A natural tendency to human kindness and justice often betrayed itself in his nature. For that reason he was always open to what is called "Argumentum ad hominem." testimony but by his own attitude and by his own impression he had discussed it with a former clergyman, a man called Roehl in Reval, who at that time also had been able to dance behind the scenes in Esthonia and he agrees with Mothander's attitude about Sandberger.
I submit from Document Book Sandberger I-A, Document No. 33, which I offer and submit as Exhibit No. 31, the affidavit of one Dr. Bruno Peter von Kleist who lives in Reinbek, who confirms that Sandberger with all the means at his disposal took part in the attempt to compel the Reich Government to carry out a certain autonomy in Esthonia. From a number of remarks in Esthonian circles, Dr. von Kleist found out that the Esthonians often sought Sandberger's protection when German agencies became rambunctious.
I offer as my next document, Sandberger Exhibit No. 32, Document No. 28, the affidavit of one Heinrich Bernhard, who from 1935 to 1938 was the Chief of the Main Department for Foreign Countries in the SD sector in Stuttgart and from 1939 to 1945 was Departmental Chief in office VI in the RSHA, the Reich Security Main Office, who confirms the statements of Dr. Scheel, Eiseler, and Sandberger concerning the involuntariness of cooperation with the SD during the war.
office of the RSHA between 1944 and 1945. The Affidavit of Erich Olbrueck who lives in Schmilling near Arolsen. Document No. 29 I offer which is Sandberger's Exhibit No. 33. Olbrueck gives the personnel and political policies which Sandberger practiced. Furthermore, he reports that in May 1945 Sandberger reported voluntarily to the US Army. The next three affidavits concern the activity in Office VI the RSHA in 1944 and 1945. I offer from Document Book I-A Document No. 30, affidavit of one Dr. Gisel her Wirsing, which is offered as Exhibit No. 34, concerning the activity of Office VI of the Reich Security Main Office. Then there is document No. 35, affidavit of one Dr, Paeffgen , who between '43 and '45 was active as the Security Chief in Office VI for England and America. I offer it as Exhibit No. 35. This affidavit also refers to activity of Office VI of the RSHA. Next I offer Document No. 31 as the affidavit of former chief of Office VI in the RSHA, one Walter Schellenberg. I offer it as Document Exhibit No.36. Schellenberg among other things reports that in the course of his activity, especially in the activity in Estonia, Sandberger got in disgrace with a number of his superiors, and "I remember very well that Sandberger was criticized very unfavorably in Office LV, especially by its Office Chief Lueller", and they made a number of derogatory remarks about him. Schellenberg furthermore reports that suggestions were made to transfer Sandberger and to promote him and that they were refused by Heydrich and by Kaltenbrunner on two occasions. He comments on Prosecution Document 5045, which is Exhibit 182 of the Prosecution, which come up during the cross examination of Sandberger and he reports, and I quote: "He had confidential discussions with him, the affiant, which were conducted with great candor, and he made remarks saying that he was very worried about the policy of the German Government, which he considered wrong. He objects to all strict political measures, against measures which were opposed to the church end measures against the Jews. Next I submit Document No. 3 affidavit of Heinz 'Wanninger, 2 January 1948, which I offer as Exhibit No. 37.
Wanninger was in 1944 and 1945 Chief of the personnel department of the RSHA. The Prosecution Document 3045, Exhibit No. 182, bears his name. He comments on how it was possible that data concerning personnel matte rs were inaccurate in documents of the RSHA. Furthermore, he confirms statements which also are in the affidavit by Rudolf Hotzel. He says that the secrecy among the various offices was very strict, and as a member of Office I I didn't know about any activities of other offices in the RSHA, and especially no sofar as Office IV was concerned.
