From: ralphw@b-cpu.UUCP (Ralph Winston)
Newsgroups: alt.conspiracy,alt.censorship,alt.discrimination,soc.history,alt.activism
Subject: IHR Scores Stunning Victory in $11 Million Mermelstein Trial!
Date: 7 Apr 92 05:28:37 GMT
Organization: Banished CPU, +1(503) 232-6566


                       From the IHR NEWSLETTER,
                       October 1991 (Number 82):


           IHR SCORES STUNNING VICTORY IN MERMELSTEIN TRIAL
        $11 Million Lawsuit Ends in Vindication for Defendants


     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, 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
1990.

     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 obscenitites.  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.  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.  We are working on plans to tell the full
story of the Mermelstein case -- including devastating information
about America's noisiest Holocaust personality -- in a book and video
report.  (Details to be announced.)

     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.

     This success is yet another indication that the IHR has reached a
new level of solidity and permanence, which even our adversaries
grudgingly recognize.

     To be sure, we have won a battle, not a war.  In spite of the
gratifying outcome, the IHR has still been straddled with heavy legal
costs, including attorney's bills and numerous other expenses connected
with this case.  Support from our generous and loyal supporters remains
crucially important.

     With so much of our time and effort devoted to this critically
important case, and unsure about the outcome in a legal fight that
could have meant the end of the IHR, we have not been able to make
long range plans.  We could not schedule the next (eleventh) IHR
conference, for example.

     But now -- in the spirit of Nietzsche's phrase "What does not
destroy me, makes me stronger" -- we can look to the future with
greater confidence than ever.  With your continuing help, for which we
are eternally grateful, we shall continue the great struggle for
historical truth and awareness.

----------

                                Ralph Winston

-.-
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