FACES AND PLACES: Should Neal Sher be disbarred? (03/01/98)

FACES AND PLACES

by Myron B. Kuropas

Should Neal Sher be disbarred?

Now that Judge Paul R. Matia of the U.S. District Court of Ohio, Eastern Division, has restored John Demjanjuk's citizenship and corroborated an earlier court ruling that "the OSI attorneys acted with reckless disregard for their duty to the court and their discovery obligations," the question arises: should Neal Sher be disbarred?

In his ruling, Judge Matia also reiterated the words of the Sixth Circuit Court that "the attitude of the OSI attorneys toward disclosing information to Demjanjuk's counsel was not consistent with the government's obligation to work for justice rather than for a result that favors its attorney's preconceived ideas of what the outcome of legal proceedings should be."

Even the identification process against Mr. Demjanjuk was confirmed by Judge Matia to be "tainted by the fraudulent acts of the government." Most damaging to Mr. Sher and his cohorts is additional evidence of the "government's failure to disclose potentially important evidence directly related to the Trawniki charge."

"Jacob Reimer," Judge Matia writes, "is an ethnic German who served as clerical official at the Trawniki labor camp during the period defendant is alleged to have served their as a guard. Reimer had subsequently been admitted to the United States and was still living here during the defendant's denaturalization proceedings. He was interviewed by the lead OSI denaturalization lawyers in February of 1980. There is apparently no record of what was said during the interview, the only contemporaneous documentation of that meeting being a memo dated April 11, 1980, from OSI attorney Norman A. Moscowitz to Allan A. Ryan Jr. stating '[Reimer] had no useful information.' Neither the occurrence of this interview nor the existence of the memo concerning it were revealed to defendant before his 1981 trial."

"What is the significance of the notation that Reimer 'had no useful information?'" Judge Matia asks. "Was he shown the Trawniki card and could not identify it? Had he never seen one like it? Was it different in appearance or content from cards he was familiar with?"

"Even if Reimer had never been shown the card, he was still described by the government itself as someone who 'may turn out to be an important witness,' was 'a potential source of information about Trawniki generally,' and 'was a clerical official' who many have been 'able to assist in the authentication of Trawniki documents ... Can anyone seriously doubt that Reimer was a potential witness whose existence should have been disclosed to Demjanjuk? If indeed Reimer, for one reason or another 'had no useful information,' shouldn't Demjanjuk's attorneys have had the right to make that determination themselves?" he continued.

Judge Matia also noted the decision of the OSI to provide the so-called Dorofeev Protocols to the defense only after the denaturalization case was over, stating that they represented "further incriminatory information and support for the government's case." As described by the Sixth Circuit Court the protocols included "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 photo spread, he qualified his identification by stating that his recollection of Demjanjuk was poor."

Reflecting on this information, Judge Matia concluded: "Although the Dorofeev evidence was considered by Judge Battisti and found by him not to be of such a nature as to alter the outcome of the case, this court believes that the evidence may very well take on added significance in the light of what has transpired since Chief Judge Battisti's ruling. Certainly the evidence has both inculpatory and exculpatory elements, but this court does not understand how a responsible government attorney would not instantly recognize that Demjanjuk's attorneys should have been immediately apprised of evidence demonstrating that four of these five Trawniki witnesses were unable to identify Demjanjuk and that the fifth was very tentative."

According to a biographical sketch supplied by the Washington law firm Schmeltzer, Aptaker & Shepard where he is a law partner, Mr. Sher joined the OSI as a senior trial attorney in 1979, when the office was created, and became deputy director in 1980, "overseeing all aspects of the investigations and prosecutions." He was OSI director from 1983 through 1994.

Among "noteworthy accomplishments" Mr. Sher's bio lists: "taking the first depositions in the then Soviet Union, a landmark step which paved the way for critical evidence gathering in the USSR." And we all know that in the case of Bohdan Koziy, who Mr. Sher alleges killed a 4-year-old Jewish girl, the KGB coerced evidence. As reported in The Ukrainian Weekly, "65-year old Hanna Snegur, a Polish Catholic pensioner, admitted that she was forced to testify during an interrogation by the KGB that in 1943 she saw Mr. Koziy, then a militiaman in German-occupied Lysets, Ukraine, carrying off the little Jewish girl."

Is there anyone out there who still believes that Mr. Sher was not consciously and deliberately involved in the fraud perpetrated upon U.S. courts? Can any sane and unbiased person accept the notion that despite high-level positions in the OSI for a period of 15 years, Mr. Sher knew nothing of the "refiling" of exculpatory evidence in dumpsters in Washington, or the faked Tawniki ID card, or the fraudulent manner by which witnesses were asked to identify photos of Mr. Demjanjuk? Is it possible that Mr. Sher was totally unaware of OSI efforts to deceive, fabricate and conceal evidence once it became clear that the OSI didn't have a case against Mr. Demjanjuk?

What does it take to disbar a U.S. government official, a ranking member of the Justice Department, sworn to uphold the law? When are fraud and reckless disregard for the truth enough? When are preconceived notions of guilt based on ethnic background sufficient to disqualify one from representing a governmental agency ostensibly dedicated to justice? When will Jewish leaders finally condemn behavior that trivializes the Holocaust?

Mr. Sher's bio-sketch lists a total of 20 awards and commendations. Eighteen of these awards have been from Jewish American or Israeli organizations.

Is Mr. Demjanjuk home free? Don't bet on it. That old Ukrainophobe Eli Rosenbaum, Neal Sher's successor as OSI head, has informed the media that his staff is considering reopening the Demjanjuk case, at American taxpayers' expense, of course.

Myron Kuropas' e-mail address is: [email protected]