THE PRESIDENT: It will be received in evidence.
BY MR. LAFOLLETTE:
Q. Will you state your name to the court, please, Doctor?
A. Berthold Schwarz.
Q. And what is your profession?
A. I was Oberstaatsanwalt, Chief Public Prosecutor in Heilbroonn.
Q. You are retired, I understand?
A. Yes, I am.
Q. Will you state to the court your legal training and the Positions which you have held - particularly identifying the places where you held your legal positions.
A. In the year 1942 --- 1932 I mean -- I was assistant prosecutor in Stuttgart. In 1934 I became public prosecutor; at the Prosecution Stuttgart I was appointed prosecutor. There I worked until 1936. From 1936 until 1938 I was assistant expert referent at the General Public Prosecutor's Office in Stuttgart. From 1938 until 1941 I was with the Chief of Counsel with the Prosecution in Stuttgart at the Special Court, as expert and representative of the prosecution. This activity was interrupted through my being drafted into the Wehrmacht at the end of August 1939. However, in February 1940 I was declared as unfit for military service. That was through the efforts of the prosecution in Stuttgart. Then I was, as I said -- I further worked with the prosecution in Stuttgart -- continued to work with the prosecution in Stuttgart until the end of 1940 or the beginning of 1941. Then I was again ordered to work in the office of the General Public Prosecutor as expert for high treason cases, for treason cases, for complaints, and for cases of honor, and cases against lawyers. About the Spring of 1942 I was transferred from this Division of the General Public Prosecutor's office which I just mentioned, which is called the Court Division, because of the work that is being done there, into the so-called administrative Division of the General Public Prosecutor's Office.
In the administrative Division of the General Public Prosecutor's Office I was mainly concerned, mainly working, with the clemency pleas and with the examination and submission of indictments and sentences to the Reich Ministry of Justice. In September 1944 I took this position. After the destruction of Heilbronn by air attacks on the 4th of September 1944 I transferred my office which had been destroyed by bombs, to Schwaebisch Hall. In Schwaebisch Hall I was still active until the American troops entered in the middle of April 1945. Then I was relieved of my office and returned to my family who are still today in Langenburg near Schwaebisch.
MR. LA FOLLETTE: Thank you. Now, May I say to the Tribunal that tho next now series of question are drafted for tho purpose of laying the foundation for tho later introduction of certain newspaper reports of eases as well also subsequently in this case against Dr. Cuhorst. I would like to lay a foundation to show why we cannot produce the records themselves. As to this witness I only want to go into tho natter which shows the connection between the newspaper articles and their accuracy and evidentiary value. Dr. Schwarz, is it correct to say that the President of tho Oberlandesgericht at Stuttgart as part of his actions of tho prosecutor's staff attached to the Court or one of tho judiciary?
A Yes, that's correct.
Q During tho tine that you were at Stuttgart was there such a press relations officer?
A Yes, that was tho Chief of tho Justice Press Liason Office.
Q What were tho duties of that officer with reference to furnishing information to the press as to tho facts in trials or in sentences or with reference to executions?
A The Chief of tho Press Relations Office in the Justice Department had as his tasks to have contact with tho press and above all to report to it the schedules of the Courts. From those generally, tho newspapers were--especially the Stuttgarter NS-Kurier -- tho newspapers were supposed to find out into which especially important trials and newspaper reporters had to be sent to attend. For this purpose the Chief of the press Relations Office in the Justice Department generally marked these case for special notice which probably would be of interest for the newspapers.
The Chief of tho Press Relations Office partly formulated press dispatches himself and sent then to tho newspapers. Probably, however, it was as follows, namely that tho newspaper reporters themselves in most cases wrote their dispatches. However, these dispatches had to be submitted to the Press Relations Office so that one can say that there was a censorship. After tho reports had appeared there were clippings made and these were sent to tho prosecution as well as to tho expert working on the case and into tho Court for their information.
Q Thank you, very much. Was the NS-Kurier -- was it or was it not the organ of the Nazi Party in Stuttgart?
