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Shofar FTP Archive File: people/d/demjanjuk.john/circuit-court/appeal-order.04


Newsgroups: alt.revisionism
Subject: Demjanjuk Case - U.S. Court of Appeals (4 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.04
Last-modified: 1996/03/07
IV.

   After working on the Demjanjuk case for several years,
OSI attorney George Parker became convinced that OSI lacked
sufficient evidence that Demjanjuk was Ivan the Terrible of
Treblinka. On February 28, 1980, Parker wrote a memorandum
entitled "Demjanjuk--A Reappraisal," addressed to Walter
Rockler, Director, and Allan Ryan, Deputy Director of OSI,
setting forth his doubts. He urged the addressees to read
the memorandum and be prepared to make a decision about how
to proceed with Demjanjuk (the denaturalization case had
been pending for more than two years and was nearing trial)
in the near future. This memorandum is annexed hereto as
Appendix 7.

A.

   Parker's memorandum discussed the background of the
Demjanjuk investigation, which began when attorneys in the
SLU became aware of a brief reference to Demjanjuk at
Sobibor in a book called Lest We Forget. The book also
referred to a document later denominated the "Trawniki
Card," containing a photograph identified as being that of
Ivan Demjanjuk.

It was only after Treblinka survivors who were interrogated
by Israeli police identified the person pictured on the card
as a guard at Treblinka  rather than at Sobibor that the SLU
shifted its focus and began preparing a case against
Demjanjuk as Ivan the Terrible. All other evidence,
including the statements of Danilchenko and two other
Ukrainian guards questioned by Soviet authorities,
identified Demjanjuk as a guard at Sobibor and Flossenburg,
but not at Treblinka.

   Furthermore, Parker's memo pointed out, both the Polish
and Soviet governments had compiled lists of guards at
Treblinka, and Demjanjuk's name appeared on neither one,
though "the two Ukrainians who incessantly worked at the gas
chambers were well known." This portion of the memorandum
concludes: "Given these circumstances it is disturbing, as
Norman Moscowitz has pointed out repeatedly, that
Demjanjuk's name does not appear on either list."

   After reviewing the available admissible evidence and the
"flaws" with the Treblinka evidence, the memorandum sets
forth Parker's views of "Strategic Options; Ethical
Responsibilities" of OSI as he sees them. This section of
the memorandum begins with these words:

   We have little admissible evidence that defendant was at
Sobibor yet serious doubts as to whether he was at
Treblinka. Even if we may be comforted that we may have  the
right man for the wrong act, the ethical cannons [sic]
probably require us to alter our present position.

   The memorandum then sets forth four options and Parker's
recommendation as to each.

   Option 1 would be to maintain the status quo, that is, to
"proceed with the Treblinka case as presently plead." (The
denaturalization complaint did not mention Sobibor or
Trawniki, only Treblinka.) Assuming canons of ethics that
caution against prosecutors going forward in a criminal case
in which they have serious doubts apply to the
denaturalization case, Parker "strongly recommended" against
this option. Parker recognized that a denaturalization
proceeding is technically a civil rather than a criminal
action, but expressed the view that
the consequence to a defendant who loses such a case--
deprivation of citizenship--is so severe that this stricture
of the canons should be followed.

   Option 2 would be to strike claims that Demjanjuk was at
Treblinka and substitute claims that he was at Trawniki and
Sobibor. Parker described this course of action as
"tactically suicidal" and "a strategic blunder," primarily
because it placed too much reliance on the Trawniki Card.

   Option 3 would be to dismiss the case--at least
temporarily--and attempt to beef up the Sobibor evidence.
The memorandum recommended against this option because of
"largely political" negative factors, and the possibility
that the court might not permit refiling.

   Option 4 would be to amend the pleadings to add
allegations that Demjanjuk served at Sobibor and Trawniki in
addition to the allegation that he was Ivan the Terrible of
Treblinka. This would shift the focus from testimony of
Treblinka survivors describing the heinous crimes of Ivan
the Terrible to a mere showing that Demjanjuk was a Russian
POW trained by the Germans as a guard, who served as a guard
at an extermination camp. Parker did not make a
recommendation
with respect to Option 4, but repeated his opinion that a
change in course was absolutely required by ethical
considerations.

