HERE IS AN ENTIRE SUMMARY [TAX MATERIAL AT (II)(2) ]. In 1995 Lisa McPherson was held at the Scientology cult's Fort Harrison Hotel HQ in Clearwater (Florida) for 17 days without proper food and water, until she died of thirst having lost 1/3rd of her body weight. The family are suing for wrongful death.
The defendant CofS sought to have the case thrown out on summary judgement i.e. to show that there were no remaining admissible facts worth putting before a jury. Combined with that they sought to have the action struck out, with sanctions against the dead girl's family, on various grounds of impropriety by their attorney including, inter alia, that the action was a "sham pleading" i.e. it had been knowingly brought on the basis that there was no arguable case at all. The summary judgement was rejected last November. The court has also just ruled on the other matters, in essence that the large part of the complaint at very least has enough factual questions to be determined at jury trial, still less is it "sham" without arguable basis.
The defendant ask for a number of remedies including striking out the complaint, ruling for the countercomplaint, and disqualification of the family's attorney. A large amount of material was submitted in this matter, including 35 days of evidentiary hearings. This is the ruling based upon them. The defendant's motion raises three issues, (I) whether the complaint was a sham pleading, and/or (II) whether the family's attorney was involved in acts of perjury or other misconduct, and (III) whether the attorney should therefore be disqualified from the case.
(I) SHAM PLEADING.
The main parts of the complaint not only have an arguable base but also issues of fact which need to be determined by a jury precluding summary judgement. Other parts of the complaint had an arguable base, but the argument has been rejected and they have been ruled out on technical grounds [mainly that the opinion of an expert is only admissible to help interpret evidence of fact which is already before the court, and cannot be presented in a vacuum without such grounding as evidence in itself]. None of it is a deliberate sham presented without any arguable basis. COUNT 1, wrongful death, goes ahead for trial. COUNT 5, negligent injury short of death, goes ahead for trial. COUNT 2, inflicting emotional distress, is rejected because it is based only on expert opinion without factual evidence. COUNT 3, wrongful imprisonment, was rejected by another court. This court believes ruling it out was wrong (but not so "clearly wrong in law" to definitely overturn the ruling), that it has issues of fact, so it is certainly not sham. COUNT 4, battery, is not relevant since not alleged to be sham. The only disputable part of the complaint is to whether "there was an intentional decision that Lisa should die, (a) made by CofS leader David Miscavige, and (b) put into action by the three junior members caring for Lisa, (c) in order to avoid bad publicity connected with her departure from the group."
There are arguable points of fact as to whether the junior members intended Lisa's death. Though the family can prevail in damages without showing a bad motive, there are arguable points of fact as to their bad motive so that is not a sham allegation. The question whether Miscavige knew is rejected summarily for the same reasons as count 2, that to go forward at all it requires to be based in some issues of fact, the family cannot simply base it on the opinion of an expert who was once on Miscavige's staff that in his experience it was credible Miscavige did so. There is no discussion how credible it is Miscavige did so, unless there is first factual evidence to show he in fact did so. But is not so poor a basis as to make the allegation a deliberate sham.
There certainly is evidence that other senior officials knew, though this is not enough to show Miscavige knew. This section arose when the family attempted to add them and Miscavige as defendants -- could not do so because of a contractual agreement -- then found an alternative way of adding Miscavige. Certainly there were issues of fact to go before a jury when those names were present, it is only now none but Miscavige remain that there are no issues of fact. The defends acted unreasonably in trying to show the whole complaint was sham on the basis of those lines: it should simply have moved to strike those lines. CofS chooses, separately, to sue for abuse of process, and there are issues of fact about the pleading to be argued in that case -- but not here. The complaint cannot be dismissed as sham. The main body of it raises issues of fact which will go for jury trial.
(II) SUBORNATION OF PERJURY.
CofS allege that the family's attorney involved himself in perjury or other abuses by witnesses. Firstly that he did this to conceal loans of money and conceal a specific $500,000 cheque. Also he did so to conceal a purported secret agreement on the disposal of damages recovered, and allowed improper interference in the case by Minton as funder [and helped him withhold materials from deposition]
(1)DONATIONS. The appellate court has ruled that the defendant cannot enquire into the family's funding. Even if anyone lied, they did not "lie to the court issues material in determining the case", so there can be no perjury. For this reason no finding need be made.
(2)COCEALING THE $500,000 CHEQUE. The same reasoning could be applied to the specific cheque, but it has been raised in the hearings so "the cat is out of the bag" and it can be discussed. Specifically it was a counter cheque which Minton says he paid to have issued by the Union Bank of Switzerland, on their account at the Chase Manhattan Bank in America. He takes the fifth amendment on where, presumably another foreign bank account, that payment came from. UBS won't say and can't be made to. Dandar says that without that information the whole matter should be stricken, since there is no evidence it is from Minton; he says Minton told him it was from his friends in Europe. Minton says his original deposition of paying total $1.05M into the estates legal costs was untrue, in that it left out this extra $0.5M. And why pay it by untraceable means? Minton says this was so Dandar could put it into new case expenditure while concealing it from staff/consulatants who had gone unpaid. So who is telling the truth?
