THE MARSHAL: The Tribunal is again in session.
DR. DOETZER: May it please the Tribunal, I ask to be permitted to continue:
The moral order of the world, the conscience of justice, and the generally recognized rules of international law which stand above every national idea of right and wrong fund, according to law, the foundation of the obligations of the state. But according to general opinion the judge had to apply national laws even when contrary to international law. The German Professor of international Law Priepel in his book "International and National Law" (Pages 263, Leipzig 1899) has demonstrated convincingly that this is not only a German or a continental point of view, but that Anglo-American jurisprudence holds the same view.
Add to this, furthermore, the fact that the German judge is under the strict obligation to act according to the law proclaimed by the state. German and European traditions required him not to question the legitimacy of the laws. He thus followed the perception that no man by his own reason ought to think himself wiser than the law, which is the consummation of reason. Due to education, of tradition , and due to the fact that the doctrines legal positivism prevailed in jurisprudence and judicial practice, the possibility of rebelling against a law was closed to him. He could not even undertake that kind of examination of which Bentham once said, "I would rebel whenever the probable bad results of rebellion appeared to me smaller than the probable bad results of submission."
This will be proved through reference to literature and judicial practice.
3) The Prosecution charges the Senate President Nebelung with:
a) participation in a conspiracy,
b) war crimes,
c) crimes against humanity committed during the war, and
d) membership of an organization which has been declared criminal.
a) The Conspiracy.
Control Councel Law No. 10, in my opinion, makes liable, to punishment only conspiracy for the purpose of committing crimes against the peace with which the defendant is not charged. I refer in this connection to the legal explanations of my colleague Dr. Haensel and therefore consider this charge unfounded.
b) and c) Crimes against Humanity during the War and War Crimes.
The prosecution, in its presentation of evidence, has introduced parts of the personal files and three affidavits of the defendant (Prosecution Exhibit Nos. 409, 13, 175, 177) as well as an affidavit of the attorney Dr. Gruenwald (Prosecution Exhibit 283), in which the activity of Nebelung as Senate President of the People's Court is mentioned. All other documents and statements by witnesses in regard to the People's Court have no bearing upon the Senate, headed by him since 1 July 1944, and his legal decisions. With a few exceptions, they date from a time when he was not yet with the People's Court, but was still at the front as a soldier. Moreover, the Prosecution Exhibits Nos. 146, 147, and 301, show plainly that the People's Court cannot be regarded as a unit of the "blood thirsty terror judges". On the contrary, in my cross-examination of the prosecution witness Gruenwald, the latter quite clearly praised Nebelung's activities as a judge.
Furthermore, the prosecution has not proven that Nebelung, as judge of the People's Court, had any connection with the Gestapo or other criminal organizations. It also has not been proven that he applied German laws or individual legal decrees which the prosecution, claims are of a criminal character. The prosecution, according to its own argumentation, will not wish to maintain that, from the mere fact of Nebelung's appointment on 1 July 1944 as Senate President of the People's Court and from his membership in the NSDAP it could be concluded that Nebelung by his acceptance had participated in violating article II, No. 1, b and c or been connected with the planning and execution thereof. Incidentally, it should be mentioned that Nebelung's appointment represented a demotion compared to his former position as president of the district Court of Appeal.
d) Membership in Criminal Organizations.
My client was Ortsgruppenleiter of the NSDAP in Eschershausen and Seesen. According to the verdict of the IMT the prosecution must prove that he was still as Ortsgruppenleiter after 1 September 1939 and that he knew of the criminal character of this organization, Up to the present this has not been done. As a matter of fact, the opposite is shown by the sworn statements of the defendant in the affidavit (Prosecution Exhibit No. 13).
'In view of this state of affairs the defense is placed before the decision as to whether it should present to the Tribunal evidence exenerating Nebelung. The acknowledgement gained by experience of the validity of the slogan "qui S'excuse, s'ascuse" cannot simply be over looked. A petition to the Tribunal seems worth being advocated, and it is hereby being made, even if its formal admissibility is doubtful according to Ordinance No. 7 Art.
XI, that the defendant Nebelung be released from Prosecution. Should the Tribunal consider this not admissible, I shall allow myself to be guided in my presentation of evidence by an experience in the life of Sir Edward Coke (1552-1635). "Never," he said, "never will you find anyone who has distinguished himself in the knowledge of the law who did not reap from the heart of this divine knowledge honestly, earnestness, and integrity. So far I have never seen a man leading a dissipated and disorderly life attain a sound and complete knowledge of these laws; on the other hand I never saw a man distinguished by excellent power of judgment in law who was not honorable, productive, and virtuous."
