The Tribunal will have to decide whether, in view of the enormous extent
of epidemic typhus, in view of the 15,000 deaths it was causing daily in
the camps for Russian prisoners of war alone, the order given by the
government authorities to test the typhus vaccines was justified or not.
If the answer is in the affirmative, then the typhus experiments at
Buchenwald were not criminal, since the prosecution did not contest that
they were carried out according to the rules of medical science. In this
case, any responsibility of Mrugowsky for these experiments is excluded.
If, on the other hand, the Tribunal answered the question in the
negative and declared the typhus experiments at Buchenwald to be
criminal, then examination would have to be made as to whether Mrugowsky
was responsible for them in any way.
In my written statement I explained in detail that Block 46 at
Buchenwald, where the experiments were carried out, was not subordinate
to Mrugowsky, but that Dr. Ding worked under the immediate orders of
Grawitz. Out of the extensive evidence I offered to prove this fact, I
only want to stress, one, the letter addressed by Grawitz to Mrugowsky
in which Grawitz declared explicitly on 24 August 1944 that he gave his
_consent_ for the series of experiments he mentioned in the letter to be
performed in Block 46 at Buchenwald, and two, the letter addressed by
Mrugowsky to Grawitz on 29 January 1945 in which he suggests the testing
of a jaundice virus and writes: “Please obtain permission from the Reich
Leader SS to perform the infection experiments _in the typhus
experimental station of the concentration camp Buchenwald_.”
These two letters demonstrate that even in autumn 1944 and early in 1945
Mrugowsky could still only have performed a series of experiments in
Block 46 with special permission. This refutes the assumption of the
prosecution that Block 46 was subordinate to Mrugowsky.
But above all, I want to stress again the affidavit given by Dr. Morgen
on 23 May 1947 in which he stated that when he investigated the
occurrences in Block 46 at Buchenwald, Dr. Ding showed him an order
signed by Grawitz in which Ding was commissioned explicitly to carry out
the experiments.
Dr. Morgen has further stated that he had to report to Grawitz
personally about the result of his investigations as an examining
magistrate at Buchenwald. The results here, too, according to the
affidavit given by Dr. Morgen showed that Grawitz ordered the
experiments. On this occasion he called Dr. Ding “his man,” and said he
would be very sorry if the investigation caused any charges to be
brought against Dr. Ding, since he had employed him for the experiments.
Morgen emphasized that the name of Mrugowsky was not mentioned in the
course of his conversations with Ding and Grawitz. This clearly shows, I
think, that Mrugowsky had nothing to do with Block 46 at Buchenwald. As
further evidence that Ding was actually subordinate to Mrugowsky in
Block 46, the prosecution referred to the sketches designed by
Mrugowsky. (_NO-416, Pros. Ex. 22 and NO-417, Pros. Ex. 23._) These
pictures show that the Division for Typhus and Virus Research in
Buchenwald was subordinate to Mrugowsky; Mrugowsky does not deny this.
Division for Typhus and Virus Research was only Block 50. Block 46 was
called as formerly “Experimental Station of the Concentration Camp
Buchenwald.” Mrugowsky’s letter just quoted shows this. Block 46 was
merely attached to the Division for Typhus and Virus Research without
establishing thereby any relationship of subordination to Mrugowsky.
This is described and proved in detail in my closing brief.
From the two sketches designed by Mrugowsky, showing that the Division
for Typhus and Virus Research was under his control from its
establishment to the end of the war, nothing can be deduced, therefore,
about whether he was Ding’s superior in Block 46.
This fact and the further evidence brought in my closing brief
demonstrate that Block 46 at Buchenwald was not subordinate to
Mrugowsky. Therefore, Mrugowsky bears no responsibility for the typhus
experiments in Block 46.
