DR. GAWLICK: Your Honor, I object to this question. First of all the question is so long I must say I didn't even understand it myself and there is great danger the witness may give an answer that may be wrongly understood because of the translation. First of all, I ask about a definite rule about hypothetical questions. According to German procedure hypothetical questions are inadmissable and I would like to refer myself here to rulings in criminal procedure - even in American criminal procedure hypothetical questions are inadmissable. What the witness should testify is what he did, what he said, what he saw, and only facts but he cannot imagine himself what he would have done if a, b, c, d, e, or f had happened. This is impossiple for one to demand of the witness and, therefore, I ask of the Tribunal that the Tribunal make a basic ruling about hypothetical questions.
THE PRESIDENT: Gawlik, have you ever read any standard work on evidence as presented in Anglo-American Criminal procedure?
DR. GAWLIK: Yes, "Wharton's Evidence in Criminal Cases".
THE PRESIDENT: Now, can you point out to the Tribunal any section in "Warton's Criminal Evidence" which states that hypothetical questions are not permitted?
DR. GAWLIK: Yes, I could do this if the book is put at my disposal.
THE PRESIDENT: All right, where did you see this book?
DR. GAWLIK: The book is here in the library but it is difficult for me to get hold of it, when I go to the library on Saturday and Sunday maybe.
THE PRESIDENT: All right, Mr. Walton will have that book available for you to persue during the recess, and when we reconvene I want you to read to the Tribunal the section you refer to where it says that hypothetical questions are not permitted.
( A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Professor Gawlik, are you ready now to give us the law?
DR. GAWLIK: I am sorry, Your Honor, there are three fat volumes, and I shall have to look at these fat volumes first. At the moment I have no objection to the actual questions until I find it. I only would like the last question to be put so that it is understandable to me; otherwise, I don't want to hold up proceedings for the time being.
THE PRESIDENT: Rephrase the question, Mr. Walton, and put it very briefly.
CROSS EXAMINATION (Continued) BY MR. WALTON:
Q. Colonel, if a commando leader felt that his members of an execution squad were no longer of any furhter use to him and he wished to have them replaced, would he informally discuss his replacements with you on one of your inspection trips?
A. That is quite possible, Mr. Prosecutor, that the commando leader would have informed me about it and would have talked to me about it. Yes, that is possible.
Q. And you would have discussed the matter with him, is that correct?
A. I certainly would have talked to him.
Q. And you would have given him that advice as to how to proceed?
A. If personally I had been in the position to do so and to give him some comradely advice I would have done so.
Q. Would you have also discussed the tactical situation, confronting the commando leader with him while you made a visit to his commando headquarters?
A. You mean the tactical situation, the military tactical situation, is that what you mean --Yes, we talked about it.
Q. Well, would the security tactical situation also be discussed?
A. It obviously happened when I talked to commando leaders that, of course, they informed me about the situation.
Q. Did you give them advice and counsel toward the solution of their immediate problems?
A. He did not expect me to do so because he was certain that such advice concerning security I could not tell him more than he knew himself because I wasn't an expert as far as that goes.
Q Who was the acting Commander when Ohlendorf was away?
A What absence are you referring to, Mr. Prosecutor? Commander? mentioned before, which sometimes lasted a week -- there was no deputy for him. When he was absent for a longer time, like the absence which was mentioned, he, as I have said, appointed as his deputy for their areas the respective commando-leaders. which is page 737, and which is in the English transcript of the Record at page 727. This is the cross examination of General Ohlendorf, and I ask you to look at the portion which is marked, and the question that was asked General Ohlendorf: "Who was the acting Commander of your group while you were away?" Do you see that?
A Yes, in the German transcript it says, "Who was during your absence your deputy in the Einsatzgruppe?" Yes,
Q All right, what was the answer?
A "The deputy in the staff of my group was the co-defendant Seibert." words? he was gone,does it not? statement unless it was true?
A I beg your pardon -- I didn't understand that question.
