MR. WALTON:When this official mail from either Berlin or from the 11th Army contained a matter which should be brought to the attention of one or more sub-units, would Mr. Seibert dispatch the contents of this order, or his own directive, or some comment, to one or more of the commandos?
DR. GAWLIK:Your Honor, I object to the question because it is hypothetical. If he asked whether the witness know of some incidents of some case,dependent on the defendant Seibert, to that I have no objection, but whether he would have done it, for that the defendant Seibert can not be punished for what he thought he might have done or for what he would have done, but what he had done in fact. If the witness testified to what the defendant Seibert did do in somecases, or what he dispatched in some case, I have no objection that question.
THE PRESIDENT:The present defendant, the witness involved, occupied the same office as did the defendant Seibert, soo therefore----
THE INTERPRETER:Will you please repeat that, Your Honor.
THE PREISDENT:The witness was in the same office with Seibert, so, therefore, it is not unreasonable to ask him what Seibert did. Now whether the witness actually knows what Seibert did, or not, is only within his knowledge, and the only way he can find out as to put the question to him, and if he knows then he will tell us. If he does not know naturally he can not tell us, and the only way to find out is to ask him, which Mr. Walton has done.
DR. GAWLIK:Yes, I agree to that, but not to the question what he would have done. To the question of what Seibert did, or to the question as put by Your Honor, I agree.
THE PRESIDENT:Yes. I presume the interpretation of the question was, what was the custom, what was the practice of the office, what would he have done meaning in the usual routine and course of affairs of what Seibert had done, what did he do, that is what was meant, or by any one else in the same position. What was the routine of the office; communications coming in from the Army, how were they routed, and Mr. Walton showed that form in the question which when interpreted really is not objectionable.
Very well, witness, if you remember now the question, you may answer it.
THE WITNESS:I think I understand it correctly, and I would like to answer it as,to that effect:
During the absence of Herr Ohlendorf in the group staff, Herr Seibert was the deputy for the group staff; then Herr Seibert dispatched reports to the commandos as well.
MR. WALTON:Thank you, Mr. Schubert.
BY MR. WALTON:
QDid you over see any orders or correspondance concerning the screening teams set up in the prisoner of war camps to screen out prisoners of war, communist functionaries, etc.
?
ANo, Mr. Prosecutor, certainly not.
QDid you ever see any reports come into the office from these screening teams?
ANo, neither that, Mr. Prosecutor.
QDid you ever make any statement about your duties with the Einsatzgruppe-D at Oberursel?
AMay I have the question repeated please?
QDid you ever make any statement, or sign an affidavit, with reference to your own particular duties in Einsatzgruppe-D while you were in Oberursel?
AIn Oberursel I signed affidavits, yes, but at the moment I can not recall all the things which happened two years ago.
QDid you ever make any statement about the difficulties General Ohlendorf had to settle the question about whether the Krimchakens or the Karaimians were Jews?
AI think if I remember correctly, Mr. Prosecutor, in the Fall of 1945 I made a statement which contained about the following:
When occupying the Crimea the Einsatzgruppe came across the problem how certain Ethnic groups were to be treated.
Thos were the Krimchaks and the Karai mians.
The principal question, or the basic question which had to be decided was whether these groups of persons were to be treated as Jews according to the Fuehrer Order, or not.
At the time sofar as I can recall I testified that at the time Herr Ohlendorf did not want to and could not define this order himself, and, therefore, a decision from Berlin had to be applied for by him. I think that is about the statement I made at the time.
QI congratulate you on your most excellent memory. However, there is one point which appears in the affidavit that you omitted at this time, almost two years later, or a year and a half later. "Therefore the decision --" I shall read it to you and I am quoting now from your own affidavit: "Therefore, the decision was put up to the Reichsicherheits Hamptamt, Berlin, whereby the basic question was whether the Krimchaks or the Karaimians, or one of these two groups were to be considered Jews or not. In case - I am still quoting "In case that they would have been considered Jews, they would have come under the extermination regulations." Now this is only the point that you omitted, and I am still quoting: "Whether any decision or what decision arrived from Berlin is unknown to me. At that time I was absent from the Einsatzgruppe for some time in order to carry out these seizures of Russian POWs of Tartarian nationality at Nikolajew." Did you make that last statement?
