It seems to me that it is more important than that a case is dealt with like lightning. Naturally, there are a class of cases which do not need a great deal of preparation but in serious cases I always considered it a mistake to go ahead at too great a speed because that cannot be in the interest of a case.
Did not at that time some of the countries took the view that speedy sentencing at the speed of lightning and in many cases was, in fact, to be preferred if thereby details which appeared of little importance were not completely cleared?
That's right. The aim in view was that if the offender had committed several offenses the prosecution concerning offenses of lesser importance should ignore them altogether and that the indictment should be concentrated on the main offense. That, too, was meant in the interest of speeded-up trials and it is correct, too, that a speedy trial, particularly it could be useful -- particularly if the terror effect was desired and had been achieved. I remember -- I will remind you of the case of the motor-trap case. In that case the Ministry of Justice in my view were completely right in insisting on a speedy trial because those cases of robbery and thievery represented a tremendous danger to transport and because they might easily have been into an epidemic unless severe measures were taken immediately. That was done in few cases and as a result these motor-car traps -- this robbery would stop in Germany.
Q. Did not the robbery of the station and the plundering of personal things -- do not those belong to this context and are you familiar with an instruction concerning thieves and field-post thieves, as remedy particularly speedy trials should be used and if possible the trials should be held on the spot where the crime is committed -one moment please -- and is such a procedure not admissible in particular when the offenders have admitted their deed in full?
It is correct that there were instructions and I am of the view that in special cases it could be of particular effect if the proceedings were hold at the very spot because frequently then the knowledge of the entire surroundings were familiar and of the local conditions could help to clarify the matter better.
I am willing to admit that the postal and railway thefts did require very severe punishment, because these were offenses which concerned the national community as a whole and because, of course, tho safety of the posts and the railways must be preserved at all costs. But all the same, I am of the opinion that the speed of a trial must not prevent the thorough and conscientious conduct of a trial.
Q The cases of Kraeutle and Alp belong to this category?
A Yes.
Q Is it known to you whether these criminals did admit their deed?
A I believe that essentially they were convicted and that they did confess. However, I do not know the details.
THE PRESIDENT: One moment, please. Before we pass this question of speedy trials, I want to got that decree more definitely in my mind. I understood the witness to say it was a decree of 1942. I have before no a copy of a decree of February 21, 1940. I am wondering if that is the same one.
THE WITNESS: No, I am talking of a decree made in the year 1942. As far as I know, that decree is also contained in the collection of previsions on penal procedure; it is contained in the appendix. The decree was called "A decree for speeding up." It was Hitler's own decree, and it was followed by an executive order made by the Reich Ministry of Justice. That order too is contained in the same collection.
THE PRESIDENT: You may proceed with the examination.
BY DR. MANDRY:
Q Because of the short time left between the commission of the deed and the trial, you criticized the Alp case and said that it had curtailed the facilities of the defense. What means are at the disposal of a conscientious defense counsel if he feels himself curtailed in his defense?
A The defense counsel has the probability, and he has the duty, to ask for an adjournment in such a case, or to ask for a postponement, because he was not able to study the matter properly and discuss it with his client, and because he could not properly prepare himself for the trial. It was possible that, following a discussion between the defense counsel and the defendant, some facts for the defense of the defendant could have come to light. As far as I remember, the actual circumstances of the crime had been cleared, but witnesses could have been called not about the circumstances, but to give testimony about the personalities of the two defendants who hitherto, if I remember correctly, had lived an unexceptionable life and who, in the course of many years, had done their duty as railway workers properly.
Q Did I understand you correctly? Did you say both were pardoned?
A Yes; both were pardoned. As I said earlier, as far as I remember, one was ten years' penitentiary, and the other was eight years' penitentiary.
Q After that verdict did railway robberies increase or not?
A I cannot judge that. At any rate, I believe that the verdict particularly in Ulm, produced a definite deterrent effect. As to the effect elsewhere, I could not elll you. Naturally, the case was reported in the press and I believe that persons working far the railways and for the posts took their warning from that.
