1947-07-01, #1: Doctors' Trial (early morning)

Official transcript of the American Military Tribunal in the matter of the United States of America against Karl Brandt, et al, defendants, sitting at Nurnberg, Germany, on 1 July 1947, 0930-1700, Justice Beals, presiding.

THE MARSHAL: Persons in the courtroom will please find their seats.

The Honorable, the Judges of Military Tribunal I. Military Tribunal I is now in session. God save the United States of America and this honorable Tribunal. There will be order in the court.

THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present in court?

THE MARSHAL: May it please your Honor, all the defendants are present in the court with the exception of the defendant Oberheuser, who is absent due to illness.

THE PRESIDENT: The Clerk will note for the record the presence of all the defendants in court with the exception of defendant Oberheuser, who is hospitalized on account of illness pursuant to the orders of the prison physician.

MR. HARDY: In compliance with the request of the Tribunal that the Prosecution state the position in regard to the calling of the witness Karl Hoellenreiner. The Prosecution at this time requests that the witness Karl Hoellenreiner be recalled to the witness stand. It may be convenient to recall him at 12:30 this afternoon rather than this morning, and then the defense can continue with their documentation in as much the witness Hoellenreiner has not been alerted. It should be 1:30, Your Honor, I am sorry.

DR. STEINBAUER: Mr. President, it would be a good sign that the Prosecution does not think it can dispense with this witness, but nevertheless, I must strenuously object to a renewed examination of this witness for legal reasons.

Karl Hoellenreiner was called by the Prosecution as a rebuttal witness and was examined. No one told or forced the Prosecution to say, "I have no further questions."

By making this statement he indicated that the examination of the witness was completed, thereupon, I also said that I had no questions of the witness. If this witness is to be called to the stand again, after there has been an opportunity to interrogate him, and to tell him what Laubinger testified to just before him, then I believe that the value of this witness is slight, and it would be prejudicial to all the defense counsel, because then, of course, we would make application to re-examine our witnesses on weak points after having told them of faulty material of the trial. For these legal reasons I ask this application be rejected, but if counter to my expectations the Tribunal will grant this request, then I make my application on the basis of the mental condition of the witness Karl Hoellenreiner. When a regrettable incident occurred, and recess was called, a woman whom I had not known before came to me and said that she was Helen Hoellenreiner, the wife.

There were very few defense counsel present —

MR. HARDY: This is all hearsay based on defense counsel's evidence that he is building up. I can not see what that has to do with the admissibility of the witness.

THE PRESIDENT: Counsel may proceed.

DR. STEINBAUER: She asked me to help her husband, saying that there was something wrong with his head. He had been in four experiments, and was suffering greatly. But not this circumstances alone, but a much more important one has occasions me to make this application, I have had great difficulty in trying to find experimental subjects that were scattered throughout Germany so far as this type is concerned, and I come across Karl Hoellenreiner. I went to see him, and I tried to find him at his home town. Then I sent a doctor to talk to him. He told this doctor he had been in four experiments, and that he was very much excited and disturbed. This doctor came to me and said we can not use this man as a witness, he is a pathological liar.

One must grant even a young doctor the ability to judge that this person is not quite normal. Therefore, I ask that before his examination that Karl Hoellenreiner be examined by a doctor appointed by the Tribunal, and that the Prosecution be given an opportunity to participate also in the examination by the doctor.

THE PRESIDENT: Any other defense counsel have anything to say on this subject?

DR. STEINBAUER: May I continue, Mr. President, I am almost finished.

THE PRESIDENT: Yes, I thought counsel had concluded.

DR. STEINBAUER: In case Hoellenreiner is called to the witness stand I further make application immediately to send a messenger to the Nurnberg-Furth District Court in Erlangen and get a complete record of the file of 19 March of Karl Hoellenreiner who was born on 14 March 1914 in Furth. This could be done within two hours. The reason is that Karl Hoellenreiner is not unknown to my colleagues. They told me that to their knowledge Karl Hoellenreiner must have been convicted at least 12 times. He lied to you. He was asked whether he had been convicted and he said, "No." I don't have the German record here but I remember that. My colleagues have told me that Hoellenreiner has been convicted for theft, fraud, assault, etc. Therefore, I went to the penal registry and the officials said that as a private person he could not give me any information. I must, therefore, ask the Court to help me. I went to the Secretary General's Office yesterday and he also told me that witout an order from the Court the Secretary's General's office could do nothing. It is without doubt necessary in judging this witness to determine whether he told the truth on this point or not and whether we are dealing here with a decent person or with a person who has been repeatedly convicted.

