The following is not quite clear in this procedure. Did Groben on the basis of his own opinion of the legal situation, after the interrogation of the witness Seiler, reach the conclusion that the warrant of arrest was unjustified? Then, in this case, he would not have had to give a hint for the filing of an appeal against the arrest, but in accordance with the mandatory legal regulations had to rescind his warrant of arrest but that he did, so to say, provoke an appeal against the arrest can be explained only from his endeavor to avoid this decision which it was his duty to make, and to transfer the responsibility to the court that has to decide about the complaint. After the complaint against the arrest had been filed, the obligation again was his to examine whether he wanted to continue the warrant of arrest -- to maintain it. If he rescinded the warrant of arrest, then as it says in Article 306 of the Code of Criminal procedure, he has immediately to send the complaint against the arrest, together with the files, at the latest after three days to the court deciding about the complaint. But he did not undertake any stops in that direction; even at this time he did not rescind the warrant of arrest, but obviously wanted the prosecution to make a statement, and this statement could only be the application according to Article 126 of the Code of Criminal Procedure, the application of the prosecutor to rescind the warrant of arrest. This obligation is the only binding application in the Code of Criminal procedure, that is to say, in such a case the judge is not permitted to examine whether the application is justified or whether it is not, but he has to comply with it. The responsibility for rescinding a warrant of arrest, thus however, is transferred from the judge to the prosecutor.
Thus, this is my understanding of these events. Groben wanted to avoid a decision under his own responsibility.
THE PRESIDENT: You have already stated that. You have expended your view as to his motives at great length, and you need not repeat it.
Q And now as to the question of the administering of oath to Seiler, and the arrest of Katzenberger. How did Groben get possession of the files?
A The question was important already once before. This is how it was. The police -- through interrogation of the witnesses, the defendants, files are compiled. If these investigations are concluded, then these police files are forwarded to the prosecution and later to the courts. Here it was a so-called case of "being brought before the judge" (Vorfuehrungssache), that is to say, a man is arrested by the police and brought before a judge to decide the question of arrest. In order to afford the opportunity to the judge to examine that question, the police files are submitted to him and these police files thereafter become a part of the court files.
Q But what is the opinion of the judge in the trials based upon?
THE PRESIDENT: That question has been answered repeatedly.
DR. KOESSL: All right.
THE PRESIDENT: We are depending upon counsel. Counsel knows when a question has been asked before.
DR. KOESSL: Unfortunately I did not get the German translation.
THE PRESIDENT: I stated that you know when you have asked a question before, and when the answer has been given before. You must avoid this repetition.
DR. KOESSL: Yes, Your Honor.
Q From the Katzenberger opinion, can it be approximately determined what material Groben had at his disposal when he was for the release of Katzenberger and was confronted with the question of taking Seiler under oath?
A The lack of files itself is especially important here, but it is like this: In the essential points one can see from the written opinion approximately what documents the investigating judge had when he had the investigation about the warrant of arrest.
THY PRESIDENT: Next question.
Q On the basis of what regulations of the code of procedure did Groben act when issued the warrant of arrest?
A This is Article 125, Section 3, of the Code of Criminal Procedure.
Q What prerequisites have to exist for issuing a warrant of arrest?
A The most important thing is urgent suspicion of the offense.
Q And where is this?
A In Article 112.
10-1-M-GW-20 Aug 47-Sampson (Int-Wartenburg)
Q. I oder to issue a warrant of arrest, does the defendant have to agree to it?
THE PRESIDENT: You needn't -
A. Of course not.
THE PRESIDENT: Answer that question. The answer is stricken; the question is stricken.
Q. Reading excerpts no from Groben's advice-that a great deal was against him at the moment. I assure him that I am continuing to think of the case and shall release him of course immediately as soon as further investigations should show that his presentation of the facts were correct. Katzenberger understood this, and in order not to delay the proceeding unnecessarily did not file a complaint against the warrant of arrest. What do you have to say about that?