Now I come to Document Book No. II. In order to bring proof of the inaccuracies in Document 5045, particularly the dates, I now submit and offer as Sandberger's No. 38, a certified copy of the birth certificate of the wife of the defendant Sandberger, Mrs. Eva Sandberger nee Kirschstein, which is in Sandberger's Document Book II, Doc. No. 11, page 61. The comparison between this date and the date of Exhibit No. 182, shows that the date in Exh. 182 is wrong. As my next document I offer and I submit Exhibit No. 39, Document No. 5 on page 50. It is an excerpt from the Prosecution's Document No. 1180, Exhibit No. 34, of Prosecution Volume II-A, that pert of the document which has not been submitted by the Prosecution. This document mentioned the members of a leading central committee, especially, those leading Communist Functionaries who in the Summer of 1941 had remained in Estonia on Soviet Orders in order to direct political, underground organization, for the purpose of carrying out espionage acts, sabotage acts, and other illegal activities Sandberger referred to this list when he was on the witness stand, when he was asked by the Prosectuion who in particular were these people, these people, these leading Communist Functionaries who were named in the report 55 of Prosecution's Document NO 3272. Prosecution Document NO 3279, Prosecution Vol. 1; from the list which I submit in connection with the statement that Sandberger made, it becomes evident that these chief functionaries were not condemned to death because they were Communist Functionaries, but because they were carrying on sabotage and espionage acts and building up an organization.
As my next document I submit Sandberger's Document No. 40, it is document No. 9-C, an excerpt from an article of the Canadian Professor Watson Kirkconell, who wrote this in an English magazine, the "Baltic Review", published in Stockholm. The excerpt which I submit contains a list of groups of people who during the time of the occupation of the Baltic State in 1940 and 1941 were to be liquidated by the NKWD. This list is published by Lithuanian-American circles in New York, and that the author is in possession of a copy of this document.
MR. HOCHWALD: The prosecution objects to this document, the excerpt of a newspaper is no evidence , moreover, it is immaterial and has no value in the case.
DR. VON STEIN: The reason why I submit this document is to support the testimony of the witness Dr. Mac. This objection was also raised when that witness was on the witness stand, but the Tribunal was kind enough to admit the question, and in order to support this statement I submit this excerpt which states that the original of this list is in New York.
MR. HOCHWALD: This does not change anything in the nature of the document, Your Honor. The document is not a captured document, it is not an affidavit, end it is inadmissible in its form.
DR. V ON STEIN: I submit this document mainly in order to bring an illustration from another party. I had relied only on the testimony of the witness Dr. Mae as well as Sandberger, and in order to support this testimony I would like to submit an article which comes from abroad and which confirms the same fact.
MR. HOCHWALD: It would be perfectly correct, if Dr. von Stein would have received an affidavit from the writer of the article offered, that would be corroborative evidence for sure. It would be another question where the evidence on this would be material, but all arguments do not change one fact. An article in a newspaper which is not a captured document, which was not written before 1945, cannot serve as evidence before the Tribunal.
THE PRESIDENT: I am afraid, Dr. Stein, that would be stretching the rule of liberality a little bit too far, after all, it is merely a comment by some one not involved in the trial.
DR. VON STEIN: Your Honor, I am not in a position to support this evidence by other documents. I only have the opportunity of pointing out documents which originated abroad , and the Tribunal can of course assign any probative value it wishes , but it is not that I only have to submit official documents but I can also submit anything of any probative value, and I think that the views of the foreign press, especially something which appeared in N.Y., might have a certain probative value.
MR. HOCHWALD: If argument of defense counsel would be correct, then it would be easy to decide the case by submitting some articles which are referring to the guilt or innocence of these defendants, if the article appeared in a New York newspaper or in a Washington newspaper, during the time of the trial; the Tribunal would certainly not accept such evidence which in essence is absolutely the same thing. We have never tried, and we would not try to put in evidence --
DR. VON STEIN: May I point out again, Your Honor, from this Baltic Review, the source from which the original was obtained is listed. Probably that will suffice, as it is not just an article which I offer, but I submit the source which is contained in the document itself.
MR. HOCHWALD: If Dr. von Stein would have put in the original in its form, possibly the exhibit would have been correct, I am not sure as to its contents , but only by giving the source of the article in the newspaper, the Prosecution has no possibilityto check these sources, and would place too much of a burden on the Prosecution to prove the incorrectness of the article.
THE PRESIDENT: Dr. von Stein , don't you see that this type of evidence is like a double-edged sword. If you would be allowed to introduce a newspaper article which could be interpreted favorably to the defense, the Prosecution then could introduce many newspaper articles to the contrary.
Then you have evidence here which is not under the control of the Tribunal. The evidence which comes into the Tribunal must have all the safeguards which go with the ascertainment of truth, examination, cross examination, ascertainment of source of material which you could not hove in the mere submission of a newspaper article which could be written by some prejudiced, or some one not in possession of all the facts. It would be a different thing if the question was, did a newspaper article appear or not and that became the issue, but that is not the issue here. Some newspaper man may express a thought, a view and certainly we can not charge the defendants with that thought or view expressed by some one who is not in the courtroom.