Q That is a true statement, is it not?
A The statement that during Ohlendorf's absence I was his deputy on the staff is correct, yes.
Q Isn't it a fact that due to yourposition or rank, you were well acquainted with all the duties and problems of Einsatzgruppe-D? because I held this particular rank, but they were just know to all the members of the Einsatzgruppe.
Q All the duties and all the problems?
A Excuse me. All the problems is a bit too far, Mr. Prosecutor. I have already stated that I could never say that I was acquainted with all problems, or all matters concerning Einsatzgruppe, for as I said, I wasnot present in a number of discussions which Ohlendorf had. Book III-D, page 1 of the English, page 1 of the German, which is Document NO-2856, and is Prosecutor's Exhibit No, 148; the same being Ohlendorf's affidavit. Let's look at page 2 of the original, which is the second complete sentence on page 2 of the original, and it says, and I quote: "Seibert wasacquainted with all the duties and problems within the framework of Einsatzgruppe-D." Is that statement true? the fact that one question might have cropped up that I didn't find out and I didn't learn about in some form or other, because it is quite impossible during a period of one year to say all questions and all problems have been made know to me. We would have again to discuss the term "problems."
THE PRESIDENT: I am sorry.
MR. GAWLIK: Mr. President, I think I found it. In the following words which are found in the volume of Wharton's, volume 3, it is page 1301, about cross examination. It says here: "Irrelevant, collateral, improper, or repetitious testimony," and it says the following, I shall translate it and I shall give it to the translators in case I make a mistake in the translation. "The cross examination should be confined to the question of factual questions, and should exclude questions concerning expressions of opinion, or speculative questions, or all argumentative questions, especially questions of an argumentative nature which call for an opinion or conclusions, or of some assumed knowledge of facts improper.
"And an exception so far as I know has only been made within scope of an expert when one can, of course, ask speculative questions of an expert, hypothetical questions based on facts. This is expressed here. It says here, it is maintained that a hypothetical question to an expert witness can be put in the cross examination, and it must be based on the basis of material which is offered in this particular case, and this is not the case here because he is not an expert witness. I shall not passit unto the interpreter, or to Mr. President, if you would like it, I shall show it then to the President.
THE PRESIDENT: Well, Professor Gawlik, what you have read is, of course, the law, and your interpretation is absolutely correct, and the best evidence on that is that the witness replied to the question which is now a matter of record, namely, the question put to him was of a factual nature. Mr. Walton asked the witness, what happened when he called on the commando leaders, what wasthe relation between then, and the witness stated, it was a very friendly one, and that they discussed what occurred. Then Mr. Walton askedhim, if the commando leader sought your advice in the matter of replacements, what would you have said to him. You see, it is purely factual, and it is entirely relevant. If Mr. Walton had said to the witness, now witness, suppose while you were in the wilds of Crimea, you were attacked by ten tigers, and you did not have a pistol, what would you do? Now that would not be permissible, because up to this point we have not heard anything about tigers in the Crimea. So long asit is based on facts in the case, a question such as Mr. Walton put is entirely proper.
Dr. GAWLIK: Yes, but it follows, Your Honor, that repeatedly the following happened. The witness said these things had not happened, and then he was asked if it had happened what would have happened, and I believe.......
THE PRESIDENT: Yes, oh ---
DR. GAWLIK: And I think in this case the question is inadmissible. I would like Your Honor to tell me whether I am right in this?
THE PRESIDENTS Yes, again, Dr. Gawlik, we go back to whether it is factual, if it is based upon what has actually been testified to, and it is entirely relevant, and the mere form of the question does not make it inadmissible, because in cross examination that is the only way you can arrive at the truth, because if you allow a witness to say that didn't happen, and you stop there, then you cannot delve into it any further, and there is no use having a cross examination; so long as it stay within the realm of the subject of discussion, questions of the nature which were put by Mr. Walton, which you call hypothetical questions, which are not really hypothetical questions, are entirely in order. However, I do not exclude to you, Dr. Gawlik, the right to object any time you feel that the question is improper.
