Q You reported that during your activity with Rothaug, you had to present drafts of sentences which Rothaug sometimes changed -- concerning their structure, the expressions. Do you mean to say that in cases of such corrections the facts were changed?
A No, I wouldn't say that.
Q You also speak about the Eisenhofer case. Is it possible that in the Eisenhofer case, the expert in the main trial, as well as in his written opinion, considered the defendant fully responsible for his act, and that only when the sentence was pronounced, Paragraph 51, Section II was put in by mistake?
A Well, that possibly exists; I entered my notes in the little book, but these little books, the journal of the sessions, were burned when my apartment was burned out so that I am can not state anything precisely, but the possibility exists.
Q In the cases of Poles, with which you were connected, were you of the opinion that these Poles worked in Germany voluntarily?
A Indeed, counsel, I was of the opinion that the Poles worked in Germany voluntarily for a .....
MR. WOOLEYHAN: If the Court please, I object to the question on the ground that it asks for an opinion of the witness, and to which no foundation has been laid, and he is not qualified to testify unless it is a matter of common knowledge.
TEE PRESIDENT: Objection sustained.
DR. KOESSL: Then, I have no further questions.
EXAMINATION BY DR. SCHUBERT: (Attorney for Defendant Oeschey.)May it please the Court, I am referring to the affidavit in Document Book III-I, NG-635, Exhibit No. 235.
THE PRESIDENT: Does any affidavit of this witness appear at that place?
DR. SCHUBERT: The affidavit of the witness Pfaff -- Dr. Theodor Pfaff -- appears on page 93 of the English document book.
Q Witness, during your activity with the Special Court you also worked with the defendant Oeschey.
A Yes. That is correct.
Q Until what date were you with the Special Court?
A I was with the Special Court until the end of October, 1944, and I was drafted -- inducted in November 1944 into the army.
Q And what was your position at the Special Court?
A I was associate judge at the Special Court, and also further appointed deputy presiding judge; that was primarily for cases of less importance.
Q During the period from the 1st October, 1943, who was the presiding judge?
A October 1943 -- I think that Oeschey was presiding judge.
Q Oeschey was -- and who was the first deputy?
A Ferber.
Q And you were the second deputy?
A Well, in my case I was only another deputy -- it was only said a further deputy; another deputy; they didn't say second deputy.
Q Witness, during the period before Oeschey became permanent presiding judge, and afterwards, you frequently were associate judge in special sessions?
A Yes.
Q Could you note at any time that in verdicts on cases with which Oeschey dealt, different facts were stated than those which according to your opinion evolved from the main trial?
A You mean, counsel, that different facts were stated in the sentence than had been established in the main trial?
Q Yes.
A No, I can't remember that.
Q Were the sessions with Oeschey presiding judge, were they conducted thoroughly and tried to establish the main points?
A Yes.
Q Dr. Pfaff, then in your affidavit you discussed the treatment of foreigners, and first you speak about the Wdowen and Kaminska cases.
A Yes, I have a recollection of it. Of course that was quite a number of years ago.
Q Yes, I understand that. Still, in your description of the case you stated that Kaminska had a struggle with a soldier -- exchanged blows with a soldier; and then you mentioned the incident of her throwing a stone. I just want to ask you if you can recall it -that after the blows Kaminska took an axe and raised it up; can you remember that?
A It is possible, but precisely I cannot remember it any more, but it should be possible to find that from the files.
And in the case of Wdowen you only described the facts concerning the efforts made when Kaminska was arrested to free her by holding on to her; do you still remember that Wdowen also took part in the struggle with the soldier?
AAt the moment I can't remember that.
Q At the time I presume you had to deal every now and then with cases of Poles, you probably got an impression of the jurisdiction of the Reich Supreme Court in cases of Poles.
A Yes.
Q Would you call that jurisdiction very severe?
A Yes, the jurisdiction of the Reich Supreme Court was very severe; that can be seen from the sentences which were published; also from the judges' letters, and from other decisions which were published.
Q Do you still remember that the Prosecution in this case wanted a defense counsel to the be appointed?
A That I cannot remember any more.
Q Then, I want to refer to the Michael Schmidt case; if I may remind you it is the man with the 229 fly-papers. Dr. Pfaff, you criticized the verdict in your affidavit since the value of the stolen goods was so little. I should like to ask you, can you remember that at that time the jurisdiction of the highest courts was to the effect that it was less a matter of value of the stolen goods, but the personality -- the character -- of the culprit, was what counted?
