Q Yes.
A No, sir.
Q Did she ever make any before that time?
A Not to me directly, because I came into the job that I now hold around March 15.
Q So that anything you know about this is what you heard. She didn't make the request to you?
A No, sir.
MR. LA FOLLETTE: That is all
THE PRESIDENT: Is there cross-examination of this witness? The witness is excused. Call your next witness.
MR. LA FOLLETTE: Call Dr. Gerstaecker.
DR. WILHEIM GERSTAECKER, a witness, took the stand and testified as follows:
JUDGE HARDING: Hold up your right hand and repeat after me:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath).
JUDGE HARDING: You may be seated, Doctor.
DIRECT EXAMINATION BY MR. LA FOLLETTE:
Q Doctor, you will state your name and profession to the Tribunal, where you are presently working or employed.
A DR. Wilhelm Gerstaecker, specialist for neurology and psychiatry, doctor at the Neurological Clinic of the Hospital at Nurnberg, of the City Hospital at Nurnberg.
Q Are you the same Dr. Gerstaecker who was appointed by this Tribunal to examine and report on the mental condition of Karl Engert, the defendant in this case?
A Yes.
Q I ask you whether....When were you advised of that appointment? ******** A On the 27th of June, in the evening, at five o'clock, through Miss Kraetzer.
Q Miss Kraetzer.... did she have something to do with the examination of Engert also?
A Yes.
Q She was to examine his physical condition, is that correct?
A Yes.
Q After the evening of 27 June 1947, when and where did you first see Dr. Hans Marx, an attorney for Engert?
A I saw Dr. Marx on the 28 of June, in the morning. That was at our clinic.
Q Did you have a conversation with Dr. Marx there, at the clinic, that morning?
A Yes.
Q Was anyone present in addition to you and Dr. Marx, during that conversation?
A Dr. Stern, who is also a doctor at the City Hospital, came to me together with Dr. Marx. He introduced me to Dr. Marx and Dr. Marx to me, and then we discussed the question of the expert opinion to he given.
Q I will ask you whether anything Dr. Marx said in that conversation with you with reference to the importance or lack of importance of the defendant Engert, and with reference to the attitude of the American authorities in the case in which Engert was a defendant, towards retaining him as a defendant in that case. Did he discuss that with you?
A Yes.
Q What did he say?
A He said that the case Engert was as such not of great importance for the Court, and that the Court, the Tribunal --I that is, he didn't say Tribunal, he said the -Americans, but as far as I was concerned that had to mean the same to me in that connection -- that the Americans with the aid of expert opinions would like to sever his case from the trial.
Q Was Dr. Stern present during that conversation on the 28th of June?
A Yes, from the beginning to the end of the conversation.
Q Did you prepare a written expert opinion originally, or not, on the mental condition of Dr. Engert pursuant to your appointment by the Court, and after this conversation with Dr. Marx?
A Yes.
Q To whom did you deliver that report?
A To Dr. Stern.
Q Can you tell the Tribunal why you delivered it to Dr. Stem?
A Dr. Marx had told me to do so.
Q Will you tell the Tribunal just briefly what you know of Dr. Stern.... he works in the Krankenhaus, and also does he work elsewhere around the courthouse? Where does he....what is his position?
A He is an assistant doctor, Assistenz--Arzt, at the Medical Department of the City Hospital. As for his activity here with the Court jail. I don't know anything for certain.
Q But you did know that he worked in connection with the Justice Palace and in the jail, is that right?
A Yes, I do.
Q I ask you whether or not Dr. Stern speaks English, and did you know whether or not he was to translate this report of yours?
A He does speak English, that is known to me; and he was to translate that expert opinion, and I have seen myself when I brought the expert opinion on Monday that he was already working on the translation of the expert opinion by Dr. Kraetzer.
Q Now, then - subsequent to the 30th of June 1947, Aid you receive a questionnaire in this matter, of the mental condition of Karl Engert, and if so, what was the form of the questionnaire? Just describe it to the Court, will you please?
A The questionnaire consisted of two sheets: On the first page there were the questions put by the Tribunal, the questions which had to be answered by yes or no; on the second page, the text continued for a few lines, but no longer medical questions. There was room for my signature, and there was already a signature on it by an official of the Court.
