May I ask you to give us an account of that conversation?
A. That conversation took place exactly seven years after I had assumed that office. This second conversation took place on 13 September 1944, and it took place in the street, outside the courthouse in Stuttgart, which was on fire. The building was almost completely burned out during that night. The Chief President, Dr. Kuestner, took me aside and told me that he had to tell me something very unpleasant. That, in view of the circumstances, seemed somewhat peculiar to me. He then told me that only the previous day, probably at the last letter from the Ministry, quite unexpectedly, he had received the information that I was to go to the Armed Forces. He asked me whether I knew what was the matter. I told him that I did not know what was the matter. Then he said to me, "You must have good friends in Berlin." My answer was, "I have known that for a long time. I am glad that I am getting rid of the Special Court in a decent way."
Q. If your Chief President used that expression "good friends in Berlin", I suppose I understand you correctly when I assume that you mean to say that he used that phrase ironically?
A. Yes, naturally he was using that term ironically, and he was referring to men who were not mentioned in the letter from the Ministry of Justice. However, I should like to add that the Chief President at that time knew as little about those events as I did, such as we can now see them from the files.
Q In this connection it seems important to me to ask, what was your military status in the summer of 1944?
A Since September of 1943, I was out of service as a reserve officer with the army; that is to say, I was no longer obliged to do military service and the armed forces would never again have called me up for service. That is evident from an entry in my military pass, which I hold in my possession. The Ministry knew nothing about that.
Q In connection with the events which you have described, do you mean to say by that that you went to the Armed Forces at that initiative of the Reich Ministry of Justice?
A Naturally it could only have been the Reich Ministry of Justice, Dr. Thierack, who had had the idea to remove me from my office as a judge by pushing me out and sending me to the Armed Forces. As for the total was effort, such removal from my office as a judge was not necessary for that total effort. The Armed Forces themselves were highly embarrassed as to how they were to employ me. I was only a lieutenant, and of course I was over age.
Q If I am properly informed, in the course of the year 1940 you had once before been called up for service with the armed forces?
A In March of 1940 I was called up, and I had already left my office. Without my knowledge, and against my will, the President of the District Court of Appeal, at the last moment before I left to join the Army, had placed me on the list of indispensible staff. According to the previsions in force, I had to resume my office as a judge.
Q Did you go to the Armed forces immediately after that conversation, or was it later? If I understood you correctly, you said immediately afterwards.
A No, no Doctor. I joined the Armed Forces on the 30th of November 1944, that can be seen from my military pay book, and I have that in the pocket of my uniform coat.
It was like this:
The President of the District Court of Appeal delayed my callup because, since the courthouse had been destroyed in an air raid, in order to restore the files, I was indispensible for putting the files in order again. Approximately at the end of October there was a telephone query from the Ministry of Justice to the Chief President asking whether I had not left yet. That query from the Ministry was apparently so violent that my Chief President no longer dared to delay my call-up any further. I myself was only interested in joining the Armed Forces as quickly as possible.
Q Witness, I am now going over to an entirely different group of questions. I now want to ask you questions concerning the organization of courts. My first question is this. What geographical area was covered by the area of the District Court of Appeal in Stuttgart?
A The District Court of Appeal of Stuttgart, and thus also the Special Court of Stuttgart, covered the Laender Wuerttemberg and Hohenzollern. That latter, however, was part of Prussia. The population of the area amounted to three million, or exactly 2.97 million. That was according to the latest census.
Q Was the area of the Penal Senat identical with the area of the Special Court?
A The two Penal Senats--that is to say, Senat I and Senat II-were competent in cases of high treason and treason in the District Court of Appeal area of Stuttgart, Karlsruhe, Kaiserlautern, and some courts in the area of toher district courts of appeal. The population of that area amounted to somewhere between seven and eight million.
I repeat, I myself was the presiding judge of the First Penal Senat, and Dr. Kiefer was the presiding judge of the Second Penal Senat. He had come to us at Stuttgart from the District Court of Appeals at Karlsruhe.
