THE WITNESS: Yes. Dr. Marx from 10:30 to 11:00 talked to Dr. Stern, and in doing so explained to him three times that it is was quite impossible for him to go to the hospital the next morning and that Dr. Stern himself should try to straighten out the matter, since he had taken it upon himself to do so.
BY DR. ORTH:
Q. Did Dr. Marx finally agree to come to the hospital?
A. Yes.
Q. Shortly before eleven o'clock, shortly before the end of the conversation Dr. Marx said, all right, then tomorrow morning even before I go to the Palace of Justice I will go briefly to the hospital and will talk to Dr. Gerstacker.
DR. ORTH: I have no further questions to this witness.
THE PRESIDENT: Any cross examination? The witness is excused. Call your next witness.
Order will be maintained in the courtroom or the courtroom will be cleared.
DR. ORTH: I call as my next witness Dr. Marx to the witness box.
DR. HANS MARX, * 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 Onmiscient, 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 DR. ORTH:
Q. Dr. Marx, when did you take over the defense of the defendant Engert?
A. I cannot tell you the exact time right now, it may have been in January of 1947.
Q. Then, in the course of the trial, did you file the petition for the court; did you file that petition?
A. That petition was filed on 7 June 1947.
Q. Why?
A. The petition was filed on the basis of the observations made by my assistant Dr. Link and also on the basis of my own observations, as well as on the basis of the statements made to us by the physicians, telling the defendant Engert's condition did not improve and because possibility did not exist for the defense counsel to gain any basis for the defense from Engert himself.
Q. What caused you to nominate Dr. Gerstacker for the expert opinion, which was ordered to be obtained by the court?
A. I first had in mind the director of the University Neurological Clinic at Erlangen.
THE PRESIDENT: Just answer the question as to how you came to select him, it is not material, but I will permit you as one of the respondents to explain how you entered into a stipulation or an agreement for the appointment of the doctors.
THE WITNESS: Yes, yes.
THE PRESIDENT: That is all that is necessary.
BY DR. ORTH:
Q. What made you nominate Dr. Gerstacker?
A. Originally Dr. Gerstacker's name was quite unknown to me. On the occasion of a visit to the hospital, I met Dr. Stern and remarked to him that I needed a psychiatrist as an expert and he said he was well acquainted with the chief doctor, Dr. Gerstacker, who for a long time had made out expert opinions in the neurological department, that he would speak to that man and would notify him and I myself did no longer have to bother about it.
Q. On the 27th of June when you came home in the evening, Dr. Stern called you up; what did he tell you?
A. It was in the evening of 27 June at about 10:30, after I had been informed that three times before Dr. Stern had asked for me very urgently over the telephone, I thought nothing else about that something quite extraordinary had happened. Dr. Stern then reached me at that time on the telephone and stated to me immediately: "Dr. Marx, I am in a rather disgraceful situation, I forgot to notify Dr. Gerstacker that he had been designated at the expert, also Dr. Kraetzer, whom I asked to do so, failed to notify Dr. Gerstacker of that assignment." I answered: "Dr. Stern, that is a very disagreeable matter, I cannot really understand it that a thing like that should happen." Dr. Stern said then: "Dr. Marx, you have to come to the hospital, it is very urgent that you straighten this matter out." Thereupon, I answered: "That is quite out of the question, I have no time. Tomorrow considerable time before nine o'clock I have to be in the court house, because I have scheduled my two clients, the doctors, for an interview." However, Dr. Stern insisted most urgently by pointed out time and again that I myself had to straighten out the matter, whereas, I said that it was really his business to do so. Finally, I gave in to Dr. Stern's insistent demands and I decided the next morning, the 28th to go to the hospital.
Q. At the hospital you met Dr. Gerstacker. Would you please describe briefly that conversation and what you talked about?
A. Shortly after I arrived in the hospital, I met, in the part of the building where Engert is, Dr. Stern. Dr. Stern immediately offered to show me into the part of the building where Dr. Gerstacker worked.
