1947-01-28, #4: Doctors' Trial (late afternoon)
DR. SFRVATIUS (Counsel for defendant Brandt): Mr. President, I looked through the document and I found that it contains an important mistake. In its introduction it refers to two plans, which are also being mentioned in the record. There are two plans which were supposed to have been compiled in Dorsten. There is a mistake contained in that document. Karl Brandt was never at Dorsten.
These two charts were compiled after a discussion lasting one hour. The charts were very doubtful. During these discussions the charts were drawn and the views were discussed which Brandt held about these agencies. If this document is to be submitted here these charts have to be attached, including the interrogations which were made in that connection. That happened in Kranzberg.
This is an essential point, and I should further mention that another chart was submitted here in evidence which was combined from these two original charts. I don't have the chart at my disposal at the moment, but maybe the Tribunal can remember that Karl Brandt struck out all the notes that went with that chart. In that document it is stated that the correctness of these charts is confirmed. The word "Correctness" can only refer to the original charts, but not to the fact that any consequence can be drawn from these charts.
Furthermore there are many omissions in that text. In twenty pages there is an interrogation lasting about an hour and a half. Actually more was said. A few mistakes are contained in the record itself, especially with reference to the Reich Research Council. There you find a wrong date. On Page 11 it says: "Q. When were you a member of the Reich Research Council? A. It may have been in 1943 or 1944."
He may have been mistaken in his answer because it was actually 1942.2 when he became a member. In the original interrogation, there are corrections made on page 3 where dates were altered, so it is probable that a mistake arose later. These alterations in the original were made with pencil. Exactly by whom they were made and when, I cannot tell.
There is another obvious mistake on page 14. It also shows that the document was not compiled correctly. It reads as follows:
Q: I assume that you referred to a Fuehrer decree about that question?
A: Yes, in March of 1944. I am sorry, in February, 1944.
It is known that this decree dates from the first of March, 1944. There are further mistakes contained in that document. I shall not refer to them in detail. On page 16, it is mentioned that this interrogation was made under oath, but the document itself does not show that. According to my opinion, this document cannot be admitted. For formal reasons, I object to its admission and I shall refer, also, to statements made before the adjournment. That is all I have to say.
MR. McMANEY: If the Tribunal please, the remarks of Dr. Servatius, at best, indicate a mere normal human frailty as far as this transcript is concerned. I would be the last person in the world to say that it is letter-perfect. You always find mistakes even in the best of transcripts. However, I do submit, that it is as accurate as any interrogation report that is apt to be submitted to Brandt, I think the questions indicate it was in Dorsten. That is typographical error It has reference to a prison camp known as Dustbin. However, it is immaterial to me where these charts were made. I do not think it is necessary to have these charts attached so the document may be admissible.
As a result of this interrogation, another chart was drawn up and sworn to by Karl Brandt. It was submitted to the Tribunal. It is now in the record. The so-called mistake on dates is not really a fault in the transcript in at least one instant. I happened to have been present during the course of the interrogation and I directed that a question be put to him as to when he first became a member of the Reich Research Council.
My recollection is that he quite clearly said 1943 or 1944. I am happy to see his counsel correct that to read 1942. I, myself, thought, at the time, he was placing the date rather late. However, that is what he said. That is what was taken down.
I also think February, 1944, was the date he mentioned with respect to the Fuehrer decree which we of course very well know to be March, 1944. Those are things that cannot be controlled. That is what the man in response to the question. That was taken down. That is what appears in this transcript. I submit that the document is very clearly admissible.
THE PRESIDENT: Counsel's objection is overruled. When the Defendant, Karl Brandt, takes the stand, he can explain it any way he pleases. He can bring before the Tribunal his theory of what was said. Obvious mistakes can of course be corrected.
MR. McHANEY: This, then, is Prosecution's Exhibit 441. As I have stated before, I do not wish to read the entire interrogation. I would first like to call the Tribunal's attention to a question appearing at the bottom of page 2 of the English translation, which is the second question at the top of page 4 of the original.
Q: What exactly did Rostock do?
