Yitzhak Arad   Letter 01   05-Mar-1999   No control in the courtroom
The noise in the Court is so intense, I can't even hear on the headset, Your Honor.  And it is continuing even as I speak to you, with no control in the courtroom.

A court that allows hissing and booing.  Subsequent to my writing of the letter below to Yitzhak Arad, I noted the following additional reference to audience disruption of the defense during the course of Arad's testimony on 18-19Feb87.  Perhaps this is our strongest piece of evidence that the judges were allowing the audience to disrupt and intimidate the defense, as defense counsel O'Connor makes reference to "hissing" and "booing," and judge Levin does not object to this depiction of audience behavior:

O'CONNOR:  With all due respect, if there is not enough dignity accorded to this Court, where there is hissing and booing as if this is a body ... and not something for history Your Honor, this is going to be recorded in infamy.

LEVIN:  I once again request the public the defense counsel is complaining about the noise in the hall and the noise is disruptive and distracting.  The public is earnestly requested to observe the silence and keep quiet otherwise we will have to adopt other measures.  (Morning Session, 19Feb87, p. 575)

Whose ellipsis was that?  One has no way of knowing whether the ellipsis in "as if this is a body ... and not something" is indicative of O'Connor's failing to complete his own statement, or rather is indicative of the translator's preferring not to repeat O'Connor's negative depiction of the Israeli court.

Aspiring to Western standards of justice.  In any court aspiring to Western standards of justice, the three judges presiding over the Demjanjuk case would have taken action on their own initiative to stop the hissing and the booing, and would not have waited for O'Connor to complain of it first.  In any court aspiring to Western standards of justice, furthermore, the judges would have made their admonition stick, instead of permitting the audience disruption to continue as they did, as is evidenced by O'Connor complaining two more times during the course of Arad's testimony, as can be found documented in the letter below (see the excerpts from pp. 591 and 617).

Judge Levin above can be seen to admonish the audience ineffectively.  (1) Judge Levin weakens his admonition by reminding the audience that it is being made at O'Connor's behest ("the defense counsel is complaining about the noise"), whereas the admonition would have been stronger if it had been depicted as being a requirement of the court.  (2) The admonition is depicted as a "request" and as an "earnest request" whereas it should have been depicted as a demand or an order.  (3) Judge Levin cautions that a failure of the audience to comply will necessitate the adoption of "other measures," but does not indicate what these are, and even as the disruption continues, never adopts any other measures.  In other words, judge Levin, along with the other two judges sitting on the Demjanjuk case, is fully aware of the audience hissing and booing, has already heard several complaints of it from defense counsel, has already issued several weak rebukes which the audience has ignored, and in issuing his limp warning this time, and in failing to take decisive action, signals his intention to allow the hissing and booing to continue.

  March 5, 1999
Yitzhak Arad
Yad Vashem
PO Box 3477
91034 Jerusalem

Yitzhak Arad:

It would appear that your February 1987 testimony in the Jerusalem trial of John Demjanjuk for being Ivan the Terrible of Treblinka was accompanied by noise from the audience, much of it possibly disruptive outbursts directed against the Demjanjuk defense.

For example, we see in the court transcript Judge Dov Levin making attempts to establish control over the audience, and we see that it appears to be the defense counsel in particular whose work the audience is interfering with:

LEVIN:  I should like to ask the audience insofar as possible to keep quiet.  The noise is disruptive.  It interferes with the work of the attorneys and of the court.  I believe that it also annoys the audience too, so I ask you to please be quiet.  (Morning Session, 17Feb87, p. 234, the speaker prior to Judge Levin's admonition was defense attorney Yoram Sheftel)

LEVIN:  I would very much like to ask the audience in the hall in so far as possible to keep silent, because it is disruptive.  It is interfering with the defense counsel's work.  (Morning Session, 18Feb87, p. 384)

Even though this is not a regular courtroom, but a spacious auditorium hired especially for the Demjanjuk trial, it is so packed that members of this disruptive audience are being allowed to stand along the walls:

LEVIN:  To ask the people in the hall to please keep silent.  We will have no choice, if this noise continues, but to remove from the hall all those who are standing at the sides, and therefore I very much ask you may stay in the hall, and I believe it is important that there are people in the hall, but to the same extent it is important that this trial continue properly and that the Defense Counsel is not interrupted and that he can go on smoothly.  (Morning Session, 18Feb87, p. 388)

LEVIN:  I want to ask once again, we cannot continue with this discussion with so much noise from the hall.  Unless there is silence in the hall I shall have no choice but to ask that all those standing on the sides be removed from the hall and if need be I might have no choice but to go beyond this.  We must conduct this hearing in a proper fashion and we must enable the litigents to carry out their duty as expediently as possible.  Thank you.  (Morning Session, 18Feb87, p. 427)

We observe next that defense attorney Mark O'Connor is the one to object to the noise, with Judge Levin passing along a more abbreviated admonition to the audience, and with the threat of removing audience members from the hall no longer repeated:

O'CONNOR:  Well, its very difficult to conduct cross-examination when we have this type of reaction from the audience, extremely difficult because of the seriousness of what is being presented for history as well as the seriousness of the life of my accused which is in my hands, Your Honor, I must make comment when these types of outbursts are allowed.

LEVIN:  The request is to the audience, please do not react in any way, because it is disruptive and distracts the defense counsel.  He has a very difficult task and the audience, the public is asked to take this into consideration.  (Afternoon Session, 18Feb87, p. 470)

After that, although the audience does not appear to have quieted down, Judge Levin's admonition becomes briefer still:

LEVIN:  Silence in the court, please do not interfere.  (Afternoon Session, 18Feb87, p. 495)

Finally, it is defense attorney O'Connor alone who objects, with heightened emphasis in his second statement below, but with Judge Levin failing to address any further admonitions to the audience:

O'CONNOR:  If it please the court, continual uproar in the audience.  (Morning Session, 19Feb87, p. 591)

O'CONNOR:  The noise in the Court is so intense, I can't even hear on the headset, Your Honor.  And it is continuing even as I speak to you, with no control in the courtroom.  (Morning Session, 19Feb87, p. 617)

The impression created by the above excerpts from the court transcript is that the three judges abandoned attempts to control the audience, and that the audience was allowed to continue being noisy and disruptive without further objection from the court.

In connection with the above, I wonder if you would be able to answer the following six questions:

(1) Would you be able to confirm the impression created by the court transcript that the atmosphere of the courtroom was unprofessional, disruptive, and intimidating to the defense?

(2) Would it be fair to conclude that the reason that the prosecution did not complain of noise was that the audience became disruptive only during the work of the defense?

(3) Would you agree that the three judges made only perfunctory attempts to impose order in their court?

(4) Based on your experience testifying in trials around the world, would you say that such disruption from the audience is allowed in other countries, or only in Israel?

(5) Based on your experience testifying in other trials in Israel, would you say that such disruption from the audience is allowed in other Israeli trials, or was allowed only in the trial of John Demjanjuk?

(6) If you did feel that audience unruliness was prejudicial to the defense, or perhaps that it reflected poorly on Israeli justice, can you bring to my attention any statement that you made following your testimony protesting such unruliness?

Lubomyr Prytulak