I also know that at trials which were held outside Nurnberg, he suffered repeatedly from what appeared to be violent toothache. Once, as far as I remember, I even discussed with Amtsgerichtsrat Dr. Pfaff that latter point, and he told me that Rothaug, on principle, did not go to the dentist but, as he said, preferred to let his teeth rot as they were.
I was of the opinion that those circumstances represented at least a important cause for Rothaug's attitude at the trials. Whether those circumstance's were the sole cause, that I can, of course, not I judge, nor can I judge whether they were the main causes, but I myself held those circumstances partly responsible because I can also remember that Rothaug, when he had taken this stomach powder was particularly bad tempered and when he was evidently feeling well, he also used a different tone at the trials.
Q As to Rothaug's reasons which you mention for his political statements at the trial, did they only serve the idea of a referant or were they also for the purposes of justifying the extent of the penalty?
A Would you read the sentence from my statement please?
Q In your statement you say: "His custom at the trial to hold political, philosophical, or ideological lectures, he explained to me personally once by saying that only in that way could the sentence be made comprehensible to the audience." Therefore, I want to ask you whether that justification and his political statements only served as the idea of a deterrent, or only served to justify his severe standards or whether it served both purposes, and whether Rothaug, at the discussion at that time gave any explanations.
A I discussed that point with Rothaug when I was transferred to the prosecution at the Special Court. Rothaug told me at that time, that in his opinion it was the duty of the prosecutor, concerning the demand for punishment, not only to speak in a few meaningless sentences, but to give sensible reasons, and that at trials before the Special Court in particular it was necessary for the prosecutor also to incorporate political points of new in his opening statement.
He told me at the time, as a reason, that it was the task of the presiding judge, as well as that of the prosecutor, concerning the severe sentences which were necessary during war-time, to make these more understandable to the general public. Evidently it was this the opinion of Rothaug -- in any case I concluded that from our conversation--that as to the general public, that is, the audience in the courtrooms it was necessary to make the comparatively severe sentences understandable and comprehensible to them. I believe, therefore, that the political and ideological lectures by Rothaug during the examination of the defendant, while evidence was submitted and while he read the opinion, I believe that those lectures, above all, served the purpose of enlightening the general public. That they may, in addition, also have served the purpose of a deterrent; that is altogether possible.
Q According to your statements, you were the person who, in the Lopata case, acted as prosecutor.
A Yes.
Q In your affidavit you mention the following sentence: "That the prosecution did ask for the death sentence, in my recollection, is due to the fact that Dr. Rothaug, after evidence has been submitted, told me that the court would pass the death sentence."
I have the original files of the Special Court at Nurnberg before me, the files of the Lopata case. I would like to show you a copy of the indictment on which there is a note according to which it was intended to demand a term of six years in a severe penal camp. The note "six years in a severe penal camp" has been crossed out in indelible pencil, and has been replaced by the words "death sentence". I want to ask you, do you recognize the handwritting in which the note "death sentenceQ was made? (Document submitted to witness)
A I know the handwriting. It is the handwriting of Dr. Dorfmueller, prosecutor at that time.
Q Since you have seen the original document do you maintain the view that the suggestion to ask for the death sentence was made by Rothaug after evidence had been submitted or during the trial and made to you, or can you here explain another possibility or probability?
A In my statements regarding the Lopata case in my affidavit I made a mistake, and that insofar as I assumed that the prosecution at the beginning of the trial still intended to ask merely for a prison term. The office files which have been shown to me reveal that the Prosecution already prior to the opening of the trial must have intended to ask for the death sentence. Originally, as is also evident from the office files, a sentence of six years in a severe penal camp had been intended. What circumstances caused the original demand being replaced by the demand for the death sentence, I do not know, because I was not the expert on that case.
Q What would you in such a case consider the regular reason for the change in the prosecutions intentions?
A There are several explanations for that, In very many, or in many cases, the expert on the case first of all without contact with the senior prosecutor suggested the sentence and the indictment together with the copy of the indictment and the sentence which it was intended to demand was submitted to the senior prosecutor and then the senior prosecutor decided that the sentence which the expert had demanded or suggested was either too severe or too lenient. Then the expert crossed out the sentence which had been originally demanded and wrote the sentence which the senior prosecutor demanded next to it. It is possible, however, that the expert called up the prosecutor general and said that it appeared to him that the sentence which was intended was too lenient and that a more severe sentence was to be demanded. Then the original demand was also replaced by a new demand for a different sentence. In such cases, as a rule, however, a written notation was added to the files to the effect that the prosecutor general had given instructions.
