In the Pohl trial, for example, the prosecution submitted a trial brief. The Tribunal did not accept it any more since it was handed in after the final evidence and the final summation had been presented. During that recess we received trial briefs That is why I would think it more expedient if I may make the suggestion your Honor, that the prosecution give us their trial brief by at least one or two days before we have to hand in our final summations so that all defendants are being treated in the same manner, in this respect too.
HR. FERENCZ: Your Honor, in order for us not to be confused by all this double talk, I think at is important to take a look at the total picture of what the defense have been given and what they are being given now before we can judge whether the request being made is fair or not. You will recall the prosecution completed its case in two days. For four months the defendants have been allowed to bring in here anybody they wanted as witnesses, to offer such documents and such testimony as they regarded in any way connected with this case. All of it has been admitted. They have just been given the right to speak first and last in their closing statements, not only last once, but last twice. After the defense counsel has spoken the defendant will get up and speka. Now they ask that we give them our closing briefs before they prepare their closing statements. Your Honors know that the complete defense case is not yet in and that the prosecution went ahead with their rebuttal case before the defense had completed. This is a highly unusual procedure. We would have the right in any court to say we will not submit our closing briefs until the defense has closed their case. This the defense has not yet done nor have they indicated any intention of doing it within the next week or so, In view of every action which has been taken on the part of the court, and of the prosecution, it seems an affront for the defense to come in and say, "We cannot prepare our closing statement until we see now the prosecution views the case from their side."
Our closing statement has nothing to do with how they view the case. We are presenting our summary of the evidence which has been in few weeks and months. They are at perfect liberty to do it now. They have been at liberty to prepare it since we closed our case, and one has no connection with the other. to putting our statements in within the next five says, It would be almost impossible. But I believe that all the other reasons given make it necessary for us to view this thing as one unit and one whole in determining whether it is fair or not to require the defendants to make their statements regardless of whether we have our closing briefs in or not.
THE PRESIDENT: Well, Dr. Gawlik, I don't think you need fear that any undue advantage will be taken of your client or of any other defendant in this case because of any mechanical situation which arises and which cannot be met regardless of all the will in the world. You see that these trial briefs can't be handed to you in bulk on one day. They necessarily must be prepared and piecemeal put through the mill. They will be prepared translated, mimeographed, just as quickly as it is humanly possible to do so, and I am positive in my mind, and I am sure that I speak for my colleagues, that every defense counsel can well prepare his closing speech without waiting for that trial brief, which after all is not an anticipatory summation speech but something which is only an analysis of the testimony and an application of the law involved.
All trial briefs should be in by February 7th. If any defense counsel feels that he has not had the fullest opportunity to present whatever he intends to present and whatever is vital in the case, the doors of this Tribunal are always open. They will be open up to the very last moment, until the decision is read, and when it comes to a matter of justice, the courts are open at all times, even after the decision is delivered.
Who is ready now to present document books?
MR. HORLICK-HOCHWALD: If the Tribunal please, the Prosecution is ready to present Document Book No. IV. As I have told the Tribunal already two days ago, this is a document book which contains evidence in connection with the case of the defendant Rasch. I only want to put the documents in without commenting on them that they may have prosecution exhibit numbers.
The first document I offer is NO-5120 as Prosecution's Exhibit 243 on page 1 of the document book. On page 3 of the document book is Document NO-1076 which is offered as Prosecution's Exhibit 244. On page 11, Document NO-1074 offered as Prosecution's Exhibit 245. On page 16 Document No-1073 offered as Prosecution's Exhibit 246. On page 20 Exhibit NO-1075offered as Prosecution's Exhibit 247. On page 22, Document NO-1069 offered as Prosecution's Exhibit 248, and the last document on page 24, Document NO-1071 offered as Prosecution's Exhibit 249. That will be the complete document book. Document Book III of the Defendant Rasch - of the defendant Haensch - I beg the Tribunal's pardon - but I don't know whether his counsel is ready to present the document book, but I just heard now that the defense counsel for defendant Jost is ready to present his.
THE PRESIDENT: Yes. Well, then suppose we do that immediately after the recess?
Do you have something, Mr. Glancy?
MR. GLANCY: It is merely to inform the Tribunal the twenty-four hour rule was not met in the case of Book No. III. However, for expediency's sake, the Prosecution will waive and allow its presentation.