   Parker's superiors eventually decided to amend the
pleadings to add allegations about Sobibor and Trawniki, but
to proceed with the case on the basis of proving that
Demjanjuk was Ivan the Terrible and to rely principally on
photo identifications by Treblinka survivors. Parker
resigned from the Department of Justice before the
denaturalization trial and Norman Moscowitz took over as
lead attorney for OSI.

B.

   The Special Master found that the Parker memorandum is
"authentic." S.M. Report at 100-01. This was an issue,
because no one in OSI could locate it; Parker produced a
copy of the memorandum and cover letter on October 8, 1992,
in proceedings before the master.

   Rockler testified that he could not remember receiving
the memorandum. Ryan testified that he could not have
received it, or he would have done something about it. The
master stated that Ryan's testimony should be taken "with a
grain of salt," and we agree with this assessment. Moscowitz
testified that he did not receive the memorandum, but was
aware of Parker's doubts about the  identifications of
Demjanjuk by survivors of Treblinka.

The master found that there was a meeting shortly after the
memorandum was written at which the question of amending the
pleadings in the Demjanjuk case was discussed. Although
there was considerable inconsistency in the testimony of the
attorneys who attended the meeting, the master found that
all were telling the truth to the extent they remembered the
meeting at all. The master further concluded that Rockler
found no irreconcilable discrepancies in the  Demjanjuk
evidence and that the evidence in hand was sufficient to go
forward. On that basis, Parker's views were rejected by
Parker's colleagues within OSI. S.M. Report at 103-09.

   The master absolved Moscowitz of blame for not sharing
Parker's ethical concerns and proceeding to prosecute the
denaturalization case with the Ivan the Terrible allegations
as its centerpiece. Moscowitz testified that he had
concluded that while Demjanjuk's primary duties were at
Treblinka, the Trawniki training camp was also a transfer
point for guards. Thus, it was not impossible for Demjanjuk
to have been at Treblinka at times the survivors claimed
they saw
him operating the gas chambers and committing other
atrocities there, and to have served at Sobibor at other
times. S.M. Report at 113-18.

   The "most striking aspect" of the Parker memorandum,
according to the master, "is its complete silence regarding
the references [in the Fedorenko documents] to a man named
Marchenko at the gas chambers." S.M. Report at 112. Parker's
doubts were based on the apparent impossibility of
Demjanjuk's having been a guard at both Sobibor and
Treblinka during the relatively brief time both were in
operation, and his uneasiness  about the survivor
identifications so long after the events. Parker did not
make the Marchenko connection.

Moscowitz testified that when he became aware of the
evidence identifying Marchenko as
Ivan the Terrible, he assumed that Demjanjuk had adopted
Marchenko (a common Ukrainian name, and Demjanjuk's mother's
maiden name) as an alias. The problem with this explanation
is that Moscowitz also relied on the Trawniki card
containing Demjanjuk's name and photograph as significant
evidence that he was Ivan the Terrible of Treblinka. It is
hard to understand how he could have been sent from Trawniki
to Treblinka as Demjanjuk and then assumed the name
Marchenko while working there. Surely the meticulous Germans
in charge at Treblinka would have noticed the discrepancy.

   In his memorandum, Parker wrote that adopting Option 4,
amending the pleadings to add Sobibor and Trawniki
allegations, would be "simply a ruse to avoid the ethical
problems" identified in Option 1. The master found that
amending in this way was not a ruse because Moscowitz and
others believed in good faith that transfers did take place
through Trawniki between camps and that Demjanjuk had served
at both Treblinka and Sobibor.  S.M. Report at 123.

   While recognizing the significance of the Parker
memorandum as a document which raised important questions
about the handling of the Demjanjuk case, the Special Master
concluded that it was not a "smoking gun" insofar as his
inquiry was concerned. The master held that because OSI
attorneys acted on the basis of good faith belief in
Demjanjuk's guilt as Ivan the Terrible their disagreements
with Parker's conclusions were irrelevant with respect to
the issue of fraud on the court. S.M. Report at 117. While
we agree that the Parker memo alone would not be a
sufficient basis for a finding of fraud on the court, it
raised a clear warning that there were ethical perils in
continuing to prosecute Demjanjuk as Ivan the Terrible. When
his superiors and colleagues at OSI refused to heed his
warning, Parker resigned.

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