CONCLUSION
In Episode 4, the Netflix series “The Devil Next Door” picks up on the eve of John Demjanjuk’s trial testimony before the Israeli court. Under Israeli law, a defendant’s failure or refusal to testify is considered evidentiary, and the court can infer guilt from such failure or refusal.
Israeli Prosecutor Michael Shaked characterizes Demjanjuk as “having chosen the best defense. His defense is ‘I was not here, not here, not here. I was a POW.’ ” Shaked then asks incredulously, “How can you break such an alibi?” Most attorneys would answer that, as a prosecutor, you “break” the alibi by proving that Demjanjuk was at Treblinka.
Next in the program, Shaked and OSI Head Eli Rosenbaum each make much of the name “Sobibor” being handwritten on Demjanjuk’s U.S. entry visa application. Looking back, Shaked says “this is a fingerprint that the criminal leaves at the scene of the crime,” as if the word “Sobibor” was dispositive of Demjanjuk being Ivan the Terrible at Treblinka. The Netflix viewer is not informed that “Sobibor” was also the name of the town in Poland that still exists today and that had been there long before the Germans built a concentration camp nearby. Demjanjuk’s testimony that he had been working on a farm in Sobibor as a POW and his referencing the name of the town on his visa application arguably would be consistent with his testimony before the court that he had never been at the Sobibor concentration camp. This explanation somehow gets lost in the court’s proceeding, prompting Demjanjuk to ask the court rhetorically, as translated by me from Ukrainian into English: “Do you think if I had been at Sobibor I would put down that I had been to that place?” The Netflix translation seriously errs by translating his words from Ukrainian into English, as shown on the TV screen, to be “If I had been to Sobibor? I would never do such a thing.”
The unanimous decision of “guilty” was rendered by the three-member Israeli court on April 18, 1988; and, Judge Zvi Tal immediately read the death sentence. One of the three Judges, Dalia Dorner, commented to Netflix that “This was a man who, in all likelihood, committed these crimes and he could not be sent home. It’s cruel but it’s the law.” This remark is troublesome, because the standard of proof under Israeli criminal law is “beyond a reasonable doubt” and not “in all likelihood.” Prosecutor Eli Gabay further commented that with Demjanjuk’s execution, “revenge and justice was about to happen.” And, therein lies the concern about the prosecution, because “revenge” is not “justice.” Revenge is an outcome – in this case the execution, whereas justice is the process of how you got there.
Following the verdict, a popular former high-ranking Israeli judge, Dov Eitan, joined Yoram Sheftel in preparing the appeal to the Israeli Supreme Court. Then, only five days before the appeal was to be argued before the Supreme Court, Eitan fell out of a 15th floor window to his death below. At the death scene and shortly after the incident, an unidentified Israeli TV reporter says, “the police rule out the possibility of someone causing his death.” The bizarre and sordid story of the trial continues when an Israeli citizen, Yisrael Yehezekeli, throws acid in the face of Demjanjuk’s attorney, Sheftel, as he was attending Eitan’s funeral. Sheftel was severely burned and almost lost his eyesight. Yehezekeli, whose parents tragically perished at Treblinka, was sentenced to two years in prison. He explained his action by saying “I will take my revenge and honor my parents.”
Learning that KGB files were being made openly available, Sheftel flew to Moscow and, in his words, “the cursed Soviet soil” in September 1990 to request access to the KGB’s files. After getting nowhere, he traveled to Kyiv, where he got more of the same. After returning back to the U.S., Sheftel unexpectedly received a fax from the KGB containing seven extracts of the affidavit testimonies from so-called “Wachmann.” or guards. at Treblinka. When the Soviets took control of Treblinka in 1945, they seized numerous files and documents. They also interrogated the guards and afterwards executed all of them for being traitors. The Wachmann identified Ivan the Terrible as being a guard named “Ivan Marchenko,” who based on photos acquired from the camp looked nothing like Demjanjuk. Marchenko was tall and muscular with black hair and brown eyes, while Demjanjuk was short and stocky with blond hair and light blue/grey eyes.
For the Netflix program, Prosecutor Shaked visibly struggles to create logic to explain the eyewitnesses’ mistaken identification when he argues today that “They [Demjanjuk and Marchenko] are so different you cannot make a mistake.” In other words, the testimony of the surviving witnesses had to be believed and not the photos and testimonies of the Wachmann, because the surviving eyewitnesses could not have identified Demjanjuk if “Ivan” was really Marchenko.
Prosecutor Gabay summarily dismisses the post-Soviet-produced documents when he tells Netflix with respect to Sheftel: “Soviet documents, he was forever screaming, and yet, the first opportunity he gets, he waves Soviet testimony of the Wachmann and says, ‘This is the truth: Marchenko was the guard.’ ” Gabay continues, saying that the Wachmann were interviewed and then killed by the Soviets as traitors and “the weight that is to be given to those statements is very little.” The lack of evidentiary analysis by a prosecutor is surprising because it ignores the facts and circumstances relating to each individual piece of evidence.
The program also raises conflicting facts and doubt regarding Demjanjuk’s mother’s maiden name and a handwritten name that appears in blue ink on a Demjanjuk document that reads “Martschenko.” At the trial, the prosecutors jumped on this, apparently without determining the source of the handwritten name that appears, not as a part of the form, but on the form’s border and quite possibly was not a part of the original submission because it was written in blue ink.
An unidentified reporter in a Netflix voice-over summed up the Demjanjuk trial at that point by saying, “This has been so much more than a trial of one man’s guilt. This has been a hearing of history.”
