MR. HOCHWALD: If the Tribunal please, the Tribunal will certainly recall that the Defendant Radetsky had testified at great length about his activities with this repatriation committee of Baltic Germans. For this reason in order to rebutt his testimony, these two documents are certainly relevant.
THE PRESIDENT: The Tribunal will pass on these objections at the end of the presentation.
DR. RATZ: Your Honor, finally I object against the Document NO5814, Exhibit 212, page 75 of the German Document Book. This is an affidavit by Oberlandesgerichtspraesident Dr. Heinrich. Dr. Heinrich gives his legal opinion based on studying law, but he cannot comment on how this law was applied in practice. He has no practical experience in handling this law and in applying this law, and theory and practice in wartime very often varied from those in peacetime. Dr. Heinrich is not an expert for administrative practices. In particular, he has no knowledge about the practical application of the War Emergency statutes in the Warthegau. It is not a matter of admissibility or lack of admissibility or a war emergency draft, but all that is being discussed, is whether Radetzky was actually under the War Emergency Statutes. The affidavit says nothing about that and therefore, in my opinion....
THE PRESIDENT: Dr. Ratz, this is not the time to present the argument. Now, Mr. Hochwald has submitted this affidavit; and if you think that it doesn't prove anything against your client, you can show that in your summation. We are not hearing arguments now.
DR. FICHT (Counsel for the Defendant Bieberstein): Your Honor, concerning the last matter, I apply that Oberlandesgerichtspraesident Dr. Heinrich be called here for cross examination so that it can be determined whether he has practical knowledge about the application of these regulations.
MR. HOCHWALD: If the Tribunal please, I do think that the request on the part of the defense counsel for Bieberstein in this case is not relevant.
As far as I do remember, it is not the defense of the Defendant Bieberstein in that he was drafted into the SD on the basis of this decree. Only this decree and the legal aspects of this decree are subject of this affidavit. The Prosecution fails to see what the Defendant Bieberstein has to do with this document. rebuttal evidence as good as I could, as to names. I have, if I am not mistaken, stated that the defendants Radetsky and Graf have brought forward the defense of having been drafted on the basis of emergency decrees, and both of those defendants have introduced translations of the decrees as evidence. I am not aware of the fact that this affidavit is offered in order to prove something in the case of the defendant Bieberstein.
THE PRESIDENT: Dr. Ficht, if you wish to submit any other affidavit or statement to contradict this, you may do so; but we see no necessity of calling Dr. Heinrich as a witness.
DR. FICHT: Now, I withdraw the request since the Prosecution has said that this document will not be used against Bieberstein, but according to the previous explanation of the Prosecution, I could not assume that.
THE PRESIDENT: Very well.
DR. FICHT: Your Honor, in reply to the statement made by the Prosecution concerning the documents offered as Exhibit Number 204, 205, and 206 which he has offered, I would like to add here that these documents occurred before the time when Bieberstein was in EK-6 and was about 500-1000 kilometers distant from the place where he was. May I say here that during that time civilian administration was already used there and Einsatzkommandos were no longer in charge.
THE PRESIDENT: Well, if the dates of the document show that, then, of course, there is nothing for you to worry about. It is a matter of argumen tation in any event.
MR. HOCHWALD: May I proceed with Document Book 6, Your Honor?
THE PRESIDENT: Please.
MR. HOCHWALD: Document Book 6 contains only translations of certain of the emergency decrees in connection with the execution of the Four Year Plan, and I will just offer these documents without commenting on them. These documents are offered in evidence only in order to give the Tribunal a basis to judge the affidavit of Dr. Heinrich, about which I have just offered as Prosecution Exhibit 212. on page 2 of the Document Book as Prosecution Exhibit 214; NO-5858 on page 3 of the Document Book as Prosecution Exhibit 215; and Document NO-5859 on page 5 of the Document Book as Prosecution Exhibit 216; on page 7 of the Document book, Document NO-5860 as Prosecution Exhibit 217; and Document NO-5861 which is on page 9 of the Document Book as Prosecution Exhibit 218; finally, Document NG-3678 on page 10 of the Document Book as Prosecution Exhibit 219. I only respectfully request the Tribunal to permit me to re-offer the document which was unfortunately incomplete when I offered it, after the rebuttal of the Prosecution will be over. Mr. Glancy will now proceed and offer Document Book 5-A.