A I believe I can remember; of course quite a number of years have passed, but I believe that the jurisdiction of the Reich Supreme Court became more and more severe, and did consider the personality, the character, of the culprit more and more, but I do not know individual decisions any more -- too many years have passed since, and I have been a prisoner of war.
Q In the case of Irmgard Hoffmann there was an examination for the mental capacity of the defendant after she had already been sentenced under Oeschey, as presiding judge, the Special Court rejected the plea for re-trial by the defense counsel, and now I come to the point about which I want to ask you: Then, against that decision which rejected the plea for re-trial, the defense counsel of Irmgard Hoffmann immediately launched a complaint, and upon that complaint Oeschey did not come to any decision of the court, but only pointed out to the defense counsel that that immediate complaint was inadmissible.
MR. WOOLEYHAN: If the Court please, I object to this method of examination; I object to the reading from Counsel's notes certain facts he wants to appear in the record. The witness has not testified to these things; let him ask the witness and have the witness testify, but not read from whatever he has prepared here.
THE PRESIDENT: I thought he was reading from the affidavit.
MR. WOOLEYHAN: No. I was following the affidavit, and he is not reading from the affidavit.
THE PRESIDENT: Objection overruled.
DR. SCHUBERT: May it please the Tribunal, may I state my point briefly. I could have read from the affidavit, I only wanted to simplify the matter, and, therefore, I have summarized from the affidavit those points which are important, in order to be able to put that question to the witness which refers to his affidavit, I merely intended to shorten the procedure, simplify matters.
THE PRESIDENT: Proceed with the question.
Q Dr. Pfaff, you have criticized, in your affidavit, the fact that Oeschey without coming to a decision of the Special Court, himself rejected the immediate appeal. Please do not answer yet. I should like to put the file to you. One moment. Would you care to read that notation.
A The notation reads: Roman numeral I - Complaint is inadmissible, will not be admitted. Roman numeral II -
MR. WOOLEYHAN: One moment witness. Your Honors, I object to these questions and answers. I have no notion what the witness holds in his hand. It has not been identified. No foundation has been laid. I suggest some foundation be laid from which he is now reading.
THE PRESIDENT: We should, of course, know what this document is from which he is reading.
DR. SCHUBERT: May it please the Tribunal, it is the original file obtained -- the case "Irmgard. Hoffman", which upon my request, I received from the Prosecution, from the office of the Prosecution.
MR. WOOLEYHAN: That file, your Honors, is a matter of evidence and argument on the part of the defense or possibly by the testimony of the witness.
THE PRESIDENT: I do not have the advantage of having this affidavit before me. I do not have this book on the bench, but I assume that this is the case he referred to in his affidavit, is it not?
MR. WOOLEYHAN: Yes.
THE PRESIDENT: Let the witness state whether this is the file in the case Counsel in now inquiring about; then we will have better knowledge as to whether it is competent or not.
Q Witness, are these the files about the case of which you have spoken in the affidavit?
A Yes, the files of the case to which I referred.
Q May I ask you to return them to me.
(The file was returned to Dr. Schubert.)
Witness, you stated Oeschey had rejected the immediate appeal. Is that what you have read -- a formal rejection of the appeal?
A I was of the opinion that the appeal should have gone to the Penal Chamber - "Strafsenat". The Penal Chamber would have to decide it.
Q If I understood you correctly, your criticism in your affidavit, was based upon your assumption that Oeschey, should not have decided that alone, but should have brought about a decision of the District Court of Appeals?
A The Penal Chamber or the District Court of Appeals, in my mind should have had to decide that.
Q Dr. Pfaff, do you know that against decisions of the Special Court, generally a legal remedy was not admissible?
A True, against the decisions of the Special Court, no appeal was possible, but I thought here we were confronted with a retrial, the reopening of a trial, which would have been a separate procedure, and that is why, in my opinion, the appeal should have been decided by the Penal Chamber.
Q Are you convinced now that the matter did not have to be forwarded to the Penal Chamber?
A Well, I am not convinced because the matter of jurisdiction of competence, has to be clarified. Maybe there are some decisions on that problem to be found somewhere.
Q Dr. Pfaff, you also mentioned a case "Koch", where Koch, and that is what you are objecting to, was sentenced to death, although he had caused only loss of money. Can you confirm that the jurisdiction of the Reich Supreme Court in later days also considered acts which caused only the loss of money as meriting the death penalty?
A I have said already that the jurisdiction of the Reich Supreme Court became more and more severe.
Q On this point also?