Dr. Gerstacker was just making his morning visits to his patients. Dr. Stern approached him and told him that the defense counsel for Engert had come in order to explain something to him. Then Dr. Gerstacker stepped over to me, he did not invite me in any way to sit down and started the conversation in a definitely unfriendly manner. He immediately started to reproach me to the effect: "I am the chief physician, I have made out many expert opinions, but never before did anything like this occur to me. I was not even told that I was at all to render a medical opinion. I have a slip of paper here which is not even signed and only represents a copy of something or other."
I asked him whether he had taken pains at all to read that letter or whether he knew what the date was on that letter and what its contents were. I said I had only come to explain to him why he had not been informed in time of the fact that he was expected to be consulted as an expert. Dr. Gerstacker did not comment on that at all, but he continued to complain that he had not received any files such as he was used to and that the letter did not contain any details, any specific instructions whereas in German procedure specific points are usually listed. That caused me to tell him: "No, Dr. Gerstacker, you cannot apply the standards here of German procedure where you would have received all the details about evidence and the files and other specifications. Here you are confronted with an American Military Tribunal procedure. Moreover, I am of the opinion that it is here not a question of such an extensive psychiatric opinion as we are accustomed to in detail with German courts, with an extraordinary, extended case history, etc., but here the problem is to explain your impressions about the psychiatric condition of Engert and his capacity to take part in his defense, to clarify that and to offer your opinion as an expert." Moreover, in my opinion the essential thing was not really the psychiatric part of the case, because I did not believe that Engert could really depend on paragraph 51 being applied to him. I was of the opinion that the main weight was on the side of the physical condition of the patient, also that there was a certain inference exerted by his physical condition on his mental condition.
According to my knowledge, there were available already two American expert opinions, which as far as the physical condition was concerned, stated Engert was not capable of attending the trial.
Dr. Gerstacker got more and more excited. His attitude and behavior toward me was such as I had never experienced in my more than 35 years of practice as an attorney. One could clearly notice that Dr. Gerstacker felt insulted in his position as a chief physician and that he made me responsible for anything in this matter which seemed inexplicable to him. He expressed that it was my fault that he was not informed that he had been nominated. He said the letter that Dr. Krzetser had received had emanated from me or was caused by me. Consequently, he criticized the tone of the letter. Also he thought it was my fault that such a short time was given for the rendering of my expert opinion. And even in that he saw an intrigue on my part designed to force him to make rash decisions.
The behavior of Dr. Gerstacker finally made me tell him, "Now, chief Doctor, it is up to you either to refuse to render that expert opinion altogether or to ask that the time limit be extended." And he was not quite ready to do the first.
Now, as far as that was concerned, the conversation came to an end and we left in a somewhat charged atmosphere. And I have to state here that Dr. Gerstacker, as for his hostility and his attitude toward me, did not fail to express that by his tone and his behavior, whereas, I made great efforts to hold on to myself, although I was greatly excited and that excitement, of course, was increased by the attitude on the part of Dr. Gerstacker.
Q. Dr. Marx, in the course of the negotiations did you explain to Dr. Gerstacker that you had gained the impression that the Americans, with the aid of medical experts, wanted to drop the case Engert?
A. After examining my recollection very carefully, and after trying to reconstruct that conversation as carefully as possible, I cannot remember any remark of that kind made on my part. I want to state with full emphasis that the purpose of my contact was only to clarify matters, and the ultra-severe attitude of Dr. Gerstacker, which he displayed toward me from the very outset, made impossible any personal contact with that man.
It would have been definitely absurd on my part if, in recognition of the irritated state of mind of that man, I would have come to the thought to influence that man in favor of Engert.
Q. Dr. Marx, isn't it possible that, although you did not have the intention to influence the expert, without any such intention in the course of the conversation, you may have said something similar to the witness?
A. Dr. Stem and Dr. Gerstacker gave a talk once about the Americans, then about the Court and then about the Gerichtshof, the Tribunal. I, myself, never used that expression, Gerichtshof, Tribunal; and the expression Gericht Court was never mentioned during that entire conversation because there was no cause for that. I only mentioned that two expert opinions had been submitted by two official American doctors who considered the physical condition of Engert such that it made it impossible to bring him into the courtroom, and that may have led to that erroneous interpretation.
It was known to me, of course, that the Prosecution was strongly opposed to my petition and, as for the Bench, it was known to me that the expert opinions submitted by American doctors did not give cause to the judges to pronounce a decision, but that the judges considered it necessary to have a further expert opinion on a more entended bases in order to be able to form a definite decision.