DR. VON STEIN: Your Honor, the document contains the source of this statement and is at the disposal of the Prosecution at any time.
MR. HOCHWALD: It is not the burden of the Prosecution but I would like to make it very clear to get the evidence which the defense wants to put in. If Dr. von Stein wants to prove something, he has to put in the exhibit, not the Prosecution can be charged in finding the book in which this evidence alledgedly is to be found.
THE PRESIDENT: We think, Dr. von Stein, in order to preserve the absolute impartiality of the deliberations, that a newspaper article may not be accepted, so the objection of the Prosecution is sustained. I would like to have you make a note, Mr. Hochwald, that one time you were sustained.
MR. HOCHWALD: Thank you very much.
DR. VON STEIN: May I proceed?
THE PRESIDENT: Please do.
DR. VON STEIN: Concerning the question of the Communists in Estonia, I submit No. 41, Sandberger's Document No. 1, in Document Book No. 11, an excerpt from operation events of the RSHA, namely such excerpts from prosecution documents whichwere not submitted by the Prosecution in their document books. Also I submit excerpts, copies from the so-called reports from the Eastern Occupied Countries, which were published by the RSHA, 1942 and '43, in connection with the operation reports which I had mentioned before.
These are in photostatic form in the office of the Prosecution. I would like to thank the Prosecution for permitting me to look through all these reports, and to copy excerpts from the indexes and contents of these books. As Sandberger's Exhibit 42, I submit Document No. 2 in Sandberger's Document Book No. 13. This contains certified excerpts from the Eastern reports submitted by the Prosecution. As Exhibit No. 43, Sandberger's No. 3, page 12-A, excerpt from operation report of 7 November 1941, No. 130. This excerpt describes the methods of the Bolshevist Agents in the area of the Army Group North. Especially the fact that women and juvenile children over fourteen were used by the Russians as agents. Referring to these report of events and reports from Eastern Occupied Territories I may point out the following: The excerpts from the reports of events No. 29 and No. 166, concern the measures of the Soviet in Estonia in the years of 1941 and 1942, and the measures to deport anti-Soviet elements from the Baltic to Siberia. It also concerns the fact that the Soviets in 1941 and '42, deported 60,911 people.
MR. HOCHWALD: If the Tribunal please, I do think it is clear from the presentation by Dr. von Stein, that this document has no value in the case. We object therefore, to the presentation of this document.
THE PRESIDENT: It may not be precisely relevant but we will admit it for whatever probative value it will have, shedding some light on the possible interpretation by the defendants on the historical situation, if it existed.
DR. VON STEIN: The excerpt from report of events, No. 51, concerns itself with the Soviet destruction battalions and excerpt 53 has to do with Communist Partisan activity in Estonia. The reports of events No. 163 and 171, 176, 178, 180 and 191, and the reports from the Occupied Eastern Territories, Nos. 3,30 and 50, report of this extensive activity of parachutists in Estonia. As for SK I-A, Special Commando 1-A, which Sandberger commanded in Leningrad, Sandberger said that this Commando dealt mainly with G-2 tasks. In this connection I picked out the above-mentioned excerpts from the reports of events, and also one excerpt from report of events 116. This states that the main task of the subcommando of Einsatzgruppe A before Leningrad was the military and political information service, and the intelligence service methods are explained. In accordance with this I may draw attention to pages 1 and 3 of a Situational Report, in which it is said that Pleskau in June 1941 had been the garrison of SK 1-B but not of SK 1-A. These are the excerpts submitted by me from reports of events No. 24 and No. 34. It becomes evident from this that the passage contained in the Document 3401 concerning Pleskau, that is in Document Book 2-A, on page 110 of the English Document Book, is objectively wrong. I may refer here to the statement of Sandberger when he was on the witness stand. I now submit documents concerning the general testimony which was made by Dr. Mae, former chief of the Estonian Administration in connection with the conditions which Sandberger found when he arrived in 1941 in Estonia, and also concerning the attitude of the Soviets which led to these conditions. I submit document No. 9-b, page 55, as Exhibit No. 44. That is an excerpt from a newspaper article of the American Citizen, Julius Epstein, entitled "Broken City."
