THE PRESIDENT: We appreciate that, Dr. Laternser, and it is with no thought of criticism that I make the comments but merely with the thought and the desire of hastening things along and bring a deadline somewhere in our proceedings.
DR. LATERNSER: Yes, Your Honor.
PRESIDING JUDGE CARTER: I wonder if I might inquire from Dr. Menzel if he has completed all of his testimony now and if he has rested his case.
Dr. Menzel having indicated that he has rested, we will have the record show that in the case of General Kuntze the defense has rested.
You may proceed, Dr. Sauter.
DR. SAUTER (Counsel for the defendants von Geitner and Lanz): If the Tribunal please, I have a few more documents to present for the defendant Lanz, from Lanz Document Book VIII. I don't know whether this document book is already in the hands of the Tribunal; if not, I have brought some English copies along of this document book.
In my presentation of documents on behalf of the defendant Lanz I have mentioned towards the end that I shall submit further an announcement by the French occupation forces. This announcement is to show that reprisal measures, taking of hostages, et cetera, occurred during the activities of other occupation powers also.
In Lanz Document Book VIII under No. 132 I have submitted a copy of this announcement of the French military government. I have managed to obtain the original document such as it was posted in the room of a dentist in Birkenfeld. That is a place on the left bank of the Rhino in Germany. I hand this original which I am exhibiting here end of which there is a copy in my document book to the Secretary General as Lanz Exhibit No. 192.
MR. FULKERSON: I will have to object to the introduction of this document until there is some proper identification of the document, of its origin, how it came to be where it was when it was found, and other testimony that would prove that Dr. Sauter has just said he can prove.
The document itself without such identification, Your Honors, please, means nothing.
DR. SAUTER: It will mean something to the prosecution in a moment if the prosecution permits me to present one further document. Certainly, we considered the necessity of proving for the prosecution that this document is, of course, authentic. From people who themselves saw this document on the spot we obtained affidavits which are not contained in Lanz Document Book VIII but in another document book, X, which has not yet been submitted. It is in document book X which, as I said, is not yet in the hands of the Tribunal, as Document 200 which I may possibly read here so that the prosecution realizes it.
MR. FULKERSON: Dr. Sauter, has this affidavit been translated yet?
DR. SAUTER: No, it hasn't been translated yet.
MR. FULKERSON: Then I would like to renew my objection. I think the identification should come properly before the document itself.
DR. SAUTER: This affidavit I received the day before yesterday. Therefore, I couldn't give it to the Translation Division any earlier. It is an affidavit executed by two persons who themselves saw the document.
MR. FULKERSON: Dr. Sauter, the difficulties you have had in getting the affidavit have nothing to do with it. If you don't have the affidavit translated you cannot properly identify this placard that you have here and until it is properly identified it is not admissible in evidence and I would like to renew my objection and I would like further to object to Dr. Sauter's reading any more from this purported affidavit.
PRESIDING JUDGE CARTER: I think probably the prosecution is correct, that some foundation as to the instrument and its publication as a proclamation should be made, Dr. Sauter, before it is properly admissible.
If we have to wait for the affidavit, we will just have to wait for it.
DR. SAUTER: Well, I could for the moment read this affidavit into the protocol. It only arrived the day before yesterday. It came from the French Zone and therefore, could not have been given the Translation Department any earlier. In a few days the Translation will be available to the Court and to the prosecution and then the prosecution and the court can agree upon whether or not this document can be admitted. There is no other way practically for me to handle this. I can't submit a document before I have received it.
PRESIDING JUDGE CARTER: Well, I understand your difficulty and I am not criticising you for that, but it seems that if the objection is presented that the affidavit identifying the instrument should be produced first.
DR. SAUTER: If the Tribunal please, in that case I have to ask to be permitted to wait until next Tuesday before presenting the balance of my documents. Then those documents that are as yet missing can be presented; that is next Tuesday. I am prepared to wait that long. I only came here today so that we could make use of today's time.
PRESIDING JUDGE CARTER: The Tribunal has decided to permit the introduction and reading of this exhibit and when the supporting affidavit is filed, if it is not sufficient and does not meet the requirements, we will strike the exhibit from the files if the prosecution so moves. We will do that in order to attempt to save some time.
