PRESIDING JUDGE BURKE: The objection is overruled.
MR. RAPP: May I ask the Tribunal to effect a ruling on this particular statement?
PRESIDING JUDGE BURKE: Do you think it might serve to incriminate you in the proceedings now pending against you?
A I believe it would because I don't know what other questions it would entail.
PRESIDING JUDGE BURKE: The witness will not be required to answer.
Q Witness, did you, yourself, advocate the racial theory of Adolf Hitler?
A Never.
Q As you have given me a direct answer, witness, I should like to hand you a document. Witness, will you please peruse the document and identify it?
A The document is very lengthy. It consists of about five pages. I don't think that it will be a very fast job for me. May I also say that it is a document which will certainly be important in the case in which I am under indictment, therefore, I have certain scruples to comment on this document.
Q Witness, does this document bear your signature?
A It does.
Q What is it? Does it concern an order, a daily report? What is it?
A I have already said that I do not wish to comment on this order in this case before this Tribunal.
PRESIDING JUDGE BURKE: You may proceed.
MR. RAPP: Your Honor, may I inquire from the Bench whether or not the witness is required to give an answer?
PRESIDING JUDGE BURKE: On matters he considers may incriminate him in the case he is at present a defendant, he will not be required to answer so long as I am presiding.
MR. RAPP: Very well, Your Honor. In view of the ruling of the Tribunal, I see no further purpose in cross examining this witness.
PRESIDING JUDGE BURKE: Are there any further questions by the defense counsel? Any questions on the part of the Tribunal? If not, the witness will be excused. The witness will be excused.
MR. RAPP: For the record, I would like to state that I would like the Court to take judicial notice of the fact that the witness was pleading self incrimination during his cross examination.
PRESIDING JUDGE BURKE: It was quite obvious.
MR. RAPP: Very well.
PRESIDING JUDGE BURKE: You may proceed, Mr. Fenstermacher.
MR. FENSTERMACHER: Thank you, your Honor. I want to continue now with the presentation of a few more rebuttal documents. We offer now NOKW-3791. It is offered as Exhibit 665 and is offered to rebut the testimony of General Foertzch and General Lanz with respect to the Italian capitulation.
DR. RAUSCHENBACH (Counsel for defendant Foertsch): If it please the Tribunal, I object to presentation of this document, as long as I have had no opportunity of reading this lengthy document consisting of 35 pages and until my client has also an opportunity of looking at it, I have only had one copy so far.
Further, if I shall then have further reasons for objection will depend on the outcome of that.
The same statement I wish to make on behalf of Dr. Sauter for the defendant Lanz.
MR. FENSTERMACHER: I point out, your Honors, that this entire war diary of Army Group E and Army Group Southern Greece came from Washington. The defendant had ample opportunity to examine it at that time. As a matter of fact, certain portions of it, I believe, were introduced by General Lanz himself.
PRESIDING JUDGE BURKE: The objection will be overruled. If counsel desires to make an objection to a specific passage that is presented, of course, he will have an opportunity to do so.
You may proceed.
MR. FENSTERMACHER: Those are excerpts from the War Diary of the German General Staff of the Italian 11th Army and/or Army Group South Greece for the period 19 July 1943 to 4 October 1943. I don't want to try the Court's patience by reading many of these excerpts in detail but I think we can skim through it quite rapidly.
On page 2 there are entries under 8 and 9 and 10 September, the various hours of the entries are marked on the margin.
DR. SAUTER (Counsel for defendant Lanz): May I say something?
This document consists of 36 pages. Being the counsel for defendant Lanz, I cannot possibly agree to the presentation of some fragments which are taken out of the context. I have not had an opportunity of reading the whole document within a few minutes and do, therefore, not know whether the excerpts read by the Prosecution are not given a different sense by other passages contained therein.
If this document has any value at all, then I must ask that, in view of the volume of this document, it should be read, in its entirety so that I have an opportunity of acquainting myself with the contents. In my judgment, it is improper and incompatible with a fair trial that a document of 36 pages be submitted of which only a few fragments are quoted but expecting that the Tribunal take judicial notice of the whole content without the defense or the defendant having the slightest opportunity of becoming acquainted with the document.
