On Tue, 11 Sep 2001 06:03:28 GMT, hkhenson@home.com (Keith Henson) wrote: (to page 399) 1 MR. SCHWARZ: Objection, your Honor, calls for 2 speculation. 3 THE COURT: While he was picketing? I'll allow 4 that. Overruled. 5 THE WITNESS: At the point I saw him picketing I 6 didn't see him doing anything illegal. 7 Q. (By Mr. Harr): Did he have a sign with him? 8 A. Yeah. 9 MR. HARR: No further questions. 10 THE COURT: Counsel? 11 MR. SCHWARZ: Thank you. 12 REDIRECT EXAMINATION 13 BY.MR. SCHWARZ: 14 Q. Deputy Rowe, now, you write a report after you do an 15 interview; is that right? 16 A. Correct. 17 Q. Do you include every fact in your report? 18 A. Absolutely not. 19 Q. Okay. And you testified before that you had 20 arrested Mr. Henson on the road; is that correct? 21 A'. Yes. 22 MR. SCHWARZ: Okay. No further questions. 23 THE COURT: All right. Thank you, Officer. Or 24 Detective. You're excused. You may leave. 25 This is a good time for us to take our morning 26 recess. Please don't discuss the case. Let's get back here 27 at 20 minutes to 11:00. Court's in recess. 28 MR. SCHWARZ: Your Honor, at this time it might be a 350 Amanda M. Fagan, C.S.R. #8764 RPR 1 good idea for the People, this is our last witness -- I'll 2 wait until the jury - 3 THE COURT: Let's wait until the jury leaves. 4 MR. SCHWARZ: Yes. 5 (The jury exited the courtroom.) 6 THE COURT: Okay, folks. You can leave if you want 7 to. 8 MR. SCHWARZ: Your Honor, may I clarify something 9 with Madam Clerk? We're going to introduce our exhibits at 10 this point. 11 THE COURT: Okay. 12 Do I understand the People are resting now? 13 Mr. Schwarz? 14 MR. SCHWARZ: Excuse me, your Honor? 15 THE COURT: People are resting at this point? 16 MR. SCHWARZ: Well, not before we move into evidence 17 - 18 THE COURT: I understand. Subject to moving - 19 MR. SCHWARZ: Yes. 20 THE COURT: -- the items into evidence - 21 MR. SCHWARZ: Yes, your Honor. 22 THE COURT: -- the People rest? 23 MR. SCHWARZ: Yes, your Honor. 24 THE COURT: All right. Now - 25 MR. SCHWARZ: At this time, your Honor, the People 26 would move respectfully to enter Exhibits 2, 6, 7, 8A, 9A, 10, 27 13, 14, 15A, 17, 18A, 19A, 20A, 22, 23, 24A, 25A, 26, the map, 28 28, photograph of tunnel one, Exhibit 29, photograph of tunnel 351 Amanda M. Fagan, C.S.R. #8764 RPR 1 two, and Exhibit 30, the self-authenticating copy of the 2 patent, your Honor. 3 Now, with respect to the Court's -- I should -- the 4 People, neither Mr. Harr nor I have actually redacted the one 5 part on part -- on Exhibit 6, the line directly above it. If 6 the Court would like us to do this now we can do it, or the 7 Court can do it. 8 THE COURT: Remind the Court - 9 MR. SCHWARZ: On Exhibit 6, your Honor, there is one 10 line the Court did not allow into evidence, which is the line 11 directly above "A good topo map," your Honor. It dealt with 12 the G.P.S. readings. And so with that, your Honor, the People 13 would - 14 THE COURT: If you want to redact that. 15 MR. SCHWARZ: Yes, your Honor. May I - 16 THE COURT: Any objection to the evidence? 17 MR. HARR: I can't -- probably not, your Honor. The 18 one I can't remember is, there was the last line on one of 19 them was supposed to be redacted. Was that? 20 MR. SCHWARZ: Yeah. 21 MR. HARR: Other than that I wouldn't have any 22 objection. 23 THE COURT: All right. The items will be received 24 as marked with the redactions indicated. 25 MR. HARR: And then will the stipulation just be 26 read then as part of the - 27 THE COURT: I will read the stipulation as part of 28 the instructions, Counsel. 352 Amanda M. Fagan, C.S.R. #8764 RPR 1 MR. HARR: Great. 2 MR. SCHWARZ: And your Honor, apparently 13 was 3 redacted as well. If the Court will indulge the -- so I can 4 show it to Counsel as well. And we'll just -- we'll agree by 5 stipulation to those portions. Here's 13. 6 MR. HARR: That's the one I was thinking of. 7 MR. SCHWARZ: "P.P.S. is gone." And then -- and 8 then Number 6, the line right above. Do you want me to take a 9 marker right now? 10 MR. HARR: Yes, please. 11 MR. SCHWARZ: And your Honor, with that the People 12 rest. 13 THE COURT: All right. Any motions, Counsel? 14 MR. HARR: Excuse me, your Honor? 15 THE COURT: On either side, any motions? 16 MR. HARR: We have, Defense has an 1118.1 motion, 17 your Honor, regarding the sufficiency of the evidence. 18 THE COURT: Let me hear it. 19 MR. HARR: Yes, your Honor. In the current -- each 20 of the counts requires a threat. There have been a number of 21 postings that have been made, none of which were directed, if 22 they were threats at all, the postings certainly weren't 23 directed at the named alleged victims. If they were directed 24 at anyone, they were directed at a gentleman perhaps named 25 Mr. Miscavige, who is the head, I believe, of Scientology at 26 the current time. At least I believe that's the testimony. 27 There has been no testimony that anybody knows where 28 Mr. Miscavige is. He could be in Europe. 353 Amanda M. Facran. C.S.R. #8764. RPR 1 These couldn't constitute a threat. They weren't 2 directed to Scientology, they weren't put on Scientology web 3 sites, they weren't delivered to Scientology. There is no 4 indication that Mr. Henson had a specific intent to threaten 5 any of them. A specific intent is certainly an element, at 6 least we believe, in each one of the three counts. 7 The information that -- we have a lot of people that 8 say they're threatened -- excuse me, scared. And I'm not 9 quibbling about whether they're scared or not. That's not my 10 point here, but reasonableness. They're relying on 11 ten-year-old information, and there is nothing directed at 12 them. Apparently this information was received somewhere in 13 Los Angeles. The threat is he's going to blow somebody up, 14 even though he's never made a threat to blow somebody up. The 15 threat is that he is going to launch an I.C.B.M. at somebody, 16 even though he doesn't have an I.C.B.M. or there has been no 17 testimony to that effect, or that he knows how to launch an 18 I.C.B.M. There is no testimony that the patent has ever been 19 developed. There is some kind of drawing there that involves 20 an airplane and a payload, but again, there was no testimony 21 that Mr. Henson has a pilot's license or that he acted in 22 concert with anybody else. There is no reasonable threat. These people may very well be scared. But the 24 manager basically told two of the people, you know, "Be 25 scared." They said they had independent information; they 26 didn't have any independent information. He told them exactly 27 what was going on. One wouldn't even look at the sign. 28 Anything that was directed to these people, there is no 354 Amanda M. Fagan, C.S.R. #8764 RPR 1 indication that he had any intent to threaten them at all. 2 Not based on any of this evidence. 3 So based on that, and because the case law that, you 4 know, your Honor has -- is aware of regarding planned 5 parenthood, that you can make political speech, that you can 6 address your concerns, you can say some pretty lousy things 7 about an organization, for example, Mr. Fresne, he wanted to 8 take the organization down. It's a political speech. Deputy 9 Rowe, his information, Scientology, he -- yeah, he wanted to 10 make -- Miscavige, he's the head of the church. If people 11 couldn't make political comment about the head of a church, 12 late night T.V. might be curtailed. The planned parenthood 13 case made it pretty clear that you can, you know, if you're 14 not directly by these people making these kind of comments, it 15 would indicate that this is apparent, is going to happen right 16 now. It's political comment. It is a report after the fact, 17 not a threat. Isn't, "Look, world, this is what I'm doing." 18 "Anybody who has the time, please flip to this site and read 19 what I am doing," that's what this is, political comment 20 protected by the First Amendment. There is no threat here, 21 your Honor. 22 Thank you. 23 THE COURT: Counsel? 24 MR. SCHWARZ: Thank you, your Honor. 25 I'm sure the Court's well aware of the standard with 26 which to judge an 1118.1, your Honor. The People just have to 27 produce some evidence that supports our theory, your Honor. 28 And given the -- given the latest case law that the People 355 Amanda M. Fagan, C.S.R. #8764 RPR 1 cite in their motion for proposed jury instructions, you can 2 take into account the surrounding circumstances, you can take 3 his odd and peculiar conduct, chasing buses, taking down 4 things, as a totality to the circumstances, your Honor. 5 Moreover, the postings themselves reveal threats. 6 Now, with all due respect to Counsel, he's talking about David 7 Miscavige. But as I recall, your Honor, there are postings in 8 there that talk about Gold Base, and they talk about 9 Scientologists as a totality. These people, your Honor, they 10 -- they work at Golden Era, and they are Scientologists. They 11 have a reasonable fear that they are talking about them, 12 because Mr. Henson goes to Golden Era. I'm sure that I can't 13 -- the People can't bring a case against Mr. Henson for the 14 fear of Scientologists in Sweden. But I sure can do it in 15 front of Golden Era. 16 Your Honor, on that regard, your Honor, the threats 17 themselves, Mr. Henson has told two officers out of his own 18 mouth that he is trying to make them paranoid. He knows that 19 what he is writing is getting to them. He's talking about 20 psychological warfare. I am confused that Mr. -- that 21 Mr. Harr could even make that argument, that knowing that his 22 client absolutely knows that the -- that what he is doing is 23 achieving his objective, and now he complains that it's 24 working, and -- but if it's working, there is no reasonable 25 fear for that. Your Honor, it's fairly clear that the People 26 have made a prima facie case in this, and it should go to the 27 jury. 28 So the People would submit. 