Q May I continue.
A Yes, please.
Q Did that step by Cuhorst mean for Diesem that he was excluded from the profession as a defense counsel in criminal cases altogether; or only before the special court or the penal senate, and, if so, for how long?
THE PRESIDENT: You have already covered that, have you not?
DR. BRIEGER: Yes. I don't believe that I covered it with this witness.
THE PRESIDENT: I thought you had.
Q Is it correct that after a very short time -- I believe I can skip the next question too. Please comment on the attitude of Cuhorst concerning the manner in which he treated defense counsel who presented their pleas before the court.
A In my affidavit I have already stated that for an attorney it wasn't easy to stress his points in a session under Cuhorst. He demanded of a defense counsel that he should be as brief as possible and restrict himself to purely objective points of view, technical points of view. Defense counsel who did not do that were exposed to a certain amount of danger of being interrupted by him.
According to your observations and experiences, did he cut you off from any further presentation; did it go that far?
A I did not experience a case of that kind.
Q What was Cuhorst's attitude concerning the presentation of facts by the defendant?
A The same thing that he expected from the defense counsel, Cuhorst also expected of the defendant. A brief presentation and purely technical, relevant statements.
Q Did Cuhorst only get excited hen defendants liked to him; or, did he got excited for other reasons - - just trifles?
A That question is very hard to answer. A thing which might be considered a trifle by one person might not be considered such by somebody else. Cuhorst got particularly excited and angry if he had the impression that he was quite obviously being lied to.
Q How did Cuhorst treat the witnesses?
A I have to repeat what I said concerning the defense counsel and the defendants; he expected them too to be brief and to the point.
Q Did Cuhorst interrupt defense counsel when they were about to present something that was really relevant?
A That term of relevancy is difficult to define. I didn't have the impression that a person was interrupted who presented anything relevant in a concentrated form.
Q Were defense counsel prevented from studying files which they needed for the proceedings in a malicious way?
A I cannot think that anything malicious might have occurred, but I have to say that I myself, time and again, had to conduct a struggle in order to get the files. The files were in some cases given to us only for a very short time so that a study of these files was made very difficult if defense counsel had other work and was heavily over-burdened. As I have said, I frequently complained about that point.
Q Is it your opinion that in criminal cases if the trials lasted longer -
MR. LA FOLLETTE: I object, Your Honor. I didn't hear that question.
THE PRESIDENT: We haven't heard the question yet.
Q Is it your opinion - did Cuhorst have a good knowledge of the files?
THE PRESIDENT: Did he have a good knowledge of the files?
A From the fact that he frequently stated that he himself needed the files before the trial, I had to conclude that he read them too. I found it out frequently from the fact that the files had remarks in his handwriting on the margin.
Q Well, in the trial concerning treason, the Mannheimer case and Jatzek, were you defense counsel - did you defend in the Mannheimer case?
A Yes.
Q Describe, please, your impressions whom did you defend?
A I defended the defendant jetzek, J-a-t-z-e-k, as appointed defense counsel. Jatzek was sentenced to death in that trial. On the day after the sentence was pronounced, I went to see him in the prison and told him that I was going to submit a clemency plea for him. Jatzek told no that I should refrain from doing so. When I risked him why he wanted me not to do that after he had been sentenced to death, he told me that he had covered up for five others.
Q By way of explanation to the Tribunal, these statements refer to the Case No. 20, out of the list of cases of Cuhorst.
Witness, you have submitted an affidavit for the prosecution. Do you intend to add anything, also concerning the interrogation?
A No.
Q Have you ever heard that Cuhorst during his work with the Special Court or the Penal Senate attended executions?
A I never heard anything about that.
Q No observations of your own, if I understand you correctly.
A Observations of my own I have not made either, particularly because during the last years before the collapse executions were carried out with neither the court nor the defense counsel in attendance.
DR. BRIEGER: May it please the Tribunal, I have come to the end of my examination. Thank you, witness.
THE PRESIDENT: Is there any other direct examination? There appears to be none. You may cross examine.
CROSS EXAMINATION BY MR. LA FOLLETTE:
Q First, witness - Dr. Schoeck - that is the witness' name?
A Schoeck, S-c-h-o-e-c-k.
