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.
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.
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.
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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