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Zündel Replies:Rebuttal # 61:
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Zündel Replies:
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.