Cincinnati Court Sharply Critical of Prosecutors in Demjanjuk Case

Apparently dissatisfied with the findings of a special master that it itself appointed, a federal appeals court here has sharply questioned whether U.S. prosecutors improperly withheld evidence during extradition proceedings against accused Nazi war criminal John Demjanjuk.

Demjanjuk, who was acquitted by the Israeli Supreme Court of charges of being the notorious Treblinka guard “Ivan the Terrible, ” is meanwhile sitting in an Israeli prison awaiting a final decision from the Israeli high court on motions that he should be retried for war crimes.

The 6th U.S. Circuit Court of Appeals held a hearing last Friday that was supposed to focus on whether the court should accept the findings of U.S. District Judge Thomas Wiseman Jr. of Tennessee.

Wiseman was appointed by the court last year as a special master to investigate allegations of prosecutorial misconduct when Demjanjuk, a former Cleveland autoworker, was stripped of his American citizenship and extradited to Israel in 1986.

In a June 30 report, Wiseman concluded that although the government had failed to pursue some leads that could have cleared Demjanjuk, there was no intentional misconduct on the part of the prosecutors.

He recommended that the case be closed.

But the three-judge appeals panel was apparently not satisfied with Wiseman’s conclusions. During Friday’s hearings, they were sharply critical of the Justice Department’s handling of the case and virtually put the government lawyers themselves on trial.

Their questions suggested that the Justice Department’s failure to turn over evidence to Demjanjuk’s attorneys would require the re-opening of his extradition case and perhaps lead to the reinstatement of his American citizenship.

HEARING SCHEDULED BEFORE ISRAELI ACQUITTAL

The hearing on Friday was scheduled before events in Israel put Demjanjuk’s case into a new light. On July 29, the Israeli Supreme Court acquitted Demjanjuk of being the notorious Ivan.

But at the same time, the Israeli high court found that there remained compelling evidence that he had served as an SS guard at the Sobibor death camp and the Flossenburg and Regensburg concentration camps.

It was on these grounds that several groups of petitioners, including Holocaust survivors and the World Jewish Congress, called for a new trial.

Last week, Israeli Supreme Court Justice Theodore Orr ordered a further delay in Demjanjuk’s deportation until the court could hear additional petitions calling for his trial here on new war crimes charges.

Last month, the three-judge panel of the appeals court in Cincinnati ruled that Demjanjuk could return to the United States once granted his freedom in Israel.

After an appeal to the full court was rejected, Attorney General Janet Reno announced that the Justice Department would not appeal to the U.S. Supreme Court.

The federal appeals court’s chief judge, Gilbert Merritt, opened the proceedings last Friday by responding to statements by Jewish organizations and members of Congress denouncing him as being “lawless” and a “Nazi sympathizer.”

“What we are deliberating about in this case is means and not ends,” said Merritt.

“We never doubted that the end was reasonable — bringing to the bar of justice and prosecuting those responsible for Treblinka and other death camps.

“But because the court has questioned the means used by the prosecution, some have said that the court also questions the ends. That is wrong,” he said.

Merritt reiterated in his statement that the court was only concerned with “the propriety of the steps used to achieve the worthy goal of punishing those responsible” for the Holocaust.

Michael Tigar, a University of Texas law professor who is Demjanjuk’s chief attorney, argued that even if all of the factual findings in Wiseman’s report were accepted, “there are still grounds for granting relief” to Demjanjuk.

Tigar claimed that the Justice Department was “neglectful” in its responsibility to turn over exculpatory evidence and that other potentially exculpatory evidence “was ignored.”

He argued that the government’s actions in the Demjanjuk case “endangered Mr. Demjanjuk’s ability to mount a defense.”

Justice Department lawyer Patty Merkamp Stemler acknowledged that in hindsight federal prosecutors might have acted differently and disclosed to Demjanjuk’s defense lawyers testimony from other guards at Treblinka that “Ivan the Terrible” was someone other than Demjanjuk.

But she said that the prosecutors had believed that the testimony was unreliable, and that it would have hardly helped Demjanjuk’s case anyway since it placed him at Treblinka.

Judge Pierce Lively, another member of the panel, questioned Stemler closely on allegations of administrative problems in the handling of case files.

Referring specifically to charges that some evidence was “lost” by the Office of Special Investigations — a special branch of the Justice Department that prosecutes suspected Nazi war criminals — Lively mentioned that he “could not understand the procedures in this OSI office.”

Lively said, in particularly critical tones, that the alleged mishandling of evidence by the Department of Justice was “more than sloppy.”

Stemler replied that no evidence had been lost in the Demjanjuk case.

The court gave no indication as to when it would render its decision.

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