A. This instruction about the probable outcome of the warrant of arrest as absolutely out of place, and moreover, they were wrong because the complaints against the arrest were usually after approximately twenty-four hours decided. According to the regulations of the law, these proceedings had to be carried out with the utmost speed.
Q. The advice which Groben gave, was it correct and did it serve its purpose?
A. I have already stated my opinion on that just now.
Q. could the investigating judge in this stage of the proceedings develop its own initiative?
A. He could not only display his own initiative, but he had to display it according to Article 166 of the Code of Criminal Procedure. According to 10-2-M-GW-20 Aug 47- Sampson(Int-Wartenburg) this the investigating judge has the duty, in particular in cases of arrest, without the prosecutor making a corresponding application:
if possible immediately to examine all important evidence that he can obtain and to interrogate himself. The correct procedure in the case here at hand would have been if he in the Katzenberger case, and I am starting with his own idea of legal situation, would immediately have called the witness Seiler. Instead, it took months again until this step was taken.
Q. From the testimony of the witness Seiler in this trial, it is apparent that the warrant of arrest against Katzenberger was issued in March, 1941; that the investigation by the investigating judge Groben, on the other hand, took place only in July, 1941. In the interim, could a decision have been made about a complaint against the warrant of arrest against Katzenberger?
A. I would like to emphasize that I myself no longer recollect these temporal relationships. I can only say roughly that between the arrest of Katzenberger and the first interrogation of Seiler by the judge, months elapsed. In this interim of course dozens of complaints against arrest could have been decided, for one has to take into consideration that in our procedure an unlimited number of complaints against arrest, and pleas for rescinding the arrest, can be made. There is no legal force of a warrant of arrest; thus, it is like this. If a complaint is rejected today, then it can be renewed tomorrow; and the day 10 -3-M-GW-20 Aug 47-Sampson(Int - Wartenburg) after tomorrow the prisoner can make a plea to have the warrant of arrest rescinded.
Q. On what legal basis is the complaint based?
A. On Article 304 and the following articles of the Code of Procedure.
Q. What is the further course of the plea?
A. The plea is filed at that office whose decision is being contested; this office then has to make a decision, namely, whether it wants to maintain its own decision or rescind it. It can avail itself of that opportunity; if it does not avail itself of that opportunity, than the plea, as it says in the law has immediately, or at the latest, after three days, be submitted to the court of appeal and the court of appeal has to decide whether it affirms the decision of the lower court or not.
Q. Can the investigating judge in considering the question of rescinding of a warrant of arrest take into consideration that perhaps further incriminating material would be received or would be obtained?
A. Of course he cannot take that into consideration, but he has to decide the question whether a warrant of arrest is justified or not, that is in effect, whether there is a great deal of suspicion that the offense was committed and he has to judge according to the material which he has available. And if this material is not sufficient, then the warrant of arrest has to be rescinded. This is the meaning of the law.
Q. What happened between the arrest of Katzenberger in March, 1941, and the interrogation of Seiler in July, 1941?
A. I am not in a position to judge that, and also I cannot recall it at any rate-
10-4-M-GW-20 Aug 47-Sampson(Int-Wartenburg)
THE PRESIDENT: You don't know tho answer. Ask another question. He doesn't know the answer.
Q. What was the position of the investigating judge and the prosecutor in regard to the warrant of arrest?
A. The man who is in control of the arrest proceeding is absolutely independent of the prosecutor, and he is the investigating judge. The man who is in control of the investigating proceeding is independent of the investigating judge, he is the prosecutor. This legal situation changes only after the indictment has been filed at tho court where the case is to be tried. For that reason, the investigating judge can rescind the warrant of arrest at any time through official channels. On the other hand, the prosecutor too, who is a master of the investigating proceedings, and in that capacity has to examine the question as to whether a proceeding will possibly be carried on or not, has the right at any time to ask for the rescinding of the warrant of arrest, and application which the investigating judge, as I have already explained, has to comply with.
