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8/6/2019 00-00-01 93-09-13 Kozinski, A: Sanhendrin II, The New Republic, Sept 13, 1993, pp 16-18

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g ua rd s b ef or e him. H e p oin te d to Demjanjuk's Trawnikip ho to a nd positively identified it as Ivan Marshenko, theone wh o was known as h'an th e Terrible.

Obviously we a re dea ling he re with statements drawnfrom memories decades old. B ut t he number of them,their certainty, spontaneity and sources-persons whoha d ample opportunity to observe Ivan the Terrible atclose quarters-point s trongly to t he c on cl us io n t ha tDemjanjuk h ad i nd ee d o pe ra te d th e gas chamber atTreblinka.

Wat t he n t ro ub le d t he court? Long a ft er t he

trial, documents were obtained from theKGB'S files that conta ined statements of o the rTreblinka guards referring to th e operator of

th e gas chamber as Marchenko; some gave a physica ldescription t ha t d id no t fit Demjanjuk; one noted thatthis person was known as Ivan th e Terrible. Th e IsraeliSupreme Court recognized that these documents werefar less reliable than the proof t he a tt or ne v g en er aloffered. Th e statements w er e t ak en bv th e KGB, neverfamous fo r adhering to Western n o t i o ~ sof proceduralregularity; t he dec la rant s were no t subject to crossexamination or impeachment ; there was no wav ofknowing how these statements were produced orwhether they were authentic, making it hard "to ruleou t theoretical possibilities of tampering with th e evidence in full or in part ." I t is highly doubtful an America n court would have admit ted the statements ha d thevbeen presented at trial, much less on appeal. '

Even i f t he s ta tement s were admitted an d believed,th e Israeli Supreme Court recognized that nothing inthem foreclosed th e possibilitv of successive operatorsof th e gas chamber named Ivan-one D e n ~ a n j u k ,theother Marchenko. or was it ou t of t he q ue st io n t ha tDemjanjuk, for whatever reason, called himselfMarchenko at the time. Th e c ou rt n ot ed t ha t t he state

m e nt o f Dudek, the tavern-keeper, supports this hypothesis, as d oes t he fact that Demjanjuk falsely listed hismother's m ai de n n am e as Marchenko i n his C.S. visaapplication. T he c ou rt nevertheless fel t i t could no t dismiss th e KGB statements an d could not come up with asatisfactory explanation fo r their existence. These statements, the court concluded, established a reasonabledoubt about whether Demjanjuk was h'an th e Terrible.

In reaching this conclusion, the court adopted a stand ar d m uc h m or e rigorous t han tha t normally employedin t he U ni te d States. An appellate court here wouldlook at th e evidence in th e l ight mos t favorable to theprosecution an d ask itself whether a rational jury (Quidhave convicted; i t would reverse on Iv if th e evidenceabsolutely required acquittal. This sta;1dard recognizesthat not all th e evidence presented in a criminal trialwill fit into a neat, consistent pat tern . In figuring outwhat happened, juries often discard pieces of the puzzlethat don' t match u p, s uc h as testimony from the defendant 's mother that they were home together watchingT.V. on th e n ig ht o f th e c rime . Such evidence certainlycan create a reasonable doubt, bu t it ca n also berejected as too improbable.

""'hat th e Israeli Supreme Court looked fo r h e r e -and di d not find-was "an additional layer of evidence,"something to explain away or refute th e statements fromth e KGB files. Because t he s ta te me nt s c am e into therecord with none of t he t ethe rs tha t norma lly tie proofto the real world.....:....no opportunity to cross-examine, nop ro of o f authenticity, nothing at all that would makethem reliable enough to b e a dm it te d under ordinarycircumstances-it became virtually impossible fo r th eprosecution to deal with them. Their very unreliability

made them immune to attack.Subtly woven into the common law woof of th e Israeli

Court 's opinion ar e the warp threads of talmudic law.Th e willingness to admit any evidence-even that ofhighly doubtful reliability-so long as it helps th eaccused, while demanding that the prosecut ion comeup with a concrete, rational explanation to dissipate thedoubt so created, is far more consistent with th e processes of t he Sanhedr in than those of th e common law.

