On Wed, 30 Oct 2002 18:09:49 +0100, Tilman Hausherr <tilman@berlin.snafu.de> wrote:

>Judge thinks about adverse inference from the "missing" PC files
>http://www.whyaretheydead.net/lisa_mcpherson/bob/A-023-071602-Whitfield-V1.html

[. . .]

>13 THE COURT: But, you see, under the law,
>14 Ms. Whitfield, something -- if the plaintiff can
>15 establish that something is supposed to be there, if
>16 they established this --
>17 THE WITNESS: Yes?
>18 THE COURT: -- and it's not there, a jury can
>19 be instructed that they may draw an adverse
>20 inference from that. So --
>21 THE WITNESS: Okay.
>22 THE COURT: -- now, you know, there is lots of
>23 lawyers in the Church of Scientology. They would
>24 know that.
>25 THE WITNESS: Yes.

I believe Judge Schaeffer was stating this particularly for the benefit of the Scientology lawyers present. Generally if one party to a legal action deliberately fails to turn over evidence in discovery that was properly requested, the "punishment" for this is to treat the evidence as if it would have tended to prove the opposite party's claim.

While this is "dicta" (ie not a legal ruling), the fact that she is thinking in these terms is at least interesting. This isn't the only mention of the "adverse inference" jury instruction she has made, although one of them was mistranscribed:

7 I think that, as with any privilege assertion,
8 an adverse interest can be drawn, perhaps and
9 perhaps not. We'll deal with that at the
10 appropriate time.

(Re Minton's tax returns from 5/14 AM)

The most important for the case is, of course, the copious required paperwork for the various ethics and other actions of Lisa McPherson prior to her death and during her imprisonment. In light of the cult's insistence on meticulous paperwork for all these actions when they normally occur at Flag and the paucity of what they actually did turn over in discovery, the room for adverse inference is large indeed.

The "lost" babywatch logs are particularly disturbing, especially considering the absolutely ghastly nature of what they actually did turn over. The adverse inference there is that the last days must have been truly horrific. I doubt a jury would even need a special instruction to add two and two.

ptsc

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