That the defendant Graf had done everything in his power under the existing circumstances, to evade the order for liability to serve in the SD, has been clearly shown by the evidence.
Finally, there is no proof that the defendant Graf was ever criminally active in the SD, and neither that he did in fact possess any knowledge of the SD being used as an instrument for the achievement of criminal aims.
2.) Membership in the SS.
The defendant Graf did, in 1936, resign from the SS, of Which he became a member only in 1933. After having been ordered to join the SD on the basis of his liability for Emergency service he made application, in June 1940, for a renewal of membership in the SS having been urged to do so by his superior officers. Graf then became member of the Special Formation SD of the SS. To the general SS Graf had had no connections since 1936. Graf's re-entry into the Special SS-Formation SD was an inevitable consequence of his conscription for service with the SD. That is, he did not join it of his own free will. In any case, it has been established that Graf did no duty with the SS after 1 September 1939 and did not come at all into contact with the SS as such. On the other hand, his activity with the SD was entirely independent from his membership in the SS. Therefore it cannot be said that the SS had any authority of command over defendant Graf's actions. The Military Tribunal II acquitted in Case 4 versus Oswald Pohl and others, the defendant Volk of the charge of having been a member of the SS because it had not been established clearly enough if the SS had had exclusive authority of command over Volk's actions.
In the case of the defendant Graf it has been proved moreover that he is not guilty of crimes against humanity and war crimes. There is no basis to the supposition that he knew of the above-mentioned crimes committed by the SS. The correct personal behavior of the defendant speaks against this supposition.
The only possible conclusion from the evidence is to state that the defendant Graf is neither guilty on Count III.
Your Honor, Honorable Judges, I ask for the acquittal of the defendant Matthias Graf and for his release from custody.
THEPRESIDENT: when the Tribunal reconvenes at 1:45 we will hear the two witnesses which are still outstanding and then -
DR. BELZER:I can't understand.
THE PRESIDENT:It doesn't affect you anyway, Dr. Belzer; you are through. And then we understand that Dr. Koessl will be ready to deliver his final plea in the Schubert case.
The Tribunal will now be in recess until 1:45.
(A recess was taken until 1345 hours.)
11 Feb 1948_A_MSD_14&15_1_Gross (Hildesheimer) AFTERNOON SESSION (The hearing reconvened at 1345 hours, 11 February 1948.)
THE MARSHAL:The Tribunal is again in session.
DR. HOCHWALD:If the Tribunal please, before the witness is called I respectfully move that the defendant Haensch may be placed in another seat in the defendants' box.
THE PRESIDENT:The defendant Ruehl will please take the third seat from the end - just exchange seats with Haensch.
The witness will be brought in.
HERTAJAUER, a witness, took the stand and testified as follows:
JUDGE SPREIGHT:Witness, raise your right hand and repeat after me: I swear by God, the Almighty and Omniscient. that I will speak the pure truth, and will withhold and add nothing."
(The witness repeated the oath.)
JUDGE SPREIGHT:You may be seated.
DR.KRAUSE for the defendant Haensch:
Your Honor, the witness Jauer has been named by the Defense. I would like, therefore, to stare with the direct examination of the witness.
THE PRESIDENT:We understood that you had submitted an affidavit.
DR. KRAUSE:Your Honor, the affidavit I shall not introudce after the witness has appeared here on the witness stand. I refer only to her statement she is making on the witness stand.
THE PRESIDENT:Will both counsel please come to the bench.
(Both counsel went to the bench and conferred with the Tribunal.)
DIRECT EXAMINATION BY DR. KRAUSE:
QWitness, please give the Tribunal your full name.
AMy name is Herta Jauer, Berlin-Zehlendorf. Teltower Damm 7.
QWhen and where were you born?
AOn 16 July 1914 in Hennersdorf.
11 Feb 1948_A_MSD_14&15_2_Gross (Hildesheimer)
QWhat is your profession?
AI an a dental assistant.
QDo you have any special training for this profession?
ANo.
QWhat is your place of work at the moment?
AI am a dental assistant at the moment of Dr. Maennel.
QWhen did you first start working with Dr. Maennel?
ASince 1 April 1938.
QAnd what is the work at the moment, in detail?
AWhatever happens in a dental practice, practically everything.
QDo you receive the patients?
AYes.
QDo you comply with telephone calls?
AYes.
QAre you a practical assistant to Dr. Maennel as far as the treatment is concerned?
AYes.
QAnd what at the correspondence and office work?
AThat I deal with as well.
QWhat does the correspondence comprise?
