B. MOTION BY DEFENSE COUNSEL FOR POSTPONEMENT
OF PROCEEDINGS AGAINST HESS
Attorney-at-law von Rohrscheidt
Defense Counsel for Rudolf Hess
Nurnberg, 29 November 1946
To the General Secretary of the International Military Tribunal,
Nurnberg:
Reference: Rudolf Hess — Session of 30 November 1945.
I. Reply to the request of the Tribunal of 28 November 1945.
II. Preparatory statement for the trial.
I
I, as Counsel for the Defendant Hess, answer the request of the Tribunal of 28 November 1946 as follows:
1. No formal objection is being raised by Defense against presentation and use of the expert opinions obtained by the Tribunal.
2. The Defense does not think the defendant Hess to be “verhandlungsfaehig” (in a state of health to be tried)
3. Material objections are being raised by the Defense, inasmuch as the expert opinion denies the competence of the defendant as a consequence of a mental disorder.
II
For the proceedings, I, as Counsel for the Defendant Hess, wish to make the following statement
1. I move:
a. That a decision be made to adjourn the proceedings against the defendant temporarily.
b. That in case incapacity to be tried is asserted, proceedings in absentia against the defendant should not be carried on.
c. That in case my motion ad a is rejected, a super expert opinion be obtained from additional eminent psychiatrists.
[Page 106]
2. I argue these motions as follows:
ad 1-a: The adjournment of the proceedings is necessary because of the unfitness of the defendant to follow them.
In this respect the (medical) opinions state unanimously upon the questions asked by the Tribunal, that “the ability of the Defendant Hess is impaired to the extent that he cannot defend himself, nor oppose a witness, nor understand the details of evidence.” Even if the amnesia does not keep him from understanding what happens about him or to understand the course of the trial, this amnesia nevertheless has a disturbing effect on his defense.
The impairment of the defendant in his defense, through his amnesia, recognized by all opinions as a mental defect, has to be acknowledged as such, in view of the statements in the opinions of the Soviet, English and American Delegations of 14 November 1945, which designate the mental condition as one of a mixed kind, but more as one of a sort of mental abnormality. This will not make a pertinent defense possible for him (Hess).
In this respect, it does not have to be considered that the defendant is not mentally ill “in the literal meaning of the word” and that he can follow the proceedings. The question whether the defendant is at present incapable, as a result of the diminution of his “mental powers,” to understand all occurrences and to defend himself properly, has nothing to do with his mental derangement when committing the crime.
In the opinion of counsel, the defendant is in no case in a position to make himself understood or to understand argument, because he is impaired in his mental clarity through the loss of his memory and because he has completely lost the knowledge of previous events and of people of former acquaintance.
Since the expert establishment of his mental disorder which impairs the defendant in the full execution of his defense, makes proceedings against him inadmissible, the statement of the defendant that he thinks himself capable of being tried has no significance.
According to expert opinion, the impairment of the defendant cannot be removed within a measurable space of time. It is not sure whether treatment through Narco-Analysis, as proposed by the medical experts, will have the desired result. The defendant has refused to submit to this treatment only because he thinks of himself as capable of being tried and consequently not in need of such treatment. Furthermore, because he is opposed to any forcible influence upon the body, and finally, he is afraid of physical disturbances which would prevent him from participating
[Page 107]
in the trial if such method of treatment is used at this time. The proceedings would have to be dropped in case of an illness of long duration which excludes his fitness to be tried.
ad l-b: According to Article 12 of the Statutes, the Tribunal has the right to proceed against a defendant in absentia if he, the defendant, cannot be located or if the Tribunal thinks it necessary, for other reasons, in the interests of justice. If the Tribunal, on the basis of convincing expert opinions, establishes that the defendant is not in a position to put up a pertinent defense and consequently decides not to proceed against him, proceedings in absentia, according to Article 12, could then only e carried on if this is in the interest of justice. It would not be compatible with objective justice, in case that actual proof of this fact is available, if the defendant is impeded by an impairment based upon health reasons, in personally standing up for his rights and in being present at the trial.
In proceedings which accuse the defendant of such serious crimes and possibly carry the death penalty, it would not be compatible with objective justice if he were personally denied the opportunity to look after his rights as stated in Article 16 of the Statutes. These rights provide for his self-defense. The possibility to “personally present evidence for one’s defense and to cross-examine each witness of the prosecution” is of such importance that any exclusion of such rights has to be considered an injustice toward the defendant. Proceedings in absentia can, under no circumstances, be accepted as a “fair trial.”
The same is true for the exclusion of the defendant from the rights which are granted him during the proceedings according to Article 24.
If the defendant is impaired in his ability to defend himself for the reasons of the expert opinions, and to the extent explained therein, then he is just as little in a position to give his Counsel the necessary information and to enable him to take care of the defense in his absence.
