1947-06-30, #4: Doctors' Trial (late afternoon)
THE MARSHAL: The Tribunal is again in session.
DR. TIPP: Mr. President, in accordance with the request of Mr. Hardy, I have determined when the witness Grandjean testified here. He was here as a witness on 6 January 1947, his testimony is on page 1099 of the English record, page 1145 of the German.
The testimony of the witness Holl is also of interest in this connection. He was here on 3 January 1947, his testimony is on page 1058 of the English record, page 1098 of the German.
BY DR. TIPP:
Q: Witness, we stopped at the typhus epidemic in Natzweiler. I put to you the testimony of Nurse Grandjean, who said there was a total number of 1,200 cases of typhus and I believe I understood you correctly that you conceded this number might be right. If one took all cases together; is that true?
A: Including the outside camps, that might be right.
Q: Grandjean was including the outside camps, yes. Witness, I should like to go on to another subject you discussed, the poison gas experiments, which Mr. Haagen allegedly carried out. As far as I can recall, you said Haagen came back about the end of April or beginning of May in 1944; is that right?
A: Yes.
Q: Well, then will you please tell us from your own knowledge what you know about these gas experiments?
A: Professor Haagen came back about this time, he had people picked out again from among the gypsies who were in the camp, who were in a certain block and he put them in the same two rooms.
Q: May I interrupt you a moment; how do you know who selected the experimental subjects?
A: They were selected by the camp doctor and told to come to the prisoner's hospital, they came early in the morning or at noon, I don't remember exactly and Haagen and the camp doctor picked them out.
Q: How many people were taken out of these blocks as possible experimental subjects; was it a large number or a few?
A: I believe eight, there were four groups.
Q: Do I understand you correctly? Did you say eight?
A: Perhaps eight, about eight.
Q: The experiments were carried out on eight persons?
A: Yes.
Q: I believe you said this morning that these experimental subjects included some gypsies who had already been in the typhus experiments, is that true?
A: Yes.
Q: Now, do you know whether Mr. Haagen ordered the people to come to the hospital and from what group of persons these people were taken or whether it was a camp doctor who did this? Do you know anything about this?
A: No, I only know that perhaps an orders from above — I don't know — the camp doctor ordered them to come to the hospital and Haagen and the SS camp doctor selected them; but primarily Haagen.
Q: Witness, do you know Professor Haagen well?
A: I saw a great deal of him.
Q: Well, the Court has seen Mr. Haagen too. Can you please describe to us what Mr. Haagen looks like?
A: Well, he is about one meter sixty-eight tall. He had gray hair. He wore a Luftwaffe uniform, blue-gray. He had a white epaulet, a golden staff of Aesculapius. He was not fat, but rather stout.
Q: You knew Mr. Haagen from the typhus experiment?
A: Yes.
Q: Now, did he carry out these typhus experiments alone?
A: Yes.
Q: Was no one ever there?
A: No — there were visitors sometimes.
Q: Now, I must put some other testimony before you, witness:
Witness Hirz, whom we heard here said that Mr. Haagen came with another Stabsarzt [Staff Surgeon] of the Luftwaffe.
A: No, sometimes people came alone and sometimes not, but occasionally he brought somebody along.
Q: But when the injections were made nobody was there.
A: No, only the assistants.
Q: It was a female assistant?
A: Yes.
Q: There was no other officer there?
A: No.
Q: Now, what happened in this gassing experiment, Witness? Just briefly.
A: I have already said that Professor Haagen divided these people into four groups. I am assuming this number, eight. It might have been ten. And then he went down with one group each time and he took a drinking cup and an ampule, a white ampule, that he brought with him in a big box. It was put in soot or something like that. It was very well packed. He took that out and he took the people down or else he sent for them; he had gone ahead, and then they came back and were put to bed.
Q: Just a minute, Witness, What actually happened to these people when they were away from the hospital until they came back. You don't know that?
A: No.
Q: And you don't know whether Mr. Haagen performed experiments on these people in. the meantime or whether somebody else did it and maybe Haagen was only the assistant. You can't say that?
A: No.
Q: Now, what did the people look like when they came back?
A: The first were not seriously affected. They were used again later. And became worse and worse. When the worst came the people were trying hard to breathe. They couldn't get air; they had foam at their mouth. Terrible, terrible to look at. I can't judge, of course. I only know that the diagnosis when they died was lung edema. That was determined by Professor Haagen and some of the prisoner-doctors, including this Dr. Kredit, the Dutch doctor!
Q: You said, Witness, I believe, three people died of these experiments, is that right?
A: Five, and some died in Dachau too.
Q: How do you know that.
A: I went with an evacuation from Natzweiler to Dachau with the sick transport. There was a train with thirteen hundred patients and these people were among them. I know that on the way some of them died. We had one car for this ward and another car for that ward, and so we had the cases sorted. And Dr. Kredit reported that these people had died, but I don't remember the names.
Q: Now, how many of these people died while they were still in Natweiler and how many died in Dachau?
A: I can only say that I saw some of them in Dachau. One was in the hospital with me for something — had something the matter with his lungs.
Q: And how many dead people from these experiments did you yourself see in Natzweiler?
A: Five.
Q: Those are the five in the book here?
A: Yes.
Q: Now, can you, opening the book, Witness, tell from the book when these people died? Can you see that from the entry?
A: The month, yes.
Q: Now, Witness, how does it happen that only the month is entered and not the day?
A: The dates were not always given, the dates. Sometimes the report came up. It was always reported to the SS and the date wasn't important, only the month.
Q: But if I understood your correctly before, you said that the death record from which you copied this list was kept in the hospital.
