PART I
The new Netflix documentary series titled ‘The Devil Next Door” should more aptly have been called “The Trial,” for the story of John Demjanjuk has more to do with Franz Kafka and his world of bizarre predicaments, incomprehensible bureaucracies and surrealistic outcomes than any semblance of law and justice. It is the story of government abuse in the United States driven by obsessed prosecutors and an Israeli legal system hell bent on using Demjanjuk to educate its young about the horrors of the Holocaust. The viewer is left with the feeling that no one is safe when governments prosecute an individual for reasons other than seeking the truth and justice.
The co-producers/directors of the five-part program that debuted on November 4, Yossi Bloch and Daniel Sivan, do not try to establish guilt or innocence. Instead, they take us on a journey that leaves few heroes and only grotesque villains and a sadness amid the tragedy of millions of innocent lives lost in the Holocaust and a disquieting reckoning that justice for the living and the dead is fleeting at best. Can there ever be justice without revenge? And, if so, what is the distinction?
We are introduced to John Demjanjuk of Seven Hills, Ohio, a small suburb of Cleveland, close to the Ukrainian Village section of Parma with its majestic gold cupolas glistening in the sun. Demjanjuk is a quiet, dedicated family man who attends church regularly and works at the local Ford plant. One day in August 1985, his serene life is uprooted when he is charged with being Ivan the Terrible of Treblinka, a sadistic monster who took pleasure in torturing and defiling men, women and children as they walked to their deaths in the gas chambers. Because these grotesque crimes were not committed in the United States, the sole recourse for the federal government is to void Demjanjuk’s citizenship and then deport him.
But, why to the State of Israel, where he would face criminal charges and execution by hanging for crimes against humanity? Certainly, a fitting end for Ivan the Terrible – but is it a just end for John Demjanjuk?
The Office of Special Investigations (OSI) was established within the U.S. Department of Justice in 1979 to search out and prosecute for denaturalization and deportation Nazi collaborators and war criminals hiding in the United States. Prior to Demjanjuk, the OSI had prosecuted a handful of such war criminals and, as Chief OSI Prosecutor Eli Rosenbaum put it, “we have to act quickly because the victims are dying every day.” With the alleged perpetrators also dying, there was tremendous public and political pressure for the OSI to find defendants to prosecute; after all, without defendants the OSI’s mandate would expire and the office would be shuttered.
Conveniently for the OSI, a list of war criminals hiding in the United States was provided by an otherwise unidentified man named “Dennis Goldman,” who is mentioned only once in the program, but apparently acquired the list from the KGB while in Moscow. Once the OSI’s attention came upon Demjanjuk, the KGB further assisted the prosecution by providing a copy of an identity card that came to be known as “the Trawniki ID card.” The evidence linking Demjanjuk to the notorious concentration camp consisted of two types of evidence: the ID card and direct eyewitness testimony. Netflix is clear about the KGB’s motivation: Ukrainian Americans and the American Jewish community were the two most outspoken and effective anti-Soviet groups in the United States, and driving a wedge between them was the goal of the KGB. The Russian Soviets also took glee at “exposing” America’s democracy as a haven for Nazi collaborators.
Demjanjuk’s U.S. citizenship was voided in 1981, on the grounds that he had failed to disclose upon entering the United States that he was Ivan the Terrible of Treblinka. After a long court battle in the U.S., he was extradited to Israel in February 1986.
The actual criminal trial began in Jerusalem in early 1987 and was held not in a courtroom but in the large auditorium of the International Convention Center. Speaking today, Yoram Sheftel, Demjanjuk’s Israeli attorney, tells us this marked the first and only trial in Israel’s history to be broadcast beginning to end, with some 16 cameras in place to record the drama. It was, quite literally, a “show trial.”