Q. Is it possible that you have spoken, in the course of the conversation, about the severing of the case?
A. That could be possible. I consider it possibly certain that I mentioned such a petition, but in this connection I would like to state that in my opinion Dr. Stern was previously informed of that because he was all the time in contact with 1st Lt. Martin and for that reason alone is informed about the entire course of the trial, not only from the medical point of view.
Q. Dr. Marx, you brought the second questionnaire to your office. Would you please tell us what statements you made in your office?
A. Well, isn't it necessary first to discuss what happened before?
Q. Please answer my question.
A. May I ask you to repeat the question?
Q. You received the questionnaire later with the questions and brought it into your office. What did you say when you did so?
A. I was very angry and overworked because I had just finished dictating my plea in the case of Professor Schroeder. From the preceding conversation I could see how the German doctors had answered the questionnaire, and since I was aware of the fact that American expert opinions had been submitted to the contrary. How the questionnaire was answered by the American doctors, I never saw myself.
For these reasons I thought, how can the German doctors possibly answer all these questions in the affirmative since we frequently had, Dr. Link and myself heard different opinions, and since, according to our observations, the condition of the patient has not improved but deteriorated?
Of course, I had gained a certain impression from the preceding conference and I drew a conclusion that there was some reason for that difference. That led me to make the following statement: Is it so that the Germans are again more holy than the Pope? That really tops everything. And particularly I can't understand how anyone can answer the question No. 2 in the affirmative if one answers question No. 1 also in the affirmative without any reservation? That really would only tend to deceive the Court.
I further said: "Now I have an idea. I will step up before the Court and I will say, assuming that the American experts have answered the question as to whether Engert can stand trial in the negative, I will say that I consider these American expert opinions sufficient together with the fact that the German doctors answered question No. 2 in the affirmative, in order to have a sufficient basis for the decision to be made by the Court, concerning a severance of the case, I am going to say that I prefer the expert opinions made by the Americans to those prepared by the Germans because I consider the American expert opinions as unbiased and uninfluenced by any side.
Q: Did you give Frau Huppertz the order to go to the Hospital and talk to Dr. Karetzer and Dr. Gerstacker?
A: Excuse me, counsel. Something occurred before that. Then I really didn't want to have anything to do with the whole matter any more. I was busy with other things. But since I had been handed the questionnaire for the express purpose to copy them for my files, I told Mrs. Wieber to prepare copies of these questionnaires. Then I did not bother with the whole affair, that is to say to the extent that I devoted myself entirely to dictating my plea. Upon my remark that I would give preference to the expert opinions made by the Americans over the expert opinions rendered by the Germans, Frau Huppertz jumped up from her chair to her full height and told me: "But, Dr. Marx, now if you are defending German doctors before an American Military Tribunal you cannot step before another Military Tribunal and degrade the German doctors in comparison to American doctors." I was quite surprised about that momentary interruption, and I said, I believe, to Frau Huppertz:
"What came upon you to interfere with my affairs?" I may have made the remark also to the effect that I would really like to go to the hospital that night to ask Frau Dr. Kraetzer whether or not the condition of Engert in the meantime has changed for the worse because it was known to me that Dr. Kraetzer immediately afterwards was just about to go on a vacation. Unfortunately I did not stick to that idea and I said, I think it was after seven o'clock at that time already and tonight it would be too late, then I still had to go to see my client and that I would go tomorrow. My intention, however, in this connection was not -- and I don't think anybody would expect me to be so foolish - was not to go and ask Dr. Kraetzer now that she should make out a different questionnaire, but what I wanted to do was merely to ask whether the condition of Engert since the time when the last examination was made which formed the basis for the expert opinion, might or might not have deteriorated in the meantime, but I did not go out to the hospital neither on the same evening nor the next morning, but on the very same night I called Frau Dr. Kraetzer and inquired as to the condition of Engert. I believe I can remember almost with certainty that I said that it is possible that somebody might come who wanted to talk with her but that was no necessary, it was very superfluous and I think that may have been the reason that when Frau Huppertz the next morning went to the hospital in order to talk to the doctors, that this female doctor was not ready to listen to her.
