1947-07-17, #2: Doctors' Trial (mid morning)
Dr. Boehm, counsel for the defendant Helmut Poppendick, begins his closing argument
THE PRESIDENT: The Tribunal will now hear from counsel for the defendant, Poppendick:
BY DR. BOEHM (For the defendant Poppendick):
Mr. President, Your Honors!
After the proceedings have lasted longer than 7 months, Case I against the SS doctors and German scientists is coming to an end. Many a sad chapter of human errings has been disclosed here. There will hardly be excuses for many things that happened. However, will the prosecution's evidence be sufficient to accuse every one of the defendants of having been connected with crimes that were committed and thus be able to construct an individual responsibility? Is Moliere actually right with regard to this trial and these defendants here when in his well known work "The imaginary patient" he allows the doctor's cap to be presented to the young doctor of medicine and thereby in jest lets the doctor's omnipotence be recorded with the cynical words:
I present you with the venerable and learned cap and with such concede to you the technical skill and power to heal with impunity all over the world, to purge, to dissect, to puncture, to cut, to bore and to kill?
Should the doctors on trial here really have abused the professional position of a doctor in a shameful way that they cannot be adjudged any longer with this honorary title of a helper of mankind, but that rather together with the other defendants, as it has happened, already before the trial had started, they may be referred to as "these 23 oppressors" in a German newspaper?
No doubt the prosecution in their tendency towards generalization tried to attribute the answer to this question to us.
The indictment would like to see a distinction drawn between:
The non-German doctor who in the past decades has held medical ethics at a high level;
The German doctor who, in the years from 1933 to 1945, stood under the complete sway of biologistic thinking, as Professor Leibbrant put it;
Those indicted here, the immanence of humane feelings in whom has been a prior denied them and who are alleged to have banded together in order to commit crimes against humanity, without purpose, without meaning, and without success.
This crude picture of the German medical profession after 1933 was strengthened by Professor Leibbrandt's testimony who, perhaps unconsciously, made of his testimony a blanket accusation of the German medical profession.
It is unavailing to us here that Professor Leibbrant later, in a German newspaper, attempted to revise this point of view.
However, nothing better illustrates the success of the generalizing tendency of the prosecution than the spontaneous remark of a delegate to a recent session of the Bavarian Parliament who sank so low as to exclaim:
There is no crime to which a doctor in Germany would not have contributed.
It cannot be the talk of the defense in this trial to throw the proper light on the German physician after 1933 and to extoll his services. Let the millions do that who were treated and healed according to the precepts of medical science and medical ethics by a conscientious stalwart German doctor after 1933 to whom they owe their lives.
Perhaps there are several 1000 foreigners among them, too. Let those people do it who can tell of the sacrifice, the silent heroism of the German physician in times of peace and war, and his self-denying service for humanity. They can probably tell you that it was not as if a certain percentage of National Socialist thinking was injected with every hypodermic needle which was administered a patient to cure him, as sometimes appears to be suggested by the Prosecution.
The understandable tendency of the prosecution to generalize should not, in the end, result in letting entirely secondary matters emerge as dominating ones, and in making people responsible for things for which they do not have the least semblance of responsibility. It is just in a criminal action as important as this one against 23 men of the health service that it is the greatest task to prove the individual responsibility of each defendant and thus find a basis for the presentation of the evidence. This task may not be altogether easy, because of external conditions if for example these defendants are simply described in German newspapers as these 23 German hangmen, without knowledge of the real facts and the acts with which they are charged and without grading the responsibility of the individual, and moreover if at the end of the presentation of the indictment, a book is published under the title "Dictate of contempt of human beings," which one-sidedly contains only the prosecutions documents, then right from the beginning the task of defense does not appear exactly simple.
The verdict against Erhard Milch gave certain indications regarding legal concepts in Anglo-Saxon procedure by recommending to the German people appreciation and veneration for those legal principles upon which Democracy is founded.
