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.
The fact That the secretary orstenographer made copies only of the first sheet, indicates that someone was interested in the substitution of a new sheet. It is significant that the stenographer did not in fact copy even the first sheet. Had she been instructed merely to copy the first sheet, she surely would have copied the answers which appeared on the first sheet in which the doctor replied "ja" to the interrogatory. But she did not copy the answers and therefore did not accurately copy the first sheet. She omitted the only really important portion of the sheet which she did copy. She must have received instructions from some source to do so. The intent was clearly to prepare a blank, unfilled in sheet number one, and that sheet in its blank form was attached to the sheet, which contained the signature previously made by the physician. Again the attempt to mutilate the documents is clear, because if the sheet had been separated untentially then surely in reassembling them and again stapling them together they would have stapled the original first sheet to the original signature. But they stapled another sheet which they must have known was not the original, because it was in blank. Whoever say the original. first sheet knew that it was filled in with the answers "ja". The fact that the blank sheet was stapled on the signed second sheet indicates an attempt that a change should be secured in the answers, which proceeded the original signatures. We found it unnecessary to go further in our discussion of the matter. After these informal comments, the court will now read the judgment of the Tribunal:
NOW, at this time, the above-entitled matter coming on for hearing upon the Order directed to Dr. Hans Marx and to Mrs. Karin Huppertz, and each of them, to appear and show cause why they should not be punished for contempt, and the said respondents and each of them having filed their written answers to the charges on file herein, and the cause having been heard open in court upon the testimony submitted by the prosecution and by the several respondents and their witnesses, and the Court being advised; NO , THEREFORE, It is the judgment of the Tribunal that the respondent Dr. Hans Marx is guilty of the offense of contempt of court as charged in the petition and supplemental petition on file herein;
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Respondent Marx be imprisoned for a period of thirty (30) days in such place of confinement as shall be designated by the Marshal of this Court;
IT IS FURTHER ORDERED AND ADJUDGED that the said Dr. Hans Marx be and he is barred from further participation in the cause now pending before this Tribunal, and t, at he be and is excluded from the court room during the trial thereof;
IT IS FURTHER ORDERED that Dr. Heinrich Link be and he hereby is appointed chief counsel for the defendant Engert, and the respondent Dr. nans Marx is directed to deliver to Dr. Link all official records and files in his possession as attorney for the defendant Engert;
IT IS FURTHER ORDERED that execution of the sentence of imprisonment be and it hereby is suspended until the present employment of the respondent Marx as official counsel in the trial of any case now pending before any of the military tribunal s now sitting at Nurnberg shall be terminated; upon such termination the sentence of imprisonment shall forthwith be executed;
IT IS FURTHER ADJUDGED AND DECREED that the Respondent Mrs. Karin Huppertz is guilty of the offense of contempt of court as charged in the petition of the prosecution, aid that she be imprisoned fora period of ten (10) days in such suitable place of confinement as shall be designated by the Marshal of this court, having due regard to the sex of the respondent;
IT IS FURTHER ORDERED that the sentence herein imposed by forthwith executed, subject, however, to the condition that upon request of the respondent Huppertz, or of the prosecution, execution of the sentence may be postponed for a period not exceeding ten (10) days.
This ends the judgment of the Tribunal.
The provision with reference to the suspension of the sentence, in the case of Dr. Marx until completion of any official employment in some other Tribunal, is made solely because of the desure of the Tribunal that no action on its part should interfere with the rights of any defendant in any tribunal now sitting in Nurnberg.
Counsel may proceed with the main case.
MR. LAFOLLETTE: If Your Honors please, just for the record, I have now for distribution German and English copies of Exhibit No. 533 which was heretofore offered and introduced as evidence in connection with the cross-examination of the defendant Klemm. The court was kind enough to permit me to introduce this document NG-1943 before the documents were available for distribution. I hand them now for distribution in English and German. The interpreters do not need them but the reporters do.
THE PRESIDENT: The exhibits have been received.
MR. LAFOLLETTE: I just want the record to show that I am making distribution of the documents.
Likewise, if Your Honors please, Exhibit No. 527, which was read and introduced in evidence in connection with the dross-examination of the defendant Schlegelberger was permitted to be introduced without the documents ready. I have them now for distribution in English and German. The number is NG-839.
THE PRESIDENT: The number please?
MR. LAFOLLETTE: Exhibit 527.