A: Yes.
Q: And was kept by prisoners?
A: Yes.
Q: Now, Witness, it seems rather remarkable that prisoners would not have enough interest in their dead comrades to record the date of the death, especially since you say that there was the intention of notifying the relatives later.
A: If you will look at the book you will see that in the cases of the Dutchmen — and I was a Dutchman — I wrote down the exact dates or had them written down, because I was especially interested. The other prisoners, too; but I was interested in my Dutch comrades, and if you look at the Book you will see that in the cases of the Dutchmen the exact date is given.
Q: Well, Witness, are these exact dates given in your copy too?
A: Of the Dutchmen? Yes they are.
Q: Now, Witness, to go back to Mr. Haagen: Can you say definitely that Mr. Haagen carried out these experiments or is there a possibility that you are confusing Haagen with some other Luftwaffe doctor who was also a Stabsarzt — captain — and who to your knowledge actually did carry out such experiments in Natzweiler?
A: What experiments are you talking about, the typhus experiments?
Q: No, I mean the gas experiments.
A: I know only that Haagen only — was the only one who came to the camp and was the only one who had the interest of having the case history recorded.
Q: You think you can exclude any mistake then?
A: Yes, it is quite impossible.
Q: But whether Haagen actually carried out the experiments, you don't know?
A: No.
Q: Now, Witness, a final question on the witness, Dr. Kredit. Kredit was a Dutchman, I believe.
A: Yes.
Q: Can you tell us whether Dr. Kredit died?
A: In February, 1945, in Dachau.
DR. TIPP: Then I have no further questions, Mr. President.
THE PRESIDENT: Any further cross-examination by any of the Defense Counsel?
(There was none.)
Has Counsel for the Prosecution any redirect examination?
MR. HARDY: The Prosecution has no further questions, your Honor.
THE PRESIDENT: The witness is excused from the stand.
(The witness, Nales, left the witness-stand.)
I understand that Counsel for the Defendant Becker-Freyseng has some documents to offer.
MR. HARDY: May I inquire at this time whether other Defense Counsel will be prepared to put on their documentary evidence? It seems to me that some of these translations should be through by now.
THE PRESIDENT: Is there any other Defense Counsel prepared with any of the documents which re to be offered in evidence?
MR. HARDY: I think Dr. Wille has one document.
DR. WILLE: I have a single document to offer.
THE PRESIDENT: Will Dr. Wille have any further documents?
DR. WILLE: No, only one.
THE PRESIDENT: Dr. Wille may offer that document at this time.
DR. WILLE: Mr. President, this is Weltz 25. I have —
THE PRESIDENT: Is that document available to the Tribunal?
DR. WILLE: Yes.
THE PRESIDENT: Will you hand them to the Tribunal?
DR. WILLE: I offer this document as Weltz Exhibit 24.
The event described in this document is a visit of Professor Alexander to Hirschau where the aviation medicine institute of Professor Weltze was at that time.
I do not believe it will be necessary to read the document, although it is quite short. I shall merely refer to the contents and ask that it be accepted in evidence.
THE PRESIDENT: What exhibit number do you assign to this document?
DR. WILLE: Twenty-four.
THE PRESIDENT: The document will be received in evidence.
DR. WILLE: Mr. President; may I come back to my presentation of documents of Saturday? I have investigated. The President said that the so-called document book was not supplied with numbers and there was no index. I have inquired in the meantime. There was a misunderstanding in the translation division which has been cleared up in the meantime. I had only one document; which is very extensive. I had given it to the translation section and it was mistakenly treated as a document book. That is why there were no numbers and not an index.
MR. HARDY: I may inquire whether Dr. Gawlik has any further supplemental evidence inasmuch as I have not any other document books for the Defendant Hoven; perhaps he has already completed his documentary evidence.
THE PRESIDENT: Has Counsel for the defendant Hoven any further documents to offer?
DR. GAWLIK: At the moment I cannot say, Mr. President. I am still busy preparing my final rebuttal material.
MR. HARDY: That should have been all prepared by now, Your Honor.
THE PRESIDENT: If there are any further documents to be offered and if they are not in the hands of the translation department, it is very doubtful that they will be prepared in time to be offered.
DR. GAWLIK: The material was offered last week; I really must have a little time to refute it. I am not in the fortunate position of the Prosecution; to be able to get in a car and drive to distant areas and get witnesses.
MR. HARDY: I don't understand what the Defendant's Counsel means by "evidence offered last week." This is rebuttal evidence, Your Honor. If this continues we will be here until next December, letting them answer our rebuttal evidence.
THE PRESIDENT: I don't know — the rebuttal evidence admitted was—
DR. GAWLIK: I am speaking of refuting the material offered by the Prosecution in regard to the Defendant Hoven, on Wednesday of last week, during cross examination. It is not possible for me within three or four days to obtain the evidence. I am endeavoring to rebut these documents which have been offered. But if the Prosecution offers this material so late it is an affidavit of Ackermann of the 21st of March which the Prosecution was only offering now, I believe that I am justified in asking for a few days at least.
MR. HARDY: I am sorry, I can't see the justification, your Honor; but I would like to know from other Defense Counsel how many of them have their documents ready and can they present a list to the Tribunal of when they will approximately be ready to present these documents so that we will be able to ascertain whether we should sit nights. Me might run out of evidence and have to adjourn. The Prosecution is nearly finished. We may have two or three little jobs to clean up our case, but other than that we have these documents marked for identification which I am endeavoring to get together, and I have perhaps another day that I am entitled to in the case of the rebuttal. They have two more days left — that is Tuesday and Wednesday. And if they don't have any material ready, then we won't finish this week.