Q. On which regulation of the code of legal procedure is the duty of the investigating judge based immediately to rescind the warrant of arrest and through official channels without an application by the prosecutor if he is of the conviction that there is no longer any reason for the arrest.
A. I have already answered that question.
Q. Did the investigating judge Groben act in accordance with that regulation after he had finally interrogated this Seiler?
10-5-M-GW-20 Aug 47-Sampson(Int-Wartenburg)
A. I have already dealt with that question too.
Q. I am now putting Groben's affidavit to you and reading to you literally how he viewed the situation after he had interrogated Seiler. Since there was no reason for me to have any doubts against the correctness of the testimony under oath of Seiler, it was clear to me that I could no longer keep Katzenberger under oath. Therefore, I informed lawyer Dr. Herz about the result of that interrogation, and gave him to understand that this was the appropriate time to complain against this warrant of arrest-
THE PRESIDENT: The witness just reviewed that same testimony himself, within the last half hour. The Court dislikes having to interrupt you so frequently, but it is entirely up to you to limit your questions. If you don't limit them yourself, the Court will limit you with increasing severity.
Court No. III, Case No. 3.
BY DR. KOESSL:
Q Groben said that he gave a hint to the defense counsel.
THE PRESIDENT: The witness has discussed that matter and explained why he thinks that Groben did it. We remember the testimony.
BY DR. KOESSL:
Q All right. Did you consider the warrant of arrest justified?
A Of course, due to my point of view, the one I later took up; otherwise I would not have rejected the complaint against the arrest.
Q How does it happen, then, that you reproached the witness Groben?
THE PRESIDENT: You disagreed with him, didn't you?
BY DR. KOESSL:
Q You were not in agreement with Groben's procedure?
A I have already stated that there was some dispute in regard to two points. One point was the question-
THE PRESIDENT: If you have already stated it, don't state it again.
THE WITNESS: On the other hand, it was in regard to the arrest or non-arrest of Katzenberger.
THE PRESIDENT: Now, just a minute.
BY DR. KOESSL:
Q Is it possible that the procedure that Groben adopted was due to an erroneous interpretation of the German Code of Legal Procedure?
I will repeat: Is it possible, witness, that Groben's procedure was based on an erroneous interpretation of the German Code of Legal Procedure?
A That is impossible, because the German Code of Legal Procedure, on that point, gives the legal procedure of that situation in absolutely unequivocable language, and everybody who has to deal with that knows that in his sleep.
Q Can you tell us what statements Seiler made which caused Groben to arrive at the conclusion that the warrant of arrest was not justified?
Court No. III, Case No. 3.
THE PRESIDENT: Let me ask you first, what is the source of your information as to what Seiler told Groben?
THE WITNESS: I would have to use the opinion, because that seems to be the only thing that remains from the Seiler file.
THE PRESIDENT: You mean the opinion of the Court?
THE WITNESS: Yes.
THE PRESIDENT: We have read that.
DR. KOESSL: May it please the Tribunal, with that I have concluded one chapter. The examination of the witness showed--perhaps yesterday, but certainly today--that at the present time I am in such a bad state of health that it is impossible for me to continue the examination of the witness. Therefore, I wish to request the Tribunal to permit me to make a small pause for the time being, by perhaps having a colleague of mine present documents, or perhaps having the next defendant enter the witness stand. I am, in fact, not in a position to assume the responsibility.
THE PRESIDENT: We will permit your colleague to present documents, but we desire to complete this defendant's testimony before taking up the case of any other defendant.
DR. KOESSL: Yes.
THE PRESIDENT: The prosecution has some matters for 1:30 this afternoon. We will recess now until 1:30 this afternoon.
MR. WOOLEYHAN: Your Honor, at what point in this somewhat irregular procedure am I expected to cross-examine? After the conclusion of his final direct?
