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Alan Dershowitz   Letter 03   08-Jul-1999   Do you want to get caught?
"He speaks out frequently and forcefully on Jewish causes, but when he does so, many who support such causes often cringe." George E. Berkley
July 8, 1999

Alan M. Dershowitz
Felix Frankfurter Professor of Law
520 Hauser Hall
Harvard Law School
1575 Massachusetts Avenue
Harvard University
Cambridge, MA   02138
USA

Alan Dershowitz:



Are You a Loose Cannon?

You have made a number of statements which harm the interests of John Demjanjuk, either by affirming his guilt, or by affirming that legal proceedings against him have been fair.  To take one example, when once-Soviet-dissident turned Israeli politician Natan Sharansky met with John Demjanjuk and expressed an interest in his case, you sabotaged the possibility that Sharansky would support Demjanjuk:

After he returned from his visit to the prisons, Natan called me and asked me to brief him on the evidence in the Demjanjuk case.  I did so in detail, assuring him that the non-Soviet evidence proved overwhelmingly that Demjanjuk was indeed the murderous and sadistic prison guard that he denied having been.
Alan M. Dershowitz, Chutzpah, Little, Brown and Company, Boston, Toronto, and London, 1991, p. 267

I notice that Natan Sharansky's name is not among the signatories to the Appeal by former prisoners of conscience to Israel on behalf of John Demjanjuk of 1993.  Perhaps keeping Natan Sharansky from signing that appeal is one of the accomplishments for which you can take credit.

However, my impression is that your statements concerning John Demjanjuk are misinformed and possibly duplicitous.  The consequence of your statements may be that you injure an innocent man, that you degrade the image of Ukrainians, that you damage Ukrainian-Jewish relations, that you lower Jewish credibility, and ultimately that you diminish your own reputation a sort of danger that is appreciated not only by myself:


While [New York talk show host Howard] Stern's antics certainly reflect on the rest of us [Jews], more reputable aggressive wimps can create much greater damage.  A good example of such is the Harvard Law professor and celebrated defense attorney Alan Dershowitz.  [...]  He speaks out frequently and forcefully on Jewish causes, but when he does so, many who support such causes often cringe.

The Ivan Dem[j]anjuk trial provides a case in point.  Dem[j]anjuk, it will be recalled, was an elderly Ukrainian immigrant to the U.S. who, in the late 1980s, was extradited to Israel to face charges of having been Ivan the Terrible, the chief executioner at the Treblinka concentration camp.  The evidence against him consisted chiefly of Soviet-supplied records and the memories of survivors, all of them now elderly themselves.  It was a sensitive case and any mishandling of it could harm Israel and the Jewish people as a whole.  But Dershowitz, who boasts of the grateful Christmas cards he gets from murderers and rapists he has kept out of prison, lost no time in branding Dem[j]anjuk as a "trained mass murderer" and calling the evidence against him "overwhelming."  Israel's high court eventually found the evidence to be far less than that and released him.
George E. Berkley, Jews, Branden Publishing Company, Boston, 1997, p. 63.

I will open my case against you with a demonstration of what appears to be your public misrepresentation of the nature of the audience reaction upon the death sentence being pronounced against John Demjanjuk which reaction bears some relevance to the question of whether John Demjanjuk had been given a fair trial.


It Appears that the Demjanjuk Audience
Was Out of Control

What the first two days of trial testimony say

Upon reading Yitzhak Arad's testimony on the first two days of John Demjanjuk's Jerusalem trial, I counted nine notices being taken of unruliness in the audience.  This unruliness seemed to be directed at the defense, and it was at one point characterized by defense counsel O'Connor as "hissing and booing," to which depiction judge Levin did not object.  The Israeli judges allowing the audience to hiss and boo the defense might be viewed by some as not easily discriminable from the Israeli judges allowing the audience to harrass and intimidate the defense.  Below I reproduce two of these nine instances:

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)

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 that is gained from a reading of the court transcript is that the Israeli judges lost control of the audience in the first two days of testimony of the trial.

accords with what Yoram Sheftel says

Thus, it surprises me not at all that by the end of the trial, the audience had turned into a mob.  In the words of Yoram Sheftel, John Demjanjuk's Israeli defense attorney:


