardon because Cuhorst knew more about pardons that we which amounted to a maximum of ten pardons given out of a hundred death sentences and later on that figure decreased further.
Q Witness, at that time and day do you know anything about the nullity pleas?
A The institution of the nullity plea is known to me.
Q Would you conclude from that institution alone meant that the freedom of the judge was considerably curtailed? As he was limited in any case to any verdict that did not become legal? Would you not assume that such considerations should always play some part when one looked at a sentence or a pardon by a judge?
A Which are the motives of Cuhorst naturally I cannot say anything about that but on the other hand I take the view that if a judge finds the death sentence by that he has expressed his opinion as a judge and if he does not want to pass such a death sentence and perhaps he is not even permitted to pass it because otherwise a nullity plea might be made and because in another instance at a different Court possibly the death sentence would be passed after all -- a death sentence which he did not really wish to bring about -- but in my view these are elements which nobody can judge. On the other hand, the signature of a judge does stand on a verdict and one must therefore assume that that verdict contains the conviction of the judge.
Q Witness, if a judge is of the conviction that according to the facts of the case one can only arrive at one opinion, would you assume in that case that it is proper to risk passing a sentence which appears too low to the higher authority -- to risk the possibility of that sentence being quashed -- to risk that judge pass a sentence of ten years in the penitentiary and then another Court pass the death sentence on the defendant?
Don't you think it would be more likely that the judge should keep control of matters and I, myself, the judge, try and achieve a pardon for that man?
MR. LA FOLLETTE: We do object now, your honor. I think this definitely calls for an argument of the witness.
THE PRESIDENT: Anyway, it doesn't seem to me that a judge should care what happened afterwards. He should exercise his individual judgment and let the next Court do what it pleases about it.
Q. Witness, in conclusion I should like briefly to revert to your personal circumstances. First of all I should like to ask you briefly, it may be that it was mentioned in the morning but neither my colleagues nor I mentioned it. How often did you attend sessions of the Special Court at Stuttgart? About how many times?
Q From 1942 I attended almost every day's proceedings before the Special Court whenever such trials were held at all. This was possible because I was a law clerk. During my training I did not have very much work to do and I was altogether permitted to attend such sessions. On the other hand, for the reasons I have already mentioned I had a particular interest in these proceedings conducted by the Special Court. Naturally, I can no longer say how often I attended sessions of the Special Court, but I can say that I did attend the majority of cases which were tried in Stuttgart at the time as a member of the audience.
Q Was Cuhorst the Presiding Judge and were other judges presiding?
A Yes, that's correct.
Q During what period was that?
A From the beginning of 1942 until May 1944.
Q How far had you proceeded with your training at that time?
A In 1942 I had just finished the so-called small-little court sessions and in 1944, I think I had spent two years and eight months in the preparatory.
Q Do you mean to say that you had made enough progress in your training in penal cases to enable you to judge things from a legal point of view? Answer "yes" or "no."
A I think I can say "yes". Quite definitely, yes.
Q Witness, I would like to follow this up with another question since we have been discussing your training. On what basis of the previous phase of your training is it necessary for you to pass another exam or not?
MR. LAFOLLETTE: If it please Your Honor, now I am going to be just a little bit free with my friend Dr. Brieger. I believe this is the fourth time he has asked the man if he did not have to pass another examination, and I think each time the man will say "yes", so I see no purpose to the question, and I object to it.
THE PRESIDENT: That is the law anyhow, as I understand it.
DR. BRIEGER: Well, I don't like to do anything to put Mr. Lafollette in a bad mood, because I admire him, but I think previously I formulated my question in a somewhat different manner. Previously I asked whether he was still at the preparatory phase, and I had not clarified yet as to whether the witness, was already allowed to practice as a judge, public prosecutor, or attorney at all. I had not gotten quite as far as that before.
I have nearly reached the end of my cross examination, but I have two more brief questions left.
BY DR. BRIEGER:
Q. I am interested in your political career too; in addition to statements of this morning, and without disputing your membership --you mentioned your membership--you mentioned your membership in the SA at the time when you joined the Party--I would now like to ask you this. At what age did you become a soldier?
A. In 1944, when I was 25 years old.
Q. At the age of 25. How did it happen that you were not called up sooner?
A. That is quite simple, because at that time I was entirely unfit as a result of a very serious accident.
Q. You do not mean to say that it was Party support that kept you at home? Did the Party or any of its formations try to keep you at home? I would like you to interpret my question very widely.
A. Never.
Q. Witness, reverting back to this, apart from the fact that you were a member of the Party and of the SA, may I know to what other formations you belonged?
A. For two years, at the age of from 13 to 14½, I was a member of the Jungvolk.
Q. May I ask you in what capacity you worked at the SD?
A. Never.
Q. My question was as to whether, and if so, in what capacity? That is, whether and in what capacity you worked for the SD.
A. I never worked for the SD.
DR. BRIEGER: Thank you.
MR. LAFOLLETTE: We got the answer, but I don't know what it has to do with the case.
THE PRESIDENT: It didn't do any harm, anyhow.
MR. LAFOLLETTE: Not as it came out.
JUDGE BRAND: I should like to ask the witness one question.
