Jail time uncertain in Nazi death camp conviction

May 13, 2011 - 2:29 AM
APTOPIX Germany Demjanjuk

John Demjanjuk leaves the court room in Munich, southern Germany, Thursday, May 12, 2011. The court has ordered John Demjanjuk released pending an appeal of his conviction as an accessory to murder at a Nazi death camp. (AP Photo/Matthias Schrader)

CLEVELAND (AP) — A retired U.S. autoworker who was ruled to have been a guard at a Nazi death camp and convicted in Germany of thousands of counts of being an accessory to murder will be free pending an appeal, and his health may keep him from serving time at all.

The decades-old case of John Demjanjuk, 91, will remain before the courts for the foreseeable future as his lawyers appeal his conviction Thursday, but he won't be locked up.

The appeal will take at least a year, said Rabbi Marvin Hier, founder of the Nazi-hunting Simon Wiesenthal Center, which is based in Los Angeles. At that point, Hier added, Demjanjuk's health may not allow putting him in prison. Demjanjuk, who suffers from a variety of ailments and has been imprisoned during the trial, needs daily medical attention.

"It doesn't seem likely that Demjanjuk will actually serve any more time in the end," said Hier.

The Ukraine-born Demjanjuk was a Soviet Red Army soldier captured by the Germans in 1942. He is accused of then agreeing to serve as a guard, but Demjanjuk has always maintained he was a victim of the Nazis.

He emigrated to the U.S. after the war, claiming to have spent much of it in a German POW camp. He became a U.S. citizen, but his citizenship was revoked in 1981 because the Justice Department alleged he was the notoriously brutal Nazi death camp guard "Ivan the Terrible."

He was extradited to Israel to stand trial, convicted and sentenced to death but freed when a court there overturned the ruling, saying the evidence showed he was the victim of mistaken identity. He returned to the U.S. and regained his citizenship briefly, then was deported again after German prosecutors issued a warrant for his arrest in 2009.

Demjanjuk was found guilty Thursday of 28,060 counts of being an accessory to murder, one for each person who died during the time he was ruled to have been a guard at the Sobibor camp in Nazi-occupied Poland. He was sentenced to five years in prison before he was ordered released pending an appeal, which is common in Germany.

One avenue for appeal may be a 1985 FBI report recently uncovered by the AP that challenged the authenticity of a Nazi ID card used as evidence in the German trial.

This week, a federal judge in Cleveland appointed a public defender to represent Demjanjuk and indicated the ID card could be used to reopen his citizenship case.

David Leopold, an immigration attorney in Cleveland, said he doubted the FBI report would help Demjanjuk because there was other evidence against him. In either case, Leopold said, "He's not coming back here if he's not a citizen."

The public defender, Dennis Terez, hasn't indicated how he might proceed on the ID card issue. He didn't respond to an email seeking comment Thursday.

Allowing Demjanjuk to remain free pending appeal may help the Germans avoid having him die in prison, said Michael Scharf, professor of law at Case Western Reserve University in Cleveland.

"They are very concerned about that," he said.

Charges of accessory to murder carry a maximum term of 15 years in Germany, which does not allow consecutive sentences for multiple counts of the same crime.

Defense attorney Guenther Maull said it wasn't yet clear where Demjanjuk would go once he is freed, but he was likely to be hosted by the Ukrainian community in Munich.

Demjanjuk's family welcomed news of his release pending appeal.

"We're relieved that he is not going to any longer have to be in a prison," his son, John Demjanjuk Jr., told The Associated Press in an interview at his home in Richfield, Ohio.

Though scores of Nazi war criminals have been tried and convicted in Germany, in this case there was no evidence that Demjanjuk committed a specific crime.

His prosecution was based on the theory that if Demjanjuk was at the camp, he was a participant in the killing — the first time such a legal argument was made in German courts.

Despite Demjanjuk's impending freedom, the conviction was an "important victory for justice," said Efraim Zuroff, the chief Nazi hunter at the Simon Wiesenthal Center, said in a telephone interview from Jerusalem.

"The verdict sends a very powerful message that, even many years after the crimes of the Holocaust, the perpetrators can be brought to justice," he said. "We're hopeful that this verdict will pave the way for additional prosecutions in Germany."

Presiding Judge Ralph Alt in Munich said Demjanjuk was a piece of the Nazis' "machinery of destruction."

"The court is convinced that the defendant ... served as a guard at Sobibor from 27 March 1943 to mid-September 1943," Alt said, closing a trial that lasted nearly 18 months.

Demjanjuk sat in a wheelchair as the judges announced their verdict, showing no reaction. He has denied the charges but declined to make a final statement to the court.

Demjanjuk's son said the defense would appeal. He asserted that "the Germans have built a house of cards and it will not stand for long."

In Cleveland, Bea Berger, 88, a camp survivor who lost her mother, her sister, her brother-in-law, a niece and a nephew in the Holocaust, said years of jail time would be "a death sentence" for the aging Demjanjuk.

Still, she said, "He deserves to be hung."

But Lana Barkov, editor of a Ukrainian newspaper in Cleveland, said the Ukrainian-American community would see the verdict as Germany trying to shift the blame for the Holocaust.

"They are trying to absolve themselves of a crime, a blame, a shame, and put it on the shoulders of others," she said.

Somerset, N.J.-based Archbishop Antony of the Ukrainian Orthodox of the USA, a longtime Demjanjuk supporter, said he is helping to find a home for Demjanjuk. His supporters hope he's allowed to return to the U.S., Antony said.

"I would hope the government would show some mercy; he's paid his dues," he said.

Antony said support in the Ukrainian community for Demjanjuk remains strong. "I don't know anyone who really believes the man has any guilt at all," he said.

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Associated Press writers David Rising and Andrea M. Jarach in Munich; Geir Moulson in Berlin; Meghan Barr in Richfield, Ohio; and David Porter in Someret, N.J.; contributed to this report.