MR. HOCHWALD: The objection is the same as the one on which I was sustained.
THE PRESIDENT: The ruling is the same as the one on which you were sustained.
DR. VON STEIN: I was just about to give the exact source for this document.
THE PRESIDENT: Well, it is from a newspaper article?
DR. VON STEIN: It was published in 1946 in a report, Appendix, of Washington, January 1946.
THE PRESIDENT: Dr. von Stein, it must be apparent to you that we can not accept evidence of that kind. It is no reflection on the newspaper, or the writer of the article, but it is the general principle which is involved, that if you open the door to newspapers, then you will be trying the case on hearsay evidence.
DR. VON STEIN: Your Honor, but the source is given in the newspaper article.
THE PRESIDENT: Don't you see, Dr. von Stein, the person who writes the article is not under oath, he may be mistaken in his source of information, there is no chance for cross examination. I don't think you need to argue that point. We just can not accept them.
DR. VON STEIN: I now offer Document Sandberger 9-E and 9-F in the Document Book on pages 58 and 59, as Exhibits 45 and 46. Then I submit Sandberger Document No. 9-A as Exhibit No. 47, an excerpt from an article by the Estonian Protestant Bishop -
THE PRESIDENT: What is the date of that article?
DR. VON STEIN: The date?
THE PRESIDENT: Yes.
DR. VON STEIN: 1946.
THE PRESIDENT: You see, Dr. von Stein, if this newspaper article had been published during the time that Sandberger was there, then it could be evidence of the fact that the newspaper was published, and it stated certain things, but here is a newspaper which came out after the events, which are the subject of this trial, ended.
DR. VON STEIN: Yes, but the newspaper article concerns itself with events of 1940 and '41 in Estonia.
THE PRESIDENT: Yes, then you should have here the man who actually knows of these events.
DR. VON STEIN: As Exhibit Sandberger's No. 49 I submit and offer an excerpt from the Journal Official de la Republique 19 July 1946. This is an excerpt from a speech by -
THE PRESIDENT: It is the same thing.
DR. VON STEIN: I may point out, Your Honor, that this Exhibit No. 49 from the Journal Official de la Republique Francaise is a photo-copy of the original.
MR. HOCHWALD: It is not the original article.
THE PRESIDENT: A photostat of what?
DR. VON STEIN: Photostat of the Journal Official de la Republique Francaise, and has been certified by a notary public.
THE PRESIDENT: What is the date of the newspaper article?
MR. HOCHWALD: The date of the newspaper is 19 July 1946, Your Honor.
THE PRESIDENT: Suppose you are submitting the newspaper here, it would be subject to the same type of objection. The fact that it is photostated does not magnify the article.
DR. VON STEIN: It is not a general newspaper, but the official organ of the French Republic, one could not compare this with a newspaper.
MR. HOCHWALD: Possibly Dr. von Stein can tell us whether it is an official decree of the French Republic, which of course would change it. If that would be a decree or a regulation or a decision before a French War Crime Court, that would, of course, change the validity of the thing, but if there is only a speech or a subjective opinion of an individual given, that would not be admissible.
DR. VON STEIN: May I take the liberty of pointing out that this is a government report of a Parliamentary session which I am submitting, this is an official document, and not just a newspaper article, as the prosecution seems to think.
MR. HOCHWALD: Will Dr. von Stein enlighten us whether this was a vote or a decision of the French Assembly, or whether it was a speech.
DR. VON STEIN: I will give a short resume of the contents.
THE PRESIDENT: Just answer his question. Answer Mr. Hochwald's question, please?
DR. VON STEIN: I, also, of course -
MR. HOCHWALD: The Prosecution is interested to know whether the item which Dr. von Stein wants to submit is a decision of the French Assembly, or whether it is a speech by somebody.
DR. VON STEIN: I must say, of course, that it is a speech, not a decision.
MR. HOCHWALD: We are not in a position to cross-examine the person who made those utterances. The document is inadmissible.
THE PRESIDENT: The objection is sustained.
DR. VON STEIN: In that case I am omitting a number of newspaper articles which I wonted to introduce from German newspapers. I now offer Sandberger's Exhibit 52, which is Document 10, excerpt from the Manual for General Staff Officers, 1 August 1939.
