Q We have heard the tern used here of "Pseudologica-psychological fantastica". Would you say that applied to Otto?
A I don't think so. I think that that diagnosis merely expresses the wrong opinion written out at Egelefing-Haare by necessity. In the Institution of Egelfing-Haare individual treatments, of course, were quite impossible, and on the basis of the diagnosis one final diagnosis can impossibly be arrived at in a case of this sort.
Q Would you say that he is psychopathic?
A No.
Q In your opinion has he been psychopathic in the past?
A No, it is not possible. A psychopathic is a man with an abnormal disposition, which, of course, will remain in existence throughout the man's life.
Q And in your opinion what is this witness' capacity for voracity and truthfulness?
A I have no doubt in the veracity of the statements made by the witness Otto, especially as his testimony did not vary even though he described it for five times, dates and localities, which were always the same. It is quite impossible to so declare one such in this sense. I, of course, asked him the same questions several times, and it is quite impossible for anybody to react so swiftly as he did, and a man with such primitive standards and background would hardly be in a position to do that.
Q How would you classify his memory? Is it above the average?
A I should at least call it average. He has also very considerable knowledge of history, and is not without experience and judgment in social and political problems. One can discuss it with him. He is not opposed to any type of authority which one might expect from a deserter. He regards the term of authority in a sense that there he has some agency about him which will make it possible for an individual to grow and develop freely.
Q Doctor, can you answer the following question: Would an elderly psychologist who received his training long before the war started be handicapped in making a diagnosis of a victim of World War II?
A I have not followed this problem entirely, I am afraid.
Q Do you understand my question?
A (Whereupon the question was repeated by the interpreter) I think so, yes. I think an elderly psychologist who has certainly not seen the problematic conflicts of the present youth would not know about these things, as well as we would in the last few years. In my Institute in Berlin I frequently took in deserters who without doubt should not have been regarded as deserters from the way the word goes. They were highly sensitive men, and in the first instance they threw down their arms, cried for their mother, and then ran away from their unit. After a competent treatment they were able to go back to their unit, and then return back to the community as such. I could hardly think than elderly psychologist, and I want to point out within the last few years of the important education among the psychologists, especially, in the last few years of the war, has one received a definite outline which still holds along with a dictionary as being synonymous with that term. This is how we see today that the public welfare agencies commence to use questionnaires when we put down the diagnosis, psychopathological by the psychologist, when they would come back to us well. Psycho-pathology is the same thing as psychosis insanity, and insane people do not suffer, and they need no treatment, and, therefore, they have no effect to this extent.
Q I want to ask you one last question. Have you read the letter that Otto wrote to the District Attorney in Augsburg on 17 August. I think the translation, Your Honor, will be here very soon, it is being typed right now. I should like to ask you, Doctor, how this letter fits into the entire picture?
A The letter fits entirely into his development and personality. It is an entirely personal debate with the public prosecutor in Augsburg at the time and during the trial and during the interrogations about the murder, which had actually perturbed him but had not been done by him.
He said that matter is undoubtedly a piece of lustful activity, because it was committed on a NSD man who was defending his country. Otto contradicted this violently, but he was told that very strongly by the public prosecutor, and now that he has finally regained his freedom, he is in a position and attitude, although he experienced himself in an exaggerated manner, he very plausibly once again answers the questions of the public prosecutor, of what his attitude of today was to the murder which had not then happened. This reaction in this letter is entirely plausible and understandable. It is not the document of a psychopathic patient.
MR. ROBBINS: I have no further questions.
JUDGE PHILLIPS: Doctor, I would like to ask two questions, please.
Q Doctor, in your opinion as an expert, does the witness Otto suffer from hallucinations?
A I saw no indications of hallucinations in his case. We went into that problem very very thoroughly, as we do with all our patients, and we saw no such symptoms at all.
Q Doctor, in your opinion as an expert, is the mind of the witness Otto in such condition that he could imagine the stories that he has told, when there is no foundation in fact for what he has told?