AMr. Prosecutor, I certainly didn't draw that conclusion, and I should like to look at my affidavit now. I am quite certain that I said I was absent because repeatedly I was on journeys in connection with recruiting Tartars as volunteers in the POW camps at Nikolajew. I don't know whether I also said in a few villages in the Crimea, and, if I may add now, I recall quite clearly the other explanations that were also made, Mr. Prosecutor, just quoted, and I do not intend to leave them out, but I merely thought I had to say this in order to clarify the matters we are talking about here, but as to the seizure of POWs of Tartarian orign, I could never had said that. This could have only been the recruiting of Tartar volunteers, and I am quite certain I said nothing else, Mr. Prosecutor.
QThat is what appeared in the alleged affidavit, and I asked you the question and you have given an explanation. That is what I wanted. Now, did you ever make any statement concerning the commanding Officer of Sondercommando X_B, one, Alois Persterer?
APesterer, yes, and sofar as a commanding officer Pesterer is concerned, I made a statement.
QDid you ever make this statement and I quote: "P" - the initial alluding to Pesterer, "Who always inclined a great deal towards great independance had always the best understanding with the local Wherm cht, which could not be said of the Einsatzgruppe as a whole.
In addition Pesterer - " except you had the initial "P", "-was a great friend of alcohol who had always worried Ohlendorf a little, obviously from fear of inconsiderations by Pesterer." Did you make that statement --- or I shall withdraw that question, and ask you this one. Is that statement true?
AIn the manner as it was quoted now I certainly did not say it in just those words. I said, that after Mr. Wartenberg asked me about Pesterer's personality ---
QI withdraw that question, Mr. Schubert. I will ask you if that statement that I have just read to you is essentially ture. allowing for some differences in the translation?
AI do not want to answer this yes or no. I should like to make a brief statement. It is correct that Commando Leader presterer had much better relations with the local Wehrmacht than the Group-staff had. It is correct that Commando Leader Persterer had much better relations with the local Wehrmacht than the Group-staff had. It is correct that Herr Ohlendorf was not very enthusiastic about Herr Persterer during some meetings where the gentlemen of the Army took part in, when he took a little more alcohol than he should have done.
QDo you know of your own knowledge whether the co-defendant Ruehl ever was deputy to Persterer?
ANo, Mr. Proseuctor, the co-defendant Ruehl did not work during the time I worked in the office group, but I would like to add, that throughout the time of my service I never heard that Herr Ruehl ever was the deputy of Persterer.
THE PRESIDENT:Mr. Walton, do you intend to introduce this document which you are reading from now into evidence?
MR. WALTON:Your Honor, please, this document is now being searched for.
I only have the English translation, This is a document which was taken from the files of the Interrogation Center in Oberursel.
I cannot introduce it until such time as I receive from them either a signed c py by the defendant Schubert, or the original.
However, I believe that I am not precluded from asking him about it since I believe that the source of this document was from the defendant Ruehl --- Schubert--I am apologizing.
THE PRESIDENT:There is no question about the appropriateness and correctness and the relevency of your cross examination.
There was a discussion between you and the witness regarding Russian prisoners of war, but I don't know whether it ended with the meeting of the minds, or just what was said.
As I recall your quotation you used the word "seized" certain Russian prisoners of war, and the witness used the word "Recruiting," and of course, there is a vast difference between those two concepts.
MR. WALTON:I assume from my point of view he denied the statement as read to him, and that he substituted as to that fact regardless of what this document said, that he did recruit Tartars.
THE PRESIDENT:I see. Very well.
DR. KOESSL:Your Honor I merely would like to ask that on re examination I might have a copy of this affidavit for the redirect examina tion, because the testimony of the witness concerning the prisoners of war is very important as part of the conten ts of the affidavit.
The witness clarified this by saying merely recruiting of volunteers for the voluntary army, but I am not quite certain what actually is contained in the affidavit, therefore, I would like to ask that I be given a copy of this affidavit for the redirect examination.
