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VOLUME V TRIAL
TRANSCRIPTS, 2-12-01
IN THE CIRCUIT COURT IN AND FOR
PINELLAS COUNTY, FLORIDA
CASE NO. 99-7430-CI-08
:
CHURCH OF SCIENTOLOGY FLAG SERVICE :
ORGANIZATION, INC., a Florida :
corporation, :
:
Petitioner, :
:
vs. :
:
ROBERT S. MINTON, JR., ET AL., :
:
Respondents. :
----------------------------------------x
BEFORE: The Honorable THOMAS E. PENICK, JR.
PLACE: Pinellas County Judicial Building
545 First Avenue North
St. Petersburg, Florida
DATE: February 12, 2001
TIME: 9:00 A.M.
REPORTED BY: JACKIE L. OSTROM
Court Reporter
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ORDERS TO SHOW CAUSE
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Pages 551 - 663
Volume V
ROBERT A. DEMPSTER & ASSOCIATES
P.O. BOX 35
CLEARWATER, FLORIDA
(727) 443-0992
.
APPEARANCES
The Honorable THOMAS E. PENICK, JR.
CIRCUIT COURT JUDGE
F. WALLACE POPE, JR., ESQUIRE
JOHNSON, BLAKELY, POPE ET AL
911 Chestnut
Clearwater, Florida
MICHAEL LEE HERTZBERG, ESQUIRE
740 Broadway, Fifth Floor
New York, New York 10003
Attorneys for Church of Scientology Flag Ship
Organization
JOHN MERRETT, ESQUIRE
2716 Herschel Street
Jacksonville, Florida 32205
BRUCE G. HOWIE, ESQUIRE
PIPER, LUDIN, HOWIE AND WERNER
5720 Central Avenue
St. Petersburg, Florida 33707
Attorneys for Robert Minton and
Lisa McPherson Trust, Inc.
. 553
1 PROCEEDINGS
2 THE COURT: All right. Are we ready to
3 proceed?
4 MR. MERRETT: Yes, Your Honor.
5 THE COURT: All right. When we broke
6 for lunch the plaintiff said they had
7 presented their evidence and we are ready to
8 shift sides now.
9 MR. MERRETT: Yes, Your Honor. At this
10 time on behalf of the defendants other than
11 Mr. Minton I have, I'm afraid, a rather
12 lengthy motion for judgment of acquittal to
13 make.
14 THE COURT: Okay. You may proceed.
15 MR. MERRETT: Thank you, Your Honor. If
16 I may, where I would like to begin is with
17 the injunction itself. Let's take a look at
18 what is actually prohibited.
19 THE COURT: Okay. Hold on just a
20 minute. I have the injunction.
21 MR. MERRETT: The reason that we start
22 here, Your Honor, is because the orders to
23 show cause issued by the court in this case
24 are for obvious reasons all directed to what
25 are alleged in the orders to show cause to be
. 554
1 violations of the injunction.
2 So, the first question is what exactly
3 is mandated or prohibited by the injunction?
4 Looking at page four of Temporary Injunction
5 Number One --
6 THE COURT: Hold on just a minute. Hold
7 on. Let me do this. I'm just trying to get
8 my staff attorney where he can see what
9 you're doing. Ian, come up here and sit in
10 the witness box to begin with.
11 (Whereupon, a pause in the proceedings took
12 place.)
13 MR. MERRETT: Where we look first is at
14 the actual prohibition for mandates of the
15 injunction. As the court is obviously aware,
16 the two forms injunctive relief can take are
17 mandatory and prohibited and this is,
18 although there is some I guess you could
19 optionally mandatory provisions. That is if
20 you're going to do A: You must do it in the
21 following manner, but it's essentially a
22 prohibitive injunction.
23 Looking at paragraph one of page four of
24 the court's Temporary Injunction Number Two
25 we see at the beginning the enumerated
. 555
1 prohibition. This is as to the respondent.
2 Who the respondents are is a matter that
3 I'll take up at another point in the
4 argument, but point one is the ten foot
5 rule.
6 Specific prohibition is that respondents
7 are prohibited from coming within ten feet
8 of any member of the Church.
9 The second prohibition in that same
10 paragraph is against blocking paths of
11 Scientologists or Scientology vehicles.
12 The third prohibition is against
13 inhibiting entry or exit to or from
14 Scientology property.
15 The fourth prohibition is against
16 engaging in harassment, or violence against
17 members of Scientology.
18 Now, going to the next page, the
19 injunction says that picketing, protesting,
20 and other first amendment exercises are to
21 be in orange areas only.
22 The court then went on and I won't
23 re-enumerate it. The court then went on to
24 make the prohibition and mandate bilateral
25 by imposing these same restrictions against
. 556
1 Scientologists as to the persons and
2 property of the respondents and by limiting
3 First Amendment activities of Scientologists
4 to green areas. In other words, what the
5 court crafted was a completely bilateral
6 injunction.
7 Then, a very short while afterwards,
8 because Mr. Pope detected ambiguity or
9 insufficiency in the court's order, the
10 matter was brought to you ex parte, without
11 notice again, a motion to clarify and
12 correct the injunction that you had entered
13 on November 30. And you entertained that
14 and you entered an order.
15 The portion of that order clarifying,
16 entered on December 1, which is pertinent to
17 what we're doing here at this point, dealt
18 with the actual meaning of the picture
19 restrictions that the court included in the
20 original injunction.
21 And I do need to advise the court that
22 the stamped-in original of the order does
23 not include the interlineations that are on
24 the copies that were furnished to counsel.
25 I don't think it matters right now, but it's
. 557
1 something the court needs to be aware of and
2 you may want to correct it as a housekeeping
3 matter. I'm looking at the court file here.
4 THE COURT: Let me see that.
5 MR. MERRETT: Yes, sir. Unless that's a
6 color photostat of the one you signed in blue
7 ink, there are interlineations on page two
8 the court added prior to signing on all of
9 the copies, on the true copies that the court
10 stamped which are not present there.
11 THE COURT: I'm sorry. I'm not
12 following what you're saying.
13 MR. MERRETT: If you would look at
14 paragraph three on page two of the order of
15 December 1.
16 THE COURT: Right.
17 MR. MERRETT: The second line, the laws
18 of the State of Florida and the applicable
19 rules of court is free to serve -- on the
20 true copies that the court sent out the court
21 inserted the word "legally" and then
22 initialled out in the right-hand margin
23 between the word "to" the word "serve".
24 THE COURT: That was on the copies?
25 MR. MERRETT: That's on all of the true
. 558
1 copies that you sent out.
2 THE COURT: Yeah.
3 MR. MERRETT: But as I say, that's more
4 of a housekeeping matter than anything else.
5 THE COURT: Needless to say, I thought
6 that had gotten on the original in the court
7 file.
8 MR. POPE: Your Honor, I certainly have
9 no objection to the court entering at this
10 time that order we've been operating under is
11 the one that says to legally serve.
12 THE COURT: What do you say,
13 Mr. Merrett?
14 MR. MERRETT: That's fine, Your Honor.
15 THE COURT: Mr. Howie?
16 MR. HOWIE: Your Honor, I have no
17 objection to the correction.
18 THE COURT: Is free to legally serve,
19 I'll put that on there and I'll initial it in
20 orange in the court file. Okay. Thank you
21 for calling that to my attention.
22 MR. MERRETT: May I proceed?
23 THE COURT: You may. Oh, yes.
24 MR. MERRETT: With respect to this
25 subject matter to the actual -- what I intend
. 559
1 to deal with first which is the what is
2 alleged to have been picketing activity
3 violative of the order, the clarification
4 that the court made is very important and not
5 for any sharp or clever reason, but for a
6 very plain reason that become abundantly
7 clear in just a minute.
8 THE COURT: Okay.
9 MR. MERRETT: What the court said was or
10 recognized that on its face the injunction as
11 originally entered would have, for example,
12 if Mr. Minton got a raw deal at Best Buys
13 would have prohibited him from going to the
14 Best Buy store in Pinellas County and
15 picketing in front of the store because of
16 the way it was worded.
17 Now, in clarifying that the court
18 specified that the restrictions that were
19 imposed applied and kind of stated in the
20 negative: Nothing in Temporary Injunction
21 Number Two shall be deemed to prohibit the
22 defendants from peacefully exercising their
23 First Amendment rights in any other location
24 in Pinellas County outside of those areas
25 denominated on the diagrams, okay.
. 560
1 So, essentially what the court says in
2 that paragraph is that the prohibitions
3 apply with respect to picketing or I'll just
4 first call it First Amendment, only in the
5 areas on the diagrams.
6 Now, there is another inherent ambiguity
7 that you probably picked up by now, which
8 is, even as it presently stands it appears
9 to prima facie prohibit me from praying on
10 the street in front of the Lisa McPherson
11 Trust because the exercise of First
12 Amendment activity says limited to orange
13 areas, but that's not something we're
14 talking about today.
15 The reason that this is important is
16 this, Your Honor, and it is clear as I've
17 mentioned before, the amount of thought and
18 effort that went into the creation of this
19 injunction, because the injunction looks not
20 to or not strictly to the requests of the
21 parties, not strictly to the arguments of
22 parties. It looks to the problem as the
23 court perceived the problem and the
24 situation having been presented based on the
25 evidence.
. 561
1 And having done that, one thing, one
2 thing that it is clear the court did not
3 intend to do and did not do is to prohibit
4 picketing. Clearly that's in the plain
5 language of the order clarifying. It says:
6 And to permit picketing in particular areas.
7 Now, the court has probably more copies
8 than it wants of the injunction and the
9 accompanying diagram. What I need to point
10 out to you is this.
11 If you string it together and I'm only
12 going to deal with the properties that have
13 been dealt with in the course of this
14 proceeding.
15 The areas that we've been talking about,
16 whatever went on, whatever the court decides
17 went on, everything that you're looking at
18 right here, if you start taping the diagrams
19 together is on the diagrams. There is no
20 question about that. And the diagrams for
21 obvious reasons because of what it is the
22 court intended to regulate, diagrams
23 obviously are not -- they're not what do
24 they call them? Architects elevations of
25 buildings. They're pictures of areas,
. 562
1 geographical areas of town.
2 Now, we have the prohibition against
3 picketing except in orange areas in the
4 areas that are shown on the diagrams.
5 That's what all this totals up to. And the
6 areas shown on the diagrams are all of the
7 city blocks which are -- what's a good way
8 to put this? From the Lisa McPherson Trust,
9 all way down to the far side to the south
10 side of the Ft. Harrison Hotel is all
11 covered on the maps.
12 Judge, you didn't prohibit picketing.
13 If -- pick somebody, one of the suppressive
14 persons, decides to go picket and how we
15 going to do that? Here's what we'll do.
16 We'll come out, what is -- nobody uses it,
17 but it's actually the front door of the
18 Trust, Ft. Harrison door, we'll get in a car
19 and go around the block and come up to here
20 and we'll come to where? We'll pull down
21 Park Street and we'll get out and we'll walk
22 or we'll go and we'll stop on this side of
23 Ft. Harrison and get out and walk to picket.
24 You got to get there somehow. You go by
25 car or you can go on foot. You didn't
. 563
1 prohibit us for walking. And in fact one of
2 things that was most impressive of the
3 injunction is that it did not prohibit
4 anybody from being anywhere except in the
5 context of picketing and in the context of
6 proximity to people who are somehow
7 connected with the other party.
8 Judge, since you didn't prohibit
9 picketing, you obviously did not prohibit
10 people going to picket and coming back from
11 picketing.
12 What this means is that clearly
13 necessarily and I would believe the reason
14 it's put together this way is because it
15 would be an absolute requirement to protect
16 the injunction from a serious constitutional
17 infirmity. I think this is why it's put
18 together this way. People have to be able
19 to transit to and from the approved areas of
20 picketing.
21 Otherwise, you would have done what I
22 can't believe the court intended to do which
23 is without saying so, prohibit picketing.
24 Sure, you can picket provided that you have
25 a jet pack. You can picket providing you're
. 564
1 trying to repel out of a helicopter. You
2 can picket provided that you can do it by
3 leaving your body.
4 I think if you were going to prohibit
5 picketing you would have said no picket.
6 One of the things that I have noticed in
7 my limited experience with the court is that
8 this court seems to have little trouble
9 expressing itself and I think if you were
10 going to prohibit picketing that's what it
11 would have said.
12 By not prohibiting picketing,
13 necessarily both as a matter of logic of the
14 face of these documents and I think as
15 probably a deliberate means to avoid
16 constitutional infirmity, the court has to
17 have left open the ability to transit
18 from -- I don't know what the right word to
19 use is, from a place of origin or refuge to
20 an approved place to picket and back.
21 I mean there is no saving -- there is no
22 way to get to picket without passing through
23 a zone which is not an orange zone in
24 possession of your picket sign.
25 That's the first place that we have to
. 565
1 start. And we'll come through when I go
2 through the orders to show cause themselves,
3 the number of times that the activity that
4 Scientology has brought before you is
5 clearly activity in transit.
6 Before I do that though there is a
7 couple of specific testimonial points that I
8 want you to consider with respect to the
9 issue of passing in transit.
