demanuk011.html = CRITIQUE of Wiseman's Report (78kb); 1993-10-12
CRITIQUE by W.W. Zuzak, Ph.D., September, 1993
of Report on the John Demjanjuk Case by Judge Thomas Wiseman
presented June 30, 1993
to the U.S. Court of Appeals for the Sixth Circuit
Table of Contents
I.A. Proceedings before the Special Master
I.B. Witness Biographies
I.C. The Allegations
II. HISTORY OF THE CASE
II.A. Aktion Reinhard
II.B. The Investigation in Israel
II.C. Founding of the Special Litigation Unit (SLU)
II.D. Allegations of Improper Political Influence
The Turf Battle
George Parker's Memorandum
OSI's Relations with Jewish Groups
II.E. The Fedorenko (1978) Protocols
II.F. The Polish Main Commission Information
II.G. German SS Officer and Nazi Collaborator Witnesses
II.G.1. Franz Suchomel
II.G.2. Kurt Franz
II.G.3. Nazi Collaborator Witnesses
II.G.4. Otto Horn
II.H. The Danilchenko (1979) Protocols
II.I. Assessment of the Evidence
II.I.1. The Marchenko Evidence
II.I.2. The Sobibor Evidence
II.I.2.A. George Parker's "Ethics Memorandum"
II.I.2.B. Norman Moscowitz and the Transfer Theory
II.J. The Dorofeev (1980) Protocols
II.K. Amending the Complaint
II.L. The Trial
II.M. The Mistrial Motion
II.N. The Judgement
II.O. The 1982 Polish Main Commission Dispute
II.P. Post-Judgement Motions
II.Q. The Deportation Proceedings
II.R. The Extradition Proceedings
II.S. The FOIA Litigation
III. THE DISCOVERY REQUESTS
III.A. The Request for Production of Documents
III.B. The Interrogatories
III.B.1. The First Set of Interrogatories (Nov. 18, 1977)
III.B.2. The Second Set of Interrogatories (May 8, 1978)
III.B.3. The Fourth Set of Interrogatories (Apr. 14, 1980)
IV. LEGAL STANDARDS
IV.A.1. Civil Rules
IV.B. Fraud on the Court
IV.B.1. Intent Element
IV.B.3. Standard of Proof
IV.C. The Allegations Revisited
IV.C.1. "Introduction of evidence known to be false"
IV.C.2. "Introduction of evidence ... "
IV.C.3. "Making promises ... which are not kept"
IV.C.4. "False representations ..."
IV.C.5. "Possession of exculpatory evidence ..."
IV.C.6. "Failing to continue to scrutinize the flaws ..."
IV.C.7. "Adding inconsistent charges to the complaint ..."
VII. FINDINGS AND RECOMMENDATIONS OF WILL ZUZAK
An examination of all this material illustrates quite clearly that the guilt or innocence of John Demjanjuk remains a secondary issue to the people who have been persecuting him for these many years. To them, the case has little to do with justice. The two main purposes of the persecution and trial of John Demjanjuk has been to promote the mythology that 850,000 Jews died in Treblinka and that Ukrainians were mainly responsible for this. In the text of this CRITIQUE, we shall refer to this as the MESSAGE.
Secondly, it has become perfectly clear that no credible evidence has been presented to the courts, which indicates that John Demjanjuk was ever in Treblinka, Sobibor or Trawniki. I suggest that the prosecution knew perfectly well that John Demjanjuk was innocent long before the original denaturalization trial in February 1981 or the Jerusalem Trial in 1987-88.
Then why go to the trouble of prosecuting an innocent man? The answer presumably lies in the maxim of Marshall McLuhan "The MEDIUM is the MESSAGE". If John Demjanjuk were guilty, nobody would have lifted a finger in his defense. The trial would have been short with no controversy and little opportunity to spread the MESSAGE. However, because he is innocent (and quite obviously so), his family and knowledgeable supporters have presented a vigorous defense, there has been enormous controversy and there has been plenty of opportunity to "educate" the public with a "politically correct" version of the HOLOCAUST. And because this is being done in the courts (and the Demjanjuk defense is not interested in contesting the "facts" of the HOLOCAUST), it lends legitimacy to the process.
The format of the CRITIQUE follows the table of contents of Judge Wiseman's Report. In each section, I either summarize the contents and/or highlight particularly inappropriate comments and conclusions together with my criticisms. My comments are usually encompassed by square brackets.
Page number references in brackets T, V, A refer to the Transcripts, Verdict and Appeal of the Jerusalem Trial 1987-88, whereas "tav" and nun" refer to the prosecution and defense documents in that trial. SLU and OSI refer to the Special Litigation Unit and the Office of Special Investigations of the U.S. Department of Justice. INS is the Immigration and Naturalization Service.
At the end of the CRITIQUE, I compile a short list of "Findings and Recommendations".
The whole tone of Judge Wiseman's Report is set in the very first sentence: "Between July, 1942, and November, 1943, Nazi SS officers assisted by Ukrainian guards murdered between three quarters of a million and 900,000 Jewish men, women and children at a death camp near the village of Treblinka, Poland." His reference is a book by Yitzhak Arad, head of the Yad Vashem archives, published in 1987, i.e. after the relevant period from 1975 to Feb. 28, 1986 when John Demjanjuk was extradited to Israel. It is thus obvious that Judge Wiseman's intention is to promote the MESSAGE (as defined in the preface), which he does zealously for the rest of his Report.
The second sentence continues in the same vein: "Over 30 years later, in a courtroom in Cleveland, Ohio, five survivors and one German SS officer identified John Demjanjuk as a Ukrainian guard at Treblinka." There are three items at issue here.
[First of all, it is exactly these identifications obtained by inadmissible procedures which have been discredited by both Judge Wiseman himself and the Israeli Supreme Court on July 29, 1993 when it overturned the guilty verdict. Judge Wiseman should not present them as if they were valid.
Secondly, the term "Ukrainian guards" is inappropriate. It suggests that all guards alleged to have been at Treblinka were of Ukrainian origin. The only purpose in using the qualifying adjective is to promote hatred against Ukrainians. One would not expect hate mongering from a United States judge. Judge Wiseman owes an apology to the Ukrainian community.
Thirdly, Judge Wiseman inappropriately uses the term "survivors" to describe the five Jewish witnesses who testified against John Demjanjuk. If their confessions to having served in the machinery of the Treblinka camp are accepted as true, then the appropriate terminology should be "Nazi collaborators". To classify them with a positive term such as "survivors" is an insult to the memory of the thousands of fellow Jews whom they herded to their deaths or the millions who perished in the HOLOCAUST.]
In the next three short paragraphs, Judge Wiseman summarizes the proceedings against John Demjanjuk, the procrastination of the Supreme Court of Israel concerning the "new" Marchenko evidence and his own appointment by the Sixth Circuit Court of Appeals as Special Master to examine possible "prosecutorial misconduct" by the lawyers prosecuting Mr. Demjanjuk.