A third possibility that an original demand for a sentence was changed might be that the Reich Ministry of Justice gave different instructions. In those cases the office files should contain an ordinance by the Reich Ministry of Justice. As far as I know, these office files in the Lopata case contained neither an ordinance by the prosecutor general nor by the Reich ministry of Justice. There is a fourth possibility which I, personally, have never experience, but which no doubt may have occurred, that the presiding judge of the Special Court, contacted the expert or the senior prosecutor to discuss the matter and to inquire what sentence the prosecution intended to demand in the case. It is also possible that the judge in question then convinced either the senior prosecutor of his own opinion or that the presiding judge talked to the expert with the prosecutor and that he thus convinced the prosecutor via the expert. What happened in this particular case I repeat I cannot tell.
Q Did it happen that instructions from the higher authorities, be it from the Reich Ministry of Justice or from the Prosecutor General were passed on by telephone?
A That did happen.
Q Can you still remember that in the Lopata case at the trial it was shown that Lopata had attacked his master with a pitchfork and that thus a circumstance had been revealed which was of a very grave nature and which, in the evaluation of the facts by the Reich Supreme Court, had not been known.
A I cannot remember the trial of the Lopata case. However, I have seen from the files, in particular from the statement by the presiding judge concerning the clemency question, that as the death sentence was passed, obviously the incident of the threatened attack with the pitchfork on the man's master did play a part. But what part it played when the evidence was submitted, I cannot say, because I do not remember at all.
Q During your term of office were you able to observe what caused Rothaug's severity in the case of crimes committed by Poles? Was it a result of hatred or did Rothaug state definite reasons for his severity?
A I know that Rothaug in the case of talking to the prosecutors as well as in the opinions always expressed the point, any way as far as the meaning is concerned, he expressed the point that the large number of foreigners in the territory of the old Reich were numbering millions and that they constituted a particular danger for the general public safety and that for those reasons it was necessary to apply particular severity to those foreigners. Whether Rothaug in addition hated these foreigners personally I do not know because he never expressed anything of that typo to me.
Q In connection with that severity towards foreigners, you make a remark in your affidavit to the effect that Rothaug was particularly severe toward foreigners and in the Lopata case exceeded by far the sound sentiment of the people.
Q This opinion concerning the sound sentiment of the people in this formulation was that your view?
A I cannot say that for certain.
Q In discussing the Eisenhofer case and the Fuchs case you refer to Article 51, Section 2, of the German Penal Code. I would like to ask you, did the position of the Special Court concerning the application of Paragraph 51, Section 2, was it in accordance with the jurisdiction of the Reich Supreme Court?
AArticle 51, 2, as far as I remember, only mentions the possibility of a more lenient sentence. According to the text of the law the Court is thus not compelled to pass a more lenient sentence if Article 51, Section 2, applies. At the Special Court Nuremberg generally the point of view was taken that with a special type of criminals as, for example habitual criminals and similar persons, the existence of Article 51, 2, was not only not a reason to pass a more lenient sentence but that on the contrary in the case of such criminals it was necessary to view the lesser responsibility as an additional reason for a more severe sentence, because such a person constituted a greater danger for the general public than a human being who mentally and morally was completely normal.
As far as I know, the Reich Supreme Court approved of that jurisdiction, but I am not able to cite individual sentences to that effect.
Q. My last question to you is: Can the answers that you have given be considered a clarification and a supplement to your affidavit?
A. My affidavit, as is revealed by my statements here today, I maintain here on all essential points with one correction, that is the Lopata case; I have to admit today that there I made a mistake because the prosecution already at the beginning of the trial intended to ask the death sentence; as to the rest, the statements which I have made today are naturally a supplement to my affidavit.
DR. KOESSL: I have no further questions.
