In October 1981, Judge Thomas Johnson made an announcement. After deliberation, he had accepted a fact into judicial notice—a legal term for a fact accepted in a court as true without the need to produce evidence. The Holocaust, said Johnson, was an indisputable fact.
The pronouncement seems slightly ludicrous given the weight of evidence that has emerged since the extent of Hitler’s “Final Solution” was revealed at the end of World War II. But for the plaintiff in the case, Mel Mermelstein, it was nothing less than a triumph—a critical moment in a decades-long struggle to tell the world that what he experienced in the Holocaust happened.
In 1944, Mermelstein, then 17 years old, was deported to Auschwitz-Birkenau. He was not alone: Despite the attempts of Hungarian Regent Miklós Horthy to prevent it, the deportation of Hungary’s Jews to camps kicked off within weeks of Germany’s occupation of the country in spring of that year.
Four years earlier, Adolf Hitler annexed Mermelstein’s hometown, Munkacs, Czechoslovakia, to Hungary as part of the Munich Agreement. Germany and Hungary were ostensibly allies, but Horthy, despite being a self-described anti-Semite, was never fully committed to the Nazi war effort.
Horthy’s government passed discriminatory laws, including ones that limited the number of Jewish university students and outlawed sex between Jewish and non-Jewish Hungarians.* But though he made daily life even more difficult for Jews, at least it wasn’t deadly. Until the end. Horthy defied Hitler’s orders to deport Jews for slaughter—a reason why, on March 19, 1944, the German army invaded and occupied Hungary. His crime, Horthy told a friend, was that “I have not fulfilled Hitler’s wish, and have not allowed the Jews to be massacred.”
Nazi SS leader Adolf Eichmann, often called the “Architect of the Holocaust,” arrived to oversee the deportations of Hungarian Jews to Auschwitz-Birkenau soon after the occupation. The first transports reached the death camp on May 2, and for two months, four trains brought some 12,000 Jews every day. Horthy halted the deportations in July 11, but only after 437,000 Jews were sent to perish. Between ten and 15 percent were put to work; the rest were murdered. During that stretch of 1944, Birkenau hit peak killing efficiency as more than a million people were killed, including 850,000 Jews.
In the last conversation he ever had with his father, Prisoner A-4685 described the horrific fate that befell his family.
“Your mother and sisters are…” He paused a moment, unable to go on. “And you must not torture your minds about their fate. Yes, yes. Look! There!” And he pointed to the flaming chimneys. The vision of mother, Etu and Magda being burned alive made me feel faint. My head began to spin. I wouldn’t accept it. I wanted to run, but where? I started to rise, but father laid a restraining hand on me.
“And it’ll happen to us, too,” he added quietly. Then more firmly he said, “But if we stay apart, at least one of us will live to tell.”
Mermelstein was the only one in his family to survive the Holocaust. He recounted his experiences in the 1979 memoir By Bread Alone. Not long after the book’s publication, Mel would live to tell his story again—this time, in Johnson’s court, as he and lawyer William John Cox took on a group of Holocaust deniers who dared Mermelstein to prove the Holocaust happened at all.
“I would not let them get away with it,” Mermelstein, 91, said via e-mail.
Mermelstein’s long journey to becoming a public witness to Nazi inhumanity began in January 1945. He was one of the 60,000 Jews set forth on the infamous death marches. Over three weeks, Mermelstein and 3,200 other prisoners walked roughly 155 miles from Auschwitz-Birkenau to the Gross-Rosen concentration camp in the savage Polish winter. It’s estimated a mere ten percent survived. To keep going, Mermelstein took a pair of shoes off a warm corpse, a recent shooting victim on the wayside whose body hadn’t frozen yet.
From Gross-Rosen, Mermelstein was packed onto a train for three days and nights—without food or water—and sent to the Buchenwald concentration camp. He arrived in February, stricken with typhus and weighing 68 pounds. He was shunted to the predominantly Jewish “Little Camp” section, a series of barns built for 450 that were filled with more than 10,000 sick, dying, emaciated prisoners. The hunger he experienced there, he said, was “vicious torture …by bread and bread alone.”