THE PRESIDENT: Yes, I am glad that you do.
DR. FICHT: Ficht for Biberstein. will rule about the objections which were raised by the prosecution and by the defense against the documents?
THE PRESIDENT: we will rule on those objections when we reconvene after the present recess, or perhaps at the end of the day when we will have heard the other objections which will probably be advanced to the documents which are to be presented during the remainder of the day.
(A recess was taken.)
(The hearing reconvened at 1530 hours.)
THE MARSHAL: The Tribunal is again in session;
DR. WIESMATH: Wiesmath, assistant for Dr. Schwarz, for the defendant, Jost. With the permission of the Tribunal, I shall submit Document Book III for the defendant, Jost. marie Jost, dated 21 October 1947, and certified on the 4th of December 1947. It comprises pages 1 to 6 of the third document book. Its contents are as follows, "Jost's critical attitude towards the party, his character, his attitude to the Jewish problem, his attitude with regard to Heydrich's execution orders, his rejection of Lohse's suggestion of making the Eastern territories free of Jews." I would like to draw the Tribunal's attention to the fact that Mrs. Annemarie Jost from May 1942 to September 1942 was herself in Riga. Her testimony about events during this time was based so to speak on her own personal knowledge and, therefore, is of special probative value. dated the 10th of December 1947, comprising pages 7 to 9 of Document Book III, "Contents: Responsibility of Jeckeln for executions. Lohse's policy in the Jewish problem. the 10th of December 1947, pages 10 to 13 of this volume, "Contents: Reports by the Einsatzgruppen, Einsatzkommandos, of the commander of the Security Police and SD." About the translation, I would like to say here "Commander of the Security Police and SD" should be translated, "Commander in Chief of the Security Police and SD". I continue in the index, "Reports of the Commanders of the Security Police and SC channel of command with regard to the Commander of the Security Police and SD", and here again I ask that it be translated "Commander in Chief of the Commanders of the Security Police and SD". The position of the Reich Commissioner for the Eastern territories and of the Generalkommissare, power to issue orders to the Commander of the Security Police and SD, or rather Commander in Chief of the Security Police and SD, and to the Commander of the Security Police and SD.
Activity of the Commander in Chief of the Security Police and SD in the Eastern territories."
As Exhibit Number 29, I offer Document J 29. This is a diagram which is offered as a supplement to the statements of the defendant, Jost, on the witness stand and which shows the position of the Commander in Chief of the Security Police and SD in the East. In the English translation of this first diagram, I have discovered that two completely different agencies have been translated with the same term, I mean here, the Commander of the Security Police and SD Eastland, and the Commander in Chief of the Security Police and Commander of the Security Police and SD. I have already suggested that the first be translated, "by Commander in Chief of the Security Police and SD". Furthermore, this diagram has suffered in clarity by being compressed, I, therefore, intend to make up a new diagram in English, and I ask the Tribunal for their kind permission to offer a photostat of the diagram to be made up new and to offer this later.
As Exhibit Number 30 I offer Document J 30 as Diagram Number 2. This diagram pictures the position of Einsatzgruppe A. The defendant, Jost, has made lengthy statements about this during his direct examination. 29th of December 1947, pages 16 to 21 of the third volume. "Contents: Jost's activity in the capacity as Head of Worms Police Headquarters. Rejection of interferences by the party, Jost's intervention on behalf of Dr. Rahn. The objective manner in which Jost conducted his office, and his popularity with the subordinates. Release of Parson Degen from detention."
Document J 32 is an, excerpt from the newspaper "Der Tagesspiegel" which concerns the abolishment of the death penalty by Russia, one of the signatory powers of the Control Council law, I shall skip this, since a document concerning the same or including the same content has already been submitted on behalf of Dr. Braune by my colleague, Dr. Stubinger.
As Exhibit Number 32, I submit Document J 33. This is a supplementary excerpt to the Document NO 3277 which was submitted by the prosecution in excerpt. This is in Document Book IIA, English page 133, Exhibit Number 56. This excerpt from the document, or rather this supplementary excerpt from this document is to prove that the events described in this document are supposed to have taken place in March 1942, that is, before the time that Jost started his job and before Jost's responsibility started.
