Useful Enemies

The identification of a face from memory is a tricky feat, Wagenaar told the court. One hundred percent accuracy, especially after a long time, is rare, and consequently there are no absolutes, only likely and unlikely. The critical question, therefore, was this: Were the memories of the Treblinka survivors accurate enough that confusing Iwan Demjanjuk with Ivan the Terrible was very unlikely?

Having set the stage for the critical part of his testimony, Wagenaar began an in-depth and critical evaluation of Miriam Radiwker’s photo spread, how the Treblinka survivors responded to Demjanjuk’s photo number sixteen, and how they described the Iwan they knew. His testimony was devastating, and there was nothing Mickey Shaked could do to stop him.

Wagenaar began with a contradiction that troubled him deeply but didn’t seem to bother the court. “It is clear,” he testified, referring to the 1975 photo spread, “that not all the witnesses, at all instances, were perfectly certain. Nor were they at all times perfectly accurate.” Yet each witness had identified the Demjanjuk photo and the man himself in the courtroom more than ten years later with absolute certainty.

Wagenaar then pointed out another issue that did not seem to trouble the court, but should have. A significant number of Treblinka survivors interviewed by Radiwker and her successor, Martin Kolar, could not identify Demjanjuk as Ivan the Terrible from the photo spread. This was so underreported by the Israeli police and so totally dismissed by the prosecution as irrelevant, Wagenaar pointed out, that no one had even bothered to tally how many survivors were not able to identify Demjanjuk.

By Wagenaar’s count, the number ranged from twenty to thirty-two, or at least twice as many as those who did identify Demjanjuk. It was true that some of those survivors who failed to identify Demjanjuk as Ivan the Terrible did not work near the gas chamber. But that was clearly not the case with Schlomo Helman, who helped build the new gas chamber at Treblinka under the watchful eye of Iwan Grozny and who was at the camp longer than any other survivor.

Next, Wagenaar went on to present a list of factors, which he called “response bias,” that could predispose a witness to select a certain photo in the spread. He then applied each factor to the Radiwker photo spread and the identification process to determine if the memory test was valid. The most relevant factors were:

The witness attaches great importance to the punishment of the perpetrators, which motivated him to select someone from the spread.

There can be no doubt that the Treblinka survivors wanted their torturers as well as the murderers of their families to pay for their crimes.

All the photos in the spread are pictures of a suspected criminal.

All the photos in the Radiwker spread were of suspected war criminals. If a witness realized that fact, he could point to any picture with the assurance that he was not condemning an innocent person. In effect, the witness was motivated to select someone—anyone—and could rest assured that even if he was wrong, justice would be done.

OSI’s George Parker had presented this same hypothetical argument in his doubt memo. Even if John Demjanjuk was not Ivan the Terrible, Parker had said, playing devil’s advocate, he was still a war criminal who lied on his visa application and, therefore, should be stripped of his citizenship. It was why Parker had rejected trying John Demjanjuk as Ivan the Terrible as unethical.

The witness has a strong reason to believe that the picture of the perpetrator is in the photo spread.

The Treblinka witnesses had good reason to believe that a war criminal from Treblinka was in the photo spread Miriam Radiwker presented to them. Why else would she interview them about what they saw at Treblinka? Furthermore, the investigation process itself linked Treblinka to the photo spread, even though Radiwker had not actually said: “There is a Treblinka guard among the photos. Can you identify him?” It was implied.

If a Treblinka survivor had seen the ad Radiwker placed in Israeli newspapers, he would know whom to look for in the photo spread. The ad read: “The Nazi Crime Investigating Division is conducting an investigation against the Ukrainians Iwan Demjanjuk and Feodor Fedorenko. Survivors of the death camps Sobibor and Treblinka are requested to report to the Israel police headquarters.”

The witness believes he will never forget the face of the perpetrator as long as he lives.

Down to a person, the Treblinka witnesses had all stated in depositions or had testified in trials that they could never forget Ivan the Terrible or his face. They lived with him day and night. That conviction gave a witness confidence in selecting a photo that might not have been a picture of the real perpetrator.

The witness knows that previous witnesses also made positive identifications.

Miriam Radiwker testified that she did not tell the witnesses about the other Treblinka survivors she had already interviewed, or would interview, or what they had said. But she didn’t have to. All the Treblinka survivors knew one another. They had the opportunity to discuss Radiwker’s investigation among themselves, and may indeed have done so.

Only one picture in the photo spread fits the general description of the perpetrator.

Each Treblinka witness came to his interview with an image of Ivan the Terrible locked in his memory. Although there was some disagreement about Iwan’s height and the color of his hair, all witnesses agreed on three physical characteristics: round face, short neck, incipient baldness. Out of the seventeen photos in the spread only one matched those three characteristics.

To prove the point, Wagenaar had conducted a simple test on twenty-five of his psychology students. He gave each a copy of the Radiwker seventeen-picture photo spread and asked them to identify every photo, if any, matching a man with a round face, short neck, and premature baldness. Every student selected one photo and the same photo: number sixteen, John Demjanjuk.

Next, Wagenaar gave each student a second photo spread with eight pictures, one of which was the Demjanjuk photo. The other seven reasonably resembled him. Only 8 percent of the students selected Demjanjuk.

One photo calls attention to itself because it is markedly different from the others and thus predisposes the witness to subconsciously select it.

Demjanjuk’s photo number sixteen was by far the largest photo in the entire spread. It leapt off the page.

The number of people in the spread is small, five or six.

INS had asked Radiwker to show the witnesses at least three photos. Experts agreed that three pictures are not sufficient for a valid memory test. Israeli law agreed. It required at least eight. Some Treblinka survivors, however, had viewed only three photos, thus satisfying INS requirements, but not meeting Israeli and U.S. standards.

The interrogator makes conscious or unconscious suggestions, calling attention to one particular picture, or makes specific reference to someone in a picture.

Radiwker testified that she did not coach any witness or suggest anything, directly or indirectly. She merely placed the photo album before the witness and asked him to look at the pictures and tell her if he recognized anyone. Her testimony was not quite accurate.

During at least one interview, Radiwker pointed at Fedorenko’s photo number seventeen and said: “Look carefully.”

The witness is asked to look again to see if he recognizes anyone else in the photo spread, suggesting that there is someone the interviewer is hoping the witness will identify.

After Goldfarb and Eliyahu Rosenberg, among others, had identified Demjanjuk as Ivan the Terrible, Radiwker asked them to look at the pictures a second time to see if they recognized anyone else.

The witness is exposed to an identity parade containing the same suspect.

The Israeli police showed several Treblinka survivors more than one photo spread. The repetition reinforced