AEntries in the card index and practically everything that has anything to do with correspondence or office work.
QDo you also make out bills for patients after treatment has been concluded?
AYes.
QDo you also deal with any letters, mail, and correspondence?
AYes.
QWitness, what is being included in the card index in the practice?
AThe treatment, when the patient is present, details about the treatment about what has been done.
QDo you also write down the date?
11 Feb 1948_A_MSD_14&15_3_Gross (Hildesheimer)
AYes.
QAnd when do you make these entries, during the practice or afterwards?
AImmediately when the patient has been treated or while he still is being tr ated.
QIn what way do you make out the bills?
AAfter the treatment is concluded - after a few weeks the invoices are made according to the time.
QThat happens then after a certain period of time, does it, or is it also taking place during the time the patient is there, or what time or you do that?
THE PRESIDENT:Just a moment, please. Now the witness did answer your question. Than you put a very leading question to her which is not permitted. BY DR. KRAUSE:
QWhat happens to the card index card when the treatment is over and the bill is paid?
AThen they go into a card index when it is paid which is put into another closet.
QHow long do you keep the index cards?
AWell, they are never thrown away. They are kept until they are full - they are kept as long as that.
QHave you still in your possession index cards from years back?
AYes.
QHow far back are the oldest index cards in your collection?
ABefore the War. The index cards have been put in a certain place from as far back as 1933.
QMay I then ask the Tribunal now to hand me over the index card which has been introduced here as evidence so I can discuss it with the witness. (The card was handed to the witness.) Witness, I have here an index card in front of me which I am now going to 11 Feb 1948_A_MSD_14&15_4_Gross (Hildesheimer) show to you.
It boars the name of Dr. Haensch, Zehlendorf. Hartmannsweilerweg 16. Will you please look at this index card. Do you know this card?
AYes.
QWho made this particular entry on this index card?
AI did.
QAre all the entries your own?
AYes.
QYou will see amongst these entries also one of 7 February 1942.
AYes.
QDid you also make that entry?
AYes.
QAre you sure that it is your handwriting?
AYes.
QIt strikes me. witness, that the handwriting on this index card isnot always the same. Can you give us an explanation concerning that?
AWell; it was written in a hurry at the time, sometimes one writes standing up or takes another fountain pen or any other pen, and the handwriting is not always the same.
QHow many patients did you deal with in one day?
AAbout 80 to 100 in those years. We had a tremendous lot to do in thos days.
QUnder the entry of 14 January 1942 you see a line. What does that line mean?
AYou mean in the invoice or when the amount is mentioned?
QYes. Why did you make this line?
AWhen adding, a line is made,
QYou say, that is addition then?
AYes.
QWhat has been added then?
11 Feb 1948_A_MSD_14&15_5_Gross (Hildesheimer)
ATreatment, each individual treatment.
QDoes that have anything to do with the making out of the invoice?
ANo.
QYou say it is addition of the treatments. What actually did you add? You cannot very well..... the individual treatments, 1,2,3....
DR. HOCHWALD:If the Tribunal please, this is a leading question. The addition from the part of the defense counsel is unnecessary. He asked what did you add together - which is a complete question. He goes on to explain what she could not have done. is leading.
THE PRESIDENT:Please try to refrain from leading questions, counsel.
BY DR. KRAUSE:
QI understood you to the effect that the treatment itself was concluded on the 14th January 142. What does the further entry mean on the 7th of February, that is?
MR. HOCHWALD:If the Tribunal please, the prosecution does not recollect that the witness has made such a statement.
THE PRESIDENT:Now, the witness did not say that. Now, please don't lead the witness. You ask questions which will allow her to use her own discretion and her own judgment, her own recollection. BY DR. KRAUSE:
QWitness, a last question in this particular set of questions. why is the entry of 7 February not included in this edition?
AIt was a matter of polishing the teeth which is not charged, and therefore the addition line has been made where the treatment, or at least not the treatment was fin is lied, but that part of the treatment which is being paid for.
QIf you made all the entries in your own handwriting, can you then guarantee for the correctness and the accurateness of those entries
AYes.
QIf I understand you correctly then you testify on oath that whatever is entered on this card corresponds to the fact, that it is correct?
AYes.
DR. KRAUSE:Thank you.
CROSS EXAMINATION BY MR. HOCHWALD:
QMay it please the Tribunal, Witness, is it true that you have executed an affidavit on the 27th of January 1948?
AYes.
QDo you recall the contents of this affidavit, or do you want me to hand you a copy?
AI do remember it.
