On Mon, 10 Sep 2001 13:45:19 GMT, [email protected] (Keith Henson)
(to page 100)
1 MR. SCHWARZ: May the People inquire, does the Court,
2 want to go through each separate posting together?
3 THE COURT: I think we'd best.
4 MR. SCHWARZ: Okay. Thank you, your Honor.
5 Number 7, your Honor.
6 THE COURT: Okay.
7 MR. SCHWARZ: This would be deposition Exhibit
8 Number 65.
9 THE COURT: Okay.
10 MR. SCHWARZ: The Court will note it is identical.
11 THE COURT: Well, the Court can't note that. I will
12 accept somebody's representation. Mr. Harr, have you read the
13 documents? Have you compared them?
14 MR. HARR: I haven't compared what he brought here
15 today, your Honor.
16 THE COURT: Do you accept the District Attorney's
17 representation that one is a copy of the other?
18 MR. HARR: I will for purposes of today, your Honor.
19 And I will doublecheck them later and reserve the right to
20 object. But as far as I know they are.
21 MR. SCHWARZ: Okay. Your Honor, then can we skip
22 for purposes of further authentication on the other documents,
23 can I skip the fact that they're identical? Is that the
24 Court's ruling?
25 THE COURT: Yes.
26 MR. SCHWARZ: Okay. Then since it's identical to
27 Exhibit Number 65, the People would direct the Court to page
28 605 of the October 25th, 2000 deposition, lines 3, through
51 Amanda M. Fagan, C.S.R. #8764 RPR
1 606, line 1. Does the Court wish me to read?
2 THE COURT: No, I can read it.
3 MR. SCHWARZ: Thank you, your Honor.
4 THE COURT: Okay.
5 MR. SCHWARZ: So the Court will take notice that "I
6 think the contents," this is line 25 -
7 THE COURT: I've read it, Counsel.
8 MR. SCHWARZ: So the People respectfully offer
9 People's Exhibit Number 7 and proffer it.
10 THE COURT: Mr. Harr, any objection?
11 MR. HARR: Yes, your Honor. One way to
12 characterize, I think, the approach in this examination is a
13 fire hose. You know, it's click, it's rapid fire, it's not
14 really -- the context seems to indicate that Mr. Henson was
15 trying to think, and trying to answer questions. And he keeps
16 getting cut off, and keeps getting cut off, because they're
17 looking for a certain answer to authentication. You see all
18 the lines, dot, dot, where he's being cut off. He starts at
19 line 12 and 13, page 605, "I don't think this one is right."
20 THE COURT: Okay.
21 MR. HARR: Although -
22 THE COURT: I've read that.
23 MR. HARR: "I don't think -- I think the date is
24 wrong, but I think the contents of it looks fairly good. At
25 least, in fact -- again it's missing material from --I' and
26 then he gets cut off again. And then it says, "Yeah, I
27 understand in term of the date we've gone over this --" he
28 doesn't let him finish it. I don't think that is an
52 Amanda M. Fagan, C.S.R. #8764 RPR
1 authentication. He's getting cut off. "It's missing
2 material," and he says, "Okay, let's go to 66." I don't think
3 that's an authentication, your Honor.
4 THE COURT: The objection will be overruled. 7
5 would be received.
6 Go ahead, Counsel.
7 MR. SCHWARZ: Thank you, your Honor. With respect
8 to Number 8, People would refer the Court to the deposition
9 transcript, page 606, line 12 through 19. For the record, the
10 deposition exhibit would be 67.
11 THE COURT: Okay.
12 MR. SCHWARZ: And I'll allow some time for the Court
13 to review it.
14 THE COURT: All right. Anything?
15 MR. SCHWARZ: No, your Honor. The People submit.
16 THE COURT: Mr. Harr?
17 MR. HARR: Again, it's -- you know, Mr. Henson
18 indicates, line 18, "I don't see anything obviously wrong with
19 this," and, "Okay, just give me a second." Okay. So he
20 doesn't see anything obviously wrong. I probably won't object
21 to that one.
22 THE COURT: Received as marked.
23 MR. SCHWARZ: Thank you, your Honor.
24 MR. HARR: With the understanding that, you know,
25 not withdrawing the Fifth Amendment thing. I know it's
26 already been ruled on, I'm not arguing about that, but -
27 THE COURT: Thank you, Counsel.
28 MR. SCHWARZ: People respectfully move on to Exhibit,
53 Amamda M. Faaan. C.S.R. #8764. RPR
1 Number 9.
2 THE COURT: Okay.
3 MR. SCHWARZ: For the record it is Exhibit Number -
4 deposition Exhibit Number 69. People would direct the Court
5 to page 607, lines 3 through 7, your Honor.
6 THE COURT: All right. 7 MR. SCHWARZ: People submit on the record,
9 THE COURT: Any objection? 10 MR. HARR: I would object to that on
the basis that
11 it's qualified. He says, "I think," "I think it is." That's
12 less than -- that's less than 50 -- "I think it is"?
13 THE COURT: An arousing authentication. I would
14 agree that it's less than arousing. An arousing
15 authentication. However, it's sufficient to be received.
16 Item 9 will be received as well.
17 MR. SCHWARZ: Thank you, your Honor. People
18 respectfully direct the Court's attention to People's Exhibit
19 Number 10.
20 THE COURT: Uh-huh.
21 MR. SCHWARZ: This would be referenced in the
22 October 25th, 2000 deposition Exhibit Number 78.
23 THE COURT: Okay. What pages?
24 MR. SCHWARZ: Pages 613, your Honor, lines 22,
25 through 614, line number 1.
26 THE COURT: Okay. 27 MR. SCHWARZ: People submit on the record, your
54 Amanda M. Fagan, C.S.R. #8764 RPR
1 THE COURT: Any objection, Counsel?
2 MR. HARR: No, your Honor.
3 THE COURT: Exhibit 10 is admitted.
4 Go ahead, Counsel.
5 MR. SCHWARZ: Your Honor, at this time we are no
6 longer in the deposition transcript, but rather in a trial
7 transcript from May 6th, 1998.
8 THE COURT: Says May 7, Counsel. 9 MR. SCHWARZ: My apologies, your
Honor. It should
10 be May 7.
11 THE COURT: Okay. 12 MR. SCHWARZ: Can I help Counsel for a moment,
14 THE COURT: Yes. Not too much. 15 MR. SCHWARZ: With respect to
16 Number 11, your Honor, it would be Exhibits 10 dash 26 for the
17 purposes of the trial of May 7, 1998. And the relevant -- the
18 relevant testimony, your Honor, the People would direct the
19 Court to page 386, line 11, through 387, line 3.
20 THE COURT: Say that again, the last one.
21 MR. SCHWARZ: I apologize, your Honor. Page 386,
22 line 11, through 387, line 3.
23 THE COURT: Okay. Okay.
24 MR. SCHWARZ: These, your Honor, you'll note that -
25 well, People would submit, your Honor.
26 THE COURT: Mr. Harr, any objection?
27 MR. HARR: I don't have any recollection that I've
28 ever seen any of this before. But I believe we're going to
55 Amanda M. Fa an C.S.R. #8764 RPR
1 10-26 on here, that's the exhibit number?
2 MR. SCHWARZ: 10-26, that's correct.
3 THE COURT: Any objection?
4 MR. HARR: I apologize for going slow, your Honor.
5 I don't recall seeing this part of it. That was 387 -- 386,
6 line what? 3?
7 MR. SCHWARZ: Line 11.
8 MR. HARR: To 387?
9 MR. SCHWARZ: Line 3.
10 MR. HARR: Thank you.
11 Your Honor, I don't see anything in the record that
12 indicates Mr. Henson authenticated this document. It seems
13 his attorney at the time didn't have any objection to its
14 admission, but I don't see anything in there that Mr. Henson
15 actually authenticated it.
16 THE COURT: Counsel?
17 MR. SCHWARZ: Your Honor, it's an admission with
18 respect to authenticity for purposes of authenticity, your
20 THE COURT: What were they admitted for, Counsel?
21 MR. SCHWARZ: They were admitted in a trial, your
22 Honor, a copywrite trial. And they -- well, pretty much the
23 same type of thing, your Honor. They -- Mr. Henson wrote
24 these particular postings, and they were admitted in a trial.
25 And so it's my understanding, your Honor, that both Counsels
26 at that particular meeting agreed to these documents, and they
27 were submitted to the Court, and they were offered and
28 accepted into evidence, your Honor. It's an admission for
56 Amanda M. Fagan, C.S.R. #8764 RPR
1 purposes of authenticity.
2 The People would submit on those comments. Thank
3 you, your Honor.
4 THE COURT: I don't know that that would qualify it
5 as an admission.