It is an excerpt concerning the responsibility of an Army commander in operational areas about security tasks, and now I submit as Exhibit No. 3 an affidavit of the assistant official Mensel on this document, and he certified that he found 7/8 of all reports coming from Estonia, 10/11, that these reports are purely reports concerning the domestic sphere, therefore, they are reports which were issued by Department III. There are a few additional documents which are contained in Document Book II-A. No. 12 which I offer as Exh. 54 is an expert opinion of Dr. Maurer concerning the applicability of Estonia Law concerning a state of emergency according to Estonian Law and Estonian justice. No. 13, which I offer as Exh. 55, is an excerpt from reports of events 181, which showed that Litsche is not in Estonia, but in the territory of Einsatzgruppe A, Loknia. I point out that document No. 15 belongs to it.
THE PRESIDENT: Dr. von Stein, you refer to Document Book 2-A. Document Book 2-A contains only documents 16 and 17.
DR. VON STEIN: There is another supplement to this book, Document Book 2-A contains document 12, 13, 14, 15, 16, 14 and 15 and then there is a small supplement, which has 16. and 17.
THE PRESIDENT: Well, we will receive it in order to finish up and then get the documents, of course.
DR. VON STEIN: Document No. 15, which is offered as Exh. 56, is a photostat of Army chart from which it becomes evident where the place Oladice is situated. This is at the lower left end of the chart, and there is also the Oladice.
No. 16 is Exhibit No. 57, an affidavit by Herbert Sandberger.
No. 17 is offered as Sandberger's Exhibit No. 58, an affidavit by one Buchner.
Buchner was a member of SK 1-A speaks especially about the events during the advance.
With to me thus far.
There is one question which I would like to ask, Mr. President.
It is highly probable that I shall be permitted to be able to submit these documents.
THE PRESIDENT: I would suggest that if you have being presented in open court.
If there is an objection then DR. VON STEIN: No, what I mean is, may I be permitted to submit this document after the final pleas?
THE PRESIDENT: Yes, you may submit it but not in open court; once the final pleas are terminated, naturally, we
DR. VON STEIN: No, what I mean is whether I can submit it to the tribunal if I just hand it directly to the court?
THE PRESIDENT: If it is a matter of a day or two, yes.
MR. HOCHWALD: Do I understand the Tribunal correctly, the form of a written motion?
THE PRESIDENT: Yes.
MR. HOCHWALD: Thank you very much.
THE PRESIDENT: Dr. Fritz, how many documents do you have to present?
DR. FRITZ: Four.
DR. BELZER: I have nine.
THE PRESIDENT: Do you mean number nine or "nein" meaning no?
DR. DURCHHOLZ: I just have one document.
DR. SCHWARZ: Twenty-seven documents for Strauch.
MR. HOCHWALD: I have only one for the Prosecution.
DR. DURCHHOLZ: For the defendant Braune, the defense counsel will submit one document this afternoon.
THE PRESIDENT: Dr. Aschenauer, I am sorry you will be delayed a little bit in the presentation of your summation, but just as soon as we finish the acceptance of the documents, you may begin, is that satisfactory?
DR. ASCHENAUER: All right, Your Honor.
THE PRESIDENT: The Tribunal will be in recess until two o'clock.
(Whereupon noon recess until 1400 hours, 3 Febr. 1948) (The Tribunal reconvened at 1400 hours, 3 February 1943)
THE MARSHAL: The Tribunal is again in session.
MR. WALTON: May it please the Tribunal, at this time the Prosecution offers in rebuttal Document NO-4638, which consists of two parts, the first being a cover-letter or a letter ordering distribution by General Ohlendorf of a monograph or a prepared lecture concerning some features of Nazi ideology. In view of the testimony of the defendant and in view of the testimony concerning the legality of the SD and the SS, the Prosecution desires to introduce Document NO-4638 into evidence as Prosecution's Exhibit 252.
DR. ASCHENAUER: (Attorney for the Defendant Ohlendorf) Your Honor, I object to the submission of this document.