In this connection, I want to emphasize that Mrugowsky never denied that
he knew the typhus experiments at Buchenwald were ordered by Grawitz and
carried out by Dr. Ding. He never denied that he saw, for instance, the
report about the series I of the experiments, which he rewrote in his
letter of May 5, 1942, and that he saw Ding’s essay about acridine which
Ding sent to Grawitz for approval to publish 18 months after the
experiments were completed, and which Grawitz then gave to Mrugowsky to
return to Ding. But from this knowledge, no responsibility on the part
of Mrugowsky can be deduced for the typhus experiments. The experiments
were ordered by Himmler and Grawitz as his highest military superiors.
As a medical officer of the Waffen SS, Mrugowsky had no possibility at
all of opposing these experiments ordered by his superiors. When Grawitz
first suggested the experiments, he resisted at once, and induced him to
ask for a decision from Himmler as the highest superior. Himmler decided
against Mrugowsky. Under these conditions Mrugowsky could do no more.
His opposition, however, resulted in the fact that he was not
commissioned with the experiments, but that Ding received the order for
execution.
Nor has the prosecution brought any evidence to show that Mrugowsky
subsequently intervened in any way in the typhus experiments at
Buchenwald; that he furthered them, or participated in them in any way.
On account of the fact that Mrugowsky knew about the typhus experiments,
no charge can be made against him under criminal law, because neither in
law nor in fact had he any possibility of preventing the experiments or
enforcing their cessation later on.
The prosecution further based its charge against Mrugowsky on the
depositions of several witnesses to the effect that he had been Ding’s
chief in Block 46, also insofar as the experiments carried out by Ding
in Block 46 were concerned. I have energetically contested this. All the
statements produced by the prosecution in this respect originate from
Ding. None of these statements comes from anybody who worked in Block 46
himself. It is significant that the prosecution has not been able to
submit one single order given by Mrugowsky to Ding for the execution of
typhus experiments, although its witness, Balachowsky, stated that Kogon
had managed to collect and secure extensive evidence which he had handed
over to the American Army. If there had been any written orders from
Mrugowsky to Ding, the latter would certainly not have destroyed them
for the sake of his own protection, and Kogon would have given them to
the American Army with his other documents. It is true that the witness
Kogon (whose unreliability I shall prove later) maintains that Mrugowsky
gave mostly only oral orders to Ding. But he further testified that from
the year 1943 onwards, Ding was no longer satisfied with oral orders
from Mrugowsky but asked for them to be given in writing. In spite of
this, not a single written order from Mrugowsky to Ding concerning the
execution of a series of typhus experiments was produced.
The only witness who might be able to state from his own knowledge
anything about the order given to Ding in respect of the typhus
experiments is the witness Dr. Morgen. I just indicated that Morgen saw
the order given by Grawitz to Ding for the execution of the typhus
experiments, and that Grawitz personally told Dr. Morgen that Ding was
his man at Buchenwald and said he employed him there.
The error of the witnesses, who stated that Mrugowsky had been Ding’s
chief, results from the fact that Ding was dependent on Mrugowsky in
respect of the production of vaccine in Block 50 and also concerning his
activity as a hygienist. I proved in my closing brief that from 1942 to
1945 Ding was only working on the typhus vaccine experiments for about
2½ months, if one adds up all the hours he worked on them. All the rest
of his activity in approximately 3 years was devoted to the vaccine
production and the work of a hygienist, that is, work in which he was
Mrugowsky’s subordinate. It is comprehensible that during the
approximate period of 33 months when he worked for Mrugowsky, he
received many more orders from him than from Grawitz for the execution
of the 13 typhus vaccine experiments. It is, therefore, comprehensible
that the main part of his correspondence under these circumstances was
carried on with Mrugowsky.
In consequence of the description of the prosecution which hardly spoke
of anything except the typhus vaccine experiments, and only produced
documents thereon, the impression was certainly given that the typhus
vaccine experiments were Ding’s main activity at Buchenwald. That is not
so. In his main activity at Buchenwald, Ding was Mrugowsky’s
subordinate. Therefore, because his main correspondence was with
Mrugowsky and he called Mrugowsky his superior, one cannot assume that
also in respect of the typhus vaccine experiments there was some
connection between Mrugowsky and Ding, and that Mrugowsky participated
in these experiments in any way or was responsible for them. The
prosecution did not deny that such double subordination, as it existed
between Ding on the one hand and Grawitz and Mrugowsky on the other, is
possible in a military organization and happened frequently. I can refer
also in this respect to the statement in my closing brief.
