c. Selection from the Argumentation of the Defense

_EXTRACT FROM THE FINAL PLEA FOR DEFENDANT GEBHARDT_[74]

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_Phlegmon Experiments_

In the course of the hearing of the evidence, the prosecution submitted documents and interrogated witnesses with the intention of proving that apart from other medical experiments, experiments were also carried out on the treatment of phlegmon. In the indictment itself these experiments, which were carried out at Dachau, are not mentioned. In view of Article IV of the Ordinance of Military Government for Germany, which expressly states that the indictment should list the counts in sufficient detail, it must be assumed that in this case a properly made charge does not exist.

As far as the participation of the defendant Gebhardt is concerned, the documents submitted by the prosecution show by themselves that he had nothing to do with the execution of these experiments. It was only later that he learned of the experiments carried out at Dachau, as unequivocally proved by the letter of Reich Physician SS Dr. Grawitz to Reich Leader SS Himmler of 29 August 1942, referring to the biochemical treatment of sepsis, which was submitted by the prosecution as NO-409, Prosecution Exhibit 249. The defendant Gebhardt learned of these experiments on 3 September 1942, on the occasion of the visit of Reich Physician SS Dr. Grawitz to Ravensbrueck in connection with the sulfanilamide experiments in this camp. The defendant Gebhardt wrote on the margin of this document the remark “seen and read”. This remark alone shows that he could only have learned subsequently of these experiments, and especially that he did not approve of them. If it had been the contrary, he certainly would have made some other notation on the document, as for instance, “agreed”, or else he would have shown his approval in a similar way. On the witness stand the defendant Gebhardt explained in detail to the Tribunal what his opinion of these experiments was. These experiments demonstrate unequivocally that they were deliberately initiated in ignorance of, and in contradiction to, the recognized rules of orthodox medicine. As also demonstrated by the evidence the Reich Leader SS Himmler did not conform to orthodox medicine but wanted to promote independently one patent solution out of a variety of suggestions and opinions. Nearest to his conception, beside his inclination towards theories of biological selection, were biochemistry, homeopathy, and mesmerism, i. e., those schools of medicine which, contrary to the theories of orthodox medicine do not combat certain symptoms of a disease but by means of the so-called stimulation theory want to bring about a change of the general physical disposition. The defendant Gebhardt, when on the witness stand, clearly explained this attitude of Himmler, which among other things resulted in rejection of any criticism by orthodox medicine, relying exclusively on his biochemical experts.

The evidence, however, has further shown that after having learned of the letter of Reich Physician SS Grawitz of 29 August 1942 (_NO-409, Pros. Ex. 249_) and with the object of convincing Himmler of the futility of these experiments, the defendant Gebhardt himself performed experiments on patients with these biochemical remedies in his clinic at Hohenlychen, and that he succeeded in convincing Himmler of the inefficacy of these remedies. In this connection I refer to the statements of the defendant Gebhardt himself and to the affidavits of Dr. Jaedicke and Dr. Brunner, which I submitted to the Tribunal.

When examining the legal conclusions which can be drawn from the facts presented above, we may arrive at the following results:

The defendant Gebhardt did not commit any act which had any causative connection with these experiments. He learned about these experiments only after the event, and then he did everything in his power to prevent further experiments of this kind. The prosecution was not able to produce evidence that such experiments had been carried out at all after 3 September 1942. All this proves that in view of the missing causal connection and absence of premeditation there cannot be any question of criminal action on the part of the defendant Gebhardt. It is acknowledged in the criminal law of all civilized nations that knowledge acquired after events is not sufficient to prove the existence of a criminal action.

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