B. S. Onyschuk   New Perspectives   May 1987   Five deviations from Western norms
"Scrupulous adherence to a fair criminal process for Demjanjuk is particularly important because the fairness of the trial afforded him is the measure of the slender thread that holds lawful societies above unlawful, and distinguishes "justice" meted out by an even-handed and judicious body of men from "vengeance" sought by a vigilante mob." B. S. Onyschuk
The five headings in blue below were added by the Ukrainian Archive to the original article.
The trial of John Demjanjuk: Questions of fairness and due process

By B. S. Onyschuk

The issue of the fairness of the trial of John Demjanjuk in Israel has recently had a lot of prominence in both the Ukrainian and English speaking media and press.  I was one of a group of four Ukrainian Canadians who travelled to Israel on March 8-18 to see first-hand this historically important trial one of the most significant criminal trials of this decade.  I went with no preconceived ideas or opinions as to the innocence or guilt of the defendant, but rather, being a trial lawyer who specializes in administrative law, interested in the judicial process and the evidentiary aspects of the trial as it was unfolding in Jerusalem.

Because of the extremely high profile nature of the trial, the heinous nature of the crimes alleged, the emotional aspects surrounding the trial, and most importantly, the fact that a finding of guilty could carry the death penalty, I took for granted that the trial would be carried out with a scrupulous adherence to well accepted and recognized Western principles of justice, fairness and due process, and that the court would ensure not only that justice would be done, but that justice "would seem to be done."  Furthermore, it seemed to me that the Israeli court would want to leave no possible incident, instance, or argument which could later be used by "naysayers" and deniers of the Holocaust to question the proceedings or the subsequent finding or verdict of the court, particularly if the defendant were found guilty.

No reasonable person questions the profound worthiness or legitimacy of Israel's "we shall not forget" motivation and its attempts to seek out and prosecute war criminals.  But as surely as the remembrance of the Holocaust is a worthy objective, so the proceedings in this trial warrant an absolutely scrupulous adherence to the fundamental principles of fairness and due process common to all Western judicial systems so that the result, whatever it is, will be just and will be seen to be just.

And it was in this latter area that I was surprised to find some very disturbing shortcomings in the case as it was unfolding aspects which touched the very essence of some of these cardinal principles of fairness and due process that should be applied in every criminal case and particularly in this one.

During my nine day stay in Jerusalem, I sat through three complete days of the trial (which could have been five days except that the court did not sit for two regular days because of holidays), and spent the other six days reviewing various parts of the transcripts and the evidence of the first four weeks of the trial, meeting and discussing various aspects of the trial with American and Jewish attorneys covering the trial, as well as members of the defence and prosecution teams of lawyers involved in the trial.

I was surprised, and troubled to find, five major problem areas in the conduct of the judicial proceedings and events around it which raise serious questions regarding the conduct of the trial, the issues of fairness and due process, and whether it adheres to certain fundamental and universal principles regarding criminal trials common to all Western judicial systems.

(1) Cost Must be Borne by Demjanjuk

The first basic element that caused me great concern was the fact that no part of the defence costs were being paid for by the State, and that the defendant had been left to his own means to fund his own defence in a trial that by everyone's account will last six to nine months.

One of the basic and integral components of "a full and fair trial" which is the universally accepted right of any accused is the right to a "full and adequate defence" in a capital case.  This does not mean that in every case the state has to pay the costs of the defendant, but in a trial as long and as unusual as this one, one has to question whether the defendant can afford to pay for his own defence, and whether as a result his whole defence will be adequately presented.

In the Eichmann trial, the State of Israel had agreed to pay and funded a substantial part of the defence, despite the fact that he was a self-confessed Nazi, and that there was no question as to his identity, or his position and his responsibilities in Nazi Germany.  In the Demjanjuk case, however, the defendant has steadfastly denied that he is "Ivan the Terrible," the person that he is accused of being, and yet he is left alone to pay the costs of his own defence against a battery of eight prosecution counsel and the weight of the entire State of Israel.