THE PRESIDENT:Well, Dr. Koessl, you can not be interested or concerned unless the affidavit is introduced in evidence, and it has not been intro duced in evidence.
DR. KOESSL:Your Honor, I am only interested in finding out whether the testimony of the witness here on the witness stand really is contradictory to the contents of the affidavit, or, whether the contents of the affidavit contains exactly what the witness now said on the witness stand.
I assume so, but in view of the conditions at the time, then I am not quite certain that it is quite right.
THE PRESIDENT:Well, Dr. Koessl, Mr. Walton has put certain questions and the witness has answered those questions.
Now in the absence of the document, it is certain that the witness answers have just as much probative value as the Prosecutor's questions, because Mr. Walton's questions are not evidence so Mr. Walton is really bound by the defendant's answers, unless he can show something to the contrary, or can argue logically that the answers do not conform to what is reasonably to be believed.
DR. KOESSL:Yes, I am only concerned with the contents of the affidavit, the translation of what Mr. Walton read is not sufficient for me to prove that it is the actual contents in the German affidavit.
Mr. Walton said that he merely had the English translation of the German affidavit.
It is, therefore, possible first of all that mistakes occurred in the translation from German into English, and secondly, mistake in the transla tion of the text now read.
THE PRESIDENT:Well, Dr. Koessl, you were asking for something that Mr. Walton has already promised, about which the Tribunal has indicated you are entitled to if and when this thing comes to light, and, if it does not come to light, then there is nothing to debate.
MR. WALTON:Your Honor, if that does not come to light, his answer stands, or comes forth when I read the statement and asked if it was true, and I accept his answer, and I am bound by it, as you very carefully pointed out.
I see no reason for my surrender of my copy of a copy to Dr. Koessl at this time.
I would like a ruling on that if the Court please.
THE PRESIDENT:Dr. Koessl would you want to submit this affidavit yourself.
DR. KOESSL:No, Your Honor, I don't need it for that. I merely need it in order to convince myself during the redirect examination whether the cross examination was conducted correctly insofar as this matter was concerned.
If the Prosecution accepts the reply of the witness, I agree to it.
THE PRESIDENT:Well, you have the right on your redirect examination to clarify anything which has remained obscure and that the witness has brought out on cross examination.
MR. WALTON:Just one final word. I accept, Your Honor, the statement of the witness as being true to the best of his knowledge and belief that he recruited Tartar prisoners.
I shall act on that in my brief and in the closing statement and in any action I take on this the answer, and I dis believe because of translation difficulties this statement as I read it.
Maybe that will satisfy Dr. Koessl.
THE PRESIDENT:I think with that statement, Dr. Koessl, you can cons Mr. Walton as assistant defense counsel on this particular point.
Dr. KOESSL: For the time being I am satisfied.
THE PRESIDENT:Very well.
THE WITNESS:May I say something about this please?
MR. WALTON:Yes.
THE WITNESS:I am sorry that I am not quite satisfied as yet.
THE PRESIDENT:Well, it would be too much to expect that everybody would be satisfied.
THE WITNESS:Your Honor, Mr. Walton just said that I testified that I dealt with recruiting matters.
I am quite certain that this is not contained in my affidavit, and I would like to correct it.
I believe that there is an indication of saying that I was absent because during the time insofar as recruiting of Tartar volunteers are concerned, I was working in POWs camps in Nikolajew.
I was on my way to it but never was I personally in charge of the recruiting, and certainly I never made such a statement.
THE PRESIDENT:Very well, that statement may stand.
BY MR. WALTON:
Q.Now I believe you testified this morning that you go some office copies of the reports from Mr. Seibert to file, and that these reports contained some information concerning executions.
Nearly every report you got from Seibert had Information concerning executions, didn't it?
A. "Nearly every one" is going rather too far, Mr. Prosecutor. I would like to re-word this.
A part of these reports contained such communication.
Q.What percent of his reports would you estimate referred in some way to executions?
A.I can not tell you a percentage and I don't think it matters.
I can only say that the radio reports which were made out every two weeks to the Reich Security Main Office, in very many cases contained communications ab out executions which had been carried out.
