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Attorney-at-law von Rohrscheidt

Defense Counsel for Rudolf Hess

Nurnberg, 29 November 1945

To the General Secretary of the International Military Tribunal, Nurnberg:

Reference: Rudolf Hess—Session of 30 November 1945.

I. Reply to the request of the Tribunal of 28 November 1945.

II. Preparatory statement for the trial.

I

I, as Counsel for the Defendant Hess, answer the request of the Tribunal of 28 November 1945 as follows:

1. No formal objection is being raised by Defense against presentation and use of the expert opinions obtained by the Tribunal.

2. The Defense does not think the defendant Hess to be “verhandlungsfaehig” (in a state of health to be tried).

3. Material objections are being raised by the Defense, inasmuch as the expert opinion denies the competence of the defendant as a consequence of a mental disorder.

II

For the proceedings, I, as Counsel for the Defendant Hess, wish to make the following statement:

1. I move:

a. That a decision be made to adjourn the proceedings against the defendant temporarily.

b. That in case incapacity to be tried is asserted, proceedings in absentia against the defendant should not be carried on.

c. That in case my motion ad a is rejected, a super expert opinion be obtained from additional eminent psychiatrists.

2. I argue these motions as follows:

ad 1-a:

The adjournment of the proceedings is necessary because of the unfitness of the defendant to follow them.

In this respect the (medical) opinions state unanimously upon the questions asked by the Tribunal, that “the ability of the Defendant Hess is impaired to the extent that he cannot defend himself, nor oppose a witness, nor understand the details of evidence.” Even if the amnesia does not keep him from understanding what happens about him or to understand the course of the trial, this amnesia nevertheless has a disturbing effect on his defense.

The impairment of the defendant in his defense, through his amnesia, recognized by all opinions as a mental defect, has to be acknowledged as such, in view of the statements in the opinions of the Soviet, English and American Delegations of 14 November 1945, which designate the mental condition as one of a mixed kind, but more as one of a sort of mental abnormality. This will not make a pertinent defense possible for him (Hess).

In this respect, it does not have to be considered that the defendant is not mentally ill “in the literal meaning of the word” and that he can follow the proceedings. The question whether the defendant is at present incapable, as a result of the diminution of his “mental powers,” to understand all occurrences and to defend himself properly, has nothing to do with his mental derangement when committing the crime.

In the opinion of counsel, the defendant is in no case in a position to make himself understood or to understand argument, because he is impaired in his mental clarity through the loss of his memory and because he has completely lost the knowledge of previous events and of people of former acquaintance.

Since the expert establishment of his mental disorder which impairs the defendant in the full execution of his defense, makes proceedings against him inadmissible, the statement of the defendant that he thinks himself capable of being tried has no significance.

According to expert opinion, the impairment of the defendant cannot be removed within a measurable space of time. It is not sure whether treatment through Narco-Analysis, as proposed by the medical experts, will have the desired result. The defendant has refused to submit to this treatment only because he thinks of himself as capable of being tried and consequently not in need of such treatment. Furthermore, because he is opposed to any forcible influence upon the body, and finally, he is afraid of physical disturbances which would prevent him from participating in the trial if such method of treatment is used at this time. The proceedings would have to be dropped in case of an illness of long duration which excludes his fitness to be tried.

ad 1-b:

According to Article 12 of the Statutes, the Tribunal has the right to proceed against a defendant in absentia if

he, the defendant, cannot be located or if the Tribunal thinks it necessary, for other reasons, in the interests of justice. If the Tribunal, on the basis of convincing expert opinions, establishes that the defendant is not in a position to put up a pertinent defense and consequently decides not to proceed against him, proceedings in absentia, according to Article 12, could then only be carried on if this is in the interest of justice. It would not be compatible with objective justice, in case that actual proof of this fact is available, if the defendant is impeded by an impairment based upon health reasons, in personally standing up for his rights and in being present at the trial.

In proceedings which accuse the defendant of such serious crimes and possibly carry the death penalty, it would not be compatible with objective justice if he were personally denied the opportunity to look after his rights as stated in Article 16 of the Statutes. These rights provide for his self-defense. The possibility to “personally present evidence for one’s defense and to cross-examine each witness of the prosecution” is of such importance that any exclusion of such rights has to be considered an injustice toward the defendant. Proceedings in absentia can, under no circumstances, be accepted as a “fair trial.”

The same is true for the exclusion of the defendant from the rights which are granted him during the proceedings according to Article 24.

If the defendant is impaired in his ability to defend himself for the reasons of the expert opinions, and to the extent explained therein, then he is just as little in a position to give his Counsel the necessary information and to enable him to take care of the defense in his absence.

Since the Statutes establish the rights for the defense in this precise manner, it does not seem fair to withhold these from a defendant in a case when he is prevented from personally taking care of his defense during the proceedings. The rules in Article 12, regarding the proceedings against an absent defendant, have to be considered as an exception which should only be used against a defendant who tries to dodge in spite of his being in a position to be tried. The Defendant Hess has always been prepared to be tried in order to avoid proceedings in absentia, which he considers an injustice of the highest measure.

ad 1-c:

In case the Court should not agree with the explanations and should not consider the statements of the expert

opinion in the sense of the defense, and therefore come to a denial of the Application ad a, it seems necessary to obtain the super opinion because the opinions testify to the fact that the defendant is a psychopathic personality who suffers from hallucinations and still today shows, in the loss of memory, clear signs of a serious hysteria. If the Tribunal does not consider these sentiments alone as sufficient for the establishment of incapability to be tried, a more intensive examination would have to follow which would not be confined to an examination of only one or two hours on several days, but require a clinical observation.

The opinions, themselves, provide for another examination of the mental condition of the defendant, which seems to prove that the experts possibly have a “disturbance of the mental capacity” in mind if the condition of the defendant lasts and the Tribunal, against expectations, declares the defendant unfit to be tried and therewith incompetent under all circumstances.

/Signed/ von Rohrscheidt

Attorney-at-Law

Translator: Dr. H. v. V. Veith