motion, Walus appealed, arguing that Hoffman had placed too heavy a burden of proof on him and had ruled in favor of the government on each and every question of evidence and procedure. He accused Hoffman of making “inflammatory” in-court statements and showing bias throughout the trial. He further argued that the new evidence proved he was innocent. Walus asked the appeals court to reverse Hoffman’s decision.
The appeals court stopped just short of ruling judicial bias, one of the most serious charges a plaintiff can level against a sitting judge. In its twenty-nine-page opinion, it called Hoffman’s in-court rulings and his weighing of evidence “disturbing… troubling… troublesome” at least seven times.
The court was troubled by how Hoffman and the government had handled eyewitness testimony. Like Judge Roettger in the Fedorenko case, the appeals court called the Walus photo spread and identification procedure deeply flawed. It pointed out that Walus’s picture was taken in 1959, when he was thirty-seven years old, almost twenty years after he had allegedly committed war crimes. Furthermore, the photograph (an enlargement) was light, grainy, and out of focus, which made identifying facial features nearly impossible.
The court found even more troubling the fact that Israeli police and investigators told at least some, if not all, of the witnesses that Frank Walus was under investigation for war crimes committed in Kielce and Czestochowa before showing them the photo spread. And when one witness said she could not identify anyone, the investigator pointed to Walus’s picture and asked if she recognized him.
Given the poor quality of the Walus photo spread and the attempts to influence and prompt witnesses, the appeals court accused both Judge Hoffman and the government of giving too much uncritical weight to photo identification. The court further faulted Hoffman because he repeatedly “frustrated” defense attempts to cross- examine prosecution witnesses. Quoting trial transcripts at length, the court pointed out that when the defense asked a prosecution witness if he recalled seeing any scars or other identifying marks on Walus, Hoffman blocked the line of questioning.
“Let’s not waste our time,” he told the defense attorney.
The appeals court called the government’s attempt to impugn Walus’s documentary evidence “weak” because it failed to craft a coherent, credible theory to “sweep it away.” Instead, the government nitpicked the “inconsequential inconsistencies” in the array of documents, then tried to explain the evidence away with “troublesome” forgery theories that strained credulity. And instead of thoroughly investigating Walus’s alibi during the pretrial discovery period, as was its obligation, the court said, the government relied on yet another unsupported Nazi conspiracy theory.
The appeals court concluded that the instances of Judge Hoffman’s troubling in-court decisions, rulings, and interferences did not “support the defendant’s extraordinary charge of bias.” It therefore declined to reverse Hoffman, but it was a close call. The court found Walus’s new evidence so convincing that to affirm Judge Hoffman would be an “intolerable injustice.” The court ordered a new trial—to be presided over by a judge other than Julius Hoffman.
The problem of whether to retry fell into Allan Ryan’s lap. Like the appeals court, he had serious doubts about the guilt of Frank Walus and was not about to leap into the fire with his eyes closed. He sent two investigators to Europe to examine the evidence for and against Walus “down to its floor nails.”
The OSI investigators interviewed farmers, farmworkers, and German health insurance officials. They examined whatever insurance records they could. Their seven months of digging either supported Walus’s alibi or led to dead ends. OSI concluded: “There is no question of retrying the case. The only issue we face is how to back away from it.”
Ryan dropped the case with an apology to Walus. OSI offered to pay his out-of-pocket expenses but not his legal expenses, which amounted to $60,000. A district court judge eventually ordered the government to pay Walus $31,000 in court costs.
Everyone lost.
The Israeli police, who had found and interviewed the witnesses for the Walus trial, as well as the witnesses themselves, were devastated by Ryan’s decision not to retry. To them, Walus was a Gestapo murderer. They saw. They knew. No one or nothing could ever change their minds.
Menachem Russek, chief of the Israeli Nazi war crimes investigation unit, voiced the feelings of all in a moving letter to Ryan:
It’s 3:00 a.m. on Thanksgiving morning, and my ears still echo from the hard words of your telephone call. Your expression “this is my decision” hangs heavy on my heart and prevents me from sleeping. I suddenly remember that terrible day when I arrived at the Auschwitz death camp and saw the long line of elder men and women and mothers with their children in their arms, surrounded by S.S. troops, marching to their deaths…. I saw the flames and smoke from those innocent victims rise to the sky. I raised my eyes to the heavens in search of a miracle, but none came. A terrible feeling of helplessness overcame me….
This evening when I heard your decision regarding the Frank Walus trial, I lowered my eyes as, again, a feeling of helplessness overcame me. This time with shame… I saw the [witnesses] spiritually broken, tears in their eyes, as though blood was still running from their wounds, not believing their own ears that a decision had been taken not to renew the Walus case. I felt them losing their faith in the world’s greatest democracy. They feel they have been deceived, in that the trial in Chicago was no more than a well directed show….
Your decision has left me in shock…. It hurts that I must say these strong words, but please understand and accept them as words of pain coming from a man who lost most of his family in the Nazi concentration camps. A man who has seen the terrible atrocities of the Holocaust and the destruction of his people in Europe.’
Walus was in pain as well. “It was a terrible nightmare,” he said after the appeals court decision. “I feel happy because… this darkness is over…. I will never get back my reputation.”
Walus never did. Jews still believed he was a convicted Nazi, and Chicago’s southwest side Poles, who had no love for the Gestapo, shunned him.
Judge Hoffman didn’t fare well, either. In 1982, the Executive Committee of the U.S. District Court rapped his knuckles. It ordered that he be given no new cases because of “his age and complaints that he was acting erratically and abusively from the bench.” He died in 1983 at the age of eighty-seven.
Indeed, the last thing OSI needed was another Walus case.
George Parker was aware of the pressure OSI was under from Congress, the Justice Department, and the Jewish community. He knew that the Walus and Fedorenko defeats—the Supreme Court had not yet ruled on Fedorenko—fueled suspicions in the emigre communities that Justice was fronting a Jewish conspiracy of revenge. Convinced that OSI was blindly walking into another wrong-man fiasco, Parker wasn’t sure what he should or could do to prevent OSI from making a legal and ethical blunder. He discussed his concerns with a colleague. She suggested that he write a memo to Rockler and Ryan, presenting a point-by-point analysis of the case against Demjanjuk and spelling out OSI’s options.
CHAPTER TWENTY
When we filed our case against John Demjanjuk in 1977, Parker began his memo, we had no evidence that Demjanjuk was a Trawniki man who had served as a guard at Sobibor.{George Parker’s memo is paraphrased here for readability and clarity. In no way does this rendering alter the meaning or emphasis of the original document.} All we had were references and unsubstantiated quotes in a communist newspaper.
New information in the communique from Moscow contradicts our current pleading that Demjanjuk is Ivan the Terrible—two certified photos of a Trawniki-issued ID card and Soviet-provided statements from Danilchenko and two former Treblinka guards. The Trawniki card and Danilchenko’s statement place Demjanjuk at Sobibor. The two Treblinka guards said he was not at Treblinka. This as yet unproven evidence warrants a reevaluation of our pleading.
We have eyewitness evidence from the Israeli police positively identifying Demjanjuk as Ivan the Terrible.
