IHR Scores Stunning Victory in Mermelstein Trial

$11 Million Lawsuit Ends in Vindication for Defendants

Institute for Historical Review - From the IHR Newsletter, October 1991 (No. 82)

The Institute for Historical Review has won a resounding victory in its ten-year-old legal battle with California businessman and Holocaust personality Mel Mermelstein.

On Thursday afternoon, Sept. 19, 1991, Mermelstein and his attorneys gave up what was left of their lawsuit, and voluntarily withdrew complaints of libel, conspiracy to inflict emotional distress and intentional infliction of emotional distress. Earlier in the day, Los Angeles Superior Court Judge Stephen M. Lachs had thrown out as lacking in merit the malicious prosecution portion of the case.

In his suit against the IHR and co-defendants Liberty Lobby and Willis Carto, plaintiff Mermelstein had sought $11 million in damages.

Dismissal of the case -- which came before a single juror was selected -- concluded seven days of courtroom wrangling by the two sides, with southern California attorney William Hulsy representing the IHR, noted civil liberties attorney Mark Lane and San Diego attorney Charles Purdy representing Liberty Lobby, and Willis Carto representing himself. On nearly every legal issue in dispute, this legal team bested Mermelstein's three trial attorneys, Lawrence Heller, Peter Bersin, and former OSI prosecutor Jeffrey Mausner.

Victory in the case (No. C629224) caps an acrimonious legal clash that has attracted nationwide media attention. Mermelstein's long-standing campaign to shut down the IHR was sensationalized, for example, in a made-for-television movie, "Never Forget," broadcast nationwide last April 8 on the TNT cable television network. Veteran actor Leonard Nimoy played the former Auschwitz and Buchenwald camp inmate, who was portrayed as a man of courage, rectitude and integrity.

During the lengthy pretrial maneuvering, Mermelstein's high-powered lawyers had scored some important victories, including imposition of sanctions and a January 1991 judicial notice of homicidal gassings at Auschwitz.

One disheartening indication of just how intimidating the high-profile plaintiff and his Beverly Hills attorneys could appear came in late June, when the law firm of Robert Von Esch, Jr., which was being sued along with the IHR and the other defendants, surrendered to Mermelstein.

Robert Von Esch and his son, Mark, settled with the plaintiff to remove themselves from the case by agreeing to give him $100,000 and an explicit apology for having filed and August 1986 libel suit by the IHR against Mermelstein. The Von Esches also formally acknowledged that Jews had been gassed at Auschwitz and that millions of Jews had perished in German wartime camps. This capitulation was an ominous development because the Von Esches had been largely responsible for organizing our defense in the malicious prosecution half of the case, which was based on the suit they had filed on behalf of the IHR.

After several delays, including an unsuccessful effort by Judge Lachs to get the two sides to settle the dispute without a trial, attorneys for each side, as well as plaintiff Mermelstein and co-defendant Willis Carto, met in Los Angeles Superior Court on Tuesday, Sept. 10, to finally begin presenting their arguments.

A Fair Judge

It was evident from the start that Mermelstein and his attorneys hoped to turn this trial into a sensational Holocaust extravaganza, through which they might sway a sympathetic judge and credulous jury members with dramatic appeals to prejudice and emotion. Our attorneys, by contrast, sought to confine this case to the narrower legal issues at dispute, firmly confident that justice would prevail and we would be vindicated if the law and facts of the case were respected.

From the outset, Judge Lachs proved to be open-minded, thorough, civil and judicious. In spite of his Jewish ancestry, which conceivably could have prejudiced him in favor of the plaintiff, Lachs consistently put the law and the facts of the case ahead of all other considerations. He gave Mermelstein and his attorneys every conceivable opportunity to present their arguments, but he never gave them their hoped-for opportunity to turn this trial into a Holocaust circus.

Relying on extensive research by Ted O'Keefe, IHR attorney Hulsy prepared 49 pretrial legal motions. He thereby constructed a formidable array of defenses, firmly rooted in the law and the facts, which the plaintiff's lawyers would have to break through before they could begin their emotional appeal to Holocaust prejudice. Judge Lach's favorable rulings on nearly every one of our motions effectively destroyed most of Mermelstein's concocted case.