On July 29, 1993, the Israeli Supreme Court recited the charges against Demjanjuk and the evidence presented relating to Treblinka and overturned the lower court, finding Demjanjuk innocent of all charges “on the grounds of reasonable doubt.” The audience exploded when the decision was announced and Eliahu Rosenberg, one of the eyewitness survivors, yelled out, “How can you release a vicious killer? When the court ruled he was a murderer at Sobibor?” An astute viewer can only wonder at this point what crime was being prosecuted. Treblinka? Sobibor? Or the lesson of history?
Prosecutor Gabay next tells Netflix something that is uncharted in the context of a system of justice: “We have no right not to believe these people [the survivor] over the testimonies of dead Ukrainians who were put on trial for participating in the death camps. Who elevates these guards to be greater than the survivors?” This litany of emotion over reason and revenge over justice is continued in the series by OSI Director Rosenbaum who says towards the end of the program and after the Israeli Supreme Court’s decision: “There is some doubt as to whether Demjanjuk was Ivan the Terrible. But there is no doubt he was a guard taking part in the mass murder process at the Sobibor death camp.” He then adds, speaking today, “there is no question, absolutely no question, the Trawniki card is authentic.” He continues, “Clearly, the documents established that Demjanjuk took part in the mass annihilation process.” He concludes with a Netflix visual of gruesome and horrible images from concentration death camps by saying Demjanjuk served as a guard at: Trawniki, Sobibor, possibly Treblinka, Flossenburg and the Majdanek concentration camps. “There is direct evidence that John Demjanjuk beat Jews on the way to the gas chambers,” he adds. At this point, an attentive viewer of the program is left to wonder: either there was other evidence that OSI Director Rosenbaum is referring to and Netflix did not disclose this evidence to its viewer, or that evidence simply does not exist other than in the prosecutor’s mind. Those are the two realities of the program.
After the Israeli Supreme Court’s acquittal, Demjanjuk returned to the U.S. and resumed his quiet life. In 1999, the OSI again filed a lawsuit and again stripped Demjanjuk of his citizenship and deported him from the United States for a second time. There is no double jeopardy protection for deportation cases under the U.S. Constitution because these are civil cases – even though the U.S. government may lawfully deport you to a place where you can be executed. The question for the OSI was where to deport Demjanjuk. Rosenbaum had a ready answer for Netflix: “Germany, of course, was the logical destination.” However, this does not comport with established precedent for criminal deportations. The logical and appropriate place to deport Demjanjuk would have been to Poland, for that is where the horrible crimes took place.
In May 2009, Demjanjuk was deported to Munich, Germany to stand trial for war crimes. Consider, here is a man from Ohio, being tried in Germany for his alleged criminal conduct that occurred in the sovereign country of Poland, where the victims were not Germans but Polish Jews, and such criminal conduct took place at a government-operated facility of Germany, which was now the country prosecuting him. Perhaps only Franz Kafka could fully appreciate the import of this story.
Not surprisingly, on May 12, 2011, the German court found Demjanjuk guilty of being an accessory to the murder of 27,900 Jews. This time, he was sentenced, not to hang, but to five years’ imprisonment.
Demjanjuk’s attorneys, again led by Sheftel, filed an appeal of the court’s judgment. But, before the appeal could be heard, Demjanjuk died of natural causes on March 17, 2012, at the age of 91. Under German law, Demjanjuk is presumed innocent, because the appeal was filed but never heard. Ironically, in death John Demjanjuk won his claim of innocence from which he never once wavered during his life.
Was that the end of the Demjanjuk matter insofar as informing the Netflix audience is concerned? Netflix would have you believe so, but there is still far more to the story. Not mentioned anywhere during the five episodes of “The Devil Next Door” is the U.S. legal system’s post-deportation evaluation of the OSI’s conduct in the course of the Demjanjuk prosecution. In 1993, a three-judge panel of the United States Court of Appeals for the Sixth Circuit ruled unanimously that “It seems clear that the American courts considering Demjanjuk’s fate should have had those documents that were in OSI’s possession in 1981 that pointed to Ivan Marchenko as Ivan the Terrible ….”
“We hold that the OSI attorneys acted with reckless disregard for the truth and for the government’s obligation to take no steps that prevent [the defendant] from presenting his case fully and fairly. This was fraud on the court ….” The judges unanimously criticized the OSI for “recklessly assuming Demjanjuk’s guilt” and “having a mindset that required it to please and maintain very close relationships with various interest groups because their continued existence depended upon it.”
The court ended its opinion by ruling: “We vacate the judgment of the district court and the judgment of this court in the extradition proceedings on the ground that the judgements were wrongly procured as a result of prosecutorial misconduct that constituted a fraud on the court.” In other words, according to the second highest court in the land, John Demjanjuk never should have lost his citizenship and never should have been deported to Israel in the first place.
EPILOGUE: As the Netflix docu-series indicated, the Trawniki ID card supplied by the Russian KGB and used as evidence in the prosecution of John Demjanjuk effectively accomplished its purpose of driving a wedge between Jews in America and Ukrainian Americans. Today, as Ukraine strives to develop into a modern democracy governed by the rule of law with a popularly elected Jewish president, we need to be constantly mindful of the successors to the KGB who continue to attempt to foment division, sow mistrust and instill hatred amongst Americans.
Bohdan Shandor is an attorney-at-law and president of the Ukrainian American Bar Association. The views expressed herein are strictly his own.