II. Meandering into the Twentieth Century
. . .
J. Justice Morris: Nazi War Crimes Judge
Like Justice Christianson, some other justices served additional public interests while on the Court. Justice James Morris gained national repute and helped develop international law by temporarily leaving the Court to judge a War Crimes trial in Germany not long after World War II.(212)
Justice Morris was born in a sod house outside Bordulac, North Dakota, but finished his high school, college and law school educations at Cincinnati, Ohio, before coming back to Carrington, North Dakota to practice law.(213) After military service in World War I, he returned to his Carrington law office, served as Foster County States Attorney for four years, and later moved to Jamestown to practice.(214) After election and service as North Dakota Attorney General from 1929 through 1932, he ran for the Supreme Court in 1934 against Justice George Moellring (1933-1934).(215) Justice Morris won the election to begin three decades on the Court.(216)
In 1947, Justice Morris took a leave of absence for a year to serve at Nuremberg,(217) Germany, on an American War Crimes Tribunal for the trial of twenty-three officials of I.G. Farben Industries.(218) Farben, a giant industrial cartel with holdings of "more than 880 firms throughout Europe, Africa, North and South America, [and] east and west Asia," manufactured chemicals and munitions for Hitler's war machine.(219) After World War II, the victorious Allies charged twenty four directors and officers of Farben with War Crimes.
All the Farben officials were charged with crimes against peace by preparing and waging an aggressive war against other countries and by conspiring to do so; with war crimes by plundering property and deporting people from occupied countries; and with crimes against humanity by enslaving, mistreating and murdering civilians conscripted to operate its factories at concentration camps, including Auschwitz with its deadly crematoriums.(220) Four Farben officials were also charged with membership in the "SS," an organization declared criminal by the prior International Military Tribunal.(221)
Justice Morris was named a War Crimes judge by President Truman and assigned by General Lucius D. Clay, American Military Governor in Germany, to the panel of judges on American Military Tribunal No. VI for the Farben trial.(222) "He [felt] especially fortunate to be assigned to the Farben case, which he [felt would] be a landmark in international jurisprudence."(223)
One of the lead prosecutors in the case, Josiah E. DuBois, Jr.,(224) wrote a book about this trial, The Devil's Chemists. DuBois was an American lawyer who had seven years prior experience, mostly at the U.S. Treasury Department, in dealing with Farben through seizure of its assets in the western hemisphere during the war.(225) DuBois's book was critical of the outcome and of Justice Morris's impact on the trial.(226)
The prosecutor's opening statement outlined the case they hoped to prove against the Farben officials:
In 1940 the defendants as officers and managers of the huge I.G. Farben industrial empire, planned the construction of a fourth synthetic rubber plant which was vitally necessary if the war was to be long continued. The site selected was Oswiecim, Poland, known to the Germans as Auschwitz. Here one of the largest, if not the largest concentration camp had been erected by Himmler. They desired the use of concentration camp inmates to provide the labor for building and operating the plant. Himmler for a price furnished the inmates of his camp who slaved and died to build the buna rubber factory. It is a revolting story of brutality, starvation and murder. In 1945 I.G. Farben had more than 100,000 slave laborers assigned to it. This represents the number used at a given time and does not take into consideration the tremendous turnover brought about by death and exchange. I.G. Farben built its own concentration camp with SS guards and all the usual trappings. They received their slaves from the notorious Rudolf Hoess, Commandant of the Auschwitz Concentration Camp, who personally estimated that at least 2,500,000 inmates were executed in its gas chambers and destroyed in its crematories, and that another half million died of starvation and disease. Farben officials were familiar with and acquiesced in the program. The life span of a slave worker averaged three months. They included Norwegians, British, Dutch and many other nationalities. It is estimated that Farben's concentration camp and the buna plant alone claimed the lives of 25,000 persons. Exhaustion, malnutrition, freezing and atrocious brutality were the main causes of death. Those sustaining serious injuries or slow healing incapacities were selected for gassing. These are only some of the things that I.G. Farben and other industrialists did. It is for such offenses and atrocities that the industrialists have been called upon to defend themselves in a Tribunal administering international law.(227)
The prosecutors were not entirely successful in their proof.
From the start of the trial on August 27, 1947, DuBois felt particularly irritated by Justice Morris.