QNevertheless, I would like to hand you a copy. You say in this affidavit that Dr. Haensch is known to you. How long do you know him?
AI have known Dr. Haensch only during the time of this treatment.
QWhere from do you recall his first name?
AThat I do not know. If it is not entered in this card index, I am sure I have never asked for his first name.
QBut in your affidavit, you say, "Dr. Walter Haensch is known to me". Till you look now at the chart, does on the chart the first name appear.
ANo.
QWhere from did you know then when you executed this affidavit then his first name was "Walter"?
AThen it was put in at the attorney's, Dr. Kirsch, I have not paid attention to it, the lawyer Dr. Krisch, in Berlin-Zehlendorf, who actually made out the affidavit, then must have added the first name.
QThen you state here then that the first name of Haensch was not known to you?
ANo.
QIt was not known to you?
ANo.
QDid you see Haensch after his treatment by Dr. Maennel had been finished in 1943?
ANo.
QHas somebody shown you a picture of his in thelast time?
ANo.
QWould you recall the defendant?
AThat is very difficult to say. I am not sure. I don't know whether I would recognize the face after that many years.
QWill you try? Look at the defendants.
AI shall try to do so, but I am not sure whether I shall recognize the face. I could not say.
QSo you do not recall him?
ANo, I am afraid not.
MR. HOCHWALD:If the Tribunal please, I wish that the defendant, Haensch, would show himself to the witness.
THE PRESIDENT:Well, if she doesn't recognize him, there is no point in showing him, then.
MR. HOCHWALD:I only want to know if she Will recognize him if he is shown to her. BY MR. HOCHWALD:
QWill you tell the Tribunal how this chart which you have in your hand was found and who found it?
AThese cards after the collapse were packed away in some place because now we use new cards. The cards are now on the attick, aid there is only a small remainder of cards because one part of the cards was soiled and the remainder I put into the attick.
QHow many did remain of these cards -- how many of these cards remained?
AThat is difficult to say. There are hundreds of them. There are certainly a few hundreds.
QWill you tell me nowhow this specific card was found, this one which is before you, if you know that?
AWell, there are private cards; they were on the writing desk and therefore they probably remained because those which I put down stairs in the card index box had all been thrown down and were soiled by the Russians. They have been destroyed.
QWitness, my question was, how was this card which is just now before you found among these hundreds of cards which have remained?
AThey were taken from the boxes -- the card index cards were put into large boxes in alphabetical order and therefore I could find it.
QSo you have told us now that you found the card. Who asked you to look for the card, please?
AMrs. Haensch arrived and asked whether Dr. Maennel would perhaps make out a certificate to the effect that Haensch in 1942 had been treated by Dr. Maennel, and I said, "He will do so if this card index card can be found." Thereupon I looked for the card.
QWhen was that, please?
AI cannot give a date. That must have been beginning of January?
QHow long did it take you to find the card?
AAbout three-quarters of an hour. I am sure it took as long as that.
QThat did you do then when you had found the card?
AI put it into a folder and told Dr. Maennel that I put the card there, he could now make out the testimonial.
QWitness, who had the cord in his hands in the time between you found the card and you have put the card to Dr. Maennel?
AI put the card there and then nobody had it.
QI am sorry, would you re cat your answer. I did not follow.
AI got this card from the attic -- I put it into this folder and nobody over got it except Dr. Maennel.
Q you say here in your affidavit, and you have testified so on the stand that all the entries which were made on this card were made by you and were made on the dates indicated on the card, is that correct?
AYes.
QWitness, please look to the third line opposite the printed word "telephone" and then look please to the entry of 7 February 1942. Is it not apparent from the card that these two entries were made by a person different from the person who made the other entries?
AI see here on the 26th November, perhaps my sister deputized for me. It may be her entry.
QWitness, please, you did not answer my question. I asked you whether it is not apparent that the third line, the address or the word which is written opposite the printed ward "telephone" and the entry of 7 February 1942 are written by a person different from those or those who have made other entries on the card?
AI wrote that.
QAnd who made then the other entries?
AAll the entries are mine. I only said on the 26th November that is probably the handwriting of my sister who might have taken my place for once.
Q 26th November of what year?
A 41.
QSo you then admit that your statement in the affidavit that all entries were made by you is not correct?
AI lid write everything, I only see this one entry on the 26/11 -- November -- that probably was made by my sister.
QDid you see the card when you made this affidavit?
AYes.
QWhy then did you not check the card and say that you made all entries yourself if you knew that one of the entries at least was made by somebody else than by you?
AI did not see that. It did not strike me at all.
