AFTERNOON SESSION (The hearing reconvened at 1330 hours, 16 January 1948)
THE MARSHAL: The Tribunal is again in session.
PRESIDING JUDGE BURKE: Mr. Fenstermacher, at the opening of the morning session, Mr. Rapp made inquiry about certain photostat copies of documents. Do you know whether that matter has been disposed of or not?
MR. RAPP: If your Honor please, this inquiry was solely directed toward defense counsel.
PRESIDING JUDGE BURKE: Yes, that is what I mean.
MR. RAPP: And we are arranging it amongst ourselves.
PRESIDING JUDGE BURKE: Very good.
The other matter was the determination of Dr. Laternser as to whether or not the order of the Tribunal covered the item which you had in mind.
DR. LATERNSER: If it please the Tribunal, meanwhile I have studied the ruling of the Court, as the Court had announced at the beginning of the afternoon session of 14 August. In this order, I am quoting a short part. The Court ordered:
"The Tribunal rules, therefore, that the war diaries, documents, and other papers, from whatever documentary evidence is preferred as evidence by the Prosecution, are to be made available to the Defense."
This is followed by an enumeration of the possibilities under which the Prosecution could effect the presentation of these documents.
I should now like to draw the attention of the Court -- I shall be brief -- to the Prosecution Exhibit 42 contained in Document Book II on page 23. If you will turn to the last page of this document, you will see that it is that copy of the original which was distributed to the war diary, AOK 42. When I looked it up I doubted whether the war diary was extant or not yesterday, after Exhibit 664 had also extracted from the war diary, been submitted, I now think that I can maintain with a fair degree of certainty that this war diary exists and had not been made available although the Exhibit 42 had obviously been extracted from the war diary.
We are then in the position that this material is fragmentary and that the Prosecution, in my view, ought to decide to withdraw Exhibit 664; if they do not, I shall move that it be stricken because, according to the ruling of the Court, they were obliged to make available this material to the Defense.
That is all I should like to say on this topic.
MR. FENSTERMACHER: Your Honors, I believe Dr. Laternser is still misunderstanding the order of the Tribunal. He seems to believe that because the initials "KTB" are on two of the complete documents -- not excerpts, but complete documents which the Prosecution introduced --, that, therefore, the Prosecution has in its possession the entire War Diary.
We never offered any excerpts from the war diary of the 23rd Army during the time it was under the command of Dr. Laternser's client. If we had he would have been entitled to ask us to produce the entire war diary and we would have done so. I think the very fact that we didn't introduce excerpts from every other war diary, would in itself almost convince everyone, I believe, that the war diary was never captured.
Dr. Laternser's argument seems to be akin to this: that if I have a spoon with the initials "GH" on it, I must, therefore, have in my possession all of the silverware of the Grand Hotel.
I submit he is still misunderstanding the order of the Court.
DR. LATERNSER: If it please the Tribunal, may I reply to this? I base my statements on the text of the Court order which explicitly states that such war diaries, documents and other documentary evidence from whatever documentary sources whatever they may have been excerpted and proferred by the Prosecution ought to have been made available to the Defense. I do not maintain that the Prosecution possesses these documents in Nurnberg, but I do contend that they are in Washington. How else could these Exhibits 42 and 664 belong to the war diary unless the war diary were not available?
I was still in doubt regarding Exhibit 42; but now, since recently a new exhibit has been offered and I am unable to clarify the context of this exhibit, I do maintain that this War Diary is extant.
It may be a chance if it happened only once but if the same thing occurs twice it is very improbable that it was merely a matter of chance.
MR. FENSTERMACHER: Exhibit 42 which Dr. Laternser is referring to, is, coincidentally enough, the List order of 5 September 1941. It is introduced here in its entirety -- no excerpts -- and I assume when Dr. Laternser says it is from the war diary he means the initials "KTB" are somewhere in the corner. That does not appear on the translation; but accepting for the purposes of argument in Dr. Laternser's assertion, I think that what I previously said covers the point.
