Kyiv Post | 06May2011 | Associated Press

US gov't opposes public defender in Nazi case

U.S. prosecutors asked a judge Friday to reject a federal public defender's request to represent a retired Ohio autoworker who is on trial in Germany for alleged Nazi war crimes.

John Demjanjuk, 90, already has a U.S. attorney willing to work for free, so he doesn't need a public defender, prosecutors said in a U.S. District Court filing.

The public defender asked last week to be appointed co-counsel, citing a 1985 FBI report recently uncovered by The Associated Press that challenged the authenticity of a Nazi ID card used as evidence in the trial.

The German court is nearing a verdict on more than 28,000 counts of accessory to murder against Demjanjuk on allegations he served as death camp guard. He denies the charges.

Federal prosecutors said there are no current U.S. proceedings requiring representation for Demjanjuk. They said Demjanjuk hasn't requested a public defender and said it was odd for the public defender to seek to have itself appointed when Demjanjuk could ask for one through his German or U.S. attorneys.

The government also said the public defender's request focused on speculation that the U.S. might be withholding evidence that could clear Demjanjuk in his German trial. The documents in question have been provided to the German court, prosecutors said.

"Thus, to the extent that the documents are relevant, they have been and will be appropriately considered by the German court," prosecutors wrote.

The filing said the public defender's allegations of tainted evidence "appear to have been included solely to sensationalize this motion and criticize the government."

The public defender, Dennis Terez, argued in his own court filing that the FBI report raises "a fundamental issue of fairness" in Demjanjuk's case.

"That issue is: why has the government for almost 30 years withheld, contrary to court rule and order, documents which on their face are plainly exculpatory and relevant?" Terez said in his filing Friday.

"The government should welcome the chance to have that cloud lifted so that the outcome of its prosecution is not tainted — unless, of course, it has something to hide," he said.

The AP reported in April that the 1985 file indicated the FBI believed a Nazi ID card purportedly showing that Demjanjuk served as a death camp guard was a Soviet-made fake.

His defense attorneys have repeatedly claimed that the card and other evidence against him are Soviet forgeries. The FBI report provides the first known confirmation that American investigators had similar doubts.

Demjanjuk's son, John Demjanjuk Jr., issued a statement Friday expressing outrage at the government's opposition to Terez's request.

"As an American, it is appalling to me that the exact same Justice Department division which was found to have committed fraud on the court in the Demjanjuk case does not want the FBI report matter to be fully investigated now that it appears they have cheated my father and the U.S. judiciary again — in the very proceedings that were investigating their prior fraud," he said.
In three decades of U.S. hearings, an extradition, a death sentence followed by acquittal in Israel, a deportation and the German trial, the arguments have relied heavily on the photo ID from an SS training camp that indicates Demjanjuk was sent to the Sobibor death camp in occupied Poland.

The German court rejected a defense request to suspend the trial so that defense attorneys could travel to the U.S. to examine the new material.