1947-07-02, #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 2 July 1947, 0930, Justice Beals, presiding.

THE MARSHAL: Persons in the court room 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 court with the exception of the defendant Oberheuser, absent due to illness.

THE PRESIDENT: The assistant Secretary General will note for the record the presence of all the defendants in court save the defendant Oberheuser who has been excused on account of illness.

The assistant Secretary General has an announcement to make for the benefit of defense counsel. Will the assistant Secretary General take the podium and make his announcement.

ASSISTANT SECRETARY GENERAL: I wish to take this opportunity during open proceedings to clarify some administrative matters with the defense counsel. It is frequently difficult for me to clarify those points with you individually because of difficulties in German and English. I don't speak too well in German and I don't understand too much.

Bearing in mind that unless your documents are properly submitted to me and in certain form your case will be jeopardized to a certain extent because I intend making a report to the Tribunal on the condition of those exhibits prior to the time they are considered. I placed a piece of paper on each desk and I wish you would make these notes as to what information I require.

First, I would like to know how many document books have been prepared for each defendant. Listed under those document books as supplements there is an additional group of documents. For example, you have Document Book I and Supplements 1, 2 and 3 to Document Book I, etc., down to 4 or 5 document books. In addition to that, I need to know what exhibit and the corresponding document numbers are found in those document books and supplements. I need to know the document book and page on which those documents are found. I need to know what was the date when the document was formally accepted into evidence. Further, I need to know what witnesses have appeared on the behalf of your defendants and what date they appeared.

Recently, I sent to each member of the defense counsel a list, that is a mimeographed or typewritten form, for you to fill out and Captain Rice asked you to fill that out and send it back to me. I wish that you would bring that up into final form and submit it to me at the termination of your case, some time in the next few days. I have only two of those so far. If you have turned this in to Captain Rice get it back and make a complete report to me on that matter.

Some time within the next few days I would like each and everyone of the defense counsel to come into my office, which is room 272. Bring your secretary and consult with me on the matter of those exhibits, bearing in mind that I have only been in this case for a couple of weeks and there is a lot of information which I don't have and must have to certify the record in its final form when it is sent forward for review.

I would appreciate your cooperation in that respect.

Now, I might ask before I leave the podium if there are any questions from defense counsel. Perhaps Dr. Servatius could speak for the defense counsel and ask any questions, or any other counsel if you have any questions. It is fairly simple. Give me a complete picture of your documents, your document books, the exhibits, the exhibit numbers, and the pages oh which they are found in the document book.

DR. SERVATIUS: Mr. President, the only objection I can submit is a lack of time. We all have only one secretary each. We shall hasten to meet the wishes of the Secretary General so far as we can; we are also interested in achieving clarity in this matter. I shall, therefore, be grateful if we could have a certain extension of time because we also in addition to this have to conclude our closing briefs by 7 July. After that we can handle this matter.

THE PRESIDENT: Well, counsel, as stated by the Assistant Secretary General, this record is required by him largely for the purpose of certifying the record to the Military Governor for review of the judgment. That matter will not have to be certified for some time. So, it does not seem to me that this matter should interfere with what you have to do now. The Assistant Secretary General is required by his official duties to certify this record after it is complete, but that, Mr. Secretary General, will not have to be done until after the judgment is returned in the case. So, I think that the work need not interfere with the preparation of the briefs and the immediate pressure under which everybody is working within the next ten days.

ASSISTANT SECRETARY GENERAL: I wish to explain this further. I am not completely familiar with my records. I have the records up 99% correct and all I need is a little information from you to make sure I do have them correct. Maybe you misunderstood me or I didn't make myself clear in that respect, but a visit, not necessarily from you, from your secretary or your assistant defense counsel, would serve the purpose, Just come to me sometime before you leave Nurnberg and finish this case and see that you have completed your records. This can be taken care of in a matter of a few minutes. It is very simple. Thank you.

MR. HARDY: May it please the Tribunal, Dr. Tipp introduced an affidavit concerning the translation of document NO-185. Prosecution feels that they do not wish to reach an agreement as to the acceptance of that translation. Prosecution has submitted a translation on review of their Translation Department which they wish to contend to be the proper translation. The defendants Schroeder and Becker-Freyseng, represented by Dr. Tipp, have an alternative translation. Prosecution will not object to the admission of the affidavit as to the alternative translation and feel it should be left up to the Tribunal to decide on the basis of the context and any other evidence, which meaning is intended.

THE PRESIDENT: Very well.

MR. HARDY: If the Tribunal wishes Dr. Tipp can read his new translation into the record or would you like to have that prepared in another form? And Prosecution will read theirs in again. However, ours does appear in the record on one occasion.