The Israeli Court 's decision to exonerate Demjanjuk of th e Ivan the Terr ible charge may alsohave been based on practical considerations.Israel does not have a death penalty for crimes

o th e r t ha n those relating to the Holocaust or treason,an d th e only per son execu ted in t he n at io n' s historywas Adolf Eichmann more than thi rty years ago. Event hen, the re was opposition to the execution. T he c ou rtmight have thought i t wise to avoid th e upheaval thatwould su rround ano the r death sentence.

More puzzling is t he cour t 's decision to let Demjanju k walk away a free man. For, while th e opinion findsreasonable doubt that Demjanjuk was Ivan the Terrible,it leaves no doubt at all that he was a guard in a Nazideath c am p a nd , as such, played an essential role insnuffing ou t hundreds of thousands of Jewish lives.

The story in t he cour t 's opinion is a fascinating one,

not well kn own even to those familiar with th e Holocaust. As the Germans marched east through Poland,Hungary, Romania an d the Soviet Union, they foundthemselves in control of th e largeJewish populations inthose areas . At f ir st they used Einsatzgruppen 5.5. units,whose business it was to round up Jews, shoot them an db ur y t he m i n mass graves. Impatient with the piecemealnature of this process, the Germans deployed OperationReinhard. "Operat ion Reinhard was designed fo r on ep ur po se a nd on e purpose only," th e S up re me C o ur tnoted, "namely in order to m ak e t he physical destruction quicker and more efficient" by rounding upJews forextermination in Treblinka, Sobibor an d Lodz. Becausethe Germans could spare only a few people fo r this task,they recruited large numbers of helpers from among theSoviet prisoners of war, a small fraction of whom volunteered to serve in the 5.5. as Wachmanner (prison guards).

As related by Yakob Engelhardt, himself a Wachmann,the Russian prisoners of war were not forced to serve inth e 5.5. uni t - they all volunteered and were sent to ac am p a t Trawniki to be trained. As part of this training,Engelhardt recounted, mass executions were carriedout to teach th e Wachmanner "to execute an d extermi-

SEPTEMBER 13. 1993 T H E N E W REPUBLIC 17

guards be fo re him. H e p oin te d to Demjanjuk's Trawnikip ho to a nd positively identified it as Ivan Marshenko, theone wh o was known as h'an th e Terrible.

Obviously we are deal ing here with statements drawnf rom memor ie s decades old. B ut t he number of them,their certainty, spontaneity and sources-persons whohad ample oppor tun ity to observe Ivan the Terrible atclose quarters-point strongly to t he c on cl us io n t ha tDemjanjuk ha d indeed operated the gas chamber atTreblinka.

Wat t he n t ro ub le d t he court? Long after th e

trial, documents were obtained from theKGB'S files that conta ined statements of o the rTreblinka guards referring to th e operator of

th e gas chamber as Marchenko; some gave a physica ldescr ip tion tha t d id no t fit Demjanjuk; on e noted thatthis person was known as Ivan th e Terrible. Th e IsraeliSupreme Court recognized that these documents werefar less reliable than the proof t he a tt or ne y g en er aloffered. Th e statements were taken by th e I\.(;B, neverfamous for adhering to Western notions of proceduralregularity; t he dec la rant s were no t subject to crossexamination or impeachment ; there was no way ofknowing how these statements were produced orwhether they were authent ic , making it hard "to ruleou t theoretical possibilities of tampering with th e evidence in full or in part." It is highly doubtful an America n court would have admitted th e statements ha d theybeen presented at trial, much less on appeal. '

Even i f t he s ta tement s were admitted an d believed,th e Israeli Supreme Cour t recognized that nothing inthem foreclosed th e possibility of successive operatorsof th e gas chamber named Ivan-one Demjanjuk, theother Marchenko. lo r was it ou t of th e question thatDemjanjuk, for whatever reason, called himselfMarchenko at the time. Th e cour t no ted that the state

m e nt o f Dudek, th e tavern-keeper, supports this hypothesis, as d oes t he fact that Demjanjuk falsely listed hismother's m ai de n n am e as Marchenko in his C .S. visaapplication. T he c ou rt nevertheless fel t i t could no t dismiss th e KGB statements an d could no t come up with asatisfactory explanation for their existence. These statements, the court concluded, established a reasonabledoubt about whether Demjanjuk was h'an th e Terrible.

