studied both photos, then said they were pictures of the same person. “After a few more moments of careful study,” Dougherty wrote, “Horn positively identified the photographs of Iwan Demjanjuk as being the Iwan he knew at the gas chamber in Treblinka.”
It is not clear how Demjanjuk’s photo ended up on top of the first photo spread pile. Or whether it was placed there accidentally or deliberately.
But because the defense didn’t have a copy of the Dougherty-Garland reports and was not present at the Berlin photo identification session that Dougherty and Garland had conducted with Otto Horn, Martin had been unable to challenge Horn during his cross-examination. As a result, Judge Battisti was impressed with Horn’s pivotal testimony.
“The court finds no aberration in the conduct of these [Horn] identifications,” Battisti had ruled. “Since the Court finds both the pretrial and trial photographic identifications to be reliable, it must conclude that defendant was present at Treblinka in 1942-1943.”
If OSI had not been able to offer Otto Horn’s sworn testimony in court because it was not credible, or if defense attorney John Martin had confronted Horn with the contradictions during his cross-examination, would Judge Battisti have been so sure of himself? And if Martin had received a copy of the two OSI reports in time to submit them to the appeals court as new evidence, would the appeals court have declared a mistrial or ordered a new trial, as it did in the case of Frank Walus?
Not long after uncovering the Horn photo identification reports, the Demjanjuk family discovered two more nuggets in the Dumpster papers. The first was a cable about Feodor Fedorenko sent by the American embassy in Moscow to the State Department in August 1978, while the Justice Department was preparing for both the Demjanjuk denaturalization trial in Cleveland and the Fedorenko denaturalization trial in Fort Lauderdale. OSI had failed to share the cable with the defense.
The cable identified by name six former Treblinka guards who had been interviewed by the KGB. The defense felt that OSI had the legal obligation to reveal the statements of the six Trawniki men because they were potential defense witnesses.
The second nugget was a cable from the Justice Department to the Polish Glovna Komisia (Main Commission) dated July 29, 1981, a month after Judge Battisti had stripped Demjanjuk of his citizenship. OSI already had Soviet-supplied excerpts from eighteen statements by former Trawniki men about Fedorenko and Treblinka. In the cable OSI asked the Polish Main Commission to request the complete statements from Soviet officials.
The defense felt that it was entitled to the eighteen excerpts because it was possible that one or more of the Trawniki men knew the identity of the real Ivan the Terrible. The defense felt it was entitled to interview them as possible witnesses.
If the Demjanjuk family had been suspicious of OSI before it retrieved the Dumpster papers, it was now totally convinced that OSI was deliberately withholding exculpatory reports vital to the defense. The family engaged Washington attorney John H. Broadley and Ohio representative James Traficant to apply to the Department of State and the Department of Justice, under the Freedom of Information Act, for all Demjanjuk-related letters, cables, memos, and reports. If State and Justice refused to release the documents, or if the documents they did release were so heavily redacted as to make them useless, the family authorized the attorneys to take the government to court.
It was a two-year tug of war that took place while John Demjanjuk was on trial in Jerusalem. The Demjanjuk family was forced to sue. It won.
Among the documents the court ordered the Justice Department to release, over the strong objections of OSI, were two items pointing to Iwan Marchenko as Ivan the Terrible. The first item was an article about Treblinka guards written by a member of the Polish Main Commission. The article in the
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
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
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