Q What were the competencies of the Penal Senat and the Special Court? What were their competencies under the Judicature Act?
A I should like to answer you second question first. Both courts--that is to say, the Penal Senate and the Special Court--were purely Kollegial courts, Kollegial Gerichte.
That is to say until 1940 the Penal Senat had five judges, and three judges worked at the Special Court. The competency of the Penal Senats in general included high treason and treason, appeals concerning decisions made by district courts and local courts. Those senats further dealt with cases of extradition, that is to say, extradition of criminals in virtue of the existing international treaties, to foreign countries. From 1943, as we know, the cases of underlining of military morale were also dealt with by the Special Courts, but the gentlemen from the People's Court have already discussed that matter in detail. The competency of the Special Courts changed. That has been discussed here in the main. In the political sphere they dealt mainly with offenses against the Malicious Acts Law, radio offenses, and some more unimportant offenses. In the non-political sphere, in my time, we dealt with all capital crimes at the Special Court, that is to say, murder, masnlaughter, arson, crimes against the Explosive Act, economic offenses, and other crimes, were also largely under the competency of the Special Courts dealt with habitual criminals, violent criminals, public enemies, as, for example, criminals who had exploited the blackout, looters, and people who had committed robberies on railways.
Q At what court did you hold your main function, and at what court did you work in your secondary function?
AAs Senat President I worked for the District Court of Appeal, and that was my main office. There I was the presiding judge of the First Senat at the District Court of Appeal. My secondary office was that of a member of the District Court and, as such, presiding judge of the Special Court.
As I pointed out at the beginning, I was appointed by the Presidium of the District Court, that is to say, by the Committee of Senior Judges of the District Court who were still functioning at that time. The members of the Presidium were appointed under the Judicature Act.
In order to avoid all misunderstanding, I should like to say that the Presidium of the District Court, soon afterwards, abandoned its functions and the presiding judges and members of the Special Court, after that, were all appointed by the President of the District Court of Appeal.
Q Witness, I would ask you to speak a little more slowly. I see that it is difficult for the interpreter to follow you.
After 1937, did both courts still have the same competency?
AAs I have already indicated, the competency of the Penal Senate at the district Court of Appeal as from January 1943 also included cases of undermining military morale. The competency of the Special Court was always changing. The strain on the Special Court got worse, accordingly, and became unbearable. The of the Special Court shifted towards dealing with cases of general criminality. The political cases in the years '42-'43, according to their extent, amounted to at the utmost 20% of all the cases dealt with.
Q What was the amount of work with which the two courts dealt? On the basis of those files can you give us same statistic details? Do you need any more documents?
A Concerning the cases which have been submitted by the Prosecution and which will be submitted, of all those documents I have gathered about 100 file numbers. For the years '42-'43 and the time from the first of January until the first of October 1944 I can establish that the following number of cases have been dealt with, and I can base myself on statistical certainty. The number of cases dealt with by the Penal Senate in 1942 amounted to dealing with 100 defendants.
THE PRESIDENT: You mean your Penal Senate No, 1, or do you mean both?
THE WITNESS: I am referring to the First Penal Senate, Your Honor. The Second Penal Senate also dealt with 100 cases. I simply haved the figures which I found. There th First Penal Senate dealt with 100 defendants. In '43, 120, and in the nine months of 1944, with 150 defendants. I should like to say that during the last three months of 1944 on account of the many cases which were transferred to us by the People's Court the figure rose considerably. I no longer dealt with that. And now I am coming to the number of cases which were dealt with by the Special Court. In 1942 I established the figure 933 defendants;
In the year 1943, 700; and in the nine months of 1944 there were 460. That's makes a total, that is to say, District Court of Appeal and Special Court for the year 1942,1, 030 defendants; in the year 1943, 820, and in the nine months of 1944, 6l0. I estimate from those three years and from my general knowledge of the work we had to do that the two courts during the time from the first of July, 1937, until the first of October, 1944, tried about 5,600 defendants. As I conducted the trails of the District Court of Appeals almost exclusively alone without asking the other presiding judges to conduct any trial, and as at the Special Court I tried nearly half of all cases myself, under my presidency during the seven years about 3,000 defendants were tried, and under the presidency of the various deputies approximately 2,600 defendants were tried. It was in accordance with the usage of German courts that the deputy presidents and the most senior of the associate judges frequently acted as presiding judges; the deputy presidents for the very reason that they were all high judges and the associate judges for the reasons that they had to be given the opportunity before their promotion to get practice in acting as presiding judges.