Q Please, Dr. Schoeck, I would appreciate it if you would turn around so you can look at me. I can't interrogate with your back toward me. Thank you very much. You testified that in your opinion Cuhorst never reached a wrong conclusion on the law. You remember the Louise Togni case?
A I remember that case. I had a ---
Q That is all I wanted to know. I just wanted to know if you remembered it; then I will ask you some more. Were you first employed to represent her?
A No, I was not - well, I was not appointed defense counsel - not by the court.
A I am not talking about the court. Were you employed to represent her; I don't care by whom.
A I was ordered by the Italian Consulate in Stuttgart to defend Italian citizens who were residents of Stuttgart -- unless they wanted a different defense counsel.
Q Yes. Now, then, did you write to a lawyer by the name of E. Muff and ask him to take over the defense?
A Yes, I did.
Q Now, let me - you had a file on this case, didn't you? Let me hand you your file on it. Now, you will find a copy of a letter by Attorney E. Muff, dated 25 September, 1944; that is your file case, is it not?
A Yes.
Q Do you see the letter from the Attorney E. Huff?
A Yes.
Q I wish you would look at the second paragraph, which in the translation I have begins - the letter of Lawyer Dr. Schoeck to me with request to take over the defense of Togni - do you find that before the Special Court in the session of the 21st of this month, was received here in time by the 18th of this month. Do you find that sentence?
THE PRESIDENT: What month is that?
MR. LA FOLLETTE: The letter is dated. 25th of September, 1944, Your Honor.
THE PRESIDENT: Isn't that after Cuhorst left?
MR. LA FOLLETTE: No, Your Honor. He didn't leave - he testified about this case that he tried it - he left in November, 1944.
THE PRESIDENT: It has been stated that he was at the disposal of the armed forces in September.
MR. LA FOLLETTE: But he didn't leave, Your Honor. I think the defendant testified that he tried this case.
Q Will you continue to read then down to where it says -- where I stopped, if you please. Read it slowly and then we will get the translation; I haven't any other translation.
A I read, the second paragraph of that letter, the letter by Attorney Schoeck to me, with the request to take over the defense of Togni before the Special Court in the session of 21st of this month was received here in time by me on the 18th of this month. Because I was prevented by a session out of town of the local civilian chamber I was forced to hand the brief as well as my case file to the very reliable Attorney Dy. Krauss, whose special attention I directed to the latest publication of a Reich Supreme Court decision concerning paragraph 1 of the public enemy decree, which is favorable to the defendant - to the case of the defendant. Attorney Krauss in the trial of 21 September emphatically pointed out this decision of the Reich Supreme Court which according to our opinion should have been applied beyond any doubt as to the facts established in the trial before the Special Court. The Special Court has refused, however, to adopt this legal viewpoint of the Supreme Court as not corresponding to the sentiment of the people. That is, in fact, how Togni was sentenced to death.
Q Thank you. Now then, did you write a letter on the 6th of October, 1944, I believe to the Italian Consulate. Do you find it there. The 6th of October, 1944; I think you will find you discussed the same question of law and the ruling of Cuhorst. It is a copy of your letter, Dr. Schoeck.
A Of the 27th of September 1944 -
Q No, 6th October, 1944. It is right in your file; it was addressed to the Italian Consulate; it should be at the top - right behind the letter you read; right underneath the letter you read. There it is.
AAfter the letter I have read, there is in the file the clemency plea to the Special Court; that is of the 6th October, 1944.
Q That is the one, on Page 2. Didn't you discuss this question of the law as laid down by the Supreme Court?
A That is right, on Page 2.
Q Will you read it?
A On the bottom of Page 2.
Q Thank you - slowly.
AAs a result of the facts established by the main trial, the sentence should not be without possibility of doubt, from the legal point of view, at any rate not comparable with the decision of the Reich Supreme Court of 23 May, 1944 which was published in "Deutsches Recht" of 1944 on Page 166. The Supreme Reich Court quite justly emphasized that the objective prerequisites for the applicability of Paragraph 1, Article 1 of the Public Enemy Decree, was the fact that the belongings were left without protection, but that that fact must have come to the attention of the offender; that is not the case here.
