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.
THE PRESIDENT: The Tribunal will recess now until tomorrow morning at nine-thirty.
(The Tribunal adjourned until 21 August 1947, at 0930 hours.)
Official Transcript of American Military Tribunal 111 in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 21 August 1947, 0930-1630. The Honorable James T. Brand, presiding.
THE MARSHAL: The Honorable, the Judges of Military Tribunal 111. Military Tribunal 111 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 the defendant Engert, who is absent due to sickness, and the defendant Barnickel, who has been excused.
THE PRESIDENT: The case of the defendant Engert has been disposed of by order of the Court yesterday. The defendant Barnickel, at the request of his counsel, is absent for this day only in order to assist him in the preparation of his defense, but he is excused by the Tribunal.
DR. KOESSL (for the defendant Rothaug): May I continue, please?
DIRECT EXAMINATION - continued BY DR. KOESSL:
Q Witness, what is it due to that after the interrogation of the witness Seiler, the investigating judge Groben considered that the warrant for arrest had been unfounded, whereas prosecutor Markl, on the basis of the same situation, as evident from the files, did not stop proceedings but filed an indictment with the Penal Chamber?
A That was due to their different evaluation of the concept which was decisive for the entire question--that is to say, the concept of sexual intercourse within the meaning of the racial laws. Groben evidently assumed that sexual intercourse within this meaning meant cohabitation; whereas Markl, basing himself on the jurisdiction of the Reich Supreme Court which had gone very far on that question, by a sexual intercourse understood all activity in the sexual field. Markl evidently in applying for the witness being taken under oath was anxious to find out whether the witness under oath would still admit that certain delicate situations had occurred; whereas Groben assumed that by administering the oath, one wanted to discover whether beyond that situation the witness would also admit that she had slept with the defendant.
Since the witness had disputed that had occurred, Markl -- no, Groben assumed that there was no reason why the warrant for arrest should have been issued. On the other hand, however, the witness had sworn to it that the situations which have already been mentioned here had occurred--a fact which caused Markl to affirm all reasons why the indictment should be filed.
Q What was your personal point of view concerning that question?
A In my view, the fact that the oath had been administered to the witness, had gained us nothing and the situation had remained the same as far as the facts and the evidence were concerned; the question as to whether the oath was to be administered to the witness should have been decided at the trial. As it was a case of circumstantial evidence, that procedure would have offered a more adequate and more certain basis for the solution of that question than the evidence of the files, which was rather scanty at that time.
Q What do you have to say about the charge that you had caused the perjury proceedings against the Seiler woman?
A In connection with the examination of the appeal against arrest on the part of Katzenberger, we were naturally forced to deal with the question as to what extent the statements by the Seiler woman corresponded with the truth. What was particularly important were the statements which she had made under oath before the investigating judge. The question was whether that statement was credible. We were unanimously of the view--we, at the chamber that had to deal with the matter--that her statement was incorrect, to say the least, on the point where the witness maintained that concerning the delicate situations to which she had admitted she had only considered them to be sensual but not sexual situations.
All the same, to start with, I advised against issuing a warrant of arrest for the Seiler woman because the situation as a whole did not appear to me to be sufficiently clarified to warrant a measure that went as far as that. Furthermore, I was bothered by the idea that in that situation, if more care had been taken when the oath was administered, a great deal of trouble could have been saved. That question and the question of instituting proceedings against the Seiler woman was to be left to the result of further investigations that were to be made.
As to when the prosecution decided to institute proceedings against Seiler based on the charge of perjury and as to what further investigations had been made by that time, that I cannot judge, for I did not pay any attention to further proceedings. They didn't have anything to do with me. For the rest, the objective violation of the oath was only all too evident from the transcript.
Q It has been asserted that you had coupled together the Katzenberger and Seiler proceedings as to exclude the Seiler woman as a witness. What was the situation there?
