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 2 days before he tole 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 phantastic 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 soda 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. 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 Reichs-Kriminal-Polizeiamt 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 yold 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 18 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 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 20 hours. Also for this Pervitin 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 6 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 80 bottoles with prussic adic 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 6 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 gouvernment 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 prupose 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 dysentry protective vaccination and the testing of yellow fever vaccines. At none of these protective vaccinations artificial infection was carried through. That artificial vaccination was adoperated would have to be proven by tine 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 explicitely 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 helath. At Buchenwald the blood serum preserve was used also exclusively for therapeuthic purposes. Under no aspect this use can be called an "experiment". For there was no experiment to be made with this approved therapeuticum.
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 offence of his under criminal law.
Finally the Prosecution has charged reproached to Mrugowsky with having ordered the "Cyclond 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 practised no SS po litics 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.
THE PRESIDENT: The Tribunal will now hear from counsel for the defendant, Poppendick:
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 inaginary 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 venesect, 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:
a. The non-German doctor who in the past decades has held medical ethics at a high level;
b. The German doctor who, in the years from 1933 to 1945, stood under the complete sway of biologistic thinging, as Professor Leibbrant put it;
c. 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 uncounsciously, 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:
1. Every person charged with a crime is in the first place presumed to be innocent.
2. 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 phycisian 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 Reichsphycisian 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:
1) It must be proved that the defendant in question had knowledge of criminal experiments.
2) That the defendant, on the basis of his knowledge, knew that these experiments were criminal in aim and execution.
3). That he had this knowledge early enough to be able to take steps to prevent the experiments.
4). 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:
1. 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 conslusively 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.