Reading a book on cross examination twenty years ago, I got interested in the Nuremberg trial. I followed up reading several books about the trial and then discovered that the whole trial transcript is accessible online. I read enough of the trial transcript to write an article about Supreme Court Justice Robert Jackson’s famously failed cross examination of Hermann Goering.
Could it really have been so bad? I wrote an article with John Hinderaker for Bench & Bar of Minnesota (the Minnesota State Bar Association magazine) taking a look at the cross examination. It was published in 2002 as “Lessons from the cross examination of Hermann Goering.”
Minnesota’s state and federal courts are now hosting the German Federal Bar/ABA exhibit Lawyers Without Rights, depicting the fate of Jewish Lawyers in Nazi Germany. Federal District Judge Michael Davis and his colleagues on the bench have taken a leadership role in making the exhibit the centerpiece of a month-long series of related events. The exhibit opened at the Federal Courts Building in Minneapolis and has now moved to the (state appellate courts) Minnesota Judicial Center in St. Paul, across the street from the Capitol. A list of sponsors is posted with the rest of the exhibit schedule here. Related events are listed on the poster for the exhibit.
Retired Minnesota Supreme Court Justice Paul Anderson put together a continuing legal education program on “A Minnesota Judge at Nuremberg.” The program was held yesterday at the Minnesota Judicial Center. It drew an overflow crowd.
As I learned from Justice Anderson, the Minnesota Judge at Nuremberg was the late Minnesota Supreme Court Justice William Christianson, on whom the Spencer Tracy character in Judgment at Nuremeberg was modeled. Justice Anderson presented materials deriving from Christianson’s service as a judge in the war crimes trials that followed the original Nuremberg trial. He also recruited Justice Christianson’s son, also named William Christianson, to present recollections of his three years as a child in Germany while his father sat as a judge in the war crimes trials. Minnesota Supreme Court Justice David Stras spoke briefly about his grandparents, I believe, who are Holocaust survivors, and about Justice Jackson. It was an interesting event.
Justice Anderson invited me to talk briefly about the original Nuremberg trial. These were my remarks, with links and video I didn’t have back when I worked on the Bench & Bar article. I’m posting the remarks in the hope that some readers may find them of interest. My interest in the subject is strictly amateur. If you find errors, I’d appreciate your letting me know ([email protected]).
Thanks to Justice Anderson for inviting me to participate in this terrific CLE program related to the Lessons From the Third Reich programming. It’s a subject close to my heart and a privilege to have the opportunity to talk with you about it.
I want to talk briefly about the first of the Nuremberg trials — the Nuremberg trial, as we all know it. The first trial is the famous trial, but it was followed by 12 more trials for which the first trial set the stage. Justice Anderson will be talking about the trials that followed.
How did the Nuremberg trial come about? Churchill thought that the Allies should skip the formalities and proceed to shooting the highest ranking Nazis, and the Soviet Union had candidates for shooting in mind, but the United States had other ideas. The United States favored a trial that would support the recognition of principles of international law prohibiting aggressive war and crimes against humanity. The United States prevailed, so a trial it was.
The London Charter of August 1945 established the tribunal as a military commission – the International Military Tribunal, as it was called. The London Charter is an interesting and important document in its own right, especially in light of the contemporary controversy about military commissions in the war on terror. The London Charter set forth the defendants’ rights at trial. Article 26, for example, addressed appeal rights. It’s short and sweet. Defendants had no right of appeal. They weren’t going to the DC Circuit if they were unhappy with the outcome of the case.
Each of the three Allied Powers and France appointed one judge and an alternate along with a chief prosecutor to present, evidence on the four charges brought against the highest ranking surviving Nazis. President Truman appointed Attorney General Francis Biddle to sit on the tribunal and Justice Robert Jackson to serve as chief prosecutor on behalf of the United States. The trial commenced in November 1945.
The most prominent of the 21 defendants at trial was Hermann Goering. After Hitler came to power in 1933 Goering was Hitler’s number two man and designated successor. Hitler and Himmler had committed suicide. Martin Bormann appeared to have survived the war and was indicted, but he was never found. If there was a stand-in for Hitler at Nuremberg it was Goering.
And Jackson was one of the most prominent lawyers in the United States. He had had a distinguished career as an attorney in private practice and in the Roosevelt administration, culminating in his service as Roosevelt’s Attorney General in 1940 and his appointment to the Supreme Court by Roosevelt in 1941. At the time of the trial, Jackson was a sitting Supreme Court justice.
The Nuremberg charges were novel – Minneapolis’s own Sid Kaplan enters here — the brilliant Sid Kaplan, as Telford Taylor calls him. He helped craft the indictment. The four counts of the indictment were waging aggressive war, crimes against peace, crimes against humanity and conspiracy to commit the alleged crimes.
