THE PRESIDENT: The objection is sustained
MR. LAFOLLETTE: I would like to go on to the second pictures in here. They are not all the same kind, Your Honor.
THE PRESIDENT: Very well, The objection will be sustained as to the two which have thus far discussed.
MR. LAFOLLETTE: The second picture showing the Jewish firm in Leipzig -
DR. BRIEGER: Mr. Lafollette, may I -
MR. LaFOLLETTE: Just a minute please, I will make a very quick offer and then Dr. Brieger can make his objection. You will find here on the back of the pictures the number 103.
A 103.
Q Yes, 103. A group of men sitting around a table in the inside of a room, and then 103, a long row of either full or empty bottles -I can't tell from this print; they are also in 103. I will ask you whether you recall whether those were taken in 1940 the last of October or the first of November.
A These photos were taken at a club evening of the special court club. The interior I took myself. The originals are quite clear and they are good photographs from the technical point of view, and there nobody could imagine that I perhaps was not quite sober at that club either. The other two photographs show members of the special court and in the center there is the prosecution witness, the Prosecutor Dr. Berthold Schwarz. That club evening was attended by about sixteen or eighteen people, and we did not abstain from liquor that evening I brought eighteen bottles of wine which were consumed; that would amount to one bottle per head.
Q How about the food? How much food -
THE PRESIDENT: I think we are going into a elemental state; restrainingly; I think it is a waste of our time. You offer these exhibits or any of them?
MR. LAFOLLETTE: I offer only those now that I am talking about.
THE PRESIDENT: Any objection?
DR. BRIEGER: Yes, Your Honor.
THE PRESIDENT: Objection sustained.
MR. LAFOLLETTE: May I continued as the exhibit having been marked for identification. We will go on to the next exhibit.
THE PRESIDENT: It may be marked for identification -- offered and rejected.
MR. LAFOLLETTE: The Prosecution offers for identification as Prosecution's Exhibit 573 the Exhibit 2320 and I ask that it be distributed.
THE PRESIDENT:NG-2320?
MR. LaFOLLETTE: Right, Your Honor. On the English copy, Your Honors, the date has been a misprint at the top; it should be 1940, not 1943. May 23, 1940; it is correct on the German copy I am advised.
Q I will ask you, witness, whether or not that isn't a correct copy of a letter which you wrote to the president of the Court of Appeals of Stuttgart explaining a remark which you had made about the Archbishop Groeber of Freiburg, at the request of the Oberlandsgerichtspresident that you make some formal apology; is that correct?
A Mr. Prosecutor, this letter comes from my personnel file, and I have already stated that in these personnel files, as far as they as they have been submitted by the prosecution, several documents are missing as for example, this one, and the judgment by the party disciplinary court. Therefore, this letter belongs to the other documents which have already been introduced and which deal with this case. They come from my personnel file. The matters in which I myself had gone too far had this outcome. The Reich Minister expressed his disaproval to me and everybody concerned was satisfied with that.
MR. LAFOLLETTE: The Prosecution offers as Prosecution Exhibit 575 document NG-2320.
THE PRESIDENT: The exhibit is received.
Q I want to talk to you about the Pitra case just a minute -I am sorry, Your Honor, I though I had the book marked. First, I think you said yesterday that in the Pitra case there was no death sentence passed by you because you didn't remember that a nullity plea was filed. Could not the Pitra case have been opened by a motion to reopen the proceedings as well as by a nullity plea?
A I don't believe so because we would have heard of it if a motion for reopening of trial had been made, and I am sure I would have heard of that, for we would have heard if the penal chamber in a retrial had dealt with the case. I only remember the trial of 12th August; I remember the file note, I remember how long the trial lasted; I remember who was the defense counsel; and I also remember some general circumstances which made me draw the conclusions which in fact I did draw. I also know from the statements under oath, from a lawyer's office that a death sentence had not yet been issued by the 12th August 1942.
Q Did Dr. Brieger submit to you, as quickly as he received them, German copies of the prosecution's document books? You don't have to answer it unless you wish to, but did he as a fact give you those books -- you remember -- did you look at them?
