Chapter XXXII: Conclusion (2)

The counsel for the defense again and again feels tempted to regret that these trials are too drawn out and through their long duration have a negative effect on the broad masses of the German people. If it is to be the goal of these trials to punish the main war criminals, these procedures should be shortened. The people are not interested any more in the course of these trials, apart from the trial against Goering and others during its first stages; one reason for this is, of course, the general plight; because the hunger of the people, the great mortality, the problem of the prisoners of war who are not returned to their families, the conditions in the East push everything else aside. Furthermore, the long duration of the trials causes even the most lively interest to slacken. But it also seems wrong to pronounce death sentences after such a long duration of proceedings. In the case of the trial of the International Military Tribunal, the people were still able to connect the long duration of the proceedings with the sentences pronounced, because each proceeding was an individual event. The following trials, however, among them, therefore, the doctors’ trial, are much too much drawn out with regard to German legal opinion. If such a drawn-out procedure closes with a death sentence, that death punishment seems hardly justified anymore. German trial procedure does not know such long drawn-out proceedings, the final result of which is a death sentence. The special peculiarities of the Anglo-American trial procedures are the cause for such trials that last for months and months. It has also to be remembered that the defendants in each case have been in custody for almost or more than two years when the trial finally began. Procedures ending with death sentences will have to be carried through much faster. It is in contradiction to one’s reactions that death sentences are pronounced against defendants with whom not only counsel for the defense has worked together for many months, but who also for many months appeared daily in court and were respected by the court, since they are rightly considered innocent until their guilt is finally established.

Neither should one forget that the defendants themselves, after having been held in custody for inquiry for such a long time and having gone through such long drawn-out procedures, have already atoned more for their crimes than if there had been a quick procedure started immediately after the collapse of Germany.

If I may impose on the instance for clemency I beg to read some parts of my final plea; then, I don’t have to repeat myself here. (_Cf. statements on page 14 V, 1_; _furthermore pages 18-20, 27, 43 C_).

[Signature] DR. KAUFFMANN.

_FOR THE DEFENDANT POPPENDICK_
Nuernberg, 1 September 1947

Georg Boehm, Attorney Defense Counsel Military Tribunal I Nuernberg, 115 Zerzabelshofstrasse

The Military Commander of the U.S. Occupation Zone Germany

Petition
of Attorney Georg Boehm, Defense Counsel at
Military Tribunal I, Nuernberg

for the defendant
Helmut Poppendick, at present in the courthouse prison at
Nuernberg, _concerning alteration of the sentence passed_
_by Military Tribunal I, Nuernberg_

The defendant Helmut Poppendick was acquitted of the charges of having committed war crimes and crimes against humanity (counts two and three) in the sentence of the Military Tribunal I at Nuernberg in Case I, United States of America against Karl Brandt _et al._, on 19 August 1947, and found guilty only, as an SS member, of membership in an organization declared criminal by the International Military Tribunal (count four). On 20 August 1947, the defendant Helmut Poppendick was sentenced to 10 years’ imprisonment merely on account of membership in the SS.

I. _The sentence exceeds the maximum penalty_

According to the recommendations of the International Military Tribunal (_The Trial of the Major War Criminals before the International Military Tribunal, Vol. I, p. 288_), inserted into the sentence of the Medical Case, a maximum penalty is provided for the punishment of members of organizations declared criminal. The IMT recommendation provides in detail that “in no case is the penalty, imposed on the basis of Law No. 10 upon a member of an organization or group declared criminal by the Tribunal, to be more severe than the one provided in the Denazification Law”. The Denazification Law, dated 5 March 1946, valid for the U.S. Occupation Zone of Germany, referred to as a standard for comparison, provides the maximum penalty of 10 years in a labor camp. According to present penal regulations, 10 years’ imprisonment is, however, a more severe penalty than being sent to a labor camp for the same period. _10 years’ imprisonment_ _exceeds, therefore, the penalty provided in the recommendation of the IMT._ The sentence against Poppendick does not give any special reason for exceeding the maximum penalty.