His attorneys were visibly shaken when the Judge told them in no uncertain terms that, based on the language of Smith's September 1985 Newsletter essay, "the Holocaust" was not the issue of the trial, nor even of the libel complaint. Lachs also restricted the plaintiff's attempts to introduce into evidence ancient and irrelevant writings by Willis Carto, and an immaterial judicial opinion about Liberty Lobby.

Lachs similarly refused to take "judicial notice" of the entire Nuremberg trial record and materials from various earlier cases involving Liberty Lobby. And in a particularly damaging blow for the plaintiff, the Judge threw out the part of the libel complaint involving a remark in another article by Smith that Mermelstein was "perceived as a fool" by parts of the Jewish community.

'Best Witness'

After Judge Lachs had ruled that he, rather than a jury, would decide whether Mermelstein was a "public figure," at the time the allegedly libelous article was published, the plaintiff took the stand on Friday, the 13th, to testify on his own behalf. He knew that if he were judged to be a "public figure," his chances of bankrupting the
defendants would be appreciably slimmer.

Mermelstein proved to be much more forthcoming on the stand than he had been during previous deposition sessions. The Holocaust publicity hound acknowledged that he had appeared on radio and television, that he had authored and promoted an autobiographical account of his wartime experiences, that he had founded a museum and tax-exempt "Auschwitz Study Foundation," and that he had accepted several public tributes and awards.

At the same time, though, he tried to argue that he had been a RELUCTANT public figure. This ploy did not work, and Mermelstein's session on the stand quickly turned into an embarrassing disaster. When asked how many lectures he had given between 1967 and 1985, he declared under oath that he had given about as many as the number of fingers on his hands. Mark Lane thereupon confronted him with a statement in a 1982 sworn interrogatory in which he had listed thirty different lectures, at thirty different places, between January 1981 and May 1982 alone. It got worse.

After Mermelstein tried to weasel out of that incongruity, Journal editor Ted O'Keefe hurried back to the IHR's nearby temporary command center and quickly riffled through Mermelstein's January 8, 1985, deposition and found the page on which he admitted giving about twenty lectures YEARLY since 1967.

Back in the courtroom a short time later, Lane confronted Mermelstein with this damning discrepancy, ostentatiously using a pad and pencil to multiply eighteen times twenty. At this point the enraged witness lost control and frantically exclaimed: "I meant the fingers on my hands and FEET!" A few minutes later, Bersin rose to concede his client's status as a public figure.

Even the judge seemed to be visibly struck by the plaintiff's apparently dishonest and self-incriminating testimony, which could have been presented to jury members if the trial had gone on.

Flaring Tempers

Mermelstein's case continued to unravel. During legal jousting on Monday and Tuesday, the 16th and 17th, Lane and Hulsy delivered further telling blows. Each side presented arguments for and against several legal points in dispute, including a defense motion to dismiss the plaintiff's complaint for malicious prosecution.

The key issue here was whether Mermelstein had defamed the IHR by saying in an August 1985 radio talk show interview that the Institute had "signed" Judge Johnson's 1981 judicial notice as part of the 1985 settlement, thereby agreeing that Jews had been gassed at Auschwitz. Our attorneys argued that the IHR had merely acknowledged the fact that the judge had taken judicial notice, and had not endorsed or affirmed his ruling. Since Mermelstein's attorneys once again proved to be unprepared, they were given additional time to work on their arguments and evidence on this part of their case.

Tempers flared on Tuesday, the 17th. At one point that day, when Lane reprimanded Bersin for utterly misrepresenting the facts of IHR's 1986 libel suit, Judge Lachs took pity on Bersin by remarking that he'd only recently entered the case. Our side then presented evidence to show that Bersin had in fact been involved in the case since early

Attorneys for the two sides met in the courtroom right after the Judge adjourned the case for the day. So rattled had Mermelstein's attorneys become by this time that they reacted furiously to a request by Lane that they present evidence and not predictions. First Heller and then Bersin verbally assaulted Lane with foul obscenities. Bersin also confronted 64-year-old Lane, bellowing at a distance of about three inches face to face and implicitly threatening him with physical violence. An affidavit recording the details of this outrageous incident was signed by Lane and several witnesses, and was submitted to the Judge.

