United States of America vs. Karl Brandt et al.
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II. ARRAIGNMENT

Extract from the official Transcript of Military Tribunal I in the matter of the United States of America vs. Karl Brandt et al., defendants, sitting at Nuernberg, Germany, on 21 November 1946, Judge Beals 'presiding

PRESIDING JUDGE BEALS: We will now proceed to arraign the defendants on the cause now pending before this Tribunal. As the names of the defendants are called each defendant will stand, and will remain standing until told to be seated. Mr. Secretary General of the Tribunal will call the roll of the defendants.

THE SECRETARY GENERAL : Karl Brandt, Siegfried Handloser, Paul Rostock, Oskar Schroeder, Karl Genzken, Karl Gebhardt, Kurt Blome, Rudolf Brandt, Joachim Mrugowsky, Helmut Poppendick, Wolfram Sievers, Gerhard Rose, Siegfried Ruff, Hans Wolfgang Romberg, Viktor Brack, Hermann Becker-Freyseng, Georg August Weltz, Konrad Schaefer, Waldemar Hoven, Wilhelm Beiglboeck, Adolf Pokorny, Herta Oberheuser, Fritz Fischer. (As their names are called, the defendants rise.) If the Honorable Tribunal please, all of the defendants are in the dock.

PRESIDING JUDGE BEALS : The defendants will be seated. The counsel for the prosecution will now proceed with the arraignment of the defendants.

PRESIDING JUDGE BEALS: I shall now call upon the defendants to plead guilty or not guilty to the charges against them. Each defendant, as his name is called, will stand and speak into the microphone. At this time there will be no arguments, speeches, or discussion of any kind. Each defendant will simply plead either guilty or not guilty to the offenses with which he is charged by the indictment.
Karl Brandt.

DR. PELCKMANN : Mr. Chairman, before the defendant pleads guilty or not guilty, may I say a word.? I am defense counsel for the defendant Schaefer, number 18.

PRESIDING JUDGE BEALS : For which defendant?

DR. PELCKMANN: Schaefer, number 18.

PRESIDING JUDGE BEALS: We are now receiving the plea of the defendant Karl Brandt. You do not represent him as counsel, do you?

DR. PELCKMANN: No.

PRESIDING JUDGE BEALS : Then I see no reason for counsel for another defendant making any remarks at this time.

Dr. PELCKMANN : May I speak before the defendant Schaefer speaks? A formal objection.

PRESIDING JUDGE BEALS : When the name of the defendant Schaefer is called, you may address the Court. Karl Brandt, are you represented by counsel in this proceeding?

DEFENDANT KARL BRANDT Yes.

PRESIDING JUDGE BEALS : How do you plead to the charges and specifications and each thereof set forth in the indictment against you, guilty or not guilty?

DEFENDANT HANDLOSER : Yes.

PRESIDING JUDGE BEALS: Be seated. Siegfried Handloser, are you represented by counsel in this cause!

DEFENDANT HANDLOSER : No, I have no counsel yet.

PRESIDING JUDGE BEALS : Do you desire that the Tribunal appoint counsel for you?

DEFENDANT HANDLOSER: I hope that today or tomorrow I may receive an affirmative answer from a defense counsel.

PRESIDING JUDGE BEALS : Are you at this time ready to plead to the indictment, guilty or not guilty?

DEFENDANT HANDLOSIER : Yes.

PRESIDING JUDGE BEALS: How do you plead to the charges and specifications and each thereof set forth in the indictment against you, guilty or not guilty?

DEFENDANT HANDLOSER : Not guilty.

PRESIDING JUDGE BEALS: Be seated.

[At this point the defendants Paul Rostock, Oskar Schroeder, Karl Genzken, Karl Gebhardt, Kurt Blome, Rudolf Brandt, Joachim Mrugowsky, Helmut Pop pendick, Wolfram Sievers, Gerhard Rose, Siegfried Ruff, Hans Wolfgang Romberg, Viktor Brack, Hermann Becker-Freyseng and Georg August Weltz were arraigned. All were represented by counsel. All pleaded not guilty to the indictment.]

DR. PELCKMANN : Your Honor, may I speak?

PRESIDING JUDGE BEALS: What is the purpose of the remarks you desire to make?