The minute the word "death" escaped Judge Tal's lips, a terrible commotion began in the courtroom.  All the disorder there had been up to then was merely naughtiness compared to the chaos that erupted now.  The unruly crowd began cursing, shouting and screaming insults.  "Death, death," "Death to Ivan," "Death to the defence attorney," "Death to all Ukrainians," "Death, death, death!"  The people were dancing, stamping their feet, waving fists in the air.  There had been so many disturbances and displays of violence, but this time my heart skipped a beat.  The mob was ready to lynch anyone who got in its way.  I stayed in my seat and watched.  Here, I thought, this is the disgraceful, but apt, finale to Ivan Demjanjuk's show-trial.  Whenever I remember that grotesque sight I think that, as the mob shouted, "Death to the defense attorney," it could just as easily have shouted, "Death to the judges," had the trial not ended in the death penalty.  After watching this uproar for several long minutes, I was fed up.  My colleagues, shocked by what was happening around them, left the hall with me.
Yoram Sheftel, The Demjanjuk Affair: The Rise and Fall of a Show-Trial, Victor Gollancz, London, 1994, p. 225.

That among the shouts was indeed "Death to the defense attorney" is testified to by its being affirmed in the defense's statement of appeal:

[T]he conclusion of the trial was characterized by occurrences reminiscent of soccer fields, i.e. applause and shouts of spectators in the course of the reading of the verdict and also following the sentencing where instead of the infamous shouts known in soccer stadiums, death to the referee, were heard shouts of death to the counsel.
From p. 30 of the defense appeal statement, of which I am consulting a first draft.


and accords with what Lord Denning says

And when Lord Denning commented on the Demjanjuk case in a letter to the Daily Telegraph of 28Apr88, his information concerning audience response seemed to correspond to Yoram Sheftel's account above:

The atmosphere at the trial can be seen by the report that there was "clapping, cheering and dancing" by the packed "audience" when he was sentenced to death.  When I have sentenced to death there was a hushed calm and solemn silence.
Lord Denning, Daily Telegraph, 28Apr88.

All of the above paints one consistent picture of an audience that was out of control at the beginning of the trial, and that deteriorated into a lynch mob by the end.


But You Say that the Demjanjuk Audience
Was Well-Behaved

Thus, I was surprised to read in your reply to Lord Denning the following discrepant account of the same event:

As for the "cheering" by the "audience," I was there when the sentence was read.  The mood was solemn as the judge delivered the sentence of death.  The only sounds were the muffled sobs of several survivors.  It was only after the judges left the courtroom that a small number of people joined together in songs [and] prayers....  There were few cheers and many tears.
Alan M. Dershowitz, Chutzpah, Little, Brown and Company, Boston, Toronto, and London, 1991, p. 169.  Material in square brackets was in the original.



Somebody is not Telling the Truth

Thus, your account can be seen to differ radically from that of Yoram Sheftel and of Lord Denning:

(1) When did the main eruption take place?

Whereas you place the onset of the audience eruption after the judges left the auditorium, Yoram Sheftel and Lord Denning depict it as being triggered by the pronouncement of the sentence of death.

(2) How many participated in the eruption?

Whereas you restrict the number participating in the eruption to "a small number of people," Yoram Sheftel and Lord Denning do not express any similar restriction.

(3) What did the eruption consist of?

Whereas you depict the eruption as starting with muffled sobbing, and only after the judges had left the auditorium being followed by prayer and singing, Lord Denning's information is that there was immediate clapping, cheering, and dancing, and Yoram Sheftel's recollection is that there was immediate cursing, shouting, screaming insults, stamping feet, waving fists, and chanting which often employed the word "Death!" and which often specified the target whose death was desired.  Your stating that "there were few cheers" is the closest you come to acknowledging that the audience behaved inappropriately, and your wording waffles as to whether you are acknowledging that "there were indeed a few cheers," or whether your meaning is closer to "there were effectively no cheers."

But no matter how your "there were few cheers" is interpreted, the discrepancy between your account and that of Yoram Sheftel together with Lord Denning will remain large.  The discrepancy between your account and the unruliness evident in the first two days of testimony will remain large as well.  This discrepancy is not one that might be explained by a difference in emphasis or of perspective rather, it is apparent that someone is not telling the truth.  In an effort to find out who, I turned to other sources.



Let's Find Out Who by Checking the Papers

The fourteen press reports depict a much more extreme audience reaction than the one you describe.

Le Monde report below by the mob pouring out into the street and attempting to intercept Demjanjuk's prison van while shouting that the death penalty was too mild and while waving a placard recommending "Starve the Ukrainian beast to death!"

The fourteen press reports depict a slightly less extreme audience reaction than the one Yoram Sheftel describes.