Q Now, can you tell from that letter also - I don't want to ask you to read it - did you call upon the court to discuss or deposit your clemency plea. Do you remember what judge wrote the opinion.
A I don't know what decision the court made thereupon. It may be that it can be found in the files which I no longer have, and the contents of which I don't remember any more in detail.
Q All right. May I just ask you, Dr. Schoeck, one thing more, and it should be close to the top of your file. There is a letter dated 15th of December, 1944, from an under secretary of state in the German foreign office, named Steengracht, addressed to the Italian Consulate, which describes how it was necessary for him to intervene in order to obtain a pardon for Togni. Do you find that letter in your files as Attorney for Togni?
I believe it was on a heavy sheet.
A Yes. It is a copy of the letter of the 15th of December 1944 addressed by the Under-Secretary of the Foreign Office to the Italian Ambassador in Berlin.
Q Would you read it slowly, please?
A "My dear Ambassador: In reply to your letter of the eighth of this month, No. 11482, concerning the sentence against the Italian female laborer, Louisa Togni, I may inform you that the foreign office emphatically intervened with the competent authority for the commutation of the death sentence to an appropriate prison term. I have all hope that this request by the foreign office will be granted and I may, as soon as I have final information about the outcome, be permitted to inform you thereof. I ask you, my dear Ambassador, to accept the expression of my sincerest esteem. Yours, Steengracht."
MR. LA FOLLETTE: I have no further questions.
DR. BRIEGER: Just a few questions concerning the case Togni, which is case No. 43 of the list of Cuhorst cases.
REDIRECT EXAMINATION BY DR. BRIEGER:
Q Witness, do you happen to know in detail in what manner Cuhorst participated in clemency matters or what his personal attitude was?
AAs far as this one case is concerned. I don't know anything about it.
Q Do you happen to know who the gentlemen were at the Reich Ministry of Justice who had to do with it?
A No.
DR. BRIEGER: Thank you.
THE PRESIDENT: The witness is excused. Dr. Brieger, did we understand you to saw that it would meet with your personal convenience if the two witnesses of the prosecution were examined this afternoon?
DR. BRIEGER: Yes, it will, Your Honor.
THE PRESIDENT: Would you like to have that done now?
DR. BRIEGER: Yes, surely, Your Honor.
HANS WILLI LODUCHOWSKI, a witness, took the stand and testified as follows:
BY JUDGE HARDING:
Q Will you repeat this oath after me:
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 HARDING: You may be seated.
DIRECT EXAMINATION BY MR. LA FOLLETTE:
Q Will you state your name, please?
A Loduchowski, Dr. - first name Hans; middle name, Willi.
Q Dr. Loduchowski, you came to render service at the Second Civil Senate of the Court of Appeals at Stuttgart in what year?
A In the year 1943. January, 1943.
Q Do you know the defendant in this case, former Special Court President Cuhorst?
A Yes. I don't know him personally, that is, he doesn't happen to know me personally.
Q Will you tell the Court where you see him sitting in this dock?
A Yes, the third from the right.
Q Now, while you were at Stuttgart were you in a position at any time to overhear any conversations between this defendant Cuhorst and members of the legal fraternity and profession at Stuttgart?
AAs referendar I only worked for civil courts but since, as a special duty scout -- the word "scout" has a bad taste and does not quite apply here - I acted for various organizations and that as far back as in the year 1933. For that reason, because shortly after I arrived in Stuttgart I heard about Cuhorst and had been warned against him, I became very interested in the man and his work. That also for another reason, because I did some research in the field of criminal law - I made some research especially as far as serious crimes were concerned in which I was interested - I made studies about the death sentence.
I have published the results of these studies in book form and prepared myself to make a thesis in that field. So, especially in the field of criminal law I can say I was well-informed. I was interested in it and I was also interested to find out what Cuhorst, as a penal judge, was doing and whether what I was told and what I was told particularly by way of a warning against Cuhorst was true. Therefore, because as referendar I still had plenty of time in spite of the fact that it was shortly before my examination, I frequently went to attend sessions where Cuhorst was presiding judge.
Q Now, just a minute. Did you see him preside in cases over foreigners?