MR. GLANCY: May it please the Tribunal.
THE PRESIDENT: Mr. Glancy.
MR. GLANCY: May I proceed with the presentation of Document Book 5-A?
THE PRESIDENT: Please.
MR. GLANCY: My remarks, if any, Your Honor, shall be necessarily brief because I consider all my rebuttal evidence as self-explanatory. I offer NO-2262 as Prosecution Exhibit 220. This is a letter signed by the Defendant Strauch. His signature appears on page 15.
I offer Document NO-4317 as Prosecution Exhibit 221. This again is a letter signed by the Defendant Strauch. His signature appears on page 19.
I offer Document NO-5498 as Prosecution Exhibit 222. I respectfully request the Tribunal to ignore and strike page 2 of this affidavit as it was previously offered as against the Defendant Blobel, but as it is outside of the period covered by the indictment, it is inapplicable and inadmissible. However, page 1 refers to the Defendant Strauch and refers to happenings and occurrences in the middle of February 1943, well within the period of the indictment. 223. This is a situation report - rather, two situation reports. It serves to corroborate some of the other documents offered by the Prosecution in re Strauch.
I offer Document NO-5167 as Prosecution Exhibit 224. This also refers to the Defendant Strauch. It refers to activities in partisan warfare, reputedly, and I call the attention of the Tribunal to the number of persons killed for having been suspected of aiding or supporting the guerrillas.
I offer Document NO-5166 as Prosecution Exhibit 225. This also refers to the Defendant Strauch and reported actions against the partisans .
As the prosecution's last exhibit I offer Document No. 5188 as prosecution exhibit 226. On page 39, the last page of the document book, it is reported,."On 9 May 1942 in the town of Minsk 28 members of the White Ruthehian Partisan organization were publicly executed by hanging." There is a distinction made in the third line, however. It states, "On the same day 251 persons", and we will note this "predominantly Partisans and Jews were shot". 9 May 1942 is within the period in which the defendant Jost was commander-in-chief of the security police and SD for Eastland. This concludes my presentation of Document Book VA rather. Mr. Ferencz will be here momentarily to present V B.
PRESIDENT: Very well.
MR. GLANCY: Thank you.
MR. WALTON: If it please the Tribunal, in order that time will not be lost, I am ready with Document Book 7 D, if it can be presented in that order.
PRESIDENT: We would be grateful if you would proceed.
DR. WALTON: The prosecution at this time offers Document Book V D, page 1, Document NOKW 1573 as prosecution's exhibit 227. This document is offered in rebuttal as against the contentions of the defendants Ohlendorf, Seibert, Braune, and Schubert, and shows that prior to the execution held just before Christmas 1941 executions were being held continuously during the period 5 to 15 November 1941, and this slaughter was in the midst of an allegedly friendly population. ment 4147, already given the prosecution exhibit Number 188. This is the affidavit of Emil Haussmann, deceased, and relates some of his experiences in Einsatzkommando 12. Attention of the Tribunal is especially called to paragraph 5 of thus document wherein this deceased affiant relates facts concerning the report of 300 to 350 executions by the defendant Nosske's command. Since no reply brief was filed by the defense on prosecution's written motion of 19 December 1947, I assume that the defense has abandoned their objection.
PRESIDENT: Mr. Walton, that is a rather powerful statement, you just uttered, and we wouldn't want to hold the defense to it, with Dr. Hoffmann being absent.
MR. WALTON: It is merely an assumption on my part. I didn't purport to speak for the Tribunal.
PRESIDENT: And I didn't mean that you were. I just wanted to protect, for the record, Dr. Hoffmann's position and it will be called to his attention. That is something that should appear upon the record at this moment, that anyone reading it wouldn't assume that the defense had abandoned their position without a statement from Dr. Hoffmann to that effect.
DR. WALTON: The prosecution next reoffers in Document Book V D, page 4, Document No. 5111, already offered as prosecution's Exhibit 193. This document is the affidavit of the defendant Heinz Schubert, which shows that the defendant Willy Seibert was the assistant commanding officer of Einsatzgruppe D and not deputy for purely staff matters, no more than the defendant Ohlendorf was commanding officer purely of the staff or Otto Schnopfhagen was the physician purely for the staff. ment No. 5273 already in evidence as Prosecution's Exhibit 184.