This concludes the presentation of the third volume. The fourth volume is unfortunately not yet available in the English translation.
MR. GLANCY: The prosecution has no formal objections to register, Your Honor, except for the fact that it requests that the J 32 be stricken from the books as being entirely irrelevant. It is my understanding that it was not offered by Jost's representative.
PRESIDENT: The motion is granted, and that will be stricken from the record because it has absolutely no relevancy to the issued involved.
MR. GLANCY: Thank you, Your Honor.
DR. KOHR: Kohr representing Dr. Heim for the defendant, Blobel. I would like to submit the supplement to document book II for Blobel, This is only one document, but there might be one difficulty, the Tribunal may not have the English copy yet, but I am in a position to furnish the Tribunal with the copies which I have already received yesterday.
PRESIDENT: Do you have them there?
DR. KOHR: I have them here, Yes.
PRESIDENT: Let's have them.
DR. KOHR: I now offer Blobel's Document Number 12 as Exhibit Number 11. This is an affidavit of Walter Ostermann, dated 23rd of December 1947. Ostermann was a driver in the SD sector, Duesseldorf. That was at a time when Blobel was commander of the SD sector in Duesseldorf. Outside of that, he was in the Special Commando 4A from June 1941 until approx imately November 1942.
He was in charge of the motor pool of Special Commando 4A. This affidavit concerns itself primarily with a character testimony. Apart from that, it confirms that during his assignment in the East Blobel was frequently ill, and it confirms the statements about the time periods which Blobel made in the witness stand.
Your Honor, this would be the end of my presentation. I don't intend to submit any further documents on Blobel.
PRESIDENT: Very well. Any other documents ready for prsentation? Neumann?
DR.DURCHHOLZ: Durchholz for Schulz. Your Honor, I have my Document Book IV in German, the English translation has also been completed and is just being mimeographed, It is only a matter of 8 documents, and if I may nevertheless submit them, I would be grateful to the Tribunal. Dr. Hochwald has no objections.
MR. HOCHWALD: If the Tribunal please, I have seen the German text. I have no objections to Dr. Durchholz' offering the document book, but in order to be completely clear, I have objections against some of the documents.
PRESIDENT: Yes. We would be entirely willing to receive the documents now, even though we don't have the English version before us. That can be submitted later.
MR. HOCHWALD: It is perfectly all right.
DR. DURCHHOLZ: My Document Book IV, Your Honor, consists of 8 documents. I shall submit them in the order in which they appear in the document book. On page 260 we have Document Number 89, which I submit as Exhibit Number 88. This is an affidavit of the defendant, Schulz of the 10th of January 1948. In this he comments on a newspaper article in the "Moravian Journal" of the 23rd of March 1939 in Ulmitz. The complete copy of the paper is in the original document. This newspaper article, despite some contradictions on the part of German agencies, Schulz was successful in having it published. Dr. Benndar, the former Czech police president of Olmuetz, when Schulz had to take over the police office there, was not arrested by Schulz even though his arrest had been ordered.
Schulz did not do this. It was his consideration that in the case of Dr. Benndar, there was no reason for an arrest because the latter merely carried out the orders of his superior Czech officials as was his duty, and then this newspaper article is supposed to serve to confirm the statements of the defendant in the witness stand.
MR. HOCHWALD: If the Tribunal please, there is no objection on the part of the prosecution against these documents. I would only like to reserve the right to put in one of the other documents, at the utmost, one or two, of the evidence of the defendant, Schulz in Czechoslovakia.
PRESIDENT: You mean-
MR. HOCHWALD: As a rebuttal document.
22 Jan 1948_A_MSD_22_1_Mills (Lea)
DR. DURCHHOLZ: The next document is on page 263 -- this is document number 90 which I submit as Exhibit dumber 89. This is a mutual affidavit of Gerhilde Fleck and Dorothea Leitzinger, both from the city of Graz, of 3 December 1947. These two affiants were employees of the then office of the defendant in Graz in the year 1938, and they confirm, without being asked to do so, that Shulz was an excellent superior who only acted objectively and justly and who, in all official conferences, demanded a likewise conduct on the part of all employees. The next document is on page 265, Document Number 91, which I submit as Exhibit Number 90. This is an affidavit of Dr. Horst Hellauer, from Graz, of 30 November 1947. Dr. Hellauer Was, in the year 1938, a research collaborator of the Nobel prize winner, the Jewish counselor, Prof. Dr. Otto Loewy, who had been arrested before Schulz arrived there. He confirms that Dr. Loewy was correctly treated during his detention; that Schulz permitted this Dr. Hellauer to speak to this Dr. Loewy in prison without supervision, and that Schulz released Dr. Loewy after a few days. He continues that Dr. Loewy had told him that during his last interrogation before the Chief of the Gestapo in Graz, he had gained the impression that special importance was placed on his person and that they did not want to lose his work.
