The request of the defense counsel that the witness Stubenvoll should produce the slip of paper on which the latter had noted down his wife's statements about the sermon could not be complied with since the witness Stubenvoll as a witness had to make a statement about this same thing. This slip of paper could only have been introduced as a document if the witness had asked for it to support his memory.
Also those things with which the female witness Stubenvoll was charged out of the police records were legally admissible (RothaugExh. 198) The punitive measure of the verdict compared with punishments meted out elsewhere at that time is charitable.
(Page 129 of original)
15) In the case of Crasser the prosecution has submitted the indictment with Exh. 139. It is important that it is based on 5 counts:
1) Grasser designates the attempt on Hitler's life as a plot of the NSDAP.
2) He extols the entry of a German into the French army to fight against his own people.
3) He designates America and Russia as the coming victors in the war.
4) He stands up for the bombardment of the residential quarter of Schwabach because the German labour market was weakened by it.
5) He places doubt in the efficacy of the German night-fighter weapon.
The Public Prosecutor rated this act as a continued crime according to Par. 2 Section 1 of the Law against malicious attacks on State and Party.
First of all Rothaug fixed a day for the trial on 18 June 42 namely 2 July 42 without appointing a defense counsel, only on 30 June 1942(Recs Eng. 7508) does he take this step for reasons contained in the order of 30 June 42.
10477 1 Final Plea Rothaug In reply to the question of the prosecution in cross-examination as to whether Rothaug might have condemned Grasser because of some other deed than that assumed in the indictment, it can only be said that Grasser was not condemned because of a deed other than the one assumed in the indictment, but only because of other legal viewpoints, namely besides Par.
2 of the Law against malicious attacks on State and Party also Par. 4 of the Public Enemies Decree and Par. 5 Section I No. 1 of the Extraordinary War Penal Law Decree. The Court was bound to these if the defendant by one and the same deed had violated these provisions.
(Page 130 of original)
Here I refer to the Rothaug Exhibit 132 according to which the judge may pronounce guilty even him whom the Public Prosecutor would have acquitted. For example the Court may sentence for robbery or falsification of documents if the indictment reads theft or fraud. This authority includes likewise the corresponding obligation. Further the Court may exceed the requests of the Public Prosecutor in the manner and degree of punishment.
The decision of the Supreme Court (Rothaug Exh. 140) states that the judge has to base the decision on his conviction alone and not on the interpretation of others. That Rothaug's interpretation was the result of the study of the documents on 30 June 1942 is evident from the connection between Numbers I -- V of the order of 30 June 1942 and the day of appearance 2 July 42 (Prosecution Exh. 139). Nor is there any question of an arbitrary assumption.
To understand that the following must be observed:
(Page 131 of original)
In the deed in the indictment with its five counts, the Investigating Judge, when he issued the warrant of arrest, saw a crime of high treason (Rothaug Exh. 123) and (Rothaug Exh. 122). Also the office of the Public Prosecutor in Nuernberg itself described the same deed as a crime 10477 m of high treason in its report of 1 December 41 to the Chief Public Prosecutor at the Peoples' Court.
The statement of the witness Engert (Prosecution-Exh. 136) that the Chief Public Prosecutor had returned the case as a crime involving malicious attack on State or Party to the Office of the Public Prosecutor Nuernberg is false. The Chief Public Prosecutor handed over the case on 18 December 1941 to the Chief Public Prosecutor (Courts of Appeal) in Munich (Prosecution-Exh. 139) in accordance with Par. 5 II of the Jurisdiction Decree for prosecution as a crime of high treason (Prosecution-Exh. 139).
Also the Chief Public Prosecutor in Munich has not decreed that the deed submitted to him was possibly no crime of high treason. There was Quite a different reason for the fact that he handed over the case to the Office of the Public Prosecutor at the Special Court, Nuernberg as a case of malicious attack on State or Party. That is evident from his order of 11 April 42 (Prosecution-Exh. 139). In this order the proceedings because of utterances with reference to the extolling of the treasonable behaviour of a German, with reference to the propagation of prospects of victory for Russia and America, the justification of the bombardment of residential quarters and the inefficacy of the German night-fighter weapon are suspended because in the opinion of the Chief Public Prosecutor in Munich these counts of the accusation were believed to have been unauthenticated. And as there remained only one other count that was the remark about the attempt on the life of Hitler. With reference to this one remaining remark the Chief Public Prosecutor in Munich assumed no crime involving high treason but justly only a crime involving malicious attack on State or Party.