DR. SAUTER: Yes, Your Honor, thank you. I shall then read this affidavit which will be submitted to the Tribunal later in Document Book No. X as Document 200. First of all, pending the final ruling of the Tribunal, I shall give Document 192 which I just handed to the Secretary General Exhibit Number 178.
The last document - I beg your pardon - the last exhibit number which we used for the defendant Lanz was No. 178 so this document 192 in Lanz Document Book VIII will be given Lanz Exhibit No. 179 and Lanz Document 200 which I shall read now will be given Lanz Exhibit No. 180.
That is contained in Document Book X which you will receive in a few days. It is on page 7 of that document.
MR. FULKERSON: An affidavit which has not been translated again, and again I would like to object. The ruling of the Tribunal, as I understand it, is not that untranslated, unprocessed documents can go in, but merely that he can submit this document if he likes, subject to motion to strike if it does not comply with the rules of evidence.
THE PRESIDENT: I think you can proceed with your Exhibit 179 without making any use of the affidavit and submit the affidavit when it is translated.
DR. SAUTER: Of course, I am prepared to do this, although it does not seem practical to me to separate one document from another, which together form a whole, but if the prosecution wishes it that way it will have to be done that way. Then Exhibit 179, if Your Honors please, is a poster with the heading, "General Staff of National Defense Military Mission for German Affairs. French Military Administration in Germany." On the right hand side on the top we have the designation of the French agency: "Capitaine Poyetton, Chief of Military Government, Department Birkenfeld." By the way, Birkenfeld is a town on the left bank of the Rhine in Germany. This document is headed "No. 1" and is addressed to the Landrat, Bikkenfeld. In the text it is said, among other things - I read the sixth line:
"It is not the intention of the French Government to add new suffering to what the country has suffered already; but any action, attack, sabotage or disobedience will be punished severely.
"The punitive measures being contemplated are:
"Part or wholesale evacuation of the village in question; extension of the curfew; abrogation of all permissions to leave homes; fines, internment of all healthy men; for each soldier wounded or killed 10 Germans will be executed. Any unrest will be suppressed quickly and thoroughly."
The balance will not have to be read. The document is dated "Birkenfeld, 11 July 1945." The identification for this document will be available when Document Book 10 is submitted.
The next document is an affidavit executed by one Matthias Starl. This document is in Lanz Document Book No. 8, as document 193, on page 2 of that document book. This document will be given Lanz Exhibit No. 180. The affiant Starl has duly sworn to his statements. His signature has been duly certified by the town Lindau. The affiant states initially that he was first A.D.C. with the 22nd Mountain Corps, that is with General Lanz, during the period 3 September 1943, until 14 November 1943. He goes on to say, and I read from the middle of page 2:
"In my capacity as A.D.C. with the Department I-a of the Corps General Staff of the XXIInd Mountain Corps, I had among other things the task of handling the incoming tactical reports and to compile them for forwarding to superior agencies. That is what I also did during the combats against the Italians on the islands of Cephalonia and Corfu. The occurrences and events of that time are still perfectly present to my mind since they particularly impressed me because of their peculiarity, above all since I worked for the first time and for a short period only in a corps staff.
"With regard to the Reports of Army Group E dated 24 September 1943 and 29 September 1943 concerning Cephalonia and Corfu, now submitted to me, I can declare the following: The numbers stated in the reports of Italians who were killed in action or deserted to us are only estimated and were in each case given in round figures.
"The wording killed in action and shot' in the report of the Corps General Staff to the Army Group was chosen for the very purpose of expressing to the High Command of the Armed Forces and of creating the appearance that the Fuehrer orders requiring rigorous measures to be taken against the Italians belonging to the Division Acqui had been complied with."
The Division Acqui refers to Gandin.
"In reality, however, these were combat casualties only, that means Italians who had been shot during actual fight, i.e. who had been killed in action.
