Israeli Jurists Criticized for Aggressive Tactics During Demjanjuk Trial

Three Israeli judges who will decide the fate of retired Cleveland auto worker John Demjanjuk have become the focus of a controversy because of their aggressive handling of defense witnesses in the war crimes trial.

Since the defense put Demjanjuk on the stand as its first witness, almost four weeks ago, the judges have intervened repeatedly during direct and cross-examination. They have publicly accused the defendant of lying and being evasive, and they have openly questioned the competence of two expert witnesses for the defense.

“Sometimes I think there are three extra prosecutors up there,” the defendant’s son, John Demjanjuk Jr., said in an interview.

Chief defense attorney John Gill said the judges’ behavior makes it appear that “they’ve already come to a conclusion.”

Trial spokesman Yossi Hasin defended Chief Judge Dov Levin and his two colleagues, Judges Dalia Dorner and Zvi Tal. He said their actions were appropriate given the differences in the Israeli and American judicial systems.

There is no jury here. The judges render the final verdict. If they are aggressive or provocative, Hasin said, it is because they have to make the decision.

“So they have to understand,” he said. “They want to be clear.”

The question of fairness is considered particularly critical in this trial, which is only the second of an alleged war criminal in Israel’s history. The first was 25 years ago, when Adolf Eichmann was found guilty of being the architect of the World War II Nazi plan to exterminate Jews. He was hanged.

The prosecution alleges that Demjanjuk was a guard at the Treblinka death camp in Poland and that his sadism in helping to herd 850,000 Jews into the gas chambers earned him the nickname “Ivan the Terrible.”

The Ukrainian-born Demjanjuk, who emigrated to the United States after the war, insists that he is a victim of mistaken identity, that he was never at Treblinka.

He says he was captured by the Germans while serving in the Soviet army and spent the rest of the war in prisoner-of-war camps and as part of an anti-Communist brigade that fought on the German side against the Russians.

Some critics question whether it is possible for Demjanjuk or almost any other alleged war criminal to receive a fair trial in Israel more than 40 years after the Holocaust.

Judge Levin has commented in court about the spotlight under which the trial is taking place. He said last month that he was being particularly lenient about a line of questioning because “justice must also be seen to be done.”

However, since soon after the defense opened its case on July 27, the judges have seemed unusually aggressive.

Judge Dorner, chiding associate defense counsel Yoram Sheftel in the middle of his opening statement, said, “If that is all you have to say (in Demjanjuk’s defense), I’m telling you, you have a problem.”

Two days later, after Demjanjuk told the court he was glad he was being tried in Israel rather than the Soviet Union, Levin cracked, “But you would be happy not to be in Israel, either.”

In cross-examination, Demjanjuk was caught repeatedly in contra dictory statements. His explanation, again and again, was that he had not understood the question, or had forgotten details, or had been misled by a faulty translation from Hebrew into his native Ukrainian.

“You pretend to be a primitive person,” Levin admonished him Aug. 3, “but I say that you are not primitive at all. When I ask about ‘A’ you reply about ‘C,’ and the other way around.”

The next day the chief judge charged that Demjanjuk had “a talent for not answering questions.” But evasion “will not help you,” he said, adding, “We’ll draw our conclusions when the time comes to evaluate your truthfulness.”

On Aug. 5, Levin told Demjanjuk, “You are getting yourself deeper and deeper into lies.”

All three judges criticized the defense’s second witness, Edna Robertson, who was presented as a documents expert from Florida.

In direct testimony, Robertson declared that in her expert opinion a key prosecution exhibit known as the “Trawniki card” was not authentic. The card, bearing what the prosecution contends is Demjanjuk’s photograph and signature, reputedly links him to a camp at Trawniki, Poland, where Ukrainians were trained as death camp guards.

But in cross-examination, Robertson was forced, under prosecution inquiry into her qualifications, to qualify her opinion.

“I wonder what expertise you have,” Judge Tal remarked.

At another point, Levin told Robertson: “I have the feeling that the fact there is no chemistry between you and the court is because we feel an expert should have full knowledge of the subject. You are trying to convince us that you are an expert based upon partial knowledge. . . . What you saw with your naked eyes I saw also, but I do not pretend to be an expert in any of these fields.”

After hearing testimony Monday from a defense witness, psychologist Anita Pritchard, Levin said her remarks were so peripheral to the point of the prosecution witnesses she had been called to rebut that he was not sure they provided any basis for cross-examination.

Trial spokesman Hasin said that although it “may be a little unusual for the judge to refer to (Robertson’s) qualifications . . . the blame was on her” for giving what he described as “a very unconvincing performance.”

Similarly, Hasin said the judges’ repeated questioning of Demjanjuk’s testimony should be seen as a warning that they find his story unconvincing.

“It only proves the defense is in big trouble,” he said.

Attorney Gil conceded that the defense presentation has been damaged by poor preparation, which he blamed on former chief defense counsel Mark O’Connor, who was dismissed in July. However, he said, the defense performance will improve when the trial reconvenes on Sept. 7.

Several spectators at the trial have been critical of the judges.

Yael Einstein, an Israeli secretary from suburban Tel Aviv, said: “They’re too involved. They ask too many questions.”

Some independent Israeli attorneys who are expert in procedure agree that Demjanjuk’s judges are intervening to an extent beyond what they regard as normal.

“Frankly, in this kind of case I would prefer the judges to be more quiet,” one Israeli attorney said, asking not to be identified by name.

Stephen Goldstein, a law professor at Hebrew University, commented: “Certainly if there was a jury which was the ultimate decider, and the judges would (question the veracity or expertise of defense witnesses), that would be absolutely improper. But the judges are talking about their own impressions about how they’re going to have to decide.

“To an extent, you could still say it’s no good. They’re prejudging. They shouldn’t express anything until they counsel at the end of the whole case, et cetera. And there’s something to that. But it’s not the same thing as trying to say something that might prejudice someone else who is the decider. Because they themselves are the deciders.”