1947-07-17, #1: Doctors' Trial (early morning)
Dr. Flemming, counsel for defendant Joachim Mrugowsky, presents his closing argument
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 17 July, 0930, Justice Beals presiding.
THE MARSHAL: 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, you ascertain if the defendants are all present in court.
THE MARSHAL: May it please your Honor, all defendants are present in the court.
THE PRESIDENT: The Secretary-General will note for the record of presence of all the defendants in court.
The Tribunal will now hear arguments on behalf of the Defendant Mrugowsky.
DR. FLEMMING (Counsel for the Defendant Mrugowsky): Mr. President: The Prosecution said in its arguments: If Grawits were still alive he would sit here as one of the principal defendants on the defendants' bench. This is certainly true. But Grawitz passed sentence on himself. And what is the Prosecution doing? It indicts Mrugowsky instead of Grawitz. It does not consider in its arguments that Mrugowsky was not a private person but a Medical Officer in the Waffen-SS, so a soldier, and that Grawitz and Himmler were his military superiors. It speaks of conspiracy but it does not examine thereby to what extent a conspiracy may be conceived when military subordination plays its part. The Prosecution advanced in its summing — up documents and in its orals arguments only original allegations of the indictment. It did not discuss at all the evidence brought by the defendants for their discharge. It just pointed out a bit scornfully that this evidence is mostly composed of affidavits. But this is no fault of the defendants'. They would have preferred to be able to produce counter-proofs taken from their records.
But all the documents of the defendants and of other offices, where the evidence brought in by the Prosecution is taken from, are in the hands of the Prosecution. It selected parts of them which, separated in part from the content, seem to incriminate the defendants. But it made it impossible for the defendants to find the records which are in connection with the evidence produced by the Prosecution and would bring about a complete elucidation.
I would ask the Tribunal to consider in particular this difficult position of the defendants with regard to evidence. It compels to an increased extent to the old legal principle that the defendant is considered as not guilty before his guilt has not been proven and that the Court is to judge in favor of the defendant if the case is doubtful.
The charges against Mrugowsky are composed of three groups:
The typhus experiments and the execution carried through with aconitine where volunteers were not in question. The Tribunal will have to consider in these cases if the emergency of the State contended by Mrugowsky really existed and if it justifies the typhus experiments and the execution by aconitine. If answered in the affirmative, neither the typhus experiments nor the aconitine execution are criminal since there is no objection raised on the way they were carried through. If the question is denied it is to be considered if and to what extent Mrugowsky partook in them and if he is responsible under criminal law.
The second group are the acts of Ding which he committed arbitrarily, e.g. his participation in a killing by phenol and the special experiment on 6 persons.
The third group are the protective vaccinations for which volunteers were available according to the evidence produced by the Prosecution.
The defendant Mrugowsky is indicted first of all for his alleged participation in the experiments with typhus (spot fever) at Buchenwald and in other medical experiments. When submitting evidence the Prosecution treated these experiments as criminal and as experiments carried through by physicians. Also when interrogating the experts Professor Leibbrand and Professor Ivy the Prosecution treated these medical experiments as experiments made by physicians and asked the experts if these experiments were to be considered as admissible from the point of view of medical ethics.
I am convinced that the experiments to which the Prosecution refers as to the base of its indictment are not at all experiments which originated from the initiative of the executing physicians. They really are research work necessitated by an uncommonly urgent emergency of the State and ordered by the highest governmental authorities competent for it.
Also Professor Ivy admitted that there is a fundamental difference between the physician as a therapeutist and the physician as a scientific research worker. When asked by Dr. Tipp:
So you admit that for the physician as a therapeutist, the physician who cures, other rules and therefore other paragraphs of the oath of Hippocrates are in force?
He gave the answer:
Yes, I do so without any doubt.
Consequently experiments on human beings carried through for cogent reasons of a public character and ordered by the competent authorities of the State cannot simply be considered as criminal only because the experimental persons chosen by the State for the research work were not volunteers.
The Prosecution ought to have shown in addition with regard to the individual experiments for which reasons they were criminal apart from the fact that the experimental persons were not volunteers.
The largest space in the indictment against Mrugowsky is taken up by the typhus experiments at Buchenwald.
The Prosecution does not contend that Mrugowsky partook in them personally, but I further believe to have demonstrated in my deductions in writing that he neither suggested nor ordered nor controlled these experiments, that he did not further them or even approved of them.
Nevertheless, for precaution's sake I also must prove that the experiments in question were not illegal and that under no aspect they can be considered as criminals once they were caused by an urgent emergency of the State.
