dtufail/nuremberg-trials-corpus huggingface dataset:
THE PRESIDENT: I call upon counsel for the Defendant Hess. DR. GÜNTHER VON ROHRSCHEIDT (Counsel for Defendant Hess): May it please the Tribunal, I am speaking as counsel for the Defendant Rudolf Hess. In the proceedings which have already been opened against Hess, the Court is to decide solely the question whether the defendant is fit or unfit to be heard, and further, whether he might even be considered entirely irresponsible. The Court itself has posed this question affecting the proceedings against Hess by asking the experts to state their opinion, firstly, on whether the defendant is in a position to plead on the charge; secondly, on his state of mind, whether he is mentally sound or not. With regard to question 1 (Is the defendant in a position to plead?) the Tribunal asked the experts specifically whether the defendant is sufficiently in possession of his mental faculties to understand the proceedings and to conduct his defense adequately -that is, to repudiate a witness to whom he has objections and to understand details of the evidence. The experts to whom this task was entrusted have, in separate groups, examined Hess for a few days and have stated their expert opinion on these questions in writing. As the defendant's counsel I consider it my duty, after studying the reports of these experts, which unfortunately, I could not do as carefully as I desired since time was short, and in view of my knowledge of the defendant and my experience in almost daily contact with him, to state my opinion that the defendant Hess is not in a position to plead in the case against him. I am therefore obliged to file the following applications on behalf of the Defendant Hess: Firstly, I request a ruling to suspend the proceedings against Hess temporarily. Secondly, if his inability to plead is recognized by the Tribunal, I request that the proceedings against the defendant be not conducted in his absence. Thirdly, if the Tribunal rules that Hess is fit to plead, I request that in addition other competent psychiatrists be consulted for an authoritative opinion.
THE PRESIDENT: Before I come to the reasons for my applications, I should like to say, at the request of the defendant, that he himself considers he is fit to plead and would himself like to inform the Court to that effect. May I now state the reasons for my application: In regard to my first application: If the defendant is not fit to plead, I request that the proceedings against Hess be temporarily suspended. In this connection may I refer to the opinions already submitted to the Tribunal. After examining the questions placed before them by the Tribunal, the experts have come to the conclusion which is embodied in what I may call the main report signed by a mixed delegation consisting as far as I could determine of English, Soviet, and American experts, and dated 14 November 1945. This report states, I quote: "The ability of the Defendant Hess is impaired"-that is-"the ability to defend himself, to face a witness, and to understand details of the evidence." I have cited this part of the report because it is closest to the questions put to the experts by the Tribunal. Another opinion says that " . . . even if Hess' amnesia does not prevent the defendant from understanding what happens around him and to follow the proceedings in Court..." THE PRESIDENT [Interposing] : Would you speak a little more slowly? The interpreters are not able to interpret so fast. Would you also refer us expressly to those parts of the medical reports to which you wish to draw our attention? Do you understand what I said?
DR. VON ROHRSCHEIDT: Yes. I am sorry I cannot refer to the pages of the original or English text, as I only have the German translation; so I can only say that the first quotation. . . THE PRESIDENT [Interposing] : You can read the words in German, and they will be translated into English. Which report are you referring to?
DR. VON ROHRSCHEIDT: I was referring to the report of 14 November as far as I can see from my German translation. This report seems to have been drawn up by a delegation of English, Soviet, and American experts, and accompanied the report of 17 November 1945. What I quoted was the following-may I repeat: "The ability of the Defendant Hess to defend himself, to face a witness, and to understand details of the evidence is impaired." I ask the Tribunal to tell me...
THE PRESIDENT: Can you say which of the doctors you are quoting?
DR. VON ROHRSCHEIDT: It is the report which, in my copy, is dated 14 November 1945, and, as I said, was presumably signed by Soviet, American, and English doctors. Unfortunately, when returning the material yesterday evening after translation into German I could not get the original text, and my attempt to obtain it now failed through lack of time.
THE PRESIDENT: Have the English prosecutors got a copy, and can you tell us which it is?
SIR DAVID MAXWELL-FYFE: I'm sorry, My Lord, I think I am in the same difficulties as your Lordship. On the order that I have, I have copies of four medical reports. Your Lordship will see at the end of the document headed "Order," it says, "Copies of four medical reports are attached." The first one of these is signed by three English doctors on the 19th of November. The second is signed by three American doctors and a French doctor, dated the 20th of November 1945. And then there is a report signed by three Soviet doctors, dated the 17th of November. And one is signed by three Soviet doctors and the French doctor dated the 16th of November. These are the only ones which I have with the Court's order.
THE PRESIDENT: Yes. I don't know what this report is that you are referring to.
