But there is much in this record to show that as members of the medical profession of Germany they finally felt that they were obligated to report what to them was not only on one occasion but on two ocassions a deliberate influence the testimony which was to be given to this Court upon a material point, a material, issue, which this Court by approving a stipulation which I had entered into with Dr. Marx asked that the doctors should report impartially to this Tribuanal.
THE PRESIDENT: You have five minutes more of your first thirty minutes.
MR. LAFOLLETTE: Thank you. I think in the statements which are set out in the petition and in the affidavit of Dr. Gerstacker, of the conversation of the 28 of June are sustained by the proof and I think they lead unerringly to the conclusion that it was the purpose of the defendant Marx, in making those statements, to influence the testimony which Gerstacker was to give in his report; and if that is found then there is a contempt of this court.
I also am convinced that this woman, Frau Huppertz, went for the deliberate purpose of altering a report which had previously been given to the Secretary-General of this court and despite the denial and words of Dr. Marx and Frau Huppertz, there is evidence in this case from which I say this Court can clearly find, whatever the standard may be, beyond a reasonable doubt or by a fair preponderance in a proceeding of this kind, that there was an agency relationship and that this respondent Huppertz went, at Marx' express request; and if that is true then they are, each of them, guilty of contempt and I shall ask in my closing, if the Court so finds, that it shall assess a power punishment against each of these respondents.
DR. ORTH: May it please the Tribunal, the Prosecutor first -and I also want to follow that order of discussion--first discussed the question whether Dr. Marx gave the order to Frau Ruppertz to go to see Dr. Gerstacker. I believe that with one single argument I can solve that question. If Dr. Marx would really have had the intention to have the document changed and on the first page, instead of the word "yes" to have three times the word "no" put in, then he would have had to take this changed questionnaire and would have had to return it to exactly the same office from which he received the questionnaire.
About the fact that in a German questionnaire the wrod "yes" was recorded, he discussed this fact extensively with Mr. Wartena, and there exists no doubt at all that if that questionnaire would have been returned with the changed, Mr. Wartena would have been surprised immediately and would have said, "What happened to this questionnaire?
All of a sudden it says 'no'."
Dr. Marx is not that stupid to expose himself to such an obvious danger that everybody would be able to predict it; but there are other reasons for which one can say that this was not the case and it is not so that when the questionnaires were returned Dr. Marx must have realized that they are new questionnaires, as the Prosecutor beliefs, for the questionnaires which Frau Huppertz returned had only three handwritten entries on the first page and these were made by the same people who had originally made these entries in the same handwriting. So that one cannot distinguish at all whether those are the originals or the questionnaires which had later been copied.
Thus in that moment, when he returned the questionnaires, he could not see at all and recognize that they had been filled out anew. Compared with the original questionnaires they did not show the slightest change, and the Prosecution did not at all bring even the slightest evidence to the effect that the relationship between Dr. Marx and Frau Huppertz was not described correctly.
There is no reason to believe that she went to the hospital as Dr. Marx ' agent. On the contrary, all reasons speak for the supposition that Dr. Marx did not give the order and that he at first did not know anything about Frau Huppertz' visit to Dr. Gerstacker.
The Prosecutor broached the question why Dr. Marx gave the order to copy only the first page. The witness Wieber testified here that she had been given the order to copy the expert opinion-- not to be sure the order to copy, only the first page. Of course, the first page is the only important one because the second page does not contain any expert opinion at all. In both expert opinions the second page is literally the same and does not contain anything but the order and the signature. In effect, only the first page is in the nature of an expert opinion, and this may perhaps have also been the reason for which the witness Wieber only copied the first page.
The witness Wieber furthermore expressly stated that she had not received the order to separate the expert opinion and Dr. Marx, who at that moment was present occupied with quite different tasks, did not concern himself with that question at all. Thus, it is not an odd defense of the defendant Marx or of Frau Huppertz if they maintain that no order was given and I cannot see how, from a chain of unfavorable circumstances and coincidences, that sometimes occur in life, one can here conclude as to an intention to influence a physician in giving an expert opinion.
In addition if, for the sake of argument, one were to assume that this actually happened, then one could not understand the mode of action if Dr. Marx had had the intention to ask for anything that was contrary to truth and the witness Huppertz stated how, on the morning of the same day, Dr. Marx already stated that the condition of Engert had deteriorated again and we know that his opinion was correct. If, thus, he had actually had the intention to cause a change in the expert opinion, and one can never reproach him because of that.