PRESIDENT: Mr. Walton, why do you reoffer a document of it is already in?
Mr. WALTON: I called that to your attention at the time that the document was offered. There was a paragraph in there which referred to the defendant Willy Seibert as the deputy of Ohlendorf. The Tribunal recognized the fact that parts of affidavits could not be offered and, therefore, specifically requested that this paragraph 4, particularly the first sentence thereof, be reoffered in rebuttal.
PRESIDENT: Very well. Have you given it a new number?
MR. WALTON: Your Honor, that is identically the same number that was given --184--at the time it was offered. Technically, this is a reoffer of two sentences of paragraph 4.
PRESIDENT: Would you then let us have that number again, please.
MR. WALTON: Document 5273, Prosecution Exhibit 184. At the time, Your Honor, that that was offered I thought that the processing of the document, with enough copies, would have been completed before I finished with my cross examination. It was not. I had to have permission of the Tribunal to reoffer it in the rebuttal. The same document number and the same exhibit number is given as was assigned at that time, 193. Could I have some expression from the Tribunal as to Document Number 5273? Does the Tribunal want it reoffered again as to that sentence in paragraph 4?
PRESIDENT: Well, you have already reoffered it.
MR. WALTON: Oh, I mean, given another exhibit number I should have said, as to that paragraph 4.
PRESIDENT: The same number will be retained and--well, the same number will be retained and we will indicate it was reoffered.
MR. WALTON: Very good, Sir. This paragraph 4 shows in what manner this affiant regarded the defendant Willy Seibert. Erwin Lahousen, contained in Document Book V D, page 11, Document No, 2894. T his affidavit is offered as prosecution exhibit 228. It is clearly shown on pages 13 and 14 of the English document book that Russian prisoners of war and even Tartars from the Crimea were arbitrarily executed by the Einsatzgruppe there. The citation is on pages 5 and 6 of the original. code. Since this section, which is found on page 49 of the original is offered in Document Book V D, page 17, it is Document No. 5854, of Prosecution Exhibit 229, in the form of an excerpt from the cited volume. This law shows the responsibility for issuance of and obedience to an illegal order. As this Tribunal has said, murder has been considered a crime by every lawgiver since Moses, but the prosecution cites the even older precedent followed by Moses himself, namely, the defendant Gain adjudged guilty of the murder of his brother Abel and punished therefor. This is supported even by German law that illegal orders, that is, orders to murder did not have to be obeyed by these defendants.
Document No. 5856, Prosecution Exhibit 230. This document is a certified transcript of the interrogation of Dr. Roman Loos, head of the secret field police with a German army group, who gives his opinion based on long military service and his own knowledge of such matters concerning the obligation to obey illegal orders. Particular attention is, therefore, called to pages 20, 21, and 23. This substantiates the cited section of the German military penal code. If Your Honor please, on page 29 of your Document Book V D in the certificate of Mr. Walter H. Rapp, I should like very much for you to delete the word "translation" in the last line, fourth word from the end, and write in the word "transcript" as appears on the photostatic copy of that certificate. ment No. 5821, as Prosecution's Exhibit 231. This document is the affidavit of Rudolf Diels, the former head of the Prussian Gestapo, who testifies that it is possible to disobey illegal orders without serious personal consequences He relates instances wherein he personally disobeyed such orders in his capacity as a Gestapo official.
PRESIDENT: Just a minute, Mr. Walton. Does the affidavit indicate who Rudolf Diels is?
MR. WALTON: No, Your Honor. This witness has given several affidavits here. Probably this was a series of affidavits and in one of which he indicated his official position.
PRESIDENT: Will you please repeat who he was?
MR. WALTON: Yes. Rudolf Diels was during a part of his career the first head of the *russian Gestapo which later became the Gestapo for all of Germany.
PRESIDENT: Very well.
DR. RIEDIGER: Your Honor, in my opinion one has to object to the presentation of this document. The probative value of this affidavit in my opinion, does not exist because this witness could not possibly have known anything about conditions concerning the defendants, and could not testify about it.
That is why I went to object to the admission of this document.
