Richard Rashke - Useful Enemies

Finally, Battisti found that the photograph on the Trawniki card “clearly reflects the facial features of the defendant.” He emphasized that Demjanjuk did not deny the picture was a photograph of him.

“Possibly it is me,” Demjanjuk had admitted.

“On the basis of all the evidence ,” Battisti ruled, “the Court concludes that the Government’s exhibits 5 and 6 are authentic and clearly show that the defendant was at the German SS training camp of Trawniki.”

Next, Battisti turned his attention to the six Treblinka witnesses—five Jewish survivors and Otto Horn, the German guard who supervised the burning of the corpses. Battisti pointed out that each witness worked near the gas chamber buildings and the building housing the motor that produced the lethal carbon monoxide gas. That placed them in a position to see Iwan on an almost daily basis.

Battisti noted that each witness had identified Demjanjuk as Iwan from at least one of several photo spreads. The defense sought to exclude that evidence on two grounds. First, it argued that the identification processes in Israel, West Germany, and elsewhere were conducted outside the presence of the defense counsel, violating the Fourteenth Amendment guarantee of due process. Battisti ruled that the mere absence of the defense at the showing did not deny the defendant due process.

“Our legal system has always placed primary reliance for the ascertainment of truth on the test of cross-examination,” the judge said. “Effective cross-examination can be utilized to reveal any deficiencies in photographic identification procedures.”

Battisti pointed out that the defense had, in fact, conducted rigorous cross-examination of all six witnesses. The opportunity to do that “adequately compensated for the absence of the defense counsel at the pretrial identification proceedings.”

Second, the defense argued for the exclusion of the pretrial identification testimony of four of the five witnesses from Israel—Rosenberg, Lewkowicz, Epstein, and Rajgrodzki—because they had identified Demjanjuk as Ivan the Terrible from the deeply flawed photo spread offered by Miriam Radiwker. The defense argued that pretrial identifications of these four witnesses were “conducive to mistaken identification.”

Unlike Judge Roettger in the Fedorenko case, Battisti gave little weight to the flaws in the Radiwker photo spread. He ruled that “thorough cross-examination of each witness failed to depreciate, in any way, the certainty of the identifications made by each witness.”

Battisti went on to say: “Each witness identified defendant as Iwan, known from Treblinka, on the basis of the defendant’s visa photograph. In addition, four of the five witnesses shown defendant’s picture on the Trawniki card identified him. The fifth, Rajchman, who failed to select the card photograph at a pretrial session did so in open court. There is no indication that the investigators conducting the identification procedures, in any way, suggested the identification of the defendant’s photographs.”

Battisti concluded: “An examination of the totality of circumstances in this case reveals the reliability of the identification of… the witnesses.”

Finally, Battisti turned his attention to the witnesses’ physical description of the Iwan they remembered at Treblinka. “It may be fairly said,” the judge observed, “that the following general description was offered by all the witnesses: young man, twenty-two to twenty-five years of age, tall, strong physique, dark or dark brown hair.”

After giving no weight to height or hair-color discrepancies, Battisti noted that the defense offered the deposition testimony of Feodor Fedorenko. Defense counsel Martin had interviewed Fedorenko a few days before the end of the trial, with Battisti’s permission. The convicted former Treblinka guard swore he did not recognize the man in either the Trawniki card photo or in the visa application photo. And he swore he did not know a Treblinka guard named Iwan who operated the gas chambers.

“The Court finds that the testimony of Fedorenko is not credible,” Battisti ruled. He then concluded: “Since the Court finds both the pretrial and trial photographic identification to be reliable, it must be concluded that defendant was present at Treblinka in 1942–1943…. Since the Court has found that defendant was present both at Trawniki and Treblinka, it is not necessary to determine whether defendant was ever present at the concentration camp Sobibor.”

Next, Battisti went on to review Demjanjuk’s testimony, which raised several serious doubts in his mind. Most important, he found that the authenticity of the Trawniki card “undercut” Demjanjuk’s credibility and most of his testimony. He noted that Earl Ziemke showed that it was unlikely that Demjanjuk was a POW at Chelm in the fall of 1944, as Demjanjuk claimed, because the Soviets occupied the camp by that time. Battisti pointed out that Demjanjuk’s admission that he had a blood-type tattoo “raised serious questions” about his whereabouts during the war and the veracity of his testimony. And he noted that Schefler had testified that only persons affiliated with the German SS were given such tattoos, and that it was unlikely that any ordinary Russian POWs would be so marked.

The core of the defense’s case was that Demjanjuk lied on his visa application because he was afraid of repatriation to the Soviet Union, where he would be executed as a deserter. Battisti found that fear specious and he gave it no weight or serious consideration. (As the Supreme Court had ruled in the Fedorenko appeal, the Displaced Persons Act of 1948 did not make a provision for extenuating circumstances.) Battisti further found that Demjanjuk’s membership in Vlasov’s liberation army was, like his service at Sobibor, irrelevant in and of itself, given that the government had proven without a doubt that Demjanjuk was at Trawniki and Treblinka.

Finally, Battisti reviewed the testimony of immigration officers Daniel Segat, Leo Curry, and Harold Henrikson. He concluded that “the government has shown by clear and convincing evidence that the defendant… willfully misrepresented [his service at Trawniki and Treblinka] on his visa application.”

Battisti concluded: “The Court finds that the November 14, 1958, order of the United States Court for the Northern District of Ohio, admitting the defendant, John Demjanjuk, to citizenship of the United States of America, is hereby revoked and vacated, and his Certificate of Naturalization, Number 7997497, is canceled on the grounds that such order and Certificate were illegally procured, and were procured by willful misrepresentation of material facts.”

The Demjanjuk family drew their drapes and went into seclusion while reporters and TV crews waited patiently outside their home on Meadow Lane for a statement that would never come. One reporter lost his cool and began banging on the door. The Demjanjuks called the police.

In a weak attempt to heal the distrust and bitterness between Jews and Ukrainians stirred up by Demjanjuk’s trial and Battisti’s ruling, the Jewish and Ukrainian communities issued a joint statement: “We categorically reject the concept of guilt by association employed so frequently against Jews and Ukrainians in an attempt to blame all the members of a group for the actions of individuals.”

John Demjanjuk appealed Judge Battisti’s decision to the United States Court of Appeals for the Sixth Circuit. While he was waiting for a decision, the government ordered him to appear for a deportation hearing (order to show cause) at a U.S. immigration court in Cleveland. His attorney, John Martin, advised him not to go. His case was still under appeal, Martin argued, and the government had no right to proceed with deportation until the appeals court ruled.