Richard Rashke - Useful Enemies

Unfortunately for the Demjanjuk family, Amir Shaviv would not decide the fate of John Demjanjuk. Judges Dorner, Tal, and Levin would. And as the family saw it, the defense had failed to sow a doubt in the bench. Someone was to blame, and that someone was Mark O’Connor.

The family decided to pressure Demjanjuk into firing O’Connor. But that would leave the defense leaderless and in the lurch just days before it must mount its counterattack.

Mark O’Connor was more than a lawyer whom the Demjanjuk family hired to defend their husband and father. He was a supportive and understanding friend who had hung in there with them for five turbulent, frightening years. But the list of gripes against O’Connor was long and growing, and sacking him was no spur-of-the-moment decision. It was months in the making.

At the end of April 1987, more than two months after the trial had begun and just before the prosecution was about to present its five expert witnesses, John Demjanjuk Jr., or “Johnnie,” as everyone called him, returned to Jerusalem from an extended visit in Cleveland with his mother, his sisters, Lydia and Irene, and Irene’s husband, Ed Nishnic, who controlled the Demjanjuk Defense Fund purse strings. Johnnie immediately called Yoram Sheftel and asked him to come to his hotel. It was urgent.

Johnnie got right to the point. “Ed and I spent a lot of time in Cleveland discussing what’s going on,” he told Sheftel. “And we reached the conclusion that O’Connor is not living up to our expectation. His performance is flawed, and as a result, the defense is in a very bad position.”

It was much worse than flawed. According to Sheftel, the defense had no defense. Three days before Johnnie returned to Jerusalem, O’Connor had let it slip during a discussion with Sheftel that he didn’t have a single defense witness lined up, except John Demjanjuk. And he hadn’t even begun to prepare Demjanjuk for his make-or-break testimony.

The admission shocked Sheftel. The defense was coming down to the wire and it had no strategy or counterattack. Realizing he had said too much, O’Connor asked Sheftel not to tell the family. Sheftel agreed. Johnnie’s message from Cleveland changed his mind.

When Sheftel told Johnnie what O’Connor had admitted, Johnnie wasn’t surprised. He had attended much of the trial and saw for himself how O’Connor’s cross-examinations seemed rambling and pointless. Johnnie told Sheftel that his brother-in-law Ed would be calling the next day, and he wanted Sheftel to level with Ed, to tell it like it was, to hold nothing back. This was no time to be kind or forgiving.

The next day, Sheftel laid it out for Ed, chapter and verse:

O’Connor was so autocratic that Sheftel and Gill would only learn about defense motions and concessions when Judge Levin announced his rulings on them in the courtroom.

O’Connor never presented his co-counsels with an overall defense strategy because he didn’t have one. He bumbled his way along, scoring an inconsequential point here and a dubious point there. He completely missed prosecution weaknesses.

O’Connor came to his cross-examinations totally unprepared and without a plan. And he refused to listen to the advice of his co-counsels on which points to make and which pitfalls to avoid.

O’Connor’s questions were so convoluted and meandering that Judge Levin frequently had to ask him to rephrase them so the witness—and the court—could understand them.

O’Connor constantly lied to Demjanjuk about what was really happening in the trial. He took credit for every success and blamed Sheftel and Gill for every failure. And he conspired to undermine Demjanjuk’s confidence in his co-counsels.

Sheftel thought that O’Connor was more interested in Mark O’Connor than in his client. He was always giving interviews to the press and smiling into TV cameras instead of preparing his cross-examinations. He was so vain that he once asked Sheftel to request the court to install a TV monitor at the defense table so he could watch himself in real time. And he was so insensitive that he asked Sheftel to petition the court for permission to allow O’Connor’s wife to sit at the defense table as a paralegal, which she was not.

In sum, Sheftel told Ed Nishnic that the defense was losing the case now, and would most certainly lose it in the end, if O’Connor stayed on.

Sheftel had two private issues with O’Connor that he didn’t share with Ed. One was philosophical and the other was deeply personal.

O’Connor believed that the Demjanjuk case could be won, and that he was indeed winning it. Sheftel believed that the court had already made up its mind. John Demjanjuk is Ivan the Terrible and must die in the gallows like Eichmann. Sheftel believed that the defense was certain to win, not in Dov Levin’s court, but on appeal in Israel’s Supreme Court. The defense strategy, therefore, should be to build a strong case for an appeal.

Sheftel had already put both courts on notice. Two weeks before his conversation with Johnnie, he had filed a motion requesting the three judges to resign because of their hostility toward Demjanjuk. When they refused, he appealed to the Supreme Court and lost.

Sheftel also had a deeply personal motive for exposing the failures of Mark O’Connor. It was almost a vendetta. O’Connor had not stood up for Sheftel when Judge Levin dressed him down in his chambers during a recess after he had called Levin’s proceedings a “show trial.” All three judges were furious at the insult, which, of course, had been caught on camera.

“I don’t understand why the court is treating the defense so harshly,” O’Connor complained to Judge Levin during the in camera scolding.

“The court is treating the defense with great respect,” Levin said. “The problem is not the defense. The problem is Mr. Sheftel , who does not know how to behave and who dares accuse the court of conducting a show trial…. Sheftel, you will apologize straight away and beg the court’s pardon.”

Then Levin softened. “This is the trial of your life. Don’t ruin yourself,” he advised Sheftel. “Listen to what I am saying and apologize.”

Sheftel didn’t mind apologizing. It was the begging he found humiliating. But beg he did, and most eloquently. He never forgave Mark O’Connor.

Back in Cleveland, the Demjanjuk family decided on a compromise without informing their husband and father. With his critical testimony looming larger and ever more important, John Demjanjuk had enough to worry about. The family told O’Connor that they expected the defense to finally start working together like a team. Autocracy was out. Democracy was in. From now on, each defense decision would be decided by vote. The majority wins.

It didn’t work. O’Connor, Sheftel, and Gill soon dragged their differences into the courtroom. They bickered loudly and publicly before spectators, TV cameras, and the bench. At one point, O’Connor bluntly told the media, “I would never buy a used car from Sheftel.” It was clear to everyone who watched and listened that the defense was falling apart.

It was O’Connor who drove the final nail into his own coffin. He and Sheftel got into a heated argument over the cross-examination of prosecution witness Otto Horn, who had supervised the burying of corpses at Treblinka and had, more or less, identified Demjanjuk’s photo as that of Ivan the Terrible. The argument quickly grew angry and accusatory.

“You’re fired,” said O’Connor, who was known for his explosive temper.

“You’re hired,” said Johnnie, who viewed the argument as the final straw. And with that, Sheftel became the Demjanjuk family’s personal attorney and trial advisor.