356 Amanda M. Fagan, C.S.R. #8764 RPR 1 THE COURT: All right. I think with respect to the 2 case referred to by the defense, that case is distinguishable 3 in that this was a -- this is a -- not a threat, but this is a 4 concern for a threat that the witnesses had. And whether it's 5 reasonable or not is not for the Court to determine, it's the 6 trier of fact that should determine that. So the Court is 7 going to deny the 1118 motion and we'll proceed. 8 Any -- are you going to offer an affirmative 9 defense? 10 MR. HARR: No, your Honor. 11 THE COURT: All right then. Let's be prepared to 12 make our final statements. 13 MR. SCHWARZ: Your Honor, what time is the -- can 14 the Court give the People an additional five or ten minutes, 15 your Honor? 16 THE COURT: Yeah. When the jury comes back tell 17 them we're going to take another ten minutes. 18 MR. SCHWARZ: So to what time, your Honor? 19 THE COURT: 10:50. 20 MR. SCHWARZ: So the court's giving the People 20 21 minutes? 22 THE COURT: Yeah. 23 MR. SCHWARZ: Thank you, your Honor. 24 THE COURT: I'm giving everybody 20 minutes. 25 MR. SCHWARZ: Thank you, your Honor. 26 MR. HARR: Your Honor, may I stay in the courtroom 27 during the recess to finalize my thoughts on closing argument? 28 THE COURT: Well, it's -- are you going to be here, 357 Amanda M. Fagan, C.S.R. #8764 RPR 1 Mac? 2 DEPUTY: No, your Honor. Unless you instruct 3 otherwise I was going to kick everybody out of here so I can 4 also take a break. 5 THE COURT: Well -6 MR. HARR: I'm out of here. 7 THE COURT: Yeah. Is there an attorneys' conference 8 room? 9 MR. HARR: Yes, your Honor. 10 MR. SCHWARZ: Yes, your Honor. Thank you, your 11 Honor. 12 THE COURT: All right. 13 (Recess taken.) 14 (The following proceedings were held in open court 15 in the presence of the jury.) 16 THE COURT: Sorry to keep you waiting a few minutes, 17 ladies and gentlemen, but we had some things that we had to 18 take care of. 19 The People have now rested their case. The defense 20 as you well know does not have to put on a case. In this 21 instance the defense is not going to put on a defense, relying 22 instead on the state of the evidence. So in a sense we have 23 heard -- not in a sense, we have in fact heard all of the 24 evidence that we're going to hear in this case. 25 The next phase of the trial is final argument. Each 26 side will have an opportunity to discuss with you their 27 version of the evidence that's been presented. As I indicated 28 very early on, what the attorneys have to say is very 358 Amanda M. Fagan, C.S.R. #8764 RPR 1 important; however, it is not evidence. You have heard all of 2 the evidence. But it might serve for you to listen carefully, 3 and perhaps there might have been some bit of evidence that 4 you didn't hear, that you misunderstood, or that gives you the 5 -- the attorney may give you a perspective that you hadn't 6 considered before this. 7 Since the People have the burden of proving the 8 defendant guilty beyond a reasonable doubt, they will have an 9 opportunity to speak to you twice. That is, the district 10 attorney will begin opening argument, and then at the close of 11 defense attorney's argument the district attorney will have 12 another opportunity to talk to you. 13 With that I will -- Mr. Schwarz, if you're - 14 MR. SCHWARZ: Your Honor, Mr. Harr has something - 15 MR. HARR: Your Honor, I think there is the matter 16 of the stipulation. 17 THE COURT: Yes? 18 MR. HARR: And Counsel told me that that -- may I 19 approach the bench, your Honor? 20 THE COURT: Yes, with the reporter, please. 21 Excuse us just a moment. 22 (The following proceedings were held at sidebar.) 23 MR. HARR: Counsel indicated that maybe that should 24 be read before the jury instructions. I heard what the Court 25 said. If that's still the Court's intention, I know you 26 mentioned there isn't any other evidence, and I thought that 27 might reflect on the statement. There is more evidence 28 because there is the stipulation. 359 Amanda M. Fagan, C.S.R. #8764 RPR 1 THE COURT: All right. I'll read it. Doesn't make 2 any difference. 3 MR. HARR: Thank you, your Honor. 4 THE COURT: Which one am I reading? 5 MR. SCHWARZ: This one. 6 THE COURT: Okay. 7 MR. HARR: Thank you, your Honor. 8 (The following proceedings were held in open court 9 in the presence of the jury.) 10 THE COURT: Okay. So wherever we were, let's get 11 back there. 12 However, before I turn it over to the attorneys, the 13 attorneys have stipulated, which means agreed, to a fact. And 14 when -- and when the attorneys agree to a fact you must deem 15 that as if it were proven in court. And that is, both Counsel 16 stipulate that Defendant H. Keith Henson had the right to be 17 in front of Golden Era Productions and had a right to lawfully 18 picket. 19 Okay. With that I'll turn that over to Mr. Schwarz. 20 MR. SCHWARZ: Thank you, your Honor. 21 Well, I told you before there were only a couple of 22 times I get to talk to you directly, and this is one of them. 23 First of all, I want to take this time to thank you 24 for being jurors. We have missed a Monday, and I'm sure it 25 interfered with your weekend. And I appreciate the fact that 26 all of you look very patient and you were -attentive to this 27 case. And that's important, because any time when a person is 28 accused of a crime, they require, as you would want, to have 360 Amanda M. Fagan, C.S.R. #8764 RPR 1 the jurors to be as attentive as you were. 2 Well, let me start with what this case is not about. 3 This case is not about the First Amendment right to free 4 speech. It is not about picketing. And it is not whether or 5 not the Church of Scientology is good, bad or indifferent. I 6 would still be here if the victims had been Jewish, Muslim, or 7 Catholic. So that's what this case is not about. Also, it's 8 not about I.C.B.M.'s, either, or cruise missiles. 9 What it is about is threats against people. That's 10 what the case is about. Now, His Honor read to you in the 11 beginning of the case that the defendant has been charged with 12 three counts. First count is -- now, these are numeric 13 numbers and they mean nothing to you, so I will give you names 14 for what they are. 15 The first one is 422, violation of Penal Code 16 Section 422. And 664/422 and 422.6. Now I'll give them 17 names. 422 is terrorist threats. Now, that conjures up 18 images of Beruit or the Twin Towers bombing, but that's not 19 what it means. It just means a threat that causes someone 20 terror, that frightens people. That's what Count One is. 21 Count two is 664/422, is the attempt, the attempt to 22 do the exact same thing, to cause to threaten, to attempt to 23 threaten and cause terror or frighten someone. 24 And the last count is 422.6. And that's essentially 25 defined as the interference with someone's rights guaranteed 26 by the Constitution, their civil rights, and in this case the 27 right to practice their religion without fear. Essentially 28 422.6 is a hate crime. 361 Amanda M. Fagan, C.S.R. #8764 RPR 1 Now, let's talk about the first count, and we'll go 2 count by count. The first count, 422, again I told you was 3 just threats that caused people to be afraid. Essentially the 4 elements are these: Number one, there has to be somewhat of a 5 threat. There has to be a threat. The person has to intend 6 there to be a threat. And lastly, that the victims have a 7 reasonable fear. However, the person doesn't have to have to 8 want to carry it out. There has to be no intention to carry 9 out the threat. Also, you can consider the surrounding 10 circumstances. You can consider the surrounding circumstances 11 about how you determine whether or not there was a threat. 12 Well, in this case there is no question that 13 Mr. Henson made those postings. There is no question that - 14 well, let me back up a little bit. I would submit to all of 15 you, each and every one of you, that on the first count, on 16 all -- not all of the counts, but on the first count I have 17 proved all of those elements. Now you're asking yourself, 18 "How did you do it? How did you prove them all?" 19 Let's start from the top, get back to the postings. 20 You all have heard the postings. You will get a chance to 21 read them. They were read to you. And I'm sorry it took so 22 long. It's the way the court works. We have to do the same 23 kind of, you know, present the postings, "Did you see it 24 before," and that's really tiring. I realize that. But 25 that's the way the court works. 26 So anyway, I digress. But the postings show that 27 there was a threat. But you don't -- now, Mr. Harr is going 28 to make a big deal about the fact, "Show me the threat, show 362 Amanda M. Fagan, C.S.R. #8764 RPR 1 me the threat." Again, you are going to have to use your 2 common sense and be able to see it all in context. And you 3 are allowed to do that. You are allowed to take the history, 4 you are allowed to take all the surrounding circumstances. 5 And you will be able to do that and see that, in fact, the 6 threat was there. 7 Well, moreover, what about, did Mr. Henson -- there 8 -- did he intend to scare the victims? Well, yes. You heard 9 testimony from Detectives Greer and Deputy Rowe that in fact 10 when they interviewed him he said, "I intended to make them 11 paranoid. I wanted to make -- I wanted to wage psychological 12 warfare," if you will. Furthermore, we know that he intended 13 to antagonize and threaten the victim. How do we know that? 14 Well, he's hanging over the tunnel. He's jeering at them. 15 He's running back and forth. Moreover, he's following buses. 16 He's taking down license plate numbers. He's taking photos of 17 these people. Absolutely he intends to scare these people. 18 Why do you need to take a photo of anybody that's not your 19 relative? Why take a license plate number of anybody that's 20 - 21 THE COURT: Excuse me, Counsel. Just a moment. 