The Cessna wasted no time taking off for Cleveland’s Hopkins International Airport, where a crowd of protesters and friends eagerly waited. At the same time, protesters led by Rabbi Avi Weiss were holding vigil outside Demjanjuk’s home in Seven Hills. Cluttering the lawn next to them were TV cameras and booms, walkie- talkies, Nikons, and reporters chatting on mobile phones.
Demjanjuk fooled them all. Just as the Cessna was approaching Hopkins Airport, the pilot radioed the tower with a new flight plan. He was going to land at the small Medina Municipal Airport a few miles south, he said. And when the plane taxied to a stop on the Medina runway, Demjanjuk’s escorts hurried him into a Lincoln Continental, which whisked him away to an undisclosed location for an undisclosed period of time to keep him safe.
It was not the welcome home that John Demjanjuk had dreamed about for eight years in his small cell in an Israeli prison.
The U.S. Sixth Circuit Court of Appeals had been following the unfolding Marchenko drama in Jerusalem with great interest and concern. Did OSI know or suspect, the court asked itself, that Iwan Marchenko was Iwan Grozny when it tried John Demjanjuk on immigration fraud charges as Ivan the Terrible?
To get to the bottom of its own question, the appeals court, like the Israeli Supreme Court, committed an act of courage. It reopened the denaturalization issue and appointed an independent judge (special master) to investigate OSI on the court’s behalf. What did OSI know? When did OSI know it? Did OSI commit prosecutorial misconduct? Did OSI perpetrate fraud on the court?
The answers were sitting inside a Dumpster.
CHAPTER FIFTY-TWO
Ever since Judge Battisti had stripped John Demjanjuk of his U.S. citizenship in 1981, the Demjanjuk family and its attorneys suspected that OSI was withholding documents they were entitled to under the law. OSI had written to Moscow, Berlin, Jerusalem, and Warsaw asking for any and all documents relating to Iwan Demjanjuk. And OSI investigators had traveled to the Soviet Union, Israel, Germany, and Poland looking for and interviewing potential witnesses. As a result, OSI received several information packets from overseas. But in spite of all the international traffic and investigative flurry, OSI had given the Demjanjuk defense team very few documents and only a handful of names of potential witnesses who might clear Demjanjuk’s name or strengthen his defense.
OSI confirmed defense suspicions when it deliberately withheld Soviet-provided statements from five former Trawniki men until
Feigning outrage, Demjanjuk’s defense attorney John Martin accused the government of prosecutorial misconduct because it failed to inform the defense of potential new witnesses
Martin was half right. Judge Battisti found that the government was indeed at fault when it failed to disclose in a timely manner the identity of one witness who had positively identified Demjanjuk’s photo. On the other hand, he found that the government did not breach any rule when it withheld the identities of the other four Soviet witnesses, because they had denied knowing Demjanjuk at Trawniki and failed to identify the photos.
Battisti concluded that the sworn statements of the five witnesses, either as individuals or as a group, would not have changed his decision in the case in any way. Therefore, Demjanjuk was not entitled to a new trial.
The five-document flap was not a futile and meaningless legal maneuver because it raised a critical question. If OSI had withheld one set of documents that the defense was entitled to, how many more documents was it hiding from the defense?
Immediately after Battisti’s ruling, Martin demanded that OSI deliver all its Demjanjuk-related documents, including those it had received from West Germany, Poland, Israel, and the Soviet Union. He needed them, Martin argued, to prepare the defense’s denaturalization appeal.
OSI responded: “All relevant and discoverable documents in the Government’s possession have already been part of the records of these proceedings.”
That wasn’t true.
Denied the undisclosed documentary evidence buried in OSI files, John Martin had lost the denaturalization appeal, Mark O’Connor had lost the asylum plea, Judge Angelilli had ordered Demjanjuk to be deported to the Soviet Union, the Sixth Circuit Court of Appeals in Cleveland had approved Demjanjuk’s extradition to Israel, and Judge Levin had condemned Demjanjuk to death by hanging.
All through these legal battles, the Demjanjuk family and its attorneys never gave up searching for the exculpatory evidence it was convinced OSI was hiding. They got a bizarre break in the early 1980s, while Demjanjuk was waiting for the appeals court to review Judge Battisti’s denaturalization order. Two enterprising Estonian supporters of John Demjanjuk began collecting OSI’s garbage each day from a Dumpster behind the Hamilton Building on K Street in Washington, D.C., where OSI rented office space. Then they packaged the papers they found mixed in with Styrofoam coffee cups and apple cores and sent them to the Demjanjuk family. Some of the papers were stamped CLASSIFIED.
The first two garbage nuggets were a pair of reports describing in detail OSI’s photo identification interview with Otto Horn at his home in Berlin in 1979. Horn was the Treblinka SS officer in charge of burying the corpses taken from the gas chambers. His photo identification of Demjanjuk as Iwan Grozny who operated the gas chamber at Treblinka was especially important because he was a German officer, not a Jewish survivor, and because he had worked side by side with Iwan the Terrible for more than a year. If anyone could identify him, it would be Otto Horn.
One Dumpster report was written by investigator Bernard J. Dougherty Jr., the other by historian George W. Garland. The reports, which complemented each other, proved that Horn’s identification of Demjanjuk as Ivan the Terrible was compromised and suggested that he had committed perjury.
In effect, the two reports completely undermined the credibility of Horn’s entire testimony.
In preparation for the denaturalization trial in Cleveland, Dougherty and Garland had shown two legally correct photo spreads to Otto Horn. Each spread contained eight photos. The Trawniki card photo was in the first batch; Demjanjuk’s visa application photo was in the second. Following OSI rules, both investigators wrote independent reports after the interview.
OSI prosecutor Norman Moscowitz had questioned Otto Horn about the first photo spread during his videotaped testimony for the 1981 denaturalization trial in Cleveland.
“Did you in fact identify or recognize anyone in those photographs?” Moscowitz asked Horn.
“Iwan,” Horn testified without hesitation.
That is not what Dougherty recalled. “Horn studied each of the photographs at length,” Dougherty wrote, “but was unable to positively identify any of the pictures.”
Next, Moscowitz questioned Horn about the second photo spread. “When you looked at those photographs… where was the first [set]?”
Whether Horn could or could not see the first photo of Demjanjuk while he studied the second set of photos was a critical point. If Horn could see the first picture, his identification of the second picture would be inadmissible.
“They were put away,” Horn testified without hesitation.
That’s not what Dougherty recalled. “The first series of photographs,” Dougherty wrote, “was then gathered and placed in a stack, off to the side of the table—with that of Demjanjuk lying face up on top of the pile.” Horn