The testimony of the witness Kogon and Ding’s diary (_NO-265, Pros. Ex.
287_) are the chief items of evidence submitted by the prosecution
against Mrugowsky. This is why, in my closing brief, I explained in
detail that neither Kogon’s statement nor the Ding diary furnish any
substantial proof. As to Kogon’s testimony, I want to emphasize once
more the principal points:
Kogon described on the witness stand the dramatic circumstances under
which he pretends to have saved the so-called Ding diary. I needn’t
point out that the particular occurrences which happened when he saved
the diary would have impressed him so much that he would not forget them
if his statement were true. Therefore, he couldn’t possibly give a
different description of this event on several different occasions. In
fact, in the doctors’ trial and in the Pohl trial,[61] he gave two
reports about the way he allegedly saved the diary. These reports differ
so fundamentally and in a manner which could only be possible if his
contention that he saved the diary is untrue, and the descriptions he
gives of this event are pure invention.
Kogon stated in the doctors’ trial that Ding sorted the secret documents
to be burned in Block 46. While Ding and Dietzsch went into the
adjoining room for a moment, he threw the diary and a heap of papers
into a box to save them from destruction. Two days later he had told
Ding that he had saved the diary and a heap of other papers from being
destroyed and received permission to fetch them from Block 46;
otherwise, he wouldn’t have been able to get them out. He fetched them
and kept them ever since. This description is quite plausible and would
be hard to refute if there was not Kogon’s own testimony in the Pohl
trial.
In the Pohl trial, the same Kogon testified about three months later
that he was standing with Ding and Dietzsch at the same table when the
secret documents were sorted for destruction. Suddenly Ding pushed the
diary and other papers towards him. He took them and carried them to
Block 50, together with Ding. Ding did not know at this time that Kogon
had the diary and the other documents with him, but he told Ding this on
the same day.
A more striking contradiction than these two statements about the saving
of the diary is hardly possible. If Kogon had really saved the diary in
the way he described in the doctors’ trial, then the moment when he
threw the diary into the box and his reflections during the two days
before he told Ding that the diary had not been burned would have
remained indelibly in his memory. He would have remembered the way from
Block 46 to Block 50 to fetch the diary and the way back with the diary
so well, that a different description would be impossible. Also, if the
preservation of the diary had occurred in the way described by Kogon in
the Pohl trial, it certainly would have been recollected by him so
clearly that a different description would also be impossible. So the
two descriptions about the preservation of the diary, differing so
fundamentally from each other, can only be explained in two ways. Either
Kogon’s statement is untrue and he didn’t save the diary at all—in this
case, if he told the Tribunal a falsehood about such an important point,
then his whole testimony is unreliable—or Kogon must have such a bad
memory that his contradictions in his testimony can be explained
therefrom. In this case, too, his entire testimony would have no
probative value on account of his bad memory.
The Dietzsch testimony submitted by me speaks against the correctness of
Kogon’s statement on the saving of the diary. Dietzsch states that
during the destruction of the secret documents in Block 46 Ding tore up
the diary in his presence and threw it into the lighted stove where it
was burned. Dietzsch declared explicitly that Ding made sure that all
the documents were entirely burned after the destruction of the papers
was finished.
I should say that Dietzsch’s statement combined with the contradiction
between the two statements of Kogon’s proves that what Kogon said about
the saving of the diary is a falsehood.
In my closing brief I dealt in detail with still further points on which
the statements made by Kogon in the doctors’ trial and in the Pohl trial
contradict each other in a similarly marked manner concerning the
preservation of the diary. It will not be necessary to repeat all these
arguments here. I should like to refer the Tribunal to them.
