For Ryan, Questions Remain

For University Attorney Allan A. Ryan Jr. and many of his former Justice Department colleagues, now is a time to wait anxiously.

On Friday in Los Angeles, Tennessee judge Thomas A. Wiseman completed hearings on charges that Ryan and others suppressed evidence in the prosecution of Cleveland auto worker John Demjanjuk as Nazi death camp guard Ivan the Terrible.

Over the next few months, Wisemah will prepare a report for the U.S. Sixth Circuit Court of Appeals. Until then, however, a number of questions remain about the future of both the case and Ryan.

Ryan, director of the Justice Department's Office of Special Investigations (OSI) from 1980 to 1983, is being investigated by Wiseman for his conduct during the denaturalization and extradition trials of Demjanjuk, who now sits on death row in Israel.

Wiseman is also inquiring into the conduct of five other Justice lawyers. He heard testimony from Bruce Einhorn, a California immigration judge, on Friday.

Einhorn, OSI prosecutor during Demjanjuk's deportation trial, denied suppressing any evidence. He said he knew nothing of Soviet records released in 1991 that indicate another man, Ivan Marchenko, was in fact Ivan the Terrible.

Demjanjuk's attorneys have been using the Soviet records, which contain statements of Nazi guards from the Treblinka death camp, in an effort to prove misconduct by OSI and reverse Demjanjuk's denaturalization and extradition. Wiseman will hear closing arguments from the attorneys for Demjanjuk and the government in Nashville in April.

The judge will then make a report to the Sixth Circuit Court of Appeals in Ohio. But what action the circuit will take--and has the authority to take--is open to question.

Many observers have speculated the Sixth Circuit will reopen Demjanjuk's denaturalization and extradition proceedings. However, Justice Department officials last summer contended the federal appeals court lacked authority to reconsider Demjanjuk's 1986 extradition.

And last June, Robert Mueller, head of the Justice Department's criminal division, said the department's Office of Professional Responsibility was reviewing the Justice Department's handling of the Demjanjuk case. But an official from that office, speaking on condition of anonymity, said in an interview last month that his office could not discipline people who no longer work for the government.

It could take years before this and other matters of jurisdiction are worked out in court. But in the near future, Ryan, who joined Harvard's Office of the General Counsel in 1985, is more worried about what Wiseman and the federal appeals court could do to his professional reputation.

Some lawyers who have followed the case see the Sixth Circuit inquiry as a political attempt by Pat Buchanan and others to get Nazi hunters like Ryan.

"These are not civil libertarians who try to criticize the government for its over zealousness, but people who consider Demjanjuk a hero," says Professor of Law Alan M. Dershowitz. "To single out Allan Ryan, who is one of the most decent, honorable men I've worked with, is just outrageous."

Experts in legal ethics believe the federal appeals court would have to find that Ryan personally withheld evidence in the Demjanjuk case before the Harvard attorney could be disciplined. And Ryan denied suppressing evidence under oath in a hearing before Wiseman last month in Boston.

Any finding for or against Ryan would rest largely on the court's interpretation of a murky issue--what constitutes suppression of evidence.

Matter of Definitions

In any criminal or civil case, attorneys ask the opposition for information in a process commonly called "discovery."

What evidence is "discoverable" depends on the nature of the proceeding. In a criminal case, the government has a duty to a disclose all evidence that could exonerate the defendant, whether the other side asks for it or not.

However, Demjanjuk was not prosecuted as a criminal. His "trials" were denaturalization and extradition proceedings, which are considered civil rather than criminal.

"A denaturalization and extradition are deemed to be civil and not criminal [cases]," says Georgetown University Law School professor Sherman Lewis Cohn. "There are some people who argue that taking away a person's citizenship is close to criminal."

In a civil case, attorneys are required only to produce documents requested by the other side. Even evidence that is exculpatory need not be turned over if it is not requested.

However, Ryan says his personal policy has always been to hand over all exculpatory evidence, whether requested or not. He testified under oath last month he does not remember how or if he communicated that policy to his team of prosecutors on the case.

In any event, not complying with discovery requests is attorney misconduct. But bar associations and judges generally have been reluctant to punish lawyers unless their lack of compliance was intentional.

"The question is whether this is done knowingly--you may have a thorough search and not find anything exculpatory," says Cohn. "Certainly, if Mr. Ryan were involved in not carrying out discovery orders, he ought to be disciplined."