BY DR. BRIEGER:
Q Witness, the witness Doebig in the session before this Tribunal on 9 April 1947--1 shall later refer to the passages in the transcript-asserted that it seamed peculiar to a German judge that a German court should have been bound by the decision of the Supreme Reich Court. Will you please comment on that statement?
A During the time I was training as Referendar in 1923 my superior, who was training me, told me that according to theory, Referendar, you need not adhere like a slave to the de cisions of the Supreme Reich Court.
In practice, however, it is different. The egg must not be more clever than the hen. I should like to add, the authority of the Supreme Reich Court has for generations been such that no expert can say that the opinion of the Supreme Reich Court were applied far beyond the mere individual case. That, I believe, for example, the presiding judge of the Sixth Penal Senat of the Reich Penal Court, Senate President Doebig, I believe wanted to say who decided about many cases which had been tried by a Special Court.
Q Did you as a judge have anything to do with legislation or administration of justice?
A No.
Q Did you as a judge have anything to do with prosecution?
A No, as the judge cannot be a prosecutor.
Q If I understood you correctly, Witness, You had nothing to do with instituting penal proceedings?
A No. That was the task for the Prosecution.
Q Did you have anything to do with the execution of punishment?
A No. That, too, was a matter for the Administration of Justice.
Q What spheres of general criminality were dealt with at the Special Court? You have already said something about that.
AAs I have already stated, the Special Court had to deal with almost all fields of criminality. Already in 1937 the jury courts and the penal chambers, only in exceptional cases tried any grave offenses. Murder already in 1937 was in principle dealt with by the Special Courts. For the rest, the Special Court was a specialized court to deal with profiteers and black market operators, and therefore the judges who worked there were the best criminologists.
However, that is true only for the area of the District Court of Appeal at Stuttgart. I cannot say anything about the other Special Courts.
Q Did. the Penal Senate also deal with special cases in the second instance?
A No.
Q Why already before 1937 was it the Court of Assizes which tried many serious offenses, even before 1937?
A We had Courts of Assizes until 1939, but in Stuttgart already in 1937 crimes where it was possible that the death sentence might be pronounced were, without exception, tried by the Special Court. May I say here that as early as 1938 I tried quite a number of murder cases at the Special Court.
Q Witness, before I start on the next question, before you answer it please give the translator a chance to finish the question before you answer. From 1937 to 1944 did other courts than the Special Court in Stuttgart deal with capital crimes?
A No. I should like to say, more precisely, that from 1937 to 1944, death sentences in the area of Stuttgart, apart from the Penal Senate, were never passed by the penal chambers or other Courts, but only by the Special Court. The opinion voiced by the Witness Diessem who said that the Penal Chambers were not quite so much out for blood and were not quite so tame vis-a-vis higher authorities, that is erroneous. For as long as I can remember conditions as they were in Stuttgart as far back as my childhood, no penal chamber ever passed the death sentence. Naturally, the defense counsel know that, too.
THE PRESIDENT: I don't get that answer. I merely didn't understand you. Do you mean to say that the penal chamber, the First Penal Chamber, while you were a judge presiding on that chamber, never pronounced a death sentence?
THE WITNESS: Your Honor , I was speaking of the penal chambers and the Special Court. The penal chambers were the criminal senates of the District Courts.
THE PRESIDENT: I understood that, but you didn't mean to say that the penal chamber of which you were the presiding judge never pronounced a death sentence?
