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Edward Nishnic   Ukrainian Weekly   10-Mar-1991   Address to The City Club of Cleveland, I


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The strange case of John Demjanjuk

Presumed guilty: this century's most controversial capital case

Following is the full text of an address about the John Demjanjuk case delivered at The City Club of Cleveland on February 19.  The City Club, which is considered "a citadel of free speech," has had a national reputation since 1912 as each week it presents national and local speakers on a variety of current issues.

Edward Nishnic is president of the John Demjanjuk Defense Fund and a son-in-law of Mr. Demjanjuk.  We publish his speech here, in two parts, with his permission.

by Edward Nishnic

PART I

"He's a Nazi.  He's a killer."  These were the words of Israeli Prime Minister Shimon Peres broadcast to the world on February 28, 1986, before John Demjanjuk's airplane touched down in Israel, before his trial on charges of being "Ivan the Terrible" of Treblinka.

"Innocence is not something to be believed, innocence must be proven."  These were the words of District Court Judge Dov Levin, about the Demjanjuk case, over which he presided, as quoted in the Cleveland Plain Dealer in 1988.

Listen, too, to the words of U.S. Congressman Joshua Eilberg, chairman of the Subcommittee on Immigration, Refugees and International Law, writing to U.S. Attorney General Griffen Bell in August of 1978: "Reports have reached me that deficiences have become apparent in the preparation of the case of U.S. v. Demjanjuk....  I strongly urge you to place the direction of the proceedings in the hands of the special litigation unit....  We cannot afford to risk losing another decision."

I have entitled these remarks "Presumed Guilty."  I do this because, perhaps more than any other in recent memory, the Demjanjuk prosecution was the focus of historical pressures that combined to deprive the defendant of the usual presumption of innocence.  As a result of these historical pressures, the customary safeguards broke down, creating a unique potential for factual error.

Few capital cases have been prosecuted amid such pressures, for a number of reasons.

First there was the commitment by virtually all the civilized Western governments, including the U.S., to seek redress for the crimes of the Holocaust.  This was a commitment which was right and just, which no civilized person could fail to understand and support.

Next there was the heinous nature of the crimes at issue � the extinction of an almost incomprehensible number of human lives, more than 900,000, by a single monstrous individual, one of the most brutal and sadistic killers in history.

Next there was the nature of the prosecution's witnesses � individuals, Holocaust survivors, who unquestionably had to be, deserved to be, the object of compassion for having experienced the worst any human being has ever been called upon to experience.

Finally, there was the involvement of the two superpower governments, the U.S. and the USSR, in the Demjanjuk prosecution, as a result of which the Demjanjuk case at times seemed to be more of an item on a superpower agenda than a matter of law, of guilt and innocence.

And so, early on, it became clear to the defendant's family that we could not rely on the presumption of innocence and the state's burden of proof, as in a criminal case under American law � as that presumption would be available to any one of you here in the unlikely event you should ever be charged.  In the candid words of Judge Levin, it was up to the defendant to prove his innocence.

The defense had to, in fact, find the individual responsible for these heinous acts and prove John Demjanjuk's innocence by proving the guilt of the real Ivan the Terrible.  And, lest there be any doubt, it has always been the position of the Demjanjuk family, and of John Demjanjuk personally, that the historical facts are unquestionable, and we have never questioned them: that Ivan the Terrible existed; that Treblinka existed as one of the worst killing fields in history; that the gas chambers cannot be questioned; and that 6 million Jews died in the Holocaust.  It is only the identity of the defendant in this case that we question.

It was perhaps because of the political and historical factors I mentioned that the investigation of the identity of Ivan the Terrible by the U.S. Justice Department was shockingly deficient and superficial.  In fact, there was no investigation as would be done in the usual case.  Instead of requesting from the Soviets whatever historical evidence they had in their possession concerning the identity of Ivan the Terrible of Treblinka, whose crimes were known to the victorious Allies as early as 1945, the Justice Department originally relied on an accusation by a notorious New York-based Soviet propaganda journal, which listed Demjanjuk as a guard at Sobibor, a theory for which the U.S. government subsequently could find no evidentiary support.  When the Sobibor theory failed, the U.S. prosecutors, under the pressure of Eilberg's warning not to lose the Demjanjuk case, turned to another theory, that Demjanjuk was Ivan the Terrible.

Yet, in 1976 and 1977, at the same time as the U.S. authorities were commencing their case against John Demjanjuk, the Soviets knew what the Demjanjuk defense did not know: that war crimes trials had been held in the USSR in 1949 and 1951, and that the transcripts of those trials identified the operator of the gas chambers at Treblinka as one Ivan Marcienko, not Ivan Demjanjuk.

And so, as early as 1949 and 1951 the Soviets knew, and prior to 1976 the Americans should have been told, that the individual they were looking for as Ivan the Terrible was named Ivan Marczenko.  Yet 1976 was the year U.S. authorities charged a man named John Demjanjuk with the deaths of 900,000 people.

It was not until 13 years later, in October of 1990, in the wake of glasnost and the extraordinary events which have transformed the Soviet Union, that an official of the Ukrainian Supreme Soviet located the files containing the 1949 and 1951 transcripts and notified the Demjanjuk defense that he had found evidence of Ivan the Terrible's true identity.

That was after defendant John Demjanjuk had been sentenced to death, after his lawyer lost his life in a mysterious fall from the window of a Jerusalem hotel, and after another defense lawyer for Demjanjuk was partially blinded in an acid attack.

