On Nov. 21, 1945, U.S. Supreme Court Justice Robert H. Jackson rose to make his opening statement in the criminal trial of Nazi war criminals in Nuremberg, Germany. It would be difficult to conceive of a graver criminal case – or a larger stage for a prosecutor – than one aimed at holding the agents of the most evil regime in history accountable for their actions.
Jackson is fondly remembered in my profession for a quote about the qualities of an outstanding prosecutor that comes from an April 1, 1940 speech he gave while serving as U.S. Attorney General:
“The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”
While the quote is quite memorable, Jackson should be remembered for more than one paragraph of one speech.
Jackson never went to law school. Instead, he read for the bar and worked as a self-proclaimed “country lawyer” in his upstate New York hometown. By the end of his career, however, on the strength of his own abilities, he had served as solicitor general, attorney general and a supreme court justice. Given his reputation for fairness and integrity, President Franklin Roosevelt asked him to serve as the lead prosecutor for the Nuremberg Trials.
Never before had such a trial been attempted. In previous wars, the victors had simply executed the leaders of the vanquished foe. Jackson, however, thought it morally imperative that a trial be held – a trial that would temper the hand of vengeance and force the Allies to prove the individual culpability of the Nazi leaders beyond a reasonable doubt before administering punishment.
In the first paragraph of his opening statement, Jackson said:
“The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish are so calculated, so malignant and so devastating that Civilization cannot tolerate their being ignored because it cannot survive them being repeated. That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of law is one of the most significant tributes that Power has ever paid to Reason.”
The capital letters are Jackson’s choice and what he believed to be the animating force behind the Nuremberg trials. In addition to being simple and powerful, the last words of this opening paragraph serve as the paradigm of what criminal prosecution is all about. In our criminal justice system, Power pays tribute to Reason.
Although the police have the physical power to arrest someone and detain them indefinitely without charge, reason and the U.S. Constitution require due process protections such as a speedy and public trial and a grand jury indictment. Although it might be expedient to presume the accused guilty and require proof of innocence, reason demands the converse: that the accused be presumed innocent, that he need not utter a single word in his own defense and that the prosecution bear the burden of proving every element of each charged offense to the satisfaction of a unanimous jury of the defendant’s peers.
In the Nuremberg trials, 22 defendants were tried. Twelve were convicted and sentenced to death. Seven defendants were convicted and sentenced to prison terms.
More telling is the fact that three defendants were acquitted and freed. That three accused Nazi war criminals – people who easily could have been summarily hanged without any pretense of a trial – were instead acquitted is a shining example of the rule of law and Power’s submission to Reason.
I will explore the phrase “the rule of law” in upcoming months.
The writer is Commonwealth’s Attorney for Alexandria.
