Useful Enemies

the witness’s conviction that he had made the right choice the first time and encouraged him to stand by his identification.

Like Judge Roettger in the Fedorenko case, Wagenaar went on to further criticize the photo spread. Demjanjuk’s photo number sixteen and Fedorenko’s photo number seventeen were not only the largest on page three of the spread, they were also the clearest, making them stand out even more. The other six pictures on page three were blurred, especially numbers fourteen and fifteen. Furthermore, the black/white contrast was very low in all seventeen photos, washing out facial details. And photos ten and thirteen were so out of focus that they were useless. Those vague pictures, Wagenaar argued, sent viewers a subtle message: These pictures could not possibly be important, so why should we bother to study them?

If all the photos, save one, failed to come even close to looking like Demjanjuk, Wagenaar concluded, what difference did it make how many pictures the police presented to witnesses? They would still have only one choice. In effect, the Israeli police photo spread or memory test set the witnesses up to select photo sixteen.

Finally, Wagenaar was highly critical of Israeli police procedures themselves. He pointed out that the police did not provide or require specialized training for its investigators as most police forces do. Being a lawyer like Miriam Radiwker was not in and of itself a qualification for police work.

Nor did Israeli law require that defense counsel be present at a lineup or photo spread interview.

Nor did it require that the witness be told: “A person you know may or may not be in the lineup.” Radiwker’s introduction, “Look and see if there is someone you know,” was not an acceptable photo identification introduction.

Nor did the Israeli police require transcripts of the recorded photo spread interviews and identifications. That omission raised a critical legal question. Should the court even allow Radiwker’s depositions into evidence? Was it fair to make Demjanjuk the victim of such a lack of professionalism?

Considering the flaws in the design and presentation of the photo spreads, Wagenaar concluded that the memory tests performed by the Israeli police did not “constitute valid tests of memory.”

Sheftel sat down with a smile on his face. Wagenaar had boxed Dov Levin into a tight corner. But Sheftel was certain that Levin would find a way to dismiss Wagenaar’s entire compelling testimony as “theoretical.” More grounds for appeal.

• • •

Like Julius Grant, Willem Wagenaar left Shaked few openings for his cross-examination. He began by challenging Wagenaar’s credentials and relevance as an expert witness. He tried to get Wagenaar to admit that his testimony was based not on his own work, but on the research and writings of other experimental psychologists. In fact, he had not written even a single article about the subject of his testimony, identity parades or photo spreads. It was all theory.

Shaked got Wagenaar to admit that his list of response biases was indeed based on experimental studies, but all the studies were theoretical. They may have been tested on students, but they had never been tested on actual police lineups or on the equivalent of death camp survivors.

Shaked also got Wagenaar to admit that although he had testified as an experimental psychologist in forty court cases, only one dealt with photo spreads or police lineups.

Shaked argued that Wagenaar’s testimony was not the testimony of an expert witness, but that of a biased “partisan” because the use of experimental psychologists in courts was hotly contested in the United States, the only country in the world where experimental psychologists were admitted as expert witnesses. Why hadn’t he told the court that?

Shaked further argued that the very tenets of experimental psychology relating to witness identification were not accepted by the international scientific community. Why hadn’t he pointed that out to the court? In fact, experimental psychologists themselves disagreed about whether they should be admitted by the court as expert witnesses. Why hadn’t Wagenaar told the court that?

Because it wasn’t true, Wagenaar said.

A minority of experimental psychologists believed that it was not appropriate to testify as experts in every single case, but none believed that experimental psychologists should never testify about identification.

Shaked argued that the classroom experiment with Radiwker’s photo spread was worthless. There was a huge difference between a psychology student who had never seen Ivan the Terrible and a Treblinka survivor who had. The test, therefore, was no test at all. It was all theoretical.

Finally, Shaked tried to turn Wagenaar into a prosecution witness, as he had done with the defense’s document expert William Flynn.

“Would you agree that it is correct to say that your opinion is: It would be very inaccurate to say that one cannot accurately recognize a face of someone whom that person knew well forty years ago?”

“The general statement is,” Wagenaar said, “a ridiculous statement.”

Wagenaar testified that memory discrepancies are normal because, although the details of a face or an event are locked in the memory, the keys to unlock those details are missing. For example, a person might not remember a fishing trip he had taken many years ago. But if someone showed him a photo of himself sitting in a boat holding up a string of fish, lost details will flood his memory. So when Demjanjuk said, “I can’t remember… it was more than forty years ago” he had no cue to help him retrieve the memory. And when he said, “I just remembered while I was in jail,” a cue had reminded him of the lost memory.

“As long as discrepancies are part of the norm,” Shaked said, “then it is reasonable to assume that it is the sort of forgetfulness that could happen to any one of us. If, however, it goes beyond what is normal, then there is the possibility that we are dealing with deliberate lies?”

“Yes,” Wagenaar said.

• • •

Later that night, Sheftel celebrated at the Notre Dame Hotel with Ed Nishnic, Wagenaar and his wife, and Elizabeth Loftus. They all believed that Wagenaar had proven that the photo spread had no evidentiary value, and that Wagenaar had created much more than a reasonable doubt about the Treblinka survivors’ identification of John Demjanjuk as Ivan the Terrible. Not that it made any difference. Sheftel believed Dov Levin had his mind made up from the moment he tapped his gavel. The testimony of Willem Wagenaar would never make him doubt that John Demjanjuk was Ivan the Terrible. In that, he was like the Treblinka survivors. Because they wanted Demjanjuk to be Iwan Grozny, he was.

That was understandable for a survivor. But for a judge?

CHAPTER FORTY-SEVEN To Doubt or Not to Doubt

“Your verdict must not only be founded on the evidence,” the defense warned the court in its closing argument. “But it must also withstand the test of time so that in five or ten or fifty years it shall be said, ‘Justice was done in Jerusalem—Demjanjuk was acquitted according to the law.’”

Survivors and their families burst into tears. “Liars!” they shouted.

The prosecution pleaded with the court to convict John Demjanjuk of being Ivan the Terrible based on the evidence, and only the evidence, it had presented.

Vera Demjanjuk burst into tears. “You’re all liars!” she shouted.

Who was lying? Who was telling the truth?

The court convened on April 18, 1988, just over a year after the trial had begun, to answer those questions in its four-hundred-page opinion. The reading took all day. Judge Levin began at just past 8:30 A.M. Judge Zvi Tal took over at 1 P.M. And Judge Dalia Dorner relieved Tal at 3 P.M.

The night before the reading of the verdict, hundreds of Jews from the United States, Europe, and Israel held vigil on the vast, empty field that was once the death camp of Treblinka. They gathered in the center around a