The Structure of the Trial

In discussions of the film it is frequently mentioned that the trial in the film is based on an actual historical event—The Judges Trial from March 5 to December 4, 1947, which was the third of the twelve war crimes trials conducted by U.S. military tribunals subsequent to the trial of the major war criminals before the International Military Tribunal. In the official documents the word “Judges” is sometimes used with an apostrophe (Judges’) but usually is not. I believe either way can be construed as grammatically valid. But regardless of that I will simply go with the majority usage as a matter of convenience.

The validity of the overall comparison of the film trial to the historical trial is well established by comparing specific elements of the film trial to the record and transcript of the historical trial. The most readily accessible record of that trial is the Trials of War Criminals before the Nuremberg Military Tribunals, Volume III, “The Justice Case” which contains over 1200 pages of documentation. Throughout the record there are variations in the spelling of various German proper names, such as Nuremberg and Nuernberg or Joseph and Josef. An effort will be made to be consistent here. Volume III is part of a series of volumes covering all twelve of the trials before the Nuremberg Military Tribunals (NMT).

The series is an abridged but reliable version. As the work itself explains:

The 12 cases required over 1,200 days of court proceedings and the transcript of these proceedings exceeds 330,000 pages, exclusive of hundreds of documents, books, briefs, etc. Publication of all of this material, accordingly, was quite unfeasible. This series, however, contains the indictments, judgments, and other important portions of the record of the 12 cases, and it is believed that these materials give a fair picture of the trials, and as full and illuminating a picture as is possible within the space available.—Quoted from Trials of War Criminals before the Nuremberg Military Tribunals, Volume III (hereafter NMT III) pages III-IV

The film trial necessarily had to be reduced in scale from the historical trial. Historically indictments were made against 16 men. One of the accused, Carl Westphal, committed suicide in 1946 after the indictment but before the beginning of the trial. The other 15 were brought to trial. Each defendant had his own defense counsel and in most cases an assistant defense counsel. They were as listed on NMT III page 14:

1. Josef Altstoetter (defendant), Dr. Hermann Orth (defense counsel), Dr. Ludwig Altstoetter (assistant defense counsel)

2. Wilhelm Von Ammon (defendant), Dr. Egon Kubuschok (defense counsel), Dr. Hubertus Janicki (assistant defense counsel)

3. Paul Barnickel (defendant), Dr. Edmund Tipp (defense counsel), Rudolf Schmidt (assistant defense counsel)

4. Hermann Cuhorst (defendant), Dr. Richard Brieger (defense counsel), Karl Hassfuerther (assistant defense counsel)

5. Karl Engert (defendant), Dr. Hanns Marx (defense counsel to July 31, 1947), Dr. Heinrich Link (defense counsel from July 31, 1947), no assistant defense counsel listed

6. Gunther Joel (defendant), Dr. Carl Haensel (defense counsel), Herbert Thiele-Fredersdorf (assistant defense counsel)

7. Herbert Klemm (defendant), Dr. Alfred Schilf (defense counsel), Dr. Erhard Heinke (assistant defense counsel)

8. Ernst Lautz (defendant), Dr. Heinrich Grube (defense counsel), no assistant defense counsel listed

9. Wolfgang Mettgenberg (defendant), Dr. Alfred Schilf (defense counsel), Dr. Erhard Heinke (assistant defense counsel)

10. Guenther Nebelung (defendant), Dr Karl Doetzer (defense counsel), Gerda Doetzer (assistant defense counsel)

11. Rudolf Oeschey (defendant), Dr. Werner Schubert (defense counsel), Dr. Karl Pribilla (assistant defense counsel)

12. Hans Petersen (defendant), Dr. Rudolf Aschenauer (defense counsel), Dr. Otfried Schwarz (assistant defense counsel)

13. Oswald Rothaug (defendant), Dr. Rudolf Koessl (defense counsel), Adolf Huettl (assistant defense counsel)

14. Curt Rothenberger (defendant), Dr. Erich Wandschneider (defense counsel), Dr. Helmut Bothe (assistant defense counsel)

15. Franz Schlegelberger (defendant), Dr. Egon Kubuschok (defense counsel), Dr. Hubertus Janicki (assistant defense counsel)

Most of the defense teams were engaged to defend one and only one defendant. In two instances a defense team was committed to the defense of two defendants. Kubuschok and Janicki defended both Von Ammon and Schlegelberger. Schilf and Heinke defended both Klemm and Mettgenberg

A mistrial was declared in the case of defendant Engert who was unable to attend most of the proceedings due to poor health. Of the remaining 14 defendants ten were convicted on one or more of the counts against them. The other four were acquitted on all counts.

