Ernst Zündel Replies:
Rebuttal # 61
I can’t fathom myself why the IHR answered this question in this fashion.
For those who are unfamiliar with the whole sordid story, here is what
happened in the Mermelstein case, as later summarized in an IHR article
– long but well worth reading:
Best Witness’: Mel Mermelstein, Auschwitz and the IHR
by Theodore J. O’Keefe
Fourteen years ago, over Labor Day weekend in 1979, the Institute for
Historical Review held its very first conference at Northrop University
in Los Angeles. At that time, the Institute announced its offer of a reward
of 50,000 to the first person to prove that Jews were gassed at Auschwitz.
A little over a year later, in the spring of 1981, Mel Mermelstein,
a southern California businessman and self-described Holocaust survivor,
claimed that reward, and then sued the Institute for 17 million.
On October 9, 1981, in response to a motion by Mermelstein, Judge Thomas
Johnson of the Superior Court of California in Los Angeles declared:
Under Evidence Code Section 452(h), this court does take judicial notice
of the fact that Jews were gassed to death at the Auschwitz Concentration
Camp in Poland during the summer of 1944…. It is not reasonably subject
to dispute, and it is capable of immediate and accurate determination by
resort to sources of reasonably indisputable accuracy. It is simply a fact.
Because of the prejudicial effect of this action, the IHR decided not
to proceed with the suit, and instead settled the matter by signing a formal
letter of apology to Mermelstein on July 24, 1985, for the pain, anguish,
and suffering he sustained relating to the
50,000 reward offer, and agreeing to pay him 90,000 to settle the case.
(For details on the settlement, see “About the IHR/Mermelstein Settlement,”
below.)
Encouraged by this success, Mermelstein later brought yet another suit
for 11 million against the Institute charging malicious prosecution, defamation,
conspiracy to inflict emotional distress, and intentional infliction of
emotional distress. Yet on Thursday, September 19, 1991, in the Superior
Court at Los Angeles, Mermelstein voluntarily dismissed most of his complaints.
(Earlier that day, Judge Stephen Lachs had dismissed Mermelstein’s complaint
of “malicious prosecution.”) This victory not only saved the
Institute for Historical Review, but also substantially overturned the
negative effects of the both the 1981 judicial notice and the 1985 settlement.
(For more on this sweeping legal victory, see the October 1991 IHR Newsletter.)
The First Case
To appreciate the ramifications of this stunning reversal of fortunes,
one must review the convoluted connection between Mermelstein and the IHR.
In the first (“reward”) case — and despite absurdities in
his reward claim obvious to any knowledgeable student of Auschwitz — Mermelstein
was able to mount an aggressive attack against the IHR in the courts. He
was well armed with first-rate legal assistance, much of it donated, not
to mention overwhelming approval and support from the political establishment,
the mass media, and southern California’s influential Jewish community.
Meanwhile, the Institute had difficulty getting any legal counsel whatsoever,
let alone the kind of skilled, dedicated, and fearless attorneys needed
to withstand Mermelstein’s publicity juggernaut and his blitz in the courtrooms.
Recall the hurricane of libel and slander from the press, coming at a time
when what Alfred Lilienthal has called Holocaustomania was at high tide
in America. In an atmosphere of constant smears against the IHR and Revisionism,
every survivor hallucination (“Nazi ‘smiled’ as dog ate Jew,”
to cite one headline of the day) gained instant currency in a corrupt media
willing to accept such stories unquestionably and spread them as gospel.
Then recall the constant physical attacks that the enemies of truth
and freedom aimed at IHR, its staff, and its supporters. In addition to
harassment, including telephone threats, there was vandalism of IHR staff
cars and homes, a physical beating of IHR founder Willis Carto, and attacks
by gunfire and Molotov cocktail against the IHR office. Three separate
firebombings culminated in the arson of July 4, 1984, which resulted in
the total destruction of the IHR’s office and warehouse. Let us also not
forget the role of local Zionist thugs in carrying out much of this intimidation:
I refer to the goonwork of that gang led by the revolting Irving Rubin,
the so-called national chairman of the Jewish Defense League — but whom
I prefer to regard as the Grand Wizard, or, better, the Grand Dullard,
of the Kosher Ku Klux Klan.
