1947-06-27, #3: Doctors' Trial (late morning)

THE MARSHALL: The Tribunal is again in session.

THE PRESIDENT: I desire to inquire whether or not stenographers have made a record of the recent occurrence, in the course of which the Tribunal found it necessary to sentence the witness Karl Hoellenrainer for contempt?

MR. HARDY: The court reporter for that time has left the courtroom. We will check if the President desires it to be in the record.

THE PRESIDENT: In order to make the record clear, I will state for the record that the witness Karl Hoellenrainer, having been called to the stand and duly sworn, and a few preliminary questions propounded to him, was requested by counsel for the prosecution to identify the defendant Beigleboeck. In order to do so the witness advanced toward the dock and at approximately 1125 hours on this morning of Friday, 27 June 1947, as he approached the dock, suddenly sprang over the rail of the dock and attempted to assault the defendant Beiglboeck. The witness was promptly placed under restraint, and the Tribunal directed that he be brought before the Tribunal to be punished for a contempt of court committed in open court by his attempted assault upon the defendant Beiglboeck. The witness was asked if he had anything to say in extenuation and simply pleaded his excitement and the strain he was under and that he yielded to the impulse of the moment upon identifying the defendant Beiglboeck in the dock. The Tribunal thereupon sentenced the witness to confinement to the Nurnberg Prison for a period of ninety days for a contempt committed in open court, the defendant to be confined but not put to labor.

MR. HARDY: The prosecution has no further testimony to offer at this time, Your Honor.

THE PRESIDENT: Is Counsel for the defendant Handloser ready to proceed?

DR. NELTE (for the defendant Handloser): Mr. President, gentlemen of the Tribunal, the submission of evidence in the case of the defendant Dr. Handloser was broken off on the 20th of February 1947 by the submission of the document HA 30, Exhibit 51.

The Tribunal has temporarily admitted into evidence a number of documents for the defense. It has accepted them subject to the submission of the proper oath in the prescribed form. In that connection I have to mention document HA 42, which has the temporary Exhibit No. 19, and also document HA 3 which has the temporary Exhibit No. 21.

THE PRESIDENT: Counsel, there has been handed to the Tribunal one file of these documents. Are there no other files available for the members of the Tribunal?

DR. NELTE: I asked the Secretary General to submit these documents to the Tribunal by handing him that file yesterday. I asked him to see to it that the Tribunal would have today available the translated and mimeographed document. I had believed that would be possible by this morning. All the documents have been translated and mimeographed. They have been made available in sufficient numbers for the benefit of the Tribunal.

MR. HARDY: Anticipating further difficulties in the presentation of the defense counsel's supplementary documents, I would suggest that if possible the defense counsel could start out and make an index that the Tribunal can use and that the prosecution can use, such index containing Exhibit No. 1 through to the final exhibit which they wish to introduce. I have before me now about eight or nine document books or supplemental sheets for the defendant Handloser; I feel certain that Dr. Nelte has no intention of introducing each and every document in those eight or nine supplementary editions that I have. However, in order to follow him and in order to follow the future presentation of documents, if we were provided with these indexes, then we could follow the presentation more readily and discard the documents which they do not intend to introduce, and then we could properly assemble the exhibits in one folder or two folders as the case may be, completely disregarding the superfluous documents. I think that would be the only way I could work it out.

I have several documents, and each time Dr. Nelte reads off a number it will take me a considerable number of minutes to find the document involved. We shall go on now and see if we can follow. But in the future if the defense would follow that it would be most helpful.

THE PRESIDENT: The suggestion of the prosecution appears to the Tribunal to be excellent. If that plan can be followed by defense counsel it will make matters easier for the Tribunal and opposing counsel. My question in the first place was directed to the fact that the Tribunal has on the bench only one file of these affidavits. There must be more available. I would ask Mr. Hardy — the secretary is absent for the moment — if during the noon recess he could see if these documents are not available in the office of the Secretary-General so that each member of the Tribunal could be provided with a file.

MR. HARDY: I must say that Dr. Nelte has been most helpful in that he has given me a folder containing the documents which he wishes to introduce as supplements, but I am unable to ascertain what he left off and if he is going to use some of the others, and if these indexes can be provided at a later date, we can proceed with this group of documents which he will offer as supplements and introduce formally now. I presume the Tribunal has one set put in one folder as I have.

THE PRESIDENT: The Tribunal has one set.

DR. NELTE: Mr. President, this file is the one which I personally submitted yesterday, when distributing the documents; however, a number of copies are provided for the Tribunal as well as for the prosecution, and I assumed that these documents would already be in front of the Tribunal at the time I started my submission.