10 Do you remember Mr. Avila testifying
11 that on, I want to say it was the 7th of
12 January, he photographed or videotaped
13 Mr. Minton, Mr. Enerson, Mr. Lerma,
14 Ms. Gogolla and myself on the south side of
15 the Coachman Building and then videotaped
16 everybody in front of the Super Power
17 Building and then videotaped everybody going
18 back in front of the Coachman Building, but
19 didn't videotape -- if you remember, he said
20 he wasn't sure whether they were walking
21 across the front of the Clearwater Bank
22 Building or across the front of the Coachman
23 Building, but he didn't videotape that part
24 of it, why? Because they weren't picketing.
25 They didn't throw away the Threep, which
. 566
1 you haven't heard by that name on the record
2 yet, but you know what we're talking about,
3 the pole that Mr. Minton was supposedly
4 carrying. We know what it is.
5 They didn't say that he pitched the
6 Threep in the dumpster behind the Coachman,
7 didn't say the picket signs went away,
8 didn't say that the megaphones went away.
9 In fact on cross-examination he said yeah,
10 they had all this stuff with them but they
11 were just walking, they weren't picketing so
12 I didn't videotape them.
13 So, obviously even Scientology through
14 its operative concedes that this right of
15 transit exists. Nobody thinks that you
16 don't have the right to walk to and from a
17 lawful place to picket. And I'm using
18 lawful here to be synonomous with in
19 compliance with the injunction.
20 Clearly you have the right to do that.
21 There is obviously, Scientology takes some
22 other sort of -- what is the word I'm
23 looking for, refined view of what the
24 injunction says and what these zones mean
25 because you saw Mr. Avila quite blandly
. 567
1 conceding that while there were picketers in
2 the orange zone on the south side of the
3 Ft. Harrison building, he, himself, entered
4 the orange zone on the south side of the
5 Ft. Harrison building for the purpose of
6 videotaping them.
7 So, we obviously know that nobody,
8 including Scientology, believes that these
9 are intended as specific restrictions on
10 what people are -- where people can go.
11 It's part of a picket and that's what you
12 have to look at is our people picketing and
13 what is a picket? That's the first point.
14 The second point which the court -- I've
15 created an uproar, Judge. This is the north
16 side of the Ft. Harrison Hotel.
17 THE COURT: I noted that and I was going
18 to correct you, but thank you.
19 MR. MERRETT: Okay. The next point, and
20 it's one which involves a substantial volume
21 of arcane law and I have cases. What I would
22 like to do is discuss it first and then
23 follow the court's guidance on dumping it on
24 you because it is about a boat load.
25 Under the rule that applies, under Rule
. 568
1 1.610, every injunction not only includes
2 the specific language, but I think it
3 actually deemed regardless of its exclusion
4 of the language to cover and I'm quoting
5 here from paragraph four on page five, it's
6 the same as applied to the respondent. It
7 cover members, officers agents, servants,
8 employees and those persons and entities in
9 actual concert or participation. And
10 interestingly on one of the occasions that I
11 read in researching this point, I know that
12 that concept in almost identical language is
13 included in the federal rules. I don't know
14 where else it appears in state law, but
15 interestingly one on the cases that I read
16 said that that application or interpretation
17 of the reach of an injunction actually goes
18 back before statehood. It was part of
19 territorial law when Florida was a U.S.
20 Territory in I think the first thing that
21 they cited on was from the 1820s. Anyway,
22 it's not a novel concept.
23 It is, however, as I said, a fairly
24 arcane concept. There is very, very little
25 law that says what that means and the reason
. 569
1 that I raised this point is this.
2 Hypothetically, in an older section of
3 town where lots are 50 feet apart lives Joe.
4 And he's got a roommate. They're renting a
5 house together. And they're not living
6 together as a family unit. They're in no
7 way involved with one another except as
8 roommates and they are in a dispute over the
9 lease.
10 Joe keeps bothering his roommate. He
11 won't go way. The roommate is trying to
12 throw him out. The roommate sues to find
13 who's got the right to be in the house. Who
14 has the lease and I want this guy to quit
15 bothering me, judge. And the judge makes a
16 preliminary determination that the roommate
17 is the one who owns the lease. Has the
18 leasehold interest in the house and not only
19 tells Bob to get his stuff and get out of
20 the house, but tells Bob to stay 100 feet
21 away from the house because Bob is such a
22 pill and such a pain, okay.
23 There is an injunction. A civil
24 injunction has been entered, which among its
25 other provisions whatever the basis for it,
. 570
1 requires somebody to stay 100 feet from this
2 house, okay.
3 Now, Joe's mom lives next door, well
4 within 100 feet of the house. Joe is
5 prohibited from going there, obviously, if
6 it's within 100 feet. The injunction means
7 what it says and Joe cannot go there. And
8 neither by operation of rule 1.610 can Joe's
9 agents, attorneys, etcetera, etcetera,
10 etcetera go to Joe's mom's house, whoever
11 those people might be.
12 Well, Joe hires me to represent him. He
13 wants me to go to a full blown trial on this
14 lease issue. He wants back in that rental
15 house. And guess who lives on the other
16 side of the house? My mom.
17 The question is, does the injunction
18 mean that I can no longer visit my mom at
19 her house. Because I'm Joe's attorney and
20 my mom's house is within 100 feet of the
21 property from which Joe is expressly barred
22 and the language of the injunction on its
23 face extends to attorneys, agents, servants,
24 etcetera, etcetera, etcetera, etcetera.
25 Well, there is one case that deals with
. 571
1 that in Florida and it cites to federal law
2 and there is as I said, a boat load of
3 federal law on what that means and as I
4 said, I'll make the argument first and then
5 maybe leave you the case law if you have
6 questions about doctrine. It may be
7 something that you're familiar with.
8 What the doctrine is and what it boils
9 down to is this. Mere present or former
10 association is inadequate to bring a person
11 who is not a named party within the
12 prohibitive or mandatory scope of the
13 injunction.
14 In order for a person who is not named
15 as a party and has not prior to violation
16 been brought within the jurisdiction of the
17 court by service of process within the power
18 of the court to punish by contempt of
19 violation, that person must be either
20 legally identified with a named served
21 party. That is it must share, that person
22 or entity must share legal identity or that
23 person must aid or abet the named person in
24 his own violation of the injunction.
25 The principle as it's been enunciated by
. 572
1 the federal court under which this extension
2 has made it very specific. It is to prevent
3 a named party who is clearly bound by the
4 injunction from accomplishing by indirection
5 or subterfuge that which is prohibited from
6 accomplishing directly by the terms of the
7 injunction.
8 Now, what you have that Scientology is
9 attempting to do in this particular
10 proceeding is to claim that this injunction
11 because of the mandatory language --
12 mandatory is the wrong word. Because of the
13 required language under Rule 1.610 applies
14 to everyone who is affiliated with a named
15 respondent party and that quite simply isn't
16 the law. And there is a couple reasons for
17 this.
18 In the first place, you could, if we
19 look at this -- the law as I say requires
20 legal identification of which there is no
21 evidence whatever. I mean, that's a term of
22 art. It doesn't mean that a lawyer said
23 you're identified with them. It's legal
24 identification and there is significant
25 amount of gloss on it in the federal cases
. 573
1 saying that this means someone identified
2 with a named party over whom the court has
3 jurisdiction that it may fairly be said that
4 through controlling their involvement in
5 litigation the unnamed party has fairly had
6 his day in court.
7 What they talk about is officers of a
8 corporation who have appeared in court as
9 the representative of the corporation during
10 the litigation leading to issuance of the
11 injunction.
12 That's an example of this kind of legal
13 identification. There is no evidence of
14 that with respect to any of the individuals.
15 Aiding or abetting a named person in his
16 own violation: An example. If Mr. Minton
17 had a serious case of Smart Alec and said,
18 look, I can't picket directly in front of
19 the Ft. Harrison. Here's what I want to do.
20 Mr. Merrett, you look like a sturdy lad.
21 I'll climb up on your back if you hold a
22 picket sign and I'll steer you with my
23 heels. If I carry him down there so he was
24 picketing, if I aided and abetted his
25 violation, if I did for him or help him to
. 574
1 do that which he is prohibited from doing,
2 then clearly I fall within the ambit of that
3 prohibition.
4 If, on the other hand, he instructs or
5 directs me. If he says you know what, I'm
6 not allowed to harass Scientologists, find
7 out where Ben Shaw lives, get an electric
8 bullhorn and stand under his window all
9 night and holler. That's -- I'm under the
10 injunction. Anybody is. Your bailiff is,
11 your assistant, but what Scientology has
12 attempted to do is to bootstrap that
13 language into a finding that anybody who is
14 critical of Scientology and knows Mr. Minton
15 or comes and goes out of the Lisa McPherson
16 Trust property falls within that prohibition
17 and that's not the law.
18 And if you think about it, the reason
19 that it is particularly poignant in this
20 case is that all of the behavior involved is
21 individual, personal behavior based on
22 findings of the court with respect to the
23 conduct of these specific named individuals.
24 In other words, there is not a way for
25 me -- I'm going to pick somebody. There is
. 575
1 not a way for whoever is getting on the
2 elevator on the first floor right now to
3 picket for Bob Minton. The only way for Bob
4 Minton to violate the injunction is by
5 picketing or going within ten feet of a
6 Scientologist.
7 If the case that they have presented to
8 you has any meaning, then that means that
9 but for the clarification that you made, I'm
10 violating the injunction right now because
11 I'm now within about five feet of Mr. Shaw.
12 Even if I never -- even if I weren't
13 anybody's lawyer here, I've been to the Lisa
14 McPherson Trust. I've hung out there. I
15 think Scientology is a noxious entity. I
16 share those interests and beliefs with these
17 people. Therefore, according to
18 Scientology, that's enough.
19 Not according to the law. Not according
20 to the law. And this is I guess the best
21 example.
22 If Joe's brother thinks the world of him
23 and really wishes like hell the roommate
24 would get out and give Joe the house back
25 and is funding Joe's litigation, paid Joe to
. 576
1 hire me, does that mean Joe's brother can no
2 longer go to his mother's house? No, it
3 doesn't. It doesn't.
4 As I say, I'll give you those cases
5 because it makes it very clear and this is
6 the conceptual point that I don't want to
7 attempt to use my limited skills to try to
8 lay it out for you at this point. I want to
9 give you the cases and let the court read
10 them, but the point is in order for a person
11 who is not named as a party to violate an
12 injunction, that individual has to be
13 causing or assisting in a violation by a
14 named party is what the case law says.
15 Otherwise, Judge, this goes on forever.
16 If Mr. Enerson is covered, Mr. Enerson's
17 barber is covered, because I'm sure that
18 Mr. Enerson's barber has heard Mr. Enerson
19 talking about Scientology and if
20 Mr. Enerson's barber one day wakes up and
21 says, you know, by God, I don't want this in
22 my town. I don't want this around here and
23 goes to picket in front of the Ft. Harrison,
24 we'll be back here if they're right.
25 Because, you know what? He's connected to
. 577
1 Mr. Enerson, Mr. Enerson, by their theory,
2 is connected to the Trust or to Bob Minton
3 or however it is he's connected and that's
4 not what this injunction means.
5 If somebody puts Bob Minton in a
6 wheelchair and pushes him up to the front
7 door of the Ft. Harrison Hotel, whoever has
8 his hands on the handle is in violation of
9 the injunction.
10 People who simply like Bob Minton, like
11 the Trust, hate Scientology and picket,
12 don't fall within what prohibition. That's
13 the second point.
14 (Whereupon, a pause in the proceedings took
15 place.)
16 The third point is this; far simpler but
17 maybe more interesting. Scientology has
18 rested. There will be no more evidence
19 produced.
20 We are now at the stage for a motion for
21 judgment acquittal. They've had every
22 opportunity to present the cases they wanted
23 presented. They have certainly had the
24 assistance of able counsel of their own
25 choosing.
. 578
1 This, as the court is aware, we
2 discussed this a while back, is criminal a
3 proceeding. In a criminal proceeding, if
4 you'll recall -- I believe -- actually I
5 know that this court has sat on the criminal
6 bench because I talked to a guy who is now a
7 judge in Jacksonville this morning who tried
8 one in front of a while back, several years
9 ago. He told me to bring my toothbrush, but
10 I don't know what he meant, but.
11 THE COURT: No, no, it was teddy bear.
12 Go ahead.
13 MR. MERRETT: There is an instruction
14 that you give that is confusing to a jury but
15 plain as day to a lawyer. It says: As to
16 every crimed charged there are two elements
17 what the State must prove. Number one, the
18 State must prove that the offense charged was
19 committed. I bet you know what number two
20 is. Number two is: Second, the State must
21 prove that the defendant is the person who
22 committed the crime.