Q You said that during the examination of defendants, and in particular during the examination of witnesses, Cuhorst read out records laid down during the pre-trial by police officials.
A That is not exactly what I said. What I said was if a witness or a defendant made a statement which did not correspond to his former statement made by the police or before a judge, then it was customary with Cuhorst to call the official who had formerly examined the witness, and examine him as a witness about that examination which he had conducted.
Q Was that against the procedural code, or correct?
A Yes, it was absolutely correct.
Q If a presiding judge committed any infringement against the code of procedure, what possibility existed under the code of procedure for a conscientious defense counsel? In what way could he bring about a decision by the Court? Would he ask that a note be made in the record?
A He could do both. He could demand that the Court should arrive at a decision on this point if it concerned a material point of the trial; that is to say, if it concerned a question like this, as to whether a witness was to be heard or not, or as to whether a fact about which evidence was required was of importance for evidence or not. I remember hardly any instance where defense counsel, at a trial over which Cuhorst presided, asked for such a decision by the Court.
Q Would that not have been important for a retrial or for asking for a pardon?
A That is correct. An infringement against the code of procedure, in certain circumstances, could justify a retrial.
Q Against sentences-
A (Interposing) There was no appeal and no revision concerning verdicts passed by a special court.
Q Under the German code of procedure, can an infringement of a code of procedure be proved only by the records, or can it also be proved by other means?
AAs far as I remember, It can only be proved by the records, but it is many years since I left my own profession and it is possible that I am wrong here.
Q You said that it was customary in Wuerttemberg to have particularly detailed indictments.
A Yes.
Q Were the indictments which were destined to be dealt with by Cuhorst more detailed than those destined for the Senate, or for other courts, or for presiding judges?
A The indictments for the Penal Senate generally were very detailed. one did not know from the beginning before which Penal Senate the case would come. There was a certain system that was followed, and as a rule I did not pay any attention to that system. I only know that the indictments before the Penal Chambers, and naturally also those for the local courts, hardly ever were as extensive and as detailed as those which came before the Special Court, with the exception of really serious and involved cases.
Q This way that the indictments had of becoming more detailed, was that not connected with the fact that pre-trials were abandoned? Was it not also connected with the endeavor to give as complete a picture as possible to the presiding judge, to the prosecution, and to the defendant from the indictment?
A It is correct that the fact that pre-trials were abandoned did have their effect on the indictment. In the same manner in which pre-trial was ordered, it was also ordered that in all cases where pre-trial was ordered, it was also ordered that in all cases where pre-trial would have been necessary, tho essential results of these pre-trial examinations should be contained in the indictment.
It is also correct that in particular the prosecution at Stuttgart was anxious that the defense counsel too, and the associate judges, by detailed indictment, should be speedily and comprehensively informed. However, a decisive reason for us in making these indictments so detailed was also the fact that we knew that Cuhorst liked to conduct his proceedings, basing himself on the indictment.
Q. Is it not also the purpose of the indictment to give the presiding judge an instrument for the conduct of the trial?
A That is correct. However, with other presiding judges I was accustomed to the fact that they made extracts for themselves from the files, and they laid down their own plan, from files, to which they could adhere, following the files as well.
THE PRESIDENT: He will suspend at this point for the noon recess, and adjourn until 1:30 this afternoon.
(A recess was taken until 1330 hours).
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 11 April 1947).
DR. MANDRY: Dr. Mandry for the defendant Cuhorst. May I continue the cross examination?
BERTHOLD SCHWARZ - Resumed CROSS EXAMINATION - Continued BY DR. MANDRY:
Q. I am returning to the question of what a conscientious defense counsel could undertake against violations of the code of procedure by the presiding judge. Who was supervising the presiding judge of the Special Court?
AAs far as I know, the district court president was the supervisor.
Q Was that not changed in the course of time so that in some cases the District Court of Appeals stepped in as supervisor?
A In his capacity as presiding judge of the first penal senate, Cuhorst was subordinate to the supervision of the District Court of Appeals' president, but the official supervision over him in his capacity as presiding judge of tho special court--whether that was changed, I don't know.
