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 Posted Tuesday, July 27, 1999

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"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."

- Finding of a 3-judge panel reviewing O.S.I.-directed extradition proceedings against John Demjanjuk, The New York Times, November 18, 1993

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.

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