6 MR. HARR: This is also the same issue with, you
7 know, this is a '96 -
8 THE COURT: With the rest of them, I understand.
9 All of those that are taken -- that are included in that
10 alleged admission. And on pages 386 through 387, let me take
11 a look at that a little more carefully. And I'll make my
12 ruling before the end of the day. However, let's move on so
13 we can -- let's move on past Exhibit 15 -- no, I guess -
14 MR. SCHWARZ: We're still on, your Honor, 12.
15 THE COURT: 12 is in the same -
16 MR. SCHWARZ: Yes, you're -- so it would be 13.
17 THE COURT: 13. Let's move to 13.
18 MR. SCHWARZ: The People would direct the Court to
19 -- at this point, your Honor, we are now in -- I don't know
20 why this is out of order. My apologies to the Court.
21 THE COURT: Number 13; right?
22 MR. SCHWARZ: Number 13, but we're back to the
23 October 25th -
24 THE COURT: Okay.
25 MR. SCHWARZ: -- deposition. Line -- or page 598,
26 lines -
27 THE COURT: I've got it, Counsel. I mean, I've got
28 the cite. I just can't find the page. Just one moment.
57 Amanda M. Fa Ian, C.S.R. #8764 RPR
1 All right.
2 MR. SCHWARZ: People submit, your Honor.
3 THE COURT: Mr. Harr?
4 MR. HARR: Yes, your Honor. From what I gather from
5 the transcript that I read there, the People are not trying to
6 offer the last two lines on that posting?
7 THE COURT: That's what I understand. Is that
8 correct, Counsel?
9 MR. SCHWARZ: Your Honor, again, this goes back to
10 placing things in context, your Honor.
11 THE COURT: Something after? That doesn't place
12 anything in context, Counsel.
13 MR. SCHWARZ: Okay.
14 THE COURT: That will be redacted. The last lines.
15 MR. HARR: Other than that, no objection.
16 THE COURT: Let's see. I think it would be
17 beginning with "p.s."; is that correct?
18 MR. SCHWARZ: "P.S.S.", your Honor.
19 THE COURT: From the words "p.s." through the
20 balance of the page it is redacted. Otherwise it will be
21 received as People's 13.
22 MR. SCHWARZ: Excuse me, your Honor. May I -- can
23 the Court -- I think the Court means to say "P.S.S.", your
24 Honor, because the -- not that I am presuming -- I'm not
25 presuming anything. However, the "p.s." is actually what
26 Mr. Henson said.
27 THE COURT: Oh, that's correct. Yes. So the last
28 -- just the last line. I apologize, Counsel.
58 Amanda M. Fagan, C.S.R. #8764 RPR
1 MR. SCHWARZ: Thank you, your Honor.
2 THE COURT: All right. Number 15.
3 MR. SCHWARZ: This would be the July 13, 2000
4 deposition transcript. This would be 5. With respect to 14,
5 your Honor, People's Exhibit 14.
6 THE COURT: Do I have the July transcript?
7 MR. SCHWARZ: It would be -
8 THE COURT: I have May 7, 1998 transcript.
9 MR. SCHWARZ: It would be Number 5, your Honor,
10 People's 5. It's been previously marked as People's Exhibit
11 Number 5. It should be big and thick.
12 THE COURT: July 13, right? Okay. Go ahead.
13 MR. SCHWARZ: Thank you, your Honor. People would
14 direct the Court to page 486, line 7, through 487, line 10.
15 THE COURT: I got it.
16 Well, okay. Go ahead.
17 MR. SCHWARZ: Counsel is asking me a question, your
18 Honor, I apologize.
19 MR. HARR: I am not able to find what exhibit we're
20 referring to. Maybe I dug too deep here.
21 THE COURT: It's 14.
22 MR. SCHWARZ: We're on 14.
23 MR. HARR: Okay. I've got the, I believe what is
24 the transcript here. I went to 487, 486. Okay. But I don't
25 see the actual document that it refers to.
26 MR. SCHWARZ: Exhibit Number 16.
27 MR. HARR: Okay. And these are numbered, like -
28 okay. Exhibits. Number 16?
59 Amanda M. Fagan, C. S. R . #8764 RPR
1 MR. SCHWARZ: That's correct.
2 MR. HARR: This refers me to Exhibit 16. I have
3 something marked 16 here, and I'm hoping that is the document.
4 You're saying there was a series; can you please point out to
5 me what series you're discussing?
6 Are you seeing six documents? Six pages?
7 MR. SCHWARZ: Yes. We're looking at 2 and 3, is the
8 only thing that's relevant. That's the only thing we're
9 concerned about.
10 MR. HARR: These two?
11 MR. SCHWARZ: Yes.
12 MR. HARR: These two documents?
13 MR. SCHWARZ: Yes.
14 People would submit, your Honor.
15 THE COURT: Mr. Harr?
16 MR. HARR: I'm sorry, your Honor, I was trying to -
17 I haven't really read these -
18 THE COURT: Take your time.
19 MR. HARR: I'll try to move it out here pretty
21 Your Honor, I've had time to read that. Thank you.
22 I don't -- I must be missing something. I don't see that
23 these particular documents are referred to. I don't see where
24 the punch line is. I see that they start talking about 16,
25 and I see that they end up on a page that has something to do
26 with their agreeing that something is okay. But I missed
27 where 2 and 3 factored in there. I didn't see any -- anything
28 to indicate that that's -- that the defendant authenticated
60 Amanda M. Fagan, C.S.R. #8764 RPR
1 that. I must be missing something. 486 and 487. And I read
2 to 496.
3 THE COURT: The problem the Court has, Mr. Schwarz,
4 is I don't -- I don't see that there's ---there isn't -- only
5 equivocation on the part of Mr. Henson. That he only
6 equivocates as to the possibility that he prepared this
7 document. That's the concern the Court has. Maybe the
8 Court's misreading. And I would appreciate both Counsel
9 informing the Court as to whether or not it is correct in that
10 -- in its reading.
11 MR. SCHWARZ: Apparently from 486, your Honor,
12 Mr. Rosen hands Mr. Henson -
13 THE COURT: I got that part.
14 MR. SCHWARZ: Got that part. And then it says -- it
15 says, "-- whether or not these are authentic in the sense that
16 they are true copies of the postings you made? Right?" So
17 then you go to 496, 2 through 6, because this is a series.
18 They're talking about -- there is a series of postings, your
19 Honor, in Exhibit 16. There's not just the one posting.
20 There's a bunch of them. The only one that matters to the
21 People is the one that's submitted as Exhibit Number 14. Then
22 you go to lines 2 through 6 -
23 THE COURT: Well, I understand that, Counsel. Go
24 ahead. Just finish.
25 MR. SCHWARZ: Well, what's happening is Mr. Rosen,
26 through -- unless the Court wants to, we can read every one of
27 the pages. The People simply was trying to demonstrate where
28 it was going. Number -- Exhibit 16 has multiple postings,
61 Amanda M. Fagan, C.S.R. #8764 RPR
1 your Honor. One of them is the one that is 14 for the People.
2 As they're going along, he's told them the exact same thing
3 before. "It's not the header, it's not anything else, we want
4 to know whether or not the words are yours," and then he flips
5 over and he says, "Okay, the next page." So we can actually
6 go through the postings together or the actual -- the way it
7 is in the court, and you can actually physically see the next
8 one. This one is the next one, the next page.
9 "This again is quoting you earlier; right?
11 "You haven't added anything to this; right?
13 "Okay, next page."
14 So that's what -- that's what is going on. So
15 what's on the record is, Number 16, all of these postings, and
16 Mr. Rosen's handing them to him and showing them to Mr. Henson
17 saying, "Nothing has been added; correct?" "No, nothing has
18 been added." "Let's go to the next page."
19 And if the Court wants to, we can physically go
20 through all of Number 16 and track it to demonstrate, in fact,
21 that Mr. Henson has -- was shown this one, because it's in the
22 Court's order. There's in the -- it's obviously attached to
23 the deposition. And then it will track exactly. So when we
24 get to that line it will show that Mr. Henson was shown this
25 copy and he authenticated it properly, your Honor.
26 THE COURT: Mr. Harr? Quickly.
27 MR. HARR: The two pages that I started with, 486,
28 line 7, through 487, line 10, I don't see anything that refers
62 Amanda M. Fagan, C.S.R. #8764 RPR
1 to these two specific documents. And then we jump -
2 THE COURT: Well, he can introduce all of 16 if you
3 want him to.
