Q. Before sessions under Cuhorst, did the judges assemble in the Judges' room?
A. No, the judges always assembled in the deliberation room, which was immediately behind the courtroom.
Q. Did Cuhorst ever make any statements in the corridor or in adjoining rooms about cases which were to be tried the same day, to groups or to individuals?
A. I do not happen to know of any such incident.
Q. Do you remember, or did you come to know of a murder case which was tried with Cuhorst presiding, and which allegedly was dealt with in one quarter of an hour?
A. No; the cases of murder which I attended were tried very carefully and thoroughly, and a trial of such short duration is not known to me.
Q. Do you happen to know of cases where the police in Wuerttemberg killed individuals that had been acquitted or had received a very lenient sentence; that is, killed them by shooting them or some other way?
A. No, It is only known to me that at the beginning of the war concern was voiced that the police could react in that manner when sentences appeared to them to be too lenient. Cuhorst was afraid that such a thing might happen, especially in the case which was objected to by Reich Minister Guertner. At that time preparations were to see to it that the defendant, after he had been sentenced, should not be transferred to the police for the purpose of bringing him to the penitentiarv as would have happened in other cases, but Cuhorst ordered that the defendant should be transferred to the penal institution by officials of the administration of Justice to assure that intervention on the police would not be possible.
Q. Yes.
A. In addition to that question I might also mention that many cases occurred where defendant were acquitted by the courts and set free, but were later transferred to a concentration camp or put into protective custody by the police.
Q. In the courthouse, did Cuhorst speak in a Swabian dialect?
A. Cuhorst always spoke in a Swabian dialect.
Q. In the Swabian dialect is the word "Schornstein" one only says "Kamin" used for chimeny?
A. One does not use the word "Schormstein" in Swabian one only says "Kamin".
Q. Did you remember any statement or any phrase by Cuhorst in that connection?
A. In what way?
Q. Something in connection with judges in Stuttgart making a statement about euthanasia.
A. You mean the expression about the chimney or smoke-stack?
Q. Yes, yes, will you tell that to the Court?
A. The remark that the people who were killed through euthanasia and cremated--well, in the public an expression arose that the police had made the man rise through the smokestack or through the chimney. I remember that expression was used once by Cuhorst on the occasion of a conversation about euthanasia. At that time the issue was discussed concerning the consequences of that unfortunate thing, and particularly the fate of those defendants who, on the basis of paragraph 51 of the Penal Code, had been acquitted for insanity. In that connection Cuhorst said that under the circumstances one had to fear that if we acquitted a defendant, afterwards, by the executive organs of the Administration, he would be made to go up through the chimney. That is about what he may have said; I can't be very precise about it any more.
Q. That is sufficient, witness.
Was a distinction made, in trials before the Special Court, between Germans and foreigners?
A. In those cases in which I worked, that was not so. In fact, I do not know of any single case where such a distinction was made. The foreigner had full right to be heard, could select a defense counsel, and also had the important privilege, based on German law, to put question to the witness himself. Basically, the general laws which were applicable to Germans were also applicable to them.
Q. If a defense counsel was selected by the Court, did the same principles apply?
A. Yes.
Q. Does that also apply to Poles?
A. Yes.
Q. Well you briefly comment on the case of the black-market slaughterer Soll? How did that sentence come about, although Soll was no longer active?
A. Soll was the most serious case of black market slaughtering, according to my knowledge, which ever occurred in Wuertemberg. Considerable amounts were involver; I believe it must have been at least 200 hundred weights, possibly more. Of course, in this case it was also taken into consideration that the criminal act had already been completed and that Soll had dissolved his butcher shop. On the other hand, of course, because of the large quantities involved, a great damage had been caused to the population, and the fact had to be added that Soll had a considerable criminal record of previous convictions, including convictions for similar offenses committed during the first World War.
Q. With Cuhorst presiding, were there frequently death sentences for black-market slaughters? Or, what were the sentences in such cases?
A. I have already mentioned that the Soll case was the only instance of a death sentence in a black-market case at the Special Court at Stuttgart. Otherwise, for black-market slaughtering in smaller amounts, prison terms, or, if the quantities were considerable amounts of meat, penitentiary terms were pronounced.
