Therefore, the defense reserves the right, after the conclusion of its examination of Dr. Rasch and in summarizing the facts which result from the proceedings today to ask the Tribunal to rule upon the motion of dismissing the proceedings and setting aside the case.
THE PRESIDENT: Dr. Surholt, your motion of September 5th was not ruled upon for the reason that a decision could not be made without a thorough mental and physical examination of the defendant. A report on that examination eventually made by a board of three physicians was submitted to the Tribunal on December 11. We now have that report before us. of the proceedings, in so far as he is concerned, the Tribunal will then be in possession of all the facts, knowledge, and information needed in order to pass upon the motion. This motion is pending and is still valid and will be ruled upon at the appropriate time.
DR. SURHOLT: Your Honor, I thank you for the explanation of the Tribunal and it agrees with the explanation the defense just made.
MR. HORLICK-HOCHWALD: If the Tribunal please, the prosecution will waive their right of cross-examination of the Defendant Rasch. However, we have prepared a document book containing the documents which we would have put to the defendant, if we would have cross-examined him. These documents are unfortunately not yet processed. We will submit them to the Tribunal and to the defense at the earlist possible convenience.
If Dr. Rasch wants to answer or wants to comment on these documents, I think it should be appropriate not to call him back on the witness stand, but the prosecution would have no objection if such comment would be made in the form of an affidavit.
THE PRESIDENT: We do not, however, exclude that if the defendant desired to avail himself of the right orally to explain any of these documents or make answer to them, that he could then, providing he was physically able and mentally desirous of doing so, come back to the witness stand.
MR. HORLICK-HOCHWALD: We have made the suggestion of an affidavit only to facilitate matters for the Defendant Rasch.
THE PRESIDENT: Very well.
DR. SURHOLT: It is the opinion of the defense and this point is different from that of the prosecution, as far as the defense is informed, the prosecution and the Tribunal especially were of the opinion that the Defendant Dr. Rasch, in view of the medical opinions available, could not stand a cross-examination. Therefore, the prosecution has kindly, as it put it, waived a cross-examination. Now it has just been explained that those documents, which would have been the subject of the cross-examination are to be submitted afterwards. I consider that this is a round-about method, which does not correspond to the situation in which the defendant Rasch finds himself, as far as the trial is concerned. For the defense, especially, for the Defendant Dr. Rasch, it is of importance, and I would say in consideration of the peculiarity of such a trial, the facts of which case are of a collectivistic nature, it is perhaps decisive for such a defendant that the various defendants, and, I am speaking of Dr. Rasch, he allowed to explain and describe their personality to the Tribunal and that they have an opportunity, as far as important counts of the indictment are concerned, to be able to use their personality in explaining them in order to answer the charges. Under these circumstances, I see in the waiving of the cross-examination by the prosecution, if it is willing to submit the material later on, without the defense having the possibility of answering them personally, I see in this a very clear restriction on the defense. the participants in the trial were in agreement in principle that Dr. Rasch could not stand a cross-examination. I think that under those circumstances, the intention of taking Dr. Rasch into cross-examination would not have been necessary.
DR. HORLICH-HOCHWALD: Of course, it goes without saying that the prosecution has no objection that Dr. Rasch himself testifies on the documents, which we will present. However, if we waived the right of COURT II CASE IX rebuttal and we should be entitled to submit in rebuttal every document to rebut the statements.
I have documents to rebut the statements which will be made in direct examination by Dr. Rasch. As to the documents, when we wanted to put in the documents earlier than in rebuttal, it was only to facilitate for defense counsel for Dr. Rasch and for the defendant himself to react to these documents, so we still take the position that the procedure suggested by the prosecution facilities and does not impede the defense of the Defendant Dr. Rasch.
DR. SURHOLT: The defense is of the opinion that the statement of the Prosecution needs no answer. I have already given the reasons for it.
THE PRESIDENT: Then I don't see where you are in any way impeded, Dr. Surholt, by the procedure announced by Mr. Hochwald. You are in no way prejudiced in the presentation of your defense. The defendant will testify, and then later when these documents may be processed, and we are always confronted with the mechanical difficulties in this business, they will be submitted to you, you will read them over, and you will confer with your client. If your client desires to make answers to them in written form, Mr. Hochwald has indicated that he is willing, and will interpose no objection to an affidavit being submitted by your client. If your client is willing and desirous of orally explaining the documents in court, that right will be permitted him, so I don't see how in any way you will be prejudiced by the procedure outlined by Mr. Hochwald.