THE PRESIDENT: Evidently the Secretary-General has just arrived.

MR. HARDY: Dr. Nelte does have before him Your Honor, a rather detailed index starting with Exhibit No. 1 and going through Exhibit No. 77 as I see it here, which is just what I was referring to. If he could have that mimeographed, even in the German language as it is now, without translating it, it would be decidedly helpful, and then we could take our document books and supplements and weed them out and have what he has presented to the court.

THE PRESIDENT: During the noon recess you can endeavor, Counsel to assist Dr. Nelte in seeing that the mimeographing process moves along as rapidly as possible.

DR. NELTE: I have just explained that I submitted a number of affidavits during the case of Handloser which received only temporary exhibit number. Before starting the further submission of evidence, I should like to submit these three affidavits again in the proper form, as desired by the Tribunal. This is the affidavit by Shaefer, document HA 42, Exhibit No. 19. Shaefer has now submitted the affidavit in the form as prescribed by the Tribunal, and the same holds true of the affidavit of Professor Rodenwald, which is Document HA 3, Exhibit No. 21, and finally the affidavit of Professor Frey, which is Document HA 52, Exhibit No. 31. I submit these three formal affidavits to the Secretary-General, and I now ask the High Tribunal to convert the provisional admission of these documents into a final admission.

THE PRESIDENT: Has counsel for the prosecution examined these documents? Is counsel satisfied that the proper jurat is attached? The secretary will hand him the original documents.

MR. HARDY: This was merely a formality. At the time that the documents were introduced, we objected to them because of lack of jurat. The three supplementary pages contain jurats duly notarized or signatures sworn to, so the prosecution withdraws any objection.

THE PRESIDENT: It appearing to the Tribunal that Handloser Documents HA 42, HA 3, and HA 52, Exhibits respectively 19, 21, and 31, are now in order, those three exhibits are received in evidence on behalf of the defendant Handloser.

MR. HARDY: I might add, Your Honor, that you will find the affidavits in Handloser English Document Book No. 2; wherein you will find Handloser Document No. 3, which is Exhibit 21, Handloser Document 42, which is Exhibit 19; and in Handloser Document Book No. 3 you will find Handloser Document 52 which is Exhibit 31.

THE PRESIDENT: I will return these three pages to the Secretary, who will see that they are properly attached to the exhibits.

DR. NELTE: I should now like to ask the High Tribunal to give me a decision regarding the admission of a letter written by the prelate, Kreuz. This is Document HA 39, which has been provisionally admitted as Exhibit 41. This can be found on page 3262 of the German record. After the Prosecution had raised an objection to this document, the President ruled as follows:

It appears from the evidence offered that it is an answer to a letter by Dr. Nelte, dated the 4th of January. If Dr. Nelte would submit a copy of the letter written to Dr. Kreuz, the Tribunal would save something before it in order to make a decision. Document HA 39, as it is before the Tribunal, now is clearly not admissible, as it is merely a letter. If Dr. Nelte can submit a copy of the letter to which this is the answer, the Tribunal, will then be able to make a decision regarding the admissibility of Document HA 39 later.

I have tried to have Prelate Dr. Kreuz add to his letter the jurat as prescribed by the Tribunal. On 19 March, 1947, I informed Military Tribunal No. 1 that the Prelate Dr. Kreuz because of basic principles has refused to give an affidavit in lieu of an oath, and I asked the Tribunal to admit the letter without the jurat, since it is of particular value to me with reference to Dr. Handloser's character, and I referred to article III, Ordinance VII.

In my letter of 3 March 1947 I also applied to the High Tribunal, in case the Tribunal should not want to admit this letter in spite of its importance, to approve the Prelate Dr. Kreuz as a witness, and ask him to come to Nurnberg. I have no decision of the High Tribunal in answer to this application, and I am asking you now to tell me whether I may assume that this letter of the prelate Dr. Kreuz, Document HA 39, is finally admitted as Exhibit 41 or whether the Tribunal desires to make any other decision in that connection.

THE PRESIDENT: The Tribunal understands that the matter rests before the Tribunal in exactly the same situation as it was when first presented; is that correct, Dr. Nelte?

DR. NELTE: I have conformed with the wish of the Tribunal and submitted my letter to the Prelate Dr. Kreuz, on 19 March 1947.

The Tribunal desired to see my letter to him in order to be able to decide whether the answer of the Prelate Kreuz can be admitted in evidence.

THE PRESIDENT: Has counsel for the Prosecution any comment?

MR. HARDY: I have no comment to make, Your Honor.