4 MR. HARR: Well, there's a -
5 THE COURT: You want to satisfy yourself over the
6 lunch recess that these two pages are extrapolated from
7 Exhibit 16?
8 MR. HARR: I believe that it appears that they were
9 probably -- that's not my only problem, your Honor. In
10 essence, my problem is that there is about a nine-page jump
11 here, and then we start with this is again, "Quoting your
12 earlier one," and it doesn't say what the one is, and then,
13 "Haven't added anything to this; right?" "No." And then we
14 go "this," we're using a lot of pronouns here that aren't
15 really referring to a specific item, and that's my concern.
16 THE COURT: Okay. Anything else?
17 MR. SCHWARZ: No, your Honor, just to -
18 THE COURT: I didn't ask you, I asked him.
19 MR. SCHWARZ: I'm sorry, I thought you pointed to
20 me, your Honor.
21 THE COURT: Anything else?
22 MR. HARR: No, I don't see anything else that says
24 THE COURT: Mr. Schwarz, submitted?
25 MR. SCHWARZ: Submitted, your Honor.
26 THE COURT: Matter will be received. Item 14 will
27 be received in this matter.
28 MR. SCHWARZ: Thank you, your Honor.
63 Amanda M. Fa an C.S.R. #8764 RPR
1 MR. SCHWARZ: People, with respect to People's
2 Exhibit Number 15, we're still in the July 13th -
3 THE COURT: Page 519?
4 MR. SCHWARZ: Page -
5 THE COURT: 503?
6 MR. SCHWARZ: Page 503, line 12.
7 THE COURT: Line 12 through 519 -
8 MR. SCHWARZ: 15 through 19, and 520, 5 through 21,
9 your Honor.
10 THE COURT: Counsel, is there any relevance to some
11 of this stuff that the Court is reading? It looks totally
12 irrelevant, and argumentative, and probably facetious, also.
13 MR. SCHWARZ: Well, your Honor, at this time the
14 People would respectfully remind the Court that at this point
15 we're just talking about authentication -
16 THE COURT: I know, that's what I'm saying. I don't
17 see that any of this which bears on authentication. Did you
18 include it just so that the Court would be able to do this in
19 context, or is there something -- there's nothing about the
20 authentication between 503 so far and 510.
21 MR. SCHWARZ: No, that's in context, your Honor.
22 That's in context. The main authentication portion of it
23 would be page 520, your Honor. And the People would
24 respectfully ask the Court to look at the document and talk
25 about the colloquy that was going -- that they were talking
26 about. And the Court will notice that it is exactly what the
27 content of the posting is.
28 THE COURT: All right, Counsel. Anything?
64 Amanda M. Fagan, C.S.R. #8764 RPR
1 MR. SCHWARZ: Submit, your Honor.
2 THE COURT: Mr. Harr?
3 MR. HARR: Thank you, your Honor. I'm reading on
4 page 519 at line 19 and where it says, "Is it accurate,"
5 assuming we're referring to this particular document, which it
6 looks like we are, but I don't have any clear indication.
7 Again, this is a multi-page exhibit which I don't have any
8 clear reference to this particular page. Additionally, it
9 says, "Is it authentic?" The answer seems to be "Probably."
10 And, "Is it accurate?" "Ha ha, no, I don't know -- it's not,
11 no." So that's a qualification.
12 So I need to try to go to 520. Then apparently here
13 I have -- they get into some specifics on this particular
14 document. "I have ways of cashing checks which I don't think
15 have ever resulted in who was contributing getting back to
16 Scientology." I guess if that's in there, I guess that's -
17 seems to be authenticated.
18 THE COURT: Okay.
19 MR. HARR: Other than that, I don't see where
20 there's even any information in here that pertains to that.
21 THE COURT: Anything else, Counsel? Be received as
23 MR. SCHWARZ: Number 16, your Honor, People's
24 Exhibit Number 16.
25 THE COURT: Okay.
26 MR. SCHWARZ: This is -- goes back to the October
27 the 25th, 2000 deposition at page 612, lines 5 through 6.
28 THE COURT: That would be number 75?
65 Amanda M. Fa an C.S.R. #8764 RPR
1 MR. SCHWARZ: Exactly. Or actually, your Honor, it
2 would be deposition Exhibit Number 74, your Honor.
3 THE COURT: Starts on 612? 4 MR. SCHWARZ: 612, your Honor. 5 THE
COURT: Line 6. Which is referring to Exhibit
7 MR. SCHWARZ: I apologize, your Honor. What is the
8 Court's inquiry?
9 THE COURT: It says Exhibit 74, People's Exhibit 3
10 at 612, lines 5 and 6. But lines 5 and 6 says, "Oh, wait a
11 minute. I fired ammunition which is well over 40 years old.
12 That could be true." I don't understand how that is an
13 introduction for 74.
14 MR. SCHWARZ: Could the Court permit me a few
16 THE COURT: Well, we've got another witness. Let's
17 take this one up after lunch.
18 MR. SCHWARZ: Okay.
19 THE COURT: And then we've got one more -- oh,
20 that's right, you have Mr. Greer?
21 MR. SCHWARZ: That's correct, your Honor.
22 THE COURT: Okay. Let's get him in here.
23 THE CLERK: Sir, I need you to raise your right
24 hand, please.
25 Do you solemnly state that the testimony you are
26 about to give in the case now pending before this Court shall
27 be the truth, the whole truth, and nothing but the truth, so
28 help you God?
66 Amanda M. Fagan, C.S.R. #8764 RPR
1 THE WITNESS: I do.
2 THE CLERK: Please be seated, and state your name
3 and spell it for the record.
4 THE WITNESS: Anthony, A-n-t-h-o-n-y, Greer,
6 THE COURT: All right, Counsel.
7 MR. SCHWARZ: Thank you, your Honor. Hopefully this
8 will be a little shorter.
9 THE COURT: Well, it couldn't be any longer.
10 MR. SCHWARZ: It would be hard, your Honor.
11 I'm going to do this your Honor, instead of doing it
12 on the ELMO I'm just going to approach the witness if that's
14 THE COURT: Thank you.
15 MR. SCHWARZ: May I approach, your Honor?
16 THE COURT: Yes.
17 DIRECT EXAMINATION
18 BY MR. SCHWARZ:
19 Q. Before we get started, Detective Greer, how are you
21 A. I'm a Detective with the Riverside County Sheriff's
22 Department assigned to the Hemet Station.
23 Q. And how long have you been a sworn peace officer in
24 the state of California?
25 A. Twenty years.
26 Q. And in those 20 years did you receive any training
27 with respect to interviewing people, and taking down notes,
28 and writing reports?
67 Amanda M. Fagan, C.S.R. #8764 RPR
1 A. Yes.
2 Q. Can you please describe briefly just some of the -
3 where you did that training at?
4 A. I did it in the Sheriff's Academy, the Field
5 Training Program, and just through writing reports.
6 Q. And in your 20 years can you give just a rough
7 estimate of how many times you've interviewed somebody and
8 written a report?
9 A. Hundreds of thousands.
10 Q. And have you ever done an investigation with respect
11 to documents?
12 A. Yes.
13 Q. Such as maybe a bank case or something to that
15 A. Yes.
16 Q. Okay. Now, I've previously handed you what's been
17 previously marked as People's Exhibits 17 through 25. Can you
18 take a brief moment and look through those documents? And
19 indicate to the Court when you're done whether or not you
20 recognize them.
21 A. Okay.
22 Q. Do you recognize what they are?
23 A. Yes. They're internet postings.
24 Q. And who was listed as the author of these postings?
25 A. Keith Henson.
26 Q. Did you have an opportunity to interview Mr. Henson?
27 A. Yes, I did.
28 Q. And when was that?
68 Amanda M. Fagan, C.S.R. #8764 RPR
1 A. I don't recall the exact date. I'd have to look at
2 my report.
3 Q. Would it refresh your recollection to look at your
5 A. Yes.
6 MR. SCHWARZ: With the Court's permission? 7 THE COURT: Sure. 8 MR.
HARR: Which report are we talking about?
9 There's more than one report.
10 MR. SCHWARZ: Detective Greer's report.
11 MR. HARR: He has two reports. Which one?
12 MR. SCHWARZ: It's just to refresh his recollection,
13 it's one of two.
14 MR. HARR: Is it the August 8th report or August
15 10th report? There are two reports.
16 THE WITNESS: Yes, the August 8th report.
17 MR. HARR: Thank you.
18 THE WITNESS: July 17 when I interviewed Mr. Henson.
19 Q. (By Mr. Schwarz): How did that interview come
20 about, sir?
