Eugene Sepp, M.D., Emeritus Professor of Neurology, Medical Institute of Moscow; Member, Academy of Medical Science, Union of Soviet Socialist Republics.
Eugene Krasnushkin, M.D., Professor of Psychiatry, Medical Institute of Moscow.
Bertram Schaffner, Major, Medical Corps, Neuropsychiatrist, Army of the United States.
The commission has reported to the Tribunal that it is unanimously of the opinion that Gustav Krupp von Bohlen suffers from senile softening of the brain; that his mental condition is such that he is incapable of understanding court procedure and of understanding or cooperating in interrogations; that his physical state is such that he cannot be moved without endangering his life; and that his condition is unlikely to improve but rather will deteriorate further.
The Tribunal accepts the findings of the medical commission, to which exception is taken neither by the Prosecution nor by the Defense.
Article 12 of the Charter authorizes the trial of a defendant in absentia if found by the Tribunal to be “necessary in the interests of justice.” It is contended on behalf of the Chief Prosecutors that in the interest of justice, Gustav Krupp von Bohlen should be tried in absentia, despite his physical and mental condition.
It is the decision of the Tribunal that upon the facts presented the interests of justice do not require that Gustav Krupp von Bohlen be tried in absentia. The Charter of the Tribunal envisages a fair trial, in which the Chief Prosecutors may present the evidence in support of an indictment and the defendants may present such defense as they may believe themselves to have. Where nature rather than flight or contumacy has rendered such a trial impossible, it is not in accordance with justice that the case should proceed in the absence of a defendant.
For the foregoing reasons, the Tribunal orders that:
1. The application for postponement of the proceedings against Gustav Krupp von Bohlen is granted.
2. The charges in the Indictment against Gustav Krupp von Bohlen shall be retained upon the docket of the Tribunal for trial hereafter, if the physical and mental condition of the defendant should permit.
Further questions raised by the Chief Prosecutors, including the question of adding another name to the Indictment, will be considered later.
The Tribunal will now hear the application on behalf of the Defendant Streicher.
Will the Counsel state his name?
DR. HANS MARX (Counsel for Defendant Streicher): Your Honors, as Counsel for the Defendant Julius Streicher, I took the liberty some time ago of requesting a postponement in the opening date of the Trial, because the time at my disposal for making preparations appeared to me insufficient, in view of the importance of the case.
This morning, however, the President of the Court outlined the course of the proceedings of the Trial and his explanations have made it quite clear that the Defense will have adequate time at its disposal to continue preparations for the case of each client even after the opening of the Trial. Any objections on my part are thereby removed, and accordingly I withdraw my application as unsubstantiated.
Your Honors, may I use this opportunity to make a suggestion with regard to the case of the Defendant Streicher.
In view of the exceptional nature of the case and of the difficulties facing the Defense in handling it, may I suggest that the Tribunal consider whether a psychiatric examination of the Defendant Streicher would not be proper. Defense Counsel should have at his disposal all the evidence on the nature, personality, and motives of the defendant which appears necessary to enable him to form a clear picture of his client.
And this, of course, is also true of the Tribunal.
In my own interests I consider it essential that such an examination be authorized by the Tribunal. I emphasize particularly that this is not a formal motion: “It is not a motion but a proposal.” [Note: These words were spoken in English.] I deem it necessary as a precaution in my own interests, since my client does not desire an examination of this sort, and is of the opinion that he is mentally completely normal. I myself cannot determine that; it must be decided by a psychiatrist.
I, therefore, ask the Tribunal to consider this proposal, and, if the suggestion, under the circumstances, appears both requisite and necessary, to choose and appoint a competent expert to conduct the examination.
That is what I wished to say before the opening of the proceedings.
THE PRESIDENT: One moment. It appears to the Tribunal that such suggestions as you have now made, ought to be in the form of a formal motion or application and that it ought to be in writing and that if, as you say, the Defendant Streicher does not wish it or is unwilling that such an examination should be made, then your application ought to state in writing that the Defendant Streicher refuses to sign the application.
If you wish to make such a motion you are at liberty to make it, in writing.
DR. MARX: Mr. President, may I be allowed to say briefly that it is precisely because the defendant does object to my submitting such an application that I feel obliged to make this request here publicly, and inform the Tribunal that I am bound by my client’s attitude and therefore not in a position to submit this suggestion in writing. Without my client’s permission I cannot make this suggestion in writing, and I am consequently forced to convey it to the Tribunal verbally, since I myself consider it necessary as a precaution in my own interest.
THE PRESIDENT: But you understand from what I say to you, that if you wish to make this suggestion, you must make the motion in writing and you can, on that writing, state that the Defendant Streicher is not prepared to sign the application.
DR. MARX: Thank you, Mr. President, for your statement; I shall not fail to act, as you suggest.
THE PRESIDENT: Do the Chief Prosecutors wish to make any statement?
COLONEL ROBERT G. STOREY (Executive Trial Counsel for the United States): May it please the Court:
The position of Counsel for Defendant Streicher emphasizes a suggestion made by the Prosecutors this morning, namely, that all motions and all requests from Counsel be reduced to writing, prior to submission to the Court and the suggestions, in writing, were filed with the General Secretary since the meeting this morning.
While I am on my feet, if it may please the Court, may I make a brief statement in connection with the efforts of the Prosecutors to furnish to the Defense Counsel evidence and documents in which they may be interested, if that meets with the approval of the Court.
THE PRESIDENT: Yes.
COL. STOREY: With reference to Defendant Streicher’s second point in his motion, namely, that the Prosecutors be required to furnish certain documents, they are being furnished, and will be furnished in the future.
Secondly, with reference to the film on concentration camps, which he requests be shown to Defense Counsel in advance of the time of presenting the film, this request will also be complied with by the Prosecutors.
Also, for the information of the Defense Counsel, there has been established in Room 54, in this Courthouse, what is known as the Defendants’ Information Center, operated jointly by the four Chief Prosecutors. In that room there has been deposited a list of documents upon which the Prosecution relies. Secondly, if further documents are relied upon by the prosecutors, lists will be furnished to Defense Counsel before they are introduced into evidence or offered to the Court, and also, they will have the opportunity to examine copies of those documents in their own language.
May I also suggest that most Defense Counsel have availed themselves of that privilege and those who had not, have been notified and they are now, as of this date, all of them, making use of the facilities provided, which include rooms for conferences, typewriters, when necessary, and other assistance.
I want to make that statement for