A. No, he then would have to think it over as to whether that was possible and he should have said. "I have to think it over from the medical point of view." That would be a different matter.
Q. I think maybe you did not understand me. When you started out to his office to the hospital you had those four sheets of paper in your handbag, you had never looked at them?
A. Yes.
Q. If Dr. Gerstacker had changed his mind, what were you going to have him do about the first sheet he had already written on; how were you going to do that?
A. I had to leave that to Dr. Gerstacker himself.
Q. Well, then you did not go out there then just to have him fill out the sheets the way they were before because you thought they were lost in Dr. Marx ' office?
A. I did not go to see him at all on account of the questionnaires as my main reason. I went to see him for the sake of a discussion.
Q. So, you went to see him for tho sake of a discussion, but you carefully took with you two new questionnaires with the first sheets blank; is that right?
A. That the first pages were blank, that I only found out there. Frau Wiever had been ordered to copy the questionnaires, I did not know if she had not done them correctly.
Q. You wore there when the order was given to copy them?
A. Yes.
Q. And you picked them up?
A. Yes.
Q. Now you were going to have a conversation with Dr. Gerstacker and Dr. Kraetzer, yes, a nice friendly conversation?
A. Originally I only wanted to speak with Dr. Kraetzer as one woman to another.
Q. Then why did you take the questionnaires along then; were you going to write notes on them to each other?
A. No. I had to have some contact with the chief nurse, Dr. Kraetzer, that is how it must have been.
Q. So you went to the hospital and took two "fragebegens" with the second sheet signed and the first sheet blank, one signed by Dr. Kraetzer and one signed by Dr. Gerstacker so they would serve as an introduction to you to the head nurse at the hospital; is that what you mean, is that why you went there?
AAll that happened so terribly fast that evening; but if the doctors had wanted to change their opinion, that possibly would have been there.
Q Yes, but wait a minute. The last thing I understood you to say was that you had taken these fragebogens so you could show them to the head nurse at the hospital to serve as an introduction of yourself. Did that happen that evening?
A Yes.
Q So you didn't take these out with you to have anybody sign them at all then.
A I was under the impression that they had already been signed and they were quite completed.
Q Then, why did you want to talk to Dr. Gerstacker or Dr. Kraetzer?
THE PRESIDENT: I think she has explained her position sufficiently.
MR. LAFOLLETTE: If the Tribunal is satisfied, I guess I must be.
Q Now, you said that you came down here to do a good turn. You say in your statement that you were called down here testify about the sea water experiments. Did you serve as a nurse in the concentration camp slaughters during the war when these experiments were being carried out?
A No. I never left Berlin during the whole of the war except for occasional trips.
Q Will you please tell me why you came back to Germany from New York in 1933?
A Because on her return trip from Africa, my mother fell ill and died in Antwerp.
Q You never heard of Engert until you got down here; is that right?
A That is right.
Q Dr. Beiglboeck conducted the sea water experiments, didn't he?
THE PRESIDENT: Mr. Lafollette -
MR. LAFOLLETTE: If Your Honor please, I would like to have an answer to this.
A I heard that here at the court.
Q And you were sent for on the 11th of June by Dr. Marx-
A I was here on the account of a trial in nursing affairs. I had to return to Berlin.
Q All right; I will accept that. Do you know that in the medical case, on the 20th of June of this year, the Prosecution produced evidence that Dr. Schroeder was at Natzweiler on the 25th May, 1944.
A Yes.
Q You know that.
A Yes.
Q And then ten days later, Dr. Marx as attorney for Schroeder, you gave an affidavit that Dr. Schroeder could not have been in Natzweiler -
A Yes.
Q On that day because he was attending a birthday celebration in your family.
A Yes.
Q And just out of the desire to do a humane act you went to see two doctors who had given export testimony as to the physical and mental condition of a defendant Engert about whom you never heard.
A Yes.
MR. LAFOLLETTE: That is all.
DR. NATH-SCHREIBER: May I put a few more questions to the witness.
THE PRESIDENT: If they are related to and limited to re-direct examination, you may do so.
RE-DIRECT EXAMINATION BY DR. NATH-SCHREIBER.
Q Frau Huppertz, what did you have to do with the sea water problem; what capacity did you have knowledge about it?