THE PRESIDENT: I understood when I asked Counsel for the Defense questions the other day that they would be ready by Wednesday and I also understood all the documents they wanted were in the hands of the translation department and that the delay was occasioned in the translation department in furnishing the documents. No one suggested then, as I remember, that there were further documents to be offered to the translators.
DR. GAWLIK: Mr. President, it is only material to refute the rebuttal material. We have to have that opportunity. If the Prosecution waits until the last minute and then offers evidence, then have to have a certain amount of time to be able to refute it.
THE PRESIDENT: Just what evidence are you referring to as rebuttal evidence, Doctor? You referred a moment ago to the cross-examination of the Defendant Hoven. That isn't rebuttal evidence.
DR. GAWLIK: I beg your pardon. I mean the material which was shown to the defendant Hoven last Wednesday in cross examination. I am trying to refute that. It has not been possible to find the witnesses from whom I want affidavits, to get them here by now. I assume that they will be here tomorrow or the next day but I can't do it any quicker; because the prosecution doesn't offer the evidence sooner, it is not my fault, Mr. President.
MR. HARDY: Your Honor, it is my understanding — maybe I am subject to correction — it has been my understanding that these documents that the prosecution used during the course of cross examination were rebuttal documents in the true sense of the word and because of that understanding the Tribunal ruled that our documents would be offered formally during the course of our rebuttal and that they would be marked for identification during the cross examination period.
Now, it is my position that those documents marked for identification are rebuttal documents and he had ample time. He got them two, three or four months ahead of the actual rebuttal. The cross examination of Hoven, true, was last week but there was nothing new to speak of brought out in the cross examination of Hoven.
THE PRESIDENT: The documents offered by the prosecution and marked as identification during the examination of the defendants were furnished to the defendants long ago. Copies were offered to most of the defendants. Of course, those defendants whose cases came last did not receive them quite so soon but those documents are proper rebuttal evidence, as stated by counsel for the prosecution; at least, I assume that there is no evidence in them that is not proper rebuttal testimony. I know that most of them was proper rebuttal evidence. If there was evidence in those document that in no way concerns the defendants' defense, it might be said to be original evidence but I do not think there was much of that.
Now, those documents marked in defendant Hoven's case were heard during the close of the case but counsel has had those documents for some tine.
If the witnesses are not available, that might he true of some witnesses who would not get here until next Fall and we cannot wait indefinitely on the procuring of witnesses. It is unfortunate that witnesses are not readily available but it is a grim fact and this evidence must be closed; and I will hear from counsel at any time — tomorrow or Wednesday — if he can procure any documents but documents which will not be prepared until after that and then will not be referred to the translation department I see very little chance of those documents being received in evidence.
Counsel may present any particular situations to the Tribunal. I will always listen to him but, as stated some days since this evidence has reached the point where it must reach a final determination.
If counsel has a witness tomorrow and can procure an affidavit, I will endeavor to expedite his translation. I have already talked to the translation department in an endeavor to expedite these matters. I will speak again, but the material must be here for the translators to work upon.
DR. GAWLIK: Mr. President, may I say something? I am trying to obtain it as quickly as possible? It is not material which goes back for months. It is a question of refuting the affidavit of Ackermann dated 21 March which was offered last Wednesday. I had no knowledge of this beforehand and therefore could not refute it. If the prosecution asserts that it is immaterial, it would be different — it was a completely new affidavit of which I have had no previous knowledge.
MR. HARDY: And it was in the nature of rebuttal evidence, Your Honor, and the prosecution feels it was proper evidence to be offered on cross examination.
THE PRESIDENT: In every case there always comes a point where there is an examination of the defendant and then a cross examination and in that case evidence is properly identified to be offered as rebuttal evidence.
If counsel can suggest anyway by which he can procure further affidavits within the time specified the other day by the Tribunal I will be glad to do anything within my power to assist in the presentation of that evidence. If counsel will see what he can do and the Tribunal will endeavor to procure evidence insofar as possible, but it must come to an end some time.
DR. GAWLIK: Very well, Mr. President.
MR. HARDY: Will a committee of defense counsel, maybe two of them, make a schedule out today or this evening to show the Tribunal how the rest of this evidence will be presented? Prosecution is endeavoring to pick up shreds of evidence and put it in to take up the time and, of course, we have our problems, too, and we are only two or three men as opposed to twenty-three of defense counsel. I would like to get a schedule to show how they are going to put in their document books and who has to complete them. There may be some defendants who have none.
THE PRESIDENT: Then we can judge the time. If the counsel for the defendants will get together and furnish such a statement to the Tribunal and to the counsel for prosecution, it will be appreciated and, if they will, do that this evening and furnish such a statement tomorrow morning as to what documents they will have to present and when they expect to present it.
Counsel for Becker-Freyseng may proceed with the introduction of his documents and Dr. Nelte has some.
DR. NELTE (Counsel for defendant Handloser): In an agreement with my colleague, Dr. Tipp, I have only two brief questions on which I should like to have a decision of the Tribunal.
On 18 June 1947 I offered an application to the Tribunal. It dealt with a questionnaire to Dr. Balachowsky. On the 8th of January, on the day when the prosecution submitted the affidavit of Dr. Balachowsky here, I, according to the instructions of the Tribunal, submitted a questionnaire, as prescribed, to the General Secretary and asked that this questionnaire be given to Dr. Balachowsky so that I could use it as evidence.
This application was made on the 8th of January 1947 but I receive no answer.