A Mr. Prosecutor, I don't know what books you are referring to.
Q I am referring to the German copies of the prosecution's document books. Did you see them as soon as your attorney got them -just as a general matter?
A The documents which the Prosecution introduced against me I saw I think all of those, both in German and in the English version; it is possible that just one or two of the documents may have escaped my notice.
MR. LAFOLLETTE: I think this court will take judicial notice of its own record.
I would like to point out that the Document NG-485, Exhibit 209, which is the affidavit of Eberhard Schwarz, was introduced on the 2nd of April, 1947 by my record; also that the witness Schwartz was produced and testified upon Eberhard Schwarz upon direct examination on the 17th of April, 1947 -- if I said 1945 before, I mean 1947 -
DR. BRIEGER: The passages from the transcript I have already mentioned to the Tribunal. -
MR. LAFOLLETTE: If your Honors please, we have about a minute. There is a matter in this transcript that I would like to ask the witness about, and I haven't found it. If we might recess now -
THE PRESIDENT: We will recess for fifteen minutes.
(a recess was taken.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: One matter has been called to our attention which may be disposed of at this time. It arises out of the fact that it was necessary, as counsel knows, to declare a mistrial in the case against the Defendant Engert.
In view of the fact that Engert is no longer involved in this particular trial, it becomes our duty to make an order setting aside the appointment of counsel Dr. Link as attorney for the former Defendant Engert. I will not read the order which is being signed at this time because it is of minor importance, but the record may snow that a portion of the order provides that by reason of the possibility that the Defendant Engert may hereafter be tried on the same indictment involved in this case, it is ordered that Dr. Heinrich Link may, at his own option, have the privilege of an unofficial observer and, as such, may continue at his potion to take his place at the counsel table in the courtroom of Tribunal III. That is a matter purely for his convenience if his relationship with the Defendant Engert seems to require it. His official connection is terminated.
BY MR. LAFOLLETTE:
Q. Did you discuss the Petra Case and the Defendant Eberhard Schwarz' affidavit with your attorney before he came here and took the stand? Dr. Brieger, do you remember?
A. Naturally, I did discuss that matter with Dr. Brieger and we found that the witness, Dr. Eberhard Schwarz, in the Petra Case was not quite sure of himself when he gave his testimony. That is shown in the affidavit and the relevant passages in the transcript. The witness Schwarz no longer remembered and that is Quite under standable, whether in that case clemency had been granted or whether a second judgment was passed or whatever else had happened.
Q. I am referring to the cross examination now by Dr. Brieger on the 17th of April. You were present in the courtroom while Dr. Brieger was cross examining Eberhard Schwarz, were you not?
THE PRESIDENT: The record shows that he was present.
BY MR. LAFOLLETTE:
Q. Witness, do you know anything about--here was a series of questions asked Eberhard Schwarz by Brieger and answers) "QUESTION:
Witness, do you know anything about Cuhorst's attitude to the pardon?"
That was the pardon for Pitra.
"ANSWER: No, I know nothing about that. I never saw his opinion on pardon pleas.
"QUESTION: Witness, do you know that on account of the regulations even in force at that time in the case of every pardon, the judge who had passed the sentence had to ask about his views?
"ANSWER: Yes, I do know that."
I will ask you whether or not now you say I believe that you knew nothing about the pardon for Pitra, that he was only sentenced to eight years.
A. Mr. Prosecutor, when he Pitra case was discussed my own investigations hadn't yet got to that point where I had the dates available which I have at my disposal now.
According to the documentary evidence which I have now and in particular since I have had a look at certain files, I can say with absolute certainty that in the Pitra Case clemency was not granted but from the very beginning a prison sentence was passed. I remember the case now, and I remember it the same way as the affiant of the defense. That is all I can say about the Pitra Case.
Q. Now, in the Togni case where there was a pardon, I think you said that you had assisted in obtaining that pardon; isn't it a fact that the pardon had to be granted and you agreed to it because of the pressure of the Foreign Office of the Reich?
