The Goering case was vital to the prosecution; it was almost a microcosm of their entire indictment. The man himself had for most of the Third Reich held power in Germany second only to that of Hitler. He had played a significant part in extending the Party’s grip on the nation and in the terrorism which had quelled opposition to it – the Roehm Purge, the Reichstag Fire, ‘Kristallnacht’, and so on. His mind had been employed in nearly every field. Goering had built up the Luftwaffe in contravention of the Versailles Treaty and sent it into action in every area attacked by Germany. He had played his part in all military planning, been present at all the conferences which the prosecution alleged proved Nazi aggressive intent. He had been involved in economic planning too. His work with the Central Planning Board, the Four Year Plan and with the policies for exploiting the Eastern Occupied Terrorities had been crucial to Germany’s preparations for war and for the administration and spoliation of the areas conquered. He had still found time for diplomatic activity as well, supervizing the Anschluss and prostituting his charm to give assurances to the Czechs and others that they would never be attacked. If the conspiracy count was to be proved, then Goering’s part in it had to be established beyond any reasonable doubt. If he was not a conspirator, no one was.
Goering was accused of playing a major role in all the other three counts as well. Massive evidence had been presented on his contribution to the waging of wars. The illegality and viciousness of their conduct were also attributed partly to his policies and influence. He had to answer general charges on his encouragement of war crimes such as the lynching or execution of captured airmen, and more personal charges concerning the atrocities committed by the Hermann Goering Division and the murder of the fifty British airmen who had escaped from Stalag Luft III in Sagan. There was evidence that Luftwaffe factories had been increasingly dependent on the use of prisoners-of-war to manufacture planes and weapons. Goering’s activities too had allegedly covered a wide range of crimes against humanity. Though he had passed his responsibility to Himmler, it had been Goering who had invented and developed the Gestapo and concentration camps while he was Prussian Minister of the Interior. His administration of the Four Year Plan had countenanced the use of slave labour. His personal looting had been on a scale more than adequate to justify charges of criminality. But he had not been content with stealing paintings for his own collection at Karinhall. Goering as much as anyone was alleged to have stripped Europe of its artistic inheritance, its food, its industrial resources and its people for the sake of the Nazi Reich.
In the view of the prosecution, Goering’s cynicism, the brutality which lay just below his genial skin, his avarice, all had characterized Nazi policies. To expose the nature of the man and to expound his crimes in court would be to vilify the entire Nazi regime. To fail would be inexcusable; the evidence was monumental. But the Goering case was equally vital to the defence. Any breach they could make in the prosecution charges could be used by future defendants; any blemish which would be found in prosecution evidence might shake confidence in the whole. Any success in the Goering case would serve to show other defendants that there was still hope. Many of them needed borrowed courage, so did their former colleagues and followers outside Nuremberg. Goering had plenty of courage to spare. He had prepared a defence not just for himself but for others in the dock and for the whole history of Nazism. His case might well be a turning point in the trial and in much more besides.
The importance of the Goering episode in the drama of the Nuremberg trial was apparent to many outside observers as well as to the participants. The day the defence case began – Friday, 8 March – the courtroom was crowded for the first time in many weeks. There was a mood of keen anticipation. Something of the theatrical atmosphere of the opening of the trial was revived as visitors crowded into their gallery and cameras flashed in the well of the court, (1) There was a revival of anxiety too. The military authorities had set up new sandbagged gun positions in the corridors and round the building. They feared an attack to rescue Goering. (2) Goering himself was clearly aware of his crucial role, but for once he showed no sign of relishing the centre of the stage (he always seems to have had stage fright before a major appearance). Before the session began he sat hunched in the dock, looking ‘the picture of misery’ and clutching a grey Army blanket round his knees. His customary red, polka-dotted scarf, usually so jaunty, today seemed only to emphasize his pallor. (3) He fidgeted uneasily. As his counsel, Dr Stahmer, made a few introductory remarks, claiming that the Versailles Treaty had ceased to be binding since others had failed to disarm, and encountered the wrath of the Bench by trying to introduce two speeches and a book already ruled irrelevant, Goering tried to write some notes. But his hands were trembling so violently that he gave up the attempt and folded his arms to trap the hands which betrayed him. (4) The former Reichsmarschall recovered some of his self-control and bravado as his witnesses appeared on the stand. He beamed to encourage them; nodded or frowned to prompt them. Their eyes slid constantly to him and they were coaxed through their testimony more by the actor-manager than by Stahmer. (5)
Even under Goering’s skilled guidance, however, his witnesses played their parts badly. Bodenschatz, the liaison officer between the Luftwaffe and Hitler’s headquarters until he was wounded in the July Bomb Plot, was seen by several journalists to be sweating heavily. He literally read his lines – and the Tribunal overruled Jackson’s protest and allowed him to continue to use his prepared script. He plodded through the encomium he had been given. Goering knew nothing of the plans for ‘Kristallnacht’ on the night of 9-10 November, said Bodenschatz; he knew nothing of the conditions in the concentration camps or the extermination of the Jews – such things were never discussed at headquarters. Goering, he went on, had rearmed only to give Germany parity with other nations; had drawn up the Four Year Plan to secure vital raw materials which others sought to cut off; had worked for peace and opposed the attack on Russia. As if his version were not implausible enough, Bodenschatz summed up Goering as ‘a benefactor to all in need’. (6)
The hollowness of his testimony was soon revealed by Jackson’s cross-examination. Bodenschatz admitted knowing that a meeting he had quoted had taken place because ‘Dr Stahmer told me so’ – and spectators burst out laughing. (7) He was led into recalling Goering’s promise to protect Germany from air attack – and Goering was furious that his failure had been publicized. ‘He gnashed his teeth and his eyes blazed with fury,’ a reporter noticed. (8) By lunchtime some of the defendants, Jodl and Schacht especially, were expressing malicious satisfaction at the sight of Goering’s discomfiture, but others became insecure as they realized the damage a cross-examination could inflict. Goering, though, was not going to admit to anxiety: ‘Wait till he (Jackson) starts on me – he won’t have any nervous Bodenschatz to deal with.’ (9)
In the afternoon the testimony of Field Marshal Milch was even more of a failure. He expanded several points made by Bodenschatz about the Luftwaffe and Goering’s wish for peace, and added some new ones of his own about ‘terror fliers’ always being treated as ‘comrades’ and Dachau being a clean, well-run place, providing excellent food for those staying there. Under cross-examination, the extent of his lying became all too apparent and Milch was too lumbering to avoid the numerous pitfalls dug for him. He denied to Jackson that the Central Planning Board dealt with labour problems, and then had to listen to readings from its minutes where Speer suggested that slackers should be sent to concentration camps. He denied that the Board used prisoners-of-war, then suffered quotations from his own complaints at a meeting that the prisoners they were sent were all too often unfit for work. Confronted with his own words – that it was ‘amusing’ to think of prisoners-of-war manning anti-aircraft guns – Milch could only mumble that the minutes must be inaccurate, that the Board would never have released such prisoners from industrial work, although minutes before he had denied that they were ever employed. Presented with evidence to show that the Luftwaffe used concentration camp labour in its factories, he could not deny it – only deny that he knew about it. Having asserted that he believed all foreign workers were volunteers, he could not deny he was present when Sauckel had boasted that of the four million of them in Germany, only 200,000 had come voluntarily; he merely said he could not remember this meeting.