I can further say that in other written reports as well such statements were contained, but to a much smaller extent, and much less often than in the radio reports.
Q.Do you want to make an estimate as to the number of radio reports that referred to executions, would you say it was fifty percent?
A.Mr. Prosecutor, it does not depend on my good will or good intentions but I simply think I am unable to make such statement.
I would be very grateful and glad if I could give a more exact statement in order to please you better, but I am afraid I can not say any more.
Q.Well, you were generally acquanited with what went on in head quarters, were you not?
A.In general, yes.
Q.Do you know what assignments were given to members of the staff other than yourself?
A.In general, the staff of officers of the staff I knew, of course.
Q.Did the Group-Physician ever have to inspect an execution by a gas-van?
A.I know nothing about gas vans.
THE INTERPRETER:There was a mistake in the translation, as was given "gas chambers" rather than "Gas-wagon" or gas-car.
THE PRESIDENT:Well, that is an important distinction between gasvan and gas chamber. So the witness may understand, you are referring to gas-wagons? BY MR. WALTON:
QDo you understand that I meant "gas-wagon" instead of gas chambers
A.Yes, I think you are talking about gas-van, that is right. I can not say what definite orders the physician of the group received concerning this. I know nothing about that.
QYou were at the Einsatzgruppe Headquarters in Simferopol, were you not?
AYes, Mr. Prosecutor.
QAnd it's been testified to repeatedly from that witness stand that for a time there was at least one gas van in the courtyard at Simferopol.
AYes.
QDid you ever dispatch this van anywhere?
AI certainly never dispatched it anywhere.
QDid you ever see any requests come in from a Kommando to send a gas van there?
ANo, I don't know of any.
QDid you ever see any orders issued by anyone in the Group Headquarters dispatching the van from the courtyard to a Kommando territory?
ANo, Mr. Prosecutor.
QDid you ever learn who besides yourself ever inspected executions?
ADuring the executions in Simferopol, or in general?
QIn general, any executions. Do you know of anybody in the group staff who was given the special assignment to inspect executions besides yourself?
AMr. Prosecutor, this is a question of great consequence which I have to answer here, I myself was never present when other members of the group staff were carrying out such inspections. Therefore, I cannot say who, when, and where the inspections were made.
QYou misunderstood my question. Did you ever learn - did you ever have any knowledge - did you ever hear it generally talked about did it ever come to your attention that some one besides yourself in the group staff inspected executions?
AIn as far as the captain of the Regular Police Gabel in concerned I know definitely that he carried out such inspections.
QDid Seibert ever inspect an execution to you knowledge?
ADuring my time certainly not.
QDid Siebert ever discuss the subject of executions with you?
ACertainly I talked with Herr Seibert about executions in general. One could not avoid doing this, but not about any particular execution. I don't think so. Perhaps in connection with the Fuehrer order in general.
QDo you recall what was said, whether Seibert expressed himself in any way about executions?
AWhat are you referring to, Mr. Prosecutor. I said I talked to him in a general way.
QCertainly. But, I asked you next, do you recall what was said in any of these conversations? Do you recall if Mr. Seibert expressed himself that he was for executions or against executions, if he liked them or didn't like them? Did he ever make any remark about his own feeling in the matter?
AI understand you now, Mr. Prosecutor. That is the subject of any discussion possible at all and I believe not only in as far as Seibert personally is concerned but concerning everyone. I can assure you here that there was not one man who agreed to these measures and agreed to this order. But whenever these matters were discussed everybody was seriously concerned. To be sure, we were very worried about these matters and yet we were helpless and that is perhaps, to put it quite briefly, what we talked about during such discussions.
QBut you never heard Herr Seibert or any one else say that any one had the intention of not carrying out the Fuehrer order, did you?
ASuch statements I did not hear, no.
QNow - -
AIf I may add here I understand the question to mean that someone might have refused to carry out this order. I just said I understood the question to mean, whether I heard that Herr Seibert or any one else ever made statements to the effect that they would not carry out this order
QNow in Seibert's affidavit, which is in Document Book III-D, page 34 and in your document book, Mr. Schubert, on page 60, document NO-2859, Prosecution Exhibit 158, in paragraph 2 of Mr. Seibert's affi davit he states that you prepared reports from time to time.
