Did these trips take place at the place of the crime? Is that an innovation introduced by Cuhorst or was it an institution which existed already during tho time of his predecessors?
A. As far as I know rector Flachsland occasionally also wont to outlying districts but those trips actively under the Presiding Judgeship of Cuhorst increased to a certain extend and in a way I personally considered to be exaggerated frequently. In my opinion it would have been enough if some cases had been tried together at a larger locality and that they be tried there but the trips were made to the individual places so that an extra-ordinary amount of time was lost on the way and some of the trials had to be conducted in a very quick manner because a further trip to another place was planned. From these points of view I considered this activity on trips in no way of service to the matter. I was under the impression that it was a personal love of Cuhorst's to take such trips.
Q. Was this not holding a trial at the place of the crime in accordance with an express directive and was it not desirable in many cases?
A. Actually it is true that the Reich Ministry of Justice was in favor of such a trial at the place of the crime and that it promoted it but I believed that the extent of this activity on troops -- these trials on trips of the Social Courts Stuttgart was too excessive and it was the viewpoint of the case to hold a trial where the crime was committed because one had to be in the surroundings of the defendant. I rather was under tho impression that it was personal reasons that there were so many trips undertaken by the Special Court.
Q. Was this trip actually not encouraged by the Ministry of Justice or the Oberlandesgericht President? For example, furnishing an automobile to these Special Courts.
A. That's correct. However, it happened also that a large number of unnecessary matters were done. I remember a case where the witnesses had already come to Stuttgart and also the defendant and then in spite of that it was decreed that to case should be tried in Hechingen or in Sigmaringen.
Q. Can't you state which these case are so that we can examine then?
A. I do not remember individual cases. I only think that, for instance, in the Case Plattmann it was like that but I cannot be mistaken -- it was a case of a clergyman which was tried. The first half of which was tried in Sigmaringen and the second half in the Black Forest, I believe at Todtnach near the Feldberg.
Q. Do you not remember any technical reasons for this?
A. In my opinion it was not necessary to go to Todtnach on account of this one case. The case could very well have been tried altogether in Stuttgart or at least in Sigmaringen. I have to remind you that the Second Penal. Senate made these trips very seldom. Anyway, it travelled much loss than the First Penal Senate.
Q. In reference to the trip activities is it only a question of the Penal Senate or is it also a question of tho Special Court which had a much larger area, as you described it to us?
A. In the first place we are concerned with the Special Court but also with, the Penal Senate, also the Second Penal Senate, which of course, occasionally went to the Saar territory or into the Palatinate but the trip activities were not so exaggerated as in the case of the Special Court.
I personally was present at such trips frequently but later on I mostly had to suffer for this by having a large amount of work which had remained during that time in my office that I had to work on afterwards. These trips, it was also those trips which gave the Special Court its feared name and reputation.
Q. Was not the Special Court in particular during wartime -- was it not the purpose of being a deterring influence on its penalties and in an especially effective manner of its conduct of tho trials toward the general public? Was not that a desired method of conducting a trial which the Justice Ministry desired and requested?
A. That's correct, that the Reich Ministry of Justice wanted to have a deterring influence asserted but I do not believe that it was desirable to the Reich Ministry of Justice to exercise a deterrent through this method of conducting a trial.
Q. This morning you motioned several cases in which the prosecution if I remember correctly, asked for death sentences and in which the Court under Cuhorst in accordance with the indictment and the pleas of the prosecution pronounced a death sentence and where afterwar is the pardoning authorities changed these death sentences. Were they not pronounced in particular for purposes of acting as a deterrent and did not for that reason the prosecution ask for them?
A. I do not know what directive the prosecution had received on the case. It's true that the prosecution asked for the death, penalty but that does not mean that the court had to pronounce a death sentence. The plea of the prosecution is , as a rule, within its proper meaning stricter and the court has to pronounce its verdict and is responsible for it.
Q. Does not the prosecution also according to the result of the evidence and the conclusions drawn at the trial find its plea from -- form its plea and is it not here subject to the same impression of the course of the trial and the result of the trial as the court?
A. That's correct. The prosecution also in general has to make its plea in accordance -- to find it in accordance with the proceedings of the trial but at the same time it is subject to the directives which often are independent of the personal impressions of the prosecutor. That was the case in the Alp case.
Q. Does a prosecutor in a trial session when at the conclusion of that trial and after the evidence has been received, if he wanted to make a plea different than the one which he had been told to make, would he have to have a discussion about it? Was that the practice in Stuttgart?