I.A. Proceedings before the Special Master (p3)
In footnote 7 (p5), he commends the OSI for their co- operation but admits "The handful of documents which they did not produce to Mr. Demjanjuk, they produced to me for in camera inspection".
[To my mind, it would have been helpful if the titles of the exhibits submitted by the Respondent and the Petitioner had been listed in an appendix at the end of his report.]
I.B. Witness Biographies (p6)
It is my understanding that these people were active in attempting to obtain evidence exonerating Mr. Demjanjuk.
The 14 people listed, (date deposed) - their years of
employment with the OSI are:
I.C.The Allegations (p16)
[On Nov. 14, 1979 Norman Moscowitz, Bernard Dougherty, George Garand and Gerard Charig(?) interviewed Otto Horn in Germany asking him to identify Mr. Demjanjuk. Both Garand and Dougherty wrote memoranda describing the interview and indicating that Horn had failed to properly identify Mr. Demjanjuk until after some "coaching". In the 1981 denaturalization trial the prosecution hid these memoranda and claimed that Mr. Horn had properly identified Mr. Demjanjuk. In 1986 both Garand and Dougherty wrote memoranda for the Israeli authorities significantly different from their original versions. The issue is not whether a certain photograph was or was not visible to Horn during the identification procedures as Judge Wiseman implies. The issue is that a subsequent videotaped interrogation and identification procedure which was presented at the denaturalization trial was a sham. The issue is that Norman Moscowitz deliberately suborned perjury from Otto Horn during this trial. The issue is that Garand and Dougherty wrote false memoranda knowing full well that these contradicted their original ones.]
[Another issue which Judge Wiseman does not make clear here is that when prosecutor Norman Moscowitz produced the Dorofeev (1980) Protocols to the defense after the Feb. 1981 denaturalization trial, he told Judge Battisti that this was all the material he had on the case, whereas he had in his possession the far more important Fedorenko and Danilchenko Protocols.]
II. HISTORY OF THE CASE (p18)
II.A. Aktion Reinhard (p18)
[One wonders why Judge Wiseman chose to read fiction rather than study and report on the more relevant material from the 1987-88 Jerusalem Trial, the Feb. 1981 denaturalization trial and the 1965 Dusseldorf trial.]
II.B. The Investigation in Israel (p22)
[It is criminally irresponsible of Judge Wiseman (as well as the OSI and Israeli prosecution) not to clearly state that the original allegations concerning Mr. Demjanjuk came from the KGB via Communist sympathizer Michael Hanusiak when he returned from a trip to the Soviet Union in the fall of 1975 (I believe).
Judge Wiseman does not mention that the World Jewish Congress had sent Mr. Demjanjuk's picture to the various Jewish communities around the world inviting them to identify him as a war criminal (nun 141 of the Jerusalem Trial). Neither does Wiseman mention that the Israeli authorities placed advertisements in the newspapers with his name (and picture?) inviting people to identify him. Thus, his name and picture were well advertised in advance. Nor does Wiseman refer to the book by Willem Wagenaar, "Identifying Ivan", which details the many illegitimacies of the identification procedures.]
Although Judge Wiseman describes the interviews that Israeli investigator, Miriam Radiwker, carried out with the Nazi collaborators who identified Mr. Demjanjuk, he fails to outline her historical background.
[Miriam Radiwker was born in 1906 in a Ukrainian village called Latske (near Ivano-Frankivsk, Ukraine). Her parents fled to Vienna during WWI to escape the Russians, but returned until 1923. She trained as a lawyer at the University of Krakow, graduating in 1930. From 1930 she served at the district court in Pinsk (Belarus). On Nov. 7, 1939, after the partition of Poland according to the Molotov-Ribbentrop pact, she crossed into the Russian-occupied zone and practised law in Tismanitsia (near Ivano-Frankivsk, Ukraine) until June 22, 1941 when Hitler invaded the Soviet Union. She fled with her first husband to near Stalingrad, where her husband was first conscripted and later deported to and perished in Novosibirsk for having been in the Austrian and Polish armies. She returned to Tismanitsia in 1945, remarried Yifsay Radiwker in 1946 and practised law until 1957, when she emigrated with her husband and daughter to Poland (T02677). In 1964 she emigrated to Israel.
There is a particularly puzzling piece of testimony regarding INS use of the German language: "When it came to America, they did not give us any negative response, on the contrary, they sent their instructions in German and in German as well as English." (T02778)]
Neither does Judge Wiseman refer to the large number of people who did not identify Mr. Demjanjuk during interviews by Ms. Radiwker and her successor Martin Kolar.
[Martin Kolar was born in 1920 in Czechoslovakia. He did not receive any legal training, but had some experience with investigating Nazi crimes in the years 1945-47. He came to Israel in 1965 and was hired by the Division for the Investigation of Nazi Crimes almost instantly. (Wagenaar, p129)
During WWII "All of my [Kolar's] relatives from the closest to the most distant were exterminated by the Nazis in the camps. I was in forced labor camps in Slovakia." (T03063) From 1945 to 1947 he worked in Division 7 of the Regional Ministry of the Interior of Slovakia, Bratislava in a special Department for the Investigation of War Crimes: "I would be sent as part of the Czechoslovakian military mission to the American-occupied zone of Germany in order to help in locating those war criminals..." (T03050). In 1947-48 he was editor of a monthly publication Hashomair Hazair (a socialist Zionist youth organization) concerning Israel and the state of affairs in Palestine. During the Slansky Trials of Nov. 1952, he worked in a coal mine. From 1954 to March 1965, he worked in the official government forestry services.
In referring to the language used in investigations, he states: "I took it in German as was our wont in this Department for the Investigation of Nazi Crimes" (T03017). His intimate relationship with the INS-OSI and, in particular, Norman Moscowitz is typified by the statement: "This is a letter of the unit after we reorganized the unit or rather the Justice Department of America, it's not the Immigration Office any more, but the Office of Special Investigations, which is directly addressed to me." (T03023)]
II.C. Founding of the Special Litigation Unit (SLU) (p26)
II.D. Allegations of Improper Political Influence (p27)
[Curiously, Wiseman does not even discuss the creation of the OSI as a result of the infamous Holtzman amendment which was sneaked through Congress and signalled the commencement of the corruption of the U.S. system of jurisprudence.]
The Turf Battle (p29)
George Parker's Memorandum (p34)
Although Parker spoke of "negative factors [which] are largely political and obviously considerable", Judge Wiseman attributes this to an unfortunate choice of language. We note that Wiseman ignores the "ethics" issue completely.
[Even more disconcerting is Wiseman's referral to the Walus case (footnote 66, p36) who was unjustly convicted of being the beast of Kielce as a result of the testimony of 11 Jewish "eyewitnesses". Wiseman's statement "After the Seventh Circuit remanded the case for a new trial, the OSI investigated and substantiated Mr. Walus's alibi, and dismissed the charges against him" is completely misleading. It was not the OSI but friends and acquaintances of Walus who eventually managed to gather irrefutable evidence of his innocence. He had an ironclad alibi which the OSI could not refute, something which John Demjanjuk has not been able to do. Wiseman's further comments on the Walus case (p 37, p203) are also misleading.]
