He looked at him personally, and he decided that in his opinion the death sentence against this juvenile was justified and that there was no occasion to introduce a nullity plea in his favor. The legal lack which, in my draft of the nullity plea, I had urgently explained, the General Public Prosecutor stated was insignificant. The Oberreichsanwalt, the Chief Reich Public Prosecutor, unfortunately, followed this same opinion and did not introduce the nullity plea. Klaussner was then executed.
THE PRESIDENT: The time has come for an afternoon recess. We will now take a recess for fifteen minutes.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
Q. Concerning the case of Klaussner-Klautzer, the verdict of the special court was not corrected?
A. No. Klaussner was executed. I believe that Klautzer, the older of the two, the nineteen year old, had the support of the party. And as far as I know, later on the Party tried to get him transferred from the prison to a special unit. I should like to add, that at that time, I was a great deal effected by that case, and I regret that I had too little support at the time. I admit that that juvenile prisoner was asocial. He had committed a number of thefts at Pforzheim. He had also committed a robbery on the read at the age of 15. He came from a family which was more or less asocial, that is to say, the prognosis for his later development was bad in itself. Klaussner came from a better family. He was the intellectual type of criminal. He was the imposter type. He had never formerly committed a violent crime, but in spite of all that, it seemed untenable to me that such different treatment should be meted cut to two people, and in particular, that the death penalty would be pronounced under the law against violent criminals for juveniles. It was possible to do so. He was over 16 years of age. He had become a criminal at an early age, and his attitude was regrettable. He had shown that his attitude in general was highly regrettable in committing that offense.
But as far as I see it, the Special Court did not sufficiently examine the point as to whether it was really necessary to pronounce the death sentence in the case of this juvenile. He had hardly been placed in the prison and one could not forsee what effect a longer term in prison might have had on him. His life was cut short. All hope was lost.
THE PRESIDENT: The Tribunal feels, at this time,that the facts of this pair of criminals has been quite fully developed. You should go to something else.
Q. I should like to put one more question which is mentioned in the affidavit concerning Klaussner's party affiliation.
Am I right in assuming that you, Witness, had recently seen the verdict?
A. Yes. I believe that in February, the verdict was shown to me.
Q. By whom?
A. By the Prosecution.
Q. Does it say anything in the reasons for the verdict about the party affiliation?
A. I do not know. I do not know, but I believe I remember he was a member of the Hitler Youth, and that the Party later on tried to help him.
Q. Have you any reason to say that during the trial, before the Special Court, the Party membership and the advise of the Party officers that he should be given more lenient treatment, was followed? Have you any reason to assume that the Court did know about that? Is there anything in the record to show that the Court knew that?
A. I cannot say.
Q. In your affidavit, you said that it would have bean a decisive factor if the Party had given its aid to this juvenile?
That is correct.
Q. Is there any reason in the files which you have seen to support that statement?
A. I believe I can remember. That is the reason for my statement. In the files which I saw at the time, such support by the Party, supporting more lenient treatment, was mentioned, whether that support was mentioned in any way at the trial, I do not know.
Q. What makes you state the fact that that support from the Party was a decisive factor for Cuhorst?
A. I merely stated that as far as I know, it was not a decisive factor. I concluded that from the fact that in the files, this support for the Party was mentioned, and that Cuhorst, as an old party member, I could consider that another fact, would have considered such support.
Therefore, he was treated in a more lenient way. He kept them from pronouncing the death sentence. That was merely a conclusion I drew.
Q. When you draw such conclusions, as a matter of fact, I would like to ask you to state facts. Can you give me facts to substantiate your statement?
A. I cannot give you facts as such. I cannot state.
Q. The rejection of the pardon plea was received by the Generalstaatsanwalt, the General Public Prosecutor?
A. At that time we were not concerned with the case of the parson, but at that time we were concerned with the submission of the nullity plea; in other words , we were concerned with the legal questions, since the general public prosecutor took the view that the nullity plea in favor of Klaussner should not be submitted; it was only consistent for him not to support a pardon plea. I had nothing to do with the matter of the pardon; that was a matter for the Ministry Division in which I was not employed at that time.
Q. May I point out to you that if Klaussner had previous convictions , his membership in the party would have been interrupted; is that correct or is it not that as a rule persons with previous convictions arc dropped by the party?
A. As a rule that is correct, but the party did not always hear of all convictions. There were many party members who remained in the party although they had been convicted.
Q. In your affidavit concerning the penal senate, concerning Mannheim communist case, before the penal senate; you mentioned this matter in your affidavit.
