Denial [Movie Tie-in]

by Deborah E. Lipstadt

  With Evans in the witness box, Irving inevitably raised the topic of the Diary and declared that the lab’s conclusion regarding the ballpoint ink constituted an “ambiguous finding” and raised questions about the Diary’s authenticity. Evans insisted that there was nothing ambiguous about the finding. Judge Gray interrupted to ask Evans if it would be correct to conclude that the forensic report, rather than suggesting it was a forgery, actually confirmed it was authentic. “Because it says that there are some sections which were added subsequently, but by necessary inference [it] is saying that most of it was genuine and already there and not in ball point.” Evans agreed with Judge Gray’s formulation. The Dutch and the German criminal labs had both rejected the notion that whole pages were false “let alone the whole thing being fake or a novel.” Irving, sounding a bit miffed, protested, “Have I ever said that the whole thing was written in ball point pen?” Evan reminded him, “You said whole pages are written in ball point pen.” Judge Gray added, “You said it was a novel, Mr Irving, did you not?” Irving protested, once again: “The third version is a novel, my Lord.”2

  Evans suggested that any difference of opinion about precisely what Irving said about the diary could be resolved by reading the transcript of a 1993 television interview Irving had given: “To me the Anne Frank diaries are a romantic novel, rather like Gone With the Wind.” Irving insisted that the court hear the entire interview in order to get the context. Judge Gray’s response wondered, “How can the context really affect what you are saying which is that it is all made up?”

  An exasperated Rampton rose and protested “the most frightful waste of time. . . . I have been as patient as I possibly can be, but now I cannot sit here any longer.” He told Judge Gray that right before the trial, Irving had been on CNN. Rampton read from the transcript of the interview. “Interviewer: ‘Did you say that the Anne Frank diary was a forgery?’ Irving: ‘Guilty.’ Interviewer: ‘Is it a forgery?’ Irving: ‘No.’”

  Though Irving continued to argue about the Diary, Judge Gray was not anxious to hear more. “We have now had enough evidence on the Anne Frank diary. I think we will move on.”3

  COCKROACHES: A JUSTIFIABLE SLUR?

  Referring to the section of Evans’s report that delineated Irving’s highly derogatory statements about Jews, Irving asked Evans if anyone who criticized Jews was, ipso facto, an antisemite. Evans, referring to an October 1991 speech by Irving, declared, “I do think it is rather over the top to describe the Board of Deputies of British Jews [BOD] as cockroaches.” Irving paused for the laughter to subside before insisting that his “lurid language” was a response to the BOD’s attempt to stop publication of his books. He handed Evans the minutes of a BOD subcommittee meeting that had deliberated whether to complain to Irving’s publisher about his forthcoming book. Irving asked Evans, “[If] pressure was put on my publishers by this body . . . am I not entitled to use that kind of language to describe these people?” Evans pointed out that this was a meeting of a BOD subcommittee, which was attended by precisely five people and, most important, they decided to take no action.

  As Evans was explaining this, I noticed Heather calling Rampton’s attention to something on the BOD minutes. Rampton quickly rose from his seat. As soon as Judge Gray recognized him, he pointed out that the meeting was in December 1991. Irving made his “cockroach” comment in October 1991. He could not, therefore, have been responding to the BOD’s subcommittee meeting. Irving held up a large folio of documents about the supposed global campaign against him, and asked, “Will you accept that, on the balance of probabilities, there are other documents of that nature in that bundle?” Every lawyer around me groaned. Judge Gray articulated their sentiments: “Mr Irving, we must do better than that. . . . If there was in existence a document prior to what you said about the British Board of Deputies being cockroaches, which you say justifies your having said that, then put it to the witness. If you have not got [it] . . . move on.” Irving repeated his question: “If an author is aware that such a campaign is being conducted against him . . . is he entitled to use lurid language in private?” Judge Gray looked annoyed: “You have asked that question many times. . . . You have not established the factual premise for it. So, can you move to the next topic . . . ?”4 Irving, looking decidedly unhappy, complied.