Q: Witness, you mentioned Frau Huppertz, was Frau Huppertz ever your Secretary?
A: No.
Q: Was Frau Huppertz ever your assistant?
A: No, Frau Huppertz tried to become my assistant and almost as we say in German, I would have come to it "Ich haette mich breitschlagen lassen" but Dr. Link advised me against it and it never came to it. Frau Huppertz is quite independent as far as I am concerned. She may do whatever she pleases. She comes and goes as she pleases and of course she is not paid by me, does not receive any remunderation of any kind from me: "Therefore that night and I should like you to state that again - you did not give any orders to Frau Huppertz to go to the hospital?
A: No, under no circumstances at all.
Q: What would you have done had you known that Frau Huppertz did go to see Dr. Gerstacker?
A: Then I would have become violent.
Q: Witness, after this matter had already been submitted to the Court you called Dr. Stern by telephone in the hospital and asked him for an intermediate report. Would you please explain how it came to that telephone call and that request?
A: That was after the affidavit was submitted. That is the affidavit by Gerstacker against me which was submitted here in open Court. I believe it is fair to say that if I did not want to say it that I am insane, that, of course I would never have tried to influence a doctor. The purpose of my telephone call was merely to find out whether the renewed medical examinations which had come to my knowledge after the questionnaires were filled out, together with the urologists, to determine the condition of Engert, had been completed, I always based my actions on the thought that it was my duty as defense counsel to keep the Court informed about the most recent condition and the most recent facts of the medical case history of Engert and it is peculiar that the questionnaires were filled out without having carried out an additional examination immediately before that, one used the basis for these expert opinions the last examinations.
However, during the time after answering these questionnaires all of a sudden the most extensive medical examinations were made and so far as I know have not even been completed up to this day. Reverting back now to the telephone conversation, I believe that Dr. Stern here is subject to an error because on that occasion nothing was said at all about an intermediate report. He says in fact in his affidavit only Dr. Marx proposed to me to consider an intermediate report, but that is not the same thing as a definite request for one. But it was not so that I immediately the next morning called Dr. Duerbeck, but I went to Mr. Wartena first and said: "Now, I really am under the impression that my assumption here is correct and that the condition of the patient must have deteriorated because otherwise they could not make all of these extensive examinations they are making now or something to that effect.
Then Mr. Wartena said, "request an intermediate report". I am convinced that Mr. Wartena meant that I should request an intermediate report through the General Secretariat.
Particularly in connection with this I want to point out that the conversation took place partly in German and partly in English, and only on that occasion the phrase "intermediate report" (Zwischenbericht) was mentioned at all. I don't even know what English phrase be used, "intermediate report" or something like that. Therefore, Mr. Wartena could be of the opinion that I was asking for an intermediate report through the -
THE PRESIDENT: (Interposing): The Tribunal will take a few minutes' recess.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: His Honor, Judge Blair, is temporarily indisposed and the Tribunal desires not to continue in his absence. For that reason, this hearing will be continued until tomorrow morning at 9:30. The main case, the United States against Alstoetter, will be again postponed until Thursday morning. We regret this unfortunate circumstances; but consider it our duty to take a recess at this time until tomorrow morning at 9:30.
(At 1445 hours, 29 July 1947, a recess was taken until 0930 hours, 30 July 1947.)
Official Transcript of American Military Tribunal III in the matter of the United States of America against Dr. Hans Marx and. Mrs. Karin Kuppertz, sitting at Nurnberg, Germany, on 30 July 1947, The Honorable James T. Brand, presiding.
THE MARSHAL: The Honorable, the judges of Military Tribunal III. Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal. There will be order in the court.
THE PRESIDENT: You may proceed with the examination of the Respondent Marx in the matter of the citation which has been filed against Respondent Marx and Respondent Huppertz.
DR. HANNS MARX (Resumed) DIRECT EXAMINATION (Continued) BY DR. ORTH:
Q. Dr. Marx, the witness Dr. Stern alleges that not only in the discussion with Dr. Gerstacker did you express the opinion that this case was unimportant and that the Tribunal was searching for a reason to sever the case from the trial, but that you had already previously made such remarks to Dr. Stern. Please comment.