A I only learned about the sea water problems themselves here; or, perhaps before the newspapers; and from the indictment of Professor Schroeder.
Q In what capacity did you, I believe at the beginning of June 1947, come back from Berlin?
A I had received travel orders from here, and on the travel orders it said "assistant counsel"; that must have been a mistake, for later I found out that the first secretary of Br. Marx, for example, too has a pass on which by mistake it says "assistant counsel"although she is a secretary.
Q At that time did Dr. Marx intend to employ you as a secretary? And, did he make an application for your return to the court using that for a reason?
A Dr. Marx gave me a letter which I submitted in Berlin, and subsequently travel orders were forwarded from this end and were received in Berlin.
Q Were you employed ever -
A No, I was never employed -
THE PRESIDENT: You have covered that matter in your first examination.
DR. NATH-SCHREIBER: I have no further questions.
THE PRESIDENT: Do any other counsel have questions to put to this witness?
DR. NATH-SCHREIBER: I have no further questions to the witness Karin Huppertz.
With the approval of the Tribunal, may I now call Frau Johanna Ernst, the head nurse of the Nuernberg hospital.
THE PRESIDENT: The witness, the respondent Huppertz, is excused, there being no further examination. You may call your next witness.
MR. LAFOLLETTE: Excused as a witness, Your Honor.
THE PRESIDENT: The witness Huppertz is excused.
JOHANNA ERNST, a witness, took the stand and testified as follows:
BY 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 add and withhold nothing.
(The witness repeated the oath.)
DIRECT EXAMINATION BY DR. NATH-SCHREIBER:
Q Sister, may I ask you to give your personal data to the Tribunal?
A Johanna Ernst. I was born on the 27th December, 1878.
Q What is your profession and were do you work?
A I work at the City Hospital, in Nuernberg as head nurse and Diaconiss.
Q Sister, please describe to us your meeting with Frau Karin Huppertz.
A Frau Karin Huppertz came to see me and said that she had come to see me about a very unpleasant matter, and she wanted to act as intermediary between Dr. Marx and our two doctors, Dr. Gerstacker and Frau Dr. Kraetzer, chief physician.
Q. Sister, amy I ask you first of all as to how Frau Huppertz introduced herself to you.
AAs Sister, Schwester, -- Karin Huppertz.
Q Did you know the name of Frau Huppertz; did it mean anything to you?
A Yes, I knew her name from the periodical "Die Deutsche Schwester, the Nursing World. That was a periodical which we used to read at Neuendettelsan.
Q Just now you said that Frau Huppertz had said to you that she wanted to mediate Dr. Marx and between Dr. Kraetzer and Dr. Gerstacker.
A Yes.
Q Did she immediately at the beginning of your conversation mention the name of Dr. Gerstacker?
A I cannot remember that for certain, but she did mention the two doctors.
Q May I ask you to continue for the time being.
A Well, Miss Karin Huppertz said that Dr. Marz was very angry because our German doctors had given a different medical opinion from the one which had been given by the American doctors with reference to the two defendants who were ill, the Americans had said no; whereas, our doctors had said yes; and had said that they were able to stand trial.
And Dr. Marx was very angry and she wanted to see whether one couldn't mediate between Dr. Marx and the two doctors.
Q Did Frau Huppertz during that conversation take documents from her hand bag?
A Not when she was with me, no.
Q Did she show the questionaires to you?
A No, I did not look into them. I didn't look into those questionaires.
Q Sister, do you remember that Frau Huppertz was holding papers in her hand while she was talking to you?
A I only remember she was holding them in her hand when she was with Dr. Gerstacker. I do not remember she was holding them in her hands when she was talking with me.
Q May I ask you now to give us an account of the further course of the conversation, what was the development? May I ask you a question? Did you go first to look for Dr. Kraetzer?
A I went to look for her in ward 37 where she was working but she wasn't there at that time. Then we went to ward 21 to Dr. Gerstacker.
Q Did you suggest that you go look for Dr. Gesstacker or was it Frau Huppertz who suggested that?
A I can no longer remember that for certain but maybe I did say: "because Frau Dr. Kraetzer is not here for the moment I will first go ward 21 with Frau Huppertz to see Dr. Gerstacker."
Q May I ask you now to give us an account of the conversation with Dr. Gestacker. How did you introduce Frau Huppertz?