PRESIDENT: Well, Dr. Riediger, the affidavit is by no means controlive and decisive. It doesn't mean that because he thinks so that makes it so, but it does offer a piece of evidence on how it was regarded--how this military order was regarded in other instances.
DR. RIEDIGER: The probative value will be discussed again later on, I presume?
PRESIDENT: By all means.
MR. WALTON: It is only offered in substantiation of the fact that people have disobeyed superior orders and gotten away with it. It is rebuttal argument.
PRESIDENT: Yes, Yes.
DR. RIEDIGER: Your Honor, I would like to reserve an objection against this document for Dr. Gawlik, who is not present, and I think he has some objections to it which I do not know yet.
PRESIDENT: Yes. Reservations will be made in behalf of Dr. Gawlik, so that he may present whatever objections he desires to this document when he returns to the court room.
MR. WALTON: The last document in Document Book V D is found on page 32 thereof. It is Document No. 4993, and is Prosecution's Exhibit 232. This document is an affidavit of one Robert Barth, who states that he was a member of Einsatzkommando 10B, and that on occasions and at certain times the defendant Felix Ruehl was deputy to the commanding officer, one, Persterer. the prosecution desires to offer. It is a long manuscript of the speech or lecture prepared by the defendant Otto Ohlendorf, concerning the superiority of the National Socialist form of government over existing forms of governments. I am informed that the processing of this document is an extensive task and it will be completed by the end of the week. I, therefore, ask leave of the Tribunal to offer this document as soon as it is processed, or at such session as the court meets for the purpose of hearing the remaining objections to the defense documents or of handing down its ruling on matters yet pending which is scheduled for decision prior to the verdict and judgment.
PRESIDENT: An opportunity will be afforded you to present that document, allowing the defense also opportunity to object to it, if they so desire.
DR. KOESSL: Koessl for Schubert. I would like you to instruct the prosecution to state why they introduced the Exhibit Number 27, NOKW 1573against the defendant Schubert. Schubert never deeded having known that Jews were killed. In my opinion there is no reason to submit this document against Schubert. I don't know which statements by Schubert the prosecution is trying to refute by submitting these documents.
MR. WALTON: Your Honor, that is a matter of argument. If the Tribunal desires me to reply to that, I am prepared to do so.
PRESIDENT: Well, if Schubert has not denied knowing that executions took place, and this merely indicates that he does know that executions took place, the most you can say about it is that it is cumulative.
MR. Walton : Your Honor, Schubert was a member of the staff of Einsatzgruppe D. Every document which does not specifically name a commando or a personality is certainly of some proof, regardless of however slight, as against Einsatzgruppe D as a whole, it is certainly proof against the staff who are directing the destinies of Einsatzgruppe D. Therefore, to offer a document against Einsatzgruppe D as a whole where no commando or no personality is mentioned certainly tends toward proof as against the headquarters staff and those who were the commanding officers of the headquarters staff, and those who had knowledge of these reports.
PRESIDENT: Dr. Koessl, you see that this is a theory advanced by the prosecution. It is an argument to which you have the right to reply, and the document is before us for whatever probative value it has and whatever light it might shed on this contested point.
DR. KOESSL: Yes. I merely wanted to point out that apparently the prosecution has no reason to refute any statement by Schubert it does not even try to refute any statement by him. That is why I do not see why the prosecution, when submitting this document in the rebuttal, mentioned the defendant Schubert in particular.
MR. WALTON: I suggest that Dr. Koessl wait with what patience he has at his command. I finished the Schubert brief last night. Today it is being typed, and tomorrow I am sure that it will be in the hands of the Translation Section, and that contains my entire argument as to the guilt of the defendant Schubert.
PRESIDENT: To which you will have the right to reply, Dr. Koessl.
DR. KOESSL: Thank you.