A: Rostock at first took care of questions concerning universities, that is to say, he saw to it that the highest possible number of teachers came and that the number of students remained high. Later he picked out single tasks which had resulted altogether, practically in contact with the Reich Research Council. Among them were the questions of Penicillin, Kripps serum, as well as those of the whole literature, things that altogether were meant as an attack against medical education. Restock on my initiative, interfered then to stop that. Furthermore, Rostock had had a series of conferences concerning even the economic aspect, i.e. production together with what had to be done by the doctors.
The answer to this question merely indicates a collaboration to some extent between Restock and the Reich Research Council. I submit that the answer to the question is either garbled or a garbled answer was given it is one of the two.
In any event, we read this into the record simply to show that there was cooperation and collaboration between the Defendant Rostock and the Reich Research counsel.
The next series of questions appear on Page 7 of the English translation. It is about the middle of Page 11 of the original.
Q: What was your position in the National Research Council?
A: I was a member of the National Research Council without any actual office until March 1945.
Q: But you were a member of the National Research Council?
A: Yes, I was a member but without any function at all. In March, I believe it was March 1945, I was commissioned by a special ordinance which was signed by Goering to consolidate the problems and tasks of medical research within the compass of the National Research Council.
Q: Was that not in the year 1944?
A: No. It was in 1945, about 2 or 3 weeks previous to my arrest in Behlens. This, moreover pertains also to what I have said before.
Q: Are you sure that you held no office in the National Research Council?
A: I held no office in the National Research Council. From 1944 on the lists issued monthly wore sent to me.
Q: When did you become a member of the National Research Council?
A: It may have been in 1943 or 1944.
I read this excerpt simply to prove that Karl Brandt was, in fact, a member of the Reich Research Council. We have boon advised that the dates given, 1943 or 1944 are a mistake, it should be 1942. Of course that is a matter which can be explained when the Defendant takes the stand if he does. I would also like to suggest that while there may be some difference about what holding an office in the Reich Research Council is, that there certainly can be no dispute about the fact that the Defendant Karl Brandt, along with other heads of ministries, such as Conti, wore members of the so-called Presidential Council of the Reich Research Council.
The Tribunal requested that we obtain a list of the affidavits which were provisionally admitted due to the lack of a certificate, at that time, showing the authority of certain employees of the Office of Chief of Counsel to administer oaths in connection with affidavits.
The first affidavit to be provisionally admitted was Document Number 372. It is an affidavit of Rudolf Brandt attested to by Walter H. Rapp. It was provisionally admitted as Exhibit 252.
Document Number 429 is an affidavit of Defendant Hoven attested to by Ivan Devries on 24 October 1946. It was provisionally admitted as Prosecution Exhibit 281. The affidavit of Mrugowsky, Document Number 423, attested by Herber Mayor, on 17 October 1946, was provisionally admitted as prosecution Exhibit 282.
Document Number 370 is another affidavit of Rudolf Brandt attested to by Walter Rapp and provisionally admitted as prosecution Exhibit 294.
Document Number 885 is an affidavit of Schuh attested to by Guy Favarger on the 18th of November, 1946. It was provisionally admitted as Prosecution Exhibit 314.
Document NO-883, affidavit of Eyer, attested to by Guy Favarger, 18 November 1946, was provisionally admitted as Prosecution Exhibit No.320.
Document NO-444, another affidavit of Rudolph Brandt, attested to by Walter H. Rapp, on 23 October 1946, was provisionally admitted as Prosecution Exhibit No.329.
Document NO-474, affidavit of Koesler - no, Knoisler, I guess it is, objected to by Fred Rodell October 14, 1946, was admitted as Prosecution Exhibit No.332.
Document NO-427, affidavit of Hubor, attested to by Fred Rodell 4 January 1947, was provisionally admitted as Prosecution No.431.
Document NO-1428, affidavit of one Wesse, and was attested to by Fred Rodell on 3 January 1947, was provisionally admitted as Prosecution's Exhibit No.432.
Those are the only affidavits which were specifically objected to on the grounds that the person who attested to the affidavits was not shown to be authorized to administer an oath. However, there were subsequent initial objections male on the grounds of several more affidavits, which would fall within that objection, although at that time specifically raised with the documents, and wild are covered by the certificate of General Telford Taylor, which we have submitted to the Tribunal, and I might note that there are five of these.
