Henson Hemet Trial Transcript (to pg 50]

From: hkhenson@home.com (Keith Henson)
Subject: Henson Hemet Trial Transcript (to pg 50]
Date: Mon, 10 Sep 2001 15:27:34 GMT
Organization: Temple of At'L'An
Message-ID: <3b9cdafc.77048993@news2.lightlink.com>

On Mon, 10 Sep 2001 13:45:19 GMT, hkhenson@home.com (Keith Henson) wrote: (to page 100) 1 MR. SCHWARZ: May the People inquire, does the Court, 2 want to go through each separate posting together? 3 THE COURT: I think we'd best. 4 MR. SCHWARZ: Okay. Thank you, your Honor. 5 Number 7, your Honor. 6 THE COURT: Okay. 7 MR. SCHWARZ: This would be deposition Exhibit 8 Number 65. 9 THE COURT: Okay. 10 MR. SCHWARZ: The Court will note it is identical. 11 THE COURT: Well, the Court can't note that. I will 12 accept somebody's representation. Mr. Harr, have you read the 13 documents? Have you compared them? 14 MR. HARR: I haven't compared what he brought here 15 today, your Honor. 16 THE COURT: Do you accept the District Attorney's 17 representation that one is a copy of the other? 18 MR. HARR: I will for purposes of today, your Honor. 19 And I will doublecheck them later and reserve the right to 20 object. But as far as I know they are. 21 MR. SCHWARZ: Okay. Your Honor, then can we skip 22 for purposes of further authentication on the other documents, 23 can I skip the fact that they're identical? Is that the 24 Court's ruling? 25 THE COURT: Yes. 26 MR. SCHWARZ: Okay. Then since it's identical to 27 Exhibit Number 65, the People would direct the Court to page 28 605 of the October 25th, 2000 deposition, lines 3, through 51 Amanda M. Fagan, C.S.R. #8764 RPR 1 606, line 1. Does the Court wish me to read? 2 THE COURT: No, I can read it. 3 MR. SCHWARZ: Thank you, your Honor. 4 THE COURT: Okay. 5 MR. SCHWARZ: So the Court will take notice that "I 6 think the contents," this is line 25 - 7 THE COURT: I've read it, Counsel. 8 MR. SCHWARZ: So the People respectfully offer 9 People's Exhibit Number 7 and proffer it. 10 THE COURT: Mr. Harr, any objection? 11 MR. HARR: Yes, your Honor. One way to 12 characterize, I think, the approach in this examination is a 13 fire hose. You know, it's click, it's rapid fire, it's not 14 really -- the context seems to indicate that Mr. Henson was 15 trying to think, and trying to answer questions. And he keeps 16 getting cut off, and keeps getting cut off, because they're 17 looking for a certain answer to authentication. You see all 18 the lines, dot, dot, where he's being cut off. He starts at 19 line 12 and 13, page 605, "I don't think this one is right." 20 THE COURT: Okay. 21 MR. HARR: Although - 22 THE COURT: I've read that. 23 MR. HARR: "I don't think -- I think the date is 24 wrong, but I think the contents of it looks fairly good. At 25 least, in fact -- again it's missing material from --I' and 26 then he gets cut off again. And then it says, "Yeah, I 27 understand in term of the date we've gone over this --" he 28 doesn't let him finish it. I don't think that is an 52 Amanda M. Fagan, C.S.R. #8764 RPR 1 authentication. He's getting cut off. "It's missing 2 material," and he says, "Okay, let's go to 66." I don't think 3 that's an authentication, your Honor. 4 THE COURT: The objection will be overruled. 7 5 would be received. 6 Go ahead, Counsel. 7 MR. SCHWARZ: Thank you, your Honor. With respect 8 to Number 8, People would refer the Court to the deposition 9 transcript, page 606, line 12 through 19. For the record, the 10 deposition exhibit would be 67. 11 THE COURT: Okay. 12 MR. SCHWARZ: And I'll allow some time for the Court 13 to review it. 14 THE COURT: All right. Anything? 15 MR. SCHWARZ: No, your Honor. The People submit. 16 THE COURT: Mr. Harr? 17 MR. HARR: Again, it's -- you know, Mr. Henson 18 indicates, line 18, "I don't see anything obviously wrong with 19 this," and, "Okay, just give me a second." Okay. So he 20 doesn't see anything obviously wrong. I probably won't object 21 to that one. 22 THE COURT: Received as marked. 23 MR. SCHWARZ: Thank you, your Honor. 24 MR. HARR: With the understanding that, you know, 25 not withdrawing the Fifth Amendment thing. I know it's 26 already been ruled on, I'm not arguing about that, but - 27 THE COURT: Thank you, Counsel. 28 MR. SCHWARZ: People respectfully move on to Exhibit, 53 Amamda M. Faaan. C.S.R. #8764. RPR 1 Number 9. 2 THE COURT: Okay. 3 MR. SCHWARZ: For the record it is Exhibit Number - 4 deposition Exhibit Number 69. People would direct the Court 5 to page 607, lines 3 through 7, your Honor. 6 THE COURT: All right. 7 MR. SCHWARZ: People submit on the record, your 8 Honor. 9 THE COURT: Any objection? 10 MR. HARR: I would object to that on the basis that 11 it's qualified. He says, "I think," "I think it is." That's 12 less than -- that's less than 50 -- "I think it is"? 13 THE COURT: An arousing authentication. I would 14 agree that it's less than arousing. An arousing 15 authentication. However, it's sufficient to be received. 16 Item 9 will be received as well. 17 MR. SCHWARZ: Thank you, your Honor. People 18 respectfully direct the Court's attention to People's Exhibit 19 Number 10. 20 THE COURT: Uh-huh. 21 MR. SCHWARZ: This would be referenced in the 22 October 25th, 2000 deposition Exhibit Number 78. 23 THE COURT: Okay. What pages? 24 MR. SCHWARZ: Pages 613, your Honor, lines 22, 25 through 614, line number 1. 26 THE COURT: Okay. 27 MR. SCHWARZ: People submit on the record, your 28 Honor. 54 Amanda M. Fagan, C.S.R. #8764 RPR 1 THE COURT: Any objection, Counsel? 2 MR. HARR: No, your Honor. 3 THE COURT: Exhibit 10 is admitted. 4 Go ahead, Counsel. 5 MR. SCHWARZ: Your Honor, at this time we are no 6 longer in the deposition transcript, but rather in a trial 7 transcript from May 6th, 1998. 8 THE COURT: Says May 7, Counsel. 9 MR. SCHWARZ: My apologies, your Honor. It should 10 be May 7. 11 THE COURT: Okay. 12 MR. SCHWARZ: Can I help Counsel for a moment, your 13 Honor? 14 THE COURT: Yes. Not too much. 15 MR. SCHWARZ: With respect to People's Exhibit 16 Number 11, your Honor, it would be Exhibits 10 dash 26 for the 17 purposes of the trial of May 7, 1998. And the relevant -- the 18 relevant testimony, your Honor, the People would direct the 19 Court to page 386, line 11, through 387, line 3. 20 THE COURT: Say that again, the last one. 21 MR. SCHWARZ: I apologize, your Honor. Page 386, 22 line 11, through 387, line 3. 23 THE COURT: Okay. Okay. 24 MR. SCHWARZ: These, your Honor, you'll note that - 25 well, People would submit, your Honor. 26 THE COURT: Mr. Harr, any objection? 27 MR. HARR: I don't have any recollection that I've 28 ever seen any of this before. But I believe we're going to 55 Amanda M. Fa an C.S.R. #8764 RPR 1 10-26 on here, that's the exhibit number? 2 MR. SCHWARZ: 10-26, that's correct. 3 THE COURT: Any objection? 4 MR. HARR: I apologize for going slow, your Honor. 5 I don't recall seeing this part of it. That was 387 -- 386, 6 line what? 3? 7 MR. SCHWARZ: Line 11. 8 MR. HARR: To 387? 9 MR. SCHWARZ: Line 3. 10 MR. HARR: Thank you. 11 Your Honor, I don't see anything in the record that 12 indicates Mr. Henson authenticated this document. It seems 13 his attorney at the time didn't have any objection to its 14 admission, but I don't see anything in there that Mr. Henson 15 actually authenticated it. 16 THE COURT: Counsel? 17 MR. SCHWARZ: Your Honor, it's an admission with 18 respect to authenticity for purposes of authenticity, your 19 Honor. 20 THE COURT: What were they admitted for, Counsel? 21 MR. SCHWARZ: They were admitted in a trial, your 22 Honor, a copywrite trial. And they -- well, pretty much the 23 same type of thing, your Honor. They -- Mr. Henson wrote 24 these particular postings, and they were admitted in a trial. 25 And so it's my understanding, your Honor, that both Counsels 26 at that particular meeting agreed to these documents, and they 27 were submitted to the Court, and they were offered and 28 accepted into evidence, your Honor. It's an admission for 56 Amanda M. Fagan, C.S.R. #8764 RPR 1 purposes of authenticity. 2 The People would submit on those comments. Thank 3 you, your Honor. 4 THE COURT: I don't know that that would qualify it 5 as an admission. 6 MR. HARR: This is also the same issue with, you 7 know, this is a '96 - 8 THE COURT: With the rest of them, I understand. 9 All of those that are taken -- that are included in that 10 alleged admission. And on pages 386 through 387, let me take 11 a look at that a little more carefully. And I'll make my 12 ruling before the end of the day. However, let's move on so 13 we can -- let's move on past Exhibit 15 -- no, I guess - 14 MR. SCHWARZ: We're still on, your Honor, 12. 