A. Mr. Prosecutor, the Foreign Office of the Reich was in no way interested in the trial against Louisa Togni. I found, and the judge who wrote the report also found, and the witness Rimilin more or less said that hero in his testimony, that in that case the court, at its own initiative, made a clemency plea.
It is quite possible that in that case, in accordance with the directives some of which have been introduced by the Prosecution, in the clemency proceedings of the Reich Ministry of Justice, the Foreign Office did play a part. When I was interrogated here, one of the interrogators -- I believe it was Mr. Einstein --- told me something like it too, but I don't know.
Q. Do you know a man who was a yound man around your court in Stuttgart by the name of Hans Laducinski?
A. No. It is possible that that was the name of a defendant.
Q. No. That was the name of a young assessor who was present at your court and who states that several times between January and June, 1943, in his presence you made the statement, when leaving the judges: chamber to go to the bench: "Now we will go to the slaughter bench. " I think you testified that you were positive you never made that statement at any time when you went to sit upon the bench as a judge.
Are you still positive?
A. Mr. Prosecutor, I still maintain that at the special court there was never a young man employed, a young man by the name of Hans Laducinski. The special court did not employ Referendars or assessors nor did any one of my section have such a striking name. Whether at the Prosecution perhaps there was a young man of that name I don't know; but certainly I would have noticed that name with the Prosecution if he had been there. In our judges' room or on the way from the judges' room to the courtroom a man of the name Hans Laducinski was never present. This is the first time I heard that name and my assumption is, therefore, that perhaps he was a defendant.
Q He worked at a civil senate of the Oberlandsgericht, Herr Cuhorst, and I will ask you whether or not you ever stated to the Public Prosecutor, Dr. Bogenrieder, when you passed him on the way to the courtroom or the courthouse: "Today we will again supply you with heads," during the time between January and June, 1943.
A The case of Laducinski can now be considered as finished and we are now concerned with the senior public prosecutor Bogenrieter with whom I often did discuss my cases because he was the deputy department chief of the political criminal division of the prosecution.
Q We seem to be -- go on.
A (Continuing) In the form in which you have just put that question to me, Dr. Bogenrieter. For the rest, I came to the courthouse so early that the public prosecutors as a rule hadn't arrived yet; and before the trial, as a rule, I talked very little with the prosecutors because they did not change their clothes in the judges' chamber but went to the courtroom straight from their own offices. Nor do I know -
THE PRESIDENT: I think you have completely answered the question. It was a very brief question. The answer was "No".
MR. LAFOLLETTE: The Prosecution now wishes to distribute the German NG-854 which is Exhibit 568 and the English NG-2169, which is the Party Trial.
BY MR. LAFOLLETTE:
Q Did you know Dr. Karl Quint?
A Dr. Klemm? I think that he was an attorney.
Q Dr. Karl Quint?
A Kling? I am not familiar with that name. I ought to have some documentary basis to recall that name.
Q I'll do the best I can, let me spell it for you, will you? Q-U-I-N-T, Quint.
A Quint?.
Q Yes.
A I don't recall that name.
Q He didn't go to the Ukraine with you? Do you know him now as a friend of Karl who is a personnel referent in Stuttgart? Does that help you any?
A That does not helt me. As far as I know I went to the Ukraine all alone. I came back all by myself. It is possible that I met somebody some acquaintance either on the way out or on the way back, but I cannot remember Dr. Karl Quint.
Q You don't know him as an official of the Ministry of the Eastern Administration of Justice?
A On my trip to the Ukraine I stayed in Berlin for a short time and at the Reich Ministry for the occupied eastern territories I received my travel orders. As far as I remember the competent official was Ministerial Councellor Dr. Wilhelmi. As to whether I spoke to any other people, I can't tell you now. I was only there for a short time and when I had got my papers together for my trip I took the next fast train via Koenigsberg to the place where I had been assigned and the file concerning this matter have been introduced.
MR. LAFOLLETTE: I have no further questions.
DR. BRIEGER: May I continue the redirect examination of my client, Herr Cuhorst?
THE PRESIDENT: I should like to ask him one general question before the redirect.
