Court No. III, Case No. 3.
THE PRESIDENT: Is there any redirect examination
MR. LA FOLLETTE: No redirect.
THE PRESIDENT: The witness is excused.
(Witness excused)
MR. LA FOLLETTE: Please call Dr. Stern.
Court No. III, Case No. 3.
DR. PETER STERN; a witness, took the stand and testified as follows:
MR. LA FOLLETTE: Doctor, do you care to testify in German or in English?
THE WITNESS: In German.
JUDGE BLAIR: Hold up your right hand and repeat after me the following oath:
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 BLAIR: You may be seated.
DIRECT EXAMINATION BY MR. LA FOLLETTE:
Q You will state your name please and your profession and where you are presently employed.
A I am Dr. of Medicine Peter Stern, at present at the City Hospital where I am working as assistant physician, and at the same time I am medical consultant in the language division in the Palace of Justice here.
Q Do you know Dr. Gerstacker and Dr. Marx?
A Yes, I do.
Q Were you present at a conversation in the Nuremberg City Hospital on the 28th of June 1947 between Dr. Gerstacker and Dr. Marx?
A Yes.
Q I ask you whether or not you heard anything in that conversation with reference to the position of the defendant Karl Engert in this Tribunal, whether or not any one wished to have the case dropped or anything upon that subject in that conversation, and if so by whom it was said.
A I can recall that Dr. Marx not only during that particular conversation but also before expressed to me the opinion that the Engert case was a comparatively unimportant one and that he had gained the impression that the Tribunal was looking for a reason which would enable it Court No. III, Case No. 3.to sever it from the trial.
Q Was that statement made to Dr. Gerstacker in this conversation that you were at?
A Yes.
Q Do you have any reason why you can particularly remember that statement by Dr. Marx? Is there anything that aids your memory?
A The problem was that the expert opinion had to be given very quickly and that Dr. Gerstacker, the chief physician, stated that according to German law he would have six weeks in order to give a psychiatric expert opinion. Thereupon Dr. Marx stated that in this case we were not concerned with an expert opinion of the nature that was necessary formerly under German law, but that this was merely a matter of form, so to speak, and that this had to be expedited.
Q Had Dr. Marx prior to the 28th of June ever made any statement similar to that to you?
A From several conversations I had gained the impression that this was the case.
Q Conversations with Dr. Marx?
A Yes.
Q Now then I ask you whether or not on July 17, 1947, in the evening you received a call from Dr. Marx and where you received it.
A Yes, I did. On the 17th of June.
Q 17th of June. Excuse me. I beg your pardon.
A This telephone call I received from Dr. Marx at my home.
Q What was the substance of that conversation, or what did Dr. Marx say, as well as you can remember.
A Yes, I remember. Dr. Marx said approximately the following, that his assistant, Dr. Link had informed him that the state of health of the defendant Engert who is a patient in my ward, had worsened considerably, and that for that reason he considered it necessary to inform the court about the changed state of health. Thereupon I told him that an intermediate expert opinion by a physician could be given for that purpose, however only upon written request by the Military Tribunal.
Court No. III, Case No. 3.
Q Do you know Dr. of Medicine Otto Duerbeck?
A Yes, he is working in my ward at the hospital.
Q I will ask you just the fact, not the subject of the conversation, but ask you, do you know whether Dr. Otto Duerbeck on the 18th of July 1947 received a telephone call from Dr. Marx.
A Yes, he informed me about the fact.
MR. LA FOLLETTE: That is all.
THE PRESIDENT: You may cross-examine.
CROSS-EXAMINATION BY DR. ORTH:
Q Dr. Stern, did Dr. Marx ask you about the appointment of an expert?
A Yes.
Q What suggestion did you make to him?
A I suggested to him to appoint my immediate superior, Frau Dr. Kraetzer, as clinical expert, medical expert, and the consulting physician of the psychiatric clinic for internal diseases, chief physician Dr. Gerstacker, for the psychiatric part of the expert opinion.
