CINCINNATI (Jul. 30)
Lawyers for John Demjanjuk argued before an appeals court here that the Justice Department withheld crucial evidence that would have prevented their client from being extradited in 1986 on charges that he was “Ivan the Terrible,” the Nazi death camp guard.
In a 41-page brief submitted to the U.S. Court of Appeals for the 6th Circuit in Cincinnati, the defense lawyers claimed that the federal government, while seeking to deport Demjanjuk to Israel, had knowledge of statements from former Soviet guards and other evidence that would have cleared their client.
A key part of that evidence is the 1951 confession of Nikolai Shalayev, who identified himself and another man named Ivan Marchenko as the only two gas chamber operators at the Treblinka death camp during 1942 and 1943.
Demjanjuk, who was deported after the 6th Circuit denied his appeal of the extradition order, was convicted in Israel as “Ivan the Terrible,” the sadistic guard who operated the gas chambers at Treblinka, Poland, where 900,000 Jews died.
The 72-year-old former Cleveland-area autoworker is appealing his 1988 death sentence to Israel’s High Court of Justice.
His lawyers claim that he is a victim of mistaken identity and that the real “Ivan” was a guard named Marchenko whose whereabouts today are unknown.
HEARING SET FOR AUG. 11
In addition to several witnesses interviewed by Soviet authorities who identified Marchenko in a photograph shown to them and asserted that he was one of the two gas chamber operators, one guard pointed to Marchenko as the man Jews in the work crews called “Ivan the Terrible.”
“He exhibited special savagery in dealing with people in the killing process. He killed people with an obvious satisfaction and beat them with whatever was at hand and however he fancied,” the former guard described.
The documents filed by the defense lawyers came in response to a request by the 6th Circuit, which is reconsidering its 1986 extradition warrant.
In an unusual move, the Cincinnati court on its own ordered the Justice Department last month to provide all the evidence it had that could have exculpated Demjanjuk and to indicate when they first learned of each item of evidence.
A hearing has been set for Aug. 11.
In response to the court order, Justice Department lawyers argued two weeks ago that the Cincinnati court does not have the jurisdiction to reopen the case and that the extradition was not based on erroneous information.
They maintained that Ukrainian-born Demjanjuk entered the United States unlawfully because he “concealed and misrepresented his SS service” when he applied for immigration in 1952.
Demjanjuk’s lawyers concluded in their brief to the 6th Circuit that the court does have the jurisdiction to reopen the extradition proceedings and that evidence that could have undermined earlier judicial findings existed “prior to the Soviet Union’s disclosures of 1991,” released from archives as that country disintegrated.
His lawyers state that they were not given access to “foreign government information, except through the Department of Justice,” and the department was reluctant or refused to release exculpatory information.
Israel’s High Court justices, now considering the new evidence provided from the archives of the former Soviet Union, stated that Demjanjuk would have to be released if the prosecution could not prove beyond a reasonable doubt that Demjanjuk is “Ivan.”
In a recent development, Demjanjuk’s photograph was identified as “Ivan” by a witness who contradicted himself by saying another man was the infamous Nazi guard, the World Jewish Congress reported.
Last year, the WJC reported, Israel’s High Court of Justice admitted as evidence accounts from a Polish couple, Kazimierz and Maria Dudek, who identified the brutal Treblinka guard as Ivan Marchenko.
But, the WJC said, it received material earlier this month from the Justice Department indicating that Kazimierz Dudek, in 1986, had picked out Demjanjuk’s photograph as the man he knew as Marchenko.