21 A. Earlier that morning I had contacted Mr. Henson out
22 at the Golden Era Productions location and asked if he would
23 voluntarily come to the Hemet Station that afternoon for an
25 Q. And did he in fact go?
26 A. Yes.
27 Q. How long was the interview?
28 A. I believe about an hour and-a-half.
69 Amanda M. Fa an C.S.R. #8764 RPR
1 Q. During the interview did you show these postings to
2 Mr. Henson?
3 A. Yes.
4 Q. And did you hand them to him?
5 A. I don't know that I handed them to him, but put them
6 in front of him. We were sitting at a table, yes.
7 Q. So he was able to look at the postings?
8 A. Yes.
9 Q. And did he read them?
10 A. Not -- no, he just skimmed over some highlighted
11 areas that I pointed out. But he looked at them.
12 Q. Okay. And in the course of your interview did you
13 have a discussion with him about these postings?
14 A. Yes.
15 Q. And what was discussed?
16 A. That he had posted them as a joke, or basically to
17 make the church paranoid of him, or afraid.
18 Q. Okay. During that discussion did he say anything to
19 put these postings into context? Is that the joking part and
20 the paranoia part?
21 A. Yes, just to make them paranoid.
22 Q. So he acknowledged that they were his postings, but
23 he told you it was either a joke or to make them paranoid?
24 A. Yes.
25 Q. Did he suggest at any time during the interview that
26 any of these were not his postings? When you put them in
27 front of him did he say, "Those aren't my postings"?
28 A. No.
70 Amanda M. Fagan, C.S.R. #8764 RPR
1 Q. Did he say or imply that anyone forged his name onto
2 these postings?
3 A. No.
4 Q. Now, you talked about the paranoia, so was -
5 before. Was that some sort of general plan that he had
6 indicated to you?
7 A. I think one of the terms that he used was
8 "psychological warfare."
9 Q. He was using psychological warfare?
10 A. Yes.
11 Q. By means of the postings?
12 A. Yes. And the picketing.
13 Q. Okay. Given the context of the interview -
14 THE DEFENDANT: I'm sorry.
15 THE COURT: Are you okay?
16 THE DEFENDANT: Yeah, I'm sorry.
17 Q. (By Mr. Schwarz): Given the context of the
18 interview and handing him the postings, letting him look at 19 the
postings, were you sufficiently satisfied that they were 20 his?
21 A. Yes.
22 Q. Why?
23 A. Because he said they were.
24 MR. SCHWARZ: No further questions, your Honor.
25 THE COURT: Mr. Harr?
26 MR. HARR: Thank you, your Honor.
28 BY MR. HARR:
71 Amanda M. Fagan, C.S.R. #8764 RPR
1 Q. Detective, do you have a copy of these three, I
2 assume you know, for example, like, Exhibit 17, the one that's
3 marked 17?
4 A. Yes, sir, I have them right here.
5 Q. In looking at your police report -
6 MR. SCHWARZ: Which one?
7 MR. HARR: That we previously referred to.I
8 believe at the top it says "Date prepared, August 8th, 2000."
9 THE WITNESS: Yes. Yes, sir.
10 Q. (By Mr. Harr): On page 1 at the top, it's a
11 continuation sheet apparently, continuation sheet, page 1, the
12 evidence items are listed as a video cassette, et cetera, and
13 a cassette tape, et cetera. I don't see anything in here that
14 your report refers to any specific internet postings; how do
15 you know that these are, in fact, the documents that you
16 discussed with Mr. Henson?
17 A. Because they're attached to my report.
18 Q. Okay. And on your report at page 3, continuation
19 sheet page 3, I believe you indicated that he, referring to
20 Mr. Henson, he said he could not tell if the message was
21 tampered with but could tell if something was wildly out. "I
22 told Henson I wanted to go over some of his internet postings
23 to make sure they were his writings and not tampered with --"?
24 MR. SCHWARZ: Where?
25 MR. HARR: Line 12. Why don't I do this in order
26 here. "I told Henson I wanted to go over some of the internet
27 postings to make sure they were his writings and not tampered
28 with. He said he could not tell if the message was tampered
72 Amanda M. Fagan, C.S.R. #8764 RPR
1 with, but could tell if something was wildly out."
2 Q. So he didn't make an unqualified statement saying,
3 "I'm really sure these are mine"? Apparently from your report
4 that's not what he said; correct?
5 A. No, he didn't say that. But he didn't point out any
6 wildly out of order ones, either.
7 Q. You didn't read them all; is that correct?
8 A. No, he glanced at them.
9 Q. I guess your report indicated that it was your
10 previous information you had indicated that maybe Mr. Henson
11 indicated he was trying to make the Scientologists paranoid,
12 but in fact he made a statement that he might be wanting to
13 make Mr. and Mrs. Miscavige paranoid; isn't that what it says
14 on page 64, line 3 -
15 MR. SCHWARZ: Relevance.
16 THE COURT: Read the question again? I'm sorry,
17 would you repeat.
18 (Record read.)
19 THE COURT: Sustained.
20 Q. (By Mr. Harr): When you went through the postings,
21 for example, Number 17, Deputy Greer, if you could please look
22 at that one?
23 A. Yes, sir.
24 Q. There are some -- I don't know what you would call
25 them -- greater-than or less-than indications in the left
26 margin under "Snip"?
27 A. Uh-huh.
28 Q. Did Mr. Henson tell you that he posted that?
73 Amanda M. Fagan, C.S.R. #8764 RPR
1 A. Well, as you, I'm as confused as you are with this.
2 Mr. Henson and I went through that, and he pointed out what
3 each snip and asterisk and all the internet stuff was. So he
4 pretty much pointed out what was his, and if somebody had
5 posted prior or behind him during the interview.
6 Q. All right. So on this specific instance what did
7 Mr. Henson say about the four lines that have the greater-than
8 sign in front of them? Did he in fact indicate that he posted
9 that information?
10 A. I don't remember.
11 Q. Okay. What part of that document do you remember
12 that he acknowledged posting?
13 A. The part that says, "No way modern weapons are
14 accurate to a matter of a few tens of yards. The terminal
15 guide ones are good to single digits."
16 MR. HARR: No further questions.
17 THE COURT: All right. Mr. Schwarz?
18 MR. SCHWARZ: Nothing, your Honor. Submit.
19 THE COURT: Argument?
20 MR. HARR: Just that to the extent Deputy Greer does
21 not recall that Mr. Henson authenticated those four lines, I
22 believe that, you know, those should be redacted or deleted in
23 some way.
24 THE COURT: Which four lines of which -
25 MR. HARR: The four lines that have the -- I guess
27 THE COURT: Which exhibit?
28 MR. HARR: Excuse me, your Honor, Number 17.They
74 Amanda M. Fagan, C.S.R. #8764 RPR
1 have those greater-than or -- signs on the four lines
2 beginning, "The range of a Pluton M.R.B.M.", et cetera, et
3 cetera, and the three lines right under that, they have those
4 indicators on the left-hand margin. To the extent that Deputy
5 Greer says he can't remember if Mr. Henson authenticated that,
6 I believe that should at least be redacted. He seems to
7 indicate that Mr. Henson confirmed the last part, so I
8 wouldn't have any objection to "No way modern weapons --"
9 MR. SCHWARZ: Your Honor, may I respond?
10 THE COURT: Yes.
11 MR. SCHWARZ: Your Honor, that's again a context.
12 It's a reply, your Honor. The four lines are someone else's
13 writing, and it adds context. Otherwise "No way modern
14 weapons" doesn't make sense unless you have the four lines
15 above it, your Honor.
16 MR. HARR: I believe Counsel is testifying. I tried
17 to restrain myself in that regard.
18 MR. SCHWARZ: We've been down this road before, your
20 THE COURT: I think we have. The objection will be
21 overruled. The items will be received. They'll be deemed
22 authenticated, I guess.
23 MR. HARR: Then I'd like to go to 18.
24 THE COURT: I misused the language this morning, I
25 said "received." What I meant to say was "authenticated."
26 MR. SCHWARZ: Yes, your Honor.
27 MR. HARR: I'd like to go to 18 now.
28 THE COURT: Okay.
75 Amanda M. Fagan, C.S.R. #8764 RPR
1 Q. (By Mr. Harr): Detective Greer, could you please
2 grab Number 18, if it's available to you there?
3 A. I've got it.
4 Q. Thank you. What part of 18, if any, did Mr. Henson
5 indicate to you that he actually posted himself?
6 A. My understanding was since there's no asterisks the
7 whole thing, or the little greater or lesser signs -
8 THE COURT: You've answered the question.
9 Q. (By Mr. Harr): Are you -- you're not sure, or you
10 are sure?
11 A. I am.
12 MR. HARR: No further questions. 13 THE COURT: 18 will be received.
I mean deemed
15 Q. (By Mr. Harr): Would you please refer to 19, Deputy
16 Greer. Is your answer the same for 19 as far as him actually
17 saying that he posted this himself?