I intend to manifest the judicial and political activities of my client through affidavits, witnesses, and through examination of my client. This will result in the picture of an extremely capable man, a German idealist dedicated to a simple, moral and humane way of life, whose relationships to his fellow-men were guided by the humanistic conception that the man is good. His course of life cannot be separated from the fate of the German nation in the last 40 years. He was bound to it and no general nor personal, no material nor spiritual distress was spared him, When in the period after World War I two fronts emerged from the political battle of everyone against everyone with ever increasing and ever more embittered contrasts, he felt that the insurmountable contrast between the nationalists who were not socialistically minded, and the socialists who were internationally minded, could only be overcome by a party which claimed that it wanted to unite both in order to form a new Germany. He accepted it as a jurist, as it demanded a German common law arising out of German legal thinking and promised justice for every German.
He believed in the good, and when the dictatorship became a reality, he hoped that, following Plato's train of thought, the tyrant would be converted into a philosopher. With anxiety he saw the power of the police institutions become stronger and stronger. Throwing into the fight the full force of his personality he fought, as President of the District Court of Appeals in Brunswick (Braunschweig) against the interference with the independence of the courts and thus against the Gestapo and all other agencies. He protected his judges against attacks of the party and the SS. His life was governed by the demands for right, and justice. When the German army was victorious he declared that he did not wish to live in any country where justice did not prevail. During the war he was a soldier among soldiers. When, in the course of the war, he was promoted to Lieutenant he had a fatherly relationship to his men; when in enemy territory he did not allow his men to commit the slightest offense. Very ill with malaria, he returned to his job as President of the District Court of Appeals in 1943. From there he followed his call to the People's Court in the same way as a soldier would obey an order. He said good-bye to his judges in Braunschweig with these words: "I do not know if things will turn out all right". He acted here in the same spirit and in the same manner as in Braunschweig.
It is the tragedy of his life that, in spite of all resistance in his own field, he as an old national socialist, was unable to prevent the degeneration of a system with all its terrible consequences for Germany and the whole world. Although he is indicted as a war criminal today, his judges remember him as a man of good intentions and an idealist shamelessly deceived.
DR. BRIEGER: Your Honors, before I take the liberty to begin ay opening speech I should like to clarify whether my revised text copies have been submitted to every one of the judges, prosecutors, and also the other gentlemen and the ladies, that is whether all have received a copy which has written on it "Revised Text." I assume that that has been done, and may I ask to be permitted to begin my opening statement.
THE PRESIDENT: We have your revised text.
DR. BRIEGER: Your Honors!
With regard to the personality of my client, Hermann Cuhorst, I wish to point out that his personal particulars were stated incorrectly in the indictment. The English version speaks of a " Chief Justice" while he was merely a "Presiding Judge" , as "Senatepresident" he was the presiding judge at the first criminal chamber of the District Court of Appeal in Stuttgart, while in another subsidiary function he was presiding judge at the Special Court for the district of the District Court of Appeal at the District Court (Landesgericht) Stuttgart.
In Count 4 of the indictment it is stated that my client was a member of the SS while in the rubric of the indictment he has been quite rightly called merely a contributing member of the SS.
My client is the descendant of a family of which 10 generations have been serving in the Wuerttemberg church and state service, the five last generations as lawyers, judges and public prosecutors. It would not be correct to assume that only the happenings of the year 1933 were responsible for the leading social position which he held. Because of his descent he always felt that it was his special call and duty to uphold justice and thereby serve the interest of the state.
Soon after the state upheaval of 1933 the former judge was called into the Wuerttemberg Ministry of Justice, where he was repeatedly active in a moderating way to preserve the fruits of valuable Wuerttemberg tradition.
When the administration of the law was taken over by the Reich which involved the transfer of all high ministerial departments to Berlin, Cuhorst was appointed Senatepresident at the District Court of Appeal of his native city. He did not want to turn his back on his homeland and was content with the position of president of a Civil Chamber (Zivilsenat). He only left this position, which was in no way connected with the administration of criminal law, when his superior, the Supreme Judge of Wuerttemberg urged him to take over the Criminal Chamber and particularly the Special Court, in order to prevent at the very last minute the Reich Ministry of Justice from calling a Prussian Judge to Stuttgart who would not oppose the request for more severe punishment.
