The United States Court of Appeals
Sixth Circuit

(Part 6 of 9)

VI.

A.

The attitude of the OSI attorneys toward disclosing information to Demjanjuk's counsel was not consistent with the government's obligation to work for justice rather than for a result that favors its attorneys' preconceived ideas of what the outcome of legal proceedings should be. The master found that the OSI attorneys operated on the premise that Demjanjuk was Ivan the Terrible and that this belief caused them to be "inadequately skeptical" of their case when confronted with evidence pointing to Marchenko as Ivan Grozny. S.M. Report at 202-03. We do not believe their personal conviction that they had the right man provided an excuse for recklessly disregarding their obligation to provide information specifically requested by Demjanjuk (as found by the master) the withholding of which almost certainly misled his counsel and endangered his ability to mount a defense (as found by the master).

B.

The OSI attorneys acted with reckless disregard for their duty to the court and their discovery obligations in failing to disclose at least three sets of documents in their possession before the proceedings against Demjanjuk ever reached trial.

1. The Fedorenko Protocols should have been disclosed. They consisted of information provided by a foreign government that supplied some support to Demjanjuk's basic claim from the beginning--that he was a victim of misidentification. The statements of the two former guards at Treblinka identified one of the Ukrainians who operated the gas chambers as "Marchenko."

In his statement, taken in 1945 near the end of World War II, the guard Leleko named Nikolai and Marchenko as the "motorists" and stated that Marchenko had cut women's breasts with his sword. In addition, the protocols contained the transcription of a detailed taped interrogation of Fedorenko conducted in 1973 by Soviet officials. Fedorenko stated that he remembered two guards at the gas chambers, Nikolay and Ivan. Two Jewish survivors, Rosenberg and Epstein, had also described two operators of the gas chambers called Nikolai and Ivan. Marchenko's given name was Ivan.

The guard Malagon also identified Marchenko as a motorist in a 1978 statement. He referred to him, however, as "Marchenko, Nickolay," providing support for the OSI theory that Marchenko was the Nikolai described by some survivors and Demjanjuk was the notorious Ivan. This theory was weakened, however, by the fact that Marchenko's name appeared on the list of Treblinka personnel furnished by the Soviet government and Demjanjuk's name did not appear. This same witness, Malagon, identified Demjanjuk's photograph as that of a cook at Treblinka, not as Ivan the Terrible when he was interrogated on October 2, 1979.

The information in the Fedorenko Protocols would have bolstered Demjanjuk's contention that he was not Ivan Grozny of Treblinka, and would have provided information pointing toward Marchenko as the notorious Ukrainian. The information would have assisted the district court as well. The court heard no evidence in support of Demjanjuk's claim of misidentification beyond his own denial. This information would have shown the court that there was evidentiary support available, and in the government's possession, that supported that denial.

2. The list of Ukrainian guards at Treblinka furnished to OSI by the Polish government was certainly exculpatory. In 1982 Demjanjuk's attorney advised OSI Director Allan Ryan that he had learned of 1979 correspondence between the director of the Polish Main Commission Investigating Nazi Crimes in Poland [**41] and OSI attorney Martin Mendelsohn and requested copies "pursuant to discovery motions and interrogatories . . . ." Jt. App. 149.

Attorney Moscowitz responded on August 17, 1992, enclosing copies of the reports from Poland. Moscowitz advised that OSI was furnishing the material "as a matter of courtesy and not under any obligations of discovery, which ended long ago." Jt. App. 150.

Demjanjuk's attorney persisted, asking for copies of any other documents received from foreign governments (a duty to furnish such documents existed from the time of Demjanjuk's first set of interrogatories, the master found). Attorney Bruce Einhorn replied for OSI that "all relevant and discoverable documents in the Government's possession have been provided to you under the Federal Rules of Civil Procedure." The letter also advised that OSI had undertaken no inquiry to determine whether other documents being sought had already been provided "or indeed whether such documents even exist." Jt. App. 152.

