Justice Jackson cross-examines Hermann Goering

John Hinderaker and I wrote this article for Bench & Bar of Minnesota, the monthly publication of the Minnesota State Bar Association. It was published in the October 2002 issue. I provided background on it here yesterday. Working on this article was a labor of love. I hoped it would be both interesting and useful. I did my best to get the facts straight and provide examples within the space allowed. There were no YouTube videos of the cross to help me along at the time. My judgment here reflects the consensus of all those who have written on the subject. Nevertheless, reasonable minds may disagree. Twenty years later, I may disagree myself. Having said that, I hope a few readers find this of interest.

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Trial commenced on November 20, 1945, with the appointed British judge, Sir Geoffrey Lawrence, wielding the gavel to call the proceedings to order. “This trial,” Lawrence observed, “which is now to begin, is unique in the annals of jurisprudence.”

The trial in question, conducted under the auspices of the International Military Tribunal that convened in Nuremberg in the fall of 1945 – the Nuremberg trial – was unprecedented in important respects. Both the prosecutors who litigated the charges and the judges who sat in judgment represented the victorious Allied Powers. The tribunal itself was created and operated under terms of an agreement among the Allies: the London Charter of August 8, 1945. That same agreement formed the basis for the indictment, which charged the individual defendants with four counts – waging a war of aggression in Violation of treaties and assurances, conspiracy to do so, commission of war crimes, and commission of crimes against humanity, “whether or not in violation of the domestic law of the country where perpetrated.” The 24 defendants included the ranking survivors of the German military and Nazi political establishments; Winston Churchill had proposed, not unreasonably, that they be summarily shot.

Although the trial has provided much material for legal analysis, the event that is perhaps most instructive for lawyers today is the cross-examination of Reich Marshal Hermann Goering by former Attorney General and then-Supreme Court Justice Robert H. Jackson. No event at trial was more intensely anticipated than the cross-examination of Goering, and none fell as flat. The contemporaneous accounts, subsequent recollections, and memoirs of trial observers as well as distinguished trial participants such as Jackson’s American colleague, then-Colonel Telford Taylor, unanimously judge Jackson’s cross-examination of Goering to have been a fiasco. Historical accounts of the Nuremberg trial by Robert Conot, Joseph Persico, and others corroborate this judgment. Jackson’s cross-examination of Goering has become notorious for its ineptitude.

Can the cross-examination have been as bad as the literature asserts? If so, what lessons can we derive from Justice Jackson’s experience? These are the questions we seek to address.

JUSTICE JACKSON’S ROLE

President Truman appointed Justice Jackson to serve as the chief United States prosecutor and former Attorney General Francis Biddle to sit as the tribunal’s United States judge. Jackson had earlier served by appointment of President Truman in the negotiations that led to the adoption of the London Charter and the authorization of the Nuremberg proceedings.

In the negotiations leading to the London Charter, Jackson and his British counterpart had succeeded in imposing the traditional Anglo-American trial format on the proceedings, rather than Continental or Soviet-style alternatives. The single most notable departure from the traditional Anglo-American format was that the judges sat both as judge and jury, with all questions of guilt and punishment having been committed to them. Despite the novelty of the proceedings, the trial itself followed a traditional format.

At trial, Jackson spoke first, and his magisterial opening could only have exceeded the expectations of those in attendance for high drama and stirring oratory. “May it please your honors,” Jackson began, “the privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn have been so calculated, so malignant, and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated.”

Jackson observed that the tribunal would not be asked to convict the defendants based on the testimony of their foes. Rather, Jackson said, “there is no count in the indictment that cannot be proved by books and records.” Given the German passion for documentation and organization, Jackson suggested, the prosecutors would introduce voluminous documentary evidence to support the charges. Indeed, much of the case presented by Jackson to the tribunal consisted of documentary evidence, including documentary films (some compiled from film taken by the Germans themselves) on the Nazi concentration camps.

