(2) Who were your co-conspirators
in the plan to sabotage the Demjanjuk defense?
Of course it is no longer capable of being doubted that the SLU under your direction, and the Office of Special Investigations (OSI) both under your direction and afterward, withheld exculpatory evidence from the Demjanjuk defense. What you seem to be confessing to below, however, is wrongdoing that goes beyond this. You appear to be confessing to an attempt to actually sabotage the Demjanjuk defense.
Specifically, you attempted to befriend the Demjanjuk defense, and to make the defense trust you to obtain evidence for it from foreign sources, mainly Soviet and Polish, and you did this knowing that this evidence was already in your possession, and knowing as well that foreign governments would understand not to provide a second time (this time for the defense) the evidence it had already provided earlier (for you, the prosecution).
The coup that you struggled to pull off for the Israelis, then, went beyond merely hiding exculpatory evidence � it aspired to getting the defense to rely solely upon you for its foreign-evidence acquisition, and thus aspired to getting the defense to neglect other avenues that had some chance of bearing fruit. There would sit the Demjanjuk defense team, you hoped, patiently trusting friendly old you � and you alone � to get them the evidence that � no fault of yours � never seemed to arrive, not month after month, not year after year, not as John Demjanjuk mounted the scaffold to be hanged.
However, one can see your plan miscarrying immediately � right from the start the defense began including in its requests whatever evidence was already in your possession. How, then, in your testimony before Special Master Wiseman did you attempt to justify having withheld evidence that was already in your possession? You employed two stratagems: (1) you sometimes wilfully misinterpreted a defense request as needing only to be passed to a foreign source, which you argued excused you from supplying the material from your own collection; and (2) you claimed that the sought-for material was irrelevant or inconclusive or of poor quality, and for such reasons could not have helped the defense if disclosed � a conclusion which was false.
If a list of Treblinka guards does not contain the name of John Demjanjuk, then that is exculpatory. If the Main Commission for Investigating Nazi War Crimes in Poland has never come across any mention of John Demjanjuk, then that is exculpatory because the prosecution painted John Demjanjuk as the most heinous war criminal of WW II. If the camp commandant of Treblinka, Kurt Franz himself, cannot recall a Ukrainian under his command who murdered hundreds of thousands of prisoners, and whom Franz allowed to spend his day hacking off the prisoners' breasts and ears and noses, then that would be highly exculpatory, and should not be kept from the defense. If SS Treblinka guard Franz Suchomel cannot recall any such Ukrainian either, then that would be highly exculpatory, and should not be kept from the defense. If Richard Glazar of Switzerland is writing a book on his recollections of Treblinka in which he fails to substantiate any of the prosecution stories, then that should not be kept from the defense. If an Israeli claiming to be a Treblinka survivor identifies the living John Demjanjuk as being Ivan the Terrible of Treblinka, then it must not be suppressed that this same putative Treblinka survivor had signed a statement in 1945 that he had seen Ivan the Terrible killed in a prisoner uprising. If SS guard Otto Horn fails to identify John Demjanjuk until strong hints are given, and changes his story from Ivan never hurt anyone to Ivan tortured and murdered hundreds of thousands of prisoners, then the reports which depict Otto Horn's malleability must not be first concealed and later destroyed. If Soviet witnesses place John Demjanjuk at locations other than Treblinka, then that gives John Demjanjuk an alibi, and so must not be suppressed.
In any case, the decision that all this evidence was irrelevant was not yours to make, but the court's.
The picture that your own testimony before Special Master Wiseman seems to be painting � unless you can explain how it should be interpreted otherwise � is that you were willing to send an innocent man to the gallows for no greater gain than the advancement of your career. You placed career advancement above your pledge to uphold justice. You placed career advancement above your obligation to protect the State of Israel and the Jewish people from shedding innocent blood. Just read how self-incriminating are your own words:
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MAREK: At that time [04-Jun-1979] you had been advised that the defense had been seeking documents from Russia through the State Department unseccesfully [sic] for more than a year?
MENDELSOHN: That's right.
MAREK: So, you understood that the defense was not able to use the Federal Rules of Civil Procedure with regard to freely obtaining information from the Soviet Union, is that correct?
MENDELSOHN: That's right.
MAREK: And in light of that, you as director of SLU offered to assist, to help the defense get information from the Soviets, is that right?
MENDELSOHN: Well, I think so, yes.
MAREK: Well, [...]
113
[...] you said you were going to help the defense get material from the Soviet Union?
MENDELSOHN: Right.
[...]
MAREK: He [Demjanjuk defense attorney Martin] also asked for any other documents or correspondence received from or given to any foreign government concerning Mr. Demjanjuk, is that correct?
MENDELSOHN: Right.
114
[...]
MAREK: But then, Mr. Mendelsohn, [...] [o]n November 8, 1979 he [Demjanjuk defense attorney Martin] [...] says help me?
MENDELSOHN: Right.
MAREK: Help me get material from the Soviet Union, is that right?
