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MOTIONS, RULINGS, AND EXPLANATORY MATERIAL
RELATING TO CERTAIN OF THE DEFENDANTS
Although 24 individuals were named as defendants in the Indictment signed in Berlin on 6 October 1945, only 22 remained as defendants when the trial commenced on 20 November. The number had been reduced by the suicide of Robert Ley and by the Tribunal's severance of Gustav Krupp von Bohlen und Halbach from the proceedings. Of the 22 surviving defendants only 20 appeared in the prisoners' dock at the opening of court. Martin Bormann, in the absence of clear evidence to the contrary, was presumed to be alive and at large. Ernst Kaltenbrunner had been hospitalized by a cranial hemorrhage, and as a consequence was unable to be present at the trial save for one period of a few days.
Defense counsel for two of the twenty men in the prisoners' dock, Hess and Streicher, sought to have the proceedings against their clients dismissed on the grounds of their mental incapacity to stand trial. Expert medical examiners concluded that both defendants were fit to defend themselves, and the proceedings against them were resumed. One of them, Hess, who had claimed to be a victim of amnesia, created something of a sensation by confessing in open court that he had only been pretending to suffer from amnesia and that his memory was actually in good repair.
Fuller explanatory notes concerning the positions taken by the prosecution and the defense and the actions of the Tribunal in the cases of each of these six defendants, together with significant papers bearing on these matters, are printed hereinafter.
1. ROBERT LEY
Pending the opening of the trial on 20 November 1945 the defendants were held in the prison at the Palace of Justice in Nurnberg, under the custody of the United States Army. In the evening of October 25 the guard on watch before the cell of Robert Ley noticed that the prisoner had maintained the same position for some time without moving. The guard entered the cell to find that although the prison officials had taken every known precaution, Ley had succeeded in committing suicide. Ley had ripped the hemmed edge from a towel, twisted it, soaked it in water, and fashioned it into a crude noose which he fastened to an overhead toilet flush pipe. He had then stuffed his mouth with rags, apparently torn from his own underwear. When he seated himself, strangulation was produced, and Robert Ley had succeeded in accomplishing his exit from the court of judgment, and from the world of living men. A farewell message written by Ley, together with other statements made by him during imprisonment, may be found at the end of the last volume (Statements XIXIII).
2. GUSTAV KRUPP von BOHLEN und HALBACH
The name of Gustav Krupp von Bohlen und Halbach stood thirteenth on the list of twenty-four defendants accused in the Indictment signed in Berlin on 6 October 1945. On 4 November counsel for Krupp filed a motion requesting that the Tribunal defer proceedings against the defendant until his health permitted him to stand trial, and that he should not be tried in his absence. The Tribunal on 5 November appointed a medical commission consisting of representatives of the Soviet Union, France, Great Britain, and the United States, to examine Krupp and determine whether he was fit to stand trial. On 12 November the Chief of Counsel for the United States filed an answer opposing the motion of defense counsel and proposing that Gustav Krupp should not be dismissed from the proceedings unless Alfried Krupp, the son and sole owner of the Krupp Works, were substituted as a defendant. On 14 November, before the opening of the trial itself, the Tribunal heard oral argument by the prosecution and defense, in which substantially the same views were presented as had been previously expressed in the written motions.
The Tribunal on 15 November announced its ruling postponing the proceedings against Gustav Krupp, but retaining the Indictment charges against him on the docket for later trial if his physical and mental condition should permit. The ruling stated that the question of adding another name to the Indictment would be considered later. Thereupon, on 16 November, the American Chief of Counsel filed a memorandum with the Tribunal stating as a matter of record that the United States was not committed to participate in any subsequent four-power trial. On the same day the Soviet and French Chief Prosecutors joined the United States Chief of Counsel in a motion formally designating Alfried Krupp a defendant. On the following day the Tribunal announced its ruling rejecting the motion to add the name of Alfried Krupp as a defendant.
The significant papers pertaining to these questions are set forth below.
A. MOTION BY DEFENSE COUNSEL FOR POSTPONEMENT OF PROCEEDINGS AGAINST GUSTAV KRUPP VON
BOHLEN UND HALBACH
Nurnberg, 4 November 1945 THEODOR KLEFISCH LAWYER COLOGNE, 43, BLUMENTHALSTRASSE
To: The International Military Tribunal Nurnberg.
As defending counsel to the accused Dr. Gustav Krupp von Bohlen und Halbach I beg to state that the proceedings against this accused be deferred until he is again fit for trial.
At any rate I request that the accused be not tried in his absence.
Reasons By Article 12 of the Statute of the International Military Tribunal this court has the right to try an accused in his absence if he cannot be found, or if the court deem this necessary for other reasons in the interest of justice.