Q Did not a defense counsel in cases of violation of the code of procedure of the trial or other behavior of Cuhorst have the possibility either to make a formal complaint as an official supervisor or in a more informal way to inform the president of the District Court of Appeals, or at least his personnel chief; or if the district court president was competent for the supervision, to approach him and inform him about excesses or mistakes and to point them out to him; and was that the duty of the defense counsel?
A It would have boon the duty of the defense counsel, but I am of the opinion that a defense counsel would not have dared to take such steps against Cuhorst.
Q On the other hand, you told us about a case in which Cuhorst on his part objected to the behavior of a lawyer which he considered wrong, that he approached the supervisory authority of the president of the Lawyers' Chamber, if I understood you correctly.
A Yes.
Q Was this incorrect in any way?
A The proper way would have been to inform the general public prosecutor about it because the general public prosecutor had the supervision over the disciplinary courts' board--that is, the Ehrengericht. He was the authority which had to judge the behavior of lawyers. It would have been correct to go not directly to the president of the legal chamber of lawyers but to go to the general public prosecutor. Cuhorst did not do this, and the reason was, that his relationship with the general public prosecutor was not a good one.
q Was his relationship with the president of the lawyers' chamber a good one?
A I cannot judge that any more, but I believe that this relationship too was at times in any case not a good one.
Q Was the approaching of the president of the lawyers' chamber not the more lenient method--the least strict way--as compared with approaching the general public prosecutor?
A I would not like to say so absolutely.
Q Do you know whether the lawyer Diessem who was told, in your opinion, by the president of the lawyers' chamber before the special court not to appear any more before the special court and the Oberlandesgericht, that he after this did again appear before before the Special court and the Oberlandesgericht?
Q I do not know whether lawyer Diessem again was defense counsel before the special court or tho penal senate later on. In any case, I regarded this measure in.this case far too strict. I would have imagined that Herr Glueck would ask the lawyer Dr. Diessem to come to him and tell him what Cuhorst had written to Glueck and would ask him that in the future in his statements and in the manner in which he makes his statements to be somewhat more careful in order not to create an unfavorable position in the court and thereby put himself and the lawyers' profession into a difficult position not to antagonize the court; for this danger existed at that time.
In any case of this nature where a lawyer expressed himself in such a way, Cuhorst, did not like it.
Q I am repeating my question. Does the approaching of the general public prosecutor not mean the approaching of a more formal legal apparatus compared with the approaching of the president of the lawyers' chamber, or does not the approaching of the president of the lawyers' chamber mean a more lenient mode of action? You, yourself, mentioned that there was a danger that the general public prosecutor could refer the matter to Berlin and from Berlin action would be taken.
A Perhaps you misunderstood me quite a bit. If Cuhorst would have reported the matter to the general public prosecutor, I am convinced that not even such a step would have been taken as was taken against Diessem, and the reason why this would not have been done is that the general, public prosecutor had even more the tendency to settle these matters out of court simply, and I, myself, was making efforts in that direction. There was no trial, made from this case, even though the general public prosecutor through me had been informed about the incident. Not even files were made up in this case because Cuhorst reported the matter to Glueck in the form of a complaint. The case took on a formal nature to the disadvantage of the lawyer Diessem and a big affair was made out of it.
Q Is the matter not settled in their own house, so to say, if it is brought before this lawyers' chamber?
A It is true that Herr Glueck too settled the matter on his own. field of competence. However, there were legal consequences which were very considerable for Herr Diessem.
Q Do you know from your own knowledge that Diessem did not any more appear in court in the future after that?
A I cannot say whether after that Diessem still appeared in court as a counsel. I only know that Glueck at that time forbade him to be a defense counsel before the special court or in the penal senate.
Q Do you not know that if this prohibition was issued that it was soon again withdrawn?
A I do not know that.
MR. WOOLEYHAN: May it please the Court, I object to that question on the ground that it constitutes argument with the witness in an attempt to elicit an answer which the witness has already stated that he doesn't know.
THE PRESIDENT: That objection will be sustained on the ground stated.
