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Shofar FTP Archive File: people/d/demjanjuk.john/circuit-court/appeal-order.02


Newsgroups: alt.revisionism
Subject: Demjanjuk Case - U.S. Court of Appeals (2 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.02
Last-modified: 1996/03/07

   We directed the parties to file briefs setting forth
their views and arguments respecting the Special Master's
report and set the matter for oral argument on September 3,
1993. Following full briefing and extended oral argument the
matter was submitted for decision.

II.

   The master made findings of fact, largely based on
credibility determinations, which absolved the government
attorneys of deliberately and intentionally failing to
disclose information that they considered exculpatory. Judge
Wiseman also found that the various proceedings against
Demjanjuk were not affected by political pressures from
congressional sources and various Jewish groups in the
United States. S.M. Report at 27-28. We are required to
accept the master's findings of fact unless clearly
erroneous. Fed. R. Civ. P. 53(e)(2).

A.

   The master considered six specific claims by Demjanjuk
that acts and omissions of OSI attorneys described therein
constituted prosecutorial misconduct or fraud on the court.
These claims related to statements of various witnesses and
a report of a Polish investigation that had come into OSI's
possession. In each case the master found that government
attorneys had failed
to disclose or produce documents or other materials that
should have been subject to disclosure or production  under
outstanding discovery requests and Fed. R. Civ. P. 26(e).

In each instance, however, the master exonerated the
government attorneys on one or more of the following
findings: either that the attorneys did not believe the
materials were within the scope of outstanding discovery
requests; that they believed in good faith that the
materials did not relate to Demjanjuk; or that a particular
attorney then responsible for complying with requests was
not aware of the existence of specified materials even
though other attorneys who worked on the Demjanjuk cases did
know of and had seen the materials.

   In making these determinations, the master considered
each of the six claims in light of the successive sets of
interrogatories filed by Demjanjuk during the
denaturalization proceedings. At the time he filed the first
set of interrogatories Demjanjuk filed a request for
production of documents and  stated  [*341] that both were
to be treated as of a continuing nature. Question 2 of the
first set of interrogatories asked whether a statement had
been obtained from any person whose name and address had
been sought in Question 1. The respondents argued that they
had complied fully by providing names of persons who claimed
to have any knowledge of Demjanjuk's alleged activities at
Treblinka as requested in Question 1 of the first set. The
master
refused to accept the OSI attorneys' arguments, stating:

   Thus, the defendant specifically asked for the names of
all witnesses to the defendant's alleged actions, and
whether statements had been obtained from those people. When
read in conjunction with Mr. Demjanjuk's first request for
production, he clearly had requested all witness statements.

   S.M. Report at 165. Similarly, the master found that the
government never supplied the names of several witnesses
whose identity was required to be disclosed by Question 1.

   Another set of interrogatories asked specifically about
foreign government reports concerning activities of Ivan the
Terrible at Treblinka. The previously described materials
from the Polish investigation of the Treblinka atrocities
were in the government's possession in 1979, but were not
produced until 1982, after the conclusion of the
denaturalization proceedings. This failure was an
"oversight," according to one government attorney. S. M.
Report at 171. Finally, and most significantly, as early as
1978 or 1979 the government  had information from official
sources within the Soviet Union indicating that there were
two Ukrainian operators of the gas chambers at Treblinka--
Ivan and Nikolai--and that "Ivan Grozny" was a man named
Ivan Marchenko, not Ivan Demjanjuk.

B.

   The master found some of the respondents' failures
"excusable," some "inadvertent," and most to have resulted
from the government attorneys' mistaken understanding of the
scope of their duty of production under the discovery
requests made by Demjanjuk. Judge Wiseman stated:

   [A] careful reading of Mr. Demjanjuk's discovery requests
demonstrates that he asked for virtually every piece of
evidence that is at issue in these proceedings. As
demonstrated, the government did not provide the evidence
because it believed that it was under no duty to do so. The
heart of the discovery problems, therefore, was a tragic
misunderstanding.

   S.M. Report at 204. Noting that no fewer than eight
government attorneys worked on the Demjanjuk
denaturalization case, the master blamed the
misunderstanding with respect to the duty to disclose and
produce materials on "the unstable and fractious character"
of the prosecution team. The difficulties resulting from
rivalries between OSI and the United States Attorney's
office in Cleveland, and the frequent changes of attorneys
assigned to the case
were compounded, the master found, by the attitude of the
government trial attorneys that "at times bordered on
gamesmanship." S.M. Report at 205.

   The master found that, in interpreting Demjanjuk's
requests and interrogatories so narrowly, the government
attorneys were "playing hardball." S.M. Report at 172. Judge
Wiseman pointed out that when questions arose as to whether
the later of two requests for information from foreign
governments was redundant or inconsistent with the first
request, the government attorneys had
several options. They could have complied with the requests;
they could have sought a protective order if they felt the
requests were redundant or oppressive; or they could have
contacted defense counsel by telephone for a clarification.
As the master stated:

   Each of these options would have had the advantage of
providing the defense either with the requested information,
or with notice of the misunderstanding. Although I believe
that the consequences were unintended, the course they took
-- silently imposing a limitation on the earlier
interrogatory-- almost certainly misled [defense  counsel]
and endangered Mr. Demjanjuk's ability to mount a defense.

   S.M. Report at 175.

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