Trial Day 5: MAY 12, 1998
1 UNITED STATES DISTRICT COURT
2 FOR THE NORTHERN DISTRICT OF CALIFORNIA
3 SAN JOSE DIVISION
4
5 RELIGIOUS TECHNOLOGY CENTER, ) CASE NOS. C-96-20271 RMW
A CALIFORNIA NON-PROFIT )
6 ORGANIZATION, )
) SAN JOSE, CALIFORNIA
7 PLAINTIFF, )
) MAY 12, 1998
8 VS. )
) PAGES 538-728
9 H. KEITH HENSON, AN )
INDIVIDUAL, ) VOLUME 5
10 )
DEFENDANTS. )
11 _____________________________)
12
13 TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE RONALD M. WHYTE
14 UNITED STATES DISTRICT JUDGE
15 APPEARANCES
16 FOR THE PLAINTIFF PAUL, HASTINGS, JANOFSKY & WALKER
BY: SAMUEL D. ROSEN, MICHAEL MERVIS
17 399 PARK AVENUE
NEW YORK, NEW YORK 10022
18
LAW OFFICES OF THOMAS R. HOGAN
19 BY: THOMAS R. HOGAN
60 SOUTH MARKET STREET, SUITE 1125
20 SAN JOSE, CALIFORNIA 95113
21
22 REPORTED BY: LEE-ANNE SHORTRIDGE
OFFICIAL COURT REPORTER, USDC
23
24 APPEARANCES CONTINUED ON NEXT PAGE
25 COMPUTERIZED TRANSCRIPTION BY STENOCAT
538
1 APPEARANCES (CON'T)
2 FOR THE PLAINTIFF LAW OFFICES OF MOXON & KOBRIN
BY: HELENA K. KOBRIN
3 6255 SUNSET BOULEVARD, SUITE 2000
LOS ANGELES, CALIFORNIA 90028
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5 FOR THE DEFENDANT BERRY, LEWIS, SCALI & STOJKOVIC
H. KEITH HENSON BY: GRAHAM E. BERRY
6 ONE WILSHIRE BOULEVARD, 21ST FLOOR
LOS ANGELES, CALIFORNIA 90017
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539
1 INDEX OF WITNESSES
2 PAGE
3 H. KEITH HENSON
4 DIRECT BY MR. BERRY (RESUMED) 542
CROSS BY MR. ROSEN 556
5 REDIRECT BY MR. BERRY 618
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10 INDEX OF EXHIBITS
11 ADMITTED
12 142 AND 143 603
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540
1 (WHEREUPON, THE PROCEEDINGS WERE IN THE
2 PRESENCE OF THE JURY.)
3 THE COURT: GOOD MORNING EVERYONE.
4 MR. ROSEN: GOOD MORNING.
5 MR. BERRY: GOOD MORNING.
6 THE COURT: LET ME TELL YOU, LADIES AND
7 GENTLEMEN, WHAT THE SCHEDULE IS FOR TODAY. I
8 ANTICIPATE THAT WE WILL BE CONCLUDING THE EVIDENCE
9 WITHIN A COUPLE OF HOURS, AND THEN WE WILL TAKE A
10 SHORT BREAK, AT WHICH TIME I WILL GO OVER THE LEGAL
11 INSTRUCTIONS I INTEND TO GIVE TO YOU WITH THE
12 ATTORNEYS BECAUSE THEY HAVE A RIGHT TO DISCUSS
13 THOSE WITH ME.
14 THEY BASICALLY KNOW WHAT INSTRUCTIONS I'M
15 GOING TO GIVE, BUT THERE ARE A COUPLE OF MINOR
16 CHANGES THAT THEY MAY WANT TO DISCUSS WITH ME THAT
17 I HAD MADE TO THE INSTRUCTIONS.
18 AFTER THAT WE'LL COME BACK AND THEY WILL
19 DO THEIR CLOSING ARGUMENTS TO YOU, AND MY
20 ANTICIPATION IS THAT THEY WILL TAKE 45 MINUTES OR
21 LESS EACH, THEN I WILL INSTRUCT YOU ON THE LAW, AND
22 THEN THE CASE WILL BE YOURS TO DECIDE. SO THAT'S
23 THE PLAN FOR TODAY.
24 ALL RIGHT. I THINK, MR. BERRY, YOU WERE
25 EXAMINING MR. HENSON.
541
1 MR. ROSEN: YOUR HONOR, ONE PRELIMINARY
2 MATTER. IF I COULD JUST TAKE TEN SECONDS AT
3 SIDE-BAR, IT WILL BE VERY QUICK.
4 THE COURT: ALL RIGHT.
5 (SIDE-BAR CONFERENCE.)
6 THE COURT: MR. BERRY, YOU MAY PROCEED.
7 DIRECT EXAMINATION (RESUMED)
8 BY MR. BERRY:
9 Q MR. HENSON, AT THE TIME YOU POSTED NOTS 34 TO
10 THE INTERNET, WERE YOU FAMILIAR WITH ANY WRITINGS
11 BY A ROSCO POUND?
12 A YES, I WAS.
13 Q AND WHAT WERE WAS YOUR UNDERSTANDING OF THE
14 WRITINGS YOU WERE FAMILIAR WITH?
15 MR. ROSEN: YOUR HONOR, I OBJECT TO THIS.
16 THIS HAS NOTHING TO DO WITH THE LEGALITY OF NOTS
17 34.
18 THE COURT: IT MAY NOT HAVE TO DO WITH
19 THE LEGALITY, BUT IT GOES TO THE STATE OF MIND. SO
20 I'LL ALLOW IT.
21 THE WITNESS: AS A MATTER OF FACT, I READ
22 PART OF ROSCO POUND'S WORK IN A BOOK THAT I PICKED
23 UP AT A USED BOOK STORE IN SEATTLE SOME
24 CONSIDERABLE NUMBER OF YEARS AGO, AND ONE OF THE
25 THINGS, WHICH I ONLY HAD A VAGUE IMPRESSION OF THE
542
1 WORK THAT WAS IN IT AT THE TIME, BUT SINCE THEN
2 I'VE DUG THE BOOK UP AGAIN AND --
3 THE COURT: ALL RIGHT. WE ONLY WANT TO
4 KNOW -- I THINK THE QUESTION WAS AT THE TIME YOU
5 POSTED NOTS 34 WERE YOU FAMILIAR WITH THE WRITINGS
6 OF ROSCO POUND AND THE ANSWER TO THAT WAS YES.
7 THE WITNESS: YES.
8 THE COURT: THE NEXT QUESTION
9 BY MR. BERRY:
10 Q AND IN RELATION TO YOUR POSTING OF NOTS 34,
11 DID YOU BELIEVE THAT ON THE BASIS OF WHAT YOU HAD
12 READ THAT MR. POUND WOULD HAVE APPROVED?
13 MR. ROSEN: OBJECTION, LEADING.
14 THE COURT: IT'S IRRELEVANT AS TO WHETHER
15 HE WOULD HAVE APPROVED.
16 BY MR. BERRY:
17 Q DID YOU BELIEVE THAT YOUR POSTING OF NOTS 34
18 WAS JUSTIFIED ON THE BASIS OF YOUR UNDERSTANDING OF
19 DEAN POUND'S WRITINGS?
20 MR. ROSEN: OBJECTION, LEADING.
21 THE COURT: SUSTAINED.
22 BY MR. BERRY:
23 Q WHAT WAS YOUR UNDERSTANDING OF DEAN POUND'S
24 WRITINGS AT THE TIME YOU POSTED NOTS 34?
25 A TO PUT IT IN THE VERNACULAR, IF YOU'RE GOING
543
1 TO DO AN ENTRY FOR SOMEONE, YOU BETTER HAVE A
2 REASON FOR DOING SO. YOU BETTER JUSTIFY YOUR
3 REASONS. IT'S ON THE SCALE OF IF YOU TEAR
4 SOMEBODY'S HOUSE DOWN, IT BETTER BE FOR A GOOD
5 REASON. YOU BETTER BE JUSTIFIED FOR LIKE BUILDING
6 A FIRE BREAK. ESSENTIALLY DEAN POUND AND LEGAL
7 SCHOLARS --
8 MR. ROSEN: OBJECTION.
9 THE COURT: SUSTAINED.
10 BY MR. BERRY:
11 Q AND DID YOU HAVE SOME UNDERSTANDING OF OTHER
12 LEGAL SCHOLARS CONNECTION IN WHAT YOU WERE DOING IN
13 CONNECTION WITH POSTING NOTS 34?
14 MR. ROSEN: OBJECTION.
15 THE COURT: YOU'RE GOING TO HAVE TO MAKE
16 THAT QUESTION MORE NARROW.
17 BY MR. BERRY:
18 Q DID YOU BELIEVE THAT OTHER SCHOLARS HAD
19 WRITTEN MATERIALS WHICH IN YOUR MIND JUSTIFIED YOU
20 IN POSTING NOTS 34?
21 MR. ROSEN: OBJECTION.
22 THE COURT: WHETHER HE FELT HE WAS
23 MORALLY JUSTIFIED IS NOT THE QUESTION. THE
24 QUESTION IS WHETHER THERE WAS SOME LEGAL LAW OR
25 JUSTIFICATION FOR HIS POSTING AT THE TIME HE DID.
544
1 YOU MAY ASK THAT QUESTION.
2 THE WITNESS: YES, I BELIEVE.
3 THE COURT: HE WASN'T ASKING YOU A
4 QUESTION. I WAS JUST SAYING THAT HE COULD.
5 MR. BERRY: I WAS ASKING THE ANSWER TO
6 THE COURT'S QUESTION.
7 THE WITNESS: THE COURT ASKED IT VERY
8 WELL, AND I FELT I WAS JUSTIFIED FOR I THOUGHT WAS
9 ONE REASON THAT I BELIEVE WAS CRIMINAL ACTIVITY,
10 SMOKING-GUN ACTIVITY, AND I FELT I WAS FULLY
11 JUSTIFIED IN POSTING IT AND POINTING OUT THE FACT
12 THAT IT WAS THIS TYPE OF MATERIAL.
13 BY MR. BERRY:
14 Q AND YOU HEARD OF THE CONCEPT OF "FAIR USE"?
15 A OH, YES.
16 Q AND WHAT WAS YOUR UNDERSTANDING OF, AT THE
17 TIME YOU POSTED NOTS 34, IN CONNECTION WITH FAIR
18 USE?
19 A THERE ARE FOUR ELEMENTS OF FAIR USE.
20 MR. ROSEN: YOUR HONOR, I OBJECT. THIS
21 HAS NOTHING TO DO WITH WILLFULNESS AT ALL. FAIR
22 USE IS NOT PART OF A WILLFULNESS ISSUE.
23 MR. BERRY: STATE OF MIND, YOUR HONOR.
24 THE COURT: STATE OF MIND, IF HE
25 REASONABLY BELIEVES SOMETHING WAS FAIR USE EVEN
545
1 THOUGH IT WAS NOT, EVEN AT THE TIME HE POSTED THAT
2 WOULD GO TO THE ISSUE OF WILLFULNESS. I'M NOT SURE
3 IF THAT'S WHAT IS BEING ASKED.
4 MR. BERRY: IT IS, YOUR HONOR.
5 THE WITNESS: COULD YOU REPEAT THE
6 QUESTION.
7 BY MR. BERRY:
8 Q WHAT WAS YOUR UNDERSTANDING OF FAIR USE IN
9 CONNECTION WITH YOUR POSTING OF NOTS 34?
10 THE COURT: AT THE TIME YOU POSTED, DID
11 YOU ACTUALLY HAVE AN UNDERSTANDING OF FAIR USE?
12 THE WITNESS: I HAD A FAIR DEGREE OF
13 UNDERSTANDING OF FAIR USE AT THAT TIME BECAUSE IT
14 WAS SOMETHING THAT WAS DISCUSSED EXTENSIVELY ON ALL
15 RELIGIONS OF SCIENTOLOGY.
16 Q AND WHAT WAS YOUR UNDERSTANDING OF FAIR USE IN
17 MARCH OF 1996?
18 A THERE ARE FOUR ELEMENTS TO IT, ALTHOUGH I MAY
19 NOT MANAGE TO GET THEM RIGHT, I THINK I CAN GET THE
20 GIST OF THEM. IT DEPENDS A LOT ON THE KIND OF
21 MATERIAL THAT IS INVOLVED WHERE FACTUAL MATERIAL IS
22 EASIER TO QUOTE THAN FICTIONAL MATERIAL. THERE ARE
23 ELEMENTS ABOUT HOW MUCH YOU USE OF IT, AND YOU'RE
24 NOT SUPPOSED TO USE MORE THAN YOU NEED TO USE TO
25 DEMONSTRATE WHATEVER POINT YOU'RE TRYING TO MAKE
546
1 AND BEYOND THAT YOU SHOULDN'T TRY TO -- YOU
2 SHOULDN'T DO ANYTHING WHICH RESULTS IN YOUR OWN
3 PERSONAL GAIN AT THE EXPENSE OF SOMEBODY ELSE.
4 I'M NOT SURE I CAN REMEMBER EXACTLY WHAT
5 THE FOURTH ONE IS BUT THAT'S THE ESSENCE OF THE --
6 OF THE FAIR USE DEFENSE.
7 Q AND HAD YOU HEARD OF MISUSE OF COPYRIGHT?
8 A NO. THAT'S A TERM WHICH I HAVE -- I HAD NEVER
9 REALLY HEARD OF THE MISUSE COPYRIGHT BEFORE. I
10 BELIEVE THIS IS AN EXAMPLE OF IT.
11 THE COURT: WELL, THAT'S STRICKEN, MR.
12 HENSON. YOU KNOW FULL WELL WHAT YOU'RE SUPPOSED TO
13 TALK ABOUT YOUR STATE OF MIND AS OF MARCH 30TH.
14 YOU'RE NOT SUPPOSED TO THROW IN WHAT YOU MAY NOW
15 BELIEVE IS THE LAW OR SOMETHING ELSE.
16 THE WITNESS: EXCUSE ME, YOUR HONOR.
17 BY MR. BERRY:
18 Q NOW, YOU POSTED THE ENTIRETY OF NOTS 34,
19 DIDN'T YOU?
20 A THAT'S TRUE.
21 Q AND WHY DID YOU DO THAT?
22 A I DIDN'T BELIEVE THAT ANY LESS WOULD SUFFICE
23 TO DEMONSTRATE THE POINT THAT I WAS ATTEMPTING TO
24 MAKE, AND I DIDN'T WANT ANYBODY TO BE ABLE TO SAY,
25 "WELL, YOU'RE QUOTING THIS OUT OF CONTEXT."
547
1 Q DO YOU RECALL YOUR DEPOSITION BEING TAKEN IN
2 THIS CASE IN MAY OF 1996?
3 A YES.
4 Q AND TURNING TO PAGE 162.
5 MR. ROSEN: EXCUSE ME, I OBJECT.
6 THE COURT: IS THIS BY YOU OF HIS
7 DEPOSITION? UNLESS IT IS PUTTING SOMETHING THAT
8 THEY'VE READ IN CONTEXT IT IS NOT PROPER.
9 THE WITNESS: ALL RIGHT.
10 BY MR. BERRY:
11 Q HAD YOU -- BEFORE YOU POSTED NOTS 34, WERE YOU
12 AWARE OF SOMETHING CALLED THE THETA.COM?
13 A YES.
14 Q AND WHAT WAS YOUR UNDERSTANDING -- WHAT IS
15 THETA.COM?
16 A WELL, THETA, OF COURSE, IS A SCIENTOLOGY TERM
17 AND SO THETA.COM WAS ONE OF THE BASIS OF THE NAME
18 ALONE WAS LIKELY TO BE A SCIENTOLOGY SITE.
19 MR. ROSEN: YOUR HONOR, I MOVE TO STRIKE
20 THIS. THIS IS INCONSISTENT WITH YOUR IN LIMINE
21 RULING YESTERDAY AS TO WHAT PORTIONS OF THE MR.
22 BERRY'S OFFER OF PROOF WOULD BE ALLOWED.
23 THE COURT: I DON'T THINK IT IS. I'M
24 GOING TO ALLOW THE QUESTION.
25 BY MR. BERRY:
548
1 Q AND WHAT -- WHAT WAS THETA.COM?
2 THE COURT: HIS UNDERSTANDING.
3 THE WITNESS: MY UNDERSTANDING OF IT WAS
4 THAT IT WAS A WEB SITE WHICH WAS ASSOCIATED AT SOME
5 LEVEL WITH SCIENTOLOGY.
6 BY MR. BERRY:
7 Q AND HAD YOU VISITED THE THETA.COM WEB SITE
8 BEFORE MARCH OF 1996?
9 A YES, I DID IN OCTOBER OF '95.
10 Q AND HAD YOU FOUND NOTS 34 ON THAT WEB SITE?
11 MR. ROSEN: OBJECTION, LEADING.
12 THE COURT: SUSTAINED.
13 BY MR. BERRY:
14 Q WHEN YOU VISITED THE WEB SITE OF THETA.COM,
15 DID YOU FIND ANYTHING OF INTEREST TO YOU?
16 A YES.
17 Q AND WHAT DID YOU FIND THAT WAS OF INTEREST TO
18 YOU?
19 A TWO FILES.
20 Q AND WHAT WERE THOSE TWO FILES?
21 A SCAMIZDAT.TOT, WHICH TURNS OUT TO CONTAIN THE
22 SCAMIZDAT POSTINGS OF I BELIEVE THREE THROUGH TEN,
23 AND IN THERE THERE ARE SEVERAL COPIES OF NOTS PLUS
24 OTHER SCIENTOLOGY DOINGS AND ONE CALLED
25 MEGAMEGA.ZIP.
549
1 Q DID THAT INFLUENCE YOU TO POST NOTS 34?
2 A SADLY NO.
3 MR. ROSEN: THEN I MOVE TO STRIKE THE
4 ENTIRETY OF THIS TESTIMONY AS IRRELEVANT.
5 THE COURT: I'LL STRIKE IT IF IT HAS
6 NOTHING TO DO WITH HIS POSTING AND THEN IT'S
7 IRRELEVANT.
8 BY MR. BERRY:
9 Q DID YOU HAVE ANY BELIEF AS TO THE VALIDITY OF
10 THE COPYRIGHT OF NOTS 34 AND THE POSTING?
11 A YES.
12 Q AND WHAT WAS THAT BELIEF?
13 A MY BELIEF WAS THAT IT WAS PROBABLY
14 LEGITIMATELY COPYRIGHTED, BUT I COULDN'T BE SURE.
15 (CHANGE IN REPORTERS.)
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550
1 BY MR. BERRY:
2 Q AND IN CONNECTION WITH THETA.COM, DID YOU REVIEW ANY
3 MATERIALS THAT FETTERED YOUR BELIEF AS TO THE COPYRIGHT OF NOTS
4 34?
5 MR. ROSEN: OBJECTION.
6 THE COURT: PRIOR TO POSTING?
7 BY MR. BERRY:
8 Q PRIOR TO POSTING.
9 MR. ROSEN: OBJECT TO THE REFERENCE OF THETA.COM.
10 THE COURT: YOU CAN ANSWER THE QUESTION.
11 THE WITNESS: COULD YOU REPEAT IT?
12 MR. BERRY: COULD THE COURT REPORTER READ IT BACK?
13 (RECORD READ.)
14 THE WITNESS: YES.
15 BY MR. BERRY:
16 Q AND WHAT DID YOU CONCLUDE IN THAT REGARD?
17 A I DIDN'T REALLY MAKE A CONCLUSION ON IT. IT WAS
18 LEFT AS A QUESTION AT THAT POINT IN MY MIND AS TO WHETHER THE
19 PEOPLE AT THETA.COM HAD INTENTIONALLY EXPOSED THEIR OWN
20 SCRIPTURES OR NOT.
21 THE COURT: WELL, I'LL STRIKE THAT --
22 MR. ROSEN: I MOVE TO STRIKE.
23 THE COURT: -- AS TO WHETHER OR NOT IT'S THEIR OWN
24 SCRIPTURES. THERE'S NO FOUNDATION THAT THETA.COM IS, IN FACT, A
25 SCIENTOLOGY SITE.
551
1 Q DID YOU REACH ANY CONCLUSION AS TO -- SORRY,
2 WITHDRAWN.
3 DID YOU FORM A BELIEF AS TO WHETHER NOTS 34 WAS AN
4 UNPUBLISHED DOCUMENT AS A RESULT OF THETA.COM?
5 MR. ROSEN: OBJECTION, YOUR HONOR. IT DOESN'T MAKE
6 ANY DIFFERENCE AS TO WHETHER IT'S PUBLISHED.
7 THE COURT: WELL --
8 MR. ROSEN: WITHDRAW THE COMMENT.
9 THE COURT: UNPUBLISHED BY THE AUTHOR OR OWNER?
10 MR. BERRY: BY THE CLAIMANT OF THE COPYRIGHT.
11 THE COURT: ALL RIGHT. ANSWER THAT QUESTION.
12 THE WITNESS: I COULDN'T REALLY FORM ANY KIND OF AN
13 OPINION ON THAT BECAUSE THE PEOPLE AT THETA.COM NEVER, OR
14 SCIENTOLOGY ITSELF NEVER RESPONDED TO MY ANNOUNCEMENT ON THE NET
15 THAT I HAD DOWNLOADED THIS MATERIAL AND MY VOLUNTEERING TO
16 DELETE IT IF IT WAS, IF IT WAS THEIR UNINTENTIONAL --
17 MR. ROSEN: YOUR HONOR, I MOVE TO STRIKE IT, THE
18 TESTIMONY THAT THE WITNESS HAS NOW GRATUITOUSLY OFFERED ABOUT
19 RESPONDING TO HIS REQUEST AFTER MARCH 30TH, 1996.
20 THE WITNESS: NO. OCTOBER '95.
21 THE COURT: OKAY. OCTOBER '95. I'LL ALLOW IT IF
22 THAT'S WHAT HE SAYS.
23 BY MR. BERRY:
24 Q AND WHAT HAD YOU POSTED TO THE NET ON OCTOBER '95?
25 A AFTER I DOWNLOADED THE MATERIALS FROM THETA.COM, I
552
1 POSTED ON ARS, WHICH, ACCORDING TO TESTIMONY THAT I'D READ AND
2 BELIEVED TO BE TRUE, WAS BEING MONITORED BY SCIENTOLOGY,
3 PARTICULARLY WARREN MCSHANE.
4 I ANNOUNCED ON THERE THAT I HAD DOWNLOADED THIS AND
5 I ANNOUNCED MY WILLINGNESS TO DELETE IT, BUT I ANNOUNCED THIS
6 TWO OR THREE TIMES AND THEN, NEVER GETTING ANY RESPONSE, I
7 FORGOT ABOUT IT.
8 Q DID MS. KOBRIN SEND YOU ONE OF HER --
9 A KOBRIN-GRAMS?
10 Q -- E-MAILS?
11 A NO.
12 Q HAD YOU -- BEFORE POSTING NOTS 34, HAD YOU HEARD OF
13 SOMEONE CALLED DAVID MAYO?
14 A YES.
15 Q AND DID YOUR KNOWLEDGE OF DAVID MAYO AFFECT YOUR
16 DECISION AND STATE OF MIND IN CONNECTION WITH THE POSTING OF
17 NOTS 34?
18 A TO SOME EXTENT.
19 Q AND TO WHAT EXTENT DID IT AFFECT IT?
20 A WELL, ONE OF THE THINGS WHICH WAS DISCUSSED
21 EXTENSIVELY WAS WHAT D.M. MEANS IN THE LINE THAT RUNS LRH:DM:
22 AND THEN SOME OTHER INITIALS ON IT AT THE BOTTOM.
23 AND IT WAS QUITE CLEAR FROM THAT THAT DAVID MAYO WAS
24 EITHER THE AUTHOR OR THE CO-AUTHOR OF MUCH OF THIS MATERIAL.
25 MR. ROSEN: OBJECTION, YOUR HONOR, AS TO WHAT WAS
553
1 QUITE CLEAR.
2 THE WITNESS: IN MY MIND.
3 THE COURT: ALL RIGHT. I'LL STRIKE THE COMMENT AS
4 TO WHETHER IT WAS QUITE CLEAR. HE CAN TESTIFY AS TO WHAT
5 CONCLUSION HE DREW OF IT, AND IT'LL BE UP TO THE JURY TO DECIDE
6 WHETHER OR NOT THERE'S ANY BASIS FOR IT.
7 BY MR. BERRY:
8 Q AND HAD YOU READ MATERIALS RELATING TO THE DEATH OF
9 L. RON HUBBORD AT THE TIME YOU READ NOTS 34?
10 MR. BERRY: OBJECTION, YOUR HONOR, CLEARLY COVERED
11 BY YOUR ORDER.
12 THE COURT: WOULD YOU APPROACH, PLEASE? THIS IS
13 GETTING OUT OF HAND.
14 (SIDEBAR DISCUSSION OFF THE RECORD.)
15 BY MR. BERRY:
16 Q WERE YOU THE RECIPIENT OF ANY VICIOUS POSTINGS ON
17 THE INTERNET?
18 MR. BERRY: OBJECTION, IRRELEVANT.
19 THE COURT: WHAT IS THE RELEVANCE OF WHETHER OR NOT
20 HE WAS THE RECIPIENT OF A VICIOUS POSTING OR WHETHER RTC WAS, OR
21 SCIENTOLOGY WAS THE RECIPIENT OF VICIOUS POSTINGS OR NOT?
22 MR. BERRY: I THINK MR. ROSEN'S WORDS, YOUR HONOR,
23 WERE THAT HE WAS A VICIOUS AND VITURPUTIVE MAN AS A RESULT OF
24 THESE POSTINGS. I'M SHOWING THAT IT GOES BOTH WAYS.
25 THE COURT: IT'S AN IRRELEVANT CONSIDERATION IN THIS
554
1 CASE, BOTH SIDES. LET'S MOVE ON.
2 THE ONLY REASON ANY EVIDENCE AS TO COMMENTS BY
3 MR. HENSON WERE ADMITTED WAS ON THE QUESTION OF WHETHER OR NOT
4 IT INDICATED A LIKELYNESS OR A POSSIBILITY THAT HE WOULD REPOST
5 IN THE MANNER THAT HE HAD PREVIOUSLY. IT IS RELEVANT FOR THAT
6 CONSIDERATION ONLY.
7 MR. BERRY: AND AT THIS POINT, YOUR HONOR, I WOULD
8 RESERVE THE REMAINDER OF MY TIME FOR REEXAMINATION.
9 THE COURT: OKAY. MR. ROSEN, ANY FURTHER QUESTIONS?
10 MR. ROSEN: YES. WELL, I HAVE A CROSS EXAMINATION.
11 IF WE COULD JUST TAKE ABOUT A FIVE-MINUTE BREAK FOR ME TO
12 COLLECT IT AND HOPEFULLY SCALE IT DOWN?
13 THE COURT: ALL RIGHT, IF YOU THINK THAT'LL HELP.
14 MR. ROSEN: I THINK IT WILL, YOUR HONOR.
15 THE COURT: ALL RIGHT. WE'LL TAKE FIVE MINUTES.
16 (RECESS.)
17 THE COURT: ALL RIGHT. MR. ROSEN, YOU MAY PROCEED.
18 MR. ROSEN: YES, YOUR HONOR. DURING THE BRIEF
19 RECESS WE PUT TOGETHER THE DOCUMENTS THAT WE MAY USE, I'M NOT
20 SAYING WE WILL USE THEM, ALL OF THEM, FOR IMPEACHMENT AND
21 REFRESHING RECOLLECTION. WE GAVE MR. BERRY A COPY.
22 WOULD IT BE CONVENIENT IF WE HAND IT UP NOW?
23 THE COURT: ALL RIGHT.
24 MR. ROSEN: SO WE WOULDN'T HAVE TO DO IT AS WE GO ON
25 (HANDING).
555
1 CROSS EXAMINATION BY MR. ROSEN
2 Q MR. HENSON, YOU INDICATED THAT YOU POSTED NOTS 34
3 ON, IN MARCH OF 1996, IN PART, BASED UPON YOUR READING OF SOME
4 WRITING BY ROSCO POUND?
5 A YES.
6 Q DID ROSCO POUND -- BY THE WAY, WHO IS ROSCO POUND?
7 WHO WAS HE?
8 A HE WAS A MAJOR THEORIST IN THE JURISPRUDENCE.
9 Q WHERE?
10 A SURELY YOU KNOW THAT.
11 Q WHEN?
12 A I DON'T REMEMBER.
13 Q WHAT COUNTRY?
14 A IT WAS ABOUT 1928. U.S.
15 Q AND DID ROSCO POUND WRITE ABOUT VIOLATING COPYRIGHTS
16 IN THE NAME OF WHAT YOU BELIEVED TO BE THE FIRST AMENDMENT?
17 A NO.
18 Q THANK YOU. OKAY. NOW, YOU SAID THAT YOU HAD, PRIOR
19 TO POSTING IN MARCH OF 1996, YOU HAD AN UNDERSTANDING OF WHAT
20 THE DEFENSE OF FAIR USE WAS.
21 A YES.
22 Q AND YOU SAID THAT YOU UNDERSTOOD THAT ONE OF THE
23 ELEMENTS OF FAIR USE WAS "DON'T POST MORE THAN YOU NEED TO
24 POST"?
25 A THAT'S CORRECT.
556
1 Q AND YOU ALSO HAD AN UNDERSTANDING THAT ANOTHER
2 ELEMENT OF FAIR USE IS "DON'T GET ANY PERSONAL GAIN FROM IT"?
3 A THAT'S TRUE.
4 Q AND YOU'RE REFERRING TO THE FOUR ENUMERATED FACTORS
5 OF FAIR USE THAT ARE LISTED IN THE COPYRIGHT ACT?
6 A SOMEWHAT, AT LEAST IN PRINCIPAL.
7 Q SO YOU READ THE COPYRIGHT ACT BEFORE YOU POSTED NOTS
8 34; RIGHT?
9 A NO.
10 Q MR. HENSON, YOU HAD NEVER READ THE COPYRIGHT ACT?
11 A NO.
12 Q HAD YOU EVER READ ANY PART OF IT?
13 A OH, YES.
14 Q WELL, DIDN'T YOU SAY YESTERDAY THAT YOU WERE
15 CONFUSED BECAUSE IN 1978, THE COPYRIGHT ACT WAS CHANGED?
16 A THIS WAS DISCUSSED EXTENSIVELY ON THE NET.
17 Q YES OR NO, MR. HENSON?
18 A YES.
19 Q WELL, ARE YOU TELLING ME THAT WHAT YOU KNOW IS THAT
20 SOMEBODY ON THE NET SAID THE COPYRIGHT ACT HAD BEEN CHANGED IN
21 '78, BUT YOU NEVER READ ANY PART OF THE COPYRIGHT ACT DEALING
22 WITH FAIR USE; RIGHT?
23 A I DIDN'T SAY I HAVE NEVER READ ANY PART OF THE
24 COPYRIGHT ACT. I SAID I DIDN'T READ THE ENTIRE ACT.
25 Q DID YOU READ ANY PORTION DEALING WITH FAIR USE
557
1 DEFENSES?
2 A YES.
3 Q WHEN DID YOU DO THAT, MR. HENSON?
4 A CERTAINLY PRIOR TO MARCH OF '96.
5 Q OKAY. AND SO THEN YOU KNEW, MR. HENSON, THAT THE
6 COPYRIGHT ACT ENUMERATED FOUR ELEMENTS OF FAIR USE, AND DID NOT
7 INCLUDE THAT YOU BELIEVED THAT A COPYRIGHTED WORK WAS A CRIMINAL
8 INSTRUCTION MANUAL? YOU KNEW THAT; RIGHT?
9 A I BELIEVE -- OF COURSE.
10 Q OKAY. MR. HENSON, YOU --
11 A IT'S MUCH MORE GENERAL.
12 Q MR. HENSON, THIS IS THE DEFENSE THAT YOU, A FAIR USE
13 THAT YOU PRESENTED TO THE COURT IN OPPOSITION TO RTC'S MOTION
14 FOR SUMMARY JUDGMENT; RIGHT?
15 MR. BERRY: OBJECTION, YOUR HONOR.
16 THE WITNESS: WHAT IS? WHAT IS A DEFENSE?
17 BY MR. ROSEN:
18 Q FAIR USE?
19 A YES.
20 THE COURT: WHAT'S THE LEGAL BASIS?
21 MR. BERRY: IRRELEVANT AS TO WHAT HAPPENED ON THE
22 MOTION FOR SUMMARY JUDGMENT.
23 THE COURT: WELL, I THINK IT IS WITH RESPECT TO HIS
24 STATE OF MIND AT THE TIME THAT HE POSTED, SO I'LL SUSTAIN THE
25 OBJECTION.
558
1 BY MR. ROSEN:
2 Q MR. HENSON, YOU TESTIFIED A MOMENT AGO AS TO HAVING
3 SEEN NOTS 34 ON SOMETHING CALLED THETA.COM PRIOR TO MARCH 30TH,
4 1996; RIGHT?
5 A IT'S MORE COMPLICATED THAN THAT.
6 Q MR. HENSON, WE'RE TRYING TO MOVE ALONG, SO IF YOU
7 COULD POSSIBLY ANSWER JUST YES OR NO.
8 DID YOU SEE NOTS 34 POSTED ON THETA.COM BEFORE MARCH
9 30TH, 1996?
10 MR. BERRY: OBJECTION, YOUR HONOR. COUNSEL IS
11 BADGERING THE WITNESS.
12 THE WITNESS: BY IMPLICATION, YES.
13 MR. BERRY: COUNSEL IS BADGERING THE WITNESS.
14 THE COURT: THE QUESTION IS LEGITIMATE.
15 I THINK, MR. ROSEN, YOU CAN LOWER YOUR VOICE A
16 LITTLE BIT.
17 MR. ROSEN: SURE. I'M SORRY, YOUR HONOR.
18 THE WITNESS: MY ANSWER WAS BY IMPLICATION, YES.
19 (CHANGE IN REPORTERS.)
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21
22
23
24
25
559
1 BY MR. ROSEN:
2 Q MR. HENSON, DO YOU RECALL IN THIS CASE FILING
3 WITH THE COURT AND WITH RTC YOUR RESPONSES TO
4 REQUEST FOR PRODUCTION OF DOCUMENTS SERVED UPON YOU
5 BY RTC IN THIS CASE? DO YOU RECALL DOING THAT?
6 A YES.
7 MR. ROSEN: YOUR HONOR, MAY I APPROACH
8 THE WITNESS?
9 THE COURT: YES.
10 BY MR. ROSEN:
11 Q MR. HENSON, LET ME SHOW YOU WHAT HAS BEEN
12 MARKED FOR IDENTIFICATION AS EXHIBIT 74. DO YOU
13 RECOGNIZE THIS DOCUMENT, SIR?
14 A YES.
15 Q YOU WROTE THIS, YOU SERVED IT ON RTC AND YOU
16 FILED IT WITH THIS COURT; RIGHT?
17 A RIGHT. IT WAS MY BEST EFFORT AT THE TIME.
18 MR. BERRY: EXCUSE ME, COUNSEL. WHAT
19 EXHIBIT WAS THAT?
20 MR. ROSEN: 74.
21 MR. BERRY: IN THE NEW SET OF EXHIBITS?
22 MR. ROSEN: I GAVE THEM TO YOU.
23 MR. BERRY: THERE'S NO EXHIBIT 74 HERE,
24 MR. ROSEN.
25 THE COURT: DO YOU WANT TO SHOW HIM A
560
1 COPY IF HE SAYS HE DOESN'T HAVE IT.
2 MR. BERRY: I MAY BE CONFUSED.
3 BY MR. ROSEN:
4 Q WELL, LET'S TALK ABOUT YOUR BEST RECOLLECTION,
5 MR. HENSON. THIS WAS FILED ACCORDING TO THE
6 COURT'S STAMP ONE APRIL 29, 1996?
7 A THAT'S TRUE.
8 Q AND THIS WAS ONLY ONE MONTH AFTER YOU POSTED
9 NOTS 34; IS THAT RIGHT?
10 A THAT'S TRUE. IT'S ALSO--
11 Q MR. HENSON, LET'S TURN TO PAGE 3.
12 A UH-HUH.
13 Q STARTING ON LINE 15 YOU INDICATE THAT YOU HAD
14 DOWNLOADED FROM THETA.COM AND THEN YOU SAID,
15 STARTING ON LINE 20, DEFENDANT, MEANING YOU?
16 A RIGHT.
17 Q DID NOT UNCOMPRESSED?
18 THE COURT: LET ME STOP YOU FOR A MINUTE.
19 I MAY BE LOOKING AT THE WRONG PLACE. I DON'T SEE
20 THE REFERENCE THAT YOU'RE REFERRING TO.
21 MR. ROSEN: THE PAGE THAT HAS THE NUMBER
22 3 ON THE BOTTOM, YOUR HONOR.
23 THE COURT: OH, OKAY. LINE? EXCUSE ME,
24 WHICH LINE?
25 MR. ROSEN: START WITH 15, YOUR HONOR.
561
1 THE COURT: OKAY. THANK YOU.
2 BY MR. ROSEN:
3 Q YOU FIRST SAID THAT YOU DOWNLOADED THETA.COM
4 AND ON LINE 20 YOU SAID, DEFENDANT, MEANING YOU,
5 MR. HENSON?
6 A THAT'S CORRECT.
7 Q DID NOT UNCOMPRESS THESE FILES TO READ THEM
8 BECAUSE DEFENDANT WAS NOT BY THAT -- WAS NOT BY
9 THAT POINT INTERESTED IN THE CONTENT. THUS
10 DEFENDANT DOES NOT KNOW IF THE TWO FILES DOWNLOADED
11 FROM THETA.COM ACTUALLY HAD SCAMIZDAT MATERIALS?
12 A RIGHT.
13 Q THAT'S TRUE?
14 A RIGHT. WHAT'S THE PROBLEM?
15 MR. ROSEN: I MOVE TO STRIKE THE
16 COMMENTARY.
17 THE COURT: MR. HENSON, EVERYBODY HAS
18 BEEN GUILTY. MR. ROSEN HAS BEEN GUILTY; MR. BERRY
19 HAS BEEN GUILTY; YOU'VE BEEN GUILTY. EVERYBODY IS
20 GUILTY OF MAKING COMMENTS. WE'RE HERE TO ASK
21 QUESTIONS AND GET ANSWERS GIVEN AND NOT COMMENTS
22 MADE.
23 BY MR. ROSEN:
24 Q YOU SAID YESTERDAY YOU WERE FAMILIAR WITH
25 SOMETHING CALLED CYBER PUNKS?
562
1 A THAT'S TRUE, MARGINALLY.
2 Q AND THESE ARE PEOPLE WHO POST ON THE INTERNET
3 AND CONCEAL THEIR IDENTITY BY USING ANONYMOUS
4 REMAILERS; RIGHT?
5 A NO, THEY'RE NOT POSTING USING ANONYMOUS
6 MAILERS TO CONCEAL THEIR IDENTITIES. THEY'RE THE
7 PEOPLE WHO CREATE THE ANONYMOUS REMAILERS.
8 Q THEY CREATE THE OTHER REMAILERS FOR OTHER
9 PEOPLE TO USE SO THEY CAN CONCEAL THEIR IDENTITY?
10 A THAT'S CORRECT.
11 Q AND, IN FACT, MR. HENSON, MOST OF THESE
12 UNANIMOUS REMAILERS ARE USED SO PEOPLE CAN POST
13 PORNOGRAPHY; RIGHT?
14 A I DON'T KNOW THAT.
15 MR. BERRY: OBJECTION, YOUR HONOR, IT
16 CALLS FOR SPECULATION.
17 THE COURT: WELL, JUST A SECOND. I'M NOT
18 SURE WHAT RELEVANCE IT HAS TO THIS CASE. WHAT A
19 REMAILER IS, PERHAPS, RELEVANT AND WHETHER MR.
20 HENSON HAS BEEN INVOLVED WITH THEM OR A GROUP WHO
21 IS ASSOCIATED WITH REMAILERS MAY BE RELEVANT, BUT
22 THIS ISN'T A PORNOGRAPHY TRIAL. SO LET'S NOT GET
23 INTO THAT.
24 BY MR. ROSEN:
25 Q MR. HENSON THE PURPOSE THAT THE FUNCTION OF
563
1 THE REMAILERS SERVE IS THAT SOMEBODY CAN POST
2 SOMETHING AND NOBODY WILL EVER KNOW THEIR IDENTITY;
3 RIGHT?
4 A THAT'S THE EFFECT OF THEM.
5 Q SO IT'S LIKE I'LL POST SOMETHING, AND I'LL
6 INFRINGE SOMEBODY'S RIGHT, BUT I'LL WEAR A MASK SO
7 PEOPLE CAN'T IDENTIFY ME AND SUE ME; RIGHT?
8 A ESSENTIALLY.
9 Q MR. HENSON, YESTERDAY YOU INDICATED YOU WERE A
10 LONGSTANDING PROPONENT OF FREEDOM OF SPEECH AND THE
11 FIRST AMENDMENT; RIGHT?
12 A THAT'S CORRECT, AMONG OTHER THINGS.
13 Q AND YOU'VE LONGHELD THE BELIEF THAT THE FIRST
14 AMENDMENT FREEDOM OF SPEECH SHOULD BE HONORED;
15 RIGHT?
16 A THAT'S CERTAINLY TRUE.
17 Q AND YOU KNOW THAT THE GUARANTEE OF FREEDOM OF
18 SPEECH IS CONTAINED IN THE FIRST AMENDMENT; IS THAT
19 RIGHT?
20 A THAT'S TRUE.
21 Q WHAT ELSE DOES THE FIRST AMENDMENT SAY, MR.
22 HENSON?
23 A FREEDOM OF RELIGION.
24 Q AND IT COMES BEFORE FREEDOM OF SPEECH; DOESN'T
25 IT?
564
1 MR. BERRY: OBJECTION, YOUR HONOR.
2 THE COURT: SUSTAINED.
3 BY MR. ROSEN:
4 Q DO YOU BELIEVE IN FREEDOM OF RELIGION?
5 THE COURT: WELL, LET'S GO ONE AT A TIME,
6 PLEASE. THE OBJECTION IS?
7 MR. BERRY: OBJECTION, IRRELEVANT.
8 THE COURT: THE QUESTION IS IRRELEVANT.
9 MR. BERRY: HIS BELIEFS ARE AS RELEVANT
10 AS THE --
11 THE COURT: WOULD YOU REPEAT THE
12 QUESTION. I MISSED IT ALL IN CONFUSION.
13 THE WITNESS: YOUR HONOR, I WOULD LIKE TO
14 ANSWER THAT ONE.
15 THE COURT: WHETHER YOU WOULD LIKE TO
16 ANSWER IT OR NOT IS NOT THE ISSUE. YOUR ATTORNEY
17 MADE AN OBJECTION. I GOT LOST IN THE BANTER.
18 AND WOULD YOU REASK THE QUESTION?
19 DON'T ANSWER IT.
20 AND THEN MR. BERRY CAN MAKE YOUR LEGAL
21 OBJECTION, AND I'LL MAKE A RULING, IF YOU HAVE AN
22 OBJECTION.
23 BY MR. ROSEN:
24 Q MR. HENSON, DO YOU BELIEVE THAT PEOPLE SHOULD
25 BE ALLOWED FREEDOM OF RELIGION?
565
1 A YES.
2 MR. BERRY: YOUR HONOR, I'LL FOLLOW MY
3 CLIENT'S INSTRUCTIONS.
4 BY MR. ROSEN:
5 Q MR. HENSON, DO YOU BELIEVE YOUR FIRST
6 AMENDMENT RIGHT IS MORE THAN THE RIGHT OF
7 SCIENTOLOGISTS TO PRACTICE THEIR RELIGION WITHOUT
8 BEING PERSECUTED?
9 MR. BERRY: OBJECTION, THERE'S NOTHING IN
10 THE --
11 THE COURT: WELL, IT'S SUSTAINED. IT'S
12 ARGUMENTATIVE.
13 BY MR. ROSEN:
14 Q DO YOU BELIEVE THAT YOUR FIRST AMENDMENT RIGHT
15 IS MORE IMPORTANT THAN THE RIGHTS OF SCIENTOLOGISTS
16 THAN THEIR UNPUBLISHED COPYRIGHTED WORKS?
17 MR. BERRY: OBJECTION, BEYOND THE SCOPE.
18 THE COURT: SUSTAINED.
19 BY MR. ROSEN:
20 Q MR. HENSON, I BELIEVE YOU SAID YESTERDAY THAT
21 YOU HONESTLY THOUGHT THAT NOTS 34 WAS THE ILLEGAL
22 PRACTICE OF MEDICINE WHEN YOU POSTED IT; IS THAT
23 RIGHT?
24 A THAT'S CORRECT.
25 Q AND YOU SINCERELY BELIEVED THAT AND DEEPLY
566
1 BELIEVED THAT?
2 A MORE CORRECTLY IT IS NOT THE PRACTICE OF
3 MEDICINE, THE INSTRUCTIONS FOR THE PRACTICE OF
4 MEDICINE WITHOUT LICENSE.
5 Q AND YOU SINCERELY AND DEEPLY BELIEVE THAT;
6 RIGHT?
7 A WITH -- I BELIEVE COMPLETE JUSTIFICATION, YES.
8 Q AND YOU DIDN'T THINK -- YOU DON'T THINK THAT
9 PEOPLE SHOULD PRACTICE MEDICINE WHO AREN'T
10 AUTHORIZED OR LICENSED TO DO SO; DO YOU? AM I
11 CORRECT, MR. HENSON?
12 A REPEAT THE QUESTION.
13 Q DO YOU AGREE THAT PEOPLE SHOULD NOT PRACTICE
14 MEDICINE IF THEY ARE NOT AUTHORIZED OR LICENSED TO
15 DO THAT?
16 A COULD YOU GIVE ME AN EXAMPLE.
17 Q SURE. DO YOU THINK THAT IT WAS -- THAT IT IS
18 PROPER FOR YOU TO PRACTICE YOUR -- PRACTICE OF
19 CUTTING OFF SOMEBODY'S HEAD AND PUTTING IT IN THE
20 FREEZER WITHOUT A LICENSE FROM THE STATE OF
21 CALIFORNIA?
22 MR. BERRY: OBJECTION, YOUR HONOR.
23 THE COURT: SUSTAINED.
24 BY MR. ROSEN:
25 Q MR. HENSON, YOU HAVE, YOU HAVE TOLD -- YOU
567
1 HAVE MADE A STATEMENT TO ANOTHER COURT THAT ONE OF
2 YOUR HOBBIES IS AMATEUR OPEN HEART SURGERY ON AIDS
3 PATIENTS?
4 MR. BERRY: OBJECTION, YOUR HONOR. THIS
5 IS WAY BEYOND THE SCOPE OF DIRECT.
6 THE COURT: IT'S IRRELEVANT. GET ONTO
7 SOMETHING ELSE.
8 MR. BERRY: YOUR HONOR, I THINK WE SHOULD
9 HAVE A LIMITING INSTRUCTION TO THE JURY ON THIS.
10 THE COURT: I HAVE SUSTAINED YOUR
11 OBJECTIONS, MR. BERRY. I TRUST THE JURY WILL
12 CONSIDER THAT EVIDENCE THAT I ALLOW AND NOT
13 CONSIDER THAT WHICH I DON'T ALLOW.
14 (CHANGE IN REPORTERS.)
