Richard Rashke - Useful Enemies

The court had fallen in love with Miriam Radiwker.

“We hold that Mrs. Radiwker’s testimony is totally credible ,” the court ruled. “We were deeply impressed by her honesty and sincerity, and by her incredible memory…. We accept her explanation. We absolutely reject the suspicion, implicit in the defense’s censure, that Mrs. Radiwker is testifying in order to advance the conviction of the accused.”

The court dismissed Willem Wagenaar and his two days of testimony in one sentence: “We shall not rely on Professor Wagenaar’s opinions, as expressed before us.”

Although the court recognized some, but not all, of the facts Wagenaar cited during his testimony, it rejected each and every conclusion Wagenaar had drawn from those facts. It also discarded the list of response biases he had offered the court to guide the judges in their deliberations about the reliability of the identifications made by Treblinka survivors. The court seemed to be scolding Professor Wagenaar: How dare you come to Israel from the Netherlands and criticize the Israeli police and its procedures as defective and unprofessional!

The court was especially hostile toward Wagenaar’s criticism of Radiwker’s qualifications for her job as a police investigator. “We absolutely reject,” the court ruled, “that she is unqualified in investigation procedures or that she made leading suggestions to witnesses interrogated. As a rule, Mrs. Radiwker acted precisely according to the directives of the United States immigration authorities.”

The court also rejected Wagenaar’s testimony that Radiwker’s introduction to the showing of the photo spread—“Look at the photographs in the album, and see if you recognize anyone”—was not acceptable because it was misleading and suggestive.

In effect, the court voided Wagenaar’s two damning conclusions: The photo spread was not a valid test of memory; and the photo identification procedures were so inconsistent, flawed, and unprofessional that they invalidated the Treblinka witnesses’ identification of John Demjanjuk as Ivan the Terrible.

“We do not believe that the time has arrived for experimental psychology to enter fully into the confines of the court,” the court ruled. “As in regard to Professor Wagenaar’s testimony on the subject of identification parades, we do not find it possible to rely on his evidence.”

Recognizing that the identification of John Demjanjuk as Ivan the Terrible by Treblinka survivors was the “heart of the case,” the court had posed three questions before the trial began. It answered each during the course of its written opinion:

Q. Was it possible to remember and faithfully describe events which occurred forty-five or more years ago?

A. It was indeed possible to remember and describe what had happened.

Q. Could people who had survived the valley of slaughter and experienced its horrors forget what they had seen every day?

A. It was impossible to forget the scenes of horror, the atmosphere of terror, and all that occurred in the extermination camp.

Q. Was it possible that someone who had experienced the horrible reality described in the indictment could remember the events in detail while forgetting the image and facial features of the perpetrator to such an extent that they would not be able to identify them?

A. It was impossible to forget Ivan the Terrible and his facial features.

With these clearly articulated biases as guides, the court evaluated the reliability of each Treblinka witness individually and assigned his or her testimony a weight. Then it studied the cumulative identification evidence in toto and ruled:

• No witness was completely unreliable.

• Four witnesses gave “firm and impressive testimonies”—Eliyahu Rosenberg, Yosef Cherney, Gustav Boreks, and Pinchas Epstein. Each could be relied on with “almost absolute certainty.”

• Other witnesses corroborated and supported their positive identifications.

“The accumulative weight of these identifications,” the court ruled, “creates a totality which may be safely relied upon as the basis for an incriminating finding…. After all the evidence, we have reached the clear conclusion that the possibility of the identifiers having substituted the defendant for Iwan Grozny, because of an amazing similarity between them, is far-fetched and beyond the limits of a reasonable doubt.”

At this point in the reading, the Demjanjuk family knew what the court’s verdict would be. To avoid the pain of hearing the judge pronounce their husband and father guilty of crimes against humanity and the Jewish people, they fled the courtroom and did not return.

The defense had argued that the Trawniki card was a forgery because it was a unique, one-of-a-kind document. Given the three new samples of Trawniki ID cards supplied by the Soviet Union during the trial, the court ruled that the Demjanjuk Trawniki card was “not a unique solitary document,” and that certificates of that type were routinely processed at Trawniki.

The defense had argued that the Trawniki card was supplied by the Soviet Union and should not be admitted as evidence. The defense further argued that the KGB had both the skill and opportunity to forge the Trawniki card and, therefore, the court should presume that it had.

The court rejected the “presumption of forgery” argument as unfounded and wishful thinking. It further ruled that Trawniki card errors, such as spelling mistakes and the Demjanjuk height discrepancy, could be convincingly attributed to the Trawniki clerk who recorded the data.

“There is nothing in these errors,” the court ruled, “and it is possible to hold that the identifying details recorded in the certificate are those of the defendant.”

The court ruled that the Trawniki card photo was indeed a photo of John Demjanjuk. It based its conclusion not on the testimony of expert witnesses, but on two other factors—Demjanjuk’s testimony in which he admitted, “It looks like me but I am not one hundred percent certain,” and the court’s own naked-eye comparison of the card photo with the face of John Demjanjuk sitting in the dock before it. Based on that visual inspection, the court concluded that, because the photo looked like John Demjanjuk to the court, it was John Demjanjuk.

“A positive determination by an expert as to the identity of the photograph is not required,” the court ruled. In one sentence, the court dismissed as irrelevant the photo comparison testimony of Reinhardt Altman, Patricia Smith, Anita Pritchard, and Yasser Iscan. Their combined testimony had spanned eight days.

The court’s personal and positive identification of the Trawniki card photo as that of John Demjanjuk left open the question of whether the card photograph was part of an overall card forgery. The defense had argued that a true photograph of Iwan Demjanjuk had been fraudulently attached to the card. The KGB had taken an old army photo of Iwan Demjanjuk, superimposed a black Trawniki uniform over it, removed the original photo from the card, and attached the doctored picture.

In reaching its conclusion about the authenticity of the card photo, the court relied exclusively on the testimony of Amnon Bezaleli, the Israeli police laboratory director. It found his testimony so totally convincing that it did not need a confirming opinion and ruled that the “photograph is authentic.”

The court also ruled that the Trawniki card ink, paper, typeface, and seals were authentic, as were the signatures of Karl Streibel, Ernst Teufel, and Iwan Demjanjuk. The court based its findings on its conviction that the testimony of the prosecution witnesses was more expert and convincing than the testimony of the defense witnesses.