In this connection it mentions the significant principles which lie at the root of these legal concepts:
Every person charged with a crime is in the first place presumed to be innocent.
He remains under the protection of this legal presumption until his guild has been proved beyond a reasonable doubt.
I wish to use these principles, too, in the final arguments for the defendant, Poppendick, in order thus to give the High Tribunal as clear a picture as possible of the legal and actual foundations on which the Prosecution bases its indictment of the defendant Poppendick.
The defendant, Helmut Poppendick, raised in the rural vicinity of Oldenburg, attracted to the medical profession by the example of the family physician, an honest family physician, spent the years of his education as well as the first years as a practicing physician in sanatoria and clinics in Berlin and its immediate vicinity as a specialist for internal diseases, until stimulated by the personality of Prof. Lenz and his own inclination for natural science, he turned to hereditary biology. Then he soon becomes genealogical physician in the later Main Race and Settlement office and thus attained a more or less administrative medical position which ended up in the mere medical handling of marriage applications of members of the SS, an occupation to which he remained loyal until the end of the war, except for a period of war service.
Purely as one of the personnel, he comes under the supreme authority of the Reichs Physician SS, Grawitz, to whom the physicians of the Main Race and settlement Office were subordinated in the year 1939.
In line with the reorganization of the medical department of the SS Poppendick then becomes leading physician retaining his position and occupation in the Main Race Settlement Office from 1941 on with the formal title of "Chief of the private personal Office of the Reichs Physician SS and Police" in order to permit Grawitz to create yet another office in a staff already too large.
This one connection as an occasional co-worker of Grawitz, which he remained even after his formal appointment as chief of the personal office, appears to the defense as the reason why Poppendick is sitting here in the defendants' dock.
The defense does not deny that some of the experiments referred to here in Court came through by way of Grawitz. It does not fail to recognize the position of the Prosecution, which, when it summoned the defendants to this trial, was misled by the high sounding title of "Chief of the personal office of the Reich Physician SS and Police" to the assumption.
That after Grawitz' death a co-worker with that title could properly share certain responsibilities, or at the very least be able to show a sharing of knowledge of the most important events related to this trial.
The fact that this tale, however, did not correspond to Poppendick's actual activities and position in Grawitz' office would not remain concealed even from the Prosecution in course of the presentation of the prosecution document's and the testimony of their witnesses, as well as later in the presentation of evidence for the Defense. In spite of the fact that ample documentary material was available to the Prosecution, and it was in a position to call witnesses in unlimited numbers from everywhere, the material given in evidence is surprisingly insignificant and is of a kind which has extremely little in common with the matters mentioned in the indictment.
An explicit description of my position with respect to Count I of the indictment is contained in my written argument so that I can spare myself here the trouble going into further details in this matter. It may suffice to suggest that the notion of conspiracy used in this trial is probably entirely untenable from a legal as well as an actual viewpoint. As for Counts II and III of the indictment it cannot be maintained seriously and with legal consistency that the defendant, Dr. Poppendick, carried out the experiments named in the indictment, orders them or supported them. The Prosecution, to be sure, in a summary of its closing brief contended:
He supported such experiments and several were instigated by him.
And thereby laid it on pretty thick even from their point of view. In Part II of its argument, in which it refers to the individual experiments, it presented no conclusive evidence that even upon critical examination actual support for even orders to make experiments can be attributed to the defendant.
Essentially, what the prosecution wishes to prove under Counts Two and Three is knowledge of the experiments discussed here in court. A support for my case the logical deductions from the Milch judgement appeared quite serviceable to me which stated the following prerequisites for knowledge of the experiments and a consequent responsibility according to our Counts Two and Three:
It must be proved that the defendant in question had knowledge of criminal experiments.
That the defendant, on the basis of his knowledge, knew that these experiments were criminal in aim and execution.
