AFTERNOON SESSION (The hearing reconvened at 1330 hours, 17 April 1947.)
BY DR. BRIEGER:
Q. May I continue with the cross examination? Witness, to begin with, I would like to make a technical request to you. When I ask you a question, please wait a moment before you reply because otherwise it is too difficult for the translators to follow. Wait until the English translation is finished, please.
Witness, you have made detailed comments about various criminal cases and I would like to revert to some of those cases. To begin with, may I hear you on the point as to what were the facts concerning the case where several things had been stolen from the Gauleiter?
A. Milk and Margitay during the time of several weeks had committed about 20 burglaries in Stuttgart. Some of them were committed at night; some of them they did by climbing up walls; among other things, they committed burglary in the house of the former Gauleiter. Before proceedings started before the special Court, the Stuttgart public discussed the burglary in the villa of the Gauleiter a great deal, and it was emphasized in particular that large quantities, particularly of food stuffs and luxury goods, had been taken.
Q. May I interrupt you? Who discussed it and who pointed out that the food had been stolen?
A. If I understood you correctly, you mean who it was at the trial that brought up the subject?
Q. That is correct.
A. As far as I remember, the subject was broached by the presiding judge, but it is possible that another judge was the first to mention the subject. The only thing I remember for certain is that the presiding judge emphasized that rumors which had been spread among the public about the burglary in the villa of the Gauleiter were vast exaggerations and slander.
Q. During the trial, what were the actual facts of the case concerning the objects that had been stolen from the Gauleiter?
A. The trial was very short and the case was discussed very briefly. The two offenders said nothing but that they had only taken small quantities; for the rest, they did not make any detailed statements because they had committed a considerable number of offenses and they did not remember concerning every individual offense what they had actually taken away.
Q. Was it mentioned whether household utensils or objects of that kind were stolen? If I remember correctly, you said previously that they had stolen bicycles elsewhere.
A. That was not in this case.
Q. Were household objects mentioned in this case? did the presiding judge say that a camera had been taken and some laundry, for instance, shirts?
A. That referred to the Gauleiter case, yes.
Q. If I understood you correctly, witness, at the trial no facts were established as to whether food supplies on a large scale were stolen from the Gauleiter?
A. That was not established at that trial.
Q. Do you believe that in virtue of the facts, it was altogether irrelevant when the presiding judge said it was only a rumor that at the Gauleiter's there were large quantities of food, and that there was no cause to assume that?
A. These remarks--as to their contents--correspond with what was the result of the trial; but what was actually stolen, I could not know because I was only a member of the audience at the trial. Like everybody else who was in the audience at the trial, I had to assume that the testimony of the two defendants was correct, although I did not realize as to why people should be interested in saying that they had stolen things, even where they had actually stolen them but were not charged so. But if these things were not charged to them, why should they say so at the moment? I cannot say for a fact that large quantities of food were at the Gauleiter's house. I can only tell you here the things that were discussed among the public at Stuttgart, and those remarks in part, anyhow, were made by police officials. As to how far that corresponded to the facts, I am unable to judge.
Q. Would you not assume, witness, that a judge is under the obligation at the trial concerning a rumor which has not been substantiated--would he not repel such a rumor if the rumor concerns the Gauleiter as the highest authority in the country?
A. In my view, there was no need for a direct denial. He could have restricted himself to establishing at the trial that the offenders had admitted that they had stolen this object or the other, and I believe that only because the Gauleiter was the person from whom these things had been stolen that it was only because of that the subject was mentioned at such brief proceedings.
Q. In view of the fact that there had been a great interest on your part in Cuhorst and that you had information about him, did not because of that the thought enter your mind that Cuhorst did make the remark because he did not wish to promote the tension which was between him and the Gauleiter any further?
A. Concerning any tension between Cuhorst and the Gauleiter, I know nothing. I assumed that he, in his capacity as the highest judge of the Special Court, wished to correct matters in the way which had resulted from the trial; which purpose he had in mind, I did not know at the time. I assumed at the time that he wished to protect the Gauleiter from such reproaches, the correctness of which I could not prove at the time.
Q. Witness, I wish to be brief about this particular case, but I would like to hear from you, who was the judge who reported on the case?
A. I do not know the reporting judge.
Q. Do you still remember the name of the defense counsel?
A. It was the attorney-at-law, Dr. Ruisinger from Stuttgart.
Q. Concerning, this case, did the investigating judge submit files or other documents to you?
A. I did not receive written documents on that case from any quarter.
Q. Briefly, I would like to come to the Oehlbach case. Who was the defense counsel?
A. The trial was held in Sigmaringen, and I therefore do not know the name of tie defense counsel because I wasn't there.