DR. LEHNERT: Dr. Lehnert for Seibert. Your Honor, first of all, regarding the first document, NOKW 1573, Exhibit 227, I would like to raise the same objections which my colleague Koessl has raised against the first three documents contained in this document book, I would like to object, too, and I ask that these be not admitted for the following reasons: These three documents are not rebuttal documents. The meaning of a rebuttal document consists of the fact that the rebuttal statements of the defendants are to be refuted. The purpose for which these documents were submitted here is, however, nothing except to prove the statements by the defendants, but that is not the nature and the purpose of rebuttal. In detail, I would like to mention the following concerning these documents. The Document NOKW 1573, inasfar as it was submitted against Seibert, is irrelevant. It has no relationship to the defendant Seibert. Concerning Document NOKW 5111, Exhibit 193, the prosecutor argumented that Seibert was deputy commanding officer of the Einsatzgruppe. In vain have I looked for such a passage. It merely says that Seibert was the permanent deputy of the group staff. Concerning Document No. 5273, Exhibit 184, which was submitted only concerning Count 4, I object to the following: The affiant merely gave his opinion. No facts are mentioned as to how the affiant obtained that opinion. The affidavit, therefore, contains no facts. Therefore, I consider this statement as irrelevant and ask that this objection be sustained by the Tribunal.
MR. WALTON: Nothing further to add from the prosecution.
PRESIDENT: Mr. Hochwald.
MR. HOCHWALD: If the Tribunal please, I only want to reoffer Document No. 3251 which is in Document Book V C as Prosecution Exhibit 207. I have furnished Dr. Riediger with the German copy of the letter in question and I have also received now the complete photostat, so if Dr. Riediger wants to offer his objections now, it would be possible.
DR. RIEDIGER: Concerning the submission of this document as such, I have no objection. Your Honor, since this document again concerns the question of time, of dates,-I beg your pardon if I have to do this during rebuttal - I would like to refer to the witness mentioned this morning. The Defense Center told me that it is impossible to get a witness from Berlin sooner than within 10 days since the passage through the Russian zone has to be approved by the Russians, and that takes 10 days. I have already requested an affidavit from the witness Mendler. It has not been received yet. I merely received a letter in reply to my request in which he confirms that in January and February 1942 he treated Haensch, but since the Tribunal has emphasized that they wanted to find the real truth, I would like to move that this witness, on the suggestion of the Tribunal, be interrogated in Berlin by an American officer from the Tribunal. That way it would be possible to get this testimony in the shortest time. A journey to Berlin by me is technically no longer possible because permission for this, owing to the fact that the Russians have to give the permission, will take two weeks; but time is very important to the defendant Haensch about whom the witness is to be questioned. I beg your pardon for mentioning this here, but it is so urgent, considering the time, that we should try to make it possible that this witness be heard.
PRESIDENT: Mr. Hochwald, you have heard Dr. Riediger's request.
MR. HOCHWALD: If the Tribunal please, I would very much like to agree with Dr. Riediger on the fact that the witness may be heard by a commission, however, the Tribunal will understand it is an extremely important question and the prosecution in this special case cannot waive the right to cross-examine the witness. I certainly do not want to make any difficulties, and I would like as much as I could to aid Dr. Riediger in getting this thing straightened out, however, it is my opinion that with the proof offered by Dr. Riediger, the time can be given. Dr. Riediger had the witness Schreyer here. The witness Schreyer submitted certain evidence. He submitted certain evidence which was in the hands of the witness Schreyer as to the fact that the defendant Haensch was in February 1942 in Berlin. We have submitted, with the permission of the Tribunal and in accordance with defense counsel, all those exhibits to a German research.
PRESIDENT: Well, Mr. Hochwald, we needn't go into the history now. Would there be any possibility of having this witness here, say, in a week's time. We might be willing to sit specially, say, for a period, for a day or an hour or whatever time is required next week, if this witness could be had here in a week. Ten days would be too long, but if we could be assured, say, a week from today--Dr. Riediger, will you take up with the Defense Center the possibility of this witness being brought here, say, in a matter of 6 or 7 days?
DR. RIEDIGER: Your Honor, the Defense Center informed me that I have tried everything in order to speed this up. They said it was so difficult because the Russians have to give permission and in order to obtain that permission it takes a certain period of time.
PRESIDENT: Well, I will tell you what you do. You prepare immediately a request in writing to the Tribunal and bring it to me before we reconvene this afternoon and then I will contact the Defense Center and see if there is any possibility of expediting the departure of that witness and accelerating the arrival here in Nuernberg, just that I will have a request from you in writing.