This proof can be produced in a particularly impressive way just in the case of the typhus experiments.
In the Flick trial the Prosecution produced Document NI-5222 which I offered to the Tribunal.
In this Document which comes from the Labor Office Westphalia and is dated Feb. 3, 1942 it is said that according to a communication made by the Military Commands a short time ago the number of the prisoners of war who died of typhus still came up to 15,000 a day.
I think I need not emphasize any more that it is to be considered as a most urgent emergency of the State if of one sole epidemic disease, 15,000 people a day I repeat, are dying in the camps for Russian prisoners alone.
On the other hand the Prosecution has stated that from the beginning of 1942 till the beginning of 1945, 142 persons in total died in consequence of the typhus experiments at Buchenwald. I intentionally pace these two figures in the beginning of my arguments. They show that during the whole time of the experiments in Buchenwald, the number of the victims who died amounted to one percent of the toll taken every day by typhus in the Russian prisoner camps alone in winter '41 and '42. In addition to these victims in the Russian prisoner camps the enormous number of people who died of typhus amongst the civil population of the occupied Eastern territories and the German Armed Forces is to be considered.
It is clear that under conditions drastic measures had to be taken. When judging the Typhus experiments carried out in the concentration camp Buchenwald one must not forget that Germany was engaged in war at this time.
Millions of soldiers had to give up their lives because they were called to the front by the State. The State employed the civil population for work according to State requirements. In doing so it made no distinction between men and women. The State ordered occupation in chemical factories which was detrimental to the health. It ordered work at the construction of new projectiles connected with considerable danger for life. When unexploded now enemy shells were found at the front or unexploded new bombs after an air raid at home it ordered gunnery officers to dismount such new shell or bomb with the aid of assistants to get acquainted with their construction. This implied great danger for life. Then the fillings of the new shells and bombs had to be examined as to it composition by an analytical chemist. In certain cases this work was detrimental to the health of the chemists and their assistants and always rather dangerous.
In the same way the State ordered the medical men to make experiments with new weapons against dangerous diseases. These weapons were the vaccines. That during these experiments not only the experimental persons but also the medical men were exposed to great danger, is shown by the fact that Dr. Ding infected himself unintentionally in the beginning of his typhus experiments, and fell seriously ill with typhus.
With regard to such medical experiments one will have to agree on principle with the opinion of Prof. Ivy and Prof Leibbard that they are to be carried through only on volunteers. But even Prof. Ivy admitted that there is as much difference between cases in which a scientific research worker starts such experiments on his own initiative, and the cases where he is granted authority to do so by the competent organs of the State. The question whether the organ of the State is responsible was answered by him in the affirmative but he added that this has nothing to do with the moral responsibility of the experimenter towards the experimental subject.
This moral responsibility of experimenter towards the experimental subject relates when the experiment is ordered by the State to the way the experiment is carried through but not to the experiment itself.
That the experiments at Buchenwald were carried out correctly was not contested by the Prosecution. By way of precaution I offered evidence for the correct execution in my closing brief.
On a question asked by Dr. Sauter, Prof. Ivy observed that he did not think the State could take the responsibility to order as scientist to kill a man to get knowledge.
The case with the typhus experiments is different. No order was given to kill a man to get knowledge. But the typhus experiments were dangerous experiments. Out of 724 experimental persons 154 died. But these 154 dead of the typhus experiments have to be confronted with the 15,000 who died of typhus every day in the camps for Soviet prisoners of war, and the innumerable dead by typhus amongst the civil population of the occupied Eastern territories and the German troops. These enormous numbers of dead led to the absolute necessity to have effective vaccines against typhus in sufficient quantity. The newly developed vaccines had been tested in the animal experiment as to their compatibility.
I explained this in detail in writing.
The Tribunal will have to decide whether, in consideration of the enormous extent of epidemic typhus, in consideration of the 15,000 men dying of it every day in the camps for Russian prisoners of war alone the order given by the Government authorities to test the typhus vaccines was justified or not. If the answer is affirmative the typhus experiments at Buchenwald were not criminal, since the Prosecution did not contest that they were carried out according to the rules of the medical science. In this case every responsibility of Mrugowsky for these experiments in excluded. If, on the other hand, the Tribunal denied the question and declared the typhus experiments at Buchenwald as criminal then it would have to be considered if Mrugowsky is responsible from them in any way.