The second main evidence of the prosecution against Mrugowsky is the
diary which is said to have been saved. The two fantastic descriptions
of the saving of the diary given by Kogon are unreliable. Therefore,
Dietzsch must be believed. He said that Ding burned the original diary
of Block 46 in his presence. This statement is supported by the opinion
given by the handwriting experts, Zettner and Nastvogel, treated in
detail in my closing brief.
In the meantime the prosecution declared while discussing the Beiglboeck
evidence that it could have handwriting examined to determine the date
of its origin at an institute in Frankfurt and also documents
investigated in every way. The prosecution thereupon stressed explicitly
that I also had the Ding diary examined by experts.
The Ding diary is of importance for the prosecution for the charges
against several defendants. Therefore, the prosecution ought to have
found it more important to have the genuineness of the Ding diary
examined rather than the Beiglboeck documents. Ding signed in ink. So
the institute at Frankfurt would have been able to ascertain without any
difficulty whether the signature on the first page is several years
older than the signature on the last page. Furthermore, the institute
could have ascertained without any difficulty whether the whole diary
from the end of the year 1941 till spring 1945 was written on exactly
the same paper or not. But the prosecution did not hand the diary to
this institute for examination. This fact shows that it was itself
convinced that such examination would not have given a result favorable
to the prosecution.
In my opinion, this is a particularly strong argument for the assumption
that the diary was really composed and written subsequently. I also want
to refer the Tribunal to my closing brief with reference to this point.
The probative value of a diary lies in the fact that the man who kept it
cannot foresee the future development when making his entries. Therefore
it is to be presumed that the entries portray the events objectively and
in their entirety. If a document which is subsequently composed is given
the external form of a diary, one can deduce therefrom the intention to
influence the reader in a certain direction and also to deceive him for
this purpose. That is the reason why any record written subsequently and
made up in the form of a diary has no probative value.
The prosecution tried to show that the Ding diary is of probative value
by comparing its contents with a number of documents having the same
contents as the entries in the diary. In my closing brief I dealt with
these documents in detail and proved that they all, without exception,
came from Ding. All documents which the prosecution compared with the
diary, Ding still had at hand when he made the belated compilation after
the original diary had been burned. They are vouchers he used for the
entries he made in the diary we have now. Therefore, it cannot be
deduced from the conformity of these documents and the diary that the
latter is good evidence.
One of the documents the prosecution compared with the diary is the
so-called work report of Ding. This work report is really only a draft
which was not signed and was not sent to Mrugowsky. I explained this in
detail in my closing brief and offered evidence for it. According to
Kogon’s statement, this draft of the report was written in Block 50 by
the second compound clerk. Such draft has no probative value unless it
is signed by the person who should sign it. In this instance, it would
have been Ding. Mr. Hardy admitted that this work report was only
prepared for signature by Ding. He thereby admitted that it was not
signed. Therefore, the draft has no probative value. If these three main
elements of evidence fail, Kogon’s statement, the work report, and the
Ding dairy, the chief part of the evidence brought forward against
Mrugowsky fails.
The prosecution contended in its summing-up that the experimental
subjects volunteered neither for the typhus experiments nor for the
other experiments at Buchenwald. In respect of the other experiments,
this is not correct. I shall deal with this later. In respect to the
typhus experiments, it may be correct that most of the experimental
subjects did not volunteer.
On the other hand, the closing brief of the prosecution shows no
allegation for the period up to the fall of 1943 that Mrugowsky had
anything to do with the selection of the prisoners for the experiments.
This is correct and was also put in in my closing brief. In autumn 1943
according to the contentions of the prosecution, again relying on
Kogon’s testimony, Ding is said to have asked Mrugowsky for the
experimental subjects to be chosen by the Reich Leader SS. This
statement of Kogon’s is also untrue. I have pointed this out in detail
in my written statement.
In this connection, the prosecution mentions Himmler’s order of 27
February 1944 relating to the selection of the prisoners by the Reich
police agency. But this order of Himmler was not given pursuant to a
suggestion made by Mrugowsky. It is really due to the attempts of Dr.
Morgen. He explained this accurately in his affidavit of 23 May 1947,
which I offered in evidence.
