The Defendant Koudelka has, as against the Prosecution statement in the Final Plea, stolen no one trunk but one hundred trunks, for sure. The case has been dealt with by my client as Cuhorst Case 2, page 8008. He had been appointed to the baggage department of the railway station at Ulm. His thefts, which constituted a serious breach of confidence, extended over three months and caused damage amounting to 30,000 Reichmarks. Nor did he hesitate to steal Red Cross luggage of soldiers killed in action, and the luggage of Dutch officers who were prisoners of war in Germany. That is the character of the man whom the Prosecution he says was sentenced to death for stealing one trunk.
Besides, the case has been taken up in one of the affidavits of the Defense.
The following page I want to be made part of the Transcript. I am talking of the passage dealing with the Togni case, pages 21, 22, and 23, but I should like to add here something as a source.
From the Prosecution's plea in the case of Louisa Toghi, Cuhorst case 43, by him dealt with in the Transcript, page and of the witness Stuber, Transcript, page 8413, it is of interest to establish that the Prosecution accepts the statement of the witness Dr. Schoeck that upon the intervention of the Italian Embassy she was pardoned to 8 years imprisonment. The statement of the witness Rimelin is thereby refuted. He himself as Public Prosecutor had applied for the death penalty but not because of his difficulties in denazification, page 2059, tries to take the credit for her pardon mainly for himself. In his statement that she had lived in Germany only a short time - the Prosecution in tactical consideration says later that she had lived in Germany a long time -the essential thing has not been mentioned. At that time in Germany warnings against pillage in case of airraids were posted on many public buildings in all communities not only in the German language but in view of the many foreign workers, also regularly in Italian, Polish and. French with special emphasis upon the fact that pillage would be punished with the death penalty.
Hence it makes absolutely no difference whether Toghi understood German or not.
With regard to the legal consideration given by Dr. Schoeck, we refer to the following. The attorneys' knowledge of the decisions of the higher judges in consideration of the facts of the individual penal cases is very limited, as every experienced criminal judge in Germany knows. Especially the legal interests of very busy lawers, having to deal with cases ranging from divorces, claims for maintenance, tax laws, industrial laws up to criminal law, are too scattered, to enable them to give a somewhat clear prognosis of the outcome of the case before the start of the main trial. Hence there is a great tendency to held tenaciously to one certain decision of the Supreme Court regardless of whether another decision of the Supreme Court more applicable to the individual case has been passed since. Without hurting the feelings of our colleague Dr. Schoeck, nevertheless the arguments of Dr. Stuber who stated that he has been Criminal Judge for years and therefore may be regarded as specialist, should on this point be far more convincing to the High Court. He stated that the acting court with Cuhorst presiding weighed every possibility to save Toghi from the death sentence.
He further testified that the court immediately took into consideration to recommend Toghi for pardon. Not to pronounce the death sentence would, however, have been against the prevalent teaching and jurisdiction. Regarding this I refer to Doc. Book II, Oeschey, and there to: Doc. No. 189, p. 65, Doc. No. 90, p. 70, Doc. No. 113, p. 72, Doc. no. 145, p. 75.
The three authors quoted here besides the Supreme Court, namely Dr. Kleen, then president of the 1st Criminal Senate of the Supreme Court (Kammergericht), Professor Dr. Schoenke, Reichsgerichtsrat Dr. Schwartz, have for years been recognized as leading authorities on the criminal code, -- as every German lawyer can confirm. Dr. Schwarz points out that the tenet that in order to punish a war criminal, besides having established the legal facts of the case it is necessary that he also be the type of the perpetrator in question, - is to be very definitely rejected.
It cannot be the case that if there is no such criminal type indicated, the criminal, in spite of the presentation of the legal facts of the case, would have to be acquitted. The adherents of the criminal type admit that the gravity of even a single act of an otherwise righteous perpetrator may let him appear as a criminal type in the meaning of the law. This obtains particularly in a Reich Supreme Court decision in criminal matters, volume 74, page 240, which takes the viewpoint that the criminal type is supplanted by the crime type. If the crime appeared to be injurious to the people, the sentencing will take place without much ado according to the decree against people's parasites. Professor Dr. Schoehke states that, as a whole, the jurisprudence has shown still before the end of the war a change from the criminal type to the type of crime. But these statements are of no decisive importance. As testified to be my client on the witness stand, transcript page 8085, looting is a crime absolutely punishable by death, and moreover, the commission of looting by a Frenchman in the Stuttgart main railway station, as stated by him at some other occasion, proves, that only the finding of some special judicial facts during the investigation exclude the necessity of pronouncing a death sentence.
