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UABA II   Ukrainian Weekly   24-Jun-1990   Roles played by Joshua Eilberg and Otto Horn


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The strange case of John Demjanjuk

Deceit of U.S. Justice Department could cause death of innocent man


In this issue The Ukrainian Weekly is publishing the second installment of a statement by the Ukrainian American Bar Association regarding the John Demjanjuk case.  The UABA statement was sent, prior to the beginning on May 14 of the presentation of Mr. Demjanjuk's appeal to the Supreme Court of Israel, to each member of the Israeli Knesset, each U.S. senator and representative and to over 600 members of the media worldwide.

The authors of this UABA statement are Michael Waris Jr., chairman of the board of governors, Andrew Fylypovych, president, and Lidia Boyduy Shandor, former recording secretary.

Part II

What caused the Department of Justice to engage in such acts of monumental unfairness?  The reason, we believe, is simple and frightening.  The U.S. Justice Department was under such intense pressure to win the Demjanjuk case that it was willing to frame an innocent man.  It took this desperate and despicable action in order to revitalize an agency, the OSI, which had come up empty-handed before.  They were admonished by one of their chief Congressional sponsors, Joshua Eilberg, then chairman of the Subcommittee on Immigration, Refugees and International Law, that their entire "program" was in jeopardy if they failed to win the Demjanjuk case.  Specifically, Congressman Eilberg wrote the following letter to the Attorney General:

August 25, 1978


Hon. Griffin B. Bell
Attorney General
Department of Justice, Washington, D.C.

Dear Mr. Attorney General:

Reports have reached me that deficiencies have become apparent in the preparation of the case of U.S. v. Demjanjuk, a denaturalization proceeding against an alleged Nazi war criminal now living in Cleveland, Ohio.

I wish to express my strong concern over the possible inadequate prosecution of this case.  A repeat of the recent Fedorenko adverse decision to the government's case in Florida would nullify and gravely jeopardize the long and persistent efforts of this Subcommittee in ridding this country of these undesirable elements.  Lack of preparation and a deep realization of the importance of these proceedings may have cost the government its decision in this case.  We certainly would regret seeing this happen again.

The creation of a Special Litigation Unit within INS was established to bring expertise and organization to this project.

This Unit should be fully entrusted with these cases.

I would strongly urge you to place the direction of the proceedings of the Demjanjuk case in the hands of the Special Litigation Unit.  We cannot afford the risk of losing another decision.

With best wishes.

Sincerely,
Joshua Eilberg,
Chairman


Not only did the Justice Department conceal the exculpatory core of the Polish Archives letter, it also interfered with visa applications so that defense witnesses could not come to the United States to testify.

Finally, as will be shown below, the Justice Department engaged in further direct acts of obstruction of United States justice, and duped the Israeli government into believing a case might exist against John Demjanjuk by actively causing a crucial witness to give false testimony.

Before discussing the criminal actions of the Justice Department, the Polish Archives warrant one further mention.  This will demonstrate how intent the American officials were in finding Mr. Demjanjuk guilty, rather than taking some simple steps (as is their legal duty and ethical obligation) to determine whether he might be innocent.  To repeat, their only concern was to win this case.

Thus, at the same time in 1979 when the Justice Department received the report that the Polish War Crimes Commission had no information regarding Mr. Demjanjuk, it also received a list of 43 known guards who were operating at Treblinka.  This list revealed that there were three men with the first name of "Iwan" at Treblinka during the period in question (one of whom, of course, was Iwan Marczenko).  Would it not have been fair, or at least prudent, for the Justice Department to have made some effort to determine if one of these other "Iwans" was "Ivan the Terrible"?

In the Walus case, after the trial court had been reversed, the Justice Department made an extensive investigation in Poland to verify Walus's story.  As reported in the Chicago Tribune story of 1984: "[Ryan] ordered a complete review of the evidence....  Hundreds of people who should have known Walus if he had been in Kielce and Czestochowa were contacted."

Yet there is no evidence whatsoever that the Justice Department made any effort to check to see if villagers as close as two miles from Treblinka were familiar with an "Iwan" from Treblinka who was referred to as "Ivan the Terrible."  And, as the Justice Department's 1979 interview with Otto Horn, discussed below, fully informed them, the guards at Treblinka frequently visited the nearby Polish villages to drink and otherwise carouse.  In other words, they had good reason to check in those nearby villages to see if anyone could identify "Ivan the Terrible," particularly after having just engaged in a similar exercise in the Walus case.

