THE PRESIDENT: It is received.
DR. HAENSEL: Document 65 on page 64, the Lange affidavit, becomes Exhibit 70.
THE PRESIDENT: It is received.
DR. HAENSEL: For identification only I offer Exhibit 70, which is my Document 68 and is an affidavit -- I beg your pardon, it's Exhibit 71. My document number 68. This is an affidavit by Hans Heinrich Schulz. I am offering it for identification only because I intended to call Schulz as a witness but this depends on the possibility of bringing him to Nuernberg. He has a serious war injury but I hope I'll be successful in getting him.
THE PRESIDENT: What page?
DR. HAENSEL: Page 74.
THE PRESIDENT: It will be marked for identification only. Exhibit 71.
MR. LAFQLLETTE: Your Honor, I suggest that the document be admitted. I have no objection to the exhibit being received. If the witness turns up, we could deal with that problem later.
THE PRESIDENT: Very well, it will be received in evidence.
DR. HAENSEL: Very well, I will offer it as an exhibit then.
THE PRESIDENT: If the witness appears, we will disregard the affidavit.
DR. HAENSEL: As Exhibit 73 I offer my document -- I beg your pardon -- I will deal with something else first. I had already reserved the exhibit number 48 for the copy of a letter of the General Prosecutor of Hamm. That exhibit number 48 I had reserved. The translation was not ready at the time but as Exhibit 48 I am offering it definitely now.
THE PRESIDENT: What document number is that?
DR. HAENSEL: It's Document 71 from Book 4.
THE PRESIDENT: Page what?
DR. HAENSEL: Page 16.
THE PRESIDENT: The exhibit is received. What about Exhibit 46?
DR. HAENSEL: 48?
THE PRESIDENT: You have a whole list of exhibits.
DR. HAENSEL: 46 is Engelmann. The Engelmann affidavit - that was 46.
THE PRESIDENT: Those were marked for identification only.
DR. HAENSEL: No, that was received. I first offered it for identification only and then at the end of my presentation of documents it was received.
THE PRESIDENT: Exhibits from 12 on, Mr. Secretary.
DR. HAENSEL: The exhibits from 12 through 53 were introduced for identification only and with a few exceptions at the end of my presentation of evidence they were received. One of those exceptions was No. 48.
THE PRESIDENT: Yes, 48 is received now.
DR. EAENSEL: Document 72, the Barchfeld affidavit in Document Book 4 on page 18, I offer as Exhibit 72.
THE PRESIDENT: Have we had Document Book 4?
DR. HAENSEL: Yes, there's a translation of Document Book 4. The number of the document is 72 and the exhibit number also is 72.
THE PRESIDENT: Is that the affidavit of von Barchfeld?
DR. HAENSEL: Yes, von Barchfeld.
THE PRESIDENT: Received.
DR. HAENSEL: The next document which is the last document in this book, is No. 73 and the exhibit number under which I offer it is also 73. This is an extract from the magazine "Die Welt", which is published in Hamburg. 73.
THE PRESIDENT: Received.
DR. HAENSEL: I have now introduced all of the documents which I have received from the translation branch. There is one more small document book which I shall introduce as soon as the translations are completed but I would like to use this opportunity--
THE PRESIDENT: Just a moment, please.
DR. HAENSEL: --to submit to the Tribunal a trial brief. It con tains legal explanations-
THE PRESIDENT: Just a moment. Have you offered your document numbers 69 and 70 in Book 4?
DR. HAENSEL: I did not introduce 69 and 70 today. I should like to reserve those numbers for me because the signatures were not certified in the way requested by the Tribunal and that in spite of several requests.
THE PRESIDENT: Well, we will mark Document 69 for Identification Exhibit 74 and Document 70 we will mark for Identification 75.
DR. HAENSEL: Yes. I have to submit a little trial brief which contains a little explanation concerning the identification of Law 10, Article 2-1-D, "Membership in Criminal Organizations". It summarizes literature and states a theory as to what is to be interpreted as "knowledge" within the meaning of this provision.