Q In so doing did you declare yourself to be ready to Dr. Marx to undertake informing Dr. Gerstacker about it?
A Yes.
Q Did you inform him?
A I informed Frau Dr. Kraetzer about this affair and she in turn informed her colleague.
Q Do you know whether and when Dr. Kraetzer informed Dr. Gerstacker?
MR. LA FOLLETTE: If Your Honor please, none of this was touched on direct examination. If we can save time and fix these dates and the witness is the defense witness, I shall not object, but this is supposed to be cross-examination. I suggest this is clearly outside the sphere of the direct examination.
THE PRESIDENT: Doctor, do you know when Dr. Kraetzer notified Dr. Gerstacker of the appointment? Do you know what date it was?
Court No. III, Case No. 3.
THE WITNESS: Yes.
THE PRESIDENT: What was it?
THE WITNESS: It was on Friday, the day when the expert opinion was made about five o'clock, seventeen o'clock.
BY DR. ORTH:
Q On that Friday evening you repeatedly called Dr. Marx in his apartment by telephone. For what reason did you do that?
AAt fourteen o'clock the American physicians, Brody and Carpenter, appeared and brought along the ruling of the Court concerning the expert opinion and stated that the Secretary General, Col. Millard, had given them the commission to give an expert opinion by twelve o'clock the following day, that was Saturday. Since I knew that the time limit was too short, I called up Col. Millard and asked him to extend the time limit.
Q That, however, is no reason to call up Dr. Marx. I am interested in knowing why you called Dr. Marx.
A On the 17th?
Q On the evening in his partment, repeatedly.
A Oh, yes, I beg your pardon. I just confused it at the moment. Dr. Gerstacker called me up in order to tell me that he intended not to give an expert opinion because he had not been informed about the nature of things in an orderly way. I thereupon called Dr. Marx in his apartment in order to inform him about this, so that on the next day on Saturday in the morning he should personally go to Chief Physician Gerstacker in order to out things straight.
Q You just said that Dr. Gerstacker received the request to give an expert opinion from an American office.
A Yes.
Q How could Dr. Marx then be in a position to influence Dr. Gerstacker if the order by the American office was there?
MR. LA FOLLETTE: I object, Your Honor. That doesn't touch any part of the direct examination. The question in its form constitutes an argument with the witness.
Court No. III, Case No. 3.
DR. ORTH: Your Honor, we also asked to have the witness appear as our witness, as defense witness. If I could not during cross-examination -
THE PRESIDENT: You may combine cross-examination and direct examination. In fact, you will be required to do so.
DR. ORTH: Yes.
THE PRESIDENT: Will you restate your question please? Restate your question.
BY DR. ORTH:
Q You knew that the Tribunal had ordered Dr. Gerstacker to give an expert opinion and you also knew, in view of your connection with the Tribunal, that this order had to be carried out. Why did you then turn to Dr. Marx when Dr. Gerstacker wanted to refuse to give an expert opinion?
A Because Dr. Gerstacker was of the opinion that the defense counsel could inform him about the entire state of affairs and because Dr. Gerstacker was of the opinion that the expert opinion had to be carried out at the instigation of the defense counsel.
Q Did Dr. Gerstacker also make Dr. Marx responsible for the short time limit given for the making of the expert opinion?
A I believe so, yes.
Q Then on the 28 of June Dr. Marx came to the hospital to you?
A Yes.
Q Will you please briefly describe the contact of the conversation which you had with Dr. Marx and Dr. Gerstacker?
A I accompanied Dr. Marx to Dro. Gerstacker and introduced the two gentleman to each other. I excused myself for Dr. Kraetzer, that he had not been informed quickly enough, and Dr. Gerstacker thereupon said that was unimportant because he considered it a duty of decency that in such an important matter Dr. Marx would come to him.
During the entire conversation Dr. Marx tried to make the whole affair seem trifling. Dr. Gerstacker, therefore, became somewhat excited since he was used always to give an objective and extensive expert opinion, whereas Dr. Marx stated again and again that under American law matters were different, that Americans anyhow had very little interest in the whole affair and that, therefore, such an extensive expert opinion was not necessary.
