In a previous post I stated that the exculpatory evidence which ultimately led the Israeli Supreme Court to discharge the case against John Demjanjuk was discovered by the Israeli prosecution not the defense, but that I personally felt that it was discovered in the process of the prosecution's search for evidence as to Demjanjuk's service as an SS Wachman at Sobibor and Flossenbürg. You pointed out that this seemed self-contradictory, and posed the following three questions:
1. Why was the prosecution team in the Soviet Union looking for evidence re Sobibor and Flossenbuerg when Demjanjuk had already been convicted for putative service at Treblinka?
2. Did the prosecution team consider that the conviction was wrong, and that Demjanjuk had not been a guard at Treblinka, at the time they went looking for the evidence? If so, why?
3. Had the Treblinka accusation already been disproved at the time they were looking for new evidence? If so, on the basis of what evidence? And who found that evidence?
I suspect that we will never know what precisely was in the hearts and minds of all the players in this sorry story, but here is my understanding of the sequence of major relevant events which I hope will, considered as a whole, provide answers to your questions, or at least as to my views of such answers. As a caution, I should point out that I have not read Gitta Sereny's book, nor that of Yoram Sheftel (Demjanjuk's courageous Israeli lawyer), which I probably should at some point if I ever find the time. Nor is the following based on anything more than what I've been able to find on the internet plus my own recollection. So don't (and I'm certain you wouldn't anyway) take it as exhaustive or as Gospel down to the most minute detail. But I think its generally pretty accurate.
Sometime around 1975 a document of unknown provenance, but apparently derived from Soviet sources, circulated in the US Senate purporting to be a list of persons then in the US who had engaged in Nazi activities during WWII. The name and address of John Demjanjuk appeared on the list, with the indication that he had been an SS Guard (Wachman) first at the Sobibor, then at the Flossenbürg concentration camp.
In reviewing Demjanjuk's file the INS (Immigration and Naturalization Service) found that on one of his visa application documents he had stated that during the war he had been a farmer at Sobibor
. This raised a red flag and led the INS to investigate further. It sent a request to an Israeli agency engaged in the investigation of Nazi crimes (the INC) for any information it might have on Demjanjuk, as a guard at Sobibor, or on one Fiodor Federenko, who had also been identified on the list, as a guard at Treblinka. Photographs of the two men were included in the request. Interviews of Israeli survivors of the two camps were held and several survivors of Treblinka identified Demjanjuk as a guard there nick-named "Ivan the Terrible".
Statements of these witnesses were taken by the INC and sent to the INS, which commenced deportation proceedings against both men in 1977. Federenko admitted that he had been a guard at Triblinka, but despite his defense that he had never harmed a hair of anyone he was deported to the Soviet Union, where he was tried, found guilty of war crimes and shot.
Demjanjuk's trial was delayed until early 1981 for a number of reasons, one of which was the success of Elizabeth Holzman, a Congresswoman from a heavily Jewish district in Brooklyn, New York, in persuading the US Department of Justice in 1979 to set up and fund an Office of Special Investigations (OSI), the sole function of which was to investigate and bring deportation proceedings against possible perpetrators of war crimes living in the US. This new Office took over the Demjanjuk case (as well as over a dozen similar ones) from the INS and its deputy head, one Allan Ryan, went to Moscow to attempt to obtain better co-operation from the Soviets as to information relating to the personnel of the Polish concentration camps the records of which were in Soviet possesion. And despite the depth of the Cold War at that time, the Soviets agree to co-operate and did furnish the OSI with a wealth of information, although some of it suggested that there were serious questions as to Demjanjuk's service at Treblinka, while it seemed to confirm his duties as a Sobibor guard.
At this point of time it should be noted that there were no diplomatic relations between the Soviet and the Israeli governments, and the Soviet police and judicial officials refused to have any direct communications with their Israeli counterparts or to co-operate in any way with Israeli war crimes investigations.