A Yes, it was.
Q Did you official duties during the time that you were in Stuttgart bring you in contact with tho defendant Cuhorst?
A Yes, it did and that was during my activity as representative of the prosecution at the Special Court and also during my activities in the General Public Prosecutor's Office as representative of tho prosecution in matters of high treason and in treason -- because of treason cases.
Q Do you know any facts about tho defendant's membership in and his relative position in the Nazi Party at Stuttgart?
A Yes, I knew that Herr Cuhorst already before 1933 was a member of the Party. Ho was one of the few higher officials of tho Justice Department who were already before 1933 members of the Nazi Party.
Q When was the defendant Cuhorst made president of the Special Court at Stuttgart?
A I do not remember the year any more. However, I know that in 1933 Cuhorst was -- first came to the Ministry of Justice where, as far as I know he was Oberregierungsrat, Chief Government Counsellor, and in 1935, it may have been when he was appointed as President of the Senate at tho District Court of Appeals Stuttgart but I don't remember tho year exactly any more.
At the District Court of Appeals Cuhorst was at first Presiding Judge of the Senate that tried civil cases. After sometime he, however, became presiding judge of the First Penal Senate or Division. What year that happened, I don't remember either.
Q Than the defendant was President of the First Criminal Senate of the District Court of Appeals at Stuttgart and also president of the Special Court at Stuttgart most of the time you were there; is that right?
A Yes, I know that Herr Cuhorst was also Presiding Judge of the Special Court Stuttgart and that ho became such as successor of Landesgerichtrat Flachsland.
Q Have you seen the defendant Cuhorst open his court in the trial of criminal cases?
A Yes, I saw very many cases when I was prosecutor while Cuhorst was Presiding Judge.
Q Will you describe to the Court tho manner and the physical mannerisms in which he opened his criminal courts as Presiding Judge?
A Herr Curhorst was a person -- he himself was presiding and one person combined presiding judge of the Penal Senate of tho District Court of Appeals. The opening of the trial was done by him in a very strict manner. Ho waited as usual until all of tho judges had come from the judges' chambers and had taken up their places in tho Courtroom. It was prescribed by order -- decree of tho Reich Ministry of Justice that the German salute, tho Heil Hitler greeting, Was given by the entire court including the prosecutor and the Court-reporter and that this Heil Hitler greeting was answered by tho audience and by anybody else who was present in the courtroom. Herr Cuhorst, as I said, carried on this ceremony in an especially strict and formal manner. He raised his hand very quickly and I repeatedly noticed that in doing so ho clicked his heels very audibly. It always created a military impression.
Q In criminal cases what was his customary practice in fixing tho date for trial after tho indictment had boon lodged with tho Court under which he was proceeding?
A Herr cuhorst sot the date of the opening of the trials himself. Ho reserved the right to set them and he determined the dates of tho opening of the trial, even for cases where other judges presided with the exception of the Second Senate, Penal Senate President Kiefer. Ho sot then himself. Of course, there wore very many cases for which tho opening which had to be determined by Herr Cuhorst in a certain sense made his own time-table according to which the trial had to be conducted and as a rule the other presiding judges had to comply with his time-table.
Q With reference to the time that expires between tho lodging of tho indictment and tho time fixed by the defendant Cuhorst, was that long or short or was there a regular custom or what do you have to say about that?
A That differed quite a lot. It happened that an indictment was served which then stayed at tho office upstairs for weeks until tho date of tho opening of tho trial was finally set. Quite frequently Cuhorst lot a largo number of cases co-incide. Especially cases in which tho Special Court or the Penal Senate intended to go to tho place of the crime in order to conduct the trial and tho place of tho crime or near tho place where the crime occurred and it so happened that between the introducing of tho indictment and the setting of tho date of the opening trial there was often a long period which elapsed. It happened also, however, that the date of tho opening of tho trial was sot very quickly, very soon after the serving of tho indictment. The setting of the date of tho opening of tho trial itself was often very short so that above all for the defense counsel there was little time to concern themselves with the case -- to deal with the case --work on tho case. In another case I know about in which tho defense counsel had sufficient opportunity to study the files -- the documents.
