JUDGE BRAND: Correction, NG-1471.
THE PRESIDENT: What is this document now being offered?
MR. LA FOLLETTE:NG-1472. NG-1472 will be Prosecution's Exhibit 513.
THE PRESIDENT: Has it been handed up?
MR. LA FOLLETTE: Not yet, Your Honor. I'd like to discuss it for a minute. It's on the Tribunal's dosk. This consists of an indictment by the defendant Lautz of a Czech by the name of Chalupa for acts which he committed and which word described as high treason. These acts were committed in May of 1943 in Czechoslovakia, or what was described as the Protect rate. The indictment was filed before the Special Senate of the People's Court in which the defendant Peterson sat as lay judge.
The Prosecution offers as Prosecution's Exhibit 513, the Document NG-1472.
THE PRESIDENT: The document will be admitted in evidence.
MR. LA FOLLETTE: Prosecution's Exhibit 514 will be Document NG-1473. This involves an action filed by the defendant Lautz before the People's Court in Berlin in which the defendant Petersen sat as lay judge. The indictment was filed on June the first, 1941 against two Czech citizens, Pichrt and Hrstka. Pichrt received five years and Hrstka eight years for cooperating with an organization which it was alleged was attempting to furnish people for the Czech foreign legion. The trial was in Berlin on the 24th of March 1942.
The Prosecution offers as Prosecution's Exhibit No. 514, the Document NG-1473.
THE PRESIDENT: The document will be admitted into evidence.
MR. LA FOLLETTE: As Prosecution's Exhibit 515, the Prosecution offers the Document 1474, which is the affidavit of Herst-Guenter Franz August Franke.
THE PRESIDENT: I believe you said that you place this document in some other book.
MR. LA FOLLETTE: Yes, I would place this in Supplement 3-A.
This is the affidavit of Herst-Guenter Franz August Franke, sworn to before Peter Beauvais at Fallingbostel on the 6th day of May 1947. Poter Beauvais is duly authorized to administer oaths in this cause under the Taylor Affidavit, which is Exhibit 3.
I would like to read a part of this affidavit which I consider to be rather important. With reference to the handling of proceedings in the Reich Ministry of Justice on reviewing criminal sentences, this affiant says:
"From the very beginning the proceeding came to us as a case of seditious undermining of the defense spirit" -
THE PRESIDENT: From what page are you reading?
MR. LA FOLLETTE: I am reading from Page 3, Your Honor. It's marked Point 2.
"-- with the report of the Chief Public Prosecutor or of the Chief Reich Prosecutor. If the case had some measure of significance, it would in the same way come to be reported to the Minister of State Secretary. Since in this case no decision on the limitation of competence was to be made, this kind of report was called an information report.
"With ministerial reports everyone who took part in the compilation had the opportunity of giving his opinion freely and in the following regular order: the compiler, the Referent, the Department Chief, the State Secretary. State Secretary Klomm regularly took a very lively and active part in the discussions, and his opinion was accorded full weight according to my observation also in cases of seditious undermining of the defense spirit, so that he contributed to decisions even when he did not make the decision himself, as he did in the Minister's absence.
"Extraordinary appeals were filed after the matter had been presented to the Minister or State Secretary in the same way as described above. The decrees based on all these reports were signed at least by the Ministerial Director, and in cases of fundamental importance by the Minister with counter signature by the State Secretary, or in the absence of the Minister, by State Secretary Klemm himself.
As examples of case of fundamental importance in this sense let the following be quoted. The question of the publicity of the utterance could play a certain role, or the question of the psychological condition of the offender, or the offender's personality."
I skip one paragraph:
"There was no fundamental difference between Thierack's and Klemm's clemency policy in cases of seditious undermining of the defense spirit. Both men were severe in their judgment of these cases, because it was desired to avoid by all means that the critical military situation might shake the internal front, and thus cause a stab in tho back of the fighting forces. The tendency expressed during the decision was that the bloody sacrifices at the front and at home should not be made senseless through a soft clemency policy. Within this frome due account was paid to the personal circumstances of the individual case.
