Richard Rashke - Useful Enemies

Unlike the special master’s finding, the final conclusion of the appeals court was as strong and as accusatory as the law allowed: “We hold 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… whereby recklessly assuming Demjanjuk’s guilt, they failed to observe their obligation to produce exculpatory materials requested by Demjanjuk….

“We vacate the judgment of the district court and the judgment of this court in the extradition proceedings on the ground that the judgments were wrongly procured as a result of prosecutorial misconduct that constituted fraud on the court. ”

The Demjanjuk family felt both vindicated and angry. OSI had framed their husband and father. Like the emotional Holocaust survivors, they thirsted for revenge. Surely the American system of justice would punish the guilty attorneys.

What they didn’t understand during their short-lived victory celebrations was that the 1993 Sixth Circuit Court of Appeals finding of prosecutorial misconduct and fraud on the court was little more than a censure. Prosecutorial misconduct by an attorney is not a crime punishable under the Federal Criminal Code. At best, it is punishable by disbarment by the appropriate state supreme court, and/or dismissal from the Justice Department. Unlike prosecutorial obstruction of justice, which is prosecutable, fraud on the court is too broad a legal term to be useful.

Playing the role of a “supreme court,” the American Bar Association (ABA) reviewed the unanimous decision of the three appeals court judges and overturned it, clearing all the OSI attorneys involved in the Demjanjuk case. The Justice Department referred the allegations against its OSI attorneys to an internal watchdog unit, the Office of Professional Responsibility (OPR). Like the ABA, OPR overturned the findings of the Sixth Circuit Court of Appeals as unfounded. It ruled that none of its prosecuting attorneys in the Demjanjuk case had committed prosecutorial misconduct, and that the facts in the case did not support a finding of fraud on the court.

John Demjanjuk had gone through three emotionally grueling and frightening trials in Cleveland and Jerusalem as Ivan the Terrible. The verdict of death by a noose hung over his head for five years as he sat in a jail cell on death row waiting for the Israeli Supreme Court’s life-or-death decision. His family suffered emotional trauma and financial loss for more than twelve years. And the men who framed him got off free.

Was that justice? the family asked.

The decisions of the Israeli Supreme Court and the U.S. Sixth Circuit Court of Appeals raise a deeply cynical question. Was there an international conspiracy involving the United States, the Soviet Union, Poland, and Israel to try and to convict John Demjanjuk as Ivan the Terrible when they knew he was not?

As early as 1978, three years before the Demjanjuk denaturalization trial, both Moscow and the Polish Main Commission knew from the sworn statements of several Treblinka SS guards that the real Iwan Grozny was Iwan Marchenko. Before the Demjanjuk trial in Jerusalem even opened, the 1986 Fedorenko trial in Crimea had left no doubt that Iwan Marchenko was Iwan Grozny. But as far as the record shows, neither Poland nor the Soviet Union explicitly told OSI that they had the wrong man. Nor did they volunteer the Crimean documents that proved Iwan Marchenko was Iwan Grozny.

If nothing else, Moscow and Warsaw were embroiled in a conspiracy of silence. Both wanted or were willing to see John Demjanjuk hang for crimes he did not commit.

The unanswered question: Did the Israelis also know, or suspect, that Demjanjuk was not Ivan the Terrible before the Jerusalem trial? If not, did the Israelis conclude, or suspect, that Demjanjuk was not Ivan the Terrible during the trial? A United States appeals court accused OSI of being willing to see an innocent man hang so it could stay alive. Did Judge Levin’s court unjustly convict an innocent man to teach the nation of Israel a lesson in Holocaust justice?

Conspiracy or not, the Demjanjuk case was not over, as the Israeli Supreme Court had pointed out in its acquittal decision. There was still the matter of Sobibor, and OSI was not finished with John Demjanjuk.

OSI finally got around to following George Parker’s advice.

In his 1981 doubt memo, just weeks before the denaturalization trial of John Demjanjuk was about to open, Parker had recommended “radical surgery”: Drop the Iwan Grozny charge and build a case against John Demjanjuk as Iwan of Sobibor. Since there wasn’t enough evidence in 1981 to try Demjanjuk as a Sobibor guard, other than a disputed Trawniki card and an unchallenged statement by former Sobibor guard Ignat Danilchenko, OSI would in effect have to start over. After the U.S. Sixth Circuit Court of Appeals reinstated John Demjanjuk as a lawful American citizen in 1993, OSI took Parker’s advice. Eight years later and twenty-three years after the government first filed charges against Demjanjuk, OSI was ready. It still did not have a single live witness who could place Demjanjuk at Sobibor. What it did have, however, was a string of new documents found in Soviet and German archives.

John Demjanjuk didn’t stand a chance. The archives were stacked against him.

The denaturalization trial in the case of United States of America v. John Demjanjuk a/k/a Iwan Demjanjuk opened in Cleveland at the end of May 2001. As expected, the government presented an impressive array of historical and technical document experts to testify about the authenticity of the Trawniki card as a whole and the validity of each element on it, from signatures to photo and seals, from typefaces to paper and ink. This time, however, they had four new Trawniki identity cards to use for comparison. The new documents came from archives in a number of countries and, like the Demjanjuk card, had spelling mistakes. One of the new cards was a service pass issued to Ignat Danilchenko.

Prosecution historians and document examiners authenticated each new card, including the signatures of Trawniki commander Karl Streibel and supply officer Ernst Teufel, which matched their signatures on the Demjanjuk card. The four new ID cards destroyed the defense argument that Trawniki did not issue service passes, as some of its witnesses had testified at the first denaturalization trial and in Israel. And since none of the new cards was exactly alike, they also refuted the argument that the Demjanjuk card was unique, and therefore it must have been forged.

Demjanjuk’s new defense attorneys were John Broadley, who had helped the Demjanjuk family retrieve OSI documents through FOIA requests and lawsuits, and Michael Tigar. In the face of the new evidence, they mounted a well-prepared and aggressive defense. In fact, it was the best defense John Demjanjuk had received to date. But no matter how clearly, cogently, and fiercely they fought, they could not tumble the array of government expert witnesses.

In lieu of its own experts, the defense had to rely on an old strategy—pounce on what the prosecution experts had not done. They had not dusted the Demjanjuk Trawniki card for fingerprints—which would have proven that Iwan Demjanjuk had never touched the document—when the technology to do so was available. They failed to follow the archival trails of the new documents, which would have led them to evidence favorable to the defense. They also failed to establish a proper chain of evidence, which allowed for forgery and cast serious doubt on the authenticity of the new documents.