THE PRESIDENT: I don't think we are greatly concerned about the other man. This case involves only the matters which relate to the defendant Cuhorst. Will you limit your testimony to that subject.
THE WITNESS: Yes Mr. President. I said already, I assumed that Cuhorst would be strong enough. He seemed to be robust enough so as not to weaken if the matter would go for a considerable time.
THE PRESIDENT: You made that clear.
THE WITNESS: I know from previous conversation with him that in connection with sentencing people for political offenses he had a rather reasonable point of view and thus I considered him the suitable man for the post as presiding judge. I spoke with him, or maybe upon my initiative my personnel referrent did so. Cuhorst was not immediately ready. He asked to be given time to think it over. He talked to me once again, and after I had told him about the background for the intended change in the person of the presiding judge he agreed to assume the post as presiding judge.
Q. Wasn't Cuhorst on such good terms with the Party and his Gauleiter that in consideration of the amount of backbone, as you said that he had, he could also expect to be supported by the Party in addition to that case, as against Berlin?
A. Cuhorst came there as an old Party Member, and therefore, so to say, as a man who had the confidence of the Party. That is when he came into the Ministry of Justice at Wuerttemberg. But for anybody he had an opportunity to look at matters more closely, it could be seen that the Gauleiter since about 1934 no longer had a very good opinion of Cuhorst. What the reason for that was, I could not say in detail. Although Cuhorst was a Gau speaker, he had no other office in the Party, as far as I know, and had no rank of any importance in the organization of political leaders. Gradually I gained the impression that he knew Cuhorst had a high position in civil service and that the Party liked to use him for propaganda purposes, but he was not too highly esteemed within the ranks of the Party. I, of course, also took that into consideration, that the Reich Ministry of Justice, that is, the Penal Division of the Reich Ministry of Justice, would possibly exert less pressure on Cuhorst because it was possible that the Ministry based itself on the assumption that in case of a conflict, Cuhorst would be supported by the Gauleiter. The relations to the Gauleiter worsened subsequently -
THE PRESIDENT: Your next question. We will proceed more expeditiously if she procedure of asking questions and answering them briefly is followed, rather than making a long address.
BY DR. BRIEGER:
Q. Witness, you mentioned that the Gauleiter did not think too much of Cuhorst. Did you mean by saying that, he didn't think too much of him as a jurist, or did you mean to say that he Gauleiter did not consider him too reliable politically? At any rate, not as far as the official policy was concerned?
A. Certainly that did not refer to the legal qualifications. The Gauleiter was not in a position to judge that. Of course I meant purely political questions.
Q. Did you also consider that at the Reich Ministry of Justice the differences between him and the Gauleiter would not be known?
A. I assumed that at the time in the Reich Ministry of Justice-
Q. Since you mentioned Cuhorst as Gaureder, may I interrupt with the following question. Did you ever have an opportunity to attend a political meeting here Cuhorst was a Gau speaker?
A. Yes, once i-
THE PRESIDENT: The answer was yes. Ask your next question.
BY DR. BRIEGER:
Q. Do you have any standards of comparison so that you could tell us whether you considered him particularly fanatical, or whether his views were just routine?
A. I do not remember the text of his speech, It was just routine.
Q. Do you know anything about if whether as a rule he spoke on mass meetings at Stuttgart or whether he preferred to speak in the open country?
A. As far as I know, Cuhorst did not speak in mass meetings, but only in simple local groups, particularly in the open country.
Q. I go to the next question. Witness, when Cuhorst took over the Special Court did he have any personal advantages in addition to being presiding judge of the Penal Senate?
A. I have to say no. He had no advantages, particularly no advantages in pay. He just got his pay as President of the Senate.
Q. Did he have as much work in the First Penal Senate as the President of the Fourth Penal Senate, and wasn't it true that he had a great deal of additional work with the Special Court?
A. The two Penal Senates had the same amount of work. Cuhorst, in fact, assumed a considerable amount of additional work. Since he could not fully do the work for both jobs, from the very beginning, from the outset I had offered him the possibility to have somebody deputize for him as presiding judge, either in the Penal Senate or in the Special Court.
