Richard Rashke - Useful Enemies

The court needed to hear John Demjanjuk say that he wished to replace his lead counsel. Demjanjuk began his plea: “My family has decided to discharge O’Connor because he continued to work from my detriment—”

“And what is your decision?” Judge Levin interrupted. “What is your decision?”

“I have decided to accept my family’s decision. I am in a cage, I am in jail. So I am forced to accept my family’s decision.”

“I can accept that answer except for the word ‘forced,’” Judge Levin said. “No one is forcing you. The decision has to be yours.”

“I told you that my family’s decision is my decision,” Demjanjuk replied forcefully.

That settled, the court needed to know whom Demjanjuk chose to replace O’Connor. Sheftel offered the court a signed power-of-attorney. Given all the sneaky moves he had witnessed so far in the O’Connor firing fiasco, Judge Levin didn’t trust anyone.

“Does the defendant request that Mr. Sheftel be his defense attorney in the trial before us?” Levin asked Demjanjuk.

“Yes.”

“Did you sign the document Mr. Sheftel is holding in his hands?”

“Yes.”

“Do my colleagues and I understand correctly, that the defendant intends to tell us that from this moment on he will be represented by attorneys John Gill and Yoram Sheftel? Yes or no.”

“Yes.”

Demjanjuk then said in a strong, clear voice, “From everything that has been said here now, it seems to me that you are trying to scare me.”

Like Sheftel’s show trial comment, Demjanjuk’s accusation stung. “What kind of language is that?” Levin asked.

“Your Honor, I apologize for having used a word that wasn’t so appropriate,” Demjanjuk said. “But I’ve only got four years of education.”

The final issue to be settled was a possible delay of the trial because of a change of counsel. Levin made it clear that if Demjanjuk insisted on a postponement, it would be a deal breaker. No delay of trial was the condition allowing Demjanjuk to change his legal representation—a simple case of courtroom blackmail. Judge Levin had Demjanjuk by the throat and was squeezing. Demjanjuk gave in to the pressure and agreed not to ask for a delay.

“Does the defendant stand by his decision even if there is no postponement of the trial? Is that the defendant’s position?”

Demjanjuk said yes.

Mark O’Connor was out. According to the Demjanjuk family, he had been paid six hundred thousand dollars over the five years he served as Demjanjuk’s attorney. Yoram Sheftel was in, and he was bound to receive even more hate mail and death threats.

O’Connor returned to his law practice in suburban Buffalo. He would eventually be disbarred for one year by the Supreme Court of New York for, among other charges, “engaging in conduct involving dishonesty, fraud, deceit or manipulation… and comingling client funds with personal funds.” O’Connor would not seek readmission to the bar after the one-year penalty ended.

The O’Connor affair would have been little more than a sad and grubby struggle of attorneys over power and purse if the life of John Demjanjuk did not depend on the outcome. Was the Demjanjuk family’s decision to fire O’Connor and hire Sheftel a wise one? They didn’t have long to wait for an answer. Sheftel opened the defense of John Demjanjuk on July 27, 1987, one week after the court had accepted him as Demjanjuk’s new lead attorney.

Like the prosecution, the defense presented five expert witnesses to testify about the authenticity of the Trawniki card. As a group, they had two jobs: discredit the findings of the prosecution’s five expert witnesses and prove the card was a forgery.

The first defense expert was Edna Robertson, the defense’s answer to prosecution handwriting experts Amnon Bezaleli and Gideon Epstein. She looked promising on paper. An American psychologist from Panama City, Florida, with a master’s degree in graphology, she had made more than ten thousand signature comparisons, testified as an expert witness in more than fifty U.S. trials, and was the president of the World Association of Document Examiners (WADE).

Robertson’s testimony got off to a bad start. Prior to the trial, she had examined the original Trawniki card in the Israeli police laboratory in Jerusalem. However, her analysis had been conducted in her Florida laboratory using not original documents but enlarged photos of the card and proven signatures. Analysis from photos cast an immediate doubt on her conclusions. And unlike Bezaleli and Epstein, whose opinions were strong and conclusive, all of Robertson’s were qualified, and therefore highly vulnerable to cross-examination.

Robertson’s first two conclusions surprised Sheftel and the defense. First, both Bezaleli and Epstein had concluded that the signature of Trawniki commandant Karl Streibel was authentic without a doubt. Robertson appeared to support them when she concluded that the signature was possibly authentic. Second, both Bezaleli and Epstein had testified that the signature of supply officer Ernst Teufel was probably authentic. Sheftel expected Robertson to testify that the signature was forged. Instead, she concluded that it was fraught with so many problems that no firm conclusion could be reached about it genuineness.

However tentative she was on her first two conclusions, Robertson was far from a total disappointment. Her next set of conclusions delivered exactly what Sheftel had hoped for:

• The signature of Iwan Demjanjuk was a fake. Bezaleli and Epstein had concluded that the Demjanjuk signature on the card was probably authentic.

• The yellow-orange spot on the card was a solvent used to loosen the photo so that it could be removed. Epstein had testified that the blotch was probably dried glue, but he couldn’t be sure because he wasn’t a chemist. Neither was Robertson.

• Two different kinds of inks were used to impress the seal on the Trawniki card, strongly suggesting forgery. Both Bezaleli and Epstein testified that only one ink was used.

• The original photograph on the card was removed and replaced. Both Bezaleli and Epstein agreed that the photo on the Trawniki card had either fallen off or had been removed. Because they couldn’t tell which, neither could say whether the photo on the card was the original photo or not.

• The stamp impression on the photo was made with two different stamps to give the impression that one stamp had been used. Epstein had concluded that only one stamp had been used.

• The various ink and pencil colors on the Trawniki card were highly suspicious, suggesting forgery. Epstein found them to be normal on a World War II document.

The differences between the prosecution and defense testimony up to this point were as stark as they could be. Robertson’s string of observations and conclusions added up to forgery: Two different stamps and inks were used to make the phony seal on the picture; a solvent was used to deliberately remove the photo, which was then replaced by a different photo; and the Demjanjuk signature on the card was a fake.

Bezaleli and Epstein had concluded that the Trawniki card was authentic.

Michael Shaked conducted the cross-examination of Edna Robertson. He wore the white hat in the courtroom and, as far as survivors and their families were concerned, Mickey Shaked, as he liked to be called, was a hero. Born in Israel, he had graduated from Hebrew University’s school of law. As an assistant DA, he was a dangerously modest and unassuming man with a soft-spoken voice. Friends and foes alike agreed that he came to a cross-examination with a sharp scalpel and better prepared than the witnesses themselves. His treatment of those unfortunate enough to face him often bordered on brutal.