MENDELSOHN: Yes, five months later.
[...]
115
[...]
MAREK: He says that that letter is the second request to the State Department for information, is that correct?
MENDELSOHN: Right.
MAREK: So that he is appealing to you for information from the Soviet Union.
Is that a fair comment?
MENDELSOHN: No, it's not a fair statement. This letter � what he wanted was for us to get help from the Soviets, which we did, because I sent a copy of all this to the State Department on November 19.
I told them to ask the Soviets for all the help that the Soviets could give Martin. But what this letter talks about and what he was concerned about was information from the Department of State over which I had no control.
MAREK: But he wanted the Department of State to ask the Soviets, is that right?
MENDELSOHN: Right. That is what I was able to do for him.
MAREK: When he got nowhere with the State Department he went to you?
MENDELSOHN: Right.
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MAREK: He knew you had a pipeline with the Soviets, is that right?
MENDELSOHN: I had the ability to have the State Department to send the cable, right.
MAREK: You had the ability to have the Soviets respond?
MENDELSOHN: Through the State Department, right.
MAREK: He appealed to you to help him get information from the Soviets?
MENDELSOHN: Right.
MAREK: That included all correspondence received or given to you through the Soviets.
Isn't that what he asked for?
MENDELSOHN: I believe so, yes.
[...]
MAREK: [...] He asks, has any foreign government
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conducted an investigation or filed a report regarding the acts allegedly committed by the defendant at Treblinka, is that correct?
MENDELSOHN: Uh-huh.
MAREK: So he is asking for materials you received from foreign governments regarding the allegations against his client as being Ivan the Terrible, right?
MENDELSOHN: Right.
[...]
MAREK: But he is asking for materials that you received from or the State Department received concerning Demjanjuk from foreign governments, is that right?
MENDELSOHN: Right.
[...]
MAREK: Now, after you got that letter [from Demjanjuk defense attorney Martin], [...] you sent a copy of the letter to the State Department, is that correct?
MENDELSOHN: Uh-huh.
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MAREK: You asked them to provide assistance?
MENDELSOHN: Right.
MAREK: You said George Parker of my staff can give you more information.
Is that right?
MENDELSOHN: Right.
MAREK: At the time you had in your possession, in OSI's possession at this time information from the Soviets, is that right?
MENDELSOHN: Yes.
MAREK: You had the 1978 Fedorenko protocols?
MENDELSOHN: Fedorenko's, that is right.
MAREK: Why didn't you simply give those to Mr. Martin then?
MENDELSOHN: That is not what he asked for, first of all.
Secondly, if [OSI trial attorney] George [Parker] felt they were relevant, I am sure he would have given them to him.
MAREK: Why didn't you give him the Main Commission [Investigating Nazi Crimes in Poland] material then?
MENDELSOHN: The Main Commission? That single page that says nothing?
Where is it and let's talk about it.
MAREK: Doctor �
MENDELSOHN: Pilichowski.
MAREK: [...] That is a letter to you from Dr.
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Pilichowski?
MENDELSOHN: Right. It says we do not have any data.
MAREK: On Mr. Demjanjuk, is that right?
MENDELSOHN: Right.
MAREK: That is a report from a foreign government, isn't it?
MENDELSOHN: That's right.
MAREK: And wasn't that fairly called for by interrogatory � second set of interrogatories we looked at that would be number 10, tab 10, question 1?
MENDELSOHN: Question reads, has any foreign government or agency conducted an investigation and filed a report regarding the acts allegedly committed by the defendant at Treblinka.
What Pilichowski's letter says, we do not have any data concerning Ivan Demjanjuk.
That is not an investigation. That is a non-investigation.
MAREK: Well, you mean non-investigation in the sense that it did not implicate Demjanjuk?
MENDELSOHN: I don't know what it means. But it certainly is not an investigation.
MAREK: Well, if you look at tab 113.
That is a letter from you to Dr. Pilichowski asking for a lot of information on Demjanjuk,
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is that right?
MENDELSOHN: Right. [...].
[...]
MAREK: That is your letter to Dr. Pilichowski, correct?
MENDELSOHN: Right.
MAREK: You asked him for a lot of information regarding Mr. Demjanjuk, is that right?
MENDELSOHN: Well, I asked him for any information that he has.
MAREK: Yes. You asked him to conduct an investigation in effect?
MENDELSOHN: No, that is not what it said.
MAREK: You asked for information?
MENDELSOHN: I asked for information.
MAREK: And then if you look at tab 120.
That is another letter by you to Dr. Pilichowski?
MENDELSOHN: Right.
MAREK: A follow-up to your first letter?
MENDELSOHN: Right.
MAREK: Asking for information on Mr. Demjanjuk?
MENDELSOHN: Right.
121
MAREK: Witnesses in Poland; you wanted to know about the two camps Treblinka, generally; Trawniki witnesses in Poland to the events at Treblinka and Trawniki � particularly any witnesses having information about the three individuals above, including Mr. Demjanjuk, is that right?