"Apart from the officers shot by sentence of summary court after termination of the combats on the islands, it did not come to my knowledge that Italians had been shot outside the combat zone. For the same reasons the shooting "of General GANDIN and all officers" was noted down in the reports, although this did not correspond to the truth. By this wording which we had chosen for the reports we prevented right from the beginning a possible inquiry on the part of the High Command of the Armed Forces as to whether the Fuehrer Order" to shoot all officers" had been complied with. The report was deliberately drawn up this way in order to avoid an inquiry by the High Command of the Armed Forces and a demand that exact figures be given. In reality, however, both from Cephalenia and from Corfu a great number of Italian officers were marched off as prisoners of war together with several thousands of Italian enlisted men.
"The aforesaid Fuehrer orders, against which General LANZ had at that time immediately entered a protest, were to be destroyed upon an express order of the High Command of the Armed Forces, together with all file notes referring to it, which was done by me personally."
Then we have the affidavit and certification formula.
The next document which connects up with the preceding one is an affidavit by Kurt Hepp. It is contained in Lanz Document Book No. 8, and the document number is 194. The document is on page 4 and the following pages, and will be given Exhibit No. Lanz No. 181. This affidavit also has been duly sworn to and properly certified. The affiant lives in Goeppingen, but he came to Nurnberg in order to execute this affidavit, and that is why defense counsel was in a position to certify the affidavit. Concerning his person the affiant says: "My name is Kurt Hepp, born 7 April 1920, resident in Goeppingen," and so forth, and concerning his assignments during the war he says that during the fights against the Russians on 15 March 1945 he was seriously wounded and lost his left leg. He continues to say, "After my discharge from military service I was employed in the Goeppingen (Wuerttcmbcrg) Hospital. This is my present occupation." Ad rem the affiant makes statements concerning the Islands Kefalonia and Corfu.
"I am able to make exact statements about the events on the Island of Kefalonia, and concerning the reports by the Army Group E dated 24 September 1943, as I was at first A.D.C. and later adjutant on the staff of the then German island commander and leader of the combat group, Major von Hirschefeld.
"After I was seriously wounded for the seventh time, when I lost my left leg, I learnt in 1945 that I am the only surviving officer of the former staff of the combat group.
"II. Major von Hirschfeld was on intimate terms with the general and Hitler's chief adjutant, General Schmundt, and was in constant direct touch with him by radio, without the knowledge of his superiors. In this way, Major von Hirschfeld received on several occasions direct instructions, respectively orders, from the Armed Forces High Command and the Fuehrer's Headquarters.
"I remember very well that thus, during the fights on Kefalonia, Major von Hirschfeld as combat group commander and island commandant received a first order immediately from the Armed Forces High Command to the effect that all Italians on the island had to be executed by shooting because of mutiny. I myself have seen the radio message containing this order. As v. Hirschfeld mentally rejected this stringent order, he in turn sent off a radio message right away, directed to the Armed Forces High Command and reading as follows: "Battle on Kefalonia already finished, request order for removal of captured Italians." I personally was present when von Hirschfeldt ordered the chief radio operator to pass this message on. Following this radio message, von Hirschfeld immediately received the Armed Forces High Command reply: "According to Fuehrer order all captured Italians have to be executed by shooting under summary courts martial as insurgents and bandits." I also saw this message myself; I myself received it from the radio operator and took it to Major von Hirschfeld. I can also recall the exact wording of this radio message. These direct radio connections and the text of the radio messages were not reported by Major von Hirschfeld at that time either to his divisional commander (General von Stettner), or to the Commanding General, General Lanz, as he knew that he was not permitted as line officer to maintain such direct radio connections.
"III. Approximately two days after the first radio message was received, the then Commanding General LANZ arrived at Kefalonia by plane, in order to inform himself about the situation, and discuss matters with Major von Hirschfeld. On that occasion General Lanz told Major von Hirschfeld in my presence that he (Lanz) had recently received a Fuehrer order stating that all Italians of the Ganding Division were to be executed by shooting; however, he could not reconcile this order with his conscience as a soldier, and he had vetoed it. He (Lanz) was of opinion that only those responsible for the mutiny should be called to account. He said that he would inform von Hirschfeld about the success of his veto.
Major von Hirschfeld supported General Lanz's opinion.
