1947-07-03, #3: Doctors' Trial (afternoon)

AFTERNOON SESSION (The hearing reconvened at 1330 hours, 3 July 1947)

THE MARSHAL: The Tribunal is again in session.

MR. HARDY: May it please the Tribunal, in connection with this next document I have to offer, I had the English — or the German translation — into the German —

THE PRESIDENT: There is some confusion on the ear phones. Wait until —. The confusion has subsided. Counsel may proceed.

MR. HARDY: If your Honors please, in connection with this next document, I have had it translated. The translation is before you of the German original document. I wish to introduce the photostatic copies I have here. The stencil was cut and, apparently, one page of the stencil has been removed from the Germany copies which is the page I wish to introduce so I have here three or four photostatic copies of the original exhibit in order. Defendant Hoven has one photostatic copy. He may have another if he wishes. Then I have two photostatic copies of the German which can be used by the court interpreters. However, I do not intend to read the document in its entirety. If they wish to use them they may if they so wish and return them to the Secretary General for the Tribunal's office copies.

This document now, your Honors, is NO-2148 which I offer as Prosecution Exhibit No. 570. I am only referring to that portion of the document which is dated 20 August 1942 which refers to reports of the deaths of political Russians. This document has an initial on it which is the initial "H" which prosecution contends to be the initial of the defendant Hoven. The document refers to the reports of deaths of political Russians and states that it may affect the saving of paper if the death reports on the political Russians were dropped, and I merely introduce this to show the position of the defendant Hoven in connection with the death reports issued from the camp and the fact he didn't consider it important enough to record these cases of death so that they might save paper.

THE PRESIDENT: What page of the documents?

MR. HARDY: You will find it on page 1 of the English, your Honors, at the top and it will be on page 2 of the photostat.

THE PRESIDENT: All right.

MR. HARDY: Your Honors, mimeographed copies of this are being made in German and will be distributed later.

That closes the presentation unless—

DR. GAWLIK: Mr. President, I have an objection to make to this document. This document does not constitute just one document. There is a number of documents which do not at all belong to one another. I ask to draw the attention of the Tribunal to page 1 and page 2. There you find the date of the year omitted.

MR. HARDY: You may note, your Honor, that I am only introducing the one letter that is a part of this entire document. Counsel may strike out the rest of the document if he wishes. I am only introducing the letter of 20 August 1942 concerning deaths of political Russians which bears Hoven's initials. The rest may be disregarded or he may use them as part of the document arguing it is his brief if he wishes. I am only introducing one portion of the document.

THE PRESIDENT: The date of that letter, you say, is August 1942? The date is omitted from the English copy.

MR. HARDY: The date of the letter on the German is 1942 your Honors.

THE PRESIDENT: Did I understand you to say that this letter bears somewhere the initial "H"?

MR. HARDY: Pardon, Sir?

THE PRESIDENT: Did I understand that this letter bears somewhere the initial "H"?

MR. HARDY: Yes, the original document — I will pass it up to your Honors if you wish to see it. That will be the second document on that page, the second page, your Honors, right in front of you now. That document there you are looking at now has the initial "H".

DR. GAWLIK: Mr. President —

THE PRESIDENT: No signature or initial is shown on the English transcript.

MR. HARDY: The English transcript says "signature illegible." Unless the translator was familiar with the case, they wouldn't know what initial "H" means, your Honor and I am calling that to your attention.

DR. GAWLIK: I also ask to draw the attention of the Tribunal to the fact that, according to proof, there was also a camp physician with the name of Hover, H-O-V-E-R.

MR. HARDY: That is in January 1943. The prosecution doesn't dispute any of those things. He may call that to the attention of the Tribunal in his brief. The document is not objectionable. It is a German document and boars the initial of Hoven and it is material in this case. The only objection he may have — he did not get it in 24 hours time and I will ask him to give us a reprieve for not giving the 24 hours notice.

