Richard Rashke - Useful Enemies

“In other words, you are saying now that whoever had been to [the death camp of] Sobibor must be out of his mind to put down Sobibor. That’s what you are saying, isn’t it?”

“Yes.”

Demjanjuk also swore on his visa application to the United States that he had worked as a laborer at Pilau, a fishing village near Danzig, after the war. Pilau was also the site of a camp guarded by Trawniki men and where Jews were executed. The coincidences were stacking up. Demjanjuk was a farmer in Sobibor before and during part of the war; briefly worked at Pilau, the site of a Nazi camp; was imprisoned in Chelm, close to Trawniki; and dug peat outside a Trawniki subcamp. To the court, it looked as if Demjanjuk had crafted an alibi around places he would have known had he trained at Trawniki and served at Sobibor.

Judge Levin pressed Demjanjuk even harder than Shaked had. “Would you have gone to work for them as a driver or mechanic?” he asked.

“Had I been a driver,” Demjanjuk said, “possibly yes. No one asked me to do it.”

“But if you had been asked,” Levin pressed harder, “you definitely would have gone to work for them?”

“I think so,” Demjanjuk said. “I felt that if I was selected, I might be able to run away. The second reason—you couldn’t turn them down because you would have been shot.”

Shaked had the next to final word.

“As the question looks now, after all the testimony has been heard, there is no way to avoid concluding you are in fact Ivan the Terrible from Treblinka.”

The spectators murmured their approval.

“That is not a question,” Shaked added, “and I don’t expect a response from you.”

Demjanjuk had the final word.

“That’s a lie,” he said.

The defense called Willem Wagenaar to the stand. Next to Julius Grant, he would be its most important witness.

Willem Wagenaar was a professor of experimental psychology (EP) and dean of the Faculty of Social Science at the University of Leyden in the Netherlands. A prolific writer, he had authored an impressive string of articles and books on the workings of memory in general, and the problems inherent in eyewitness photo identification and court testimony in particular. As a memory expert he asked: Under which conditions was the memory reliable?

Wagenaar was the first experimental psychologist to testify in an Israeli trial. EP was a relatively new science, and neither the judges, nor the media, nor the sparse crowd of one hundred spectators who gathered in the courtroom to hear his testimony seemed to know why he was there. The Israelis had long since become bored with the trial and Israeli newspapers no longer gave it front-page coverage. Israeli youth in particular seemed to have lost interest after the emotional and riveting testimony of the Treblinka survivors.

Actually, Wagenaar was not the defense’s first choice. Elizabeth Loftus was. The dean of American experimental psychologists, she was a strong and vocal critic of the indiscriminate use of eyewitness testimony in court trials and the reliability of eyewitness accounts, which cannot be verified. But Loftus was also Jewish, and some members of her family objected to her testifying on Demjanjuk’s behalf. She listened to her relatives, said no, and recommended Wagenaar. The most she could offer was to come to Jerusalem to help prepare Wagenaar’s testimony.

Wagenaar, who testified in English, made it perfectly clear to the court what he would and would not do as an expert witness. To the disappointment of the gallery, he said he would not evaluate the memory of each Treblinka witness who had testified and pronounce it “reliable” or “not reliable.” He would provide the court with a set of research-tested guidelines it could use in evaluating the reliability of those witnesses.

“The expert can only assist the court,” Wagenaar said, “by explaining which conditions favor the correct identification of guilty suspects, and which favor the mistaken identification of innocent suspects.”

Wagenaar went on to further clarify his role: “My task is limited to commenting on the quality of the tests…. Whether the tests prove that the memories are reliable is something for the court to decide.”

Wagenaar explained that he would evaluate both the memory test (Radiwker’s photo spread) and how it had been administered to the Treblinka survivors. In so doing, he picked up where Sheftel had left off in his cross-examination of Radiwker after Judge Levin ruled that his line of questioning was irrelevant because Radiwker had not chosen the photos for the spread.

Before he began the substance of his testimony, Wagenaar stole some of the thunder from the prosecution. The Treblinka survivors presented a unique situation to experimental psychologists, Wagenaar confessed. The survivors had known Ivan the Terrible nearly forty years ago, and they had seen him daily for as long as a year or more. Most studies of witness memory dealt with robbery or rape victims who had seen the perpetrator briefly and recently. As a result, he and the court would be sailing together through uncharted waters without a body of research to guide them.

The prosecution tried to block Wagenaar’s entire testimony, which went to the very heart of the Demjanjuk trial because it challenged the memories of the Treblinka survivors by asking: Did they point to the wrong man? In response, Michael Shaked argued that the evaluation of the photo spread was the task of the court, not the domain of an expert witness.

Judge Levin rejected Shaked’s argument but expressed a concern of his own. Would Professor Wagenaar merely lecture the court on theory? The question signaled to Shaked the strategy he should use to win over the bench against this witness—label Wagenaar’s testimony as theoretical and, therefore, irrelevant.

Like a good debater, Wagenaar defined his terms so there would be no confusion about his testimony. “The objective of the identification test [photo spread] is to prove that the witness’s memory is so accurate that confusion with another person is very unlikely.”

The identification of a face from memory is a tricky feat, Wagenaar told the court. One hundred percent accuracy, especially after a long time, is rare, and consequently there are no absolutes, only likely and unlikely. The critical question, therefore, was this: Were the memories of the Treblinka survivors accurate enough that confusing Iwan Demjanjuk with Ivan the Terrible was very unlikely?

Having set the stage for the critical part of his testimony, Wagenaar began an in-depth and critical evaluation of Miriam Radiwker’s photo spread, how the Treblinka survivors responded to Demjanjuk’s photo number sixteen, and how they described the Iwan they knew. His testimony was devastating, and there was nothing Mickey Shaked could do to stop him.

Wagenaar began with a contradiction that troubled him deeply but didn’t seem to bother the court. “It is clear,” he testified, referring to the 1975 photo spread, “that not all the witnesses, at all instances, were perfectly certain. Nor were they at all times perfectly accurate.” Yet each witness had identified the Demjanjuk photo and the man himself in the courtroom more than ten years later with absolute certainty.

Wagenaar then pointed out another issue that did not seem to trouble the court, but should have. A significant number of Treblinka survivors interviewed by Radiwker and her successor, Martin Kolar, could not identify Demjanjuk as Ivan the Terrible from the photo spread. This was so underreported by the Israeli police and so totally dismissed by the prosecution as irrelevant, Wagenaar pointed out, that no one had even bothered to tally how many survivors were not able to identify Demjanjuk.