After two months, on April 11, Buchenwald was liberated by U.S. forces. The next day, Generals Dwight Eisenhower, Omar Bradley, and George Patton toured Ohrdruf, a subcamp of the larger concentration camp and found 3,200 naked bodies in shallow graves, some showing evidence of cannibalism. Three days later, Eisenhower cabled General George C. Marshall asking for members of Congress and journalists to visit the liberated camps to report the atrocities to the American people.
“I visited every nook and cranny of the camp because I felt it my duty to be in a position from then on to testify at first hand about these things in case there ever grew up at home the belief or assumption that ‘the stories of Nazi brutality were just propaganda’” Eisenhower wrote in his 1948 memoir Crusade in Europe, presaging the Holocaust denial Mermelstein would fight head-on more than three decades later.
After a few weeks of recuperation, Mermelstein returned to Munkacs, but the 18-year-old quickly realized all of his immediate family was gone. His household obliterated, Mermelstein decided to leave Europe. About the only thing he kept was a box of family photos, which had been safeguarded by a friend. During his travels, Mermelstein would say the Kaddish, the Jewish prayer for the dead, every chance he got.
Mel knew he had an Uncle Adolf and an Aunt Florence in the United States. He didn’t know them well, but it was enough to begin anew. On August 31, 1946, he arrived in New York harbor aboard the SS Marine Perch.
“Dad didn’t speak English, but he had a great ability for languages and picked it up quickly,” says Edie Mermelstein, Mel’s daughter. “He was also fluent in Hungarian, Czechoslovakian, Hebrew, Russian, Polish, Yiddish, so he was able to get a job at the United Nations.”
Mel worked for a number of years in New York City. Along the way, he fell in love and married Jane Nance. The couple didn’t want to raise a family in Manhattan, so they headed out west and settled in Long Beach, California. In 1965, Mel started a manufacturing company that makes wooden pallets, and is still in operation today.
Owning a successful family business gave Mermelstein the resources to travel overseas and begin building his personal collection of Holocaust-related artifacts. At first, he didn’t speak publicly about his concerns that the world would forget the slaughter of the Jews. In 1967, the Six-Day War stirred him to action. “I saw [Egyptian President Gamal Abdel] Nasser shaking his fists and saying he was going to drive the Jews into the sea,” he told The Los Angeles Times in 1988. “It reminded me of Hitler.”
From then on, the Holocaust was omnipresent in the Mermelstein household.
“I grew up with the Holocaust. As a child, my father took me to a screening of Night and Fog at the public library he was hosting,” says Edie, 54. “No second-grader should see a movie filled with actual Nazi footage, but Dad was never afraid to talk about it. Confronting the Holocaust became his mission.”
At the height of the Cold War, Mermelstein repeatedly returned to the extermination camps —more than 40 times. He always brought back objects to the Auschwitz Study Foundation, the Huntington Beach-based nonprofit he started in 1975. Mermelstein was an Indiana Jones-type, crossing the Atlantic to visit the camps and (with the blessing of the employees overseeing the grounds) take home various artifacts including light posts, barbed wire, Zyklon B canisters, human teeth and bone fragments, and bricks caked with ash. Mermelstein even found personal evidence: a photograph of himself in the barracks with a group of starving men and pieces of the oven where his mother and sister were cremated.
He didn’t sport a wool fedora and leather coat a la Harrison Ford; he was more a swashbuckling figure in the spirit of a dapper Graham Greene, bounding through the 20th century’s most notorious death chambers in three-piece suits, a trench coat and plaid blazer.
“Dad was a badass,” says Edie. “He fearlessly went back to Eastern Europe again and again.” In 1978, she accompanied her father on a trip to Auschwitz where he put an entire concrete post in a wheeled suitcase. When he was stopped by Hungarian officials, he showed them his tattoos and was allowed to keep the artifact.
Mermelstein built a private 1,000-square-foot museum in the back of his lumber plant and started speaking to schools, synagogues, and community groups. As this was years before the Simon Wiesenthal Center was founded, the film Shoah was released, and the United States Holocaust Memorial Museum was opened, his mission was a solitary, under-the-national-radar one. It was his 1979 memoir, By Bread Alone, that made him the target of rabid hatemongers.