10477 n Final Plea Rothaug (Page 132 of original) For this the Nuernberg Prosecutor's Office was locally competent.
The following proves how reluctant Rothaug actually was to extend the matter unnecessarily and deliberately on his own bat:
Grasser protested against the arrest warrant issued by the Nuernberg investigating judge (Rothaug*Exh. 127). When the Nuernberg Chief Prosecutor submitted the case to the Special Court to obtain a decision (Exh. 129), Rothaug stated in the decree of 25 April 1942 (Rothaug-Exh. 130) that the arrest warrant which had been submitted was based on paragraph 83/11 of the criminal codes (the crime of high treason), and that, therefore, the Special Court had no jurisdiction. He suggested the alternative of issuing a correspondingly limited arrest warrant; for this purpose he referred to the back of page 44 of the records. He thus referred to the opinion held by the Attorney General in Munish, according to which only the remark concerning the Reichstag fire was to be proved. Following Rothaug's suggestion the arrest warrant was limited as follows: "He - Grasser - said in connection with the Munich assassination of November 1939: "This looks to me like the Reichstag fire at the time." An offence pursuant to paragraph 2 of the law on malicious attacks on State and Party (Heimtueckegesetz)." Bnd of quotation..
Only now came the indictment which - ignoring the premise limited to one count - covered the whole original complex of 5 counts. Indictment of 3 June 1942, Prosecution Exh. 139.
These additional counts, which the prosecutor, the investigating judge, the Supreme Reich Attorney (Oberreichsanwalt), and also the Attorney General in Munich originally considered as high treason, compelled Rothaug to reconsider the charge from a legal point of view, and (Page 133 of original) brought him to the conclusion that Grasser, if he had made all those 10477 o remarks as assumed by the prosecution, could be suspected, being an old communist functionary, of having exploited the existing dejected attitude of those workers in the armament factories who were overstrained by reason of the war.
The decree issued by the Attorney General in Munich was not binding for the Nuernberg prosecutor.
Besides, it is a general rule when a case has been dismissed, that the prosecutor may at any time refer back to the evidence which had been dropped, and base his indictment on this. (Rothaug-Exh. 126).
This practice was adhered to in the Grassner case, although the former legal view on the crime had been dropped without stating any reason for this action. The court, however, was not bound by this novel legal evaluation of the evidence by the prosecution.
Following his decree of 30 June 1942 Rothaug informed the witness Enger that this way of submitting the indictment, based on the original 5 counts, would force the court to pass a more severe verdict, possibly the death penalty, if those 5 counts could be proved. Both Engert and Rothaug's colleagues shared Rothaug's opinion. Soon afterwards Engert informed Rothaug that the Ministry, following a telephone conversation, agreed to the more severe legal views as expounded by Rothaug, although they were of the opinion that a long penal servitude term would suffice. This did not mean, however, that Engert sided with the Ministry. If he had intended to do that, the whole matter could have been settled in a very simple manner.
Final Plea Rothaug (Page 134 of original) He would only have had to withdraw the suit and present the files to the Ministry.
After the facts were proven, this same Engert declared that he will take the motion for the death-sentence "upon his own responsibility".
Neither he nor Doebig made any attempt to soften the court. The transparent allegation of Engert on this point are according to Rothaugs 10477 p explanation deliberately untrue.
(Pros. Exh. 237), (Prot. Engl. p. 1750 - 1767 and 1837 - 1867). Doebig himself does not claim such an influence.
Doebig appeared in the conference room during a recess. He wanted to be of help to the court in finding a safe basis for the judgment. He talked about the application of par. 5, ch. 1 fig. 1. of the "Kriegssonderstrafrechts V O" (Special-Wartime Penal Code) particularly about the notion of "Publicity". The court had considered this point of view already on his own accord.