DR. PELCKMANN: I should like to object to the indictment. I should like to say that in my opinion, as far as Schaefer is concerned, the indictment does not conform to Ordinance No. 7. I can explain that.

PRESIDING JUDGE BEALS: How much time do you desire to present your argument ?

DR. PELCKMANN: Three minutes.

PRESIDING JUDGE BEALS: You may proceed. First, have you filed in the proceeding any written notice of the objection to the indictment and served it upon the prosecutor ?

DR. PELCKMANN: I have not had the indictment long enough. I have just had the written material for 2 days. What I have to say I could submit in writing later. Because of the brief time, I ask to be allowed to make a brief statement now.

PRESIDING JUDGE BEALS : You may make a brief statement and submit argument in support of your objection within 5 days.

DR. PELCKMANN: Very well. May I now say something?

PRESIDING JUDGE BEALS : You may proceed for 3 minutes.

DR. PELCKMANN : Ordinance No. 7, in Article IV (a), prescribes the following according to the English text : "The indictment shall state the charges plainly, concisely and with sufficient particulars to inform defendant of the offenses charged." Schaefer is charged only on one count, count two(G) . Experiments with sea water in Dachau are charged against 12 defendants. In two sentences the indictment goes on to say that the 12 persons who are then named are charged with special responsibility for these crimes and participation in them. I am of the opinion that this does not contain sufficient particulars. "Responsibility" and "participation" are legal concepts. There is no evidence of "sufficient particulars," which implies details. The indictment, in my opinion, must give facts to indicate how and why each one of these 12 defendants who, ostensibly, participated in these experiments, is responsible and participated. My client cannot tell what the nature of his participation is supposed to have been. The indictment says, in count one, number 2, that all defendants were principals in, accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises involving the commission of war crimes and crimes against humanity. Those also are only, legal concepts.

PRESIDING JUDGE BEALS : You may file a written brief in support of your position.

DR. PELCKMANN: I should like to add, without the knowledge of the indictment, my client is not ready to answer the question as to whether he is guilty or not guilty.

PRESIDING JUDGE BEALS: You will serve a copy of your brief upon the prosecution and file it with the Secretary General.

DR. PELCKMANN: Very well, your Honor.

PRESIDING JUDGE BEALS: In connection with this matter, General Taylor, do you desire to make any remarks or suggestions?

BRIGADIER GENERAL TAYLOR: Your Honor, needless to say, we have no objection to the making of this motion or the filing of this brief. It is needless to say, also, that we think the indictment quite adequately specifies the date, place, and type of experiment charged. The defendant's connection with it is better known to the defendant than to anyone else. There is no reason why he should not enter his plea at this time.

JUDGE SEBRING: That would not go to the jurisdictional aspect of the indictment, but it would go to the question of particulars. The consideration is whether or not upon the showing of the motion, more particulars as to the charges specified, should be included. Do you understand my point?

BRIGADIER GENERAL TAYLOR: Yes, your Honor. That is what I understood. The prosecution will consider the motion, and if need be, submit particulars, although we think the indictment is adequate enough. We think there is no challenge of the jurisdiction. The defendant should be required to promptly plead.

JUDGE CRAWFORD : How do you plead to the charges against you ?

DEFENDANT SCHAEFER: Not guilty.

PRESIDING JUDGE BEALS : Be seated. [At this point the balance of the defendants: Waldemar Hoven, Wilhelm Beiglboeck, Adolf Pokorny, Herta Oberheuser and Fritz Fischer were arraigned. All were represented by counsel. All pleaded not guilty to the indictment.]

DR. SERVATIUS: Servatius for the defendant Karl Brandt. Your Honor, may I make an application regarding the submission of documents by the prosecution?

PRESIDING JUDGE BEALS: You may state your application.

DR. SERVATIUS: Your Honor, I ask the Tribunal to instruct the prosecution that the documents be submitted to the defense in time, the documents on which the charge is based. This would make the proceedings easier and give the defense an opportunity to examine the documents in time, and to obtain counterproof. In the first trial before the International Military Tribunal, we were given a list of documents with the indictment; although these documents were not enclosed, we could look at them and we could work on them. Up to now we have nothing on which we can build our defense. In other words, on the 9th of December, we will have proceeded no further than today, and we will not be able to advise our clients.