The 75 year old accused Krupp von Bohlen has for a long time been incapable of trial or examination owing to his severe physical and mental infirmities. He is not in a position to be in contact with the outside world nor to make or receive statements. The indictment was served on him on the 19th October 1945 by a representative of the International Military Tribunal by placing the document on his bed. The accused had no knowledge of this event. Consequently he is not aware of the existence of an indictment. Naturally therefore he is not capable of communicating either with his defense counsel nor with other persons on the subject of his defense.
To prove the above, 2 medical certificates are enclosed viz. that of the court medical expert Doctor Karl Gersdorf of Werfen Salzburg of 9th September 1945 and that of the Professor Doctor Otto Gerke of Bedgnstein of 13th September.
Latterly Herr Krupp von Bohlen has been examined several times by American military doctors. As far as it is possible I should like to request for another complete medical examination. If the accused is unable to appear before the court, then according to article 12 of the statute he could only be tried if the court deemed it necessary in the interests of justice.
Whatever may be understood by the phrase "in the interests of justice" it would hardly be objective justice to try a defendant accused of such serious crimes, if he were not informed of the
contents of the accusations or if he were not given the chance to conduct his own defense or instruct a defense counsel. Particularly is he in no condition to comprehend the following rights of an accused set out in the statute:
1. By article 16 Section (a) of the statute a copy of the indictment in a language which he understands will be served on the accused at a suitably appointed time. In the first place this concerns the statement which the accused has to render on inquiry as to whether he admits his guilt or not, a statement which is of particular importance for the course of the trial and for the decision of the tribunal. This is all the more important as this statement regarding guilt or innocence can only be made exclusively by the accused himself according to his own judgment and after examining his conscience. So far as the procedure is admissable at all, the defense counsel could not at the request of the court express himself on the question of guilt as such a declaration presupposes the possibility of communication and understanding with the accused.
Also the defendant could not exercise the right to the last word to which he is entitled according to Article 24 Section f.
The legislators who set up these guarantees for the defense, cannot wish to deny them undeservedly to an accused who cannot make use of them owing to illness. If by Article 12 of the statute the trial of an absent defendant is allowed then this exception to the rule can only be applied to a defendant who is unwilling to appear though able to do so. As is the case with the criminal procedure rules of nearly all countries, it is on this principle that the rules and regulations concerning the trial of absent defendants are based.
B. ANSWER FOR THE UNITED STATES TO THE MOTION
FILED IN BEHALF OF KRUPP VON BOHLEN
To the International Military Tribunal:
The United States respectfully opposes the application on behalf of Gustav Krupp von Bohlen und Halbach that his trial be "deferred until he is again fit for trial."
If the Tribunal should grant this application, the practical effect would be to quash all proceedings, for all time, against Krupp von Bohlen.
It appears that Krupp should not be arrested and brought to the court room for trial. But the plea is that the Tribunal also
excuse him from being tried in absentia. This form of trial admittedly is authorized by Article 12 of the Charter of the Tribunal. Of course, trial in absentia in the circumstances of the case is an unsatisfactory proceeding either for prosecution or for defense. But the request that Krupp von Bohlen be neither brought to court nor tried in his absence is based on the contention that “the interest of justice" requires that he be thus excused from any form of trial. Public interests, which transcend all private considerations, require that Krupp von Bohlen shall not be dismissed unless some other representative of the Krupp armament and munitions interests be substituted. These public interests are as follows:
Four generations of the Krupp family have owned and operated the great armament and munitions plants which have been the chief source of Germany's war supplies. For over 130 years this family has been the focus, the symbol, and the beneficiary of the most sinister forces engaged in menacing the peace of Europe. During the period between the two World Wars the management of these enterprises was chiefly in defendant Krupp von Bohlen. It was at all times, however, a Krupp family enterprise. Krupp von Bohlen was only a nominal owner himself; his wife, Bertha Krupp, owned the bulk of the stock. About 1937 their son, Alfried Krupp, became plant manager and was actively associated in policy-making and executive management thereafter. In 1940, Krupp von Bohlen, getting on in years, became Chairman of the Board of the concerns, thus making way for Alfried, who became President. In 1943, Alfried became sole owner of the Krupp enterprises by agreement between the family and the Nazi government, for the purpose of perpetuating this business in Krupp family control. It is evident that the future menace of this concern lies in continuance of the tradition under Alfried, now reported to be an internee of the British Army of the Rhine.
To drop Krupp von Bohlen from this case without substitution of Alfried, drops from the case the entire Krupp family, and defeats any effective judgment against the German armament makers. Whether this would be "in the interests of justice" will appear from the following recital of only the most significant items of evidence now in possession of the United States as to the activities of Krupp von Bohlen, in which his son Alfried at all times aided, as did other associates in the vast armament enterprises, all plotting to bring about the second World War, and to aid in its ruthless and illegal conduct.
After the first World War, the Krupp family and their asso