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.
Q Witness, how many death sentences did the First Senate of the district court of appeal Stuttgart pronounce in 1937 to 1944 while you were presiding judge. I hope that by this question I can now finally clear up the temporary misunderstanding in the mind of the Presiding Judge of this Tribunal.
A For the time from 1937 to 1940 I found out the following with absolutely certainty: Seven death sentences were pronounced by the First Senate while I was presiding judge. They are the following numbers in the death sentence list submitted by Schwarz--Numbers 2, 19, 36, 37, 113, 114 and 115, and an eight death sentence was pronounced outside of town. But I do not know wither the year it was pronounced not the name of the defendant. All of the defendants who were condemned to death were Germans and all of the offenses were crimes which were committed within Germany.
Q I shall not discuss these criminals cases in detail now. We shall come back to them later on. Did the Special Courts of Stuttgart in a political case for any legal reason whatsoever pronounce a death sentence?
A No.
Q Did the Special Court of Stuttgart because of a crime committed abroad pronounce a death sentence against foreigners?
A Never.
Q How was it that the practice and decisions of the district court of appeal of Stuttgart in criminal cases differentiated from that of the Special Court?
A It differed in the same way as the sentences of the Special Court of Stuttgart were on the average considerably lower than those pronounced by most of the other special courts; the same way it was with the First Penal Senate; in comparison with the other district courts of appeal.
I add that all of the judges of the Penal Senate, except for one elderly District Court Councillor, who was mostly ill, were members of the Special Court too.
Q Witness before I go into the next question, may I ask you do you have Exhibit 178, NG-676, Volume 111-E before you?
A Yes, I have it before me.
Q That is a prerequisite for my question. What do you conclude in regard to the practice of the court, that is the district court of appeal of Stuttgart, from this decree?
A The document that I have before me is the record by the Reich Minister of Justice of 5th July, 1944, Roman numeral IV, GI 5045-1944. The decree was submitted as a document by the prosecution. I supplement it as follows: In my opinion the author of this decree was Ministerial Councellor Franke, in Division IV of the Reich Ministry of Justice. The effect of this decree isssued by Franke on the judges whom the president of the district court of appeal had to inform about it was very strong. The judges apart from myself became very much excited, especially by having their names mentioned. From the decree, which probably started my removal, the following is certain: That of the First Penal Senate while I was presiding judge, nine cases pronounced by it were severely criticized, and only three pronounced by the second senate. The more lenient jurisdiction by the First Senate is due to the fact that for cases of undermining of military morale we had applied the standard of the offenses against the malicious acts law to. Those were cases which the special court dealt with constantly. In many cases we could hardly differentiate between offenses against the malicious acts law and cases of undermining of military morale.
Q Witness, do you know of any further decrees of this nature regarding the special court. Please comment on the guidance of justice, as far as you want to supplement the remarks already made by you on this subject.
A My predecessor already became the victim of such decrees in 1937. In the Special Court reproaching decrees were almost a daily occurrence. Later on these decrees were replaced by nullity pleas unfavorable for the defendant. In the Penal Senate it was quite similar. Here decrees and extraordinary objections especially, since Ministerial Counselor Franke alternated the new element in the decree of July 1944, was the Frank's naming of all judges in connection with the most severe criticism of their sentences because of too much meniency. Other guidance decrees which have already been submitted in this trial were of an impersonal nature; for example, the guidance decree to the Hanseatic court of appeal in Hamburg of 1st March, 1945, Exhibit 474, NG-527, supplement to Volume III-B.
Q Witness, if you were speaking of -- meaning now that already your predecessor had repeatedly received such decrees, or rather that they concerned him and that he became a victim of such decrees, I assume that you are here speaking of events which you have already mentioned in connection with your appointment to the special court; in other words, that Flaxland was the victim?
A Yes, that was the district court director Flaxland.
Q Was the jurisdiction of the Stuttgart court, in particular I am speaking of the Special Court, and also of the Penal Senate, influenced by such decrees? What was your personal attitude about them.