MR. HARDY: Your Honor, Prosecution wishes to point out that I believe my words at the time of the interrogation here in the Tribunal in connection with the witness Hoellenreiner were due to the confusion and due to the conduct of the witness. I had no further questions at that time — that is in answer to the defense. Secondly, defense counsel have called witnesses back to the stand, and third, the testimony of Karl Hoellenreiner is deemed to be essential and necessary in this case. Be whatever his record may be that the prosecution has no knowledge of, he was experimented on in the sea water experiments and has knowledge of them and, in addition to that, he underwent at least one of them.

THE PRESIDENT: Counsel for the Prosecution having requested the right to call Karl Hoellenreiner again to the stand, the Court, having heard counsel for Prosecution and counsel for the defendant Beiglboeck in resistance of Prosecution's application, it is the order of the Tribunal that the witness Hoellenreiner may be recalled to the stand.

Counsel for the defendant Beiglboeck may have an order of the Court which will assist him in procuring any record of the witness Hoellreiner at Erlanger. If a request will be presented it will be immediately signed and accomplished so that counsel will be aided in every way by the Tribunal in gaining the information he desires. And, of course, counsel for defense may rebut the testimony of this witness. Under all circumstances the weight to be given to this witness called before the Tribunal is for the Tribunal to determine. Counsel will have the privilege of cross examining the witness. The witness may be recalled to the stand being under custody under order of the Tribunal, he will be under guard at 1:30 o'clock this afternoon.

DR. GAWLIK (for the defendant Hoven): Mr. President, in the list of exhibits which are to be admitted which was given to you yesterday there is document exhibit 523, NO-2313. I intend to have a handwriting expert text the correctness of this document and offer an opinion. An expert is here in the building and I ask the decision of the Tribunal that the handwriting expert be allowed to examine the document in the General Secretary's office.

THE PRESIDENT: What is the number of that exhibit, counsel?

DR. GAWLIK: 523, Mr. President.

MR. HARDY: Your Honor, I haven't heard the remarks of counsel. I had the switch on the wrong number and didn't get the translation. Repeat it please.

DR. GAWLIK: Exhibit 523, NO-2313 has a pencil notation on it which was discussed here in court. I want to have a handwriting expert examine it.

THE PRESIDENT: Counsel is correct. A handwriting expert produced by counsel for the defendant Hoven may examine the document in the office of the Secretary General under supervision by an official of that agency.

The clerk of this court will advise the Secretary General that the Tribunal has made this order for that examination.

MR. HARDY: What reference is that — to the notation of the date which is on the document?

THE PRESIDENT: Yes.

DR. GAWLIK: And then on the list, Mr. President, there are documents, Exhibit 526 and 527, NO-2366 and NO-2380, which are now to be finally admitted. Document 527, NO-2380 is a legal opinion by the SS judge, Dr. Morgan. I believe it is not permissible for legal opinions to be handed in as exhibits.

THE PRESIDENT: Counsel may present the objection when the exhibits are offered.

DR. GAWLIK: Then I should like to call the attention of the Tribunal to the fact that the final decision about the admission of the affidavit of the defendant Hoven, NO-429, Exhibit 281, has not been reached yet. The Tribunal postponed this decision until after the defendant Hoven was examined. I should be grateful if I could have this decision so that I can consider it in writing my closing brief.

THE PRESIDENT: Is that exhibit contained in the list which is before the Tribunal?

MR. HARDY: Subject to the president it was admitted in evidence due to the fact it was not stricken by the Tribunal I assumed it was admitted.

THE PRESIDENT: The exhibit will be admitted in evidence.

MR. HARDY: I believe, your Honor, defense counsel was to prepare a list as to how many remainder of supplemental documents would be presented and that list was to be ready here this morning at 9:30. I wonder if they have it ready?

THE PRESIDENT: Has defense counsel prepared the list suggested by the Tribunal yesterday afternoon as to the exhibits they propose to offer?

Any defense counsel now prepared to offer any further documents?

MR. HARDY: Your Honor, I am not in a position to put any more prosecution evidence in at this time in as much as this document marked for identification, the index, which I checked yesterday afternoon there is a couple of errors in it — inasmuch they skipped some of the documents in cutting the stencils. I am having it recut and the books put together in a proper form. I didn't check it before they cut it but I won't have it ready until afternoon but I assure you I can take up the rest of the afternoon with the witness Hoellreiner and I think I will have my identification documents ready.