Q Did Dr. Marx, during that discussion, not point out that he was mainly interested in the physical expert opinion and that the psychiatric expert opinion was, in his opinion, of lesser importance?
A It is correct that he attached more importance to the expert opinion on the physical state of health. Nevertheless, he stated repeatedly that for him, as a lawyer, it was very difficult to negotiate with a person whose memory was bad and whose mind worked very slowly.
Q Did Dr. Marx state that the Americans would like to exclude Dr. Engert from the trial and what was his exact remark?
A I can no longer recall the exact wording of his remark but the meaning of it was that the Americans, as I have already stated, were little interested in the presence of Engert in the trial and would like to find a reason in order to sever him from the trial.
Q You stated that Dr. Marx had already, before that, made similar statements to you?
A Yes.
Q Did you have the impression that these statements were made in order to influence you and your medical opinion about the condition of Engert?
A This question is peculiar because I was not being considered as an expert and I had nothing to do with that at all. My attitude toward Engert is merely based on the relationship of physician and patient and has nothing to do with this affair before the Tribunal.
Q Did Dr. Marx, in the discussion with Dr. Gerstacker, not tell Dr. Gerstacker expressly that it was up to him to refuse the giving of an expert opinion if the time limit was too short to give such an expert opinion?
A I can remember that but I believe that he added that that would be connected with unpleasantness for him.
THE PRESIDENT: I think this may be an appropriate time to call attention to the parties on both sides to the fact that the order appointing the American and German physicians is in writing; that is is based on a stipulation of both parties; and that the order contains absolutely no provision whatsoever, as to the time within which the medical report was to be made. The transcript will bear out the statement which I have just made. Go ahead.
BY DR,. ORTH:
Q Who had set the time limit for this expert opinion?
A I can remember that on the document the fourth of June was mentioned. I mean July, excuse me.
Q Where did the document originated?
A The document was made out as an order of the court by the Court, as far as I remember.
THE PRESIDENT: The stipulation which is before me, provides that the parties agreed that a report should be made on or about the third July 1947. The order of the Court is separate from the stipulation and makes no mention whatever of the date on which the report was to be made.
BY DR. ORTH:
Q Did Dr. Marx, when he spoke about the fact that the defendant Engert was to be taken out of the trial, express, in so saying, that the case against him should be severed from the rest of the trial or that the whole case against Engert would be dropped?
MR. LAFOLLETTE: Your Honor, I can't see that that has anything to do with either direct or cross examination.
THE PRESIDENT: He may answer. Did he use the word "severe" or "dismissed?"
THE WITNESS: The expression was "sever", but I personally am not informed about legal questions and I believe that to sever it means the same as to drop it.
THE PRESIDENT: The witness is correct. Ask your next question.
BY DR. ORTH:
Q Between the giving of the expert opinion and the filling in of the questionnaires was Dr. Engert again examined by a physician.
A I personally examined Engert every morning and every evening.
Q Did Dr. Gerstacker again examine Engert?
A No. There was no reason to do so.
Q What is the present condition of the defendant Engert?
THE PRESIDENT: We will not go into the present condition of the defendant Engert. This Tribunal is not now determining whether Engert may be tried or not. We are determining only the question as to whether improper influence was used, as I have before stated. The Tribunal will consider the condition of Engert at the proper time.
BY DR. ORTH:
Q In your affidavit you said that the behavior of Dr. Marx and his telephone call in July made you angry. When did you become angry at him?
AAfter the incident between Dr. Gestacker and Dr. Marx after I had listened to it - I saw Dr. Marx' behavior in a different light, and accordingly I was very angry about his behavior, especially because in the telephone conversation he mentioned that his assistant, Dr. link, had told him that the patient's condition was continually getting worse and, therefore, something had to be done. Since, as ward physician, I am very well informed about the sphere of my activity, I considered it rather like assuming that non-physician made such statements.
