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UABA III   Ukrainian Weekly   01-Jul-1990   The five Treblinka survivors


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The strange case of John Demjanjuk

Deceit of U.S. Justice Department could cause death of innocent man


In this issueThe Ukrainian Weekly is publishing the final installment of a statement by the Ukrainian American Bar Association regarding the John Demjanjuk case.  The UABA statement was sent, prior to the beginning on May 14 of the presentation of Mr. Demjanjuk's appeal to the Supreme Court of Israel, to each member of the Israeli Knesset, each U.S. senator and representative and to over 600 members of the media worldwide.

The authors of this UABA statement are Michael Waris Jr., chairman of the board of governors, Andrew Fylypovych, president, and Lidia Boyduy Shandor, former recording secretary.

CONCLUSION

To best appreciate how little weight should be accorded the testimony of the five Treblinka survivors who testified that they recognized, after 35 years, that John Demjanjuk was the man they had known at Treblinka as "Ivan the Terrible," one must first understand how these witnesses were located.  Important in this regard is the early Soviet connection with this case and just how the Soviets "helped" U.S. and Israeli authorities to finger a man whom they could prosecute as "Ivan the Terrible."

The way in which Mr. Demjanjuk's name and photo became identified with Nazi war criminals in the U.S. should have put a person even casually familiar with the history of World War II in Eastern Europe on notice that Soviet information regarding Ukrainians might be unreliable.  In the mid-1970s, Mr. Demjanjuk's name first appeared in a Soviet Ukrainian newspaper article which accused Mr. Demjanjuk of being a guard at a Nazi death camp in Sobibor, Poland (not Treblinka).

At that time, today's moderating influence of glasnost on the attacks against emigres and anti-Soviet nationalists was unimaginable.  Ukrainian nationalists in the Soviet Union were still being sent to psychiatric hospitals and Siberian labor camps for punishment.  The Soviet press regularly portrayed Ukrainians living outside of the USSR as right-wing extremists, Nazi collaborators and fascists.  Soviet sympathizers in the U.S. were doing their best to pass this kind of information on to persons who might believe this propaganda as a fact.

A dramatic example of this Soviet-initiated defamation of Ukrainian Americans is the case of Ivan Stebelskyi, the leader of the Ukrainian committee for the establishment of the Babi Yar monument in Denver.  At the time the monument commemorating the mass slaughter and burial of both Jews and Ukrainians was in the planning stages by these two groups in Denver, the Soviets published charges that Mr. Stebelskyi had been a member of the SS Division Brandenburg, the Roland and Nachtigal detachments, and had collaborated in killing Jews.  The Jewish members of the committee for the establishment of the monument were understandably in an uproar.

Mr. Stebelskyi declared his innocence.  This Soviet mis-identification was ultimately revealed, but not without the help of an Israeli Jew who was able to locate witnesses who stated the accused was not who the Soviets said he was.

The Soviets' mistake in promoting this type of propaganda against Ukrainian emigre Stebelskyi was choosing someone to accuse who had solid social and political connections to defend himself, quite unlike Mr. Demjanjuk.

The Katyn Forest massacre is another powerful example of the use by the Soviets of outright lies and sweeping disinformation as regular weapons in their unceasing propaganda warfare against their "enemies" worldwide be they nations, ethnic groups or mere individuals who had been identified by Stalin or his KGB, regardless of how falsely, as traitors, deserters and other enemies of the motherland.

For 50 years the Soviets had maintained that the Nazis had murdered 15,000 Polish Army officers in the Katyn Forest in 1940.  Just a few weeks ago, the Soviets, because it now proved to be politically expedient for them to do so, admitted that this horrible deed was carried out by them at the direct orders of Stalin.

Mr. Demjanjuk is as direct a victim of this Soviet disinformation as were the 15,000 murdered Polish officers.  In his case, information contained in the Soviet newspaper article falsely accusing Mr. Demjanjuk of being a Sobibor guard, mentioned above, was given by a Soviet Propagandist in the U.S. to the Immigration and Naturalization Service (INS) with the advice that such a person and other Ukrainian emigres lied on their immigration papers and were really Nazi war criminals hiding out in the U.S.  Thus, Mr. Demjanjuk's photo was then extracted from the INS immigration records.

The INS sent the Israeli police, Nazi Crime Investigation Division (the Justice Department's OSI had not yet been formed in the U.S.), a copy of Mr. Demjanjuk's photo.  The first attempt to get persons to identify, and subsequently testify against, Mr. Demjanjuk was made in Israel by an advertisement which stated:

The Nazi Crime Investigation Division is conducting an investigation against the Ukrainians Ivan Demjanjuk and Fedor Fedorenko.  Survivors of Sobibor and Treblinka are requested to report to the Israel Police Headquarters.