15 THE COURT: 12 is in the same - 16 MR. SCHWARZ: Yes, you're -- so it would be 13. 17 THE COURT: 13. Let's move to 13. 18 MR. SCHWARZ: The People would direct the Court to 19 -- at this point, your Honor, we are now in -- I don't know 20 why this is out of order. My apologies to the Court. 21 THE COURT: Number 13; right? 22 MR. SCHWARZ: Number 13, but we're back to the 23 October 25th - 24 THE COURT: Okay. 25 MR. SCHWARZ: -- deposition. Line -- or page 598, 26 lines - 27 THE COURT: I've got it, Counsel. I mean, I've got 28 the cite. I just can't find the page. Just one moment. 57 Amanda M. Fa Ian, C.S.R. #8764 RPR 1 All right. 2 MR. SCHWARZ: People submit, your Honor. 3 THE COURT: Mr. Harr? 4 MR. HARR: Yes, your Honor. From what I gather from 5 the transcript that I read there, the People are not trying to 6 offer the last two lines on that posting? 7 THE COURT: That's what I understand. Is that 8 correct, Counsel? 9 MR. SCHWARZ: Your Honor, again, this goes back to 10 placing things in context, your Honor. 11 THE COURT: Something after? That doesn't place 12 anything in context, Counsel. 13 MR. SCHWARZ: Okay. 14 THE COURT: That will be redacted. The last lines. 15 MR. HARR: Other than that, no objection. 16 THE COURT: Let's see. I think it would be 17 beginning with "p.s."; is that correct? 18 MR. SCHWARZ: "P.S.S.", your Honor. 19 THE COURT: From the words "p.s." through the 20 balance of the page it is redacted. Otherwise it will be 21 received as People's 13. 22 MR. SCHWARZ: Excuse me, your Honor. May I -- can 23 the Court -- I think the Court means to say "P.S.S.", your 24 Honor, because the -- not that I am presuming -- I'm not 25 presuming anything. However, the "p.s." is actually what 26 Mr. Henson said. 27 THE COURT: Oh, that's correct. Yes. So the last 28 -- just the last line. I apologize, Counsel. 58 Amanda M. Fagan, C.S.R. #8764 RPR 1 MR. SCHWARZ: Thank you, your Honor. 2 THE COURT: All right. Number 15. 3 MR. SCHWARZ: This would be the July 13, 2000 4 deposition transcript. This would be 5. With respect to 14, 5 your Honor, People's Exhibit 14. 6 THE COURT: Do I have the July transcript? 7 MR. SCHWARZ: It would be - 8 THE COURT: I have May 7, 1998 transcript. 9 MR. SCHWARZ: It would be Number 5, your Honor, 10 People's 5. It's been previously marked as People's Exhibit 11 Number 5. It should be big and thick. 12 THE COURT: July 13, right? Okay. Go ahead. 13 MR. SCHWARZ: Thank you, your Honor. People would 14 direct the Court to page 486, line 7, through 487, line 10. 15 THE COURT: I got it. 16 Well, okay. Go ahead. 17 MR. SCHWARZ: Counsel is asking me a question, your 18 Honor, I apologize. 19 MR. HARR: I am not able to find what exhibit we're 20 referring to. Maybe I dug too deep here. 21 THE COURT: It's 14. 22 MR. SCHWARZ: We're on 14. 23 MR. HARR: Okay. I've got the, I believe what is 24 the transcript here. I went to 487, 486. Okay. But I don't 25 see the actual document that it refers to. 26 MR. SCHWARZ: Exhibit Number 16. 27 MR. HARR: Okay. And these are numbered, like - 28 okay. Exhibits. Number 16? 59 Amanda M. Fagan, C. S. R . #8764 RPR 1 MR. SCHWARZ: That's correct. 2 MR. HARR: This refers me to Exhibit 16. I have 3 something marked 16 here, and I'm hoping that is the document. 4 You're saying there was a series; can you please point out to 5 me what series you're discussing? 6 Are you seeing six documents? Six pages? 7 MR. SCHWARZ: Yes. We're looking at 2 and 3, is the 8 only thing that's relevant. That's the only thing we're 9 concerned about. 10 MR. HARR: These two? 11 MR. SCHWARZ: Yes. 12 MR. HARR: These two documents? 13 MR. SCHWARZ: Yes. 14 People would submit, your Honor. 15 THE COURT: Mr. Harr? 16 MR. HARR: I'm sorry, your Honor, I was trying to - 17 I haven't really read these - 18 THE COURT: Take your time. 19 MR. HARR: I'll try to move it out here pretty 20 quickly. 21 Your Honor, I've had time to read that. Thank you. 22 I don't -- I must be missing something. I don't see that 23 these particular documents are referred to. I don't see where 24 the punch line is. I see that they start talking about 16, 25 and I see that they end up on a page that has something to do 26 with their agreeing that something is okay. But I missed 27 where 2 and 3 factored in there. I didn't see any -- anything 28 to indicate that that's -- that the defendant authenticated 60 Amanda M. Fagan, C.S.R. #8764 RPR 1 that. I must be missing something. 486 and 487. And I read 2 to 496. 3 THE COURT: The problem the Court has, Mr. Schwarz, 4 is I don't -- I don't see that there's ---there isn't -- only 5 equivocation on the part of Mr. Henson. That he only 6 equivocates as to the possibility that he prepared this 7 document. That's the concern the Court has. Maybe the 8 Court's misreading. And I would appreciate both Counsel 9 informing the Court as to whether or not it is correct in that 10 -- in its reading. 11 MR. SCHWARZ: Apparently from 486, your Honor, 12 Mr. Rosen hands Mr. Henson - 13 THE COURT: I got that part. 14 MR. SCHWARZ: Got that part. And then it says -- it 15 says, "-- whether or not these are authentic in the sense that 16 they are true copies of the postings you made? Right?" So 17 then you go to 496, 2 through 6, because this is a series. 18 They're talking about -- there is a series of postings, your 19 Honor, in Exhibit 16. There's not just the one posting. 20 There's a bunch of them. The only one that matters to the 21 People is the one that's submitted as Exhibit Number 14. Then 22 you go to lines 2 through 6 - 23 THE COURT: Well, I understand that, Counsel. Go 24 ahead. Just finish. 25 MR. SCHWARZ: Well, what's happening is Mr. Rosen, 26 through -- unless the Court wants to, we can read every one of 27 the pages. The People simply was trying to demonstrate where 28 it was going. Number -- Exhibit 16 has multiple postings, 61 Amanda M. Fagan, C.S.R. #8764 RPR 1 your Honor. One of them is the one that is 14 for the People. 2 As they're going along, he's told them the exact same thing 3 before. "It's not the header, it's not anything else, we want 4 to know whether or not the words are yours," and then he flips 5 over and he says, "Okay, the next page." So we can actually 6 go through the postings together or the actual -- the way it 7 is in the court, and you can actually physically see the next 8 one. This one is the next one, the next page. 9 "This again is quoting you earlier; right? 10 "Yeah. 11 "You haven't added anything to this; right? 12 "No. 13 "Okay, next page." 14 So that's what -- that's what is going on. So 15 what's on the record is, Number 16, all of these postings, and 16 Mr. Rosen's handing them to him and showing them to Mr. Henson 17 saying, "Nothing has been added; correct?" "No, nothing has 18 been added." "Let's go to the next page." 19 And if the Court wants to, we can physically go 20 through all of Number 16 and track it to demonstrate, in fact, 21 that Mr. Henson has -- was shown this one, because it's in the 22 Court's order. There's in the -- it's obviously attached to 23 the deposition. And then it will track exactly. So when we 24 get to that line it will show that Mr. Henson was shown this 25 copy and he authenticated it properly, your Honor. 26 THE COURT: Mr. Harr? Quickly. 27 MR. HARR: The two pages that I started with, 486, 28 line 7, through 487, line 10, I don't see anything that refers 62 Amanda M. Fagan, C.S.R. #8764 RPR 1 to these two specific documents. And then we jump - 2 THE COURT: Well, he can introduce all of 16 if you 3 want him to. 4 MR. HARR: Well, there's a - 5 THE COURT: You want to satisfy yourself over the 6 lunch recess that these two pages are extrapolated from 7 Exhibit 16? 8 MR. HARR: I believe that it appears that they were 9 probably -- that's not my only problem, your Honor. In 10 essence, my problem is that there is about a nine-page jump 11 here, and then we start with this is again, "Quoting your 12 earlier one," and it doesn't say what the one is, and then, 13 "Haven't added anything to this; right?" "No." And then we 14 go "this," we're using a lot of pronouns here that aren't 15 really referring to a specific item, and that's my concern. 16 THE COURT: Okay. Anything else? 17 MR. SCHWARZ: No, your Honor, just to - 18 THE COURT: I didn't ask you, I asked him. 19 MR. SCHWARZ: I'm sorry, I thought you pointed to 20 me, your Honor. 21 THE COURT: Anything else? 22 MR. HARR: No, I don't see anything else that says 23 - 24 THE COURT: Mr. Schwarz, submitted? 