Re: Henson Hemet Trial Transcript (to pg 50]

From: hkhenson@home.com (Keith Henson)
Subject: Re: Henson Hemet Trial Transcript (to pg 50]
Date: Mon, 10 Sep 2001 13:45:19 GMT
Organization: Temple of At'L'An
Message-ID: <3b9cc330.70956044@news2.lightlink.com>

On Mon, 10 Sep 2001 07:27:06 GMT, hkhenson@home.com (Keith Henson) wrote: >I will try to get the rest of this scanned in tomorrow. Keith Henson

1 MR. SCHWARZ: Yes, your Honor, we did. 2 THE COURT: Internet postings; is that correct? 3 MR. SCHWARZ: Yes, that's correct. 4 THE COURT: You have two witnesses, I believe? 5 MR. SCHWARZ: We have two witnesses, your Honor, and 6 deposition, certified copies of deposition and trial 7 transcripts, self-authenticating, your Honor. 8 THE COURT: All right. Let's begin. 9 MR. SCHWARZ: Your Honor, with all due respect, I 10 don't know that all of the exhibits have been labeled by Madam 11 Clerk. And so would the Court want to take a few minutes? 12 Because there are 25 exhibits. 13 THE COURT: They can label them later. Unless you 14 need them labeled. 15 MR. SCHWARZ: No, your Honor, I do not. 16 THE COURT: You're going to use them; aren't you, 17 Mr. Schwarz? 18 MR. SCHWARZ: Yes, I am. Actually -- and - 19 THE COURT: Do you want them back? 20 MR. SCHWARZ: If the Court wants to, I have a copy 21 of the exhibits. If the Court wants to refer to them and the 22 Court will accept that I have an identical copy, then we won't 23 have to go back and forth. 24 THE COURT: I take it Mr. Harr has copies as well? 25 MR. SCHWARZ: Yes, your Honor. 26 The People intend to use the ELMO, your Honor. 27 THE COURT: Okay. 28 All right, Counsel. 11 Amanda M. Fagan, C.S.R. #8764 RPR 1 MR. SCHWARZ: Thank you, your Honor. The People at 2 this stage of the proceedings, your Honor, the People would 3 move to exclude witnesses, potential witnesses in the audience 4 so that they - 5 THE COURT: Are there any potential witnesses? Sir, 6 would you mind waiting outside? Thank you, sir. And please 7 don't discuss the case while you're waiting. 8 Are you a witness, ma'am? 9 MR. SCHWARZ: She is a potential witness. Not that 10 she will be called, but is a possible witness. 11 Your Honor, the People would call Deputy Rowe to the 12 stand. 13 THE CLERK: Please raise your right hand. 14 Do you solemnly state that the testimony you are 15 about to give in the case now pending before this Court shall 16 be the truth, the whole truth, and nothing but the truth, so 17 help you God? 18 THE WITNESS: I swear. 19 THE CLERK: Thank you. Please be seated. 20 DIRECT EXAMINATION 21 BY MR. SCHWARZ: 22 Q. Deputy Rowe, can you turn on your monitor, please. 23 THE CLERK: Can I have you state and spell your full 24 name. 25 THE WITNESS: Michael Rowe, M-i-c-h-a-e-1, R-o-w-e, 26 Rowe. 27 MR. SCHWARZ: Thank you, your Honor. 28 Q. Deputy Rowe, how are you employed, sir? 12 Amanda M. Fagan, C.S.R. #8764 RPR Page 13 missing 1 Q. Okay. I'm presenting on the ELMO -- let me see if I 2 can focus in on this. Can you read that? Probably not. 3 A. I can read it because I'm familiar with the 4 document. 5 Q. Okay. Well, you indicate that you are familiar with 6 the document, sir; how are you familiar with the document? 7 A. I received these documents on the date that I 8 arrived at the Golden Era Productions and given a bunch of 9 documents by Ken Hoden and their internet expert, Ida Gavina, 10 I believe his name was, presented me a bunch of internet 11 documents as I arrived there. 12 Q. Okay. And what was the nature of receiving these 13 documents? 14 A. I received a call that they had somehow been made 15 aware of this internet site or news group -- or I'm not too 16 familiar with the exact terminology of the internet -- but 17 that they felt that they were being threatened by some of the 18 postings and some of the comments that were on the internet. 19 They called down to the station, and I was sent out there to 20 handle it. 21 Q. And when you arrived you spoke, you said you spoke 22 with a person by the name of Ken Hoden; who is he? 23 A. Ken Hoden, I believe he is the general manager of 24 the -- maybe the San Jacinto chapter, I suppose. I know he 25 was a general manager, I don't know of what. But he referred 26 to himself as the "general manager." 27 Q. When you received these internet documents, did you 28 review them? 14 Amanda M. Fagan, C.S.R. #8764 RPR 1 A. Yes. 2 Q. And after you reviewed them what did you do? 3 A. Well, after I -- they gave me an opportunity to go 4 over them, review them myself. They had an attorney present. 5 They also had an internet expert present that kind of went 6 over the document and kind of explained to me a little bit 7 about how that works on the internet. After I completed my 8 interview and everything with them, after reviewing the 9 documents, I went out front and spoke to Keith Henson outside 10 in front of the Scientology. 11 Q. Okay. So you went out and spoke with Keith Henson; 12 what happened? 13 THE COURT: Just one minute, Counsel. 14 Ma'am, are you a witness in this case? 15 UNIDENTIFIED PERSON: What case is this? 16 (Discussion held with Deputy out of reporter's 17 hearing, and the unidentified person left the 18 courtroom.) 19 THE COURT: Go ahead, Counsel. 20 MR. SCHWARZ: Thank you, your Honor. 21 Q. Where were we? You went out to talk to Mr. Henson; 22 where was he at? 23 A. He was picketing directly in front of the church. 24 Q. So you approached Mr. Henson; what happened? 25 A. Based on the documents and the information that I 26 had, the Penal Code that was presented to me by their 27 attorney, I arrested Mr. Henson at that time, took him down to 28 the station so I could further interview him and try to obtain 15 Amanda M. Fa an C.S.R. #8764 RPR 1 a little bit more validity of the documents that I had. I was 2 unable to interview him up there in front of the church 3 because Scientology -- there was people following him around 4 up there as well, so that was not a very good spot to 5 interview him. So I took him to the station and interviewed 6 him there. 7 Q. Now, you arrested him; so did you read him his 8 Miranda rights? 9 A. Yeah. 10 Q. And did he still agree to go over the documents with 11 you? 12 A. Yes. 13 Q. Okay. Now, with respect to this document, would you 14 mind reading, please, the highlighted portion of the document 15 A. It says, "Ahh, I love the smell of gun powder 16 drifting on the morning breeze." 17 Q. Okay. To put it in context, can you please read the 18 line above it? 19 A. "Scientology is a business, and an unethical 20 business at that. It is run by dishonorable men and women, 21 and I will see it in ruins." 22 Q. Okay. So now, did you discuss this document with 23 Mr. Henson? 24 A. Yes. 25 Q. Okay. And do you recall what he said with respect 26 to the document? 