In my written statement I explained in detail that Block 46 at Buchenwald, where the experiments were carried out did not depend on Mrugowsky's orders, but that Dr. Ding worked under the immediate orders of Grawitz. Out of the extensive evidence I offered to prove this fact I only want to tress the letter addressed by Grawitz to Mrugowsky in which Grawitz declares explicitly on Aug. 24, 1944, that he consented that the series of experiments he mentioned in the letter be carried through at Buchenwald in Block 46 and the letter addressed by Mrugowsky to Grawitz on Jan. 29, 1945 in which he suggests the testing of a jaundice virus and in which he writes:
I pray to obtain with the Riechsfuehrer-SS the permission to carry through the infection experiments in the typhus experimental station of the concentration camp Buchenwald.
These two letters demonstrate that still in the autumn 1944 and early in 1945 Mrugowsky could have carried through a series of experiments in compound 46 only with a special permission. This refutes the assumption of the Prosecution that compound 46 was placed under Mrugowsky's orders.
But above all I want to stress again the affidavit given by Dr. Morgen on May 23, 1947 in which he stated that when he investigated the occurrences in Block 46 at Buchenwald. Dr. Ding showed him an attestation signed by Grawitz in which Ding was commissioned explicitly to carry out the experiments.
Dr. Morgen has further stated that he had to report to Grawitz personally about the result of his investigations as an examining Magistrate at Buchenwald. There also it resulted according to the affidavit given by Dr. Morgen that Grawitz ordered the experiments. He then called Dr. Ding "his man", and said he would regret it if the investigation had brought a charge against Dr. Ding, since he employed him for the experiments.
Morgen emphasized that the name of Mrugowsky was not mentioned in the course of his conversations with Ding and Grawitz. This clearly shows, I think, that Mrugowsky had nothing to do with Block 46 at Buchenwald. For further evidence that Ding still depended on Mrugowsky's orders in Block 46, the Prosecution referred to the sketches designed by Mrugowsky. NO 416 and 417, which were offered with Doc. Book I of the Prosecution. It results from these pictures that the action for typhus and virus research was only Block 50. Block 46 was called as formerly "Experimental Station of the concentration amp Buchenwald". This results from the letter just quoted. Block 46 was only attached to the section for typhus and virus research without establishing thereby and relation of subordination to Mrugowsky. This is shown in detail in my closing brief.
From the two sketches designed by Mrugowsky, which show that the section for typhus and virus research was under his control from its establishment to the end of the war, nothing can be deduced therefore from the assumption that he was Ding's superior in Block 46.
By this fact and the further evidence brought in my closing brief it is demonstrated that Block 46 at Buchenwald was not placed under the order of Mrugowsky. There is therefore no responsibility of Mrugowsky for the typhus experiments.
In this connection I want to emphasize that Mrugowsky never denied that he knew the typhus experiments at Buchenwald were ordered by Grawitz and carried out by Dr. Ding. He never denied that he saw for instance, the report about the series I of the experiments, which he rewrote in his letter of May 5, '42 and that he saw Ding's essay about acridine which Ding sent to Grawitz for consent to publication on 18 months after the experiments were completed and which Grawitz then gave to Mrugowsky to return it to Ding. But from this knowledge no responsibility of Mrugowsky for the typhus experiments can be deduced.
The experiments were ordered by Himmler and Grawitz as his highest military superiors. As a Medical Officer of the Waffen-SS Mrugowsky had no possibility to oppose these experiments ordered by his superiors in any way. When Grawitz first suggested the experiments he contradicted him at once, and induced him to ask for a decision of Himmler as the highest superior. Himmler decided against Mrugowsky. Under these conditions Mrugowsky could do no more. He obtained however by his opposition that he was not commissioned with the experiments but that Ding got the order for execution.
Nor has the Prosecution brought any evidence to show that Mrugowsky intervened later in any form in the typhus experiments at Buchenwald, that he furthered them or participated in them in any way. On account of the fact that Mrugowsky knew about the typhus experiments no charge can be made on him under criminal law, because neither in law nor in fact he had any possibility to prevent the experiments or to enforce later their cessation.
The Prosecution further based its charge against Mrugowsky on the depositions of several witnesses that he had been Ding's chief in Block 46, also in so far the experiments carried out by Ding in Block 46 were concerned. I have contested this with all energy. All the statements produced by the Prosecution in this respect have their origin in information given by Ding. None of these statements comes from somebody who worked in Block 46 himself. It is significant that the Prosecution has not been able to offer a single order given by Mrugowsky to Ding for the carrying out of typhus experiments although its witness Balachowsky stated that Kogon had managed to collect extensive evidence which he had handed, almost complete to the American Army. If there had been any written orders from Mrugowsky to Ding, the later would certainly not have destroyed them for the sake of his protection, and Kogon would have given them to the American Army with his other documents.