On this occasion may I also point out that according to my experience, other Special Courts in Germany, were smaller quantities were involved, pronounced penitentiary terms where, in similar cases, the Special Court at Stuttgart had only pronounced moderate prison terms.
Q. Witness, I now come to the Untermarchtal case, and I hand you the indictment. If you like, I can also hand you the opinion.
First of all, witness, did you participate in the deliberations for the sentence in the Untermarchtal case, and in what capacity?
A. I was the reporting judge of the court.
Q. Did Cuhorst, or the Court altogether, have anything to do with the initiation of the prosecution?
A. On principle the Court had no possibility of having any influence on the prosecution of a case, with a few exceptions which are based on the Penal Code. However, the institution of penal proceedings is always the job of the police and the prosecution.
Q. Was it the same in this case?
A. Of course. In this case, to my knowledge, a local office made a denouncement to the police or to the prosecution, and they dealt with the case further.
Q. When did Cuhorst find out for the first time about the pending case?
A. I could not say that with precision.
Q. When did you find out about it?
A. The latest when the indictment was served; but before that time, through the Referent of the Prosecution, it was learned that that case was under consideration and would soon be indicted before the Special Court.
Q. Could the Court have refused to try the case?
A. No, of course not.
Q. What would have been the consequences of any such refusal on the part of the judges: Can you answer that questions?
A. I don't understand that question. It goes without saying that it is quite impossible for any court to refuse to handle a penal case which has been brought before it in an orderly fashion.
Q. Did the Court or Cuhorst have anything to do with the requisitioning or the confiscation of the property of the cooper live or the convent?
A. No, as far as I know, not at all. If I may be permitted to describe that briefly: When the indictment was filed, the question was unofficially brought before the Court as to whether it wasn't possible to confiscate the property of the convent on the basis of that trial. Under certain circumstances, on the basis of the Penal Code, on the basis of the War Economy Decree, and various other decree, theoretically at least, confiscation was permitted. I wasnt to make that very clear, "theoretically". At that time, as the Reporting Judge, when I received the indictment I examined that point and soon arrived at the conclusion that the alleged guilt of a few members of the convent under no circumstances justified or could justify the confiscation. I informed the defendant Cuhorst of that point of view, and, as I remember quite certainly, he approved that opinion. I also reported that opinion to the Referent of the prosecution, and then something quite unusual happened. The Gestapo, on the basis of an administrative decree on its part, without further ado, confiscated the property on the basis of the so-called Law Against Organizations Inimical to the People and Hostile to the State. The title of that decree must have been that, or something similar to it.
The Special Court was faced with a faith accompli and, of course, had neither cause nor possibility to deal with that question of the confiscation. As I have explained, according to the point of view of the Court the confiscation would not have taken place.
Q. Were the sisters under indictment sentenced more severely or leniently than was demanded by the prosecution? Do you remember that, witness? 8450 A.- I remember that when the indictment was filed we were told that the Reich Ministry of Justice expected severe penitentiary sentences against the sisters.
That was the period when a certain nervous irritation prevailed in all official agencies in connection with the infamous Reichstag speech by Hitler, who, in the spring of 1942, in a public session of the Reichstag, criticized the German courts and the German judges and insulted them for having pronounced too lenient sentences. It was a most disagreeable situation.
At that time the defendant Cuhorst, who had been on a trip, requested me to approach the Senior Public Prosecutor, the chief of the local prosecution, explain the matter to him, and ask him to see to it that these demands for severe sentences should not be put, but that the demands for sentences made by the Prosecution should remain within a range which would be reasonable. Cuhorst also suggested that, considering the importance of the case, a representative from Berlin should be requested to attend the session to assure that afterwards, by a decision from above, objections should not be raised to the decision of the Special Court by way of a nullity plea.
I brought this suggestion before the Senior Public Prosecutor in Stuttgart, who promised to examine the matter; and, in fact, the demands for penalty made by the Prosecution were far below the scope originally intended. The Court, according to my knowledge, went even below the measure of the penalty demanded by the Prosecution.
Q.- Were the sisters sentenced on the basis of all the charges raised in the indictment? Will you please look at the indictment you have before you?