When on 22 or 23 September 1943, after the conclusion of the battles on Kefalonia, General Lanz again came to the island he in formed Major von Hirschfeld that the Fuehrer order had been changed in so far that all Italian officers were to be executed by shooting, but not the enlisted men.
He added, however, that he (Lanz) intended to execute this Fuehrer order in such a manner that only after investigations had been made the officers responsible for the mutiny were to be called to account on the basis of martial law.
"IV. The high number of Italian casualties on Kefalonia is due in particular to the battles for the northern part of the island, where almost three Italian battalions were nearly completely wiped out, which had encircled one of our German battalions. The fighting there was very intensive, because the Italians offered exceedingly strong resistance in the mountainous and hilly territory, and attempted right to the end to annihilate the German battalion they had encircled.
"Concerning the Army Group E report, dated 24 September 1943, in which the term "killed in action or shot dead" is used I want to mention that during the battles on Kefalonia, which I myself witnessed, Italians were only shot in battle and with weapons in their hands.
"V. The report that Gandin and all the officers wore shot is not correct. I know definitely that a few days after the battles on Kefalonia had ended, with every prisoner of war transport -if I remember right there were 8 to 10 transports -- a number of Italian officers were shipped to Patras, aside from the Italian enlisted men. Even on the boat with which I returned to the mainland Italian prisoners were taken over, amongst them a number of officers, especially an Italian Lieutenant-Colonel who showed me his pass."
I can omit some of the following, and I shall continue where it is said:
"When our boat arrived at the Greek mainland, the Italian officers, amongst them that particular lieutenant-colonel, took off their officers' uniforms and donned ordinary enlisted men's clothing. They had already removed their epqulettes and medals right after the battle of Kefalonia, so that the officers could only be distinguished from enlisted men by their boots, trousers and belts.
"VI. After they had been captured, General Gandin and his officers were billetted in a large hotel at Argostolien, the capital of the Island of Kefalonia. On the very next day Major von Hirschfeld went there in order, as he told me, to interrogate General Gandin. He asked me to accompany him. Thus it happened that I was present when Major von Hirsch feldt interrogated General Gandin.
General Gandin knew enough German that we could talk to him; besides, there was an interpreter present. During the conversation Major von Hirschfeld asked General Gandin why he did not comply with the surrender order of his supreme commander, General Vecciarelli. General Gandin replied in the sense that he and his officers had revolted against General Vecciarellis surrender order. He (Gandin) had been sworn in on the Italian King, and he was loyal to his King to the end. During this conversation General Gandin did not mention that he had received orders to the contrary by the Italian King or Marshal Badoglio. If Candin would have made such a statement, I am sure Major von Hirschfeld would not have given orders to shoot General Gandin, but would have first submitted a report to General Lanz about it."
I am going to omit the next paragraph. At the end the affiant says: "My above-mentioned statements are the full truth. I am prepared at any time to make them under oath before a court." The statements of the affiant have been sworn to by him and the signature is properly certified.
That was Lanz Exhibit No. 181, and this brings me to the next document which is Lanz Document 195.
THE PRESIDENT: Mr. Sauter, the Deputy Secretary-General informs us that you have your exhibits numbers 100 too high; that they should be Exhibit 80 and Exhibit 81.
DR. SAUTER: I don't think so. I think the Secretary-General is mistaken. It is already Document 194. There were a few documents which I omitted. I believe that the Exhibit number which I mentioned is correct. Otherwise, it would mean that I had offered less than half of the documents which I have. I am sure that is wrong. There must be an error somewhere. It was Document 194 that we dealt with, and if my exhibit numbers are 100 too high, then it would mean that I had omitted more than half of the documents which I have available, and that is not the case. There are only a very few documents which are omitted.
THE PRESIDENT: Well, you may proceed. We will have this checked up and if there is any trouble with the numbering, we can arrange it tomorrow morning.
DR. SAUTER: Very well. Thank you. Your Honor. That brings me to the next document, which is quite a brief one. It is Document 195, and this will be offered as Lanz Exhibit 182. It is on page 8 of Lanz Document Book 8.
MR. FULKERSON: I would like to object to this affidavit for the simple reason that it is a probative nullity as far as I can tell. This man never identifies himself as ever having been in the South East anywhere, at any time, or if he was there what he was doing there, or why he should know anything about anything that went on down there.