18 A. Yes, sir.
19 MR. HARR: Then I would have no objection to 19.
20 THE COURT: All right. That will be deemed
22 Q. (By Mr. Harr): If could you please refer to 20?
23 A. Got it.
24 Q. What part of that, if any, did Mr. Henson indicate
25 that he personally posted?
26 A. The whole thing.
27 MR. HARR: No objection to that.
28 THE COURT: Deemed authenticated.
76 Amanda M. Fagan, C.S.R. #8764 RPR
1 Q. (By Mr. Harr): Please refer to 21.
2 A. I have it. The "Oh, great," asterisk, "now has to
3 watch for eagles as well as cruise missiles."
4 Q. That part he indicated he posted?
5 A. From my recollection, yes.
6 Q. How about the rest of it?
7 A. I don't recall.
8 MR. HARR: No further questions.
9 THE COURT: All right.
10 MR. HARR: I would object to the lines with the
11 greater-than on it, but -- I don't -- I don't object to that.
12 THE COURT: Thank you. Deemed authenticated.
13 Q. (By Mr. Harr): Did Mr. Henson indicate that he
14 posted this in its entirety, or did he qualify that?
15 A. "I trusted her with the launch codes for the 47
16 I.C.B.M. aimed at Gold Base. Now watch me get arrested again."
17 Q. He indicated this was a response to something that
18 was, "Jeez, get a grip" or whatever?
19 A. I don't recall that he responded to that, but that
20 was the part that he posted.
21 Q. Okay. I asked that poorly.
22 THE COURT: What's that?
23 Q. (By Mr. Harr): I refer to the part that started
24 with the little greater-than signs, those two lines that say,
25 "Jeez, get a grip, peoples, no one is saying to hand over any
26 kind of information to Tory." Do you recall if Mr. Henson
27 said that he posted that?
28 A. I don't recall.
77 Amanda M. Fagan, C.S.R. #8764 RPR
1 Q. But it is your recollection that he posted the part
2 that's below that?
3 A. Yes.
4 THE COURT: The objection will be overruled. It
5 will be received -- it will be authenticated. The purpose of
6 those statements are merely contextual.
7 Q. (By Mr. Harr): And Number 23, is it your
8 recollection that he indicated that he had posted all of that
10 A. The part from "You have a point"?
11 Q. Yes.
12 A. The next paragraph that starts with "So."
13 MR. HARR: No objection.
14 Q. Would you please refer to Number 24.
15 THE COURT: Number 23 will be deemed authenticated.
16 MR. HARR: Thank you, your Honor.
17 Q. Do you recall discussing Number 24, what's been
18 marked 24, with Mr. Henson?
19 A. Yes, I do.
20 Q. Okay. What part, if any, on that document could you
21 please point out what he indicated that he posted?
22 A. The part where it talks about "It would take --" I
23 can't read the word because the printing's bad, but the next
24 word is "-- Deja Research to show this, but I think I --" with
25 asterisks on both sides "-- might have been first to use this
26 saying. My version was 'Not one stone under another in salty
28 Q. To the best of your recollection is that all that
78 Amanda M. Fagan, C. S. R. #8764 RPR
1 Mr. Henson indicated that he posted?
2 A. And the next paragraph below that.
3 Q. And how about the paragraph below that, starts, "You'
4 don't permit yourself to think about these ideas"?
5 A. I don't recall that.
6 MR. HARR: I don't have any objection to that.
7 THE COURT: All right. How about Number 25,
9 THE WITNESS: I recall all of them with the
10 exception of the ones with the greater signs.
11 MR. HARR: I don't have any objection to that,
13 THE COURT: All right. The balance of the 24 and 25
14 will be authenticated, deemed authenticated.
15 All right. Any further questions?
16 MR. HARR: No, your Honor.
17 THE COURT: Detective, thank you for your testimony.
18 You can keep those. You may save them for something. We have
19 copies here.
20 MR. SCHWARZ: Yes, your Honor.
21 THE COURT: All right. Anything else at this time?
22 MR. SCHWARZ: Not at this time, your Honor.
23 THE COURT: What are we going to do this afternoon?
24 MR. SCHWARZ: Well, your Honor -
25 THE COURT: We're going to finish these guys; right?
26 MR. SCHWARZ: I'm sorry, which guys?
27 THE COURT: The -- Exhibit 1, 4, 11, 12, and 16.
28 And 5, I think. Oh, no, 5 was -- okay. That's what the Court
79 Amanda M. Fagan, C.S.R. #8764 RPR
1 wanted, to take these up separately. I said I'd rule on these
2 after lunch.
3 Anything else that we want to take up after lunch
4 other than these?
5 MR. SCHWARZ: Is the Court going to -
6 THE COURT: And the -- and the reconsideration.
7 MR. SCHWARZ: And the reconsideration motion.
8 MR. HARR: Mr. Olive's here as well on the -
9 THE COURT: Say what?
10 MR. HARR: Mr. Olive's here on the motion regarding
11 the fair game issue.
12 THE COURT: Yeah. Does he want to get out of here?
13 MR. HARR: He probably wouldn't mind. He's going to
14 be in town for a while.
15 THE COURT: Well, no, I mean this morning. Because
16 -- how long is it going to take?
17 MR. HARR: Well, we've -- I would -- my best
18 estimate would probably be about a half hour, depending on -
19 THE COURT: Let's do it at 1:30.
20 MR. SCHWARZ: Your Honor, there is one other thing.
21 I don't know if the Court wants to take it up now since we
22 have five minutes. The Court previously reserved judgment on
23 the Mombo Chicken Book.
24 THE COURT: I know I have. And I want to review, I
25 saw that referred to on one of the documents.
26 MR. SCHWARZ: And the People also would proffer some
27 other documents that would indicate that Mr. Henson actually
28 refers to -
80 Amanda M. Fa Ian, C.S.R. #8764 RPR
1 THE COURT: I know he did, and that's what I wanted
2 -- I want -- that's why I took it under -- I reserved
4 What is that?
5 MR. SCHWARZ: It's some additional documents that
6 were not authenticated, your Honor. But they do in fact for
7 purposes of the -- since the Court is reserving judgment it
8 does, and the Court asked me the last time on Monday did I
9 have any internet postings that indicate whether or not
10 Mr. Henson actually refers to the book in 19 -
11 THE COURT: Right, I'm sorry.
12 MR. SCHWARZ: -- in 1997 or before these events
13 occurred. And the Court -- and the People have found two such
14 -- two such internet postings, your Honor.
15 THE COURT: Counsel, the concern the Court has is
16 that those documents have not been authenticated. I don't
17 know whether they're correct or not. The Court's interest is
18 only in the authenticated documents wherein Mr. Henson has
19 referred to the "Great Mombo Chicken." The Court will make
20 its ruling based upon what relevant authenticated documents it
21 has. And it will not refer to anything that hasn't been
23 MR. SCHWARZ: The People apologize, your Honor. It
24 was the People's understanding the last time, it was a direct
25 question to the People as I recall, "Do you have anything of
26 that nature?" I didn't think the Court was in fact asking for
27 an authenticated document, but just some reference to it. And
28 so that's the reason why the People proceeded this way.
81 Amanda M. Fagan, C.S.R. #8764 RPR
1 THE COURT: That's the Court's position.
2 MR. SCHWARZ: Thank you, your Honor.
3 THE COURT: Anything else right now?
4 MR. SCHWARZ: Right now, no. Thank you, your Honor.
5 THE COURT: All right. We'll see you at 1:30.
6 Let's come back prompt at 1:30.
7 MR. SCHWARZ: Yes, your Honor.
8 (Noon recess taken.)
9 AFTERNOON SESSION
10 THE COURT: All right, Counsel. Did you have an
11 expert that you wanted to introduce? Yes, Counsel?
12 MR. SCHWARZ: Your Honor, before we take up those
13 matters with respect to the expert, was the Court going to
14 allow me to speak about item Number 16, or People's Number 16?
15 THE COURT: Yes.
16 MR. SCHWARZ: Okay.
17 THE COURT: Let's wait for a minute.
18 Go ahead.
19 MR. SCHWARZ: With respect to item 16, your Honor -
20 I'm sorry, I have to find my template. If the Court would be
21 so kind as to go to the October 25th, 2000 deposition, which
22 was People's Number 3.