In your comments yesterday you made some reference to this but I have foregotten what you said.
Will you repeat for my benefit what type of reports you made, how often you made them, where you sent them, and whether or not they were submitted to your chief or to the deputy chief of the staff before you sent them off?
AI testified that I never prepared the reports written by Mr. Seibert under figure 2 Of this affidavit, but that from time to time I prepared documents to be used as basis for the reports which concerned changes in personnel and location within the group.
How often I made such compilations, I cannot say.
Certainly it only occurred very rarely because conditions did not change very often during my time of service as far as garrisons and personnel are concerned.
QDid it ever revolve on you to write a report, an operational situation report, under the direction of either General Ohlendorf or Mr. Seibert?
Did you ever have that task of all?
AA situation report?
QWhat I mean by that, Mr. Schubert, is, did you ever have to take separate reports of Kommandos and compile them into a written re port in view of the fact that Mr. Seibert was away on leave or some unusual reason why Mr. Seibert couldn't make this out, did you ever have to substitute for him in drawing up or compiling these reports?
AAt no time, Mr. Prosecutor.
QThese reports that you did make out did you submit them to the group chief before sending them on?
Having him correct them or change them?
Did you submit it to the group chief?
AMr. Prosecutor, May I say first these were not reports of my own, but these were quite formal parts of a report written at the beginning of a report and I really don't know in detail whether these matters I submitted to the chief or Herr Seibert before hand.
I rather think that these documents made out by me were used by the clerk exactly as they were and that the compiled report was then signed.
QNow did you join the Hitler Youth voluntarily.
AOf course, Mr. Prosecutor.
QYou did not object to your transfer to the Party when you became of age to join did you?
AWhen being transferred to the Party, being 19 years of age at the time, I did not object to it. It never occurred to me.
QNow, did you ask for or did you seek employment in the SD for the first time. That's when you first went after you lef the lawyer's office. Did you apply for this employment or was this position offered to you?
AIt was offered to me. I reported there. I was approved and I was promised the position and I did not object to it and on that occasion I joined the SD.
QBut you went to the SD office, to make application and after the interview which proved mutually satisfactory you were given work in the SD, but you yourself went there, isn't that true.
AMr. Prosecutor when joining the SD I did it on my own initiative.
THE PRESIDENT:The Tribunal will now take its afternoon recess.
(A recess was taken.)
THE MARSHAL:The Tribunal is again in session.
MR. WALTON:With permission of the Tribunal I will conclude this examination.
THE PRESIDENT:Proceed.
DIRECT EXAMINATION (Continued) BY MR. WALTON:
Q.Mr. Schubert, did you over make any attempt to get released from the party?
A.No, Mr. Prosecutor.
Q.Did you ever seek to be transferred from Amt III, which is the SD, to some other amt in the RSHA?
A.I could not have made such an attempt.
Q.You could have made such an attempt prior to the outbreak of the war, couldn't you?
A.Before the war and until 1943 I was a member of Office I. I had no cause for my part, to apply for a transfer to another office of the Reich Security Main Office.
Q.Did you ever object to being transferred from office I to Office II*
A.I raised no objection and could not have raised such.
Q.Now, you were a member of the SS, were you not?
A.I was a member of the special SS formation SD.
Q.Now, you knew when you became a member of the SD you would also become a member of the SS, didn't you?
A.At the time when I joined I did not, Mr. Prosecutor, not yet.
It would have been imaginable that I could have remained a member of the Hitler Youth.
The membership in the SS formation SD was not an unconditional consequence of the membership in the SD.
Q.It didn't occur to you to object when they informed you that you were a member of the SD formation of the SS, did it?
A.Mr. Prosecutor, it never occurred to me to raise an objection against this when I was transferred from the Hitler Youth to the SS formation SD.
Q.Now, according to your service record -- May it please the court, I would like to give that citation again in case it is not before you. Document Book III-D, Page 99 of the English text, 146 of the German text, Document 3244, Prosecution's Exhibit 172. I am now about to make specific reference to page 102 in the document book, which is page 149 of the German text. It is the last page in the document book. Witness, will you indicate please, to me when you have found that page 149 of the German text?