Q. Who was the judge who prepared the case?
A. Landgerichtsrat and Later Overlandesgerichtsrat Atzendorfer--unless I am wrong.
Q. Do you remember the facts in the case in Sigmaringen?
A. Certainly.
Q. Can you give us an account of them?
A. Oehlbach had contacts with furniture firms, and unless I am wrong he, himself, represented a furniture firm. According to the indictment, he made offers to a number of girls and women to supply furniture to them and took part payments, and then, according to the indictment, did not carry out the orders.
Q. Why was that refuted?
A. I never considered it refuted, but I thought that the defendant Oehlbach, who was sick on his bed in his cell, told me, while I was taking down a record, that on account of his bad health he had fainted several times during the trial and had for quite a while lain in a faint on a stretcher, and had consequently been unable, concerning the statements by the prosecution's witness, to dispute them, and if necessary to make the necessary replies.
Q. Do you know, witness, whether before the trial the prison doctor was heard on the state of health of the defendant?
A. I don't know anything about that because, as I mentioned before, the trial was held at Sigmaringen. I was not present.
Q. If I understood you correctly, witness, you submitted the pardon plea for the defendant?
A. No, it was a plea for the trial to be resumed.
Q. It was that, quite correct. In that case, I may assume that the facts of the interrogation were discussed by you in detail, all the more so as a wrong had been done, according to you.
A. Yes. This case, as far as the defendant was able to report to me after the trial, he did tell me about that, but the essential part of his report was, he explained to me, that he could not tell me his views on such and such a point because at the trial he had not heard what the prosecution's witness had said against him. In any case, he disputed the evidence which the prosecution had mentioned as the testimony of the witness concerned.
Q. Witness, do you know anything, and I assume you do, in your official capacity you dealt with the case in detail; do you know anything about the previous convictions of the defendant?
A. I know that Oehlbach had several previous convictions; as to the number in the penitentiary, I don't know anything about them.
Q. Do you know; do you remember why he had previous convictions?
A. I remember among other things, as far as I know he had been punished for the matchmaker; that he also had other previous convictions I believe.
MR. LaFOLLETTE: I didn't quite understand the answer about the matchmaker; who made the match? I am satisfied; I have no objection.
Q. Do you remember that he had received a long penitentiary sentence?
A. I believe that his punishment to which I referred before, matchmaking, all I remember now it was something in the way of sexual crimes; whether it was a penitentiary sentence and how long before the other cases under discussion had been committed, I don't remember.
Q. Do you remember that prior to the trial he had attempted to commit suicide, but that it was unsuccessful ----correction, that he had made an attempt to escape?
A. Yes, I do know that be bad tried to escape, and also that he had tried to commit suicide by hanging; I also know that after that attempt had failed he started on a hunger strike.
Q. Witness, now that you have made such a detailed statements on these matters, would you all the same say that the suspicion of the presiding judge was altogether wrong to the effect that the witness would once again try to avoid being held at a trial by simulating a faint.
A. As far as I am concerned, it did not interest me as to whether the presiding judge had such suspicions or not because I was of the opinion that if in a case the death penalty is after all within the framework of the probable and possible question as to whether the defendant can be heard or not is of decisive importance; and since the defendant, after all, as the public prosecutor at the trial told me, had to be taken to the court room on a stretcher, in my view it was more likely that the man was not able to stand his trial trial to assume that he only wished to a void standing his trial by simulating a faint.
Q. Would you assume, witness, that it was the first time, so to speak, an institution which was created by Cuhorst, that for the first time a man was tried on a stretcher?
A. The matter of the stretcher, as such, is not decisive, but Cuhorst in another case too, of which I know, it is the Paetzold case, had fainted; he was tried by Cuhorst, so I assumed at the time that Cuhorst was definitely out at this trial which was being held away from Stuttgart to finish the trial the very same day.
Q. Witness, just now you mentioned the Paetzold case. May I ask you to state who was the reporter on the case?
A. I only know the name of the prosecutor, Amtsgerrichtsrat Schnabel.
Q. Was that trial hold in Stuttgart?
A. Yes, it was held in Stuttgart.
Q. What year?
A. The trial was held in 1943.
Q. Witness, thank you; that is sufficient for me for the Oehlbach case. I will now discuss the Pitra case briefly. If I understood you correctly, they were concerned with a young man of eighteen who was charged with having entertained relations with a German woman, being a Polo himself; and who under Cuhorst as a presiding judge was sentenced to death. If I remember correctly, you said that he was not executed.
