Saturday, November 09, 2019

On that Netflix documentary about Demjanjuk...

Not going to watch it, to be honest. But I see some ignorant commentary around it, namely that there's still some kind of a lingering unresolved mystery around Demjanjuk's identity.

There simply isn't. We know for a fact that he wasn't Ivan the Terrible. Period.

Already pointed this out here, but let's recap very briefly.

The two basic facts:
1. Ivan Demjanjuk, born in 1920 in Dubovi Makharyntsi, served in the camps, including Sobibor, under his own name. We know this from the original German documents (among other things). Which means that his name in the Trawniki registration system was Demjanjuk. That would be his name in all the camps he was sent to. Not some random "Marchenko" nickname. That alone settles it.

Demjanjuk
2. Ivan Marchenko was an entirely different person with a different biography, born in Dnepropetrovsk in 1911 and had at least one daughter, Kateryna Kovalenko, who was still alive in the 1990s. Unlike Demjanjuk, he was last seen in Yugoslavia, where his traces disappear. So this settles it too. Marchenko wasn't some kind of a fluke.

Marchenko.
Sapienti sat.

Yet some pretty ignorant dudebros, like Eli Gabay, bring up Demjanjuk writing down "Marchenko" as his mother's maiden name on some application as evidence he used an alias... Except such folks apparently cannot keep two thoughts in their head at once, since in the official Nazi system he was Demjanjuk and thus quite obviously did not use an alias. There was simply no possibility of an "alias" within a centralized system like the one they used at Trawniki (i. e. having two different surnames at once in the same system). And the guards who met Demjanjuk also remembered him as Demjanjuk in their testimonies. "Marchenko" in Ukraine is like "Smith" in the US. Demjanjuk wrote it down as his mother's maiden name because he forgot the real one (Tabachuk). Anyway, what does anyone's mother's maiden name have to do with anything in the first place? It wasn't his mother that was being accused of being Ivan the Terrible last time I checked...

But I'm sure that even the objective fact, that Ivan Marchenko was not an alias but a real person, won't stop the dudebros from repeating this meme again and again, and again. Does Ivan the Terrible crave electrolytes?

And this Gabay guy even continues digging:
"To me, the survivor testimony was holy," said Gabay. "That was good enough for us, and should be for the Jewish state when survivors are testifying."
And in the documentary:
“How could you be in Jerusualem sitting in a court of law and say that the survivors' testimony is less than a reasonable doubt?" Israeli State Prosecutor Eli Gabay says in the documentary. "To say to that survivor, 'The man you saw outside of the gas chamber for months on end killing your family? We don’t believe you. We just don’t believe you that it’s him.'”
What a mindset. With such "prosecutors" it becomes more clear why the initial shameful miscarriage of justice happened in the first place.

Yeah, let's just ignore the fact that Demjanjuk and Marchenko were different people and let's sentence the man to death because several (far from all) survivors allegely identified him 35-40 years after the fact, and let's forget that such identifications are not only untrustworthy in principle, but even worse, the "investigators" additionally completely mucked up the identification process thus actually tampering with the survivors' memories and making them unreliable identifiers in this case. Additionally, many of the witnesses were uncertain or not quite certain at first, or didn't evene recognize Demjanjuk, but then somehow reached absolute certainty, which only means that they conviced themselves over time, not a good sign. Nevermind, off to the stake with Ivan! (On all of this see the Appendix with a summary of Willem Wagenaar's book Identifying Ivan.)

Demjanjuk was a guard in the extermination camp Sobibor (and also at Majdanek and Flossenbürg). He was sentenced for being an accomplice to the murder of about 28000 Jews that were killed in the camp in the months he served there (though it should be mentioned that due to him dying before the appeals process took place he is formally innocent according to the German law). Due to the rotation of posts he probably, at some point, directly took part in unloading of the transports and driving the Jews into the gas chambers, though we don't have specific evidence for specific cases. This was also confirmed by the Wachmann Ignat Danilchenko, whose statement the court found credible after a close analysis.

