"In the groves of their academy,
at the end of every vista, you
see nothing but the gallows."
- Plato: Laws
12. The Quality of Mercy
OVER a number of years prior to meting out sentences to the nine Scientologists he had declared guilty as charged, Judge Charles Richey had carefully nurtured an image of himself as a liberal jurist with almost a religious reverence for the Constitution.
He once had told a reporter from the Washington Post that in a decision he had just made, he had been "leaning over backwards to uphold the Constitution and be fair to the accused as well as to the government."
He carefully built a reputation for having a deep concern about the rehabilitation of convicted criminals, and was a
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vocal advocate of probation and community service as alternatives to incarceration.
When the time arrived for imposing sentences on the accused Scientologists, however, out came a "hanging judge." Figuratively speaking, he not only "threw the book at them," as the saying goes, but his gavel and the thick probation files as well.
A motion filed on the eve of sentencing, asking that Richey turn the sentencing over to another judge because he was biased against the defendants and their church, seemed to have been justified.
Under terms of the plea-bargaining agreement, between defence counsel and the prosecutors, the Government had stated that it would take "no position and is making no request on the matter of sentence with respect to the defendant Mary Sue Hubbard. " Ignoring this compact, which he himself had mid-wifed and ruled to exist between the parties, Richey pronounced the maximum penalty the law would allow on Mrs. Hubbard - five years in prison and a $10,000 fine. The outspoken proponent of alternatives to incarceration went even further in his castigation. He took the unusual step of ordering the defendant jailed immediately even while her appeal from the conviction was pending. His obvious determination was to see her behind bars as quickly as possible.
Upon vigorous representation by Mrs. Hubbard's lawyer, Richey agreed to give her ten days in which to seek an order from the U.S. Court of Appeals that would allow her to remain free until her legal appeals were exhausted.
Richey declared that the defendants' planned appeal of their convictions would be "frivolous," and said that repeated tactics by church lawyers had been aimed at frustrating the justice system and stalling the case.
Four other defendants - Henning Heldt, Duke Snider, Gregory Willardson, and Richard Weigand - were also ordered to jail immediately. They were sentenced to four years imprisonment and fined $10,000 each.
The following day the remaining four defendants were
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handed sentences. Two of them - Cindy Raymond and Gerald Wolfe - received a maximum 5-year term and were fined $10,000 each.
When Cindy Raymond pleaded for leniency because she has a two-year-old child, Richey turned a deaf ear, remarking callously: "I think she wants to be a martyr."
Defendant Mitchell Hermann was given four years in prison: and Sharon Thomas six months in jail and five years probation.
Defense attorneys immediately petitioned the U.S. Court of Appeals for an expedited consideration of the defendants' application for relief, pending their appeal, and for immediate release from jail, pending the disposition of the motion. They also asked the court to shorten the Government's time to file a response.
The prosecution opposed the release of the defendants on two ridiculous grounds, namely, that they would pose a danger to the community (they had been free on their own recognizance during the preceeding 14 months of hearings); and that any appeal they might make would be frivolous.
Replying to the prosecutor's opposition to release, the defense lawyers noted that "people convicted of far more dangerous, and indeed, violent crimes, including murder, bank robbery, etc., are regularly given bond pending appeal. Certainly, stealing Xerox paper, conspiring to photocopy government documents principally on your Church, entering government offices (with a government employee along), bugging an IRS conference several years ago, or even concocting a story for the FBI are not so heinous (Richey's word) as to automatically deny bond."
The movants went on to relate to the higher court the horrifying experiences already endured by the defendants whom Judge Richey had rushed into the slammer.
"When the six white males, all educated and not of rough nature, were taken to the D.C. jail, they were greeted with ... repeated threats of rape and bodily harm. They signed themselves into lock-up status to stay alive. On December 14
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in the evening, three of the co-defendants - Weigand, Hermann and Wolfe - were suddenly told to pack and were thrown into a holding cell with thirty black males in this racially charged atmosphere. They were threatened and subjected to racial epithets. One was mugged by a prisoner boasting of a double murder conviction. Richard Weigand had both his wedding ring and his belt robbed by this murderer. Mitchell Hermann was similarly threatened, and attempted to be robbed. They were taken to Lorton where they were put under padlock in a cell house of black prisoners and again subjected to racial verbal abuse and threats. Hermann and Wolfe were threatened by a prisoner with a knife, who inquired as to their watches and possessions. This same prisoner tried to stab Weigand in the stomach with a six-inch knife. Their lawyers were told they could not see the prisoners from Friday evening until Monday. Guards told the three to hang sheets across the front of their cells and stay in the back of these small cells to avoid black prisoners trying to knife them or throw hot coffee on them. Another guard said to take down the sheets or the prisoners would burn them and they could asphyxiate in their cells. They were told by guards of the probably forthcoming rapes upon them. They spent the night cowering in the back of their cells, spending a sleepless night in terror. On Saturday, December 15, 1979, a defense counsel had them moved back to the D.C. Jail after several hours of frantic telephone calls. It is hard to say if the physical danger is as great, but their terror is very real and present. Every hour they are so confined, without bond, is not just a violation of the "Federal Bail Reform Act," not just an absolute travesty of justice, but an indecency of grotesque proportions only because of who they are."
In concluding their argument, the defending counsel took a parting shot that would hit the appellate judges where they lived:
"If bond is denied, it will not be because of conjured or grossly distorted concepts of 'danger' or 'flight' or 'frivolity.' It will be because of Scientology. It will be because this court
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house was involved and because some of the seized documents concern Assistant United States Attorneys and, indeed, judges in this courthouse. Perhaps the district judge [Richey] could not brook these things, but that effect on him should not bear on bond, and it is inconceivable that this Court, in the light of all the foregoing and the mandate of the 'Bail Reform Act,' could adhere to a denial of bond."