Judicial Notice
And so, with the help of high-priced lawyers, a corrupt media, and Jewish
terrorists, Mermelstein seemingly laid to rest the historical issue by
obtaining Judge Johnson’s ridiculous judicial notice. His lawyers went
on to concoct a massive
17 million assault for breach of contract, conspiracy, intentional infliction
of emotional distress, and so forth, until IHR had virtually no choice
but to capitulate by settling out of court in preference to losing a potentially
ruinous trial.
The frustrating thing for all informed and conscientious Revisionists
was that the IHR’s researchers were aware from the beginning, thanks to
the very affidavit Mermelstein presented to claim the
50,000 reward, that when he described watching his mother and sisters
enter “gas chamber no. 5” through a tunnel, he was speaking of
an impossibility, an absurdity that became even more absurd six months
later, when, in sworn testimony, he said he’d seen them going down the
stairs into the tunnel to the gas chamber. Why? Because even then it was
well known to all students of Auschwitz that “gas chamber no. 5”
— in fact, Auschwitz Krematorium building V — had no stairs descending
from the outside, no tunnel, and no basement. It was entirely above ground!
As the IHR’s staff and supporters gathered more evidence, in the months
and years of the first trial, they learned more. In Mermelstein’s own book,
By Bread Alone, which offers a detailed account of the single night and
day he spent at Birkenau (May 21-22, 1944), and which was published only
two years before his sworn affidavit in application for the reward, Mermelstein
wrote nothing of witnessing his mother and sisters enter any building at
all, let alone any gas chamber — whether down the stairs, up the ladder,
through the window, or down the chimney.
During the course of the long discovery phase, that is, the period in
which the opposing parties gather evidence to support their case, researchers
for the IHR, led by Louis A. Rollins, were able to gather much more information
about what Mermelstein had said (or hadn’t said), and was still saying,
about his experiences in wartime Europe.
Working from a mass of statements, either direct or reported, made by
Mermelstein about his past life (paying particular attention to his time
at Auschwitz and other camps), Rollins was able to compile a list of instances
in which, it seemed to him, Mermelstein had either:
First, contradicted himself in his various statements on what he had
seen or experienced during the Holocaust (for example, his several different
accounts of how and where his father died), or; Second, made absurd claims
about what had happened to him and others during the Holocaust — for example,
witnessing a non-existent tunnel leading to the imaginary cellar of Krematorium
5, or being ordered to wash with soap made from dead Jews.
Contradictions and absurdities — Lou Rollins compiled 33 of them on
a list that ran to eleven pages. But because of the judicial notice, all
of this research went to naught. How, then, did it prove important in the
second case?
The IHR Fights Back
It happened like this: In 1984 an independent writer and journalist
by the name of Bradley Smith approached the Institute seeking funding for
a newsletter; Smith had decided to take on the thankless task of alerting
America’s journalists to the falsehood and fraud they were accepting and
disseminating uncritically under the rubric of the Holocaust. Smith went
on to publish some of the most flagrant instances of these claims in his
newsletter Prima Facie, and not surprisingly, among the ripest contradictions
and absurdities in the lore of the Holocaust were the testimony and statements
of Mel Mermelstein, as researched by Lou Rollins and studied, with due
diligence — remember that phrase, due diligence — by Bradley Smith.
Alas, Smith’s trumpet calls in Prima Facie went unheeded by our nation’s
press corps. In July 1985 came the settlement and the triumph of Mermelstein,
followed by his false gloating about how he had collected the reward, and
his false claim, made during a radio broadcast from New York that August,
that the IHR had signed the 1981 judicial notice, and thus accepted the
“fact” of homicidal gassings of Jews at Auschwitz.
As had happened after the 1981 judicial notice, tributes and congratulations
flowed in to the “survivor” from around the globe. How galling
it was for Revisionists to see Mermelstein vaunt himself to the nation
and the world as the man who proved the Holocaust, who had humbled IHR
and the Revisionists!
Undaunted
In the wake of this bitter defeat, IHR had two tasks:
First, to explain the settlement to its subscribers and supporters around
the world, to reassure them that IHR had accepted a compromise to avoid
the expense and uncertainty of trial but — and in spite of what Mel Mermelstein
and our other enemies were saying — had not abandoned its skepticism on
the gas chambers, and had not accepted the judicial notice. Second, to
show the flag, to proclaim our defiance, to fight back.