This troublesome question is complicated further by the fact that defence counsel tried to limit the length of the trial, and the issues in the trial, at the opening of the case, by a motion to the court in which the defence admitted the facts of the Holocaust, admitted the facts of Treblinka, admitted that there was an "Ivan the Terrible," and even admitted that "Ivan the Terrible" did the acts that he is alleged in the indictment to have done but disputed only that the defendant, John Demjanjuk, was the person known as "Ivan the Terrible."  The prosecution opposed that motion.  The court refused to limit the issues in the trial and allowed the calling of general evidence on the Holocaust and on related events for educational and historical purposes, thus putting the defendant to the expense of a six to nine month trial.  In these circumstances, and bearing in mind the gravity of the charges against the defendant, and the financially ruinous costs (even to a wealthy person much less to a former auto worker) of a nine month trial, the Government of Israel should have agreed to pay for the defence in order that the defendant could obtain "a full and adequate defence" in this capital case as he is entitled to by law in every enlightened country, and certainly in Israel.

I asked the prosecution lawyers why the State of Israel had not agreed to pay for Demjanjuk's court costs, or even a part of them.  Their answer was that they had offered to appoint a "public defender" to be appointed by the court from a panel of six Jewish lawyers, but that Mr. Demjanjuk had refused and insisted on having Mark O'Connor, the American attorney who had represented him throughout the various proceedings in the United States, to represent him at the trial.  I indicated to them that this was not a satisfactory answer; that in a case of this magnitude, where the accused is brought to Israel against his will to stand trial for crimes against the Jewish people and the Jewish State, that he could understandably be hesitant in accepting a Jewish attorney, even if he were court appointed; but that more fundamentally, in a capital case of this magnitude he was surely entitled to counsel of his own choice, particularly where the accused had an American attorney who had built up an intimate knowledge of the case in representing him in the U.S. court proceedings.

The prosecutors countered that they had offered to have Mr. Sheftel, the Jewish attorney picked by O'Connor to assist in the defence, appointed by the court as public defender for the accused, but that Mr. Sheftel had declined because he had made his own financial arrangements with Mr. O'Connor.  I learned subsequently that the public defender system in Israel pays a very small stipend daily to the lawyer who is appointed which would be totally inadequate as compensation for any competent attorney in a major trial such as this and also that the lawyer accepting such a position could not charge his client any additional amount above that stipend, and that in any event the scheme did not allow for the payment of the heavy investigative costs and witness costs associated with the trial.

Quite apart from the fact that the general testimony on the Holocaust has the obvious side effect of arousing the emotions of all those who follow the trial, and by its very nature is extremely inflammatory, making it difficult for anyone to deny the guilt of the accused without being seen to deny the Holocaust itself, the very fact that the accused is left to his own devices and his own financial means to fund a trial of this magnitude raises an extremely troublesome question of whether he has in fact been granted a full and fair trial by the State of Israel particularly where the precedent had been set in the Eichmann case where there was absolutely no question as to the defendant's guilt or innocence.

Shamir at trial

(2) Government Partisanship Against Demjanjuk

The second element that deeply concerned me, and which quite frankly I was extremely surprised to find, was the appearance at the trial of the Prime Minister and members of his Cabinet, and especially the public statements made by the Prime Minister and the Minister of Justice both before and during the course of the trial as to the defendant's innocence or guilt.  These statements were by their very nature extremely prejudicial to the defendant and would never have been tolerated in Canada, the United States, or any other Western jurisdiction.

Both the Minister of Justice and the Police Inspector-General apparently stated before the trial that they had "no problems" identifying the defendant as Ivan the Terrible, and that they were "convinced they had the right man."  Such a statement would be unthinkable for a Minister of Justice or any Attorney General in Canada or the United States.