QWitness, you have executed this affidavit in lieu of an oath. Did you know when you made the affidavit for what purpose this affidavit was made?
AI did.
QNevertheless, you signed the affidavit without checking the card, is that correct?
AIt did not strike me that -
QWitness, I ask you again who made the two entries, the third line or opposite the printed word "telephone" and the entry of 7 February 1942?
AThat is my handwriting.
QDid you make these entries?
AYes, I wrote it myself.
QWhen did you make this entry?
A "Svenhedin Blatz". I wrote myself after Mrs. Haensch had come to see me and given me the new address, that was in January this year.
QAnd did you write the entry of 7 February?
AAfter the patient had been there. When the patient was actually treated.
QWitness, you admit then that you added something on the card after the visit of Mrs. Haensch?
AYes.
QWitness, is it not patently clear that the same person who wrote the word "SvenhedinBlatz" with the same ink and at the same time also made the entry which allegedly was made on the 7th of February 1942?
ANo, after Mrs. Haensch came to see me I wrote "SvenhedinBlatz".
QSo you admit then that you have made additions on the chart in January 1948?
AI don't understand.
QSo you admit then that you made additions on the chart in January 1948?
AI do.
MR. HOCHWALD:I have no further questions, your Honor.
THE PRESIDENT:May I see that card, please?
EXAMINATION BY THE PRESIDENT:
QWho wrote in this address which appears after the printed word "telephone"?
AI wrote that.
QI thought you said your sister wrote it.
ANo. The address after the word "telephone" I wrote myself.
QAnd when did you write that?
AAfter Mrs. Haensch had come.
QWhy did Mrs. Haensch tell you to add that -- what explanation did she give to you which caused you to write this in -- What did she say to you -- why was it necessary to add that address?
ABecause this letter that was supposed to be written by Dr. Maennel was to be sent there by post and therefore she told us they were living somewhere else now, therefore, I put it in pencil on an envelope and when I found the card I added that.
QWell, did Mrs. Haensch tell you to add this to the card?
ANo.
QWell, we still don't understand why it was necessary tto add that address to the card.
AI wrote it down on the card because we were going to send this to Mrs. Haensch. I had written the address on an envelope and generally one throws these envelopes away, and therefore I put it on the card.
QWell, why didn't you give the card to her when she was there?
AI hand't found it then. It was only the next day that I went upstairs and looked for the card.
QWell, then did you mail it to her?
ANo. Mrs. came here to fetch the letter.
QWhy was it so important to have the address on the card if she was going to call for it personally?
AI didn't know that she would come. She actually did come on the next but one day and the letter had not been made yet.
QWell, what did she say when she asked for the card, that you were to mail the card to her?
ANo, not the card, only the letter by Dr. Maennel -- the --the medical certificate which she had asked for, that is what she wanted.
QThe affidavit you mean?
ANo, only the letter to the effect that Dr. Haensch had been treated in 1942.
QWell, why was it necessary to add that information to this card which had nothing to do with the mailing of the certificate?
AI had found the index card, and as I had written it just bythe-way on this envelope, I also put it on this card. There is nothing unusual about it, I just put it there.
QWell, you think there is nothing unusual about changing a permanent record?
AWe regularly do that when patients have moved and change their address and they tell us about these addresses, we put them on the index card.
QAnd at the same time that you added this address, did you add this item of February 7?
ANo, I only added only the address.
QWhich entry was made by your sister?
THE PRESIDENT:Let her point it out and then show me. BY THE PRESIDENT:
QHow many other entries were made by anybody else?.
ANone.
QSo that your sister ma do the entry of November 26 and everything also on the card was written by you?
AYes.
QIs that correct?
AYes.
QNow, you remembered Dr. Haensch coming there for treatment, do you? Do you remember that Walter Haensch came there for treatment in 1941, 1942, and 1943?
AAfter Frau Haensch had said whether Dr. Maennel would make out a medical certificate, I assumed that the patients had been there and therefore I looked for the card index card.
QWell, then after you had spoken with Mrs. Haensch, did you recall Haensch having been there for treatment?
ANo.
QWell, then why did you say in your affidavit that from this activity "Dr. Walter Haensch" then with the address "is known to me"-why did you say that if he wasn't known to you?
AI had already looked for the card and found it, after I made out the affidavit and therefore I knew, as I had written it myself, that Dr. Haensch had been treated, only from this card.
QDid you remember his first name?
ANo. The first name, if it was not contained on the index card, I did not know it.
QWell, this affidavit says that Haensch was known to you. Do you mean that?