THE WITNESS: Your Honor, I was never the presiding judge of a penal chamber. I was the presiding judge of the Special Court.
THE PRESIDENT: The First Penal Senate is what I meant to say.
THE WITNESS: The Penal Senate is the Penal Court of the District Court of Appeal--the penal division of the District Court of Appeal. The peacetime organization was this --at the District Court of Appeal there are the penal senates, and at the District Court there are the penal chambers, or , for serious offenses, the Court of Assizes.
THE PRESIDENT: I thought I understood you to say, and I think I misunderstood you, that the Penal Senate of the District Court of Appeals didn't pronounce any death sentences. You didn't mean to say that?
THE WITNESS: No.
THE PRESIDENT: No, you were speaking of the Strafkammer?
THE WITNESS: Yes. It was only the penal chambers that never passed death sentences.
THE PRESIDENT: We will take fifteen minute recess.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
BY DR. BRIEGER:
Q Witness, look at the so-called death sentence list. I am referring to Exhibit 253, No. NG-398, Volume III-L. As you remember, the list was submitted by the witness Schwarz to the Tribunal. Is this list correct and complete in regard to all the cases enumerated in the list? Were you presiding judge yourself?
A The list, Exhibit 253, NG-398, I have in front of me. The list contains a large number of mistakes. For example, I want to point out the following mistakes, that in accordance with the numbers which are pointed out on the list, for example, it is impossible that numbers 1, 2, 3 happened on the 24 of April 1942-- that is, that they were received on that day. The execution occurred already on the 6th of April in Case 4--that the execution occurred on the 14th already. In case 4, that is the case Guertel, the transfer was not on the 34th of April but much earlier, for the sentence is of the 4th of March. Cases 8 and 9, Ludwig Lukes and Michael Mazal, were not Special Court Cases but People' Court cares. In the trial of those two Cases, I was present for a short time myself. Case No. 14, Stanislaus Pietra, was not a case that resulted in a death sentence. Case 21, Eduard Wocinak, was not a death sentence case. The Krupa case, No. 29, was not arson, but as the witness Rimelin testified here a case of murder.
The cases No. 49 and 50, Namely Jaroslav March and Karl Skop, were again cases that were tried before the People's Court, and they were tried in Stuttgart. Documents about this shall be submitted later on. The Skowron case, No. 82, was not tried on the 13 of July 1943 but already on the 9 of June 1943. On this occasion, I would like to say that the dates of the submission of the death sentence is, in almost all cases, the same as the date of the pronouncing of the sentence. Furthermore, only as an example, I cite that the case No. 90, Heinrich Feherens, Was tried not by the Special Court but by the Second Penal Senate, the Special Court was never competent for cases of high treason.
The some in the case in case No. 94, Jacob Welcker; and case No. 102, also that is also the same in the Adolf Geist case, the undermining of military morale. This, too, is a case of the Second Penal Senate.
The commentary which the witness Schwarz gave regarding the question of the presiding judge is incorrect in many cases, as will become apparent in the course of the submission of evidence. With all the means at my disposal here, I have evaluated this list of death sentences and have found out that of the cases tried before the Special Court, which are contained in this list, 37 are death sentences which were pronounced when I was presiding judge. Of the cases tried before the Penal Senate, there are 7. Those cases which were tried while I was not presiding judge are of the Special Court cases, 42; and in addition, those 8 cases of the People's Court, the Second Senate, and one case before the Reich Supreme Court, Supposedly case No. 2 H Schoflansch, which will be discussed later on.
Q May I ask some intermediate questions here? Before you mentioned that the date of the submission, which appears on this list, in almost all cases is the same as the day of the sentencing. Do you differentiate here between Stuttgart cases--that is those cases where the sentence was pronounce. in Stuttgart, and cases in other places, because that will become important in connection with a later question?
A I looked at the list extensively-
Q Witness, may I ask you to be quiet for a moment. May I tell the Tribunal that the defendant Schlegelberger is not feeling well at the moment.
