Furthermore, I believe I know for certain that the trial against a woman called Helene Polek was also conducted by him, who had murdered a farmer's wife who was her employer. Furthermore, I know that he conducted the trial against the Pole who had stabbed to death his mistress in the street. That Cuhorst conducted also other trials of Poles, I don't think.
Q. Then, you believe that you were mistaken when you stated also in your affidavit, or the affidavit states that you signed, that in case of less important crimes Cuhorst passed death sentences in order to intimidate foreign workers. Was that a mistake in your affidavit, or is that correct?
A. Yes, that was an error in my affidavit. At that time I based my statements on the fact that a certain Case of which I was thinking at the time had been conducted by Cuhorst, but in the course of the interrogation my attention was drawn to the fact that a case of Skovernon had been conducted by Cuhorst at Ehingen; that Skovernon had left his place of work with a farmer, had committed a great many theft; and had resisted arrest by the policemen by biting his hand. I wrote out the indictment against him, but I did not attend the trial myself because it was not held at Stuttgart, but in Ehingen; Skoveron was sentenced to death.
Q. How old was he?
A. The offenses were committed over a period of time of about three months. Skoveron at the beginning was seventeen years of age; when he had completed his crimes, he was eighteen.
Q. Was the prosecuted under the law against Poles and Jews?
A. He was indicted on the basis of the law against Poles, in conjunction with the public enemy law, and the law against violent criminals, that is to say in virtue of the laws against Poles, as a virtue of the other German laws against which he had infringed.
Q. Is it your memory now that that sentence was given in the court over which Cuhorst presided?
A. Originally I could not remember the Skoveron case; during my interrogation, however, the defense counsel whom I met informed me that Cuhorst had been the presiding judge.
Q. Are you satisfied that is correct?
A. I did not see Skoboron myself during the trial therefore I cannot express a definite opinion as to how I would have decided it if I had been the judge.
Q. No. I am sorry. I didn't make you understand me. Are you satisfied now clearly in your own mind from the information that you have obtained that the defendant Cuhorst tried this case?
A. I believe that I can say for certain that according to the information I obtained Cuhorst was the presiding judge but I can only relay on hearsay. I do remember, however, that the files were submitted to the Reich Ministry of Justice passed through my hands and that I saw the name of Cuhorst on the verdict but as it was that the report on the pardon plea in such cases in which the expert had not himself attended the report was written by his deputy who had attended the session but if I understood the defense counsel Witzigmann properly Cuhorst was the presiding judge.
Q. Now, you didn't try the Ochlbach case?
A. No.
Q. Did you see the prosecutor who tried it after the trial?
A. The public prosecutor returned from that journey and told his colleagues in general that Cuhorst had sentenced the man to death who had been carried into the courtroom on a stretcher. I did not hear any more about that case.
Q. Do you remember the case of Luise Togni?
A. Luise Togni? Yes, I do. I myself wrote the indictment against Luise Togni for plundering. Luise Togni was an Italian woman who had only been in Germany for a short while. Immediately after an air-raid, she took from a burning building two suit cases with plunder. The indictment was made because of plundering. I did not attend the trial itself. A colleague who attended that particular trip of the Special Court presented the prosecution at the trial Luise Togni who sentenced to death.
He reported to me about the trial and added that there were doubts as to whether Luise Togni had been fully aware of the wrongfulness of her action. She had only been in Germany for a short while and concerning conditions in Germany particularly heavy punishment for plunder, she had not been accustomed to those. Therefore, before I saw the verdict I suggested that Togni should be pardoned and took up the matter and Luise Togni was pardoned. In the same sense the defense counsel -- the defense counsel made statements to the same effect. He, too, had submitted a pardon plea for Togni. The Special Court did not consider the pardon plea.
Q. What happened eventually?
A. If I remember, the Reich Ministry of Justice instructed to the effect that the death sentence had been commuted to a penitentiary sentence. I do not remember the term of the penitentiary sentence. Togni was in the Ravensbruck Court Prison and I, myself, drafted the report to the head of the prison by width he had to tell Togni that she had been pardoned.