That he had this knowledge early enough to be able to take steps to prevent the experiments.
That he had the power to prevent them.
These prerequisites for a juridically significant knowledge in the sense of Counts Two and Three are stated verbatim in Judge Mussmano's concurring opinion (page 92, German Text), and also in essence in the actual Milch judgment (pages 2 and 3).
The defense will state its case regarding the experiments discussed in the closing brief of the prosecution in the same order:
I. Incendiary Bomb Experiments.
The prosecution asserts that reports revealing the criminal nature of such experiments were sent to Poppendick. It does not assert that Poppendick knew of these matters early enough to be able to prevent them.
In its final written statement the defense has proved that Poppendick could have had no knowledge of the incendiary bomb reports and that the evidence presented by the prosecution is not sufficient conclusively to prove the contrary.
Even if we admit that the defendant Poppendick saw such an incendiary bomb report with photographs after the experiments were already concluded, however, how is he then to undertake steps to prevent the experiments?
Even the knowledge of the incendiary bomb experiments which the prosecution alleges he had would not suffice to make the defendant, on the basis of this alleged knowledge responsible according to Counts Two and Three for execution of the incendiary bomb experiments.
II. Hormone Experiments.
The prosecution asserts that Poppendick ordered these experiments and consequently had knowledge of them before they began.
Regarding these so-called experiments, which were not mentioned in the Indictment, the defense has been quite exhaustive. It believes it has proved:
That the alleged hormone experiments were not criminal experiments but a method of treatment already recognized in medical science;
That this method of treatment was in no way dangerous; that no fatalities occurred or are conceivable;
That the orders for these experiments emanated from Himmler and Lolling, but that the single letter with the signature "By order, Poppendick" is by no means an order that these experiments should be undertaken, but is a letter in which Grawitz tells Dr. Ding to assist Dr. Vaernet in the preliminary chemical research by giving him laboratory material, after Dr. Lolling had asked Grawitz for this assistance.
That no regular experimental reports went from Dr. Vaernet to Poppendick.
Since this method of treatment was not criminal, and since furthermore the defendant Poppendick could not regard the aims and execution of this method of treatment as criminal, how can he be held particularly responsible according to Counts Two and Three because of this alleged knowledge.
III. Typhus Experiments.
The prosecution asserts that Poppendick asked Mrugowsky to tell Ding to begin typhus experiments with sulfonamides from the research department Vonkennel, and bases its contention on documents NO 1182 to NO 1185.
These facts may be true, but the prosecution is forgetting the following:
Professor Vonkennel asked the Reich Physician to find him a clinic with soldiers infected with typhus, at which Vonkennel's already sufficiently tested sulfonamide drug was to be further tested. In other words, he wanted to have the director of a typhus clinic, which was not available to himself, carry out a normal clinical test such as is undertaken daily in large hospitals.
The Reich Physician requested such opportunity from the competent hygienist, Mrugowsky.
The measures necessary for this purpose were initiated. Whether such clinical experiment was actually carried out, cannot be gathered from the entire body of evidence introduced.
This contemplated clinical experiment, even from the purely factual point of view, has nothing to do with the typhus experiments of Dr. Ding dealt with before this Tribunal.
So far, the intermittent activity of Poppendick by order of the Reich Physician constitutes no connection with criminal experiments. Accordingly, all four suppositions of complicity through knowledge, which might be of importance within the scope of Counts II and III of the indictment, are missing.
The prosecution further contends that Poppendick was aware of the typhus experiments proper of Dr. Ding which have been discussed in detail here.
The defense has, in its closing brief, in sufficient detail expressed its opinion concerning this contention, being able to prove beyond doubt that Poppendick was not in a position to have such knowledge since he neither attended the lecture of Dr. Ding at the Third Consulting Conference, nor could he, from the Document No. 582, Prosecution Exhibit 286, the publication of Ding on Acridin, gather that the foundations of this work were allegedly criminal experiments. Neither has the prosecution been able to raise any justifiable objections against these two last-named facts.