A Under the German code of procedure, there are always as many penal proceedings pending as there are defendant. Under certain conditions, such penal proceedings can be tried together for the purpose of uniform trial and decision. That is what we call joinder of penal cases. That joinder may be decided by the Court, concerning cases which are pending with it separately. But such joinder may be established by the prosecution itself--that is done by the prosecution instituting proceedings by one indictment. With such combination of several proceedings in one indictment, the joinder has been established. That was what was done in the Katzenberger-Seiler case. The prosecution, by filing one indictment for both defendants, had already established the joinder prior to the files reaching the court.
The joinder of the two cases was therefore neither due to a file prepared by me nor to a file prepared by the Court.
Q Would it have been possible for the prosecutor to proceed differently?
A Naturally. He could have filed separate indictments. The question was merely whether that would have been correct from the technical point of procedure.
Q What are the legal provisions on which a joinder of penal cases was based at the Special Court?
AA joinder is based on Article XV, Section 2 of the Competency Order.
Q When do the conditions exist for a joinder, such as demanded by the law?
A Such conditions can arise from all sorts of situations. They exist in particular if one offense developed from another offense, and if the judgment has to be based on the same facts. That was the case in the Katzenberg-Seiler affair, which we have been discussing.
Q That was the reason for the prosecutor in this particular case to connect the two cases?
A Both cases, as is proved clearly by the opinion of the court, had to be decided on the basis of the same facts. Therefore, a joinder was altogether natural and corresponded to the customary treatment such as was applied in other cases as well.
Q What was the legal nature of such a joinder?
A It was purely a measure of technical procedure which not only in this case but whenever it is adopted has to be judged by standards of expediency.
Q Is a defendant entitled to ask for not combining his case with that of another defendant because in the case of a joinder he loses evidence?
A The defendant does not have such a claim.
According to the general legal doctrine, which existed prior to 1933, a joinder is admissible even if as a result of a joinder one co-defendant can no longer appear as a witness. But if it is decisive that the co-defendant should appear as the witness, the two cases can be separated after all so as to have an opportunity to examine the co-defendant as a witness. But that is left entirely to the discretion of the court, and the defendant has no claim to have that question decided in one definite way.
Q When several penal cases are combined, does that mean that all possibility is excluded to examine one of the co-defendants in the same proceedings as a witness? I would like you to supplement your previous answer and to tell us whether it is possible temporarily to separate proceedings.
A Such temporary separation is allowed expressly by jurisdiction. Therefore, during one proceeding, temporarily a separation can be ordered. One co-defendant can be examined as a witness, and after he has been examined the case can be recombined.
Q Didn't at any time anybody -- be it the prosecutor, the defense counsel, or the defendants -- during the trial make a motion to separate proceedings?
A Such a motion was not made either at the trial or outside of it by anybody. Not even the mere idea of doing that was ever mentioned, and the reason was that at that time nobody regarded the joinder of the two cases as a defect.
Q Ferber in his affidavit, which has already been quoted, says that ha pointed out that divorce proceedings could also be discontinued when it had been established that a witness had committed perjury. Has that idea anything to do with the question which we are discussing now?
A That idea is quite off the mark. It is correct to say that under article 148 of the Code of Civil Procedure, for instance divorce proceedings -- that is to say, civil proceedings -- may be discontinued if the question that a witness has committed perjury arises, and that the civil judge may wait for the end of penal proceedings which have been instituted, without, however, being tied by the outcome of such penal proceedings. On the other hand, the penal proceedings also have the legal possibility of discontinuing proceedings if a question of civil law turns up during the penal proceedings. That is the parallel case for the example which Ferber has quoted. In one case, we are concerned with the question of penal law arising in the sphere of civil law before a civil court, and on the other side we are concerned with the question of civil law arising in the field of criminal law before a criminal court. But in our case, a question of penal law arose before a penal court, and the question had to be solved on the basis which I have mentioned, that is to say, according to the principles and the doctrine of joining penal cases.
Q In the case under discussion, was it likely that the chances of the two defendants might be affected by joining their cases?