27 A. I believe he quoted that exactly. 28 Q. He quoted it? 16 Amanda M. Fagan, C.S.R. #8764 RPR 1 A. Yeah. I think if I remember correctly he said that 2 exactly. 3 Q. Did he indicate whether or not he posted that 4 document to the internet? 5 A. I don't recall if he -- I believe so. I mean, I 6 don't recall if he said he posted that one in particular.I 7 remember he said that he has posted hundreds of documents, or 8 hundreds of postings on this. But as far as that one in 9 particular, without any notes or anything I don't recall if he 10 said he posted this one particularly. 11 Q. Did you tape that interview, Deputy? 12 A. Yes. 13 Q. And did you get a chance to listen -- do you have 14 the transcribed - 15 A. No. 16 Q. What did you do with the - 17 A. It's still over there by my seat. 18 MR. SCHWARZ: With the Court's permission can I go 19 - 20 THE COURT: Yes. 21 MR. SCHWARZ: Thank you. 22 Now, may I approach, your Honor? 23 THE COURT: Yes. 24 MR. SCHWARZ: Thank you. 25 Q. For the record I'm handing Deputy Rowe a copy of a 26 transcribed copy of the tape he made with Mr. Henson. 27 Did you get a chance to listen to the tape and 28 review the document, or the transcription? 17 Amanda M. Fagan, C.S.R. #8764 RPR 1 A. Yes. 2 Q. Was it accurate? 3 A. Yes. 4 Q. Okay. Would it help you to refresh your 5 recollection to exactly what he said if you turned to -- if 6 you read the transcription? 7 A. Sure, yes. 8 Q. Would you turn to page 26. 9 I apologize. 21. 10 THE COURT: The Court does not have that; is that 11 correct? 12 MR. SCHWARZ: No, the Court does not. Your Honor, 13 this is simply to refresh the memory of the witness. 14 Q. Does that refresh your recollection? 15 A. Yes. 16 Q. Now, what did Mr. -- did Mr. Henson indicate whether 17 or not he posted that? 18 A. Yes. 19 Q. And what did he say? 20 A. He said he was posting a follow-up to something 21 somebody else said. 22 Q. And did he -- and.you indicated before that he 23 quoted from that? 24 A. Yes, he said it exactly. 25 MR. HARR: Can I see your copy? The copy I have 26 doesn't seem to have that on there. 27 MR. SCHWARZ: I gave it to him. 28 MR. HARR: Well, I thought I had what this was 18 Amanda M. Fagan, C.S.R. #8764 RPR 1 supposed to be. I don't have, and I have this. 2 Q. (By Mr. Schwarz): So he admitted to posting it? 3 A. Yeah. 4 THE COURT: Posting which, Counsel? 5 MR. SCHWARZ: Posting this document, posting this 6 information, "Ahh, I love the smell of --" 7 THE COURT: People's 1? 8 MR. SCHWARZ: People's 1, your Honor. 9 Q. Now, after he talked about the document, and given 10 the context of the interview, were you sufficiently satisfied 11 that he was the author of the information that's contained in 12 People's 1? 13 A. Yes, he was familiar with it. And he told me that 14 he posted it, and said, "I posted it." 15 MR. SCHWARZ: Thank you, your Honor. Or thank you, 16 Deputy. 17 Your Honor, I'm going to ask the Court, because 18 every Court is different, does the Court wish the People to 19 attempt to introduce each posting, each item of evidence as we 20 go along? 21 THE COURT: Yes, this morning. 22 MR. SCHWARZ: At the end? 23 THE COURT: Yeah. 24 MR. SCHWARZ: Okay. 25 THE COURT: All right. Counsel? 26 MR. HARR: Could I inquire, please, on this? 27 MR. SCHWARZ: I was going to -- do you want to do it 28 after each posting, your Honor? 19 Amanda M. Fagan, C.S.R. #8764 RPR 1 THE COURT: Yes, let's do it that way. 2 MR. SCHWARZ: Okay, that's fine. Go ahead, Counsel. 3 MR. HARR: Thank you, your Honor. 4 CROSS-EXAMINATION 5 BY MR. HARR: 6 Q. Isn't it true that, Deputy Rowe, that at the 7 beginning of your interview with Mr. Henson that Mr. Henson 8 indicated that he really couldn't authenticate these postings 9 without seeing them on the internet; isn't that correct? 10 A. Yes. 11 Q. And didn't he say that the best he could do with 12 these postings would be to see if there was anything grossly 13 aberrant or grossly out of whack, that he didn't really have 14 any real recollection of exactly what was posted; isn't that 15 correct? 16 A. I don't recall that without refreshing my memory. 17 Q. Okay. Well, somewhere in this -- I'll try to pull 18 that part of the transcript up. I don't have that immediately 19 here. But who did you say you got these postings from? 20 A. I had Ken Hoden, their internet expert -- like I 21 said, I think his name was Ida Gavina or something like that 22 -- there was four or five of them. I believe Ken Hoden was 23 the one who made the phone call, my reporting party. I 24 believe he was the one who actually gave me the documents 25 after they had been reviewed by all four or five of the people 26 who were there in the meeting. 27 Q. So I take it from your answer that you didn't 28 actually try to pull up this news group or wherever this was 20 Amanda M. Fagan, C.S.R. #8764 RPR 1 posted and try to read for yourself the actual posting? 2 A. No. I am not that familiar with the internet. And 3 for that reason I wrote the report up and sent it to the 4 investigators for further review and to try to attempt to 5 attain the validity of the documents. Even if I pulled it up 6 on the internet, I wouldn't even know how to get there. So I 7 didn't even attempt to. I sent it to the detectives to let 8 them try to figure it out. 9 Q. Okay. Have you done any type of background check 10 regarding Ida Gavina, the person who essentially gave these 11 documents or pulled these documents up? 12 A. Nope. 13 Q. So as far as you are aware he might be under 14 indictment for posting - 15 MR. SCHWARZ: Objection - 16 MR. HARR: Goes to the reliability of the document. 17 THE COURT: Your objection, Counsel? 18 MR. SCHWARZ: Your Honor, Counsel's placing words of 19 - 20 THE COURT: State your grounds, Counsel. 21 MR. SCHWARZ: Your Honor, it's an attack, badgering 22 the witness, your Honor. 23 THE COURT: Overruled. 24 THE WITNESS: I'm sorry, could you repeat the 25 question? 26 Q. (By Mr. Harry: Sure. So I take it you didn't do 27 any background check as to whether Mr. Gavina is under 28 indictment for posting bogus postings in the name of Keith 21 Amanda M. Fagan, C.S.R. #8764 RPR 1 Henson? 2 A. No, sure didn't. 3 Q. Okay. So would that have any, if that is in fact 4 true, would that change your opinion about the reliability of 5 these documents in any way? 6 A. Well, not really. Mr. Henson was pretty familiar 7 with everything. As I was going over the documents he was 8 quoting them pretty much verbatim as he was discussing the 9 topics of them. So he was in fact pretty familiar with them. 10 Maybe he, you know -- I don't -- they may in fact be bogus 11 documents. I can't prove that. And as far as I know, I don't 12 know if there's any way to prove them, that they are valid 13 documents. But Mr. Henson was very familiar with the 14 questions that I was asking him about them, so. 15 Q. Okay. Thank you. I get the idea. 16 A. Sorry. 