In June 1960, a right-wing activist named Willis Carto went to a San Francisco jail to interview Francis Yockey, publisher of a monthly bulletin titled Right, who was being held for passport fraud. Despite serving briefly as a post-trial review attorney on the Nuremberg trials, Yockey was a rabid anti-Semite. In 1948, under the pseudonym Ulick Varanage, he had written Imperium, a book dedicated to Adolf Hitler, “the hero of the second World War,” calling for the racially pure Nordic race to dominate Europe and for their Aryan-American brethren to follow in totalitarian suit. In Imperium, Jews are the “Culture Distorter” who caused the Nazi failure.
Carto was transfixed by Yockey and gained cachet amongst anti-Semitic conspiracy theorists as the last man to see their idol alive. Not long after Carto’s visit, Yockey killed himself with a cyanide pill.
Their meeting would be deeply influential to Carto, who had been associated with various fringe groups since the 1950s. In 1958, he founded his own political organization, the Liberty Lobby, and remained active in extreme-right ideological circles throughout his life. He began publishing anti-Semitic books such as The Inequality of the Races, Teutonic Unity, and Carto’s favorite, Imperium, with a fawning new introduction in which he called Yockey prophetic.
Carto’s book publishing was the backbone for his big picture project, making Holocaust revisionism seem as legitimate as possible. In 1978, he founded the Institute for Historical Review to spread its self-described “revisionist” view of the Holocaust through a glossy journal and conferences with like-minded “historians.” The IHR put forth a variety of so-called experts and evidence in service of the message that there was no Nazi genocide of European Jews. It used conspiracy theories, like questioning the ability of the ovens at Auschwitz-Birkenau to burn as many bodies as claimed, to try and give the organization the outward appearance of honest, on-the-level, “just asking questions” skepticism.
“It has to be recognized that at the heart of Holocaust denial, or any Jewish conspiracy theory, is anti-Semitism,” says Deborah Lipstadt, professor of Modern Jewish Studies and Holocaust Studies at Emory University and the author of numerous books including The Eichmann Trial and Denying the Holocaust, the first book-length investigation of the subject. “If you’re a dyed-in-the-wool anti-Semite who believes Jews are evil people who control the world, then you’ll believe anything. So if someone says Jews made it all up to get global sympathy, you’ll buy it. The conspiracy reinforces their anti-Semitic, or racist, world view.”
In 1979, the IHR held its first International Revisionist Convention in Los Angeles and followed up the conference with a provocative offer: a $50,000 reward for anyone who could prove Jews were slaughtered in the Holocaust. Carto and his associates assumed nobody would take them up on the offer. The failure to get a response would in turn prove the IHR’s “atrocity propaganda” thesis, which they would then use as a way to get into academic circles. If Holocaust denial were to become a field, IHR’s members wanted to be the leaders.
A year later, Mel Mermelstein became aware of the IHR and its efforts. He responded with indignant letters to local newspapers—IHR headquarters was in nearby Torrance, California—and The Jerusalem Post. As a comeback, , the IHR began to taunt Mermelstein. William David McCalden, the IHR’s director, wrote him a letter under an assumed name: Lewis Brandon, daring Mermelstein to try and claim the reward. If Mermelstein didn’t respond, the IHR would draw its own conclusions and report its findings to the mass media. There was just one caveat: The evidence Mermelstein presented must be brought before a U.S. criminal court and not the Nuremberg Trials.
“They wouldn’t stop harassing my father. They sent him hair in the mail and said his parents were alive and living under assumed names in Israel,” says Edie. “Dad was incensed, so he went to a lot of established Jewish organizations and they told him to leave it alone.” The taunts only fueled Mermelstein’s outrage, she recalls. “There was no way he was going to live with being smeared.”
Following the dictum to never forget, Mermelstein decided he had to do something. In November 1980, he enlisted Long Beach attorney William John Cox, who took the case on a pro bono basis. The partnership would have significant historical ramifications. Mermelstein’s doggedness in suing the IHR coupled with Cox’s crafty interpretation of the law would change Holocaust scholarship for good.
“I had never handled a civil case, but I certainly respected what Mel was doing,” says Cox, 77, from his California home. “I knew if I didn’t take it, they would try to discredit his life’s work.”
At first, Cox, who had a long history of quixotic campaigns in the public interest, including a tongue-in-cheek 1980 presidential campaign, thought his new client didn’t have any viable options. There was no defamatory statement against Mermelstein to refute, just an offer to prove the Holocaust existed. Had Mermelstein ignored the letter and the IHR called him a liar, that could have been considered defamation. But no false statements about Mermelstein existed, and since the 1964 Supreme Court Sullivan v. New York Times ruling, the bar for establishing standing in libel or slander cases has been high.