Q. Could she speak or write the German language?
A. The language was in broken German. She did not speak colloquial German by any means.
Q. Had she come from Italy as a factory worker?
A. Yes. As far as I remember she worked with the Dornier works or the Maybach works in Friedrichshafen.
Q. How long had she been in Germany when this death sentence was given?
A. For about sic to nine months.
Q. That's all.
BY DR. MANDRY: May I ask whether a translation occurred just now? What did the witness say about the attitude of the Special Court concerning the pardon plea which he had drafted and which defense counsel had also submitted?
THE WITNESS: I said that the Special Court did not oppose the pardon plea but I stated that the Special Court did not oppose the pardon plea.
MR. LAFOLLETTE: I am finished.
THE PRESIDENT: Defense counsel may cross examine the witness.
MR. LAFOLLETTE: In the interest of orderly procedure I would like to say that if this cross examination doesn't continue through the afternoon we will put in documents thereafter which will be in three books, as I recall, and practically all from possibly G or H on down through the end of the book so if you want to get, your Honor, the books -
THE PRESIDENT: In any even it will last until the recess. At that time if you will notify us which books you want brought --?
MR. LAFOLLETTE: Yes.
CROSS EXAMINATION
BY DR. MANDRY: May it please the Court, now I begin with the cross examination. Witness, you have spoken of trials of young Poles -- of one yound Pole. Do you remember the trial at Urach of a young Pole?
A. I think that the proceedings took place at Ulm. I only know that at Urach the case of that Pole was tried who had stabbed his mistress but if the facts are stated to me I may also remember the case where the trial was held.
Q. Did you not as a public prosecutor appear at Urach where a young Pole was tried who had committed a sexual crime and don't you know whether a plea of nullity had preceded that trial?
A. I know that a young Pole was tried for sexual crimes but I do not know whether a nullity plea had preceded that trial
Q. What went with the files of those cases? Was there a photograph of the offender?
A. Yes, there was. Cuhorst had the photograph made.
Q. What was the purpose of that photograph?
MR. LHFOLLETTE: Wait a minute; if your Honor please, as I recall, on direct examination this witness testified that he could not testify that Cuhorst had generally passed sentences against Poles. He testified about one case and in view of the fact that he did not affirmatively testify on direct examination covering the cases of Poles generally I object to the question as being outside of the scope of the direct examination.
THE PRESIDENT: It seems that the witness did say he didn't know about others and if he doesn't know about others how could he testify about others?
MR. LAFOLLETTE: If I asked only about one case and whether there were proceedings against any others, when he said he knew nothing about any others is certainly not relevant to cross examination.
THE PRESIDENT: The cross examination can enquire about anything he knows about the prosecution of Poles but he said he didn't know about any others. That's the difficulty, as I am able to remember it, if he doesn't know he shouldn't take our time or take yours.
Q. Don't you know perhaps something more about a case of such a Pole? A case where there was a photograph filed?
A. I believe there was a case -
MR. LAFOLLETTE: Just a minute. If your Honor please, I object to any questions about Poles other than the case about which the witness testified. The witness testified on direct examination that he knew nothing about cases generally. He names three murder cases less than murder where the death sentence was given and the witness said "no". I am bound by that. I can see no purpose in this examination nor do I think it's pertinent. I am bound by the answer that he knows nothing about any other Poles and then he voluntarily testified about a specific case. If there are any facts about that specific case, Your Honor, then I think it is in the purview of cross examination but this goes outside of the purview of cross examination and is improper cross examination for that reason.
THE PRESIDENT: The Tribunal has ruled.
MR. LAFOLLETTE: I don't think counsel understood he is not to ask any more questions on this.
THE PRESIDENT: Did counsel understand that the objection was sustained? And on the grounds
Q. I shall put no further questions on that point. In your affidavit you mentioned that the Special Court at Stuttgart, I think that it was implied that was under Cuhorst as a Presiding judge, passed one death sentence after another. Was that phrasing chosen by you, yourself, or was it originally from somebody else?
