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.
The verdict was supposed to be rescinded by means of an extraordinary protest. The Reich Public Prosecutor found out from the Seniority list which judge presided in such a bold court. The Presiding Judge was my client.
The witness Dr. Stuber (Tr. page ) has besides my client (Tr.page ) described the case C No. 38. He observed a carefulness and a human understanding of the court in which Cuhorst presided, an attitude which caused a father in Holland to write a letter of thanks in which he praised the humane treatment of his son by the court.
I also went to mention the case of the young Czech, case No. 44. Testimony Cuhorst, page of the protocol, affidavit Eckert C. No. 46 Document No. 36. During this trial before the Special Court, the Presiding Judge Cuhorst established the fact, contrary to the testimony of the defendant himself, that the defendant was not yet of age, but had even to be considered as juvenile according to the Penal Law. Recess of court for the purpose of getting information, regarding the correct age of the defendant and inquiries through the police broadcast in Czechoslovakia, both on the initiative of my client, saved the defendant of the penitentiary which would be the sentence pronounced on grown up people.
The legal position in cases of looting after airraids has been discussed in the case of Togni.
The case 45 - Cuhorst testimony in protocol page 8086 of the Frenchman Sarter et al. and the case 36 page 8079 of the protocol, affidavit Eckert Document Book II, Exh. C No. 36 prove how carefully the Special Court with my client as presiding judge, examined the cases of looting. A case in which death sentences were asked for the foreigners, looting at the Kain Station in Stuttgart, but which my client did not approve.
The remarkable case Souechre (No. 34) the verdict of which is con tained in Document Book Ia on page 27, Exh.
, is an instance in which, upon the strength of thorough deliberations, the death sentence asked for had been avoided and in which the Special Court had done everything in order to prevent a nullification plea by a skillful wording of the reasons. The perpetrator, a Frenchman was accused of attempted murder according to the decree against violent criminals, whilst the Special Court with Cuhorst as presiding judge only pronounced a sentence of 3 years penitentiary, inclusive the time served in the dention prison. This verdict has to be considered as a particularly lenient one, because the perpetrator carrying a weapon, broke into a bedroom of a young girl during the night and tried to knock her down with the weapon. For the benefit of the perpetrator the court assumed that he only attempted a burglary although there was also a strong suspicion of an attempted rape.
Also the verdict in the case of the young Nicaise, case 30, affidavit Dincklacker, Exh. C. No. 132 Document No. 135 does not fit into the picture, of the Special Court any my client, which was drawn by the Prosecution.
It is evident from this verdict that in the case of looting, committed by Louisa Togni, the court had to pronounce a death sentence according to the facts. In the case of Nicaise in which not looting, a crime deserving death, but only a serious burglary was assumed, the court with Cuhorst as presiding judge, was satisfied with the pronouncing of a sentence to 4 years of penitentiary, deducting the 4 months spent in pre-trial detention, although the perpetrator was a Belgian, and therefore a foreign worker and contrary to the demand of the Prosecution for a prison term of 6 years. The youth of the defendant and his lack of maturity were fully taken into account. The defendant accepted the sentence as justified and asked for the permission to remain in Germany alter the serving of the penalty. The verdict can be found by the Court in Document Book IA on page 6, Document No. 3 Exh.
1. Majcher und Strawowski, Case 4:
Cuhorst testimony p.8009 2. Milk und Margitai, Case 5:Cuhorst testimony p.8011, Affidavit Alfred Frey Dok.
B.II, Dok.Nr.40, Exh.C.Nr.50 3. Polleck, Case 8:Cuhorst testimony p.8018 4. Klausner Case 9:Cuhorst testimony p.8019 5. Oehlbach Case 10:
Cuhorst testimony p.8021 6. Schramm Case 11:
Cuhorst testimony p.8023 Affidavit Dinkelacker Supp.
II,Dok.Nr.135,Exh.C.Nr.132 7. Staudenmeier Case 12:
Cuhorst testimony p.8029 Affidavit Walter Frey Dok.
B.II,Dok.Nr.42,Exh.Mr.51 8. Wirbel Case 14:
Cuhorst testimony p.8036 Affidavit Eckert Dok.
B.II, Dok.Nr.36 Exh.C.Nr.46 9. Bruedcr Wolff und Beteiligts, Case 15:
Cuhorst testimony p.804 Affidavit Eckert Dok.
B.II,Dok.Nr.36,Exh.Nr.46 10.
Michael Schmitt Case 23:
Cuhorst testimony p.8052, Hegele testimony p.8383, Schoeck testimony p.8243, Affidavit Eckert Dok.
B.II,Dok.Nr.36,Exh.C.Nr.46, 11.
Soell Case 24:
Cuhorst testimony p.8055 Affidavit Settler Dok.
B.II,Dok.Nr.55,Exh.Nr.62, Affidavit Eckert, Dok.
P. II, Dok. Nr. 36,Exh. C. Nr. 46 12.
Stiegler Case 25:
Cuhorst testimony p.8056, Hegele testimony p.8380 13.
Eckstein Winter, Case 28:
Cuhorst testimony p.8060 Affidavit Hartner Dok.