THE PRESIDENT: I don't know in what form Dr. Tipp's statement is prepared.

DR. TIPP: Dr. Tipp for Schroeder and Becker-Freyseng. The new translation, Mr. President, has been prepared by me in the usual form of an affidavit which was drawn up by the head of the English Department of the Interpreters Institute of the University of Heidelberg. I think it would be well if this affidavit could be read into the record in the same way that the expert opinion on the part of the translation branch was read into the record. The translations are not yet in.

THE PRESIDENT: Very well, counsel. Proceed. Well, then I would suggest we wait until they are in so that we might follow you. How long is the affidavit, counsel?

DR. TIPP: This affidavit is two pages, your Honor.

THE PRESIDENT: You may proceed to read it now.

MR. HARDY: He has the affidavit both in English and German language it is notarized in both languages. Seems to me that he could have a stencil cut today. It would only be a matter of 10 or 15 minutes.

THE PRESIDENT: We expected we would have copies. We would like that but I since counsel brought the matter up he may read it into the record and furnish the stencil later.

DR. TIPP: This is Becker-Freyseng Document No. 80.

MR. HARDY: It would be difficult for the translators to follow in this brief argument that is prepared in the affidavit without copies unless he goes very slowly. I think it could be taken up later.

THE PRESIDENT: Very well, we will wait until the English translation comes in.

DR. TIPP: This is Becker-Freyseng Document 80.

We have the English translation, Your Honor, if you would like to have it read now.

This is an affidavit by Franz Rudolf Mattis, who as I have already said is chairman of the English Department, of the Interpreters Institute, University of Heidelberg. The document reads:

Expertise: The Document No. NO-185, submitted by the prosecution contains the following sentences:

Ich stehe heute wider vor einer Entscheidung, die nach zahlreichen Tier-und auch, Nenschenversuchen an freiwilligen Versuchspersonen eine endgultige Losung verlangt: die Luftwaffe hat gleichzeitig wei Verfahren zum Trinkbarwachen von Meerwasser entwiekelt.

The question to be clarified is whether this sentence is ambiguous, and what translation does it justice.

The sentence is somewhat slipshod, apparently written or dictated in haste. However, the stylistic defects — such as "a decision which demands a solution" — do not affect the logical implications of the sentence: these rather derive from the adverbial modifications "after numerous experiments on animals and human beings too" (nach zahlreichen Tier — und auch Menschenversuchen) and "upon voluntary test persons" (an freiwilligen Versuchspersonen).

If this sentence is spoken rhythmically as it ordinarily would be, a definite rest follows "Manschenversuchen", leaving the adverbial phrase "an freiwilligen Versuchspersonen" to be related to the verg "verlangen." Thus, the following English translation results:

I stand today again facing the necessity of making a decision which, after numerous experiments made upon animals and human beings too, demands conclusive experimentation on voluntary test persons.

If, on the other hand, the German sentence is arbitrarily read in some such way as:

Ich stehe heute wieder vor einer Entscheidung, die nach cahlreichen Tierversuchen — und auch Nenschenversuchen an freiwilligen Versuchspersonen eine endgultige Losung Verlangt.

The English equivalent would shape as follows:

"I stand today again facing the necessity of making a decision which, after numerous experiments on animals as also on voluntary test persons, demands conclusive investigation," Such arbitrariness, however, seems to me indefensible.

It follows the signature and certification by the Notary, in Heidelberg.

THE PRESIDENT: The affidavit may be received in evidence.

MR. HARDY: Your Honor, in order to keep the record straight it might be advisable to read the Prosecution's translation at the same time with this one, so it may be put in. This memo has been put in the record before. I merely will read the prosecution's contention. Document NO 185, is that the translation in issue should read as follows:

Today again I stand before a decision which after numerous animal as well as human experiments on voluntary experimental subjects demands a final solution.

THE PRESIDENT: Very well. The record is now in concise form before the Tribunal.

The Tribunal has received Supplement IV, document on the defendant Brack.

Counsel may proceed to offer these exhibits.

DR. FROESCHMANN: Froeschmann for Brack.

This morning I was informed, Your Honor, that supplemental Volume IV has been translated into English and handed to the Tribunal I was further informed that Supplemental Volume V, which was turned in day before yesterday to the Translation Department has not yet been translated.

The documents from Document Book V which have not yet been translated, amy I put them to the Tribunal in the original German, so that I can conclude the presentation of these this morning?

THE PRESIDENT: Yes, counsel may do that with the consent of the Counsel of the Prosecution. Is that satisfactory with the prosecution?