THE PRESIDENT: Yes. We expect to proceed with the examination of this witness, subject only to the intermission during which time some documents may be put in for the convenience of Dr. Koessl.
DR. KOESSL: Yes, your Honor.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The Tribunal reconvened at 1330 hours, 20 August 1947)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Dr. Koessl, in view of your statement this morning, we will not require you to proceed with the examination at any time this afternoon. You may be prepared to proceed with the examination of the defendant Rothaug tomorrow morning at 9:30, and we will excuse you until that time if you desire.
DR. KOESSL: Thank you very much.
MR. LA FOLLETTE: I would like to have Dr. Peter Stern called, your Honor.
DR. PETER STERN, a witness, took the stand and testified as follows:
MR. LA FOLLETTE: I would like to have the witness sworn.
JUDGE HARDING: Hold up your right hand and repeat after me:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath).
JUDGE HARDING: You may be seated.
DIRECT EXAMINATION BY MR. LA FOLLETTE:
Q. Doctor, do you care to testify in English or in German.
A. I would prefer to answer in English.
Q. Answer in English? Thank you.
Will you state your name please?
A. I am Dr. Peter Stern, born in 1919, and I am a resident physician of the City Hospital in Nurnberg and ward physician of Ward 32, first floor. And in this capacity I am the treating physician of the defendant Engert, who is in this ward.
Q. That is the defendant Karl Engert, who is a defendant in this case before this Tribunal
A. Yes.
Q. When did you last make an examination of the chart and record of the defendant Engert?
A. I make routine examinations of the defendant Engert every day. Yesterday I made a closer examination on his present state of health.
Q. Will you report briefly, but as adequately as necessary, the results of that finding, particularly having reference to whether or not you find a chronic condition, and the result of that condition?
A. Yes. The present state of health of the defendant Engert has developed into a chronic disease. He was admitted into the hospital at 19 April 1947 with acute cholecystitis and hydrops of the gallbladder and arteriosclerosis and occipital neuralgia. The acute state of that disease is over, but still a chronic disease is present. This is mostly --- the diagnosis today is a chronic cholecystitis, a beginning arteriosclerosis , a hypertension, and occipital neuralgia.
Furthermore, there is a prostatic hypertrophy of first degree, which causes considerable discomfort because the patient has to urinate every ten minutes.
THE PRESIDENT: Every ten minutes?
THE WITNESS: Yes.
A.(Continuing) Now, the policy of the hospital is that we do not keep patients who develop into a chronic state because we are very short of beds, and particularly, we have to keep Engert in a separate room and cannot put other patients in that room, which we need badly for serious cases.
Now, for ordinary German patients, we put those patients either into sanitariums in the country, or sometimes we have to release them back home. So we would appreciate it, if it could be done, that the patient Engert could be transferred perhaps to Garmisch or to another installation, so that we can keep the beds free.
Q. As a result of your examination, that you have reported, I ask you whether or not, in your opinion, the defendant Karl Engert is now competent, physically competent, or will be within the next 30 days, to appear in this courtroom and sit in this courtroom.
A. We do not consider that the state of health of the patient Engert will improve in the next time and further times. If he has to remain in the prison and has to stand the strenuous trial here, we do not believe that he can do this.
Q. Would it be your opinion whether or not it would be seriously injurious to his health for him to be taken from a hospital and put into a prison as an ordinary prisoner?
A. Well, it is rather dangerous, because the hypertension he has ranges from a blood pressure of around. 200, and in case he is under a psychological strain, we might fear an apoplexia. And this, of course, is rather a risk for his health.
Q. And, as I understand it, there is a shortage of beds in the German hospital in Nurnberg where he is now located?
A. Yes.
Q. And those beds are needed for patients with acute diseases or maladies which can be cured?
A. That is right, sir.
MR. LA FOLLETTE: I have no further questions of the witness.
THE PRESIDENT: The witness is excused.
