A large, ascetic wall clock placed above the defendant's bench showed exactly 4 p.m. The working day on 30 November was coming to an end. The President of the International War Crimes Tribunal, Sir Geoffrey Lawrence, ordered the quarter guard to withdraw all the defendants except Rudolf Hess. They obediently headed for the doors.
The court was to consider a motion by Hess’ defence counsel for the sanity of his client, who had been acting like a bobblehead in public for weeks. He was smiling quietly and complained about loss of memory. As it turned out, Hess had prepared an excellent show for the audience in Courtroom 600. When the other defendants learned about everything afterwards, they were greatly disappointed that they missed such a vivid performance.
Except for Russians
Dr. Günther von Rohrscheidt, counsel for Rudolf Hess, didn't have much hope for the success of the former Deputy Fuhrer of the ill-fated Third Reich, who had flown solo to Scotland in an attempt to negotiate peace with the United Kingdom in 1941 without Hitler's knowledge. The day before the session, the doctor confessed to the journalists that the Tribunal would hardly allow Hess to avoid trial on the pretext of insanity. But this was a chance for the defence to postpone the proceedings until the defendant's full recovery, and there were four medical reports on the mental state of Rudolf Hess.
“As the defendant's counsel I consider it my duty, after studying the reports of these experts, which, unfortunately, I could not do as carefully as I desired since time was short, and in view of my knowledge of the defendant and my experience in almost daily contact with him, to state my opinion that the defendant Hess is not in a position to plead in the case against him”, Counsel von Rohrscheidt began his speech.
And then suddenly he added:
“I should like to say, at the request of the defendant, that he himself considers he is fit to plead and would himself like to inform the Court to that effect”.
The President of the Tribunal, Lord Justice Lawrence, also examined the reports of the experts.
“I want to ask you one question”, he addressed the defence counsel. “Is it not consistent with all the medical opinions that the defendant is capable of understanding the course of the proceedings, and that the only defect from which he is suffering is forgetfulness about what happened before he flew to England?"
Hess had flown to the UK hoping to work out a peace deal, under the mistaken impression that he had found a potential ally in the Duke of Hamilton. But he was immediately arrested after landing in the UK, and spent the rest of his life in prison.
Rohrscheidt attempted to impose his interpretation of expert opinions:
“In my view, this question is answered by the experts to the effect that the defendant is incapable of adequately defending himself, of rejecting the testimony of a witness and of comprehending evidence submitted. That, as I see it, is the conclusion of all the experts' reports with the exception of the one signed by the Russians”.
Roman Rudenko, chief prosecutor for the USSR, found fault with this logic, rejecting it when he voiced the unanimous opinion of the prosecutors of all four powers:
“I consider that these particulars of the past, which Hess is unable to remember, would not unduly interest the Tribunal. The most important point is that emphasised by the experts in their decision, a point which they themselves never doubted and which, incidentally, was never doubted by Hess' defence counsel, namely – that Hess is sane; and in that case, Hess comes under the jurisdiction of the International Tribunal. On the basis of these facts, I consider that the application of the Defence should be denied as being unsubstantiated.”
So, Hess is sane. But is it possible to judge a person who doesn't remember anything? French judge Henri Donnedieu de Vabres seemed to immediately suspect Hess of cheating.
“I would like to know in what period the real amnesia of Hess applies,” the judge asked the prosecutors. “He pretends to have forgotten facts which occurred more than 15 days ago. It may be simulation or, as they say in the report, it may be real simulation. I would like to know if according to the reports Hess has really lost his memory of facts which are referred to in the Indictment, facts which pertain to the past covered by the Indictment.”
The French judge was right on point: Hesse has long since learned to benefit from his amnesia.
“He is in the volunteer class with his amnesia,” Robert Jackson, chief prosecutor for the United States, responded. “When he was in England, as the reports show, he is reported to have made the statement that his earlier amnesia was simulated. He came out of this state during a period in England, and went back into it. It is now highly selective. That is to say, you can't be sure what Hess will remember and what he will not remember.”
“Here I Remember Something, Nothing There”
As anticipated by the defence counsel, the insanity plea trice failed. It turned out that medical experts offered Defendant Hess to undergo medical treatment but he'd refused. Lawyer Rohrscheidt explained the reason:
“The medical reports accuse the defendant of deliberately refusing to undergo such medical treatment. The defendant himself, however, tells me that, on the contrary, he would readily undergo treatment but that he refuses the suggested cure because he believes that he is completely sound and fit to plead, that therefore this cure is unnecessary <…>.”