It is not clear, however, whether prosecutorial misconduct is enough to invalidate an entire prosecution. Over the years, the Supreme Court has generally left that decision in the hands of the judge.

Equally unclear is how Harvard might react to any ruling against Ryan, the University's most visible litigator.

In an interview shortly after she took office in November, General Counsel Margaret H. Marshall, Ryan's boss, said she was unfamiliar with Wiseman's investigation. She called a sanction of Ryan on the grounds of prosecutorial misconduct "such a hypothetical outcome that it would be irresponsible for me to comment."

Even as Ryan returned to his Holyoke Center office and Einhorn testified last week, a new wrinkle was added to the case.

Rep. James A. Traficant Jr. (D-Ohio), a longtime Demjanjuk supporter, said the real Ivan the Terrible was still alive in Eastern Europe and will soon be found. Traficant, who at one time admitted taking Mafia bribes as a county sheriff, offered no evidence for this claim.

Those involved in the case merely shrugged. It is only the latest allegation in a proceeding that only seems to grow more confusing--and to raise more questions.

Jim Newton of the Los Angeles Times contributed to this report.

Some lawyers who have followed the case see the Sixth Circuit inquiry as a political attempt by Pat Buchanan and others to get Nazi hunters like Ryan.

"These are not civil libertarians who try to criticize the government for its over zealousness, but people who consider Demjanjuk a hero," says Professor of Law Alan M. Dershowitz. "To single out Allan Ryan, who is one of the most decent, honorable men I've worked with, is just outrageous."

Experts in legal ethics believe the federal appeals court would have to find that Ryan personally withheld evidence in the Demjanjuk case before the Harvard attorney could be disciplined. And Ryan denied suppressing evidence under oath in a hearing before Wiseman last month in Boston.

Any finding for or against Ryan would rest largely on the court's interpretation of a murky issue--what constitutes suppression of evidence.

Matter of Definitions

In any criminal or civil case, attorneys ask the opposition for information in a process commonly called "discovery."

What evidence is "discoverable" depends on the nature of the proceeding. In a criminal case, the government has a duty to a disclose all evidence that could exonerate the defendant, whether the other side asks for it or not.

However, Demjanjuk was not prosecuted as a criminal. His "trials" were denaturalization and extradition proceedings, which are considered civil rather than criminal.

"A denaturalization and extradition are deemed to be civil and not criminal [cases]," says Georgetown University Law School professor Sherman Lewis Cohn. "There are some people who argue that taking away a person's citizenship is close to criminal."

In a civil case, attorneys are required only to produce documents requested by the other side. Even evidence that is exculpatory need not be turned over if it is not requested.

However, Ryan says his personal policy has always been to hand over all exculpatory evidence, whether requested or not. He testified under oath last month he does not remember how or if he communicated that policy to his team of prosecutors on the case.

In any event, not complying with discovery requests is attorney misconduct. But bar associations and judges generally have been reluctant to punish lawyers unless their lack of compliance was intentional.

"The question is whether this is done knowingly--you may have a thorough search and not find anything exculpatory," says Cohn. "Certainly, if Mr. Ryan were involved in not carrying out discovery orders, he ought to be disciplined."

It is not clear, however, whether prosecutorial misconduct is enough to invalidate an entire prosecution. Over the years, the Supreme Court has generally left that decision in the hands of the judge.

Equally unclear is how Harvard might react to any ruling against Ryan, the University's most visible litigator.

In an interview shortly after she took office in November, General Counsel Margaret H. Marshall, Ryan's boss, said she was unfamiliar with Wiseman's investigation. She called a sanction of Ryan on the grounds of prosecutorial misconduct "such a hypothetical outcome that it would be irresponsible for me to comment."

Even as Ryan returned to his Holyoke Center office and Einhorn testified last week, a new wrinkle was added to the case.

Rep. James A. Traficant Jr. (D-Ohio), a longtime Demjanjuk supporter, said the real Ivan the Terrible was still alive in Eastern Europe and will soon be found. Traficant, who at one time admitted taking Mafia bribes as a county sheriff, offered no evidence for this claim.

Those involved in the case merely shrugged. It is only the latest allegation in a proceeding that only seems to grow more confusing--and to raise more questions.

Jim Newton of the Los Angeles Times contributed to this report.