DR. RIEDIGER: Your Honor, the application by me for this witness has been handed in some time ago and I think it has been handed to the prosecution as well, and I think -
PRESIDENT: Well, I don't want this to be the usual formal application, but a letter written to the Tribunal indicating the great need and the fact that the trial is about to terminate, and that the request should be expedited.
DR. RIEDIGER: Your Honor, I shall hand in the application then before the Tribunal resumes its session. Thank you very much.
MR. FERENCZ: Your Honor, in order to insure that the defendant has every possibility, the prosecution is ready to offer a suggestion. If the defense counsel will telephone Berlin and speak to the witness, we will accept the stipulation on his part as to what the witness would testify to were he brought to Nuernberg.
PRESIDENT: Well, if you are willing to stipulate to that, then a statement from the witness would be sufficient.
MR. FERENCZ: Or a statement from the witness-we do not, of course, admit the truth of the statements, but we do admit the stipulation that that is what the witness would testify to if he were brought to Nuernberg.
PRESIDENT: Well, if you are willing to stipulate that, then is a more matter of going to the witness' home and getting the statement which certainly could be arranged by your representative in Berlin.
MR. FERENCZ: I don't know where the witness is, Your Honor, if the witness is in the Russian Zone, there may be difficulties for as, too, but if he can be reached, I don't want the prosecution to have the burden of going out to find a defense witness and information for them. We are ready to help them, but not to do their work for them.
DR. RIEDIGER: Your Honor, the witness is in the American Zone in Berlin. To carry out the examination there should not present any difficulties.
MR. FERENCZ: Your Honor, our staff in Berlin is very limited and overworked.
I am sure that between now and the closing of this trial the defense counsel could go to Berlin and obtain the affidavit and return, and I am willing personally to offer him any assistance in expediting his travel orders.
DR. RIEDIGER: Your Honor, I can't go to Berlin either within the 10 days, it takes that long to get travel orders, and I have no means of doing it.
PRESIDENT: If you sent off a letter today, how soon could you, get a reply in the normal course of events?
DR. RIEDIGER: Main to Berlin takes from 5 to 14 days. Sometimes I have received letters one way in 5 days, that is, to and fro it will take between 10 and 30 days to get a letter there and back. It is completely unreliable. Already two weeks ago I have requested the affidavit, but I haven't got it yet.
PRESIDENT: Mr. Hochwald had stated that he didn't want to waive cross examination, and that is the reason we had indicated the procedure which we had, but-
MR. HOCHWALD: Mr. Ferencz has waived it.
PRESIDENT: Well, since I made my original proposition now, Mr. Ferencz has made his, and I think we can resolve it this way. Dr. Riediger, if you will make a request to the Tribunal in writing indicating just what it is you desire this witness to testify to, then we will see to it that this is transmitted to Berlin and that the witness will have any opportunity to reply to that question. Certainly in some way or other we can get that answer to your question. That doesn't seem like too much or a problem to us, so you do that. You make a request to the Tribunal in writing, specifying specifically what question you want to have answered, just as if you had the witness here. Put that question, and we will got an answer to that question for you.
DR. RIEDIGER: Thank you.
PRESIDENT: Yes.
DR. SCHWARZ: Your Honor, I would like to ask for Dr. Mayor that the defendant Braune be excused from attendance in court this afternoon, and I would like you to arrange that he be brought to Room 57.
PRESIDENT: The defendant Braune will be excused from attendance in court this afternoon and will be taken to Room 57 in accordance with the usual procedure.
DR. SCHWARZ: Dr. Schwarz for Jost. Your Honor, I ask that the defendant Jost be also excused this afternoon in order to continue preparing his defense.
PRESIDENT: The defendant Jost?
DR. SCHWARZ: Yes.
PRESIDENT: The defendant Jost will also be excused from attendance in court this afternoon and will also be taken to Room 57. Mr. Ferencz, may I ask a question, please. Will the presentation of documents in rebuttal be completed at such an hour that some appreciable time will yet be left in the afternoon session?
Mr. FERENCZ: Yes. The presentation of rebuttal should be concluded within a half hour.
PRESIDENT: Then defense counsel that have not yet presented all their document books will be reedy to proceed. Let us find out right now, if we may, who is ready to proceed this afternoon, after Mr. Ferencz concludes. Well, of course, we always have Dr. Linck ready and I want to congratulate you that apparently everything is OK with you.