A. I cannot imagine at all that I ever expressed the opinion that I considered the Engert case as insignificant or relatively unimportant. On the contrary, I considered this case in particular a very important case within the scope of the entire Case No. III, and I took it very seriously. Dr. Stern was, in my opinion, a young physician who, as he says himself, could not be considered for giving an expert opinion at all. On the other hand, however, I did know that Dr. Stern was in continuous contact with an American physician and that he was working at an American office. This circumstance alone would have prevented me from making such a silly remark, because I had to count upon it that in one way or other this remark would be spread. On this occasion I would like to remark that Dr. Stern in his testimony yesterday furthermore stated -- I cannot give the exact wording, but he said "that Dr. Marx said, and this was the meaning of what Dr. Marx said, that he considered the case unimportant and that the court was looking for a reason to sever the case."
If somebody was looking for a reason to sever the case, then it was the defense, but never the court or the prosecution.
Q. Dr. Marx you have just stated that the defense might have been looking for a reason to sever the case. Why were you looking for such a reason?
THE PRESIDENT: That is entirely unimportant in this case. This Tribunal knows that the defense filed a motion for the severance of the case. They were entirely entitled to file such a motion, and the matter remains still undecided. Limit yourself to the question as to the conduct of the respondent in connection with the alleged attempt to influence the doctor's opinion. The merits of the case Engert or of his health are not in issue at this time.
BY DR. ORTH:
Q. Dr. Marx, the witness Dr. Stern stated that in the discussion with Dr. Gerstacker and you at your request to clarify the facts, he did so; is that correct.
A. I myself did not become aware of Dr. Stern having given such an explanation to that effect. However, it is possible that in view of the extraordinarily excited manner in which Dr. Gerstacker addressed me, this did not reach my consciousness. However, I did make in particular the observation that Dr. Gerstacker under no circumstances in any way accepted or became conscious that Dr. Stern made, such an attempt, because this would have released the tension that was in the atmosphere according to -- this must have brought about a release of the tension in Dr. Gerstacker, according to all medical and human experience. But on the contrary I could only find out that he became increasingly excited.
DR. ORTH: I have no further questions.
BY DR. NATH-SCHREIBER:
Q. Dr. Marx, may I address a few questions to you. You remember the evening of the 9th of July when you had the discussion in the secretaries' room. Is it correct that in the morning of the same day you entered the secretaries' room and made the following statement: I am just coming from Engert. His condition has become extraordinarily worse. I told this to Dr. Kraetzer, too, and Dr. Kraetzer replied to me, you observe that very well, Doctor, is that correct?
A. I cannot say with certainty whether it was the 9th or the 10th of July, but it was the day on which in the evening I was told about the filling out of the questionnaire.
Q. In the discussion in the evening in the secretaries' room excuse me, do you want to add anything?
A. No, I understood your question to mean that you wanted to say it was in the morning of that day.
Q. Yes that is right. It was in the morning of that day?
A. Well, may I now answer the question -- I believe that I remember with certainty that was the course of events, and I know quite certainly that a few days before I had repeatedly observed the increasingly worse condition of Engert and remarked about it.
Q. Was that in the room of the secretaries where the respondent Frau Huppertz was also sitting?
A. I can only tell you that it was in the secretaries' office. I did not observe Frau Huppertz' presence.
Q. In the evening in the secretaries' room during the discussion when you came with the questionnaire was the name Dr. Gerstacker mentioned?
A. I know for certain that it was not mentioned.
Q. You reported yesterday that the respondent Frau Huppertz told you on that particular evening, "I always intended to visit the head nurse, and this would afford me an opportunity to be introduced to Dr. Kraetzer and to speak with her once." Did you when the Respondent made this remark to you become aware of this and absorb this remark so that you came to the conviction that Frau Huppertz was actually going to see Dr. Kraetzer?
A. I can answer this question as follows: The remark which Frau Huppertz made and which you just quoted I did not take seriously at all, but I considered it a momentary spontaneous expression of an idea, and I was absolutely not convinced by it as to whether Frau Huppertz would follow this remark up by action.