DR. ORTH: I have no further questions.
THE PRESIDENT: There appears to be no further cross examination or direct examination of this witness.
MR. LAFOLLETTE: I would like to ask one question of the witness now, your Honor.
THE PRESIDENT: You may do so. I understand that the other counsel does not desire to cross examine? You have no cross examination?
DR. NATH: No.
THE PRESIDENT: Counsel for the respondent Huppertz does not desire to cross examine. You may ask your question, Mr. Lafollette.
REDIRECT EXAMINATION BY MR. LAFOLLETTE:
Q Dr. Stern, I hand you the chart of Dr. Engert.
THE PRESIDENT: Is counsel about to go into the matter that the Court has just ruled was immaterial at this time?
MR. LAFOLLETTE: No, counsel is not, your Honor.
THE PRESIDENT: Very well.
MR. LAFOLLETTE: Counsel will state that there has been evidence here that the reason that Dr. Marx was so excited was that on the 10 of July this witness' condition had changed materially. I want to ask the witness a question on that subject.
BY MR. LAFOLLETTE:
Q I ask you whether or not, if there was any material change in the physical condition of Dr. Engert, I did not occur after the 10 of July 1947? That is the only question I want to ask you.
A I can answer this question to the effect that Engert's condition from about the 15th to the 16th worsened by the hypertrophy of the prostata, causing him more complaints, and the chronic gall-bladder inflammation again occurred and the patient ran a temperature.
THE PRESIDENT: We are not concerned with his condition at that period.
MR. LAFOLLETTE: That is all.
THE PRESIDENT: The witness is excused.
MR. LAFOLLETE: I call Dr. Duerbeck
THE PRESIDENT: Will this witness testify in German?
THE MARSHALL: Yes, the witness will testify in German.
Dr. Otto Duerbeck, a witness, took the stand and testified as follows:
BY JUDGE HARDING:
Q: Will you repeat this oath 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.
DIRECT EXAMINATION BY MR. LAFALLOTTE:
Q: Doctor, you will state your name, your profession and your present position?
A: Dr. Otto Duerbeck, physician at the city hospital in Nurnberg.
Q: Doctor, do you bear any professional relationship to Dr. Stern, who has just testified?
A: Yes.
Q: What is that?
A: Dr. Stern is ward physician and I am the guest physician on the same ward.
Q: I will ask you whether or not on 18 July 1947 in the morning you received a call from Dr. Marx, attorney for Karl Engert?
A: Whether it was the 18th, I can no longer state with certainty. I estimate that it was seven to ten days ago when Dr. Marx called me on the telephone.
Q: What did he say to you?
A: He told me that I should ask Dr. Stern to make a medical intermediate report about the patient Engert, who was in our ward and that the Americans desired to have this report.
Thereupon I replied that Dr. Stern as far as I knew kept the court, via Dr. Martin at the dispensary, informed anyhow. Thereupon Dr. Marx told me that he had appointed the German physicians as expert witnesses and therefore he had to report this commission to us. He had to forward this request to us that this intermediate report was to be sent to Dr. Marx via the Secretary General of Military Tribunal III.
Q: Did you report the facts of the conversation to Dr. Stern that day?
A: Yes on the same day.
Q: That is all.
THE PRESIDENT: Is there any cross examination?
Counsel for both respondents have indicated there is no Cross Examination. The witness is excused.
MR. LAFALLOTTE: The prosecution calls Ruth Wieber. Where is she?
Your Honors, please. While the marshal is looking for this witness and she should be obtained any minute, she was just here. I assume the court will take judicial notice of its own records with the official proceedings relating to this court. If it will be of any assistance to the court or the record, I will call the court's attention to the pages of the record and the dates where these matters appear, if the Tribunal desires.
THE PRESIDENT: The Tribunal will take judicial notice of the record of this Tribunal itself as appears in the daily transcript.
MR. LAFOLLETTE: Yes sir.
THE PRESIDENT: ... And we have already taken notice of the dates of the various events.