PRESIDING JUDGE BURKE: For the reason already stated, the objection will be overruled and an objection may appropriately be made to the specific items when presented by prosecution.
DR. SAUTER: If it please the Tribunal, would you please tell me how I am to make objections against those parts which are not being presented by the Prosecution? The rules of the Court, if I understand them right, are that every document submitted to the Court is submitted in its entirety as evidence. The Prosecution then submits evidence, not merely by reading a few fragments but by presenting the whole contents, and I see no opportunity of protesting against the document of whose consents I am ignorant within the short time limit. That is impossible for me.
PRESIDING JUDGE BURKE: I am sure, Dr. Sauter, you will be able to adjust yourself in such a situation. I am sure, Dr. Sauter, that you will be able to adjust yourself to the situation.
With the explanation made by the prosecutor of the origin of the document, the objection will be overruled.
MR. FENSTERMACHER: Turning first to page 2 of the document, the entry under 1945 hours.
"general Vecciarelli gave the explanation to General von Gyldenfeldt that the enemy intelligence service has announced the capitulation of Italy. He himself does not believe this and has no official information about this. In order to avoid any sort of incidents in this case in advance, nevertheless, General Vecciarelli declares that Italian troops will continue to hold and defend their positions until they are replaced by German troops. No Italian units will proceed with force against Germans, insofar as the same happens from the German side. He nevertheless emphasizes that he will meet force with force. An order drawn up according to those points of view will go to the Italian troops after the official cognizance of the capitulation. Until then, a strained and nervous mood prevails amongst the Italian General Staff of the 11th Army.
The Ia of the Italian 11th Army, Lt. Col. Scoti informs Gen. v. Gyldenfeldt that official information of the capitulation from Italy is at hand and that General Vecciarelli will hold to the agreements which had been discussed."
Turning next to page 4 of the document, the entry under 9320 hours, which is on 9 September 1943, I call your Honors attention to the third paragraph:
"The order given for the "Axis" case, according to which all Italian troops are to be disarmed completely and have to give up their entire material, is to be carried out immediately and without exception by the most severe means by order of the C-in-C of the Army Group. The Italians are to be informed at the same time that the betrayal of the Italian Supreme Command has proved itself so widespread that any sort of consideration of previous cooperation is out of place.
It has furthermore been proven that Italian troop units in Athens have already begun to do energetic business with the civilian population with the weapons, trucks, and horses which had been left with them temporarily. Excepted from this order are the troop units which sign up unconditionally for further combat within the framework of the German Army."
Turning next to page 6, at the bottom of the page, communication dated 9 September 1942 to "German General Staff with the 11th Italian Army for the attention of Brigadier General Gyldenfeldt."
Your Honors, will notice on page 7, "Received," and the communication reads as follows:
"Advance report to the radio situation report 2nd Company, IX Corps:
"The 11th Army (Athens) transmit at 2310 hours to the XXVI Corps (Janina), the Military Detachment in Crete (Neapolis), and to the Division Acqui (Argostoli/Cephalonia) the following message in clear text:
"As a result of the conclusion of the armistice, the Italian troops of the 11th Army will take the following attitude:
"If the Germans do not resort to military counter-measures, the Italians will not, I repeat, will not raise their arms against them, they will, not, I repeat, will not make common cause either with the insurgents or the Anglo-American troops who might land later. They will defend themselves by arms against any force of arms. Everyone has to remain at his spot with the previous tasks. In any case, exemplary discipline must be upheld. Inform the competent German commanding offices of this. Confirm this."
"General Vecciarelli," signed in hand, "Seemueller."
Then, continuing at the bottom of page 7, communication from Army Group Southeast dated September 18, 1943, General Vecciarelli -
DR. RAUSCHENBACH (Counsel for defendant Foertsch): If it please the Tribunal, I must repeat my objection to the submission of this document. I have meanwhile ascertained by means of the list which we made of the Washington documents -- that is, the list which we were handed -that this war diary was not included among those documents. We cannot, therefore, possibly know this document and are unable to check what else was contained in the document and that was the purpose of the ruling at the time, that as to all documents submitted by the Prosecution we ought to have knowledge of the entire document. That is also true for rebuttal documents.