(Page 135 of original)
As to the evaluation of the act from the view-point of substantive Law it is at first to be referred to the reasons in the judgment of 2. July 1942 (Pros. Exh. 139) which Rothaug, however, did not sign.
It is an experience of both wars that the labor force used in war industry is because of the heavy strain and strongly reduced nourishment particularly exposed to defeatist and communistic utterances. And it was known from the first world war that communistic subversive activities had a particularly dangerous effect within the war industry. For that reason all the district attorneys who dealt with this matter and also the investigating magistrate considered the matter from the very beginning as communistic high-treason. (Rothaug Exh. 7).
At that the fact that Grasser was an active communistic functionary also entered into the consideration. If Grasser made the statements attributed to him at his place of work then, considering his active political activities in the past, he knew as a trained communistic functionary only too well that the ideas represented by him found a willing ear with people of the war industry living under a special war strain and therewith could have most effective publicity possibilities.
(Page 136 of original)
This subversive work by Crasser did then not have high treason as its immediate objective, as much as he might have had in mind the 10477 q bolshevisation - of Germany.
His immediate objective was to shake the confidence of the people around him that the war will end favorably and thus to hurt the German war potential. Therefore Par. 5, ch. 1, Fig. 1, of the "Kriegssonderstrafrechts VO" (special wartime penal decree) was applied.
The fact that Grasser was a Communist was, as the reasons in the judgment show, a point in the evidence for the intentions he pursued. But it was not a reason for his conviction altogether, so that it cannot be said that Grasser was persecuted as a political opponent.
How much this judgment corresponded with the line established by the Reichsgericht can be seen by comparison to Pros. Exh. 247.
It was sufficient for the inner part of the act of a malicious attack against the state or Party (Heimtueckevergehen) that an utterance was fit to undermine the relationship of confidence between people and leadership.
At that the special circumstances of time and the personality of the person making the utterance must be considered.
In a treatise of the Reichs-prosecutor's office at the ReichsCourt it is pointed out that in numerous cases the Reichs-Court has repealed judgments of Special Courts because the act was evaluated on the basis of the "Heimtueckegesetz" (Las on malicious attacks against State or Party), while actually it was a case of undermining the defense spirit (Wehrkraftzersetzung). There it is stressed that to assume the undermining of the defense spirit the intention of the perpetrator to paralyze the defense spirit is not necessary. (Rothaug Exh. 137).
Final Plea Rothaug (Page 137 of original) Rothaug-Exh.
138, Decisions of the Reich Supreme Military Court, so explains the conception of "in public", in the sense of Paragraph 5, Section 1, Part 1 of the Extraordinary War Penal Law, that "in 10477 r public" is already established if not fullest guaranty is given when a remark is made that same might not be passed on to other persons.
All these suppositions were given in the case of Grasser.
No preponderance of reasons for leniency were available, from which the case might have been characterized as a less serious one. As a rule however this type of case definitely demanded the death penalty.
This conviction obviously existed also at the Ministry as not only a telephone message, but the documents with the sentence were on hand, because the sentence would otherwise not have been carried out.
The situation report of the General Public Prosecutor wherein the Grasser case is mentioned (Prosecution Exh. 478) contains not a word of criticism regarding the sentence. As this situation report was made with the collaboration of the witness Engert, he probably did not make any objections to the sentence either. This fact, together with the further fact that no legal aid was interposed against the sentence from any side, should be enough evidence to the fact that the sentence in its measure of punishment did not exceed the usual limits.
XI.
Anything to be said in regards to the functional position of the Reich Public Prosecutors Office has been said by the Defense Attorney for Lautz. Barnickel's Defense Attorney will discuss the matter of the Reich Public Prosecutors position as Chief of the Department.
(Page 138 of original)
The Peoples Court is a matter to be handled by the entire Defense Counsel and the Defense Attorney's of Petersen and Nebelung. I can refer to what has been said in regards to this and what will yet be said regarding it.
What generally has to be explained in regards to the service of the Public Prosecution has been explained by me already. Here I would only like to point out, Rothaug had no authority to represent and was 10477 s no ones superior.
Arraignments, staying of proceedings and reports to the superiors were signed by the Chief or his permanent representative, Barisius.
Turning over of cases to the General Prosecutors was ordered by Rothaug according to existing regulations and directives, and signed "By order of" ("Im Auftrage").