So it is an established fact that until autumn 1943 Mrugowsky had
nothing to do with the selection of the prisoners, and that from this
time on, the prisoners for the typhus experiments were chosen by the
Reich criminal police agency pursuant to Himmler’s order suggested by
Dr. Morgen, so that _after_ this time Mrugowsky had _also_ nothing to do
with the choice of the prisoners.
The prosecution calls the typhus experiments criminal, in particular,
because control persons were used and above all because of the alleged
“passage persons”.[62] As to the control persons, I explained at length
in my closing brief that such vaccine experiments are impossible without
the use of control subjects and lead to no practical result without
them.
If one takes the Ding diary for information, it appears that in a number
of test series the cultural virus used was no longer pathogenic to human
beings. If no control persons had been infected, the fact that the
experimental persons were not taken ill would have been explained as a
consequence of the protection obtained by the vaccination. This would
have led to entirely wrong deductions and to the use of inferior
vaccines in practice. If one considers the typhus experiments as
admissible, the use of control subjects is, therefore, indispensable. I
explained this in detail in my closing brief.
On the other hand there was no justification for the use of passage
persons who were infected merely in order to have live virus always on
hand. I have demonstrated in my written arguments that such passage
persons were never used. Until April 1943 there was no reason to use
them. For until April 1943 it is stated explicitly in the Ding diary
that in each series of experiments the infection was performed by means
of cultural virus bred in the yolk sacs of hens’ eggs which Ding
obtained from the Robert Koch Institute in Berlin. After 11 April 1943,
Ding infected with fresh blood taken from persons suffering from typhus.
But during this period, too, the use of passage persons was superfluous
because Ding always had persons at his disposal who had contracted
typhus spontaneously, and he could take the fresh infected blood from
them.
If the prosecution had wanted to bring evidence to show that passage
persons were used in Block 46, this could have been done best of all by
Ding and Dietzsch. The prosecution produced statements from both in
which the question of the passage persons is not mentioned. The
prosecution knew from the examination of Mrugowsky on the witness stand
that he denied the use of passage persons. When I said at the end of the
presentation of my evidence that I did not call Dietzsch to the witness
stand but only offered an affidavit from him, Mr. Hardy asked the
Tribunal for permission to interrogate Dietzsch on certain facts.
However, he never produced a record of such an interrogation. This is
further evidence that Dietzsch did not confirm the use of passage
persons. All the witnesses who testified on the use of passage persons
did not work in Block 46. They, therefore, know nothing from their own
observation, but only through third persons. Dr. Morgen discovered
nothing about passage persons during his investigations as an examining
magistrate in Block 46 in Buchenwald. So there is no conclusive evidence
of any kind to show that passage persons were used in Block 46. On the
contrary, I proved in my closing brief that passage persons actually
were _not_ used.
If the Tribunal were, nevertheless, to assume that the use of passage
persons was proved, there would be no guilt of Mrugowsky involved in the
use of these passage persons because I demonstrated that Ding was not
his subordinate in respect of his activity in Block 46, and also there
is no evidence whatever to show that he even as much as knew about the
use of passage persons.
In my written statements, I then dealt in detail with the experiments
with acridine preparations within the framework of the typhus
experiments. I proved that Ding did not obtain these preparations from
Mrugowsky but from the I. G. Farbenindustrie A. G. There is no evidence
whatever to show that Mrugowsky had any knowledge of these experiments
performed by Ding.
Ding’s report on the acridine experiments submitted for publication was
handed to Mrugowsky by Grawitz only about 18 months after the
termination of the experiments. Therefore, no charge can be made against
Mrugowsky under criminal law for the experiments with acridine
preparations which caused a particularly high number of deaths.