BY DR. MANDRY:
Q The presiding judge Cuhorst used the indictment as a basis, you said?
A Yes.
Q And that this was due to inadequate knowledge of the files on the part of the presiding judge -- that is how I understood you to say -- and that this was balanced by the exact knowledge of the contents of the files which the person in charge of the case had -the berichterstatter -- is that correct?
A It is correct that the person in charge of the case made efforts to balance out this weakness of the presiding judge. However, it was hardly possible for him to put so many questions that the lack was entirely balanced out.
Q Was it not the duty of the defense counsel to try to do away with this lack -- whether to have it removed?
A That is correct, and the defense counsel also put questions or had requested to have the presiding judge put questions to the defendant.
However, it happened frequently that Cuhorst did not put such questions that he was asked to put.
Q Did that happen frequently and regularly or in any case was a corresponding remark of the defense counsel put in the transcript?
A I don't believe so. In any case, from my own knowledge, I cannot say that a defense counsel made the application to have such an incident entered into the record. I am basing my statement on the simple fact that the defense counsels here too wanted to avoid any opposition with the presiding judge Cuhorst because they feared unpleasantness.
Q Did that not mean a violation of their duty on the part of the defense counsel?
A That is correct. The defense counsels should have the courage.
Q I have another question regarding the refusal to accept evidence. Did the admission of evidence or the refusal to accept it, was it up to the free decision of the court? Thus with regard to the question of discretion -- was it that if a court considered an application for evidence as objectionable, was it not free to just reject or to have something accepted into evidence?
A The legal situation changed in the course of time in this respect. I believe only in 1942 every court was granted the right to refuse to accept evidence if it deemed it necessary in order to ascertain the truth; while formerly, it had been as follows: an application to accept something in evidence to a court from which there was no appeal from a sentence, was allowed to be rejected only in certain cases. The special court was such a court that the sentence pronounced by it acquired legal force the moment it was pronounced, and it was in this that the force which the law of this court -- which the law had intended to give it existed -- that there was no appeal and no revision, but only an extended retrial of the case. But it is natural that an application to accept in evidence for reasons of decency alone was not allowed to be refused if it was in any way possible that the examination of the witness concerned would contribute to the finding of the truth, if even in a small point.
This right to refuse request to accept something in evidence was up to the discretion of the court, to be sure. However, this discretion should net have been misused.
Q I would like to repeat my question. Even if there was a misuse of the discretion here, should not a conscientious defense counsel here too see to it that his statements are entered into the record?
A That is correct, but likewise I have to repeat my previous statement that the defense counsels, with few exceptions, did not dare to object to it here.
Q Can you describe the role played by the Berichterstatter? Can you describe in more detail to the court, to what extent, according to German legal usage -- court usage -- the Berichterstatter had to know the files and documents; what extent he was the third associate judge; to what extent he had to know them formerly and then during the practice of the special court trials?
A The Berichterstatter in a criminal case had the task, in addition to the presiding judge, to get an exact knowledge of the information in the files and the discussion after the evidence had been'received. In general, he had to describe the case. The third associate judge -- what I want to add -- in general, he also had the duty to write the written sentence. The sentence was then signed by the presiding judge and the two associate judges; but the opinion on which the sentence was based and the writing of the sentence, that was the duty of the Berichterstatter. The second associate judge of the court as a rule did not know what was in the files, but only found out on the basis of the indictment and during the trial the actual facts in the case
Q Fitness, I have the impression that the Court wants to make an objection.
THE PRESIDENT: I want to admonish defense counsel that they must stand during the conducting of an examination.
BY DR. MANDRY:
Q The prosecution, if I understood correctly, discussed an indictment which was sworn to, or part of the documents which had been sworn to. At the special court Stuttgart were efforts made, if possible, to have an immediate submission of evidence by examining the witnesses or was there not another practice?
MR. WOOLEYHAN: May it please the Court, I am not sure wherein the misunderstanding lies, but I distinctly heard over the headphone that the prosecution had talked about sworn indictments. It is an obvious fact that indictments are not sworn to. Can we have some clarification of that on the part of the defense counsel?