Unlike others who usually let their appointment to a responsible position turn their heads, my client never became a man who attached the slightest importance to personal comfort. Even his worst enemies will agree that Cuhorst has always behaved correctly in the administration of his duty and in his entire mode of life.
His peculiarity and possibly his weakness is his obstinacy which is an old inherent characteristic of the Swabian race. He is a clearly outlined personality. Such men always have enemies. The Prosecution profited by this for the moment. But even his most outspoken enemies can not accuse him of ignoble motives, least of all of seeking personal gain. The people who for many years have been his closest collaborators must know him best and they will all describe him as a man with a great sense of duty and responsibility, a man who lived under a great strain due to his strenuous work but by no means a brutal and hearless cad.
At this point I should like to make a correction in the English text. In my opinion, the English text should read "A man who lived under a great strain due to his enervating work, but by no means a brutal or heartless scoundrel."
The entire internal and external position of the Gasman people is so different from that of the United States of North America that it is very difficult to understand these completely different conditions for somebody coming from there. This fundamental difference demands almost superhuman understanding from the critic.
Especially during the last war, which had immediate effect on the hinterland, the people and its criminal judges maintained the opinion that while every day precious German people were killed at the front and at hone, the asocial criminal should not be left alive. It is easy today to reproach the judges of those years and say that they should have recognized the almost inhuman severity of those laws; whoever makes this accusation must always bear in mind that the last war itself was not less severe.
Here I should like to suggest a deletion in the English text. The English text reads: "It is easy today to reproach the judges of those years and say that they should have recognized the almost inhuman severity of those laws," and so forth. In this connection I ask to delete "almost inhuman."
The German judge without exception was bound to abide by the existing law. This has not only been so since 1933, but for centuries. The German judge therefore was bound by his oath of office to administer laws which were most severe and which to some extent even contained absolute threats of the death penalty.
Another thing which must seem strange to every American judge is the fact that the prestige of justice and of judges in particular has been very low in Germany since 1918 and that was most pronounced in that unfortunate Hitler speech of 1942. Since then everybody in Germany must have realized that the respected position which the judge still enjoyed at the turn of the century no longer existed and was never to return.
My client is mainly accused of having administered laws which do not conform to the fundamental laws of an unwritten higher justice, that he has administered laws in a way contrary to the laws of humanity, that his administration of justice has been one-sided and arbitrary and that this was done during the proceedings and in such a manner as rendered an orderly procedure impossible, especially with regard to an adequate possibility of defense for the defendant.
In judging the deeds of my client it will have to be considered whether he was a willing tool of this despotism or whether he did not do everything in his power to uphold and maintain the principles of justice, also in the sense of a higher justice, against the methods enforced by the state.
Before commenting briefly on the individual counts of the indictment, I wish to mention a few aims of my adduction of evidence.
Here I should like to have the English text changed again. It should be: "I wish to anticipate a few aims of my adduction of evidence."
It is my task and my aim to prove through witnesses, experts and expert opinion that these accusations against my client are unjustified. With regard to the accusation that he conducted proceedings merely on the basis of the indictment, fixed the dates for the proceedings at too short notice, refused to let the defense counsel examine the records and curtailed their rights during the trials, I wish to point out that the Procedures at the Special Courts in general, and especially when presided over by my client, did not greatly differ from those of other courts, that as a rule the legally requested speeding up of the procedure did not result in any curtailment of the defense nor otherwise in any disadvantage for the defendant, and that if this happened in an exceptional case this had by no means been intended by my client. I shall also prove that the trial of foreigners was strictly conducted according to law and that when determining the severity of the sentence the same aspects were taken into consideration as either aggravating or extenuating circumstances, as was done in the case of Germans.
I am going to prove to the Tribunal that those of the laws which were applied while my client was in office and which today are in part considered characteristic of a reign of terror, were used by my client to counteract criminal elements and not in order to contribute to a reign of terror. I furthermore am going to prove that it was not easy for my client to make these decisions.
My client claims that he as president of the court of colleagues (Kollegialgerichts) was always only primus inter pares, that he could not force his will on the other judges who were quite pronounced, mostly even, self-willed and powerful personalities, even if he had tried. Moreover the court of colleagues is precisely for the purpose of levelling out the human differences of the 3 or 5 Judges in order to get the greatest possible deliberation in the pronouncing of sentence. Here again I should like to correct the English text. It should read -- in order to obtain the most carefully weighed opinion.