A Yes, generally speaking, considering the evaluation of criminal acts by habitual criminals.
Q Witness, in political cases, in so-called "Heimtuecke cases", cases of malicious intent and malicious acts, were you also associate judge in Oeschey's cases?
A Yes.
Q Do you have any knowledge as to how he treated those cases? Was he more severe or did he try to be more lenient in certain cases?
A I remember one or two cases where people were indicted whose acts could have been evaluated on the basis of the undermining of military strenght, and that in these cases, Oeschey said we are not going to transfer that to the People's Court because then, he might get many years of a penitentiary sentence. I remember that in one or two cases, he wanted to see these cases treated under the paragraph of malicious acts and did not want to have these cases transferred to the People's Court.
DR. SCHUBERT: I have no further questions.
THE PRESIDENT: Any re-direct examination?
MR. WOOLEYHAN: No, your Honor, we have not.
THE PRESIDENT: This witness may be excused.
(The witness was thereupon excused and withdrew from the courtroom.)
Kurt Hofmann, a witness, took the stand and testified as follows:
BY JUDGE BLAIR:
Q Hold up your right hand and repeat after me this oath.
I swear by God, the Almight and Omniscient, that I will speak the pure truth and win withhold and add nothing.
(The witness repeated the oath.)
JUDGE BLAIR: You may sit down.
EXAMINATION BY DR. KOESSL: (For defendant Rothaug) May it please the Tribunal, the witness Kurt Hofmann is to be heard about his affidavit which is contained in document book III I, it is document NG 654, exhibit 234.
Q Witness, will you please give your full name and your occupation?
A Kurt Hofmann; Public Prosecutor, retired.
Q How long were you with the Special Court as Public Prosecutor when Rothaug was presiding Judge?
A I was Public Prosecutor from the 1st of December 1940 until the end of October 1942; that is about two years.
Q It can be seen from your affidavit that you criticized in particular the extent of punishment under Rothaug?
A Yes.
Q One moment, please. Did it occur that Rothaug during sessions when you were the Prosecutor, distorted the facts in order to be able to justify the application of a more sever law or more severe paragraph of the law?
A No, I did not make experiences of that kind. During the sessions when I acted as Prosecutor, I never had an opportunity to find out that he had any intentions to establish incorrect facts in order to be able to apply a more severe law.
DR. KOESSL: Thank you. I have no further questions from the witness.
DR. SCHUBERT: (for the defendant Oeschey): May it please the Court, I am going to deal with the same document and I would like to put some questions concerning this document to the witness. Exhibit 234.
Q Dr. Hofmann, until when were you with the Special Court in Nurnberg?
AAs I have stated already, I was Prosecutor at the Special Court at Nurnberg, until the end of October 1942.
Q Then you did not personally experience the time when Oeschey became presiding judge of the Special Court.
A No, I was not there then.
Q Is it accurate to say that during the period when you were at the Special Court the sessions in individual cases were assigned to Oeschey by the then presiding judge, Rothaug?
A That is correct.
Q Did you attend many sessions under Oeschey?
A Not too many, because the number of cases in the beginning was not so high; the number of sessions under Oeschey may have been somewhat less than those under Rothaug, but I could not make any precise statements in this respect.
Q Now, concerning the defendant Oeschey - I also want to ask you whether it appeared to Joe Oeschey's intention to make the facts appear as they truly were, and to investigate the true facts in the main trial?
A Yes, that I can say. Oeschey, as well as Rothaug, attempted to investigate the true facts in the main trial and have not made any attempts which would have led to the application of more severe laws by intentionally changing the impression of the facts.
Q In your affidavit, therefore, you did not intend to express that in the two cases width which you deal later - Hahn and Pritschet - the defendant Oeschey tried to defeat the purposes of the law?
A That, I have not stated in my affidavit.
DR. SCHUBERT: I have no further questions.
THE PRESIDENT: Has the prosecution any redirect examination?
MR. WOOLEYHAN: No, your Honor.
THE PRESIDENT: This witness may be excused.
(The witness was excused)
DR. BEHLING (for the defendant Schlegelberger): It is now the witness Markl.
HERMANN MARKL, a witness, took the stand and testified as follows:
JUDGE BRAND: Will you raise your right hand and repeat after me the following oath:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath)
JUDGE BRAND: You may be seated.
DR. BEHLING: I should like to question the witness about the affidavit of 23 January 1947, NG-681, Exhibit 154, from Document Book 3C. The affidavit is in that Book on page 71 in the German text, and 73 in the English text.