Although the prosecution case was punctuated by occasional moments of great impact, such as the films and the testimony of witnesses who had been victimized by the Nazis, its emphasis on documentary proof deprived it of much drama. Courtroom observers therefore looked forward to the time when the defendants would testify on their own behalf and confront their accusers. The prosecution closed its case on March 4, 1946, and, after substantial procedural wrangling, the defense opened with Goering’s case.

GOERING TAKES THE STAND

The courtroom was packed for Goering’s testimony. He took the stand with the attitude of an unrepentant Nazi. His direct examination reviewed his distinguished military service during the First World War and his fateful meeting with Hitler in 1922. Goering eloquently recalled the bond he had formed with Hitler based on their mutual opposition to the Versailles Treaty.

Goering expounded at length on the theory and practice of Nazism according to its practitioners. He proclaimed that he had “done everything possible to strengthen the National Socialist movement, to increase it, and have worked unceasingly to bring it to power under all circumstances and as the one and only authority…”

He testified on direct for two-and-a-half days, avowing responsibility for the planning and execution of Germany’s aggressions up to the invasion of the Soviet Union, which he opposed. He also acknowledged responsibility for other incriminating actions such as the punishments imposed on German Jews after the Nazi looting of property owned by Jews during Kristallnacht in 1938. As to those actions for which he acknowledged responsibility he also articulated historical justification. He denied knowledge of and responsibility for a few of the alleged war crimes, most notably the systematic extermination of the Jews in Nazi concentration camps.

THE CROSS-EXAMINATION BEGINS

Just after noon on March 18 Jackson rose to cross-examine Goering. Jackson began by eliciting Goering’s ready admission that Goering was the world’s foremost authority on Nazism:

Jackson: You are perhaps aware that you are the only man living who can expound to us the true workings of the Nazi party and the inner workings of its leadership?

Goering: I am perfectly aware of that.

Jackson then proceeded to ask a broad range of questions regarding Nazi policies and practices. These questions addressed the elimination of democratic government and its substitution by Hitler’s dictatorship, the meaning of the “Leadership Principle,” the prudence of the German invasion of the Soviet Union, the initial establishment of concentration camps in 1933 and 1934, the purge of Hitler’s internal Nazi opposition on Goering’s instigation and direction in 1934, the Reichstag fire, the Treaty of Versailles, the German annexation of Austria, and other subjects.

Representative of the questions Jackson asked in this sequence is the following:

Jackson: Now, was this Leadership Principle supported and adopted by you in Germany because you believed that no people are capable of self government, or because you believed that some may be, not the German people; or that no matter whether some of us are capable of using our own system, it should not be allowed in Germany?

Goering ran rings around Jackson, prefacing his response by saying, “I beg your pardon, I did not quite understand the question, but I could perhaps answer it as follows…”

To get the flavor of Goering’s side of the cross-examination, it is worth quoting the remainder of Goering’s response in full:

Goering: I consider the Leadership Principle necessary because the system which previously existed, and which we called parliamentary or democratic, had brought Germany to the verge of ruin. I might perhaps in this connection remind you that your own President Roosevelt, as far as I can recall I do not want to quote it word for word declared, “Certain peoples in Europe have forsaken democracy, not because they did not wish for democracy as such, but because democracy had brought forth men who were too weak to give their people work and bread, and to satisfy them. For this reason the peoples have abandoned this system and the men belonging to it.” There is much truth in that statement. This system had brought ruin by mismanagement and according to my own opinion, only an organization made up of a strong, clearly defined leadership hierarchy could restore order again. But, let it be understood, not against the will of the people, having in the course of time, and by means of a series of elections, grown stronger and stronger, had expressed their wish to entrust their destiny to the National Socialist Leadership.

It is difficult to find a theme in Jackson’s cross-examination or even to understand what he was attempting to accomplish beyond laying the ground for arguments concerning the conspiracy count of the indictment. Goering made him appear foolish. Having predicated his examination on the assertion that no one alive knew more than Goering about the Nazi party, Jackson had little ground to stand on in following up Goering’s pugnacious answers to his questions.

