I will try to get the rest of this scanned in tomorrow. Keith Henson SUPERIOR COURT OF CALIFORNIA .- COUNTY OF RIVERSIDE DIVISION 4 (HEMET) HON. ROBERT H. WALLERSTEIN, JUDGE The People of the State of California, ) Plaintiff, ) VS. ) No. HEM014371 Keith Henson, ) VOLUME I OF II PAGES 1 THRU 296 Defendant. ) REPORTER'S TRANSCRIPT OF PROCEEDINGS April 17, 19, 20 and 24, 2001 APPEARANCES: For the People: OFFICE OF THE DISTRICT ATTORNEY By: R. SCHWARZ Deputy District Attorney 4075 Main Street, 1st Floor Riverside, California 92501 For the Defendant: LAW OFFICES OF JAMES 0. CRIPPS By: JAMES HARR 133 North Buena Vista Avenue Suite 1 Hemet, California 92543 APM A0116 Amanda M. Fagan, C.S.R. No. 8764 Official Court Reporter Amanda M. Fagan, C.S.R. #8764 RPR WITNESS INDEX DIRECT CROSS REDIRECT RECROSS For the People: Rowe, Michael By Mr. Schwarz: 12 By Mr. Harr: 20 By Mr. Schwarz: : 25 By Mr. Harr: : 29 By Mr. Schwarz: : 30
Greer, Anthony
By Mr. Schwarz: _________ _. By Mr. Harr: 71 Petty, Frank C. By Mr. Schwarz: 124 Hoden, Ken By Mr. Schwarz: 134 By Mr. Harr: 208 By Mr. Schwarz: : 235 By Mr. Harr: : 250 By Mr. Schwarz: : 264 Greer, Anthony By Mr. Schwarz: 269 By Mr. Harr: 280 By Mr. Schwarz: : 287 By Mr. Harr: : 289 Hackermann, Wayne Albert WITNESS INDEX (CONTINUED) DIRECT CROSS REDIRECT RECROSS Dezotell, Hillary By Mr. Schwarz: 326 By Mr. Harr: 334 By Mr. Schwarz: : 338 Rowe, Michael By Mr. Schwarz: 339 By Mr. Harr: 344 By Mr. Schwarz: : 350 Amanda M. Fagan, C. S. R. #8764, RPR
EXHIBIT INDEX DEEMED IDENTIFIED AUTHENTICATED For the People:
1 - Internet Postings 19
2 - Internet Posting 26 37
3 - Deposition of Keith Henson 41
4 - Trial Transcript of May 6, 1998 41
5 - Deposition of Keith Henson of July 41 13, 2000
6 - Internet Posting dated July 7, 2000 42 51 7 - Internet Posting 52 53
8 - Internet Posting 53 53
9 - Internet Posting 53 54
10 - Internet Posting 54 55 11 - Internet Posting 55
12 - Internet Posting 57
13 - Internet Posting 57 58 14 - Internet Posting 58 63

15 - Internet Posting 63 65 16 - Internet Posting 66
17 - Internet Posting 68 75
18 - Internet Posting 68 76 19 - Internet Posting 68 76
20 - Internet Posting 68 76
21 - Internet Posting 68 77
22 - Internet Posting 68 78 23 - Internet Posting 68 78 24 - Internet Posting 68 79 25 - Internet Posting 68 79 Amanda M. Fagan, C.S.R. #8764 RPR EXHIBIT INDEX (CONTINUED) DEEMED IDENTIFIED AUTHENTICATED For the People: 26 - Map 134
27 - G.P.S. Coordinates 130 29 - Picture of secondary pedestrian underpass.. 156 Amanda M. Fagan, C.S.R. #8764, RPR 1 HEMET, CALIFORNIA - TUESDAY, APRIL 17, 2001
2 MORNING SESSION 3 THE COURT: Good morning. 4 MR. SCHWARZ: Good morning, your Honor. 5 MR. HARR: Good morning. 6 THE COURT: This was just handed to me. Let me just 7 take a look at it, please. 8 All right. Mr. Schwarz, on the motion for 9 reconsideration you wish to be heard? 10 MR. SCHWARZ: Yes, your Honor, I do. Thank you. 11 Your Honor, the People are in receipt of the Court's 12 ruling with respect to fair game. That was given to us on 13 Monday. 14 THE COURT: Just this past Monday? 15 MR. SCHWARZ: The previous Monday, your Honor. 16 THE COURT: Okay. 17 MR. SCHWARZ: It appears that the Court -- and 18 that's the reason for, the purpose for the motion for 19 reconsideration or clarification -- is stating that as long as 20 the People don't intend to introduce the beliefs of the 21 Scientologists or the beliefs of the victims, then there will 22 be no evidence of fair game. That's how the People understand 23 it by the last sentence that states, "The Court will 24 reconsider and grant the motion if the People will not 25 introduce the religious beliefs of the victims." 26 THE COURT: Well, perhaps the Court is unclear to a 27 certain extent. What the Court intended by it, by its ruling 28 was that if the People are not going to introduce the fact 1 that the victims are members of the Scientology Church, then 2 the fair game will not be permitted. The Court will grant the 3 motion. If, on the other hand, the People intend to introduce 4 the fact that the victims are Scientologists or members of the 5 Scientology Church, then the Court will consider under those 6 rigid restrictions whether or not to allow the doctrine of 7 fair game to be introduced. 8 MR. SCHWARZ: Well, your Honor, then thank you for 9 the Court's clarification. 10 THE COURT: Do you understand it now? 11 MR. SCHWARZ: I understand it. And may I repeat it 12 to the Court to see if I understand? 