In the September 1986 issue of the IHR Newsletter (then editor) Bradley
Smith took direct aim, not at the so-called Holocaust, not at every one
of its survivors, but at that minority he firmly believed, on the basis
of a reasonably careful (or “duly diligent”) study of the evidence,
was actively engaged in spreading falsehoods about their experiences. Smith
wrote of “the vainglorious prevaricators,” “the false-tale
spinners who claim to speak for the survivor community,” and “such
demonstrable frauds as Melvin Mermelstein and Elie Wiesel.” Smith’s
good faith assertion that Mermelstein was a fraud was based on the previously
mentioned list that Rollins had compiled for the first trial.
The sweet taste of victory had done nothing to mellow Mermelstein’s
disposition, and when he learned of Smith’s short IHR Newsletter article,
he sued for defamation.
The Second Case
After Mermelstein launched his second suit, the Institute, learning
of his misrepresentation of the settlement of the reward case, filed a
defamation suit of its own against Mermelstein in August 1986. The IHR
never served this suit, and later voluntarily dismissed it. Thereupon Mermelstein
sued the IHR for malicious prosecution, and with the help of his attorney,
Jeffrey N. Mausner (formerly of the federal government’s “Nazi-hunting”
Office of Special Investigations), concocted an 11 million suit for four
causes of action: libel, malicious prosecution, conspiracy to inflict emotional
distress, and intentional infliction of emotional distress.
This suit was brought against four defendants: the Legion for the Survival
of Freedom, the non-profit corporation through which IHR functions; Liberty
Lobby, the nationalist and populist institution based in Washington, DC;
Willis Carto, founder of both IHR and the Liberty Lobby; and the southern
California law firm of Robert Von Esch, Jr., which had defended Liberty
Lobby in the reward case, and had filed the IHR’s defamation suit against
Mermelstein in 1986.
Pre-trial Shenanigans
The lead-up to trial was both protracted and eventful. After hearing
of the defamation suit against him, Mermelstein demanded that the Hartford
Insurance Company, where he had his homeowner’s insurance, pay his legal
costs. When Hartford refused, pointing out (reasonably enough) that Mermelstein
had never been served, attorney Mausner represented the IHR’s suit as a
big threat to Mermelstein. Mausner was able to intimidate Hartford with
his client’s Holocaust-survivor status to the extent of securing
60 thousand for Mermelstein in a settlement, as well as obtaining very
generous legal fees for himself. Apparently, Hartford was unaware that
at this same time Mausner was maintaining in a California court that IHR’s
suit was entirely groundless and frivolous.
In February 1989, a process server seeking Willis Carto on behalf of
Mermelstein mistook the IHR’s former accountant, Robert Fenchel, for Carto
at the Ninth Revisionist Conference at the Old World Shopping Center. That
November, Judge John Zebrowski found that, in spite of the non-service,
the IHR was delinquent in not notifying Mermelstein of his mistake: Zebrowski
imposed sanctions of 3,000, which the Institute was obliged to pay before
it could begin to defend itself.
This was followed by a number of unfavorable pretrial rulings: Mermelstein
was allowed to add new legal theories to his libel suit, four years after
it had been filed. The IHR was not allowed to make use of a California
law which allows a newspaper to retract offending statements and thus avoid
suit. The Institute’s motion for summary judgment on whether the Institute
had probable cause to sue Mermelstein for libel (and thus defeat his malicious
prosecution complaint) was rejected. Finally, in January 1991 Mermelstein
succeeded in obtaining a second judicial notice of gassing at Auschwitz.
Nevertheless, not everything went Mermelstein’s way: two judges, both
Jewish, who believed they might not be able to be impartial, did the decent
thing and disqualified themselves.
The Best Defense
After nearly five years of pre-trial maneuvering and legal jousting,
the trial at last loomed before us. The IHR was represented by William
Hulsy of Irvine. Liberty Lobby’s attorney was Mark Lane, an experienced
trial lawyer, a long-time fighter for civil rights, noted critic of the
Warren Report, bestselling author, movie scriptwriter, and anti-Zionist
Jew. Lane served as the defendants’ lead attorney, dealing primarily with
the conspiracy complaint. Hulsy was responsible for combating the defamation
charges, and for formulating the overall trial strategy.
