Judge questions prosecutors on disclosure of Demjanjuk evidence (01/24/93)

Judge questions prosecutors on disclosure of Demjanjuk evidence

NASHVILLE, Tenn. - Two former government lawyers last week defended their work on the case against former Cleveland autoworker John Demjanjuk in testimony before Judge Thomas A. Wiseman of the Federal District Court. Both men said they never doubted the defendant was "Ivan the Terrible," the brutal guard who ran the gas chambers at the Treblinka death camp in 1942-1943.

Appearing before Judge Wiseman, appointed special master in the case to hold hearings on whether there had been prosecutorial misconduct in the Demjanjuk case, Norman A. Moskowitz said he recalled the compelling accounts of Treblinka survivors who identified photographs of Mr. Demjanjuk. The New York Times reported that Mr. Moskowitz, who had been an attorney at the Office of Special Investigations, conceded there was other information from war crimes inquiries and former guards' testimony taken in the USSR, Poland and Germany that raised some questions about the survivors' identification of Mr. Demjanjuk as "Ivan" of Treblinka.

According to The Times, Mr. Moskowitz said he and other government lawyers had not provided Mr. Demjanjuk's lawyers with this information largely because of the narrow interpretation of what they were required to do to assist the defense and because they were not specifically asked for the information.

"I didn't have the feeling then or at any other time that we were sitting on information that would hurt our case and would help the Demjanjuk defense," The Times quoted him as testifying on January 14.

Interrupting the questioning of Mr. Moskowitz by Edward Marek, a lawyer for Mr. Demjanjuk, Judge Wiseman asked how the former OSI attorney could have arrived at such a limited interpretation of what he was required to provide to the defense. He asked Mr. Moskowitz whether his experience with the rules of discovery in criminal cases provided any basis for "such a narrow interpretation," The Times reported.

Mr. Moscowitz suggested he would have provided the information if it had been requested and said defense lawyers "showed a curious lack of interest" in that and other information, The Times story noted.

On January 15, testimony was given by John Horrigan, an assistant attorney general in Cleveland at the time the Demjanjuk denaturalization case was being heard.

Mr. Horrigan said he had not been privy to some information and documents in the possession of the OSI, the Justice Department's Nazi-hunting unit, and said he first saw some of those documents, including excerpts of depositions by former Treblinka guards taken by Soviet investigators, in 1981, after a federal judge in Cleveland had stripped Mr. Demjanjuk of his U.S. citizenship.

He testified he didn't think he read those documents, "because the case was over for me," The Times reported.

The Times also reported that Messrs. Moskowitz and Horrigan had both said the Demjanjuk denaturalization case was a civil action and, therefore, the government had not been subject to the disclosure rules required in criminal cases. As a result, The New York Times reported, if defense lawyers were not able to pinpoint a document, they were not shown it, or if a document did not specifically mention Mr. Demjanjuk, though it did deal with Treblinka or "Ivan the Terrible," it was not turned over to the defense.

Mr. Marek and Judge Wiseman both focused on these points. Mr. Marek underlined that it was just as significant when those with knowledge of Treblinka did not mention someone as notorious as "Ivan the Terrible" or did not indicate Mr. Demjanjuk was at that camp, as it was when they did mention him.

At the conclusion of the two days of hearings, Judge Wiseman said he plans to hold more hearings in Boston and Los Angeles to take the testimony of other government lawyers, including Allan A. Ryan, former director of the OSI. He added that he expects to complete his investigation by May.

Meanwhile, Mr. Demjanjuk continues to await the Israeli Supreme Court's decision on his final appeal of his conviction and death sentence.

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