1992: A LOOK BACK: The Demjanjuk case: OSI fraud? (12/27/92)

1992: A LOOK BACK

The Demjanjuk case: OSI fraud?

"Let my father go!" That was the plea of John Demjanjuk Jr. in a letter to the editor of The Washington Post published on February 1. The reason: documents proving that another man - not John Demjanjuk - was the notorious "Ivan the Terrible" of Treblinka had been in the possession of U.S. Justice Department officials for 13 years and were kept from the Demjanjuk defense. "It is now evident that this case was not one of mistaken identity but of the malicious prosecution of an innocent man," wrote the younger Mr. Demjanjuk.

Indeed, as events unfolded in 1992, it became increasingly evident that the Office of Special Investigations, the Justice Department's Nazi-hunting unit, was interested less in justice than in the publicity that would come with the seemingly successful prosecution of "Ivan."

In Israel, where Mr. Demjanjuk is appealing his 1988 conviction and death sentence for the Nazi war crimes committed by "Ivan the Terrible," the Supreme Court delayed the case yet again in February when it ordered the defense to obtain additional KGB files (reportedly containing 40 depositions of former Treblinka guards) from the former Soviet Union and report back within two months. At the same time, on February 25, the court rejected the defense's motion that Mr. Demjanjuk be released immediately based on new evidence pointing to another man, one Ivan Marchenko, as the real "Ivan."

On March 8, defense attorney Yoram Sheftel again argued for the release of his client based on the latest evidence on Marchenko, who had fled the allied advance toward the end of World War II and headed for Yugoslavia. That was the information contained in the testimony of another Treblinka guard, Nikolai Shelayev, who worked alongside Marchenko running the gas chambers.

In other developments, the German magazine Stern published a story indicating that German federal police believe a document used to convict Mr. Demjanjuk - the so-called Trawniki ID card - is a forgery, citing "a number of conspicuous things about the document that made its authenticity doubtful." Furthermore, Israeli officials, when told about the Germans' doubts, said further examination of the document "was no longer desired." "Despite all that, the Jerusalem District Court had not the shadow of a doubt when it sentenced Demjanjuk to death," Stern wrote.

On June 11, final arguments were presented to Israel's Supreme Court. The defense produced 80 depositions from 36 former guards and forced laborers at Treblinka - all of whom said the brutal guard named "Ivan" was Marchenko. In addition, the defense presented 11 photo identifications of Marchenko as "Ivan" of Treblinka.

The prosecution, attempting to reconcile conflicting evidence regarding the true identity of "Ivan," suggested for the first time that there may have been two men named Ivan who operated the gas chambers - one of them Mr. Demjanjuk. Mr. Demjanjuk's son-in-law, Edward Nishnic, who is also the spokesperson for the family and the John Demjanjuk Defense Fund, characterized that suggestion as "the worst kind of historical revisionism." Prosecutor Michael Shaked also told the court he had proof Mr. Demjanjuk was a guard at the Sobibor death camp in Poland and the Flossenburg concentration camp in Germany. Mr. Sheftel also claimed the U.S., the USSR and possibly Israel had known for years that the real "Ivan" was Marchenko. "This trial...was nothing but a conspiracy and this is how it will go down in history," he said.

Meanwhile in the United States, on June 5, the U.S. Court of Appeals for the Sixth District in Cincinnati, acting on its own initiative, said the extradition warrant issued in 1986, which allowed Mr. Demjanjuk to be taken to Israel to stand trial, "may have been improvidently issued because it was based on erroneous information." The court said the extradition warrant was issued because Mr. Demjanjuk was believed to be the murderous "Ivan the Terrible."

The Court of Appeals ordered the reopening of the case after the Justice Department had failed to reply to two letters inquiring about its handling of the case.

Citing new evidence pointing to Marchenko as the real "Ivan," the court ordered the reopening of the extradition case and ordered the Justice Department to produce by July 15 a brief "describing any items of evidence of any kind of which it has knowledge tending to show that the petitioner-appellant, Demjanjuk, is not the 'Ivan the Terrible' who committed war crimes at the Treblinka death camp...together with a statement of approximately when agents of the United States first learned of each such item of evidence." In addition, the court ordered the Demjanjuk defense to file a brief "describing affidavits, depositions or other statements of witnesses ... which tend to show that a man known as Ivan Marchenko was 'Ivan the Terrible.'"

On August 11, in an unprecedented 90-minute hearing before the Sixth Circuit Court, Mr. Demjanjuk's lead attorney in the reopened extradition case, Michael Tigar, ridiculed the U.S. government's "inadvertence" in failing to disclose exculpatory statements by former Treblinka guards. The U.S. government's attorney, Patty Merkamp Stemler, admitted post-war statements by Soviet soldiers who had identified "Ivan" of Treblinka as Marchenko should have been released to the defense as a matter of "prudence," but she argued there was not a great deal of significance to those statements.

On August 17, the Court of Appeals issued an order allowing for further inquiry into the case, noting that it was proceeding under its inherent power to grant relief for "after-discovered fraud" from an earlier judgement. The three-judge panel appointed Thomas A. Wiseman, U.S. district judge for the Middle District of Tennessee, as "special master" responsible for supervising the collection of further evidence.

The Court of Appeals added that in order to procure information deemed essential to determine whether the OSI had engaged in prosecutorial misconduct, it was ordering the special master to take the testimony of attorneys Allan Ryan, Norman Moskowitz and George Parker of the OSI, and John Horrigan of the Cleveland District Attorney's Office. In addition, the special master was empowered to receive any other evidence he deems to be relevant to a review of the case. After all testimony is taken, the special master must prepare a report to the Sixth Circuit Court. which will then issue a final ruling.

On November 12, the first of the OSI's attorneys working on the Demjanjuk case, Mr. Parker, testified that he "did not think" Mr. Demjanjuk was "Ivan," and that he had warned his superiors via a memo that proceeding with the Treblinka allegations would violate canons of ethics promulgated by the American Bar Association. He produced a copy of the memo, which government lawyers have said was never seen anywhere at the Justice Department.

The next day, another former OSI attorney, Martin Mendelsohn, acknowledged that while he had offered to help the Demjanjuk family get information he already had in his possession exculpatory evidence regarding the Treblinka charges. Judge Wiseman reacted sharply: "You ever hear of the term 'stonewalling,' Mr. Mendelsohn?"

Messrs. Parker and Mendelsohn both testified about the pressure brought on the OSI by Rep. Joshua Eilberg of Pennsylvania, who wrote to the attorney general stressing the Justice Department "could not afford to lose" the Demjanjuk case.

On December 22, depositions were taken in Washington from two former OSI employees: Bernard Dougherty, an investigator, and George Garand, a historian. Hearings were to resume in Nashville on January 14-15, with the testimony of Messrs. Moskowitz and Horrigan, and final hearings are scheduled for February 4-5, when OSI attorney Bruce Einhorn and former OSI director Allan Ryan are to be questioned.

In a telephone interview with The Weekly, John Demjanjuk Jr. reported that, as regards the appeal in Israel, there is "no decision in sight." "It's shameful already," Mr. Demjanjuk said. "They've had indisputable evidence of my father's innocence for six months already. ...It seems they're sitting back and waiting to see the decision of the U.S. court so that the blame is thrown on the U.S. Justice Department."

And so, the case of John Demjanjuk grows curiouser and curiouser.

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