I can well understand his concern over the introduction of these two documents, the List order of 5 September and the List order of 30 October 1941. I don't see any cause for this outburst simply because we have not offered evidence in its entirety.
DR. LATERNSER: If it please the Tribunal, I am not saying that it is merely a fragmentary document. The document in itself is self-contained but if you see that there are six copies and that it is a sixth copy and if you refer to the distribution list, you will see that the sixth copy was sent to the war diary, it must then originate from the War Diary. Therefore, Prosecution is bound by order of the Court to produce the war diary here.
MR. FENSTERMACHER: Your Honor, I think it should be borne in mind here we are dealing with a case of captured documents. In view of the fact that there are initials on certain of these documents, there are no indications the entire diary was captured. These particular copies may never have reached the war diary itself. They may have gotten mixed up with some other files, with the files of the Commander-in-Chief, in the files of the Armed Forces Commander Southeast, which was the simultaneous office of the 12th Army at that time.
We introduced excerpts from the 12th Army files, I believe, during 1942, and the war diary of the 12th Army, as I recall, from July to December 1942, was sent here because we had introduced excerpts involving the months March and April 1942.
Now, if we did that, it shows that Washington was complying with the Court's order and it certainly can be assumed that Washington was complying with the Court Order with respect to any earlier date.
DR. LATERNSER: If it please the Tribunal, may I also comment on this statement? This, of course, is a pure conjecture if the Prosecution states that these two orders which he refers to may possibly have become mixed up with other files. That is something extraordinary. I refer to the usual routine and in normal routine the document does not in fact reach the agency to which it is channeled.
The Prosecution pleads that something out of the ordinary took place. May I point out that the activity reports of the Armed Forces Commander Southeast for 1942 did arrive -- that is for the period in which Field Marshal List had already left the Balkan area; but I keep on returning to my opinion that if two documents from the same period from the war diary are available then the war diary is also extant and, unless that is clarified, then I am entitled to move that the document be stricken as the Prosecution would expect the Court to decide on evidentiary material which is only available in part.
PRESIDING JUDGE BURKE: Since the matter appears to be one involving some dispute, the Tribunal will take the matter under consideration and make a finding at the opening of the afternoon session at three-fifteen.
You may proceed.
FRANZ von HARLING - Resumed CROSS EXAMINATION (Continued) BY MR. FENSTERMACHER:
Q. Colonel, just prior to the noon recess we were discussing your affidavit on behalf of General Foertsch in which you discussed certain atrocities which were committed by the partisans. I then asked you whether you recall any atrocities committed on the German side and you mentioned an SS atrocity and I believe I asked you then why you didn't mention that particular atrocity in the course of writing your ten page affidavit. Could you answer my question now?
A. I have not included it in my affidavit because I did not remember it. The cases mentioned in the affidavit were very clear in my memory because they were discussed in the Oberkommando and the Commander-in-Chief Fiezhar von Weichs had ordered an investigation and punishment of the guilty.
Q. You just don't happen to have a very good memory for the atrocities committed by the Germans, isn't that correct, Colonel?
A. I would probably remember it if I had myself been on the spot and had witnessed all these incidents and events with the divisons and battalions. I have gone through a good many things in those years but I do not remember any definite excesses -- only the three cases mentioned in my affidavit.
Q. Well, now, you were down there for a long time and you saw all the reports and attended a lot of conferences and, as a matter of fact, you say in your affidavit on behalf of Geitner something to this effect. This is on page 16 of Geitner Book III, Document Book No. 57, Exhibit 43, paragraph "a". You talked about ideological and political antagonisms and then you say:
"According to my indubitably very detailed knowledge of conditions in the Balkans."
Aren't you holding yourself out as something of an expert on what was happening while you were down there.
