The Cross-Examination : The Man Who Shot Liberty Valance

For those familiar with John Ford’s 1962 film, The Man who shot Liberty Valence, America’s Robert Jackson played Ransom Stoddard to David Maxwell Fyfe, Britain’s ‘Tom Domiphon.’

In March 1946, British prosecutor David Maxwell Fyfe cross-examined Hitler’s deputy, Hermann Göring  at the Nuremberg War Crimes Trials. In this 75th anniversary year since their encounter, Tom Blackmore reflects on the significance of the man who shot Liberty Valance.

Sadiq Khan wrote in the New Statesman some years ago :

“As deputy chief prosecutor at the Nuremberg trials, Maxwell Fyfe was responsible for one of the most noted cross-examinations in history when Hermann Göring took the stand.”

Sadiq Khan, The New Statesman 2011

Only last year the Faculty of Advocates in Edinburgh described it as

“widely considered the most significant cross-examination of modern times.”

Faculty of Advocates

These are accolades for David Maxwell Fyfe’s performance at the Nuremberg War Crimes Trials when he confronted Göring late on the afternoon of March 20th 1946.  

The quotes above pale when compared to the hysteria of the press shortly after these exchanges. 

Guy Ramsay from the Mail wrote :

“Then rose to cross-examine Herman Goering the British Prosecutor, Sir David Maxwell Fyfe, his dark hair receding, his heavy face stern, his massive body impressive, his voice steady and controlled.  Ruthless as an entomologist he pinned the squirming wriggling German decisively to every point he strove to evade reducing his sudden spasms of legal quibbling, his spots of rhetoric to the hollow shams they were.  Fyfe’s skills in cross-examination alone saved the reputation of the court.”

Guy Ramsay, The Mail 1946

And Freddy Birkenhead writing as Atticus in The Times went further:

“The British delegation dominates, and the genius of the place is Sir David Maxwell Fyfe, who so far excels the other prosecutors that he has almost played them off the stage.  Indeed his skill in cross-examination has alone prevented the Germans from turning the court into a theatre for the display of patriotic histrionics.”

Atticus, The Times 1946

It can confidently be said that the cross-examination went well, but in the aftermath, its impact grew from being part of the folklore of Nuremberg to igniting dreams of international justice.

The Nuremberg story revolves around the American chief prosecutor Robert Jackson whose vision fuelled the Nuremberg Trials and who set the Tribunal alight with his opening speech. At the time of the Trials, Jackson was a long time away from a Courtroom, rusty at cross-examination, very probably physically impaired, and determined to prove conspiracy between the leading Nazis (conspiracy is hard to prove in a dictatorship in which orders flow one way). Consequently, Göring was able to boss Jackson, who turned to the Tribunal for support and felt let down when none was forthcoming.

For those familiar with John Ford’s 1962 film, The Man who shot Liberty Valence, Jackson played Ransom Stoddard to Maxwell Fyfe’s Tom Domiphon. Jackson’s idealism radiated through the Tribunal as he brought law and order back to a desolate Continent. There was something of the improvised Wild West Court House about Nuremberg. 

The Sketch, 1946

Except of course, that it is Tom Domiphon who shoots Liberty Valence. Maxwell Fyfe acted as chief prosecutor in Nuremberg in the absence of Hartley Shawcross, and he had the British team prepare their cross-examination forensically as they sought to prove murder, aggressive war, and even genocide. 

Maxwell Fyfe spent more time in Court than anyone apart from the judges, he tamed the extraordinary environment of arc lights and translation babble and, he prosecuted what he could prove, usually with the evidence of the Nazis themselves.

And so he shot Liberty Valence.

However, there was a little more to it than that. Rebecca West offered this insight when reporting the trials:

“In the examination and cross-examination of witnesses, Sir David Maxwell Fyfe holds the honors. This gentle and heavily built man, who never exempts himself from the discipline of fairness, drives witness after witness backward, step by step, till on the edge of some moral abyss they admit the truth.”

Rebecca West, New Yorker Magazine 1946

Maxwell Fyfe was fired by his own, very Scottish and very hidden ideals. In this case, it was the desire to reawaken natural justice in Europe. Natural justice depends on fairness and proper procedure to protect the defendants. All qualities that had been in short supply in Nazi Germany.

Jackson was wrong. Europe was no Wild West. It was an epicentre of the civilization of the world. And Europeans had shared values born out of more than a thousand years of neighbourliness and conflict.

Whilst acknowledging that :

“The barbarian is never behind us but always underneath us ready to rise up.”

David Maxwell Fyfe

Maxwell Fyfe later wrote:

“I believe if anyone had suggested to three quarters of the defendants in 1933 that they should do the things they did without a tremor of conscience in 1943, they would have refused with genuine indignation.”

David Maxwell Fyfe

For most of the defendants, there was a moral abyss, and for many, they chose truth, or a version of it, over a descent into that black hole. They felt guilt.

And this was the beginning of the reconciliation of Europe.

As Harold Nicholson wrote

‘In the courtroom at Nuremberg, something more important is happening than the trial of a few captured prisoners. The inhuman is being confronted with the humane, ruthlessness with equity, lawlessness with patient justice, and barbarism with civilisation’. 

Harold Nicholson

An excerpt from the transcript of David Maxwell Fyfe’s cross-examination of Hermann Goering is available here

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