Therapeutic Nazi hunting, part three

You can read Part One and Part Two of the series at the links.

I was critical of the Associated Press reporting of the allegations against Michael Karkoc when stories were published last summer. Karkoc, a 94 year-old retired carpenter living in Minneapolis, emigrated to the US from his native Ukraine after the Second World War. The stories were pretty sensationalized, intimating — effectively saying, as a matter of fact — that Mr. Karkoc was a Nazi and had participated in war crimes in Poland. This is the complete Wordle of one of the stories by the AP:

There was a tiny sentence in the story:

Although the AP reported it had not found evidence that Karkoc took a direct hand in war crimes [emphasis added], it said he had apparently [emphasis added] been present during several atrocities, including the vicious suppression of Polish nationalists by the Germans in the 1944 Warsaw uprising.

Where’s the Witness?

One of the missing ingredients in making a legal case against Mr. Karkoc, as described above, was a witness. Without one, it’s a cheese omelette without the cheese, or the eggs, for that matter.

But we don’t want to let that get in a the way of a sensational story! I’ve needled the AP about the lack of a witness since the story came out.

Well, good news: five months after the story was first published, the AP found one.

Of course, he’s been dead almost thirty years.

Such a witness cannot be confronted and cross-examined about his observation (first hand knowledge) or lack of it, his recollection, coercion he may have been under, or incentives he was given, or anything else that might make him an unreliable or biased witness.

These are not trivial matters; Professor John Henry Wigmore, the author of a famous treatise on evidence, wrote that cross examination was:

[the] greatest legal engine ever invented for the discovery of truth

Even better than the AP. Probably a lot better.

Why be suspicious of a dead private’s statement?

You would think, based on the latest AP story that uses the word “testify” liberally, that the individual involved, Pvt. Ivan Sharko, testified in open court, subject to cross examination, by somebody, anyway, but that wasn’t the case by a long shot. From the AP’s own story:

[  ] The investigation found that Karkoc was in the area of the massacres, but did not uncover evidence linking him directly to atrocities.

However, a newly unearthed investigative file originally from the Ukrainian intelligence agency’s archive [emphasis added] reveals that a private under Karkoc’s command testified [emphasis added] in 1968 that Karkoc ordered the assault on Chlaniow in retaliation for the slaying of an SS major. The major, slain by resistance fighters, led the Ukrainian Self Defense Legion, in which Karkoc was a company commander.

A 1968 Ukrainian intelligence agency report. That’s worth repeating: a 1968 Ukrainian intelligence agency report.

I’m suspicious already. But some people aren’t, including a now-law professor in New York who was in the unit that fingered John Demjanjuk as Ivan the Terrible when he wasn’t:

Stephen Paskey, who led Nazi investigations for nine years as a prosecutor at the U.S. Department of Justice’s Office of Special Investigations, said the Sharko testimony is highly credible and should bolster cases in Germany and Poland to launch prosecutions against Karkoc. He noted that Sharko did not appear to be in custody or under investigation [emphasis added] at the time of his questioning, and that many of his statements are confirmed by historical documents.

“I see no reason to doubt that is what (Sharko) said and that it was said without any pressure,” said Paskey, now a law professor at the SUNY Buffalo Law School. “And that’s exactly the sort of thing that would help persuade a judge that it’s credible — that there’s other evidence to corroborate the other things that he said. … There’s no indication in the Soviet statement that the guy they were interviewing had a motive to lie.”

Poor Professor Paskey is an incredible [in the original sense of the word] ingénue. For the future of lawyers in New York, let us hope he doesn’t teach evidence. Professor Wigmore is spinning in his grave.

But even Paskey used the word “questioning,” not “testifying.”

There is a yawning chasm between the two words.

Remember that, according to the AP story, the private had admitted to taking part in the attack on the village. Paskey doesn’t think that an admitted war criminal was coerced or “incentivized” by a Soviet-era intelligence agency to embroider his story to try to minimize his own participation? The article does not refer to any punishment of Sharko; maybe he was successful.

Paskey’s remarks beggar belief. He has a bad case of Crusader’s Myopia.

There are many things to question about Sharko’s statement. It is hearsay, an out-of-court statement that is offered for the truth of what is said. Legitimate questions on cross examination would certainly include:

• Did you hear “Wolf” utter an order, or are you repeating what someone told you (hearsay upon hearsay)? What was said, word for word, as best you can recall?
• Where were you when you heard this order, if you did? Who else was with you? Under what circumstances was the order given?
• When you were attacking the village, did you see “Wolf” there?
• Did you personally burn any buildings or kill non-combatants?
• What incentives were you given for your statement? You have never been incarcerated for your role, have you?

Well, you get the idea. This ought to remind you of the Guantanamo detainees who were dropped off by the Northern Alliance for the reward and can no longer be found.

The FBI thought John Demjanjuk was framed

But I’ve saved the most amazing part for last.

An AP reporter named David Rising wrote the recent story about Michael Karkoc. Rising wrote another story in 2011 that bore the hed: FBI thought Soviet Union’s John Demjanjuk evidence was faked:

“Justice is ill-served in the prosecution of an American citizen on evidence which is not only normally inadmissible in a court of law, but based on evidence and allegations quite likely fabricated by the KGB,” the FBI’s Cleveland field office said in the 1985 report, four years after the Soviets had shown U.S. investigators the [identification] card.

As the story relates, the FBI believed that Demjanjuk was framed as Ivan the Terrible by the KGB. (And we know he wasn’t Ivan the Terrible.) Here’s more:

The March 4, 1985, report, on FBI letterhead and marked “SECRET,” says the Cleveland office’s investigation “strongly indicated” a Soviet scheme to discredit “prominent emigre dissidents speaking out publicly and/or leading emigre groups in opposition to the Soviet leadership in the USSR.”

And then there is this damning information:

The FBI report was among more than 8 million pages of records by federal agencies that were transferred to the National Archives in 1998 under the Nazi War Crimes Disclosure Act. However, the field office report was excluded from public view by the OSI [Paskey’s outfit], which was exempted to protect ongoing investigations and prosecutions. The AP learned late last year that partially redacted Demjanjuk files had been opened up, and recently reviewed them.

In simple English, the OSI withheld exculpatory information from defense lawyers. And it just keeps getting better:

A Department of Justice report from 2008 made public last November said the OSI’s handling of the Demjanjuk case was “the greatest mistake it ever made.”

And you can see why:

The FBI report accuses the Soviets of anonymously feeding names of emigres to the United States as suspected Nazis. The OSI would then ask the Soviet Union for evidence from captured Nazi records, and “the KGB produces a record purporting to tie the accused with the commission of Nazi atrocities.”

John Demjanjuk was not the first person to be framed by the Soviets, and perhaps he was not the last:

“In court, the KGB officer thereupon ’shows’ the documents to the judge but does not permit the documents to be presented in evidence or to be otherwise copied,” it adds.

By the time the field report was sent to FBI headquarters in Washington, Demjanjuk had already had his citizenship revoked and was facing extradition to Israel.

The AP story discusses in some detail the methods that were used by the Soviets to smear emigres.

The INS lawyer who brought the case for the revocation of Demjanjuk’s citizenship said in a telephone interview, reported in the story, Gee I wish I known about this report.

I would call David Rising and the AP’s reporting about Michael Karkoc merely “shoddy.” However, without any reference to Soviet disinformation tactics, as already described by David Rising himself, it’s seems like a knowing smear.