Since the Statutes establish the rights for the defense in this precise manner, it does not seem fair to withhold these from a defendant in a case when he is prevented from personally taking care of his defense during the proceedings. The rules in Article 12, regarding the proceedings against an absent defendant, have to be considered as an exception which should only be used against a defendant who tries to dodge in spite of his being in a position to be tried. The Defendant Hess has always been prepared to be tried in order to avoid proceedings in absentia, which he considers an injustice of the highest measure.
[Page 108]
ad 1-c: In case the Court should not agree with the explanations and should not consider the statements of the expert opinion in the sense of the defense, and therefore come to a denial of the Application ad a, it seems necessary to obtain the super opinion because the opinions testify to the fact that the defendant is a psychopathic personality who suffers from hallucinations and still today shows, in the loss of memory, clear signs of a serious hysteria. If the Tribunal does not consider these sentiments alone as sufficient for the establishment of incapability to be tried, a more intensive examination would have to follow which would not be confined to an examination of only one or two hours on several days, but require a clinical observation.
The opinions, themselves, provide for another examination of the mental condition of the defendant, which seems to prove that the experts possibly have a “disturbance of the mental capacity” in mind if the condition of the defendant lasts and the Tribunal, against expectations, declares the defendant unfit to be tried and therewith incompetent under all circumstances.
/Signed/ von Rohrscheidt
Attorney-at-Law
Translator: Dr. H. v. V. Veith
C. ANSWER BY THE FOUR CHIEF PROSECUTORS
TO THE INTERNATIONAL MILITARY TRIBUNAL:
MATTER OF RUDOLF HESS
The undersigned representatives of their respective nations answer the request of the Tribunal of 28 November, 1945 respectfully as follows:
1. We do not challenge or question the report of the Committee.
2. It is our position that the defendant Rudolf Hess is fit to stand trial.
3. Observations may be filed by any of the undersigned based on their respective relationships to the subject matter.
[signed] R. RUDENKO
For the Union of Soviet Socialist Republics
[signed] C. DUBOST
For the Provisional Government of France
[signed] DAVID MAXWELL-FYFE
For the United Kingdom of Great Britain and Northern Ireland
[signed] ROBERT H. JACKSON
For the United States of America
[Page 109]
(1) Answer by the United States Chief of Counsel
TO THE INTERNATIONAL MILITARY TRIBUNAL:
The United States respectfully files the following observations on the application of RUDOLF HESS:
Hess’ condition was known to the undersigned representative of the United States immediately after his delivery to the Nurnberg prison and was the subject of a report by Major Douglas McG. Kelley of the Medical Corps of the United States Army, which report is attached hereto.
The report of Major Kelley and his recommendation for treatment were submitted to me and on 10/20/1945, I advised that “any treatment of this case involving the use of drugs which might cause injury to the subject is disapproved.” This was not because I disapproved of the treatment. I approve of the treatment and would insist on its being employed if the victim were a member of my own family. But I was of the opinion that the private administration of any kind of drug to Hess would be dangerous because if he should thereafter die, even of natural causes, it would become the subject of public controversy. This completely agreed with the opinion of the Security Officer, Colonel B. C. Andrus, whose report is attached.
In view of the statements contained in the medical report of the Commission and in view of the facts which I have recited, the United States must regard Hess as a victim, at most, of a voluntary amnesia and presenting no case for excuse from trial.
Respectfully submitted
[signed] Robert H. Jackson
Chief of Counsel for the United States.
HEADQUARTERS
INTERNAL SECURITY DETACHMENT
OFFICE US CHIEF OF COUNSEL
APO 403, US ARMY
16 October 1945
SUBJECT: Psychiatric Status of Internee.
TO: Commanding Officer, Internal Security Detachment.
1. Internee Rudolf HESS has been carefully studied since his admission to Nurnberg Prison.
2. On entry HESS manifested a spotty amnesia. The British psychiatrist
[[Page 110]
accompanying him stated that from 4 October 43 to 4 February 45 HESS presented symptoms of total amnesia. From 4 February 45 to 12 July 45 he recovered, and is said to have made a statement that his previous amnesia was simulated. On 12 July 45 he again developed amnesia which has lasted to the present. Also while in England HESS claimed he was being poisoned and sealed up numerous samples of food, chocolate, medicine, etc. as “evidence” to be analyzed prior to his trials. Such behavior could be either simulated or a true paranoid reaction.
3. Present examination reveals a normal mental status with the exception of the amnesia. Attitude and general behavior are normal, mood and affect, while slightly depressed, are intact and normal. Sensorium is intact and insight is good. Content reveals vague paranoid trends, but there is no evidence of any actual psychosis. His reactions to his suspicions are not fixed and delusioned trends are distinctly spotty and disconnected. His reactions are those of an individual who has given up a simulated behavior pattern rather than those of the psychotic. Oddly enough his memory for this phase of behavior is excellent.