The court positively excluded the possibility that Demjanjuk was also in Treblinka (due to the reasons I also gave here).

That's basically what we know.



Appendix: a detailed summary, with many quotations, of Willem Wagenaar's book Identifying Ivan. A case study in legal psychology, 1988, Harvard University Press.

p. xi:
"Among this material there are statements by 15 witnesses who saw Ivan for varying periods, and who failed to identify John Demjanjuk, or who positively indicated that he was not Ivan, or who identified him as another person. Although the attempts at identification were made long ago, this material, the existence of which was known to the US prosecution throughout, only became available to the Israeli defense in 1988."

p. 5:
"The question of whether survivors of Nazi death camps can completely forget the faces of their tormentors raises many emotions. But the question is wrong. The issue is not that Ivan's face is completely or substantially forgotten, but that a slight fading of the memory over 35 years has occurred just enough to render possible confusion with another person, who looks very similar."

pp. 5-60 [General discussion of identifications and problems with them, including the points applying to the Demjanjuk case.]

pp. 45-6: [About the costs and benefits of a positive identification and its possible falsity:]
"The benefit of a conviction is large. The subjective cost of the feeling that a criminal has escaped justice might be even larger. The cost of convicting the wrong person is very high according to norms accepted by our society. But it could be estimated as low by witnesses, especially in a case like Demjanjuk's where many people have told me that, even if he is not Ivan, he certainly is a criminal who has something to hide. The justified acquittal of an innocent suspect is again highly valued by our society, but it is not the main concern of a witness for the prosecution. It is abundantly clear from the literature that the outcome of such a cost-benefit analysis is about the most powerful influence on the choice of a decision criterion. In the case of John Demjanjuk there are two reasons why the cost-benefit argument carries much weight. One is that all witnesses were Treblinka survivors. As we will see in the Chapter 4, some of the witnesses declared that their sole motivation to survive was to testify before the world about what happened in Treblinka. No other witnesses who were not victims of the Nazi regime, like for instance the camp guard Otto Horn, testified in the courtroom. The other reason is that the Nazi crimes in Treblinka were of historical proportions; the subjective cost of setting free the murderer of 850,000 people might outweigh the cost of convicting one innocent man."

p. 46:
"Witnesses in the Demjanjuk case were not routinely warned that possibly none of the pictures represented one of their guards. On the contrary, as we will see later, the photospreads often suggested that they consisted of nothing but Nazi criminals. Moreover, four out of the five who testified in court had correctly identified Fedor Fedorenko, another guard from Treblinka, in the same photospread. This could have increased their confidence in the ability of the investigators to come up with the guilty people."

p. 47: [Explanation that in the usual cases with photospreads containing one suspect and the rest being innocent foils, there's a risk for the witness of naming an innocent person.]
"In the Demjanuk case there was another reason why the risk of being caught out was small, or was gauged to be small. This reason was that all people in the lineup were suspected of Nazi crimes. Demjanjuk was first suspected of being a guard in the death camp Sobibor. When Eugen Turowski and Abraham Goldfarb, the first Treblinka survivors who identified Demjanjuk as Ivam, made their identification, this response could have been classified as an error. But the opposite happened. The charge against Demjanjuk was adapted to the identification, which could be done because he was not an innocent foil. The witnesses could have been aware of the fact that a positive response would always lead to a prosecution, and that therefore the risk of being caught making a false identification was zero."

pp. 47-8:
"The decision criterion is also affected by a strong belief that victims will always remember their torturers. Many victims declare in the courtroom that they see the face of the criminal in their dreams, and that they will never forget this face. After making such a statement it will be difficult for a witness to be hesitant in an identification test. The belief that one will never forget is almost a commitment to a clearcut response. In case of a doubtful recognition one may tend to respond with more confidence than is warranted by the actual resemblance." [quoting such a statement from a witness] "It is quite possible that Epstein is right, that he has a durable image of Ivan in his memory, and that therefore his identification was correct. But such statements can also mean that witnesses deny the possibility of a mistake, and that for this reason they have shifted their response criterion to the left."