Upon reviewing the mass of materials provided by the Soviets and derived from other sources as well, one of the OSI attorneys, a George Parker, became convinced that the evidence would not support a charge that Demjanjuk had been a Wachman at Triblinka, that certain documents and testimony indicated that he was not "Ivan the Terrible" at Treblinka, and that the OSI was ethically compelled to abandon the Treblinka charge and change its emphasis to Sobibor. He wrote a memo to this effect, it was ignored by his superiors, and he resigned. The OSI added a count regarding Sobibor in its case, but continued to rely primarily on the witness testimony about Treblinka, which it had expanded from just the Israeli eye witnesses to include survivors residing in other countries who purported to recognize photographs of Demjanjuk as the Ivan from Treblinka.
When the trial commenced in 1981 the OSI attorneys had not furnished the defense with the various pieces of evidence which in Parker's view (and in mine as well) tended to throw into question Demjanjuk's presence at Treblinka (which they were obliged to do under US practice), nor did they ever furnish it to the Israeli prosecutors
. Demjanjuk's own testimony at the trial was a disaster; he contradicted himself, came up with a quantity of incredible testimony, and was ripped apart on cross examination. Based on the evidence that he had indeed gone through the SS Wachman training course, and the testimony of some 10 eye-witness survivors that he had been a guard at Treblinka, the Court ruled against him without considering the Sobibor issue.
During the course of various appeals the OSI attorneys considered trying to deport him to the Soviet Union, where they hoped he might be tried for war crimes, but the Soviets were not interested. The OSI then approached the Israelis, who after some consideration agreed that they would be willing to charge him with war crimes and ask for his extradition (NOT deportation) to Israel. This was on the basis of the US court decision that he had been an SS Wachman at Treblinka, which presumably the Israelis assumed would also stand up in an Israeli court, being unaware of the exculpatory evidence on this issue which the OSI had withheld from the defense as well as the Israelis and had no intention at this juncure of letting it get out to anyone.
Demjanjuk finally exhausted all his appeals in the US in 1986 and was extradited to stand trial in Israel. In the meantime the Israeli prosecutors had been trying, with little or no success, to obtain through third party brokers any and all information which the Soviet authorities held concerning Demjanjuk and others whom they thought might have been guilty of war crimes. There were still no diplomatic relations between the two countries and the Soviets were not receptive, except to furnish 3 or 4 documents, apparently at OSI request.
The trial commenced in early 1987 and ended about a year later with Demjanjuk's conviction. He again proved to be a terrible witness for himself, and the defense, quite naturally, shied away from the argument that Demjanjuk could not have been the Ivan of Treblinka because he was in fact an SS Wachman at Sobibor at the time.
An appeal was taken from the verdict which was heard by the Israeli Supreme Court commencing in May, 1990. And in the meantime two things had happened. The Soviet Union and the relationship between Soviet and Israeli prosecutorial authorities had begun to thaw out significantly. And serious questions had been begun to be publically raised about whether one Ivan Marshenko, rather than John (Ivan) Demjanjuk, had really been the infamous Ivan of Treblinka.
A television broadcast in early 1990 by the CBS' "60 Minutes" program involved an interview with the widow of one Kazimir Dudek, a resident of a village about a mile from Treblinka. In an investigation by Polish authorities a few years before, Kazimir had identified a photo of Demjanjuk as one of Ivan Marshenko, a guard at Treblinka. The Israelis were aware of this, and had assumed that Demjanjuk had used the name as an alias, as it was also his mother's maiden name. But on "60 Minutes" Maria Dudek said that she had slept with Marshenko when he visited her village off-duty for vodka and sex and that he was the real Ivan of Treblinka, casting doubt on her late husband's identification of Demjanjuk.