A. Yes, I did.
Q. I world like to apologize, but I would like to put one more question about the Klaussner case. Do you know that when party members had a sentence passed upon them, the court or the prosecution had to inform the party so that the party could exclude that person from the party? I am asking you that question formerly you said; you said later on that the party did not always hear of that.
A. There was such an instruction, but whether it was always adhered to, I am in doubt as to that. It also depended whether the offense committed by a member had been committed in his own district or in some other town.
When these offenses had been committed in his own district the party, us a rule heard of such offenses.
Q. Is it possible that in case where a death sentence was passed or a heavy penitentiary sentence, that the party member, if a party member if he was in any way seriously involved in such a case, there was a possibility that the party should not have heard of it; if it did not hear of it through the court, would the party not have heard of it through the press?
A. That is correct, but there are always exceptions.
THE PRESIDENT: The ruling has been made on this matter, and too much time has already been consumed. The attitude of counsel is more argumentative than that of the examiner. Your arguments had better be addressed to the Court rather than to this witness, or we must insist that you go to some other subject.
BY DR. MANDRY:
Q. Referring to the Munnleim communist case, the trial; how was it that in your affidavit you say that in spite of your opposition you had been prosecutor in that case; could thE general Public prosecutor, or the head of the prosecution , could he not at any time appointed anybody else?
A. That is correct, but in this case the expert on the case Fritz a few days before the trial, for some reason or the other, was no longer available. It is possible that there was another case which was hold at the same day to which he had to attend. I, myself, in this case had been concerned with it earlier on when I was still in that depart-ment, and for that reason the general public prosecutor appointed me in place of the public prosecutor, who was really competent to look after this case; the case was very comprehensive, and another person would hardly have had the possibility in such a short time to investigate the material properly.
I resisted the appointment though to this case because I had been ashed to put forward a motion which I, myself, did not consider justified; but it appears necessary to me if it is desired I should do so, first of all to give a general account of this case.
MR. WOOLEYHAN: May it please the Court, I am not saying that the answer of the witness is unresponsive. I merely say that another general account of this case is unnecessary because it has already been set forth in the affidavit which is already in evidence. we object to the repetition of more case facts which are contained in the affidavit now in evidence.
THE PRESIDENT: Your questions should not be merely repetitious of the witness' statements in the affidavit. Of course, if you have some contradiction of it, that's another matter, but merely to recite the allegations of the affidavit to the witness doesn't advance the argument, nor it doesn't advance your defense.
BY DR. MANDRY:
Q. Do you know of other death sentences passed by the First Senate when Dr. Cuhorst was the presiding judge?
A. I only know of two other death sentences; one is the Woessner case, at Ludwigsburg, and the other I have forgotten the name; it was a case of two convicts of Ludwigsburg who for preparing high treason had been sentenced to death. I myself did not know the details of the case. I only know that at the Ludwigsburg penitentiary there were communist activities concerning which Woessner and the other man whose name I have forgotten bear the responsibility. I neither made the indictment nor did represent the prosecution at the trial; and I also did not deal with the case at the pardon instance.
Q. Can you tell us the name of the judge who presented the case?
A. The judge in charge of preparing for trial the Mannheim case was Landegrichtsrat Prossler. I may say that I put forward the demand for the death sentences under compulsion, and I put it forward for all eleven defendants, but afterwards during the pardon procedure, I did what I could for three of the persons on whom the death sentence had been passed, but I was unsuccessful. I did persuade the general public prosecutor concerning a pardon for three of the five who had been sentenced to death to give his urgent support; among them was a sixty year old woman by tic name of Wagner, but the Reich Ministry of Justice in all cases.
MR. WOOLEYHAN: One moment, witness. May it please the Court, the Prosecution requests that the questioning be directed a little more; after all, one only has to say so and so is the name; if the witness is allowed to talk five minutes thereafter -
THE PRESIDENT: It would seem that it is proper at this time to admonish the witness to merely answer the question, and not to go beyond the question in a long, rambling answer. Try to pay attention to the question and merely answer it and wait for the next question.
BY DR. MANDRY:
Q. In your affidavit you stated that you had asked for the death sentence in the case of all the defendants?
A. Yes.
Q. Is that not in error; was the death sentence not actually demanded in the case of eight of those defendants?
A. No, I demanded the death sentence for all defendants. I remember that quite definitely; I was not allowed to depart from tho decree.