No survivor had positively identified Mr. Demjanjuk's photo as a guard from Sobibor as claimed in the Soviet-supplied article.  However, one Treblinka survivor, who failed at the time to identify the photo of Mr. Fedorenko, the person suspected of being a Treblinka guard, apparently misunderstood the ambiguous wording of the advertisement, which could be interpreted to mean that either person could be at either camp.  In fact, there was a guard called "Ivan" at Treblinka, reputed to be a Ukrainian, and known to be the most reprehensible of all guards at the camp, the man referred to as "Ivan the Terrible."

Because the advertisement stated it was looking for persons to identify an "Ivan" as well as a "Fedor," this Treblinka survivor logically assumed he was to identify the "Ivan" of Treblinka.  He chose the largest picture in the photospread as "Ivan."  The picture was of John Demjanjuk.

Significantly, precisely this same type of extremely suggestive identification methodology was employed by the Israelis in the Walus case, which led to its criticism by Allan Ryan in his book, "Quiet Neighbors," pp. 216-217.

We never placed advertisements in Jewish newspapers looking for survivors of a certain place, we never disclosed the name of the suspect....  Had the original accusations against Walus been made at a time when OSI existed, they never would have seen a courtroom.  [Emphasis added]

And yet despite these statements, Mr. Ryan forged ahead against Mr. Demjanjuk.

The subsequent identifications of Mr. Demjanjuk as "Ivan the Terrible" were to come only after there was ample opportunity for the original identifying witness to discuss his identification with other Treblinka survivors.

Amazingly enough, one Treblinka survivor, who, on the first day he examined the photospread, did not identify or ever suggest some familiarity with the picture of Mr. Demjanjuk, came back the day after the original identifying witness made his "Ivan" identification and said he now wished to identify "Ivan" of Treblinka and pointed to the largest picture in the photospread with great certainty in making his identification!

Space does not permit us to go into further detail regarding the many violations of due process which were committed by the Israelis in their photo identification efforts with respect to "Ivan the Terrible" of Treblinka.  Prof. William Wagenaar, an expert witness for the defense in the Israeli trial, in his treatise "Identifying Ivan: A case Study in Legal Psychology" (Harvard University Press, 1988), has carefully researched the identification process in the Demjanjuk case from beginning to end and has reached the conclusion that the entire exercise was a farce.

Thus, anyone, be he newsperson, seeker-of-justice, or one simply wishing to know the true facts in this case must read Prof. Wagenaar's book to understand the number and seriousness of the violations of accepted identification principles which have been committed by both the U.S. and the Israeli prosecution in this case.

Although we cannot devote further space to the very important specifics of the identification process after all, the eyewitness testimony was the only "evidence" which placed John Demjanjuk in Treblinka we feel it necessary to compare this aspect of the Demjanjuk case with that of the Fedorenko and Walus cases to highlight certain major similarities and to note that in both of those cases very similar eyewitness testimony of Holocaust survivors was rejected by the courts (and also by the Department of Justice itself in Walus) as being unreliable.

In U.S. v. Fedorenko, 455 F.Supp. 893 (1978), an American citizen of Ukrainian origin admitted that he had been a Treblinka guard and that he had lied about that fact when seeking his American citizenship.  The only part of that case relevant to the Demjanjuk case involved survivors who testified they had seen Fedorenko engage in various atrocities.  The U.S. District Court judge held in Mr. Fedorenko's favor.

The crux of the judge's decision was his refusal to accept the identification made by eyewitnesses from photographs and their subsequent testimony in court.  In essence, the judge said that after the passage of 35 years and the circumstances surrounding the eye-witness identifications their testimony simply was not believable.

The Fedorenko case is particularly relevant to the Demjanjuk case because:

(1) all of the eyewitnesses who testified in Fedorenko were used by the prosecution in the Demjanjuk case;

(2) these same eyewitnesses were initially exposed and led through the same photospreads by the same Israeli investigators; and

(3) these eyewitnesses communicated and travelled extensively together, thus fortifying each other's positions and recollections all in strict violation of accepted identification procedures.

Finally, the following analysis in the Fedorenko case of fundamental legal principles based on U.S. Supreme Court decisions further highlights the extreme frailty of the eyewitness evidence in the Demjanjuk cases, both in the U.S. and in Israel.  The judge in Fedorenko, citing the U.S. Supreme Court decision in Simmons v. United States, 390 U.S. 377 (1968), stated that:

There is a danger of identification of a photograph in a criminal case even under the best of circumstances.  This danger is greatly increased when the photograph is placed in a photospread in such a manner that the witness's attention is drawn to it because of its size, color, placement, or other distinguishing mark.  [455 F.Supp. 893, 905; emphasis added]

Continuing, the judge in Fedorenko said that the Supreme Court further held "that a conviction based on an in-court identification following a pre-trial identification would not stand if the photospread was so unduly suggestive as to foster 'a very substantial likelihood of irreparable mis-identification.'"

One other very important point made by the Fedorenko court needs comment.  The judge emphasized that the longer the time that has elapsed between the event and the confrontation, "The threshold of what suggestibility becomes impermissible must necessarily be lowered."  The court also pointed out in Fedorenko that the time interval was 35 years, rather than a few days or weeks, as is typical in the usual criminal case.