OSI's Relations with Jewish Groups (p36)
[Since when has it become acceptable for an "independent American judiciary" to seek political and public support? This is public relations, not justice!]
Nevertheless, Judge Wiseman rules that this "is not prima facie evidence of improper influence on the part of Members of Congress or Jewish organizations" and that "political pressure played no role in the tactical decisions made about Mr. Demjanjuk's case".
[We must challenge Judge Wiseman's conclusion. I know of no other case this millennium which has as many political overtones as that of John Demjanjuk for the past 18 years. It was highly political from the very start to the present day, involving not only the judiciary but the State Departments and governments of the former Soviet Union, Israel and the United States. The rot has penetrated very deep, indeed, and has spread to Canada and other countries around the world. If someone had planned to compromise the judicial systems of the Western world, they could not have succeeded more brilliantly than the OSI.]
II.E. The Fedorenko (1978) Protocols (p38)
On August 7, 1978, the US Moscow Embassy cabled their Tel Aviv counterparts that the Soviet evidence was on the way. On August 12, the Secretary of State was also informed. The State Department provided the Fedorenko Protocols, along with translations [by whom?], to the SLU on Oct 13, 1978, where they were distributed to Martin Mendelsohn and Donald Couvillon.
Sometime after the denaturalization trial in the winter of 1981, the Fedorenko Protocols became missing from the Demjanjuk case files. They surfaced again in the spring and summer of 1991, when Representative James Traficant submitted a FOIA request for materials relating to Fedorenko.
The Fedorenko Protocols include a list of contents, 19 statements or transcripts of interrogations (from 11 individuals), and a German-language document concerning Trawniki. Curiously, they contain statements from only 3 of the 6 witnesses mentioned above and 5 statements (Dorofeev, Savenko, Malagon) generated in 1978 but prior to the June 5 request.
[The extreme significance of these Protocols is that in the Malagon and Leleko statements, Ivan Marchenko is clearly named as the operator of the diesel motor to the gas chambers.]
In their testimony before Judge Wiseman, only George Parker and Norman Moscowitz admit to having read the Fedorenko Protocols prior to Mr. Demjanjuk's denaturalization (and they claim to have attached no significance to them). The rest of the OSI personnel claim not to have read them until Judge Wiseman's inquiry, who appears to accept their testimony at face value.
[It is simply not believable that, after having gone to all the trouble of obtaining the documents and having them translated by the State Department, the OSI personnel would not have read and been fully aware of their significance!]
II.F. The Polish Main Commission Information (p49)
Once again, only George Parker and Norman Moscowitz admit to having read the list, but attached no importance to it. Mr. Moscowitz testified that he "did not provide the Commission list to Mr. Demjanjuk because he did not believe that it related to his case"!
II.G. German SS Officer and Nazi Collaborator Witnesses
On advice of Gitta Sereny, the OSI decided to interview 3 German officers in early Sept. 1979 (Suchomel, Franz) and Nov.14, 1979 (Horn).
[These interviews are a perfect example of the unprofessional conduct of the OSI.]
II.G.1. Franz Suchomel (p56)
[For public civil servants not to record such meetings in detail either on videotape, audiotape or stenographic recordings is the height of professional irresponsibility! That is their job. That is what they get paid for. If the Demjanjuk defense had not run across the names of Suchomel and Franz in the documents trashed by the OSI, they would never have known about these interviews, which is obviously what the OSI had intended.]
II.G.2. Kurt Franz (p59)
II.G.3. Nazi Collaborator Witnesses (p62)
During the next 6 months photospreads were shown to more witnesses of Treblinka, Sobibor and Flossenberg. [It is not clear whether these were true survivors or Nazi collaborators.] There were no identifications from Sobibor and Flossenberg, but several from Treblinka.
In footnote 176 (p64), Judge Wiseman lists the 18 positive identifiers: "In all, there were nine Israeli Nazi collaborators (Abraham Goldfarb, Eugene Turowski, Elijahu Rosenberg, Josef Czarny, Gustaw Boraks, Abraham Lindwasser, Sonia Lewkowicz, Pinhas Epstein, and Jacob Szmulowicz); one German Nazi collaborator (Georg Rajdgrodzki); six American Nazi collaborators (Mayer Zigelman, Edward Goldstein, Moses Rapaport, Henry Brenner, Abram Kolski, and Harry Feldgraber); one Nazi collaborator from Uruguay (Chil Rajchman); and one Swedish Nazi collaborator (Czeslaw Augustyniak)."
[We note that Judge Wiseman does not list the far greater number nor the names of people who did not identify Mr. Demjanjuk's photograph.]
II.G.4. Otto Horn (p64)
Once again, we would like to emphasize that these are the typical illegitimate identification procedures being practised by the OSI without the presence of defense counsel, which amount to "coaching" or "encouraging" the witness to give the "desired" testimony.]
On Nov. 14, 1979, Norman Moscowitz, Bernard Dougherty and George Garand interviewed Otto Horn in his Berlin apartment. After some initial questions and Mr. Horn's description of "Ivan" having black hair [Mr. Demjanjuk's hair was blond], the identification procedures commenced. Mr. Moscowitz testified before Judge Wiseman that he left the room during this procedure, although he did not state this at the Feb. 1981 denaturalization trial. On Nov. 15, 1979, Garand and Dougherty wrote reports of the interview and identification procedures where they explicitly stated that the 1941 Trawniki picture had been placed on top of the pile in full view, when Horn was looking through the second set which contained Mr. Demjanjuk's 1951 immigration visa photo. Only after he had been assured that they were the same man did he conclude that this was "Ivan". The Garand and Dougherty reports were presumably sent to Mr. Sinai who directed his secretary to make copies for Mr. Moscowitz, who testified that he never read them until after the denaturalization trial. All OSI personnel deny reading these reports. [Only years later, did the Demjanjuk defense team stumble across these reports in the garbage and learn the truth.]
Messrs. Moscowitz, Horrigan and Charig interviewed Mr. Horn again "a few days" before the formal deposition of Mr. Horn on Feb. 26, 1980 before Norman Moscowitz, Mr. Horrigan and defense lawyers John Martin and Spiros Gonakis, who had no idea that Mr. Horn had been "prepared" in advance. It was this videotape which was submitted to the court at the Feb. 1981 denaturalization trial.
Subsequently, in 1986 in preparation for the 1987-88 Jerusalem trial, George Garand provided another affidavit which differed substantially from his original. He testified before Wiseman that he was ordered by Neal Sher to go to the Israeli Embassy where "someone prepared an affidavit which he signed".
