However, I also stated that I could not suspend the last day of the hearing, if this was the last piece of evidence. Under those circumstances, in my office this morning, I agreed that there would be formal legal questions raised against this exhibit; that Dr. Behling might present them now or other Defense Counsel, if the Court felt it wants to take up that matter at this time, and, which, of course, I cannot control and so stated.
I now state again affirmatively that at the proper time, having due regard to the situation which confronts Dr. Behling, we will offer the document NG 1007, as a Prosecution exhibit. If Dr. Behling now wants to take the podium or anyone else, or if the Court wants to say first whether they care to entertain argument in anticipation. This document has not yet been distributed, your Honors. The basic question revolves around the fact that it is the affidavit of Dr. Behling's, the contents, are not at this time material.
THE PRESIDENT: There seems to be no reason why we cannot hear Dr. Behling's statement at this time.
DR. KUBOSCHOK: In the name of my colleague, Dr. Behling, I would like to -- in regard to the defense which I have taken over, I would like to say the following in general and in particular:
The question is of great importance and very serious for us, not only f or me as Defense Counsel, but also for the rest of the Defense Counsel. Therefore, I would like to ask your indulgence if I talk to a greater length about it. First of all, the story of this particular affidavit -- in March, from Nurnberg I corresponded with my colleague Behling who was living in Berlin, about his possible assistance in the defense later on. Before any decision had been made, about this Mr. Flechtheim a Berlin remember of the OCC approached him with the request to discuss several problems of the People's Court -- to make some statement about it. Dr. Behling told him that at the moment he could not see clearly yet whether he, himself, would later on take part in the defense in this trial.
This question was not yet decided. Therefore, he would like to ask for the opinion of Mr. Flechtheim, whether under these circumstances, he could give an affidavit. Mr. Flechtheim answered: That was a worry for later on. If Behling should actually later on enter into the defense of this case, he could, have discussion with the Prosecution on the subject. Thereupon Dr. Behling made the affidavit to Mr. Flechtheim. About the 12th of March Dr. Behling appeared here, we discussed his participation in the defense. He told me that under these circumstances he had given an affidavit to Mr. Flechtheim, but this affidavit was, however, in no way concerned with reference to the personality of Schlegelberger in an unfavorable manner. I pointed out to Dr. Behling, that there was a charge of conspiracy raised in this trial. Dr. Behling found out about this for the first time through me, about this charge.
Thereupon, he got in touch with Mr. La Follette. Dr. Behling does not understand English; Mr. La Follette does not understand German. An interpreter was asked to help them. He was a gentleman who had already before failed in the translation. And now comes the big misunderstanding. Dr. Behling believes that Mr. La Follette stated that he would not submit the affidavit. Mr. La Follette explained to us yesterday that he had actually said he did not know the affidavit; he would have to examine it first; and only after that, could he make a decision. In any case, at that time Dr. Behling returned with the answer that the affidavit would not be used. Thereupon, he took part in the defense.
Two or three days ago, Mr. La Follette stated that he would use the affidavit. I make the supplementary remark that in the meantime there had been another case too in which the interests were similar. Frau Solf testified as a witness. During the examination, she mentioned that once in the camp, or in the prison, a Berlin lawyer had visited her. In the cross examination, a defense counsel asked who this lawyer had been. Thereupon, Mr. King came to the stand and stated that by agreement they did not want to mention his name -- because his name would have been Dr. Behling.
This incident confirmed, per se, our general, opinion that the defense counsel should not be entered into the trial in the capacity of a witness; this is, as far as the specific side of this case is concerned. If the affidavit will be read, several defense counsel have already announced that they will undertake a cross examination. The following situation will thereupon arise: the lawyer Behling, who will be under cross examination, is limited in his testimony because owing to the general character of the content of his affidavit -- he would have to enter into a number of general, questions -- general questions about which, in the course of the informations which he received through his client and also other defendants in this trial, he has today again a particular insight. According to the German rules of trial procedure however, the defense counsel is not free in his testimony before the court to talk about matters which his client has told him in the exercise of his profession.
Therefore, a witness of this kind could, on the witness stand, say only, "I can, with the picture which I have today, not make sufficient statements because I would render myself liable for punishment if, of necessity, I would use also in my statements those facts which I found out in my capacity as a defense counsel."
