Soviet Union and Eastern Europe, in Western Europe, Israel and the United States.
The acts of which the defendant is accused took place more than 40 years ago. Some witnesses have died, others are scattered throughout the world, many in places where a defendant's investigators, if he could afford them, would be unable to travel to question people freely. Pertinent records and documents likewise are scattered, some being located in places inaccessible to a defendant.
Only a person of great wealth could command the services of attorneys, investigators, translators and expert witnesses and assemble the other resources needed to meet properly the government's wide ranging proofs. Most of the defendants in these cases appear to be persons of modest means with only limited assistance available to them from interested groups or individuals.
Further, these cases inevitably are conducted in a highly charged emotional atmosphere generated by the unspeakable events out of which the charges arise. Thus there are few, if any, attorneys willing to take on representation on a pro bono basis and few, if any, individuals or private organizations which would be willing to contribute to pay the enormous costs of litigation.
The attorney's fee provisions of 28 U.S.C. Section 2412(b) do little to ameliorate the situation. The likelihood of a defendant both prevailing on the merits and defeating the government's proofs that its position was substantially justified is so slight that the statute provides small inducement to prospective defense attorneys.
The great disparity between defense and government resources, the enormous expenses involved in testing or meeting the government's proofs, the very limited resources of the typical defendant and the fearful consequences which attend the government's success create the potential for injustice to which I refer. It would be terrible to contemplate even one defendant wrongly losing his citizenship and being deported and tried in a foreign jurisdiction for lack of adequate legal and investigative resources.
Due process questions may be implicated. If so, they were not raised in this case. I refer to the point since this case so graphically illustrates it.
The government's attorneys are requested to submit a form of order denying defendant's application under Federal Rule of Civil Procedure 37(d) and under 28 U.S.C. Section 2412(d)(1)(A).
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