In retrospect, the experience of "60 Minutes" reveals how easy it would have been for the Justice Department to have done some local checking to see if any of the three Treblinka "Iwans" was the one everyone referred to as "Terrible."  Had Justice made this one simple effort, John Demjanjuk would have been spared years of needless anguish and his family untold suffering.  Perhaps of equal importance, the people and the governments of the United States and Israel would not have been victimized by the quite different course which the Justice Department followed.

Despite all the red flags which the foregoing raised, the Justice Department paid them no heed.  Apparently its institutional mind was so rigidly set to make a case against Mr. Demjanjuk that it was ready to proceed on the basis of the questionable Trawniki (not Treblinka) ID card supplied by the Soviets and the 35-year-old eyewitness testimony of five survivors of Treblinka and one of its German guards [Otto Horn].

How very frail this evidence really was will be established when we examine first the testimony of the German [Otto Horn] and then that of the five survivors.

The testimony of Otto Horn

The Justice Department was fully aware of the inherent weakness in the superannuated eyewitness testimony of Holocaust survivors.  Therefore, the testimony of Otto Horn, one of the Germans stationed at Treblinka, considered by the Justice Department to be unhampered by the emotional shortcomings of Holocaust survivor witnesses, was a keystone aspect of the Justice Department's evidence in the Demjanjuk litigation in the U.S.

That is why it is so important that readers in Israel and the U.S. consider most carefully the following description of the blatant falsity of Mr. Horn's testimony and the fact that a U.S. Justice Department attorney suborned Mr. Horn to commit that perjury.

On November 14, 1979, three Justice Department employees, attorney Norman Moscowitz, criminal investigator Bernard Dougherty and historian George Garand, interviewed Mr. Horn at his home in West Berlin.  The world (especially Israel) would never have known what occurred during that interview except for the fact that explicit reports were written by both Messrs.  Dougherty and Garand within a few days after the interview.  Those reports, containing explicit details of Mr. Horn's interview, in fairness should have been produced by the government in response to defense discovery requests at the initial denaturalization trial.  They were not.  In fact, the Justice Department secreted the documents and, after Mr. Demjanjuk was extradited to Israel and the U.S. case closed, threw away the originals.

As unbelievable as it may seem, they were fished out of the trash bins in the alley behind OSI's Washington offices!  The voluminous trashing of Justice Department documents vital to a proper defense of cases such as Demjanjuk's is another dishonest action of the Justice Department which deserves a full public airing.

Mr. Dougherty's report established that Mr. Horn knew "Ivan the Terrible" very well: They worked closely together every day during an unbroken period of about 12 months.  Mr. Horn said that Ivan never left Treblinka to work anywhere else during that entire time.

Mr. Dougherty's report describes how Mr. Horn, despite his intimate familiarity with "Ivan the Terrible," was unable to identify Mr. Demjanjuk as "Ivan the Terrible" from two different sets of photographs.  Remarkably, the report also sets the stage for the conclusion that a cunning and unprincipled U.S. Justice Department attorney would knowingly lead that witness to perjury at trial.

Mr. Dougherty's report states that when presented with the first set of eight photographs, one of which allegedly pictured Mr. Demjanjuk taken in the early 1940s:

Horn studied each of the photographs at length but was unable to positively identify any of the pictures, although he believed that he recognized one of them (not Demjanjuk) but was not able to indicate where he had met this person or provide his name.  [Emphasis added]

The next sentence in Mr. Dougherty's report reads as follows:

The first series of photographs was then gathered and placed in a stack, off to the side of the table with that of Demjanjuk face up on the top of the pile, facing Horn.  [Emphasis added]

Mr. Dougherty then reports that another set of eight photographs, one depicting Mr. Demjanjuk about 10 years later than the photograph of him in the first set, with a much fuller and rounder face, was "presented" to Mr. Horn.

After examining the second set and studying this latter photograph at length, and upon glancing at the earlier picture of Mr. Demjanjuk, Mr. Horn "identified them as being the same person."  After considerable further "careful" study of the two photographs, "Horn positively identified the photographs (of Iwan Demjanjuk) as being the 'Iwan' that he knew at the gas chamber in Treblinka."