17 Q. Did you ask Mr. Henson -- if, in fact, he did 18 acknowledge that he posted these things, did you ask him when 19 he posted them? 20 A. I don't recall. I don't recall if I asked that, 21 when he posted them, or not. 22 Q. It would appear that these were posted -- of course 23 I'm no internet expert, either -- but it would appear they 24 were posted in 1995; is that what you believe, or do you know 25 when they were posted? 26 MR. SCHWARZ: I have to make an objection at this 27 point. Mr. Henson has some type of electronic device where 28 he's listening and talking to other people. I would ask that 22 Amanda M. Fagan, C.S.R. #8764 RPR 1 the Court instruct him not to do that - 2 THE COURT: What is that, sir? 3 THE DEFENDANT: It's my cell phone, and it vibrated. 4 And my wife's outside with the checkbook for paying Mr. Harr. 5 Sorry. 6 THE COURT: Take care of that on a recess. We'll 7 take a recess at 10:00 o'clock. 8 THE DEFENDANT: Thank you. 9 Q. (By Mr. Harry: So the period of investigation I 10 guess is somewhere between July, 2000 and September, 2000, or 11 at least that's a relevant period according to the complaint. 12 So as far as you know these were posted in 1995, or you have 13 no idea when they were posted? 14 A. Without reviewing the actual documents, I remember 15 that -- I believe there was some concern with Mr. Henson back 16 in '95. Without reviewing the documents, again, I don't 17 recall exactly the dates that they were posted. I know that 18 -- after reviewing my report I believe it was July 15, 19 somewhere around there, that they'd posted it. And they 20 called me on the 19th of 2000. As far as actual dates and 21 times that they were posted, again, without reviewing the 22 documents I don't recall the dates. 23 MR. HARR: Thank you. 24 Your Honor, could I please have a moment? I'm sure 25 I recall there was a place where Mr. Henson indicated - 26 THE COURT: Go ahead. 27 MR. HARR: Thank you. 28 Q. Okay. Well, I don't seem to be able to find it 23 Amanda M. Fagan, C.S.R. #8764 RPR 1 right here. But anyhow, in your discussion, Deputy Rowe, with 2 Mr. Henson, or your interview, did Mr. Henson indicate that he 3 was trying to indicate that this was directed toward the five 4 alleged victims in this case, that somehow this tied into an 5 alleged threat? 6 MR. SCHWARZ: Objection, your Honor, relevance. 7 THE COURT: Sustained. 8 MR. HARR: Your Honor, in this case the relevant 9 period is in 2000. This is a 1995 posting. This is an 10 obvious comment from a movie, and I'm wondering what the 11 relevance to this case is on the issue of threat. 12 MR. SCHWARZ: Your Honor, we're not - 13 THE COURT: We're just authenticating the document, 14 Counsel. 15 MR. HARR: So on the other issue, to reserve on 16 whether it's 352 material or whatever, that's still open? 17 THE COURT: Yes. 18 MR. HARR: Okay, your Honor. Thank you. 19 THE COURT: Would you please sit down, sir. 20 Q. (By Mr. Harry: So you don't -- is it accurate to 21 state, Deputy Rowe, that you don't recall whether he said he 22 was unable to specifically recall these documents? 23 MR. SCHWARZ: Objection, your Honor, asked and 24 answered. 25 THE COURT: Overruled. 26 THE WITNESS: No. Again, like I said, this was July 27 19th of last year. I don't recall everything that happened in 28 the interview. I don't recall. He may have, he may not have. 24 Amanda M. Fa an C.S.R. #$764 RPR 1 Without reviewing it, without seeing it to refresh my 2 recollection in the transcript, I don't recall if he said that 3 or not. 4 MR. HARR: No further questions, your Honor. 5 THE COURT: All right. Anything? 6 MR. SCHWARZ: May the Court indulge me, are -- we're 7 going to go after every document, and then allow for 8 cross-examination, and then the People at the end of the 9 witness will move into evidence? 10 THE COURT: Yes. 11 MR. SCHWARZ: Okay. 12 REDIRECT EXAMINATION 13 BY MR. SCHWARZ: 14 Q. Just with respect to People's Exhibit Number 1, 15 Deputy Rowe, when -- from your recollection Mr. Henson 16 indicated that he posted it, and from the context of the - 17 from the context of your interview with him did you believe 18 that in fact Mr. Henson was the author of what was written in 19 the posting? 20 THE COURT: His belief I think, Counsel, is 21 irrelevant. I think he said Mr. Henson told him that he 22 thought he posted it. 23 MR. SCHWARZ: Okay. Well, may I address the Court? 24 THE COURT: Yes. 25 MR. SCHWARZ: Well, your Honor, given the fact that 26 Deputy Rowe was in the interview at that time, and he was the 27 only person that was able to read the body language of this 28 person, and in the context of how in fact he went about the 25 Amanda M. Fa an C.S.R. #8764 RPR 1 interview, your Honor, and the way he went over the postings, 2 your Honor, I believe that his impression about the 3 authenticity is relevant in this case. Irrespective of 4 whether or not he -- even if he said -- if he handed a 5 document to Mr. Henson and he -- they basically showed it to 6 him and he nodded, "Yeah, that's mine," that would be enough 7 under the preponderance of the evidence, your Honor. 8 THE COURT: Is that what he said? 9 MR. SCHWARZ: Yes, your Honor. In a sense. 10 THE COURT: That's it. Isn't it? 11 MR. SCHWARZ: Yes, your Honor. 12 THE COURT: Okay. 13 MR. SCHWARZ: Okay. I'll move on, your Honor. 14 THE COURT: All right. 15 MR. HARK: No further questions, your Honor. 16 THE COURT: Go ahead. 17 MR. SCHWARZ: Thank you. 18 Q. Deputy Rowe, I'm placing on the ELMO what's been 19 previously marked as People's Exhibit Number 2. Do you 20 recognize this document, sir? 21 A. Yes. 22 Q. And how do you recognize this document? 23 A. It's another one of the documents I was given by the 24 church -- Ken. 25 Q. Okay. And did you review this document? 26 A. Yes. 27 Q. And would you read the highlighted portion? 28 A. Whatever that symbol is "has to watch for eagles as 26 Amanda M. Fagan, C.S.R. #8764 RPR 1 well as cruise missiles." 2 Q. And do you recall speaking to Mr. Henson or 3 discussing with Mr. Henson this posting? 4 A. Yes. 5 Q. And what did Mr. Henson say regarding the posting? 