Q. Are the verdicts still available; have you seen them recently?
A. No.
Q. Do you know that Wagner had several previous convictions?
A. I believe that she had one previous conviction for preparing of high treason.
Q. In your affidavit you state that Cuhorst had sentences multiplied in leaflets and that he had to distribute it to Party offices. How do you know that? How do you know that it was Cuhorst who caused these sentences to be printed and distributed?
A. We were concerned with the Fussen case. In that case the verdict was printed and was published in the form of Leaflet.
I heard at the time that this was done at the instance of Cuhorst.
Q. Who told you so?
A. Well, I don't remember who it was, but it was an established fact for us at the time, and I also remember that the Reich ministry of Justice had asked for a report as to how it was that this sentence had been published as a leaflet. Furthermore, we were asked as to whom the leaflets bad been distributed.
Q. Was that a unique case?
A. It is the only case of which I am aware where a sentence was printed, and I am of the opinion that in this case it was entirely unnecessary, for the few sentences which were needed for purposes of information could have been publisher through the usual channels.
Q. I would like you to develop the responsibility of the Defendant, Cuhorst, concerning the publications. Can you tell us a little more about that?
A. I consider it entirely out of the question that anybody but Cuhorst should have been responsible for this publication.
Q. Which Party offices were in particular cases authorized to demand to see the verdict?
A. As far as I know, it was the Gau-Leadership Office which was entitled to demand to see a verdict. In certain cases according to who the defendant was, the Kreis Office, too, could ask to see the verdict if the person was a Party member or if the person concerned was a member of the Reich Labor Service, the Reich Labor Service could demand to see it, or in the case of a member of the H. J., the Hitler Youth Office could ask to see it, but this was a case that could merely have propaganda interests from a Party point of view.
For that purpose and as far as I can see, the pamphlet was printed purely for propaganda purposes.
Q. Do you know whether the Party demanded to have the sentence published?
A. I don't know that.
Q. Do you know whether the verdict was contested by the nullity plea?
A. The Reich Ministry of Justice had the verdict contested through the Oberreichsanwalt.
Q. What was the result of the new trial?
A. At the new trial the result was eight years penitentiary.
Q. And at the first hearing?
A. Three years imprisonment.
Q. In your affidavit you mentioned what you described as untenable the publicity of the trials. When he case was retried before the special court at Frankfurt, was the public excluded?
A. I don't know.
Q. Can you tell us anything as to whether in the case of Wassner there was a greater punishment pronounced in the Gesamtstrafe because the defendant had previously been sentenced by another court for another offense?
A. I did not understand your question.
Q. In your affidavit you call the punishment that was pronounced on Wassner as very severe. Do you know whether in that case the punishment which you mentioned in your affidavit included another offense for which a sentence had already been passed? In fact, wasn't it a case of two concurrent sentences?
A. I remember that penitentiary sentence included a sentence for an offense against the Malicious Acts Law. As concerns another sentence which might have been included in a concurrent sentence, I don't remember that.
Q. Is it correct that the special court at Freiburg had already tried this man?
A. I would be grateful if you would tell me a little more as to what was the case concerned with at Freiburg.
Q. It was a crime against the economic laws.
A. I know that in the case of Plattmann there had been an indictment for illegal slaughtering, but as far as I remember, I myself did not submit an indictment under that regulation under paragraph 154 of the Penal Code. Whether another sentence had been passed on Plattmann, I don't remember.
Q. Have you recently seen the Verdict?
A. No.
Q. Your affidavit was written in Nurnberg on the 25th of February. Before you deposed that affidavit, were certain definite questions put to you?
A. Yes.
Q. Did you write that affidavit in a manner such as you desired it yourself?
A. Various formulations, various phrasings in the affidavit are not my own but are those of the examiner. That is evident from the form of the statement.
Q. I did not see that. Why is that evident from the form?
A. The affidavit concerns various phrases which betray something of American German.
Q. Could you, perhaps, give a few examples as to the places in the affidavit where such phrasings in the American-German style have occurred?
THE PRESIDENT: That would seem to be-
MR. WOOLEYHAN: May it please the Court, if Counsel can point or direct the witness' attention to any particular phrase and ask him if it is either his own or one that he has sworn to, we won't object to this line of questioning. Otherwise, we object to it strenously.
THE PRESIDENT: The witness has answered that the phrasing is not always his own. It seems to me that a number of questions could go farther than that with this witness.
BY DR. MANDRY:
Q. For example where it says: "It was extremely dangerous in any sphere to contradict Cuhorst," Do you know anything as to whether his associate judges or the public prosecutor or the defense counsel before Cuhorst found it impossible to speak their own minds?