It is true that the witness Kogon who deserves no credit, as I shall show, pretended that Mrugowsky gave to Ding mostly only oral orders. But he further deposed that from the year 1943 onwards Ding was no more satisfied with oral orders from Mrugowsky, but asked for such to be given in writing. In spite of this not a single written order from Mrugowsky to Ding concerning the execution of a series of typhus experiments was produced.
The only witness who might be able to tell anything about the order given to Ding in respect of the typhus experiments by his own knowledge is the witness Dr. Morgen. I just remarked that Morgen saw the order given by Grawitz to Ding for the execution of the typhus experiments and that Grawitz personally told Dr. Morgen that Ding was his man at Buchenwald and said he employed him there.
The error of the witnesses who stated that Mrugowsky had been Ding's chief, results from the fact that Ding was dependent on Mrugowsky in respect of the production of vaccine in Block 50 and also concerning his activity as a Hygienist. I showed in my closing brief that from 1942 to 1945 Ding was working with the typhus vaccine experiments only for about 2½ months, if one adds all the hours he worked from them. All the rest of his activity during three years approximately was devoted to the vaccine production and the work of a hygienist, so for the activity where he was Mrugowsky's subordinate. It is comprehensible that during the approximately 33 months he worked for Mrugowsky he got many more orders from him than from Grawitz for the execution of the thirteen typhus vaccine experiments. It therefore is comprehensible that the main part of his correspondence under these circumstances was carried on with Mrugowsky.
In consequence of the contention of the Prosecution which hardly spoke of anything but of the typhus — vaccine experiments, and produced documents only in respect of these the impression had to originate that the typhus — vaccine experiments were Ding's main activity at Buchenwald.
That is not so. For his main activity at Buchenwald, Ding was Mrugowsky's subordinate. Therefore it does not result from the fact that his correspondence went on mainly with Mrugowsky and that he called Mrugowsky his superior that also in respect of the typhus — vaccine experiments a connection between Mrugowsky and Ding was established not that Mrugowsky participated in these experiments in any way nor that he was responsible for them. The Prosecution did not deny that such double subordination as it existed between Ding on one hand and Granwitz and Mrugowsky on the other is possible in a military organization and happened frequently. I can refer also in this respect to the statement in my closing brief.
The witness Kogon and Ding's diary are the chief means of evidence advanced by the Prosecution against Mrugowsky. This is why in my closing brief I explained in detail that neither Kogon's statement nor the Ding diary furnish any substantial proof. As to the statement of Kogon I want to emphasize once more the principal points:
Kogon described in the witness stand the dramatic circumstances under which he pretends to have saved the so-called diary of Ding. I needn't point out that the particular occurrences which happened when he saved the diary as he pretends he did would have I pressed him so that he did not forget them if his statement be true. So he couldn't possibly relate this event in a different way when he related it several times. In fact he gave in the physicians' and the Pohl trials two reports about the way he alleges to have saved the diary, which differ so fundamentally that this is only comprehensible if his contention that he saved the diary is untrue and the descriptions he gives of this event are a pure invention.
Kogon stated in the physicians' trial that Ding assorted the secret documents to be burned in Block 46. Whilst Ding and Dietzsch went into the adjoining room for a moment he had thrown the diary and a heap of papers into a box to save them from destruction.
Two days later he had told Ding that he had saved the diary and a heap of other papers from being destroyed and had got the permission to fetch them from Block 46 where he couldn't have got them otherwise. He had fetched them and kept them since. This description is quite plausible and it would be hard to refute it if there was not Kogon's own statement in the Pohl trial
In the Pohl trial the same Kogon has said about three months later: he had been standing with Ding and Dietzsch at the same table when the secret documents were sorted for destruction. Suddenly Ding had pushed the diary and other papers towards him. He had taken them and carried them to Block 50 together with Ding. Ding had not known at this time that Kogon had the diary and the other documents with him but he had told Ding this on the same day.
A more striking contradiction than between these two statements about the saving of the diary is hardly possible.