AAs nurse, Schwester, Karin Huppertz.
Q During the conversation did Frau Huppertz use the words: "I am Dr. Marx secretary?"
A I cannot remember that. I cannot remember having heard that word.
Q Please give us an account of the course the conversation took?
A When Dr. Gerstacker came, Sister Karin explained to him the matter on behalf of which she had come. Dr. Gerstacker immediately got very excited and furious because as he thought he was going to be expected to give a different medical opinion from the one he had given. He said according to his conscience and to his best medical knowledge he had given his expert opinion, and according to that theory he could not now deviate from it.
Q Did Frau Huppertz immediately at the beginning of the conversation produce the questionaires.
A I cannot remember that for certain but certainly she did submit them to him during the course of the conversation.
Q Was Dr. Gerstacker very excited during that conversation?
A Yes, he was excited.
Q Do you remember whether Dr. Gerstacker, I beg you pardon, I am correcting myself - do you remember that Frau Huppertz said to Dr. Gerstacker that she had come to ask him to bring the expert opinion up to date?
A I can't say for certain. I can't remember. I could not follow the conversation so closely because I did not find out the details of the matter. I did find out what it was all about.
Q Do you remember this? Did Frau Karin Huppertz say more or less at the end of the conversation :"Well then, doctor, put your "yes" down on the questionaire and everything will be all right again?"
A Yes, I do remember that.
Q Did you try to persuade Dr. Gerstacker?
A Yes, I did that.
Q Is it right that Frau Huppertz said to Dr. Gerstacker: "Well really I had meant to go and see Frau Dr. Kraetzer but I no longer feel like it."?
A I don't remember that for certain.
Q Do you remember that Dr. Gerstacker said to Frau Huppertz: "You can go to see Frau Dr. Kraetzer. She isn't as rude as I am"?
A Yes, yes, I do remember that.
Q At the end of the conversation did Dr. Gerstacker apologize to Frau Huppertz because of his behavior?
A Whether I can use the word "apologize" I don't know for certain, but at any rate the two shook hands and parted feeling more settled again.
Q Do you remember this remark by Frau Huppertz: "'Well I came on account of the kindness of my heart to mediate"?
A Yes, I remember that exactly "and now I am having all of this trouble. That is what has happened to me."
Q Do you also remember that Frau Huppertz said that she had taken questionaires like that from the table?
A Yes, yes, because Dr. Gerstacker was excited because one sheet seemed to be missing and she said she had taken them from the table like that.
Q When the conversation with Dr. Gerstacker was ended you went to Frau Kraetzer, did you?
A Yes.
Q How did you introduce Frau Huppertz there?
AAgain as Nurse Karin Huppertz. Of course, because that was the only name by which I knew her.
DR. NATH SCHREIBER: I have no further questions to offer.
DR. LAFOLLETTE: No questions.
THE PRESIDENT: Counsel has indicated there is no further examination of this witness, the witness may be excused.
Has the Respondent Huppertz by her attorney any other witness to call?
DR. NATH SCHREIBER: No.
THE PRESIDENT: We have already been advised that the Respondent Marx has no further witnesses to call. The case of the Respondents is closed. Is there any rebuttal testimony?
MR. LAFOLLETTE: Yes, Your Honor, I would like to have, if she is available now for one question, this secretary Wieber recalled.
THE PRESIDENT: Is she here?
(The witness is recalled)
She has been sworn?
WITNESS: Yes.
BY MR. LAFOLLETTE:
Q Frau Wieber just one question. After you finished copying the questionaires that Dr. Marx put on your desk on the evening of the 9th of July, did you then take them and put them on Dr. Marx's deask?
A No, I put the copies together with the original to the left of me on the filing table and I said:
"These are the copies".
Q To whom did you say that? Do you remember?
A I think that Dr. Marx must have been standing by that table.
MR. LAFOLLETTE: That is all.
BY DR. NATH SCHREIBER:
Q Frau Wieber, please explain as to how you put the copies and the original down?
A The original pages, that is to say, the first sheet I bent over and I pushed the copy and the pages inside, then I put everything down on the left side of me.
Q Did you notice that Frau Karin Huppertz took the originals from the table?
A Np, I did not notice that.