May I point out that the reason given on the 21 January, according to the record, page 5,499 by Mr. Walton was a different one. I quote: "Mr. Walton said: 'It is a long manuscript about the lecture, which Ohlendorf prepared, about the superiority of the National Socialist form of government over the existing form of government.'" I explained to Mr. Walton that this document does not contain any contributions or any speech by Herr Ohlendorf. There is not a line in this document about subjects concerning questions of domestic sphere or concerning the independence or jurisdiction of the judges, that originated from Herr Ohlendorf. That is why, because he is informed about this, Mr. Walton wrote a lengthy argumentation about the legality of the SS and the SD. May I point out that this document, first of all, does not contain a speech by the defendant Ohlendorf; secondly, it does not contain anything on the subject of a superior state legislation, as Mr. Walton said on the 21st January; but these are legal question; thirdly, that the coordination of a speech here does not give information about opinions of the defendant Ohlendorf nor of his office or any other office with whom he had dealings.
I refer to the following sentences on the first page of this document. It says: These contributions in no case contain a conclusive opinion by Office III or the Reich Security Main Office concerning the problems treated therein, but merely are to contribute towards the clarification of the matter among us.
In the second paragraph we find the following quotation: "The existing first contributions of 27th July 1942 is the basis of this; before the recent changes in the manner in which legal administration exists in Germany was concluded recently - "
THE PRESIDENT: Where are you reading from, Dr. Aschenauer? Where are you reading? I don't find this in the exhibit.
DR. ASCHENAUER: I am reading from the first page of the document. It starts Reich Security Main Office III, Berlin SW, 11 October 1942.
MR. WALTON: He is referring to the cover-letter.
THE PRESIDENT: Oh, I see; very well.
DR. ASCHENAUER: This cover-letter proves that this is not an authenic opinion of Office III, but Office III wrote down a lecture which somebody had held concerning the subject of law, during the time when certain SS circles wanted to get rid of the German system of justice, and they wanted this as a basis of a discussion.
THE PRESIDENT: Dr. Aschenauer, the document can have no more value than what is contained in it, and if it states, as you have pointed out to us it states, that this contribution does not contain a definite attitude of Office III, Mr. Walton nor anyone else can draw from it that it does represent the definite attitude of Office III, so I don't think that Mr. Walton would want to say that this document is something different from what it says within its own context; so, I don't understand the reason for the discussion along that line.
DR. ASCEENAUER: Your Honor, I agree, if the document is accepted for the probative value it has after I have had the possibility to explain the matter to the Tribunal. I now have a further question. Will it be sufficient if I say that this contribution does not originate from Ohlendorf at any point, or shall I in truit an affidavit which is already made out to the Tribunal by Ohlendorf on this point?
THE PRESIDENT: The document itself very clearly states that it is circulated solely to foster discussion and enlightenment. It doesn't on its face purport to represent, at least on this page, the definitive conclusion of the defendant Ohlendorf.
MR. WALTON: May I make a few remarks there, your Honor? It is in the nature of testimony but I might explain that the prosecution, particularly those of us who speak no German, have to rely on what is called a staff evidence analysis which is a digest of these documents. On the basis of this staff evidence analysis which was prepared in Berlin I made my remarks before the document was translated that Dr. Aschenauer referred to, I believe, on the 21st, the record of the 21st, but that is not controlling. The claims which I make for a document in my opinion are those remarks which are made at the time that the document is introduced. Now in this document from the cover letter this material was distributed throughout the SD organization. It is an act of the defendant Ohlendorf, not the speech itself but the distribution of it, and for that reason it is introduced here as pertinent rebuttal evidence.
THE PRESIDENT: That is entirely proper. The only observation that the Tribunal was making is that the document can rise no higher than its content.
MR. WALTON: We make no claim for that, your Honor. I merely wanted to explain the difference between my quoted remarks of the 21st and of today.
THE PRESIDENT: Yes.
MR. WALTON: I admit my staff evidence analysis was much more encouraging for the prosecution than the document itself revealed when it was translated.
Therefore I had to change my remarks when I introduced it.
THE PRESIDENT: Yes. Well, I think that clarifies it, doesn't it, Dr. Aschenauer?
DR. ASCHENAUER: Yes, thank you, that clarifies it.
THE PRESIDENT: We may now proceed with the rest of the documents.
MR. WALTON: One matter, sir.
THE PRESIDENT: Yes, all right.
DR. HELM: Dr. Helm for Ruehl.