EXAMINATION BY DR. BEHLING:
Q Witness, will you please first tell the Court your name and your personal data?
A Markl, Hermann, born on the 8th of June 1909, at Radeldorf. Prosecutor. Retired. I live now at Argelsried, No. 19. Married.
Q In your affidavit, on page 75 of the German Document Book, you mention that you had reported concerning the case Katzenberger to the Ministry, and that you received the answer that if Rothaug intended to proceed against Katzenberger as described that would be approved. May I ask you, witness.... When did you report, and to whom did you report?
A The case Katzenberger, from the outset reports were made because it was one of those cases where an obligation, a duty, to report existed. The first indictment which was already sent to the Penal Chamber had to be submitted.
It went to the General Public Prosecutor who, on his part, as was customary, forwarded the reports to the Ministry. In the case Katzenberger I also reported continuously about the case as it proceeded. Also the fact that a new indictment was filed based on the decree against Public Enemies. Then the indictment against Seiler for perjury, the connection - the combination - of the proceedings, the intended demand for penalty on the part of the prosecution, I reported also about that.
Q If I understand you correctly, therefore, you reported to the General Public Prosecutor?
A Yes.
Q Not to the Ministry?
A Not immediately to the Ministry.
Q Do you know whether these reports were forwarded to the Ministry, and from what are you able to state it?
A I state it from tho fact that I have a recollection that before the main trial a decree came from the Ministry via the General Public Prosecutor by which tho way the case was handled was approved, or it wqs expressed that there would be no objections with the way in which this case was dealt with....it was in about that form, but I do n t have a precise recollection. I consider it, however, quite impossible that the case would have been dealt with in the intended manner unless there had been a decree of that kind.
Q Do you remember who may have signed that decree - that is to say, who would have been the man in the Ministry to deal with that?
A That I can no longer remember.
Q At any rate you did not have any direct negotiations with the Ministry?
A Not in this case I cannot remember -- occasionally there was a telephone call -- but I have no precise recollection of this opinion.
DR. BEHLING: I have no further questions.
BY DR. KOESSL (for defendant Rothaug):
Q Witness, in your affidavit you discuss the fact that Rothaug made use of his political connections.
Could you give us any facts, any concrete facts, to support that statement?
A Details are not known to me. It is rather a personal evaluation which formed itself in my mind in the course of the years working with Rothaug.
Q You mentioned, furthermore, that the associate judges were mere puppets, and also the public prosecutors were quite, in Rothaug's hands, under Rothaug's command. Do you mean to express that political reasons, or the dictatorial manner of Rothaug, were the basis for that?
A I believe that essentially responsible for that fact was that Rothaug's mental capacities and his superiority over most of his colleagues and of the prosecutors worked in the direction that one submitted to his will -- one was rather inclined to assume that his opinions were correct because generally one considered him the wiser, and that assumption was confirmed by the fact that occasionally the higher authorities of jurisdiction proved the points of view that Rothaug had assumed.
Q Did Rothaug permit criticism against his decisions?
A When facts were established during the sessions Rothaug was very conscientious, and if it was a case of discussing whether or not a certain fact had been established - then he accepted objections and corrections, but it was very difficult to refute his argument.
Q Do you recall any cases where Rothaug, in the evaluation of evidence, arrived at a result which was more favorable for the defendant than the opinion of his assistants in this particular case?
A Certainly, I can remember cases of that kind where he acquitted where I would have been of the opinion that the defendant should have been convicted. One case of this kind - I think it was Semlitzschka -- was the case of a concentration camp inmate at Flossenbuerg who had killed another inmate in the camp. I, from the investigation, gained the impression that there was sufficient suspicion of a violent crime against Semlitzschka. In the course of the trial this evidence was confirmed and accordingly I intended to demand that Semlitzschka be sentenced to death.
To my greatest surprise Rothaug - I believe the reporting judge was Oeschey in that case - at the end of the presentation of evidence convinced me that legitimate defense was not quite excluded and that therefore the nan had to be acquitted. Then I demanded acquittal and he was acquitted in fact.
Q. Was there any objection from a political point of view against that sentence?
A. It was not a question of a political sentence, but I know that the camp management expected the death sentence, just as I did, and was greatly surprised, if I may say so, about the result.
Q. Do you remember, in cases against Poles, whether the PoJe s stated that they had been forced to come into Germany.
I cannot remember that that objection had been made by any Polish defendant. The defendants were mostly released prisoners of war or, as has been explained, voluntary recruits.
