As to count three the problem is considerably more complicated. There are many affidavits and much testimony in the record as to the defendant’s character as a fanatical Nazi and a ruthless judge. There is also much evidence as to the arbitrary, unfair, and unjudicial manner in which he conducted his trials. Some of the evidence against him was weakened on cross-examination, but the general picture given of him as such a judge is one which the Tribunal accepts.
The cases to be considered as connecting him with crimes established in this case under count three involve the question as to whether the evidence establishes his connection with the persecution of Poles. In this connection we have given particular consideration to the Skowron and Pietra cases.
Unfortunately the records of the Special Court at Stuttgart were destroyed at the time that the Palace of Justice in Stuttgart was burned. There are therefore no records available as to the cases tried by Cuhorst.
From the evidence available, this Tribunal does not consider that it can say beyond a reasonable doubt that the defendant was guilty of inflicting the punishments which he imposed on racial grounds or that it can say beyond a reasonable doubt that he used the discriminatory provisions of the decree against Poles and Jews to the prejudice of the Poles whom he tried.
While the defendant Cuhorst followed a misguided fanaticism, certain things can be said in his favor. He was severely criticized for his leniency by the defendant Klemm in a number of cases which he tried. He was tried by a Party court for statements considered to reflect upon the Party, which he made in a trial involving Party officials. Subsequently he was relieved as a judge in Stuttgart because he apparently did not conform to what the State and Party demanded of a judge.
This Tribunal does not consider itself commissioned to try the conscience of a man or to condemn a man merely for a course of conduct foreign to its own conception of the law, it is limited to the evidence before it as to the commission of certain alleged offenses. Upon the evidence before it, it is the judgment of this Tribunal that the defendant Cuhorst has not been proved guilty beyond a reasonable doubt of the crimes alleged and that he be, therefore, acquitted on the charges against him.
THE DEFENDANT OESCHEY
The defendant Oeschey joined the NSDAP on 1 December 1931. He was war representative for the Gau Main Office for legal aid and legal advice. After filling other offices he was appointed on 1 January 1939 to the office of senior judge of the district court at Nuernberg, which office he held until 1 April 1941. He was then appointed district court director at the same court. He was a presiding judge of the Special Court in Nuernberg.
By decree of 30 July 1940 of the Reich legal office of the NSDAP, he was provisionally commissioned with the direction of the legal office of the NSDAP in the Franconia Gau, and the leadership of the Franconia Gau in the NSRB, the National Socialist Lawyers’ League. He carried out his duties in the Leadership Corps of the Party at the same time that he was serving as a judge of the Special Court. His personnel file in the Reich Ministry of Justice shows that he was highly recommended for his Party reliability by at least five different public officials.
He was drafted into the army in February 1945, and remained in the army until the end of the war; however, he was released for the period from 4 April until 14 April 1945, during which time he functioned as chairman of the civilian court martial at Nuernberg. The record discloses that he and the defendant Rothaug were the guiding, if not controlling, spirits of the Special Court at Nuernberg, which was known as the most brutal of the special courts in Germany.