"Bernard Dougherty was called upon to provide three separate affidavits" in addition to his testimony before Judge Wiseman. The first two, he simply signed material prepared by the Israelis and the last one was written in 1988 after he had been confronted with his original report.
[It is highly significant that in the original report of the Nov. 14, 1979 meeting Mr. Horn had described "Ivan" as having dark hair and " .... never hurt anyone...". This did not come out in the 1981 denaturalization trial at all. Mr. Moscowitz, who was the prosecutor, must have been aware of this discrepancy. In their 1986 deposition, Horn is reported to have said that "Ivan killed, cut... etc. (see also section IV.C.1 below.)]
II.H. The Danilchenko (1979) Protocols (p83)
On August 2, 1979, Norman Moscowitz wrote a memorandum to the State Department asking them to obtain the Danilchenko testimony, other statements of guards referred to in the Fedorenko Protocols, and a certified copy of the Trawniki card. The State Department transmitted the request to Moscow on Aug. 7, 1979 and the US Moscow Embassy passed on the request on Aug. 14, 1979. On Dec. 4, 1979, Mr. Moscowitz wrote a follow-up request.
The Danilchenko Protocols arrived at the US Moscow Embassy on Dec. 28, 1979. "Apparently, because of a delay in translating the documents [by whom?], the State Department notified the OSI that it had received them sometime prior to January 24, 1980, and the translations arrived for the Office's use on February 15, 1980." Presumably, a certified copy of the Trawniki card arrived separately.
In October 1979, the Soviet KGB interviewed Mr. Malagon and showed him Mr. Demjanjuk's photograph. Mr. Malagon could not identify the photograph and also stated: "While at the Treblinka death camp, I met the guard Nikolai Marchenko, who drove a gas chamber van."
In November 1979, the Soviet KGB interviewed Ignat Danilchenko, who maintained that Mr. Demjanjuk was a guard at Sobibor, that he and Mr. Demjanjuk were later transferred to Flossenberg, Germany and thence to Regensberg. Judge Wiseman does not refer to any attempts at photographic identification.
Once again, only George Parker and Norman Moscowitz admit to having read the Danilchenko Protocols. "Although John Horrigan was aware that the OSI had received the Protocols, he neither received nor read them until after the denaturalization trial and the mistrial hearing were over in 1981." [Then why didn't he turn them over to the defense and the court?]
[Once again, we find the claims of ignorance by the OSI personnel unbelievable.]
II.I. Assessment of the Evidence (p89)
[Few people on this planet would be as charitable. Most would have concluded that the OSI knowingly, deliberately and maliciously withheld and attempted to destroy evidence which was exculpatory of Mr. Demjanjuk.]
II.I.1. The Marchenko Evidence (p90)
"Unlike Mr. Parker, Mr. Moscowitz knew of and evaluated the Marchenko evidence." In his testimony to Judge Wiseman, Mr. Moscowitz discusses an "alias theory" he developed as a result of "Martschenko" appearing [erroneously] as Mr. Demjanjuk's mother's maiden name on the 1951 visa application. Footnote 97 (p95) outlines four options that Mr. Moscowitz allegedly considered involving the words Nikolai, Ivan, Marchenko and Demjanjuk. He allegedly eventually concluded that Marchenko's first name was Nikolai and that Demjanjuk was Ivan the Terrible.
[I must respectfully submit that if Mr. Moscowitz had developed these theories at the time, then he should have submitted them to the Court and the defense at the February 1981 denaturalization trial. The duty of the prosecution is to present all facts and evidence to the court and, perhaps, present a possible interpretation of them. It is the duty of the court to interpret and evaluate this evidence in the interests of truth and justice. Mr. Moscowitz had no right to act as investigator, prosecutor, judge and jury. If that does not constitute "prosecutorial misconduct" or "fraud on the court", then I don't know what does!]
"On the eve of Allan Ryan's [and Walter Rockler's] trip to the Soviet Union in January 1980, Mr. Moscowitz wrote a supplemental request to be given to the Soviet officials", where he specifically asks "for the name of Ivan Marchenko or the Ivan who worked at the gas chambers". Mr. Ryan claims that he never received this request. On page 97, Judge Wiseman writes: "On the day after he drafted the memorandum to Mr. Ryan, the OSI received the translated versions of the Danilchenko Protocols", which is impossible since these presumably arrived Feb. 15, 1980 (p88).
II.I.2. The Sobibor Evidence (p99)
II.I.2.A. George Parker's "Ethics Memorandum"
The memorandum's authenticity: Judge Wiseman is convinced it is authentic. Arthur Sinai recalls reading a document discussing discrepancies in the evidence and "office talk" on the subject. Kathleen Coleman recalls discussing "evidentiary issues" in the Demjanjuk case. Norman Moscowitz recalls Mr. Parker's concerns at approximately that time.
The memorandum's distribution: Although the memorandum was addressed to Walter Rockler and Allan Ryan, "Mr. Rockler did not recall receiving the memorandum", "Mr. Moscowitz testified that he did not receive it", and "Mr. Ryan reasoned that he could not have received it".
The meeting: Mr. Parker testified that he, Mr. Rockler, Mr. Ryan and Mr. Moscowitz met in early March 1980 for between ten and twenty-five minutes. "Mr. Rockler recalls that the meeting lasted an hour and a half, and does not remember discussing Mr. Parker's ethical concerns." Mr. Moscowitz does not recall discussing ethical concerns at the meeting, while Mr. Ryan does not recall a meeting at all.
The memorandum's content: To conclude: "We have little admissible evidence that defendant was at Sobibor yet serious doubts as to whether he was at Treblinka. Even if we may be comforted that we may have the right man for the wrong act, the ethical cannons [sic] probably require us to alter our present position."
Judge Wiseman notes that the memorandum does not refer to the Marchenko evidence.
II.I.2.B. Norman Moscowitz and the Transfer Theory
[So why didn't Mr. Moscowitz release the Danilchenko testimony to the court and defense? Once again, Mr. Moscowitz is acting as investigator, prosecutor, judge and jury!]
II.J. The Dorofeev (1980) Protocols (p118)
Norman Moscowitz testified that he received the Dorofeev Protocols in Jan. 1981, but that he filed them away until after the denaturalization trial. In a letter dated March 27, 1981, he revealed their existence to Mr. Demjanjuk's defense counsel, John Martin, who filed for a mistrial, which was denied by Judge Battisti.
[However, Mr. Moscowitz did not admit that at the time he assured Judge Battisti that he had turned over all documents relevant to the case to Mr. Martin, he allegedly had in his briefcase the far more important Fedorenko and Danilchenko Protocols.]
The interviews conducted in Sept. 1980 (Dorofeev, Orlovsky, Kharkovsky, Kolgushkin, Savenko) were of little relevance to either the prosecution or the defense, although Dorofeev recalled the name Demjanjuk and made partial photographic identifications.
