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Facts, allegations, and judicial notice

• Submitted to the California Superior Court in the Case, Mermelstein vs. IHR et al., by COUNSEL FOR DEFENDANTS

Introduction

The defendants in the above-entitled cause respectfully submit the following Points and Authorities, and the appended Declaration of Mark Edward Weber, in opposition to the Plaintiff’s Request that Court take Judicial Notice of the fact that Jews were gassed at Auschwitz.

Argument

The question whether Jews were gassed at Auschwitz is not susceptible to judicial notice.

Judicial notice may not be taken of any matter unless authorized or required by law. Deering’s Annotated Evidence Code, Section 450. This is true even though, to the judge, the fact may appear to be indisputable. Varcoe v. Lee, 180 C. 338, 181 P. 223 (Cal. l9l9).

The California Evidence Code sets forth certain matters which must be or may be, judicially noticed. Section 451 (f) mandates judicial notice of facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute. Section 452 (h) permits judicial notice of facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.

It is commonly understood that judicial notice is not to be used to resolve the disputed issues of a case, but rather is a way of avoiding time-wasting and expense in the proof of matters which are so obvious and indisputable as to necessitate no proof. That the moon was full on a certain date, or that in California the sun is always higher in the sky at noon than at dawn, or that Napoleon Bonaparte once ruled France. Are facts that fall in that category. But the hazards of judicial notice are illustrated by the ease with which judges might at one time have taken judicial notice (to the great detriment of pioneering searchers for truth) that the earth is flat, that the earth does not orbit the sun, that the application of leeches is the best cure for fever, that humanity has existed for only a few thousand years, or that witches commonly cause the failure of crops and the drying of cows. Examples of this kind demonstrate that a debated issue, though most of the population stand on one side and only a tiny minority on the other, should not be resolved by judicial notice. This is particularly true where the treacherous shoals of “that huge Mississippi of falsehood called history” (Matthew Arnold) are concerned.

The alleged historical event which the plaintiff asks this Court to take judicial notice of is at this time heatedly disputed by a number of researchers. Those researchers substantiate their argument with objective evidence, as is amply shown in the Declaration of Mark Edward Weber annexed hereto. For example, although the plaintiff and some other inmates present at Auschwitz-Birkenau during the summer of 1944 state that the crematoria belched smoke and flames day and night during that period, Allied aerial photographs taken on various days during the same period show nothing issuing from those chimneys at any time.

In the deposition of Melvin Mermelstein, taken on May 27, 1981, the plaintiff states that he saw at Birkenau four chimneys spewing red flames (page 34); that he saw members of his family go into “gas chamber No. 5,” where they were gassed and cremated (page 37); that he was 40 or 50 feet from the entrance to “the gas chambers” that his relatives entered (page 46); that gas chamber No. 5 was underground (page 47); and that there was one chimney on gas chamber No. 5 (pages 47 and 116). The plaintiff’s claims are contradicted by a report (The Holocaust Revisited: A Retrospective Analysis of the Auschwitz-Birkenau Extermination Complex by Central Intelligence Agency Photoanalysts, Dino A. Brugioni and Robert G. Poirier) published in 1979 after the CIA turned over to the National Archives aerial reconnaissance photographs taken of Auschwitz-Birkenau between April 4, 1944 and January 14, 1945. (It should be noted that Brugioni and Poirier make the assumption, in no way warranted by the photographs they are analyzing, that gas chambers existed at Auschwitz-Birkenau; those who deny that there were any gas chambers maintain that the facilities in question were crematoria.)

On page 12 of The Holocaust Revisited, beneath a photograph of facilities 4 and 5, the author states:

The imagery acquired on 13 September 1944 provides a unique view of Gas Chambers and Crematoria IV and V (Photo 7). Located among the trees of the “Birch Wood,” these facilities could not be seen by surviving prisoners in the camp. They were of a different design than Gas Chambers I and II; they had two rather than one chimney each, and were built totally above the ground rather than having underground sections. (Emphasis added.)

The photographs reproduced in the CIA report show all four of the Birkenau crematoria (i.e. numbers 2 through 5) to be surrounded by fencing and landscaping which would have made it impossible for anyone outside the enclosed areas to watch people inside, as the plaintiff claims that he did for some two hours at dawn on May 22, 1944.

Such discrepancies between objective evidence and the plaintiff’s claims should alone be sufficient to prevent the taking of judicial notice of the claim.