The condition would arise, therefore, that an affidavit which was made previously -- could not serve as a basis for an exhaustive cross examination. Therefore, I believe that legal reasons in this case, would make it impossible to submit this affidavit, an affidavit of a defense counsel who was working on this case. I am supported in my opinion also by Article IX, paragraph B of the General Rules of Procedure. In this article, it says that, "Witnesses are not allowed to be present at the trial until they have been examined." The lack of prejudice of the witness is supposed to be guaranteed. This applies much more strongly to a defense counsel who not only has lived through all of the sessions but who without any doubt, through the information he received from his client and from other defendant's, is somehow impressed by this information.
Finally, I would rise like to ask you to consider the special situation in this tried. The defense counsel are, in this trial, not opposite a foreign subject matter as they are in other trials. Every one of them could probably- be witness and expert at the same time in this trial. What would it lead to, if the defense counsel would act in the capacity of a witness and as a defense counsel. The example that is brought up today would probably be followed. We would then have the situation arise again and again that defense counsel will be asked to speak as witnesses and experts. I believe in order to get an absolutely clear and objective picture, this method of procedure would not be commendable since it is probably very seldom the case that a defense counsel is not impressed subjectively by his own case. At the moment I cannot state exactly whether in the IMT trial, this situation arose.
This morning, I was informed that the testimony of a defense counsel was refused in the IMT trial, but I have not yet had the opportunity to examine this; and therefore with this reservation, I am reporting this information.
Finally, I would like to point out also that the testimony of Dr. Behling, for him and possibly also for me, might give rise to the question as to whether we would then still be in a position for a number of different reasons to represent the interests of our clients and to continue the defense.
JUDGE BRAND: Counsel seems to me to have confused a number of quite different principles. Entirely aside from the legal, right, if it exists at all, for a defense counsel to testify for his client, the fact remains that it's generally considered an unethical thing to do. This case doesn't involve any question of a defense attorney testifying for his client. Now, isn't this also the situation? Here was an affidavit. We have no knowledge of its contents, which when made was entitled to admissibility in evidence. The simple question is whether by the employment as attorneys of an individual who has made an affidavit which would be admissible in evidence for the prosecution, the defense can thereby deprive the prosecution of what was theretofore legitimate evidence. It seems to me that if there is responsibility for this unfortunate situation, the prosecution has not caused it. I should like also to add a merely personal word that I have heard and can think of nothing which in any way detracts from Dr. Behling's reputation or character. If it be true that he consulted with Frau Solf in the jail, there is certainly nothing to be condemned in that at all.
DR. KUBOCHOK: Naturally, it is not a dishonor for Dr. Behling to have represented Frau Solf in her trial. That is obvious. One would have to suppose the opposite. The fact that he should not be called, in our opinion was due merely to this one thing, and the same reason which we gave for not admitting this affidavit, namely that the defense counsel should in no way be brought into personal connection with the matters that are discussed in the trial.
I believe that this is a very sound thought due to the particular nature of that trial.
JUDGE BLAND: Let me ask you: who created this situation which you find to be so unfortunate? The affidavit was admissible when made. You claim it becomes inadmissible because of the fact that a defendant has later employed the attorney who made the affidavit.
DR. KUBOSCHOK: The situation would not have arisen if at that time I had known that such an affidavit would be used. Since, however, this unfortunate misunderstanding entered into the case, the situation now came to this point. I would like, however, to consider in particular, independent of guilt or lack of guilt or responsibility, whether or not actually in a legally limited cross examination, the rights of the defense in regard to this affidavit would not be fully protected. In my opinion, there would be no practical purpose that such an affidavit of this nature is submitted and a defense counsel would have to say, on the witness stand; "Due to my activity in this trial and due to everything that I have now found out, I would have to submit a new affidavit. I cannot do that since I have been prevented that through the legal code of procedure."
JUDGE BRAND: Did you say, Mr. LaFollette, that the affidavit was on March 1?