RE-DIRECT EXAMINATION BY MR. KING:
Q. Witness, you have referred to an inadvertent error which you made in executing the affidavit to which you referred in your testimony here today. I believe your statement and explanation of this was, as you now recognize, that the prosecution intended from the beginning to ask for the death sentence in this case; and you arrived at that conclusion from nothing in the case record that a handwritten change has been made, and that the original sentence of six years has been crossed out and substituted by the recommendation of a death sentence. My question is very simple. How do you know, by what process do you now arrive at the conclusion that the change was made at the beginning of the trial and not in the middle or at the end of the trial. I did not get in mind, at any rate, the reasons by which you arrived at the fact that the change was made before the trial began.
A. I do not quite understand the question. May I answer it like this, in the sense in which I understand it.
In virtue of the files, that is to say, in virtue of the fact that not I, as prosecutor, but already Prosecutor Dorfmueller, as the expert, made the alteration; that fact compels me to draw the conclusion that already at the opening of the trial the notation "death sentence" must have been entered on the indictment, for at the latest, from the beginning of the trial, the expert Dorfmueller had not been able to get a hold of the office files because I as the prosecutor at the session had them on my prosecutor's desk. Therefore, the change in the sentence which was intended must have been carried out before the opening of the trial; when it was made, I cannot say without having another look at the files.
Q. May I ask you just one more question in that connection. Did the individual who made the change at any other time over have access to that case file again? In other words, as I understood you, you said that at the beginning of the trial the file was transferred to you, but I do not believe you excluded the possibility that at some later time, either during the later stages of the trial, or perhaps even after the trial, the files were again returned to the individual who made the changes; also, I do not believe you excluded the possibility that some time during the trial he may have come to your office and made the change.
A. I first consider it quite out the question that the expert of the time, Dorfmueller, should during the trial at which I was present all the time, should have had the office files in his hands, for he should have had to remove them from the desk of the prosecutor who was sitting at that table in the German court, and he would have had to fetch them from my desk which naturally would have struck me to such an extent that I would remember it for certain today, for that would have been an entirely unusual occurrence.
On the other hand, the expert did after the end of the trial have the office files returned to him. I, as the prosecutor, had the files only during the trial, and at the end of the trial, via the office, I returned them to the expert. That is also obvious from the regulations on the back of the files where it says: "return to expert". Thus the change must have been made either before the opening of the trial or, and that I think is out of the question, it was made by the expert after the sentence had been pronounced. I consider that out of the question, because in the same blue pencil the application was written down that a defense counsel should be appointed, and that application was decided on before the beginning of the trial in September or October by the presiding judge. Therefore, according to my firm conviction, the notation "death sentence" must have already been entered in the office files before the trial opened.
Q. I think that gives us the benefit of your deductive reasoning as to how you came to this conclusion. Now, I want to go to another subject. In your years as prosecutor, before the Special Court, wore you not aware of a ruling, perhaps even an order, by the Reich Ministry of Justice which required prosecutors to confer with the judges of their court prior to the beginning of a case; are you aware of such a ruling?
A. There was an instruction from the Reich Ministry of Justice; whether it existed in writing, or whether the head of the office passed it on to us verbally, I don't know; an instruction to the effect that the demands for a sentence by the prosecutor and the sentence should, if possible, agree, or should at least approximate as far as possible.
For that purpose the Reich Ministry of Justice instructed the prosecutors, and probably informed also the judges of that instruction, that before the sentence, or at the conclusion of taking of evidence, any how, around about that time, that the prosecutor should contact the court in order to find out what sentence the court would probably pass, and so that the prosecutor could decide what sentence he was to demand.
Q. In other words, the purpose of the conference was to effect some agreement prior to the time you appeared in court for the final summation, to effect some agreement of your request for sentence and the court's predeterminited judgement as to what the sentence would be -- perhaps that question wasn't very clear to you. If you don't understand it, I will repeat it.
A. May I ask you to repeat your question?
Q. Yes. As I understand the purpose of the ruling, as you have explained it, it was to prevent you, the prosecutor and other prosecutors from coming into court and making a demand for a sentence which was not in agreement with the sentence which the court intended to pronounce. Is may understanding correct?
A. The ordinance by the Reich Ministry of Justice, evidently was intended to prevent sentences from being more severe than the prosecutor had demanded. Accordingly to my knowledge that was the purpose of that ordinance. It does not happen infrequently at a German court that the judge passes a considerably more severe sentence than the one which the prosecutor had demanded; and the Reich Ministry of Justice evidently wished to avoid that.
And in my opinion the avoidance of that circumstance was the main purpose of the ordinance by the Reich Ministry of Justice which I have mentioned.