The court further highlighted the point that it could not find a single decision with a time lag of as many years' duration as in Fedorenko.  Under such circumstances, the court concluded that "the photospreads should have been as clinically impartial as humanly possible to construct."  The court ultimately found that photospreads put together and used by the Israelis were as unacceptable as Prof. Wagenaar had found those in the Demjanjuk case to be.

The Fedorenko decision was reversed on appeal on unrelated issues.  The reasoning of the trial court dealing with the unacceptability of the eyewitness testimony was unassailed and remains good law today.

The case of United States v. Walus, 616 F.2d 283 (1980), reversing 453 F.Supp. 699 (1978), is so similar to that of Mr. Demjanjuk as to warrant especially close attention.  Both cases should end in the same fashion: All charges against John Demjanjuk should be dropped as they were against Walus.  Both are innocent men who got caught in a cauldron of blind hatred justifiably simmering among the innocent victims of the Nazis.

Almost 18 years ago, Frank Walus was accused by the U.S. Department of Justice as being a Nazi Gestapo and SS officer, so notorious for his cruelty to Polish Jews as to have become known as the "Butcher of Kielce."  Mr. Walus maintained that rather than being in Poland, he was 800 miles away working as a forced laborer on a German farm.  He had documents and witnesses to support him.

On the other and, the Justice Department had 12 eyewitnesses to his Nazi brutality.  "I will never forget that face," one such witness said.  "This is the face who killed an innocent man whose only crime was the fact that he was a Jew."  "Here," said another witness, standing before Walus in the Chicago District courtroom, "sits the murderer."

Another witness testified that after a woman, accompanied by her two daughters, refused to disrobe upon Walus' order, Walus shot the woman in the back of her head and just as quickly killed the two girls.  Testimony of similar character was related by all the other Holocaust survivor eyewitnesses.

In Mr. Walus' defense, five German farmers took the stand and German health insurance documents and photographs showing Mr. Walus in Germany with the farmers who testified for him were offered in his defense.

The District Court judge concluded that Mr. Walus was guilty as charged and stripped him of his citizenship. The judge found discrepancies between the testimony of the Holocaust eyewitnesses and the German farmers, noting that the latter were all members of the Nazi party.  He discounted the documents as probably being false because they had been recorded by Nazi functionaries.

Mr. Walus appealed to the U.S. Court of Appeals for the Seventh Circuit.  During the 18-month appeal period, Mr. Walus' attorneys discovered significant new evidence:

1.  Five Poles who, like Mr. Walus, had been forced laborers in Germany, swore in depositions that they knew Walus in Germany throughout the war.

2.  A French prisoner-of-war made a similar statement.

3.  A German Roman Catholic priest confirmed that Walus had been a forced German laborer.

4.  Further documentation was presented to the appellate court verifying Mr. Walus' claims.

On February 13, 1980, the appeals court granted Mr. Walus a new trial, stating that the "new" evidence "would almost certainly compel a different result if a new trial were held."

The Justice Department's OSI director, Mr. Ryan, decided that a new trial was unnecessary and the United States dropped all charges against Mr. Walus.

Can a careful and honest reading of the following statements made by Mr. Ryan and other Justice Department attorneys involved in the Walus case, as recorded by reporter Michael Arndt in the Chicago Tribune of December 2, 1984, lead to any conclusion except that precisely the same reasoning dictates that John Demjanjuk be completely exonerated?

    Allan Ryan stated:
    "I don't think the case should have ever been brought to court.  It was clear that the evidence just isn't there."
...
    "We made a mistake," says Thomas Sullivan, the former U.S. Attorney in Chicago who put an end to the prosecution [of Walus].  "My feelings are that he was innocent."

Mr. Ryan made this additional comment, which he consistently should apply with equal vigor to the situation confronting Mr. Demjanjuk:

I think the [prosecution witnesses] were honest people.  I have no reason to think they were perjuring themselves, perjury meaning, of course, intentionally lying.  I think they probably did have somebody in mind.  But Mr. Walus was not the person."  [Emphasis added]

Finally, Assistant U.S. Attorney John Gubbins, who had handled the Walus case for the government in Chicago pending appeal, made the following statement of principle and reason which should guide the Supreme Court of Israel when it evaluates the eyewitness testimony of the Treblinka survivors:

As it wound up, the trial was based on eyewitness testimony.  But the memories were 35 years old.  If anything, the Walus case showed that eyewitness testimony that old and related to that kind of conduct is not something that works well in our system of justice."  [Emphasis added]

We believe that this discussion clearly shows that John Demjanjuk is an innocent victim of a fraud perpetrated by overzealous United States prosecutors.  You are asked to do whatever is in your power to urge the Supreme Court of Israel to overturn his conviction and to set him free.  Let him return to the United States to rejoin his family and to try and rebuild 12 shattered years.

Finally, you are urged to press for a full and detailed investigation by U.S. authorities of this incredibly inhuman and, we submit, completely unconstitutional prosecution.


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