Q Did you fill out the questions...how many questions were there?
A There were three questions.
Q Did you answer them?
A Yes, I did.
Q And you answered each of the, "yes"?
A I answered every question with "yes".
Q Then what did you do with the questionnaire? What did you do with that after you signed it and answered the questions?
A The questionnaire, as far as I remember, I gave it to Miss Kraetzer, Dr. Kraetzer.
Q Now, you hold in your possession the Prosecution's Exhibit No. 4; the second sheet, bears your signature.
A Yes.
Q Will you tell the Tribunal whether or not that is in the form in which you signed it, whether that is the original which you turned over to Dr. Kraetzer, or can you tell?
A The signature is the one and only signature that I gave in connection with that questionnaire. That is my signature all right. Whether the first sheet here is still the original. I do not know; it could be the second one that I filled out.
Q Now, then, will you tell the Tribunal - after you filled out your report of yes and no, and gave it to Dr. Kraetzer, did any one within the next few days call on you with reference to the subject matter of that report and discuss your report with you?
A During the next few days a woman called on me....
Q Excuse me....Do you sec the woman here in the courtroom?
A Yes, he is sitting opposite me, on the right.
Q Yes, thank you. Now go ahead. Just tell the Court about the time when she came, the circumstances of her visit, what she said, and what took place there when she called on you?
A The lady came to me together with the sister, the chief nurse of our hospital, whom I had known throughout my activity at the hospital. And she brought a questionnaire to me, a similar one, similar to the one which I have just discussed. It consisted of two sheets, two loose sheets, whereas the first one had been stapled together. The second sheet was the one from the first questionnaire, with the signature I had affixed on that. The first page, as far as I could sec, was quite similar to the one that was submitted to me first, but it was not filled out, that is to say, without my entries.
Q Did this woman, whom you have identified as Miss Huppertz, say anything to you about why she brought the first sheet blank without your signature, and what she wanted you to do anything about it, if anything?
A She told me.... Now, I have to withdraw that. I expressed my surprise that the document I had originally filled out was separated, and that my first entries, written with my own hand, were no longer together with my signature. She explained to me that this would afford an opportunity to consider once more the answers to these questions, and possibly to fill it out in a different way, for Dr. Marx had been ordered to see an important person in the Court, who told him in a rather severe tone that the expert opinion given by the American doctors were quite different from the expert opinions given by the German doctors. In that connection I had to assume that I was expected to change my answers to the effect that they should be more similar to the opinions which I did not know, rendered by the American doctors.
Q Did Frau Huppertz say anything to you about the..... did she request you, or suggest to you, in any way, that you change your answers?
A I can't recall a definite demand made to me.
Q. She did bring you this blank sheet and said that Dr. Marx had been ordered to complain because the German doctors were not the same as the American; is that right?
A. Yes.
Q. What did you say to her? Did you change your report or did you do anything about it?
A. Of course I did not change my report. First, I refused to make these entries again because the original had to be there. Then, after the lady tried to persuade me and also the head nurse of the hospital, whether it wouldn't be possible for the sake of expediency to do that, I filled in these answers again, but in the same sense, with the same meaning as the first time.
Q. You notice in Exhibit 4 that there are lines crossed on the first page. Did you place those there?
A. Yes.
Q. You put those in ?
A. Yes, I did.
Q. Now, then, when Frau Huppertz came in to see you, what did she say to you about who sent her? Did she say anything about why she came?
A. I cannot remember precisely whether she said that Dr. Marx had sent her directly or that she said she came from Dr. Marx' office; but I had to assume that it had to do with the defense of the defendant in question.
Q. Well, she didn't say to you that she came on her own, did she, just out of a clear sky?
A. Well, she explained what her position was. I asked her whether she was an employee of Dr. Marx and what the connection was with Dr. Marx and she said she was not really a secretary. She was not definitely an employee, but for reasons of personal interest she was working together with Dr. Marx in the interest of the defendants; from that I thought I could see clearly that she came in agreement with Dr. Marx; and the course of the conversation was such that I could not assume anything else.
That was the one reason why I filled out the document once more.
Q. Now, the original first page which you had signed she didn't have with her; she had what appeared to be a complete copy in blank. Is that right?