23 Now, there is a lot of things that
24 become rituals or become so familiar as to
25 be wrote in a criminal proceeding are that
. 579
1 way as a matter of folklore. Some of them
2 are that way because it's the law. One of
3 the things that we always hear is what? Can
4 you point out the man who robbed you? Yeah,
5 that's him over there. I need you to tell
6 us who he is. He is the man in the white
7 shirt wearing the red tie sitting next to
8 Mr. Jones.
9 In other words, you can't go, you being
10 a police officer, a civilian witness, the
11 Minute Market clerk, whoever, you can go all
12 day saying; Mr. Jones, the defendant, the
13 guy, Bob, whatever, all day long, talking
14 about what you saw in what you did.
15 However, that second prong is not
16 established except by direct evidence that
17 the individual, the person who is before the
18 court on those charges is known to and
19 identified by the witness, not as a person
20 who is named in the paperwork, but as the
21 person who performed those events, who did
22 those acts.
23 That's why we do it that way. He's the
24 man on the witness stand in the gray suit
25 wearing the white shirt and the red tie.
. 580
1 Think harder, Judge. This is more
2 recent than the astonishing down spout
3 comment which brought us all to a halt. So
4 if you remember the down spout you remember
5 this.
6 You never heard that. You heard
7 videotapes identified as depicting what?
8 Names. That's Ms. Bezazian, that's
9 Mr. Enerson, that's Mr. Jones.
10 You heard witnesses sitting on the stand
11 saying Mr. Merrett did this, Mr. Minton did
12 that, Mr. Smith did that.
13 There was absolutely no evidence
14 whatever of which body belonged with those
15 names. That is a fatal, fatal flaw in any
16 criminal case. A failure to identify,
17 physically, specifically identify the
18 defendant as the person who has been
19 referred to in testimony, who has been
20 identified in exhibits and who committed the
21 acts that are complained of results in a
22 failure to meet that second over-arching
23 element of proving the defendant is the
24 person who committed the offense.
25 You didn't hear that about anybody.
. 581
1 That can't be proved by inferences, its
2 can't be proved by pictures, it can't be
3 proved by Mr. Pope standing up and saying,
4 Judge, for Pete's sake. look at them.
5 They're sitting in the audience. You know
6 who they are.
7 Because you sit as the trier of fact,
8 you sit just as though you were a jury. And
9 that wouldn't be sufficient identification
10 for a jury and it's not sufficient
11 identification here. Nobody, except I think
12 me, has been identified. I believe
13 Mr. Kronschnabl said and who is that and he
14 said Mr. Whatever he said and then he said
15 Mr. Merrett. He's the one sitting right
16 there and he described not the all together
17 unfavorably, my clothing. But other than
18 that, it didn't happen. Nobody was
19 identified. Now, that was the third point.
20 Where I'd like to turn now is to the
21 actual text of the amended and consolidated
22 order to show cause and I will move I think
23 rather more briskly here because I think
24 I've, as to most of the points I intended to
25 make, laid out the analytical underpinning.
. 582
1 The first allegation of the amended and
2 consolidated order to show cause is this:
3 On December 7, 2000 at or about 1:50 PM,
4 Bezazian was picketing on Ft. Harrison
5 Avenue side of the Church of Scientology's
6 Clearwater Bank Building, an area that is
7 not designated in orange on Exhibit A to the
8 injunction.
9 If you will recall the videotape, edited
10 as it was, unsure as its providence may have
11 been, the videotape showed her continuously
12 moving from somewhere up here, north of
13 Cleveland Street, along side the Lisa
14 McPherson Trust Building headed south and
15 crossing Cleveland Street.
16 She didn't stop and turn around. She
17 didn't go back and forth along side the
18 Clearwater Bank Building. She didn't go
19 back and forth in front of the Coachman
20 Building. She continued in transit from one
21 place to the next carrying her picket sign.
22 As I say, of the analysis underlying that I
23 believe already I've discussed exhaustively.
24 Secondly, and simply overwhelming with
25 absurdity is allegation, Paragraph B on page
. 583
1 two:
2 On December 8, 2000 at or about 7:00 PM,
3 Ms. Bezazian walked in front of the
4 Clearwater Bank Building along the Cleveland
5 Street side. Let's stop right there.
6 We already know that is not a violation
7 of the injunction. Absent proof that
8 somebody went within ten feet of a
9 Scientologist, thanks be to God and Thomas
10 Penick, we can go anywhere he want to in
11 Pinellas County, provided we're not
12 picketing.
13 So we know the first part of that is not
14 a violation and a judgment of acquittal is
15 required.
16 Secondly, we have the capital offense,
17 she sat in at large Santa Claus chair that
18 is Church property and is inside the
19 property line of the Church's building.
20 Now, mysteries abound. We live in a
21 world of mystery and the mystery here is
22 what is the Santa Claus chair? What are
23 they for? For what purpose do you put,
24 right around Christmastime, a big red chair
25 in front of a building?
. 584
1 Now, you heard no testimony that there
2 was anything in the chair. No nothing,
3 empty chair that she sat in.
4 What part of the injunction does she
5 violate, Judge? I looked and I looked and I
6 looked. I didn't see chair. I was sure
7 Santa Claus must be in there somewhere, but
8 he wasn't there either.
9 This is not a violation of the
10 injunction. The chair by all the evidence
11 was open and available to anybody that
12 happened to come by.
13 One assumes that the reason that you put
14 a Santa Claus chair out there is because you
15 either are or pretending to be welcoming to
16 the public and whoever happens to come by
17 and wants to get their picture taken in the
18 chair in front of the building in front of
19 the wreaths and all this business. That's
20 what they're there for, I think, unless
21 there is a Santa Claus it in which sitting
22 in the chair without Santa's permission is
23 bad if he's already in it. I'll agree with
24 that.
25 But it's an empty chair and there is no
. 585
1 part of that injunction which is violated by
2 sitting in the chair or by going on the
3 porch, by trespassing Quare Clausum Fregit
4 by breaking the clothes of the Church.
5 That's not prohibited under the injunction.
6 They want to start filing common law
7 trespass claims, you know, I'll go get my
8 old code pleading book and we'll go to town.
9 But it's not a violation of the injunction.
10 Neither sitting in the chair nor being
11 inside the property line of the Church's
12 building, assuming that that's been proven.
13 Now off-duty police officer Larry
14 Harbert about whom you will hear a great
15 deal more later on maybe, it says off-duty
16 police officer Larry Harbert spoke to
17 Bezazian and told her she was violating the
18 injunction but she argued with him and said
19 she had not, even though she admitted that
20 she had sat the chair.
21 I looked and I looked and I looked,
22 Judge. I didn't see where you prohibited
23 people being mouthy with the police. I
24 didn't see where you mandated people's
25 behavior toward the police as though they
. 586
1 lived in Romania. That is not a violation
2 of the injunction.
3 In fact, one of the good reasons for
4 staying in this country is that you can
5 pretty much say whatever you want to, to
6 whoever you want to. Certainly outside of a
7 courtroom you can. That does not prove
8 there was a violation and even if it was
9 proved, there is no violation.
10 Then it says: Bezazian, along with
11 Patricia Greenway and Mark Bunker, then went
12 onto the Watterson Street side of the
13 building and Ms. Bezazian stood in the
14 middle of the sidewalk blocking the Church's
15 staff who were going to and coming from
16 dinner and from moving freely along the
17 sidewalk.
18 Now, that raises an interesting point,
19 because what you did prohibit -- I just
20 couldn't leave that like that. What you did
21 allow is anybody can go anywhere they want
22 to provided that the ten foot rule is
23 obeyed.
24 What this raises is and it's being kind
25 of unfold upon study. It is bilateral in
. 587
1 its requirement and bilateral in its scope
2 and it actually imposes very evenly
3 calculated bilateral obligations.
4 Here's the point. This is the east side
5 of Watterson Street. Clearly under the
6 terms of the injunction if you stand back to
7 what Mr. Avila said, this is the street,
8 this is the sidewalk, this is the building.
9 Clearly, if Mr. Minton decides that it's
10 the route he's going to take and remember
11 this. Mr. Avila said he turned the camera
12 back up on the seventh when they rounded the
13 corner because they went to the east side
14 which made him assume they were going to be
15 picketing otherwise they would have just
16 stayed on the west side; remember that.
17 But, if Mr. Minton decided that he was
18 going to walk down the sidewalk on the west
19 side of Watterson Street to get to wherever
20 he was going with nothing in his hand, not
21 doing anything. He's just out bopping
22 around town, clearly he has a right to do
23 that.
24 Now, Mr. Minton is coming this way and
25 Mr. Shaw is coming this way. Mr. Shaw goes
. 588
1 to jail for blocking the sidewalk, right?
2 Contempt of the court, violation of the
3 injunction. Mr. Minton has the right to
4 transit. Forget the signs. Under your
5 injunction very clearly everybody's right to
6 free movement remains in tact except is for
7 what? Except for the ten foot rule.
8 Now, here come Mr. Minton and Mr. Shaw
9 coming face to face on Watterson Street.
10 Who has obligations and what are they?
11 Well, the way that you crafted this they
12 both have obligations and they have the same
13 obligation which is not to get within ten
14 feet of each other.
15 They can, Mr. Shaw can cross the street
16 and go where he's going. Mr. Shaw can go in
17 the building. Mr. Minton can turn around
18 and go back. He can go out in the street or
19 across the street, but you can't say that
20 either one of them is blocking the other
21 one's path because they both have a right to
22 walk on the street.
23 Now, if you think about this, think
24 about this, if being on what Scientology
25 says is the wrong side of Watterson Street
. 589
1 is per se blocking the street, then you
2 better have your bailiff cuff Mr. Avila now
3 because you're going to want to deal with
4 him for standing in that alley on the east
5 side of Watterson Street, just standing
6 there like a roadblock. But you know what,
7 Judge. Nobody asked you to do that to him
8 because it's not a violation of the
9 injunction.
10 If we're coming down the east side of
11 the street and there really are
12 Scientologists getting on and off the bus on
13 the west side of the street and Mr. Avila is
14 standing over here, well, you know, he's
15 going to have to cross the street to abide
16 by the ten foot rule, but just standing
17 there when we come down here if there is no
18 reason not to, if there's nothing to stop us
19 from doing it under the terms of the
20 injunction, I think we're going to have to
21 cross the street if he's already standing
22 there. Because fortunately you have left
23 this a free country.
24 THE COURT: In other words, is it a
25 charge or a block?
. 590
1 MR. MERRETT: Right.
2 THE COURT: Okay.
3 MR. MERRETT: That's the question and
4 the way it's set up, everybody has the right
5 to be there, everybody has the same
6 obligation to maintain their distance and you
7 can't say that by being in place X where even
8 under the injunction I have the right to be,
9 I am therefore blocking other people and in
10 violation of the injunction, because you know
11 what, Judge? It's that same back door
12 treatment about picketing and transit.
13 The attempt it to get you to read the
14 injunction in a way that actually prohibits
15 any of the respondents from physically being
16 on the street. Because if being on
17 Watterson Street is blocking the street and
18 makes the violation against Ms. Bezazian,
19 then any time that they are on a street
20 anywhere and a Scientologist -- I mean I
21 understand that presumably this would be a
22 better world if people had to step in gutter
23 when a Scientologists comes by. but that's
24 not what your injunction says.
25 That's what they're arguing to you and
. 591
1 they're arguing that is she in contempt
2 because that's not what she did, but that's
3 not what your injunction says.
4 She's on the street, the Scientologists.
5 Come. They got the obligation to move just
6 like she would have the obligation to move
7 of she walked around the corner and they
8 were standing there.
9 Now, interestingly on that point if you
10 recall the videotape, we'll see that Officer
11 Harbert who I was gratified to see brought
12 his temperament to court with him, followed
13 her around the corner. After he, and I'm
14 not going to argue the merits of the
15 evidence or the credibility, but after they
16 had the discussion about the Santa Claus
17 chair on Cleveland Street, Ms. Bezazian,
18 Ms. Greenway and Mr. Bunker walked around
19 the corner onto Watterson Street and if you
20 watch the videotape you see Ms. Bezazian
21 walking down the street with Harbert right
22 behind her on the west side and he starts
23 talking to her and stops her there.
24 Now, the fact that she exercised
25 prudence and stopped when Officer Harbert
. 592
1 wanted to talk to her and stayed there as
2 long as he was talking until he said, look,
3 let's go across the street, that puts her in
4 contempt of court. That's what they're
5 telling you.
6 She walked around the corner in an area
7 where she had a right to be with a policeman
8 for some ungodly reason right behind her.
9 She stopped, she talked to the policeman,
10 she crossed the street with the policeman
11 when the policeman said cross the street.
12 THE COURT: When you say crossed the
13 street, she crossed the road over to the east
14 side?
15 MR. MERRETT: Yes, sir, when he said
16 let's go over here to the other side of the
17 street.
18 THE COURT: Okay.
19 MR. MERRETT: Now, and the last sentence
20 again, which I can only assume was put there
21 strictly for inflammatory purposes, because
22 your injunction doesn't require people to be
23 polite to a policeman is, again, when Officer
24 Harbert told her she was violating the
25 injunction, she argued with him.
. 593
1 That clearly does not form a basis, even
2 if true, for a finding of contempt,
3 consequently a JOA is required with respect
4 to that allegation.