  OUTER SPACE

  Evans, himself a consummate researcher, was particularly annoyed by the roadblocks Irving put in the way of other researchers who wanted to check his sources. This was glaringly clear in Irving’s handling of the testimony at Hitler’s 1924 trial. Rather than point the reader to the precise location of the document on which he based his rendition of events, Irving told readers that his version “is knitted together from eyewitness evidence at the [1924] trial.” In his source citation in the Pleadings, Irving cited the eight-thousand-page microfilm transcript without providing either microfilm frame numbers or dates. Consequently, Evans noted in his report, a researcher would have had to read the entire transcript to find the relevant sections.5

  Irving told Evans that his complaints were unjustified. Evans had used the printed edition of the transcript, which had page numbers, while he used the microfilm, which did not. Evans observed that Irving could have cited frame numbers. Irving responded, “If they do not have frame numbers then you cannot give frame number references.” Judge Gray demanded greater specificity: “Are you putting, Mr Irving, that these microfiche did not have frame reference numbers?” Irving removed glasses and, as he twirled them in his left hand, said to Judge Gray, “I . . . leave it exactly the way I said it, my Lord.” James looked up from the notes he had been making: “He just blew off the judge.” Judge Gray demanded, “What is the answer to my question?” Irving responded, “I put to the witness the possibility that it had no frame numbers in which case I would not have been able to quote them.” Judge Gray, who did not sound happy, asked again, “I am asking you a question and I think I am entitled to because I want to know how you are putting your case. Are you making it an allegation . . . that these particular microfiche did not have frame numbers?” Adopting a far more deferential tone, Irving said, “To be perfectly frank, my Lord, it is 12 years since I wrote the book and I cannot remember. But that would be one logical reason why I did not give frame numbers.”6 Judge Gray, a quizzical look on his face, let the matter rest.

  Later, Irving returned to the 1924 trial. In his report, Evans had severely criticized Irving for failing to inform his readers that Police Sergeant Hofmann, who had testified at Hitler’s trial and whose testimony was the main source of Irving’s information, was not only a Nazi Party member, but such a close affiliate of Hitler that the judge disqualified his testimony. Irving challenged Evans, “You suggest that I ought to have known that [Hofmann’s testimony was disqualified]?” Evans pointed out that it was in the transcript. Irving demanded, “What evidence do you have that I read those pages of the trial?” Judge Gray wanted more precision: “If your case is, Mr Irving, that you did not ever read Hofmann’s testimony, then you should put that because that would be an explanation.” Irving responded, “I hope that I was making that point, my Lord.” Judge Gray felt otherwise: “You were careful not to put it quite that way. You said: ‘Have you got any evidence that I had Hoffmann’s testimony in front of me?’ If your case is that you never read it, I think you should put that.” When Irving again challenged Evans to prove he had read the testimony, Rampton interjected, “My Lord, I am afraid I think again we are going out into outer space.” Rampton reminded Judge Gray that earlier in the trial, when he was cross-examining Irving about the 1924 trial, Irving had said, “I read the entire court transcript which was many thousands of pages. . . .” Irving—with a slight note of urgency in his voice—asked Judge Gray for permission to “clarify this matter”; Judge Gray seemed uninterested: “I think that bears out . . . the correctness of what I said to you. If your case was that you had never read the testimony, then you ought to have put it. But now it turns out that actually
you have already conceded that you read the whole thing.”

  Irving now argued that, given the length of the testimony, he could not be expected to notice all the details. Looking at Judge Gray, he asked, “Has your Lordship any idea of how many words there are on 8,000 pages of transcript?”7 Evans observed that Hofmann’s testimony was only five pages long.

  When the session ended, I said to Rampton and Heather, who were removing their robes and wigs, “Two weeks ago he boasted about having read every one of the 8,000 pages of testimony. Today he defended himself by saying it’s so many thousands of pages, how could he possibly remember what’s there? It’s like the elevator in Auschwitz. First, the problem is that it has no doors. Then the problem is that it has doors. Irving’s real problem is that for the first time he is being forced to explain his contradictions and he can’t.”