6 A. He said that Miscavige, which is what that symbol 7 refers to, I guess they use that to refer to someone named 8 David Miscavige, who is a leader of Scientology, would have to 9 worry about eagles as well as cruise missiles hitting him. 10 Q. Okay. And did he quote this information to you? 11 A. I believe so. I'd have to refresh my recollection, 12 but I believe he did. 13 Q. And again, given the context of the interview and 14 the discussion that you had with him, all things considered, 15 it was your impression that Mr. Henson was in fact - 16 THE COURT: I don't see the relevance of that. 17 That's a conclusion on the part of this witness. Irrespective 18 of -- I mean, he may feel or believe something that's 19 unsupported by the evidence. And he may have evidence that is 20 unsupported by any document -- any statement. I don't know 21 what the relevance is of his belief. And you haven't made it 22 clear to me. 23 MR. SCHWARZ: Okay. The only way I can put it 24 another way, your Honor, and I don't mean to waste the Court's 25 time - 26 THE COURT: Thank you. 27 MR. SCHWARZ: I don't mean to waste the Court's 28 time, your Honor. The only thing I would add is that given 27 Amanda M. Fa an C.S.R. #8764 RPR 1 the fact that -- I don't mean to repeat myself, either. 2 THE COURT: Then don't, Counsel. Okay? Thank you. 3 MR. SCHWARZ: The indication then -- your Honor, I 4 withdraw the question. 5 THE COURT: Thank you. 6 MR. SCHWARZ: I withdraw the question. 7 Q. So Mr. Henson in fact, and to your recollection in 8 fact, claimed authorship in some form or fashion; is that your 9 testimony? 10 THE COURT: I don't think that's what the witness 11 said, but perhaps I'm incorrect. 12 Would you read back what the witness's testimony was 13 regarding the authentication by Mr. Henson? 14 (Record read.) 15 THE COURT: I believe that's what he said. I 16 believe so. 17 MR. SCHWARZ: Thank you, your Honor. 18 Q. During the discussion with respect to this posting, 19 and posting Number 1, too, did he say anything -- I mean, did 20 he suggest that these were not his postings? 21 A. No. 22 Q. Did he imply that anyone has forged his name to 23 these postings? 24 A. No. 25 MR. SCHWARZ: Thank you. No further questions with 26 respect to this. 27 THE COURT: Thank you. Counsel? 28 MR. HARR: Thank you, your Honor. 28 Amanda M. Fagan, C.S.R. #8764 RPR 1 RECROSS-EXAMINATION 2 BY MR. HARR: 3 Q. Deputy Rowe, I believe you authored a -- an incident 4 report dated July 20th, 2000 regarding your interview with 5 Mr. Henson; is that correct? 6 A. Without refreshing my recollection I believe it was 7 on the 19th, but I'd have to check. 8 Q. Okay. In that report, whatever the specific day 9 was, didn't you conclude with the words, "I am unable to 10 determine the validity of the internet documents provided to 11 me by Ken and Gavina?" Isn't that what was in your report? 12 A. I remember saying that. As far as the name, I 13 remember the name being different. But yes, that was the 14 reason why I forwarded it to the detectives, and I believe 15 Mr. Henson at that time. 16 Q. So was that indicating that you didn't know whether 17 these were actually Mr. Henson's postings or not? I mean, 18 isn't that what your report is saying? 19 A. Yes. I wanted -- as far as admitting them into 20 evidence - 21 THE COURT: Your answer is "yes"? 22 THE WITNESS: Yes. 23 THE COURT: Thank you. 24 Q. (By Mr. Harry: So your answer then is you were not 25 convinced that these were, in fact, Mr. Henson's postings? 26 Maybe I could withdraw my question for a moment and 27 give you what I believe is a true copy of that report. That 28 might be helpful. 29 Amanda M. Fagan, C.S.R. #8764 RPR 1 A. I do have a copy. 2 MR. HARR: Okay. Your Honor, may I direct the 3 witness's attention to page 3 of that report? 4 THE COURT: Yes. 5 Q. (By Mr. Harry: Please, Deputy Rowe, if you could go 6 to page 3 of that report. And on the side where the lines are 7 numbered, if you could please go down to 35. And the part 8 that I am referring to I believe says, "I am unable to 9 determine the validity of the internet documents provided to 10 me by Ken and Gavina." Isn't that saying that you were unsure 11 at that point that these were in fact Keith Henson's postings 12 that we're referring to here in court today? 13 A. Yes. 14 MR. HARR: Thank you. No further questions. 15 THE COURT: Counsel? 16 FURTHER REDIRECT EXAMINATION 17 BY MR. SCHWARZ: 18 Q. Deputy Rowe, when you wrote this, that "I am unable 19 to determine the validity of the internet documents," you are 20 talking about the actual documents themselves; but with 21 respect to what was actually written in them, the actual 22 saying now with respect to -- with respect to People's Exhibit 23 2, for example, now that this symbol "has to watch for eagles 24 as well as cruise missiles," the authorship, were you 25 convinced at that time that the defendant was the author of 26 that -- of that saying? 27 A. Yes. 28 MR. SCHWARZ: Thank you. No further questions. 30 Amanda M. Fagan, C.S.R. #8764 RPR 1 THE COURT: Anything? You don't have to. 2 MR. HARR: No, I know that, your Honor. 3 THE COURT: Just because -- okay. All right. 4 Thank you, Deputy. You're excused. You may step 5 down. 6 May the witness - 7 MR. SCHWARZ: Yes, your Honor. 8 THE COURT: All right. Call your next witness. 9 MR. SCHWARZ: Well, your Honor, is - 10 THE COURT: You want to introduce that? 11 MR. SCHWARZ: I would like to introduce this at this 12 time, because there is Deputy Greer we are going to do, and 13 then independently the documents from the copy from the 14 transcripts, your Honor. It would be helpful if we did it 15 perhaps in parts. 16 THE COURT: All right. Let me hear your argument. 17 MR. SCHWARZ: Your Honor, the burden of proof for 18 the authentication of a document is, in any case and 19 especially with respect to a criminal case under Section 115, 20 is preponderance of the evidence, your Honor. That means that 21 it doesn't have to -- that it doesn't have to be under People 22 versus Herrera, your Honor. We don't need perfect 23 authentication in order to get it in. The deputy, in fact, 24 testified that -- that Mr. Henson, that they had this 25 discussion with respect to the documents, Mr. Henson was able 26 to quote what was in the documents, and that they matched 27 perfectly with what the documents that he had in front of him. 28 So the content of the documents, your Honor, irrespective of 31 Amanda M. Fa an C.S.R. #8764 RPR 1 that, lends itself to authenticity. 2 The People don't have to prove that in fact -- in 3 fact, in the document -- with respect to document 1 Mr. Henson 4 said, "I posted it." So -- and Mr. Harr's cross-examination 5 about the validity of the document and his opinion with 6 respect to it, your Honor, well, if the Court wasn't allowed 7 -- if I wasn't allowed to ask him his impression, your Honor, 8 then his impression whether or not they were valid or not is 9 equally -- equally cuts both ways. 10 The fact is, Deputy Rowe in fact, when he read the 11 document, and Mr. Harr -- or I mean Mr. Henson was able to 12 quote from it and be able to do it. That should suffice, your 13 Honor, under the low standard of preponderance of the 14 evidence, your Honor. So I would ask that the Court accept 15 and move into evidence People's Exhibits 1 and 2. 