DR. FLEMING: Mr. President, the list of when it might be expected that defense counsel could offer further material has not been completed because we have not been able to get in touch with some of the defense counsel. But, yesterday I talked with the Secretary General about the subject of translations and he told me we had to expect the translation branch to take about two weeks from the time documents are turned over to them before completed, Now, in the last discussion which the Court had with defense counsel the Tribunal said that all supplemental documents would be accepted which were handed in to the translation by the 3rd of July. I believe there will be considerable difficult if the Translation actually takes two weeks for completion.

THE PRESIDENT: If counsel understood the Tribunal to answer that all documents handed in for translation by the 3rd of July would be accepted it is in error. I am informed by the Translation bureau that counsel Fleming for the defendant Mrugowsky on last Friday, June 27 handed in I think 153 pages of a document to be translated. That was entirely too late to hand documents in for Translation. That means a task of 153 man hours to translate. I can't understand why counsel was so slow in handing those to the translation department. To hand them in on June 27 is too late to be presented for admission — was entirely too late and beyond any human possibility of having them ready.

DR. FLEMING: Mr. President part of the documents came into my hands only very late but I would like to point out something further. The closing briefs of the defense counsel — I don't have all the figures together, but as far as I can see now will be 1800 to 2000 pages. The Tribunal said that closing briefs had to be ready by 7th of July. If the translation takes two weeks we will not be able to get the closing briefs in time and Mr. Vartena told me yesterday that would take up this matter with the Tribunal once again.

MR. HARDY: As I understood it, your Honor, the Tribunal was anxious to have the closing briefs into the translation department before 7th of July and then the translation would have the closing briefs of defense counsel Prosecution could read in German using some of our German speaking attorneys. And, if we had any answers to make we could do so but to file the briefs in the original language by 7th of July and then it could be sent to translation and by the time the case is completed, the Tribunal would have the briefs in very good form.

THE PRESIDENT: My recollection is that counsel for prosecution is correct. That the briefs were to be made by 7th of July in the German language and copies of the briefs in German furnished to the Prosecution. The matter of briefs is an entirely different proposition from the matter of the documents which are evidence because as the Tribunal stated the Tribunal has insisted, that the evidence be all before the Tribunal very promptly. I don't know — the Translation department has been working very hard and I understood they would have some of the defense documents available from day to day, today, yesterday and tomorrow. Can any German defense counsel give the Tribunal any information as to how many documents are in the hands of the translation department besides the 153 pages on behalf of the defendant Mrugowsky? Has any defense counsel present before the Tribunal this morning any untranslated documents in the hands of the translation department?

MR. HARDY: If your Honor please. If your Honor can see fit to recess for fifteen minutes, the Prosecution will endeavor to get our documents marked for identification and bring then here and present them at this time. In the meantime, defense counsel can have a conference and make out a list of just what documents they have at the translators and what documents they intend to produce.

THE PRESIDENT: The Tribunal would suggest, or indeed insist, that defense counsel furnish some data of that nature to the Tribunal. Could not the Prosecution call the witness Hollenreiner this morning.

MR. HARDY: We can call the witness Hollenreiner any time your Honor pleases.

MR. PRESIDENT: I suggest that you call the witness Hollenreiner now.

MR. HARDY: It will take several minutes for him to be brought up from the jail, your Honor.

THE PRESIDENT: Naturally.

DR. FLEMMING: Mr. President, this noon, after the recess, I shall hand in a list of the defense documents which are not yet translated.

MR. HARDY: It should also be called to the attention of the defense counsel that attorney Steinbauer should be called to the Courtroom for this examination of Hollenreiner.

THE PRESIDENT: The Tribunal will be in recess; the witness Hollenreiner may be called and the Tribunal advised as soon as he is ready. Counsel in the meantime will endeavor to procure this list of his documents.

MR. HARDY: Thank you, your Honor.

THE PRESIDENT: Dr. Flemming?

DR. FLEMMING: Mr. President, I have just heard that Dr. Steinbauer has probably gone to Furth in connection with this Hollenreiner matter so that he will not be present. I shall find out immediately.

THE PRESIDENT: I don't understand how Dr. Steinbauer could have done that because the Tribunal has signed no order that will enable him to procure the information which he desires. He has probably gone to his office to prepare the order.

If you can advise him the witness will be called this morning; but he cannot have left, because if he is going without that order it would be useless.

The Tribunal will now be in recess until the Tribunal is advised that counsel is ready with the witness Hollenreiner.

(A recess was taken.)