DR. SURHOLT: Well-- I see only that by this procedure......
THE PRESIDENT: Perhaps, Dr. Surholt, the difficulty lies in this, that perhaps you understand from what Mr. Hochwald said that Mr. Hochwald would cross examine the defendant on the documents, but I don't think that Mr. Hochwald intends that.
MR. HOCHWALD: Your Honor, please, the Prosecution has no desire to cross examine the witness, Dr. Rasch, at all.
DR. SURHOLT: Well that is just it. The charges which are to be included in the cross examination are merely being posponed, and in the personality especially of Dr. Rasch, I don't consider it an advantage, but a disadvantage to the defense, if the defendant can not stand the cross examination in these matters for physical reasons. For reasons of the defense it would have been very desirable for the defendant, Dr. Rasch, because only in this cross examination, where it always effects the personality of the man, it would important for Dr. Rasch to answer the charges personally, but perhaps we can begin the examination.
MR. HOCHWALD: If Your Honors please, it goes without saying that the Prosecution presents its case as the Prosecution sees fit. Whether we intend to cross examine the defendant, or not, is entirely up to the Prosecution to decide. Nobody can compel the Prosecution to cross examine the witness. However, I want to repeat that we have waived the right of cross examination only in Order to facilitate the examination for Dr. Rasch.
THE PRESIDENT: Dr. Surholt.
DR. SURHOLT: Yes.
THE PRESIDENT: It is not quite clear just what you object to. You have now indicated that you deplore that there will be no cross examination, which is certainly a very novel statement coming from any defense counsel, but whatever you feel could be brought out in cross examination you certainly can bring out in direct examination
DR. SURHOLT: Yes
THE PRESIDENT: -- and if you wish to take the belligerent attitude which you assume is alwaysinherent in the cross examiner, then you can rest your fears and cross examine, if you want crossexamination.
DR. SURHOLT: No, Your Honor, I am of the opinion that the cross examination would be completely impossible for the defendant, and that for this reason it was waived, but if the charges which were to be brought up on cross examination are brought up later, without the defendant being able to answer them personally, and being questioned about them personally, then I do not consider this an advantage but a deterioration of the defense situation, but perhaps.......
THE PRESIDENT: Yes, but Dr. Surholt, you have completely overlooked what I said, that after the defendant reads the documents, we will permit him to reply by affidavit by oral statement by examination anyway that he and you agree is the best way to do it.
DR. SURHOLT: Yes.
THE PRESIDENT: And we will say to you, Dr. Surholt, that in examining the defendant Rasch, that you need not do it in the formalistic manner; you can talk with him conversationally, and if we can arrange it so that the interpreting process will not in any way be impeded, you might even stand close to him, and we won't restrict you to the formal manner of examining, so that if by a question even a little bit leading, you can more quickly get an answer from the defendant that will be permissible.
DR. SURHOLT: Thank you, Your Honor.
THE PRESIDENT: Captain Carpenter, will you kindly step within the pit. Captain Carpenter, I should like you standing close, or Sitting close to the defendant. Will you please take a Seat at the counsel table now. (Captain Carpenter sits at the counsel table of the Prosecution within reach of the witness box). Dr. Surholt would you want to sit next to the defendant, and both of you use the same microphone, or would you prefer to stand where you are?
DR. SURHOLT: Your Honor, I shall try out whatever is best.
THE PRESIDENT: Very well.
DR. SURHOLT: I already explained to you the other day that I shall proceed in as little a formal manner as possible in order to facilitate things for the defendant, who is very much subjected to mental tensions.
THE PRESIDENT: We will first try it with you standing at the podium. If we have difficulties, then you might move to a point closer to the defendant, and attempt it that way.
DR. SURHOLT: Yes.
THE PRESIDENT: The defendant Rasch will now be brought into the courtroom. Before the defendant is brought in, Dr. Aschennauer, I presume, you will be available in the event we need you for the purpose of your presenting the document books today.
DR. ASCHENAUER: I shall need about one and a half to two hours, Your Honor.