BY THE PRESIDENT:
Q Did you in either of the courts where you presided, try any cases which were based upon the Law for the Protection of German Blood and Honor?
A No, Your Honor, in Stuttgart all such cases were tried by the Penal Chamber of the District Court.
Q But you didn't try any in connection with the Penal Chamber of the District Court of Appeals? I said, in either court over which you presided, did you try any such cases?
A Neither the District Court of Appeal nor at the Special Court did I try such cases.
THE PRESIDENT: That is all. Redirect examination.
REDIRECT EXAMINATION BY DR. BRIEGER:
Q Witness, to start with, I want to ask you a few questions in connection with what Mr. Lafollette said about your work as a Gauspeaker. The first thing I would like to know is wether you have the copy of your instructions for Gauspeaker? I haven't got a copy and I need one.
Q Mr. Lafollette handed you one this morning. Witness, please take a good look at it and then tell the Tribunal whether all these provisions were ever put into that effect. I can well imagine that some of them only existed on paper and were never put into effect.
A From this document I gather that this was a brief statement in the organizational instructions of the NSDAP concerning Party Speakers. This statement, as I have said before, only mentions the Reich speakers, the so-called Reichseinsatzredner, the speakers employed in the Riech and the Gauspeakers who were at the disposal of the Gau Propaganda Leadership but the ordinary Gauspeakers are not listed.
Then there are a few statements of a general nature concerning the duties of these speakers and then it is stated quite clearly that as speakers for the Nazi Party only such persons will be appointed who are old Party members and who, at an earlier period, either as speakers or as political leaders, had been active.
I, myself, belonged to the first group for before the so-called seizure of power I did not work as a political leader. It seems to me that these extracts are not quite complete.
At the bottom there is a remark saying that the so-called Gau Expert Speakers do not have a rank as political leaders. As to how that affected the Gauspeakers, one would have to look at the organizational instructions to find that out. I, therefore, also did not hold an official rank, but I had be given an honorary rank so as to make it possible for me to wear a uniform.
That view of mine is corroborated by the extracts which have been presented by the prosecution.
Q.- Witness, I have in front of me your speech of the 3rd of November, 1943, which the prosecution put to you today. I am disappointed with that speech because it says exactly the same thing which has been said a hundred thousand times all over Germany, and therefore I ask you this. Am I correctly informed if I ask you now whether those speeches largely were based on instructions which you received from the higher authorities, and did you only have any liberty as to the embrodery?
A.- I made that speech on the 26th of November 1943. Generally speaking, the speakers were bound by the general instructions, which were also publicized in the press. As this news paper cutting shows, due to my professional experience I also discussed a few matters which depressed the population at that time; in particular I mentioned the importance of the supply control regulations. I told my audience that they should remain moderate in their grousing; they could grouse as much as they liked at the public, but there was a certain limit, and I asked them not to exceed that limit, otherwise they would render themselves liable to punishment. Further, I told my audience that there were certain secrets which should not be given away; that was the same in every war. All that is indicated by that newspaper report.
For the rest, I did have to adhere strictly to the directives issued to me.
Q.- Witness, if I may revert once again to this matter, according to the prosecution you are to be convicted of having been a confirmed National Socialist because you believed in a German victory. Would you like to say that you believed in a German victory mainly as a National Socialist, or as a German?
A.- Counsel, in war, politics are submerged completely in comparison with the exigencies of war. That I believed, above all, in the existence of my own people, as a German, was not conditioned by any party politics.
Q.- Witness, evidently the prosecution wants to say that Germany wanted to get some freedom of movement in the East, and I ask you whether Germans, for the first time under Adolf Hitler, or at a former time, had colonized in Russia?
MR. LA FOLLETTE: Just a minute. I object, Your Honor, for the reason that it intends to include a motive and purpose of the prosecution in this case which is clearly outside of proper redirect examination.
THE PRESIDENT: The objection is sustained.