Since the case Togni concerned the citizen of allied Italy, on whose behalf the embassy interceded by the way, it becomes evident that the court could not act differently. Concerning cases of looting, not any more than in others, no difference could be made when judging the crimes of Germans, Frenchmen, Poles or Italians.
Summarizing, I want to emphasize once more that Louisa Togni uncontestably was not executed. Page 23, line 15 from the top in the German, transcript page 80-85, would you here please add the loose pages which I have handed in with the heading "Michael Schmitt"?
THE PRESIDENT: The same rule will apply as to your written argument as has been applied in the other cases. The entire written argument will be incorporated in the record whether you read it or not.
DR. BRIEGER: Well, Your Honors, in that case I shall leave out quite a bit more. I am reducing my original plea to about half. May I know whether you have the Michael Schmitt pages?
INTERPRETER: Yes? we have them.
DR. BRIEGER: In the case of SCHMITT Michael, case 23rd testimony of my client? record page 8052/52, the prosecution again overlooks that this concerns not merely the theft of cigarets by continuous pilferage of service-parcels mail but that the above simultaneously and continuously stole the letters of the families sent to their relatives in the front line. Every German soldier stationed in the front line can testify to the extent to which the morale of fighting troops will suffer and how the worries grew, when there was no news from Home. In the case of SCHMITT such mail originated in Stuttgart which was subjected to continuous air-raid attacks, thereby increasing the worries in this particular instance. The stress laid by the witness DIESEM on the little value of the cigarets, does not materially affect the case. For it must be remembered that it concerned goods in short supply which were rationed on cards in such small quantities that the stolen quantity represented the ration of a woman for several months and could be obtained in minute quantities often after many hours of lining up outside the tobacconists. As, already in normal times, the theft of foods (Mundraub) by pilferage from postal packets is considered more seriously than ordinary food theft, how much more does this apply in times of war. German High Court Judgement and Science always agreed on this point. Therefore, the incorrect views of DIESEM's defense counsel must es½ecoa;;u jave ½rpvpled CUHORST. Finally, the statements of Dr. KUESTNER, record page 8203 and Dr. SCHOEGK, record Page 8245 show that DIESEM's statement that he had been excluded for a considerable time from appearance at the Special Court on CUHORST's instructions, wore untrue.
Furthermore I should like to point out, as a precautionary measure, that when cases of parcel robbery from Armed Forces' mail were punished by the death sentence in accordance with the Decree against Public Enemies, this was not a practice which CUHORST had introduced; but similar offenses were punished in exactly the same way by other courts in Germany.
These verdicts were posted up continually by the postal and railway authorities in the rooms used by their employees, on large notices visible from a long way off, so that everyone who nevertheless stole a parcel from Armed Forces' mail knew beforehand exactly what punishment he could expect.
Although the indictment does not specifically chargemy client with persecutions for religious reasons, various evidentiary documents of the prosecution clearly aim in this direction.
As a judge, my client's duty wasonly the pronouncing of sentences. Just like any other judge he could not avoid doing it, after the prosecuting authority submitted the facts of the case for sentencing. He had nothing to do with the instituting of criminal prosecution or with the execution of sentence, a fact which must be reemphasized and which by now must be assumed as being recognized by the Tribunal as applying to all the defendents. Sentences were passed by applying the laws, that is to say, in the individual cases to be discussed here, of laws which were not enacted for reasons of religious persecution. For this reason alone, these sentences cannot be charged as crimes. Least of all is it asserted that the accompanying circumstances were by any chance criminal. The defendants were not mistreated, they were not handed over to the Gestapo, nor was it intended to persecute any religious community.
To begin with, from the cases to be discussed those may be eliminated where the religious membership of the person concerned was accidental, and hardly of any interest to either the prosecution or the court.
Included are:
1. The case Untermarchtal, case 12, in regard to which my client has made a statement on page 8028 of the transcript, as well as the witness Azesdorfer who made a far more detailed statement on page 8449 and following.