Although all press reports below describe an audience response far more extreme than your description, all of them nevertheless are somewhat more muted than is Yoram Sheftel's candid description above, perhaps because many of the reporters present at the trial could not understand the Hebrew or Yiddish of the audience ejaculations, and perhaps also because the press sacrifices accuracy under pressure to portray Jews favorably.

The fourteen press reports.

The press reports below are excerpts only.  They are alphabetized by newspaper.  Of all the reports that I saw, I have not included three below: two were small-circulation-newspaper repetitions of the Associated Press wire which can be seen in the Toronto Star and Vancouver Sun below; and one was the 26Apr88 Wall Street Journal report which devoted only eight lines to the entire sentencing to death, and so was too brief to include any mention of audience reaction.  Where a newspaper mentioned audience reaction either before or after the sentencing to death, that mention is included below to help measure the mood of the crowd.  To assist your locating the critical passages, I have highlighted references to crowd reaction in blue, and indications of when that reaction occurred in red.


(1) Edmonton Journal

Jews cheer as 'Ivan' to hang

Journal News Services
JERUSALEM
Retired Cleveland auto worker John Demjanjuk Monday was sentenced to hang for herding 860,000 Jews into Nazi gas chambers and turning on the fatal fumes.  The courtroom erupted in wild cheering and singing as the sentence was read.

[...]

Demjanjuk, a Ukrainian-born Christian who had earlier crossed himself repeatedly and declared, "I'm not Ivan the Terrible, and to that God is the most just witness," sat ramrod-straight and expressionless as Tal spoke.

But the jampacked audience of 200-plus, including dozens of Holocaust survivors, exploded into applause, chanted "Death! Death!" and repeatedly sang "The People of Israel Live," the refrain from a popular nationalist song.
Journal News Service, Jews cheer as 'Ivan' to hang, Edmonton Journal, 26Apr88, p. 1.

(2) Financial Times (London)

"The blood of the victims cries out to us," said Judge Dov Levin, president of the bench, as he passed the death sentence.  The court ruled that Mr Demjanjuk had been "no small cog" in the Nazi machine, but "a chief hangman."

As the sentence was announced, the packed courtroom broke into applause and singing, reflecting the obsessive interest which the trial had aroused throughout Israel.  Earlier, as Mr John Gill, the US chief defense counsel, argued that the judges should not apply the death penalty, for fear of a miscarriage of justice, a loud hiss ran around the converted theatre.
(Andrew Whitley in Jerusalem, Demjanjuk sentenced to death by Israeli court, Financial Times (London), 26Apr88, p. 1.

(3) Gazette (Montreal)

Demjanjuk's death sentence cheered

Gazette News Services
JERUSALEM
Spectators erupted in cheers yesterday as John Demjanjuk was sentenced to death by the Israeli court that found him to be the brutal Nazi death-camp guard known as Ivan the Terrible.

[...]

Hundreds of weeping spectators many of them relatives of Jews lost in the Nazi genocide, a handful of them survivors of it burst into rhythmic applause when the sentence was announced, chanting, "Death, death, death!"

"The people of Israel live!" they sang in celebration that continued after the three-judge panel left the courtroom in the converted movie theatre where the 15-month trial was held.
Gazette News Services, Demjanjuk's death sentence cheered, Gazette (Montreal), 26Apr88, p. 1

(4) Globe and Mail (Toronto)

"He was the chief hangman who with his own hands, cruelly killed tens of thousands of people," Judge Zvi Tal said after hearing final pleas from the two sides.  "We sentence him to die."

Judge Tal's words set off a spontaneous outburst of applause and singing in the packed Jerusalem courthouse.

[...]

"The blood of the victims still cries out to us ... and still Ivan the Terrible stands and poisons, stands and stabs, and his face has not turned old.  ...  There is no forgiveness in the law or in the heart."

The sentence was greeted with wild cheering from many of the hundreds of Israelis crammed into the converted cinema that has served as a courtroom since early last year.
Hugh Schofield, Israeli court sentences Demjanjuk to be hanged for Nazi war crimes, Globe and Mail (Toronto), 26Apr88, p. A2.

(5) Le Devoir (Montreal)

Les trois juges du tribunal de district de Jérusalem ont condamné, hier, à la peine de mort John Ivan Demjanjuk la deuxième peine capitale à être prononcée en Israël après celle contre le criminel nazi Adolf Eichmann en 1961 sous les chants et les applaudissements d'une salle en délire.

[...]