The excuses got even feebler as ‘Khaki’ Roberts ran rings round him. Milch ‘knew nothing’ about plans for aggression, though he had been at the 23 May 1939 conference on Poland. Whatever planning for invasion was mentioned by Roberts, Milch always claimed to have been on leave at the time. When shown his correspondence with Himmler about the experiments performed for the Luftwaffe on prisoners in concentration camps to test theories on high altitude flying and the effects of exposure, he could only insist he had forgotten Himmler’s missives and signed his own without reading them. The New York Times reported that Milch left the box ‘a confused and wilted witness who had contributed as much to the prosecution case as he had tried to detract from it.’* (10)
The same could have been said of Goering’s subsequent witnesses. Brauchitsch, Goering’s old adjutant, tried to maintain that no one knew anything about any unpleasant matter – except the orders to lynch enemy airmen, and these were ‘ignored’. Korner, once State Secretary in the Prussian Ministry, also pressed the line that everyone had seen, heard and spoken no evil, even arguing that since Germany had built up agricultural production in countries she occupied, she had a right to take a little of ‘the surplus’. As Dean said in a cable to the Foreign Office that evening, both Korner and Brauchitsch had ‘made a very bad impression’ and were too obviously lying. (11)
For a brief moment Field Marshal Kesselring made a slightly better impression. He was helped by looking ‘trim and confident’ in his Luftwaffe uniform, and his answers to Stahmer and other defence counsel were refreshingly direct and assured. (12) Jackson’s cross-examination made little headway against his authoritative manner. It was only when Maxwell-Fyfe took over that it became clear that Kesselring was, in Dean’s words, ‘a decent man according to his own standards’ but that ‘his standards were those of a murderer and a liar whenever any German military advantage could be gained.’ (13) Maxwell-Fyfe confronted him with evidence of the bombing of Rotterdam after negotiations for surrender had begun, of the brutal treatment of hostages and partisans, of the involvement of the Luftwaffe in plans for attacks on Poland and Russia. Kesselring collapsed. The Times reported the short but devastating assault by Maxwell-Fyfe as being ‘as masterly a piece of cross-examination as the court has heard’. (14)** He was to be equally effective with Goering’s last witness.
Birger Dahlerus was a Swedish businessman who had known Goering’s first wife and had used the contact to arrange a meeting between Goering and seven British industrialists in July 1939 at his own wife’s house in Schleswig-Holstein. Dahlems hoped to persuade the Nazis that the British would tolerate no more aggression by Germany. He had followed up the meeting with conversations with Lord Halifax and several British officials, approaches to Ribbentrop and Goering, and even a meeting with Hitler himself. In the autumn of that year he had written a book about his efforts, The Last Attempt. Goering had read it in his cell at Nuremberg and had been keen to call Dahlerus as a witness to his peaceful intentions. Dahlems had been most reluctant to appear for the defence – but in the end proved a most valuable prosecution witness. As Maxwell-Fyfe guided him through the events of this period Dahlerus was patently appalled to realize that while he thought he was engaging the Nazi leaders in negotiation, they were already fixing the date to invade Poland and using him to conceal their aims. Even more embarrassing for the defence, it became clear that Goering must have read Dahlerus’s book very cursorily and that Stahmer cannot have read it at all. Extracts read by Maxwell-Fyfe described Goering’s ‘obsequious humility’ as Hitler ranted and screamed about ‘planes, planes ... tanks, tanks’, and ‘exterminating the enemy’. They described how by 1 September Goering was ‘in some crazy state of intoxication’; how he demanded huge chunks of the Polish Corridor, then called his demand ‘a magnanimous offer’. The book not only damaged Goering; it recorded that Dahlems had been warned by Goering that Ribbentrop would try to sabotage his plane and added the impression that the Foreign Minister had done everything in his power to prevent the success of the negotiations. As the cross-examination continued, Goering fumed, and pulled at the cord on his headphones until a guard took it out of his hands before it was ripped off. That evening Ribbentrop whimpered to Kaltenbmnner: ‘I don’t know who to trust now.’ (15)
*In 1947 Milch was sentenced to life imprisonment as a war criminal by a Military Tribunal at Nuremberg. In 1951 his sentence was commuted to fifteen years. He was in fact released in 1954, and died in 1972.
** Kessel ring was sentenced to death by a British military court in Venice for ordering the execution of Italian hostages. His sentence was commuted to life imprisonment, but he was released in 1952 because of ill-health. He died in 1960.
Though defendants had been shaken, testimony cut to pieces, and the case against Goering considerably hardened, the prosecutors had little reason for self-congratulation. With witnesses of such low calibre, their task was all too easy. Even so, though the British had shown competence of a kind taken for granted in a minor trial at home, Rudenko and Jackson had shown a worrying lack of skill; what little success they had achieved had resulted not from their own talents but from the ineptitude of the witnesses. Jackson had taken the main responsibility for the cross-examinations and had already shown some of the weaknesses which were soon to prove fatal. He was long-winded, leaving time for his points to be spotted and replies to be framed. On some occasions it was not always clear what point he was trying to establish or whether it really mattered – as the New York Times was quick to notice. (16) He was not always in control of his material and more than once had muddled documents or been caught out on small details. Many defence counsel on the other hand had taken full advantage to examine witnesses in the interests of their own clients and had made a relatively good job of it. Furthermore the testimony they had extracted had not been challenged as prosecution counsel concentrated on the Goering case.
The prosecutors do not seem to have been troubled, though. Perhaps they could dismiss their poor performances as dress rehearsal failures. What did cause them anxiety was the time being taken by the Goering case. Stahmer had encouraged his witnesses to make long statements, the number of questions from other defence counsel had dragged out the testimony even further, the prosecution cross-examinations had been unduly prolonged. All four teams had cross-examined Milch, an experience which brought home to them that they were taking far too long. They met the following morning to discuss ways of shortening the proceedings. The British successfully argued that future cross-examinations be conducted by one prosecutor only, with short supplementary questions from others solely when national concerns were involved. (17) They were not yet prepared to make official complaints about the time being taken by the defence, though it was already causing irritation. It had been noted with some alarm that though there had been a few tart comments from the bench, the judges had on the whole left the proceedings to run uninterrupted. The defence was being given ample leeway – the prosecutors thought too much.
The judges had, however, intervened on one crucial point: they had ruled against defence questions on violations of international law by the Allies. Laternser had tried to introduce tu quoque evidence in his examination of Kesselring; Rudenko and Jackson had been quick to protest and argue that violation by one side never excuses violation by the other. Stahmer had pleaded the need to examine matters which ‘may contribute to a more lenient judgement of German behaviour’ – in other words the hope of establishing mitigating circumstances only, but he had not convinced the judges. Beaumont at the Foreign Office expressed some anxiety that the judges’ ruling might be seen in the future as wrong, unfair. He was aware however that it would speed up the trial and prevent it bogging down in ding-dong battles over particular incidents – the Tribunal, after all, was concerned not with individual acts but with the allegation of a deliberate Nazi policy of atrocity. (18) Though the ruling had been expected by the prosecutors, it was useful to have it on the record at this early stage. With this comfort and with teeth sharpened on witnesses, they felt ready to deal with Goering himself.
Goering went into the witness box on the afternoon of Wednesday, 13 March. For a moment he looked nervous; his face was very flushed and his hand shook when he raised it to take the oath. (19) ‘We stirred with expectation,’ The Times correspondent Bob Cooper remembered, ‘when Goering left his corner seat in the dock and walked boldly to the witness box, his baggy trousers falling over high jackboots, a thick sheaf of papers under his arm. Not the Goering of pomp and power, but still a considerable figure.’ (20) He was not the Goering of the newspaper cartoons and the Allied propaganda either. It had been all too tempting in recent years to believe that Goering was little more than the ‘hail-fellow-well-met’ old air ace, now run to seed. He had been caricatured as ‘Fatty Hermann’, dismissed as merely the smiling face of Nazism. He had been grossly underestimated. He was a man of great intelligence, nimble wit, wide grasp and immense energy. The Reich had employed all too many third-rate incompetent time-servers – Goering had shone by comparison. Even in 1946, after amassing the horrific evidence against the man, it was still dangerously possible to assume that he was now nothing more than the self-indulgent, pleasure-seeking, drug-impregnated bag of lard with whom Hitler had lost patience and who had sat in Karinhall for two years painting his face and changing his jewellery.