13 THE COURT: Sure. 14 MR. SCHWARZ: So the Court is indicating that if the 15 People do not even mention membership, then fair game is out 16 regardless? 17 THE COURT: That's right. 18 MR. SCHWARZ: Okay. As opposed to rigid religious 19 beliefs? 20 THE COURT: Perhaps the word "belief" was a little 21 confusing. I would agree. 22 MR. SCHWARZ: Because your Honor, the reason why the 23 People are somewhat concerned, I'm sure the Court's read and 24 considered the motion for reconsideration, the Count Three is 25 a hate crime under Penal Code Section 422.6, that it's alleged 26 that Mr. Henson in fact thwarted the people's -- or the 27 victims' ability to practice their religion, your Honor. And 28 the postings themselves are replete with references to 2 Amanda M. Fa an C.S.R. #8764 RPR 1 "Golden Era." And in this valley it's well-known that 2 Golden Era is basically a Scientology complex. And the people 3 that work in it happen to be Scientologists. And in fact, 4 since this is, in fact, a hate crime, it would be very 5 difficult and unworkable for us to -- because it is a 6 necessary element, your Honor, to be able to prove that they 7 are, in fact, being targeted based on their religion, 8 religious beliefs. It would be much akin to this, your Honor. 9 In California as well as the federal courts -- or 10 under federal law the Fair Housing or Fair Employment Act you 11 can't discriminate against someone based on their religious 12 beliefs, or their color, or their creed, or whatever the 13 whatnot. If a plaintiff brought an action that stated that, 14 "Well, I was discriminated against because I'm Catholic," or 15 "I'm Jewish," then for the Court to bar that ability to say 16 that, well, how do you prove that, that in fact that's the 17 motive for the discrimination? 18 In this particular case under Count Three 19 specifically the People have the burden of proof that, in 20 fact, Mr. Henson was doing the acts that he was doing, 21 essentially a hate crime, based on the fact that they were 22 Scientologists. So the mere mention of being a Scientologist, 23 your Honor, shouldn't carry that weight, because the People 24 have no intention to say, "Well, Victim Scientologist, tell me 25 what your religious beliefs are." "Those beliefs are we're 26 honest or good," or whatever the case may be. Or if we had a 27 Christian or Jewish person, "Tell me your religious codes" to 28 bolster their credibility. The People have no intention to 3 Amanda M. Fagan, C.S.R. #8764 RPR 1 bolster their credibility based on religious beliefs. The 2 People agree that 90 percent of the people claim some 3 affiliation, even if it is atheism. The simple fact that you 4 are a member of a religious order, or a religion for that 5 matter, doesn't thereby grant you instant credibility, your 6 Honor. 7 And I don't think that 789 was written in such a 8 way, because we -- we charge hate crimes all the time, your 9 Honor. I mean, for instance, in my motion for reconsideration' 10 we talked about the synagogue, you know, we have desecrated 11 synagogues all the time. In fact, in L.A. there were children 12 that were shot because of their religious beliefs. In order 13 for the prosecutor to be able to in fact prosecute that case 14 effectively under the hate crime statute, their religious 15 affiliation is a necessary element of the crime. There's no 16 other way to prove that element. So it would be virtually 17 unworkable for us to do that. 18 So I want to assure the Court that the People have 19 no intention of eliciting the fact to sway the jury in any 20 which way, only for the mere fact that they are 21 Scientologists, your Honor. And I think 789 permits us to do 22 so, or this would have been taken up in some other -- the hate 23 crime statutes would be in opposition. There would be no way 24 to do that. 25 And I can tell you from my experience, your Honor, 26 this is the first time this has ever really come up, because 27 simply stating that you're a Catholic, or simply stating that 28 you're Jewish, that doesn't engender any instant credibility, 4 Amanda M. Fagan, C.S.R. #8764 RPR 1 and normally wouldn't come up in a normal crime. But in a 2 hate crime, your Honor, that's specifically the reason why 3 it's there. 