II. _More lenient evaluation of the group of persons within the
SS who only knew about crimes without, however,
being involved in them_

The sentence of the International Military Tribunal declares punishable in the sense of the statute “the group composed of those persons who were officially admitted as members * * * in the SS, became or remained members of the organization knowing that use was made of them for committing acts declared punishable by Article 6 of the Statute, _or_ who were involved in committing such crimes as members of the organization.” According to a reasonable interpretation of this provision, if mere membership is punished, one has to differentiate between those persons involved in committing such crimes and those persons only knowing about the commission of such crimes within the SS. According to a sound sense of justice, the provided maximum penalty for membership in the SS cannot possibly be valid for both groups of persons. On the contrary, the group having only knowledge has to be punished more lightly than the group involved in crimes. A penalty _inferior_ to the provided maximum penalty has, therefore, to be imposed on the first mentioned persons among the SS members called to account. The Tribunal clearly stated that the defendant Helmut Poppendick was not involved in the crimes of the SS and, in this way, made it clear that not even on account of his rank or official position was he able to prevent crimes. The Tribunal only tried to impute knowledge on the part of the defendant Poppendick of definite experiments specified in the indictment. _For this reason the maximum penalty should not be imposed in the case of the defendant Poppendick._

III. _Knowledge of the defendant Poppendick_

The Tribunal imputed to the defendant Poppendick, who was Oberfuehrer of the Waffen SS and Obersturmbannfuehrer of the General SS: (1) knowledge of freezing experiments; (2) sulfanilamide experiments; (3) sterilization experiments; (4) incendiary bomb experiments; (5) phlegmon experiments, without, however, being criminally involved in them.

(1) Knowledge of freezing experiments is imputed to the defendant Poppendick because he was subsequently invited to participate in a conference between Grawitz and Dr. Rascher in January 1943. As Rascher was at that time an officer in the Luftwaffe and all his collaborators were not members of the SS, this series of experiments (at least in January 1943) cannot be interpreted as a series of experiments within the SS and consequently as crimes of the SS. There is no proof of knowledge of such experiments after January 1943.

(2) The defendant Poppendick knew as much about Professor Gebhardt’s sulfanilamide experiments as Professor Rostock who was acquitted by the same Tribunal, i.e., that prisoners sentenced to death were used for these experiments.

(3) Knowledge of sterilization experiments is imputed to the defendant Poppendick by means of a simple assumption, although the Tribunal pointed out in several passages of the judgment that a mere assumption of guilt, in our case of knowledge, is insufficient. Poppendick only worked in the Race and Settlement Office as a doctor dealing with hereditary questions for members of the SS and their families; as medical superintendent he had to supervise this activity and the social welfare doctors. These matters were purely internal SS affairs. If the Race and Settlement Office occasionally dealt, amongst other measures, with one of racial policy through its field offices, the doctors were not involved in any case, and there is not the least indication that Poppendick knew or ought to have known about such measures. Even the judgment itself reveals to what extent the real sterilization experiments were kept secret.

(4) On page 112 (German), the Tribunal points out, that in conferences concerning sterilization experiments (Poppendick never took part in such conferences) each participant had to undertake to maintain absolute secrecy. Neither the defendant Poppendick’s statement nor the evidence submitted reveal that Poppendick had any knowledge of sterilization experiments, let alone of extermination measures.

(5) In the case of the phlegmon experiments it has not been proved that Poppendick had any knowledge of them. Here, too, the assertion that he had such knowledge is based on a mere assumption.

It has, however, nowhere been proved that defendant Helmut Poppendick knew about the experiments in such a way as to necessitate his realizing that non-Germans were being used for such experiments. In its verdict the Tribunal has consistently followed the principle that it must be proved that crimes were committed on non-German nationals (_see pp. 50, 51, 70, 91, 103, 131, 160, German text_). In contrast to this the Tribunal left open the question as to how far the state is entitled to carry out experiments on its own citizens; it stated when dealing with the question of guilt: “* * * whatever right a state may have concerning its own citizens” (_see pp. 114, 195, German_). The Tribunal, therefore, in all essentials confined itself to the question of to what extent crimes were committed on non-Germans. _No conclusive evidence has been brought against defendant Helmut Poppendick in each single case to prove his knowledge of experiments carried out on non-Germans._ In reality, nothing is more suitable to explain under whatever point of view we have to look at defendant Poppendick’s knowledge of experiments, than his words at the end of the trial: “As to medical experiments on prisoners, human experiments were nothing striking and nothing new to me. I knew that experiments were being conducted in hospitals. I knew that the triumphs of modern medicine had not been achieved without sacrifices. I admit I cannot remember that in experiments in hospitals, the voluntary participation of the experimental subjects had to be such an indispensable and obvious prerequisite, as it appears to be according to the argumentation heard in this trial. Furthermore, I know that some scientific questions can only be solved by serial experiments in an unchanging environment, and that, therefore, in all countries, experiments are often conducted, particularly on soldiers in camps. Under these circumstances I was not at all surprised that during the war serial examinations and experiments were also carried out by scientists in concentration camps. I had not the slightest reason to assume that these scientists in the camps went beyond what was usual everywhere else in the world of science. As far as I was concerned, what I knew about medical experiments in the SS had just as little to do with criminal acts as the experiments about which I knew from my internship before 1933.”