DR. SAUTER (Counsel for defendant Lanz): If it please the Tribunal, may I also state that I join on behalf of General Lanz in objecting to the Prosecution stating at the beginning that this document had arrived from Washington at the time and that I had an opportunity of inspecting it and that I, in fact had inspected it. I doubted whether this assertion of the Prosecution was correct because we had with respect to the Italian affair perused these documents with particular attention and I can say with a hundred percent certainty that this war diary was not among them.
Meanwhile, I have consulted the list and have ascertained that what is being read now was not included among the war diaries sent from Washington. Prosecution himself had the feeling that as to the admissibility of the document it was significant to know whether the defense could inspect the document at the time and, therefore, what he did assert has now turned out to be incorrect.
I think under the circumstances it calls for a check on the part of the Tribunal as to whether this ruling ought to be upheld on the basis of justice and equity.
MR. FENSTERMACHER: I will send someone down to my office to check the list of documents which were received from Washington, if your Honors please. If what Dr. Sauter and Dr. Rauschenbach maintain is correct, that the entire War Diary of the General Staff of the Italian 11th Army and the Army Group South Greece was not brought from Washington, then of course under the previous ruling of the Tribunal, we are not entitled to offer excerpts unless they are furnished with the entire document. I am sure I will be able to ascertain that fact in just a moment.
PRESIDING JUDGE BURKE: I understood you to say they had been made available to them at the opening of your statement.
MR. FENSTERMACHER: That was my understanding, your Honor.
PRESIDING JUDGE BURKE: Will you check that, please, and inform the Tribunal? Then the decision of the Tribunal will then await your report on the matter.
MR. FENSTERMACHER: I think we can hold this document in abeyance if your Honor please and pass on to another one until we can ascertain that.
PRESIDING JUDGE BURKE: The matter will be held in abeyance until then.
MR. FENSTERMACHER: We offer next NOKW-2829.
PRESIDING JUDGE BURKE: Mr. Fenstermacher, what is the number?
MR. FENSTERMACHER: This is offered as prosecution Exhibit No. 666. This document is an affidavit of Dr. Karl Schmauser, an army judge, and goes to the question of the consequences which......disobedience of an order of Hitler's It relates specifically to the testimony of General Lanz and gives as examples of the consequences of the disobedience of a Hitler order the case of General Sponeck and the case of General Ziehlberg.
DR. SAUTER: Dr. Sauter for the defendant Lanz. I have recently talked to Dr. Schmauser in the local prison. We discussed the same questions to which this document obviously refers.
I request that the Prosecution comment on the present whereabouts of Dr. Schmauser.
DR. FENSTERMACHER: Dr. Schmauser, according to our records, was returned from Nurnberg to the prisoner-of-war enclosure in Dachau.
DR. SAUTER: If it please the Tribunal, before this document is admitted, I request that the Prosecution be ordered to ascertain whether Dr. Schmauser is still interned in Dachau or not, because my informations are to the effect -- but I am not quite sure whether they are correct -that Dr. Schmauser has been extradicted to France or is to be extradicted. If this affidavit by Dr. Schmauser is to be read, then we demand that Dr. Schmauser be presented for cross-examination because other high military officials adopt a different view from that hold by him, but if he is no longer available for cross-examination then I think that the reading of his affidavit is inadmissible.
MR. FENSTERMACHER: He have not asked Defense Counsel where each one of their 1500 affiants is at the present time or was at the time his affidavit was offered into evidence. But, we will be very glad to furnish Dr. Sauter with information as to his present whereabouts, although I think that fact is entirely irrelevant as to whether or not the affidavit is admitted. His point is apparently that if he requests the affiant to be brought here for cross-examination, we won't be able to produce him. Of course, he has his remedy if that fact is true. I submit it is not important as to whether or not the affidavit is admissible.