They were assisted by Charles Purdy of San Diego, who also represented
Liberty Lobby, and by Willis Carto, who defended himself. Finally, the
Von Esches (primarily Mark Von Esch, son of Robert, Jr.) defended their
firm, and were to concentrate on dealing with the malicious prosecution
complaint.
William Hulsy had been recommended to us by John Schmitz, the former
US Congressman and very good friend of Revisionism and IHR. A successful
attorney with experience in more than 200 jury trials, Hulsy finally agreed
to take our case in spite of warnings from friends and colleagues, and
his own apprehensions about possible damage to his career.
Hulsy firmly believed that the case could be fought and won on its legal
merits, and that to make the main issue the Holocaust — as Mermelstein’s
attorneys were seeking to do — might very well result in an annihilating
defeat. He decided to oppose the libel complaint by convincingly demonstrating
to a jury, if possible, that everything Smith had written about Mermelstein
was true. Failing that, he would show that Mermelstein was “a public
figure,” who had thrust himself to the forefront of participation
in a public controversy in order to influence the resolution of the issues
involved (his constitutional privilege, according to the ruling of the
Supreme Court under Earl Warren, in the famous New York Times vs. Sullivan
ruling of 1964). Hulsy would also seek to show that the question of Mermelstein’s
credibility as an eyewitness to the gassings and the Holocaust was a matter
of public concern; that Brad Smith had exercised “due diligence,”
not reckless disregard for the truth, in his research for the offending
article; that Brad’s description of Mel was not based on personal malice;
and that the IHR’s Newsletter was not (as Mermelstein sought to argue)
disseminated to the public at large, but was instead a periodical circulated
to a limited readership that shared a specific interest in Revisionism.
Establishing any or all of these things might suffice to defeat the libel
complaint; failing that, to minimize damages.
Thanks to the evidence carefully compiled by Lou Rollins and others,
we could show that what had appeared in the IHR Newsletter about Mermelstein
was true. This alone should have been enough to defeat the libel complaint,
but Hulsy believed that it might not be enough to convince a Los Angeles
jury.
My Assignment
My first assignment was to demonstrate to Bill Hulsy that the IHR and
revisionists were not “neo-Nazis” or cranky flat-earthers, but
responsible researchers with a different viewpoint on modern history. After
winning his confidence, he set me to work gathering, compiling and evaluating
evidence to defend against Mermelstein’s libel complaint, based on Hulsy’s
research and understanding of the law. Again and again, Hulsy stressed
that he wanted evidence to win the trial, not to disprove the Holocaust.
But I must confess that I cheated: I sought every bit of evidence I could
lay my hands on about Mermelstein’s actual experiences during the Second
World War, and what he’d said about them over the years.
Aided by numerous volunteers who worked not only in California but across
the United States, and in Germany, Poland, and Israel, we searched for
whatever we could find about Mermelstein and his family. This included
evidence about his mental soundness (Mermelstein had admitted to being
under the care of a psychiatrist); information as to his litigation with
persons other than the IHR; newspaper reports quoting Mermelstein on his
Auschwitz experiences; and, of course, wartime documents from Auschwitz
and elsewhere that would disprove his claims about witnessing atrocities,
above all the alleged gassing of his mother and sisters at Auschwitz in
May 1944.
My first step was to nail down the existing evidence, much of it from
the first trial: Mermelstein’s sworn statements in the form of transcribed
depositions (of which there were eleven, running to some twelve hundred
pages of close interrogation by IHR and Liberty Lobby lawyers), written
responses to interrogatories, and the like; Mermelstein’s writings, above
all his autobiographical account of his concentration camp experiences,
By Bread Alone; and his public statements on his Holocaust years, reported
in more than a hundred different newspaper and magazine articles, and on
several recordings of presentations by Mermelstein at synagogues or seminars
as well as on radio broadcasts.
Further evidence came from history and reference books, such as Jewish
encyclopedias; public documents and records, including statements made
by Mermelstein to authorities at the Auschwitz State Museum and the German
consulate in Los Angeles; wartime documents from the German camps; and
Mermelstein’s US Army medical records.
As this mass of paper and audiotape accumulated, I had to read and re-read,
to analyze and evaluate, to extract and collate and tabulate the evidence
that would serve our defense against Mermelstein’s complaint that he was
libeled by the IHR’s description of him as “a vainglorious prevaricator,”
“a false-tale spinner,” and “a demonstrable fraud.”