DR. ULMER: Your Honor, I am able to present my Document Book II this afternoon.
PRESIDENT: Very well. Then you will be ready to follow Mr. Ferencz. Dr. Linck, will you be ready, please?
DR. LINCK: Your Honor, the battle about which you spoke yesterday, Your Honor, has been delayed until 1315 and at such time--at 1315 I have to be present once more, but about 20 or 30 minutes later I will be able to come here in order to present my documents.
PRESIDENT: Very well, and we hope that you do not come in on your shield.
DR. LINCK: I think I am convinced of that, too.
PRESIDENT: Very well, will anybody else be ready? Will you please let other defense counsel know, those of you who see them, that we will be available this afternoon for the receipt of other documents not yet presented. Dr. Gick should be informed that Document Book I for Strauch is ready, so that he could come in and present that.
The Tribunal will now be in recess until 2 o' clock.
(A recess was taken until 1400 hours.)
(The hearing began at 1415 hours, 21 January 1948.)
THE MARSHAL: The Tribunal is again in session.
DR. HOFFMANN for Noske: Your Honor, I would like to make a brief statement, for the better understanding of the affidavit of Hausmann which the Prosecution has offered as Exhibit 188 and against which I reserved all objection because the affiant is dead. Your Honor, I have been an attorney for ten years and I don't very frequently have formed so complete an understanding for the interest of my client as I have before this Court. Perhaps that has been my fault formerly or perhaps it was the fault of the period of time, but since I am convinced that this Tribunal has full understanding for it I consider it personally as not correct, for a formal reason, to demand anything which would not be serve the finding of the truth. Therefore, I withdraw my formal objection not to admit this affidavit because the affiant can no longer be taken into cross examination. Of course, I reserve the right as far as anything is to be said factually concerning this affidavit to interpret this affidavit in my final plea and to give it that interpretation which I can make of this affidavit, in contrast to that of the Prosecution.
THE PRESIDENT: Well that right, of course, is always reserved to you, Dr. Hoffmann. We don't want you to feel that you are in any way compelled to allow this affidavit to be considered. Mr. Walton has submitted his legal argument as to why he believes that, in accordance with all the authorities, it is good evidence. We were prepared to receive any argument which you cared to submit to the contrary and we don't want you to feel that you are in any way being persuaded to abandon any legal position which you may have at one time charished.
DR. HOFFMANN: Your Honor, in order to avoid this impression from the beginning I made the statement about what I personally think of this matter even though otherwise I would have kept it to myself.
THE PRESIDENT: Very well.
DR. STUBENVOLL (For Ohlendorf): Your Honor, this morning an objection was reserved for Dr. Gawlik against a document of the prosecution. Dr. Gawlik was to raise this objection as representative for Dr. Aschenauer. As Dr. Aschenauer's assistant I myself want to raise this objection. I object to the document in Document Book 5D, document #5821 which was submitted by the Prosecution. This is an affidavit of Rudolf Diels. The defense considers this affidavit irrelevant for the present case. During the war, that is since 1941, Diels was an employee in a private industry. He has no experience concerning the conditions of command in the Einsatzgruppen and even less so about the conditions of the defendants Ohlendorf, Braune, etc. Originally Diels was chief of the Gestaop in Prussia after Hitler took over and was releived from this position by Himmler. Then he became a Government President. On the basis of his good connects to Goering he got a job in private industry after he left this Government job. His example for the application of paragraph 47 - military Penal Code he mentions of the officer who refused to obey an order happened within the Army end was given by a military superior.
THE PRESIDENT: Well, now, Doctor, you are proceeding to argue the law on the matter and that is not what we have before us. Rudolf Diels declares that he knows of an episode where a military person was ordered to execute 500 Jews in Poland and that the officer ordered to do this failed to execute the order and the most that happened to him was that he was considered a coward. Now, that's all this affiant means to us. We are not bound by what he says with regard to rule 47. He is not interpreting the law for us. He is testifying to a special objective fact of which he has knowledge according to his statement.
DR. STUBENVOLL; Yes, but the affiant makes statements which may admit judging conditions in the Einsatzgruppen.
THE PRESIDENT: Well that's what he says but whether we are going to pay any attention to that is for the Tribunal.
DR. STUBENVOLL: Yes, sir.