Richard Rashke - Useful Enemies

Your decision has left me in shock…. It hurts that I must say these strong words, but please understand and accept them as words of pain coming from a man who lost most of his family in the Nazi concentration camps. A man who has seen the terrible atrocities of the Holocaust and the destruction of his people in Europe.’

Walus was in pain as well. “It was a terrible nightmare,” he said after the appeals court decision. “I feel happy because… this darkness is over…. I will never get back my reputation.”

Walus never did. Jews still believed he was a convicted Nazi, and Chicago’s southwest side Poles, who had no love for the Gestapo, shunned him.

Judge Hoffman didn’t fare well, either. In 1982, the Executive Committee of the U.S. District Court rapped his knuckles. It ordered that he be given no new cases because of “his age and complaints that he was acting erratically and abusively from the bench.” He died in 1983 at the age of eighty-seven.

Indeed, the last thing OSI needed was another Walus case.

George Parker was aware of the pressure OSI was under from Congress, the Justice Department, and the Jewish community. He knew that the Walus and Fedorenko defeats—the Supreme Court had not yet ruled on Fedorenko—fueled suspicions in the émigré communities that Justice was fronting a Jewish conspiracy of revenge. Convinced that OSI was blindly walking into another wrong-man fiasco, Parker wasn’t sure what he should or could do to prevent OSI from making a legal and ethical blunder. He discussed his concerns with a colleague. She suggested that he write a memo to Rockler and Ryan, presenting a point-by-point analysis of the case against Demjanjuk and spelling out OSI’s options.

When we filed our case against John Demjanjuk in 1977, Parker began his memo, we had no evidence that Demjanjuk was a Trawniki man who had served as a guard at Sobibor.{George Parker’s memo is paraphrased here for readability and clarity. In no way does this rendering alter the meaning or emphasis of the original document.} All we had were references and unsubstantiated quotes in a communist newspaper.

New information in the communiqué from Moscow contradicts our current pleading that Demjanjuk is Ivan the Terrible—two certified photos of a Trawniki-issued ID card and Soviet-provided statements from Danilchenko and two former Treblinka guards. The Trawniki card and Danilchenko’s statement place Demjanjuk at Sobibor. The two Treblinka guards said he was not at Treblinka. This as yet unproven evidence warrants a reevaluation of our pleading.

In support of the Ivan the Terrible theory:

We have eyewitness evidence from the Israeli police positively identifying Demjanjuk as Ivan the Terrible. And when Israeli investigator Miriam Radiwker pointed to Demjanjuk’s photo and told two witnesses that she had evidence that the man in the photo was a guard at Sobibor, both witnesses insisted he was at Treblinka. In fact, all the Israeli witnesses appear to be unshakable in their identification of Demjanjuk as Iwan Grozny.

Against the Ivan the Terrible theory:

Both Poland and the Soviet Union conducted war crimes investigations of atrocities at Treblinka. Each compiled a list of guards who had served there. Iwan Demjanjuk’s name did not appear on either list. Furthermore, the picture of Demjanjuk in the photo spread that the INS sent to Israeli police was that of a man ten years older than the “Ivan the Terrible” whom the witnesses knew from Treblinka. That age difference could have led to misidentifications based on facial features. Furthermore, former Treblinka guards claim that Ivan of Treblinka “rarely if ever” left Treblinka. That casts doubts on any theory that Demjanjuk served in both camps at different times. Finally, all the eyewitnesses describe Ivan the Terrible as about five feet, ten inches tall. Demjanjuk was six feet, one inch.

The evidence that Demjanjuk served at Sobibor is also flawed. We haven’t found a single witness—a German or a Trawniki man—who can testify that he saw Trawniki cards similar to the one ascribed to Demjanjuk. Under that circumstance, the trial judge may well refuse to allow the card to be entered as evidence. And Danilchenko’s statement about serving with Demjanjuk at Sobibor has inconsistencies that might destroy or damage his credibility. Since we haven’t interviewed him, his statements have little value except to raise more doubts.

We are trapped. We have little admissible evidence that the defendant was at Sobibor, yet serious doubts as to whether he was at Treblinka. Even if we are comforted by the conviction that we have the right man but for the wrong act, ethical canons probably require us to alter our current position.

Given our dilemma, we have two basic options and two realistic choices.

Option A: Maintain the Status Quo

The trial will begin soon and it’s too late to change direction because we will appear weak and indecisive. Why should we change anyway? We all believe that the seven eyewitnesses who have seen the photo spread to date are sincere and will appear credible on the stand. And even though Demjanjuk was at Sobibor, it is still possible he was also at Treblinka.

On the other hand, we have good reason to believe that Demjanjuk was at Sobibor and never at Treblinka. The American Bar Association Code of Professional Responsibility cautions against a prosecutor trying a criminal case if he has serious doubts. Even though the John Demjanjuk denaturalization case is not a criminal case, the damage to the defendant, if found guilty of immigration fraud, requires us to adopt a strict interpretation of the code.

Based on my knowledge of the case, I strongly recommend against this first option.

Option B: Amend the Pleading

Strike Treblinka and Ivan the Terrible… Substitute Sobibor and Trawniki

We have statements from Danilchenko and two other former Sobibor guards placing Demjanjuk at the camp in March 1943. As a Sobibor guard, Danilchenko tells us, Demjanjuk assisted directly in the prosecution of civilians. The information from the three guards dovetails with the Trawniki card. Furthermore, Demjanjuk said in his visa application form that he was a farmer in the village of Sobibor from 1937 to 1943.

On the other hand, since the three statements supplied by the Soviet Union are inadmissible as evidence in their present form, our entire case will rest on the weight the judge places on the Trawniki card. Without other supporting documentation, we cannot expect more from him than finding Demjanjuk culpable of being an involuntary trainee at Trawniki.

I consider this option tactical suicide and a legal blunder. That leaves us with only two ethical choices.

Choice One: Dismiss the Case

If we do not believe Demjanjuk was at Treblinka and cannot prove at this time that he was a guard at Sobibor, we should drop the case—at least until the Soviets make Danilchenko available for a deposition. If we adopt this choice, however, there will be political fallout, and the judge may not be willing to allow us to refile at a later date when we are fully prepared.

Choice Two: Expand the Pleading

Remove the Ivan the Terrible charge… Keep the Treblinka guard charge…

Add Sobibor and Trawniki

This option focuses on what we believe to be true—that Demjanjuk was an extermination camp guard. It eliminates what we doubt to be true—that he was Ivan the Terrible. This option will not destroy the denaturalization case against Demjanjuk because he was an armed guard at a death camp and lied about it to the vice consul.