Contradictions and Absurdities
While Mermelstein was a rather difficult witness who had attempted (sometimes
with success) to intimidate IHR attorneys during depositions by playing
the Holocaust card, he was often boastful and extravagant, and provided
many nuggets for analysis and comparison.
I began my compilation of contradictions and absurdities in Mermelstein’s
Holocaust claims with the list that Lou Rollins had put together. With
much more evidence and a great deal more time than was available to Rollins,
I compiled a new list, longer and more thorough than his original, but
including many of the discrepancies and exaggerations that he had caught
years earlier.
This listing had to be not only exhaustive, but reasonable and persuasive.
Citing mere slips of the tongue, or mistakes attributable to sloppy journalists,
would not only have been poor scholarship, it wouldn’t have persuaded a
jury.
Caught
In all, I discovered 30 absurdities, 22 contradictions, and a number
of exaggerations. These examples went directly to the matter of Mermelstein
as a “demonstrable fraud,” a “vainglorious prevaricator,”
and a “false-tale spinner.”
Among the absurdities were the nonexistent subterranean tunnel to the
above-ground crematory, the soap made from Jewish bodies, a claim that
Auschwitz camp “kapos” were rewarded for every prisoner they
killed, and that there was a railroad track leading from the crematory
to a pond for dumping ashes.
Contradictions
Since the summer of 1980, Mermelstein has repeatedly stated that he
saw his mother and sisters go into a gas chamber, or into tunnel leading
to it, from a distance of “a stone’s throw away,” a distance
of “40, 50 feet,” and that he watched the “gas chamber”
building for “a couple of hours.” Remarkably, though, Mermelstein
made no mention of witnessing any of this in any account available prior
to 1980, including his supposedly autobiographical book, By Bread Alone.
This is nothing compared to his varying versions of the fate that befell
his father. In a declaration given in November 1969 at the German consulate
in Los Angeles, Mermelstein said his father died during “evacuation
marches to Blechhammer from other camps.” According to the account
given in By Bread Alone, though, Mermelstein’s father died in bed after
working himself to death, trading food for cigarettes. In a May 1981 deposition,
his father had died of overwork and exhaustion, while in a June 1985 deposition,
he died of “exhaustion, cruelty, starvation, and beatings.” According
to still other accounts given by Mel Mermelstein, his father was “gassed
at Auschwitz.”
Mermelstein has given similarly contradictory accounts of what he did
while interned at Auschwitz (between approximately May 21 and July 1, 1944).
In a statement given in November 1969 at the German consulate in Los Angeles,
he had “no occupation.” Similarly, in a May 1981 deposition,
he declared that had done “practically nothing … just some detail
work” and “no physical work.”
In February 1987, a dramatically different account of Mermelstein’s
time in Auschwitz appeared. Ed Koch (who was then mayor of New York City)
told of a meeting with Mermelstein during a tour of Auschwitz. Koch reported
in a newspaper article that Mermelstein had told him: “I was part
of the special detail which hauled the bodies from the gas chamber and
took them to the crematoria.”
Exaggerations
In claiming that Auschwitz camp kapos would kill an inmate if “they
didn’t like the shape of your nose,” Mermelstein seemed to suggest
that his own nose was not unattractive. Survival could be just as cruel
as death, Mel implied on another occasion, because the bread given to Auschwitz
inmates (during the period when he claimed to have done “practically
nothing”) was intended not for nourishment, but to kill inmates “as
fast as they expected us to die.” At Buchenwald, Mermelstein would
have us believe, he went swimming “in blood,” even though he
and others had been transported to Buchenwald “only for one purpose”
— to be disposed of in crematorium rather than “litter … the beautiful
towns and cities with our bodies.”
Fortunately, Mermelstein and many others like him miraculously survived.
One of these friends, Dr. Miklos Nyiszli (who wrote his own book about
his stay entitled, Auschwitz: A Doctor’s Eyewitness Account), was a truly
exceptional survivor. In a 1981 deposition, Mermelstein claimed that Dr.
Nyiszli, whom he supposedly knew personally, would testify on Mermelstein’s
behalf about the alleged crimes of Dr. Josef Mengele at Auschwitz. At that
time, though, Nyiszli had been dead for more than 25 years.
