Richard Rashke - Useful Enemies

Martin’s closing was more complex, his job more subtle. Since he didn’t have the burden of proof, his task was to cloud the government’s case with so much doubt that Judge Battisti would have to rule in Demjanjuk’s favor.

“It is our contention that the sole issue in this case, after hearing all the testimony, has to be whether or not this gentleman seated here—Mr. Demjanjuk—was indeed the Iwan who served at Treblinka,” Martin began. “For sure, there has been no… credible testimony or evidence in reference to Mr. Demjanjuk… serving at Sobibor. ”

Martin went on to argue that whether Demjanjuk was in a Ukrainian unit of Vlasov’s liberation army had no bearing in this lawsuit because it was not a charge in the government’s original pleading. Then he mounted his attack on the Trawniki card, beginning with Schefler, who testified that he had never seen a Trawniki ID card identical to the one attributed to Demjanjuk.

“Are we to assume then, that the government’s Exhibit 6 was the only type of card ever prepared like that?” Martin asked. “Is that what the government wants us to believe?”

The card should not have been admitted in the first place, Martin argued, because it was not a public document like a birth certificate. Once it was admitted over the strong objection of the defense, however, Gideon Epstein failed to test the ink, paper, and typewriter type on the original.

“He gave us no reason why,” Martin reminded the court. “This spurious document [is] untrustworthy on its face.”

Battisti stopped Martin cold.

“I have no recollection of any testimony that in any way indicates that these documents were spurious,” Battisti scolded. “[You can’t] simply come in and say, ‘this is a spurious document’ and sit down, or ‘that is a false document’ and sit down. Do you think the court can adopt a finding with that sort of evidence?”

Duly chastised, Martin continued to attack the card. Epstein was nothing more than a hired gun, he argued, and everyone knows you can find an expert to give an opinion on just about anything.

“The government did not have to use opinion testimony in regards to Exhibits 5 and 6, Your Honor,” Martin argued. “Karl Streibel was alive and supposedly, according to [the government], ready to be a witness in this lawsuit in May of 1980, less than a year ago. Indeed, the government arranged to transport defense counsel and themselves to Hamburg to this man’s deposition.”

Moscowitz objected. “Counsel is testifying to matters that are completely outside the record at this point.”

Battisti overruled him.

Martin went on to explain that the former Trawniki commandant had agreed to be deposed. But on the very morning of the deposition, the interview was canceled. Martin told Battisti that he called Streibel and asked him why he declined to testify at the last minute. Streibel said he didn’t cancel the interview. Someone called him and told him not to come to the U.S. embassy for the videotaping. No explanation was given. Streibel said he had not seen the card, but he knew it was a forgery. He would never have signed a document that did not have a date on it.

More than likely, the government probably decided not to depose Streibel because they found his answers to predeposition questions self-serving like Fedorenko’s and his memory unreliable. Be that as it may, there was no legal reason why Martin could not have deposed Streibel himself, as he had Fedorenko.

Martin went on to score a series of smaller points, like so many jabs. None of them was a knockout punch:

• Prosecution witness Heinrich Schaefer could not establish that all Trawniki men received a tattoo.

• Fedorenko had said in a sworn deposition that he was never issued a Trawniki card or any similar document.

• Fedorenko also swore he never got a tattoo.

• The Soviets knew about the scar on Demjanjuk’s back because he was confined to several Soviet hospitals for four months. There were medical records.

• Otto Horn never saw Iwan commit atrocities even though he worked right next to him at Treblinka.

• After the war, the U.S Army hired Demjanjuk as a truck driver. Surely it would have done a security check. And if they found out that he had collaborated with the Nazis, they would not have hired him.

• There was witness coaching, prompting, improper showing of the photo spreads, and exchange of information among the prosecution survivor-eyewitnesses. There were major discrepancies in the witnesses’ descriptions of Iwan, proving that Demjanjuk could not have been Ivan the Terrible.

“No one has come into this courtroom, took that witness stand, looked this man in his eyes and said, ‘You are the one,’” Martin said.

“Why didn’t you ask?” Battisti said.

“Your Honor, this gentleman does not have to prove he is innocent here. The burden of proof is on the government.”

“Do you believe there was an Iwan at Treblinka?” Battisti asked.

“I do, Your Honor. I certainly do. And I believe that people have suffered as a consequence of this Iwan.”

Battisti then asked Martin to read Pinchas Epstein’s description of Ivan the Terrible from the trial transcripts.

Martin recited: “Twenty-two to twenty-five, tall, broad shouldered, short neck, a round face, ears protruded slightly, high forehead, with an athletic build.”

“Do you think this is a fair description of the defendant, a fairly good description?” Battisti asked.

“I didn’t know the defendant in 1942, but based upon what he testified as to how he looked, I would say no,” Martin said, “because he testified that in 1942 he was half-starved, and he looked gaunt, more or less, or skinny…. Sure it’s a good description of him now. It might very well resemble him. He might look like that, but are we going to speculate and base this decision on the fact that Mr. Demjanjuk might look similar to someone?”

Martin then went on to accuse the government of hiding the details of its investigation from the defense.

“We were never told in this courtroom how the lawsuit got started, who the investigators were, whether they conducted themselves properly and afforded the usual safeguards to the defendant….Wouldn’t the court be at least in a better position to judge the fairness of these photo spreads if, in fact, you had the persons who conducted the photo spreads to come here into this courtroom before you, take the stand, and testify to you so that you would know that there was nothing suggestive about the photo display?… You cannot revoke this man’s citizenship—the most priceless possession in the world—on the basis of closed-door investigations on the other side of the world.”

“You’re not suggesting the Soviets are conducting this trial, are you?” Battisti asked.

“No,” Martin said. Then he started to enumerate Judge Roettger’s problems with Miriam Radiwker’s photo spread at the Fedorenko trial.

“Objection.” Moscowitz argued that what Roettger thought about the photo spread was not relevant in this trial.

Battisti agreed, then tried to clear up a point in the defense testimony. Demjanjuk said that the Germans sent him to the town of Oelberg, Austria, toward the end of the war in 1945.

“Does such a place exist?” Battisti asked.

“I believe Dr. Schefler testified that he wasn’t able to find it, or had not heard of it,” Moscowitz said.

“Well, you tell me,” Battisti said to Martin. “The defendant… said he was a prisoner of war there for four to six months, and he was assigned to a unit to guard a general. Now, the professor says he never heard of the place, doesn’t know about it, doesn’t know of it. I’m asking you whether such a place exists and, if so, where is it?”