THE PRESIDENT: Yes, I only ask that you hold yourself in availability. follows:
DR. SURHOLT: Dr. Rasch, you know which charges are contained in the Indictment against you. In the municipal hospital, when personally interrogated, you have made the statement that you considered yourself as not guilty, and as your defense counsel you have given me the reasons which were important for you in making this statement. I want you to try now in a very easy manner to express these reasons here in the courtroom. Please give the Tribunal your personal data, what is your name ----
THE PRESIDENT: Dr. Surholt, he has not yet been sworn. Lt. see that his earphones are applied.
JUDGE SPEIGHT: He need not stand. I don't know whether the witness can raise his right hand, or not. Witness, can you raise your right hand?
THE WITNESS: Yes, I can.
JUDGE SPEIGHT: Raise your right hand. I swear by God, the Almighty and Omnicient, that I will speak the pure truth and will withhold and add nothing. (The witness repeated the oath) BY DR. SURHOLT:
Q Dr. Rasch, please give your first name and your last name?
Q When were you born?
Q Where?
Q. What are your present family conditions?
A. In February, 1944, my wife died in a terror attack on Berlin. I have three children, girls, at the ages of eleven to fourteen years.
Q Well, Dr. Rasch, then you were born in East Prussia, and as I know, on an estate called "Friedrichsruhe." Will you tell us, please, briefly how the conditions......you still hear me?
Q - - - (continuing) What the conditions were in your family?
A My father was a farmer. He had a brick factory. The industrial development in East Prussia didn't begin until after the First World War. Actually, not until after 1930. Around the turn of the century, the industrial firms in East Prussia had essentially the character of agricultural enterprises, brick factories, distilleries and sawmills.
Q Dr. Rasch, perhaps you will tell us briefly about your family?
A Well, I want to say that my father was well to do. Seen from a socialogical standpoint, he belonged to the patriarchial order. It was ordered from above, and from below, it was obeyed. On the other hand, my father considered it his uppermost duty to take care of everyone of his people. This social duty came from the deeper moral awareness from religion. My parents were very devout. Everything is beginning to swim before my eyes.
Q Do you still hear me clearly when I talk to you?
DR. SURHOLT: Your Honor.......
THE PRESIDENT: Captain Carpenter, will you please examine the witness to see if he may continue. (Thereupon Captain Carpenter holds the wrist of the witness) Will one of the interpreters please go to the witness stand to interpret for the Doctor.
THE WITNESS: I merely see colors and lights, and in my ears there is a funny sound, just like in a radio.
THE PRESIDENT: Will Captain Carpenter come to the bench, please. (Whereupon Captain Carpenter appears before the Bench and discussion ensues outside the record). The Tribunal will be in recess a few minutes, and Captain Carpenter will confer with the Tribunal during that recess. Dr. Surholt will hold himself in readiness to be called into the conference, as well as Mr. Hochwald.
DR. OTTO RASCH- resumed
THE HARSHAL: The Tribunal is again in session.
THE PRESIDENT: Will you apply the ear phones, Lieutenant?
Dr. Surholt, you may proceed. BY DR. SURHOLT:
Q. Dr. Rasch, you were just about to tell us what the conditions were in your family. Please briefly describe the education by your parents and their methods, especially of your father. Do you hear me? Do you hear me, Dr. Rasch?
A. Yes, but badly. You mean educational methods?
THE PRESIDENT: It is very obvious, of course, to everybody that you are an ill man and the only reason that we are proceeding in spite of your illness is to give you an opportunity to explain the serious charges which have been filed against you. Try to be as calm as possible and take your time in answering.
A. Well, that is just the difficulty. The more I have the will to calm myself the worse do the physical disturbances get.
THE PRESIDENT: How about your comprehension of the questions which are put to you? Do you understand me clearly?
A. I understand the sense of the question but there is a strong noise and it is coming through very indistinctly.
THE PRESIDENT: Well, we will try to proceed. BY DR. SURHOLT:
Q. Dr. Rasch, back home in East Prussia didn't you get the first moral directions in your life from your father? Will you just briefly describe it?
A. At home I was educated very devoutly. That was in accord with the almost pious devoutness of my parents. My father taught Me the love of my country, love of nature, and how to hunt.