In reaching this conclusion, the court adopted a standard m uc h m or e rigorous than that normal ly employedin the United States. An appellate c ou rt h er e wouldlook at th e evidence in the l ight mos t favorable to theprosecution an d ask itself whether a rational jury couldhave convicted; i t would r ever se on lv i f th e evidenceabsolutely required acquittal. This s t a ~ 1 d a r drecognizesthat not all the evidence presented in a criminal trialwill fit into a neat, consistent pattern. In figuring outwhat happened, juries often discard pieces of the puzzlethat don' t match up , such as testimony from the defendant 's m o th er t ha t they were home together watchingT.V. on the night of th e c rime . Such evidence certainlvcan create a reasonable dou bt , bu t it ca n also berejected as too improbable.

\!\-'hat the Israeli Supreme Cour t looked fo r h e r e -and di d not f ind-was "an additional layer of evidence,"something to explain away or refute the statements fromth e KGB files. Because t he s ta te me nt s c am e into therecord with none of t he t ethe rs that normally tie proofto th e real world...:....no opportunity to cross-examine, nop ro of o f authenticity, nothing at all that would makethem reliable enough to b e a dm it te d under ordinarycircumstances-it became virtually impossible fo r th eprosecution to deal with them. Their very unreliability

m ad e t he m i mm un e to attack.Subtly woven i nto the common law woof of th e Israeli

Court 's opinion ar e the warp threads of talmudic law.Th e willingness to admit any evidence-even that ofhighly doubtful reliability-so long as it helps th eaccused, while demanding t hat the p rosecu tion comeup with a concrete, rational explanation to dissipate thedoubt so created, is far more consistent with th e processes of the Sanhedr in than those of th e common law.

The Israeli Court 's decision to exonerate Demjanjuk of th e Ivan the Terr ible charge may alsohave b ee n b as ed on practical considerations.Israel does not have a death penalty for c rimes

o th e r t ha n those relating to the Holocaust or treason,an d th e only per son execu ted in the nation's historywas Adolf Eichmann more than thi rty years ago. Event hen, there was opposition to the execution. T he c ou rtmight have thought i t wise to avoid th e upheaval thatwould su rround ano the r death sentence.

More puzzling is t he cour t' s decision to let Demjanjuk walk away a free man. For, while th e opinion findsreasonable doubt that Demjanjuk was Ivan th e Terrible,it leaves n o d ou bt at all that he was a guard in a Nazideath c am p a nd , as such, played an essential role insnuffing ou t hundreds of thousands of Jewish lives.

The story in the court's opinion is a fascinating one,

not well kn own even to those familiar with th e Holocaust. As t he Germans marched east through Poland,Hungary, Romania an d th e Soviet Union, they foundthemselves in control of th e large Jewish populations inthose areas . At f ir st they used Einsatzgruppen 5.5. units,whose business it was to round up Jews, shoot them an dbury them in mass graves. Impatient with th e piecemealnature of this process, the Germans deployed OperationReinhard. "Opera tion Re inhard was designed fo r on epurpose an d on e purpose only," th e Supreme Courtnoted, "namely in order to m ak e t he physical destruction quicker an d more efficient" by rounding upJews forextermination in Treblinka, Sobibor an d Lodz. Becausethe Germans could spare only a few people fo r this task,they recruited large numbers of helpers from among theSoviet prisoners of war, a small fraction of whom volunteered to serve in the 5.5. as Wachmanner (prison guards).

As related by Yakob Engelhardt, himself a Wachmann,the Russian prisoners of war were not forced to serve inth e 5.5. uni t - they all volunteered and were sent to ac am p a t Trawniki to be trained. As part of this training,Engelhardt recounted, mass executions were carriedout to teach th e Wachmanner "to execute an d extermi-

SEPTEMBER 13. 1993 T H E N E W REPUBLIC 17

8/6/2019 00-00-01 93-09-13 Kozinski, A: Sanhendrin II, The New Republic, Sept 13, 1993, pp 16-18

3/3roduced with permission of the copyright owner. Further reproduction prohibited without permission.

nate members of th e Jewish race." According to anotherWachmann, Dimitri Borodin, "[T]he procedures in th ecamp were such that no t one of the Wachmanner servingthere could have avoided taking part."