II.K. Amending the Complaint
Surprisingly, Judge Wiseman disagrees with the present contention of Mr. Demjanjuk's defense counsel that the OSI amendment was a "ruse" offered in bad faith, even though he is perfectly aware that the OSI withheld the Fedorenko and Danilchenko Protocols from the original defense counsel.
[How could Mr. Demjanjuk possibly defend himself, if he is not even allowed to examine all the evidence which exculpates him?]
II.L. The Trial
In response, Mr. Demjanjuk offered: three witnesses [Dr. Michael Pap, Jerome Brentar, and Edward O'Connor] who testified about the forced repatriation of displaced persons to the Soviet Union following World War II; five character witnesses (and stipulations regarding thirty-seven others); and his own testimony, which placed him in POW camps throughout the period of Treblinka's operation."
[We respectfully suggest that Judge Wiseman had a duty to dissect the testimony and conduct of the prosecution during this trial (particularly since Norman Moscowitz was the prosecutor) and compare it to the statements of the OSI personnel who had testified before him. Their words simply don't correspond to their actions.]
II.M. The Mistrial Motion (p125)
["In reviewing my files this week, I came across the protocols." We wonder how Mr. Moscowitz managed to avoid coming across the far more important Fedorenko and Danilchenko Protocols?]
Mr. Martin also received an affidavit from Chaim Sztajer, who not only failed to identify Mr. Demjanjuk's photograph but also claimed that Liudas Kairys (whose photograph had been published in the 22 August, 1980 of the Jewish News, Melbourne, Australia) was the real "Ivan" of Treblinka. The OSI had failed to disclose this affidavit or Mr. Sztajer's name to Mr. Martin.
John Martin filed a motion for a mistrial on this and other grounds. He made impassioned pleas for Judge Battisti to reject the OSI stand that they had disclosed all information properly. In the final analysis, Judge Battisti, ordered the OSI to produce the Dorofeev statements, but did not "ascribe any sinister motivation to Government Counsels' conduct" and rejected the mistrial motion.
II.N. The Judgement (p132)
The Sixth Circuit Court of Appeals affirmed the denaturalization decision, and the Supreme Court denied certiorari."
II.O. The 1982 Polish Main Commission Dispute (p133)
On October 26, 1982, John Martin wrote a second letter to
Mr. Ryan acknowledging receipt of the documents and requesting
that the OSI produce additional documents:
In their testimony before Judge Wiseman, all the OSI personnel (Neal Sher, Allan Ryan, Judge Einhorn, John Horrigan, Norman Moscowitz) appear to have developed amnesia about this letter. Although Mr. Ryan claims to have no recollection of the letter, he wrote "What is this all about?" at the top of the letter and delegated Judge Einhorn to investigate the matter and prepare a response. (Presumably, by this time Norman Moscowitz had either already left the OSI, been relieved of his duties, or was taking a course in trial techniques...[They couldn't find out?].) Judge Einhorn drafted two responses, the first one dated Nov. 4, 1982, and upon a demand for revisions by Mr. Ryan, a second one dated Nov. 11, 1982. Judge Wiseman concludes that only the Nov. 4 draft was mailed to Mr. Martin and Judge Battisti.
This letter claims all relevant documents had already been provided and that therefore the OSI would not make a search of their files.
[We would dearly love to hear the "un-amnesia-ed" version of events surrounding this letter.]
II.P. Post-Judgement Motions (p138)
In 1984, Mr. Demjanjuk filed a second motion to vacate, alleging improprieties in the original trial and the discovery of new evidence. The District Court again denied the motion, stating that it "raise[d] nothing new pertaining to Demjanjuk's denaturalization proceedings." The Sixth Circuit affirmed the denial of Mr. Demjanjuk's motions to vacate the denaturalization judgement, and the Supreme Court denied certiorari."
II.Q. The Deportation Proceedings (p139)
II.R. The Extradition Proceedings (p141)
The OSI personnel testified before Judge Wiseman that they did not consider extradition of John Demjanjuk as a realistic possibility, which "stands in stark contrast to the substantial documentary and testimonial evidence that establishes that other attorneys within the OSI were, as early as 1980, seriously considering the possibilities, and problems, of seeking extradition requests for OSI suspects."
This includes a memo dated Aug. 11, 1980, from Allan Ryan to Michael Abell; a memo dated Sept. 5, 1980, from Neal Sher to staff attorneys; a meeting in Israel in June 1981 between Allan Ryan and Marvin Hankin and other Israeli officials (see memos dated June 25, 1981 from Allan Ryan to Neal Sher and Jan. 24, 1982 from Eli Rosenbaum to Allan Ryan); a memo dated July 10, 1981 from Judge Einhorn to Neal Sher; a late January 1983 memo from Eli Rosenbaum to Neal Sher, Judge Einhorn and Robert Brill.
In January 1982, Neal Sher, Eli Rosenbaum and another unnamed OSI attorney met in Jerusalem with Israeli officials (Mr. Goldman, Colonel Russek, others) to develop a "collaborative, working relationship, with the OSI preparing the ground, legally and politically, for extradition requests from Israel". Presumably, it was Col. Russek who suggested that Mr. Demjanjuk be the first victim of this alliance.
[Since he did not testify at the Jerusalem 1987-88 Trial, we have no biographical information on Col. Russek.]
By November 1983, George Parker, John Horrigan, Norman Moscowitz and Allan Ryan had all ceased working for the OSI. Israeli requests to Neal Sher for information were filled by Judge Einhorn and paralegal, Nancy Kramp. (Memo dated Dec. 23, 1985 from Judge Einhorn to Nancy Kramp; transmittal slip dated Jan. 6, 1986 from "Nita to Madeline"; transmittal slip dated Jan. 16, 1986 to "Neal"; memo dated Feb. 13, 1986 from Nancy Kramp to Judge Einhorn.)
In a memo dated Feb. 19, 1986 to Neal Sher outlining his
draft responses, Judge Einhorn described the Fedorenko protocols
[This statement suggests that Judge Einhorn was aware of the Fedorenko (1979) Protocols and the exculpatory nature of the Leleko and Malagon statements therein.]
Judge Wiseman concludes that the personnel turnover problems at OSI depleted both quantitatively and qualitatively the evidence available to the Israeli prosecution.
[You may rest assured that the Israeli Mossad, government and prosecution were even better informed than the Americans with every nuance of the Demjanjuk case. It was no accident that Judges Levine, Dorner and Tal firmly steered all questioning away from "extraneous" Soviet evidence.]
II.S. The FOIA Litigation (p153)
III. THE DISCOVERY REQUESTS (p155)
III.A. The Request for Production of Documents (p155)
We shall summarize the data as briefly as possible:
We will terminate this convoluted section with two quotes of
Judge Wiseman's report:
III.B. The Interrogatories
III.B.1. The First Set of Interrogatories (Nov. 18, 1977) (p168)
III.B.2. The Second Set of Interrogatories (May 8, 1978) (p170)
III.B.3. The Fourth Set of Interrogatories (Apr. 14, 1980) (p171)
"Moscowitz and Horrigan wanted to provide the defense with as little information and evidence as possible. In other words, the government was playing hardball." "Although the government is certainly permitted to enjoy the benefits of the Federal Rules, the hardball approach contravened the spirit, if not the letter, of the promise of cooperation they had given to the defense before Magistrate Streepy on June 4, 1979-- a promise which Mr. Horrigan knew resulted from their own work product objections." The course the OSI took "almost certainly misled Messrs. Martin and Gonakis and endangered Mr. Demjanjuk's ability to mount a defense".
