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.
THE PRESIDENT: If you can produce her we will hear her and if you cannot we will not take any adjournment. The Tribunal desires very much to finish this case to day.
MR. LAFOLLETTE: I Understand that. I did not ask the Court to take an adjournment. I only ask if she comes late I may use her after the respondents started their case if that is agreeable. With that exception we rest.
DR. NATH SCHREIBER: May I call to the attention of the Tribunal that I also asked to have the nurse Frau Ernst appear here as a witness.
THE PRESIDENT: If she can be produced we will hear her. Does the Prosecution rest?
MR. LAFOLLETTE: Yes, Your Honor.
THE PRESIDENT: Call your first witness for the defense, the respondent?
DR. ORTH: With the permission of the Tribunal I call the attorney Dr. Link as a witness.
BY 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).
You may be seated.
BY DR. ORTH:
Q Witness please state your name?
A Heinrich Link, a married lawyer in Nuernberg. Thirty-five years old.
Q Are you an assistant to Dr. Marx in the Engert case?
A Yes.
Q When did you become Dr. Marx's assistant?
A During the last days of March 1947.
Q In what manner did your relationship with Dr. Marx develop?
AAs a Nuernberg colleague I knew Dr. Marx for several years and in accordance with this relationship of being an acquaintance and a colleague the cooperation in this case developed and on a basis if I may say so of mutual confidence.
Q Did you thus work on the entire Engert case always with Dr. Marx? Did you discuss it with him?
A Yes, I did.
Q You, therefore, know that the Tribunal ordered that medical expert opinions be given because Dr. Marx made an application for severing the case from the trial?
A Yes, I know that.
Q How did this application come about?
A I don't know.
MR. LAFOLLETTE: If your Honors please, I object for the reason that this evidence is repeated as it shows from the record of this Tribunal, the record speaks for itself and there is no need to go into this matter with this witness.
DR. ORTH: I did not say when and with whom did it come about but how did it come about.
THE PRESIDENT: We are not concerned with that. The Tribunal knows Dr. Link has been of counsel for the defendant Engert during the entire period to which he referred. How it came about is not pertinent to this inquiry. This inquiry must be limited to the charge against the two respondents.
BY DR. ORTH:
Q Since the Tribunal has made the ruling that medical expert opinions must be obtained what steps did Dr. Marx then take?
A May I ask you are referring to the application for the severing of the case?
THE PRESIDENT: We are not concerned with the application for severing the case. Counsel must understand that the application for severing the Engert case is not before the Tribunal on this contempt proceeding. Direct your questions to the matters which are relevant to the charge against your client and limit yourself to that field.
BY DR. ORTH:
Q What did Dr. Marx do after the ruling of the Tribunal?
A First Dr. Marx went with me to the American prison physician, Captain Martin, because we did not know with certainty which physician was to give this new expert opinion and because we wanted to ask this physician whether we should undertake anything because of the appointment of that physician. Dr. Martin told us that it was not necessary for us to do anything; that he had already given a new expert opinion himself and that the defendant Engert in the next few days would be transferred to the Garmisch Hospital and that would finish the case.
DR. LAFOLLETTE: Your Honor please, this obviously is covering a field long priors to the facts alleged in this --
THE PRESIDENT: The answer will be stricken and disregarded by the Tribunal. Counsel do you understand the ruling which the Tribunal has made?
Court No. III, Case No. 3.
DR. ORTH: Yes.
THE PRESIDENT: Will you follow it?
DR. ORTH: Yes.
THE PRESIDENT: You are directed to follow that ruling.
BY DR. ORTH:
Q What did Dr. Marx tell you about the appointment of Dr. Gerstacker as an expert?
AAfter this ruling by the Tribunal had been issued, that two German physicians should be named by the defense and two Americans by the Prosecution, Dr. Marx discussed with me what German physicians could be considered. We agreed that for the physiological expert opinion, the officiating chief physician-
THE PRESIDENT: Just a moment. The Tribunal has before it, in the record, the written stipulation entered into between the Prosecution and the counsel for the defendant Engert in which it is agreed as to who should be the physicians, American and German, for the purpose of making the physical examination. It is not necessary to go back of that stipulation. That stipulation is the basis on which the Tribunal made its order, and you may proceed from that point.