MR. LAFALLOTTE: I assume so. The witness is here. Ruth Wieber, a witness, took the stand and testified as as follows:
BY THE PRESIDENT:
Q: Will you repeat this oath 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.).
THE PRESIDENT: You may be seated.
DIRECT EXAMINATION.
BY MR. LAFALLOTTE:
Q: Will you state your name to the Tribunal and where you are employed?
A: My name is Ruth Wieber. Since the beginning of June I have been a secretary to Dr. Marx.
Q: Do you recall the occasion in the afternoon of approximately 9 July when Dr. Marx came into his office with the ......
A: Yes, I remember.
Q: Do you remember that when he came in he had with him the medical reports of Dr. Kraetzer and Dr. Gerstacker the answers to three questions?
A: No, I cannot recall that because I was very busy on that day and only heard Dr. Marx speak in part.
Q: What was it please?
A: I heard approximately what Dr. Marx said that the German physicians apparently testified differently than the American physicians and he was very angry about this and he said something like: "The German physicians are probably more holy than the Pope.
I shall appear before the Tribunal and tell them that I can do without the German's expert opinions. I am satisfied with the Americans."
Q: If you please, now with reference to that conversation, when was it that Dr. Marx directed you to retype the first pages of Dr. Gerstacker's report?
A: No, this is not how I was given the order.
Q: How were you given the order?
A: I was sitting at my typewriter and Dr. Marx was standing at my left, I believe at the big table, and said so in passing that I should more or less please copy the questionnaire.
Q: And you did?
A: Yes, I did.
Q: That is all.
A: Yes.
BY THE PRESIDENT:
Q: One more question, witness.
A: Yes.
Q: Did you have in your possession the questionnaire when you were copying it?
A: No, it was put on my table.
Q: Well, you saw it and copied it?
A: Yes, I copied it.
Q: Were the two pages fastened together at that time?
A: Yes, they were fastened together.
Q: Did you separate them?
A: Yes, I did that myself.
Q: That is all. Who told you to separate them?
A: Nobody, I did that on my own.
Q: That is all.
CROSS EXAMINATION.
BY DR. ORTH:
Q: Witness, did you before you worked for Dr. Marx ever at any time work for a court or in a lawyer's office?
A: No, I never had anything to do with legal matters before.
Q: Did Dr. Marx give to you the order to copy the the questionnaire?
A: Yes.
Q: In to to, or did he give you the order only to copy one page?
A: No, I understood the order to be that it referred to the entire questionnaire.
Q: Why did you separate the two questionnaires?
A: All I have to say about that is that from Dr. Marx's report, well that my reaction b the report of Dr. Marx was approximately the following: that one would have to go again and attempt to ask whether the German physicians after a renewed examination would not reach a different conclusion. Therefore, I did not even make sure by an inquiry to Dr. Marx whether it was a copy, with the usual meaning of the word with "copy" made on the top of it or whether I should copy the questionnaire in such a way that I left out the answers.
Q: Thus, you separated the questionnaire?
A: I did not understand the question.
Q: You thus separate the questionnaire without having an order from Dr. Marx?
A: Yes, without an order.
Q: I have no further questions.
THE PRESIDENT: And you left out the answers in the copy which you made; did you not?
THE WITNESS: Yes, I left them out.
BY DR. NATH-SCHEIBER:
Q: Frau Wieber, do you recall that on the very day when you, in the evening, were supposed to copy these questionnaires, on the morning of the day Dr. Marx entered the room of the Secretary's where you and the defendant Huppertz were also sitting and said: "I am just coming from Engert. His state of health has worsened considerably and I also told this to Dr. Kraetzer and she replied: "You observed, very well, Dr. Marx:" is that corrects?
MR. LAFALLOTTE: If Your Honors please, if this is cross-examination it is not pertinent, if it is direct examination, it is very leading question. I object to it.
DR. NATH-SCHREIBER: May I call to the attention of the Tribunal that I have also requested to examine the witness Frau Wieber as a defense witness.
