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.
Therefore, the fact that the skull was submitted could not have been done in order to explain or to clarify whether the defendants committed murder or manslaughter. I can only believe that Cuhorst demanded the presentation of the skull in order to explain with what force it had been beaten. The entire top of the shall was smashed. It had burst into small pieces possibly. That is what he wanted to show by presenting the skull.
Q In your affidavit, you state, "Cuhorst's manner in conducting proceedings against Poles was just as brutal as in other cases."
A Yes.
Q And that judgment on your part is based on what other facts except those which you have described and told us about? What other facts do you know from your own knowledge?
A That Cuhorst's manner of conducting proceedings was often brutal? I believe I explained it by calling it a sadistic way of conducting proceedings, and naturally, it did not differ in cases against foreigners. Therefore, it is only a repition of a more general judgment.
Q In your affidavit, you state that Cuhorst after the presentation of evidence mot the Prosecutor of t at proceeding?
AAs is well-known, there was a directive from the Reich Ministry of Justice to the Prosecutor, that not only the Reich Ministry of Justice, but also the Court should be informed by them what measure of penalty they had pleaded for. They were supposed to do that in the manner that the Prosecutor would inform the bench what kind of a plea he intended to make after the presentation of evidence. That, of course, also occured in cases where Cuhorst presided. That I have stated explicity in my affidavit. In all cases Cuhorst made it clear that he would act according to his own idea, that is to say, he would in no way be influenced by any such conversation.
Q Does that mean that he tried to maintain the independence of the Tribunal?
A I believe that Cuhorst, based on his own resistance, his own tenacity, which he showed very often, that for that reason alone he wanted to maintain a certain independence and did so.
Q You say in your affidavit also, "We were compelled to bow to his wishes because a deviation of the plea from the final sentence would have caused us a rather serious reproach from higher up."
A Yes.
Q One moment. Was it so that the prosecutor from higher up, that is from the Reich Ministry of Justice, in more important cases received directives concerning the measure of punishment mentioned in his plea, and that the prosecution felt itself bound to these directives, at least generally?
A The prosecution as an administrative office was under obligation, on the basis of general directives, to present to the Reich Ministry of Justice all indictments concerning the special court and to state their intention concerning their plea. The report in such cases read perhaps as follows: "Against so and so, I have submitted the indictment, copy of which is enclosed. I intend to request that and that penalty." If that indictment coincided with the ideas of the Reich ministry of Justice, nothing more happened; no more directives came down. If it didn't, the senior prosecutor, either through the general prosecutor directly, received a directive that by his deputy he should demand the penalty which was prescribed by the decree.
Q What you mean then in your affidavit by saying, "I do not understand why we"--that probably means the prosecutors--"we were compelled to bow to his wishes"?
A That sentence should not express that Cuhorst was the one who prescribed our plea, and the measure of punishment demanded therein, but it has to be read together with the last part of the other sentence, since a deviation of the plea from the sentence would have brought a considerable reproach from higher up.
That is to say, if it was discussed that the court considered the case more severe than the prosecution, it would have come to a cancellation of the verdict, if it could have been seen that the prosecution had pleaded for a more lenient sentence than that expressed in the verdict. It was, therefore, not a compulsion really which Cuhorst influenced upon us; but I merely wanted to express it was a practical necessity in a case of that kind to be of the same opinion as the bench--the court, and to plead for that punishment which the court considered the right one in order to make the sentence valid.
Q Was that a usage or a ruling that was based on directives which were generally practiced, not only in special court proceedings under Cuhorst or other presiding judges, but also in other courts, for instance, the penal chamber or penal senates?
A How it was in the case of the Strafsenat--the penal senate--I cannot say, but I am convinced that the prosecutors at the penal senate also received directives of that kind from the Reich Ministry of Justice as did the prosecutors at the special court and at the penal chamber in cases of that kind where they had to submit indictments.
Q Would you answer the question as to whether the phraseology of this sentence, "We were compelled to bow to his wishes"--whether that could not be misunderstood and therefore should be corrected in the manner which you have described to the Tribunal now.
A I believe-
MR. LA FOLLETTE: Pardon me, witness, please. If Your Honors please, I object to that as calling for a conclusion of the witness in the structural meaning of the sentence. The witness has fully explained what he meant.
THE PRESIDENT; We see no ambiguity of that language and the objection to that will be sustained.