The evidence we were able to collect about Mermelstein’s credibility
not only persuaded our attorneys that this was a very unreliable witness,
to say the least; it also, I believe, gave them additional confidence to
challenge Mermelstein directly.
New Evidence
In addition to all the evidence cited above, we obtained yet another
piece of potentially explosive evidence: a document that indicates that
Mermelstein’s sisters may have been alive nearly five months after he insisted
they were killed. This secret German document, dated October 12, 1944,
lists 500 Jewish females who were being transported from Auschwitz to Altenburg
(a sub-camp of Buchenwald). Among those listed are Edith and Magda Mermelstein,
names identical to those of Mermelstein’s two sisters. This document is
dated almost five months after the day in May 1944 when Mermelstein swears
he saw them gassed. While the birth dates of Edith and Magda as typed on
this document do not tally precisely with those given by Mermelstein for
his two sisters in By Bread Alone, there is good reason to believe that
the two women on the list were, in fact, his sisters.
Forewarned and Forearmed
From the volume of evidence we acquired, we learned two important things:
First, that Mermelstein is simply not a credible witness to gassings
at Auschwitz, or to very much else involving concentration camps and the
Holocaust. The contradictions, exaggerations, and absurdities lovingly
noted and recorded by the IHR’s researchers amply demonstrate this, not
merely to Revisionists and others skeptical of “survivor” testimony,
but any knowledgeable, intelligent, and fair-minded person. Whether Mermelstein
is fibbing, to others or to himself; whether he has forgotten; or whether
whatever he did experience has so deranged his mind as to render him incapable
of rationally recounting the facts, his testimony proves nothing about
the existence of Nazi gas chambers or a policy to exterminate Jews. If
anything, careful analysis of his statements indicates the opposite: that
there were no Auschwitz gas chambers or German policy to exterminate the
Jews. Second, there is no evidence that Mermelstein ever claimed to have
witnessed the gassing of his mother and sisters until after he learned
of the IHR’s reward offer. He apparently first claimed to have personally
seen them enter a so-called gas chamber in letters attacking the IHR that
appeared in newspapers in southern California and Israel in the summer
of 1980.
Neither his book, By Bread Alone (published in 1979), nor a statement
made for the Auschwitz State Museum in 1967 about his wartime experiences
in the camp, nor a sworn affidavit given at the German consulate in Los
Angeles in 1969 about crimes he had witnessed during his time at Auschwitz,
contains a word about witnessing any gassing.
Similarly, there is no mention whatsoever of Mermelstein having witnessed
the entry of his mother and sisters into a gas chamber, or anything like
that, in any of the several detailed press accounts about his industrious
activity as a lecturer, exhibitor of artifacts, and museum proprietor published
prior to the 1979 reward offer.
The Trial
After several postponements in the first half of 1991, the trial was
upon us. It followed a new Mermelstein media propaganda blitz, the centerpiece
of which was the made-for-television movie Never Forget. This lurid and
false account of the “reward case” was broadcast nationwide over
the Turner cable television network in April 1991 (or just before the original
trial date).
To make things more interesting, shortly before trial the Von Esches,
on whose shoulders virtually our entire defense of the malicious prosecution
complaint rested, threw in the towel and capitulated. After already enduring
years of vituperation as agents of a worldwide Nazi cabal, they gave in
to fear that their law practice would be ruined.
The Von Esches settled with a payment to Mermelstein of 100,000, and
a craven — I’m sorry to say — apology agreeing that, yes, Jews had been
gassed at Auschwitz, and that millions more had perished in Auschwitz and
other camps at the hands of the Germans.
Then we got a break. We learned that the trial judge, Stephen Lachs,
was Jewish, a member of the liberal American Civil Liberties Union, and
the first avowed homosexual to serve as a judge in California history.
As it happened, Lachs turned out to be a conscientious and impartial judge,
despite the sensitive nature of the case and the blatant attempts by Mermelstein’s
attorneys to appeal to his Jewish background.