Q. So far as you know, was there any penal law or any procedural law which prohibited a judge from passing a sentence in excess of the penalty demanded by the prosecutor?
A. Under German law it was not forbidden for the judge to pass a more severe sentence than the one which the prosecutor had demanded.
Q. It was only embarrassing; is that right?
A. I didn't understand that question.
Q. I will withdraw it any way. Now, in connection with this ruling which you have described, even you as an independent prosecutor could not defy a wish of the Reich Ministry of Justice, I assume; and I further assume that in accordance with this regulation you went to see both Rothaug and Oeschey while you were public prosecutor and while they were judges, presiding over the Special Court; is that correct?
A. As a prosecutor I was tied by the instructions by the Reich Ministry of Justice; that is to say, I was under obligation to adhere to the instructions by the Reich Ministry of Justice, and in view of the instructions by the Ministry of Justice I naturally, in all cases of doubt, contacted the court either before or after the evidence had been taken, so that I could achieve the result which the Reich Ministry of Justice wanted, that is to say, an agreement or at least an approximate agreement.
Q. And, in those conferences which you had with Rothaug and later Oeschey, do you recall the number of instances in which you have had to increase your sentences to have it come within the scope of their desires? First, let me ask you, were there instances where that occurred?
A. There were cases where the Special Court told me that the sentence which the prosecution had intended to ask for appeared to lenient to the court; whereupon, I, in virtue of the instructions from the Reich Ministry of Justice, demanded a more severe sentence. It also occurred frequently that of necessity all the same, the court either did not go beyond or went only slightly beyond the sentence which was originally intended. I believe that in those cases the purpose which was to be achieved by asking for a more severe sentence was only to allow the court more discretion in penalty matters without there being any fear that the demand by the prosecution might be exceeded. That is to say, it was not necessarily so that when we asked for a more severe punishment, the court did actually act in accordance with that demand, but in my recollection it also happened that the court, all the same, pronounced a sentence below the higher demand made, but as for a number of cases, where the penalty was less than the demand or where the decision was in accordance with the demand for more severe sentences by the prosecution, as for the number, I cannot state them, not even approximately.
Q. Let me ask one final question on this general subject. First let me suppose a hypothetical case - that the defendant, either Rothaug or Oeschey, when they were presiding judge of the Nuernberg court, called you as a prosecutor and said, "In the case which is before us now you have proposed a sentence of six years.
We do not like that. We suggest that you change your plea to one of death." What would have happened to you, personally, had you gone out in the courtroom a few minutes later or a few hours later and proceeded to ask for a sentence of six years when you knew very well that they were determined to pronounce the death penalty?
DR. SCHUBERT: May it please the Tribunal, I object to that question. The question does not refer to facts but to the personal opinion of the witness, in a case which never occurred, a case which the prosecutor himself expressly described as hypothetical, and which, therefore, has nothing to do with the cross examination.
THE PRESIDENT: The objection will be sustained.
Q. Was it common for you not to accede to the wishes of either Rothaug or Oeschey in the matter of changing your request or your severity of punishment in your summation?
A. I was unable to understand the question.
Q. Do you recall any instance when you failed to accede to the penalty demanded by either Rothaug or Oeschey as a result of your conferences with them?
A. No, I cannot remember a case.
MR. KING: I have no further questions, Your Honor.
THE PRESIDENT: The witness may be excused.
(Thereupon the witness was excused and withdrew from the courtroom.)
(HANS KERN, a witness, took the stand and testified as follows.)
BY JUDGE BLAIR:
Q. Will you raise your right hand and repeat this oath after me:
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 BLAIR: You may be seated.
DR. SCHUBERT: May it please the Court, we are now concerned with Document Book 3 I, Document NG-563, Exhibit No. 232.
THE PRESIDENT: Proceed.
CROSS EXAMINATION BY DR. SCHUBERT:
Q. Witness, begin by telling the Court your name and your profession.
A. Hans Kern, lawyer.
Q. We are concerned with your affidavit which you deposited on 6 January 1947 before the prosecution. I only want to ask you a few questions. You said that applications for evidence by the defense were almost always rejected as irrelevant by the Special Court in Nuernberg. Do you remember a case where the Special Court, with Oeschey as presiding judge, admitted an application for evidence by you in a case where the death sentence could be expected?