After their initial meeting, an idea came to Cox in his sleep. He awoke remembering the 1818 English case of Adams v. Lindsell. It established the “mailbox rule,” which states that an acceptance of an offer is considered valid as soon as it is dropped in the mail. The mailbox rule happens to be the law of California. By accepting the IHR’s offer, Mermelstein could later file a lawsuit for breach of contract against the organization in a local superior court.
Cox expected the case to wrap up in a few weeks. It wouldn’t.
On December 18, 1980, Cox sent Brandon and the IHR a completed questionnaire and claim for $50,000, along with a three-page declaration of Mermelstein’s experiences at Auschwitz and a copy of By Bread Alone. A month later, Brandon replied saying he was “deliberating,” then he sent another letter, asserting that the IHR was instead going to deal with another claim to the $50,000—that of famed Nazi hunter Simon Wiesenthal, not Mel Mermelstein. Cox had nailed it. The IHR breached their contract.
His next play was a stroke of legal genius. “Something was missing,” Cox later wrote in his memoir The Holocaust Case: Defeat of Denial. The lie about the Holocaust was so blatant, wrote Cox, that it should be a separate issue than a mere civil wrong, or tort.
“The thought occurred to me that such a fact would have to be so well-known that a court would be required to take judicial notice. One of the oldest precepts of English common law, judicial notice is based on the premise ‘that which is known need not be proven.’”
In essence, Cox was saying nobody has to prove that the sun rises in the east. Mermelstein filed suit against the IHR and included a cause of action titled “Injurious Denial of Established Fact.” It required the established fact of the Holocaust to be judicially noticed as a matter of law.
“Bill was thinking outside the box,” says Edie. “It was like getting a Mafia don on tax evasion.”
It wasn't easy to pin down the IHR during the discovery phase. Carto had decamped to Washington D.C., so Cox hired two retired homicide detectives to track his whereabouts. Carto was served on a D.C. sidewalk, but never showed for his deposition. Brandon, however, did. He’d been fired by Carto for making the “unauthorized” reward in the first place. He threw Carto under the train, saying his boss knew there was no evidence to refute Mermelstein, the offer was a publicity gimmick, and they had no intention of ever paying up.
Anxious for a ruling, Cox filed a pretrial motion for summary judgment. In preparation, his tiny legal team sought out preeminent historians to strengthen and deepen their argument. Cox himself made late night phone calls to Wiesenthal in Austria and Gideon Hauser, prosecutor of Adolf Eichmann, in Israel. Over time, the file of supporting evidence grew to over three-feet tall.
Even if it seemed like an open-and-shut case, though, Cox began having nightmares as the court date drew closer.
“There’s a scene in Marathon Man where the Dr. Mengele character is in New York City, in the jewelry district, and all of these survivors begin to recognize him,” he says. “They start running after him, yelling at him as he runs away. The week before this case, I had a dream like that. I’m in the city after defeat. Everywhere I go, Jews are chasing me, screaming ‘Six million victims and you lost the case!’ I was afraid the judge would set aside all of our motions and we’d head to trial with nothing.”
October 9, 1981, was Cox and Mermelstein’s moment. As Cox stood before Judge Johnson, he laid out his case for the Injurious Denial of Established Fact. The IHR had “slapped the plaintiff Mel Mermelstein in the face with this great lie,” he noted. “Where did the babies [of Auschwitz] go, Your Honor?…Where did the children go? They were not subject to labor….they were not there. They were put to death.”
Judge Johnson accepted the judicial notice of the fact that Jews were gassed to death at Auschwitz. Then he went even further and declared the Holocaust an indisputable fact.
“A judge, an American judge, stood up and said ‘Yes, the Holocaust is not subject to dispute,’” Mermelstein recounted via email. “That moment stands out in my mind. Now and forever after, the judicial notice stands.”
With that notice on the books, Los Angeles County Superior Court Judge Robert Wenke wouldn’t allow any evidence claiming the Holocaust never happened. The case itself wouldn’t wrap up until July 1985, when a settlement was reached ending Mermelstein’s civil suit against the IHR. The Holocaust deniers agreed to pay Mermelstein the $50,000 prize, an additional $50,000 in damages, and to issue a letter of apology.