Untermarchtal is an economic enterprise of unusual size, owned by an organization of pious sisters who, as a temporal society are estimated to be worth about 10 million RM (pre-war value).
If in spite of the unequivocal result of the second part of the evidence taken the Prosecution nevertheless states on page 170 of its plea: "included with the files are also files of the trial against the correct Untermarchtal. "lien evaluating all evidential material this constitutes above all well founded doubt a persecution for religious reasons." The foregoing compels me to quote myself from some of the find ings of the verdict. In violation of many different war economy laws, the following articles were illegally marketed or consumed, according to page 22 of this sentence: 90,000 eggs;page 24: 3 to 600 kilograms of meat; page 25: 140,000 litres of milk, 7,100 kilograms of flour; page 30: additional 8,300 kilograms of flour; page 31: 3,300 kilograms of sugar. I restricted myself to quote only a few figures without making any claim to completeness. They speak an eloquent language, if I were to add that almost all Germans received during the war no milk at all, and only occasionally every, few months perhaps, a few eggs, and that the meat, flour and sugar rations were always so small that nobody could eat his fill of them.
In rebuttal of the Prosecution's assertion in the same place that the mayor Untermarchtal was not a Party member, I now quote from the indictment, page 20, that this mayor, named Spitzelberger, was a member of the NSDAP since 1931, with the Party membership number 716977! He was sentenced by the Special Court, with Cuhorst as Presiding Judge, to serve three years in the penitentiary, while the maximum penalty passed on a pious sister, the mother superior, was two years in prison, -- and not penitentiary, as should be well understood. Other sisters received smaller prison terms or even fines, and four sisters were even acquitted.
That is how the religious persecution of which Prosecution speaks, looked.
And now I interpolate. The witness Dr. Atzesdorfer, on page 8453, expressly testified that this was not a care of religious persecutors.
In view of the fact that I had been forced to correct the statements of the prosecution to such an extent it seems to me to be a matter of courtesy to assist them in their reply by offering them herewith my original documents of the indictment and the verdict "Untermarchtal".
The testimony of the witness Klett that on orders of Cuhorst the trial had taken place in the room for religious exercises is refuted by the affidavit of the sister superior, Burger, Volume III, Document 98, Exh. No. 98.
The witness Azesdorfer testified that my client had nothing to do with instituting the criminal proceedings, that he had been informed of the indictment only shortly before it had been filed with the court. He and his assistant judges labored for 10 days in the trial to examine the individual offenses against the war economy decrees, Consequently, the verdict was just as well founded in its argument as the indictment, which contained 142 pages.
The same witness has also testified, Page 8450 of the Transcript, that the Court presided over by Cuhorst declined to accede to the request to seize the property of the institution because the Court did not see a legal basis for it. The judges, consequently, were surprised by the subsequent seizure. However, it was never carried out but a trustee was appointed to administer the property during the remainder of the war, as may be seen from the affidavit exhibit number to be furnished later.
.............Doc. Volume......... .Exh. No............Doc. No.
Interpolation, see attached sheet.
I want to interpolate here.
Concerning the Untermarchtal Case, the Witness Otto Maier, Document Volume II, page 3 of Document 51, Exhibit 38, gave valuable testimony. He said that Cuhorst had not acceded to the wishes expressed by Berlin for severe penalties.
He had not acceeded either to the wish of the Party that a fraud process should be staged.......
The next few pages I want to incorporate into the record, my statements on the Herzer case and the case of Waldemar Schiff and Backbler.
THE PRESIDENT: Your need not designate what you wish incorporated in the record. You need not state it because it will all be incorporated in the record, whether you read it or not. Just read what you feel necessary to read.
DR. BRIEGER: Very well, Your Honor. The Bieger case that should come at page 29-A needs interpolating there; but I don't intend reading it now, it will be page 29b. That deals with work in the Ukraine. (follow pages not read by counsel) The extraordinary seriousness of the many sexual crimes.
In my opinion it is characteristic for the objectivity of the court that the verdict states that the acts of the priests had been condemned by the Church. If it had been intention to discredit the Church this passage certainly never would have been inserted in the verdict. It is no coincidence that the Reich Supreme Court suspended the verdict for being too mild and that another Special Court subsequently pass a more severe sentence.