A. Either I chose that phrase myself or whether it was used during the dictation, I don't remember for certain now. At any rate I wanted to say by that many death sentences were passed and that in a relatively short period of time.
MR. LAFOLLETTE: If your Honor please, I would like to state now that any questions asked this witness with reference to how he phrased something or whether someone else phrased it, I would like the Court to understand that I automatically object to it if asked this witness whether he was coerced in any way or there was anything in his statement that he felt was basically wrong and any further questioning as to whether or not someone wrote a language that he signed without coercion, I think is completely irrelevant and not proper cross examination.
THE PRESIDENT: It might be well to test this witness as the other witness was tested as to whether even if the phrase was not his essentially the meaning is the same. If that were put to him we would have a better foundation for your objection and you have the opportunity to make that inquiry now if you desire.
MR. LAFOLLETTE: So we will eliminate going over this thing. Witness, pay particular attention to what I am going to ask you; having regard to the phrasing of every sentence that you find in the two affidavits that may not be exactly in language which you used, do you find anything in any statement which in substance is contrary to your ideas as stated or the fact as you understand them in the affidavit which you made?
A. The affidavit which I deposited is correct as to its contents. It may be that one word or the other or one phrase or the other was weakened or emphasized but at any rate I stand by the affidavit and by the meaning which it guarantees.
MR. LAFOLLETTE: That answer coupled with the fact that he said he wasn't coerced is the basis for my objection to that line of questioning.
THE PRESIDENT: We will take care of that line of through without formal objection.
MR. LAFOLLETTE: Thank you.
Q. Witness, Can you make a statement to the Court that concerning tne statement in your affidavit that all trials conducted by Cuhorst were tried at the speed of lightning so that the objective conduct of Trials suffered concerning that particular sentence? Will you give us actual details and facts and perhaps if the Court permits you, will you also tell us about the way in which that sentence came about?
A. In the course of my interrogation I was asked how Cuhorst conducted his trials. In reply I stated that he was very quick. The interrogator and myself then dictated the word "very quickly". We discussed whether the trial had been slow enough. I said "no" and I adhere to the word "very quickly". Then I put up with the word "speed of lightning" because I did not consider that a distortion of my own statement but merely a colloquial expression.
I believe, therefore, that the word "affenartig", "speed of lightning", here has the meaning of "very quickly".
MR. LAFOLLETTE: If the Court please, I have no objection to this question up to the last sentence in it, that which the Court had ruled out. That is, "that is not your language but someone else's". Under the ruling of the Court has made he can state the facts if Cuhorst conducted his trials at lightning speed and I will never object but I am not going to have this affidavit, as to its language or inference made that its contents are not correct. This witness didn't want to sign anything wrong and counsel has done this again despite the Court's ruling. I am going to object to it now and ask the Court to directly inform this Couse that the Court will not permit this kind of interrogation any longer. I will go a long ways to be nice to defense counsel out I am not going to be run over.
THE PRESIDENT: It has been clearly stated so that nobody an misunderstand that the language that is implied is not subject to further interpretation. Now, you may deal with facts to demonstrate or illustrate the statements made in his affidavit but not to challenge the language used because he says it's essentially correct.
Q. In your affidavit of 4 November you further said that the defendant was particularly severe in proceedings against foreigners -that Cuhorst was particularly severe in proceedings against foreigners, and that as often as possible he passed the death sentence.
A. Yes, I did use that sentence.
Q. Can you by facts, individual examples and special events, illustrate that sentence?
A. Concerning one sentence, a severe attitude towards foreigners and a ruthless attitude I was thinking of the Polish case where Cuhorst presided over a trial. The two Poles had murdered and Cuhorst ordered that the skull of the person who had been murdered was to be placed on the table in the Courtroom after it had been medically processed.
That struck me as very strange for I did not deem it necessary after a photograph of the person who had been murdered had been filed. That is what I meant to say by the words "ruthless attitude".
