30 Nov. 45

in absentia if he shouldn't be tried in his presence. If he is unable to be tried, why, he simply shouldn't be tried at all. That is all I can see to it.

I would like to call your attention to the one thing in all this, the one statement on which any case can be made here for postponement. That is the statement with which we all agree: That Hess' condition will interfere with his response to questions relating to his past and will interfere with his undertaking his defense. Now, I think it will interfere with his defense if he persists in it, and I am sure that counsel has a very difficult task. But Hess has refused the treatment, and I have filed with the court the report of Major Kelly, the American psychiatrist, in whose care he was placed immediately after he was brought here.

He has refused every simple treatment that has been suggested. He has refused to submit to the ordinary things that we submit to every day--blood tests, examinations--and says he will submit to nothing until after the trial. The medication which was suggested to bring him out of this hysterical situation--every psychiatrist agrees that this is simply an hysterical situation if it is genuine at all--was the use of intravenous drugs of the barbital series, either sodium amytal or sodium phenotal, the ordinary sort of sedative that you perhaps take on a sleepless night. We did not dare administer that, to be perfectly candid, against his objection, because we felt if that, however harmless--and in over a thousand cases observed by Major Kelly there have been no ill effects although some cases are reported where there have--we felt that if should he be struck by lightning a month afterward it would still be charged that something that we had done had caused his death; and we did not desire to impose any such treatment upon him.

But I respectfully suggest that a man cannot stand at the bar of the Court and assert that his amnesia is a defense to his being tried, and at the same time refuse the simple medical expedients which all agree might be useful.

He is in the volunteer class with his amnesia. When he was in England, as the reports show, he is reported to have made the statement that his earlier amnesia was simulated. He came out of this state during a period in England, and went back into it. It is now highly selective. That is to say, you can't be sure what Hess will remember and what he will not remember. His amnesia is not of the type which is a complete blotting out of the personality, of the type that would be fatal to his defense.

So we feel that so long as Hess refuses the ordinary, simple expedients, even if his amnesia is genuine, that he is not in a position to continue to assert that he must not be brought to trial.