A. I believe that the associate judges of the special court could hold different opinions and express those opinions. On the other hand, I know that Cuhorst -- that it was difficult to persuade him to give up an opinion once he had arrived at it.
Q. How are we to interpret it? "It was extremely dangerous to oppose him in any sphere."
A. It was very easy to get a reprimand from Cuhorst when one opposed him.
Q. Is that dangerous then?
A. In that, yes. That was the way in which I meant it.
Q. Only a danger of reprimand?
A. Yes.
Q. In your affidavit you say also that Cuhorst was a fanatic traveler. Is that your own expression or do you mean that he became notorious through his traveling and that he mainly became feared through this traveling? Is that your own version?
A. I don't believe that that was my own phrasing, although the essence of the matter is correct.
MR. WOLLEYHAN: May it please the Court, this could conceivably continue for several generations. Now this is a sworn affidavit. The affiant has sworn that everything therein is to his best knowledge and belief the facts. Now whether or not the use of a phrase or the structure of the sentence is the way that he might have done it we submit is immaterial. The point is it is a sworn statement. We, therefore, object to this further line of questioning.
THE PRESIDENT: It should further be said that the witness has said although the phrasing is not his own, the essence of the statement is correct. Why should, there by any questioning as to the form of the sentence when the witness stands by what has been stated in essence?
We think that has gone quite far enough.
Q. In your affidavit it says that the Fussen case, that that case was in any case rigged up as a show trial. Is that your own expression or did it originate from the examiner?
A. I don't remember that but it's correct that this case was made into a sensational affair.
THE PRESIDENT: Mr. Defense Counsel, we feel that when we make a ruling that that doesn't mean much to you. We inform you that the ruling means something and we want you to observe it.
Q. You have sworn an oath to the effect that you were under no duress when you deposited that affidavit. I should like to ask you whether when you deposited that affidavit you did in any way feel intimidated?
A. Naturally I found it difficult concerning the judge with whom I collaborated formerly -
MR. WOOLEYHAN: One moment. May it please the Court, we further object to this question. The last paragraph of the affidavit states under oath that he wasn't intimidated.
THE PRESIDENT: We ask that the question be repeated.
Q. I asked whether this affidavit was deposited without duress or whether when you deposited it you were intimidated?
MR. WOOLEYHAN: I repeat my objection.
THE PRESIDENT: He may reply.
Q. If I understood correctly you have been asked to reply to the question.
JUDGE BRAND: Mr. Witness, in connection with your answer indicate if you think that you were intimidated, and by whom you think you were intimidated, if anyone.
A. I believe that during the first days of my examination, the whole of which lasted seven days, the examiner, Mr. Einstein, did place me under certain pressure to make statements at all. Of course, I found it very difficult to make any statements on this matter. Finally at the end of my statement I added the sentence that I reproached myself for not having taken adequate steps against the particular thing that happened in those days. After long negotiations I had to overcome my resistance.
Q. Today during the noon recess did anybody make a remark to you or did anyone give you the impression that your testimony this morning concerning -- was different from the terms and the tenor of your affidavit?
A. It is correct that during the noon recess I did meet Mr. Einstein and that Mr. Einstein told me he had not been very satisfied with my testimony.
Q. Is this correct: that during your interrogation by Mr. Einstein in Nurnberg you were under the impression that if you had not answered Mr. Einstein's questions you would have suffered -- you might have suffered arrest or that you might be at a disadvantage in your denazification proceedings?
A. It is correct that during the first days I was under that impression -- that I might have such a disadvantage also in regard to the denazification proceedings.
Q. Were you always alone with Mr. Einstein during the interrogations or were other persons near by?
A. Among others Landsgerichtsrat Dr. Ferber was present. Also Dr. Dorfmueller, a Public Prosecutor, who during the first few days was interrogated together with me. That is to say, we were interrogated alternately. Dr. Doebig was also present, in particular when legal questions were concerned and when I often had violent disputes or arguments with Mr. Einstein it was my impression that he used Dr. Ferber as a legal expert.
Q. Did one of the witnesses say anything to you about the interrogation by Mr. Einstein? Did anybody make any complaints in the sense that they felt themselves intimidated? That they were afraid that disadvantages may accure to them?
A. I dot quite understand what senses you are talking about.
Q. Mr. Dorfmueller and Mr. Ferber and the third gentleman whom you named or did you, yourself, concerning Mr. Einstein's interrogation methos -- did you make any complaint?