A key witness for the prosecution was Treblinka survivor Gustav Borax, whose testimony was heart-wrenching and horrid. Sheftel raised the point during the trial that the gruesome details of what occurred at Treblinka had no bearing upon the identity of the perpetrator. He offered to stipulate or agree that such horrendous acts had occurred, only to be verbally slammed by Chief Judge Dov Levin and directed to withdraw his words or be held in contempt. One of the other Judges, Dalia Dorner, made the twisted justification that it is only by hearing the grotesque details of Treblinka that you can value the identification of Demjanjuk as Ivan the Terrible. Even the courtroom sketch artist, Joanne Lowe, jumps in with a commentary about how Demjanjuk sat motionless and showed no emotion, “He was just blank,” she said, insinuating that he was cold -blooded. Of course, if he had cried, she may have said it was a sign of remorse and guilt on his part.
At a critical point in his cross examination, Mark O’Connor, Demjanjuk’s American lawyer, asks Borax, the prosecution’s lead witness, how he happened to travel from Poland to Miami, Florida, where his deposition was taken by the OSI. Borax hesitates and replies, “We went by train.” The audience sat stunned. With his mental competency now in question, Borax was asked how old he was and replied, “I was born in 1901.” Later, he was unable to recall the name of his youngest son who was killed at Treblinka. Even Demjanjuk’s own lawyer enters into the Kafkaesque world of the bizarre when the program shows him at the time of the trial taking a lie detector test before a TV audience; and his answer that he does not believe Demjanjuk to be Ivan the Terrible is ruled by the lie detector operator to be “untrue.”
Seeking to recover from the possibly senile testimony of Borax, the prosecution next called another Treblinka survivor, Eliahu Rosenberg, to testify. Much more confrontational than Borax, Rosenberg demanded to look Demjanjuk in the eyes. Normally, in most courts throughout the world, a judge would not entertain, much less allow, such close quarters between a defendant and a prosecution witness.
But, this was not a normal court. After Rosenberg walked across the stage and stood only a few feet from Demjanjuk, the defendant extended his arm to shake hands with the witness. Rosenberg and the audience went into an uproar. Once back in the witness box, Rosenberg yelled, “I saw his eyes, his murderous eyes.” This statement would prove important to the defense and damning to the prosecution later in the trial.
During Rosenberg’s testimony, a Nazi hunter named Tuviah Friedman brought exculpatory documents to the attention of Demjanjuk’s defense counsel. In August 1943, there was a prison uprising at Treblinka during which inmates attacked the sleeping guards in an attempt to gain their weapons. The documents presented by Friedman consisted of a 64-page affidavit handwritten in 1945 by the same witness, Rosenberg, in his native Yiddish language. Rosenberg describes in great detail how on August 2, 1943, he saw fellow inmate Borax kill Ivan the Terrible while he was sleeping with a spade. Only 300 prisoners escaped during the uprising and, of these, only 70 saw the end of the war.
Confronted with his 1945 writing, Rosenberg’s only explanation for his perjury was to say that he believed it was true “with all my heart” when he wrote it; but, he continued, it could not be true because “if he died over there, he would not be sitting here.” That logic is, thankfully, irrefutable. As much sympathy as one must have for the witnesses who were brutalized at Treblinka and whose loved ones were killed, there is no room for excusing Prosecutor Michael Shaked, who sounds like a psychoanalyst when today he attempts to explain the 1945 affidavit and the killing of Ivan as a lie by saying, “Maybe Rosenberg needed something heroic to balance the guilt [he felt at surviving Treblinka].” Somehow, the lead prosecutor does not consider that maybe it was the identification of Demjanjuk as Ivan the Terrible that was the lie.
The prosecution’s attempt to be quasi-scientific fared no better when Patricia Smith, a facial recognition expert, was called to testify. Smith said at trial that there was little room for doubt based on facial features that Demjanjuk was the person shown on the Trawniki ID card. Yet, when interviewed for this series, Smith tries to explain her testimony by saying, “It’s a contentious topic. I was very tense the whole time,” before finally admitting that her facial recognition methodology “wasn’t precise.” Defense lawyer Sheftel’s facial experts, using video facial overlays, were more direct and called her methodology “total garbage.”