DR. HOCHWALD: If the Tribunal please, this last document presented by Dr. Durchholz I object to for only one reason. Dr. Durchholz presents as his next document an affidavit of Dr. Loewy who is the subject about whom all the time is spoken in this document, number 91. It is not understandable, and I do not think admissible, that a third affiant speaks about that what happened to the second affiant, if the name and the address of the second affiant is known to defense counsel, and if he obtained an affidavit from this man. I do think the correct way would have been that Dr. Loewy himself would have certified or would have executed an affidavit to the facts which are told to us by a third person.
THE PRESIDENT: You think that this is hearsay twice removed?
22 Jan 1948_A_MSD_22_2_Mills (Lea)
MR. HOCHWALD: That is right.
DR. DURCHHOLZ: Your Honor, in the affidavit of Dr. Hellauer those circumstances are contained which Dr. Loewy does not state in the affidavit which I shall submit next. Therefore, these two affidavits supplement each other.
MR. HOCHWALD: If your honor please that exactly was the reason why I objected against Document 91, as in the affidavit of Dr. Loewy things which Dr. Hellauer tells that they happened to Dr. Loewy doesn't testify to himself. That is the reason why. If the two affidavits would he identical the affidavit of Dr. Hellauer would be only corroborative evidence and not directly objectionable. I am objecting that somebody is testifying out of hearsay to things to which the man who is the subject of the affidavit could have testified himself in this affidavit.
THE PRESIDENT: Why didn't, Dr. Durchholz, the first man testify to all the incidents? Why did the second man need to say what the first man could have said?
DR. DURCHHOLZ: Your Honors, I myself tried to got the affidavit of Dr. Loewy. Dr. Loewy is living in New York though and I waited all this time for this affidavit and as a precautionary measure I had one of his collaborators give me an affidavit just in case Dr. Loewy's own affidavit would not have arrived. As the next affidavit I shall submit the explanation of Dr. Loewy and then I shall ask the Tribunal to decide whether the objection of the prosecutor about the affidavit of Dr. Hellauer should be sustained or not.
THE PRESIDENT: Very Well.
DR. DURCHHOLZ: On page 267 I offer Document Number 92, as Exhibit Number 91. This is the affidavit of Dr. Otto Loewy, now professor at New York University, college of Medicine, of the 6 December 1947. I only received this statement a short time ago directly from New York, In this, the affiant, Dr. Loewy, states that on 6 May 1938 Schulz had 22 Jan 1948_A_MSD_22_3_Mills (Lea) released him from protective custody and that this release came about in the most friendly manner and in the presence of his wife whom Herr Schulz had asked to be present.
MR. HOCHWALD: If the Tribunal please, may I now move that all other items as it is given in Schulz Document 92, Exhibit 91 -- that all items different from that which Loewy said himself may be stricken from the record.
THE PRESIDENT: Dr. Durcholz, I think you will agree to that.
DR. DURCHHOLZ: Yes. Of course, your Honor, I could not speak to the affiant, Dr. Loewy, and I did not prescribe to him what kind of an affidavit he should give me. I left it completely up to him. If I had had the opportunity to speak with him I would have taken all these facts into his affidavit.
THE PRESIDENT: Well, Dr. Loewy's statement, as much as we were able to get from you, because we don't have the text, seems to be clear enough.