5 The next paragraph deals with December
6 12 back at the driveway of the Coachman
7 Building. At or about 2:07 PM on
8 December 12, Bezazian picketed in the
9 entrance to the parking lot behind the
10 Church's Coachman Building. She then began
11 talking to the driver of the car in the
12 driveway, thereby blocking ingress and
13 egress to the parking lot entrance to the
14 Coachman Building contrary to the
15 injunction.
16 Now, I want you to just take a quick
17 look at that part of the Coachman Building
18 and its parking lot and then remind
19 yourself, if you would, about the videotape
20 and what you saw.
21 The -- I suddenly saw myself on my death
22 bed reciting street names in downtown
23 Clearwater.
24 What they're talking about occurred
25 right here at the driveway going into the
. 594
1 parking lot behind the Coachman Building.
2 And just a couple points again. A lot of
3 the analysis of this dealt with up front.
4 If you watch the videotape they pick her
5 up as part of their general program of
6 surveillance, way back here on the other
7 side of Park Street. She and Mr. Jacobsen,
8 Mr. Jacobsen wearing a red or purple shirt,
9 if you remember. She was wearing a black
10 and white, like a Rob Roy plaid shirt.
11 They're coming across here. That's where
12 the videotape comes up or pick up. She
13 stops here, okay.
14 Actually they slow down first. She and
15 Mr. Jacobsen are walking slowly along her.
16 She stops. Mr. Jacobsen continues and I'm
17 not sure whether it's before or after the
18 car pulled in, but then you see, incredibly,
19 incredibly, Scientology with a boat of
20 lawyers and OSA staff sitting in here saying
21 that this is a violation of the injunction
22 and by God, Judge, we want you to do
23 something. Incredibly, they brought you a
24 videotape of a Scientology security guard
25 ride his bicycle within about two feet of
. 595
1 her, of the viscous and dangerous Tory
2 Bezazian into whose proximity no one must
3 come.
4 So I think you certainly have to take
5 that into account in weighing all of this.
6 That they're bring you this evidence, for
7 what, I don't know, but it's real clear that
8 this injunction is not something that they
9 actual want enforced or they would have put
10 that security guard's head on a platter and
11 brought it in here for you, but they didn't
12 do that. The security guard, who testified,
13 testified that he knowingly violated the
14 injunction because he drove on the sidewalk
15 coming within ten feet of Ms. Bezazian.
16 The car stopped. We don't know who was
17 in the car except that he's not one of the
18 Scientologists who is known to the witness
19 who testified about the event. We don't
20 know that the person was or was not a
21 Scientologist. We don't know any of that.
22 What we do know if you look at the time
23 signature on the tape is that for
24 approximately 47 seconds Ms. Bezazian
25 appears to carry on a conversation with that
. 596
1 person.
2 Now, you don't know whether the car
3 stopped before she -- actually you do know
4 because she walked towards the car after it
5 stops. We don't know what the subject of
6 the conversation was. We don't know what
7 was going on. What we do know is that she
8 walked up there, the car drove off and then
9 what, Judge? What happened?
10 THE COURT: The van came in.
11 MR. MERRETT: The van came in. Before
12 that though, the best part, while she had the
13 driveway blocked so that nobody could come or
14 go, a UPS van as big as a house drove in the
15 driveway. Now, a UPS van that we know to a
16 certainty was as big as or bigger than the
17 Scientology cant that they're saying were
18 blocked and couldn't get in.
19 Now, here's the thing. If a UPS truck
20 could get past the green car, and if you
21 notice, it's moving at a real good clip.
22 Makes me wish I was a PI lawyer, but it's
23 moving at a good clip sailing through here,
24 past the green car.
25 What they're asking you to believe,
. 597
1 though, is that the driveway was blocked so
2 that the can that was smaller couldn't
3 follow the same route. And interestingly --
4 well, actually that's closing argument and
5 I'll save that about what is and isn't on
6 these videotapes and who did or didn't clip
7 them up.
8 But, it's clear the driveway wasn't
9 blocked. It was open to transit by a UPS
10 van. Once the van passes, the green car
11 passes, the Scientology van pulls in or I
12 mean the UPS truck, the green car leaves,
13 the white van pulls in. What does
14 Ms. Bezazian do?
15 They said she was picketing in the
16 entrance so we know that what she much have
17 done was step out in the driveway and walk
18 back and forth, right. Or that she was
19 blocking the entrance so we know she must
20 have stood in the entrance, right?
21 No. What she did was she walked
22 straight on down Ft. Harrison Avenue.
23 That's what she did.
24 Now, when you hear the response to this,
25 when you hear the response, Judge, your
. 598
1 injunction says right here keep back ten
2 feet. There is that driveway. Keep back
3 ten feet, and you know what, Judge, she
4 ain't ten feet from the driveway. She's
5 right up there on the edge, leaning in that
6 window talking to that car.
7 I just want you ask her one question,
8 Judge. Can you teach her how to levitate,
9 so she can get from the corner of Park and
10 Ft. Harrison to the corner of Cleveland and
11 Ft. Harrison without passing through that
12 driveway or without walking anywhere on the
13 diagram that isn't marked in orange and you
14 can't do it. She is in transit.
15 People are clearly able to pass across
16 those areas. What they can't do is walk
17 their picket circle through the driveway, in
18 the driveway. They can't churn in the
19 driveway so the traffic can't pass.
20 Again, if you look at the injunction,
21 the last allegation that paragraph is this:
22 Following this incident, Bezazian -- oh one
23 other thing I find real interesting is that
24 the order to show cause which was drafted by
25 Scientology lawyer's predicated on
. 599
1 affidavits and a motion prepared on behalf
2 of Scientology says that she was blocking
3 ingress and egress. And just as a matter of
4 keeping the court apprised of whether or not
5 we're being real careful about what we he
6 say, Mr. Avila testified that that is only a
7 point of ingress. And, you know, this is
8 serious business, Judge. I think you ought
9 to keep that in mind when you decide what's
10 going on.
11 Following this incident, Bezazian
12 crossed Cleveland Street to the north and
13 was picketing in front of the Clearwater
14 Bank Building on the Cleveland Street side
15 contrary to the injunction.
16 This is another hour and it's another on
17 where the evidence does not support any
18 finding of a violation.
19 If you will recall the videotape, this
20 is the incident at which on that corner
21 Ms. Bezazian spoke to a red-headed female
22 police officer. They appear to carry on
23 some conversation. Mr. Jacobsen is standing
24 of a little to the officer's left, kind of
25 behind Ms. Bezazian.
. 600
1 This is the one where the officer
2 testified, I stopped her when she crossed
3 the street and said, hey, if you're walking
4 through here you need to hold your picket
5 signs down. What did she do, officer? I'm
6 sure you remember what the officer said she
7 did. She held her picket signs and walk
8 off, headed back toward the Trust.
9 There is no evidence that she was
10 picketing or in violation of the injunction
11 or doing anything other than passing in
12 transit back to the Trust.
13 With respect to Mr. Henson, he is not a
14 named party and the prior argument regarding
15 the aiding and abetting issue --
16 THE COURT: Hold on just a minute. Let
17 me get caught up with you on your argument
18 regarding Ms. Bezazian and Paragraph One,
19 parts A, B, and C. Hold on just a minute.
20 MR. MERRETT: Yes, sir.
21 (Whereupon, a pause in the proceedings took
22 place.)
23 THE COURT: Let me do this.
24 MR. MERRETT: Yes, Your Honor.
25 THE COURT: We've been going an hour and
. 601
1 ten. Let's take a ten minute break.
2 (A short recess took place after which the
3 proceedings continued.)
4 THE COURT: All right. Let's go to
5 paragraph two, Henson. I'm sorry. Wait a
6 minute. Let's get everybody round up.
7 (Whereupon, a pause in the proceedings took
8 place.)
9 Proceed.
10 MR. MERRETT: Thank you, Your Honor.
11 Turning now to page three of the amended and
12 consolidated order to show cause, paragraph
13 2A are the allegations against Keith Henson.
14 The first is a generic allegation that
15 starting before and continuing after Henson
16 was served with the injunction he picketed
17 in areas adjacent to the Church's property
18 not marked in orange on Exhibit A to the
19 injunction. That obviously is sufficiently
20 vague on two fronts as to require a judgment
21 of acquittal.
22 Number one, it applies both before and
23 after there is even an arguable suggestion
24 that he was subject to personal jurisdiction
25 of the court; that being prior to service of
. 602
1 anything.
2 This second is that it merely says -- it
3 doesn't specify any property. However, it
4 does go on then to specify that on
5 December 1 he picketed in front of the
6 Ft. Harrison Hotel for 30 to 40 minutes at
7 four or five different times.
8 Let's start right there. This is not
9 keyed into any knowledge of the injunction.
10 In other words, it does not allege, nor
11 has it been proven that he did so with
12 actual knowledge of the injunction or, and
13 again I won't replow the same ground, but I
14 would respectfully direct the court's
15 attention to my argument regarding the law
16 on agency and scope of an injunction as it
17 applied to persons who are not named parties
18 or not named in the injunction.
19 First off, we don't know whether in that
20 next sentence, that December 1 sentence
21 where it says he picketed in front of the
22 Ft. Harrison Hotel of 30 to 40 minutes at
23 four ot five different times, whether that
24 was supposed to have been before or after.
25 Secondly, because of an interesting and
. 603
1 I suspect probably deliberately misleading
2 allegation on the part of Scientology, we
3 don't know what in front of the Ft. Harrison
4 Hotel building is supposed to mean, because
5 you got another order to show cause where,
6 pursuant to whatever policy drives these
7 things, Scientology describes the east side
8 of the 200 block of Ft. Harrison, across the
9 street from the hotel, in exactly the same
10 words "in front of the Ft. Harrison Hotel",
11 so that is inherently duplicitous given the
12 source of the allegation and consequently
13 meaningless.
14 However, assuming that what they mean is
15 that he was on the Ft. Harrison side of the
16 hotel as depicted in the videotape, the
17 question is whether he was within the scope
18 of the injunction and you have no evidence
19 of that.
20 You have purported evidence, again part
21 of the OSA film chop shop, cut down this
22 time to a sheet of paper, that purports to
23 be him receiving money on November 30 under
24 some circumstances from Robert Minton.
25 We don't know what it was for. We don't
. 604
1 know if Minton owed him money. There is no
2 evidence at all regarding the nature of that
3 transaction.
4 What evidence there is makes it pretty
5 clear that what the transaction was doing
6 was yanking Antonio Avila's chain and giving
7 Mr. Shaw something to chuckle at when he
8 looked at the tape. Because, as you see,
9 Mr. Minton, Mr. Henson and the other
10 individual are laughing and calling Antonio
11 Avila's attention to what they're doing.
12 Holding up the money, telling them to come
13 get some as the money is out passed. You
14 see on tape that at least one of the guys,
15 not Mr. Henson, but the person, handed the
16 money back.
17 Now, again this is an OSA tape. And
18 Mr. Avila told you that, like every other
19 tape Scientology brought in here, it's been
20 cut down by somebody he doesn't know at the
21 time he's unaware of for reasons not
22 disclosed to him, so we don't what happened
23 after they, whether Mr. Henson returned the
24 money.
25 In any event, that's all that you have
. 605
1 is Mr. Henson picketing on December 1, not
2 specified before or after service.
3 We do have Mr. Bellavigna throwing
4 paperwork on the ground. We did have
5 Ms. Colton chasing Mr. Henson back and forth
6 across Ft. Harrison Avenue and throwing the
7 papers on the ground. We did have
8 Mr. Henson saying don't come within ten feet
9 of me, none of which establishes a
10 connection between him and any named party
11 sufficient to meet that test sufficient to
12 put him in a position any closer to the
13 ambit of the injunction than is whoever
14 sells Mr. Minton his blue shirts. That
15 person is connected to him too and he gives
16 that person money. And Scientology would
17 have you believe on that basis that the
18 injunction extends to them.
19 Essentially, the allegations as to
20 Mr. Henson are simply that he picketed in
21 areas which were not orange areas. You have
22 a complete want of evidence in this trial
23 regarding any connection to the Lisa
24 McPherson Trust, to Mr. Minton or any other
25 named defendant or named respondent.
. 606
1 The same argument applies to the
2 Coachman Building allegation.
3 Now, turning to the next set of
4 allegations in paragraph three, beginning on
5 page three.
6 THE COURT: Just a minute.
7 MR. MERRETT: Yes, sir.
8 (Whereupon, a pause in the proceedings took
9 place.)
10 THE COURT: Okay, paragraph three.
11 MR. MERRETT: Yes, sir. Tampering with
12 the spy camera. If you recall, these cameras
13 are mounted in a junction box. We have an
14 exhibit. I forget the number of it, but it's
15 the, I think folio size. It's the large
16 sheet with the photograph of the camera on
17 the side of the rat bait building and the
18 Clearwater Bank.
19 THE COURT: Number seven.
20 MR. MERRETT: Can I see that for a
21 second? Now, if you notice in this
22 photograph, Your Honor, the junction box
23 which was identified a being a regular metal
24 junction box with knock-outs around the sides
25 of it, what building is it painted to match?
. 607
1 It's painted the color of the rat bait
2 building. It's not and painted the color of
3 Scientology's building. Just something to
4 keep in mind while we about this.