15
16
17
18
19
20
21
22
23
24
25
568
1 BY MR. ROSEN:
2 Q WELL, LET ME UNDERSTAND SOMETHING NOW, MR. HENSON.
3 THE PURPOSE THEN OF YOUR POSTING NOTS 34 TO THE INTERNET WAS TO
4 SAVE PEOPLE FROM BEING EXPOSED TO THIS?
5 A NO.
6 Q TELL ME WHAT YOUR PURPOSE WAS.
7 A MY PURPOSE WAS TO EXPOSE THE MATERIAL.
8 Q AND YOU THOUGHT THAT THIS --
9 A AND COMMENT ON IT.
10 Q AND YOU THOUGHT THIS MATERIAL WAS A CRIME?
11 A NO.
12 Q OR AN INSTRUCTION AS TO HOW TO COMMIT A CRIME?
13 A YES.
14 Q MR. HENSON, DO YOU THINK THAT THE CALIFORNIA
15 ATTORNEY GENERAL READS ARS?
16 A NO.
17 MR. BERRY: OBJECTION, YOUR HONOR, BEYOND THE
18 DIRECT.
19 THE COURT: NO. I'LL ALLOW THAT.
20 THE WITNESS: THAT'S FINE.
21 BY MR. ROSEN:
22 Q DO YOU THINK THAT THE FEDERAL DRUG ADMINISTRATION
23 READS ARS?
24 A YES.
25 Q DO YOU THINK THAT THE JUDGE GESELL READS ARS?
569
1 A NO. HE'S DEAD.
2 Q DO YOU THINK THAT THE SAN JOSE POLICE READ ARS?
3 A NO.
4 Q YOU DIDN'T CONTACT ANY OF THESE PEOPLE, DID YOU?
5 YES OR NO?
6 A NO.
7 Q MR. HENSON --
8 A I CONTACTED JUDGE WHYTE.
9 Q NO, EXCUSE ME. YOU DIDN'T CONTACT ANY OF THESE
10 PEOPLE, DID YOU?
11 A NO.
12 Q YOU HAD A BELIEF THAT, THAT THERE WAS SOME VIOLATION
13 OF THE F.D.A. LAW, AND PRIOR TO POSTING ON MARCH 30TH, 1996, YOU
14 NEVER BOTHERED TO EVEN TELEPHONE THE F.D.A.; IS THAT RIGHT? YES
15 OR NO, MR. HENSON?
16 A LET'S SEE. NO. ACTUALLY, I BELIEVE I DID TELEPHONE
17 THE F.D.A. BEFORE THAT.
18 Q WHEN DID YOU DO THAT, MR. HENSON?
19 A I WOULD HAVE TO DIG BACK INTO THE RECORDS, BUT I
20 BELIEVE I WAS IN CONTACT WITH THE F.D.A. QUITE AWHILE BEFORE I
21 CONTACTED THEM. IN FACT, WE COULD FILL IT OUT FROM THE TIME OF
22 THE RETIREMENT OF THE GUY UP IN OAKLAND THAT I WAS TALKING TO.
23 Q MR. HENSON, LET ME ASK YOU A QUESTION. IF YOU
24 THOUGHT A CRIME WAS BEING COMMITTED --
25 A YES.
570
1 Q -- WOULDN'T IT HAVE MADE SENSE TO REPORT THAT TO THE
2 PEOPLE WHO ENFORCE THAT LAW?
3 MR. BERRY: OBJECTION, ARGUMENTATIVE.
4 THE COURT: NO. I THINK THAT'S A REASONABLE
5 QUESTION.
6 THE WITNESS: I REPORTED IT TO THE COURT.
7 BY MR. ROSEN:
8 Q YES OR NO, SIR?
9 A TO THE PEOPLE WHO SHOULD BE RESPONSIBLE FOR THAT?
10 Q YES.
11 A YEAH.
12 Q OKAY. NOW, THE PEOPLE ON ARS, THERE AREN'T MANY
13 SCIENTOLOGISTS ON ARS; RIGHT?
14 A I DON'T KNOW.
15 Q MR. HENSON --
16 A THERE'S QUITE A FEW.
17 Q MR. HENSON, YOU APPRECIATE THAT NOTS 34 IS AN
18 UNPUBLISHED, WAS AN UNPUBLISHED WORK; RIGHT?
19 THE COURT: BY "UNPUBLISHED," YOU MEAN --
20 BY MR. ROSEN:
21 Q NOT PUBLISHED BY RTC OR THE AUTHOR; RIGHT?
22 A BY THAT TIME, IT HAD BEEN PUBLISHED, POSTED, ON THE
23 NET 20 TIMES.
24 Q MR. HENSON --
25 A BUT I AGREE IT WAS NOT PUBLISHED BY THE AUTHOR OR
571
1 HIS REPRESENTATIVES, UNLESS YOU COUNT THE EXPOSURE OF IT ON
2 THETA.COM.
3 Q AND MR. HENSON, LET'S TALK ABOUT THETA.COM FOR A
4 SECOND. YOU HAD NO BASIS TO BELIEVE THAT RTC POSTED ITS OWN
5 UNPUBLISHED WORK ON THETA.COM, DID YOU?
6 A I DON'T HAVE ANY REASON TO THINK NOT EITHER.
7 Q MR. HENSON, LET ME ASK YOU A QUESTION. DOES IT MAKE
8 SENSE TO YOU -- DOES IT MAKE SENSE TO YOU THAT RTC, WHO HAS
9 PROTECTED THIS WORK AS AN UNPUBLISHED WORK, POSTED IT ON THE ARS
10 ITSELF?
11 A NO. THEY PUT IT ON A WEB SITE ON THETA.COM.
12 Q YOU THINK THAT RTC, WHO IS ENFORCING ITS RIGHTS IN
13 AN UNPUBLISHED WORK, TOOK THAT WORK THAT YOU'RE ACCUSED OF
14 INFRINGING AND PUT IT UP ON A WEB SITE FOR EVERYBODY TO READ?
15 A I ASKED THEM ABOUT IT AND THEY NEVER COMPLAINED.
16 Q ANSWER MY QUESTION, MR. HENSON. IS THAT WHAT YOU
17 THINK?
18 A SORRY. REPEAT THE QUESTION.
19 Q YES. YOU THINK THAT RTC TOOK ITS UNPUBLISHED WORK
20 THAT IT IS SUING TO PROTECT THE COPYRIGHT IN, NOTS 34, AND THEN
21 RTC ITSELF POSTED IT ON A WEB SITE FOR EVERYBODY TO READ? IS
22 THAT WHAT YOU BELIEVE?
23 A THEY MIGHT HAVE.
24 Q OKAY. MR. HENSON --
25 A I TRIED TO FIND OUT.
572
1 Q MR. HENSON, YOU UNDERSTOOD THAT NOTS 34 IS
2 ADMINISTERED ONLY BY THE CHURCH OF SCIENTOLOGY TO PEOPLE WHO
3 WERE TAKING THAT, THAT SESSION, IF YOU WILL; RIGHT?
4 A NO.
5 Q MR. HENSON, DID YOU BELIEVE THAT NOTS 34 WAS BEING
6 ADMINISTERED TO THE PUBLIC?
7 A NO.
8 Q WELL --
9 A BUT SCIENTOLOGISTS THAT ARE IN THE CHURCH ARE NOT
10 THE ONLY PEOPLE WHO USE NOTS.
11 Q OKAY. IN ANY EVENT, YOU THOUGHT THAT HAVING
12 CONCLUDED THAT NOTS 34 WAS, TAUGHT SOME CRIMINAL ACTIVITY, THAT
13 THE BEST WAY TO STOP THIS CRIMINAL ACTIVITY WAS TO TAKE THE VERY
14 DOCUMENT AND POST IT ON THE INTERNET; RIGHT?
15 A CALL ATTENTION TO THIS PRACTICE.
16 Q OKAY. LET'S GO OVER THE CHRONOLOGY FOR A MOMENT,
17 MR. HENSON.
18 THE FIRST TIME YOU EVER READ NOTS 34 WAS AFTER
19 MR. WARD WAS ENJOINED BY THIS COURT; RIGHT?
20 A ACTUALLY, I DON'T KNOW.
21 Q YOU DON'T REMEMBER?
22 A NO. I PROBABLY READ IT IN APRIL OF '95.
23 Q MR. HENSON, DIDN'T YOU TESTIFY YESTERDAY THAT YOU
24 DIDN'T EVEN UNDERSTAND IT?
25 A THAT'S TRUE. BUT THAT DOESN'T MEAN I DIDN'T READ IT.
573
1 Q AND DIDN'T YOU -- AND WHEN WAS IT, MR. HENSON, THAT
2 YOU READ JUDGE GESELL'S ORDER THAT YOU RELIED UPON?
3 A SOMETIME BEFORE MARCH 30, BECAUSE I, I MENTION IT IN
4 THE LETTER.
5 Q CAN YOU TELL ME WHEN? WAS IT MARCH OF 1996?
6 A I REALLY DON'T KNOW.
7 Q WAS IT AFTER MR. WARD WAS ENJOINED?
8 A NO, I DON'T THINK SO.
9 Q MR. HENSON, BASED ON READING NOTS 34 AND
10 JUDGE GESELL'S ORDER, YOU CONCLUDED THAT NOTS 34 WAS A VIOLATION
11 OF F.D.A. LAW?
12 A IT'S A VIOLATION OF THE JUDGE'S ORDER IS MY OPINION.
13 Q AND YOUR RECOLLECTION OF THAT IS THAT THE JUDGE'S
14 ORDER WAS AN INJUNCTION AGAINST SCIENTOLOGY FROM USING AN
15 E-METER?
16 A NO.
17 Q WHAT WAS IT?
18 A IT WAS AN INJUNCTION AGAINST SCIENTOLOGY FOR
19 CLAIMING TO HEAL USING E-METERS AS I UNDERSTAND IT.
20 Q DID YOU EVER READ JUDGE GESELL'S DECISION,
21 MR. HENSON?
22 A YES, I DID.
23 Q OKAY. SO YOU UNDERSTOOD THAT IT WAS AN INJUNCTION
24 AGAINST SCIENTOLOGY FOR MAKING ANY CLAIMS TO THE PUBLIC THAT THE
25 E-METER CAN HEAL; IS THAT RIGHT?
574
1 A I DON'T BELIEVE THAT THERE WAS THE CAVEAT OF THE
2 PUBLIC IN THERE. I BELIEVE IT WAS MAKING CLAIMS, PERIOD.
3 Q OKAY. MR. HENSON, ON MARCH 26TH, YOU WROTE A LETTER
4 TO JUDGE WHYTE AND YOU HAND DELIVERED IT, RIGHT?
5 A TO THE CLERK.
6 Q TO THE CLERK. AND THAT'S THE LETTER IN WHICH YOU
7 SAID TO JUDGE WHYTE, "I BELIEVE THAT THE INJUNCTION AGAINST
8 MR. WARD IS, VIOLATES MY FIRST AMENDMENT RIGHTS."
9 A IT WAS INTERPRETED THAT WAY BY THE -- THAT WAS THE
10 SPIN THAT HELENA KOBRIN WAS PUTTING ON IT AND POSTING IT ON THE
11 NET.
12 Q MR. HENSON, YOU UNDERSTOOD THAT MR. WARD WAS
13 INFRINGED, EXCUSE ME, WAS ENJOINED FROM POSTING NOTS 34, AND
14 ANYBODY THAT WAS ACTING IN CONCERT WITH HIM RIGHT; RIGHT? YOU
15 UNDERSTOOD THAT, DIDN'T YOU?
16 A NO, I DID NOT.
17 Q DID YOU BELIEVE, MR. HENSON, THAT BECAUSE YOU WERE
18 NOT COVERED BY THE JUDGE'S INJUNCTION AGAINST JUDGE WARD, THAT
19 SOMEHOW THAT WAS A LICENSE FOR YOU TO GO OUT AND POST NOTS 34?
20 THE COURT: I DON'T THINK YOU MEANT TO REFER TO
21 JUDGE WARD.
22 MR. ROSEN: I'M SORRY, JUDGE WHYTE. I APOLOGIZE,
23 YOUR HONOR.
24 THE WITNESS: COULD YOU REPEAT THE QUESTION?
25 BY MR. ROSEN:
575
1 Q SURE. DID YOU BELIEVE THAT BECAUSE YOU WERE NOT
2 COVERED BY THE INJUNCTION ISSUED AGAINST MR. WARD BY JUDGE WHYTE
3 BECAUSE YOU WERE NOT COVERED BY IT, YOU WERE NOT A PARTY TO THAT
4 CASE, DO YOU BELIEVE THAT THAT WAS A LICENSE FOR YOU TO GO OUT
5 AND POST NOTS 34 YOURSELF?
6 A I DIDN'T KNOW. THAT'S WHY I WROTE THE LETTER.
7 Q MR. HENSON, HAVE YOU EVER, IN YOUR LITIGATION
8 EXPERIENCE, AND YOU'VE DESCRIBED IT FOR US THE OTHER DAY, HAVE
9 YOU EVER WRITTEN A LETTER TO A FEDERAL JUDGE BEFORE --
10 A NO.
11 Q -- ASKING FOR AN OPINION?
12 A NO.
13 Q MR. HENSON, WHAT POSSIBLE BASIS DID YOU HAVE TO
14 BELIEVE THAT FEDERAL JUDGES SIT HERE AND ONE OF THEIR DUTIES IS
15 TO GIVE YOU OPINIONS IN CASES IN WHICH YOU'RE NOT EVEN A PARTY?
16 WHAT BASIS DID YOU HAVE TO BELIEVE THAT, SIR?
17 A THE GESELL DECISION. I FIGURED THAT IF YOU HAD
18 SOMETHING WHICH WAS A VIOLATION OF AN ORDER FROM A FEDERAL
19 COURT, THAT INFORMING ANOTHER FEDERAL JUDGE THAT AN ORDER WAS
20 BEING VIOLATED POSSIBLY BY SOMETHING THAT WAS IN HIS COURT WAS
21 AS GOOD A PLACE AS ANY. I DIDN'T HAVE ANY IDEA WHERE I SHOULD
22 HAVE TAKEN IT.
23 Q WELL, YOU KNEW THAT, BY READING JUDGE GESELL'S
24 DECISION, YOU KNOW THAT JUDGE GESELL SAT IN THE UNITED STATES
25 DISTRICT COURT IN WASHINGTON D.C.; RIGHT?
576
1 A I ACTUALLY TRIED TO TRACK HIM DOWN.
2 Q ARE THERE OTHER JUDGES IN THAT COURT, MR. HENSON, IN
3 THE DISTRICT, IN THE FEDERAL COURT IN WASHINGTON D.C.?
4 A YES. I HAD QUITE A LIST OF THEM AT THE TIME.
5 Q THEN WHY DIDN'T YOU WRITE TO THEM INSTEAD OF
6 JUDGE WHYTE?
7 A IT SEEMED TO ME THAT JUDGE WHYTE HAD A MORE
8 IMMEDIATE INTEREST IN THE PROBLEM.
9 Q YOU BELIEVED, THOUGH, THAT BY WRITING A LETTER TO
10 JUDGE WHYTE IN WHICH YOU START OFF BY SAYING "THESE ARE MY FIRST
11 AMENDMENT RIGHTS," YOU BELIEVE THAT THE JUDGE HAD SOME SORT OF
12 AN OBLIGATION TO ANSWER YOU?
13 A I DIDN'T BELIEVE HE HAD AN OBLIGATION TO ANSWER ME,
14 BUT I THOUGHT HE MIGHT CLARIFY THE MATTER.
15 Q AND THEN YOU SAID AT THE END OF YOUR LETTER, "AND BY
16 THE WAY, JUDGE WHYTE, IF I DON'T HEAR FROM YOU, I ASSUME IT'S
17 OKAY TO GO DO WHAT I WANT TO DO." THAT'S WHAT YOU TOLD THE
18 JUDGE; RIGHT?
19 A COULD YOU READ THAT PART OF THE LETTER?
20 Q SIR, DO YOU RECALL SAYING THAT?
21 A NO.
22 Q "IF I DO NOT HEAR FROM YOU, I ASSUME THAT MY
23 STATEMENTS ARE CORRECT."
24 A NO.
25 Q YOU WANT ME TO READ IT? I'LL READ IT TO YOU. LAST
577
1 SENTENCE OF EXHIBIT 1-2.
2 THE COURT: HOLD ON A MINUTE.
3 BY MR. ROSEN:
4 Q THE LETTER TO JUDGE WHYTE, "ON THE OTHER HAND" --
5 THE COURT: WAIT A MINUTE, PLEASE.
6 MR. BERRY: OBJECTION, YOUR HONOR. I'D ASK THAT HE
7 READ FROM DEFENDANT'S EXHIBIT A, WHICH IS THE LETTER TO THE
8 JUDGE.
9 MR. ROSEN: IT'S THE SAME THING.
10 THE COURT: I'M NOT SURE IT IS.
11 MR. ROSEN: YEAH, IT IS.
12 THE COURT: WHY DON'T YOU, JUST TO MAKE SURE THERE'S
13 NO MISTAKE, READ FROM --
14 MR. ROSEN: I'LL READ IT FROM EXHIBIT A.
15 THE COURT: -- EXHIBIT A. MR. ROSEN (HANDING).
16 MR. ROSEN: THANK YOU, YOUR HONOR.
17 Q QUOTE, "ON THE OTHER HAND, IF YOU," MEANING
18 JUDGE WHYTE, "IF YOU FEEL THE T.R.O. DOES PRECLUDE
19 QUOTING EXAMPLES OF THE COPYRIGHTED TRADE SECRET
20 CRIMINAL INSTRUCTION MANUALS OF THE CHURCH OF
21 SCIENTOLOGY, PLEASE LET ME KNOW."
22 THAT'S WHAT YOU WROTE; RIGHT?
23 A THAT'S CORRECT.
24 Q YOU EXPECTED THE JUDGE TO GIVE YOU AN OPINION ON A
25 CASE IN WHICH YOU WERE NOT EVEN A PARTY; RIGHT?
578
1 A I DIDN'T KNOW WHETHER I WAS A PARTY OR NOT.
2 Q WELL, MR. HENSON, YOU KNOW -- YOU'VE BEEN A PARTY TO
3 THREE LAWSUITS BEFORE THIS ONE?
4 MR. BERRY: OBJECTION, YOUR HONOR.
5 BY MR. ROSEN:
6 Q RIGHT?
7 MR. BERRY: I THOUGHT WE'D EXCLUDED ALL THAT STUFF,
8 AT HIS REQUEST.
9 THE COURT: WELL, THE QUESTION IS NOT THE SUBSTANCE
10 OF THOSE LAWSUITS. I THINK THE QUESTION IS ONLY GOING TO
11 WHETHER HE KNEW WHAT A PARTY TO A LAWSUIT WAS, AND I'LL ALLOW
12 THAT.
13 MR. ROSEN: I'LL REPHRASE THE QUESTION.
14 Q DIDN'T YOU KNOW, BEFORE THIS LAWSUIT AND BEFORE THE
15 WARD LAWSUIT, WHAT A PARTY TO A LAWSUIT IS?
16 A ONE OF YOUR LAWYERS, HELENA, HAD MADE THE CLAIM ON
17 THE NET --
18 Q HOW ABOUT ANSWERING MY QUESTION?
19 THE COURT: ANSWER HIS QUESTION.
20 BY MR. ROSEN:
21 Q WERE YOU A PARTY -- DID YOU BELIEVE YOU WERE A PARTY
22 TO THE WARD LAWSUIT?
23 A I DIDN'T KNOW.
24 Q MR. HENSON, IN TERMS OF KNOWING WHETHER YOU'RE A
25 PARTY, DO YOU HAVE TO DO ANYTHING OTHER THAN LOOK AT THE CAPTION
579
1 BOX THAT SAYS, IN THIS CASE, FOR EXAMPLE, RTC AGAINST
2 MR. HENSON?
3 A IF YOU READ THE LETTER, IT'S GOT MY QUESTIONS IN IT.
4 Q MR. HENSON, COULD YOU ANSWER MY QUESTION, PLEASE?
5 ARE YOU TELLING THIS JURY THAT YOU HONESTLY DID NOT KNOW WHETHER
6 YOU WERE A PARTY TO THE WARD LAWSUIT AT THE TIME YOU WROTE THE
7 LETTER ON MARCH 26TH TO JUDGE WHYTE?
8 A "PARTY" IS NOT THE CRITICAL THING. WAS I SUBJECT TO
9 THE T.R.O.?
10 Q COULD YOU ANSWER MY QUESTION, PLEASE?
11 A TRY IT AGAIN.
12 Q WERE YOU A PARTY -- ARE YOU TELLING US --
13 A I WAS NOT A NAMED PARTY.
14 Q OKAY. THANK YOU, SIR.
15 NOW, MR. HENSON, ON THE 29TH OF MARCH, YOU WERE HERE
16 IN JUDGE WHYTE'S COURTROOM; RIGHT?
17 A THAT'S CORRECT.
18 Q AND YOU SPOKE WITH THE COURTROOM CLERK, DIDN'T YOU?
19 A THAT IS CORRECT TOO.
20 Q AND THE COURTROOM CLERK TOLD YOU THAT THE JUDGE IS
21 NOT HERE TO ANSWER THESE LETTERS LIKE YOU WROTE, THAT IF YOU
22 WANTED ADVICE, YOU SHOULD GO TO AN ATTORNEY? ISN'T THAT WHAT
23 THE CLERK SAID?
24 A I DON'T REMEMBER THE EXACT WORDS.
25 Q WAS THAT THE SUBSTANCE OF WHAT THE CLERK SAID?
580
1 A I DON'T REMEMBER WHETHER SHE ADVISED AN ATTORNEY OR
2 NOT.
3 Q THE FACT OF THE MATTER IS, MR. HENSON, YOU DID NOT
4 CONSULT AN ATTORNEY?
5 A THAT'S TRUE.
6 Q YOU JUST PROCEEDED TO POST NOTS 34 ON MARCH 30TH AND
7 AGAIN ON MARCH 31 WITHOUT EVER ASKING AN ATTORNEY; IS THAT
8 RIGHT?
9 A THAT'S TRUE.
10 Q AND IN THE PAST, MR. HENSON, WHEN YOU WANTED TO
11 CONSULT AN ATTORNEY, FOR EXAMPLE, LIKE WHEN YOU SUED -- YOU
12 MENTIONED THE OTHER DAY YOU SUED COUNTY OF RIVERSIDE, YOU HAD AN
13 ATTORNEY REPRESENTING YOU; RIGHT?
14 A THAT'S CORRECT.
15 Q OKAY.
16 A I WROTE THE LAWSUIT, THOUGH.
17 Q YOU WROTE IT?
18 A YES.
19 Q WE'RE GOING TO GET TO THAT.
20 OKAY. MR. HENSON, DO I UNDERSTAND YOUR TESTIMONY
21 FROM YESTERDAY THAT EVERYTHING YOU KNEW AND UNDERSTOOD ABOUT
22 SCIENTOLOGY, AND ABOUT NOTS 34, YOU LEARNED FROM READING
23 POSTINGS ON THE ARS?
24 A NO.
25 Q MR. HENSON, ISN'T IT A FACT THAT YOU'VE NEVER READ
581
1 ANY OF THE PUBLISHED WORK OF SCIENTOLOGY AS OF MARCH 30TH, '96?
2 A NO.
3 Q WHAT HAD YOU READ?
4 A THE PROBLEM OF WORK HISTORY OF MAN, I READ PART OF
5 SCIENCE OF SURVIVAL, PIECES OF DIANETICS.
6 Q PIECES OF IT?
7 A YEAH. I HAVE A RATHER, NOT EXTENSIVE LIBRARY, BUT
8 I'VE GOT AT LEAST HALF A DOZEN OR A DOZEN SCIENTOLOGY BOOKS OF
9 ONE SORT OR NOT ANOTHER.
10 Q WHEN DID YOU READ THESE, MR. HENSON?
11 A MOST OF THEM ARE BEFORE -- I CAN'T GIVE EXACT DATES
12 WHEN I PURCHASED THEM, BUT I BELIEVE MOST OR ALL OF THEM WERE
13 BEFORE MARCH 30, 1996.
14 Q WHAT ABOUT -- WHAT ABOUT THE UNPUBLISHED WORKS,
15 MR. HENSON? HAD YOU READ ANY UNPUBLISHED WORKS OTHER THAN NOTS
16 34?
17 A OH, YES.
18 Q HOW MANY HAD YOU READ?
19 A OT I THROUGH VII. I SKIMMED THEM ANYWAY.
20 Q MR. HENSON, DO YOU RECALL A HEARING IN THIS COURT
21 APRIL 12TH, 1996?
22 A LET'S SEE. APRIL 12, I GUESS THAT WOULD HAVE BEEN
23 THE FIRST HEARING, YES.
24 Q MR. HENSON, DO YOU RECALL THE JUDGE ASKING YOU, I'M
25 ON PAGE 8 OF EXHIBIT 69, YOUR HONOR AND MR. BERRY, STARTING ON
582
1 LINE 19.
2 DO YOU RECALL THE JUDGE ASKING YOU, "AND FOR THE
3 DOCUMENTS OTHER THAN -- WELL, HAVE YOU SEEN ANY
4 PORTION OF ANY OF THE DOCUMENTS OTHER THAN 1, 24,
5 34, 35, 36 AND 42?"
6 AND YOUR RESPONSE WAS, "IN FACT, YOUR HONOR, THE
7 ONLY ONE I'VE REALLY LOOKED AT IN ANY DEPTH IS 34."
8 A THAT WAS WITH RESPECT TO THE NOTS SERIES.
9 Q THAT'S THE ONLY ONE YOU LOOKED AT?
10 A NOT THE OTHER OT MATERIAL.
11 Q THAT'S THE ONLY ONE YOU LOOKED AT, RIGHT, IN ANY
12 DEPTH?
13 A RIGHT. I SKIMMED EVERYTHING THAT CAME ACROSS THE
14 NET.
15 Q MR. HENSON, IS IT CORRECT THAT THE BELIEFS THAT YOU
16 TESTIFIED TO YESTERDAY IN TERMS OF WHAT YOU THOUGHT NOTS 34 WAS
17 AND YOUR EXPLANATION OF, AND YOUR TRANSLATION, IF YOU WILL, THIS
18 IS ALL DERIVED FROM WHAT YOU READ ON ARS, OR PRIMARILY FROM WHAT
19 YOU READ ON ARS?
20 A PRIMARILY.
21 Q MR. HENSON, AT NO TIME BEFORE FORMING THIS OPINION
22 THAT NOTS 34 WAS SOME SORT OF A CRIMINAL WORK, AT NO TIME DID
23 YOU EVER ASK SCIENTOLOGY, ANY SCIENTOLOGIST, TO EXPLAIN TO YOU
24 OR WHETHER IT WAS A CRIMINAL ACT; RIGHT? IS THAT RIGHT,
25 MR. HENSON?
583
1 A NO, THAT'S NOT CORRECT.
2 Q MR. HENSON, DID YOU ASK THE CHURCH OF SCIENTOLOGY TO
3 EXPLAIN IT TO YOU OR TELL YOU IF IT WAS A CRIMINAL ACT?
4 A NO.
5 Q THANK YOU.
6 A I ASKED THEIR FORMER MEMBERS.
7 Q HAD YOU ASKED ANY FORMER MEMBERS WHO HAD EVER HAD
8 NOTS 34?
9 A YES.
10 Q AND DID THEY EXPLAIN IT TO YOU?
11 A BACKGROUND FOR IT, YES.
12 Q HOW ABOUT ALL THE EXPLANATIONS YOU GAVE US
13 YESTERDAY? DID THEY EXPLAIN ALL OF THAT TO YOU, MR. HENSON?
14 A MUCH OF THAT BACKGROUND MATERIAL CAME OUT FROM
15 POSTINGS, PARTICULARLY BY DENNIS ERLICH, WHO WAS VERY HIGH IN
16 THE CHURCH AT ONE TIME.
17 (CHANGE IN REPORTERS.)