BY DR. MANDRY:
Q Witness, in your affidavit, you state further that you were afraid of Cuhorst because of his high position in the Party, since you were a faithful Catholic and he could have become very dangerous to you.
A I have already stated in the beginning of my examination, that the complaint which Cuhorst had made about me was very disagreeable for me, and I personally suffered extraordinarily from this complaint, and it was not my intention to mix into affairs which were none of my business. But since I had received that answer from Cuhorst, it was of the utmost importance for me to restrain myself in every manner and to prevent a renewed complaint--disciplinary complaint--against myself.
Q That fear, did it express itself in the manner in which the special court under Cuhorst in your opinion came to decisions? Did it have any bad consequences? Was the finding of a just verdict influenced by that?
MR. LA FOLLETTE: Please, witness, don't answer. If Your Honor please, that wasn't the purpose of the question on direct examination and has nothing to do with what Cuhorst might find. It was to establish the fact as to whether this man was afraid. He stated the facts. It's for the Court to determine whether they consider it significant. I didn't ask the man whether it entered into the verdict. I object to the question.
THE PRESIDENT: The objection will be sustained.
BY DR. MANDRY:
Q You referred to the high position in the Party. Did you have to deal with cases yourself where party leaders played an important part?
A No.
Q You gave your affidavits and signed your affidavits on the third of November and the tenth of January in Stuttgart and swore to them. Where was that in Stuttgart?
A My first interrogation took place in the offices of the former military government, in the Weimarstrasse. The second interrogation took place in a private building.
Q And where was that private building? In what street?
A It is in Stuttgart, in a side street of the Olgastrasse, where there is the mail censorship and other American offices.
MR. LA FOLLETTE: I don't know what that indicates, but I believe it is leading. If it is, I object to it.
THE PRESIDENT: We cannot know what it is leading to, but it does no harm.
BY DR. MANDRY:
Q On the basis of these interrogations, which both were conducted by Mr. Einstein, were you informed from the very beginning, that is especially during the first interrogation, what the purpose of your interrogation would be?
A When I -
MR. LA FOLLETTE: Wait a minute; could you give that question back?
INTERPRETER: On the occasion of your interrogations, especially during the first interrogation, were you instructed, were you informed what the purpose of these interrogations would be?
MR. LA FOLLETTE: I object to that your Honor. I don't see that it goes to the probative value; I don't see that it goes to the credibility of this witness, or the value of the affidavit, as to what purpose it was to be used for, or the instructions given.
THE PRESIDENT: Let him answer.
A When I was called, there I did not know for what purpose I had been called, but it was to be assumed that there was a misunderstanding on the part of the German police.
THE PRESIDENT: One moment. You were asked what you were told; what you assumed is not a part of the answer, and isn't responsive to the question.
MR. LA FOLLETTE: I would like to have the question re-read to the witness.
A I wanted to say when I was called there, when I received the summons to go there I did not know for what case I was called, but when I was questioned -
THE PRESIDENT: That answers the question. He was asked whether he was told and he says he was not told.
A I beg your pardon, I was told. I was told the moment-
THE PRESIDENT: The witness now says he was told.
A I was misunderstood before. I wanted to say on the paper which I received from the German police, by which I was called, no reason for the interrogation was given.
However, when I was actually interrogated, it was explained to me that it was an interrogation concerning the case Cuhorst.
BY DR. MANDRY:
Q During this interrogation were you asked about your own denazification proceedings -- how it stood?
MR. LA FOLLETTE: Wait a minute. I hope people smile and have a lot of fun; I am not concerned whether this man went before the Spruchkammer or not, and I don't think that makes any difference. The witness has already testified that he was not in any way coerced or ordered to sign this affidavit. The Court has made a ruling that was conclusive. The only purpose I can see for this question is again to raise the inference of coercion. If the Court wants him to answer, it is all right, but I think we can drag on doing something else besides this.
THE PRESIDENT: The objection will be sustained. He has already gone into that.
BY DR. MANDRY:
Q Witness, didn't you last Wednesday, didn't you call me by telephone in my office in Stuttgart and ask to have an opportunity to speak to me?