THE PRESIDENT: She may answer your question.
BY DR. NATH-SCHREIBER:
Q: Please answer the question.
A: I did not hear anything about all these matters.
Q That was in the morning?
A Yes, the first thing I noticed about this whole incident was this remark by Dr. Marx in the evening.
Q I believe you are mistaken as to the time.
THE PRESIDENT: You needn't coach your witness.
Take her answer.
BY DR. NATH SCHREIBER:
Q Now Frau Wieber I am interested in the following question. You have already reported that Dr. Marx on that evening had entered the room and had said approximately the following: "Well the German physicians were more Holy than the Pope. I shall bring this up for discussion before the Court tomorrow." Did the Respondent Huppertz answer anything?
A Yes.
Q What did she answer:
A I heard the answer. I believe she got up and said: "Dr. Marx you cannot lower the German physicians before the Tribunal in which on the other hand you arc defending German physicians."
Q And what was Dr. Marx's reply to that?
A He said if I remember correctly, he said approximately; "I am satisfied with the expert opinion of the Americans. I shall do without the German opinion, and I shall tell my opinion to the Court."
Q I have a further question. Did Dr. Marx say in addition: "Well I would just like to speak to Dr. Kraetzer as to whether today according to the latest condition of the patient she would not have to revise her expert opinion."
A No I did not hear that remark.
Q You did not hear it?
A No.
Q Frau Wieber, may I ask you, are you hard of hearing?
A Yes, I am.
Q Please explain to the Tribunal what kind of a disease of the scars you have?
A I am hearing with artificial non visible ear drums.
Q May I ask you what is the technical arrangement for this. Please excuse me for asking this but it is important.
AAs far as I know this is possible only with persons who in view of the forming of pus for years the natural ear drum has been destroyed.
Q Do you put on this artificial ear drum in the morning?
A Yes.
Q In both cars?
A Yes, I put it in both ears.
Q On that day did you have both of these artificial ear drums in both ears?
A No, that is just the thing. I didn't have it in the left ear. On the 6th of July I went on a trip and since I was subject to a draft because the windows were open.--
THE PRESIDENT: We will not go into the matter.
BY DR. NATH SCHREIBER:
Q I only want to ask the following: How were you sitting in the room? That is to say Dr. Marx - will you please look at me? Dr. Marx was standing here and where were you sitting?
A I was sitting between him and the window so that my left ear was turned to him.
Q The left ear to him?
A Yes.
Q All right
THE PRESIDENT: Just a moment, please. We will take about two minutes in which time the film will be changed in the other room.
Just postpone your examination until we indicate that the mechanical device is ready for operation.
The Tribunal has assumed that these witnesses after being on the stand have been examined and their examination completed both by the prosecution and by the respondents. Is there any objection to the Tribunal releasing them, Dr. Orth?
DR. ORTH: No, Your Honor.
THE PRESIDENT: You consent that they may be released. The witnesses who have been examined are excused from further attendance.
You may proceed with the cross examination.
BY DR. NATH SCHREIBER:
Q Witness, did the defendant Huppertz on that particular evening give an order to separate the original questionnaire and to copy only the first page?
A No, she did not. This happened purely on my own initiative.
Q Witness, did you on that evening hear that Dr. Marx gave Huppertz an order to go to Dr. Kraetzer with a questionnaire?
A No, I did not hear that.
Q During that conversation was the name of Dr. Gerstacker mentioned at all?
A No, I did not hear anything about it.
DR. NATH SCHREIBER: I have no further questions of this witness.
THE PRESIDENT Are both parties through with the witness?
MR. LAFOLLETTE: I am through with the witness.
THE PRESIDENT: The witness may be excused.
Call your next witness.
MR. LAFOLLETTE: The next witness, is she here?
The next witness for the Prosecution, Your Honor, is Frau Ernst, who is the nurse at the hospital. She was out of town when the request for her was issued and I have been advised she would be here by noon and I will state to the Court I need her only to confirm the conversation between Dr. Gerstacker and Frau Huppertz.