DR. SAUTER: In the document which I have in front of me, and that is Document No, 195, the affiant says in the introductory notes that he had an official position as first General Staff officer during the period from October, 1943, until the end of 1944.
MR. FULKERSON: And then he promptly goes on to tell about something that is supposed to have happened, or rather not to have happened, with the 104th Light Infantry Division, without showing why he should have any knowledge of that at all.
DR. SAUTER: If it please the Tribunal, I believe from the same affiant, Bruno Willers, there were some other affidavits submitted by me. I haven't got the document books here at the moment, but from the other documents from this affiant, it becomes evident that, of course, during the period of time from 1943 to 1944 he was a General Staff Officer on the Balkans. If, for instance, this man had been in Africa or Norway or France as General Staff Officer, then, of course, I wouldn't submit any affidavits given by him. I notice here right now that it is not expressly stated here that he was stationed in the Balkans, but from the other affidavits given by this affiant, and also from the contents of his statements, it becomes clear that this affiant Willers was stationed in the Balkans. He was first General Staff Officer down there and a member of General Lanz' Corps. Otherwise, from where should we derive this strange idea to offer an affidavit given by a man who was not even down there in the Balkans. Tomorrow I shall be able to give the Tribunal the exhibit numbers of other affidavits executed by this affiant, so that the court can be sure that, of course, the man was stationed down there. Of course, a defense counsel is not prepared for such an objection, and that the Prosecution thinks that a serious defense counsel is capable of submitting an affidavit executed by a man who was not even down there in the Balkans, and that a German officer would swear to anything that would be so obviously wrong, if what the prosecution said is correct, the Prosecution will not be able to say that they have any indication whatsoever that this General Staff Officer was not in the Balkans and that he did get this statement to which he was sworn out of the blue. To be prepared for such objections is too much.
THE PRESIDENT: I understand you want the exhibit to lay over until other evidence is produced?
DR. SAUTER: Yes, I can do that. I agree to that. I shall then withdraw this exhibit number for the moment, and tomorrow when I submit documents from Lanz document book 10, I shall bring the proper proof so that this objection can be countered.
I withdraw Exhibit No. 182 from Lanz Document 195, for the time being and I shall reserve the right to read this document in my next presentation.
THE PRESIDENT: Is it possible, Dr. Sauter, that General Lanz might identify this affiant?
DR. SAUTER: Can he do that right away, Your Honor? Then I would ask to have General Lanz called to the witness stand for a moment, so that he can state under oath who this Lieutenant-Colonel Willers was. If the Tribunal agrees to this, I am very prepared to have General Lanz do that right away.
JUDGE CARTER: I think that would be proper.
DR. SAUTER: Would you please take the stand?
HUBERT LANZ, a witness, took the stand and testified as follows:
DIRECT EXAMINATION
DR. SAUTER: I don't believe it's necessary to have the witness repeat his oath. He could refer to the oath he has formerly given.
JUDGE CARTER: I think the rule is that if he was sworn once that it's obligatory for him throughout the trial.
BY DR. SAUTER:
Yes, that is the same in the German law, also.
Q. General Lanz, you heard just now that I wanted to submit a document which contained statements given by a Lieutenant Colonel Bruno Willers who states that he was 1st General Staff officer during the period October, 1943, until the end of 1944. Can you tell us, under oath, where this affiant Bruno Willers was stationed during the period mentioned? That is, October, 1943, until the end of 1944, as 1st General Staff officer.
A. I state herewith, under oath, that Lieutenant Colonel Willers was 1st General Staff officer of the 104th Infantry Division, which was one of the two divisions which, during my committment in Greece, was subordinated to me - that is, to my agency.
Q. I believe that suffices.
JUDGE CARTER: Any cross examination as to foundation?
CROSS EXAMINATION BY MR. FULKERSON:
Q. General, how familiar are you with this man's handwriting?
A. Just a moment until I take up the earphones.
Yes, I know Lieutenant Colonel Willers' handwriting. I am familiar with it.