A.- That indictment is very extensive. It dealt with the -
THE PRESIDENT (Interposing): Will you answer that question very briefly? We have had it answered two or three times before. Were they sentenced on all of the charges or on part of them? They were sentenced on part only, weren't they?
THE WITNESS: Yes, only on the basis of some of the charges, some groups of charges.
THE PRESIDENT: We have heard it before; that is sufficient.
THE WITNESS: Yes.
BY DR. BRIEGER:
Q.- The Mother Superior was indicted for crimes against the war economy but was only sentenced to four months in prison for minor offenses; is that correct?
A.- Well, yes, I believe so. I do not happen to remember the details of the charges against the Mother Superior, but I remember that she was sentenced to a short term.
Q.- Did she serve her sentence? Do you happen to know anything about that?
A.- To my knowledge the sentence was commuted, not only the sentence of the Mother Superior, but also the sentences of others; and that was done with the support of the defendant Cuhorst.
Q.- Were all points of view taken into account which spoke in favor of the defendants?
A.- Certainly; it was particularly taken into account in favor of the sisters that these extensive transgressions were only possible because the competent agencies of the State and the Party had not fulfilled their duty, they had failed to supervise, to control, and to examine, and that therefore the sisters were more or mess pushed in that direction and the temptation had been very great.
THE PRESIDENT: This is also cumulative; it has been covered before.
BY DR. BRIEGER:
Q.- It has been asserted -- and also yesterday again by the witness Klette -- that Cuhorst had purposely selected a very large hall in the convent for the trial in the Untermarchtal Convent case. Did the trial take place in a part of the convent which was to serve religious purposes?
A.- Well, -
THE PRESIDENT.- You can answer that yes or no.
THE WITNESS: I did not have that impression.,It was just a large hall.
THE PRESIDENT: Witness, listen please. The question was whether the trial was held in a part of the building which was used for religious services. Was it or wasn't it?
THE WITNESS: As I have said, I don't happen to know the locality.
The PRESIDENT: You don't know.
Next question.
BY DR. BRIEGER:
Q.- Was the case a case of persecution for religious reasons?
MR. LA FOLLETTE: I object, Your Honor. It calls for a conclusion from the witness.
I repeat: I object, Your Honor, it calls for a conclusion of the witness.
BY DR. BRIEGER:
Q.- Do you have any reasons to assume -- I will change that. On the part of the prosecution, and in the sentence, did religious points of view enter?
THE PRESIDENT: He may answer that question.
THE WITNESS: I did not have that impression; neither did I have the impression that these points of view were important for the Court.
THE PRESIDENT: Make your answers brief, please.
Next question.
BY DR. BRIEGER:
Q.- Do you want to say anything more about the Untermarchtal case?
A.- I don't think so.
Q.- On Saturday, the 19th of September, 1942, you remember, with Cuhorst presiding, in Laupheim, Kreis Ulm, a murder case was tried against a certain Mueller.
A.- Yes.
Q.- On the same day, if you remember that also, there was a trial in Stuttgart against a Pole by the name of Krupa, who, in the area of Besigheim on the Neckar, had committed several cases of arson. Question: Did Cuhorst preside in those two cases?
A.- That is quite impossible; for the reason of different localities, it is quite impossible. I attended the Mueller-Laupheim case and I remember it very well. The case, quite exceptionally, was tried on a Saturday afternoon. Therefore, technically, it is quite impossible that Cuhorst could have been in Stuttgart at that time.
Q.- Was there a considerable distance from Stuttgart to Laupheim?
A.- Certainly.
Q.- Cuhorst has been charged by a witness of the prosecution with the fact that Gestapo officials were used primarily or exclusively as interpreters before the Special Court. Do you happen to have any experience with interpreters before the Special Courts?
A.- As interpreter for the French language, a Justice Secretary of the Administration of Justice was used, and for the Polish language another employee of the local court at Stuttgart was used.
Q.- What was her name?
A.- Gisella Fischer.
Q.- Was she used in most cases of Poles as interpreter?
A.- Almost always; that is, as far as I can judge that. Of course, I only attended a small number of these cases against Poles.
Q.- Did you yourself make any observations to the effect that Gestapo agents were used as interpreters?
A.- No. I only remember one case where apparently the interpreter Fischer was not available and an interpreter for the Polish language was put at the disposal of the Court by the Police, who were just available. Whether the man came from the Gestapo or from the Criminal Police I could not tell.