THE PRESIDENT: You may hand your brief to the Tribunal. It need not be marked as an exhibit.
DR. HAENSEL: No, I don't believe it's necessary but if the Tribunal wishes I can give it an exhibit number.
THE PRESIDENT: No, no.
DR. HAENSEL: I have a request to make following the statement made here by my colleague Dr. Schilf. The Tribunal authorized myself concerning the diary notes by Mr. Guertner made in 1934 until 1940 and I would be glad if Mr. LaFollette would tell us whether in the meantime he obtained them and would be able to make them available to me.
THE PRESIDENT: Why don't you discuss them outside with the prosecution unless there's some discussion to be taken up in court. There's no use taking up time here unless we have a written motion. We have no notion what you desire the Tribunal to do.
DR. HAENSEL: I shall discuss the matter elsewhere. I have concluded for today. I will reserve the right of producing the other documents which I mentioned.
THE PRESIDENT: Of course, counsel understands that the original order approving the use of a document or of a witness is a matter for the Tribunal.
That, we understand, has already been taken care of and the question now is how to get the machinery to work. That's within the scope of the Tribunal. We will do whatever we can to assist you, however.
DR. HAENSEL: I shall do my utmost.
DR. SCHUBERT: If it please the Court, I have finished. It's not yet my turn to start my defense for Dr. Oeschey because my colleague Brieger still has to finish the Cuhorst case but I am in a position, if the Tribunal agrees, so as to make use of the time to submit my document Book 1.
THE PRESIDENT: The Tribunal agrees.
DR. SCHUBERT: In my Document Book I there are only affidavits and without any explanation I am going to introduce them now and later I shall refer to them. For the moment I offer Document No. 1 as Exhibit 1, Document 2 as Exhibit 2, Document 9 as Exhibit 3? Document 44 as Exhibit 4, Document 57 as Exhibit 5, Document 56 as Exhibit 6, Document 177 as Exhibit 7, Document 178 as Exhibit 8, Document 25 as Exhibit 9. The Exhibit Document 65 I am leaving out. I do not intend to introduce it because I examined the affiant Denzler here before the Tribunal, and Document No. 3 wherefore becomes Exhibit 10, Document 192 is Exhibit 11; Document 4, Exhibit 12; Document 69, Exhibit 13; "ocument 193, Exhibit 14; Document 29, Exhibit 15; Document 179, Exhibit 16; Document 180, Exhibit 17; Document 58, Exhibit 18; Document 84, Exhibit 19; Document, 67, Exhibit 20; Document 72, Exhibit 21; Document 5, Exhibit 22; Document 6, Exhibit. 23; Document 23, Exhibit 24; Document 59, Exhibit 25; Document 60, Exhibit 26; Document 61, Exhibit 27; Document 85, Exhibit 28; and Document 191, Exhibit 29.
THE PRESIDENT: There being no objection Exhibits 1 to 29, inclusive, are received in evidence. The Secretary General reports he has two other books for your client.
DR. SCHUBERT: May it please the Court, all I know is there is another Document Book 4. My Document Books 3, 4 and 5 contained documents which deal with the individual cases with which the defendant Oeschey has been charged. It is of importance to me to submit those document books all together as otherwise the context would be disrupted. I should be glad to interduce my Document Book 2 which contains things of a general nature but unfortunately the translation division has not returned that book to me. I hope that I shall get it in the next few days. I don't think the Secretary General has book two there.
THE PRESIDENT: You are unable to proceed with any of the books which he has? Are there any books which the Secretary General has which you can proceed with at this time?
THE SECRETARY GENERAL: I have Supplements 5 and 4. Supplement 5, Book 4.
THE PRESIDENT: Book 4, and supplement 5. Can you use those?
DR. SCHUBERT: That is correct, Supplement 5 is available now, but the supplement just contains on affidavit and as I pointed out before book 4 would be taken completely out of its context if not introduced together with Books 3 and 5. May I finish for today, then?
THE PRESIDENT: What other document books have you, Mr. Secretary?
