The Nizkor Project: Remembering the Holocaust (Shoah)

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                                                  [Page 194]


THURSDAY, 13th JUNE, 1946

THE PRESIDENT: The Tribunal has considered the question of
the time to be taken by counsel in their concluding
speeches. The provisions of Article 18 of the Charter
directing the Tribunal to confine the trial strictly to an
expeditious hearing must be observed, and counsel clearly
could not be permitted to speak at any length they choose.
Necessity dictates that there must be some limitation, or
this already lengthy trial might be prolonged beyond all

The tribunal understands that the prosecution will
voluntarily limit their concluding speeches to three days in
all, and some voluntary limitation should be made by counsel
for the defence. The evidence for the defendants has been
fully heard in great detail, and what is now needed is not a
detailed analysis of the evidence, but a concise review of
the main matters.

The Tribunal wishes to make clear that no admission will be
inferred from failure to mention any particular matter in
argument. On this view, in the opinion of the Tribunal, the
speeches of the counsel for the defence - including the
speech to be made on behalf of all the defendants on the
submission of law - should be concluded in fourteen days in
all. This will allow the defence double the time taken by
the prosecution, both in opening and in summing up. By
mutual arrangement between counsel, these fourteen days
could be apportioned as they think fit, and the Tribunal
would prefer that they make the apportionment rather than
make the apportionment itself.

The Tribunal expects, therefore, that counsel for the
defence will prepare their speeches in accordance with what
I have said, and will advise the Tribunal as soon as
possible of the apportionment of time that they have made.
If they find themselves unable to agree on this
apportionment, the Tribunal will give further consideration
to the matter.

The Tribunal desires also to point out to counsel - both for
the prosecution and for the defence - that it will
materially help the Tribunal if counsel would submit
translations of their speeches at the time they make them.

That is all.

DR. NELTE (counsel for defendant Keitel): Mr. President, the
decision which you have just announced to us has surprised
the defence, since they have not been previously heard with
reference to this question. This appears to us to be all the
more regrettable since the decision is against the most
elementary rights of the defence, because it prevents us
from stating in court what, in this most important trial,
has to be said with regard to the defendants and the
problems with which they are confronted.

At this moment we are not yet in any position to survey the
entire material. If I were to state, without wishing to
forestall the other defendants' counsel, the case of the
defendant Keitel as an example, you will understand that the
material alone which has appeared after the
cross-examination puts me in an extremely difficult
position. I am sure that a large number of the other
defendants' counsel as well will share my opinion that these
matters cannot be dealt with collectively. While every
attempt should be made to deal comprehensively with these
matters, nevertheless, in my opinion, the cases of the
individual defendants should be dealt with separately.

                                                  [Page 195]

Fourteen days appears to me a very short time. In practice,
it is almost impossible to make a fair apportionment, that
is, to deal properly with the individual questions.

Might I suggest, therefore, that the decision which you have
just announced - I am not sure whether it was only a
suggestion - should be reconsidered after consultation with
the defence. Without wanting to anticipate on the reasoned
statement which all the counsel for the defence intend to
make, I wish, nevertheless, formally to raise objection now
to the decision limiting the defence beyond the limits of
what is possible.

THE PRESIDENT: Do counsel either for the prosecution or the
defence wish to make any other observations to the Tribunal
upon this subject?

MR. DODD: Mr. President, I would like to state that I take
exception to Dr. Nelte's argument that it is a violation of
an elementary right of these defendants, because in our
country, I think I am quite right in saying that, it is
quite common practice for our courts to restrict counsel in
the matter of final argument, even when -

THE PRESIDENT: I am sorry, Mr. Dodd, but I am afraid there
are three voices, English, French and Russian coming through
on the Russian circuit.

(The proceedings were suspended temporarily.)

THE PRESIDENT: Mr. Dodd, the interpreter thinks it is all
right now.

MR. DODD: What I wish to say very briefly is that with
respect to Dr. Nelte's argument that a restriction in time
with respect to the final argument, is a violation of a
fundamental right of these defendants, I wanted to call to
the Tribunal's attention that in our country it is, I would
say, rather common practice for our courts to restrict
counsel in time in final argument, even in jury cases where
there is much more need for argument, as the Tribunal has
pointed out.