16 THE COURT: All right. Mr. Harr? 17 MR. HARR: Your Honor, as far as the aspect of 18 authentication, I think Deputy Rowe testified that at least in 19 his mind when he was fresh on this issue, he wasn't sure when 20 he wrote his report, his report says he wasn't sure that these 21 were in fact Mr. Henson's documents. And today Deputy Rowe 22 testified that his recollection isn't really that clear, and 23 he was having to rely on this and rely on that, and we were 24 trying to get his impression and his sense. He really doesn't 25 have a clear vision of whether these were, in fact, 26 Mr. Henson's postings or not. Maybe they are or maybe they 27 aren't. But it's certainly an open question based on his 28 report at the time when he wasn't sure if these documents were 32 Amanda M. Fagan, C.S.R. #8764 RPR 1 in fact posted by Mr. Henson. 2 And again, there is an issue here, there are other 3 issues of redaction or whatever. In other words, just the 4 highlighted area, I imagine that the D.A. is not intending to 5 introduce just the highlighted area. And it's pretty clear 6 that Mr. Henson, there's no evidence that he posted the rest 7 of the stuff that's on that piece of paper. So I don't - 8 before I make a final statement on the authentication aspect 9 of it, and I haven't gotten into 352 yet, but what is he going 10 to do with the rest of the posting that's clearly not 11 Mr. Henson's that are on these documents? 12 THE COURT: You mean with respect to what? What are 13 you talking about, Counsel? 14 MR. HARR: On Exhibits 1 and 2, there's other 15 information on those two exhibits that were not posted by 16 Mr. Henson. 17 THE COURT: And those are? 18 MR. HARR: Okay. On Exhibit 1, the highlighted 19 areas to what Deputy Rowe testified, "Ahh, I love the smell of 20 gun powder drifting on the morning breeze," prior to that 21 somebody posted, "Scientology is a business and an unethical 22 business at that. It is run by dishonorable men and women, 23 and I will see it in ruins." There is no evidence that I 24 recall that Deputy Rowe provided to indicate that Mr. Henson 25 in fact posted that part of the -- of Exhibit 1. 26 So if we're just dealing with the issue of 27 authentication and not, you know, the time frame and this or 28 that, I would like to know what the People's intention is 33 Amanda M. Fagan, C.S.R. #8764 RPR 1 regarding this other portion of the document. Is it going to 2 be put in? Is this going to be considered a threat? Or are 3 we going to go really back and put this in perspective? These 4 are threads from long-standing conversations on a news group. 5 If we're going to put this part in, maybe we ought to put the 6 whole thread in to really put it in context, in answer to 7 that. I'd really like to know what the D.A.'s intention is 8 regarding the other information. 9 THE COURT: Let's find out. Counsel? 10 MR. SCHWARZ: Thank you, your Honor. 11 Getting back to the -- it sounds like Mr. Harr is 12 arguing that the People can't authenticate the information 13 that's not highlighted, or the relevant information. People 14 don't -- People would submit that the People don't have to 15 authenticate that portion because it's not admitted for the 16 truth of the matter asserted. It only puts it in context. 17 And with any other - 18 THE COURT: Then it's irrelevant; isn't it? 19 MR. SCHWARZ: Excuse me? 20 THE COURT: Is it not irrelevant? 21 MR. SCHWARZ: It is relevant because it puts the 22 conversation into context, your Honor. And it's not offered 23 to prove the truth of the matter asserted. It's just simply 24 to put the statement in context. Without the following 25 statement, your Honor, it can't be understood. And we do this 26 all the time in other documents where we -- where one person 27 will say something, and in order to do that we will allow 28 hearsay in to put it in context. 34 Amanda M. Fagan, C.S.R. #8764 RPR 1 For example, your Honor, we'll have a conversation, 2 you and I. And I might testify to what you say, and then 3 there will be a hearsay objection. But I'm not offering what 4 you say into evidence to prove the truth of the matter 5 asserted, only to put it in context. Only to put why I 6 responded in that way, your Honor. And that's simply for this 7 reason. So the People will submit they don't have to do that. 8 And with respect to these postings, Mr. Henson has 9 so much as -- has quoted verbatim what they are. So there 10 can't be any denial that, in fact, he wrote it or it's his 11 words. It just happens to be on a document. So does it meet 12 the preponderance of the evidence, your Honor? The People 13 would submit yes. 14 THE COURT: Mr. Harr? 15 MR. HARR: Thank you, your Honor. This is a 1995 16 posting. 17 THE COURT: Well, that's the -- it says that date. 18 The Court's not convinced that that is the date. There's been 19 no testimony to indicate yay or nay. 20 MR. HARK: And at the bottom, what I believe stands 21 out the most, it says "Keith Henson" in the middle of the 22 page. A person who might be a witness who might not have any 23 experience with the internet whatsoever, or even if they have 24 experience with the internet they have no experience with a 25 news group or threads or responses, although the - 26 Mr. Schwarz is indicating that it's offered just for this 27 particular posting. It makes it -- makes it look to a casual 28 observer, I believe, that Mr. Henson is saying that 35 Amanda M. Fagan, C.S.R. #8764 RPR 1 "Scientology is a business, unethical business," et cetera and 2 et cetera. And I think that that is inflammatory, and it's 3 misleading, and it's clearly 352 material. And I'm asking if 4 he is going to redact this or if he is going to put the whole 5 thread in where this comes down the whole chain. 6 MR. SCHWARZ: Your Honor, I object to this. This is 7 a question about authenticity of the documents. And in fact, 8 this entire argument is about the authenticity of the 9 documents, not whether or not and how it's going to be used 10 and what the relevance is or whatnot. The People are simply 11 trying to prove at this stage of the game, you know, whether 12 or not Mr. Henson in fact wrote it. And the People would 13 submit that he has. 14 MR. HARR: May I make a brief reply to that? 15 THE COURT: Brief. 16 MR. HARR: I thought Mr. Schwarz said he was moving 17 to introduce this into evidence. That just basically would 18 cut me off from any further ability to address these issues. 19 THE COURT: With respect to 1, the Court has no idea 20 what -- if this is -- if this is a document in its entirety, 21 if it went on -- I mean, there's no evidence as to when it was 22 posted, as to when this response, the last sentence by 23 Mr. Henson, was posted. If that was -- if indeed it was on 24 Sunday, August 13, 1995 at 7:15:47 General Mountain Time. The 25 Court has some problems with this document. I think if 26 Counsel, Defense Counsel will have an opportunity to 27 cross-examine -- let me think. Let me think about it for a 28 minute. Let me get on to 2. 