Les juges ont autorisé l'accusé, amené dans la salle d'audience sur une chaise roulante, à ne pas se lever pendant la lecture du verdict, et Demjanjuk est resté impassible en entendant sa condamnation avant que deux policiers ne l'évacuent aussitôt après.

Les quelques centaines de spectateurs qui assistaient à l'audience dans une atmosphère électrisée se sont levés et ont applaudi à tout rompre alors que de jeunes religieux entonnaient le chant juif traditionnel Que vive le peuple juif, repris en choeur par une partie de la salle.

D'autres personnes laissaient couler une larme en souvenir des six millions de juifs qui ont péri dans les camps de la mort nazis.

"Cette conduite est scandaleuse et de telles manifestations d'hystérie ne peuvent qu'assombrir un procès qui a duré 14 mois et dont le déroulement a été en tout point examplaire", a confié a l'AFP un jeune juif américain outré.
AFP, PC, John Demjanjuk condamné à mort, Le Devoir (Montreal), 26Apr88, p. 1.

(6) Le Monde (Paris)

Insultes et chants de joie

Mais dans l'assistance, où figuraient plusieurs rescapés de Treblinka, on se souciait peu de procédure.  On était convaincu que le paisible garagiste de Cleveland avait bien été Ivan le Terrible, l'auxiliaire des SS chargé de mettre en marche les moteurs des chambres á gaz et qui, durant trois ans (1942-1945), à l'entrée des "mouroirs", s'acquitta de sa tâche avec un extrême sadisme.  Dans un tonnerre d'applaudissements, on insulta la défense avant de danser et d'entamer des chants de joie: "Israël vivra."  On se bousculait a l'extérieur, pour tenter d'intercepter le fourgon du condamné, hurler que la peine était encore "trop douce" et brandir une pancarte sur laquelle on pouvait lire: "Laissez la bête ukrainienne mourir de faim."
Alain Franchon, Israël: La condamnation à mort du bourreau de Treblinka, Le procès de John Demjanjuk a été aussi celui des thèses "révisionnistes," Le Monde (Paris), 27Apr88, p. 3.

(7) New York Times

Hundreds of weeping spectators many of them relatives of Jews lost in the Nazi genocide, a handful of them survivors of it burst into rhythmic applause when the sentence was announced, chanting, "Death, death, death!"

Appeal to Be Filed

"The people of Israel live!" they sang in celebration that continued after the three-judge panel left the converted movie theater where the 15-month war-crimes trial was held.

[...]

Also among the shouting, clapping, whistling throng that celebrated for 15 minutes after the judges left the courtroom was Josef Czarny, another death camp survivor.
John Kifner, Demjanjuk Given Death Sentence, Ruling by Israeli Court, Spectators Weep and Clap as Guard at Treblinka Hears He Is to Be Hanged, New York Times, 26Apr88, p. A1, A11.

(8) Ottawa Citizen

"The blood of the victims still cries out to us," Judge Zvi Tal read from the panel's decision.  "We sentence him, for the crimes he has done and for what he has been convicted of, the death penalty."

Spectators in the packed courtroom burst into applause when the judges announced the sentence for the man convicted last week of being the sadistic guard Ivan the Terrible.  People shouted "bravo," the Hebrew word "mavet" for death and began singing "The people of Israel live."

Shortly before the sentence was read, Demjanjuk, 68, shouted from a wheelchair, "I am innocent."  Someone in the courtroom yelled back, "You're a liar."

[...]

The audience hissed as Demjanjuk said it was "very painful for me to sit here and hear the terrible tragedy that befell the Jewish people because of Nazism....  They died a terrible death and I hope they all reached heaven."
UPI, Demjanjuk sentenced to be hanged, Ottawa Citizen, 25Apr88, pp. A1, A2.

(9) Times (London)

Demjanjuk sentenced to hang
Cheers and dancing at end of 'Ivan' trial

From Ian Murray
Jerusalem


To clapping, cheering and dancing by the packed audience, John Demjanjuk was yesterday sentenced to death for the murderous war crimes of "Ivan the Terrible", mass executioner at the Treblinka death camp.

As the crowd, including some Holocaust survivors who gave evidence, chanted "Death, death, death," Judge Zvi Tal read out the sentence, which was phrased in classical Hebrew that seemed inspired by the Old Testament.

[...]

While condemning what happened in the death camps, Mr Gill called into question the court's reliance on the memory of Treblinka witnesses.  This led him on to a line of argument which clearly angered the bench and caused hissing from the audience.
Ian Murray, Demjanjuk sentenced to hang: Cheers and dancing at end of 'Ivan' trial, Times (London), 26Apr88, pp. 1, 9.