  A VERY SMALL WORLD

  The next day, I spotted Hebrew University professor Shlomo Aronson in the public gallery. Suddenly I remembered my promise to Seth and Tobias about trying to retrieve the manuscript Eichmann had written while in Israel. At the end of the session Aronson told me that the manuscript was in the National Archives, under the control of Attorney General Elyakhim Rubenstein. Daunted by the prospect of getting to Rubenstein, I was inclined to abandon any effort to get the manuscript, when Aronson told me that he attended law school with the attorney general. “Have Rampton write to Rubenstein—lawyer to lawyer—to request the manuscript. Fax that letter to me. I’ll make sure it gets to the attorney general.” I bid Aronson goodbye and told Rampton about his offer. Rampton looked decidedly skeptical about the entire endeavor. He reluctantly agreed to write and asked for the spelling of the attorney general’s name. “I think,” I said, “it’s R-U-B-E-N—” Rampton interrupted, “I do not write an attorney general if I don’t know precisely how to spell his name.” Feeling a bit sheepish, I promised to obtain the information. Walking out of the courtroom I said to a friend, “Rubenstein’s first name is Elyakhim. How the heck do you spell that?”

  Finding it difficult to dial up the Internet to retrieve this information, I decided to call my friend Roberta, who worked for Israeli prime minister Ehud Barak. I assumed she would know the proper spelling of Rubenstein’s name. Her husband Stuart is a well-known journalist, whom I’ve known since our teenage days at summer camp. He got on the extension and the three of us had a long conversation about the trial. Finally, warning them that I had a weird question, I asked for the spelling of Rubenstein’s name. When they heard why I wanted it, Stuart laughed. “You can do this far more expeditiously. My brother Joshua is his advisor.” Within a few minutes I was on the phone with Joshua. “My guess is that he would be willing to release it. He’s talked about your trial. Fax me a letter. I will put it on his desk as soon as I receive it.” Early the next morning I called Rampton: “Rubenstein spells his name with an ‘E.’ Here’s his personal fax number. Your letter will be on his desk as soon as it arrives. He’ll probably say ‘Yes.’” Rampton sounded impressed: “How did you manage that?” Rather than explain the path from me to Aronson to Roberta to Stuart to Joshua to Rubenstein, I said, “It’s a small world. It’s a tiny Jewish world. And it’s a microscopic Israeli world.”

  THE MADNESS OF KRISTALLNACHT

  Irving was particularly disturbed by Evans’s accusation that he had whitewashed Hitler’s role in Kristallnacht and contended that he had, in fact, criticized the German leader. To prove his point, Irving read from his section on the pogrom in Goebbels: Mastermind of the Third Reich: “Hitler made no attempt to halt this inhumanity. He stood by, and thus deserved the odium that now fell on all Germany.” For a moment it sounded as if Irving might have caught Evans in a major error. While Evans paged through Goebbels looking for the original quote, Irving pivoted to look at the gallery with a small smile on his face. When Evans looked up from his report, he too was smiling. He suggested that he read the preceding sentence: “20,000 Jews were already loaded onto [sic] and transported to the concentration camps at Dachau, Buchenwald, and Oranienburg. Hitler made no attempt to halt this inhumanity. He stood by and . . .” Evans’s point was obvious. Irving had written that Hitler stood by and for this deserved the odium, but he had been referring to Hitler’s behavior after the event, not during it. He turned to Irving, something he had rarely done since his first disastrous day on the stand, and like a teacher addressing a recalcitrant student, said: “He did not stand by, Mr Irving, he ordered the whole thing.”8

  Irving, attempting to demonstrate that Hitler tried to stop the outbreaks when he learned of them, argued that the telex sent at 2.56 A.M. on November 10, the night of Kristallnacht, which called for an end to arson was intended to “halt the madness.”9* Evans read the telex: “Arson or the laying of fire in Jewish shops or the like may not . . . take place under any circumstances.” Irving looked pleased, as if this proved his point: “Pretty emphatic, is it not?” Evans agreed: “Yes. What it is saying is that nobody is to set light to Jewish shops . . . or similar kinds of premises.” Then he continued: “It is not saying that nobody is to arrest the Jews. It is not saying that nobody should smash the shops up. It is not saying that nobody should smash up the apartments and houses of Jews.” Irving interrupted, “Professor, I have not asked you what it does not say.” Ignoring Irving, Evans plowed on: “It does not say that nobody should commit arson against many hundreds of synagogues.”