The first one is Document 3865-PS, affidavit of S.A. Bruck Mueller attested to by Alfred II Booth, 2 April 1946, which was admitted as Prosecution's Exhibit 365.
Document N0-720, affidavit of Schmidtmann, attested to by Fred Rodell on 8 November 1946, and was admitted as Prosecutions Exhibit No.366.
Document NO-817, affidavit of Gutckunst, attested to by Fred Rodell, 20 November 1946, was admitted Prosecution's Exhibit 368.
Document NO-818, affidavit of Sprauer, attested by Fred Rodell on 19 November 1946, was admitted as Prosecution's Exhibit No.373.
Document NO-872, affidavit of the defendant Rose, attested to by Ivan de Vries, 3 December 1946, was admitted as Prosecution' Exhibit 408.
That, if the Tribunal please, covers all the affidavits as to which there could have been any question on the grounds of the objections there were not raised on 3 January 1947, and, I would like to have the record now show that these affidavits are finally admitted into evidence.
THE PRESIDENT: Mr McHaney, have these exhibits been made to show the dates on which the statement or affidavit falls were made after the term of appointment of the persons who took the affidavit or statement?
MR McHANEY: Yes, the dates which I read after each affidavit that it was attested to by so and so on such and such a date have been Clocked against these dates in certificate as to when the named person was first vested with authority to administer oath, and all of these affidavits do fall within that time limitation.
THE PRESIDENT: That is quite correct.
DR. GAWLIK: The counsel for the defendant Hoven. The Tribunal and counsel, I would like to a draw the attention of the Tribunal to the fact that I with reference to the affidavit of the defendant Hoven NO-429, Exhibit 282, objected for the very reason and since this affidavit was compiled in the English language, that the defendant Hoven does not knew the English language sufficiently, and the order to make an explanation on the affidavit in its importance to the Tribunal is at hand, and reciting that so far as I remember the decision in reference to the final admissibility would be postpone until such time that the defendant Hoven will be called to the witness stand, I, therefore, ask you not to decide today as to the final admissibility, but only at the time when the defendant Hoven be on the witness stand.
THE PRESIDENT: Counsel for the defendant Hoven is correct in the statement which he has made. Has counsel for the defendant Hoven been furnished a German translation from the affidavit.
MR McHANEY: He indicates he has been furnished the German Translation.
THE PRESIDENT: The ruling on the admissibility of this affidavit referred to by the counsel for the defendant Hoven will be reserved until either the Prosecution proves that the defendant Hoven does understand the English language, or when he is on the stand and can be cross examined, or examined, concerning this affidavit.
MR. McHANEY: Would the Tribunal care to make a ruling on the lists of affidavits which I have just read?
THE PRESIDENT: Yes, I was just coming to that, to the disposing of these exhibits raised by counsel. He affidavits provisionally admitted, which have been listed and referred to by counsel for the Prosecution, will be admitted in evidence as exhibits in the case. As to all tie other exhibits which have been offered and to which no objections have been made, they are all considered as admitted in evidence in the case. Hereafter, I shall say, any affidavits that are offered in evidence to which no objection is made on the affidavit referred to as an exhibit will be considered as admitted in evidence without a further specific ruling that it is admitted in evidence.
MR McHANEY: There are three other affidavits at least which are still in an unsettled state, and the Tribunal will recall that these were affidavits taken in Austria, and they concern the Sea Water experiments at Dachau, and we have been endeavoring to introduce the documents which have been objected to on the grounds that no oath had been administered; that they were unsworn statements.
I think they were provisionally admitted subject to the Prosecution obtaining a sworn statement of identical character. Those have not been forthcoming from the Austrian authority as yet, but I am advised that at least two of them are in the mail, and we would like, of course, permission to submit sworn affidavits from these persons when they are received.
Those were Prosecution's Exhibits Nos. 138 and 139 and No.140.
THE PRESIDENT: The Tribunal's ruling will be considered as holding open the Prosecutions request for the privilege of receiving in evidence in the case in chief these affidavits when they are received.
MR. McHANEY: A similar character of affidavit, or rather of statement taken before the public prosecutor in Frankfurt concerning certain aspect of the Euthanasia program as it applied to half Jewish children, as I recall, and on that occasion I think that the document was not admitted even provisionally, but I would, of course, like the privilege or right to submit into evidence as the Prosecution's exhibit the document as soon as it has been sworn to; it may have been sworn to, but we have not procured the translation as yet, but it should be prepared and offered very shortly.