THE PRESIDENT: The 24 hours' notice has been quite generally disregarded by the Tribunal for both the defense and prosecution in the last two or three days.

DR. GAWLIK: I am not objecting to that, Mr. President. Mr. President, if the prosecutor only submits a second page, I will submit the first page of this document as Hoven No. 21

MR. HRRDY: I submit, your Honors, that I have introduced the entire document but I only want to call your attention to page 1 of the document which has Hoven's initial. He may call your attention to the entire document.

THE PRESIDENT: The entire document is admitted in evidence, counsel, as Prosecution Exhibit No. 570. Counsel for defense may use the document in anyway he desires. It is all in evidence.

DR. GAWLIK: Mr. President, it was an error on my part but do let me draw the attention of the Tribunal to page 3 of the English text. There you find an enclosure "November 1944" which not at all belongs to it because in November 1944 the defendant Hoven was already in prison. How could there be and enclosure dated November 1944 to a letter dated 1942. The other enclosures cone from Department D III at Oranienburg. They do not belong to this document either. These are just a number of documents which have been attached to a letter of Hoven completely at random.

MR. HARDY: Any sections he feels not pertinent he may remove. Prosecution has no objection. We are merely relaying this letter with Hoven's initials.

THE PRESIDENT: Any portions of the document which are immaterial will be disregarded by the Tribunal.

THE PRESIDENT: Yesterday, counsel for defendant Sievers offered an affidavit of the defendant Sievers. The Tribunal sustained an objection on the part of the Prosecution to the admission of that affidavit. If counsel for defendant Sievers wishes to re-offer the document in evidence, the Tribunal will rescind its ruling and admit the affidavit in evidence and give it an exhibit number in accordance with the sequence of the affidavits on the part of the defendant Sievers.

DR. WEISGERBER (Counsel for defendant Sievers): Mr. President, at the moment I do not have the document before me. With the permission of the President, I shall get it immediately and offer it to the Tribunal.

THE PRESIDENT: The Tribunal admits the document in evidence. The exhibit number may be added to the document and the Prosecution will be given a copy with the exhibit number. The document may be filed with the Secretary General as admitted in evidence with Sievers' appropriate exhibit number.

DR. WEISGERBER: Thank you, Your Honor.

MR. HARDY: It is my understanding, Your Honor, the Tribunal will adjourn until Wednesday to hear the legal arguments on the conspiracy charge.

THE PRESIDENT: The session on Wednesday will be a combined session of all Tribunals. It is not a part of the trial of Tribunal No. 1. The Tribunal will convene in back of this court room on next Wednesday, July 9th to hear arguments on the legal grounds presented with demurrers to the charge of conspiracy as an act contained in the indictment. The session will convene Wednesday morning at 9:30 o'clock.

MR. HARDY: Will all the defendants be present at that time?

THE PRESIDENT: The defendants will not be present. It is merely a legal argument and the defendants in all the trials could not be present in court as it is not a matter of submitting evidence, but arguing a pure question of law. The presence of the defendants in the court is unnecessary, according to the ruling of the Tribunal.

MR. HARDY: Then the Tribunal will again convene on the 14th of July?

THE PRESIDENT: The Tribunal will then convene at 9:30 o'clock on the morning of July 14th to hear the arguments of counsel in accordance with the procedure to be followed with arguments for the prosecution and defense. When counsel for the defendants have determined how long they will take for their arguments, if they will take the matter up with me sometime next week and I will be glad to hear from them.

DR. SAUTER: Mr. President, before the Tribunal adjourns, I should like to make an application to you on behalf of defense counsel. Tomorrow we shall not be able to talk to our clients because it is a Holiday, Saturday the prison downstairs is closed for defense counsel and that also applies to Sunday. A number of the defense counsel have expressed the wish that before the conclusion in submitting of their closing briefs and pleas, they would once more like to discuss a number of essential points with their clients.