A. No, according to the list which I made from the notes from the prison, Pitra was afterwards sentenced to eight years in a labor camp, and I do not know whether he was pardoned, or whether another nullity plea and a new trial preceded this.
Q. Witness, do you know anything about Cuhorst's attitude to the pardon?
A. No, I know nothing about that. I never saw his opinion on pardon pleas.
Q. Witness, do you know that on account of tho regulations even in force at that time, in the case of every pardon, the judge who had passed the sentence had to be asked about his views?
A. Yes, I do know that.
Q. But you don't know what opinion Cuhorst gave on the matter?
A. No.
Q. Witness, were you present at the interrogation?
A. I was present at the interrogation of Pitra.
Q. Were you present when the sentence was pronounced?
A. Yes, I was present then too.
Q. As you were so interested in that case, may I ask you to make some detailed comments as to what Cuhorst, as the presiding judge, had to say about the punishment award?
A. After all of these years it is naturally impossible for me concerning tho reasons for the sentences which Cuhorst gave orally to give any details because what was decisive for every member at that time was naturally the verdicts. As to what was said in tho reasons for that Verdict, I know nothing. All I remember is that it was established that the defendant was guilty within tho meaning of the indictment.
Q. Witness, do you remember what happened, that is first of all, to the woman whom you, yourself, said that she had made far-reaching advances to the young Pole; made it appear; made far-reaching advances towards him; that at the last moment she changed her mind and said that the Pole made the assault, and that in fact he raped her?
A. I know nothing about that. All I know, as I said this morning, that at the trial it was shown without any ambiguity that the woman late in the evening had entered the room of the Pole.
Q. I believe you have already given your views about the judge. I would like now to discuss a different case. It is the Gipsy case.
A. Eckstein.
Q. Just a moment, who was the Gipsy?
A. Eckstein.
Q. Witness, today you said that several persons were in the dock in that case?
A. Yes.
Q. Who was in the dock?
A. As far as I remember, Eckstein.
Q. What was his age?
A. Forty-three.
Q. What was his nationality?
A. His nationality, probably German, but in any case no Gipsy.
Q. Who else was in the dock?
A. Winter.
Q. How old was the gipsy Winter?
A. About twenty years old.
Q. Who else was in the dock?
A. Another defendant, Coehler, as I remember the name; if I remember the name correctly, he was a great deal younger.
Q. What was Koehler's age?
A. About seventeen; I remember that at the time the indictment was written up he was sixteen.
Q. Was he a gipsy, or not?
A. He was a gipsy.
Q. And what was his name; you said he was a gipsy.
A. I think it was Koehler.
Q. As you were so interested in that case, I may proceed for certain from the assumption that you remember the case today, and that you remember the punishment Cuhorst sentenced him to.
A. I think it was a prison sentence, but as to how long I can't tell you that now.
Q. Witness, you described as extermination methods the attitude of the defendant Cuhorst in the Winter case. May I ask you now whether you, even from your point of view, wouldn't consider it inconsistent on the part of the defendant that he left the youngest gipsy alive?
A. No, I would not consider that inconsistent for the reason that the third defendant played a minor part and also because the court on no account was able to pass a death sentence. During the trial Eckstein was described as similar to a gipsy because he together with the gipsies had been roving around the country and had worked in different places, and than had changed places of work, and always in the company of gipsies.
Q. Witness, you, yourself, are a lawyer; can you tell me whether you would consider it favorable or unfavorable that a man of German nationality roves around the country with gipsies.
A. What certainly is not customary.
MR. LAFOLLETTE: If the Court please, I object on the grounds that is irrelevant; it certainly h s nothing to do with this case.
THE PRESIDENTL Objection sustained.
Q. May I ask you for the name of the judge who prepared the case?
A. As far as I remember that was Landgerichtsrat Dr. Atzendorfer.
Q. Witness, concerning the views I have already been told by you, I am gratified at the replies I have already received from you. How, I would like to discuss things of a more general nature. May I now begin with what documents did you submit to the prosecution which previously had been in your possession?
A. I gave the prosecution a number of indictments and sentences which I don't remember now in detail. All I know is that, for example, the indictment in the Behlbach case was among then; the other documents, I don't remember.
Q. Witness, may I ask you to think this over and say whether among the cases, whether some of the cases you mentioned today are among them?