(Witness excused)
MR. LA FOLLETTE: Is Dr. Martin here?
This Court, of course, takes judicial notice of its own records. However, I would like the Secretary General in the courtroom to advise me of the number of court days in which this Tribunal has been in session in the trial of this case.
THE SECRETARY GENERAL: This is the 92nd day.
MR. LA FOLLETTE: I beg your pardon?
THE SECRETARY GENERAL: Today is the 92nd day of this trial, exclusive of the two days of the Marx hearing.
MR. LA FOLLETTE: Do your records show how many of those 92 days the defendant Karl Engert has been present in the courtroom?
THE SECRETARY GENERAL: The defendant Engert was absent on the 7th of March, which would be the third day of court.
MR. LA FOLLETTE: Has he been continuously absent since that time, according to the records of this Tribunal?
THE SECRETARY GENERAL I would have to take a few moments to check that.
MR. LA FOLLETTE: All right.
Has Dr. Martin come?
I am sorry, Your Honors, I thought I had done all that I could to get Captain Martin here.
DR. ROY A. MARTIN, a witness, took the stand and testified as follows:
MR. LA FOLLETTE: If Your Honors please, I would like to have Captain Roy Martin be sworn.
JUDGE BLAIR: Hold up your right hand and be sworn.
Do you solemnly swear that the testimony you shall give in this case shall be the truth, the whole truth, and nothing but the truth, so help you God?
THE WITNESS: I do.
DIRECT EXAMINATION BY MR. LA FOLLETTE:
Q. Captain, will you tell the Tribunal your name and your profession in your present assignment?
A. Roy a. Martin. I am the Medical Officer assigned to the Justice Prison.
Q. As such, are you acquainted with the physical condition of Karl Engert, who is a defendant in this Court?
A. I am.
Q. When did you last make an examination of either the defendant in person or of the charts and records showing his physical condition?
A. I last examined him the 19th of August.
Q. Have you examined his charts and records subsequent to that time?
A. I examined his charts also the 19th of August.
Q. As the result of that examination, I ask you whether or not in your opinion it is possible for the defendant to be present in this courtroom as of today or for any predictable time within the next 30 days?
A. It is not possible that he will appear here within the next 30 days.
Q. Will his appearance, in your opinion, seriously injure his present physical condition?
A. His appearance would be detrimental to his physical condition.
Q. From you knowledge of his physical condition, your examination of the defendant Karl Engert and of his charts and records, will you state to the Tribunal whether or not he could be kept in the Nurnberg prison without endangering his health?
A. He could not be kept in the Nurnberg prison without endangering his health.
Q. Is there, to your knowledge, a hospital or a facility operated by the Government of the United States for prisoners who are either prisoners of this Tribunal or prisoners of the Government of the United States who are ill? Is there such a hospital at Garmisch?
A. There is a civilian internment hospital in Garmisch.
Q. It is an internment hospital?
A. It is not operated by the United States Army.
Q. To your knowledge, can you state whether or not German civilians who are interned have been sent to that hospital from here?
A. We send our prisoners to that hospital.
Q. At Garmisch?
A. At Garmisch.
Q. Do you know about how far Garmisch is from here?
A. It's approximately 150 miles.
Q. What is your opinion as to whether or not the defendant Karl Engert should be transferred to Garmisch from the hospital in which he is presently located?
A. In my opinion it would be advisable to transfer him to the Garmisch Hospital.
Q. Are you acquainted with the condition in the German hospital in Nurnberg in which the defendant Engert is now a patient, as to whether or not there is an acute need for beds for acute patients?
A. Well, there is a crowded condition in the Nurnberg City Hospital, and ordinarily they do not take chronic cases such as the case of Engert.
Q. That is all.
THE PRESIDENT: You are excused.
(Witness excused)
MR. LA FOLLETTE(to the Secretary General): Do you have an answer for me?