A. A blank copy. I didn't see the original first page; neither could she tell me where it was.
MR. LA FOLLETTE: That is all.
THE PRESIDENT: You may cross-examine. Just a moment, Doctor, you are appearing as attorney for whom?
DR. ORTH: For Dr. Marx.
THE PRESIDENT: Do you also appear for the other respondent, Huppertz?
DR. ORTH: No. My colleague, Dr. Nath, is going to do that.
CROSS EXAMINATION BY DR. ORTH:
Q. Witness, you have stated that on the 27 of June in the evening, at five o' clock, Dr. Kraetzer notified you that you were to give an expert opinion. What did Dr. Kraetzer tell you at that time?
A. Dr. Kraetzer brought me the copy of a ruling by the Tribunal which appointed me as expert, and told me that on the very same day in the afternoon, rather, at noon, the American doctors who were mentioned in that ruling, had been there and had examined the defendant.
Q. After you received that assignment did you have a conversation with Dr. Stern?
A. I talked to Dr. Stern on the same evening over the telephone.
Q. When you received that assignment to give an expert opinion did you know where that assignment came from?
A. I had to assume that the assignment came from the Military Tribunal. However, I did not see any ruling that was signed by hand;
neither did I receive any copy of such a ruling; nor could Miss Kraetzer show me one.
Q. How was that conversation with Dr. Marx on the 28 of June?
A. On the 28 of June after my visiting round I was called away. Dr. Stern came to see me with Dr. Marx, introduced us, and then we talked about my misgivings, which I had already voiced to Dr. Stern previously and of which Dr. Stern had told Dr. Marx also, that I had been nominated as an expert by the Tribunal without having been asked at all previously by the defense whether I agreed to do so.
Q. Was that all that was discussed during that conversation?
A. No.
Q. What did you discuss ?
A. Dr. Marx tried to explain and said that he had already arranged it with Dr. Stern and that it really would have been up to Dr. Stern to inform me. I said even that would not have been sufficient because Dr. Stern, though I know him as a colleague and I would gladly discuss everything with him, could not approach me as a representative of the defense or the court.
Q. Wasn't it so that first of all you objected to the short period of time within which you were to give your expert opinion? You were quite excited about that?
A. I made a statement to that effect, and I admit that I rather emphasized it, saying that if a deadline of the third of July was given to me I was not in a position to give an expert opinion if I only found out about that on the 27th in the evening at five o'clock, and I am expected to submit a written expert opinion on the 28 at noon, which could play an important part in a trial.
Q. Didn't you also complain about the fact that you did not receive any files to look through?
A. Yes; I also remarked about that.
THE PRESIDENT: Just a moment. The Tribunal will take a few moments' recess at this time.
(Whereupon, a brief recess was taken.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: You may proceed.
BY DR. ORTH:
Q Dr. Gerstacker, when you had your conversation with Dr. Marx, did you hold him responsible for the fact that the time given to you to express an opinion was too short?
A First I was of the opinion that that short time limit had been fixed by Dr. Marx.
Q And was that the reason why your conversation was very excited?
A The reason for that was primarily due to the fact that Dr. Marx had not asked me previously. I was not considerably excited, I only spoke in a very strong way, saying that I had expected of a man versed in the routine of court to ask me first.
Q Where did that conversation take place?
A On the second floor of our clinic in the female patient's ward.
Q Didn't Dr. Marx make it clear that you could refuse to give an expert opinion if you did not have enough time to prepare it?
THE PRESIDENT: We are not concerned with the discussion between the parties concerned and the shortness of the time. The question only relates to the charges of alleged improper conduct in attempting to influence the decision of this witness.
Ask your next question.
BY DR. ORTH:
Q Dr. Marx explained to you, according to your statement today, that the Americans desired to get Engert out of this trial. In your former affidavit you said that Dr. Marx had informed you that he had gained the impression that the Americans, with the aid of medical experts, wanted to drop the case; how do you explain the difference in your statements one of which apparently is not in accordance with facts?
A Maybe I did not express myself precisely enough this morning, but I stand for what I said in my affidavit, that Dr. Marx said he had gained the impression.