In its memorandum and order, the U.S. Court of Appeals granted the applications for release, noting that (unlike Judge Richey) "we do not find these appeals frivolous nor do we think appellants present such a risk of flight or danger to the community that they cannot be released pending appeal, under appropriate conditions."
The court stated also that it found the appeal on the legality of the July 8 search presented "a non-frivolous issue" and therefore could not be characterized as taken for delay.
Judge Richey was obliged to free the defendants he had ordered to jail before they had an opportunity to appeal their case to a higher tribunal. The question remained: was the severity of the sentences he imposed, and his overheated drive to punish the offenders an act of personal revenge, as the defense lawyers suggested; or was it an application of his basic concept of justice: to "balance" the Constitutional rights of the defendants against his professed concern about "social costs. "
We have thus far neglected the second front in the legal battle between the U.S. Government and the indicted members of the Church of Scientology. That phase of the proceedings was occurring in Great Britain where two of the accused faced extradition to the United States to stand trial.
The two accused were Jane Kember, a hard-working church executive, who headed the Guardian Office; and her aide Morris Budlong, who was in charge of the Information Office.
Mrs. Kember, a mother of two sons, carried a heavy bur
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den. She coordinated and directed the affairs of a far-flung, global organization which had the responsibility of protecting her church against the concerted attacks of national governments and the powerful private interests that controlled them. At the same time, she successfully managed her home and looked to the needs of her husband and teen-age sons. She was well-liked and admired by all who knew her. The legal charge that she had been indicted for crimes committed by other persons in another country was incomprehensible to her lay associates in England.
Morris (Mo) Budlong, a quiet-spoken American, had been resident in the United Kingdom for 12 years, and was married to an Englishwoman. The couple had a daughter, aged 8. He, too, had plenty to keep him busy. It was only at rare intervals that he could find the leisure to enjoy family life, or to give fleeting attention to personal pleasures.
The two defendants' legal troubles began when British authorities, in response to the U. S. Government's request for extradition, arrested them on November 17, 1978. They appeared at Bow Street Magistrate's Court in London, where they were booked and released on bail.
Two months later they once more appeared before the Bow Street Magistrate, who set the date for the first full hearing of their case for May 14, 1979.
The proceedings were held before W. E. C. Robins, Stipendiary Magistrate, at Wells Street Court, Kent. Louis Blom Cooper, QC, represented the Scientologists. The English barrister at first submitted that, so far as Mrs. Kember was concerned, her case should be referred to the European Court in Strasbourg. He argued that, as a British national and a "worker" (employed at the church's headquarters in East Grinstead); she had the right, under the Treaty of Rome, to have a hearing before that tribunal.
The magistrate, however, rejected the argument.
The U. S. Government had asked for extradition of the two accused church executives on charges of burglary and obsturcting the courts of justice. Magistrate Robins dismissed
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the latter charge.
The Scientologists' counsel then opposed the extradition on grounds that the alleged offense of counseling burglary was, in reality, a political offense against the state, and as such, not extraditable. "It is a well-known principle of English law," he said, "that the courts of this country will not lend themselves either directly or indirectly, to enforce a revenue law or a penal law of a foreign state.'
In his final submission to the court, Blom-Cooper argued that the U.S. Government was using the burglary charge, which they knew to be an extraditable offence, to disguise the true nature of the case, the reaction of government "having the walls of its security breached."
"Would the U.S. government really be interested in these two if they had only stolen a few sheets of copy paper and used the electricity in the photocopying machine?"
The real motive was to return the defendants to the United States "to punish them for a political offense against the state," he declared.
After nine days of hearings, the magistrate decided that the offence for which the Scientologists were charged was not political in nature, and ordered them extradited. He agreed that some U.S. officials may have over-reacted at times.
"I would not like it to be thought that I put the Church of Scientology into any other category than an entirely responsible organization with very idealistic aims ... but there were these allegations of serious offences which were being made, and in my view the government had to look into it.
"Now with all this background I see ... nothing wrong in their attempting to obtain some sort of tax uniformity within the Church of Scientology and their various organizations. I see nothing wrong in their using microphones; I see nothing wrong in it, or infiltrating - sending their spies into the church services. This seems to me to be one of the concomitants of investigation these days." (Emphasis mine.)
A magistrate of George 111, justifying the Writs of Assistance, could not have said it better.
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The next step was an appeal to the Queen's Bench Divisional Court.
Appearing before Lord Chief Justice Widgery and Justice Griffith, the defense counsel once more argued for presentation of the case before the European Court. They again accused the U.S. Government of exercising its power for an ulterior purpose, that is, to extradite the co-defendants under the guise of going into public premises and taking away photocopying paper worth $100 or less, when their real purpose was to punish them for taking information from official files. Unlike Great Britain, the United States has no Official Secrets Act, so the accused could not be prosecuted for acquiring state secrets.
What the United States Government was concerned about, said Blom-Cooper, "was the information which the photocopying paper had on it - internal, secret information about the Church of Scientology."
He repeated his argument, made before the Metropolitan magistrate, that the offence was of a political character, and therefore not extraditable under the Extradition Act of 1870.
The Divisional Court found in favor of the U.S. Government, but gave the defendants leave to appeal their case to the House of Lords, which they did.
On February 7, 1979, however, the House of Lords appeal committee turned down their petition for a hearing before the full House.
The only remaining remedy available to them was an appeal to the Home Secretary, an appeal still pending.
It was a dim hope, indeed.
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