TestifierMel Mermelstein

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A businessman, Mermelstein made wooden shipping pallets. But he was known briefly as a public figure starting in 1979 when he forced an issue that he was told to instead “leave it alone.” Mermelstein was the sole survivor in his family of the Holocaust. Someone taunted him that it was a lie, that Jews’ World War II deaths were caused by disease, malnutrition, and Allied bombings. Born in Mukachevo, then Czechoslovakia (then annexed by Hungary, and now part of Ukraine), Mermelstein was deported to Auschwitz on May 19, 1944, with the rest of his family. He was 17. “My mother, she was only 44 years of age” when she was killed. “My two sisters, both went to the gas chambers. My father and brother were selected for slave labor, just like me. My father was killed there, and my brother attempted to escape and he was shot.” In 1979, southern California’s Institute for Historical Review, a leading Holocaust denier, offered $50,000 for “proof that gas chambers for the purpose of killing human beings existed at or in Auschwitz.” Mermelstein wrote his testimony, which was published by the Los Angeles Times and The Jerusalem Post. The IHR taunted him to “prove” it; he submitted his story in a notarized affidavit, but the IHR refused to accept it as “proof.”

In January 1945 Mermelstein was sent on a death march to the Gross-Rosen concentration camp. From there he was sent on a train without food or water to Buchenwald; his weight on arrival was 68 pounds. Mermelstein is in this photo taken upon liberation: he is in the far upper-right (U.S. Army photo)

Mermelstein sued the organization for breach of contract,  anticipatory repudiation, libel, injurious denial of  established fact, intentional infliction of emotional  distress, and declaratory relief. In 1981, both sides filed in court for summary judgment from Los Angeles County Superior Court Judge Thomas T. Johnson. California’s Evidence Code permits Courts to take “judicial notice” of “facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute.” Thus, Johnson ruled on October 9, 1981, that “This court does take judicial notice of the fact that Jews were gassed to death at 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.”

Mermelstein at Birkenau in 1967, in the ruins of the ruins of the gas chamber where his family was killed. (Family photo)

The IHR thus not only lost the case and had to pay Mermelstein the $50,000, they and their backers were also required to pay an additional $40,000 in damages, plus write a letter of apology. Mermelstein got it all, and displayed copies at a southern California art gallery. “It was the greatest ruling I could have hoped for,” Mermelstein’s attorney, William John Cox, said later. “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.” Scholars agreed. “His taking judicial notice was important,” said Emory University historian Deborah Lipstadt, “not in that it validated the Holocaust, but it avoided providing Holocaust deniers with a platform to grandstand and to present their historical distortion.” Judge Johnson, who had been appointed by Gov. Ronald Reagan, died December 28, 2011. Moric “Melvin” Mermelstein died January 28 at his home in Long Beach, Calif. He was 95.

From This is True for 6 February 2022