p. 48:
"The fifth influence on the location of the decision criterion is the knowledge that other witnesses made a positive identification before, since this provides another reason for believing that the perpetrator is in the lineup."

p. 49: [After explaning the numerous ways the above influences the identification:]
"Many of these elements were present in the Demjanjuk case, as we will see in later chapters. The witnesses knew each other very well in most instances, and it is unlikely that they did not meet between the interviews.

p. 55:
"When witnesses are, in the course of investigative procedures, confronted with the suspect or a picture of the suspect, they may identify the same person in a subsequent lineup for that reason alone. [...] We will see that most witnesses in the Demjanjuk case were exposed to two photospreads that had only a representation of Demjanuk in common."

pp. 56-7:
"A strong form of suggestion is specifically asking questions about one participants, or one picture, such as "Don't you recognize number five?" The result of such a direct question is that the effective lineup size is immediately reduced to one. As said before, such errors will rarely become evident, because confrontations are not recorded on tape or in verbatim protocols, while errors will tend to be omitted from later statements. But we will see that similar direct suggestive questions were asked and reported by the Demjanjuk investigators."

pp. 58-9:
"The recognition of Demjanjuk's picture was not always immediate. On the contrary, some subjects needed a long time, which provided them sufficient opportunity to reconstruct their memories unconsciously. At the same time quite a few of the witnesses expressed less than 100 percent confidence. Five witnesses made identifications in the courtroom with great confidence ten years after their first identifications. It cannot be expected that witnesses would be able to distinguish between their original memories and the reconstructions thereof, made ten years ago."

pp. 61-94: [50 rules for the conduct and interpretation of identity tests.]
pp. 100-3: [About the crucial day in 1976 when the first identification of Demjanjuk as Ivan was made:]
"It should be realized that, while Turowski was inspecting picture 17 [Fedorenko], Demjanjuk's picture was adjacent to it all the time. Turowski did not refer to it with one word on May 9. Or rather the written statement [by an Israeli police investigator] does not mention such a reference.
At 1.00 p.m. Goldfarb was questioned by Mrs. Radiwker, also on Fedorenko. He declared:
"I do not remember an Ukrainian by the name of Fedorenko, that is, I do not remember the name Fedorenko. I was shown 17 photos of Ukrainians pasted on three brown cardboard pages. The man on picture No. 16 seems familiar to me. When asked about it: I cannot identify the man on picture No. 17, which should be a representation of Fedorenko."
Thus, at one o'clock in the afternoon Goldfarb seemed to recognize Demjanjuk. This was the first time a relation between Demjanjuk and Treblinka was suggested, although Goldfarb did not mention the name Ivan. Goldfarb was heard again on the same day, at 2.30 p.m. His second statement starts with:
"To the subject of investigations against the Ukrainian Nazi criminal Demjanjuk, Ivan, Mr. Abraham Goldfarb was given a hearing today."
[The details are then discussed, and Goldfarb's statement in which he now is more certain, is quoted.]
The reference to Sobibor is revealing. Again the statement does not contain Mrs. Radiwker's question, but apparently she told Goldfarb that he made a mistake, because her files related Demjanjuk to Sobibor, not to Treblinka. But now Goldfarb is certain that No. 16 depicts Ivan; much more certain than he was at 1.00 p.m., when he said: "Seems familiar to me". Why was he so certain now? Had he forgotten the name of Ivan, and did the prompting by Mrs. Radiwker cue him into memories that were not released before by looking at Demjanjuk's picture? Or did he recognize the picture because he had looked at it an hour ago? We will never know exactly what happened, because Goldfarb died in 1984, while Mrs. Radiwker remained very vague in her later explanations."
[Turowski's statement on the next day is quoted in which he now claims certainty about Ivan and even his surname.]
"[Turowski:] "[...]Him I recognize immediately and with full assurance.[...]"
[...]
This statement obviously creates a puzzle. The previous day Turowski saw the album page with photos No. 16 and 17 next to each other. He recognized No. 17, but failed to mention Ivan on No. 16. The following day, after Mrs. Radiwker mentioned the name Ivan, he recognized Ivan immediately and with full assurance. "
[Radiwker's later claims that Turowski actually immediately recognized Ivan on the previous day are discussed and dismissed as not credible due to her own protocols, including the statement by Turowski on May 9, personally written down by her, that he could only recognize one Ukrainian on the spread, Fedorenko.
The probability of Goldfarb telling Turowski about the surprising identification is discussed.]