Q. Have you looked at this affidavit yet?
A. I cannot say for certain whether this is the one I saw. Amongst my documents there are three or four affidavits given by Willers.
Q. Well, if Dr. Sauter will show the witness the affidavit and if he identifies the handwriting, I withdraw my objection.
DR. SAUTER: If the Tribunal please, that is the first time during this trial that in such a manner and for such a reason a signature is being doubted by the prosecution. I have the original here in front of me which the prosecution was shown a few moments ago. Here we have the signature of the affiant Bruno Millers and this is certified by the Mayor, How one can doubt the authenticity of a signature under such circumstances is quite frankly incomprehensible to me since, after all, during this trial, thousands of signatures have been accepted, which have been certified by mayors, or notaries without such a doubt being voiced. In spite of this, however, I shall ask the witness if he can identify the signature.
Please have a look at the signature and tell us whether this is the signature you know of the affiant Willers?
THE DEFENDANT: Yes, that is correct. That is the signature of Bruno Willers, former Lieutenant Colonel, with which I am familiar.
DR. SAUTER: Perhaps now I might ask the prosecution whether the statement, under oath, made by the witness and the certification by the mayor suffices, or whether further evidence is to be submitted for the authenticity of that signature?
JUDGE CARTER: My understanding was that if the witness identified the signature, the objection was withdrawn, so you may proceed.
DR. SAUTER: I believe the witness can then leave the witness stand and return to the dock.
('The witness was excused.)
I would now like you to accept Document 195 on page 8 which is now no longer objected to and to have Exhibit No. 182 assigned to this document. I was given by Lieutenant Colonel Bruno Willers who stated initially, as previously mentioned, that he was 1st General Staff officer during the period October, 1943, until the end of 1944. His statements concern reprisal measures taken against 71 communists during July, 1944.
The affiant says the following concerning the 104th Light Infantry Division which is the division of which the affiant was General Staff officer:
"Such a reprisal measure was not taken by the 104th Light Infantry Division. If it took place, it was probably executed by the Messolongion Military Administration Headquarters or by the Commissioner of the Higher SS and Police Leader (Evzone) and the Division only forwarded the report. The cause for this reprisal measure was obviously a renewed attack by Communist bands on the railroad line Messolongion-Agrinion, as well as an attack by a band on a wire patrol, by which our troops lost 8 dead and 14 wounded."
The statement by this affiant Willers has been duly sworn to, signed by him and the signature is certified by the Mayor of the Town of Hude.
The last document contained in this Document Book 8 is Lanz Document 196. This is on page 9 of Lanz Document Book 8 and the document will be given Exhibit #183. This is an affidavit given by Wilhelm Spindler, who resides in Stuttgart. He states that he makes his statements on the basis of his official position as commander of the Mountain Infantry Battalion 54 from August, 1943 until August, 1944.
Ad rem, the affiant says:
"With reference to the Document NOKW 1857 (Daily Report by High Command of Army Group E to Commander-in-Chief Southeast, dated 23 September, and Report of 24 September, 1943) submitted to me, I can state the following:
"During the fighting on Cephalonia in which I participated myself in the central attack sector, from the northern part across the mountains as far as the Argostoli area, only Italians who were bearing arms were killed in action.
"Very soon after the termination of the fighting on Cephalonia I was transferred from the island to the mainland, but as far as I saw the preparations for the evacuation and the beginning of the evacuation of the Italian prisoners, I definitely know that among all groups of prisoners there were also Italian officers."
This statement is also duly sworn to and the signature has been properly certified.
There is one document which is still missing from this document book. That is, it has not yet been submitted and I shall submit it at a later date.
One more document has been sent in by me as Document Book 9. This is not yet in the hands of the Tribunal. The document is #197. I might state, at this time, that I withdraw that document 197 which is the only document in Document Book 9.
Then there are going to be three very brief documents in Lanz Document Book 10, but this document book has not yet been translated. Therefore, I shall offer these three last documents concerning General Lanz at a time when this Document Book 10 has been fully translated.
Concerning the case of the defendant Geitner, I also have a few documents to offer, but they are not yet translated. Therefore, I'll have to leave that until a later time.
