THE PRESIDENT: Yes. You can offer it in connection with your rebuttal evidence, and we will rule upon it then.
MR. LaFOLLETTE: Yes, sir.
BY MR. LaFOLLETTE:
Q. As I understood you, witness, you stated that the fact that the defendant Cuhorst had asked to go to the Ukraine arose out of his disfavor with the Reich Ministry of Justice and the officials in the Ministry of Justice at Berlin. Are you of the opinion that when he requested a change of position to the Ukraine, or the right to go to the Ukraine to see whether he would like to work there, that was the granting of that evidence that he was in bad repute at the Ministry of Justice?
A. I was not speaking about the Ukraine before, but about Cuhorst's desire to become District Court President in Austria. However, I do know that for a short time Cuhorst was on leave in order to go to the Eastern Territories. Whether that happened to be the Ukraine, I don't remember. He wanted to inform himself as to whether he would find employment there that would suit him. I don't know whether the reason for this desire was that he knew he was in bad repute with the Reich Ministry of Justice. Cuhorst never spoke to me about that. At least, I do not recall such a conversation.
Q. You testified, did you not, that he was in bad repute with the Reich Ministry of Justice?
A. Well, "in bad repute" is perhaps saying too much. When I was examined by the defense counsel I testified that probably-
THE PRESIDENT: It is necessary to repeat what you testified to; we heard it. If you wish to explain it, you may.
BY MR. LaFOLLETTE:
Q. Was he in bad repute or wasn't he?
A. Well, it all depends on what you mean by "bad repute". I mean, the Reich Ministry of Justice, perhaps, did not take him quite seriously, because, due to his early membership in the Party, he received a very high office while he was still very young. And then in the course of years, without doubt, the Criminal Division of the Reich Ministry of Justice did not like him because he did not comply with their desire to make the jurisdiction mo e severe.
Q. Well, on the 15th of April, 1943, you remember writing Ministerial Counsellor Dr. Koehler in Berlin, in which you said that the Gauleiter would have no objection to Cuhorst being given a job anywhere else, but that they did not want him. to have another job in Wuerttemberg? Do you remember that letter?
A. At the moment I do not recall that letter, but I believe that that was actually in accordance with the opinion of the Gauleiter (Document submitted to witness).
Q. Will you examine that photostat of your letter? Did you write it?
A. Yes, I did.
Q. Thank you.
MR. LAFOLLETTE: The prosecution offers as Prosecution Exhibit 577 the document NG-2319, the original.
THE PRESIDENT: The exhibit is received.
BY PR. LAFOLLETTE:
Q. Now, witness, was the Gauleitung the political leadership corps of the Gau ?
A. Yes, it was.
Q. You know, do you not, of the letter that the defendant Cuhorst wrote on the 27th of April 1943 to this same Dr. Koehler, in which he expressed the desire: "Furthermore, I would like very much to go to the seat of the Gauleitung, inasmuch as I have been a member of tho Gau staff in Stuttgart since tho end of 1932."
?
A. I do not know that letter, nor can I recall that Cuhorst discussed it with me, but nevertheless, it is possible. Cuhorst was very excited at the time, and he was angry because Koehler had told him that he did not know anything about Cuhorst being interested in the position of President of the District Court of Appeal in Ravensburg. It is possible that Cuhorst also told me at the time that he had written to Koehler, but I don't remember.
Q. Well, what I am asking you is this. If Cuhorst himself asked to go where there was a seat of a Gauleitung, you wouldn't say that his experiences in Wuerttemberg had in any way lessened his ardour to be a member of the Party Leadership Corps wherever he might go. That is correct, isn't it?
A. As far as I know, as a Gau Speaker he belonged to the staff of the Gauleitung. However, as far as I know, he had a rather subordinate rank.
MR. LAFOLLETTE: The prosecution offers document NG-2321 as Prosecution Exhibit 578. It is a letter from Cuhorst.
THE PRESIDENT: The exhibit is received.