Strictly the matter is unproven either way, so the defence contention fails anyway. But they have called a prominent attorney a perjurer and a crook: it would be unfair to him to stop here, without some determination whether or not he is. Do the reasons alleged for Dandar to conceal the cheque make sense? No. Why stiff a few employees out of small amounts, at the risk of losing his whole earning capacity as a lawyer? As to not wanting CofS to track the source, THE SETAE had done well repeatedly in the appellate court at keeping CofS right out of their finances anyway. Minton OTOH had clear and obvious reasons to conceal the money flow, viz it is clearly obvious he evaded taxes which were due when the money was earned and/or brought into the USA.
Quite simply this is not the only foreign cheque floating around. There is a second $500,000 counter cheque he paid to have issued on an account of the Dresden Bank of Zurich. Then there is $300,000 in bank draft he handed to Mr in Norway so Luanda could donate "his own" money into the LMT. Minton apparently kept the full details of this from his mistress, Stacy Brooks, "so that it could not be forced out of her in deposition." Minton says a second attorney acting for him personally, John Merrett, knew the money was really Minton's and counselled him to conceal this. Merrett also denies any knowledge. He says Minton represented the Norwegian cheque as from "an unknown donor" and did not tell him about the UBS cheque at all. Minton says he told Jesse Prince and others what was happening when Dr Garko was present; Dr Garko reckons Minton then actually said he had no more money to donate.
And there's more: $0.5M paid through Gerry Armstrong in Canada.
Also $2.0M paid to Peter Alexander of Courage Productions for
making an anti-cult film called The Profit. He told Alexander
that this was his money. It is likely that he precisely could
not tell either of the attorneys because, as officers of the court,
they might be forced to disclose it if they knew. Why, when he
changed his testimony, did Minton "come clean" on the original
$500,000 but hope to keep the Canadian and Norwegian cheques
still concealed? Presumably he thought the game was up on
the first one, but the others were still safe.
>The reason he tried to continue his lie is simple:
>Minton will lie whenever he thinks he can get away with it.
Why did he keep these cheques secret? He says because he knew the CofS were preparing a RICO case, but more likely for tax evasion. He was increasing under pressure to disclose these issues, and this is around the time Stacy says he was very troubled by problems at deposition. After a new cheque for $250,000 was then issued to Dandar, he became suddenly very keen that Dandar bank it forthwith and tell him whether there had been any enquiries about it. IN March this court was at the point of holding him in contempt over non-diclosure. Within a week he started settlement talks with CofS. Early in the game, in 1998, CofS had also come to him demanding total surrender i.e. back away from every courtcase where he was helping people they had harmed or ripped off. That time the blackmail threat had been to tell his wife about the continuing affair with Stacy. This time, again, they wanted all such cases to go away and a refund of all the money he had cost the cult by helping their victims. After the first day of negotiations he got hold of Dandar, and of the family, urging them to drop the wrongful death case for his protection, and asked Dan Liepold to withdraw affidavits Dan had made.
The cult would not adjourn the contempt proceedings short of his complete surrender. If he could not get the cases dropped, then he could enter new and different testimony which would get the cases thrown out. On 2002/apr/06 Minton and Brooks finally signed new affidavits. The plaintiffs say this was because of blackmail; but there is no requirement to make a finding on this, as they have no similar motion to dismiss. With regard to all the above considerations, the court therefore rules that Minton was lying and there was no impropriety by Dandar.
(3) THE SECRET AGREEMENT. The cult says there was a secret agreement between the family and Minton that most of the damages would be paid into an anti-cult organisation. The court rules that the family had no agreement in any legally meaningful sense, not with any other party and not which could hold them to do anything they now chose not to. The court analyses some of the material relevant to this, but only enough to find there is no agreement. Minton became involved with the case in 1997. The cult represents this as an "investment", but there is no evidence to support this. Minton says he floated the idea of such a disposal with Dandar, who then put it to the family. At that time it was to be Fatten. Apparently Dandar did discuss some such idea with the family, and Minton then mentioned it on a radio programme. It could not have been the LMT, which did not exist at the time. Dandar agrees that something of the kind was said and raised with the family; what is missing is that they never made any kind of binding commitment to an outside party. There are three reasons why this is not an agreement: (a) nobody could now benefit from it, (b) nor could it have been for the LMT which did not then exist, and (c) the discussion among the family was months after the original idea. The testimony CofS got from 83-year-old Ann Carlson in deposition is no help, as this refers to LMT when it did not exist. At this point we draw a line and say "no more", because enough has been analysed to show there was no agreement. So why does this agreement and its denial feature so much in Minton's testimony?