pp. 103-4:
"Another riddle in Turowski's second statement is that he claimed to know the name Demjanjuk. None of the other witnesses knew Ivan's last name. The connection between John Demjanjuk and Ivan the Terrible is through the recognition by eyewitnesses, not through the correspondence of last names. The statement is even more surprising in view of the fact that Turowski had already said that he remembered no other name than Fedorenko. Mrs. Radiwker had clearly mentioned the name Demjanjuk before Turowski claimed to recognize it, hence the recall was not at all spontaneous. Still it would be essential to the case for one witness to testify that Ivan's last name was really Demjanjuk. But how could Turowski have known this name? Mrs. Radiwker was asked about this. She answered: "It did not interest me." Obviously she missed the vital point: that Turowski's ready agreement that he knew the name mentioned to him, although in fact he probably did not know it, might signify that he was sensitive to suggestions made by the investigator."

p. 104: [Rosenberg's May 11 statement is discussed. Rosenberg:]
"I see a great resemblance to the Ukrainian Ivan, who was active in the camp 2 [...] I decline, however, to identify him with absolute certainty. [...]"

pp. 105-6: [Rosenberg's 1947 statement that some people killed Ivan with shovels is discussed. Rosenberg explained in court that it was hearsay.]
"However, in January 1988 a handwritten statement by Rosenberg dated 1945 was discovered in a Warsaw archive. This statement referred to the death of Ivan as something witnessed by Rosenberg himself. Confronted with this statement Rosenberg declared: "It was a dream, a strong desire, I wanted it to be true. Now I know that Ivan is still alive."
[Further irregularities surrounding Rosenberg's statements are discussed, such as the absence of identification of Ivan from the photospread with Fedorenko and Demjanjuk. Rosenberg later claimed that he allegedly identified Ivan and this was omitted by the Israeli investigators from the protocol. Later he contradicted this account again. The details further diminish the credibility of his identification and of the id procedures used by the Israeli investigators in this case.]

p. 108:
"Rosenberg's entire testimony is thrown into question. The problem with it has less to do with Rosenberg's memory and more with the inconsistencies in the written testimonies. The attempt to reconcile the contradiction through oral testimony about what really happened during the identification had failed dismally. The additional statements by Rosenberg, Kolar, and Mrs. Radiwker only added contradictions, suggesting that the witnesses might have been subtly coached in an unacceptable manner."

pp. 108-9: [Negative statements of Teigman and Kudlik are discussed; they did not recognize Ivan and Radiwker's protocols showed her trying to coach the witness Kudlik.]
"Simon Greenspan identified Fedorenko on July 4, 1976, but failed to identify Demjanjuk. This is not unimportant, because the identification of Fedorenko proves that Greenspan was there, and was able to remember faces. Ivan made himself much more conspicuous than Fedorenko; how could Greenspan recognize one but not the other?"
[...]
[It is pointed out that the first additional identifications only appear from Sept. 1976 onwards, which is significant, since every year some of the survivors met in Tel Aviv on Aug. 2, the day of the uprising. The additional witnesses who identified Demjanjuk lived in Israel.]

p. 110:
"Their testimony can be accepted only after it is established that they did not meet with the other three, or that at their meeting no reference to Ivan was made. Is it plausible that none of the three would mention the terrible shock they had after their discovery that Ivan was still alive? There is no evidence on this matter. The investigators did not record anything related to contacts among witnesses, and the matter was not thoroughly investigated in court."