The 1979 letter from the Polish Main Commission advised that the Commission had no data concerning Demjanjuk. Jt. App. 502. Among the documents forwarded with the director's letter was a list of known Ukrainian guards who had worked at Treblinka. Both Fedorenko and Marchenko's names appeared on the list. Demjanjuk's name did not appear.

Both Parker and Moscowitz, the two OSI attorneys most involved in preparing the Demjanjuk denaturalization case, saw the material from the Polish Main Commission. Parker testified that he thought the material had no value in the Demjanjuk case, and that he did not notice Marchenko's name. Moscowitz testified he thought it did not relate to the Demjanjuk case. This was a strange conclusion, given the fact that the director of the Commission sent the material in response to a request from OSI for information concerning Demjanjuk and two other individuals. Jt. App. 502.

The Polish Main Commission material would not have established conclusively that Demjanjuk was not a guard or motorist at Treblinka. There were approximately 100 Ukrainians there at one time or another. Nevertheless, the defense could have argued from the absence of Demjanjuk's name that surely the Polish investigation would have turned up the name of Treblinka's most notorious guard and included that person's name on the list. If Allan Ryan's proclaimed policy of furnishing everything had been followed, it is clear that the Polish documents would have been furnished in 1979, before the denaturalization trial, not three years later.

3. Otto Horn's identification of Demjanjuk as Ivan Grozny from photo spreads was extremely important government evidence at the denaturalization trial. Horn was a German guard who had been stationed at Treblinka. He was tried for war crimes in 1964 or 1965 and acquitted. His evidence was presented in the denaturalization proceedings in the form of a videotaped deposition taken in Berlin on February 26, 1980.

Demjanjuk's counsel objected to testimony on the videotape concerning the identification from photographs on the specific ground that OSI personnel had visited Horn three months earlier, in November 1979, and conducted a photo identification procedure in the absence of Demjanjuk's attorneys. Moscowitz responded that Demjanjuk's counsel had full opportunity to cross-examine Horn when the deposition was taken in 1980.

What neither Judge Battisti nor Demjanjuk's counsel knew was that the contemporaneous reports of the 1979 Horn interview by the OSI investigator and historian directly conflicted with Horn's testimony at the deposition that when [**44] he finally identified Demjanjuk's photograph in the second spread he could not see the first set of pictures. Yet, the reports both stated that Horn was unable to identify Demjanjuk's photo in the first spread and only did so while examining the second spread and noticing the resemblance between the Demjanjuk photo in that set and the Demjanjuk photo in the first spread, which was lying face-up where Horn could see it as he examined the second set.

As we have noted, Chief Judge Battisti overruled Demjanjuk's objections to the Horn video deposition and found that there were "no aberrations" in the process by which Horn identified a photograph of Demjanjuk as Ivan. We believe that if Demjanjuk's attorneys had had the investigator and historian's reports of the first session, with their strong indication of a suggestive identification procedure, they could have conducted a cross- examination of Horn at the videotaped deposition that would have raised serious questions about the witness' identification.

Both the district court and Demjanjuk's counsel were entitled to have these reports produced. Moscowitz, who was the lead attorney at the denaturalization trial, testified before the Special Master that he never read the Dougherty and Garand reports before the trial. This, despite the fact that Sinai, to whom the reports were addressed, clearly directed that a copy be made and sent to Moscowitz. If Moscowitz did not read the reports, knowing he planned to introduce the video deposition at the trial, this failure constituted "reckless disregard for the truth."

OSI was not a large office. We can find no excuse for such casual treatment of information that could cast doubt on the validity of important testimony. Moscowitz was present at the first session with Horn, but testified that he looked away during the actual identification, leaving that to the investigator and historian. He did this, he said, in order to avoid the possibility of being called as a witness at the denaturalization trial when the deposition to be taken a few months later would be introduced. Not having witnessed the identification himself, we can find no reasonable explanation in this immense record for his failure to read and acknowledge the importance of the contemporaneous reports of the trained investigator and historian, nor can we understand how Sinai determined that two reports addressed to him should be routed to Moscowitz without even reading them.

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