The case Fussen, described in the testimony of the witness Berthold Schwarz; Exh. 242, concerned very serious cases of procuring - similar to the case of Herzer. The Reich Supreme Court also suspended this verdict of the Special Court Stuttgart for being too mild, The case was transferred to another Special Court and a much more severe sentence was pronounced. If it had been the intention of my client to persecute priests on religious grounds the verdicts would reveal such a tendency.
There are only three verdicts against priests left where political acts had to be subjected to a judicial investigation.
In the case of the verdict against Julius von Jan which the Prosecution submitted to my client during his cross-examination; the prose cution did not mention that Jan had been sentenced to only one year and four months in jail.
The person involved in these cases violently criticized from the pulpit political measures of the state during the war. The provisions of the so-called "Kanzelparagraph" (pulpit paragraph) 130a of the German penal code dating from Bismarck's time were explicitly quoted in the verdict and the malicious attacks law only incidentally.
The court had no possible chance to evade the issue, the less so as the person involved emphasized before the court that he was only responsible to God. Any extenuating circumstances applicable to the case had been taken into consideration, for instance that the defendant had been a soldier, and four months of protective custody were deducted from the sentence, although there was no legal obligation to do so.
In this case it is not that a priest had been convicted on account of his religious conviction, but for attacking the then accepted reason of state from the pulpit, It need not be said in this connection that the court did neither torture nor manhandle him as could have been expected from the charge. If he had been acquitted, it would have been a perversion of justice on the part of the judges and - the Special Court always had to consider this possibility - the Gestapo or the Security Police would have seized him and most likely sent him to a concentration camp like many other priests, had not the Court served him from this by its verdict which followed a middle course.
In the case of the two verdicts 1) Wassmer and Schack Exh. No....... and 2) Blattman et al, where the facts on Yfhich both verdicts had been based closely resemble each other the accusation that this constituted religions persecution would perhaps be legally justified if the persons involved had limited themselves to spreading the Goespel and if Cuhorst had prevented them to do so by a heavy sentence. Instead of doing so they propagated quotations of saints long since recognized as unholy. They indeed acted from political motives by resurrecting views of Wilhelm II and by playing off Hitler of 1920 against Hitler of 1940.
They used a mimeograph machine and proceeded to distribute on a vast scale quotations from Hitler's boring book.
Their criticism of Hitler lacks all interest to-day, because it is confined to narrow limits though I am aware of the fact that, even this, was dangerous at that time. It cannot be of any interest to-day to protect people who considered Hitler, the practical politician of 1940, degenerated as compared with the Hitler of 1923, the author of "Mein Kampf." While few Germans knew at that time that Hitler was always the same, all Germans know to-day, what kind of man he was and that there was no hope that religion during his dictatorship would ever be sincerely advanced, whatever his policy was.
Thus the case, being out of date, can be eliminated from any discussion particularly, since malicious attacks and violations of radio regulations doubtlessly had been committed according to the views, prevailing at that time.
For the purpose of rectification the person who furnished the Affidavit was prompted to make a special Affidavit.
BIEGER INCIDENT Apart from my client's judicial activity, a series of affidavits is supposed to prove his inclination to commit crimes against humanity and other crimes.
The BIEGER Affidavit, Exhibit 511, causes me to make the following remarks:
The plans submitted by my client himself, and his statements, Transcript Page__, as well as those of Witness HEGELE, Page __, prove the followings:
BIEGER was never a friend of my client, and he was never held in custody or deprived of his freedom, My client's magnanimity had to cease, when, because of his own personal responsibility, he was threatened with disadvantages; Fuehrer Information Exhibit No. ___, concerning the case of SOLFFYS. Herr von SCHERPENBERG shows what there disadvantages were. Being responsible under criminal law for a public hotel, my client could not act differently, since, in spite of oral and written warnings, in which connection he, CUHORST referred, in writing, to his own responsibility, BIEGER persisted in involving my client in great danger. Even today, such an act would not be regarded as an act deriving from a base human attitude, and therefore, as a crime against humanity. The following shews that my client had every reason to be cautious, in his own behalf:
As early as 1943, Party court proceedings had been carried out against him, and at that time he was threatened with loss of office. Witness KUESTNER, Page_____. As early as 1942, the Party decided that CUH0RST should not be transferred to a District Court in the Gau; it was quite evident that the Party had rejected him. Transcript, page 8203. Witness KUESTNER, on Page _____, describes CUHORST's relationship to the Gauleiter, as far back as 1937.