MR. LAFOLLETTE: Yes, Your Honor. If your Honor please: I am in a position....I want to take the position now....of merely, in a sense to argue or temper what has been said. There was, it was stated, a misunderstanding... I have no reason to argue that. But, I have... I must add this other fact: I have offered either to call Dr. Behling and let him take the stand and explain as long as he wished to anything about his activity. I've offered to introduce the affidavit and permit him if he chose voluntarily to take the stand. I've offered to submit the affidavit and let the court rule upon any request of the defense to call him to the stand.
I cannot understand how the validity of this affidavit.... that is, the fact stated.... would be affected by any information which he has subsequently obtained. He honestly stated the facts as he knew them. They might be explained. He have not sought to restrict in any way his right to testify in explanation. I know of cases in which it is -- when it becomes necessary -- it is possible where several people are on trial -- that where a man gave an affidavit, a fact, involving one man, or two men, and subsequently he accepted employment.... he was free to accept that employment if the other person wanted to hire him under the circumstances. But if his deposition was valuable it didn't affect his deposition. In any event, certainly any thing that Mr. Flechtheim might have said when this affidavit was given, I can not believe, as a matter of law, would influence the giving of the affidavit. The affidavit has been given. I can not see how any defendant is -- will be -- injured under the facts, and under the circumstances, and under the conditions which I now name which I am perfectly willing to offer or abide by any decision which this Tribunal may make with reference to the right to testify. And I can not see, if the right to testify is in favor of the defendant, is personal for that defendant, then the prosecution does not object - I cannot see where the injury arises.
I think we are in a preliminary stage but I would like, in order that Dr. Behling may be informed, that the court state its decision, or wait until we offer the affidavit.
THE PRESIDENT: We will take the usual recess at this time.
(A recess was taken)
THE MARSHAL: The Tribunal is again in session.
DR. GRUBE: May it please the Court, concerning the point which we have just dealt with, I would like to make one more statement: In No. 17 of the rules of procedure as laid down by the Military Government, and issued by the Military Government for Germany contains the following statement: "With the exception of the defendant, anybody can be called to testify before a court of the Military Government as a witness, but before a court the compulsion to give testimony does not apply to the following persons: Under No. 2, it says and I quote: "Legal advisers concerning written or oral statements which they receive from their clients as a matter of professional routine unless such information is subject of an action contrary to the law, or of an opinion, or is in connection with such an action."
THE PRESIDENT: Please, what are you reading from. I didn't get it. Is is No. 10, Control Counsel 10.
DR. GRUBE: No, I am reading from the rules of procedure issued by the Military Government for Germany, for courts of the Military Government.
THE PRESIDENT: Ordinance 7?
DR. GRUBE: No, it is not Ordinance 7. It is a special ordinance which is valid for all military courts, which has been issued by the Military Government of the USA for Germany or in connection with it. May I point out.
THE PRESIDENT: Just a moment. Are you referring to the Law No. 11, the Military Government Law.
DR. GRUBE: No, in this collection it is quoted under the name of "Procedure for the courts of the Military Government", and these were issued by the Military Government for Germany. I have the English text before me, if the Court would like for me to do so, I can put this English text at their disposal.
THE PRESIDENT: Yes, so I may read it.
DR. GRUBE: The defendants did not know that the defense counsel, Dr. Behling had deposited an affidavit which under certain circumstances could be used here, and might lead to cross examination, trusting the obligation to secrecy of the German attorney. The defendant entrusted the defense counsel, Dr. Behling, with certain matters which of necessity, within the scope of cross examination would follow the affidavit, would be brought up. Your Honor made the reproach before that Dr. Behling was appointed defense counsel, so that possibly the introduction of the affidavit would be made impossible. May I point out that neither the other defense counsel nor the defendant had any idea that Dr. Behling had deposited the affidavit, I am convinced that the defense counsel would have objected against Dr. Behling's appointment as a defense counsel.
THE PRESIDENT: We understand that the rule to which Dr. Grube refers is now in the translation booth, and I think we should all know what that rule is, and I think we should have it read from the translation booth at this time.
DR. HAENSEL: May I make a few brief remarks.
THE INTERPRETER: "General Provisions No. 17. Compellability of witnesses. Any person other than the accused may be required to testify before a Military Government except a person of unsound mind, provided that no witness shall be required to incriminate himself, and provided also that a court shall not compel, 1) a husband or wife or a parent or child to give evidence against the other,
2), a legal adviser to disclose any communication between himself and a client made in the course of a professional relationship except when the communication was part of, or connected with an unlawful act or omission."
