|December 19, 1997|
E-mail: [email protected]
Dear Ms. McLellan:
Just what expertise is it that Neal Sher recently hired by your government will be sharing with Canadian Nazi hunters? One would expect that the most relevant expertise would be expertise in Canadian law, and yet that does not seem to be a plausible answer, as Neal Sher is an American.
Ottawa Editor David Vienneau (Toronto Star, Dec 8/97) quotes Sher as saying that his Nazi hunting relies on "imaginative law enforcement techniques, aggressive tactics and a fire in the belly," which falls short of being informative. The Vancouver Sun (Dec 13/97) was able to pin Sher down even less precisely: "Neither Sher nor McLellan explained the exact nature of his role or how much time he'll spend in Canada."
However, a series of three articles by Robert Gillette in the Los Angeles Times (August 27 and 28, 1986 a copy is enclosed) does suggest a more concrete answer to this question, and that answer is not one that is flattering to Mr. Sher. The answer suggested by Robert Gillette is that Mr. Sher has built a career upon trusting evidence that others judge to be untrustworthy. From this emerges the hypothesis that the methodology that Mr. Sher hopes to sell to Canadian prosecutors is the habit of relying on the unreliable.
Any reader of the Gillette articles might come away with the following questions to which Mr. Sher might owe Canadians an answer:
|But there was to be no formal written agreement, only an oral understanding, making this a unique arrangement between the two superpowers at a time when relations in every other field were rapidly deteriorating. (Gillette, Los Angeles Times, April 27, 1986, p. 1)|
The question that arises is why this international agreement should differ from all others in never being put to paper? What is it that the average American might disapprove of in this agreement that he or she should be denied knowledge of it? And now that Canada seems about to embark on the same course of trusting Soviet data if Mr. Sher is to have his way do not Canadians have a right to ask about the nature of the Soviet-American agreement whose precedent they seem about to follow?
|In the case of accused American war criminals, the critics believe, the Soviet aim is not only to bring a small number of bona fide murderers to justice but to tar traditionally anti-communist emigre communities in the United States as broadly as possible with the same brush. The Soviets, the critics say, want to stir dissension among emigre groups and to blacken them in the eyes of Soviet citizens. (Gillette, Los Angeles Times, April 27, 1986, p. 30)|
|It would be, as [OSI head] Ryan observed, a "wildly improbable marriage" between the judicial authorities of a democracy and those of a "totalitarian regime," who evinced "no hint that they understood what we were talking about" when the Americans tried to explain the basic concepts of due process that Westerners consider essential to a fair trial." (Gillette, Los Angeles Times, April 27, 1986, p. 1)|
|They [American lawyers and judges] note, for example, the Soviet Union's long history of bending justice and inventing evidence to suit its political aims, from the theatrical show trials of old Bolsheviks in the 1930s to the trials of Anatoly Shcharansky and other human rights activists in the 1970s and 1980s. (Gillette, Los Angeles Times, Apr 27/86, p. 30)|
|No Soviet witness in a war crimes case has yet appeared in an American court, although some have traveled to West Germany to testify in other cases. (Gillette, Los Angeles Times, Apr 27/86, p. 30)|
The Soviets strictly control the American's access to witnesses.|
Their testimony is videotaped for use in American courts. U.S. defense lawyers have the right to cross-examine the witnesses, and OSI will even pay the lawyers' travel expenses to the Soviet Union. But, in all cases, Soviet prosecutors supervise the taking of depositions, frequently seek to restrict cross-examinations and often urge the witnesses to adhere to written summaries or "protocols" of their earlier interrogations by the KGB. (Gillette, Los Angeles Times, Apr 27/86, p. 30)
|Not only did the witness testify in an intimidating atmosphere, the judge [Debevoise] said, but OSI attorneys contributed to this atmosphere by what he called their "extreme deference" to the presiding Soviet prosecutor, "who was nothing more than their partner in the prosecution of this case." (Gillette, Los Angeles Times, Apr 27/86, p. 32)|
In no case were American investigators (representing either the prosecution or the defense) allowed access to a witness who had not been first interrogated by the KGB.