23 THE COURT: Okay.
24 MR. SCHWARZ: And turn to, just as it's indicated,
25 six -- number 612. I think for clarification, your Honor,
26 it's lines 5 and 6, and it starts with, "I fired ammunition
27 which is well over 40 years old." And if the Court would go
28 to People's Number 16, the fourth full paragraph starting
82 Amanda M. Fagan, C.S.R. #8764 RPR
1 with, "But military hardware is built to last a long time in
2 storage --"
3 THE COURT: Wait a minute.
4 MR. SCHWARZ: Page 2.
5 MR. HARR: Is this document Number 74?
6 MR. SCHWARZ: 74, yes.
7 THE COURT: Okay.
8 MR. SCHWARZ: Starting with the line -- starting
9 with -
10 THE COURT: I see it.
11 MR. SCHWARZ: It says, "I have fired ammunition
12 which is well over 40 years old," your Honor. So there was
13 some confusion as to whether or not the authentication was
14 referring to this specific document. So the opposing Counsel
15 and the Court seem to have a problem, but there is a direct
16 quote that identifies that this is the document, in fact, that
17 was talked about in the deposition. Or -- yes. In the
18 deposition, your Honor. So that should clear up that this was
19 in fact the document.
20 THE COURT: Counsel, you wish to be heard?
21 MR. HARR: Your Honor, I'm still trying to find
22 where the item is. I got to 74.
23 MR. SCHWARZ: Next page, right here. "I have fired
25 MR. HARR: Okay.
26 MR. SCHWARZ: Right there. And then you go to -
27 and read with the other ones about the documents -
28 THE COURT: Well, Counsel, I think the problem the
83 Amanda M. Fagan, C.S.R. #8764 RPR
1 Court has, I think it falls short of authentication when he
2 says on lines 5 and 6, "I fired ammunition which is well over
3 40 years old, that could be true." I think that's not, "That
4 is true" and therefore that he's authenticating. I think what
5 he's doing is he's saying he may have fired ammunition over 40
6 years old, but he's not necessarily authenticating this
7 statement. At least that's the interpretation the Court has.
8 Mr. Harr?
9 MR. HARR: Your Honor, I see exactly what you're
10 referring to. It just seems to be unclear. It's equivocal.
11 He's obviously confused. This excerpt indicates his
13 THE COURT: You're agreeing with the Court?
14 MR. HARR: Yes, sir.
15 THE COURT: Okay. Mr. Schwarz?
16 MR. SCHWARZ: Then I would ask that the Court turn
17 back to page 611, starting with lines 14 then, and read the -
18 read it in context.
19 THE COURT: Well, this makes it even less clear,
20 Counsel, because he says, "I cannot -- I cannot authenticate
21 it." He's being asked to authenticate portions of it. He
22 says, "I can't -- I cannot -- I cannot authenticate it."
23 That's at line 21. And I don't mean to take this out of
24 context, but his merely saying that he "fired ammunition which
25 is well over 40 years old, that could be true," that doesn't
26 necessarily authenticate it.
27 Anything else?
28 MR. SCHWARZ: No, your Honor, with respect to 16.
84 Amanda M. Fagan, C.S.R. #8764 RPR
1 That's -
2 THE COURT: Anything? That will not be received.
3 MR. SCHWARZ: Okay.
4 THE COURT: As authenticated.
5 MR. SCHWARZ: Your Honor.
6 THE COURT: Yes.
7 MR. SCHWARZ: Then may we take up with the -- with
8 respect to People's Number 6, which has been authenticated,
9 your Honor?
10 THE COURT: Why are we taking that up again?
11 MR. SCHWARZ: Because, your Honor, I believe that
12 the Court has authenticated all of the, for context only the
13 previous messages before, and as I recall that the Court
14 struck the "G.P.S. readings of Gold Base as a good start" on
15 this particular one, which would be inconsistent with the
16 Court's previous rulings. And so I would ask the Court to
17 reconsider that, because "A good topo map, the approach is
18 clear from the south" makes no sense without the previous
19 line, "G.P.S. readings, Gold Base is a good start."
20 THE COURT: The reason the Court -- the Court
21 recalls the reason the Court excised that portion is because
22 that was not authenticated by Mr. Henson.
23 MR. SCHWARZ: That's true, your Honor, but -
24 THE COURT: And it was -- he said, in fact, that he
25 couldn't authenticate that.
26 MR. SCHWARZ: Agreed, your Honor. But the Court
27 later on agreed that we're not -- if you're redacting that
28 portion as not authentic, the People would still submit, your
85 Amanda M. Fagan, C.S.R. #8764 RPR
1 Honor, that that still is a contextural argument which would
2 follow the Court's further orders that the previous portion,
3 so that it could be read in context. People, if the Court
4 wants, we will stipulate that that's not Mr. Henson's
5 writings, only that it lends itself to explain what was the
6 context of what he was replying to, your Honor, which would be
7 consistent with how the Court's ruled in after, subsequent
8 postings, your Honor.
9 THE COURT: I don't think so, Counsel.
10 MR. HARR: No, your Honor. And to start the thing
11 out saying -
12 THE COURT: Excuse me, Counsel, I didn't ask you to
13 respond. I didn't ask you to respond. I've already made up
14 my mind, and that's the way the Court will receive item Number
16 MR. SCHWARZ: The last preliminary matter that I
17 would ask the Court to take up at this time is, as I read, I
18 received a document from Defense Counsel this morning, I don't
19 know if the Court has a copy of it?
20 THE COURT: I hope I don't.
21 MR. HARR: You don't, your Honor. Your copy, if
22 any, would be right here.
23 MR. SCHWARZ: Okay. So there's 1 through 20. As I
24 read through the document by ostensibly -- this is from
25 Mr. Oliver. It appears at this point that what Counsel is
26 trying to proffer this witness is as an expert with respect -
27 THE COURT: Which witness?
28 MR. SCHWARZ: Mr. Oliver, your Honor.
86 Amanda M. Fagan, C.S.R. #8764 RPR
1 THE COURT: Oh, okay.
2 MR. SCHWARZ: The so-called expert.
3 THE COURT: Oh, okay. All right.
4 MR. SCHWARZ: It appears that what Counsel intends
5 to proffer Mr. Oliver for is that he is an expert with respect
6 to the veracity of the witnesses. I'll give you an example.
7 THE COURT: Wait a minute, Counsel. Why not let
8 Mr. Harr do that?
9 MR. SCHWARZ: Thank you, your Honor.
10 THE COURT: Mr. Harr.
11 MR. HARR: Your Honor, thank you. We have
12 Mr. Oliver here today.
13 THE COURT: All right. Let's get him up on the
14 witness stand and ask him -
15 MR. HARR: These documents Counsel referred to -- I
16 believe -- he's outside. His name's Frank Oliver.
17 Mr. Oliver's attempted to try to streamline his testimony this
18 afternoon. This shows what his qualifications are, some of
19 the courses he's had through Scientology, the fact that he was
20 a member, some of the positions that he's held, including
21 O.S.A., which would be the area that would conduct the fair
22 game tactic. And the Court's ruling I thought was clear, that
23 we have to qualify him for the relevant period. He was not a
24 Scientologist during the relevant period. But his expertise
25 is such that he understands that this practice was going on
26 during his tenure in '92 and that it can't be revoked.
27 Therefore, the whole notion that the issue of threat -
28 THE COURT: Have a seat, sir, please.
87 Amanda M. Fagan, C.S.R. #8764 RPR
1 MR. HARR: -- just like any other opinion that an
2 expert can have as to, "When given the facts in this case as
3 we believe that they are, isn't this consistent with the fair
4 game tactic?" Because all of the witnesses are in essence
5 either -
6 THE COURT: How can this witness, Counsel, testify
7 as to the credibility of any other witness? How is that
9 MR. HARR: He's not going -- okay. I think that's a
10 really -- that's the heart of the matter. Okay. He's not
11 going to testify as to their credibility. He can't.
12 THE COURT: I didn't think so.
13 MR. HARR: Okay. But as with anybody that's
14 rendering an opinion, like post-traumatic stress disorder or
15 other things, if there is a factual situation the expert can
16 render an opinion. In this case the opinion that we're
17 proffering is that during the relevant period -
18 THE COURT: That is -
19 MR. HARR: -- approximately June-ish through
20 September of 2000, that the fair game practice was in fact
21 alive and well, based on his extensive knowledge, his
22 appearance on T.V., his going through the courses, his
23 practicing himself after it was supposedly nonexistent. He
24 has special inside information because he did it. That's our
25 proffer. He can render an opinion if given the facts of this
26 case if the scenario isn't consistent with the practice of
27 fair game, which includes destroying adversaries of
28 Scientology. That's basically it in a nutshell, your Honor.
88 Amanda M. Fagan, C.S.R. #8764 RPR
1 THE COURT: Well, do you have anything you wanted to
3 MR. SCHWARZ: Yes, your Honor. 4 THE COURT: I'm sure you do.
5 MR. SCHWARZ: I apologize. But Mr. Harr, with all
6 due respect to Counsel, is simply dancing around the subject.