25 MR. SCHWARZ: Submitted, your Honor. 26 THE COURT: Matter will be received. Item 14 will 27 be received in this matter. 28 MR. SCHWARZ: Thank you, your Honor. 63 Amanda M. Fa an C.S.R. #8764 RPR 1 MR. SCHWARZ: People, with respect to People's 2 Exhibit Number 15, we're still in the July 13th - 3 THE COURT: Page 519? 4 MR. SCHWARZ: Page - 5 THE COURT: 503? 6 MR. SCHWARZ: Page 503, line 12. 7 THE COURT: Line 12 through 519 - 8 MR. SCHWARZ: 15 through 19, and 520, 5 through 21, 9 your Honor. 10 THE COURT: Counsel, is there any relevance to some 11 of this stuff that the Court is reading? It looks totally 12 irrelevant, and argumentative, and probably facetious, also. 13 MR. SCHWARZ: Well, your Honor, at this time the 14 People would respectfully remind the Court that at this point 15 we're just talking about authentication - 16 THE COURT: I know, that's what I'm saying. I don't 17 see that any of this which bears on authentication. Did you 18 include it just so that the Court would be able to do this in 19 context, or is there something -- there's nothing about the 20 authentication between 503 so far and 510. 21 MR. SCHWARZ: No, that's in context, your Honor. 22 That's in context. The main authentication portion of it 23 would be page 520, your Honor. And the People would 24 respectfully ask the Court to look at the document and talk 25 about the colloquy that was going -- that they were talking 26 about. And the Court will notice that it is exactly what the 27 content of the posting is. 28 THE COURT: All right, Counsel. Anything? 64 Amanda M. Fagan, C.S.R. #8764 RPR 1 MR. SCHWARZ: Submit, your Honor. 2 THE COURT: Mr. Harr? 3 MR. HARR: Thank you, your Honor. I'm reading on 4 page 519 at line 19 and where it says, "Is it accurate," 5 assuming we're referring to this particular document, which it 6 looks like we are, but I don't have any clear indication. 7 Again, this is a multi-page exhibit which I don't have any 8 clear reference to this particular page. Additionally, it 9 says, "Is it authentic?" The answer seems to be "Probably." 10 And, "Is it accurate?" "Ha ha, no, I don't know -- it's not, 11 no." So that's a qualification. 12 So I need to try to go to 520. Then apparently here 13 I have -- they get into some specifics on this particular 14 document. "I have ways of cashing checks which I don't think 15 have ever resulted in who was contributing getting back to 16 Scientology." I guess if that's in there, I guess that's - 17 seems to be authenticated. 18 THE COURT: Okay. 19 MR. HARR: Other than that, I don't see where 20 there's even any information in here that pertains to that. 21 THE COURT: Anything else, Counsel? Be received as 22 marked. 23 MR. SCHWARZ: Number 16, your Honor, People's 24 Exhibit Number 16. 25 THE COURT: Okay. 26 MR. SCHWARZ: This is -- goes back to the October 27 the 25th, 2000 deposition at page 612, lines 5 through 6. 28 THE COURT: That would be number 75? 65 Amanda M. Fa an C.S.R. #8764 RPR 1 MR. SCHWARZ: Exactly. Or actually, your Honor, it 2 would be deposition Exhibit Number 74, your Honor. 3 THE COURT: Starts on 612? 4 MR. SCHWARZ: 612, your Honor. 5 THE COURT: Line 6. Which is referring to Exhibit 6 16? 7 MR. SCHWARZ: I apologize, your Honor. What is the 8 Court's inquiry? 9 THE COURT: It says Exhibit 74, People's Exhibit 3 10 at 612, lines 5 and 6. But lines 5 and 6 says, "Oh, wait a 11 minute. I fired ammunition which is well over 40 years old. 12 That could be true." I don't understand how that is an 13 introduction for 74. 14 MR. SCHWARZ: Could the Court permit me a few 15 minutes? 16 THE COURT: Well, we've got another witness. Let's 17 take this one up after lunch. 18 MR. SCHWARZ: Okay. 19 THE COURT: And then we've got one more -- oh, 20 that's right, you have Mr. Greer? 21 MR. SCHWARZ: That's correct, your Honor. 22 THE COURT: Okay. Let's get him in here. 23 THE CLERK: Sir, I need you to raise your right 24 hand, please. 25 Do you solemnly state that the testimony you are 26 about to give in the case now pending before this Court shall 27 be the truth, the whole truth, and nothing but the truth, so 28 help you God? 66 Amanda M. Fagan, C.S.R. #8764 RPR 1 THE WITNESS: I do. 2 THE CLERK: Please be seated, and state your name 3 and spell it for the record. 4 THE WITNESS: Anthony, A-n-t-h-o-n-y, Greer, 5 G-r-e-e-r. 6 THE COURT: All right, Counsel. 7 MR. SCHWARZ: Thank you, your Honor. Hopefully this 8 will be a little shorter. 9 THE COURT: Well, it couldn't be any longer. 10 MR. SCHWARZ: It would be hard, your Honor. 11 I'm going to do this your Honor, instead of doing it 12 on the ELMO I'm just going to approach the witness if that's 13 okay? 14 THE COURT: Thank you. 15 MR. SCHWARZ: May I approach, your Honor? 16 THE COURT: Yes. 17 DIRECT EXAMINATION 18 BY MR. SCHWARZ: 19 Q. Before we get started, Detective Greer, how are you 20 employed? 21 A. I'm a Detective with the Riverside County Sheriff's 22 Department assigned to the Hemet Station. 23 Q. And how long have you been a sworn peace officer in 24 the state of California? 25 A. Twenty years. 26 Q. And in those 20 years did you receive any training 27 with respect to interviewing people, and taking down notes, 28 and writing reports? 67 Amanda M. Fagan, C.S.R. #8764 RPR 1 A. Yes. 2 Q. Can you please describe briefly just some of the - 3 where you did that training at? 4 A. I did it in the Sheriff's Academy, the Field 5 Training Program, and just through writing reports. 6 Q. And in your 20 years can you give just a rough 7 estimate of how many times you've interviewed somebody and 8 written a report? 9 A. Hundreds of thousands. 10 Q. And have you ever done an investigation with respect 11 to documents? 12 A. Yes. 13 Q. Such as maybe a bank case or something to that 14 nature? 15 A. Yes. 16 Q. Okay. Now, I've previously handed you what's been 17 previously marked as People's Exhibits 17 through 25. Can you 18 take a brief moment and look through those documents? And 19 indicate to the Court when you're done whether or not you 20 recognize them. 21 A. Okay. 22 Q. Do you recognize what they are? 23 A. Yes. They're internet postings. 24 Q. And who was listed as the author of these postings? 25 A. Keith Henson. 26 Q. Did you have an opportunity to interview Mr. Henson? 27 A. Yes, I did. 28 Q. And when was that? 68 Amanda M. Fagan, C.S.R. #8764 RPR 1 A. I don't recall the exact date. I'd have to look at 2 my report. 3 Q. Would it refresh your recollection to look at your 4 report? 5 A. Yes. 6 MR. SCHWARZ: With the Court's permission? 7 THE COURT: Sure. 8 MR. HARR: Which report are we talking about? 9 There's more than one report. 10 MR. SCHWARZ: Detective Greer's report. 11 MR. HARR: He has two reports. Which one? 12 MR. SCHWARZ: It's just to refresh his recollection, 13 it's one of two. 14 MR. HARR: Is it the August 8th report or August 15 10th report? There are two reports. 16 THE WITNESS: Yes, the August 8th report. 17 MR. HARR: Thank you. 18 THE WITNESS: July 17 when I interviewed Mr. Henson. 19 Q. (By Mr. Schwarz): How did that interview come 20 about, sir? 21 A. Earlier that morning I had contacted Mr. Henson out 22 at the Golden Era Productions location and asked if he would 23 voluntarily come to the Hemet Station that afternoon for an 24 interview. 25 Q. And did he in fact go? 26 A. Yes. 27 Q. How long was the interview? 28 A. I believe about an hour and-a-half. 69 Amanda M. Fa an C.S.R. #8764 RPR 1 Q. During the interview did you show these postings to 2 Mr. Henson? 3 A. Yes. 4 Q. And did you hand them to him? 5 A. I don't know that I handed them to him, but put them 6 in front of him. We were sitting at a table, yes. 7 Q. So he was able to look at the postings? 8 A. Yes. 9 Q. And did he read them? 10 A. Not -- no, he just skimmed over some highlighted 11 areas that I pointed out. But he looked at them. 12 Q. Okay. And in the course of your interview did you 13 have a discussion with him about these postings? 14 A. Yes. 15 Q. And what was discussed? 16 A. That he had posted them as a joke, or basically to 17 make the church paranoid of him, or afraid. 18 Q. Okay. During that discussion did he say anything to 19 put these postings into context? Is that the joking part and 20 the paranoia part? 21 A. Yes, just to make them paranoid. 22 Q. So he acknowledged that they were his postings, but 23 he told you it was either a joke or to make them paranoid? 24 A. Yes. 25 Q. Did he suggest at any time during the interview that 26 any of these were not his postings? When you put them in 27 front of him did he say, "Those aren't my postings"? 