By the time of the settlement, Mermelstein was represented by future celebrity attorney Gloria Allred. Shortly after Cox’s tort was accepted, he closed his office and moved on. The year he spent working with Mermelstein had taken its toll. His pro bono work left him heavily in debt, setting him back $45,000. Emotionally, it was even harder. After the case, Cox had to deal with intimidation and threats of violence. One anonymous late-night caller told him they just poured gasoline under his front door, and Carto filed a declaration personally calling out Cox and mentioning a loaded gun.
Although vindication was sweet, it wasn’t easy on the Mermelstein family either. “Litigation always takes its toll,” says Edie. “There was a lot of tension in the house.”
The case garnered a lot of media attention and was recreated in the 1991 TNT movie Never Forget, starring Leonard Nimoy, in his first non-Spock role in five years, as Mermelstein and Dabney Coleman as Cox. The film was nominated for a cable ACE award for best picture. Mel was proud, Edie thought it was well done, and Cox…well, a little too Hollywood for his tastes. He liked the courtroom scenes though; his personal director’s cut is on YouTube.
It’s been more than 35 years since Mermelstein heard a judge declare the Holocaust was real and its deniers are frauds. Sadly, the big lie persists and has gained steam in the digital age. A 2015 poll found that 20 percent of Americans believe “Jews still talk too much about what happened to them in the Holocaust.”
The hardcore deniers may now go by the softer “alt-right” designation, but leaders like Richard Spencer and Jason Kessler are peddling the same anti-Semitic tropes as Carto did in his day. Emboldened white supremacists are resurfacing, most notoriously at the 2017 Unite the Right rally in Charlottesville, Virginia, where protester Heather Heyer was mowed down and killed by a Nazi sympathizer. Multiple avowed Nazis and Holocaust deniers are running for public office. Even the Institute for Historical Review continues publishing in the 21st-century.
There will always be those who claim that there weren't 1.1 million people, 960,000 of them Jews, murdered at Auschwitz-Birkenau. Cox and Mermelstein showed the best defense is to take the sewer rats head on.
“Mel Mermelstein is important because he fought back against the bullies,” says Lipstadt. (Denial, a film based on her book History on Trial starring Rachel Weisz and Tom Wilkinson, was released in 2016.) He basically said ‘You people don’t scare me,’ and then hoisted them from their own petard. I did the same thing when I beat David Irving in a British court. He sued me for libel for calling him a Holocaust denier, but we proved he was falsifying history through historical and scientific evidence.”
Not surprisingly, Irving has been a featured speaker at multiple IHR events and his books are featured on their website’s homepage.
Mermelstein’s health is fading, but he outlived his antagonist. Willis Carto died in 2015 at 89, his commitment to denying the Holocaust as strong as ever.
Despite the horrors of his youth, Mermelstein has had a long, happy life. Jane is alive and well at 82; they celebrated 58 years together in March. After 53 years, he’s in the process of winding down his pallet manufacturing company. It’s housed the Auschwitz Study Foundation since it opened in 1972, and the Mermelstein family’s current aim is to keep it out of storage. Edie is working with Erin Grunwell, founder of the Freedom Writers Foundation, on raising funds for an Orange County Holocaust Museum to house the collection. She recently put together a video tour of his father’s true life work.
“I’ve been to Yad Vashem in Israel, the Holocaust Museums in D.C., the Museum of Tolerance here in L.A….My father's collection is different,” says Edie. “It’s guttural. It evokes a deep emotional response and leaves a lasting impression. It’s amazing to watch the reaction of the kids when dad explains that he was in Auschwitz at their age. He believes education is the key and wants [kids] to look the demon in the eye.”
Mel Mermelstein may not know how much time he has left, but he is comforted knowing he fulfilled his promise. He lived to tell.
“I honored my father, mother, brother and two sisters. There are so few of us still alive. I made a big impact for the survivors.”
*Editor's Note, August 28, 2018: A previous version of this article implied that Jews living in pre-war Hungary were not Hungarians, when, of course, they were. It's been edited to clarify that the Hungarian government outlawed sex between Jewish and non-Jewish Hungarians.