In fact, captivity had transformed the man. His trousers were baggy because prison food and some exercise had made him fitter than he had been for years. Weaning him from drugs had restored the clarity of his intellect and memory; his mind was fitter than ever. His courage was as great as it had ever been. He was not trammelled by false optimism or distracted by an urge to scrabble for loopholes of extenuation. ‘Goering is certain he is going to be hanged,’ said Werner Bross, one of his assistant counsel. ‘But he says he will die like a man.’ (21) Goering’s vanity, which had handicapped his career, was now transformed into a possible strength. He was resolved to pass into history as the hero who had remained true to his cause and given his powers and his life to defend it. He had decided to print his self-image on the future, to rally his faltering colleagues and reassure his nation, degraded by defeat and wounded by calumny. Bross was known as an opponent of Nazism, yet there were tears in his eyes, thought his interviewer, when he spoke of Goering. ‘After all, Goering is a fellow German and even if he has done wrong, one cannot help feeling proud that he is living up to the best German traditions of courage and loyalty.’
Once Goering settled in the witness box his stage fright went and he seemed almost relaxed. The official films show him quite still for the most part, reserving gestures with his right arm to colour key passages in his statement. Only before the start of each session can he be seen taking deep breaths, rubbing his hands and licking his lips. His voice was full and confident, projected without effort. There is a noticeable lack of theatricality in his testimony: the underplaying perhaps of a good actor. Throughout his examination he directed few glances at the Tribunal; he addressed most of his answers to his lawyer. Only occasionally did he look round the room to check the response and to involve his audience. He carried his thick wad of notes, but needed no more than a quick reference to prompt his next passage or refresh his memory on details. He was proud of this: ‘It is all from memory. You would be surprised how few cue words I have jotted down to guide me.’ (22)
Fluent and assured, with only rare feeds from Stahmer, Goering delivered a carefully prepared statement for the whole afternoon – then the next day, and the next. The tone was one of candour – it might alternatively be called a shameless confession of facts and attitudes that most men would have worked hard to deny. He not only acknowledged his position in the Nazi party, the Luftwaffe, the Four Year Plan, the Cabinet, in Hitler’s inner coterie, he positively boasted of the authority he had wielded and the influence he had exerted. He was proud of the role he had played in destroying opposition to Nazism: what he called crushing ‘so-called freedoms; obstacles to progress’. He was proud of his role in foreign affairs, helping ‘to fulfill an old, old longing of the German people... (to) become a unified Reich’; acquiring living space to establish ‘the proper relationship between a population and its nourishment, its growth and its standard of living’. He cheerfully admitted that he had organized black markets in occupied countries: ‘a black market is inevitable in times of scarcity, it is again flourishing in Germany today.’ He had no qualms about discussing many of his policies towards the Jews: their influence, he said, had been out of all proportion to their numbers; it was National Socialist policy that ‘Germany should be led by Germans’. The Nuremberg laws were ‘to bring about a clear separation of the races’.
Throughout his testimony Goering savoured the opportunity to make jibes at his adversaries. Hitler had become Head of State, Government and the Armed Forces, he explained, ‘following the example of the United States’. He was accused of using Russian resources for German ends. Well, he replied, that was ‘just as natural, just as much a matter of duty for us as it was for Russia when she occupied German territories, but with this difference: that we did not dismantle and transport away the entire Russian economy down to the last bolt and screw as is being done here’ (an arguable point but one which hit a sitting Russian target). Germany was criticized for seeking living space. Perhaps the situation is different for the Four Powers, he sneered, who ‘call more than three-quarters of the world their own’. He was being charged with war crimes, crimes against humanity. Was it not Churchill, he inquired pointedly, who had said ‘in the struggle for life and death there is in the end no legality’?
But the main theme of his speech was complete acceptance of his own personal responsibility. Goebbels or Hitler might be blamed for the outrages of ‘Kristallnacht’ but as for the subsequent fines and economic laws against the Jews, ‘I issued them and consequently am responsible and do not propose to hide in any way behind the Führer’s orders.’ Then: ‘I was responsible for the rearmament, the training and the morale of the Luftwaffe.’ As for the negotiations and trickery which led to the Anschluss: ‘Not so much the Führer as I personally bear the full and entire responsibility for everything that happened.’ There was no hesitation in admitting to the measures for stripping the Russian economy: ‘I naturally take complete responsibility for them.’
Where appropriate Goering could reconcile his own responsibility with his praise for the Führerprinzip - the ‘Leadership Principle’ – according to which power and policy flowed from Hitler. He made no attempt, as others had done and would continue to do, to suggest that the Führerprinzip removed from individuals their own obligations. Nor did he accept the prosecution accusation that it had constituted a tyranny. ‘I upheld this principle and I still uphold it positively and consciously’; it had always existed in Germany, was especially necessary when a country was at low ebb or in danger. In upholding it, Goering was proffering an umbrella to his colleagues in the dock: the Reich Cabinet did not meet after 1937 because ‘the Führer did not think much of Cabinet meetings’; the Führer quite properly never asked for the opinions or approval of his generals – it was up to the leader to make the fundamental decisions. He himself avoided using the shelter set up for him by Bodenschatz: the idea that his worsening relationship with Hitler had cut him off from policy making. He was too vain about his influence with the Führer to avail himself of that defence. He preferred to stress how often he had been consulted – the one significant exception being over the Stalag Luft III affair.
For all his skill, staunchness to old values and sheer brass neck, Goering was not prepared to grasp some of the nettles standing in his path. He dodged quickly round matters like the Roehm Purge, the burning of Reichstag and other cases of terrorism; he dismissed them as rare examples of other people getting out of hand. He would only talk of concentration camps being established for ‘protective custody’ and ‘a political act for the defence of the Reich’; he fell back on the usual claim that after Himmler took control in 1934 no one knew what happened in them. He denied point blank that free workers were enslaved or that the Four Year Plan had an aggressive purpose. He stretched credibility to the very limit in arguing that Yugoslavia was mobilizing before she was attacked, that only military targets were bombed in Poland, that all bombing in Holland was intended to end the campaign as quickly as possible so as to save lives. Goering asserted that Leningrad was the only Russian city to suffer starvation and that was because of the siege, that Russian agriculture and industry were built up not destroyed, that prisoners in underground Luftwaffe factories were happier than in their camps – ‘given what is known now’ – and that all prisoners-of-war engaged in anti-aircraft operations were volunteers, mainly Russian, he said. He was adamant in denial of knowledge of Sagan, of any order to lynch Allied ‘terror fliers’. Almost pathetically he kept coming back to the allegations about his looting – a taint on the heroic character he was trying to create. He described all art treasures as having been ‘rescued’ from destruction or ‘deserted’ by their owners. Perhaps, he conceded, ‘my collector’s passion got the better of me’ when some French paintings were taken to North Germany. But ‘I meant to pay for those objects which I wanted to have’ – even to give the money raised by the sale of the others to families of French war victims. But alas, that kindly intention had been frustrated by the Party Treasurer.
After completing his statement, Goering was examined by nearly all the defence counsel in turn. He rose to the occasion with seigneurial generosity and genuine cleverness. Everyone was afforded some protection; everyone was presented with a suitable line of defence to develop, in some instances better than anything they were to manage later for themselves. Even so, to be defended by Goering was not a source of unalloyed satisfaction. His favourite means of parrying charges against his fellow defendants was to employ disparagement. Keitel, he said, could make few decisions of his own; he ‘came between the millstones of stronger personalities’. The General Staff had little influence on military planning; they always showed such a ‘very reticent and timid attitude’. Ribbentrop and Rosenberg were too little respected to be given any say in foreign policy. Schirach and Seyss-Inquart were not dependable enough to be given much rein in their own spheres. Jodl’s diary might say Germany was looking for an excuse to invade Norway but that was just a typical example of his ignorance and poor judgement. In stressing the insignificance of the others, Goering was exalting his own position: he, not Papen, had negotiated the formation of the Nazi government in 1933; he, not Funk or Schacht, had been responsible for most economic decisions. No one had been privy to the Führer’s plans in foreign policy – but Goering alone had sometimes been admitted to the private realm. In this and other matters ‘at best only the Führer and I could have conspired’.