As far as the first case is concerned that was described here, in which Dr Marx, on the 28th of June, was supposed to have influenced the physician, on can here too not speak about an attempt of that nature of perhaps does a man have the intention to influence a physician, a man who the day before, for half an hour, refuses altogether to go to the hospital and only under pressure exercised by Dr. Stern declares himself to be ready to go to the hospital. Or does he perhaps have the intention to influence a physician, who, as Dr. Gerstacker himself states, Says: "You are free to refuse to give an expert opinion." Or perhaps does a man have the intention to influence a physician, who tells the physician himself: "I am not interested in your expert opinion because I attache importance to the physical condition and not the psychiatric one." And, finally, does a man have the intention to influence a physician, who is constantly Quarreling with the physician, who is in contrast with that man and who does nothing in order to overcome that contrast?
And, then, if we examine objectively and dryly what Dr. Gerstacker said, the only sentence perhaps which could be interpreted as exerting an influence is, namely, the remark of Dr. Marx: "I had gained the impression that the Americans want to sever the Engert case."
Is this sentence as such, quite coldly and bears as it stands, apt to be regarded as an influence on a physician? I would like to see that physician who could be influenced by such a remark, who would be impressed so as to determine his expert opinion.
If I say I have the impression--I and not somebody else -have the impression that this is the case, I can tell the physician twenty times that I am under the impression Engert is dying, but the physician will answer: "You may be under the impression but this is my expert opinion." And without doubt this sentence was not suited at all to influence the physician, and even less could it, therefore have been an intentional influence.
And Dr. Stern stated that Dr. Marx had told him the same thing before and from that, in particular, your Honors, you can realize that there was no intention to influence because for that Dr. Stem would not be the expert and cannot be the expert because he was officiating physician on the ward. That Dr. Marx knew . What sense would there have been in making that statement to him if it was supposed to have involved the intention of being an attempt to influence?
If I wanted to influence a physician without doubt quite different means and ways and statements would be needed. I believe that Dr. Gerstacker himself at first did not have the conviction at all that Dr. Marx wanted to influence him and only later on when Frau Huppertz came to see him did he perhaps have misgivings. Only at that time did he perhaps think, "Now the things that happened before appear in an entirely different light." In other words, as a result of the discussion with Frau Huppertz, looking back on the discussion with Dr. Max, he ascribed a different meaning to the conversation with Dr. Marx.
This can be understood more plainly when we know of all those who participated, from all circumstances, that the discussion between Dr. Gerstacker and Dr. Marx in particular was everything but friendly and kindly.
In this excitement, neither Dr. Marx nor Dr. Gerstacker even recognized the attempts, by Dr. Stern, to, calm than down, to explain matters to than. In this excitement, many a word may have been said on one side and on the other side, which later may have been misunderstood or misinterpreted.
In any case today, as a result of the excitement that prevailed, one can no longer make a man like Dr. Marx responsible if another person misinterprets his words or in this excitement misunderstands them.
However, and this seems to me more important and essential than anything else, I have very serious misgivings and these misgivings are as follows: The concept of contempt of court does not exist under German laws. According to our German legal regulations, criminal legal regulation, without doubt Dr. Marx did not render himself liable for punishment, this legal regulation does not exist under our law. The problem now is, can this provision of American penal law, altogether outside of German law - can it be here applied.
No doubt exists that the Tribunal, as in the case in Germany, also has the so-called police authority during the session, that the Tribunal can prosecute and punish, excesses and transgressions in the court room, but beyond this "contempt of court" possible within the court room, we do not have the corresponding penal regulations under German law also applicable for an action outside of the court room. We do not have the corresponding penal regulations under German law.
Now, the Prosecution, particularly in the Jurist Trial in Case III, reproached the German administration of justice for having introduced German criminal laws in foreign countries and does the Prosecution now here make the same mistake? Does the Prosecution not here apply this American penal regulation, which does not apply under our law and apply it to Dr. Marx?
I believe that here the Prosecution, contrary to International Law, wants to apply a regulation which it cannot apply and that, for that reason too, the behavior of Dr. Marx in this trial cannot be punished and prosecuted in this way. But Dr. Marx requested me expressly to point that out at the end, because he welcomed the chance to justify his actions, because he never intended in any way to disrespect the court, as his endeavor was always only to serve justice and the truth. This was his only aim and intention in all his actions and therefore he cannot be punished.
DR. NATH-SCHREIBER: May it please the Tribunal, the defendant Frau Karin Huppertz is charged by the prosecution with contempt of court. The defendant does not intend to withdraw from the responsibility, however, just as my co-defense counsel Dr. Orth, I ask for a review of the legal question as to whether this American Tribunal can apply to the defendant, who is a German citizen and subject to German criminal laws.