PRESIDING JUDGE BEALS: You may be seated and we will hear from the prosecution, Brigadier General Telford Taylor.

BRIGADIER GENERAL TAYLOR: Your Honor, the counsel for the defense who has just spoken is thoroughly familiar with the procedures used in the prior case. The prosecution in this case plans to follow the same procedures and give the defense counsel the same opportunities and, if possible, more. The Defense Information Center, which is the place where the documents have in the past been made available, will be supplied in advance with copies of the documents on which our evidence is based. I would suggest, your Honor, that after all counsel for the defense are here that it would be most useful if there be a meeting between representatives of the prosecution and the defense so that procedures can be developed. But at the moment only half of the counsel for the defense are here and it would be economical if these matters could be arranged after they are all present.

DR. SERVATIUS : Your Honor, may I ask one question? May I add one thing, that the documents be given to us in German. In the previous trial, there was difficulty at the beginning because we got them in English.

PRESIDING JUDGE BEALS: I believe if counsel for the defense will refer to the rules promulgated by this Tribunal on 2 November 1946, you will see that a requirement is made that all such matters be submitted in a language that is understood by each of the defendants.

DR. SERVATIUS: Yes, but for technical reasons that was not always done. There were great difficulties. The conferences with the prosecution will make it possible to eliminate the difficulties. If it is not possible, I will address the Court again.

PRESIDING JUDGE BEALS: Do you have anything further, General Taylor ?

BRIGADIER GENERAL TAYLOR: Your Honor, the prosecution merely wishes to note that it has filed with the Secretary General a motion to amend the indictment in paragraph 8 of count two and paragraph 13 of count three, by changing 1943 to 1944. The motion has been filed with the Secretary General and copies of the motion are in German and are in the hands of defense counsel.

PRESIDING JUDGE BEALS : How many of the defendants are concerned with the amendment to the indictment? My point is that if the-

MR. McHANEY : If the Tribunal please, the amendment occurs first in paragraph 8 on page 14 of the indictment and it affects only two of the defendants; namely, Blome and Rudolf Brandt. The amendment is also made in paragraph 13 because the same facts are there charged as a crime against humanity. In paragraph 13 only the same two defendants are involved; that is, defendants Blome and Rudolf Brandt.

PRESIDING JUDGE BEALS: What are the particulars of the amendment ?

MR. McHANEY : The only change made by the amendment is to say the date January 1944 for the date January 1943 ; in other words, it extends the period covered by the crime for 1 year. The date 1943 was inserted by mistake in the indictment as filed with the Tribunal.

PRESIDING JUDGE BEALS: Are these two defendants represented by counsel here present this morning?

MR .McHANEY: I think that Rudolf Brandt answered "Yes".

DEFENDANT BLOME: Yes, your Honor.

PRESIDING JUDGE BEALS : Has this motion been served upon counsel for these two defendants?

MR. McHANEY : Your Honor, my understanding is that the motion for amendment was filed with the Secretary General. If we understand the rules correctly, the Secretary General then serves it upon the defendants.

PRESIDING JUDGE BEALS : I was just asking for information whether they had received copies of the motion.

MR. McHANEY: That I don't know. Yes, the counsel for these defendants say "Yes".

PRESIDING JUDGE BEALS: Does counsel for defendant Blome raise any objection to the amendment of the indictment ?

DR. SAUTER : No.

DR. KAUFFMANN: Kauffmann for Rudolf Brandt. I have no objection to the change.

PRESIDING JUDGE BEALS : You represent Rudolf Brandt ?

DR. KAUFFMANN: Yes.

PRESIDING JUDGE BEALS: Well, the other defendant affected is defendant Blome, I understand. Is he represented here?

DR. SAUTER: Dr. Sauter for the defendant Blome. We don't have any objection.

PRESIDING JUDGE BEALS: The indictment will be amended in accordance with the motion. Is it agreeable to counsel for these two defendants that the arraignment as to them upon this count which has just been amended be considered as pleas to the count as amended now their pleas of "Not Guilty" ?

DR. SAUTER: Yes.

DR. KAUFFMANN : Yes.

PRESIDING JUDGE BEALS: These matters will appear in the records of the Tribunal. The pleas of the defendants will all be entered in the minutes of the Tribunal.

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