THE PRESIDENT: The Prosecution may have the right to offer the document when it is received in proper form, subject, of course, to any objection on the part of the defense.
MR. McHANEY: So with that reservation the Prosecution now rests its case in chief.
THE PRESIDENT: Just a moment, counsel. Let the record show that the Prosecution on this date (28 January 1947) has announced that it rests its case in chief, the announcement having been made at 3:37 o'clock in the afternoon of 28 January, 1947, this being the twenty-fifty actual trial day in this case.
I would like to call the attention of the Tribunal to the fact that the Tribunal has not been furnished with a certain document, which was supposed to be furnished, namely, a photostat of the skeleton collection in Strassbourg, and also certain German documents of English translation which have been presented today.
DR. GAWLIK: Dr. Gawlik, counsel for the defendant Hoven. If the Tribunal please, and counsel, the Tribunal yesterday ruled that document NO-1063 be admitted, and we are surely concerned with that report, the Agency for the investigation of War Crimes at Amsterdam. This report con tained a number of protocols of witnesses.
I now make the application that the Prosecution Should submit the following witnesses for purposes of cross examination.
One: Hans Vondching in Apeldoorn, page 13 of the German translation of the report. Second: Jan Antonie van Loenwarden in Fladigen, page 13 of the German translation, and Third: Johannes Peter Schalker; page 15 of the German translation.
MR. McHANEY: The prosecution, of course, grants the right of defense counsel to make his application for the procuring of these witnesses. However, we shall resist on the ground that it constitutes something in the nature of a collateral attack on the report of a duly constituted war crimes commission of one of the allied nations. These reports are specifically admissible under Ordinance No. 7 end 1 feel quite sure that provision was inserted to shorten the proof in such cases as this, and if the defense is to be afforded the full opportunity of going into the complete basis of such reports, why, of course we will be here for a very, very long time. We shall be happy to submit our objections, however, in writing if and when defense counsel submits his request for these witnesses. Of course, there would also be a problem as to whose witness he would be upon his appearance; whether a prosecution witness under cross examination or a defense witness. That also is a question that we will deal with in our written objection.
DR. GAWLIK: I ask to cross-examine that witness and further that I don't want to discuss the report with him but merely am interested in the testimony of the witness. I am going to question him about the points he testified on and I would not have the right to do so if the prosecution would not submit this witness for cross-examination.
THE. PRESIDENT: Counsel for the defendant Hoven may request that the witnesses be summoned and in his request state the purpose for which he desires the witnesses to be summoned. That application would be submitted before the prosecution and the matter will then be submitted for the Tribunal.
DR. GAWLIK: I ask that the prosecution submit this witness to me for the purpose of cross examination.
THE PRESIDENT: That request should be included in the application of the counsel for the summoning of the witness. Should the Tribunal receive from Dr. Seidel, counsel for defendants Gebhardt, Oberhauser and Fischer, a request that he be permitted to present the cases of those three defendants together, I assume that would also include the request that this opening statement on behalf of those defendants be made at the same time as his one statement.
Is there any objection of this procedure being followed by counsel for the defendants named on the part of any other defense counsel? Is there any objection on behalf of the prosecution?
MR. McHANEY: No objection, Your Honor. We think it's a very sensible suggestion.
THE PRESIDENT: It appears to the Tribunal that the plan outlined by counsel for defendants Gebhardt, Oberhauser and Fischer would be advantageous not only from their standpoint but from the standpoint of the prosecution of the Tribunal and the request is granted. Further, in connection with the opening statement on behalf of the defense, the Tribunal would inquire whether the defendants have made any arrangement to present at one time discussions of certain general charges against many of the defendants.
DR. SERVATIUS: Mr. President, there was no agreement among defense counsels to distribute certain statements; however, our task will be distributed in such a manner as to avoid duplication. Of course, it is up to everyone's own discretion to present his case in such a manner as he wants to.