pp. 110-3: [Next witness to identify D., with absolute certainty, was Czarny; who, however, failed to identify him during the Fedorenko investigations according to the protocols. Further:
"[...] Czarny declared in the Fedorenko trial three times that he recognized only Fedorenko, no other person."
[The next witness was Schlomo Helman, who stayed in Treblinka longer than any other survivor and assisted in building the gas chambers, and worked alongside Ivan for many months. Significantly, he was shown only 5 photos instead of all 17.]
"The name of Demjanjuk presented to me does not mean anything to me. [...] The witness cannot identify Ivan Demjanjuk. He points only at the picture No. 17 (the photograph of Fedorenko) and declares: "This man I have seen in Treblinka. [...]'

p. 114-6 [The next witness was Boraks, who was shown 8 photos instead of 17 and claimed to identify Ivan with absolute certainty. In Jerusalem his memory failed him completely.
Next positive witness was Lindwasser. Then there was a long and unexplained pause, the witness Epstein claimed to identify Demjanjuk in 1978 - but after such time passage he almost certainly discussed the case with the other survivors. He confirmed meeting with them, esp. Rosenberg, who was his friend.]

p. 118: [The discussion of the Trawniki card photo used for identification begins.]
"The Trawniki spread consisted of eight pictures, the picture from the Trawniki document and seven other people suspected of Nazi crimes. It is not clear on what basis the foils were selected. The photographs were of a better quality, and better standardized than the album spread. The faces were of about the same size. There were also some obvious differences: the eight people wore different uniforms, some with insignia Ivan could have never worn; two of the people were looking straight into the camera, including the man from the Trawniki document. Demjanuk is the only blond person in the set, see Figure 4.2."
[Epstein identified Ivan in the spread, but also putatively identified Nikolay, another GC operator, using the same words he used for Demjanjuk in a previous identification process; this identification was false.]
pp. 120-3:
"Rosenberg pointed also at two other people, but his signature was only put on the back of the Trawniki picture, which contained Epstein's signature already. This means that by now Rosenberg knew that Epstein had picked the same picture."
[Next positive witness, Rajchman, was only questioned in 1980. And puzzlingly, the report of his interrogation was only written 7 years later.]
"One riddle in Fusi's report is that it states clearly that the interview was conducted in the English language, without an interpreter. This is impossible, as Rajchman does not speak or understand English. His languages are Yiddish and Spanish, not even Hebrew. If Fusi does not remember the interpreter, how can we be assured that all other details are reported correctly?"
[Fusi first showed Rajchmann photospread with the 1951 picture, which he allegedly recognized. And then the Trawniki card picture.]
"[...] Rajchman did not recognize the Trawniki portrait. The same spread was shown to him during the Cleveland trial in 1981. Now he recognized the Trawniki picture. In the 1987 Jerusalem testimony he said about this:"
"A. There I recognized a picture that was even more similar than the other one, because in court they showed me a picture which was just the right weight, even more similar to the way he looks in Treblinka.[...]"
[When confronted with the contradiction, his reply was:]
"I can't say. One thing I can say which is that the lawyer is not speaking the truth when he says that I talked English. [...]"

p. 124:
"Five witnesses testified for the prosecution in 1987 in the Jerusalem court: Rosenberg, Czarny, Boraks, Epstein, and Rajchman. Turowski, Goldfarb, and Lindwasser had died before that time, and Levkowitch withdrew her testimony".
[The 5 witnesses identified D. in court with absolute certainty. Their identifications, however, cannot be considered serious evidence, as the following table shows:]
pp. 126ff.: [Neither the Mrs. Radiwker, nor the Judge Levine had any training in the identification and accepted extremely leading methods as normal. The investigator Kolar had some experience, but even he did not know all the official rules in Israel for such procedures. A discussion of how the previously mentioned rules for identifications were broken begins. Some points have already been mentioned above. A mock identification procedure conducted as an experiment is described:]

p. 132:
"I followed this procedure with 25 mock witnesses. They were given the following instruction: "We are looking for a man with a full round face, a short wide neck, a bald pate starting. We will give you a set of eight photographs; please point to the person who is most likely to be the wanted person." [...] All 25 mock witnesses pointed to picture No. 16 of John Demjanjuk, without any exception."