BY JUDGE BRAND:
Q. Returning to the Pitra case--I think that is the name of the Pole--do you identify the case I refer to?
A. I didn't get the German translation.
Q. I am referring to the case of the Pole who was charged with improper relations with a German woman.
A. Will you forgive me, but again the translation is not coming through.
Q. I am calling your attention to the case of the Pole Pitra. I understand from your testimony what act he is accused of committing; I merely wanted to ask you if you know what statute he was accused of violating in the performance of the act that you said the evidence indicated he had committed. What law was it that he was charged with violating?
A. As far as I recollect, it was a special provision of the law concerning Poles.
JUDGE BRAND: Thank you.
BY THE PRESIDENT:
Q. Witness, in the course of the examination of other witnesses who have testified concerning Dr. Cuhorst, it has been said that he tried his cases on the basis of the indictment, and you have testified that the indictments were quite voluminous. What is the significance of that fact?
A. That means that, first of all, the indictment had not been so voluminous and that from the manner in which Cuhorst conducted the trial could be held smoothly.
I remember one case when the prosecution had prepared the indictment badly, when further details were contained in the files. At the time the presiding judge, Eschweiler, did criticize the prosecutor during the trial, and the public prosecutor pointed out that these statements were contained in the files.
Q. Who conducted the examination during the trial? That is, who asked the questions of the defendant and who asked the questions of the witnesses? Was it the prosecutor or the judge?
A. No, the questions were put mainly by the presiding judge, as is customary under German law, the associate judges too, the public prosecutor, the defense counsel, and the defendant himself were allowed to put questions to witnesses.
Q. Then the judge sometimes examined the defendant's witnesses, is that true?
A. The judge had to hear the witnesses for the defense first.
Q. I am not asking you whether he had to hear them. But somebody asked the questions; who did that, the defense counsel or the judge?
A. Every witness--it didn't matter whether he was a witness for the prosecution or the defense--first of all he was questioned by the presiding judge.
Q. And that is, perhaps, the reason why the judge wanted the indictments very full, so he could get all the facts without going to the files; is that correct?
A. That is possible.
THE PRESIDENT: That is all.
MR. LAFOLLETTE: I have no re-direct.
I will have another witness. I don't know whether it is time to recess or not. It will take a little time to get him here; perhaps we could recess.
THE PRESIDENT: This witness may be excused.
(Witness excused)
There is additional time of twenty minutes, if you can avail yourself of it, before the usual recess.
MR. LAFOLLETTE: I will only need about five minutes, or two or three minutes, to get the witness up here--I didn't know we would end that soon--and then we Can proceed to the usual recess. Or, if Your Honors desire, we may take a recess now and then go through.
THE PRESIDENT: Perhaps we might as well take the recess, since we are so close to the time.
We will recess for 15 minutes.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
MR. LA FOLLETTE: If Your Honor please, I would like to have the witness Diessem called. The witness will testify in the German language.
DR. JULIUS DIESSEM, a witness, took the stand and testifies as follows:
JUDGE BRAND: Will you raise your right hand and report after me the following oath:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath.)
JUDGE BRAND: You may be seated.
DIRECT EXAMINATION BY MR. LA FOLLETTE:
Q. Will you tell the Tribunal you name and residence, please?
A. Julius Diessem.
Q. And where do you live now, Mr. Diessem?
A. At Stuttgart, Hohenheimstrasse 56.
Q. Will you tell the Tribunal your legal training and back ground and your profession?
A. From 1907 until 1912 I studied law. In 1912 I made the first examination. Then three to four years I was Referendor, legal clerk. That was the usual procedure. Then in the fall of 1916 I passed the second examination, the assessor examination. Then from the fall of 1916 on I worked with the prosecutions in Ravensburg and Stuttgart. Then from 1923 on I was a judge with the jury court and the penal chamber. On 1 February 1925 I settled as an attorney in Stuttgart, and that is my profession since that time.
Q. Consequently you practiced in Stuttgart during all the time that the defendant Cuhorst was president of the Special Court and president of Senate No. 1 of the Oberlandesgericht, is that right?
A. Yes.
Q That was the criminal center?
A Yes Did you defened a young married man by the name of Stiegler in the special Court before the Defendant Cuhorst?
A These proceedings took place at Ulm
Q Was the defendant Cuhorst the presiding judge?
A Yes.
Q Do you recall what year that was, Dr. Diessem?
A I believe in the spring of 1943
Q Under what division of the criminal Code was he charged in the indictment?
A He was charged firstly with exhorbitant prices. He was going beyond the prices provided in the regulations
Q Under what paragraph of that regulations was he charged?
A I believe it is paragraph 5 of the decree against Public Enemies.
Q Tell the Court about the facts generally. What was the extent of his activities?
A Stiegler was a young man who was not even thirty years old I do not know whether he had an occupation. He called himself a businessman, a merchant. In the course of time, he traded all sorts of merchandise, in the end, he also traded washing material, the kind they produced during the war time. Doing so he violated the price regulations. It was alleged before that that he had been prohibited by the Ministry of Economy to trade. He also traded household articles, cooking parts combs and so forth as far as I remember, then he was drafted into the army. That was the garrison at Ulm. As a soldier he continue to do some trading from the barracks. It was a small amount though. He had a wife who helped him, and with whom he was in correspondence as much as I know She lived at Stuttgart. The case was discovered. I do not know who denounced him. Perhaps the police found out. They picked up the case. A charge was brought against him before the special Court. Since the armed forces had transferred him or rather released him to be tried before the Civil Court, the trial took place in the building of the District Court at Ulm and I was his defense counsel.