The Chief decided the question whether the death sentence was demanded in a case.
Rothaug was in charge of a section specializing in treason from May 1943 to 31 December 1943, of which it could not be ascertained with certainty whether this took in areas which were only annexed by the Reich after 1937. But on no account did it extend to Poland, Czecho-Slovakia and the Alsace.
Beginning 1 January 1944 he handled seditious undermining of the fighting spirit in the Reich exclusive of Poland, Czecho-Slovakia and the Alsace. Beginning March 1944 up to February 1945 this Section was shared by him and Reich Prosecutor Franzki according to odd and even numbers.
But it is of importance that all cases, demanding particularly rapid action because of their importance, were handled in the department of Reich Prosecutor Parisius.
Final Plea Rothaug (Page 138 of original cont'd.)Cases where other legal considerations were prevalent, the aiding and abetting of the enemy or high treason, were referred to the competent departments.
(Page 139 of original)
Only those cases remained with the Reich Public Prosecutor's Office where a central decision was of interest. These were at the most 2-3 cases per day. But by no means did all of these lead to an indictment, they were partly transferred to a lower level later on. From the beginning of the late Fall 1944 less cases came in due 10477 t to the bombing raids, stopping almost completely beginning February 1945.
The legistic-material side of seditious undermining of the fighting spirit has been presented by me in connection with the Grasser case. Here also - Rothaug - noticed no illegalities in judicial matters. - The so greatly stressed alleged tendency for extermination did not exist. In all cases, without exception, the chief question was always: Did the accused really perpetrate the act? The prosecution only began if this question could be answered in the affirmative according to best knowledge and belief.
That is how the personally carried out investigations are explained in previously mentioned case of von Oppenheim.
That is why Rothaug made immediate preparations for personal investigations in the von Praun case, after he had realized that the matter had been inflated far in excess of its importance by the local authorities.
In the case of Treuter, Bayreuth, (Lautz-Prot. Engl. 5987 German 5829 Rothaug Prot. Engl. 6956, German 6712 Martin-Exh. 49), Rothaug uncovered due to his own investigations the collaboration of a group of informers.
Even though his petition for a stay of procedure was not accepted by the Ministry, he never-theless personally petitioned for a finding of not guilty at the trial, as any other verdict was simply not to be considered.
He acted in the same manner in the case of a teacher and a Catholic Priest from the vicinity of Hassfurt (Rothaug Exh. 211) as reported by the witness Koch. Here he was able to have the proceedings stopped by the defendant Lautz, despite the fact that the accused Vogt had already been transferred to Meseritz for disposition by the Peoples Court.
Final Plea Rothaug (Page 140 of original) 10477 u Although these examples do not disprove the fact that in one or the other case it was proceeded in a different manner, they do disprove the alleged tendency, and prove that at that time one did not even think of things as they are charged here.
The continuously increasing occurrence of cases of seditious undermining of the defense spirit was caused by a directive given by the Ministry to the Senior Public Prosecutors, to submit all political utterances first of all to the Chief Public Prosecutor of the Reich for examination of whether they constituted a case of seditious undermining of the defense spirit.
After the defeat at Stalingrad a more critical judgment had been adopted, but not because of a different interpretation of the law, but because of a different evaluation of the subjective side of the elements of the offense. After that date everybody knew that in view of the critical war situation defeatist utterances could have far much more disastrous consequences than at the time of the lightening wars (Blitzkriege). Rothaug is not charged with individual occurrences connected with his activity with the Reich Public Prosecutor's Office. The Will and Zinsser case, by which he is only incidentally touched, were cleared up by him. I may be allowed to refer to this.
Rothaug is a man whose private life is without fault or reproach, also with regard to party matters. Everything he is charged with pertains to the sphere of his official duty. Here, according to his character, his moral impulse to absolute fulfillment of his duty at all times and in all situations turned out to be fatal for him.
As a judge he ascertained the facts of the cases conscientiously and according to his convictions, and guided by the decisions of the Supreme Court and to the best of his knowledge and belief he ascertained the intent of the laws. Nowhere did he apply a method contrary to the law, neither in general nor in an individual case.