THE PRESIDENT: Did defense counsel understand the statement of the prosecution?
DR. MANDRY: Yes, I did.
THE PRESIDENT: Do you desire to make answer to it?
BY DR. MANDRY:
Q These statements which were made in connection with the interrogation of police officials, or the examination, or judges who had already examined witnesses. Were those exceptional? Was that an unusual method of conducting a trial of this type?
A. Certainly it did not happen very often; most of the witnesses and defendants still maintained what they had said at first, before.
Q. I am now going over to the individual cases which you had discussed. Who was the Berichterstatter in this Schmidt case?
A. I don't remember any more.
Q. Where was that trial held?
A. It was held in Stuttgart. I remember that Herr Stuber was associate judge in that case.
Q. I thank you. Do you know who the judge and prosecutor was in the Heinz Niemtz case?
A. I don't know.
Q. How about the Berichterstatter?
A. I don't remember, but that is evident from the sentences which I had in front of me, which is now in the hands of the prosecution.
Q. Do you know who the prosecutor was -- I withdraw the question. In the case of the young Pole, Pitra, who was the Berichterstatter?
A. I cannot remember that; I do not remember the details of the case.
Q. Does the Chief of Counsel here also have this sentence?
A. That is possible. I believe that in that case possibly Herr Wendling made a clemancy plea for this Pole. It is quite conceivable that I had something to do with the matter, but I don't believe so. In any case, it was a case in which it was against a human feelings that the young Pole should be executed because an elderly German woman had seduced him.
Q. Do you know what the indictment of the prosecution said?
A. I don't know that.
Q. In this connection you made the remark during the trials against foreigners, Poles, Cuhorst was supposed to have made the remark that foreigners, if they acted contrary to German laws, they would have to receive especially severe penalties. Toward whom was this remark made and what time?
A. Remarks of that type were in the verdicts themselves, in the opinion on which the verdict was based.
Q. Do you know that in the case Pitra this was especially done?
A. I don't remember it in special connection with that case, but I read a number of other sentences against foreigners and which this Sentence was used as a part of the opinion, and it was a very decisive reason on which the verdict was based.
Q. Do I understand you correctly that you say that sentences of the Special Court, Stuttgart, it said because the convicted, a defendant, is a foreigner, therefore, he will be punished more severely or especially severely?
A. Yes, that was the meaning of these statements.
Q. Please, if you cannot do so today, perhaps by looking at the verdicts which the Prosecution has, those that are with the Chief of Counsel, you can name cases in which that was used.
A. I don't know which of the verdicts the Prosecution has here. My memory is based upon the memory I have of sentences which I saw when I was with the general prosecutor's office in Stuttgart.
Q. We cannot take any stated opinion on this without your mentioning these sentences by name, by the name of the case.
Can you -
MR. WOOLEYHAN: May the Court please, I object to this haranguing and arguing with the witness on questions that he has stated he doesn't know. I furthermore object to the attitude at the present moment being taken toward the witness by defense counsel.
THE PRESIDENT: The objection will be sustained; and the witness will certainly not be required to refer to cases that should be the problem of the examiner.
BY DR. MANDRY:
Q. In the jurisdiction of the Second Penal Senate, the District Court of Appeals, Stuttgart, what is the difference especially in the field of malicious acts, undermining of defense potential.
A. Malicious acts crimes were not before the Penal Senate, were not tried before the Penal Senate; it was exclusively the field of the Special Court; thus we can only be concerned how the cases in which there was an undermining of military fighting potential, how they were handled.
In this regard I can say that the sentences of the Second Penal Senate, in general, were rather lenient. I myself appeared before the Second Penal Senate; I preferred to appear there rather than at the First Penal Senate because the method of conducting the trial by the presiding judge Kiefer, because the method was much more pleasant and I liked it much better than the other; I liked it much better. Presiding Judge Kiefer prepared the trial very carefully and conducted it as a very conscientious judge and in a conscientious manner.
THE PRESIDENT: Defense Counsel is admonished that we are not interested in other presiding judges of other senates.
