Irving v. Lipstadt Trial for Movie Theaters, Part I

Alison Thompson and Mark Gooder form Cornerstone Films

Ms. Alison Thompson
Mr. Mark Gooder
Cornerstone Films
c/o Sunray Films
12 Sunray Avenue Herne Hill
London
SE24 9PY
[email protected]
Tel: +44 (0)758 033 758

Hello Ms. Thompson
and Mr. Gooder

I read that your company is handling international sales for a new movie based on Deborah Lipstadt’s book History on Trial: My Day in Court with a Holocaust Denier. The movie is called Denial, and Cornerstone Films has promoted the movie at the Cannes Film Festival as “a powerful story about the legal and personal battle Deborah Lipstadt fought to defend the veracity of historical facts.” History on Trial is Lipstadt’s account of her long vendetta against author David Irving, culminating in a libel action tried in a London court in 2000 before Judge Charles Gray. Irving had sued Lipstadt and Penguin Books, the publisher of Lipstadt’s earlier book, Denying the Holocaust: the Growing Assault on Truth and Memory. I am writing a two-part letter to comment on History on Trial prior to the release of the movie. The first letter is a general analysis of the book. The second letter is a discussion of some of the many historical issues raised at the trial.

A Latter-Day Heroine of Truly Biblical Proportions

While enthusiastic promotion is common on book covers, History on Trial hits new heights; favorable comments run off the cover and fill several pages of the book. We are told in Martin Gilbert’s paean, “A London courtroom was the scene of a titanic struggle between the forces of historical distortion and those who upheld the truth…” and, from the Australian Jewish News, “Like her namesake from the book of Judges, Lipstadt can rightly be considered a latter-day Jewish heroine of truly biblical proportions…” It is informative to compare what is written in History on Trial with the trial transcript, the Judgment, and other facts about the case.

Undisputed Defamation

A point, barely mentioned in the book, is that Lipstadt was found by Judge Gray to have actually defamed Irving. In his massive 333-page Ruling, Gray wrote:

“The Defendants made no attempt to prove the truth of Lipstadt’s claim that Irving was scheduled to speak at an anti-Zionist conference in Switzerland in 1992, which was also to be attended by various representatives of terrorist organizations such as Hezbollah and Hamas. Nor did they seek to justify Lipstadt’s claim that Irving has a self-portrait by Hitler hanging over his desk. Furthermore the Defendants have, as I have held, failed in their attempt to justify the defamatory imputations made against Irving in relation to the Goebbels diaries in the Moscow archive. If Irving had stuck to these clear defamations by Lipstadt and had not gone off on his classification as a ‘Denier,’ he would have won his case.”

The Judgment can be read at tinyurl.com/ouxodf7. The praise that Judge Gray had for Irving as a military historian and, importantly, his rejection of the opinion of defendants’ expert Richard Evans underscore the idea that Irving would have prevailed in a “normal” trial:

“My assessment is that, as a military historian, Irving has much to commend him. For his works of military history Irving has undertaken thorough and painstaking research into the archives. He has discovered and disclosed to historians and others many documents which, but for his efforts, might have remained unnoticed for years. It was plain from the way in which he conducted his case and dealt with a sustained and penetrating cross-examination that his knowledge of World War 2 is unparalleled. His mastery of the detail of the historical documents is remarkable. He is beyond question able and intelligent. He was invariably quick to spot the significance of documents which he had not previously seen. Moreover he writes his military history in a clear and vivid style. I accept the favorable assessment by Professor Watt and Sir John Keegan of the calibre of Irving’s military history and reject as too sweeping the negative assessment of Evans.” Emphasis added.

Why Abandon a Winning Case?

How Irving came to be arguing various esoteric facts about Auschwitz was a strange turn of legal events. Irving opened the case telling the court:

“I have never held myself out to be a Holocaust expert, nor have I written books about what is now called the Holocaust.”