My client claims that in the finding of the sentence he made it a principle not to allow inequalities to arise between the foreigner and the citizen before the law and especially to avoid all persecution outside the sphere of justice.
The submitting of evidence will show that there is no reason at all to accuse my client of favoring members of the party in power in a manner alien to the duties of a judge and most of all it will be proved that my client always and with all the energy he could muster opposed wishes of departments not connected with justice with regard to the course a trial was to take. All sentences of the Criminal Chamber and the Special Court Stuttgart which also bear the name of my client will demonstrate everything which I have to prove here.
My argument is rendered especially difficult by the fact, that, through no fault of my client, nearly all files of the Palace of Justice in Stuttgart were destroyed by air-raids. For the purpose of clarification of the circumstances nothing would please my client more than the submitting of all files of the 6-70000 defendants whose cases he handled between the years 1937-1944, The few original sentences which are still available are therefore especially valuable documents because they are, without any changes or alterations, the only documents which talk to us in the sober language of jurists and which exclude any errors about any important circumstances as they frequently occur in cases of testimony given by witnesses.
Here I start from the point that further exonerating sentences and decisions to which we no longer have access on account of the peculiarities of the proceedings of the Party (Parteiprozess), do not exist. Therefore I must strongly appeal to the Tribunal to consider with regard to the pronouncing of sentences under the presidency of my client only those facts as proven, which are actually proven by original documents of the District Court of Appeal and the Special Court Stuttgart, and not those which are based on testimony given by witnesses who were not concerned with the cases as judges and therefore do not guarantee that their testimony excludes the possibility of error with regard to all important points.
One of the most important points in the administration of Criminal law at all times and in all countries is the rule: "in dubio pro reo" and the Military Tribunals here have also adopted this principle as the corner-stone for their work in connection with Criminal Law.
The following can be said to the various counts of the indictment individually:
Roman numeral I. To count 1 of the indictment:
The opposing party accuses my client of becoming guilty of a conspiracy with other persons, including also the defendants at this trial. This accusation has no lawful basis and is not actually proven and I only state in order to complete the facts, that my client saw the majority of the co-defendants for the first time in his life when the indictment was served here in this house. Neither did my Client try to contact leading personalities of the Party, the Gestapo, or the Security Service in connection with his activity as judge.
The calculation that my client is supposed to have acted against the independency of judges, against law and justice and therefore against ethics of law will be shown as a misjudgement of the actual conditions, in the course of my submitting of evidence.
2. and 3. Before commenting on counts 2 and 3 of the indictment let some basic facts be given with regard to the limits of the competencies of the Criminal Chamber (Strafsenat) and the Special Courts, in agreement with the rule laid down by the High Tribunal to the effect that the efficacy of my client as Presiding Judge of the Criminal Chamber is to be discussed only in as far as this is necessary in order to round off the judgment of his activity as judge. The District Court of A peal which had already existed for over a century remained even after 1933 and up to the capitulation along with the People's Court which was established later the competent court for a number of cases of treason and high treason. In cases of the seditious undermining of the military morale the District Court of Appeal was competent at least in a subsidiary capacity.
A simplification in the proceedings of Criminal cases was for the first time carried out with great energy as early as in the first years after the first world war, since then it was continually extended and in the individual special regulations for the Special Courts this simplification did not show its first, but only its pronounced results. The competency of the District Courts of Appeal for cases of treason and high treason was, with regard to the Special Courts, secured by the Legislator, in order to keep up the ancient rules for the proceedings for these political offenses with a farreaching threat of punishment.
With regard to the Special Courts I will prove in opposition to the statements of the prosecution that they never were illegal courts for exceptional cases, but that they, as chambers of the district Courts, had a competency for everybody which was abstractly defined in law.
To count two of the indictment the following may be said:
Neither of the two above-mentioned courts pronounced political death sentences on Jews or foreigners; this will be proved by us only in order to complete the facts.
To count 3 of the indictment:
With regard to the fact that for the most severe political criminal cases the Criminal Chamber alone was competent, my evidence will prove, that the First Criminal Chamber of the District Court of Appeal in Stuttgart pronounced on an average only one death sentence per year, and all these death sentences only against German citizens.
A broader space in my argument will be required for Count 21 of the indictment in which my client is accused of participating in a reign of terror, the quelling of political opposition, abuse of regulations for proceedings in cases of citizens and foreigners which are supposed to have resulted in murder, brutalities, cruelties, tortures, atrocities, plundering of private property and inhuman acts. For those accusations the prosecution did not submit any evidence, and the prosecution will also not be able to submit evidence with regard to these accusations.