I now want to go into the case itself. As a preliminary remark, I may say when on last Saturday I began to concern myself with this case and for the first time in my life spoke with the defendant Huppertz, my first words were the same that I always used in my practice of long years as a lawyer in complicated cases, and any way in every case to the client: "The highest standard is the truth." I told her I wanted to know what happened and how it happened, regardless of whether you have to incriminate yourself by your statements or another person. When during the discussions, which I had with her on Saturday and Sunday, repeatedly peculiarities in her description came to my attention, I again and again asked, "Did it happen in this way and in no other way?" This is what I want to say in advance.
How, I want to make the following remarks as to the case itself. In judging the respondent Huppertz and her actions, it is essential to consider the discussion between her and Dr. Gerstacker, which took place on 10 July 1947. In order to be able to understand this discussion at all, it is necessary to examine the basis of this discussion, on the one side as well as on the other side, on Dr. Gerstacker's side as well as on Frau Huppertz' side.
In the case of Dr. Gerstacker it was as follows. He was angry at Dr. Marx and as I assume for unimportant reasons. The excited interchange of words between Dr. Marx and himself on 28 June resulted in the name Marx having an effect on him like a red cloth to a bull and it made him excited.
On Frau Huppertz' part the following situation existed. Without any preliminary knowledge of the facts, without knowledge of everything that had taken place before, she came and knew nothing about the fact that Dr. Gerstacker sometime previously had sub mitted an extensive written expert opinion.
She came to him without any order, she did not know that Dr. Gerstacker was angry at Dr. Marx and that an excited conversation had already taken place with him. When she now came to him, she stepped on a wasp - nest.
Is it surprising then if this conversation on the 10th of July from the very beginning did not take the course, which it should have taken - the normal calm course of events which occurs in a calm discussion between two educated persons?
This explains also why Dr. Gerstacker was so excited, and that at the very beginning of the conversation. His excitement grew especially when he discovered that the original questionnaires had been changed. This excitement was transferred to the defendant Huppertz, and in accordance with experiences in such conversations, words are passed from one side to another without the persons involved weighing the words they used.
I do not blame Dr. Gerstacker, and I can understand very well if after the submission of these changed questionnaires he had gained the impression that something was not quite all right with this matter, and that Dr. Marx must be in back of this thing. But I am convinced that if Dr. Gerstacker had heard the testimony by the witness Wieber, and through this testimony would have found out how these unfortunate questionnaires got into this form, that if he had heard this, he probably would have reached a different conclusion. One thing, however, I cannot understand in the case of Dr. Gerstacker, if he was so convinced that in this discussion the defendant Huppertz, with the aid of Dr. Marx, would have required a change of his questionnaire against his better knowledge that the following actions which ho took cannot be understood. First, -- that he did not cut off the conversation with the defendant and show her the door. Secondly -- that he again filled out his questionnaires. Third -- that he himself sends the defendant to Dr. Kraetzer with a remark that the latter was not as unfriendly as he was, Fourth -- at the end of the conversation he apologizes and says goodbye to Frau Huppertz by shaking hands with her. And fifth -- that neither to any German nor American office did he make a denunciation.
One could put the heading over this case. "A chain of unfortunate circumstances." They start out with Dr. Sterns forgetting to inform Dr. Gerstacker that Dr. Gerstacker is especially sensitive about his not having been asked in advance whether he would be ready to give an expert opinion; and, moreover, Dr. Marx was not obligated to inform him in advance. And that this excited conversation took place on the 28th of June between Dr. Marx and Dr. Gerstacker; the conversation about which the defendant Huppertz did not know anything; that this questionnaire was copied by a secretary who had never yet worked with a lawyer, nor at a court; she was inexperienced in legal matters; and, in addition to that hard of hearing. And for Dr. Marx the misfortune that in the office of his secretaries, I would like to say a more than independent woman was sitting who was extremely active, and who now on her own initiative began to act, began to take steps. In addition to this she was angry about a statement made by Dr. Marx and had left the room quickly without saying goodbye to him, and in so doing had taken the questionnaires from the table, and the originals which had been put upside down, and were not on top of the questionnaires, she loft lying on the table.
The next misfortune is that she could not find Dr. Kraetzer and the she came to Dr. Gerstacker.
May it please the Tribunal, the deed of the defendant, her action can be explained only if one understands her personality. I regret it very much that the defendant did not have an opportunity to speak somewhat more extensively about her most interesting career. From the story of her life, it would have been obvious that this woman, and I may say so with pride, can look back on her life's work so far, -- she, whose profession is the care of the sick that is helping and intervening for others.