The trial commenced in November 1945 with Justice Jackson’s magisterial opening statement. Jackson’s opening statement elevated the proceedings and made an impression in the court and beyond, becoming a page-one story in the newspapers back home.
The trial then proceeded with months of testimonial and documentary evidence establishing the charged crimes. It was something of a grind. Especially after Jackson’s opening, participants and spectators looked forward to the drama inherent in the confrontation of the prosecution with the defense case and the testimony of the defendants, Goering most prominently. So when Jackson rose to cross examine Goering in March 1946, this was the moment they had all been waiting for.
Reading a book on cross examination by former federal judge Herbert Stern, I got interested in the subject of the Nuremberg trial. In the book Judge Stern castigates Jackson’s cross examination of Goering as the worst cross examination of all time, going so far as to say that Jackson managed to make Goering a sympathetic figure.
I started reading popular historical accounts of the Nuremberg trial — by Joseph Persico, by Robert Conot (who lost both his parents in the Holocaust), and others. I found they all concurred. Goering had gotten the better of Jackson at trial.
Could Jackson’s cross really have been that bad? He won the case! Goering was convicted on all four counts of the indictment. He was sentenced to death by hanging. In its own way, the story of the world’s worst cross examination has a happy ending, – even if Goering cheated the hangman. Goering committed suicide by means of a cyanide capsule on the eve of his scheduled execution. That detracts from the catharsis, but it wasn’t Jackson’s fault.
In any event, I wanted to take a look for myself at Jackson’s cross examination and thought it might give me something to look forward to in my retirement. I thought I would track down the Nuremberg trial transcript somewhere in a law library and spend my time reading and writing about it.
Looking around on the Internet, however, I discovered that the trial transcript – all 22 volumes of it, and all 10 volumes of supplementary material – all of it is available online at the Yale University’s Avalon Project site. Volume 9 of the trial transcript has both the direct and cross examination of Goering – just what I was looking for. I downloaded it and took a look with my own eyes.
I could see why Goering’s performance on direct examination had impressed observers. Over two and a half days he gave a compelling personal account of his involvement with Hitler going back to 1922. He expounded on the theory and practice of National Socialism according to its practitioners. He needed to be dealt with.
So what happened when Jackson got up to undertake his cross examination? I had another Eureka moment preparing for this talk. I found that film from the cross examination has been posted on YouTube. One clip compiles six minutes of highlights. Now you can take a look with your own eyes.
That gives you a flavor. I summarize Jackson’s cross examination of Goering and give representative excerpts in the Bench & Bar article. I think it’s fair to say that the common judgment on Jackson’s cross has it right, but second guessing is easy and not entirely fair. Robert Conot, for example, presents a detailed, devastating assessment of Jackson’s performance and then adds: “It was, in truth, the inability of the prosecution to demonstrate the dynamic forces in the Third Reich that was the great failing of the trial.” Here we push up against the limits of litigation versus the domain of history.
But I want to emphasize that it’s not just hindsight that finds fault with Jackson. The judges, the trial participants and courtroom observers all deemed Jackson’s performance a disaster at the time.
What went wrong? Three points:
First. At several places – such as his in his opening with Goering – Jackson’s examination lacks any obvious point. It’s almost unbelievable. In the 1992 book Anatomy of the Nuremberg Trials, Jackson’s trial assistant and successor as chief prosecutor — Telford Taylor — expressed mystification at what Jackson thought he was doing. Taylor offers an answer, but the question is more obvious than the answer, even in Taylor’s telling. In responding to Jackson’s questions on the Nazi Leadership Principle, for example, Goering found the occasion to quote President Roosevelt in support of his explanation. He omitted only John Maynard Keynes’s critique of the Versailles Treaty.
Second. Jackson knew he should be in control of the witness on cross, but he didn’t necessarily know how to do it. Goering more or less had his way with him. It drove Jackson to seek the assistance of the tribunal in exerting control over Goering. When the tribunal refused to do so, Jackson flew into a rage that carried over from the end of day two of the cross examination to the beginning of his conclusion on day three. In his book Scorpions, Noah Feldman uses the word “unglued” to describe Jackson’s response to the judges’ refusal to help him with Goering, and I think that’s about the size of it.
Third. Jackson hadn’t really mastered key pieces of evidence. Among the evidence that he had in hand and actually used was perhaps the guiltiest document in history: Goering’s letter of July 31, 1941, ordering Reinhold Heydrich to commence preparations for “the Final Solution of the Jewish question” — the sickening Nazi euphemism for what became the Holocaust. Goering quibbled with Jackson over the meaning of one of the words in the letter and Jackson left it at that. It is not apparent that Jackson knew what he held in his hand.
This is where I come out: My judgment is that, given the prominence of counsel, the character of the witness, and the evidence counsel had available to work with, and discounting for the difficulty of cross examining a witness in a foreign language, Jackson’s cross examination of Goering deserves to be ranked among the worst of all time. But I may be wrong and I hope you’ll take a look for yourself.