THE PRESIDENT: Now we will hear you, Dr. Haensel.
DR. HAENSEL: I would ask the Tribunal not to assume that this affidavit in any way was to be done away with by the defense by having Dr. Behling employed here as a defense counsel. There are situations in which perhaps even a legal expert, or at any rate a person who should be a legal expert, makes a mistake. Just in this trial, of jurists, naturally, it is particularly difficult to understand that a legal expert should not know certain rules; several days ago we heard here how a question was put to a witness, asking him to describe in detail the course of a proceeding, and say first of all how many judges were sitting in the dock. "Sic venia verbo," that was a slip of the tongue.
In all seriousness, we must not get into a situation where a question might be asked, How many defense counsel have testified for the prosecution. I think the fact that Dr. Behling finally became employed here as a Defense Counsel excludes the use of the affidavit, and that because, so far as I have learned, in the meantime I think, testimony in American procedure does not consist only of an affidavit. But the use of the affidavit is in all circumstances connected with the possibilities of cross examination being made.
I have brought Winthrop along with me. I would not like to expect the Tribunal to listen to my English, which I think is quite good but which, I have often noted, is incomprehensible to English and American cars. Because of that I would ask the translator to read the text on Page 342, where I have marked the passage.
THE PRESIDENT: One moment, We'll have it read, but before it is read, Winthrop as an author is not familiar to me in my uneducated situation. I am wondering who Winthrop is.
THE INTERPRETER: "Winthrop's Military Law and Precedents, Second Edition."
THE PRESIDENT: Well, we'll hear it read for what it is worth. Proceed.
THE INTERPRETER: "Cross Examination; its Scope in General: So essential is cross examination, or the opportunity to cross examine, to the acceptance of facts as legal testimony, that all ex parte statements whatever, whether or not sworn to, are radically incompetent as evidence on the merits and should be absolutely excluded by the court, even though the party entitled to object may be willing to consent to their introduction."
DR. HAENSEL: Concerning cross examination, an attack on the credibility is part of that. That alone would cause an impossible situation, if a Defense Counsel might have, in certain circumstances, to present a colleague as not credible.
Furthermore, it is impossible that the witness under cross examination is suddenly bound to say, "I can not answer this question because of my professional obligation to secrecy."
Consequently, the same situation has arisen as if colleague Behling had fallen ill, so seriously ill that he can not appear in Court.
I believe, therefore, that we must assume that because there is no opportunity for cross examination, this affidavit can not be produced here. I regret that there may thus arise a disappointment for the Prosecution, but the same would happen if physical circumstances prevented our colleague Behling to appear and to stand a cross examination.
JUDGE BRAND: Will Counsel bear with me while I explain one matter which may have been misunderstood in my previous comment? I want to assure both Dr. Behling and all of the other Counsel for the Defense that no reproach was intended in my suggestion, nor did I intend, nor did I intimate that Dr. Behling was employed as attorney in order to exclude the affidavit. I did suggest a consideration of the legal result which would follow the adoption by the Court of the rule for which Dr. Kubuschok was arguing. I am sure that Counsel understand that there was no reproach intended.
DR. HAENSEL: Thank you, Your Honor.
THE PRESIDENT: The Tribunal will make a ruling at this time. The ruling may not be as broad as either the Prosecution or the Defense may desire, but it is as broad as the Tribunal is willing to make at this time upon the facts which have already been presented.
I should further state that no member of this Tribunal has the faintest notion or idea or information as to what this affidavit contains. The ruling we make is on the general proposition of the admissibility of an affidavit made by a person when he is not -before he has yet been employed as counsel.
It appears from the statements on both sides that we have under consideration here an affidavit that was made before Dr. Behling became Counsel in this case.
We had nothing to with Dr. Behling's selection. As I remember it, the application was made by Dr. Kubuschok to have him appointed as his assistant Counsel, and we approved that, just as we have approved every application that has been made. We had nothing to do with that. But the ruling of the Court is that if an affidavit has been made before he became Counsel and before any confidential relations had been established, the affidavit is admissible in evidence.
