July 8, 1999
Alan M. Dershowitz
Felix Frankfurter Professor of Law
520 Hauser Hall
Harvard Law School
1575 Massachusetts Avenue
Cambridge, MA 02138
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:
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:
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.
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:
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:
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:
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:
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.
Thus, I was surprised to read in your reply to Lord Denning the following discrepant account of the same event:
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.
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
(2) Financial Times (London)
(3) Gazette (Montreal)
(4) Globe and Mail (Toronto)
(5) Le Devoir (Montreal)
(6) Le Monde (Paris)
(7) New York Times
(8) Ottawa Citizen
(9) Times (London)
(10) Times Colonist (Victoria)
(11) Toronto Star
(12) Ukrainian Weekly
(13) Vancouver Sun
(14) Washington Post
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.