Q. Would you please give us individual examples for the fact that the death sentence was passed as frequently as possible that -first of all, put back this question and I ask you about the skull which you mentioned just now. Was that skull submitted by the prosecution as evidence.
A. I, myself, was the expert in that case, and I naturally would have to know if I had submitted that skull. In no single case of murder where I was prosecutor was such an exhibit submitted nor was it necessary for with the files we had photographs in that case. The skull had been inspected by the official and his inspection had revealed that the skull was completely broken. Therefore, I, myself, had no reason to produce further evidence beyond it's pieces of evidence which were already contained in the files.
Q I would now like to revert to my earlier question. What facts can you relate to us concerning the statement in your affidavit that he passed death sentences on tho foreigners as frequently as possible?
A That expression, "as often as possible," is not to mean, "at every opportunity that offered;" but it is to express, in a general way, that against foreigners death sentences wore often pronounced. Again, I have in mind the special case of Togni and, furthermore, at the prosecution the case of a thief from Uem was discussed, who was sentenced to death, and who, as far as I know, was a foreigner. Those two cases I had in mind when I made that statement.
Q Were they the only cases you had in mind when you wrote that sentence?
A I can only make reliable statements on sentence of foreigners in so far as they were indicted within my sphere of office. Concerning other cases I can only speak through hearsay.
q From your sphere of activities you do not know other cases; or, perhaps I should phrase my question differently. Do you know from your sphere of office, of other cases?
AApart from the three death sentences against tho Poles, Cuhorst in my sphere of activity did not pass a death sentence on a foreigner.
Q Is it correct that in the case of certain offenses the death sentence was mandatory?
A Yes. There were legal provisions which allowed no other punishment but the death sentence.
Q In the case of Luise Togni, was it legally possible to give any different punishment, if plunder had been established?
A If plunder was assumed, no.
Q As far as you remember, did the court in that case assume plunder?
A No.
DR. MANDRY: I should like to ask the Tribunal to give mo permission to put tho following question:
Is Dr. Rimelin, was Dr. Rimolin a representative of the prosecution in a case where a Pole had committed sexual offenses against little girls?
MR. LA FOLLETTE: I object, your Honor. This was not elected on direct examination.
DR. MANDRY: I withdraw my question.
THE PRESIDENT: You withdraw the question.
BY DR. MANDRY:
Q In your affidavit you stated that the Special Court at Stuttgart, with Cuhorst presiding, did not only pass death sentences on foreigners in murder cases, but also in cases of lessor gravity, for reasons of providing a deterrent, cases in which not violent or habitual criminals were concerned. Was such a penalty possible; was it permitted under tho law?
A The Public Enemies Law, for example, did allow the death sentence if an offense had been committed by exploiting the blackout, and if in its occurrence it was different from another trial of he same type. That was the terminology concerning a particularly grave case within the meaning of paragraph two of the Law against public enemies. In such a case, therefore, even if only one single offense had been committed the death sentence could be passed.
Q In your affidavit you further stated that Cuhorst in political cases was asked to help National Socialist Law to victory in a ruthless way. Just a moment. I want to ask you another question. Did you, in your sphere of work, deal with political cases?
A Generally speaking, I did not deal with political cases. That was because the political cases - that is to say, preparation for high treason, treason, and favoring the enemy, did not come within the competency of a Special Court but within tho competency of the Penal Senate.
But one of Cuhorst's verdict was much discussed a sentence which was passed in Mannhoim, and in which, as far as I remember, and if I am properly informed, six Communists were sentenced to death.
Q In that case, did you deal with the case officially or not?
A No.
Q Which cases do you know from your own activity, because you worked on them, what political cases, where a Cuhorst was asked to help National Socialist Law to victory ruthlessly?
A I have just stated that in my own sphere of activity I did not deal with any of these political cases, but that these cases were a matter for the prosecution at the District Court of Appeals; and, if I did discuss the case of the six Communists, that was because I know of it, and because it was discussed a great deal in Stuttgart.
THE PRESIDENT: May I inquire at this time whether those six Communists were German nationals, or whether they were from the East?