Q The remarks made by an individual that he, as an individual, believed somebody else has a certain attitude; could that in any way be designed to influence your answer in any way?
MR. LA FOLLETTE: I object.
THE PRESIDENT: The objection is sustained, that is a question for the Tribunal to decide.
BY DR. ORTH:
Q Did you gain the impression at that time that Dr. Marx decided to influence you?
A Yes, I definitely gained that impression.
Q Why did you not immediately reject that attempt at influencing you and discontinue your conversation with him?
A I could give the expert opinion to the effect as I considered it to be right.
Q Did you make any remarks to Dr. Marx that you would not permit yourself to be influenced during that conversation?
A Indirectly I did say that. I told him I did not believe that the court would need medical experts in order to conduct the trial in the manner that was deemed necessary.
Q Didn't you deduce from the fact that the court asked for a medical opinion that the court had not yet made its decision?
MR. LA FOLLETTE: I object.
THE PRESIDENT: Obviously the answer is that the witness must have known that the court was waiting for the decision of the experts before deciding the question concerning Engert. It is so obvious, it is unnecessary to go into it. You understood that Doctor?
DR. ORTH: Yes, I do.
BY DR. ORTH:
Q Did you speak to Dr. Stern later about the conversation you had with Dr. Marx?
AAs far as I can remember yes, I think I spoke to him about it briefly.
Q And what did you tell Dr. Stern?
A That I believed Dr. Marx knew precisely what was at stake, but that he attempted to submit to me a somewhat changed picture and that above all I did not believe that Dr. Marx did not know of the decision made by the court, which assigned me to give an expert opinion, for it because he did not know what was contained therein.
Q Did you speak of that to Dr. Marx too?
A I believe so.
Q What did you think when Dr. Marx, according to your statements, said that the Americans wanted to drop the case Engert?
MR. LA FOLLETTE: I object, your Honor, for the reason it calls for the subjective opinion of the witness and has nothing to do with the direct examination before it.
THE PRESIDENT: Objection sustained.
BY DR. ORTH:
Q You have stated during your testimony that Dr. Marx stated that the case Engert was of no great importance to the Tribunal and that the Americans with the aid of expert medical opinions wanted to sever the case Engert from the entire trial?
A Yes.
Q Could you or did you gain an impression of the organization or structure of this Court?
A Not in detail, but on the whole I want to say that from the outset I did not quite believe Dr. Marx's statements, but generally did gain the impression that he wanted to present the case and my particular task in as harmless as possible a manner and I had that impression in fact before I talked to Dr. Marx because through Dr. Stem and Dr. Kraeteer he informed me, and I had assumed it only came from Dr. Marx, that the Court did not place any particular emphasis on this case and only looked for some means in the form of a medical opinion. From the outset I assumed this was just a ruse on the part of the defense, and, therefore, I was opposed to the attitude of the defense. I had become cautious. Consequently when Dr. Marx made this statement in the course of the conversation on Saturday I accepted these statements with great caution.
Q When was it that Dr. Stern and Dr. Kraetzer talked to you before about that matter?
A On the 27th late in the afternoon about 1700, Dr. Kraeteer talked to me and Dr. Stern called me on the same evening over the telephone.
Q In your affidavit you stated that the conference with Dr. Marx took place in your office and today you say that it took place in the clinic, in the hall of the clinic, the corridor.
A The expression "office" as far as that is concerned, the office of a doctor is a clinic. I work throughout the clinic and in our particular profession I have to be where I work and where I do not work I am pulled by my coat practically everywhere.
DR. ORTH: I have no further questions.
THE PRESIDENT: Your name please and your profession?
DR. NATH SCHREIBER: My name is Dr. Nath Schreiber. I am in charge of the defense of the respondent Huppertz.
THE PRESIDENT: You may proceed to cross-examine.
BY DR. NATH SCHREIBER:
Q Dr. Gerstacker. May I put a few questions to you. On the morning of the 10th of July, together with the chief nurse, the respondent Huppertz came to you. In your affidavit you begin to deal with that part covering the conversation with the words: "Several days later a secretary of Dr. Marx came to me." Today you said that upon your specific questions Mrs. Huppertz had said that she was not an employee of Dr. Marx. You stated this morning literally that Mrs. Huppertz had said that for personal reasons she worked together with Dr. Marx and you had assumed that she was just working with Dr. Marx. You have admitted, therefore, that you drew a conclusion while in the affidavit you stated the same thing as an absolutely clear fact, that is to say, that she actually was a secretary for Dr. Marx, and I see a contradiction in that.