THE PRESIDENT: Upon the record before the Tribunal, the letter from Dr. Kreuz, if I understand his name correctly, is not admissible, and the Tribunal is not disposed to summon Kreuz as a witness.

MR. HARDY: Inasmuch as the letter is a character reference of Dr. Handloser, the Prosecution withdraws its objection without prejudice, even though it doesn't meet with the requirements of the Tribunal.

THE PRESIDENT: In view of the statement of the Prosecution, the letter by Dr. Kreuz to Dr. Handloser will be admitted in evidence, attached to a copy of Dr. Handloser's letter to Dr. Kreuz, which Dr. Nelte would certify to be a copy of the letter which he wrote to Dr. Kreuz. That may be admitted in evidence under these circumstances as Handloser Exhibit 41.

MR. HARDY: Your Honor, I have a problem to take up here. Dr. Nelte has, as Handloser Document 52, in Document Book 3, as Handloser Exhibit 31, just submitted a jurat. This Document 52 has a jurat already, but Document Handloser 10 from the same affiant does not have a jurat, and I assume that this jurat from the same affiant should be attached to Handloser Document No. 10 and not Handloser Document 52. I offhand do not know the exhibit number of Handloser Document 10. That is to straighten that one out.

I also might call to Dr. Nelte's attention that he has given us a jurat for Handloser Document 42, which is Exhibit 19, and that document already has a jurat on it. Perhaps this jurat also should be attached to another document. Maybe he could clear that up at recess, Your Honor.

THE PRESIDENT: We will pass that now until the noon recess, which will occur in a few moments, and then it can be cleared up and the matter clearly stated to the Tribunal when we reconvene.

DR. NELTE: It has a jurat, but not in the form which was prescribed by the Tribunal during the latter part of the proceedings. The original formula was in compliance with the general idea of submission of an affidavit, but does not contain any reference to punishment.

MR. HARDY: Does that also apply to Handloser Document 10?

THE PRESIDENT: I would suggest that those matters be discussed between counsel during the noon recess, and report made to the Tribunal when we reconvene.

Counsel may proceed.

DR. NELTE: I now submit an affidavit by Professor Dr. Wirth, who was the head of the Pharmacological Institute of the Military Medical Academy. This is HA 56. I ask you to accept it as Exhibit 52.

THE PRESIDENT: Counsel, you just gave us the number of Exhibit 56, I understood. Oh, Exhibit 52, I see.

DR. NELTE: Exhibit No. 52.

JUDGE SEBRING: What document book, please?

DR. NELTE: It is in no document book, but can be found in the book I today submitted to the Tribunal. You will find it to be the fourth document, coming after the three affidavits which I have just submitted. Point one of this affidavit refers to prosecution Document No 154. It refers to a report which was submitted by the Prosecution. I asked Professor Wirth to state in this affidavit his position with reference to page 3 of this report, where it says:

A third series of experiments was carried out with a representative of the Lost group, with nitrogen Lost, according to the suggestion which was made by Oberstabsarzt [Chief Medical Officer] Professor Dr. Wirth on the occasion of a conference with the Reich Commissioner Professor Dr. Brandt on 4 December 1944.

As it can be seen from the report, this series of experiments was carried out in the concentration camp of Neuengamme.

Since the Prosecution mentioned this suggestion by Professor Wirth in order to incriminate Professor Handloser, by alleging that he was the superior of Professor Wirth, I considered it proper to hear Professor Wirth's attitude with reference to this accusation. In this affidavit, which I shall not read in its entirety, he states that he actually did participate in the conference of December 1944, but that from a material point of view it is entirely impossible that he actually made any such suggestion. In this connection I should like to draw the attention of the Tribunal to the fact that this conference took place on 4 December 1944. On 1 September 1944, Professor Handloser was released from his position as Army Medical Inspector. If there had been any connection at all between professor Wirth and Professor Handloser during the time Professor Handloser was Medical Inspector. Roman numeral II of the affidavit deals with the purpose and significance of the meeting of Consulting Physicians, and further whether these meetings could induce the Prosecution to allege that the participants in these meetings were planning war crimes and crimes against humanity. I merely refer to the answer to the question contained in Roman numeral II and Roman numeral III.

THE PRESIDENT: Dr. Nelte, the Tribunal will receive the document in evidence. I will ask that during the noon recess the secretary, Dr. Nelte and counsel for the prosecution as far as possible will endeavor to assemble a set of those documents in English which Dr. Nelte is attempting to offer. I find that those before me show some in German and some in English. If each member of the tribunal could have a copy in English it would help a great deal.

The Tribunal will recess until 1:30.

(Thereupon at 1230 the Tribunal recessed until 1330)