Justice Charles Gray

For her part Lipstadt told an interviewer shortly after the trial:

“I wasn’t proving how many people were murdered at Auschwitz. But when they say only 68,000 people were killed — it didn’t happen. We weren’t proving how many people were killed…”

And Judge Gray specifically stated:

“It is no part of my function to attempt to make findings as to what actually happened during the Nazi regime.”

Why did Irving, Lipstadt and Judge Gray all end up trying facts they said they were not concerned with or even incompetent to judge?

Outgunned and Outflanked

A striking fact about Irving v. Penguin, et al. was the vast disparity in economic resources between the parties. The trial was not a “titanic struggle” but a David vs. Goliath affair, with David Irving in the role of David and Penguin Books as Goliath. The disparity showed itself in the legal team each side marshaled. Lipstadt hired British lawyer Anthony Julius, while Penguin hired libel experts Kevin Bays and Mark Bateman of media law firm Davenport Lyons. Together they briefed the barrister, Richard Rampton. Penguin also retained Heather Rogers as junior barrister. Lipstadt also engaged the firm of Mishcon de Rey. A veritable phalanx of solicitors, legal talent, staff and barristers represented the defendants. Irving, on the other hand, was unable to retain either counsel or barrister. He would show up at court alone and with his papers carried in a plastic shopping bag.

The importance of competent legal representation in complex litigation is hard to overstate. Lipstadt herself repeatedly claims she was confused or didn’t understand what was going on in the courtroom even after explanations by her legal team. While Irving was far more competent than Lipstadt, he lacked a strategic perspective. Defendants’ legal team realized that Irving’s weaknesses lay with his various flamboyant statements about the Holocaust and made them the main issue of the trial. They adroitly steered the case away from the original defamation of hobnobbing with terrorists and decorating an office with portraits of Hitler, and toward the thorny question of whether Irving was a “Holocaust Denier.” Irving naively followed along.

One wonders how an English historian like Irving could have made this kind of mistake. Not only did the defamation case of Wilde v. Queensberry serve as a cautionary light, but so too did the contemporary case of Aitken v. Preston and Others. Under English law, a plaintiff in a defamation case needs to be quite sure of a spotless record before he makes his reputation a matter of litigation. This is particularly true when the alleged defamation concerns criminal conduct. Jonathan Aitken ended up in prison as a result of his law suit against the Guardian newspaper, as issues relating to corruption evolved into questions of perjury and obstruction of justice. Oscar Wilde’s indignation at being called a “posing sodomite” morphed into a criminal conviction for gross indecency. Judge Gray’s ruling that Irving was, in fact, a “Holocaust Denier” cleared the way for Irving’s criminal prosecution for being a Holocaust Denier five years later in Austria.

Specialist Witnesses Do Not Come Cheap

As the case expanded into a wide-ranging questioning of Irving’s competence as a historian, the power of a large purse was shown in the purchase of expert testimony. The defense spared no expense. Richard J. Evans was hired to justify, ex post facto, Lipstadt’s comment that Irving “falsified history.” Evans and his team spent two years examining Irving’s lifework in painful detail, and presented a 740-page report for the defense. He came up with 19 possible errors, as discussed below. An additional sum of over £400,000 was paid to 13 other witnesses who were brought into court, one after the other, to joust with Irving. The expense was so large that The London Times took note and printed an article entitled “Specialist witnesses do not come cheap,” mentioning the huge costs of “expert witnesses” in the case. The Australian Jewish News must envision latter-day Biblical heroines as accompanied by their own legal department, PR spokesmen, and troupe of spin doctors.

Dr. Richard Evans

You Are Our Witness

Lipstadt fills her book with self-praise as lavish as that on the cover. Her favorite gambit is to recount being approached by a stranger who thanks her and often blesses her. After a tourist trip to East Jerusalem in 1967, she claims the border guards tell each other, “She’s got guts.” In Russia in 1972, old Jewish women kiss her hand. Of course, there is the mandatory “Survivor” who approaches Lipstadt during the trial:

“You are fighting for us. You are our witness.”