A I hardly think that Otto has imagined these things which he repeatedly told me in such intimate detail, because the dates and the contents of the story always coincided to the last iota. When he gave me the description he did not seem to be giving it for theatrical effect, nor did he recite it dramatically, but he made an impression in another way, and took it along the lines of telling his story by telling it entirely clearly, very manifestly, without being excited in telling it at all. I can hardly imagine, and I can not believe in fact, he could have invented these things.
Q Doctor, you spoke of a physician in charge and collaborating with you in your examination of the witness Otto. Now who was this doctor?
A This was the doctor in charge of the whole hospital or clinic.
Q After your examination of the witness, and after his examination of the witness, did you and he agree in your diagnosis of the mental conditions of the witness Otto?
A Yes, we agreed entirely.
CROSS EXAMINATION
DR. STAKELBERG: Dr. Stakelberg for the defendant Fanslau.
Q Witness, are you an expert physician doctor? Are you a specialist?
A I am not a specialist.
Q If I have understood you correctly, the last part of your activity you worked in a psychological clinic as a student?
A I spent eighteen months in the clinic here; before then in the last year of my studies I worked in the Berlin Institution for psychologists, where these symptoms of conflicts of young men were brought in, which is where I started.
Q Yes, but you have not completed your training as a specialist as yet, have you?
A No.
Q How is it that you then think yourself a fit person to give an export opinion?
A I would like to take into consideration that I did not give this expert opinion alone, but in agreement with the doctor in charge of the hospital.
Q You said that you introduced Otto on Monday morning only to your chief?
A The chief saw Otto Monday afternoon, and also on Tuesday morning.
Q But he did not examine him?
A Yes, he examined him. Well, if you examine somebody as a psychologist you don't test his reflexes or anything like that. You test his mind. You talk to him. You have a conversation with him.
Q Why did your chief not testify here?
A He did.
Q How is that?
A The expert opinion is in the hands of the prosecution.
MR. ROBBINS: Your Honor, it is being translated. It will be here very soon.
THE PRESIDENT: What will be?
MR. ROBBINS: The certificate that the chief gave.
THE PRESIDENT: You mean his clinical findings are being prepared in a written form?
MR. ROBBINS: Yes, your Honor.
BY DR. STAKELBERG:
Q On what did your chief base his findings when he gave the certificate?
A On the files in the case taken from Egglefing, and he lastly based himself on his own examination, which he stated to question him for two hours on Monday afternoon, and the second examination which he made on Tuesday morning.
Q Is it possible in an examination of about three hours to form an impression and to give a final expert opinion on a psychopathic problem?
A Yes, I think so, definitely, unless you have a definite psyshosis which frequently does not manifest itself within a fortnight or few weeks. In those cases, or in his case, where we do not have a case of insanity, which we often have to examine for the regional insurance companies, we can easily reach a final verdict in perhaps an hour.
Q So you state, apart from a psychosis which manifest itself temporarily in a fortnight or so; but you do not exclude the possibility of psychosis in the case of Otto?
A It seems to me quite impossible to reach that conclusion. He was anything but for that one diagnosis, during which period, during the one period for which the psychosis was being expressed.
Q You said most assiduously and emphatically just now, it was quite impossible for anyone to reach an objective conclusion in Egelfink. Now how can you base yourself on a finding at Egelfink?
A Well, in the case of psychosis, it is quite simple for almost all nurses at once to find symptoms of psychosis. They have a special behavior, and within a quarter of an hour to an hour this function is quite familiar to everybody.
THE PRESIDENT: We will take a recess now.
THE MARSHAL: The Tribunal will recess for fifteen minutes.
THE MARSHAL: The Tribunal is again in session.
MR. ROBBINS: May I ask the advice of the Tribunal on a point of getting some documents together and also advise the defense counsel of the procedure we intend to follow? We have quite a number of documents, huge reports, official SS reports, that show that wholesale shooting of Jews occurred in these various villages at various times in Russia. Now, it isn't going to be necessary, I take it, to translate the entire report. In many cases it will only be three lines in an entire report, and we propose just to read those lines into the record and let the defense counsel check the translations for their authenticity, if they have no objection to that.
THE PRESIDENT: Are you having the whole report translated?
MR. ROBBINS: No, that was what I was trying to avoid, Your Honor. We have had it photostated, but we don't intend to have it all translated.