THE SECRETARY-GENERAL: The defendant Engert has been absent from this courtroom since the beginning of the 7th of March continuously.
MR. LA FOLLETTE: Thank you. If the Court please, on the basis of the medical testimony and the records of this Tribunal, which show that the defendant Karl Engert has been absent 91 of the 92 court days, and on further showing that his condition is now acute, the prosecution, in view of the provisions of Article IV, of Ordinance VII, sub-paragraph D of Article IV, which states that every defendant shall be entitled to be present at his trial, except that a defendant may be proceeded against during temporary absences, now moves the Court to declare a mistrial in this case against the defendant Karl Engert, and that the Court should now make such orders that shall be deemed proper in the premises in preserving the statue quo of that clause under the inductment.
THE PRESIDENT: What does the defendant, by his counsel, Dr. Link, have to say on this motion?
DR. LINK(For the defendant Engert) The medical expert opinions by Dr. Stern and Captain Martin which have just been stated here are in absolute accordance with the picture which I, as a layman in medicine, have formed for months in my mind. I can only state again that I adhere to the motion for severance which was made by my predecessor on the 7th of June, and can assure the Tribunal and inform it that already for sometime it was impossible to build up a somewhat appropriate defense together with Engert, in spite of the fact that I visited him daily at his sick bed. It seems to me to be not entirely irrelevant that now the German chief physician, Dr. Kraetzer, one of the two physicians who filled out the well-known questionnaires, adheres to the point of view expressed by the physicians who were examined here today. An expert opinion which she gave me a short time ago said that Engert was not able to stand being held in a prison nor to appear in Court. The contradiction, which seems rather surprising to the defense in the way in which the questionnaires were answered at the time, is thus also removed. I also agree to the motion by the prosecution which asks for severance of the case of my client and may I again refer to the motion of the 7th of June.
Furthermore, may I add the thought that the transfer of the defendant Engert to Garmisch, would increase the handicap which has existed in fact already for sometime to build up a somewhat proper defense for the defendant Engert. Thus I may say that with his transfer, every possibility is taken away from me to act on behalf of the defendant Engert in any responsible manner. Furthermore, I believe that I may understand the motion made by the prosecutor to mean that Engert is not longer to be tried by the Court in this trial here.
THE PRESIDENT: The situation which is presented to the Tribunal is a most unfortunate one, and one which we very keenly regret. This Tribunal has at all times been desirous of performing its duty, and a part of that duty which was imposed upon us was to try the defendant Engert.
It now appears that it is impossible for us to perform that duty and at the same time to conform to our higher obligation which is to give to every man a fair trial. The evidence satisfies us now, although we have been slow to come to that conclusion, that the defendant Engert is not in a condition whereby he could fairly be compelled to come to Court or could fairly defend himself if he came. The motion which is in the language of Anglo-American law is that a mistrial be declared. That means that the indictment will stand against the defendant Engert, but that he can no longer be tried in this particular case with these other defendants. The motion is allowed.
MR. LA FOLLETTE: May the prosecution simply state that it agrees with the statement of the Court as to the unfortunate character of this situation which has arisen. The prosecution has felt it could prove the defendant guilty; otherwise it would not have indicted him. But the prosecution also has an obligation not to ask that the case be continued and that the Court be put in a position of trying a man, thereby flying squarely in the face of an ordinance which provides for him to be present so as to make an adequate defense. Under those circumstances, the prosecution also feels that it must conform to a higher obligation and make this motion, and it has so done.
THE PRESIDENT: I might add that our opinion is that the extent of the absence of the defendant Engert has exceeded the limits of a temporary absence under the law.
MR. LA FOLLETTE: That is the way the prosecution was forced to construe the ordinance. In view of the fact that the Tribunal has now ruled on the motion and has declared that Dr. Koessl may not proceed --I state that the prosecution is not in a position to defend against any other matters and requests the Court to now recess until tomorrow morning at nine-thirty.