THE SECRETARY GENERAL: I have Book 5, Mettgenberg's supplement and Petersen's supplement.
THE PRESIDENT: Have we any attorneys to go with these supplement books?
THE SECRETARY GENERAL: That's all I have.
THE PRESIDENT: Petersen?
THE SECRETARY GENERAL: Petersen and Mettgenberg.
THE PRESIDENT: Is Mr. Schilf available? Petersen's counsel, can he present ----
DR. SCHUBERT: Your Honor, I can try and find Mr. Schilf. I only think he has gone across to his office.
THE PRESIDENT: Let the attorney for Petersen and the attorney for Mettgenberg be notified to appear and present their document books. Are there any books for the defendant Nebalung?
THE SECRETARY GENERAL No.
THE PRESIDENT: The Tribunal will recess until 3:15.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
DR. SCHILF: Dr. Schilf for Dr. Mettgenberg. May it please the Court, I have just found out that concerning the document books on behalf of Dr. Mettgenberg, all the Secretary General has available in the English text is one book, and that is Book 5. I would like to ask you to excuse me from producing documents just from Book 5, particularly as that would only take me a few minutes, and I would not like to take it out of its order. I have given exhibit numbers to all my document books. Document book 5 begins with 31. Unfortunately, therefore, I cannot today introduce my remaining documents for Dr. Mettgenberg. It would be a very inadequate method if I were to start on Book 5 now.
THE PRESIDENT: Very well.-Dr. Aschenauer.
DR. ASCHNAUER: Dr. Aschenauer for the Defendant Petersen. Your Honor, up to now I have only received a Supplement volume from the Translation Department. These are three supplemental documents. If you wish me to do so I can now introduce those three supplemental documents, As other volumes have been with the Translation Department since the 24th of July, but I haven't received them back yet.
THE PRESIDENT: You may present what ever you have.
DR. ASCHENAUER: I now want to put in the Petersen document 138. May I start with that number for the reason that my document Cook is arranged in numbers. This is an affidavit by Dr. Rudolf Lehmann. The subject of this affidavit is "The Problem of the German Jurist in the Protectorate of Bohemia and Moravia." As document Petersen 139...
THE PRESIDENT: Just a moment. We will give document 138 Exhibit No. 1?
DR. ASCHNEIDER: 138?
THE PRESIDENT: As Exhibit 1, or do you want that marked Exhibit 138?
DR. ASCHENAUER: AS Exhibit 138.
THE PRESIDENT: All right. What is this? Is this your only supplement?
DR. ASCHENAUER: No, there will be one more supplement document, but that isn't ready yet.
THE PRESIDENT: Well, we'll mark this supplement No. 1 then.
DR. ASCHENAUER: Yes, that is all right with me.
THE PRESIDENT: Exhibit 138 is received.
DR. ASCHENAUER: As supplemental document No. 2 I offer an affidavit by Carl Leo Kuelp. I would ask you to receive it.
THE PRESIDENT: That has the number Document 140?
DR. ASCHENAUER: Yes, yes.
THE PRESIDENT: Well, it's wrong then. Your index shows Document 138 as affidavit by Boetticher and Kuelp is 140.
DR. ASCHENAUER: Yes, yes. I do not intend to put in the affidavit without document No. 139.
THE PRESIDENT: Is there any objection to your numbering Document 138 as your Exhibit 1? I don't see any objection to that. And we are informed that the Archive desires that the exhibits be numbered in order, commencing with No. 1. It won't affect the order in which you offer them.
DR. ASCHENAUER: Well, that would mean that my next document will be offered as my No. 4, and all I intend to put in today are three documents.
THE PRESIDENT: We're concerned with the exhibit number, which differs from the document number. We should like to number your document, which is 138, by the Exhibit No. of 1. Have you any objection?
DR. ASCHENAUER: No.
THE PRESIDENT: Document 138 is received as Exhibit 1. Document 140, on Page 5, is received as Exhibit 2.
DR. ASCHENAUER: Document No. 141 contains extracts from the American Army Basic Field Manual, and I'm offering it as Exhibit No. 3.
