Soviet evidence violates US rules in Nazi case. Judge and defense attorneys cite constitutional protections

The Smilga massacre took place 44 years ago and half a world away in an area that is now part of the Soviet Union. For accused Nazi collaborator Juozas Kungys -- a 70-year-old retired dental technician in New Jersey -- the future hangs on each tiny detail stored in the fading memories of associates he has not seen for decades and some he perhaps never knew by name.

Even worse, from his point of view: The only associates to testify in his United States trial live on the wrong side of the iron curtain.

Mr. Kungys's case, currently pending in a federal appeals court in New Jersey, has become a rallying point for anti-Soviet 'emigr'es in America. The Soviet Union is providing key evidence to the US Justice Department's Office of Special Investigations (OSI) in helping track down alleged Nazi collaborators living in the US. Critics of this cooperation claim the Soviets influence or falsify testimony against 'emigr'es, such as Mr. Kungys.

US officials counter that the Soviets have no reason to single out individuals for elaborate disinformation schemes. They maintain that to date there has been no indication that evidence submitted by the Soviets in Nazi collaborator cases has been falsified.

According to the trial record, it happened in August 1941, in a wooded area near the Smilga River outside Kedainiai in Nazi-occupied Lithuania. The Germans gave the orders.

``We were told to surround the place there where the shooting was to take place and not to let strangers go near it,'' recalled Jonas Dailide who, with Kungys, was a member of a Lithuanian reserve unit pressed into service when the Nazis invaded Lithuania.

The Jewish residents from Kedainiai and the surrounding region had already been moved by German soldiers into large barns at a horse farm several kilometers from town. Starting at about 10 a.m. they were taken -- men, women, and children -- to a long, narrow pit near the Smilga. There were 2,000 of them.

``I could see it, not very clearly but I could see it,'' recounted Mr. Dailide. He was carrying a rifle and was positioned some 70 meters from the pit. Dailide was 34 years old at the time. Kungys, armed with a pistol from the state bank where he worked, was 26.

``Near the pit the people were ordered to undress. Then they were ordered to move to the edge of the pit and the shooting started,'' said Juozas Kriunas, 24 at the time, and also a member of the Lithuanian reserves.

Mr. Kriunas, who spent 10 years in a Soviet work camp for his part in the massacre, added: ``Everybody was shooting. The people I have mentioned, and the German soldiers.''

He was asked: Did you shoot? ``Yes,'' he answered.

Did Mr. Kungys shoot? ``Yes.''

The Kungys case hinges on the need to establish that he participated willingly in the massacre. It has already been established that he was present at the massacre and was armed with a pistol. But was he a Nazi collaborator? This case illustrates the complexity of the job facing OSI prosecutors.

In the early 1940s, the small nation-states of northern and eastern Europe were caught in the deadly cross tides of Stalin's purges and Hitler's genocide. Positioning for power and struggling to survive in these states were an array of pro-Russians, pro-Germans, nationalists, anti-Semites, and a large group of innocent bystanders. Many of these individuals were pressed into service by the Nazis. Some went willingly. Others were forced under the threat of death to participate in Hitler's mass murder of t he Jewish population. Likewise, there were executions of communist organizers and suspected Russian agents.

The OSI's job today is to sort out who within this tangle of motives and alibis were the Nazi war criminals and collaborators? US investigators look to the Soviets for missing details that will enable the OSI to determine who should be deported and who should be left alone.

But 'emigr'es from iron-curtain countries argue that to trust the Soviets is to stack the legal deck against 'emigr'es who opposed the Red Army and communism.

In the Kungys case, US prosecutors seeking to deport him as a Nazi collaborator asked the Soviet government to find witnesses who could provide details about Kungys's role in the massacre at Smilga.

Dailide and Kriunas were among several Soviet citizens Moscow located. Their comments, quoted above, came from hours of videotaped testimony given in a 1982 hearing in Lithuania.

Under the Soviet-US agreement, Soviet citizens may be questioned by US lawyers but only at special hearings presided over by a Soviet government official. Because the Soviets are concerned about possible defections, witnesses are not permitted to travel to the US to give testimony, nor are they permitted to testify alone at the US embassy.

American defense attorneys have objected that witnesses may be less than truthful under such circumstances.

'Emigr'es argue that just as Soviet-bloc immigrants in the US are reluctant to testify for the defense in OSI cases, for fear the OSI will turn its sights on them, Soviet witnesses are afraid to aid a person the Soviet government considers a traitor against the motherland.

OSI officials counter that even if there are imperfections in the process the entire system is ultimately under the control and review of the US federal judges who decide each case. OSI spokesmen say the judges are more than qualified, to determine when a witness is being evasive or lying, or when a US defendant's rights are being abused.

In 1983, US District Court Judge Dickinson Debevoise refused to consider the videotaped testimony of Kriunas, Dailide, and other Soviet witnesses in the Kungys case. In throwing out the charges that Kungys had been a Nazi collaborator, Judge Debevoise said, ``It is impossible to provide the usual safeguards of trustworthiness of evidence having its source in the Soviet Union. The Soviet criminal and judicial system is structured to tailor evidence and produce results which will further the important pol itical ends of the Soviet state at the expense, if need be, of justice. . . .''

In its brief to the Third Circuit Court of Appeals, OSI attorneys argue that Judge Debevoise acted out of ``political bias'' and with ``unfounded speculation about undue Soviet influence on Lithuanian witnesses.'' The brief adds, ``While the Soviet Union may act with impunity in legal proceedings confined to its own borders, it cannot do so in cases under the scrutiny of foreign judges, lawyers, and witnesses.'' -- 30 --