By contrast the film trial had four defendants—the fictional characters Emil Hahn, Friedrich Hoffstetter, Werner Lampe and Ernst Janning.

In other respects great effort was made by Kramer to impart the look and feel of the historical trial to the film trial. Karen Sharpe Kramer explains that:

About 15 percent of the film was made in Nuremberg and Berlin. Stanley wanted to make the entire thing in Nuremberg and Berlin. He wanted to use the courtroom that was actually used. But the courtroom was in use and he couldn’t. So he had to take measurements and pictures and all that and he came and duplicated it here in Hollywood. And I think that transition—I don’t think I could ever tell the difference.

How well he succeeded can be seen by comparing the film’s courtroom to the historical courtroom, as documented in NMT III. There is a photograph of the courtroom on page 10 of that volume. The caption reads in full:

The defendants in the dock. Left to right: front row. Franz Schlegelberger, Herbert Klemm, Curt Rothenberger, Ernst Lautz, Wolfgang Mettgenberg, Wilhelm Von Ammon, Gunther Joel, Oswald Rothaug, Paul Barnickel, Hans Petersen, Guenther Nebelung. Back row. Hermann Cuhorst, Rudolf Oeschey, and Josef Altstoetter. In front of defendants’ dock are defense counsel. Interpreters are behind glass partition at upper right.

The film’s courtroom arrangement is the same. The film’s defendants are seated in the same location as the historical defendants. The film’s defense counsels are positioned exactly the same way as the historical defense counsels, seated directly in front of the defendants. The film’s interpreters are located in exactly the same place complete with glass partition, to the left of the defendants and defense counsels.

There are seven defense counsels in the film, easily identifiable as such by the barrister gowns they all wear. These gowns are the same as the ones which the page 10 photograph documents the historical defense counsels as wearing. This can be seen with conclusive clarity by comparing another photograph on page 12 (captioned: Defendant Hermann Cuhorst, on the witness stand, conferring with defense counsel) with any close up shot in the courtroom of Hans Rolfe, defense counsel for Janning. The gowns worn by the historical defense counsel, presumably Brieger, and the fictional Rolfe are identical. Rolfe is referenced for this comparison because he has much more screen time than any of the other defense counsels, and this provides more opportunities to observe his gown. But any of the other film’s defense counsels could have been used for comparative purposes since they in the film and the historical defense counsels as documented in NMT III all wear the same gowns.

The film’s defense counsels are seated in front of the defendants in a way that implies that Hahn, Hoffstetter and Lampe each had two counsels. This is entirely consistent with the historical trial where most of the defendants had a defense counsel and an assistant defense counsel. Janning only has Rolfe for counsel which again is consistent with the documented historical fact that two of the defendants had only one counsel.

Not only does the film duplicate the look of the historical trial, it also recreates the wording. This is easily demonstrated with a few sample comparisons.

Sample 1: Calling the court into session.

Fictional Captain Harrison Byers: “The tribunal is now in session. God bless the United States and this honorable tribunal.”

Historical Marshal: “Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.”—NMT III page 27

Sample 2: Arraignment of the first defendant.

Fictional Haywood: “The tribunal will now arraign the defendants. The microphone will be placed in front of the defendant, Emil Hahn. Emil Hahn? Are you represented by counsel before this tribunal?”

Fictional Hahn: “Not guilty.”

Haywood: “The question was, are you represented by counsel before this tribunal?

Hahn: I am represented.”