THE PRESIDENT: The exhibit is received. That's all you have?
DR. ASCHENAUER: Yes, that's all.
THE PRESIDENT: Have we any other documents available? Well, in view of the importance of the occasion, which has required this irregularity, we will express no complaint. We will recess until Monday morning at 9:30.
THE MARSHAL: The Tribunal will be in recess until Monday morning at 9:30.
(THE TRIBUNAL RECESSED AT 1530, to RESCUE SESSION MONDAY MORNING, 8 SEPTEMBER 1947, AT 0930)
Official Transcript of American Military Tribunal III in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 8 September 1947, 0930-1630, The Honorable James T. Brand, Presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal III. Military Tribunal III is now in Session. God save the United States of America and this Honorable Tribunal.
There will be order in the court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please your Honor, all the defendants are present in the courtroom.
THE PRESIDENT: Let the notation be made. The Tribunal is somewhat uncertain as to the course of procedure this morning. We are advised that Dr. Brieger will not be here until ten o'clock. Do any of counsel who are present have any documents which they would like to offer in the meantime?
MR. LAFOLLETTE: The Prosecution has three.
THE PRESIDENT: Very well.
MR. LAFOLLETTE: May it please your Honors, first I want to formally offer and distribute Exhibit 558 which is NG-2335, the Ludwig affidavit, which was identified during the Rothaug cross examination. I have it now for distribution in English and German.
THE PRESIDENT: It was marked for identification, was it?
MR. LAFOLLETTE: It was marked for identification Exhibit 558, your Honor.
THE PRESIDENT: Exhibit 558, NG-2335, is received.
MR. LAFOLLETTE: Now Exhibit 559 marked for identification during the cross examination of the Defendant Rothaug, which is NG-2364. That is excerpts from the case file against Rosa Heubeck and others. I send that out for distribution in English and German.
THE PRESIDENT: The exhibit is received as Exhibit 559.
MR. LAFOLLETTE: While the Court is looking, may I use the microphone to inquire of defense counsel: Is any defense counsel present authorized to act for Dr. Aschenauer in his absence? If not, I would withhold it. May I proceed?
The Prosecution offers in evidence, as Prosecution Exhibit 579, document NG-2332 which is a declaration in lieu of oath of Karl Friederich von Oppenheim. This was discussed during the cross examination of the Defendant Rothaug. At that time, as I was advised, its sufficiency as an affidavit had not been established. Mr. Wooleyhan advised the Tribunal that he would later offer it. I think maybe Dr. Koessl has an objection.
DR. KOESSL: Koessl for the Defendant Rothaug. I object to the introduction of this affidavit because the form of it is not in accordance with the regulations. Neither the introduction is in accordance with the rules nor is the end. Therefore, I object to the submission of this affidavit.
MR. LAFOLLETTE: If your honors please, if the Court will look at the first paragraph, the Tribunal will determine that the opening paragraph is not in the express language of the rule. However, the rule covers a declaration in lieu of oath. This declaration was taken before Heinrich Decker, a notary public. Also the sense of the substance of the obligation of the oath is set out in the first paragraph. I am aware of the fact that because from time to time the prosecution has waived strict compliance, that is not a precedent but I ask the court to permit this to be introduced into evidence, first, because it is duly sworn to; second, because even if it were not under oath, the substance of the rule is stated in the first paragraph.
If Your Honor please, there isn't any question about translation. The translation is correct. I understand the German says "Certified."
THE PRESIDENT: It appears that the exhibit is not in the form required by the rules, not sworn to.
MR. LAFOLLETTE: May it be given a number and shown as rejected, your Honor?
THE PRESIDENT: Yes.
MR. LAFOLLETTE: I didn't quite understand. Dr. Doetzer, do you feel you are authorized to act for Dr. Aschenauer or do you feel you are authorized to act for Dr. Aschenauer or do you feel I should wait until he appears?