MR. HARDY: My understanding is he is going to offer Supplemental Book V in the German. I will follow him with the original exhibits, Your Honor. It is perfectly satisfactory.

THE PRESIDENT: Counsel may proceed.

DR. FROESCHMANN: I shall then put in from supplemental book IV for Brack, Document 55, the affidavit —

THE PRESIDENT: Counsel, the first document in this book is Document 53.

DR. FROESCHMANN: Yes, but I wish to put these in somewhat more different order, in order to make them more perspicuous for the Tribunal, and I wish to begin with Document 55.

THE PRESIDENT: Very well, Counsel.

DR. FROESCHMANN: The first document will be Document 55, affidavit by Heinz Heggenrainer, 8 May 1947, Exhibit 45, which is on page 13, Book IV. It is signed by Heggenrainer and certified by the local Mayor. I shall now give the original to the Secretary General.

Document 56, affidavit of Karl Freiherr [Barron] Michel von Tuessling, of 9 June 1947, page 15, Book IV. Document 56, Exhibit 46. Now, from supplemental Volume V, which the Tribunal does not have, I put in further affidavit —

MR. HARDY: I don't see the reason for jumping around from one document book to another. Why can't he content himself with Book IV, and then go to document book V.

THE PRESIDENT: Yes. Counsel, proceed with Document Book IV, and then proceed to Document Book V.

DR. FROESCHMANN: Then I continue with Document 57, affidavit of Thea Brack, 7 June 1947, Document Book IV, page 7, Exhibit 47. The original I am now handing to the Secretary General. This proves that the defendant Brack, as brought to light in my defense in June 1944, met Brigadefuehrer [Brigadier General] Globocnik in Berlin.

Now, comes Document 53, the expert opinion of Dr. Walther Rump, 11 June 1947, Exhibit 48.

MR. HARDY: I must object to this affidavit. This affidavit of Dr. Rump contains information concerning the availability of X-ray tubes, and their consistency. On page 4 it says they are no longer available after 1942, and on page 9 it states no longer available after 1941. As to the probative value of the document, it seems there isn't any. If X-ray tubes were available in 1942 they certainly would be available in 1941, and it seems that X-ray could be performed if there was one tube as the witness Belicky said he was sterilized by X-ray machines, and the photographic evidence bears this out. The affidavit shows inconsistency in dates. This affidavit has no probative value whatever, and is immaterial when the manufacture of these tubes took place.

DR. FROESCHMANN: I do not understand the prosecution's objection. In Dr. Rump's expert opinion of 11 June 1947, it states on page 9, perfectly clearly, consequently it is my task to ascertain whether at the beginning of 1941 it was technically possible to administer an X-ray dose of 300 r to females and 500 r to males, in order to bring about a state of sterility. The date mentioned here is 1941.

This, Your Honor, is on page 2 of the English translation, sentence before the last.

Now, Document NO 203 and 205 referred to the date March 28, 1941. In other words, this expert is investigation the possibilities of permanent sterilization at precisely the time that this report is drawn up.

Therefore, I cannot understand why the prosecution wanted to say that this expert —

THE PRESIDENT: Counsel, the Tribunal will receive this document in evidence. Counsel for the prosecution may call attention to any discrepancies therein in the prosecution's brief and supplemental brief. This document will be admitted as Brack Exhibit 48.

DR. FROESCHMANN: In this affidavit, I should like to draw the Tribunal's attention to the concluding passage which states the expert's opinion that at that time it was not possible to carry our a permanent sterilization in this way.

The next document will be Document No. 54, an affidavit of Pleikard Stumpf, 20 June 1947, page 10. He considers the question from the specialist's medical point of view whether on the basis of report NO. 205 sterilization was possible. He says "No". I gave the original to the Secretary General. This is Brack. Exhibit No. 49.

The next document will be Document No. 58, an affidavit of Mrs. Thea Brack of 7 June 1947, page 18. The prosecution yesterday put those two documents in which I objected to, from which the representative of the prosecution, Dr. Hochwald wanted to prove that Brack participated in the extermination of Jews. In the cross-examination, I have already raised an objection to this and in three exhibits I have proved that during the time from September, 1941 until the end of October, 1941, the defendant Brack was on sick leave in Southern Germany and in Tyrole. The details of what went on during this sick leave are to be ascertained from this affidavit, of Mrs. Brack, which I new put in as Brack Exhibit No. 50.

In this connection, I likewise put in as the next document, Document No. 59, an affidavit by Walther Kleffel, dated 24 June 1947. He also confirms that in October of 1941, Brack was in Southern Germany, and Tyrole on vacation and consequently between the 18th and 25th of October he could not have had any conference with Wetzel. This document will be Brack Exhibit No. 51.