SIR DAVID MAXWELL-FYFE: Dr. Von Rohrscheidt seems to have an unsigned report of the 14th.
THE PRESIDENT: Dr. Von Rohrscheidt, have you got the four reports which are really before us? I will read them out to you. The first one I have got in my hand is the 19th of November 1945, by Lord Moran, Dr. Rees, and Dr. Riddoch. Have you got that? That is the English report.
DR. VON ROHRSCHEIDT: I only have this report in the German translation and not in the original
THE PRESIDENT: But if you have got it in the German translation, that is quite good enough. Then the next one is dated the 20th of November 1945, by Dr. Jean Delay, Dr. Nolan Lewis, Dr. Cameron, and Colonel Paul Schroeder. Have you got that?
DR. VON ROHRSCHEIDT: Yes, I have that.
THE PRESIDENT: That is two. Then, the next one is dated the 16th of November, and is signed by three Soviet doctors and one French doctor, Dr. Jean Delay, dated the 16th of November. Have you got that?
DR. VON ROHRSCHEIDT: Yes.
THE PRESIDENT: Then there is another report of the 17th, signed by the three Soviet doctors alone, without the French doctor.
DR. VON ROHRSCHEIDT: Yes, I have that one.
THE PRESIDENT: Now, will you refer us to the passages in those reports upon which you rely? There is another report by two English doctors which is practically the same. That is the one I have already referred to, that does not contain the name of Lord Moran on it, dated the 19th of November.
DR. VON ROHRSCHEIDT: Yes, I think I can shorten the proceedings by saying that in my opinion all the reports surely agree -even if not in the same words-that the ability of the accused Hess to defend himself, to face a witness, and to understand details of the evidence is impaired. And under this assumption that all the medical opinions agree on this point I, as the defendant's counsel, must come to the conclusion that the defendant is unable to plead. The reduced capacity of the defendant to defend himself, which is caused by his mental defect, recognized by all experts as amnesia and described as a mental condition of a mixed character, but more than mere mental abnormality, must be accepted as meaning that he is unfit to plead. I am of the opinion that the conclusion reached by the medical experts implies that, in the way the question was formulated, the Defendant Hess cannot adequately defend himself on account of this mental defect, namely, amnesia. The medical reports also state that the defendant is not insane. That is not the important point at the moment because in my view it can already be convincingly stated, on the basis of the reports as such that on account of his reduced mental ability the defendant is not in a condition to understand the entire proceedings. I myself believe-and I think that my opinion on this agrees with the medical opinion-that the defendant is completely incapable of making himself understood in a manner expected from a mentally normal defendant. In view of my own experience with him I consider that the defendant is incapable of grasping the charges which the Prosecution will bring against him to the extent required for his defense, since his memory is completely impaired. On account of his loss of memory he neither remembers events of the past nor the persons with whom he associated in the past. I am, therefore, of the opinion that defendant's own claim that he is fit to plead is irrelevant.
DR. VON ROHRSCHEIDT: And since, as the medical report says, his condition cannot be rectified within appreciable time, I think that the proceedings against him should be suspended. Whether the narco-synthesis treatment suggested by the medical experts will bring about the desired effect is uncertain. It is also uncertain within what period of time this treatment would result in the complete recovery of the defendant's health. The medical reports accuse the defendant of deliberately refusing to undergo such medical treatment. The defendant himself, however, tells me that, on the contrary, he would readily undergo treatment but that he refuses the suggested cure because firstly, he believes that he is completely sound and fit to plead, that therefore this cure is unnecessary; secondly, because he disapproves on principle of such violent intervention, and finally because he thinks that such an intervention at this time might render him unfit to plead and to take part in the proceedings-and that is the very thing he wishes to avoid. If, however, the defendant is incapable of pleading, or of defending himself, as is stated in the medical report, and if this condition is likely to last for a long time, then in my opinion, a basis exists for the temporary suspension of the proceedings against him. Coming now to my second application: If the Tribunal accepts my arguments and declares the Defendant Hess unfit to plead, then, according to Article 12 of the Charter, it would be possible to proceed against the defendant in absentia . Article 12 provides that the Tribunal has the right to proceed against a defendant in his absence if he cannot be found, or if for other reasons the Tribunal deems it necessary in the interests of justice. The question then is whether it is in the interest of justice to proceed against the defendant in absentia.