IV. _Consequences for future jurisdiction arising from the
penalties imposed by the sentence on Poppendick_

The sentence imposed on Helmut Poppendick for his membership in the SS is altogether the first sentence in the American Zone against an SS member of this kind. Therefore, it has to be regarded as a precedent for all military tribunals and possibly, later on, for German courts, whose task it will be to punish members of criminal organizations. To sum up its consequences, the sentence creates a precedent, that—

1. Every SS leader with a rank higher than Poppendick’s, who
knew of SS crimes committed on Germans and non-Germans, can, on
principle, only be sentenced to the maximum penalty.

2. Every member of the SS involved in crimes can be sentenced up
to this maximum penalty again only on account of his SS
membership. What penalty can, for example, be inflicted on an SS
Obergruppenfuehrer who saw how the gas chambers were run at
Auschwitz, without, however, being otherwise involved in the
extermination of the Jews; a man thus having, so to speak, the
highest degree of knowledge derived from SS membership? _It is
obvious that such a sentence as the one passed on Poppendick
deprives future tribunals of all latitude of discretion,
transforms the maximum penalty into the average penalty, and in
this way renders the recommendation of the IMT absurd._

V. _Prevention of further possibilities of appeal_

The defendant Poppendick, whose domicile is in the British Zone, would consequently under normal circumstances have to be tried by a tribunal (Spruchgericht) set up in the meantime in consequence of the British Ordinance No. 69. Because he has been sentenced by a Nuernberg Military Tribunal as a member of an organization declared criminal _he loses the two further appeals_ provided for by Ordinance No. 69 and its implementation regulations for the British Zone. _Therefore this is the only legal way still open to him to state his case._

VI. _Personal Conditions_

I make the following application for reduction of penalty with even greater emphasis, because the defendant has already been amply punished for his SS membership. His family has lost all its property and has not a pfennig left. His wife must support her four little children aged 3 to 7 by the labor of her hands under the most primitive conditions, without having a chance during her husband’s entire term of imprisonment to obtain the slightest financial assistance for herself and her children.

The defendant used his considerable abilities as a physician to help many people, both Germans and foreigners, during the long years of his medical practice, without ever even mentioning this during the trial, because it is a physician’s duty to help suffering humanity. The defendant, who is not involved in the crimes dealt with by this Tribunal, suffers sufficiently under his outward discrimination as an SS member.

In view of all these circumstances and with the request for careful examination of the case, I make in conclusion the

_Application_

1. _For the sentence of imprisonment for ten years inflicted on defendant Helmut Poppendick to be reduced to a tolerable term of imprisonment, perhaps to be commuted into a shorter term of confinement in a labor camp, and at the same time_

2. _For the 2¼ years’ detention already served by the defendant to be included in the then newly-determined term of imprisonment._

[Signature] G. BOEHM,
_Attorney-at-Law_.

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[59] According to German terminology a “Referent” (plural: “Referenten”) is an official with expert knowledge of a specialized subject in a government or private organization.

XIV. AFFIRMATION OF SENTENCES BY THE
MILITARY GOVERNOR OF THE UNITED
STATES ZONE OF OCCUPATION

OFFICE OF MILITARY GOVERNMENT
FOR GERMANY (U. S.)

Office of the Military Governor
APO 742

Berlin, Germany
22 November 1947

AG 013. 3 (LD)

SUBJECT: Petitions for Review and for Habeas Corpus in the case of the
_United States of America_ v. _Karl Brandt et al._, Case 1,
Military Tribunal I, Nuernberg, Germany (Medical Case)

TO: Secretary General
Military Tribunals
APO 696-A, U.S. Army

1. Inclosed herewith you will find original orders denying petitions for clemency submitted by the following persons convicted in Case Number 1 before Military Tribunal I:

Karl Brandt Siegfried Handloser
Oskar Schroeder Karl Genzken
Karl Gebhardt Rudolf Brandt
Joachim Mrugowsky Helmut Poppendick
Wolfram Sievers Gerhard Rose
Viktor Brack Hermann Becker-Freyseng
Waldemar Hoven Wilhelm Beiglboeck
Herta Oberheuser Fritz Fischer

2. Please formally advise the petitioners through their respective attorneys of the action taken by the Military Governor upon these petitions.