IV. Sterilization Experiments.
The prosecution maintains, without being in possession of the necessary documentary evidence, that Poppendick was familiar with the criminal sterilization experiments performed by Clauberg, and that they were even supported by him.
As previously during the taking of evidence, so also in its closing brief the prosecution attempts to confuse the two groups of pertinent features: Prevention of female sterility, i.e. treatment of SS fiancees who had become sterile through disease, and the actual sterilization experiments of Professor Clauberg. This confusion must be ascribed not least to the erroneous translation.
Therefore, the task of the defense, in the detailed exposition of its opinion on this question, consisted in separating these two groups of facts properly from each other, in actual accordance with the evidence introduced.
Whoever knew about Clauberg that he was a physician for treatment of female sterility is not, through this knowledge, forced to possess knowledge also of Clauberg's other activity, performance of sterilization experiments.
So far this mere assumption of the prosecution that Poppendick must have known also about the sterilization experiments of Professor Clauberg cannot possibly be maintained, in particular as no evidence to this effect is available.
Consequently, the defendant Poppendick cannot be charged with a special responsibility for the sterilization experiments when not even positive proof of his knowledge of these experiments could be produced.
V. Sulfonamide Experiments.
The prosecution maintains that Poppendick learned about the experiments prior to their completion and supported them.
As to the last-named contention of support, no conclusive evidence has been produced which could in any way be applicable to this form of participation.
Concerning the first contention of knowledge of the experiments before they were completed but after they had started, I am to be allowed to refer in general to my detailed exposition on this alleged knowledge of the sulfonamide experiments in my closing brief. Let us, however, for once assume that the contention of the prosecution is correct: that Poppendick really had learned of the sulfonamide experiments through the intermediate report of Professor Gebhardt. The question is: did he get this knowledge in time in order to have the experiments stopped?
Part of the experiments are described already in this intermediate report, even though the more difficult experiments were carried out only subsequently. Undoubtedly the possibility of preventing the following experiments must still have existed.
But did the defendant Poppendick, in his position at that time of occasional assistant, possess the power to do so? This particular question must undoubtedly be answered with "no" in view of my subsequent exposition concerning the position of the defendant.
VI. Phlegmone Experiments.
The prosecution maintains that Poppendick must have known about these experiments. To what extent this contention is not true I have discussed in my answer to the closing brief of the prosecution. But let us assume for once that Poppendick had really, through the final report of Dr. Grawitz, learned about the phlegmon experiments, was then this knowledge obtained early enough to establish the possibility for him to prevent the experiments?
This can be denied without further argument since the experiments described in this report were already completed.
It is consequently not possible to consider his knowledge alleged by the prosecution, to be legally significant in relation to Counts II and III of the indictment.
VII. Polygal Experiment.
The prosecution maintains that Poppendick must have known about these experiments and even encouraged them.
The last-named contention has been supported by no piece of evidence.
Now, concerning the contention of knowledge, it appears to the defense above all important to separate clearly on one side the polygal experiments of Dr. Ploetner and, on the other hand, the experiments of Dr. Rascher, in connection with which shootings are said to have occurred although it is not possible to know for sure, on the basis of the evidence produced, whether they were actually carried out. Here I am interested only in the blood coagulating experiments of Dr. Ploetner described by the prisoners Neff and Puzengruber who participated voluntarily as completely innocuous and customary. I here refer to my exposition in answer to the closing brief of the prosecution.
On the basis of the evidence produced by the prosecution and the defense, not even a well-founded assumption to the effect that Poppendick must have known about the blood coagulating experiments of Dr. Ploetner can be entertained. Still loss can he be charged with a special responsibility.
THE PRESIDENT: Counsel, as you are starting a new subject of your argument, the Tribunal will now be in recess for a few moments.
(A recess was taken.)