If Kogon had really saved the diary really in the way he described in the physicians' trial then the moment when he threw the diary into the box and his reflexions during the two days before he told Ding that the diary had not been burned would have remained in his memory unforgettably. The way from Block 46 to Block 50 to fetch the diary and the way back with the diary would have been remembered by him so well that a different description would be impossible. Also if the preservation of the diary had occurred in the way described by Kogon in the Pohl trial it certainly would have been recollected by him so clearly that a different description would be impossible too. So the two descriptions about the preservation of the diary, differing so fundamentally from each other, can be explained but in two ways. Either Kogon's statement is untrue and he didn't save the diary at all. In this case, if he told the Tribunal a falsehood about such an important point then no credit is to be given to his whole statement. Or Kogon must have such a bad memory that his contradictions in his testimony can be explained by that. In this case too his entire testimony would bring no probative value on account of his bad memory.
An argument against the correctness of Kogon's statement about the saving of the diary is also the statement made by Dietzsch and produced by me, that Ding tore up the diary in his presence and threw it into the lit stove where it was burned, when the secret documents were destroyed. Dietzsch declared explicitly that Ding made sure that all the documents were burned entirely after the destruction of the papers had been finished.
I should say that by Dietzsch's statement combined with the contradiction between the two statements of Kogon's, it is proved that what Kogon said about the saving of the diary is a falsehood.
In my closing brief I in detail dealt with still further points where the statements made by Kogon in the physicians' trial on one hand and in the Pohl trial on the other are in a similarly marked contradiction as in respect of the preservation of the diary.
It will not be necessary to repeat here all these arguments. I should like to refer to them.
The second main evidence of the Prosecution against Mrugowsky is the diary which is said to have been saved.
The fantastic description of the saving of the diary given by Kogon in two different relations deserves no credit. Therefore, Dietzsch is to be believed who said that Ding burned the original diary of Block 46 in his presence. This statement is supported by the opinion given by the handwriting experts, Zettner and Nastvogel treated in detail in my closing letters.
In the meantime the Prosecution declared whilst discussing the Beiglboeck documents of evidence that it had the possibility to have the handwriting examined as to their age in an institute at Frankfurt and also to have documents investigated into in every way. The Prosecution thereupon stressed explicitly that I also had the Ding diary examined by experts.
The Ding diary is of importance for the prosecution for the charges against several defendants. So the Prosecution ought to have found it more important to have the genuineness of the Ding diary examined than the Beiglboeck documents. Ding signed in ink. So the institutes at Frankfurt would have been able to ascertain without any difficulty whether the signature on the first page is several years older than the signature on the last page. Further, the institute could have ascertained without any difficulty whether the whole diary from the end of the year 1941 till spring 1945 was written on exactly the same paper or not. But the Prosecution did not hand the diary to this institute for examination. This fact shows that it was convinced itself that such examination would not have given any result which was favorable for the Prosecution.
In my opinion this is a particularly strong argument for the assumption that the diary was really composed and written down altogether after the events. For the rest I also want to refer to my closing brief.
The strength of the evidence of this diary is due to the fact that the man who wrote it cannot yet foresee the future development when making his entries. Therefore it is to be presumed that the entries render the events objectively and completely. If a sole document which is composed later is made up externally as a diary the the intention is to be deduced therefrom to influence the reader in a certain direction, and also to deceive him for this purpose. This is the reason why any record written later and made up in the form of a diary is of no probative value.
How the Prosecution tried to show that the Ding diary is of probative value by comparing its contents with a number of documents which have the same contents as the entries in the diary. In my closing brief I dealt with these documents in detail and proved that these all came from Ding without exception. All documents which the Prosecution compared with the diary, Ding had at hand still when he made the belated compilation after the original diary had been burned. They are vouchers he used for the entries he made in the diary we have now. Therefore it cannot be deduced from the conformity of these documents and the diary that the latter is good evidence.
One of the documents the Prosecution compared with the diary is the so-called work report of Ding. This work report is really only a draft which was not been signed nor was sent to Mrugowsky. I explained this in detail in my closing brief and offered evidence for it.
According to Kogon's statement this draft of the report was written in Block 50 by the second compound clerk. Such draft has no probative value unless it was signed by the person who is to sign it.
In this instance this would have been Ding.
Mr. Hardy admitted that this work report was only prepared for signature by Ding. He thereby admitted that it was not signed. Therefore the draft has no probative value.
If these three main elements of evidence fail, Kogon's statement, the work report and the Ding diary, the chief part of the evidence brought forward against Mrugowsky fails.
The Prosecution contended in its summing-up that the experimental subjects volunteered neither for the typhus experiments nor for the other experiments at Buchenwald. In respect of the other experiments this is not correct. I shall deal with this later.
In respect of the typhus experiments it may be correct that most of the experimental subjects did not volunteer for them.
