Useful Enemies

gave corsages to daughters Lydia and Irene.

The Demjanjuk family wept.

CHAPTER THIRTY Wrapping It Up

In closing, Moscowitz summarized the case against Demjanjuk, arguing that the government had met its burden of proof with convincing and unequivocal evidence.

The German army took Demjanjuk prisoner during the battle of Kerch in May 1942 and sent him to a prisoner of war camp in Rovno, Ukraine, Moscowitz began. A few weeks later, in early June, the Germans transferred him to another POW camp in Chelm, Poland. Soon after his arrival there, around mid-July 1942, he either volunteered or was selected to be trained as an SS guard at Trawniki, where he received military training. After graduation, he took an oath of loyalty to the SS and agreed to submit to them. From Trawniki, he went to Treblinka, where eight hundred thousand men, women, and children were murdered, and where he operated the diesel motor that delivered gas to the chambers. For a period of time in 1943, he also served at Sobibor. Toward the end of the war, he served in a division of Vlasov’s army, recruited by the Germans to fight against the Soviet army. Finally, he admitted in court that he lied on his visa application about where he was during the war, claiming he had been a farmer in Poland, then a forced laborer in Germany.

Next, Moscowitz began to pick the defense apart, piece by piece.

Martin wanted the court to exclude the Trawniki card simply because it was supplied by the Soviet Union and, therefore, was somehow tainted. But Schefler proved that each detail on the card was historically accurate. And Epstein proved the card was neither forged nor tampered with.

Moscowitz argued that all five Treblinka survivor-witnesses had positively identified Demjanjuk as Ivan the Terrible from either the Israeli photo spread or a second double photo spread prepared by the prosecution, or from both.

Moscowitz reminded the court that Demjanjuk was, by his own admission, both a driver and a mechanic. Then he quoted from Otto Horn’s testimony to suggest that those two unusual POW skills confirmed that Demjanjuk was Iwan of Treblinka:

“Moscowitz: This Iwan whom you picked out, is there anything else that distinguished him from the other Ukrainians?”

“Horn: Yes, he could drive. He could work the engines.”

Moscowitz reminded the court that Demjanjuk could not have been in Chelm—the core of his alibi—when he said he was because, as historian Ziemke proved, Chelm was in Soviet hands when Demjanjuk testified he was still a German prisoner there.

Ziemke also testified that the Germans only drafted into Vlasov’s army men who were already collaborating with them, not POWs whom they did not trust.

Finally, Moscowitz argued that four former American immigration officials testified that if Demjanjuk had revealed that he had been trained at Trawniki, had served as a guard in a death camp, had received the SS blood- type tattoo, or had been a soldier in Vlasov’s army, he would have been denied a visa to the United States as well as U.S. citizenship.

• • •

Martin’s closing was more complex, his job more subtle. Since he didn’t have the burden of proof, his task was to cloud the government’s case with so much doubt that Judge Battisti would have to rule in Demjanjuk’s favor.

“It is our contention that the sole issue in this case, after hearing all the testimony, has to be whether or not this gentleman seated here—Mr. Demjanjuk—was indeed the Iwan who served at Treblinka,” Martin began. “For sure, there has been no… credible testimony or evidence in reference to Mr. Demjanjuk… serving at Sobibor.”

Martin went on to argue that whether Demjanjuk was in a Ukrainian unit of Vlasov’s liberation army had no bearing in this lawsuit because it was not a charge in the government’s original pleading. Then he mounted his attack on the Trawniki card, beginning with Schefler, who testified that he had never seen a Trawniki ID card identical to the one attributed to Demjanjuk.

“Are we to assume then, that the government’s Exhibit 6 was the only type of card ever prepared like that?” Martin asked. “Is that what the government wants us to believe?”

The card should not have been admitted in the first place, Martin argued, because it was not a public document like a birth certificate. Once it was admitted over the strong objection of the defense, however, Gideon Epstein failed to test the ink, paper, and typewriter type on the original.

“He gave us no reason why,” Martin reminded the court. “This spurious document [is] untrustworthy on its face.”

Battisti stopped Martin cold.

“I have no recollection of any testimony that in any way indicates that these documents were spurious,” Battisti scolded. “[You can’t] simply come in and say, ‘this is a spurious document’ and sit down, or ‘that is a false document’ and sit down. Do you think the court can adopt a finding with that sort of evidence?”

Duly chastised, Martin continued to attack the card. Epstein was nothing more than a hired gun, he argued, and everyone knows you can find an expert to give an opinion on just about anything.

“The government did not have to use opinion testimony in regards to Exhibits 5 and 6, Your Honor,” Martin argued. “Karl Streibel was alive and supposedly, according to [the government], ready to be a witness in this lawsuit in May of 1980, less than a year ago. Indeed, the government arranged to transport defense counsel and themselves to Hamburg to this man’s deposition.”

Moscowitz objected. “Counsel is testifying to matters that are completely outside the record at this point.”

Battisti overruled him.

Martin went on to explain that the former Trawniki commandant had agreed to be deposed. But on the very morning of the deposition, the interview was canceled. Martin told Battisti that he called Streibel and asked him why he declined to testify at the last minute. Streibel said he didn’t cancel the interview. Someone called him and told him not to come to the U.S. embassy for the videotaping. No explanation was given. Streibel said he had not seen the card, but he knew it was a forgery. He would never have signed a document that did not have a date on it.

More than likely, the government probably decided not to depose Streibel because they found his answers to predeposition questions self-serving like Fedorenko’s and his memory unreliable. Be that as it may, there was no legal reason why Martin could not have deposed Streibel himself, as he had Fedorenko.

Martin went on to score a series of smaller points, like so many jabs. None of them was a knockout punch:

• Prosecution witness Heinrich Schaefer could not establish that all Trawniki men received a tattoo.

• Fedorenko had said in a sworn deposition that he was never issued a Trawniki card or any similar document.

• Fedorenko also swore he never got a tattoo.

• The Soviets knew about the scar on Demjanjuk’s back because he was confined to several Soviet hospitals for four months. There were medical records.

• Otto Horn never saw Iwan commit atrocities even though he worked right next to him at Treblinka.

• After the war, the U.S Army hired Demjanjuk as a truck driver. Surely it would have done a security check. And if they found out that he had collaborated with the Nazis, they would not have hired him.

• There was witness coaching, prompting, improper showing of the photo spreads, and exchange of information among the prosecution survivor-eyewitnesses. There were major discrepancies in the witnesses’ descriptions of Iwan, proving that Demjanjuk could not have been Ivan the Terrible.

“No one has come into this courtroom, took that witness stand, looked this man in his eyes and said, ‘You