John Demjanjuk died March 17 as he had lived much of the last 35 years of his life: in the shadow of the courts. And his legal afterlife is likely to see his friends and lawyers trying to wrest him from judicial limbo.
At the time of his death, the accused Nazi war criminal from Seven Hills, Ohio, still had two appeals pending. One is in a German court that on May 12 convicted him of being an accessory to the murder of 27,900 Jews in the Sobibor concentration camp. It sentenced him to five years in prison with credit for approximately two years already served. Just shy of 92, Demjanjuk succumbed to bone-marrow disease, chronic kidney disease and old age while residing in a Bavarian nursing facility where the court placed him because of his ailments and pending further proceedings. As of now, he is both guilty and innocent, it seems. "The verdict exists it is not voided. It was pronounced and based in fact," said Munich state-court spokeswoman Margarete Noetzel of the judgment last year. Yet under German law, because Demjanjuk died before his final appeal could be heard and because a person is presumed innocent until ultimately proved guilty, he is still technically presumed innocent.
In the U.S., Demjanjuk's attorneys continue to pursue an appeal on the basis of their claim that the FBI defrauded the courts by withholding classified information since the early 1980s. Additionally, Demjanjuk's defense attorneys say they were never allowed to cross-examine FBI witnesses who had given depositions about that evidence.
Furthermore, no matter what the courts have found, the court of public opinion remains divided on Demjanjuk's convoluted legal odyssey. Ed Nishnic, who scoured Europe, Ukraine and Russia in the 1980s and '90s to find evidence that would clear his former father-in-law, says, "I hope all of the issues will be resolved in the courts, but this battle won't end until the truth is completely exposed." Nishnic married Demjanjuk's daughter Irene in 1983, but the couple divorced in 2005 after she fell out with her father. Incensed by what he considered a travesty of justice, Nishnic continued to support Demjanjuk.
Nishnic remains committed to proving Demjanjuk's innocence however possible. "If it doesn't happen in the courts, then I will do what I can to publicize the truth behind this case," he says. He plans to write a book that will lay out the defense of Demjanjuk and describe his own exploits in chasing down what he believes is the truth, including the time he says he discovered dozens of garbage bags filled with evidence that the FBI tried to throw out. The authorities, he says, "knew John was not guilty before they started the circus against him in 1977. So people need to know the whole story, not just the incomplete versions they've read in the paper or seen on television."
Helen Sawchak, a first-generation Ukrainian in Cleveland, says many Ukrainian Americans believe the U.S. government's zealous pursuit of Demjanjuk was excessive. "If he did do it, he sure didn't do it on his own but was forced by the Nazis. It was a waste of money to put this man and his family through all of this, and what have they really proved?"
The latest U.S. appeal was filed in response to a letter dated March 4, 1985, from the Cleveland office of the FBI to the bureau's director. A copy of the once-secret letter was later redacted and placed in the U.S. National Archives, where Associated Press reporters discovered it and published an article in April 2011 during closing arguments of Demjanjuk's last trial. The recently declassified version reveals the FBI's suspicions about the KGB's motives for forging key documents, like concentration-camp ID cards, that the government had submitted as evidence to prove that Demjanjuk worked at those camps. On Dec. 20, Federal District Court Judge Dan Aaron Polster denied the appeal because he felt the internal FBI documents were speculative and not exculpatory or to the benefit of the defendant.
Dennis Terez, a federal public defender in Ohio's northern district, then appealed that ruling with the Sixth Circuit Court. "We want the court to recognize that by at least 1985, the FBI was alerting a variety of parties to the fact that they had concerns that this case was based on fraudulent evidence from the KGB," he says. Terez is scheduled to submit appeal briefs to the Sixth Circuit Court on April 12. He is unsure, however, whether the court will continue or dismiss the case.
Born Iwan Demjanjuk in Ukraine in 1920, Demjanjuk and his family endured the brutal conditions caused by Soviet collectivization. He was drafted into the Soviet Army in 1940 and was captured by German soldiers two years later. There is inconclusive and conflicting evidence about where he spent the next three years, but much of it was in various concentration camps, where he said he was forced to work as a guard. Following Germany's surrender in 1945, he was taken by American forces to several displaced-persons camps. In 1952 he obtained a visa and moved to the U.S., eventually ending up in Cleveland, where he worked at the Ford Motor plant until he retired 30 years later. He became a naturalized U.S. citizen in 1958.
Demjanjuk's legal troubles began in 1977, when the government initiated a proceeding to denaturalize him. It charged that he illegally obtained his citizenship by denying that he had served as a guard in the camps from 1942 to 1945.
Evidence presented by the Department of Justice's Office of Special Investigations alleged that he was "Ivan the Terrible," a gas-chamber operator at Treblinka who was feared for his savage cruelty. The trial resulted in Demjanjuk's denaturalization in 1981 and his subsequent extradition to Israel for trial. In April 1988 an Israeli court sentenced him to death by hanging. However, the Israeli Supreme Court chose to give greater weight to evidence from the Soviet Union and from purported eyewitness testimony by Ukrainian guards at Treblinka that another man was Ivan. Demjanjuk was then acquitted in July 1993. A subsequent U.S. court ruling that the government had failed to disclose important evidence enabled him to return home.
In 1998, Demjanjuk regained his U.S. citizenship when the Sixth Circuit Court found that prosecutors had "acted with reckless disregard" in failing to disclose exculpatory evidence. A year later, however, the government filed a second denaturalization proceeding against Demjanjuk, alleging that he had persecuted civilian prisoners at the Trawniki, Majdanek, Sobibor and Flossenburg concentration camps but not Treblinka. The trial led to his second denaturalization in 2002 and another deportation in 2009, this time to Germany.
On March 19, Demjanjuk's attorney Ulrich Busch appealed to German authorities to arrange for his body to be returned to Ohio for burial. The dead man's son John Demjanjuk Jr. responded to concerns from Jewish groups and others that his father's gravesite might turn into an extremist shrine by telling the Associated Press, "Over the past 35-plus years, our family has had no association with any part of the neo-Nazi groups, ever. We have condemned Nazi crimes as my father is himself a victim of the Nazis, regardless of whose version of the case you believe."