BY MR. LAFOLLETTE:
Q. Now you testified, Dr. Kuestner, that Dr. Schlegelberger represented a high official of the old type and attempted to safeguard the dignity and character of the Reich Ministry of Justice. Did you approve of that conduct of the Reich Ministry of Justice by Dr. Guertner?
A. People from the Provinces, of course, did not have the necessary knowledge and information to be able to form a correct judgment, and also, we probably did not know the difficulties that prevailed, particularly in the Central Office, regarding the continuation of the old course, if I way say so.
We in the Provinces way have had an easier time of it.
THE PRESIDENT: Could you answer the question as to whether you approved of the conduct of Schlegelberger as you described it?
MR. LAFOLLETTE: That is what I was just going to ask him, Your Honor.
THE WITNESS: I don't know whether it is possible here to give a total opinion just like that. In some things, of course, it would have been desirable -
BY MR. LAFOLLETTE:
Q. Excuse me. You approved of Dr. Schlegelberger, you just testified here; is that right ? Do you stand by your testimony that you gave about Dr. Schlegelberger? Yes or no?
A. Yes, yes.
Q. All rights If you approved of Schlegelberger, did you or did you not approve of his conduct in the Ministry of Justice?
A. I believe I did not express a general approval. If I expressed my opinion-and I believe that I did that before it was possible that Schlogelberger did do that, in accordance with a difficult situation.
Q. Now, you made regular reports, as the President of the Oberlandesgericht at Stuttgart, to the Ministry of Justice, did you not?
A. Yes, I did.
Q. I will hand you on, that you made on the 30th of November 1932, after Dr. Thierack come in.
THE PRESIDENT: You mean 1942?
MR. LA FOLLETTE: Yes, 1942; I beg your pardon.
(Document submitted to witness.)
BY MR. LA FOLLETTE:
Q. That is marked there. Do you find what I find there in the third paragraph?
"The news of the appointment of a new Reich. Minister of Justice and a new Undersecretary of State has given a fooling of relief to all jurists. Everywhere prevailed the opinion that things could not have gone on much longer as they did."
Did you fool that way when you wrote that letter?
A. Well, I believe the report was somewhat colored. The situation that there was no minister at all--that is, permanently--was regarded as untenable. We were under the impression that as Dr. Schlogelberger was only in charge of the ministry as feting Minister, without being a minister himself, he could not act in the same manner. Also, which is not expressed here, but which was mainly behind it, was Dr. Freisler's disappearance.
Q. Dr. Freisler is dead, isn't he?
Dr. Freisler is dead, isn't he?
A. Yes, yes.
THE PRESIDENT: He left the Ministry?
MR. LA FOLLETTE: That is about the same time, Your Honor. He went to the Presidency of the People's Court when the defendant Rothenberger was made Undersecretary.
THE WITNESS: Yes, that is right.
BY MR. LA FOLLETTE:
Q. "Everywhere prevailed the opinion that things could not have gone on much longer." Do you refer to the attitude towards severe sentences of the then existing or the previous Minister of Justice which Hitler had denounced on the 25th of April, 1942? Did you agree with Hitler's policy; his complaint?
A. Never. I can say that when I heard that speech over the radio at that time I almost blushed with share that it was possible to make such a speech at all.
Q. Now, the essence of the speech was that the penalties being given were not severe enough for war-time. Is that right? Is that your understanding of it?
A. Yes--well, at that time I cited a particular example, and then drew some conclusions on the basis of that.
(Document submitted to witness)
Q. Now, in discussing severity of sentences, on the 2nd of March, 1940, I ask you to turn to the second paragraph and I will read what I have translated from that paragraph that is marked:
There exists no doubt among lawyers and that section of the population which is interested in the Administration of Justice that during the war public enemies have to receive the most severe penalties and, if necessary, must be exterminated from the human community."
Do you find that there?
A. Yes, I have found it.
Q. I thought you testified that about the tiro that Cuhorst was selected, you told him in Berlin that you could not him anyone in Wuerttemberg who would want to exterminate people from the community.