A. I would like to say in connection with this that by virtue of my activity in the Oberkommando Southeast I probably had a very thorough knowledge of the ideological conflicts which I referred to, particularly because through my liaison officer with the Foreign Office I had a certain contact with the German envoy whom I met also on offical business from time to time. To be added to this is the fact that I also endeavored to establish contact with the enemy; that is, the partisans. I have personally met some partisan leaders under General Mihajlovic and I also had connections with Tito via individual gentlemen. May I remind you in this connection of the prisoner exchange point which we had arranged for acting against orders so that we received our prisoners back from Tito.
Q. I think you have mentioned all that in your affidavit. We don't have to go over it again. Let me just ask you this.
You recall the Commando Order, don't you?
A. Certainly.
Q. Do you remember its being carried out in the Southeast?
A. I do not recall one case in which it was enforced but I do recall several cases where we quite clearly contravened the Fuehrer Order. I remember Brigadier Davis, Captain Hopkins and other cases. In one case we arranged for a surgical operation, in another we dispatched a prisoner by special plane from his place near Athens to Belgrade and I also recall in this connection that -- and I remind you that certain of my chiefs asked for a surgeon in order to have a member of the British Commando forces operated on so as to save his life.
DR. RAUSCHENBACH (Counsel for defendant Foertsch):
I object to the questions in connection with the Commando Order. I expect further questions in connection with it will be forthcoming. This is a cross examination. The Commando Order is a very special subject. It is not mentioned at all in the affidavits submitted by the defense on behalf of the defendant Foertsch.
PRESIDING JUDGE BURKE: The objection will be overruled.
Q. Colonel, I wonder, would you take a look at this document. This is NOKW - 1496 which is offered as Prosecution Exhibit 668. Colonel, this apparently refers to a telephone conversation which you had with the Wehrmacht Fuhrung Staff in Berlin on or about 16 July 1942 regarding the treatment of seven Englishmen in connection with captured bandits in the Balkans and it is in reference to the treatment of seven Englishmen captured as bandits, whether they are to be treated as commando members or transferred to the SD, and in the second paragraph there is some reference to the commander-in-chief Southeast regarding that the SD does not follow the Commando Order.
What is this all about, if this refreshes your recollection?
A. The word "Brac" does recall things to my mind; as far as I recall -- I am almost certain -- it refers to the case "Churchill". Churchill was at the time leader of a commando on the Island Brae. I remember that at the time he attacked with drawn sword and bagpipes Churchill was at the time to have been interrogated by the Ic of the 2nd Panzer in the area. He was transferred from Brac, from the island Brac, to the area of the army headquarters as far as I recall. Then, contrary to our special washes, i.e., the wishes of the commander-inchief Southeast, and in spite of our efforts, Colonel Susskind-Schisendy of the office in the OKW, he was taken away by plane of the Reichfuehrer SS and was put somewhere in Northern Germany. The ordnance officer of the Ic of the 2nd Armored Army, upon the wishes of the Army Group, went to Northern Germany in order to talk to Churchill at his new location. It was our right as Ic's because we wanted to know what he knew about the enemy.
He was then accommodated in a very well furnished private house so there was no special treatment inflicted upon him by the SD, but he was transferred directly. Whether that had certain foreign political reasons I don't know, nor what other reasons there may have been for this.
Q. You say then that the troops involved here are troops of the Second Panzer Army?
A. I said that the Brac incident happened within the area of the Second Panzer Army. Brac belonged to the command of the Second Panzer Army.
Q. And then when you say in the -- when it said here in the second line, "Commander-in-Chief South East does not know whether the troops have treated the seven Englishmen," the troops there are the Second Panzer Army troops, isn't that correct?
A. Certainly, that probably does refer to the seven Englishmen in Brac. No, I beg your pardon, they were not together with bandits. That was an attack by a British Commando.
Q. Then when it refers here to the treatment of the seven Englishmen which is being given the Englishmen by troops, who does the word "troops" refer to? Which troops?