Q Do you remember that Frau Karin Huppertz left the room very quickly and rather annoyed?
A No.
Q Were you very busy that evening?
A Yes, I was.
DR. NATH SCHREIBER: Thank you.
BY DR. ORTH:
Q When you had finished these copies and put them down, was Dr. Marx still busy dictating his brief?
A No. He was not.
Q Did he take the copies?
A I didn't notice that. I didn't see that.
BY MR. LAFOLLETTE:
Q There is one thing more. Did you take the copies of the second sheet as well as the first sheet of those questionaires?
A No, I only copied the first sheet.
THE PRESIDENT: You are excused.
MR. LAFOLLETTE: The petitioners rest.
THE PRESIDENT: Does counsel for the respondent Marx desire to argue the case?
DR. ORTH: Yes.
THE PRESIDENT: And counsel for the defendant Huppertz?
DR. NATH SCHREIBER: Yes.
THE PRESIDENT: Commencing at one-thirty the Tribunal will allow thirty minutes in which to argue the case in behalf of the defendant Marx and thirty minutes in which to argue the case of the defendant Huppertz. Do you also want to argue?
MR. LAFOLLETTE: I would like to if there are arguments, Your Honor.
THE PRESIDENT: We will give you 45 minutes to argue both cases.
MR. LAFOLLETTE: I assume I shall open or shall I close?
THE PRESIDENT: You will open, and close.
MR. LAFOLLETTE: In other words, I may divide my 45 minutes between opening and closing as I see fit.
THE PRESIDENT: Fifteen minutes to close.
We will recess until one thirty this afternoon.
(The Tribunal adjourned for the noon recess .)
AFTERNOON SESSION (The Tribunal reconvened at 1330 hours, 30 July 1947)
THE MARSHAL: The Tribunal is again in session.
MR. LA FOLLETTE: May it please Your Honors. In presenting the prosecution's view of this evidence, I shall spend relatively little time on the matter of the respondent Huppertz, but in reviewing the evidence against both of these respondents, it is very proper, I think, to consider certain physical facts which we now know about this case, and, to begin at the beginning, apparently, of the matter of Frau Huppertz visit to Dr. Gerstacker and Dr. Kraetzer.
Dr. Marx came back in to his secretary, to his office, and bore with him in his hands the answers to the three questions, which the Court had submitted, of Dr. Kraetzer and of Dr. Gerstacker. We know that at that time they were stapled together and we know that Dr. Marx directed the witness Wiebner, his secretary, to make copies.
And now we come to the first conflict between the facts and the statement of Dr. Marx. He explained that he wanted copies for his files, but we learn that he only directed his secretary to make a copy of the first sheet of each of these questionnaires. It is indeed odd that when an attorney wishes to have a copy for his files, he is not interested in having a true copy, including everything which is written on it and a typewritten form of signature, as well as a copy on the typewriter of the written answers which were on page one, if these are for the files.
This secretary copied the first sheet only of each of these questionnaires and laid them on the table where Dr. Marx was standing, beside which he was standing, or near which he was standing. And we know that it is true that Dr. Marx was there because he tells us that he did not go to his room and therefore he could not have gotten these copies from his desk in his room because he was busy and continued to dictate in the room with his secretary. Frua Huppertz was there, and we are given a conversation in which Dr. Marx expresses his disapproval of the capacity of the German doctors to give expert opinions, and in which Frau Huppertz says she volunteered and voiced a disapproval of what the respondent Marx said because of her interest in German doctors and his position as represented.
Now we are told that Dr. Marx paid little attention to that except to tell her that he would do what he wished on that matter, and we are told then that voluntarily, that evening, Frau Huppertz, without saying anything to Dr. Marx, picked up all of these papers from the desk and went to the hospital with them. But Exhibits 3 and 4--which the respondent Huppertz testified this morning are in the condition in which she took them to the hospital--were stapled together, and the last person who handled them according to this evidence, was this secretary, at which time the two originals were stapled together and the blank sheet was put in between them. But Frau Huppertz tells us that she never looked at these things until she got them out of the hospital. Yet mysteriously, from this evidence, we find that the original two sheets were stapled together with a new first sheet when the secretary finished with them, and they appear at the hospital, in Frau Huppertz' ands, stapled together with the old second sheet with the signature, and a new first sheet which has not been filled out; and yet neither the respondent Marx nor the respondent Huppertz, who were in the room all of the time because they left practically at the same time, ever took the trouble to tell this Court how that was brought about.