Q. Since you are just speaking about the Senates, were all those judges Party members?
A. I spoke already about the Special Court. At the moment I cannot quite tell you who of the judges was active in the Penal Senate, but 1 remember two judges who were not members of the Party as long as they worked in the Penal Senate. They are not identical with those judges of the Special Court whom I mentioned yesterday.
Q. Did Cuhorst have especially good relations to the Party, to the NS Lawyers' League, to the SD, and to the police, that is especially to the Secret State Police, the Gestapo? Did he have any lateral relations to the Reich Ministry of Justice? What was his connection with the General Public Prosecutor -
THE PRESIDENT: Just a moment. This time I have been counting, and I think there are six questions all in one there. Ask a question briefly and let him answer it, and then ask another question.
BY DR. BRIEGER:
Q. Did Cuhorst have particularly good relations to the Party? You have already answered that. To the NS Jurists' League?
A. The same applies here which I have said about his relations to the Gauleiter.
Q. Do you know anything about the fact whether he had relations to the so-called SD, Security Service, and of what kind, of what nature?
A. Of relations of that kind nothing is known to me.
Q. Do you happen to know anything about the relation she might have had to the police, especially to the Gestapo?
A. I do not know anything about any close relations that Cuhorst might have had to the Secret State Police.
Q. Did he have any lateral relations to the Reich Ministry of Justice? By that I mean of an inofficial nature?
A. No, I do not know anything about that, either.
Q. Could you tell us something about official connections with the Reich Ministry of Justice?
A. I believe that Cuhorst, because of extraordinary circumstances, due to his membership in the Party, he had come into the high position of a President of a Senate, within the Reich Ministry of Justice was not greatly appreciated from the very outset.
Q. What was his connection to the General Public Prosecutor?
A. Between the General Public Prosecutor and Cuhorst in addition to the most necessary official relations, there were no further relations.
Q. What was his relation to the Senior Public Prosecutor? I mean Senior Public Prosecutor Dr. Link, who frequently is mentioned in documents submitted, and I remind you of the indictment against Skowron.
A. As for the Senior Public Prosecutor Link, who was at the same time the Chief of the Prosecution with the Special Court, his relations to him, the same as mine to him; were definitely bad, definitely poor.
Q. Can you tell us what that was based upon?
A. I believe that cannot be said with just a few words. The Senior Public Prosecutor Link, from the outset, went with the Party. As for Cuhorst, although he was a convinced National Socialist, no doubt he did not do that. Also, there were various matters in the personal attitude of the Senior Public Prosecutor Link. I don't know whether it is really necessary to discuss that here in detail.
Q. The Senior Public Prosecutor Link is said to have organized meetings, a get-togethers which Cuhorst thought were not in good taste, and Cuhorst had even almost prohibited his judges from attending; I need not discuss details here. Can you tell us whether that is correct?
A. That Cuhorst disapproved of these get-togethers which defense counsel mentions, that I know. Whether he advised his judges against attending, that I could not tell.
Q Do you know any particulars as to how the burden of work and the actual work of Cuhorst was until he was drafted?
A That can be said very briefly. The burden which I have mentioned before already increased in the course of the years, especially since the sphere of competence of the Special Court was extended by assigning more judges.
I was in a position to help some, but due to the shortage of personnel, it could not be effective enough to balance the amount of work.
Q What was the official personal relation of Cuhorst to the other members of the Senate and the Special Court?
A I can say that the relations between Cuhorst, as presiding judge, and the members of the Senate and the Special Court were good and friendly, and some of the gentlemen have confirmed that to me.
Q Did Dr. Rieger, who was the immediate superior of Cuhorst as President of the District Court of Appeals, did he ever speak to you about it?
A I can't remember that.
Q The judges who worked with Cuhorst, were they subordinate to him officially, was he their superior, or what was the relationship between them?
A Cuhorst was not the disciplinary official superior of the judges. He could not give them any technical instructions. He was the primus inter pares. His voice had the same weight as that of any other member of the Senate.
Q When you speak about "vote", do you mean to say that the vote was taken at the deliberation?
A Yes, of course. A vote was taken. The so-called leadership principle did not count there -- the Fuehrerprinzip.
Q But that does not mean that one had to take a vote when it was quite apparent the gentlemen were unanimous?