pp. 133-5:
"A closer inspection of page three of the album spread makes it abundantly clear why it was so easy to guess that Demjanjuk is the suspect. The foils were not chosen on the basis of descriptions produced prior to the identifications. In fact there was no attempt to get such descriptions. The memories of the witnesses were tested through the photographs, not through interrogation. The result is that none of the foils bore any resemblance to Demjanjuk. His portrait was the only one that could be described as round face, short neck, balding. Some of the faces were notably non-round, non-balding. Demjanjuk's face on the picture was much larger than any other face. Two of the others were logically excluded: Fedorenko because he had been identified previously by most witnesses and could have been familiar to all witnesses; Rychalsky because in some tests his name was on his picture."
[A fair lineup resulted only in two mock witnesses out of 25 pointing to Demjanjuk. In an independent experiment 58 students were asked to point to the "most guilty looking" person on the spreads, about 30% then pointed to Demjanjuk in both real spreads. With a correctly made lineup only two out of 25 mock witnesses pointed out Demjanjuk as the "most guilty looking" person.
The rule against showing different spreads with the same individual was broken too. This biased the identification, as a couple of experiments have shown.]

pp. 136ff.: [The recording and reporting by the investigators was neither complete, nor fully correct, despite their insistence that they were accurate.]

p. 140: [The crucial negative results were not systematically gathered.]

p. 142: [Suggestive and arbitrary methods used by the investigators.]

p. 143: [Despite later confidence, the first results were not conclusive.]
"Recognition of a suspect can only be accepted as legal evidence if it is immediate. Therefore we need report about the first interrogations, not about recognitions that occurred later. Mrs. Radiwker did not report the first recognitions by Goldfarb, Turowski, and Czarny. Of the others, Rosenberg was not certain: "I see a great resemblance; I decline to identify with certainty". Epstein was also not certain: "This picture reminds me strongly of Ivan". Rajchman needed half an hour, and was only "fairly certain". The only immediate and certain first identifications were by Boraks, Lindwasser, and Levkovitch. At the Jerusalem trial Boraks was too old to produce a meaningful testimony; Lindwasser was dead; the testimony by Levkowitch was withdrawn. It is not unfair to conclude that out of some 30 witnesses only three were reported to be certain. These three made their identifications more than four months after the testing of Turowski, Goldfarb, and Rosenberg. They could have talked to the others at the yearly memorial meeting, but they could not be interviewed about this in court."

p. 144:
"The fact that so many witnesses failed to make any identification creates a serious doubt about the identity of John Demjanjuk. In principle there are two possibilities: either those who did not identify him did not perceive or remember Ivan accurately; or those who did identify him all made the same mistake. What is the probability of these two cases? The first possibility is in fact not at all likely; we know from the case of Marinus De Rijke that even concentration camp survivors forget, and 40 years is a long time. But the second possibility should be a major source of concern to the court, because the investigations were conducted in such a suggestive manner that the same mistake could easily have occurred in one third of the witnesses. The photographic parades were actually showups, not lineups. The investigators could have exerted all sorts of suggestion. The identifications were separated by considerable time periods, in which the witnesses could have talked to each other. From experiences with other cases we know that these are exactly the conditions in which confirmation by successive witnesses should not be accepted as corroboration."

p. 145: [Out of 46 rules applicable to the Demjanjuk case 37 were "directly or indirectly violated by the investigating authorities". A table of all violations is presented.]
"[...] the procedures used for the identification of Ivan are notoriously invalid."

pp. 147ff.: [Ethical aspects of expert testimony are discussed.]

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