_EXTRACT FROM THE CLOSING BRIEF FOR
DEFENDANT MRUGOWSKY_
* * * * *
_Convalescence Serum, Blood Conservation, and Blood Serum Conservation_
CONVALESCENCE SERUM
In Ding’s diary (_NO-265, Pros. Ex. 287_) two entries are found
concerning the taking of blood for the purpose of extracting
convalescence serum. During the period from 26 May to 12 June 1944,
6,500 cc. of blood were taken from 15 defervescent typhus patients, and
between 13 October and 31 October 1944, 20,800 cc. of blood were taken
from 44 defervescent typhus patients. The blood was taken between the
12th [14th] and the 21st day following the disappearance of the fever.
Thus an average of 465 cc. for each patient can be calculated. The
witness for the prosecution, Kogon, has testified on this question.
(_Tr. pp. 1192-3._) His statement contains several serious
misinterpretations. In the first place, it must be stressed that the
taking of blood from a convalescent patient by no means constitutes an
“experiment,” as indicated by Mr. McHaney. What would be the experiment
in that case? The only thing to find out is whether the person in
question is suitable or not for the taking of blood.
Even Kogon admits that the taking of blood from convalescent patients is
an ordinary procedure. I have proved the same thing through Mrugowsky
14, Mrugowsky Exhibit 37. The same appears from the affidavit of the
expert, Professor Dr. Siebeck. (_Mrugowsky 15, Mrugowsky Ex. 38._) There
it says:
“* * * It is correct that in the case of typhus, convalescence
serum is frequently used for therapeutical purposes * * *.”
The expert, Professor Dr. Vollhardt, also confessed to the same opinion.
It is then a fact that the taking of blood from former typhus patients
during convalescence is, in principle, in accordance with medical usage.
It has been proved that no objections can be raised against the
treatment in Block 46. Accordingly, it is very improbable that the
physician in charge should have exposed particularly asthenic patients
to the taking of blood. The witness Dorn has stated that the delivery of
drugs to Block 46 took place through the prison hospital and that he
personally discharged the deliveries twice a week. Furthermore, the
examining judge, Dr. Morgen (_Mrugowsky 23, Mrugowsky Ex. 26_)
demonstrated that even in 1944—
“* * * the treatment and supply of the sick persons was careful
and good in every respect. According to the impression I gained,
the sick persons were treated similar to those in a good
military hospital.”
This is also confirmed through the indictment of Morgen against Koch.
(_NO-2366, Pros. Ex. 526._)
Consequently, there is no reason to doubt that they were in a condition
favorable to the taking of blood and that this constituted no danger for
them. Mrugowsky expressed his opinion on this question during his
examination. (_Tr. p. 5166._) He pointed out that the taking of blood in
a quantity not exceeding 500 cc. is in complete compliance with medical
regulations and that the convalescent patients received additional food
as compensation for the loss of blood. In his affidavit Dr. Ellenbeck
propounded his view concerning the extraction of typhus convalescence
serum. (_Mrugowsky 120, Mrugowsky Ex. 110._) From this it appears that
Ellenbeck also received blood from patients belonging to the Waffen SS,
consequently not exclusively from prisoners in the concentration camps.
In the above-mentioned document (_Mrugowsky 15, Mrugowsky Ex. 38_)
Professor Siebeck expressly points out:
“It is at least quite improbable, if not impossible, for human
beings, who are in the convalescent stage of typhus, to be so
harmed by a single bloodletting of 439 cc. that they die after a
certain period has elapsed in consequence of the loss of blood.”
The same opinion is endorsed by Professor Dr. Vollhardt.
In face of this evidence no support is to be found for the assertion of
Kogon that many convalescent patients died at that time, nor for his
suspicion that they died as a consequence of the taking of blood. The
result of this exposition then is that:
1. The taking of blood for the purpose of extraction of convalescence
serum is not an experiment but a medical measure. It is not criminal but
customary throughout the world.
2. The bleedings were carried out according to the regulations of
medical science.
3. The quantities taken were below the usual limit, probably even very
far below.
4. It is absolutely impossible that any person whatsoever died as a
consequence of the taking of blood.
On the other hand, the blood pressure of persons convalescing from
typhus, in particular, is often too low. Their blood vessels are still
not as elastic as before. In such cases, a withdrawal of blood within
the normal limits is very often a practiced method of relieving the
circulation.