Why didn't you take the job yourself?
A. Yes, but I ask you to read also the following sentence.
Q. Yes, I want you to.
THE PRESIDENT: I haven't been exactly informed as to who is supposed to have written this.
MR. LA FOLLETTE: I beg your pardon, Your Honor. I asked him if he sent in a situation report in March of 1940, I thought. I an sorry. This is in the witness's own handwriting. I am very sorry.
THE WITNESS: That is a report which I made.
BY MR. LA FOLLETTE:
Q. Yes. Read it: "However, political or SA leaders...." Go on, read that.
A. However, political leaders or SA leaders who, for any reasons whatsoever, repeatedly attended a trial before the Special Court, later stated that in such and such a case they did not understand the high penalty that was pronounced, or the high motion for a penalty which the prosecution made. I must confess that sometimes I have had a similar impression, particularly in the application of Section 4 of the Decree Against Public Enemies. It may be exaggerated, if occasionally, it has been said that the offender today cannot know any more whether he will come off with a fine or risk his head, nor is it of first-rate importance what the offender thinks; but it is not without significance that spectators rt the trial, whose"sound sentiments of the people" cannot be denied, have similar thoughts".
Q. Yes. Now, having made that report of the 2nd of March 1940, from which you have just read, and your report of the 30th of November, 1942, which you first read, can you explain to the Court now what you meant when you said in your report of tho 30th of November 1942 "Everywhere prevailed tho opinion that things could not have gone on much longer as they did"? Did it have any reference to tho sentences that were given under Schlegelberger's regime?
A. No, I do not believe so. As I have already stated, it was regarded as a lack that there was no real minister who could, of course, have faced tho Party in quite a different manner.
Q. You testified that you, as the presiding judge, were open to tho information which as received from judges and lawyers generally in the community.
A. Yes.
Q. Do you remember a situation report which you wrote on tho 5th of September 1941?
(Document submitted to witness)
May I read to you where it is marked on that report, beginning:
"Firstly, the Reichsstatthalter, in his capacity as Reich Defense Commissioner, confiscated for the land of Wuerttenberg, the Untermarchtal Convent with its entire assets." Do you find that?
A. Yes
Q. Will you read that please?
A. "Firstly, the Reichsstatthalter, in his capacity"-Tho report starts: "Recently two occurrences in my area have created a sensation. Firstly, the Reichsstatthalter, in his capacity as Reich Defense Commissar, confiscated the Untermarchtal Convent with its entire assets, among them bad Ditzenbach and a large hospital in Stuttgart." It says "confiscated for the land of Wuerttemberg" in quotes. Then it goes on, "... because the Convent is charged with having committed considerable offenses against the instructions..." etc.
Q. A little slower please. If you dont mind; you can read rapidly, but we have to talk.
Now, "An investigation...."
A. "An investigation concerning these contraventions is at present being conducted by the prosecution of the Special Court of Stuttgart. The confiscation has created a Sensation, especially in Catholic circles. They do not regard it as a disciplinary action against guilty individuals, but as a blow against the Catholic Church as such."
Q. Yes, thank you.
You acquired that information in your position as a judge, did you not?
A. At that time apparently no indictment had been filed yet, and officially I could not have received that information as yet. However, I probably just heard it in the course of conversation, and because this occurrence created a considerable sensation, and in particular because the legal basis was quite hazy, I put "confiscated for the land of Wuerttomberg" in quotas in this report. Therefore, I reported this case to Berlin.
Q. Yes. Now, with reference to the question of the severity of sentences, which you said did not exist in Wurttemberg, let's turn to your report of the 4th of December 1943. You made one then.
A. The 4th of December?
Q. The 4th of December, 1943.
Now, on page 2 of the original I find a rather substantial paragraph, which is marked, and which begins---it is mark on there:
"In the present stage of the war the prosecution of malicious undermining and defeatist remarks is one of the most important tasks of the competent courts."