DA. DOETZER: Your Honor, I am not in a position to speak for Dr. Aschenauer in a general way, but I am authorized this morning to ask the Tribunal to excuse Defendant Petersen from further attendance at this session because he is suffering from Furunculosis.
THE PRESIDENT: At the defendant's request, through his authorized attorney, the defendant may be excused from the session today. We have been informed as to his position.
DR. DOETZER: Thank you, your Honor.
MR. LAFOLLETTE: In view of the fact also that the defendant Petersen is not represented by counsel I shall not offer the next document.
THE PRESIDENT: We are informed by the Secretary-General that he is in possession of Book IV and Supplement Book V, Exhibits of the Defendant Oeschey. Could those be presented at this time?
DR. SCHUBERT: May it please the court, Friday afternoon we discussed this question. I had pointed out that my document Book IV belongs together with Document Books III and V because of the context. I had pointed out that for that reason I would prefer to introduce my document Book III together with the other two books. The Tribunal was kind enough to grant my request.
I hear that my Document Books III and V have now been completed. They should reach the SecretaryGeneral any moment now. As soon as he has them I shall be able to introduce all my document books together.
THE PRESIDENT: This may be an appropriate time to call to the attention of counsel for the defense and also the prosecution that the indications are that we are approaching the time when the testimony will be completed. We call attention to the fact that some of counsel have suggested that they had a few isolated exhibits to offer. We do not expect and we admonish counsel that they should not wait until the last day before the testimony is closed and then ask far leave to procure or submit additional documents. We trust that you will gather up the odds and ends of your documentary evidence and have at the earliest possible time.
I assume than counsel for both sides will desire that some time be allowed by way of recess after the conclusion of the testimony on both sides and before the arguments. The Tribunal would be glad to hear your ideas on that matter if you are prepared to present them at this time.
MR. LAFOLLETTE: If your Honors please, as to time, I am not prepared to present my ideas but first I would like to present to the Tribunal the Prosecution's desires with reference to the closing arguments. We would prefer to present briefs in this case to the Tribunal during the recess, these briefs to be presented directly to the Tribunal; the same thing to be done by the defense counsel if they chose to do so. In other words, they would not have to submit briefs to the Prosecution.
Then, at the closing statement, rather than the occupy on behalf of the Prosecution a day, as has been done in most cases, the Prosecution would prefer to make an oral argument not exceeding, in any event two hours and possibly an hour and a half.
The exact time I have not arrived at that would be necessary, but I can within a few days, Defense counsel could, in that event --whatever the Tribunal ordered -- could either make their arguments orally under such time as the Tribunal allotted and subject to the questioning by the Tribunal, or could submit their final statements, if they consider that they were in the form of briefs.
That is a little different from what has been the process in other Tribunals. The Prosecution's feeling is that in this case, to a large extent, each of the defendants needs a special treatment and that it cannot adequately be done in a so-called final argument which would be read to the Tribunal over the good part of the day. We would prefer to reduce our arguments as to individual defendants to writing during the time given for recess and then to make a relatively short oral argument at the close. That is the Prosecution's thinking at this time.
THE PRESIDENT: The Tribunal has some comments to make but we will hear any suggestions from the defense before making them. Do you desire to be heard, Dr. Kubuschok?
MR. LAFOLLETTE: Of course, it goes without saying that whatever the ruling of the Tribunal is we will abide by.
DR. KUBUSCHOK: I have to admit that the defense counsel have not yet come to an agreement as to the suggestions they wish to put to the Tribunal, but one point seems to be clear today. The translating difficulties are so great that for that technical reason alone the pleas by the defense must one put together if possible in one action.
I believe, therefore, that the solution that the Prosecution has suggested, that is, to introduce written briefs, as well as to make oral statements, I believe that that suggestion will fail for technical difficulties alone. I would ask the Tribunal to take into consideration the fact that we who were trained in the customs of German criminal procedure, are very much inclined to concentrate our defense in our final pleas.
That is our custom in which we are versed and which we have been trained. It is a matter of course, that we shall not extend our final brief's beyond all limit, but we believe that in those final pleas we can say all those things which, have to be said, whereas, in the written statements such as the Prosecution plans them, they could only be indicated, whereas in oral statements they can be elaborated upon.