The argument sounded weak, and the defence counsel had to dig deeper. It turned out that Hess was afraid that the doctors would deprive him of his mental health.
“The defendant's refusal to undergo the narco-synthesis treatment suggested by the doctors - that is not a question of truculence,” Rohrscheidt continued. “He refused it only because, as he assured me, he was afraid that the intravenous injections at this particular moment might incapacitate him in his weakened condition and make it impossible for him to follow the proceedings.”
Rohrscheidt made one last attempt to get the court to take his side:
“The defendant also told me that he has an abhorrence of such treatments. I know that to be true, because in the unhappy times of the National Socialist regime, he was always in favour of natural remedies. He even founded the Rudolf Hess Hospital in Dresden, which uses natural and not medical remedies.”
Justice Robert Jackson wasn't impressed with this excuse:
“The argument illustrates the selectivity of the memory of which I spoke. Hess apparently can inform his counsel about his attitude toward this particular matter during the National Socialist regime. His counsel is able to tell us how he felt about medical things during the National Socialist regime, but when we ask him about anything in which he participated that might have a criminal aspect, the memory becomes bad.”
The defence counsel tried to justify himself by saying that he had learnt about the hospital not from Hess, that he had heard about it before. But it was too late. The prosecution succeeded in dismissing the relevance of the four medical reports.
“So even if we assume, for the purpose of argument, that his amnesia is complete, and that he remembers nothing that occurred before the indictment though now understanding the proceedings, you think he should be tried?”, American Judge Francis Biddle asked the prosecutors.
“I submit he should be tried”, Deputy Chief British Prosecutor Sir David Maxwell-Fyfe replied. “If I might compare a very simple case within my experience, and I am sure within the experience of members of the Court where this has arisen scores of times in English courts, after a motor accident when a man is charged with manslaughter or doing grievous bodily harm, he is often in the position of saying, “Because of the accident my memory is not good or fails as to the acts charged. That should not, and no one has ever suggested that it could, be a matter of relief from criminal responsibility.”
The Court's deliberations took about an hour and a half. All this time, Rudolf Hess, sitting alone on the defendants’ bench, remained quiet. Only once, at the very beginning of his defence counsel's speech, he wrote a message for Rohrscheidt and asked the guard to hand it over. The guard refused.
When the parties had exhausted their arguments and there was silence for a second in the courtroom, Hess suddenly stood up and asked for the floor. None of the defendants had been allowed to do so before. They were warned that they would be able to speak out during cross-examinations, but not during the deliberations on motions. And yet the Court allowed him to speak. Rudolf Hess was the first defendant to publicly speak in the courtroom at the Nuremberg trials.
“I wish to say the following: in order to forestall the possibility of my being pronounced incapable of pleading, in spite of my willingness to take part in the proceedings and to hear the verdict alongside my comrades,” he said. “I would like to make the following declaration before the Tribunal, although, originally, I intended to make it during a later stage of the trial:
Henceforth my memory will again respond to the outside world. The reasons for simulating loss of memory were of a tactical nature. Only my ability to concentrate is, in fact, somewhat reduced. But my capacity to follow the trial, to defend myself, to put questions to witnesses, or to answer questions myself is not affected thereby.
I emphasise that I bear full responsibility for everything that I did, signed or co-signed. My fundamental attitude is that the Tribunal is not competent, is not affected by the statement I have just made. I also simulated loss of memory in consultations with my officially appointed defence counsel. He has, therefore, represented it in good faith.
This episode in the book “The Final Reckoning – Nuremberg Diaries” was described by an eyewitness to the events, a notable Soviet writer, Boris Polevoi, who said: “Hess stands up, biting his lips and, as he ran his hand through his thinning hair, waits for the microphone to be set up before him…”
Rudolf Hess’s statement caused a veritable sensation.
“Our Western colleagues rush off their seats and, pushing each other, head to the phones and teletypes to send this scoop number one”, Boris Polevoi continues. “We have no reason to hurry. For us, it's just a stroke that shows the morality of the defendants.”
“-What abomination, what petty creatures after all!
-And what would you expect from the fascists? From these bastards!... These rabbles!.. These monsters of the human race,” Vishnevsky mutters through clenched teeth.
This was the end of the session on 30 November. The next day, on Saturday, President Lord Justice Sir Geoffrey Lawrence announced the Court's decision: Defendant Hess was capable of standing trial, and the motion of the Counsel for the Defence was, therefore, denied.