5 The allegation here is that myself and
6 Mr. Minton in the area next to the northeast
7 end of the bank building, set up a ladder,
8 climbed up a ladder, twisted the camera, and
9 took photographs of the camera. That's the
10 allegations as to Mr. Minton and myself.
11 Of you will recall, Mr. Avila testified
12 first he said he didn't know if the ladder
13 was set up on the Clearwater Bank Building
14 side or in front of the Clearwater Bank
15 Building or in front of the rat bait
16 building.
17 That was the first piece of testimony,
18 and if you look at the videotape you'll see
19 that pretty much throughout it, maybe all of
20 way through it, but pretty much throughout
21 it the ladder is set up north of the north
22 wall of the Clearwater Bank Building.
23 That's the first point.
24 The second point is that it doesn't make
25 any difference where it was. This is no
. 608
1 prohibition in the court's injunction
2 against being present anywhere in Clearwater
3 with or without a ladder, unless you are
4 covered by the injunction and within ten
5 feet of a Scientologist or are covered by
6 the injunction and engaging in expressive
7 First Amendment conduct. So,
8 notwithstanding whatever Scientology's
9 phobia about it is, carrying ladders around
10 downtown Clearwater remains lawful even
11 under the injunction.
12 Wherever it was, there is no violation
13 in having placed it there.
14 Secondly, there has been and there can't
15 be any, regardless of where the camera was
16 situated at that time, as the court is
17 aware, injunctions are to be strictly
18 construed. Because the court ultimately
19 acts as a one-man legislature in declaring a
20 conduct unlawful when it issues and
21 injunction. They have to be precisely
22 construed. What is prohibited is only what
23 is said clearly is prohibited. Everything
24 else is not prohibited.
25 It's a mandatory injunction, what must
. 609
1 be done in only that which you clearly
2 stated, period.
3 In this case what they apparently are
4 alleging is some species of trespass by the
5 touching of the camera. That may well be.
6 Again, we'll get out our field code
7 books and go to town on trespass on the
8 case. Trespass Barrie Clausem, whatever is
9 the trespass du jour, but there is no
10 violation of the injunction.
11 There is no portion of this injunction
12 that prohibits touching church property.
13 There is no portion of it that prohibits
14 being near church property. There is no
15 portion of it that prohibits being on church
16 property.
17 Now, any or all of those things might be
18 unwise things to do. They might be things
19 that would not make Your Honor happy for us
20 to do, but none of those things are
21 prohibited by your injunction. And what is
22 expected, what is required is obedience on
23 the injunction. That's all.
24 If they think they've got a trespass
25 case, you know, they have not been
. 610
1 successful. They have not been bashful
2 about trying to set up the police and bring
3 these people into court on criminal charges.
4 They can go talk to Bernie McCabe.
5 It is not a violation of any portion of
6 the injunction and the test really is,
7 Judge, can you show the specific portion of
8 the injunction that was violated? Was it
9 harassment?
10 The problem is and again I won't go into
11 the law on it this time. You're probably
12 familiar with it and you can probably lay
13 your hands on it a New York minute,
14 harassment always involves, every definition
15 that you will find anywhere in statute or in
16 case law, involves what? Engaging in a
17 course of conduct -- forget whether it's a
18 course of conduct. Look at the effect.
19 It's a course of conduct that results in
20 the infliction of significant emotional
21 distress. Scientology is a corporation.
22 You can't inflict emotional distress on a
23 corporation. Legally, as a matter of law,
24 you cannot.
25 So, we know it doesn't fall under
. 611
1 harassment and I'll come in a minute to the
2 ten foot rule, but see no evidence even from
3 Mr. Avila regarding Scientologists being
4 anywhere in view within ten feet, anywhere
5 in Mr. Avila's view within ten feet and
6 certainly nowhere within view of the people
7 on the sidewalk within ten feet.
8 You don't see any picket signs. You
9 don't hear any chanting. You see no
10 expressive First Amendment conduct which
11 would fall within the ambit of the
12 injunction.
13 So, if this is supposed to be a
14 violation which is predicated on something
15 other than the clearly noncognizable
16 allegation that there was a criminal
17 trespass, because again, whatever they think
18 about whether it was or was not a crime,
19 unless it is a crime which is coincidentally
20 prohibited by your injunction, as for
21 example smacking somebody in the face would
22 be if the person were in the protective
23 class, it's not a violation of the
24 injunction to violate any other law. It's
25 not cognizable in this proceeding.
. 612
1 The only other thing that we are left
2 with is the proposition either that some
3 entrance was blocked, the sidewalk was
4 blocked or someone's passage was blocked.
5 Well, Mr. Avila testified quite clearly
6 that this was a bread delivery and that it
7 was a bread delivery that was being made
8 from a truck into the bank building, or from
9 bank building into the truck.
10 The bakery that came from, based on
11 Mr. Avila's testimony, was not a special
12 Scientology bakery staffed by
13 Scientologists. If you remember, I asked
14 him that. And, and if you remember the
15 videotape, the bread delivery was made.
16 The person operating the bread truck was
17 not from the L. Ron Hubbard Bakery, walks in
18 the door. You see him come from the truck
19 into the door with a handcart loaded down
20 with baskets of bread and then you see him
21 come back out the door and load the empty
22 baskets back into the truck get in the
23 truck.
24 You don't see anybody blocked anywhere
25 and this brings us back to the point that I
. 613
1 was making about blockage. Is not a matter
2 of Scientologists or people who are named in
3 this injunction having the right to go
4 wherever they want to and throw other people
5 off of the sidewalk. It is a bilateral
6 obligation.
7 Now, I suppose if we permanently
8 stationed someone on a sidewalk that was a
9 regular point of transit, if anybody; I,
10 Mr. Minton, anybody permanently stationed
11 himself or herself in a position that
12 prevented transit in a place regularly use,
13 that would probably be a violation, but
14 there is no primacy granted anybody to the
15 use of the sidewalk. And there is no
16 evidence by anyone having knowledge -- if
17 you remember you struck Mr. Avila's
18 incompetent testimony that there was a
19 Scientologist somewhere inside the building,
20 maybe within ten feet.
21 There is no evidence that there was any
22 Scientologists within ten feet. There was
23 nobody on that tape other than Mr. Avila's
24 voice who was identified as being a
25 Scientologist, so what they're asking you to
. 614
1 do, Judge, is premise a finding of criminal
2 contempt on the hypothesis that a
3 Scientologist might have decided to come
4 down the sidewalk. And even if you do adopt
5 a Scientologist as king of the of MEST
6 universe theory.
7 THE COURT: The what?
8 MR. MERRETT: The matter, energy, space
9 and time, the physical universe, that they
10 have the right to throw people off the
11 sidewalk, that's still not a violation unless
12 somebody shows up.
13 You can't hypothetically violate the
14 injunction, so blockage doesn't work. The
15 ten foot rule doesn't work. There is no
16 violation of the injunction.
17 Now, the most -- let's see, Where were
18 we here. Clearly, clearly, and I would
19 suggest the court could do that right now,
20 with respect to -- I'll start a the bottom
21 of page four, with respect to Frank Oliver,
22 the damning testimony elicited from
23 Mr. Avila regarding his horrifying violation
24 of your injunction is that he was standing
25 there on the sidewalk while the camera was
. 615
1 photographed. In fact I believe the quote
2 was, oh, he was there too. Standing in
3 front of the sidewalk in front of the rat
4 bait building, that's all that was testified
5 that he did.
6 Secondly, Rod Keller.
7 THE COURT: Wait a minute.
8 MR. MERRETT: Yes, sir.
9 (Whereupon, a pause in the proceedings took
10 place.)
11 THE COURT: Okay, Rod Keller.
12 MR. MERRETT: Rod Keller, same
13 testimony. Oh, he was there and I think he
14 took pictures too. So you're supposed to
15 judge him in criminal contempt because he
16 stood on the public sidewalk in front of the
17 rat bait building and took photographs.
18 THE COURT: Just a minute.
19 (Whereupon, a pause in the proceedings took
20 place.)
21 Okay.
22 MR. MERRETT: Then you have Grady Ward,
23 Jesse Prince and Heather Bennett, each of
24 whom is alleged to at some point to have
25 touched the magic ladder of contempt. And
. 616
1 that is the essence of the allegation against
2 those three people.
3 THE COURT: Now that's Grady Ward,
4 Heather Bennet and Jesse Prince?
5 MR. MERRETT: Yes, sir. However, prior
6 to touching the ladder it is alleged that
7 they joined Mr. Oliver and Mr. Keller in the
8 transgression of standing on the sidewalk in
9 front of the rat bait building while
10 Mr. Minton and I went up and down the ladder.
11 Now, remember Judge, you're sitting as a
12 criminal judge right now. This is what they
13 brought here.
14 Adjudicate Heather Bennett guilty of a
15 crime because she stood on a sidewalk and
16 then helped fold up a ladder. Adjudicate
17 Rod Keller because he stood on a sidewalk
18 and took a picture, and I suspect I'm not
19 the only one here to appreciate the irony of
20 Scientology complaining about people taking
21 pictures.
22 (Whereupon, a pause in the proceedings took
23 place.)
24 THE COURT: Next.
25 MR. MERRETT: That is everybody that's
. 617
1 named in that paragraph. The only other
2 thing I'll point out is if you watch the
3 videotape what you will see that the
4 conclusion is that after the officer that
5 Mr. Pope represented to you through the
6 pleadings order Mr. Minton and I leave the
7 area, after he came over and you hear him say
8 on the videotape, oh, okay, are you all about
9 done? Oh, is that the camera? After you
10 hear him say those things that Mr. Pope told
11 you are actually a quote to leave or
12 instructions and order to leave, with the
13 officer standing there watching he said I
14 think I'll just stand here and make sure
15 everything is okay until you all are done.
16 You see the ladder moved so the reverse angle
17 can be taken on the picture. The ladder is
18 still on the public sidewalk. Then you see
19 the ladder folded up. This is the time
20 approximately when Mr. Prince and Ms. Bennett
21 are said to have run afoul of the law.
22 That's what you need keep in mind,
23 Judge, is that they brought Officer Harbert
24 in here to explain all about the violations
25 of the injunction because of course he knows
. 618
1 and they've suggested to you absurdly that
2 cussing at Officer Harbert is contempt of
3 court, but apparently they don't respect
4 Officer Houks's judgment quite that much
5 because he stood there -- you know what they
6 did, Judge. What they did, Judge, he was
7 there talking to us, standing at the foot of
8 the ladder where Heather Bennett was
9 standing, where Frank Oliver was standing
10 and they forgot to name him. They forgot to
11 bring him in here on contempt and he was
12 standing there watching, too, Judge. And he
13 was talking to us. We don't know what he
14 thinks about Scientology, but I bet we could
15 find out.
16 The question, Judge, is what are they
17 doing with your time? None of that is a
18 violation of the injunction.
19 There is no portion of the injunction to
20 which you can apply the evidence that was
21 presented and conclude there was a
22 violation.
23 Turning to the next page, page five
24 paragraph C, that one again in addition to
25 requesting judgment of acquittal, I would
. 619
1 ask the court to reserve jurisdiction to
2 impose sanctions.
3 THE COURT: Wait a minute. Where is
4 this one?
5 MR. MERRETT: Top of page five.
6 THE COURT: Okay. That's three,
7 paragraph 3C?
8 MR. MERRETT: Yes, sir. In addition to
9 moving for judgment of acquittal because no
10 evidence was adduced, I'll ask the court
11 reserve jurisdiction to impose sanctions
12 against Scientology and/or counsel for having
13 brought that and having adduced no evidence
14 whatever in support of that.
15 THE COURT: Just a minute.
16 (Whereupon, a pause in the proceedings took
17 place.)
18 Okay.
19 MR. MERRETT: Turning, and again
20 obviously that's a twofold argument. They
21 produced no testimony, no evidence, no
22 nothing regarding that, consequently a
23 judgment of acquittal is mandatory.
24 Additionally, having brought it and done
25 nothing, we're asking the court reserve
. 620
1 regarding sanctions.
2 Moving on paragraph D relating to
3 obstruction of a process server, there are
4 only a few brief points that need to be
5 made. Again, I will cite the law to you in
6 a cursory fashion and leave it to you to
7 look up.
8 First of all, despite the protestations
9 of Ms. Colton and Mr. Kronschnabl, you won't
10 find any law authorizes people to trespass
11 in serving process. You can't go into any
12 place of business that you want to.
13 As I mentioned at one point to the court
14 earlier, you can't walk into the
15 proctologist's office and serve the patient
16 on the table. You don't have the right to
17 walk up to the communion rail and serve the
18 priest. You don't have the right to go
19 where you want, when you want without regard
20 to the people's property rights in order to
21 serve process.
22 The Florida law specifically provides in
23 Chapter 776 that any force short of deadly
24 force may be used to eject a trespasser from
25 real property, and more to the point,
. 621
1 anything that -- two points. The injunction
2 was in effect, prima facie without any
3 process server exception or exception having
4 been written into it at the time of both of
5 these events.