DR. GAWLIK: Thank you, Your Honor.
THE PRESIDENT: You are welcome.
MR. WALTON: If it please the Tribunal, may I confer with the court stenographer to find what was the last question. I don't think the answer was complete.
THE PRESIDENT: Mr. Gallagher, will you please read that last question.
(Whereupon the last question was read before the Tribunal as follows)
"Allright, I can only call your attention again to Document Book Document No. 2868, and is Prosecutor's Exhibit No. 148; the same being Ohlendorf's affidavit.
Let's look at page 2 of the original, and it says, and I quote:
"Seibert was acquainted with all the duties and problems within the framework of Einsatzgruppe-D." Is that statement true?"
) BY MR. WALTON: before you?
Q Is that sentence quoted true?
A The sentence as quoted here is correct. I have already added to it that it did not exclude -- that it never could exclude that discussions took place, the contents of which I was not informed about, and, secondly, I do not know how far the concept a "problem" can be defined. Ohlendorf was away?
A I cannot answer this. It is quite possible that orders came, but I don't know. a commando? the order, that order would be given to the Commando itself. If, however, I had received it, I would, have passedit on to the authorities of the Commando. headquarters were located, there was one or more commandos nearby? your headquarters was there?
A In Simferopol itself there was Kommando-XI-B. The other units were according to my present estimate, the nearest commandos were at a distance of about eighty to one-hundred kilometers to the south, and to the east and to the west.
one near your headquarters. There was just one commando, was there not?
Q And you answered, this was XI-B? in the town?
while they were in Simferopol, and while they were in Nikolaev? one of these commandos while General Ohlendorf was away from his headquarters? were summoned to the executions were collected, have you not?
A What order are you referring to? To what order may I ask? were summoned to execution was collected before the execution, have you not? but generally I think I did know about it. money, or valuables turned over to Einsatzgruppe-D by the commando performing the execution? administrative leader. D Headquarters?
A I would assume so. He might have been absent sometimes, but so far as I remember he was always there.
Q Well, now, isn't this clothing collected for a specific purpose? use of.
Q Don't you know as a matter of fact, this clothing was turned over to the National Socialist Welfare Organization for redistribution?
A I don't know that this did happen in all cases, but I remember now that it did happen.
to clothe Ethnic Germans?
A No, in this case we misunderstand each other. My economic question I dealt with as an intelligence officer, I had to deal with the problems in occupied territories of that nature, but not the economic questions of supply. All those questions an administrative officer or economic officer had to deal with, and that is something entirely different.
Q Well, now, Colonel, if these men didn't have enough food in the occupied territories, or these people didn't have enough food in the occupied territories, you would report such fact to Berlin, would you not?
Q And if they didn't have enough clothes for the winter, would you report that?
A Yes, I would have reported that, too. Excuse me, not men of Einsatzgruppe, but the population. We must understand each other here. It is the population. cluded the ethnic Germans who were being settled in this occupied territory, didn't it?
Q Now if these people didn't have enough clothing, enough coal, or enough furnishings, that would be a question which you would deal in with as Chief of Leiter III. Germans. your office as to the distribution of these clothes collected from people who were shot, wouldn't you?
ethnic Germans, and, if I now assume, that they had not enough clothes, as to how this situation was being dealt with, that was not for me to decide, it was never a matter for the SD official. I only had to report about it. point I am making is, that you have reported to Berlin that the Ethnic German Settlers who were part of the population didn't have enough clothing; later, did you ever make an inspection to see if this lack of clothing situation was relieved?
A I cannot remember that. Obviously I visited the ethnic Germans' territory, but not to inspect them concerning these questions, but in order to inform myself generally about the position.