  When Irving again insisted that the telegram was a call for cessation of the attacks, Evans disdainfully described Irving’s comment as a “completely illegitimate misinterpretation and manipulation of this text. . . . Hitler is saying here: ‘Go ahead with burning down synagogues. Go ahead with wrecking Jewish shops and smashing up the interiors. Go ahead with arresting 20,000 people. Go ahead with smashing up Jewish apartments, destroying the furniture, chucking it out of the window, throwing some of the inhabitants out of the window. Go ahead with all of that, but don’t commit arson on Jewish shops or similar premises.’”10 As Evans spoke, one by one the defense team abandoned the documents they were reading and notes they were making. They turned to the witness box. I glanced at Anthony. He too was staring at the witness box and shaking his head in affirmation.

  THE DIMENSIONS OF A DITCH

  Irving returned to the testimony of Walter Bruns, the German general whom the British had clandestinely taped describing to his fellow POWs the mass shootings at Riga in November 1941. Bruns had described the ditches into which 27,000 Jews were gunned as 24 meters long and 3 meters wide. Irving contended that such ditches could have held only a few thousand people and that the number of 27,000 was, therefore, a vast exaggeration. Evans pointed out that Bruns did not provide the depth of the pits, rendering any calculations meaningless.

  Irving, insisting he had expertise about ditches because he dug them to pay for his education, introduced a photograph that showed relatively shallow three-meter-wide pits with soldiers standing nearby. This photo, he suggested, demonstrated that the ditches were not large enough to accommodate so many victims. Evans examined the photo and then, a quizzical look on his face, asked for its origins. Irving acknowledged that it was of British soldiers at Bergen-Belsen or Buchenwald, where “victims of Nazi atrocities” were being buried. However, he continued, it showed “how deep you can dig a pit in circumstances like this.” Evans scowled and declared that a picture of ditches dug by British troops had no relevance to pits at Riga. He again insisted that a pit could be any depth. Irving wondered if that answer was “your expert evidence as a pit digger or can we apply some common sense?” The question precipitated the following exchange:

  IRVING: Would you agree, as General Bruns describes, the ditch was 24 yards long and 3 metres wide, and if it was 2 metres deep, that would be 144 cubic metres?

  EVANS: . . . No, I do not. They could have dug it any depth they wanted to.

  IRVING: We will ignore that remark for the moment and continue with this calculation, . . . So if it was 2 metres deep and if it had straigh
t sides and if there was no back fill—

  EVANS: That is three “ifs,” Mr Irving.

  IRVING: —would you stop interrupting—you would get 1,500 bodies into that pit. . . . So if it was another metre deep, you would get another 750 in, so you can do an order of magnitude calculation, can you?

  EVANS: On the basis of those four “ifs,” yes, you can do any calculation you like.

  IRVING: So you can do a ball park calculation of two or three pits of that kind of size and magnitude would hold of the order of, say, three to 7,000 bodies?

  EVANS: Yes, on the basis of those four hypotheticals, yes.

  IRVING: Did you bother to do such a check sum before you criticised me?

  EVANS: . . . My criticism is that there is no evidence of the depth of the pits. You do not provide any. You simply make all these if, if, if assumptions and then somehow treat them as facts.

  At that point, most people—myself included—were finding it impossible to keep a straight face. I felt as it I were watching Monty Python’s Flying Circus. Then Evans began to lecture Irving: “This is a systematic attempt to undermine the figure given of 27,800 Jews . . . This is typical of your minimisation of the statistics of the numbers of Jews killed in any number of instances.” I stopped laughing, as did most everyone in the room. Deeply embarrassed that I had found these pits a source of amusement, I began to envision what, in fact, took place in them. The Germans determined that the ditches could accommodate more people if the victims lay down, head to toe, on top of the bodies of those who had been killed before them. They called this Sardinenpackung, or “sardine packing.” They also learned that if an adult was holding a child two bullets were necessary to ensure that both were killed. My reverie was interrupted by Judge Gray’s order: “On to the next point, Mr Irving. I think we have exhausted that.”11