"The law is the true embodiment of
everything that's excellent. It has
no kind of fault or flaw, and I, my
Lords, embody the Law."
- Gilbert and Sullivan: Iolanthe
10. The Barnum and Bailiff Circus
IN Washington, the first grand jury investigating the Scientologist anti-Government caper reacher the end of its term before nailing down the charges. A second panel finally concluded its deliberations on March 28, 1978 by returning a 28-count indictment against eleven church members, including Mary Sue Hubbard, wife of the founder.
Absent from the list was Michael Meisner, who had played a principal role in the alleged crimes. That, of course, was because he had become the Emperor's nightingale, whose thrilling arpeggios and cadenzas had been responsible for the proceedings which culminated in the True Bill. His offi-
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cial custodians had wound him up to a fine pitch. Before he had ended his recital, he had involved 44 of his coreligionists in the concert. Thirty-three of them were named as unindicted co-conspirators.
Two of the accused - Jane Kember, head of the Guardian Office Worldwide; and Morris Budlong, Deputy Guardian for Information -were residents of Great Britain.
On the same day that the indictments were returned, a federal magistrate in Los Angeles issued a bench warrant for the arrest of those indictees who were in the U. S. At the same time, the State Department requested Her Majesty's government in Britain to institute extradition proceedings against the two Scientologists living there.
Among the first of a long series of pre-trial motions, defense attorneys asked the court to dismiss the indictment on various grounds. These included the argument that the charges had been brought in bad faith by the U.S. Government, and that there had been prejudicial pre-indictment publicity, as well as misconduct by the prosecution.
U.S. District Judge Charles R. Richey, who was assigned to hear the case, when Judge George L. Hart, Jr. disqualified himself, denied the motion for dismissal. He did, however, grant the defendants' request that "insinuations of unalleged facts, irrelevant descriptive recitals, inflammatory language, and narrative declarations of past fact" be stricken from the indictment.
In the indictment as it was written, the Government's long-standing animus against the Church of Scientology stood out like Las Vegas on a dark night. The prosecution had sought to enlarge the charges by cunningly inserting throughout the citation innuendoes which suggested additional, unnamed offenses on the part of the accused. This was accomplished by the use of such qualifying phrases as " among other things," "including, but not limited to," and "at least."
The indictment also contained references to the encounter between FBI agents and the two Scientologists in the U.S.
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courthouse, as well as a "litany of offenses the grand jury had been investigating, but formed no part of the charges." Additionally, the true bill included the guilty plea and sentencing of Gerald Wolfe for wrongful use of a Government seal - a separate case, which the Government lawyers knew full well, had no place in the indictment. Their obvious intention was to improperly influence a jury.
In a further attempt to poison the minds of a future trial jury, the Justice Department advocates had composed their bill of allegations in deliberately inflammatory language, which the court found to be "prejudicial and unnecessarily loaded." It included such misleading and legally inexact words as "cover-up," "bogus," "operatives." and "infiltrate."
The wile was characteristic of the Government's sly, underhanded dealings with the church throughout its 20-odd years of controversy with the sect.
As a result of the indictment, the church's appeal from Judge Lucas' judgment denying its application for return of its seized property, was dismissed. The appeals court held that it did not have jurisdiction because while action on the appeal was pending, the grand jury had indicted eleven individuals, not the church. At the same time, the judges conceded that their decision "is not free from doubt," and added: "There must, at some time, be a remedy available to the Church for return of its property, if it has been unlawfully taken."
Church attorneys promptly filed another motion requesting a rehearing of the case en banc (that is, before the full court). The petition pointed out that the panel had erroneously accepted the Government's unsupported assertion, which the appellant flatly denied, that the church had sought supression of the seized evidence for the purpose of preventing their use to obtain indictments against either the church or its officials or employees.
"On the contrary, the church sought the return of its own property on constitutional grounds, expressly asserting its
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property interest and describing the documents as valuable, privileged, and protected by the First Amendment."
The church lawyers were flailing the judicial wind again.