Q All right. Now the information that if you had made a report to Berlin that they lacked essential clothing, would you not consider it a matter of information to later on see if your report about this lack of clothing had been acted upon? after each report. But many of these reports were only meant for information, and whether these matters were being dealt with was something for the SD, the competent authority to deal with which received these reports. the fact that the matter was attended to later on? had sufficient clothing, now in that case, yes, of course, I would have reported about it. of clothing from all sources whatsoever, weren't you?
A What do you mean by interested, Mr. Prosecutor? I reported about these matters, and if they changed I reported again.
Q All right, you had enough interest that they didn't have clothing, and to report that fact. Now didn't you have enough interest to report possible sources of clothing for these people who lacked it?
You had enough interest to report the fact that they lacked clothing. Didn't you have enough interest to go one step farther in your report, and report to the proper authorities the sources of the clothing so these people could have their needs relieved? included in the reports. it was remote?
A That is not of remote interest. I did this according to the reports, and if I found out the source I just reported about the source, and if the fact that the shortage was over, then, of course, I reported about that fact.
Q Let's go back to these people who were executed. Was that clothing kept for any length of time in Einsatzgruppe-D Headquarters?
Q I didn't ask you about a camp. was read to you, in which you stated the valuables and clothing were collected by an inspector from AMT-I. They were registered, and sent to Germany, and the money and valuables were either deposited in a local bank or sent to Germany, and that this inspector was responsible to Ohlendorf?
A That is correct, Mr. Prosecutor, this administrative officer had to deal with such tasks; the money and valuables, as I said, were sent to the group, but no clothing was taken to the group, but this administrative officer just took care of it. In the Commando he was the competent authority. That was within his competence.
Q Took care of what?
Q In the headquarters of Einsatzgruppe D?
A Yes. It did not mean, however, that a transport of all these things to the Einsatzgruppe took place. or valuables in Einsatzgruppe D... there was no store for these items.
A I don't know whether that was translated differently. I said the same just now. I said, Mr. Prosecutor, that that does not mean a transport of clothing from the kommandos to the Einsatzgruppe. stored in Einzatzgruppe D for a day, or a week, or a month?
Q I didn't ask you whether you ever saw it; I asked you whether it was there.
A I do not know, Mr. Prosecutor.
Q It could have been there, then?
AA large store would have struck me... I would have seen it.
Q All right. What was the name of this inspector or administrative officer to whom these items were entrusted for transmission to Berlin?
Q Was he on the staff of Einsatzgruppe D?
A Yes. He was a member of the staff. headquarters of Einsatzgruppe D?
Q Did you know what his duties were? were eight different sections which were under a staff officer who dealt with the section pertaining to his work. Of course, what became generally known, became also known to me.
Q Yes. And he reported his disposition of these items, did he not?
Q Well wasn't that a matter to be included in the reports to Berlin?
A I don't remember any report in which there was anything to this effect. There could have been individual memoranda or letters from this administrative officer. not go through the general report which you made out? entirely different department.
Q I am not speaking of your reports as Chief of Office III; I am speaking of the general reports which you drew up for the whole Gruppe. Were his activities ever included in those reports?
A He made out his own reports. And a listing of these reports within the general situation reports, I cannot remember. Berlin besides the general situation reports?
A Many of the departments, yes. For instance, the motor pool expert reported about the Office II, about conditions in the field of transport; the medical officer had to report continually to the medical office in the RSHA. The interpreter, of course, did not make any reports. The departments had been given deadlines from the offices in Berlin. lected by the kommandos, had been sent in to Einsatzgruppe D headquarters, were they not?
A No, I have already said they were not sent there. If they had, I would have seen larger stores. concerning watches and rubels - which is contained in Document Book III-D?
Q Now, where did these watches come from...and these rubels? the administrative officer of the Einsatzgruppe. The administrative officer knew about this.
Q From where did they come - from the kommandos?
Q Now, the Einsatzgruppe did not keep these items, did they...of money and watches? says, to the Wehrmacht - didn't they?
Q Did they take receipts for deliveries to other authorities?