A Yes, of course. That is what I think it was. I was not present during the deliberations, of course.
Q A witness has said that Dr. Wagner outvoted Cuhorst and that therefore Cuhorst saw to it that Dr. Wagner was transferred. Can you say anything concerning this point?
A Whether Dr. Wagner outvoted Cuhorst, I do not know. It would have been necessary, of course, that another member of the Special Court joined Wagner in order to effect that. This is the way it was with Wagner. Wagner, whom I personally appreciated highly, is a jurist of great knowledge. The Suebian official has an inclination to detail and to be too methodical, and these qualities were highly developed with Wagner. He also was inclined to stick firmly to his conviction and was not open to reason sometimes. Before Wagner was assigned to the Special Court, he had been reporting magistrate in a large trial concerning fraud before a penal chamber.
THE PRESIDENT: The question that was asked you was, first, relative to the nature of the disagreement between Cuhorst and Wagner, and second, whether the defendant Cuhorst took steps to get Wagner removed or transferred.
Will you limit your answer to those two points?
BY DR. BRIEGER:
Q Witness, I believe that you have understood me correctly, although I didn't say that. I would appreciate if you could give me details, but I will put specific questions to you. Do you happen to know whether Dr. Wagner had any differences of opinion with other presiding judges?
A Certainly; for the reasons mentioned before.
THE PRESIDENT: We are not concerned with that. We are not going to try Wagner or the other judges with whom he had disagreements.
BY DR. BRIEGER:
Q Do you happen to know anything as to whether it is true that Wagner was not used as a judge all the time, but he was assigned to an administrative position, and how did it come to it?
A During the time of the so-called total war effort, I had the order to put at the disposal of the Labor office, 67 per cent of my entire personnel, and that in four groups. At the time of the first group, the presiding judge of the local court at Stuttgart, where Wagner was working at that time, put Wagner on the first list.
THE PRESIDENT: The Tribunal has suggested and advised and cautioned; it will now direct. You will follow the instructions which I have given you.
DR. BRIEGER: I certainly will, Your Honor.
THE PRESIDENT: You will do so and do it now. Limit these answers to the matters which relate to Cuhorst. If you think there is something which is relevant to the defense of Cuhorst in his connection with Wagner, ask him specifically about that connection between those two men; and if you do not, then pass on to something else. Just go ahead and ask a question. You understand our instructions?
DR. BRIEGER: Yes.
BY DR. BRIEGER:
Q Are you in a position to judge the work of Cuhorst as a judge, particularly whether he applied the laws?
A Cuhorst, in my opinion, was quite able to fulfill his task as a judge. I consider it a matter of course that he applied the existing laws and stuck to them.
Q Did you frequently or at least occasionally attend sessions under Cuhorst so that you could gain an impression of his manner of conducting a trial?
AAs far as I remember, only once -- that may have been in 1938 -- I attended a meeting of the Special Court with Cuhorst presiding. That was a full session. I did so because I counted on he possibility that in this case the Gauleiter or the SS could make an attempt to help the defendant, an SS Sturmfuehrer who had killed a member of the police, and they could save him from a just punishment. Cuhorst conducted this, at any rate, delicate proceedings in a manner which left no objection.
Later, I only attended small parts of special court trials, and on these occasions I noticed a certain nervousness on the part of Cuhorst and sharp remarks which ho made against the defendants occasionally.
Q Do you have any reason to assume, or wouldn't you assume that the manner of conducting a trial finally reflected in the sentence?
A No, I don't think so.
Q Witness, you just spoke about a certain definite case. Do you mean the case Reissing which has already been discussed by Cuhorst in the witness stand?
A Yes.
Q Were there ever any complaints submitted to you or any unofficial objections to you or your personal referent that Cuhorst limited the defense or did not proceed in accordance with the rules of procedure? Would you please comment on that?
A Never were any such complaints made to me, neither by defendants -- which one could understand -nor by defense counsel or witnesses or prosecutors. One time only, but that was long ago, an attorney came to see me. He told me he was a defense counsel in a case before the Special Court, and Cuhorst had let him have the files for a certain amount of time, but he would like to have an extension for a reason -- which I no longer remember today -- he wanted me to exert influence on Cuhorst in that direction.