BY DR. ORTH:
Q What did Dr. Marx tell you about the discussion with Dr. Gerstacker on the 28th of June?
MR. LA FOLLETTE: To which I object, Your Honor. It is only evidence of his-- If he is talking about what Marx said, it is only evidence of Marx's impression of the conversation. I can't see how it is pertinent. If he wants to ask whether there was violent discussion, why he might ask it.
DR. ORTH: But is is very important. It is, after all, very important what Dr. Marx-
THE PRESIDENT: It is the ruling of the Tribunal that what Dr. Marx, after the conversation with Dr. Gerstacker, told the witness Link is not relevant to this case. Dr. Marx is here; he may tell us what the conversation with Dr. Gerstacker was, but we will not waste time by hear Court No. III, Case No. 3.ing what he told about that conversation to a third party witness.
BY DR. ORTH:
Q What course did the events of 10 July 1947 take after Dr. Marx had received the questionnaires?
AAfter Dr. Marx, as he told me, from Mr. Wartena, had been called-
MR. LA FOLLETTE: To which I object, Your Honor. This is absolutely pure hearsay. Dr. Marx may answer and respond himself. It is pure hearsay of this witness.
THE PRESIDENT: I don't understand what the question is at the moment.
MR. LA FOLLETTE: The question was, what happened after the 10th of July and what did Dr. Marx do after he got the Fragebogen?
THE PRESIDENT: Dr. Link, limit yourself to testimony as to your personal knowledge, if any, concerning the conduct of Dr. Marx with reference to his dealings with Dr. Gerstacker; what Dr. Marx told you is not admissible in evidence for the simple reason that he can tell us himself.
Do you know anything about the conversation between Marx and Gerstacker?
THE WITNESS: I was not a witness to that conversation. I do not know Dr. Gerstacker to this very day. However, immediately following the conversation, I did, through Dr. Marx, and then later also through Dr. Stem, hear about this discussion.
THE PRESIDENT: We don't want to know what you heard, as hearsay.
THE WITNESS: Yes. My own knowledge? That I also experienced it? I don't have that.
THE PRESIDENT: Then you need not testify concerning the matters that you don't know about.
BY DR. ORTH:
Q Witness, were you in the office of Dr. Marx, and were you present in his office on the 27th when he returned from Mr. Wartena's office?
Court No. III, Case No. 3.
A No, I was not.
Q When did you see Dr. Marx for the first time after that?
A I saw him the next day, or the day after that; but on the evening of the same day I spoke to him over the telephone.
Q Did Dr. Marx ever tell you that he wanted to get in touch with the physicians in order to achieve a change in their expert opinion?
MR. LA FOLLETTE: To which I object, Your Honor. Any statement that would be self-serving-
THE PRESIDENT: Well, we don't know whether the answer would be yes or no.
MR. LA FOLLETTE: I don't care, Your Honor, I don't think it is pertinent. It is what Dr. Marx might have told this man.
THE PRESIDENT: If he answers yes, it would be an admission against interest on the part of Dr. Marx.
MR. LA FOLLETTE: I agree with you. If he says no?
THE PRESIDENT: Then it is immaterial.
MR. LA FOLLETTE: Then it is a self-serving declaration.
THE PRESIDENT: He may answer.
THE WITNESS: After we heard that the German physicians had said that Engert was able to appear in the session, even if only to a limited extent, we both agreed that the worsening of the condition of his health which had occurred in the meantime, and which we had observed, would have to be pointed out. For that purpose, either myself or Dr. Marx, in our visits--as to Engert--wanted to talk with Dr. Kraetzer or with Dr. Stern, but not with Dr. Gerstacker, because Dr. Marx had expressly told me that he did not want to have anything to do with Dr. Gerstacker any more because during that discussion he had been so excited and belligerent and he had expressed himself so unacademically. He had described him as a stubbern Municher, if I may say that.
MR. LA FOLLETTE: If, Your Honor, please, I ask that this be stricken. It is not responsive to the questions. A simple question was asked of the witness, as a result of which we have had a long speech.
THE PRESIDENT: I understood the answer to have been "no".