She did this to a large extent, and she did so for everybody -whether high or low -- regardless of ideology and regardless of race. This defendant has worked together in New York with first rate specialists, and has a great deal of respect for American doctors, and also for German doctors, and has a great deal of respect for the profession of a physician. It never would have occurred to her to influence a physician into filling out a questionnaire wrong and against his better knowledge. She is a very independent woman, and a very active woman.
Her great mistake in this whole affair was that she concerned herself about affairs which were none of her business, and about which she did not understand anything. That is her human guilt, but this human guilt is not to be put on an equal basis of a criminal guilt, under criminal law and if the Tribunal in examining the evidence should find that this chain of evidence against her is not quite conclusive, I ask to apply the principle in 'dubio pro reo' which our German law, too, until 1933, kept in high respect. It was a joy for us German jurists when in the opinion of the high Military Tribunal No. II, in the Milch trial, we could read the statements -- if the result of the evidence can be interpreted in the same way as to mean guilt or innocence, they have to be interpreted as to innocence.
For all those reasons, I ask for the acquittal of the defendant.
MR. LaFOLLETTE: May it please the Tribunal, shall I proceed?
THE PRESIDENT: Proceeds.
MR. LaFOLLETTE: I hope that I did not misunderstand the apparent shift in defense to confession in avoidance which was indulged in by Dr. Orth. I would say first that what we are considering here is the acts of Dr. Marx as presented by the evidence in this case -- one, which has the effect of interfering with the ordinary processes of this judicial proceeding, and I thought I understood him to say that Dr. Marx' actions would not be punishable under German law. I hope that is not properly stated, -- the existence of German law. I then understood him to say that this Tribunal was including jurisdiction wrongfully over Dr. Marx. I merely call attention to the fact that it is the essence of the power of any Tribunal to control its processes, and to control those who appear before it, and to accede to it that evidence is fairly presented and that nothing is permitted to interfere with the presentation of true facts for a Tribunal's consideration.
Furthermore, of course, it is clear that Article 6-C and Article 18 of the Charter which is made a part of law No. 10, and, therefore, also a part of the powers of this Tribunal expressly authorizes this Court to punish those who interfere with its ordinary processes.
Dr. Marx accepted employment under the jurisdiction of this Tribunal knowing that fact. The defendant Huppertz has taken advantage of the processes of the Tribunals established here to give her affidavit in aid of a defendant in whom she was interested. I do not think that it is a legal argument or an argument worth further consideration that a lawyer who practices in three of these Tribunals and a witness who comes here and gives testimony in one and advises in many should now be heard to say that this Court has not the right to punish them, if this Court finds that their actions warrant punishment. It seems to me that we come to only one serious argument which was raised by Dr. Orth and that is, was Dr. Marx only seeking truth when he told his secretary to re-copy the first sheet and in my opinion under this evidence directed Frau Huppertz, to have Dr. Gerstacker and Dr. Kraetzer, -- to attempt to persuade them to change the answers which they had given and which had come into the office of the Secretary General of this Tribunal, if it was only truth then Dr. Marx surely has been around these Tribunals long enough, and this Court can take judicial knowledge, to know there was an orderly method by which this Court could be advised of the truth. I find nothing in this evidence to sustain the argument that this Court should construe this evidence as a misadvertent or well intentioned but ill advised method of presenting this Court with the truth. It was an attempt to order a report officially given to this Court by physicians named by Dr. Marx under a stipulation approved by this Court and could have no effect whatsoever except to influence improperly the final decision of this Court by substituting a new opinion and a new answer which had previously been made, and if that were not true then Dr. Marx would have prepared two sheets even if he had not come to court without the signature of Mr. Willsie, the representative of the Secretary General of this Tribunal on the second sheet, and he would have sent than out and said, "If you have changed your opinion, sign it, and then I will take and present this to Mr. Willsie," and he would not have sent out only a first sheet and that is all I have to say.
THE PRESIDENT: The main trial in the case against the defendant Altstoetter, et al, will proceed tomorrow morning in the usual manner. The defendants and their attorneys will present themselves as usual at nine-thirty in the morning.
At that hour the Tribunal will announce it's decision in the matter which has been before it for consideration in the past two days.
The Respondents will present themselves at nine-thirty tomorrow morning at which time the opinion of the Tribunal will be announced.
We will recess until that hour.
(The Tribunal recessed until 3:30 , 31 July 1947)
Official Transcript of American Military Tribunal III in the matter of the United States of America, against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 31 July, 1947, the Honorable James T. Brand, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal 3. Military Tribunal 3 is now in session. God save the United States of America and this Honorable Tribunal. There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present?
