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
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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.
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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
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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)