10477 v (Page 141 of original) It is not his fault that he was the product of his time.
Everyone is that after his own fashion, the one more, the other less.
The punishment demanded by the Prosecution could only be imposed upon him for not having consciously sabotaged, in violation of his holy oath of office taken before God, the legislation of his country which, according to the principles laid down in the constitution, he was not allowed to examine in regards to those points of view which constitute the essential points of this trial.
10477 w Your Honors:
My task of defending the Defendant Cuhorst has "become much more difficult by the lack of substantiation of the charges made against him in the indictment of 4 January 1947. To me as a German Defense Counsel this lack is the more marked as I am used to defend on the "basis of indictments in which the corpus deliciti has "been formulated in detail, in which the laws have "been cited exactly and the evidence has "been named for every individual issue. A great number of German indictments of this kind have been presented as evidence by both parties.
Above all it is a principle in German law, maintained in all political periods that the indictment cannot be extended without further ado after the opening of the trial and cannot even be changed by way of subsequent interpretation after all the evidence has been taken.
The presentation of evidence has been rendered difficult for the Defense for the reason already that the Prosecution in submitting evidence failed to disclose which counts they concerned and on what legal reasoning they were based. I, therefore, wish to protest against the action of the Prosecution in disclosing only in their final plea which facts of the case they consider relevant in law and in drawing therefrom legal conclusions as to the extent and direction of the indictment for which the Defense cannot be prepared according to the wording of the indictment. I am compelled to limit my defense to the wording of the indictment of 4 January 1947 which has staked out not only the basis but also the boundaries of the indictment.
By reason of the legally well founded decision of the Tribunal I have been relieved of the necessity of discussing Count I.
In Count II my client has been charged with the committing of war crimes under paragraph 9 generally and under paragraph 11 especially.
It has been stated in paragraph 9 that my client has used his judicial position at an irregular Court as it is called there to create a reign of terror and to suppress by bloodshet political opposition to Case III national-socialism and has thereby subjected civilians of occupied countries to criminal abuse of penal process.
In paragraph 9 special charges have been alleged which have been enumerated exhaustively, among which the unwarranted imposition of the death penalty and so-called discriminatory trial processess appear to be relevant.
In paragraph 11 my client has been charged with special responsibilities of having sentenced to death Jews and non-German nationals for high treason committed by trifling offenses and statements pursuant a murderous system of extermination, whereby the executions were duly carried out.
In Count III my client has been charged with crimes against humanity. Paragraph 23 refers to paragraph 9 expressly and extends the charge of the abuse of the jurisdiction of Special Courts for the purpose of sanguinary suppression of political opposition against the German Reich.
In count 23 the abuse of high treason jurisdiction referring to foreigners and Jews, already mentioned as war crimes in count 11, are extended to natives also, and are being considered from the point of view of humanity.
Based upon the above mentioned counts of the indictment, which in my opinion are of exclusive concern to my client, I would first of all exclude those facts for which the prosecution could not submit any evidence against my client. They are:
In accordance with Par. 9, for murders, brutalities, cruelties, tortures, bestialities, looting of privatly owned property and other inhuman acts, not the slightest evidence has been submitted. As stated in my opening statement on page 11, such acts can only be committed by military personnel, government employees, possibly by private individuals also but not by judges in carrying out their judicial functions.
In accordance with Par. 11: the charge of extermination of Jews docs not apply, since no Jew has ever been sentenced by my client at the Special Court or otherwise and accordingly has not been condemned to death.
My client is charged with intention of extermination only in the case of the Gypsy Winter-Eckstein, and the prosecution itself does not maintain in this case that nationals of foreign or occupied countries were concerned.
The same applies to Par. 21 and 23.
I must now consider the conception of charges to German citizens referring to war crimes and crimes against humanity, to differentiate between them, and return to the source from which they are taken, the Control Council Law No. 10.
I A. I find listed in Article 2 b war crimes as violations of the laws and rules of warfare.
B. In Article 11 b crimes against humanity are summed up as follows: acts of violence and crimes with the results as stated in the indictment, including persecution for political, racial or religious reasons.
