"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:

  1. 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.
  2. 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.
  3. The FBI agents conducted a general, exploratory search,  in violation of the First and Fourth Amendments.
  4. The agents seized a vast number of documents beyond the  scope of the warrant.
  5. The agents used excessive force in their searches in  violation of the U.S. Criminal Code, Section 3109, Title 18.
  6. 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."

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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