WITNESS: I do not know.
DR. MANDRY: May I continue, your Honor?
Q In your affidavit you mentioned the Oehebach case and stated that -- anyway, this is how I interpret the words used in your affidavit, "that you considered Cuhorst's attitude a horrible perversion and humiliation of justice."
A The word in the affidavit is not "vergehen," but "verga ng;" not offense, but attitude. As the case was described to me - that is to say, that a man who was carried into the courtroom on a stretcher was sentenced to death, I have to say that meant bringing German justice into contempt.
Q Have I understood you correctly - if not, please correct me that you yourself did not officially deal with that case?
A No, I did not. But I did hear about the case.
Q In your affidavit concerning the Togni case, you said, in summarizing, as the last sentence of your statement, it was clear that Cuhorst passed the maximum, sentence in this case, too.
A Yes.
Q Did the Special Court have the possibility, if plundering had been established, to pass a different sentence?
A I pointed out that the fact of plundering allowed only the death sentence to be passed. If the Special Court did assume plundering to have occurred, then it did have to pass the death sentence.
Another question was this, whether the way the offense was committed could not be interpreted, perhaps, as meaning that Luise Togni did exploit the extraordinary war-time conditions and therefore, under paragraph 4 of the Public Enemies Law, would have to be punished. In this case, a penitentiary sentence would have been possible.
Q. Do you know anything as to whether that verdict was changed through a pardon?
A. Yes, Earlier I pointed out that the prosecution, on its own initiative, immediately suggested a pardon when the prosecutor pointed out that Louise Togni possibly did not fully realize the wrongfulness of her action; And I also pointed out that the Special Court did not oppose the pardon plea.
Q. At the end of your affidavit of 3 November you say that Cuhorst, in the manner of conducting a trial, frequently displayed a positively sadistic manner, and that the laws created by the National Socialist leadership of State were applied in an extreme way by Cuhorst. Do you not know, or do you know, concerning instructions from the Reichs Ministry of Justice which had been issued to the prosecution, that the Special Court at Stuttgart, with Cuhorst as the presiding judge, sometimes did not follow those instructions, bat Cuhorst, if one like to put it that way, maintained the independence of his Special Court, in the face of, or in view of the authority of the Reich Ministry of Justice to issue instructions to the public prosecutor?
A. As far as my sphere of activity was concerned, it is correct that Cuhorst, in one case, refused very energetically to carry out the instructions that the Reich Ministry of Justice had sent to the prosecution. What happened was that instead of the suggested penalty of five years in the penitentiary, ten years in the penitentiary and safety custody should have been demanded.
I myself was the expert on the case. Before the session I reported to Cuhorst and told him that such an instruction had been issued to me. Cuhorst rejected that instruction by a very sharp remark, not in the sense as if it affected him, but he expressed the view that that instruction could by no means be considered by the prosecution, nor was the instruction applied. Cuhorst passed a penitentiary sentence of five years, as far as I know. I had to give my own views on the instructions and on the punishment that was passed. I stated that a penitentiary sentence of ten years and custody were out of proportion, and for that reason we asked that the sentence should be confirmed and that a nullity plea should not be suggested. All the same, the nullity plea was suggested and the verdict was squashed.
At the retrial which, as far as I know, took place in Nurnberg, we were concerned with the Herzer case. A sentence of ten years in the penitentiary and safety custody were passed.
Q. Dr. Rimelin, what facts can you relate to us concerning the sadistic manner in which Cuhorst conducted his trials, and with the extreme application of National Socialist laws, from your own sphere of activity and from your own knowledge?
A. Cuhorst's manner of conducting a trial could not be separated, naturally, from his whole manner as such, and Cuhorst had an ironical manner which he frequently displayed at trials. It did happen that he put things to the defendants which were not appropriate in their relation to the offense, and which minimized the gravity of the accusation.