II. A. My client can therefore never be charged with war crimes against German citizens, he can only be charged with war crimes against foreigners, and only from the point of view of sentencing of foreigners from the occupied territories by German Courts, particularly certain Special Courts, since that would be contrary to the provisions of International Law.
In order to fulfill my duties as defense counsel, without identifying myself with the indictment, I regard the charge of the handling of matters of high treason, as stated in count 11 of the indictment, in the broadest sense, i.e. including "Wehrkraftzersetzung" (undermining Germany's defensive strength). I wish to state first of all that my client at no time and in no court participated in the sentencing of a foreigner in matters of high treason or "Wehrkraftzersetzung", in which a death sentence was pronounced; not even a sentence calling for imprisonment has been shown. I shall only deal with high treason cases against German nationals who had necessarily to be tried by the Penal Senate, because the Special Courts were not competent for this.
According to the lines of thoughts followed in the indictment, according to which any illegal judicial activity came under the competence of the People's Court and the Special Court, both of them being based exclusively on National Socialist ideas and methods of suppresion and extermination, I shall deal with this only to the extent, as it complies with the directives mentioned on page of the English transcript in the case Cuhorst under the Presiding Judge Marshal, and where the following is stated:
That is to say we only go into the matter as far as to here get a. complete picture of Curhorst's personality as a Judge.
I am adding this now. This statement is not contained in the text which I have passed around.
According to the indictment one could have got the impression that exclusively political cases were charged against Cuhorst and that cases of general criminality remained as occasional and therefore unimportant outside consideration. In the point of focus of these expressed accusations, is the instituting of a rule of tyranny for the suppression of political opponents, the classification of minor offenses and statements of high treason and the conviction of citizens of occupied countries under this point of view.
Instead of it only such charges were presented by the Prosecution which according to the Penal Laws of all civilized countries of Europe and America are punished with severe sentences, very much to the disappointment of the interested population which due to the propagandists ability of the investigating clerk, was waiting for a sensation. Without repeating the names stated on the list of verdicts which has been submitted to the Court, I only mention the following characteristic cases:
I am going to mention the source but I do not wish to take the time of the Tribunal by stating all of them. I have them ready to be entered into the record later:
(B)
1) Majcher and Strawowski, both charged with robbery with murder, A, 8009
2) Milk and Margitai, two professional cat-burglars and burglars with an international radius of activity, Doc. Bq II S46 p 8011
3) Pollek, a female murder, p. 8018
4) Klausner, a young, incorrigible murder with many previous convictions, p. 8019
5) Oehlbach, an impostor and procurer with many previous convictions, p. 8021
6) Schramm, a previously convicted impostor, p. 8023
7) Staudenmeier, a party official who embezzled great sums of money belonging to the Red Cross, p. 8029
8) Wirbel, a professional burglar and thief with many previous convictions. Doc. 6K II (par. 33) p. 8036
9) The brothers Wolff and all criminals with regard to the War Economy, whom Cuhorst gave the suitable name of "Aryanisation-Hyenas" (Document book II A B par. 31, 21, 25) p. 8040 10) Michael Schmidt, a man who robbed army mail, p 8052 11.
Soell, a black marketer butcher on a large scale, page 31/87, Doc. Book II, P. 8055;
12. Stiegler, a black-marketeer with a turnover running into millions, p. 8056 13.
Eckstein and Winter, gangsters haunting the farms of an entire district; one of the two sentences to death was a native Gipsy., page 59, Doc. 11, p. 8060/61 I should like to say about these cases of Milk and Margitai were burglars who had international contracts, and with previous convictions.
Klausner was a Nazi party official who stole goods belonging to the Red Cross and Wirbel was a professional burglar and had previous convictions which involved crimes against the war economy and whom Cuhorst gave a suitable name of "Organization Hyena."
Soell was a black market butcher on a large scale and Stiegler, a black-marketer with a turnover running into millions.
Eckstein and Winter, gangsters haunting the farms of an entire district. One of the two sentenced to death was a gipsy.
It was not for nothing that somebody, formerly convicted for political reasons, who happened to have been present in the audience, has said in this house: "The convicted persons mentioned in the verdicts presented by the Prosecutor had in fact been real criminals". The man in the audience in this connection referred to the verdicts cited against my client on 27 March, i.e. the verdicts against Wirbel, kleinknecht, Wolff, Staudenmeier.