AAs I have stated before, the legal position of the defendants could not be affected, and their chances were not affected either. If one had thought that their chances might be affected, I think in that case the two defense counsel would have made a motion to have the two proceedings separated. If one wishes to judge the situation properly, one has to bear in mind the following; that is to say, one has to think of the situation such as it would have been if the Seiler woman had not been a codefendant but a witness.
In that case, she would have made no different statements at the trial than she had made at her interrogation under oath before the investigating judge, for she made the same statements as a co-defendant, and we had to discuss her statements under oath before the investigating judge from every point of view for the purpose of the verdict. What difference would there have been, as far as our judgment was concerned, if she had repeated the same statements at the trial in her capacity as a witness? The real problems of the proceedings would not have been affected in any way by that and they could not have been affected.
Q. Did the fact that the two cases were tried together not also mean that there were particular opportunities?
A. Trying the two cases together, not only in this proceeding but in all proceedings, constituted a certain danger in so far as co-defendants, while the trial is progressing are no means of evidence. As a consequence -- I want to correct that. The cases are only tried together until the time of the judgment. After the judgment, therefore, codefendants may be called as witnesses, and for the reopening of a trial they constitute new evidence when they appear as witnesses because at the trial, in consideration of the fact that they were co-defendants, they had not been heard as witnesses. Therefore, after the conclusion of the trial, one of the co-defendants could call the other co-defendant as a witness at the retrial.
Q. Was an attempt made to have the case retried?
A. No attempt was made to have the case retried. Oh, yes, may I correct a reply now which I gave some days ago in answer to a question which one of your Honors put to me? I was asked whether Poles and Jews would have been able to take legal recourse, that is to say, were able to ask for their case to be retried. In reply to that question I said that during the time when I was a judge, Poles and Jews did have that opportunity. That question has to be answered in the affirmative, for certain in the case of Jews who did not cone under the law against Poles and Jews, that is to say, for Jews who lived in Germany and who were German citizens, limited to the time of which I spoke.
What happened later I don't know. I did not follow developments. In the case of Poles, I assumed until now that the limitation that only the public prosecutor could use such legal remedies referred only to the Polish territories themselves and not to the Reich. I am not yet clear about that but I admit the possibility that limitation also referred to Poles who were working in the Reich.
Q. Witness, the Witness Bauer, in Exhibit 157, mentions that shortly before the date at which the trial opened he had been to see you at your office because he had been asked to give an expert opinion on Katzenberger.
He says that you had said that such expert opinion was merely a matter of form. Bauer says that you had said that such expert opinion was merely a matter of form. Bauer says that he asked you at that time whether, in the case of that old man, there had really been a case of racial defilement. You are supposed to have said it was quite enough for you if the swine had admitted that a German girl had been sitting on his lap. It goes on to say that you had been rung up by the Gauleadership or Haberkern and you had apologized because the date for which these big wigs had been invited had to be postponed.
"In answer to a further question, which naturally I did not understand," so Bauer continues, "Rothaug said: 'That is only a matter of form.' Then in reply to another remark from the other side of the telephone he said -- and while he was saying it he stared at me - 'I hope that things are all right as far as that man is concerned.' I assume that he was talking of the doctor who had given the expert opinion. Katzenberger was neither mentally ill nor mentally weak. On the contrary, he knew exactly what he had to expect of Rothaug."
Do you remember Bauer's visit to you?
A. Yes, I remember that visit.
Q. Were you alone with Bauer?
A. As far as I remember we were alone and we talked alone.
Q. Why did Bauer come to see you at the time?
A. After I had examined the files, and I had examined those files shortly before the opening of the trial -- perhaps one day before the trial opened - the idea came to me that an expert opinion should be given on Katzenberger. And, as was customary in such cases, I had the physician of the District Court informed because we were in a hurry and I asked that physician to send me a doctor who was free to undertake the examination, and give an expert opinion. And that must have been how Dr. Bauer came to see me at the office to ask for the files for his information.