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.
He has not received the training which is necessary for a specialist's position in psychiatry. I don't know why he is the prison psychiatrist. I didn't appoint him. I don't consider him qualified. It must be a specialist in that field.
THE PRESIDENT: What you mean to say is that you don't like his conclusions, you disagree with them?
DR. VON STAKELBERG: Absolutely, Your Honor, but, beyond that, I don't think that he is qualified to draw those conclusions.
THE PRESIDENT: Well, that is a question of the weight to be given his testimony.
DR. VON STAKELBERG: Yes.
THE PRESIDENT: Opinion evidence does not necessarily depend on the kind of diploma that you have, the kind of certificate. Even a lay person may give opinionevidence as to the sanity of a person -- for instance, in the question of a will -- so there is nothing holy about a certificate from a college. It does not mean that only those people may be experts and may give opinions.
DR. VON STAKELBERG: Yes. If that is the case, I can't do anything about it.
BY DR. VON STAKELBERG:
Q Did you hear any exact descriptions from Otto about his work, about the work which he has done since his youth? Just what occupation did he specialize in?
A He told me that for two years after he left school he was unemployed, since he was not a member of the Hitler Youth and since his native town was an industrial area, nobody wanted to employ him for that reason.
First of all, he stayed home for two years, and only after two years had passed, he worked in various agricultural plants.
Q Very well. Didn't it come to your attention that this curriculum vitae is extremely unstable? He never stayed for a long period of time at one place of work.
A Of course, I don't know exactly how long he worked at the different places.
Q That is a very bad mistake, witness. Don't you consider that when you diagnose a man?
A Of course, I should look at it, but I have to depend on the statement that he makes to me
Q However, even here, his statements are, in my opinion, cause enough to get suspicious. You should have considered that factor. Did the witness tell you that at one time he had won something in a lottery?
A Yes.
Q And now a certain contradiction is in that also. For example, he did not tell us about it. Do you know that?
A I personally heard his statements about the fact that he had won something in a lottery, and I also read that in his curriculum vitae, and I also read it again in the case history that came from Egolfing.
Q And did it come to your attention that he did not mention that fact in his testimony before the Tribunal?
A He was not asked to tell all the details of his life to the Tribunal. After all, the Tribunal doesn't have to be told all the details about his life.
THE PRESIDENT: Nobody asked him here if he had anything in a lottery.
DR. STAKELBERG: Your Honor, however, at the time I asked him about his financial status, and allegedly he won about RM 12,500 in the lottery, and in these stories that are known to me, he claims that he supported his parents with that money, but he told us that he had to try to get along as far as possible because he would work in agriculture from time to time, and he never mentioned the fact that suddenly his financial position improved or that he won something in the lottery. In my opinion, he should have included that in his testimony when I asked about his financial background.
THE PRESIDENT: Well, all right.
BY DR. STAKELBERG:
Q Witness, the witness Otto then made statements to you about his having been a member of the Wehrmacht?
A Yes.
Q And he stated that he had then been transferred from the Wehrmacht to the Leibstandarte Adolf Hitler?
A Yes.
Q And he went to the transportation department?
A Yes.
Q And with this transportation division he had been sent to the East?
A Yes.
Q He told us, for example, that he did not go to the East with the transportation division of the Leibstandarte but with the Division Viking.
A I must correct myself here. From the army units to which he had been conscripted, after the campaign in France, after a short furlough, he was transferred to Berlin-Lichterfelde, and first he was sent to the transportation department for training. Then, after a short training period, he was transferred to the SS Division Viking in the transportation division. I forgot to say that just now. He told me that emphatically several times.
Q You forgot to tell us about that before. Then Otto apparently told you that the shooting of the Jews at Dnjepopetrowsk caused him to desert.
A Yes.
Q Did he also tell you when this shooting took place?
A I can't recall the exact date, but he stated that this had been in October. He said that the first snow had fallen at that time.
Q Did you read over his testimony before the Tribunal after you heard that?
A No, I did not read it.
Q That is very sad, witness. You give us an expert opinion here, and you don't even study the material.
He told us that the shooting at Dnjepopetrowsk had taken place in the middle of December, and he described it to us in detail, because Tschentscher was wearing a heavy overcoat and that it had been terribly cold.
MR. FULKERSON: The witness just said that he could not remember the exact date, that he thought it was October, that Otto said it was when the snow had fallen. Otto sat right there in that chair and testified that the reason he remembered that it was around the 1st of December was that snow was falling and that it did not begin to fall in Russia until about that time of year.
DR. STAKELBERG: That is exactly what I said.
MR. FULKERSON: You are just proving that he doesn't remember what Otto said.
DR. STAKELBERG: Absolutely. I prove that he did not remember what Otto had said.
BY DR. STAKELBERG:
Q In your description something else came to my attention. Otto told you that he had been arrested in 1942 in the spring of that year?
A Yes.
Q And then he said that he had done guard duty at the command post for two days. Did not that appear strange to you?
A I myself had not seen such situations in the East. I did not take part in the Eastern campaign, and I cannot form any judgment about that. I can imagine that in an attack people under arrest can perform some sort of duty before they are taken away.
Q Witness, you could have determined that very easily. Perhaps you can recall how in January 1942 the front line was running before Dnjepopetrowsk, and you know that at Dnjepopetrowsk at that time no heavy operations took place.