28 A. No. 70 Amanda M. Fagan, C.S.R. #8764 RPR 1 Q. Did he say or imply that anyone forged his name onto 2 these postings? 3 A. No. 4 Q. Now, you talked about the paranoia, so was - 5 before. Was that some sort of general plan that he had 6 indicated to you? 7 A. I think one of the terms that he used was 8 "psychological warfare." 9 Q. He was using psychological warfare? 10 A. Yes. 11 Q. By means of the postings? 12 A. Yes. And the picketing. 13 Q. Okay. Given the context of the interview - 14 THE DEFENDANT: I'm sorry. 15 THE COURT: Are you okay? 16 THE DEFENDANT: Yeah, I'm sorry. 17 Q. (By Mr. Schwarz): Given the context of the 18 interview and handing him the postings, letting him look at 19 the postings, were you sufficiently satisfied that they were 20 his? 21 A. Yes. 22 Q. Why? 23 A. Because he said they were. 24 MR. SCHWARZ: No further questions, your Honor. 25 THE COURT: Mr. Harr? 26 MR. HARR: Thank you, your Honor. 27 CROSS-EXAMINATION 28 BY MR. HARR: 71 Amanda M. Fagan, C.S.R. #8764 RPR 1 Q. Detective, do you have a copy of these three, I 2 assume you know, for example, like, Exhibit 17, the one that's 3 marked 17? 4 A. Yes, sir, I have them right here. 5 Q. In looking at your police report - 6 MR. SCHWARZ: Which one? 7 MR. HARR: That we previously referred to.I 8 believe at the top it says "Date prepared, August 8th, 2000." 9 THE WITNESS: Yes. Yes, sir. 10 Q. (By Mr. Harr): On page 1 at the top, it's a 11 continuation sheet apparently, continuation sheet, page 1, the 12 evidence items are listed as a video cassette, et cetera, and 13 a cassette tape, et cetera. I don't see anything in here that 14 your report refers to any specific internet postings; how do 15 you know that these are, in fact, the documents that you 16 discussed with Mr. Henson? 17 A. Because they're attached to my report. 18 Q. Okay. And on your report at page 3, continuation 19 sheet page 3, I believe you indicated that he, referring to 20 Mr. Henson, he said he could not tell if the message was 21 tampered with but could tell if something was wildly out. "I 22 told Henson I wanted to go over some of his internet postings 23 to make sure they were his writings and not tampered with --"? 24 MR. SCHWARZ: Where? 25 MR. HARR: Line 12. Why don't I do this in order 26 here. "I told Henson I wanted to go over some of the internet 27 postings to make sure they were his writings and not tampered 28 with. He said he could not tell if the message was tampered 72 Amanda M. Fagan, C.S.R. #8764 RPR 1 with, but could tell if something was wildly out." 2 Q. So he didn't make an unqualified statement saying, 3 "I'm really sure these are mine"? Apparently from your report 4 that's not what he said; correct? 5 A. No, he didn't say that. But he didn't point out any 6 wildly out of order ones, either. 7 Q. You didn't read them all; is that correct? 8 A. No, he glanced at them. 9 Q. I guess your report indicated that it was your 10 previous information you had indicated that maybe Mr. Henson 11 indicated he was trying to make the Scientologists paranoid, 12 but in fact he made a statement that he might be wanting to 13 make Mr. and Mrs. Miscavige paranoid; isn't that what it says 14 on page 64, line 3 - 15 MR. SCHWARZ: Relevance. 16 THE COURT: Read the question again? I'm sorry, 17 would you repeat. 18 (Record read.) 19 THE COURT: Sustained. 20 Q. (By Mr. Harr): When you went through the postings, 21 for example, Number 17, Deputy Greer, if you could please look 22 at that one? 23 A. Yes, sir. 24 Q. There are some -- I don't know what you would call 25 them -- greater-than or less-than indications in the left 26 margin under "Snip"? 27 A. Uh-huh. 28 Q. Did Mr. Henson tell you that he posted that? 73 Amanda M. Fagan, C.S.R. #8764 RPR 1 A. Well, as you, I'm as confused as you are with this. 2 Mr. Henson and I went through that, and he pointed out what 3 each snip and asterisk and all the internet stuff was. So he 4 pretty much pointed out what was his, and if somebody had 5 posted prior or behind him during the interview. 6 Q. All right. So on this specific instance what did 7 Mr. Henson say about the four lines that have the greater-than 8 sign in front of them? Did he in fact indicate that he posted 9 that information? 10 A. I don't remember. 11 Q. Okay. What part of that document do you remember 12 that he acknowledged posting? 13 A. The part that says, "No way modern weapons are 14 accurate to a matter of a few tens of yards. The terminal 15 guide ones are good to single digits." 16 MR. HARR: No further questions. 17 THE COURT: All right. Mr. Schwarz? 18 MR. SCHWARZ: Nothing, your Honor. Submit. 19 THE COURT: Argument? 20 MR. HARR: Just that to the extent Deputy Greer does 21 not recall that Mr. Henson authenticated those four lines, I 22 believe that, you know, those should be redacted or deleted in 23 some way. 24 THE COURT: Which four lines of which - 25 MR. HARR: The four lines that have the -- I guess 26 - 27 THE COURT: Which exhibit? 28 MR. HARR: Excuse me, your Honor, Number 17.They 74 Amanda M. Fagan, C.S.R. #8764 RPR 1 have those greater-than or -- signs on the four lines 2 beginning, "The range of a Pluton M.R.B.M.", et cetera, et 3 cetera, and the three lines right under that, they have those 4 indicators on the left-hand margin. To the extent that Deputy 5 Greer says he can't remember if Mr. Henson authenticated that, 6 I believe that should at least be redacted. He seems to 7 indicate that Mr. Henson confirmed the last part, so I 8 wouldn't have any objection to "No way modern weapons --" 9 MR. SCHWARZ: Your Honor, may I respond? 10 THE COURT: Yes. 11 MR. SCHWARZ: Your Honor, that's again a context. 12 It's a reply, your Honor. The four lines are someone else's 13 writing, and it adds context. Otherwise "No way modern 14 weapons" doesn't make sense unless you have the four lines 15 above it, your Honor. 16 MR. HARR: I believe Counsel is testifying. I tried 17 to restrain myself in that regard. 18 MR. SCHWARZ: We've been down this road before, your 19 Honor. 20 THE COURT: I think we have. The objection will be 21 overruled. The items will be received. They'll be deemed 22 authenticated, I guess. 23 MR. HARR: Then I'd like to go to 18. 24 THE COURT: I misused the language this morning, I 25 said "received." What I meant to say was "authenticated." 26 MR. SCHWARZ: Yes, your Honor. 27 MR. HARR: I'd like to go to 18 now. 28 THE COURT: Okay. 75 Amanda M. Fagan, C.S.R. #8764 RPR 1 Q. (By Mr. Harr): Detective Greer, could you please 2 grab Number 18, if it's available to you there? 3 A. I've got it. 4 Q. Thank you. What part of 18, if any, did Mr. Henson 5 indicate to you that he actually posted himself? 6 A. My understanding was since there's no asterisks the 7 whole thing, or the little greater or lesser signs - 8 THE COURT: You've answered the question. 9 Q. (By Mr. Harr): Are you -- you're not sure, or you 10 are sure? 11 A. I am. 12 MR. HARR: No further questions. 13 THE COURT: 18 will be received. I mean deemed 14 authenticated. 15 Q. (By Mr. Harr): Would you please refer to 19, Deputy 16 Greer. Is your answer the same for 19 as far as him actually 17 saying that he posted this himself? 18 A. Yes, sir. 19 MR. HARR: Then I would have no objection to 19. 20 THE COURT: All right. That will be deemed 21 authenticated. 22 Q. (By Mr. Harr): If could you please refer to 20? 23 A. Got it. 24 Q. What part of that, if any, did Mr. Henson indicate 25 that he personally posted? 26 A. The whole thing. 27 MR. HARR: No objection to that. 28 THE COURT: Deemed authenticated. 76 Amanda M. Fagan, C.S.R. #8764 RPR 1 Q. (By Mr. Harr): Please refer to 21. 2 A. I have it. The "Oh, great," asterisk, "now has to 3 watch for eagles as well as cruise missiles." 4 Q. That part he indicated he posted? 5 A. From my recollection, yes. 6 Q. How about the rest of it? 7 A. I don't recall. 8 MR. HARR: No further questions. 9 THE COURT: All right. 10 MR. HARR: I would object to the lines with the 11 greater-than on it, but -- I don't -- I don't object to that. 12 THE COURT: Thank you. Deemed authenticated. 13 Q. (By Mr. Harr): Did Mr. Henson indicate that he 14 posted this in its entirety, or did he qualify that? 15 A. "I trusted her with the launch codes for the 47 16 I.C.B.M. aimed at Gold Base. Now watch me get arrested again." 17 Q. He indicated this was a response to something that 18 was, "Jeez, get a grip" or whatever? 19 A. I don't recall that he responded to that, but that 20 was the part that he posted. 21 Q. Okay. I asked that poorly. 