And I say to you that it had to be brought about, from what this record shows, in the respondent Marx's office while he was there, by his own testimony, because Frau Huppertz tells us that she never looked at them until she got out to the hospital. And Frau Ernst tells us--that Frau Huppertz did not present these to her when she first came to the hospital.
In the face of these facts we are asked to believe that out of a swelling kindness of the heart, for a man of whom she had never heard before, by the name of Engert--who, incidentally, was a pretty large sized Nazi--Frau Huppertz goes to the hospital and appears there with an unfilled out first sheet of the questionnaires of each of the doctors and a signed second sheet; but mysteriously, the original first sheet has disappeared.
Now, we do know something about that one original because Dr. Marx says that at some time-which I am not clear about, and his counsel may give a more definite date--but after that evening, he found the first sheet of Gerstacker's, but I don't know how he knew it was the first sheet of Gerstacker's, unless he knew Gerstacker's handwriting, which he doesn't say. But let's assume that it was the first sheet of Gerstacker's, and that disturbed him so that he thought something was lost.
As far as I am concerned, I don't believe anything that Frau Huppertz says about her design to go to the hospital to make a call on Dr. Kraetzer or to see Sister Ernst, nor do I believe that it was necessary for her to pick up these papers in order to serve as an introduction to Frau Ernst, because Frau Ernst says that she knew of Frau Huppertz because her reputation was well known in medical circles, and she also said that she never pulled out the papers for her until she got into Dr. Gerstacker's office.
Now these papers were returned by this woman who knowingly asked a doctor, and in fact alter went to see a second doctor about which we know nothing, Kraetzer, except that the Kraetzer statement comes back answered the same as it was before, but it also was in blank, from this testimony. She went to see Gerstacker and said that she never know that he had given an expert opinion. Yet she was present when Dr. Max denounced the German doctors for their opinion, and on that occasion she took umbrage with it. Now it is incredible to me that Frau Huppertz did not disignedly and intentionally go to see Dr. Gerstacker for the purpose of getting him to alter an opinion which had been previously delivered to the Secretary General, an officer of this court, signed, in order that she could substitute a different answer to the questions entirely opposite to the original which she had seen. And she must have seen them because if she picked them up, they were there where this secretary had put them.
Now we next come to an interesting question with reference to the respondent Marx. As far as I know from this testimony these newly signed first sheets, with the second sheets newly attached, got back to DR. Marx' office. But no one ever tells us from this evidence how they got back into the Secretary General's office, and eventually into the office of the judges of this Tribunal for their consideration. And again, it seems to me, that I am asked to believe a great deal when Dr. Marx says that he found the signed first sheet of Gerstacker and was disturbed, and then never finds it necessary to explain why he was not disturbed, why he did not ask somebody something when he found a new first sheet of Gerstacker, even assuming that he never found the original first sheet of the Gerstacker statement. And yet we are asked to believe that Dy. Marx, who had borrowed from an officer of this Tribunal, a representative of the Secretary General, the original answers for the purpose of having copies for his files, and having found a signed copy lose, isn't disturbed when he finds a new signed copy attached to Gerstacker's signature, which he must have found sometime in his office, or he certainly would have explained to this Tribunal how it got back into the Secretary General's office.
And yet we are asked to believe that he didn't know that Frau Huppertz ever went out there. And again Frau Hupperts, on her own do and say, made her decision to to to the hospital, and just before she left she testifies that Dr. Marx insulted her so that neither she nor Dr. Marx -- they apparently insulted each other so--care to testify what was said. In that frame of mind, as a volunteer -- not as what she was from the facts of this case, as an agent of Dr. Marx, going there with his knowledge, but as a volunteer, having been insulted she still goes out to the hospital the next day, taking those two sheets of paper -- we don't know how they got stalled, you know -- as a method of introducing herself to the sister out there.