AI only know Dr. Haensch from the treatment he received.
QWell, then you do know that Haensch came there for treatment?
AYes, After I had seen the card, I know it -- I know that he had been there.
QThen you know that Haensch had come there for treatment? A Yes.
QNow, this card indicates that he was treated over a period of three years, about 12 times, is that right?
AYes.
QHow many visits would the average patient have at your office for one treatment?
AThat depends on the treatment.
QWell, I said "the average", would you say that this was more than the average or less than the average, you were treating from 80 to 100 patients per day, weren't you?
AYes.
QWell, were they different patients every day, or would some repeat?
AWell, they kept coming after 8 days sometimes after 3 or 4, days until the treatment had been completed.
QYes, and can you give an estimate as to the average number of times one patient would be treated before his treatment was complete?
ARoughly throe to four times. That depends on what is wrong.
QAll right, now, if you were having from 80 to 100 patients per day, do you realize how many visits there would be in a year's time? Say, on the average of 90 per day, let us say 300 days per year. Do you realize into what figure that goes?
A I.Yes.
QThat would be 27,000.
AYes.
QAnd over a period of 3 years that would 81,000 visits wouldn't it?
AWell, now, of course, patients kept returning. They are not always now patients.
QWell, that is the reason I asked you about how many visits one patient would have before his treatment would be completed and you told me on the average of 3 or 4 treatments.
AWell, I only mean to say, if only one or two teeth are being treated, then he has to return 4 to 5 times; if, of course, he has pain again after about 8 weeks -- well, of course, that is very difficult to say.
QVery well, now you have a recollection of Haensch, haven't you, of Haensch coming there during 1941, 1942, and 1943 -- you remember his coming there, don't you?
AI don't remember it now, but he must have been there because I made the entries on the index card, other wise, the index card would not even exist.
11 Feb 1948_A_MSD_18_1_Arminger (Hildesheimer)
QI am asking you if you remember his as a person, not merely as an ink entry -- as an individual -- do you remember hin as a person, Haensch, coming there for treatment?
AThat is difficult to say. I could perhaps say that he was a tall man, but it is too long ago and I can't say for certain, The name, when Mrs. Haensch came for this, I did know that Haensch had come once for treatment. The name was known to me.
QThen you do remember him?
AWell -- I can -
QIn a period of three years, when your boss must have treated, according to these figures, at least 20,000 people, you remember that Haensch is a tall man. Is that what you are telling us?
AI cannot say with certainty. I do not know.
QWell, now, tell us definitely, Witness, whether you do or do not recall Haensch as a man, not as an entry.
ANo, I cannot.
QYou don't have any mental image of him?
ANo, no.
QWell, then, please tell the Tribunal why you tried to identify him in the defendants' box.
AWhen you are in this activity, one does remember faces often. One often sees faces and one believes to have seen then before because very often I do recognize the patients in the office, and especially when I hear their names later on and. when I see the patients. I can remember when former patients of the year 1939 and 1940 returned again. In our business one does remember them.
QLook at the defendants' box. Is it the first man in the first row? Is that Haensch over there, the rather handsome man, smiling?
AIt is possible, but I do not know. I really do not know.
QIs it the first man in the second row?
ANo, that is quite impossible. It couldn't be he.
QIs it the second man?
11 Feb 1948_A_MSD_18_2_Arminger (Hildesheimer)
ANo.
QIs it the thrid man?
AI really couldn't tell you. No, it is not Haensch. It isn't he either.
QWell, is it the fourth man?
ANo.
QLook very closely in the defendants' box now and see if you can recognize him.
AI think it is the third in the first row from here.
QThe third in the first row?
ANo, against the wall. It is the second row, Your Honor.
QThe third from where?
ATo the right from here.
QThere are two rows. The first or the second row?
AI mean the second row, the first row from the wall.
QWhy did you tell us a few moments ago that you had no mental image of this person?
AI said just now that one might possibly recognize the people when they return after years, hut I just saw him for the first time now without the glasses and I assume that is Dr. Haensch.
QSo, out of 20,000 people, after a period of five years, you remember this man as being Haensch?
AI assume that it is he, but I couldn't say with certainty.
QAre you positive now that that is Haensch, that is, the third man?
ANo. not by any means.
QAre you willing to swear on oath that that is Haensch sitting there, the man you have identified?
ANo, that I couldn't do.
QIs there anybody else sitting in the bosy that looks like the person whom you are trying to recall?
AIn the second row possibly there is another gentleman, but I 11 Feb 1948_A_MSD_18_3_Arminger (Hildesheimer) am not sure.