The nine defendants who were in the United States and who were to go on trial for the offenses alleged in the indictment of August 15, 1978, filed a motion to suppress as evidence all the items seized by the FBI in their California raids on July 8, 1977.
The defense counsel offered six grounds to support their motion:
- The warrants purporting to authorize the searches and seizures were unconstitutional on their face because they were not supported by probable cause; were based on stale information; and did not particularly describe the place to be searched and the items to be seized, therefore were general warrants.
- The searches were illegal because the affidavits which were necessary to support the validity of the warrants were not attached to the warrants at the time the were executed.
- The FBI agents conducted a general, exploratory search, in violation of the First and Fourth Amendments.
- The agents seized a vast number of documents beyond the scope of the warrant.
- The agents used excessive force in their searches in violation of the U.S. Criminal Code, Section 3109, Title 18.
- The warrants were obtained and executed by the Government in a manner that violated the defendants' Fifth Amendment rights.
The suppression motion was originally scheduled to be heard in Washington, D.C.; but Judge Richey decided to hold the hearings in Los Angeles to save the cost of having a large number of witnesses, including FBI agents, fly across the country to testify.
After some arguments among the lawyers as to whether a
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judge from the District of Columbia had the legal right to preside outside his own jurisdiction to take evidence, it as agreed that Judge Richey could sit as a special master in Los Angeles. It was a technical point that had little significance so far as the proceedings were concerned.
From the outset, Judge Richey stressed the importance of speeding up the case. He took the unusual step of ordering court sessions to be held on the Fourth of July, late into evenings, and on week-ends.
At the same time, he allowed various kinds of digressions and delays. Indeed, he contributed to them. The macaronic character of the proceedings can be clearly seen from reading the transcripts of the hearings. There were false compliments, bon mots, and irrelevant comments from the bench. There were interruptions of testimony, with trifling interpolations. There were ass-kicking contests between opposing counsel; there were endless jack-in-the-box interruptions by Government attorneys, who objected to everything except the way the defense advocates parted their hair. (When the defense team did an analysis of the transcript later, they found that between 40 and 50 percent of the time in court had been spent arguing objections made by the Assistant United States Attorneys. These were procedural objections that were not substantive to the hearing. Thus, much of the limited time which defense counsel had to examine FBI agents on the witness stand was consumed in arguing objections. During one session, the Government attorney made 20-odd objections in the span of a 30-minute examination. Still, Judge Richey did not make any serious attempt to curb the AUSA's enthusiasm for legal nit-picking.)
"In my experience," an exasperated defense attorney told the court, "they [the objections] are utterly unique in a non-jury hearing."
Judge Richey's unstable temperament manifested itself in the most astonishing antics. Item: During the course of a legal argument by defense counsel, the judge got down from the bench and lay on the floor. His Honor was really not all
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that tired; rather, he was histrionically reacting to the argument being unfolded by the attorney. The sight of a federal judge in his robes, stretched out on the floor with his toes turned up during a public hearing, added much to the burlesque air which pervaded the courtroom during all of the Los Angeles sessions.
In another merry-andrew sideshow, Judge Richey jestingly ordered defense lawyer Philip Hirschkop to replenish his supply of mints, implying that the attorney's conferences in chambers had been so trying that they had caused the judge to exhaust the supply he kept on hand. After the initial jocular instruction, Richey at various times held up an empty container which had formerly held the mints, pointing at it and winking at Hirschkop. Finally, the latter bought the judge a new container of mints to get relief from his banter.
On yet another occasion, Judge Richey left the bench to argue with two defense lawyers about an identification point which an FBI agent had circled on the blackboard. Ignoring the canons of judicial ethics, the judge flew to the blackboard, making whirligig motions with his hands as he went. (Later, one of the defense attorneys filed a memorandum regarding the court's thus intervening in the examination of a witness.)