Court No. III, Case No. 3.
We will take our recess until 1:30 this afternoon.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 29 July 1947)
THE MARSHAL: The Tribunal is again is session.
DR. ORTH: I ask to be permitted to continue my examination of Dr. Link.
DIRECT EXAMINATION - Continued BY DR. ORTH:
Q. Dr. Link, was Frau Huppertz secretary for Dr. Marx?
A. No. When I had to do with the defense of the defendant Engert I inquired after a certain time who the lady might be who also at times was in the offices of the defense and talked to Dr. Marx and other colleagues and I was told that she had been a witness or had been intended to be a witness in the case of a doctor who was defended by Dr. Marx and in the meantime since she spoke English rather well and had certain medical background she was just helping out, but she was not definitely employed. Again she was absent for days and for weeks and I didn't concern myself with that. I never dictated anything to her. I considered her a person with whom I had not to take up any contact.
Q. Was Mrs. Huppertz an assistant of Dr. Marx?
A. No, she was not that, either, because I would have to know about her. I know who his assistants are in the doctors' case or otherwise. Once I think he pondered the idea. I think it was upon Frau Huppertz' initiative, but I cannot ---
THE PRESIDENT: You have answered the question. Go ahead.
DR. ORTH: I have no further questions to the witness then.
THE PRESIDENT: Does counsel for the defendant Huppertz desire to examine this witness?
DR. NATH: No, Your Honor.
THE PRESIDENT: Mr. LaFollette, do you have any further questions?
MR. LA FOLLETTE: No questions.
THE PRESIDENT: The witness is excused.
DR. ORTH: I call as my next witness Miss Bleckschmidt.
ANNEMARIE BLECKSCHMIDT, a witness, took the stand and testifies as follows:
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 DR. ORTH:
Q. Witness, will you please give your name to the Court?
A. Annemarie Bleckschmidt.
Q. What is your profession?
A. I am not working; I am in the home.
Q. You were present, weren't you, when Dr. Stern called Dr. Marx and asked him to come to the hospital?
A. Yes. I heard the calls from seven o'clock in the evening when Dr. Stern called for the first time and called for Dr. Marx and I said that -
Q. Will you please speak a little slower?
A. Yes. I said that at half past eight he would come home and then he said, Dr. Stern said he had to speak to him immediately, it was very urgent and where he could get in touch with him at the time, and I said that he was probably in the Palace of Justice, he should call there and ask for the number of the room where he was. And then he probably called the Palace of Justice -
THE PRESIDENT: Just a moment. Just limit yourself to telling what you know about it yourself.
THE WITNESS: I personally only know of the telephone calls. Then he called me and wasn't able to get Dr. Marx' telephone number.
He called again at halfpast eight, whether he had returned, and I said, no, he hadn't. He asked again whether he could call after 10:30 and whether he then would find him at home.
BY DR. ORTH:
Q. Did Dr. Stern talk to Dr. Marx that same evening?
A. Yes.
Q. Were you present?
A. Yes.
Q. During that conversation did Dr. Marx say that he did not want to go to the hospital to Dr. Gerstacker?
A. Yes. I was next to the telephone. I had been sitting next to the telephone when Dr. Stern at 10:30 called Dr. Marx. Dr. Stern urged Dr. Marx ---
THE PRESIDENT: Now just a moment. Rill you please tell us first did you hear both parties to the telephone conversation? In other words, were you listening in on the wire?
THE WITNESS: Unfortunately, I did not, because we have no second earphone. I can only confirm the answers which Dr. Marx had given, because I could only assume from these answers why Dr. Stern --
THE PRESIDENT: You don't need to assume. You may tell what you heard Dr. Marx say.
THE WITNESS: Yes. Dr. Marx always answered: Dr. Stern, but that is bad that this matter was mixed up as it was, since it is so urgent and you yourself wanted to deal with the matter, and it is quite impossible for me to go to the hospital myself tomorrow morning because early in the morning I have to interview my two clients in the Palace of Justice and I have to go there. Dr. Stern continued, apparently, to insist -
THE PRESIDENT: You don't need to tell what Dr. Stern apparently continued to do. Limit yourself strictly to what I have instructed you.