Completely unable to control Goering or to score a relevant point, Jackson sought to have the tribunal confine Goering to answering his questions “yes” or “no” rather than with Goering’s accustomed speeches. Given speeches like Goering’s answer quoted above, Jackson’s desire to limit Goering’s answers was understandable. But Jackson even sought to restrict Goering’s answers to Jackson’s own compound questions. In any event, the tribunal refused Jackson’s request to order Goering to restrict his answers, and its refusal to intervene on Jackson’s behalf further flustered Jackson. He contested the issue pointlessly with the tribunal.

CROSS-EXAMINATION DAY TWO

The following day Goering’s testimony was interrupted by the presentation of Goering’s final defense witness. Jackson was able to resume his cross-examination only briefly at the end of the day, and with a notable lack of success. Although he tied his questions to documents reflecting Goering’s participation in meetings Jackson suggested were Reich Defense Council conferences Goering had denied attending, Goering successfully deflected Jackson’s questions.

The day ended again on a downbeat note. Jackson turned to another document and directed the day’s final line of questions to Germany’s secret preparations for war. Jackson’s intended line of questions was undermined by the mistranslation of a key word in the document on which Jackson relied, a mistranslation seized on by Goering. Goering added that he did not recall the United States publicizing its mobilization plans. Jackson fulminated at length and implored the tribunal to direct the witness to restrict his answers: “Well, I respectfully submit to the tribunal that this witness is not being responsive … It is perfectly futile if we cannot have responsive answers to our questions.”

WORST CROSS-EXAMINATION IN HISTORY?

On March 20 Jackson resumed the tirade with which he had concluded the previous day. The tribunal again denied his request to restrict Goering’s answers during cross-examination to affirmative or negative responses, pleading with him to ignore Goering’s irrelevant interjection of the day before. Jackson asserted that the tribunal was allowing the trial to get out of hand. Judge Lawrence, the president of the tribunal, responded that he “had never heard it suggested that the Counsel for the prosecution have to answer every irrelevant answer made in cross-examination.” Jackson refused to relent, protesting that the United States was being denied its right of cross-examination and that the tribunal was ceding control of the examination to Goering

Jackson kept up his argument until his ultimate acceptance of the tribunal’s ruling transformed a routine evidentiary ruling into a bitter personal defeat. He cannot have been proud of his performance. In his 1947 book on the trial, Jackson silently omitted from his selection of trial excerpts his exchanges with the tribunal over its refusal to restrict Goering’s answers.

Jackson wasted the beginning of the third day on this fruitless exchange, but he had come prepared with his strongest hand. At last Jackson turned to the Nazi treatment of the Jews and Goering’s issuance of crucial anti-Jewish edicts dating back to the Nuremberg Laws on Citizenship and Race promulgated by the Reichstag over Goering’s signature in September 1935. Goering’s numerous subsequent edicts had furthered the anti-Semitic policies that ultimately led to the extinction of German Jewry. During this part of the examination Jackson effectively used those decrees signed by Goering himself to establish his participation in and responsibility for the acts in question.

The culmination of this series of questions addressed Goering’s letter of July 31, 1941, to Reinhard Heydrich, chief of the Reich Security Main Office, ordering him to prepare a plan for the “final solution of the Jewish question.” Goering’s letter is the first such document to refer in writing to the “final solution.” Goering countered deceptively, referring to a similarly word earlier in the letter, that the German word in issue had been incorrectly translated as “final solution.” Rather, according to Goering, the correct translation was “total solution” and referred only to “the emigration of the Jews.” Holding in his hands what must be one of the most incriminating documents known to history, Jackson did not pursue the issue.

Jackson moved on to a series of questions regarding Kristallnacht, the November 1938 Nazi riots that destroyed Jewish shops and synagogues throughout Germany, purportedly in response to the assassination of an embassy functionary in Paris by a German Jewish emigrant. Here Jackson effectively used the stenographic minutes of a meeting over which Goering presided immediately after the riots to demonstrate Goering’s revelry over the Nazi expropriation of Jewish property and glee in the imposition of related financial penalties: “The pigs will not commit a second murder so quickly. I would not like to be a Jew in Germany.”