B.II,Dok.Nr.46,Exh.C.Nr.54 14.
Esterle Case 46:
Cuhorst testimony p.8087 Affidavit Neuschwandner Dok.
B.II, Dok.Nr.49,Exh.Nr.56 THE PRESIDENT:
The next page, please.
DR. BRIEGER: I have decided no longer to claim the attention of the Tribunal, but when my colleague, Dr. Kubuschok has finished, I should like to give you the missing exhibit numbers.
CORRECTION SHEET MORNING SESSION 18 October, 1947 The following pages 10560-A to 10560-Q inclusive are to be incorporated in the transcript following page 10560.
Pleadings Cuhorst Amongst the cases concerning foreigners I would like to mention as last case for the exoneration of my client the verdict against Rihnowski and eight associates.
The defendants who were also charged with thefts and hiding of stolen goods; had amongst other things also made blackmarket deals with bread coupons for 1600 kg of bread. They were indicted under the provisions of the decree against Public Enemies and the War Economy Decree. The principal was sentenced to years of penitentiary, which was not too severe a penalty.
Final Plea CUHORST (page 15 of original) Some cases against nationals should be discussed additionally.
I select the case 51 versus BUECHE and KLINGLER case 32 versus FREY and case 55 versus Handschuh in order to challenge the non-substantiated and and unjustified assertion that my client had endeavored to have as many death sentences passed as possible. I cite these cases as examples for the numerous cases of similar nature which have been treated in my argumentation and in which the court under the presidency of CUHORST did not comply with the demand of the prosecution for a death sentence. The case 51 is treated inter alia in the affidavit ECKERT; Document Book II; Exh. C. No. 46; Document No 36; case 32 by the then defendant herself in Document Book II, Exh, G. No. 19, Doc, No. 41; and case 33 in the affidavit ROESSLER; Doc. Book II, Exh. C. No. 61, Doc. No. 54.
On 7 November 1942, my client presided over the court in case No. 61 versus SCHAEFER. Compare affidavit ROESSLER; Doc. Book II, Exh. C. No. 61, Doc. No. 54, and testimony CUHORST' record page.....In this case the court took great pains to save for the human community the perpetrator who was not yet past amendment; and avoided to pass a death sentence. Only after a nullification plea was the reasonable sentence of the Stuttgart Special Court changed to a death sentence.
(page 16 of the original)
by another court.
10560-A Case HERMANN, No. 37 (affidavit CUHORST', record page .....affidavit HARTNER; Doc.
Book II; Exh. C. No. 54; Doc, No. 46) is an example for the pains taken by my client in favor of a defendant to have a death sentence avoided. Already in October 1939, my client had been reprimanded by Minister GUERTNER in Berlin for too mild a sentence passed on one Horn for attempted rape. For reasons of too great an interest which the police displayed in RUPP; my client, in this very case, had the defendant put directly into the safe prison, since certain rumors had come from other districts that the police was not averse to alter sentences occasionally. This fact is proven by Exh. C. No. 46, Doc. No. 36, Doc. Book II, the statements of Dr. AXESDORFER, record page ....and CUHORST record page...
These sentences likewise refute the assertion that my client had done his utmost to get as many death sentences as possible. Nobody who is conversant, by his own observation with the manner in which my client passed judgment; will be able to maintain such a charge with a clear conscience.
In addition I cite here only two more cases, selected from the overwhelming evidence disproving the general assertions concerning the political activity and dependency of the Stuttgart Special Court under the presidency of my client.
As regards the case No. 56, Dr. HARTMANN, the former defendant himself has made a statement and thus has supplemented the testimony of my client, record page .... My client found out in this case that in the background of the criminal proceedings there was a woman with whom the District Leader (Kreisleiter) was entangled.
Final Plea CUHORST The Special Court in Dr. HARTMANN'S case did not lend itself to misusing the private affairs of the district leader (Kreisleiter) for forming its opinion.
In that trial, in which my client presided, and in another one presided by another judge of the same court, Dr. HARTMANN was acquitted.
10560-B Finally, in the SCHOLL case (Case No. 63), in addition to the affidavits made by ECKERT (Exh.
C No. 46), Document C No. 36) and PAYER (Exh. C No. 58, Document No. 51), and his own statements (Record Page ) I can rely on Frau SCHOLL's affidavit (Exh. C No. 21, Document No. 59). Frau SCHOLL is the wife of a man who is holding today an eminent position in public life - the first mayor of Ulm an der Donau. As it is, the witness would not have made her statements; if she had not particularly well remembered the attitude of my client towards her family.
Both her sons were indicted in 1338 before the Special Court under CUHORST. At that time Frau SCHOLL wrote to my client; thanking him for his humane attitude towards the young men. Five years later; one of the brothers SCHOLL together with his sister was brought to trial in Munich and was sentenced to death for political agitation by a court under FREISLER. Both of them were executed. Some time later the married couple SCHOLL with the one surviving daughter faced a court under CUHORST. According to the affidavit, Frau SCHOLL and her husband realized that Herr SCHOLL's offense would have had to be viewed from a far more severe legal point of view, if its whole extent had been established. At that time my client, by adopting a consciously reserved, if not harsh, attitude, was anxious to avoid going deeper into the details of the matter than was absolutely necessary. This was an attitude which sprang from the generosity in political cases attributed to my client by many witnesses.
