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.
Q. You're going around my question, witness. I just put to you that you had supported your diagnosis on statements of the witness, which you accepted without checking them, and further on assumptions on your part which arose in your own fantasy.
And you answered to that certain personal subjective attitudes of the person who examined the witness could not be prevented and that a certain like or dislike will always be decisive. This was quite clearly a declaration to the effect that you included your own fantasy to an extensive degree.
A.- This can not be claimed at all. In a diagnosis I have to have conversation with a person, and of course, I have to consider the whole personality, his kind of reaction, his mimic, all his gestures, his manner of speech, and, of course, the entire personality of the person who is diagnosing has to be included in that, and I, as well as the Ober Medizinalrat, during the two hour conversation that we had, saw that here was a person who had a extremely difficult life, a child of his time, who was brought into conflicts and conditions -
Q.- Witness, you again are not answering my question. Let me put the question quite briefly now. Do you have subjectively a personal sympathy toward Otto?
A.- I must say that my attitude is indifferent. It is quite neutral. It is neither sympathic nor -
Q.- Then please tell me just why you describe so clearly the things at Wassenburg, of which you have no knowledge at all. You don't even know that from the statements of the witness Otto, because at that time he was in prison.
A.- These statements about Wasserburg came from Otto.
Q.- The statement, for example, that the assumptions of the official physician at the time, that a mental disorder existed could be brought back to the influence of the Nazi population which did not like Otto.
A.- I personally did not read a diagnosis of the official physician at Wasserburg. After all, this should have been included in the files. I can not judge what this official physician diagnosed at the time. Of course, I have to support my -
Q.- Quite correct. If you had said that before, I would not have raised any objection. Now you repudiate that this was a Nazi action against Otto, because that is the way you stressed it before? Yes or no?
A.- Well, I can't judge that, because the facts.
Q.- Answer with yes or no. Do you want to say these were Nazis or not?
A.- I can't say that.
Q.- Then not. Why did you say it before? Why didn't you say it right away?
Isn't a mistake that diagnosis of the official physician at Wasserburg was not given any official consideration at all?
A.- I didn't read it.
Q.- But then you should have requested it, or this physician should have been consulted. Take a look at the situation now. We have this official physician at Wasserburg, and we have the institution at Egolfing, a psychiatric institution of great reputation. We have the psychiatrist for the district attorney. They all say -
JUDGE PHILLIPS: Who testified that any physician ever examined this man at Wasserburg?
DR. VAN STAKELBERG: The witness himself said that in the files from Egolfing there was an entry by the official physician at Wasserburg and that it had been stated there was the suspicion against Otto that he was suffering a lapse of memory.
JUDGE PHILIPPS: He never testified that any diagnosis was made by a doctor, but there was an entry there that it had been but whatever it was, he never read it. That is what I understood him to say.
DR. VON STAKELBERG: Your Honor, the witness has stated that the files of Egolfing contain an entry, that there was a note by the official physician that to be transferred to the institution, because the official physician at Wasserberg thought that Otto was suffering from a disturbance of consciousness.
Is that correct?
THE WITNESS: In the case history of Egolfing there was an entry to the effect that, on suspicion of a mental disorder, he was turned over to the institution.-
JUDGE PHILLIPS: Let him finish.
THE WITNESS: It does not say that the official physician ever saw him personally.
JUDGE PHILLIPS: That is what I was troubling about.
DR. VON STAKELBERG: I am sorry, Your Honor; I did not understand it that way.
JUDGE PHILLIPS: And now, recess.
THE RECESS: The Tribunal will recess until 1345 hours.
(Whereupon the Tribunal recessed until 1345 hours.)
Court No. II, Case No. 4.
AFTERNOON SESSION (Following recess) THE MARSHAL:
The Tribunal is again in session.
Cross-Examination (Resumed) BY DR. von STAKELBERG:
Q May I continue with my cross examination?
Witness, during the recess the prosecution gave you a document; what document was it?
A This was the record of the examination of the public prosecutor. Just a moment.
Q Don't you know this by heart?
AAt Augsburg, the district court of Miesbach.
Q When did you see that document for the first time?
A I saw it for the first time last Sunday, the 24th.
Q Did you study it?
A Yes, I did.
Q First of all what is the remark made up on top? The reason for dismissing the case?
A The trial was started 17 January 1946, according to paragraph 51 - 1, Penal decree, trial suspended, signed Felchner.
Q If you studied this document before, why did you say first of all this morning that the trial had been suspended in Augsburg, because the incredibility of the facts were proven or because it was proven that Thorsten and Otto were not identical?
A I merely see paragraph 51 - 1 of this document.
Q Witness, something else, you stated why the witness Otto was committed to the Wasserburg prison?
A Yes.
Q Why was he there?
A He was under suspicion of murder in connection with the name of Thorsten and was then committed to the prison at Wasserburg.
Q Is this what Otto told you himself?
A Yes, he told me this himself.
Court No. II, Case No. 4.
