CASE NO. 99-7430-CI-08

                      IN THE CIRCUIT COURT IN AND FOR
                          PINELLAS COUNTY, FLORIDA

                           CASE NO. 99-7430-CI-08

           ORGANIZATION, INC., a Florida           :
           corporation,                            :
                               Petitioner,         :
           vs.                                     :
           ROBERT S. MINTON, JR., ET AL.,          :
                               Respondents.        :

                 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



           The Honorable THOMAS E. PENICK, JR.

           911 Chestnut
           Clearwater, Florida

           740 Broadway, Fifth Floor
           New York, New York  10003

           Attorneys for Church of Scientology Flag Ship

           2716 Herschel Street
           Jacksonville, Florida  32205

           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, 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.)


       6                      End of Volume V