Goering’s performance so far had made a tremendous impression. Dean praised his ‘mastery of facts and persuasive manner’. (23) Several newspapers commented on the sustained note of sweet reasonableness by which he had secured the Tribunal’s non-intervention. They noted his subtlety and mental agility, and expressed grudging admiration for his magnanimity to the other defendants in fighting their cause. These colleagues had certainly viewed much of the statement with delight. On the first evening they had greeted his return to their box ‘like fellow schoolboys greeting a classmate leaving the examination room’. (24) After the examination in chief, ‘the handshaking and plaudits, the bright eyes and smiles of his comrades in the dock, happier than they have been for months, are proof that he is winning them over to his last ditch stand of the Nazi regime in history’. (25) The praise had certainly continued below stairs. Speer said he had found the examination in chief ‘gripping’; even Doenitz was impressed by Goering’s control and commented that ‘Biddle is really paying attention. You can see that he really wants to hear the other side of the story.’ Frank had been delighted (and no doubt relieved) by the way Goering was prepared to take responsibility for so much; he only wished he had always behaved so well. So did Neurath. Schirach was so swept away by his hero’s performance he believed it would be madness now to convict him because ‘he is so popular, even in America – and you can see now why he was so popular’. (26)
But where there was public praise it was for the style of Goering’s statement and not for its content. In spite of all his care in preparation and the brilliance of his performance, Goering had failed to convince. It was acknowledged he had eased the defence for some of the others, but it was not felt he had succeeded in absolving the Nazi regime in any way. The general judgement was summed up in Dean’s words: ‘His story amounted almost to a plea of guilty’ – personal and national too, he might have added. (27) The case for National Socialism might have been put forcibly, but it had been made with too blatant a demonstration of the callousness and disregard for restraints and decencies on which that regime had rested. And where he could not brazen or slither, Goering had too often relied on lies – lies which laid him open to prosecution attack and which could impugn the rest of his testimony.
He had given twelve hours of evidence, a remarkable physical and mental achievement if nothing else. He had spoken with hardly an interruption from the Bench, delivering what was as much a plea to posterity as a defence – and he had been allowed to get away with it. Birkett was horrified by the Bench’s tolerance of this approach: ‘If this procedure is followed in the case of all the defendants, and long detailed statements are made covering important and unimportant points alike, then the time taken will be so great that the trial will be written down as a failure. It will have done much to restore German faith in their leaders, and the verdicts against the leaders will be regarded by the German people as excessively unjust.’ (28) But at least a performance of this length had given the prosecutors ample time to get the measure of the man, and to sense something of his formidable powers. Any good impression Goering had made in his examination in chief must now be wiped out by the cross-examination and it was essential to pull him away from his broad generalizations and towards those specific charges on which the prosecution case was founded.
This was the challenge faced by Robert Jackson when he opened the cross-examination on 18 March. Goering, who had been clearly exhausted when he left the stand on Friday, had had a weekend to recuperate. He was in fighting trim. As Jackson’s sturdy, pugnacious figure crossed to the microphone, Goering cast a glance of reassurance at the defendants’ box, then sat forward, a hand on each knee. He was hunched, alert, expectant. His eyes stayed fixed on Jackson’s face like a swordsman looking for warning of the thrusts that would come. (29)
Jackson began slack and slow on his feet. He dragged through the early history of Nazism, the policies with which the Party had gained control over Germany, the incidents with which he no doubt hoped to illustrate its criminality. The Times correspondent and others were amazed that he should spend so much time on such side issues: it seemed a clear tactical mistake to allow Goering to warm up before introducing the more vital charges on which the main case was based. But then Jackson had always seen the entire prosecution case teleologically – the final crimes being implicit in the very origins of the regime. Whether the issues were well-chosen or not, Jackson did not use them effectively. He skipped from one topic to another, using little or no documentary evidence to support the allegations he was making. His questions were general and imprecise. Goering seized them, condescendingly divided them into more specific sections, then dealt with each at great length. He was parrying Jackson with ease and taking an opportunity to repeat all the justifications, all the boasts he had made in his examination in chief. Jackson became increasingly irritated as Goering avoided direct answers. The official film shows him jabbing his pen into the rostrum or turning it over and over in mounting agitation as Goering’s rhetoric gained force. He played into Goering’s hands with questions on the Roehm Purge and the burning of the Reichstag. Strong suspicions there might be, but Jackson had no conclusive evidence to prove Goering’s connection with either incident. Goering could flick away with ease affidavits from three SA men that he had provided materials for the Reichstag Fire; he then had the confidence to add that he had no regrets about its destruction ‘from the artistic point of view’; he only lamented having to replace the building with ‘My Kroll Opera House ... the opera seemed to me much more important than the Reichstag.’ Jackson did not even use the documentary evidence which undoubtedly existed on Goering’s aggressive intentions towards Austria and Czechoslokavia; he left him to counter the accusations with contentious statements about policies in these areas having followed the principle of self-determination established by the Versailles Treaty. When at last Jackson began to introduce evidence, Goering threw it back at him, pointing out, for example, that the minutes of a meeting where Jackson alleged he began the process of rearmament in 1933 merely said that the policy had been ‘discussed’ not ‘begun’. By the time the session finished, it was all too clear who had won the bout. ‘Well,’ said an American reporter, ‘I guess Jackson has been saved by the gong’. (30)
Goering’s performance had impressed Birkett. He wrote: ‘He reveals himself as a very able man who perceives the intent of every question almost as soon as it is uttered. He has considerable knowledge, and has an advantage over the prosecution in this respect, for he is always on familiar ground ... he has therefore quite maintained his ground, and the prosecution has not really advanced its case at all. Certainly there has been no dramatic destruction of Goering as had been anticipated.’ (31) Several newspapers too noted that Jackson had failed to extract a single admission which had not already been made in direct evidence and had not even drawn attention to the guilt they exposed. (32) Dean had checked on the professionals’ judgement of Jackson’s performance. Among the lawyers it had been ‘severely criticised’; he reported their complaints that Jackson had failed to reveal Goering’s frequent lies and had not used the good material which everyone knew was available. (33)
It was bad enough to have mishandled the first day of cross-examination in such a vital part of the case. It was more serious that the experience had enabled Goering to return to the dock ‘in a state of obvious self-satisfaction’ (34) and that the other defendants and their counsel seemed to have a glint of triumph in their eyes. (35) It was, however, a greater, irreparable disaster that his first day of cross-examination had shattered Robert Jackson. He would never recover.
It was not realization of professional inadequacy which caused his disintegration; it was his reaction to the way the Tribunal had conducted the day’s proceedings. They had let Goering rip; they had left him to make prolonged speeches without rebuke; they had allowed him to treat Jackson’s questions in any way he chose. Jackson expected ‘yes’ and ‘no’ answers, and expected the Tribunal to insist on them. When he made an angry appeal to the judges for limits to be imposed on his witness, they replied they wished to hear what Goering had to say. Given such overt encouragement Goering had become even more long-winded, yet more insolent – he even had the effrontery to criticize Jackson’s questions as too broad and inconclusive. Still the Tribunal had issued no rebuke. Given Jackson’s history of resentment of Tribunal rulings against him, he was in no mood to endure what he could only see as new vindictiveness, threatening virtual destruction of the most important part of his case. He must have blamed the humiliation of the day not on his own shortcomings but on the conditions the judges had created for him to work in.