Court No. III, Case No. III.
A. Yes.
Q. Would you read that down practically to the bottom of the page, down to the sentence which ends "from a fine to the death penalty."
A. "In the present stage of the war, the prosecution of inciting, undermining and defeanist remarks is one of the most important tasks of the competent Courts. Should the courts fail here, there would be a danger of internal domestic conditions arising such as in the fall of 1918. A certain difficulty arises from the fact that apparently a uniform treatment has not yet been achieved. On the one hand, we have the jurisdiction of the People's Court punishing such remarks sometimes, as favoring the enemy, with the death penally. On the other hand, not infrequently quite similar remarks cone to the Prosecution Office at the Special Courts which in their case reports to the Reich Ministry of Justice often express the opinion that undermining of military morale did not exist for some reason or other or, at any rate, could not be proven; they therefore suggest to order the prosecution under Section 3 of the Malicious Acts Law. The Reich Ministry of Justice tacitly approves of this attitude by ordering the prosecution under the said provision. There is a grain of truth in the opinion, occasionally heard as a jocular exaggeration, that a certain remark could lead to any punishment, from a fine to the death penalty."
Q. Thank you.
THE PRESIDENT: That is from one of your reports, is it, Witness?
THE WITNESS: Yes, it is.
MR. LA FOLLETTE: 4 December, 1943.
BY MR. LA FOLLETTE:
Q. Did you do anything to correct that situation that you reported?
A. These situation reports, of course, were drawn up out of tactical consideration. The opening sentence often sounds very severe, but then it is followed by the limitation, and these are the main thing. These situation reports are a peculiar thing altogether. I recall a conference in the Reich Ministry of Justice when Dr. Freisler, who presided over it, severely criticized our situation reports. Later on I did not write any more situation reports at all. If I may add, the focal point was not constituted by these general reports but by the daily routine.
Q. I hand you a situation report, yours of the 10th of July, 1940. Now in the second paragraph you find -
THE PRESIDENT: May I suggest -
MR. LA FOLLETTE: Yes, Your Honor?
THE PRESIDENT: -- that the Tribunal is not at liberty to treat a situation report or a letter as being the letter er the report of this witness, merely because counsel says so. I am not suggesting that counsel is in error, but will you kindly ask the witness if it is his report, instead of merely stating it as counsel. Then the record will be clear.
THE WITNESS: The report is mine. It originated from me.
BY MR. LA FOLLETTE:
Q. All of those you read from were made by you, were they not, this morning?
A. Yes.
Q. Let's read just this paragraph, the second paragraph that is marked. It begins, I think, on the 4th line from the bottom of the German text. "Even those circles who perhaps up to now had not found such inner contact with National Socialism--" Do you find that?
A. Yes.
Q. Will you read that?
A. "Even those circles who perhaps up to now had not found such inner contact with National Socialism now unreserved by acknowledge the Fuehrer's greatness and the successes achieved by National Socialism. But it must not be overlooked that the Roman Catholic clergy, for all their reserve, still adheres to its attitude of opposition. At the Special Court in Stuttgart some serious cases against Roman Catholic priests are pending (listening to foreign broadcasts and malicious attacks)."
Q. May I ask you, in preparing your situation report, did you consider it proper to out in matters that were of importance in your Oberlandesgericht district so that you could advise the Ministry of Justice of that?
A. Yes.
Q. So that the things you reported, in your opinion, were matters of importance to the Administration of Justice in our district?
A. They were supposed to be general reports about the general situation.
Q. Because they were of interest to the Administration of Justice?
A. Yes.
Q. I shall hand to you a situation report which purports to be made by you on 6 November 1940 and ask you to look at that, and did you make it?
A. Yes.
Q. I won't bother you with.the first paragraph which is marked, but I wish you would begin with the second paragraph, 5th line from the bottom in the merman text, which begins, "Lately various presidents of District Courts have "mentioned the extermination of insane people."