MENDELSOHN: Right.
MAREK: You asked him to conduct a search, isn't that fair to say?
MENDELSOHN: I asked him to send us whatever he has.
MAREK: But you asked him to ask other people about what information he had on Demjanjuk, is that right?
MENDELSOHN: Right.
MAREK: And then he writes you back at tab 14 and says we have nothing?
MENDELSOHN: That's right.
MAREK: And you construe [Demjanjuk attorney's] question one as not fairly asking for that information?
MENDELSOHN: It probably � you are right within the broadest interpretations it could include it but it doesn't go one way or another.
MAREK: But your view of the application of the Federal Rules of Civil Procedure was ask the specific question and you will get the information, is that right?
MENDELSOHN: Absolutely.
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JUDGE WISEMAN: Have you ever heard the term stonewalling, Mr. Mendelsohn?
MENDELSOHN: Yes, sir.
JUDGE WISEMAN: You don't consider what you did as stonewalling?
MENDELSOHN: No, sir.
Transcript of Testimony before the Honorable Thomas A. Wiseman, Jr., Volume II, 13-Nov-1992, United States District Court Middle District of Tennessee Nashville Division, Case # 85-3435, pp. 112-122.
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124
MAREK: If you will look at tab two. Tab two is the first request for production of documents filed on November 18, 1977.
That is just a few months after the case is filed, is that right?
MENDELSOHN: Yes.
MAREK: And in it Mr. Martin says that he would like �
125
[...] written or recorded statements of the defendant or potential witnesses or statements taken under oath or without oath by anyone concerning the acts of the defendant as alleged by plaintiff's complaint, is that correct?
MENDELSOHN: Right.
MAREK: He goes on and asks for other things as well, is that correct?
MENDELSOHN: Right.
MAREK: So is it fair to say he is asking for statements of people that have information regarding his client that you have?
MENDELSOHN: Yes.
MAREK: And it's as to that that he files his motion to compel, is that right?
MENDELSOHN: I guess so, yes.
[...]
MAREK: The government is honoring that motion for production, isn't it?
MENDELSOHN: Uh-huh.
MAREK: But the Leleko and Malagon and Danylchenko statements were not supplied as far as you know, is that correct?
126
MENDELSOHN: Yes, sir.
Transcript of Testimony before the Honorable Thomas A. Wiseman, Jr., Volume II, 13-Nov-1992, United States District Court Middle District of Tennessee Nashville Division, Case # 85-3435, pp. 124-126.
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135
MAREK: Calling your attention to tab three which is the first set of interrogatories filed by the defendant, question one: It asks for the name and address of every person known to the government, in effect, who claims to have any knowledge of alleged acts of the defendant
136
alleged in counts one through six of the complaint.
Do you see that?
MENDELSOHN: Yes.
MAREK: Now, the second question, question two asks if anyone is listed in question one asks about whether or not these people gave any statements, is that correct?
MENDELSOHN: Right.
MAREK: If you would go to tab 19.
That purports to be a set of interrogatories answered by you and in question one you have the name of Kurt Franz, correct?
MENDELSOHN: Yes.
MAREK: And tab 21 which is another set of interrogatories answered by you in answer to question one you give the name Franz Suchomel, is that correct?
MENDELSOHN: Correct?
MAREK: Neither of these two individuals implicated Mr. Demjanjuk in any activity alleged in the complaint, is that correct?
MENDELSOHN: I think that is right, yes.
MAREK: So, were you giving answers to interrogatory one of people who did not implicate Mr. Demjanjuk, is that correct?
MENDELSOHN: Yes.
MAREK: And, of course, Mr. Leleko did not implicate Mr.
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Demjanjuk any in his protocol?
MENDELSOHN: That's correct. [...]
[...]
MAREK: Were you there when Kurt Franz was interviewed?
MENDELSOHN: Right.
MAREK: He doesn't identify Demjanjuk?
MENDELSOHN: No.
MAREK: You were told Suchomel doesn't identify him
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either?
MENDELSOHN: I don't remember that.
MAREK: So they exclude Demjanjuk from being at Treblinka.
Well, they don't put him there?
MENDELSOHN: Right.
MAREK: And neither did Leleko put him there?
MENDELSOHN: Right.
MAREK: He named another person as Ivan the Terrible?
MENDELSOHN: That's correct.
MAREK: He excluded Demjanjuk from being at Treblinka, is that fair?
MENDELSOHN: Fair.
Transcript of Testimony before the Honorable Thomas A. Wiseman, Jr., Volume II, 13-Nov-1992, United States District Court Middle District of Tennessee Nashville Division, Case # 85-3435, pp. 135-138.
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My question here is, Who originated the above plan to sabotage the Demjanjuk defense, and who participated in its implementation? An impression that is hard to shake off is that every key member of the prosecution team must have been cognizant of the sabotage plan, and must have participated in it � yourself, obviously, but also key members such as Norman Moscowitz, George Parker, Eli Rosenbaum, Allan Ryan, and Neal Sher.
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