Richard Rashke - Useful Enemies

Before the eleventh-hour hearing, Sheftel laid a legal trap that fooled no one. He requested that the High Court release John Demjanjuk immediately based on new Marchenko information. Sheftel knew, of course, that the High Court was not about to free Demjanjuk based on alleged documents it had not reviewed. But the petition gave Sheftel a legal opening to explore at the hearing the contents of the file and to quote from the statements of former Treblinka guards like Piotr in the hope that the court would delay its appeal decision.

Besides statements that the operator of the Treblinka gas chamber was Iwan Marchenko, the file contained another important piece of evidence—a photo of Iwan Marchenko. During the discussion of the file contents at the hearing, Shaked had to admit that the photo, identified by former Treblinka guards as that of Marchenko, did not resemble Demjanjuk in any major way. Marchenko was eleven years older, much taller, with a scar on his face, and features that did not match Demjanjuk’s.

It was clear from the questions the judges asked that they were more than curious about the Fedorenko file. Doubt was finally beginning to gnaw at them, and they gave Sheftel a decisive victory. They would not rule on the appeal until after they had received and reviewed the entire Fedorenko file.

By June 1991, however, six months after the prosecution had reviewed the Fedorenko file in Moscow and three months after it had received the file from the Soviet Union, the prosecution was still refusing to release the documents to Sheftel and the Supreme Court.

It was time to play a trump card.

Sheftel told a sympathetic reporter that Demjanjuk was planning to stage a hunger strike if the prosecution did not release the Fedorenko file to the defense within three weeks. The reporter called Shaked for a comment. A few days later, Sheftel got a letter from the prosecution office. “The translation and typing have been completed,” Shaked wrote, “and I am making available to you copies of the Russian and Hebrew version of the statements from the Fedorenko file.”

As he tore open the brown envelope addressed to him, Sheftel knew that if the file contained the documents he believed it should, he had won his case. “I was trembling with emotion,” he later wrote. “In my wildest dreams, I had never imagined that there would be so much material and that it would offer such firm proof…. In all my years of legal practice, I had never been so happy and so satisfied as in those precious moments.”

The most important statement in the file was that of Nikolai Shelaiev, who operated the Treblinka gas chamber with Iwan Marchenko and who was executed in 1952. Shelaiev said: “Iwan Marchenko—I do not know his father’s [first] name—was born in 1911 in Dnepropetrovsk, not a party member, married. Among his children, there was one son who was, at that time, 1943, nine years old. He was conscripted into the Red Army at the beginning of the war for the motherland, and served in the army as a private.

“Description: tall, black hair, brown eyes, thin face, large, narrow nose; an inconspicuous diagonal scar on his cheek; solidly built, square shoulders, erect gait. I first met him in September 1942, and worked with him as operator of the motor that emitted exhaust gas and transferred it to the gas chambers where the people were killed.”

The Supreme Court accepted all the statements from the Fedorenko file as appeal evidence but it declined to immediately set Demjanjuk free as Sheftel had requested. The court said it needed time to study the contents of the file which contained eighty statements made by thirty-seven former Treblinka guards, all of whom were dead. Each of the statements named Iwan Marchenko as the operator of the gas chamber.

The hunt for the real Ivan the Terrible was over. It was now just a matter of waiting on the court.

The Supreme Court convened in late July 1993 to render its life-or-death decision. It had been more than seven years since John Demjanjuk stepped off a 747 at Ben Gurion Airport and was denied permission to kiss the ground of the Holy Land. And it had been sixteen years since the U.S. Department of Justice filed charges of immigration fraud against him.

Rumors that Demjanjuk would be acquitted had been flying for weeks and security was especially tight inside the courtroom, in the adjacent room with closed-circuit television, and on the street outside. Both rooms were packed with the media, survivors, and their families. Demjanjuk sat impassively in the wooden cell with his guards and interpreters. His son and son-in-law sat in the second row. His wife, Vera, was back home in Ohio.

The High Court had five choices:

• Uphold the conviction and the death sentence of the Levin court.

• Uphold the conviction but commute the death sentence to life in prison.

• Reverse the decision of the Levin court because Demjanjuk had not received a fair trial.

• Acquit Demjanjuk because of a reasonable doubt that he was Ivan the Terrible.

• Find Demjanjuk not guilty of serving at Treblinka, but guilty of serving at Sobibor.

The appeal ruling was over four hundred pages. Chief Justice Shamgar read a summary that took two hours. The five justices ganged up on Sheftel.

The Supreme Court upheld every major lower court ruling from the authenticity of the Trawniki card to the false alibi. It further found that the State of Israel had the jurisdiction to try Demjanjuk for genocide because genocide was a legitimate expansion of the crime of murder. The court also found as totally reliable: the photo identifications by Treblinka survivors; the identification procedures of Miriam Radiwker; and the survivors’ court testimony. And like the lower court, it dismissed as baseless assumptions Professor Wagenaar’s testimony that Miriam Radiwker’s photo spread and photo identification interviews were invalid. Finally, and the deepest cut of all, the High Court failed to find Judge Levin and his court guilty of bias. Based on these findings, Demjanjuk’s neck was already in the noose.

With the courthouse full of emotional survivors and their families and the nation of Israel curiously or anxiously waiting, the Supreme Court then committed an act of courage that echoed around the world.

“The main issue of the indictment sheet filed against the appellant was his identification as Ivan the Terrible,” Judge Shamgar reasoned. “A substantial number of survivors of the Treblinka inferno identified the appellant as Ivan the Terrible…. He was convicted in the district court….

“Before us, after the hearing of the appeal ended, there were submitted statements of various [former Treblinka guards], which spoke of someone else as Ivan the Terrible. We do not know how these statements came into the world and who gave birth to them…. When they came before us, doubt began to gnaw away at our judicial conscience. Perhaps the appellant was not Ivan the Terrible of Treblinka…. By virtue of this gnawing, we restrained ourselves from convicting the appellant of the horrors of Treblinka….

“Iwan Demjanjuk has been acquitted by us, because of doubt, of the terrible charges attributed to Ivan the Terrible…. Our verdict is unanimous.”

The courthouse erupted into screams and tears and death threats. Bystanders stoned the car carrying Sheftel, Nishnic, and Johnnie Demjanjuk away from the courthouse. “Nazi, Nazi, Nazi!” they shouted.

Like the Polish survivors who had testified against Frank Walus, the Treblinka survivors remained totally convinced that Iwan Demjanjuk was, and always would be, the real Ivan the Terrible. “Had I known that such a thing would happen,” Yosef Cherney said, voicing the feelings of all the Treblinka survivors, “I wouldn’t have taken it upon myself and stood up in court…. It’s very painful. You have no idea how painful…. I am in shock, great shock. The justices made a mistake. They have done an injustice to millions because he is the criminal [Iwan Grozny], the Nazi criminal. Not in my worst dreams did I think something like this could happen in a Jewish state…. The Nazis can now celebrate.”