Q Now, had you studied this document, surely you would have had to notice that he said something else in it. Don't read it now please, I want to know what you know. After all he made a different statement there, don't you know that?
A No, I do not remember it.
Q You may remember that when this document was handed to you, I was interested in what it was and I also looked at it?
A Yes.
Q And I happened to look at a few lines in which Otto states that he had not been sent to Wasserburg prison under suspicion of murder, but because he had said that the American C.I.C. was one and the same as the German Gestapo. Will you please look at it and then you will be able to confirm it. If you had studied the file surely you would have to know where it is.
A I cannot find it in this document.
Q You can't even find it, you mean?
A All it says here is........
Q Well, I will show you where it is. It says here: "I want to state one more thing. I have denied the murder of this man, to the C.I.C. in Wasserburg, namely the killing of the SS man Otto.
Court No. II, Case No. 4.
This was in July of 1945 and at this time I was interrogated by Captain Hawkins in the Wasserburg Court prison, this is Wasserburg on Inn. This officer said it is not for the act and your fight against the Fascist regime that you are being held responsible today. I was in prison only because somebody had alleged I had said about the C.I.C. that it was the same thing as the German Gestapo." This is reading from the bottom, above the word "Warrant for Arrest". It is the second paragraph from the bottom. Will you please look at it and tell me if it is correct?
A Yes.
Q Correct, is it?
A Yes.
Q Witness, well you now must admit that you have not really studied this document?
A Of course I have studied it, but I could hardly make statements about the legal implications, I only can speak about his mental state.
Q But, these are not legal matters, we are concerned with Otto's veracity.
A Yes.
Q And surely we must test whether the things which Otto told you are truthful and credible.
A It is also possible that he was sent to prison not only because of his alleged denunciation of the C.I.C., but also under the suspicion of murder. Anyway he told me that he was sent there both for the reason of having slandered the C.I.C. as well as for the seizing of food stuff with which he was charged and the important reason was the suspicion of murder.
Q Now, witness, you still say when I put to you that Otto said on another occasion something quite different from what he told you, it is still possible that this was not a contradiction; will you at least please admit that you have created this possibility yourself Court No. II, Case No. 4.from your sympathy for Otto and your own impression?
A No.
Q Well, have you any evidence on which you can base your statement on how you answer me; you must know on what you are basing your assumption; where do your answers come from as to your knowledge of the case; on what you heard from him? We don't want to guess it.
A What he told me at the time was that he was sent to prison for those three suspicions, it does not speak against him that he does not mention all these things in this document.
Q Why was it when you were asked both by the Prosecution and myself - I myself asked you twice - you each time said he had been in Wasserburg only on suspicion of murder? Now you say he was sent to prison for three reasons, which is entirely new and yet another contradiction of Otto's statement. Were you not shocked even by these contradictions?
A I can easily imagine that a number of points........
Q Witness, what I asked you was whether you were shocked by the contradictions; I know very well what you imagine yourself?
A I was struck by certain contradictions, but I did not think these contradictions were so decisive in this document.
Q Alright, thank you. If you were struck by this contradiction, why did you not tell us about it when I asked you why he was in prison? I asked you repeatedly from what facts you had reconstructed Otto's life history, which was the basis of your certificate, and you said repeatedly from the study of the files and what Otto told you and this had given you a uniformed picture. Now I learn that you simply passed lightly over the contradictions although you noticed them?
A There can be no mention of contradictions, for what you state did not seem so important as to Otto's veracity.
Q Well, quite obviously you have forgotten what we interrogated you about before the recess. Then I drew your attention to a number of contradictions and it is hardly necessary for me to go over Court No. II, Case No. 4.them again.
It is only interesting that you do not recall them, let us not mention that, we will talk about something else.
Q Witness, this morning you said that the expert opinion of the doctor in charge of Eglfing was not to be recognized and you gave us a detailed description of the condition in Eglfing, and why the expert opinions given by Eglfing shouldn't be given too much importance. They should not be given a decisive importance perhaps. Have you been to Eglfing?
A Yes.
Q How often have you been there?
A I went there once.
Q How long. Please let me ask the questions.
A I did not wish to make derogatory statements about Eglfing as such. All I said generally were conditions at the present time in large institutions, when they are overcrowded, cannot correspond to those conditions in normal times of peace, and that therefore individual care and individual certificates of patients cannot be done in the same measure as they were done before.
Q You did not confine yourself to Eglfing only? You wanted to speak quite generally?
A Yes, I do. Quite generally.
Q How many large lunatic asylums do you know?
AAbout five institutions.
Q By name or personally?
A Oh, I have been there myself.
Q How long have you been to these institutions?
A Do you mean a total or each?
Q I want to know every single detail.
A I went to an institution near Prague for about six weeks in 1942.
Q I am speaking about postwar conditions now. You spoke about the big institutions after the war.
A That I know from my own observations in the institutions Ansbach and Erlangen which are always crowded because they are short of space.