"Although it appears in retrospect that Messrs. Martin and Gonakis would have uncovered evidence now at issue had they made additional requests, it is uncharitable and more than a little ironic that government attorneys now argue that they deserve to be judged without hindsight while denying the same consideration to the former defense attorneys."
IV. LEGAL STANDARDS (p178)
[For the next 23 pages, Judge Wiseman discusses legal matters which are of relevance to the legal profession, but are unfamiliar to the normal person in our society, who uses common sense and moral values to guide his or her actions. Nevertheless, I will attempt to briefly summarize this section.]
IV.A. Discovery (p178)
IV.A.1. Civil Rules
IV.A.2. Brady (p179)
Judge Wiseman rules that Allan Ryan lied "that the OSI had a policy and practice of turning over exculpatory evidence", "because such a finding contradicts every other OSI attorney's testimony, which was to the effect that there was no such policy in place".
Judge Wiseman concurs that Brady should apply to extradition proceedings. However, it cannot be applied retroactively to this case to prove fraud on the court.
IV.B. Fraud on the Court (p182)
"Because preserving the finality of judgements ... is an important legal and social interest", fraud on the court is restricted to "only the most egregious misconduct" and must involve "corruption of the judicial process". Fraud on the court encompasses only "fraud which is directed to the judicial machinery itself". It is limited to "very unusual cases involving 'far more than an injury to a single litigant'".
[In our opinion, the key questions in the Sixth Circuit Court's terms of reference were whether the OSI had engaged in "prosecutorial misconduct" and "obstruction of justice" to obtain the denaturalization, extradition and subsequent conviction of an innocent man, Mr. Demjanjuk. These are far more quantifiable and understandable terms than the more esoteric "fraud on the court". Normally, "prosecutorial misconduct" and "obstruction of justice" would be interpreted as "fraud on the court".
Nevertheless, I respectfully suggest that in handling the Demjanjuk case the OSI is guilty of prosecutorial misconduct and obstruction of justice (and thus fraud) on each of the counts outlined by Judge Wiseman. Rather than concentrating on its sacred duty to uphold truth and justice, the OSI has conspired to withhold truth and pervert justice. In addition, the OSI has occupied itself with such esoteric pursuits as public relations, currying favor with politicians, conspiring with the KGB, attempting to teach history, acting as investigator, prosecutor, judge and jury, etc. etc. By their actions, the OSI has brought the whole system of American jurisprudence into disrepute.]
IV.B.1. Intent Element (p184)
IV.B.3. Standard of Proof (p189)
[It is abhorrent of Judge Wiseman to suggest that it is in the "interest of society" to preserve the finality of a false judgement. To do so is only in the interests of corrupt lawyers and judicial officials who hide their evil deeds within the protected confines of the legal profession.
Secondly, it is ironic that Allan Ryan and the OSI kept referring to the "clear, unequivocal, and convincing evidence" of Mr. Demjanjuk's guilt, which is exactly the terminology used by Justice Jules Deschenes in his report on war crimes issues in Canada in 1985-87. I would suggest that the guilt of the OSI is hundreds of times more "clear, unequivocal, and convincing" than that against Mr. Demjanjuk!]
IV.B.4. Elements (p190)
[In my opinion, Judge Wiseman's terms of reference are far too stringent. Point 1 should be sufficiently broad to include any member of the prosecution, defense or judicial personnel, as well as any or all witnesses appearing for the prosecution or defense. Points 2 and/or 5 should include "that brings the American system of jurisprudence into disrepute". Point 3 should also include "that is intentionally misleading".
We reiterate once again that the key phrases should be prosecutorial misconduct and obstruction of justice.]
IV.C. The Allegations Revisited (p190)
We shall follow Judge Wiseman's argumentation in each of the seven allegations and attempt to counter it.
IV.C.1. "Introduction of evidence known to be false"
Judge Wiseman finds "that Norman Moscowitz in fact did not know that Otto Horn's identification of Mr. Demjanjuk's photographs proceeded in the manner described in the Garand and Dougherty reports".
[Judge Wiseman presumably believes Norman Moscowitz's story about slipping into another room while the photo identifications were being made, not discussing the issue with his colleagues thereafter, and not receiving and/or reading the reports which were addressed to him. To my knowledge, Mr. Moscowitz's testimony was not supported by that of Messrs. Garand and Dougherty. Neither did Mr. Moscowitz explain his actions at the Feb.- Mar., 1981 denaturalization trial. That in itself is prosecutorial misconduct and, thus, fraud on the court.
Secondly, Judge Wiseman studiously ignores an even more important aspect of the issue. Messrs. Garand and Dougherty both wrote affidavits in 1986 which differ strikingly from their 1979 reports. Horn's physical description of "Ivan", given prior to having been shown photographs in 1979, was omitted from the affidavits. The description did not match Demjanjuk. The fact Horn selected at least two other people (not Demjanjuk) is also missing from the later reports. Horn's statement that he had never seen "Ivan beating, shooting, or otherwise abusing any Treblinka prisoner" was changed, in 1986, to read "Ivan had a reputation for viciousness...using a knife to cut the ears off of victims." Neither Dougherty nor Garand recorded Exhibit numbers of photographs selected by Horn in the 1979 reports. Significantly, the 1986 affidavits have Dougherty listing photographs 2-C and 3-E, while Garand wrote 2-F and 3-E.
Since Norman Moscowitz specifically testified that he was present at the Nov. 14, 1979 interrogation of Otto Horn (before and after he claims to have slipped out of the room during the identification procedures), he must have been aware of Mr. Horn's testimony concerning the physical description of "Ivan" and his statement that he had never seen "Ivan beating, shooting, or otherwise abusing any Treblinka prisoner". By not revealing this testimony at the Feb.- Mar., 1981, denaturalization trial, Mr. Moscowitz once again engaged in prosecutorial misconduct and, thus, perpetrated fraud on the court.
The whole Otto Horn incident from start to finish constitutes a perversion of justice. I would suggest that no jury in the world would exhibit the benevolence toward Mr. Moscowitz that Judge Wiseman does.]
IV.C.2. "Introduction of evidence" and making arguments to the court known to be subject to substantial question through cross examination or contradictory evidence the existence and nature of which is withheld from the adversary" (referring to the Otto Horn affair, the Fedorenko, Danilchenko and Dorofeev Protocols, the Polish list, Leleko and Malagon statements, Suchomel testimony).