So much for Book 4.

Now, Book 5, containing affidavits, to wit; the following five documents, two of these documents contain affidavits by the Defendant Brack, regarding the documents which were put to him during the cross-examination or put in very recently. These are documents No. 63 and 64.

MR. HARDY: Your Honor, I challenge the admissibility of affidavits concerning documents which we put to the Defendant during cross-examination; he had ample time to explain the documents at that time; the purpose of them during the cross-examination were rebuttal in nature.

The defense counsel had an opportunity to re-direct the defendant and did so, I don't think that it is necessary now or I think good practice to accept affidavits of that nature.

THE PRESIDENT: Counsel, when defendant Brack was under cross-examination and those documents were called to his attention, you had ample opportunity in re-direct examination of the defendant Brack to cover these documents. What is the necessity for future documents now?

DR. FROESCHMANN: I did that in the re-direct examination, too. I put a number of questions to the Defendant Brack, which referred to these documents. Two of these documents were these documents that referred to the fact that Brack with some, Wetzel, in October of 1941, negotiated regarding the extermination of the Jews; that is the allegation. On the basis of the documents then put in, I have in the meantime put forth considerable efforts to find where Wetzel was at this time. I even asked the prosecution to make the radio available to us, so that I should have that opportunity to find this Amtsgerichtsrat [Magistrate] Wetzel and get in touch with him. I personally went to various camps in which internees were shown to me whose names were Wetzel, but I did not find that man. I believe, therefore, that it is Brack's right, in view of all that I found out in the meantime, to make supplemental explanations — and these are only supplemental explanations in that documents. I consequently ask that these documents 63 and 64 be accepted in evidence.

MR. HARDY: Your Honor, I don't see the necessity for the admission of this evidence. It is very apparent that Brack is now executing an affidavit in rebuttal to the documents, which were presented to him in cross-examination. I think we have taken ample time of the Tribunal in direct, and re-direct cross-examination. I also believe that the charges against Brack are perfectly obvious and he is not like some of the other defendants, having eight or nine charges against him.

He has a minimum number of charges, namely Euthanasia and Sterilization, they were presented and amply covered during cross-examination and re-direct examination. This would now give a chance for the defense to open rebuttal evidence.

THE PRESIDENT: It would seem that the defendant Brack had ample opportunity to discuss these documents. Neither the defense or the prosecution can keep on indefinitely presenting evidence when he has ample opportunity to rebut them. These documents will not be received in evidence. The objection is sustained.

MR. HARDY: It is my suggestion that inasmuch as these documents are not admitted into evidence that the Translation Department will be given notice that Documents Brack Nos. 63 and 64 are not being received in evidence. This will save them that much difficulty down below.

THE PRESIDENT: Very well, if you can send that word to the Translating Department.

DR. FROESCHMANN: I can quite understand the ruling of the Tribunal to the extent that it applies to documents presented during cross-examination, but these documents were put in last Saturday. Brack had not had opportunity to answer them.

MR. HARDY: Your Honor, the documents put in last Saturday again were clearly rebuttal. The defendant Brack was the last one to take the stand on Euthanasia and since then no other affidavits or no other witness were presented concerning the question of Euthanasia since he left the stand. The other was rebuttal evidence. It seems to me that the defense counsel is not aware of the theory of rebuttal evidence.

THE PRESIDENT: Documents and all evidence of this nature might be admitted for the purpose of attacking the credibility of a witness or of a document, but insofar as it concerns rebuttal evidence which the defendant had an ample opportunity to introduce, it is not admissible. The Tribunal not having the documents before it is somewhat under a handicap, but from the explanation made it does not appear that these documents are admissible.

DR. FROESCHMANN: Document No. 60 will be Exhibit 52. This affidavit by Tuessling concerns Brack's activities in having prisoner's released for Christmas, Hitler's birthday, etc., from concentration camps. I just received this a couple of days ago. This is Brack Exhibit No. 52.

My next to last document will be document No. 61. This is an affidavit by Charlotte Brack, who is a distant relative of the defendant Brack, in which also the fact is confirmed that the Defendant Brack in October of 1941 was on a vacation. This is Brack Exhibit No. 53.

And my last document is a No. 62. In the document in which Brack is accused of participating in the extermination of Jews by having a conference with Amtsgerichtsrat Wetzel, the prosecution has repeatedly said that Brock sent his Chemist, Kallmeyer, to Riga or somewhere on the Baltic Coast. I have succeeded in getting an affidavit from Dr. Kallmeyer. That is the last I should like to read into the record because it is very brief and proves definitely that the defendant did not do what he is accused of by the Prosecution.