THE PRESIDENT: Does any other counsel wish to make any other

DR. VON LUDINGHAUSEN Counsel for the defendant von Neurath):
Mr. President, to begin with, I should like to make some
remarks regarding the limit imposed upon our time. If we are
limited to 14 days, then that means approximately four hours
per defendant for our final speeches. But in reality these
four hours are not four hours, since, because of the
technical arrangements in this court room, we are forced to
speak much more slowly than we would speak in a direct final
speech, in a free statement. That is to say, from the four
hours left to us on an average, we must deduct the time
which we lose through having to speak more slowly.

In my opinion, four hours would in reality amount to only
three hours. Mr. President, I believe that if you consider
these facts you will agree with us in these three hours we
cannot possibly do justice to all the material available for
every defendant and thus fulfil that purpose which the final
address is intended to fulfil.

The main purpose of this Tribunal, which is unique in
history, is to establish the truth; but we cannot establish
the truth by merely making an arbitrary selection of
individual actions. Our main task must be to show what led
to these individual actions. Accordingly, it is for me in my
capacity as defence counsel for the defendant, von Neurath,
who was the responsible leader of the foreign policy of the
Reich until 1938, to show that all the actions of which my
client is accused, were logically and unavoidably the
outcome of the circumstances as they developed This sequence
of historical events explains everything that happened up to
the day when my client handed in his resignation. But I can
make that clear only if I am able to present the different
stages of development, at least in broad outline. Moreover,
gentlemen, if you take into consideration that I still have
to deal with the activities of my client as a Reich
Protector, which for legal reasons, is not altogether as
simple as it might appear, you will no doubt admit that I
cannot possibly do that in a period which is tantamount to
only three hours.

                                                  [Page 196]

I want to reply to the statement of the American prosecutor,
that we are not before an American court here. I have just
been trying to make enquiries about this, and there is no
information to the effect that in international tribunals,
such as, for instance, the Hague Courts, or the courts in
Egypt, a limitation has ever been imposed upon the duration
of the final speeches of the defence. That is why I beg you
to take into consideration that we are not before an
American court here, but that this is an international
tribunal, and that this international tribunal goes far
beyond anything that has existed before. It also goes far
beyond the task of any military tribunal in Germany which
has up to now dealt with small sections of this tremendous
complexity and never have the military tribunals imposed a
time limit upon the defence when making their final

Gentlemen, if you take all this into consideration, then I
hope you will allow me to ask you once more to reconsider
your decision and not have us give the impression that we
are not able to do our duty in presenting our cases for our

GENERAL RUDENKO: Gentlemen of the Tribunal, I will only add
very little to what my colleague Mr. Dodd has already said.
The penal code of our country admits the right of the
Tribunal to impose limitations upon both the prosecution and
the defence in their final plea.

I believe that the argument of the defence, to the effect
that this decision of the Tribunal is putting limits on
their rights and is unjust, is unfounded. In practice, the
defence is already submitting evidence now in the case of
their clients, and has every opportunity to give a complete
presentation. I believe, gentlemen of the Tribunal, that
justice does not consist in the endless conduct of the
present trial.

I therefore uphold the argument of Mr. Dodd, and consider
the decision of the Tribunal quite just.

DR. KUBUSCHOK (Counsel for defendant von Papen): Mr.
President, will you please permit me to make a brief
statement? At no stage of the proceedings can the duration
of a trial be foreseen.

At the beginning one cannot foresee the time required and,
therefore, one cannot limit the time which the taking of
evidence will require. Neither can the following stages of
the proceedings, the length of the statements presented by
the defence be forecast, and cannot therefore be limited.
The value of the defence - and, after all, that is the only
reason why a defence is included in these proceedings at all
- is that a man who is given that professional task and who
possesses the necessary qualifications, must be able to put
before the Tribunal all the material which, after long hours
of work and intimate conversations with his client, he has
found worthy of presentation.

That must be done through such an intermediary; and to what
extent he should state his case is something that he, as an
expert, must be able to decide. Nobody participating in the
proceedings, whether of the Tribunal or of the defendants'
counsel, can even approximately foresee what might be
necessary in this connection.