Every month I have asked the Secretary General's office about it and every month I was told that efforts were being made but that no answer had been obtained yet. I am not in a position to obtain this affidavit from Dr. Balachowsky — or, rather, the answer to the questions. I believe that this is an approved cross examination. If the witness does not appear, then what is said in his affidavit against Professor Handloser cannot be used as evidence. Therefore, on the 18th of June I submitted an application to the Tribunal that the affidavit of Dr. Balachowsky insofar as it contains statements concerning the defendant Handloser should not be admitted in evidence and I ask for a decision on this application before I lose all opportunity of submitting further evidence.
THE PRESIDENT: For a ruling on such a question the Tribunal would like to know what has become of the application which was filed in January. Of course, I don't remember it among the many dozens of applications which have come to my desk. I would suggest that counsel go to the office of the Secretary-General and ask that the original application be traced and find out when it was filed and if it is there — if not, if they have any idea what has become of it. It has always been my endeavor to have the Tribunal rule on the applications very promptly. It is possible one may have been lost or mislaid. I don't know. I have no recollection of that particular application.
DR. NELTE: On the 8th of January I did not make an application to this Tribunal. I submitted a questionnaire to the Tribunal asking that it be sent on to Dr. Balachowsky.
THE PRESIDENT: That is not an application? That is what I refer to. It is an application for interrogation on questions. Whether it is is an affidavit for a witness or interrogation, I refer to them all as applications; but my suggestion is that counsel immediately go to the office of the Secretary-General and find out what record they have of that application, if any, if they have any way of ascertaining where it is or what has become of it.
DR. NELTE: Then there is a second matter, Mr. President. The prosecution has submitted a new document book XVIII. In this document book there is a sworn statement of Professor Reiter of 29 March 1947 concerning a typhus conference 29 December 1941. This is document NO-2506. The prosecution has offered this as a rebuttal to the affidavit made for Professor Handloser, Document HA-25, Exhibit 10. It is the only document in this document book XVIII which affects the defendant Handloser. I offer a document in evidence in that connection. Professor Reiter himself, according to the information of the Security office is in the Hospital and since he has already made two affidavits I do not intend to ask him for a third; but I have in my possession a statement which Professor Reiter gave to me when I asked him about an affidavit and wanted to determine whether he had already made any statement on the typhus conference 29 December 1941. When I said to him that in making an affidavit as I wanted it he should take into consideration what he had already stated, he said that on 22 November 1946 he had been interrogated by the prosecution.
THE PRESIDENT: Counsel, let me ask you, I understand that you have an unsworn statement from Dr. Reiter; is that correct?
DR. NELTE: I do not have another affidavit, but a statement by Professor Reiter.
THE PRESIDENT: I said an unsworn statement, not an affidavit, but a statement by him without an oath, without a jurat; is that correct?
DR. NELTE: Yes, Mr. President, but it was not given to me but to the Prosecution.
THE PRESIDENT: Well, do you wish to introduce it in evidence or what is your desire?
DR. NELTE: Yes, I want to submit it in evidence because it contradicts the statement which Professor Reiter made for the Prosecution as an affidavit.
THE PRESIDENT: Well, you submit the statement to the Prosecution and possibly he will agree and maybe admit it, I don't know.
MR. HARDY: I absolutely will not agree to the admission of it, your Honor. I do not know whether I ever had it or not. If the prosecution had it Dr. Nelte certainly would not have it in his hand, but be that as it may, he submitted an affidavit from Professor Reiter. The prosecution then submitted a cross affidavit from Professor Reiter pertaining to the facts in the direct affidavit by defense counsel.
The proposition is as simple as that. I don't see any need for further evidence from Reiter.
THE PRESIDENT: Well, counsel has no affidavit from Dr. Reiter, and an unsworn statement would not be admissible over the objection of the prosecution.
DR. NELTE: I believe. Mr. President, this is a misunderstanding. I offered an affidavit, and the Tribunal accepted it as Handloser Exhibit 10. The prosecution document NO-2306, was a second affidavit from Professor Reiter, dealing with the same subject, as Document HA-25. In this affidavit Professor Reiter makes different statements than he made on the 22d of November 1946 to the prosecution in writing, and for the evaluation of the probative value of the affidavit of Professor Reiter, I want to offer this statement which was made on the 22d of November to the prosecution.
MR. HARDY: You see, your Honor, if this was made to the prosecution I am sure it would be in my files. If Professor Reiter sat in his cell and wrote me a letter and never delivered it, that isn't something that I have received. This is not under oath. He executed an affidavit under oath for the defense counsel. Then we called him, presented that affidavit to him and asked him for other statements. He gave us statements and swore to those. What this piece of paper is is beyond me. He may well have written that in November.
THE PRESIDENT: Pass the paper to the Tribunal.
MR. HARDY: There is no receipt stamp that it has been received by my office.
DR. NELTE: Mr. President, this document is the copy signed by Professor Reiter of a document which he alleges he gave to the prosecution. If the prosecution says that they did not receive a document, then I offer it here for identification. Then the matter is settled — then I won't offer it in evidence, if Mr. Hardy says that he never got this letter from Professor Reiter — then the matter is settled.
MR. HARDY: I can state positively that Mr. Hardy never got it, your Honor.
THE PRESIDENT: Well, that only answers the question in part. If counsel for the prosecution would ascertain whether that letter is in the file of the prosecution — someone else may have received it. I don't know who prepared the affidavit.
PR. HARDY: Your Honor, suppose it is in the file of the Prosecution? What is the point? I don't understand his trying to offer the document. It is not under oath. It's not a document; it's just a letter.
