Eyewitness Evidence Six Decades After World War II

John Demjanjuk on Trial in Israel

My last post reviewed Once We Were Brothers by Ronald D. Balson. In the book Holocaust survivor, Ben Solomon, alleged that Chicago billionaire, Elliott Rosenzweig, was really his foster brother, Otto Piatek, who had served in the SS in Poland during WW II, participated in the Holocaust and stole from Solomon’s family.

Lawyer, Cat Lockhart, is pushed by Solomon to launch a lawsuit against Rosenzweig / Piatek (hereafter “Piatek”) for the theft of Solomon family property. Cat wants proof beyond Solomon’s visual identification of Piatek. She is justly concerned about eyewitness evidence 60 years after Solomon last met Piatek is unreliable.

Solomon insists that it is not just the appearance of Piatek he relies on for identification. He says Piatek’s way of speach, his manners and his gestures are the same as Piatek he lived with for 6 years in Poland.

Still the evidence is Solomon’s memory and perception. It is clear he hates Piatek. Can he be objective? Cat wants more.

While never discussed in the book I was reminded of the lengthy prosecution of John Demjanjuk, a retired steelworker, living quietly in Cleveland when a journalist investigating ethnic Ukrainians who had moved to North America, using information received from the U.S.S.R., alleged Demjanjuk had collaborated with the Nazis. Evidence was primarily an ID card and 5 camp survivors who identified him as a guard.

Demjanjuk is accused of being Ivan “the Terrible” a vicious guard.

Ultimately Demjanjuk, deported to Israel, was put on trial. In a dramatic trial he was convicted.

During the trial it was demonstrated that the card was almost certainly a forgery. (Later evidence was even more conclusive.)

The primary evidence against Demjanjuk was eyewitness evidence. One of the Jewish camp survivors insisted, after looking into Demjanjuk’s eyes, that he was certainly Ivan “the Terrible”. Then it was determined that witness four decades earlier had sworn in a deposition that Ivan “the Terrible” had died in a prisoner uprising.

 

I remember how public opinion was sure from the eyewitness evidence that Demjanjuk was evil and deserving of the death penalty.

On appeal the conviction was overturned because of extensive new evidence. As set out in Wikipedia:

On 29 July 1993, a five-judge panel of the Israeli Supreme Court overturned the guilty verdict on appeal. Their ruling was based on the written statements of 37 former guards at Treblinka that identified Ivan the Terrible as "Ivan Marchenko." Central to the new evidence was a photograph of Ivan the Terrible and a description that did not match the 1942 appearance of Demjanjuk. The accounts of 21 guards who were tried in the Soviet Union on war crimes gave details that differentiate Demjanjuk from Ivan the Terrible—that his surname was Marchenko.

In a subsequent convoluted process he was tried in Germany when he was 90 and convicted of being accessory to murder on the basis that though he was not Ivan “the Terrible” he had served as a guard in a concentration camp.

This post is not about the issues of prosecuting Demjanjuk but to illustrate the fraility of eyewitness evidence decades after an event.



It seemed to me that Balson had in mind the Demjanjuk case when he wrote the book. In Once We Were Brothers the real Otto Piatek, with the slightly different surname of Piacek, is supposedly residing in Cleveland. As well, after the court action is started there is evidence Piatek was known as the Butcher of Zamość.


Undoubtedly dramatic Cat filed the case with Solomon her sole witness. There is a little more evidence than Solomon's testimony but I am doubtful a real life lawyer would have filed a lawsuit against Piatek on what was available to Cat. Solomon essentially wanted to get the further evidence to identify Piatek from questioning Piatek. Every litigator has started court actions based on a single witness but not where the evidence is about events six decades in the past.

 

The mists of time have their greatest effects on eyewitness evidence.