I neither saw him before nor after.
Q.- Why were the police approached?
A.- I don't happen to know that; probably there was no other interpreter available at that time, and the police always had a certain number of interpreters at their disposal.
Q.- One more question, witness. Do you r member any cases with Cuhorst presiding where he sentenced Poles to death exclusively on the basis of the Decree Against Poles?
A.- I do not know of any such case. I heard later that allegedly a case like that occurred. I was greatly surprised because it would have been quite an unusual case, and according to the normal course of events I would assume that I should have found out about that immediately after the session.
DR. BRIEGER: Thank you, that is all.
THE PRESIDENT: Is there any other direct examination?
DR. KOESSL (Counsel for the defendant Rothaug): I ask to be permitted to put a few questions to the witness.
THE PRESIDENT: You may proceed, briefly.
BY DR. KOESSL:
Q.- Witness, do you remember a meeting or a rally in Strasbourg in 1942?
A.- Yes.
Q.- Did Undersecretary Freisler speak on that occasion?
A.- Certainly -
THE PRESIDENT (Interposing): Answer yes or no. The question was, did he speak?
THE WITNESS: Yes.
BY DR. KOESSL:
Q.- Did you speak to the then District Court of Appeals Director Ferber of Nurnberg at that meeting?
A.- Yes, I spoke to Ferber at that time. I made his acquaintance.
Q.- What did Ferber tell you concerning the fact that Freisler made statements about the Katzenberger case?
MR. LA FOLLETTE: Just a moment, please. I object to this, Your Honor, for the reason that if it is designed to affect the credibility of the witness Ferber, no foundation was laid at the time the witness Ferber testified to identify this conversation nor to refer to it.
THE PRESIDENT: He may answer the question.
THE WITNESS: Dr. Ferber, in the course of the conversation, briefly mentioned that Undersecretary Freisler had talked to him or had approached him concerning the Katzenberger case, or whatever the name was, concerning a case tried before the Special Court at Nurnberg. As far as I remember, Ferber did not tell me any more about that matter.
BY DR. KOESSL:
Q.- Was that matter considered important?
A.- Not as far as I was concerned.
Q.- As far as Ferber was concerned?
A.- Of course not.
THE PRESIDENT: He needn't tell what was considered important to Ferber.
MR. LA FOLLETTE: The objection is sustained and the answer is stricken.
BY DR. KOESSL:
Q.- What was Ferber's attitude when criticism was voiced on the severe course of the Special Court?
MR. LA FOLLETTE: Wait a minute, please.
I object, Your Honor.
THE PRESIDENT: Objection sustained.
DR. KOESSL: I have no further questions.
THE PRESIDENT: You may cross examine.
CROSS EXAMINATION BY MR. WOOLEYHAN:
Q Mr. Azesdorfer, would you please lock in my direction. I want to talk to you. In your experience as a judge on the Sttutgart Special Court did that court pass sentence on the basis of racial characteristic of the defendants, according to the Mazi theories of race?
A The Special Court Stturgart did not take racial characteristics into consideration. I have already mentioned that for instance the prosecution of penal cases on the basis of laws did not belong to the competency of-
Q You have answered my question. You said they did not. Now I show you a document. Do you find that that document constitutes the appeal of the defendant Eckstein and the defendant Winter for a reopening of proceedings?
A I did not understand the question.
Q Please look at the document which I have Just handed you.
A Yes, Yes.
Q Do you find that that is a plea for reopening of proceedings on behalf of the defendant Eckstein and the defendant Winter, who had boon sentenced to death by the Stuttgart Special Court for stealing bicycles?
A Do you mean that document of 27 November.
Q Just tell me, please, in a generic way if that, in general, is to document you hold in your hand.
A Yes--well, yes. Yes, certainly.
Q Now please turn to Page 7 of that document.
A Page 7?
Q Do you find that Page 7 is the first page of the decision of your court on the plea by the defendant Eckstein?
Is that correct? Dated 5 March 1943.
A The decision against Friedrich Eckstein--yes, I have that before me.
Q How would you please turn to page 8.
A The pagination is not quite correct. Is the paginationthe figure 8 supposed to be on the page? I don't find a figure 8.