MR. LA FOLLETTE: If Your Honor please, I think that the Court has been very fair and particularly fair in deciding the question before the affidavit has actually been submitted. I know the Tribunal understood that I was not at this time prepared but that Dr. Behling was going away and wanted this to be understood.
THE PRESIDENT: We made the ruling at this time for that reason. Ordinarily we would wait until the document was offered. It had been stated that Dr. Behling desired to be away. We thought that we would give him the benefit of our ruling.
Mr. LA FOLLETTE: That is what I understood. I appreciate very much the action of the Tribunal on behalf of myself and I think that I can speak for Dr. Behling on this occasion. I will again say now that I will withhold the offering of this affidavit as long as I can, but I will not delay the final closing of the plaintiff's case if, when that time comes, Dr. Behling is not here.
I ask again now to renew my request, unfortunately, that we recess until Tuesday morning. We can not do anything else. I am sorry.
THE PRESIDENT: At this time the Court will recess until ---oh-
DR. KUBUSCHOK: The discussion of this case today came as somewhat of a surprise. Therefore, I may have made a mistake earlier today in limiting the facts and in not presenting them to you in their full extent. I do not know whether I shall do so now or whether I shall do it when I have the files in my hand, but I should now like to point out that Dr. Behling worked for the defense of Dr. Schlegel burger before he deposited the affidavit.
He collected affidavits. At the and of February I asked him already to come here so that he could join the Defense.
Later on, on the 1st of March, it was only on that date that he made this affidavit.
MR. LaFOLLETTE: If your Honors please, I would like to say this, that if when I offer the affidavit there is to be an issue of fact, I will ask that Dr. Kubuschok and anyone else be sworn and that we not accept statements from the bench, and I will produce Mr. Flechtheim down here Now, I don't want any discussion of facts at this time; I don't think it is fair.
DR. BEHLING; May I please the Tribunal it is always painful to say something in one's own cause, and in particular in such a precarious situation in which I an finding myself at the moment. I would not have spoken today unless the discussion here had come very suddenly. To correct my colleague, Dr. Kubuschok, I must say the following: Before I came to Nurnberg, I did not work for the Defense. I merely within the scope of matters of civil claims, which were completely separate from the trial here, conducted negotiations in Berlin and in the Russian zone for the defendant Schlegelberger on those natters. When I was summoned to go to see Dr. Flechtheim, the question of my appointment at Nurnberg had not been settled. Dr. Flechtheim told me when I pointed that out to him, and when I told him that I night possibly become a defense counsel at Nurnberg, that I should discuss the natter in Nurnberg with the gentlemen of the Prosecution. I then went ot see Mr. LaFollette on the assumption that Berlin would have acquainted him with the facts, and that in particular he would have my affidavit in his possession, as I had boon told that the matter of my giving this affidavit was very urgent. Like hr. LaFollette, I regret the misunderstanding which arose from our discussion at the time on account of translating mistakes.
It would have been a natter of course for me never to have accepted an appointment as a defense counsel if I would have had to appear as a witness for the Prosecution, and that I only took on my appointment as a defense counsel when I believed that the Prosecution did not wish me to appear as a witness. Those were the motives which at the time led to me depositing my affidavit, and I would ask the Tribunal to be convinced that today in consideration of the impressions I have gained at the trial, I an in a very definite conflict with my conscience, but I believe that the Tribunal will find the solution which will remove these difficulties.
THE PRESIDENT: As we previously announced, at this time we will recess until next Tuesday morning at 9:30.
(The Tribunal adjourned until 6 May, 1947, at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United. States of America, against Josef Alstoetter, et al., defendants, sitting at Nurnberg, Germany, on 6 May 1947, 0930-1630, Justice Carrington T. Marshall, presiding.
THE MARSHAL: Persons in the courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal No. III.
Military Tribunal No. III is now in session. Cod save the United States of America and this Honorable Tribunal.
There will be order in the court
THE PRESIDENT: Mr. Marshal, you will please ascertain if the defendants arc in court.
THE MARSHAL: May it please Your Honors, all the defendants are present in the court room with the exception of defendant Engert who is absent due to illness.