A. That was right. First of all Herr Faber and Mr. Doebig said anything to me to the effect that they themselves felt themselves afraid nor did Herr Dorfmueller do so. I know of Dorfmueller, that he and, Rothaug, the Presiding Judge of the Special Court of Nurnberg, that his relationship to him were always very bad. Furthermore, he wrote his statement essentially himself and deposited it like that.
Q. Concerning the interrogation tactics which were adopted towards you, did you consider them correct?
A. No.
Q. Can you explain what you consider to be incorrect?
A. First of all I failed to understand why they only wanted to know from me things against the defendant and that anything I could have said in favor of Cuhorst was immediately stopped. I stated that under German law that is possible during an interrogation -- that a witness is always permitted in one and the same direction and that he is not permitted -- that even in his written statement to say thing which of necessity represents a supplement of the other facts. I believe I spent a whole morning arguing with Dr. Einstein and he told me under American law it was different. As a witness for the prosecution I was only requited to make statements against the defendant and that other things wore of no interest.
Mr. Einstein repeatedly stated he felt that I was being unduly favorable in my judgment of Cuhorst, and I said that naturally I expected that circumstances in favor of Cuhorst--that is, questions about those--should be put by the defense, and that it would then be possible to form an objective picture of the defendant Cuhorst.
Q Were you placed under secrecy concerning the interrogation by Mr. Einstein?
A Mr. Einstein told me that I was allowed to say that I had been with him, but as to the actual contents I was to keep silence.
Q In what building and under what circumstances did the interrogation take place?
A It lasted eight days, and it took place in Mr. Einstein's office.
Q Were you afraid that you might be arrested?
A During the first days I did have that fear. Mr. Einstein said that he was surprised that I had been discharged from internment.
Q Where had you been interned?
AAt Ludwigsburg and at Heilbronn.
Q From that question did you conclude the possibility that your re-arrest was being contemplated in connection with your attitude in the Cuhorst case?
A Yes, I was counting on it, although I cannot say that Mr.Einstein actually held that prospeckt out to me. I was supposed to have been interrogated at the camp, but it never happened.
Q Who saw to it that you got your food? Were you being given any presents, tobacco and other things?
A Mr.Einstein frequently offered me tobacco, but I always refused it, and said I was a non-smoker. Occasionally in the evening, when it was very late, he offered me Coca Cola.
Q Did you see to your own food, or were you fed?
AAt lunch time I had a meal at the mess, and in the evening I had my meal at home, that is to say, at the witness' house.
Q Perhaps I put this question to you before, but I should like to repeat it.
Did any other persons who had been interrogated by Mr. Einstein, here or elsewhere, make statements or raise complaints about the interrogation methods?
MR. WOOLEYHAN: May it please the Court, I object to that question on the ground that counsel himself states that it was asked before, and it has been developed in detail.
THE PRESIDENT: I could not hear all you said.
MR. WOOLEYHAN: I object, if the Court please, to that question on the same ground as that indicated by counsel, namely, that it has been asked before and it was developed in some detail.
BY JUDGE BRAND:
Q Witness, do you now understand that in this Court here and now you are entirely free to speak the whole truth as you have sworn to do, without fear and without hope of any favor? Do you understand that?
A Yes.
Q You are sure of it?
A Yes, I am.
Q What part of your testimony which you have given in this Court today do you wish to retract as untrue, if any?
I will state it again. Do you wish to say that any testimony you have given here today was untrue?
A No.
Q You are satisfied that you have the opportunity to tell the truth here, are you?
A Yes. I felt the need for that; since the statement which I signed in Mr. Einstein's presence was so one-sided, I felt the need to say other things.
Q Just a moment; you are going to have full opportunity to testify further. I am asking you only if you have told the truth here in this room.
A Yes.
Q Now I will ask you, is there any statement in your affidavit which you now wish to say was untrue when you made it?
A. There are several statements contained in it which are considerably exaggerated. At any rate, it contains statements which I personally would not have phrased in that way.
Q Well, we are not so much concerned with the phraseology; I am asking you if there is any statement in your affidavit which is essentially untrue.
A No.
Q Do you now feel that so far as the affidavit went, in its essence it was true?
A Yes.
Q But we do understand that you desire to add other statements which would be favorable to the defendant and which were not put in your affidavit, is that right?
A Yes, Today I have several times had the opportunity to say such things, and I am ready to say further things of that type here before the Court.
DR. MANDRY: May I make a statement?
BY JUDGE BRAND:
Q The President of the Court has suggested that I now instruct you that you are not to confer, after the court has adjourned, either with counsel for the prosecution or with any counsel for the defense. You are not to discuss your testimony with any person until your return to this court. Do you understand that?
A Yes.