BY DR. BRIEGER:
Q.- The Prosecution has referred to the Party program, evidently from the point of view--although that may have been a different point of view, don't hold me responsible for it--from the point of view of ascribing to you a particularly good knowledge of matters such as they developed afterwards under the National Socialist regime. Therefore, in particular, because evidently you are to be made out here as a prominent National Socialist, I ask you, firstly, did you ever talk to Adolf Hitler?
A.- No.
MR. LA FOLLETTE: I object. I move the answer be stricken, and I object to the question for the reason that it does not go to any crime for which the defendant is indicted.
THE PRESIDENT: The motion is denied.
BY DR. BRIEGER:
Q.- Did you ever talk to Goering?
A.- No, I never talked to any one of the leading people.
Q.- You said to-day--well, no--but I assume that every now and then you talked to your own Gau Leader.
A.- Naturally I did.
Q.- Did your own Gau Leader ever tell you anything confidential about the way in which National Socialists wanted to shape the future, I mean at that time, many years before the war?
Just wait, for a moment, with your answer. Did he, at that time, tell you that it was interned to burn down the Jewish synogogues in the autumn?
A.- The Gau Leader in Wuertternberg never gave me any political instructions. The relationship between the Gau Leader and myself was altogether cool and ceremonial, in particular--as the photographs which the prosecution has introduced show, in the Reissing case at Villa Reitzenstein, which today is still used as a governmental building-after I myself had inspected matters on the spot. Those photographs were put to me today.
Q.- May I have a copy of that?
THE PRESIDENT: We ruled once that these photographs were irrelevant, incompetent, and immaterial. I don't know what they have to do with the case.
DR. BRIEGER: I am not referring just now to the photographs; I am referring to the sentence of the party.
BY DR. BRIEGER:
Q.- Do you have any of that in your possession?
A.- Yes, yes.
Q.- Well, then, would you open that at page 3?
A.- Well, yes, I have got it.
Q.- I think that page is particularly important because there is no evaluation here, but your actual words are quoted.
Is there anything you would like to add, from this point of view, to the statements you made this morning?
A.- The statements which are contained in the judgment of tho Party Disciplinary Court are naturally somewhat exaggerated in the other direction. It would be easy for me if today, under changed conditions, I would assert that is what I said about the Party. However, I can say this much.
As far as the meaning is concerned, that is what I said in those criminal proceedings against Wolf as to certain Party bosses.
Q.- Therefore this judgment corroborates your own statement made this morning on this case?
THE PRESIDENT: That is a matter of a conclusion to be drawn without further testimony.
BY DR. BRIEGER:
Q.- I now want to discuss your work as a judge in the Occupied Eastern Territories, where you appeared as a judge once. I would like to ask you one thing in that connection because even in peace time, here, the conditions of the employment of judges are quite different from what they are in the United States of America.
THE PRESIDENT: Instead of stating each time what you would like to ask and then asking it, just ask the question. Almost invariably you first give us a statement of what you intend to ask, and then you ask it. That is a waste of time.
BY DR. BRIEGER:
Q.- As to the court where you sat as an associate judge, could that court just as well have employed an assessor? That is to say, could that court just as well have employed an assessor who was not yet permanently appointed as a judge?
A.- Yes, an assessor could have been assigned, or a lawyer who had been called up for sufficient service. Unless I am quite wrong, the judge in charge of reporting was in fact an attorney who had been assigned to the functions of a judge.
Q.- You also mentioned that the judges attended their sessions in Party uniforms. Are you sure that they actually wore Party uniforms, or was it perhaps like this? Did the judges in the Occupied Eastern Territories wear the uniforms of a civil servant?
A.- In the Occupied Eastern Territories all civil servants wore the uniform of the civil service.
As I, because of my temporary assignment, naturally could not procure the uniform of a civil servant, I wore tho Party uniform without insignia. As is revealed by the document which the prosecution has introduced, the intention was to provide me with the uniform of a civil servant; but that did not happen, because I returned.
THE PRESIDENT: We think the matter of the uniform is of such minute importance that we will give it no consideration.
BY DR. BRIEGER:
Q Witness, in document NG-983 there is contained a memorandum which shows that an earlier time you had made an attempt to get into the armed forces. You find that on page 11 in NG-983. It also shows that you had tried to get employment as a judge elsewhere.
