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.