Kallmeyer says:

Neither in the autumn of 1941 or at any other time was he ever in Riga or the Baltic region. Brack never spoke about sending me to Riga in order to get the necessary data, and apparatus.

Secondly, I know neither Amtsrat [Magistrate] Wetzel from the former Reichs Ministry of the Occupied eastern territory or the SS Polizeifuehrer [Police Leader] for the Ostland. I know nothing of any request that he was to be sent into that region.

The affidavit is dated 20 June 1947, signed by Kallmeyer and certified by the notary in Kiel. That is Exhibit No. 54.

MR. HARDY: I request that defense counsel take the affidavit of Kallmeyer and tell us for the purpose of the record the present address of Kallmeyer.

The prosecution wants his address, will you read into the record the present address of the witness Kallmeyer?

DR. FROESCHMANN: The address is Huetten/Nieniborstel.

MR. HARDY: Where is that?

DR. FROESCHMANN: In Schleswig — Holstein.

MR. HARDY: Thank you.

DR. FROESCHMAN: This excluding the affidavit from Holst which the Tribunal promised to admit a few days ago, concludes my exhibits.

THE PRESIDENT: The exhibit will be admitted with the exception of the two against which the objection was sustained.

DR. SAUTER (Sauter for Blome):

I have only one more document to put in for Blome, an affidavit by the defendant Blome dated 1 June 1941, correctly certified. It has not yet been translated but is in this process. This affidavit concerns itself with a document which the Prosecution put in on last Friday, namely the document in which a file note is contained, regarding a conference with business manager Dr. Haubold of the Foreign Department of the Reich Chamber of Physicians, and in some way or other this is supposed, to incriminate the defendant Blome.

Of this Foreign Department of the Reich Chamber of Physicians there had never been any mention before last Friday in this trial; Dr. Blome has drawn up an affidavit to that effect and it is very brief. I quote —

MR. HARDY: Your Honor, I question the admissibility of this before he starts reading it inasmuch as the Prosecution has charged Dr. Blome with medical experimentation in general. Dr. Blome has denied any knowledge of medical experimentation and when examined by me on cross examination many, many weeks ago, emphatically denied any knowledge of these matters and this document which is introduced by the Prosecution in rebuttal clearly shows Professor Blome had some interest in the matter and had some knowledge, and in the eyes of the Prosecution is a perfectly proper rebuttal document.

DR. SAUTER: This point of view by the Prosecution in this very last moment in the taking of evidence makes a matter of principle of this whole business and I cannot understand how it is possible or permissible for the Prosecution on the last day or next to the last day of a trial that has lasted months to put in a whole lot of new documents with new charges and then say these are all rebuttal documents, and, therefore, the defendant has no right nor occasion to make any statement regarding them.

In this document which was put in last Friday a brand new assertion was contained, namely, the assertion that there was a Foreign Department in the Reich Chamber of Physicians, and this is the assertion that Blome was responsible for it in a criminal way, because we are dealing in this trial only with crimes. Now the Prosecution just states in a more or less stereotyped way this is not a charge against Dr. Blome, but obviously all of these documents are put in to incriminate the defendant, and it seems to me that justice demands that the defendant make new statements regarding these documents. These documents could have been put in months ago, as well as last Friday. We are not allowed to throw in such documents at the last moment, and consequently I don't think the Prosecution should have the right to put in whole volumes of documents to which we can make no objection; that would be unjust, and Mr. President, if that is considered to be just, we should leave this room with the feeling that the defendants were not given their full rights in this regard.

THE PRESIDENT: Counsel, was this document to which you refer put in by the Prosecution exhibited to the defendant Blome while on the stand by way of cross examination.

DR. SAUTER: No.

THE PRESIDENT: Well if this document which the Prosecution recently put in was not exhibited to the defendant Blome on cross examination, the Tribunal will receive the document now, offered by Defendant Blome.

DR. SAUTER: This affidavit by Blome makes a statement regarding the new charges that were made against him last Friday in a new document. He says, and I quote the affidavit. It is very short:

From 1939 until 1943 I was Deputy Director of the Reich Chamber of Physicians, the chief of which was Dr. Conti, and in this capacity he bore the title "Reich Physicians Leader". Pursuant to the law it made up the Reich Chamber of Physicians of 13 December, 1940. The representation of the Reich Physicians leader was stipulated as follows:

Paragraph 1, Section 1 reads as follows:

The leader of the Reich Chamber of Physicians (The Reich Physicians Leader), looks after the interest of the Reich Chamber of Physicians and represents that chamber legally and otherwise. He has a permanent deputy. He can also authorize other persons to represent him in certain instances, or to watch after the interests of the chamber", that is the conclusion of that paragraph 21.

Blome continues:

That among those people whom the Reich Physicians Leader gave the right of Deputy, among those who did not belong under the authority of the Reich Physicians Chamber of the Reich Physicians Leader was Dr. Haubold, leader of the Foreign Department. Others also, such as the director of the Financial Department and the Department for Medical Post Graduate Training and Press, were in the same category. I, according to orders from Dr. Conti had neither the right to give orders nor the right to supervise. I only saw Dr. Haubold, the leader of the Foreign Department only occasionally, perhaps every a quarter of a year. Dr. Haubold took care of this office at the same time as he had jobs outside the Reich Chamber of Physicians. In his capacity he was director under Dr. Conti, for example in the resettlement of Germans from Russia. In these other fields of work of Haubold, I had no insight at all, nor do I know anything about the financial matters of the foreign department. In this respect, on Conti's orders, this department was so independent that not even my referent for business matters had insight into these financial matters.

The question whether Dr. Haubold ever discussed the value of the production of the typhus vaccine with me or the question of human typhus experiments I can only deny emphatically.

Nurenberg, 1 June 1947, /s/ Kurt Blome.

This is Blome Document 27, and it will be Exhibit 25.

That concludes my defense, Your Honors.

DR. SERVATIUS: Dr. Servatius for Karl Brandt.

THE PRESIDENT: Well, Doctor, I do not believe the Tribunal has received the English documents for Karl Brandt.

DR. SERVATIUS: This is document 117, that I put in to the Translation Department two weeks ago and haven't yet received back. It is an elaborate and a most important document in my case.

THE PRESIDENT: My point merely was we have some English documents here for other defendants and we could more conveniently proceed with those of which we have the English translation and wait until the English translation of your document arrives.

DR. SERVATIUS: That could take days. I understood today was the last day.

THE PRESIDENT: Well, I understood the documents are coming in today, at different hours, from the translation department and in the order as they come in we would proceed with those which we already have in English. If today is not long enough to receive all of these documents an opportunity will be afforded you to put in the documents later, but we have some in English here and I thought we could proceed with those more advantageously.

DR. SERVATIUS: Then I shall wait.

THE PRESIDENT: The Tribunal has some documents on behalf of the defendant Mrugowsky, I think, Book III. Has the Secretary any of these document books on behalf of the defendant Mrugowsky?

THE SECRETARY: They are not here yet.

MR. HARDY: I do not have any Mrugowsky books, Your Honor.

THE PRESIDENT: These were delivered to me this morning by the Translation Department.

MR. HARDY: Your Honor, is it possible that they delivered the copies to the Presiding Judge inasmuch as you know the order in which you wish them in order to present them?

THE PRESIDENT: None but these were delivered to me.

MR. HARDY: You don't happen to have a fifth copy so that one could be available to me, do you?

THE PRESIDENT: I have two copies of this book apparently. I think it mostly consists of the transcript taken from the evidence in the Pohl trial.

MR. HARDY: Does Dr. Flemming have an extra English copy?

DR. FLEMING: One of the books contains these excerpts from the Pohl trial. The other book contains affidavits.

THE PRESIDENT: I have a German Document Book, Supplement III for Mrugowsky, but no English translation.

DR. FLEMING: Three contains the excerpts from the Pohl case, and Book II contains the affidavits.

MR. HARDY: In the case of Book III, there would not be any translation problem since already the English and German exist.

THE PRESIDENT: I'll hand Counsel this German Document Book III, Mrugowsky.

MR. HARDY: The German will not help me much. If the English exists I do not see why I could not have it now and then follow him more handily with the English. If he is introducing excerpts from the Pohl case, which are five excerpt and I can see that the Secretary General has certified them to be true copies, then I have no objections, I can read those later. But of the other Document Book, I would like to read the English. The only question with regard to those excerpts from the Pohl case, that is the trial downstairs, is whether or not they are certified by the Secretary General. If they are, there would not be any objection by me, and I can get the copies later.

THE PRESIDENT: I'll hand these to Counsel and he may examine them. They were handed to me just before the opening of Court. I had no opportunity to examine them.

DR. FLEMMING: On 25 June, I gave these documents to the Secretary General with the request that they be certified. Whether the Tribunal already has them in certified form I do not know. At least, they are all mimeographed copies.

THE PRESIDENT: The Translation Department informs me that these were turned over by Counsel for Mrugowsky only last Friday, on June 27.

MR. HARDY: In this case of Document Book III, there actually was not any necessity of turning it over to the Translation Department.

All you have to do is request 15 copies of the German transcript, the pages that you need, 15 copies of the English transcript, take the copy to the Secretary General and have it certified and submit it to Major Hatfield as an exhibit. He does not have the exhibit, and he does not have the English; and that is something that should not go to the Translation Department.

THE PRESIDENT: That should not have gone to the Translation Department, except that I assumed that it was accompanied by certain affidavits.

MR. HARDY: That is another book.

THE PRESIDENT: Are those copies certified?

DR. FLEMMING: Mr. President, I did not send this Document Book to the Translation Department. I sent it right to the Secretary General and asked him to certify it, because there are already English translations of those passages from the original transcript. On 25 July I gave them to the Secretary General to be certified.

THE PRESIDENT: In some mysterious way it appears to have landed on the Translation Department, but, of course, it should not have taken any of their time, since only certified copies of the transcript before another Tribunal were required.

MR. HARDY: These two volumes you have handed me, Your Honor, are merely certified copies of somebody's transcript file, which I will hand back to you.

THE PRESIDENT: Just keep them. It will be possible to have them certified by the Secretary General.

MR. HARDY: These apparently belong to somebody's completed file. They may possibly be from your file.

THE PRESIDENT: They were handed to me by the Translation Department directly. I noticed that, but I —

MR. HARDY: I'll return them to the Translation Department.

THE PRESIDENT: Well, no, just return them to me. They delivered them. We then have no English translation of Mrugowsky Document Book III.

DR. FLEMMING: The translation of Book II is not ready either, I assume—Supplementary Book II.

THE PRESIDENT: Apparently it has not been received. Are there any other completed Document Books that have been turned over to the Secretary of the Tribunal?

DR. FLEMMING: The translation Department has had them since last week, and yesterday—

THE PRESIDENT: Since last Friday, Doctor.

DR. FLEMMING: Since Thursday or Friday, yes, and the Chief of the Translation Department said yesterday that they would be ready today, so perhaps I can postpone my presentation until the translation is here.

THE PRESIDENT: We will wait a few minutes, Doctor. You may resume then.

MR. HARDY: Your Honor, I just received Prosecution Rebuttal Document Book 19. I can proceed with that in a few moments if I get the other copies.

THE PRESIDENT: Very well, Counsel.

MR. HARDY: I'll have to wait until I receive the German copies for the German Counsel to follow me. Your Honor.

THE PRESIDENT: While the Tribunal is in recess, will Counsel—

MR. HARDY: It could well be that I could take up the introduction of these in the same manner that Defense Counsel have in that I put in the English of Rebuttal Document Book 19 and complete that. I don't believe there will be any objection to some of these. However, I will have to get the original of the exhibits. If there are any of the other Defense Counsel that have document books ready to put in, then I could get these well arranged and put them in a more systematic manner.

THE PRESIDENT: Have any Defense Counsel any document books that are ready to be presented? How many Defense Counsel have further document books to offer?

(Show of hands by Defense Counsel)

THE PRESIDENT: Six— During the morning recess will Counsel for defendant Mrugowsky take up with the Secretary General the matter of the certification of these extracts from the Pohl trial that he desires to introduce in evidence. The matter will be taken up with the Translation Department to ascertain what is available from there.

MR. HARDY: Your Honor, I am informed that the German copies of the Rebuttal Document Book are not ready. I'll not be ready to proceed with those. The transcript of the interrogation of the defendant Hoven was in English. That had to be translated into German. They have not got the German document book together yet.

DR. FROESCHMANN (For defendant Brack): The ruling of the Tribunal on the application by my colleague Sauter makes me believe that perhaps the Tribunal misunderstood me. I cannot talk as loudly as my colleague Dr. Sauter, so perhaps I did not make myself so clear.

The other affidavit that I wanted to put in for my client contained four short statements regarding four documents put in on Saturdays, in which Brack is accused outright of crimes against humanity, and these are new crimes insofar as he is accused of having participated in the extermination of Jews. In one document it is said that a mentally ill person died in Lublin, there was the statement that there was a euthanasia station in Lublin and that in this euthanasia station this Jewish woman was killed, this is a man claim.

THE PRESIDENT: Counsel, I understood from you that these documents that you were offering on behalf of the defendant Brack were in refutation of documents which had been exhibited to defendant Brack while he was on the witness stand and which were then marked for identification and were later introduced in evidence by the Prosecution. Is that correct?

DR. FROESCHMANN: No, your Honor. The first Brack affidavit was to refer to the document put to Brack during cross examination, and this the Tribunal rejected. Then Saturday Hochwald for the Prosecution put in new documents which had not been put to Brack during his cross examination, in which these assertions are made—namely, that in the Lublin matter that I just mention, he helped kill a Jewish insane woman secondly, that in 1942 at a conference of the Reich Ministry of Justice he delivered a lecture which Brack also has not been able to make a statement about because this was not put to him before; thirdly, a document was put in by Boehm.