22 THE COURT: What's that? 23 Q. (By Mr. Harr): I refer to the part that started 24 with the little greater-than signs, those two lines that say, 25 "Jeez, get a grip, peoples, no one is saying to hand over any 26 kind of information to Tory." Do you recall if Mr. Henson 27 said that he posted that? 28 A. I don't recall. 77 Amanda M. Fagan, C.S.R. #8764 RPR 1 Q. But it is your recollection that he posted the part 2 that's below that? 3 A. Yes. 4 THE COURT: The objection will be overruled. It 5 will be received -- it will be authenticated. The purpose of 6 those statements are merely contextual. 7 Q. (By Mr. Harr): And Number 23, is it your 8 recollection that he indicated that he had posted all of that 9 one? 10 A. The part from "You have a point"? 11 Q. Yes. 12 A. The next paragraph that starts with "So." 13 MR. HARR: No objection. 14 Q. Would you please refer to Number 24. 15 THE COURT: Number 23 will be deemed authenticated. 16 MR. HARR: Thank you, your Honor. 17 Q. Do you recall discussing Number 24, what's been 18 marked 24, with Mr. Henson? 19 A. Yes, I do. 20 Q. Okay. What part, if any, on that document could you 21 please point out what he indicated that he posted? 22 A. The part where it talks about "It would take --" I 23 can't read the word because the printing's bad, but the next 24 word is "-- Deja Research to show this, but I think I --" with 25 asterisks on both sides "-- might have been first to use this 26 saying. My version was 'Not one stone under another in salty 27 fields.'" 28 Q. To the best of your recollection is that all that 78 Amanda M. Fagan, C. S. R. #8764 RPR 1 Mr. Henson indicated that he posted? 2 A. And the next paragraph below that. 3 Q. And how about the paragraph below that, starts, "You' 4 don't permit yourself to think about these ideas"? 5 A. I don't recall that. 6 MR. HARR: I don't have any objection to that. 7 THE COURT: All right. How about Number 25, 8 anything? 9 THE WITNESS: I recall all of them with the 10 exception of the ones with the greater signs. 11 MR. HARR: I don't have any objection to that, 12 either. 13 THE COURT: All right. The balance of the 24 and 25 14 will be authenticated, deemed authenticated. 15 All right. Any further questions? 16 MR. HARR: No, your Honor. 17 THE COURT: Detective, thank you for your testimony. 18 You can keep those. You may save them for something. We have 19 copies here. 20 MR. SCHWARZ: Yes, your Honor. 21 THE COURT: All right. Anything else at this time? 22 MR. SCHWARZ: Not at this time, your Honor. 23 THE COURT: What are we going to do this afternoon? 24 MR. SCHWARZ: Well, your Honor - 25 THE COURT: We're going to finish these guys; right? 26 MR. SCHWARZ: I'm sorry, which guys? 27 THE COURT: The -- Exhibit 1, 4, 11, 12, and 16. 28 And 5, I think. Oh, no, 5 was -- okay. That's what the Court 79 Amanda M. Fagan, C.S.R. #8764 RPR 1 wanted, to take these up separately. I said I'd rule on these 2 after lunch. 3 Anything else that we want to take up after lunch 4 other than these? 5 MR. SCHWARZ: Is the Court going to - 6 THE COURT: And the -- and the reconsideration. 7 MR. SCHWARZ: And the reconsideration motion. 8 MR. HARR: Mr. Olive's here as well on the - 9 THE COURT: Say what? 10 MR. HARR: Mr. Olive's here on the motion regarding 11 the fair game issue. 12 THE COURT: Yeah. Does he want to get out of here? 13 MR. HARR: He probably wouldn't mind. He's going to 14 be in town for a while. 15 THE COURT: Well, no, I mean this morning. Because 16 -- how long is it going to take? 17 MR. HARR: Well, we've -- I would -- my best 18 estimate would probably be about a half hour, depending on - 19 THE COURT: Let's do it at 1:30. 20 MR. SCHWARZ: Your Honor, there is one other thing. 21 I don't know if the Court wants to take it up now since we 22 have five minutes. The Court previously reserved judgment on 23 the Mombo Chicken Book. 24 THE COURT: I know I have. And I want to review, I 25 saw that referred to on one of the documents. 26 MR. SCHWARZ: And the People also would proffer some 27 other documents that would indicate that Mr. Henson actually 28 refers to - 80 Amanda M. Fa Ian, C.S.R. #8764 RPR 1 THE COURT: I know he did, and that's what I wanted 2 -- I want -- that's why I took it under -- I reserved 3 judgment. 4 What is that? 5 MR. SCHWARZ: It's some additional documents that 6 were not authenticated, your Honor. But they do in fact for 7 purposes of the -- since the Court is reserving judgment it 8 does, and the Court asked me the last time on Monday did I 9 have any internet postings that indicate whether or not 10 Mr. Henson actually refers to the book in 19 - 11 THE COURT: Right, I'm sorry. 12 MR. SCHWARZ: -- in 1997 or before these events 13 occurred. And the Court -- and the People have found two such 14 -- two such internet postings, your Honor. 15 THE COURT: Counsel, the concern the Court has is 16 that those documents have not been authenticated. I don't 17 know whether they're correct or not. The Court's interest is 18 only in the authenticated documents wherein Mr. Henson has 19 referred to the "Great Mombo Chicken." The Court will make 20 its ruling based upon what relevant authenticated documents it 21 has. And it will not refer to anything that hasn't been 22 authenticated. 23 MR. SCHWARZ: The People apologize, your Honor. It 24 was the People's understanding the last time, it was a direct 25 question to the People as I recall, "Do you have anything of 26 that nature?" I didn't think the Court was in fact asking for 27 an authenticated document, but just some reference to it. And 28 so that's the reason why the People proceeded this way. 81 Amanda M. Fagan, C.S.R. #8764 RPR 1 THE COURT: That's the Court's position. 2 MR. SCHWARZ: Thank you, your Honor. 3 THE COURT: Anything else right now? 4 MR. SCHWARZ: Right now, no. Thank you, your Honor. 5 THE COURT: All right. We'll see you at 1:30. 6 Let's come back prompt at 1:30. 7 MR. SCHWARZ: Yes, your Honor. 8 (Noon recess taken.) 9 AFTERNOON SESSION 10 THE COURT: All right, Counsel. Did you have an 11 expert that you wanted to introduce? Yes, Counsel? 12 MR. SCHWARZ: Your Honor, before we take up those 13 matters with respect to the expert, was the Court going to 14 allow me to speak about item Number 16, or People's Number 16? 15 THE COURT: Yes. 16 MR. SCHWARZ: Okay. 17 THE COURT: Let's wait for a minute. 18 Go ahead. 19 MR. SCHWARZ: With respect to item 16, your Honor - 20 I'm sorry, I have to find my template. If the Court would be 21 so kind as to go to the October 25th, 2000 deposition, which 22 was People's Number 3. 23 THE COURT: Okay. 24 MR. SCHWARZ: And turn to, just as it's indicated, 25 six -- number 612. I think for clarification, your Honor, 26 it's lines 5 and 6, and it starts with, "I fired ammunition 27 which is well over 40 years old." And if the Court would go 28 to People's Number 16, the fourth full paragraph starting 82 Amanda M. Fagan, C.S.R. #8764 RPR 1 with, "But military hardware is built to last a long time in 2 storage --" 3 THE COURT: Wait a minute. 4 MR. SCHWARZ: Page 2. 5 MR. HARR: Is this document Number 74? 6 MR. SCHWARZ: 74, yes. 7 THE COURT: Okay. 8 MR. SCHWARZ: Starting with the line -- starting 9 with - 10 THE COURT: I see it. 11 MR. SCHWARZ: It says, "I have fired ammunition 12 which is well over 40 years old," your Honor. So there was 13 some confusion as to whether or not the authentication was 14 referring to this specific document. So the opposing Counsel 15 and the Court seem to have a problem, but there is a direct 16 quote that identifies that this is the document, in fact, that 17 was talked about in the deposition. Or -- yes. In the 18 deposition, your Honor. So that should clear up that this was 19 in fact the document. 20 THE COURT: Counsel, you wish to be heard? 21 MR. HARR: Your Honor, I'm still trying to find 22 where the item is. I got to 74. 23 MR. SCHWARZ: Next page, right here. "I have fired 24 ammunition." 25 MR. HARR: Okay. 26 MR. SCHWARZ: Right there. And then you go to - 27 and read with the other ones about the documents - 28 THE COURT: Well, Counsel, I think the problem the 83 Amanda M. Fagan, C.S.R. #8764 RPR 1 Court has, I think it falls short of authentication when he 2 says on lines 5 and 6, "I fired ammunition which is well over 3 40 years old, that could be true." I think that's not, "That 4 is true" and therefore that he's authenticating. I think what 5 he's doing is he's saying he may have fired ammunition over 40 6 years old, but he's not necessarily authenticating this 7 statement. At least that's the interpretation the Court has. 8 Mr. Harr? 9 MR. HARR: Your Honor, I see exactly what you're 10 referring to. It just seems to be unclear. It's equivocal. 