A Of course, considering the large number of cases I can no longer give the names, apart from a case which was not the case against a foreigner, against an alleged murderer, Kappler. However, I do remember cases where foreigners presumably from eastern Europe, that is to say, Poles, Czechs, Russians, were indicted, as far as I remember, for looting. I do not know with absolute certainty whether Dr. Cuhorst presided in a case against a man from Luxembourg who, for alleged desertion, was to be sentenced.
THE PRESIDENT: One moment. Will you restrain yourself and just answer the questions that counsel asks you?
BY MR. LA FOLLETTE:
Q Just listen carefully.
A Yes.
Q From these cases that you saw, will you describe to the Court the conduct of trials against these foreigners very briefly, if you please, with reference to whether or not they were abused, whether they had the opportunity to understand the language, whether they were furnished with defense counsel? Answer these particular three questions.
AAs far as I remember, every defendant had a defense counsel before the Special Court. That also referred to foreigners. Every foreigner, of course, had an interpreter. The interpreters were, as I know, Gestapo officials. I remember one case where a young defendant - if I am not mistaken he was a Dutchman who did not speak a word of German at any rate did not understand German - was shouted at by Cuhorst because he expressed himself slowly and clumsily and was afraid. Cuhorst, in the Swabian dialect which at that time I did not understand very well, even used some insulting expressions, abusing expressions, so that the defendant in the end started to tremble and even to cry.
TEE PRESIDENT: We will recess for fifteen minutes.
(A recess was taken.)
MR. MARSHAL: The Tribunal is again in session.
BY MR. LA FOLLETTE:
Q: Witness, I want to ask you, where are you employed now and what are you doing?
A: At the District Court in Koblenz at the Civil Chamber.
Q: May I ask you whether or not you made it a policy, as often as you could, to get within hearing distance of the defendant Cuhorst as he walked about in the courtroom or near the courthouse at Stuttgart? Just that. Did you make it a policy?
A: Yes, as far as my time permitted me to do so.
Q: I will ask you whether or not you have heard him use this phrase; "Well, today we have only three cases. That must make at least two heads." Did you ever hear him say that?
A: Yes.
Q: Could you give the Court some idea of how often?
A: Well, when the session was supposed to start I was standing in front of Cuhorst's office, or near there, where he had to pass. I followed him or preceded him, and I heard the remarks which he made to his associate judges. At that time I repeatedly heard remarks to the effect, "Well, today we have to finish in a hurry, We have three cases. That will certainly result in two heads. Or, "Today another case is coming up; something will fall off again." Or, once a prosecutor or a judge asked, "A trial again?" And he said, "Yes; we will produce some heads for you." And once I recall exactly that he said, "Now, gentlemen, this is the end; on to the gay battlefield."
Q: May I ask you, is that "battlefield" or "slaughter"? Will you repeat that for the record please?
A: Slaughter field.
MR. LA FOLLETTE: It was "slaughter field", was it not, Miss Interpreter?
THE INTERPRETER: Yes, it was "slaughter field", yes; I am sorry.
MR. LA FOLLETTE: That was rather important for me.
BY MR. LA FOLLETTE:
Q: I will ask you whether you witnessed the Kappler trial in which a man was sentenced to death or killing a policeman, and how long that trial lasted.
A: That trial lasted, as I remember very carefully, for exactly 15 minutes. I am not mistaken; not 50, but 15.
Q: Now, I will ask you whether you ever heard the defendant Cuhorst use this statement, "Well, it doesn't matter if we do not get him; I will let him go up the chimney through the Stapo."
A: A similar remark was made by Cuhorst. He was standing on the follor near his office and was talking to some judges, or associate judges, about a case. He was talking softly in part so that I could not hear him, but in part he spoke loud enough. Apparently they did not agree as to the measures to be taken or as to the sentence to be passed. After a lengthy argument Cuhorst cut off the discussion He said, "It doesn't matter; it isn't of any Importance if we don't get him this way. Then I will let him go up the chimney through the Stapo." He spoke in the Suebian dialect, and I cant imitate him. "I will let him go up the chimney", that is what he said.
Q: Do you know what that term meant?
A: At first I didn't know it. At that time I had not heard anything about shooting people or burning them. I asked a colleague of mine at that time; I told him that Cuhorst had made this remark, and I asked him what it meant to "let him go up through the chimney."
