Demjanjuk regains U.S. citizenship (03/01/98)

Demjanjuk regains U.S. citizenship

by Roma Hadzewycz

PARSIPPANY, N.J. - John Demjanjuk has regained his U.S. citizenship, thanks to a February 20 ruling by a federal judge who reversed Demjanjuk's 1981 denaturalization, citing fraud on the part of U.S. government prosecutors.

Judge Paul R. Matia of the U.S. District Court for the Northern District of Ohio, Eastern Division, wrote that attorneys of the U.S. Justice Department's Office of Special Investigations (OSI) "acted with reckless disregard for their duty to the court and their discovery obligations" in failing to disclose evidence to the Demjanjuk defense.

Ed Nishnic, spokesman for the Demjanjuk family, said: "We are thankful for the court and its ruling for reinstatement of Mr. Demjanjuk's citizenship. We're carefully reviewing this decision and deciding on what our next steps will be."

Mr. Nishnic, who is a son-in-law of Mr. Demjanjuk, also said: "This is welcome news to the family. This has been a 21-year legal nightmare, and when we got word of the decision it was like waking up after the nightmare. Now we are back to an even playing field."

The issues before the court

As Judge Matia wrote in introduction to his decision, the court did not consider "the substance of this case: whether the defendant was a guard at Trawniki or whether he did anything else that would have disqualified him as a candidate for United Sates citizenship."

The issue was procedure: "whether certain actions (or inactions) by the government denied Demjanjuk information or material which he was entitled to receive pursuant to court discovery orders, whether such conduct by the government constitutes fraud upon the court and, if so, what the appropriate sanction should be."

The judge's ruling referred to two portions of the case against Mr. Demjanjuk: the Treblinka portion, in which Mr. Demjanjuk was accused of being the notorious Treblinka death camp guard known as "Ivan the Terrible"; and the Trawniki portion, in which the OSI alleged that the former Cleveland autoworker was at the Trawniki training camp for guards.

Mr. Demjanjuk's lawyers argued that the fraud committed in the Treblinka portion of this case was so substantial and pervasive that any examination of whether it tainted the Trawniki portion of the allegations was unnecessary. The U.S. government, on the other hand, argued that Mr. Demjanjuk's alleged service as a guard at the Trawniki training camp and misrepresentation concerning that service were grounds for denaturalization unaffected by the fraud in the Treblinka portion.

Judge Matia concluded that "the fraud committed with respect to Treblinka cannot be isolated so as not to infect the Trawniki findings."

He cited a November 1993 ruling in the extradition portion of the Demjanjuk case, in which the 6th Circuit Court of Appeals held that "the OSI attorneys acted with reckless disregard for the truth and for the government's obligation to take no steps that prevent an adversary from presenting his case fully and fairly. This was fraud on the court in the circumstances of this case where, by recklessly assuming Demjanjuk's guilt, they failed to observe their obligation to produce exculpatory materials requested by Demjanjuk."

Referring to new examples of evidence not disclosed to the defense - information that was revealed in this proceeding - Judge Matia wrote, "this behavior constitutes further fraud upon the court."

The new information includes documentation referring to a February 1980 interview with Jacob Reimer, an ethnic German who served as a clerical official at Trawniki, and the Dorofeev Protocols received from the USSR in 1980, which include the statements of five Soviet citizens who served at Trawniki.

The Demjanjuk defense first became aware of the Reimer documentation in 1996, according to Mr. Nishnic. It knew of the Dorofeev Protocols in May 1981 - after all the evidence had been heard in the denaturalization portion of the government's case against Mr. Demjanjuk - and then unsuccessfully attempted to file a motion for a mistrial.

In vacating the denaturalization order of June 23, 1981, Judge Matia also considered whether any sanctions should be applied. There were two possibilities: dismissing the case with prejudice, or dismissing it without prejudice. If no sanctions were imposed, the denaturalization case would have remained pending further proceedings.

Judge Matia wrote: "The court believes that simply vacating the judgment is not a sufficient sanction in light of the magnitude of the offense. Doubt cast upon the fairness of one judicial proceeding infects the whole justice system. Such behavior, whether or not intentional, must not be tolerated. The sanction for it must be appropriately severe. Yet, in fashioning a response, a court must be vigilant that it not allow unspeakable horrors to go unpunished in the name of preserving the abstract principle of justice."

