In a fact-finding hearing Tuesday, lawyers for John Demjanjuk, the former Cleveland-area autoworker sentenced to death in Israel as the Nazi death camp guard “Ivan the Terrible,” argued that government prosecutors failed to disclose key evidence that could ultimately have prevented their client’s 1986 extradition to Israel.
Patty Merkamp Stemler, chief of the appellate section of the Justice Department’s criminal division, admitted to a federal appeals court here that the government had additional evidence and that it may have been prudent for the department to have disclosed all testimony in its possession.
However, she argued, the outcome of the extradition proceedings would have not been significantly affected.
On its own initiative, the three-judge panel for the 6th U.S. Circuit Court of Appeals had set this unusual hearing to re-examine its 1986 decision to extradite Demjanjuk.
The court ordered government lawyers to present evidence they possessed that points to another man, Ivan Marchenko, as the gruesome “Ivan the Terrible” and to indicate when they had knowledge of such evidence.
Primarily in question are documents turned over to the Justice Department in 1978 by the former Soviet Union which contain excerpts from interrogations of Pavel Leleko and Nikolay Malagon, former guards at the Treblinka camp in Poland, where “Ivan” operated the gas chambers.
In these statements, not disclosed by the government, both guards identified Marchenko as the guard in question. According to Demjanjuk’s lawyers, the two guards also clearly identified a second operator named Nikolay and stated that witnesses interviewed spoke of only two gas chamber operators.
‘DOES NOT NEGATE DEMIANJUK’S PRESENCE’
The importance of this information has been “way overstated” by Demjanjuk’s lawyers, Stemler maintained.
“Our position is that the existence of Marchenko does not negate Demjanjuk’s presence” at Treblinka.
She argued that there was no evidence to indicate that only two people operated the gas chambers where 900,000 Jews were murdered during World War II.
Moreover, up until 1976, the government sought to denaturalize Demjanjuk on charges that he was a guard at the Sobibor death camp, but survivors around the world who were shown Demjanjuk’s photograph in connection with the denaturalization case of another guard pointed to Demjanjuk as “Ivan Grozny” (Ivan the Terrible) from Treblinka.
The federal judges, however, pressed Stemler to justify the department’s position that the Leleko and Malagon statements, even if inadvertently not disclosed, had no bearing on the outcome of the extradition hearings.
In response, she said that in extradition proceedings, contradictory evidence is not relevant and the prosecution is only required to show that there is probable cause to believe that the defendant committed the offense.
Evidence recently released from the archives of the former Soviet Union includes some statements by former Soviet prisoners of war who worked as concentration camp guards and identified Ivan Marchenko as the dreaded “Ivan the Terrible”
Justice Department officials have maintained that the task of assessing the significance of conflicting evidence rests with the judges in Israel, rather than those in Cincinnati.
‘100 PERCENT CERTAINTY’
Demjanjuk is currently appealing his conviction and 1988 death sentence in Israel to the Israeli High Court of Justice. Justice Aharon Barak of that court told prosecutors in Israel that the conviction would not hold up if there was reasonable doubt that Demjanjuk was in fact the sadistic Treblinka guard “Ivan.”
Michael Tigar, attorney for Demjanjuk, told the court that the media is reporting that a decision is imminent in Israel and that he fears for Demjanjuk’s safety if he is deported by Israel to somewhere other than the United States.
Before the hearing, Demjanjuk’s son, John Jr., who visited his father in June during final summations in Israel, told the American Israelite that documents show with “100 percent certainty that my father was convicted unjustly” and that “Ivan Marchenko is the person responsible for the acts my father is accused of.”
He charged the Justice Department and the Israeli police with manipulating Holocaust survivors who identified his father as “Ivan the Terrible” and said the government lawyers should be disbarred.
Demjanjuk Jr. said his father is “confident and encouraged that his adopted country has come back to his rescue.” He believes that the Israeli court’s decision will be overturned, not because of reasonable doubt but because evidence clearly shows his father is not guilty.
The Archive of the Jewish Telegraphic Agency includes articles published from 1923 to 2008. Archive stories reflect the journalistic standards and practices of the time they were published.