THE PRESIDENT: I understand, but if a paper writing shows contradictions between statements made by a witness and it is contended that the affidavit prepared by one party does not conform with the statements made by the affiant, it might have relevancy, but Dr. Nelte has stated that if the prosecution will state it never received this document he will not offer it.
It should be a comparatively simple matter to ask the office of the prosecution if anyone there over received this document.
MR. HARDY: It would, and if we received it we would have it, your Honor, and defense counsel has it, so I am in a position now to say we never received it.
THE PRESIDENT: That doesn't altogether answer, because Dr. Reiter might have made two copies of the document.
MR. HARDY: Well, I will check with my files, your Honor, but I am sure that is the situation as I have outlined it to the Tribunal.
THE PRESIDENT: Very well, that will dispose of the matter if it is correct. If not, the tribunal will consider it tomorrow.
MR. HARDY: Since this copy is addressed to the prosecution may I keep this, your Honor, to check with the other one?
DR. NELTE: Yes, there is a photostat too.
THE PRESIDENT: Counsel for Becker-Freyseng.
DR. TIPP: Mr. President, first of all, from document book 1, Becker-Freyseng, I should like to offer a few documents which deal primarily with experiments on human beings. From document book 1 I have already offered and assigned exhibit numbers to documents 1 to 7. Documents 8 and 9 I do not intend to offer.
THE PRESIDENT: Counsel, I didn't hear you. Would you please repeat that?
DR. TIPP: From document book 1 I intend to offer a few papers on human experimentation. First of all, I should like to say documents 1 to 7 have already been submitted. Documents 8 and 9 I do not intend to submit. The next document which I should like to offer is Becker-Freyseng Number 10 which is on page 27 of the document book, and if it is admitted I shall assign it the exhibit number 52.
The document is the paper by Gill and Forbes.
THE PRESIDENT: Has counsel for the prosecution this document book?
MR. HARDY: Yes.
THE PRESIDENT: Is there any objection to the admission of this document?
MR. HARDY: Your Honor, I might ask defense counsel how many documents in document book number 1 he intends to submit, and I can look them over now and give him a blanket clearance or object to the ones I wish to object to.
DR. TIPP: In this book I intend to offer only Document 10 as Exhibit 52, Document 16 as Exhibit 53, and Document 17 as Exhibit 54.
MR. HARDY: I have no objection to any of those three, your Honor.
THE PRESIDENT: The documents will be received in evidence. Now, counsel gives to document 10 the exhibit number 52?
DR. TIPP: Yes, 52. 16 will be 53 and 17 will be 54. The other documents from this book I need not offer. Now I go on to document book 2. From this book I should like to offer documents 18, 19 and 20. The rest of the documents have already been offered. Document 18 is an extract from a scientific paper by Karl Kiskalt, Theory and Practice of Medical Research. It deals with the historical development of experimentation on human beings in general. I will assign exhibit number 55 to this document.
THE PRESIDENT: Will you repeat, counsel?
DR. TIPP: I offer Becker-Freyseng document 18, Theory and Practice of Medical Research by Karl Kiskalt as exhibit number 55.
MR. HARDY: Your Honor, I have no objection to these three documents, 18, 19 and 20, and I might inquire of counsel if he intends to introduce document number 32 in this document book. It has not been introduced to date
THE PRESIDENT: Counsel for the prosecution is correct that document 32 has not been introduced in evidence.
MR. HARDY: If he intends to introduce that, I have no objection either, your Honor.
DR. TIPP: This document, an affidavit of Professor Zugschwert, has already been offered as a Schroeder document and I enclose it in my document book merely for the sake of simplicity. I don't believe that a new exhibit number is necessary, and I don't believe I need to read from this document either. I go on to document book 3. From this document book I have only the last document, 59-A, an article from "Time", "Conscientious Objectors as Guinea Pigs". This will be Exhibit 57.
MR. HARDY: I must object to that being admitted into evidence, your Honor.
THE PRESIDENT: Objection to admission of this document is sustained.
DR. TIPP: Then in document book 4, from this book I intend to offer only documents 60 and 60-A. Professor Luxenburger of Munich was approved as an expert witness for the defense. He was to testify about experimentation on human beings. Since so much testimony has already been given on this problem, we have dispensed with this expert. He and his associate, Dr. Halbach, have recorded their attitude on this problem in an affidavit. I believe that this form will help the Tribunal more than testimony from the witness stand. The exhibit number would be 58 and 58-A.
THE PRESIDENT: What numbers were those, counsel? What number? What document?
DR. TIPP: 60 and 60-A in document book 4. Document 62, which is the only one which has not yet been offered, I do not intend to offer.
THE PRESIDENT: You must again give me the exhibit numbers for 60 and 60-A. Has counsel for the prosecution any objection?
MR. HARDY: I have no objection, your Honor, but I have no record that the other four documents were offered in evidence, any one of the other four. That's 61, 62, 63 and 64. They may have been while I was out of court. If they have been offered I would just like to get the numbers for my records here.
THE PRESIDENT: Document 63 was received in evidence as Exhibit 43. Becker-Freyseng.
MR. HARDY: And 64.
THE PRESIDENT: I have no record of 64 being offered.
MR. HARDY: Number 64 is Exhibit 7.
DR. TIPP (Counsel for the defendant Becker-Freyseng): Exhibit 7, Mr. President. 61 is Exhibit 20.
MR. HARDY: And 62 you do not intend to offer.
DR. TIPP: No.
THE PRESIDENT: I am sorry, counsel, but due to the conversation on the part of the prosecution, I still failed to get the exhibit number of 60 and 61-A.
THE PRESIDENT: I call it 58 and 59.
DR. TIPP: Very well.
