Richard Rashke - Useful Enemies

• Even John Demjanjuk himself probably would be unable to say with certainty that the signature made forty years ago was his own. Therefore, it was highly unlikely that Demjanjuk’s name appearing on the card was executed by John Demjanjuk.

Judge Levin observed that the expert witnesses the court had heard so far seemed to agree on facts, but disagreed on what to make of them. “Is it possible,” Levin asked Flynn, “that there might be a difference of opinion… with regard to the interpretation attached to these findings?”

“Yes,” Flynn said, sounding like a witness for the prosecution.

In preparation for his testimony, Flynn had personally forged Streibel’s and Teufel’s signatures to demonstrate to the court how easy it was to re-create them. He also produced a very clever photomontage of himself in an SS uniform.

Shaked objected. Flynn’s forgery skills were not on trial; the Trawniki signatures were, he argued.

“Objection sustained,” Levin ruled. “The entire matter is irrelevant to this trial.”

Sheftel was disappointed and angry. He thought that Flynn was going to declare Demjanjuk’s signature a forgery and the Trawniki card a fake. Flynn did neither. And now his nemesis, Judge Levin, had tossed out Flynn’s important demonstration, blocking a major line of defense questioning. Sheftel would have none of it.

“Under these circumstances,” Sheftel told Levin, “we waive [Flynn’s] testimony and request that it be struck in its entirety from the record.”

Both the court and the prosecution were momentarily stunned by the totally unexpected response to Levin’s ruling.

“What’s your position,” Levin asked Shaked.

“We definitely have much to question [the witness] about in cross-examination,” Shaked said, “and we insist on our right to do so.”

Flynn had his own surprise waiting for the court. He refused to submit to a cross-examination, because, he told the court, Nishnic, who had hired him to testify for the defense, forbade him to do so. Nishnic had threatened to sue him if he submitted to a cross-examination.

At this point, Judge Levin was more than irritated. He didn’t relish being challenged by an American moneybag. Ruling that Nishnic’s threat was witness intimidation, he ordered the police to investigate Nishnic for possible criminal obstruction of justice. Then he ordered Flynn to answer Shaked’s cross-examination questions under penalty of contempt of court.

Shaked conducted a clever and devastating bait-and-trap cross-examination. Although Flynn never really called the Trawniki card a forgery as the defense had expected and paid him to do, he had cautiously implied it. To make his trap work, Shaked had to do what Sheftel couldn’t do—get Flynn to commit to a forgery conclusion.

“How can you come to the inference that it must have been forged?” Shaked innocently asked Flynn.

“My position is,” Flynn explained, “we cannot tell positively if Teufel and Streibel are genuine or not, and the Demjanjuk signature—in my opinion—is forged…. And since [the Trawniki card] was in the hands of the KGB, they would be a likely candidate.”

Flynn had finally used the F-word. Shaked was now ready to bait the trap. A few weeks before the trial, and after he had studied the original Trawniki card, Flynn talked about the Demjanjuk case at a forensic document seminar in Palm Springs, California. Shaked had obtained a transcript of Flynn’s comments and read aloud from it:

“I have examined the card firsthand for three days… microscopically, and there’s nothing about the card that I can see that would not have passed muster.”

“I don’t remember my exact words,” Flynn said. “I don’t think I said that.”

Shaked then sprung the trap. He played a tape recording of Flynn’s seminar remarks. The click of the machine at the end of the recording echoed through the courtroom with dramatic finality.

William Flynn’s own words had just made his entire direct testimony worthless.

The third defense witness was Yasser Iscan, the defense’s answer to Patricia Smith, who had made morphological comparisons based on photomontages of facial features such as nose, ears, and chin. A professor of forensic anthropology and a consultant to medical examiners in Florida, Iscan out-credentialed Patricia Smith, who did not have a degree in anthropology. His job as an expert defense witness was to either destroy Smith’s credibility or to cast serious doubts about her final conclusion: The photo on the Trawniki card was definitely that of John Demjanjuk.

Like Flynn, Iscan had a bias. He told the court that the photo super-imposition technique used by Smith was “essentially worthless,” and he set out to prove his point by replaying and reanalyzing Smith’s seven-minute video demonstration for the bench.

As the video played, Iscan pointed out what he considered to be imperfect photo matchings, or areas where two images did not appear to coincide. Iscan also pointed out to the court where Smith’s photomontages appeared to be too dark or too fuzzy to warrant a positive conclusion.

Iscan then explained to the court that he had done his own comparison of the Trawniki card photo and the proven photos of Demjanjuk in his own laboratory. Based on that examination, he concluded:

• Comparing proven photos with the Trawniki card photo was like comparing apples and oranges. Therefore, it is not possible to say whether the Trawniki card photo was that of John Demjanjuk or not.

• Smith’s conclusions were based on optical illusions created in a laboratory.

As a defense witness, Iscan had a major weakness—his credibility as an expert witness on the subject of photo identification. In his cross-examination, Shaked attacked that weakness without wasting a moment of court time.

First, Shaked got Iscan to admit that his principal work centered on identifying for medical examiners the age and sex of skeletons, not real people. Then Shaked got Iscan to admit that in determining the age and sex, he did not study the skull or what was left of the face. He only examined the thorax, pelvis, and femur of the skeleton. The face was the issue in the trial, not a leg bone. Finally, Shaked got Iscan to admit that photo identification was outside the area of his expertise.

In sum, although Iscan was indeed an expert, he was not an expert on the subject he had just testified about. His photo analysis and conclusions were, therefore, that of a nonexpert and useless.

The fourth expert defense witness was Anita Pritchard, a doctoral candidate in psychology at Columbia Pacific University in Marin County, California, across the Bay Bridge from San Francisco. She was the defense’s answer to photo analysts Reinhardt Altman, who cut Demjanjuk photos in half and reassembled them, and Patricia Smith, who superimposed one Demjanjuk image on top of another creating a montage. Like Robertson, Pritchard was a certified graphologist. Her specialty was physiognomy, the art of appraising character or personality from facial features. As a practitioner, she did photo comparisons of faces without using gimmicks like montages, video projectors, scanners, or multiple cameras. Pritchard’s only analytical instrument was her naked eye.

John Gill had found Pritchard in Houston in his last-minute rush to recruit expert witnesses. There had been little time to prepare her for her testimony until she arrived in Jerusalem a few days before she was scheduled to testify. When the two defense attorneys questioned her in her hotel room, they learned that she had served as an expert witness in only one trial, and that her academic and research credentials were worse than weak. At that late date, however, the defense had little choice but to put her on the stand and pray. She was all they had at the moment. She was their Hail Mary pass.