18
19
20
21
22
23
24
25
584
1 BY MR. ROSEN:
2 Q MR. HENSON, YOU HAVE, IF I UNDERSTAND YOU, YOU
3 HAVE TESTIFIED YESTERDAY TO YOUR RECOLLECTIONS OF
4 WHAT YOU HAD READ AND SEEN POSTED ON ARS MORE THAN
5 TWO YEARS AGO, RIGHT, PRIOR TO MARCH 30TH, 1996?
6 A RIGHT.
7 Q AND YOU'RE ABLE TO SIT HERE IN THIS COURTROOM
8 YESTERDAY AND TELL US WHAT YOU SAW POSTED AND WHAT
9 YOU REMEMBER READING ON ARS MORE THAN TWO YEARS
10 AGO; IS THAT RIGHT?
11 MR. BERRY: OBJECTION, ARGUMENTATIVE.
12 THE COURT: I'LL ALLOW IT.
13 THE WITNESS: IT'S LIKE TAKING A COURSE
14 TWO YEARS AGO, YOU REMEMBER A LOT OF THE MATERIAL
15 FROM IT, YOU REMEMBER HOW TO DO THINGS, YOU
16 REMEMBER WHAT THE WORDS MEAN. IT DOESN'T MEAN THAT
17 I REMEMBER IN DETAIL WHAT I READ.
18 BY MR. ROSEN:
19 Q MR. HENSON, AT THE SAME TIME THAT YOU'VE TOLD
20 US WHAT YOU READ MORE THAN TWO YEARS AGO, AM I
21 CORRECT THAT WHEN YOU WERE DEPOSED IN MAY OF 1996,
22 YOU COULDN'T REMEMBER SUING THE FBI?
23 A I KNOW WHY.
24 Q IS THAT RIGHT? IS IT RIGHT THAT YOU CAN'T
25 REMEMBER IT, SIR?
585
1 A MY MEMORY IS NOT PERFECT.
2 Q NOW, MR. HENSON, LET'S TALK ABOUT WHAT ELSE
3 YOU CONSULTED. DID YOU EVER READ THE FDA LAW?
4 A PROBABLY SOME PIECES OF THE FDA LAW.
5 Q COULD YOU TELL US WHAT PIECES YOU READ?
6 A PARTICULARLY SOME OF THE STUFF ON VITAMIN
7 SUPPLEMENTS, I'VE SEEN THAT IN ANOTHER FORM
8 ENTIRELY.
9 Q BUT YOUR ARGUMENTS HERE -- EXCUSE ME, YOUR
10 DEFENSE HERE IS THAT YOU THOUGHT THAT UNDER JUDGE
11 GESSELL'S ORDER THAT THE USE OF THE E-METER IN SOME
12 WAY WAS A VIOLATION OF THE FDA LAW; RIGHT?
13 MR. BERRY: OBJECTION, IT MISQUOTES THE
14 EVIDENCE.
15 THE WITNESS: I'M SORRY. COULD YOU
16 REPHRASE THAT.
17 THE COURT: HE CAN STATE WHETHER THAT'S
18 HIS POSITION, IF IT IS NOT, HE CAN CORRECT IT.
19 BY MR. ROSEN:
20 Q IS THAT YOUR POSITION THAT IN JUDGE GESSELL'S
21 ORDER THAT SOME USE OF THE E-METER IS A VIOLATION
22 OF THE FDA LAW?
23 A I BELIEVE IT'S ON CLAIMS OF THE -- CLAIMS OF
24 THE E-METER.
25 Q HAVE YOU EVER READ THAT SECTION OF THE FDA LAW
586
1 WHICH ADDRESSES MEDICAL DEVICES AND THE CLAIMS THAT
2 ONE CAN MAKE ABOUT THEM?
3 A PROBABLY HAVE SEEN REFERENCES TO IT AND
4 PERHAPS SHORTAGE QUOTES OUT OF IT.
5 Q SHORTAGE QUOTES, IS THAT WHAT YOU SAID?
6 A RIGHT.
7 Q SO YOU'RE AWARE THAT ALL THAT THE FDA
8 REGULATES ON MEDICAL DEVICES IS WHAT A
9 MANUFACTURER -- WHAT A MANUFACTURER CAN MAKE AND
10 USE TO PROMOTE THE SALE OF A DEVICE; RIGHT? YOU'RE
11 AWARE OF THAT?
12 A IT'S MORE EXTENSIVE THAN THAT.
13 Q MR. HENSON, YOU'RE AWARE THAT THE FDA LAW DOES
14 NOT REGULATE ANY DEVICE, WHETHER IT BE AN E-METER,
15 A ROSARY OR ANY OTHER DEVICE USED BY A RELIGION;
16 ISN'T THAT RIGHT?
17 MR. BERRY: OBJECTION, YOUR HONOR. IT
18 CALLS FOR A LEGAL CONCLUSION.
19 THE COURT: WE'RE TALKING HIS STATE OF
20 MIND AT THE TIME HE POSTED. DID HE HAVE AN
21 UNDERSTANDING AS TO WHAT THE FDA REGULATED AND DID
22 IT REGULATE THE ITEMS THAT MR. ROSEN HAS JUST
23 DESCRIBED?
24 THE WITNESS: THE FDA FORCED SCIENTOLOGY
25 TO PUT A DISCLAIMER LABEL ON EVERY E-METER.
587
1 MR. ROSEN: YOUR HONOR, I MOVE TO STRIKE
2 IT AND ASK FOR AN ANSWER TO MY QUESTION.
3 THE WITNESS: YES.
4 BY MR. ROSEN:
5 Q THE ANSWER WAS YES TO MY QUESTION?
6 A I'M NOT EXACTLY SURE. COULD YOU REPEAT THE
7 QUESTION.
8 MR. ROSEN: YOUR HONOR, MAY I ASK THE
9 REPORTER TO READ IT BACK.
10 THE COURT: YES.
11 (WHEREUPON, THE RECORD WAS READ BY THE
12 COURT REPORTER.)
13 THE WITNESS: I THINK --
14 THE COURT: I THINK YOU WANT TO REPHRASE
15 THE QUESTION. AND CORRECT ME IF THIS IS NOT HIS
16 QUESTION, THE QUESTION I THINK HE'S ASKING YOU IS
17 AS OF MARCH OF '96, WHEN YOU POSTED, DID YOU
18 BELIEVE THAT THE FDA REGULATED DEVICES USED BY A
19 RELIGION; IS THAT IT?
20 MR. ROSEN: YES, YOUR HONOR.
21 THE WITNESS: YES.
22 BY MR. ROSEN:
23 Q YOU DID BELIEVE IT?
24 A THEY SUED SCIENTOLOGY OVER IT.
25 Q JUST SAY YES. WE'LL GET TO IT. PLEASE, JUST
588
1 ANSWER YES OR NO IF YOU COULD.
2 MR. HENSON, WERE YOU AWARE IN MARCH OF
3 1996 THAT THE STATE OF CALIFORNIA REGULATES THE
4 PRACTICE OF MEDICINE?
5 A YES.
6 Q AND DID YOU BOTHER TO GO READ THE CALIFORNIA
7 STATUTE ON THE REGULATION OF THE PRACTICE OF
8 MEDICINE?
9 A NO.
10 Q BEFORE YOU MADE THIS ALLEGATION AND THIS
11 DEFENSE THAT YOU THOUGHT THAT NOTS 34 WAS AN
12 ILLEGAL PRACTICE OF MEDICINE, DID YOU BOTHER TO
13 READ THE STATUTE?
14 A NO.
15 Q MAY I SHOW IT TO YOU, MR. HENSON.
16 MR. ROSEN: YOUR HONOR, I'M GOING TO MOVE
17 FOR THE ADMISSION OF THIS AS EXHIBIT 63.
18 MR. BERRY: IT'S IRRELEVANT.
19 THE COURT: THE QUESTION IS HIS STATE OF
20 MIND. I'M GIVING AN INSTRUCTION WITH RESPECT TO
21 REGULATORY BODIES SO I'M NOT GOING TO ADMIT THIS
22 SECTION.
23 MR. ROSEN: YOUR HONOR, I OFFER IT NOT
24 FOR STATE OF MIND BUT TO SHOW WHAT A REASONABLE
25 PERSON HAS FOUND HAD HE LOOKED AT THE OBJECTIVITY
589
1 PORTION OF THE DEFENSE.
2 MR. BERRY: OBJECTION, YOUR HONOR, I
3 DON'T THINK --
4 THE COURT: WHAT SECTION DO YOU WANT TO
5 OFFER?
6 MR. ROSEN: 2063, 2063.
7 THE WITNESS: CAN I GET A LOOK AT IT? I
8 MAY NOT OBJECT.
9 BY MR. ROSEN:
10 Q MR. HENSON, WOULD YOU TAKE A LOOK.
11 THE COURT: JUST A SECOND. HE ASKED TO
12 SEE IT, AND I TOLD HIM.
13 MR. ROSEN: I DIDN'T HEAR HIM, JUDGE.
14 THE COURT: IT PROBABLY WAS NOT AUDIBLE.
15 THE WITNESS: I'VE GOT NO PROBLEM WITH
16 THAT.
17 THE COURT: I WILL ALLOW IT SOLELY FOR
18 THE PURPOSES OF WHATEVER LIGHT IT SHEDS ON WHETHER
19 OR NOT THIS WAS REASONABLY AVAILABLE TO SOMEONE.
20 BY MR. ROSEN:
21 Q OKAY. NOW, MR. HENSON, THE CALIFORNIA STATUTE
22 WAS REASONABLY AVAILABLE IN A LAW LIBRARY TO YOU IN
23 MARCH OF '96, WASN'T IT?
24 A THAT'S CERTAINLY TRUE.
25 Q AND HAD YOU BOTHERED TO CONSULT THE CALIFORNIA
590
1 STATUTE, YOU WOULD HAVE FOUND UNDER SECTION 2063
2 THE FOLLOWING WORDS?
3 A CAN WE PUT IT ON THE ELMO SO THAT EVERYBODY
4 COULD SEE IT.
5 Q SURE.
6 THE WITNESS: CAN I READ IT? "NOTHING IN
7 THIS CHAPTER --"
8 BY MR. ROSEN:
9 Q WAIT A MINUTE, MR. HENSON. JUST GIVE US A
10 CHANCE. DO YOU SEE THE PART THAT IS HIGHLIGHTED,
11 MR. HENSON?
12 A THAT'S RIGHT.
13 Q "NOTHING IN THIS CHAPTER SHALL BE CONSTRUED SO
14 AS TO DISCRIMINATE AGAINST --" SKIPPING
15 OVER -- "NOR SHALL IT REGULATE, PROHIBIT
16 OR APPLY TO ANY KIND OF TREATMENT BY
17 PRAYER, NOR INTERFERENCE IN ANY WAY WITH
18 THE PRACTICE OF RELIGION."
19 DO YOU SEE THAT?
20 A THAT'S ABOUT WHAT I WOULD HAVE EXPECTED TO
21 FIND HAD I GONE LOOKING FOR IT. SO WHAT?
22 MR. ROSEN: YOUR HONOR, MAY I HAVE AN
23 INSTRUCTION TO THIS WITNESS?
24 THE WITNESS: EXCUSE ME.
25 THE COURT: YOU KNOW NO COMMENTS, MR.
591
1 HENSON.
2 BY MR. ROSEN:
3 Q BUT YOU DIDN'T EVEN BOTHER TO LOOK AT IT, MR.
4 HENSON, AND THIS IS THE FIRST TIME THAT YOU'RE
5 SEEING IT?
6 A IT'S NOT UNEXPECTED.
7 Q MR. HENSON, YOU DID NOT BOTHER TO LOOK AT IT?
8 A I DID NOT LOOK IT UP.
9 THE COURT: THIS IS GETTING
10 ARGUMENTATIVE. LET'S MOVE ON TO SOMETHING ELSE.
11 BY MR. ROSEN:
12 Q LET'S TALK ABOUT JUDGE GESSELL'S ORDER. YOU
13 READ THIS SOME TIME BEFORE MR. WARD'S INJUNCTION?
14 A CORRECT. CERTAINLY AT LEAST BEFORE THE LETTER
15 BECAUSE I REFERENCED IT IN THE LETTER.
16 Q AND JUST SO I UNDERSTAND, IS THAT THE
17 RECOLLECTION OF THE GOVERNMENT, THE FDA SUED
18 SCIENTOLOGY AND GOT AN INJUNCTION AGAINST
19 SCIENTOLOGY PROMOTING THE E-METER; IS THAT RIGHT?
20 A THERE WAS A LOT ELSE IN THERE.
21 Q AND NOW, MR. HENSON, FIRST OF ALL, LET'S TALK
22 ABOUT AN INJUNCTION. YOU KNOW WHAT AN INJUNCTION
23 IS; DON'T YOU?
24 A BY NOW, YES.
25 Q BUT YOU KNEW ABOUT IT THEN, DIDN'T YOU?
592
1 A RIGHT.
2 THE COURT: WAIT. LET HIM FINISH HIS
3 ANSWER.
4 THE WITNESS: AN INJUNCTION IS AN ORDER
5 BY THE COURT FORBIDDING SOMEBODY TO DO SOMETHING,
6 TYPICALLY.
7 BY MR. ROSEN:
8 Q AND USUALLY IT HAS LANGUAGE LIKE "YOU ARE
9 HEREBY ENJOINED FROM DOING SOMETHING"?
10 A THAT'S RIGHT.
11 Q YOU FOUND THAT LANGUAGE IN JUDGE GESSELL'S
12 DECISION ENJOINING SCIENTOLOGY FROM DOING
13 SOMETHING?
14 A ACTUALLY, I BELIEVE IT WAS IN THE FORM OF AN
15 AGREED UPON ORDER BY THE COURT.
16 Q AN INJUNCTION, MR. HENSON, AGAINST
17 SCIENTOLOGY?
18 A I AM NOT EXACTLY CERTAIN ABOUT THE DIFFERENCES
19 BETWEEN INJUNCTIONS AND ORDERS, BUT THEY BOTH HAVE
20 THE EFFECT FORBIDDING SOMEONE TO DO SOMETHING.
21 Q WELL, LET ME SEE IF I CAN REFRESH YOUR
22 RECOLLECTION, MR. HENSON, SINCE YOU READ THE
23 GESSELL DECISION?
24 A A LONG TIME AGO.
25 Q SINCE YOU READ IT A LONG TIME AGO AND IT WAS
593
1 THE BASIS OF YOUR CONCLUSION AS TO YOUR GOOD FAITH
2 DEFENSE HERE, THAT WAS A DECISION ISSUED IN 1971
3 INVOLVING SOME PEOPLE WHO WERE SELLING E-METERS TO
4 THE PUBLIC; RIGHT?
5 A AMONG OTHER THINGS, YES.
6 Q INCLUDING IN THE HEADING THE WORD DRUGGISTS
7 WAS SELLING E-METERS; RIGHT?
8 A AMONG OTHER THINGS, YES.
9 Q AND THEY WERE SELLING THESE E-METERS AND THEY
10 WERE MAKING CLAIMS THAT THESE E-METERS CURED
11 MEDICAL CONDITIONS; RIGHT?
12 A NO.
13 Q THEY WERE SELLING E-METERS AND THE FDA SEIZED
14 THOSE METERS THAT WERE BEING SOLD TO THE PUBLIC;
15 RIGHT?
16 A I DON'T BELIEVE THAT THEY -- THAT THEY SEIZED
17 JUST THOSE METERS.
18 Q MR. HENSON, WHEN YOU SAY THAT YOU HAVE READ
19 JUDGE GESSELL'S DECISION, YOU'RE SOMEWHAT OF AN
20 AMATEUR LAWYER; AREN'T YOU?
21 A I REALLY DON'T CONSIDER MYSELF TO BE THAT.
22 Q WELL, YOU TOLD US YOU DRAFTED A COMPLAINT,
23 EVEN THOUGH YOU HAD AN ATTORNEY IN YOUR CASE WHEN
24 YOU SUED RIVERSIDE?
25 A I DRAFTED AND DID THE FIRST CUT AT IT.
594
1 Q AND YOU DRAFTED YOUR OWN COMPLAINT WHEN YOU
2 SUED THE FDI?
3 A THAT'S TRUE.
4 Q AND UP UNTIL TWO WEEKS AND TWO DAYS AGO YOU
5 WERE REPRESENTING YOURSELF IN THIS ENTIRE CASE?
6 A OF NECESSITY.
7 Q AND MR. HENSON --
8 MR. ROSEN: YOUR HONOR, I MOVE TO STRIKE
9 THAT. THE ANSWER JUST CALLED FOR A YES OR NO.
10 THE COURT: ALL RIGHT.
11 THE WITNESS: YES.
12 THE COURT: SO I'LL STRIKE THE "OF
13 NECESSITY" LANGUAGE.
14 BY MR. ROSEN:
15 Q HOW MANY BRIEFS DID YOU SUBMIT TO THIS COURT
16 THAT YOU RESEARCHED AND WROTE, MR. HENSON?
17 A I DON'T KNOW.
18 Q A LOT?
19 A PROBABLY AROUND 15 OR 20.
20 Q HOW MANY APPEALS DID YOU TAKE TO THE NINTH
21 CIRCUIT COURT OF APPEALS FROM THE DECISIONS OF
22 JUDGE WHYTE IN THIS CASE, MR. HENSON?
23 A TWO.
24 Q YOU DIDN'T TAKE THREE?
25 A I DON'T BELIEVE SO.
595
1 Q AND YOU WROTE -- YOU RESEARCHED AND WROTE THE
2 BRIEFS IN THOSE AS WELL.
3 A INFORMAL BRIEFS, YES.
4 Q AND, IN FACT, MR. HENSON, YOU'VE ENCOURAGED
5 OTHERS, LIKE MR. ERLICH, TO GO TO THE LAW LIBRARY
6 AND WRITE YOUR OWN MOTIONS, IT'S EASY?
7 A I WOULDN'T SAY IT IS EASY, BUT IT CAN BE DONE.
8 Q AND YOU ENCOURAGED MR. ERLICH TO DO THAT?
9 A YES.
10 Q AND YOU'VE ENCOURAGED MR. WEAVER TO APPEAR IN
11 PRO SE IF HE GETS SUED FOR INFRINGEMENT, AND YOU
12 TOLD HIM IF HE GETS SUED TO CLAIM THAT NOTS 34 IS
13 AN INSTRUCTION MANUAL, YOU TOLD HIM THAT, RIGHT?
14 A IT SOUNDS RIGHT. I'M NOT SURE.
15 Q OKAY. IN ANY EVENT, MR. HENSON, I GUESS AT
16 THE TIME YOU READ JUDGE GESSELL'S DECISION, YOU
17 CERTAINLY HAD SOME EXPERIENCE IN READING LAW CASES
18 AND UNDERSTANDING THEM; RIGHT?
19 A TO A CERTAIN DEGREE.
20 MR. ROSEN: OKAY. YOUR HONOR, WE'RE
21 GOING TO ASK TO PUT UP CERTAIN SECTIONS OF EXHIBIT
22 142 WHICH IS JUDGE GESSELL'S DECISION.
23 THE COURT: ALL RIGHT.
24 MR. BERRY: I WOULD ASK THAT IT BE
25 ADMITTED, YOUR HONOR.
596
1 THE COURT: WELL, YOU'RE CERTAINLY
2 ENTITLED TO BRINGING OUT OTHER SECTIONS IF HE
3 BRINGS OUT SOME.
4 MR. ROSEN: LET'S START WITH -- YOU
5 REMEMBER IT TO BE A VERY LONG DECISION; RIGHT?
6 THE WITNESS: WELL, NOT ONLY IS IT A VERY
7 LONG DECISION, BUT JUDGE GESSELL'S DECISION --
8 BY MR. ROSEN:
9 Q MR. HENSON, DO YOU REMEMBER IT TO BE A LONG
10 DECISION, YES OR NO, SIR?
11 A YES.
12 Q OKAY. WE'RE GOING TO GO OVER SOME SECTIONS OF
13 IT FIRST. OKAY. PAGE 364. LET'S ZERO IN ON THE
14 TOP LINE FIRST. WE'VE JUST GOT THREE SECTIONS WE
15 WANT TO SHOW YOU.
16 "THE DEVICE, MEANING THE E-METER, MAY BE
17 USED OR SOLD OR DISTRIBUTED ONLY FOR USE
18 IN BONA FIDE RELIGIOUS COUNSELING. NO
19 USER, PURCHASER OR DISTRIBUTEE, OTHER
20 THAN THE FOUNDING CHURCH OF SCIENTOLOGY,
21 OR AN ORDAINED PRACTICING MINISTER OF THE
22 CHURCH."
23 DO YOU SEE THAT, MR. HENSON?
24 A YES, I SEE IT.
25 Q MR. HENSON, DOES THAT REFRESH YOUR MEMORY THAT
597
1 JUDGE GESSELL SAID THAT AS LONG AS E-METERS WERE
2 USED BY THE CHURCH OF SCIENTOLOGY AND ORDAINED
3 MINISTERS OF THE CHURCH, THAT THEY WERE OKAY?
4 A PARTICULARLY FOR BONA FIDE RELIGIOUS
5 COUNSELING, NOT --
6 Q BUT, MR. HENSON, DIDN'T YOU ALREADY ADMIT THAT
7 NOTS 34 IS A RELIGIOUS WORK?
8 A IT'S ALSO IN THE INSTRUCTION MANUAL.
9 Q MR. HENSON, YOU SAID IT IN THIS COURTROOM,
10 DIDN'T YOU, NOTS 34 IS A RELIGIOUS WORK?
11 A YES. SO WHAT?
12 Q OKAY. THANK YOU. LET'S MOVE ON THEN.
13 JUDGE GESSELL THEN SAID, THIS IS TALKING
14 "THE DEVICE SHOULD BEAR A PROMINENT
15 CLEARLY VISIBLE NOTICE WARNING THAT ANY
16 PERSON USING IT FOR AUDITING OR
17 COUNSELING, OF ANY KIND, IS FORBIDDEN BY
18 LAW TO REPRESENT THAT THERE IS ANY
19 MEDICAL OR SCIENTIFIC BASIS FOR BELIEVING
20 THAT OR ASSERTING THAT THE DEVICE IS
21 USEFUL IN ANY DIAGNOSIS."
22 A TREATMENT OR PREVENTIVE DISEASE.
23 MR. BERRY: I WOULD LIKE TO OBJECT. IT
24 IS BEING MISQUOTED BY COUNSEL.
25 THE COURT: I THINK, UNLESS HE MISREAD
598
1 IT -- DID HE MISREAD SOMETHING?
2 MR. BERRY: HE MISSTATED BECAUSE THESE
3 ARE ALL SNIPPETS.
4 THE COURT: WELL, YOU CAN ASK FOR OTHER
5 PORTIONS TO BE READ, AND THERE'S NO PROBLEM WITH
6 THAT.
7 MR. ROSEN: OKAY.
8 THE COURT: THE WHOLE DOCUMENT CAN COME
9 IN.
10 BY MR. ROSEN:
11 Q SO JUDGE GESSELL DID NOT PROHIBIT THE USE OF
12 THE E-METER. HE SAID IT SHOULD BE LABELED WITH A
13 WARNING JUST LIKE PHARMACEUTICALS SAY, "DON'T TAKE
14 ON AN EMPTY STOMACH"?
15 THE COURT: HE'S NOT ASKING.
16 BY MR. ROSEN:
17 Q SO IT SHOULD BE LABELED?
18 A THAT'S RIGHT.
19 Q AND ON MARCH 30TH, 1996, AS OF THAT DATE YOU
20 HAD NEVER EVEN SEEN AN E-METER; IS THAT RIGHT?
21 A NO. ACTUALLY, I HAVE SEEN ONE.
22 Q MR. HENSON, DID YOU SEE ONE USED BY THE CHURCH
23 OF SCIENTOLOGY WHICH DID NOT HAVE A LABEL ON IT?
24 A UM, I ACTUALLY DON'T REMEMBER WHETHER IT HAD A
25 LABEL ON IT OR NOT. THEY'RE ON THE BOTTOM USUALLY.
599
1 Q BUT YOU WOULD AGREE WITH ME THAT IF AT THE
2 CHURCH OF SCIENTOLOGY WHICH WERE USING AN E-METER
3 THAT HAD A LABEL OF THIS KIND, THAT IS PERFECTLY
4 CONSISTENT WITH JUDGE GESSELL'S ORDER; RIGHT?
5 A RIGHT, AS LONG AS THEY'RE NOT MAKING CLAIMS.
6 Q THE USE OF THE E-METER, THAT USE IS PERMITTED
7 ONLY AS PART OF RELIGIOUS ACTIVITY. THE JUDGE SAID
8 THAT WAS OKAY; RIGHT? YES OR NO, MR. HENSON?
9 THE COURT: WHAT WAS YOUR UNDERSTANDING
10 AT THE TIME WHETHER YOU FELT THAT WAS ALL RIGHT?
11 DID YOU THINK THAT JUDGE GESSELL'S ORDER SAID THAT
12 THAT WAS ALL RIGHT AT THE TIME YOU POSTED IT?
13 THE WITNESS: I'M NOT EXACTLY CERTAIN
14 WHAT EXACTLY WHAT I SHOULD ANSWER ON THIS.
15 THE COURT: DO YOU UNDERSTAND THE
16 QUESTION? I'LL HAVE HIM REPHRASE IT IF YOU DON'T.
17 THE WITNESS: CAN YOU REPHRASE THE
18 QUESTION. I'VE GOT NOTHING WRONG WITH WHAT
19 GESSELL SAID, I'M JUST NOT SURE WHAT YOU'RE
20 GETTING.
21 BY MR. ROSEN:
22 Q THE QUESTION IS DIDN'T YOU UNDERSTAND THAT
23 JUDGE GESSELL SAID THAT THE USE OF THE E-METER IS
24 PERFECTLY OKAY AS LONG AS IT'S PART OF RELIGIOUS
25 ACTIVITY? DIDN'T YOU UNDERSTAND THAT WHEN YOU READ
600
1 IT?
2 A YEAH, I'LL BUY THAT. THAT SEEMS REASONABLE.
3 Q WELL, MR. HENSON, THEN, I GUESS THE NEXT
4 QUESTION, AS OF MARCH 30TH, 1996, DID YOU HAVE
5 REASON TO BELIEVE, ANY BASIS AT ALL TO SUSPECT THAT
6 SCIENTOLOGY WAS USING AN E-METER IN A WAY NOT
7 APPROVED BY JUDGE GESSELL?
8 A YES.
9 Q WHAT IS THE BASIS OF THAT BELIEF, MR. HENSON?
10 A NOTS 34.
11 Q NOTS 34 TEACHES THE USE OF THE E-METER IN
12 CONNECTION WITH A RELIGIOUS WORK; DOESN'T IT?
13 A IT ALSO --
14 Q YES OR NO, MR. HENSON?
15 A IN CONNECTION WITH RELIGIOUS WORK? YES.
16 Q LET ME ASK YOU A QUESTION, AFTER YOU READ
17 JUDGE GESSELL'S -- HE WAS A JUDGE IN THE FEDERAL
18 DISTRICT COURT; RIGHT?
19 A THAT'S CORRECT.
20 Q AND YOU KNOW THAT'S THE LOWEST COURT -- NO
21 DISRESPECT INTENDED, YOUR HONOR -- IT IS THE TRIAL
22 LEVEL COURT IN THE FEDERAL SYSTEM; RIGHT?
23 A THAT'S CORRECT.
24 (CHANGE IN REPORTERS.)
25
601
1 BY MR. ROSEN:
2 Q AND YOU KNOW THAT ABOVE THE TRIAL LEVEL THERE IS
3 THIS, THESE COURTS OF APPEALS, LIKE THE NINTH CIRCUIT HERE IN
4 CALIFORNIA; RIGHT?
5 A THAT'S CORRECT.
6 Q MR. HENSON, DID YOU EVER INQUIRE AS TO WHAT HAPPENED
7 WITH, WITH JUDGE GESELL'S ORDER IN THE UNITED STATES COURT OF
8 APPEALS FOR THE DISTRICT OF COLUMBIA?
9 A YES.
10 Q AND YOU SAW THE DECISION ISSUED BY THAT COURT IN
11 REVIEWING JUDGE GESELL'S ORDER?
12 A I THINK I READ THE SUMMARY OF IT.
13 Q AND YOU DID THAT BEFORE MARCH 30TH, 1996?
14 A I'M NOT SURE.
15 MR. ROSEN: OKAY. YOUR HONOR, I'M GOING TO OFFER
16 THIS, AND THIS IS EXHIBIT 143.
17 THE COURT: OKAY.
18 MR. BERRY: ABSOLUTELY NO OBJECTION, YOUR HONOR.
19 THE COURT: ALL RIGHT. SO -- AND WERE YOU OFFERING
20 JUDGE GESELL'S OPINION TOO?
21 MR. ROSEN: NO. I'M OFFERING THIS ONE. LET'S GO
22 TO --
23 THE COURT: I'LL ADMIT 143.
24 MR. BERRY: 142 SHOULD COME IN AS WELL.
25 THE COURT: DO YOU WANT 143 ADMITTED?
602
1 MR. BERRY: AND 142, YOUR HONOR.
2 THE COURT: I'M SORRY?
3 MR. BERRY: I WANT BOTH 142 AND 143.
4 THE COURT: I'LL ADMIT THEM BOTH. 142 AND 143 ARE
5 ADMITTED.
6 (EXHIBITS 142 AND 143 WERE ADMITTED
FOR IDENTIFICATION.)
7
8 MR. ROSEN: I'LL OFFER THIS PORTION, YOUR HONOR.
9 THIS IS WHAT THE D.C. CIRCUIT, FEDERAL COURT OF APPEALS SAID.
10 THEY MODIFIED JUDGE GESELL'S ORDER AND THEY SAID "THE MARSHAL
11 SHALL RELEASE THE E-METERS AND THE LITERATURE TO THE
12 CUSTODY OF THE FOUNDING CHURCH OF SCIENTOLOGY, THE
13 PURPOSES OF BRINGING THE DEVICES AND THE LITERATURE
14 INTO COMPLIANCE."
15 THEY RETURNED THEM, MR. HENSON; RIGHT?
16 A THAT'S CORRECT.
17 Q SO MR. HENSON, WHEN YOU SAY, AS YOU HAVE SAID IN
18 THIS COURTROOM, THAT YOU BELIEVED THAT SCIENTOLOGY WAS ENJOINED
19 FROM USING AN E-METER --
20 A NO.
21 Q -- YOU KNEW BETTER THAN THAT?
22 A NO. I NEVER MADE ANY STATEMENT LIKE THAT.
23 SCIENTOLOGY IS NOT ENJOINED FROM USING E-METERS.
24 Q OKAY. LET'S GO TO THE NEXT PAGE OF THE DECISION OF
25 THE COURT OF APPEALS, AND HERE THE COURT OF APPEALS SAYS
603
1 "E-METERS SHALL BE USED OR SOLD OR DISTRIBUTED ONLY
2 FOR USE IN BONE FIDE RELIGIOUS COUNSELING."
3 DO YOU SEE THAT?
4 A YES. NOT MEDICAL TREATMENT.
5 Q AND IT HAS A WARNING WHICH IS SUPPOSED TO APPEAR ON
6 THE E-METER; RIGHT?
7 A THAT'S TRUE. AND I'VE GOT NOTHING AT ALL WRONG
8 WITH, IN MY ESTIMATION -- I AGREE WITH WHAT'S ON THERE.
9 Q WELL, MR. HENSON, YOU BELIEVED THAT THE USE OF THE
10 E-METER IN CONNECTION WITH NOTS 34 IS NOT RELIGIOUS COUNSELING?
11 A NO.
12 Q IS THAT WHAT YOU BELIEVE?
13 A WELL, MORE CORRECTLY, IT IS RELIGIOUS COUNSELING,
14 PLUS CURING ILLNESS.
15 Q MR. HENSON, DO YOU BELIEVE THAT RELIGIOUS COUNSELING
16 IN THE CAUSE OF CURING ILLNESS IS SOMETHING WHICH IS ILLEGAL?
17 A SAY THAT AGAIN.
18 Q DO YOU BELIEVE THAT RELIGIOUS COUNSELING, IN
19 CONNECTION WITH, AS AN ADJUNCT, IS SOMETHING WHICH IS ILLEGAL?
20 A NO.
21 Q MR. HENSON, YOU'VE READ THE BIBLE, HAVEN'T YOU?
22 A SOME OF IT.
23 Q WELL, HAVE YOU EVER READ THE GOSPEL ACCORDING TO
24 MATTHEW?
25 MR. BERRY: OBJECTION, YOUR HONOR. I DON'T THINK I
604
1 WENT ANYWHERE NEAR THE BIBLE ON DIRECT.
2 THE COURT: IF THAT'S THE ONLY OBJECTION, I'LL
3 OVERRULE IT.
4 MR. BERRY: IT'S BEYOND THE SCOPE.
5 THE COURT: IT'S NOT BEYOND THE SCOPE.
6 GO AHEAD.
7 MR. ROSEN: PARAGRAPH 23 OF THE GOSPEL OF MATTHEW.
8 THE COURT: IF HE HASN'T READ IT, THEN THERE'S NO
9 REASON TO READ IT.
10 MR. ROSEN: MAY I READ IT TO ASK HIM WHETHER HE
11 THINKS THIS IS PRACTICING MEDICINE WITHOUT A LICENSE?
12 THE COURT: WELL, NO. I THINK IT'S GOT TO GO TO HIS
13 STATE OF MIND.
14 MR. ROSEN: OKAY.
15 Q DID YOU BELIEVE, AS OF MARCH 30TH, 1996, THAT
16 RELIGIOUS PRACTICES GOING TOWARDS HELPING TO CURE ILLNESSES WAS
17 AN ILLEGAL PRACTICE OF MEDICINE?
18 A I'M NOT SURE I PARSE THAT.
19 Q WELL, MR. HENSON, FROM YOUR STUDIES OF DIFFERENT
20 RELIGIONS WHILE YOU WERE IN COLLEGE WITH THE DRUID THING THAT
21 YOU DESCRIBED EARLIER, YOU'RE AWARE OF SEVENTH DAY ADVENTISTS,
22 AREN'T YOU?
23 A SLIGHTLY.
24 Q YOU'RE AWARE OF JEHOVAH'S WITNESSES?
25 A SLIGHTLY.
605
1 Q YOU'RE AWARE OF RELIGIONS THAT ABSOLUTELY PROHIBIT
2 CERTAIN MEDICAL TREATMENTS TO THEIR PARISHIONERS, INCLUDING
3 BLOOD TRANSFUSIONS; RIGHT?
4 A YES.
5 Q DO YOU THINK THEY'RE PRACTICING MEDICINE? HAVE YOU
6 EVER REPORTED THEM?
7 A THEY HAVE NEVER COME TO MY ATTENTION IN SUCH A WAY.
8 IF I KNEW, FOR EXAMPLE, THAT A CHILD OF A SEVENTH DAY ADVENTIST
9 WAS DYING FOR LACK OF MEDICAL CARE, I WOULD NO DOUBT REPORT IT.
10 Q MR. HENSON, DID YOU EVER HEAR OF PEOPLE WHO WERE
11 SICK MAKING A PILGRIMAGE TO LOURDES?
12 A WHAT DOES --
13 Q YES OR NO?
14 A YES, I'VE HEARD OF THAT.
15 Q AND DO YOU THINK THAT THE PROMOTION OF THE, THE
16 RELIGIOUS BELIEF AND THE SANCTITY OF THE WATERS AT LOURDES IS
17 THE PRACTICE OF MEDICINE, MR. HENSON?
18 A THE WATER AT LOURDES ARE NOT A DEVICE AS DEFINED BY
19 THE F.D.A.
20 Q ARE YOU AWARE THAT CATHOLICS USE A DEVICE CALLED
21 ROSARY TO PRAY?
22 A THEY'RE NOT A DEVICE WITHIN THE MEANING OF THE
23 F.D.A. REGULATIONS.
24 Q SO THAT'S NOT PRACTICING MEDICINE?
25 A NO.
606
1 Q OKAY. MR. HENSON, IF MY -- I TELL MY SON TO PUT ON
2 A JACKET IF IT'S COLD OUT SO HE DOESN'T CATCH A COLD, THAT'S NOT
3 PRACTICING MEDICINE, IS IT?
4 A A JACKET IS NOT A DEVICE WITHIN THE FRAMEWORK OF THE
5 F.D.A. REGULATIONS.
6 Q OKAY. YESTERDAY MR. HENSON, YOU ANALOGIZED NOTS 34
7 TO, QUOTE, EXORCISM AS IN CHRISTIAN TRADITION.
8 A YES.
9 Q DO YOU REMEMBER THAT?
10 A RIGHT.
11 Q SO YOU ARE AWARE THAT IN CHRISTIAN RELIGIONS, THERE
12 IS A RIGHT OF EXORCISM?
13 A WELL, ANYBODY WHO'S SEEN THE EXORCIST WOULD AGREE
14 WITH THAT.
15 Q I WAS CONFUSED, BECAUSE I ALWAYS THOUGHT THAT WAS
16 THE CATHOLIC RELIGION THAT BELIEVED IN EXORCISM. AM I WRONG OR
17 DO YOU DISAGREE?
18 A I'M SURE THERE ARE OTHER RELIGIONS WHICH BELIEVE IN
19 EXORCISM.
20 Q OTHER RELIGIOUS, OKAY.
21 MR. HENSON, YOU'RE AWARE THAT THE CATHOLIC CHURCH
22 ACTUALLY HAS PRIESTS WHO ARE, FOR LACK OF A BETTER WORD,
23 SPECIALISTS IN PERFORMING EXORCISMS?
24 A ACTUALLY, NO.
25 Q I THOUGHT YOU JUST SAID YOU SAW THE MOVIE, THE
607
1 EXORCIST. DIDN'T YOU SEE CATHOLIC PRIEST PERFORMING THE
2 EXORCISM?
3 A I DIDN'T KNOW THAT THEY HAD A SPECIALTY ON IT.
4 Q ARE THEY PRACTICING MEDICINE WITHOUT A LICENSE,
5 MR. HENSON?
6 A NO, BECAUSE THEY'RE NOT USING A DEVICE.
7 Q MR. HENSON, DO YOU KNOW WHAT DEVICES THEY USE IN
8 EXORCISMS? HAVE YOU EVER SEEN ONE?
9 A DOES IT HAVE BATTERIES?
10 THE COURT: LET'S -- I THINK WE'RE GETTING
11 ARGUMENTATIVE. LET'S MOVE ON. YOU'VE GOT TEN MINUTES LEFT.
12 BY MR. ROSEN:
13 Q MR. HENSON, YOU SAID YESTERDAY THAT YOU, YOU
14 INTERPRETED NOTS 34 AS MEANING, AS TELLING SCIENTOLOGISTS WHO
15 TAKE IT TO FOLLOW THIS TO THE EXCLUSION OF GETTING MEDICAL HELP.
16 DO YOU REMEMBER TESTIFYING TO THAT YESTERDAY?
17 A YES.
18 Q MR. HENSON, ARE YOU SAYING THAT YOU BELIEVED, ON
19 MARCH 30TH, 1996, THAT SCIENTOLOGISTS PRACTICE, YOU DON'T GO TO
20 A DOCTOR?
21 A SOME OF THEM.
22 Q IS THAT -- DID YOU UNDERSTAND THAT TO BE A PART OF
23 THE RELIGIOUS TENETS OF SCIENTOLOGY, THAT YOU CAN'T GO TO A
24 DOCTOR?
25 A NO. IT'S PART OF THE FINANCIAL.
608
1 Q MR. HENSON, HAD YOU BOTHERED TO ASK ANY
2 SCIENTOLOGIST, YOU WOULD HAVE LEARNED, WOULD YOU NOT, AS OF
3 MARCH 30TH, 1996, THAT SCIENTOLOGISTS GO TO DOCTORS AND DENTISTS
4 AND HOSPITALS JUST LIKE EVERYBODY ELSE; RIGHT?
5 A TOO LATE OFTEN.
6 MR. ROSEN: YOUR HONOR, I MOVE TO STRIKE THESE, THIS
7 COMMENTARY.
8 THE WITNESS: EXCUSE ME.
9 THE COURT: WELL, THE QUESTION IS, DID YOU
10 UNDERSTAND AT THE TIME YOU POSTED NOTS 34 THAT SCIENTOLOGISTS
11 WENT TO DOCTORS AND DENTISTS?
12 THE WITNESS: SOMETIMES.
13 BY MR. ROSEN:
14 Q MR. HENSON, HAD YOU EVER BOTHERED TO GO INTO A
15 CHURCH OF SCIENTOLOGY BEFORE MARCH 30TH, 1996?
16 A NO.
17 Q MR. HENSON, HAD YOU DONE THAT, DO YOU KNOW, DO YOU
18 UNDERSTAND NOW THAT YOU WOULD HAVE SEEN POSTED, IN CHURCHES OF
19 SCIENTOLOGY, A SIGN, IN EFFECT, "IF YOU'RE HERE FOR ILLNESS, GET
20 A MEDICAL EXAM"?
21 A CAN I EXPLAIN THAT A LITTLE BIT?
22 Q NO. ANSWER MY QUESTION, PLEASE, SIR.
23 A I DON'T KNOW.
24 Q LET ME SHOW IT TO YOU AND SEE IF IT REFRESHES YOUR
25 MEMORY AT ALL.
609
1 A I'VE NEVER BEEN IN ONE.
2 THE COURT: HE SAID HE'D NEVER BEEN IN. YOU'RE
3 TRYING TO OFFER EVIDENCE THROUGH HIM. HE'S NOT COMPETENT, BASED
4 ON WHAT HE SAID, TO INDICATE WHETHER SUCH A SIGN IS THERE OR
5 ISN'T, AND YOU'RE NOT CAPABLE OF TESTIFYING WHETHER SUCH A SIGN
6 IS THERE OR SUCH A SIGN ISN'T.
7 BY MR. ROSEN:
8 Q MR. HENSON, WITH ALL OF THE THOUSANDS OF POSTINGS
9 YOU SAW ABOUT SCIENTOLOGY ON ARS BEFORE MARCH 30TH, 1996, DID
10 YOU EVER SEE A POSTING OF DIANETIC REGISTRATION, A DOCUMENT
11 WRITTEN AND COPYRIGHTED BY MR. HUBBORD IN 1969?
12 A I AM NOT SURE.
13 Q WELL, LET ME SEE, IF I READ YOU A SENTENCE FROM IT
14 AND SEE IF --
15 THE COURT: WELL, DON'T READ IT. SHOW IT TO HIM AND
16 SEE IF IT REFRESHES HIS MEMORY.
17 MR. ROSEN: MAY I APPROACH, YOUR HONOR?
18 THE COURT: YES.
19 MR. ROSEN: IT'S EXHIBIT 145 (HANDING).
20 THE COURT: IF IT REFRESHES YOUR RECOLLECTION THAT
21 YOU SAW IT, FINE. IF IT DOESN'T, JUST SAY SO.
22 THE WITNESS: I DON'T MIND THIS BEING ADMITTED.
23 THE COURT: THAT'S NOT THE QUESTION. THE QUESTION
24 IS --
25 THE WITNESS: BUT YOU DON'T RECOGNIZE THIS ONE,
610
1 ALTHOUGH I DID COMMENT EXTENSIVELY ON LATER ONES.
2 BY MR. ROSEN:
3 Q ARE THE ONES YOU COMMENTED ON EXTENSIVELY, DO THEY
4 INCLUDE, IN WORDS OR SUBSTANCE, THE PORTION I HIGHLIGHTED ON THE
5 FIRST PAGE OF THAT EXHIBIT?
6 A I BELIEVE THERE'S SOMETHING WHICH IS EFFECTIVELY
7 EQUIVALENT TO THAT.
8 MR. BERRY: YOUR HONOR, IF THE --
9 MR. ROSEN: YOUR HONOR, I ASK --
10 MR. BERRY: IF COUNSEL IS GOING TO KEEP MOVING
11 THROUGH THIS DOCUMENT, I ASK THAT IT BE ADMITTED IN ITS
12 ENTIRETY.
13 THE COURT: DO YOU WANT IT ADMITTED?
14 MR. BERRY: OF COURSE, YOUR HONOR.
15 MR. ROSEN: I ASK THAT ONLY ONE PORTION OF IT BE
16 ADMITTED, THE PORTION OF IT THAT'S HIGHLIGHTED.
17 THE COURT: IF YOU WANT TO ADMIT A PORTION OF THE
18 DOCUMENT, THE OTHER SIDE IS ENTITLED TO HAVE THE ENTIRE DOCUMENT
19 IN.
20 MR. ROSEN: YOUR HONOR, MAY I JUST RESERVE ON THAT
21 FOR A MOMENT?
22 THE COURT: YES.
23 MR. BERRY: YOUR HONOR, THEN I ASK THAT THE MATTER
24 OF THE ENTIRE TESTIMONY BE STRICKEN.
25 THE COURT: WE DON'T KNOW WHAT THIS SAYS YET, OTHER
611
1 THAN HE ASKED HIM IF HE SAW SOMETHING LIKE THIS ON THE INTERNET,
2 AND HE SAID, AS I RECALL, HIS TESTIMONY WAS SOMETHING TO THE
3 EFFECT THAT HE DIDN'T SEE THIS, BUT I THINK I SAW SOMETHING THAT
4 SAID ESSENTIALLY THE SAME THING.
5 WAS THAT AN ACCURATE STATEMENT, MR. BERRY?
6 MR. BERRY: YES, YOUR HONOR.
7 BY MR. ROSEN:
8 Q MR. HENSON, WITHOUT REGARD TO WHICH DOCUMENT YOU
9 SAW, DID YOU, PRIOR TO MARCH 30TH, 1996, SEE ON THE INTERNET A
10 SCIENTOLOGY WORK WHICH SAID, IN EFFECT, IN WORDS OR SUBSTANCE,
11 "IF YOU'RE ILL, IF YOU'RE COMING TO SCIENTOLOGY TO DEAL WITH
12 YOUR ILLNESSES, GO GET A MEDICAL EXAMINATION." YES OR NO?
13 A NOT SURE.
14 Q NOT SURE. OKAY. MR. HENSON, YOU TESTIFIED
15 YESTERDAY ABOUT YOUR BELIEF THAT LAWS ARE NOT ABSOLUTE, BUT ARE
16 MADE TO BE BROKEN.
17 A I DON'T BELIEVE I TESTIFIED TO THAT EXACT WORDING.
18 Q OKAY. LAWS ARE NOT ABSOLUTE?
19 A LAWS ARE NOT ABSOLUTE, I WOULD AGREE WITH.
20 Q AND ONE EXAMPLE YOU GAVE IS IN SOME CASES MURDER IS
21 JUSTIFIED?
22 A VERY RARELY, YES.
23 Q BUT MR. HENSON, THE TIMES THAT MURDER IS JUSTIFIED,
24 LIKE SELF-DEFENSE, THOSE ARE WRITTEN RIGHT INTO THE LAW, AREN'T
25 THEY?
612
1 A NOT ALL OF THEM.
2 Q GIVE ME AN EXAMPLE OF WHERE MURDER IS JUSTIFIED
3 WHERE THAT, THE DEFENSE IS NOT IN THE LAW, MR. HENSON.
4 A THE FAMOUS LIFEBOAT SITUATIONS.
5 Q THE LAW OF THE SEA.
6 A I DON'T BELIEVE THAT THERE'S ACTUALLY A LAW WHICH --
7 I DON'T BELIEVE THAT'S PART OF THE LAW OF THE SEA. BECAUSE
8 PEOPLE HAVE BEEN PROSECUTED FOR THROWING SOMEONE OUT OF A
9 LIFEBOAT SO THAT THE REST OF THE PEOPLE COULD MANAGE TO LIVE.
10 Q MR. HENSON, YOU GAVE AN EXAMPLE OF RUNNING A RED
11 LIGHT WHEN THERE'S A SIREN IN BACK OF YOU. IN THAT CASE, THE
12 LAW REQUIRES YOU TO GET OUT OF THE WAY OF THAT SIREN, DOESN'T
13 IT?
14 A DEPENDS ON THE LOCATION.
15 Q MR. HENSON, DO YOU HAVE -- DID YOU HAVE ANY REASON
16 TO BELIEVE, AS OF MARCH 30TH, 1996, THAT YOUR PERSONAL BELIEF,
17 YOU, KEITH HENSON'S PERSONAL BELIEF, THAT NOTS 34 WAS SOMETHING
18 CRIMINAL OVERRODE THE FEDERAL COPYRIGHT ACT?
19 A I SAID ESSENTIALLY THAT IN THE LETTER.
20 Q AND MR. HENSON, YOU BELIEVED THAT WHEN YOU DID IT;
21 RIGHT?
22 A I BELIEVED IT WHEN I DID IT.
23 Q DO YOU BELIEVE IT TODAY?
24 A YES.
25 Q YOU THINK -- SO THEREFORE, MR. HENSON, IF TOMORROW
613
1 YOU SAW SOME OTHER POSTING, SOME OTHER WORK, UNPUBLISHED WORK,
2 BY RTC AND YOU THOUGHT IT WAS CRIMINAL, YOU'D GO AHEAD AND
3 INFRINGE THAT COPYRIGHT TOO, WOULDN'T YOU?
4 MR. BERRY: OBJECTION. THAT CALLS FOR SPECULATION.
5 AND IT'S BEYOND, BEYOND HIS STATE OF MIND AT THE TIME.
6 THE COURT: I'M GOING TO ALLOW THE QUESTION.
7 GO AHEAD.
8 THE WITNESS: THE QUESTION IS, IF I FOUND ANOTHER
9 CRIMINAL INSTRUCTION MANUAL?
10 BY MR. ROSEN:
11 Q ONE THAT YOU BELIEVED WAS CRIMINAL?
12 A ONE THAT I BELIEVED WAS CRIMINAL?
13 Q AND IT WAS COPYRIGHTED BY RTC, YOU'D VIOLATE THAT
14 COPYRIGHT ALSO TODAY, WOULDN'T YOU?
15 A PROBABLY NOT.
16 Q OKAY.
17 A THIS IS MORE TROUBLE THAT'S IT'S WORTH.
18 Q MR. HENSON, YESTERDAY YOU SAID YOU WERE, QUOTE,
19 "SURPRISED," CLOSED QUOTE, TO GET THE CEASE AND DESIST LETTER
20 FROM MS. KOBRIN. DO YOU REMEMBER SAYING THAT IN RESPONSE TO A
21 QUESTION FROM YOUR COUNSEL?
22 A I THINK SO.
23 Q MR. HENSON, YOU WEREN'T SURPRISED, YOU WERE DESIRING
24 TO GET IT AND EXPECTING AND HOPING FOR IT SO YOU WOULD GET A
25 PROMOTION IN YOUR SP RATING; WEREN'T YOU?
614
1 A UM --
2 Q YES OR NO, MR. HENSON?
3 A I'M NOT SURE.
4 Q MR. HENSON, DO YOU REMEMBER SITTING WHERE YOU ARE
5 LAST WEEK AND WATCHING A VIDEOTAPE OF YOU SAYING, "AND BY THE
6 WAY, I WANT TO THANK, IF I HAVEN'T DONE SO YET, I WANT TO THANK
7 MRS. KOBRIN FOR SENDING ME THE LETTER."
8 DO YOU REMEMBER SEEING THAT LAST WEEK IN YOUR
9 DEPOSITION?
10 A YES.
11 Q IS IT STILL YOUR TESTIMONY THEN, MR. HENSON, THAT
12 YOU WERE, QUOTE, "SURPRISED" WHEN YOU GOT A CEASE AND DESIST
13 LETTER FROM MRS. KOBRIN?
14 A I'M NOT SURE THAT THAT STATES THE TESTIMONY AS I PUT
15 IT. I KNOW THE LAWSUIT SURE SURPRISED ME.
16 Q MR. HENSON, YESTERDAY YOU SAID NOTS 34 HAD BEEN
17 POSTED TO THE INTERNET 20 TIMES BEFORE YOU DID --
18 A THAT'S A GUESS, AN ESTIMATE.
19 Q AND YOU SAID NOBODY HAD BEEN SUED ON IT.
20 A THAT'S TRUE.
21 Q BEFORE YOU POSTED.
22 A ACTUALLY --
23 Q BEFORE YOU POSTED IT, MR. ERLICH POSTED IT.
24 THE COURT: I'M SORRY. I DON'T THINK HE FINISHED
25 HIS ANSWER.
615
1 MR. ROSEN: I'M SORRY. I DIDN'T HEAR.
2 THE WITNESS: OF THE 20 TIMES IT WAS POSTED BEFORE,
3 THIS WOULD BE BEFORE --
4 THE COURT: MARCH 30TH?
5 THE WITNESS: -- MARCH 30TH, I DON'T BELIEVE ANYBODY
6 HAD BEEN SUCCESSFULLY SUED ON IT.
7 BY MR. ROSEN:
8 Q MR. HENSON --
9 A BUT YOU'RE RIGHT, YOU'RE CORRECT, I WAS WRONG IN
10 THAT MR. ERLICH HAD INDEED BEEN SUED ABOUT IT. ALTHOUGH AT THE
11 TIME I HAD FORGOTTEN THAT NOTS 34 WAS ONE OF THE THINGS THAT HE
12 WAS ACCUSED OF POSTING.
13 Q MR. HENSON, MR. ERLICH WAS SUED ON IT ONE YEAR
14 EARLIER THAN YOU POSTED, IN FEBRUARY OF 1995; RIGHT?
15 A THE --
16 Q YES OR NO, SIR?
17 A YES.
18 Q AND MR. HENSON, YOU TESTIFIED YOU WERE IN THE
19 COURTROOM AT THE END OF THE ERLICH HEARING.
20 A YES.
21 Q AND YOU POSTED THE DOCUMENTS, YOU POSTED TO THE ARS
22 THE LISTS OF WHAT MR. ERLICH HAD POSTED, INCLUDING NOTS 34,
23 DIDN'T YOU?
24 A THAT'S -- THAT'S TRUE.
25 Q AND MR. HENSON, AS FAR AS ANYBODY ELSE OF THESE 20
616
1 PEOPLE WHO POSTED, YOU SAID POSTED NOTS 34 BEFORE YOU DID --
2 A I DIDN'T SAY 20 PEOPLE.
3 Q 20 TIMES.
4 A I SAID IT HAD BEEN POSTED 20 TIMES.
5 Q MR. HENSON, YOU DON'T HAVE ANY PROOF OF THAT, YOU
6 HAVE NOT OFFERED A SINGLE --
7 THE COURT: WELL, YOU'RE ARGUING NOW. YOU CAN ASK
8 HIM WHAT EVIDENCE HE HAS OF THAT.
9 MR. ROSEN: I'LL WITHDRAW THE QUESTION, YOUR HONOR.
10 THE COURT: ALL RIGHT. YOU NEED TO WIND UP, TOO.
11 MR. ROSEN: YEAH. YOUR HONOR -- EXCUSE ME.
12 Q MR. HENSON, WHEN YOU TESTIFIED THAT NOTS 34 HAD BEEN
13 POSTED 20 TIMES BEFORE YOU DID, WERE YOU BASING THAT UPON YOUR
14 RECOLLECTIONS?
15 A YES.
16 MR. ROSEN: IF I JUST MAY HAVE A MOMENT, YOUR HONOR?
17 THE COURT: ALL RIGHT.
18 (PAUSE IN PROCEEDINGS.)