22 Thank you. I'm sorry, Counsel. 23 MR. SCHWARZ: Thank you, your Honor. 24 Moreover, not only did - 25 THE COURT: Go ahead. 26 MR. SCHWARZ: Thank you, your Honor. 27 Mr. Henson -- you have to look at this. You can't 28 look at this case in a vacuum, which Mr. Harr is going to ask 363 Amanda M. Fagan, C.S.R. #8764 RPR 1 you to do. He is going to ask you to look at something as 2 individual instances or occurrences. And that's not something 3 you can do in this case. In fact, the complaint you read 4 indicates that the -- that the date of the -- the date of the 5 crime occurred between May, 2000 and September of 2000. 6 Now, it's interesting that I happen to -- in my 7 previous life a long time ago I was a worker's compensation 8 adjustor. And at that time there was a thing called 9 cumulative trauma. It's like when the people type too long on 10 a keyboard and they get what's called carpal tunnel syndrome. 11 If you ask somebody about, you know, "Well, when did that 12 injury occur," they have pain in their hands and you ask them, 13 "When did that occur, which key stroke was it," no way. How 14 would they know? But you know for a fact that because their 15 entire job is typing on a keyboard that in fact there's pain 16 there. They couldn't tell you which key stroke it was, but in 17 fact we know that they were injured. So this is kind of how 18 this case goes. 19 This is the date of -- the date of the complaint is 20 from May, 2000 to approximately September of 2000. So 21 everything in between constitutes the threat. So with that in 22 mind, let's go about -- let's go through some more about what 23 I have proven to you. The victims themselves knew about 24 Mr. Henson's history. And again, like I said, you can't take 25 this -- you can't look at this in a vacuum. Mr. Henson is not 26 your normal person. Not even close. I mean, who makes pipe 27 bombs? Who teaches 7th graders and 8th graders about pipe 28 bomb -- pipe bombs? Who has knowledge about guidance systems? 364 Amanda M. Fa an C.S.R. #8764 RPR 1 Who knows how to make an explosion out in the desert the size 2 of an atomic bomb? Who knows -- who has a cannon? Who has a 3 cache of weapons? Most people don't. Most people don't at 4 all. And these are the things that Mr. Henson described, was 5 proud of, and in fact, he used that to frighten his victims 6 because they knew about it. They knew about his history. 7 Were the victims in reasonable fear? You have to 8 ask yourselves, were they in reasonable fear? Absolutely they 9 were. Of course they were. Who of you can say, who of any of 10 us can say that having someone be at your apartment, be at 11 your work, chase you in a vehicle, take pictures of you, and 12 talk about your religion with utter disregard and pure hate 13 and talk about destroying them utterly, annihilating them, if 14 this were -- I just -- I'm -- it's unfathomable to me how 15 anybody could think that you would not be afraid about the 16 type of person that we're dealing with right now. 17 I'll give you an example about the threat. If I - 18 let's all take a -- pretend for a moment that animals can 19 talk. You're Dr. Doolittle. And one day you encounter an 20 animal, and he says, "I'm going to rip you limb from limb. 21 I'm gonna tear you up." And that's what he says to you. 22 Well, how would you respond? Your answer would be, "Well, 23 depends on the animal," right? Example, if the animal - 24 well, you're not going to be able to see this because it's 25 nice and dark. If the animal looked like this, you'd laugh. 26 You'd talk to that cat and say, "What are you talking about? 27 You're a kitty cat, I'll kick you across the floor. What are 28 you thinking about?" But if the animal looked like this, 365 Amanda M. Fa an C.S.R. #8764 RPR 1 absolutely you'd be afraid if that animal said he was going to 2 rip you limb from limb. What's the difference? Let's say 3 that animal said with the same intonation, the same voice 4 inflection, same words exactly, why are you afraid of one in 5 one instance and not afraid in another? Simple. It depends 6 on the animal. One has the ability. One can do it. One 7 cannot. That's why you're afraid in one instance and you're 8 not in another. 9 Well, if Mr. Henson -- if I talked about making 10 bombs, or making I.C.B.M.'s, or something like that and 11 whatnot, and I told you, "I'm gonna blow this place up," you'd 12 think they were the ravings of some crazy guy, but you 13 wouldn't take me seriously. You'd say, "Look at him. He's a 14 nerd. How are you going to do that?" But if in fact you had 15 knowledge, though, that I had -- that I could make bombs, that 16 in fact that I knew about guidance systems, that I have blown 17 things up, that I have followed buses, or the fact that I have 18 -- that I own even a patent on how to launch rockets in outer 19 space, that might give you pause for concern. It might give 20 you pause for concern if you knew I had a cannon. I mean, 21 these are the things that Mr. Henson has talked about. 22 And can we say -- and so now does everyone track 23 with me? That it depends on the person. I'll give you 24 another example. Make it easy for you. And I'm not -- please 25 don't hear that I'm talking about Mr. Henson in this case. In 26 California there is a law called, in the Penal Code, assault 27 with a deadly weapon. I'm sure all of us have heard that. 28 And I'm sure in the many years that you have spent watching, 366 Amanda M. Fagan, C.S.R. #8764 RPR 1 or if you've watched any television, they said, "His hands 2 were registered deadly weapons." Well, and because this 3 person's a car auto expert or something like that. Well, it's 4 possible to do that. If someone has the knowledge to be able 5 to break you limb from limb and in fact does that, it's 6 possible that you can charge that person with assault with a 7 deadly weapon, their hands. What makes them different? It's 8 their knowledge. 9 Same thing. Mr. Henson has that knowledge. He is 10 capable, and that is why -- and what's more -- and that's why 11 you can see that the fear is genuine and should be. I think 12 it's -- how do I put this? If it were anybody else we 13 wouldn't be here. But it's Mr. Henson, and he abuses his 14 knowledge. He abuses the fact that they know what he is 15 capable of. That's why he talks about psychological warfare, 16 making them paranoid. Why would anybody -- and how do we know 17 that? Why would anybody go to a concrete place and ask them 18 if they're making bomb shelters? Why would anybody do that? 19 Unless they absolutely knew that that's exactly what they were 20 -- what he was trying to accomplish? And he's done it. He's 21 proud of the fact that he makes them paranoid, makes them 22 afraid just to go about their daily business. In fact, he 23 wants to check on his progress report. He wants to go and see 24 if they're in fact doing what he thinks that they should be 25 doing, being afraid. He goes down to a concrete place and 26 asks the guy, "Are they making bomb shelters?" Wanting to 27 know, "Hopefully they are, maybe I'm having an effect on 28 them." That's a sign of a pretty sick puppy. 367 Amanda M. Fagan, C.S.R. #8764 RPR 1 Well, let's talk about the other elements real 2 quick. The other one is attempt. The 664/422, that's the 3 attempt. Essentially attempt is, if you don't think he -- if 4 you do think he tried to do it but was somewhat unsuccessful, 5 then you might find him guilty of that. If he tried but he 6 didn't quite get there, then that's the attempt. 7 The last one is the 422.6, that is the interference 8 with someone's right that's guaranteed by the Constitution. 9 And in this case that right is the freedom of religion. What 10 I have to prove is this: That there was a threat that 11 interfered with the constitutional right, and it has to be 12 against a person or a group of persons, that they have the - 13 that they have the ability to carry it out. In this case they 14 have to have the ability as opposed to 422. The person 15 threatened force, because of the victims' right in this case, 16 their religion, with the specific intent to deprive that 17 person of that right. So let's go through them one by one. 18 I submit to you that I proved that, too. Well, how 19 do I say so? Much of the same things that I have argued 20 before apply here. Essentially the difference is, did it 21 prevent them from doing their -- or exercising their 22 constitutional right? Absolutely it did. We've heard 23 testimony from the three victims that said they couldn't get 24 to their chapel. They were afraid of him. He was hanging 25 over the tunnels, jeering at them, running back and forth like 26 a crazy man. And this person -- so they weren't allowed to 27 get from there, what was pointed to as their place where they 28 eat to their chapel. They had to be re-directed almost a half 368 Amanda M. Fa an C.S.R. #8764 RPR 1 mile to get to the same place. 400 feet, 3,350 feet. But 2 that alone, while that in and of itself is interference with 3 someone's religious, with their constitutional right, that 4 alone is not only what happened. 5 You have heard testimony, mentionings, that the 6 entire organization, the entire complex there at Golden Era 7 Productions is dedicated to one thing. They are not a 8 commercial operation. What they do is the advancement of 9 their religion. How they go about it is not really material, 10 but the fact is, they make these tapes to advance their 11 religion. So I would submit anything that they do is the 12 practice of their religion. And so if they can't get to an 13 audio studio, or if they can't get to somewhere to eat 14 anywhere on that complex, that, too, is interference with 15 their religious beliefs. 