After four hours of delay—first the interminable wait in line, then screenings and pat-downs—I finally manage to enter Gerischtssaal 101. A windowless octagon with seats for 147 observers, its vaulted ceiling bears a Brutalist touch: massive decorative blocks of poured concrete loom overhead, seemingly ready at any instant to jar loose and crush anyone sitting below.
The courtroom is abuzz with correspondents from around the globe hustling to interview Nazi-hunting luminaries and other leading members of the European Jewish community. Serge Klarsfeld, the Frenchman who helped capture and prosecute Klaus Barbie, chats with Efraim Zuroff, director of the Simon Wiesenthal Center’s Jerusalem office, the world’s leading organization for tracking Nazi fugitives, which had listed Demjanjuk at the top of its most-wanted list. Journalists hover close by, scribbling down snippets of their conversation.
The chatter in Gerichtssall 101 dies down as a door at the side of the chamber swings open. Flanked by two medical orderlies and a court-appointed doctor, the defendant is maneuvered into the courtroom in a wheelchair. A sky blue blanket drawn to his chin covers his legs and body, and a blue baseball cap juts low over his brow. His eyes are closed—it’s unclear whether he is asleep or just fending off the explosion of camera flashes. Photographers, cameramen and videographers clamor in front of the wheelchair, shooting away in a frenzy, as if Gisele Bündchen had just sashayed into the Munich courtroom. Demjanjuk’s mouth hangs open; he appears to mutter words or moan in pain. Cameras flash. A helpless octogenarian, wheelchair-bound, grimacing before a relentless onslaught of publicity: it is not a sight to burnish the criminal justice system’s reputation. The blanket briefly slips from Demjanjuk’s feet, revealing a pair of incongruously jaunty Puma sneakers.
At 11:15 three robed judges, accompanied by two “jurors” and two alternatives, shuffle into the courtroom and find their places behind a raised semicircular table of dark walnut. We are instructed to take our seats, and the presiding judge, a bald 60-year-old jurist named Ralph Alt, politely calls the court to order. “I apologize in advance for the delay,” he begins. “We were unable to calculate the length of the entrance procedure.” Derisive laughter ripples through the audience.
Bearded and bespectacled, Alt is soft-spoken and seemingly unaccustomed to speaking into a microphone, pressing the “on” button with needless vigor. A passionate chess player, he is known as a thorough, intelligent jurist with a strong understanding of white-collar crime. But he has never before presided over a trial involving Nazi-era crimes, least of all one attracting international attention.
Through the entirety of the Demjanjuk trial, he will remain intent on treating it like any other criminal case before an ordinary German court. Whatever the shortcomings of such an approach—shortcomings revealed in the court’s very failure to plan for the first day’s throngs—they can hardly be described as idiosyncratic. Since the Federal Republic’s assumption of sovereignty, its legal system has tenaciously insisted that Nazi atrocities be treated as ordinary crimes, requiring no special courts, procedures or laws to bring their perpetrators to justice.
It is an approach that will be tested, challenged and attacked at every turn by Demjanjuk’s defense. No sooner has Judge Alt apologized for the logistical snafu than Demjanjuk’s chief counsel, a towering, bearded and choleric criminal defense lawyer from Ratingen (on the outskirts of Dusseldorf) named Ulrich Busch, is on his feet. The indictment has not even been read, and Busch is seeking dismissal on the grounds of Befangenheit—prejudice.
While motions alleging prejudice typically are brought against a specific judge for harboring a personal bias against the defendant, Busch’s opening salvo is directed against the entire German judicial system. It is an accusation he will repeat over and over: the German legal system is trying to make good on its pathetic record of dealing with Nazis by trying a man who is not a German and was never a Nazi. The charges against his client, Busch angrily declaims, represent a moral and legal double standard, a distortion of history and a bald violation of the German constitution. What of all the SS higher-ups who were either acquitted or never even charged in the first place? Let us not forget, Busch cries, that his client was taken as a prisoner of war by the Wehrmacht. The killing of Red Army POWs was the first Holocaust! Ukrainian auxiliaries and death camp guards had no more freedom of action than the Jews themselves! His client was never on the radar of German prosecutors until Americans forced them to take the case. New standards are being used against his client. The rules of the game are being changed.
Busch’s words tumble forth in seemingly tone-deaf fashion, and the parallel he draws between his client and the Jewish victims of genocide leaves spectators and journalists alike murmuring their disapproval. But his opening barrage clearly outlines the defense’s strategy, which is to challenge the very legitimacy of the proceeding at the most fundamental level.
In normal criminal trials, the law operates in a safe zone in which the motives and purposes of the prosecution and the rationale for the imposition of a sanction remain beyond the terms of dispute. Criminal law draws a line between violence permitted by the state in the form of a punishment and violence prohibited by the state as a delict; and in the overwhelming majority of criminal cases, this distinction is never called into question—nor is the state’s authority to draw it. Not so with political trials. Political trials blur the distinction between state-authorized and state-prohibited force; they interrogate the purposes and procedures of prosecution. Busch will seek to unmask the proceeding as a political trial, attacking at every turn the motives, purpose, justification and fairness of the case.
Clamorous disorder; the dramatic entrance of a suffering, wheelchair-bound defendant; and an inflammatory opening challenge by the defense: It is 11:50 a.m. Little more than half an hour old, the trial has already delivered exactly what a global news cycle craves from a legal spectacle.