Therefore, the situation is that I have yet a few documents for Geitner and a few documents on behalf of Lanz left to be submitted.
There is one subject to which I would like to refer. That is, the question of the witness Dr. Scheller from Nurnberg. I have offered two documents from this witness Scheller - that is, Document Geitner 28 with Exhibit #64, and Geitner Document 53 with Exhibit #65. The first document has not been objected to by the prosecution. The second document that is, Document #53 - on the occasion of that document the prosecution asked for that witness to be produced for cross examination. I made inquiries. The affiant is in Nurnberg at this time. If, therefore, the prosecution wishes to carry out the cross examination of this affiant Scheller, I can call him here tomorrow or Monday or Tuesday, and produce this affiant here for cross examination. It will be a matter for the prosecution to make a statement whether they want to go through with that cross examination and then they might establish the time when this affiant is to be called here as a witness.
MR. FULKERSON: I wouldn't be presumptuous enough to tell Dr. Sauter what witnesses to bring here. If he wants to bring them here, it's all right with me.
DR. SAUTER: I don't need a witness. The affidavits of that affiant have been read. The prosecution demanded for this witness to be produced here for cross examination and just so we don't forget this item, I mentioned it here. If the prosecution states they don't need a witness, I certainly don't need him. I can dispense with him.
Am I right now in the assumption that I don't have to call the affiant Scheller?
MR. FULKERSON: Maybe we are not talking about the same thing. As I recall it, one affidavit was offered and rejected and, if we are talking about the same person, then if he wants to get the testimony in, it's up to him, it seems to us, to determine whether the witness should come here.
Now, if one of the other members of the prosecution staff was here at the time he refers to, I'm sorry that I am not able to depose.
JUDGE CARTER: Dr. Sauter, are both affidavits in evidence?
DR. SAUTER: Yes, Your Honor. The same representative of the prosecution who is here today was here, if I remember rightly, at that time. When the first document was introduced - that is Document #28 - he made no objection. When the second document given by the same affiant was introduced - that is, Document 53, he did object.
JUDGE CARTER: Was the objection sustained?
DR. SAUTER: The exhibit number has been accepted, but at the time I stated I would produce the witness for cross examination if the prosecution so desires and that is why I discuss this at the moment so that I do not injure the rights of my client. I don't need the witness. I have submitted the affidavit. It is my opinion that if the prosecution does not attach any importance to the fact of producing the witness here for cross examination, it would be superfluous to bring him here.
JUDGE CARTER: It's the memory of the Tribunal, and possibly not too good, that the second exhibit was not admitted in evidence for the reason that the witness was here in Nurnberg. If that is true, if that evidence is to be of any use to you, you will have to call the witness.
DR. SAUTER: All right then. If the Tribunal agrees to this, I shall, tomorrow afternoon, ask the affiant Scheller to appear here.
JUDGE CARTER: Very well. Is it possible that you could have him here tomorrow morning?
We may have the time to hear him tomorrow morning.
DR. SAUTER: I shall try that. I am hoping that it is possible. I shall try to meet the man tonight and I can possibly call him, in that case, for tomorrow morning. I shall certainly endeavor to do that and, if at all possible, I shall have him here tomorrow morning.
DR. LATERNSER: If the Tribunal please, at this point I shall have to name a third witness. I do this in order to adhere to the time limit. The name of this affiant is Lehmeier. I shall examine this witness also concerning reprisal measures carried out by the Allies.
If the Tribunal please, there is one more point to which I would like to draw attention. This has something to do purely with procedure. Tomorrow morning possibly the situation might arise that the defense has no material to present during the morning hours. I just want to bring this fact to the attention of the Tribunal because perhaps in this case the Tribunal might rule not to have any sessions tomorrow morning. I just intend to avoid giving the Tribunal any unnecessary trouble. If my colleague Sauter is able to produce his affiant Scheller, then the defense would have no other matters to present after that unless Dr. Mueller-Torgow's document book has been completed in the meantime which is not very likely, according to the information which my colleague, Mueller-Torgow, has received in the meantime.
JUDGE CARTER: The Tribunal will meet at 9:30 tomorrow morning and dispose of what matters it can and deal with the matter of any continuance at that time.