But more serious was the actual appearance of Prime Minister Shamir in the courtroom on March 2 to listen to the evidence of the eyewitness Rosenberg who was then under cross-examination by Mark O'Connor.  After an hour, the Prime Minister rose and left the court through a clamouring crowd of photographers stating, according to the Jerusalem Post, "I did not come to give statements."  However, that same afternoon, addressing a classroom of Jerusalem high school pupils, the Prime Minister was reported by the same Jerusalem Post to have said the following about the witness Rosenberg and his evidence under cross-examination:

I am full of appreciation and admiration for the witness I heard, and I do not understand from where he draws the strength to stand up to a detailed examination of this horrible thing not to buckle under, not to burst out.

It is unthinkable in any Western democracy that a prime Minister, or any Minister of the Crown or Government, would make any statement about the conduct of a trial, or about the integrity or reliability of any witness.  It is an extremely prejudicial interference, affecting the defendant's ability to receive a fair trial, and would most certainly have caused a mistrial in any jury case in Canada or the United States.

(3) Turning a Trial into a Spectacle

The third area of concern relates to the spectacle-like elements that have been introduced by the Government of Israel and/or the prosecution into the proceedings, which have been reported by some of the Western press as the "show trial" elements of the Demjanjuk trial.  None of these would be countenanced in any criminal trial in any Western democratic country for the simple reason that these elements affect the ability of the defendant to obtain a fair trial.

I was very surprised and concerned to see a minister of the Government appear at the trial for each of the three days that I was there, with the attendant glare of television lights and reporters right in the courtroom (I was even filmed with, I believe, the Minister of Culture on one of those days).  Secondly, the constant bussing in and out of the trial of school children, the regular commotion caused by the entrance of one group of school kids and the exit of another, and the continuous live television and radio coverage of the trial (surprisingly in a case where the court had ruled that eyewitnesses should be excluded from the courtroom for the evidence of any other eyewitness) all have had the effect of removing the decorum which befits an extremely serious case with extremely serious accusations and grave consequences.

But most troublesome is the climate that is created by these elements together, a climate that is highly suggestive of guilt, a climate not conducive to a fair hearing for the accused, and a climate that puts an almost unbearable burden on the three judges who are hearing the case for how can they bring forward a verdict of "not guilty" where, in the eyes of the thousands of school children who will have visited the trial, and whose opinions and statements are heard in the hallways and on television, there is no question that "this is Ivan the Terrible."

(4) Admitting Hearsay Evidence

The fourth element that gave me grave concern about the even-handedness of the trial was the ruling made by the trial judges on the last day of my attendance at the trial where they accepted hearsay evidence, both as to the depositions of deceased eyewitnesses and as to oral statements which these deceased eyewitnesses allegedly made to the witness Radivker, an 82-year-old lady investigator attached to the Israeli police.  This major deviation from the fundamental legal principles of evidence accepted by all Western democracies is doubly troublesome because the depositions and the hearsay oral statements made by the deceased persons to Mrs. Radivker went to the very issue of identification of the defendant.  Such evidence would never have been permitted in any British, Canadian or American court because the defendant's counsel cannot cross-examine a dead witness, nor the circumstances around which the dead witness may or may not have identified the defendant, nor the reliability of the witness's recollection or identification, nor any other aspects of his evidence.

The court permitted this hearsay evidence, both as to the depositions and the alleged oral statements, after lengthy argument by the prosecution and the defence, on the basis of section 15 of the Nazis and Nazi Collaborators (Punishment) Law of Israel which states as follows:

15(a)  In an action for an offence under this law, the court may deviate from the rules of evidence if it is satisfied that this will promote the ascertainment of the truth and the just handling of the case.