A Not personally. I personally didn't get a receipt. But I am sure that the administrative officer had these receipts. He had to have them. shipments of clothing and watches and valuables from Einsatzgruppe D? Einsatzgruppe.
Q All right. Valuables, watches, fountain pens, eye-glass frames, jewels, rubels... how many times do you estimate that shipments were made to higher authority from Einsatzgruppe D? was there. It is possible that this happened in the army a third time.
Q Then of all the executions performed by Einsatzgruppe D... only twice or three times valuables were sent in to the headquarters?
A They were not sent to headquarters. That was so in this one case... that is mentioned in this letter. were selected for executions, didn't you?
A Yes, I learned about that... but whether they were items which were generally confiscated I could see that, of course - I did not know any details. They may have been of other people who had to give up their valuables for other reasons. That I don't know.
Q All right. Wasn't it the responsibility of every man in that headquarter to see that no Einsatzgruppe personnel enriched himself by keeping such items for his own use? once, and of course I also was informed about it.
Q Well, isn't it a fact that these shipments were made regularly, from time to time, out of Einsatzgruppe D headquarters?
A I really can't say that. It is quite possible that I made a mistake when I said twice, and that it might have happened more often, but that there could have been a shipment weekly or fortnightly, I don't know. I think it quite impossible. General Ohlendorf's adjutant, have you not?
Q How well did you and Schubert know each other? Office I of the RSHA. Before the assignment I must have talked with him on one or two occasions in Berlin, but I did not know him better than that. I only met him again in the assignment. they not? contact with Lt. Schubert, didn't you? other daily; but I have already said that I was often away with Ohlendorf, or by myself; but otherwise, of course, I saw him daily when he was there and I was there. from his headquarters? that I did not order Schubert because he was a personnel acquaintance of mine, but I just told him to do something.
Q Yes. Did Schubert know your functions and duties in the Gruppe?
Q Now, if Schubert made the statement that, and I quote: "In matters where one did not want to bother the chief, one turned to Seibert" - would that be a true statement? or for some reason or other was away, he came to see me because I held the highest rank... that is quite correct in that form. which you have stated? Would you render a decision in these matters? called to my attention. If it was pertaining to my own sphere, certainly would have been able to make a decision. Otherwise, I could only have given advice, and I could have said who the expert was for this particular shpere. gave any directives or orders? the special situation in the Crimea, I can never say generally that this was absolutely excluded as a possibility; but I do not remember any directives which have anything to do with spheres that I have mentioned.
Q But it could have happened, even though you don't remember?
A I don't know.
Q It is possible, isn't it? in there, and their duties - if Schubert considered you the full deputy of Ohlendorf he had a basis for this assumption didn't he?
A Hour he had it personally, I do not know. I can only imagine, as I already said, that he was aware of my position within the staff, yes.
Q All right. Let me call your attention to his affidavit of 24 February 1947, which is contained in Document Book I, page 108 of the English, 141 of the German, and which is his affidavit 3055, Prosecution Exhibit 28. Let me call your particular attention to paragraph 2, the second sentence thereof, which reads, and I quote: "In October 1941 I was assigned to Einsatzgruppe D. Otto Ohlendorf was the Chief of the Einsatzgruppe, and Willy Seibert was his deputy." Do you find that sentence?
A Yes, I've got it, Mr. Prosecutor.
Q That is a true statement, isn't it?
A I have already given my opinion on that. Schubert was detailed to the staff and he found me there -- as the highest ranking officer and as the deputy for the Staff, and this is the only way I can regard this statement.
Q Do you know Karl Jonas, J-o-n-a-s?
A Jonas? I seem to remember the name, surely.
Q Well, I'll tell you. He was second in command to Hans Gabel, the chief of the order police company attached to Einsatzgruppe D.
Q Do you remember the name now? gruppe D? I saw Jonas very rarely - that means not very often; I am just thinking over to what kommando he was assigned. I cannot remember exactly.
A Yes. Yes. That is correct. I don't know at the moment in what kommando he served.