THE PRESIDENT: Good. Is there any objection to the translation being limited to the pertinent and material parts of the report?
DR. VON STAKELBERG: Your Honor, perhaps we could be told just what parts are going to be submitted to the Tribunal. I don't know for certain. Today I received document Book No. XXVI, I believe, and I am not acquainted yet with its contents, and consequently I don't know whether the Prosecution intends to submit part of this document book in evidence or all that is included in it.
MR. ROBBINS: We are going to submit all of this document book. This concerns other reports on SS activities in Russia.
DR. VON STAKELBERG: Then I suggest that the Prosecution should give us exactly the same material as it turns over to the Tribunal, then we will be precisely informed.
THE PRESIDENT: Oh yes, oh yes, the only point is, it isn't necessary to translate the whole book of reports but only the portions of it, the sentences that have to do with the extermination of Jews in Russia and Poland.
DR. VON STAKELBERG: Yes, Your Honor. However, I believe that it will be necessary that there is indicated for us just what parts were translated, because in the report there may be something contained which is important for the defense, and we might be believing that actually this had been submitted to the Tribunal when it actually has not.
THE PRESIDENT: No, you will be informed of the portions that are translated and submitted to the Tribunal, and then if there are other parts of it that you want to introduce and show to the Tribunal, why you would have that privilege.
DR. VON STAKELBERG: Very well, Your Honor, I don't have any objections on my part against this procedure.
THE PRESIDENT: Do other counsel agree? They indicate that they do.
MR. ROBBINS: Your Honor, I have had translated the letter which Otto wrote to the district attorney, which the Court requested, and I will hand it up to the Tribunal now.
DR. VON STAKELBERG: Your Honor, I haven't quite looked at the translation yet. However, I must say one thing here. Especially in these questions it is particularly regrettable that we are forced here to work in two different languages, because the direct impression which the original letter gives is different than the selected and good translation, the same as the Witness Otto in his original language and in his original sentences probably made a different impression than was conveyed by the good translation which has been given by the translators.
BY DR. VON STAKELBERG:
Q Witness, we previously established that you are not a specialist and, therefore, independently you are not able to give an expert opinion, and you said that you supported yourself on the fact that your chief had confirmed it or that he himself gave an expert opinion?
A Yes.
Q How old is your chief?
AAs far as I know my chief is forty-five years old.
Q Before that you talked about the old psychiatrists in a derogatory manner.
A I want to point out that my chief served in the Wehrmacht from 1933 until the time of the surrender, and since frequently he had the opportunity, since he worked in the psychopathic department, and since he was in the east in that capacity, he would be able to look at the younger people and he was able to gain a very extensive experience.
Q My question was a different one, in your opinion your chief also belongs to the category of the psychopathic physicians who identify themselves with their patients?
A We must make a strong difference between clinical psychopathic that is those who get to know the now cases, and those physicians of an institution who are only able to see the very old bad cases.
Q You would say no?
A Yes.
Q And you yourself are still free from the very old identification?
A Yes.
Q On what do you base your statement which you have brought forth here about the curriculum vitae of Otto?
A The statements are based on the statistics contained in his case history and the description which Otto gave us of his life during the course of our conversations.
Q Do you know that Otto at the time was turned over to the institute without any papers?
A Turned over where?
Q At Eglfing.
A Yes, I know that.
Q And that consequently all statements about his curriculum vitae in his case history can only have come from himself?
A Well, in every case a curriculum vitae can only be given by the patient himself if there are not any other documents available.
Q Therefore, we can maintain that all the statements about the curriculum vitae only came from Otto himself?
A Yes, naturally.
Q Now, you know that he made various statements. Why do you agree with these statements and not with the others?
A In the entire observation he gave us two different stories of his life. The first time, after he had been taken to Eglfing, he described the curriculum vitae of Thorsten with whom he was falsely identified and who was accused of murder.
Q May I interrupt you? Here you say he was falsely accused. How do you know he was falsely accused?
A That became evident from his release, which took place soon afterwards, or the dismissal of this case which was brought against him.
Q Do you know why the suspicion was quashed at the time?
A Because there were no motives for it; there was no evidence.
Q No, but because Otto was considered to be mentally incompetent.