Haywood: “How do you plead to the charges and specifications in the indictment against you? Guilty or not guilty?”

Hahn: “Not guilty on all counts.”

Historical Presiding Judge: “The microphone will now be placed in front of the defendant Josef Altstoetter…Josef Altstoetter, are you represented by counsel before this Tribunal?”

Altstoetter: “I do not consider myself guilty.”

Presiding Judge: “The question is, are you represented by counsel before this Tribunal?”

Altstoetter: “Yes, I am represented by counsel.”

Presiding Judge: “How do you plead to the charges and specifications and each thereof set forth in the indictment against you, guilty or not guilty?”

Altstoetter: “I consider myself not guilty.”—NMT III pages 27-28

Sample 3: Prosecution opening statement.

Fictional Colonel Tad Lawson: “The case is unusual in that the defendants are charged with crimes committed in the name of the law. These men, together with their deceased or fugitive colleagues are the embodiment of what passed for justice during the Third Reich.”

Historical Brigadier General Telford Taylor: “This case is unusual in that the defendants are charged with crimes committed in the name of the law. These men, together with their deceased or fugitive colleagues, were the embodiment of what passed for justice in the Third Reich.”—NMT III page 31

The importance of exhaustively establishing this correlation between the historical trial and the film trial is that notwithstanding its unique nature and extra trimmings, the historical trial, as compliant with the authorities under which it was convened and functioned (Executive Order 9547, The London Agreement of August 1945, The Charter of the International Military Tribunal, Control Council Law No. 10, Executive Order 9679, Military Government-Germany United States Zone Ordinance No. 7 and Ordinance No. 11 among others—NMT III pages X-XXX) was a criminal trial and nothing more. But the film trial is a vehicle to deliver the desired message to an audience. As such it must in some areas depart from the strict format of a trial to effectively make its point. Having the historical trial as a clear and corresponding reference allows us to more clearly identify the boundaries between these areas. By identifying them we can then gain a more complete insight into why those departures were necessary. We can also gain greater insight into the areas where the film trial reflected the historical proceedings and the significance of that reflection. Thus the necessity for establishing beyond any reasonable challenge the veracity of the comparison.

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Ernst Janning is the focal point of the message. Haywood never grapples with the question of how could Hahn, Hoffstetter and Lampe do what they did. The mystery is to comprehend Janning’s acquiescence and participation in these things. If Mann and Kramer could have explored this question by simply having a trial of Janning it would have simplified the story and still delivered the same message.

But they didn’t have that option. Haywood states the problem in his verdict.

If he (Janning) and all of the other defendants had been degraded perverts, if all of the leaders of the Third Reich had been sadistic monsters and maniacs then these events would have no more moral significance than an earthquake, or any other natural catastrophe.

Mann and Kramer couldn’t make their message with some arbitrary case of a lawless person committing terrible acts in defiance of the law. They needed those acts committed at the behest of the law. They needed a Nuremberg trial and particularly the judges trial. But to get that trial they had to accept multiple defendants. It wouldn’t have looked authentic otherwise. If they had concocted what would appear like a wholly fictitious world to their audience the message would have no special relevance. They could scale it down from sixteen defendants to four, but they couldn’t take it all the way to one. For Mann and Kramer it was a balancing act. They had to put Hahn, Hoffstetter and Lampe on trial without letting them become too much of a distraction from the focus on Janning.

Nor could they allow the film to be bogged down with legal wrangling. At the end Haywood states, “The trial conducted before this tribunal began over eight months ago. The record of evidence is more than 10,000 pages long and final arguments of counsel have been concluded.”

Mann and Kramer could not present that much detail. What they did present was:

1. Witness for the prosecution, Dr. Wieck. Subject: use of sterilization. Defendant culpable: Janning. Rolfe cross examines.

2. Introduction of documents by prosecution relating to sterilization, followed by witness for the prosecution, Rudolph Petersen to thwart Rolfe’s objection. Defendants culpable: Hoffstetter and Janning. Rolfe cross examines.