Have you found it, witness?
A This note, which I probably put down myself, shows me that I tried with all means to got away from the Special Court, and secondly, it shows, as I have already said, that I would not try to get to the District Court at Heilbronn.
Q Have you finished?
A Yes.
Q The prosecution today put to you a judgment where sexual crimes are involved and where several juveniles and a Pole were involved. The case was tried, with you as the presiding judge, and only the Pole was convicted. Was the situation in that case the same as you stressed it in connection with other cases? That is to say, did you have no influence on the prosecution, as such, and all you could do was deal with the defendants who had been indicted before your court?
A In the Mroviec case the situation was that the perpetrators of the sexual offenses wore all boys between 12 and 18 years of age. Those between 14 and 18 were only partly responsible for their actions before the law, and it was the general custom in Stuttgart for such juvenile offenders to be tried by the juvenile court or the juvenile penal chambers where special, experienced judges sat. I had no influence on that.
Q Witness, as concerns the judgments which have been introduced against you, I shall ask other witnesses about these matters as far as I can assume that they have some knowledge about them.
Are there any additional statements you would like to make concerning the Jan case?
AAs concerns the Jan case, I have been unable to discover whether the copy and the original are identical. I have no additional remarks to make.
Q I would like to ask you some questions about the judgnent in the App and Kreutle case.
A There is a serious mistake in the German version of that case, and that might lead people to draw erroneous conclusions. On page 2 the Registrar is mentioned. Naturally, he was not a Staatssekretaer, an Undersecretary, but he was a Justiz Secretary, a Justice official. There is some difference there.
That is all I have to say about this case.
Q How about the Wasmer judgnent?
A I have the Wasmer judgnent before me, and there is nothing else I want to say about that. All you need to see you can gather from the judgments themselves.
Q Now, witness, I am passing on to another matter. May I now ask you to explain something in the Pietra case, something concerning our joint efforts?
A Counsel, I believe in this case all explanations have been given that can be given.
Q I merely wanted to ask you whether it is correct that you told me at the time that you didn't remember the case, and that we had to make repeated efforts of all kinds because you yourself could not remember the case properly.
AAt first that case struck me as rather curious, and it was only gradually that my memory served me again. Now, however, my memory has become certain.
Q As far as I remember, is it correct that at the time when I cross-examined the witness Schwarz I either put all questions to him, or the majority of questions, without previously having had an opportunity to discuss that matter with you? I don't remember that for certain now, but can you tell me?
A We were not able to discuss that natter beforehand.
DR. BRIEGER: Thank you, that is enough.
THE PRESIDENT: Witness, in what capacity was it that you went to Norway in 1945? I think perhaps you have told us, but I don't remember.
THE WITNESS: I went there as an officer of the armed forces.
THE PRESIDENT: That is all.
MR. LAFOLLETTE: If Your Honor please, I think I can straighten up the case record. I had every intention of asking the witness this; I ask that I might be able to ask one question on cross-examination.
THE PRESIDENT: Let's hear the question.
RECROSS-EXAMINATION BY MR. LAFOLLETTE:
Q In the Krupa case, you said that you thought it was murder. I hand you an article, or a copy from an article in the Stuttgart Courier, or in the Stuttgart paper, describing that Krupa case. Does that refresh your memory? Wasn't that an arson case?
AAccording to this notice in the press, it was a case of arson, but I, as well as prosecutor Rimelin, assumed that the Krupa case was a Polish case, that is to say, it was the case of a Pole who had murdered his fiancee.
Q What do you now say? Do you remember it as an arson case, or was it a murder case?
A The Krupa case? I assume that, after all, it was a case of arson, if this notice in the press is identical with the original.
MR. LA FOLLETTE: Yes. Subsequently I will bring the paper up. Thank you. That is all.
THE PRESIDENT: The witness is excused.
(Witness excused)
You may call your next witness.
OTTO KUESTNER, a witness, took the stand and testified as follows
JUDGE HARDING: Hold up your right hand and repeat after me the following oath: