1947-07-03, #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 Nuernberg, Germany, on 3 July 1947, 0930, 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, have you ascertained if the defendants are all present in court?
THE MARSHAL: May it please Your Honor, all the defendants are present in the court.
THE PRESIDENT: The Secretary General will note for the record the presence of all the defendants in court.
Counsel for the defendant Mrugowsky may proceed.
DR. FLEMMING (Counsel for defendant Mrugowsky): Mr. President, let me at first submit Supplement 2 to my document, which is just being handed over in the English language. This is the copy without a cover.
The first document, Your Honor, will be Mrugowsky No. 103, which I offer as Exhibit No. 97. It is an affidavit signed by Dr. Koch from the firm of Madaus and deals with the incendiary bomb affair.
The next document will be Mrugowsky No. 104. This is an affidavit—
THE PRESIDENT: Just a moment, counsel, not quite so fast, we want to note these exhibit numbers on our documents.
DR. FLEMMING: The first one was Document No. 103, Exhibit No. 97.
THE PRESIDENT: All right, doctor.
DR. FLEMMING: The second document, Your Honor, will be Mrugowsky No. 104, Exhibit Mrugowsky 98. This is an affidavit signed by Professor Dr. Lentz, the director of the Robert Koch Institute in Berlin and deals with the manner in which bacterial cultures were sent away.
The next document, Your Honor, is Mrugowsky No. 105 and has already been submitted in the meantime by the co-defendant Professor Rose. I don't know whether I am to give it another exhibit number in order to include it with my own material.
THE PRESIDENT: Well, you can give it your own exhibit number, but give us a note as to the number.
DR. FLEMMING: Yes, Your Honor, Mrugowsky No. 105 will become Mrugowsky Exhibit No. 99.
THE PRESIDENT: Counsel, can you give us the number of the exhibit of Rose for this same document?
DR. FLEMMING: I shall be able to tell the Tribunal the number after recess. At the moment I am not able to do that.
THE PRESIDENT: Very well, Doctor.
DR. FLEMMING: The next document, Your Honor, is Mrugowsky No. 106 and will become Mrugowsky Exhibit No. 100. It is an affidavit signed by Professor Meyer Abich. He is a university professor and one of the best known philosophers we have in Germany. At the moment he is the leading representative in Germany of Holism, the founder of which was Field Marshal Smuts. This ideology has been fought by National Socialists during the Nazi regime. This Professor Meyer Abich knows Mrugowsky for many years and knows that Mrugowsky was a follower of Holism. He also speaks of Mrugowsky's personality.
The next document is Mrugowsky No. 107. I offer this document as Mrugowsky No. 101. It is an affidavit signed by the Kapo Arthur Dietzsch from Block 46 in Buchenwald. Dietzsch speaks in detail about the question whether Ding's diary was only something which was reconstructed or whether it was the original diary.
THE PRESIDENT: Well, counsel when you speak of the Ding diary as being reconstructed, just what do you mean? Do you mean that it has been altered or do you mean it is not a daily diary, but written up at odd times by Ding? Do you consider that the document has been forged by alterations?
DR. FLEMMING: I maintain, Mr. President, that the authentic diary has been burned. Dietzsch confirms that fact expressly. Dietzsch was present when Ding burned the authentic diary in a stove in Block 46. I maintain that the diary which Kogon—
THE PRESIDENT: I understand, Doctor. I just want to know what you mean by the use of the word "reconstruction".
MR. HARDY: Your Honor, I question the admissibility of the affidavit of the witness Dietzsch. It may be true form and it may comply with the rules of the Tribunal 100 percent, but Dietzsch was here; defense counsel announced they were going to call him as a witness so the prosecution could examine him. The Tribunal expected him as a witness and wanted to interrogate him and they found out Dietzsch did not have the information they desired, so Dr. Flemming says he did not want to call Dietzsch. Now he comes up with an affidavit of Dietzsch without the right of the prosecution to cross-examine. I don't think it is admissible, Your Honor.
THE PRESIDENT: The objection is overruled. The document will be admitted. Counsel for the prosecution may make an argument that might tend to lessen the weight to be given to the affidavit, showing those factors, but the document will be admitted.
DR. FLEMMING: In that connection, Mr. President, let me say at that time when Dietzsch was present here, I informed the Tribunal that I did not intend to call him into the witness stand and thereby delay the Tribunal, because the points about which I wanted his testimony were not known to Dietzsch and that in particular the chain of command. The prosecution said at that time—
THE PRESIDENT: Well, counsel, the objection of the prosecution has been overruled and the document will be admitted.
DR. FLEMMING: The next document, Your Honors, will be Document Mrugowsky No. 108. This will be Exhibit Mrugowsky 102. This document contains an affidavit signed by Dr. Erwin Schilling. Schilling was the chief of Department 16 ever since 1944 where he acted as a hygiene Referent. He therefore knows about the authority and the significance of the hygiene Referent at Department 16. He also knows about Ellenbeck's activity, who is repeatedly mentioned in Ding's diary and who there produced blood serum.
The next will be the affidavit by Ruoff, Document No. 109, Exhibit Mrugowsky 103. Ruoff was the chief of the SS operation office under Juettner. I beg your pardon — he was not the chief but the IA, which means that he was merely in the position where he had to deal with all questions of organization, questions of operation and questions of administration, and he testifies about the possibility of double subordination as we maintain was the case with Ding in Buchenwald.
The next document will be Mrugowsky 110, Exhibit Mrugowsky 104. This is an affidavit signed by Dr. Adolf Murthum. Murthum was one of the closest collaborators of Mrugowsky. He participated in the cold meeting at Nuernberg and in a discussion regarding Ruthenol, where also representatives of I.G. Farben, Weber and Kohlmann were present. From September 1943 until September 1944, that is, during the time between Mrugowsky and Schilling, he was the chief of the Department 16 and, therefore, can tell from his own knowledge about the relationships of command there.
The next document, Your Honors, will be Mrugowsky 112, which I offer as Mrugowsky Exhibit 105. It contains an extract from the fifth letter of Hippocrates which some time ago I put to the expert, Dr. Ivy.
The next document, Your Honors, will be Mrugowsky No. 113. This will become Mrugowsky Exhibit 106. It is an affidavit of Professor Dr. Killian, the ordinarius [full professor] for surgery at Glotterbad near Freiburg, Breisgau, at the sanatorium there. He has special experience in the field of gas gangrene and talks about the Fraenkel toxoids.
Mrugowsky No. 114 will become Exhibit Mrugowsky Exhibit 107. This is an affidavit by Dr. Konrad Morgen, who was active in Buchenwald in his capacity as an SS investigating judge.
The prosecution has submitted a number of documents originating from him. Dr. Morgen speaks about the manner in which prisoners were selected, whom he had observed carefully, and he is the only one who from his own knowledge can testify about the Chain of command at Block 46. On top of the second page of the document he states — this is the first line of the second page — I quote:
To start with, it seemed essential to obtain full knowledge of the facts. In order to clear up these crimes I had repeated talks with Dr. Ding. On this occasion Ding showed me a paper signed by Grawitz and by which he, Ding, was ordered to conduct these experiments, Ding said, 'You can see that I've been very careful. I've thought all the time that one day one of you jurists will poke his nose into this business, so I insisted on having the order in writing.'
Further down in the document he says that he was ordered to go to Grawitz at the end of these experiments in order to report to him and that Grawitz on that occasion had told him that Ding was his man and that he would regret it very much if Ding was in any way incriminated by Morgen's investigations.
He talks in great detail about the manner of selection of prisoners and also about Kogon's personality. On page 8 of this affidavit he is speaking about the special experiments on four persons mentioned in Ding's diary. Ding in this connection also mentions Dr. Morgen and Dr. Morgen testifies that Dr. Ding's descriptions about this experiment were wrong. He, in turn, describes the details of these experiments.
The next document is an affidavit signed by Udo von Woyrsch, Document Mrugowsky No. 115. It is on page 59 of the English document book. The affidavit is signed by Udo von Woyrsch, which will become Mrugowsky's Exhibit 108. Woyrsch is the man upon whose request the incendiary bombs were made with the drug R-17. He speaks about the origination of these experiments in detail.
The next document I do not want to submit. It is Document Mrugowsky No. 116.
It is an excerpt from the newspaper "The Stars and Stripes". It has no certification and I am sure that the prosecution would object to the admission of the document.
I now pass over to Mrugowsky Document No. 117, which is an affidavit signed by Dr. Scharlau. This will become Mrugowsky No. 109. Dr. Scharlau was one of the closest collaborators of Mrugowsky. Originally, I intended to call him here as a witness but I have not done so because Mr. Hardy, when I suggested to call him on the witness stand, had stated that he would not cross-examine him and, therefore, in order to save time I merely am submitting his affidavit. He speaks about the creation of the hygiene institute, about the manner in which the hygiene institute worked, about the official trips on which he accompanied Mrugowsky. He is the man who travelled with Mrugowsky during the winter 1941-1942. This is during the period when the so-often-mentioned conference on 29 December 1941 allegedly took place, which is the first entry in Ding's diary. He also travelled with Mrugowsky the summer of 1942. That is from June until the last third of August. This is the time when the sulfonamide experiments took place. His testimony shows that even during this time Mrugowsky was not in Berlin.