On December 31, 1990, Demjanjuk defense counsel Yoram Sheftel presented to the Israeli Supreme Court in Jerusalem two documents which confirm that Ivan the Terrible was in fact Ivan Marczenko.  Both documents were letters from Oleksander Yemetz, chairman of the Human Rights Committee of the Ukrainian Supreme Soviet, the Ukrainian official whom I mentioned.  The Yemetz letters summarized what he saw when he looked through war crimes files in the KGB offices in Kiev, containing transcripts of the 1949 and 1951 trials.

As Yemetz looked through a portion of the files, he wrote down what he saw, and what he saw directly refuted the prosecution's case: eyewitnesses with no motive to lie, no zeal to achieve a conviction, who had participated in the horrible events at Treblinka and were now defendants, described the operator of the gas chamber diesel motor as Ivan Marczenko.  There was no dispute either about his identity or his physical description.

Listen closely to the physical description which they gave of this monstrous individual: a tall, broad-shouldered, dark-complected, dark-haired individual.  This is significant because to date, several individuals from different countries, with no opportunity to communicate among each other, have described Ivan of the gas chambers as being dark-complected with dark hair.  As anyone who has seen a picture of John Demjanjuk knows, he is fair-complected, and his hair was never dark.  On the Trawniki card, which allegedly shows his appearance during World War II, his hair is blonde.

Eyewitness Otto Horn, a prosecution witness, when originally interrogated by the U.S. authorities, described Ivan the Terrible as "black-haired."  That description did not fit the defendant, John Demjanjuk.  What did U.S. authorities do with that description?  They threw it out, suppressed it, and their witness testimony was changed, coincidentally, to fit John Demjanjuk.

The memorandum of the original interrogation of Otto Horn was retrieved from the garbage outside the Justice Department's Washington, D.C., office, where U.S. officials obviously believed it would be discarded and never see the light of day.  After that memorandum, the physical description of Ivan originally given by Horn was never repeated.

Prosecution witness Pinchas Epstein, a Treblinka survivor who knew Ivan the Terrible, originally described him in 1960 � before John Demjanjuk was accused � as having dark hair and a dark complexion.  Sixteen years later, in 1976, Mr. Epstein identified John Demjanjuk, a blonde-haired individual, as Ivan the Terrible.  Why?  Perhaps you can explain it.  I can't.

The most significant discovery to date on the true identity of Ivan the Terrible just occurred this past month in the Soviet Union.  Because of the intervention of Congressman Traficant, I was part of a U.S. congressional team which travelled to the Soviet Union to interview some of the eyewitnesses who experienced the horrors of Treblinka as captives and forced laborers for the Nazis.

These were women who knew Ivan, because they were forced to work as cooks in the death camp kitchen.  Working with them in the kitchen at Treblinka were Jewish boys, pressed into service by the Nazis from among the Jewish prisoners.  Four of us traveled to a remote village in the Soviet Union, in Ukraine, to interview these survivors of Nazi captivity.

We went to the house of the first eyewitness, an old woman who is gravely ill with Parkinson's disease.  She agreed to speak with us.  With us, we had photographs of Treblinka guards and photographs of John Demjanjuk.  We asked her about her experiences in Treblinka.  She recalled how the Nazis had rounded up 10 girls from her Ukrainian village and transported them first to Germany, then to Poland, and then to a place called Treblinka.  She was one of those girls.

Without mentioning a name, we asked her if she remembered any of the guards at Treblinka.  She looked up immediately and said: "Ivan Marczenko.  He operated the gas chambers."  She was visibly shaken.  When we asked her to describe Ivan Marczenko, she told us she was afraid he might find out and come back and kill her.  We told her that we believed Ivan had been dead since 1945.  She then gave a description of Ivan Marczenko which matches that given by Otto Horn in his original interview, by Pinchas Epstein in his interview and by the defendants in the 1949 and 1951 Soviet war crimes trials: very tall, long-nosed, large build, dark hair.

Here is her affidavit: "In the camp I worked in the kitchen, where I often saw many guards.  I remember Ilchyk, Davidenko and Marczenko.  Ivan Marczenko worked near the gas chambers, chased the Jews into the gas chambers and released the gas.  We often smelled the odor from that area.  That was in the other section of the camp.  Ivan Marczenko was very tall, long-nosed, had a large build and dark face.  Perhaps the Ukrainian girls who were brought to work there knew him better than anyone because we saw him often.  I heard from the prisoners what Ivan Marczenko did in the camp....  On the photographs that were shown to me during this statement I do not see Ivan Marczenko."

The four of us then went to a very primitive home, more like a hut, where Nina Shienko, the second eyewitness, now an old woman, lived.  She agreed to speak with us about her experiences in Treblinka.  Again, we had photos of John Demjanjuk.  Her mood was somber.  She recounted how she worked in the kitchens at the death camp, along with a Jewish boy named David.  We asked her if she had ever heard of a guard named Marczenko.  She said yes, Ivan Marczenko.  She said her friend David told her that the Jews referred to him as Ivan Grozny, Ivan the Terrible.

Her statement reads: "I, freely and voluntarily hereby state that from February 1943 to the uprising in 1943 I was in the Treblinka death camp located in Poland.  In the camp I saw almost daily the guard Ivan Marczenko.  The prisoners called him among themselves, Ivan the Terrible.  Ivan Marczenko was very tall, of extraordinarily large stature, broad-shouldered, had dark hair and a tanned complexion.  In the photographs, which were shown to me during the giving of this testimony I did not see Ivan Marczenko, also known as Ivan the Terrible.  Signed, Nina Shienko."

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