Richard Rashke - Useful Enemies

The second item was a file known as the Fedorenko Protocol. It contained two red-hot, smoking guns. The first was Nikolai Petrovich Malagon, a former Treblinka guard. In a sworn statement dated March 18, 1978, three years before the Demjanjuk denaturalization trial as Ivan the Terrible, Malagon said: “While at the Treblinka death camp, I met the guard Nikolai [sic] Marchenko, who drove a gas chamber [motor]. I do not know where he is at the present.”

A Soviet prosecutor then showed Malagon three cards with three photos pasted on each. Each card contained a picture of Iwan Demjanjuk. Marchenko’s photo was not among the nine. Malagon failed to identify anyone in the pictures as Marchenko, and he failed to recognize the photo of Iwan Demjanjuk as someone he knew either at Treblinka or at Trawniki.

The second smoking gun was Pavel Vladimirovich Leleko, another Treblinka guard. In a sworn statement also dated March 1978, Leleko said: “When the procession of doomed people approached the gas chamber building Marchenko and Nikolai, the motorists [operators] of the gas chambers shouted: ‘Walk faster or the water will become cold!’… The Germans and the motor operators then competed as to atrocities with regard to the people to be killed.

“Marchenko, for instance, had a sword with which he mutilated people. He cut off the breasts of women…. When the loading of the chambers was completed, they were sealed off by hermetically closing doors. Motorists Marchenko and Nikolai started the motors. The gas produced went through pipes in the chambers. The process of suffocation began.”

The defense concluded that OSI had deliberately concealed the Malagon and Leleko sworn statements because it was committed to trying John Demjanjuk as Ivan the Terrible even if he wasn’t.

To conduct its investigation, the U.S. Sixth Circuit Court of Appeals appointed a special master—Thomas A. Wiseman Jr., a senior district court judge in Nashville, Tennessee. Judge Battisti would have been the logical choice for the job because he knew the Demjanjuk case well and sat on the bench in Cleveland, the home base of the Sixth Circuit. But Demjanjuk attorneys would most certainly have filed a motion to remove Battisti from the case had he been chosen. Whether or not to appoint Battisti, however, turned out to be moot. A tick bit the judge while he was hiking, and he subsequently died of Rocky Mountain spotted fever at the age of seventy-two.

Judge Wiseman spent three months reviewing all the withheld documents and deposing all the OSI attorneys involved in the Demjanjuk case. Among others were former OSI director Walter Rockler, the recipient of the doubt memo that questioned the ethics of prosecuting Demjanjuk as Ivan the Terrible; his successor Allan Ryan; George Parker, who wrote the doubt memo; Martin Mendelsohn, who led the early investigation of Demjanjuk; and Norman Moscowitz, the lead prosecutor in Demjanjuk’s Ivan the Terrible denaturalization case.

The government presented to the special master two arguments in defense of the OSI attorneys. First, it argued that there were so many overlapping OSI investigations going on at the time that not every OSI prosecutor knew what was in every other prosecutor’s file. The government conceded, however, that some OSI attorneys and investigators did know about the existence of the documents in question. Moscowitz, for example, had read the Polish commission’s list of former Treblinka guards and the Fedorenko Protocol, in which two former Treblinka guards identified Iwan Marchenko as Ivan the Terrible. But Moscowitz did not know, the government argued, about Parker’s doubt memo and the Otto Horn photo identification reports written by OSI investigators.

Second, the government argued that OSI was not required by law to release the documents in question. True, the 1963 Supreme Court decision in Brady v. Maryland had found that the “suppression by the prosecution of evidence favorable to the accused upon request violates due process.” But Brady was a criminal case. Demjanjuk was a civil case. Therefore, the government argued, the Brady decision did not apply to Demjanjuk.

Special Master Wiseman’s conclusions and recommendations to the Sixth Circuit Court of Appeals shocked and disappointed the Demjanjuk family, which was totally convinced that OSI had framed their father and husband. Judge Wiseman quickly dispatched the charge of prosecutorial misconduct by agreeing with the government’s interpretation of Brady. The charge of fraud on the court was a more complicated issue.

To prove fraud on the court, Wiseman argued, Demjanjuk would have to clearly show that an officer of the court had deceived the court by being intentionally false, willfully blind to the truth, or in reckless disregard of the truth by positively concealing something the officer had the duty to disclose.

Wiseman conceded that OSI had played “hardball” with the Demjanjuk defense by not fully cooperating as it had promised. He faulted OSI attorneys for “failing to ask questions regarding the evidence they possessed, and this error prevented them from asking questions designed to obtain additional evidence.” Their failure to challenge the evidence they possessed, Wiseman wrote, “led them to abandon leads which contradicted their interpretation of the evidence.” Wiseman dismissed George Parker’s doubt memo, saying that it was not a “smoking gun” nor was it evidence of a “breach of any ethical duty.”

In his special master’s report to the Sixth Circuit court, Wiseman concluded that OSI attorneys had acted in good faith. “They did not intend to violate the Rules of their ethical obligations. They were not reckless; they did not misstate the facts or the law as they understood them, and did not make statements in ignorance while aware of their ignorance or behave with willful blindness…. My recommendation to the Court is that… no action be taken against any of the government attorneys who prosecuted Mr. Demjanjuk.”

In November 1993, two months after Demjanjuk returned to the United States from Israel, the Sixth Circuit Court of Appeals ruled on his denaturalization appeal and his allegations of prosecutorial misconduct and fraud upon the court. After reviewing Special Master Wiseman’s 240-page report, the Sixth Circuit accepted some of his analysis of the evidence but none of his conclusions.

The court found that Judge Wiseman erred when he ruled that Brady did not apply to Demjanjuk’s civil trial. In the denaturalization trial of John Demjanjuk, the appeals court pointed out, the government charged that “Demjanjuk was guilty of mass murder” as the cruel and brutal Ivan the Terrible. In effect, the appeals court ruled, the Demjanjuk case was a criminal case by intent. Thus Brady applied.

Having clarified that legal issue, the Sixth Circuit went on to rule on the interrelated issues of prosecutorial misconduct and fraud on the court. It was not as generous or forgiving as consulting Judge Thomas Wiseman. Unlike the special master, who concluded that OSI did not prosecute Demjanjuk for political reasons, the Sixth Circuit accused OSI of placing politics and a “win at any cost” attitude above the dictates of justice. In effect, the court was saying that OSI had been committed for political reasons to seeing John Demjanjuk die for a crime he did not commit.

“It is obvious from the record,” the appeals court further ruled, “that the prevailing mind set of OSI was that the office must try to please and maintain very close relationships with various interest groups because their [OSI’s] continued existence depended on it.”