Richard Rashke - Useful Enemies

Although the tiny courtroom was filled for the opening session, it would remain nearly empty for the rest of the appeal hearing. It was as if the once-riveting trial of Ivan the Terrible had never happened. As if John Demjanjuk no longer existed. As if Israel was poised to pause from its daily business only on the day when the gallows trapdoor swung open.

The stakes were high for Satan’s attorney, as Sheftel’s enemies called him. If he lost the appeal and Demjanjuk were hanged, what was left of his reputation would be shattered, his legal career would be finished, and his life would be in even greater jeopardy.

The five justices entered the courtroom at precisely 9 A.M. and took their seats on hard wooden chairs behind an unimpressive dark wood bench. “Are you John Demjanjuk?” Chief Justice Meir Shamgar asked?

“Yes,” Demjanjuk said in a loud, clear voice.

“Mr. Sheftel, you may begin.”

Sheftel’s appeal would take ten days. Five of his arguments were familiar ones from the trial: the Trawniki card (forged); Danilchenko’s sworn statement that Demjanjuk was at Sobibor (mistaken identity); the Trawniki photo (doctored); and Demjanjuk’s alibi (sound).

Sheftel’s plan was to restate, redocument, and refocus the same arguments the defense had mounted in the Levin court, but without interruptions from the bench and objections from the prosecution. His goal was to do what the defense had failed to do earlier—establish reasonable doubt.

Two other arguments were fresh and formed the heart of the appeal case: Israel’s lack of jurisdiction to try Demjanjuk for genocide, and Judge Levin’s deep-seated bias against the defense.

Sheftel argued that Israel legally could not try Demjanjuk for genocide under the terms of its extradition request and treaty with the United States. The only jurisdiction Israel had was to try Demjanjuk for the murder of civilians. The hairsplitting was critical. Genocide carried the possibility of a death penalty under Israeli law, while the maximum sentence for “regular” murder was life in prison.

Unlike the textbook jurisdiction issue, the bias charge was subjective and transparently personal. Sheftel’s beef with Judge Dov Levin went back fourteen years, to 1976, the first time the young lawyer appeared in Levin’s district court, and it continued unabated until the last Demjanjuk defense argument.

The friction between the two men had erupted during a criminal conspiracy trial in 1979. Sheftel’s clients were on trial for allegedly bombing a building, though fortunately no one was injured in the blast. In the middle of the trial, Judge Levin decided to take a fourteen-week vacation. That meant that Sheftel’s clients, charged but still innocent, would have to sit in jail for more than three months, waiting for Levin to reconvene the court. Sheftel objected to the extended leave, arguing that if Levin insisted on absenting himself for fourteen weeks, his clients should be freed. Levin disagreed.

While Levin was traveling abroad, Sheftel filed an appeal to the Supreme Court and won half a victory. The High Court chided Levin, its favored candidate for an upcoming seat on the bench, for abandoning a trial in progress. Given the violent nature of the alleged crime, however, the court declined to order the release of the accused.

Sheftel sensed that his career as a lawyer in Israel was dead. Dov Levin would never forgive him for the public embarrassment and for jeopardizing his appointment to the Supreme Court. The Demjanjuk case was proof that Levin was out to get even. Sheftel felt that, throughout the trial, Levin had “never stopped snarling… harassing… insulting… and humiliating him.” And now as he stood before the bench, armed with trial transcripts, Sheftel was ready to prove it. His attack took seven hours. None of the justices interrupted him as he quoted and argued from the more than eight thousand pages of the trial record. Among the perceived insults and humiliations were bench statements made by Levin, such as “The public is also beginning to be bored by the argument… Completely unethical defense attorneys… This is an unfit and unseemly defense team… The consequence of defense scheming… The defense is throwing sand in our eyes… Whining defense attorneys… You’re giving us a headache.”

Sheftel went on to argue that Levin had misused private meetings in chambers without a court recorder present to make rulings, in effect turning a public trial into a private one with no written record to prove his abuse of judicial authority.

Sheftel accused Levin of applying a double standard. For example, he had allowed the prosecution to probe the political leanings of witnesses while blocking the defense from doing the same. And he had demanded a schedule of witnesses and a rigid timetable from the defense, but not from the prosecution.

Sheftel further argued that Levin was competing with the Klaus Barbie trial in progress in Lyon, France, to see which court would reach a verdict first, thus limiting and crippling the defense. The refusal to postpone the trial after Demjanjuk fired his lead counsel, Mark O’Connor, was one example. The introduction of the Danilchenko Protocol during closing arguments was another. Both the prosecution and the defense requested time to go to the Soviet Union to study and verify the statement of Danilchenko, who had died the year before the trial opened, that Demjanjuk was a guard at Sobibor. Judge Levin refused to delay the court’s verdict. Even so, Klaus Barbie won the race.

To some extent, one could attribute Sheftel’s attack on the credibility of Judge Levin and his court to a case of sour grapes. Losing attorneys love to blame judges for their defeats. But Sheftel presented one highly documented bias argument that did not smack of distortion or self-serving interpretation.

Before the trial opened in Jerusalem, the Levin court hired a clipping service to prepare a daily album of what the media had reported about the trial. The court asked the service to present three copies to the court clerk each morning. Then the court instructed the clerk to deliver the albums to the judges before the court convened. Sheftel learned about the clippings by accident, and he personally saw the judges reading them in their chambers before the morning sessions.

Like a jury, sitting judges were required by law to isolate themselves from media reports that might influence or sway them. Sheftel felt that the court’s breach of that ruling invalidated the entire Demjanjuk trial. He confronted Judge Levin, who admitted that he and the other judges had received the daily clippings and read them.

Sheftel felt that if the public learned about the clipping service, it would be outraged and demand a mistrial. With that in mind, he asked the court’s permission to call the manager of the service to the stand. Judge Levin refused. He had already admitted to the facts, he pointed out. Therefore, court testimony about them and the public’s so-called need to know were irrelevant. Sheftel was free, of course, to argue his point during an appeal, Levin said, but the clipping service issue would not be raised in his courtroom.

Twenty-four of the newspaper articles in the clipping albums, written by a Holocaust survivor for a popular Israeli daily newspaper, were clearly inflammatory and an apparent criminal infraction of Israel’s sub judice (under a judge) rule, which forbade the publication of anything liable to affect the outcome of a trial. A court would eventually find the author of the articles, the newspaper, and its editor guilty of a violation of the sub judice law.

“At its own instigation,” Sheftel told the High Court justices, “the [Levin] court was exposed to wild accusations and aspersions against the defense, the defense counsel, and the Ukrainian people.”