Neal Sher   Letter 02   16-Sep-1997   Please reply to charges
"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." Federal Appeals Panel 17-Nov-1993

September 16, 1997

Neal M. Sher
Schmeltzer, Aptaker & Shepard, P.C.
Suite 1000
The Watergate
2600 Virginia Avenue, NW
Washington, DC
USA         20037-1905

Dear Mr. Sher:

I do hope that you will be able to find time to set the record straight by responding to the questions that I put in my letter to you of September 15, 1997.  You may already be aware that there have been some serious charges leveled at goings-on at the OSI while you were either a leading participant or head, and even against you personally, and your rebuttals to these charges if they have been made at all do not as yet seem to have received the same media attention as the charges themselves.

Specifically, you will possibly have heard the following:

(1) Columnist and broadcaster Pat Buchanan has stated that the Demjanjuk case demonstrated that the OSI "has been thoroughly corrupted by its own malice and spirit of revenge."  (In David Friedman, Newsday, February 22, 1995)

(2) Representative James A. Traficant Jr. (D-Ohio) has suggested that the "OSI should be prosecuted for perjury." (In David Friedman, Newsday, February 22, 1995)

(3) Columnist Myron Kuropas has stated that "The OSI believed that the end, vengeance, justified the means.  That is why false documents were used, exculpatory evidence was hidden or destroyed, and critics were defamed."  (In Myron B. Kuropas, The Ukrainian Weekly, October 24, 1993)

(4) Israeli attorney Yoram Sheftel's comment is most germane, as he was intimately acquainted with the OSI-inspired Demjanjuk case, and in the following passage is not merely indicting the OSI generally, but assigns blame to you personally, and this is a blame so severe as to give you a place in the history books:

HADZEWYCZ: If you had the opportunity today to speak with the two former directors of the OSI, Allan Ryan ... What would you say to him today?

SHEFTEL: I would tell him that he is a key player in, in my opinion, the worst cover-up in concealing evidence in a major case taken by an American public prosecutor in modern history after the second world war.

HADZEWYCZ: And what would you say to his successor, Neal Sher?

SHEFTEL: Exactly the same.

HADZEWYCZ: Those two are equally guilty of this cover-up?

SHEFTEL: I would say Allan Ryan more, because Allan Ryan was in charge of the OSI in August 1978 and through 1981 this is the key, crucial time of the decision to prosecute or not to prosecute Demjanjuk.  And the decision to prosecute was made by Allan Ryan, who knew that Demjanjuk was not "Ivan the Terrible" and yet he prosecuted him for being "Ivan the Terrible."  Again, I don't know of a major case with such a deliberate cover-up as Allan Ryan, more, and Neal Sher, not much less, are responsible for.  (Roma Hadzewycz interviews Yoram Sheftel, The Ukrainian Weekly, July 21, 1996, p. 3)

(5) And finally here are a few quotations from the Federal Appeals Panel ruling of Nov 17/93, perhaps the most damning of the lot because they are the most specific and because they issue from the most impartial source:

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.
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 ... the withholding of which almost certainly misled his counsel and endangered his ability to mount a defense....
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.
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 the 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 New York Times, November 18, 1993)

And so I think you will understand, Mr. Sher, that the average Canadian reviewing these many charges that have been leveled against the OSI generally, and against you in particular, is likely to wonder about your suitability for the job of adviser to Canada's war crimes prosecutors.  The stain that seems to attach to your name is that you were willing to send an innocent man to his death in order to advance your own career.  I urge you to issue some statement in your own defense so that when you arrive in Canada, your work here will not fall under any cloud of doubt concerning your impartiality and competence.

Sincerely yours,

Lubomyr Prytulak