6 There has been no testimony established
7 that the Mr. Kronschnabl's event occurred
8 after entry and service of the order of
9 December 1.
10 The order on its face prohibits those
11 people from coming within ten feet.
12 Mr. Bussard, again we're building an
13 interesting world here with interesting
14 repercussions if people have the right to go
15 exactly where they want to to serve process.
16 Because, you know, there are people that
17 will do all kinds of things for $22. And if
18 people have an absolute right to interrupt
19 dinner, if people have an absolute right to
20 loiter in a business -- I mean this is not a
21 dime store, this is not a restaurant where
22 people are coming and going. You don't have
23 a right to be a particular place. You do
24 have a right to serve process, but you don't
25 have a right to trespass.
. 622
1 Additionally, the actions alleged in
2 paragraph D on page five and six are not
3 covered by the terms of the injunction at
4 all. And the order to show cause is
5 directed solely to a violation of the
6 injunction.
7 In short, while I am sure that every
8 process server goes to bed at night dreaming
9 that he or she has the right to go where he
10 wants to do and do as he pleases, there is
11 no law for that and there is no law that
12 says they're exempt from Chapter 810.
13 As to the order to show cause regarding
14 contempt, this is as to Minton, Lerma,
15 Enerson, Bezazian and Gogolla portion.
16 THE COURT: Okay.
17 MR. MERRETT: I'll start with probably
18 the simplest one. Well, I'll start with the
19 first one that happens to be the simplest
20 one.
21 On the first page of that order to show
22 cause, paragraph A directed at Randy
23 Enerson, it says that he intentionally
24 violated the injunction by picketing in the
25 prohibited zone in front of the Clearwater
. 623
1 Bank Building.
2 Again, Your Honor, I spoke at some
3 length about the fact that the court didn't
4 prohibit walking in Clearwater, the court
5 didn't prohibit picketing. The court
6 obviously cannot have -- cannot is probably
7 the right word, too, but it's obvious that
8 if the court intended to did prohibit
9 picketing all together, that's what you
10 would have done. Not said you can picket in
11 this place, but you can't carry picket signs
12 to get there or to get back.
13 I guess maybe you could draft an order
14 that people could go down there with blank
15 cardboard and poster paint and leave it
16 there and walk back, but that's not it says.
17 If you look at the videotape that was
18 entered on that point, what you see is there
19 is a fellow walking, holding a sign, smoking
20 a cigarette. There is a woman walking with
21 sign like this that's in front of her face.
22 There is Mr. Enerson with a sign on his
23 shoulder walking along smoking a cigarette
24 and there is another woman following along
25 behind them who stops to talk to somebody.
. 624
1 And the testimony was from the witness who
2 made the original videotape that they did
3 what? Went right around the corner and
4 right back to the LMT.
5 They didn't turn around and retrace
6 their steps in front of the Cleveland Bank
7 Building, they weren't chanting in front of
8 the Cleveland Bank Building, they weren't
9 doing anything in front of the Clearwater
10 Bank Building except walking and here's the
11 thing, Judge. You got to keep this in mind
12 when you consider anything that happened
13 around there.
14 The door that everybody comes and goes
15 through at the LMT as you've heard is on
16 Watterson Street, down the block and past
17 the Clearwater Bank Building.
18 Now, what they're complaining about in
19 this particular instance, what they want you
20 to convict Randy Enerson of a crime for is
21 for walking across here on his way to this
22 door, because this are here that I'm marking
23 with an X is not an orange zone.
24 You know what, Judge. They're asking
25 you to convict Tory Bezazian because walking
. 625
1 to and from a picket she walked here which
2 is not an orange zone. So we know already
3 because Scientology says so, that you can't
4 walk to or from a picket here and we know
5 because Scientology says so that you can't
6 walk to and from a picket here.
7 What we also know because of what
8 Scientology has told us about these other
9 places, this ain't an orange zone either and
10 you can't walk there to and from a picket in
11 front of the Coachman Building on Cleveland
12 Street.
13 You know what else, Judge. The other
14 side of Ft. Harrison is on the diagram and
15 you no know what? It ain't an orange zone
16 so Scientology says, Ben Shaw says, Wally
17 Pope says you can't walk to and from a
18 picket. That's not what Judge Penick said,
19 but that's what they're doing.
20 Convict Tory Bezazian for walking up
21 here, convict Randy Enerson for taking the
22 alternate route and, by the way, if you'll
23 just look at your map and reserve the right
24 at any time to seek conviction of anybody
25 from taking any route back to LMT if you
. 626
1 walk through areas that aren't orange zones.
2 These allegations are not that they were
3 hooting and hollering, lopping spit balls,
4 doing anything. They're walking. And you
5 heard Mr. Avila say where they went. There
6 is no evidence of violation of the
7 injunction. It's merely transit.
8 Page two, paragraph B.
9 (Whereupon, a pause in the proceedings took
10 place.)
11 I'll deal with this one very briefly
12 because I suspect Mr. Howie will do the
13 heavy lifting.
14 Quite simply the allegation is that by
15 running away from a process server and he
16 lied about what you say to her, you violate
17 the injunction. That's it.
18 The allegation is that Mr. Minton,
19 having again apparently by the use of OT
20 powers been spotted driving onto a Lisa
21 McPherson Trust street, was pursued to his
22 door and therefore should be convicted of a
23 crime.
24 That's clearly not a violation. Even if
25 you assume that it is obstruction of the
. 627
1 process server, a violation of Chapter 843,
2 even if you assume any of those things, it
3 apparently annoys Scientology because you're
4 supposed to stand still for their process
5 server and stand up at the supper table for
6 them, but it's not a violation of the
7 injunction.
8 (Whereupon, a pause in the proceedings took
9 place.)
10 THE COURT: Okay.
11 MR. MERRETT: Moving on to paragraph C,
12 I will focus on Mr. Enerson and Mr. Lerma.
13 Oddly enough -- oddly is the wrong word.
14 Predictably is what I mean, although
15 Scientology is very careful to identify which
16 areas are outside of the orange zones, they
17 don't say when picketing adjacent to the
18 Coachman Building they were picketing in an
19 orange zone on the south side of the Coachman
20 Building.
21 If you recall from the testimony and the
22 videotape, the demonstrating in the orange
23 zone, yelling in the orange zone, using
24 non-electronic megaphones in the orange
25 zone. You will recall Mr. Avila's testimony
. 628
1 that they weren't electronic. They were
2 just tubes or cones and honking of horns and
3 waving the Threep around are supposedly
4 violations of the injunction. Let's back up
5 just one second and eliminate the Threep.
6 Let's just set that aside for a minute.
7 We'll come back do it.
8 What are the orange zones designated
9 for, Judge? What did you say in your
10 injunction they are for? What did you say
11 in the order clarifying the injunction the
12 purpose of the injunction was? To allow
13 demonstration and the exercise of First
14 Amendment rights in areas adjacent to
15 certain church property. That's where they
16 were from the evidence. You know what?
17 Even loud speech is free speech.
18 As the court is well aware, I can show
19 you case law, but the leading case on it
20 came out of St. Petersburg so I assume you
21 know that unless it's fighting words or a
22 claim of physical damage which is likely to
23 cause harm to others, speech alone is never
24 a breach of the peace or disorderly conduct.
25 So them standing out there yelling in the
. 629
1 daylight in a commercial district, Judge,
2 you didn't prohibit that.
3 That's the First Amendment. The First
4 Amendment is generally, generally not waved
5 around over a china tea cup. Generally it's
6 kind of loud and kind of unpleasant if
7 you're not the person exercising those
8 rights.
9 Judge Adams who is now on the federal
10 bench, I think he just got switched to
11 Jacksonville where he is from, when he was a
12 circuit judge in Nassau County, everybody in
13 law enforcement and the judiciary which was
14 a grand total of about 25 people went out
15 fishing on a boat when I was up there and
16 told him, I said, judge, the sheriff said he
17 was going to arrest that street preacher
18 down there on Center Street in front of
19 Dino's. You know, I don't think I want
20 anything to do with it and he said you know
21 what. Go look at the First Amendment. It
22 was written for obnoxious street preachers.
23 Your Episcopal priest doesn't need it.
24 Well, you know what. That is what the
25 First Amendment is for. It's to protect
. 630
1 speech that otherwise wouldn't be protected.
2 It's to protect speech that would otherwise
3 cause people to push you down, to drive over
4 you or to come in and ask a judge to do it
5 for you.
6 The speech, the activities that you saw
7 on the south side of the Coachman Building
8 doesn't have to be nice to be within your
9 injunction; First Amendment activity and
10 consequently there was no violation.
11 The interesting -- well, we don't know
12 this, so I won't argue or go into how long
13 the Threep is or anything like that.
14 They've alleged that Mr. Minton, hanging
15 the Threep -- first off I guess that's
16 Threepe Quarem Clausem Friget, but that he
17 hung the Threep over the property line and
18 that that is a violation of the injunction.
19 Again, there is no part of the
20 injunction that prohibits that. There is no
21 part of the injunction that prohibits the
22 entry of certain property. There simply
23 isn't and if you're able to gauge from the
24 videotape and from what you see around it, I
25 believe that you'll find that the Threep is
. 631
1 about ten feet long from body of the holder
2 to the end of the pole where the injunction
3 is hanging.
4 So, the question is, is there another
5 way he could have violated it? Did he get
6 within ten feet of a Church member? Not
7 unless he skewered along the Threep and the
8 ball was intact when it comes back in the
9 frame, so we have to you assume that he
10 didn't. So, se don't have a violation
11 there.
12 Additionally, they seem to be bringing
13 it and expect to hear it argued to you.
14 They seem to be bringing again the arguments
15 that passing across the driveway is a
16 violation of the injunction.
17 In other words that this, and this is
18 just going to be a generic setup, but there
19 are several places where the court's
20 injunction looks more or less like this and
21 it will say drive and it will have an orange
22 area and an orange area and it will say keep
23 back ten feet. Okay.
24 Well, none of the people on this side of
25 the room can levitate. They can picket here
. 632
1 and they can picket here and we know because
2 dangling an orange ball and a copy of the
3 injunction infuriates the Scientologists and
4 cranks up the lawyers that we're not
5 supposed to do what? We're not supposed to
6 walk in here and get around the driveway.
7 We can't walk out in the street to get
8 around the driveway because, of course,
9 there is Scientology vans out there and we
10 know that their drivers are not capable to
11 hitting a hole less than 25 feet wide with a
12 van, so that's going to create a problem and
13 block access to their property.
14 We can't go on the other side of the
15 street because the other side of the street
16 is on the map and not an orange zone and
17 were picketing outside the orange zone.
18 The answer, Judge, is real simple. It
19 doesn't violate the injunction. The
20 injunction was not that people comport
21 themselves in a manner pleasing to
22 Mr. Miscavige and the rest of Scientology
23 hierarchy.
24 It was that the respondent not engage in
25 specified conduct. And unless the conduct
. 633
1 is on that list, nobody, regardless of what
2 their connection is to anybody else can be
3 guilty of violating the court's order.
4 Passing in transit doesn't do. It, hanging
5 a Threep over the property line doesn't do
6 it.
7 THE COURT: Just a minute. Just let me
8 catch up with myself.
9 MR. MERRETT: Yes, sir.
10 (Whereupon, a pause in the proceedings took
11 place.)
12 THE COURT: Okay.
13 MR. MERRETT: Thank you. May I proceed?
14 THE COURT: Yes, you may.
15 MR. MERRETT: Judge, going to
16 Paragraph D at the bottom of page two, again
17 if you will refer to the text of that
18 allegation of the order to show cause which
19 relates to Minton, Lerma and Enerson and
20 Gogolla demonstrating on the south side of
21 the building, some of them using megaphones,
22 that is the Coachman Building, and that they
23 moved around the Ft. Harrison side of the
24 parking lot and quote, were picketing as they
25 walked across the driveway where protesting
. 634
1 is prohibited, Minton was yelling through a
2 megaphone, and if you look again, it's this
3 situation here, exactly this situation that
4 they passed across the end of the driveway.
5 I think I've adequately made the
6 argument on that point which is again, if
7 you intended to tell people they couldn't
8 picket, you would have said that, I believe.
9 Now, another particularly egregious
10 exercise is found in paragraph E. If you
11 recall the videotape, it's egregious for the
12 basis, the first being that this is an
13 example of the deliberate duplicitous use of
14 language. This is where picketing on the
15 east side of the Ft. Harrison Avenue is
16 described as picketing in front of the
17 Ft. Harrison Hotel and just has Mr. Enerson
18 walking on the sidewalk immediately adjacent
19 to the Clearwater Bank Building is described
20 as being in front of the Clearwater Bank
21 Building.
22 As you might imagine, you see this in an
23 order to show cause with clients who
24 presumably can read, he would have a stroke.
25 What in the world does that mean? What does
. 635
1 that mean to anybody, this order to show
2 cause that the court was led into reading or
3 signing by the application of the
4 Scientology because these people were
5 picketing in front of the Ft. Harrison, for
6 God's sake.
7 Keep this in mind, because it seems to
8 be saying how we got here as well as what we
9 heard when we got here because clearly they
10 were not in front of the Ft. Harrison. They
11 were across the street again in what
12 Scientology fails to identify as a specified
13 orange zone of picketing.