At other times, Richey interrupted counsels' questioning of witnesses to boast of his own superior legal acumen: "Do you want me to articulate it for you? I bet I could do it five times better than you could do it." And: "Do you want me to ask it? Do you want me to show you how to do it?" And: "Do you want me to answer for him?" (In response to the latter question, Attorney Hirschkop told the court: "No, sir. I will live with his answer, Your Honor.")
Another unusual feature of the proceedings was the extraordinary security surrounding the courtroom. When the defendants and their attorneys arrived in court in Los Angeles, they found that a table manned by federal marshals had been set up in the hallway outside the courtroom. A sign had been posted, announcing searches of all those entering
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the courtroom. A metal detector had also been set up to screen people for weapons.
That was not all. Numerous deputy marshals had been stationed inside the courtroom itself. At least two marshals accompanied Judge Richey wherever he went. Even more surprising was the fact that another marshal, armed with an automatic rifle, was posted atop the courthouse.
A transcript of the hearings of July 3, 1979, reveals that defense counsel asked Judge Richey the meaning of this highly unusual display of security precautions, especially in view of the fact that there had not been the slightest suggestion of threats or violence in the case before the court.
The judge answered:
"I will merely say this. That this court, along with, as you know, some of the other judges of my court, has been under special security - maybe you don't know it - under special security that is unrelated to this case. That is why some marshals are with me now, and have been for a considerable period of time.
"And I don't want that, in the interest of justice, broadcast out of this room, because it is something that is not pleasant.
"It is unrelated to this case."
Later events and a thorough investigation however, convinced defense counsel that - contrary to Judge Richey's statement - the unwonted courtroom security precautions attending the Los Angeles hearings were, indeed, directly and solely related to the fact that the case being heard was a "Scientology" case.
Furthermore, evidence produced by a subsequent enquiry suggested that the security measures were not, as judge Richey had said, in effect prior to or following his Los Angeles trip. The latter related only to the Scientologist hearings. judge Richey had not previously been under the protection of U.S. marshals "for a considerable period of time. "
The logical conclusion, supported by later investigation, was that the judge had received threats against his life,
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which he believed came from the Scientologists.
But had the Scientologists threatened him? Or had their enemies, taking advantage of the church members' public protests, faked the threats to prejudice the court against them?
Other developments which marred the Los Angeles hearings added to the defense team's growing suspicions that a Cointelpro-type operation was under way behind the scenes.
For example, on the morning of July 19th, a number of crudely-made posters proclaiming that marshals kill people, appeared on walls of the courthouse and surrounding area. (The wording of these signs may have been suggested by a much publicised anti-psychiatry streamer the Scientologists had once had drawn across the sky by an aeroplane during a psychiatrists' convention in Miami. It read: PSYCHIATRY KILLS.)
That same morning, as Muriel Yassky, a church member who was assisting defense counsel, was entering an elevator on the ground floor of the courthouse, she was seized by the arm and pulled from the lift by U.S. District Judge Hauk. He marched her over to the guard's table near the courthouse entrance and ordered the guard to take her name and address.
Judge Hauk asked the young woman if she was a Scientologist, how long she had been a member of the church, and whether she worked for the Guardian Office. He then began to berate her "in a very loud and irate tone" about the posters and stickers. He instructed the marshal that if she gave him any trouble to "slap her in irons" and bring her back to him.
The marshal escorted Miss Yassky back to the witness room, where she had left her purse, and inspected her personal identification. She assured him that the Scientologists had nothing to do with the posters, and he commented that he thought they were "smarter than that."
According to the defense team investigators, Judge Hauk
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then brought the incident to judge Richey's attention. At the hearings of July 19, 1979, judge Richey called the defendant's lawyers to the side bar and told them:
"I feel that the Court has a duty and I am lowering my voice as a matter of courtesy to you defense lawyers someone brought to the attention of another judge in the courthouse that one of the local marshals called to my attention a sign - I don't even know what it said to be honest with you ...
"But the reason I called you up here is that I thought I had, A, a duty to tell you that it had been brought to my attention; B, I don't think signs should be placed on public buildings. But I don't care. It is your decision. And maybe you would want to tell your clients, so that if they are involved - I don't know whether they are or not, and it is none of my business - but they might offend somebody in the courthouse."