[Philadelphia trial lawyer John Rogers] Carroll said his experience in two evidentiary hearings in the Soviet Union in 1981 and 1983 convinced him that cross-examination of witnesses under Soviet controls "has little effect on someone who knows that all he has to do is stick to his story and he won't get into trouble."|
"He (a witness) knows I can't go into his story, investigate the details," Carroll said. "He won't be prosecuted for perjury. He knows that none of the normal sanctions (against false of misleading testimony) apply here." (Gillette, Los Angeles Times, Apr 27/86, pp. 30-31)
|The Soviets have refused to give OSI prosecutors or defense attorneys access to wartime archives to search for other evidence that might bear on a defendant's guilt or innocence. Lawyers, and some federal courts, have objected that these restrictions make it almost impossible to guarantee a defendant's due process right to a meaningful defense. (Gillette, Los Angeles Times, Apr 27/86, p. 30)|
|Soviet evidence has played a major role in these cases, often with little corroborating evidence from other sources. (Gillette, Los Angeles Times, Apr 27/86, p. 30)|
|However, the OSI's cases have led the agency to depend far more heavily on Soviet evidence than on Polish. It has taken testimony for instance, from fewer than half a dozen Polish witnesses since 1980, but in the same period has interviewed more than 100 Soviet witnesses. (Gillette, Los Angeles Times, Apr 27/86, p. 30)|
[Judge] Debevoise gave particular weight to testimony by a former Soviet prosecutor, now living in the United States, who explained how witnesses are commonly manipulated in Soviet courts.|
The former prosecutor, Frederick Neznansky, acknowledged that many witnesses are truthful and that many investigations are honestly conducted. But he said that when the evidence fails to support the desired result, there is intense pressure from prosecutors and judges alike to remold it.
"The way it's explained to a witness is often very lofty," Neznansky said. "The accused is a criminal against the Communist Party, against the state, and is probably a parasite and an enemy of the people. So it is the civic duty of the witness to testify in the appropriate way." ...
Failing this, he said, "sometimes they (witnesses) are threatened. Not in a serious way, but people could be told they will be fired (from their jobs) if their testimony is not appropriate." (Gillette, Los Angeles Times, Apr 27/96, p. 32)
Similarly, a former officer in the Latvian KGB who defected to the United States in 1978, Imants Lesinskis, said he found that witnesses in war crimes cases with which he dealt as a propaganda officer were often totally compliant.|
"They had been in Soviet (labor) camps for many years and they were afraid to go back. So if you asked them the right questions, they confirmed all," Lesinskis said. (Gillette, Los Angeles Times, Apr, 27/86, p. 32)
The day after [Philadelphia trial lawyer John Rogers] Carroll left, however, a Soviet official involved in the hearing approached an American diplomat who was serving as a liaison between the team from the Office of Special Investigations and local authorities.|
Speaking privately and with some emotion, one source said, the official disclosed that the five witnesses had not been brought to Cherkassy the day before the hearing began, as the Americans had been told, but had been confined in the town for well over a week of intensive coaching and rehearsals of their testimony.
Tailoring the Testimony
This source, who was fully informed of the incident that summer, said the official was unable to specify to what extent their testimony was actually perjured that is, false or misleading. But the official made it clear that the Soviet aim in drilling the witnesses on their stories was to tailor them to the needs of the American prosecutors, making the testimony as incriminating as possible.
It was in this context that the official asked in disbelief how the Americans could allow themselves to be "taken in" by what was, in fact, a staged performance.
"Don't you people know that we remember what we are told to remember, that we say what we are told to say?" the informant was reported to have said. He reportedly went on to describe Moscow's purpose in essentially the same political terms used by OSI's critics in the United States.
"This is the way the (Soviet) regime tries to legitimize itself in the eyes of Ukrainians, by discrediting the emigres," the official was quoted as saying.
The U.S. Embassy in Moscow promptly reported the incident to the Justice Department. Several weeks later, the American diplomat was flown to Finland, where representatives of the Office of Special Investigations among them the current director, Sher spent about 90 minutes debriefing him in the security of the U.S. Embassy in Helsinki.
In an interview with The Times in January in which this incident was not mentioned, Sher said there was no evidence that the Soviets have ever dictated how witnesses were to testify to OSI attorneys or in any similar war crimes cases.
"There is no indication that the Soviets have said (to witnesses), You have to say this or you have to say that,'" Sher said. He added that if at any time the KGB had "spoon-fed a witness," then this "would show up on cross-examination. ... Our system provides the means to detect it."
Asked in a more recent interview how he reconciled this with the Soviet official's statement in Cherkassy, Sher acknowledged that he had debriefed the American diplomat in whom the Soviet official had confided but said the OSI concluded the incident had no significance.
"We looked at it very carefully," Sher said. "It was clear to us that there was no hard evidence about anything, that these witnesses were not compromised."
He said that he did not recall any reference to the coaching of witnesses. "It was clear to us that what was said was an offhand remark, nothing hard to it, a comment by someone who may have been disgruntled," he said.