This is ironic since Lipstadt never was a witness at the trial. She never gave a statement to the press. While the promotional material for the movie claims that Lipstadt was engaged in a personal battle to defend the veracity of historical facts, she never took advantage of the opportunity to face David Irving in the courtroom. Instead, Lipstadt relied on her phalanx of attorneys and experts to defend her prior comments on Irving. By her own account, Lipstadt was remarkably passive throughout the trial; often not understanding what was going in the court or “blindsided” by her attorney’s actions. She contributed nothing to the defense. She even seems confused about the number of “recreated” gas chambers at Auschwitz, and the location of structural features in buildings.

High School Diary

Instead, History on Trial is filled with a detailed, blow-by-blow, in-depth, comprehensive recounting of her emotional state during the trial; how she “almost fell out of her chair” at some remark Irving made, how some other comment of Irving’s “left me reeling,” or how a favorable remark to Irving by Judge Gray sent her into a spasm of worry. She giggles at cartoons of Irving drawn by her attorneys. She augments her emotional drama with personal comments: Flattering for her friends and nasty for Irving and his supporters. Her friends hold spirited discussions about Rachel Carson and J.D. Salinger, drink 1995 Pommard or 1992 Clos de La Roche and play classical music on the piano perfectly. Their offices have “the familiar chaos of a creative mind at work.” They are “easygoing, kind, unpretentious… but can be tough.” Her friends look like “young professors” or “graduate students.” On the other hand, David Irving is noted to have, “rough features… a rather blotchy complexion and unbelievably large hands.” Dealing with Irving is compared to stepping into shit. A female supporter of Irving is noted as having a “bouffant hairdo” and given the name “Brunhilda.” An attorney who represented Irving (on his appeal) is described as having “a round, very white, soft pudgy face, a thick neck, and as I soon discovered, a high-pitched nasal voice.” Even two prominent British historians who publicly defended Irving as a historian are trashed. With breathless indignation, History on Trial’s Introduction demands:

Deeply Troubled

This paranoid critical streak runs throughout the book. She is upset that Christians got to go in and out of the Mandelbaum Gate to visit Bethlehem on Christmas Day while Jews could not. She goes to the British Museum just to see the Assyrian exhibit because:

“Once the Assyrians tried to destroy the Jewish people. Today their remnant is in museums.”

Shakespeare’s Merchant of Venice offends her, and she admits that she is “deeply troubled by intermarriage between Jews and non-Jews.” Ironically, Lipstadt writes that she is “intrigued by what scholars called the ‘paranoid style in American politics,’ an American susceptibility to all sorts of conspiracy theories, particularly those that fostered prejudice and antisemitism.” Paranoid politics fills her blog: the Arab headdress (the kaffiah) has “become a symbol of international terrorism.” There are stories of violence against women perpetrated by Muslims, general anti-Muslim comments, and attacks on Jimmy Carter for “dwell[ing] on the Palestinian refugee experience:” She quotes the smear:

“But the clearest endorsement of terror as a legitimate instrument of political bargaining came from former President Jimmy Carter.”

A Tour de Force

In contrast to the do-nothing Lipstadt, the trial was very much a personal battle for Irving. He was, along with being his own legal counsel, his own barrister, his own expert on a vast array of historical material, and his own PR person, a witness in the trial. Day after day, for 31 days, he personally defended his case. It was an impressive tour de force.

How Are Sales?

I have to wonder why anyone would put money into a movie based on Lipstadt’s book.

The only dramatic character is Irving; brilliant, arrogant, obnoxious, muttering anti-Semitic and racist things, and he loses his case. He is an old lion at bay. Lipstadt comes across as paranoid, obsessed with Jewish identity, her own minute-by-minute emotions, and not particularly honest with the facts. I have to wonder how much Denier is going to cost, and if anyone is taking up Cornerstone Films’ attempts to market the film.

Yours for honesty in history,

David Merlin
Committee for Open Debate on the Holocaust