Th e Israeli Supreme Court dryly su mm ed u p th efunction of th e Wachmanner.

The Trawniki unit was se t up in order to ai d th e objective ofmurder, a nd n o th i ng else. Th e Trawniki was an organization whose purpose was to carry ou t actions of th e Naziadministration . . . that were directed against persecuted

persons.. " Its assignment was monol ith ic , namely aidingt h e p er so n ne l of th e '5 .5. ' of t he r an k to w hi ch t he y ha dbeen a ss ig ne d ( so m e f ro m th e Exte rminat ion Unit 1 ~ 4 )toround u p t he Jews from th e cities, towns an d \'illages an d tot r anspor t them to t h ei r d ea th , to aid in carrying ou t them u rd er a nd to c ov er u p, a ft er t he event, all traces of th emurder. This was, therefore, a unit fo r aiding murder, in th eplain meaning of th e expression.

"'-'hatever doubts th e court might haw ha d aboutwhether Demjanjuk was Ivan th e Terrible, it ha d noneabout th e fact t ha t he volunteered and sen' ed as a ;\TaziWachmann in th e Trawniki unit. The evidence on thisscore included a cer ti fica te from Trawniki bearingDemjanjuk's picture an d his exact per sona l information. There were also German documents that referredto Wachmann Demjanjuk an d mentioned his date an dplace of birth . Statements of another Warhmamz by thename of Denilchenko, both i n 1949 an d again in 1979,identified Demjanjuk as a Wachmann who served withhi m at Sobibor. Demjanjuk's Trawniki certificate alsoreflects that he served at Sobibor, as do th e Germanorders of March 1943 posting th e Trawniki unit. Thecourt considered Demjanjuk's contention that th e certificates-including t ho se b ea ri ng his photographwere forger ie s; in light of th e expert testimony an dother corroborating evidence, it concluded that thelikelihood of this was "reduced to zero."

The court was u'oubled, however, that th e trial ha d

dealt primarily with th e Ivan the Terr ible charge, whilethe Wachmann charge was somewhat of an afterthought.I t recognized that Demjanjuk "brought witnesses withwhose help h e t ri ed to refute any connection betweenhimself an d th e service in th e Trawniki unit," but conc lu de d t ha t Demjanjuk di d no t haw a "reasonableopportunity of defending himself properly, in th e fullmeaning of th e word." To give D em ja uj uk s uc h a nopportunity "would mean today, de jacto, s ta rt ing theproceedings again, i.e., further continuation of the proc ee di ngs b ey on d t he proper measure." Finding thisunreasonable, the court simply terminated the case an dlet Demjanjuk go.

Th e court's reasoning on this point is no t clear. Adefendant is surely prejudiced when he is prosecutedfo r a crime committed decades earlier; one might wellunderstand if th e c ou rt h ad said Demjanjuk shouldn'thave been tried at all because human memory couldn' tbe trusted to go back that far. But the court clearly cons idered the testimony of th e eyewitnesses reliable, an dit's hard to believe that a few years beyond the decadesthat ha d already passed would make the difference. Thecourt might also have precluded a retrial if the prosecu-

18 THE NEW REPUBLIC SEPTEMBER 13, 1993

tion ha d caused th e delay. Bu t it n ot ed t ha t "the trialwas drawn ou t almost entirely because of numerousapplications fo r postponements by t he de fe ns e c ou nsel." The court d oe s r ef er to precedent s that cautionagainst a ret rial where there is "a shadow of suspicion"th at th e accused's right to defend himself has beenimpaired by th e passage of time, bu t it doesn't explainin what conceivable way Demjanjuk was prejudiced.Once again , i t' s h ighly unl ikely a court i n this countrywould have r ej ec te d t he ve rdi ct on th e Wachmann

charge or, having done so, precluded a retrial simplybecause of th e passage of time, particularly w he re t hedefendant himself caused much of th e delay.

Wy th en did th e Israeli S up re me C ou rt se t

Demjanjuk free? I t may well have felt t hat theeyes of th e world were on it an d on Israel,an d that to r e try Demjanjuk on th e lesser

charge would be perceived as petty an d vindictive. TheCourt might also have felt there was no reason to singleou t Demjanjuk from among t he m an y t ho us an ds whoserved as concentration camp guards. Then again, itmight have thought that continuing to stir up memoriesof the Holocaust was no t entirely a kindness to th e survivors in th e waning years of their lives.