Q. Dr. Schwarz, was there any longer time given for those cases in which the death penalty could be given than in cases which it could not be given; was there any consideration of that fact as you observed it?
A. As far as I could observe that did not play any special role in the setting of the date. It was natural that if it was a very big case that the defense counsel could study the act. Could not be given the document one or two days before to study them, so it often happened that somewhat larger entrim appeared. But, that special consideration of time should be expected, that I would not know.
Q. Who had possession of the indictment and of the files with the indictment from the time it was filed with the court?
A. The documents themselves were given to the business office of the special court or penal senate and the indictment, in addition to the main indictment, there were a number of copies of the indictment. These copies of the indictment were given to the experts working on the case and Referent and associate judge. The documents themselves remained at first with Herr Cuhorst who also determined who was to be the court reporter, and then they were given to the reporter for the preparation of the case.
Q. Did Herr Cuhorst appoint the defense counsel in the cases of which he was the presiding judge?
A. As far as they were not chosen by the defendant in those cases before the Special Court, so-called official defense counsel had to be appointed; that is in cases which one had to expect a penitentiary sentence and, of course, where the death penalty could be expected, in the prosecution for the population. In cases where the legal question for the defendants seemed necessary, and in cases where the defendants in accordance with their personality probably did not defend themselves sufficiently alone.
The appointment of official defense counsel, appointed by the court, were as far as I know also the task of the presiding judge. I assumed that Cuhorst appointed official defense counsel for the court.
Q. Now, how did the defense counsel gel access to the files; to whom did they have to apply in order to receive the files?
A. For this purpose the defense counsel had to turn to the business office official of the Special Court and the penal chamber, and he made application to be given the documents and then he had to fill out a questionnaire, and by means of a memorandum he was told when he could get the documents. They were sent to him if he was residing in another town or if he was in Stuttgart he could come himself and get them.
Q. Who determined whether he could get them and whether he would be entitled to receive them?
A. I am not informed about that. Herr Cuhorst might have made that decision, end also the court reporter in some cases, even the office itself did somewhat perhaps after discussing the question with the judge, determined the appointed time and when the defense counsel would be given to look into the files.
Q. What methods were available in trials under Herr Cuhorst to defendants, through their counsel, to obtain evidence with which to refute the facts set out in the files of the case?
A. That sufficient evidence was as a rule in the files themselves, and the defense counsel of course was given the opportunity to find out about these documents.
Q. Let me make myself a little clearer possibly. Let us assume that a statement was in the files which stated that a defendant had done certain criminal acts, and that a defendant believed that witness who had been present would testify that the defendant did not do the acts; what opportunity did the defense counsel or the defendant through his counsel have to obtain such evidence?
A. The defendant and the defense counsel had the opportunity to make application for evidence in writing a and to ask to have a witness appear in court. The court or the reporter had to make the decision as to whether the witness would be called to testify in the trial or not. It depended upon whether the facts the witness would testify about would be of probative value. If the defense counsel did not suggest having the court call a witness, he was free to call the witness himself, and to have him appear in the trial.
Q. If the case was serious and the files, therefore voluminous, then the shorter the period of time, between the time that file was made available to the defense counsel, and the time the case was set for trial, increased the difficulties of the defense counsel to obtain sufficient evidence, did it not?
A. Yes.
Q. Let me ask you this: Were there any resources of the court used or available to the defendant by which a witness could be required to come in, if the defendant wanted him, but the court, itself refused to call him?
A. Yes, there was the opportunity for the defendant to ask the defense counsel to supply this witnesses information at the trial -- to write to him that on a certain day, certain hour he should appear before the court, if he had been appointed as a witness for the defense counsel or by the defendant. It then happened that sufficient witnesses were then brought along by the defense counsel.