4. Special examinations with Rorschach cards indicate some neurotic patterns. They point to a highly schizoid personality with hysterical and obsessive components. Such findings are confirmed in the patient’s present reactions. He complains bitterly of “stomach cramps” which are obviously neurotic manifestations. He is over-dramatic in his actions presenting typical hysterical gestures, complaints and symptoms. His amnesia is at present limited to personal events concerning his history after joining the party. The amnesia however shifts in a highly suspicious fashion. Such amnesias may be hysterical in nature but in such cases do not change in depth from day to day and facts recently learned are not lost as with Hess.
5. In HESS’ case there is also the factor of his long amnesia in England. It is quite possible that he has suggested an amnesia to himself for so long that he partially believes in it. In a person of hysterical make-up such auto suggestion could readily produce an amnesic state. Also the “gain” or protection found in amnesia, fancied or real, would be a bar to its easy clearance. Finally a large conscious element may well be present.
6. In this case I believe all those factors are present. Treatment will have to be formulated along lines attacking the suggestive factors and overcoming conscious restraints. Hypnosis would be a value but probably chemical hypnosis will be required. Such narco-hypnosis and analysis require the use of intravenous drugs of the barbitol series, either sodium amytol or sodium pentothal.
[Page 111]
Such treatment is in general innocuous if proper precautions are taken. It must be borne in mind, however, that occasional accidents happen in any intravenous technique. With the drugs mentioned above rare fatalities have been reported although in more than 1000 such cases personally treated, I have never seen one.
7. Essentially the present situation is as follows:
a. Internee HESS is sane and responsible.
b. Internee HESS is a profound neurotic of the hysterical type.
c. His amnesia is of mixed etuology, stemming from auto suggestions and conscious malingering in a hysterical personality.
d. Treatment will be required if it is felt desirable to remove this amnesia.
e. Such treatment, though it cannot eliminate the conscious element is of great value in estimating its importance. With such techniques accurate estimates of malingering can be made. If this a true amnesia, total recovery can be predicted.
f. Such treatment is essentially harmless except in extremely rare instances. In ordinary practice the value of the treatment far outweighs any of its hazards.
8. Clarification as to the desired degree of treatment in this case is requested.
DOUGLAS McG. KELLEY
Major, MC
—–
1st Ind
HEADQUARTERS, INTERNAL SECURITY DETACHMENT,
OFFICE US CHIEF OF COUNSEL — APO 403, US ARMY —
17 October 1945
HESS believes or has pretended that the British attempted to poison him. Treatment with drugs might call forth the same suspicion or allegation against us by him. Undue alarm might be injurious to the patient.
/s/ B. C. Andrus
/t/ B. C. ANDRUS
Colonel Cav
Commandant
[Page 112]
2nd Ind
OFFICE US CHIEF OF COUNSEL, EXECUTIVE OFFICE, APO, 403, US ARMY
Any treatment of this case involving the use of drugs which might cause injury to the subject is disapproved.
ROBT. J. GILL
Colonel, CMP
Executive
D. STATEMENT BY HESS TO THE TRIBUNAL
CONCERNING HIS MEMORY
30 November 1945
Afternoon Session
Mr. President: At the beginning of this afternoon’s proceedings, I handed my defense counsel a note stating that I am of the opinion that these proceedings could be shortened if I could speak briefly. What I have to say is as follows: In order to prevent any possibility of my being declared incapable of pleading although I am willing to take part in the rest of the proceedings with the rest of them, I would like to make the following declaration to the Tribunal although I originally intended not to make this declaration until a later time. My memory is again in order. The reason why I simulated loss of memory was tactical. In fact, it is only that my power for concentration is slightly reduced but in conflict to that my capacity to follow the trial, my capacity to defend myself, to put questions to witnesses or even to answer question in these, my capacities are not influenced. I emphasize the fact that I bear full responsibility for everything that I have done, signed or have signed as co-signatory. My fundamental attitude that the Tribunal is not legally competent, is not affected by the statement I have just made. Hitherto, in my conversations with my official defense counsel, I have maintained my loss of memory. He was, therefore, acting in good faith when he asserted I had lost my memory.”
E. RULING OF THE TRIBUNAL
The ruling of the International Military Tribunal was announced orally by Lord Justice Lawrence, presiding, on 1 December 1945:
[Page 113]
“The Tribunal has given careful consideration to the motion of Counsel for the Defendant Hess, and it has had the advantage of hearing full argument upon it both from the Defense and from the Prosecution. The Tribunal ha also considered the very full medical reports, which have been made on the condition of the Defendant Hess, and has come to the conclusion that no grounds whatever exist for a further examination to be ordered.
“After hearing the statement of the Defendant Hess in court yesterday; and in view of all the evidence, the TribunaL is of the opinion that the Defendant Hess is capable of standing his trial at the present time, and the motion of Counsel for the Defense is, therefore, denied, and the trial will proceed.”