A.I have got it, Mr. Prosecutor. It is the notice about my membership in the Hitler Youth.
Q.Well, maybe it is on a different page in your book, but I am specifically interested in the last column which says SS schools. Now, according to the information that is in my book you attended SS schools from 15 October, '36, and 26 October '38. Does that appear in your copy?
A.No, Mr. Prosecutor, this must be a mistake in the copy in your document book, because these are the dates which refer to my active service in the Army. In the original document it can certainly not be contained. I cannot imagine that it could be.
Q.Then this evidently is an error in copying, but these are the service schools or Wehrmacht schools which you attended, is that correct, and the dates, are they correct ?
A.The dates are correct, but those were no schools of the Army, but that is the Army unit with whom I served actively as a soldier.
Q.Look on page 150 of your Document Book. Now, on this page there are some dates given.
Is that a Wehrmacht school or an SS school?
A.Mr. Walton, it is neither an Army school nor an SS school, but it says here under the column "Reichs Heer" -- that is the Reich Army; and there it gives the date 15 October 1936 until the 29th of October 1938;and after that it says the -- it gives the troop unit in abbreviated from with which I served -- that is, the Armored Signal Battalion 39.
This is very clearly, simply an Army unit.
Q.I wanted to get that clear there for the benefit --- My document book and your document book are not in agreement on that point.
From my book it can be assumed that during those dates you attended some SS school, but your explanation has cleared it up.
You have testified at some length in your direct examination concernin your interrogations and particularly about matters which you allege you were not allowed to change.
When did you inform your counsel about these allegations which you made yesterday concerning changes in your affidavit?
A.I can not remember the date, Mr. Prosecutor, but at the latest it was before Mr. Wartenberg was examined here in the witness stand.
Q.Between the time you received your copy of the indictment and the time when Mr. Wartenberg was examined.
you are sure of that?
A.Yes. Yes, it must have been between those dates.
Q.And did you tell your counsel that the corrections which were made were dependent on the permission of Mr. Wartenberg?
A.I certainly told that to my attorney.
Q.And did you also tell your counsel that you intended to make certain corrections which were not approved by Mr. Wartenberg and were therefore not made?
A.Yes, I told him that, too.
Q.Well, you were present when it was determined by the Tribunal that Mr. Wartenberg would be called as a witness, were you not?
A.Yes, I was present.
Q.Did you confer with your counsel as to what questions your count should put to this witness in your behalf?
A.Yes, I discussed this with my attorney and I merely regretted very much that the announcement of this witness was given at a very late date so that we had only little occasion to discuss this, and this was especially true for me because I had extensive material to discuss with my attorney about this examination.
Q.Well, why didn't you insist that your counsel bring out matters of this correction fully for Mr. Wartenberg?
A.Mr. Prosecutor, I believe that my attorney skid Mr. Wartenberg quite Specifically Whether a discussion about this took place, between me and Mr. Wartenberg about those changes which I wanted to make.
Mr. Wartenberg Was asked about this.
Q.One question that -
A.I don't think it was only one question. Certainly there word two topics and perhaps I may quote them.
Q.Well, you were present when Mr. Wartenberg was cross examined by your counsel, Were you not?
A.Yes.
Q.Well, why didn't you insist to your counsel that he go further into those matters and go further into the facts about which you testified at great length yesterday?
A.Mr . Prosecutor, I am of the opinion that here I am represented by an official attorney whom I can not force to do this or that.
This is exclusively a matter of confidence -- a confidential matter.
I have no Way of influencing my attorney into asking certain questions.
Q.Mr. Witness, it is your case, not your attorney's case. The responsibility for your defense rests on you.
However, we will leave that.
Isn't it a fact that these topics about these corrections were dis cussed most fully with you when you were preparing your direct testimony?
THE PRESIDENT:I would like to interrupt here to say from the Bench that there is nothing in the examination conducted by Dr. Koessl which would suggest in the slightest that he did not ably, fully and comprehensively represent his client according to the best traditions of the profession.
MR. WALTON:May I continue, your Honor?