His gray head half a plane above [presiding] Judge Shake and a full plane above the other two judges (who bent studiously over the bench), Judge Morris attention wandered from one dark-paneled wall to the other. Still, I had seen judges who took in evidence while they gave every appearance of being asleep. When on rare occasions the Tribunal had paused to look over a document in open court, Morris finished before the others; then his head would snap up and he would look for a moment as if someone had just seen him sit on a cocklebur. A justice of the supreme court of North Dakota, Morris was a judge's judge in many ways, used to reading summaries prepared by assistants, and probably several years removed from the slow exasperating drama of trials at this level.(228)
DuBois complained that Justice Morris repeatedly questioned the pace of the prosecutors' presentations and the relevancy of much of their evidence.(229)
It was a long and ponderous trial.
The trial finally ended on May 12, 1948, after having exhausted all concerned in 152 trial days. There had been 189 witnesses. The transcript was almost 16,000 pages long. Over 6000 documents and 2800 affidavits had been introduced into evidence. In addition, there had been a multitude of briefs, motions, rulings, and other legal instruments incidental to such a proceeding.
An intellectually divided and emotionally drained court faced the task of carving from the huge record a legally valid and historically meaningful decision. On July 29, 1948, almost a year after the trial began, the court convened to read its opinion, render its verdict, and sentence the guilty.(230)
The Tribunal majority (presiding Judge Shake, a former Indiana Supreme Court Justice, and Justice Morris acquitted all twenty-three defendants (one was too ill for trial) of complicity in carrying on an aggressive war;(231) acquitted the few defendants accused of membership in a criminal organization;(232) and acquitted ten defendants of all crimes.(233) The Tribunal majority found eight guilty only of plundering; four guilty only of slavery; and found one guilty of both plundering and slavery.(234) The third judge, Judge Hebert, Law School Dean at Louisiana State University, announced that he "differed on many points," and "added that he would file separate opinions later, including a dissent on the slave-labor count."(235) The Tribunal majority sentenced those convicted to imprisonment for periods varying from one and one-half years to eight years.(236)
The prosecutors were immediately irate: "The sentences were light enough to please a chicken thief, or a driver who had irresponsibly run down a pedestrian."(237) Prosecutor DuBois believed: "It was clear now that, from the first, the court had been split in two, with Morris and Shake on one side, Hebert and [alternate Judge] Merrell on the other."(238)
More than four months later, after all the judges had returned home, and with help from alternate Judge Merrell, an Indiana lawyer,(239) who participated in the trial but not the judgment, Judge Hebert filed a separate 114-page opinion, concurring and dissenting.(240) Judge Hebert explained his partial concurrence:
I concur in the acquittals on charges of planning and preparation of aggressive war. I concur, though realizing that on the vast volume of credible evidence, a contrary result might as easily be reached by other triers of the facts who would be more inclined to draw the inferences usually warranted in criminal cases. The issues of fact are truly so close as to cause genuine concern whether or not justice has actually been done.
While concurring in the acquittals, I cannot agree with the factual conclusions of the Tribunal. I do not agree with the majority's conclusion that the evidence falls far short.(241)
In his dissent, Judge Hebert explained he would have convicted most of the officials of slavery:
Utilization of [slave] labor [by Farben] was approved as a matter of corporate policy. To permit the corporate instrumentality to be used as a cloak to insulate the principal corporate officers who approved and authorized this course of action from any criminal responsibility therefor is a leniency in the application of principles of criminal responsibility which, in my opinion, is without any sound precedent under the most elementary concepts of criminal law. . . . The evidence shows Farben's willing cooperation in the utilization of forced foreign workers, prisoners of war and concentration-camp inmates as a matter of conscious corporate policy.(242)
Justice Morris summarized the effect of this split decision on the most controversial charge, slavery:
[T]he members of the tribunal were unable to agree upon the inferences of guilt to be drawn from the fact of [board of directors] membership and authority . . . . [W]e were not able to agree whether necessity and the lack of opportunity to exercise moral choice was available as a defense or could only be considered in mitigation of the use of slave labor. The result [on the slave-labor count] was the unanimous conviction of five defendants, including four members of the [board of directors], the unanimous acquittal of three defendants, and the acquittal of fifteen members [of the board] by a vote of two to one, Judge Hebert dissenting.(243)
The prosecutors thought Justice Morris was preoccupied with the looming "Russian menace," rather than concerned with the culpability of Nazi cohorts.(244) DuBois believed the majority was unduly swayed by this growing fear of Russian Communism: "[W]hy had Judges Shake and Morris reacted as they did? I concluded that the reason must have been fear--their own great fear of the trend of events in 1948."(245)
But DuBois frankly confessed, "while the prosecution couldn't understand Judge Morris failure to grasp the evidence, we had our own doubts."(246) DuBois also said, after the trial, he "grew more tolerant of the two judges who went to Nurnberg more or less uninitiated. No doubt they were influenced somewhat by our foreign policy" at that time, again referring to the sway of Russian Communism.(247)
Despite DuBois's "petty personal criticisms," Justice Morris felt vindicated by DuBois's description of the trial and its outcome. Justice Morris explained why in a virtually unpublished letter to DuBois shortly after his book was published:(248)
No longer need I apologize for or explain my part in the Nurnberg trials. You have, perhaps unwittingly, done me a great favor by furnishing a written record which, though erroneous and misleading in many details presents an over-all picture which I regard as highly complimentary.