After noting that there are 5 separate allegations here, Judge Wiseman summarily dismisses them with such words as "good faith", "did not perceive themselves to be obligated", "excusable", etc.
[The lack of understanding of the very tenets of justice exhibited by Judge Wiseman is appalling! No democratic society can survive a corrupted judicial system in which the prosecution "filters" information to the courts and the defence according to its own whims. In the Demjanjuk case, there should have been absolutely no question that the OSI was obligated (and should have felt itself to be obligated) to present absolutely all information in its possession (or of which it had knowledge) concerning Treblinka, or Mr. Demjanjuk, to the courts and the defense. There can be no question that the destruction of evidence by the prosecution or withholding such evidence from the courts is a criminal offense of the highest degree. There can be no question that OSI personnel, as government employees responsible to the American people, must be required to keep and preserve meticulous records of all interviews, meetings, correspondence, telephone conversations, etc.
The failure of the OSI in all these areas indicates the high degree of corruption that has permeated the American system of jurisprudence. For Judge Wiseman to condone and excuse such corruption is a disservice to the American people.]
IV.C.3. "Making promises of compromise over discovery procedures -- promises which are not kept" (referring to OSI promise to help the defense obtain information from foreign governments and Allan Ryan's policy "to turn over all exculpatory information")
Judge Wiseman dismisses this allegation in two sentences comprising 27 words.
IV.C.4. "False representations of the court concerning the evidence in its possession, evidence turned over to the adversary, or the reliability of evidence presented" (referring to turning over the innocuous Dorofeev Protocols but withholding other more important documents).
Once again dismissed.
IV.C.5. "Possession of exculpatory evidence while arguments were made as to admissibility of directly related evidence, and failing to turn over the exculpatory evidence possessed" (referring to Malagon, Leleko and Danilchenko statements).
Once again dismissed.
IV.C.6. "Failing to continue to scrutinize the flaws in the case while it progressed through the appellate courts to the Supreme Court of the United States" (referring to the OSI not confessing error when it became obvious relevant material had not been turned over).
Judge Wiseman makes the astounding ruling that "government attorneys did not, in fact possess 'knowledge that the record was incomplete'".
[Only an idiot wishing to be deceived could come to such a conclusion honestly. One could perhaps attribute a "reasonable doubt" of, say, 10% that a specific OSI employee was unaware of the existence of the material and/or its exculpatory nature. However, even if the relatively small number of 14 OSI employees who testified before Judge Wiseman were attributed this reasonable doubt of 10%, the mathematical probability that none of these employees was aware falls to the vanishingly small value of 0.000000000001%.
Furthermore, if one of the employees becomes aware of the issue, then the natural human tendency is to discuss the issue with other employees such that very soon all the OSI employees would be informed. Only if there were a policy implemented by OSI top management directing its employees not to reveal and discuss such material with their colleagues, would it be possible to restrict the dissemination of the knowledge amongst all OSI employees.
We must therefore concluded that either all the OSI employees who testified before Judge Wiseman perjured themselves or, if a policy of restricting information to key personnel on a "need to know" basis had been instituted, then only several of the employees gave perjured testimony.
We must also keep in mind that people in the State Department, the Attorney General's Office, the Moscow and Israeli Embassies were privy to the knowledge. And certainly the KGB officials who supplied the material were aware of its significance.
We simply cannot accept Judge Wiseman's ruling on this issue!]
IV.C.7. "Adding inconsistent charges to the complaint with knowledge that they were inconsistent and proceeding with the litigation as if they were consistent" (referring to the OSI adding the Sobibor charge even after George Parker's "ruse" comment).
Judge Wiseman dismisses this charge with one sentence comprising of 14 words.
V. CONCLUSION (p201)
In the final ten pages of his Report, Judge Wiseman reverts to promoting the MESSAGE; apologizing for the poor well- intentioned OSI personnel, who made so many errors under such difficult circumstances; and concludes by hate mongering against Mr. Demjanjuk himself.
As an apologist for the OSI, these are some of Judge
Wiseman's unbelievable statements:
Perhaps the quotations above were written tongue in cheek,
but Judge Wiseman's comments about Mr. Demjanjuk are inexcusable:
[It is uncharitable of Judge Wiseman to accuse John Martin of incompetence in trying to penetrate the smoke screens and roadblocks that the OSI deliberately placed in his path. After all, he had to work for a living to survive (Mr. Demjanjuk and his family were virtually destitute); whereas his adversaries enjoyed unlimited taxpayers funds to support their little games. Perhaps, if the OSI personnel had refrained from referring to John Martin as that "dumb nigger defending a Nazi" (as rumor has it), they would have treated his requests for information with less contempt.]
Footnote 598, p204: "One participant who must not remain blameless is Mr. Demjanjuk himself. Mr. Demjanjuk's alibi was so incredible as to legitimately raise the suspicions of his prosecutors that he lied about everything-- including his denial that he was Ivan the Terrible. The principle effect of this lie-"
[This is pure hate mongering by Judge Wiseman!
First of all, he does not even state what Mr. Demjanjuk's alibi was, nor does he discuss it anywhere in his Report, nor does he state what is so incredible about it. Mr. Demjanjuk has consistently stated that on his 1951 immigration papers he gave his place of birth as Poland to avoid forcible repatriation to the Soviet Union where he faced certain incarceration or death. He has consistently stated that after his capture by the Germans in Crimea in about May 1942, he first worked fixing railroads in the region, was later sent to the POW camp in Rovno, Ukraine, subsequently transferred to the POW camp in Chelm, Poland, where he remained until the advent of the Red Army, at which time he was transferred to Germany.
Nikolai Tolstoy testified on behalf of Mr. Demjanjuk at the 1987-88 Jerusalem trial that Mr. Demjanjuk's alibi was reasonable in light of the conditions during World War II and his testimony was not refuted by the prosecution.
Secondly, as a jurist himself, Judge Wiseman must be aware that, in a judicial system based on the presumption of innocence, the existence, or lack, of an alibi should be completely irrelevant in legal terms. (Otherwise, all innocent people without an ironclad alibi would be convicted.) In the Demjanjuk case, the OSI operated from a presumption of guilt as so well documented by Judge Wiseman himself in this Report. This in itself constitutes "corruption of the judicial system", "fraud on the court", "prosecutorial misconduct", "obstruction of justice", or whatever other negative term a person can conjure.
This point is reinforced by Judge Wiseman's inappropriate comments on the Walus case (footnotes 595, 596, p203): "And because Mr. Walus's alibi was truthful". The implication is that if Mr. Walus had not gone to tremendous expense and trouble to substantiate his alibi (and this was certainly not done by the OSI as Judge Wiseman falsely claims), then presumably he would have been executed.]
Towards the end of this section Judge Wiseman concedes that
there is overwhelming evidence that Mr. Demjanjuk was never at
Treblinka. However, in the last paragraph he, in effect,
concludes 'If he isn't Ivan the Terrible of Treblinka, then he
must be Ivan the Less Terrible of somewhere else':
[The blatant hypocrisy in this paragraph is astounding!