A. Yes.
Q. Can you give us some details briefly?
A. It was a case of robbery after an air raid. I applied for evidence. I wanted witnesses heard. The court decided to make further investigation into the natter. The decision was well founded. As far as I remember, proceedings were later on stopped.
Q. Witness, can you tell us what sentence was provided by the law at that time for robbery?
A. Death sentence.
Q. In your affidavit you mentioned a number of cases which have already been dealt with here. I merely intended to refer to one of these cases. That is the Kwasnik case, in the German text on page 5 of the affidavit. The case of a Polish farmhand who had performed an abortion or made an attempt to do so. Do you know, Dr. Kern, whether that man was in fact called Kwasnik?
A. I only remember the case. I am not able to remember the name with any certainty because it was a long time ago, but I believe he was Kwasnik.
Q. Witness, the defendant Oeschey denies emphatically knowing anything about this case. Can you, in fact, with absolute certainty, beyond any doubt, state that the defendant Oeschey was the presiding judge of the Special Court in that case?
A The case of which I was thinking when I deposed ay affidavit was dealt with by Oeschey, the presiding judge at the time. That was a case which occurred near Neustadt an der Aisch, and the subject of that case was abortion. The defendant was a young...
Q Witness, forgive me, if I interrupt you. I did not ask you about the case. I only asked you whether any doubt is out of the question with you that Oeschey was the presiding judge in that case.
A The case which I described excludes all doubt.
Q When was the trial of that case held?
A I cannot exactly tell you the year. It may have been in 1942; it may have been in 1943.
Q Can you remember whether the abortion on trial had been completed, or whether it had been attempted?
A In my recollection the defendant was indicted as an enemy of the people. The crime was abortion. Whether completed or attempted I cannot say with certainty.
DR. SCHUBERT: I have no further questions to put to the witness.
BY DR. KOESSL: (for the defendant Rothaug):
Q Witness, did Rothaug's manner of conducting a trial, according to your observation, violate the formal code of procedure?
A No.
Q Can you summarize in brief which were the main points of view which were scored in Rothaug's method of conducting a trial?
A I have not understood that question properly.
Q You said just now that a violation of the provisions of the code of procedure had not occurred. On the other hand, however, you made some criticism of his method of conducting the trial. What were the main points of view which you wished to criticize concerning Rothaug's method of conducting a trial?
A I have said that in my view Dr. Rothaug's method of conducting a trial was not objective.
By that I mean the absolute unprejudiced state of mind of the judge concerning the facts themselves, the defendant, and the other persons who take part in the trial. Rothaug regularly -- there were exceptions, however -- was very abrupt, some time rude with the defendants, so that the defendants showed obvious signs of intimidation. As far as the defense counsel wore concerned one felt that one was more of a puppet. In my view the defense counsel were not allowed the necessary scope to work in the interest of his client.
Q Witness, in cases where you felt yourself to be hampered, did you try to achieve a reopening of the trial by formal and well founded applications for evidence during the session which would have created a basis for governing the sentence?
A I myself did not ask for a case to be reopened.
Q I am not going to the Durka and Strus case. Do you know whether, in the Durka and Strus case, the speedy scheduled of the trial was what Rothaug wanted?
AAccording to my conversation with Dr. Rothaug before the opening of the trial I must conclude that he himself found it embarrassing that that the trial had to be held. As he told me during our conversation there were no files in existance and the indictment had not yet been produced. He was annoyed about that.
Q Why did Rothaug, in your recollection at that time, in spite of that fix the trial for the afternoon?
A I asked Dr. Rothaug to postpone the date since I had not sufficient time to prepare my defense. Dr. Rothaug told me that that was impossible. He had had instructions or directions from the Reich Ministry of Justice saying that that case must be tried immediately. Then I told Dr. Rothaug that I could not take over the defense; whereupon he told me that in that case the trial would have to be held without the defense counsel. So as not to leave my client without protection, I decided to take on the defense.
Q With reference to what you said just now, there are two points I wish to raise.
Firstly, you say that there were no files. Can you remember that copies of the files were available to the court?
A I asked Dr. Rothaug to let me have a look at the files. Dr. Rothaug told me there were no files. There were merely the police reports, and at the very moment when I was with Dr. Rothaug those police reports were with the prosecutor so that he could write out the indictment.
Q May I deduce from that the essential portions of the penal files did then exist?