Q. Did the defendant Cuhorst make frequent speeches during the time that he occupied the president of the bench at Stuttgart?
A. If I understand your question correctly I am supposed to testify as to whether Cuhorst outside of his official activities gave speeches?
Q. Yes, I mean when he was not on the bench. Just this one question: Did he make speeches other than from the bench?
A. Of course.
Q. Were these speeches that he made in public places on legal or judicial matters or were they on other matters?
A. Herr Cuhorst had been appointed Gau speaker for the territory, Gau lecturer, and he was used especially during certain campaigns for special reasons. He was Gau lecturer partly in Stuttgart end in the country, and in the little towns he was used as such, and he delivered speeches repeatedly in Stuttgart. They were not speeches which concerned themselves about legal matters, but they were political speeches. The subject matter for all these Gau speakers and Kreis speakers had been ordered by the party. These public gatherings had been published and announced, and the subject of the lecturer had also been announced.
Q. Did you have occasion during this time that you acted, in your various capacities as the prosecution's side, to see how criminal crimes were prepared and filed in districts other than in Stuttgart?
A I saw rather few of these indictments, perhaps once in a while an indictment from Munich or Frankfurt. On the whole, however, of such political indictments I saw only those of the prosecution at the People' Court, because the Chief Reich Public Prosecutor at the People's Court frequently transferred trials to the General Public Prosecutor in Stuttgart. On the occasion of such trials, indictments and sentences of the People's Court had to be used also in conducting such trials repeatedly; that is, they had to be referred to.
Q From your observation of these other indictments filed before special courts and those that you saw that had been filed in the People' Court, tell the Court whether there was any noticeable difference between those and those that you prepared for trial before Cuhorst.
A Yes, I noticed particularly that the indictments were often surprisingly brief. They often described the facts in the case only very scantily, while the indictments of the prosecution in Stuttgard as a rule were very exhaustive. The indictments of the prosecution at the People's Court were also very exhaustive; they went into a lot of detail. All of the officers where the documents were filed had been named, and all file references were given. During my activity at the General Public Prosecutor's Office, certain directives were given for the writing of our own indictments, and they were very extensive.
Q Do you have any explanation of the reason why the indictments which you prepared for trials before the defendant Cuhorst were so extensive, as compared with these others?
AAs far as I know, one point of view was important here, namely, the point of view that we prosecutors knew that Cuhorst almost exclusively held his trial on the basis of the indictment, or based his trial on the indictment. Therefore, he desired that the indicements should, as far as possible, contain all the points of view and all the circumstances which were necessary to be known for the conduct of the trial. Regardless of this, it was probably also in accordance with our Schwaebisch manner to be somewhat more extensive, to go more into de tail, and to be somewhat more exact than, for example, the Prussian prosecutors were in the habit of being.
Q You have seen the defendant Cuhorst conduct trials, you said. Did he conduct them ordinarily from the indictment?
A Yes, I had the impression that Herr Cuhorst, as I have already told you, almost exclusively based the conduct of his trial on the indictment. Unfortunately, I also had the impression that his knowledge of the files was often not adequate, so that the Berichterstatter, the official in charge of the case who knew the files very well, had to balance the steps taken by the presiding judge.
Q Doctor, was the indictment sworn to by the prosecutor or by anyone?
A No, that was not the case. In the indictment there were the contents of the files or of the documents in so far as it was necessary for the trial, but a swearing to it never occurred. Also, the testimony of the witnesses, the transcripts, were not taken under oath or as an affidavit. An oath was taken only if a witness was examined by a commissioned judge because he was living at some distance, or because he was sick. If he was examined at another place, then, because the transcript replaced his personal appearance, the witness' statements were taken as an affidavit.
Q Under the law prevailing at the time and as practiced in the courts over which the defendant Cuhorst presided, was the defendant required to testify?