16 Now, again, does Mr. Henson have the ability to 17 carry it out? Like I said in 422, we don't have to prove 18 that. But in this one they do. Yes, he has the ability to 19 carry it out. He has the knowledge how to do it. He can make 20 pipe bombs. He can blow up stuff. That's what Mr. Henson can 21 do. 22 The person threatened the force, this is the next 23 element, because of the victims' religion. Well, he ain't 24 doing it because they ride red bicycles. He's not doing it 25 because they, you know, they jet ski or something other like 26 that innocuous that he doesn't believe in, or -- none of that. 27 The only reason why he is antagonizing them is because they 28 are Scientologists. It's because of their religion. For no 369 Amanda M. Fagan, C.S.R. #8764 RPR 1 other reason. He wants to destroy them or wants to annihilate 2 them, and he is interfering with it purposely. He tells you 3 that. 4 How does he tell you that? He says, "You should 5 have seen them when I came up, they ran like cockroaches." 6 He's proud of it. You know, it's interesting, Mr. Henson's, 7 you know, through his -- through Detectives Greer and Deputy 8 Rowe says, "It's a joke, it's a joke." I didn't see any of 9 you laughing. I wasn't laughing, either. I saw a person 10 crying. I saw someone scared. I didn't see anybody joking. 11 This is no laughing matter. Someone is abusing their power, 12 their knowledge, to scare people. That's what's happening 13 here. 14 It's funny, you know, I think about, you know, just 15 common day life about, "It's a joke," comes up a lot. Maybe 16 you talk to your friends, or your colleagues, and you go up to 17 them, and they got a new haircut or something else, or they 18 got a new shirt. And you go up and say, "Nice shirt," you 19 know, or, "Man, that's a bad looking hair cut," and you -- you 20 think you're -- you know, you actually mean that. And then 21 you see their eyes well up, or you see their disposition get 22 solemn, and what's the first thing you say? "It's a joke." 23 "Just kidding." "It's a joke." That's what Mr. Henson's 24 doing. That's exactly what he's doing. He is by virtue of 25 the fact that we are here and what's going on, he's doing all 26 of this stuff, he knows it's wrong. When he gets caught what 27 does he say? "It's a joke." It's no laughing matter. 28 No one should be afraid, members of the jury, to go 370 Amanda M. Fagan, C.S.R. #8764 RPR 1 to church. No one should be afraid to do what they want to 2 do, go to the mall, whatever. They should never have to think 3 twice. If you have to think twice about anything, what do we 4 call that? We call that a crime. 5 Let me end on a couple of notes here. I'm not going, 6 to take up all your time. But Mr. Harr will probably raise 7 this about reasonable doubt. In the beginning of this case I 8 told you that evidence is like pieces of a puzzle. You get 9 them, sometimes they're out of sequence, and it's up to you to 10 be able to put them together at the end of the case. Well, 11 when I put on my first witness in my case you may have gotten 12 pieces sort of like this. Let me zoom back out. Here we go. 13 It may have looked something like this. You got little 14 pieces, you don't know what it is. Have no idea. But you're 15 patient. Another witness comes on, and you're getting more 16 pieces of the puzzle. So you put them together, still you're 17 not sure what it is. It looks like something is here, but you 18 don't know, not yet. As pieces get more and more full, it 19 starts to become rather clear of what this is. At some point 20 it becomes absolutely clear what it is. It's a mountain. But 21 did you notice, members of the jury, that not all of the 22 pieces are filled in? You don't need them all. But you 23 absolutely know that's a mountain. And then more and more 24 becomes clearer, and then at some point it becomes a complete 25 picture. 26 Well, members of the jury, I'm sure if you've ever 27 watched T.V. shows you've heard "beyond a shadow of doubt," 28 "beyond all possible doubt." Well, that's not the standard, 371 Amanda M. Fagan, C.S.R. #8764 RPR 1 in California or any of the 50 states. It has always been and 2 always will be "beyond a reasonable doubt." 3 What does that mean? Well, in effect, it means that 4 it is at some point you become convinced that what you see is 5 what you get. This, members of the jury, even with all of its 6 missing pieces, there is no reasonable doubt that it is not a 7 mountain. This is somewhat higher of a standard, and this is 8 all possible doubt. Now, I would submit that I have proven my 9 case beyond all doubt, but that's not my burden. My burden is 10 back here, where you still know it's a mountain and can say 11 beyond a reasonable doubt that that's a mountain. That's a 12 simple illustration. 13 I'll give you another one. I use this all the time 14 because it's pretty helpful. It's like Groucho Marx says, you 15 know, he never had his own joke. He'd steal from someone 16 else, and I got this from somebody else. 17 Most of you drive. I'm sure all of you do. And 18 when you drove up here to State, if you drove on Florida you 19 stopped at 19 stop lights probably. And you probably -- or 20 traffic lights. And probably, you probably stopped at one of 21 them. Well, when the light turned green I dare say that I 22 would reason to bet that none of you got out of your car, 23 looked at the other light to make sure it was red, got back 24 into your car, and drive through the intersection. Because 25 it's possible that all four lights could turn green, and you 26 could have a four-way collision. Yeah, that's possible. But 27 that's not reasonable. You made a life decision based on 28 beyond a reasonable doubt. That's how it works. 372 Amanda M. Fagan, C.S.R. #8764 RPR 1 So looking at this case in that frame of mind, you 2 can see that the People have met its burden on every element 3 and in fact in every way. I told you at the beginning of my 4 opening statement that I was going to make a contract with 5 you. There were certain things I was going to prove to you, 6 and I've done them all. I've shown that Mr. Henson is 7 antagonistic toward the church. I've shown Mr. Henson made 8 various postings that relate to the church, specifically 9 Golden Era. I've talked to you about the fact that he is an 10 expert in explosives, owns a cannon and all sort of various 11 things. I've proved to you every one of those, everything 12 that I said I would do I've done. I've fulfilled my end of 13 the bargain. Now it's time for you to fulfill your end of the 14 bargain and convict Mr. Henson of all three charges. Thank 15 you for your attention. 16 THE COURT: Counsel? 17 MR. HARR: Your Honor, before I start my 18 presentation could I please retrieve Exhibit -- Exhibits 28 19 and 29? 20 THE COURT: Sure. 21 MR. HARR: Thank you, your Honor. 22 Good morning again, ladies and gentlemen. 23 I think we can probably call this case the case - 24 THE COURT: Counsel, I can't hear. 25 MR. HARR: Yes, your Honor. 26 THE COURT: Please speak up a little bit. 27 MR. HARR: I believe we could call this case the 28 case of the missing thread. 373 Amanda M. Fagan, C.S.R. #8764 RPR 1 THE COURT: Counsel, I still can't hear you. If you 2 would speak up - 3 MR. HARR: I'll try to do better, your Honor. 4 THE COURT: Thank you. 5 MR. HARR: When we first got together on this case, 6 we had some discussion about people wearing certain kinds of 7 shirts. Remember that discussion about people wearing certain 8 kind of shirts? Maybe they had a T-shirt on. All right, 9 well, right now Mr. Henson is wearing a T-shirt that says 10 "citizen." And the district attorney would have you take that 11 shirt off. He would have you put on a shirt that says 12 "terrorist." And I believe that based on the evidence that 13 you've heard so far, there isn't anymore, that that shirt 14 doesn't fit, that the shirt that he is wearing right now fits 15 just fine. 16 We didn't really hear too much about the evidence in 17 this case. I think I'll spend a little time talking about the 18 evidence in this case. I'm not going to talk about a tiger, 19 because if Mr. Henson brought a tiger out to Golden Era that 20 would be a whole different case. 21 We start out, I believe, with Mr. Petty. Mr. Petty 22 saw Mr. Henson out there walking around. Some other people 23 have showed up and they did a few things. Mr. Petty doesn't 24 remember exactly what. And then he left. 25 And then we called Mr. Hoden. Mr. Hoden obviously 26 had some substantial things to say, and Mr. Hoden is obviously 27 a very pivotal person in this whole process, because Mr. Hoden 28 is the manager of Golden Era. He is the general manager of 374 Amanda M. Fagan, C.S.R. #8764 RPR 1 Golden Era. He told two of his, I'm going to call them 2 employees, we could call them fellow Scientologists, that 3 certain things happened. But he left out kind of an important 4 thing, didn't he? He forgot to tell them that Scientologists 5 regularly go to Mr. Henson's home and that they regularly go 6 to his wife's work -- place of employment. Here's this 7 alleged guy that's so scary, but we don't tell them that 8 people go to his house every day and do anything to and he 9 doesn't do anything to them. They go to his wife's work every 10 day and he doesn't do anything to them. He stands out there 11 with a picket sign. 12 Mr. Hoden also said that he testified against 13 Mr. Henson in 1998. He was trying to get a restraining order. 14 And he indicated at that time that Mr. Henson had indicated 15 yes, he did -- he would like to see Scientology go away. He 16 would like to see Scientology go away. To use an analogy like 17 Mr. Schwarz says, maybe some people would like to see 18 Christianity go away. Don't we know there are a lot of people 19 that don't let Christians practice? If the standard was "I 20 don't want you to practice your faith," we wouldn't be here. 21 What we're looking for here, and what doesn't appear, is the 22 threat. 23 I think this map is a good place to start. Okay. 24 Obviously there was a lot of construction going on here. They 25 had to build this basically out of nothing. What the district 26 attorney is trying to have you do is say that based on all 27 this stuff that we're dredging up from ten years ago, 20 years 28 ago, three years ago, four years ago, that when you take it 375 Amanda M. Fagan, C.S.R. #8764 RPR 1 all together it amounts to a threat. That's not a threat. A 2 threat is, "I'm threatening you." I come up to you and I 3 threaten you. Or I use your name. "I am threatening 4 Mr. Hoden." Did we see that? None of these reports that have 5 been referred to and which you'll be reading indicate that any 6 of these people that testified were mentioned by name. 7 And we also heard when we first got together that 8 just because you don't like a law, that doesn't mean you 9 shouldn't abide by it. One instance was the I.R.S. Well, 10 maybe I don't like to pay my taxes, but I think maybe I 11 should. 12 What is Mr. Henson doing? He is making himself 13 known to the world. He is putting himself on a site where 14 people go. He's not aiming this at Scientology. This is 15 where people get together on the internet and exchange ideas. 16 That's not a threat. There's not a threat. Did he send it to 17 Golden Era? No, he didn't. He didn't send it to Golden Era. 18 Apparently somebody in Los Angeles who monitors that 19 particular web site out of the perhaps, I don't know, hundreds 20 of thousands that there are pulled some information off there. 21 Now, I believe Mr. Hoden's testimony was that he got 22 this book from Los Angeles. I'm not exactly positive on that, 23 but I believe that's what he said. Well, Ms. -- one of the 24 victims, Ms. Dezotell, I hope I pronounced her name correctly, 25 that he had that book at least a year before the so-called 26 relevant period. So that wasn't news to him. It wasn't news 27 to him. 28 He also knew, Mr. Hoden knew that Mr. Henson was not 376 Amanda M. Fagan, C.S.R. #8764 RPR 1 a proponent, he was in fact a detractor of Scientology. He 2 knew that at least by 1998, and he knew that Mr. Henson was 3 going to try to remove Scientology from existence if possible. 4 And we read the part of the testimony -- or not testimony, but 5 the transcript of the actual recorded interview that Detective 6 Rowe had, or excuse me, Deputy Rowe had with Mr. Henson. And 7 his stated intent was, "I want to do this by picketing." And 8 we have heard the stipulation that says he can be out there 9 picketing. He can be out there picketing. Glaring, glaring, 10 glaring. Okay. I go to the D.M.V., I'm standing in line, I'm 11 glaring. I'm standing in Hemet, it's 110 out, the relevant 12 period is the dead of summer. Mr. Henson is standing out 13 there in the heat. It must have been a glare. Couldn't have 14 been it was like 110 and I'd like to get a drink of water? 15 He goes over and he observes where these people 16 live. Now, is that somewhat of a -- something that I might or 17 something you might do? Probably not. Was he arrested for 18 taking license numbers? Wasn't he picketing the day that he 19 got arrested and the day that Mr. Hoden refused to do this - 20 the citizen's arrest? Even though Mr. Hoden said he didn't, 21 the police officer obviously contradicted that. 22 I don't know if you can see this. Maybe I need to 23 focus it better. If you can't, I'll get the actual pictures. 24 But there are some sharp things at the top of that fence. You 25 are going to see those when you get in and start your 26 deliberation. You look at those pictures and you see if 27 somebody like yourself might be hanging over the top of that 28 fence with those things poking in your stomach. Take a real 377 Amanda M. Fa an C.S.R. #8764 RPR 1 good look at those exhibits. I don't think that monitor does 2 it justice. But that's a fact. 3 Okay. So what do we really have going here? We've 4 got a really effective picketer. Here's a guy, Mr. Hoden's 5 testimony was, that basically the guy has been picketing off 6 and on for a number of years probably since 1995. Wasn't any 7 problem, because he wasn't doing anything. He'd go out there 8 once in a while, no big deal, wasn't having a whole lot of 9 success I suppose, or at least wasn't creating, you know, a 10 real presence there. And then what happened? What happened? 11 Mr. Rowe's testimony was that around the end of May, first 12 part of June, Mr. Henson started going out there every day. 13 Went out there every day. He wasn't sitting in a bunker with 14 an I.C.B.M. or a missile launcher. He wasn't sitting anywhere 15 with bombs, or rifles, or cannons. He was right out there 16 where they could see him, keep their eye on him all the time. 17 I guess if a threat was the problem, I guess we could not, 18 wouldn't -- why did we have to go through a metal detector 19 when we came here today? Are you all terrorists? Have you 20 all been in the military? Do you have some knowledge of 21 weapons or whatever? Why do you all have to go through 22 weapons detector? Are you all weapons people, have weapons in 23 your pocket? If you had a purse, you had to put it through 24 the little x-ray machine. 25 What did Mr. Hoden do as the manager of the base? 26 He got a couple of people to stay within five to ten feet of 27 Mr. Henson every time he came out there. So if he had a 28 cannon, if he had a gun, if he had a grenade, which he has 378 Amanda M. Fagan, C. S. R. #8764 RPR 1 never threatened to use. There is nothing that you will find 2 in any of those reports that Mr. Henson made after the fact 3 that will say, "I got a gun, I can't wait to go to Golden Era 4 or some other place to use it," or, "I've got a cannon." None 5 of that's in there. None of that's in there. He didn't 6 threaten anybody. Just happens to be that he is a very public 7 person. And he'll tell anybody that will listen to him what 8 he thinks on certain issues. 9 Okay. So I'm the general manager of Golden Era. 10 And I've got two ways for some of my people to get to lunch. 11 This is the main tunnel, auxiliary tunnel. Okay. What was 12 one of the precautions, other than, you know, I could have put 13 up, like, a little league net. Could have put up a little 14 league net, I could have put up an extension on my tunnel as a 15 protective measure like what happens in other businesses, what 16 happens in the court when they have metal detectors. But he 17 chose to not do that. Instead he had a real human screen 18 throughout that Mr. Henson couldn't do anything out there. If 19 he made a move he was going to get tackled. You saw 20 Mr. Petty. He is not a small person. He's a very big, 21 experienced guy. Mr. Henson, I don't know, he doesn't look 22 like he pumps iron to me. Maybe you think he does. I don't 23 think he could have taken Petty on a bet. And if there was 24 another guy out there, no way. No way. 25 Okay. Where did Mr. Hoden say he put the tarp? He 26 put it there. That's the auxiliary tunnel. That's not the 27 main tunnel, right? So if I put it here, then my people can't 28 see the problem. If I put it over here, I can make it look 379 Amanda M. Fagan, C.S.R. #8764 RPR 1 like I'm a victim. Why would you put this over here? 2 Ms. DuFresne, she came in here -- or one of the two 3 witnesses, excuse me, Ms. Dezotell or Mr. Wagoner, one of the 4 two or both, didn't even remember seeing the tarp. They 5 didn't remember seeing the little pointy jobs that you are 6 going to see when you get in there on the fence. Okay. And 7 Ms. Dezotell didn't even care what the sign said. Didn't care 8 what the sign said. It could have said something like, "I'm 9 going to threaten you." It obviously didn't. 10 You don't have any film of him hanging on a fence. 11 This is a movie studio. Mr. Hoden said they have hand-held 12 cameras. You don't have one ounce of film that Mr. Henson did 13 anything wrong. You don't have one piece of film, one 14 picture, from a movie studio. He's out there 40 days 15 straight, and you don't have anything, nothing. 16 So why did he put the tarp over here? Church is 17 over here. Chapel's over here. Let's put the tarp over here. 18 That way when we're running him around, because I'm the 19 manager and my stats are going down. I'll have him go over 20 here, and that way they can't see the picketer and it will 21 make it look like we're really having a problem up here when 22 you could put the tarp up here and just walk right through 23 there. 24 The Great Mambo Chicken. Okay. That's a book 25 that's ten years old. A book that's ten years old. They're 26 building a case here. They're trying to build a case to make 27 it look like there should be a threat. Where is the threat? 28 This is not pretty. This case is not pretty. 380 Amanda M. Fagan, C.S.R. #8764 RPR 1 Mr. Henson goes out there and says, "Look, I don't like 2 Scientology." For whatever reason, reasons that we can't go 3 into, "I don't like it." "I don't like it. I'm going to go 4 right out there and I'm gonna tell you right to your face, I 5 do not like it." Most of us wouldn't do that. Most of us 6 don't feel that strongly about anything. He does. 7 So if I were to take a general sample of the 8 population, say everybody in the Marine Corps, stand over 9 there, everybody who was in explosives, you go over there, I 10 would probably weed out a pretty good group. And if I wanted 11 to build a case against them I'd say, you know what, that 12 person has a lot of experience in explosives who was honorably 13 discharged from the Marine Corps, maybe served 20 years, but 14 he's got all this stuff and because he doesn't like to stand 15 in line at D.M.V. maybe we can build a case that he is a 16 terrorist, because maybe he'll stand out there with a picket 17 sign. He can say whatever he wants to on that picket sign. 18 He can say whatever he wants to. He can drive behind a bus on 19 a public road. He can stand in a residential neighborhood on 20 the sidewalk. He can do all these things. It's not against 21 the law. Not for the purposes of why we're here. 22 You might say, "Why didn't he get a restraining 23 order?" That's a pretty good question. Why not just go out 24 and get a restraining order? Because you can't shut a guy up 25 unless you put him in jail. And that's what they're trying to 26 do, they're trying to shut him up. Because he's good at it. 27 Why the heck would a guy from northern California who 28 obviously has people who want to picket his house in northern 381 Amanda M. Fagan, C.S.R. #8764 RPR 1 California, why would he drive all the way to Hemet to picket? 2 The People would have you believe that the reason he comes 3 here is because he's got some kind of beef with three people, 4 which obviously isn't going to show up in the reports made 5 after the fact. They're called history, they're not called 6 threats. This is a picketer's paradise. What do you have 7 here? The people have to go across the road to eat. You get 8 your message out. You get a chance to get your message out. 9 What else? Got a big curve in the road. People who come by 10 have to slow down and see what's on your sign. This is great. 11 And he's out there for 40 days in a little town by Hemet, San 12 Jacinto, and he's telling all kinds of people whatever it is 13 he's telling them. The cops are coming out there regularly, 14 and he's picketing, doing his things right in their face, 15 right in their face. He's not some guy hanging out in a 16 bunker, being anonymous. He's right there, "Look, I don't 17 like you." But not to individuals. He doesn't like the 18 organization. 19 Now, we heard, and you'll see in some of these 20 reports, that he wanted to make Mr. Miscavige paranoid, or 21 maybe he wouldn't mind making him paranoid. If in fact 22 Mr. Miscavige is the head of Scientology, which I have no 23 independent knowledge of that, if he is, fine. If he isn't, I 24 don't mean to be disrespectful in that regard. I am assuming 25 that that is the case based on the evidence. Mr. Hoden said 26 he was concerned because of that particular statement, among 27 other things. Well, there's no evidence at all that we have 28 any idea where Mr. Miscavige is. Maybe he's in Holland. 382 Amanda M. Fagan, C. S. R. #8764 RPR 1 Maybe he's in Los Angeles. We don't have any idea that he is 2 at Golden Era. No idea. 3 So what do we have here? We have a general manager 4 who is basically telling his people, you know, "Read this 5 thing," you know, "I'm your boss, read this thing." You know, 6 "You're scared, right?" "Ah," you know, "I guess." "Yeah, 7 I'm scared. Yeah." He made them scared. Keith Henson didn't 8 make them scared. Keith Henson didn't send any of that stuff 9 to anybody. Mr. Hoden made a case against Keith Henson. 10 Mr. Henson didn't make a case against himself. This was not a 11 threat. There's no threat there. What did he threaten to do? 12 Then we heard Detective Greer. Detective Greer, 13 okay. Video -- audiotaped Mr. Henson. Did you hear any tape? 14 If the tape existed, wouldn't they play it so there wouldn't 15 be any confusion about exactly what happened? 16 MR. SCHWARZ: Objection, your Honor. 17 THE COURT: Overruled. 18 MR. HARR: You don't have anything there. You have 19 his argument. 20 Okay. What did Detective Greer show? "I get this 21 guy in my office. We're all set up to tape people. They 22 don't know it. We lie to them. We tell them we're just going 23 to take a few notes." And then they want you to believe 24 instead of playing that tape that they're going to come in 25 here and believe Detective Greer when he's lying to 26 Mr. Henson. What right does he have to lie to Mr. Henson 27 about a stupid thing like that? And they didn't bring the 28 tape in. So where is the admission? There isn't any. If 383 Amanda M. Fagan, C.S.R. #8764 RPR 1 there was, we'd have heard it. 2 What about that ready mix thing? What the heck is 3 that? I think that's a real good issue. That was one of the 4 things Mr. Schwarz did get into. What the heck was with that 5 ready mix thing? Okay. Mr. Henson for whatever reason goes 6 out to some ready mix dispatcher and asks, "Are they building 7 a bomb shelter?" I don't know how you would even think a 8 dispatcher would know, because he's not an engineer. But 9 let's say that for some reason he thought that's the case. 10 Okay. And he was told no. No, they aren't, they're building 11 a sidewalk. Okay. So did Mr. Henson say, you know, "I got it 12 made now because they don't have a bomb shelter"? Or, 13 "They're gonna need one now, because now I know they don't 14 have one. Boy, they're going to need one." Did he say that? 15 No, he didn't. That would be a threat. Because it would be 16 fairly immediate, he would actually be able to carry it out 17 probably, I don't know. There's nothing to indicate in the 18 last ten years he's ever held explosives. And anything that 19 he had to do with explosives was in the nature of a safety 20 class. It was a safety class. 21 So we're building this big pile of stuff, and we've 22 got two people, certainly one in here, Ms. Dezotell, she was 23 crying, okay. Am I going to sit here and say she was taking 24 acting lessons and crying? No, I'm not. She was crying, 25 wasn't she? She was crying. She was scared probably, too. 26 Can I refute it? Probably not. I'm not in her head. How am 27 I going to do that? But how did she get scared? How did she 28 get scared? How did she get scared? Mr. Hoden forgot to tell 384 Amanda M. Fagan, C.S.R. #8764 RPR 1 her the good stuff. He forgot to tell her the good stuff. 2 The good stuff is, people go to his house every day, right in 3 his face, and he doesn't do anything about it. They go to his 4 wife's house -- or wife's business and in his wife's face, do 5 the same thing. Oh, I -- I forgot. I forgot to tell that one 6 part, that he's not violent at all, that he's a First 7 Amendment guy, that he can take it as good as he can .give it. 8 "You want to read my stuff, fine. You want to put your stuff 9 in my face and say I'm a religious bigot, I can live with it. 10 I can live with it. That's your opinion." That's not pretty. 11 But that's what's going on here. That's exactly what's going 12 on here. 13 As to the -- as to the actual charges, as to the 14 actual charges, threat, you read all those documents. My 15 initial inclination was to go through every one of them with 16 you. Every one of them. Every one of those reports and go 17 through them with you. You won't find any of the so-called 18 victims' names in there. You won't find anything in there 19 that constitutes a threat. And a threat isn't, like, 20 "Sometime before the next ice age I might shoot an I.C.B.M. at 21 you." Or even if you know that you have explosives expertise, 22 if you don't say you're going to blow somebody up, that's not 23 a threat. That wasn't a threat. I didn't even direct it to 24 you. Now, it may have been you say, well, you know, what he 25 knew that somehow somebody in Los Angeles was going to read 26 this internet posting and that somehow that person in Los 27 Angeles was going to farm down to Mr. Hoden and somehow 28 Mr. Hoden was going to farm down to certain people that were 385 Amanda M. Fagan, C.S.R. #8764 RPR 1 employed by them, and he was going to tell them to be scared, 2 and now they're scared and now we got a threat. That's not a 3 threat. That's not a threat. The People have to show that 4 Mr. Henson intended to threaten those people, that the threat 5 was real. 6 I believe Mr. Schwarz correctly stated that you 7 don't have to have the intent to actually blow something up. 8 But you do have to make a threat. You have to make a threat. 9 There's no threat. What's the threat? I posted it on the 10 internet. I didn't cite anybody by name. I said I wanted to 11 make one guy paranoid. We don't even know where he was. No, 12 you got Mr. Hoden, rightly perhaps, trying to take care of his 13 people. Nobody -- I'm not going to sit here and say Mr. Hoden 14 doesn't want to take care of his people or his family. That 15 would be completely out of line. I don't know that. I don't 16 know Mr. Hoden, and that's not my job. But if you know a guy 17 like Mr. Hoden knows Mr. Henson since at least 1998, and you 18 know that that was his stated intention, was the same thing in 19 1998 as it was in June of 2000, July of 2000, probably be in 20 -- you know, if we last that long, September of 2002, nothing 21 changed. Nothing changed. Except one thing. Mr. Henson 22 started being real effective with his message. And he was 23 real prominent, and he was real persistent. And they thought 24 he'd go away. They didn't start doing anything in May. They 25 didn't try to slow him down -- as far as we know he was 26 arrested in July. Every day. Every day. Getting his message 27 out, getting his message out. Mr. Hoden said that he didn't 28 refuse to arrest Mr. Henson. Deputy Rowe said he did. Deputy 386 Amanda M. Fagan, C.S.R. #8764 RPR 1 Rowe said he taped Mr. Henson's interview with him. If he 2 made all these admissions, why don't we just play them? 3 Because they aren't on that tape. Certainly don't want to 4 play what I just read to Deputy Rowe, "My goal is to overcome 5 the Church of Scientology with picketing." That isn't very 6 egregious, is it? Kind of makes you wonder where the threat 7 is, doesn't it? 8 Mr. Henson knew that thing was being taped. Deputy 9 Rowe said he told him. I believe that was his testimony. 10 Anyhow, he certainly knew it was being taped. So where is the 11 threat? Where is the intent to threaten? Where is the 12 specificity? Where is the necessary immediacy? It's not a 13 threat. When you try to dredge up a guy's entire past and the 14 most recent event that you have is about five years old, I 15 think that would be the patent, and say based on his 16 experience that's a threat? Because he didn't direct anything 17 to these people. obviously they were concerned, at least two 18 of them, that Mr. Hoden didn't fully disclose what the problem 19 was. 20 So it's a tough decision. Not a pretty case. 21 Nobody likes to be made uncomfortable by the place where they 22 live. But that's not why we're here. We aren't here to put 23 mountains together. We're not here to put cats together. 24 We're not here to talk about animals. We're trying to figure 25 out where the threat is. And if there isn't one, which we 26 believe there isn't based on the evidence you've all heard, 27 then you are going to be finding Mr. Henson is not guilty. 28 But I don't have to prove that there isn't a threat. 387 Amanda M. Fagan, C.S.R. #8764 RPR 1 I don't have to prove anything. Mr. Henson is presumed to be 2 not guilty. Mr. Henson doesn't have to put on a case. It's 3 the government's job, if they can do it, to change 4 Mr. Henson's shirt. 5 Now, you go through those 20 documents that were 6 intended to be reports. Mr. Hoden called them reports after 7 the fact. And you find where it says those three people were 8 targets. Or you find in the evidence where it says Mr. Henson 9 tried to direct this to them. It ain't there. And if it 10 ain't there, he ain't guilty. Simple as that. It isn't 11 there. 12 And I guarantee when you look at those pictures, 13 you're not going to be wanting to hang over the fence with 14 those things poking you in the stomach. Two of the witnesses 15 couldn't even remember they had things on the fence that they 16 go by every day. An important issue like that. Someone been 17 hanging on a fence, you look at those things. 18 So I'll finish up by saying this. You might not 19 want to have Keith Henson for your neighbor. Keith Henson 20 could handle you for a neighbor, but you might not want to 21 have Keith Henson for a neighbor. It's not against the law to 22 picket somebody. It's not against the law to drive on a 23 public street. Given the way that two of the witnesses were 24 told there might be a problem, it's reasonable to see why they 25 obviously were afraid. It's easy to see why that one lady 26 cried, why Ms. Dezotell was crying. But she wasn't given the 27 whole story. She wasn't given any of the good stuff. They 28 come right to his house, he doesn't do anything to them. He 388 Amanda M. Fagan, C.S.R. #8764 RPR 1 tries to stay away -- he doesn't go out there and hand out his 2 postings. They had to go through all kinds of channels to get 3 them. No, this guy is a First Amendment guy, not a bomber. 4 This guy is not a bomber. 5 And what about that Mambo Chicken? Maybe I should 6 finish up with that. That was a recreational thing that 7 happened sometime longer than ten years ago in a group setting 8 which was a contest. Which was a contest. Mr. Henson has no 9 convictions that you've been presented with - 10 MR. SCHWARZ: Objection, your Honor. 11 THE COURT: I'm sorry, I didn't hear. What was the 12 statement? 13 MR. SCHWARZ: Convictions - 14 MR. HARR: I said he hasn't presented with any 15 conviction evidence. 16 THE COURT: I don't know what that means. 17 MR. HARR: Well, he's a law-abiding guy. We don't 18 know how old he is, but - 19 THE COURT: Well, I'm going to sustain the 20 objection. 21 MR. HARR: Yes, your Honor. Sorry, Mr. Schwarz. 22 Okay. All right. This is all -- this is why we're 23 here. I'm not daring you to find the threat. I'm asking you 24 to look at the evidence and say you can't pile a bunch of 25 isolated incidents up that were two, three, four, five years 26 old and then say -- which are not directed at you, not 27 directed at anybody in particular. It's directed toward an 28 organization, and then your manager, your boss tells you to be 389 Amanda M. Fagan, C.S.R. #8764 RPR 1 scared. That's not a threat. That's a way to keep a guy 2 quiet. 3 Thank you. 4 THE COURT: Mr. Schwarz. 5 MR. SCHWARZ: Your Honor, it's 12:00. Did the - 6 THE COURT: I know what time it is. Let's conclude 7 with final argument. 8 MR. SCHWARZ: That's fine, your Honor, thank you. I 9 was just concerned about the jury, your Honor. 10 THE COURT: Anybody have to eat at 12:00 o'clock? 11 MR. SCHWARZ: Can we go? 12 THE COURT: Let's do it. 13 MR. SCHWARZ: Let's do it. 14 Members of the jury, I'm kind of shocked, quite 15 frankly, at the argument. Mr. Harr is saying that there was 16 no threat. But did you notice that Mr. Harr didn't say 17 anything about fear? He tap-danced around that. Almost 18 admits to the fact that they have fear. He wants to say that 19 there is no threat, and their fear somehow comes out of 20 nowhere. 21 Absolutely there is a threat. And that's the reason 22 why they're afraid. I told you in my closing argument first 23 time I came up here, a threat can be implied. You don't have 24 to come out and say, "I'm gonna get you." You don't have to 25 do that. And I'll explain. 26 If, for instance, you knew that I was an assassin, I 27 work for the Gambino crime family or some other Mafioso type 28 of organization. And however you found out, but you 390 Amanda M. Fagan, C.S.R. #8764 RPR 1 absolutely knew that I was. And you also found out that I 2 hated your guts, couldn't stand you. Now -- so one day I'm 3 standing about this far, I'm looking at you. I put my hand 4 right in here and I start going like this. Didn't say 5 anything. All I did was pat myself. Well, next time you see 6 me, I do the same thing. And I go like this. Again, no words 7 were spoken. I didn't say anything. All I'm doing is patting 8 my waist. Then I come up to you next day and I do one of 9 these numbers. I'm just making an "L" and blowing. What does 10 that mean? 11 You have to look at it, members of the jury, not in 12 a vacuum. And that's what Mr. Harr wants you to do. He wants 13 you to just say, "Where is the threat?" Again, the cumulative 14 trauma. He wants you to do that. But you have to look at the 15 history between these two. You have to look at everything in 16 its totality. Absolutely there is a threat. 17 You know, it's interesting. I'll put it another 18 way. Let's take it away from the Church of Scientology. 19 Maybe you belong to -- let's call it the First Baptist Church 20 of Hemet or some other one. The Catholic Diocese of Hemet, 21 whatever, doesn't matter. One day you find out that someone 22 absolutely hates the people there that are at the First 23 Baptist Church of Hemet. Can't stand them. Hates Baptists. 24 Wants to destroy them utterly. Well, you're going about your 25 business, and you find this out. And so what if someone hates 26 the Baptists or someone hates whatever? I mean, we're all 27 entitled to hate something or like something, doesn't make a 28 difference. 391 Amanda M. Fagan, C.S.R. #8764 RPR 1 But then that person shows up at your front door - 2 or not your front door, but the church's place, the front of 3 the church. That person's carrying a sign. And you think, 4 "Well, okay, First Amendment, God bless them." You know, 5 that's what America's based on. You don't like something, go 6 out and protest. That doesn't make a difference. So you go 7 about doing your business. But then you find out that that 8 person has made -- that that person has bomb-making abilities, 9 has the abilities and has made pipe bombs, explosives, owns a 10 cannon, has been out there. And you heard from Frank Petty 11 that he saw this G.P.S. like they were taking coordinates. 12 And he was doing that at your church. Would you be afraid to 13 go to that church? Right you would be. Absolutely you would 14 be. 15 It gets worse. You're a member of that 16 congregation, First Baptist Church of Hemet. And then you get 17 into your car after services on Sunday, and that person starts 18 following you. Chases you, comes up behind you, moves in 19 front of you, follows you to your home. Afraid? You're right 20 you're afraid. Of course you are. You get up in the morning 21 and there he is. He doesn't have a picket sign. He's taking 22 your picture. Are you afraid? Of course. What does he need 23 to do with your picture? And writing down your license plate 24 numbers? Can you honestly say to yourselves that you would 25 not be afraid? No way. No way. 26 Mr. Harr would -- says, "Show me the threat. Show 27 me the threat." I would submit to you, members of the jury, 28 simply taking your picture without you wanting them to, and 392 Amanda M. Fagan, C.S.R. #8764 RPR 1 given their background posting things on the internet, who 2 knows what he's going to do with that? Post your picture on 3 the internet? Incite fear in other people? That in and of 4 itself, members of the jury, is a threat. That alone does it. 5 But you have so much more. So much more. 6 In this country 400 years ago people left England to 7 avoid what? Religious persecution. The pilgrims wanted to 8 worship God in their own way, whatever form they wanted to. 9 And they couldn't do it. So they got on a boat, had 10 dysentery, scurvy, for months. It wasn't like a Queen Mary, 11 get on there and have a good time until you get to your 12 destination. No, it was a dangerous journey. Technology was 13 bad. But they were all willing to do it, all for the hope 14 that they could worship God in their own way. or worship 15 whomever, Allah, whatever, doesn't matter. They wanted to do 16 that. And they were willing to risk life and limb to do that, 17 to avoid religious persecution. 18 It's the year 2001. 400 years later. And we have 19 the exact same thing. Religious persecution. What an 20 abomination. Have we not come so far? No one, no one should 21 be afraid to be able to go to church, worship God, or anything 22 else. If you feel afraid, if you have a second thought, what does that mean? That's a crime. That's what we call it. You 24 should be able to do and go about your business, like I said 25 before, like going to the mall, not think twice. If you do 26 have pause and say, "I'm in danger," there is a potential, we 27 call that a crime. 28 It's funny that Mr. Harr would say that he had no 393 Amanda M. Fagan, C. S. R . #8764 RPR 1 intention to scare his victims. Where did he come up with 2 that? He told the police officers he was waging psychological 3 warfare and he wanted to make them paranoid. That was his 4 objective, was to make them scared. Paranoid, scared. Wanted 5 to make them scared. 6 Mr. Harr, getting on to the point with respect to 7 the police officers, he said that there was some kind of tape 8 and you can therefore, because we didn't play the tape,* there 9 was something unseemly about that. And that you should 10 disbelieve the officer's testimony. Members of the jury, 11 Mr. Harr had a copy of that tape. He could have played it for 12 you. Why didn't he? Why didn't he? I don't understand that 13 argument at all, actually kind of puzzles me. Those cops up 14 there told you the truth. That's what they do. 15 Mr. Harr makes a point about picketing. 40 days, 16 and in fact they hired some -- they talked about Frank Petty, 17 the body guard or the security person. And somehow that's 18 unseemly. Well, to me that shows me that they're darned 19 afraid, that they're willing to hire private security when 20 Mr. Henson's out on the property. That doesn't show me that 21 they're anything but afraid. That's exactly what they would 22 do. What would you do if you had the resources and someone 23 was following you and taking your pictures and doing these 24 things? Maybe you would want to get personal security. I'm 25 sure you do. And would you tell the cops? You'd tell them 26 again and again. 27 And you heard also about that picketing his wife's 28 place of work or whatever. You heard Mr. Hoden say that none 394 Amanda M. Fagan, C.S.R. #8764 RPR 1 of the staff did that. None of the staff did that. And it 2 wasn't endorsed by Golden Era, nor was it directed by them. 3 So basically the parishioners are the ones who do this. It 4 would be something to the effect of trying to attribute 5 something that a Catholic does and saying that the Pope 6 endorsed it. You know, some Catholic goes out there and 7 decides that he wants to protest some religious bigot or do 8 whatever the case may be, and they don't have all the 9 knowledge. Mr. Hoden didn't come up here and say that he 10 shared this with every parishioner. Mr. Henson's direction is 11 at Golden Era. The fact of the matter is again, if some 12 parishioner has no idea what's going on, and all he knows is 13 this person is a religious bigot because he's protesting up in 14 front of their place of worship, how does that somehow defeat 15 the fear that these people have? 16 Also, Mr. Harr talked about the fact that we listed 17 three victims, Hillary Dezotell, Ken Hoden and Bruce Wagoner. 18 I could have listed 700 victims if I wanted to. Every member 19 - 20 THE COURT: Excuse me, Counsel. That goes beyond 21 the - 22 MR. SCHWARZ: I'm responding to Counsel's argument 23 - 24 THE COURT: Well, I'm telling you that goes beyond 25 the charge. 26 MR. SCHWARZ: That's fine, your Honor. Apologize. 27 Thank you for your -- for your direction and your wisdom, your 28 Honor. 395 Amanda M. Fagan, C.S.R. #8764 RPR 1 You know, Mr. Harr's argument is he is a very -- I 2 don't know how to put it exactly. Active picketer. Or 3 something like this. That's how he put it, I think. Well, 4 free speech has limits. The First Amendment not only 5 guarantees the people the right to be able to speak their 6 minds, but it also in the First Amendment guarantees the right 7 to freedom of religion. That's in the very same amendment, by 8 the way. I'm sure all of you knew that. And where one stops, 9 you cannot exercise something in a vacuum. You cannot 10 infringe on someone else's right claiming your own. 11 That means, for example, if I walked into -- if you 12 owned a store in your garage or something, and I stole 13 something out of your place, well, I have -- I would claim 14 some kind of freedom, well, this is a free country. Yes, but 15 I've invaded your right to your possession of whatever that 16 object is. Mr. Harr's suggestion is that Mr. Henson has carte 17 blanche when it comes to the First Amendment. He can do 18 anything he wants to do. That isn't the state of the law. 19 It's like yelling "fire" in a crowded theater, members of the 20 jury. You can't do it. We've all heard that example. Why do 21 we not allow people to yell "fire" in a crowded theater? It's 22 because of the danger that it possesses, that it creates. 23 I just want to leave you with one thought. We have 24 all been sad witnesses to some terrible tragedies that 25 occurred across the U.S. As we have learned recently, there 26 were warning signs. And they were all ignored. 27 THE COURT: I'm sorry, I didn't hear that? 28 MR. SCHWARZ: And they were all ignored. We have 396 Amanda M. Fagan, C.S.R. #8764 RPR 1 laws against terrorist threats because there is a history in 2 this country of people ignoring them, and we all know the 3 results. And those people remember making the same comments 4 just like the ones that Mr. Henson makes. Ladies and 5 gentlemen - 6 MR. HARR: Objection, your Honor, there is no basis 7 for that. 8 THE COURT: Sustained. Counsel, please discontinue 9 that line. 10 MR. SCHWARZ: Withdrawn, your Honor. 11 Members of the jury, we can't make the same mistake 12 twice. We can't make the same mistake. And I just -- there's 13 just one last thing I just have to leave with you. It's 14 interesting that Mr. Harr totally ignores Count Two, the 15 attempt. Mr. Harr doesn't talk about anything about the 16 attempt. And why is that? Because I'll give you an example 17 of how attempt works. This is a law school example. 18 Let's say you hated Mr. Jones. You hated him a lot, 19 and you wanted to kill him. So one day you buy a butcher 20 knife with the express intention to kill him. You break into 21 his house, you see him lying on the bed, and you stab him 22 through the heart. Later it comes out, we come to find out 23 that he was actually dead from a heart attack already. You 24 couldn't complete the crime because he was dead. You can't 25 kill someone who is already dead. That's attempted murder. 26 Well, in this case, and it -- we as a society punish 27 attempted murder. That case, in this scenario that person 28 would be guilty of attempted murder. And the reason why is 397 Amanda M. Fagan, C.S.R. #8764 RPR 1 because we don't like people, we don't want people to have 2 that readiness to do evil, the ability to try to carry that 3 out. The only thing in this case, it was fortuitous that this 4 person happened to be dead, save that he would have actually 5 killed him. 6 In this case Mr. Henson has done everything possible 7 to make them afraid and done everything that he can possibly 8 do to terrorize these people. If you feel like -- if you're 9 -- if at the very least, if you don't think he accomplished 10 that, then he's still guilty of attempt. Mr. Harr knows that. 11 That's why he didn't tell you. At the very least Count Two. 12 If you don't think he accomplished what he set out to do, he's 13 guilty of Count Two. 14 Again, I will just leave you with that one last 15 thought. And we cannot allow Mr. Henson to do what he does. 16 We cannot allow him to do that. Thank you for your time and 17 attention. I hope you have a good lunch. 18 THE COURT: We're going to take our lunch recess. 19 Before we do, let me explain something to you. We are not 20 here to send any message to anybody. We are here to make a 21 determination as to whether or not a crime was committed by 22 the defendant. That means that you are not to take into 23 consideration any real or imagined responsibility that you 24 believe you may have to do something other than to make a 25 determination from the facts in this case and in this case 26 only. I wanted to admonish you because it appeared the 27 district attorney in his zeal may have said more than he 28 should have said, and I want you to understand what your 398 Amanda M. Fagan, C.S.R. #8764 RPR 1 responsibility is in this case. 2 We will now recess for lunch. I think if we - 3 anybody need longer than an hour and 15 minutes? Let's get 4 back at 1:30 so we can start promptly. Thank you. Court's 5 adjourned. Please don't discuss the case at all. 6 (The jury exited the courtroom.) 7 THE COURT: All right, gentlemen; I will instruct at 8 1:30. See you then. 9 MR. SCHWARZ: Thank you, your Honor. 10 (Noon recess taken.) 11 AFTERNOON SESSION 12 (The following proceedings were held in open court 13 in the presence of the jury.) 14 THE COURT: Those of you who are behind the rail, 15 you are free to stay during the reading of the instructions. 16 However, I want to caution you that they are not the most 17 exciting thing that you can listen to, and I will ask that you 18 not leave during the course of the reading of the 19 instructions. 20 (Jury Instructions given and not herein transcribed. 21 Whereupon, the jury retired to the jury 22 deliberation room.) 23 (Proceedings adjourned.) 24 -000 25 26 27 28 399 Amanda M. Fagan, C.S.R. #8764 RPR REPORTER'S CERTIFICATE -000 STATE OF CALIFORNIA ) ss. COUNTY OF RIVERSIDE ) THE PEOPLE OF THE STATE OF ) CALIFORNIA, ) Plaintiff, ) VS. ) Case No. HEM014371 KEITH HENSON, ) Defendant. ) I, AMANDA M. FAGAN, a Certified Shorthand Reporter and Official Court Reporter for the Riverside County Superior Court, do hereby certify: On April 17, 19, 20 and 24, 2001, in the above-entitled case, I took in Stenotype a true and accurate record of the proceedings had in said case. I further certify that the foregoing transcript, Pages 1 through 399, is a true and accurate record of my Stenotype notes thereof, as taken by me in Stenotype. DATED: RIVERSIDE, CALIFORNIA, AUGUST 21, 2001. AMANDA M. FAGAN C.S.R. NO. 8764 Certified Short n Reporter Official Court Reporter Riverside County Amanda M. Fagan, C.S.R. #8764 RPR