Defense Attorney Philip Hirschkop thought he smelled FBI dirty tricks. After all, such a scheme would hardly be unprecedented. Documents only made available years after the Chicago Seven trial, had disclosed that the FBI in that case had concocted a bogus letter and sent it to one of the jurors, purportedly from the Black Panthers, threatening her life. It was a documented fact that the FBI had, over two decades, provided misinformation concerning the church and its members to the IRS Special Services staff, as well as a host of other agencies and individuals.
Later, during the same hearings, when FBI agent Brendan 0. Cleary was on the stand, defense lawyer Leonard Boudin sought to elicit from him some information about his career with the Bureau. After he had revealed that some of his work had been with the Security Division - a group that has been accused of break-ins and "black-bag" jobs - AUSA Timothy Reardon III objected to that line of questioning, unless the defense could show its relevance.
Relevance? "Bias, prior experience in searches and seizures, prior raids without warrants," Boudin replied. "Under the rules of evidence, prior misconduct on the part of
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anyone, including an FBI agent, is inadmissible.'
Not in Judge Richey's court, it wasn't. He sustained the objection.
Boudin continued his interrogation along this line, apparently for the record, since each question was objected to, and each Government objection was sustained.
The defense advocate got to the heart of the matter:
"Was the Security Division's work related to what is called the COINTEL Program?"
"Objection; same grounds."
"Sustained."
Attorney Boudin forged on. "I also ask your Honor to take judicial notice of the fact that the Congress has found that the COINTEL Program of the FBI, to which I have referred in my inquiry, was an illegal program, a program of burglaries and thefts by the FBI, and it was that area that I wanted to inquire into in connection with this witness' bias and this witness' performance of his obligation and rights under the search warrant."
"Well," said the court, "I am not aware of what the Congress has done in this area, and I can't take judicial notice of something I haven't seen and am totally unaware of, and I have never even heard of it."
Incredibly, here was a federal judge (appointed by President Nixon on the recommendation of Spiro Agnew) hearing a case which involved the most vital areas of constitutionally guaranteed liberties, and he professed total ignorance of the whole COINTELEPRO flap!
Referring to the signs put up in the courthouse, defense attorney Hirschkop now told the court:
"Maybe it was the FBI that did it. Why does it have to be the Scientologists?" Just because Judge Hauk had seen a sign, he assumed, without further inquiry or evidence, that a Scientologist had done it. "It is his own prejudices, and unreasonable ... As a federal judge, he probably should be prosecuted for it."
John Swerling, another defense lawyer, was also dis-
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turbed by the incident. "I am concerned," he told the court, "and I would like to know why it was brought to your attention.
"I think that it is important, because I think the fact that it was brought to your attention tends to prejudice our position. Now, I am not saying that it will affect you, but it could tend to. And I think that it is an interference of our case and of our ability to have a fair hearing on somebody's part. And I would like to know who made the decision to bring it to your attention."
judge Richey parried that question with the unconvincing statement: "I don't know and I don't think I have the ability to find out."
The defendants' legal team conducted a careful investigation of the incident and were convinced that the Scientologists were not implicated. (1, too, made my own probe of the affair and reached the same conclusion.)
Requests to the court for an evidentiary hearing to uncover the facts underlying the occurrence was denied. The defendants were thus deprived of a formal opportunity to prove that they had nothing to do with it.
Leonard Boudin, attorney for Mary Sue Hubbard, told Judge Richey that he was entitled to a public hearing "regardless of whether it may embarrass a United States Attorney or a Judge of this court. My clients and the other clients here are charged with very serious crimes, and we regard the incident ... to be an example of obstruction of justice."
The Government lawyers objected strenuously to a public airing of the matter. The matter, they argued, was not within that court's purview.
When Attorney Boudin insisted that he was prepared to support the allegation, Assistant U.S. Attorney Timothy Reardon III told him: "Then see the U.S. Attorney about it."