THE PRESIDENT: You are not offering 61, 62, or 64, is that correct?
DR. TIPP: No. Mr. President, I am not offering 62. 63 is Exhibit number 43. Document 64 is Exhibit number 7.
THE PRESIDENT: Well, counsel, I have no record that 64 has been offered in evidence. You say it's been received as Exhibit number 7. I have no record of that, that may be true, but I have no record of that.
MR. HARDY: Your Honor, at this time, in this Document Book Index, Document Book Number 4, Document Number 60 is Exhibit Number 58; Document Number 60-A is Exhibit 59; Document Number 61 is Exhibit Number 20; Document Number 62 is being withdrawn; Document 63 is Exhibit 43; and Document 64 is Exhibit 7.
THE PRESIDENT: That agrees with the records for the counsel for the prosecution, the admission of Exhibits 20 and 7?
MR. HARDY: Maybe I was out of court that day. I have no objection to the offering of those affidavits with those Exhibit numbers.
DR. TIPP: Mr. President, perhaps I can explain that. Document 61 I offered in the examination of Becker-Freyseng to support the testimony of the witness; and in the same way, I offered Document 64 during the direct examination of Becker-Freyseng as Exhibit 7. Now, I come to Document 5 in the new Supplement Document Book.
Document Book 5 has already been offered.
MR. HARDY: What Document Book Number 5? There are three documents, 72, 73 and 74 that have not been offered.
DR. TIPP: That is true. 72, 73, and 74 have not been offered.
THE PRESIDENT: I have 72 marked Exhibit 50.
DR. TIPP: Yes, the other two, 73 and 74, I will withdraw.
THE PRESIDENT: Document 67 is not marked as having been received.
MR. HARDY: Document 67, he intended to introduce that later. That is on —
DR. TIPP: Mr. President, 67 is an affidavit of Professor Matthes. That was originally to be offered because Professor Matthes sent us copies of two research assignments of the medical inspectorate. He gave the affidavit that the contents were correct. The Tribunal told me that I was to obtain the originals of these research assignments, since a copy certified by the witness was not sufficient. In the meantime, the witness had told me unfortunately he has only copies which are not certified. I am very sorry that I have to dispense with this evidence. Under the circumstances, I can not offer it, and I will withdraw it.
THE PRESIDENT: Just explain that situation again, counsel.
DR. TIPP: The Matthes document which Mr. Hardy mentioned, Document 67 is a statement of Professor Dr. Matthes in Erlangen about the way research assignments were issued, their contents, and so forth. I have already offered a number of affidavits on this point. To this affidavit were attached copies of one research assignment from the Medical Inspectorate to the witness Matthes, and one to a Leipzig institute at which the witness was working. The witness had said in his affidavit that the attachments, that is the research assignments, were in order.
When this document was offered, and the prosecution objected, the Tribunal decided that the original had to be offered, that a copy certified by the witness was not enough. I got in touch with the witness and Professor Matthes told me that he could give an affidavit to the effect that the copy agreed with the original, but he did not have the original; and therefore, I am withdrawing the exhibit because I can not conform with the directions of the Tribunal.
THE PRESIDENT: Well, the situation now is exactly the same as it was when the document was offered.
MR. HARDY: That's right.
THE PRESIDENT: And the question turns upon the authority of the witness Dr. Matthes to certify to certain documents to be true copies.
MR. HARDY: That's right.
THE PRESIDENT: In the absence of some extraordinary circumstances, the affiant, or the witness who makes an affidavit could not have the authority to certify that certain papers are true copies of other documents. The document in its present form was and is objectionable. The objection is sustained.
DR. TIPP: Then, I go on to Document Book Five, part 2, Becker-Freyseng. Document Book, document 75. the affidavit of Professor Haagen which I showed to Professor Haagen in the examination and it was offered as Exhibit 51. The next Document is Document 76, an affidavit by Mrs. Viverowsky. It is on page 385.
THE PRESIDENT: 385 of what? I have the documents Becker-Freyseng 1 admitted as Exhibit 31; an affidavit of Eugen Haagen?
DR. TIPP: 51.
MR. HARDY: Your Honor, this document book that I have doesn't have the Haagen document in it, and in the index it is crossed out as if it wasn't to be introduced.
I suppose because we had Haagen here and heard him in direction testimony.
THE PRESIDENT: Well, I have before me a copy in English and a copy in German of an affidavit by Eugen Haagen. I have it marked Becker-Freyseng Exhibit 51, 17 of June. It was not included in the document book. It is an unattached affidavit.
DR. TIPP: Mr. President, this affidavit which you just mentioned by Professor Haagen which I offered as Exhibit 51 was put in the index of this document book by mistake. It is not a second affidavit by Professor Haagen, it is the same one, but since the document itself has already been offered, we can strike it out here in the index.
THE PRESIDENT: Now, counsel, again what document book are you referring to. I have here before me a document book 5 for Becker-Freyseng, but I have no part 2. I have it here. Very well, now if you will start over again with that.
DR. TIPP: I offer Becker-Freyseng Document No. 76 as Exhibit 60. This is an affidavit of Mrs. Viverowsky. It is on page 385. I do not intend to read from this affidavit, Mr. President. I shall but point out that Mrs. Viverowsky worked for Professor Haagen for years. She worked primarily in the field of hepatitis epidemica, and she confirms as Professor Haagen himself said that no human experiments were carried out in this field. And I should also like to point out that on page 3, in the third paragraph, Mrs. Viverowsky says:
He —
— meaning Professor Haagen —
used his new dry typhus vaccine at first on himself and Miss Crodel.