That is why I believe that no dates should be fixed either
for the case for the prosecution, or the hearing of
evidence, or the case for the defence. During the other
stages of this trial, we have had to contend with the same
difficulties. In limiting the proceedings as to time, we can
only be guided by what is relevant and expedient. Thus in
this court we have witnessed again and again how the
President has steered the proceedings with skill and
consideration, always keeping them within the necessary
limits. I cannot understand why the same procedure should
not be applied to the final speeches, and I believe that the
self-discipline which naturally every experienced counsel
applies to himself, will keep the speeches within suitable
limits. But I honestly believe that no one, with the
exception of the immediate participant, and he probably only
after all the evidence has been heard, can anticipate how
much time will be required, and this, in my opinion,
precludes the imposing of a time limit at this stage. If the
statement made by the Tribunal should be considered as a
suggestion to limit our speeches - and in

                                                  [Page 197]

this connection we are particularly grateful for the
indication given as to the way the evidence should be
handled - then by following the Tribunal's suggestion we
shall most certainly be able to impose upon ourselves a
limitation which will do justice to all parties.

THE PRESIDENT: I do not propose to go fully or at all into
the argument which led the Tribunal to make the announcement
which I made this morning, but I think it would be desirable
for counsel for the defence, before they make any formal
objection to that announcement, to study it. But I do desire
to say on behalf of the Tribunal that that announcement was
not made without consultation both with counsel for the
prosecution and counsel for the defence, and that was done
in closed session, and we heard both counsel for the
prosecution and counsel whom we understood to be
representative counsel for the defence, and they made the
suggestion which they thought right to us at that time, and
we fully considered it. We intimated to them that they
should draw the attention of their colleagues to what passed
at that hearing in closed session. Therefore, it is entirely
inaccurate to say, as Dr. Nelte did, that the announcement
was made without hearing counsel for the defence.

I only desire to add to that, that in the circumstances, the
Tribunal will give further consideration to the matter, but
the suggestion made in the announcement was that the
fourteen days, which the Tribunal thought sufficient for the
speeches for the defendants, should be apportioned
voluntarily among counsel. Those fourteen days are full days
and will not be taken up at all by any argument on the
organizations, and until the defendants' counsel have
attempted to make that apportionment, it must be obviously
impossible for them to know whether they will be able to
make their speeches, which are not speeches that are
necessarily detailed examinations of the evidence, but are
arguments drawing the attention of the Tribunal to the main
points which they desire to draw the attention of the
Tribunal to. The counsel for the defence ought, therefore,
to go into the matter together, as the Tribunal understood
they were doing, and see whether they can satisfactorily
present their speeches within that time. All the arguments
which have been presented to us this morning, were fully
presented to us by counsel for the defence who appeared
before us at the closed session, one of whom has addressed
us this morning.

Now the Tribunal will go on with the hearing of the case.

DR. STEINBAUER (counsel for the defendant Seyss-Inquart):

Direct examination of the witness, Dr. Rainer.


Q. Witness, in answer to the last question put by the
American prosecutor yesterday, you stated that you wrote
your letter with a certain purpose, and I now ask you what
that purpose was?

A. Some time after the Anschluss, there were hostile
activities, intrigues against Dr. Seyss-Inquart and some
other people. They came from dissatisfied radical elements
in Austria and the Reich. They took advantage of Dr.
Seyss-Inquart's hesitant attitude on the 11th of March, his
clinging to the revolutionary line and to the principles of
the two agreements between the two States, to accuse him of
being a separatist, or even worse -

Q. Perhaps, witness, you can be a little more brief.

A. These people seemed to be dangerous, because Burckel,
and, I believe, Heydrich too, were behind them. I considered
these attacks to be unfair and therefore I brought out
certain facts and arguments and worded my report in such a
way that the addressees would understand it and be calmed

Q. So that, if I have understood you correctly, in this
letter you sought to stress the merits of the Party on the
one hand, and to claim indulgence for Seyss-Inquart on the
other hand?

A. Yes. That is how I would express it.

                                                  [Page 198]

Q. Now, my second question. In this letter you mentioned
that Seyss-Inquart had taken a letter of ultimatum to
Schuschnigg. Have you any recollection to the effect that he
himself dictated and had this letter written in his office?

A. Dr. Steinbauer, you mean the letter of ultimatum written
in the afternoon of the 11th of March?

Q. Yes, that is the one.

A. I believe that that letter was written in his office and
I also believe I participated in writing it.

Q. Then you go on to say, in the letter put to you by the
prosecutor, that through the collaboration of Dr. Jury and
Dr. Leopold, Seyss-Inquart had become a State counsellor. I
ask you whether Dr. Jury and Dr. Leopold had any influence
at all on Schuschnigg?

A. No, that cannot have been the intention.

Q. The prosecutor, in support of his statement yesterday,
submitted a second document. It was a speech which you had
made as Gau Speaker in Carinthia. Do you remember that?

A. Yes.

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