He explained: "Just as the government should not be able to profit from its misbehavior, neither should a defendant be insulated from the consequences of his alleged moral turpitude because he becomes the inadvertent beneficiary of sanctions against the government."

Thus, Judge Matia chose to dismiss the case without prejudice, which means that the U.S. government could reopen a case seeking to revoke Mr. Demjanjuk's citizenship. If he had dismissed the case with prejudice, the government would have been prevented from reopening any denaturalization proceeding against Mr. Demjanjuk.

"Upon review of its evidence, if the government still believes it has a credible case against the defendant, it may refile an appropriate complaint seeking to revoke and set aside the order admitting the defendant to citizenship and canceling his certificate of naturalization, and attempt to prove its allegations on a level playing field. Our system of justice requires no less of the government and demands no more of the defendant."

Both sides have 60 days to appeal the ruling.

Reaction to the ruling

The Associated Press quoted Eli Rosenbaum, director of the Office of Special Investigations, as saying the government will review the matter and decide whether to refile its case against Mr. Demjanjuk.

Mr. Nishnic told The Weekly: "We have not yet decided on how to proceed at this moment. We are in detailed discussions with our lawyers concerning our options."

Mr. Nishnic commented on the most recent revelations contained in the Reimer documentation. "This stuff is totally new. It was revealed after Mr. Demjanjuk was allowed to return to this country; it was never seen by the 6th Circuit, which found fraud in 1993. Now, supposedly the special master [who investigated allegations of prosecutorial misconduct on the part of the OSI] had seen all the evidence - and yet this appears."

He continued: "If it had been seen by the court, or the special master, this would have put a different outcome on those proceedings. How many times could it have been an inadvertent error [for the OSI not to release evidence to the Demjanjuk defense]?"

"Objective obervers of the Demjanjuk case could not in their own minds believe that this is a case of where the constable has blundered. In my opinion it is a lot stronger than that," Mr. Nishnic emphasized.

Asked about the reaction of his father-in-law, who does not speak with the press, to the reinstatement of his U.S. citizenship, Mr. Nishnic said, "Mr. Demjanjuk, as always in the past, accepted the news very calmly, without any real emotion, but he is very happy. Like so many Ukrainians, he's been through it all, he's seen it all: famine, conscription into the Red Army, where they had nothing. He's been on the brink of death so many times in so many instances that's he's almost numb to it."

"He also looked death in the eye in Israel," he continued. "But, as bad as it was in Israel, he wasn't watching his family starving [during the Great Famine of 1932-1933], or his countrymen being used as cannon fodder [during World War II]. It's just another chapter in his life... How many times do you have to come so close to death that you don't fear it any more?"

Previous decisions in Demjanjuk case

The latest ruling in the Demjanjuk case is also the latest in a string of victories for the Demjanjuk defense.

Mr. Demjanjuk's conviction as "Ivan the Terrible" of the Treblinka extermination camp was overturned by Israel's Supreme Court in July 1993.

In September 1993 Mr. Demjanjuk returned to the United States after a three-judge panel of the 6th Circuit Court of Appeals ruled that he should be allowed re-entry while the courts considered whether he was wrongly denaturalized and then deported.

In November of that year, the 6th Circuit Court of Appeals characterized the behavior of the Justice Department's Office of Special Investigations in handling Mr. Demjanjuk's denaturalization and deportation proceedings as constituting a "fraud on the court." In addition to its finding of fraud, the court ruled that the 1986 extradition order against Mr. Demjanjuk be overturned.

In October 1994 the U.S. Supreme Court refused to hear the Justice Department's appeal of that 1993 ruling.

At that time, Mr. Demjanjuk's family praised the Supreme Court's decision not to review the case, saying that this should allow Mr. Demjanjuk to remain in the U.S. "Today's decision makes it absolutely clear that the Department of Justice defrauded the U.S. courts, deceived the American people and destroyed Mr. Demjanjuk's good name," said Mr. Nishnic.

Now, with another victory behind him, Mr. Nishnic added, "the truth is on our side."