"Klemm and Thierack were known as close friends. They lived together in Lichterfelde, went to work together in the mornings and home together in the evening. We repeatedly observed that cases were discussed between the two beforehand outside work. If for any urgent reason we rang up the Minister in his house, State Secretary Klemm regularly answered the phone. Then he either called the Minister or said: "I will report it to tho Minister." That was also the case with lightning executions, which occurred mostly after air-raids in cases of looting. In criminal cases where the Party Chancellory was to participate, Klemm's connections with the Party Chancellory were made use of in that as a rule the proceedings with the Party Chancellory were handed over to him. Since Minister Thierack did not like negotiating with President Freisler of the People's Court, necessary discussions with Freisler were also handed over to State Secretory Klemm."
I am going to interpolate a minute, Your Honor, to say that what I am reading next I consider to be very interesting, revealing and relevant.
"On the 2nd of May 1945" -- That was just before Berlin fell -- "I was staying at Eutin (Holstein) together with Minister Thierach, State Secretary Klemm and office director Buerkner. Then after a cabinet meeting in Ploon under the direction of Doenitz the marching orders for Flensburg had been issued, I received orders from Minister Thierach in the presence of State Secretary Klemm to remain in Eutin and to camouflage myself. I received an identity card bearing the name Gustav Friedrich and I lived under this name until I was arrested in May 1946. No reasons were produced as to why I was given these orders. The only explanation which I can find is that they wanted to prevent any information about my section from falling into the hands of the enemy according to the principle that documents which had to be kept secret were to be destroyed."
The Prosecution offers as Prosecution' Exhibit 515, the Document NG-1474.
THE PRESIDENT: The document will be received in evidence.
MR. LAFOLLETTE: Mr. King will proceed, Your Honor.
MR. KING: The prosecution desires to offer at this time a portion of the IMT opinion on the slave labor policy of the Government of the Third Reich. He offer this portion from the IMT opinion as Exhibit 516. The portion of the opinion concerning this subject, which we offer for judicial notice, begins on Page 243 in the English text of Volume I of the official documents of the International Military Tribunal. It continues through to near the bottom of the Page 247 in the same volume.
In the German text of mimeographed version of the IMT opinion, the portion which we are offering begins on Page 16,468 and extends through page 16,493.
At this time, I would like to read a portion of the total which we are offering for judicial notice beginning on Page 243 of Volume I.
3448a "Slave Labor Policy Article 6 (h) of the Charter provides that the 'ill-treatment or deportation to slave labor or for any other purpose, of civilian population of or in occupied territory' shall be a War Crime.
The laws relating to forced labor by the inhabitants of occupied territories are found in Article 52 of the Hague Convention, which provides:
"'Requisition in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. They shall be in proportion to the resources of the country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations against their own country.'
"The policy of the German occupation authorities was in flagrant violation of the terms of this convention. Some idea of this policy may be gathered from the statement made by Hitler in a speech on 9 November 1941:
'The territory which now works for us contains more than 200,000,000 men, hut the territory which works indirectly for us includes now more 350,000,000, In the measure in which it concerns German territory, the domain which we have taken under our administration, it is not doubtful that we Shall succeed in harnessing the very last man to this work.'
"The actual results achieved were not so complete as this, but the German occupation authorities did succeed in forcing many of the inhabitants of the occupied territories to work for the German war effort, and in deporting at least 5,000,000 persons to Germany to serve German industry and agriculture.
"In the early stages of the war, manpower in the occupied territories was under the control of various occupation authorities, and the procedure varied from country to country. In all the occupied territories compulsory labor service was promptly instituted. Inhabitants of the occupied countries were conscripted and compelled to work in local occupations, to assist the German war economy. In many cases they were forced, to work on German fortifications and military installations.