7 He's saying that he can testify to fair game. To what end?
8 He's claiming that they destroyed people or do whatever. But
9 as the Court noted last Monday, the Monday before, that the
10 Scientologists have nothing to do with how the People do its
11 case. It's the District Attorney. The Court made that -
12 indicated that before.
13 So the only thing that Mr. Oliver can testify to is
14 that they, as we talked about before, that fair game is
15 supposed to be lie, cheat and steal. So here what we're
16 talking about is the fact that the only thing he can testify
17 to is that there is some doctrine, whether it exists or not,
18 that the Scientologists lie. The problem with that, your
19 Honor, is, and Witkin indicates, that nobody can be an expert
20 about someone's veracity. And they mention a case by the name
21 of People versus Sergel where the Court of Appeal at 138
22 Cal.App. 3rd, 34, indicates that you can't have someone get up
23 on the stand and say, "This person is going to tell you the
24 truth or not going to tell you the truth." You can't have
25 that happen.
26 THE COURT: I agree. I don't think that that's -
27 that's not the view that -- or what the Court would have under
28 other circumstances.
89 Amanda M. Fagan, C.S.R. #8764 RPR
1 I'll tell you the thing that's beginning to trouble
2 the Court. And that is this. The sole purpose that the Court
3 would receive testimony concerning the fair game doctrine is
4 to attack the credibility of the witnesses. But I think we
5 get into the 352 problem here. And the 352 problem is as
6 follows: If the sole purpose is to attack credibility, and I
7 think Mr. Schwarz pointed that out to the Court the other day,
8 that is, we get down the road that we don't want to travel,
9 the Court has some serious issues concerning whether or not,
10 as it stated this morning, the circumstances surrounding a
11 tenet, or a policy, or an activity is a -- is a religious
12 theory or not a religious theory. I don't think it makes any
13 difference. The more I hear this, the more convinced I become
14 that 789 does apply in this circumstance, and if it doesn't,
15 to the extent that we get down the road that we don't want to
16 travel, the concern that the Court has is that this case -
17 that it just falls within 352.
18 We will -- the obvious prejudice -- and for the
19 moment I will accept that Mr. Oliver would qualify as an
20 expert. The problem the Court has with that, based upon what
21 you've said, Mr. Harr, is that he was not a -- he was not a
22 member -- did not know about this doctrine as it may or may
23 not have existed in the year 2000, which is the relevant
24 period that we're talking about. I believe you said it was
25 1992 that he stopped being a Scientologist; is that correct?
26 You can sit. Just -
27 MR. HARR: Thank you, your Honor.
28 THE COURT: Just tell me "yes" or "no."
90 Amanda M. Fagan, C.S.R. #8764 RPR
1 MR. HARR: He exited his actual membership in 1992,
2 but his special training and knowledge indicates to him that,
3 I'll be specific, L. Ron Hubbard's directives cannot be
5 THE COURT: I read that. I've read that.
6 MR. HARR: And therefore, whether he was actually a
7 member or not, because of his training and understanding of
8 this tactic, it can't be revoked. It has to be in place. And
9 this is not about specific credibility of a witness. The
10 witnesses, to the extent the People call them, they will take
11 the stand, they will give their testimony, their demeanor will
12 be observed, the content of their testimony will be observed.
13 This is another plausible alternative to what's
14 going on. If the witnesses -- this is not going to be a
15 direct attack on any specific person. That is not what this
16 is about. This is a plausible, another explanation of what is
17 going on with this set of facts. These people are going to
18 speak for themselves. There's nothing I can do about that. I
19 can cross-examine them on their ability to perceive.
20 THE COURT: Certainly you can.
21 MR. HARR: I can cross-examine them on, you know,
22 who told them what, or, you know, all of that good stuff. Can
23 I say, you know, something like, "Are you a Scientologist?
24 Doesn't that make you a liar? Isn't it true because you hold
25 this position," or something like that. That would probably
26 fall within the area of 789 that we have discussed, because
27 that would be a clear, direct attack on them, on their
28 credibility. I'm not bolstering their credibility, I'm not
91 Amanda M. Fagan, C.S.R. #8764 RPR
1 attacking their credibility. I'm offering another plausible
3 THE COURT: What's the difference between asking
4 them if they're a Scientologist or if they believe in the fair
5 game doctrine that's related to Scientology?
6 MR. HARR: I hear what you say, your Honor. I
7 apologize. I'm not sure what you mean.
8 THE COURT: There's no difference, as the Court sees
9 it. I think it's exactly the same question. I think it falls
10 within the same purview. As the Court indicated this morning,
11 I don't think that -- that if we're going to conduct any
12 inquiry that it is outside the purview of 789. I think that
13 any time we make an inquiry as to someone's belief,
14 irrespective of what the religion, what the belief, whether we
15 call it a tenet, whether we call it a policy, whether we call
16 it an unwritten directive, I think that falls within 789. And
17 the concern that the Court has is that although the Court
18 believes there might be some relevance to the credibility
19 issue, I think 789 stops us. And if that doesn't, certainly
20 the inability of the witness, the expert witness to testify as
21 to what the -- what the practice was in 2000 would eliminate
22 him as an expert. So I think under either prong, I think 789
23 does apply.
24 The Court thinks that -- believes at this moment
25 that that's the way it's going to rule. Do you want to
27 MR. HARR: Yes, your Honor, I do.
28 THE COURT: Sure.
92 Amanda M. Fagan, C.S.R. #8764 RPR
1 MR. HARR: I've read the People's pleadings in this
2 matter. And they've cited various examples to show how this
3 doctrine might apply in certain instances. The most recent
4 one in their pleading today was, you know, something about a
5 neo-Nazi doing this, that, or another thing to a synagogue
6 perhaps and then saying, "Well, I can't -- you know, I can't
7 do this," you can't defend yourself and that. The scenario
8 that was played out, that was described in that pleading, you
9 know, that would be an obvious application of 789.
10 In the current case, the heart of this is
11 credibility, not bolstering credibility, not attacking
12 credibility, credibility which is the purpose -- I don't mean
13 to sound like I'm preaching to the Court. But the purpose of
14 the trial is to try to get at the truth, and to have everybody
15 get their say in. And in the sense of 789, usually that's in
16 the case of, "Well, isn't it true you are an atheist, or maybe
17 you don't believe in God, so you shouldn't take an oath,"
18 something along those streams, "Get out of here," you know,
19 "You swore or affirmed to tell the truth."
20 In this case the concern, if I understand it
21 correctly, is a belief that engaging in essentially criminal
22 activity, and I don't see that lightly, engaging in criminal
23 activity, suborning perjury for example, is somehow protected
24 by a statute that says you can't look into a religious
25 practice. In the current case we have just the flip side of
26 that. For example, First Amendment -- I'm not trying to get
27 off the subject here. I know where I'm going here. First
28 Amendment, Keith Henson can say whatever he can within the
93 Amanda M. Fagan, C.S.R. #8764 RPR
1 bounds of the First Amendment. When he steps over the line,
2 if he actually engaged in a threat, the law doesn't protect
3 him anymore.
4 Same with 789. 789, you have a religious belief,
5 you have a religious practice, we don't go there, we can't.
6 But you go over the line, and there's credible information
7 that suborning perjury is a tactic that can be used, that goes
8 beyond, in my argument, beyond 789 as not what the statute is
9 intended to be there for. And there's no case on point to say
10 that this can't be done.
11 Thank you, your Honor.
12 THE COURT: Mr. Schwarz, anything?
13 MR. SCHWARZ: I would only say, I would only comment
14 this, your Honor. That from Counsel's -- Counsel wants to
15 have his cake and eat it, too. And the reason why is that he
16 believes that it's not -- first he argues that it's a
17 religious tenet, and then he's saying it's not a religious
18 tenet, it's a practice because -- because in his opinion it
19 can't be a religious tenet because it somehow, you know, to -
20 if we even believe, this is only if you believe the lying,
21 cheating, stealing is -- we can attribute to the
22 Scientologists as their religious tenet. But assuming that it
23 is, somehow Mr. Harr believes that that really isn't a
24 religious tenet, can't be one, and he therefore is somehow
25 opined that they can't hide behind the First Amendment or 789
26 because that's not really a religious tenet. That is his
27 argument. And if it's not that, if -- we're not going to
28 introduce it for the purposes of religious tenet, it's somehow
94 Amanda M. Fagan, C.S.R. #8764 RPR
1 an alternate theory about what has occurred.