The next will be Document Mrugowsky No. 120 which will become Mrugowsky Exhibit 110. It is signed by Dr. Hans-Dieter Ellenbeck, also a member of the Hygiene Institute. He is mentioned in Ding's diary in connection with the blood serum and reconvalescent serum and he makes statements with reference to those. In addition to that, he carried out a number of nourishment experiments in Buchenwald.
The next document will be the affidavit by President Robert Hecker, which will become Mrugowsky No. 131, Exhibit 111. Hecker was the presiding officer at the Reich Ministry of Justice. He talks about the competence and the duties of an execution physician. This is relevant in connection with the aconitin poison bullets.
I further submit affidavit of the defendant Mrugowsky himself, which is Mrugowsky 124, and will become Mrugowsky Exhibit 112. Mrugowsky here defines his attitude towards the documents submitted after he left the witness stand. It particularly deals with the documents submitted during examination of the co-defendants Rose and Poppendick. When the first of these documents was submitted I objected to their admission because Mrugowsky would not be able to define his attitude towards them. The Tribunal then said I would be able to call him to the witness stand at a later date. I waited until all the material was presented and then did not ask to have him recalled to the witness stand. Instead I asked him to write an affidavit wherein he defines his attitude toward a number of these documents put in by the Prosecution after he left the witness stand and here he mentioned
MR. HARDY: I must object to the introduction of this affidavit. This affidavit deals with matters that Prosecution introduced in evidence during cross examination of Mrugowsky. I asked him specifically questions concerning these matters and he denied my questions and answered in the negative to my questions and in as much as I did not wish to introduce such documents at that time I didn't impeach his credibility as I did with the other documents, but in this particular instance I saved the documents to use on Rose's cross examination and one in Poppendick's cross examination and they are merely rebuttal documents refuting the testimony of Dr. Mrugowsky and I gave him ample opportunity to tell this Tribunal about any connection he had with the Robert Koch Institute and Rose and I gave him ample opportunity to do that on cross examination and he didn't do it and it completely refutes his testimony.
DR. FLEMMING: Mr. President, in this connection, let me say that Mrugowsky had no opportunity to reply to those documents submitted, in Poppendick's, Rose's and the other co-defendant's cross examinations that took place after his own examination. In Dr. Rose's examination, for instance, the documents Exhibits 491 and 492 were submitted, one is a letter by Rose to Mrugowsky and the other is a letter from Mrugowsky to Rose.
The Prosecution could just as well have offered those two documents when Mrugowsky himself was examined. Then he would have been able to reply to these documents and would have been able to explain how these letters originated and what the individual points contained therein mean. When Mr. Hardy maintains now that he already asked Mrugowsky on the witness stand about the contents of these letters, it is not correct. Mrugowsky, of course, was not in a position to define his attitude towards the subjects contained in the letter inasmuch as they were not submitted in evidence.
It is important to reply to the various subjects and quotations contained in the documents.
THE PRESIDENT: Do I understand, counsel, this is the last affidavit which you were submitting, the only other affidavit?
DR. FLEMMING: I have two more documents, Mr. President. One has been certified. It is a copy containing an extract from the IMT trial and deals with execution orders from Himmler and has the number 1751 PS. I have handed this document to the General Secretary for the purpose of certification. From the General Secretary it went to the language division and has not come back. And the last document is an affidavit by Kranz. Kranz was approved to me months ago as a witness but I only saw him a few days ago. Two days after his arrival I asked him to prepare the affidavit which has not yet come back from the translating division. These are the only two documents which I wish to submit.
MR. HARDY: This extract from the IMT need not be sent to the Translation Division.
THE PRESIDENT: I did not understand counsel to say that. I understood counsel to say it had been sent to the Secretary General.
MR. HARDY: And then to the translation division afterwards. That is completely unnecessary.
DR. FLEMMING: Only the affidavit by Kranz will have to be translated.
I could only get this affidavit at the end last week because the witness only appeared then.
THE PRESIDENT: Mrugowsky affidavit 124, the affidavit of the defendant Mrugowsky will be admitted in evidence, and the objection of Prosecution is overruled.
DR. FLEMMING: It is Mrugowsky 124, Your Honor. Now document 1751 PS, Regulations regarding executions, will become Mrugowsky Exhibit 113.
THE PRESIDENT: I don't know whether we have a copy of that or not, counsel.
DR. FLEMING: I don't think the Tribunal has a copy. I only received the certification for that document yesterday and I haven't yet received my copy. However, there must be the original document from the IMT trial.
MR. HARDY: If Dr. Fleming could give us the page number of the IMT record, I suppose that would be the first thing to logically check and refer us to whatever page of the IMT record it is on and what date and then it isn't necessary to submit a translation of it.