A I stand by my statement which I have made today; at the time when I drew up that affidavit I did not know how I should express myself to characterize the unclear position of Mrs. Huppertz, the right designation for it. At that time I did know any name, I didn't know just how I should designate it. As far as I know she came from the office of Dr. Marx, the counsel for Engert.
Q We agree that is a clear formula in your affidavit, that is clear, isn't it?
A The formula is clear but it is really Mrs. Huppertz' fault that there is something in it which is not clear because she did not state her position clearly.
THE PRESIDENT: You have gone far enough in calling to the attention of the Tribunal the difference between an assistant and a Secretary. Pass on to something else.
DR. SCHREIBER: Now, Dr. Gerstacker, I should like to put a question to you which is, I believe, somewhat in your field, namely, if a person is very excited, would your experience say that he is in a position to pay very careful attention to what he says himself or what another person tells him in the conversation to the same extent as a person who is absolutely calm?
THE PRESIDENT: We require no psychiatric testimony on the question of the effect of a person being somewhat excited.
MR. LA. FOLLETTE: There was no evidence of excitement in the direct examination.
BY DR. SCHREIBER:
Q Witness, in your affidavit you say literally the following:
"Several days later a Secretary of Dr. Marx came to me and brought the second page of my questionnaire with the signature, as well as an additional blank first page. She told me that she was sent by Dr. Marx so that I would be afforded an opportunity to fill out that questionnaire once more." An unbiased listener or reader must gain the impression therefrom that Frau Huppertz at the beginning of the conversation had submitted to you the questionaire and asked you to fill it out. I want to ask, you did Frau Huppertz give you at the beginning of your conversation or show you at the beginning of your conversation that questionaire or did it occur later in the course of the conversation?
Court No. III Case No. 3.
A That I can no longer say today. At any rate, it was not a long conversation, because I immediately stated my objections.
Q Yes, I see. May I ask you something else? Right at the beginning, during the first sentences, you heard the names of Engert and of Dr. Marx, did you not? That is quite natural. Now, on the 28th of June, you had a talk with Dr. Marx, which you personally did not exactly like very much. When you heard the names of Dr. Marx and Engert on that occasion, did you get excited?
AAs far as I can recall the situation, I do not believe so. Anyhow, I am an individual who does not lose his senses when he is dealing with a matter even if it concerns himself. Particularly, due to these methods used by the defense, I would not but let myself be carried away to a point where I would lose my senses.
Q I ask you if you became excited in the course of the conversation and whether you showed that.
A Yes, I showed that very clearly by raising my voice when I complained that such a thing was asked of me, and that the document which I signed had been taken apart.
Q Yes, we shall deal with that soon.
Now, you say in your affidavit, literally--and I quote: "She mentioned that Dr. Marx had been called before the Court." Today you said that Mrs. Huppertz had told you that Dr. Marx had been called to see some important person at the Court. Would you please explain that to me?
A I do not see any difference in that. At any rate, the account that was given to me was that it was an important official of the Court. I did not know whether that official was appointed by the Tribunal or the Prosecution.
Q Was this Tribunal included in the scope of your imagination when you heard that remark?
A Yes.
Q This Court before which we are now?
A No, not this one, but that of the Justice trial. I don't know Court No. III, Case No. 3.whether this is the same court.
Q In your affidavit you also say: she mentioned that Dr. Marx had been called to the Court and that he was addressed in very severe tones, and you said that today too. I am very much concerned with the actual wording. Can you recall with absolute precision whether Frau Huppertz used the words in that conversation that Dr. Marx had been reproached--that is to say, by the Court--in a severe tone?
A I don't recall the expression "severe tone", but I do recall, as far as my memory goes, that that person was even more excited, as if that court official had talked to Dr. Marx in great excitement. I had gained the impression of a person who sits at a desk, and there is some great power behind him, and poor Dr. Marx is standing in front of him and is getting a callingdown. That was the impression that I gained from the description given to me by Frau Huppertz.