As local supplies of raw materials and local industrial capacity became inadequate to meet the German requirements, the system of deporting laborers to Germany was put into force. By the middle of April 1940 compulsory deportation of laborers to Germany had been ordered in the Government General; and a similar procedure was followed in other eastern territories as they were occupied. A description of this compulsory deportation from Poland was given by Himmler. In an address to SS officers he recalled how in weather 40 degrees below zero they had to haul away thousands, tens of thousands, hundreds of thousands'. On a later occasion Himmler stated:
"Whether ten thousand Russian females fall down from exhaustion while digging an anti-tank ditch interests me only insofar as the anti-tank ditch for Germany is finished.....We must realize that we have 6-7 million foreigners in Germany....They are none of them dangerous so long as we take severe measures at the merest trifles.'
"During the first two years of the German occupation of France, Belgium, Holland, and Norway, however, an attempt was made to obtain the necessary workers on a voluntary basis. How unsuccessful this was may be seen from the report of the meeting of the Central Planning Board on 1 March 1944. The representative of the Defendant Speer, one Koehrl, speaking of the situation in France, said: "During all this time a great number of Frenchmen was recruited, and voluntarily went to Germany.
He was interrupted by the Defendant Sauckel: 'Not only voluntarily some were recruited forcibly.'
To which Koehrl replied: 'The calling up started after the recruitment no longer yielded enough results.'
To which the Defendant Sauckel replied: 'Out of the five million workers who arrived in Germany, not even 200,000 came voluntarily', and Koehrl rejoined: 'Let us forget for the moment whether or not some slight pressure was used. Formally, at least, they were volunteers.'
"Committees were set up to encourage recruiting, and a vigorous propaganda campaign was begun to induce workers to volunteer for service in Germany. This propaganda campaign included, for example, the promise that a prisoner of war would be returned for every laborer who volunteered to go to Germany. In some cases it was supplemented by withdrawing the ration cards of laborers who refused to go to Germany, or by discharging them from their jobs and denying them unemployment benefit or an opportunity to work elsewhere. In some cases workers and their families were threatened with reprisals by the police if they refused to go to Germany. It was on 31 March 1942 that the Defendant Sauckel was appointed Plenipotentiary-General for the Utilization of Labor, with authority over all available manpower, including that of workers recruited abroad, and of prisoners of war."
That is all of the total which we are offering -- that we care to read at this time.
We offer into evidence the portion of the IMT transcript from Volume I of the Official Document of the International Military Tribunal, including pages 243, 244, 245, 246, and all but the last paragraph of 247.
THE PRESIDENT: It will be received, but not in evidence.
MR. KING: It will be received for judicial notice?
THE PRESIDENT: For judicial notice.
MR. KING: Yes, thank you.
MR. LAFOLLETTE: Your Honors Please, Mr. King has just offered as judicial notice the last of the development in the Prosecution case, with several reservations I would like to make:
First, we have not finished reading our transcript of the record. We are dividing that between us, reading it more accurately than we have before. We found one or to places where, undoubtedly exhibits have been received in evidence, but the transcript does not show it. We do not want to lose the benefit of those documents. There were cases, so far as I can find, where there was no objections; it was simply a matter of overlooking it in the transcript.
We want our transcript to be correct.
THE PRESIDENT: I think possibly that might have occurred because of this sound system which seems to be impossible.
MR. LAFOLLETTE: I think Your Honor is quite right, and I am sure since the transcript does not show any objections at any time, it is purely an inadvertent admission in the transcript, and not the fault of any one. But to make our record look right, we want to reserve the right to come back and correct them when they are found.
THE PRESIDENT: It may be stated now that every exhibit that has been introduced in evidence has been ruled upon as being in evidence, from my certain knowledge.
MR. LAFOLLETTE: In my mind, that satisfies that request.
Your Honor, the other one is one that may involve only one case, maybe one or two -- I found a case in the transcript, the page of which I do not have with me, where before the Prosecution had introduced its exhibit which consisted of the official initials of the members of the Justice Ministry, in one case a document was admitted on the condition that these after we identified it we could, the initial of the defendant Mettgenberg. As I recall, there may be one or two other such situations. We would only want to have the right to get the exhibit when Counsel and we can agree, make a stipulation as to those facts; if we do not agree, to present some evidence attempting to tie up these signatures subsequently because no harm can be done to the Defense. They have reviewed the documents. It is purely that one question and I do not believe there will be any controversy.
