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.
I have had patients myself whom I had to transfer there.
Q That is enough, thank you. Ansbach and Erlangen, they are the institutions of which you have heard that they are overcrowded. You have not been there personally?
A Oh, yes, I have. I know Ansbach and Erlangen from my very own observations.
Q But you know nothing of Eglfing?
A No, I know nothing personally of Eglfing.
Q Nevertheless, this morning you spoke of Eglfing in a manner which at least made me think that you were referring to Eglfing, gave a clear picture of the conditions at Eglfing.
A These descriptions were of a general nature for all institutions in postwar Germany. You will find that if you interrogate other people they will agree with what I have said.
Q Witness, we have now found that you only know conditions in Erlangen and Ansbach. If you want to generalize them please say so, and we will know where we are. That is what I wanted to prove to you, you cannot speak about conditions in Eglfing as though you knew them, whereas in reality you only know Erlangen. Is it true that you did that?
A Yes.
Q How do you arrive at the figure 3,000 patients in Eglfing?
A I found that in the transcript of the court sessions of last Monday.
Q Why do you not say from the same transcript that the 3,000 patients were looked after by 400 nurses?
A Well, that was-- A question mark was put behind that by the witness himself. He does not show it himself.
Q Yes, you are quite right. He said about four hundred. Why did you tell us this morning that the patients in Eglfing could not see doctors for days. How do you arrive at that conclusion?
A Patients told me this who had come from Eglfing.
Q And why do you disregard Dr. Steichele's statement that there were two examinations per day?
A I cannot investigate that. He assumes that.
Q But how can you confirm then that for days they didn't see a doctor?
A I know that from statements by patients.
MR. ROBBINS: I think there has been a misstatement of the testimony here, because the doctor said there were only twelve doctors for three thousand patients, and I don't believe he said that the doctor visited each patient.
DR. VON STAKELBERG: Twice a day.
JUDGE PHILLIPS: Twice a day. He said twelve doctors visited three thousand patients twice a day. That is what he said.
THE PRESIDENT: They were very fast doctors.
DR. VON STAKELBERG: I don't know how fast they are. I only know the testimony, your Honor. What I want to prove here, your Honor, is merely that this witness quite obviously is prejudiced, that he is lacking in any degree of objectivity.
Q (By Dr. Von Stakelberg) Who has told you, Witness, that the nurses in Eglfing were intimately acquainted with the euthanasia program?
A The fact mentioned by Dr. Steichele last Monday, that the majority of the nurses had been employed before the war, shows the fact that they must have been under the effect of the euthanasia propaganda.
QQuite so. That is exactly what I assumed. Once again you have expressed an assumption as though it was a fact. How do you know that they were told again and again? Do you know anything about the secrecy side of the euthanasia program? You don't know any details, and yet you make these statements here. Who told you that Otto showed himself to be obedient and subservient?
A This becomes clear from the case history if you want to look at it.
Q I don't have to. I only wanted to know. Finally, you told that the letter which Otto wrote to the public prosecutor entirely fits the picture, the positive picture which you have formed of Otto, namely that he rebelled against the fact that his alleged act was described as a piece of villainy and murder? You told us this morning the prosecutor had told Otto, "This is murder and villainy." How do you know that the prosecutor said that?
A Otto, of course, told me.
Q Otto told you? And if you had read the transcript of Freitag's testimony you could have seen that Freitag denied strongly to have ever said anything of the sort.
A Well, there you have one man's word against the other.
QQuite, but if you want to make out an expert opinion, surely you must take into consideration the material and not only take the side of the patient one-sidedly, with which you have charged the older psychologists.
A The testimony of Freitag I was never shown. I have never seen it.
Q Witness, then you have given wrong information. You said that you had read the testimony about that material.
A The comments of the public prosecutor about the letter is not contained in the files.
Q I must repeat I am getting the transcript always, so late, but I heard myself the public prosecutor say that he did not, he never used the terms murder and villainy. I heard him say that myself.
A I never saw the files myself.
Q Very well. Then finally Otto has obviously told you that he had applied to the VVN, the Association of the Victims of National Socialism, here in Nurnberg.
A In Munich.
Q This morning you said Nurnberg.
A No, I said Munich.
Q You did say that.
A I did not say that.
Q You did.
A No, I did not. I said that via the VVN he came to Nurnberg.
THE PRESIDENT: You see, this is one man's word against another. This is one man's word against another as to whether he said Nurnberg or Munich.
DR. VON STAKELBERG: Yes, your Honor, but I am not making proper use of it. I am not the man who is giving expert opinion. If I had to give an opinion I would mention myself that it is one man's word against the other. That is with what I charged the witness. He gives an expert opinion without taking all the facts into consideration.