Now, it is from the little things that we must test the selfserving statements of respondents in any case, or defendants in any case. It is very human to want to attempt to give an explanation that will hold water. But Dr. Marx testified that he called Dr. Kraetzer and said, "Someone will be to see you in the morning." He then said that he went himself. And I ask this Tribunal to use its ordinary experience in dealing with men, which is a standard, for I am entitled to that --here was Dr. Marx, who knew Dr. Kraetzer, and if he intended to come, he asks this Tribunal to believe that he said to her, "Someone will be to see you tomorrow." And Frau Huppertz says that she went out really to see Dr. Kraetzer. And she went out, if you please, with Exh. 4 in her hadn -- or 3, I am not certain --3 in her hand, which was the Kraetzer statement with the first page in blank.
Now there is another little piece of evidence in this matter that, I think, this Court has a right to consider and put in its place in this picture. The Court will recall that Frau Huppertz says she was very much disturbed when Dr. Gerstacker didn't want to sign another new first sheet. Why was she so disturbed? Because she knew that the two originals first sheets either were destroyed or were back in the office, and if they were lost, as she says she was worried about, it would be very difficult to account for the separation of the first and the second sheet of each of these questionnaires.
If you had to return an unsigned first sheet by Dr. Gerstacker to the Secretary General's office from which Dr. Marx got it. There would have to be some explanation made as to why Mr. Wartena would receive back an unsigned first sheet when he had delivered to Dr. Marx, purely for him to copy, two completely filled out questionnaires by two doctors, each complete and stapled together.
Now Frau Huppertz comes and associates herself with Dr. Marx. She gives an affidavit for him on the 30th day of June in another case. She maintains her office and her desk and her working space in his office. She appears at the hospital and interviews Dr. Gerstacker and then Dr. Kraetzer by her own testimony. After Dr. Marx has said that someone will be to see you, Dr. Kraetzer, in the morning --"Someone" she appears out there with a new blank first sheet stapled together, unexplained completely by anything that they have sought to explain, and they were there. The Prosecution wasn't in that secretary's And we are asked to believe that this woman that Dr. Marx requested to returned from Berlin, could act for him in his office in all other matters, and on this occasion she completely served and acted, as a volunteer. We are asked to believe that in the face of the fact that they had full opportunity to explain who took these Fragebogens back to Mr. Wartena. Frau Huppertz might have taken them. That is one thing she forgot to protect Dr. Marx in. She didn't say she took them back herself. She got them back to his office.
Now I am asked also to witness the defense of Frau Huppertz in this case, and I ask the Tribunal to witness it. Admitting the conversation, admitting that she had heard Dr. Marx' statements the night before, admitting that she had asked. Dr. Gerstacker to change his testimony, she can't be heard to say that she didn't know she was attempting to produce before this court for it to make its decision a substituted decision from that which had been filed and deposited with the Secretary General, an officer of this court.
That she knew. Under those circumstances people acting normally in their own interest would say, Yes, I did that. Dr. Marx asked me to do it, and I am sorry. I throw myself on the mercy of the Tribunal. I was wrong. But the constant conduct of this defense of Frau Huppertz has been an accentuation on the fact, through the interrogation of her counsel, of all questions which led her to answer, or any other witness to answer, Dr. Marx didn't know anything about it. It is the oddest form of defense that I have ever seen voluntarily assumed. And in determining the good faith of that defense as bearing upon the question of whether or not she acted as Dr. Marx' agent, this Tribunal is entitled, and in my humble opinion required to give consideration and weight to the things which it observed in this court room and the record which it has before it and which has been made here for two days.
Of course, agency, like many other relationships of the law, is rarely admitted by words, or can rarely be proved by words. But in determining an ultimate fact a court is always entitled to determine what aspects of the facts in the case bear upon the ultimate question. And if the facts in the case and the inferences which are to be drawn from them lead unerringly to a, conclusion of the relationship of agency, then that relationship must be found to exist, notwithstanding the vact that the parties choose to deny it.
On the question of the first meeting we have only the statement of what Dr. Marx said he said and what Dr. Stern and Dr. Gerstacker said. I can see no reason why Dr. Stern should report a conversation which he did not hear, and the conversation was to the effect that the Americans are not impressed by the gravity of the Engert case, and with the help of physicians they would like to see it dropped. Dr. Stern says that he remembers well that it was stated in the presence of Dr. Gergtacker. Why? Because it had been said to him before. Now, there is nothing in this record to show that Dr. Gerstacker and Dr. Stem have entered into a plot to injure Dr. Marx.