A. Well, that can only refer to army formations.
Q. And now, Colonel, didn't you just say that the Island of Brac was in the area of the Second Panzer Army? Isn't it quite clear from the context that the troops involved are the troops of the Second Panzer Army?
A. They ought to have been, according to the text.
Q. Now, Colonel, when it says here "treating the Englishmen as Commando members or transferring them to the SD," what does that mean? What kind of treatment would they have been given as Commando members?
A. If they had been transferred to the SD, then they received a treatment, either such treatment as was accorded to Churchill -- that they were treated well for political reasons like Churchill -- or the very contrary. I have never been present myself but "Special Treatment" usually meant liquidation.
Q. When it talks about treating as Commando members, that clearly means treating them "Sonderbehandlung" with special treatment depradaling them.
That is correct?
A. They had to be treated by the SD on the basis of the Fuehrer Order, but you couldn't say that the troops effected it. In cases where we heard about such cases or witnessed them ourselves, at least as far as I know, these orders were not carried out.
Q. Now, Colonel, we are getting a little confused here. If you will read the document again, it says "Have treated the seven Englishmen captured with bandits as Commando members or transferred them to the SD." Now that clearly implies two different types of treatment, doesn't it? The first type is treating them as Commando members, and I take it that means in accordance with the Commando Order. And the second type is transferring them to the SD. Do you follow?
A. Yes, I can, but the SD certainly had the same orders as we had at the time.
Q. Well now, if the Englishmen were transferred to the SD, they would be given special treatment, wouldn't they -- the Englishmen?
A. I would assume that happened but I don't know. I know of one case in which the SD also refused to do it -- to carry out the order, that was very interesting -- it seems as if from some high authorities some instructions had been sent to the SD to restrain them.
Q. Now, Colonel, look down below there where it says "Commanderin-Chief Southeast further reports that the SD does not follow the Commando Order." What did he mean by that -- that the SD was not liquidating the Kommandos in accordance with the order.
A. Well, that would have been the same case or a similar case in which we ascertained, I think it was somebody in Belgrade as far as I recall, we had talked with the SD, who said at the time that they would not inflict special treatment on these people, although that was prescribed by the original order.
Q. Now let's get the theory of the thing straight first, Colonel, before we go into what you say actually happened.
The theory was that if the troops captured Kommandos, they were to execute them isn't that true?
A. No, as far as I know the order, they were to be surrendered to the SD. The order ought to be available.
Q. What would the SD do to the captured Englishmen or captured Kommandos?
A. I can only repeat what I have already said. Normally, we understood the term "special treatment by the SD" to mean the liquidation -- that means they were dispatched to the world beyond but I recall -and that is also stated in the order -- that toward the end the SD also did not carry out this order.
Q. Do you remember certain Kommandos being turned over to the SD by army troops?
A. No, not a single case, not a single case.
Q. You don't recall the case of these seven Englishmen being transferred to the SD?
A. No, I do not recall that. I do remember this affair with Churchill on the Island of Brac.
Q. Who was the Commander-in-Chief Southeast at this time?
A. Fieldmarshal von Weichs.
Q. Colonel, I would like you to take a look at this other document too. This is NOKW-227, which is offered as prosecution Exhibit 669. Suppose we look at this together, Colonel? You will note the first communication is from the Commander-in-Chief Southeast dated 16 April 1944, and it is to Stalag 7a, Luckenwalde through VIIth Service Commander Ic.
"C-in-C, SE requests the Capt Blyth sent here from Rhodes be turned over to the SD there, according to the Fuehrer Order of 18 Oct 42. The SD should be ordered to hold Capt. Blyth first of all at the disposal of the OKH. Interrogation takes place according to order of OKH It is signed Commander-in-Chief Southeast, and I believe over in the left-hand corner is your signature von Harling, Lieutenant Colonel.
Would you then turn to page 2 of the document which you have in your hand, page 3 of your Honors' copies? This is a communication from the Commander-in-Chief Southeast of 27 April 1944, a little after the first communication, and it is to Army Group E.
