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Shofar FTP Archive File: people/d/demjanjuk.john/circuit-court/appeal-order.06


Newsgroups: alt.revisionism
Subject: Demjanjuk Case - U.S. Court of Appeals (6 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.06
Last-modified: 1996/03/07

VI.

A.

   The attitude of the OSI 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 OSI 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. S.M. Report at 202-03. 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).

B.

   The OSI 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 should 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."

In his statement, taken in 1945 near the end of World War
II, the guard Leleko named Nikolai and Marchenko as the
"motorists" and stated that Marchenko had cut women's
breasts with his sword. In addition, the protocols contained
the transcription of a detailed taped interrogation of
Fedorenko conducted in 1973 by Soviet officials. Fedorenko
stated that he remembered two guards at the gas chambers,
Nikolay and Ivan. Two Jewish survivors, Rosenberg and
Epstein, had also described two operators of the gas
chambers called Nikolai and Ivan. Marchenko's given name was
Ivan.

   The guard Malagon also identified Marchenko as a motorist
in a 1978 statement. He referred to him, however, as
"Marchenko, Nickolay," providing support for the OSI theory
that Marchenko was the Nikolai described by some survivors
and Demjanjuk was the notorious  Ivan. This theory was
weakened, however, by the fact that Marchenko's name
appeared on the list of Treblinka personnel furnished by the
Soviet government and Demjanjuk's name did not appear. This
same witness, Malagon, identified Demjanjuk's photograph as
that of a cook at Treblinka, not as Ivan the Terrible when
he was interrogated on October 2, 1979.

   The information in the Fedorenko Protocols would have
bolstered Demjanjuk's contention that he was not Ivan Grozny
of Treblinka, and would have provided information pointing
toward Marchenko as the notorious Ukrainian. The information
would have assisted the district court as well. The court
heard no evidence in support of Demjanjuk's claim of
misidentification beyond his own denial. This information
would have shown the court that there was evidentiary
support available, and in the government's possession, that
supported that denial.

   2. The list of Ukrainian guards at Treblinka furnished to
OSI by the Polish government was certainly exculpatory. In
1982 Demjanjuk's attorney advised OSI Director Allan Ryan
that he had learned of 1979 correspondence between the
director of the Polish Main Commission Investigating Nazi
Crimes in Poland [**41]   and OSI attorney Martin Mendelsohn
and requested copies "pursuant to discovery motions and
interrogatories . . . ." Jt. App. 149.

Attorney Moscowitz responded on August 17, 1992, enclosing
copies of the reports from Poland.
Moscowitz advised that OSI was furnishing the material "as a
matter of courtesy and not under any obligations of
discovery, which ended long ago." Jt. App. 150.

   Demjanjuk's attorney persisted, asking for copies of any
other documents received from foreign governments (a duty to
furnish such documents existed from the time of Demjanjuk's
first set of interrogatories, the master found). Attorney
Bruce Einhorn replied for OSI that "all relevant and
discoverable documents in the Government's possession have
been provided to you under the Federal Rules of Civil
Procedure." The letter also advised that OSI had undertaken
no inquiry to determine whether other documents being sought
had already been provided "or indeed whether such documents
even exist." Jt. App. 152.

   The 1979 letter from the Polish Main Commission advised
that the Commission had no data concerning Demjanjuk. Jt.
App. 502. Among the documents forwarded with the director's
letter was a list of known Ukrainian  guards who had worked
at Treblinka. Both Fedorenko and Marchenko's names appeared
on the list. Demjanjuk's name did not appear.

   Both Parker and Moscowitz, the two OSI attorneys most
involved in preparing the Demjanjuk denaturalization case,
saw the material from the Polish Main Commission. Parker
testified that he thought the material had no value in the
Demjanjuk case, and that he did not notice Marchenko's name.
Moscowitz testified he thought it did not relate to the
Demjanjuk case. This was a strange conclusion, given the
fact that the director of the Commission sent the material
in response to a request from OSI for information concerning
Demjanjuk and two other individuals. Jt. App. 502.

   The Polish Main Commission material would not have
established conclusively that Demjanjuk was not a guard or
motorist at Treblinka. There were approximately 100
Ukrainians there at one time or another. Nevertheless, the
defense could have argued from the absence of Demjanjuk's
name that surely the Polish investigation would have turned
up the name of Treblinka's most notorious guard and included
that person's name on the list. If Allan Ryan's proclaimed
policy of furnishing everything had been  followed, it is
clear that the Polish documents would have been furnished in
1979, before the denaturalization trial, not three years
later.

   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 February 26,
1980.

   Demjanjuk's counsel objected to testimony on the
videotape concerning the identification from photographs on
the specific ground that OSI 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 OSI investigator and historian directly
conflicted with Horn's testimony at the deposition that when
[**44]   he finally identified Demjanjuk's photograph in the
second spread he could not see the first set of pictures.
Yet, the reports both stated that Horn was unable to
identify Demjanjuk's photo in the first spread and only did
so while examining the second spread and noticing the
resemblance between the Demjanjuk photo in that set and the
Demjanjuk photo in the first spread, which was lying face-up
where Horn could see it as he examined the second set.

   As we have noted, Chief Judge Battisti overruled
Demjanjuk's objections to the Horn video deposition and
found that there were "no aberrations" in the process by
which Horn identified a photograph of Demjanjuk as Ivan. We
believe that if Demjanjuk's attorneys had had the
investigator and historian's reports of the first session,
with their strong indication of a suggestive
identification procedure, they could have conducted a cross-
examination of Horn at the videotaped deposition that would
have raised serious questions about the witness'
identification.

   Both the district court and Demjanjuk's counsel were
entitled to have these reports produced. Moscowitz, who was
the lead attorney at the denaturalization trial, testified
before the Special Master that he never read the Dougherty
and Garand reports before the trial. This, despite the fact
that Sinai, to  whom the reports were addressed, clearly
directed that a copy be made and sent to Moscowitz. If
Moscowitz did not read the reports, knowing he planned to
introduce the video deposition at the trial, this failure
constituted "reckless disregard for the truth."

   OSI was not a large office. We can find no excuse for
such casual treatment of information that could cast doubt
on the validity of important testimony. Moscowitz was
present at the first session with Horn, but testified that
he looked away during the actual identification, leaving
that to the investigator and historian. He did this, he
said, in order to avoid the possibility of being
called as a witness at the denaturalization trial when the
deposition to be taken a few months later would be
introduced. Not having witnessed the identification himself,
we can find no reasonable explanation in this immense record
for his failure to read and acknowledge the importance of
the contemporaneous reports of the trained investigator and
historian, nor can we understand how Sinai determined that 
two reports addressed to him  should be routed to Moscowitz 
without even reading them.


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