THE PRESIDENT: He may be assisted from the courtroom. The defendant Schlegelberger will be excused for the balance of the day.
I assume that that is in accordance with the request of his counsel. If I am in error in that, I may be informed later.
DR. BRIHIER: May I ask the witness to continue!
BY DR. BRIEGER.
Q Do you still remember my question, witness!
A Yes, I do, I have examined the list extensively and have discovered that the witness Schwarz, in the case of trials which took place in Stuttgart, almost without exception listed as the day of sub-mission the day of the sentence in this list. These defendants who were tried in Stuttgart in general had already for some time been in the prison for investigation. In the cases out of town, the witness Schwarz gave the day of sending these people into prison, also listed the day of the pronouncing of the sentence because there was an ordinance issued by the Ministry that those who had been sentenced to death out of town should be brought in to the prison of the place of execution--that is in Stuttgart. In some cases, as I have already mentioned, especially in cases which are before the time that the witness Schwarz was active in Stuttgart, the witness Schwarz gave a collective date as the date that the defendants were brought in to prison, as in the cases 1 to 12, 24 of April 1942.
Q Then you were speaking of the fact that in one case, the sentence was pronounced by the Second Penal Senate. Please inform the Tribunal whether you were over presiding judge in the Second Penal Senate or belonged to the Second Penal Senate as an associate judge.
A No, I belonged neither as presiding judge nor as an associate judge to the Second Penal Senate.
Q In Stuttgart, were only such people executed who had been sentenced, to death in Stuttgart or were people executed in Stuttgart too who came from other districts?
A Stuttgart was a place of execution for tho District Courts of Appeal of Stuttgart, of Karlsruhe, and of Zweibruecken.
That is the Saar Territory and the Palatinate, as well as the place of execution of the sentences of the People's Court which were tried in this district; furthermore, a number of sentences by military courts were executed in Stuttgart.
Q.- Does that exhaust the list of errors or did you only take out the most important ones?
A.- I only emphasized the most important errors in order not to go too far afield.
Q.- Witness, I believe you can limit yourself to that.
A.- I may add that the Staudenmeier case, which was submitted by the prosecution is not contained in this list.
Q.- Witness, please describe the nature, the history and purpose of the so-called contact which was established between the court and the prosecution?
A.- A private exchange of ideas between judges and prosecutors about the course of penal cases that was to be expected was used in Germany since a long time -- already before 1914. I still recall the conversations which my own father had with the presiding judges of the jury courts on their way together to their offices. Revival of this usage was undertaken by Minister of Justice Guertner at a meeting of the presiding judges of the Special Court, on the 24 of October 1939 in Berlin. I was present at this conference. Minister Guertner spoke about the contact between court and prosecution with the following words: "And then, gentlemen, still the outside picture." He then stated that there was cause for having the motion for penalty made by the prosecution simulated to the result that is to be expected to a certain extent. During the further course of events, a corresponding decree was issued by the Minister be the Prosecution, but not to the judges. I, personally, never saw this decree, but I did know that the Minister, because of the attacks upon the Administration of Justice, tried to avoid differences between the motion for the sentence made by the prosecution and the sentences. In this way, he hoped to reduce interferences by the police.
From then on, the prosecution in suitable cases got in touch with the entire court and tried to find out what might be the result of that case.
The instructions issued to the prosecutor were generally not submitted to us. An influence exerted upon the court by the prosecutor was absolutely impossible, and there was never any question about it either. No prosecutor would have tried in my court to talk me or my associate judges into any kind of a sentence or a judgment.
When the nullity plea to a large extent was raised against sentences pronounced by the Special Court of Stuttgart, a preliminary discussion with the prosecutor in many cases was the only means to deprive the higher agencies of a cause for making a nullity plea. Examples from concrete cases will elucidate that statement.
Q.- If I understand you correctly, witness, in Stuttgart the so-called guidance never really took effect?
A.- A guidance in the meaning that the Chief president discussed with the presiding judges of the courts the pending criminal trial by way of guidance, that did not take place in Stuttgart. Neither my chief president nor I had an inclination to imitate this proceeding that could be observed elsewhere.