36 Amanda M. Fagan, C.S.R. #8764 RPR 1 MR. HARR: Your Honor, can I be heard on that one 2 briefly? 3 THE COURT: Yes. 4 MR. HARR: Deputy Rowe's testimony was that the 5 parens with the asterisk in the middle of it referred to, I 6 believe, Mr. Miscavige, if I am pronouncing his name 7 correctly. And certainly Mr. Miscavige is not a possible 8 victim in this case, and I see that this really has no 9 relevance in this case whatsoever. He's not an alleged 10 victim. 11 THE COURT: But he gave it to the deputy, I think. 12 That he gave it to the deputy, I don't think it relevant, or 13 that he didn't give to the deputy. The deputy received it 14 from someone, said he received it from him. The question is 15 whether or not the victims will be able to testify that they 16 saw this and that they were concerned about it. 17 MR. HARR: Okay. We have the additional matter 18 above this particular posting as well. This is obviously a 19 response to something posted by somebody else, or at least 20 that's -- there's no indication that Mr. Henson actually 21 posted that particular part of it. 22 THE COURT: I think with respect to Number 2 Counsel 23 will be able to adequately point that out. It appears that 24 this document bears a date of July 9th, and the interview took 25 place shortly after that. I think in the context in which the 26 response is made is reasonable under the circumstances, and 27 the Court will permit -- will introduce -- allow the 28 introduction of Number 2. 37 Amanda M. Fa an C.S.R. #8764 RPR 1 With respect to Number 1, I don't think it's an easy 2 answer. And the Court has some reserve on it. Let me ponder 3 that. 4 MR. SCHWARZ: Your Honor, may I be heard? 5 THE COURT: Yes. 6 MR. SCHWARZ: With respect to the Court's concern. 7 THE COURT: Yeah. 8 MR. SCHWARZ: If the Court's concern is the date and 9 when it was pulled off, and the deputy didn't -- did, in fact, 10 testify, if the Court is -- if that's the Court's concern and 11 not necessarily what was written, the People didn't anticipate 12 that this would be the Court's concern with respect to when it 13 was pulled off the internet. But because the - 14 THE COURT: No, Counsel. I don't know when the 15 response was made. That's what the concern is. I don't know 16 when this response was made, whether it was made at any time 17 around August 13th, 1995, or whether it was made in July of 18 2000. And that's a five-year span. So I don't know -- I 19 mean, I think that it would be confusing to the jury to 20 introduce a document that was originally prepared in 1995, and 21 perhaps responded to in 1995, and taken off of the internet in 22 1995, and now introduced in 2000, or whether it's any 23 permeation of those particular facts. 24 MR. SCHWARZ: Well, the People would respectfully 25 submit, your Honor, that this is a -- the reason why -- it 26 sounds as though the Court is somewhat concerned about the 27 relevance. I think I understand if that's what the Court's 28 indicating. 38 Amanda M. Fagan, C.S.R. #8764 RPR 1 Your Honor, the relevant period of time that we're 2 talking about stems from 2000. That's the -- from the -- from 3 the complaint, your Honor, that's the period that the People 4 selected. However, Mr. Henson has been posting to the 5 Internet pretty regularly for a period of time. It's a 6 culmination, your Honor, that starts back in 1995. And it 7 starts -- the postings become more egregious, and the period 8 in context, your Honor, leads the victims to have a serious 9 fear that culminates in the year 2000. 10 THE COURT: Counsel, you're asking to introduce 11 People's 1? 12 MR. SCHWARZ: Yes. 13 THE COURT: You're not asking to introduce anything 14 prior to People's 1; am I correct? 15 MR. SCHWARZ: I am - 16 THE COURT: You're not asking to -- if you're not 17 asking to introduce any other evidence, let's talk about 1. 18 You have no other postings, do you, that you want to introduce 19 that will support allowing this document to be -- to be 20 authenticated or to bear some relevance on its authentication? 21 MR. SCHWARZ: No, your Honor, but - 22 THE COURT: So that's your choice; isn't it, 23 Counsel? Why are you making that argument? I'm not sure the 24 Court understands. 25 MR. SCHWARZ: Because as I indicated before, that 26 the Court is concerned with the age of the document - 27 THE COURT: Yes, it is mightily concerned with that. 28 MR. SCHWARZ: -- and how it bears on the actual - 39 Amanda M. Fagan, C.S.R. #8764 RPR 1 how it bears on the victims in the year 2000. And so that's, 2 the People would respectfully submit, your Honor, that I'm 3 simply informing the Court that how it bears on the -- the 4 Court's inquiring as to the People's case and how it's 5 relevant. And all we're talking about is authenticity. If 6 the Court, and I tried to explain -- I'm trying to explain 7 that in fact it's relevant in context to the other documents, 8 if for no other reason, your Honor. Because the Court's 9 concerned with the age. So that's the reason why the People 10 were trying to explain to the Court - 11 THE COURT: But you have no other evidence of that 12 other than this document and the one that's dated July, 2000; 13 is that correct? You're not offering into evidence any other 14 documents except the one that was -- that bears the date, and 15 the Court has no knowledge of whether this is accurate or not, 16 but the one that bears the date 1995 and the one that bears 17 the date of July 9th, 2000? 18 MR. SCHWARZ: Correct. 19 THE COURT: There's nothing in between that you've 20 shown. 21 MR. SCHWARZ: Your Honor, because we haven't moved 22 to -- we haven't moved to the other documents. 23 THE COURT: That's what I'm asking you, Counsel. 24 MR. SCHWARZ: Correct. And I'm indicating - 25 THE COURT: Are you going to move other documents 26 in? 27 MR. SCHWARZ: Yes. We're going to move 25 documents 28 in. 40 Amanda M. Fagan, C.S.R. #8764 RPR 1 THE COURT: Why didn't you say that, Counsel? 2 MR. SCHWARZ: Because -- I apologize to the Court 3 that I didn't understand - 4 THE COURT: Let me hold off on 1. I will allow 5 People's 2 in at this point. I am going to withhold a ruling 6 on 1 until such time as we've been satisfied as to the 7 authentication of the others. 8 Yes, sir? 9 MR. HARR: Your Honor, can I please ask a question? 