Cross-examining Hermann Goering

Former United States Attorney and federal district judge Herbert Stern retired from the bench and returned to private practice in 1987. While on the bench he wrote the memoir Judgment In Berlin (1984), which was turned into a 1988 movie directed by Leo Penn. The movie starred Martin Sheen and Sean Penn. Morton Mintz reviewed the book for the Washington Post here and Professor Maynard Pirsig for the William Mitchell Law Review here. I found both the book and the movie to be gripping.

Skyhorse Publishing returned the book to print in 2021 and added the subtitle The True Story of a Plane Hijacking, a Cold War Trial, and the American Judge Who Fought for Justice. The Skyhorse page on the book is here. I have posted a thumbnail photo of Judge Stern on the home page.

During the 1990s Judge Stern wrote the five-volume Trying Cases To Win and taught highly regarded continuing legal education courses on trial skills for lawyers. Cross-examination was of course a key subject in both his five-volume set and his trial practice programs. When I attended his trial practice program in St. Paul, I was intrigued by his brief discussion of the cross-examination of Hermann Goering by Justice Robert Jackson at the Nuremberg trial. He said that it was reputedly the worst cross-examination in history.

I thought I would love to track down a Nuremberg trial transcript in a law library when I retired and draw my own conclusions. The Harvard Law School Library owns and manages approximately a million pages of documents relating to the trial and the subsequent trials of other accused Nazi war criminals before the United States Nuremberg Military Tribunals during the period 1945-49. I foresaw spending some time in Cambridge.

As one thing led to another, however, I discovered that the entire Nuremberg trial transcript had been digitized and posted online by the Avalon Project at Yale Law School along with a collection of Nuremberg-related documents. Goering’s testimony is published in volume 9. I didn’t have to wait until I retired.

I printed out Volume 9 and read it in 2002. I also read histories of the Nuremberg trial. I wrote up an account that took readers through Goering’s testimony. Then I called up John Hinderaker and asked him how he thought about cross-examination.

At the time John had tried more than 80 cases before juries. I knew he had his own way of thinking about cross-examination. He made four points that perfectly fit the problems with Jackson’s cross-examination of Goering. I took down his comments verbatim, incorporated them into what I had written, and applied them to Jackson’s cross-examination.

I submitted the article to Bench & Bar, the monthly publication of the Minnesota State Bar Association. Bench & Bar featured the article in its October 2002 issue at pages 22-26 under John’s and my byline with the unwieldy title “Guidelines for Cross-Examination: Lessons From the Cross-Examination of Hermann Goering.”

Bench & Bar editor Jud Haverkamp broke the article up into five sections with separate headings. Bench & Bar also posted the article online, but it has since disappeared. After watching the Nuremberg movies that TCM broadcast after Shoah this past Saturday, I miraculously located a copy of the Bench & Bar article in one of my disorganized files. I want to publish it section by section on Power Line as I have time to type it up over the next week or so with the thought that at least a few readers might find it of interest.

Immediately after the article was published I got a call from the prominent Minneapolis attorney Sam Kaplan. Sam wanted to know if I had come across anything on the late Sid Kaplan of Minneapolis’s Maslon law firm in my research. Following his service as head of the claims division within the Solicitor General’s office during World War II, Sid Kaplan had been recruited by Justice Jackson to work on the prosecutorial staff at the Nuremberg trial.

Indeed, I had come across him in my research. Telford Taylor was also on Jackson’s staff at the Nuremberg trial and the chief prosecutor in the ensuing Nuremberg trials. In his Anatomy of the Nuremberg Trials (1992), Taylor frequently referred to Sid Kaplan and his work on the case. In the last reference, Taylor cited him as one of “the brilliant lawyers whose exceptional services were behind the scenes.”

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