Then something else surprises me. Didn't it appear strange to you also that he did guard duty for two days, but, that in order to shoot himself through his hand he had to borrow somebody else's pistol? Didn't you ask him just why he had to pull guard without any weapon?
A Well, he had a carbine, and it is difficult to shoot oneself in the hand with a carbine.
Q Did you clarify that question?
A Yes, I did.
Q Then he told you, as he told us, that he had been sentenced to life detention?
A Yes.
Q And you said in Danzig he had been sentenced to twelve years in jail.
A Yes.
Q The last claim is completely new.
A He was to be sent to detention for twelve years. He didn't tell me about that precisely. I believe he was sentenced to twelve years detention and transferred to Danzig-Matschkau.
Q And the court-martial sentenced him to detention for twelve years?
A Yes.
Q And had you examined his testimony before the Tribunal, you would have seen that he told us that he had been sentenced to life-detention. What did he actually tell you?
A He told me that his trial was carried on three times, and that during the first trial the question of self-mutilation was discussed and that it was removed through the testimony of a comrade of his.
Q I have understood that. I would like to hear only the verdicts. Just who sentenced him? By his division to what?
A During his first arrest he was court-martialled by his division.
Q. And what was he sentenced to?
A. Because of trying to evade the military service.
Q. What was the sentence?
A. Well, he had to serve a term of confinement in the punitive camp, and then he was sent to Matschgau.
Q. Witness, if you had read the transcript here you would have seen that he told us that he was sentenced to death and that then, by virtue of certain arguments on his part--which I don't want to repeat here-the sentence was changed in the same court session by the same court to life-long protective custody.
A. Yes, that is what he said.
Q. However, you didn't tell me that here.
A. He said that he had been sentenced to death and had then been pardoned to life-long protective custody.
A. Yes, life-long.
A. Life-long.
Q. And then he said that at Danzig he had been sentenced to twelve years penitentiary.
A. He said that then he had been transferred to Danzig-Matschgau and was there sentenced to a twelve year penitentiary term.
DR. VON STAKELBERG: May I state for the record here that this sentence of twelve years in jail is completely new.
BY DR. VON STAKELBERG:
Q. When was he released as a prisoner of war, according to his story?
A. Just a moment please. On 18 May 1945, from the prisoner of war camp at Wasserburg.
Q. Then you told us what motives brought the witness, Otto to jail, and that he was brought to Egolfing.
A. Yes.
Q. On what statement do you support these motives?
A. It is based on his personal statement and also on the case history of Egolfing.
Q. The institution at Egolfing, and they also support themselves on his statements?
A. Yes.
Q. Wouldn't you consider it necessary, for example, to make an inquiry of the physician at Wasserburg?
A. Well, there was an entry made at Egolfing and the case history states that he had been sent to Egolfing on a certain date, and it was pointed out there that some sort of mental disturbance might exist. I mentioned that before.
Q. You described it to us differently.
A. I stated that he was arrested for the first time on suspicion of murder and that this suspicion of murder was quashed, and then he had been taken to Egolfing after it was ordered that his mental state should be examined.
Q. I would not reproach you at all if you would tell us these things as facts. However, here you have connected this with a political background. You have stated that since Otto was an anti-Fascist, the population at Wasserburg, which was extremely National Socialist, did not want to have him around and that is why he was taken to jail, and that even there he seemed dangerous to the population, and that therefore he was taken to Egolfing under suspicion of mental disorders. Just how did you come to this conclusion? What brought you to make these statements? How do you know that the population at Wasserburg is very strongly National Socialist? How do you know that the official physician there does help the Nazi?
A. Well, the physician there is very susceptible to what is told him. Naturally, he will take a look at him, but if I constantly tell a physician certain things, and I see that every day, -- when people come to the health office-
Q. Did the official physician of the health office say that somebody had prejudiced him to reach a diagnosis?
You said that a second ago.
A. Well, I assumed that.
Q. Well, that is what gets me so excited. You draw conclusions from assumptions, and then you bring a diagnosis of that sort before the Tribunal. Isn't that negligent and irresponsible on your part?
A. Of course, in two or three days, I can not make investigations in Wasserburg.
Q. Very well. Then perhaps you will admit that in two days you cannot draw any conclusive diagnosis at all.
A. In two or three days I can give a conclusive diagnosis about the mental compatibility of that man, about his memory, and things of that sort, and these things were in question at the time.
Q. However, you base your diagnosis on very detailed statements and since I am occupying myself now with these statements, I must state that either they are direct statements of the witness or they are assumptions on your part. Can you say with a good conscience that you can form a diagnosis from that at all?
A. In a psychiatric diagnosis, of course. The subjective reaction is of course always to be included and plays a considerable part. I don't think there is a psychologist who can completely remove himself from a feeling of like or dislike. I admit that.
Q. Witness, I thought you claimed that only of the old psychiatrists.
A. These possibilities of making mistakes, of course, apply to all people. Nobody is perfect.
Q. Therefore, you admit that your testimony here is supported by a certain personal sympathy that you feel for Otto?
A. I don't want to say that at all.
Q. I thought you have just told us that rather clearly.
A. Sometimes you can say this in a negative respect. For example, I can say of a man who stays at an insane asylum in spite of his objections and therefore draws the wrath of the nursing personnel upon him, that man doesn't have to be sympathetic to me.