In addition, in the Spring of 1990, the British author Gitta Sereny, who had specialized in and published a study of the Treblinka camp, became convinced that there had been a case of mistaken identity and commenced and publicized an investigation of her own. Moreover, in May 1990 US Congressman Traficant, who had many Ukranians in his Congressiaonal District and had become an extremely vocal Demjanjuk supporter, managed to come up with a 27 year old statement of a surviving Treblinka guard, which identified Marshenko and six others as also serving as Wachmänner at the camp, but Demjanjuk's name was not among them.
There was a great flurry of publicity in the US as a result of these developments, much of it IMHO politically inspired, but undoubtedly picked up by the antennae of the Israeli authorities, who I am confident are ever alert to public opinion trends in the US.
My belief is that by the time of the May-June 1990 hearings on the Israeli Supreme Court appeal, the Israeli prosecutors had to begin to feel that their case on Treblinka might turn out to be somewhat shakier than they thought. They were still not aware, I believe, that the OSI had withheld from them evidence which tended to be exculpatory of the Treblinka charge (this did not come out until mid 1992, as a result of an investigation ordered sua sponte
by the US 6th Circuit Court of Appeals in light of all the publicity the case had been receiving), but the Demjanjuk defense had clearly been reenergized by the above developments, and was starting to investigate the Marshenko angle on its own.
At that point, in my experience any lawyer worth his salt would start looking (1) for evidence which could confirm his principal theory of his case, and (2) for alternative theories, if he felt his principal line of attack were being threatened. And, in fairness, there may always be an itch to know the true facts and to avoid an injustice - despite our general reputation, there are still some of us (perhaps no longer too many) who hold notions of ethics, fair play and justice dear to our hearts. So I will concede that in my previous post I may have been a little too hard on the Israeli prosecutors in thinking that, in their efforts to obtain more evidence from the Soviets, they were simply trying to lay a case for a conviction based on Demjanjuk's activities at Sobibor and Flossenbürg. But if they were competent and professional lawyers, and they seem to have been, that had to be a strong motive as well.
In any event, in the Autumn of 1990 representatives of Demjanjuk journied to the city on the Black Sea where Federenko had been tried in an attempt to review the court files of that case. The Soviets refused them access, but turned over the voluminous files to the Israeli prosecutors in December of that year in Moscow, and during the course of the next two years in a spirit of relatively warm cooperation, the Israeli prosecutors sought and were granted access to relevant files from many other jurisdictions. All of this evidence that touched on the Demjanjuk case being furnished to the defense as well. These files contained documentary evidence which cast serious doubt on Demjanjuk's service at Treblinka but confirmed his service at Sobibor. And as they also seemed to confirm his subsequent service as an SS Wachman at Flossenbürg, the Israeli prosecutors visited the national West German archives at Koblentz and obtained damning confirmatory evidence that such was indeed the case. All in all, a total of some 1800 pages of additional documentary evidence, handwritten in Russian and translated into Hebrew and English, was dug up by the prosecution, furnished to the defense and ultimately submitted to the Supreme Court during the appelate process and admitted into evidence. This was highly unusual, as (in the US and I understand the same is true in Israel) the record evidence is usually frozen at the trial court level, and additional evidence admitted on appeal only on very rare instances.
This continued investigation, together with a host of defense motions for summary dismissal of the case, delayed the appeal process and the final verdict, which held that the case against Demjanjuk as a Treblika Wachman had not been proved beyond a reasonable doubt and refused to consider the charges based on his service at Sobibor and Flossenbürg, was not issued until mid-1993.
For whatever it may be worth, had I been in the shoes of the Israeli prosecutors in 1990, I would also have begun to be concerned (as I think they were) that my victory in the lower court might just be threatened to be reversed on appeal in light of all the heavy publicity of facts I had not been aware of. As a consequence, I would grasp at any and every legitimate opportunity to find out the true facts of the case and to establish, if at all possible, an alternative theory to support the lower court decision if that should turn out to be necessary. So I really don't see anything self-contradictory in my prior post at all.
I'm sorry this is so long winded and boring, but I thought an understanding of the probable motives of the Israeli prosecutors would best be illuminated against a detailed background. I hope it helps answer your questions.