A He was stated to be mentally incompetent because he had described the murder so much in detail, and he gave motives for it, so it had to appear as being fantastic from the very beginning.
Q That is not correct either, Witness. You have described and looked at the thing somewhat superficially. On the contrary the statements of Otto were so clear and they were so precise and they sounded so credible that the Prosecution was quite ready to believe this description. Only very small details showed certain contradic tions.
Do you know these small details?
A I don't have the original document with me at the moment and can not check it.
Q You said before that for your export opinion which we have heard now, that this can not be regarded as expert opinion, you had also studied the testimony of the District Attorney Freitag?
A Yes.
Q Then you should remember this. That is very important.
MR. ROBBINS: I must object to the question because the district attorney stated that he himself could not remember whether Otto had been given a mental examination. He said he assumed that he had been, but that he couldn't remember.
DR. VOH STAKELBERG: Your Honor, my question didn't go to that extent at all. I believe Mr. Robbins has misunderstood it. I only said the district attorney has confirmed here that Otto was declared to be mentally incompetent, and from his documents he confirmed to us that Paragraph 51 of the Penal Code was conceded to him. Could I read Paragraph 1 of Paragraph 51 to which the district attorney referred?
MR. ROBBINS: Well, I think the point is, if Your Honors please, that the district attorney could not remember whether he come to his conclusion on the basis of a lay opinion or a medical opinion.
DR. VON STAKELBERG: I know that, and I didn't overlook that fact. However, I didn't start to discuss that question at all. For the present time I am only supporting myself on the testimony of the District Attorney Freitag here, and on the fact that the case was dismissed on the strength of Article 51. I am putting this to the witness because the witness has said that this case was dismissed by reason of the fact that Thorsten wasn't Thorsten, he was Otto, and that is not correct at all, because the district attorney's office at that time didn't say anything about whether Otto was Thorsten or Thorsten was Otto.
THE PRESIDENT: Well, this is getting very complicated. What you asked the witness was did he know what the district attorney testified to.
DR. VON STAKELBERG: Yes, and here we became stuck, because the witness said, "yes," but he gave us a false factual answer, and I mean by that that he did not state the case correctly.
THE PRESIDENT: Let's back up a little ways and start over.
Q Witness, you told us before and we had referred to this point because we were discussing the two curriculum vitae of Otto to be the right one and you replied to me that you did this since the trial against Thorsten was quashed and that it had been proven that this alleged Thorsten in reality was Otto, is that true?
A Yes.
Q And now I put to you, what I wanted to put to you before, now the dismissal of the case did not take place, because it was clarified that Thorsten was in reality Otto and that the statements about Thorsten's curriculum vitae and so on were no correct, but because this person who on one occasion called himself Otto and then he called himself Thorsten was granted paragraph 51.
A The question about the name of Thorsten or Otto is closely connected with the entire murder affair. I fool that they are not to be separated from each other.
Q. Just answer my question. Is it correct that the district attorney has stated here that the dismissal of the case took place by virtue of paragraph 51?
A. Yes.
Q. Well, that's all I wanted to hear, and that is why I wanted to tell you that your answer before was wrong.
A. Why?
Q. And now something else. What does paragraph 51 set forth? Could I perhaps read it here, because the last time we were unable to hear its contents?
THE PRESIDENT: You may answer your own question.
DR. VON STAKELBERG: Yes, the witness may state it. "A punishable act does not exist if the perpetrator at the time of the deed suffers from a lapse of consciousness or because his mental activity is hampered, or that it was all because of mental weakness and, is incapable at that time of realizing that he is committing a punishable offense, or if he cannot act in accordance with this realization."
Q. You said before that Thorsten's statement, according to the statement of the district attorney, was so fantastic that it did not seem credible. Do you know why the district attorney began to have doubts? He has explained that to us also, Witness, if you want to give us an expert opinion about a person and you have certain material available to you, then, of course, you have to study the material precisely.
A. Yes.
Q. After all, it is very negligent of you, if you make an expert opinion and when you say that you have studied the material, and now it is discovered that very important parts of it you do not even know.