Said Boudin: "I am sorry; I think he is an adversary in this case. "
And that was that. Judge Richey made the decision that the matter should be reported to the U.S. Attorney (who was
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also the prosecutor) or to another judge (who would be a colleague of Judge Hauk). it would be wholly improper, said Judge Richey, for him to discuss it further.
Another outlandish incident occurred while court was in session. The doors of the courtroom had been left open because of the July heat, and noise from another courtroom across the hallway caught Judge Richey's attention. In the midst of an examination of a witness on the stand, the Judge left the bench and rushed through the courtroom and out into the corridor. He was followed by Defense Attorney Philip Hirschkop. By the time they reached the scene of the disturbance, the individuals connected with the case across the hall had departed. Judge Richey told Mr. Hirschkop that "those are your people," and that he wanted the commotion stopped. The U. S. marshals, however, confirmed the fact that the noisy group had been persons concerned with a bank robbery case in the other courtroom.
As the suppression hearings proceeded, testimony by FBI agents who had participated in the raids made it abundantly clear that particularity as to what should be seized was farthest from their minds. The aim was measured by their reach, not by anything described in the warrant. In fact, evidence showed that between one-third and one-half of the seizing agents had never even read the affidavit supporting the warrant - the limitation necessary to bring the warrant within constitutional bounds.
FBI Special Agent James A. Oppy, who directed one search-team, was asked on the witness Stand:
Q. "Are you familiar with item 162 of the Description of Property [to be seized]?
A. "Yes, I am."
Q. "Does item 162 refer someone back to the affidavit?"
A. "Yes, it does."
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Q. "When you searched that area we call the action area, did you give a copy of the affidavit to anybody?"
A. "No, I didn't."
Q. "You didn't have the affidavit, isn't that correct?"
A. "That is correct."
Q. "And no one in that area had the affidavit; isn't that correct?"
A. "That is correct."
Barry Weissman, a church attorney who was present at Fifield Manor during the search and seizure of those premises, said, under oath: "Mr. Banoun showed me a copy of the search warrant, but was unable to produce a copy of the accompanying affidavit, as Mr. Banoun said this was under seal at the courthouse, and no copy of it had been brought to the premises."
Agent Oppy was also asked whether, at the briefing which preceded the raids, he was told "that you, could go to every desk, to every drawer, to every 'in' basket, to every cabinet on that whole ground floor?"
He replied: "Yes, that was my understanding."
The FBI agent was then shown a photograph taken during the raid in which labels on the back of file cabinets identified them as those named in the search warrant. He was asked why the raiders didn't start their search by looking through the legitimate area first to see whether the items named in the warrant were there, rather than penetrating to other areas.
His answer: "It was a search almost everywhere at the same time."
Said defense attorney Hirschkop: "That is what I thought. "
That was, in fact, the general understanding of the raiders, as confirmed by other agents as well - that they could ignore the restricting clause of the affidavit (which many hadn't read, anyway) and "search everywhere at the same time.
The warrant itself was not regarded as posing any restraint
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as to what could be seized:
Q. "Did you seize documents that you thought showed violations of various state and local laws?"
A. "I believe I did."
Q. "Where in the warrant does it cover violations of various local and state laws?"
A. "It doesn't."
Defense lawyer Philip Hirschkop then showed the FBI agent a whole series of documents, including attorney-client correspondence; foreign newspaper articles; private cornmunications about private individuals, containing sensitive personal information unrelated to the case; documents pertaining to the Better Business Bureau, the American Medical Association, the American Psychiatric Association, and a Daily Bulletin of the American Pharmaceutical Association (dated May 16, 1963).
Special Agent Oppy could not recall why he seized them. All of them were manifestly outside the scope of the warrant. "They were," said Attorney Hirschkop, "(I don't have a better term) and I will just say idiotic in terms of the warrant."