I told him that I would not interfere with the authority of the presiding judge in a case of that kind. In addition to that, I was not even the immediate superior of Cuhorst. That was the President of the District Court. That conversation did not have the character of a complaint to the effect that Cuhorst frequently or regularly made it difficult for defense counsel to survey the files.
Q Were you the competent authority to receive such complaints?
A Yes, of course. If there had been a complaint, I would have followed it up without hesitation. I remember in a different case with one of the deputies of Cuhorst, another temporary presiding judge of a Special Court, there I was told -- not in the form of a formal complaint -that the presiding judge in question had that bad habit in his trials. I followed it up immediately, and I would have done the same if in the case of Cuhorst a complaint would have been lodged with me.
Q Did any defense counsel ever come to you complaining about Cuhorst from a different point of view? By that I mean, that his sentences were too severe?
A That question I can answer in the negative, without doubt.
Q Did you or your personal referent have sufficient contact with defense counsel that it would not have been difficult for you to hear such criticism; in other words, that these gentlemen would have had the courage to go to you and tell you about it?
A To come to me, that didn't take much courage. I was at all times at the disposal of all officials and defense counsel. The same thing with my personal referent. Both of us had so much contact that we would have certainly found out of any irregularities or illegalities.
Q Witness, I should like to refer to some statistical files. I have already put the material to you, and ask you to discuss the proportion of death sentences in Stuttgart to those pronounced by other special courts. I also gave you the Reich Justice Calendar which contains the numbers of inhabitants and also those with the Protectorate. Do you have that in front of you?
A Yes, I do. From that, I can see the population figures of the entire Reich area and of the District Court of Appeals of Stuttgart. In the Document NG-252, which was put before me, I also find the total number of death sentences pronounced, but in that extensive trial, I cannot find the number of death sentences in Wuerttemberg.
Q Therefore you are not in a position to draw any conclusions?
A Personally, I always was of the opinion, and am of the opinion today, that the number of death sentences at Stuttgart had to be well below the Reich average, but since I am lacking the exact figure of death sentences for Wuerttemberg, I cannot prove it.
Q May I base myself on the assumption that in somewhat regular intervals you were asked to go to the Reich Ministry of Justice to Berlin to attend conferences of the chief presidents under the chairmanship of the Minister or the Under-Secretary, and that on that occasion, probably unofficially, in an exchange of information with your colleagues, you were in a position to orient yourself about these things, is that correct? Is my assumption correct?
A Yes. On account of continuous objections and reproaches made by the Penal Division of the Reich Ministry of Justice, of course I became interested in the conditions in other districts, and from conversations of that kind; and then later before the catastrophe, from conversations with judges who had come from already occupied territories to Wuerttemberg; also, from a conversation with Minister Guertner, I had gained the impression; and then first of all, on account of these continuous objections stating that the practice of Stuttgart was too lenient, I gained the impression that the practice and sentences in Stuttgart, in relation to the practices of other districts, had to be called relatively lenient.
Q Did you arrive at that conviction on the basis of a definite directive or a decree of the Reich Ministry of Justice where a number of Cuhorst sentences were criticized as being too lenient? You know what directive I am referring to?
A Well, there wasn't only one directive of that kind but the objections were made and criticisms were voiced in great number -- partly in individual cases, partly in collective directives where a dozen or more cases were mentioned and were quoted, which in the opinion of the Reich Minister of Justice had been decided too lenient. The last directive of that kind, which I remember, must be of summer 1944, and that referred to the penal senate, not the special court.
About 12 cases are listed there. If I remember correctly, the majority concerned Cuhorst.
Q Did you consider yourself duty-bound to notify Cuhorst as quickly as possible of such directives if they concerned him, and did he consider it important?
A Of course, it was in my line of duty to bring such objections to the attention of the persons concerned; but as far as individual cases were concerned, I frequently refrained from doing so because I knew Mr. Cuhorst's attitude well enough. Cuhorst disregarded such criticisms. In the course of time, he got so angry about these matters, that at any rate in the end anything of that nature which came from the Reich Ministry of Justice got him into a frenzy.
Q In spite of that, wouldn't you consider it right to say that Cuhorst therefore saw himself obliged to become more severe or that he rather decided that he would stick to his old course?