JUDGE HARDING: The first one was exhibit 533?
MR. LaFOLLETTE: Yes, Your Honor. This completes everything to be done in connection with these two exhibits. Give an extra copy of the German to Dr. Schilf and an extra English copy to the Secretary General.
THE PRESIDENT: You may proceed.
DR. GRUBE: (attorney for the Defendant Lautz) I merely want to explain that I have no further questions for the re-direct examination.
My examination of the defendant Lautz is completed. I do not know whether anybody else has a question to address to him. Otherwise, I would now like to call the witness Helmut Boden.
THE PRESIDENT: Does counsel for any other defendant desire to examine the defendant Lautz?
MR. KING: Your Honor, we requested earlier that the defendant Lautz be recalled upon the submission of further exhibits. I was not clear whether the Court agreed to that proposal.
THE PRESIDENT: Yes, it was understood that we would do that.
MR. KING: In that case we have no further questions at this time.
THE PRESIDENT: I see.
DR. GRUBE: May I ask a question in relation to this matter. What time limit has been set inside of which the Prosecution, after the submission of documents, may recall the defendant Lautz for cross examination the cross examination should follow immediately upon the submission of the documents in my view.
THE PRESIDENT: We will make no special railing at this moment, but we think it entirely proper that first the Prosecution should have a reasonable time to examine the documents, and then should proceed with any cross examination they may have, promptly after opportunity to examine the documents has been given them.
DR. GRUBE: Yes. May the witness Lautz be excused then; and, may I call the witness Boden.
THE PRESIDENT: Yes.
HELMUT BODEN, a witness, took the stand and testified as follows:
BY JUDGE HARDING:
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.)
You may be seated.
DIRECT EXAMINATION BY DR. GRUBE: (Attorney for the Defendant Lautz)
Q. Witness, please state your full name.
A. Helmut Boden; attorney and notary at Berlin-Wilmersdorf.
Q. Were you a member of the Nazi Party?
A. No.
Q. Since when did you defend clients before the People's Court?
A. Since the institution of the People's Court -- I guess that was during the summer or fall of 1934.
Q. And until the year 1945?
A. Yes until the year 1945, that is April of 1945.
THE PRESIDENT: Would you state your name again?
A. Helmut Boden, attorney and notary at Berlin-Wilmersdorf.
Q. Witness, did you appear before the People's Court as a freely appointed defense counsel, or were you appointed by the court?
A. I appeared there as a defense counsel chosen by my clients as 'well as a counsel appointed by the court.
Q. Can you tell us what was the reputation of the defendant Lautz, when in 1939 he assumed the office of Chief Reich Prosecutor at the People's Court?
A. The defendant Lautz, if I remember rightly, had formerly been General Public Prosecutor at the District Court in Berlin. The majority of cases, consisted of Berlin attorneys. Therefore, they knew Lautz from former days per serially, or they knew him by name. The reputation which he had formerly enjoyed was as good as it possibly could have been.
He was considered an objective person. His reputation was really a good one.
Q. Was Lautz considered a very severe man?
A. No.
Q. What observations, with reference to Lauez, did you make during the subsequent years?
A. I found that the reputation which Lautz had had before, was confirmed when he assumed the office of Chief Reich Prosecutor with the People's Court.
Q. Were any difficulties made to the defense counsel, in preparing and carrying out their defense?
A. No.
Q. Did the defense counsel have difficulties when they wished to look into the files?
A. No, but I must point cut that only after a certain date which is laid down in the penal code of procedure was it permissible to have a look at the files.
Q. But was it not possible for you, inspite of that, before that time limit fixed by the law to inform yourself in detail as to the charges against the defendant, and how to carry out your defense?
A. Yes. If defense counsel in good time before the indictment had been filed had been asked to take over the defense of a defendant, either by the defendant or by his relatives, the defense counsel was in a good position to obtain information about the proceedings -- by, for example, talking to the expert at tho Reich Prosecuting Office; where he heard the charges which had been made against the Defendant. Then he knew how to prepare his defense.
Q. Is it correct to assume that you acted as defense counsel in cases which were connected with the attempt on Hitler's life on 20th July, 1944?
A. Yes.
.
Q. What general observations did you make concerning the defendant Lautz?
A. That the defendant Lautz repeatedly acted as the prosecutor and that in his applications, and in accordance with the facts of the case he was moderate and objective.
