Richard Rashke - Useful Enemies

How could the Levin court reach an unbiased judgment, Sheftel argued, when it deliberately exposed itself to inflammatory writings? As a consequence, the lower court trial was “a travesty.”

Sheftel concluded his ten-day appeal with a condemnation of the Demjanjuk trial: “A trial in which all these things—or even ten percent of them—happened, was not due process but a perversion of justice.”

The end of the appeal hearing left the defense with two troubling questions. How long would it take the Supreme Court to rule on the appeal? And would Sheftel have enough time to prove that John Demjanjuk was not Ivan the Terrible before it did?

In early September 1990, almost two years after the Jerusalem trial ended and some four months after Sheftel’s argument before the Supreme Court, Johnnie Demjanjuk and his American lawyer left for Ukraine. Sheftel followed three days later. They all met in Simferopol, Crimea. Johnnie had no trouble getting a copy of the marriage certificate of his grandparents. On it, his grandmother’s maiden name was listed as Juliana Tabachuk, not Marchenko as Shaked had argued. John Demjanjuk had written Marchenko, a common Ukrainian name, on his IPO application because he couldn’t remember the name Tabachuk. So much for the prosecution theory that John Demjanjuk was both Iwan Demjanjuk and Iwan Marchenko because he gave Marchenko as his mother’s maiden name!

While in Simferopol, where the Feodor Fedorenko case file was supposedly kept, the Demjanjuk team went to see Oleg Tatunik, the judge who had tried Fedorenko four years earlier. In his mid-forties and young by Western standards for a seat on the bench in a criminal court, Judge Tatunik was surprisingly open and friendly for a Soviet official. His meeting with the three men was private.

Judge Tatunik readily confirmed what the Polish commissioner had told Sheftel. In preparation for the Fedorenko trial, he explained, the court had collected all the statements that former Treblinka guards had given to the KGB prior to their war crimes trials. “In many of the statements attached to the file,” the judge said, “there is mention of the two criminals who operated the gas chambers. If I am not mistaken, the statements gave their names as Iwan Marchenko and Nikolai Shelaiev.”

The good news, however, came with bad. Although the Fedorenko file was archived in the KGB headquarters down the street, it could not be released without permission from the KGB main office in Kiev, the Ukrainian capital. That could take weeks, if not months, and there was nothing Judge Tatunik could do to help them.

The defense team was elated. So close! And disappointed. So far! The best it could do under the circumstances was to find a well-placed Ukrainian to pry the file loose from the tight fist of the KGB. They recruited Aleksandr Yemets, chairman of the Human Rights Commission of the Ukrainian Supreme Soviet and a leader in the independent Ukraine movement. Then the team returned home to beg and bargain. How much muscle did Yemets have? If he got the file, would it be in time to save the neck of John Demjanjuk?

Back in Jerusalem, Sheftel managed to wring two concessions from the Supreme Court. First, it agreed not to announce its final ruling before January 1, 1991. Then it scheduled an eleventh-hour hearing on the new Marchenko developments for December 31, the day before its announcement deadline. That gave Sheftel six short weeks to make his final pitch to the court, with or without the Fedorenko file.

While he waited for word from Yemets, Sheftel knew that John Demjanjuk’s life would only be spared in one of two ways. Either Sheftel had to prove that Marchenko was Ivan Grozny, or Demjanjuk would have to admit to the charge that he had served as a guard at the Sobibor death camp. Guard service under the Israeli 1950 Nazi and Nazi Collaborator Prosecution Act was not a capital crime allowing for a death sentence. If Demjanjuk would admit to Sobibor, Shaked had agreed to concede that Demjanjuk was not Ivan the Terrible. But John Demjanjuk refused to admit to a crime that he swore he never committed, even if it would save his life. That made the Fedorenko file his only lifesaver.

The willingness of the government to drop the Ivan the Terrible charge if Demjanjuk admitted to Sobibor was, in Sheftel’s mind, a face-saving and hypocritical stance. Israel had not requested the extradition of Ukrainian policeman and Nazi collaborator Bohdan Koziy, whose U.S. citizenship had been revoked for lying on his visa application and who was now living freely in Costa Rica. Nor had it sought to extradite Feodor Fedorenko, who had admitted being a guard at Treblinka. So why would it want to try John Demjanjuk for serving at Sobibor based on a single piece of so-called evidence—the Trawniki card? Demjanjuk was only of interest to Israel as Ivan the Terrible.

On December 11, three weeks before the Supreme Court was due to announce its appeal ruling, Yemets faxed a report from Kiev. The KGB office there had allowed him to review the Fedorenko case file. He found no mention of Iwan Demjanjuk in the documents. Iwan Marchenko was everywhere. By way of example, Yemets quoted the statement of former Treblinka guard Piotr given on March 6, 1951, before his execution for war crimes:

“He [Iwan Marchenko] was Ukrainian. I don’t know where he was born. He served in the Red Army and was taken prisoner by the Germans and then went to the Trawniki training camp. From there he was sent to Treblinka where he served as operator of the diesel engine that sent the gas into the gas chambers, and also took part in tormenting and shooting Jews. He was tall, solidly built, broad-shouldered, with a dark complexion, round face, and long nose.”

Yemets promised to return to the KGB office as soon as he could to copy the entire file and mail it to the defense. Sheftel was not about to take any chances that the package might “disappear.” Demjanjuk haters were everywhere. If they were willing to blind Sheftel with acid, they certainly wouldn’t hesitate to steal a file.

For protection, Sheftel leaked the gist of the Fedorenko file to the media. Although the planted news item went mostly unnoticed, there was now a record of the file’s existence. Then, Sheftel instructed Yemets to mail the documents to a safe house in Holland where Sheftel would be waiting.

The Fedorenko file never arrived.

Before Yemets could copy the documents, the KGB sent the file to Moscow, where an official Israeli delegation was reviewing it. The Israeli delegation was, of course, Shaked and his staff. That meant that the prosecution would get the file and have total control over it, not Sheftel, who had discovered it and disclosed its existence, contents, and whereabouts to the Supreme Court and, thus, to the prosecution.

The question now was: How long would the prosecution sit on the Fedorenko documents before releasing them to the defense? And would they be released in time to save John Demjanjuk?

In spite of the uncertainty, two things were clear. The prosecution would delay releasing the file as along as it could while it scrambled to build a case against Iwan Demjanjuk as a guard at Sobibor. And it was going to be a nasty race to the wire.

The Supreme Court convened on December 31, 1990, to hear an update on the unfolding Ivan the Terrible drama. The High Court could announce its appeal decision as early as the following day. If it did, John Demjanjuk would most likely be executed. Deep down, even Sheftel did not believe the court would grant the appeal and free Demjanjuk based on the appeal arguments alone. Only the Marchenko evidence could save him.