Q You told us before that in the course of that conversation you became very excited and expressed that excitement. Do you believe it to be possible that, because of that excitement, you are no longer in a position today to give us the precise words of that conversation on both sides? I am concerned with the precise words.
A Well, that I cannot give the precise words is not based on the excitement of that conversation but it is because I could not assume at the time that it would lead to a trial where I would be asked to give testimony as a witness.
Q The respondent Frau Huppettz, as is quite natural, on the basis of your accusation, also became very excited on her part. Do you consider it possible that Frau Huppertz, in what she wanted to tell you, did not formulate it very happily in her excitement and therefore you had to get the wrong impression of some of the things she said?
MR. LA FOLLETTE: To which I object, Your Honor, for the reason that the question calls for the state of Frau Huppertz' mind, which is pretty incompetent for the witness to testify to.
THE PRESIDENT: Objection sustained; it is purely speculative.
Court No. III, Case No. 3.
BY DR. NATH-SCHREIBER:
Q Now, Frau Huppertz submitted that questionnaire to you-that most unfortunate document. First, you got justly excited because the questionnaire was no longer in its original form.
THE PRESIDENT: I think you may omit any further discussion about excitement. We have your point; just ask him the question.
DR. NATH-SCHREIBER: Good.
BY DR. NATH-SCHREIBER:
Q After Frau Huppertz had explained to you why that questionnaire was in that condition, did she tell you that she herself did not like it at all, and that it would be explained later. Didn't she say, "Well, after all, nothing has happened; here is your signature on the second page, and here is the copy which is not filled in, all you have to do is just put the "yes's" on it again, so that the document is again in good shape."? Thereupon you put your "yes" down three times, in the appropriate spaces. Is that correct?
A Mrs. Huppertz did not ask me from the outset to put the "yes's" in, but she first wanted me to think it over again and formulate it anew. Only after she could see from my attitude that I would not change my mind, she said: "Well, then, just complete the document by putting the same things in that you put in there the first time." However, before that, a remark was made by our chief nurse, who was present, as I explained before.
Q Is it true that Frau Huppertz said then, "Well, originally I intended to go to Dr. Kraetzer as well as to have the questionnaire filled out by her, but now I don't care to do that any more."? Isn't it also true that you said to Frau Huppertz, "You might as well go to Dr. Kraetzer, she is not as unfriendly as I am."?
MR. LA FOLLETTE: Your Honor, I object for the reason that there is no part of it in the direct examination.
THE PRESIDENT: He may answer that question.
You may answer if you recollect, Doctor.
THE WITNESS: I told Frau Huppertz, "You might as well go to Dr. Court No. III Case No. 3.Kraetzer, she will not be unfriendly as I am."
That was to mean that as from one woman to another, it would be easier to talk to her.
BY DR. NATH-SCHREIBER:
Q And then did you say goodbye to Mrs. Huppertz and did you shake her hand?
A I believe so.
Q Now you said today, literally, "I gained the impression from the request made by Frau Huppertz that in the interest of greater similarity of the expert opinions of the German and American doctors, she wanted to negotiate with me." And you also said: "I cannot remember that Frau Huppertz made a definite demand."
Were you of the opinion that Frau Huppertz intended to cause you, contrary to your own opinion, to give a wrong expert opinion?
MR. LA FOLLETTE: To which I object, Your Honor. It calls for the very issue which is before the Tribunal, and it is objected to.
THE PRESIDENT: I think the witness has already answered the question.
THE WITNESS: I answered that question with "yes".
BY DR. NATH-SCHREIBER:
Q If you were convinced of that, witness, then I would like to put the following to you:
You are a man, after all; why didn't you throw Frau Huppertz out of your office? Why....
MR. LA FOLLETTE: To which I object.
THE PRESIDENT: The objection is sustained.
THE PRESIDENT: Confine your questions to the relevant issues in the case.
BY DR. NATH-SCHREIBER:
Q I have one more question. Why did you hesitate so long before you made your report? Why didn't you make it immediately?
A I want to state clearly here that I have not denounced anybody; I have not made a report.
DR. NATH-SCHREIBER: I have no further questions to the witness.