DR. DURCHHOLZ: Yes, I am completely in agreement. As the next document on page 268, I offer Document Number 93 as Exhibit Number 92. This is an affidavit of the defendant Schulz of the tenth of January 1948. Schulz states here how he helped the Jews in Bemeen, those who remained in Bremen, as well as those who wanted to emigrate at their own wish. He states especially how he discussed all these problems with the representative of the Jewish community in Bremen, Dr. Rosenack, who emigrated to American in 1937, and how he discussed all these matters in the fairest manner. It is noteworthy that Dr. Rosenack and Schulz left each other with complete respect existing on both sides. I may also state in this respect that with the help of the Defense Center I was able to determine the present address of Dr. Rosenack in New York. Thereupon I wrote to Dr. Rosenack and asked him for an affidavit, but to this day I have received no answer. For this reason the defendant Schulz has described his relationship to Dr. Rosenack and the Jews in Bremen in this affidavit.
22 Jan 1948_A_MSD_22_4_Mills (Lea)
DR. HOCHWALD: If the Tribunal please, I do not want to take up the Tribunal's time with unnecessary objections, I do think that this document and the next document which is also an affidavit of the defendant are inadmissable for the simple reason that these two items to which he testifies are not new. He has taken the witness stand. He had ample opportunity to tell everything that he wanted to say. Of course the thing is the affidavits in themselves are unimportant, but I just wanted to say on principle these two affidavits in itself are not admissible as they are not refering to items which came up after the defendant Schulz was at the witness stand.
THE PRESIDENT: We'll rule on those objections at the end.
DR. DURCHHOLZ: I further submit on page 273, Document Number 94, as Exhibit Number 93. This again is an affidavit of the defendant Schulz dated 13 January 1948. Here he makes a statement giving the reasons why he left the Protestant Church and why this leaving the church does not mean that any SS member became an atheist. I offer this statement because after the examination of the defendant Schulz on the witness stand this question of leaving the church was hold up to the subsequent defendants repeatedly. As the next document I offer on page 275, Document 95, as Exhibit Number 94. This is the affidavit of Karl Heinz Bent of 19 January 1948. Bent states here that he met Schulz at the police school in 1941 in Berlin. Also that in 1943 it was said in Kiev that Schulz, because of his soft attitude, namely that he could not have carried out executions in Russia which had been ordered in 1941, or did not want to carry them out, was releived from this assignment in Russia very quickly. He confirms here with the statements of the witness Hurting, who made these statements on the witness stand, and who was also with the Einsatzgrup C in Kiev. As the last document I offer on page 277 Document Number 96, as Exhibit Number 95. This is an affidavit of Ernst Helmuth Wuppermann from Nuernberg from 12 January 1948. This affiant states that in the summer of 1941 he was on the station in Orel in Russia and that there he saw a box car full with, envelopes of which I will submit three examples as photostates.
I point to envelope number 1 in which there is a picture of a smiper in civilian clothes and which is signed in Russian "Glory to the Partisans". The witness says that a Russian employee in Orel had told him that these envelopes were distributed immediately after the outbreak of the war by the Russian government so that one mast assume that these were already made up before the beginning of the war. The original envelopes are here but I can not submit them unfortunately, because I must return them. However I have photostats and the translation is also certified to.
MR. HOCHWALD: If the Tribunal please. I object against this document just out of the simple reason that it is entirely immaterial. I also am unable to sec from the photostat whether the persons depicted on these envelopes are civilians or military personnel. That is not the nature of the objection. The nature of the objection is immateriality.
DR. DURCHHOLZ: This concludes my presentation of Doc. Book IV and on the day which will be determined by the Tribunal next week I shall submit one single document. This is an affidavit of the defendant Schulz as a reply to a rebuttal document.
THE PRESIDENT: Mr. Hochwald, do you have any further objections to the book?
MR. HOCHWALD: I have voiced my objections against the single documents. I do not think it necessary that I repeat it. Thank you very much.
THE PRESIDENT: You are welcome. Are any other document books ready for presentation this afternoon? Apparently not.
MR. HOCHWALD: I have received Document book Number 3 for the defendant Haensch. Is Dr. Riediger willing to put it in?
DR. RIEDIGER: The document book has been submitted yesterday.
MR. HOCHWALD: I beg the Tribunal pardon. I was not here yesterday afternoon and I did not know it was already submitted.
THE PRESIDENT: Very well.
MR. HOCHWALD: If the Tribunal please, I do not know whether there was an objection on the part of the prosecution against Documents 27 and 28 of the document book. I only want to inform the Tribunal that these are two letters written in October and in December 1947 addressed to Dr. Riediger. Therefore in their form they are entirely inadmissible.