In my opinion, the matters submitted for this case, are outside the province of the Prosecution.
Action in the Ukraine.
During the cross-examination, the Prosecution submitted Doc. No. 983, Exh. No.___. The Prosecution then objected to my client having taken part as assessor in a session of the Superior Court of Justice at Rowno. According to the document submitted, the following is certain:
My client was to have taken over the position as presiding judge (Vorsitzender) of the Superior Court of Justice at Rowno. He left Stuttgart on 21 March 1943 and returned there on Tuesday, 15 April 1943. During the time of his stay at Rowno he was allocated to the Superior Court of Justice in virtue of a directive of the competent Reich Commissioner whose representative (Organ) was the then presiding judge of the Superior Court of Justice. It is quite clear from page 7 of the original that his permanent appointment to the presidency of the court and his return to Rowno was to have taken effect after 9 April 1944. As it is impossible for a judge to work in any other capacity than that of a judge, my client had first to take part in the session of the Superior Court of Justice as assessor without reporting. Since there was only one trial during my clientes membership of the Superior Court of Justice at Rowno, he of course took part in it, without the presiding judge FUNK nor the assessor WISSKOTT raising any objection. The documents themselves do not need any further statement on my part.
Then there will be page 29C and I shall read out what is meant to go there:
Fundamental remarks concerning the witnesses for the Prosecution.
Affidavit RENZ, Exh. No. 241, is an obvious attempt to incriminate my client outside the Indictment. He prolonged reflection is needed to find out, why the Prosecution has dispensed with reading even extracts from it. I for my part have no reason o deal with this document out of pur hatred, for it can easily be refuted by our own evidence. I refer to Affidavit GEYER, Exh. C. No, 52, PACIUS, Exh. C. No. 57, SCHAAL, Exh. C. No. 63 and HAFENBRAEDL Exh. C. No. 53. They all demonstrate the worthlessness of Exh. No. 241.
A perusal of the so-called incriminating affidavits, i,e. Exh. 208, 218, 242 and others shows them all to be in the same tone; they arc also written by the same official. The corresponding Affidavits against Defendants ROTHAUG and OESCHEY show the same coloring. Even without a signature we can in all these documents recognize, who wrote them.
How this is to be explained, becomes evident from our Affidavits BAEUCHLEN Exh. Cuhorst No. 42, 43, KLEINXNECHT Exh. Cuhorst No, 55, the statements of the witness Berthold SCHWARZ, Transcript Page ... (I shall submit that page later on) and those of my client Transcript Page 8002.
According to affidavit BAEUCHLER Exh. C. No. 42, Doc. 30, Doc. vol. II we recognize the following facts: This witness declared to the interrogating official: "At the main trials of the Special Court, over which he presided, he was generally well prepared. "This refers to CUHORST, This interrogating official changed this in the affidavits, where he acted as certifying official, into: "At the main trials, over which he presided, ho was generally hardly prepared."
That calls the affiant to correct the affidavit, the manner of the interrogation by that interrogator for the rest has been fully described in Document Book 2, Document No. 61, page 108, where it says "The attitude of the interrogator, Mr. Einstein made me draw the conclusion that the proceedings were directed against me all the more so as I was told seriously that Cuhorst no longer was alive.
The tactics of interrogation which wore adopted against me constituted a grave strain on my nerves."
I now want to interpolate a few more pages concerning the witness Eberhard Schwarz. The Prosecution in its final plea said that the credibility of the witness Eberhard Schwarz had never been shaken, I am pleased to catch this ball, and I would like to say the following. This claim is understandable because the evidence against my client in the Pitra Case was mainly based on his testimony and in the Leszinski case it was based entirely on his testimony, Therefore, the testimony by my client on the witness stand concerning the list of death sentences which have been made available to the prosecution, Exhibit 252, by Schwarz, NG No. 398, is of fundamental importance, I here contrast Cuhorst's testimony, transcript page 7987, with Eberhard Schwarz's testimony, transcript page 2261. Just one glance at the list reveals that the statements there concerning the consecutive numbers 1 to 3 cannot be correct for otherwise the people concerned would have been executed before they had ever been convicted. Under No. 14 you find Pitra already executed, according to the list, whereas all testimony agrees at least on one point, that is, that Pitra was never executed at all. To correct Eberhard Schwarz' testimony concerning Cases 4, 8, 9, 21, 29, 49, 50, 80, 82, 90, 94 and 102. That is to say, in twelve other cases, I refer to the testimony of my client. We must not overlook that Eberhard Schwarz spoke of the death list, that is to say in all its details, under oath. The death sentence which he gave under No.