"1.) English Radio operator and Greek Sailor are to be held for eventual missions as witnesses there under the closest guard.
"2.) The remaining prisoners are to be turned over to the SD for interrogations concerning them and final special treatment according to the Fuehrer Order."
I believe again in the left-hand corner is your name von Harling, Lieutenant Colonel.
Now would you turn to page 3 of the document which you have in your hand, page 2 of your Honors' copies, communication from the Commander-in-Chief Southeast of 3 June 1944, again to Army Group E and the subject is English radio operator Carpenter, Greek sailor Lisgaris. They are apparently the two persons which were mentioned in the previous communication of 27 April, 1944.
"By command of OKW/WESt, the English radio operator Carpenter and Greek sailor Lisgaris captured at Alimnia are no longer needed and are to be released for special treatment according to Fuehrer order."
And again there is your name in the left-hand corner von Harling.
In order to complete the complex, will you turn to page 2 of the original document, page 4 of your Honors' copies? There is a communication to the Commander in Chief Southeast. Ic, I believe that was your office, Colonel. The subject English Kommandos at Alimnia.
This is under date of 4 June 1944. I believe I should have read this prior to the preceding document because it comes one day earlier than the communication from the Commander in Chief Southeast to Army Group E. It reads:
"Since details transmitted are sufficient for presentation to the Turkish government, according to information received from the Foreign Office, the English radio operator Carpenter and Greek sailor Lisgaris captured at Alimnia are no longer needed and may be released for special treatment according to Fuehrer order."
And it is signed by Warlimont. Who is Warlimont, Colonel?
A. He was the Deputy Chief of the Wehrmacht Operations Staff.
Q. Now we are apparently talking about two different cases here, aren't we? First a case involving Capt. Blyth who was turned over on or about the 16th of April, 1944. Then the second case involving the English radio operator Carpenter and the Greek sailor Lisgaris.
Do you recall now knowing about turning over these men to the SD for special treatment?
A. I do recall the first case. I know that at the time a British officer was to have been transferred to Luckenwalde. The affair with the English radio operator and the Greek sailor, I can only put in some kind of connection with the English officers I mentioned previously in which we transferred the officer to Belgrade. The other one was also brought to Belgrade. They both were captured through normal operations.
Q. If you told me, Colonel, 2 minutes ago that you didn't remember turning over any men to the SD for special treatment? You had forgotten about these two case, I assume?
A. No.
Q. You mean you had forgotten?
A. Yes, I had forgotten it, certainly.
Q. You knew at the time you turned these men over they were going to be liquidated, didn't you?
A. Yes, that is true.
MR. FENSTERMACHER: No further questions.
Court No. V, Case No. VII.
CROSS-EXAMINATION BY DR. RAUSCHENBACH (Counsel for the defendant Foertsch):
Q Witness, the prosecution has just confronted you with your statement that General Foertsch had been as it were the moving spirit in his staff, you also said in this connection that you did not deal directly with Field Marshal von Weichs, you and the other members of your staff, but that your chief had been General Foertsch. I now am asking you isn't that something special?
A It is nothing out of the way, it is the normal routine in an army command that all incoming matters are channelled to the chief.
Q General Foertsch, as chief of the general staff was your superior?
A Yes.
Q And he was also the superior of the other staff officers?
A Yes.
Q Of all officers, or were there exceptions?
A There were exceptions. As far as I recollect, exceptions were officers outranking the Chief of Staff but working under him.
Q Was the legal officer in section 3, was he also subordinate to the chief of Staff?
A I think not, he being an official.
Q Witness, were the subordinate commanders, were they subordinate to General Foertsch?
A No, they were not even subordinate to the commander in chief, but to the military commander, the O.K.H.
Q And you now refer to particular cases, I am referring to the troop commanders?
A The troop commanders were not subordinate to Foertsch but to the commander in chief.