DR. LATERNSER: May I ask, your Honor
PRESIDING JUDGE BURKE: The Tribunal is prepared to dispose of the matter without further discussion. The affidavit may be introduced with a request that the witness be produced and in the event that the witness is not produced before the conclusion of the hearing, a motion to strike the affidavit will be entertained. That is all.
DR. SAUTER: Yes. I thank the Court.
DR. FENSTERMACHER: The affidavit reads as follows:
I, Dr. Karl SCHMAUSER, depose, state and declare: I can make the following statement with reference to tho SPONECK Case:
Shortly before Christmas 1941. SPONECK took over, as a deputy for a Commanding General who was ill, the command of an Army Corps which was located in the Western part of the Crimea with its main tactical location in Kertsch. This front was generally considered as quiet and not endangered. SPONECK, however, concerned himself with the idea that, in case the Russians should land on the Southern coast of the Black Sea near Feodesia and, at the same time, on the northern coast, the forces located in the western part of the Crimea would be cut off around Parpatsch. He therefore applied to the Commander of either the Army or the Group of Armies that he be permitted, in case of such an attack to retreat up to (as far as I remember) approximately the vicinity of Ismail Pascha. This request was definitely refused by the Commander in question and SPONECK was ordered to hold the position under all circumstances, even at the price of having the Corps surrounded. He could count upon being transferred if such should be the case. On the following day SPONECK made the same request of the Chief of Staff, which, however, was also refused by him. Nevertheless he repeated this request a third time and again personally approached the Commander of the Army or Group of Armies. He, however, answered him briefly and gruffly and states that the position was to be held under all circumstances. He did not give any detailed reasons for this.
I was later informed that the reason for this order to unconditionally hold this position, was based upon the fear that if the Crimes was lost Turkey would enter the war against Germany with approximately 60 or 65 fully equipped Divisions.
As far as I can remember, on about 25 December, a convoy was sighted north of the Crimea, traveling from east to west close to the coast.
At 0700 hours on 26 December a Sentry Station, consisting to my knowledge of a Sergeant and two men, reported that the Russians were making an attempt to land on the south coast near Feodesia. A short time later the Russians penetrated into the harbor of Feodesia with approximately 1000 men and, to my knowledge, attempted to carry out an attack. This was possible because the old mine blockade, which had been laid in the harbor of Feodesia by the Russians, had not been sufficiently strengthened.
Without checking the report made by the Sergeant, especially without driving to the site himself or sending one of the officers of his staff, SPONECK, within 15 minutes, passed on the order to the Division Commander in Kertsch to immediately march to the west with his Division. As far as I can recall the new point of resistance selected him was a line approximately 73 - 80 kilometers west of Kertsch, i.e. approx. half way between Kertsch and Sewastopol. He gave them only 2 days to reach this position. At a temperature of 20 - 30 degrees C below zero and on the poor, completely ice covered streets this resulted in the fact that all heavy weapons, including the machine guns, had to be left behind by the troops during this march and were lost, especially since the fuel for the trucks had run out.
On the basis of the Sergeant's report SPONECK furthermore ordered his own Command Post (as far as I can remember) moved approximately 25 30 kilometers west of its former position. He dismantled the old Command Post without even leaving a "Meldekopf" (Advance Message Center) behind until the new Command Post was erected. At the same time he neglected to inform the Army or Group of Armies of the withdrawal order he had given, although telephone as well as radio communications to the Army or Group of Armies were available.
DR. LATERNSER: May I interrupt, your Honors? I request that the further reading of the document do not take place. The whole affidavit contains only hearsay evidence. It is all hearsay. Dr. Schmauser was never on this spot.
He never states in what capacity he took cognizance of the fact. It is all hearsay and therefore not admissible as direct evidence in rebuttal.
MR. FENSTERMACHER: Aside from the fact that there has been a previous ruling with respect to hearsay, I direct Dr. Laternser' attention to page 3 in which the affiant mentions that he was the judge at the court martial of General Sponeck.
DR. LATERNSER: If it please the Tribunal, I thank the prosecution for the hint but that is the very proof of my statement that it is only hearsay evidence.
PRESIDING JUDGE BURKE: The motion will be overruled.
MR. FENSTERMACHER: Continuing at the bottom of page 2:
"At the same time, he neglected to inform the Army or Group of Armies of the withdrawal order he had given, although telephone as well as radio communications to the Army or Group of Armies were available."
He merely ordered one of his Ordnance Officers, from a town which to my recollection was about 20 kilometers westward (Ismail Pascha), to pass the report on by telephone in his place. As far as I can remember the Officer concerned did not reach that particular town until about 1500 hours. It was in this town that the telephone communications were located. The transmittance of that report he had been ordered to make was not possible, since this town had been attacked by Russian fliers just previous to his arrival and had been severely damaged. The effect of this was that, to my knowledge, the Army or Group of Armies were without knowledge of the withdrawal order issued by SPONECK for approximately 20 hours.
SPONECK's fears that he would be put off on the Parpatsch line proved themselves to be completely unfounded. The landing in Feodesia merely consisted of an assault troop raid made with insufficient troops, as has already been stated with approximately 1000 men, after the com pletion of which the Russians immediately withdrew again.
The convoy traveling along the north coast from east to west made no attempt whatsoever to land. It obviously was not intended for such a purpose, but rather was supposed to carry out transports which were intended for the west half of the Crimea.
The Russians themselves were apparently completely surprised by the evacuation of the half island of Kertsch. As far as I can recall they did not advance until the following afternoon and then with an entirely insufficient number of troops.
SPONECK attempted to justify his conduct with the excuse that entirely unreliable Roumanian troops, to my recollection the 2nd Roumanian Mountaineer Division, were located behind his Corps and that he had wanted to deal with them personally so as to prevent the endangering of the rear from the direction of Sevastopol.
Due to these incidents, presumably on Hitler's order, a charge of disobedience in the face of the enemy was placed against SPONECK. The trial took place in early February 1942 in Berlin. Goering was Chairman and Chief of the trial, the assisting officers were: Freiherr von Seydlitz and a General of the OKW, General for Special Duties Eugen Mueller. Judge: myself and Reichskriegsgerichtsrat. SPONECK was sentenced to death, the loss of the right to bear arms and all the usual indirect results. The sentence was confirmed as such by Hitler, but the execution was changed through clemency to 6 years imprisonment, retention of the right to a pension and military rank and the support of dependents. I presume that this measure is in accordance to all Goering's offers, who in his youth had served in the Cadet Corps together with SPONECK. To my knowledge SPONECK was placed in the Fortress Garmishain, where during the course of the following week he sent extremely insulting statements to a number of various offices, so that for a time there was some question as to whether a new trial would not take place.
As I have heard through hearsay SPONECK is supposed to have greatly misused the freedom he was entitled to as a fortress prisoner. It is said that he is supposed to have joined the resistance movement while in the Fortress and that for this reason, i.e. not in any way connected with the incidents which occurred in the Crimea, he was shot by the Gestapo.
As far as I have been informed the case of SPONECK was the first action of its kind which was brought against a German General. I have made this report after 5 years entirely from memory. I have no documents at my disposal. However, I believe that, at least, I have not erred in any of the important details.
There follows the jurat and then the signature of Dr. Karl Schmauser. Continuing on page 5, Dr. Schmauser discusses the Ziehlberg case.
"I, Dr. Karl Schmauser, declare and depose:
1) Although General von Ziehlenberg had lost an arm at the front in Italy, he nevertheless again reported for active duty at the front line, as commander of division, was subsequently posted at the central eastern front, if I remember correctly. Since May 1944, this division had been engaged in major retreat and disengagement operations.
"General Staff officer Major Kuhn had been the senior general staff officer of the division (Ia) since May 1944. As far as I remember, Kuhn had been employed continuously for 3 to 3 1/2 years in the organisational section of the general staff. Brigadier General Stieff, who afterwards became known from the events of 20 July 1944, had been his immediate superior officer and, by the way, had characterized Kuhn in his last service record as a "convinced National Socialist" or words to this effect. Until spring 1944, Kuhn had been engaged to be married to a niece of the Colonel in the General Staff, Stauffenberg and had been on intimate terms with Stauffenberg himself. However, the engagement with the countess Stauffenberg was dissolved, because Stauffenberg's family was deeply catholic, whereas Kuhn displayed strictly protestant views. His friendship with Stauffenberg, however, was not affected by this. Moreover, Kuhn had been on friendly terms with the Col. in the General Staff, Von Treskow, who also had been implicated in the events of 20 July.