Minton says Garko became worried about the agreement. Garko, called as a CofS witness, says this did not happen and there was no agreement. Minton says he "admits" his previous denial the agreement existed is false, and was drawn up by Dandar. Not only is this "admission" untrue, but it is clearly evident that the earlier denial was drawn up by Merrett instead. All Merrett remembers about secret agreements is that the CofS started asserting there was one, and at that point Minton made clear there wasn't. Brooks simply doesn't have the necessary knowledge to comment. There is only one reason why Minton would start saying the secret agreement existed after all, namely that it had been for a long time at the core of CofS' allegations of wrongdoing and now he had agreed to enter new testimony supporting the CofS position. The court therefore finds that Minton lied, and Dandar neither lied nor counselled Minton to lie.
(4) CASE CONTROL. The allegation is that Minton interfered to make Dandar "put more Scientology in the case", supposedly at a dinner held in August 1999. The evidence, even Minton's own, does not support the idea that the dinner and a new $250,000 cheque made Dandar either add the name Miscavige or the charge of wilful murder to the complaint. In fact Minton says he counselled against adding Miscavige. He now says he agreed to this at a 'secret meeting'. He made similar representations before Judge Baird, and his testimony has continued to change on various points with passing time. In particular, he says there was a discussion about keeping the meeting secret as they went down in the elevator, at a time when Dandar was still in his old (ground floor) offices. If this meeting happened at all then it must have occurred during November. Brooks gives a slightly different account, and Garko yet another. Weinberg pressured Garko into resigning from Dandar's office and appearing as a defence witness. Garko's version is that there was no strategy meeting at all, just a casual encounter. It is impossible to get to the bottom of this because the witnesses contradict each other. But even from Minton's own testimony it is clear he was often opposed to the things he supposedly promoted, rarely got his way on things he did want, and had no improper influence or control. The court finds that Dandar ran the case, on behalf of his clients, and was not subject to improper influence. (5) WITHHOLDING DEPOSITION MATERIALS. The court finds that Brooks and Minton did this and probably are liable to civil contempt proceedings for it, also for perjury in the event that the DA makes no criminal contempt proceedings, and finds that Dandar had no involvement in this.
Therefore the court likewise finds that Dandar did not involve himself in perjury or other improper conduct, on any of the five grounds which the defines allege.
(III) DISQUALIFICATION OF COUNSEL.
The third issue is really rooted in the first two, i.e. the defendant CofS asserts that Dandar should be disqualified as counsel because he was involved in making sham pleadings, or else in perjury and other improper acts. The court has ruled that there were no sham pleadings, and no improper acts involving Dandar. Removal of counsel must be done in the interest of, and to increase, fairness in the equal treatment of the parties. This would not happen if Dandar were removed as counsel, even with a delay in hearing date: it would be impossible to effectively replace him at this stage, and greatly harm the plaintiff's case.
The normal causes for removal would be that the attorney concerned had an unfair advantage by inside knowledge of the opponent's case; or in case of breaking a court order, where the result of doing so is to give him an improper advantage. Also where there is a conflict between the person being a material witness in the events and being an impartial attorney: which might occur if CofS brought a separate case for abuse of process, but not in the present case. If the defendant CofS alleges that Dandar acted improperly with the plaintiff's funds; that is simply not their business, it does not change the balance of advantage in the case being litigated, they can report him to the bar and ask it to take disciplinary proceedings, but not disrupt the case with it. Anyway, the court finds there was no financial impropriety by Dandar. The secret agreement would not have been unlawful if it existed. The discovery violations were by Brooks and Minton, not Dandar. There was no improper interference in the case. There were no sham pleadings. There are not even grounds to say there was an appearance of impropriety. Had there been so, it would still not have been in the interest of justice or balance to disqualify the plaintiffs counsel. Therefore, on the third issue, the court rules there is no basis for disqualifying Dandar as counsel.
The court rules that there has been no sham pleading, no involvement by Dandar in perjury or other wrongdoing, and no reason shown to disqualify Dandar as counsel. For these reasons it is ORDERED that the defines motion for termination with sanctions is denied, the plaintiffs request for counter-sanctions is denied, and no motion to reconsider will be accepted on this issue.
-- "Mr Minton was questioned by attorney's for the dead woman's family on three areas where the cult may have threatened him with lawsuit or prosecution, but there was only one upon which he took the fifth amendment: whether Cof$ threatened to report him for tax evasion." alt.religion.scientology<[email protected]>2002apr28+ "I think MrMinton is in all manner of trouble," Judge Schaeffer said. "Mr. Minton has perjury problems. Mr. Minton has contempt problems... I think Mr. Minton has IRS problems."+++++++++++++++++++++++++++++++ Court documents: http://www.whyaretheydead.net/lisa_mcpherson/bob/