Federal Court in Demjanjuk Appeal Calls for Inquiry into Possible Fraud

A federal appeals court here has taken the unusual step of appointing a special investigator to determine whether the Justice Department “misled” the court during hearings that led to the extradition in 1986 of John Demjanjuk to stand trial in Israel as “Ivan the Terrible.”

The court’s order, issued Monday, followed a fact-finding hearing in which government counsel admitted that “mistakes were made” when the Justice Department failed to disclose evidence suggesting that a man identified as Ivan Marchenko was in fact the cruel Nazi guard referred to by Jewish prisoners at the Treblinka death camp as “Ivan the Terrible.”

In its three-page order, the Court of Appeals for the 6th Circuit rejected the Justice Department contention that the court does not have the power to review its decision.

The “bedrock question” for the court, according to Chief Justice Gilbert Merritt, is whether failure by government attorneys to disclose exculpatory information constituted fraud.

To make its determination, the court has appointed Thomas Wiseman Jr., a federal district judge in Nashville, Tenn. as a special master and instructed him to prepare a report after questioning four government lawyers who previously worked on the Demjanjuk case.

The four are Allan Ryan Jr., a former director of the Justice Department’s Office of Special Investigations, which prosecuted the case; Norman Moscowitz and George Parker, attorneys who worked at OSI; and John Horrigan, a former assistant U.S. attorney for the Northern District of Ohio.

Patty Merkamp Stemler, chief of the appellate section of the Justice Department’s criminal division, argued in last week’s hearing that the prosecution is not required to prove guilt or innocence but only to show probable cause that the defendant committed the offense.

EVIDENCE FROM OTHER GUARDS

She maintained that during extradition proceedings, the department was not obligated to disclose certain documents — including excerpts from statements of other prison guards it had obtained from Soviet authorities — because they did not contain references to “Ivan the Terrible,” although they did mention a “Marchenko.”

She also said the federal court does not have jurisdiction to review it 1985 judgment, since the case is now in the hands of an Israeli court.

Demjanjuk, a 72-year-old former Cleveland area autoworker, claims that he is innocent and that this is a case of mistaken identity. He is appealing the decision of an Israeli lower court which convicted him of war crimes and sentenced him to death as “Ivan the Terrible” in 1988.

A response by Israel’s High Court of Justice is reported to be imminent.

The Ukrainian-born Demjanjuk, who has admitted that he lied about his whereabouts during World War II when he applied for American citizenship, has been identified as the sadistic “Ivan” by several survivors of the Treblinka death camp, where 900,000 Jews were murdered.

He has denied having been at any death camp and said he was a prisoner of war during the time in question.

But documents obtained from the former Soviet Union include testimony about Demjanjuk or a man with a similar name.

A former Treblinka guard, Nicholai Malagon, testified that a man named Ivan Marchenko operated the gas chambers with particular brutality.

But he also recalled that a man named Ivan Demedyuk or Dem’yanuk worked at Treblinka as a cook and was transferred to gas chamber duty.

And another Ukrainian guard, Ignat Danilchenko, told the Soviets that Demjanjuk was so zealous in his participation at the Sobibor death camp that the Germans gave him extra time off.

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