Consequently, when Jackson resumed the cross-examination next day he was hardly in the frame of mind needed to get a grip on Goering; at least, that is the only charitable explanation for the intellectual mess that followed. Surely no man capable of dispassionately judging his previous day’s work would have seemed so inadequately prepared and so out of control of his material. Yet a wonderful opportunity awaited him. Dahlems had opened the day, and by mid-morning Maxwell-Fyfe had turned him into a prosecution witness. But even with Goering softened up by Dahlerus’s revelations, Jackson could do nothing. Yet again he chose to make a major issue of a minor point – and adopted a weak position which he himself then undermined. He challenged Goering’s claim never to have taken part in a meeting of the Council for the Defence of the Reich by using a document purporting to show that he had chaired such a meeting. By the time defence counsel had grumbled about not being given advance copies of the minutes, Goering had had ample time to read them (which seemingly Jackson had not). He immediately drew attention to the fact that the document described a group much bigger than the Council and that it actually stated that the Council never met. Jackson then embarrassed himself still further by producing a document intended to demonstrate the damaging charge that in 1935 Goering was planning ‘the liberation of the Rhineland’. One glance and Goering knew he had Jackson on the ropes. No, he said, the document was talking about the ‘cleaning of the Rhine’ – removing obstacles in the river, such as tugs, which might impede navigation in case of a sudden mobilization. He was right. Jackson complained bitterly that evening to Colonel Dostert that he had been given a wrong translation. Dostert leapt to the defence of his staff: he called the use of ‘liberation’ for ‘cleaning’ an easy but unimportant slip. (36) And indeed the bigger slip was surely Jackson’s – he had read ‘Rhineland’ for ‘Rhine’, or someone on his staff had. He was winded by Goering’s quick counter, stammered for a moment, then snapped that at least the document showed planning ‘which had to be kept entirely secret from foreign powers’.
Secret planning is never in itself a crime – and Goering was delighted to point it out: ‘I do not think I can recall reading beforehand the publication of the mobilization preparations of the United States.’ Jackson could stand no more. ‘This witness is not being responsive... It is perfectly futile to spend our time if we cannot have responsive answers to our questions ... the witness is adopting an attitude to the Tribunal which is giving him the trial which he never gave to a living soul, nor dead ones either.’ As he lapsed into incoherence, Lawrence came to his rescue. ‘Perhaps we had better adjourn now at this state’; ‘state’ was a verbal slip, but an accurate description of what Jackson was in. He had been saved by the gong again. But he finished this second round of the bout infinitely weaker and more severely mauled than by the first. Goering, however, left the witness box jubilant after an afternoon of delight in playing to the gallery.
Again, the Tribunal had not intervened to protect Jackson or to discipline Goering. Some observers thought the judges must now act to preserve some dignity for Jackson and to assert its control over the proceedings. Maxwell-Fyfe went privately to Birkett to warn that Jackson was ‘in a terrific state’. (37) Birkett was only too anxious to restore to the trial the conduct he considered proper and efficient. He drafted a notice to be read from the bench next morning stating that the trial was ‘in danger of becoming unduly and unnecessarily prolonged because of the non-observance of the rules of giving evidence and the Tribunal gives clear and firm notice that no irrelevancy in the answering of questions will be tolerated’. (38) But his suggested course of action was not followed. Biddle and Parker opposed the idea and Lawrence drifted to their view. Birkett was convinced that the American judges were unwilling to intervene ‘for reasons personal to Jackson’; (39) Biddle only noted that they decided ‘it wiser not’. (40)
So Jackson had to face a third day without the procedural framework which he so strongly felt the Tribunal should have constructed. He began it angrily with what Biddle criticized as ‘a silly speech’, (41) condemning Goering’s snide remarks and propaganda, the way ‘the control of these proceedings is being put in the hands of the defendant’, the degeneration of the trial into what he described as a ‘bickering contest’. What he was trying to say was not silly. It would have been possible to argue cogently the need to prevent propaganda, to ensure expedition, to apply standard rules for giving evidence. But Jackson was too angry to be cogent, and his continuing resentment at Goering’s parting shot at America obscured his more appropriate points. As a result Lawrence took no notice of the underlying principles and kept trying to pacify Jackson with suggestions that ‘... surely it would be wiser to ignore’ the defendant’s asides. The best Jackson could get was Lawrence’s statement that defendants must answer ‘yes’ or ‘no’ whenever possible and might only add brief explanations when necessary, not speeches. It was not a very firm statement, and ‘brief explanations’ did not make limits clear.
Jackson was therefore not soothed by the time he resumed his cross-examination. With incredible clumsiness he came back to a matter which had been so irrelevant and mishandled the previous day – the Reich Defence Council. Not only was he flogging a dead horse, he was doing it with a rashly untested implement; a new document of which he could only say ‘I do not know what it says, except that it is the minutes of a meeting.’ Goering knew right away: it stated that he was not present at the meeting, only represented by the two State Secretaries. Having won that point so quickly, Goering could now adopt a new and disarming tactic, that of bland co-operation: agreeing with all Jackson’s points about excluding Jews from industry, agreeing that he promulgated anti-Jewish legislation. Even when he could no longer remember particular decrees he graciously accepted that he must have issued them. Of one document he was even ready to say: ‘If you have it there before you then it must be correct.’ It was a form of co-operation so patronizing that it was barely distinguishable from contempt.
It was a bad start for Jackson, but he fought back. At long last he began to deploy some of the solid evidence he held, though still not on the really central charges. Most effective in the view of journalists were his documents covering the events of ‘Kristallnacht’ on 9-10 November 1938. Goering still denied planning and taking part in the actual terrorism, but his behaviour afterwards was enough to damn him, and it was fully documented. He had denied the Jews the right to claim insurance payments for the damage they had suffered and insisted that the State would fix as low a compensation sum as possible, then give preference to claims by Party members. Jackson read Goering’s interview with an insurance expert who was told that since his profession was being saved millions of marks by the settlement ‘I should like to go fifty-fifty with you’ – a jocular remark, perhaps, but one from a patently venal and coarse man. More of Goering’s crudity was shown by the verbatim record of a disgusting dialogue when Goebbels complained that Jews took up too many seats in trains and Goering replied that this was easily remedied: kick them out and they ‘will have to sit alone in the toilet’. Goering might now try to explain that away with the comment to Gilbert: ‘I was getting irritated with Goebbels’ small details’. But next day many newspapers printed the whole conversation, with Goering replying to Goebbels’ demand that Jews be banned from holiday resorts with the fantasy that they should be given enclosures to share with ‘the various animals which are damnably like the Jews – the elk too had a hooked nose’. Documents like this wiped out the impression of the urbane Goering. They were not enough to hang the man – bad taste is not a crime, vulgarity is far distant from planning genocide. But Jackson had effectively damaged the image Goering had tried to project and had done so by employing one of the classic devices of cross-examination – luring his witness into denials and false assertions before using his evidence to expose him.
Once Goering was unbalanced Jackson could drive him back, first with crushing evidence on his part in the extermination of the Jews. No amount of wriggling by Goering about ‘total’ being mistranslated as ‘final’, and ‘complementing’ as ‘completing’ could make these documents look any better. Today Jackson could not be shaken by linguistic details. Nor could he be swayed over his evidence on Goering’s looting. Again he trapped Goering into denials, then felled him with records of whole goods trains trundling art treasures to the Field Marshal’s private collection. He followed up his advantage with good material on the stripping of Russian resources. For almost the whole day Jackson demonstrated how easily Goering could be tackled if pressure was applied in the right places and with some expertise.