49 passed on Jarchav Mach and under Number 97, death sentence on Karl Eperth of which letter he says expressly on page 2263 that it was Cuhorst who passed the death sentence all that shows clearly that he was incorrect, as we can see from the Wolfgang Engelhorn affidavit. Document No. 37, Exhibit No. 47, Document Book 2. Engelhorn must know, for he was the Defense counsel in both cases. He testifies that the first verdict was passed by the Peoples' Court and that the judges were different judges, and that the second verdict was passed by the Special Court, but that it was Kohn who was the Presiding Judge and that Cohurst played no part whatsoever.
I now refer to the witness Leduschowski.
The witness Leduschowski (page of the protocol) in spite of his questionable connections did not know that in the whole Stuttgart district a man accused by the Special Court had never been done away with in a underhand way. That the witness Leduschowski, in the period from the end of January 1943 until the middle of August 1943 could only have assisted in 3 cases with death penalty presided by my client at Stuttgart is evident from the Schwarz list, the exhibit number of which I just indicated. I have just given it. I just gave the exhibit number when I spoke of Eberhard Schwarz.
There were the cases Kappler and Schmidt on 28 January 1943 and the case Treiber on 26 February 1943.
In order to take this opportunity of checking the reliability of the witness Leduschowski's evidence I would point to the following date: According to Exh. No. - to be furnished by me later - my client was away on official business from 22 February 1943 until 13 March 1943. According to Dr. Kuestner's statement, Protocol page he was ill for 3 months in 1943, this being between the case WOlff, pleaded elsewhere on 9 June 1943, final date 5 October 1943, Exh. No. 12, i.e., as stated by my client, from 15 June 1943 until 19 September 1943. Leduschowski could therefore have been present only at the few proceedings over which my client presided in Stuttgart from the end of January until 22 February and from the middle of March until the beginning of June. That is a period of less than four months, during which my client himself was active in Stuttgart for less than two months. From the beginning of June until 18 August 1943 it was quite impossible for the witness to have heard my client plead in Stuttgart.
It is not surprising that this witness tried hard to give any details any particulars. That his memory for people is not bad, he proved when he was examined here, when I asked him about the names of various Ame rican officers, and without any difficulty he immediately gave me the names of almost half a dozen officers.
In conclusion I should like to say that this witness, just as the witness Eberhard Schwarz, was not even able to state his examination marks correct: An exhibit which I have introduced, and which shows the examination marks, reveals that in Wuerttenberg, as elsewhere in the Reich, the mark "completely satisfactory" for the examination has never been given.
The witnesses Everhard Schwarz and Leduschowski however, stated that their note had been completely satisfactory.
The witness Azesdorfer, has decided that Cuhorst never spoke of chimneys but always of fire places. That is, the word "chimney" -
THE PRESIDENT: Let's get into something that has some importance, for Goodness sake.
DR. BRIEGER: What I am going to read now is of basic importance. It does not refer to an individual case. I am no longer going to speak of individual cases.
The Prosecution in its plea concerning my client Cuhorst on page 166 states the following: --
THE PRESIDENT: Just a moment, the interpreter desires to know from what page you are reading. Will you state to her, briefly, the page from which you are reading.
DR. BRIEGER: Page 30, Your Honor.
THE PRESIDENT: Go ahead.
DR. BRIEGER: May I continue?
The defense considers the statistics presented by Cuhorst on the stand, page , as significant insofar as Cuhorst has been charged with excessively pronouncing death sentences, thus, in the opinion of the prosecution greatly exceeding the average. In this case, the proof that the number of death sentences pronounced by him was below the average that is compared with other Special Courts, becomes relevant.
