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Appeals court chastizes government prosecutors

By JONATHAN JAY GIBIAN

CLEVELAND -- The 6th U.S. Circuit Court of Appeals has found Justice Department lawyers guilty of prosecutorial misconduct in the John Demjanjuk case, saying they acted 'with reckless disregard for the truth.'

The Cincinnati-based court, in a decision Wednesday, said the government misled the court by withholding evidence that could have helped Demjanjuk fight extradition to Israel in 1986.

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The decision, which overturned the appellate court's own 1986 order allowing Demjanjuk's extradition, did not address the suburban Cleveland resident's deportation or his loss of U.S. citizenship. But the ruling clears the way for Demjanjuk to appeal the denaturalization order issued by U.S. District Judge Frank Battisti in Cleveland.

The appeals court charged the government with failing to deliver information to Demjanjuk that could have helped him prove he was wrongly identified as a brutal World War II death camp guard known as 'Ivan the Terrible.'

In 1981, his citizenship was revoked by Battisti but extradition took precedence over deportation. Demjanjuk was jailed in 1985 and extradited to Israel in February 1986, after the Supreme Court rejected several appeals.

Demjanjuk, a former Ohio autoworker, was tried in Israel in 1988 for war crimes and sentenced to death. But the Israeli Supreme Court subsequently overturned the conviction and Demjanjuk was allowed to return to the United States in September to appeal his extradition, deportation and loss of citizenship.

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The court said the government '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 (evidence of innocence) requested by Demjanjuk,' the court said.

The Justice Department made no immediate comment.

But while chastising the U.S. government attorneys, the appeals court had only praise for Israeli government lawyers.

'The 'win at any cost' attitude displayed by some of the (U.S. government lawyers) contrasts sharply with the attitude and actions of the Israeli prosecutors, who were under domestic political pressures themselves,' the circuit court judges said.

'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 acquitted.'

The appeals court said the Israeli prosecutors did not learn of the additional evidence that eventually led to Demjanjuk's acquittal until after he was found guilty and sentenced to death.

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'They had prosecuted the case over many months and obtained the conviction and death sentence,' the judges wrote. 'The Israeli prosecutors then learned that there was Russian information suggesting that the charges against the accused may be false. Instead of withholding the information, the prosecutors travelled to Russia to investigate the matter thoroughly.

The 6th Circuit's ruling is based on the investigation of an appointed special master, U.S. District Judge Thomas Wiseman Jr. of the Middle District of Tennessee.

The special master did not entirely condemn the government lawyers in the Justice Department's Office of Special Investigations. He absolved the government attorneys of deliberately and intentionally failing to disclose information that they thought might prove Demjanjuk innocent.

Wiseman also found 'the various proceedings against Demjanjuk were not affected by political pressures from congressional sources and various Jewish groups in the United States.'

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