A. For example, the Grassmann indictment, as far as I remember, I handed that over too. At the moment I cannot remember any others.
Q. Did you hand over any documents in the Lecsinsky case?
A. No.
Q. Were you a witness of those cases?
A. Yes.
Q. Who was the presiding judge?
A. I do not remember.
Q. Who was the defense counsel?
A. I do not remember.
Q. The public prosecutor?
A. As far as I remember, Dr. Rimelin.
Q. In the case Grasaman, did you give the prosecution any documents?
A. It is possible that I gave them the indictment, and the verdict. I did have both in my possession at the time.
Q. Did you hand over your diary?
A. No.
Q. Any copies of your diary?
A. No.
Q. You mentioned one Dr. Wagner as an associate judge in connection with the penal case, I cannot remember at the moment which, and you said that there had been a rumor to the effect that Wagner had been transferred from the Special Court because he had voted differently than Cuhorst?
A. Immediately after the transfer of Landgerichtsrat Dr. Wagner to the local court, which came as a surprise to everybody, that was the rumor which was being discussed among all colleagues. I was told about it directly by those colleagues who were personally friends of Wagner.
Q. What was the name of that colleague?
A. The present Chief Public Prosecutor, Dr. Mueller, also the attorney at law, Diessem.
Q. Do you know that Landgerichtsrat Dr. Wagner had difficulties with other presiding judges of the district court?
A. I know nothing about that because at the time when Landgerichtsrat Dr. Wagner worked at the penal chamber I was not in Stuttgart.
Q. Do you know in particular that other presiding judges, too, were of the opinion that he frequently put questions during the trial which did not touch the essence of the matter, and that he put questions very frequently which made it very tiring for all those at the trial?
MR. LaFOLLETTE: I object your Honor --
DR. BRIEGER: (Interposing) I withdraw the question.
Q. Witness, I should now like briefly to discuss the affidavit, and I only wish to take up a few points. Witness, in one passage of your affidavit you said, "Until then I had no knowledge of the existence of the so-called Special Courts." That was in 1941, if I understood you correctly. This is for my own information: Again, how far had you progressed in your professional training at the time?
A. In 1941 I passed my first examination, and at that time I was a soldier -- correction, at that time I had spent six to eight months at my preparatory service at a small local court outside of Stuttgart.
Q. During your first state examination you did not assume that you might be asked questions concerning the Special Courts. As you also in your affidavit say, that these Special Courts were of outstanding importance within the field of administration of penal justice.
MR. LaFOLLETTE: I object, your Honor, purely for the fact that the witness said that he did not know anything about the Special Court until he got there. What he might have assumed, and what he would have been asked upon his first examination, I do not believe, effects his credibility, certainly it does not go in for any other purpose that I can sea.
DR. BRIEGER: Your Honor, in this case I am not interested in attacking the credibility of the witness, but I am interested in emphasizing that the knowledge of the witness within the field of the administration of penal jurisdiction was more than modest.
It is about the same as an American lawyer, if he were to tell me that all his life he had not heard of the grand session court.
MR. LaFOLLETTE: I think that is all right, but I still do not believe, it goes to any issue on the direct examination. The witness has testified that he did not know about the Special Court. I think he testified that his opinion about what was done at Stuttgart arose from the facts rather than from the law. Now, the mere fact that he might not have known about it or might not have studied about-- I simply do not see that it adds in any way to the defense case. It does not affect his credibility nor does it go into anything pertinent.
DR. BRIEGER: I do not intend, your Honor, to put further questions in this connection. What the witness has told me so far, from that angle is sufficient for me.
Q. Witness, you say that Cuhorst's views on the administration of justice, for that attitude, it was typical that even in the case of -- difficult cases, he conducted the trial on the basis of the indictment received from the prosecution and that evidently it should have been his duty -- he had not read all the files?
A. Yes.
Q. May I know, Witness, what law or what official position makes it obligatory for the presiding judge of a penal court to study the files?
A. In my view, and according to my knowledge, that does not arise from a law or from an official provision, but it is obviously from the physical concept, the duties of a judge. My knowledge on this case is obtained from conversations with former public prosecutors, and they would say, sometimes the indictments were as thick as a volume and very detailed, and when Cuhorst asked them about, they said they had to do it because the presiding judge, Cuhorst, had the habit of not studying the files; and, unless they made the indictment so detailed, a whole series of points would never be approached at the trial.