2 Mr. Henson either posted these documents or he
3 didn't. And the only question in this trial when my witnesses
4 take the stand is whether or not they were scared. And again,
5 this goes back to the fact that Mr. Harr readily admits that
6 he can talk, he can cross-examine about their perception, he
7 can talk about their body language or whatnot. That's his job
8 as a defense counsel. The only reason it boils down to the
9 fair game as even being argued in this case is basically to
10 besmirch the fact that they are Scientologists. And if -- the
11 fact is that if Mr. Olive's only testimony that he can do is
12 say that, "Fair game existed, and I'm a Scientologist, this
13 happened while I was in Scientology, that thereby I was taught
14 to lie, cheat and steal," the necessary inference, your Honor,
15 is that these Scientologists are lying, cheating and stealing
17 So it gets back to the very same thing I said
18 before, your Honor, that he is trying to essentially elicit
19 testimony or trying to attack testimony based on an expert
20 about their veracity. That's really what it boils down to.
21 This person is supposed to shed light or attack the
22 credibility of their veracity. And we can't do that.
23 Otherwise, your Honor, then I would be allowed to -- if this
24 were the case, a necessary end would be I could have them take
25 polygraph tests and have the expert get up and tell them,
26 "Well, they're telling the truth because I'm an expert in
27 polygraph." And that would be a lot better, because at least
28 the polygraph people or the polygraph tester would have at
95 Amanda M. Fagan, C.S.R. #8764 RPR
1 least met them. Mr. Oliver has not. He hasn't even met them.
2 What he's trying to do is, he's trying to allege that a tenet
3 or some dogma is being -- is attributable to every
4 Scientologist in the country and in the world, all eight
5 million of them. So it would be akin to this, your Honor.
6 THE COURT: Counsel, don't give me any more
7 analogies. Just finish your argument.
8 MR. SCHWARZ: My only other argument is this, your
9 Honor. Clearly 789 applies. And if the Court -- I think the
10 Court is correct when it goes down to 352 argument, because it
11 is clearly too prejudicial to just, for the very fact of some
12 alternate theory, to besmirch the Scientologists as a
13 religion, as a group of people, for that sole purpose. If
14 it's not to attack the credibility, then that really is the
15 only reason. As Mr. Harr indicates, that's really the only
16 reason we are doing this, so Mr. Oliver can say how bad
17 Scientologists are, and because they are Scientologists don't
18 believe them, there is an alternate theory, this entire
19 proceedings is a sham. And I don't even know how I fit into
20 this, your Honor. I'm the District Attorney, and we're the
21 ones that are charging Mr. Henson. So I can't -- I can't
22 imagine what exact -- his purpose is.
23 So I would respectfully request not to have this
24 person even qualified, because he doesn't have an area that he
25 can actually testify and be an expert on, your Honor. Submit.
26 THE COURT: Okay. The Court believes that the
27 prejudice of such testimony would far outweigh any probative
28 value, and therefore will not receive evidence of the fair
96 Amanda M. Fagan, C.S.R. #8764 RPR
1 game doctrine. Question of 789 I think is a little different,
2 and the Court will not rule on that issue at this time. Any
3 reference to the fair game doctrine will be -- will not be
5 Okay. That being said, let's now go back to the
6 issue of the items set forth in Number 1 offered by the
7 People, Number 11, 12. With respect to Number 11, the Court
8 believes that it -- that there is a 352 problem with this as
9 well. It's from 19 -- it may be from 1995. There's nothing
10 to authenticate the time and the surrounding circumstance of
11 the threats in the summer of 2000.
12 MR. SCHWARZ: Your Honor, can the People be heard?
13 THE COURT: No. You'll just go around and around,
14 and the Court's already made a determination. Thank you.
15 MR. SCHWARZ: Thank you, your Honor.
16 THE COURT: I don't mean to cut you off, Counsel,
17 but I've given you ample opportunity.
18 MR. SCHWARZ: I appreciate that, your Honor.
19 THE COURT: Okay. All right. Because there is -
20 it is uncertain as to the time, the Court is going to not to
21 authenticate Number 1. Number 11 and Number 12 can be taken
22 up at the same time. And that is the issue of whether or not
23 these -- the stipulation by the attorneys constitute an
24 admission on the part of the defendant. Those documents were
25 introduced in the collateral civil proceedings; am I correct?
26 MR. SCHWARZ: Yes, your Honor.
27 THE COURT: And at that time the attorneys
28 stipulated to the entry of a whole series of documents which
97 Amanda M. Fagan, C.S.R. #8764 RPR
1 -- among which were People's 11 and 12; is that correct?
2 MR. SCHWARZ: That is correct.
3 THE COURT: All right. I'll listen to very brief
4 argument on whether or not -- and why the Court should deem
5 these an admission when it's unclear from the record the
6 purpose for which they were admitted.
7 MR. SCHWARZ: Your Honor, there are -- I apologize.
8 THE COURT: It's all right.
9 MR. SCHWARZ: Your Honor, the -
10 THE COURT: I've interrupted you, so it's okay.
12 MR. SCHWARZ: Your Honor, I have Mr. Rosen, who is
13 the attorney of -- counsel in the audience who conducted the
14 trial. He informs me, and we can take testimony, that -- if
15 that's the Court's desire -- that it was -- these documents
16 were admitted for all purposes. They were admitted into
17 evidence to -- with respect to authenticity, with respect to
18 dates, and times, and whatnot, for all purposes in this
19 particular proceedings. The People would argue that since the
20 defendant had waived that with respect to authenticity that he
21 is collaterally estopped at this point from denying that they
22 are, in fact, authentic if they were used in a trial before,
23 your Honor.
24 THE COURT: Why is he collaterally estopped? One
25 was a civil trial.
26 MR. SCHWARZ: Yes, your Honor.
27 THE COURT: Am I correct?
28 MR. SCHWARZ: Yes, your Honor.
98 Amanda M. Fagan, C.S.R. #8764 RPR
1 THE COURT: And this is a criminal trial.
2 MR. SCHWARZ: Yes, your Honor.
3 THE COURT: I know your argument about the
4 preponderance of the evidence, but let's look at that issue,
5 civil trial versus criminal trial.
6 MR. SCHWARZ: Absolutely, your Honor. Well, as the
7 Court knows, that in reverse -- for example, and I hate to use
8 this, but the O.J. Simpson case, your Honor. The testimony
9 that was taken by various officers and by various experts, if
10 you will, were allowed because -- in that trial to be used in
11 the civil trial, your Honor. You can't now raise -- and
12 between two civil cases, your Honor, estoppel applies. At
13 least the People would argue that, that if you admit to it in
14 one proceedings which is before the Court, and you're supposed
15 to give the Court an honest or -- and the Court is supposed to
16 ferret out the truth, whether civil or criminal, your Honor, I
17 don't know how the defendant now in the same -- in another
18 proceeding where he's supposed to tell the truth and whatnot
19 can now say that that's not authentic. The People have a
20 difficult time finding out how that's -- how on one hand you
21 can admit it and stipulate to and authenticate it, and in the
22 second in some other proceedings now deny it. That would be
23 the People's argument. Of course, we leave it in the Court's
25 THE COURT: Thank you. Counsel?
26 MR. HARR: Your Honor, I think the issue is what you
27 pointed out. If the attorneys stipulated to it, there's no
28 indication from the -- what's been provided to the Court here
99 Amanda M. Fagan, C.S.R. #8764 RPR
1 that Mr. Henson knew the consequences or all the consequences
2 of this, and whether he actually authenticated it. Yes, his
3 attorney did agree that it could be admitted, that there was
4 no objection. But I don't see anything in there that
5 Mr. Henson actually agreed to or authenticated it.
6 THE COURT: Well, the question, Counsel, the Court
7 has is not whether Mr. Henson knowing what he was
8 authenticating, but did he authenticate those documents. And
9 from the record it does not appear that he authenticated them,
10 that his attorney introduced them. Now we have Counsel for
11 Scientologists; is that correct?
12 MR. SCHWARZ: Mr. Rosen, yes.
13 THE COURT: Mr. Rosen?
14 MR. SCHWARZ: He's out in the hall.
15 THE COURT: We have Mr. Rosen, who was the attorney
16 for the Scientologists, who is going to tell us what he
17 believes they were introduced for.
18 MR. SCHWARZ: Absolutely.
19 THE COURT: But we don't -- that's his opinion. We
20 don't have Counsel for the defendant here. I mean, you could
21 get Counsel if you want to, and then we might be able to find
22 out. But I don't even think that would be helpful. I think
23 we'd be plowing that ground for a couple of days and not being
24 able to reap anything from that harvest. So I don't think it
25 makes any difference if we have testimony from the attorneys
26 as to what they intended. I think the intent was what the
27 defendant intended in that proceedings, and that is not
28 evident from the record.
100 Amanda M. Fagan, C.S.R. #8764 RPR