With the eyewitness and facial recognition testimony in tatters, the prosecution chose to focus on the only other evidence it had – the Trawniki ID card. In preparing for trial, the defense counsel met with SS Commandant Karl Streibel, who was in charge of Trawniki and still alive. He confirmed that there was no such identity card used at Trawniki like the one the prosecution was offering into evidence. Yes, Demjanjuk is on trial for his life, and the SS commandant of the camp is alive and well in Germany. Franz Kafka himself could not have imagined this charade.
The Trawniki card that came to the OSI via the KGB had more questions surrounding it than answers. Edna Robertson, the defense’s handwriting analyst and document expert, testified that the card showed that one of the two ink stamps was on the photo but not the card, meaning that the photo was not originally attached to that card and that two stamps were used, suggesting a forgery; the signature on the card was not the signature of Demjanjuk but a forged signature; and two large staples on the photo confirmed that the photo had not been attached to the card because the card showed no staple holes. Attorney O’Connor summarized the Trawniki card by saying, “The chain of custody is direct from the KGB.”
At this point, the Netflix program itself veers into the world of the bizarre by interviewing Lawrence Douglas, a law professor, about O’Connor’s father’s motives in helping pass the Refugee Relief Act admitting World War II refugees into the U.S. and describing the elder O’Connor as “a guy who seemed quite anti-Semitic and flirting with Holocaust denial.”
The only thing Israeli Prosecutor Shaked could say in the program is that the claim of “forging of the card is farfetched,” because “We checked everything… checked by the top experts of the world.” One can only wonder why Mr. Shaked did not have these top experts testify at the Jerusalem trial, for their testimony is nowhere to be found in the Netflix series.
As the trial proceeded, in August 1987 the defense interviewed a former Nazi SS man stationed at Treblinka, Otto Horn, who is asked in a video whether Demjanjuk, based on a photo layout before him, was Ivan the Terrible. His response, translated on the screen from German was, “That is Ivan, probably.” A week before Demjanjuk was to take the witness stand, O’Connor, the New York lawyer, was fired from the defense team.
Sheftel proceeded with the defense when a very serendipitous event took place. A janitor employed by the U.S. Justice Department was using a neighboring McDonald’s restaurant dumpster to dispose of refuse containing OSI documents. An unnamed Estonian woman was collecting these bags of garbage and made them available to Ed Nishnic, Demjanjuk’s son-in-law. These OSI documents showed conclusively that, as far back as 1979, the OSI prosecutors themselves had doubts about whether Demjanjuk was in fact Ivan the Terrible.
OSI memos cited Ivan’s height as 6 feet one inch, whereas Demjanjuk was 5 feet 6 inches. An OSI investigator signed a sworn affidavit that Horn, the very helpful SS man, had identified Demjanjuk “unequivocally.” Yet, OSI internal documents indicated that Horn had to be coached and prepped to identify Demjanjuk. In the words of law professor Douglas, this was a “smoking gun.”
In the Netflix program, former OSI Director Rosenbaum dismisses his office’s failure to inform the defense of these irregularities as an “unfortunate breach of security,” apparently referring to the fact that they were caught and not to the wrongful suppression of exculpatory evidence by the OSI, a part of the Department of Justice and the U.S. Government. Sheftel said it best: ”Every person from the OSI in this case is a kind of legal murderer. They knew all along Demjanjuk was not Ivan the Terrible, and they kept their dirty mouths shut, and they continued to conceal the evidence which proves that he’s not.”
Bohdan Shandor is an attorney-at-law and president of the Ukrainian American Bar Association. The views expressed herein are strictly his own.
Mr. Shandor’s review continues in next week’s issue of The Ukrainian Weekly.