11-M-MJ-6-2-Gross (Lea) all he taught me the moral principles of hunting. He taught me that hunting was not just shooting and killing of game but it was also the care of and respect for the Creator and his creatures.
Q. How long were you at home, Dr. Rasch?
A. I lived in this atmosphere until the 10th year of my life.
THE PRESIDENT: Witness, just what did you mean by the moral principles os hunting? What morality was involved?
A. Hunting in the German sense demanded that the individual, even if he is completely unobserved in his area, realises his obligations toward the creatures, and that he is to refrain from everything which violates these, for example, shooting during the time it is prohibited that is, during the time the animals are protected, shooting of the mother as long as her young ones need her and only shooting on careful deliberation, not to satisfy one's passion for it.
Q. Thus, until the tenth year of your life you were back home, Dr. Rasch? How did you development proceed further, briefly?
A. When I was 10 years old I entered the Royal High School in Luck.
Q. Thus from the 6th to 10th year you visited grammar school in Friedrichsruhr and when 10 years old came to high school in Luck?
A. Yes, that is right. There I lived with an aunt.
Q. How far did you get in high school?
A. Until two years before graduation.
Q. You left after 10 years of school then?
A. I did not want to go to the university at that time and the grade I attained was considered as sufficient education.
Q. Do you have any special memories from this time which are important in your life?
A. I was a good student and I was on friendly terms with most of my teachers. I enjoyed a relationship of confidence with them. This lasted during my entire life.
11-M-MJ-6-3-Gross (Lea)
Q. Then you volunteered for the Agriculture Department in Luck to receive training?
A. No, with the Landrat, government counsellor.
Q. And you stayed there six months?
A. Yes, approximately.
Q. And then you went to the bank of the East Prussian Agriculture?
A. Yes.
Q. You remained there about one year?
A. Yes, one year.
Q. Do you still understand me, Dr. Rasch?
A. Well it's getting worse again.
Q. Then you became the private secretary of a count zu Dona? You still hear me?
A. Yes.
Q. And then your life took a different course from then on. Can you briefly explain why?
A. The Count zu Dona took me along on some of his trips. The Court is beginning to shake. Well, he took me along on some of his trips. He took me to Paris.
THE PRESIDENT: Just a moment. You may suspend just a moment, witness.
The witness will be removed from the courtroom. The Tribunal will take its morning recess.
THE MARSHAL: The Tribunal is again in session.
DR. LUMMERT (Attorney for the defendant Blume): Your Honor, I would like to have the defendant Blume excused this afternoon in order to be able to prepare his defense With him.
THE PRESIDENT: The defendant Blume will be excused from attendance in court this afternoon.
DR. RATZ (Attorney for the defendant von Radetzky): Your Honor, I have a short but urgent request to make. On the 6th of January, I requested of the Secretary-General that I be permitted to speak to the Witness Hartl; the witness Hartl was granted to me according to a ruling of the court of the 3rd of October, 1917. The prosecution objected to my request, giving the reason that the Witness Hartl had already been examined in a direct examination and had been questioned by me.
I, however, would like to say this: that I think it is absolutely necessary to speak to the witness Hartl again concerning the document which the prosecution submitted from the personal files of the defendant von Radetzky Subsequently. This document was only submitted by the prosecution after the examination of the witness Hartl, namely on the the 17th of December and it contains completely new points about which I want to question the Witness Hartl. speak to the witness. If I am not permitted to do this, I am at a disadvantage in presenting the defense in this case, because this very point, which has been submitted by the prosecution subsequently, is a new aspect on which I have to obtain and submit new evidence.
MR. HORLICK-HOCHWALD: If the Tribunal please, it is the position of the prosecution that Dr. Ratz is mistaken by saying that by the introduction of the document to which Dr. Ratz refers a new aspect was opened in the case.
We have asserted and also offered proof that the defendant von Radetzky was a leader of a Teilkommando. I merely remind the Tribunal of the affidavit of the witness Kroege which we have introduced in our case in chief in Document Book III-C. I haven't got the document book with me and I can't give the document numb er, but this dooument was already introduced in the case in chief. The document which we have introduced in cross-examination is nothing else than a corroborative document to this statement of Kroege. As the witness Hartl was on the stand after the case in chief of the prosecution had been presented, Dr. Ratz had full opportunity to ask the Witness Hartl questions in connection with the position of the defendant von Radetzky. Dr. Ratz has cross-examined the Witness Hartle at great length and I do think he should have exhausted all information which can be elicited from this Witness. That is the reason why the prosecution did object against further examination of the witness Hartl. I might add in passing that the Tribunal has excused the witness.