DR. RIEDIGER: As far as these letters are concerned there is one message of Dr. Maennle, this witness who comes up again and again.
MR. HOCHWALD: I have seen the information of Dr. Maennle and have not objected against it as the Tribunal wants to hear the witness anyway. So I do think that his testimony will be decisive, but not the letter he wrote. But these are two letters from a certain Vibeke Jansen, and I do think that I am well entitled to object against the form. They are not sworn to and they are in no way in the form of an affidavit.
DR. RIEDIGER: In the case of this document just objected to, that is a statement of a witness who lives in Denmark and who has considerable difficulties if she choses any other form. Therefore I asked her for this. She wanted to go to an attorney in Denmark but I have received no more news. She merely informed me that she would have to count on difficulties on the part of Danish authorities. The probative value of this statement, of course, has to be left up to the Tribunal.
MR. HOCHWALD: If the Tribunal please, I do think that an affidavit is nothing else but a substitute for direct testimony. Testimony not given under oath can not be viewed by the Tribunal in any form. Its probative value is nil Therefore I move that these two documents may not be admitted in evidence.
THE PRESIDENT: That might be true if there is no explanation forthcoming as to wiry the oath could not be administered. As defense counsel has stated, the probative value is always left to the Tribunal.
MR. HOCHWALD: If the Tribunal please, I do not want to press the subject but the witness does not even say that in lieu of an oath she is stating that or that. she just writes a letter. she did not say this is the truth.
THE PRESIDENT: Did the letter come through the mail and does the counsel recognize the handwriting?
DR. RIEDIGER: Well, first of all I would have to look at the document again. It came by mail but whether I can recognize the handwriting would depend on whether I have any other pieces of writing by her, because I personally don't know the witness. But it is possible that other examples of her handwriting are available and I would reserve the right to make another statement about it. Pardon me, your Honor, at the moment I don't have the document here, but the possibility exists that the signature is certified to. We would have to look at the document.
MR. HOCHWALD: As far as I can see one of the signatures is certified to.
THE PRESIDENT: By whom?
MR. HOCHWALD: That, your Honor, I am unable to say. Folkeregister should be some magistrate, but I unfortunately do not know. It's Danish and I can't say either the one or the other. My objection is, your Honor, mainly to the fact that the witness never says at any place that this what she is writing is the truth -- neither under oath or in lieu of oath. I am absolutely sure that Dr. Riediger obtained the letter. I have no reason to doubt that the person who is signing this letter is this Vibeke Jansen, but I do not know who she is or what she is.
THE PRESIDENT: Dr. Riediger --
MR. HOCHWALD: It's an entirely inadmissable document.
THE PRESIDENT: You of course have observed the liberality with which we have accepted evidence, but you will also understand then there must be some safeguards in order to prevent being deceived, and there is always the possibility that someone can just write a letter and state anything. So unless we have some assurance that the statements are guarded and represent the truth, then we could all be deceived.
DR. RIEDIGER: Your Honor, after I received this statement I asked for this statement once more in the form of an affidavit. Thereupon the affiant notified me that she first wanted to go to see a lawyer, that she had misgivings that she might run into difficulties from Danish authorities and since that time I haven't heard from the witness. Of course I must admit that the Tribunal has been very liberal in accepting documents, but I believed, at least, that this letter, whose signature is certified to -
THE PRESIDENT: Mr. Hochwald, may we see the document. I don't happen to have my book here.
MR. HOCHWALD: If your Honors please I have only the mimeographed translation.
THE PRESIDENT: Do you have the letter in which said that she was unable to go to the Danish authorities?
DR. RIEDIGER: I got one more letter -- I don't know if that has been handed in.
THE PRESIDENT: But Mr. Hochwald, what about the relevancy of the subject matter?
MR. HOCHWALD: I consider the subject matter completely irrelevant, Your Honor. However, I have to make this objection and I do think I pointed it out, out of principle. We cannot leave a letter written in November or December 1947 go in lieu of testimony of a defense witness. I beg the Tribunal to consider this point.
THE PRESIDENT: Dr. Riediger, even if this document were submitted with all the safeguards under oath, what do you content it would serve on behalf of Haensch. Here is the only statement which can be of any value to you. Let's see how far it goes: "It is also not clear to me why Dr. "H" should be convicted there since he was an official here during the war."