A. Yes.
Q. Will you read that?
A. Yes, I have found the passage. "Lately, various presidents of District Courts have mentioned ti.e extermination of insane people in Grafeneck, not because they only found out about it now, but because gradually serious uneasiness is spreading among the population. The knowledge of these facts is reaching wider and wider circles. Children bring such information home from school or from the street.
"These matters are discussed a great deal, and especially serious cases are talked about again and again, for example, that there are also veterans who were injured during the war and who have had to be cent to institutions and that they, too, are affected by these measures.
"Very dangerous in the rumor at present in circulation, 'Now after the insane have been disposed of on the whole, it would be the turn for the old and infirm.' It is obvious that here where everything is to be done secretly, such romors start easily and are spread.
"The legal sentiment of the people should not be underestimated. The population says: Is everything done fairly here? Who is responsible? What security exists? What safeguards exist that the limits will not be exceeded, etc? A clear word, clearly underlined, a clear regulation seems to me urgently necessary. Similar doubts also are awakened to among the population by the informations issued from time time by the Reichsfuehrer SS that somebody or other was shot because of resistance. I don't believe that anybody in the population believes in that resistance any longer. And even though as a rule they are probably habitual criminals whose personal fate is not of interest to anyone, the population "Nevertheless does ask, on what law this action is based, and what the Administration of Justice is there for, any way?
That this is a question which touches the roots of the Administration of Justice, and not only the Administration of Justice, I do not have to go into any further."
Q. I think that is fine. Now let me ask you, when did you. receive your meritorious war Medal, Second Class, in 1942? Do you remember?
A. Yes. I did pot participate in the war, so I did not nave the Iron Cross. It must have been the Meritorious War Service Medal, Second Class. I don't know when I received it.
Q. I beg your pardon. I thought I said Meritorious War Medal. I meant to say Meritorious Mar Medal Second Class. When did you get it?
A. I don't remember any more.
Q. Would it be in the spring of 1942?
A. It is possible; that happened in the proper order.
THE PRESIDENT: We will recess until 1:30 this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing recovered at 1330 hours, 4 September 1947.)
THE MARSHAL: The Tribunal is again is session.
DR. BRIEGER: May it please the Tribunal, may be permitted before the session continues, to put a brief question to Mr. LaFollette concerning a statement which he made this morning.
Mr. LaFollette, if I understood you correctly, you said this morning that the affidavit mas taken of Gramm because it was not possible to hear him as a witness on that subject. Was that about what you said, because the witness wasn't available, or something like that?
MR. LAFOLLETTE: Of course, the situation was this, Your Honor. The witness came to testify on behalf of the defendant Schlegelberger. After his testimony the affidavit was taken. We had no opportunity then to put the witness on. I am aware of the fact that if I possibly can, I must bring him back in rebuttal, but the circumstances were such that we couldn't offer him as a witness.
DR. BRIEGER: That is what I wanted to make clear, to have stated that he was examined here and immediately thereafter was taken. Thank you.
DR. OTTO KUESTNER- Resumed CROSS-EXAMINATION - Continued BY MR. LA FOLLETTE:
Q. Dr. Kuestner, do you know a man named Dr. Aleis Meisenhelder who served as a judge from time to time June 1942 at the Special Court Stuttgart?
A. Yes.
Q. Did you know that he formally objected to being asked to serve with the defendant Cuhorst?
A. Of that I do not have the least knowledge.
Q. And you didn't know that he asked to be removed because he could n't sit on the same court with the defendant Cuhorst because of his treatment of his associate judges when they disagreed with him? You don't know anything about that?
A. No, of that I do not know anything, either. I knew that Dr. Meisenhilder after some time asked to be transferred from the Special Court. As far as I remember, he joined the Prosecution of the Special Court. What the reason was for his request, I no longer know. But it is certain that to no ho did not state the reason which has just been mentioned.
