Court of Appeals
New York Times
This was fraud on the court
Excerpts From Ruling on Demjanjuk
Special to the New York Times
The question before the court is whether attorneys in the Office of Special Investigations (O.S.I.), a unit within
the Criminal Division of the Department of Justice, engaged in prosecutorial misconduct by failing to disclose
to the courts and to the petitioner exculpatory information in their possession during litigation culminating in
extradition proceedings, which led to the petitioner's forced departure from the United States and trial on capital charges in the State of Israel.
WASHINGTON, Nov. 17 — Following are excerpts from today's opinion by the United States Court of
Appeals for the Sixth Circuit, in Cincinnati, in the case of Demjanjuk v. Petrovsky. The opinion was written
by Senior Judge Pierce Lively, who was joined by Chief Judge Gilbert S. Merritt and Damon J. Keith.
Reference to the report of the special master is to an earlier review of the case by Judge Thomas A. Wiseman Jr. of Federal District Court in Nashville.
Demjanjuk's claims of misconduct consisted of the Government's failure to disclose information that pointed
to another Ukrainian guard at Treblinka, Ivan Marchenko, as "Ivan the Terrible." Demjanjuk's
denaturalization and deportation orders were based on his alleged misrepresentations concerning his wartime
whereabouts and activities at the time he applied for entry into the United States as a displaced person and in his application for citizenship.
The attitude of the O.S.I. 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 the legal proceedings should be. The master found that the O.S.I.
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.
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).
The O.S.I. 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."
2. The list of Ukrainian guards at Treblinka furnished to O.S.I. by the Polish Government was certainly
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 Feb. 26, 1980.
Demjanjuk's counsel objected to testimony on the videotape concerning the identification from photographs
on the specific ground that O.S.I. 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 O.S.I. investigator and historian directly conflicted with Horn's testimony at the
deposition that when he finally identified Demjanjuk's photograph in the second spread he could not see the first set of pictures.
Thus, we hold that the O.S.I. attorneys acted with reckless disregard for the truth and for the Government's
obligation to take no steps that prevent an adversary from presenting his case fully and fairly. This was fraud
on the court in the circumstances of this case where, by recklessly assuming Demjanjuk's guilt, they failed to
observe their obligation to produce exculpatory materials requested by Demjanjuk.
It is obvious from the record that the prevailing mindset at O.S.I. was that the office must try to please and
maintain very close relationships with various interest groups because their continued existence depended upon it.
The "win at any cost" attitude displayed by some of these record documents and statements contrasts sharply
with the attitude and actions of the Israeli prosecutors, who were under domestic political pressures
themselves. But for the actions of the Israeli prosecutors, the death sentence against Demjanjuk probably
would have been carried out by now. He would have been executed on a charge for which he has now been
The Israeli prosecutors did not learn of the exculpatory evidence from Russia until after the accused was found
guilty and sentenced to death in the Israel trial court. ... Instead of withholding the information, the
prosecutors traveled to Russia to investigate the matter thoroughly. They marshaled the exculpatory evidence,
brought it back to Israel, and in the face of extremely strong popular feelings against the accused, publicly
turned it over to the Supreme Court of Israel. Basically, the Israeli prosecutors confessed error in the face of
intense political pressure to get a conviction.