How to Anger a Court: Ignore Its Letters
Aug. 22, 1993
WASHINGTON (AP) _ The Justice Department and the 6th U.S. Circuit Court of Appeals are locked in a battle over the fate of John Demjanjuk, a retired Cleveland autoworker found by two U.S. judges to have worked at Nazi death camps.
The department has been reduced to begging the court in almost daily missives to block a three-judge panel's Aug. 2 order that would allow Demjanjuk - if he is freed by Israel - to return to the United States to help with the appeal of his 1986 extradition.
And the panel, on Friday, refused to reverse that order even though it appeared last week that Demjanjuk's departure from Israel is imminent.
Meanwhile, the Justice Department's request that all 14 of the 6th Circuit's judges review the panel's decision is pending.
The Israeli Supreme Court gave the department a breather Friday by giving Demjanjuk's opponents two weeks to make their case that he should be retried. The Israeli court earlier overturned his April 1988 conviction and death penalty, citing reasonable doubt that he was the Treblinka death camp's notorious ''Ivan the Terrible.''
How have the Justice Department and the 6th Circuit reached this impasse?
Some speculate that it goes back to early 1992. That's when the Justice Department failed to respond to two 6th Circuit letters asking what was behind news stories saying the department had hidden information casting doubt on Demjanjuk's being ''Ivan the Terrible.''
''I think judges are very vain and when they don't get a response to their letters, they get angry,'' said Harvard Law School Professor Alan Dershowitz, who has criticized the handling of the case by Gilbert S. Merritt, the 6th Circuit's chief judge.
But Debra Nagle, the 6th Circuit's public information officer, rejected that scenario.
''That's absurd,'' she said. ''This is not any kind of vendetta.''
Unlike the current Justice Department behavior - showering the court with hurry-up letters - the 6th Circuit did not reveal its anxiety last year. Its first letter, sent Jan. 7, 1992, asked when the division would finish its investigation of allegations that it had suppressed the evidence on Demjanjuk and requested a copy of its findings.
It concluded: ''The court appreciates your immediate attention to this request.''
A follow-up letter sent May 4, 1992, said the court had received no acknowledgment of the first letter, and that although some department officials said by phone that a response was ''in the works, nothing has materialized to date.'' The letter asked when a response could be expected.
On June 3, 1992, still having received no written response, Merritt reopened the extradition case without any request from Demjanjuk's lawyers to do so.
The department and the 6th Circuit used to get along.
Three separate three-judge panels in 1982 and 1985 approved Demjanjuk's denaturalization, deportation and extradition to Israel.
So why didn't the Justice Department respond to the January 1992 letter from court clerk Leonard Green, on behalf of Merritt, to Robert S. Mueller III, the criminal division's chief?
Some at Justice pushed for a response. Others held back.
Then-Attorney General William Barr said Friday that he didn't pay much attention to the case and referred calls to his then-chief of staff Daniel Levin, who, like Mueller, did not respond to a message left at his office.
However, Dershowitz said Justice was right not to have responded because that would have been an improper, out-of-court communication about a case that might be reopened.
He said Merritt also should not have reopened the case without a motion from Demjanjuk's lawyers.
''The essence of being a judge is that you sit and wait,'' Dershowitz said. ''It's a reactive, not a pro-active job. If you want to create problems, become a lawyer.''
Merritt did not respond to a request for comment.