(10) Times Colonist (Victoria)

A judge sentenced John Demjanjuk Monday to die for Nazi war crimes and said the retired U.S. autoworker personally killed tens of thousands of people as the sadistic death camp guard Ivan the Terrible.

Hundreds of spectators jumped to their feet and applauded.  Some shouted "Bravo!" and others "Death! Death!"  Survivors of the Holocaust, in which six million Jews were killed, cried and embraced each other.

[...]

Demjanjuk pointed to his chest and repeatedly shook his head to Blattman's allegations that he "distinguished himself by the sheer brutality of his behavior.  He cut off breasts, slashed faces, beat in skulls."

He crossed himself each time Blattman mentioned an atrocity, causing murmurs among the 650 spectators.

[...]

Demjanjuk bumped his head as guards lifted him into the van.  He could be seen slumped in the wheelchair as the vehicle drove past jeering spectators.
Mary Sedor, Demjanjuk to hang for war crimes, Times Colonist (Victoria), 26Apr88, p. 1.

(11) Toronto Star

"He was a chief hangman who with his own hands killed tens of thousands with cruelty ...  We sentence him to death," said Judge Zvi Tal.

Onlookers clapped and shouted as the sentence was announced.
Associated Press, Demjanjuk sentenced to death for war crimes, Toronto Star, 25Apr88, p. 1.

(12) Ukrainian Weekly

After the sentence was pronounced, hundreds of spectators in the court-room jumped to their feet, applauded and cheered.

Some chanted, "Death, death," and others sang a patriotic Israeli song, "The people of Israel live."

As the courtroom audience celebrated, John Demjanjuk Jr. stood up and shouted, "This is judicial murder."
Staff reporter, Demjanjuk sentenced to death, Ukrainian Weekly, 01May88, pp. 1, 12.

(13) Vancouver Sun

Onlookers cheer sentence of death for Demjanjuk

Associated Press
JERUSALEM
An Israeli court sentenced John Demjanjuk today to be executed for war crimes committed as Ivan the Terrible, a Nazi guard who ran gas chambers during the Second World War.

"He was a chief hangman who with his own hands killed tens of thousands with cruelty," said judge Zvi Tal.  "We sentence him to death."

Onlookers clapped and shouted as the sentence was announced.
Associated Press, Onlookers cheer sentence of death for Demjanjuk, Vancouver Sun, 25Apr88, p. 1.

(14) Washington Post

The audience broke into applause as the sentence was read.  Someone shouted, "May his name and memory be erased and forgotten!"  Others began singing Jewish folksongs.

Some of the survivors, men and women mostly in their 60s or older, stood glassy-eyed while others stared straight ahead across 45 years at the condemned man surrounded by guards on the stage.
Glenn Frankel, Demjanjuk is sentenced to death: "These crimes can never be obliterated," Israeli judge says, Washington Post, 26Apr88, pp. A1, A24.



Is This a Case of
Overdoing the Chutzpah?

Error through ignorance, or error through falsification?

Almost every last thing that I have read you saying about John Demjanjuk is wrong.  In most instances, it is possible to attribute your erroneous statements to ignorance you simply hadn't gone to the trouble to inform yourself concerning the Demjanjuk case, and were arrogant enough to make public pronouncements on the case anyway.  The instance described in the present letter, however, falls into a different category an even more culpable one.  In the case of the Demjanjuk sentencing, you did not merely describe erroneously an audience reaction that you were ignorant of, but rather you described erroneously an audience reaction that you had witnessed.  Thus, you must have known that your description was in error.  Yours must have been a conscious falsification.

Do you share with Simon Wiesenthal the motivation of wanting to get caught?

Most instances of misrepresentation occur in situations in which verification is difficult, so that the person misrepresenting thinks he won't get caught.  What astonishes me is to see an instance of misrepresentation such as the one discussed in the present letter where verification is easy, and once sought pours down disconfirmation in a deluge.  A personality that is capable of misrepresentation in a situation where disconfirmation is that accessible and that plentiful invites speculation as to his motives.  The only comparable instance in my recent memory is that of Simon Wiesenthal, whose misrepresentation is so transparent that I have been driven to wonder whether he engages in it because he wants to get caught.  Your own misrepresentation strikes me as being similarly transparent, so that I wonder if you yourself might be similarly motivated.







Lubomyr Prytulak


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