DR. VON ROHRSCHEIDT: In my opinion it is incompatible with real justice to proceed against the defendant if he is prevented by his impaired condition-namely, amnesia which is recognized by all the medical experts-from personally safeguarding his rights by attending the proceedings. In a trial in which charges being brought against the defendant are so grave that they might entail the death penalty, it seems to me incompatible with real justice that the defendant should on account of his impaired condition, be deprived of the rights granted him under Article 16 of the Charter. This Article of the Charter makes provisions for the defendant's own defense, for the opportunity of giving evidence personally, and for the possibility of cross-examining every witness called by the Prosecution. All this is of such great importance for the Defense, that exclusion from any of these rights would, in my opinion, constitute a grave injustice to the defendant. A trial in absentia could therefore not be regarded as a fair trial If as I have stated the defendant's capacity to defend himself is reduced for the reasons agreed on and to the extent established in the reports of the experts, then he is also not in a position to give his counsel the information necessary for a defense conducted in the defendant's absence. Since the Charter has clearly laid down these rights of the defendant's, it seems unjust to me as defense counsel, that the defendant should be deprived of them because his illness prevents him from personally safeguarding them by attending the proceedings. The provisions in Article 12 of the Charter for trying a defendant in his absence must surely be looked upon as applying in an exceptional case of a defendant who endeavors to evade the proceedings although able to plead.
DR. VON ROHRSCHEIDT: But the Defendant Hess has told me, and he will probably emphasize it to the Tribunal, that he wishes to attend the proceedings; that he will therefore consider it particularly unjust if the proceedings are conducted in his absence, despite his good will, despite the fact that he wishes to attend them. I therefore request the Tribunal, if it declares the defendant unfit to plead, that it will not proceed against him in his absence. And now my third application: If the Tribunal considers the Defendant Hess fit to plead, thereby overruling my opinion and what I think is also the conclusion of the medical reports, I request that additional medical experts be consulted to re-examine this question since as far as I saw from the reports, each of the doctors examined and talked to the defendant for only a few hours on one day, one of them on two days. In a case of such outstanding importance as this one I think it would be necessary to place the defendant into a suitable hospital to obtain a reliable picture based on several weeks of examination and observation. The experts themselves are, obviously, not quite sure whether Defendant Hess beyond his inability to plead, is insane or at least not of sound mind. That is clear from the fact that all the medical statements end by emphasizing that if the Tribunal does not consider the defendant unfit to plead, he should again be subjected to a psychiatric examination. I think therefore that this suggestion of the psychiatrists who have already examined him should be followed, and I request, that if the Tribunal considers the defendant fit to plead another exhaustive medical examination be authorized.
THE PRESIDENT: I want to ask you one question: Is it not consistent with all the medical opinions that the defendant is capable of understanding the course of the proceedings, and that the only defect from which he is suffering is forgetfulness about what happened before he flew to England?
DR. VON ROHRSCHEIDT: Mr. President, it is true that the experts consider the Defendant Hess capable of following the proceedings. But, on the other hand, in answer to the questions put to them, they emphasize that the defendant is not capable of defending himself. The Tribunal asked the experts to give their opinion on the question-may I read it again, under the second point: "Is the defendant sane or not?" The question was answered in the affirmative by all experts, but that does not exclude the fact that the defendant might, at this moment, be incapable of pleading. The Tribunal's question was this: "...the Tribunal wishes to be advised whether the defendant is of sufficient intellect to comprehend the course of the proceedings of the Trial so as to make a proper defense, to challenge a witness, to whom he might wish to object, and to understand the details of the evidence." This is the wording of the translation in my possession. In my view this question is answered by the experts to the effect that the defendant is incapable of adequately defending himself, of rejecting the testimony of a witness and of comprehending evidence submitted. That, as I see it, is the conclusion of all the experts' reports with the exception of the one signed by the Russians. May I refer to the report signed by the American Delegation, dated 20 November 1945, it is stated there under Number 1: "We find as a result of our examinations and investigations, that Rudolf Hess is suffering from hysteria characterized in part by loss of memory." Now comes the passage to which I should like to draw the Tribunal's attention: "The loss of memory is such that it will not interfere with his comprehension of the proceedings, but it will interfere with his response to questions relating to his past and will interfere with his undertaking his defense." This report thus establishes that Hess' defense will be impaired. And I believe that if the experts go so far as to admit that his memory is affected, then one may assume that to a great degree he is not fit to plead.
DR. VON ROHRSCHEIDT: The report of the Soviet French representatives, signed by the Russian professors and by Professor Jean Delay goes even further in stating that, although the defendant is able to comprehend all that happens around him, the amnesia affects his capacity to defend himself and to understand details of the past and that it must be considered an impediment. As I see it, the report clearly means that, although the defendant is not insane, and although he can follow the proceedings as such, he cannot defend himself as he is suffering from a form of amnesia which is based on hysteria and which can be believed.
THE TRIBUNAL (Mr. Biddle): Do you accept the opinion of the experts?