The next sentences only refer to the witness herself. The next paragraph begins:
In 1944, I heard that a typhus epidemic had broken out in one of the camps. It had been brought by prisoners recently transferred from the East. Professor Haagen had a disinfecting station installed at the entrance to the camp. I do not know what was subsequently undertaken there. Fraulein Brigitte Crodel had to deal with the Weil-Felix reactions during this epidemic.
I shall merely refer to the rest of the contents of this document. The next document which I offer is Becker-Freyseng No. 77, Exhibit number 61. It is an affidavit by Dr. Fritz Witt of Nuernberg. I should like to point out that Dr. Witt was a witness here on the 28th of February. I am offering this affidavit, Mr. President, to clear up the question of the file note refer at numbers, and the organization of the medical inspectorate once more. I should like to call the attention of the Tribunal primarily to the drawing which is attached to this affidavit which shows the organization of the office of the chief of the Medical Service of the Luftwaffe as it actually was. I do not intend to quote from this document. The next document is Becker-Freyseng number 78 which I offer as Exhibit 62. It is an affidavit by Professor Dr. Knothe. It is on page 396 of the document book. Professor Knothe says that Becker-Freyseng suggested to him to set up a training company in the experiment station in the construction company at Jueterbog, and Professor Knothe also says that this suggestion of Becker-Freyseng was refused by his superior. I believe I must offer that affidavit in order to show that Becker-Freyseng had no right to give orders as the prosecution alleged.
The next document is Becker-Freyseng 79, as Exhibit 63. It is an affidavit by Professor Dr. Achelis, the contents again a description of a research assignment, how it came about. The witness says that there was no check, no control exerted, and there was no authority to issue orders on the part of the office which issued the assignment. I do not intend to quote from this document.
Mr. President, I should like to offer one more document in the following connection. The Court will remember that in the sea—water case, in the case of Document NO-183, there were considerable difficulties in translation. It is a letter from Schroeder to Himmler, drafted by Or. Becker-Freyseng. The Court will remember that the defense objected to the original translation of it by the Prosecution. The interpreters were asked to comment on this document and they said that the German text was not ambiguous. I was permitted to bring counter-evidence. I have obtained an opinion only now. Franz Rudolf Matthes, the head of the English Department of the Interpretation Institute of the Heidelberg University has translated it. English copies are here and I should like the Secretary General to hand the English copies to the Tribunal.
MR. HARDY: I request that this matter be taken up outside the Court with the Prosecution and with the interpretation department. We have put in an alternative translation, certified by them in order to avoid confusion and argument; not having the facts familiar at my fingertips now, I wish that this could be taken up with the Prosecution outside the Tribunal and taken up before the Tribunal perhaps Wednesday or Thursday.
THE PRESIDENT: Counsel will discuss this matter with the Prosecution outside of Court this evening or some other time and see if any adjustment of the matter can be made, and then report to the Tribunal; or, if an agreement cannot be made, the matter should be brought before the Tribunal and settled by order.
DR. TIPP: Very well.
MR. HARDY: I have 2 document books, Supplement No. 2 and No. 3 from Beiglboeck. I wonder if Dr. Steinbauer has any other supplemental books or are these the only two that he intends to put in?
Perhaps he can put into evidence now. I won't object to either one of then I might add.
DR. STEINBAUER (Counsel for the defendant Beiglboeck): From the list which the Prosecution offered today, about documents for identification, I have seen there are two Vorlicek affidavits. The defense has no objection to these two documents because they are properly certified. Then I had the assignment from the Court regarding Exhibit 5, statement of the witness at the University Clinic, Professor Heinmeyer, that this document should be certified. I wrote to Professor Heinmeyer and now I have the certified copy, so that this document is in order now.
MR. HARDY: Was this one offered before as a Beiglboeck exhibit?
DR. STEINBAUER: No, I gave it the old number — Exhibit No. 5.
MR. HARDY: The Prosecution has no objection now that it is in order, your Honor. Apparently the Tribunal admitted that provisionally.
THE PRESIDENT: I assume that it was admitted provisionally. Reference will be made to this matter in the record. What is that document number — Beiglboeck 5?
MR. HARDY: It is Beiglboeck Document 24, which is exhibit No. 5.
THE PRESIDENT: May the record show that Beiglboeck Document 24, Beiglboeck Exhibit 5, was formally admitted in evidence, being correct in form.
DR. STEINBAUER: And then the Tribunal asked me about a document which I offered in English — an excerpt from a book by Gritchler to get German translations for the Tribunal and the Prosecution. I have had it translated and I give you copies now.
MR. HARDY: The document which you are getting a German copy of, your Honor, which is Beiglboeck Exhibit 37, rather Document No. 37, was Beiglboeck Exhibit No. 30, I believe.
DR. STEINBAUER: Yes, it was Exhibit 30. It was just a German translation that was missing. Then, as Exhibit 36, I should like to offer affidavit of Dr. falter Rode, from my Document Book 2. The number is 39. It was in the supplement on page 148 to 154. I do not intend to read it, in order to save time. It is properly certified.
MR. HARDY: Does the Tribunal have copies of the English of Document book 2, that is document 39, which just was offered as Exhibit 36 Beiglboeck?
THE PRESIDENT: Are those Defendant Beiglboeck document books? No, we haven't those here.
MR. HARDY: Here is one copy, your Honor, and the others can be picked up —
DR. STEINBAUER: I have them here.
MR. HARDY: Here are a sufficient number of copies.
DR. STEINBAUER: And here is the German. And then the last document which I intend to submit today will be Exhibit #37, the list of names of the gypsies.
THE PRESIDENT: Just a moment, doctor, we haven't received these documents yet. How what document are you offering, Doctor?