A The latter is certainly correct.
Q Witness, in discussing these matters, we have already arrived at the same time at discussing the so-called guidance. May I ask you what did you do in accordance with directives of the Reich Ministry of Justice concerning guidance; in other words, did you organize that guidance for your district?
A That guidance, as it was desired by the Reich Ministry of Justice, was not given consideration by me for my district. By incidentals in my career, I had been separated from the direct judge's practice, but I considered myself a judge at all times. I became a judge because the independent position of the judge, which is only subordinate to the law, was held in high esteem by me, and it was not compatible with my conscience that I should contribute to endanger that independence.
Q Do I understand you correctly, witness, that by independent practice of the judge, you mean to say that it is not right to influence that practice of the judge by administrative directives but that on the other hand these judges are subordinate only to the decisions or bound only by the decisions of the Reich Supreme Court?
A Certainly, undoubtedly as far as the decisions of the Reich Supreme Court serve as precedence.
Q I want to refer to another matter coming from Berlin; that is to say, the desire of the Reich Ministry of Justice that prosecutors and judges should get together before the sentence being pronounced in order to discuss matters of the demand for sentence and sentence expected. What can you say in that connection?
A Details of that decree which was actually issued are no longer available to me from memory, nor do I know whether that decree went only to the General Public Prosecutor or also to the President of District Courts of Appeal. If the letter is the case, then I have received that decree, and as it was my duty, brought it to the attention of the judge. The meaning of that decree, as it is in my recollection, was that too great differences between demand for sentence and sentence itself should be avoided if at all possible; that therefore the Public Prosecutor under certain circumstances could be induced to, after discussing it with the General Public Prosecutor or the Senior Public Prosecutor, mitigate a demand for sentence which might have been too severe on his part.
Q. If before 1933 a judge or you as his deputy approached a man of the prosecution, especially the general public prosecutor, with the question what command for sentence was to be expected, would these gentlemen have considered that they shouldn't answer?
A. I believe before that time one would never have thought of it, and whether the general public prosecutor in such a case would have answered me, I don't know.
Q. Do you happen to know whether before 1933 that was prohibited at all; or, would you assume so?
A. Whether that was an explicit prohibition, I don't know; but it certainly wasn't done.
Q. Were there any specific tendencies, inclinations, among the judges in Wuerttemberg concerning the sentencing of foreigners, Jews or gypsies or, were they agreed upon -- by tendencies or inclinations I mean in the first place such as extermination; but, others also.
A. That among the judges of Wuerttemberg such inclinations existed, I do not believe; that any agreements were made in that direction I consider quite impossible.
Q. Witness, do you happen to know, or, did Mr. Cuhorst discuss with you, whether he or his associate judges found it easy to pronounce death sentences?
A. Various judges of the Wuerttemberg special court upon one occasion or another told me how hard it was for them to decide on death sentences. Cuhorst also at least one time discussed with me how he suffered from these matters in connection with death sentences. That was probably at the time when he took sick leave, or shortly before.
Q. Were these matters, in part, a motive for Cuhorst to ask for a different job?
A. I should assume so. Cuhorst at various times told me that he would like to get away from the special court; he had done that for so many years and he had enough of it.
Q. Did he express that wish also in connection with the continued guidance?
A. That certainly also played a part.
Q. Now, witness, I want to ask you did Cuhorst show any legal preferences for party members before the court; or, what was his general attitude when confronted with acts committed by party members?
A. I said before already that Cuhorst was a convinced national socialist; but, he did not cover up for criminal acts committed by party members -- not at all. I know that frequently he voiced criticism when in his opinion the prosecution, if it was a case -let's say of corruption by party members failed to file the indictment. Various cases are known to me where during the trial, party officials who had become guilty of such acts, were treated very harshly by him.
Q. On this occasion I should like to put a question of fundamental importance to you, witness. You said, if I understood you correctly, that Cuhorst showed great severity when cases like that came before him, On the other hand, did he have the possibility, as a judge, to exert any influence upon the prosecution prosecuting a case; or, am I right to assume that was exclusively a right of the prosecution and he had no influence upon them.