"In company with these officers Kuhn had been a member of that circle of persons who had already attempted to blow up Hitler in 1943. This attempt could not be carried out at that time because, if I remember correctly, the secret military police found the explosive prematurely in December 1943 at headquarters, hidden away under moss.
Approximately in March or April 1944 Kuhn again brought explosives from the front to Berlin and thence to the Fuehrer's Headquarters. These were the very same explosives by means of which the attempt of 20 July was carried out.
This connection naturally had not been know before.
"General von Ziehlberg who, as the chief of the compentent department of the personnel office, had handled matters in regard to the personal affairs of the general staff officers, had known Kuhn before, although only superficially and, from what Kuhn told him, knew of the latter's personal and family relations with Stauffenberg.
"2) On or about 27 or 28 July Ziehlberg received a wireless or telephonic communication from the army group which stated that a staff officer would come to see him that very same night in order to give him an extremely important order. Particulars in regard to the order would be explained by the officer personally.
"On the same evening a serious engagement with the Russians had taken place, in the course of which the Russians made a gap in the front several kilometres wide. This gap could not be closed again.
"The designated officer from the staff of the army arrived about 6 AM at the command post of the division. He at first went to Ia (Kuhn) and to the adjutant. The discussions held there never became known. In particular it could not be established for certain whether he had not informed Kuhn of the contents of the order entrusted to him for delivery before he had seen Ziehlberg.
"After about half an hour or an hour Ziehlberg arrived. The officer then gave him the order. Ziehlberg opened the envelop and read the order in the presence of Kuhn, the division adjutant and the officer delivering it.
"The order read as follows: "Major Kuhn is to be arrested immediately and brought to Berlin accompanied by 2 officers.
Any opposition is useless." Ziehlberg did not know what to make of this order. He decided to let Kuhn read it in the presence of the other officers. Kuhn read the order without displaying any signs of emotion. Remembering that Kuhn had been on friendly terms with Brigadier General Stieff and Count Stauffenberg who had played a leading part in the bombing attempt that had taken place 8 days earlier, Ziehlberg now asked Kuhn whether he had been involved in the bombing affair. Kuhn denied this. Ziehlberg then returned to his adjoining hut in which he lived. He then entertained misgivings whether Kuhn had not purposely lied to him. However, he desisted on purpose to undertake anything against Kuhn in order to give him -- in accordance with the prevailing code of honor of the officers corps -- an opportunity to shoot himself in case he had been implicated. He then shaved himself and took his breakfast and returned to the combat post after an interval of about half an hour. Arrived there he found that the officer who had delivered the order, Kuhn, the division adjutant and the special missions staff officer were still there.
"Ziehlberg, on entering, overheard Kuhn request the 2 officers to inform his mother and to forward his personal belongings to her. Ziehlberg again asked Kuhn, whether he had anything also to say. Kuhn again said: "No". Ziehlberg then told him that he now intended to inspect the point of penetration in order to survey the situation on the spot. He expected to be back at 14 hours. Until that time the command post should be moved back to a designated position. Kuhn was ordered to go to the new command post. He, Ziehlberg, would again discuss the matter with him after his return in the afternoon and then take the necessary steps. Ziehlberg purposely did not inform one of the staff officers of the state of affairs or to charge one of them to remain in Kuhn's company. He did this in consideration of Kuhn's sense of honor and his position as senior general staff officer of the division.
He then left for the battalion affected by the breakthrough. After about 1/2 hour Kuhn also got in his car, however he did not drive in the direction of the new division combat post at the rear, but toward the gap in the front. He left his car and advanced along. Without being challenged or shot at, he deserted to the enemy. German soldiers who had been taken prisoners by the Russians on the sector in question, sighted Kuhn on two separate places and recognized him beyond any doubt.