Three months after the foregoing interview, Mr. Moscowitz and two different Justice Department men (not Messrs. Dougherty or Garand) privately, i.e., with defense counsel absent, met with Mr. Horn on February 24, 1980, to prepare him as a witness for the government.

Two days thereafter, on February 26, 1980, the testimony of Mr. Horn was videotaped with counsel for Mr. Demjanjuk for the first time present and cross-examining.  Of course, the cross-examination would be meaningless, inasmuch as defense counsel had no reason to suspect that this key government witness was being led through the big lie by a federal prosecutor.

Moreover, it is very important to remember that at the time Mr. Horn was being privately prepared to testify by the Justice Department attorneys on February 24, 1980, Mr. Moscowitz was laboring under the pressure of yet another judicial rejection of the worth of Holocaust survivor eyewitness testimony: The Court of Appeals for the Seventh Circuit had, on February 13, 1980, held that the testimony of 12 such witnesses was not credible enough to find Frank Walus guilty of Nazi war crimes in Poland.

A year later, on February 17, 1981, the videotaped testimony of Mr. Horn was presented in the denaturalization proceeding in Cleveland, in lieu of Mr. Horn's appearance in the courtroom.

Here is how Mr. Horn's testimony began:

Question [by Mr. Moscowitz of the Justice Department]:  Would you describe, in your own words, how these photos were shown to you; and what, if anything, happened when you looked at them?

Answer:  First I was shown these larger pictures.

After nine short questions and answers, Mr. Horn was asked:

Q:  Did you in fact identify or recognize someone in those photographs"

A:  Yes, this Iwan.

This is the first untruth, and one of major importance.  We know from Mr. Dougherty's report that after a lengthy study of the first set of photographs, Mr. Horn could not identify a single photo as being a picture of a person he knew.

The next question by Mr. Moscowitz was:

Q:  Were you shown another set of photographs, aside from these which we've just discussed?

A:  Yes.

Q:  When you looked at those photographs this other set where was this first set of photographs?

Why did Mr. Moscowitz ask this question?  He knew as a fact, because he had been there, and because Messrs. Dougherty and Garand had so explicitly described the situation in their reports (which Mr. Moscowitz admits he studied before he prepared his written questions to Mr. Horn), that the first set of photos was on the table right in front of Mr. Horn, arranged in a stack with Mr. Demjanjuk's picture on the top with its face up.  Obviously, Mr. Moscowitz did not want this fact to be disclosed and he knew that Mr. Horn's reply would not reveal it.

Mr. Horn's reply to Mr. Moscowitz's foregoing question neither surprised or disappointed Mr. Moscowitz.  Mr. Horn said:

A:  They had been removed again.

Thus, Mr. Horn's answer was a direct lie.  Mr. Moscowitz, however, not being satisfied, drove the untruth home further with the following very leading questions:

Q:  And at this time you were looking at this other set, you could not see this first set?

A:  Right.

A few other questions and answers will further demonstrate how flagrantly false Mr. Horn's testimony was:

Q:  Did while you were looking at these photographs did anyone suggest to you that you pick that you identify or pick a particular photograph?

A:  No.

...

Q:  At the time that you were looking at these photographs now in front of you, Government Exhibit 3, were you looking at the other set of photographs?

A:  No.

Q:  Were these photographs anywhere in your view?

A:  No, they went back into an envelope and away.

None of the contemporaneous written reports even mentioned an envelope; the first set of photographs, with Mr. Demjanjuk's face directly peering at Mr. Horn, always remained in Mr. Horn's sight; and they never went "away."

Attorney Moscowitz knew he was leading his witness through flagrantly false testimony.  Moreover, he purposefully elicited minute, but fabricated details, in order to ensure that there would be no doubt as to the "validity" of this staged identification process.

Furthermore, is it not perfectly clear that Mr. Moscowitz was fully aware that this false testimony could have a most serious effect upon the life of Mr. Demjanjuk, leading to such consequences as the loss of his American citizenship, deportation from the U.S., extradition to Israel, subjection to criminal prosecution in Israel for serious crimes against humanity and, if he were to be found guilty, a possible loss of his life?

Would Israel have subjected John Demjanjuk to trial as a war criminal if it had known the truth?


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