Q. Dr. Rimelin, the phrase "positively sadistic manner"-- what facts can you relate to us concerning that accusation.
A. It is, naturally, impossible to reproduce the actual words, but the picture as a whole which I still have of Cuhorst's manner of conducting a trial does confirm that Cuhorst frequently displayed an ironical attitude towards the defendant which I, from my point of view, could not approve of.
Q. I note that you have told us repeatedly "ironical manner". As to the phrase "sadistic manner", do you want to repeat that now or not?
A. I believe that it is not a far step from irony to sadism if one considers that a defendant is before one and who has to expect a heavy sentence.
Q. Is it not the duty of the prosecution, in the indictment, to bring to the attention of the defendant the possible consequences?
A. The prosecution, in their legal and actual presentation--that is to say, in the structure of the indictment--cannot depart much from the structure of the sentence.
Q. Do you know paragraph, I believe it is paragraph 266 of the Penal Code of Procedure, which gives instructions that the defendant, at the trial, has to have his attention drawn to every and all possible legal points of view?
A. Yes, that is one of the principles.
Q. In your second affidavit you say that the Special Court, with Cuhorst as presiding judge, was out to use, in special cases, war-time legislation, and you mentioned afterwords the law concerning Poles and Jews. Do you know of a case, perhaps from your own sphere of office, where the Special Court, under Cuhorst, tried a Jew?
A. From my own sphere of activity I do not know of any case, but I believe I can say that Cuhorst never tried a Jew, at any rate, not on the basis of the laws mentioned.
Q. Do you wish to correct your affidavit on this point?
A. I believe that that is not necessary, for the Penal Code provision says that. It was called "The Law Concerning Poles and Jews." That is merely the heading of the law, and that is how it must be understood.
Q. Was the Special Court under Cuhorst, just as the prosecution in the indictment, not under an obligation, in cases where the war-time legislation applied, to apply it?
A. Certainly; I believe that that question is known as a matter of course.
Q. Why, then, in your affidavit, did you point out specially that Cuhorst, as presiding judge of the Special Court, was intent, in special cases, to apply the war-time legislation? And after that you refer to the law concerning Poles and Jews.
A. In that sentence I did not want to speak of an exception, but it was merely to explain the general rule.
Q. Did Cuhorst, in your view, apply the law properly or incorrectly?
A. If Cuhorst applied the wartime laws where they had to he applied, and I don't doubt that he did, he naturally acted according to his duty.
THE PRESIDENT: Dr. Mandry, the time has come for the afternoon recess. We will take a fifteen minute recess at this time.
THE MARSHAL: The Tribunal is in recess for fifteen minutes.
(A recess was taken.)
THE MARSHALL: The Tribunal is again in session.
DR. MANDRY: Your Honors, my I proceed?
I shall continue to put questions to you concerning your affidavit of 10 January 1947. What facts can you give us for your statement that Cuhorst who, if I understood you correctly, presided only over throe murder cases against Poles?
A I concluded that from the fact that during the trial against tho two Poles who killed their employer, he presented the skull of the man who was killed to the two Poles. I, personally, was deeply impressed by that. I could only understand that this was possible due to this man's extreme coldness.
Q Is this case a fact, and a fact which made you state that ho was particularly against the Poles?
A That event was so unique, I drow that conclusion.
Q The fact that a smashed skull was submitted as an exhibit in a murder trial where a German was killed was not so impossible, was it?
AAn exhibit of that kind is good where it is necessary to present it in evidence.
Q Don't you consider it possible that in this case, the person who caused the skull to be submitted in this proceeding did that in order to decide the question of murder or manslaughter or any other legal point in order to clarify that question? The fact that this skull or part of the skull was submitted might have been considered if not absolutely necessary, desirable by him.
AAccording to our German Law, the difference between manslaughter sometimes is only a inherent difference, that is to say, it depends on the attitude of the defendant to his victim. I may be able to clarify that by reminding you of the former version of the paragraph dealing with murder according to which intent was necessary to constitute murder. Therefore, if an act has been committed with intent, it was murder. In the case of the two Poles, according to the files and records, there was no doubt about the fact that the act had been committed with due consideration, with due intent because the victim was murdered while he was at work.