DR. FLEMING: I will be able to ascertain that during the recess.
The next document, Your Honor, will be the affidavit by Kranz, which will be Mrugowsky document No. 126, Exhibit 114.
THE PRESIDENT: Counsel, the translation of the document has not yet been received. I don't know when it will be ready. Have you the original affidavit in German?
DR. FLEMING: The original is here, yes. I handed the original to the Secretary General. It has been submitted for translation.
MR. HARDY: The document is clearly admissible, Your Honor. There is no question of that. It is a Prosecution document admitted before the IMT, which Dr. Fleming has submitted to the translation division, for translation, which is actually unnecessary.
THE PRESIDENT: I understood counsel is not speaking about another document, an affidavit which was prepared here recently.
MR. HARDY: Well, I haven't this other document yet, Your Honor to see what it is. I can't get a page number on it and I can't get a translation. I don't know what he is referring to and I want to get that information. It seems to me he could give me some information so that I could find it in the record.
THE PRESIDENT: Counsel stated he would give the page of the English translation, of the English documents at the morning recess. He didn't seem to have it now. Of course, a certified copy of the record before the IMT is clearly admissible. Counsel is now speaking, as I understand him, about another document, about an affidavit which he had recently procured.
DR. FLEMING: Yes, I received this on the 25th of June and I have handed it the same day to the translating division. I think I will have it very shortly and I will see to it myself.
MR. HARDY: May I see the original, please?
THE PRESIDENT: Please submit the original of this affidavit to the counsel for the Prosecution.
DR. FLEMING: Kranz was Mrugowsk's collaborator in the Hygiene Institute and talks about a number of matters in that connection.
MR. HARDY: I merely asked him when counsel submitted it to the translation division.
THE PRESIDENT: When did counsel submit that document for translation?
DR. FLEMING: I am just being told that the affidavit was taken down on the 25th of June and was sent down to the language division on the same day but only yesterday the mimeographed copy came back to us, so that it was only translated yesterday.
MR. HARDY: The translation division has no record of it coming down on this date. I won't object to the admissibility. It is in good form but again I wish an English translation of it at some time.
THE PRESIDENT: After the recess we will endeavor to find out when the English translation will be available. We will pass that matter for the present.
DR. FLEMING: Then there are excerpts from the record of the Pohl trial which are before the Tribunal. These will be in Mrugowsky's supplemental volume No. 3. I have these documents here, the certified copies. I think they were before the Tribunal yesterday and one such copy will be handed over as Mrugowsky Exhibit No. 115. All of these documents are excerpts from the records of the Pohl trial. Therefore, it is not necessary to hand them to the translating division so that they can be handed over to the Tribunal in the English language. I shall give it only one Exhibit number, even though these excerpts are all from different days.
THE PRESIDENT: All that is necessary on these documents is a certificate from the Secretary General of the IMT that they are correct copies of evidence taken in the Pohl trial.
DR. FLEMING: This certificate is ready, Mr. President.
THE PRESIDENT: I would assume that the certificate will be prepared very soon. It needs a comparison of the documents. That is all.
DR. FLEMING: The certificate is before you. I have already handed it to the Secretary General in writing.
THE PRESIDENT: Then it has been certified?
DR. FLEMING: Yes, Your Honor.
THE PRESIDENT: Will you hand the certification to the Tribunal?
(The Secretary does so.)
THE PRESIDENT: Mrugowsky Exhibit No. 115, certified copy of the records in the Pohl trial, is admitted in evidence.
DR. FLEMING: This, your Honor, concludes my submission of evidence on behalf of the defendant Mrugowsky.
MR. HARDY: Your Honor, I merely want to state that prosecution Rebuttal Document Books have been filed with the Defense Counsel Information Center and they may secure them there to be used later on today.
THE PRESIDENT: Defense counsel having heard the announcement of Prosecution that Prosecution Document Book of Rebuttal Documents has been filed with the Secretary General and is available to the counsel of defense. Those documentswill be offered later today.
The Tribunal would inquire whether translation of the Schroeder documents has boon received by Dr. Marx, counsel for Schroeder.
DR. MARX: Dr. Marx, counsel for the defendant Schroeder. Gentlemen of the Tribunal I have not yet received these documents in translation.
THE PRESIDENT: I understand that they are translated and will be available within a very few moments if they are not already prepared.
DR. MARX: Very well, your Honor.
THE PRESIDENT: Any other documents to be offered by defense counsel?
There being none the Tribunal will proceed. The Tribunal is advised that the Schroeder documents are now being assembled in the office of the Secretary General. The Tribunal will be in recess for a few moments until the documents are available.