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
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
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.”
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
“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
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.
CHAPTER FIFTY-THREE
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