But i t is also possible t ha t t he court (consciously ornot) hewed to the great tradition of th e Sanhedrin, abodv whose concern with fai rnes s to on e accused ofc r i ~ e - e v e nthe most heinous of crimes-is unsurpas sed in human history. As Houston University LawSchool scholars Irene an d Yale Rosenberg explain in a1991 Michigan Law Review article, "That we sometimesfree guilty people is no t significant. "'-'hat is critical isp re se rv in g t he character of the c our t. " Justice, t heRosenbergs tell us, citing the brilliant sixteenth-centuryrabbi known as th e MaHaRaL of Prague,

is of such t ranscending importance that we demand perfection in its pUlsuit. Perfection, however, ca n come only fromGod . Because n o h um an coun ca n do what Go d does, th eJewish court does no t claim that it ca n ge t to t h e b ot to m oft he m at te r an d discern f ac tu al g ui lt . R at he r, Jewish lawembodies a more limited conception of th e function of th ecour ts , which is no t to determine th e absolute truth, bu tsimply to lift t he c lo u d of gu il t f rom th e accused . . . . [T] hecourt's main funct ion is to find t he de fendan t innocen t .

vVhy the emphasis on innocence from a judicial sys-tem that serves the severe God of th e Ol d Testament? I tis because guilt, th e Torah teaches, is God's prerogative,"The underlying assumption is that ultimately Go d willdeal appropr ia te ly with all wh o ar e guilty." A humancourt therefore should "s tick to its bus iness of findingmerit in th e defendant 's cause." That the Demjanjukcourt saw itself as the steward of this venerable traditionis revealed most clearly in th e last line of its opinion:"The matter is c losed-bu t no t complete," th e courtsaid. ' 'The complete truth is no t the prerogative of thehuman judge."

ALEX KOZI!\SI\1, a federal judge in California, is th e sonof Holocaust survivors.

nate members of th e Jewish race." According to anotherWachmann, Dimitri Borodin, "[T]he procedures in th ecamp were such that no t one of the Wachmannerservingt here cou ld have avoided taking part."

Th e Israeli S up re me C ou rt dryly su mm ed u p th efunction of th e W a c h m a n n e r ~

The Trawniki unit was set up in order to a id t he objective ofmurder, a nd n o th i ng else. Th e Trawniki was an organizat io n w ho se purpose was to carry ou t actions of th e Naziadministration . . . that were directed against persecuted

persons .. " Its assignment was monolithic, namely aidingt h e p er so n ne l of th e '5 .5. ' of t he r an k to w hi ch t he \' ha dbeen assigned (some from t he E xt er m in at io n U n it 1 ~ 4 )toround up th e Jews from th e cities, towns an d \illages an d tot r anspor t them to t hei r death , to aid in carrying ou t th em ur de r a nd to co\,er up , a ft er t he event, all t races of th emurder. This was, therefore, a unit for aiding murder, in th eplain meaning of th e expression.

'Whatever doubts th e court might have h ad a bo utwhether Demjanjuk was Ivan the Terr ible , it h ad n on eabout th e fact that he volunteered and sen' ed as a ;..J'aziWachmann in th e Trawniki unit. The evidence on thisscore included a cer ti fica te from Trawniki bearingDemjanjuk's pic ture an d his exact per sona l information. There were also German documents that referredto Wachmann Demjanjuk an d mentioned his date an dplace of birth. Statements of another Warhrnamz by thename of Denilchenko, both i n 1949 an d again in 1979,identified Demjanjuk as a Wachmann who served withhi m at Sobibor. Demjanjuk's Trawniki cert if icate alsoreflects that he s er ve d a t Sobibor, as do th e Germanorders of March 1943 posting th e Trawniki unit. Thecourt considered Demjanjuk's content ion that th e cert ificates-including those bearing his photographwere forgeries; in ligh t of the expert testimony an dother corroborating evidence, it concluded that thelikelihood of this was "reduced to zero."