But then he threw away his advantage by entangling himself in a matter which, unless it was part of a hidden strategy of which this was the first tactical move, was surely petty to the point of being ludicrous. Jackson set out to prove the intention to destroy the American ambassador’s house during the bombing of Warsaw. This was hardly a matter of great concern – except to the ambassador, perhaps – but it gave Goering a wonderful chance to show off and turn the tables on Jackson. The allegation relied on what Jackson believed were Luftwaffe aerial photographs. Perhaps they were, but Goering soon disabused him of the idea. He was, after all, a flier from the First World War, the founder and head of the Nazi Luftwaffe; aerial photography was something he knew a lot about. So he pointed out that the angle of the pictures suggested they were taken from a steeple, certainly not from the air; he explained how such aerial shots are taken; worse still he turned the pictures over and discovered they were undated, and bore no departmental stamp. He blinded the court with science, until he felt cocky enough to say: ‘However, let us assume that they were taken by the Luftwaffe so that further questions will be facilitated.’ Jackson had to give up. He switched his attack to questions on terrorism, the killing of hostages and the shooting of parachutists. But these points were made as shallowly as in the previous days of the cross-examination.
Observers such as Dean were prepared to concede that this day had been ‘better conducted than before’, (42) and the Christian Science Monitor spotted that in mid-afternoon ‘for the first time since he took the witness stand a week ago Goering appeared uncomfortable’. (43) But this was small comfort. So far no major target had been hit by the prosecution, huge resources of evidence had been neglected, and Goering had emerged relatively unscathed. He was able to tell his colleagues: ‘If you all handle yourselves as well as I did you will do all right.’ (44) Jackson’s cross-examination had been a disaster – for his own prestige and confidence and for the case in general. The real blow to the prosecution came from the fact that the Tribunal had already ruled that further cross-examination could not cover ground already touched on. Golden opportunities had gone forever.
The situation created by Jackson was hardly an enviable one for the British to inherit. Since they had successfully pressed for restriction of the number of cross-examinations, they had only expected to deal with a small number of topics – Dahlems, the Stalag Luft III case and any matters of foreign policy left by the Americans. They had always assumed that Jackson would take on the bulk of the case. Their preparations for the cross-examination of Goering had therefore been deliberately limited. On 21 February, when they first discussed the lines to pursue, Roberts thought there was no evidence to connect Goering with the murder of the fifty British airmen who had escaped from Stalag Luft III at Sagan. It was fortunate that he decided to check his impression. (45) It was even more fortunate that after hearing Goering claim he was on leave when the British prisoners were murdered, Maxwell-Fyfe, meticulous as ever, asked Roberts to look for any evidence which might refute the claim. (46) At least the Sagan atrocity had been carefully researched. Furthermore Maxwell-Fyfe had decided a week later to concentrate his attacks on foreign policy to the six brief points where he thought they had the best documentary evidence. (47) This area too had been thoroughly prepared. But faced with Jackson’s failure and the realization that they must now save the day, the British team scoured the rest of their evidence for further material which would not be cumulative to matters already raised by Jackson but still adequate to hang Goering.
Maxwell-Fyfe took over the cross-examination at an inconvenient time – 4.50 p.m., ten minutes before the session was due to finish. Goering, who had been looking tired, glanced at the clock. (48) He may have hoped to be out of the box in ten minutes and back in his cell to rest before facing a new adversary. If so, his hopes were dashed. The Tribunal ordered the session to be extended for a further half hour. This was little enough time for Maxwell-Fyfe to get very far with Goering, but he did not adopt the role of night watchman, simply playing out the remainder of the day.
Instead, he played one of his strongest strokes, Stalag Luft III. It was a textbook example of cross-examination: short, precise questions on facts, winning brief affirmative replies. The manner was calm, the approach was deceptively simple and concealed its purpose. Before long Goering had repeated that he was on leave when the killings took place and admitted that he was still accessible by telephone. It was possible for him to believe that this was the only admission Maxwell-Fyfe was looking for. But having handled his witness delicately so far, Maxwell-Fyfe now made a more brutal thrust. He came back to Goering’s claim to have been on leave and lured him into a casual statement that the leave had ended a few days before Easter. Then he struck. Easter had been about 5 April, so Goering’s leave must have ended between 26 and 29 March; but ‘these shootings of these officers went on from 25 March to 13 April, do you know that?’
Once hit, Goering began to stagger. Suddenly the man who had made such a display of comprehensive grasp of detail, such a parade of accurate memory, was saying he could not remember the name of the commandant of Sagan, or the name of the head of Inspectorate 17 of the Luftwaffe, or to whom each man reported. Maxwell-Fyfe could remind him; he performed a sparkling little cadenza on German titles, the minutiae of Luftwaffe bureaucracy. It was the turn of the prosecution to blind with science. It was still possible, though, for Goering to believe that he had merely been caught out over dates, that there was no further evidence to connect him with the Stalag Luft III murders. Maxwell-Fyfe left him with that illusion, perhaps because time was running out, and turned aside to the briefer topic of Aktion Kugel and the Luftwaffe policy of handing over all escapers except British and American to the police to be shot at Mauthausen, using guns concealed in the measuring equipment when they went to collect their prison uniforms. By the end of the afternoon journalists saw that Goering’s face had blanched. His lips were drawn into a thin line and his hands were nervously gripping the sides of the witness box. He was rattled.
And Maxwell-Fyfe was able to start the next day with the evidence he had held back on Sagan. This cross-examination was remorseless – detail after detail of Goering’s involvement was established by document after document. If Goering challenged a piece of evidence Maxwell-Fyfe would say: ‘That is a perfectly fair point,’ then produce another on the same detail – this one more damning. Goering stopped challenging. Maxwell-Fyfe then turned on Goering his own weapon of accepting responsibility: given his position in the Luftwaffe he now had to accept ultimate responsibility for the murders – in principle, just until it was proved in fact. Maxwell-Fyfe’s manner was suave, almost detached. Only occasionally did observers notice a quick smile when a lie was revealed. He exploited Goering’s previous ploy of co-operativeness: ‘Now, would you like to help me – you were most helpful last time – to find the place?’ Then he led Goering to finding extracts in documents which said ‘the Reichsmarschall was fully informed’ about the Sagan murders, and into reading affidavits that Milch had forwarded to him information and several protests about the killings. When Goering thought he had found a gap and suggested that the donor of an affidavit had never been asked whether he checked if this information had really been handed on, Maxwell-Fyfe was ready for him: ‘Oh yes he was’ – and read the reply. Goering was allowed no time to recover his balance or to divert the proceedings with long statements. The moment he tried to add to the barest explanation Maxwell-Fyfe cut him short: ‘I have put my question ... I pass on to another point.’ That morning Goering behaved like the school bully confronted by a Tom Brown. For months he had bragged, hurled threats at witnesses, alternately terrified or cajoled his timid henchmen. Suddenly the essential childishness and vulnerability of the bully was exposed; when challenged he first resorted to bluster but rapidly became abject. He had no answer to accusations and evidence on aggression towards Poland, and it took only minutes to trap him into saying first that Ribbentrop knew nothing about the negotiations with Dahlerus, then that he had resented them.
‘Well, now,’ said Maxwell-Fyfe after calling attention to this particular tangle, ‘I want you just to help me on one or two other matters,’ and he bombarded him with documents on the deliberate violation of the neutrality of Holland and Belgium. Goering had no defence. Next he was snared into asserting that Germany had always maintained the best of relations with Yugoslavia before being shown incontrovertible evidence of longstanding intentions to invade. Goering had no answer to that, nor to evidence of his knowledge of atrocities against partisans. He scored one small point – he noticed that one document was marked ‘copy’ and had only a typed signature (the Tribunal finally ruled it inadmissible and it was struck from the record). Then he faced a barrage of documents on Auschwitz and on the use of slave labour. The documents were too convincing for anyone to take seriously Goering’s plea that he knew nothing about such matters. At worst Maxwell-Fyfe had proved that the head of the Four Year Plan was guilty of criminal negligence if he did not know what crimes were being committed in its name; at best he had shown beyond reasonable doubt that Goering had been fully aware of the barbarity.
