And when Israeli investigator Miriam Radiwker pointed to Demjanjuk’s photo and told two witnesses that she had evidence that the man in the photo was a guard at Sobibor, both witnesses insisted he was at Treblinka. In fact, all the Israeli witnesses appear to be unshakable in their identification of Demjanjuk as Iwan Grozny.
Both Poland and the Soviet Union conducted war crimes investigations of atrocities at Treblinka. Each compiled a list of guards who had served there. Iwan Demjanjuk’s name did not appear on either list. Furthermore, the picture of Demjanjuk in the photo spread that the INS sent to Israeli police was that of a man ten years older than the “Ivan the Terrible” whom the witnesses knew from Treblinka. That age difference could have led to misidentifications based on facial features. Furthermore, former Treblinka guards claim that Ivan of Treblinka “rarely if ever” left Treblinka. That casts doubts on any theory that Demjanjuk served in both camps at different times. Finally, all the eyewitnesses describe Ivan the Terrible as about five feet, ten inches tall. Demjanjuk was six feet, one inch.
The evidence that Demjanjuk served at Sobibor is also flawed. We haven’t found a single witness—a German or a Trawniki man—who can testify that he saw Trawniki cards similar to the one ascribed to Demjanjuk. Under that circumstance, the trial judge may well refuse to allow the card to be entered as evidence. And Danilchenko’s statement about serving with Demjanjuk at Sobibor has inconsistencies that might destroy or damage his credibility. Since we haven’t interviewed him, his statements have little value except to raise more doubts.
We are trapped. We have little admissible evidence that the defendant was at Sobibor, yet serious doubts as to whether he was at Treblinka. Even if we are comforted by the conviction that we have the right man but for the wrong act, ethical canons probably require us to alter our current position.
Given our dilemma, we have two basic options and two realistic choices.
The trial will begin soon and it’s too late to change direction because we will appear weak and indecisive. Why should we change anyway? We all believe that the seven eyewitnesses who have seen the photo spread to date are sincere and will appear credible on the stand. And even though Demjanjuk was at Sobibor, it is still possible he was also at Treblinka.
On the other hand, we have good reason to believe that Demjanjuk was at Sobibor and never at Treblinka. The American Bar Association Code of Professional Responsibility cautions against a prosecutor trying a criminal case if he has serious doubts. Even though the John Demjanjuk denaturalization case is
Based on my knowledge of the case, I strongly recommend against this first option.
We have statements from Danilchenko and two other former Sobibor guards placing Demjanjuk at the camp in March 1943. As a Sobibor guard, Danilchenko tells us, Demjanjuk assisted directly in the prosecution of civilians. The information from the three guards dovetails with the Trawniki card. Furthermore, Demjanjuk said in his visa application form that he was a farmer in the village of Sobibor from 1937 to 1943.
On the other hand, since the three statements supplied by the Soviet Union are inadmissible as evidence in their present form, our entire case will rest on the weight the judge places on the Trawniki card. Without other supporting documentation, we cannot expect more from him than finding Demjanjuk culpable of being an involuntary trainee at Trawniki.
I consider this option tactical suicide and a legal blunder. That leaves us with only two ethical choices.
If we do not believe Demjanjuk was at Treblinka and cannot prove at this time that he was a guard at Sobibor, we should drop the case—at least until the Soviets make Danilchenko available for a deposition. If we adopt this choice, however, there will be political fallout, and the judge may not be willing to allow us to refile at a later date when we are fully prepared.
This option focuses on what we believe to be true—that Demjanjuk was an extermination camp guard. It eliminates what we doubt to be true—that he was Ivan the Terrible. This option will not destroy the denaturalization case against Demjanjuk because he was an armed guard at a death camp and lied about it to the vice consul.
On the other hand, since we cannot now prove with clear and convincing evidence that Demjanjuk was at Sobibor, and we do not believe he was at Treblinka, this choice is a simple ruse to skirt the ethical problems of Option A.
In the past, I opposed amending the pleading to include a reference to Sobibor and Trawniki because I believed that Demjanjuk could not have been both Ivan the Terrible and the Sobibor guard described by Danilchenko. And in the past, OSI has opposed the dismissal of the case despite gnawing doubts about its veracity.
I recommend we perform radical surgery on our pleading. And I recommend that we make a decision about which path to follow within the next couple of weeks.
OSI director Walter Rockler called a meeting two weeks after he got George Parker’s memo. Besides himself and Parker, present at the meeting were his deputy Allan Ryan and Norman Moscowitz, an OSI attorney helping to prepare the Demjanjuk case for trial. Rockler got right to the point.
“If he [Demjanjuk] was at Sobibor, is he still subject to denaturalization under the law?” he asked. Ryan, Parker, and Moscowitz all concluded that he was.
Rockler then asked Moscowitz whether he agreed with Parker that Sobibor and Treblinka were “irreconcilable.” Moscowitz said he didn’t see the two as “contradictory.” The SS could have rotated Demjanjuk from one camp to the other as needed.
During that short meeting of ten to twenty-five minutes, the four attorneys did not discuss the ethical issue Parker had raised in his memo, and Parker did not bring it up. Rockler leaned toward dropping the case. His experience as a Nuremberg prosecutor had taught him not to give too much weight to eyewitness accounts without documentation to support them. Since the Ivan the Terrible case was based on eyewitness testimony without documentation, it should not go to trial. And to try Demjanjuk as a Sobibor guard instead of as Ivan the Terrible of Treblinka wasn’t worth OSI’s time and effort. There were other more important and better-documented cases waiting to be investigated. If Demjanjuk belonged anywhere, it would be close to the bottom of OSI’s list of alleged Nazi collaborators.
When Rockler returned to his law practice at Arnold & Porter, he left the final decision about the Demjanjuk case to his successor, Allan Ryan. Rejecting Parker’s recommendation to delay the trial, Ryan chose the status quo option—try John Demjanjuk as Ivan the Terrible.
Ryan’s decision fed Parker’s dissatisfaction. He had been upset when the Justice Department fired Martin Mendelsohn as OSI deputy director and hired Ryan over the “intense opposition” of Elizabeth Holtzman and others. Parker had been part of Mendelsohn’s inner circle, where his opinion was sought and respected. Once Ryan took over the reins, Parker felt left out. The meeting over his memo only served to strengthen that feeling. Besides, Parker never intended to make government service his life’s work. Ryan’s decision to take OSI down what Parker considered an unethical path gave him the nudge he needed.
Parker quit.
There is no evidence to suggest that Ryan was miffed or upset by Parker’s decision to return to a poorly paid job in legal services. He pressed forward on the theory that Demjanjuk served as a guard at both camps.
Danilchenko’s alleged statement, which OSI had, was part of his 1949 war crimes trial testimony. It was useful as a lead but worthless as evidence and certainly inadmissible in court for a number of reasons. Even though Danilchenko may have sworn to tell the truth, it was possible that the KGB tortured or threatened to torture him if he didn’t say what it wanted to hear. The KGB could have prepared his “testimony” and ordered him to sign it, or else. Or he could have lied hoping to get a better deal. The fact that his twenty-five-year sentence was commuted to eight years for no apparent reason tended to support the perjury theory.