Neither do the cases against Jews enter the picture, because such cases were never brought before my client for sentencing.
Under the presidency of my client the Special Court at Stuttgart did not pronounce a death sentence in any political case. This is especially to be remembered here. That the Special Court Stuttgart pronounced death sentences in isolated cases of most severe general criminality and among these especially in cases of dangerous blackmarketeers and profiteers does not need to be and is not being denied here. In as far as still available and not already submitted these sentences will be submitted or explained by the judges who were officially concerned with these cases.
These death sentences were a result of the hard necessity of war conditions. Among the population they were generally approved. It will be shown that the most serious crimes against the war economy are severely punished also by persons in the then opposing camp, and that even today in view of the unchanging distressed condition of the German people the parties and unions in Germany continually demand in public demonstrations the death sentence for cases of severe profiteering.
When judging general criminal offenses, no difference was made between citizens and foreigners. This of course means that when sentencing criminal offenders, especially arch and habitual criminals, among them in repeated cases, persons convicted of indecent assaults, arson, burglary and other crimes, foreigners could not be granted a privileged position. On the other hand Cuhorst could not be forced to take a stronger attitude in principle either in the case of citizens or of foreigners and this in full agreement with the judges attached to him, because this seemed neither necessary nor is this a characteristic of the Swabian people. This tendency towards a middle way is a characteristic of the Swabian and is again and again shown in the more than 1,000 years' history of his race.
Therefore, it is not only a mere chance that from the establishing of the Special Court in Stuttgart until the capitulation it kept up the reputation of being one of the most lenient in Germany. The statistic material which is to be submitted will justify this.
In the English translation here it says, "The statistic material which is to be submitted". I should like to have the words deleted " which is to be submitted".
"The nerve racking fights of my client to keep to this middle and moderate way will be clearly evident in the course of the submitting of evidence.
To summarize, the following is already now to be said with regard to count 1-3 of the indictment:
The fact that my client acted always only in his capacity as judge must remain the starting point for all deliberations. Therefore, the initiating of the prosecution, the serving of the indictment and the carrying out of sentence were always outside the sphere of his activity as judge. He was subject to the law and there was no space in his mind for deliberations with regard to natural law when pronouncing a sentence. Here it must be emphasized that the ties to the standard law are traditionally for stronger in Germany than in the United States, namely the initiative of the judge is restricted to interpreting the existing legal conceptions and marshalling the facts of the case under these headings. The sharp division made between conceptions in criminal law and their continuous struggle among them had their roots in Germanic law, influences of church law and most of all in the codifications in criminal law which became more numerous from century to century. Already in the course of the 19th century deliberations with regard to natural law were relegated to the background by the activity of German jurists of world fame, and this retrograde development was accentuated by the fundamental philosophy of State and Law of this epoch. The development of Criminal Law ran parallel with this development of the Civil and State Law.
By relaxing rigid law and by borrowing from English and American conditions, a small but very active group of scientists and experts tried in the past decades to gain ground. Here I ask for a change in the text. It should say here " practitioners" instead of " experts".
Their activity was terminated without result a long time prior to the National Socialist epoch and never affected German Criminal Law.
Tied to the legally appointed government as judge and official and in view of the international recognition of this government, my client could have no doubts as long as he remained inside the law, to the application of which he was bound.
He did not participate in any deportations of foreigners to Germany, he only sentenced the foreigners who were put to trial by the prosecution if these foreigners were liable to punishment according to German law, and the carrying out of the sentence was in other hands. Therefore connections to the counts of the indictment changing persons of murder, extermination, enslavement, torture, etc. can not be seen, misdeeds which could be charged to government officials, officials of the party, the army, perhaps also to private persons, but under the existing conditions never to judges who were active only within their own state territory. For them it was only important that they acted within their own laws and put foreigners not into a worse position than citizens. Therefore they could not have had any feeling of guilt in connection with the above-mentioned individual crimes.
By stating this, the unavoidable central problem of this first proceeding, namely the position of the judge to the law should at least be touched. I will discuss this problem which with all its heights and depths points to past and future, once more at a later date.
To Count 4 of the indictment:
My statements at the last point of the indictment will be short. Here I do not need to concern myself with the evidence submitted by the prosecution.