A. In general if during the trial a case appeared to warrant a milder punishment he could deviate from his prepared plea but there were also exceptions where especially in serious cases a directive was issued. If the prosecutor wanted to deviate from t is directive he had to discuss this with the Division Chief or even with the General Public Prosecutor.
Q. In your affidavit you stated that the Defendant Cuhorst had -- in a trial which because of the seriousness of the crime or the circumstances of the case aroused a great deal of excitement and interest he a acted as the presiding judge in the trial?
AAs far as I remember that's correct. In the most serious cases he reserved himself because he believed he as Presiding Judge of the Special Court had to do that himself.
Q Do you know whether in 1938 in the report in the newspaper the names of the judges in the trials are mentioned in the press dispatches?
AAs far as I know the names of the presiding judge -- I believe the name of Cuhorst was mentioned in the press dispatches until war-time -- for a long time even during war these press dispatches were later on sometimes written in a briefer form but I am of the impression that the name of the Senate President Cuhorst -- that with this name of the Presiding Judge of the Penal Senate Cuhorst certain propaganda was made with the use of this name and through the combination with these series of cases, as you have to say, the reputation, the feared reputation of Cuhorst was based on that in Wurrttemberg.
Q Was it a fact that his personal achievement was through his concerning himself with all serious and significant cases?
A I believe that in addition --- that his Party activities took place and a lot of his time -- in addition to his Party activities the cases in the Special Court and the Penal Senate took up a lot of his time; that may have been a reason why he conducted the trials mainly on the basis of the indictment but in my opinion it would have been his task if his Party work was taken up to such an extent to the large number of cases that he should distribute the cases better.
Q Did you know that Cuhorst twice during the war fell sick so that he had to interrupt his work or do you knew anything about that?
A I believe that I remember that Cuhorst was once sick but I don't remember any details.
Q In your affidavit you mentioned that in numerous decrees issued by the Reich Ministry of Justice there was an insistence upon stricter penalties -- more severe penalties? Do you know how Cuhorst felt about the influence from Berlin -- if you talked to him? Do you know anything about that as to whether and how he regarded the verdicts from -- how his verdicts were received in Berlin?
A I know that the Reich Ministry of Justice was not satisfied with some of the sentences pronounced in Stuttgart and that occasionally a list of cases was compiled in Berlin which, in the opinion of the Reich Ministry of Justice in which a higher penalty -- a more severe penalty should have been issued. It is true that Cuhorst was opposed to some of the decrees which asked for a severe penalty and that he followed a more lenient line than was desired by the Ministry of Justice. Above all this concerned violations against the Malicious Acts Law and contact with prisoners of war sometimes. Also undermining of the military fighting potential and partly case of war economic crimes.
Q These crimes and delicts of such a nature where the industry of Justice repeatedly objection to Cuhorst's verdicts in particular -do you know anything about that?
A Yes, I know about that. I just said that verdicts pronounced by the Stuttgart Court were repeatedly objected to. Of course, these were usually cases of medium and smaller types, or less important. I considered these lists from Berlin to be rather small-minded. Several nullity pleas too, against verdicts of the Special Court were initiated by Berlin -- that is against the Special Court at Stuttgart -- and were carried out. However, in the serious cases which Cuhorst handled in trial, in any case, such heavy penalties were always pronounced that the Reich Ministry of Justice, in these cases, doubtlessly had no reason to make any objection.
Q Do you not know of cases which, by way of the nullity plea, came again to a trial or to a re-trial, in which cases the death sentence or heavy pentitentiary sentences were pronounced, while Stuttgart, under Cuhorst, had pronounced other penalties?
A Yes, that is correct. I myself had to defend such a case, or was represented in such a case. That was the case of Fussen. It was a sexual case against a Catholic Priest. In my plea I asked for five years' penitentiary on order of the Reich Ministry of Justice because of attempted rape and because of dangerous injuries which the Friest Fussen had caused to a girl called Margarethe Brandner, during the course of many years.
The Special Court, with Cuhorst presiding, conducted this case in a grandiose manner, or a large-scale manner. I always supposed that a very serious penalty, which would at least be in accordance with my plea, would be pronounced. The verdict, however, was only for three years in prison. I reported to Berlin, that is, I drafted a report which the General Public Prosecutor signed. I stated that the discrepancy between the plea and the verdict was, above all, due to the fact that the Special Court had not recognized the attempted rape.
I was of the opinion that these three years in jail should suffice, especially since the case was already some time back.
The case was so old that it almost was no longer within legal competance.
1983-A The reich Ministry of Justice did not agree with this suggestion, or comply with it, but made anullity plea to the Oberreichsanwalt in Leipzig; it initiated the nullity plea.