11 He's obviously confused. This excerpt indicates his 12 confusion. 13 THE COURT: You're agreeing with the Court? 14 MR. HARR: Yes, sir. 15 THE COURT: Okay. Mr. Schwarz? 16 MR. SCHWARZ: Then I would ask that the Court turn 17 back to page 611, starting with lines 14 then, and read the - 18 read it in context. 19 THE COURT: Well, this makes it even less clear, 20 Counsel, because he says, "I cannot -- I cannot authenticate 21 it." He's being asked to authenticate portions of it. He 22 says, "I can't -- I cannot -- I cannot authenticate it." 23 That's at line 21. And I don't mean to take this out of 24 context, but his merely saying that he "fired ammunition which 25 is well over 40 years old, that could be true," that doesn't 26 necessarily authenticate it. 27 Anything else? 28 MR. SCHWARZ: No, your Honor, with respect to 16. 84 Amanda M. Fagan, C.S.R. #8764 RPR 1 That's - 2 THE COURT: Anything? That will not be received. 3 MR. SCHWARZ: Okay. 4 THE COURT: As authenticated. 5 MR. SCHWARZ: Your Honor. 6 THE COURT: Yes. 7 MR. SCHWARZ: Then may we take up with the -- with 8 respect to People's Number 6, which has been authenticated, 9 your Honor? 10 THE COURT: Why are we taking that up again? 11 MR. SCHWARZ: Because, your Honor, I believe that 12 the Court has authenticated all of the, for context only the 13 previous messages before, and as I recall that the Court 14 struck the "G.P.S. readings of Gold Base as a good start" on 15 this particular one, which would be inconsistent with the 16 Court's previous rulings. And so I would ask the Court to 17 reconsider that, because "A good topo map, the approach is 18 clear from the south" makes no sense without the previous 19 line, "G.P.S. readings, Gold Base is a good start." 20 THE COURT: The reason the Court -- the Court 21 recalls the reason the Court excised that portion is because 22 that was not authenticated by Mr. Henson. 23 MR. SCHWARZ: That's true, your Honor, but - 24 THE COURT: And it was -- he said, in fact, that he 25 couldn't authenticate that. 26 MR. SCHWARZ: Agreed, your Honor. But the Court 27 later on agreed that we're not -- if you're redacting that 28 portion as not authentic, the People would still submit, your 85 Amanda M. Fagan, C.S.R. #8764 RPR 1 Honor, that that still is a contextural argument which would 2 follow the Court's further orders that the previous portion, 3 so that it could be read in context. People, if the Court 4 wants, we will stipulate that that's not Mr. Henson's 5 writings, only that it lends itself to explain what was the 6 context of what he was replying to, your Honor, which would be 7 consistent with how the Court's ruled in after, subsequent 8 postings, your Honor. 9 THE COURT: I don't think so, Counsel. 10 MR. HARR: No, your Honor. And to start the thing 11 out saying - 12 THE COURT: Excuse me, Counsel, I didn't ask you to 13 respond. I didn't ask you to respond. I've already made up 14 my mind, and that's the way the Court will receive item Number 15 6. 16 MR. SCHWARZ: The last preliminary matter that I 17 would ask the Court to take up at this time is, as I read, I 18 received a document from Defense Counsel this morning, I don't 19 know if the Court has a copy of it? 20 THE COURT: I hope I don't. 21 MR. HARR: You don't, your Honor. Your copy, if 22 any, would be right here. 23 MR. SCHWARZ: Okay. So there's 1 through 20. As I 24 read through the document by ostensibly -- this is from 25 Mr. Oliver. It appears at this point that what Counsel is 26 trying to proffer this witness is as an expert with respect - 27 THE COURT: Which witness? 28 MR. SCHWARZ: Mr. Oliver, your Honor. 86 Amanda M. Fagan, C.S.R. #8764 RPR 1 THE COURT: Oh, okay. 2 MR. SCHWARZ: The so-called expert. 3 THE COURT: Oh, okay. All right. 4 MR. SCHWARZ: It appears that what Counsel intends 5 to proffer Mr. Oliver for is that he is an expert with respect 6 to the veracity of the witnesses. I'll give you an example. 7 THE COURT: Wait a minute, Counsel. Why not let 8 Mr. Harr do that? 9 MR. SCHWARZ: Thank you, your Honor. 10 THE COURT: Mr. Harr. 11 MR. HARR: Your Honor, thank you. We have 12 Mr. Oliver here today. 13 THE COURT: All right. Let's get him up on the 14 witness stand and ask him - 15 MR. HARR: These documents Counsel referred to -- I 16 believe -- he's outside. His name's Frank Oliver. 17 Mr. Oliver's attempted to try to streamline his testimony this 18 afternoon. This shows what his qualifications are, some of 19 the courses he's had through Scientology, the fact that he was 20 a member, some of the positions that he's held, including 21 O.S.A., which would be the area that would conduct the fair 22 game tactic. And the Court's ruling I thought was clear, that 23 we have to qualify him for the relevant period. He was not a 24 Scientologist during the relevant period. But his expertise 25 is such that he understands that this practice was going on 26 during his tenure in '92 and that it can't be revoked. 27 Therefore, the whole notion that the issue of threat - 28 THE COURT: Have a seat, sir, please. 87 Amanda M. Fagan, C.S.R. #8764 RPR 1 MR. HARR: -- just like any other opinion that an 2 expert can have as to, "When given the facts in this case as 3 we believe that they are, isn't this consistent with the fair 4 game tactic?" Because all of the witnesses are in essence 5 either - 6 THE COURT: How can this witness, Counsel, testify 7 as to the credibility of any other witness? How is that 8 possible? 9 MR. HARR: He's not going -- okay. I think that's a 10 really -- that's the heart of the matter. Okay. He's not 11 going to testify as to their credibility. He can't. 12 THE COURT: I didn't think so. 13 MR. HARR: Okay. But as with anybody that's 14 rendering an opinion, like post-traumatic stress disorder or 15 other things, if there is a factual situation the expert can 16 render an opinion. In this case the opinion that we're 17 proffering is that during the relevant period - 18 THE COURT: That is - 19 MR. HARR: -- approximately June-ish through 20 September of 2000, that the fair game practice was in fact 21 alive and well, based on his extensive knowledge, his 22 appearance on T.V., his going through the courses, his 23 practicing himself after it was supposedly nonexistent. He 24 has special inside information because he did it. That's our 25 proffer. He can render an opinion if given the facts of this 26 case if the scenario isn't consistent with the practice of 27 fair game, which includes destroying adversaries of 28 Scientology. That's basically it in a nutshell, your Honor. 88 Amanda M. Fagan, C.S.R. #8764 RPR 1 THE COURT: Well, do you have anything you wanted to 2 say? 3 MR. SCHWARZ: Yes, your Honor. 4 THE COURT: I'm sure you do. 5 MR. SCHWARZ: I apologize. But Mr. Harr, with all 6 due respect to Counsel, is simply dancing around the subject. 7 He's saying that he can testify to fair game. To what end? 8 He's claiming that they destroyed people or do whatever. But 9 as the Court noted last Monday, the Monday before, that the 10 Scientologists have nothing to do with how the People do its 11 case. It's the District Attorney. The Court made that - 12 indicated that before. 13 So the only thing that Mr. Oliver can testify to is 14 that they, as we talked about before, that fair game is 15 supposed to be lie, cheat and steal. So here what we're 16 talking about is the fact that the only thing he can testify 17 to is that there is some doctrine, whether it exists or not, 18 that the Scientologists lie. The problem with that, your 19 Honor, is, and Witkin indicates, that nobody can be an expert 20 about someone's veracity. And they mention a case by the name 21 of People versus Sergel where the Court of Appeal at 138 22 Cal.App. 3rd, 34, indicates that you can't have someone get up 23 on the stand and say, "This person is going to tell you the 24 truth or not going to tell you the truth." You can't have 25 that happen. 26 THE COURT: I agree. I don't think that that's - 27 that's not the view that -- or what the Court would have under 28 other circumstances. 