10 If 1 is introduced, or allowed to be introduced into evidence, 11 I take it it's not going to be redacted? It's just going to 12 have the whole - 13 THE COURT: It will be taken in context. Counsel 14 will have ample opportunity to let the jury know that the only 15 document -- I mean the only item that the People are 16 introducing, it's only for the purpose of context, is the one 17 line from the defendant. Okay? 18 MR. HARR: Thank you, your Honor. 19 THE COURT: All right. 20 MR. SCHWARZ: Thank you, your Honor. If the Court 21 will take a look at Exhibits -- I've given the Court a master 22 list, your Honor. The People intend, for the Court's 23 edification, your Honor, to introduce 3 through 25. The Court 24 has a copy of the -- a certified copy, self-authenticating, 25 deposition of Keith Henson on October the 25th. That's 26 Exhibit Number 3, your Honor. 27 Exhibit Number 4 is a trial transcript involving 28 Mr. Henson against Religious Technologies Center, May 6th, 41 Amanda M. Fagan, C.S.R. #8764 RPR 1 1998. 2 And a deposition of Mr. Henson of July 13, 2000 - 3 if the Court will indulge me on one -- on how the Court -- or 4 the -- on how the People intend to -- unless the Court wants a 5 talking head. But for example, if the Court would review 6 Exhibit Number 6, your Honor. 7 MR. HARR: Maybe I'm missing something. Where are 8 we with this? Is 3 the big stuff? Big, thick folder? 9 MR. SCHWARZ: I think so, yes. 10 MR. HARR: A lot of this stuff I haven't seen 11 before. 12 MR. SCHWARZ: It's -- it only goes to the -- I gave 13 you the excerpts of just the certified copies of this. 14 THE COURT: All right, Counsel. On 6? 15 MR. SCHWARZ: On 6, your Honor. The way it works is 16 the posting dated July the 7th, 2000, which is in the October 17 25th, 2000 deposition. So if the Court will go to the October 18 25th, 2000 deposition and - 19 MR. HARR: I'm not -- I apologize, your Honor. I'm 20 not following this. I've got a master list of exhibits 21 numbered on one side, and then I have -- I'm really having a 22 hard time following this. 23 MR. SCHWARZ: And I'm trying to explain it for the 24 Court and for you. 25 THE COURT: There's two deposition transcripts. 26 MR. SCHWARZ: One is an exhibit. One is the 27 exhibit, your Honor, and one is the deposition transcript 28 itself. 42 Amanda M. Fa an C.S.R. #8764 RPR 1 THE COURT: Oh, okay. All right. 2 MR. SCHWARZ: So the deposition transcript, in the 3 deposition, deposition -- I'll start over. 4 People's Exhibit Number 6 is identical to the 5 deposition Exhibit Number 61 of October the 25th. So if the 6 Court will go to Exhibit 61. 7 THE COURT: Okay. 8 MR. SCHWARZ: It will notice that it is identical - 9 THE COURT: I will take Counsel's representation 10 that it is identical. The Court doesn't have at this time the 11 time to examine it. I assume Counsel - 12 MR. SCHWARZ: That's correct, your Honor. They're 13 identical. 14 MR. HARR: I still don't know where we are. I 15 haven't seen this big pile of paper, and I haven't seen this 16 deposition transcript before. 17 THE COURT: It's now 10:15, gentlemen. Let's take 18 our morning recess. Let's take about 15 to 20 minute recess, 19 come back about 10:30. 20 MR. SCHWARZ: Thank you, your Honor. 21 (Recess talken ) 22 THE COURT: All right, Counsel. Go ahead. 23 MR. SCHWARZ: Thank you, your Honor. I believe we 24 left off with trying to explain how the system works. We were 25 at People's Exhibit Number 6. And if the Court goes to - 26 THE COURT: Yes, you told me. 27 MR. SCHWARZ: Right. So you go to 61. 28 THE COURT: I did. 43 Amanda M. Fagan, C.S.R. #8764 RPR 1 MR. SCHWARZ: And that explains, and they're 2 identical. So then the Court would next go to page 599 of the 3 actual deposition, not the exhibit portion, your Honor, lines 4 7 through 23. And I'll be the talking head for the first one, 5 if the Court would indulge me. 6 THE COURT: Go ahead. 7 MR. SCHWARZ: So line 7 would be, "Question, okay, 8 fine." Exhibit 61, now we're referencing it. 9 "Without the context, I don't know. Well, let me 10 see. This is -- this was in the context of a 11 hypothetical discussion. Well, this 61 is a 12 thread. The rest of the thread would be necessary 13 to see what I meant here. All right. I can't 14 tell. If I'm reading this correctly, the part that 15 you have contributed to this, to this thread is, 16 'and a good topo map, t-o-p-o map, the approach is 17 clear from the south. "' 18 And that's in quotes. 19 "That's the part that you added in this discussion; 20 right? 21 "Right." 22 So Mr. Henson in fact -- and that's essentially how 23 it goes for every one with respect to the deposition 24 transcripts. Or the trial transcripts, your Honor. 25 THE COURT: Okay. So? 26 MR. SCHWARZ: They've been sufficient -- the People 27 would proffer these as sufficiently authenticated for purposes 28 of this trial, your Honor. 44 Amanda M. Fagan, C.S.R. #8764 RPR 1 THE COURT: Mr. Harr? 2 MR. HARR: Thank you, your Honor. 3 THE COURT: Briefly, please. 4 MR. HARR: The case had been filed for some time, 5 and then after certain discussions with the D.A.'s Office 6 apparently, and I don't have any firsthand information on 7 this, then at some point one of the Scientology attorneys took 8 the deposition after he was facing a criminal matter - 9 THE COURT: Wait a minute, Counsel. Let's talk 10 about Exhibit 6. That's all we're talking about. Tell me 11 what your objection is. 12 MR. HARR: I think it was taken in violation of 13 Mr. Henson's Fifth Amendment right to remain silent. 14 THE COURT: Who violated his rights? 15 MR. HARR: I believe that there was a conversation 16 between someone from the District Attorney's Office and the 17 Scientology to go out and verify -- try to authenticate 18 certain documents, then they bring it right back to 19 Mr. Schwarz, and he gives it to me. I believe they were in 20 essence an agent for the District Attorney's Office. And 21 although Mr. Henson had an attorney, there was no reason for 22 that attorney to think that he had a criminal situation going, 23 as far as I know. I certainly wasn't notified that this 24 deposition was going to be taken. I was certainly notified 25 after the fact. That would be one. 26 Secondly, as an example, Number 61, Mr. Henson went 27 on to say later as to that particular document that he didn't 28 know. And I'd like to refer the Court to a couple of places. 45 Amanda M. Fagan, C.S.R. #8764 RPR 1 One would be page 593. And there were certain qualifications 2 that were understood before these documents were gone through 3 by Mr. -- through Mr. Rosen's questioning. And on line 20. 4 "Okay, all right. Next I want to go through a 5 series of postings of yours. And we've been 6 through this before. I'm going to ask as to each 7 one whether they are authentic in what it purports 8 to be, and that you posted with the same 9 limitations that we had for several years, which is 10 in terms of the header and stuff like that. You 11 cannot confirm that they are accurate or not." 12 And then flipping to 61 then, for, say, going beyond 13 599, going over a long discourse that covers pages, getting 14 over to page 602, the bottom of 602, top of 603. Now we're 15 still on Exhibit 61. There's been a real digression in this 16 testimony - 17 THE COURT: What page are we? 18 MR. HARR: 603. 