On the other hand it results from the closing brief of the Prosecution that it is not alleged for the period till the fall 1943 that Mrugowsky had anything to do with the selection of the prisoners for the experiments. This is correct and was further put in evidence in my closing brief. In autumn 1943 according to the contentions of the Prosecution which refers in this respect to Kogon's deposition again, Ding is said to have addressed the request to Mrugowsky that the experimental subjects should be chosen by the Reichsfuehrer-SS. This statement of Kogon's is also untrue. I have pointed this out in detail in my written statement.
In this connection the Prosecution mentions Himmler's order of Febr. 27, 1944 relating to the selection of the prisoners by the Reichspolizeiamt [Reich Polife Office]. But this order of Himmler was not given pursuant to a suggestion made by Mrugowsky. It really is due to the attempts of Dr. Morgen. He explained this accurately in his affidavit of May 23, 1947, which I offered in evidence.
So it is an established fact that until autumn 1943 Mrugowsky had nothing to do with the selection of the prisoners, and that from this time on the prisoners for the typhus experiments were chosen by the Reichskriminalpolizeiamt [Reich Criminal Police Office] pursuant Himmler's order suggested by Dr. Morgen, so that after this time Mrugowsky had also nothing to do with the choice of the prisoners.
The Prosecution calls the typhus experiments criminal, in particular because control persons were used and above all because of the alleged "passage persons".
As to the control persons I explained in my closing brief at length that such vaccine experiments are impossible without the use of control subjects and lead to no practical result without them.
If one takes the Ding diary for information it appears that in a number of test series the cultural virus used was no more pathogen out for human beings. If no control persons had been infected the fact that the experimental persons were not taken ill would have been explained as a consequence of the protection obtained by the vaccination. This would have led to entirely wrong deductions, and to the use of inferior vaccines in practice. If one considers the typhus experiments as admissible the use of control subjects is therefore indispensable. I explained this in detail in my closing brief.
On the other hand the use of passage persons who were infected only in order to have living virus always at hand could not be justified. I have demonstrated in my writing that such passage persons were never used. Until April 1943 there was no reason to use them. For until April 1943 it is said explicitly in the Ding diary at each series of experiments that the infection was carried through by means of cultural virus bred in the yolk sacs of hens' eggs which Ding got from the Robert Koch Institute in Berlin. After April 11, 1943 Ding infected with fresh blood taken from persons who were ill with typhus. But also during this period the use of passage persons was superfluous because Ding always had persons at his disposal who had contracted typhus spontaneously from whom he could take the fresh infected blood.
If the Prosecution had wanted to bring evidence that passage persons were used in Block 46 it could have done so best by Ding and Dietzsch. It produced statements from both in which the question of the passage persons is not mentioned. The Prosecution knew by the examination of Mrugowsky in the witness stand that he denied the use of passage persons. When I said at the end of the production of my evidence that I did not call Dietzsch to the witness stand but only offered an affidavit from him, Mr. Hardy asked the Tribunal for the permission to interrogate Dietzsch on certain facts.
However, he never produced a record about such an interrogation. This is further evidence that Dietzsch did not confirm the use of passage persons. All the witnesses who made statements about the use of passage persons did not work in Block 46. They therefore know nothing from their own observation, but only through third persons. Dr. Morgen investigating as an examining magistrate in Block 46 in Buchenwald, made no ascertainment about passage persons. So there is no conclusive evidence of any kind that passage persons were used in Block 46. On the contrary I proved in my closing brief that passage persons were really not used.
If the Tribunal would assume that the use of passage persons was proved in spite of that there would be no fault of Mrugowsky's in the use of passage persons, because I demonstrated that Ding was not his subordinate in respect of his activity in Block 46 and because there is no evidence whatever that he even as much as knew about the use of passage persons.
In my written statements I then dealt in detail with the experiments with acridine preparations in the frame of the typhus experiments. I proved that Ding got these preparations not from Mrugowsky but from the I.G. Farbenindustrie A.G. There is no evidence whatever that Mrugowsky had any knowledge of these experiments carried out by Ding.
Ding's report of the acridine experiments submitted for publication was handed to Mrugowsky by Grawitz only about eighteen months after the termination of the experiments.
Therefore for the experiments with acridine preparations which caused a particularly high number of dead no charge can be made against Mrugowsky under criminal law.
In respect of the poison experiments I proved in my written statement that Ding's assertion he had received an order from Mrugowsky to be present at an euthanasia by phenol is not correct. Prof. Killian who according to Ding's statement was present when the order was given said that this statement of Ding's is not correct. I showed that the examination of the question whether serums containing phenol have a noxious effect can be carried through by the use of serums with and without phenol for comparison and that a series of experiments with serums containing phenol was never carried through.