Your Honor, this morning, as exhibits Nos. 28 and 29 two affidavit documents Nos. 28 and 29 were introduced for the defendant Ruehl. They are contained in the document book on Pages 71 and 76. They were accepted but after the prosecution raised an objection and with the reservation of the right of cross-examination of the witnesses Kaufmann and Hansen and the witness Barth by the prosecution. Dr. Durchholz could not know that those two documents were only received tentatively and according to the result of the case in chief of the defense they are not important. I therefore withdraw these two exhibit numbers. With this I relieve the Tribunal of the burden of waving to have cross-examination of witnesses at this stage of the trial. I also want to say that I waive the right to cross-examine the witness of the prosecution Bash. Mr. Walton was kind enough to say that he would make a counter statement here.
THE PRESIDENT: Well, in view of the fact if the affidavits are withdrawn then certainly there is no necessity for the presentation of witnesses.
MR. WALTON: Just to clear the record, your Honor, at this time the prosecution withdraws its request to have the two witnesses, who are affiants in the two named affidavits, Ruehl 28 and Ruehl 29, brought to Nurnberg for cross-examination. However, I think it is thoroughly understood between Dr. Helm and myself that the rebuttal document, which is the short affidavit of the affiant Robert Barth, is still in evidence.
THE PRESIDENT: Very well.
DR. VOGEL: Dr. Vogel for von Radetzky.
Your Honor. I take the liberty of introducing two small document books. Nos. III and IV for the defendant von Radetzky. First of all I want to introduce Document Book No. III. It only contains four documents which are to have the same exhibit numbers as document numbers. As Exhibit No. 30 I offer the document von Radetzky No. 32.
MR. HORLICK-HOCHWALD: If your Honors please, we object to this document. This is an affidavit of a witness who has appeared before the Tribunal. The witness Hartl was cross-examined by Dr. Ratz at great length. He testifies in this affidavit, as I can see, to a document which was handed to Radetzky on the 17th of December '47. The affidavit itself is dated 6 January 1948. On the 12 January 1948 Dr. Ratz made a request to the Tribunal in open court as to a rehearing of the witness, and I am quoting from the transcript. Page 4885, the morning session of 12 December. The Tribunal granted this request. At that late stage of the trial we are practically not in the position to cross-examine the witness. I only want to point out that the witness Hartl has been all the time in the jail here in the Palace of Justice. When Dr. Ratz made his statement and requested rehearing of the witness on the 12th of January he was informed about the fact that Hartl had signed an affidavit for his client on the 6th of January. If he would have informed the Tribunal and prosecution at that time that he intends to introduce an affidavit the prosecution would have certainly immediately moved that Hartl may come back into the courtroom and may be heard so that prosecution can cross-examine him on this particular subject. This was practically frustrated by the presentation of the affidavit at such a late date. I, thefore, respectfully move that the affidavit might be not admitted in evidence. Moreover, I want to say that Dr. Ratz has cross-examined the witness Hartl at great length when he appeared before the Tribunal.
The question was not new. It is true that the document was then not submitted in evidence. However, we have in the opening statement already and in the direct presentation of our case made it completely clear that it is the position of the prosecution that Radetzky at certain times was independent leader of Subkommando 4a. Therefore, the submission of the affidavit should be denied. The witness was excused by the Tribunal.
THE PRESIDENT: Was Hartl questioned on this matter at all when he was on the stand by either side?
MR. HORLICK-HOCHWALD: I am sure, your Honor, that I did not question him on this particular....
THE PRESIDENT: Did counsel for von Radetzky question the witness on this matter?
MR. HORLICK-HOCHWALD: I am very sorry but off-hand I am unable to make a statement to that effect. I cannot say it. I do not think so.
DR. VOGEL: Your Honor, at the time I myself went down to the prosecution and talked to Mr. Hochwald and told him that the point which was debated again on 17 December, we would have to hear the witness Hartl again. The Tribunal here admitted this expressly, and I told Mr. Hochwald that we would make another affidavit by Hartl in order to clarify this point in this simple manner. with the other documents, then during the questioning on 24th November Hartl could have been asked about this already by-
THE PRESIDENT: Let's try to save a little bit of time now. The situation remains that we have before us an affidavit which is submitted to clarify a document which was introduced after Hartl was on the stand. Strictly speaking, perhaps the affidavit should not be received. However, if defense counsel insists upon its being received then the prosecution will have the right to insist upon cross-examination of that witness. We presume that it wouldn't take too much time to crossexamine on this one point alone. It will only be a matter of a few minutes so that now we say to defense counsel that if you insist upon introducing the affidavit we will accept it and allow the prosecution to call Hartl for cross-examination.