19 MR. ROSEN: THANK YOU, YOUR HONOR.
20 THE COURT: OKAY. MR. BERRY, YOU HAVE A FEW MINUTES
21 LEFT.
22 MR. BERRY: I HAVE HOW MANY MINUTES LEFT, YOUR
23 HONOR? I THINK I HAVE 20, DON'T I, 25?
24 THE COURT: THAT SOUNDS RIGHT.
25 MR. BERRY: YEAH. BEFORE -- BEFORE THE CLOCK
617
1 STARTS, YOUR HONOR, IS EXHIBIT 145 COMING IN OR NOT?
2 MR. ROSEN: YOUR HONOR, I DIDN'T OFFER IT BECAUSE
3 THE WITNESS IDENTIFIED IT.
4 THE COURT: 145 HAS NOT BEEN AUTHENTICATED BY
5 ANYBODY, SO IT'S NOT ADMITTED.
6 MR. BERRY: OKAY. THANK YOU.
7 THE WITNESS: SHAME.
8 REDIRECT EXAMINATION BY MR. BERRY
9 Q. NOW, MR. HENSON, REFERRING TO DEFENDANT'S EXHIBIT A,
10 YOU TOLD MR. ROSEN THAT YOU WERE NOT A PARTY TO THE WARD SUIT.
11 A I WAS TOLD I WAS NOT A PARTY TO THE WARD SUIT.
12 Q SO WHY DID YOU WRITE TO JUDGE WHYTE IN CONNECTION
13 WITH EXHIBIT, DEFENDANT'S EXHIBIT A?
14 A I'M SORRY. I'M NOT ACTUALLY CERTAIN WHAT EXHIBIT A
15 IS.
16 Q EXHIBIT A --
17 THE COURT: IT'S THE POSTING.
18 BY MR. BERRY:
19 Q -- IS THE LETTER YOU POSTED AFTER YOU WROTE TO
20 JUDGE WHYTE EARLIER THAT MONTH. WHY DID YOU WRITE TO
21 JUDGE WHYTE?
22 A WELL, I FIGURED I HAD FOUND SOMETHING WHICH, TO ME,
23 LOOKED LIKE IT WAS A VIOLATION OF THE COURT ORDER, AND SO I
24 WROTE TO THE JUDGE IN THE NEAREST COURT THAT WAS CONCERNED WITH
25 THIS MATTER AT THE TIME, THINKING THAT THE JUDGE MIGHT WISH TO
618
1 TAKE THIS MATERIAL INTO CONSIDERATION IN THE WARD CASE.
2 Q AND REFERRING TO EXHIBIT A, WAS IT ANYTHING TO DO
3 WITH ALL PERSONS IN ACTIVE CONCERT?
4 A THAT WAS, IF I REMEMBER, PART OF THE WORDING OF THE
5 T.R.O., AND I WAS CURIOUS ABOUT GETTING IT CLARIFIED.
6 Q AND WHY WERE YOU CURIOUS ABOUT GETTING IT
7 CLARIFIED?
8 A BECAUSE IT HAD BEEN REPRESENTED, I THOUGHT, ON THE
9 NET AS APPLYING TO EVERYONE WHO READ ALT.RELIGION SCIENTOLOGY.
10 Q MR. ROSEN JUST ASKED YOU ABOUT YOUR PROMOTION
11 THROUGH THE RANKS OF SP STATUS.
12 A YES.
13 Q AT THE TIME YOU POSTED NOTS 34, WERE YOU AWARE THAT
14 SCIENTOLOGISTS HAD MILITARY RANKS?
15 MR. ROSEN: OBJECTION, YOUR HONOR. BEYOND THE SCOPE
16 OF CROSS.
17 THE COURT: YEAH, THAT WASN'T GONE INTO AT ALL. I
18 THINK YOU COVERED WHAT YOU WANTED TO BEFORE, SO I'LL SUSTAIN THE
19 OBJECTION.
20 BY MR. BERRY:
21 Q MR. ROSEN ASKED YOU WHETHER DEAN ROSCO POUND HAD
22 SAID THAT YOU CAN VIOLATE A COPYRIGHT. CORRECT?
23 A YES, HE ASKED ME THAT.
24 Q NOW, DID YOU BELIEVE THAT DEAN ROSCO POUND'S
25 WRITINGS PRECLUDED YOUR FIRST AMENDMENT RIGHTS WITH RESPECT TO
619
1 COPYRIGHTS?
2 A NO. ROSCO POUND'S COMMENT ON THIS SEEMED TO ME TO
3 BE VERY GENERAL, TO APPLY VERY BROADLY ACROSS ALL OF THE LAW.
4 Q AND IN CONNECTION WITH CYBER PUNKS, WAS THERE A
5 REASON WHY YOU CHOSE NOT TO POST NOTS 34 BEHIND A MASK?
6 A YES, THERE WAS.
7 Q AND WHAT WAS THAT REASON?
8 A POSTING IT BEHIND A MASK HAD GENERATED VERY LITTLE
9 PUBLIC ATTENTION ON THIS PARTICULAR MATTER.
10 IN MY ESTIMATION, THERE WAS A DEFINITE NEED TO MAKE
11 A PUBLIC STATEMENT AND TO BRING THIS OUT IN THE PUBLIC IN THE
12 INTEREST, PUBLIC INTEREST REALLY.
13 BY THIS TIME, I WAS AWARE OF, FOR EXAMPLE, A NUMBER
14 OF DEATHS THAT HAD OCCURRED.
15 Q AND YOU TOLD MR. ROSEN THAT YOU HAD EVEN PHONED THE
16 F.D.A. ABOUT IT; CORRECT?
17 A I WOULD HAVE TO ACTUALLY LOOK CAREFULLY, BUT I
18 BELIEVE THAT I TALKED TO THE F.D.A. BEFORE, SOMEWHAT EARLIER
19 THAT YEAR ABOUT IT, BUT NOT TERRIBLY MUCH EARLIER.
20 IN FACT, IT MIGHT HAVE BEEN RIGHT AROUND THE TIME
21 THAT I, THAT I WROTE THE LETTER TO JUDGE WHYTE. IT WAS VERY
22 DIFFICULT TO GET IN CONTACT WITH THE PROPER PERSON AT THE
23 F.D.A., AND WHEN I DID, THE PERSON ALMOST IMMEDIATELY RETIRED.
24 Q IS NOTS 34 AND THE E-METER, TO YOUR KNOWLEDGE AT THE
25 TIME OF, THAT YOU POSTED IT, ONLY USED BY CHURCH OF
620
1 SCIENTOLOGISTS MEMBERS?
2 A NO.
3 Q AND WHAT WAS YOUR KNOWLEDGE IN THAT REGARD ON MARCH
4 30, 1996?
5 A THERE ARE A NUMBER OF OLD LINE DIANETISTS WHO WERE
6 UNCONNECTED WITH SCIENTOLOGY WHO USE E-METERS. AND THERE ARE
7 ALSO A LARGE NUMBER, PERHAPS LARGER THAN THE CHURCH OF
8 SCIENTOLOGY, THAT ARE IN WHAT ARE CALLED THE FREE ZONE.
9 MR. ROSEN: YOUR HONOR, I MOVE TO STRIKE THIS.
10 THE COURT: THIS IS OFFERED SOLELY FOR HIS STATE OF
11 MIND AT THE TIME OF POSTING. WHETHER OR NOT THAT'S TRUE OR NOT,
12 THERE'S NO FOUNDATION FOR HIS SAYING, BEING ABLE TO TESTIFY AS
13 TO WHETHER THAT'S TRUE OR NOT.
14 MR. ROSEN: IT'S ALSO BEYOND THE SCOPE OF CROSS,
15 YOUR HONOR, ABOUT FREE ZONES.
16 THE COURT: WELL, I'M NOT SURE ABOUT THAT.
17 BY MR. BERRY:
18 Q AND WHAT IS THE FREE ZONE?
19 A IT'S SCIENTOLOGISTS THAT HAVE LEFT SCIENTOLOGY AND
20 TRY TO PRACTICE AUDITING AND OTHER KINDS OF ACTIVITIES OUTSIDE
21 OF SCIENTOLOGY.
22 THE COURT: I THINK WE ARE GETTING A LITTLE BIT
23 BEYOND THE SCOPE.
24 THE WITNESS: WELL, IT'S ACTUALLY RELATED TO FIRST
25 AMENDMENT.
621
1 MR. ROSEN: YOUR HONOR --
2 THE COURT: PLEASE, MR. HENSON. WAIT FOR A
3 QUESTION.
4 BY MR. BERRY:
5 Q DID YOU KNOW, ON MARCH 30, 1996, THAT FREE ZONERS
6 USING NOTS 34 WITH THE E-METER WERE ALSO ENGAGED IN THE UNLAWFUL
7 PRACTICE OF MEDICINE?
8 A IF THEY WERE USING IT AS NOTS 34 SEEMS TO INDICATE,
9 TO CURE ILLNESS, THE ANSWER WOULD BE DEFINITELY YES.
10 Q NOW, DID YOU BELIEVE, ON MARCH 30, 1996, THAT NOTS
11 34 INVOLVED A RELIGIOUS PRACTICE, OR THE USE OF A DEVICE FOR THE
12 PRACTICE OF MEDICINE?
13 A BOTH.
14 Q AND CAN YOU EXPLAIN HOW IT INVOLVED BOTH?
15 A THE STATE TRIES TO GET, TRIES TO MESS WITH RELIGIOUS
16 PRACTICES AS LITTLE AS POSSIBLE.
17 MR. ROSEN: YOUR HONOR, I MOVE TO STRIKE THIS. THE
18 WITNESS ALREADY TESTIFIED HE'S MADE NO CONSULTATION WITH THE
19 STATE AND THE STATE LAW AS OF MARCH OF 96.
20 THE COURT: YEAH. I DON'T THINK MR. HENSON IS IN A
21 POSITION TO TELL US WHAT THE STATE LAW IS OR IS NOT.
22 MR. BERRY: HE WAS ABOUT, YOUR HONOR, TO GO TO THE
23 CONSTITUTION, IF I UNDERSTAND.
24 THE COURT: BUT HE'S NOT THE ONE TO ADVISE US AS TO
25 WHAT THE CONSTITUTION SAYS.
622
1 IF YOU WANT TO TALK ABOUT A REASONABLE BELIEF THAT
2 HE HAD AT THE TIME OF A POSTING, THAT'S A DIFFERENT QUESTION.
3 BY MR. BERRY:
4 Q WHAT WAS YOUR STATE OF MIND ON MARCH 30, 1996, ABOUT
5 THE ENTANGLEMENT OF CHURCH AND STATE?
6 MR. ROSEN: OBJECTION, YOUR HONOR.
7 THE COURT: I'M NOT SURE THAT I SEE HOW THIS IS,
8 WHAT YOU'RE TRYING TO GET AT.
9 MR. BERRY: WELL, YOUR HONOR, I'M TRYING TO ALLOW
10 HIM TO TESTIFY ABOUT -- I DON'T WANT TO TELL HIM, TO PUT WORDS
11 IN HIS MOUTH.
12 THE COURT: BUT YOU CAN ASK HIM, YOU CAN ASK HIM
13 WHAT, AS YOU HAVE SEVERAL TIMES, WHAT THE REASON WAS FOR HIS
14 POSTING OF NOTS 34 ON MARCH 30TH, 1996.
15 I HAVEN'T HEARD ANYTHING THAT SUGGESTS THAT ANY
16 REASON FOR POSTING HAD TO DO WITH THE INTERTWINE BETWEEN CHURCH
17 AND STATE.
18 BY MR. BERRY:
19 Q DID YOU BELIEVE, ON MARCH 30, 1996, THAT RELIGIOUS
20 FREEDOM PERMITTED THE UNLAWFUL PRACTICE OF MEDICINE?
21 MR. ROSEN: I OBJECT TO THAT, YOUR HONOR. NO
22 FOUNDATION FOR THAT.
23 THE COURT: I'LL LET HIM ANSWER IT.
24 THE WITNESS: THE ANSWER IS NO. THERE ARE LIMITS
25 ON, ON WHAT YOU CAN DO IN THE NAME OF RELIGION. IF IT GOES TOO
623
1 FAR, THE STATE STEPS IN.
2 (CHANGE IN REPORTERS.)
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
624
1 BY MR. BERRY:
2 Q AND WAS IT YOUR UNDERSTANDING THAT THE STATE
3 HAD STEPPED IN THROUGH JUDGE GESSELL AND THE
4 E-METER?
5 A PLUS THE FDA, YES.
6 Q AND DID YOU HAVE AN UNDERSTANDING AS TO
7 WHETHER OR NOT THE CHURCH OF SCIENTOLOGY WAS A
8 PARTY TO JUDGE GESSELL'S DECISION?
9 A TO THE BEST OF MY KNOWLEDGE, IT WAS.
10 Q AND WHAT WAS THAT BASED ON?
11 A WELL, THE DECISION ITSELF GOES TO THE FOUNDING
12 CHURCH OF SCIENTOLOGY AT WASHINGTON, D.C., ALTHOUGH
13 TO BE TRUTHFUL ABOUT IT, THE CORPORATE STRUCTURE OF
14 SCIENTOLOGY IS SO VIZENTINE --
15 MR. ROSEN: YOUR HONOR, I MOVE TO STRIKE
16 THIS, AND I WOULD LIKE AN ADMONITION TO THE WITNESS
17 TO STOP THIS.
18 THE COURT: PLEASE JUST ANSWER THE
19 QUESTION. IF THE ANSWER IS "I THINK SO BUT I'M NOT
20 SURE BECAUSE I DON'T UNDERSTAND THE TOTAL
21 STRUCTURE" THAT'S FINE BUT TO USE DESCRIPTIVE
22 WORDS.
23 THE WITNESS: AN EXCELLENT WAY TO PUT IT.
24 BY MR. BERRY:
25 Q AND BEFORE YOU POSTED NOTS 34 YOU HAD AT LEAST
626
1 GIVEN OTI THROUGH OTVII?
2 A YES.
3 Q AND WHAT HAD YOU LEARNED IN CONNECTION WITH
4 NOTS 34 IN THE USE OF THE E-METER FROM ANY OF THAT
5 INFORMATION?
6 MR. ROSEN: BEYOND THE SCOPE OF CROSS.
7 THE COURT: I THINK THIS WAS COVERED
8 BEFORE, WAS IT NOT?
9 MR. BERRY: COUNSEL ASKED HIM IF HE READ
10 IT.
11 THE COURT: DIDN'T YOU COVER IT BEFORE
12 WHEN WE AT OUR SESSION OUTSIDE OF THE PRESENCE OF
13 OTHERS?
14 MR. BERRY: I DON'T BELIEVE WE DID AS TO
15 OTVII. WE MENTIONED IT.
16 THE COURT: WHAT IS YOUR QUESTION AGAIN?
17 BY MR. BERRY:
18 Q WHAT HAD YOU LEARNED IN CONNECTION WITH NOTS
19 34 AND THE USE OF THE E-MAIL FROM THOSE READINGS?
20 A I'M AFRAID THAT TO FULLY ANSWER THAT WOULD GO
21 INTO STUFF THAT WOULD -- WOULD PERHAPS REQUIRE
22 ANOTHER PROBLEM OF CLEARING THE COURTROOM.
23 MR. ROSEN: YOUR HONOR, I MOVE TO STRIKE
24 THIS ANSWER.
25 THE COURT: NO. I THINK HE'S TRYING TO
627
1 AVOID DOING SOMETHING THAT WE DON'T WANT.
2 BY MR. BERRY:
3 Q SO WITHOUT GOING INTO THAT AREA, AND CAN YOU
4 GIVE ME AN ANSWER.
5 A YES. BY THE TIME YOU GET TO THE MATERIAL THAT
6 IS BEYOND OTIII, THE TERMS IN NOTS 34 BECOME FAIRLY
7 CLEAR TO YOU.
8 Q AND SO AS A RESULT OF THAT READING HAD YOU
9 CONCLUDED THAT NOTS 34 INVOLVED THE USE OF THE
10 E-METER IN THE UNLAWFUL PRACTICE OF MEDICINE?
11 MR. ROSEN: THIS IS A REITERATION OF THE
12 DIRECT.
13 THE COURT: YEAH, THEY DID GO INTO IT.
14 YOU CAN ANSWER THAT QUESTION. THE ANSWER IS YES?
15 THE WITNESS: YES.
16 THE COURT: ALL RIGHT. LET'S MOVE ONTO
17 SOMETHING.
18 BY MR. BERRY:
19 Q AND ON MARCH 30, 1996 WAS IT YOUR
20 UNDERSTANDING THAT CALIFORNIA LAW REGULATED THE
21 PRACTICE OF MEDICINE?
22 A YES.
23 Q AND WAS IT YOUR UNDERSTANDING ON MARCH 30,
24 1996, THAT RELIGIONS COULD NOT ENGAGE IN ANY
25 UNLICENSED PRACTICE OF MEDICINE?
628
1 MR. ROSEN: OBJECTION, THE WITNESS HAS
2 SAID HE NEVER LOOKED AT THE STATUTE.
3 THE COURT: HE CAN ANSWER WHAT HIS
4 UNDERSTANDING WAS AND WHETHER THERE IS A BASIS FOR
5 IT COULD BE ARGUED.
6 THE WITNESS: THAT WOULD BE MY
7 UNDERSTANDING OF IT.
8 BY MR. BERRY:
9 Q AND WAS IT ALSO YOUR UNDERSTANDING THAT JUDGE
10 GESSELL'S DECISION ENJOINING THE USE OF THE E-METER
11 IN CONNECTION WITH --
12 THE COURT: CAN'T YOU JUST ASK HIM WHAT
13 HIS UNDERSTANDING OF JUDGE GESSELL'S ORDER WAS AND
14 RATHER THAN SUGGESTING AN ANSWER AND THEN HAVING
15 HIM CONFIRM IT OR NOT CONFIRM IT?
16 BY MR. BERRY:
17 Q WHAT WAS YOUR UNDERSTANDING OF JUDGE GESSELL'S
18 ORDER IN CONNECTION WITH THE E-METER IN CONNECTION
19 WITH THE PRACTICE OF MEDICINE OR --
20 A MY UNDERSTANDING WAS THAT IT FORBID
21 SCIENTOLOGY AND ALL OF ITS BRANCHES FOR MAKING
22 CLAIMS OF CURING ILLNESS OR OTHER KINDS OF MEDICAL
23 EFFECTS BASED ON THE USE OF THE E-METER.
24 Q AND ON MARCH 30, 1996, WAS IT YOUR BELIEF THAT
25 THE E-METER WOULD STILL BE USED FOR A BONA FIDE
629
1 RELIGIOUS PRACTICE?
2 A ABSOLUTELY.
3 Q AND DID YOU HAVE ANY QUARREL WITH THAT ON
4 MARCH 30, 1996?
5 A NO.
6 Q AND WAS THERE ANY REASON THAT YOU DIDN'T
7 CONSULT AN ATTORNEY BEFORE YOU POSTED NOTS 34?
8 MR. ROSEN: OBJECTION, YOUR HONOR.
9 THE COURT: OVERRULED.
10 MR. ROSEN: YOUR HONOR, CAN WE APPROACH
11 ON THIS?
12 THE COURT: ALL RIGHT.
13 (SIDE-BAR CONFERENCE.)
14 THE WITNESS: IT'S A SIMPLE ANSWER.
15 MR. BERRY: YOU MAY ANSWER THE QUESTION.
16 THE WITNESS: ATTORNEYS ARE EXPENSIVE.
17 BY MR. BERRY:
18 Q AND YOU HAD ALSO READ A NUMBER OF SCIENTOLOGY
19 BOOKS?
20 MR. ROSEN: YOUR HONOR, MR. BERRY IS
21 TESTIFYING AGAIN.
22 THE COURT: OKAY.
23 MR. BERRY: YOU TOLD MR. ROSEN YOU HAD
24 READ AT LEAST FOUR BOOKS; CORRECT?
25 THE WITNESS: SKIMMED THEM.
630
1 BY MR. BERRY:
2 Q FROM YOUR READING OF THOSE FOUR BOOKS, HAD YOU
3 FORMED ANY BELIEF AS TO WHETHER E-METERS COULD BE
4 USED IN CONNECTION WITH CLAIMS OF CURING BODILY
5 ILLNESSES?
6 A THERE WERE -- YES, THERE WERE -- YES.
7 Q AND WHAT HAD YOU LEARNED IN THAT REGARD?
8 MR. ROSEN: BEYOND THE SCOPE OF
9 CROSS-EXAMINATION.
10 THE COURT: WHAT SPECIFICALLY HAD YOU
11 READ THAT DEALT WITH THE E-METER IN THESE FOUR
12 BOOKS/.
13 THE WITNESS: WELL, THE BOOKS DEAL WITH
14 AUDITING ALMOST INVARIABLY INVOLVES AN E-METER. SO
15 ANYTHING THAT YOU READ ABOUT AUDITING WINDS UP
16 INVOLVING E-METERS.
17 MR. ROSEN: I ASK THAT THE QUESTION BE
18 CONFINED TO NOTS 34, YOUR HONOR.
19 THE COURT: I THINK THERE WAS A QUESTION
20 ABOUT WHAT HE HAD READ BY YOU AS TO SCIENTOLOGY,
21 PUBLISHED SCIENTOLOGY MATERIALS. I THINK THAT'S
22 WHAT HE'S REFERRING TO; RIGHT?
23 THE WITNESS: RIGHT. ONE OF THEM IN
24 PARTICULAR, "SCIENCE OF SURVIVAL" THE FRONT PAGE ON
25 "SCIENCE OF SURVIVAL" EITHER REQUESTS OR REQUIRES,
631
1 I DON'T KNOW EXACTLY WHAT YOU DO, THAT THE BOOK BE
2 CATEGORIZED UNDER MEDICINE AND PSYCHIATRY. THAT'S
3 ON THE FRONT PAGE OF IT.
4 BY MR. BERRY:
5 Q AND ON MARCH 30, 1996 -- SORRY, WITHDRAWN.
6 MR. ROSEN ASKED YOU WHETHER YOU HAD BOTHERED TO GO
7 INTO A CHURCH OF SCIENTOLOGY; DO YOU REMEMBER THAT?
8 A YES.
9 Q AND ON MARCH 30, 1996, DID YOU HAVE ANY BELIEF
10 AS TO WHETHER THE CHURCH OF SCIENTOLOGY EVEN HAD
11 CHURCHES IN THE TRADITIONAL SENSE?
12 MR. ROSEN: YOUR HONOR, I OBJECT.
13 THE COURT: SUSTAINED. YOU CAN ASK HIM
14 WHETHER HE WENT INTO WHAT HE UNDERSTOOD WAS THE
15 CHURCH OF SCIENTOLOGY, AND I THINK HIS ANSWER WAS
16 NO.
17 BY MR. BERRY:
18 Q AND WHY HADN'T YOU, MR. HENSON?
19 A ESSENTIALLY FOR THE SAME REASON THAT I
20 WOULDN'T ENTER A OPIUM DEN.
21 Q AND WHY IS THAT?
22 MR. ROSEN: YOUR HONOR, I'M SORRY. I
23 DON'T THINK I HEARD THAT.
24 THE COURT: I'M GOING TO STRIKE THAT.
25 THAT'S INFLAMMATORY. YOU CAN ANSWER THE QUESTION
632
1 WITHOUT MAKING COMMENTS LIKE THAT.
2 THE WITNESS: I KNEW ENOUGH ABOUT
3 SCIENTOLOGY AT THAT POINT TO KNOW THAT I PERSONALLY
4 DIDN'T WANT ANYTHING TO DO WITH IT.
5 BY MR. BERRY:
6 Q NOW, MR. ROSEN ALSO ASKED YOU WHETHER YOU
7 BOTHERED TO CALL THE CHURCH OF SCIENTOLOGY AND ASK
8 THEM WHETHER NOTS 34 WAS THE UNLICENSED PRACTICE OF
9 MEDICINE; DO YOU RECALL THAT?
10 A YES.
11 Q AND WHY DIDN'T YOU?
12 A THE CHANCE OF ME GETTING SOMEBODY WHO HAD ANY
13 IDEA OF WHAT IT WAS WOULD BE PRACTICALLY ZERO.
14 Q AND ON MARCH 30, 1996, WHAT WAS YOUR
15 UNDERSTANDING WITH CONNECTION WITH SCIENTOLOGISTS
16 SEEKING MEDICAL ATTENTION WITH SERIOUS MEDICAL
17 CONDITIONS?
18 A SEVERAL OF THEM HAD DIED FROM --
19 MR. ROSEN: I MOVE TO STRIKE. THIS WAS
20 AN INSTRUCTION, AND IT'S A VIOLATION OF YOUR ORDER.
21 THE COURT: THERE'S NO BASIS FOR MR.
22 HENSON TO TESTIFY THAT WHAT WERE OR WERE NOT CAUSED
23 BY SCIENTOLOGY PRACTICES. SO I'M NOT GOING TO
24 ALLOW US TO GET INTO THAT.
25 MR. HENSON -- MR. BERRY, YOU'VE GOT TWO
633
1 MINUTES LEFT.
2 BY MR. BERRY:
3 Q YOU DID TESTIFY TO MR. ROSEN THAT SOMETIMES
4 THEY HAD GONE TO DOCTORS TOO LATE; CORRECT?
5 A CORRECT.
6 Q AND WHAT BELIEF -- WHAT WAS THE BASIS OF YOUR
7 BELIEF IN THAT REGARD ON MARCH 30, 1996?
8 MR. ROSEN: YOUR HONOR, I OBJECT. THAT
9 WAS NOT THE TESTIMONY. IN FACT, IT WAS A
10 GRATUITOUS ANSWER THAT WAS STRICKEN.
11 THE COURT: WE'RE GETTING FAR AFIELD INTO
12 AREAS, I THINK, THAT ARE NOT RELEVANT.
13 BY MR. BERRY:
14 Q AND WHEN YOU TOLD -- I'M SORRY. YOU ALSO TOLD
15 MR. ROSEN THAT IF YOU CAME ACROSS A SCIENTOLOGY
16 DOCUMENT INVOLVING PRACTICE, THAT CRIMINAL CONDUCT
17 IN THE FUTURE, YOU WOULD PROBABLY WOULDN'T POST IT;
18 DO YOU RECALL THAT?
19 A YES.
20 Q AND YOU SAID THAT YOU PROBABLY WOULDN'T
21 BECAUSE IT WAS TOO MUCH TROUBLE; DO YOU RECALL
22 THAT?
23 A YES.
24 Q AND WHAT DID YOU MEAN BY THAT?
25 A TWO YEARS OF A LAWSUIT, VAST EXPENSES,
634
1 MULTIPLE LAWSUITS.
2 MR. ROSEN: YOUR HONOR, I MOVE TO STRIKE
3 THIS, "MULTIPLE LAWSUITS."
4 THE COURT: YEAH, THERE'S NO EVIDENCE OF
5 ANYTHING OTHER THAN THAT LAWSUIT.
6 MR. BERRY: MR. ROSEN WENT INTO IT DURING
7 HIS CROSS-EXAMINATION.
8 MR. ROSEN: ABSOLUTELY NOT.
9 MR. BERRY: HE MENTIONED DIFFERENT --
10 THE COURT: NOT WITH MR. HENSON.
11 MR. BERRY: YES.
12 MR. ROSEN: NO. MR. HENSON'S LAWSUITS
13 AGAINST THE FBI, NOT WITH SCIENTOLOGY.
14 THE COURT: THE ONLY LAWSUIT THAT I'M
15 AWARE OF WITH THE MENTION OF MR. HENSON IS THIS ONE
16 THAT WE'RE INVOLVED IN.
17 THE WITNESS: YOU DID BRING UP MY SP6 --
18 BY MR. BERRY:
19 Q IN ANY EVENT, MR. HENSON, DO YOU FEEL -- IS IT
20 YOUR BELIEF AS YOU SIT HERE TODAY THAT YOUR
21 EXPERIENCE WITH THIS LAWSUIT HAS DETERRED YOU FROM
22 EVER POSTING SUCH MATERIALS AGAIN?
23 A AT LEAST I WOULDN'T DO IT OPENLY.
24 MR. BERRY: I HAVE NO FURTHER QUESTIONS.
25 THE COURT: ALL RIGHT.
635
1 MR. ROSEN: YOUR HONOR, I HAVE, I THINK,
2 THREE MINUTES LEFT OF REDIRECT, AND I WILL
3 NEEDLESSLY SIT DOWN.
4 THE COURT: THE EVIDENCE IS OVER, BOTH OF
5 YOU USED UP YOUR TIME. THE EVIDENCE IS CLOSED.
6 ALL RIGHT. LADIES AND GENTLEMEN, I WANT
7 TO SHARE THE INSTRUCTIONS THAT I'M GOING TO GIVE
8 WITH THE ATTORNEYS, AND AS SOON AS I'VE DONE THAT
9 WE'LL COME BACK AND HAVE ARGUMENTS. AND WE'LL --
10 I'M GOING TO GIVE THEM ABOUT A FIVE-MINUTE BREAK
11 BEFORE WE DO THAT. SO IT WILL BE A FEW MINUTES,
12 BUT WE'LL GET YOU AS SOON AS WE'RE READY. I THINK
13 YOU CAN SAFELY ASSUME THAT IT WILL BE NOT BEFORE
14 10:30. SO IF YOU WANT TO GO DOWNSTAIRS OR
15 SOMETHING, YOU'RE WELCOME TO DO SO, AND I'LL BE
16 BACK ABOUT THEN.
17 (WHEREUPON, A RECESS WAS TAKEN.)
18
19
20
21
22
23
24
25
636
1 THE COURT: OKAY. WITH RESPECT TO THE INSTRUCTIONS,
2 LET ME JUST -- IF YOU HAVEN'T HAD A CHANCE TO LOOK AT THEM,
3 NUMBER -- THE NEW ONE ON WILLFUL INSTRUCTION DEFINITION IS
4 ESSENTIALLY THE SAME AS INSTRUCTION, THE PREVIOUS INSTRUCTION
5 NUMBER 8.
6 I'M MISSING SOMETHING.
7 IT'S ESSENTIALLY THE SAME AS THE PREVIOUS NUMBER 8.
8 THE ADDITION THAT I MADE TO IT WAS THE SENTENCE THAT SAYS
9 COPYRIGHT LAW APPLIES TO UNAUTHORIZED POSTINGS ON THE INTERNET
10 IN THE SAME WAY THAT IT APPLIES TO OTHER UNAUTHORIZED COPYING OR
11 DISTRIBUTION. SO THAT'S THE ONLY CHANGE IN 8.
12 WITH RESPECT TO INSTRUCTION 9, THE NEW ONE, OR THE
13 OTHER, THE SECOND NEW ONE I HANDED OUT IS THE SAME AS NUMBER 9,
14 EXCEPT THAT IT ADDS A SENTENCE AT THE END OF THE FIRST
15 PARAGRAPH. THAT'S A NEW SENTENCE.
16 MR. BERRY: IS THIS THE FOOD AND DRUG ONE, YOUR
17 HONOR?
18 THE COURT: NO. THIS IS WILLFUL INFRINGEMENT.
19 MR. BERRY: GOING BACK TO WILLFULNESS, YOUR HONOR, I
20 WOULD HAVE ONE COMMENT.
21 THE COURT: OKAY. I JUST WANTED TO TELL YOU WHAT
22 THE CHANGES WERE, AND THEN THE LAST SENTENCE ON THE ISSUE OF
23 WILLFULNESS IS NEW.
24 SO I WANT TO DO THE SAME THING I DID LAST TIME, AND
25 THAT IS HAVE YOU TELL ME FIRST IF THERE'S ANY INSTRUCTION THAT I
637
1 PROPOSE TO GIVE TO WHICH YOU HAVE AN OBJECTION.
2 MR. ROSEN?
3 MR. ROSEN: YES, YOUR HONOR. I DON'T HAVE AN
4 OBJECTION, PER SE, TO -- I'M NOT SURE I GOT THE NUMBER RIGHT.
5 THE FIRST ONE WE GOT THIS MORNING WAS JURY INSTRUCTION BLANK,
6 WILLFUL INFRINGEMENT, HYPHEN, DEFINITION.
7 IS THAT THE ONE YOUR HONOR SAID WAS NUMBER 8?
8 THE COURT: THAT WOULD BE NUMBER 9. THAT'S THE SAME
9 AS THE PREVIOUS NUMBER 9 WITH THE EXCEPTION THAT I ADDED THE
10 LAST SENTENCE.
11 MR. ROSEN: THAT'S THE ONE WE GOT THIS MORNING
12 HEADED WILLFUL INFRINGEMENT, DASH, DEFINITION.
13 MY ONLY PROBLEM WITH THIS ONE, YOUR HONOR, IS AS WE
14 SAID EARLIER, WE HAD PROPOSED AN INSTRUCTION THAT MADE CLEAR
15 THAT ONCE WE MAKE A SHOWING OF WILLFUL INFRINGEMENT, THE BURDEN
16 SHIFTS TO THE DEFENDANT AND IT IS THE DEFENDANT'S BURDEN, THE
17 DEFENDANT BEARS THE BURDEN OF PROOF ON THE DEFENSE OF REASONABLY
18 BELIEVED IN GOOD FAITH.
19 I THINK CERTAIN OF THE ELEMENTS OF THAT ARE IN HERE,
20 BUT THERE IS NOWHERE IN THIS INSTRUCTION THAT I CAN SEE THAT
21 THERE IS AN ALLOCATION OF THE BURDEN OF PROOF.
22 MR. BERRY: I DON'T BELIEVE, YOUR HONOR, THAT
23 THERE'S ANY AUTHORITY CITED BY PLAINTIFF TO SUGGEST --
24 THE COURT: LET HIM FINISH, THEN I'LL GIVE YOU YOUR
25 TURN, MR. BERRY.
638
1 OTHER THAN THAT, IS THERE ANYTHING ELSE?
2 MR. ROSEN: NO. I THINK THAT CONCEPTUALLY IT IS,
3 IT'S NOT EXACTLY 13, WHAT WE PROPOSED.
4 THE COURT: RIGHT. I KNOW.
5 MR. ROSEN: BUT I MADE MY OBJECTION ON THAT ALREADY
6 YESTERDAY.
7 THE COURT: WELL, I WANT YOU TO TELL ME, BECAUSE I
8 DID MAKE SOME CHANGES. IF THERE'S SOME INSTRUCTION THAT YOU
9 WANT THAT I'M NOT GIVING, TELL ME.
10 BUT FIRST I WANT TO KNOW WHETHER YOU HAVE OBJECTION
11 TO WHAT I AM GIVING. IF YOU THINK SOMETHING NEEDS TO BE ADDED,
12 TELL ME THAT TOO.
13 IN OTHER WORDS, IF YOU HAVE OBJECTIONS TO THE
14 INSTRUCTIONS AS NOW PROPOSED, I WANT TO GET THEM ALL ON THE
15 RECORD SO IT'S CLEAN AS TO WHAT EACH SIDE IS OBJECTING TO.
16 MR. ROSEN: OKAY. THEN MY OBJECTION TO WILLFUL
17 INFRINGEMENT, HYPHEN, DEFINITION IS THAT IT DOES NOT INCLUDE THE
18 ALLOCATION AND THE DEFINITION OF THE BURDEN OF PROOF WHICH IS
19 SET FORTH IN OUR INSTRUCTION NUMBER 13.
20 THE COURT: OKAY.
21 MR. ROSEN: THE NEXT ONE WE GOT THIS MORNING, YOUR
22 HONOR, IS ENTITLED BASIS FOR COPYRIGHT, AND IS THIS GOING TO BE
23 NUMBER 10 THEN?
24 THE COURT: NO. THAT WAS NUMBER 8. THEY APPARENTLY
25 JUST WERE REVERSED IN ORDER.
639
1 NUMBER 8 IS THE SAME AS YESTERDAY'S NUMBER 8, WITH
2 THE ADDITION OF THE SENTENCE THAT I INDICATED; NAMELY, THAT
3 COPYRIGHT LAW APPLIES TO UNAUTHORIZED POSTINGS ON THE INTERNET
4 THE SAME WAY THAT IT APPLIES TO OTHER UNAUTHORIZED COPYING OR
5 DISTRIBUTION.
6 MR. ROSEN: OKAY. NO OBJECTION TO NUMBER 8.
7 THE COURT: OKAY.
8 MR. ROSEN: THERE'S ONE PART OF NUMBER 9 I SHOULD GO
9 BACK TO. I'M NOT SURE -- I RAISED IT WITH YOUR LAW CLERK, AND
10 IF YOU CAN GO TO THE MIDDLE OF NUMBER 9, LET'S SEE, 1, 2, 3, 4,
11 5, 6, 7, DID YOUR HONOR MEAN TO SAY HERE IN THE SENTENCE
12 STARTING ON THE 7TH LINE, "ONE WHO HAS BEEN NOTIFIED THAT HIS
13 CONDUCT CONSTITUTES COPYRIGHT INFRINGEMENT BUT WHO REASONABLY
14 BELIEVES THE CONTRARY DOES NOT ACT WILLFULLY. HOWEVER, ONE WHO
15 RECKLESSLY DISREGARDS" --
16 THE COURT: I THINK -- MY LAW CLERK PASSED ON A
17 COMMENT YOU MADE, AND IT'S WITH RESPECT TO THE PRIOR SENTENCE.
18 IT STARTS "OTHER FACTORS."
19 MR. ROSEN: OH, YES. AND WHETHER THE DEFENDANT
20 REASONABLY, IN GOOD FAITH, BELIEVED THE WORK WAS SUBJECT TO
21 COPYRIGHT.
22 I WASN'T SURE IF WHAT YOUR HONOR INTENDED THERE WAS,
23 SINCE THE FOCUS IS ON THE DEFENDANT, WHETHER THE DEFENDANT
24 REASONABLY BELIEVED AND IN GOOD FAITH BELIEVED THE WORK WAS NOT
25 SUBJECT TO COPYRIGHT.
640
1 THE COURT: HOW ABOUT IF WE JUST SAID WHETHER OR
2 NOT?
3 MR. ROSEN: THAT'S FINE.
4 THE COURT: OKAY.
5 MR. ROSEN: I THOUGHT IT WAS A LITTLE BIT CONFUSING.
6 THE COURT: I THINK THAT'S PROBABLY BETTER.
7 DID YOU GET THAT, MR. BERRY?
8 MR. BERRY: I WAS TRYING TO TRACK IT DOWN.
9 THE COURT: OKAY.
10 MR. BERRY: ON WILLFUL INFRINGEMENT, DEFINITION?
11 THE COURT: WILLFUL INFRINGEMENT, DEFINITION, WHERE
12 IT SAYS "OTHER FACTORS THAT MAY BE CONSIDERED INCLUDE" --
13 MR. ROSEN: FOURTH LINE.
14 MR. BERRY: AH.
15 THE COURT: MR. ROSEN WAS CONCERNED ABOUT WHETHER
16 THAT WAS CONFUSING, AND SO I SAID I'D STICK IN, FOLLOWING THE
17 WORD, "WHETHER OR NOT."
18 MR. BERRY: NO OBJECTION.
19 THE COURT: I THINK IT READS THE SAME NO MATTER
20 WHICH WAY WE DO IT, BUT I HAVE NO PROBLEM CLEARING IT UP IN THAT
21 WAY.
22 MR. ROSEN: AND THE THIRD ONE WE WERE GIVEN THIS
23 MORNING, YOUR HONOR, IS ENTITLED ISSUE OF WILLFULNESS. IS THAT
24 NUMBER 10?
25 THE COURT: THAT WILL BE NUMBER -- THAT WILL BE
641
1 NUMBER 10, YES.
2 MR. ROSEN: NO PROBLEM WITH THAT ONE, YOUR HONOR.
3 THE COURT: OKAY.
4 MR. ROSEN: DOES THAT COVER ALL -- I THINK THAT
5 COVERS ALL OF THE ONES WE WERE GIVEN TODAY.
6 THE COURT: THAT'S CORRECT.
7 NOW, ARE THERE ANY INSTRUCTIONS THAT YOU WISH THAT I
8 HAVE NOT INTENDED TO GIVE.
9 MR. ROSEN: YES, YOUR HONOR.
10 THE COURT: OKAY. SPECIFICALLY WHICH ONES?
11 MR. ROSEN: THEY ARE THE ONES THAT WE WENT OVER
12 YESTERDAY PRIMARILY, BUT I'LL BE HAPPY TO GO OVER THEM AGAIN.
13 2A ON WILLFUL INFRINGEMENT. THIS IS THE OSTERICH
14 CHARGE.
15 THE COURT: RIGHT.
16 MR. ROSEN: 5, NO FINANCIAL BENEFIT. I THINK THAT
17 IS PARTICULARLY APPROPRIATE HERE BECAUSE MR. BERRY SOLICITED
18 FROM MR. HENSON TESTIMONY THAT HE DIDN'T GET ANY MONEY OUT OF
19 THIS, POSTING NOTS 34.
20 6A, ADDITIONAL FACTORS IN DETERMINING THE AMOUNT OF
21 STATUTORY DAMAGES. AND I THINK THIS IS A CRITICAL ONE, YOUR
22 HONOR. INDEED, ONE OF THE QUOTES FROM THE CHARLIE CLUB CASE,
23 C-L-U-B, IS ALMOST PRECISELY THE EVIDENCE HERE THAT STATUTORY
24 DAMAGES IS DESIGNED TO, FOR A DEFENDANT WHO SMEARS IN THE FACE
25 OF THE COPYRIGHT OWNER OR HIDES HIS HEAD IN THE SAND THE
642
1 OSTERICH PORTION, SO I WOULD ASK YOUR HONOR TO GIVE 6A.
2 7, THIS IS MERELY, I THINK, THE CLARIFICATION THAT
3 NO, AS TO WHAT STATUTORY DAMAGES ARE REFLECTING, NOT REFLECTING
4 ANY ACTUAL DAMAGES AND AS AN ALTERNATIVE TO IT.
5 NUMBER 8, THIS IS REALLY SUBSUMED, I GUESS, IN
6 NUMBER 13. IT GOES TO WHAT IS, WHAT CAN BE OFFERED AS A
7 DEFENSE, AND THE BURDEN OF PROOF I GUESS.
8 NUMBER 10, POST HOC DEFENSE IS INSUFFICIENT.
9 NUMBER 13, WHICH IS WHAT WE WENT OVER ALREADY, YOUR
10 HONOR, SO I GUESS I DON'T NEED TO REPEAT MY REMARKS ABOUT THAT.
11 THE CRITICAL PART OF THAT IS THE ALLOCATION OF
12 BURDEN OF PROOF.
13 NUMBER 15 I THINK YOUR HONOR HAS GIVEN AS THE
14 INTERNET POSTINGS.
15 AS TO THE RELIANCE ON TALK SHOWS, WE WENT BACK AND
16 LOOKED AT THE TRANSCRIPT OF YESTERDAY, AND ALTHOUGH MR. BERRY
17 DID NOT PURSUE IT AFTER THE SIDEBAR AND YOUR HONOR CAUTIONED HIM
18 ABOUT IT, THE TRANSCRIPT SHOWS MR. HENSON GOT THAT ANSWER OUT
19 AND THE ANSWER WAS "I SAW THIS TAPE FROM THE SALLY JESSIE
20 RAPHAEL SHOW. SO I WOULD ASK THAT 15 BE GIVEN JUST IN THE FORM
21 OF THE TALK SHOW.
22 THE INTERNET POSTING PORTION OF IT YOUR HONOR HAS
23 ALREADY COVERED SEPARATELY.
24 16 I BELIEVE YOUR HONOR HAS ALREADY COVERED, SO WE
25 WOULD WITHDRAW THAT ONE. THIS IS THE INTERNET VERSUS THE
643
1 COPYRIGHT ACT.
2 AND YOUR HONOR, I SHOULD SAY -- I ASSUME YOU KNOW
3 THAT, AT SOME POINT IN TIME, ALTHOUGH WE WERE DISCUSSING THE
4 CHARGES NOW, AT SOME POINT IN TIME I ASSUME MR. BERRY IS GOING
5 TO BE ASKED IF HE RESTS, AND AT THAT TIME WE'RE GOING TO HAVE A
6 MOTION TO MAKE, WHICH MAY GO TO SOME OF THESE CHARGES AS WELL.
7 THE COURT: WELL, I -- I ASSUMED THAT MR. BERRY WAS
8 RESTING BECAUSE THE ONLY THING HE INDICATED HE HAD LEFT WAS THE
9 FURTHER EXAMINATION OF MR. HENSON, AND HE USED HIS TIME AND
10 COMPLETED HIS EXAM.
11 AM I MISTAKEN, MR. BERRY?
12 MR. BERRY: I THOUGHT I HAD RESTED, YOUR HONOR.
13 THE COURT: OKAY.
14 MR. ROSEN: WELL, IT WAS NOT ON THE RECORD AND
15 PERHAPS I'M JUST COMPULSIVE WHEN IT COMES TO PRIORITY AND THE
16 PROPRIETY ON THE RECORD.
17 IF MR. BERRY RESTS, THEN NUMBER ONE, I OFFER EXHIBIT
18 63 AND 74; AND NUMBER TWO, THE PLAINTIFF MOVES FOR A DIRECTED
19 VERDICT ON THE ISSUE OF WILLFULNESS.
20 AND I WILL NOT ADDRESS IT OTHER THAN ONE SENTENCE,
21 JUDGE, BECAUSE YOU'VE HEARD IT AND I'M NOT GOING TO TAKE UP YOUR
22 TIME.
23 THERE IS NOTHING ON THIS RECORD, NOTHING AT ALL, TO
24 INDICATE UPON WHICH A JURY COULD FIND THAT ANY BELIEF THAT
25 MR. HENSON HAD WAS OBJECTIVELY REASONABLE.
644
1 I CONCEDE THAT AS TO THE SUBJECTIVE REASONABLENESS
2 OR SUBJECTIVE BELIEF, IF YOU WILL, OF WHAT MR. HENSON BELIEVED
3 WHEN HE POSTED NOTS 34, THAT IS CLEARLY AN ISSUE AS TO WHICH
4 THAT'S FAIR GROUNDS FOR A JURY TO DECIDE. IT'S ESSENTIALLY
5 GOING TO BE CREDIBILITY AS TO WHAT WAS IN MR. HENSON'S MIND.
6 BUT ON THE SECOND ASPECT OF OBJECTIVITY, WHETHER A
7 REASONABLE PERSON COULD HAVE CONCLUDED, BASED ON WHAT HE SAID HE
8 KNEW, THAT NOTS 34 WAS A CRIMINAL PRACTICE OF LAW, AND MORE
9 IMPORTANTLY, THE OBJECTIVE STANDARD AS TO WHETHER HE HAD A
10 BASIS, A REASONABLE PERSON COULD HAVE CONCLUDED, HAVING ACCESS
11 TO A LAW LIBRARY AND BEING SUFFICIENT AS HE DID, WHETHER SUCH A
12 PERSON WOULD HAVE CONCLUDED THAT HIS BELIEFS TRUMPED THE
13 COPYRIGHT ACT, THERE IS NO BASIS IN THE RECORD BEFORE THIS JURY
14 UPON WHICH THEY COULD FIND THAT, AND WE ASK FOR A DIRECTED
15 VERDICT ON THAT.
16 (CHANGE IN REPORTERS.)