A. I can clearly remember the record of the examination and this record reproduces this murder affair which is already down in his note book with the name of Thorsten, and this entire story was so fantastic and sounded incredible and because of the inaccuracies which were pointed out at the place where the deed is alleged to have taken place by the criminal police, could be determined to be incorrect. That becomes evident from the files in my opinion.
Q. The district attorney has stated quite clearly here, the story of Thorsten was credible up to the very details. The incident itself was described in such a credible manner that Thorsten would have been believed in any case, However, there was a very small detail, which caused doubts to arise, namely doubts arose when Otto, our witness claimed, and after all the witness stated at the district attorneys's office that he was Thorsten, and he claimed that he had shot Otto and that he had taken away his uniform and that then after two days he had reported back to the orderly room and then he had done duty in the camp guards of Dachau. It was this small point which caused the district attorney's office to have doubts, because it is impossible that a member of the guard can stay away without any proceedings being taken against him, and then this suspicion arose and from that time on the district attorney's office became active. From your opinion, that the story was so fantastic from the very beginning that it was incredible, is completely wrong.
If you have drawn any conclusions from that circumstance as regards to his curriculum vitae you will certainly do so on the credibility of what he has told before this Tribunal, which he also done up to the smallest details and he has the time factors determined clearly and he has constantly given on additional questions the same thing, then you are completely wrong, because he has always done that. That is exactly an indication of his special state of mind.
A. May I say in this connection that this whole murder affair Thorston was described by him on two occasions, once when he was arrested for the first time and which lead him to be later on transferred to the court of the prosecution at Wasserburg and later on he came to Eglfing and then on the occasion of his second arrest, The TWD description agree. In a criminal statement, which he had to write down at Eglfing he has stated the story perfectly, because he knew the files had gone along with him because nobody could actually prove his name because he did not have any papers and they knew he didn't want to give this information and he had to give the exact description he had given before.
Q. In any case, it is correct that he gave a description which went into the smallest detail, a description which in its entirely everybody would have believed, and this description is false without any doubt. Do you believe that yourself?
A. Yes, that the murder was not committed by him, an I reported that.
Q. I do know that now and I also know that two persons -
THE PRESIDENT: This is just for our own information. The story of Otto when he mas arrested was that he had shot an SD man and that he had taken off his uniform and that he had thrown the body in the river and that he and the man who was shot looked so much alike that when he put on the dead man's uniform nobody could tell the difference, and that's the story that the district attorney said was entirely credible and mas true; he thought it was true.
DR. VON STAKELBERG: Well, it mas credible and only this small continuation which he made that in the new uniform he had stayed over night some place and that then only on the second day he had reported back to the unit to which the murdered man had belonged. There was a very small catch in that statement.
THE PRESIDENT: And none of the men who had been living with him for a long time recognized any difference. They thought it was their comrade.
DR. VON STAKELBERG: That is his story.
THE PRESIDENT: He looked so much like the man who was shot that even his own close comrades didn't know the difference, is that right?
DR. VON STAKELBERG: Yes.
THE PRESIDENT: That's just what you have been saying, and that was such a good story that the district attorney said: "I believe it and indict the man on the basis of his own story."
DR. VON STAKELBERG: Yes.
THE PRESIDENT: And now you dispute with the witness who is of the opinion that the story was fantastic. He disagrees with the district attorney, and who doesn't?
DR. VON STAKELBERG: Your Honor, the matter is somewhat different. The district attorney did tell us that the description of Otto was done in such a skillful manner that it was absolutely credible and he would have believed it. However, he only made a very small mistake. He made the mistake of claiming that he had gone back to the guard unit in the camp so late that he did not draw the attention of the orderly room and here the district attorney himself has said that he could not believe this because he himself then went to have the mental condition of Thorsten or Otto examined and then he drew the conclusion that he could apply Article 51 and that this whole story was untrue. That is what the district attorney testified to here and the district attorney shared our opinion that the whole story was invented.
THE PRESIDENT: His only difficulty is that he is a little late in arriving at that conclusion.
DR. VON STAKELBERG: No, Your Honor. He drew that conclusion at the time, because he dismissed the entire case.
THE PRESIDENT: Do you think it was a suspicious circumstance that the body of the man what was thrown into the river never was found?