THE PRESIDENT: The defendant Engert is temporarily absent at his own request. The proper notation may be made.
With reference to the defendant Engert, some matters have been called to the attention of the Tribunal and the Tribunal will make no order concerning the defendant Engert except this: that he must not be removed from the vicinity of Nurnberg.
At the request of the prosecution, I have secured from the Secretary-General a document -- it doesn't bear the document number -I don't know what the correct procedure is on that. I think I will turn it over to the Secretary-General in the room.
MR. LA FOLLETTE: Is there an exhibit number attached to that?
THE PRESIDENT: There was. When they brought it up to my office, I am sorry to say I sighed the receipt on the notice that was sent up with it, and nor I don't have the number. Maybe the prosecution should remember better than I. It's the document that they desired.
MR. LA FOLLETTE: I have no knowledge of the request. Perhaps I can look at it. (Document is offered to Mr. La. Follette.) Regarding that, Your Honors, Document NG-381 was given a number at the last session, but because the 24 hours had not elapsed by a short period of time, it was not introduced.
It's Document NO. NG-204, Exhibit 331 that had been identified and hold back and now is formally offered for all purposes.
THE PRESIDENT: It may be received without condition.
MR. LA FOLLETTE: I am advised that originally when that exhibit was offered as 381, part of the exhibit was missing. It's now been supplied.
JUDGE BRAND: May I ask you: Exhibit 381, according to my notes was first marked only for identification. Does that apply to NG-204?
MR. LA FOLLETTE: That is right, your Honor.
JUDGE BRAND: Well, wasn't it received after that?
MR. LA FOLLETTE: We thought it was received. I wasn't here, but as I understand from Mr. King after it had been marked it was found that the exhibit as contrasted from the documents in the books had a page or two missing. Those have now been supplied and the exhibit is now offered as Exhibit NG-204.
JUDGE BRAND: Have we received the extra pages?
MR. LA FOLLETTE: The extra pages were in the document book, Your Honor; but not in the exhibit. That was the trouble.
I understand that there is now no objection. Is that correct, Dr. Schilf? (Dr. Schilf nods.)
Now, if Your Honors please, with reference to Exhibit 2967, which is either a PS document or an NO document, that is one of those unexplainable things that happen. The prosecution did not request this document. The document got into our document books by mistake. I think that yesterday Monsieur Raymond was looking for this document and said that it wasn't in the Secretary-General's office, and that he was going all around the place to find it. Anyhow, here it is, and if I may return it to the Secretary-General.
JUDGE BRAND: What is the document which had been offered and received in evidence and which the prosecution asked to have returned to the court?
MR. LA FOLLETTE: Your Honor taxes a very bad memory, but that was the other day that I asked that it be brought back so that a witness who took the stand might have it before him. It was in connection as I recall, with the witness Elkar who identified a document which had previously been introduced -- a letter with reference to limiting the legal rights of Poles, which came from the "Braum-Haus" in Munich. Your Honors did produce that document and the witness Elkar had it before him when he testified. That is the only document that I know about.
JUDGE BRAND: Has that gone back now?
MR. LA FOLLETTE: That was delivered back to the Secretary-General as soon as the witness Elkar finished his testimony. I don't know anything about it. I just want to return it to Colonel Nesbit and get it out of our hands.
THE PRESIDENT: I think I remember distinctly that it was at the request of some member of the prosecution staff that I was asked to procure it from the document room. There was a proper order for it, and it appears against this morning.
MR. LA FOLLETTE: If that happened, I again apologize to the court. I know nothing about it. The request must have come over the telephone because I don't think it took place in open court. The document are had was in connection with the witness Elkar and we now return ti. For the record, I now deliver this in person to Colonel Nesbit.
THE PRESIDENT: That was No. 2967-PS?
MR. LA FOLLETTE: That is right, Your Honor.
May Your Honors please, I now occupy the unenviable position of advising the court that the documents that I hoped to have arc not ready. I did discuss last week the fact that the document room was forced to move, and in that connection they were delayed. Thursday will be a holiday, but notwithstanding that, we hope to have adequate documentation to proceed beginning Friday. We also anticipate having at least one witness in Nurnberg at that time with whom re can proceed on Friday.