THE PRESIDENT: Well, it is your opinion that he said Nurnberg.
DR. VON STAKELBERG: That is a fact. My ear, not my opinion, has told me so. Something which I heard, other than opinion, told me that he had said Nurnberg. He probably misexpressed himself.
THE PRESIDENT: Either that or you misunderstood it.
DR. VON STAKELBERG: Yes, quite. But, nevertheless, your Honor, I want to say that this is something different from what I charge him. He should know everything but he does not take everything into consideration when he wants to give an expert opinion.
MR. ROBBINS: I can't help remarking that the Defense called a doctor here who gave very categorical and dogmatic statements about the Witness Otto, and he never had even seen the witness.
DR. VON STAKELBERG: The expert of the Defense has admitted that he has never seen him. He has never alleged that he ever saw him. But I am accusing this witness of giving an expert opinion, in giving us the impression as though he had tested all the facts, which is not so.
Q (By Dr. Von Stakelberg) Witness, what are your relations with Otto? Is he a relative of yours, or a brother-in-law? which is your relation to the prosecution?
THE INTERPRETER: The witness shakes his head.
THE PRESIDENT: Shakes his head which way? I mean, what does he shake?
THE INTERPRETER: He shook his head not. It seems to be not. He shook his head, if your Honors please, sideways.
Q (By Dr. Von Stakelberg) What are your connections with the Prosecution?
A The Prosecution have invited me on Saturday to give an expert opinion on the Witness Otto, and as a prison psychiatrist I met their request. Needless to say I have no friendly relations of any sort with the Prosecution, nor unfriendly ones.
Q Tell us, please, as a prison psychiatrist, whom are you dependent on; who employs you?
A I am employed by the director of the prison.
Q The director of the prison?
A Yes, yes.
DR. VON STAKELBERGER: By the American prison director. Yes, I see. I have no further question at this point.
THE PRESIDENT: Do other Defense counsel wish to cross-examine this witness?
(No response)
THE PRESIDENT: Any redirect examination, Mr. Robbins?
MR. ROBBINS: I only have-
THE PRESIDENT: Two short questions.
MR. ROBBINS: Two short questions.
REDIRECT EXAMINATION BY MR. ROBBINS:
Q. Witness, do you have the file there of the district attorney?
A. Yes.
Q. Will you open it, please, and turn to the paragraph marked II where it says, "Returned to the district attorney in Munich since we refuse to take this case over." It is signed by Freitag.
A. Just a minute, please. Yes, here it is. Oh, yes.
Q. Will you read the reason given by Freitag for quashing the proceedings?
A. Well, "I, Suspended; II) Refusing to take it over, back to Public Prosecutor Munich. The accused is arrested in the district there. No eye witnesses are available. The identity of the perpetrator is not certain at all, and the description of the deed has raised considerable doubts. Augsburg, 5 November 1946. The Public Prosecutor, by order Freitag."
Q. Nothing is mentioned there about Otto's sanity, is there?
A. No, nothing is said there at all.
Q. Doctor, I have just received Dr. Von Bayer's diagnosis, and I would like to hand it to you. I don't have a copy.
DR. VON STAKLEBERG: May it please the Tribunal, I object to the introduction of this certificate as evidence. I request to be given the right to cross-examine Dr. Von Bayer.
THE PRESIDENT: Well, the instrument, the paper, hasn't been offered in evidence. It has just been handed to the witness.
MR. ROBBINS: Do you object to his commenting on it?
DR. VON STAKELBERG: Yes, certainly. I want Dr. Von Bayer's cross-examination, but then I object also that the witness should read the certificate, that it would reach the record. I must have the right to cross examine the man who has given the certificate. Surely that is one of the basic laws of an American trial.
THE PRESIDENT: But the certificate hasn't been offered, the witness hasn't been asked to read it, and no question is pending.
MR. ROBBINS: I withdraw the certificate and the question.
THE PRESIDENT: If Dr. Haensel were here he would say "Much Ado about nothing, Shakespeare."
DR. VON STAKELBERG: Had I not interfered, your Honor, it might not have been withdrawn.
RECROSS-EXAMINATION BY DR. VON STAKELBERG:
Q. Witness, to exclude any possibility of doubt, the correspondence between the two Public Prosecutors, regarding their competence, the thing which you just read, I mean which is only available in part because there is no answer -
A. No.
Q. Is dated when?
A. 5 November, 1946.
Q. And the decision to suspend on the basis of Paragraph 51?
A. 17 January 1947.
DR. VON STAKELBERG: I see.
