At the end of a Bloomberg News report about the Demjanjuk trial in German, there’s a paragraph that reads:
His death sentence and conviction were overturned by Israel’s Supreme Court in 1993, saying there was reasonable doubt that he served at Treblinka. Demjanjuk returned to the U.S., regaining his citizenship. In 2002, a court again revoked it over his alleged role at Sobibor.
This doesn’t quite tell the whole story as Judge Alex Kosinski explained in Sanhedrin II:
What then troubled the court? Long after the trial, documents were obtained from the KGB’S files that contained statements of other Treblinka guards referring to the operator of the gas chamber as Marchenko; some gave a physical description that did not fit Demjanjuk; one noted that this person was known as Ivan the Terrible. The Israeli Supreme Court recognized that these documents were far less reliable than the proof the attorney general offered. The statements were taken by the KGB, never famous for adhering to Western notions of procedural regularity; the declarants were not subject to cross-examination or impeachment; there was no way of knowing how these statements were produced or whether they were authentic, making it hard “to rule out theoretical possibilities of tampering with the evidence in full or in part.” It is highly doubtful an American court would have admitted the statements had they been presented at trial, much less on appeal.
Even if the statements were admitted and believed, the Israeli Supreme Court recognized that nothing in them foreclosed the possibility of successive operators of the gas chamber named Ivan–one Demjanjuk, the other Marchenko. Nor was it out of the question that Demjanjuk, for whatever reason, called himself Marchenko at the time. The court noted that the statement of Dudek, the tavern-keeper, supports this hypothesis, as does the fact that Demjanjuk falsely listed his mother’s maiden name as Marchenko in his U.S. visa application. The court nevertheless felt it could not dismiss the KGB statements and could not come up with a satisfactory explanation for their existence. These statements, the court concluded, established a reasonable doubt about whether Demjanjuk was Ivan the Terrible.
In reaching this conclusion, the court adopted a standard much more rigorous than that normally employed in the United States. An appellate court here would look at the evidence in the light most favorable to the prosecution and ask itself whether a rational jury could have convicted; it would reverse only if the evidence absolutely required acquittal. This standard recognizes that not all the evidence presented in a criminal trial will fit into a neat, consistent pattern. In figuring out what happened, juries often discard pieces of the puzzle that don’t match up, such as testimony from the defendant’s mother that they were home together watching T.V. on the night of the crime. Such evidence certainly can create a reasonable doubt, but it can also be rejected as too improbable.
What the Israeli Supreme Court looked for here–and did not find–was “an additional layer of evidence,” something to explain away or refute the statements from the KGB files. Because the statements came into the record with none of the tethers that normally tie proof to the real world–no opportunity to cross-examine, no proof of authenticity, nothing at all that would make them reliable enough to be admitted under ordinary circumstances–it became virtually impossible for the prosecution to deal with them. Their very unreliability made them immune to attack.
The reasonable doubt resulted from the Israeli Supreme Court applying an extremely rigorous standard to evidence produced after the trial. This wasn’t a typical reasonable doubt.
Crossposted on Soccer Dad.