4 So I would ask the Court to please, if the Court's 5 intention by this is the clarification, please reconsider its 6 position, because otherwise the People have no way of proving 7 element Number Three -- or charging -- Count Three, I 8 apologize, your Honor. And then I ask for the ability to 9 reserve comment further if that's possible. 10 THE COURT: Sure. Counsel? 11 MR. HARR: Thank you, your Honor. 12 I believe Counsel's accurate in saying that he's 13 going to have to prove that Scientology is a religion, or at 14 least that these people are practicing some kind of religion. 15 The issue has to come up if Count Three is going to remain on 16 the complaint. So given that, religion is an issue in the 17 case. 18 I think the main point I can make at this point is, 19 the People seem to be relying primarily, at this point anyhow, 20 on Evidence Code Section 789. My opposition that the Court 21 just read indicates that at least in three places in the 22 People's pleadings they deny that this is a religious practice 23 or belief. They say that this concept, if it ever existed, 24 died 32 years ago. We have a witness today available who was 25 affiliated in such a way as we believe we can qualify him as 26 an expert, and which I believe is probably on the calendar 27 today as well as on a 402 matter. But the People are saying 28 on the one hand this is a religious belief, religious 5 Amanda M. Fagan, C.S.R. #8764 RPR 1 practice, we can't get into it. But their pleadings in at 2 least three places say it isn't a religious belief or 3 practice, it doesn't exist. 4 I think the best way to characterize this is that it 5 isn't a religious belief. It might be called an intelligence 6 practice. It might be called an encouragement to perhaps 7 fabricate things. It is not what one would consider a 8 religious practice. Basically, if I can cut right to the 9 chase, the purpose, if it exists, is to destroy the person who 10 is the focus of the attack. That goes to the heart of what 11 the trial process is all about. 12 THE COURT: Counsel, you brought that up the other 13 day, and the Court is well aware of your argument. The 14 concern the Court has, and I -- I do want to think about this 15 for awhile, and I am going to take it under submission. But 16 let me tell you the Court's concern. 17 Every issue concerning any religion can be arguable 18 as to whether or not it is a religious tenet or whether it's a 19 practice, irrespective of the religion and irrespective of the 20 particular item in question. So I think that if we allow that 21 argument to go any further, we're going to get into that, to 22 the question of whether or not it's a religion -- it is a 23 religious practice. And the minute we ask that question I 24 think we are violating -- you don't have to shake your head, 25 Counsel. 26 MR. SCHWARZ: Sorry, I apologize. 27 THE COURT: I'll make my decision whether you agree 28 or not. 6 Amanda M. Fa an C.S.R. #8764 RPR 1 MR. SCHWARZ: Absolutely, your Honor. 2 THE COURT: I think the minute we get into that 3 issue we are smack in the middle of discussing -- of 789. And 4 I think that that bodes against it. 5 That being said, I'm not sure that I'm going to re 6 -- I mean, I will reconsider. And I will take it under 7 submission. I'll think about it today. 8 Incidentally, in that regard let me say, the Court 9 has to be in Riverside on Thursday morning. So I have called 10 -- tomorrow morning. I have called the jury for Thursday 11 morning. So that gives us today and tomorrow afternoon to get' 12 through our motions if we need it. If not, I've already 13 ordered the jury for 9:00 o'clock on Thursday. So that's when 14 we anticipate starting the trial. Is there any reason why we 15 can't do that? 16 MR. SCHWARZ: I understand, your Honor, that his 17 Honor is going to be out Thursday afternoon; is that correct? 18 THE COURT: No. I'm out tomorrow morning. I will 19 be in Riverside. I have to sit in Riverside tomorrow morning. 20 I have a hearing in the morning there. But I will be back 21 here in the afternoon. So that if we have anything left to 22 discuss after today we can conclude it, any motions or any 23 hearings. 24 MR. SCHWARZ: That's fine, your Honor. 25 THE COURT: Okay? And then we'll take the matter 26 under submission. Does that create a problem for anybody? 27 MR. SCHWARZ: Not for the People, your Honor. 28 THE COURT: Mr. Harr, anything else? 7 Amanda M. Fagan, C.S.R. #8764 RPR 1 MR. HARR: Just that -- if I might? 