Q. You succeeded Dr. Hess as president of the Oberlandesgericht. Stuttgart, did you not?
A. Yes.
Q. Did or did Has resign in protest ever being required to name Cuhorst as the President cf the Civil Senate?
A. Hess himself when he told me that he had offered his resignation, said that he could not be president of the court if at the same time a young and inexperienced an as Cuhorst was the presiding judge of a Senate.
Q. And the thereafter you accepted the appointment?
A. Yes.
Q. Is you proceeding before the Spruchkammer ended?
A. No.
MR. LA. FOLLETTE: That is all.
DR. BRIEGER: Just a few questions in re-examination May I be permitted to do so?
REDIRECT EXAMINATION BY DR. BRIEGER:
Q. First, to refer to the last question put to you by Mr. La Fellette, are you incriminated politically in any other way than by the fact that you were President of the District Court of appeals?
A. Yes. According to the purge law, also by the fact that I was a member of the NSDAP since the first of May, 1933 Recently the Public Prosecutor in Stuttgart told me that that there was nothing else against me.
Q. Men in your position, that is to say the presidents of District Courts of Appeals always had the reputation that they were expected to be some sort of diplomats, is that correct, or did I have to add another question?
A. It is quite true. In an office such as that of the President of the District Court cf Appeals, particularly during those years, one had to sue a lot of tact and diplomacy.
Q. Accordingly, when you made the reports to the Reich ministry did you had to compose them in a such a manner that you did not make your own position untenable, that is, you desired to -remain in office?
A. Well, I should like to put it this way. Frequently it was necessary if one wanted to achieve a certain purpose, to use a great deal of diplomacy and tact. It was not a question of remaining in office,but of achieving one's purpose. For instance, if it was a matter of the promotion of an official who was not a party member, the it was necessary to explain in the reports in detail what a good National Socialist he really was, so that a promotion which, for purely objective reasons, one considered right, would be successful.
Q. Could that happen also in cases where in your own mind you were convinced or at least where your opinion was that the man certainly was not a reliable National Scialist?
A. Certainly.
Q. The Prosecutor has submitted a document here concerning the Untermarchtal proceedings. Witness, did Cuhorst have anything at all to do with the confiscation of the convent?
A. Of that I just don't happen to know anything, but I do not believe that Cuhorst had anything to did with it.
THE PRESIDENT: If you don't know, that is the end cf the answer.
BY DR. BRIEGER:
Q. When did President of the District Court of appeals, Hess retire?
A. That must have been at the end of 1934.
Q. When did Cuhorst take over the Special Court office?
A. In the fall of 1937.
DR. BRIEGER: Thank you. That is sufficient.
THE PRESIDENT: The witness is excused. Call your next witness.
DR. WILLY SCHORECK, a witness, took the stand and testified as follows:
JUDGE BLAIR: Hold you your right hand and repeat after me the following oath:
I swear by God, the Alright and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated tho oath)
JUDGE BLAIR: You may be seated.
DIRECT EXAMINATION BY DR. BRIEGER:
Q. Your Honors, I ask for permission to examine my witness, Dr. Scherck. Doctor, may I ask you to tell the court your mane -- that is, also you first mane--the lace and the date of your birth.
A. Dr. Willy Schoeck; born the 27 August 1901 in Stuttgart, living at Stuttgart, Tayerstrasse 10.
Q. Are you a free man or are you imprisoned?
A. A free man.
Q. Were you a member of the NSDAP or its affiliations?
A. I was not a member of NSDaP. I was a sponsoring member of the SS from 1934 until 1939, with a monthly contribution of two marks.
Q. Your membership as a sponsoring member of the SS, does that mean an incrimination in the sense of law?
A. I do not believe so, since the contribution was too marks permonth.
Q. When was your profession in Stuttgart between 1933 and 1945?
A. I was an attorney with the District Court and District Court of appeals in Stuttgart.
Q. Were you also a criminal defense counsel?
A. Yes.
Q. Could you say that during those year you were on of the busiest defense counsel in Stuttgart?
A. I believe I can say so.