Nuremberg Lives On: How Justice Jackson's International Experience Continues to Shape Domestic Criminal Procedure

Loyola University Chicago Law Journal, Dec 2014

The end of Germany’s participation in World War II came with its formal surrender on May 8, 1945. After extensive debate over what would come of top Nazi leaders, twenty-two Nazi defendants were tried and ultimately convicted after 216 days of trials held in Nuremberg spread across eleven months between November 1945 and 1946. Associate Supreme Court Justice Robert H. Jackson took a leave of absence from the Court to lead the trial’s prosecutorial effort. Decades of scholarship have considered and evaluated the Nuremberg trials alongside Jackson’s role in them. But, no article has evaluated how Justice Jackson’s experience as Nuremberg Chief Prosecutor shaped his view of domestic criminal procedure issues when he returned to the Court after the Nazi trials. This Article makes two arguments. First, that Justice Jackson’s experience as Nuremberg Chief Prosecutor transformed his thinking about domestic criminal procedure. Second, that Jackson’s transformative Nuremberg experience remarkably continues to impact—even today—the law on search and seizure, confessions, and right to counsel. More than a handful of his post-Nuremberg opinions remain consistently cited by lower courts and the Supreme Court alike. Accordingly, this Article concludes, Nuremberg did more than affect international criminal law. Given that so many of Jackson’s post-Nuremberg opinions continue to impact everyday citizens, the famous war criminal trials that happened more than sixty years ago remain modernly and domestically relevant.

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Nuremberg Lives On: How Justice Jackson's International Experience Continues to Shape Domestic Criminal Procedure

Loyola University Chicago Law Journal Nuremberg Lives On: How Justice Jackson's International Experience Continues to Shape Domestic Criminal Procedure Brian R. Gallini 0 0 Assoc. Dean & Prof. of Law, University of Arkansas-Fayetteville School of Law , USA Part of the Criminal Procedure Commons Recommended Citation - Article 2 Follow this and additional works at: http://lawecommons.luc.edu/luclj Nuremberg Lives On: How Justice Jackson’s International Experience Continues to Shape Domestic Criminal Procedure Brian R. Gallini* The end of Germany’s participation in World War II came with its formal surrender on May 8, 1945. After extensive debate over what would come of top Nazi leaders, twenty-two Nazi defendants were tried and ultimately convicted after 216 days of trials held in Nuremberg spread across eleven months between November 1945 and 1946. Associate Supreme Court Justice Robert H. Jackson took a leave of absence from the Court to lead the trial’s prosecutorial effort. Decades of scholarship have considered and evaluated the Nuremberg trials alongside Jackson’s role in them. But, no article has evaluated how Justice Jackson’s experience as Nuremberg Chief Prosecutor shaped his view of domestic criminal procedure issues when he returned to the Court after the Nazi trials. This Article makes two arguments. First, that Justice Jackson’s experience as Nuremberg Chief Prosecutor transformed his thinking about domestic criminal procedure. Second, that Jackson’s transformative Nuremberg experience remarkably continues to impact—even today—the law on search and seizure, confessions, and right to counsel. More than a handful of his post-Nuremberg opinions remain consistently cited by lower courts and the Supreme Court alike. Accordingly, this Article concludes, Nuremberg did more than affect international criminal law. Given that so many of Jackson’s post Nuremberg opinions continue to impact everyday citizens, the famous war criminal trials that happened more than sixty years ago remain modernly and domestically relevant. * Associate Dean & Professor of Law, University of Arkansas–Fayetteville School of Law. The author first thanks Britta Stamps, Trenton Rigdon, and Amos Gregory for their invaluable research assistance in preparing this Article. Second, the author thanks Professors John Q. Barrett, Laurent Sacharoff, and Dustin Buehler for their helpful comments. Third, the author thanks Camille Forrest and Linda Gallini for their thoughts on how to explore this topic. Fourth, the author thanks the University of Arkansas–Fayetteville School of Law’s library staff— especially Lorraine Lorne—for their invaluable research assistance. Fifth, the author thanks the School of Law for a summer research grant that provided support for this project. Last, but far from least, the author thanks his wife for her tremendous support. 1 2 Loyola University Chicago Law Journal INTRODUCTION On a pleasant evening in April 1945, Joseph Goebbels, the Nazis’ Propaganda Minister, read two horoscopes: one from January 30, 1933 (the day Hitler took office) and the other from November 9, 1918 (the day of the Weimar Republic’s birth).1 The horoscopes, Goebbels concluded, remarkably predicted the outbreak of war in 1939, German victory in 1941, difficulty in the early months of 1945, and a temporary success in the second half of April followed by Germany’s rise in 1948.2 Fortified by these predictions of the stars, Goebbels on April 6, 1945, sent the following to the remaining Nazi forces: The Fuehrer has declared that even in this very year a change of fortune shall come . . . . The true quality of genius is its consciousness and its sure knowledge of coming change. The Fuehrer knows the exact hour of its arrival. Destiny has sent us this man so that we, in this time of great external and internal stress, shall testify to the miracle . . . .3 President Roosevelt was dead nearly a week later—on April 12, 1945—and Goebbels was certain that Roosevelt’s death was the “temporary success” the horoscopes predicted.4 He boldly brought out the finest champagne, congratulated Hitler and other top officials, and shared his certainty that Roosevelt’s death marked a turning point for 1. WILLIAM L. SHIRER, THE RISE AND FALL OF THE THIRD REICH: A HISTORY OF NAZI GERMANY 1108–09 (Simon & Schuster 1960). 2. Id. at 1109. 3. Id. 4. Id. at 1110. Nuremburg Lives On 3 Germany in the war.5 How wrong he was. As the Nazis toasted Roosevelt’s death, Russian troops closed in on Berlin with alarming speed.6 The reality was not a turning point that favored the Nazis; rather, by that point, victory in World War II was a near certainty for the Allies.7 As if any confirmation of that was necessary, Hitler’s celebration of Roosevelt’s passing was fleeting; he exchanged congratulations with his top officials on April 12 and was dead by his own hand before the month was over.8 The end of Germany’s participation in World War II came with (...truncated)


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Brian R. Gallini. Nuremberg Lives On: How Justice Jackson's International Experience Continues to Shape Domestic Criminal Procedure, Loyola University Chicago Law Journal, 2014, Volume 46, Issue 1,