THE MARSHAL: May it please your Honors, all the defendants are present in the courtroom with the exception of defendant Engert whose absence is due to illness.
THE PRESIDENT: Defendant Engert has been excused. Let the notation be made. Before proceeding with the trial of the main case, it becomes the duty of the Tribunal to pass upon the issues which were presented by the citation addressed to the respondents Dr. Marx and Frau Huppertz; and while the Tribunal will not attempt to give any extended expression of its conclusions as to the details, a few words may be appropriate to explain the procedure and our conclusions.
The proceedings are conducted in accordance with the provisions of Control Counsel Law No. 10, Article III, Paragraph 2, which provides that the Tribunal and the rules and procedure thereof shall be determined and designated by each Zone Commander for the respective zones. Ordinance No. 7 of the Zone Commander of this zone provides that the Tribunal shall deal summarily with any contumacy, imposing appropriate judgment, including the exclusions of any defendant or his counsel from some or all further proceedings, but without prejudice to the determination of the charge.
It has occurred to us that the phrase "contempt of court" may possibly not be fully understood. That phrase, as used in the citation, does not imply any physical expression of discourtesy to the individual members of the Tribunal. On the other hand, it is a phrase which is employed as referring to the improper interference with the due processes of the court. Consequently, the Tribunal approaches this issue in any entirely justified in doing and for the doing of which none of them could be either tried or reproached:
The attorneys in the case are always entitled, by orderly procedure, to seek from the Court aid in securing the testimony of expert witnesses as to the condition of health of the defendant, and if that condition of health changes they are entitled to seek subsequent supplemental investigations and to secure, by proper means, medical witnesses to aid in discovering the truth.
No act of this kind is charged as being improper in this case. The substance of the charge is that the respondents made false representations for the purpose of influencing the action of expert witnesses. These expert witnesses were named in a written stipulation between counsil for the prosecution and the respondent Marx. The Court made an order appointing these experts but that order strictly followed the stipulation of the parties.
After a first report had been made in medical terms, the Tribunal required of the experts that they answer a questionnaire. Three questions were asked and blanks were left for the answers to be filled in.
In addition to the charge of an attempt to improperly influence witnesses appointed by the court, the other basis of the charge is that the defendants participated in the mutilation of a public record after the same had been filed with the Secretary-General and was in the legal custody of the court. Counsel will recall that these interrogatories, these questionnaires, consisted of two sheets of paper on the first of which were the questions and blands for the anweres, on the second page of which was some further writing and the place for the signature of the expert witness.
A separate questionnaire was returned by each of the two German doctors. After it was signed, the two sheets, having been previously stapled together, were delivered into the custody of the SecretaryGeneral and became official documents of this Tribunal. The charge is that these documents were thereafter secured by the defendant Marx and were mutilated.
The mutilation if entirely undenied. The responsibility for it only is challenged.
As to the charge with reference to the statements made by the respondent Marx on the 28 June 1947; we have the direct testimony of two German doctors, both of them experts, both of them unimpeached as to their credibility, which testimony is opposed only by the somewhat equivocal denials of the respondent Engert. (Correction made at the afternoon session of the same day: "Marx instead of "Engert").
We find that the testimony of the two witnesses was in substance true and we find that the respondent Marx and the respondent Huppertz each knowlingly participated in the utilization and mutilation of the report and in the attempt to influence the signers of the questionnaire to join in altering it.
One matter which has received our consideration relates be the testimony of both respondents as to the relationship between the respondent Marx and the respondent Huppertz. The testimony as it was produced by those two respondents was to the effect that the respondent Huppertz was acting wholly as an independent agency without any real connection with the respondent Marx at all, either in general or in this particular instance.
The testimony of both respondents on the issue of the relationship, whether that relationship was that bf employer and secretary, or of principle andagent, or of lawyer and informal assistant, the testimony was equivocal and evasive. It was conclusively established to our mind that the respondent Marx wrote to Berlin with reference to the coming to Nurnberg of Frau Huppertz and on 3 June we have the evidence of a telegram sent in confirmation of a telephone conversation which request clearance for Frau Karin Huppertz to be assistant counsel to Dr. Marx. There surely was some relationship between these two parties and it appears to have been a close one.
The purpose of the original mutilation of the document has not been satisfactorily explained by the respondents. We consider it highly improbably that the secretary of stenographer in the office separated them by accident. It will be recalled that there were two separate documents, one by one German physician and the other by the other. Both were separated, the first pages in each case being removed. The accident theory seems impossible.