Nuremberg: The Fall Of The Supermen

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All the witnesses had to pass near him as they left the courtroom. When one German general who had given particularly incriminating evidence left the stand, Goering, leaning across Hess, remarked to Ribbentrop in a clearly audible voice: “That’s one we missed after July 20” (July 20, 1944, when an attempt to assassinate Hitler failed and many anti-Nazi officers and aristocrats paid with their lives). And when another prosecution witness, Bach-Zelewski, a high ranking SS general formerly in command of antipartisan warfare on the eastern front, had finished testimony about the terrible atrocities committed there, Goering was suddenly on his feet. He spat in the face of the witness and shouted “ Schweinehund! ”—then seated himself, straightened his tunic, and beamed jovially at the military police who had rushed up. There was nothing to do.

On occasion Goering could be coolly and politely insolent, deferentially impudent. It was no wonder that this attitude—sly and quick and skillful—should irritate the cross-examining prosecutors. Once Jackson was crossexamining him about the minutes of the working committee of the Reich Defense Council in 1935, which contained a phrase translated as “preparation for the liberation of the Rhine.” Goering suggested that Mr. Jackson had made “a great mistake.” The phrase had nothing to do with any contemplated occupation of the Rhineland; it meant simply that the river should be kept clear in case of mobilization for defense against attack from the west, or from the east for that matter.

Jackson : You mean the preparations were not military preparations?

Goering: Those were general preparations for mobilization, such as every country makes.

Jackson: But were of a character which had to be kept entirely secret from foreign powers?

Goering: I do not think I can recall reading beforehand the publication of the mobilization preparations of the United States.

The answer was really innocuous, and Jackson should have let it pass. But he lost his temper. For some time Goering had been trying to put him off balance, and had finally succeeded. It was a long cross-examination, lasting a couple of days, and Jackson, already overburdened and tired, was feeling the strain. He made the initial mistake of not holding his witness psychologically and never letting him go. He should never have dropped his eyes from Goering’s face. Instead, he kept occasionally looking at his notes while the witness was answering, as if he were not thoroughly prepared, and the impact was lost. (On the other hand, one of the British prosecutors, Sir David Maxwell-Fyfe, held on like a bulldog; held on without ever noticing the witness’s impertinence, his sallies, his wit and sneers, which gradually died down; held on the way Edward Carson held on to Oscar Wilde during that famous trial, while Wilde laughed at him and the spectators egged him to further witticisms; held on until Wilde made his first break, and Carson had him against the wall, stammering and broken.)

 

“I respectfully submit to the Tribunal that the witness is not being responsive,” Jackson appealed to the bench. It was “futile to spend our time if we cannot have responsive questions … this witness has adopted an arrogant and contemptuous attitude toward the Tribunal which is giving him the trial which he never gave a living soul.” He asked that the witness be instructed to answer the questions yes or no, and leave explanations to the end of his testimony. I suggested to Lawrence that just then was a good time to recess, not to give an immediate ruling, and to let things cool off overnight. VVc adjourned—it was almost the usual time—and met in chambers. We were all of the opinion that witnesses after answering should be allowed to explain their answers at once—the usual practice—and not have to wait until the examination was over.

After the recess Jackson, profoundly upset, came to see me and my alternate, John J. Parker. He said we were always ruling against him, and intimated that I went out of my way to oppose him. He thought he had better resign from the trial and go home. We did our best to soothe and mollify him, to stroke his ruffled feathers by telling him how much we all admired him and how well he was conducting the trial.

At the time I thought it was merely his irritated reaction to Goering’s calculated and telling impudence. Later I became convinced that some more enduring sense of failure or of disappointment haunted him. Missing some subtler value, he may have tried in vain to persuade his ambitious heart that the externals were all that counted. It is not improbable that appointment as Chief Justice of the United States would have eased that brooding misery. But I do not think any achievement would have altogether banished it.