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Edward Nishnic   Ukrainian Weekly   17-Mar-1991   Address to The City Club of Cleveland, II


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The strange case of John Demjanjuk

Presumed guilty: this century's most controversial capital case

Following is the full text of an address about the John Demjanjuk case delivered at The City Club of Cleveland on February 19.  The City Club, which is considered "a citadel of free speech," has had a national reputation since 1912 as each week it presents national and local speakers on a variety of current issues.

Edward Nishnic is president of the John Demjanjuk Defense Fund and a son-in-law of Mr. Demjanjuk.  We publish his speech here, in two parts, with his permission.

by Edward Nishnic

CONCLUSION

Ladies and gentlemen, let me pause this moment and ask the question which perhaps you are asking.  How could a mistake of identity of this magnitude happen?  How could three governments and scores of university-trained lawyers, employing the most advanced techniques, with unlimited resources, have prosecuted the wrong individual for over 14 years, in the course of which they expended scores of millions in taxpayers' dollars?  Let me suggest a series of tragic, but perhaps in the final analysis understandable, errors as the cause of what is certainly one of the greatest legal mistakes of the century.

As I noted before, both the Soviets and the Americans had known of the existence of Ivan the Terrible since 1945.  In 1979, the Office of Special Investigations received a document from the Polish War Crimes Commission stating that the commission had no information whatsoever on defendant John Demjanjuk, who by then had already been accused of being Ivan the Terrible and was already fighting for his life.  The list of Treblinka guards attached to that letter contained the names of three individuals with the first name Ivan, one of which was Ivan Marczenko.

It would have been prudent for the Justice Department to have investigated the three individuals, rather than simply suppressing the Polish document as they did.  Had the name Marczenko been investigated, the investigative trail might have led to the 1949 and 1951 Soviet transcripts, which clearly identified Ivan the Terrible as Marczenko.  Even if the prosecution had performed no investigation, the Polish document should have been released to the Demjanjuk defense.  The release of such exculpatory evidence to the defendant would have been required as the defendant's constitutional right under U.S. criminal law.

But remember, the U.S. has no criminal law for alleged Nazi war crimes.  The system is civil and that's a real problem.  So the exculpatory Polish document was not released to the defense until 1986, and then, incredibly, U.S. authorities blanked out the paragraph stating that there was no information on John Demjanjuk.  The suppression of that document, and the tragic failure to follow the leads that it contained, is a prime example of the kind of mistake which can lead to the execution of an innocent defendant, an error which, I submit, is the ultimate nightmare of a civilized legal system.

Probably more than any other single action by the prosecution, the destruction, or the attempted destruction, of exculpatory evidence found in the Justice Department's trash typifies the conduct of the U.S. government in this case.  Most of you are aware of the shocking revelation in August of 1989 that a vast amount of exculpatory evidence in the Demjanjuk case was discarded by the Justice Department in trash dumpsters outside the Washington, D.C., office of the Justice Department, where officials obviously never expected it to be found.

How the Demjanjuk defense received these exculpatory documents from that trash is a matter which is now at issue in litigation in Washington, where the prosecution's conduct is being investigated by the Justice Department's Office of Professional Responsibility for possible prosecutorial misconduct.

We do know, however, that materials found in the Justice Department's garbage are sufficient in and of themselves to force reversal of any death sentence under U.S. law.  Alan Dershowitz has stated that, in the Jeffrey McDonald case, the suppression of exculpatory evidence by the U.S. government alone justified reversal.  Why is a separate standard, an arbitrary standard if you will, being applied to the Demjanjuk case, which may be the most shocking example of suppression of exculpatory evidence in the history of American jurisprudence?

Why has Prof. Dershowitz not spoken out against the government's misconduct in the Demjanjuk case?  Are we to believe that after a long and illustrious career as a Harvard law professor and advocate of civil liberties, Mr. Dershowitz's legal judgement is being clouded by the political ramifications in this case?  Can it be true that the nation's leading civil libertarian and celebrity lawyer would just as soon see an innocent defendant convicted and executed in this case?

Not all the errors in this case were made by the U.S. authorities.  Just two months ago, in December 1990, the Israeli prosecutor Michael Shaked avowed to the Supreme Court in Israel that he was going on military service and therefore could not attend the December 14 Supreme Court hearing.  We now know that Mr. Shaked did not in fact go for military service (unless he is in the Soviet Army), and that he instead traveled to Moscow and, with the help of the Soviets, looked through the files containing the 1949 and 1951 transcripts which to this day have been denied the Demjanjuk defense.