The court was u'oubled, however, t ha t t he trial ha d

dealt primarily with th e Ivan the Terr ible charge, whilethe Wachmann charge was somewhat of an afterthought.It recognized that Demjanjuk "brought witnesses withwhose h elp h e tried to refute any connection betweenhimself an d th e service in th e Trawniki unit," bu t concluded that Demjanjuk d id no t have a "reasonableopportunity of defending himself properly, in th e fullmeaning of the word." To give De mj auj uk s uc h a nopportunity "would mean today, de jaclo, s ta rt ing theproceedings again, i.e., further continuation of the proc ee di ngs b ey on d t he proper measure." Finding thisunreasonable, th e court simply terminated the case an dlet Demjanjuk go.

Th e court's reasoning on this point is no t clear. Adefendant is surely prejudiced when he is prosecutedfo r a crime committed decades earlier; on e might wellunderstand if th e court ha d said Dernjanjuk shouldn',have been tried at all because human memory couldn' tbe t rust ed to go back that far. But th e court clearly cons idered the testimony of the eyewitnesses reliable, an dit's hard to believe that a few years beyond the decadesthat ha d already passed would make the difference. Thecourt might also have precluded a retrial i f t he prosecu-

18 THE NEW REPUBLIC SEPTEMBER 13, 1993

tion ha d caused th e delay. Bu t it noted that "the trialwas drawn ou t almost entirely because of numerousapplications fo r postponements by t he de fe ns e c ou nsel." The court d oe s r ef er to precedent s that cautionagainst a ret rial where there is "a shadow of suspicion"th at th e accused's right to defend h imse lf has beenimpaired by th e passage of time, bu t it doesn't explainin what conceivable way Demjanjuk was prejudiced.Once again , i t' s h ighly unl ikely a court in this countrywou ld have r ej ec te d t he ve rdi ct on th e Wachmann

charge or, having done so, precluded a retrial simplybecause of th e passage of time, particularly w he re t hedefendant himself caused much of th e delay.

Wy th en did th e Israeli S up re me C ou rt se t

Demjanjuk free? I t may well have felt that th eeyes of th e world were on it and on Israel,an d that to r e try Demjanjuk on th e lesser

charge would be perceived as petty an d vindictive. TheCourt might also have felt there was no reason to singleou t Demjanjuk from among th e many thousands wh oserved as concentra tion camp guards. Then again, itmight have thought that continuing to stir up memoriesof the Holocaust was no t entirely a kindness to th e survivors in the waning years of their lives.

But it is also possible t ha t t he court (consciously orn ot ) h ew ed to the great tradition of th e Sanhedrin, abodv whose concern with fai rnes s to on e accused ofc r i n ~ e - e v e nthe most heinous o f c ri m es -i s unsurpas sed in human history. As Houston University LawSchool scholars Irene an d Yale Rosenberg explain in a1991 Michigan Law Review article, "That we sometimesfree guilty people is no t significant. What is critical isp re se rv in g t he character of the c our t. " Justice, t heRosenbergs tell us, citing the brilliant sixteenth-centuryrabbi known as th e MaHaRaL of Prague,

isof such t ranscending importance that

wedemand perfec

tion in its pUI'suit. Perfection, howe\'er, ca n come on ly f romGod . Because n o h um an coun ca n do w ha t G od does, th eJewish court does no t c la im that it can ge t to t h e b ot to m oft he m at te r an d discern fac tual gui lt . Rather, Jewish lawembodies a more limited conception of th e function of th ecourts , which is no t to determine th e absolute trm h, b msimply to lift th e cloud of gu il t f rom the accused .. ,. [T] hecourt's main function is to find th e defendant innocent.

"\Thy the emphasis on innocence from a judicial sys-tem that serves the severe God of t he O ld Testament? Itis because guilt, t he Torah teaches, is God's prerogative."The underlying assumption is that ultimately Go d willdeal appropr ia te ly with all who ar e guilty." A humancourt therefore should "stick to its bus iness of findingmerit in th e defendant 's cause." That th e Demjanjukcourt saw itself as the steward of this venerable traditionis revealed most clearly in th e last line of its opinion:"The matter is c losed-bu t no t complete," th e courtsaid. ' 'The complete truth is no t the prerogative of thehuman judge."

ALEX KOZ!l\SKI, a federal judge in California, is th e sonof Holocaust survivors.