However, a U.S. diplomat who served in Moscow and was familiar with the incident said this characterization was not correct. He said that although any Soviet official who would dare to make such a disclosure would be disgruntled almost by definition, this did not impugn the accuracy of remarks that seemed carefully considered, informed and sincere.
"The official's point, the diplomat said, "was to let us know we were being misled."
Out of Court Settlement
Sher said the case was later settled out of court not because of concern about compromised testimony but out of consideration for the defendant's poor health.
Carroll, the defense attorney in the case, said he was never told about the incident, although it would have substantially affected his handling of the case. "As for telling me anything about the coaching of witnesses never," Carroll said in a telephone conversation. "Why would they? I was the other side."
He said the case lay dormant on the docket of U.S. District Judge E. Mac Troutman of the Eastern District of Pennsylvania for more that two years, from 1983 until last October. Then Troutman, impatient with the Justice Department's lack of action, prodded the Office of Special Investigations to settle it out of court. To his amazement, Carroll said, OSI agreed to settle without trial, but offered no plausible reason for its action.
"I keep close track of these things, but this was one of only two cases I had ever heard of in which they agreed to settle," he said. "They said they did it out of consideration for the guy's health, but that's patently false. They never do anything for anyone's health."
He noted that the Justice Department deported 86-year-old Adrija Artukovic to Yugoslavia last December on a stretcher to stand trial on charges of directing the execution of thousands of civilians during World War II.
Other attorneys have complained that OSI continued prosecuting two other suspected war criminals even thought they were hospitalized with terminal cancer and closed the cases only on receipt of death certificates and photographs of the bodies. (Gillette, Los Angeles Times, Apr 28/97, p. 7)
(4) Will Mr. Sher give Canadians a stronger justification for using Soviet evidence than he has been able to give in the past?
|"As a practical matter, it is difficult to conceive of even the KGB or anyone else for that matter fabricating document after document and suborning perjury from witness after witness in every one of OSI's cases," the agency's current director, Neil M. Sher, said. (Gillette, Los Angeles Times, Apr 27/86, p. 30)|
In the above quote, we see Neal Sher putting forward the argument that some of the Soviet evidence that he relies upon in his prosecutions is likely to be valid. From Neal Sher's point of view, it would seem, it is enough that as some of his Soviet evidence must be valid, then some of those whom he denaturalizes and deports must have been guilty. This is a standard of evidentiary quality that Canadian prosecutors might shy away from importing into Canada.
Another of Sher's statements, which has already been quoted further above, again reflects his naivete:
|He [Sher] added that if at any time the KGB had "spoon-fed a witness," then this "would show up on cross-examination. ... Our system provides the means to detect it." (Gillette, Los Angeles Times, Apr 28/97, p. 7)|
But we have already seen above that the circumstances of the cross examination of a Soviet witness are such as to make it next to impossible to discredit him. It is not, in fact, "our system" that is being implemented in the cross-examination of a Soviet witness on Soviet territory it is an attempt to blend our system with the Soviet system.
The OSI, under Sher's direction, has made other attempts to justify its use of Soviet evidence, and all of these justifications ranged from naive to disingenuous. In the passage below, for example, Neal Sher's OSI argues that Soviet fraud is inconceivable first because it is beyond the means of the Soviets to perpetrate it, second because it would inevitably be detected by the Americans, and third because the possibility of getting caught would make it "illogical" for the Soviets to practice it. Any adult who has spent some of his time on planet earth in recent years should be able to see that offering such justifications as the three above for trusting Soviet evidence demonstrates appalling naivete. Here is a description of the Neal Sher OSI justification it is in response to District Judge Dickinson R. Debevoise rebuking "the OSI for failing to ensure that Soviet witnesses in the case had not been coerced" (Gillette, Los Angeles Times, Apr 27/97, p. 30).
"While the Soviet Union may act with impunity in legal proceedings confined to its own borders, it cannot do so in cases under the scrutiny of foreign judges, lawyers and witnesses."|
Successful fraud by the Soviet Union in these matters, the OSI argued in its appeal, "is beyond its capabilities" and in any case would be "inevitably doomed to exposure."
Asked in an interview whether this was not, in effect, an assertion of infallibility on the part of the American judicial system, Sher said it was not. "It is just an assertion of complete faith in the ability of our courts to ascertain the truth," Sher said.
