Useful Enemies

inside and outside his courtroom, Judge Frank Battisti donned his robes to decide the life and death of John Demjanjuk.

CHAPTER TWENTY-THREE The Opening Salvo

Frank Battisti was no Julius Hoffman, but he was just as controversial. As chief judge in the Northern District of Ohio, he had presided over the trial in 1974 during which eight Ohio National Guardsmen were accused of violating the civil rights of the four Kent State University students whom they had shot and killed during the campus rampage in May 1970. Battisti found the Guardsmen not guilty. His decision angered the Kent State student body and civil rights leaders alike.

To some, Battisti looked like a right-wing bigot.

Two years later, in 1976, Battisti ruled that Cleveland’s public school system was guilty of racial discrimination and ordered school busing. His decision angered the Board of Education and most of the city. Death threats followed.

A fellow judge observed: “He withstood much of the hostility and acrimony, bitterness and ostracism of the community, in order to be true to his oath and the Constitution.”

To some, Battisti looked like a civil rights hero.

Battisti wasn’t controversial just for his legal decisions. To some of his peers, he was an independent judge known for compassion. To others he was a courtroom dictator. Demjanjuk’s defense attorney got a taste of the dictator when Battisti dismissed his motion for a jury trial, approved the government’s amended pleading on the eve of the trial, and refused to grant a sixty-day extension.

Facing Battisti for the government were Assistant U.S. Attorney John Horrigan and OSI attorney Norman Moscowitz. The Justice Department had assigned Horrigan to the Demjanjuk case long before OSI was created, and OSI was not happy that Horrigan was still attached. It blamed him for delaying the trial by one year, either because he wasn’t committed or because he shoved the Demjanjuk case to the bottom of his priority list. To forestall further delays, OSI wanted total control. Given the ages of the defendant and witnesses, one year was a long time.

The Justice Department compromised. It kept Horrigan on the case but appointed Moscowitz lead counsel.

Moscowitz complemented Horrigan. He was a sharp, clear thinker, a good legal strategist, and he knew the jots and tittles of the case from Demjanjuk’s capture by the German army in 1942 to his surrender to the Allies in 1945. If Horrigan and Moscowitz had serious differences about how to try the case, they wouldn’t show up in the courtroom.

Compared to Horrigan, however, Moscowitz had little courtroom experience and even less in dealing with the most crucial issue in all Nazi collaborator cases—elderly and emotional survivors who positively identify a Nazi collaborator after thirty or more years.

John W. Martin, an African American, led the defense team. As a former prosecutor for Cuyahoga County, which includes Cleveland, Martin knew his way around the courtroom, and Judge Battisti was no stranger to him. A legal aid volunteer, Martin was known in Cleveland for his big heart and fierce dedication. Once on a case, he worked seven days a week, sometimes for nothing or nearly nothing. Martin took the Demjanjuk case when no one else would touch it.

Martin and his defense co-counsel, Spiros Gonakis, were at an extreme disadvantage. Because Demjanjuk didn’t have deep pockets, their pretrial investigation and travel were limited. How could they afford to go to Israel to depose Miriam Radiwker? Or to the Soviet Union to seek permission to take videotaped depositions of witnesses willing to testify that Demjanjuk was not Ivan the Terrible? How could they hire expensive document examiners to test the Trawniki card photos? Or pay an expert witness to testify in court?

In spite of that handicap, the defense had an important edge over the prosecution. The government carried the heavy burden of truth. The defense didn’t have to prove a thing. Its job was to make the government’s evidence appear unconvincing and to raise as many doubts about it as possible. And there was the rub. There was no jury. It was much easier to sow doubt in a panel of impressionable men and women than to sway a single judge who knew all the lawyerly tricks of the courtroom game.

Based on its pleading, the government had to prove in a clear, unequivocal, and convincing way that John Demjanjuk:

• Was trained at Trawniki.

• Was Ivan the Terrible.

• Could have been a guard both at Sobibor and at Treblinka.

• Committed specific crimes that made him morally unacceptable for U.S. citizenship.

• Lied on his visa application in a material way.

• Would have been denied a U.S. visa and citizenship if he had revealed his wartime activities.

• • •

Forty U.S. marshals guarded the courtroom on the morning of the first day of the trial. They lifted a knife from a man trying to enter and they arrested a woman causing a disturbance in the hall outside the courtroom. But for the most part, the atmosphere in the court building was serious and calm.

Dressed in a dark blue suit and light blue shirt, John Demjanjuk sat on a pew inside the elegant courtroom with its green-gold marble walls and vaulted ceilings. Hands folded in his lap, he sat straight and appeared serene. Sitting in the pew behind him were his wife, Vera, and their children—Lydia, Irene, and teenager John Jr. In the stenographer’s office at the rear of the courtroom was a red and tan tote bag with coffee and the Demjanjuk family’s lunch.

The courtroom and gallery were packed with Ukrainians and Jews waiting in almost reverential silence for Battisti to enter. Sprinkled throughout the courtroom were Ukrainian men and women wearing traditional blouses and skirts. They added a splash of color.

Judge Battisti entered. The prosecution asked prospective witnesses to leave the courtroom, as was customary. Battisti intervened. Vera was a prospective defense witness. He told her she could stay. As it turned out, she would not take the stand in her husband’s behalf. She was too emotionally distraught.

The prosecution called its first witness to the stand, Earl F. Ziemke. Before he began his direct examination of Ziemke, Horrigan told Battisti that he should feel free to interrupt him to ask the witness questions.

“Oh, I will feel free,” Battisti replied.

The courtroom broke out in laughter. Demjanjuk smiled.

Earl Ziemke was the first indication that OSI had learned a lesson or two from the Frank Walus fiasco. To win denaturalization cases would demand a stable of historians to find documentary evidence, evaluate it, and testify to its authenticity. A marine during the war, Ziemke had fought in the Pacific battles of the Caroline Islands and Okinawa. He was a professor of history at the University of Georgia and a specialist in World War II and the eastern front. He was a perfect prosecution witness—clear, authoritative, with documentation to support his every historical argument.

Demjanjuk had sworn in a pretrial deposition that the Germans had captured him in Kerch, sent him to a POW camp in Rovno in western Ukraine for a few weeks, then transferred him to another POW camp in Poland whose name he could not remember. With that testimony as a foundation, Ziemke’s single task was to show that Demjanjuk could have arrived at Trawniki by July 1942. If he failed, much of the government’s case would crumble.

Guided by Horrigan’s methodical questioning, Ziemke constructed a historical framework and time line from Demjanjuk’s capture during the battle of Kerch sometime between May 8 and May 19, 1942, based on German and Soviet war records, to his brief incarceration in the Rovno POW camp in western Ukraine in May–June, to his arrival at Trawniki in July. To support that time line, Horrigan sought to determine how Demjanjuk got to Rovno.

“Were there any Soviet prisoners of war taken by the Germans during the battle of Kerch?” Horrigan asked Ziemke.

“Yes… The figure varies,” Ziemke testified. “The most conservative figure is 125,000.”

“What did the Germans do with the POWs they captured at Kerch?” Horrigan asked.