This was the file which, after being partially inspected by Oleksander Yemets, was abruptly ordered to Moscow, beyond the reach of the Demjanjuk defense.  There, Mr. Shaked had full access to it, and undoubtedly saw what Yemets saw � and more.  He undoubtedly saw the transcripts of eyewitnesses, Treblinka guards, describing Ivan the Terrible and naming him as Ivan Marczenko, not Ivan Demjanjuk, identifying him with a physical description that could never describe Demjanjuk.

Yet, Mr. Shaked returned to Israel without the files, and pronounced them "irrelevant."  In this way, he kept them from the defense and from the eyes of the public and the Israeli press.  This was the file that the U.S. congressional delegation, of which I was a part, travelled to the Soviet Union to see and were denied the opportunity to see.  We wanted only what every defendant, without exception, in the United States receives as a matter of right: full and equal access to evidence, evidence in this case of the defendant's innocence.

Congressman Traficant has intervened to assist us in persuading the Soviets to turn over the file, but to no avail.  What are the Soviets afraid of?  Would they resist disclosure of a file which is irrelevant, or which confirms the prosecution theory?  No.  They are attempting to hide from the world a file which will show that for more than 14 years, they knowingly collaborated with U.S. and Israeli legal authorities to prosecute, convict and execute an innocent man.

Again, I am sure you are asking how errors like this can happen in a civilized legal system.  It is not surprising when you realize that careers are made on cases like this and careers can be lost; millions of taxpayers' dollars were expended, over $10 million alone in the state of Israel was used to prosecute and convict Mr. Demjanjuk.

Superpower prestige is at stake here: enormous tort liability can even attach against government officials.  It is no wonder that the prosecuting authorities are reluctant to admit error, that they desperately cling to their theory and, for the sake of their own survival, are fighting desperately to dismiss anything which contradicts it, even at the risk of executing the wrong man.

But the very fact that I am here with you today, in one of the most prestigious forums in the nation, that you are listening to me with an open mind, is cause for assurance that justice will prevail.  Legal miracles do happen, but not without some extraordinary help.  At this time I want to pay tribute to Congressman Traficant and the other individuals, primarily lawyers, who have given sacrificially of their time and their professional capabilities in the service of justice, by helping the defense in this case.

If I could single out one quality that unites all of these people, it is their idealism, their belief that our country and its system of law represent something exceptional in human experience, that the phrase "equal justice under law" is and must be a reality for every American, no matter what the charge.

And now, where do we go from here?  We already have enough evidence of the true identity of Ivan the Terrible to acquit Mr. Demjanjuk in any American court.  But tragically, that is not enough, because we know that the world imposes a higher standard of proof on us than it customarily imposes.  We are such that the Soviets are in possession of evidence which will conclusively prove the true identity of Ivan the Terrible.  We want to see that evidence.

This story can still have a just conclusion, and our family's 14-year legal nightmare can come to an end.  Individuals in this audience, within the sound of my voice here in Cleveland, in human rights organizations, in Jewish community organizations, in bar associations, can call responsible American officials and demand that action be taken to compel the Soviets to open that file to the Demjanjuk defense as it did to the prosecution.  This is not a controversial matter.  It requires no legal training or expertise.  It is simple justice.  If you hear me and do nothing � when you have the power to do something, you have sold our system short.  You have sold your own values short.  Let there be such a clamor for truth and honesty in this case that not even the Soviets will want to stand in the way of a correct factual determination of guilt or innocence.

I call upon the State Bar of Ohio, through its office in Columbus, to instruct its criminal justice section to make an inquiry with the Ohio congressional delegation, all members of the Ohio congressional delegation, for appropriate action.  I call upon the American Civil Liberties Union to intervene � remember, it is only for this one single purpose: to demand that the Soviet file be made available to us.  This is not a complex legal issue, as the ACLU often faces.  Instead, it is black-letter law, an open and shut case for the ACLU.  I call upon them to act.  If they need additional information from me, they can call me at (216) 642-9433.

I call upon the American Jewish Committee, and any groups such as Hillel, or synagogues, which are within the sound of my voice, and which are mindful of the Biblical commandment, "Justice, justice, shalt thou pursue."  Speak out, now.

And lastly, I call upon the Soviets themselves to turn over the files which we know they have, the ones showing Ivan the Terrible's true identity.  The Soviets are receiving millions of dollars of U.S. aid, on the pretext that they are a transformed society and a better political system.  As a taxpayer, I call on the Soviet authorities to demonstrate to the world that their system has changed one iota since they framed Jewish activist Natan Sharansky with fabricated evidence, since they tortured and persecuted Soviet Jews.  I challenge them to make the 1949 and 1951 transcripts available to the Demjanjuk defense as they made it available to the prosecution.

Before an innocent man dies, let us have access to the truth.  And the truth shall make all of us free.
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