A The jurisdiction of the Penal Senate and of the Special Court remained unchanged. I am fortunately in a position in regard to the sentences from 1937 and my last orders of November, 1944 to be able to prove my statements by referring to them. Inspite of the constant reproach to be more severe, the course of which has already been discussed here, no judge of the Penal Senate and the Special Court deviated from the line which existed already at the time of director Flaxland. In order to protect myself against these serious inner burden of being incited to more severity I rejected all that was received from the administration of justice, for all dealing with these decrees would have made me dependent as a judge. The final result was clear to me, and as I have already mentioned, I lasted for almost seven years.
Q One witness stated that you were in favor of death sentences as often as possible. Did the Special Court always pronounce a death sentence if the prosecution asked for them or intended it?
A No. In the majority of cases the Special Court did not comply with the motion made by the prosecution as to a death sentence. In many cases the Special Court also would convince the prosecutor at the time that the death sentence which could be gathered from the indictment could not be asked for by the prosecution since the case was quite difficult.
Q Do you still remember the name of the witness who had made that statement? Have you just forgotten it?
A Unfortunately I don't have the document with me.
Q Can you cite individual cases in which inspite of the fact that Berlin made an application for it, or instrued to that effect, the death sentence was not pronounced?
A I can cite several dozen of such cases.
Q May I interrupt you . . . .
A By merely referring to the means that I have here, that is to say, my memory and a number of documents and notes, I can cite dozens of these cases.
Q Did the Special Court Stuttgart while you were presiding judge pronounce a death sentence once when the prosecution had not asked for it?
A Nut a single case, even though legally this would have been absolutely possible.
Q Could the court in every case not pronounce a death sentence?
What was the situation?
A If the facts of the case, of an offense that should be punished with a death sentence had been determined, then the death sentence had to be pronounced if the death sentence was mandatory. This situation arose not infrequently.
Q Did the clemency agency have to review whether the sentences were just? Was the granting of clemency a replacement of legal means of recourse, or legal aids against wrong or unjust judgments?
A The granting of clemency was not a replacement of legal recourse and legal aids. The court itself in the sentence only had to lay down, the state's requirements of penalty. The requirement itself was carried out outside of the legal sphere, that is executed; and only on this level, on the level of the legal leadership of the state, that is the administration of justice, does the clemency proceeding move.
Q Did the Senate, the Penal Senate or the Special Court ever try a case against a full Jew?
A Never.
Q Did they try cases against POWs or interned persons?
A No.
Q Outside of the Winter/Eckstein case did you have any other cases against racial Gypsies?
A No.
Q Were the courts in any form, by any office, required to pronounce death sentences for the extermination of Jews, gypsies or foreigners?
A Not at all.
Q In exhibit 418, NG-491, Volume III-K, page 58, the witness Dr. Arnold Klett testified that you "find it to be a special pleasure in the case of executions of the death sentence, to be present with a stop watch in your hand in order to time the execution," by way of repeating his own words. I now want to ask you, were you present when death sentences were executed?
A During my entire life time I was present only once when I was a student at an execution of two robbers and murderers, by the names of Rufner and Goert, who in 1920 by the jury court in Stuttgart had been sentenced to death. Since that time I was not present at any other prosecutions.
Q I have in my hand the two affidavits by the witness of the prosecution Klett. That is the affidavit which has no certification, and was not submitted to the Tribunal because at that time I objected to it, and the second one bearing the date of 3rd of November and the affidavit was submitted much later, that is the one of 7th April; that was taken much later, 7th April 1947, Exhibit No. 418; and now I ask you, witness, do you want to make any further explanations about it? Therefore, I am submitting the affidavit to you.
A These two documents, that is Exhibit 218, and the one that was not submitted, both of the 3rd November, 1946; I have here and also the affidavit taken 7th April, 1947. I can see that in the affidavit that was not submitted, that is in the letter it says, that I found it "to be a particular pleasure in the execution of death sentences, as it is said, stand with a stop-watch in my hand to work there."