Goering’s fists remained clenched, his face became ‘strained and congested’. (49) ‘Goering’s denials,’ said The Times, ‘sounded far less plausible than at any time ... he had never sounded less sure of himself.’ (50) He struggled to return to ground on which he felt more secure, asserting his loyalty to Hitler. ‘I believe in keeping one’s oath not in good times only but also in bad times when it is much more difficult,’ a noble sentiment, but one implying less confidence in his Führer and himself than he had previously maintained. Again and again Goering insisted that Hitler had known nothing about the extermination camps, that Himmler kept such things secret, that the Nazis were following ‘a policy of emigration, not liquidation’. To no avail. Maxwell-Fyfe read Hitler’s comments to Admiral Horthy in 1943. The Jews, said the Führer, had been treated as tuberculosis bacilli with which a healthy body might have been infected. Ribbentrop had added the recommendation to the Hungarians that all Jews be exterminated or sent to concentration camps; ‘there was no other possibility.’ Maxwell-Fyfe read him the minutes of a meeting in 1942 when he had been told, with some mathematical inaccuracy, ‘there are only a few Jews left alive. Tens of thousands have been disposed of.’
Maxwell-Fyfe wrote later that Goering had been ‘the most formidable witness’ he had ever examined. (51) But he had had years of experience, and the professional expertise and the tricks of the trade which are second nature to a competent barrister had served him well. He was not one of the great practitioners of the art and this was not even his best performance at Nuremberg, but thanks to thorough preparation and the ability never to lose ascendancy over his witness he had scored a success at a crucial moment of the trial and in difficult circumstances. Faced with sustained and methodical competence rather than brilliance, Goering had crumbled. Curiously Maxwell-Fyfe’s performance got a muted reaction. The American Press was virtually silent. Dean’s report was not rapturous, but it was, perhaps, realistic: ‘The effect of the British prosecution has been to knock Goering off his perch. He will not find it easy to re-establish himself.’ (52)
And, indeed, by the time Goering had undergone cross-examination by Rudenko for an afternoon and part of the following morning he left the box ‘with a wilted and bedraggled air’. (53) Rudenko’s courtroom style had been in noticeable contrast to that of Maxwell-Fyfe. It comes as a surprise to hear his voice, soft and gentle, rather mellifluous. What he actually said, however, was harsh, assertive and harassing. All the Russian prosecutors went into attack, as Wheeler-Bennett described them, like a heavy armoured column. Rudenko’s questions to Goering were typical: slightly rephrased assertions expecting crushed confession. They were often hammered: ‘Have you forgotten that document? Have you forgotten about that?’ Given this approach Goering seemed to perk up for a time, and quite enjoy himself again, drawing attention to sections of documents which had not been read, sneering at Rudenko’s lack of German, needling him with the charge that 1,680,000 Poles and Ukrainians had been transported by the Russians. Even so, the documents on his aggressive intent towards the USSR and the vicious exploitation of the territories Germany conquered were more than strong enough to withstand Goering’s restored panache.
Back in his cell, Goering was far from jubilant about his performance, though he tried to put a good face on it. ‘Well,’ he kept saying, ‘I didn’t cut a petty figure, did I? Don’t forget I had the best legal brains of England, America, Russia and France arrayed against me with their whole legal machinery – and there I was alone.’ (54) Others would have agreed with him. He was certainly not a petty figure, indeed a most impressive if rebarbative one. As The Times put it: ‘If nothing but his subtlety and powers of reasoning were involved, Goering would leave the box a far bigger figure than when he entered it.’ (55) But it went without saying that Goering’s deeds had been on trial, not his personality. The concern of the court was not with his strength of character but the strength of the evidence which supported or rebutted the allegations against him.
In the tight little legal world of Nuremberg, however, this fundamental issue was temporarily forgotten. The actors on the courtroom stage became so obsessed with details of professional skill that they lost track of the purpose and quality of the play. In recent days all the talk had been not of evidence and admissions but of failure and success in presentation. In particular the topic endlessly debated had been that of Jackson’s cross-examination.
All the reviews of Jackson’s performance were hostile – he had never mastered his witness or his material, lacked the essential skill to frame questions so as to allow a witness only one answer. For some critics, Jackson’s failure had been entirely the result of his inadequate technique: moving advocate, able judge, inspiring crusader for international law he might be; cross-examiner he was not. Perhaps he never had been, or perhaps his skills had fallen into desuetude. Whatever the reason, he lacked what Maxwell-Fyfe called ‘the sixth sense of the cross-examiner which subconsciously anticipates the workings of a witness’s mind.’ (56)
Other critics, however, thought that professional inadequacies were less of an explanation of the failure than psychological factors. Some pointed out that Jackson could hardly expect to keep control of Goering when he could not keep control of himself. Goering had driven him into loss of temper – the result had been the loss of the cross-examination. Jackson’s temper certainly had a short fuse. It had been noticeable in the days of the London Conference that he found it bewildering, indeed intolerable if others did not share his moral convictions. Faced with the cynicism of Goering, with the man’s pride in his turpitude and shameless justification of so much that Jackson found abhorrent, it is possible that Jackson’s fuse simply detonated. Furthermore, others considered that he had been at a great psychological disadvantage in coming to Nuremberg from the protected environment of the United States. He had not lived with the Nazi mentality, had never been obliged to question and temper his own political beliefs to counter it; the first major encounter with Nazi thinking had overwhelmed him. Several observers had noted Goering’s infinitely greater knowledge and understanding of everything they had battled over – perhaps more homework would have enabled Jackson to challenge him, or at least give the impression of depth which Maxwell-Fyfe could simulate. Some, like Beaumont at the Foreign Office, believed that a European would have found Goering an easier task, though he had to admit that ‘politically the advantages of having the USA in the forefront of this trial are overwhelming,’ and that since the Americans had been so instrumental in setting up the trial and had provided the resources to run it, there could have been no possibility of denying them the leading defendant. (57)
But as the inquest on the Goering cross-examination went on, argument increasingly raged on whether Jackson’s failure had not been caused by the Tribunal itself. Should the judges have intervened at the very beginning to insist that Goering give brief, factual answers? In which case, it was argued, Jackson would never have been reduced to loss of temper and control. Maxwell-Fyfe thought it was wrong to blame the judges. ‘If Goering – who after all was on trial for his life – could run rings round prosecuting counsel, that was a matter for counsel to put right without assistance from the Tribunal.’ (58) But this uncompromising view was rare. Most people, in varying degree, attributed blame for Jackson’s problems to the judges. Hartley Shawcross criticized ‘the weakness of the Tribunal in allowing excess latitude to Goering.’ (59) Birkett said in private that Lawrence should have controlled the witness, and he continued to maintain that his draft ruling should have been read and applied. (60) Had his advice been taken, Goering ‘would certainly have been much more under control and the lost confidence of Mr Justice Jackson would have been restored for the ultimate benefit of all concerned in this trial.’
American commentators and lawyers in particular stressed that in their own courts judges would never have permitted a witness to avoid direct replies and to romp into lengthy and often irrelevant explanations. This was certainly Jackson’s view. It was expressed in his angry demands to the Bench for a ruling and to his son, William, who remembers his father’s belief that Lawrence’s refusal to intervene had made an effective cross-examination impossible. (61) There were those who said it was Lawrence, not Jackson, who had not done his job properly. Yet the extent to which any judge should intervene and shape court proceedings is a matter of personal judgement and style, whatever formal procedures are laid down. It may be desirable to assert the Bench’s authority and establish limits; at the same time it is also desirable to avoid any accusation of intervening to shackle one side or another. Those intimate with Lawrence say that he was determined above all that the Nuremberg Tribunal should give a fair hearing to the defence – on that its final success or failure would be judged. If Lawrence was thought to have erred in giving too much scope to a defendant, then he would have felt he had erred on the right side; better to shoulder some personal criticism than have the whole trial dismissed as partial to the prosecution. As chairman of the Bench and spokesman for its views, Lawrence often drew the fire of the Tribunal’s critics and sheltered his colleagues. With the exception of Birkett (and the Russians seem to have found themselves in strange company on this occasion) none of them had wished to impose rigid restraints on Goering’s testimony.