The experiments with pervitine were carried out on the initiative of Dr. Morgen and Dr. Wehne, according to the Ding diary. I proved that by these experiments no harm was done to the health of the experimental subjects. The experiments were made with pervitine which is to be had in any chemist's shop without a prescription, and consequently is no poison. In the experiments it was used together with a soporific because the authority who investigated into the death of Hauptscharfuehrer [Staff Sergeant] Koehler wanted to find out whether by this treatment the effect was increased in one or the other sense.
The only effect was that the experimental subjects fell to a disturbed sleep for up to twenty hours. Also for this Pervitine experiment which was not ordered by Mrugowsky, in which he did not participate in any way and in respect of which the Prosecution did not even contend that he knew of any responsibility under criminal law which may be deduced against him.
About the special experiment on six persons mentioned in Ding's Diary it is again the witness Kogon alone who stated particulars. In my closing brief I pointed out that also in this case the depositions of Kogon about the origin of this experiment in the Pohl trial and the physicians' trial, are in contradiction (p. 191). Thus his evidence has no probative value. Moreover what Kogon said about this experiment is only based on Ding's relation except the sealing and the burning of the prescription. In respect of this special experiment any evidence is lacking with which poison and in which manner the special experiment was carried through and what was to be ascertained by the experiment. After the collapse Ding told the defendant Sievers he had filled towards the end of 1944 eighty bottles with prussic acid but he unfortunately had taken none of them with him to make an end with himself.
If Ding carried through his "special experiments" with these prussic acid capsules cannot be cleared because Ding left no report about the way the special experiment went on.
In the Ding Diary it is said that the experiment was made by order of Mrugowsky and of the Reichskriminalpolizeiamt. As the diary has no probative value the truth of this contention cannot be proven by this document alone. Other evidence that Ding poisoned six prisoners by order of Mrugowsky fails. So there is no conclusive evidence that Mrugowsky ordered this experiment or that he even knew about it.
The Prosecution further indicted Mrugowsky for the sake of an execution carried through at Sachsenhausen where three highwayman sentenced to death were executed with projectiles poisoned with aconitine, I have proven that Mrugowsky attended this execution only as execution physician.
I further demonstrated that the execution was carried through because in an attempt on the life of a superior civil servant in the General government revolver ammunition had been used where the bullets had a hole in them and were poisoned with aconitine. By this use of poisoned Russian bullets and the book by Henderson in which the preparation for the use of poisoned projectiles in the first world war was described the concern had been increased that shortly poisoned bullets would also be used at the front. I proved that the use of poisoned ammunition at the execution served the purpose to find out if pure aconitine or blend had been used and how much be available in case of need to use counter-poisons.
I have brought evidence that all executions in concentration camps were ordered by the Reichskriminalpolizeiamt and that the presence of an execution physician at such executions was prescribed. The execution at Sachsenhausen had been ordered by the Reichskriminalpolizeiamt. No charge can be deduced against Mrugowsky from his attendance as an execution physician under criminal law. I have explained this in detail in my closing brief.
In respect of bacteriological warfare I want to be very brief. The Prosecution only produced a letter from Grawitz to Himmler with which Grawitz sent to Himmler memorandum about the defense against bacteriologic warfare. There is no evidence at all that Mrugowsky busied himself in any way with the carrying of bacteriological warfare actively. From the dealing with measures of defense against bacteriologic warfare no responsibility under criminal law can be deduced.
The Prosecution assumes that Mrugowsky was Ding's superior for his activity in block 46. It therefore tries to make him responsible for all the experiments carried through in block 46 at Buchenwald besides the typhus experiments.
The indictment for these experiments fails like the indictment for the typhus experiments if Mrugowsky was not Ding's superior for his activity in 46. By way of precaution I showed in my closing brief that he had nothing to do with the otrhomin experiment. (p. 214) The drhomin experiment was brought about by Conti, the Secretary of State in the Ministry of the Interior, via Grawitz. Ding sent the records direct to Christiansen, the technical expert of Conti. There is not the slightest hint that Mrugowsky know about these experiments. (Closing letters p. 214).
In 46 experiments with incendiary bombs were further made by Ding. I demonstrated in my closing letters that these experiments with bombs were initiated by the superior SS — and Police Leader von Woyrsch through Grawitz. There is no evidence of any description for a participation of Mrugowsky.