The affidavit which was submitted, the statement made by the witness Klett, has the phrase, "with the stop-watch in my hand", was on the original omitted, and later on it was again included. That is all, that I can say without evaluating these documents by reading them.
Q By referring to this affidavit, which was introduced by the prosecution, I now refer to the submitted document by Oberbuergermeister Klett which he gave to me, and which I signed or rather certified on 26th of May, 1947. I want to spare the Tribunal even though it is very important for me, to read the entire affidavit, but perhaps I may read the two most striking passages. Arnold Klett, lord mayor, states here, declares under No. 1, "my testimony, that Cuhorst in the execution of death sentences."
Mr. LaFOLLETTE: If Your Honor please, as I recall, this affidavit was given while Klett was in the city, and I objected to it being taken earlier, or being used earlier, on the grounds that Klett was here to testify. I don't recall the circumstances under which he departed from Nurnberg. For that reason I object to the affidavit because the witness was here in Nurnberg and competent to testify, I think, at the time the affidavit was given. If I am mistaken in that I will withdraw the objection, but from my memory I object on that ground.
DR. BRIEGER: May I answer the objection made by Mr. La Follette in a few words?
Mr. La Follette starts with the assumption, absolutely correctly, that the affidavit was given at a time when Klett was here. I still recall the day; it was the second day of Whitsuntide. In that connection, however, may I point out that at that time the prosecution had raised an objection and that objection, as far as I know, was dealt with completely by the ruling which was made by the then presiding judge, the Honorable Judge Marshall, and he dealt with it in favor of our opinion.
Furthermore, since Mr. Einstein has just made an appearance here, may I say that at that time I accompanied Mr. Klett to the door of Mr. Einstein's office, who interrogated Mr. Klett at that time and who had every opportunity to relate his misgivings to Klett. As I have already stated, that was at the time when Judge Marshall was still presiding judge.
MR. LA FOLLETTE: I don't know that we are concerned about what Mr. Einstein might have said to Mr. Klett. It may be well that the Court reserve its ruling until we can see what the transcript says, I don't remember definitely. But I would be satisfied if that would be the temporary ruling of the Court until I can look at the transcript.
THE PRESIDENT: We will permit counsel to search the record and let us know what the situation appears to have been in the record. In any event, counsel is attempting to read an exhibit which has not been offered as yet as an exhibit, and that is improper.
If you have an affidavit and if the affidavit is admissible, it should be offered as such before you read it.
DR. BRIEGER: I wanted to offer it at the moment only for identification. May I reserve the right to read the passages in question until such time as I submit the document officially to the Tribunal?
THE PRESIDENT: When the exhibit is received, if it is received, you may then read the necessary portions; you will not read them before that time. We will reserve our ruling until we have further report on the facts.
DR. BRIEGER: I beg you to excuse my mistake; it was unintentional.
THE PRESIDENT: May I ask you, what identification can you give us for the instrument which you are intending to offer in evidence? Has it a number?
DR. BRIEGER: Yes, Your Honor.
THE PRESIDENT: What is it?
DR. BRIEGER: That will be Cuhorst Document No. 48, bearing the Exhibit No. 6.
THE PRESIDENT: You mean which you intend to offer as Exhibit 6?
DR. BRIEGER: That is exactly the situation.
THE PRESIDENT: You may proceed with something else.
DR. BRIEGER: Yes.
BY DR. BRIEGER:
Q.- When, where, and by whom were you interrogated for the first time? How did the interrogations start? In that interrogation were you asked about the manner of handling cases by other judges and prosecutors?
A.- On the 10th of December 1946, at 1720, in Nurnberg, I was interrogated for the first time in this case by Mr. Einstein. The interrogation started with a very violent clash, and then it took a more or less excited course. At that time I was not interrogated about other judges and prosecutors, nor later on.