He added that it would be illogical for the Soviets to risk destroying the credibility of all the evidence they supplied by tampering with some of it for propaganda purposes. (Gillette, Los Angeles Times, Apr 27/86, p. 30)
In public statements, both the Office of Special Investigations and Jewish organizations have stressed the lack of concrete proof that the Soviets have actually falsified evidence in war crimes cases.|
In its report last June, for example, the Anti-Defamation League said, in a passage underlined for emphasis: "For all their claims and charges, the emigre activists have been unable to document a single instance, over the past 40 years, of forged evidence or perjured testimony being obtained from the Soviet Union for use in Western trials of accused Nazi war criminals." (Gillette, Los Angeles Times, Apr 28/86, p. 6)
The agency's [OSI's] critics, on the other hand, argue that it fails to recognize the ease with which Soviet witnesses can be manipulated, perhaps because excessive zeal has clouded its judgment.|
"The Soviets have everything they need the motive, the experience, the control to create staged cases," John Rogers Carroll, a Philadelphia trial lawyer, said in a recent interview. (Gillette, Los Angeles Times, Apr 27/86, p. 30)
In Canada, where a royal commission has spent more than a year determining whether, or how, to conduct its own investigation of suspected war criminals, misgivings about the use of Soviet evidence are shared by some members of Parliament.|
"The American approach is totally inadequate," Andrew Witer, the chairman of a newly formed parliamentary committee on human rights, said in a recent interview. At a minimum, Witer said, Soviet witnesses should be interviewed in a "non-prejudicial" setting such as an embassy, out from under the gaze of a Soviet prosecutor. (Gillette, Los Angeles Times, Apr 27/86, p. 30)
(7) Will Mr. Sher tell Canadians how today's FSU justice is appreciably better than yesterday's USSR justice?
|Like several others, he [a Midwestern attorney who asked that his name not be used] said his law firm had received anonymous threats after it had defended an accused war criminal. (Gillette, Los Angeles Times, Apr 27/86, p. 32)|
And accused persons who are acquitted may expect to be subjected to bombs. The Gillette articles mention three bomb blasts leading to the killing of two individuals acquitted by the courts and the wounding of a passer-by in the third case.
For example, there was the case of Tscherim Soobzokov:
The controversy took a violent turn last year, with twin bomb attacks one of them fatal on two former Soviet refugees who had been cleared of war crimes charges. A spokesman for the FBI in Washington, Lane Bonner, said the bureau is continuing an intensive investigation into the two bombings and believes that the militant Jewish Defense League may have been responsible.|
Last Aug. 15, Tscherim Soobzokov, 67, whom the Office of Special Investigations had sought unsuccessfully to deport, was lured out of his home in Paterson, N.J., at 4:30 a.m. by a ruse a fire set in his car and suffered massive injuries to his lower body as a bomb exploded at his doorstep. His wife, daughter, 4-year-old grandson and a neighbor were also injured.
Accused by the Office of Special Investigations of having served in the German Waffen SS, the combat arm of Hitler's elite security force, Soobzokov had been a target of protests by the Jewish Defense League after the Justice Department dropped its charges for lack of evidence. (Gillette, Los Angeles Times, Apr 28/97, p. 6)
|Four months later, on Sept. 6 , Sprogis, 70, narrowly escaped injury when a bomb exploded at his home in Brentwood, N.Y. The Federal Bureau of Investigation has said that this, and a similar bombing three weeks earlier in Paterson, N.J. which killed a naturalized Ukrainian who had been cleared by the OSI may have been carried out by the militant Jewish Defense League. (Gillette, Los Angeles Times, Apr 27/86, p. 31)|
Note that the above quotation also makes reference to the murder of a Ukrainian who had been "cleared by the OSI." "Fingered by the OSI for the benefit of the JDL" might have been a more apt description. Gillette further elaborates the attempt on Sprogis's life:
Then on Sept. 6, the day Soobzokov died, a similar bomb detonated at 4:30 a.m. in the Long Island community of Brentwood, N.Y., damaged the home of Elmars Sprogis, 70, a retired construction worker exonerated by a federal appeals court in 1984 of persecuting Jews in his native Latvia. Sprogis was not hurt, but a passer-by, who apparently was attracted by a fire set in Sprogis' car as a lure, was seriously injured.|
Shortly after the explosion, the Long Island newspaper Newsday received a telephone call in which an apparently recorded voice reportedly said: "Listen carefully. Jewish Defense League. Nazi war criminal. Bomb. Never again."
The FBI has since warned defense attorneys involved in war crimes cases to be alert to the possibility of further violence and to urge their clients to take precautions against reprisals. (Gillette, Los Angeles Times, Apr 28/86, p. 6)
cc: Neal Sher