With those two reservations the Prosecution now rests.
THE PRESIDENT: I do not understand how the Prosecution has rested or can rest until this cross-examination of the affiants has taken place.
There was something said in the early stages of this trial that it was possible that some of the affiants might be cross examined after the Defense had begun the case, but there has been no definite ruling on that point, and it is stated now that we desire to have that cross-examination take place before the State finally rests. We have ordered witnesses to be here, and we are assured by the Secretary General that some of them will be here tomorrow morning.
MR. LAFOLLETTE: Of course, the Tribunal has the right to make any ruling they chose. I only state again that the Prosecution, as far as its formal introduction is concerned, rests. We will abide by any order that the Tribunal might make as to whether cross-examination should take place, of course. But, again, the Prosecution rests.
DR. SCHUBERT (For the defendant Oeschey): May it please the Court, this morning before the session, together with my colleague Koessel for the defendant Rothaug, I called on Major Schaefer at the Defense Center. As far as I know, Major Schaefer has been instructed to produce the witnesses for cross-examination. We designated a number of witnesses who, in our view, will be available at any time here in Nurnberg. And, Major Schaefer has taken the necessary steps to produce an adequate number of witnesses tomorrow and on Friday.
MR. LAFOLLETTE: I might say to the Tribunal that the Prosecution requests 24 hours notice of the appearance of these witnesses so that we shall know who will be required to be present at the cross examination.
THE PRESIDENT: That request is refused. That request is denied. This is cross-examination of witnesses, who were introduced by affidavits by the Prosecution. I requested yesterday that the Prosecution call these witnesses and was met with a refusal -
MR. LAFOLLETTE: (Interposing) Your Honor, it was not a refusal, because the ordinance requires -
THE PRESIDENT: (Interposing) I have the floor, if you please, Mr. LaFollette -- I must speak first and you may speak afterwards if you desire.
MR. LAFOLLETTE: (Interposing) I assume -
THE PRESIDENT: (Interposing) Don't interrupt me.
I have requested you, Mr. LaFollette, to have witnesses in Court beginning tomorrow morning and you told me you would have nothing to do with it.
I, therefore, ordered them into Court myself, over my own signature. Now, if the Defense Counsel is ready to proceed with crossexamination, you are not entitled to 24 hours notice. These are your witnesses and will appear for cross-examination as soon as the Defense Counsel can have them here---this afternoon if they can have them here. I will inquire of Dr. Schubert now if he can have witnesses here this afternoon.
If you have something to say now, we will hear you.
MR LAFOLLETTE: Yes, I have something to say. The ruling this Tribunal made, originally, appearing on page 393 to 396 of the transcript, was that an affidavit would be received in evidence, and that thereafter the Defense would be given the opportunity to cross-examine, if the witness was available; the affidavit was not received, on the condition preceding, that if the Prosecution did not produce the witness, the affidavit would be disregarded.
Therefore, I had assumed, under that ruling, that the harden of producing these witnesses was upon the Secretary General ... That while they were affiants, they properly are part of the prosecution's case... that technically they were not witnesses of the prosecution. That being true, I consider that they are witnesses called by the Tribunal for the benefit of the defense - if they are not actually defense witnesses. That is the reason why I made the request that we be given notice, - if not twenty-four hours, then some other notice - as to when these witnesses, who are not prosecution witnesses in the sense that we have used that term, nor are under the ruling the Court made in the case of the Bram affidavit, to which I refer. It is certainly necessary for the prosecution to have some lotice as to when a witness will appear. I assume it will be but a waste of time ... Now, without any disrespect - without having been given an opportunity to state my position fully - I again renew my request that the prosecution be given twenty-four hours notice of any witness that may appear so that we may be adequately prepared to be present, at that cross examination,
THE PRESIDENT: Mr. Lafollette, may I ask you a question?
