death camps after they left Trawniki. Then he all but admitted that the government did not prove that Demjanjuk served at Sobibor. “To some extent, Your Honor, this is speculative… but it all fits together.”
Finally, Moscowitz tried to make the most of Demjanjuk’s claim on his visa application that he was a farmer in the village of Sobibor during the early war years.
“The defendant still hasn’t explained the odd coincidence—the extraordinary coincidence—that out of the thousands of hamlets, towns, big cities in Poland to hide,” Moscowitz argued, “he put down the poor, small, insignificant farming village of Sobibor—a place [near the death camp] where he contends he never was.”
The next but far from final word was Judge Frank Battisti’s. It would be a three-month wait.
CHAPTER THIRTY-ONE
The defense had tried to argue that the Trawniki card was tainted, tampered with, and forged. In his twenty-five-page ruling, issued on June 23, 1981, Judge Battisti dismissed that attempt in one sentence. “At no time during the entire course of the trial,” he ruled, “was
Battisti ruled that Wolfgang Schefler had proved without a doubt that the Trawniki card was historically accurate. Schefler’s testimony was corroborated by Heinrich Schaefer, the paymaster at Trawniki, who testified that the school issued ID cards to all its trainees, and that each trainee had had his photo taken in the summer of 1942, the year Demjanjuk arrived at the camp. Schaefer further identified as authentic the signatures of Karl Streibel, the camp commandant, and Ernst Teufel, the supply officer.
Battisti ruled that Gideon Epstein had proved without a doubt that the Trawniki card was authentic. Battisti pointed out that Epstein had performed a series of scientific tests both on the two photos of the card and on the original. Based on those tests, Epstein concluded that the signatures of Streibel and Teufel were authentic and that the card had not been tampered with and was not a forgery.
Battisti duly noted, but was not swayed by, the weaknesses in the government’s case for authenticity: The card lacked a date; both Schefler and Schaefer admitted they had never seen an ID card exactly like the one attributed to Demjanjuk; Epstein did not analyze the ink, paper, or typewriter type on the card; Epstein’s analysis of Demjanjuk’s signature was inconclusive; and Demjanjuk’s categorical denial that the signature on the card was his because two apostrophes were missing in the Cyrillic script, making the signature grammatically incorrect. None of these weaknesses, singly or taken as a group, created a serious doubt in Battisti’s mind.
Finally, Battisti found that the photograph on the Trawniki card “clearly reflects the facial features of the defendant.” He emphasized that Demjanjuk did not deny the picture was a photograph of him.
“Possibly it is me,” Demjanjuk had admitted.
“On the basis of
Next, Battisti turned his attention to the six Treblinka witnesses—five Jewish survivors and Otto Horn, the German guard who supervised the burning of the corpses. Battisti pointed out that each witness worked near the gas chamber buildings and the building housing the motor that produced the lethal carbon monoxide gas. That placed them in a position to see Iwan on an almost daily basis.
Battisti noted that each witness had identified Demjanjuk as Iwan from at least one of several photo spreads. The defense sought to exclude that evidence on two grounds. First, it argued that the identification processes in Israel, West Germany, and elsewhere were conducted outside the presence of the defense counsel, violating the Fourteenth Amendment guarantee of due process. Battisti ruled that the
“Our legal system has always placed
Battisti pointed out that the defense had, in fact, conducted rigorous cross-examination of all six witnesses. The opportunity to do that “adequately compensated for the absence of the defense counsel at the pretrial identification proceedings.”
Second, the defense argued for the exclusion of the pretrial identification testimony of four of the five witnesses from Israel—Rosenberg, Lewkowicz, Epstein, and Rajgrodzki—because they had identified Demjanjuk as Ivan the Terrible from the deeply flawed photo spread offered by Miriam Radiwker. The defense argued that pretrial identifications of these four witnesses were “conducive to mistaken identification.”
Unlike Judge Roettger in the Fedorenko case, Battisti gave little weight to the flaws in the Radiwker photo spread. He ruled that “thorough cross-examination of each witness failed to depreciate, in any way, the certainty of the identifications made by each witness.”
Battisti went on to say: “Each witness identified defendant as Iwan, known from Treblinka, on the basis of the defendant’s visa photograph. In addition, four of the five witnesses shown defendant’s picture on the Trawniki card identified him. The fifth, Rajchman, who failed to select the card photograph at a pretrial session did so in open court. There is no indication that the investigators conducting the identification procedures, in any way, suggested the identification of the defendant’s photographs.”
Battisti concluded: “An examination of the
Finally, Battisti turned his attention to the witnesses’ physical description of the Iwan they remembered at Treblinka. “It may be fairly said,” the judge observed, “that the following general description was offered by all the witnesses: young man, twenty-two to twenty-five years of age, tall, strong physique, dark or dark brown hair.”
After giving no weight to height or hair-color discrepancies, Battisti noted that the defense offered the deposition testimony of Feodor Fedorenko. Defense counsel Martin had interviewed Fedorenko a few days before the end of the trial, with Battisti’s permission. The convicted former Treblinka guard swore he did not recognize the man in either the Trawniki card photo or in the visa application photo. And he swore he did not know a Treblinka guard named Iwan who operated the gas chambers.
“The Court finds that the testimony of Fedorenko is not credible,” Battisti ruled. He then concluded: “Since the Court finds both the pretrial and trial photographic identification to be reliable, it must be concluded that defendant was present at Treblinka in 1942–1943…. Since the Court has found that defendant was present both at Trawniki and Treblinka, it is not necessary to determine whether defendant was
Next, Battisti went on to review Demjanjuk’s testimony, which raised several serious doubts in his mind. Most important, he found that the authenticity of the Trawniki card “undercut” Demjanjuk’s credibility and most of his testimony. He noted that Earl Ziemke showed that it was unlikely that Demjanjuk was a POW at Chelm in the fall of 1944, as Demjanjuk claimed, because the Soviets occupied the camp by that time. Battisti pointed out that Demjanjuk’s admission that he had a blood-type tattoo “raised serious questions” about his whereabouts during the war and the veracity of his testimony. And he noted that Schefler had testified that only persons affiliated with the German SS were given such tattoos, and that it was unlikely that any ordinary Russian POWs would be so marked.
The core of the defense’s case was that Demjanjuk lied on his visa application because he was afraid of repatriation to the Soviet Union, where he would be executed as a deserter. Battisti found that fear specious and he gave it no weight or serious consideration. (As the Supreme Court had ruled in the Fedorenko appeal, the Displaced Persons Act of 1948 did not make a provision for extenuating circumstances.) Battisti further found that Demjanjuk’s membership in Vlasov’s liberation army was, like his service at Sobibor, irrelevant in and of itself, given that the government had proven without a doubt that Demjanjuk was at Trawniki and Treblinka.
Finally, Battisti reviewed the testimony of immigration officers Daniel Segat, Leo Curry, and Harold