Defeat for Mermelstein

On Thursday morning, after Willis Carto and IHR Director Tom Marcellus had each testified on the harm to the Institute as a result of Mermelstein's defamatory August 1985 radio broadcast, Judge Lachs explained why he had come to the unequivocal conclusion that the IHR had not agreed to the judicial notice, that Mermelstein had mischaracterized the facts of the settlement, and that the IHR therefore had probable cause to sue Mermelstein for libel. Finding that Mermelstein's malicious prosecution complaint lacked merit, Judge Lachs accordingly sustained Hulsy's motion for a nonsuit on that count.

Sensing inevitable defeat, Mermelstein and his attorneys now decided to abandon their obviously hopeless effort. After lunch, they suddenly gave up what was left of their concocted case, voluntarily dismissing the complaints of libel, intentional infliction of emotional distress and conspiracy to inflict emotional distress.

At the same time, Heller announced that his client intended to appeal the judge's ruling on the malicious prosecution complaint. He also had the chutzpah to accuse Judge Lachs of being biased, a remark for which the Judge mildly but effectively rebuked him.

The defendants agreed to go along with a face-saving but essentially meaningless final gesture by the plaintiff. In the highly unlikely event that Judge Lach's decision is overturned on appeal and a new trial takes place, Mermelstein's voluntary dismissal of the intentional infliction complaint will not prejudice his right to obtain such damages arising from the malicious prosecution complaint.

Although Mermelstein has announced his intention to appeal the Judge's dismissal, declaring that "these guys [the defendants] are still not off the hook," our seasoned counsel believes that there is almost no realistic prospect of a successful appeal.

Heller's "sour grapes" lament that Lachs had been "unfair and not impartial" is almost laughable. What really happened is this: After ten years of dogging the IHR, Mermelstein had his day in court – and it proved to be a fiasco.

During the seven days of the trial itself, the case received no media coverage whatsoever. Scanty newspaper reports appeared only after the case was dismissed. A short and misleading item appeared in the Orange County Register, for example. A lengthier and more accurate report in the Los Angeles Times, headlined "Doubters of Holocaust Win a Round in Court," appeared only in the paper's Orange County edition [Sept. 25, 1991, p. B9]. This stinting coverage is in striking contrast to the copious and exultant nationwide publicity that was given to the disappointing outcome of the 1985 Mermelstein case.

A Hard-Fought Battle

Our victory in this complex and potentially devastating case was not a lucky break. It was the result of hard work and careful preparation by our capable attorney and IHR staff, help from several dedicated volunteers, and the financial resources generously provided by the Institute's supporters around the world.

From the outset of the trial, it was obvious that our side was markedly better prepared than Mermelstein's. Much of the credit for this must go to IHR's attorney William Hulsy, who crafted the pretrial motions that proved to be of decisive importance. He was ably assisted by IHR editor Ted O'Keefe, who spent many hours sifting through small mountains of paper to find, evaluate and organize nuggets of useful information.

Our success is also due in large measure to the courtroom savvy and sensitivity of Liberty Lobby attorney Mark Lane, a prominent defender of unpopular individuals and causes since his spectacular challenge to the Warren Commission report on the 1963 assassination of President Kennedy. As the defendants' lead trial lawyer, it was Lane who made the initial decision to place full trust in the fairness and legal acumen of Judge Lachs.

Looking to the Future

Because the trial concluded before going to a jury, we did not have an opportunity to bring out our "heavy artillery." We were ready to prove -- with numerous specific examples -- precisely why Bradley Smith had good reason to conclude in his September 1985 Newsletter essay, "How the Press Invites Anti-Semitism," that Mel Mermelstein is indeed a "demonstrable fraud" and a "prevaricator." We also were prepared to document numerous falsehoods, inventions, contradictions and self-evident absurdities by Mermelstein over the years. And, if necessary, we were ready to thoroughly defend our view of the Holocaust issue with the help of expert witnesses such as Fred Leuchter, Robert Faurisson and David Irving ...

This has been a great victory not only for the IHR, our co-defendants and many supporters around the world, but for men and women of good will everywhere who believe in freedom of expression and historical truth. It was won on the facts of the case, and on our law, which in spite of abuses still protects the right of Americans to express unpopular views and inconvenient truths ...