Q I am now referring to your remarks about General Foertsch as the moving spirit, is that something extraordinary that the chief of staff is the moving spirit in his staff?
A No, in fact he ought to be that.
Court No. V, Case No. VII.
Q Was he also the moving spirit of the subordinate commanders or did they have their moving spirits?
A They had their own chiefs who were to act as their moving spirits.
Q Witness, I now refer to the documents which have been handed to you. First, regarding the treatment of the seven Prisoners of War, the seven Englishmen, do you still have the document?
A No, I have not.
Q Witness, please read the date.
A 16 July 1944.
Q I will give you the original documents.
A 16 July 1944.
Q Was General Foertsch the chief of staff at that time?
A No, I think not. I think that I cannot recollect myself, in August of 1944 General Winter was the chief of staff. That was in July 1944.
Q Witness, I then wish to tell you that in your affidavit which you made on behalf of General Foertsch, I want to quote the following sentence; under section 1: "I have known General Foertsch since 31 May 1943, the date of my transfer to the Southeast High Command. As chief of the General Staff he was my immediate superior, with him I came in contact almost daily both officially and unofficially in our joint activities till the day I was transferred, that is the beginning of March, 1945, is that correct as you stated in your affidavit?
A Yes, certainly. I just cannot remember the dates considering the changes of my chiefs. Nobody could expect me to, but in August of the summer of 1944 it must have been General Winter and later it must have been Herr von Goetenfeld, but what I put in writing I could ascertain beforehand so that it is correct.
Q Well, refer again to the document which is available to you in the photostat. On the top left hand corner, you can see the letters WFST/QU.2? What does that mean?
Court No. V, Case No. VII.
A Qu.2 that was an agency of the O.K.W.
Q That was the O.K.W. was it not and the notice "telephone call Southeast 1-c". Had there been a previous inquiry by the O.K.W.?
MR. FENSTERMACHER: Your Honor, I object to this, I believe Dr. Rauschenbach is leading this witness.
DR. RAUSCHENBACH: I will then restate my question, so that it won't be a leading question.
THE PRESIDENT: Very well.
BY DR. RAUSCHENBACH:
Q This leading subject, what do you gather from it as to from what agency it emanated?
A From the files of the O.K.W.
Q And what does the notice "telephone call southeast 1-c" mean?
A that must have been a call which the commander southeast had with the Wehrmacht Fuehrung Staff.
MR. FENSTERMACHER: I object to Dr. Rauschenbach qualifying the witness as to what files in the Wehrmachtfuehrungsstab. He was down in Belgrade at the time and the Wehrmachtfuehrungsstab was up in Berlin.
THE PRESIDENT: Unless the witness has first hand knowledge of the matter, I think he should not testify.
BY DR. RAUSCHENBACH:
Q I can rephrase my question, if the Tribunal please. What does the agency described in the top left hand corner of a document denote?
A It refers to the one who is making the document.
Q Thank you. Witness, please read the document once more and tell me whether it can be gathered from this document that members of a Commando troop had been liquidated?
MR. FENSTERMACHER: Your Honor, please, I object to that. The document speaks for itself.
MR. RAUSCHENBACH: If it please the Tribunal, the objection that a document is self evident is no objection. I am asking the witness to explain it. I am merely asking him.
Court No. V, Case No. VII.
THE PRESIDENT: Very well, he can explain it if he can.
THE WITNESS: May I now speak?
DR. RAUSCHENBACH: Certainly.
THE WITNESS: The whole document is one more proof of what I have already said in my affidavit. When I learnt about the Commando order regarding the treatment of troops. When I learned of that order, I, with the knowledge of my chief, had a long struggle with the O.K.W. pointing out the folly of this order. I have further written and testified that in the cases of which I had knowledge of the capture of commando members, I took the view that the commando order was not to be enforced. This document proves, as I have already said, how I pursued this struggle with the O.K.W. with the object of inducing the O.K.W. to issue an order to us that, we hoped, would countermand this lunatic Fuehrer order and which would take from us the burden which we felt in having to carry out such treatment as we were ordered to carry out with regard to Commando troops.