Jackson declined to end his examination there and concluded to no substantial effect. He raised a variety of unconnected and relatively anticlimactic issues. Jackson therefore buried his line of questions regarding Goering’s edicts on Jews in the middle of his examination. Among the issues Jackson touched on in his concluding line of questions were Goering’s theft of art, the Luftwaffe bombing of Warsaw, and the German execution of Allied fliers.

The conclusion of the cross-examination confirmed the impression of observers, decidedly including the tribunal judges, that Goering had generally gotten the better of Jackson. Even making allowance for the difficulty of cross-examining a witness in a foreign language, it is difficult to be charitable in evaluating Jackson’s performance. Given the occasion, the prominence of counsel, the character of the witness, and the evidence counsel had available to work with, Jackson’s generally ineffectual cross-examination deserves to be ranked among the worst of all time.

GUIDELINES FOR SUCCESSFUL CROSS-EXAMINATION

Any lawyer familiar with the traditional “rules'” or “commandments” of cross-examination can catalogue the technical mistakes that contributed to Jackson’s difficulties in his cross-examination of Goering. We have no interest in doing so here. Rather, we wish to articulate a few basic guidelines of our own for the practice of successful cross-examination that we have found helpful, each of which we think sheds some light on Jackson’s difficulties with Goering at trial. We use four nautical metaphors to frame our guidelines.

First, the beginning and ending of the voyage should be made memorable by beginning and ending with the strongest points that can be made. Following the show business model, our preference is to begin cross-examination with our second strongest point and end it with our strongest point. Jackson’s cross-examination of Goering did the opposite; it relegated his best points to the middle of his questioning and therefore partially dissipated their effect. In addition, Jackson poorly structured each of the three days of the cross-examination. Jackson’s disastrous start and weak finish stood out both to the tribunal justices and to the courtroom observers.

Second, it is important to sail the boat close to the shore. The significance of a given cross-examination to a case is usually directly proportional to the adversity of the witness. In this respect Jackson’s cross-examination of Goering is a classic example. Particularly when examining an intelligent and hostile witness, cross-examination is no time to go freelancing in blue waters or to take risks searching for hidden treasure.

How does an attorney “sail close to the shore” during cross- examination? An attorney hugs the shore by addressing issues that have an anchor, some piece of evidence that can be used to make the point in issue with or without the cooperation of the witness. Jackson’s use of Goering’s edicts directed at German Jews is a powerful example of anchored examination. Jackson’s engagement with Goering on the issues of Nazi ideology at the outset of his examination is a good example of sailing without an anchor on cross.

Third, the examiner should always hold a paddle in reserve with which to whack the witness and bring him back under control if he begins to stray. It understates matters considerably to note that Jackson held some awesome paddles during his cross-examination of Goering, although he generally failed to use them as such. Instead at crucial moments he flailed away pointlessly both with the court and with the witness. There is no substitute for holding a paddle and using it at the appropriate time.

Fourth, it is unnecessary to cover the waterfront on cross-examination. There is no need to take up all the issues raised on direct or to pursue every issue raised by unsatisfactory answers during cross. The goal is to poke a limited number of holes in the witness’s boat in order to neutralize him. A few successful strikes on issues of credibility or substance are achievement enough on cross-examination. If the witness is discredited through the cross-examination, the substance of the witness’s testimony will be diminished. A good lawyer need do no more than stay with the good stuff. Selectivity is the key.

Perhaps most important of all, one should not forget that even a bad cross-examination may not sink a strong case. Every trial has its own peculiar rhythms. Though the case may seem down today, it can rise again tomorrow. The Nuremberg trial serves as a good example. Despite Jackson’s disastrous cross-examination of Goering, the tribunal convicted him and sentenced him to death by hanging. Only his suicide moments before he was to be hanged prevented the sentence from being carried out.

Jackson’s ultimate victory over Goering at trial has all but erased the memory of Jackson’s defeat by Goering during cross-examination. The story of the worst cross-examination in history in its own way has a happy ending.

NOTE: Those who want to judge for themselves can now review the entire Nuremberg trial transcript online. Hosted by the Avalon Project at Yale Law School, the site includes a complete copy of the transcript and related documents. The quotations from Goering’s testimony above are taken from Volume 9 of the transcript.