The verdict was changed by the Reich Supreme Court at Leipzig because it was too lenient. It was referred back to the Special Court in Frankfurt. If I remember correctly there Fussen, in contrast to the three years of jail sentence which he got in Stuttgart, was given a penitentiary sentence of eight years. Thus the verdict exceeded by three years the plea which I had made. The plea which I had made, had itself been made by directive from Berlin, and likewise the Special Court Frankfurt exceeded these five years by three years.
Q Can you perhaps tell us, when this case took place, when it was in court, and when the verdict was issued?
A The crime took place, if I remember correctly, during the years 1926-27, until 1934, or 1932, I don't remember exactly. The deed at the time the sentence was pronounced, was eight or nine years back. In any case the main facts in the case were that far, in the past. It is possible that the deed went on for some time longer. The sentencing was, I believe, at the end of 1940, or at the beginning of 1941.
Q Further in your affidavit you mentioned the sentence of Klaussner and Klautzer in some detail. Can you tell us what the plea of the prosecution was in that case?
A Yes in the case of Klaussner we were concerned with two fellows, who, are prisoners detained pending trial, wanted to escape, and they wanted to do it in this way. They made an agreement that they wanted to beat the warden of the prison and, after taking the keys away from him, they wanted to escape. They hit this prison warden and knocked him down, but he succeeded in getting up again and this prevented the attempted escape. As far as I remember the plea, of the prosecution against both defendants was for death sentence in both cases, under the point of view that it was a crime against the" Violent Criminals Decree".
The special Court under Cuhorst, for one of the defendants by the name of Klautzer, who was 19 or 20 years old, who had been punished before because of fraud and who had made the plans for the escape -- they sentenced him to five years in the penitentiary; while the co-defendant by the name of Klaussner, who was only 17 years old and thus a juvenile, was sentenced to death by the court.
The verdict was executed.
I was concerned with this case because the defense counsel of Klaussner, of the juvenile who had been sentenced to death -- a nullity plea to the Oberreichsanwalt was initiated. I initiated it with the intention of changing the sentence, that is, withdrawing the sentence, and achieving a re-trial in which there would be no death sentence pronounced. As expert of the General Public Prosecutor's Office I was put in charge of the case, and I was of the opinion that the initiation of the nullity plea, by the defense counsel, should be agreed to, or should be helped. It seemed to me to be unjust that the older one, Klautzer, who had made the plan for the deed and who, after all, took part in the deed by attracting the attention of the prison warden to himself and later by holding him so that Klaussner could hit the warden -- I believed that Klautzer, that **, this older one, should not get away with only five years while the juvenile, Klaussner, who to be sure had hit the warden, should suffer for the deed with his life, or atone for the deed with his life.
In any case, if both of them had been sentenced to death, that would have been too severe. For that reason this Klaussner, this juvenile, should also have received a prison sentence.
Therefore, I was in favor of the nullity plea and tried to prove its correctness. I also believe that I did prove that the sentence of the Special Court which pronounced the death sentence for this juvenile was not legally justified, regardless of the injustice toward his accomplice. However, I did not succeed in this opinion.
The General Public Prosecutor looked at this juvenile, this Klaussner, at the prison.
He looked at him personally, and he decided that in his opinion the death sentence against this juvenile was justified and that there was no occasion to introduce a nullity plea in his favor. The legal lack which, in my draft of the nullity plea, I had urgently explained, the General Public Prosecutor stated was insignificant. The Oberreichsanwalt, the Chief Reich Public Prosecutor, unfortunately, followed this same opinion and did not introduce the nullity plea. Klaussner was then executed.
THE PRESIDENT: The time has come for an afternoon recess. We will now take a recess for fifteen minutes.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
Q. Concerning the case of Klaussner-Klautzer, the verdict of the special court was not corrected?
A. No. Klaussner was executed. I believe that Klautzer, the older of the two, the nineteen year old, had the support of the party. And as far as I know, later on the Party tried to get him transferred from the prison to a special unit. I should like to add, that at that time, I was a great deal effected by that case, and I regret that I had too little support at the time. I admit that that juvenile prisoner was asocial. He had committed a number of thefts at Pforzheim. He had also committed a robbery on the read at the age of 15. He came from a family which was more or less asocial, that is to say, the prognosis for his later development was bad in itself. Klaussner came from a better family. He was the intellectual type of criminal. He was the imposter type. He had never formerly committed a violent crime, but in spite of all that, it seemed untenable to me that such different treatment should be meted cut to two people, and in particular, that the death penalty would be pronounced under the law against violent criminals for juveniles. It was possible to do so. He was over 16 years of age. He had become a criminal at an early age, and his attitude was regrettable. He had shown that his attitude in general was highly regrettable in committing that offense.
