John Demjanjuk v. Joseph Petrovsky
United States Court of Appeals
for the Sixth Circuit (1994)

Thereafter, the panel appointed a Special Master who held hearings, took evidence, and made extensive findings. In a decision of November 17, 1993, the panel rejected the conclusions of the Special Master and held that "prosecutorial misconduct that constituted fraud on the court" had invalidated the District Court's judgment and the panel's earlier judgment in the extradition proceeding. Accordingly, the panel vacated both judgments.

Our first reason for urging the full Court to rehear this case en banc is that the decision of the panel deserves some form of appellate review. It has, to date, received none. This proceeding was initiated by a panel of three Circuit Judges who believed, from information apparently obtained through the media, that they may have been "misled" by "prosecutorial misconduct." The panel has apparently persisted in this belief from the time it issued its order on June 5, 1992, to the current date.

Whether the panel is justified in the belief that led it to initiate this phase of the proceeding and to set aside its own prior decision involves questions of law and fact that should not remain wholly unreviewed. Neither justice nor the appearance of justice is served by such a course.

A parallel that comes to mind is a contempt proceeding for violation of a court order outside the presence of the court. A judge is permitted to initiate a contempt proceeding and to preside over the determination as to whether contempt was committed. 18 U.S.C. S 401; Rule 42(b), Federal. R. Crim. P. But it would be extraordinary indeed if the decision of a judge who finds that his own order has been violated would be the last word - wholly unreviewable by any appellate court. The mere possibility of such an unreviewable judgment would be an invitation to injustice. Indeed, it is established that with respect to the sentence imposed for criminal contempt "[a]ppellate courts have . . . a special responsibility." Green v. United States, 356 U.S. 165, 188 (1958); see United States v. Maragas, 390 F.2d 88 (6th Cir. 1968); United States v. Monteleone, 804 F.2d 1004 (7th Cir. 1986), cert. denied, 480 U.S. 931 (1987). Certificates. Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 16 (1st Cir. 1991); American Airlines, Inc. v. Allied Pilots Ass'n, 968 F.2d 523, 531 (5th Cir. 1982).

In this case, there is no court to exercise review as of right over the panel's decision. To be sure, the Supreme Court has discretionary certiorari jurisdiction under 28 U.S.C. S 1254(1), but it may choose, for a variety of reasons (including the state of its own calendar), to deny discretionary review. The most orderly and efficient form of review for the decision of the panel is, therefore, an en banc session of the Sixth Circuit.

We note, in this regard, that the panel deliberately turned itself into a court of first instance with regard to the issues raised by its order of June 5, 1992. It did not remand the case to the District Court that had originally heard the extradition proceeding for it to render a trial-court judgment on the issues presented, subject to appellate review by a randomly selected panel of this Circuit. Instead, the panel retained jurisdiction and chose a Special Master. It assigned to the Special Master tasks that are ordinarily assigned by District Courts to Special Masters.

Consequently, the decision of the panel should be treated as the decision of a court of first instance. While we acknowledge that there is no absolute constitutional right to an appeal (e.g., McKane v. Durston, 153 U.S. 684 (1894)), appellate review, if generally available, may not be arbitrarily denied. E.g., Evitts v. Lucey, 469 U.S. 387, 393 (1985).

If this Court were to leave the panel's decision unreviewed, the American public (which is represented by the United States) - as well as the Department of Justice attorneys who have been branded as perpetrators of "prosecutorial misconduct" - would effectively be deprived of any review of the determination of the panel. And, what concerns this amicus particularly, the judgment of history concerning the proceedings brought against John Demjanjuk in the United States would, for all times, be left with a wholly unjustified stain.

We therefore urge the full Court to rehear this case en banc so that the judgment that is recorded for all time in the pages of history will be the fully considered judgment of the entire United States Court of Appeals for the Sixth Circuit rather than the unreviewed conclusions of a panel of three Circuit Judges who themselves initiated the proceeding and then retained jurisdiction over it while assigning fact-finding to a Special Master.