. . . .
I am glad, too, that your book recognizes my appreciation of the Russian menace . . . .
By this remark, though, Justice Morris seems to confirm his Farben decision was affected by the prevalent foreign policy of that time, containing Russian Communism.
Justice Morris's letter continued with another remark about "not creating dangerous precedents which would have been an impediment to the future foreign policy of our country":
I know that you were greatly disappointed in the judgment and the sentences meted out. It would seem, however, that your disappointment was not well grounded since the defendants receiving the longer sentences were released long before those sentences expired and, as you point out in your book, pardon had terminated all sentences by 1951. It would seem, therefore, that the tribunal was entirely in step with the progress of history in the making and that we were wise in not creating dangerous precedents which would have been an impediment to the future foreign policy of our country. . . . The intervening years have proved that the Farben judgment was wise and just. I am indeed proud to have been one of the majority that brought about its rendition. Despite petty personal criticism, your book points out my position and my responsibility with regard to the decision. For that I am grateful.(249)
Justice Morris was proud of the Farben decision and its precedential importance for international criminal law. He believed the trial "will have some significance in the future development of international criminal law," even though he urged "codification of an international criminal law."(250)
Unquestionably Justice Morris's vote to convict some corporate officers of crimes against humanity contributed significantly to development of international law, whatever the fate of those guilty might have been. With war crimes again in today's headlines from events in eastern Europe, Justice Morris's precedent may have renewed relevance for the rule of international law in our times.
212. SeeHon. James Morris, Major War Crimes Trials in Nurnberg, 25 N.D. B. Brs. 97 (1949).
213. See Sketch, supra note 2, at 47. After his father died and when Morris was 16, his mother moved back to where "her people" lived in Cincinnati. See Ken Rogers, Dakota Man's Contribution to Nuremberg's Legacy, Bismarck Trib., Dec. 24, 1995, at C1.
214. See Sketch, supra note 2, at 47.
215. See Sketch, supra note 2, at 46. Justice Moellring had been appointed to replace Justice Birdzell when he resigned to become general counsel for the Federal Deposit Insurance Corporation. See Sketch, supra note 2, at 46.
216. See Sketch, supra note 2, at 47.
217. Nuremberg and Nurnberg are varied spellings of the same place. Getty Research Institute, Thesaurus of Geographic Names (last updated June 26, 2000) <http://shiva.pub.getty.edu/tgn_ browser>. Nurnberg seems to have been more commonly used in 1948 and 1949; Nuremberg more common in recent times. See id. Other variants are sometimes used.
When Justice Morris left for Germany to sit at the [Nuremberg] trials, most of the cases were decided by the remaining four Judges instead of calling a district judge. I recall how eagerly the other justices supported [Justice] Morris' request for a leave of absence, even though his absence put an additional burden on them.
Letter from Lu Dunn, retired Clerk, North Dakota Supreme Court, to Herbert Meschke, author (Apr. 16, 1999) (on file with co-author). In a September 10, 1947, letter from Nuremberg to her Fortnightly Club in Bismarck, N.D., Amelia Morris explained part of her husband's arrangement for his absence from the Court: "Jim receives no salary from the State of North Dakota while on leave from the Court there, and the salary here, while larger, doesn't go very far." (From copy of five-page letter held by Lois K. Erickstad, Bismarck, N.D.).
219. Josiah E. DuBois, Jr., The Devil's Chemists 11 (1952).
220. See id. at 345-46; see also Morris, supra note 212, at 99 (defining crimes by quoting Control Council Law No. 10 enacted by the military governors of the four occupying powers in Germany on December 20, 1945), 101 (describing the offenses charged against the Farben defendants).
221. See Morris, supra note 212, at 101.
222. See Morris, supra note 212, at 100, 108.
223. Letter from Amelia Morris, wife of Justice James Morris, to Fortnightly Club, Bismarck, N.D. (Sept. 10, 1947) (on file with Lois K. Erickstad, Bismarck, N.D.).