I believe that all I can say for the moment is that we would ask you to give us an opportunity to make our final pleas, making oral statements, and I am sure the defense counsel will have the wish to work out their statements in writing beforehand and to submit them so that when it comes to the statements being made to the Tribunal there will he no translating difficulties.
As regards our wishes about the duration of the recess, I am afraid I cannot say anything now before I have spoken to my colleagues and I think that the duration of that recess will also have to depend on the time which we take now for the last cases because that will effect the time which is left to the defense to prepare its final briefs.
THE PRESIDENT: As I understand your tentative suggestion, it is that although you world prepare in writing your final pleas, you would not submit to the Tribunal an English translation of it but would present it orally in open court and that we would then receive it through the translation in court and thereafter in the transcript. Is that your idea?
DR. KUBUSCHOK: That is quite correct, Your Honor. I believe, however, that we shall be forced to do that for technical reasons. Naturally it would be better if the translation would make it possible for us to submit our final pleas in German and have those translated and to submit those pleas before we read them out here to the Tribunal such as was done with the IMT because that would afford the Tribunal an opportunity both to listen and to read.
THE PRESIDENT: Well, the Tribunal would have the opportunity both to listen and to read in any event. The only difference would be that we would listen first and read afterwards from the transcript instead of reading first and listening afterwards.
DR. KUBUSCHOK: Well, Your Honor, but, of course, it would be somewhat easier if the translation had been made beforehand because naturally a translation made beforehand would be better than a translation made here on the spot.
THE PRESIDENT: We appreciate that. Mr. LaFollette, the difficulty which at the moment seems very serious is this: I doubt whether the Tribunal after considering the matter will be willing to grant a recess long enough for fourteen written briefs to be submitted to the translation department and processed and presented in English to the Court. I see your suggestion that the Prosecution should submit an English brief to the Court, but as to the fourteen written briefs which you suggest from the Defense, I think it would take so long a time for them to be processed that that appears to be out of the question.
It seems to me that Dr. Kubuschok's remarks are very much in point. Knowing the difficulties with the translation department, it seems to me that it would be a month at least before fourteen such documents could be presented to us in advance of oral argument.
MR. LAFOLLETTE: Then Your Honors would prefer that all arguments without briefs apply? Are we driven to that?
THE PRESIDENT: No. I think we had better say this: that whatever written arguments in English can be conveniently presented by either side during the period of the recess will, of course, be welcomed, but to suggest that the entire case of the Defense should be presented in advance and translated into English will involve too great a delay. We will set the time for the recess and any briefs which can be conveniently presented to us, we will, of course, welcome, but I think we will have to depend so far as the Defense Counsel at least are concerned upon their oral argument as suggested by Dr. Kubuschok. Now that is not the determination of the Tribunal, but we will give that consideration.
MR. LAFOLLETTE: Yes. As I recall -- Your honors will have to help me, if I may ask. Does the rule provide any specific time now as to the extent of closing argument as it does in opening statement or is that open for the Tribunal?
THE PRESIDENT: I don't recall that there is any rule unless about the closing argument.
MR. LAFOLLETTE: Yes. that being true--
THE PRESIDENT: There may be. I will ascertain.
MR. LAFOLLETTE: -- I would say this, that the more extensively the Prosecution can brief in writing, then the less time we would ask in the closing argument so that more time could be taken by the Defense of whatever total time the Court had in mind for the presentation of their closing statements and the less translation would be necessary.
THE PRESIDENT: The Tribunal will give consideration to this matter and we will take it up again shortly. We should be glad if defense Counsel would confer at a very early date so that we may know your collective conclusions as to what you deem to be desirable.
MR. LAFOLLETTE: I am sorry, Your Honor. Did Your Honor ---
THE PRESIDENT: I make it that the next order of business is the continuation of the case Cuhorst, is it not?