Jean-Jacques Rousseau rose to prominence by demonstrating in a great debate in Paris (1744) That the “falsifying of history had done more to retard than to advance human welfare.” (Jennings Wise). All societies whether by design or error have their historical myths and misconceptions. The plaintiff is part of a movement to institutionalize and transform into sacrosanct dogma a version of history which a growing number of other people sincerely and seriously dispute. When the photo-analysts Brugioni and Poinier wrote about “gas chambers” it was because they accepted the popular version of history which the plaintiff wishes to perpetuate and were no doubt unaware that there was another side to the story. It was not because the aerial photographs themselves gave evidence of people being exterminated in gas chambers. On the contrary, during the days when the extermination process was supposed to be at its height, the pictures show no people at all in the vicinity of the “gas chambers,” no lines of people on the neatly landscaped grounds of those chimneyed facilities, and never any smoke or flame issuing from those chimneys (four chimneys at Birkenau accordingly to the plaintiff, six according to photographic evidence). The only lines of people are in other parts of the camps-the registration area, for example. The original analysts of the same photographs during World War Two did not see gas chambers or an extermination camp at Auschwitz-Birkenau for the simple reason that the photographs themselves, viewed with an unbiased eye, give not even a hint of such terrible things. Viewed with an objective eye today, the same photographs are outstanding evidence that AuschwitoBirkenau was not — contrary to the plaintiff’s contention — a death factory, belching flames day and night as it consumed millions of victims.

The defendants respectfully submit that the plaintiff is attempting to enlist the authority and prestige of this Court for the illegitimate purpose of placing its imprimatur on a version of past events which is currently under heavy and well-supported attack. To make the matter worse, the assertions on which the plaintiff asks the Court to take judicial notice are irrelevant to all imaginably viable issues of this lawsuit. (Defendants do not admit there are any issues which would stand in the way of a summary judgment in their favor.)

The doctrine of judicial notice was adopted as a judicial shortcut to avoid necessity for the formal introduction of evidence in certain cases where there is no real need for such evidence. Before a court will take judicial notice of any fact, however, that fact must be a matter of common and general knowledge well-established and authoritatively settled, not doubtful or uncertain. Communist Party of the United States of America v. Peek, 20 C. 2d 536, 546 (Superior Court of Los Angeles County, 1942)

In Communist Party v. Peek the issue was whether the court should take judicial notice of the assertion that the Communist Party advocates force and violence. The court refused to take judicial notice, pointing with approval to the Washington supreme court’s refusal to take judicial notice of the same “fact for the reason that the litigants denied it.” 20 C. 2d 547, citing State v. Reeves, 106 P. 2d 729. The Superior Court of Los Angeles strongly implied that the denial of an alleged fact by a party to a lawsuit was alone sufficient to persuade a court not to take judicial notice of the alleged fact. 20 C. 2d 548.

In further support of its holding the court said at 546-547:

As was pointed out in Varcoe v. Lee, 180 Cal. 338, 344 (181 Pac. 223), “if there were any possibility of dispute” the fact cannot be judicially noticed; and again (p. 345): “It is truly said that the power of judicial notice is as to matters claimed to be matters of general knowledge one to be used with caution. If there is any doubt whatever either as to the fact itself or as to its being a matter of common knowledge evidence should be required.”

In Weitzenkorn v. Lesser, 40 C. 2d 778, 256 P. 2d 947 (Cal. 1953), a case cited by the plaintiff, the court quoted some of the same statements set forth above, and went on to refuse to take judicial notice “of the contents of published books in deciding whether Weitzenkorn’s claim of originality has merit.” 40 C 2d at 787.

Another case cited in the plaintiff’s argument is Galloway v. Moreno,183 C.A. 2d 804, 7 Cal. Rptr. 349 (1960). There it was also concluded that the court could not take judicial notice as requested by one of the parties. Two cases summarized by the plaintiff, Frankel’s Estate, 92 N.Y. Supp. 2d 30 (1949), and Siusis' Estate. 95 N.Y. Supp. 2d 48 (1950), both involved the determination that certain Europeans who had be missing since the wartime period of the 1940’s could be presumed dead. It does not appear in either case that the taking of judicial notice was contested. The matters of which judicial notice was taken in those estate cases were not the same as the allegation of which the plaintiff asks this Court to take judicial notice. Besides, what may be a proper subject of judicial notice at a particular time or at a particular place may not be so at a different time or different place. Varcoe v. Lee, supra.

The plaintiff’s request for the taking of judicial notice should be denied because it concerns a subject which is uncertain and disputable. Perhaps in no area of human knowledge are uncertainty and the need for correction more certain than in history.

“What is history but a fable agreed upon?” Napoleon Bonaparte, Sayings.

“History, a distillation of rumour…” Carlyle, The French Revolution.

“A fair-minded man, when reading history, is occupied almost entirely with refuting it.” Voltaire, Essai sur Me moeurs.