Useful Enemies

are the one,’” Martin said.

“Why didn’t you ask?” Battisti said.

“Your Honor, this gentleman does not have to prove he is innocent here. The burden of proof is on the government.”

“Do you believe there was an Iwan at Treblinka?” Battisti asked.

“I do, Your Honor. I certainly do. And I believe that people have suffered as a consequence of this Iwan.”

Battisti then asked Martin to read Pinchas Epstein’s description of Ivan the Terrible from the trial transcripts.

Martin recited: “Twenty-two to twenty-five, tall, broad shouldered, short neck, a round face, ears protruded slightly, high forehead, with an athletic build.”

“Do you think this is a fair description of the defendant, a fairly good description?” Battisti asked.

“I didn’t know the defendant in 1942, but based upon what he testified as to how he looked, I would say no,” Martin said, “because he testified that in 1942 he was half-starved, and he looked gaunt, more or less, or skinny…. Sure it’s a good description of him now. It might very well resemble him. He might look like that, but are we going to speculate and base this decision on the fact that Mr. Demjanjuk might look similar to someone?”

Martin then went on to accuse the government of hiding the details of its investigation from the defense.

“We were never told in this courtroom how the lawsuit got started, who the investigators were, whether they conducted themselves properly and afforded the usual safeguards to the defendant….Wouldn’t the court be at least in a better position to judge the fairness of these photo spreads if, in fact, you had the persons who conducted the photo spreads to come here into this courtroom before you, take the stand, and testify to you so that you would know that there was nothing suggestive about the photo display?… You cannot revoke this man’s citizenship—the most priceless possession in the world—on the basis of closed-door investigations on the other side of the world.”

“You’re not suggesting the Soviets are conducting this trial, are you?” Battisti asked.

“No,” Martin said. Then he started to enumerate Judge Roettger’s problems with Miriam Radiwker’s photo spread at the Fedorenko trial.

“Objection.” Moscowitz argued that what Roettger thought about the photo spread was not relevant in this trial.

Battisti agreed, then tried to clear up a point in the defense testimony. Demjanjuk said that the Germans sent him to the town of Oelberg, Austria, toward the end of the war in 1945.

“Does such a place exist?” Battisti asked.

“I believe Dr. Schefler testified that he wasn’t able to find it, or had not heard of it,” Moscowitz said.

“Well, you tell me,” Battisti said to Martin. “The defendant… said he was a prisoner of war there for four to six months, and he was assigned to a unit to guard a general. Now, the professor says he never heard of the place, doesn’t know about it, doesn’t know of it. I’m asking you whether such a place exists and, if so, where is it?”

Martin held up a map. “It’s not on this map,” he said.

“What you are really saying is—you don’t know where it is, either, is that correct?”

“No, I couldn’t find it on this map.”

“The defendant said he was there as a prisoner of war about four to six months… and you don’t know where that is! None of us know where it is!”

No one could find the city on a map because they had misspelled it. The correct spelling was Heuberg, and it was in Germany, not Austria.

Martin continued his closing argument.

“If indeed this man had been a guard at Sobibor,” he said, “he would not have put Sobibor down [on his visa application] and put himself right next to this place.”

“You mean he made a mistake,” Battisti said.

“And certainly, if he had… committed all these crimes,” Martin argued, “he could have changed his name… a common practice.”

Finally, Martin made the same observation Judge Roettger had made in the Fedorenko case. One lone man had to defend himself against the combined resources of the USSR, the Israeli police, West German investigators, and the United States government.

“All these countries, these superpowers, have been brought together against this one man,” Martin argued.

• • •

Moscowitz answered the allegation.

“Your Honor, Mr. Martin is, indeed, correct that the government has expended many resources in this case, sought the help of many foreign governments…. The reason for this is, Your Honor, that thirty-five years ago, when this defendant sought the privilege of immigrating to this country, he lied about where he was during the war. If he told the truth then—even told what he tells today—this inquiry would have taken place thirty-five years ago… in Europe… when memories were fresher, when more people were alive.”

Why Fedorenko had no tattoo is open to speculation, Moscowitz argued. And his deposition contradicted his court trial testimony. Fedorenko swore in his deposition that he never saw a Kapo beat a Jew. He never saw an SS guard beat a Jew. He never even heard of an Iwan who ran the gas chambers.

“Mr. Fedorenko didn’t know much about anything,” Moscowitz said. “He saw no evil and heard no evil at Treblinka, and at this deposition, he would speak no evil of another Ukrainian.”

Moscowitz further argued that the origin and pursuit of the case against Demjanjuk was hardly secretive. The pretrial discovery period lasted at least two years, he pointed out. The defense had the names of the Demjanjuk investigators in the United States and in Israel. Mr. Martin could have deposed them at any time, or he could have submitted interrogatories.

Continuing the argument, Moscowitz returned to the Trawniki card.

“[Mr. Martin] mentions by the way, Your Honor, that it is easy to get an expert to come into the court to give an opinion about anything you want,” Moscowitz reminded Battisti. “It is easy apparently for anyone except Mr. Martin, who could get no expert that he was satisfied with, apparently, to come into court…..He never asked Mr. Epstein why he didn’t do the other tests…. The answer would have been: ‘They weren’t necessary.’… The defense has put on no evidence about the credibility of these cards. All he asks are further questions about them.”

Next, Moscowitz attempted to prove to the court why the Trawniki card could not have been a forgery.

“There are only two ways, Your Honor, this card can be phony,” he explained. “One is to make up the card from fresh in this KGB forgery factory, some place in Moscow that Pap was testifying about. Mr. Epstein indicated that is not possible. The signatures of Streibel and Teufel are genuine.

“The only other possibility is that you take a genuine card with Streibel’s and Teufel’s signature and you cross out all the information on someone else, and you stick in information about John Demjanjuk…. That is not possible because Mr. Epstein testified there was no tampering with the surface of the card.”

Moscowitz next addressed the height discrepancy issue. He pointed out that Demjanjuk testified that he was six feet, one inch tall. On his petition for naturalization, he said he was six feet even. The card says he was five feet, ten inches tall.

“A two-inch difference is hardly significant,” Moscowitz concluded.

Actually, the Trawniki card said Demjanjuk was five feet, eight inches tall, a four- to five-inch difference.

Finally, Moscowitz tried to buttress the prosecution’s weakest point—Demjanjuk’s service as an SS guard at Sobibor.

“Evidence strongly suggests that for some period of time—we can’t say how long or how short—he was at Sobibor,” Moscowitz argued.

He pointed out that Heinrich Schaefer testified that it was a common practice to transfer guards between