But as far as I see it, the Special Court did not sufficiently examine the point as to whether it was really necessary to pronounce the death sentence in the case of this juvenile. He had hardly been placed in the prison and one could not forsee what effect a longer term in prison might have had on him. His life was cut short. All hope was lost.
THE PRESIDENT: The Tribunal feels, at this time,that the facts of this pair of criminals has been quite fully developed. You should go to something else.
Q. I should like to put one more question which is mentioned in the affidavit concerning Klaussner's party affiliation.
Am I right in assuming that you, Witness, had recently seen the verdict?
A. Yes. I believe that in February, the verdict was shown to me.
Q. By whom?
A. By the Prosecution.
Q. Does it say anything in the reasons for the verdict about the party affiliation?
A. I do not know. I do not know, but I believe I remember he was a member of the Hitler Youth, and that the Party later on tried to help him.
Q. Have you any reason to say that during the trial, before the Special Court, the Party membership and the advise of the Party officers that he should be given more lenient treatment, was followed? Have you any reason to assume that the Court did know about that? Is there anything in the record to show that the Court knew that?
A. I cannot say.
Q. In your affidavit, you said that it would have bean a decisive factor if the Party had given its aid to this juvenile?
That is correct.
Q. Is there any reason in the files which you have seen to support that statement?
A. I believe I can remember. That is the reason for my statement. In the files which I saw at the time, such support by the Party, supporting more lenient treatment, was mentioned, whether that support was mentioned in any way at the trial, I do not know.
Q. What makes you state the fact that that support from the Party was a decisive factor for Cuhorst?
A. I merely stated that as far as I know, it was not a decisive factor. I concluded that from the fact that in the files, this support for the Party was mentioned, and that Cuhorst, as an old party member, I could consider that another fact, would have considered such support.
Therefore, he was treated in a more lenient way. He kept them from pronouncing the death sentence. That was merely a conclusion I drew.
Q. When you draw such conclusions, as a matter of fact, I would like to ask you to state facts. Can you give me facts to substantiate your statement?
A. I cannot give you facts as such. I cannot state.
Q. The rejection of the pardon plea was received by the Generalstaatsanwalt, the General Public Prosecutor?
A. At that time we were not concerned with the case of the parson, but at that time we were concerned with the submission of the nullity plea; in other words , we were concerned with the legal questions, since the general public prosecutor took the view that the nullity plea in favor of Klaussner should not be submitted; it was only consistent for him not to support a pardon plea. I had nothing to do with the matter of the pardon; that was a matter for the Ministry Division in which I was not employed at that time.
Q. May I point out to you that if Klaussner had previous convictions , his membership in the party would have been interrupted; is that correct or is it not that as a rule persons with previous convictions arc dropped by the party?
A. As a rule that is correct, but the party did not always hear of all convictions. There were many party members who remained in the party although they had been convicted.
Q. In your affidavit concerning the penal senate, concerning Mannheim communist case, before the penal senate; you mentioned this matter in your affidavit.
A. Yes, I did.
Q. I world like to apologize, but I would like to put one more question about the Klaussner case. Do you know that when party members had a sentence passed upon them, the court or the prosecution had to inform the party so that the party could exclude that person from the party? I am asking you that question formerly you said; you said later on that the party did not always hear of that.
A. There was such an instruction, but whether it was always adhered to, I am in doubt as to that. It also depended whether the offense committed by a member had been committed in his own district or in some other town.
When these offenses had been committed in his own district the party, us a rule heard of such offenses.
Q. Is it possible that in case where a death sentence was passed or a heavy penitentiary sentence, that the party member, if a party member if he was in any way seriously involved in such a case, there was a possibility that the party should not have heard of it; if it did not hear of it through the court, would the party not have heard of it through the press?
A. That is correct, but there are always exceptions.
THE PRESIDENT: The ruling has been made on this matter, and too much time has already been consumed. The attitude of counsel is more argumentative than that of the examiner. Your arguments had better be addressed to the Court rather than to this witness, or we must insist that you go to some other subject.
BY DR. MANDRY:
Q. Referring to the Munnleim communist case, the trial; how was it that in your affidavit you say that in spite of your opposition you had been prosecutor in that case; could thE general Public prosecutor, or the head of the prosecution , could he not at any time appointed anybody else?
