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Local Attorney on Demjanjuk: 'We Never Got the Wrong Guy'

May 18, 2011 By:
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Eli Gabay

Shortly after Eli Gabay made aliyah, his boss in the State Attorney's Office in Jerusalem came to his desk with a large box filled with U.S. court proceedings against accused Nazi war criminal John Ivan Demjanjuk.

Israel was extraditing Demjanjuk, his boss said, but it wasn't likely to happen anytime soon, so the files could be read at leisure, remembered Gabay, who now practices civil litigation in Center City.

Four days later, the U.S. Supreme Court cleared the way for Demjanjuk's arrival. It was 11 a.m. on that day, Gabay remembered, when the state attorney himself ran into his office with the question that would launch the second Nazi trial in the country's history: "What's in the box?"

More than 20 years later, Gabay has the satisfaction of hearing that Demjanjuk was found guilty of assisting the Nazi party in killing more than 27,000 people who were sent to the Sobibor death camp during the short time he was stationed as a guard there.

But Gabay is still convinced that the 91-year-old former auto worker had a hand in shuttling at least 350,000 more to the gas chambers at Treblinka, a conviction that Israeli courts overthrew on appeal.

"We never got the wrong guy," he insisted.

Demjanjuk's guilt seemed obvious from those first transcripts, Gabay said, which laid out allegations of the Ukrainian POW's training as an SS guard, and his role in executing Jews at both Sobibor and Treblinka.

Gabay and his colleagues bolstered those documents with records from a Ukrainian guard and statements from a German doctor who placed Demjanjuk as working alongside them at Treblinka. They collected affidavits from survivors who identified him as "Ivan the Terrible," a notoriously brutal guard who "stabbed, shot and maimed and killed the Jews en route to the gas chamber," said Gabay.

"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."

The prosecutors believed that Demjanjuk had committed similar crimes at Sobibor, Gabay said, but elected not to pursue that in court because they simply couldn't find any survivors who remembered him being there.

It was a tactical decision, he said, "which came to haunt us later."

'Not to Be Forgotten'
Demjanjuk was sentenced to death in 1988 and remained in solitary confinement until 1993, when the Israeli Supreme Court overturned the verdict over questions about the evidence. The defense claimed that documents from the KGB proved that "Ivan the Terrible" was a different person with the last name Marchenko. Gabay contends that Demjanjuk may have purposefully hidden behind that name, which he once listed as his mother's maiden name.

Regardless, he said, at that time they didn't have enough evidence to open a new trial for Demjanjuk's crimes at Sobibor, not to mention the fear that it could be considered double jeopardy.

At least, he said, German prosecutors were able to recover additional documents to make that case now. Even if the 91-year-old criminal doesn't live to see out his latest appeal, justice has been served, concluded Gabay.

"He certainly pushed into the gas chambers women, children, the elderly, handicapped and everyone else," said the attorney. "His 91-year-old victims were not viewed any differently by him. We need to understand that the crimes of the Nazis are not to be forgotten or forgiven."

To that end, Gabay spoke earlier this month to 30 or so lawyers participating in a Yom Hashoah-themed continuing legal education symposium at Congregation Mikveh Israel; and again, the night before the verdict was announced, to Gratz Jewish Community High School students at Congregation Beth El in Yardley.

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