3. Witness for the prosecution, Dr. Geuter. Subject: Feldenstein case. Defendants culpable: Hahn and Janning. Rolfe doesn’t cross examine.

4. Witness for the prosecution, Irene Hoffman Wallner. Subject Feldenstein case. Defendants culpable: Hahn and Janning. Rolfe postpones cross examination until later.

5. Lawson introduces a decree and series of orders. Subject: imprisonment without trial or due process. Defendants culpable: Hoffstetter, Lampe, Hahn and Janning. Lawson then testifies as a witness showing films. Subject: horror of such imprisonment.

6. Rolfe responds with a brief general defense which encompasses all defendants without naming them. Then he narrows his defense to Janning specifically and states he will produce abundant evidence on Janning’s behalf.

7. Witness for the defense, Mrs. Elsa Lindnow. Subject: Feldenstein case. Lawson cross examines.

8. Rolfe recalls Hoffman Wallner for a brutal cross examination. Janning interrupts rejecting Rolfe’s tactics and then makes a statement admitting personal guilt and explaining the rationale behind his actions.

9. Rolfe follows with a statement accusing the Soviet Union, the Vatican, Winston Churchill, American industrialists and indeed the whole world of aiding Germany in some way. All are guilty he claims.

It would be absurd to think that the presentation of this handful of evidentiary items consumed eight months and 10,000 pages of legal proceedings. What is done by having this one reference by Haywood to the length and extent of the trial is to establish for the record, and for the understanding of the audience, that the film is not about the trial per se. The trial almost in its entirety occurs off screen. Very little of it is dramatized for the film. The film is about the judgment of the trial—the message that is delivered through the agency of the trial.

By establishing that, Mann and Kramer can focus on that message. The elements of the trial listed above have one unifying characteristic. In every item presented Janning is culpable for the wrong that was done. There is also some overlap. In most of the items at least one of the other defendants is also culpable. All of them are at some point named. This is necessary. There must be some reason why Hahn, Hoffstetter and Lampe are on trial. This establishes a reason, for the record, without letting it become a distraction.

That being done, Mann and Kramer were free to concentrate on the mystery of how could Janning do what he did. Some artistic license was needed. In the records of the historical trial there is no indication that any of the defendants had the internationally recognized stature and renown that is ascribed to the fictional Janning. But to fully explore the mystery Janning had to be very highly respected, and Mann and Kramer made him so.

Because the focus is on Janning, his defense counsel, Rolfe, must also be a major player. If a strong case is to be made that Janning was wrong then a strong case must also be made that he was not wrong. Rolfe couldn’t simply mount a defense. He had to mount a brilliant defense. And Rolfe was the kind of lawyer who could do it. Haywood tells him at the end:

Herr Rolfe, I have admired your work in the courtroom for many months. You are particularly brilliant in your use of logic.

Looking at it as a scorecard: in the courtroom duel between Lawson and Rolfe the two adversaries lodge nine objections against each other. Haywood rules in Rolfe’s favor on six of those nine.

The focus on Janning and the important role of Rolfe, means that little is to be said about the other defendants, and their defense counsels recede in purpose to little more than a visual presence. Only once does one of the other counsels speak. This is during Rolfe’s cross examination of Dr. Wieck when he assists by reading the Civil Servant Loyalty Oath.

But although the film is not about the trial per se it does not change the fact that the trial in its entirety took place. It does not argue the nonsensical position that if significant legal proceedings weren’t dramatized for the film then they did not happen. The prominence of Rolfe’s role does not negate the documented historical fact, which Kramer with meticulous attention to detail incorporated into the fabric of the film, that the other defense counsels did exist, were present in the courtroom and were at their proper stations seated directly in front of their clients.

So Rolfe defended Janning. The other counsels defended their clients. Of course there was some overlap. The defendants were being tried together, not individually. In most of the evidentiary items presented in the film Janning was not the only culpable defendant.