Spectacle on Envy of Göring
“When I saw Dr. Rohrscheidt in the hall later,” Gustave Gilbert, an American Military Chief Psychologist who worked with the defendants, in his book “The Nuremberg Diary”, wrote. “He was completely perplexed, not knowing whether his client was bluffing before or in court. When Kelley, and then I, saw Hess in his cell later, his memory was perfectly in order and he could answer questions about his imprisonment, his flight to England, his role in the Party and even his youth.
The next day, before court started, American psychologists visited a few of the defendants in the cell block to tell them about Hess’s sudden restoration of memory. “Göring was at first incredulous,” Gilbert recalled. “But then roared with delight at what he took to be Hess’s joke on the court and the psychiatrists. He could not be sure whether the restoration of memory was genuine… Up in the dock, Göring asked Hess if he had really been faking, and whether he really remembered all the details about his flight to England. Hess related the details with relish, boasting about his skill in making the take-off, hedge-hopping, flying by instruments, and landing by parachute. “At what height did you jump?” Hess boasted that it was pretty low – about 200 metres. Göring gradually stopped enjoying the joke of Hess’s “amnesia-faking”, as he looked around the courtroom and saw that Hess was now the centre of attention. Hess was enjoying it immensely.”
Later on, Günther von Rorschheidt filed several more motions for Hess' medical examination, but the court consistently rejected them. In the end, Hess was offended by his defence counsel for persistently trying to make him look insane. And as of 5 February 1946, Hitler's “all-time favourite” was defended by another counsel, Alfred Seidl, who already had one client at the Nuremberg Trials – Hans Frank. Incidentally, the lawyer Frank almost became a defendant and defence attorney in one: Alfred Rosenberg wanted to “hire” him, but the Tribunal did not allow it.
In a way, Hesse owes his long life to Seidl. If it weren't for the diligence of the new counsel, Hess would probably have been hanging on the gallows rather than being sent to Spandau Prison in Berlin. Seidl tried hard for his client not only out of professionalism but also for ideological reasons. A supporter of Nazism in his youth, he re-entered politics in West Germany after the war and a prominent figure among revisionists. Seidl remained Hess's lawyer until the death of the latter in 1987.
By Julia Ignatieva
Medical Experts’ Report: Sane, Conscious Exaggeration of Memory Loss.
The medical report signed by the American-French Delegation, dated 20 November 1945: “We find as a result of our examinations and investigations, that Rudolf Hess is suffering from hysteria characterised in part by loss of memory. The loss of memory is such that it will not interfere with his comprehension of the proceedings, but it will interfere with his response to questions relating to his past and will interfere with his undertaking his defence.”
The medical report signed by members of the Soviet Delegation and by Professor Delay of Paris, dated 16 November 1945: “Psychologically, Hess is in a state of clear consciousness; knows that he is in prison at Nuremberg under indictment as a war criminal; has read, and, according to his own words, is acquainted with the charges against him. He answers questions rapidly and to the point. His speech is coherent, his thoughts formed with precision and correctness and they are accompanied by sufficient emotionally expressive movements. Also, there is no kind of evidence of paralogism. It should also be noted here, that the present psychological examination, which was conducted by Lieutenant Gilbert, PhD, bears out the testimony that the intelligence of Hess is normal and in some instances above the average. His movements are natural and not forced. <…> And therefore, the delusions cannot be considered as manifestations of a schizophrenic paranoia, and must be recognised as… the psychologically comprehensible reaction of an unstable (psychologically) personality to the situation (the failure of his mission, arrest, and incarceration). Such an interpretation of the delirious statements of Hess in England is bespoken by their disappearance, appearance, and repeated disappearance depending on external circumstances which affected the mental state of Hess. <…> The loss of memory by Hess is not the result of some kind of mental disease but represents hysterical amnesia, the basis of which is a subconscious inclination toward self-defence as well as a deliberate and conscious tendency toward it. Such behaviour often terminates when the hysterical person is faced with an unavoidable necessity of conducting himself correctly. Therefore, the amnesia of Hess may end upon his being brought to Trial.”
Psychological evaluation by psychologist Gustave Gilbert: “All of the foregoing (Hess’s behaviour) gives a clue to his hysterical reaction to an idea which was catastrophic to his ego – rejected as insane by the Fuhrer, he seeks refuge in amnesia, then snaps out of it to avoid the same rejection by his old friends."