1947-01-30, #4: Doctors' Trial (late afternoon)

THE MARSHAL: The Tribunal is again in session.

THE PRESIDENT: The Tribunal has taken note of the questions raised by the defense counsel as to whether, as a matter of law, not a matter of fact, the defendants may be held to answer the charge of conspiracy to commit war crimes and crimes against humanity. This is a basic legal question which, because of its extreme importance, the Tribunal is of the opinion should be answered only after the question has been fully briefed and argued by all parties to the cause. Therefore, the Tribunal will not pass upon the question at this time, but will reserve its ruling thereon until final hearing and after full consideration end argument and will incorporate its conclusions on the question in such opinion and, judgment of the Tribunal as will finally be rendered.

Second: Something was said by the Prosecution immediately prior to the afternoon recess of the Tribunal to the effect that it was not the desire of the prosecution to put any defendant upon proof as to any charge which the prosecution might feel it had failed to establish. In view of the statement of the prosecution, which the Tribunal commends, the Tribunal suggests to the prosecution that it be prepared to make any announcement upon that matter which it wishes to make prior to the opening of the defendants' case on Monday, 3 February 1947.

Third: Concerning questions raised by defendants' counsel as to evidence introduced by the prosecution concerning acts of defendants not specifically charged as crimes by paragraph 6 and paragraphs "A" to "L", inclusive, of the Indictment, the Tribunal announces that it reserves its ruling upon any such question until the close of the case.

Is there any further matter to be called to the attention of the Tribunal?

MR. McHANEY: In connection with the Tribunal's ruling on the second point, I would like to ask if it would be satisfactory if on Monday we made such announcements as we may have to make with respect only to the case of Karl Brandt.

THE PRESIDENT: It appears to the Tribunal that it would be only fair to the defendants if that announcement were made as soon as possible. It might not necessarily be made Monday morning, but, if any such announcement is to be made, it would be well to make it as soon as possible so that the defendants would be advised that as to any such specification or charge it would not be necessary for them to procure witnesses or introduce evidence. That was the only point in the mind of the Tribunal in suggesting that announcement be made Monday morning. The Tribunal is not holding the Prosecution to anything in connection with that matter, and if the announcement, if any, is made as soon as possible, with due regard to the matter which I have just mentioned, that would be satisfactory to the Tribunal.

MR. McHANEY: Very well, Your Honor.

THE PRESIDENT: Does that answer your question?

MR. McHANEY: Yes, indeed.

DR. RAUSCHENBACH (Counsel for Defendant Schaefer): Mr. President, I have a question which has been touched upon neither by the discussion before the recess nor by the ruling which has just been given by the Tribunal. It is a question connected neither with the question of the conspiracy nor with the statements by the Prosecution.

I made the request with regard to the defendant Schaefer that his case be immediately dismissed. I believe that I have understood the member of the Prosecution correctly to the effect that he means that such a dismissal could only be decided upon when the case is being presented. However, when the case is being presented and the presentation of evidence has been completed, then we may just as well wait until the verdict.

It is the practice of the English and American courts to which I have referred, as far as it has come to my knowledge from the literature which has been made available to me, has the effect of finishing the case before the presentation of evidence; that is, after the presentation by the Prosecution when it is already demonstrated that the defendant can not be sentenced. Therefore, I want to point out once more the possibility with regard to the case of Schaefer to make a ruling to this effect before I present evidence on behalf of the defendant Schaefer. That is the question of the dismissal of the proceedings against Schaefer and his discharge from confinement.

DR. WEISGERBER (Counsel for Defendant Silvers): Mr. President, may I be permitted to ask one more question with regard to point No. I? If I have correctly understood the ruling of the High Tribunal, then the decision can only be made on Point I when the defense has made a statement with regard to this question.

In my presentation this morning I stated that I have not taken any stand with respect to the question of the conspiracy because I have joined in the statement of my colleagues, and, therefore, I have not made any statement of my own in this connection in order to avoid repetition. If the Tribunal should desire a statement of all the Defense Counsel who have not touched this question specifically, then I would request the Tribunal to make a statement with regard to this subject.

THE PRESIDENT: I stated that this question would be reserved until the close of the case when all defendants may be heard upon the matter. The ruling of the Tribunal is made strictly without prejudice to the right of any defendant to urge the matter of the conspiracy charge and its inapplicability to any or all defendants.

The right is expressly reserved to any or all defendants. The right is expressly reserved to the defendants to argue and present that question at the proper time at the close of the case.

Upon the question just suggested by Counsel for the defendant Schaefer, which has been suggested by other Defense Counsel, the Tribunal will reserve its ruling upon any such motions, which may be renewed at an appropriate time. The Tribunal strictly preserves to the defendants the right to urge the question which has been suggested. The Tribunal at this time reserves its ruling.

There being no further question to come before the Tribunal, the Tribunal will recess until 0930 o'clock Monday Morning.

(The Tribunal recessed until 0930 hours, 3 February 1947)