THE PRESIDENT:Yes, you may.
BY MR. WALTON:
Q.Didn't you discuss these topics most fully with your counsel when you were preparing your direct testimony?
A.I believe I told my attorney everything that I had to say about it.
Q.Were you satisfied with your attorney's direct examination of Mr. Wartenberg -- cross examination of Mr. Wartenberg when he was on the stand?
THE PRESIDENT:Well, Mr. Walton, I don't think that that is a question which the witness should be called upon to reply to.
He has confidence in his attorney, and his attorney presented his case.
Now, I think you can ask him any question in connection with the affidavit and what he stated here, but with regard to the relationship between client and attorney, I believe that a certain amount of deference should be shown.
MR. WALTON:Your Honor, the only thing that puzzles the Prosecution in this -- and the Prosecution thoroughly agrees with the statement just made from the Bench -- but we are still puzzled as to why certain extraneous matters came out yesterday concerning these interrogations which were never asked -- put to Mr. Wartenberg when he was on the stand and they only came out when they know that he can't be recalled, when he is beyond the jurisdiction of the court.
Those are the matters which I want to probe into.
INTERPRETER LEA:Will you please repeat that. Just the last portion.
MR. WALTON:When the matters concerning these interrogations were brought out for the first time and were not sifted from Mr. Wartenberg when he was on the stand, it is extremely puzzling to the Prosecution that they should come out at this opportunity when Mr. Wartenberg is now beyond the jurisdiction of the court.
And I desire to probe into them to see whether or not they are second thoughts of the defendant, so to speak, appearing after the opportunity of the cross examination of Mr. wartenberg has passed.
That is my only intent behind this series of questions.
DR. KOESSL:Your Honor, I want to just give an explanation to this.
I asked Mr. Wartenberg about everything. I knew about these interrogations.
Rather, what I knew about the interrogation I did ask Mr. Wartenberg here, and as to what was discussed here beyond that yesterday were only matters which the witness was asked.
But we would have never asked these questions in such a crude form.
I was of the opinion at that time that it was completel sufficient in order to indicate everything which is necessary and I asked Mr. Wartenberg the question whether he had threatened the witness or not.
I do not know any point which I did not discuss.
MR.Walton: The point which I am not satisfied about and which impressed me yesterday was the exchange between this witness who was at that time an interrogatee concerning the changes in his affidavit.
I read last night -- I don't have it before me now -- the questions which Dr. Koessl asked the witness Warternberg.
They were germane, they were pertinent, but I saw nothing in there, sir, concerning the refusal of the Prosecution' agent for this witness to make changes in his affidavit.
And that is what I want to get to the bottom of.
THE PRESIDENT:Mr. Walton, I know that you are disposed to be entirely fair about this, and we would like to submit this observation, that Dr. Koessl Proceeded with the material that he had at hand, and it must be admitted that Mr. Wartenberg was brought into court without notice of a great length of time, so that defense counsel may not have had an opportunity to delve into every little angle of questioning which could be put to Mr. Wartenberg.
At any rate, this is something which the Prosecution may argue at the proper time.
We doubt that much can be elicited from the witness in interrogating him about matters which have to do with the relatio ship between client and counsel.
Now, he has given the explanation that the wasn't much time allowed for a conference with his attorney on all features of the questioning.
Dr. Koessl did question at some length, and the record shows that.
I don't think that much can be gained by probing into "Why wasn't this question put?"
and "Why wasn't that question put?"
MR. WALTON:Sir, the Prosecution is only interested in knowning tha Such an important feature as the ability to make changes and the fact that he testified at great length yesterday.
THE PRESIDENT:He gave an explanation yesterday. The probative value of that explanation of course is to be evaluated eventually, but that is the explanation that he made, and even if the question had been put to Mr. Wartenberg it would still remain to the defendant to explain why he didn't make those changes in the affidavit.
Well, it is suggested by Judge Spade:
Of course, you have the right to inquire into it, and you have inquired into it; in your very cross examination you go into that.
If there is any other question you wish to put, the Tribunal will permit it, but we do not look with favor on any question which seems to cast a reflection on this relationship between attorney and client.