In respect of all experiments carried through in block 46 therefore all evidence fails that Mrugowsky ordered these experiments, that he participated in them in any form or that he had been in a position to prevent these experiments ordered by his superiors Himmler and Grawitz or influence them in any way. No penal guilt against Mrugowsky has been proved. Mrugowsky admitted that he initiated the vaccinations against smallpox, typhoid fever, paratyphus A and B and diphtheria as well as the high — immunization experiment with Fraenkel vaccines, the dysentery protective vaccination and the testing of yellow fever vaccines. At none of these protective vaccinations artificial infection was carried through. That artificial vaccination was adopted would have to be proven by time Prosecution. It brought no evidence for this contention. For all these experiments volunteers were available as it is shown in my closing brief.
All these vaccines were tested in numerous experiments on animals and on human beings.
The Prosecution has not contended that the medical treatment of all vaccinated persons was blameless as far as vaccine reactions set in. So at these experiments all requirements were met which the experts of the Prosecution, Prof. Ivy and Prof. Leibbrand enumerated for experiments on human beings so that these experiments cannot be called criminal under my aspect.
When the submission of my Document Book II was discussed Mr. Hardy admitted explicitly that also the Prosecution considers the carrying through of medical experiments on volunteers as admissible.
So the charge that the above mentioned protective vaccinations were criminal must be dropped.
In addition I have shown in my writings by producing affidavit of the most eminent physicians that these protective vaccinations are no unlawful experiments and must be called absolutely necessary from a medical point of view, in particular if one considers the conditions of life in the concentration camps.
As to the use of blood serum preserves I have shown in my closing letters that they were adopted in tens of thousands cases amongst the troops with the greatest success and that they never did any harm to health. At Buchenwald the blood serum preserve was used also exclusively for therapeutic purposes. Under no aspect this use can be called an "experiment". For there was no experiment to be made with this approved therapeutic.
As to the drawing of blood from convalescents of typhus for the production of convalescent serum for the concentration camps and of blood for the production of blood preserves I have commented in detail in my closing letters. (p. 239 and following.)
The taking of blood from convalescents from typhus is under no condition a measure which can injure the patient. With typhus the blood circulation is always impaired and the relief of the circulation by taking some blood which corresponds to a blood letting, is to be considered as a therapeutic measure.
Under no condition the taking of blood in such small quantities as it was done at Buchenwald. I have explained this in my closing brief.
Nor can the drawing of the small quantities of blood required for the production of blood serum preserves be harmful under any conditions. This also is shown in detail in my written statement. Moreover the blood donors were volunteers who offered themselves because they got additional food. So also these bleedings which were carried through under Mrugowsky's responsibility were no offense of his under criminal law.
Finally the Prosecution has charged reproached to Mrugowsky with having ordered the "Zyclon B" for the gas chambers at Auschwitz. I have shown in my closing brief, that there are mistakes in the affidavit of Hoess whom I cannot ask any more for cross-examination because he is dead and that Mrugowsky never had anything to do with the ordering of gas for the Auschwitz gas chambers. This was also confirmed by Dr. Morgan who acted at Auschwitz also as an examining magistrate.
As to item IV of the indictment under which Mrugowsky is charged to have belonged to the SS as a criminal organization I have shown that he belonged to the Waffen-SS of which General Taylor himself said in his introductory speech that its members were trained and equipped as regular troops and fought in regular military units at the front. The IMT ruled that a man cannot be punished for having belonged to the SS if he was incorporated in it after Sept. 1, 1939 in such a way that he had no choice.
Mrugowsky was an active Medical Officer in the Waffen-SS. As such he had no choice after the war had broken out whether he wanted to remain in the Waffen-SS or withdraw from it. Therefore the decision of the IMT about its criminal character is not applicable to Mrugowsky. In addition I have shown in my closing letters that he practiced no SS politics in any way nor made propaganda for the Party or worked for it (p. 247 ff).
I therefore am convinced that he cannot be punished either for his having belonged to the SS.
To sum up I want to say that all evidence brought by the Prosecution against Mrugowsky does not hold up under examination, for the reason of the particularly great quantity of facts to be discussed in respect of the Ding diary it was not possible for me to discuss each item in detail within the time available to me. But I also think this is not necessary because the Tribunal has my arguments at hand in writing, in which I commented at length to all charges.
I am convinced that the defendant Mrugowsky is guilty of none of the crimes he is indicted of.
I therefore petition to acquit the defendant Mrugowsky in respect of all the crimes he is indicted of.