Least of all I am able to understand why the Wolff case should be introduced in this connection volume 2, #36, pp. 25-31. Here the Prosecution overlooked the fact that these were convicted persons whose crime had been the greedy acquisition of former Jewish firms, that the sentences had been carried out as late as 1946, and that the costs had been assessed in the trial which took also place in the summer of 1946, at which trial my client had been the Presiding Judge, not to forget the aftermath for my client on the part of the Party. I am unable to follow the line of the Prosecution. The case Staudenmaier is similar. This convict was a functionary of the Nazi party. Having stolen a verified amount of collected funds, one surely cannot reproach my client for not having pleaded for a milder sentence for the defendent.
If the photographs submitted by the prosecution against my client had not been rejected as evidence, then the prosecution also would have presented the pictures of the place of crime shown at the murder trial against SS Sturmfuehrer Reissing, which took place from 8 to 11 November 1938, at the Special Court, Stuttgart. On account of these pictures which proved that Reissing did not commit manslaughter but the murder of a police official, he was sentenced to death and executed.
Reissing was the Gauleiter driver and was believed to be his special favorite. The population did not expect the trial to proceed.
I shall now focus my attention on the so-called foreigner's cases, which are the base of specially grave accusations against my client. I here deal with the cases Pitra, Milk, Englert, Leszinski, Kroupa and Togni. About the Pitra case much had been said. In this case, the witness Eberhard Schwarz (Tr. page 3273,) was not quite clear about the nature of the sentence. We have taken the pains to elucidate the case as far as this is possible to-day. The result is firmly established. Pitra was not sentenced to death at the session of the Stuttgart Special Court of 12 August 1942. The witness Foetsch has brought light into the case before this Tribunal supported by her notes of lists and her memory. The witness Gramm, Tr. page 2273, has testified that exhibit 197, to so-called FuehrerInformation of July 1942, has no connection with my client. A comparison of the dates makes it apparent that this document, even assuming its authenticity, can have no connection with the Pitra case; even the Minister of Justice cannot know yet in July 1942 what sentence the Stuttgart Special Court will pronounce in August 1942. I tried, during the examination of the witnesses, to point out that no nullity plea or extraordinary protest in favor of the defendant was ever lodged against a sentence of the Stuttgart Special Court. This desposes of Eberhard Schwarz's statement that he was twice tried before the Stuttgart Special Court. As regards the FuehrerInformation, I would like to point out that it dates from 3 July 1943 and that the indictment was already made between the 20th and the 25th July; the trial proper took place on 12 August 1942.. This is shown from the death sentence list of Schwarz. In View of the affair that Pitra is supposed to have had with a much older German woman, the facts can only have been that he committed the rape against another German woman, in which case it may certainly have carried weight for an aggravated sentence that there was even less motive for this sexual crime, because he had already a permanent liaison with a German woman.
In the case Wilk and Margitai, Cuhorst case 5, Tr. page 8011, the facts are not exactly as represented by the prosecution in their plea, according to which the two criminals were sentenced to death by the Special Court Stuttgart with Cuhorst as presiding judge because they had as uninvited guests entered the villa of the Gauleiter and had taken some food away with them. The Prosecution refers here to the witness Eberhard Schwarz. From the statements of that witness on page 2267 of the Transcript, I suggest that they had within a few weeks committed 20 burglaries, a number of them as cat-burglars. Under cross-examination by me the witness admitted, Tr. 2287, that he had in his own words burgled the villa of the Gauleiter and had stolen household goods, which in my opinion means no doubt real carpets, and in his own words, a camera. The case is besides dealt with in detail in the affidavit Frey, Doc. Book II, page 46, Doc. No. 40, Exh. 50. It is also pointed out there that they often committed their burglaries in the villa district during blackout hours, and that this greatly alarmed the population. According to Frey, the number of burglaries amounted even to 24. Previously, they had also entered the villa of the Turkish Ambassador in Baden-Baden as cat-burglars and had removed valuable jewelry from the bed-side table in the bedroom while the couple were asleep. Even professional burglars are not in the habit of working without a loaded revolver.