No evidence was submitted. Therefore I am not forced by the proceeding itself, if I state that the record of the indictment is definitely correct according to which my client was only a contributing member of the SS, that is to say, not an active member of the SS. Therefore I only state for the sake of completion that evidence according to which my client is supposed to belong to the leading political officials (Amtstraeger) mentioned in the sentence of October 1946, will not be submitted.
For the moment I want to summarize as follows:
The evidence will show that my client has followed a consistent line throughout the years, during which he was President of the Special Court in Stuttgart and of a Senate of the Stuttgart Court of Appeals: lenient verdicts for political offenses, especially in cases of malicious attacks and those involving the undermining of military morale, severety - if justified by criminalistic considerations - only for non-political crimes, which, particularly during the time of war, demanded deterrent punishment because of their public danger end, therefore, also for the most severe cases of crimes against war economy.
"The defense now considers as exonerating documents those decrees affecting my client which were issued by the Reich Ministry of Justice."
In the translation unfortunately the translator left out one passage We should include here "submitted into evidence by the Prosecution" ((those decrees affecting my client submitted into evidence by the Prosecution.") "The evidence will show that this lenient line within the framework as outlined above was followed by my client throughout the period in which he held office in full agreement with his associate judges and inspite of all obstacles until such time as he was sent off to the Vehrmacht as Reserve Officer and he was taken prisoner of war on 6 May 1945.
"A judge who acted along this line and who was at all times bound by the law can not be a criminal."
DR. SCHUBERT: Dr. Schubert for the Defendant Oeschey.
May it please the Tribunal, The defendant, Oeschey, is charged by the prosecution on four counts, namely of participating in a conspiracy (Count 1 of the indictment), of committing war crimes (Count 2 of the indictment), of crimes against humanity (Count 3 of the indictment), and of participating in criminal organizations (Count 4 of the indictment). In reply, I intend to present the following:
Re Count 1 of the Indictment As far as Oeschey's being charged with having participated in a conspiracy to commit war crimes and crimes against humanity is concerned, I do not wish to go into detail with regards to the questions arising from this fact in this brief opening statement, but should like to leave the necessary observations in this regard to that one of my colleagues who will discuss it within the scope of the general defense.
In accordance with the judgment of the IMT, I deny the existence of any stipulation in the Control Council Law and in the statute of 3 August, 1945, which renders punishable a conspirary to commit war crimes or crimes against humanity. The fact that only a conspiracy to commit crimes against peace is mentioned therein clearly indicates that other types of conspiracies are not punishable.
Re Counts II and III of the Indictment Counts 2 and 3 of the indictment (war crimes and crimes against humanity) are appropriately being handled jointly.
The facts of the case are essentially the same, only that the individuals in question are different; count 2 of the indictment makes reference to civilians of the occupied territories and Jews, whereas in count 3 of the indictment indictment German civilians are also named.
The defendant, Oeschey, in his capacity as judge, is charged with having subjected foreigners and natives to a criminal misuse of penal proceedings, with having extirpated foreigners and Jews for trivial offenses, and thus having oppressed the political opposition, also that of the German people. As far as the charge in cipher 11 of the indictment is also being raised against Oeschey, that he sentenced non-German citizens for "high treason" , I am assuming that the indication will suffice that the prosecution has not presented one single case of high treason judged by Oeschey, that the Special Court, of which Oeschey was the presiding judge, was not at all competent for cases of high treason - competent was, as a matter of fact, only the People's Court aid that no case of high treason ever arose during the time when martial law was in force. Therefore, this count of the indictment is not applicable to the defendant.
In regard to the other charges the prosecution has offered extracts from several files of the Special Court as a basis for the indictment against Oeschey. In the majority of cases, however, the prosecution has submitted the evidence of witnesses, partly obtained through direct questioning of the witnesses in court, but for the most part through the presentation of affidavits. These affidavits, which were not always obtained by methods above reproach, were drawn up generally in the identical manner; to begin with, they contained general opinions and impressions of the witness concerning the personality and the manner with which the defendant judged the criminal cases presented to him, thereafter individual cases are specified in which the witness was either a participant in the trial or which he described on the basis of the files presented to him. Inasmuch as these affidavits contain the general viewpoints and opinions of the witnesses, they possess, to my way of thinking, no value as evidence, or in any event no important value. During the direst questioning of the witnesses, the Court has, with complete justifica tion, made it a point not to sustain questions pertaining to the personal opinion of witnesses for the witness should express himself in regard to the facts and should not render any judgments.