DR. MANDRY: I received the affidavit of the witness only this morning, and have not yet had an opportunity to discuss it with my client. Therefore, I would like before I continue the cross examination of the witness, I would like to have the opportunity to discuss this affidavit with my client.
MR. WOOLEYHAN: May it please the Court, the Prosecution has a brief word on this matter. The Prosecution objects to any further dealy and regards the request as dilatory. The Prosecution has abided by all the rules imposed upon us to distribute these documents within the time limit set. The fact that Defense Counsel is not prepared to go further is certainly not our fault, and we object to any delay.
THE PRESIDENT: We recall that when that question was raised at the opening of the Court this morning, Dr. Brieger, representing the defendant Cuhorst, consented to go ahead with the examination without loss of time; and inasmuch as there was an hour and a quarter at the noon hour, when this might have been gone into, we can't see that we are unfair in requiring the cross examination to proceed.
DR. MANDRY: Then I shall make an attempt to make the affidavit now the subject of cross examination.
BY DR. MANDRY:
Q. In your affidavit you say that the prosecution complained about the short time which elapsed before the date of the opening of the trial was set.
A. That is correct. The opening dates, the time before the opening date was set was frequently so short that we could not take any special steps to go into the matter. I have had a case like that myself in which on Saturday, around noon, the day of the opening trial was set for Monday morning, and even I did not know about that myself, even though I was a prosecutor in this case. The result was that I did not appear in the court room on time; the case opened at eight o'clock in the morning; a prosecutor had to be called into the session who had absolutely no idea about the case, and when I appeared in court later on he was informed that I had set the date for eight o'clock in the morning. I then took over the case and completed it as best I could. I complained about it to Mr. Cuhorst that the time was so short that I could not even be notified of when the opening date had been set.
Q. Did you also inform Cuhorst's supervisory authorities about it?
A. I did not do that for I told that to him personally, to Cuhorst personally. I also know that the office of the prosecution often complained to me that they could not get around to the calling of the witnesses because of the brief period. I did not tell this to Cuhorst myself because that wasn't in my task but I told it to the Division Chief and then I represented the point of view that the setting of the dates of the opening of the trial should take into consideration that more attention be paid to the position of the prosecution which actually was not in a position to cope with the many courts and *et witnesses in that time. I often had discussed with the office and brought their attention to this matter.
Q. Was this not by reason of the fact the number of cases were very large?
A. Only in part. It was often due to the fact that Cuhorst often lot a long time elapse before be again set a new series of trials but then unfortunately everything had to go in a terrible hurry -- head over heels, also it is true that I always regretted that Cuhorst reserved the right to himself when he went on vacations, in spite of that, to set the opening date of the trial to keep that in his own hands because he did not want that his deputy, while he was on vacation to set opening dates of trials. Be it for the date when he was on vacation or be it for the later time and on which he, himself, would have to comply with when he returned.
7. Did other Presiding Judges not also follow this procedure?
A. I cannot say that. I don't know but I know that with Cuhorst this took an especially crass form and I could not understand suck a way of handling matters.
Q. Did he spend a long time on his vacation? About how long did he go away at a time?
A. That could be for weeks.
Q. You said before that the office could hardly keep up with the sending out of summons, Did Cuhorst have any influence in this or was that the duty of the office-only the duty of the office?
A. Of course, that was the duty of the executive office, but as the time elapsed before the opening of the trial was so short that the handling of the summons had to be carried on very quickly in order to make the trials possible. Altogether the fault probably lies with the person who allowed such a short time and set the opening dates in such a short time. In my opinion it would have been easily possible to make a more even distribution of trials.
Q. The Oberlandesgericht President who had the official supervision, was he not given the possibility at least that the Public Prosecutor inform him and discuss the matter with him and do away with some of these faults?
A. One could have expected that.
Q. Did you ever hear about suck complaints to the Oberlandesgericht President?
A. I don't know anything about that.
Q. I thought those wore the authorities that are competent for it.
A. That's correct but nobody was there who liked to complain about Cuhorst.
Q. In your affidavit you talked about the activities on trips of the Special Court.