The combination of Mark Lane’s trial savvy and Bill Hulsy’s careful
strategy brought about, against all expectations (ours as well as theirs),
an annihilating victory for the forces of historical truth and freedom
of inquiry. The 49 pretrial motions crafted by Hulsy to withstand and counter
Mermelstein’s case were like a mighty fortress protecting us and blocking
the enemy’s advance. Thus, even to get to a jury trial, Mermelstein’s three
lawyers — lead attorney Lawrence Heller, Peter Bersin, and Jeff Mausner
— were forced to attack across legal mine fields, negotiate factual tank
traps and concertina wire, dare procedural pill boxes and machine gun nests.
The plaintiff’s legal assault was contained at the outset, suffering heavy
casualties during the close-in combat over the pre-trial motions. When
Mermelstein’s lawyers attempted a retreat it quickly turned into a rout.
In the end, a downcast plaintiff and his (somewhat bedraggled) lawyers
slunk from the courtroom, seemingly dazed by defeat.
Mermelstein Takes the Stand
This is not to say that Mel Mermelstein didn’t have his day in court.
He and his counsel had unwisely declined to stipulate that he was a “public
figure,” as we had tried to establish (mindful of the added protection
against defamation suits by public figures provided by the Supreme Court
in a landmark 1964 decision). He also contested our motion to sever the
determination of that issue from the matters to be decided by the jury.
(We had wanted Judge Lachs to rule on this.)
As a result, Mermelstein took the stand, allowing Mark Lane to examine
him on the question of whether his activities qualified him as a public
figure according to the standards of the court. Mermelstein attempted to
argue that he was not a public figure, in spite of his admission on the
stand that he is: a published author; the founder of the “Auschwitz
Study Foundation”; the curator of a Holocaust museum (that was first
a traveling Holocaust exhibition); the willing subject of scores of newspaper
and magazine stories, radio and television interviews; an eager accumulator
of plaudits and testimonials from state and local governments, and laurels
from the likes of Israel’s late Prime Minister Menachem Begin; and a lecturer
who has spoken, over nearly two decades, at numerous colleges, high schools,
synagogues, and so forth, across the United States.
Lane led him carefully through each of these damaging admissions. Evidently
Mermelstein had believed that he could represent himself as someone who
had been dragged unwillingly into the public arena by the IHR (even though
most of his various public activities started before he’d ever heard of
the Institute).
After establishing Mermelstein as an author, curator, founder of a non-profit
educational organization, political honoree, and media star over the airwaves
and in print, Lane zeroed on Mermelstein’s activities as a lecturer. About
how many lectures had he given on Auschwitz prior to 1985, Lane wanted
to know. Here Mermelstein, uncommonly forthcoming so far, began to prevaricate.
Despite ample testimony out of his own mouth and pen as to his numerous
lectures over the years, testimony of which the defendants were very well
aware, Mermelstein claimed that he had given only about as many talks as
“the fingers on my hands.”
Thereupon Lane flourished a typed list, signed by Mermelstein, of more
than 30 lectures given by him in a period of just 18 months in 1981-1982.
Mermelstein tried to be crafty: he allowed that he might have lectured
more than once at the same place — not the most effective answer, but
one that later might defuse the issue for an inattentive jury.
At this point I recalled that in one of his depositions Mermelstein
had estimated giving an average of 20 lectures a year on Auschwitz since
1967. I quickly found the statement in a deposition given in 1985. After
a break for lunch, Mark Lane confronted Mermelstein with his own words,
and then, using a pencil and pad to multiply 18 by 20 (a calculation equalling
360), Lane asked Mermelstein if he hadn’t just told the court that he had
only given as many lectures as there are fingers on his hands. A vexed
Mermelstein then blurted out, “I meant the fingers of my hands and
feet!”
At that point, Judge Lachs was seen to roll his eyes heavenward. A few
minutes later, Bersin rose to concede his client’s status as a public figure.
Judge Lachs Rules
Several days later, after carefully considering the text of Mermelstein’s
characterization of the IHR’s 1985 settlement (which the plaintiff had
made on a New York City radio broadcast shortly after that settlement),
Judge Lachs declared that Mermelstein’s claim that IHR had “signed”
the 1981 judicial notice of gassing at Auschwitz could indeed be interpreted
by a reasonable man as defamatory. This meant, he ruled, that IHR had had
probable cause to sue Mermelstein in 1986, and that thus he had no alternative
but to grant the IHR’s motion for dismissal of Mermelstein’s malicious
prosecution complaint.
Ernst Zündel Archive 