Throughout this Report, Judge Wiseman has studiously avoided examining the improprieties associated with the Feb.- Mar. 1981 denaturalization trial presided over by Judge Battisti. Then in the final paragraph he attributes it credibility.
Secondly, he implies that anyone commandeered to the Trawniki training camp must be a criminal. Or that anyone that served in the German SS is a criminal.
Thirdly, he implies that it is up to Mr. Demjanjuk and his supporters to prove, not only that it is a forgery, but that it is a KGB forgery with the further implication that it is up to them to discover the names, dates and methods of the perpetrators. (Why hasn't the OSI attempted to do this all these years? Once again, the presumption of guilt unless one can prove oneself innocent.)
And finally I would suggest to Judge Wiseman that there is, indeed, an incredible amount of evidence that the Trawniki card is a fake:
(1) The Soviet KGB originally released photographs of the card with the handwriting whited-out. (Presumably, first to Communist- sympathizer Hanusiak, then to the INS and Jewish organizations, then to the September 1977 issue of News from Ukraine). The OSI obtained a certified copy of the photograph in Jan. - Feb., 1980. The original card was presumably sent to and kept at the Soviet Embassy in Washington in Dec. 1980 or early 1981.
The original card was delivered by an embassy official to Judge Battisti at the February - March, 1981 Denaturalization trial in Cleveland for one morning session and was removed at noon. The defense complained that they only had a half hour to examine it. Mr. Gideon Epstein of the INS testified for the prosecution that he had examined the card and found it authentic.
(2) Dr. F. Winterberg, Professor of Physics at the University of Nevada in an article dated May 8, 1985 stated: "Mr. Ryan [Director of the OSI] claims that Epstein did an analysis regarding the authenticity of the ID card inside the compounds of the Soviet Embassy in Washington D.C., using the latest technology. We consider this statement incredible, because the application of the latest technology implies the use of a large laboratory."
Dr. Winterberg examined photostatic copies of the card and listed 6 points indicating that the card was a fake. He specifically concentrated on improper grammatical usage of the German language.
(3) In 1986, Israel obtained the ID card from the Soviet Union via the efforts of Armand Hammer and asked German forensic experts to examine it. However, when their preliminary report indicated that the card was an obvious fake, the Israelis lost interest and transferred the card to Israel.
(4) During the Jerusalem 1987-88 Trial, Dr. Julius Grant, deemed to be the "father of forensic" science, testified for the defense that the card was a forgery. Although he could not disprove the authenticity of the signatures of Teufel and Streibel, he categorically stated that the Demjanjuk signature had been forged. There was a great deal of controversy between him and the prosecution about the significance of rust stains from a paper clip and the existence of two staple holes which penetrated the photograph but not the paper of the card. In doing forensic testing (under constant Israeli supervision) he wanted to remove the photograph to check the glue to see if it had been previously attached to a different surface but was forbidden from doing so. Dr. Grant had done some tests, which he claimed were crucial, but was not allowed to testify on the results, because these had been performed after a time deadline imposed by the judges.
The merciless attacks on Mr. Grant's credibility by the prosecution, as recorded on pages T09449 - T09823 of the English-version Transcripts, attest to the extreme importance that the Israelis attached to his testimony. Yet, in the Verdict written by judges Levine, Dorner and Tal his testimony is either ignored, or twisted and discarded.
(5) In order to confirm that the Trawniki card was not "one of a kind", the Soviet KGB sent three extra cards to Israel. However, the judges allowed only photostatic copies and would not allow forensic testing and testimony at the trial.
Independent experts have had a field day pointing out the inconsistencies in dates, ranks, reversed negatives, etc.
(6) The SEMITIMES from Germany devoted a whole issue to proving the card is a fake.
(7) During the summer of 1993, the German magazine Der Spiegel stated flatly that the card is a fake.
(8) I have photostatic copies of both sides of these cards and have personally verified over 20 of these "irregularities".
As one German-speaking individual commented: "It may be good Yiddish, but it's terrible German. Anyone carrying such a card would have been shot."
In conclusion, I would suggest that there is overwhelming consensus that the Trawniki ID card is a fake. Only the Israeli courts, the OSI, and Judge Wiseman still maintain that the card is valid.]
"For the reasons discussed in this Report, my recommendation to the Court is that the case of Demjanjuk v. Petrovsky, et al. be closed, and that no action be taken against any of the government attorneys who prosecuted Mr. Demjanjuk."
Thomas A. Wiseman, Jr.
VII. FINDINGS AND RECOMMENDATIONS OF WILL ZUZAK
1. Throughout his Report, Judge Wiseman spends an inordinate amount of time promoting the MESSAGE that 850,000 Jews died in Treblinka and that Ukrainians were mostly responsible for this.
2. Judge Wiseman owes three sets of apologies:
3. With respect to the Feb.- Mar., 1981 Cleveland denaturalization trial presided over by Judge Battisti, Judge Wiseman was remiss in not comparing the testimony of the OSI personnel that appeared before him with their statements and actions at this trial. Furthermore, he accepts Judge Battisti's judgements at face value, rather than examining the original documentation and testimony.
4. Judge Wiseman misleads the Sixth Circuit Court by erroneously claiming that it was the OSI that was responsible for uncovering the irrefutable exculpatory evidence contradicting the eyewitness testimony of 11 eyewitnesses in the Walus case.
5. Judge Wiseman errs in concluding that political pressure played no role in the decisions associated with the Demjanjuk case. Indeed, his whole Report clearly demonstrates the incredible politicization of the judicial process. No other case in this millenium has had as many political overtones as that of John Demjanjuk for the past 18 years.
6. Judge Wiseman errs in not attributing prosecutorial misconduct to the OSI personnel (and especially Norman Moscowitz) for their conduct of the various Otto Horn interviews starting Nov. 14, 1979. Furthermore, he misleads the Sixth Circuit Court by failing to point out that Otto Horn's original physical description and conduct of Ivan of Treblinka differed markedly from his descriptions at the Feb.- Mar., 1981 denaturalization trial or in the 1986 Garand and Dougherty depositions. Neither does he point out that Norman Moscowitz, who was the prosecutor at the denaturalization trial, must have been aware of this discrepancy.
7. Judge Wiseman brings American jurisprudence into disrepute by suggesting that it is in the "interests of society" to preserve the finality of a false judgement.
8. Judge Wiseman seriously errs in making the ruling that "government attorneys did not, in fact possess 'knowledge that the record was incomplete'". It has been shown that the mathematical probability of this being true is vanishingly small.
9. Judge Wiseman misleads the Sixth Circuit Court by claiming "There is simply no new evidence to refute the authenticity of the Trawniki documents", when, in fact, there is overwhelming consensus across the world that the Trawniki ID card is, indeed, a fake.
10. We recommend that the Sixth Circuit Court: