VOLUME V TRIAL
IN THE CIRCUIT COURT IN AND FOR PINELLAS COUNTY, FLORIDA CASE NO. 99-7430-CI-08
: CHURCH OF SCIENTOLOGY FLAG SERVICE : ORGANIZATION, INC., a Florida : corporation, : : Petitioner, : : vs. : : ROBERT S. MINTON, JR., ET AL., : : Respondents. : ----------------------------------------x BEFORE: The Honorable THOMAS E. PENICK, JR. PLACE: Pinellas County Judicial Building 545 First Avenue North St. Petersburg, Florida DATE: February 12, 2001 TIME: 9:00 A.M. REPORTED BY: JACKIE L. OSTROM Court Reporter --------------------------------------------------- ORDERS TO SHOW CAUSE --------------------------------------------------- Pages 551 - 663 Volume V ROBERT A. DEMPSTER & ASSOCIATES P.O. BOX 35 CLEARWATER, FLORIDA (727) 443-0992 . APPEARANCES The Honorable THOMAS E. PENICK, JR. CIRCUIT COURT JUDGE F. WALLACE POPE, JR., ESQUIRE JOHNSON, BLAKELY, POPE ET AL 911 Chestnut Clearwater, Florida MICHAEL LEE HERTZBERG, ESQUIRE 740 Broadway, Fifth Floor New York, New York 10003 Attorneys for Church of Scientology Flag Ship Organization JOHN MERRETT, ESQUIRE 2716 Herschel Street Jacksonville, Florida 32205 BRUCE G. HOWIE, ESQUIRE PIPER, LUDIN, HOWIE AND WERNER 5720 Central Avenue St. Petersburg, Florida 33707 Attorneys for Robert Minton and Lisa McPherson Trust, Inc. . 553 1 PROCEEDINGS 2 THE COURT: All right. Are we ready to 3 proceed? 4 MR. MERRETT: Yes, Your Honor. 5 THE COURT: All right. When we broke 6 for lunch the plaintiff said they had 7 presented their evidence and we are ready to 8 shift sides now. 9 MR. MERRETT: Yes, Your Honor. At this 10 time on behalf of the defendants other than 11 Mr. Minton I have, I'm afraid, a rather 12 lengthy motion for judgment of acquittal to 13 make. 14 THE COURT: Okay. You may proceed. 15 MR. MERRETT: Thank you, Your Honor. If 16 I may, where I would like to begin is with 17 the injunction itself. Let's take a look at 18 what is actually prohibited. 19 THE COURT: Okay. Hold on just a 20 minute. I have the injunction. 21 MR. MERRETT: The reason that we start 22 here, Your Honor, is because the orders to 23 show cause issued by the court in this case 24 are for obvious reasons all directed to what 25 are alleged in the orders to show cause to be . 554 1 violations of the injunction. 2 So, the first question is what exactly 3 is mandated or prohibited by the injunction? 4 Looking at page four of Temporary Injunction 5 Number One -- 6 THE COURT: Hold on just a minute. Hold 7 on. Let me do this. I'm just trying to get 8 my staff attorney where he can see what 9 you're doing. Ian, come up here and sit in 10 the witness box to begin with. 11 (Whereupon, a pause in the proceedings took 12 place.) 13 MR. MERRETT: Where we look first is at 14 the actual prohibition for mandates of the 15 injunction. As the court is obviously aware, 16 the two forms injunctive relief can take are 17 mandatory and prohibited and this is, 18 although there is some I guess you could 19 optionally mandatory provisions. That is if 20 you're going to do A: You must do it in the 21 following manner, but it's essentially a 22 prohibitive injunction. 23 Looking at paragraph one of page four of 24 the court's Temporary Injunction Number Two 25 we see at the beginning the enumerated . 555 1 prohibition. This is as to the respondent. 2 Who the respondents are is a matter that 3 I'll take up at another point in the 4 argument, but point one is the ten foot 5 rule. 6 Specific prohibition is that respondents 7 are prohibited from coming within ten feet 8 of any member of the Church. 9 The second prohibition in that same 10 paragraph is against blocking paths of 11 Scientologists or Scientology vehicles. 12 The third prohibition is against 13 inhibiting entry or exit to or from 14 Scientology property. 15 The fourth prohibition is against 16 engaging in harassment, or violence against 17 members of Scientology. 18 Now, going to the next page, the 19 injunction says that picketing, protesting, 20 and other first amendment exercises are to 21 be in orange areas only. 22 The court then went on and I won't 23 re-enumerate it. The court then went on to 24 make the prohibition and mandate bilateral 25 by imposing these same restrictions against . 556 1 Scientologists as to the persons and 2 property of the respondents and by limiting 3 First Amendment activities of Scientologists 4 to green areas. In other words, what the 5 court crafted was a completely bilateral 6 injunction. 7 Then, a very short while afterwards, 8 because Mr. Pope detected ambiguity or 9 insufficiency in the court's order, the 10 matter was brought to you ex parte, without 11 notice again, a motion to clarify and 12 correct the injunction that you had entered 13 on November 30. And you entertained that 14 and you entered an order. 15 The portion of that order clarifying, 16 entered on December 1, which is pertinent to 17 what we're doing here at this point, dealt 18 with the actual meaning of the picture 19 restrictions that the court included in the 20 original injunction. 21 And I do need to advise the court that 22 the stamped-in original of the order does 23 not include the interlineations that are on 24 the copies that were furnished to counsel. 25 I don't think it matters right now, but it's . 557 1 something the court needs to be aware of and 2 you may want to correct it as a housekeeping 3 matter. I'm looking at the court file here. 4 THE COURT: Let me see that. 5 MR. MERRETT: Yes, sir. Unless that's a 6 color photostat of the one you signed in blue 7 ink, there are interlineations on page two 8 the court added prior to signing on all of 9 the copies, on the true copies that the court 10 stamped which are not present there. 11 THE COURT: I'm sorry. I'm not 12 following what you're saying. 13 MR. MERRETT: If you would look at 14 paragraph three on page two of the order of 15 December 1. 16 THE COURT: Right. 17 MR. MERRETT: The second line, the laws 18 of the State of Florida and the applicable 19 rules of court is free to serve -- on the 20 true copies that the court sent out the court 21 inserted the word "legally" and then 22 initialled out in the right-hand margin 23 between the word "to" the word "serve". 24 THE COURT: That was on the copies? 25 MR. MERRETT: That's on all of the true . 558 1 copies that you sent out. 2 THE COURT: Yeah. 3 MR. MERRETT: But as I say, that's more 4 of a housekeeping matter than anything else. 5 THE COURT: Needless to say, I thought 6 that had gotten on the original in the court 7 file. 8 MR. POPE: Your Honor, I certainly have 9 no objection to the court entering at this 10 time that order we've been operating under is 11 the one that says to legally serve. 12 THE COURT: What do you say, 13 Mr. Merrett? 14 MR. MERRETT: That's fine, Your Honor. 15 THE COURT: Mr. Howie? 16 MR. HOWIE: Your Honor, I have no 17 objection to the correction. 18 THE COURT: Is free to legally serve, 19 I'll put that on there and I'll initial it in 20 orange in the court file. Okay. Thank you 21 for calling that to my attention. 22 MR. MERRETT: May I proceed? 23 THE COURT: You may. Oh, yes. 24 MR. MERRETT: With respect to this 25 subject matter to the actual -- what I intend . 559 1 to deal with first which is the what is 2 alleged to have been picketing activity 3 violative of the order, the clarification 4 that the court made is very important and not 5 for any sharp or clever reason, but for a 6 very plain reason that become abundantly 7 clear in just a minute. 8 THE COURT: Okay. 9 MR. MERRETT: What the court said was or 10 recognized that on its face the injunction as 11 originally entered would have, for example, 12 if Mr. Minton got a raw deal at Best Buys 13 would have prohibited him from going to the 14 Best Buy store in Pinellas County and 15 picketing in front of the store because of 16 the way it was worded. 17 Now, in clarifying that the court 18 specified that the restrictions that were 19 imposed applied and kind of stated in the 20 negative: Nothing in Temporary Injunction 21 Number Two shall be deemed to prohibit the 22 defendants from peacefully exercising their 23 First Amendment rights in any other location 24 in Pinellas County outside of those areas 25 denominated on the diagrams, okay. . 560 1 So, essentially what the court says in 2 that paragraph is that the prohibitions 3 apply with respect to picketing or I'll just 4 first call it First Amendment, only in the 5 areas on the diagrams. 6 Now, there is another inherent ambiguity 7 that you probably picked up by now, which 8 is, even as it presently stands it appears 9 to prima facie prohibit me from praying on 10 the street in front of the Lisa McPherson 11 Trust because the exercise of First 12 Amendment activity says limited to orange 13 areas, but that's not something we're 14 talking about today. 15 The reason that this is important is 16 this, Your Honor, and it is clear as I've 17 mentioned before, the amount of thought and 18 effort that went into the creation of this 19 injunction, because the injunction looks not 20 to or not strictly to the requests of the 21 parties, not strictly to the arguments of 22 parties. It looks to the problem as the 23 court perceived the problem and the 24 situation having been presented based on the 25 evidence. . 561 1 And having done that, one thing, one 2 thing that it is clear the court did not 3 intend to do and did not do is to prohibit 4 picketing. Clearly that's in the plain 5 language of the order clarifying. It says: 6 And to permit picketing in particular areas. 7 Now, the court has probably more copies 8 than it wants of the injunction and the 9 accompanying diagram. What I need to point 10 out to you is this. 11 If you string it together and I'm only 12 going to deal with the properties that have 13 been dealt with in the course of this 14 proceeding. 15 The areas that we've been talking about, 16 whatever went on, whatever the court decides 17 went on, everything that you're looking at 18 right here, if you start taping the diagrams 19 together is on the diagrams. There is no 20 question about that. And the diagrams for 21 obvious reasons because of what it is the 22 court intended to regulate, diagrams 23 obviously are not -- they're not what do 24 they call them? Architects elevations of 25 buildings. They're pictures of areas, . 562 1 geographical areas of town. 2 Now, we have the prohibition against 3 picketing except in orange areas in the 4 areas that are shown on the diagrams. 5 That's what all this totals up to. And the 6 areas shown on the diagrams are all of the 7 city blocks which are -- what's a good way 8 to put this? From the Lisa McPherson Trust, 9 all way down to the far side to the south 10 side of the Ft. Harrison Hotel is all 11 covered on the maps. 12 Judge, you didn't prohibit picketing. 13 If -- pick somebody, one of the suppressive 14 persons, decides to go picket and how we 15 going to do that? Here's what we'll do. 16 We'll come out, what is -- nobody uses it, 17 but it's actually the front door of the 18 Trust, Ft. Harrison door, we'll get in a car 19 and go around the block and come up to here 20 and we'll come to where? We'll pull down 21 Park Street and we'll get out and we'll walk 22 or we'll go and we'll stop on this side of 23 Ft. Harrison and get out and walk to picket. 24 You got to get there somehow. You go by 25 car or you can go on foot. You didn't . 563 1 prohibit us for walking. And in fact one of 2 things that was most impressive of the 3 injunction is that it did not prohibit 4 anybody from being anywhere except in the 5 context of picketing and in the context of 6 proximity to people who are somehow 7 connected with the other party. 8 Judge, since you didn't prohibit 9 picketing, you obviously did not prohibit 10 people going to picket and coming back from 11 picketing. 12 What this means is that clearly 13 necessarily and I would believe the reason 14 it's put together this way is because it 15 would be an absolute requirement to protect 16 the injunction from a serious constitutional 17 infirmity. I think this is why it's put 18 together this way. People have to be able 19 to transit to and from the approved areas of 20 picketing. 21 Otherwise, you would have done what I 22 can't believe the court intended to do which 23 is without saying so, prohibit picketing. 24 Sure, you can picket provided that you have 25 a jet pack. You can picket providing you're . 564 1 trying to repel out of a helicopter. You 2 can picket provided that you can do it by 3 leaving your body. 4 I think if you were going to prohibit 5 picketing you would have said no picket. 6 One of the things that I have noticed in 7 my limited experience with the court is that 8 this court seems to have little trouble 9 expressing itself and I think if you were 10 going to prohibit picketing that's what it 11 would have said. 12 By not prohibiting picketing, 13 necessarily both as a matter of logic of the 14 face of these documents and I think as 15 probably a deliberate means to avoid 16 constitutional infirmity, the court has to 17 have left open the ability to transit 18 from -- I don't know what the right word to 19 use is, from a place of origin or refuge to 20 an approved place to picket and back. 21 I mean there is no saving -- there is no 22 way to get to picket without passing through 23 a zone which is not an orange zone in 24 possession of your picket sign. 25 That's the first place that we have to . 565 1 start. And we'll come through when I go 2 through the orders to show cause themselves, 3 the number of times that the activity that 4 Scientology has brought before you is 5 clearly activity in transit. 6 Before I do that though there is a 7 couple of specific testimonial points that I 8 want you to consider with respect to the 9 issue of passing in transit. 10 Do you remember Mr. Avila testifying 11 that on, I want to say it was the 7th of 12 January, he photographed or videotaped 13 Mr. Minton, Mr. Enerson, Mr. Lerma, 14 Ms. Gogolla and myself on the south side of 15 the Coachman Building and then videotaped 16 everybody in front of the Super Power 17 Building and then videotaped everybody going 18 back in front of the Coachman Building, but 19 didn't videotape -- if you remember, he said 20 he wasn't sure whether they were walking 21 across the front of the Clearwater Bank 22 Building or across the front of the Coachman 23 Building, but he didn't videotape that part 24 of it, why? Because they weren't picketing. 25 They didn't throw away the Threep, which . 566 1 you haven't heard by that name on the record 2 yet, but you know what we're talking about, 3 the pole that Mr. Minton was supposedly 4 carrying. We know what it is. 5 They didn't say that he pitched the 6 Threep in the dumpster behind the Coachman, 7 didn't say the picket signs went away, 8 didn't say that the megaphones went away. 9 In fact on cross-examination he said yeah, 10 they had all this stuff with them but they 11 were just walking, they weren't picketing so 12 I didn't videotape them. 13 So, obviously even Scientology through 14 its operative concedes that this right of 15 transit exists. Nobody thinks that you 16 don't have the right to walk to and from a 17 lawful place to picket. And I'm using 18 lawful here to be synonomous with in 19 compliance with the injunction. 20 Clearly you have the right to do that. 21 There is obviously, Scientology takes some 22 other sort of -- what is the word I'm 23 looking for, refined view of what the 24 injunction says and what these zones mean 25 because you saw Mr. Avila quite blandly . 567 1 conceding that while there were picketers in 2 the orange zone on the south side of the 3 Ft. Harrison building, he, himself, entered 4 the orange zone on the south side of the 5 Ft. Harrison building for the purpose of 6 videotaping them. 7 So, we obviously know that nobody, 8 including Scientology, believes that these 9 are intended as specific restrictions on 10 what people are -- where people can go. 11 It's part of a picket and that's what you 12 have to look at is our people picketing and 13 what is a picket? That's the first point. 14 The second point which the court -- I've 15 created an uproar, Judge. This is the north 16 side of the Ft. Harrison Hotel. 17 THE COURT: I noted that and I was going 18 to correct you, but thank you. 19 MR. MERRETT: Okay. The next point, and 20 it's one which involves a substantial volume 21 of arcane law and I have cases. What I would 22 like to do is discuss it first and then 23 follow the court's guidance on dumping it on 24 you because it is about a boat load. 25 Under the rule that applies, under Rule . 568 1 1.610, every injunction not only includes 2 the specific language, but I think it 3 actually deemed regardless of its exclusion 4 of the language to cover and I'm quoting 5 here from paragraph four on page five, it's 6 the same as applied to the respondent. It 7 cover members, officers agents, servants, 8 employees and those persons and entities in 9 actual concert or participation. And 10 interestingly on one of the occasions that I 11 read in researching this point, I know that 12 that concept in almost identical language is 13 included in the federal rules. I don't know 14 where else it appears in state law, but 15 interestingly one on the cases that I read 16 said that that application or interpretation 17 of the reach of an injunction actually goes 18 back before statehood. It was part of 19 territorial law when Florida was a U.S. 20 Territory in I think the first thing that 21 they cited on was from the 1820s. Anyway, 22 it's not a novel concept. 23 It is, however, as I said, a fairly 24 arcane concept. There is very, very little 25 law that says what that means and the reason . 569 1 that I raised this point is this. 2 Hypothetically, in an older section of 3 town where lots are 50 feet apart lives Joe. 4 And he's got a roommate. They're renting a 5 house together. And they're not living 6 together as a family unit. They're in no 7 way involved with one another except as 8 roommates and they are in a dispute over the 9 lease. 10 Joe keeps bothering his roommate. He 11 won't go way. The roommate is trying to 12 throw him out. The roommate sues to find 13 who's got the right to be in the house. Who 14 has the lease and I want this guy to quit 15 bothering me, judge. And the judge makes a 16 preliminary determination that the roommate 17 is the one who owns the lease. Has the 18 leasehold interest in the house and not only 19 tells Bob to get his stuff and get out of 20 the house, but tells Bob to stay 100 feet 21 away from the house because Bob is such a 22 pill and such a pain, okay. 23 There is an injunction. A civil 24 injunction has been entered, which among its 25 other provisions whatever the basis for it, . 570 1 requires somebody to stay 100 feet from this 2 house, okay. 3 Now, Joe's mom lives next door, well 4 within 100 feet of the house. Joe is 5 prohibited from going there, obviously, if 6 it's within 100 feet. The injunction means 7 what it says and Joe cannot go there. And 8 neither by operation of rule 1.610 can Joe's 9 agents, attorneys, etcetera, etcetera, 10 etcetera go to Joe's mom's house, whoever 11 those people might be. 12 Well, Joe hires me to represent him. He 13 wants me to go to a full blown trial on this 14 lease issue. He wants back in that rental 15 house. And guess who lives on the other 16 side of the house? My mom. 17 The question is, does the injunction 18 mean that I can no longer visit my mom at 19 her house. Because I'm Joe's attorney and 20 my mom's house is within 100 feet of the 21 property from which Joe is expressly barred 22 and the language of the injunction on its 23 face extends to attorneys, agents, servants, 24 etcetera, etcetera, etcetera, etcetera. 25 Well, there is one case that deals with . 571 1 that in Florida and it cites to federal law 2 and there is as I said, a boat load of 3 federal law on what that means and as I 4 said, I'll make the argument first and then 5 maybe leave you the case law if you have 6 questions about doctrine. It may be 7 something that you're familiar with. 8 What the doctrine is and what it boils 9 down to is this. Mere present or former 10 association is inadequate to bring a person 11 who is not a named party within the 12 prohibitive or mandatory scope of the 13 injunction. 14 In order for a person who is not named 15 as a party and has not prior to violation 16 been brought within the jurisdiction of the 17 court by service of process within the power 18 of the court to punish by contempt of 19 violation, that person must be either 20 legally identified with a named served 21 party. That is it must share, that person 22 or entity must share legal identity or that 23 person must aid or abet the named person in 24 his own violation of the injunction. 25 The principle as it's been enunciated by . 572 1 the federal court under which this extension 2 has made it very specific. It is to prevent 3 a named party who is clearly bound by the 4 injunction from accomplishing by indirection 5 or subterfuge that which is prohibited from 6 accomplishing directly by the terms of the 7 injunction. 8 Now, what you have that Scientology is 9 attempting to do in this particular 10 proceeding is to claim that this injunction 11 because of the mandatory language -- 12 mandatory is the wrong word. Because of the 13 required language under Rule 1.610 applies 14 to everyone who is affiliated with a named 15 respondent party and that quite simply isn't 16 the law. And there is a couple reasons for 17 this. 18 In the first place, you could, if we 19 look at this -- the law as I say requires 20 legal identification of which there is no 21 evidence whatever. I mean, that's a term of 22 art. It doesn't mean that a lawyer said 23 you're identified with them. It's legal 24 identification and there is significant 25 amount of gloss on it in the federal cases . 573 1 saying that this means someone identified 2 with a named party over whom the court has 3 jurisdiction that it may fairly be said that 4 through controlling their involvement in 5 litigation the unnamed party has fairly had 6 his day in court. 7 What they talk about is officers of a 8 corporation who have appeared in court as 9 the representative of the corporation during 10 the litigation leading to issuance of the 11 injunction. 12 That's an example of this kind of legal 13 identification. There is no evidence of 14 that with respect to any of the individuals. 15 Aiding or abetting a named person in his 16 own violation: An example. If Mr. Minton 17 had a serious case of Smart Alec and said, 18 look, I can't picket directly in front of 19 the Ft. Harrison. Here's what I want to do. 20 Mr. Merrett, you look like a sturdy lad. 21 I'll climb up on your back if you hold a 22 picket sign and I'll steer you with my 23 heels. If I carry him down there so he was 24 picketing, if I aided and abetted his 25 violation, if I did for him or help him to . 574 1 do that which he is prohibited from doing, 2 then clearly I fall within the ambit of that 3 prohibition. 4 If, on the other hand, he instructs or 5 directs me. If he says you know what, I'm 6 not allowed to harass Scientologists, find 7 out where Ben Shaw lives, get an electric 8 bullhorn and stand under his window all 9 night and holler. That's -- I'm under the 10 injunction. Anybody is. Your bailiff is, 11 your assistant, but what Scientology has 12 attempted to do is to bootstrap that 13 language into a finding that anybody who is 14 critical of Scientology and knows Mr. Minton 15 or comes and goes out of the Lisa McPherson 16 Trust property falls within that prohibition 17 and that's not the law. 18 And if you think about it, the reason 19 that it is particularly poignant in this 20 case is that all of the behavior involved is 21 individual, personal behavior based on 22 findings of the court with respect to the 23 conduct of these specific named individuals. 24 In other words, there is not a way for 25 me -- I'm going to pick somebody. There is . 575 1 not a way for whoever is getting on the 2 elevator on the first floor right now to 3 picket for Bob Minton. The only way for Bob 4 Minton to violate the injunction is by 5 picketing or going within ten feet of a 6 Scientologist. 7 If the case that they have presented to 8 you has any meaning, then that means that 9 but for the clarification that you made, I'm 10 violating the injunction right now because 11 I'm now within about five feet of Mr. Shaw. 12 Even if I never -- even if I weren't 13 anybody's lawyer here, I've been to the Lisa 14 McPherson Trust. I've hung out there. I 15 think Scientology is a noxious entity. I 16 share those interests and beliefs with these 17 people. Therefore, according to 18 Scientology, that's enough. 19 Not according to the law. Not according 20 to the law. And this is I guess the best 21 example. 22 If Joe's brother thinks the world of him 23 and really wishes like hell the roommate 24 would get out and give Joe the house back 25 and is funding Joe's litigation, paid Joe to . 576 1 hire me, does that mean Joe's brother can no 2 longer go to his mother's house? No, it 3 doesn't. It doesn't. 4 As I say, I'll give you those cases 5 because it makes it very clear and this is 6 the conceptual point that I don't want to 7 attempt to use my limited skills to try to 8 lay it out for you at this point. I want to 9 give you the cases and let the court read 10 them, but the point is in order for a person 11 who is not named as a party to violate an 12 injunction, that individual has to be 13 causing or assisting in a violation by a 14 named party is what the case law says. 15 Otherwise, Judge, this goes on forever. 16 If Mr. Enerson is covered, Mr. Enerson's 17 barber is covered, because I'm sure that 18 Mr. Enerson's barber has heard Mr. Enerson 19 talking about Scientology and if 20 Mr. Enerson's barber one day wakes up and 21 says, you know, by God, I don't want this in 22 my town. I don't want this around here and 23 goes to picket in front of the Ft. Harrison, 24 we'll be back here if they're right. 25 Because, you know what? He's connected to . 577 1 Mr. Enerson, Mr. Enerson, by their theory, 2 is connected to the Trust or to Bob Minton 3 or however it is he's connected and that's 4 not what this injunction means. 5 If somebody puts Bob Minton in a 6 wheelchair and pushes him up to the front 7 door of the Ft. Harrison Hotel, whoever has 8 his hands on the handle is in violation of 9 the injunction. 10 People who simply like Bob Minton, like 11 the Trust, hate Scientology and picket, 12 don't fall within what prohibition. That's 13 the second point. 14 (Whereupon, a pause in the proceedings took 15 place.) 16 The third point is this; far simpler but 17 maybe more interesting. Scientology has 18 rested. There will be no more evidence 19 produced. 20 We are now at the stage for a motion for 21 judgment acquittal. They've had every 22 opportunity to present the cases they wanted 23 presented. They have certainly had the 24 assistance of able counsel of their own 25 choosing. . 578 1 This, as the court is aware, we 2 discussed this a while back, is criminal a 3 proceeding. In a criminal proceeding, if 4 you'll recall -- I believe -- actually I 5 know that this court has sat on the criminal 6 bench because I talked to a guy who is now a 7 judge in Jacksonville this morning who tried 8 one in front of a while back, several years 9 ago. He told me to bring my toothbrush, but 10 I don't know what he meant, but. 11 THE COURT: No, no, it was teddy bear. 12 Go ahead. 13 MR. MERRETT: There is an instruction 14 that you give that is confusing to a jury but 15 plain as day to a lawyer. It says: As to 16 every crimed charged there are two elements 17 what the State must prove. Number one, the 18 State must prove that the offense charged was 19 committed. I bet you know what number two 20 is. Number two is: Second, the State must 21 prove that the defendant is the person who 22 committed the crime. 23 Now, there is a lot of things that 24 become rituals or become so familiar as to 25 be wrote in a criminal proceeding are that . 579 1 way as a matter of folklore. Some of them 2 are that way because it's the law. One of 3 the things that we always hear is what? Can 4 you point out the man who robbed you? Yeah, 5 that's him over there. I need you to tell 6 us who he is. He is the man in the white 7 shirt wearing the red tie sitting next to 8 Mr. Jones. 9 In other words, you can't go, you being 10 a police officer, a civilian witness, the 11 Minute Market clerk, whoever, you can go all 12 day saying; Mr. Jones, the defendant, the 13 guy, Bob, whatever, all day long, talking 14 about what you saw in what you did. 15 However, that second prong is not 16 established except by direct evidence that 17 the individual, the person who is before the 18 court on those charges is known to and 19 identified by the witness, not as a person 20 who is named in the paperwork, but as the 21 person who performed those events, who did 22 those acts. 23 That's why we do it that way. He's the 24 man on the witness stand in the gray suit 25 wearing the white shirt and the red tie. . 580 1 Think harder, Judge. This is more 2 recent than the astonishing down spout 3 comment which brought us all to a halt. So 4 if you remember the down spout you remember 5 this. 6 You never heard that. You heard 7 videotapes identified as depicting what? 8 Names. That's Ms. Bezazian, that's 9 Mr. Enerson, that's Mr. Jones. 10 You heard witnesses sitting on the stand 11 saying Mr. Merrett did this, Mr. Minton did 12 that, Mr. Smith did that. 13 There was absolutely no evidence 14 whatever of which body belonged with those 15 names. That is a fatal, fatal flaw in any 16 criminal case. A failure to identify, 17 physically, specifically identify the 18 defendant as the person who has been 19 referred to in testimony, who has been 20 identified in exhibits and who committed the 21 acts that are complained of results in a 22 failure to meet that second over-arching 23 element of proving the defendant is the 24 person who committed the offense. 25 You didn't hear that about anybody. . 581 1 That can't be proved by inferences, its 2 can't be proved by pictures, it can't be 3 proved by Mr. Pope standing up and saying, 4 Judge, for Pete's sake. look at them. 5 They're sitting in the audience. You know 6 who they are. 7 Because you sit as the trier of fact, 8 you sit just as though you were a jury. And 9 that wouldn't be sufficient identification 10 for a jury and it's not sufficient 11 identification here. Nobody, except I think 12 me, has been identified. I believe 13 Mr. Kronschnabl said and who is that and he 14 said Mr. Whatever he said and then he said 15 Mr. Merrett. He's the one sitting right 16 there and he described not the all together 17 unfavorably, my clothing. But other than 18 that, it didn't happen. Nobody was 19 identified. Now, that was the third point. 20 Where I'd like to turn now is to the 21 actual text of the amended and consolidated 22 order to show cause and I will move I think 23 rather more briskly here because I think 24 I've, as to most of the points I intended to 25 make, laid out the analytical underpinning. . 582 1 The first allegation of the amended and 2 consolidated order to show cause is this: 3 On December 7, 2000 at or about 1:50 PM, 4 Bezazian was picketing on Ft. Harrison 5 Avenue side of the Church of Scientology's 6 Clearwater Bank Building, an area that is 7 not designated in orange on Exhibit A to the 8 injunction. 9 If you will recall the videotape, edited 10 as it was, unsure as its providence may have 11 been, the videotape showed her continuously 12 moving from somewhere up here, north of 13 Cleveland Street, along side the Lisa 14 McPherson Trust Building headed south and 15 crossing Cleveland Street. 16 She didn't stop and turn around. She 17 didn't go back and forth along side the 18 Clearwater Bank Building. She didn't go 19 back and forth in front of the Coachman 20 Building. She continued in transit from one 21 place to the next carrying her picket sign. 22 As I say, of the analysis underlying that I 23 believe already I've discussed exhaustively. 24 Secondly, and simply overwhelming with 25 absurdity is allegation, Paragraph B on page . 583 1 two: 2 On December 8, 2000 at or about 7:00 PM, 3 Ms. Bezazian walked in front of the 4 Clearwater Bank Building along the Cleveland 5 Street side. Let's stop right there. 6 We already know that is not a violation 7 of the injunction. Absent proof that 8 somebody went within ten feet of a 9 Scientologist, thanks be to God and Thomas 10 Penick, we can go anywhere he want to in 11 Pinellas County, provided we're not 12 picketing. 13 So we know the first part of that is not 14 a violation and a judgment of acquittal is 15 required. 16 Secondly, we have the capital offense, 17 she sat in at large Santa Claus chair that 18 is Church property and is inside the 19 property line of the Church's building. 20 Now, mysteries abound. We live in a 21 world of mystery and the mystery here is 22 what is the Santa Claus chair? What are 23 they for? For what purpose do you put, 24 right around Christmastime, a big red chair 25 in front of a building? . 584 1 Now, you heard no testimony that there 2 was anything in the chair. No nothing, 3 empty chair that she sat in. 4 What part of the injunction does she 5 violate, Judge? I looked and I looked and I 6 looked. I didn't see chair. I was sure 7 Santa Claus must be in there somewhere, but 8 he wasn't there either. 9 This is not a violation of the 10 injunction. The chair by all the evidence 11 was open and available to anybody that 12 happened to come by. 13 One assumes that the reason that you put 14 a Santa Claus chair out there is because you 15 either are or pretending to be welcoming to 16 the public and whoever happens to come by 17 and wants to get their picture taken in the 18 chair in front of the building in front of 19 the wreaths and all this business. That's 20 what they're there for, I think, unless 21 there is a Santa Claus it in which sitting 22 in the chair without Santa's permission is 23 bad if he's already in it. I'll agree with 24 that. 25 But it's an empty chair and there is no . 585 1 part of that injunction which is violated by 2 sitting in the chair or by going on the 3 porch, by trespassing Quare Clausum Fregit 4 by breaking the clothes of the Church. 5 That's not prohibited under the injunction. 6 They want to start filing common law 7 trespass claims, you know, I'll go get my 8 old code pleading book and we'll go to town. 9 But it's not a violation of the injunction. 10 Neither sitting in the chair nor being 11 inside the property line of the Church's 12 building, assuming that that's been proven. 13 Now off-duty police officer Larry 14 Harbert about whom you will hear a great 15 deal more later on maybe, it says off-duty 16 police officer Larry Harbert spoke to 17 Bezazian and told her she was violating the 18 injunction but she argued with him and said 19 she had not, even though she admitted that 20 she had sat the chair. 21 I looked and I looked and I looked, 22 Judge. I didn't see where you prohibited 23 people being mouthy with the police. I 24 didn't see where you mandated people's 25 behavior toward the police as though they . 586 1 lived in Romania. That is not a violation 2 of the injunction. 3 In fact, one of the good reasons for 4 staying in this country is that you can 5 pretty much say whatever you want to, to 6 whoever you want to. Certainly outside of a 7 courtroom you can. That does not prove 8 there was a violation and even if it was 9 proved, there is no violation. 10 Then it says: Bezazian, along with 11 Patricia Greenway and Mark Bunker, then went 12 onto the Watterson Street side of the 13 building and Ms. Bezazian stood in the 14 middle of the sidewalk blocking the Church's 15 staff who were going to and coming from 16 dinner and from moving freely along the 17 sidewalk. 18 Now, that raises an interesting point, 19 because what you did prohibit -- I just 20 couldn't leave that like that. What you did 21 allow is anybody can go anywhere they want 22 to provided that the ten foot rule is 23 obeyed. 24 What this raises is and it's being kind 25 of unfold upon study. It is bilateral in . 587 1 its requirement and bilateral in its scope 2 and it actually imposes very evenly 3 calculated bilateral obligations. 4 Here's the point. This is the east side 5 of Watterson Street. Clearly under the 6 terms of the injunction if you stand back to 7 what Mr. Avila said, this is the street, 8 this is the sidewalk, this is the building. 9 Clearly, if Mr. Minton decides that it's 10 the route he's going to take and remember 11 this. Mr. Avila said he turned the camera 12 back up on the seventh when they rounded the 13 corner because they went to the east side 14 which made him assume they were going to be 15 picketing otherwise they would have just 16 stayed on the west side; remember that. 17 But, if Mr. Minton decided that he was 18 going to walk down the sidewalk on the west 19 side of Watterson Street to get to wherever 20 he was going with nothing in his hand, not 21 doing anything. He's just out bopping 22 around town, clearly he has a right to do 23 that. 24 Now, Mr. Minton is coming this way and 25 Mr. Shaw is coming this way. Mr. Shaw goes . 588 1 to jail for blocking the sidewalk, right? 2 Contempt of the court, violation of the 3 injunction. Mr. Minton has the right to 4 transit. Forget the signs. Under your 5 injunction very clearly everybody's right to 6 free movement remains in tact except is for 7 what? Except for the ten foot rule. 8 Now, here come Mr. Minton and Mr. Shaw 9 coming face to face on Watterson Street. 10 Who has obligations and what are they? 11 Well, the way that you crafted this they 12 both have obligations and they have the same 13 obligation which is not to get within ten 14 feet of each other. 15 They can, Mr. Shaw can cross the street 16 and go where he's going. Mr. Shaw can go in 17 the building. Mr. Minton can turn around 18 and go back. He can go out in the street or 19 across the street, but you can't say that 20 either one of them is blocking the other 21 one's path because they both have a right to 22 walk on the street. 23 Now, if you think about this, think 24 about this, if being on what Scientology 25 says is the wrong side of Watterson Street . 589 1 is per se blocking the street, then you 2 better have your bailiff cuff Mr. Avila now 3 because you're going to want to deal with 4 him for standing in that alley on the east 5 side of Watterson Street, just standing 6 there like a roadblock. But you know what, 7 Judge. Nobody asked you to do that to him 8 because it's not a violation of the 9 injunction. 10 If we're coming down the east side of 11 the street and there really are 12 Scientologists getting on and off the bus on 13 the west side of the street and Mr. Avila is 14 standing over here, well, you know, he's 15 going to have to cross the street to abide 16 by the ten foot rule, but just standing 17 there when we come down here if there is no 18 reason not to, if there's nothing to stop us 19 from doing it under the terms of the 20 injunction, I think we're going to have to 21 cross the street if he's already standing 22 there. Because fortunately you have left 23 this a free country. 24 THE COURT: In other words, is it a 25 charge or a block? . 590 1 MR. MERRETT: Right. 2 THE COURT: Okay. 3 MR. MERRETT: That's the question and 4 the way it's set up, everybody has the right 5 to be there, everybody has the same 6 obligation to maintain their distance and you 7 can't say that by being in place X where even 8 under the injunction I have the right to be, 9 I am therefore blocking other people and in 10 violation of the injunction, because you know 11 what, Judge? It's that same back door 12 treatment about picketing and transit. 13 The attempt it to get you to read the 14 injunction in a way that actually prohibits 15 any of the respondents from physically being 16 on the street. Because if being on 17 Watterson Street is blocking the street and 18 makes the violation against Ms. Bezazian, 19 then any time that they are on a street 20 anywhere and a Scientologist -- I mean I 21 understand that presumably this would be a 22 better world if people had to step in gutter 23 when a Scientologists comes by. but that's 24 not what your injunction says. 25 That's what they're arguing to you and . 591 1 they're arguing that is she in contempt 2 because that's not what she did, but that's 3 not what your injunction says. 4 She's on the street, the Scientologists. 5 Come. They got the obligation to move just 6 like she would have the obligation to move 7 of she walked around the corner and they 8 were standing there. 9 Now, interestingly on that point if you 10 recall the videotape, we'll see that Officer 11 Harbert who I was gratified to see brought 12 his temperament to court with him, followed 13 her around the corner. After he, and I'm 14 not going to argue the merits of the 15 evidence or the credibility, but after they 16 had the discussion about the Santa Claus 17 chair on Cleveland Street, Ms. Bezazian, 18 Ms. Greenway and Mr. Bunker walked around 19 the corner onto Watterson Street and if you 20 watch the videotape you see Ms. Bezazian 21 walking down the street with Harbert right 22 behind her on the west side and he starts 23 talking to her and stops her there. 24 Now, the fact that she exercised 25 prudence and stopped when Officer Harbert . 592 1 wanted to talk to her and stayed there as 2 long as he was talking until he said, look, 3 let's go across the street, that puts her in 4 contempt of court. That's what they're 5 telling you. 6 She walked around the corner in an area 7 where she had a right to be with a policeman 8 for some ungodly reason right behind her. 9 She stopped, she talked to the policeman, 10 she crossed the street with the policeman 11 when the policeman said cross the street. 12 THE COURT: When you say crossed the 13 street, she crossed the road over to the east 14 side? 15 MR. MERRETT: Yes, sir, when he said 16 let's go over here to the other side of the 17 street. 18 THE COURT: Okay. 19 MR. MERRETT: Now, and the last sentence 20 again, which I can only assume was put there 21 strictly for inflammatory purposes, because 22 your injunction doesn't require people to be 23 polite to a policeman is, again, when Officer 24 Harbert told her she was violating the 25 injunction, she argued with him. . 593 1 That clearly does not form a basis, even 2 if true, for a finding of contempt, 3 consequently a JOA is required with respect 4 to that allegation. 5 The next paragraph deals with December 6 12 back at the driveway of the Coachman 7 Building. At or about 2:07 PM on 8 December 12, Bezazian picketed in the 9 entrance to the parking lot behind the 10 Church's Coachman Building. She then began 11 talking to the driver of the car in the 12 driveway, thereby blocking ingress and 13 egress to the parking lot entrance to the 14 Coachman Building contrary to the 15 injunction. 16 Now, I want you to just take a quick 17 look at that part of the Coachman Building 18 and its parking lot and then remind 19 yourself, if you would, about the videotape 20 and what you saw. 21 The -- I suddenly saw myself on my death 22 bed reciting street names in downtown 23 Clearwater. 24 What they're talking about occurred 25 right here at the driveway going into the . 594 1 parking lot behind the Coachman Building. 2 And just a couple points again. A lot of 3 the analysis of this dealt with up front. 4 If you watch the videotape they pick her 5 up as part of their general program of 6 surveillance, way back here on the other 7 side of Park Street. She and Mr. Jacobsen, 8 Mr. Jacobsen wearing a red or purple shirt, 9 if you remember. She was wearing a black 10 and white, like a Rob Roy plaid shirt. 11 They're coming across here. That's where 12 the videotape comes up or pick up. She 13 stops here, okay. 14 Actually they slow down first. She and 15 Mr. Jacobsen are walking slowly along her. 16 She stops. Mr. Jacobsen continues and I'm 17 not sure whether it's before or after the 18 car pulled in, but then you see, incredibly, 19 incredibly, Scientology with a boat of 20 lawyers and OSA staff sitting in here saying 21 that this is a violation of the injunction 22 and by God, Judge, we want you to do 23 something. Incredibly, they brought you a 24 videotape of a Scientology security guard 25 ride his bicycle within about two feet of . 595 1 her, of the viscous and dangerous Tory 2 Bezazian into whose proximity no one must 3 come. 4 So I think you certainly have to take 5 that into account in weighing all of this. 6 That they're bring you this evidence, for 7 what, I don't know, but it's real clear that 8 this injunction is not something that they 9 actual want enforced or they would have put 10 that security guard's head on a platter and 11 brought it in here for you, but they didn't 12 do that. The security guard, who testified, 13 testified that he knowingly violated the 14 injunction because he drove on the sidewalk 15 coming within ten feet of Ms. Bezazian. 16 The car stopped. We don't know who was 17 in the car except that he's not one of the 18 Scientologists who is known to the witness 19 who testified about the event. We don't 20 know that the person was or was not a 21 Scientologist. We don't know any of that. 22 What we do know if you look at the time 23 signature on the tape is that for 24 approximately 47 seconds Ms. Bezazian 25 appears to carry on a conversation with that . 596 1 person. 2 Now, you don't know whether the car 3 stopped before she -- actually you do know 4 because she walked towards the car after it 5 stops. We don't know what the subject of 6 the conversation was. We don't know what 7 was going on. What we do know is that she 8 walked up there, the car drove off and then 9 what, Judge? What happened? 10 THE COURT: The van came in. 11 MR. MERRETT: The van came in. Before 12 that though, the best part, while she had the 13 driveway blocked so that nobody could come or 14 go, a UPS van as big as a house drove in the 15 driveway. Now, a UPS van that we know to a 16 certainty was as big as or bigger than the 17 Scientology cant that they're saying were 18 blocked and couldn't get in. 19 Now, here's the thing. If a UPS truck 20 could get past the green car, and if you 21 notice, it's moving at a real good clip. 22 Makes me wish I was a PI lawyer, but it's 23 moving at a good clip sailing through here, 24 past the green car. 25 What they're asking you to believe, . 597 1 though, is that the driveway was blocked so 2 that the can that was smaller couldn't 3 follow the same route. And interestingly -- 4 well, actually that's closing argument and 5 I'll save that about what is and isn't on 6 these videotapes and who did or didn't clip 7 them up. 8 But, it's clear the driveway wasn't 9 blocked. It was open to transit by a UPS 10 van. Once the van passes, the green car 11 passes, the Scientology van pulls in or I 12 mean the UPS truck, the green car leaves, 13 the white van pulls in. What does 14 Ms. Bezazian do? 15 They said she was picketing in the 16 entrance so we know that what she much have 17 done was step out in the driveway and walk 18 back and forth, right. Or that she was 19 blocking the entrance so we know she must 20 have stood in the entrance, right? 21 No. What she did was she walked 22 straight on down Ft. Harrison Avenue. 23 That's what she did. 24 Now, when you hear the response to this, 25 when you hear the response, Judge, your . 598 1 injunction says right here keep back ten 2 feet. There is that driveway. Keep back 3 ten feet, and you know what, Judge, she 4 ain't ten feet from the driveway. She's 5 right up there on the edge, leaning in that 6 window talking to that car. 7 I just want you ask her one question, 8 Judge. Can you teach her how to levitate, 9 so she can get from the corner of Park and 10 Ft. Harrison to the corner of Cleveland and 11 Ft. Harrison without passing through that 12 driveway or without walking anywhere on the 13 diagram that isn't marked in orange and you 14 can't do it. She is in transit. 15 People are clearly able to pass across 16 those areas. What they can't do is walk 17 their picket circle through the driveway, in 18 the driveway. They can't churn in the 19 driveway so the traffic can't pass. 20 Again, if you look at the injunction, 21 the last allegation that paragraph is this: 22 Following this incident, Bezazian -- oh one 23 other thing I find real interesting is that 24 the order to show cause which was drafted by 25 Scientology lawyer's predicated on . 599 1 affidavits and a motion prepared on behalf 2 of Scientology says that she was blocking 3 ingress and egress. And just as a matter of 4 keeping the court apprised of whether or not 5 we're being real careful about what we he 6 say, Mr. Avila testified that that is only a 7 point of ingress. And, you know, this is 8 serious business, Judge. I think you ought 9 to keep that in mind when you decide what's 10 going on. 11 Following this incident, Bezazian 12 crossed Cleveland Street to the north and 13 was picketing in front of the Clearwater 14 Bank Building on the Cleveland Street side 15 contrary to the injunction. 16 This is another hour and it's another on 17 where the evidence does not support any 18 finding of a violation. 19 If you will recall the videotape, this 20 is the incident at which on that corner 21 Ms. Bezazian spoke to a red-headed female 22 police officer. They appear to carry on 23 some conversation. Mr. Jacobsen is standing 24 of a little to the officer's left, kind of 25 behind Ms. Bezazian. . 600 1 This is the one where the officer 2 testified, I stopped her when she crossed 3 the street and said, hey, if you're walking 4 through here you need to hold your picket 5 signs down. What did she do, officer? I'm 6 sure you remember what the officer said she 7 did. She held her picket signs and walk 8 off, headed back toward the Trust. 9 There is no evidence that she was 10 picketing or in violation of the injunction 11 or doing anything other than passing in 12 transit back to the Trust. 13 With respect to Mr. Henson, he is not a 14 named party and the prior argument regarding 15 the aiding and abetting issue -- 16 THE COURT: Hold on just a minute. Let 17 me get caught up with you on your argument 18 regarding Ms. Bezazian and Paragraph One, 19 parts A, B, and C. Hold on just a minute. 20 MR. MERRETT: Yes, sir. 21 (Whereupon, a pause in the proceedings took 22 place.) 23 THE COURT: Let me do this. 24 MR. MERRETT: Yes, Your Honor. 25 THE COURT: We've been going an hour and . 601 1 ten. Let's take a ten minute break. 2 (A short recess took place after which the 3 proceedings continued.) 4 THE COURT: All right. Let's go to 5 paragraph two, Henson. I'm sorry. Wait a 6 minute. Let's get everybody round up. 7 (Whereupon, a pause in the proceedings took 8 place.) 9 Proceed. 10 MR. MERRETT: Thank you, Your Honor. 11 Turning now to page three of the amended and 12 consolidated order to show cause, paragraph 13 2A are the allegations against Keith Henson. 14 The first is a generic allegation that 15 starting before and continuing after Henson 16 was served with the injunction he picketed 17 in areas adjacent to the Church's property 18 not marked in orange on Exhibit A to the 19 injunction. That obviously is sufficiently 20 vague on two fronts as to require a judgment 21 of acquittal. 22 Number one, it applies both before and 23 after there is even an arguable suggestion 24 that he was subject to personal jurisdiction 25 of the court; that being prior to service of . 602 1 anything. 2 This second is that it merely says -- it 3 doesn't specify any property. However, it 4 does go on then to specify that on 5 December 1 he picketed in front of the 6 Ft. Harrison Hotel for 30 to 40 minutes at 7 four or five different times. 8 Let's start right there. This is not 9 keyed into any knowledge of the injunction. 10 In other words, it does not allege, nor 11 has it been proven that he did so with 12 actual knowledge of the injunction or, and 13 again I won't replow the same ground, but I 14 would respectfully direct the court's 15 attention to my argument regarding the law 16 on agency and scope of an injunction as it 17 applied to persons who are not named parties 18 or not named in the injunction. 19 First off, we don't know whether in that 20 next sentence, that December 1 sentence 21 where it says he picketed in front of the 22 Ft. Harrison Hotel of 30 to 40 minutes at 23 four ot five different times, whether that 24 was supposed to have been before or after. 25 Secondly, because of an interesting and . 603 1 I suspect probably deliberately misleading 2 allegation on the part of Scientology, we 3 don't know what in front of the Ft. Harrison 4 Hotel building is supposed to mean, because 5 you got another order to show cause where, 6 pursuant to whatever policy drives these 7 things, Scientology describes the east side 8 of the 200 block of Ft. Harrison, across the 9 street from the hotel, in exactly the same 10 words "in front of the Ft. Harrison Hotel", 11 so that is inherently duplicitous given the 12 source of the allegation and consequently 13 meaningless. 14 However, assuming that what they mean is 15 that he was on the Ft. Harrison side of the 16 hotel as depicted in the videotape, the 17 question is whether he was within the scope 18 of the injunction and you have no evidence 19 of that. 20 You have purported evidence, again part 21 of the OSA film chop shop, cut down this 22 time to a sheet of paper, that purports to 23 be him receiving money on November 30 under 24 some circumstances from Robert Minton. 25 We don't know what it was for. We don't . 604 1 know if Minton owed him money. There is no 2 evidence at all regarding the nature of that 3 transaction. 4 What evidence there is makes it pretty 5 clear that what the transaction was doing 6 was yanking Antonio Avila's chain and giving 7 Mr. Shaw something to chuckle at when he 8 looked at the tape. Because, as you see, 9 Mr. Minton, Mr. Henson and the other 10 individual are laughing and calling Antonio 11 Avila's attention to what they're doing. 12 Holding up the money, telling them to come 13 get some as the money is out passed. You 14 see on tape that at least one of the guys, 15 not Mr. Henson, but the person, handed the 16 money back. 17 Now, again this is an OSA tape. And 18 Mr. Avila told you that, like every other 19 tape Scientology brought in here, it's been 20 cut down by somebody he doesn't know at the 21 time he's unaware of for reasons not 22 disclosed to him, so we don't what happened 23 after they, whether Mr. Henson returned the 24 money. 25 In any event, that's all that you have . 605 1 is Mr. Henson picketing on December 1, not 2 specified before or after service. 3 We do have Mr. Bellavigna throwing 4 paperwork on the ground. We did have 5 Ms. Colton chasing Mr. Henson back and forth 6 across Ft. Harrison Avenue and throwing the 7 papers on the ground. We did have 8 Mr. Henson saying don't come within ten feet 9 of me, none of which establishes a 10 connection between him and any named party 11 sufficient to meet that test sufficient to 12 put him in a position any closer to the 13 ambit of the injunction than is whoever 14 sells Mr. Minton his blue shirts. That 15 person is connected to him too and he gives 16 that person money. And Scientology would 17 have you believe on that basis that the 18 injunction extends to them. 19 Essentially, the allegations as to 20 Mr. Henson are simply that he picketed in 21 areas which were not orange areas. You have 22 a complete want of evidence in this trial 23 regarding any connection to the Lisa 24 McPherson Trust, to Mr. Minton or any other 25 named defendant or named respondent. . 606 1 The same argument applies to the 2 Coachman Building allegation. 3 Now, turning to the next set of 4 allegations in paragraph three, beginning on 5 page three. 6 THE COURT: Just a minute. 7 MR. MERRETT: Yes, sir. 8 (Whereupon, a pause in the proceedings took 9 place.) 10 THE COURT: Okay, paragraph three. 11 MR. MERRETT: Yes, sir. Tampering with 12 the spy camera. If you recall, these cameras 13 are mounted in a junction box. We have an 14 exhibit. I forget the number of it, but it's 15 the, I think folio size. It's the large 16 sheet with the photograph of the camera on 17 the side of the rat bait building and the 18 Clearwater Bank. 19 THE COURT: Number seven. 20 MR. MERRETT: Can I see that for a 21 second? Now, if you notice in this 22 photograph, Your Honor, the junction box 23 which was identified a being a regular metal 24 junction box with knock-outs around the sides 25 of it, what building is it painted to match? . 607 1 It's painted the color of the rat bait 2 building. It's not and painted the color of 3 Scientology's building. Just something to 4 keep in mind while we about this. 5 The allegation here is that myself and 6 Mr. Minton in the area next to the northeast 7 end of the bank building, set up a ladder, 8 climbed up a ladder, twisted the camera, and 9 took photographs of the camera. That's the 10 allegations as to Mr. Minton and myself. 11 Of you will recall, Mr. Avila testified 12 first he said he didn't know if the ladder 13 was set up on the Clearwater Bank Building 14 side or in front of the Clearwater Bank 15 Building or in front of the rat bait 16 building. 17 That was the first piece of testimony, 18 and if you look at the videotape you'll see 19 that pretty much throughout it, maybe all of 20 way through it, but pretty much throughout 21 it the ladder is set up north of the north 22 wall of the Clearwater Bank Building. 23 That's the first point. 24 The second point is that it doesn't make 25 any difference where it was. This is no . 608 1 prohibition in the court's injunction 2 against being present anywhere in Clearwater 3 with or without a ladder, unless you are 4 covered by the injunction and within ten 5 feet of a Scientologist or are covered by 6 the injunction and engaging in expressive 7 First Amendment conduct. So, 8 notwithstanding whatever Scientology's 9 phobia about it is, carrying ladders around 10 downtown Clearwater remains lawful even 11 under the injunction. 12 Wherever it was, there is no violation 13 in having placed it there. 14 Secondly, there has been and there can't 15 be any, regardless of where the camera was 16 situated at that time, as the court is 17 aware, injunctions are to be strictly 18 construed. Because the court ultimately 19 acts as a one-man legislature in declaring a 20 conduct unlawful when it issues and 21 injunction. They have to be precisely 22 construed. What is prohibited is only what 23 is said clearly is prohibited. Everything 24 else is not prohibited. 25 It's a mandatory injunction, what must . 609 1 be done in only that which you clearly 2 stated, period. 3 In this case what they apparently are 4 alleging is some species of trespass by the 5 touching of the camera. That may well be. 6 Again, we'll get out our field code 7 books and go to town on trespass on the 8 case. Trespass Barrie Clausem, whatever is 9 the trespass du jour, but there is no 10 violation of the injunction. 11 There is no portion of this injunction 12 that prohibits touching church property. 13 There is no portion of it that prohibits 14 being near church property. There is no 15 portion of it that prohibits being on church 16 property. 17 Now, any or all of those things might be 18 unwise things to do. They might be things 19 that would not make Your Honor happy for us 20 to do, but none of those things are 21 prohibited by your injunction. And what is 22 expected, what is required is obedience on 23 the injunction. That's all. 24 If they think they've got a trespass 25 case, you know, they have not been . 610 1 successful. They have not been bashful 2 about trying to set up the police and bring 3 these people into court on criminal charges. 4 They can go talk to Bernie McCabe. 5 It is not a violation of any portion of 6 the injunction and the test really is, 7 Judge, can you show the specific portion of 8 the injunction that was violated? Was it 9 harassment? 10 The problem is and again I won't go into 11 the law on it this time. You're probably 12 familiar with it and you can probably lay 13 your hands on it a New York minute, 14 harassment always involves, every definition 15 that you will find anywhere in statute or in 16 case law, involves what? Engaging in a 17 course of conduct -- forget whether it's a 18 course of conduct. Look at the effect. 19 It's a course of conduct that results in 20 the infliction of significant emotional 21 distress. Scientology is a corporation. 22 You can't inflict emotional distress on a 23 corporation. Legally, as a matter of law, 24 you cannot. 25 So, we know it doesn't fall under . 611 1 harassment and I'll come in a minute to the 2 ten foot rule, but see no evidence even from 3 Mr. Avila regarding Scientologists being 4 anywhere in view within ten feet, anywhere 5 in Mr. Avila's view within ten feet and 6 certainly nowhere within view of the people 7 on the sidewalk within ten feet. 8 You don't see any picket signs. You 9 don't hear any chanting. You see no 10 expressive First Amendment conduct which 11 would fall within the ambit of the 12 injunction. 13 So, if this is supposed to be a 14 violation which is predicated on something 15 other than the clearly noncognizable 16 allegation that there was a criminal 17 trespass, because again, whatever they think 18 about whether it was or was not a crime, 19 unless it is a crime which is coincidentally 20 prohibited by your injunction, as for 21 example smacking somebody in the face would 22 be if the person were in the protective 23 class, it's not a violation of the 24 injunction to violate any other law. It's 25 not cognizable in this proceeding. . 612 1 The only other thing that we are left 2 with is the proposition either that some 3 entrance was blocked, the sidewalk was 4 blocked or someone's passage was blocked. 5 Well, Mr. Avila testified quite clearly 6 that this was a bread delivery and that it 7 was a bread delivery that was being made 8 from a truck into the bank building, or from 9 bank building into the truck. 10 The bakery that came from, based on 11 Mr. Avila's testimony, was not a special 12 Scientology bakery staffed by 13 Scientologists. If you remember, I asked 14 him that. And, and if you remember the 15 videotape, the bread delivery was made. 16 The person operating the bread truck was 17 not from the L. Ron Hubbard Bakery, walks in 18 the door. You see him come from the truck 19 into the door with a handcart loaded down 20 with baskets of bread and then you see him 21 come back out the door and load the empty 22 baskets back into the truck get in the 23 truck. 24 You don't see anybody blocked anywhere 25 and this brings us back to the point that I . 613 1 was making about blockage. Is not a matter 2 of Scientologists or people who are named in 3 this injunction having the right to go 4 wherever they want to and throw other people 5 off of the sidewalk. It is a bilateral 6 obligation. 7 Now, I suppose if we permanently 8 stationed someone on a sidewalk that was a 9 regular point of transit, if anybody; I, 10 Mr. Minton, anybody permanently stationed 11 himself or herself in a position that 12 prevented transit in a place regularly use, 13 that would probably be a violation, but 14 there is no primacy granted anybody to the 15 use of the sidewalk. And there is no 16 evidence by anyone having knowledge -- if 17 you remember you struck Mr. Avila's 18 incompetent testimony that there was a 19 Scientologist somewhere inside the building, 20 maybe within ten feet. 21 There is no evidence that there was any 22 Scientologists within ten feet. There was 23 nobody on that tape other than Mr. Avila's 24 voice who was identified as being a 25 Scientologist, so what they're asking you to . 614 1 do, Judge, is premise a finding of criminal 2 contempt on the hypothesis that a 3 Scientologist might have decided to come 4 down the sidewalk. And even if you do adopt 5 a Scientologist as king of the of MEST 6 universe theory. 7 THE COURT: The what? 8 MR. MERRETT: The matter, energy, space 9 and time, the physical universe, that they 10 have the right to throw people off the 11 sidewalk, that's still not a violation unless 12 somebody shows up. 13 You can't hypothetically violate the 14 injunction, so blockage doesn't work. The 15 ten foot rule doesn't work. There is no 16 violation of the injunction. 17 Now, the most -- let's see, Where were 18 we here. Clearly, clearly, and I would 19 suggest the court could do that right now, 20 with respect to -- I'll start a the bottom 21 of page four, with respect to Frank Oliver, 22 the damning testimony elicited from 23 Mr. Avila regarding his horrifying violation 24 of your injunction is that he was standing 25 there on the sidewalk while the camera was . 615 1 photographed. In fact I believe the quote 2 was, oh, he was there too. Standing in 3 front of the sidewalk in front of the rat 4 bait building, that's all that was testified 5 that he did. 6 Secondly, Rod Keller. 7 THE COURT: Wait a minute. 8 MR. MERRETT: Yes, sir. 9 (Whereupon, a pause in the proceedings took 10 place.) 11 THE COURT: Okay, Rod Keller. 12 MR. MERRETT: Rod Keller, same 13 testimony. Oh, he was there and I think he 14 took pictures too. So you're supposed to 15 judge him in criminal contempt because he 16 stood on the public sidewalk in front of the 17 rat bait building and took photographs. 18 THE COURT: Just a minute. 19 (Whereupon, a pause in the proceedings took 20 place.) 21 Okay. 22 MR. MERRETT: Then you have Grady Ward, 23 Jesse Prince and Heather Bennett, each of 24 whom is alleged to at some point to have 25 touched the magic ladder of contempt. And . 616 1 that is the essence of the allegation against 2 those three people. 3 THE COURT: Now that's Grady Ward, 4 Heather Bennet and Jesse Prince? 5 MR. MERRETT: Yes, sir. However, prior 6 to touching the ladder it is alleged that 7 they joined Mr. Oliver and Mr. Keller in the 8 transgression of standing on the sidewalk in 9 front of the rat bait building while 10 Mr. Minton and I went up and down the ladder. 11 Now, remember Judge, you're sitting as a 12 criminal judge right now. This is what they 13 brought here. 14 Adjudicate Heather Bennett guilty of a 15 crime because she stood on a sidewalk and 16 then helped fold up a ladder. Adjudicate 17 Rod Keller because he stood on a sidewalk 18 and took a picture, and I suspect I'm not 19 the only one here to appreciate the irony of 20 Scientology complaining about people taking 21 pictures. 22 (Whereupon, a pause in the proceedings took 23 place.) 24 THE COURT: Next. 25 MR. MERRETT: That is everybody that's . 617 1 named in that paragraph. The only other 2 thing I'll point out is if you watch the 3 videotape what you will see that the 4 conclusion is that after the officer that 5 Mr. Pope represented to you through the 6 pleadings order Mr. Minton and I leave the 7 area, after he came over and you hear him say 8 on the videotape, oh, okay, are you all about 9 done? Oh, is that the camera? After you 10 hear him say those things that Mr. Pope told 11 you are actually a quote to leave or 12 instructions and order to leave, with the 13 officer standing there watching he said I 14 think I'll just stand here and make sure 15 everything is okay until you all are done. 16 You see the ladder moved so the reverse angle 17 can be taken on the picture. The ladder is 18 still on the public sidewalk. Then you see 19 the ladder folded up. This is the time 20 approximately when Mr. Prince and Ms. Bennett 21 are said to have run afoul of the law. 22 That's what you need keep in mind, 23 Judge, is that they brought Officer Harbert 24 in here to explain all about the violations 25 of the injunction because of course he knows . 618 1 and they've suggested to you absurdly that 2 cussing at Officer Harbert is contempt of 3 court, but apparently they don't respect 4 Officer Houks's judgment quite that much 5 because he stood there -- you know what they 6 did, Judge. What they did, Judge, he was 7 there talking to us, standing at the foot of 8 the ladder where Heather Bennett was 9 standing, where Frank Oliver was standing 10 and they forgot to name him. They forgot to 11 bring him in here on contempt and he was 12 standing there watching, too, Judge. And he 13 was talking to us. We don't know what he 14 thinks about Scientology, but I bet we could 15 find out. 16 The question, Judge, is what are they 17 doing with your time? None of that is a 18 violation of the injunction. 19 There is no portion of the injunction to 20 which you can apply the evidence that was 21 presented and conclude there was a 22 violation. 23 Turning to the next page, page five 24 paragraph C, that one again in addition to 25 requesting judgment of acquittal, I would . 619 1 ask the court to reserve jurisdiction to 2 impose sanctions. 3 THE COURT: Wait a minute. Where is 4 this one? 5 MR. MERRETT: Top of page five. 6 THE COURT: Okay. That's three, 7 paragraph 3C? 8 MR. MERRETT: Yes, sir. In addition to 9 moving for judgment of acquittal because no 10 evidence was adduced, I'll ask the court 11 reserve jurisdiction to impose sanctions 12 against Scientology and/or counsel for having 13 brought that and having adduced no evidence 14 whatever in support of that. 15 THE COURT: Just a minute. 16 (Whereupon, a pause in the proceedings took 17 place.) 18 Okay. 19 MR. MERRETT: Turning, and again 20 obviously that's a twofold argument. They 21 produced no testimony, no evidence, no 22 nothing regarding that, consequently a 23 judgment of acquittal is mandatory. 24 Additionally, having brought it and done 25 nothing, we're asking the court reserve . 620 1 regarding sanctions. 2 Moving on paragraph D relating to 3 obstruction of a process server, there are 4 only a few brief points that need to be 5 made. Again, I will cite the law to you in 6 a cursory fashion and leave it to you to 7 look up. 8 First of all, despite the protestations 9 of Ms. Colton and Mr. Kronschnabl, you won't 10 find any law authorizes people to trespass 11 in serving process. You can't go into any 12 place of business that you want to. 13 As I mentioned at one point to the court 14 earlier, you can't walk into the 15 proctologist's office and serve the patient 16 on the table. You don't have the right to 17 walk up to the communion rail and serve the 18 priest. You don't have the right to go 19 where you want, when you want without regard 20 to the people's property rights in order to 21 serve process. 22 The Florida law specifically provides in 23 Chapter 776 that any force short of deadly 24 force may be used to eject a trespasser from 25 real property, and more to the point, . 621 1 anything that -- two points. The injunction 2 was in effect, prima facie without any 3 process server exception or exception having 4 been written into it at the time of both of 5 these events. 6 There has been no testimony established 7 that the Mr. Kronschnabl's event occurred 8 after entry and service of the order of 9 December 1. 10 The order on its face prohibits those 11 people from coming within ten feet. 12 Mr. Bussard, again we're building an 13 interesting world here with interesting 14 repercussions if people have the right to go 15 exactly where they want to to serve process. 16 Because, you know, there are people that 17 will do all kinds of things for $22. And if 18 people have an absolute right to interrupt 19 dinner, if people have an absolute right to 20 loiter in a business -- I mean this is not a 21 dime store, this is not a restaurant where 22 people are coming and going. You don't have 23 a right to be a particular place. You do 24 have a right to serve process, but you don't 25 have a right to trespass. . 622 1 Additionally, the actions alleged in 2 paragraph D on page five and six are not 3 covered by the terms of the injunction at 4 all. And the order to show cause is 5 directed solely to a violation of the 6 injunction. 7 In short, while I am sure that every 8 process server goes to bed at night dreaming 9 that he or she has the right to go where he 10 wants to do and do as he pleases, there is 11 no law for that and there is no law that 12 says they're exempt from Chapter 810. 13 As to the order to show cause regarding 14 contempt, this is as to Minton, Lerma, 15 Enerson, Bezazian and Gogolla portion. 16 THE COURT: Okay. 17 MR. MERRETT: I'll start with probably 18 the simplest one. Well, I'll start with the 19 first one that happens to be the simplest 20 one. 21 On the first page of that order to show 22 cause, paragraph A directed at Randy 23 Enerson, it says that he intentionally 24 violated the injunction by picketing in the 25 prohibited zone in front of the Clearwater . 623 1 Bank Building. 2 Again, Your Honor, I spoke at some 3 length about the fact that the court didn't 4 prohibit walking in Clearwater, the court 5 didn't prohibit picketing. The court 6 obviously cannot have -- cannot is probably 7 the right word, too, but it's obvious that 8 if the court intended to did prohibit 9 picketing all together, that's what you 10 would have done. Not said you can picket in 11 this place, but you can't carry picket signs 12 to get there or to get back. 13 I guess maybe you could draft an order 14 that people could go down there with blank 15 cardboard and poster paint and leave it 16 there and walk back, but that's not it says. 17 If you look at the videotape that was 18 entered on that point, what you see is there 19 is a fellow walking, holding a sign, smoking 20 a cigarette. There is a woman walking with 21 sign like this that's in front of her face. 22 There is Mr. Enerson with a sign on his 23 shoulder walking along smoking a cigarette 24 and there is another woman following along 25 behind them who stops to talk to somebody. . 624 1 And the testimony was from the witness who 2 made the original videotape that they did 3 what? Went right around the corner and 4 right back to the LMT. 5 They didn't turn around and retrace 6 their steps in front of the Cleveland Bank 7 Building, they weren't chanting in front of 8 the Cleveland Bank Building, they weren't 9 doing anything in front of the Clearwater 10 Bank Building except walking and here's the 11 thing, Judge. You got to keep this in mind 12 when you consider anything that happened 13 around there. 14 The door that everybody comes and goes 15 through at the LMT as you've heard is on 16 Watterson Street, down the block and past 17 the Clearwater Bank Building. 18 Now, what they're complaining about in 19 this particular instance, what they want you 20 to convict Randy Enerson of a crime for is 21 for walking across here on his way to this 22 door, because this are here that I'm marking 23 with an X is not an orange zone. 24 You know what, Judge. They're asking 25 you to convict Tory Bezazian because walking . 625 1 to and from a picket she walked here which 2 is not an orange zone. So we know already 3 because Scientology says so, that you can't 4 walk to or from a picket here and we know 5 because Scientology says so that you can't 6 walk to and from a picket here. 7 What we also know because of what 8 Scientology has told us about these other 9 places, this ain't an orange zone either and 10 you can't walk there to and from a picket in 11 front of the Coachman Building on Cleveland 12 Street. 13 You know what else, Judge. The other 14 side of Ft. Harrison is on the diagram and 15 you no know what? It ain't an orange zone 16 so Scientology says, Ben Shaw says, Wally 17 Pope says you can't walk to and from a 18 picket. That's not what Judge Penick said, 19 but that's what they're doing. 20 Convict Tory Bezazian for walking up 21 here, convict Randy Enerson for taking the 22 alternate route and, by the way, if you'll 23 just look at your map and reserve the right 24 at any time to seek conviction of anybody 25 from taking any route back to LMT if you . 626 1 walk through areas that aren't orange zones. 2 These allegations are not that they were 3 hooting and hollering, lopping spit balls, 4 doing anything. They're walking. And you 5 heard Mr. Avila say where they went. There 6 is no evidence of violation of the 7 injunction. It's merely transit. 8 Page two, paragraph B. 9 (Whereupon, a pause in the proceedings took 10 place.) 11 I'll deal with this one very briefly 12 because I suspect Mr. Howie will do the 13 heavy lifting. 14 Quite simply the allegation is that by 15 running away from a process server and he 16 lied about what you say to her, you violate 17 the injunction. That's it. 18 The allegation is that Mr. Minton, 19 having again apparently by the use of OT 20 powers been spotted driving onto a Lisa 21 McPherson Trust street, was pursued to his 22 door and therefore should be convicted of a 23 crime. 24 That's clearly not a violation. Even if 25 you assume that it is obstruction of the . 627 1 process server, a violation of Chapter 843, 2 even if you assume any of those things, it 3 apparently annoys Scientology because you're 4 supposed to stand still for their process 5 server and stand up at the supper table for 6 them, but it's not a violation of the 7 injunction. 8 (Whereupon, a pause in the proceedings took 9 place.) 10 THE COURT: Okay. 11 MR. MERRETT: Moving on to paragraph C, 12 I will focus on Mr. Enerson and Mr. Lerma. 13 Oddly enough -- oddly is the wrong word. 14 Predictably is what I mean, although 15 Scientology is very careful to identify which 16 areas are outside of the orange zones, they 17 don't say when picketing adjacent to the 18 Coachman Building they were picketing in an 19 orange zone on the south side of the Coachman 20 Building. 21 If you recall from the testimony and the 22 videotape, the demonstrating in the orange 23 zone, yelling in the orange zone, using 24 non-electronic megaphones in the orange 25 zone. You will recall Mr. Avila's testimony . 628 1 that they weren't electronic. They were 2 just tubes or cones and honking of horns and 3 waving the Threep around are supposedly 4 violations of the injunction. Let's back up 5 just one second and eliminate the Threep. 6 Let's just set that aside for a minute. 7 We'll come back do it. 8 What are the orange zones designated 9 for, Judge? What did you say in your 10 injunction they are for? What did you say 11 in the order clarifying the injunction the 12 purpose of the injunction was? To allow 13 demonstration and the exercise of First 14 Amendment rights in areas adjacent to 15 certain church property. That's where they 16 were from the evidence. You know what? 17 Even loud speech is free speech. 18 As the court is well aware, I can show 19 you case law, but the leading case on it 20 came out of St. Petersburg so I assume you 21 know that unless it's fighting words or a 22 claim of physical damage which is likely to 23 cause harm to others, speech alone is never 24 a breach of the peace or disorderly conduct. 25 So them standing out there yelling in the . 629 1 daylight in a commercial district, Judge, 2 you didn't prohibit that. 3 That's the First Amendment. The First 4 Amendment is generally, generally not waved 5 around over a china tea cup. Generally it's 6 kind of loud and kind of unpleasant if 7 you're not the person exercising those 8 rights. 9 Judge Adams who is now on the federal 10 bench, I think he just got switched to 11 Jacksonville where he is from, when he was a 12 circuit judge in Nassau County, everybody in 13 law enforcement and the judiciary which was 14 a grand total of about 25 people went out 15 fishing on a boat when I was up there and 16 told him, I said, judge, the sheriff said he 17 was going to arrest that street preacher 18 down there on Center Street in front of 19 Dino's. You know, I don't think I want 20 anything to do with it and he said you know 21 what. Go look at the First Amendment. It 22 was written for obnoxious street preachers. 23 Your Episcopal priest doesn't need it. 24 Well, you know what. That is what the 25 First Amendment is for. It's to protect . 630 1 speech that otherwise wouldn't be protected. 2 It's to protect speech that would otherwise 3 cause people to push you down, to drive over 4 you or to come in and ask a judge to do it 5 for you. 6 The speech, the activities that you saw 7 on the south side of the Coachman Building 8 doesn't have to be nice to be within your 9 injunction; First Amendment activity and 10 consequently there was no violation. 11 The interesting -- well, we don't know 12 this, so I won't argue or go into how long 13 the Threep is or anything like that. 14 They've alleged that Mr. Minton, hanging 15 the Threep -- first off I guess that's 16 Threepe Quarem Clausem Friget, but that he 17 hung the Threep over the property line and 18 that that is a violation of the injunction. 19 Again, there is no part of the 20 injunction that prohibits that. There is no 21 part of the injunction that prohibits the 22 entry of certain property. There simply 23 isn't and if you're able to gauge from the 24 videotape and from what you see around it, I 25 believe that you'll find that the Threep is . 631 1 about ten feet long from body of the holder 2 to the end of the pole where the injunction 3 is hanging. 4 So, the question is, is there another 5 way he could have violated it? Did he get 6 within ten feet of a Church member? Not 7 unless he skewered along the Threep and the 8 ball was intact when it comes back in the 9 frame, so we have to you assume that he 10 didn't. So, se don't have a violation 11 there. 12 Additionally, they seem to be bringing 13 it and expect to hear it argued to you. 14 They seem to be bringing again the arguments 15 that passing across the driveway is a 16 violation of the injunction. 17 In other words that this, and this is 18 just going to be a generic setup, but there 19 are several places where the court's 20 injunction looks more or less like this and 21 it will say drive and it will have an orange 22 area and an orange area and it will say keep 23 back ten feet. Okay. 24 Well, none of the people on this side of 25 the room can levitate. They can picket here . 632 1 and they can picket here and we know because 2 dangling an orange ball and a copy of the 3 injunction infuriates the Scientologists and 4 cranks up the lawyers that we're not 5 supposed to do what? We're not supposed to 6 walk in here and get around the driveway. 7 We can't walk out in the street to get 8 around the driveway because, of course, 9 there is Scientology vans out there and we 10 know that their drivers are not capable to 11 hitting a hole less than 25 feet wide with a 12 van, so that's going to create a problem and 13 block access to their property. 14 We can't go on the other side of the 15 street because the other side of the street 16 is on the map and not an orange zone and 17 were picketing outside the orange zone. 18 The answer, Judge, is real simple. It 19 doesn't violate the injunction. The 20 injunction was not that people comport 21 themselves in a manner pleasing to 22 Mr. Miscavige and the rest of Scientology 23 hierarchy. 24 It was that the respondent not engage in 25 specified conduct. And unless the conduct . 633 1 is on that list, nobody, regardless of what 2 their connection is to anybody else can be 3 guilty of violating the court's order. 4 Passing in transit doesn't do. It, hanging 5 a Threep over the property line doesn't do 6 it. 7 THE COURT: Just a minute. Just let me 8 catch up with myself. 9 MR. MERRETT: Yes, sir. 10 (Whereupon, a pause in the proceedings took 11 place.) 12 THE COURT: Okay. 13 MR. MERRETT: Thank you. May I proceed? 14 THE COURT: Yes, you may. 15 MR. MERRETT: Judge, going to 16 Paragraph D at the bottom of page two, again 17 if you will refer to the text of that 18 allegation of the order to show cause which 19 relates to Minton, Lerma and Enerson and 20 Gogolla demonstrating on the south side of 21 the building, some of them using megaphones, 22 that is the Coachman Building, and that they 23 moved around the Ft. Harrison side of the 24 parking lot and quote, were picketing as they 25 walked across the driveway where protesting . 634 1 is prohibited, Minton was yelling through a 2 megaphone, and if you look again, it's this 3 situation here, exactly this situation that 4 they passed across the end of the driveway. 5 I think I've adequately made the 6 argument on that point which is again, if 7 you intended to tell people they couldn't 8 picket, you would have said that, I believe. 9 Now, another particularly egregious 10 exercise is found in paragraph E. If you 11 recall the videotape, it's egregious for the 12 basis, the first being that this is an 13 example of the deliberate duplicitous use of 14 language. This is where picketing on the 15 east side of the Ft. Harrison Avenue is 16 described as picketing in front of the 17 Ft. Harrison Hotel and just has Mr. Enerson 18 walking on the sidewalk immediately adjacent 19 to the Clearwater Bank Building is described 20 as being in front of the Clearwater Bank 21 Building. 22 As you might imagine, you see this in an 23 order to show cause with clients who 24 presumably can read, he would have a stroke. 25 What in the world does that mean? What does . 635 1 that mean to anybody, this order to show 2 cause that the court was led into reading or 3 signing by the application of the 4 Scientology because these people were 5 picketing in front of the Ft. Harrison, for 6 God's sake. 7 Keep this in mind, because it seems to 8 be saying how we got here as well as what we 9 heard when we got here because clearly they 10 were not in front of the Ft. Harrison. They 11 were across the street again in what 12 Scientology fails to identify as a specified 13 orange zone of picketing. 14 THE COURT: You're saying that 15 Paragraph E, that's an orange zone? 16 MR. MERRETT: Yes, sir, and that ended 17 up being demonstrated by a videotape and 18 conceded at one point I think by counsel. 19 It's an appalling choice of locution. 20 The behavior that you see which they 21 called in front of the Ft. Harrison, the 22 behavior that you see in the orange zone on 23 the west side of Ft. Harrison is again and I 24 won't repeat the argument -- 25 THE COURT: Hold on. On the west . 636 1 side -- oh, the west side of Ft. Harrison? 2 MR. MERRETT: Yes, sir. 3 THE COURT: I'm sorry. 4 MR. MERRETT: It's pure speech. It's 5 waving the Threep around. It's waving signs 6 around. It's hollering. 7 THE COURT: Wait a minute. Let me get 8 this right. 9 MR. MERRETT: It's east. It's east. 10 THE COURT: Hold on. Hold on. Hold on. 11 Paragraph 1E. 12 MR. MERRETT: Yes, sir. 13 THE COURT: On page three. 14 MR. MERRETT: Yes, sir. 15 THE COURT: You're telling me that 16 Minton, Merrett, Enerson, and Lerma were on 17 the east side of Ft. Harrison in the orange 18 zone. 19 MR. MERRETT: Correct. 20 THE COURT: Okay. Let me just note 21 that. 22 (Whereupon, a pause in the proceedings took 23 place.) 24 Okay. 25 MR. MERRETT: And it may remind the . 637 1 court, this is the segment, they're standing 2 in front of the shelter that covers the 3 sidewalk on the other side of Ft. Harrison. 4 Ms. Brooks is there with a dog who curiously 5 was not named in the order to show. It's 6 Maggie, but they left her out. 7 THE COURT: Wait. You say who wasn't 8 named? 9 MR. MERRETT: The dog. 10 MR. POPE: Excuse me. That's just an 11 example of cuteness that we didn't name a 12 dog. You know, that's the kind of sarcasm 13 that we've come to know and love in this 14 case. 15 THE COURT: Okay. 16 MR. MERRETT: In any event, that's the 17 scene. 18 THE COURT: Okay. Please press on. 19 MR. MERRETT: Although you obviously 20 weren't notified by the application that was 21 made on behalf of Scientology or by the order 22 to show cause that the attorneys presented to 23 you, this was in the zone these people were 24 authorized to be in and, again, as I 25 mentioned before in connection with picketing . 638 1 on the south side of the Coachman Building, 2 it is pure, protected speech. It is First 3 Amendment exercises in an area that the court 4 has designated for that activity. 5 Again, this is daytime. The court never 6 prohibited use of megaphones. These are not 7 bullhorns, these are not amplifying devices. 8 These are cones. I think you held one in 9 your hand marked Xenu.net, so you know what 10 they are. 11 THE COURT: Okay. Hold on just a 12 minute. 13 (Whereupon, a pause in the proceedings took 14 place.) 15 We've been going for about an hour. 16 Let's take ten minutes. 17 (A short recess took place after which the 18 proceedings continued.). 19 THE COURT: Okay, sir, paragraph F, page 20 three. 21 MR. MERRETT: Yes, Your Honor. In that 22 the allegation is that Mr. Minton, Mr. Lerma, 23 Mr. Enerson and myself and several other 24 persons and presumably, although you wouldn't 25 necessarily know from Mr. Bellavigna's . 639 1 account of his instructions regarding service 2 of the injunction, presumably that is not 3 several other people who were ambling towards 4 Jimmy Hall's for supper. The allegation is 5 that those people walked north in the street 6 adjacent to the Clearwater Bank Building. 7 If you look at the videotape you see 8 that they began walking, essentially 9 jaywalking, across the street onto the east 10 side of Watterson Street sidewalk and down 11 the sidewalk. Again, you have the 12 misleading use of language. 13 The sidewalk which is across the street 14 from the Clearwater Bank Building is not 15 adjacent to the Clearwater Bank Building, 16 however they appear to be drawing a 17 distinction between that which is merely 18 adjacent and that which is immediately 19 adjacent, which I guess is the intermediate 20 stage. 21 If the sidewalk across the street is 22 adjacent, then if there is a sidewalk in the 23 middle, maybe it's immediately adjacent and 24 the sidewalk actually touches the building 25 probably like really way up close adjacent, . 640 1 but in any event, this was presented to you 2 again with a misleading representation that 3 you saw from the videotape as far as where 4 these people were. 5 The next sentence which talks about 6 which they were doing supposedly, and again 7 I think we're still on the adjacent, meaning 8 50 feet away across the street adjacent. 9 That's certainly what the tape showed, 10 stopped and yelled, which is protected First 11 Amendment activity within an orange zone to 12 limited on the east side of Watterson Street 13 for that purpose. 14 You then saw on the videotape, 15 Mr. Minton, followed a little distance by 16 myself, crossing the street, walking with 17 the Threep vertical with the injunction on 18 it down the street. 19 What you didn't see was any 20 Scientologist. What you didn't see was 21 anybody. And I believe, although I'm not 22 certain. I'm sure somebody can look up and 23 tell me what day of the week January 6 was, 24 probably a Saturday or a Sunday, but that's 25 a matter of which the court can take . 641 1 judicial notice and as the court observed 2 yesterday, of course, this is a church and 3 Sunday is a day of limited activity in the 4 evening and that's the extent of that. 5 THE COURT: Okay. Let me catch up with 6 you. 7 MR. MERRETT: Sure. 8 (Whereupon, a pause in the proceedings took 9 place.) 10 THE COURT: Proceed. 11 MR. MERRETT: Thank you, Your Honor. 12 Obviously with respect to that Paragraph F, 13 the only way that you can find a violation 14 would be because there is no violation of the 15 ten foot rule, there is no Scientologists 16 shown to be blocked, there is nobody 17 inhibited from entering or exiting, there is 18 no Scientologist being harassed or subjected 19 to violation. The only way you could find a 20 violation is if you find that the display of 21 the Threep and the attached injunction -- 22 THE COURT: The what? 23 MR. MERRETT: The only way you could 24 find a violation is if you find that the 25 display of the Threep with the attached . 642 1 injunction in Mr. Minton's hand as he walked 2 through the door of the Trust -- 3 THE COURT: Mr. Merrett -- 4 MR. MERRETT: -- is First Amendment 5 activity. 6 THE COURT: Mr. Merrett, you're an 7 eloquent speaker, but you're a lousy tap 8 dancer. Put the Threep on the record now. 9 MR. MERRETT: I'm not sure I understand. 10 THE COURT: You keep waltzing about the 11 Three P Pole and you say there will be stuff 12 later. Go ahead and put it in the record now 13 so that that appellate court will have it. 14 MR. MERRETT: I will. I have no 15 objection to it. 16 THE COURT: I'm asking you to do it, 17 please. 18 MR. MERRETT: It's a ten foot fishing 19 pole. 20 THE COURT: I know what it is. I can 21 read the St. Petersburg Times. Now, can you 22 please put it on the record? 23 MR. MERRETT: I'm not sure how you want 24 me to put it on the record? 25 THE COURT: However you want to, but -- . 643 1 MR. MERRETT: You just want me to 2 describe it for the record? 3 MR. POPE: Your Honor, I'll be happy to 4 stipulate it into evidence. 5 THE COURT: Would you do that? 6 MR. POPE: Right now. Right now we'll 7 stipulate it into evidence. 8 MR. MERRETT: All right. We don't want 9 to lose it, Judge. 10 THE COURT: Well, it's in evidence now. 11 MR. MERRETT: It hasn't been offered 12 into evidence, Judge. 13 THE COURT: Well, did you really think 14 you were going to get out of here with that? 15 MR. MERRETT: I figured -- 16 THE COURT: That was going into evidence 17 one way or the other. 18 MR. MERRETT: Actually, their case is 19 closed, Judge. I was going to use it as a 20 demonstrative exhibit. You've got pictures 21 of it. 22 THE COURT: I would hate to see that get 23 lost for posterity. No comments needed. 24 MR. MERRETT: No, I'm not trying to 25 comment. I'm trying to think of how to . 644 1 proceed, which is -- 2 THE COURT: We'll worry about that 3 tomorrow. I just want the record -- you're 4 talking about the Threep or something. I 5 don't quite understand what you're saying. 6 MR. MERRETT: I understand. Your Honor. 7 It's Threep. The word is spelled 8 T-H-R-E-E-P. 9 THE COURT: Right. 10 MR. MERRETT: It is a collapsible 11 fiberglass fishing pole whose end is guarded 12 by an orange Nerf ball approximately four 13 inches in diameter. And spaced down the 14 shaft of the Threep at intervals are stripes, 15 horizontal stripes of pink fluorescent tape. 16 Exactly ten feet from the distal end of the 17 orange Nerf ball is situated a flashing red 18 strobe light and affixed immediately adjacent 19 to the flashing red strobe light is a Bombay 20 taxi horn. 21 THE COURT: A what? 22 MR. MERRETT: A Bombay taxi horn. An 23 ah-wu-gah (sic) horn. A horn with a black 24 rubber bulb for powering the horn. 25 Immediately in front of the horn and . 645 1 immediately behind the horn are sections of 2 flourescent orange pool noodle and fastened 3 to the distal end of the pole immediately 4 behind the orange Nerf ball is copy of the 5 text portion of Temporary Injunction Number 6 Two. 7 THE COURT: Okay. And what is the 8 exact -- 9 MR. MERRETT: Threep is, the derivation 10 of Threep is either depending on who you ask, 11 the Penick Peace-Keeping Pole or the Penick 12 Picket Pole. 13 THE COURT: Okay. 14 MR. MERRETT: And the Threep is a 15 pronunciation of the statement of Three P. 16 THE COURT: Okay. Mr. Pope? 17 MR. POPE: Your Honor, you have 18 requested that the pole be presented to the 19 court. I think -- 20 THE COURT: I don't know about presented 21 to me, but I mean at least every case has its 22 own unique character and some day somehow 23 there is going to be a court museum I have a 24 feeling, in this circuit anyway, and I just 25 hate to see that get lost. That's . 646 1 a -- there's some genuine ingenuity there. 2 MR. MERRETT: I understand, Your Honor. 3 MR. POPE: Again, we have absolutely no 4 objection to the pole coming here so that we 5 can all look at it, coming into evidence and 6 you having access to it, Your Honor. 7 MR. MERRETT: Your Honor, kind of 8 stepping aside, I now have the Threep in my 9 hand and as you can see it is remotely 10 deployable and you can see -- 11 (Whereupon, Mr. Merrett sounded the horn.) 12 THE COURT: I hope somebody has patented 13 that, because just think of all the pickets 14 around and everything else. I mean the 15 wealth of cases where you have to worry about 16 the footage, somebody could get rich off 17 that. 18 MR. MERRETT: Your Honor, I know the 19 designer and I think that he would be willing 20 to donate it to the court in the public 21 trust. You could make it, actually make it a 22 mandatory -- 23 THE COURT: Now, when you say public 24 trust, that scares me, but -- 25 MR. MERRETT: Actually, you can make it . 647 1 a part of future injunctions that each person 2 subject to the injunction equip himself with 3 a pole of suitable length and suitably fessed 4 in with horning devices. It's an idea. In 5 any event, however, this, without prejudice 6 to the procedural status of the case I would 7 at this time move it into evidence. 8 THE COURT: Okay. We'll make this your 9 number two and you know there is a rule about 10 substituting copies so maybe -- but anyway 11 we'll put this in and mark it into evidence 12 as Defendant LMT's Number Two Exhibit. 13 All right. That is when you talk about 14 the Threep? 15 MR. MERRETT: Threep, yes, sir. 16 THE COURT: Very good. Okay. Go ahead. 17 MR. MERRETT: Unless the court finds 18 that walking with the extended Threep 19 vertical down the west side of Watterson 20 Street, displaying the injunction and the 21 Threep and in connection with what Mr. Minton 22 was saying, unless you find that that is 23 First Amendment activity there is not a prima 24 facie case for a violation of the injunction. 25 In other words, at least a violation . 648 1 which could conceivably be constituted by 2 that behavior can't fall in any of these 3 other categories. It has to be the latter 4 one. 5 (Whereupon, a pause in the proceedings took 6 place.) 7 THE COURT: All right. Let's go on now 8 to Paragraph G. 9 MR. MERRETT: Yes, sir. The shortest 10 point to be made with respect to Paragraph G 11 is that this is once again a section in which 12 the affidavits and the motion and the 13 proposed orders to show cause were submitted 14 to the court without favoring the court with 15 the obvious fact as shown by the evidence and 16 obviously is known to Scientology when all of 17 this was submitted that these activities took 18 place in a designated orange zone for the 19 exercise the First Amendment rights. 20 Pierce Street north of the Ft. Harrison 21 Hotel, as you've seen, as we've talked 22 about, as Mr. Avila marked with his where Xs 23 for the picketers, is an orange zone where 24 picketing is permitted, and again, Your 25 Honor, I think it's the Saunders case -- as . 649 1 I say, we can look at the law later. I can 2 give it to you to take home or however you 3 want to do that, but I'm sure that the court 4 is aware that except for those two rare 5 exceptions, speech alone is never a breach 6 of the peace or disorderly conduct and it 7 clearly does not violate the court's 8 injunction. 9 The interesting thing is that the 10 violation that you saw was a violation and 11 unless you have interdelineated somewhere 12 here in invisible ink a secret Scientologist 13 exception is Mr. Avila coming into the 14 orange zone by his own admission in order to 15 videotape these people, that's an 16 interesting proposition. 17 But the bottom line is that what these 18 people are engaged in is speech within an 19 orange zone. Mr. Avila was very careful to 20 testify and in it was represented to you by 21 more than one person that these people put 22 their megaphones on the fence, on the fence, 23 which is probably almost as bad as putting 24 your behind on Santa's chair, but it was 25 represented in the testimony that the . 650 1 megaphones were put on the fence but then 2 take a look a the videotape. They didn't. 3 Even if they had, it doesn't establish a 4 violation of the injunction. 5 What you have is people engaging in 6 perhaps raucous. perhaps annoying speech, 7 but they're engaging in pure speech in an 8 area designated by the court for that 9 purpose. 10 (Whereupon, a pause in the proceedings took 11 place.) 12 THE COURT: Okay. 13 MR. MERRETT: The last paragraph and the 14 last part of the order to show cause to be 15 addressed is Paragraph H. I'll make this 16 brief. Again, I suspect Mr. Howie to do much 17 of the heavy lifting because principally or 18 actually it appears to be solely directed to 19 Mr. Minton and I just want to touch on a 20 couple of points. 21 This is another example of an attempt 22 purely to enflame the court. You know, all 23 presumed to be a matter of law and not to be 24 subject to being enflamed and once in a 25 while, like today, you get lucky and you end . 651 1 up in a court that really can't be enflamed, 2 but if you read that Paragraph H, that's all 3 that can be for. 4 They're asking you, Mr. Pope, Mr. Shaw 5 and Mr. Hertzberg, Scientology is asking you 6 to hold Mr. Minton in contempt for yelling 7 at the police. 8 You did not hear one word of evidence 9 that there was any Scientologist within ten 10 feet of them. You heard that Mr. Avila got 11 out of way -- oh, blockage. 12 THE COURT: Do what? 13 MR. MERRETT: Blockage. Mr. Avila 14 testified he was standing in the orange zone 15 hypothetically blocking, like people were 16 hypothetically blocking on December 4 by 17 being by the camera. What is that? But back 18 to this subject. They're asking you to hold 19 Mr. Minton in contempt and convict him of a 20 crime for hollering at the police. 21 Well, you know, it's not necessarily 22 smart to holler at the police. It's not 23 something the police like, but we don't live 24 in Saudi Arabia. We don't live Romania. We 25 don't live in Russia. You can talk to the . 652 1 police pretty much however you want to, 2 legally. 3 Now, there are terms of art like street 4 justice and power of the pen and things like 5 that that may come into play someplace other 6 than your court and if a police officer 7 feels threatened, Mr. Minton hits a police 8 officer, criminal courts are there to deal 9 with that. But yelling at the police, 10 however unpleasant the court might find that 11 behavior, is not a violation of the 12 injunction. 13 This is not an injunction which the 14 court entered in order to protect the tender 15 sensibilities of veteran police officers. 16 No Scientologist within ten feet. 17 Standing in the street is not a violation of 18 the injunction. Why? Because you heard on 19 the videotape very clearly that the reason 20 that he was in the street is because the 21 police were on the sidewalk and he 22 considered the police who, speaking of tap 23 dancing, were doing an interesting job of 24 that when Officer Harbert admitted, well, 25 yeah the money comes from Scientology. The . 653 1 instructions about where to stand and what 2 to do come from Scientology. They have to 3 stay by Scientology property. They're 4 watching out for Scientology's interest and 5 whether or not they're of Scientology, but, 6 but, but, but, but we're not working for 7 Scientology which is interesting to say the 8 least. 9 Anyway, Mr. Minton, you could hear and 10 see on the videotape stepped out into the 11 street telling him to stay ten feet away 12 from him he believed him to be agents of 13 Scientology. 14 The street is not an area where he is 15 prohibited by the injunction from walking. 16 If it's against the law to walk in the 17 street, they missed a big change to make him 18 a traffic criminal like Mr. Oliver writing 19 him a citation for walking in the street. 20 But that's not something that violates the 21 injunction. 22 There isn't -- I mean let's look again 23 at what you prohibited. He didn't get 24 within ten feet of a Scientologist, he 25 didn't lock the path of a Scientologist. . 654 1 You heard lots of innuendo about that's the 2 area where the buses load and unload, but 3 nobody could tell you whether or not there 4 was anybody there. 5 Nobody told you that -- people said, I 6 think Officer Harbert had his -- switched 7 from his tap to his ballet shoes and said 8 several different ways, well, there were 9 people in the area. Yeah, there were people 10 in the area. There were people in the 11 Walgreens two blocks away. Was there 12 anybody getting on and off the bus? I don't 13 know. 14 Mr. Avila said I don't know whether 15 there was anybody getting on or off the bus. 16 There was, you watched the videotape, no 17 vehicular traffic on the street. There is 18 no evidence that anybody was blocked or that 19 anybody was inhibited, that anybody was 20 harassed. Certainly not any member of 21 Scientology and the only reason he was in 22 the street was out of the what is 23 established by the evidence Scientology has 24 adduced to be perceived necessity to stay 25 away from these police officers who are . 655 1 working as Scientology security guards. 2 Again, what they're attempted to do in 3 this instance is to agitate the court by 4 putting into evidence him cussing at the 5 police. There are lots and lots of nodded 6 heads and breach of the peace convictions 7 and screen tests and dogs running in front 8 of cars and you name it that are a result of 9 people screaming at the police, but a 10 violation of this injunction is not one of 11 the things that can be affected by screaming 12 at Larry Harbert or Steve Correa. 13 (Whereupon, a pause in the proceedings took 14 place.) 15 THE COURT: Okay. 16 MR. MERRETT: Your Honor, I am winding 17 up toward the alter call. I know you'll be 18 glad to hear that. The last principle issue, 19 there are two principle issues that I want to 20 touch on. 21 First is this. There has been a 22 complete lack of evidence of the connection 23 other than a physical connection which seems 24 to have been focussed certainly on 25 Mr. Minton on January 5 entering the . 656 1 premises. 2 You heard about other people walking 3 toward or walking away from the Lisa 4 McPherson Trust, but there has been no 5 evidence of any connection of any of these 6 people to the Lisa McPherson Trust and no 7 evidence of any activity by or on behalf of 8 or at the instance of the Lisa McPherson 9 Trust which is named as a respondent in 10 these orders show cause. And as to that, 11 again there is a complete lack of evidence. 12 You have evidence regarding various acts 13 by individuals, but again, you have no 14 evidence of any legal connection of those 15 individuals to the Lisa McPherson Trust and 16 nor do you have any evidence of anyone 17 taking any action on behalf of the, at the 18 instance of the Lisa McPherson Trust. 19 You do see Ms. Brooks, the President and 20 corporate representative walking with 21 nothing in her hand but a dog leash in a 22 couple of the frames and that's it. She, of 23 course, is not named. 24 (Whereupon, a pause in the proceedings took 25 place.) . 657 1 THE COURT: Okay. 2 MR. MERRETT: Now, an element that 3 Mr. Pope brought up and I won't belabor it 4 because that he and I were looking at the 5 same case law and are in agreement with 6 respect to what the law is as far as the over 7 arching definition of the offense of indirect 8 criminal contempt. 9 With respect to the elements of that, it 10 must be an act or omission which is willful, 11 which is intentional, which is calculated to 12 hinder or embarrass the court in the 13 administrations of justice or to obstruct 14 its orderly progress, and what it breaks 15 down to, in simpler terms, is as far as the 16 mens rea aspect, is the element of intent. 17 An intent to violate, an intent to obstruct, 18 an intent to affront the court. 19 Often times when people ask me what 20 exactly indirect criminal contempt is I 21 think the shortest explanation of it is that 22 is by one means or another, making one or 23 another totally unacceptable hand gesture at 24 the judge. It can involve your thumb or one 25 of your other digits, but that's essentially . 658 1 what the gravamen of the offense is. If you 2 are acting willfully and intentionally to 3 affront the authority of the court or to 4 thwart the administration of justice. 5 On the issue of intent, number one, 6 there is not only an absence of evidence of 7 an intent to violate. I mean each of these 8 violations that they're talking about are 9 things like aha, they're walking back toward 10 the Trust. They're out of an orange area. 11 They still have the sign. Get em, get em, 12 get em. That's the vast majority of these 13 things. 14 Look, yeah, well, they're in an orange 15 zone but they're talking loud. Maybe that 16 will do it. These are the kind of 17 violations that we're talking about. 18 But the more compelling point is the 19 affirmative evidence that Scientology put on 20 of these peoples' deliberate, willful intent 21 to obey they order. 22 The redheaded female police officer. I 23 have her name written down but I'm not even 24 going to try to pronounce it. She told you 25 that she talked to Ms. Bezazian about, you . 659 1 know, you're walking down the street here. 2 If you're not picketing you need to put your 3 signs down and you can go ahead and walk. 4 What did Ms. Bezazian do? She put her signs 5 down. 6 Every time that you have seen somebody, 7 even on the night of the seventh, 8 Mr. Minton, every time that you have seen 9 somebody instructed by the police to do 10 something, they've done it. 11 Mr. Minton, after if you count it off, 12 it's ten seconds, the police say get up on 13 the sidewalk, he got up on the sidewalk. 14 Now, what good that did, I don't know, 15 because they followed him up there and stood 16 right on top of him again, because 17 apparently the gravamen of the offense then 18 shifted from standing in the sidewalk or 19 standing in the street to standing on the 20 sidewalk. But, he did what they asked him 21 to. 22 He then turned and walked away and they 23 followed him again, but when they say get on 24 the sidewalk ten seconds later, he got on 25 the sidewalk. And every time that you see . 660 1 it with respect to, and the female police 2 officer is the one that springs to mind, 3 everybody is immediately obedient to these 4 instructions. 5 That's it. You've got people picketing 6 and walking back and forth picketing and 7 Scientology is trying to bootstrap this into 8 a blanket prohibition of picketing and you 9 do not have a prima facie case for violation 10 of the injunction. 11 The next to the last point is this to 12 reiterate for the court of the 13 identification question. Again this is a 14 criminal proceeding. 15 All that you have established is 16 similarity or even identity of name which is 17 manifestly insufficient as a matter of law 18 to support a conviction for a criminal 19 offense. 20 If I say Bob Minton hit me, okay. 21 That's my testimony. Bob Minton hit me and 22 then I show you a videotape and I say, yeah, 23 that's a videotape of Bob Minton hitting me, 24 that is the state of the record with respect 25 to all these purported offenses. . 661 1 There is no evidence at all that the 2 people who are present in court in response 3 to the charges issued at the instance of 4 Scientology are the people who performed the 5 offenses. They are not tied to the images 6 except by name. They are not tied to the 7 testimony except by name. 8 If the court will recall, every criminal 9 trial that you've ever sat through where you 10 didn't issue a JOA at the instant of the 11 defense attorney, at some point somebody 12 said tell us where he is and what he's 13 wearing and they did it and then what did 14 you say, Judge? May the record reflect he 15 has identified the defendant. 16 There's a reason we do that. It's 17 because you have to identify the defendant. 18 And other than poor lonesome me, they didn't 19 do that and you know what, Judge? That just 20 doesn't cut it. 21 It's not minor here. It doesn't matter 22 in a civil case, but this is criminal case 23 that Scientology brought and they just 24 didn't do it. 25 Now, Judge, some years ago somebody said . 662 1 in connection with some of the parties here 2 said that some day somebody will say all 3 this is illegal. When that happens make 4 sure it's Orgs that say what's legal and 5 what's not. That was L. Ron Hubbard who 6 said that. 7 We're not yet to the point where 8 Scientology says what's legal and what's 9 not. We're at the point today where 10 Scientology is proclaiming what they want to 11 be unlawful. 12 The fact is the law in this case is what 13 you have handed down and there is not a 14 prima facie case for violation. 15 I appreciate your attention and I 16 apologize for taking so much of your time. 17 THE COURT: Okay. I thank you very 18 much. Ladies and gentlemen, this is a good 19 point for us to break for today. We'll pick 20 it up a nine o'clock again tomorrow morning. 21 I don't think there is quite the urge to 22 get here early for parking spaces. The 23 juries have been selected and those that 24 were not selected have gone home and so 25 we're kind of back to business as usual, so . 663 1 plan accordingly other than that. Nine 2 o'clock tomorrow morning, here. 3 (Thereupon, the trial was adjourned to 4 reconvene at 9:00 AM on February 13, 2001.) 5 6 End of Volume V 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .