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Newsgroups: alt.revisionism
Subject: Demjanjuk Case - U.S. Court of Appeals (3 of 17)
Followup-To: alt.revisionism
Organization: The Nizkor Project http://www.nizkor.org
Keywords: Sobibor,Treblinka,Demjanjuk

Archive/File: pub/people/d/demjanjuk.john/circuit-court/appeal-order.03
Last-modified: 1996/03/07

III.

   The Special Master was disturbed by the fact that the
government attorneys continued to be less than forthcoming
with materials from foreign sources after agreeing at a
pretrial hearing in the denaturalization case that the
government had superior access to such materials and should
make every effort to obtain them and furnish them to the
defense.

A.

   Undisclosed materials from the former Soviet Union and
Poland form the principal basis for Demjanjuk's contention
that OSI attorneys engaged in misconduct that amounted to
fraud. The Supreme Court of Israel reversed Demjanjuk's
conviction as Ivan the Terrible and acquitted him based
largely on statements of Ukrainian guards at Treblinka who
clearly identified Ivan Marchenko as Ivan the Terrible. The
Israeli Supreme Court found that these statements raised a
reasonable doubt as to Demjanjuk's guilt even though
eighteen Jewish survivors of Treblinka and one German guard
there had identified him as "Ivan the Terrible" from
photographs made in 1942 and 1951.

   The government did not have all of the statements relied
upon by the Israeli Supreme Court in its possession during
the various proceedings against Demjanjuk in this country.
Some of the statements came from Russian and Ukrainian
sources after the breakup of the Soviet Union. Demjanjuk
maintains, however, that during its investigation prior to
the denaturalization trial the
government did obtain from official sources in the Soviet
Union and Poland documents and statements that should have
raised doubts about Demjanjuk's identity as Ivan the
Terrible, and some of which named Marchenko as the wanted
"Ivan." Because the OSI attorneys consistently followed an
unjustifiedly narrow view of the scope of their duty to
disclose, and  compartmentalized their information in a way
that resulted in no investigation of apparently
contradictory evidence, Demjanjuk and the court were
deprived of information and materials that were critical to
building the defense.

B.

   We briefly describe the claims related to five of these
undisclosed documents and groups of documents, indicating
with parentheses the date each came into the possession of
one or more attorneys at OSI:

   1. The Fedorenko Protocols (1978)

This evidence consists of statements received from the
former Soviet Union including the statements of two former
Treblinka guards, Malagon and Leleko, who discussed the
presence of a gas chamber motorist named Marchenko. Both the
Leleko and Malagon statements are by Treblinka guards who
demonstrate great familiarity with the operations and the
operators of the gas chambers of Treblinka.

They both name a man other than the accused as the
notoriously cruel "Ivan the Terrible" who ran the motors of
the gas chambers. Excerpts from the Leleko and Malagon
statements are annexed to this opinion as Appendices 3, 4
and 4-A respectively. Also accompanying this evidence was a
list of guards transferred out of the Trawniki, Poland
training camp on which Demjanjuk's name did not appear. The
survivors identified Ivan the Terrible as one of the
Ukrainian operators of the Treblinka gas chambers
("motorist"), who was especially cruel and committed
atrocities upon the Jewish victims as he herded them into
the lethal chambers.

   2. The Danilchenko Protocols (1979)

This evidence consists of statements received from the
former Soviet Union including a second statement from the
former Treblinka guard Malagon who stated that an "Ivan
Demedyuk  or Ivan Dem'yanyuk" worked at Treblinka as a cook,
that a guard named Marchenko operated the gas chambers, and
who stated that the man he knew as "Ivan Demedyuk or Ivan
Dem'yanyuk" was not pictured in the photospread shown to
him. Jt. App. 178, 179. Danilchenko, a guard at the
Sobibor, Poland death  camp, stated that Demjanjuk was a
fellow guard at Sobibor and that they were transferred from
Sobibor to Flossenburg, Germany together. Respondent's
Appendix 221-22. Although these statements are inculpatory
to the extent they place Demjanjuk at the Sobibor and
Flossenburg concentration camps, Demjanjuk contended that he
was entitled to have them
produced because they were exculpatory with respect to the
Treblinka "Ivan" claims and would permit him to refute the
claim that he was at Sobibor and Flossenburg.

   3. The Dorofeev Protocols (1980)

This evidence received from the former Soviet Union consists
of statements of five Soviets who served at the Trawniki,
Poland training camp for guards. Only one individual
recalled the name Demjanjuk and although he identified two
of Demjanjuk's photos in a three-photograph photospread, he
qualified his identification by stating that his
recollection  of Demjanjuk was poor.

Three of the others stated that transfers between camps were
routed through Trawniki which served as a distribution
center. Jt. App. 155. Again, this
evidence has both inculpatory and exculpatory elements, but
Demjanjuk argued
that he was entitled to the statements demonstrating that
four of the five
Trawniki witnesses were unable to identify him and that the
fifth was very
tentative.

   4. "Polish Main Commission" List (1979)

This evidence consists of an article published by the Polish
Main Commission, a government body, which partially lists
names of known guards at Treblinka. The name Ivan Marchenko
appears on the list. Demjanjuk's name does not appear on the
list. The Commission conducted an official investigation of
the activities carried on at Treblinka in connection with a
more extensive investigation of Nazi war crimes in Poland.
Jt. App. 502, 556. At the time OSI received this list of
more than 70 names containing Marchenko's name, but not that
of Demjanjuk, it already had Leleko's statement identifying
"Nikolai" and Marchenko as two different people who operated
the gas chambers. (Nikolai was identified in documents later
received from former  Soviet sources as Nikolai Shalayev,
who gave a statement in 1950 that he and Marchenko were the
two gas chamber operators. This evidence was admitted by the
Israeli Supreme Court.)

Demjanjuk contended that any attorney considering the Polish
list in combination with the Leleko statement would have
realized that information from foreign governments pointed
to Marchenko, not Demjanjuk, as Ivan the Terrible and should
have produced them in response to Questions 1 and 2.


An OSI attorney, George Parker, who was lead counsel in the
denaturalization case prior to his resignation in 1980,
prepared extensive notes describing and commenting on the
evidence in that case sometime before the trial. Jt. App.
152, 167. In those notes he stated that Leleko had named
"Nickolay" and Marchenko as motorists and that Marchenko had
sword-cut women's breasts, one of the atrocities charged
against Demjanjuk as Ivan the Terrible. Before the Special
Master, Parker testified that he did not make the
connection, because Malagon's statement indicated that
Nikolai or Nickolay was Marchenko's first name. Thus, the
other guard was Ivan, and, he believed, Demjanjuk.
Transcript, Nov. 12, 1992, at 80.

   5.   Otto Horn Interview Memoranda (1979)

This evidence consists of "Reports of Interview" from an OSI
investigator, Bernard Dougherty, and a historian, George
Garand, written in 1979 contemporaneously with an interview
of Otto Horn, a former SS guard at Treblinka, at which Horn
identified Demjanjuk as a Treblinka guard. Although Horn
identified Demjanjuk in a photospread, the investigator and
historian both wrote in separate memoranda that this
identification occurred only after Horn noted that
Demjanjuk's photo appeared in both of the two photospreads
and while Demjanjuk's photo from the first photospread lay
facing up during his examination of the second photospread.
Horn later testified that the photo in the first spread was
not visible to him when he made the identification from the
second.


These memoranda were addressed to Arthur Sinai, Deputy
Director of OSI. A routing slip from Sinai directed "Stacey"
to make two copies of one of these reports and forward one
to Norman Moscowitz. Jt. App. 586. At that time Moscowitz
was working with Parker on the Demjanjuk denaturalization
case. He became lead counsel following Parker's resignation,
and actually tried the case.

The statements were not produced to Demjanjuk or disclosed
to the district court in the denaturalization proceedings
when that court received a videotaped deposition of Horn
taken some time after the initial identification from the
two photospreads. In the videotaped deposition Horn stated
that he did not see the two photospreads at the same time--
that the first one was put away out of his sight before he
examined the second one. The district court stated that it
found
"no aberrations in the conduct of these identifications
which may be said to detract from the identifications Horn
made." 518 F. Supp. at 1372.

Moscowitz testified before the Special Master that he did
not read the investigator and historian's reports prior to
the denaturalization trial, although he did not deny
receiving them. Transcript, Jan. 14, 1993, at 91-93.
Demjanjuk claims that the OSI attorneys committed misconduct
and fraud on the court in presenting Horn's videotaped
identification testimony without producing
the reports that detailed a highly suggestive identification
procedure. Relevant portions of the Dougherty and Garand
reports are annexed to this opinion as Appendices 5 and 6,
respectively.

C.

   There is a further consideration with respect to the
Fedorenko Protocols. Following the district court's judgment
in the denaturalization case, Norman Moscowitz who was then
chief trial counsel in that case, wrote a letter to
Demjanjuk's counsel, John Martin, with a copy to the trial
judge. Jt. App. 147.

In this letter Moscowitz stated that documents had been
received from the Soviet Union (the Dorofeev Protocols) just
before trial and that OSI, for various reasons, had not
disclosed or produced them to Demjanjuk's counsel. The
letter characterized these materials as "further
incriminatory information and support for the government's
case." The letter also stated that Demjanjuk was being
advised of the existence of these documents in order to make
"the record of discovery complete."

   Demjanjuk filed a motion for a mistrial, which the
district court treated as a motion for a new trial. The
district court held a hearing on the motion on May 4, 1981.
Demjanjuk's attorneys argued that the Dorofeev information
would have been valuable to the defense, that four of the
five former Trawniki guards had failed to identify Demjanjuk
while only one had identified  him.

Counsel asserted that it would have been important for the
defense to contact these men, particularly to learn if they
had been issued identification badges like the "Trawniki
card" relied upon by the government. The expert witness at
the trial who had testified that the card appeared to be
authentic had stated that the one exhibited there was the
only one he had ever seen, though he was a Holocaust
historian.

   The government argued that it had no agreement or duty to
supplement answers to interrogatories and requests. Even if
there was a duty to produce the documents, the government
asserted, Demjanjuk was not prejudiced by this oversight.
During the government's argument, attorney Moscowitz told
the court that he was perfectly willing to give the defense
the witness' statements "as everything else." At this time
Demjanjuk's counsel only had the letter
describing the contents of the statements, not the Dorofeev
statements themselves.

   Chief Judge Battisti ruled that the government had a duty
to provide the names of the five witnesses before or during
the trial. He then ordered government counsel to turn  over
copies of the statements to the defendant and to the court,
and recessed   the hearing until Demjanjuk's
counsel and the court had an opportunity to review them.
Following the recess, the district court heard further
argument and then asked for briefs from the parties before
adjourning the hearing. Jt. App. 767. The court ultimately
ruled that the Dorofeev materials were cumulative and in
fact supported the government's arguments that Demjanjuk had
been at Trawniki and that Trawniki was a training center for
guards assigned to all of the extermination camps, including
Sobibor as well as Treblinka. 518 F. Supp. at 1384-86.

   Demjanjuk argues that, given the district court's ruling
that the government had a duty to disclose and produce the
Dorofeev Protocols, Moscowitz should have realized that the
same duty applied to the Fedorenko Protocols, which also
came from the Soviet Union. Though Moscowitz represented
that his post-trial letter disclosing the existence of the
Dorofeev Protocols was written in order to make the record
of discovery complete, he still did not disclose or produce
the Fedorenko documents, which had been in OSI's possession
since 1978.

   In his testimony before the Special Master, Moscowitz
admitted reading the
Fedorenko  documents prior to the denaturalization
proceedings. Neither
he nor Parker, who also read them, felt that they supplied
any help in the
Demjanjuk cases. According to the master, these documents
disappeared in the
winter of 1981 after the denaturalization trial and only
resurfaced in 1991 in
response to a Freedom of Information Act case by Congressman
James Traficant of
Ohio. At oral argument before this court, government counsel
stated the
Fedorenko documents didn't actually disappear: "They were
just put back in the
Fedorenko files. They came with the Fedorenko case and when
the Demjanjuk case
was over, they went back to their Fedorenko file."

   It is hard to credit this explanation. The Fedorenko
file, particularly the Leleko and Malagon statements,
contain significant evidence tending to show that a person
other than Demjanjuk was in fact "Ivan the Terrible of
Treblinka." The record contains copies of a letter dated
October 23, 1978, from the General Counsel to Martin
Mendelsohn, chief of litigation in the "Special Litigation
Unit" (SLU) of the Department of Justice, predecessor to
OSI. Jt. App. 215-17. The letter discusses the necessity of
winning the Demjanjuk case, and has as attachments all of
the SLU's memoranda on Demjanjuk.

Among these memoranda is one from Parker and Moscowitz to
the State Department requesting
assistance in obtaining further information from the Soviet
Union. The memorandum notes that the Soviets had sent
materials in June 1978 relating to the investigation of
Fedorenko (the Fedorenko Protocols), and continues: "Please
thank the [Soviet] Ministry for sending these materials
which have been very useful." Jt. App. 218. The October 23,
1978 letter shows that a copy was placed in the Demjanjuk
file. It seems clear that even if the Fedorenko documents
were "just put back in the Fedorenko files," anyone working
with the Demjanjuk files had the substance of those
documents, if not the documents themselves, available.

   There were clear signals that the Fedorenko documents
were significant in the Demjanjuk investigation. As we have
noted, the Fedorenko Protocols contained, inter alia, the
statements of Soviet citizens Malagon and Leleko, both
guards at Treblinka, who identified Marchenko as an operator
of the gas chamber. Leleko's statement clearly said that
there were two Ukrainian operators of the gas chambers,
"Marchenko and Nikolay" and  identified Marchenko as the
"motorist" who committed some of the very atrocities with
which Demjanjuk was charged.

Leleko said that Marchenko mutilated Jewish victims, cutting
off breasts of women. Demjanjuk argues that this evidence
provided the strongest possible support for their basic
contention in all the proceedings that Demjanjuk was the
victim of misidentification. Though the Treblinka survivors
who identified Demjanjuk as Ivan the Terrible probably
believed they recognized
him from the two photographs exhibited to them, it had been
30 to 40 years since any of them had their last opportunity
to observe the Ukrainian guard Ivan Grozny. On the other
hand, Leleko's statement was made immediately after the war.

The Israeli Supreme Court considered more eyewitness
survivor identifications than the American courts; yet, it
found that statements made to Soviet authorities identifying
Marchenko as "Ivan" raised sufficient doubt about the
identification of Demjanjuk to require reversal of
Demjanjuk's conviction and his release. It seems clear that
the American courts considering Demjanjuk's fate should have
had those documents that were in OSI's possession in 1981
that pointed to Ivan  Marchenko as Ivan the Terrible.


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