August 5, 1985 (a Monday)

Jewish slave laborers in the Buchenwald concentration camp near Jena, Germany. Elie Wiesel is on the second row from the bottom, seventh from the left. Reportedly Mel Mermelstein is on the top bunk at the far right. (16 April 1945)

On this date, Long Beach, California businessman Melvin Mermelstein struck a powerful blow against bogus history and historical hoaxes. Mel was awarded a judgment in a California court, in a contract case.

In 1980, the Institute for Historical Review (IHR), a Torrance, California organization that claimed that the planned extermination of Jews by the Nazis was a myth, had offered a $50,000 reward for anyone who could prove that the Holocaust actually happened.

Mermelstein was 17 years old in May, 1944, when he was sent to Auschwitz, the largest of the World War II concentration camps. He was freed from the Buchenwald camp in April, 1945. His parents, two sisters and one brother did not survive the Nazi death camps. He offered his evidence to the IHR: Mermelstein sent the institute a lengthy affidavit recounting how he and his family were arrested in the spring of 1944 and sent to the Auschwitz-Birkenau camp. He described how he witnessed Nazi guards ushering his mother and two sisters and others towards (as he learned later) gas chamber number five.

The Holocaust deniers, of course, had no intention of paying up. They dismissed any evidence offered as inadequate, and continued to claim no one could prove that the Holocaust actually occurred.

Mermelstein, however, knew the law. He knew that the offer of the reward was a sweepstakes, a form of contract. He knew it was a contract enforceable in court. He sued the IHR, contending that the institute reneged on its offer after he submitted proof of the murders. The issue in court would be, was Mermelstein’s evidence sufficient?

Mermelstein’s lawyer, William John Cox, had a brilliant idea. He petitioned the court to take “judicial notice” of the fact of the Holocaust. The doctrine of judicial notice allows courts to recognize as fact something that is so well established that it doesn’t need to be evidenced when it is introduced in court — such as, 2 + 2 = 4, the freezing point of water is 32 degrees Fahrenheit and 0 degrees Celsius, the Earth orbits the Sun, etc.

In a pre-trial hearing on 9 October 1981, Los Angeles County Superior Court Judge Thomas T. Johnson resolved the most controversial part of the case; the court ruled that the Holocaust had occurred. The judge 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 just simply is a fact that falls within the definition of Evidence Code Section 452(h). 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.

That ruling meant that, by operation of law, Mermelstein had won the case, obviating the need for a court trial.

“It was the greatest ruling I could have hoped for,” Cox later said. “It would have been very easy for the judge to say the motions on summary judgment are denied. There was no real requirement that he do this…. It was a courageous decision.”

“His taking judicial notice was important, not in that it validated the Holocaust, but it avoided providing Holocaust deniers with a platform to grandstand and to present their historical distortion,” Emory University historian Deborah Lipstadt said.

On 5 August 1985, Judge Robert A. Wenke entered a judgment [archived here] based upon the Stipulation for Entry of Judgment agreed upon by the parties on July 22, 1985. The judgment required IHR and other defendants to pay $90,000 to Mermelstein and to issue a letter of apology to “Mr. Mel Mermelstein, a survivor of Auschwitz-Birkenau and Buchenwald, and all other survivors of Auschwitz” for “pain, anguish and suffering” caused to them.

Mermelstein was portrayed by Leonard Nimoy and Cox was played by Dabney Coleman in a 1991 TV movie about the 1981 lawsuit called Never Forget. Mel wrote of the court battle in his autobiography entitled By Bread Alone: The Story of A-4685 (1979).

[Thanks to Ed Darrell, author of the blog entitled Millard Fillmore’s Bathtub, for bringing Mel Mermelstein to my attention. — Ed.]

References:

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4 responses to “August 5, 1985 (a Monday)

  1. Pingback: Remembering Mermelsteing the Hero, a day late | Millard Fillmore's Bathtub

  2. Interesting article! If you like history, please visit and follow my blog at http://publishistory.wordpress.com/ (I’ll follow you back!) It contains history articles on a variety of subjects written by myself and university friends! 🙂

  3. Thanks for spreading the word about Mel Mermelstein.

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