My colleague told me, "Why don't you know? That is, the Gestapo burns the corpses it has murdered."
Q: Now, he seemed to be in a hurry, and impatient when he was conducting trials, did he not?
A: Yes, he certainly was. He hurried people up always, and he asked to expedite the case. He said, "We don't have time for lengthy nonsense."
Q: Again referring to the Kappler case, I will ask you whether or not he said, in substance, to the defendant and to his counsel, "Don't make any fuss today, we have no time."
A: And what was the extent of the defense, or the statement that his defense counsel -- Kapoler's defense counsel -- made then?
A: The defense counsel was apparently intimidated by this remark and answered, "Well, gentlemen, I am a defense counsel appointed by the Court. We have a clear case here, as the presiding judge says, What shall I do now? I can't do anything but ask that he be a tolerant judge."
That was approximately the entire plea made by defense counsel.
Q: Were you a member of the SA?
A: Yes, I was a formal member, since 1933.
Q: While you were in Stuttgart, or before?
A: No.
Q: Before that, yes?
A: No, not while I was in Stuttgart. I joined the SA in Koblenz, as I was asked to join the SA as a spy, let us say, and I was a so-called member until 1944, without rank only in the Central Intelligence Office, in order to be able, at this particular place, to investigate the plans of the SA and the Nazis on the whole, if possible, at first hand.
Q: I ask you whether or not, during these times, you were arrested three times by the Gestapo and your house was searched?
A: At my home there were searches made twice, once in 1933 and once in 1934. The Gestapo arrested me three times, that is to say, not with a warrant of arrest, but once when there was a procession by Catholic youth in Cologne, in which I had participated, and I became noticeable by remarks I had made, I was arrested and interrogated. Once I was arrested, on the basis of a denunciation, at the main station in Koblenz. The third time was after, let us say, a fight with an old Party member on the basis of my interference with his malicious remarks about ecclesiastical matters, and so forth. I was arrested by the Gestapo immediately after this fight which I had with him. However, probably because I seemed to be a member of the SA, it was very easy for me to extract myself from this affair, so that I was not in detention for a long time.
Q: When did you leave your work at Stuttgart?
A: On the 18th of August 1943, I took the big state examination, and one day later I left Stuttgart.
Q: And when did you come to Stuttgart?
A: That was at the end of January 1943. I believe it was approximately the 20th of January.
Q: So you were there from the 20th of January until the 20th of August, or six months; is that right?
A: Until the 19th of August, yes.
MR. LA FOLLETTE: I think that is all. You may crossexamine.
CROSS EXAMINATION BY DR. BRIEGER:
Q: Witness, I believe that you had forgotten to state your exact personal data. Please tell us again, in addition to your last name, your first name; and please tell us all of your first names.
A: Dr. Loduchowski, Hans, Willi, The name I am called by is Hans. I am 31 years old.
THE PRESIDENT: I wonder if we could have the spelling of the last name.
THE WITNESS: Willi?
THE PRESIDENT: The last name.
THE WITNESS: Oh. My last name: L-O-D-U-C-H-O-W-S-K-I.
THE PRESIDENT: Thank you.
BY DR. BRIEGER:
Q: Where were you born, witness?
A: In Koblenz.
Q: Please?
A: In Koblenz/
Q: Oh, you were born in Koblenz?
A: Yes.
Q: Did you state your exact date of birth?
A: 22 May 1916.
Q: 22 May 1916. Where did you study?
A: Only in Bonn.
Q: What did you say?
A: Only in Bonn, at the University of Bonn.
Q Who were your professors of criminal law there?
I can't understand you, witness, please speak a little louder It is impossible to understand you.
A Professor Count zu Dona, and Professor von Weber, manily. Of curse there were others too. Professor Kugler.
Q where did you take your Referendar examination, and what was you grade?
A Before the District Court of Appeal in Cologne, with the note "C", Sufficient, or "Passing".
Q And your big state examination? Where, on what date, and what grade?
A On the 18th of August 1943, before the District Court of Appeal in Stuttgart, with the Grade "fully satisfactory." Doctor's examination on the 19th of December, 1940, with the grade "good".
Q Where did you study?