For example, the court order for Rudolph Petersen to be sterilized had Janning’s signature on it. It also had Hoffstetter’s signature. Lawson’s position was that this action violated human rights that are or should be legally protected, and therefore both men should be held guilty of criminal conduct. Rolfe’s responsibility was to defend Janning, not Hoffstetter. But he couldn’t make a distinction between the culpability of both signatory actions. Rolfe was much too smart a lawyer to take the idiotic position that maybe Hoffstetter was wrong but Janning was certainly not wrong. He had to argue that the prosecution was not justified in calling this court order illegal, or even improper. This argued a defense of Janning but it also argued a defense of Hoffstetter.

The inevitable occurrence of such overlap can clearly be seen by examining the records of the historical trial. During the arraignment proceedings Dr. Schilf, counsel for Klemm and Mettgenberg, made this objection:

We make the following objections against the indictment: Ordinance No. 7, by the Military Government, says, in article IV under paragraph (a), that the indictment is to set forth the counts simply, distinctly, and in sufficient detail, and that the defendants should be instructed on the details of the charges made against them. The defendants, or rather the two clients I represent, failed to find certain details in the indictment. With the exception of possibly the charge in regard to the Night and Fog Decree, no legal decree is referred to which could possibly be considered illegal. In that manner the preparation by the defendants is frustrated because the indictment, according to our opinion, is conceived much too generally, and the requirements of article IV of Ordinance No. 7 just referred to by me are not fulfilled.—NMT III pages 28-29

Schilf argued a point to the benefit of all the defendants and refers in general to all defendants. The item he cites from Ordinance No 7 as to the defendants being instructed on the details of the charges was certainly not written for Klemm and Mettgenberg exclusively. It applied to all defendants, not only in this trial but in all the others too. But although Schilf refers to defendants generally and argues to their benefit he also states that only two of them are his clients. Other references could be cited which demonstrate the same thing.

In the historical trial the prosecution made an opening statement—NMT III pages 31-107. In the film trial Lawson makes the prosecution’s opening statement. In the historical trial there was then an opening statement for all defendants—NMT III pages 108-126. This was delivered by:

Dr. Kubuschok (counsel for defendant Schlegelberger, speaking on behalf of all the defendants)—page 108

In the film trial Rolfe makes the opening statement. In the historical trial the opening statement for all defendants was then followed by opening statements for the defendants individually. NMT III records the opening statements for Schlegelberger delivered by Dr. Kubuschok, Klemm delivered by Dr. Schilf, Rothenberger delivered by Dr. Wandschneider, Lautz delivered by Dr. Grube, Von Ammon delivered by Dr. Kubuschok and Rothaug delivered by Dr. Koessl.—NMT III pages 126-158

Rolfe's general statement for the defense segues into a statement about Janning. Otherwise no opening statements for the individual defendants are dramatized for the film.

So both historically and in the film the fact that one counsel might and sometimes did refer to the defendants in general, and argue points to the benefit of all does not prove that that counsel was the only defense counsel. And if one person on some occasions spoke to the benefit of all it absolutely does not prove that nobody else ever at any time spoke in defense of other individual defendants.

Rolfe was in a difficult position. As he must inform the court during arraignment “The defendant (Janning) does not recognize the authority of this tribunal and wishes to lodge a formal protest in lieu of pleading.”

Later he says to Janning, “Dr. Janning, we are both in an embarrassing position. I know you didn’t want me as your counsel. I know you didn’t want anyone.”

Were these things true? Janning did not dispute either statement. The legal implication, and Janning and Rolfe were both well aware of legal implications, is that “silence implies consent.”

If it was not true that Janning did not initially recognize the authority of the tribunal to try him then there was no reason for him to refuse to voluntarily stand and enter a plea during arraignment. And there was certainly no reason to not make known that this is not true when Rolfe tells the court that it is.

The value of a single human being. It is always there. In his verdict Haywood says:

But this trial has shown that under a national crisis ordinary, even able and extraordinary men can delude themselves into the commission of crimes so vast and heinous that they beggar the imagination.

When do these crimes become so vast and heinous?

Herr Janning, it came to that the first time you sentenced a man to death you knew to be innocent.

The value of a single human being.

This is the message and how Mann and Kramer masterfully use the structure of the trial to deliver that message.

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