THE PRESIDENT: Mr. Hochwald, we have always adhered to the principle that a trial is not a gladiatorial combat between attorneys and no defendant or client should be made to suffer because of the lapse of his attorney, if there is a lapse. Now Dr. Ratz did have an opportunity to cross-examine this witness. He now tells us, and We certainly must accept that he tells us in good faith, that he wishes to put another question to him and we will not deny him that opportunity merely because of the procedure usually accepted that once a witness has taken the stand that finishes that Witness.
True, ordinarily that is the situation, but if Dr. Ratz, indicates that in order to properly present his case it is necessary to talk again to Hartl the Tribunal will not deny him that opportunity, because our policy has been from the very beginning to give defense counsel every opportunity to examine, cross-examine, investigate, interrogate, and to bring in anything which they believe is relevant, up to the social life of the penguins, as we explained before.
MR. HORLICK-HOCHWAID: Very well, Your Honor.
THE PRESIDENT: So that you may interrogate the witness Hartl, Dr. Ratz.
DR. RATZ: Thank you, Your Honor.
THE PRESIDENT: You are welcome.
Did you want to say something, Dr. Aschenauer?
DR. ASCHENAUER: No .
THE PRESIDENT: The Witness Rasch will be brought into the courtroom.
)The witness was brought into the courtroom)
THE PRESIDENT: Witness, we want you to understand that this hardship to which you are being subjected is not intended as a hardship. According to the Anglo-American procedure, every defendant is presumed innocent until proved guilty beyond a reasonable doubt. You therefore stand before the court as an innocent man. You Were charged with crime, very serious crime, and the Tribunal is required to give you every opportunity to answer these charges. Thus, you are brought into court, not with the thought of subjecting you to an unpleasant and uncomfortable experience, but rather to a pleasant and comforting one in that at last you will have the opportunity to speak to the world. If you don't wish to speak, you are not required to do so and if you would indicate at any time that you do not wish to be brought into the courtroom you will not be brought into the courtroom. It was because we were assured that you had no objections to coming into court, namely in taking the stand in your behalf, that you were brought in.
We have medical attendants here. You need have no fear about your physical condition, so we again put to you that if, for any reason, you would rather not testify in court, you need merely indicate that through your counsel or directly and you will not be called upon to answer any of the questions, and we do want the record to show very clearly that you come into court voluntarily and that you are not being subjected to any hardship and are not being compelled to testify.
DR. SURHOLT: Your Honor, as the defensecounsel of the defendant, may I make just one remark? It is the express desire of the defendant obviously to express his opinion and to comment upon the counts of prosecution, by presenting himself in court, but there is no possibility for the defendant to cope with this and to testify beyond his physical ability at the moment to do so. The defense itself is of the opinion that the further examination will result in an exhaustion which will gradually increase and that such examination is not a proper examination of the Witness. The defendant therefore is here voluntarily, but his defense, however, is of the opinion that the actual examination of the witness no longer conforms with the prupose of a proper examination.
THE PRESIDENT: Dr. Surholt, the witness demonstrated an amazing clarity and lucidity of mind this morning on the two occasions that he was questioned. The Tribunal is not aware that he is having any difficulty whatsoever in understanding and comprehension. The only thing we are concerned with is whether his physical condition is such that he may not be able to continue with the examination for any extended period of time. However, all this is a medical question and not a legal one, and so we have in attendance a competent physician and defense counsel is permitted to have in the courtroom any physician that he chooses to call to assist in the determination of the final question as to whether physically this witness is able to continue With the examination which is being put to him sympathetically, because only defense counsel will question, the prosecution having waived cross-examination. with the fact that the prosecution has already submittef its case and, as is true in every instance defense counsel may be willing to accept what has been submitted against a client as true, but yet denying the legal implications sought for by the prosecution, in which event it would be a question of law as to whether the documents establish a prima facie Case.
testify and at any time, he or you, Dr. Surholt, indicates that he would rather not testify, the proceedings, of course, will be immediately halted and he will be taken back to his cell or to the hospital, or wherever he happens to be presently lodged and, of course, your motion, Dr. Surholt, will always be before the Tribunal for determination and eventual decision as to whether he is physically and mentally capable of being heard at all.