19 MR. SCHWARZ: What lines, Counsel? 20 MR. HARR: Line 1, please. 21 "The Witness: I don't know actually -- no. What 22 date is that? July 7? I'm not sure. Okay. I 23 really don't know. I would have to go look into my 24 files. That may be an entirely bogus posting." 25 Mr. Henson did not authenticate -- this is an 26 example of how this goes. 27 THE COURT: That's what I want you to do, Counsel. 28 All right. Anything? 46 Amanda M. Fagan, C.S.R. #8764 RPR 1 MR. SCHWARZ: Yes, your Honor. I think Counsel -- I 2 would refer the Court to line 6 on page 594. Counsel 3 conveniently left off the last portion of it, saying, "My only 4 question is as to each one of these exhibits, is this the text 5 as deponents of the header, something that you can -- you can 6 tell me what it is posted to?" So what -- what Mr. Rosen is 7 referring to, your Honor, the header is the information - 8 THE COURT: I understand what the header is. 9 MR. SCHWARZ: So essentially what Mr. Henson is 10 doing is he quotes from what it is. "A good topo map, the 11 approach is clear from the south." Your Honor, so what 12 Mr. Henson has done in these postings has authenticated the 13 text, not necessarily the header itself. 14 THE COURT: Would you explain the statement that he 15 makes on -- at line 5 on page 603? 16 MR. SCHWARZ: "I really don't know, I would have to 17 look into my files." This is referring - 18 THE COURT: Why don't you finish the rest of it, 19 Counsel? "That may be an entirely bogus posting." Is that an 20 authentication of a statement? 21 MR. SCHWARZ: Your Honor, I would refer the Court 22 back to line -- or page 599, 7 to 23, your Honor. 23 THE COURT: 599, line what? 24 MR. SCHWARZ: 7 through 23. Mr. -- at line 17 25 specifically. 26 "If I'm reading this correctly, the part that you've 27 contributed to this, to this threat, 'and a good 28 topo map, the approach is clear from the south."' 47 Amanda M. Fagan, C.S.R. #8764 RPR 1 That is a direct quote from the very -- or for the 2 -- from line -- or People's Exhibit Number 6. 3 "That's the part that you added in this discussion; 4 right? 5 "Right." 6 So what Mr. Henson is doing is, he is unable to -- I 7 believe what he is doing is, he is unable to authenticate the 8 document with respect to the headers and perhaps whatever else 9 is in this document, the numbers and whatever. But with 10 respect to the actual text, "A good topo map, the approach is 11 clear from the south," a quote, he's saying, "This is what 12 you've contributed to; right?" "Right." He's added onto it, 13 your Honor. So that's how he does it. So whether or not it's' 14 on a -- on this particular paper or not, your Honor, 15 Mr. Henson is playing games with Mr. Rosen. It is, in fact, 16 his words. 17 THE COURT: Let me respond to something Mr. Harr 18 said, and then I'll make my ruling. 19 The protection against self-incrimination does not 20 exist between two individuals, between two parties. It exists 21 only as a protection against the government. Therefore, any 22 statements that the -- any questions that the attorney may 23 have asked in any other context would not be protected. In 24 order for it to be protected, Counsel would have to show that 25 the attorney was acting for the District Attorney. And the 26 mere naked allegation that such occurred is insufficient. 27 With respect - 28 MR. HARR: Your Honor, may I reply to that? 48 Amanda M. Fagan, C.S.R. #8764 RPR 1 THE COURT: No, you may not. 2 With respect to Exhibit 61, the -- the line would be 3 -- the only acceptable portion of that exhibit would be the 4 statement, "And a good topo map, period. The approach is 5 clear from the south." There would be nothing else that would 6 be permitted, because nothing else has been authenticated. 7 Let's move on to the next one. 8 MR. HARR: Your Honor, may I please discuss that? 9 Mr. Schwarz was able, after you made a ruling, to apply some 10 additional persuasive thought to one of the issues this 11 morning, and I was hoping that maybe I could on this one. 12 THE COURT: Briefly. 13 MR. HARR: Thank you, your Honor. 14 THE COURT: And I don't know why I'm doing it. 15 MR. HARR: Thank you, your Honor. 16 First of all, that it's a bare allegation about the 17 Fifth Amendment, the other case is a bankruptcy case. The 18 fact that there is a topo map and an approach to the south 19 would have nothing to do with a bankruptcy case. They in fact 20 are an agent of the District Attorney. 21 THE COURT: Then it would be irrelevant to the 22 bankruptcy; wouldn't it, Counsel? It's not irrelevant with 23 respect to any statement that the defendant made. That is - 24 MR. HARR: Not from that standpoint, I agree, your 25 Honor. But that's my point about agency. If they weren't the I 26 agent of the District Attorney, why would they be out there 27 asking about topo maps in a bankruptcy case? 28 THE COURT: I don't know, Counsel. But you haven't 49 Amanda M. Fagan, C.S.R. #8764 RPR 1 made it clear that that was their avowed purpose. You've 2 stated that that is your belief, and I believe you believe it. 3 But you haven't made any -- you haven't offered any evidence 4 that that was the case. And without evidence, it is just a 5 naked assertion. 6 MR. HARR: All right. I talked with the District 7 Attorney about the issue of authentication, and I mentioned to 8 him that I thought he had serious problems with authenticating 9 certain documents, including the ones in issue here in this 10 deposition. Within a few days - 11 THE COURT: Are you testifying now, Counsel? 12 MR. HARR: Sounds like it, doesn't it, your Honor? 13 THE COURT: Sure does. 14 MR. HARR: I guess I'd have to stop on that one. 15 THE COURT: Okay. Thank you. 16 MR. HARR: It's not uncommon for a witness upon 17 reflection to change his testimony. And it's I believe not 18 accurate to say that a qualifications on a header is the same 19 thing as saying that a posting is entirely bogus. On 20 reflection, after Mr. Henson considered the fact at hand, he 21 stated on page 603, "That may be an entirely bogus posting." 22 That's not an authentication, your Honor, I would argue, 23 because he qualified his prior testimony. 24 THE COURT: Counsel, I've indicated the Court 25 intends to redact everything except the last statement, "And a 26 good topo map. The approach is clear from the south." That's 27 all the Court will permit in on Number 6. Let's go on, 28 please. 50 Amanda M. Fagan, C.S.R. #8764 RPR