14 THE COURT: You're saying that
15 Paragraph E, that's an orange zone?
16 MR. MERRETT: Yes, sir, and that ended
17 up being demonstrated by a videotape and
18 conceded at one point I think by counsel.
19 It's an appalling choice of locution.
20 The behavior that you see which they
21 called in front of the Ft. Harrison, the
22 behavior that you see in the orange zone on
23 the west side of Ft. Harrison is again and I
24 won't repeat the argument --
25 THE COURT: Hold on. On the west
. 636
1 side -- oh, the west side of Ft. Harrison?
2 MR. MERRETT: Yes, sir.
3 THE COURT: I'm sorry.
4 MR. MERRETT: It's pure speech. It's
5 waving the Threep around. It's waving signs
6 around. It's hollering.
7 THE COURT: Wait a minute. Let me get
8 this right.
9 MR. MERRETT: It's east. It's east.
10 THE COURT: Hold on. Hold on. Hold on.
11 Paragraph 1E.
12 MR. MERRETT: Yes, sir.
13 THE COURT: On page three.
14 MR. MERRETT: Yes, sir.
15 THE COURT: You're telling me that
16 Minton, Merrett, Enerson, and Lerma were on
17 the east side of Ft. Harrison in the orange
18 zone.
19 MR. MERRETT: Correct.
20 THE COURT: Okay. Let me just note
21 that.
22 (Whereupon, a pause in the proceedings took
23 place.)
24 Okay.
25 MR. MERRETT: And it may remind the
. 637
1 court, this is the segment, they're standing
2 in front of the shelter that covers the
3 sidewalk on the other side of Ft. Harrison.
4 Ms. Brooks is there with a dog who curiously
5 was not named in the order to show. It's
6 Maggie, but they left her out.
7 THE COURT: Wait. You say who wasn't
8 named?
9 MR. MERRETT: The dog.
10 MR. POPE: Excuse me. That's just an
11 example of cuteness that we didn't name a
12 dog. You know, that's the kind of sarcasm
13 that we've come to know and love in this
14 case.
15 THE COURT: Okay.
16 MR. MERRETT: In any event, that's the
17 scene.
18 THE COURT: Okay. Please press on.
19 MR. MERRETT: Although you obviously
20 weren't notified by the application that was
21 made on behalf of Scientology or by the order
22 to show cause that the attorneys presented to
23 you, this was in the zone these people were
24 authorized to be in and, again, as I
25 mentioned before in connection with picketing
. 638
1 on the south side of the Coachman Building,
2 it is pure, protected speech. It is First
3 Amendment exercises in an area that the court
4 has designated for that activity.
5 Again, this is daytime. The court never
6 prohibited use of megaphones. These are not
7 bullhorns, these are not amplifying devices.
8 These are cones. I think you held one in
9 your hand marked Xenu.net, so you know what
10 they are.
11 THE COURT: Okay. Hold on just a
12 minute.
13 (Whereupon, a pause in the proceedings took
14 place.)
15 We've been going for about an hour.
16 Let's take ten minutes.
17 (A short recess took place after which the
18 proceedings continued.).
19 THE COURT: Okay, sir, paragraph F, page
20 three.
21 MR. MERRETT: Yes, Your Honor. In that
22 the allegation is that Mr. Minton, Mr. Lerma,
23 Mr. Enerson and myself and several other
24 persons and presumably, although you wouldn't
25 necessarily know from Mr. Bellavigna's
. 639
1 account of his instructions regarding service
2 of the injunction, presumably that is not
3 several other people who were ambling towards
4 Jimmy Hall's for supper. The allegation is
5 that those people walked north in the street
6 adjacent to the Clearwater Bank Building.
7 If you look at the videotape you see
8 that they began walking, essentially
9 jaywalking, across the street onto the east
10 side of Watterson Street sidewalk and down
11 the sidewalk. Again, you have the
12 misleading use of language.
13 The sidewalk which is across the street
14 from the Clearwater Bank Building is not
15 adjacent to the Clearwater Bank Building,
16 however they appear to be drawing a
17 distinction between that which is merely
18 adjacent and that which is immediately
19 adjacent, which I guess is the intermediate
20 stage.
21 If the sidewalk across the street is
22 adjacent, then if there is a sidewalk in the
23 middle, maybe it's immediately adjacent and
24 the sidewalk actually touches the building
25 probably like really way up close adjacent,
. 640
1 but in any event, this was presented to you
2 again with a misleading representation that
3 you saw from the videotape as far as where
4 these people were.
5 The next sentence which talks about
6 which they were doing supposedly, and again
7 I think we're still on the adjacent, meaning
8 50 feet away across the street adjacent.
9 That's certainly what the tape showed,
10 stopped and yelled, which is protected First
11 Amendment activity within an orange zone to
12 limited on the east side of Watterson Street
13 for that purpose.
14 You then saw on the videotape,
15 Mr. Minton, followed a little distance by
16 myself, crossing the street, walking with
17 the Threep vertical with the injunction on
18 it down the street.
19 What you didn't see was any
20 Scientologist. What you didn't see was
21 anybody. And I believe, although I'm not
22 certain. I'm sure somebody can look up and
23 tell me what day of the week January 6 was,
24 probably a Saturday or a Sunday, but that's
25 a matter of which the court can take
. 641
1 judicial notice and as the court observed
2 yesterday, of course, this is a church and
3 Sunday is a day of limited activity in the
4 evening and that's the extent of that.
5 THE COURT: Okay. Let me catch up with
6 you.
7 MR. MERRETT: Sure.
8 (Whereupon, a pause in the proceedings took
9 place.)
10 THE COURT: Proceed.
11 MR. MERRETT: Thank you, Your Honor.
12 Obviously with respect to that Paragraph F,
13 the only way that you can find a violation
14 would be because there is no violation of the
15 ten foot rule, there is no Scientologists
16 shown to be blocked, there is nobody
17 inhibited from entering or exiting, there is
18 no Scientologist being harassed or subjected
19 to violation. The only way you could find a
20 violation is if you find that the display of
21 the Threep and the attached injunction --
22 THE COURT: The what?
23 MR. MERRETT: The only way you could
24 find a violation is if you find that the
25 display of the Threep with the attached
. 642
1 injunction in Mr. Minton's hand as he walked
2 through the door of the Trust --
3 THE COURT: Mr. Merrett --
4 MR. MERRETT: -- is First Amendment
5 activity.
6 THE COURT: Mr. Merrett, you're an
7 eloquent speaker, but you're a lousy tap
8 dancer. Put the Threep on the record now.
9 MR. MERRETT: I'm not sure I understand.
10 THE COURT: You keep waltzing about the
11 Three P Pole and you say there will be stuff
12 later. Go ahead and put it in the record now
13 so that that appellate court will have it.
14 MR. MERRETT: I will. I have no
15 objection to it.
16 THE COURT: I'm asking you to do it,
17 please.
18 MR. MERRETT: It's a ten foot fishing
19 pole.
20 THE COURT: I know what it is. I can
21 read the St. Petersburg Times. Now, can you
22 please put it on the record?
23 MR. MERRETT: I'm not sure how you want
24 me to put it on the record?
25 THE COURT: However you want to, but --
. 643
1 MR. MERRETT: You just want me to
2 describe it for the record?
3 MR. POPE: Your Honor, I'll be happy to
4 stipulate it into evidence.
5 THE COURT: Would you do that?
6 MR. POPE: Right now. Right now we'll
7 stipulate it into evidence.
8 MR. MERRETT: All right. We don't want
9 to lose it, Judge.
10 THE COURT: Well, it's in evidence now.
11 MR. MERRETT: It hasn't been offered
12 into evidence, Judge.
13 THE COURT: Well, did you really think
14 you were going to get out of here with that?
15 MR. MERRETT: I figured --
16 THE COURT: That was going into evidence
17 one way or the other.
18 MR. MERRETT: Actually, their case is
19 closed, Judge. I was going to use it as a
20 demonstrative exhibit. You've got pictures
21 of it.
22 THE COURT: I would hate to see that get
23 lost for posterity. No comments needed.
24 MR. MERRETT: No, I'm not trying to
25 comment. I'm trying to think of how to
. 644
1 proceed, which is --
2 THE COURT: We'll worry about that
3 tomorrow. I just want the record -- you're
4 talking about the Threep or something. I
5 don't quite understand what you're saying.
6 MR. MERRETT: I understand. Your Honor.
7 It's Threep. The word is spelled
8 T-H-R-E-E-P.
9 THE COURT: Right.
10 MR. MERRETT: It is a collapsible
11 fiberglass fishing pole whose end is guarded
12 by an orange Nerf ball approximately four
13 inches in diameter. And spaced down the
14 shaft of the Threep at intervals are stripes,
15 horizontal stripes of pink fluorescent tape.
16 Exactly ten feet from the distal end of the
17 orange Nerf ball is situated a flashing red
18 strobe light and affixed immediately adjacent
19 to the flashing red strobe light is a Bombay
20 taxi horn.
21 THE COURT: A what?
22 MR. MERRETT: A Bombay taxi horn. An
23 ah-wu-gah (sic) horn. A horn with a black
24 rubber bulb for powering the horn.
25 Immediately in front of the horn and
. 645
1 immediately behind the horn are sections of
2 flourescent orange pool noodle and fastened
3 to the distal end of the pole immediately
4 behind the orange Nerf ball is copy of the
5 text portion of Temporary Injunction Number
6 Two.
7 THE COURT: Okay. And what is the
8 exact --
9 MR. MERRETT: Threep is, the derivation
10 of Threep is either depending on who you ask,
11 the Penick Peace-Keeping Pole or the Penick
12 Picket Pole.
13 THE COURT: Okay.
14 MR. MERRETT: And the Threep is a
15 pronunciation of the statement of Three P.
16 THE COURT: Okay. Mr. Pope?
17 MR. POPE: Your Honor, you have
18 requested that the pole be presented to the
19 court. I think --
20 THE COURT: I don't know about presented
21 to me, but I mean at least every case has its
22 own unique character and some day somehow
23 there is going to be a court museum I have a
24 feeling, in this circuit anyway, and I just
25 hate to see that get lost. That's
. 646
1 a -- there's some genuine ingenuity there.
2 MR. MERRETT: I understand, Your Honor.
3 MR. POPE: Again, we have absolutely no
4 objection to the pole coming here so that we
5 can all look at it, coming into evidence and
6 you having access to it, Your Honor.
7 MR. MERRETT: Your Honor, kind of
8 stepping aside, I now have the Threep in my
9 hand and as you can see it is remotely
10 deployable and you can see --
11 (Whereupon, Mr. Merrett sounded the horn.)
12 THE COURT: I hope somebody has patented
13 that, because just think of all the pickets
14 around and everything else. I mean the
15 wealth of cases where you have to worry about
16 the footage, somebody could get rich off
17 that.
18 MR. MERRETT: Your Honor, I know the
19 designer and I think that he would be willing
20 to donate it to the court in the public
21 trust. You could make it, actually make it a
22 mandatory --
23 THE COURT: Now, when you say public
24 trust, that scares me, but --
25 MR. MERRETT: Actually, you can make it
. 647
1 a part of future injunctions that each person
2 subject to the injunction equip himself with
3 a pole of suitable length and suitably fessed
4 in with horning devices. It's an idea. In
5 any event, however, this, without prejudice
6 to the procedural status of the case I would
7 at this time move it into evidence.
8 THE COURT: Okay. We'll make this your
9 number two and you know there is a rule about
10 substituting copies so maybe -- but anyway
11 we'll put this in and mark it into evidence
12 as Defendant LMT's Number Two Exhibit.
13 All right. That is when you talk about
14 the Threep?
15 MR. MERRETT: Threep, yes, sir.
16 THE COURT: Very good. Okay. Go ahead.
17 MR. MERRETT: Unless the court finds
18 that walking with the extended Threep
19 vertical down the west side of Watterson
20 Street, displaying the injunction and the
21 Threep and in connection with what Mr. Minton
22 was saying, unless you find that that is
23 First Amendment activity there is not a prima
24 facie case for a violation of the injunction.
25 In other words, at least a violation
. 648
1 which could conceivably be constituted by
2 that behavior can't fall in any of these
3 other categories. It has to be the latter
4 one.
5 (Whereupon, a pause in the proceedings took
6 place.)
7 THE COURT: All right. Let's go on now
8 to Paragraph G.
9 MR. MERRETT: Yes, sir. The shortest
10 point to be made with respect to Paragraph G
11 is that this is once again a section in which
12 the affidavits and the motion and the
13 proposed orders to show cause were submitted
14 to the court without favoring the court with
15 the obvious fact as shown by the evidence and
16 obviously is known to Scientology when all of
17 this was submitted that these activities took
18 place in a designated orange zone for the
19 exercise the First Amendment rights.