2 THE COURT: Sure. 3 MR. HARR: The People basically say it's not a 4 religious practice or belief. The defendant says it's not a 5 religious practice or belief. Therefore, if both parties 6 agree that it is not a religious practice or belief to the 7 extent -- 8 THE COURT: What is not -- 9 MR. HARR: Fair game. The fair game doctrine. 10 THE COURT: Okay. 11 MR. HARR: To the extent that both parties agree 12 that it is not a religious belief or practice, seems to me the 13 door's wide open to let it in because both parties agree to 14 that. The part that the defendant is trying to prove is that 15 some background process is taking place that could very 16 possibly, very probably skew the outcome of this trial. The 17 People deny that that process exists. And I think for that 18 reason that it's open to admissibility on this issue. And I 19 believe that if we can qualify an expert to show that, that 20 that would be helpful information to the trier of fact. 21 THE COURT: Possibly. 22 MR. HARR: Thank you, your Honor. 23 THE COURT: Thank you. 24 All right. Counsel? 25 MR. SCHWARZ: I think, and with all due respect to 26 Counsel, I think Counsel is confusing the issue somewhat. He 27 refers to the fact that we say that it's not a religious 28 practice or belief, but only because it's been characterized 8 Amanda M. Fagan, C.S.R. #8764 RPR 1 as such. The People are -- and the only reason why the People 2 have denied that it is a religious practice or belief -- 3 because it's not a religious practice or belief, and it is not 4 a tenet, nor a practice. And the only -- if the issue that 5 Counsel is trying to get to is, "Well, they deny it, therefore 6 we get a chance to -- we get a chance to put an expert on," 7 that belies the fact that whether it is or it's not. Even if 8 the People openly admit that yes, fair game is a religious 9 practice or belief, then is the Court -- as I understand it 10 Mr. Harr is saying that there is no -- then there is nothing 11 for them to do. They can't cross-examine. It seems as though 12 789 is alive and well in opposing Counsel's mind. And he's 13 essentially making it, because we're denying that it is a 14 religious practice or belief, somehow 789 is waived. 15 THE COURT: I -- okay. I'm sorry. Go ahead. 16 MR. SCHWARZ: No, no, your Honor. Please, I would 17 love the Court's -- 18 THE COURT: Well, I don't want to get too far into 19 this thing, because we have plowed this ground before. And I 20 want to consider it in the quiet of my chambers as opposed to 21 talking it out. 22 But my concern is this, Mr. Harr. The instant we 23 talk about anything that is part of a religion, we are getting 24 into the issue of whether or not it can be argued under 789. 25 And my concern is that irrespective of whether Counsel would 26 say -- and I don't even know that Counsel knows. Certainly 27 I'm not going to accept your statements as your knowledge. I 28 accept it as your argument. But I don't accept it as fact. 9 Amanda M. Fagan, C.S.R. #8764 RPR 1 And that is that whether or not Scientology is a religion, I'm 2 not going to take evidence on that fact. I'm going to accept 3 it, because that's my responsibility, is to accept something, 4 some entity, some unit that says that they are a church. 5 That's our -- that's the nature of our system. And if the 6 Church of Scientology, the belief of Scientology, the ethic of 7 Scientology deems it is a religion, that's what the Court is 8 going to accept. And therefore, to discuss any aspect of that 9 may be, and I underline "may be" because I haven't made up my 10 mind yet, may be a bar toward reviewing any aspect of it. 11 Again, that being said, I intend to take evidence 12 today. I intend to allow Counsel to introduce their expert 13 and possibly qualify or disqualify such person as an expert. 14 Anything? 15 MR. SCHWARZ: Yes, your Honor. Now that we're -- 16 since the Court still is taking this under submission with 17 respect to the clarification of its order under 789, then -- 18 then we fall to the proverbial step two. The next question is 19 that I would ask the Court to inquire specifically what the 20 area of expertise of the -- 21 THE COURT: I said I was going to do that, Counsel. 22 MR. SCHWARZ: I understand, your Honor. And the 23 only argument -- 24 THE COURT: Don't argue. Let's get to it now that I 25 let you argue. 26 MR. SCHWARZ: Okay. 27 THE COURT: Okay. Now, we wanted to authenticate 28 some writings today; did we not? 10 Amanda M. Fagan, C.S.R. #8764 RPR