Irving v. Lipstadt


Holocaust Denial on Trial, Trial Transcripts, Day 32: Electronic Edition

Pages 151 - 155 of 222

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    The director of the Yad Vashem archives has
 1was, upon learning the degree to which the case for the
 2mass gassings at Auschwitz relies on eyewitness evidence,
 3rather than on any firmer sources. Your Lordship will
 4remember perhaps the exchange I had with Professor Donald
 5Watt, professor emeritus at the London School of
 6Economics, a distinguished diplomatic historian, early on
 7in the trial, about the value of different categories of
 8evidence. I will just summarize that. I asked him, I
 9said, Professor I was not going to ask you about----
10 MR JUSTICE GRAY:     He said it all depends, did he not, really?
11Is that unfair as a summary?
12 MR IRVING:     Well, my Lord, I draw your eyes straight down to
13the second line from the bottom. Professor Watt answers
14all of that, saying:
15     The Bletchley Park intercepts, in so far as they
16are complete, are always regarded as the most reliable
17because there is no evidence that the dispatcher was aware
18that his messages could be decoded by us (by the British),
19and therefore he would put truth in them".
20     This supports my view, my Lord, that eyewitness
21evidence is less credible than forensic evidence and the
22Bletchley Park intercepts. I do not completely ignore
23eyewitness evidence, but I feel entitled to discount it
24when it is contradicted by the more reliable evidence
25which should then prevail.
26     I mention the forensic evidence and that brings

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 1us seamlessly to the Leuchter report.
 2     I am criticised by the Defendants for having
 3relied initially on what is called the Leuchter report,
 41988. At the time they levelled their criticism at me the
 5Defendants appeared to have been unaware that subsequent
 6and more able investigations were conducted by both
 7American and Polish researchers. The tests were in other
 8words replicated.
 9     First, the Leuchter report. In 1988 I was
10introduced by defence counsel at the Canadian trial of
11Ernst Zundel to the findings made by a reputable firm of
12American forensic analysts of samples extracted from the
13fabric of various buildings at Auschwitz and Birkenau by
14Fred Leuchter, who was at that time a professional
15American execution technology consultant. These and his
16investigations at the Maidanek site formed the backbone of
17his engineering report. Since there have been tendentious
18statements about why the Leuchter report was not admitted
19in evidence at that trial in Canada I have studied the
20transcripts of that trial. It emerges that engineering
21reports are not generally admissible under Canadian rules
22of evidence unless both parties consent. In this case the
23Crown did not consent. As Mr Justice Thomas explained,
24"I get engineering reports all the time (that is in civil
25cases). That does not make them admissible, because they
26have prepared reports. They (the witnesses) go in the

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 1box, they are qualified experts and they testify". So the
 2non-admission of the report by Mr Justice Thomas was no
 3reflection on the worth of the report or on the
 4qualifications of the witness.
 5     My Lord, I have to go in some detail into the
 6Leuchter report because of the criticisms levelled at me
 7for having been swayed by it.
 8 MR JUSTICE GRAY:     Yes. I do not disagree with that.
 9 MR IRVING:     Mr Leuchter testified on April 20th and 21st 1988
10as an expert in gas chamber technology. He had inspected
11the three sites (Auschwitz/Birkenau and Maidanek) in
12February 1988 and he had taken samples which were
13subsequent sent for analysis by a qualified analytical
14chemist in the United States, a Dr James Roth of Cornell
15University, who was not told where the samples had come
16from. His firm Alpha Laboratories, were told on the test
17certificates only that the samples were from brickwork.
18Mr Justice Thomas ruled that Leuchter would give oral
19evidence but that the report itself should not be filed.
20He held further that Mr Leuchter was not a chemist or a
21toxicologist, which are findings, of course, that he is
22quite entitled to make, but he agreed that Mr Leuchter was
23an engineer because he had made himself an engineer in a
24very limited field.
25     A summary of the rest of the judge's findings
26was that Leuchter was not capable in law of giving the

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 1expert opinion that there were never any gassings or
 2exterminations carried on in the facilities from which he
 3took the samples. For the same reasons he was not capable
 4of testifying regarding the results of the analysis,
 5because he was not a toxicologist in other words. He was
 6restricted to testifying as to the actual extraction of
 7the samples from the buildings and his own observations on
 8the feasibility of the buildings that he had examined
 9being used as gas chambers.
10     So the Defendant was wrong to write on page 164
11of her book, "The judge ruled that Leuchter could not
12serve as an expert witness on the construction and
13function of the gas chambers". To give evidence in a
14criminal trial Mr Leuchter must have been accepted as an
15expert witness. Further, Professor Lipstadt stated on
16pages 164 of her book, and 165, "The judge's finding as to
17Leuchter's suitability to comment on questions of
18engineering was unequivocal". In fact, the judge's
19findings referred only to his lack of qualifications to
20testify on the results of the laboratory tests for cyanide
21and iron, because that was Dr Roth's area, and he himself
22(Roth) gave testimony on those matters. On page 169
23Professor Lipstadt insists: "The exposure to the elements
24lessen the presence of the hydrogen cyanide ... Nor did
25Leuchter seem to consider that the building had been
26exposed to the elements for more than 40 years so that

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 1cyanide gas residue could have been obliterated. He also
 2took samples from a floor that had been washed regularly
 3by museum staff". Dr Roth however testified under oath
 4that the formation of Prussian blue, which is a cyanide
 5compound, was an accumulative reaction, that it augmented
 6with each exposure to the gas, and that it did not
 7normally disappear -- in other words, could not be just
 8washed away -- unless physically removed by sand blasting
 9or grinding down.
10     Roth seems then to have changed his mind, to
11judge by the television film "MR DEATH" which I believe is
12shortly to be shown on Channel 4, and upon which film both
13I and learned counsel in the current action partially
14rely. Zundel's counsel comments, "He (Roth) obviously is
15frightened now", and no wonder, considering what
16subsequently was inflicted on Mr Leuchter. Your Lordship
17will remember that, in order to destroy Roth's absurd
18argument, which was quoted to the court by Mr Rampton,
19learned counsel, that the Prussian blue stain would have
20penetrated only a few microns into the brickwork.
21I showed a photograph of the stain penetrating right
22through the brick work to the outside face of one of the
23cyanide fumigation chambers, where it has been exposed to
24sun, wind and rain for over 50 years, and where it is
25still visible, as deep and blue as ever today.
26Crematorium II has been protected from these outside

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