DR. STEINBAUER: A new document. I have already given the original to the Secretary General. It is part of Exhibit No. 34, a black cover with the names of the gypsies. Since the case is completed now I should like to offer this list officially. I have asked the General Secretary's office to prepare photostatic copies for the Tribunal and the Prosecution already has copies.
MR. HARDY: Your Honor, I don't think the introduction of the list as contained in the black cover is necessary as a separate number. I believe that the charts and the 2 books were introduced as Beiglboeck Exhibit #34 and the two books that are included in Exhibit #34 have one which has the black cover thereon, where those lists of names are found. I think it would save trouble and would not create too much difficulty if we continued to keep them under one number, 34, rather than submit the list on the cover of the black book as an additional number.
THE PRESIDENT: I understood Beiglboeck Document 39 has just been offered as Exhibit 34; am I wrong?
MR. HARDY: No. 36.
DR. STEINBAUER: Yes, the last number was 36, document 39, Exhibit 36, affidavit of Dr. Med. Walter Rohde. And now I wanted to give an exhibit number to the list of names but I agree with the prosecutor that it is not necessary to give it a separate number.
All I am interested in is that the list of names be made complete. On the photostat copy of the black cover there are 29 names. On the list, the fever charts, there are 11 other names; that makes 40 altogether. Beiglboeck remembers definitely that the last experimental number was a person named Hoff and #43 was somebody named Keifer. The witness, Laufinger, said that Kiefer was in the experiment. The only ones that are missing, then are perhaps 20 and 42. On the occasion of the cross-examination of the witness, Mettback, by Mr. Hardy, he mentioned a name which is supposed to be No. 20. Since I do not have a list of my own I cannot check it, but that may be right. Then, of the whole number of names, only one is missing — that would be No. 42. I haven't found him on any list and it is impossible for no to tell the Tribunal what this last name is, that otherwise we have all the 43 names.
THE PRESIDENT: What was the exhibit number of that book itself?
MR. HARDY: The exhibit number of the charts and the two books that went over in the cross-examination of the defendant Beiglboeck, is Beiglboeck Exhibit No. 34.
THE PRESIDENT: Are there any copies of these lists for the Tribunal?
DR. STEINBAUER: Yes, I can give you copies, but I asked the Secretary General's office to make photostatic copies and this gentleman here was kind enough to say he -would take care of it and gave me a copy and the prosecutor a copy and I would like to ask him to give the Court four copies.
THE PRESIDENT: Then copies will be furnished to the Tribunal?
MR. HARDY: Your Honor, the photostatic copies of the page is not actually necessary. Dr. Steinbauer has made a certified copy of the names as written on the photostatic copy which I think would be sufficient, rather than having the book re-photostatted. As a matter of fact —
THE PRESIDENT: My reference was merely to the photostatic copy of that page of the names.
MR. HARDY: That is what I mean. I mean it has been photostatted once and I have a copy and the Tribunal may have my copy if they wish and I will take one of these in lieu of it.
I think this is sufficient.
THE PRESIDENT: Probably that typewritten list of names will answer the purpose of the Tribunal.
DR. STEINBAUER: Then I have —
THE PRESIDENT: Just one moment. Now this list of names is supplementary to a hat Beiglboeck exhibit?
MR. HARDY: This list of names is the same list of names as contained in the black cover of the book that is in Exhibit 34.
THE PRESIDENT: Then this photostat and this list is a supplement to Beiglboeck Exhibit 34?
DR. STEINBAUER: Yes.
MR. HARDY: Yes, you can call it that, sir.
THE PRESIDENT: Proceed, doctor.
DR. STEINBAUER: I ask the Tribunal to approve an expert Dr. Glatzl from Flensburg, I have a statement from him in my Document Book No. 3, but it is inadequate since I could not give him any data on weight. I wrote to him and asked to come here or else to give me a written opinion. He promised to do so, but so far I have not received the opinion. Therefore, I asked the Tribunal to be able to offer this opinion if it arrives in a few days. Flensburg has very bad postal connections; it is in the British zone, and it wasn't possible to do this earlier. I believe the prosecutor will have no objection to this delay.
THE PRESIDENT: The Tribunal will hear from Counsel when the affidavit or statement or opinion or whatever he calls it is received. If it is received before Wednesday evening, it will certainly be admitted.
DR. STEINBAUER: And today I asked Mr. Hardy whether I can complete my closing brief and go away, leave Nurnberg, whether the water case is finished. He said, Yes". I was very happy to hear this, but after the recess he told me that the prosecution intended to call the witness Karl Hoellenrainer again. Therefore, I should like to ask the prosecutor whether he gave me this information officially or whether that was not official?
MR. HARDY: Your Honor, the prosecution is entertaining the thought of perhaps recalling Hoellenrainer to get his testimony. However, as I say, we were merely entertaining the thought and Mr. McHaney and I were going to have a conference on it late this afternoon and I merely stated that to defense counsel so that I could alert him in case he decided to leave for Vienna before the end of the week and if we did agree in a conference the Tribunal would recall the witness Hoellenrainer. That is purely tentative.
THE PRESIDENT: You will notify the Tribunal at the opening of tomorrow's morning session whether you expect to call the witness Hollenrainer?
MR. HARDY: Yes sir.
DR. STEINBAUER: Then I have nothing more to say at this time.
THE PRESIDENT: The Tribunal will he in recess until nine thirty o'clock tomorrow morning.
THE MARSHAL: The Tribunal will be in recess until nine-thirty o'clock tomorrow morning.
(The Tribunal adjourned until 1 July 1947, at 0930 hours.)