THE PRESIDENT: I do not remember that Dr. Hochwald introduced any new documents. I might be wrong. I thought he was merely explaining documents which had heretofore been submitted as Exhibits for the Prosecution.

MR. HARDY: Your Honor, Defense Counsel has stated that these are new charges. I wish to call Your Honors' attention to the Indictment. In the Indictment —

THE PRESIDENT: Counsel, the question is not altogether as simple as that. As to documents which were exhibited to the defendants in the course of cross examination and were marked as Prosecution Identification, the defendant then had a full opportunity to answer those documents on re-direct examination. If other documents were offered later which were not exhibited to the defendant while the defendant was on the stand or offered by way of rebuttal, and very properly, the Tribunal is disposed to allow the defendant to deny those affidavits if they had not been called to the defendant's attention while the defendant was on the stand. That was the occasion of the ruling on the document offered by Dr. Sauter.

MR. HARDY: Well, Your Honor, suppose the situation be this — that we withdraw all the rebuttal documents and put them in when defense has completed the case.

DR. FROESCHMANN: Then I may assume that this second affidavit of mine may be put in and accepted in evidence because reference to the document was not put to Brack's attention during the time he was here on the stand.

MR. HARDY: Prosecution requests, your Honor, that the Tribunal peruse the documents we put in rebuttal in connection with the Euthanasia case to see whether or not they are rebuttal evidence. Prosecution contends they are. Therefore they are not admissible.

THE PRESIDENT: If they were exclusively rebuttal evidence and brought in no new matters they should not now be denied.

MR. HARDY: The only question is that Dr. Froeschmann is trying to bring up that we did not charge Brack with extermination of the Jews. We specifically charged him with extermination of the Jews in the Indictment. The theory of the Euthanasia case was that Euthanasia was and eventually existed in the extermination of the Jews as outlined in the Indictment. He has known from the first day he received it. It is nothing new, your Honor.

DR. FROESCHMANN: If the Prosecution now states that Brack is not being charged with participating in the extermination of the Jews, then it is clear that I do not have to do any refuting here. But Hochwald explicitly stated last Saturday that Brack was charged in participating in extermination of the Jews and I consider it my duty as defense counsel to give my client the opportunity to make statements about these new charges or documents from the Prosecution.

THE PRESIDENT: It seems clear counsel that the charge was in there against the defendant Brack in all stages of the proceedings including the indictment and when Brack took the stand in his own behalf he had the opportunity to give full testimony concerning the charges given in the Indictment.

DR. FROESCHMANN: Yes, but these are new documents, your Honor — Document NO-3356, Exhibit 552.

THE PRESIDENT: Those documents, counsel, according to the Prosecution, I have not read them recently, are simply in rebuttal to evidence of defendant Brack. He had a full opportunity to testify. Prosecution presents further evidence to the effect that the testimony of Defendant Brack is incorrect. They have that right in offering rebuttal evidence. Brack on the stand had the opportunity to tell his story. Prosecution on rebuttal has the right to show his story is incorrect. That cannot be carried on indefinitely by then denying what Brack had the right to testify to when he was on the stand.

DR. FROESCHMANN: In my opinion these documents are not rebuttal evidence but are brand new statements, brand new material.

THE PRESIDENT: They are entitled to do that, of course, on rebuttal to bring in any evidence in rebuttal. That is the purpose of rebuttal evidence — to bring in any evidence which tends to prove that the evidence by the defendant on the stand was incorrect.

DR. FROESCHMANN: Well, but then the defense ought to have a chance to state his opinion about this new evidence because it might be an obvious error. How am I going to have a chance to refer in my brief to that which might be wrong. I fully agree here with Dr. Sauter.

MR. HARDY: Your Honor, isn't it my understanding in rebuttal evidence that if we introduce any new evidence that the Tribunal will exclude new evidence in judgment. If we have offered any new documents they are clearly inadmissible and if one of the documents would be a new factor it seems to me they would merely ignore it, because the Tribunal won't pay any attention to new evidence any way.

THE PRESIDENT: On rebuttal, as stated by Prosecution, the Prosecution must limit evidence to rebuttal, refuting evidence by the defense, if there is new material in it the Tribunal is justified in ignoring it. Counsel in his brief may call attention to the fact that it is not proper rebuttal evidence and should be ignored. If there is such evidence.

The Tribunal will now be in recess and we will see what can be done to clear us these documents.