I merely thought, well, perhaps Frau Huppertz will visit the head nurse some day, hut whether the other steps will he taken, I am not so sure of at all. Those were my considerations and this can be seen from the fact that I considered the whole thing only a momentary expression of an idea on Frau Huppertz' part.
Q. Did you observe that on that evening Frau Huppertz took the questionnaires from the table of the secretary, Frau Wieber?
A. I did not observe it al all. May I remark in addition, I was absolutely occupied by the dictation of my final plea in the medical trial. I already was short of time since the final pleas had to be submitted for translation at a certain time. Since, however, the seawater experiments--
THE PRESIDENT: No, no. Counsel and the defendant must observe the rule which we have laid down here. We are not in the seawater case. Keep right down to the issue in this case and you will get along much better.
BY DR. NATH-SCHREIBER:
Q. Dr. Marx, would you have protested against it if you had observed that Frau Huppertz took the questionnaires from the table?
A. Certainly.
MR. LA FOLLETTE: I object, Your Honor. It is a leading question and calls for a self-serving declaration. He has already stated it in his direct examination. He said he would have become violent.
DR. NATH-SCHREIBER: May it please the Tribunal, I may perhaps call to your attention that this remark by Dr. Marx referred to the question as to what he would have done if he had known that she would have gone to Dr. Gerstacker. May I now put the next question?
BY DR. NATH-SCHREIBER:
Q. How did Frau Huppertz' leaving of the secretaries' room take place on that particular evening?
Do you recall that?
A. I would not have paid any attention to that event at all because I was completely occupied by my other work. I can only remember that I again saw Frau Huppertz when she was ready to leave and that she then made a remark to me which, however, was in a completely different context and which caused me to give her a rather brusque answer. Thus, if I may say so, in a Bavarian way we left in a huff.
Q. What did Frau Huppertz reply?
A. She reprimanded me seriously and considered her feminine pride injured. I can say what she said but, however, it is somewhat indecent and I don't want to say that before the Tribunal.
Q. The following day did Frau Huppertz, after she had spoken to Dr. Gerstacker and Dr. Kraetzer, inform you about the discussion and did she further inform you about the exchange of questionnaires which she had meanwhile found out about?
A. I can answer no to this question. At the most it could have been that Frau Huppertz made a brief, offhand remark to me which, however, I did not take notice of; but under no circumstances did she, in any way, explain to me what happened at the hospital -it must have been on that morning -- for if I had heard from her that she had been Dr. Gerstacker, then I would have immediately thought to myself, a big misunderstanding will arise out of this and I would immediately have told her that I would, under no circumstances, have agreed to that.
DR. NATH-SCHREIBER: I have no further questions of this witness.
THE PRESIDENT: Cross examination.
MR. LA FOLLETTE: If Your Honors, please, I would like also to have the witness Wieber recalled. I want to question her in rebuttal.
THE PRESIDENT: Make your arrangements with defendant's counsel.
She may be recalled. Do you want to cross examine?
MR. LA FOLLETTE; Yes, I do.
THE PRESIDENT: Be seated. Dr. Marx.
CROSS EXAMINATION BY MR. LA FOLLETTE:
Q. Dr. Marx, you stated in your written answer to the Tribunal-
THE PRESIDENT: I think you witness just left the gallery a moment ago.
MR. LA FOLLETTE: Well, it is all right.
BY MR. LAFOLLETTE:
Q. (Continuing)-- that you did not know what the answer of the American doctor was. I would like to ask you, if you did not know why then did you say in your answer and in your testimony that you would come to the court and ask them to accept the medical report of the American doctors?
A. From the attitude of Mr. Wartena and from my own point of view I drew the conclusion that there was a difference of opinion here between the answers of the German physicians and the answers of the American physicians which might exist. These earlier expert opinions were, after all, known to me and on that basis of my experience I can draw expert conclusions.
I also expressed that if it is correct that the American answers to the questionnaires denied that the defendant was able to appear at the trial, than I would draw that conclusion.
Q. How did you acquire the original answers of Dr. Kraetzer and Dr. Gerstacker to the three questions to which they answered yes and no, with their signatures on it? Were they sent back to you?
A. No. These questionnaires with the answers I saw for the first time in Mr. Wartena's office, who submitted them to me.
Q. Do you mean he loaned them to you?