We would be grateful to you, Mr. President, if you could see to it that defense counsel could get into contact with the defendants of this trial — this trial only — either tomorrow morning or Saturday morning in order to enable us to conclude our closing briefs and final pleas and in order that there be no delay.

THE PRESIDENT: I shall take that matter up with the prison authorities and arrange for some time, either tomorrow or Saturday, any reasonable time that counsel desires, for consultation with their clients as requested.

DR. SAUTER: Perhaps on Saturday morning or Saturday afternoon. There will probably be some difficulties tomorrow.

THE PRESIDENT: If Dr. Sauter and another counsel will come to my office when the Tribunal is in recess, we shall discuss the matter and I shall take it up with the prison authorities with the request of the Tribunal that they grant the request to permit such consultations as desired.

DR. SAUTER: Thank you very much, Mr. President.

DR. PELCKMANN (Counsel for defendant Schaefer): I should one more like to remind you of an application, which I already put to you sometime ago. I have the courage, as well as the modesty, to declare the following quite openly. It is neither the inefficiency of the Prosecution nor the skill of the defense counsel, but the matter of a just matter, which with overwhelming logic demands that the defendant Schaefer be dismissed and he be released from prison.

I have fully understood the precaution taken by the Tribunal in not complying with my application in that regard in my opening statement. It was still before the submission of evidence on behalf of the defense. Even they very submission of evidence on the part of the Prosecution shows that the defendant cannot be guilty but there, was still then the possibility that in the submission of evidence on behalf of the defense for the other co-defendants, he could be incriminated. Perhaps even his examination or cross-examination could incriminate him, even that could happen. I also understand why the High Tribunal has postponed my renewed application at the end of Schaefer's examination until the end of the entire submission of evidence. Theoretically, there could still have appeared incriminating evidence against the defendant Schaefer. We witnessed this until the very end. The gypsies appeared with considerable surprises of various nature, but the longer the submission of evidence of the sea-water case, after Schaefer's examination lasted, the more it became obvious that Schaefer had nothing at all to do with it. His name was not even mentioned, but with one single exception. The expert, Professor Ivy, mentioned his name repeatedly, always lauding him and giving him credit. He emphasized particularly Schaefer's rejection of the Berka method, his rejection of the experiments with that method and his reasons for it had been the only proper thing to do.

We feel the only correct thing and even without closing briefs or without pleas, it has become clear already today, Schaefer is not guilty.

I even maintain that no reasonable suspicion of having committed a crime has ever existed. For many months he has been robbed of his personal liberty, which he thought he had regained when the American troops occupied Germany.

I ask the High Tribunal to set an example with this case of Schaefer by recognizing the unconditional liberty of every individual, every German, especially after these periods of war, which have confused these concepts and which confusion still lasts until today.

The regulations of procedure of the Military Tribunal gives you, Your Honors, the formal authorization to comply with my application. Even if you cannot give a final decision now, please decide upon the combination of his imprisonment, We are still seven weeks away from the handing down of the judgment. During this time Schaefer will still be robbed of his most valuable freedom. It is a demand made by Justice that you decide the following matter and render justice. There is no suspicion at this time, there is no danger that the defendant will try to escape, there is no danger that he will in any way camouflage his acts or destroy evidential material or that he will try to influence witnesses, therefore, Schaefer should be released from prison.

THE PRESIDENT: The Tribunal has heard the application of counsel for Defendant Schaefer, which is a motion for the dismissal of the case, at the conclusion of all the evidence, this motion as these previously made on behalf of the Defendant Schaefer, will be taken under advisement by the Tribunal.

Is there any further matter to be called to the attention of the Tribunal?

The Tribunal then declares the evidence closed and the Tribunal will be in recess until Monday morning, July 14th at 9:30 o'clock when the arguments of counsel for the prosecution and the defense will be heard.

THE MARSHAL: The Tribunal will be in recess until Monday morning July 14th at 9:30 o'clock.

(The Tribunal adjourned until 14 July, at 0930 hours.)