MUNICH – A Munich court was poised to deliver its verdict Thursday in the case of John Demjanjuk, the retired Ohio autoworker accused of having served as a Nazi death camp guard during World War II, with a ruling that could set new precedent in German law.
The verdict will close the latest chapter in more than 30 years of legal wrangling but will not bring it entirely to an end, with ongoing court action in the United States and the defense pledging to appeal if the 91-year-old is found guilty.
Defense attorney Ulrich Busch sounded a pessimistic note during a break in his final day of closing arguments Wednesday, noting that judges at the time were already talking about issuing the verdict the very next day.
"They have their verdict, they don't listen to what I'm saying," Busch told The Associated Press.
Ukrainian-born Demjanjuk is the lowest-ranking person to go on trial for Nazi crimes in World War II.
There is no evidence he committed a specific crime. Instead he is charged with 28,060 counts of accessory to murder for the number of people who died in the time span he was allegedly a Sobibor camp guard on the theory that if he was there, he was a participant — the first time such a legal argument has been made in German courts.
"If the prosecution is successful, and if there is a verdict for accessory to murder because one was a guard in a camp where many people were killed, it could be a beginning of new last wave of many (such) proceedings," said Cornelius Nestler, a lawyer for families of Sobibor victims who joined the trial as co-plaintiffs as allowed under German law.
In the 1980s, Demjanjuk stood trial in Israel accused of being the notoriously brutal guard "Ivan the Terrible" at the Treblinka extermination camp. He was convicted, sentenced to death — then freed when an Israeli court overturned the ruling, saying the evidence showed he was the victim of mistaken identity.
Demjanjuk maintains he was a victim of the Nazis — first wounded as a Soviet soldier fighting German forces, then captured and held as a prisoner of war under brutal conditions before joining the Vlasov Army, a force of anti-communist Soviet POWs and others was formed to fight with the Germans against the Soviets in the final months of the war.
But prosecutors say that after his capture, the evidence shows Demjanjuk agreed to serve the German SS and was posted to Sobibor in Nazi-occupied Poland.
Demjanjuk is accused of having served as a "Wachmann," a guard, the lowest rank of the "Hilfswillige" volunteers who were subordinate to German SS men.
Integral to the prosecution's case is the an SS identity card that allegedly shows a picture of a young Demjanjuk, and indicates he trained at the SS Trawniki camp and was posted to Sobibor.
Though court experts have said the card appears genuine, the defense maintains it is a fake produced by the Soviet KGB.
The U.S. Department of Justice's Office of Special Investigations also has said the card is genuine, but documents unearthed by the AP and brought to light in a story last month indicate that the FBI had doubts similar to those aired by Demjanjuk's defense about the evidence — though the material was never turned over to them.
In a 1985 report, the FBI's Cleveland, Ohio, field office concluded that: "Justice is ill-served in the prosecution of an American citizen on evidence which is not only normally inadmissible in a court of law, but based on evidence and allegations quite likely fabricated by the KGB."
The revelation has led to new court action in the U.S., with a District Court judge in Cleveland on Tuesday agreeing to appoint a public defender to represent Demjanjuk there, raising the prospect of renewing the decades-old case.
"Fact is, the Germans are preparing a verdict based upon U.S. government fraud which, if necessary, will not survive German or U.S. judicial review," Demjanjuk's son, John Demjanjuk Jr., told the AP in an email.
If convicted, Demjanjuk faces a possible 15-year sentence, though he could be given credit for some or all of the seven years he spent behind bars in Israel.
Taking into account his time already in custody, prosecutors have recommended a six-year sentence.
Busch has previously said that with the time spent in custody in Israel, Germany and the U.S. adding up to more than 10 years — more than 2/3 the maximum sentence — he should be immediately set free especially in view of his age.
But Demjanjuk, who is now stateless, has nowhere to go.