Q The 8th sheet in the document.
A Three, four, five, six, seven, now I have the eighth page. It is Page No. 2 of the decision of 5 March 1943.
Q That is correct. Now, at the bottom of that page do you find the following language quoted by the Court: The crimes established-
A Under three?
Q --his numberous prior convictions, the incorrigibility of the condemned, who for years had been rooming around like a gupsy, never doing any regular work, and together with his accomplices represents a considerable danger to the public, now as ever demand his complete extermination from the racial community, and thus the death penalty. Do you find that language in there?
A Where is the expression "racial community"?
Q That is at the top of the 9th sheet.
A That is "people's community." That is basically, fundamentally different than the racial community. It says "Volksgemeinschaft."
Q All right, you read the phrase, Mr. Azesdorfer, beginning with "now as ever."
A Is that on the previous page?
Q At the top of the 9th sheet, Mr. Azesdorfer. Read the phrase, "Now as ever demand his complete extermination," and so on.
A Demand now as ever his complete removal from the People's community. I don't find anything else.
Q And the fact that you refer there to the people's community and Eckstein is referred to as a gypsy has no connection in your mind, the fact that he must be excluded therefrom. Is that a fact?
A Eckstein was no gypsy. That was established. It was established that Eckstein was no gypsy.
Q If Eckstein was no gypsy, why does the opinion, in which you concurred, state that he was, at the bottom of page 8?
A No. It says, from the outset it is stated in the opinion that Eckstein was a vagrant, like the gypsies, and that he had joined the gypsies.
Q All right. That is sufficient. Now, at the top of Page 10, the next sheet, the 10th sheet.
A That is the decision concerning Winter.
Q Right. And in the upper right hand corner do you find Winter described as single and a gypsy?
A Yes.
Q Now on Page 11 in the last paragraph on that page, do you find Winter described as a typical gypsy who was a menace to the public?
A Certainly, because these gypsies, as far as they were roving around and ware without work, frequently constituted a danger for the community.
Q Now before we leave that matter of the transition which you corrected, namely this folk community, from 1933 until 1943 could a Jew be a part of this folk community?
AAccording to the official opinion of the Party, he could not.
Q Could a Pole be a part of this folk community?
AAs far as he was not a Reichsangehoeriger, Reich Citizen, certainly not. That is ay personal opinion.
Q Then could you find any difference between the phrase "racial community" and "folk community"?
A I consider the -- when I hear the term Volksgemeinschaft," folk community, I think of a national community such as there is a national community of Englishmen, Frenchmen, and Americans.
Q That is enough. In your experience in the Stuttgart Special Court, Mr. Azesdorfer, did you ever think that defense counsel were prejudiced or put at an important disadvantage? Now, you can just answer that yes or no.
A In what direction, may I ask? Defense counsel had serious disadvantage? For what reason?
Q For the reason of giving their clients a fair defense. Were they over put to any disadvantage and prevented from doing that?
A No, not according to my knowledge, provided the defense restricted itself to relevant points. I remember one case with which a friend of nine was -
Q I am not asking you about that. I an asking you in general. You have answered my question. I show you a letter. Please turn to Page 5 of that letter.
A Page 5. Conversation with -
THE PRESIDENT: Just moment. Counsel hasn't asked you any question yet.
BY MR. WOOLEYHAN:
Q Now, on Page 5 of that letter, Mr. Azesdorfer, do you fin the following sentence: "It was also I who opposed the tendency of restricting the rights of defense counsel which appeared from time to time, and I took a stand for defense counsel who in the heat of a trial had passed liberalistic remarks."
Do you find that sentence there?
A Yes, certainly. I an just thinking of that one case, the one case I have mentioned.
Q Will you please wait until I sak you a question, Mr. Azesdorfer? Who wrote that letter?
A What letter?
Q The letter you just read from.
A That is mine. Those are my statements. My statements to the Administration of Justice of the land Wuerttemberg. My point of view.
Q Your point of view when? What is the date on that letter?
A 12 August 1945.
Q Why did you write that letter on 12 August 1945, and to whom did you write it?
A To the Administration of Justice of the Land Wuerttemberg. At that time it was put to me to explain my attitude toward national Socialism briefly.