"One of these returned soldiers, I believe a Master Sergeant, overheard Kuhn ask the Russians to take him to Moscow immediately, as he had to give most important information."
Now comes the most important part of the affidavit if your Honors please:
"3) Proceedings were instituted against Ziehlberg, because he had failed to place Kuhn under "immediate" arrest and/or to take the proper steps to secure his person, in violation of the order from the "highest authority". The trial was to take place at once before the Supreme Court, as far as I remember on the very same day. For reasons unknown to me, the trial was to be assigned to a "small" senate, established on an experimental basis, and composed of only three judges (a professional judge and two officers)."
DR. LATERNSER: If it please the Tribunal, I object to the second part of the affidavit, i.e., from page 4 onwards. I have not yet objected to it before but have to do it now. It is quite manifestly hearsay evidence. The affiant ought to have been present at all these events.
MR. FENSTERMACHER: The affiant was a judge which appears on page 9.
DR. LATERNSER: No, that is not correct; it follows from this that he was not the judge.
PRESIDING JUDGE BURKE: The Tribunal will attempt to evaluate the portion of the affidavit that may be material and will dispose of it accordingly. You may proceed.
MR. FENSTERMACHER: Continuing from the middle of page 8, about the first trial of Ziehlberg:
"As its chairman acted a judge who was only recently transferred, and merely temporarily assigned to the Reichsgericht (Reich Supreme Court). During the trial Ziehlberg pointed out that he relied on Kuhn's assertions that he, Kuhn, was not actually connected with the events of the 20th of July and the circle of its perpatrators. He thought it impossible that a general staff officer would lie to him and that at the same time he also could look him in his eyes.
"The senate found Ziehlberg guilty of negligent disobedience and sentenced him to a prison term of somewhat under one year. (I do not remember anymore the exact term). After this sentence had been imposed on Ziehlberg, he was interrogated by the General assigned for Special Duties with the High Command of the Army, and his legal advisor, a judge-advocate-general."
THE INTERPRETER: Would you give the page number please?
MR. FENSTERMACHER: Just a minute. It is on page 10 of the Englist memeographed copy.
THE INTERPRETER: Could you please give the page of the original document?
MR. FENSTERMACHER: I don't think I have the page of the original document. You can't find the paragraph beginning: "The Senate found Ziehlberg guilty"?
PRESIDING JUDGE BURKE: Mr. Fenstermacher, at this time, we will take our recess and that will give you a little more opportunity to find the place.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
JUDGE BURKE: You may proceed, Mr. Fenstermacher.
MR. FENSTERMACHER: Thank you, Your Honor, I should like to announce that I am in error, and not Dr. Sauter and Dr. Rauschenbach, with respect to the war diary of the General Staff of the Southeastern Army and for Army Group Southern Greece. I think what confused us was that our record shows that the War Diary of the Commanding General Greece, Commanding General Southern Greece up to August, 1943, were sent. This document referred to as Exhibit 665 relates to a period after August, 1943, so the Prosecution would like to withdraw NOKW 2791, which was offered as 665.
DR. SAUTER: Dr. Sauter, for the defendant Lanz. If it please the Tribunal, though this formally finishes with this exhibit, I would still like to point out certain aspects. The court ruling was to the effect that these war diaries be submitted completely. If I understood the opinion of the Court correctly, the Court attached supreme importance to the fact that this material be submitted in completeness so that the Court would be in a position to gain an appropriate picture of the whole situation. This examination, however, shows us that the court ruling was not adhered to. A number of war diaries were submitted to us and we, of course, assumed that is the complete material. Today, unfortunately, we have to ascertain that important matters which might also have been important for the defense have not be submitted. I do not consider that a proper compliance with the ruling of the Court. That concerns principal aspects of this matter.
MR. FENSTERMACHER: Your Honor please, my understanding of the court's ruling was that the defense was entitled only to the war diaries if we introduced excerpts from them. Since we didn't introduce any excerpts from this particular unit the defense is not entitled to have them. It wasn't part of the Court's order, and so, of course, the war diary of this parti cular unit was not sent.