A I can not say that because I did not see them. I did not see the files at that time, nor at a later time. I only know that Dr. Rothaug at the trial had portions of files with him.
Q In your affidavit, as well as in your previous answer you mentioned that Rothaug had said that in case you should refuse to take on the defense the trial would be held without a defense counsel. I would like to ask you.... do you concede that Rothaug spoke in such away that in case you were to refuse, the trial would be held without you as a defense counsel? That in other words, another defense counsel would be appointed in your place?
A Naturally I no longer remember the exact wording. I do concede the possibility that Dr. Rothaug, when he made his statement, may have meant to say that I, my person, would then be eliminated as a defense counsel.
Q Witness, it is correct that besides you, another defense counsel worked on that trial?
A Yes. It was Justizrat Dr. Kuehn.
Q Is that defense counsel still alive?
THE PRESIDENT: This is almost time for adjournment. Do you require very much mere time?
DR. KOESSL: It will be not very much longer, Your Honor, but I assume it will be about fifteen minutes.
THE PRESIDENT: We will adjourn in that event until next Monday morning at nine-thirty. (The Tribunal adjourned until 0930 Monday, 2 June) Official Transcript of the Proceeding in the matter of the United States of America, against Josef Alsteeter et al, defendants, sitting at Nurnberg, Germany, on 2 June 1947, 0930-0950, Justice James T. Brand, presiding.
THE MARSHAL: Persons in the courtroom will please find their seats.
JUDGE BRAND: You may be sealed.
THE MARSHAL: There will be order in the courtroom.
JUDGE BRAND: The Judges who are present this morning have thought it advisable to come into the courtroom for a conference with Counsel for the Prosecution and for the Defense.
The record will show that we are not sitting as a Court this morning. We have come in for the purpose of conferring with the gentlemen for the Prosecution and Defense as individual Judges, and with you as individual Lawyers.
The reason for this procedure is that his Honor, the Presiding Judge Judge Marshal, is in the hospital for, we trust only a few days, and we consider it important that we should not sit as a Court in his absence. Our reason for that being that we desire to make it perfectly clear that he remains as the presiding Judge, and that we are not sitting as a Court in his absence.
We will, however, expect the interpreters and the reporters to make a record of this conference, in the same manner as they would do if we were in open session.
The individuals who are here, I am sure all of us, desire to waste as little time as possible.
We are advised this morning that there are a number of witnesses who have been brought from considerable distances, who are here at the request of Defense Counsel for the purpose of being cross examined by Defense Counsel. It might be difficult, and would surely be most inconvenient to send them all home in the hope of securing them again at a leter time. Therefore, in behalf of my associates and myself, I should like to ask the Prosecution, if the Prosecution has any ***** suggestions, which I understand he has, as to a procedure by which we might expedite the trial when it reconvenes, and with fairness to all parties.
MR. WOOLEYHAN: Your Honors, in the absence of the Presiding Justice the Prosecution respectfully suggests that under the provisions of Article V-e, of Ordinance No. VII, and, further, under Rule 24 of the Rules of Procedure for Military Tribunal III, that the Tribunal duly appoint from its members one or more Commissioners to hear and to take evidence upon the cross examinations of the witnesses now available, and to become available, until the Presiding Justice can return to the bench. That is, in our opinion, completely not prejudicial to the Defense, and in the interest of an expeditious clearing up of the cross examination of these affiants.
JUDGE BRAND: The Judges who are conferring with you have considered that suggestion. We think that if such a procedure should be carried out it should be under substantially the following conditions:
1) That an order should be made to be signed by the Presiding Judge. I understand he is able to do so, and by the other members of the Court, so that it will unquestionably be the act of the entire Court.
2) That the order should appoint as Commissioners, the three Judges who are conferring with you this morning: The Honorable Judge Blair, the Honorable Judge Harding, and myself.
That, we would then proceed to hear the cross examination of these witnesses as conducted by the Defense Counsel and the re-direct examination, if any. And, that the testimony should then be reported by the three of us to the full Court consisting of: The Presiding Judge, Judge Blair, and myself.
That, upon the examination of that cross examination by the Presiding Judge, and by the other members of the Court, sitting as a Court, there would be no possible prejudice to any party, that we can see.
On the other hand, to release these witnesses whom the Defense Counsel has called might prove prejudicial to you.