MR. LAFOLLETTE: Yes, Your Honor. May I even in Dr. Brieger's absence, and he may make his argument later -- I would like to present a matter which concerns the calling of witnesses which a rose when I presented the affidavit of Dr. Hans Gramm which was marked for identification. I am sorry, I can't give Your Honors the exhibit number. The NG numberwas 1884. It was during the cross examination of the defendant, Cuhorst. I will proceed with the factual statement.
Dr. Gramm came and testified as a witness for the defendant, Schlegelberger. He came to Nurnberg. At the time he was here, the Prosecution could not under any circumstances have presented him as a witness, but he was in Nurnberg. We took two affidavits from him. The one which was offered, Your Honors will recall, dealt with the Hitler information sheet number 66. At that time there was an objection, and I merely asked it to be marked for identification. He made another affidavit with reference to the position bearing upon the manner in which the defendant, Cuhorst, was regarded in the Ministry of Justice, which I think is a proper rebuttal document.
I feel that I am entitled to offer those affidavits without the witness for the reason that when he gave the affidavit, although in Nurnberg, he could not be out on the witness stand because it was the time that the Defense was putting on witnesses. The rulings which the Court made in the Klett case, I think that is open, and in the Witzigmann case had this factual difference. Those people were affiants of the Prosecution. They were called to Nurnberg for the purpose of being cross examined, and they appeared in Nurnberg during a time in this proceedings when they could have been examined. There were certain personal matters which prevented Dr. Klett from remaining apparently, but the time and the presentation of evidence at which they were here was such that they could be put on.
Now I will attempt to get the witness, Gramm, back here if it is necessary, but there are one or two other affiants who came here during the process of the Defense and gave the Prosecution affidavits. It. will expedite my judgment and action on ordering witnesses in for rebuttal if the Court sometime today or early tomorrow can make a ruling upon this issue which I believe I have adequately presented.
THE PRESIDENT: Do you still have the references to the transcript which you furnished the tribunal some week or so ago?
MR. LAFOLLETTE: Yes, Your Honor, I think I can give them to you now. 3662 was the ruling in the case of Witzigmann and I believe that 3684 was the discussion in the case of Klett in which there was at chat time no ruling. I will try to check on that during the morning recess or noon hour. If there are any differences, I will advise the Court, but I think I am accurate on those references.
THE PRESIDENT: Are where any other matters that should be presented while we wait for the presentation on behalf of Cuhorst?
The Tribunal will necessarily take a recess until the Counsel is ready to proceed.
(A recess was taken.)
THE MARSHAL: Persons in the Court will please find their seats.
The Tribunal is again in session.
DR. MANDRY: May it please the Tribunal, the defendant Cuhorst has asked me in the place of Dr. Brieger to examine the witnesses. If the Court approves I would like to begin with the examination of the witness Hegele.
MR. LAFOLLETTE: Mayor Klett of Stuttgart is here. He was to have been examined under cross examination and then there was discussion about an affidavit. His Honor the Mayor, would like to permitted to attend the hearing for the balance of the day. I would like to request the Court that he be examined first, because under the rules he cannot remain in the court room, or that the defendant Cuhorst's counsel be requested to waive any objection to, his being in the court room. He is here available to testify. That he be examined is all that I ask or that he be permitted to sit in the court room.
THE PRESIDENT: Do you want to call him as your witness at this time?
MR. LAFOLLETTE: No, Your Honor, I want the defense to call him, for cross examination. He has given an affidavit and then gave a counter affidavit and then was forced to go back but he is available for cross examination by the defense.
THE PRESIDENT: Can counsel conduct that cross examination? Do you feel authorized to conduct that cross examination?
DR. MANDRY: Of the witness Klett, Your Honor?
THE PRESIDENT: Yes.
DR. MANDRY: Yes.
THE PRESIDENT: Is counsel willing that the witness Klett should be seated in the court room as a spectator?
DR. MANDRY: Yes, your Honor.
THE PRESIDENT: There will be no objection, he may do so. Then go ahead with your witness.
DR. MANDRY: I would like to call the witness Max Hegele.