Q. Did you see a directive wherein the Reich Ministry of Justice wrote, and I quote from your affidavit: "If Rothaug wants the death sentence, the prosecutor has to give in"?
A. In this particular form, no directive came either from the Ministry or from the General Public Prosecutor to us, but that was the essence in cases where the Court gave the understanding that a death sentence would be pronounced and that the prosecutor had to demand the death sentence. That occurred frequently.
Q. You say no if the court considered the death sentence appropriate." Then you don't refer to Rothaug as an individual, do you?
A. That is correct, but in the last analysis it amounted to the same because Rothaug was the most essential factor in the legal evaluation of the extent of punishment . That was quite accepted, and that the initiative was on his side was beyond doubts
Q. Did Rothaug restrict or limit the defense counsel when they made applications which were admissible and justifiable?
If admissible and justifiable applications were made, then Rothaug admitted them. I know from my experience that there were several defense counsel who had an attitude at the Special Court before Rothaug, which I greatly appreciated, because they knew how to put the applications in such a manner that they could not be attacked but had to be admitted. If , however, questions or applications or statements on the part of defense counsel gave the least cause for action against him, then Rothaug immediately interfered with great severity; he applied a very strict rule.
Whether he did that with the intention and conscious of the fact that he would shake the defense counsel, or whether he did it based on the principle of severity, on the awareness of his power and his legal knowledge, basing himself on the assumption that it is not important to have these things said, that I could not say.
Q. You have stated that Rothaug had a rather bad attitude against witnesses for the defense. Did you mean to say by that that Rothaug tried to falsify the facts and to bring out statements which were not in accordance with the truth?
A. That is not what I want to say. As I have already said, there were even acquittals under Rothaug where something could not be proven.
Q. New we want to refer to the case Katzenberger. Why did you file your indictment in the case Katzenberger in the Penal Chamber although Katzenberger, as well as Seiler, denied having had sexual intercourse as they were charged?
A. According to the jurisdiction of the Reich Supreme Court, suspicion of race defilement on the basis of the Law for the protection of German Blood was to be considered if there were actions which made it appear highly suspicious. It was not necessary to prove actual sexual intercourse; it was sufficient if the person had committed actions which came near to sexual intercourse.
Q. Who was the presiding judge of the Penal Chamber where the case Katzenberger was dealt with at first?
A. If I remember correctly, it was Dr. Ferber.
Q. Who informed Rothaug about the case Katzenberger?
A. As to how Rothaug was informed about the case Katzenberger I do not know; at any rate, I did not tell him about it. When the case was brought to the Special Court I was still wondering who it night have been who had put Rothaug on that trace.
Q. In your affidavit you mention the fact that you did not consider admissible the application of the Decree Against Public Enemies and the indictment for perjury. You mention both of these. What did you want to say by that?
A. I intended to say that there was a considerable amount of suspicion, but in consideration of the fact thatthere were no actual witnesses, the problem of their evidence was a very critical one and very difficult.
Q. Now I find here a sentence: "This fantastic distortion of the situation excluded an objective view of the case." Are these your words, the way you expressed yourself?
A. These are not my words.
A. Did the combination, as you say, or the connection of the perjury case with the case against Katzenberger, exclude any possibility to call Seiler as a witness?
A. That is hard to say. That is a question of procedure? according to the rules of the penal code of procedure, cases which have been connected can still be separated, with the result that the defendant in the other case, after the separation, can still be heard as a witness. A separation of that kind, however, did not occur in the case Katzenberger.
Q. Did the defense make the motion to separate the two cases in order to make it possible to call Seiler as a witness?
A. I do not have the faintest recollection of that. I think I would have had to know about that if it had occurred.
Q. Was the re any report made to the Reich Ministry of Justice even before the main trial. and what was the extent of that report?
A. I have already answered Dr. Behling concerning that question. Is it necessary for me to repeat my statement?
Q. Would you please briefly repeat the main points?
A. In the case of Katzenberger I made current reports, beginning with the indictment which was filed with the Penal Chamber. I reported about all essential facts and occurrences of the procedure.
That also included the indictment as it was filed with the Penal Chamber and returned from them, the fact that additional investigations were made to clarify the question as to whether the Decree Against Public Enemies could be applied, the fact that the indictment was filed with the Special Court, the fact that the indictment was filed against Seiler for perjury and a combination of this case with the case against Katzenberger, and also the sentence to be demanded by the prosecution. All that was done before the main trial. Unless it was done in several reports, I believe that one report was made when the second indictment was filed with the Special Court.