17
18
19
20
21
22
23
24
25
645
1 THE COURT: ALL RIGHT. WITH RESPECT TO
2 THAT MOTION, THAT MOTION IS SUBMITTED. I'M NOT
3 GOING TO RULE ON IT PRIOR TO THE JURY'S VERDICT.
4 MR. BERRY: DO YOU WANT TO BE HEARD ON
5 IT, YOUR HONOR?
6 THE COURT: NOT AT THE MOMENT. I WOULD
7 RATHER HAVE YOU ADDRESS THE INSTRUCTIONS.
8 OH, I'M SORRY. THE TWO EXHIBITS, MR.
9 ROSEN, ARE WHAT?
10 MR. ROSEN: 63 AND 74, YOUR HONOR.
11 THE COURT: WHICH ARE WHAT? 63 IS --
12 MR. ROSEN: CALIFORNIA STATE LAW SECTION
13 2603 EXEMPTING RELIGIONS FROM THE PRACTICE OF
14 MEDICINE LICENSING.
15 MR. BERRY: I WOULD OBJECT TO THAT UNLESS
16 THE ENTIRE CHAPTER COMES IN. IT'S OUT OF CONTEXT,
17 AND THERE ARE OTHER CHAPTERS THAT APPLY.
18 MR. ROSEN: NOT TO RELIGIONS.
19 MR. BERRY: RELIGIONS ARE NOT EXEMPT FROM
20 REGULATIONS PROHIBITING THE PRACTICE OF MEDICINE.
21 WITHOUT THE ENTIRE CHAPTER, IT'S MISLEADING.
22 THE COURT: I THINK IT WAS READ INTO
23 EVIDENCE AND COVERED IN THE INSTRUCTIONS.
24 AND WHAT IS THE OTHER ONE?
25 MR. ROSEN: 74.
646
1 THE COURT: THESE WERE WHAT?
2 MR. ROSEN: THESE WERE MR. HENSON'S
3 RESPONSE TO OUR DISCOVERY REQUEST OF APRIL 29TH,
4 '96.
5 THE COURT: ANY OBJECTION TO THAT?
6 MR. ROSEN: IT'S JUST THE PORTION THAT WE
7 READ IN.
8 MR. BERRY: WELL, THE WHOLE THING, YOUR
9 HONOR, I THINK SHOULD GO IN.
10 THE COURT: ALL RIGHT. WHAT YOU WANTED
11 TO OFFER WAS READ IN, IT'S IN EVIDENCE. I DON'T
12 THINK THAT THE SEPARATE DOCUMENT NEEDS TO GET IN,
13 BUT WHAT YOU READ IN IS IN EVIDENCE, BUT I'M NOT
14 GOING TO ADMIT THE DOCUMENT.
15 MR. BERRY: AND I TAKE IT WE'RE ALSO
16 PUTTING IN 142 AND 143?
17 THE COURT: 142 AND 143 WERE ADMITTED AT
18 THE TIME THAT MR. ROSEN ASKED FOR 143 AND YOU
19 DIDN'T HAVE AN OBJECTION AND YOU ASKED FOR 142, AND
20 I ADMITTED 142.
21 MR. BERRY: OKAY. NOW, ON INSTRUCTIONS.
22 THE COURT: OF THOSE THAT I INTEND TO
23 GIVE, WHAT DO YOU HAVE OBJECTION TO, IF ANY?
24 MR. BERRY: THE ISSUE OF WILLFULNESS,
25 YOUR HONOR, THE FINAL SENTENCE OF THE FIRST
647
1 PARAGRAPH THE WORDS "TO SUGGEST THE USE OF
2 TECHNIQUES OR SUGGEST THE USE OF TECHNIQUES WITH
3 DEVICES NOT ACCEPTED BY THOSE OUTSIDE OF THE
4 RELIGION," I WOULD SUBMIT, YOUR HONOR, THAT IS
5 CONTRARY TO THE FOUNDING CHURCH OF SCIENTOLOGY
6 DECISION WHERE THE RELIGION WAS ENJOINED FROM USING
7 SUCH DEVICES IN THE PRACTICE OF MEDICINE.
8 THE COURT: WHAT OTHER OBJECTIONS DO YOU
9 HAVE, IF ANY?
10 MR. BERRY: NONE, NONE, YOUR HONOR. I DO
11 HAVE OBJECTIONS TO EACH AND EVERY ONE OF MR.
12 ROSEN'S INSTRUCTIONS.
13 THE COURT: OKAY.
14 MR. BERRY: THE ONES GIVEN TO ME LAST
15 NIGHT, THIS MORNING, YESTERDAY, I DON'T KNOW IF I
16 NEED TO ADDRESS THOSE OR NOT.
17 THE COURT: NOT UNLESS YOU WANT TO PUT
18 SOMETHING ON THE RECORD. I'M NOT GOING TO GIVE
19 THEM.
20 MR. BERRY: OKAY. THEN I WON'T ADDRESS
21 THEM.
22 THE COURT: OKAY. JUST FOR
23 CLARIFICATION, I THINK THE BURDEN OF PROOF IS
24 ADEQUATELY SET FORTH IN THE INSTRUCTIONS. I THINK
25 THE OTHER ISSUES THAT MR. ROSEN HAS RAISED BY THE
648
1 INSTRUCTIONS HE OFFERED THE ISSUES ARE EITHER
2 ADEQUATELY COVERED BY THE INSTRUCTIONS THAT I
3 INTEND TO GIVE AND/OR CONTAIN LANGUAGE THAT I THINK
4 IS ARGUMENTATIVE AND NOT FAIRLY STATED -- OR FAIRLY
5 STATED MAY NOT BE THE RIGHT WORD BUT NEUTRALLY
6 ENOUGH STATED -- BUT I THINK THE INSTRUCTIONS THAT
7 I PROPOSE TO GIVE ADEQUATELY AND APPROPRIATELY
8 COULD HAVE THE ISSUES THAT THIS JURY NEEDS TO
9 DECIDE.
10 ALL RIGHT. HOW MUCH TIME DO YOU WANT
11 BEFORE YOU DO START YOUR ARGUMENTS? ARE YOU READY
12 TO GO?
13 MR. ROSEN: TEN MINUTES.
14 THE COURT: OKAY. WHY DON'T WE START AT
15 TEN MINUTES OF 11:00.
16 MR. ROSEN: WE'RE GOING TO GO STRAIGHT
17 THROUGH AND COMPLETE THEM AND THAT WOULD BRING US
18 TO THE LUNCH BREAK?
19 THE COURT: EXCUSE ME.
20 MR. ROSEN: IS IT THE INTENTION THEN THAT
21 WE GO STRAIGHT THROUGH WITH THE -- MY CLOSING, MR.
22 BERRY'S CLOSING, MY REBUTTAL CLOSING AND THEN YOU
23 WOULD BREAK FOR LUNCH?
24 THE COURT: NO, I WILL NOT BREAK BEFORE
25 LUNCH. I WILL INSTRUCT BEFORE LUNCH.
649
1 MR. ROSEN: YOU'RE GOING TO INSTRUCT
2 BEFORE LUNCH?
3 THE COURT: YEAH.
4 MR. ROSEN: AND THEN THE JURY WILL
5 RETIRE.
6 THE COURT: BECAUSE WE'LL START --
7 ARGUMENTS WILL TAKE AN HOUR AND A HALF IF WE START
8 IN TEN MINUTES. THAT MEANS WE WOULD FINISH
9 ARGUMENTS AT ABOUT OR 12:20 AND THE INSTRUCTIONS
10 WILL PROBABLY TAKE TEN MINUTES. I MAY TAKE A
11 STRETCH BREAK WHILE YOU'RE SWITCHING SIDES.
12 I HAVE A VERDICT FORM SOMEWHERE IN HERE
13 THAT I WANTED TO GET YOUR APPROVAL ON.
14 MR. ROSEN: IS THIS SOMETHING LIKE THE
15 ONE WE PROPOSED, YOUR HONOR?
16 THE COURT: IT JUST ASKED TWO QUESTIONS.
17 MR. ROSEN: WE PROPOSED ONE.
18 THE COURT: I KNOW. THERE IT IS.
19 MR. BERRY: WHAT DAMAGES, IF ANY?
20 THE COURT: THEY HAVE TO AWARD AT LEAST
21 $100 UNDER THE STATUTE, DON'T THEY, OR IS IT $200?
22 MR. ROSEN: IT'S 500.
23 MR. BERRY: IT'S 200.
24 MR. ROSEN: IT'S 500 UNLESS THE DEFENDANT
25 HAS --
650
1 THE COURT: RIGHT, BUT THE MOST IT COULD
2 THEORETICALLY COULD BE --
3 MR. BERRY: IF THERE'S NO WILLFULNESS
4 IT'S 200.
5 THE COURT: NO. IF THERE'S NO
6 WILLFULNESS THEN --
7 MR. ROSEN: $520,000.
8 THE COURT: WHATEVER IT SAYS, I THINK
9 IT'S 500 AND THEN THERE'S THE -- THE GOOD FAITH,
10 REASONABLE BELIEF ONE THAT CAN TAKE IT DOWN TO --
11 MR. ROSEN: AND INNOCENT INFRINGEMENT.
12 THE VERY FORM IS ACCEPTABLE FOR THE PLAINTIFF, YOUR
13 HONOR.
14 THE COURT: MR. BERRY?
15 MR. BERRY: AND FOR THE DEFENDANT.
16 THE COURT: OKAY. WE'LL SEE YOU AT ABOUT
17 TEN OF.
18 (WHEREUPON, A RECESS WAS TAKEN.)
19 (CHANGE IN REPORTERS.)
20
21
22
23
24
25
651
1 THE COURT: ALL RIGHT. MR. ROSEN, YOU MAY PROCEED
2 WITH YOUR ARGUMENT.
3 MR. ROSEN: THANK YOU, YOUR HONOR.
4 LADIES AND GENTLEMEN, YOU HAVE BEEN VERY PATIENT FOR
5 ABOUT A WEEK NOW IN LISTENING TO THE EVIDENCE. I GUESS THE GOOD
6 NEWS IS WE'RE INTO ABOUT THE 8TH INNING. I'M GOING TO CONFINE
7 MY REMARKS TO LESS THAN 45 MINUTES, AND I WILL, IF I CAN, I'LL
8 EVEN BE BRIEFER THAN THAT.
9 AT THIS POINT, WHICH IS CALLED CLOSING ARGUMENT, IN
10 THE MANY YEARS I'VE BEEN PRIVILEGED TO DO THIS, I USUALLY SPEND
11 SOME TIME REVIEWING AT LEAST SOME OF THE KEY EVIDENCE. I TAKE
12 THE ELMO BACK AND PUT UP SOME OF THE THINGS THAT I'VE SHOWN YOU
13 DURING THE COURSE OF THIS TRIAL, I RUN BACK SOME EXCERPTS FROM
14 THE VIDEOTAPE OF THE DEPOSITION YOU SAW LAST WEEK.
15 I'M NOT GOING TO DO THAT HERE, AND THE REASON I'M
16 NOT IS BECAUSE YOU'VE SEEN THIS, YOU'VE TAKEN NOTES, IT'S VERY
17 RECENT, THIS IS NOT A LONG TRIAL, AND I HAVE EVERY CONFIDENCE
18 THAT YOU DON'T NEED ME TO REPLAY IT, YOU DON'T ME NEED ME TO
19 REPLAY A TAPE. YOU WILL REMEMBER WHAT YOU SAW AND HEARD IN THIS
20 COURTROOM OVER THE LAST SIX OR SEVEN DAYS.
21 INSTEAD I JUST WANT TO HIT ON A COUPLE OF POINTS
22 THAT I THINK ARE CRITICAL TO YOUR UNDERSTANDING OF THIS CASE AND
23 YOUR ABILITY TO REACH A JUST VERDICT.
24 AT THE BEGINNING OF THIS CASE, THE JUDGE TOLD YOU,
25 AND I TOLD YOU, THIS IS NOT A CASE ABOUT RELIGION. THIS IS NOT
652
1 A CASE ABOUT WHETHER YOU DISAGREE OR AGREE WITH SCIENTOLOGY OR
2 ANY OF ITS RELIGIOUS PRECEPTS.
3 THIS IS A COPYRIGHT CASE. THE FACT THAT THE
4 COPYRIGHT WHICH MR. HENSON INFRINGED WAS OWNED BY RTC, THE FACT
5 THAT THE WORK IS CONSIDERED A RELIGIOUS WORK, AS MR. HENSON
6 CONCEDED, HAS NOTHING WHATSOEVER TO DO WITH THE ISSUE BEFORE YOU
7 AS TO WHETHER HE WILLFULLY INFRINGED.
8 NOW, I SAID THAT, AND THE JUDGE SAID THAT TO YOU AT
9 THE BEGINNING OF THIS CASE. I GUESS THE ONLY ONE WHO'S
10 DISAGREED WITH THAT IS MR. HENSON, BECAUSE FROM THE VERY
11 BEGINNING OF HIS ATTORNEY'S OPENING STATEMENT TO YOU, AND
12 THROUGHOUT THE ENTIRE TRIAL, EVERY SINGLE OPPORTUNITY MR. HENSON
13 AND HIS ATTORNEY HAD, HE TRIED TO GET IN STATEMENTS ABOUT
14 TAUNTING SCIENTOLOGY, MOCKING IT, ET CETERA.
15 YOU KNOW MANY TIMES THE JUDGE HAS SAID TO YOU, DO
16 NOT TAKE THESE STATEMENTS FOR THE TRUTH OF THAT. MR. HENSON HAS
17 A RIGHT TO TELL YOU WHAT HE BELIEVES, OR BELIEVED IN MARCH OF
18 1996. NONE OF THIS IS PROVEN. THERE IS NO EVIDENCE BEFORE YOU
19 ABOUT THIS. AND I WILL JUST REMIND YOU OF THAT INSTRUCTION THAT
20 JUDGE WHYTE GAVE MANY TIMES.
21 THIS WAS NOTHING MORE NOR LESS THAN A SCURRILOUS
22 ATTACK ON RELIGION IN THE FORM OF A MAN WHO SAYS, THIS IS WHAT I
23 BELIEVED. NO BASIS IN FACT TO BELIEVE IT, BUT THIS IS WHAT I
24 BELIEVED.
25 MR. BERRY: OBJECTION, YOUR HONOR, MISSTATES THE
653
1 EVIDENCE.
2 THE COURT: OVERRULED.
3 GO AHEAD.
4 MR. ROSEN: AND I WANT YOU TO BELIEVE THAT MY BELIEF
5 WAS REASONABLE. I WANT YOU TO BELIEVE THAT I HAD A BASIS TO
6 BELIEVE IT.
7 MR. HENSON STANDS BEFORE YOU HAVING ALREADY BEEN
8 FOUND TO HAVE BEEN AN INFRINGER. HE HAS TRIED TO DO, IN THIS
9 CASE, WHAT MANY DEFENDANTS DO IN TRIALS, AND THAT IS IF YOU
10 DON'T HAVE A DEFENSE, ATTACK THE VICTIM. ATTACK THE VICTIM.
11 TRY TO PUT THE VICTIM ON TRIAL, AND THAT'S WHAT MR. HENSON HAS
12 TRIED TO DO HERE.
13 YESTERDAY YOU HEARD OVER AND OVER AGAIN, AND TODAY,
14 MR. HENSON SITTING HERE AND TELLING YOU WHAT HE THOUGHT
15 SCIENTOLOGY WAS, WHAT HE THOUGHT NOTS 34 MEANT.
16 IF MR. HENSON TRULY BELIEVED THIS, WHERE IS THE
17 EVIDENCE THAT, UPON WHICH HE, HE FORMED THAT BELIEF? HE SAYS HE
18 READ THINGS ON THE ARS, HE LEARNED THINGS FROM OTHER PEOPLE.
19 NOT ONE BIT OF EVIDENCE HAS MR. HENSON OFFERED YOU
20 TO SUBSTANTIATE THAT BELIEF. MR. HENSON COULD SAY, OR ANYONE
21 CAN SAY, I BELIEVE IN THE TOOTH FAIRY. BUT WHAT EVIDENCE HAS
22 MR. HENSON SUBMITTED TO YOU TO SHOW YOU THAT THAT WAS A BELIEF
23 THAT HE HAD, NUMBER ONE, AND NUMBER TWO, WHETHER IT WAS
24 REASONABLE?
25 MR. HENSON'S TESTIMONY COMES FROM SOMEBODY WHO, BY
654
1 HIS OWN ADMISSION, HAS TAUNTED RELIGIONS GOING BACK TO HIS
2 COLLEGE DAYS. YOU REMEMBER -- I KNOW THAT YOU WILL REMEMBER THE
3 STORY ABOUT THE VARIOUS DRUID SECTS THAT HE, WHICH WERE TAUNTING
4 OF OTHER RELIGIONS.
5 HE TOLD YOU THE DIFFERENCE BETWEEN A RELIGION AND A
6 CULT IS HOW LONG IT'S BEEN AROUND. IF A RELIGION WAS AROUND A
7 LONG TIME, A PARTICULAR RELIGION, IT'S OKAY. IT'S A RELIGION.
8 IF IT'S NOT AROUND A LONG TIME, IT'S A CULT.
9 I GUESS IF MR. HENSON WERE AROUND 3,000 YEARS AGO,
10 HE WOULD HAVE CALLED JUDAISM A CULT.
11 AND IF HE WERE AROUND 2,000 YEARS AGO, HE WOULD HAVE
12 CALLED CHRISTIANITY A CULT.
13 BUT AGAIN, I'M GOING OFF THE SUBJECT. THIS IS NOT A
14 TRIAL ABOUT RELIGION. IT'S A COPYRIGHT CASE. AND IN FACT, IT'S
15 A VERY SIMPLE COPYRIGHT CASE, VERY SIMPLE.
16 THERE ARE TWO ISSUES FOR YOU TO DECIDE. ONE IS
17 MR. HENSON HAS ALREADY BEEN FOUND TO HAVE INFRINGED. THE FIRST
18 QUESTION IS WHETHER HE DID SO WILLFULLY, AND THE SECOND IS THE
19 AMOUNT OF DAMAGES TO BE AWARDED AGAINST HIM.
20 AS THE COURT WILL TELL YOU, THE LAW IS THAT AN
21 INFRINGEMENT IS WILLFUL IF THE DEFENDANT KNEW THE WORK HE COPIED
22 WAS COPYRIGHTED. IT WASN'T AN ACCIDENT, YOU KNEW IT WAS
23 COPYRIGHTED WHEN YOU POSTED IT, OR IF HE ACTED IN RECKLESS
24 DISREGARD.
25 HERE THE EVIDENCE IS NOT EVEN IN DISPUTE.
655
1 MR. HENSON KNEW NOTS 34 WAS COPYRIGHTED WHEN HE POSTED IT ON
2 MARCH 30TH. HE KNEW IT WHEN HE POSTED IT AGAIN ON MARCH 31.
3 YOU HEARD HIM SAY, IN THE VIDEOTAPED DEPOSITION, WHEN HE POSTED
4 IT, HE EXPECTED TO GET SUED.
5 YOU HEARD MR. HENSON ADMIT, HE KNEW THIS COURT HAD
6 ENJOINED MR. ERLICH AND MR. WARD FROM POSTING WORKS, INCLUDING
7 NOTS 34. ALL OF THIS MR. HENSON KNEW BEFORE HE POSTED OUR
8 UNPUBLISHED WORK ON THE 30TH AND THEN THE 31ST OF MARCH.
9 YOU SAW MRS. KOBRIN'S LETTER OF MARCH 30TH IN WHICH
10 SHE TOLD HIM, "CEASE AND DESIST, RTC OWNS THE COPYRIGHT ON NOTS
11 34," AND YOU SAW MR. HENSON'S RESPONSE. NUMBER ONE, FOLD IT AND
12 STICK IT; AND NUMBER TWO, TO GO OUT AND POST IT AGAIN THE VERY
13 NEXT DAY.
14 JUST YESTERDAY YOU HEARD MR. HENSON ADMIT THAT RTC'S
15 COPYRIGHT WAS VALID, AND IN HIS OWN WORDS, IT WAS HIGHLY
16 PROBABLE THAT HE INFRINGED. HIGHLY PROBABLE THAT HE INFRINGED.
17 THAT'S THE CASE FOR WILLFULNESS.
18 NOW WE COME TO MR. HENSON'S DEFENSE TO WILLFULNESS.
19 MR. HENSON, LAST WEEK, YOU HEARD HIM SAY THAT THE REASON FOR HIS
20 ACTIONS, AND YOU SAW IT ON THE VIDEOTAPE, WHY DID YOU DO WHAT
21 YOU DID? FUN, ENTERTAINMENT, RECREATION, AND MOST IMPORTANTLY,
22 STATUS.
23 HE WANTED STATUS. HE WANTED THOSE PROMOTIONS. I
24 THINK YOU GET THE SP 3 FOR CAUSING SCIENTOLOGY TO SEND YOU A
25 CEASE AND DESIST LETTER, AND BOY, IF YOU REALLY RILE THEM ENOUGH
656
1 AND THEY SUE YOU, THEN YOU'RE AN SP 5. SO THAT'S A GREAT STATUS
2 TO HAVE.
3 YOU SAW AND HEARD HIM TELL YOU THAT LAST WEEK.
4 YESTERDAY AND TODAY YOU HEAR ANOTHER STORY.
5 MR. HENSON, ACCORDING TO HIM, IS A HERO. HE IS A CHAMPION OF
6 THE FIRST AMENDMENT, HE'S AN ADVOCATE OF THE FIRST AMENDMENT
7 FREEDOM OF SPEECH.
8 AND TODAY HE TELLS YOU, FORGET ALL THAT STUFF ABOUT
9 ENTERTAINMENT AND RECREATION AND STATUS, I DID IT BECAUSE I HAD
10 A BELIEF THAT THIS WAS THE CRIMINAL PRACTICE OF MEDICINE.
11 SO I GUESS THE QUESTION, AND THE JUDGE IS GOING TO
12 INSTRUCT YOU ON CREDIBILITY, CREDIBILITY MEANS WHO DO YOU
13 BELIEVE.
14 ORDINARILY IN A TRIAL, YOU'VE GOT A CHOICE OF TWO
15 PEOPLE. ONE SAYS THE LIGHT WAS RED, THE OTHER SAYS THE LIGHT
16 WAS GREEN.
17 HERE YOU'VE GOT A CHOICE OF WHAT MR. HENSON SAID
18 YESTERDAY AND TODAY VERSUS WHAT HE SAID LAST WEEK AND WHAT HE
19 SAID IN HIS DEPOSITION IN MAY.
20 SO WHEN THE JUDGE INSTRUCTS YOU ON CREDIBILITY,
21 PLEASE PAY CAREFUL ATTENTION TO THAT, AS WELL AS ALL OF THE
22 JUDGE'S CHARGES, BECAUSE YOU WILL HAVE TO DECIDE, IS MR. HENSON
23 TELLING YOU THE TRUTH THIS WEEK, OR WAS HE TELLING YOU THE TRUTH
24 LAST WEEK AND IN MAY OF '96 WHEN HE WAS DEPOSED?
25 OKAY. NOW, MR. HENSON HAS THE BURDEN OF PROOF TO
657
1 OVERCOME WILLFULNESS, AND IN ORDER TO DO THAT, HE'S GOT TO SHOW
2 YOU FOUR THINGS, AND HE HAS TO PROVE EACH OF THESE FOUR THINGS
3 TO YOU. IT'S HIS BURDEN.
4 NOW, LET ME TELL YOU WHAT THEY ARE, BECAUSE THIS
5 DOES GET A LITTLE BIT COMPLICATED. FIRST OF ALL, AND THIS IS
6 CALLED THE SUBJECTIVE-OBJECTIVE TEST. FIRST MR. HENSON HAS TO
7 CONVINCE YOU THAT HE, IN HIS OWN MIND, BELIEVED THAT NOTS 34 WAS
8 CRIMINAL AT THE TIME HE POSTED IT.
9 NOW, YOU WILL JUDGE THAT BASED ON HIS OWN
10 CREDIBILITY, WHAT YOU'VE HEARD HIM TESTIFY TO. PEOPLE CAN
11 BELIEVE THINGS. I CAN BELIEVE IN THE EASTER BUNNY OR TOOTH
12 FAIRY. BUT THE FIRST THING HE HAS TO SHOW YOU IS THAT HE
13 HONESTLY BELIEVED IT. HE DIDN'T MAKE IT UP FOR THIS TRIAL, HE
14 HONESTLY BELIEVED IT. THAT'S CALLED SUBJECTIVE, WHAT'S IN HIS
15 MIND.
16 THE SECOND THING HE MUST PROVE TO YOU IS THAT IT WAS
17 REASONABLE TO BELIEVE IT, AND THAT'S THE KEY, BECAUSE
18 REASONABLENESS IS THE STANDARD THAT YOU, THE JURY, ARE THE
19 ULTIMATE JUDGE OF. AND THAT IS BECAUSE YOU SAY TO YOURSELF, IF
20 YOU WERE MR. HENSON AND KNOWING WHAT HE KNEW, AND NOT ONLY WHAT
21 HE KNEW, BUT WHAT HE COULD HAVE FOUND OUT, WHAT WAS REASONABLY
22 AVAILABLE TO HIM, LIKE ASKING A LAWYER, LOOKING UP A CASE,
23 READING A STATUTE, LIKE THE F.D.A. LAW, PUT ALL OF THAT
24 TOGETHER, AND THEN YOU WILL SAY TO YOURSELF, "WAS IT REASONABLE
25 FOR MR. HENSON TO BELIEVE WHAT HE DID ABOUT NOTS 34?"
658
1 AND THAT REALLY IS THE EASY PART OF THIS, BECAUSE
2 ONE COULD SAY, "I BELIEVE IN THE TOOTH FAIRY." BUT THE JURY
3 WILL SAY, "WHETHER YOU TRULY BELIEVED IN IT OR NOT, IT WAS NOT
4 REASONABLE FOR YOU TO DO THAT." THAT'S THE SECOND THING HE HAS
5 TO PROVE TO YOU.
6 THE THIRD THING HE HAS TO PROVE TO YOU IS IF HE
7 BELIEVED THAT NOTS 34 WAS CRIMINAL, HE NOW HAS TO CONVINCE YOU
8 THAT HE BELIEVED IN HIS OWN MIND THAT HE HAD THE RIGHT TO
9 OVERCOME COPYRIGHT LAW, THAT -- FORGET THAT THE UNITED STATES
10 CONSTITUTION AND THE FEDERAL COPYRIGHT LAW SAYS "HERE'S A
11 COPYRIGHT, YOU CAN'T INFRINGE IT," HE NOW HAS TO CONVINCE YOU OF
12 THE THIRD THING, WHICH IS THAT HE HAD A GOOD FAITH BELIEF IN HIS
13 OWN MIND THAT BECAUSE HE, HENSON, THOUGHT THIS WAS A CRIMINAL
14 INSTRUCTION MANUAL IN HIS OWN WORDS, THAT THAT SOMEHOW TOOK
15 PRECEDENT OVER THE COPYRIGHT LAW, AS WE SAY, AND I THINK IT'S
16 BEEN REFERRED TO, THAT IT TRUMPED THE COPYRIGHT LAW.
17 AND THE FOURTH THING HE HAS TO PROVE TO YOU IS THAT
18 THAT BELIEF WAS ALSO REASONABLE. THAT'S THE OBJECTIVE ONE,
19 KNOWING EVERYTHING MR. HENSON KNEW, WOULD THE AVERAGE PERSON,
20 LIKE YOU, LIKE THE MEMBERS OF THIS JURY, BELIEVE, OBJECTIVELY
21 BELIEVE, "YEAH, I COULD SEE THAT, THAT IT'S REASONABLE TO
22 BELIEVE THAT MR. HENSON'S OWN PERSONAL VIEW COULD TRUMP THE
23 COPYRIGHT LAW."
24 THAT'S WHAT HE HAS TO PROVE TO YOU, FOUR ELEMENTS.
25 TWO OF THEM ARE SUBJECTIVE, WHAT HE SAYS HE BELIEVED, TWO OF
659
1 THEM ARE OBJECTIVE, OBJECTIVE MEANING YOU WILL LOOK AT IT AND
2 YOU WILL SAY WOULD A REASONABLE PERSON DO THAT? WOULD A
3 REASONABLE PERSON BELIEVE THAT?
4 MR. HENSON HAS TO SHOW YOU ALL FOUR. IT'S HIS
5 BURDEN. IF YOU DISBELIEVE ANY ONE OF THEM, HIS DEFENSE IS
6 REJECTED.
7 IF, FOR EXAMPLE, THE FIRST INQUIRY, YOU DISBELIEVE
8 THAT HE TRULY BELIEVED THIS WAS A CRIMINAL INSTRUCTION MANUAL,
9 HE PERSONALLY, SUBJECTIVELY, IF YOU DISBELIEVE THAT, THE
10 DISCUSSION OF WILLFULNESS IS CONCLUDED. HE HAS TO MEET ALL FOUR
11 OF THESE.
12 WHAT HAS MR. HENSON SHOWN YOU ON THESE? WELL, HE'S
13 TOLD YOU A LOT OF THINGS THAT HE BELIEVED. HE'S TOLD YOU THAT
14 "I BELIEVED THEM BECAUSE I READ DIFFERENT THINGS. I READ
15 THOUSANDS OF POSTINGS ON THE ARS." HASN'T PRODUCED A SINGLE
16 THING TO BACK THAT UP. IF I WERE TO SAY TO YOU -- WITHDRAW
17 THAT.
18 IF A PERSON TESTIFYING SAYS TO YOU, "I BELIEVE THAT
19 X, AND THE REASON I BELIEVED IN IT IS BECAUSE I READ IT," YOU
20 HAVE A RIGHT TO SAY "HOW COME HE DIDN'T SHOW ME WHAT HE READ?
21 IF HE'S TELLING ME THE TRUTH, WHERE IS IT THAT HE READ THAT HE
22 BASES THAT DECISION ON?" NOT A SINGLE THING HAS BEEN PRESENTED
23 TO YOU.
24 MR. HENSON SAYS, AND THIS IS A CRITICAL PART OF HIS
25 BELIEF, AND YOU HEARD THE TESTIMONY THAT HE'S -- I'M NOT GOING
660
1 TO SAY HE'S A LAWYER, BUT HE'S CERTAINLY GOT AN AWFUL LOT OF
2 LEGAL SKILLS, ACCORDING TO HIS OWN TESTIMONY, ABOVE THOSE OF THE
3 AVERAGE PERSON, INCLUDING THE JURY, HE SAYS HE READ
4 JUDGE GESELL'S DECISION.
5 WE SHOWED YOU THE KEY PARTS, NOT ONLY OF THAT
6 DECISION, BUT THE COURT OF APPEALS' DECISION, AND YOU CAN ASK
7 YOURSELF, WOULD SOMEBODY READING THIS REALLY BELIEVE THAT THERE
8 WAS SOME SORT OF AN INJUNCTION, SOME SORT OF CRIMINALITY IN
9 TERMS OF THE CHURCH OF SCIENTOLOGY USING ITS E-METER IN THE
10 RELIGIOUS FASHION, IN THE PERFORMANCE OF RELIGIOUS SERVICES?
11 THAT IS NOT, I SUBMIT TO YOU, A REASONABLE BELIEF.
12 THE SECOND ISSUE YOU HAVE TO DECIDE IS DAMAGES.
13 NOW, I THINK, IF I REMEMBER CORRECTLY, I THINK THE JUDGE MIGHT
14 HAVE DISCUSSED THIS AT THE BEGINNING, BUT LET ME JUST GO OVER IT
15 QUICKLY. THE COPYRIGHT ACT SAYS THERE ARE TWO DIFFERENT KINDS
16 OF DAMAGES THAT A COPYRIGHT HOLDER CAN SEEK.
17 ONE IS ACTUAL DAMAGES, IF YOU CAN PROVE HOW MUCH
18 MONEY YOU LOST. THIS IS THE CASE OF SOMEBODY GOING OUT AND
19 PIRATING A VIDEOTAPE OF A POPULAR MOVIE OR A CD. AND IF YOU CAN
20 SHOW THAT THE DEFENDANT SOLD 1,000 COPIES OF THE TITANIC, YOU
21 KNOW, FOR $20 APIECE, THEN YOU CAN PROVE HOW MUCH YOU ACTUALLY
22 LOST, AND THAT'S CALLED ACTUAL DAMAGES.
23 RTC HAS NO ABILITY TO PROVE HOW MUCH MONEY THEY LOST
24 BY VIRTUE OF MR. HENSON'S CONDUCT, AND THEREFORE, RTC IS ONLY
25 ASKING FOR THE ALTERNATIVE THAT THE COPYRIGHT ACT ALLOWS, AND
661
1 THAT IS WHAT'S CALLED STATUTORY DAMAGES.
2 STATUTORY DAMAGES, SOMETIMES WE REFER TO THEM AS
3 STAT DAMAGES, AND THE LAW IS DESIGNED FOR EXACTLY THIS KIND OF
4 SITUATION WHERE THE PERSON HAS BEEN HURT, THEY'VE BEEN
5 INFRINGED, THEIR COPYRIGHT HAS BEEN INFRINGED, BUT THEY CAN'T
6 PROVE HOW MUCH.
7 WELL, THE LAW IS NOT GOING TO ALLOW SOMEBODY LIKE
8 MR. HENSON TO WALK AWAY SCOTT-FREE BECAUSE RTC CANNOT PROVE
9 ACTUAL DAMAGES, AND THAT'S THE REASON WHY THE STATUTE HAS THIS
10 PROVISION CALLED STATUTORY DAMAGES.
11 UNFORTUNATELY, I GUESS FOR US, THE LIMIT IN
12 STATUTORY DAMAGES, EVEN IF YOU FIND WILLFUL INFRINGEMENT, WHICH
13 I WOULD HOPE YOU DO, IS $100,000. AS MR. HENSON HAS HIMSELF
14 SAID, THAT DOES NOT EVEN APPROACH THE TIME AND EXPENSE THAT HE
15 HAS PUT US TO, AND HE GLOATED OVER, YOU KNOW, YOU SAW THE FAXES,
16 EXCUSE ME, THE POSTINGS ABOUT HOW "I SPEND A LITTLE BIT OF
17 MONEY, BOY, CAN I CAUSE THE CHURCH OF SCIENTOLOGY TO SPEND A
18 LOT."
19 AND BY THE WAY, I'M NOT EVEN TALKING ABOUT
20 ATTORNEY'S FEES. FORGET ATTORNEY'S FEES. I'M JUST TALKING
21 ABOUT THE TIME AND EXPENSE OF REVEREND MCSHANE, OF PEOPLE WHO
22 WORK FOR RTC IN DEALING WITH MR. HENSON.
23 UNFORTUNATELY, THOUGH, THE LAW IS WHAT IT IS, AND
24 YOU HAVE TO FOLLOW THE LAW AND WE FOLLOW THE LAW, AND THE LAW
25 SAYS, NO MATTER HOW EGREGIOUS THIS IS, THE MAXIMUM YOU CAN AWARD
662
1 IS $100,000.
2 IF THERE WAS ANY WAY OF MY ARGUING TO YOU THAT WE'RE
3 ENTITLED TO MORE UNDER THE LAW, I WOULD DO SO. BUT I RECOGNIZE
4 THAT THE LAW IS WHAT IT IS. WE LIVE BY THE LAW. I KNOW YOU
5 WILL LIVE BY THE LAW, AND PERHAPS THE ONLY QUESTION IS WHETHER
6 MR. HENSON WILL EVER LIVE BY THE LAW.
7 MR. HENSON KNEW WHAT HE WAS DOING. HE KNEW THAT HE
8 DID IT WITH THE INTENT OF INJURING US. YOU WILL HEAR THAT THE
9 FACTORS THAT YOU WILL CONSIDER, AND THE JUDGE WILL INSTRUCT YOU
10 ON STATUTORY DAMAGES, ARE AS FOLLOWING, OR AS FOLLOWS.
11 INJURY, YOU CAN CONSIDER INJURY TO US.
12 NOW, THAT DOESN'T MEAN WE CAN PROVE IT UP, THE
13 AMOUNT, BECAUSE IF WE COULD, WE'D SUE HIM FOR ACTUAL DAMAGES.
14 NUMBER TWO, THE NATURE OF THE INFRINGED WORK. THIS
15 IS AN UNPUBLISHED WORK. THE AUTHOR DID NOT WANT IT PUBLISHED.
16 RTC, WHEN IT BECAME THE COPYRIGHT OWNER, DID NOT WANT IT
17 PUBLISHED.
18 THIS IS VERY MUCH DIFFERENT THAN MY EXAMPLE OF THE
19 BOOTLEGGED VIDEOTAPE ON THE TITANIC. THE COPYRIGHT HOLDER THERE
20 WANTS IT PUBLISHED. HE WANTS TO SELL IT. THE ONLY DIFFERENCE
21 IS HE'S SAYING, "HEY, YOU STOLE IT AND YOU'RE GETTING THE MONEY
22 I WOULD MAKE IF I SOLD IT." SO IT'S REALLY ABOUT MONEY.
23 THIS IS ABOUT SOMETHING FAR MORE IMPORTANT. THIS IS
24 ABOUT AN AUTHOR WHO SAYS "I DON'T WANT THIS WORK PUBLISHED
25 BECAUSE PEOPLE ARE NOT GOING TO UNDERSTAND IT."
663
1 AND MR. HENSON COMES ALONG AND PUBLISHED IT, SO ONE
2 OF THE THINGS THAT YOU WILL CONSIDER IS THE NATURE OF THE
3 INFRINGED WORK.
4 ANOTHER FACTOR YOU WILL CONSIDER, IN STATUTORY
5 DAMAGES, IS THE PUNISHMENT OF THE DEFENDANT. STATUTORY DAMAGES
6 HAS AN ELEMENT OF PUNISHMENT. IF YOU THINK HE DID BAD, HE NEEDS
7 TO BE PUNISHED. IF YOU THINK THAT HE IS DESERVING OF
8 PUNISHMENT, THAT IS ONE OF THE FACTORS YOU WILL CONSIDER IN
9 DECIDING HOW MUCH OF AN AWARD TO GIVE.
10 NEXT, DETERRENCE OF MR. HENSON. AND DETERRENCE,
11 I'LL SPEAK ABOUT A LITTLE MORE IN A FEW MOMENT, DETERRENCE MEANS
12 WHAT'S GOING TO GET HIM TO STOP DOING THIS? WHAT DO WE HAVE TO
13 DO TO CONVINCE HIM THAT HE SHOULDN'T BE DOING THIS AGAIN?
14 AND THE LAST FACTOR YOU WILL CONSIDER IS THE
15 DETERRENCE OF OTHERS, AND THAT HAS BEEN ALLUDED TO AT TIMES
16 DURING THIS TRIAL WHEN WE ASK QUESTIONS ABOUT OTHER PEOPLE
17 POSTING, WILL THEY BE DETERRED, THE ESSENTIAL ELEMENT OF THE
18 DETERRENCE OF OTHERS ARE, IF YOU KNOW THAT MR. HENSON DID THIS,
19 AND HE SUFFERED $100,000 DAMAGE AWARD FOR DOING THIS, ARE YOU
20 GOING TO BE DETERRED FROM DOING IT? "YOU" SOMEBODY ELSE, NOT
21 YOU THE JURY, OF COURSE.
22 THAT'S WHAT DETERRENCE OF OTHERS MEANS.
23 LET'S TALK ABOUT THE EVIDENCE WE PRESENTED. 90
24 PERCENT OF THE EVIDENCE WE PRESENTED GOES TO ONE THING,
25 DETERRENCE OF MR. HENSON.
664
1 AND THE REASON WE DID IS BECAUSE, AS I SAID TO YOU
2 AT THE BEGINNING, IN ORDER TO FIGURE OUT WHAT KIND OF DAMAGE
3 AWARD WILL DETER MR. HENSON FROM EVER INFRINGING OUR COPYRIGHTS
4 AGAIN, YOU HAVE TO HAVE AN UNDERSTANDING OF WHAT MR. HENSON IS,
5 WHAT KIND OF A PERSON HE IS, WHAT KIND OF A HUMAN BEING HE IS,
6 AND WE PUT IN A LOT OF HIS POSTINGS TO KIND OF GIVE YOU A
7 PICTURE, TO SAY TO YOU, THIS IS MR. HENSON.
8 A LOT OF PEOPLE USE AN EXAMPLE WHEN IT COMES TO
9 DETERRENCE, THE EXAMPLE OUT OF SILICON VALLEY IS BILL GATES,
10 ALTHOUGH HE'S NOT IN SILICON VALLEY ANYMORE. WHAT WILL DETER
11 THE AVERAGE PERSON, $100,000 WILL MEAN NOTHING TO A BILLIONAIRE.
12 HE COULD SAY, "ALL RIGHT, SO I GET HIT FOR 100,000, I'LL GO OUT
13 AND DO IT AGAIN."
14 SO ONE OF THE FACTORS YOU HAVE TO CONSIDER IS WHAT
15 IS IT GOING TO TAKE TO DETER MR. HENSON FROM DOING THIS AGAIN?
16 AND IN ORDER TO DO THAT, WE PUT THE EVIDENCE BEFORE YOU ABOUT
17 WHAT MR. HENSON IS, WHO HE IS AND WHAT HE IS.
18 AND AS THE JUDGE HAS TOLD YOU, THIS EVIDENCE HAS
19 NOTHING TO DO WITH WILLFULNESS, HAS NOTHING TO DO WITH ANYTHING
20 ELSE. YOU CONSIDER IT JUST FOR THIS ONE FACTOR IN STATUTORY
21 DAMAGES, NAMELY, WHAT'S IT GOING TO TAKE TO DETER MR. HENSON?
22 BY THE WAY, MR. HENSON HAS NOT PRESENTED TO YOU ANY
23 CLAIM OF INABILITY TO PAY. A DEFENDANT FACED WITH A CLAIM FOR
24 DAMAGES HAS THE RIGHT TO COME TO COURT AND SAY, "I CAN BE
25 DETERRED WITH A LITTLE BIT OF MONEY BECAUSE I DON'T HAVE A LOT
665
1 OF MONEY," AND OBVIOUSLY A PERSON WHO'S MAKING $10,000 A YEAR,
2 IT'S PERHAPS GOING TO TAKE LESS TO DETER THEM.
3 YOU HAVE HEARD NO EVIDENCE FROM MR. HENSON, HE HAS
4 NOT COME TO YOU AND SAID, I CANNOT AFFORD TO PAY $100,000.
5 (CHANGE IN REPORTERS.)
