30 Nov. 45

We think he should be tried, not in absentia, but that this trial should proceed.

THE TRIBUNAL (Mr. Biddle): Isn't Hess asserting that he wants to be tried?

MR. JUSTICE JACKSON: Well, I don't know about that. He has been interrogated and interrogated by us, interrogated by his co-defendants, and I wouldn't attempt to say what he would now say he wants. I haven't observed that it is causing him any great distress. Frankly, I doubt very much if he would like to be absent, but I wouldn't attempt to speak for him.

THE PRESIDENT: Does M. Dubost wish to add anything?

[M. Dubost indicated that he did not.]

DR. VON ROHRSCHEIDT: May I just say a few words to the Tribunal to explain my point of view once more?

Firstly, it is a fact that the Defendant Hess, according to the unanimous reports of the doctors, is not insane, that his mental faculties are not impaired.

Secondly, as all reports agree, the Defendant Hess is suffering from amnesia. The reports vary on whether this amnesia is founded on a pathological, a psychogenic, or hysterical basis, but they agree that it exists as an unsound mental condition. The defendant is therefore, not insane, but has a mental defect. Legally, therefore, he cannot claim that he is not to be held responsible for his actions; for at the time when the actions with which he is charged were committed, he was certainly not insane, and consequently can be held responsible. It is a different question, however, at least according to German law, whether the defendant is at this moment in a position to follow the proceedings of a trial, that is, whether he is fit to plead. And on the basis of the medical reports which I quoted, I think this question should be answered negatively. He is not fit to plead.

I admit that doubts are possible, that the Tribunal may have doubts whether the answers of the experts are sufficient to establish that the defendant's ability to plead is actually impaired, that he cannot, as the Tribunal perhaps deliberately phrased it, defend himself adequately. I think that perhaps the emphasis should be on this last point. It is my opinion that the amnesia--this loss of memory confirmed by all experts--is such that the defendant is unable to make an adequate defense. It may be, of course, that he can defend himself on one point or another, that he can raise objections on some points, and that he may be able to follow the proceedings as such. But his defense could not be termed adequate