DR. VON ROHRSCHEIDT: Yes.
THE TRIBUNAL (Gen. Nikitchenko): I should like to draw the attention of Defense Counsel to the fact that he has referred inaccurately to the decision reached by the Soviet and French experts. He has rendered this decision in a free translation which does not correspond to the original contents.
DR. VON ROHRSCHEIDT: May I ask whether the report of November 16 is meant? May I once more read what my translation says? I can only refer to the translation of the English text that was given to me; this translation was made in the Translation Division of the Secretariat and handed to me. May I repeat that the translation in my possession refers to the report of November 16, 1945 signed by members of the Soviet Delegation and by Professor Delay of Paris. Under point 3 of this report the following is stated: "At present he is not insane in the strict sense of the word. His amnesia does not prevent him completely from understanding what is going on around him but it will interfere with his ability to conduct his defense and to understand details of the past which would appear as factual data." That is the text which I have here before me in the authentic German version.
THE PRESIDENT: That is all we wish to ask you. Does the Chief Prosecutor for the United States wish to address the Tribunal?
MR. JUSTICE JACKSON: I think General Rudenko would like to open discussion, if that is agreeable.
THE PRESIDENT: Yes. Are you going on?
GEL. RUDENKO: In connection with the statement made by counsel for the defendant, on the results of the evidence of Hess' certified psychological condition, I consider it essential to make the following declaration: The defendant's psychological condition was confined by experts appointed by the Tribunal. These experts came to the unanimous conclusion that he is sane and responsible for his actions. The Chief Prosecutors, after discussing the results of the decision and acting in accordance with the order of the Tribunal, make the following reply to the inquiry of the Tribunal: First of all, we do not question or doubt the findings of the commission. We consider that the Defendant, Rudolf Hess, is perfectly able to stand his trial. This is the unanimous opinion of the Chief Prosecutors. I consider that the findings of the examinations by the experts are quite sufficient to declare Hess sane-and able to stand his trial. We therefore request the Tribunal to make the requisite decision this very day. In stating his reasons for the postponement of the proceedings or for the settlement of the defendant's case, defense counsel referred to the decision of the experts. I must state, however, that this decision-and I do not know on what principle it was reached- was quoted quite inaccurately. In the summary submitted by defense counsel, it is pointed out that the mental condition of the Defendant Hess does not permit him to defend himself, to reply to the witnesses or to understand all the details of the evidence. This is contrary to the decision submitted by the experts in their statement. The final conclusion of the experts definitely states that his loss of memory would not entirely prevent him from understanding the trial; it would, however, make it impossible for him to defend himself and to remember particulars of the past. I consider that these particulars, which Hess is unable to remember, would not unduly interest the Tribunal.
GEL. RUDENKO: The most important point is that emphasized by the experts in their decision, a point which they themselves never doubted and which, incidentally, was never doubted by Hess' defense counsel, namely-that Hess is sane; and in that case Hess comes under the jurisdiction of the International Tribunal. On the basis of these facts I consider that the application of the Defense should be denied as being unsubstantiated.
SIR DAVID MAXWELL-FYFE: May it please the Tribunal, it has been suggested that I might say just a word, and as shortly as the Tribunal desires, as to the legal conceptions which govern the position with which the Tribunal and this defendant are, placed at the present time. The question before the Tribunal is whether this defendant is able to plead to the Indictment and should be tried at the present time. If I might very briefly refer the Tribunal to the short passages in the report, which I submit are relevant, it might be useful at the present time. According to the attachments to the order, which I have, the first report is that signed by the British doctors on the 19th November 1945. And in that report I beg the Tribunal to refer to Paragraph 3, in which the signatories say that at the moment he is not insane in the strict sense. His loss of memory will not entirely interfere with his comprehension of the proceedings, but it will interfere with his ability to make his defense and to understand details of the past, which arise in evidence. The next report is that signed by the American and French doctors, and in Paragraph 1, the Tribunal will see: "We find, as a result of our examinations and investigations, that Rudolf Hess is suffering from hysteria characterized in part by loss of memory. The nature of this loss of memory is such that it will not interfere with his comprehension of the proceedings, but it will interfere with his response to questions relating to his past and will interfere with his undertaking his defense." 30 Nov.45 If the Tribunal will proceed to the third report, signed by the Soviet doctors, at the foot of Page 1 of the copy that I have there is a paragraph beginning "Psychologically..." which I submit is of importance: "Psychologically, Hess is in a state of clear consciousness; knows that he is in prison at Nuremberg, under indictment as a tear criminal; has read, and, according to his own words, is acquainted with the charges against hi He answers questions rapidly and to the point.