A I had found out in the city that I would go to Nurnberg as a witness. At that time, however, I had no summons. Therefore, I was told that I could find out details from the defense counsel of Mr. Cuhorst. Thereupon I called him up in order to find out whether it was true, since on the previous day a notice appeared in the newspapers which included a statement about me. And I also went to see Dr. Mandry and found out from him that my calling as a witness was imminent since the prosecution had requested it.
Q Did I, in a frightening manner, explain to you on the occasion of that visit that I did not want to come into any suspicion of trying to influence a witness?
MR. LA FOLLETTE: If the Court please, I don't charge him with in fluencing the witness.
THE PRESIDENT: At any rate the question is not material, and the objection to it, if made, will be sustained.
MR. LA FOLLETTE: I object, Your Honor, to the charge that the man was doing anything to the witness. As far as I can tell, what the witness has testified to, he hasn't done anything good to him.
THE PRESIDENT: The witness has testified that, he was not coerced and that his statement was a free voluntary statement, and that is as far as we need to go.
BY DR. MANDRY:
Q Didn't you on the occasion of that visit in my office let me understand, make me understand that you desired to supplement your affidavits or to even correct them?
THE PRESIDENT: Whether the witness desired to supplement or correct them or not, whether he said so to counsel is wholly immaterial. If counsel wanted to bring out some supplement to his testimony or to state another matter, that is insofar as it reflects upon the conduct of Cuhorst as a judge, proceed.
BY DR. MANDRY:
Q In your affidavits and during your interrogation, during the examination today, did you have an opportunity to tell the Court everything that you wanted to say about Cuhorst?
THE PRESIDENT: One moment, I believe one third of this Court does not care to hear what everybody has to say about Cuhorst; we are trying this case on the issues. The question is so broad that it isn't of any value whatsoever.
BY DR. MANDRY:
Q Concerning your affidavit, you have stated here in your affidavit that you were a member of the NSDAP and of the SA. Did you have any rank in the SA?
A I was not in the SA, but I was in the SA-Reitersturm, and there because of a fractured skull; and, therefore, I could not do any writing any more; I did administrative work; and in that capacity on an honorary basis I was Obertruppfuehrer; a promotion for Sturmfuehrer was not approved, also on an honorary basis.
Never, however, was I active leader, but it was a purely honorary, administrative function such as other jurists who did not serve actively in the SA also executed it. Apart from that I was in the reserve of the Reitersturm, and I never had any active service since 1937.
Q Witness, in your first affidavit, to which I shall refer again, you mentioned the case Wolf. Did Karl Wolf take over a formerly Jewish owned enterprise?
AAbout the business affairs of the brothers Wolf I don't know anything; it is only known to me that in my native city, my home town, Bad Cannstatt, they had this business; they had a store which I have often passed and from where I knew the name.
Q Do you know the consequences that the case Wolf had before the party court for Cuhorst?
A I only heard in that session, in that meeting, a statement of Cuhorst, allegedly made a statement about a uniform, but what the consequences were as far as Cuhorst was concerned, I do not know, but I could not imagine that -
THE PRESIDENT: One moment, we are not interested in what you imagine. You were asked what you knew and you said you do not know; don't tell us what you imagine.
THE PRESIDENT: It is not what someone would imagine. You were asked whether you know, and you said you did not know. Do not tell what you imagined.
DR. MANDRY: May it please the Tribunal I have concluded my cross examination. I would like to add the statement on my behalf, that I ask to be excused, during the conduct of my cross examination, for some questions which I might have asked, in that I lack experience, so that I have made mistakes.
BY DR. SCHILF: (for defendant Klemm and Mettgenberg):
For my plans, I have two short questions to put to the witness.
Q. Witness, in your second affidavit of 10 January 1947, you spoke about the question that the prosecution before a sentence was pronounced, but at the end of the presentation of the evidence, got in touch with the court. I am referring to the sentence which has already been discussed. May I ask you to look at your affidavit of 10 January 1947, page 6, the third paragraph from the bottom of the page. There you said, "We were compelled to...." and -so-on. You used the term "from higher up", may I ask you to explain to the court what concretely you meant by that term? What you wanted to have understood?
THE PRESIDENT: One moment please. Dr. Schilf, you referred to page 6 of the affidavit of 10 January 1947. The copy which I have has only a page and a little over, so I cannot follow you on that.
DR. SCHILF: I beg your Honor's pardon, I said page-it is page 2.
Q. (Continued) Will you please answer my question?