1947-07-17, #3: Doctors' Trial (mid morning)

Dr. Boehm, counsel for defendant Helmut Poppendick, concludes his closing argument

THE MARSHAL: The Tribunal is again in session.

THE PRESIDENT: Counsel may proceed.

DR. BOEHM: Mr. President, your Honor, I am now coming to VIII of my statement—

VIII. Malaria experiments.

Here again the Prosecution maintained that the defendant Poppendick must have known about Professor Schilling's malaria experiments.

As to the entries in the diary, Sievers did have reference to Poppendick. In his affidavit Sievers, as well as Poppendick himself, in the witness box, have pronounced their opinion on this matter. Their statements are undisputed. From no evidence in possession of the prosecution can knowledge of allegedly criminal activity on the part of Professor Schilling be deduced. Even if one were to admit that Poppendick had heard of these experiments early enough, it cannot be proved that he had the power to prevent them. More about this later.

IX. Seawater Experiments.

The Prosecution neglected in its closing brief to assert that the defendant Poppendick knew anything of these experiments. Nowhere is there any evidence whatsoever that he did. Consequently I do not have to enter upon this question.

X. Freezing Experiments.

The Prosecution asserts that the defendant Poppendick had knowledge of the dry cold experiments before their beginning, and of the wet cold experiments after their conclusion. I believe that in my closing brief I have sufficiently proved that Poppendick could have had no knowledge of the wet cold experiments. Moreover, such knowledge would be of no importance in determining a particular responsibility according to Counts Two and Three, because at the time of the Grawitz-Rascher discussion, to which Poppendick was later called, the wet cold experiments had already been concluded. So far as the dry cold experiments are concerned, it can be unmistakably seen from the evidence presented by the defense that in this conference there was undoubtedly discussion of additional experience in cases of freezing suffered by troops in the East; this experience was to be collected; and by no means was there discussion of intended experiments in concentration camps. Even if we were to grant that Poppendick found out about criminal dry cold experiments at this conference, before they began, where is the proof that he really, on the basis of his official position, was in a position to stop these dry cold experiments?

XI. Epidemic Jaundice Experiments.

Here again the Prosecution in its closing brief neglected to assert that the defendant Poppendick was guilty. It merely asserts that at the time that these allegedly criminal experiments took place Poppendick had long been ah important associate of Grawitz's.

Since no responsibility, according to Counts Two and Three, can be deduced from such assertions without substantiating proof and without legal significance, I need not enter upon this question.

If I have dealt with the individual groups of experiments in the same order as in the closing brief of the Prosecution, I have not done so in order to agree that the groups of experiments that are not mentioned in the indictment, so far as they here pertain, namely, hormone experiments, phlegmon experiments, and polygal experiments, are of legal weight within the frame of Counts Two and Three. On the contrary, I refer you to my statements on this juridical problem regarding the experiments that are not mentioned in the indictment.

The defense recognizes the experiments that are not mentioned in the indictment, in the event that they really were criminal, only so far as it depends on the defendant's knowledge of them whether the defendant is guilty or not under Count Four.

So far as the already treated experiments are concerned, it is apparent that knowledge on the part of the defendant or, more than that, support, an order, or execution by the defendant has not been proved.

The time at my disposal does not permit me to refer to the exhaustive treatment of these counts of the indictment in my closing brief.

In view of all these deductions from the evidence put in, I apply, with reference to the charges under Counts I, II, and III, for the acquittal of the defendant Poppendick.

I am all the more justified in making this application that I am in the position in what follows to prove that the defendant Poppendick't position was not that which the Prosecution ascribe to him, furthermore, that Poppendick also in his position in Grawitz' office did not have the power to prevent not yet concluded criminal experiments if he obtained knowledge of them.

What I am about to say appears to me of great importance with reference to Count IV.

The Prosecution describes the defendant Poppendick in its closing brief as "a very old member of the SS" and as "closest and most trusted collaborator of Grawitz." Aside from the fact that a member of the SS who entered the organization only a few months before the National Socialist accession to power cannot be described as a very old member, the fact is not disputed that Poppendick joined the SS in 1932. But was he the closest and most trusted collaborator of Grawitz? In 1932 through a purely inner office-transfer in the SS, Poppendick came under the Reich Physicians Authority. After his return from the front in 1941, Poppendick, in addition to his main activity as doctor in the Sippenamt [Genealogy Office], became at the same time an occasional collaborator of Grawitz. This parallel activity in several capacities, during which the work with the Reich Physicians always remained the least important of all his activities, continued until 1945. Even the Prosecution has granted in its closing brief that the defendant's activities remained the same before and after the reorganization in 1943. It thus agrees with the defendant that despite the title "Chief of the Personal Office of the Reich Physicians SS and Police" Poppendick's main activity still took place in the Marriage Bureau of the SS, and that he was only incidentally Grawitz' occasional collaborator. The Prosecutor has said that the defendant called himself nothing more than Grawitz' messenger boy, this expression is certainly incorrect. But on the other hand, one cannot conclude simply from the defendant's rank in the SS that he must perforce have occupied a leading position in Grawitz' organization. The defendant owes his rank and his promotion only to his activities in The Race and Settlement Main Office, in which he was appointed leading physician in 1941.

Nothing proves this more conclusively than the recommendation for promotion, phrased in exaggerations, which Grawitz made in 1944 (NO-1120, Exhibit 544), in which he states, first of all, that the defendant joined the SS in 1931, although he really joined in 1932, and in which also he places Poppendick's activities in The Pace and Settlement Main Office in the foreground and deals in hollow phrases with Poppendick's activities as Director of the Personal Office. The Prosecution themselves have said that the adjutant and the secretary were given the unimportant work to do — then what work remains for Poppendick to do, in view of the slight amount of work there was in Grawitz' staff?