THE PRESIDENT: The Tribunal will consider not only the evidence but the question of outlining the defense in the opening statements to be made by the defense. The Tribunal has allotted to counsels for the defendants two days in which to make these opening statements and duplications, at least as suggested by counsel for defendant Karl Brandt, will be rather burdensome to counsel and the Tribunal and mere duplication would be of no benefit to anybody.
DR. SERVATIUS: Mr. President, due to the fact that the case of Dr. Brandt and the case of Dr. Handloser are more extensive, there arises the fact that the first two opening statements will be a little longer. As far as I am informed, the majority of the other statements are shorter so that the both days which aye at our disposal will not be exceeded at all. We have been informed by cur colleagues that they will speak less and give us this time to our disposal. There is the defense counsel Pribilla and that applies to counsel for Hoven--no, it isn't Hoven, it is Mrugowsky--who agreed to that, so that we are sure he will not exceed that time.
THE PRESIDENT: It's evident to the Tribunal that there must be some basic theory to the defense, on the part, at least, to acquit a number of defendants. I would ask if defendants' counsel have agreed among themselves as to the allocation of time. The Tribunal has allowed two days and any direction agreeable to the defendants that will consume no more than that time will be satisfactory to the Tribunal but without being advised as to some allocation of time which has been agreed on by the defendants, the Tribunal will not know whether certain counsel might be using more of the time and it will be infringing upon the time of other defendants. If defendants' counsel this afternoon could prepare some statement of the allocation of time which would be useful to the Tribunal, then the Tribunal would have something with which to follow in listening to counsel tomorrow.
DR. SERVATIUS: Mr. President, I shall see to it that a list is compiled giving the approximate time which is claimed by the individual defense counsels.
THE PRESIDENT: That is what the Tribunal desires. Any further matters to be called to the attention of the Tribunal this afternoon?
MR. McHANEY: I would ask if all of the defense counsels have their opening statements translated and whether or not they are now available? I have received a copy of the opening statement of Dr. Seidl for the defendants Gebhardt, Fischer and Oberhauser, but I think that is the only one I have received and I just don't know whether the other defense counsels have secured translations of their opening statements, so I would be interested in obtaining copies.
THE PRESIDENT: Have any of the defense counsels, other than counsels for the defendants named, procured translations of their opening statements in the English language?
DR. SERVATIUS: I have been told that my opening statement has been translated and that the same applied to colleague Nelte. He too has been told that his opening speech has been translated, that it probably will be in the multigraph department.
THE PRESIDENT: The Tribunal would also wish copies of those opening statements in English. Would counsel see that copies are furnished of the translation of these opening statements in English to the Tribunal and to the prosecution?
DR. SAUTER: My two opening statements have been submitted about eight days ago and repeatedly I have made inquiries of the employees in the library--not my employees but employees of OCC--what we ought to do in order to obtain translations. Repeatedly, in fact, that personnel informed me that we, ourselves, would not need to concern ourselves with these translations but that the drafts which we had handed in to have copied would automatically be handed over to the Translating Branch and from the Translating Branch they would then go--the requisite number of the English translations--would go then to both the prosecution and then the Tribunal. In other words, as far as we're concerned, it was not only today or yesterday but about a week ago that we have submitted our material, and naturally after that we didn't concern ourselves with obtaining translations since we had specifically been told that we need not worry about it.
THE PRESIDENT: Counsel is entirely correct. Having furnished the opening statements to the Translating Department, counsel was not obligated to concern himself further with the matter.
DR. SAUTER: I am afraid, Mr. President, I did not understand you. I beg your pardon, I did not under start what you said.
THE PRESIDENT: I stated that counsel for the defense was correct in assuming that after having furnished their opening statements in German to the Translating Department and having been assured that they would be translated, counsel was not under any obligation to concern himself further in the matter.
DR. SAUTER: Thank you very much, Mr. President.
THE PRESIDENT: Would the Secretary General investigate the matter of these translations and see that these have been made and properly distributed. If there is nothing further to he called to our attention this afternoon, the Tribunal will recess until nine-thirty o'clock tomorrow morning and will convene to hear the opening statements of defense counsels.
We understand that these statements will be made by counsel representing the defendants in the order in which they are named in the indictment. The Tribunal will be in recess.
(The Tribunal adjourned until 0930 hours, 29 January 1947.)