MR. LAFOLLETTE* Yes, Your Honor.
THE PRESIDENT: Did the secretary general tell you yesterday morning that I had issued an order for the production of witnesses, and assumed you for the addresses of them?
MR. LAFOLLETTE: No, I didn't come here until yesterday afternoon, when I saw your Honor for a few minutes, probably around one--thirty or two o'clock, after I came back from the dentist. Neither myself nor, as I am informed, any member of the prosecution staff, received any such request or any such notice.
DR. SCHUBERT (appearing to address the court)
JUDGE BRAND: Dr. Schubert, as an individual I have observed that you have been exceedingly cooperative. I wonder if you are in a position now, as a matter of courtesy to the prosecution, to tell them who you expect to cross examine tomorrow.
Is that within the possibilities?
DR. SCHUBERT: May it please the Court; I do not remember precisely what witnesses were suggested by Mr. Koessel, and by me for tomorrow. And I do not remember exactly because I had asked my colleague, Mr. Moessel, to suggest as witnesses for tomorrow those who concerned exclusively his client, because in Room 55 two witnesses who are very important will be available to me for interrogation tomorrow; and since it was very difficult for me to obtain a date for the interrogation of those two witnesses, I did not want to cancel that interrogation. Consequently, I only know the names of those witnesses, with certainty whom we jointly suggested for Friday; but it is an easy matter for me to find out the names of tomorrow's witnesses if you will grant me a five-minute interval. Then I shall be able to name the witnesses who have been suggested for tomorrow.
JUDGE BRAND: You would be willing to communicate that to the prosecution....would you not?
DR. SCHUBERT; Naturally. May I make a fundamental remark concerning Mr. Lafollette's statement. The transcript to which Mr. Lafollette referred is not available to me at the moment, but I remember that the ruling of the Court about the producing of those witnesses who have made affidavits, for cross-examination, was to the effect that the witnesses would thereby not become witnesses for the defense, but would remain witnesses of the prosecution. I can't imagine anything else either, because otherwise the right of the defense to cross examine such witnesses would not exist. Consequently, in my view it was the task of the prosecution now to produce these witnesses as they are their own witnesses. Since the technical arrangements have now seen made in such a way that the Secretary General is to produce the witnesses and not the prosecution, it is natural that the prosecution must be informed of the names of the witnesses and cerrainly some technical arrangement on that point must be mate, and will certainly be possible.
I do not believe, however, that the prosecution in this case has a right to demand that the twenty-four hour limit should be upheld too.
JUDGE BRAND: Mr. Schubert, if it should be the case that the legal -- (interruption). The thing that you are chiefly interested in is having the witnesses here for cross examination. You want to preserve your right to treat them as being prosecution witnesses, hero, for cross-examination. I understand that. If that is understood, you don't greatly care who gets them here... do you?
DR. SCHUBERT: No.
JUDGE BRAND: Now, I want to ash you a couple of questions which may be -- may contain implied suggestions -- but they are only intended as questions. It has been discussed, somewhat informally, that there might be cases in which witnesses have ocean, or rather, affidavits have been presented by the prosecution as a part of their case, and in which, after interviewing those witnesses on the part of the defense, the defense might come to the conclusion that they could, with complete fairness to themselves, instead of calling the witness for cross-examination themselves, take a counter affidavit, to be used in the nature of cross-examination. I have heard that suggested. I thought it might merit consideration on the part of defense counsel, because of the fact that if it can fairly be done, it would expedite the trial. One other question that I should like to submit to you for our views, or your consideration: It has also occurred to me as possible that there may be affiants who have signed affidavits for the prosecution, and whom you desire to cross-examine in open court, but whom you also would desire to examine beyond the scope of the affidavit... In other words, to examine them on other matters not included in the affidavit. And my question in that regard is, would it not also expedite the trial, if such cases exist, for the defense to voluntarily postpone the cross-examination until such time as they have the witness in court for the purpose of direct examination, and then combine both the cross, and the additional examination, in the course of your defense.
