November 18, 1993
Excerpts From Ruling on
Demjanjuk Special to The New York
Times WASHINGTON, Nov. 17 - Following are
excerpts from today's opinion by the
United States Court of Appeals for the
Sixth Circuit, in Cincinnati, in the case
of Demjanjuk v. Petrovsky. The opinion was
written by Senior Judge Pierce
Lively, who was joined by Chief Judge
Gilbert S. Merritt and Damon J.
Keith. Reference to the report of the
special master is to an earlier review of
the case by Judge Thomas A. Wiseman
Jr. of Federal District Court in
Nashville. The question
before the court is whether attorneys
in the Office of Special Investigations
(O.S.I.), a unit within the Criminal
Division of the Department of Justice,
engaged in prosecutorial misconduct by
failing to disclose to the courts and
to the petitioner exculpatory
information in their possession during
litigation culminating in extradition
proceedings, which led to the
petitioner's forced departure from the
United States and trial on capital
charges in the State of Israel. [...]. Demjanjuk's claims of misconduct
consisted of the Government's failure to
disclose information that pointed to
another Ukrainian guard at Treblinka,
Ivan Marchenko, as "Ivan the
Terrible." Demjanjuk's denaturalization
and deportation orders were based on his
alleged misrepresentations concerning his
wartime whereabouts and activities at the
time he applied for entry into the United
States as a displaced person and in his
application for citizenship.
[...] The attitude of the O.S.I. attorneys
toward disclosing information to
Demjanjuk's counsel was not consistent
with the Government's obligation to work
for justice rather than for a result that
favors its attorneys' preconceived ideas
of what the outcome of legal proceedings
should be. The master found that the
O.S.I. attorneys operated on the premise
that Demjanjuk was Ivan the
Terrible and that this belief caused
them to be "inadequately skeptical" of
their case when confronted with evidence
pointing to Marchenko as Ivan
Grozny. We do not believe their personal
conviction that they had the right man
provided an excuse for recklessly
disregarding their obligation to provide
information specifically requested by
Demjanjuk (as found by the master) the
withholding of which almost certainly
misled his counsel and endangered his
ability to mount a defense (as found by
the master). The O.S.I. attorneys acted with
reckless disregard for their duty to the
court and their discovery obligations in
failing to disclose at least three sets of
documents in their possession before the
proceedings against Demjanjuk ever reached
trial. 1. The Fedorenko Protocols shouId have
been disclosed. They consisted of
information provided by a foreign
government that supplied some support to
Demjanjuk's basic claim from the beginning
- that he was a victim of
misidentification. The statements of the
two former guards at Treblinka identified
one of the Ukrainians who operated the gas
chambers as "Marchenko." [...] 2. The list of Ukrainian guards at
Treblinka furnished to OS.I. by the Polish
Government was certainly exculpatory.
[...] 3. Otto Horn's identification of
Demjanjuk as Ivan Grozny from photo
spreads was extremely important Government
evidence at the denaturalization trial.
Horn was a German guard who had been
stationed at Treblinka. He was tried for
war crimes In 1964 or 1965 and acquitted.
His evidence was presented in the
denaturalization proceedings in the form
of a videotaped deposition taken in Berlin
on Feb. 26, 1980. Demjanjuk's counsel objected to
testimony on the videotape concerning the
identification from photographs on the
specific ground that O.S.I. personnel had
visited Horn three months earlier, in
November 1979, and conducted a photo
identification procedure in the absence of
Demjanjuk's attorneys. Moscowitz
responded that Demjanjuk's counsel had
full opportunity to cross-examine Horn
when the deposition was taken in 1980. What neither Judge Battisti nor
Demjanjuk's counsel knew was that the
contemporaneous reports of the 1979 Horn
interview by the O.S.I. investigator and
historian directly conflicted with Horn's
testimony at the deposition that when he
finally identified Demjanjuk's photograph
in the second spread he could not see the
first set of pictures. [...] Thus, we hold that the O.S.I. attorneys
acted with reckless disregard for the
truth and for the Government's obligation
to take no steps that prevent an adversary
from presenting his case fully and fairly.
This was fraud on the court in the
circumstances of this case where, by
recklessly assuming Demjanjuk's guilt,
they failed to observe their obligation to
produce exculpatory materials requested by
Demjanjuk. [...] It is obvious
from the record that the prevailing
mindset at O.S.I. was that the office
must try to please and maintain very
close relationships with various
interest groups because their continued
existence depended upon it The "win at any cost" attitude
displayed by some of these record
documents and statements contrasts sharply
with the attitude and actions of the
Israeli prosecutors, who were under
domestic political pressures themselves.
But for the actions of the Israeli
prosecutors, the death sentence against
Demjanjuk probably would have been carried
out by now. He would have been executed on
charge for which he has now been
acquitted. The Israeli prosecutors did not learn
of the exculpatory evidence from Russia
until after the accused was found guilty
and sentenced to death in the Israel trial
court. ... Instead of withholding the
information, the prosecutors traveled to
Russia to investigate the matter
thoroughly. They marshaled the exculpatory
evidence, brought it back to Israel, and
in the face of extremely strong popular
feelings against the accused, publicly
turned it over to the Supreme Court of
Israel. Basically, the Israeli prosecutors
confessed error in the face of intense
political pressure to get a
conviction. |