A. That was an exclusive matter for the prosecution authorities.
THE PRESIDENT: That is a sufficient answer; we have heard it before.
DR. BRIEGER: I didn't understand your Honor.
THE PRESIDENT: How was the nullity plea and extraordinary objection applied in Stuttgart?
A. As far as I know only against the defendant.
THE PRESIDENT: Was the extraordinary objection employed in cases before the special court?
A. Cases of the special court and of the penal senate, Your Honor.
THE PRESIDENT: I am not referring to the nullity pleas, but to the special extraordinary objection.
A. Mr. President, in practice I never had anything to do with these matters.
THE PRESIDENT: I see; all right.
A. Details, therefore, are not known to me about it.
BY DR. BRIEGER:
Q. Were there any cases which had been tried before the special court Stuttgart which were transferred to other special courts for a second trial -- and why?
A. That happened quite frequently. As I would like to assume, the reason was that Stuttgart was considered more lenient than other special courts, and one expected that if a second trial would take place in Stuttgart again, the results would be unsatisfactory.
Q. If I understand you correctly then, it never occurred that cases from other courts were transferred to Stuttgart for a second trial; that the reverse case occurred frequently.
A. Yes.
Q. Is it true that Cuhorst already in 1940 was drafted by the armed forces and, without his knowledge and against his will, shortly before his transfer to the front, he was declared indispensable -and why?
A. I have to say yes. I had the instructions that I should hold these officials as indispensable as long as possible.
Q. In 1943 was Cuhorst on sick leave for three months?
A. For a considerable time, for reason of nervous disturbances, Cuhorst was on sick leave. It may have been three months.
Q. Is it true that in 1942, that is one year before the disciplinary proceedings by the party against Cuhorst, is it true that Dr. Glueck, as Gau leader of the Reich Jurists League, discussed the reasons of that disciplinary case against Cuhorst; and, what was the point of view of Dr. Glueck in this connection?
A. On the occasion of the visit of the then under secretary Rothenberger in Stuttgart, a conference took place concerning personnel matters in my office.
Upon the request of Mr. Rothenberger, the Gau leader of the National Socialist Jurists League, Justizrat Glueck was present. During that conference I reported that Cuhorst desired to become president of the District Court at Ravensburg. Thereupon, Glueck in a very brusque manner stated immediately that the Gauleiter would never agree to the appointment of Cuhorst for the position of District Court President at Ravensburg. It is known to me that Cuhorst was appointed president of a district court in another area, but that question was not discussed at the time because it was not my district.
Q. By whom and why was a disciplinary proceeding of the party court institute against Cuhorst in 1943; and what was the purpose of that?
A. That party disciplinary proceeding before the Gau court was initiated by the Gauleiter; the purpose was the exclusion of Cuhorst from the NSDAP.
Q. Did you attend the party disciplinary proceeding against Cuhorst; and, where did this take place?
A. The Gau Court on its own afforded me an opportunity to attend the proceedings and on account of the great importance the exclusion from the party would have, I took advantage of that. The proceedings took place in the large hall of the former Wuerttemberg Diet.
Q. In that trial did various Kreisleiters, a SD member and an attorney from Munich appear as witnesses against Cuhorst?
A. I remember two Kreisleiters as witnesses, and I remember there was an SD official; also an attorney from out of town.
Q. Did Cuhorst defend himself -- and with what success?
A. Cuhorst defended himself, and with the energy with which he was known for.
Q. The exclusion from the party would have resulted in Cuhorst losing his position.
A. I have to assume that.
Q. Would you assume that all these matters contributed essentially to bring Cuhorst into a condition of nervous irritation which must have had its effect on his activity as a judge?
A. That certainly contributed to it.
Q. How and why in the summer of 1944 did Cuhorst leave his position as judge; what was your opinion at the time?
A. In the middle of September, 1944, I received the brief instructions from the Reich Ministry of Justice to put Cuhorst at the disposal of the armed forces. The reason was not contained in the directive, but I assumed, as a matter of course, that the reason was the general dissatisfaction of the Reich Ministry of Justice with the practices and the sentences of the special court Stuttgart; and for that, first of all, Cuhorst was responsible.
THE PRESIDENT: The time has arrived for our morning recess of fifteen minutes.
(A recess was taken.)