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
666
1 MR. ROSEN: WHAT WILL DETER MR. HENSON?
2 WELL, WE'VE PRESENTED A LOT OF EVIDENCE TO YOU AND
3 I CAN TELL YOU WHAT DID NOT WORK IN DETERING HIM.
4 NUMBER ONE, HE WAS ENJOINED.
5 YOU HEARD AND SAW AFTER THIS COURT ISSUED
6 AN INJUNCTION AGAINST HIM PUNISHABLE BY, AMONG
7 OTHER THINGS, PRISON, MR. HENSON SAID TWO MONTHS
8 AGO "I'M GOING TO GO OUT AND DO IT AGAIN IF I CAN
9 GET SOME NATIONAL T.V. NETWORK TO COVER ME DOING
10 IT. I WANT TO MAKE A MEDIA EVENT AND IF I CAN GET
11 THEM TO COVER IT, I'M GOING TO GO DO IT AGAIN."
12 AND YOU HEARD MR. HENSON LAST WEEK SAY AT
13 THE VERY TIME THAT YOU WERE BEING SEATED AS THIS
14 JURY LAST TUESDAY, MR. HENSON THAT VERY DAY POSTED
15 THE -- TO THE INTERNET -- THE "HENSON NEEDS HELP."
16 AND HE INVITED OTHER PEOPLE TO POST NOTS 34 AND
17 WITHIN HOURS THREE PEOPLE DID. IS MR. HENSON
18 REFORMED? HAS HE LEARNED HIS LESSON? HAS MR.
19 HENSON COME TO YOU AND SAID, "LADIES AND GENTLEMEN
20 OF THE JURY, I KNOW I MADE A MISTAKE, I PROMISE I
21 WON'T DO IT AGAIN, DON'T GIVE A BIG DAMAGE AWARD"?
22 NO.
23 IN FACT, THE VERY LAST THING THAT YOU
24 HEARD FROM MR. HENSON'S MOUTH TODAY WAS AN ANSWER
25 TO A QUESTION FROM HIS OWN ATTORNEY, IT WAS A
667
1 FOLLOW-UP TO A QUESTION I ASKED. I ASKED MR.
2 HENSON IF YOU CAME ACROSS SOME OTHER UNPUBLISHED
3 COPYRIGHTED WORK THAT RTC OWNED AND YOU CAME TO
4 THIS BELIEF THAT IT WAS CRIMINAL, WOULD YOU VIOLATE
5 THAT COPYRIGHT? WOULD YOU INFRINGE IT? WOULD YOU
6 POST IT? AND IN ANSWER TO HIS OWN COUNSEL'S
7 QUESTION WHEN MR. BERRY REPHRASED AND REPUT THAT
8 QUESTION TO HIM, THE VERY LAST THING THAT YOU HEARD
9 FROM THAT WITNESS STAND WAS "I WOULDN'T DO IT IN MY
10 OWN NAME."
11 DO YOU HEAR MR. HENSON SAY I WON'T DO IT
12 AGAIN? DO YOU HEAR MR. HENSON SAY I'M A COPYRIGHT
13 INFRINGER, I PROMISE TO REFORM? NO. WHAT YOU HEAR
14 HIM SAY IS NEXT TIME I DO IT, I'LL BE SMARTER, I'LL
15 WEAR THE MASK SO IT WILL BE TOUGHER FOR YOU TO FIND
16 ME AND SUE ME. DOES THAT SOUND LIKE ANYTHING THAT
17 HAS HAPPENED IN TWO YEARS OF LITIGATION? DOES IT
18 SOUND TO YOU LIKE ANY OF THIS HAS DETERED MR.
19 HENSON ONE BIT?
20 MR. HENSON SAYS, "I'M AN UPFRONT KIND OF
21 GUY." HE SAID, "YEAH, I POSTED IT IN MY OWN NAME.
22 I DIDN'T USE THOSE ANONYMOUS REMAILERS." HE WOULD
23 LIKE TO TAKE CREDIT FOR THIS, GEE, AREN'T I AN
24 UP-FRONT KIND OF GUY, A HERO. I THINK YOU HEARD
25 THE TESTIMONY LAST WEEK THE REASON MR. HENSON
668
1 POSTED HIS OWN NAME WAS THROUGH AN ANONYMOUS
2 REMAILER WAS HE WANTED THE STATUS. HE SAID, "HEY,
3 IF YOU GOT A LETTER FROM MRS. KOBRIN YOU CAN'T JUST
4 SAY YOU GOT IT. YOU'VE GOT TO PUT IT UP ON THE
5 INTERNET, AND YOU'VE GOT TO SHOW YOU GOT THAT
6 LETTER, BECAUSE THEN YOU GET YOUR PROMOTION TO SP3
7 OR SP4," WHATEVER IT WAS.
8 MR. HENSON DID IT IN HIS OWN NAME FOR ONE
9 REASON, BECAUSE WHAT THIS CASE HAS BEEN ALL ABOUT
10 FROM THE VERY BEGINNING IS MR. HENSON'S DESIRE FOR
11 ATTENTION, HIS DESIRE FOR STATUS AMONG HIS CLIQUE
12 OF FRIENDS ON THE ARS. THAT'S WHY HE WAS AN
13 UP-FRONT GUY.
14 MR. HENSON IS A VERY UNUSUAL DEFENDANT IN
15 AN INTELLECTUAL PROPERTY CASE FOR ONE REASON. HE
16 KNOWS BETTER. YOU HAVE HEARD HE'S WRITTEN ARTICLES
17 WHICH ARE COPYRIGHTED, HE OWNS SIX PATENTS, HE TOLD
18 YOU. SIX PATENTS.
19 IF THERE IS OTHER ASPECTS OF INTELLECTUAL
20 PROPERTY IF SOMEBODY -- IF ANYBODY SHOULD KNOW
21 BETTER, IT IS SOMEBODY WHO HAS THEIR OWN
22 INTELLECTUAL PROPERTY THAT THEY'RE TRYING TO
23 PROTECT.
24 YOU'LL ASK YOURSELF "IF I INFRINGE MR.
25 HENSON'S COPYRIGHT ON SOME ARTICLE ABOUT CRYONIX
669
1 ABOUT CUTTING SOMEBODY'S HEAD OFF, WOULD HE SUE?"
2 I THINK HE MENTIONED ONE IN AGRICULTURAL AND
3 GROWING IN OUTER SPACE, WOULD HE HAVE A RIGHT TO
4 SUE? MORE THAN ANYBODY ELSE, MORE THAN THE AVERAGE
5 DEFENDANT THAN CAN SAY, "GEE, I DON'T KNOW ANYTHING
6 ABOUT INTELLECTUAL PROPERTY. HOW DO YOU SPELL
7 COPYRIGHT?" THIS IS A VERY INTELLIGENT AND WELL
8 INFORMED DEFENDANT. THERE IS NO QUESTION THAT WHAT
9 HE DID WAS NOT ACCIDENTAL, NO QUESTION THAT WHAT HE
10 DID WAS NOT BORNE OUT OF STUPIDITY.
11 LET'S GO TO THE LAST FACTOR. EXCUSE ME.
12 THE LAST ISSUE ON DETERING MR. HENSON. MR. HENSON
13 HAS OFFERED SOME TESTIMONY TO YOU THAT HE DOESN'T
14 THINK THAT A LARGE DAMAGE AWARD WILL DETER HIM, AND
15 PERHAPS IT WON'T EVEN DETER OTHERS. WE DON'T KNOW.
16 WE DON'T KNOW IF $100,000 DAMAGE AWARD WILL DETER
17 MR. HENSON. WHAT WE DO KNOW IS NOTHING HAS DETERED
18 HIM UP UNTIL NOW, AND THEREFORE, LADIES AND
19 GENTLEMEN OF THE JURY, LET'S TRY, LET'S SEE IF
20 $100,000 WILL DETER MR. HENSON. LET'S SEE IF
21 $100,000 WILL DETER OTHERS. WE'VE TRIED OTHER
22 THINGS IN CONNECTION WITH MR. HENSON, INJUNCTIONS
23 HAVE NOT DONE IT. LET'S SEE IF $100,000 DOES IT.
24 DETERANCE OF OTHERS. I WANT YOU TO
25 RECALL HOW THIS ISSUE CAME UP IN THIS CASE. MR.
670
1 HENSON HIMSELF OFFERED THAT PEOPLE OF POSTING NOTS
2 34 ON THE INTERNET. WE DIDN'T BRING IT OUT. HE
3 OFFERED IT. HE SAID, HEY, JUST LAST NIGHT, LAST
4 THURSDAY PEOPLE WERE POSTING NOTS 34. HE DIDN'T
5 TELL YOU WE HAD TO BRING OUT THAT THOSE THREE
6 PEOPLE, I THINK, WHO POSTED IT, DID SO BECAUSE MR.
7 HENSON DID THAT FAMOUS "HENSON NEEDS HELP." HE
8 INDUCED OTHERS TO DO IT.
9 NOW, MR. HENSON SAYS, WELL, ONE OF THESE
10 GUYS IS OUTSIDE THE U.S. NO DETERRENT THERE. I
11 AGREE. ORDINARILY IT'S A LITTLE DIFFICULT TO SUE
12 SOMEBODY OUTSIDE OF THE UNITED STATES FOR
13 INFRINGEMENT OF U.S. COPYRIGHT LAW. SO TO THE
14 EXTENT THAT SOMEBODY OUTSIDE OF THE UNITED STATES
15 IS NOT GOING TO BE DETERED BECAUSE HE CAN'T BE SUED
16 HERE, MR. HENSON IS TECHNICALLY RIGHT, IF WE WANTED
17 TO SUE SOMEBODY IN SWEDEN OR DENMARK WHO IS
18 INFRINGING, WE WOULD HAVE TO GO THERE.
19 MR. HENSON CONCEDES THAT A GOOD DEAL OF
20 THE PEOPLE IN THE ARS ARE HERE IN THE UNITED
21 STATES. THEY ARE SUBJECT TO U.S. COPYRIGHT LAW,
22 AND THOSE ARE THE PEOPLE THAT CAN BE DETERED FROM A
23 SUBSTANTIAL AWARD ISSUED BY YOU, THE JURY.
24 AT THE BEGINNING OF THIS CASE I ASKED YOU
25 OR I GUESS I SUGGESTED THAT PERHAPS WE CAN REACH AN
671
1 UNDERSTANDING. I SAID TO YOU THAT -- I TOLD YOU
2 THAT THE EVIDENCE THAT I WAS GOING TO SHOW YOU.
3 AND I TOLD YOU THAT IF I DID NOT SHOW YOU THAT
4 EVIDENCE, YOU WOULD CERTAINLY HAVE A RIGHT TO BE
5 MAD AT ME FOR LEADING YOU DOWN THE WRONG PATH. AND
6 I ALSO ASKED YOU IF I DID SHOW YOU WHAT I TOLD YOU
7 I WAS GOING TO SHOW YOU BY WAY OF THE EVIDENCE --
8 BLESS YOU -- IF I DID SHOW YOU WHAT I TOLD YOU I
9 WAS GOING TO SHOW YOU, THEN AT THIS POINT IN TIME
10 IN MY CLOSING STATEMENT, I WAS GOING TO COME BACK
11 AND ASK YOU TO IMPOSE TO AWARD $100,000, THE
12 MAXIMUM THE LAW ALLOWS AGAINST MR. HENSON IN THIS
13 CASE. THAT'S WHAT I ASKED YOU TO DO.
14 ONE FINAL NOTE, AND THIS IS PERHAPS A
15 PERSONAL NOTE AS WELL, YOU HAVE BEEN
16 EXTRAORDINARILY ATTENTIVE. EVERYBODY HAS BEEN
17 LISTENING CAREFULLY. NOBODY IN THIS COURTROOM
18 COULD HELP BUT NOTICE THE NOTES THAT HAVE BEEN
19 TAKEN, THE ATTENTION THAT YOU HAVE SHOWN TO
20 EVERYTHING THAT HAS HAPPENED, WHETHER IT'S
21 DOCUMENTED, PUT UP ON THE ELMO. I THANK YOU FOR
22 THAT. RIGHT OR WRONG, THIS IS A SYSTEM OF JUSTICE
23 AND ANYBODY, EVEN MR. HENSON, IS ENTITLED TO THE
24 BEST JUSTICE OF THAT A JURY CAN DELIVER AND YOUR
25 ATTENTIVENESS IS APPRECIATED BY EVERYONE.
672
1 THERE HAVE BEEN TIMES IN THIS TRIAL
2 WHEN -- I'M LOSING MY VOICE -- PROBABLY BECAUSE I
3 WAS ENGAGING IN VERY ACTIVE EXCHANGES WITH MR.
4 HENSON. I HAD NO INTENTION OF IN ANY WAY DEMEANING
5 MR. HENSON HIMSELF BUT WHAT HE DOES, WHAT HE SAYS,
6 WHAT HE STANDS FOR, AND YOU CAN APPRECIATE THAT IN
7 THIS KIND OF A CASE, THIS IS AN EXTRAORDINARILY
8 EMOTIONAL CASE BECAUSE NO MATTER WHAT THE JUDGE
9 SAID, NO MATTER WHAT I SAID, MR. HENSON SET OUT ON
10 THIS CASE TO PUT SCIENTOLOGY ON TRIAL, NOT TO DEAL
11 WITH THE ISSUES OF COPYRIGHT INFRINGEMENT BUT TO
12 PUT SCIENTOLOGY ON TRIAL AND TO MAKE A -- MAKE A
13 MOCKERY OF IT AND TO THE EXTENT THAT MY -- MY
14 EXCHANGES WITH MR. HENSON WERE ANIMATED, I HOPE YOU
15 WILL UNDERSTAND THAT.
16 THANK YOU VERY MUCH.
17 THE COURT: ALL RIGHT. MR. BERRY.
18 (WHEREUPON, COUNSEL FOR THE DEFENDANT
19 GAVE HIS CLOSING ARGUMENT.)
20 MR. BERRY: LADIES AND GENTLEMEN OF THE
21 JURY, $500, $500 IS WHAT YOU'RE ENTITLED TO AWARD
22 AGAINST MR. HENSON IF YOU WISH TO, AND I WILL COME
23 BACK TO THAT LATER ON IN MY ARGUMENT.
24 JOHN F. KENNEDY ASKED "NOT WHAT YOUR
25 COUNTRY CAN DO FOR YOU BUT WHAT YOU CAN DO FOR YOUR
673
1 COUNTRY." AND THAT ONE MAN CAN MAKE A DIFFERENCE.
2 MR. HENSON WAS BORN IN THOSE TURBULENT
3 DAYS OF THE '60S WHEN PEOPLE WERE MARCHING IN THE
4 STREETS, WHEN PEOPLE WERE ENGAGING IN CIVIL
5 DISOBEDIENCE, WHEN THERE WAS TURBULENCE ON THE
6 CAMPUS, CIRCUMSTANCES OF NATIONAL DISOBEDIENCE, AND
7 YOU HEARD HIM TALK ABOUT CIVIL DISOBEDIENCE.
8 AND IN A WAVE THE '60S WERE AN EXTENSION
9 OF THE AMERICAN REVOLUTION, WHEN WE REBELLED
10 AGAINST OTHER LAWS, LAWS IMPOSED BY NATIONS ACROSS
11 THE SEAS. WHEN WE REVOLTED AGAINST LAWS THAT WE
12 BELIEVED WERE WRONG, NOT ONLY HEAR, EVEN IN MY
13 NATIVE NEW ZEALAND THEY CHOPPED DOWN THE BRITISH
14 FLAGPOLE.
15 SCARLET PIMPERNEL RODE HORSES AND THE
16 GEORGE WASHINGTON STOOD UP AGAINST WHAT HE BELIEVED
17 WERE LAWS THAT WERE WRONG, AND HE LATER BECAME OUR
18 FIRST PRESIDENT FOR IT AND WE REVERE HIM FOR IT.
19 AND IN THOSE TURBULENT TIMES OUR CONCEPTS
20 OF RELIGIOUS FREEDOMS WERE BORN, THE RIGHT TO
21 BELIEVE IN EVERYTHING FROM EMACULATE CONCEPTIONS TO
22 SPACE COOTIES POSSESSING OUR BODIES AND REQUIRING
23 EXORCISM.
24 WE DON'T BURN WITCHES ANYMORE FOR NOT
25 BELIEVING IN THE ESTABLISHED RELIGION. WE HAVE
674
1 ABOLISHED BOTH HARASSING AND BLASPHEMY EVEN WHEN IT
2 TRIES TO HIDE BEHIND COPYRIGHTS, AND WE ABOLISHED
3 QUACKERY BUT MORE OF THAT LATER.
4 BUT THE RIGHT TO BELIEVE IN THE
5 RIDICULOUS IS ENSHRINED IN OUR CONSTITUTION, AND
6 THE RIGHT TO HAVE UNREASONABLE BELIEFS IS ALSO
7 ENSHRINED IN OUR SYSTEM OF JUSTICE.
8 WHETHER MR. HENSON REALLY BELIEVED WHAT
9 HE DID IS ONE OF THE ISSUES BEFORE YOU. AND SO IS
10 ALSO THE ISSUE OF CRIMINAL CONDUCT. THIS NATION
11 HAS NEVER ALLOWED RELIGIONS, OR WRITERS, OR OTHERS
12 CLAIMING COPYRIGHTS TO PRACTICE WHATEVER THEY
13 LIKED. A RELIGION CAN HAVE A BELIEF IN MURDER.
14 THAT IS CONSTITUTIONALLY PROTECTED, BUT THE MOMENT
15 A RELIGION AND ITS ADHERENCE CARRIES OUT THAT
16 BELIEF IN MURDER, THE CRIMINAL LAWS STEP IN.
17 FOR A LONG TIME WE EVEN PREVENTED PEOPLE
18 FROM CARRYING OUT SOME OF THEIR RELIGIOUS
19 PRACTICES. WE PREVENTED INDIANS FROM SMOKING
20 PEOYTE, FOR EXAMPLE, AND FOR A LONG TIME THROUGHOUT
21 OUR HISTORY THERE HAVE BEEN DEFENSES AND CONCEPTS
22 SUCH AS THE LESSER OF TWO EVILS.
23 THE REVEREND BONHOFFER ACTED IN CIVIL
24 DISOBEDIENCE AGAINST THE NATZIS AND DIED FOR IT.
25 MARTIN LUTHER KING ACTED AGAINST CIVIL
675
1 DISOBEDIENCE AND WENT TO JAIL FOR IT. MARTIN
2 LUTHER KING REBELLED AGAINST RELIGIONS OF THE DAY
3 AND STARTED THE REFORMATION. BEFORE THAT THE MONKS
4 WROTE THE BOOKS AND THEN IT CAME ALONG THE PRINTING
5 PRESS AND THE ROMAN CATHOLIC CHURCH LOST ITS
6 MONOPOLY ON THE ESTABLISHED RELIGION.
7 WHAT WOULD HAVE HAPPENED HAD IT TRIED TO
8 COPYRIGHT THE BIBLE AND CONTINUE TO LITIGATE EVERY
9 TIME SOMEONE QUOTED FROM IT?
10 AND IN A WAY THAT'S WHAT BRINGS US HERE
11 TODAY BECAUSE THIS MAN OF GOOD WILL HAS REBELLED
12 AGAINST WHAT HE BELIEVES IS THE IMPROPER USE OF
13 COPYRIGHT. HE HAS TESTIFIED THAT HE BELIEVES THIS
14 IS A CRIMINAL CULT ENGAGED IN DANGEROUS DEADLY
15 CRIMINAL ACTIVITY. AND HE POSTED NOTS 34 BECAUSE
16 HE BELIEVED THIS DANGEROUS CRIMINAL CULT WAS ACTING
17 IN DEFIANCE OF A FEDERAL JUDGE'S INJUNCTION. HE
18 BELIEVED THAT NO ONE, NOT EVEN A CHURCH, COULD HIDE
19 ITS CONDUCT BEHIND A COPYRIGHT.
20 NOW, LET'S LOOK BACK AT SOME OF THE
21 EVIDENCE. I SAID TO YOU DURING MY OPENING
22 STATEMENT THAT -- THANK YOU -- I EXPECTED THERE TO
23 BE TWO WITNESSES, MR. HENSON AND MR. MCSHANE, WHO
24 COUNSEL INTRODUCED TO YOU AND WHO HAS BEEN IN THE
25 COURTROOM ALL OF THE TIME, THE REPRESENTATIVE OF
676
1 RTC. I SAID THAT BECAUSE I BELIEVED THE PLAINTIFF
2 WAS GOING TO CALL HIM. I WAS WRONG. HE WAS NOT
3 CALLED. HE DID NOT TESTIFY. SO ALL YOU HAVE IS
4 ONE WITNESS HERE, ONE WITNESS, HIS EVIDENCE AS TO
5 HIS STATE OF MIND AND THE REASONABLENESS OF HIS
6 STATE OF MIND STANDS UNCONTROVERTED. NO ONE HAS
7 TESTIFIED THE OTHER WAY. NO ONE.
8 ALL YOU HAVE IS MR. HENSON'S STATE OF
9 MIND AND THE ARGUMENTS OF RTC'S COUNSEL. STRANGE,
10 BUT THAT'S WHAT WE HAVE.
11 NO ONE FROM RTC HAS GOT UP ON THIS
12 WITNESS STAND AND SAID, "NO, MR. HENSON, IT IS NOT
13 THE PRACTICE OF MEDICINE." NO ONE HAS GOT UP THERE
14 AND EXPLAINED WHAT IT IS NOT IF IT'S NOT THE
15 PRACTICE OF MEDICINE.
16 AND ON THE FACE OF IT, THE DOCUMENT IS
17 OBVIOUSLY THE PRACTICE OF MEDICINE. YOU'VE GOT IT
18 BEFORE YOU. IT REFERS TO THE SEQUENCE FOR HANDLING
19 A PHYSICAL CONDITION, AND I'M NOT GOING TO GO
20 THROUGH IT AS WE DID WHEN THE COURTROOM WAS
21 CLEARED.
22 BUT I ASK YOU TO REMEMBER THAT TESTIMONY.
23 AND I ASK YOU TO GO THROUGH IT IN THE JURY ROOM AND
24 DO WHAT I HAVE DONE AND COUNT UP THE NUMBER OF
25 TIMES CERTAIN WORDS ARE USED. THE WORD ILLNESS
677
1 USED 19 TIMES; THE WORD CURES USED NINE TIMES; THE
2 WORD PHYSICAL USED SIX TIMES; THE WORD HANDLED, AND
3 THAT WAS EXPLAINED TO YOU, USED FIVE TIMES; THE
4 WORD FULLY USED FOUR TIMES IN CONNECTION WITH
5 HANDLING. THE WORD ILLNESS USED THREE TIMES; THE
6 WORD CLUSTER, AND THAT WAS EXPLAINED TO YOU, USED
7 THREE TIMES; CLUSTERS THE PLURAL FOURTEEN TIMES;
8 CONDITIONS, PHYSICAL CONDITIONS USED NINE TIMES;
9 SEQUENCES FOR HANDLING THE CONDITION, HE'S HAD SIX
10 TIMES; STEPS FOR HANDLING THE PHYSICAL CONDITIONS
11 USED FOUR TIMES; PROTESTING THE BT'S, THREE TIMES;
12 BLOWING THE BT'S USED THREE TIMES; BEING REFERRING
13 TO BT'S, NINE TIMES; STEPS IN HANDLING THESE
14 PHYSICAL CONDITIONS USED NINE TIMES. HANDLED USED
15 ANOTHER NINE TIMES; PERIOD, FOUR TIMES; HANDLING
16 USED THREE TIMES; INCIDENT, THE CAUSE OF THE
17 PHYSICAL CONDITION, USED THREE TIMES.
18 ANY REASONABLE PERSON LOOKING AT THAT
19 DOCUMENT CANNOT HELP BUT CONCLUDE THAT IT DEALS
20 WITH THE HANDLING OF A PHYSICAL CONDITION WITH AN
21 E-METER, AND NO ONE HAS TAKEN THE STAND FROM RTC TO
22 SAY OTHERWISE, AND THEY HAD MANY IN THE COURTROOM
23 WHO COULD HAVE DONE SO.
24 (CHANGE IN REPORTERS.)