AAt the University of Bonn.
Q Where did you write your Doctor's thesis?
A University of Bonn.
Q Who were your Referenten for your Doctor's thesis?
A Graf zu Donau and Dr. von Weber.
Q What grade?
A Good.
Q Where did you want to take your Doctorate?
AAt the University of Bonn.
Q You stated that your Doctor's thesis was published.
A Yes.
Q What was its subject?
A Crimes of killing in the district of Koblenz, murder, manslaughter, and the killing of children, from 1910 to 1939.
Q Who was the publisher?
A The publisher was Walter Biedermann, in Jena.
Q Was it necessary that your Doctor's thesis, when it was published, had to be submitted to the office for the Examination of National Socialist Literature, or something like that-- you know what I am referring to--in order to examine your thesis as to its National Socialist reliability?
A Not by me. However, in accordance with a directive, the University submitted every thesis that was published, as far as I know, to the RSHA of the SS. Professor von Weber twice returned my thesis to me because he could not assume the responsibility, with his name for what I had written in this thesis without endangering himself and me.
Q What was Professor von Weber's first name? Because there are several prominent men with that name.
A Hellmut, spelled with two "1's". He was from Jena.
Q Do you know where Professor Weber is living now?
AAt the present time he is Dean of the University of Bonn, the law faculty.
Q What was supposed to be the Subject of your professor's thesis? That is, of your habilitation thesis?
A The subject was not quite definite. It was supposed to deal with delicts, such as killing, and the penalty, and especially the value of the death penalty as a deterring factor, as well as the possible elimination of Article 217, the privilege of child murder. I don't consider that to be just.
Q What literature did you use mainly for your thesis? Did you, for instance, use list as to the attitude towards the death penalty?
MR. LA FOLLETTE: Just a moment.
Now I must object , Your Honor. I don't see that it is relevant or pertinent to his testimony.
Now just a moment, Dr. Brieger.
DR. BRIEGER: Pardon me.
MR. LA FOLLETTE: He has given all the answers that he could as to his preparation, and it wouldn't make any difference whether he had ever written a doctor's thesis if he can hear, and he heard what he heard and he testified to it. That is all I asked him.
THE PRESIDENT: I think that this is cross-examination to credit, and the objection is overruled.
BY DR. BRIEGER:
Q Did you use the writings by List for your thesis?
A When I took my oral examination I believe I stated 115; in my introduction I listed 115, and I believe the one by List too.
Q Do you know List's attitude to the death penalty? Are you familiar with it? May I ask you to tell that to us?
AAt the moment-
Q Did you use a book that he published together with Aschenoff?
THE PRESIDENT: Just a moment. Did the witness desire to answer the previous question? Did you wish to answer that question?
THE WITNESS: If I am able to, of course, but of course I cannot remember individual writings in detail, or whether it was in this particular one. However, I used the Penal Code by List, and his other writings. I do not remember one hundred percent the individual views; of the authors, because there were very many points of view; at least at the moment I cannot recall that.
BY DR. BRIEGER:
Q You cannot state any details in regard to that question, witness?
AAt the moment I cannot recall what was List's view on that subject.
Q Professor Graf zu Dona knows you well? You would assume that?
A Professor Graf zu Dona knew me very well, but he is dead
Q Professor Weber, is he dead?
A He is living.
Q Oh, he lives.
May I know how old you were when you took your second state examination?
A In 1943 I Was 27.
Q May I know how old you were when you took your Referendar examination?
A That was three years before, 24.
Q Twenty-one?
A Twenty-four.
Q at 24 you took the Referendar Examination. Where did you join the SA?
A In Kbolenz.
Q In what year?
A October 1933.
Q October, 1933? In 1916 you were born; that means you were 17 years old.
A Yes.
Q Do you know the regulation that nobody who is under 18 is allowed to join the SA? How did you overcome the difficulty?
A I am very happy about that question. I can tell you that it was just my intention, as a 17-year-old, and than a member of a Catholic youth organization, not to join the Hitler Youth where I couldn't learn anything because I couldn't investigate anything there, but, in particular, to join a so-called military organization which at that time, so to speak, was above the Hitler Youth and which had a central intelligence office from which place I could gain my information at the source and forward that.