Q And in that letter were you telling, to the best of your knowledge, the truth?
A Certainly.
Q All right, that is all. Now, one final thing, Mr. Azesdorfer. Did you in assisting in the judging of cases at the Special Court Stuttgart during the war ever particularly relate the activities of that court to a successful waging of the war?
A That was a phrase, a term, which occasionally was used in sentence concerning malicious acts cases when so-called malicious criticism had been expressed against the government.
I emphasize "so-called" malicious criticism. The phraseology of the agencies was to the effect that such a criticism constituted a danger for a victorious conclusion of the war. That was a phrase, which, to my knowledge, had been coined in the Ministry and beyond doubt that phrase also appeared in sentences of cases against the Malicious Acts Law.
Q I show you another document. Turn to Page 4, please.
A Yes.
Q. On page 4 do you find the following sentence: "I recall a sharp clash with another judge during one of our deliberations, because I was going to be outvoted in a political case"?
A. Yes.
Q. "And I declared that maybe in too drastic a manner one would be mistaken by assuming that the war should be won with such Senseless penalties." Who wrote that letter?
A. I, of course. I wrote that letter.
Q. When did you write it?
A. Probably on the date it shews here, 5 September 1945.
Q. Why did you write it?
A. For the very same reason, in order to justify my attitude during the Nazi period.
THE PRESIDENT: Mr. Wooloyhan, we will recess for fifteen minutes.
(A recess was taken.)
THE MARSHAL: The persons in the Courtroom will be seated.
The Tribunal is again in session.
CROSS EXAMINATION BY MR. WOOLEYHAN: Mr. Azesdorfer, you have described from the document which you hold in your hand these two pleas fro reopening of proceedings on behalf of the two gypsies, Eckstein end Winter. Now turn to the document there on the ninth sheet wherein the sentence appears including that phrase "volk community" we were discussing this morning. Whose name appears at the bottom of that document as having signed it as President of the Senate?
A. Yes.
Q. Whose name?
A. Cuhorst.
Q. Cuhorst. Now at the bottom of the similar plea on behalf of the Gypsy Winter, wherein Winter is described as a typical gypsy and his plea is refused, whose name appears there as signing as President of the Senate?
A. Cuhorst.
Q. Cuhorst?
A. Again Cuhorst.
Q. That is all.
DR. BRIEGER: May I take this witness into redirect examination?
THE PRESIDENT: Yes.
RE-DIRECT EXAMINATION BY DR. BRIEGER:
Q. What was Cuhorst's attitude towards defense counsel and what was your own?
A. When the prosecution interrogated me, I pointed out that I cannot claim that Cuhorst in strictly pragmatic matters limited the defense counsel and restrained them. I wish to have this statement, as far as it concerns the defense counsel itself, maintained. I must, however, point out in this connection that Cuhorst towards defense counsel frequently developed unpleasant habits.
For instance, if a defense counsel would become too long-winded and prolong the trial, end in that respect it would happen that controversies occurred.
I took the attitude that defense counsel should be given every latitude, whereas Cuhorst took the view that a hearing, as far as defense counsel's plea was concerned, should be short and brief and limit itself only to the essential points. Furthermore, I sometimes had the opportunity of suggesting to defendant Cuhorst as regards remarks which were made by defense counsel, which were a hidden attack on the party for instance, or might be interpreted as such, to show more generosity. That was the meaning of this remark I made which was put to me just now concerning liberalistic remarks made by defense counsel.
Q. Did Cuhorst always have such defense counsel who took their work seriously or who made particulars? What did you do to those?
A. As I said before, Cuhorst wanted concise and effectual pleas and he was always accessible to such pleas, although when people became too long-winded he lost his patience. The most important thing to him was to have the trial as concise as possible, to go into all essential matters but have it as brief as possible.
Q. You said just now that you had heard that Cuhorst only under the law against Poles had sentenced to Pole to death. Have you also heard that from a statement of the time or did you hear it by submission of the prosecution or how did you hear that?
A. I heard this only in the course of these trials.
Q. By whom?
A. I don't know whether I had it from defense counsel but as far as I know Mr. Einstein put this to me.
Q. Can you recall whether you have heard it from the point of view of what is known as fuehrer information?
A. I heard nothing of the fuehrer information.