A The defendant was examined by Mr. Cuhorst himself. That was the task of the presiding judge according to our code of legal procedure. The examination of the defendant was exclusively carried on by the presiding judge, and nobody else had the right to address any questions to the defendant unless the presiding judge permitted the person concerned--that is, the associate judge or the prosecutor, possibly--to address questions to the defendant.
Q Let me get one thing clear for myself and the Court. What would have happened had a witness declined to testify, or a defendant, rather, declined to testify?
Was he required, under German law, to testify?
A Of course, according to German law the witness had to testify, only he could refuse to answer such questions which might bring about the fact that he himself would be put on trial. The testimony of a witness could be forced by a so-called forced arrest, an Erzwingungshaft.
Q Were you present at the trial of the case of Schmitt before Dr. Cuhorst?
A Yes.
Q Was that before Dr. Cuhorst?
A Yes.
Q Do you remember about the year or the time?
A Yes, it was about the year 1943; perhaps at the end of 1542, but probably in 1943.
Q Will you, just very briefly, tell the Court the facts as briefly as you can? I don't want to go into it extensively.
A In the case of this Schmitt we were concerned with a post office apprentice who worked at the field post office in Stuttgard. He was a man of about 60 or 61 years of age. He admitted that during his work at the field post office, during the course of about one--quarter of a year, he had robbed about thirty to fifty field post packages altogether, and he was, above all, interested in cigarettes.
The indictment against this man--who, as far as I remember, had been punished before because of begging--the indictment was based on the so-called Public Enemy Decree.
Actually, there was a case of theft simultaneously with the breaking open of something that had been secured against officially. However, it was supposed that Schmitt had exploited the extraordinary conditions created by the war.
Q What was the sentence, Doctor?
A The sentence was the death sentence, which was based on what could be handed down on the basis of this public Enemy Decree.
Q Did you recommend clemency in that case in your position as clemency officer?
A Yes. I was the clemency plea expert, I was in charge of that, and I was there during the trial with the general public prosecutor. As far as I remember, I told the general public prosecutor that the personal and human conditions in the case would justify not executing the death sentence. It was my opinion that after the death sentence had been pronounced, the deterring effect of the sentence was sufficient and it would not be necessary to execute the sentence in addition.
Q Dr. Schwarz, do you remember who the defense counsel was?
A The defense counsel was Diessem, the attorney at law. I remember his name exactly and this case so well because on the occasion of the defense plea of Diessem an incident occurred. The defense counsel, after some time, was interrupted by Cuhorst. That was done for the reason that his statements did not seem to be in order for Dr. Cuhorst. The defense counsel, as he stated himself, made efforts to avert the death sentence which had been asked for by the prosecutor, and for that purpose he stated that the basic crime of the deed was a trifle, actually, because only a constant violation was within the meaning of Paragraph 73, No. 5 of the Penal Code. That is, the so-called Luxury Goods Theft.
This violation is punishable with a money penalty of 350 marks or an arrest of four to five weeks. It is not actually a theft.
Q. The dispute, then, between the Defendant Cuhorst and Dr. Diessem was over the interpretation of the law, was it not?
A. Diessem did not think this was a crime within the meaning of the Public Enemy decree. He only wanted to point out that the basis of this crime was a rather scanty fact. I my opinion, Herr Diessem, legally, went a little far in his statement, and I base this on the point of view that there was no violation according to 370.5; but continued theft, in addition to that violation, was somewhat different.
Today, I have to admit that it was the right of defense counsel to do everything he could in order to represent a case from a legal point of view in the most favorable manner possible for the defendant.
MR. LaFOLLETTE: If your Honor please, I have only about two more questions on this point, I think. I would like to finish.
Q. I did not mean to interrupt, but may I ask you now who Dr. Glueck was?
A. Dr. Glueck was the president of the lawyer's chamber in Stuttgard. He was a lawyer, and at the same time, Gau Legal Office Chief of the Nazi Party.