A. That is correct, but in this case the expert on the case Fritz a few days before the trial, for some reason or the other, was no longer available. It is possible that there was another case which was hold at the same day to which he had to attend. I, myself, in this case had been concerned with it earlier on when I was still in that depart-ment, and for that reason the general public prosecutor appointed me in place of the public prosecutor, who was really competent to look after this case; the case was very comprehensive, and another person would hardly have had the possibility in such a short time to investigate the material properly.
I resisted the appointment though to this case because I had been ashed to put forward a motion which I, myself, did not consider justified; but it appears necessary to me if it is desired I should do so, first of all to give a general account of this case.
MR. WOOLEYHAN: May it please the Court, I am not saying that the answer of the witness is unresponsive. I merely say that another general account of this case is unnecessary because it has already been set forth in the affidavit which is already in evidence. we object to the repetition of more case facts which are contained in the affidavit now in evidence.
THE PRESIDENT: Your questions should not be merely repetitious of the witness' statements in the affidavit. Of course, if you have some contradiction of it, that's another matter, but merely to recite the allegations of the affidavit to the witness doesn't advance the argument, nor it doesn't advance your defense.
BY DR. MANDRY:
Q. Do you know of other death sentences passed by the First Senate when Dr. Cuhorst was the presiding judge?
A. I only know of two other death sentences; one is the Woessner case, at Ludwigsburg, and the other I have forgotten the name; it was a case of two convicts of Ludwigsburg who for preparing high treason had been sentenced to death. I myself did not know the details of the case. I only know that at the Ludwigsburg penitentiary there were communist activities concerning which Woessner and the other man whose name I have forgotten bear the responsibility. I neither made the indictment nor did represent the prosecution at the trial; and I also did not deal with the case at the pardon instance.
Q. Can you tell us the name of the judge who presented the case?
A. The judge in charge of preparing for trial the Mannheim case was Landegrichtsrat Prossler. I may say that I put forward the demand for the death sentences under compulsion, and I put it forward for all eleven defendants, but afterwards during the pardon procedure, I did what I could for three of the persons on whom the death sentence had been passed, but I was unsuccessful. I did persuade the general public prosecutor concerning a pardon for three of the five who had been sentenced to death to give his urgent support; among them was a sixty year old woman by tic name of Wagner, but the Reich Ministry of Justice in all cases.
MR. WOOLEYHAN: One moment, witness. May it please the Court, the Prosecution requests that the questioning be directed a little more; after all, one only has to say so and so is the name; if the witness is allowed to talk five minutes thereafter -
THE PRESIDENT: It would seem that it is proper at this time to admonish the witness to merely answer the question, and not to go beyond the question in a long, rambling answer. Try to pay attention to the question and merely answer it and wait for the next question.
BY DR. MANDRY:
Q. In your affidavit you stated that you had asked for the death sentence in the case of all the defendants?
A. Yes.
Q. Is that not in error; was the death sentence not actually demanded in the case of eight of those defendants?
A. No, I demanded the death sentence for all defendants. I remember that quite definitely; I was not allowed to depart from tho decree.
Q. Are the verdicts still available; have you seen them recently?
A. No.
Q. Do you know that Wagner had several previous convictions?
A. I believe that she had one previous conviction for preparing of high treason.
Q. In your affidavit you state that Cuhorst had sentences multiplied in leaflets and that he had to distribute it to Party offices. How do you know that? How do you know that it was Cuhorst who caused these sentences to be printed and distributed?
A. We were concerned with the Fussen case. In that case the verdict was printed and was published in the form of Leaflet.
I heard at the time that this was done at the instance of Cuhorst.
Q. Who told you so?
A. Well, I don't remember who it was, but it was an established fact for us at the time, and I also remember that the Reich ministry of Justice had asked for a report as to how it was that this sentence had been published as a leaflet. Furthermore, we were asked as to whom the leaflets bad been distributed.
Q. Was that a unique case?
A. It is the only case of which I am aware where a sentence was printed, and I am of the opinion that in this case it was entirely unnecessary, for the few sentences which were needed for purposes of information could have been publisher through the usual channels.
Q. I would like you to develop the responsibility of the Defendant, Cuhorst, concerning the publications. Can you tell us a little more about that?
A. I consider it entirely out of the question that anybody but Cuhorst should have been responsible for this publication.
Q. Which Party offices were in particular cases authorized to demand to see the verdict?
A. As far as I know, it was the Gau-Leadership Office which was entitled to demand to see a verdict. In certain cases according to who the defendant was, the Kreis Office, too, could ask to see the verdict if the person was a Party member or if the person concerned was a member of the Reich Labor Service, the Reich Labor Service could demand to see it, or in the case of a member of the H. J., the Hitler Youth Office could ask to see it, but this was a case that could merely have propaganda interests from a Party point of view.