Q In the second sentence of the note you say "the Commander Southeast uses this occasion to call attention again to the numerous contradictory orders concerning the treatment of Anglo-Americans captured with the bands;" does this prove that you were not clear?
A No, the Fuehrer order became rather confusing, I do recall that now, but owing to the fact that the S.D. at the time felt no longer authorized or at least they said they were no longer authorized, nor did they have the instructions to inflict special treatment on commando troops, the S.D. must then have received some instructions or order, which we by the way never learned about, that this order was not to be enforced in the old way.
Q A second document has been submitted to you regarding the English Captain Blyth and of the other two English soldiers, it bears the date of the 16 April through May 1944; was General Foertsch at that time chief of staff?
A No, not in May, 1944.
Court No. V, Case No. VII.
Q In April?
A No, neither in April.
Q Thank you, I have no more questions.
REDIRECT EXAMINATION BY DR. FRITSCH:Q.- Dr. Fritsch, counsel for General Rendulic.
Witness, I should like once more to refer to document NOKW-1496. This is the first document submitted and discussed by my colleague. Now, I am concerned with the following question: In Paragraph 1 and in Paragraph 2, is it the same case that is being referred to, or are they different cases? Will you please read this note once more, thoroughly?
A.- You mean in the first passage and in the second passage, are they the same case?
Q.- In the first paragraph it refers to seven Englishmen captured with bandits. That is case 1.
MR. FENSTERMACHER: Now, if Your Honor please, the witness has already given an answer to that question.
DR. FRITSCH: The witness evidently did not understand my question and I am trying to make it clear.
MR. FENSTERMACHER: The witness has already said that the first paragraph and the second paragraph refer to one and the same thing. I submit defense counsel is bound by the answer of his witness.
JUDGE BURKE: That is my recollection of it. However, if there is any mistake about it, he may restate his original answer.
MR. FENSTERMACHER: Can we have the original question and the original answer, if the interpreters know it, or, if not, could the court reporter read it?
JUDGE BURKE: Would you have the German court reporter get the preceding question and the answer?
INTERPRETER WEBER: The original question was to the effect as to whether Paragraph 1 and Paragraph 2 concerned identical cases. Whether case 1 and case two were identical, and the answer was that the witness asked whether the paragraph 1 and 2 were, in fact, identical, whether they were being referred to as being identical cases.
MR. FENSTERMACHER: You haven't translated in German what the English interpreter just said.
DR. FRITSCH: I couldn't understand. It was not translated into German.
INTERPRETER WEBER: The witness asked whether counsel was referring to paragraph 1 or two.
JUDGE BURKE: Give your question in the identical way it was given to the witness and the answer in the same manner it was given.
DR. FRITSCH: Your Honor -
MR. FENSTERMACHER: I am afraid the court interpreters are not understanding Your Honor's instructions.
JUDGE BURKE: Perhaps I did not make them sufficiently clear. Please repeat in the identical language that was included in the question asked by counsel and give them in identical language the response that was given by the witness.
MR. FENSTERMACHER: Would your Honor consent to having the German court reporter read his transcript notes into the microphone?
JUDGE BURKE: Any fashion that might ultimately secure the desired result would be satisfactory to me. There seems to be a lot of unnecessary confusion. Read slowly.
INTERPRETER SCHARF: "Question: I am concerned with the following questions: Does Paragraph 1 and Paragraph 2 deal with the same case or are they different cases? Will you please read this note once more?".
"Answer: of the witness: You say the two cases 1 and 2 in the Paragraph 1, or in the first or second paragraph?
JUDGE BURKE: Do I understand that the witness in turn was asking for the interpretation placed upon the question by the interrogator rather than giving a direct answer?
DR. FRITSCH: Yes, Your Honor. The witness obviously did not understand my question and asked me to repeat my question. That was the purpose.