REDIRECT EXAMINATION BY MR. ROBBINS:
Q. Witness, is it my understanding that your diagnosis and that of Dr. Von Bayer is basically in agreement?
A. Yes.
Q. Is there any difference in it?
DR. VON STAKELBERG: I must object to that question, if the Tribunal please. If reference is made here to Dr. Von Bayer's certificate I must cross-examine Dr. Von Bayer.
MR. ROBBINS: I am not talking about the certificate now. I am talking about the conferences they had. The Defense doctor came down and testified about a conference he had with nurses and all sorts of unidentified doctors.
I would just like to --
DR. VON STAKELBERG: I would not have objected if Mr. Robbins would have asked one of the doctors of Eglfing to be taken into cross-examination, but as the Prosecution did not demand it, I did not do so. But I, on the other hand, insist on a cross-examination of Dr. Von Bayer.
THE PRESIDENT: The objection is sustained on the ground that the answer calls for a conclusion of the witness.
MR. ROBBINS: No further questions.
THE PRESIDENT: No further question, Dr. Von Stakelberg?
DR. VON STAKELBERG: No further questions.
THE PRESIDENT: This witness may be released from confinement.
(Witness excused.)
DR. VON STAKELBERG: If the Tribunal please, by permission of the Court, I would now like to hear Defendant on this accusation.
THE PRESIDENT: Does the Prosecution have any other witnesses to offer?
MR. ROBBINS: No, your Honor. We do have some documents.
THE PRESIDENT: Very well, the Defendant Fanslau may take the witness stand.
HEINZ KARL FANSLAU, a witness, took the stand and testified as follows:
JUDGE PHILLIPS: Doctor, I thought you told the Tribunal that you wanted to put on additional witnesses and then put the Defendant Fanslau on the stand at the end.
DR. VON STAKELBERG: Yes.
JUDGE PHILLIPS: And now you haven't put on those witnesses at all, but you are putting Fanslau on.
DR. VON STAKELBERG: Because of the question put to me the other day by Judge Musmanno, I have changed the sequence of my witnesses. I shall hear Fanslau first and the witnesses will come later.
Incidentally, the witnesses aren't here yet. They are still travelling.
BY DR. VON STAKELBERG:
Q. Witness, you are still under oath from your first examination.
A. Yes.
Q. You are aware of that?
A. Yes.
Q. Now you know what Otto has told us?
A. Yes.
Q. Are the statements about the establishment of the Viking Division in Dachau and the early history of the transfer to Poland correct?
A. Yes.
Q. What ranks did you have in the Viking Division?
A. I was a divisional administrative officer, and I combined in my own person the commanding officer of the battalion.
Q. Since when were you in that position?
A. Since 1 December 1940.
Q. When did you leave the Viking Division?
A. In the last days of September of 1941.
Q. Will you please describe briefly what you did while you belonged to the Division. First of all you were with the divisional staff , - in where?
A. The division was established in the Munich district. The divisional staff itself was in the City of Munich. The supply battalion was established in the troop training camp of Dachau.
Q. And then were you with the divisional staff through out that period of time?
A. Yes, with one interruption. On the 15th or 16th of April, I went to Berlin to have a conference. I know that date so well because on the occasion of that conference, I visited my mother in the country near Berlin when she had her sixtieth birthday on 18 April.
Q. What year?
A. 1941. I went to the hospital in Berlin where I had an operation. From there I went from Berlin to Trepnitz near Breslau in the time between 9th and 12th of June 1941, following the division.
Q. Where were you reunited with the division in the area of Breslau?
A. The divisional staff was then at Trepnitz near Breslau.
Q. Where was the division transferred then?
A. It marched over land into the area west of Lublin. On the eve of the outbreak of war we arrived at this new area. As we were marching I heard in the morning that fighting had started with Russia.
Q. When did the division take up combative duties?
A. Excuse me, I have got the Court calendar here.
Q. Oh, yes.
A. Can I just look that up? Either on the 29th or the 30th of June, 1941.
Q. Where did the division go? What we are interested in now is, of course, more the supply battalion.
A. The division itself at the head began on 26th or 27th of June to march away from the area west of Lublin. A day or two later, on the 27th, 28th, or at the latest 29th, the supply column began to march. Up to 2nd July the supply battalion marched via Zammoc and Lemberg. I should correct it here, the battalion did not march through Lemberg, as I remember it. We drove around Lemberg. I myself, however, went through Lemberg itself because I had separated myself from the battalion and went ahead to contact the divisional staff. Then to Zclozow and Tarnopol. In Tarnopol we stayed for three, or at the most four days, after the 5th or 6th of July until the 10th of July. We went via Broskorow to Stara Konstantino. In the area of Stara Konstantine we stopped for two or three days.