JUST BECAUSE YOU KNOW THE LYRICS DOESN’T MEAN YOU CAN SING

Starting in 1945 in Nuremberg, Germany twenty two major Nazi leaders were tried for war crimes. Judges  from the Allied Powers – Great Britain, France, the Soviet Union and the United States presided. Adolf Hitler, Heinrich Himmler, Wilhelm Burgdorf, Hans Krebs and Joseph Goebbels had all committed suicide in the spring of 1945 to avoid capture. When the trial ended in 1946 twelve prominent Nazis were sentenced to death. Hermann Goring was considered the most important of those on trial. He was sentenced to death but committed suicide the night before his execution.

US Supreme Court Justice Robert Jackson was the lead prosecutor for the US. Jackson was one of the few attorneys appointed to the U.S. Supreme Court who did not have a degree from a law school. He had been admitted to the bar through a combination of reading the law with an established attorney and attending law school.

Jackson was  assigned the cross examination of Goering followed by Britain’s cross examiner. The cross-examination took 2–1/2 days and Jackson was on his feet for the majority of it. It was followed by another half day by David Maxwell Fyfe, of Britain’s prosecution team.

Goering insisted everything they had done was the result of their patriotism. He also denied complicity in the Holocaust. During Jackson’s cross-examination, his mocking and evasive replies angered Jackson.  Goering interrupted Mr. Jackson repeatedly and sarcastically challenged the prosecutor’s choice of words and phrases. Jackson was so upset he appealed to the War Crimes Tribunal to force Hermann Goering to “change his attitude” toward the trial, and was turned down by the judges. This was after an angry verbal battle in which Goering repeatedly shouted Mr. Jackson down. In fact, Goering clearly got the better of Jackson, who became so angry at one point that he refused to continue the cross examination. Here is an example of Jackson’s examination at the early part of the questioning:

MR. JUSTICE JACKSON: Was it also necessary, in operating this system, that you must not have persons entitled to public trials in independent courts? And you immediately issued an order that your political police would not be subject to court review or to court orders, did you not?

GOERING: You must differentiate between the two categories; those who had committed some act of treason against the new state or those who might be proved to have committed such an act, were naturally turned over to the courts. The others, however, of whom one might expect such acts, but who had not yet committed them, were taken into protective custody, and these were the people who were taken to concentration camps. I am now speaking of what happened at the beginning. Later things changed a great deal. Likewise, if for political reasons-to answer your question- someone was taken into protective custody, that is, purely for reasons of state, this could not be reviewed or stopped by any court. Later, when some people were also taken into protective custody for nonpolitical reasons, people who had opposed the system in some other way, I once, as Prussian Prime Minister and Reich Minister of the Interior, I remember…

MR. JUSTICE JACKSON: Let’s omit that. I have not asked for that. If you will just answer my question, we shall save a great deal of time. Your counsel will be permitted to bring out any explanations you want to make.

You did prohibit all court review and considered it necessary to prohibit court review of the causes for taking people into what you called protective custody?

GOERING: That I answered very clearly, but I should like to make an explanation in connection with my answer.

MR. JUSTICE JACKSON: Your counsel will see to that. Now, the concentration camps and the protective custody…

THE PRESIDENT: Mr. Justice Jackson, the Tribunal thinks the witness ought to be allowed to make what explanation he thinks right in answer to this question.

MR. JUSTICE JACKSON: The Tribunal thinks that you should be permitted to explain your answer now, and it will listen to your answers.

On the other hand, Sir David Maxwell Fyfe was very effective in his half day cross examination. In a letter to his wife, Fyfe said: “Jackson had not only made no impression but actually built up the fat boy further. I think I knocked him reasonably off his perch.”

Robert Hedrick, an Adjunct Professor at Seattle University in Seattle has given talks in the U.S. about the Goering cross examination He has said:

“Goering was a “slippery” witness, who often complained about the translation of questions to buy time to think of an answer.

“Right from the very beginning, Jackson did not control his witness, and the questions went on and on. Jackson seems more interested in the next question he is going to ask than listening to his witness,”

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 all judge Jackson’s cross-examination of Goering to have been a fiasco.  Jackson’s cross-examination of Goering has become notorious for its ineptitude. It was a disaster due to a lack of experience in cross-examination techniques and a lack of adequate preparation.

The obvious lesson is being intelligent and knowing the facts as well as the evidence doesn’t mean you have the ability to be a great cross examiner. That requires work, preparation and reducing the question to short, simple ones with little room for evasion. Pace and demeanor are equally important. It requires  the right competitive determination coupled with calm professionalism.

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