Washington Post | 16Nov2010 | David Rising (AP)

New US documents could feature in Demjanjuk trial

BERLIN -- A long-secret report on the U.S. Department of Justice's Nazi-hunting unit that was made public over the weekend could help get John Demjanjuk out of jail, his attorney has told The Associated Press.

Defense attorney Ulrich Busch said he will submit a motion after the trial resumes next week, relying on the report, that was posted Saturday by the New York Times, arguing that Demjanjuk should be given credit for time he served in Israel where he was tried in the 1980s and 1990s.

He hopes to have Demjanjuk freed while his trial in Germany continues if the Munich state court agrees that the time he already spent in prison exceeds the maximum sentence he could receive.

Trial prosecutor Hans-Joachim Lutz said Tuesday he had not had a chance to read the whole report on the Justice Department's Office of Special Investigations and could not comment.

"We'll have to see how it develops to determine whether it could be relevant," he told the AP.

Though Ukrainian-born Demjanjuk, 90, denies having ever served as a Nazi death camp guard, he had his U.S. citizenship revoked in 1981 after the U.S. Justice Department alleged he hid his past as the notorious Treblinka death camp guard "Ivan the Terrible."

He was extradited to Israel, where he was found guilty and sentenced to death in 1988, but the conviction was overturned five years later as a case of mistaken identity.

In a 1993 review of the American denaturalization hearing that led to the extradition to Israel, a federal U.S. appeals panel concluded that the Office of Special Investigations engaged in "prosecutorial misconduct that seriously misled the court."

It said the office failed to disclose exculpatory information -- including statements of Ukrainian guards at Treblinka who "clearly identified" another man as "Ivan the Terrible" -- to the defense in a timely fashion due to a "win at any cost" attitude.

The Department of Justice report made public Saturday said the Office of Special Investigations' handling of the Demjanjuk case was "the greatest mistake it ever made."

Demjanjuk, a retired Ohio autoworker, was deported from the U.S. to Germany in May 2009 to stand trial on 28,060 counts of accessory to murder on allegations he was a guard at Sobibor, a different death camp in Nazi-occupied Poland, and had also been at the SS training camp Trawniki.

Busch has already argued unsuccessfully that the Sobibor allegations were part of the Israel trial, so Demjanjuk should be given credit for his 7 1/2 years behind bars in Israel -- including five spent on death row.

But Busch said the 600-page report on the Office of Special Investigations spells it out in the chapter devoted to the Demjanjuk case, saying that there was "mention as well of his having trained at Trawniki and having served briefly at the Sobibor death camp" during the initial Israel trial.

It continues that the Israeli Supreme Court later ruled that it "had no doubt that Demjanjuk had been at Trawniki, (German concentration camp) Flossenbuerg and Sobibor."

"I have argued this since the first day of the trial - but in this report it is explicitly confirmed," Busch said, adding that Demjanjuk still denies having served as a guard at any camp. "That strengthens the defense."

In court filings, the Justice Department has said that the report was never finalized, contains numerous factual errors and omissions and does not represent its official position.

In addition to the time in Israel, Demjanjuk has spent a year in custody in the U.S. and 18 months in Germany, Busch said -- more than 10 years overall.

Though the charges against Demjanjuk carry a maximum of 15 years, for a defendant of his age Busch said German courts typically reduce the possible sentence to two-thirds of the maximum -- meaning his client has already served more time than he could likely receive if found guilty.

Demjanjuk is currently being held in a prison hospital outside Munich and needs regular medical care, and it is unclear where he would go if released.

Even if he is set free once the trial is over, the U.S. has stripped him of his citizenship so he would not be able to rejoin his family in Ohio - though they vow to fight for his return.

"When he was acquitted in Israel, the U.S. Department of Justice said he could never come home but our courts permitted it and found the DOJ committed fraud," his son, John Demjanjuk Jr. told the AP in an e-mail, referring to the Department of Justice.

"If he is released in Germany and physically able to survive the trip home once again, we will aggressively pursue all legal means to effect his return with an emphasis on any new evidence of misconduct which has surfaced since his last hearing in the U.S."