25
678
1 MR. ROSEN: YOUR HONOR, I OBJECT TO THIS. THIS IS
2 IMPROPER.
3 THE COURT: THE ISSUE IS WHAT MR. HENSON'S
4 REASONABLE BELIEF WAS AND WHETHER IT WAS THE PRACTICE OF
5 MEDICINE OR WAS NOT THE PRACTICE OF MEDICINE IS NOT THE ISSUE IN
6 THIS CASE.
7 THE QUESTION IS, AT THE TIME MR. HENSON DID HIS
8 POSTING, WHAT WAS HIS REASONABLE BELIEF?
9 MR. BERRY: AND I SUBMIT, LADIES AND GENTLEMEN --
10 THE COURT: SOMEBODY CAN HAVE -- LET ME FINISH.
11 MR. BERRY: OH.
12 THE COURT: SOMEBODY CAN HAVE A REASONABLE BELIEF
13 THAT SOMETHING IS TRUE WHICH IS NOT TRUE. SOMEBODY COULD HAVE,
14 NOT HAVE A REASONABLE BELIEF THAT SOMETHING IS TRUE AND IT TURNS
15 OUT IT IS TRUE. SO THAT'S NOT THE ISSUE.
16 THE ISSUE IS WHAT MR. HENSON'S REASONABLE BELIEF
17 WAS, OR ONE OF THE ISSUES IS WHAT HIS REASONABLE BELIEF WAS AT
18 THE TIME HE POSTED.
19 MR. BERRY: AND LADIES AND GENTLEMEN OF THE JURY, I
20 SUBMIT THAT ON THE BASIS OF EVERYTHING MR. HENSON KNEW AT THE
21 TIME, HAD READ AT THE TIME, HAD HEARD AT THE TIME, LED HIM TO
22 THE REASONABLE BELIEF THAT THIS DOCUMENT INVOLVED THE UNLAWFUL
23 PRACTICE OF MEDICINE, AND THAT HE WAS JUSTIFIED IN POSTING IT TO
24 THE INTERNET AS A WARNING.
25 NO ONE DISPUTES THAT THERE IS A REGISTERED COPYRIGHT
679
1 AT THE MOMENT IN NOTS 34. NO ONE DISPUTES MR. HENSON POSTED IT
2 AND THAT THIS IS AN INFRINGEMENT.
3 BUT THE REASON HE POSTED IT IS THE FREE SPEECH
4 ISSUE, THE FREE SPEECH RIGHT, PERHAPS EVEN THE OBLIGATION OF
5 CITIZENS TO EXPOSE CRIMINAL ACTIVITIES, AND HE REASONABLY
6 BELIEVED THAT THIS WAS A CRIMINAL ACTIVITY, THE UNLAWFUL AND
7 PREVIOUSLY PROHIBITED UNLICENSED PRACTICE OF MEDICINE USING AN
8 E-METER BY THE CHURCH OF SCIENTOLOGY.
9 HE BELIEVED HE WAS A PROPER WHISTLE BLOWER. IN THIS
10 CASE, THE CRIMINAL ACTIVITY THAT HE BELIEVED HE WAS EXPOSING WAS
11 THE USE OF A COPYRIGHTED DOCUMENT TO HIDE CRIMINAL ACTIVITY.
12 AND IN REACHING THAT CONCLUSION, YOU HEARD HIM
13 TESTIFY THAT HE WAS FAMILIAR WITH FAIR USE, AND HE EXPLAINED THE
14 FAIR USE ELEMENTS TO YOU THAT LED TO HIS BELIEF THAT HE COULD SO
15 POST THE DOCUMENT.
16 AND YOU HEARD HIM EXPLAIN THAT HE THOUGHT HE HAD TO
17 POST ALL OF IT BECAUSE THAT WAS THE ONLY WAY OF FULFILLING HIS
18 SOCIAL OBLIGATION.
19 BUT EVEN THOUGH, AS A MATTER OF LAW, THE FAIR USE
20 DEFENSE HAS BEEN REJECTED, YOU CAN STILL CONSIDER IT ON THE
21 ISSUE OF DAMAGES.
22 MR. ROSEN: OBJECTION, YOUR HONOR. THAT'S AN
23 INCORRECT STATEMENT OF THE LAW.
24 THE COURT: IT'S ARGUMENT. I'M GOING TO ALLOW IT.
25 MR. BERRY: AND IF YOU BELIEVE MR. HENSON WAS
680
1 HONESTLY AND REASONABLY ACTING WITHIN THE FAIR USE EXCEPTION,
2 THAT HE BELIEVED HE HONESTLY AND REASONABLY HAD THAT EXCEPTION,
3 YOU CAN CONSIDER THAT CRITERIA.
4 NOW, HE HAS TESTIFIED ABOUT HIS KNOWLEDGE OF
5 SCIENTOLOGY AT THE TIME HE POSTED NOTS 34, AND YOU CAN CONSIDER
6 THAT KNOWLEDGE HE HAD IN DECIDING WHETHER HIS CONDUCT WAS
7 WILLFUL AS DEFINED BY LAW. IN OTHER WORDS, DID HE HONESTLY AND
8 IN GOOD FAITH BELIEVE THAT HE WAS ACTING PROPERLY IN REPOSTING
9 NOTS 34 TO THE NET?
10 NOW, THE PLAINTIFF PLAYED SOME EXCERPTS FROM A
11 DEPOSITION THAT WAS TAKEN OF MR. HENSON. THEY SAID HE DIDN'T
12 TESTIFY ABOUT CRIMINALITY IN HIS DEPOSITION.
13 WELL, THEY PLAYED YOU PORTIONS --
14 MR. ROSEN: OBJECTION. THAT IS A MISSTATEMENT OF
15 THE RECORD.
16 THE COURT: I THINK THAT IS.
17 MR. BERRY: THEY SAID THAT HE CHANGED HIS STORY
18 BETWEEN HIS DEPOSITION AND HIS TESTIMONY IN THIS COURTROOM.
19 MR. ROSEN: OBJECTION. THAT IS NOT THE STATEMENT IN
20 THE RECORD, YOUR HONOR.
21 THE COURT: YOU DID ARGUE THAT HE SAID ONE THING ONE
22 TIME AND ONE THING ANOTHER TIME. I THINK THAT'S FAIR --
23 MR. BERRY: WELL, YOU --
24 THE COURT: -- COMMENT ON THE EVIDENCE.
25 THE JURY CAN DECIDE. AND LET ME JUST REMIND THE
681
1 JURY THAT ARGUMENT IS NOT EVIDENCE. IT'S FOR YOU TO DECIDE WHAT
2 THE EVIDENCE WAS. IF YOU RECALL IT DIFFERENTLY THAN ONE OF THE
3 ATTORNEYS DOES, OR EVEN I DO, YOUR MEMORY OF IT, OF THE EVIDENCE
4 CONTROLS.
5 GO AHEAD.
6 MR. BERRY: AND A LOT OF EVIDENCE FROM THAT
7 DEPOSITION WAS PLAYED BEFORE YOU ON THE SCREEN, AND YOU SAW WHEN
8 IT WAS PLAYED THAT HIS T-SHIRT WAS CHANGED FROM FRAME TO FRAME,
9 AND FROM THAT, YOU CAN CONCLUDE THAT THAT, THAT VIDEOTAPED
10 DEPOSITION HAD BEEN EDITED, THAT IT HAD BEEN CUT AND PASTED TO
11 PORTRAY MR. HENSON IN THE WORST POSSIBLE LIGHT THAT PLAINTIFFS
12 COULD. IT WAS OBVIOUS FROM LOOKING AT IT. AND YOU EVEN SAW THE
13 DIFFICULTY I HAD IN EVEN FOLLOWING THE TRANSCRIPT.
14 AND IT REMINDED ME OF THE 1950'S WHEN
15 SENATOR MCCARTHY WAS CONDUCTING HIS HEARINGS, AND EDWARD MORROW
16 WAS PHOTOGRAPHING THOSE HEARINGS, AND HE DIDN'T LIKE
17 MR. MCCARTHY, AND HE CONTROLLED THE CAMERA.
18 SO WHENEVER MR. MCCARTHY, SENATOR MCCARTHY GOT MAD,
19 MR. MORROW WOULD TURN THE CAMERA ON MR. MCCARTHY, SO THE PICTURE
20 THAT THE PUBLIC GOT WAS IN SOME WAYS DISTORTED, MR. MCCARTHY
21 FOAMING, RANTING AND RAVING.
22 AND THAT WAS THE DISTORTED PICTURE THEY HAVE TRIED
23 TO GIVE YOU THROUGH THAT VIDEOTAPED DEPOSITION.
24 I TOLD YOU DURING MY OPENING STATEMENT THAT THERE
25 ARE TWO SIDES TO EVERY STORY, AND I SUBMIT YOU HAVE HEARD THEM,
682
1 AND YOU HAVE ALSO HEARD THE EVIDENCE BEING SLANTED AND IT'S
2 BEFORE YOU, IN YOUR EXHIBIT BOOKS, TO SEE WHAT IT REALLY IS.
3 FOR EXAMPLE, COUNSEL JUST ARGUED THAT MR. HENSON,
4 LAST WEEK, WENT ONTO THE INTERNET AND INVITED PEOPLE TO POST
5 NOTS 34.
6 BUT YOU HEARD THE EVIDENCE. THERE WAS NO SUCH
7 EVIDENCE.
8 AND YOU HAVE GOT EXHIBIT 61 BEFORE YOU, AND YOU CAN
9 READ IT FOR YOURSELF. ALL HE ASKED WAS A LIST OF WEB SITES, AND
10 HE TESTIFIED AT THE TIME THAT HE WAS NOT RESPONSIBLE FOR ANYONE
11 ELSE POSTING THAT DOCUMENT, THEN OR NOW.
12 AND PLAINTIFF HAS PUT BEFORE YOU TODAY EXHIBIT 63,
13 AN EXCERPT FROM THE STATUTES OF THE STATE OF CALIFORNIA DEALING
14 WITH THE PRACTICE OF MEDICINE.
15 HOWEVER, PLAINTIFF ONLY GIVES YOU PART OF THE
16 DOCUMENT. YOU CAN SEE FOR YOURSELF FROM THE INDEX OF THAT
17 DOCUMENT THAT THERE IS MUCH MORE TO IT.
18 THE COURT: I DON'T THINK -- I BELIEVE THAT YOU
19 OBJECTED TO 63 AND I SUSTAINED THE OBJECTION. I DON'T THINK 63
20 IS IN EVIDENCE.
21 MR. BERRY: OH, I STAND CORRECTED.
22 THE COURT: THERE WAS SOME READING FROM IT, IT WAS
23 ALLOWED DURING TESTIMONY, BUT I THINK THE ACTUAL EXHIBIT WAS NOT
24 ADMITTED.
25 MR. BERRY: I STAND CORRECTED.
683
1 AND YOU'VE GOT EXHIBIT 74 BEFORE YOU, AND COUNSEL
2 HAS ARGUED THAT ON PAGE 33, BETWEEN LINES 15 AND 23 --
3 MR. ROSEN: I DON'T THINK THAT'S IN EITHER, JUDGE.
4 MR. BERRY: SORRY, COUNSEL. I STAND CORRECTED.
5 MR. ROSEN: I DON'T KNOW WHAT MR. BERRY IS REFERRING
6 TO.
7 MR. BERRY: I STAND CORRECTED.
8 COUNSEL PUT BEFORE YOU IN EVIDENCE, AND REFERRED THE
9 WITNESS TO A PASSAGE WHICH STATES THAT HE DIDN'T UNCOMPRESS THE
10 FILES THAT HE DOWNLOADED FROM THETA.COM IN RESPONDING TO A
11 DOCUMENT REQUEST.
12 WELL, THE PLAINTIFF DIDN'T HAVE TO. HE HAD READ
13 THEM MONTHS AND MONTHS BEFORE THAT, AND HE HAD STORED THEM ON A
14 DISKETTE, COMPRESSED IT, AND ALL THAT THAT DOCUMENT THAT HAS
15 BEEN PLACED BEFORE YOU SAYS IS THAT HE DIDN'T UNCOMPRESS IT. IT
16 DOESN'T MEAN THAT HE HASN'T READ THE DOCUMENTS ON THETA.COM.
17 WHAT YOU HEARD THE WITNESS EXPLAIN WAS AT LEAST AS
18 SCIENTOLOGY SANCTIONED WEB SITE, HE DIDN'T KNOW WHETHER IT WAS
19 OFFICIAL OR NOT, BUT HE KNEW IT WAS ONE THAT WAS USED BY
20 SCIENTOLOGISTS, AND HE CONCLUDED THAT IF NOTS 34 WAS ON A
21 SCIENTOLOGY SANCTIONED WEB SITE, THAT AT LEAST THERE WAS
22 SOMETHING ABOUT ITS UNPUBLISHED STATE THAT COULD BE QUESTIONED.
23 AND THEY PUT BEFORE YOU EXHIBIT 142, UNITED STATES
24 OF AMERICA VERSUS AN ARTICLE OR DEVICE, HUBBORD ELECTROMETER,
25 FOUNDING CHURCH OF SCIENTOLOGY.
684
1 AND IT DIRECTED YOUR ATTENTION TO CERTAIN PORTIONS
2 OF THAT DECISION.
3 BUT THEY HAVE NOT GIVEN YOU THE WHOLE DECISION, AND
4 THEY HAVE NOT GIVEN YOU OTHER PORTIONS OF THAT DECISION THAT
5 THEY'D RATHER YOU NOT SEE.
6 THE COURT: THAT DECISION IS IN EVIDENCE IN ITS
7 ENTIRETY.
8 MR. BERRY: THEY DIDN'T TELL YOU, FOR EXAMPLE, THAT
9 THE COURT STATED THAT THE E-METER HAD BEEN CONDEMNED BY A UNITED
10 STATES DISTRICT, BY THE UNITED STATES DISTRICT COURT ON THE
11 GROUNDS THAT THE LITERATURE OF DIANETICS AND SCIENTOLOGY
12 CONTAINS FALSE AND MISLEADING CLAIMS OF A MEDICAL OR SCIENTIFIC
13 NATURE, AND YOU CAN SEE THAT ON PAGE 364 AND 365, AND THAT THE
14 E-METER HAS NO PROVEN USEFULNESS IN THE DIAGNOSIS, TREATMENT OR
15 PREVENTION OF ANY DISEASE, NOR IS IT MEDICALLY OR SCIENTIFICALLY
16 CAPABLE OF IMPROVING ANY BODILY FUNCTION.
17 AND I COULD GO ON AND ON THROUGH THAT DECISION AND
18 POINT OUT OTHER SIMILAR PASSAGES THAT HAVE NOT BEEN GIVEN TO
19 YOU, BUT WHICH MR. HENSON READ WHICH FORMED PART OF HIS BELIEF.
20 AND I SUBMIT, LADIES AND GENTLEMEN, ON THE BASIS OF
21 WHAT YOU YOURSELVES CAN READ WAS A VERY REASONABLE BELIEF THAT
22 THE GOVERNMENT HAD ENJOINED THE USE OF THE E-METER IN THE
23 PRACTICE OF MEDICINE AND THAT NOTS 34 WAS EXACTLY THAT, THE
24 PRACTICE OF MEDICINE.
25 AND THEY REFERRED YOU TO EXHIBIT 143, THE APPEAL
685
1 FROM THAT DECISION, WITHOUT TELLING YOU THAT THAT DECISION WAS
2 UPHELD.
3 AND FURTHER IN THE DECISION, YOU CAN SEE FOR
4 YOURSELVES THAT THEY ALSO SAID, "WARNING, THE DEVICE KNOWN AS A
5 HUBBORD ELECTROMETER, OR E-METER, USED IN AUDITING, A PROCESS OF
6 SCIENTOLOGY AND DIANETICS IS NOT MEDICALLY OR SCIENTIFICALLY
7 USEFUL FOR THE DIAGNOSIS, TREATMENT OR PREVENTION OF ANY
8 DISEASE, IT IS NOT MEDICALLY OR SCIENTIFICALLY CAPABLE OF
9 IMPROVING THE HEALTH OR BODILY FUNCTIONS OF ANYONE.
10 AND WHEN MR. HENSON READ NOTS 34, HAVING BEEN
11 FAMILIAR WITH JUDGE GESELL'S DECISION, YOU HEARD HIS TESTIMONY.
12 HE CONCLUDED THAT SCIENTOLOGY WAS NOT ONLY ENGAGED IN THE
13 PRACTICE OF MEDICINE UNLAWFULLY, CONTRARY TO THE LAWS OF THE
14 STATE, IN VIOLATION, BLATANT VIOLATION OF AN INJUNCTION ISSUED
15 BY A COURT SUCH AS THIS, BUT IT WAS ACTING DANGEROUSLY IN DOING
16 SO, BECAUSE EVERYTHING HE KNEW AND READ HAD LED HIM TO CONCLUDE
17 THAT IF PEOPLE DID NOT RECEIVE MEDICAL ATTENTION, THEY COULD
18 DIE.
19 AND SO HE ACTED IN THAT BELIEF AND HE DOWNLOADED
20 NOTS 34 FROM THE INTERNET, AND YOU HEARD HIM SAY IT WAS UP THERE
21 AT LEAST 20 TIMES. HE DIDN'T PUT IT UP THERE. IT WAS ALREADY
22 THERE. IT WAS EVEN ON A SCIENTOLOGY SITE, AS HE TESTIFIED TO.
23 AND HE TESTIFIED THAT OTHER PEOPLE HAD NOT BEEN SUED
24 TO THE BEST OF HIS KNOWLEDGE, OTHER THAN MR. ERLICH AND
25 MR. WARD.
686
1 YOU HEARD HIM TESTIFY HE DIDN'T MAKE MONEY FROM
2 DOING THIS. HE DID IT TO WARN THE PUBLIC, AND HE COMMENTED ON
3 ITS ENTIRETY -- HE SUBMITTED IT IN ITS ENTIRETY TO THE PUBLIC
4 BECAUSE HE BELIEVED THAT WAS THE ONLY WAY IT COULD BE
5 UNDERSTOOD.
6 AND YOU HEARD HIM TESTIFY THAT IT HAD TAKEN HIM
7 MONTHS AND MONTHS TO EVEN REACH THAT LEVEL OF UNDERSTANDING
8 BECAUSE OF THE JARGON, HE SAID, THAT SCIENTOLOGY USES.
9 HE TOLD YOU THAT NOT ONLY HAD HE FOUND THIS
10 SO-CALLED UNPUBLISHED WORK ON THE INTERNET, BUT HE HAD FOUND IT,
11 FOUND OT I THROUGH OT VII, ALSO SO-CALLED SECRET UNPUBLISHED
12 MATERIALS, THAT HE HAD FOUND ALL OF THE NOTS MATERIALS UP THERE,
13 IN ADDITION TO NOTS 34.
14 AND I SUBMIT, LADIES AND GENTLEMEN, THAT A
15 REASONABLE PERSON COULD CONCLUDE THAT THOSE WORKS WERE NO LONGER
16 UNPUBLISHED DESPITE THE CLAIMS OF MS. KOBRIN TO THE CONTRARY.
17 AND HE TOLD YOU WHAT EVIDENCE HE HAD FOR BELIEVING
18 THAT SCIENTOLOGY WAS ENGAGED IN THE UNLAWFUL PRACTICE OF
19 MEDICINE. HE REFERRED TO BOOKS, HE REFERRED TO POSTINGS, HE HAD
20 SPOKEN WITH DENNIS ERLICH, WHO HE TOLD YOU WAS FORMERLY A HIGH
21 RANKING MEMBER OF THE CHURCH OF SCIENTOLOGY. HE HAD SPOKEN WITH
22 MR. WARD.
23 BUT I BELIEVE, LADIES AND GENTLEMEN, THAT THE MOST
24 TELLING THING THAT CAN LEAD YOU TO CONCLUDE THAT HE WAS ACTING
25 REASONABLY, AND THEREFORE NOT WILLFULLY, IS THE DOCUMENT ITSELF,
687
1 IS THE DOCUMENT ITSELF.
2 NOW, DURING HIS OPENING STATEMENT, AND AGAIN TODAY,
3 MR. ROSEN SAID THIS CASE IS LIKE NO OTHER COPYRIGHT CASE YOU
4 WILL EVER HEAR OF. AND I SUBMIT, LADIES AND GENTLEMEN, THE
5 REASON IS BECAUSE MR. HENSON IS NOT YOUR TYPICAL INFRINGER,
6 USING MR. ROSEN'S OWN WORDS, AND ON THAT I AGREE.
7 MR. HENSON IS AN HONORABLE INFRINGER. AN HONORABLE
8 INFRINGER IN THE GREAT AMERICAN TRADITION OF CIVIL DISOBEDIENCE,
9 BECAUSE HE BELIEVED THAT THERE WAS A HIGHER LAW THAN COPYRIGHT.
10 HE BELIEVED THAT THERE WAS A MORAL LAW THAT
11 SUPERIMPOSED ITSELF OVER ALL MANMADE LAWS, AND IN THAT BELIEF,
12 HE SOUGHT GUIDANCE FROM JUDGE WHYTE, UNREASONABLY PERHAPS, BUT
13 IN HIS OWN MIND, HE EXPECTED JUDGE WHYTE TO SAY SOMETHING IF HE
14 WAS NOT BOUND, IF HE WAS BOUND BY THE INJUNCTION AGAINST
15 MR. WARD.
16 HE KNEW WHAT DEAN ROSCO POUND, ONE OF OUR GREAT
17 JURISTS, HAD WRITTEN, AND HE BELIEVED THAT THERE COMES A TIME IN
18 THE DEALINGS OF MAN THAT IT IS RIGHT AND PROPER TO DO WRONG, AND
19 HE PUTS THAT RIGHT IN THE FACE OF THE DOCUMENT ITSELF.
20 AND HE SAYS HE EXPECTS THAT THE CHURCH IS GOING TO
21 COME AFTER HIM FOR IT, AND YOU CAN SEE THAT FOR YOURSELF. YOU
22 CAN READ THAT FOR YOURSELF, THE REASONS WHY HE POSTED IT, RIGHT
23 THERE IN THE DOCUMENT.
24 YES, THIS IS A UNIQUE CASE, AND YOU SHOULD TREAT IT
25 UNIQUELY. YOU SHOULD TREAT IT UNIQUELY BY OFFERING, SORRY, BY
688
1 AWARDING THE MINIMUM DAMAGES PROVIDED BY LAW.
2 MR. HENSON, SORRY, MR. ROSEN HAS TALKED AT LENGTH
3 ABOUT DETERRENCE, ABOUT DETERRENCE. MR. HENSON TESTIFIED ONLY
4 AN HOUR OR TWO AGO THAT HE DIDN'T THINK HE WOULD EVER POST A
5 CHURCH OF SCIENTOLOGY COPYRIGHTED DOCUMENT AGAIN BECAUSE IT WAS
6 TOO MUCH TROUBLE. TWO YEARS OF LITIGATION AND ALL OF THE COSTS
7 AND ALL OF THE COSTS.
8 AND YOU CAN INFER FROM HIS EVIDENCE THAT HE DID NOT
9 CONSULT AN ATTORNEY BECAUSE ATTORNEYS ARE EXPENSIVE, THAT HE IS
10 A MAN OF LIMITED MEANS, AND $100,000 --
11 MR. ROSEN: OBJECTION, YOUR HONOR. NO BASIS IN THE
12 RECORD TO CLAIM LIMITED MEANS.
13 THE COURT: THERE'S NO BASIS ON THE RECORD FOR
14 ANYTHING WITH RESPECT TO MR. HENSON'S FINANCIAL CONDITION. YOU
15 DIDN'T OFFER ANYTHING, MR. BERRY DIDN'T OFFER ANYTHING. YOU
16 BOTH COMMENTED ON IT. THE JURY CAN DRAW WHATEVER CONCLUSIONS IT
17 FEELS AS TO WHAT'S AN APPROPRIATE MEASURE OF DAMAGES, BUT THERE
18 WAS NO EVIDENCE OFFERED BY EITHER SIDE WITH RESPECT TO FINANCIAL
19 ABILITY.
20 GO AHEAD.
21 MR. BERRY: AND YOU HEARD HIM TESTIFY THAT HE DIDN'T
22 THINK IT WOULD DETER OTHERS, WHETHER OR NOT THEY WERE ACTING IN
23 THE PUBLIC INTEREST, SUCH AS HE -- BECAUSE OTHERS ARE OUTSIDE OF
24 THE JURISDICTION. HE HADN'T EVEN POSTED IT HIMSELF FOR THE
25 FIRST TIME. HE TOOK IT DOWN FROM THE INTERNET, READ IT, AND PUT
689
1 IT BACK WHERE HE FOUND IT.
2 THE CASE CRIES OUT FOR, AT MOST, MINIMUM DAMAGES,
3 JUSTICE CRIES OUT, AT MOST, FOR MINIMUM DAMAGES. THE EVIDENCE
4 CRIES OUT, AT MOST, FOR MINIMUM DAMAGES.
5 IN MY OPENING STATEMENT, I TOLD YOU, LADIES AND
6 GENTLEMEN, THAT ONE OF THE THINGS YOU COULD BRING INTO THIS
7 COURTROOM WAS YOUR COMMON SENSE AND YOUR LIFE EXPERIENCE, AND I
8 NOW ASK YOU TO USE THAT COMMON SENSE AND LIFE EXPERIENCE IN
9 ALLOCATING DAMAGES.
10 NOW, I ASK YOU TO ALSO CONSIDER WHAT THE COURTS
11 HAVE STATED ABOUT THIS SORT OF CONDUCT. IN ONE DECISION, A
12 JUDGE SAID "THOSE WHO SEEK CONSTITUTIONAL PROTECTIONS FOR THEIR
13 PARTICIPATION IN AN ESTABLISHMENT" --
14 MR. ROSEN: YOUR HONOR, I DON'T THINK THIS IS
15 APPROPRIATE ARGUMENT.
16 THE COURT: THERE'S NO EVIDENCE OF WHAT OTHER COURT
17 DECISIONS HAVE SAID, SO I WOULD ASK YOU TO STAY AWAY FROM THAT
18 CASE.
19 MR. BERRY: I AM OFFERING IT AS A PIECE OF WRITING
20 SUCH AS I WOULD --
21 THE COURT: BUT IT'S -- THERE'S NO EVIDENCE AS TO
22 WHETHER THOSE WRITINGS SAY THAT. YOU'RE NOT A WITNESS. YOU CAN
23 CERTAINLY MAKE ARGUMENT, BUT TO REFER TO WRITINGS IN OTHER COURT
24 CASES IS INAPPROPRIATE.
25 MR. BERRY: LADIES AND GENTLEMEN, IT IS CLEAR THAT
690
1 NO RELIGION CAN HIDE BEHIND COPYRIGHTS TO ENGAGE IN UNLAWFUL
2 ACTIVITY. THAT WAS MR. HENSON'S BELIEF AT THE TIME.
3 AND I WANT TO LEAVE YOU WITH A FEW FINAL THOUGHTS,
4 BECAUSE UNLIKE MR. ROSEN, THIS IS THE LAST YOU'RE GOING TO HEAR
5 OF ME, AT LEAST IN THIS COURTROOM. HE IS THE PLAINTIFF, HE
6 GETS -- HE IS THE PLAINTIFF'S COUNSEL, HE GETS TO SPEAK TWICE.
7 ON MARCH THE 5TH, 1770, IN THE NAME OF LAW ORDER AND
8 GOOD GOVERNMENT, FIVE YOUNG AMERICANS WERE MURDERED BY BRITISH
9 RED COATS OF THE 29TH BRITISH REGIMENT. THESE FIVE YOUNG MEN
10 WERE GOOD CITIZENS, TRYING TO WARN THE PEOPLE OF WHAT THEY
11 BELIEVED WAS WRONG, AND THE GOOD TOWNSFOLK OF THE TIME REACTED
12 IN THE SPIRIT OF THE FOUNDERS OF OUR NATION WHO WERE LIVING AT
13 THE TIME, AND THEY CHRISTENED A TREE IN THE MIDDLE OF TOWN.
14 MR. ROSEN: YOUR HONOR, IS MR. BERRY NOW TESTIFYING?
15 THE COURT: NO. THIS IS -- I'M GOING TO ALLOW HIS
16 ARGUMENT.
17 GO AHEAD.
18 MR. BERRY: AND THEY CHRISTENED A TREE IN THE MIDDLE
19 OF THE TOWN THE LIBERTY TREE, AT THE MAIN INTERSECTION, AND ON
20 THAT TREE, THE GOOD TOWNSFOLK, IN DEFIANCE OF THE LAWS OF THE
21 TIMES, INCLUDING COPYRIGHT LAWS, WHICH EXISTED EVEN THEN, POSTED
22 WARNS OF IMPENDING DANGER TO THE GOOD CITIZENS OF THE VILLAGE.
23 WELL, LADIES AND GENTLEMEN, THE INTERNET IS OUR
24 LIBERTY TREE OF TODAY. THE INTERNET IS LIKE A VILLAGE, AND IT
25 STANDS AT THE CROSSROADS OF COMMUNICATION AND INFORMATION. IT
691
1 STANDS AT THE CROSSROADS OF THE WORLD.
2 AND ON THIS INTERNET, THE LIBERTY TREE OF THE '90'S,
3 MR. HENSON DID WHAT HE BELIEVED WAS MORALLY RIGHT. HE WARNED
4 THE WORLD OF IMPENDING DANGER. THE DANGER THAT FLOWS, LIKE
5 BLOOD, FROM THE UNLICENSED PRACTICE OF MEDICINE.
6 AND THAT DANGER, HE BELIEVED, FLOWED FROM NOTS 34,
7 AND THAT BELIEF WAS HELD GENUINELY, IN GOOD FAITH, AND
8 REASONABLY. AND HE DID IT IN DEFIANCE OF CLAIMED COPYRIGHTS
9 BECAUSE IT WAS THE RIGHT AND MORAL THING TO DO.
10 NOW, DURING THE HOLOCAUST ANN FRANK WROTE, "WHILE
11 MILLIONS ARE BEING MURDERED, I STILL BELIEVE THAT SOMEWHERE
12 THERE ARE STILL MEN OF GOOD WILL."
13 I SUBMIT, LADIES AND GENTLEMEN, THAT MR. HENSON IS
14 SUCH A MAN, A MAN WHO NAILED A POSTER ON THE LIBERTY OF OUR
15 TIME.
16 AND ONE LAST THING, ONE LAST THING BEFORE I SIT DOWN
17 AND YOU HEAR AGAIN FROM MR. ROSEN WHO, AS I SAID, HAS THE LAST
18 SAY, WHEN HE IS HAVING HIS LAST SAY, I ASK YOU TO REMEMBER THAT
19 I CANNOT RESPOND. SO WHEN HE IS MAKING STATEMENTS IN A MOMENT
20 OR TWO, I ASK YOU TO JUST THINK, WHAT WOULD MR. HENSON SAY TO
21 THAT? WHAT WOULD MR. BERRY SAY TO THAT? WHAT WOULD OTHER MEN
22 OF GOOD WILL AND GOOD INTENTION SAY TO THAT?
23 LADIES AND GENTLEMEN OF THE JURY, I THANK YOU FOR
24 LISTENING TO ATTENTIVELY DURING THE EVIDENCE. I KNOW YOU'LL DO
25 YOUR DUTY AS YOU SEE FIT, AND I ASK YOU TO AWARD NO MORE THAN
692
1 MINIMUM DAMAGES. THE CASE CRIES OUT FOR SUCH AN AWARD.
2 THANK YOU.
3 THE COURT: ALL RIGHT. MR. ROSEN, ANY FINAL
4 COMMENTS?
5 MR. ROSEN: THANK YOU, YOUR HONOR.
6 I'M GOING TO SPEND JUST A COUPLE OF MINUTES
7 RESPONDING QUICKLY TO SOME THINGS MR. BERRY SAID.
8 I TOLD YOU BEFORE THAT THE DEFENDANT'S POSITION IN
9 THIS CASE WAS TO TRY TO PUT THE VICTIM ON TRIAL. ONE OF THE
10 FIRST THINGS OUT OF COUNSEL'S MOUTH WAS THE CONSTITUTION GIVES
11 US THE RIGHT TO BELIEVE IN A RIDICULOUS RELIGION. CONTINUING
12 EVEN TO THIS DAY, AT THIS POINT IN THIS TRIAL, THESE COMMENTS
13 DEMEANING THE RELIGION, BECAUSE IT'S NOT YOUR RELIGION.
14 MR. BERRY HAS THE TEMERITY TO INVOKE THE NAMES AND
15 THE MEMORIES OF PEOPLE LIKE JFK, MARTIN LUTHER KING AND GEORGE
16 WASHINGTON IN THE SAME SENTENCE WITH HIS CLIENT. IS HIS
17 CLIENT -- DO THESE PEOPLE GO AROUND CALLING WOMEN WHO ARE
18 ATTORNEYS WHO ARE REPRESENTING THEIR CLIENTS WHORES? DO THEY
19 SAY TO ME, TO MY FACE, YOU'RE A PROSTITUTE IF YOU REPRESENT
20 SCIENTOLOGY?
21 THESE ARE WORDS THAT JOHN F. KENNEDY SAID? THESE
22 ARE WORDS THAT MARTIN LUTHER KING SAID? MR. HENSON AS THE GREAT
23 AMERICAN HERO?
24 MR. BERRY COMMENTED THAT MR. MCSHANE DIDN'T TESTIFY.
25 OF COURSE HE DIDN'T TESTIFY. AS THE JUDGE EXPLAINED TO YOU, THE
693
1 ISSUE IS WHAT WAS IN MR. HENSON'S HEAD, WHAT DID HE BELIEVE,
2 WHAT DO YOU FIND HE BELIEVED AND WHETHER IT WAS REASONABLE?
3 CAN MR. MCSHANE TESTIFY TO WHAT'S IN MR. HENSON'S
4 HEAD? OF COURSE NOT. ONLY MR. HENSON CAN TESTIFY AS TO WHAT
5 WAS HIS INTENTION, WHAT WAS IN HIS MIND, AND YOU ARE THE JUDGE
6 OF WHETHER OR NOT HE TESTIFIED TRUTHFULLY.
7 I COULD CALL 100 WITNESSES. WOULD THEY HELP TO YOU
8 FIND THE TRUTH AS TO WHAT WAS IN MR. HENSON'S HEAD? OF COURSE
9 NOT. THE ISSUE IS MR. HENSON'S BELIEF.
10 MR. BERRY SAID NOTS 34 IS USED TO TREAT ILLNESS. OF
11 COURSE IT IS. IT IS USED TO TREAT ILLNESS JUST LIKE PRAYER IS
12 USED TO TREAT ILLNESS, JUST LIKE IN EVERY RELIGION THERE ARE
13 RIGHTS THAT ARE USED FOR ILLNESS.
14 ARE THEY USED TO THE EXCLUSION OF MEDICAL
15 TREATMENT? OF COURSE NOT, AND MR. HENSON CONCEDED THAT.
16 THE E-METER, MR. BERRY SAID, WELL THE USE OF THE
17 E-METER MAKES IT CRIMINAL.
18 WE SHOWED YOU THE CASE. AN E-METER IS CRIMINAL IF
19 YOU SELL IT AND YOU PROMOTE IT AS A MEDICAL DEVICE.
20 IT IS NO MORE CRIMINAL THAN IF YOU PROMOTE PRAYER AS
21 A MEANS OF HEALING, SO LONG AS YOU USE IT IN A RELIGIOUS CONTEXT
22 AND IT HAS A WARNING ON IT.
23 MR. HENSON DIDN'T TELL YOU THE WARNING IS NOT THERE.
24 THIS IS AN AFTER THE FACT WAY, DEFENSE IF YOU WILL, BY
25 MR. HENSON TO TRY TO COVER UP HIS CONDUCT, TO TRY TO COVER UP
694
1 THE RELIGIOUS BIGOTRY YOU HEARD FROM THIS MAN HIMSELF.
2 (CHANGE IN REPORTERS.)
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
695
1 MR. ROSEN: FAIR USE. MR. BERRY SAYS YOU
2 CAN CONSIDER THE FAIR USE FACTORS. LISTEN VERY
3 CAREFULLY, AS I KNOW YOU WILL -- WHEN I'M DONE AND
4 THE JUDGE INSTRUCTS YOU ON THE LAW, ATTORNEYS HAVE
5 THE RIGHT TO IN GOOD FAITH COMMENT ON WHAT THEY
6 BELIEVE THE LAW TO BE, IN GOOD FAITH. LISTEN TO
7 WHAT THE JUDGE SAYS BECAUSE IF THE LAW, AS HE GIVES
8 IT TO YOU, IS ANY DIFFERENT THAN WHAT MR. BERRY
9 JUST SAID, YOU MUST IGNORE MR. BERRY'S COMMENTS.
10 HE WAS NOT THE ONE WHO INSTRUCTS YOU ON THE LAW,
11 THE JUDGE IS.
12 AND BY THE WAY, THAT GOES TO ME, TOO. IF
13 I EVER MADE A MISTAKE HERE AND MISSTATED THE LAW,
14 YOU WILL PLEASE DISREGARD WHAT I SAY THE LAW IS AND
15 LISTEN TO WHAT THE JUDGE SAYS. HE IS THE FINAL
16 DETERMINER OF WHAT THAT LAW IS. I THINK YOU WILL
17 FIND THAT THAT IS NOT THE CASE. I HOPE I DID NOT
18 MAKE A MISTAKE.
19 MR. HENSON'S COUNSEL SAYS WE GERRY-RIGGED
20 SOME VIDEOTAPE. I MEAN, WE TOOK THIS AND HE WAS
21 CHANGING T-SHIRTS. YEAH, WE TOOK THE EXCERPTS TO
22 ARRANGE THEM IN DIFFERENT PLACES BY SUBJECTS TO
23 TALK ABOUT FUN, TO TALK ABOUT RECREATION, TO TALK
24 ABOUT STATUS, BUT YOU KNOW WHAT, MR. HENSON HAD THE
25 RIGHT TO SHOW YOU EVERY SINGLE MINUTE OF THAT
696
1 DEPOSITION. IF HE THOUGHT THAT THIS PORTRAYED HIM
2 IN A FULL LIGHT, IF HE THOUGHT THAT THIS WAS
3 SOMEHOW RIGGED BY US TO MAKE IT APPEAR THAT HE WAS
4 SAYING THINGS THAT HE DIDN'T REALLY MEAN, HE HAD
5 EVERY RIGHT TO PRESENT TO YOU THE ENTIRE DEPOSITION
6 VIDEOTAPES, IN FACT, WE MARKED THEM IN EVIDENCE IF
7 THEY WANTED TO USE THEM.
8 WE GAVE THEM AT THE JUDGE'S REQUEST. WE
9 GAVE THEM TO MR. BERRY, AND HE NEVER DID IT. YOU
10 KNOW, IT'S EASY TO STAND UP HERE AND TELL YOU, AS
11 MR. BERRY HAS, "BOY, IF YOU WOULD HAVE SEEN THE
12 WHOLE THING OF THAT, YOU WOULD HAVE SEEN HOW
13 TERRIBLE THIS IS, HOW THESE EXCERPTS ARE UNFAIR."
14 IT'S EASY TO STAND HERE AND TELL YOU "THE PROOF IS
15 IN THE PUDDING." IF HE THOUGHT IT WAS UNFAIR, HE
16 SHOULD HAVE PLAYED THEM. HE HAD EVERY OPPORTUNITY.
17 THIS IS A TWO-WAY TRIAL. IT'S NOT A PLAINTIFF'S
18 TRIAL. THE PLAINTIFF AND THE DEFENDANT. THE
19 DEFENDANT HAS EVERY OPPORTUNITY AND JUST AS MUCH
20 OPPORTUNITY TO PRESENT EVIDENCE AS THE PLAINTIFF
21 DOES.
22 MR. BERRY SAID SOMETHING, AND I WROTE
23 THIS DOWN. I HOPE I GOT IT RIGHT. "YOU HAVE HEARD
24 TWO SIDES OF THE STORY." I COULDN'T AGREE MORE
25 EXCEPT THE ONLY DIFFERENCE IS YOU HEARD THEM BOTH
697
1 OUT OF THE MOUTH OF THE SAME PERSON. THIS IS NOT
2 THE AUTOMOBILE ACCIDENT WHERE YOU HAVE TWO
3 DIFFERENT VERSIONS OF WHAT HAPPENED. YOU HEARD TWO
4 SIDES OF THE STORY AND YOU HEARD THEM BOTH OUT OF
5 ONE PERSON'S MOUTH.
6 NOTS 34, YOU HAVE GONE OVER IT AND MR.
7 BERRY HAS INDICATED HOW MANY TIMES CERTAIN WORDS WE
8 USED. I'M NOT GOING TO REPEAT THAT, BUT I WANT YOU
9 TO UNDERSTAND SOMETHING, IF I MAY, NOTS 34 IS AS
10 CONCEDED A RELIGIOUS ARTICLE, A RELIGIOUS WORK, AS
11 MR. BERRY ADMITS. IT DOESN'T MAKE ANY DIFFERENCE
12 WHAT THE WORDS ARE. IT DOESN'T MAKE ANY DIFFERENCE
13 HOW LONG IT IS.
14 REMEMBER I TOLD YOU AT THE BEGINNING,
15 COPYRIGHT IS NOT LIKE THE OSCARS. IT DOESN'T
16 MATTER IF YOU LIKE IT OR IF IT IS A GOOD MOVIE OR
17 BAD MOVIE. THAT IS NOT THE ISSUE. THERE ARE A
18 COUPLE OF PAGES OF NOTS 34 WHICH ARE RELIGIOUS
19 WORKS, AS MR. HENSON HAS CONCEDED. SOME OF THE
20 GREATEST DOCUMENTS EVER WRITTEN HAVEN'T BEEN TWO
21 PAGES, THE DECLARATION OF INDEPENDENCE, THE
22 EMANCIPATION PROCLAMATION, SOME POEMS. THE ISSUE
23 IS NOT THE QUALITY OR CONTENT, WE ARE NOT THE PANEL
24 TO DECIDE GOOD OR BAD, QUALITY OR QUANTITY OF THE
25 WORK, REGARDLESS OF WHAT MR. BERRY SAYS ABOUT THE
698
1 WORDS.
2 NOTS 34 MR. BERRY SAYS IS NO LONGER
3 UNPUBLISHED. I DON'T KNOW WHAT THAT MEANS. YOU
4 CAN HAVE A COPYRIGHT AND A WORK WHICH IS PUBLISHED,
5 YOU CAN HAVE A WORK AND A COPYRIGHT WHICH IS
6 UNPUBLISHED. YOU CAN A GET A COPYRIGHT IN A WORK
7 AND THREE YEARS LATER PUBLISH IT. IT DOESN'T
8 DESTROY THE COPYRIGHT. COPYRIGHTED WORK IS
9 COPYRIGHTED WHETHER IT IS PUBLISHED OR UNPUBLISHED,
10 AND TO THE EXTENT THAT MR. BERRY WAS ALLUDING TO
11 WHAT I SAID, I TOLD YOU, YOU CAN CONSIDER AND THE
12 JUDGE WILL TELL YOU THE NATURE OF THE WORK
13 INFRINGED, THAT MEANS IT IS UNPUBLISHED AND IT IS
14 IMPORTANT IN ONLY ONE RESPECT, STATUTORY DAMAGES.
15 THE AUTHOR DID NOT WANT IT PUBLISHED. MR. HENSON
16 DID THAT.
17 MR. ERLICH AND MR. WARD, YOU'VE HEARD MR.
18 BERRY SAY THAT HIS CLIENT REASONABLY BELIEVED IN
19 CERTAIN THINGS BECAUSE HE SPOKE TO MR. ERLICH AND
20 MR. WARD. WHERE ARE THEY? AGAIN, IT'S EASY FOR
21 MR. HENSON TO SIT ON THIS WITNESS STAND AND SAY, I
22 REASONABLY BELIEVE SOMETHING BECAUSE MR. ERLICH
23 TOLD ME OR MR. WARD TOLD ME.
24 BUT THE PROOF THAT YOU HAVE A RIGHT TO
25 DEMAND IS WHERE ARE THEY? WHY DOESN'T THE
699
1 DEFENDANT CALL A WITNESS? WHY DOESN'T THE
2 DEFENDANT CALL MR. WARD OR MR. ERLICH AND SAY, YES,
3 THAT'S WHAT I TOLD MR. HENSON. SAME THING WITH THE
4 POSTINGS ON THE ARS, VERY EASY, VERY EASY FOR MR.
5 HENSON TO SAY, GEE, I'M GOING TO THINK BACK WHAT I
6 SAID ON ARS TWO YEARS AGO, BUT I'M NOT GOING TO
7 SHOW YOU A SINGLE ONE. I WANT YOU TO TRUST ME THAT
8 I READ THIS BEFORE.
9 CIVIL DISOBEDIENCE. IF ONE WERE TO
10 ACCEPT MR. BERRY'S ARGUMENT, MR. HENSON IS TODAY'S
11 LIBERTY TREE, HE IS THE MASTER OF CIVIL
12 DISOBEDIENCE, THIS MUST BE A DIFFERENT MR. HENSON
13 WHO YOU WATCH SAYING, "I DID THIS FOR FUN. I DID
14 THIS FOR RECREATION." WHO HAD THE DISRESPECT TO A
15 FEDERAL COURT, FORGET SCIENTOLOGY, OF SAYING IN A
16 DOCUMENT, "I CAN'T RESPOND TO ALL OF THIS, I'M ONLY
17 GOING TO RESPOND AS MUCH AS MY ENTERTAINMENT BUDGET
18 ALLOWS." THIS IS THE RESPECT OF A MAN FOR A
19 FEDERAL COURT, WHETHER YOU AGREE OR DISAGREE WITH
20 ANY FEDERAL JUDGE -- AND I CERTAINLY HAVE DISAGREED
21 WITH SEVERAL IN MY TIME -- THE OFFICE OF THE
22 FEDERAL COURT OF THE UNITED STATES IS TO BE
23 RESPECTED. THIS IS A MAN WHO HAS NO RESPECT FOR
24 ANYTHING.
25 MR. HENSON SAYS -- EXCUSE ME. MR. BERRY
700
1 SAYS MR. HENSON IS NOT GOING TO DO THIS AGAIN. HE
2 SAID, BOY, I WOULDN'T POST ANOTHER RTC DOCUMENT
3 BECAUSE OF TWO YEARS OF LITIGATION AND ALL OF THIS.
4 THAT IS NOT WHAT MR. HENSON SAID. I TOLD YOU THE
5 VERY LAST THING AND IF YOU WANT -- IF YOUR NOTES
6 DON'T REFLECT IT AND IT'S IMPORTANT TO YOU, YOU CAN
7 SPEAK WITH EACH OTHER ABOUT IT. OF COURSE, THE
8 VERY LAST THING THAT MR. HENSON SAYS WAS SAID IN
9 HIS EXAMINATION WAS I WON'T DO IT AGAIN IN MY OWN
10 NAME.
11 MR. BERRY: OBJECTION, YOUR HONOR,
12 MISSTATES THE EVIDENCE. HE SAID HE WOULDN'T DO IT
13 OPENLY.
14 MR. ROSEN: OKAY. HE WON'T DO IT OPENLY.
15 I'LL ACCEPT THAT. I'LL DO IT SECRETLY. I'LL WEAR
16 A MASK. I'M NOT GOING TO ROB THAT STORE WITH MY
17 FACE EXPOSED. BOY, I FIGURED OUT HOW TO DO IT
18 BETTER THIS TIME. I'M GOING TO WEAR A MASK SO YOU
19 CAN'T FIGURE OUT WHO I AM.
20 MR. HENSON IS A MAN OF GOOD WILL, THAT'S
21 WHAT MR. BERRY WANTS YOU TO BELIEVE. YOU HAVE
22 HEARD THE EVIDENCE, YOU WILL JUDGE WHETHER MR.
23 HENSON IS A MAN OF GOOD WILL, OR WHETHER MR. HENSON
24 JUST PLAYS TO A DIFFERENT TUNE THAN OTHER PEOPLE.
25 THANK YOU VERY MUCH.
701
1 THE COURT: ALL RIGHT. LADIES AND
2 GENTLEMEN, THAT CONCLUDES THE EVIDENCE AND THE
3 ARGUMENTS OF THE ATTORNEYS. I WILL NOW READ THE
4 INSTRUCTIONS TO YOU. I HAVE COPIES, AGAIN, FOR YOU
5 SO I'LL ASK MS. YIN TO HAND THEM OUT TO YOU.
6 MEMBERS OF THE JURY, NOW THAT YOU HAVE
7 HEARD ALL OF THE EVIDENCE AND THE ARGUMENTS OF THE
8 ATTORNEYS, IT IS MY DUTY TO INSTRUCT YOU ON THE LAW
9 WHICH APPLIES TO THIS CASE. A COPY OF THESE
10 INSTRUCTIONS HAVE BEEN GIVEN TO YOU FOR YOU TO
11 CONSULT IN THE JURY ROOM, IF YOU FIND IT NECESSARY.
12 IT IS YOUR DUTY TO FIND THE FACTS FROM
13 ALL OF THE EVIDENCE IN THE CASE. TO THOSE FACTS
14 YOU WILL APPLY THE LAW AS I GIVE IT TO YOU. YOU
15 MUST FOLLOW THE LAW AS I GIVE IT TO YOU WHETHER YOU
16 AGREE WITH IT OR NOT. YOU MUST NOT BE INFLUENCED
17 BY ANY PERSONAL LIKES, DISLIKES, OPINIONS,
18 PREJUDICES, OR SYMPATHY. THAT MEANS THAT YOU MUST
19 DECIDE THE CASE SOLELY ON THE EVIDENCE BEFORE YOU.
20 YOU WILL RECALL THAT YOU TOOK AN OATH PROMISING TO
21 DO SO AT THE BEGINNING OF THE CASE.
22 IN FOLLOWING MY INSTRUCTIONS, YOU MUST
23 FOLLOW ALL OF THEM AND NOT SINGLE OUT SOME AND
24 IGNORE OTHERS; THEY ARE ALL EQUALLY IMPORTANT. YOU
25 MUST NOT READ INTO THESE INSTRUCTIONS OR INTO
702
1 ANYTHING THE COURT MAY HAVE SAID OR DONE ANY
2 SUGGESTION AS TO WHAT VERDICT YOU SHOULD RETURN.
3 THAT IS A MATTER ENTIRELY UP TO YOU.
4 YOU MAY USE NOTES TAKEN DURING TRIAL TO
5 ASSIST YOUR MEMORY. NOTES, HOWEVER, SHOULD NOT BE
6 SUBSTITUTED FOR YOUR MEMORY, AND YOU SHOULD NOT BE
7 OVERLY INFLUENCED BY THE NOTES.
8 THE EVIDENCE FROM WHICH YOU ARE TO DECIDE
9 WHAT THE FACTS ARE CONSISTS OF THE SWORN TESTIMONY
10 OF WITNESSES ON BOTH DIRECT AND CROSS-EXAMINATION,
11 REGARDLESS OF WHO CALLED THE WITNESS, OBVIOUSLY IN
12 THIS CASE WE JUST HAVE THE ONE WITNESS. THE
13 EXHIBITS WHICH HAVE BEEN RECEIVED INTO EVIDENCE AND
14 ANY FACTS TO WHICH ALL OF THE LAWYERS HAVE AGREED
15 OR STIPULATED.
16 IN REACHING YOUR VERDICT YOU MAY CONSIDER
17 ONLY THE TESTIMONY AND EXHIBITS RECEIVED INTO
18 EVIDENCE. CERTAIN THINGS ARE NOT EVIDENCE, AND YOU
19 MUST NOT CONSIDER THEM IN DECIDING WHAT THE FACTS
20 ARE. I WILL LIST THEM FOR YOU.
21 ONE, ARGUMENTS AND STATEMENTS BY LAWYERS
22 ARE NOT EVIDENCE. THE LAWYERS ARE NOT WITNESSES.
23 WHAT THEY HAVE SAID IN THEIR OPENING STATEMENTS,
24 CLOSING ARGUMENTS, AND AT OTHER TIMES IS INTENDED
25 TO HELP YOU INTERPRET THE EVIDENCE, BUT IT IS NOT
703
1 EVIDENCE. IF THE FACTS AS YOU REMEMBER THEM DIFFER
2 FROM THE WAY THE LAWYERS HAVE STATED THEM, YOUR
3 MEMORY OF THEM CONTROLS.
4 TWO, QUESTIONS AND OBJECTIONS BY LAWYERS
5 ARE NOT EVIDENCE. ATTORNEYS HAVE A DUTY TO THEIR
6 CLIENTS TO OBJECT WHEN THEY BELIEVE A QUESTION IS
7 IMPROPER UNDER THE RULES OF EVIDENCE. YOU SHOULD
8 NOT BE INFLUENCED BY THE OBJECTION OR BY THE
9 COURT'S RULING ON IT.
10 THREE, TESTIMONY THAT HAS BEEN EXCLUDED
11 OR STRICKEN, OR THAT YOU HAVE BEEN INSTRUCTED TO
12 DISREGARD IS NOT EVIDENCE AND MUST NOT BE
13 CONSIDERED. IN ADDITION, SOME TESTIMONY AND
14 EXHIBITS HAVE BEEN RECEIVED ONLY FOR A LIMITED
15 PURPOSE, WHERE I HAVE GIVEN A LIMITING INSTRUCTION,
16 YOU MUST FOLLOW IT.
17 FOUR, ANYTHING YOU MAY HAVE SEEN OR HEARD
18 WHEN THE COURT WAS NOT IN SESSION IS NOT EVIDENCE.
19 YOU ARE TO DECIDE THE CASE SOLELY ON THE EVIDENCE
20 RECEIVED AT TRIAL.
21 EVIDENCE MAY BE DIRECT OR CIRCUMSTANTIAL.
22 DIRECT EVIDENCE IS DIRECT PROOF OF A FACT, SUCH AS
23 TESTIMONY BY A WITNESS ABOUT WHAT THE WITNESS
24 PERSONALLY SAW OR HEARD OR DID. CIRCUMSTANTIAL
25 EVIDENCE IS PROOF OF ONE OR MORE FACTS FROM WHICH
704
1 YOU COULD FIND ANOTHER FACT. YOU SHOULD CONSIDER
2 BOTH KINDS OF EVIDENCE. THE LAW MAKES NO
3 DISTINCTION BETWEEN THE WEIGHT TO BE GIVEN TO
4 EITHER DIRECT OR CIRCUMSTANTIAL EVIDENCE. IT IS
5 FOR YOU TO DECIDE HOW MUCH WEIGHT TO GIVE TO ANY
6 EVIDENCE.
7 IN DECIDING THE FACTS IN THIS CASE, YOU
8 MAY HAVE TO DECIDE WHICH TESTIMONY TO BELIEVE AND
9 WHICH TESTIMONY NOT TO BELIEVE. YOU MAY BELIEVE
10 EVERYTHING A WITNESS SAYS, OR PART OF IT, OR NONE
11 OF IT.
12 IN CONSIDERING THE TESTIMONY OF ANY
13 WITNESS, YOU MAY TAKE INTO ACCOUNT:
14 ONE, THE OPPORTUNITY AND ABILITY OF THE
15 WITNESS TO SEE OR HEAR OR KNOW THE THINGS TESTIFIED
16 TO;
17 TWO, THE WITNESS'S MEMORY;
18 THREE, THE WITNESS'S MANNER WHILE
19 TESTIFYING;
20 FOUR, THE WITNESS'S INTEREST IN THE
21 OUTCOME OF THE CASE AND ANY BIAS OR PREJUDICE;
22 FIVE, WHETHER OTHER EVIDENCE CONTRADICTED
23 THE WITNESS'S TESTIMONY;
24 SIX, THE REASONABLENESS OF THE WITNESS'S
25 TESTIMONY IN LIGHT OF ALL OF THE EVIDENCE; AND,
705
1 SEVEN, ANY OTHER FACTORS THAT BEAR ON
2 BELIEVABILITY. THE WEIGHT OF THE EVIDENCE AS TO A
3 FACT DOES NOT NECESSARILY DEPEND ON THE NUMBER OF
4 WITNESSES WHO TESTIFY.
5 THIS IS A COPYRIGHT INFRINGEMENT LAWSUIT
6 BROUGHT BY PLAINTIFF, RELIGIOUS TECHNOLOGY CENTER,
7 SOMETIMES REFERRED TO IN THIS CASE SIMPLY AS RTC
8 AGAINST THE DEFENDANT H. KEITH HENSON.
9 COPYRIGHT IS A FORM OF PROPERTY OWNERSHIP
10 KNOWN AS INTELLECTUAL PROPERTY. COPYRIGHT IS
11 DISTINCT FROM OTHER TYPES OF INTELLECTUAL PROPERTY
12 WHICH YOU MAY BE FAMILIAR SUCH AS PATENT AND
13 TRADEMARK. SPECIFICALLY, COPYRIGHT IS THE
14 PROTECTION THAT FEDERAL LAW EXTENDS TO THE AUTHOR
15 OF AN ORIGINAL WORK AGAINST THE UNAUTHORIZED
16 COPYING OR DISTRIBUTION OF THE WORK BY OTHERS. THE
17 KINDS OF WORKS THAT CAN BE PROTECTED BY COPYRIGHT
18 INCLUDE BOOKS, RELIGIOUS WRITINGS, SONGS,
19 PHOTOGRAPHS, COMPUTER PROGRAMS, PAINTINGS, MOVIES,
20 SCULPTURES AND EVEN A COUPLE LINES OF POETRY. EVEN
21 THE DIRECTIONS ON THE PACKAGE OF A CONSUMER PRODUCT
22 LIKE A BOTTLE OF NYQUIL CAN BE PROTECTED BY
23 COPYRIGHT IF THERE IS SOME DEGREE OF ORIGINALITY IN
24 THE ASSEMBLY OF THE WORDS.
25 THE OWNER OF THE COPYRIGHT HAS THE
706
1 EXCLUSIVE RIGHT TO COPY, PRINT, DISTRIBUTE, PUBLISH
2 AND DISPLAY A COPYRIGHTED WORK. THIS IS THE
3 PROTECTION THAT THE LAW GIVES TO AN AUTHOR'S
4 ORIGINAL WORK AGAINST UNAUTHORIZED COPYING OR OTHER
5 DISSEMINATION OF THE AUTHOR'S WORK BY OTHERS. IF
6 YOU HAVE RENTED A MOVIE FROM A VIDEO STORE
7 RECENTLY, YOU MAY REMEMBER THAT THERE WAS A MESSAGE
8 AT THE BEGINNING OF THE TAPE WARNING YOU NOT TO
9 MAKE A COPY OF THE MOVIE. THAT MESSAGE WAS BASED
10 ON THE PROTECTION THAT THE FEDERAL COPYRIGHT LAW
11 PROVIDES, THE SAME LAW THAT APPLIES TO THE CASE
12 HERE.
13 THE BASIS FOR COPYRIGHT PROTECTION IS
14 ACTUALLY FOUND IN THE UNITED STATES CONSTITUTION,
15 WHICH AUTHORIZED THE CONGRESS TO PROMOTE THE
16 PROGRESS OF SCIENCE AND THE USEFUL ARTS BY SECURING
17 FOR A LIMITED TIME TO AUTHORS, THE EXCLUSIVE RIGHT
18 TO THEIR WRITINGS. IN OTHER WORDS, COPYRIGHT LAW
19 IS DESIGNED TO ENCOURAGE AUTHORS TO CREATE WORKS BY
20 PROTECTING FOR A PERIOD OF TIME THEIR WORKS FROM
21 BEING COPIED OR DISTRIBUTED BY OTHERS WITHOUT THE
22 AUTHOR'S PERMISSION.
23 COPYRIGHT PROTECTION FOR A WORK DOES NOT
24 DEPEND ON ITS ARTISTIC OR LITERARY MERIT. IN OTHER
25 WORDS, A MOVIE THAT GETS TERRIBLE REVIEWS IS
707
1 DESERVING OF THE SAME EXACT DEGREE OF COPYRIGHT
2 PROTECTION AS AN OSCOR-AWARD WINNING FILM.
3 SIMILARLY, A THOUSAND PAGE NOVEL WRITTEN BY A
4 PULITZER-PRIZE WINNING AUTHOR IS ENTITLED TO THE
5 SAME AMOUNT OF COPYRIGHT PROTECTION AS A FEW LINES
6 OF POETRY WRITTEN BY A FIFTH-GRADE STUDENT. SIMPLY
7 PUT, A WORK DOES NOT HAVE TO BE ENTERTAINING OR
8 CRITICALLY ACCLAIMED IN ORDER TO BE PROTECTED BY
9 COPYRIGHT.
10 (CHANGE IN REPORTERS.)