89 Amanda M. Fagan, C.S.R. #8764 RPR 1 I'll tell you the thing that's beginning to trouble 2 the Court. And that is this. The sole purpose that the Court 3 would receive testimony concerning the fair game doctrine is 4 to attack the credibility of the witnesses. But I think we 5 get into the 352 problem here. And the 352 problem is as 6 follows: If the sole purpose is to attack credibility, and I 7 think Mr. Schwarz pointed that out to the Court the other day, 8 that is, we get down the road that we don't want to travel, 9 the Court has some serious issues concerning whether or not, 10 as it stated this morning, the circumstances surrounding a 11 tenet, or a policy, or an activity is a -- is a religious 12 theory or not a religious theory. I don't think it makes any 13 difference. The more I hear this, the more convinced I become 14 that 789 does apply in this circumstance, and if it doesn't, 15 to the extent that we get down the road that we don't want to 16 travel, the concern that the Court has is that this case - 17 that it just falls within 352. 18 We will -- the obvious prejudice -- and for the 19 moment I will accept that Mr. Oliver would qualify as an 20 expert. The problem the Court has with that, based upon what 21 you've said, Mr. Harr, is that he was not a -- he was not a 22 member -- did not know about this doctrine as it may or may 23 not have existed in the year 2000, which is the relevant 24 period that we're talking about. I believe you said it was 25 1992 that he stopped being a Scientologist; is that correct? 26 You can sit. Just - 27 MR. HARR: Thank you, your Honor. 28 THE COURT: Just tell me "yes" or "no." 90 Amanda M. Fagan, C.S.R. #8764 RPR 1 MR. HARR: He exited his actual membership in 1992, 2 but his special training and knowledge indicates to him that, 3 I'll be specific, L. Ron Hubbard's directives cannot be 4 changed. 5 THE COURT: I read that. I've read that. 6 MR. HARR: And therefore, whether he was actually a 7 member or not, because of his training and understanding of 8 this tactic, it can't be revoked. It has to be in place. And 9 this is not about specific credibility of a witness. The 10 witnesses, to the extent the People call them, they will take 11 the stand, they will give their testimony, their demeanor will 12 be observed, the content of their testimony will be observed. 13 This is another plausible alternative to what's 14 going on. If the witnesses -- this is not going to be a 15 direct attack on any specific person. That is not what this 16 is about. This is a plausible, another explanation of what is 17 going on with this set of facts. These people are going to 18 speak for themselves. There's nothing I can do about that. I 19 can cross-examine them on their ability to perceive. 20 THE COURT: Certainly you can. 21 MR. HARR: I can cross-examine them on, you know, 22 who told them what, or, you know, all of that good stuff. Can 23 I say, you know, something like, "Are you a Scientologist? 24 Doesn't that make you a liar? Isn't it true because you hold 25 this position," or something like that. That would probably 26 fall within the area of 789 that we have discussed, because 27 that would be a clear, direct attack on them, on their 28 credibility. I'm not bolstering their credibility, I'm not 91 Amanda M. Fagan, C.S.R. #8764 RPR 1 attacking their credibility. I'm offering another plausible 2 scenario. 3 THE COURT: What's the difference between asking 4 them if they're a Scientologist or if they believe in the fair 5 game doctrine that's related to Scientology? 6 MR. HARR: I hear what you say, your Honor. I 7 apologize. I'm not sure what you mean. 8 THE COURT: There's no difference, as the Court sees 9 it. I think it's exactly the same question. I think it falls 10 within the same purview. As the Court indicated this morning, 11 I don't think that -- that if we're going to conduct any 12 inquiry that it is outside the purview of 789. I think that 13 any time we make an inquiry as to someone's belief, 14 irrespective of what the religion, what the belief, whether we 15 call it a tenet, whether we call it a policy, whether we call 16 it an unwritten directive, I think that falls within 789. And 17 the concern that the Court has is that although the Court 18 believes there might be some relevance to the credibility 19 issue, I think 789 stops us. And if that doesn't, certainly 20 the inability of the witness, the expert witness to testify as 21 to what the -- what the practice was in 2000 would eliminate 22 him as an expert. So I think under either prong, I think 789 23 does apply. 24 The Court thinks that -- believes at this moment 25 that that's the way it's going to rule. Do you want to 26 respond? 27 MR. HARR: Yes, your Honor, I do. 28 THE COURT: Sure. 92 Amanda M. Fagan, C.S.R. #8764 RPR 1 MR. HARR: I've read the People's pleadings in this 2 matter. And they've cited various examples to show how this 3 doctrine might apply in certain instances. The most recent 4 one in their pleading today was, you know, something about a 5 neo-Nazi doing this, that, or another thing to a synagogue 6 perhaps and then saying, "Well, I can't -- you know, I can't 7 do this," you can't defend yourself and that. The scenario 8 that was played out, that was described in that pleading, you 9 know, that would be an obvious application of 789. 10 In the current case, the heart of this is 11 credibility, not bolstering credibility, not attacking 12 credibility, credibility which is the purpose -- I don't mean 13 to sound like I'm preaching to the Court. But the purpose of 14 the trial is to try to get at the truth, and to have everybody 15 get their say in. And in the sense of 789, usually that's in 16 the case of, "Well, isn't it true you are an atheist, or maybe 17 you don't believe in God, so you shouldn't take an oath," 18 something along those streams, "Get out of here," you know, 19 "You swore or affirmed to tell the truth." 20 In this case the concern, if I understand it 21 correctly, is a belief that engaging in essentially criminal 22 activity, and I don't see that lightly, engaging in criminal 23 activity, suborning perjury for example, is somehow protected 24 by a statute that says you can't look into a religious 25 practice. In the current case we have just the flip side of 26 that. For example, First Amendment -- I'm not trying to get 27 off the subject here. I know where I'm going here. First 28 Amendment, Keith Henson can say whatever he can within the 93 Amanda M. Fagan, C.S.R. #8764 RPR 1 bounds of the First Amendment. When he steps over the line, 2 if he actually engaged in a threat, the law doesn't protect 3 him anymore. 4 Same with 789. 789, you have a religious belief, 5 you have a religious practice, we don't go there, we can't. 6 But you go over the line, and there's credible information 7 that suborning perjury is a tactic that can be used, that goes 8 beyond, in my argument, beyond 789 as not what the statute is 9 intended to be there for. And there's no case on point to say 10 that this can't be done. 11 Thank you, your Honor. 12 THE COURT: Mr. Schwarz, anything? 13 MR. SCHWARZ: I would only say, I would only comment 14 this, your Honor. That from Counsel's -- Counsel wants to 15 have his cake and eat it, too. And the reason why is that he 16 believes that it's not -- first he argues that it's a 17 religious tenet, and then he's saying it's not a religious 18 tenet, it's a practice because -- because in his opinion it 19 can't be a religious tenet because it somehow, you know, to - 20 if we even believe, this is only if you believe the lying, 21 cheating, stealing is -- we can attribute to the 22 Scientologists as their religious tenet. But assuming that it 23 is, somehow Mr. Harr believes that that really isn't a 24 religious tenet, can't be one, and he therefore is somehow 25 opined that they can't hide behind the First Amendment or 789 26 because that's not really a religious tenet. That is his 27 argument. And if it's not that, if -- we're not going to 28 introduce it for the purposes of religious tenet, it's somehow 94 Amanda M. Fagan, C.S.R. #8764 RPR 1 an alternate theory about what has occurred. 2 Mr. Henson either posted these documents or he 3 didn't. And the only question in this trial when my witnesses 4 take the stand is whether or not they were scared. And again, 5 this goes back to the fact that Mr. Harr readily admits that 6 he can talk, he can cross-examine about their perception, he 7 can talk about their body language or whatnot. That's his job 8 as a defense counsel. The only reason it boils down to the 9 fair game as even being argued in this case is basically to 10 besmirch the fact that they are Scientologists. And if -- the 11 fact is that if Mr. Olive's only testimony that he can do is 12 say that, "Fair game existed, and I'm a Scientologist, this 13 happened while I was in Scientology, that thereby I was taught 14 to lie, cheat and steal," the necessary inference, your Honor, 15 is that these Scientologists are lying, cheating and stealing 16 now. 17 So it gets back to the very same thing I said 18 before, your Honor, that he is trying to essentially elicit 19 testimony or trying to attack testimony based on an expert 20 about their veracity. That's really what it boils down to. 21 This person is supposed to shed light or attack the 22 credibility of their veracity. And we can't do that. 23 Otherwise, your Honor, then I would be allowed to -- if this 24 were the case, a necessary end would be I could have them take 25 polygraph tests and have the expert get up and tell them, 26 "Well, they're telling the truth because I'm an expert in 27 polygraph." And that would be a lot better, because at least 28 the polygraph people or the polygraph tester would have at 95 Amanda M. Fagan, C.S.R. #8764 RPR 1 least met them. Mr. Oliver has not. He hasn't even met them. 2 What he's trying to do is, he's trying to allege that a tenet 3 or some dogma is being -- is attributable to every 4 Scientologist in the country and in the world, all eight 5 million of them. So it would be akin to this, your Honor. 6 THE COURT: Counsel, don't give me any more 7 analogies. Just finish your argument. 8 MR. SCHWARZ: My only other argument is this, your 9 Honor. Clearly 789 applies. And if the Court -- I think the 10 Court is correct when it goes down to 352 argument, because it 11 is clearly too prejudicial to just, for the very fact of some 12 alternate theory, to besmirch the Scientologists as a 13 religion, as a group of people, for that sole purpose. If 14 it's not to attack the credibility, then that really is the 15 only reason. As Mr. Harr indicates, that's really the only 16 reason we are doing this, so Mr. Oliver can say how bad 17 Scientologists are, and because they are Scientologists don't 18 believe them, there is an alternate theory, this entire 19 proceedings is a sham. And I don't even know how I fit into 20 this, your Honor. I'm the District Attorney, and we're the 21 ones that are charging Mr. Henson. So I can't -- I can't 22 imagine what exact -- his purpose is. 23 So I would respectfully request not to have this 24 person even qualified, because he doesn't have an area that he 25 can actually testify and be an expert on, your Honor. Submit. 26 THE COURT: Okay. The Court believes that the 27 prejudice of such testimony would far outweigh any probative 28 value, and therefore will not receive evidence of the fair 96 Amanda M. Fagan, C.S.R. #8764 RPR 1 game doctrine. Question of 789 I think is a little different, 2 and the Court will not rule on that issue at this time. Any 3 reference to the fair game doctrine will be -- will not be 4 permitted. 5 Okay. That being said, let's now go back to the 6 issue of the items set forth in Number 1 offered by the 7 People, Number 11, 12. With respect to Number 11, the Court 8 believes that it -- that there is a 352 problem with this as 9 well. It's from 19 -- it may be from 1995. There's nothing 10 to authenticate the time and the surrounding circumstance of 11 the threats in the summer of 2000. 12 MR. SCHWARZ: Your Honor, can the People be heard? 13 THE COURT: No. You'll just go around and around, 14 and the Court's already made a determination. Thank you. 15 MR. SCHWARZ: Thank you, your Honor. 16 THE COURT: I don't mean to cut you off, Counsel, 17 but I've given you ample opportunity. 18 MR. SCHWARZ: I appreciate that, your Honor. 19 THE COURT: Okay. All right. Because there is - 20 it is uncertain as to the time, the Court is going to not to 21 authenticate Number 1. Number 11 and Number 12 can be taken 22 up at the same time. And that is the issue of whether or not 23 these -- the stipulation by the attorneys constitute an 24 admission on the part of the defendant. Those documents were 25 introduced in the collateral civil proceedings; am I correct? 26 MR. SCHWARZ: Yes, your Honor. 27 THE COURT: And at that time the attorneys 28 stipulated to the entry of a whole series of documents which 97 Amanda M. Fagan, C.S.R. #8764 RPR 1 -- among which were People's 11 and 12; is that correct? 2 MR. SCHWARZ: That is correct. 3 THE COURT: All right. I'll listen to very brief 4 argument on whether or not -- and why the Court should deem 5 these an admission when it's unclear from the record the 6 purpose for which they were admitted. 7 MR. SCHWARZ: Your Honor, there are -- I apologize. 8 THE COURT: It's all right. 9 MR. SCHWARZ: Your Honor, the - 10 THE COURT: I've interrupted you, so it's okay. 11 Once. 12 MR. SCHWARZ: Your Honor, I have Mr. Rosen, who is 13 the attorney of -- counsel in the audience who conducted the 14 trial. He informs me, and we can take testimony, that -- if 15 that's the Court's desire -- that it was -- these documents 16 were admitted for all purposes. They were admitted into 17 evidence to -- with respect to authenticity, with respect to 18 dates, and times, and whatnot, for all purposes in this 19 particular proceedings. The People would argue that since the 20 defendant had waived that with respect to authenticity that he 21 is collaterally estopped at this point from denying that they 22 are, in fact, authentic if they were used in a trial before, 23 your Honor. 24 THE COURT: Why is he collaterally estopped? One 25 was a civil trial. 26 MR. SCHWARZ: Yes, your Honor. 27 THE COURT: Am I correct? 28 MR. SCHWARZ: Yes, your Honor. 98 Amanda M. Fagan, C.S.R. #8764 RPR 1 THE COURT: And this is a criminal trial. 2 MR. SCHWARZ: Yes, your Honor. 3 THE COURT: I know your argument about the 4 preponderance of the evidence, but let's look at that issue, 5 civil trial versus criminal trial. 6 MR. SCHWARZ: Absolutely, your Honor. Well, as the 7 Court knows, that in reverse -- for example, and I hate to use 8 this, but the O.J. Simpson case, your Honor. The testimony 9 that was taken by various officers and by various experts, if 10 you will, were allowed because -- in that trial to be used in 11 the civil trial, your Honor. You can't now raise -- and 12 between two civil cases, your Honor, estoppel applies. At 13 least the People would argue that, that if you admit to it in 14 one proceedings which is before the Court, and you're supposed 15 to give the Court an honest or -- and the Court is supposed to 16 ferret out the truth, whether civil or criminal, your Honor, I 17 don't know how the defendant now in the same -- in another 18 proceeding where he's supposed to tell the truth and whatnot 19 can now say that that's not authentic. The People have a 20 difficult time finding out how that's -- how on one hand you 21 can admit it and stipulate to and authenticate it, and in the 22 second in some other proceedings now deny it. That would be 23 the People's argument. Of course, we leave it in the Court's 24 wisdom. 25 THE COURT: Thank you. Counsel? 26 MR. HARR: Your Honor, I think the issue is what you 27 pointed out. If the attorneys stipulated to it, there's no 28 indication from the -- what's been provided to the Court here 99 Amanda M. Fagan, C.S.R. #8764 RPR 1 that Mr. Henson knew the consequences or all the consequences 2 of this, and whether he actually authenticated it. Yes, his 3 attorney did agree that it could be admitted, that there was 4 no objection. But I don't see anything in there that 5 Mr. Henson actually agreed to or authenticated it. 6 THE COURT: Well, the question, Counsel, the Court 7 has is not whether Mr. Henson knowing what he was 8 authenticating, but did he authenticate those documents. And 9 from the record it does not appear that he authenticated them, 10 that his attorney introduced them. Now we have Counsel for 11 Scientologists; is that correct? 12 MR. SCHWARZ: Mr. Rosen, yes. 13 THE COURT: Mr. Rosen? 14 MR. SCHWARZ: He's out in the hall. 15 THE COURT: We have Mr. Rosen, who was the attorney 16 for the Scientologists, who is going to tell us what he 17 believes they were introduced for. 18 MR. SCHWARZ: Absolutely. 19 THE COURT: But we don't -- that's his opinion. We 20 don't have Counsel for the defendant here. I mean, you could 21 get Counsel if you want to, and then we might be able to find 22 out. But I don't even think that would be helpful. I think 23 we'd be plowing that ground for a couple of days and not being 24 able to reap anything from that harvest. So I don't think it 25 makes any difference if we have testimony from the attorneys 26 as to what they intended. I think the intent was what the 27 defendant intended in that proceedings, and that is not 28 evident from the record. 100 Amanda M. Fagan, C.S.R. #8764 RPR