Q. Witness, I think that is material. It seems to me, I can assume now that Cuhorst, when counted on the prosecution to write up such indictments, so that not one single point of importance should be left out -
A. That is one way of interpreting the matter, but there is also another interpretation just as possible; and that is, that the prosecutors, and under the German code of procedure, particularly before the Special Courts, did not always look at the matter from the objective point of view.
Q. Witness, we will not argue about the various interpretations. We will have an opportunity to argue with the experienced lawyers and high ranking judges. Witness, it also struck me, in this sentence, the word "typical", It was typical. When using the word typical, does that not make it necessary to have a detailed knowledge of the man, that has known him for years, to know how he behaves?
A. I believe, to recognize his manner, one did not need to have known him for years. Anybody who had watched twenty cases, which were all conducted in the same manner, anybody who had done that, could, in my view, form his own judgement.
Q. Witness, one thing more, I just remember it now and perhaps I can put it in now. In the second case you said that the two defendants had said that they had not been previously convicted only because the provisions of the German penal code were entirely different from that of the American; and because of that, may I ask you did the defendants make this statement before the court under oath or did they not make it under oath?
MR. LaFOLLETTE: I beg your pardon, I thought you asked about some specific defendant. Were you asking about any defendant?
Q. Was that the Milk case?
A. Yes, that was the case.
Q. I would like to know in this case if the defendant made the statement under oath or not?
A. They did not make the statement under oath.
Q. Thank you, I just wanted to establish that. Witness, in your affidavit you said that you know of a case where Cuhorst before the trial had started, concerning the defense counsel, Dr. Ruesinger in Stuttgart, and he had asked them to come to his own room and told there that the two defendants whom Dr. Ruesinger was defending would be sentenced to death by him and that he would not allow therefore Dr. Ruesinger to make any lengthy statement nor were they desirable.
Q. May I ask you what case?
A. That was the Milk-Margitay case.
Q. Who was the presiding judge?
A. Presumably Dr. Atzendorfer.
Q. Did you think it usual or unusual that a judge before the opening of a trial or at the trial tells the defense counsel that a death sentence is possible?
A. You weakened your statement now and put it quite differently from the way I put it myself. I remember perfectly clearly exactly what happened. The case was held at the Oberlandesgerichtgobaeude at Room 149. I was outside the courtroom. Therefore Reisinger, who is hardly older than I and with whom I had a certain amount of personal contact, came out of the judge's room. He was rather excited and said to me that Cuhorst had just told him that the Milk and Margitay case was quite clear. It would end in a death sentence and he could save himself any lengthy statements. At that time I told Reisinger in the circumstances of his defense, don't go in but Dr. Reisinger replied that he had to go in because he was a defense counsel appointed by the Court. What happened -- a thing which I would not consider unusual was not that the judge said that a death sentence was possible but what happened was the Presiding Judge said a death sentence would be passed and consequently the defense counsel could save himself making any lengthy statements on the sentence.
Q. Do you remember, witness, whether it was a case where the death sentence was mandatory?
A. No, it wasn't mandatory; if one would assume that the offense had been committed under the public enemy law, a penitentiary sentence could have been given.
Q. Witness, do you remember whether the defendants admitted their offenses?
A. The defendants confessed on all accounts.
Q. Witness, had you considered it possible that the Presiding Judge would pass the death sentence because he considered it the proper sentence? Witness, I should like to repeat my question. Witness, did you count on the possibility that Cuhorst on account of the fact that complete confessions had been deposited would pass the death sentence in order to afterwards work for a pardon?
MR. LaFOLLETTE: I object, your Honor, there is nothing in the witness's testimony that would justify this assumption. It calls for an assumption as to what was in the mind of the defendant and there's nothing in his direct examination in my opinion -- this question in any way that affects or reaches nor does it affect the credibility of the witness. It calls for a conclusion as to a state of mind of the defendant, as I see it.
DR. BRIEGER: Before the Tribunal gives its view may I point out that in this passage of the affidavit the witness was not satisfied in stating facts but to a considerable extent also expressed a judgment of the case, a judgment of the part that Cuhorst particularly played. Therefore, I put ay question so as to give the witness an opportunity to re-examine his judgment of the time and put it to him and to confront him with a factor which probably had not occurred to him before.
MR. LaFOLLETTE: I withdraw the objection.
DR. BRIEGER: Thank you very much.
MR. LaFOLLETTE: I don't know whether he remembered it now. Ask him if he remembers the question.
DR. BRIEGER: Would you answer the question? Do you remember the question that Mr. LaFollette drew my attention to?