Q. Did he have the power to discipline lawyers for breaches of legal conduct?
A. Yes. It was as follows: If a lawyer had become guilty of any kind of legal crime, so to speak, there could be a trial before the Honor Court. The other way was that the President of the lawyers' chamber based on his legal right of supervision over the lawyers, issued a corresponding decree. It consisted, for example, of a warning. I do not know whether the President of the lawyer's chamber was also in a position to ask for a fine. I think that is possible.
Q. May I ask, did. the Defendant Cuhorst report Dr. Diessem to Glueck about the dispute over the law?
A. It is correct that Herr Cuhorst, after this trial, addressed the Justizrat and the President of the Lawyers' Chamber and filed this complaint about the behavior of the lawyer Diessem.
As a result of this complaint, Herr Glueck forbade Diessem to be a defense counsel before the Special Court, and before the People's Senate and before the Oberlandesgericht in the future. I, myself, reported this incident to the General Public Prosecutor. I asked him, however, not to make it an Honor trial procedure because as far as I knew the conditions, the Lawyers at that time, were reprimanded very severely from Berlin if they made any remarks, whatsoever, in statements, which were not desirable. Generalstaatsanwalt Wagner agreed with my suggestion. I will admit openly that it would have bean unpleasant for me if I had had to appear in this case against Dr Diessem and be, so to say, the denouncer. Moreover, I wanted to prevent this case from becoming known in Berlin because in this case, I was afraid for Deissem. I was afraid that very severe measures would be taken against him. I am quite sure that an order would have directed that Honor Court procedure be used. The danger that Diessem would be deprived of his permission or right to proactive as a lawyer existed. Also Justizrat Glueck was anxious to have such cases settled here. He did not want these cases to reach Berlin.
Q. Just this, the only thing that you knew that Diessem did for which he was reported was to have this argument with the Defendant Cuhorst as to what law was applicable to the Schmitt case? Is that right?
A. Of course. Otherwise, Diessem made several remarks which made Cuhorst angry. Among other things, he said that the entire behavior of this man, Schmitt, was not a criminal behavior, but rather an untidy manner of a man who is an adict of nicotine, and who cannot control his desires. He used a colloquial expression, although this matter was serious and they asked for a death sentence. He said the defendant should be slapped on the face. At was a Schwaebisch expression, but it infuriated Cuhorst. I, myself, for that reason, considered the statement of counsel doubtful because I knew, you only create opposition that way.
It does not help your clients at all. On the contrary, it harms your clients.
Q. There is just one thing more. I think the translation came through a little erroneously a minute ago. This law that you cited was 370.5, was it not?
A. 370. This paragraph was called the so-called "mouth robbery" paragraph. It includes not only the stealing of goods, but luxury goods, especially cigarettes and everything else, that was in these postal packages.
MR. LAFOLLETTE: I think we extended the court's time to recess some. I appreciate Your Honor's letting me finish that.
THE PRESIDENT: You are through with your direct examination?
MR. LAFOLLETTE: I will renew the direct examination.
THE PRESIDENT: We will recess for 15 minutes at this time.
THE MARSHALL: The Tribunal is in recess for 15 minutes.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. BRIEGER: With the kind permission of Mr. LaFollette, I would like at this moment to correct a mis-translation committed by a translator who otherwise is very good. The witness said, "Dr. Diessem made a remark which provoked Cuhorst." That was translated, "Dr. Diessem made a remark that made Cuhorst angry." That translation does not express that in effect there was a cause where Cuhorst should have become irritable; in other words, that there was a casual connection. The translation should say that Diessem made a remark which irritated Cuhorst, or one could say that "provoked" Cuhorst. The translator has already told no that I am right in saying so.
MR. LA FOLLETTE: I certainly have no objection to the record appearing so. I would like at this time to divert completely to another matter so that the record may be corrected. It has been called to my attention that in the transcript of March 26, 1947 during the examinartion of testimony of the witness Seiler, that the witness Seiler identified and referred to the defendant Rothaug; whereas, the transcript on Pages 1040 to 1044 in each instance erroneously stated the defendant Rothenberger. This is clearly an error and I hope that notice will be taken of it and the transcript corrected.