Without reservation I agree with the Prosecution insofar as the defendant would be guilty, if, it would be established beyond a reasonable doubt that he in only one single case pronounced a death sentence for racial or political reasons. However, the principle already established by the IMT, again corroborated by the verdict in the Doctor's case, has to be adhered to in this case to wit, that an unbroken proof has to be established, in order to be sufficient for a verdict of guilt. Only that would be in line with the standard of all civilized nations. In this connection I would say that the prosecution has the burden of proof, and the defendant cannot be expected to exonerate himself with regard to any issue. It must be emphasized that proof has not been established if only nebulous and undistinct recollections of individual witnesses for the prosecution were offered who, according to their own statements, have only hazy recollections, particularly are only able to make scanty statements with regard to the corpus delicti and cannot say anything with regard to the legal evaluation of the verdict. Here where there is so much at stake for my client, I have the duty to make myself still clearer. These are recollections of prosecution witnesses, the credibility of whom has to be contested most decisively. That they cannot be believed is evident from "the whole tendency of their respective testimony, also from the fact that they have easily been proved wrong in details.
Their testimony based on no documents will lose its value altogether, if the defense is able to submit such documents in large numbers which speak a sober and convincing language. By that I mean the verdicts of my client, presented in document book I A and I B.
PRESIDING JUDGE: Just a moment. There is a difficulty again - Proceed.
DR. BRIEGER: By submitting them and by having my client discuss these cases in his defense on the witness stand, a summary of which can be found in a list cf verdicts, presented by me, we have only taken into account the well considered, guiding principle, established by the presiding Judge Karskall, still unforgettable in this court in the session of the court of 8 April, 1947, Engl. tr. 1702, by stating: "To go into detail on all of the testimony in each of these cases to show that sometimes he was right and sometimes he was wrong does not prove anything. Any man can go right part of the time and wrong part of the time.
PRESIDING JUDGE: Just a moment - Proceed.
DR. BRIEGER: To go into detail on all of the testimony in each of those cases to show that sometimes he was right -
PRESIDING JUDGE: You have read that. Proceed to something that has not been read.
DR. BRIEGER: Yes. I adopt this view to its full extent and have interpreted along these lines the decision of the court of permitting me, in the fact of the objection of the prosecution, to let Cuhorst present on the stand his cases in his defense. Accordingly, I wish to express the conviction, that these cases will be evaluated fully along these lines. Cuhorst cannot have passed the death sentence against Lescinski with which he has been charged, the proof of which has, however, not been established. Intentionally, I do not speak of Pitra any more, as this case has been settled completely in the meantime. A judge may be in a worse mood in one session than in another; that will not change his legal evaluation. I could now read out the defense cases, but I do not l8 0ct.
-M-MW-6-2-Stewart-Hahn intend to do so, nor do I want to read out the remainder of my plea, but I wish to conclude with that last statement, which I consider the most important in the whole of the Cuhorst case.
PRESIDENT: Give the page from which you are reading please.
DR. BRIEGER: The last page was 32. A judge, conscious of his responsibility, will hesitate to let his colleagues notice it. But is is impossible, to assume only on the basis of the oral testimony of certain witnesses that the same man who passes intelligent verdicts, be they lenient or less lenient, which in any case show reasoning, should have passed sentences which are outside the bounds of reason unless documents or other conclusive proof and above all the judgments have been presented.
I now wish to present some cases in defense in summary. The Prosecution attempted to prove through a few examples which are not identical with the indictment that my client had, as a judge, the tendency to commit offenses. In addition to thousands of cases which were not contested, the following cases will prove that this tendency did not exist, and I am not nearly exhausting the possibilities to prove the contrary.
In the case Cuhorst, the Poles Dobosz and Faryjewise, protocol page 8062, have already been dealt with in connection with the Case Skowron. The case Dorota occurred about the same time in 1942 (C.No. 35). It was discussed by my client (protocol page 8078) in connection with the indictment. Dorata, a Pole from Galicia with many previous convictions attempted to break prison and to strangle an official. The Court held an inquest on the spot. Dorata was sentenced to an additional prison term of six months, in spite of the prosecution's intention to condemn him to death.
As a typical case of a foreigner, I would like to mention the case of the Dutchman Nyhoff Exh. 1 C 39. Witness Barnickel protocol page affidavit Settler Ext. 1 No. 62 Document No. 55. The young defendant should have been tried for preparation for high treason. The Senate, with Cuhorst as presiding judge, stated however with great understanding that it was just a prank and convicted him for a transgression.