MR. HOCHWALD: If the Tribunal please, this statement alone proves the inadmissibility of the letters as it is admitted by the defendant that he was not only In Denmark but also in the East.
THE PRESIDENT: I don't understand that.
MR. HOCHWALD: He was not only in Denmark but also in the East.
THE PRESIDENT: I don't quite follow you?
MR. HOCHWALD: I understand in this letter he is trying to say he was all the time during the war in Denmark, as he was an official here. The Tribunal certainly will recall the defendant himself admitted having been in Russia.
DR. RIEDIGER: The contents of the document, of course, do not refer to the assignment of Haensch in Russia, but they only refer to activity in Denmark, therefore, has nothing to do with the charges against Haensch as they refer to Russia, but it serves to judge the defendant, and therefore, it can have some importance.
THE PRESIDENT: Well, I think you are arguing for the admission of something which even if admitted can not be of much enlightenment in the disposition of this case, for an unknown person in Denmark to say that he or she does not know why a defendant should be convicted because he was an official there during the war, which means absolutely nothing, all these defendants were officials in Russia, or that is to say, they were on official duty, so that does not prove anything at all, and I think that to insist on admission into evidence of a document which does not have the usual safeguard as to veracity, when the document, even if it did have that safeguard could be of very little use to you, is much ado about nothing.
DR. RIEDIGER: Well, of course, I must leave the decision up to the Tribunal, especially since the probative value itself could not be such as that of a usual affidavit.
THE PRESIDENT: Yes, the point is, Dr. Riediger, that we are willing to make an exception against a very obvious rule when it really will mean something for us to make an exception against a rule, which is only made to protect everybody from something in the last analysis, is of no use as we are asking for a pointless thing.
MR. HOCHWALD: If the Tribunal please, I only want to point out I have objected for the same reason against two documents, the document which the Tribunal has before it, and there is a document preceding this document from the same writer, and I have objected to both documents for the same reason.
DR. RIEDIGER: At the moment, I unfortunately don't have the document before me.
THE PRESIDENT: You mean this very long statement (Looking at document before the court).
MR. HOCHWALD: It is from the same writer in the form of an ordinary letter.
DR. RIEDIGER: Your Honor, may I perhaps reserve my explanation for a day when the Tribunal will reconvene, and I shall see whether I withdraw the document.
THE PRESIDENT: Very well. In the meantime if you will find that you can fortify this statement in any way with a jurat, with a statement as to who this is this Abenrade, and so on, then it might be helpful in the final disposition of the document, but for the moment both documents will be excluded.
You are very welcome to be sure.
DR. GICK: Dr. Gick for the defendant Straugh. Your Honor, before the Tribunal adjourns, I would like to repeat my motion for severance, which has been made in writing on 23 October 1947. I refer to document of 11 October 1947, also handed to the Tribunal, the opinion, of Dr. von Baier to my brief 3 January 1948, and to the second opinion of Dr. von Baier of 7 January 1943, and to my brief of 20 January 1948 which unfortunately has not yet been submitted to the Tribunal, as it is still in the translation section, and which at best can be handed to the Tribunal tomorrow. In order not to take up the time of the Tribunal, I don't want to make any more statements here. I merely want to say in one sentence to the fact that after the conclusion of the direct examination, the impression the defendant Strauch made, was such that it can not be said that he was in a position to use his personality and the use of his intellect which is normally at his disposal, and to use them to refute charges of the Prosecution. I am of the opinion that the defense of the defendant Strauch was impeded in a considerable manner, therefore, I want to repeat this motion here in court.
MR. HOCHWALD: If the Tribunal please, the Prosecution does not desire at this time to make a formal announcement to this effect, but the Tribunal is advised that the Prosecution is opposed to the motion on the part of the defense for s everance of the case of the defendant Strauch.
THE PRESIDENT: In order that the defense counsel may know just what is still required of him in this trial, a decision would be made immediately, as to whether the motion for severance should be granted. On December 11, 1947, a Board composed of three physicians examined the defendant, Eduard Strauch, and submitting findings, paragraph five of which reads. "It is the opinion of the Board that the defendant is at most times physically and mentally able to understand questions put to him and to reply thereto with the full use of his mental faculties."