20 Pierce Street north of the Ft. Harrison
21 Hotel, as you've seen, as we've talked
22 about, as Mr. Avila marked with his where Xs
23 for the picketers, is an orange zone where
24 picketing is permitted, and again, Your
25 Honor, I think it's the Saunders case -- as
. 649
1 I say, we can look at the law later. I can
2 give it to you to take home or however you
3 want to do that, but I'm sure that the court
4 is aware that except for those two rare
5 exceptions, speech alone is never a breach
6 of the peace or disorderly conduct and it
7 clearly does not violate the court's
8 injunction.
9 The interesting thing is that the
10 violation that you saw was a violation and
11 unless you have interdelineated somewhere
12 here in invisible ink a secret Scientologist
13 exception is Mr. Avila coming into the
14 orange zone by his own admission in order to
15 videotape these people, that's an
16 interesting proposition.
17 But the bottom line is that what these
18 people are engaged in is speech within an
19 orange zone. Mr. Avila was very careful to
20 testify and in it was represented to you by
21 more than one person that these people put
22 their megaphones on the fence, on the fence,
23 which is probably almost as bad as putting
24 your behind on Santa's chair, but it was
25 represented in the testimony that the
. 650
1 megaphones were put on the fence but then
2 take a look a the videotape. They didn't.
3 Even if they had, it doesn't establish a
4 violation of the injunction.
5 What you have is people engaging in
6 perhaps raucous. perhaps annoying speech,
7 but they're engaging in pure speech in an
8 area designated by the court for that
9 purpose.
10 (Whereupon, a pause in the proceedings took
11 place.)
12 THE COURT: Okay.
13 MR. MERRETT: The last paragraph and the
14 last part of the order to show cause to be
15 addressed is Paragraph H. I'll make this
16 brief. Again, I suspect Mr. Howie to do much
17 of the heavy lifting because principally or
18 actually it appears to be solely directed to
19 Mr. Minton and I just want to touch on a
20 couple of points.
21 This is another example of an attempt
22 purely to enflame the court. You know, all
23 presumed to be a matter of law and not to be
24 subject to being enflamed and once in a
25 while, like today, you get lucky and you end
. 651
1 up in a court that really can't be enflamed,
2 but if you read that Paragraph H, that's all
3 that can be for.
4 They're asking you, Mr. Pope, Mr. Shaw
5 and Mr. Hertzberg, Scientology is asking you
6 to hold Mr. Minton in contempt for yelling
7 at the police.
8 You did not hear one word of evidence
9 that there was any Scientologist within ten
10 feet of them. You heard that Mr. Avila got
11 out of way -- oh, blockage.
12 THE COURT: Do what?
13 MR. MERRETT: Blockage. Mr. Avila
14 testified he was standing in the orange zone
15 hypothetically blocking, like people were
16 hypothetically blocking on December 4 by
17 being by the camera. What is that? But back
18 to this subject. They're asking you to hold
19 Mr. Minton in contempt and convict him of a
20 crime for hollering at the police.
21 Well, you know, it's not necessarily
22 smart to holler at the police. It's not
23 something the police like, but we don't live
24 in Saudi Arabia. We don't live Romania. We
25 don't live in Russia. You can talk to the
. 652
1 police pretty much however you want to,
2 legally.
3 Now, there are terms of art like street
4 justice and power of the pen and things like
5 that that may come into play someplace other
6 than your court and if a police officer
7 feels threatened, Mr. Minton hits a police
8 officer, criminal courts are there to deal
9 with that. But yelling at the police,
10 however unpleasant the court might find that
11 behavior, is not a violation of the
12 injunction.
13 This is not an injunction which the
14 court entered in order to protect the tender
15 sensibilities of veteran police officers.
16 No Scientologist within ten feet.
17 Standing in the street is not a violation of
18 the injunction. Why? Because you heard on
19 the videotape very clearly that the reason
20 that he was in the street is because the
21 police were on the sidewalk and he
22 considered the police who, speaking of tap
23 dancing, were doing an interesting job of
24 that when Officer Harbert admitted, well,
25 yeah the money comes from Scientology. The
. 653
1 instructions about where to stand and what
2 to do come from Scientology. They have to
3 stay by Scientology property. They're
4 watching out for Scientology's interest and
5 whether or not they're of Scientology, but,
6 but, but, but, but we're not working for
7 Scientology which is interesting to say the
8 least.
9 Anyway, Mr. Minton, you could hear and
10 see on the videotape stepped out into the
11 street telling him to stay ten feet away
12 from him he believed him to be agents of
13 Scientology.
14 The street is not an area where he is
15 prohibited by the injunction from walking.
16 If it's against the law to walk in the
17 street, they missed a big change to make him
18 a traffic criminal like Mr. Oliver writing
19 him a citation for walking in the street.
20 But that's not something that violates the
21 injunction.
22 There isn't -- I mean let's look again
23 at what you prohibited. He didn't get
24 within ten feet of a Scientologist, he
25 didn't lock the path of a Scientologist.
. 654
1 You heard lots of innuendo about that's the
2 area where the buses load and unload, but
3 nobody could tell you whether or not there
4 was anybody there.
5 Nobody told you that -- people said, I
6 think Officer Harbert had his -- switched
7 from his tap to his ballet shoes and said
8 several different ways, well, there were
9 people in the area. Yeah, there were people
10 in the area. There were people in the
11 Walgreens two blocks away. Was there
12 anybody getting on and off the bus? I don't
13 know.
14 Mr. Avila said I don't know whether
15 there was anybody getting on or off the bus.
16 There was, you watched the videotape, no
17 vehicular traffic on the street. There is
18 no evidence that anybody was blocked or that
19 anybody was inhibited, that anybody was
20 harassed. Certainly not any member of
21 Scientology and the only reason he was in
22 the street was out of the what is
23 established by the evidence Scientology has
24 adduced to be perceived necessity to stay
25 away from these police officers who are
. 655
1 working as Scientology security guards.
2 Again, what they're attempted to do in
3 this instance is to agitate the court by
4 putting into evidence him cussing at the
5 police. There are lots and lots of nodded
6 heads and breach of the peace convictions
7 and screen tests and dogs running in front
8 of cars and you name it that are a result of
9 people screaming at the police, but a
10 violation of this injunction is not one of
11 the things that can be affected by screaming
12 at Larry Harbert or Steve Correa.
13 (Whereupon, a pause in the proceedings took
14 place.)
15 THE COURT: Okay.
16 MR. MERRETT: Your Honor, I am winding
17 up toward the alter call. I know you'll be
18 glad to hear that. The last principle issue,
19 there are two principle issues that I want to
20 touch on.
21 First is this. There has been a
22 complete lack of evidence of the connection
23 other than a physical connection which seems
24 to have been focussed certainly on
25 Mr. Minton on January 5 entering the
. 656
1 premises.
2 You heard about other people walking
3 toward or walking away from the Lisa
4 McPherson Trust, but there has been no
5 evidence of any connection of any of these
6 people to the Lisa McPherson Trust and no
7 evidence of any activity by or on behalf of
8 or at the instance of the Lisa McPherson
9 Trust which is named as a respondent in
10 these orders show cause. And as to that,
11 again there is a complete lack of evidence.
12 You have evidence regarding various acts
13 by individuals, but again, you have no
14 evidence of any legal connection of those
15 individuals to the Lisa McPherson Trust and
16 nor do you have any evidence of anyone
17 taking any action on behalf of the, at the
18 instance of the Lisa McPherson Trust.
19 You do see Ms. Brooks, the President and
20 corporate representative walking with
21 nothing in her hand but a dog leash in a
22 couple of the frames and that's it. She, of
23 course, is not named.
24 (Whereupon, a pause in the proceedings took
25 place.)
. 657
1 THE COURT: Okay.
2 MR. MERRETT: Now, an element that
3 Mr. Pope brought up and I won't belabor it
4 because that he and I were looking at the
5 same case law and are in agreement with
6 respect to what the law is as far as the over
7 arching definition of the offense of indirect
8 criminal contempt.
9 With respect to the elements of that, it
10 must be an act or omission which is willful,
11 which is intentional, which is calculated to
12 hinder or embarrass the court in the
13 administrations of justice or to obstruct
14 its orderly progress, and what it breaks
15 down to, in simpler terms, is as far as the
16 mens rea aspect, is the element of intent.
17 An intent to violate, an intent to obstruct,
18 an intent to affront the court.
19 Often times when people ask me what
20 exactly indirect criminal contempt is I
21 think the shortest explanation of it is that
22 is by one means or another, making one or
23 another totally unacceptable hand gesture at
24 the judge. It can involve your thumb or one
25 of your other digits, but that's essentially
. 658
1 what the gravamen of the offense is. If you
2 are acting willfully and intentionally to
3 affront the authority of the court or to
4 thwart the administration of justice.
5 On the issue of intent, number one,
6 there is not only an absence of evidence of
7 an intent to violate. I mean each of these
8 violations that they're talking about are
9 things like aha, they're walking back toward
10 the Trust. They're out of an orange area.
11 They still have the sign. Get em, get em,
12 get em. That's the vast majority of these
13 things.
14 Look, yeah, well, they're in an orange
15 zone but they're talking loud. Maybe that
16 will do it. These are the kind of
17 violations that we're talking about.
18 But the more compelling point is the
19 affirmative evidence that Scientology put on
20 of these peoples' deliberate, willful intent
21 to obey they order.
22 The redheaded female police officer. I
23 have her name written down but I'm not even
24 going to try to pronounce it. She told you
25 that she talked to Ms. Bezazian about, you
. 659
1 know, you're walking down the street here.
2 If you're not picketing you need to put your
3 signs down and you can go ahead and walk.
4 What did Ms. Bezazian do? She put her signs
5 down.
6 Every time that you have seen somebody,
7 even on the night of the seventh,
8 Mr. Minton, every time that you have seen
9 somebody instructed by the police to do
10 something, they've done it.
11 Mr. Minton, after if you count it off,
12 it's ten seconds, the police say get up on
13 the sidewalk, he got up on the sidewalk.
14 Now, what good that did, I don't know,
15 because they followed him up there and stood
16 right on top of him again, because
17 apparently the gravamen of the offense then
18 shifted from standing in the sidewalk or
19 standing in the street to standing on the
20 sidewalk. But, he did what they asked him
21 to.
22 He then turned and walked away and they
23 followed him again, but when they say get on
24 the sidewalk ten seconds later, he got on
25 the sidewalk. And every time that you see
. 660
1 it with respect to, and the female police
2 officer is the one that springs to mind,
3 everybody is immediately obedient to these
4 instructions.
5 That's it. You've got people picketing
6 and walking back and forth picketing and
7 Scientology is trying to bootstrap this into
8 a blanket prohibition of picketing and you
9 do not have a prima facie case for violation
10 of the injunction.
11 The next to the last point is this to
12 reiterate for the court of the
13 identification question. Again this is a
14 criminal proceeding.
15 All that you have established is
16 similarity or even identity of name which is
17 manifestly insufficient as a matter of law
18 to support a conviction for a criminal
19 offense.
20 If I say Bob Minton hit me, okay.
21 That's my testimony. Bob Minton hit me and
22 then I show you a videotape and I say, yeah,
23 that's a videotape of Bob Minton hitting me,
24 that is the state of the record with respect
25 to all these purported offenses.
. 661
1 There is no evidence at all that the
2 people who are present in court in response
3 to the charges issued at the instance of
4 Scientology are the people who performed the
5 offenses. They are not tied to the images
6 except by name. They are not tied to the
7 testimony except by name.
8 If the court will recall, every criminal
9 trial that you've ever sat through where you
10 didn't issue a JOA at the instant of the
11 defense attorney, at some point somebody
12 said tell us where he is and what he's
13 wearing and they did it and then what did
14 you say, Judge? May the record reflect he
15 has identified the defendant.
16 There's a reason we do that. It's
17 because you have to identify the defendant.
18 And other than poor lonesome me, they didn't
19 do that and you know what, Judge? That just
20 doesn't cut it.
21 It's not minor here. It doesn't matter
22 in a civil case, but this is criminal case
23 that Scientology brought and they just
24 didn't do it.
25 Now, Judge, some years ago somebody said
. 662
1 in connection with some of the parties here
2 said that some day somebody will say all
3 this is illegal. When that happens make
4 sure it's Orgs that say what's legal and
5 what's not. That was L. Ron Hubbard who
6 said that.
7 We're not yet to the point where
8 Scientology says what's legal and what's
9 not. We're at the point today where
10 Scientology is proclaiming what they want to
11 be unlawful.
12 The fact is the law in this case is what
13 you have handed down and there is not a
14 prima facie case for violation.
15 I appreciate your attention and I
16 apologize for taking so much of your time.
17 THE COURT: Okay. I thank you very
18 much. Ladies and gentlemen, this is a good
19 point for us to break for today. We'll pick
20 it up a nine o'clock again tomorrow morning.
21 I don't think there is quite the urge to
22 get here early for parking spaces. The
23 juries have been selected and those that
24 were not selected have gone home and so
25 we're kind of back to business as usual, so
. 663
1 plan accordingly other than that. Nine
2 o'clock tomorrow morning, here.
3 (Thereupon, the trial was adjourned to
4 reconvene at 9:00 AM on February 13, 2001.)
5
6 End of Volume V
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