No single explanation will finally settle the question of what went wrong with Jackson’s cross-examination of Goering. The answer consists of a blend of the possible ingredients according to individual taste. It is, however, clear that the impact of his failure was a personal tragedy for Robert Jackson, overshadowing the rest of his time at Nuremberg. Only in his final speech did the old mastery and passion revive. Until then he behaved like Achilles in his tent, bitter, impatient with the trial and irreconcilably estranged. Biddle, in a letter to his wife, noted Jackson’s mood during Maxwell-Fyfe’s cross-examination of Goering. It is a letter which shows the limits of his sympathy for Jackson, who always nurtured a suspicion that Biddle bore personal malice towards him. Biddle wrote of Jackson ‘sitting by, unhappy and beaten, full of a sense of failure ... I know he has it in for me He knows that the Court are apt to follow me, at least to an extent, and he thought we should have “protected” him. But I have felt his opposition from the beginning, and it springs chiefly, Herb [Wechsler] thinks, from the reversal of our positions. Where I have been opposed to him [in court decisions] ... I am certain that I was right. I have repeatedly asked Bob to the house, but he never comes – and I am afraid we are no longer friends.’ Then he added a not untypical feline comment: “Just now I hear he is doing his best to prevent Tel Taylor’s wife from coming back with him; and one cannot help suspecting that the reason for this is because he doesn’t want his own! Why else?’ (62)
The wrangles between the two men now became more frequent, and more acrimonious. Biddle jotted in his notes in the second week in April that Jackson ‘came to see Parker and me after lunch in a very wild and uncontrolled mood. Apparently the criticism of his cross-examination of Goering had got way under his skin. He threatens to resign – this is not new.’ He recounted Jackson’s complaints – a weird assortment of technical arguments about whether defence counsel could print all the documents they wanted, old resentments about Biddle getting a new house, fresh criticisms of Lawrence’s tolerance towards defendants. ‘Parker and I had to cool him off,’ wrote Biddle. ‘He’s very bitter. He seems to me to be very unfair and unhappy. I am sorry for him.’ (63) It was hard not to be. Jackson’s heart was always on his sleeve. Birkett noticed how his behaviour in court showed his continuing misery in mid-April. ‘He is a thoroughly upset man because of his failure in cross-examining Goering from which so much was expected. He has taken it very badly indeed and his instinct is to run away from the scene of his failure ...’
Birkett then added a comment which puts the whole matter into perspective: ‘This trial is regarded as a spectacle, a kind of gladiatorial show, with the prominent Nazis like Goering taking the place of the wild beasts and prosecuting counsel as the gladiators and baiters.’ (64) This was all too true. Any trial can become a spectator sport, and this one was drawing the attention of the world. The general public was too little versed in legal matters, too impatient to read the evidence carefully. Consequently it judged the proceedings at the most superficial level – goodies, baddies, stars and flops. In this atmosphere it was not always possible for those working at Nuremberg to keep a sense of proportion. The controversy over Jackson’s cross-examination and the Tribunal’s handling should not have concealed the paucity of Goering’s defence, but it did. Prosecution and defence counsel talked as if there had been a disaster, with irreparable damage done to the entire prosecution case. Even Birkett thought the trial as a whole would never recover since the defence would all now follow Goering’s unrestrained manner in the witness box. A feature in the New York Times on 23 March which smacks of briefing by American counsel spoke of Jackson’s fears of Nazis at large taking heart, of defence counsel becoming increasingly insolent and defendants planning to spin out the trial to farcical length, and of the Allied Control Council being deeply disturbed by the turn of events. (65) The Cassandras who had always warned that a trial would be a platform for Nazi propaganda, or that it would degenerate into protracted farce, looked as if they might be vindicated.
But reactions like this were merely adding gusts to what was already only a storm in a tea cup. The cross-examination of Goering was a disaster for Jackson personally, but not for the prosecution case, nor the trial as a whole, still less for the future of Germany. It had at least been valuable in demonstrating lack of partiality by the Tribunal to the prosecution. Those defence counsel who wished could take comfort in Jackson’s discomfiture; those who wanted to continue to complain about the unfairness of the proceedings now did so with less chance of winning sympathy. It was not inevitable that the trial would drag on interminably. On 22 March, the Tribunal announced that no defendant would be allowed to go over ground already covered by Goering. There must be no repetition of the history of Nazism or the justification of its policies. The decision mirrored the prohibition placed on the prosecution not to cover matters already dealt with by colleagues. However heroic a stance Goering had tried to adopt, it had not wrought political miracles in his country – those who affirmed Nazi beliefs stuck to them, those who were apathetic or too exhausted or hungry to respond had not been roused. It had not even had a permanent effect on his fellow defendants. Some who had always loathed him and shrugged off his influence still did so, with a little grudging praise for his acceptance of responsibility; others who had always been apprehensive about their own defence tended to measure themselves against Goering’s stature and feel even smaller. Counsel might wish their clients had something of Goering’s fighting spirit, but what they most needed was convincing evidence to break the prosecution case – and that was difficult to find. Seyss-Inquart summed up the whole Goering affair – and the trial itself-most accurately and concisely: ‘All that talking isn’t going to do him any good. They have it all in black and white.’ (66) The decisions of the Tribunal, the final judgement of the trial, as opposed to the assessment of the general public, would in the end be based on the black and white of the documents, not on the colour of personalities.
1 Several newspapers
2 The Times, 8 March
3 Evening Standard, 8 March
4 Gilbert
5 New York Times and Daily Express, 9 March
6 From IMT Vol. IX – as are all quotations from the trial in this chapter
7 Daily Express, 9 March
8 Evening Standard, 8 March
9 Gilbert
10 New York Times, 11 March
11 FO 371. 57542
12 New York Herald Tribune and others
13 FO 371. 57542, 14 March
14 The Times
15 Gilbert
16 New York Times
17 Dean cable, 11 March. FO 371. 57542
18 Minute, 12 March. FO 371. 57542
19 Daily Telegraph, 13 March
20 Cooper
21 Interview with Selkirk Panton Daily Express, 17 March
22 Gilbert
23 FO 371. 57542
24 Manchester Guardian, 13 March
25 Daily Express, 17 March
26 Gilbert
27 FO 371. 57542
28 Quoted by Montgomery Hyde
29 Several newspapers
30 Daily Express, 18 March
31 Quoted by Montgomery Hyde
32 The Times and others
33 FO 371- 57542
34 Daily Telegraph, 14 March
35 The Times, 14 March
36 Dostert memo, 20 March. Jackson Papers, Box 231
37 Biddle Notes on Evidence. Vol. III. Biddle Papers, Box III
38 Quoted by Montgomery Hyde
39 Quoted by Montgomery Hyde
40 Biddle op. cit.
41 Ibid
42 FO 371. 57542
43 Christian Science Monitor
44 Gilbert
45 British prosecution minutes, 21 February
46 British prosecution minutes, 16 March
47 British prosecution minutes, 19 March
48 Daily Herald
49 Daily Telegraph
50 The Times
51 Kilmuir
52 FO 371. 57542
53 New York Times
54 Gilbert
55 The Times
56 Kilmuir
57 Minute, 20 March. FO 371. 57542
58 Kilmuir
59 Shawcross
60 Quoted by Montgomery Hyde
61 Conversation with William Jackson
62 Letter to Mrs Biddle, 24 March. Biddle Papers, Box 19
63 Notes on Evidence Vol. III. Biddle Papers, Box III
64 Quoted by Montgomery Hyde
65 New York Times
66 Gilbert