FOR THE MILITARY GOVERNOR:
[Signed] G. H. Garde
G. H. GARDE
Lieutenant Colonel, AGD
Adjutant General

Incls: a/s

Telephone BERLIN 42361

HEADQUARTERS, EUROPEAN COMMAND

Office of the Commander-in-Chief

APO 742

Berlin, Germany

In the Case of Military Tribunal I The United States of America Case No. 1 _vs._ Karl Brandt, et alii

_Order with Respect to Sentence of Karl Brandt_

In the case of the United States of America against Karl Brandt et alii, tried by United States Military Tribunal I, Case No. 1, Nuernberg, Germany, the defendant, Karl Brandt, on 20 August 1947, was sentenced by the Tribunal to death by hanging. A petition to modify the sentence, filed on behalf of the defendant by Dr. R. Servatius, his defense counsel, has been referred to me pursuant to the provision of Military Government Ordinance No. 7. I have duly considered the petition and the record of the trial and in accordance with Article XVII of said Ordinance it is hereby ordered that:

1. The sentence imposed by Military Tribunal I upon Karl Brandt
be, and hereby is, in all respects, confirmed.

2. Pending action on petitions filed by the defendant with
authorities other than the Office of Military Government for
Germany, (U.S.), the execution of the death sentence be stayed
until further order by me.

3. The defendant be confined until further order in War Crimes
Prison No. 1, Landsberg, Bavaria, Germany.

[Signed] Lucius D. Clay
LUCIUS D. CLAY
General, U.S. Army
Commander-in-Chief, European Command
and Military Governor

HEADQUARTERS, EUROPEAN COMMAND

Office of the Commander-in-Chief

APO 742

In the Case of The United States of America _vs._ Karl Brandt, et alii

Military Tribunal I
Case No. 1

_Order with respect to sentence of Siegfried Handloser_[60]

In the case of the United States of America against Karl Brandt, et alii, tried by United States Military Tribunal I, Case No. 1, Nuernberg, Germany, the defendant Siegfried Handloser, on 20 August 1947, was sentenced by the Tribunal to life imprisonment. A petition to modify the sentence, filed on behalf of the defendant by Dr. Otto Nelte, his defense counsel, has been referred to me pursuant to the provisions of Military Government Ordinance No. 7. I have duly considered the petition and the record of the trial and in accordance with Article XVII of said Ordinance, it is hereby ordered that:

_a._ the sentence imposed by Military Tribunal I, on Siegfried
Handloser be, and hereby is, in all respects confirmed;

_b._ the defendant be confined in War Crimes Prison No. 1,
Landsberg, Bavaria, Germany.

[Signed] Lucius D. Clay
LUCIUS D. CLAY
General, U.S.A.
Commander-in-Chief, European Command
and Military Governor

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[60] The sentences imposed upon the remaining 14 defendants were confirmed in all respects by the Military Commander of the United States Zone of Occupation by identical orders.

XV. ORDER OF THE UNITED STATES SUPREME
COURT DENYING WRIT OF HABEAS CORPUS

Monday, 16 February 1948

No. 286, Misc. Karl Brandt, petitioner, _v._ The United States
of America;

No. 287, Misc. Viktor Brack, petitioner, _v._ The United States
of America;

No. 288, Misc. Rudolf Brandt, petitioner, _v._ The United States
of America;

No. 299, Misc. Wilhelm Bieglboeck, petitioner, _v._ The United States of America. The motions for leave to file petitions for writs of habeas corpus and prohibition are denied. Mr. Justice Black, Mr. Justice Murphy, and Mr. Justice Rutledge are of the opinion that the petitions should be set for hearing on the question of the jurisdiction of this Court. Mr. Justice Jackson took no part in the consideration or decision of these applications.[61]

[The execution of death sentences imposed on Karl Brandt, Rudolf Brandt, Karl Gebhardt, Joachim Mrugowsky, Viktor Brack, Wolfram Sievers, and Waldemar Hoven were ordered on 14 May 1948 by the Military Governor. Executions were carried out at Landsberg prison on 2 June 1948.]

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[61] The motions for leave to file petitions for writs of habeas corpus and prohibition in the case of the other defendants were also denied.