DR. VON STAKELBERG: No, Your Honor. In my opinion, if I have un derstood the district attorney's testimony, he investigated the description of Otto.
He found it to be quite clear, with the exception of the very small incredibility. Unfortunately I received the court transcript so late that I do not have it here. Could we take a look at the transcript? After all it must become evident in the transcript -- it was done in my direct examination -- that the district attorney in my opinion stated quite clearly that Otto was a skillful liar and it is extremely difficult to prove that he has stated a lie. However, in every small detail at the time he realized that the story could not be true and from that time on he made the investigations and that is what brought him to dismiss the case.
THE PRESIDENT: That is the way he stated it, except he called them very small details.
DR. VON STAKELBERG: Very small details. It was the little matter that Otto didn't realize when he gave his story that you can't come back a day late for guard duty.
THE PRESIDENT: That isn't so much. The amazing thing is that there are two men who look exactly alike who happen to be in the same place by accident. One of them shoots the other and the best friends and companions of the survivor don't know the difference and I wonder how the district attorney was going to prove the corpus delicti, in other words, that somebody had been murdered. He never found the body.
DR. VON STAKELBERG: Your Honor, in his point German Penal Law differs from the American. We do not need any corpus delicti. In the American law that is not possible, but in the German law a credible testimony is quite sufficient.
THE PRESIDENT: That certainly simplifies the work of a district attorney.
DR. VON STAKELBERG: However, it is possible that a man can be punished for murder without a body being discovered. That is quite possible according to German law.
I know that in American law that is not possible.
THE PRESIDENT: Judge Musmanno inquires when did Otto repudiate this story first?
DR. VON STAKELBERG: According to the statement of the district attorney, he then, while he was in pre-trial confinement, he repudiated his story and he repudiated it completely. He then said it never happened.
THE PRESIDENT: After he was indicted?
DR. VON STAKELBERG: I don't know whether the indictment was raised, but he was in pre-trial confinement and investigations were pending.
THE PRESIDENT: Three months later. At that time he was still in confinement.
DR. VON STAKELBERG: I can't recall that the district attorney testified about that. I didn't ask him about it either, because I thought it quite natural that a prisoner would try to get out of a serious affair which becomes so extremely serious to him. Now, later he has stated that he did commit this deed and he stated that in the letter. However, it was another man at a different place.
THE PRESIDENT: First he told the story; then three months later he said, "Don't believe a work; I was only fooling." Then later he said, "Now don't believe my repudiation. I did kill the man, but it was in a different place, and at a different river."
DR. VON STAKELBERG: He doesn't say now that he killed him but he said that a man by the name of Thorsten. Now he claims that he was not Thorsten.
THE PRESIDENT: He said then "A man was killed, but I didn't do it and anyway it was over at the Vistula and not down at Augsburg."
DR. VON STAKELBERG: At the Vistula and not at Augsburg.
THE PRESIDENT: I take it he was only trying to annoy the district attorney.
DR. VON STAKELBERG: However, I hope he was only trying to annoy us, also, Your Honor.
BY DR. STAKELBERG:
Q Well, witness, we came a little bit away from our subject of the curriculum vitae. We came to a sideline. Now, you consider it a fact and it is clear to you that two different curricula vitae exist?
A Yes.
Q What caused you to say that in the case of Otto a special sense of justice existed? From which curriculum vitae did you draw that conclusion?
A From his curriculum vitae which has been given here, and I looked at the statements that he gave us.
Q That is precisely what I wanted to be determined: that what you have stated here is based on the statements made by Otto, that you are actually only the mental mouthpiece of Otto.
A Well, if I give a Report to me Chief about a patient, this patient has to tell me his life history, and I have to repeat it.
Q And since, from your specialist's knowledge, you are not able to judge this, then you can only repeat here what the witness told you?
Mr. Robbins: I object to the statement, Your Honor, of Dr. von Stakelberg that the witness is not qualified to give his opinion. He is a psychiatrist, and he is the prison psychiatrist in the Nurnberg jail, and I think the record shows that he is qualified to give his opinion.
DR. VON STAKELBERG: Your Honor, may I say something in this connection? I have already stated, by asking the witness, that he is not a special expert in a special position for psychiatry.