Q Did the directive by the Ministry specify that they would approve it if Rothaug desired it?
A I have also answered that question. In that form, at least in a written form, no directive was received by us from the Ministry or the general public prosecutor.
Q The explanations which you have made with regard to the previous question also apply to the case Katzenberger?
A Yes, I think I gave these explanations concerning the case Katzenberger.
Q In your affidavit you mentioned that during the session itself no evidence was produced which could have proved there was sexual intercourse between the two defendants. What, precisely, did you mean to say by that?
A I wanted to point out the difficulty of producing evidence, because as I have already stated, actual witnesses, were not at the disposal, and the sentencing had to be based on circumstantial evidence.
Q You mention a National Socialist witness for the Prosecution who made quite unimportant statements during the session. These quite unimportant statements, were they used in the opinion?
A No. That can be seen from the opinion as it is written out.
THE PRESIDENT: We will take the usual recess at this time.
(A recess was taken)
MR. LA FOLLETTE: If Your Honors please, if I may interrupt this cross examination for just a minute. Two matters have arisen. One of them I understand: is that the affiant witness for cross-examination -this is only this is only what I have been advised, it may not be correct -and that he has given a counter-affidavit instead. If that is true, and Dr. Brieger can tell us in a minute, I very respectfully petition the Court now to make a ruling that if any witness is brought here for the purpose of cross-examination, that then he must be heard rather than to give a counter-affidavit upon which the prosecution in rebuttal perhaps may want to interrogate him. If a witness cannot be brought here, if we can't find him or get him down here because of transportation? then it may well develop that the Tribunal will, of necessity, in fairness to the defense authorize counter-affidavits. But it just occurs to me that if the witness actually, particularly from a distant place like Stuttgart, physically appears, that a counter affidavit should not be later used. If the defense wishes to dismiss the witness altogether and do not desire to cross-examine him, or course that is matter within their discretion.
However, again referring to the witness Wizigmann, in this particular instance, since the witness is here, I call the Tribunal's attention to Prosecution's Exhibit No. 465, and the -
THE PRESIDENT: Can you tell us what book that that may be in?
MR. LA FOLLETTE: It would be to Supplement IIIB, Your Honor, the last exhibit. I don't care to read from the affidavit, and I don't think for my purposes at present, the Tribunal need it. I only want to say this: that on the 13th of May, as appears on Page 3277 of the record, as Document 1253, the prosecution offered the affidavit of Wizigmann and also a copy of the indictment in the case of Skoran, a Pole, which the affiant discussed in his affidavit. Dr. Brieger objected on various grounds; one of them that it was not a captured document and that the indictment was not sufficiently identified in the affidavit. The following day, as appears on Page 3283 and 3303 of the transcript, the Court eventually ruled that the Prosecution had not sufficiently identified the indictment and for that reason that that part of the exhibit which consisted of the affidavit would be admitted and that the indictment would not be; but the Tribunal further stated that if the prosecution identified the indictment, it would reserve its ruling.
In any event, in this case, this man Wizigmann being here? I would like to have the Tribunal order him called so that I may attempt to identify this indictment -- that part of the exhibit which could not be admitted? but which the Tribunal said we might use if we could identify it.
There are two points then with reference to this man. One, that if he is here, I do not believe it is in the interest of any sort of an expeditious trial for the defense to take a counter-affidavit from him. I don't know that Dr. Brieger has done that; I just heard that. He should be called if he is here, and any other witness in the same condition. Second, as a special case, since this witness is here, I ask the Tribunal to order him held and called so that we may attempt to identify this indictment under the previous ruling of the Tribunal.
Now, there is one other general matter. In any event? these affiants are prosecution witnesses. All of the rulings of the Tribunal have been to that effect. They are being produced through the facilities of the Secretary-General. Be are advised that they are in the Defense Center? and that no representatives of the prosecution are being permitted to talk to them. Now, a week ago when the proceedings of this character were being contemplated, I stated to a committee of defense counsel that I had no objection whatsoever to their talking to these witnesses. They very fairly came to me and said, "Be won't talk to them unless you think it's fair and unless the Court rules so." And I stated? "Well? certainly, you may talk to them." I also stated that I would reserve the right to talk to them also since they were our affiants. On behalf of the prosecution, I respectfully petition this Tribunal to make an order that we may talk to affiants, who have given affidavits to the prosecution, while they are here, and that the Defense Center be so advised.
JUDGE BRAND: Who has purported to prevent you from talking to them?