I have serious doubts as to whether the evidence "promoted the ascertainment of the truth," or "the just handling of the case," particularly since the reliability of some of these same witnesses when they were alive was apparently strongly questioned by the Florida court in the Fedorenko case, where the judge dismissed the evidence of some of those witnesses as "theatrical" and "clearly not credible" and where the witness Turowski, for example, (whose deposition was now being tendered in the Israeli court) when asked to identify Fedorenko in the American trial, pointed to a middle-aged spectator in the back of the courtroom.

(5) A Perfidious Trick

The fifth troublesome element relates to the evidence of Chief Superintendent Kaplan of the Israeli police, and the ease with which the court accepted the evidence of a perfidious trick played by the Israeli police on the defendant while in Israeli prison, in the hope of obtaining incriminating evidence and admissions from him.

Chief Superintendent Kaplan was called by the prosecution on my second day at the trial, and very forthrightly gave evidence that he impersonated a warden in the prison where John Demjanjuk was being held before the trial in Israel, and that he purposely tried to "befriend" the defendant and to "induce" (or seduce) the defendant into trusting him and giving him secret mail to his family and friends which Kaplan promised the defendant would go out "uncensored" and without the knowledge of the authorities.  Demjanjuk believed the subterfuge, and gave Kaplan a series of three letters, which Kaplan immediately turned over to the investigative team, as well as confided in him about his whereabouts during the Second World War.  (None of the statements or letters, by the way, contained any damaging or incriminating statements.)

While the technique of placing undercover police officers into a prison is accepted in some Western jurisdictions and any voluntary statements made by a prisoner to a cellmate (or undercover officer) can be accepted as evidence, here the investigator actively seduced the defendant with promises and statements designed to extract his innermost thoughts and uncensored letters in order that he incriminate himself (which, it turned out, he did not) all of this while the defendant was awaiting trial, and without the knowledge of the defendant's attorney.

The prosecution clearly infringed the defendant's right to counsel and his right to remain silent; and yet that evidence was accepted by the Israeli court without any outward surprise, concern or raised eyebrow.

The above five areas concern me not because I hold any view of Demjanjuk's guilt or innocence I do not but because any defendant, indeed any common criminal, is entitled to the basic elements of a fair trial and due process.  But in this case particularly the above deviations from basically accepted norms and principles of Western law are profoundly distressing because of the enormity of the crime alleged to have been committed, to say nothing of the penalty of a man's life hanging on the outcome of the trial.

They are also of great concern because of two other very important ramifications.  Israel is dealing in this case with the enormity of the Holocaust an event too great and too important a tragedy in the history of the Jewish nation to be demeaned by a flawed legal process and I would have thought that Israel would be extremely mindful of the fact that as Israel judges John Demjanjuk, so the world will judge Israel and the Holocaust itself.  And, secondly, scrupulous adherence to a fair criminal process for Demjanjuk is particularly important because the fairness of the trial afforded him is the measure of the slender thread that holds lawful societies above unlawful, and distinguishes "justice" meted out by an even-handed and judicious body of men from "vengeance" sought by a vigilante mob.  The price is too high and the cost is too great to do otherwise than be scrupulously fair.

The trial of John Demjanjuk has still a long way to go; the prosecution's case is not even half put in.  The trial was adjourned for two weeks during the Passover/Easter break.  There is still time enough to correct some of the matters raised that affect the fairness and due process of the trial and for that reason, the Ukrainian Canadian Advocates Society and the Ukrainian American Bar Association have sent a joint letter and memorandum to the prime minister of Israel, the minister of justice, and the chief justice of the supreme court for their consideration.  Some of the damage that has been done in the five areas cannot be undone, but it is never too late to correct the course of the proceedings yet to come.  Although most Israelis consider their judicial system to be "above reproach," that certainly was not the impression left with me or my other legal colleagues.  Israel will need to return to a strict and scrupulous adherence to well recognized Western norms and principles of justice, fairness and due process in the trial of this defendant, if it is to hope for the support and acceptance of the ultimate verdict by the rest of the Western world in this important trial.