On October 9, 1981, Judge Thomas T. Johnson of the Superior Court of Los Angeles ruled once and for all that Jews had indeed been gassed to death in Auschwitz. It was the first time a court in the United States had ruled that the existence of the Holocaust was something that did not need to be proved when it arose in a court case.
Judge Johnson’s "judicial notice", acknowledging the incontrovertibility of the fact that Jews had been gassed in Auschwitz, came in the case of survivor Mel Mermelstein. He had sued the Institute for Historical Review, a self-styled “revisionist” group, when it refused to pay him the sum of $50,000, which it had promised to pay for “verifiable proof that gas chambers for the purpose of killing human beings existed at or in Auschwitz."
The notice didn’t mark the end of the judicial proceedings, but it virtually guaranteed that Mermelstein would win his case if and when it went to trial.
Moshe Mermelstein had been born in Orosveg, Czechoslovakia, on September 25, 1926, and grew up in nearby Munkacs. The Carpathian region was occupied by Hungary in 1938, and later by Germany, which on May 19, 1944, ordered the deportation of the Jews of Munkacs to Auschwitz.
Three days later, on arrival at the death camp, the 17-year-old Mermelstein watched as his mother and two sisters were dispatched to gas chamber number 5.
The men of the family were assigned to hard labor, and by the time Mel was liberated from Buchenwald, to which he had been transferred, he was the family’s lone survivor: His father had died while working in a coal mine, and his brother had been shot on a death march.
After liberation, in April 1945, Mermelstein spent time in a DP camp before receiving an invitation from an uncle in New York, which allowed him to immigrate to the U.S. in August 1946.
Mermelstein served in the U.S. Army during the Korean War, and in 1961, he married Jane Nance, a Baptist woman from Tennessee. The couple moved to Southern California, where they had four children. He opened a plant for the production of wooden palettes in Huntington Beach.
The Institute for Historical Review had been co-founded in 1978 by Willis Carto, a longtime veteran and leader of ultra-right-wing, often anti-Semitic groups, and David McCalden. At the group’s first national convention, in August 1979, it announced its intention to give a prize of $50,000 to anyone who could prove that Jews were murdered in Auschwitz.
Mermelstein, who had promised his father before they parted that he would tell the world “what they did to us,” was outraged by the IHR’s obviously insincere challenge, and wrote a letter in that vein to the Jerusalem Post. An official from the IHR then wrote to Mermelstein directly, in December 1980, giving him a month to produce proof of the use of gas chambers at Auschwitz, and threatening to expose him in the media if he did not.
Mermelstein sent a copy of his 1977 survivor’s memoir, “By Bread Alone,” and other materials to the IHR, and then waited for a response. He also took on the assistance of an attorney, William John Cox, an idealistic and unconventional private practitioner who took the case on a pro bono basis.
Cox began sending letters to the IHR demanding they keep up their end of the bargain; when they didn’t, he sued them for breach of contract and other claims.
The significance of Judge Johnson’s judicial notice was that when the case eventually went to trial, Auschwitz’s use as a death camp would be treated as a given.
Trial was eventually set for August 1985, but the IHR agreed to settle first: It paid Mermelstein the $50,000 reward, plus an additional $40,000 for the emotional distress it had caused him, and issued a letter of apology “for the pain, anguish and suffering he and all other Auschwitz survivors have sustained relating to the $50,000 reward offer.”
In 1991, the case was the subject of a TV docudrama, “The Best Witness,” in which Mermelstein was played by Leonard Nimoy, his wife by Blythe Danner, and Cox, the lawyer, by Dabney Coleman.
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