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
708
1 THE COURT: THE PLAINTIFF IN THIS CASE, RTC, IS A
2 NONPROFIT CORPORATION THAT IS AFFILIATED WITH THE CHURCH OF
3 SCIENTOLOGY. THE SCIENTOLOGY RELIGION WAS FOUNDED BY THE LATE
4 L. RON HUBBORD, AND RTC OWNS THE SOLE AND EXCLUSIVE RIGHTS TO
5 THE COPYRIGHTS IN MANY OF MR. HUBBORD'S WRITINGS.
6 ALTHOUGH RTC IS AFFILIATED THE CHURCH OF
7 SCIENTOLOGY, THIS IS NOT A CASE ABOUT RELIGION OR RELIGIOUS
8 BELIEFS. YOU WILL NOT BE ASKED TO DECIDE ANYTHING ABOUT
9 SCIENTOLOGY OR TO APPROVE OR DISAPPROVE OF ITS BELIEFS AND
10 PRACTICES.
11 FOR YOUR PURPOSES IN DECIDING THIS CASE, IT MAKES NO
12 DIFFERENCE AT ALL WHO THE OWNER OF THE COPYRIGHTED WORK IS,
13 WHETHER IT BE RTC OR ABC OR IBM OR JOHN SMITH.
14 A RELIGIOUS ORGANIZATION, LIKE ANY BUSINESS OR OTHER
15 ORGANIZATION, CAN OWN THE COPYRIGHT IN A WORK. IN SUCH A
16 CIRCUMSTANCE, THE COPYRIGHT HAS TYPICALLY BEEN ASSIGNED OR
17 LICENSED TO THE BUSINESS OR ORGANIZATION BY THE AUTHOR OF THE
18 WORK.
19 WHEN A RELIGIOUS ORGANIZATION OWNS THE COPYRIGHT IN
20 A WORK, IT IS ENTITLED TO THE SAME DEGREE OF COPYRIGHT
21 PROTECTION AS ANY OTHER COPYRIGHT OWNER, INCLUDING THE ORIGINAL
22 AUTHOR OF THE WORK.
23 THIS CASE IS ABOUT THE COPYRIGHT IN ONE OF
24 MR. HUBBORD'S WORKS AND THE INFRINGEMENT OF THAT COPYRIGHT BY
25 DEFENDANT HENSON. EARLIER IN THIS CASE, THE COURT DETERMINED
709
1 THAT RTC IS THE OWNER OF A COPYRIGHT IN A WORK BY MR. HUBBORD
2 ENTITLED NOTS 34.
3 THE COURT ALSO DETERMINED THAT DEFENDANT HENSON
4 INFRINGED RTC'S EXCLUSIVE RIGHTS IN THIS WORK BY POSTING A COPY
5 OF THIS WORK TO THE INTERNET ON MARCH 30TH, 1996.
6 FOR THOSE OF YOU WHO MAY NOT BE FAMILIAR WITH THE
7 INTERNET, WITH INTERNET LANGUAGE, A POSTING IS ESSENTIALLY A
8 MESSAGE THAT IS PLACED ON THE INTERNET BY A COMPUTER USER FOR
9 OTHER PEOPLE TO READ.
10 BY POSTING THIS WORK, DEFENDANT HENSON UNLAWFULLY
11 COPIED AND ELECTRONICALLY DISTRIBUTED THE WORK IN VIOLATION OF
12 RTC'S RIGHTS.
13 BASED UPON THE EVIDENCE PRESENTED EARLIER, THE COURT
14 ALSO DETERMINED THAT MR. HENSON HAS NO LEGAL DEFENSE, SUCH AS
15 FAIR USE, TO HIS LIABILITY FOR THE POSTING ON MARCH 30, 1996.
16 A PERSON IS NOT LIABLE FOR THE FAIR USE OF A
17 COPYRIGHTED WORK FOR PURPOSES SUCH AS CRITICISM, COMMENT OR
18 EDUCATION.
19 THE FAIR USE DEFENSE WAS NOT AVAILABLE TO MR. HENSON
20 PRIMARILY BECAUSE HIS POSTING OF NOTS 34 WAS VERBATIM AND
21 UNACCOMPANIED BY SIGNIFICANT COMMENT ON THE CONTENTS OF THE
22 DOCUMENTS.
23 SINCE THE COURT HAS ALREADY DETERMINED THAT
24 MR. HENSON IS NOT LIABLE FOR COPYRIGHT, EXCUSE ME, SINCE THE
25 COURT HAS ALREADY DETERMINED THAT MR. HENSON IS LIABLE FOR
710
1 COPYRIGHT INFRINGEMENT, THERE ARE ONLY TWO REMAINING ISSUES FOR
2 YOU TO DECIDE.
3 FIRST, YOU WILL BE ASKED TO DECIDE WHETHER
4 MR. HENSON'S INFRINGEMENT OF RTC'S COPYRIGHT WAS WILLFUL, A TERM
5 THAT I WILL DEFINE FOR YOU LATER.
6 SECOND, YOU WILL BE ASKED TO SET THE AMOUNT OF
7 DAMAGES THAT SHOULD BE AWARDED TO RTC AGAINST MR. HENSON.
8 COPYRIGHT IS THE NAME FOR THE PROTECTION THAT THE
9 LAW EXTENDS TO AN AUTHOR OF AN ORIGINAL WORK AGAINST THE
10 UNAUTHORIZED USE OF THAT WORK BY OTHERS. THE OWNER OF A
11 COPYRIGHT HAS THE EXCLUSIVE RIGHT TO COPY, PRINT, DISTRIBUTE,
12 PUBLISH AND DISPLAY THE COPYRIGHTED WORK. THIS IS THE
13 PROTECTION THAT THE LAW GIVES AN AUTHOR'S ORIGINAL WORK AGAINST
14 THE UNAUTHORIZED COPYING OR DISTRIBUTION OF PROTECTABLE
15 EXPRESSION OF THAT WORK BY OTHERS.
16 COPYRIGHT LAW APPLIES TO UNAUTHORIZED POSTINGS ON
17 THE INTERNET IN THE SAME WAY THAT IT APPLIES TO OTHER
18 UNAUTHORIZED COPYING OR DISTRIBUTION. THE BASIS FOR THE
19 COPYRIGHT LAWS IS FOUND IN THE UNITED STATES CONSTITUTION, WHICH
20 AUTHORIZES CONGRESS TO PROMOTE THE PROGRESS OF SCIENCE AND
21 USEFUL ARTS BY SECURING FOR LIMITED TIME TO AUTHORS AND
22 INVENTORS THE EXCLUSIVE RIGHT TO THEIR RESPECTIVE WRITINGS AND
23 DISCOVERIES.
24 THE UNDERLYING PURPOSE OF COPYRIGHT LAW IS THE
25 CONVICTION THAT ENCOURAGEMENT OF INDIVIDUAL EFFORT BY PERSONAL
711
1 GAIN IS THE BEST WAY TO ADVANCE PUBLIC WELFARE THROUGH THE
2 TALENTS OF AUTHORS AND INVENTORS.
3 COPYRIGHT INFRINGEMENT IS WILLFUL WHEN IT IS DONE
4 WITH KNOWLEDGE THAT IT IS IN VIOLATION OF THE OWNER'S COPYRIGHT
5 OR WITH RECKLESS DISREGARD FOR THE COPYRIGHT OWNER'S RIGHTS.
6 EVIDENCE THAT NOTICE OF THE PLAINTIFF'S COPYRIGHT
7 HAD BEEN GIVEN TO THE DEFENDANT BEFORE HIS ACT OF INFRINGEMENT
8 OCCURRED IS ONE FACTOR IN CONSIDERING WHETHER INFRINGEMENT WAS
9 WILLFUL.
10 OTHER FACTORS THAT MAY BE CONSIDERED INCLUDE WHETHER
11 THE DEFENDANT SOUGHT THE ADVISE OF AN ATTORNEY WITH RESPECT TO
12 HIS RIGHTS BEFORE INFRINGING, AND WHETHER OR NOT THE DEFENDANT
13 REASONABLY AND IN GOOD FAITH BELIEVED THAT THE WORK WAS SUBJECT
14 TO COPYRIGHT.
15 ONE WHO HAS BEEN NOTIFIED THAT HIS CONDUCT
16 CONSTITUTES COPYRIGHT INFRINGEMENT, BUT WHO REASONABLY BELIEVES
17 THE CONTRARY, DOES NOT ACT WILLFULLY.
18 HOWEVER, ONE WHO RECKLESSLY DISREGARDS A COPYRIGHT
19 HOLDER'S RIGHTS, EVEN IF LACKING ACTUAL KNOWLEDGE OF
20 INFRINGEMENT, MAY BE CONSIDERED TO BE ACTING WILLFULLY.
21 IN CONSIDERING WHAT A PERSON KNOWS AT THE TIME HE
22 INFRINGES, YOU MAY CONSIDER WHETHER A REASONABLE PERSON WOULD
23 BELIEVE HE HAD DONE A REASONABLE INQUIRY ABOUT ANY COPYRIGHT
24 HOLDER'S RIGHTS AND WOULD CONSIDER THE SOURCES OF HIS
25 INFORMATION RELIABLE.
712
1 THE FACT THAT OTHERS MAY HAVE INFRINGED THE
2 COPYRIGHT OF A WORK, OR THAT OTHER INFRINGING COPIES OF A WORK
3 ARE POSTED OR IN EXISTENCE, DOES NOT NEGATE A FINDING OF
4 WILLFULNESS WHERE THE DEFENDANT IS AWARE OF THE COPYRIGHTED
5 STATUS OF THE WORK.
6 THE FOOD AND DRUGS ADMINISTRATION, A FEDERAL AGENCY
7 KNOWN AS THE F.D.A., HAS CERTAIN NATIONWIDE REGULATORY
8 RESPONSIBILITIES, INCLUDING REGULATORY AUTHORITY OVER THE
9 LABELING AND SALE OF MEDICAL DEVICES FOR NON-RELIGIOUS PURPOSES,
10 IN OTHER WORDS, FOR USE BY MEMBERS OF THE PUBLIC WITHOUT
11 RELIGIOUS CONTROL OR SUPERVISION.
12 HOWEVER, THE F.D.A. DOES NOT HAVE REGULATORY
13 AUTHORITY OVER BONE FIDE RELIGIOUS COUNSELING OR THE USE OF
14 RELIGIOUS SCRIPTURE, EVEN IF THE CONTENTS OF THAT COUNSELING OR
15 SCRIPTURE SEEM BIZARRE, OR TO SOME SUGGEST -- SEEM BIZARRE TO
16 SOME OR SUGGEST THE USE OF TECHNIQUES OR DEVICES NOT ACCEPTED BY
17 THOSE OUTSIDE THE RELIGION.
18 THE STATE OF CALIFORNIA REGULATES THE PRACTICE OF
19 MEDICINE WITHIN THE STATE AND REQUIRES THAT MEDICAL DOCTORS AND
20 PRACTITIONERS OBTAIN A LICENSE TO PRACTICE MEDICINE. HOWEVER,
21 THE STATE DOES NOT REGULATE OR PROHIBIT ANY KIND OF TREATMENT BY
22 PRAYER, NOR DOES IT INTERFERE WITH THE PRACTICE OF RELIGION.
23 I HAVE INSTRUCTED YOU ON THESE REGULATORY MATTERS
24 BECAUSE THERE HAS BEEN REFERENCE TO THE F.D.A. AND ALSO TO THE
25 UNAUTHORIZED PRACTICE OF MEDICINE.
713
1 HOWEVER, THIS CASE IS NOT ABOUT WHETHER THE PRACTICE
2 OF SCIENTOLOGY CAN CURE ANY PHYSICAL AILMENTS OR THE WISDOM OF
3 THE BELIEFS OF SCIENTOLOGISTS.
4 THIS CASE IS ALSO NOT ABOUT WHETHER MR. HENSON CAN
5 CRITICIZE OR MAKE FUN OF THE BELIEFS OR PRACTICES OF
6 SCIENTOLOGISTS.
7 WHAT YOU ARE BEING ASKED TO DECIDE IS WHETHER
8 MR. HENSON'S POSTING OF NOTS 34 ON MARCH 30TH, 1996, WAS WILLFUL
9 AND WHAT DAMAGES SHOULD BE AWARDED TO RTC FOR THAT INFRINGEMENT.
10 AS YOU HAVE BEEN INSTRUCTED, INFRINGEMENT IS WILLFUL
11 IF IT IS DONE WITH KNOWLEDGE THAT IT IS IN VIOLATION OF THE
12 OWNER'S COPYRIGHT OR WITH RECKLESS DISREGARD FOR THE COPYRIGHT
13 OWNER'S RIGHTS.
14 HOWEVER, IT IS NOT WILLFUL IF THE INFRINGER ACTS IN
15 GOOD FAITH WITH THE REASONABLE BELIEF THAT HIS INFRINGEMENT
16 DISCLOSES ILLEGAL ACTIVITY AND IS LEGALLY JUSTIFIED BY SOME
17 PARAMOUNT PUBLIC INTEREST THAT SUPERSEDES COPYRIGHT LAW.
18 THEREFORE, ONE OF THE QUESTIONS YOU NEED TO ANSWER
19 IS WHETHER DEFENDANT HENSON, AT THE TIME HE POSTED NOTS 34,
20 ACTED IN GOOD FAITH AND HAD THE REASONABLE BELIEF THAT NOTS 34
21 CONSTITUTED THE UNLAWFUL PRACTICE OF MEDICINE AND, IF SO,
22 WHETHER HE ALSO ACTED IN GOOD FAITH WITH THE REASONABLE BELIEF
23 THAT HE WOULD NOT BE VIOLATING COPYRIGHT LAW BY POSTING NOTS 34.
24 A COPYRIGHT OWNER IS ENTITLED TO ELECT TO RECOVER
25 AN AWARD OF WHAT ARE CALLED STATUTORY DAMAGES UNDER THE
714
1 COPYRIGHT ACT FOR AN INFRINGEMENT. THE PURPOSE OF STATUTORY
2 DAMAGES IS TO ALLOW A SUCCESSFUL COPYRIGHT INFRINGEMENT
3 PLAINTIFF TO RECOVER FROM THE DEFENDANT WHEN THE AMOUNT OF
4 PLAINTIFF'S ACTUAL DAMAGES IS DIFFICULT TO PROVE AND/OR THE
5 DEFENDANT HAS NOT REALIZED ANY FINANCIAL BENEFIT FROM HIS
6 INFRINGING ACTS.
7 RTC HAS ELECTED TO RECOVER STATUTORY DAMAGES AND HAS
8 THE BURDEN OF PROVING BY A PREPONDERANCE OF THE EVIDENCE THE
9 FACTORS THAT ARE RELEVANT TO THE AMOUNT OF SUCH DAMAGE, OF SUCH
10 DAMAGES, THAT SHOULD BE AWARDED WITHIN THE RANGE ALLOWED BY
11 LAW.
12 AN AWARD OF STATUTORY DAMAGES SHOULD BE IN A SUM OF
13 NOT LESS THAN 500, NOR MORE THAN $20,000 AS YOU CONSIDER JUST
14 FOR THE INFRINGEMENT OF THE WORK WITH THE FOLLOWING TWO
15 EXCEPTIONS:
16 ONE, IF RTC PROVES BY A PREPONDERANCE OF THE
17 EVIDENCE AND YOU FIND THAT THE INFRINGEMENT WAS COMMITTED
18 WILLFULLY, YOU MAY, IN YOUR DISCRETION, INCREASE THE AWARD OF
19 STATUTORY DAMAGES TO A SUM OF NOT MORE THAN $100,000.
20 TWO, IF, ON THE OTHER HAND, MR. HENSON PROVES BY A
21 PREPONDERANCE OF THE EVIDENCE AND YOU FIND THAT HE WAS NOT AWARE
22 AND HAD NO REASON TO BELIEVE THAT HIS ACTS CONSTITUTED AN
23 INFRINGEMENT OF COPYRIGHT, YOU MAY, IN YOUR DISCRETION, REDUCE
24 THE AWARD OF STATUTORY DAMAGES TO A SUM OF NOT LESS THAN $200.
25 A DEFENDANT IS ENTITLED TO A REDUCED MINIMUM ONLY IF
715
1 HE PROVES, ONE, THAT HIS INFRINGING CONDUCT WAS ACCOMPLISHED
2 WITH A GOOD FAITH BELIEF IN THE INNOCENCE OF HIS CONDUCT; AND
3 TWO, THAT HE WAS REASONABLE IN HOLDING SUCH GOOD FAITH BELIEF.
4 THE AMOUNT OF AN AWARD OF STATUTORY DAMAGES WITHIN
5 THE RANGE YOU FIND APPLICABLE IS WITHIN YOUR DISCRETION,
6 CONSIDERING THE NATURE OF THE COPYRIGHT, INCLUDING WHETHER IT
7 HAS BEEN PUBLISHED BY THE AUTHOR OR COPYRIGHT OWNER, THE
8 CIRCUMSTANCES OF THE INFRINGEMENT, AND OTHER LIKE FACTORS.
9 SUCH OTHER LIKE FACTORS MAY INCLUDE, BUT ARE NOT
10 LIMITED TO, THE PREVENTION OF UNJUST ENRICHMENT, REPARATION OF
11 ANY INJURY, AND DETERRENCE OF FURTHER SIMILAR WRONGFUL CONDUCT
12 BY DEFENDANT AND OTHERS. YOUR DISCRETION AND SENSE OF JUSTICE
13 ARE CONTROLLING.
14 WHEN A PARTY HAS THE BURDEN OF PROOF ON AN ISSUE BY
15 A PREPONDERANCE OF THE EVIDENCE, IT MEANS YOU MUST BE PERSUADED
16 BY THE EVIDENCE THAT THE POSITION OF THE PARTY HAVING THE BURDEN
17 OF PROOF ON THE ISSUE IS MORE PROBABLY TRUE THAN, IS MORE
18 PROBABLY TRUE THAN NOT TRUE.
19 YOU SHOULD BASE YOUR DECISION ON ALL OF THE
20 EVIDENCE, REGARDLESS OF WHICH PARTY PRESENTED IT.
21 WHEN YOU RETIRE, YOU SHOULD ELECT ONE MEMBER OF THE
22 JURY AS YOUR FOREPERSON. THAT PERSON WILL PRESIDE OVER THE
23 DELIBERATIONS AND SPEAK FOR YOU HERE IN COURT.
24 YOU WILL THEN DISCUSS THE CASE WITH YOUR FELLOW
25 JURORS TO REACH AGREEMENT IF YOU CAN DO SO. YOUR VERDICT MUST
716
1 BE UNANIMOUS.
2 EACH OF YOU MUST DECIDE THE CASE FOR YOURSELF, BUT
3 YOU SHOULD DO SO ONLY AFTER YOU HAVE CONSIDERED ALL OF THE
4 EVIDENCE, DISCUSSED IT FULLY AND WITH THE OTHER JURORS, AND
5 LISTENED TO THE VIEWS OF YOUR FELLOW JURORS.
6 DO NOT BE AFRAID TO CHANGE YOUR OPINION IF THE
7 DISCUSSION PERSUADES YOU THAT YOU SHOULD. DO NOT COME TO A
8 DECISION SIMPLY BECAUSE OTHER JURORS THINK IT IS RIGHT.
9 IT IS IMPORTANT THAT YOU ATTEMPT TO REACH A
10 UNANIMOUS VERDICT BUT, OF COURSE, ONLY IF EACH OF YOU CAN DO SO
11 AFTER HAVING MADE YOUR OWN CONSCIENTIOUS DECISION.
12 DO NOT CHANGE AN HONEST BELIEF ABOUT THE WEIGHT AND
13 EFFECT OF EVIDENCE SIMPLY TO REACH A VERDICT.
14 IF IT BECOMES NECESSARY DURING YOUR DELIBERATIONS TO
15 COMMUNICATE WITH ME, YOU MAY SEND A NOTE THROUGH THE MARSHAL,
16 SIGNED BY YOUR FOREPERSON OR BY ONE OR MORE MEMBERS OF THE JURY.
17 NO MEMBER OF THE JURY SHOULD EVER ATTEMPT TO COMMUNICATE WITH
18 ME, EXCEPT BY A SIGNED WRITING, AND I WILL COMMUNICATE WITH ANY
19 MEMBER OF THE JURY ON ANYTHING CONCERNING THE CASE ONLY IN
20 WRITING, OR HERE IN OPEN COURT.
21 IF YOU SEND OUT A QUESTION, I WILL CONSULT WITH THE
22 PARTIES BEFORE ANSWERING, WHICH MAY TAKE SOME TIME. YOU MAY
23 CONTINUE YOUR DELIBERATIONS WHILE WAITING FOR THE ANSWER TO ANY
24 QUESTION.
25 REMEMBER THAT YOU ARE NOT TO TELL ANYONE, INCLUDING
717
1 ME, HOW THE JURY STANDS, NUMERICALLY OR OTHERWISE, UNTIL AFTER
2 YOU HAVE REACHED A UNANIMOUS VERDICT OR HAVE BEEN DISCHARGED.
3 DO NOT DISCLOSE ANY VOTE COUNT IN ANY NOTE TO THE COURT.
4 AFTER YOU HAVE REACHED UNANIMOUS AGREEMENT ON A
5 VERDICT, YOUR FOREPERSON WILL FILL IN, DATE AND SIGN THE VERDICT
6 FORM AND ADVISE THE COURT THAT YOU HAVE REACHED A VERDICT.
7 THAT COMPLETES THE LEGAL INSTRUCTIONS.
8 YOU WILL ALSO BE GIVEN, IN THE JURY ROOM, A VERDICT
9 FORM THAT HAS TWO QUESTIONS ON IT, AND THAT'S THE TWO QUESTIONS
10 YOU ARE BEING ASKED TO ANSWER.
11 QUESTION ONE, DO YOU FIND THAT DEFENDANT, KEITH
12 HENSON'S, INFRINGEMENT OF THE COPYRIGHT IN PLAINTIFF RELIGIOUS
13 TECHNOLOGY CENTER'S WORK WAS WILLFUL? THERE'S A PLACE FOR YES
14 AND A PLACE FOR NO. JUST CHECK WHICH YOUR ANSWER IS.
15 AND THE SECOND QUESTION, WHAT AMOUNT OF DAMAGES DO
16 YOU AWARD PLAINTIFF RELIGIOUS TECHNOLOGY CENTER AGAINST
17 DEFENDANT H. KEITH HENSON, AND A PLACE TO FILL IN THE AMOUNT AND
18 A PLACE FOR THE DATE AND SIGNATURE OF WHOEVER YOUR FOREPERSON
19 IS.
20 WE WILL SEND IN THE EXHIBITS TO THE JURY ROOM SO
21 THAT YOU'LL HAVE THEM. AS I BELIEVE I'VE TOLD YOU BEFORE,
22 YOU'RE FREE TO DELIBERATE AS LONG AS YOU WISH TODAY. YOU'RE NOT
23 CONFINED BY THE SCHEDULE THAT I GAVE OF KNOCKING OFF AT 1:00
24 O'CLOCK. THAT SCHEDULE IS DESIGNED BECAUSE I HAVE OTHER THINGS
25 THAT I HAVE TO DO, BUT CERTAINLY YOU CAN DELIBERATE DURING THAT
718
1 TIME, AND IF YOU REACH A VERDICT, I CERTAINLY CAN TAKE IT
2 WHENEVER YOU REACH IT.
3 WHEN YOU HAVE REACHED A VERDICT, THE FOREPERSON
4 SHOULD DATE AND SIGN THE FORM AND BRING IT WITH HIM OR HER BACK
5 INTO THE COURTROOM. DON'T GIVE IT TO THE MARSHAL OUTSIDE THE
6 DOOR.
7 THEN WHEN YOU COME IN THE COURT, I WILL JUST CONFIRM
8 THAT YOU HAVE REACHED A VERDICT, ASK YOU TO HAND THE VERDICT
9 FORM TO THE COURT CLERK, MS. AYALA, SHE'LL GIVE IT TO ME, I'LL
10 REVIEW IT TO MAKE SURE IT'S IN PROPER FORM IN THE SENSE THAT
11 YOU'VE ANSWERED THE TWO QUESTIONS, AND THEN SHE WILL READ IT TO
12 THE PARTIES, AND THAT'S BASICALLY HOW THE PROCESS WORKS.
13 SO YOU WANT TO CLEAR THE MARSHAL IN, PLEASE?
14 THE CLERK: PLEASE COME FORWARD.
15 COURT SECURITY OFFICER SWORN
16 THE MARSHAL: I WILL.
17 THE CLERK: THANK YOU.
18 THE COURT: ALL RIGHT. NOW, AS FAR AS BREAKING FOR
19 LUNCH OR BREAKING AT OTHER TIMES, THAT'S WITHIN YOUR DISCRETION.
20 THE ONLY THING THAT I WOULD REMIND YOU OF IS THAT
21 YOU'RE ONLY TO TALK ABOUT THE CASE WHEN ALL OF YOU ARE TOGETHER.
22 IN OTHER WORDS, IF YOU WERE TO BREAK FOR LUNCH AND THREE GO ONE
23 PLACE AND TWO GO ANOTHER AND ONE GO SOMEWHERE ELSE, YOU SHOULD
24 NOT BE TALKING ABOUT THE CASE DURING THAT TIME. SO ONLY DISCUSS
25 THE CASE WHEN YOU'RE ALL TOGETHER.
719
1 ALSO, IF YOU ARE GOING TO BREAK FOR LUNCH, WOULD YOU
2 GIVE US A NOTE TELLING US WHEN YOU'RE BREAKING AND WHEN YOU'LL
3 BE BACK SO THAT WE WILL KNOW THAT WE DON'T HAVE TO BE REASONABLY
4 AVAILABLE TO YOU DURING THAT TIME.
5 ALSO, WHEN YOU DECIDE TO BREAK FOR THE DAY, IF YOU
6 DO DECIDE TO BREAK HAVING NOT REACHED A VERDICT, JUST LET US
7 KNOW THAT YOU HAVE BROKEN AND WHEN YOU INTEND TO RESUME
8 DELIBERATIONS.
9 SO WITH THAT, YOU CAN TAKE THEM OUT TO THE JURY
10 ROOM.
11 (WHEREUPON, THE FOLLOWING PROCEEDINGS WERE HELD OUT
12 OF THE PRESENCE OF THE JURY.)
13 THE COURT: LET ME FIRST CONFIRM -- PLEASE SIT
14 DOWN, NO NEED TO REMAIN STANDING.
15 LET ME FIRST CONFIRM WITH YOU THAT I READ THE
16 INSTRUCTIONS AS I INDICATED I WOULD. NOT THAT YOU NECESSARILY
17 AGREE WITH THEM, BUT THAT I READ THEM AS I SAID I WOULD.
18 MR. BERRY: YES, YOU DID, YOUR HONOR.
19 MR. ROSEN: YES, YOUR HONOR.
20 THE COURT: OKAY. NUMBER TWO, THEY HAVE THEIR
21 BOOKS, WHICH BASICALLY HAVE THE EXHIBITS THAT HAVE BEEN ADMITTED
22 IN THEM, EXCEPT FOR THOSE, I THINK, THAT WERE ADMITTED TODAY.
23 COULD THE TWO OF YOU COLLECT THOSE SO THAT WE CAN
24 MAKE SURE THOSE GET BACK TO THE JURY ROOM? I THINK THOSE WERE
25 ONLY 142 AND 143. I BELIEVE THOSE ARE THE ONLY EXHIBITS THAT
720
1 ARE IN ADDITION TO THOSE THAT ARE ALREADY IN, IN THE BOOKS. IS
2 THAT CORRECT?
3 MR. ROSEN: I THINK -- YEAH, I THINK I OFFERED 143,
4 AND MR. BERRY OFFERED 142, IF I REMEMBER CORRECTLY. ONE IS THE
5 JUDGE GESELL DECISION, THE OTHER ONE IS THE DISTRICT COURT
6 CIRCUIT OF APPEAL DECISION.
7 THE COURT: RIGHT. THOSE WERE THE ONLY TWO
8 EXHIBITS, I THINK, THAT WERE ADMITTED.
9 MR. ROSEN: I BELIEVE SO.
10 THE COURT: AND I BELIEVE, MR. BERRY, CORRECT ME IF
11 I'M WRONG, WHEN WE INTRODUCED DEFENSE EXHIBIT A, WE PASSED THEM
12 OUT TO THE JURY.
13 MR. BERRY: I BELIEVE THEY STILL HAVE THEM IN THEIR
14 BOOKS.
15 THE COURT: I'LL HAVE MS. AYALA CHECK.
16 EVERYBODY IN AGREEMENT ON EXHIBITS? DO YOU HAVE A
17 COPY OF -- MAYBE I'VE GOT ONE, 142 AND 143?
18 HERE, YOU BOTH WANT TO CONFIRM THAT THOSE ARE THE
19 TWO EXHIBITS THAT YOU WANT IN?
20 MR. ROSEN: YOUR HONOR, I'M SURE THEY ARE.
21 MR. BERRY: YEAH.
22 THE COURT: I ASSUME THAT'S --
23 MR. BERRY: YEAH.
24 THE COURT: OKAY. ALL RIGHT. I'LL HAVE HER GIVE
25 THEM THOSE.
721
1 OTHER THAN THAT, THE ONLY THING THAT I WOULD ASK YOU
2 TO DO IS STAY IMMEDIATELY AVAILABLE IN THE COURTROOM UNTIL WE
3 LEARN WHAT WE'RE GOING TO LEARN ABOUT THEIR BREAKING FOR LUNCH.
4 AFTER THAT, THE ONLY THING I REQUIRE IS THAT YOU BE
5 WITHIN TEN MINUTES OF THIS COURTROOM, AND THAT MEANS MAKING SURE
6 THAT MS. AYALA KNOWS SPECIFICALLY WHERE YOU WILL BE.
7 MR. BERRY, THERE IS A LIBRARY UPSTAIRS. IF YOU WANT
8 TO USE THAT, YOU'RE WELCOME TO, JUST MAKE SURE THAT WE KNOW
9 THAT'S WHERE YOU ARE.
10 MR. ROSEN: YOU KNOW WHERE WE'LL BE.
11 THE COURT: I --
12 MR. ROSEN: DOWN THE HALL WITH JUDGE FOGEL, I THINK.
13 THE COURT: THAT'S UP ON THE FIFTH FLOOR ALSO.
14 MR. ROSEN: I MEANT IN THE BUILDING.
15 THE COURT: ALL RIGHT. ANYTHING ELSE BEFORE WE
16 BRAKE?
17 MR. ROSEN: I HAD ONE QUESTION, IF I CAN JUST ASK
18 NOW? AFTER A VERDICT, I ASSUME YOUR HONOR IS GOING TO SET A
19 TIME FOR ANY POST-VERDICT MOTIONS.
20 THE COURT: BASICALLY MY VIEW ON THAT IS THAT YOU
21 JUST FILE THEM IN ACCORDANCE WITH THE TIME REQUIREMENTS UNDER
22 THE FEDERAL RULES.
23 MR. ROSEN: OKAY. AS YOUR HONOR KNOWS, WE INTEND TO
24 MAKE AN APPLICATION FOR ATTORNEY'S FEES. IS IT YOUR HONOR'S
25 PREFERENCE THAT THAT BE DONE AT THE -- BEFORE THE JUDGMENT IS
722
1 ENTERED ON THE VERDICT SO THAT IT CAN BE ALL A PART OF THE
2 JUDGMENT? OR DOES YOUR HONOR WANT US TO MAKE IT AFTER THE ENTRY
3 OF JUDGMENT ON THE VERDICT?
4 THE COURT: I BELIEVE, AND I'LL REVIEW THE LOCAL
5 RULES, THERE IS A LOCAL RULE ON APPLICATIONS FOR ATTORNEY'S
6 FEES.
7 MY RECOLLECTION OF THE PROCEDURE, AND YOU SHOULD
8 CHECK IT, BECAUSE THAT'S THE PROCEDURE I WANT YOU TO FOLLOW, IS
9 THAT YOU HAVE SO MANY DAYS IN WHICH TO MAKE IT AND THERE'S A
10 PROCEDURE THAT'S FOLLOWED IN DOING IT.
11 MR. ROSEN: I CHECKED IT. THAT'S WHY I ASKED THE
12 QUESTION, BECAUSE IT SETS A TIME FOR WHEN YOU CAN DO IT, BUT IT
13 DOESN'T RELATE IT TO, I DIDN'T UNDERSTAND IT --
14 THE COURT: I NORMALLY -- AND UNLESS SOMEBODY WANTS
15 ME TO DO IT OTHERWISE, OR FEELS IT SHOULD BE DONE DIFFERENTLY,
16 IT SEEMS TO ME THAT THAT SHOULD BE TREATED JUST AS COSTS ARE,
17 WHICH ARE ENTERED POST-JUDGMENT.
18 MR. ROSEN: THAT'S FINE.
19 THE COURT: AND WE HANDLE IT THAT WAY.
20 MR. ROSEN: THAT'S FINE.
21 MR. BERRY: I WAS UNDER THE IMPRESSION, YOUR HONOR,
22 THAT THE COURT HAD MADE SOME COMMENT ABOUT ATTORNEY'S FEES IN
23 THE PAST, BEFORE I ENTERED THE CASE.
24 THE COURT: AS I SIT HERE NOW, I CAN'T PULL ONE OUT
25 OF MY RECOLLECTION.
723
1 MR. BERRY: I WASN'T HERE.
2 THE COURT: I CAN'T -- I CAN'T THINK OF WHY I WOULD
3 HAVE, BUT I DON'T WANT TO SAY I DIDN'T, BECAUSE IT'S CERTAINLY
4 POSSIBLE THAT IT CAME UP IN SOME WAY.
5 MR. BERRY: I'VE BEEN REMINDED, YOUR HONOR, THAT IT
6 WAS ABOUT THE WITHDRAWN OR DISMISSED TRADE SECRET ISSUES.
7 THE COURT: OH, YEAH, I THINK I MAY HAVE MADE SOME
8 COMMENT, THAT DOES REFRESH MY MEMORY A LITTLE BIT, THAT IN
9 RESPONSE TO AN APPLICATION FOR ATTORNEY'S FEES, MR. HENSON WOULD
10 BE FREE TO MAKE WHATEVER ARGUMENT HE FELT WAS APPROPRIATE WITH
11 RESPECT TO ATTORNEY'S FEES BASED UPON THE DISMISSAL OF THE TRADE
12 SECRET CLAIM.
13 AND I UNDERSTOOD FROM THAT THAT HE'S BASICALLY
14 SAYING, LOOK, THIS IS WHAT THIS CASE WAS ABOUT AND NOW THIS IS
15 WHAT IT'S ABOUT AND THAT SHOULD BE A FACTOR CONSIDERED IN
16 CONNECTION WITH ATTORNEY'S FEES.
17 SO ANY ARGUMENT THAT WANTS TO BE MADE -- BUT AS I
18 RECALL, THE LOCAL RULES SET UP A PROCEDURE WHEREBY THERE HAS TO
19 BE A SUBMISSION AND A MEET AND CONFER, AND THEN A HEARING IF
20 NECESSARY AND BRIEFING IF NECESSARY.
21 OKAY. ALL RIGHT. THANK YOU.
22 (RECESS PENDING THE JURY'S DELIBERATIONS.)
23
24
25
724
1 THE COURT: ALL RIGHT. LET THE RECORD REFLECT
2 EVERYONE IS PRESENT.
3 MR. GRAY, YOU'RE THE FOREPERSON; IS THAT CORRECT?
4 MR. GRAY: YES, I AM.
5 THE COURT: HAS THE JURY REACHED A VERDICT?
6 THE WITNESS: YES, WE HAVE.
7 THE COURT: WOULD YOU HAND IT TO MS. AYALA, PLEASE?
8 (PAUSE IN PROCEEDINGS.)
9 THE COURT: ALL RIGHT. WOULD YOU READ THE VERDICT,
10 PLEASE?
11 THE CLERK: LADIES AND GENTLEMEN OF THE JURY, HARKIN
12 TO YOUR VERDICT FOR IT WILL STAND RECORDED IN THE UNITED STATES
13 DISTRICT COURT OF THE NORTHERN DISTRICT OF CALIFORNIA FOR THE
14 MATTER OF C-96-20271, RELIGIOUS TECHNOLOGY CENTER VERSUS
15 H. KEITH HENSON.
16 QUESTION ONE, DO YOU FIND THAT DEFENDANT H. KEITH
17 HENSON'S INFRINGEMENT OF THE COPYRIGHT IN PLAINTIFF RELIGIOUS
18 TECHNOLOGY CENTER'S WORK WAS WILLFUL?
19 YES.
20 QUESTION TWO, WHAT AMOUNT OF DAMAGES DO YOU AWARD TO
21 PLAINTIFF RELIGIOUS TECHNOLOGY CENTER AGAINST DEFENDANT H. KEITH
22 HENSON?
23 $75,000.
24 THIS IS DATED MAY 12TH, 1998, BY THE FOREPERSON,
25 JAMES R. GRAY.
725
1 THE COURT: MR. GRAY, DID THE CLERK CORRECTLY READ
2 THE VERDICT?
3 MR. GRAY: YES, SHE DID.
4 THE COURT: ALL RIGHT. DOES EITHER SIDE WISH THE
5 JURY POLLED?
6 MR. ROSEN: NO, YOUR HONOR.
7 MR. BERRY: YES, YOUR HONOR.
8 THE COURT: ALL RIGHT. SINCE THE VERDICT HAS TO BE
9 UNANIMOUS, EITHER SIDE HAS THE RIGHT TO ASK THAT THE JURY BE
10 POLLED. THIS MEANS THAT THE CLERK WILL CALL YOUR NAME AND ASK
11 YOU, IS THE VERDICT AS READ YOUR VERDICT?
12 WOULD YOU DO THAT, PLEASE, MS. AYALA?
13 THE CLERK: JUROR NUMBER 1, ALBERT LUI, IS THAT YOUR
14 VERDICT AS READ BY THE COURT?
15 MR. LUI: YES, IT IS.
16 THE CLERK: JUROR NUMBER 2, JAMES GRAY, IS THAT YOUR
17 VERDICTS AS READ BY THE COURT?
18 MR. GRAY: YES, IT IS.
19 THE COURT: JUROR NUMBER THREE, JOHN KOLESSAR, IS
20 THAT YOUR VERDICT AS READ BY THE COURT?
21 MR. KOLESSAR: YES, IT IS.
22 THE CLERK: JUROR NUMBER FOUR, WILLIAM MOORE,
23 JUNIOR, IS THAT YOUR VERDICT AS READ BY THE COURT?
24 MR. MOORE: YES.
25 THE COURT: JUROR NUMBER FIVE, MICHAEL PALMER, IS
726
1 THAT YOUR VERDICT AS READ BY THE COURT?
2 MR. PALMER: YES.
3 THE COURT: JUROR NUMBER SIX, DORIS YEH, IS THAT
4 YOUR VERDICT AS READ BY THE COURT?
5 MS. YEH: YES.
6 THE CLERK: AND JUROR NUMBER SEVEN, DEBORAH HOOK, IS
7 THAT YOUR VERDICT AS READ BY THE COURT?
8 MS. HOOK: YES.
9 THE COURT: ALL RIGHT. LADIES AND GENTLEMEN, THAT
10 COMPLETES YOUR SERVICE IN THIS CASE.
11 I WANT TO THANK YOU AGAIN, AS COUNSEL DID IN THEIR
12 ARGUMENTS, FOR YOUR ATTENTION AND DILIGENCE THROUGHOUT THIS
13 CASE.
14 THE INSTRUCTION THAT I GAVE YOU AT THE BEGINNING OF
15 THE CASE ABOUT NOT TALKING TO ANYONE NO LONGER APPLIES. THAT
16 MEANS THAT YOU'RE FREE TO TALK TO ANYONE ABOUT THE CASE IF YOU
17 WISH TO.
18 ON THE OTHER HAND, YOU HAVE NO OBLIGATION WHATSOEVER
19 TO TALK ABOUT IT IF YOU DON'T WISH TO. WHAT THAT MEANS IS IF
20 SOMEBODY SHOULD SEE YOU, LIKE ONE OF THE ATTORNEYS OR SOMEBODY
21 INVOLVED, AND ASK YOU A QUESTION ABOUT THE CASE, IF YOU WANT TO
22 ANSWER IT, THAT'S FINE.
23 IF YOU DON'T, JUST RESPECTFULLY SAY "I DON'T CARE TO
24 TALK ABOUT THE CASE" AND THAT, I'M SURE, WILL BE RESPECTED.
25 I REALIZE THAT JURY SERVICE IS AN INTERFERENCE WITH
727
1 ALL YOUR LIVES, AND I KNOW IN THIS CASE, IT MAY HAVE IMPACTED
2 SOME OF YOU DIFFERENTLY. I KNOW WE HAVE ONE TEACHER ON THE
3 JURY, AND I'M ALWAYS CONCERNED ABOUT TEACHERS, AS I AM WITH
4 OTHER PEOPLE, BUT IT IS IMPORTANT THAT WE TRY AND HAVE A CROSS
5 SECTION OF INDIVIDUALS SIT ON JURIES, AND I JUST WANT YOU TO
6 KNOW THAT I DO KNOW THAT IT'S AN INTERFERENCE WITH YOUR LIVES,
7 BUT I THINK IT'S IMPORTANT AND I APPRECIATE YOUR HAVING SERVED.
8 WITH THAT, YOU'RE EXCUSED, AND THANK YOU AGAIN FOR
9 YOUR SERVICE.
10 IF YOU'LL GO WITH MS. AYALA, SHE'LL COLLECT YOUR
11 BADGES AND TELL YOU ANY OTHER PROCEDURAL THINGS YOU NEED TO
12 KNOW.
13 ALL RIGHT. MR. ROSEN, I WOULD ASK THAT YOU SUBMIT A
14 PROPOSED JUDGMENT, AND THAT CONCLUDES OUR PROCEEDINGS. THANK
15 YOU VERY MUCH.
16 MR. ROSEN: THANK YOU, YOUR HONOR.
17 MR. HENSON: THANK YOU, YOUR HONOR.
18 (PROCEEDINGS CONCLUDED.)
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