I suggest those matters for your consideration. My suggestion further is this: That it would not serve any good purpose for any one to first call an affiant for cross-examination, and then release him, and recall him later, as a witness for the defense. That inconvenience to all of us might well be avoided. I am not ashing for any decision, but I am making a suggestion for your consideration.
THE PRESIDENT: Of course, I can't help saying at this time that if, in the course of the period of cross examination of an affiant, the questions go beyond the allegations of the affidavit -- that defense counsel who indulge in the matter of going beyond the allegations of the affidavit would make that particular witness their own witness, and be bound by their answers.
Court No. III, Case No. 3.
DR. SCHUBERT: May it please the Court, concerning the first point which has just been suggested and for which I am grateful, may I state my position and put a question of my own?
We of the defense have discussed and considered the question as to whether it would be possible, in a number of cases, to avoid the cross-examination or to shorten it by having the defense, on its part, obtain an affidavit from the affiant instead of cross-examining him. I also discussed that matter with Mr. Niesley, but it seems that a number of rather difficult questions do arise out of this and these have so far caused us not to adopt that procedure. The following seems to me to be the most difficult problem. In the case of every cross-examination we saw that a number of objections were raised, stating that the cross-examination exceeded the scope of the direct examination. These same objections--
THE PRESIDENT: There seems to be a little difficulty with the electrical transmission, causing a delay of only a moment.
DR. SCHUBERT: Yes, sir.
THE PRESIDENT: You may proceed.
DR. SCHUBERT: May it please the Court, my colleague Dr. Schilf has just told me that yesterday he discussed this matter with the prosecution. When I came to the microphone just now I did not know the result of that discussion. Perhaps it would be better if Dr. Schilf would briefly explain how far these discussions have got.
DR. SCHILF: May it please the Court, may I make a suggestion? Yesterday we discussed these difficult matters with Mr. La Follette in detail, and very amicably, and this is the result of our discussion. So as to be able to ascertain whether an affiant can become a witness for the defense, so as to be able to investigate as to whether an affiant need not be called to the witness stand if we obtain an affidavit from him, and thirdly, in order to be able to examine whether we can waive a cross-examination altogether in order to speed up matters, we need an opportunity to have a conversation with the affiant beforehand.
Court No. III, Case No. 3.
Mr. La Follette has told us that he has no objection to our doing so, but ho has asked us to bring this matter up here in open court so that the Court may be informed and so that a ruling may be given as to whether there are any objections or not.
Naturally, it would speed up matters if we could discuss matters first with the affiants if we could find out whether they have anything essential to say. In that case we could find out whether we could do without the cross-examination, whether we could obtain an affidavit, or whether anything else could be done to speed up proceedings.
I would ask the Tribunal to let us have their view, and, if the Tribunal has no objections, whether we would be allowed to have a brief conversation with the prosecution witnesses who are affiants before they appear in the witness stand here. I understood Mr. La Follette to say that he has no objection, and the question now is whether the Tribunal has any objection.
THE PRESIDENT: Dr. Schilf, maybe we don't fully understand your suggestion. Do you mean by that, that as each witness is called you should have a short period of, say, a few minutes to interview him before he is put on the stand? Or do you mean that you wanted to have time now to go and talk to the witnesses before any witnesses were called? Which is your meaning?
DR. SCHILF: It is difficult to decide that, because that is a technical question. We only wished to obtain the permission of the Tribunal to speak to the witnesses at all at some moment, either before they are called or, if they are called, we want to know whether we may talk to them at the last moment. We cannot see now what course will be taken, because we do not know yet whether we can talk to the witnesses at all.
At this moment we only wish to know whether the Tribunal has any misgivings about the defense questioning prosecution witnesses prior to their appearance in the witness stand, or whether such misgivings do not exist. We cannot tell at the moment what course matters Court No. III, Case No. 3.will take, because we do not know as yet whether these witnesses will be available to us for questioning at all.