DR. SURHOLT: Your Honor, the last decision--
Your Honor, I am not in the shoes of my client and Dr. Rasch himself must know about the borders of his physical ability. He had expressed the Wish to testify and I shall try to continue.
THE PRESIDIENT: Very Well. You may proceed.
Q. (By Dr. Surholt;) Herr Dr. Rasch, before the recess, you spoke about being in the service of the Count zu Dohna, and as Such, you went for trips into foreign countries.
A. Defense Counsel, I am desparately ill.
THE PRESIDENT: Captain Carpenter, will you please look at the defendant and report to the Tribunal?
( Captain Carpenter conferred with the court.)
THE PRESIDENT.: The proceedings will be suspended and the Tribunal will be in recessuntil One forty-five. and, if defense Counsel desires to call in a physician of his own also to examine the defendat, and then the doctors Will report to the Tribunal. At any rate at the present time, we are now to be in recess until one forty-five.
( A recess s was taken until 1345 hours, 12 January 1948.)
THE MARSHAL: The Tribunal is again in session.
DR. DURCHHOLZ: For Dr. Riediger for the Defendant Haensch, I ask that the Defendant Haensch be excused from the remainder of today's session and for all of tomorrow's session in order to prepare his defense and to instruct that he be immediately taken to Room 57.
THE PRESIDENT: The Defendant Haensch will be immediately excused this afternoon and will be taken to Room 57 and he will also be excused from attendance in court tomorrow.
DR. DURCHHOLZ: Thank you.
THE PRESIDENT: Is there no way of adjusting the position of the defendant to that the Tribunal may actually see his face?
Witness Rasch, do you hear the Tribunal speaking? Witness Rasch, do you hear the Tribunal speaking?
THE WITNESS: Yes, I hear. I hear something, but very indistinctly.
THE PRESIDENT: We Shall make another attempt to continue with the examination, so you will please endeavor to cooperate in the best way that you can. The only reason that you find yourself exposed to this rather uncomfortable situation is that in this trial an indictment has been returned against you and co-defendants. This indictment, insofar as you are concerned, charges you -- and evidence has been submitted to support the charges -- that during the time you were in command of Einsatzgruppe C killed more than 75.000 people. There is quite a list of charges, each one of which indicates that illegally you caused the death of thousands of defenseless and helpless people. It is because of the enormity of these charges that you have been brought into the court so that you may have an opportunity to explain whatever you want to explain in answer to these grave charges.
Is that all very clear to you?
THE WITNESS: No, I heard a few words, but I did not comprehend them. I am so terribly tired.
THE PRESIDENT: Dr. Surholt, would you attempt to ask him the substance of what the Tribunal has just said?
DR. SURHOLT: Your Honor, what has just been said is, of course, the nucleus of what happened and which is the substance of the indictment. But this morning already I pointed out that the defense does not see its most important task in this fact that one, two, or three more executions are discussed here, but that it be clarified what the defendant's inner attitude was to the facts in the case and what his attitude is today and this proof can only be produced from the connections of the most important dates in his life, and, of course, above all, the most important dates of his political life.
THE PRESIDENT: Dr. Surholt, you will admit that any person charged with 75.000 murders should be given every opportunity to exculpate himself even at the expense of physical discomfort?
DR. SURHOLT: Certainly.
THE PRESIDENT: We want to make this very clear so that no one may get the impression that the defendant is being treated with but little compassion. There is the greatest of sympathy for his physical condition, but in his own behalf it must be uttered that with a crime of this appalling nature charged against him that he be given an opportunity to explain why he finds himself in this legal situation and that that of itself might even offer a comfort to him in that he had his chance in court to speak.
DR. SURHOLT: Your Honor, there is no disagreement Of opinion about that, but at the moment it was not clear to me when I was supposed to start my examination after the words of the President, at what point I was supposed to start. This morning, we briefly described the education of the defendant at home and his first schooling; that that he left school -