224. DuBois was Deputy Chief Counsel of an eleven-member prosecution team. See VII Trials of War Criminals Before The Nuernberg Military Tribunals--"The I.G. Farben Case" 6 (U.S. Gov. Printing Office, 1949-1953) [hereinafter The I.G. Farben Case]. This 15 volume set, Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, encompasses 12 cases. Volumes VII and VIII are a selective but incomplete record of case no. 6: U.S. v. Krauch (I.G. Farben case). The North Dakota Supreme Court Library holds volume 3 and 5-15 of this set.
225. See DuBois, supra note 219, at 15.
226. According to Joseph Borkin, the author of The Crime and Punishment Farben of I.G., as DuBois left the courtroom after the decision, he declared: "I'll write a book about this if it's the last thing I ever do." Joseph Borkin, The Crime and Punishment of I.G. Farben 155 (1978) (citing DuBois, supra note 219, at ). DuBois actually wrote two books, although the second seems identical except for its title. See DuBois, supra note 219; Josiah E. Dubois, Jr., Generals in Grey Suits (1953).
227. Hon. Edward F. Carter, The Nurnberg Trials: A Turning Point in the Enforcement of International Law, 28 Neb. L. Rev. 370, 383-84 (1949) (citation omitted). Carter, an associate Justice of the Nebraska Supreme Court, served on an American Military Tribunal for a different "Industrialist" case. He summarized the Farben prosecutor's opening to illustrate the charges in each of the three so-called "Industrialist cases" where "[t]he indictments . . . charge[d] the defendants with wholesale enslavement of conscripted foreign labor, plunder and murder." Id. at 383 (quoting The I.G. Farben Case, supra note 224, at 100-05). He explained the importance of those trials:
The Nurnberg trials may not provide a sufficient deterrent to international crime, but they have provided more than has existed in the past. It is my hope, and that of the other Nurnberg judges as well, that, by interpreting, declaring and giving effect to existing principles of the international law of war, the beginnings of an international enforcement system of common law crimes has been planted.
Id. at 384.
228. DuBois, supra note 219, at 82. Since the North Dakota Supreme Court had no law clerks or legal staff before 1965, DuBois was wrong to assume Justice Morris was "used to reading summaries prepared by assistants."
229. See DuBois, supra note 219, at 82, 87, 88, 93, 95, 131, 142, 148, 195, 314-16. In contemplating DuBois's criticism, one should remember Justice Morris had ample experience as a prosecutor, both as a states attorney for four years and as Attorney General of North Dakota for four years. See Sketch, supra note 2, at 47.
230. Borkin, supra note 226, at 149 (footnote omitted).
231. See DuBois, supra note 219, at 339.
232. See Morris, supra note 212, at 102.
233. See Morris, supra note 212, at 102.
234. See DuBois, supra note 219, at 345-46; see also Morris, supra note 212, at 102.
235. DuBois, supra note 219, at 345.
236. See DuBois, supra note 219, at 346. "[T]ime in confinement before and during the proceedings counted as time served," and "John McCloy, the American high commissioner, pardoned the last of them in 1951." Peter Hayes, Industry and Ideology: I.G. Farben in the Nazi Era 377, xii (1987).
237. DuBois, supra note 219, at 339.
238. DuBois, supra note 219, at 347.
239. Clarence F. Merrell brought another North Dakota connection to the Farben War Crimes trial because he began his legal career here. See Bench and Bar: Memorials--Clarence F. Merrell, 30 N.D. L. Rev. at 171-72 (1954):
Mr. Merrell was admitted to the North Dakota Bar on December 9, 1912, and practiced at Fargo for about two years, being an associate of the firm of Watson, Young & Lawrence. News of his death [at Indianapolis, Indiana on February 10, 1954] was received by Chief Justice Morris with whom he served on a military tribunal for the trial of war criminals at Nuernburg, Germany.
240. See The I.G. Farben Case, supra note 224, at 1211-1325.
241. DuBois, supra note 219, at 354 (quoting Judge Hebert).
242. The I.G. Farben Case, supra note 224, at 1313-15.
243. See Morris, supra note 212, at 102.
244. See DuBois, supra note 219, at 95, 338.
245. DuBois, supra note 219, at 355.
246. DuBois, supra note 219, at 88.
247. DuBois, supra note 219, at 357.
248. A signed copy of Justice Morris's unpublished letter of March 26, 1953 to DuBois was made available by being bound into the copy of The Devil's Chemists held by the Bismarck State College library. The source of the copy is not known, but it was likely furnished for binding by Justice Morris himself.
249. Letter from James Morris to Josiah E. DuBois, Jr. (Mar. 26, 1953) (copy within binding of The Devil's Chemist at Bismarck State College, Bismarck N.D.).
250. Morris, supra note 212, at 109.