Q.- Thus there was only an occasional contact between you and the chief president. What do you have to say about that?
A.- The chief president got in touch with me only twice. But from the very beginning he told me that he only wanted to inform me about what he knew about the case: that he was only a civil jurist and that he had to leave it up to the Special Court to determine the correct sentence.
Q.- By that you mean to say that it was left up to you to find out the guilt; in other words, whether the person considered was guilty or not.
A.- The guidance in Germany never reached such an extent. In general, it was only a question of the amount of the penalty. This is shown by many documents that have been submitted.
Q.- Witness, what was the attitude of the Special Court and of yourself in cases of general criminality; above all, in cases of economic offenses?
A.- Since criminals and especially criminals in economic cases usually would carefully evaluate the risk that the offense involved, in times of emergency this risk has to be so high that the offense becomes too dangerous, and thus it is not committed. I was of the opinion that black market dealers and profiteurs especially, had to be punished severely, and I had a similar opinion in regard to the punishment of other serious criminals during war time. Excesses in field of penal measures were out of place toward aggravated sentences as well as toward leniency.
Q.- Witness, you are speaking of the very same affidavit which I already mentioned today in the introduction to the examination of yourself -- I mean Document NG-644, Document Book III, Supplementary Volume page 49, exhibit 475 of the "removal" of criminals. What do you mean by that?
A.- I understand that to mean that the population should be, say, cleaned of parasites by long term prison sentences, security detention, or death sentences. I should like to add that removing these criminals does not mean extermination.
Q.- Did the Special Court of Stuttgart more directly or less directly make use of the death sentence than the average of the rest of the courts of the Reich? In order to answer this question, I shall show you the following documents submitted by the prosecution and the defense. What conclusion do you draw from these documents regarding the year 1943? Just a minute, witness. (Witness is offered a document) A.- Exhibits 172, 249 and the list of death sentences that we have just discussed, 253, place me in a position in which I can make an exact statistical calculation for the year 1943.
From Exhibit 172 and 249, both contain the same numbers. I can find out the following: in 1943, in the Reich, in the Protectorate, and in the Incorporated Eastern Territories, all together 5,336 death sentences were pronounced.
In order to discuss the death sentences pronounced by the special court, I have to deduct from these the death sentences which could not belong in the competency of the special courts. Those are the sentences in cases of undermining of military morale. That is beginning with January 1943, treason and high treason crimes against the occupying, possession of weapons and sabotage committed by Czechs and possession of arms by Poles. Those are altogether 2,242; the rest, 3,094 all refer to crimes in which the special court of Stuttgart was competent and which it handled exclusively. The number of inhabitants of the German Reich including the incorporated eastern territories in 1939 amounted to 90.2 millions, the inhabitants of the protectorate were 7.380; altogether 97.409 millions. The population of the district of the Special Court of Stuttgart amounted, as I have already stated to 2.97 millions. For one million inhabitants in the average of the Reich, a figure of 31.5 death sentences were pronounced by the special court in 1943. The total number for the district of Stuttgart with approximately 3 million inhabitants would thus be *** death sentences, that is the calculated figure. However, 36 death sentences only were pronounced. This is a percentage of 38 per cent of the average of the Reich. To this calculation I want to note that for some time I worked in the Wuerttemberg Statistical Office.
Q Later on I shall submit to the Tribunal Cuhorst Document No. 67, as Exhibit 4; and Cuhorst document 68, as Exhibit 5. Witness was this percentage of death sentences sufficient for the Stuttgart area and for what criminalistic reasons?
A In Wuertttemberg due to the peculiarity of the population, who almost all were Suedians, it was not necessary to come up to the average of the Reich in the extent of the penalty even approximately. However it was necessary on the other hand when crimes for the first occurred in a epidemic form, to act immediately in a decisive manner. Only in this way could excessive amounts of such crimes and accumulation of death sentences be avoided.