JUDGE BRAND: Dr. Schilf, as I understand it, you are not asking for continuance of the trial or postponement of the trial at this time, but merely asking if the Court has any objection to defense counsel, at their convenience and when they can do so, conversing with these affiants in order to determine whether to call them or whether to take an affidavit, or whether to waive cross-examination. Am I understanding you correctly?
DR. SCHILF: Yes.
JUDGE BRAND: And your question is whether the Court objects to that procedure?
DR. SCHILF: Yes.
THE PRESIDENT: Of course the Court does not object to that procedure; no member of the Tribunal has any objection to that. However, the point with me individually--I am speaking for myself now, just as I hope Judge Brand was speaking for himself a while ago. I would like to know whether this trial is going to go forward tomorrow morning or whether it will be postponed a while to permit this examination of witnesses that you would like.
DR. SCHIIF: In that case, I can only speak for myself. Since I do not know what witnesses will appear tomorrow, I believe that until we have at least been told the names of the witnesses we cannot say whether we want to interview them before or not because that concerns each individual defense counsel. I myself have no objection to begin with interviewing and to begin with cross-examination tomorrow. However, I can imagine that one or another of my colleagues might like to interview the witnesses beforehand.
DR. GRUBE: May it please the Count, I should like to say that yesterday I asked Major Schaefer to produce the witness Brem here tomorrow. Brem lives in Schwabach, which is quite close to Nurnberg; there is a bus route and the witness can be here tomorrow without any Court No. III, Case No. 3.difficulty.
THE PRESIDENT: Manifestly, it isn't the duty, I suppose, of the Tribunal to bring in witnesses, but inasmuch as the obligation was placed upon the Tribunal to produce witnesses, I personally signed the order, and that order was concurred in by other members of the Tribunal, to order witnesses to appear tomorrow morning. That is the desire of myself and I am sure of the other members of the Tribunal, to have this trial go forward in an expeditious manner.
And as I say, I am sorry to be put in the position of having to ask for the production of witnesses. Usually, according to all my years of experience, the Tribunal does not order witnesses, the parties order them. However, feeling that it was necessary for me to order them in order for the trial to go forward, I did so. Personally, I would like to see the trial go forward in an expeditious manner. If, however, it is necessary for the Tribunal to specify certain particular witnesses to appear at any particular time, I don't feel that we should be a party to that. I hope we have not reached that point.
DR. SCHUBERT: May it please the Court, I should like to suggest that the Tribunal now go into a short recess, and that during that recess, I find out what witnesses will be here tomorrow and on Friday.
THE PRESIDENT: How long a period would you need for that interview?
DR. SCHUBERT: Five minutes.
THE PRESIDENT: Well, we will give you 15 minutes.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session,
MR. LA FOLLETTE: If the Tribunal please, it occurs to me that we might possibly make some progress if I read the original ruling of the Tribunal on this matter.
THE PRESIDENT: Mr. La Follette, I don't think anything would be gained by reading something that might have been said in the early stages of this trial. I think there were some suggestions made that if certain witnesses were not reached during the period when the Prosecution was going on, that they might be examined after the defense had started, But I don't believe that is the issue now. Whatever the Tribunal may have then said, it is the wish of the Tribunal at this time that these witnesses, or as many of them as can be reached at this time, should be cross examined by defense counsel.
It may be that some of them may be some stragglers among them who will not be found easily, and yet defense counsel would be entitled to cross examine them. It may very well be that that will be permitted after the defense has begun, but that isn't the wish of the Tribunal. It is better to have them examined as a part of the Prosecution's case, if possible -- if easily possible.
Now let me make one or two things clear that I am afraid maybe defense counsel have the wrong impression. There is no disposition on the part of the Tribunal or any member of the Tribunal to interfere with defense counsel talking to these witnesses before they are produced. No objection to that. The only question is as to when they will do that so as not to interfere with the immediate continuous progress of the trial. Now, that is one thing, and the other is that we don't recognize the 24hour rule as applying to the production of witnesses for cross examination It may be that what I have said might be misconstrued or misunderstood We are not asking that the witnesses be cross examined at all.