Nothing shows better than the file notes of the letters sent out by Grawitz, in comparison to the respective periods of time, how few official letters were sent out by the Reich Physician. One may believe the Defendant when he says that Grawitz gave him this title, "Chief of the Personal Office", with the following words:

"I" (Grawitz) "shall continue to handle the small amount of mail together with my secretary. You" (Poppendick) "can go on about your business in the Pace and Settlement Main Office. I just want to keep this 'Personal Office' so that I can use it in some way later. But so that this office is not taken away from me, I have to have someone to whom I can give this title."

The secretary as well as the adjutant were with Grawitz all day, while Poppendick in general continued to work at the Marriage Office.

If Poppendick had really been the close and confidential associate of Grawitz and even, together with Gebhardt and Mrugowsky, as the Prosecution alleges, one of Grawitz' three most important associates, then why did Grawitz make him a Leading Physician in the Race and Settlement Main Office at all, although Grawitz knew very well that then he would not have Poppendick working for him any more? Why did Grawitz in 1942 call Dr. Wille back from the field for the post of Chief of Staff which he intended to set up, although Poppendick was in Germany and it certainly would not have been difficult for Grawitz to have Poppendick released from his work with the Marriage Office of the SS?

Why did Grawitz only assign one clerk to him and the office of the Chief Dentist together, if Poppendick was really Grawitz' closest and most confidential associate?

Why did Poppendick not represent Grawitz whenever he went on an official trip or on leave? Why did he not make Poppendick his adjutant; then he would have had his alleged closest and most confidential associate with him daily.

Why did Grawitz give Poppendick no general authority to issue regulations or orders, which would have been binding on coordinate or subordinate offices? Why was this supposed most confidential associate only in a concentration camp for one hour once during the war?

Why did Poppendick never accompany the Reich Physician on official trips?

I could go on with these questions, indefinitely, in order to lead the idea of the Prosecution, which is not attested by a single document, ad absurdum. One would imagine, in the closest and most confidential associate of Grawitz a different position from the one which Poppendick held as occasional worker for Grawitz.

In no case, however, did the Defendant Poppendick — and herewith I come back briefly to the questions on Counts II and III of the Indictment — hold a position under Grawitz such that he could have prevented experiments which Himmler, for example, wanted to carry out, if he had learned of them in time.

If the Tribunal in Case II considers it impossible that a man like Field Marshal Milch had the power to prevent experiments of Luftwaffe medical officers, if he had had knowledge of these experiments in time, how then can one conceive the idea that an occasional associate of Grawitz, who worked in Grawitz' office only now and then, could have had influence on the execution or non-execution of any experiments which were ordered? The various descriptions of Grawitz' character all agree on one point — that Grawitz didn't allow anybody to strike a bargain with him, foremost for fear of Himmler for whom he cherished a dog-like loyalty ("The obedient dog retrieves the hare") and that not one of Grawitz' collaborators succeeded to obtain even a minor confidential position which he could have used to exercise a mitigating influence on the course of events. At the end of my trial brief I went into that whole compels at great length; I therefore can content myself with that short reference.

Within the framework of Count No. IV the membership of an organization declared criminal by the International Military Tribunal is not decisive alone, but, according to correct legalistic view, the additional requirement must exist that every individual accused member thereof must have had knowledge of or must have participated in crimes committed by this organization after 1939. It is the task of the Prosecution to prove their allegations (cf. my legal statements in my Closing Brief). The Prosecution certainly has taken on this task in our proceedings and they have tried to prove that the defendant had knowledge of certain criminal experiments. As far as I have stated my point up to now concerning the question of knowledge of criminal experiments, I have already dealt with it as far as it concerns the defendant Poppendick. I may, however, state once again that the hormone and Polygal experiments are to be dismissed as non-criminal from the very start, in the sense of the indictment, and that it could not be proved that the defendant had any knowledge whatsoever of criminal sterilization, typhus, malaria, sea water and epidemic jaundice experiments, even if one reviews the evidence submitted with an utterly critical eye; that furthermore the knowledge of incendiary bomb, sulfonamide, phlegmone and freezing experiments could not be proved by the Prosecution beyond the shadow of reasonable doubt.

Particularly with a view to the experiments named just now it will be left to the judgment of the Tribunal whether or not a knowledge on the part of the defendant Poppendick of these experiments can be deduced, beyond certain vague assumptions and without the firm basis of indisputable facts, once one has arrived at the conclusion that these last named experiments have really been criminal.

Should the Tribunal be convinced that the evidence submitted is sufficient to deem the defendant guilty under Count No. IV, then I think it advisable to refer to my written statements about the scope of the punishment to be meted out. The judgment of the International Military Tribunal has given a certain guidance for future proceedings against members of criminal organizations concerning the measure of punishment. I quote:

The Tribunal recommends that the punishment meted out to members of an organization declared criminal by the Tribunal on the basis of Law No. 10 should in no case be higher than stipulated by the Denazification Law for the American Zone. Nobody is to be punished according to both laws.

An over-all regulation of the problem even by precedent, has not been made yet in the American Zone, whilst in the British Zone it has been regulated by law in the sense of the recommendation quoted above. This Honorable Tribunal will then be the first of the Military Tribunal in Nurnberg to judge members of criminal organizations and thereby create a precedent for future cases.

If at the conclusion of my speech which briefly summarized the result of the evidence against the defendant Poppendick I may turn to the Tribunal I do so only with the knowledge that the High Tribunal will carefully scrutinize the evidence which has so assiduously been submitted and will decide about guilt or innocence of the accused without favor.

In this sense I plead for a just judgment of the defendant Helmut Poppendick whom I represent.