The Defense of a Prosecutor

For the past year, The Crimson has carried a number of stories detailing the charges made by John Demjanjuk against the Office of Special Investigation (OSI) in the U.S. Department of Justice. Demjanjuk alleged that from 1980 to 1983, when I was Director of OSI, evidence relating to Demjanjuk's prosecution as a Nazi death camp guard was suppressed or mishandled.

When the charges were reported, I felt constrained in what I could say publicly because the matter was being investigated by a federal judge. I would now like the Harvard community in which I practice law to have my side of the story. I am grateful to The Crimson for allowing me the opportunity to respond in this way.

Last June, after a nearly year-long investigation that included the testimony of the attorneys involved and the review of thousands of pages of documents, the investigating judge issued a 211-page report recommending that the matter be closed without further action. While critical in some respects of the "hardball" way in which the investigation and the 1981 trial had been conducted, he nonetheless concluded that all attorneys involved, myself included, had acted honestly, ethically, and in good faith, never once knowingly concealing or misrepresenting any fact that we had a duty to disclose. He concluded that "this case is more about imperfection than perfidy to justice," and that all OSI attorneys on the Demjanjuk case "are now, and were then, principled, albeit fallible."

Although I did not agree with every point in his detailed report, I accepted the judge's verdict as having been reached conscientiously and impartially. I was relieved that he recognized that I and the attorneys who worked under my supervision, whatever our human fallibility, had been truthful, honest, and ethical in our dealings with Demjanjuk's attorneys and with the court that had conducted his trial in 1981.

I had hoped that this definitive report would be the end of the matter. Unfortunately, it was not. A three-judge panel of a court of appeals reviewed the report and on November 17 it ordered Demjanjuk's extradition to Israel set aside on grounds of prosecutorial misconduct. I was shocked and saddened by this decision, for several reasons.

First, the court of appeals did not dispute--and in fact accepted--the investigating judge's finding that the prosecuting attorneys had acted honestly and in good faith. It stated that it "accept[s] as true that no OSI attorney deliberately withheld from Demjanjuk or the court information that he believed he had a duty to disclose..." Nonetheless, the court ruled, for the first time in U.S. history as far as I am aware, that "misconduct" can also consist of the honest failure to appreciate the significance of information. Thus, the failure to disclose to Demjanjuk's attorneys certain details that at the time seemed neither relevant nor exculpatory became, in the court of appeals' view, "misconduct" sufficient to set aside the extradition. I believe that the investigating judge was correct when he characterized these instances as the product of honest judgment and not misbehavior.

Second, the three appellate judges, as they deliberated the significance of my actions and those of my colleagues, ignored my request to submit a brief explaining those actions and defending the verdict of no misconduct. In so doing, the three judges on the appeals panel limited my participation in the proceeding to the testimony I had given before investigating judge, and barred me from presenting my views on the judge's report to them. I believe this is fundamentally unfair.

Third, the appeals panel strongly implied that I had compromised my integrity to "please" Jewish "interest groups." It based this astonishing conclusion on the fact that I had once written a memo to my superior noting that the Justice Department could not take for granted "the support in Congress, Jewish community organizations, [and the] public at large" for the work of OSI, and on the fact that in 1986 I had visited Israel on a lecture tour sponsored by the Anti-Defamation League. Nowhere in its opinion did the appeals court disclose that I had left the government and returned to the private practice of law in 1983, three years before the Anti-Defamation League invited me to Israel.

When the decision was announced on November 17, I issued a brief statement that I was saddened by it and that as Director of OSI I accepted responsibility for the judges' criticism. That I do. For these reasons, however, and for other reasons that would take too much space to explain fully here, I believe the conclusion was inaccurate and unfair, and that it cannot be reconciled with the evidence and the investigating judge's conclusions. Any attorney who is privileged to serve as a federal prosecutor, as I was, must uphold the highest standards of integrity and the commitment to justice under law. I and every one of my colleagues endeavored to do so at every step.

It is possible that the full appeals court of 16 judges will review the decision handed down by the three-judge panel. I hope that it will, and that it will correct this painful and wholly unwarranted result. Whatever might happen, I am deeply grateful for the encouragement and support I have received throughout this process from the Harvard community.