After pointing out to the FBI man that on the inventory of items seized, which he had prepared, it was impossible to identify the things taken, the defense counsel read Section 5 of the FBI Training Manual, which states that the inventory should be prepared in the presence of the person from whom the property was seized or, in his absence, another credible person.
The following exchange then ensued:
Q. "Did you make any effort to prepare that return, especially these sections that are so general, that I just read to you, in the presence of the person from whom these things were being seized?"
A. "My section of the inventory, along with all the other sections, were compiled in one master inventory, a copy of which was left with officials of the Church of Scientology."
Q. "But it was not prepared in the presence of any member or official of the Church of Scientology, was it?"
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Q. "Each part of the inventory?"
Q. "Each part, or the whole, as a matter of fact?"
A . "No."
Agent Oppy also testified that Scientologists were not allowed to observe the search and seizure.
Q. ---infact, throughout B-1 [area] that whole day, from 9:00 o'clock in the morning on, there were no Scientologists standing and watching the seizure. Some were allowed to walk through on a tour every half hour, isn't that correct?"
A. "That is correct as far as I recall."
To justify the searching agents' gross overseizure of documents, both agents and Government lawyers invoked the so-called plain view doctrine. AUSA Judith Hetherton told the court: "We believe that evidence of crimes which are on all fours, virtually, with those described in the warrant should be classified as within the warrant, within 162 . . ."
just how such items as newspaper and magazine clippings, pharmaceutical bulletins, privileged correspondence between attorney and client, priest-penitent documents unrelated to any crime, etc., could be on all-fours with offenses described in the warrant Miz Hetherton did not vouchsafe.
One document which Agent Oppy said he seized under the plain view doctrine was a paper which referred to infiltration of the World Federation of Mental Health. He was asked: "What is illegal about infiltrating the World Federation of Mental Health?"
He answered: "As I recall, it would have seemed to me at that time that it was in line with the practice of the church set out in the affidavit of infiltrating governmental agencies." (The World Federation of Mental Health, of course, is not a governmental agency.)
Q. "Is infiltrating anything illegal?"
A. "Can you be more specific?"
Q. "Can you point me to a federal statute that says that
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you can't infiltrate?"
Up popped AUSA Banoun at that point in the examination to object to the question. After a cat-and-dog legal squabble among parties, unchecked by the court, the objection appeared to be sustained.
The defense counsel nevertheless, went on to ask:
Q. "You say you took this document under the plain view doctrine?"
A. "As far as I recall, yes."
Q. "Because there is something in here about infiltrating a private organization. Now I ask you which federal statute is violated by infiltrating a private organization?"
Again, an objection from AUSA Banoun.
"Your Honor," said Mr. Hirschkop, "I think it would be outrageous and an injustice if an FBI agent could take the stand and say, 'I will seize anything in the world I please under the plain view doctrine/ and then we can't ask him why. "
After a long and tedious argument with the judge and a series of questions of the FBI agent to elicit his views on the plain view doctrine of seizure, Attorney Hirschkop finally returned to the question that could have been and should have been ansered the first time around:
Q. "Now, Agent, you seized it on the plain view doctrine, you said, because it mentions primarily infiltration on the second page; is that correct?"
A. "Yes."
Q. "Is infiltration of a private organization illegal?"
A. "Not that I know of, specifically."
Q. "Thank you, Agent."
At the conclusion of the Los Angeles hearings, judge Richey descended from the bench, walked into the well of the court and, with effusive cordiality thanked the lawyers for their "assistance," and shook hands with each defendant.
The attitude of the Scientologists softened. Perhaps, they thought, like Chief Judge Bryant, this magistrate might also
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have some Constitutional ichor in his veins.
How little they understood the legal game. It was a stratagem familiar to the old pros. The judge is nice to you and repeatedly careful about everybody's "rights", so it will all look okay on the record when the case is appealed. Then he decides in favor of the Government on the factual issues. "You see," wrote veteran attorney Alvin H. Gershenson in his book, The Bench Is Warped, "cases are not reversed on factual issues; they are only reversed on issues of law."
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