For me the decisive factor in the SCHOLL case is that CUHORST also in the second SCHOLL trial acquitted the defendants; although in the meantime the death sentences in Munich had been passed and carried out. I think that for that reason alone the acquittals, particularly the acquittals in the second SCHOLL trial, did demand an unusual measure of courage of CUHORST. I subsequently questioned CUHORST in the witness-box as to whether the two SCHOLLS (brother and sister) had been pioneers of the democratic youth. For him such an answer was very natural, for in present publications, newspapers, books and on the occasion of festivals 10560-C Final Plea CUHORST they are generally being rated as such.
In self-restraint he resisted from giving this answer, which would have been favorable to him, and merely pointed out that the SCHOLLs represented the remaining group of the Buendische Jugend, that is to say, those who had not seceded and gone over either to the Communists or to the Hitler-Youth. Thus in my opinion it can only have been a group on a democratic basis. Dr. VOSSLER, as a rector of the University and accordingly its head, in a festival at the Munich University hall, honoured the SCHOLLs in this sense some time ago. It is of further prime importance to me that CUHORST, in spite of the many political trials against the SCHOLL family, treated their members in a confessedly noble manner.
Free of all political considerations in the sense of a dictatorship, the law was here administered by judges who based their judgment solely on legal considerations. It is fair to assume that no witness and no deponent in this trial, with his own family members as defendants knows by experience the Stuttgart Special Court so well as does Frau SCHOLL. Her sober statements arc of a persuasive eloquence which convinced.
10560-D Though there is no mention in the indictment of the fact that my client was on the Supreme Court, the prosecution did, indeed, deal with a few cases of this court.
The so-called Mannheimer case -FRITZ and ten accomplices - has been described in detail by the witness Berthold SCHWARZ, Rec. P... My client has taken notice of it. Page, ... as well. In the same manner as with regard to a condemned person the witness SCHOECK page .... In addition the case is described in the Dr. ROSSLER Affidavit, Exh. C 61. I so hot repeat the fact but merely refer to it, that SCHWARZ' statements show quite clearly the inner agitation that moved my client to turn against the increased sentence which the prosecutor was instructed to demand. SCHWARZ says: "I have never seen CUHORST as furious as that."
Any further cases are described in detail by the witness Dr. STUBER, Rec. page.... In all cases we were dealing with native Germans and with home countries. Those are all the cases which were dealt with in the Stuttgart Supreme Court under the presidency of my client and which resulted in the death sentences being imposed. I am of the opinion that even those cases, the findings and the verdicts of which are no longer in our possession, still prove, also in the memory of the witnesses that they can withstand every legal criticism, in the same way as the attitude of CHUORST in the Mannheimer case can withstand all human criticism.
No unfavorable conclusion can be drawn against my client from these verdicts of the Supreme Court with respect to the Special Court Stuttgart, just as the way legal decisions were rendered in the Supreme Court gave me the desired opportunity to prove with the cases of the foreigners NYHOFF case C and the Dutch case WALDSHUTER case C, that my client, in cases of high treason against foreigners, behaved in such a manner as the prosecution, according to counts 11 and 23 of of the indictment, would have wished him to behave. I would stress the fact again, that the Supreme Court under the presidency of my client had never imposed a sentence of death on Jews and foreigners.
By virtue of the plea of the prosecution, I now of course assume 10560-E that the two cases of the Penal Chamber mentioned will no longer be the subject for a trial, as CUHORST is no longer mentioned in connection with cases of High Treason.
The Principle of the Bench(Kollegialprinzip) Summing up I can say the following with respect to all the aforementioned cases:
The hearing of the evidence has shown, that my client has acted solely as a judge haying the same rights as his colleagues on the bench. The decisions on the guilt and punishment of a convicted person, on the acceptance or rejection of a decisive proposal are, therefore, one and all decisions of the bench, which according to German Law concerning the Constitution of the Courts, are legitimate majority decisions, to which the judges had to bow in deference, if perchance they had been outvoted.
That these decisions did not turn out to be unanimous in a great many cases in shown by Exhibit C. No......... and No............ In the whole hearing of evidence my client's vote has not been taken into consideration. The obligation to maintain the secrecy of consultations is the palladium (asylum, protector) of the practice of law. My client saw no reason to violate the same.
On the other hand the Prosecution has not been able to prove how my client voted in particular instances, and what was the nature of his complicity in the contested verdicts, perhaps. In order to convict my client of an individual guilt, it must, therefore, be established in every case how my client voted, since the so-called "Fuehrer -principle was not accepted by the courts. This fact was not established. Thus the Prosecution has only been able to prove in the cases which it adduced, how the total court decided, without regard as to whether my client voted for or against the decision. Therefore, no individual acts of my client have been proven, for which he would have to bear individual responsibility as judge.
Also with reference to the Stuttgart Special Court it has been suggested that it had been a Tribunal especially for severe political 10560-F cases.