Q. Did he ever become aggressive toward the defendant or the defense counsel?
A. I never say that happen. .
Q. Do you know what instruections Lautz had given to the three public prosecutors who had to work on the cases concerning the 20th of July, 1944 incident?
A. Yes, I remember one instance. I had had a discussion with the public prosecutor Harzmann about some case in connection with the incident of 20th July 1944. The presiding judge of the senate was almost always Freisler, who was very severe. The Reich Public Proseouting Office knew that too. Therefore, Harzmann told me: "You know the tendency of the senate, and that has caused us to be lenient." Perhaps this is not a literal version of his words, but I am sure they arc correct as far as their meaning is concerned.
Q. What did you ever hear from other quarters about Lautz' attitude toward the defendants who were connected with the 20th cf July, 1944 incident?
A. Nothing that was against him. I should like to say that the attitude cf the defendant Lautz was in fact of the type which Harzmann, the public prosecutor, had described to me.
Q. Is it correct that Lautz, after General Herfurth had been sentenced, intended to make a clemency plea?
A. Yes, the Herfurth defense counsel Neubert, the president of the lawyer's chamber in these days, told me the Herfurth case was to say the least doubtful. A death sentence had been passed. Neubert told me that the defendant Lautz had told him that he had dropped the hint to higher authorities to the effect that the execution of the death sentence on Herfurth was not to be carried out for the time being.
However, the sentence was executed, but as far as my information from Neubert does, that happened because the clemency plea department cf the Ministry cf Justice apparently immediately reported to the Minister who ordered execution.
Q. Did you have any criticism to make concerning the procedure of of the Reich Public Prosecutor in connection with the plot of 20 July 1944?
A. No.
DR. GRUBE: Thank you, I have no further questions.
DR. DOETZER: For the defendant, Nebelung:
Your Honors, may I continue?
BY DR. DOETZER:
Q. Witness, has the prosecution already examined you on the subject cf the People's Court?
A. Yes, that is to say I don't know whether it was the Prosecution. At Berlin I was interrogated twice. Once I was interrogated by Mr. Corsing, and the other name I don't remember at the moment.
Q. Have you deposed by affidavit?
A. Yes, I have deposed in two affidavits.
Q. Did one of those affidavits or both refer to the defendant Nebelung?
A. As far as I remember it was the second affidavit which referred to the defendant Nebelung.
DR. DOETZER: May it please the Court. Would you allow me to interrupt for a moment? At an earlier date the Prosecution produced here a part of an affidavit deposed by the witness Boden. That portion of the affidavit has not been introduced here. It is possible that the whole of the affidavit of which we say only a portion in the course of the proceedings may be introduced by the Prosecution. In that case I did not wish to make the witness Boden my witness but in respect of the statements made with reference to the defendant Nebelung I should like to cross examine him. Perhaps that question which arose here in a similar form once before could be cleared up by the Prosecution, as in a former case -- I am referring to the Suchemel case -- telling whether it is going to submit such an affidavit or not.
MR. KING: Of what affidavit does counsel speak?
DR. DOETZER: I have just asked the witness whether he had deposed an affidavit and he said he had. A portion of an affidavit was distributed to us here in the Court at an earlier date with ether documents and from this we could see that the witness had deposed an affidavit for the prosecution.
MR. KING: as I recall, the witness gave several affidavits to the Prosecution and at the moment I do not know of which one counsel speaks.
THE PRESIDENT: Do you have any affidavit which has not been introduced in evidence and which you propose to introduce in evidence, from this witness?
MR. KING: At the moment, Your Honor, I am not prepared to say, I think it depends rather largely on what evidence remains to be proved after the Lautz case is in. It may be we will find it necessary to introduce it as a rebuttal exhibit but at this moment, Your Honor, I am not prepared to say definitely that this will or will not be the case.
THE PRESIDENT: The Prosecution has rested it's main case and has not introduced it. It has introduced only those affidavits which are already in evidence. If you have any desire to attempt to impeach any testimony made by this witness it will have to be done at this time, that is, before he is excused. We cannot rule now as to what your rights may be in rebuttal.
MR. KING: We did not intend to use the Boden affidavit to impeach this witness at this time.
THE PRESIDENT: It could be used, if at all, only in rebuttal.
MR. KING: That is right.
THE PRESIDENT: And as yet we have not heard the Nebelung case and cannot tell whether it would be permissable in rebuttal or not.
MR. KING: That is correct.