“How do we want him?”
“Dead!”
The chanting was so loud that Judge Norman Roettger interrupted the trial twice, ordering Becker to muzzle the bullhorn and silence the crowd. When he refused, Roettger told U.S. marshals to arrest him. The handcuffs silenced the bullhorn, but the sight of police dragging away a young Jew evoked images of the Gestapo and only inflamed the crowd even more. The arrest and handcuffs also gave the JDL another excuse to ask a federal appeals court to remove Roettger for bias. The court refused.
A group of Holocaust survivors from Miami joined the JDL in the courtyard, adding blind fury to the emotional mix. Members of the Ben Gurion Culture Club, they carried signs reading “Impeach the Judge” and “Remember 6 Million Jews Murdered by the Nazis.” Besides joining in Becker’s chant, they conducted a memorial service in the courtyard.
“We are Jews,” they chanted.
“We couldn’t be prouder.
“If you cannot hear us,
“We’ll yell louder.”
Protected by a cordon of U.S. marshals, one lone Holocaust denier braved the anger of the mob. He carried a sign that said, “The Jews Live a Lie… Six Million Lies.” A female survivor managed to break through the cordon. She ripped the placard from the denier’s hands and stomped on it. Marshals restrained her before she could punch him.
For Fedorenko, entering and leaving the courthouse past jostling demonstrators screaming “Death to Fedorenko!” was an emotional ordeal. One Holocaust survivor broke through the ring of U.S. marshals who escorted him to and from the courthouse and landed a blow before they could pull her away.
Things were just as emotional inside the courtroom during the fourteen-day trial. The tension was, as Judge Roettger put it, “so thick you could almost touch it.” And when Fedorenko took the stand after days of verbal abuse, he was visibly pale and shaken.
At issue in the trial were four questions that went to the heart of the Fedorenko and Demjanjuk cases:
• Did merely serving as a camp guard constitute assisting the enemy?
• Did Fedorenko deliberately lie on his visa application form?
• If so, was it a “material” lie, that is, the suppressing of facts which, if known, either would have made him excludable from the United States, or would have led to the uncovering of facts making him excludable?
• Did it matter whether he volunteered for the guard duty or was drafted?
Recognizing that U.S. citizenship is a priceless treasure, the Supreme Court had deliberately drafted evidentiary standards for denaturalization cases that were stricter than those governing other civil cases. It ruled that the evidence must be “clear, unequivocal, and convincing [and] not leave the issue in doubt.” Those narrow rules are especially necessary, the Court further ruled, when charges of immigration fraud are made long after citizenship or a visa has been granted, and when the accused has met his obligations as an American citizen and has committed no crimes.
Charges against Fedorenko and Demjanjuk were made more than thirty years after their visa applications had been approved. And neither man had a criminal record as an American citizen.
In spite of the heavy burden of proof, the U.S. attorneys assigned to try Fedorenko believed they had an airtight case. Six eyewitnesses from Israel testified that they had identified Fedorenko from a photo spread. All six eyewitnesses also testified that they had seen Fedorenko shoot and beat prisoners with a metal-studded whip. Three eyewitnesses positively identified him in the courtroom as the brutal Treblinka guard they described from the witness stand. A visa application was offered into evidence in which Fedorenko swore he had been a farmer in Poland and a forced factory worker in Germany during the war. A former U.S. vice consul testified that he would not have granted Fedorenko a visa permitting him to enter the United States in 1949 if he had known that Fedorenko had been a guard at Treblinka.
Testifying in his own behalf, Fedorenko stole much of the government’s thunder. He frankly admitted that he had been a perimeter guard at Treblinka, but denied he volunteered for the job. The SS had drafted him, he said, and he would have been executed had he refused to serve. He knew that prisoners were being gassed at Treblinka because, one day, he was posted to camp two, where the gas chambers were located. What he saw, he said, so sickened him that he refused to work there again. He never beat or killed anyone. The only time he ever fired his rifle, he testified, was when the SS ordered him to shoot during the uprising, quickly adding that he fired over the heads of the fleeing prisoners.
Fedorenko also frankly admitted that he had lied on his visa application. Not to deceive the office of the U.S. consul, he said, but out of fear for his life. If he admitted he had been a POW, he would have been turned over to the Soviets for repatriation and executed as a deserter. And if he admitted he had been a guard at Treblinka, the Soviets would have executed him for collaborating with the enemy, an act of treason.
Judge Roettger, who presided over the juryless civil trial as mandated by Congress, was clearly sympathetic toward Fedorenko. In his written decision, he described the case as a David and Goliath legal battle. Four attorneys with an oversized budget sat at the prosecution table. That much legal firepower, he pointed out, was generally reserved for Mafia dons, serial killers, and drug lords. A single attorney sat at the defense table, and he was one attorney more than Fedorenko could afford. The retired welder was living on Social Security and a modest pension. He didn’t own a home or a car and had only five thousand dollars in the bank. The only thing the man actually owned, Roettger noted, was a cemetery plot.
Roettger went on to condemn what he called the “Hollywood spectacle” staged outside his courtroom. He noted that the Jewish Defense League advertised in Miami newspapers offering free chartered bus rides to Fort Lauderdale for the trial.
If Roettger was harsh on the crowd outside his courtroom, he was merciless on the prosecution inside. In essence, he disemboweled the government’s entire case because, he ruled, it failed to prove the case without a doubt. Since the government did not offer any
After noting that only three of the six eyewitnesses positively identified Fedorenko in court, Roettger went on to say that the three identifications were tainted because their testimony and body language suggested that the survivors had discussed the case among themselves and had been coached. Both indiscretions violated the rules of the court.
Roettger also attacked eyewitness testimony about Fedorenko’s alleged shooting and beating of prisoners. He found the survivor testimony both disturbing and heartrending and never doubted that they were at Treblinka and suffered horrors there. But he characterized their identification of Fedorenko as a brutal guard at Treblinka as inconsistent and, therefore, unconvincing. And he found the testimony of former U.S. vice consul Kempton Jenkins unconvincing as well. Although Jenkins told the court that every camp guard he had ever interviewed claimed he did not volunteer for the job, Roettger did not consider that unsupported statement as proof that Fedorenko lied when he testified that the SS had drafted him for guard duty.
If he was hard on the prosecution, Roettger went easy on the defense. As a judge, he prided himself on being a keen observer of courtroom body language and vocal innuendos that he used to help determine witness credibility. He found Fedorenko a credible witness. Unlike his survivor-accusers, who were “combative, hostile and intensive,” he said, Fedorenko was calm and guileless and spoke with a firm, sincere voice. In the absence of any specific evidence to the contrary, he believed Fedorenko when he said he did not volunteer for guard duty at Treblinka.
Roettger further pointed out that the defense had drawn an un-contested picture of Fedorenko as a model American citizen. Fellow foundry workers and union bosses testified that he was hardworking and reliable, and that he never filed a single grievance with the union or had one filed against him. Neighbors testified that he was a gentle man without any apparent prejudices. And his attorney presented evidence that he had no criminal record and only one traffic ticket after twenty-nine years in America.
In the end, Judge Roettger ruled that the government failed to present “clear, unequivocal, and convincing” evidence that Fedorenko had committed any crimes against civilians, or that he had volunteered for guard duty at
