Copyright 1995 Shelley Thomson; all rights reserved.
Mail, articles and comment may be directed to sthomson@netcom.com. Netiquette will be observed with all communication, except for the following: harassing or threatening mail will be posted to the net immediately.
Table of Contents for Biased Journalism.
Read at your own risk. This is Biased Journalism!
According to net information, a Motion for Summary Judgment on the trade secret charges by defendant Lerma's attorneys will be heard on December 1, 1995. [In earlier developments in the Colorado case the church apparently abandoned its trade secret claims. As we understand it, the heart of the case is in accusations of copyright infringement.]
We thank the sharp-eyed readers of Journal #4 who pointed out to us that Leap Year Day is February 29, not January 29. We don't know what came over us.
No one on ars had previously seen the deposition because it was placed under seal by Judge Brinkema at the request of the plaintiffs. Milne's post presumably came as a surprise to the attorneys for Lerma et al., and we are curious to see what the court will make of the matter.
October has been hot and dry. Earlier this week intermittent Easterly winds fanned the inevitable grass fire into a major blaze near the town of Inverness and the Point Reyes National Seashore. The smoke browned the sky in San Rafael. The air smelled of burning pine, a sweet and sinister fragrance.
The county courthouse is a large building extended in wings over terraformed hills. The wings are nearly identical in appearance and the parking lots are neatly symmetrical, offering hours of entertainment to dyslexics and people with a poor sense of direction.
There were compensations. The corridors of the building were wider than some roads and the entire structure was immaculately clean. The personnel were white, well dressed and friendly. The plants in the atrium were intensely lush and green. There were no crowds.
The hearing was held in the courtroom of Judge Gary W. Thomas. We found our way there through handsome unmarked corridors and mysterious floor designations apparently designed to foil terrorists by instilling confusion. The courtroom was designed to be almost circular. It was richly paneled in dark wood. The jury box and the public seating area were semicircular. The light fixtures in the ceiling were circular. The room was a masterpiece of psychological design. All attention was focused on the judge; all power emanated from his platform.
The logistics quite were different than in San Jose and enforced a different ethic upon the participants. The counsel table was a semi-circle of dark wood below the judge, who towered over the cowering lawyers. There was a spare piece of table on the side, but no one used it. When a case was called, the lawyers from both sides quickly came up to the table and stood next to each other to give their presentations. They felt, we surmised, very much on the spot. There was no sense whatever of territorial hostility as we felt between opposing counsel tables in San Jose. [At moments in the Erlich hearings a drawn stiletto would scarcely have been out of place.] The lawyers focused entirely on the Judge and were very, very polite. They all spoke rapidly, for reasons we were soon to discover.
We had plenty of time to observe the scene. The judge had a stack of folders in front of him that was at least eighteen inches tall. Everyone waited while each case was dealt with in turn. We saw several arguments over attorney's fees, a sexual harassment case (the judge threw it out), a constructive termination case which sounded bad to us but met the same fate (dentist had a bad hair day and took it out on his hygenist, who quit and then sued). We noticed that in many of these cases the judge was being asked to change a ruling he had previously given. In each instance he refused. Once in awhile an attorney tried to put in a last word. "That's all," the judge said, in a pleasant conversational tone. And the attorney would say "Thank you, Your Honor" and gather up his papers and leave. Fast.
The public seating was almost filled. The jury box was full of spare lawyers, but there were a number of lawyers in the audience as well. Gerry Armstrong was easy to find. "He looks like Jesus," we were informed. "You won't have any trouble spotting him." Lo, it was true.
We scrutinized the audience for additional participants in the netwar, but saw no familiar faces. The, ah, vibe was different. This audience was very interested in something, but we concluded that it was not Scientology.
The truth surfaced when the judge called a case involving easements in Bolinas. A stir went through the audience and the lawyers in the jury box sat up. The case was complex, involving landowners, contracts, zoning and efforts by an agency of the State of California to (we inferred) take possession of the beach in Bolinas in the name of The People. Who were The People and what right did they have to tell the good citizens of Bolinas what to do? What did the contract really say? This was gone over quickly while the audience paid rapt attention. The original contract involved some 40 landowners, but the case had now expanded to include some 120 parties. In the way of such things it had become extraordinarily acrimonous. [Where citizens in poorer places reach for their guns, the people of Marin County call their lawyers. Issues are as bitterly fought here as in the barrios; merely the weapons are different.]
"There is a status conference this afternoon, Your Honor," one of the lawyers reminded. "Yes, there is" the judge sighed. A pause. "How's it going?" Everyone laughed. No settlement was in sight. Ground zero was expanding daily. People were pledging their homes to finance the struggle.
The lawyers were dismissed to sort it out. Most of the audience got up and followed them.
The next act was a lawsuit involving a restaurant. The judge complimented the restaurant: "Well, I did have a good bowl of clam chowder there," he declared, startling some members of the audience. He deferred the case, as the restaurant's attorney had asked. [Was the judge making a clam joke? We could not tell.]
--intermission--
A brief recess was called. We utilized it to introduce ourselves to Gerry Armstrong and have a brief chat with one of the audience. Our target was a dark-haired man with a square, somewhat lined face and striking, bushy eyebrows. He was neatly dressed in a suit and obviously tired (we caught him napping during the sexual harassment case).
We introduced ourselves, and after due deliberation he gave his name as Howard. He was with OSA and had accompanied church lawyers Wilson and Bartilson.
Howard looked surprisingly like an older version of Jeff Quiros, [OSA-San Francisco] but the vibe was darker. We guessed he ranked higher in the organization. He told us that he had been in scientology for a number of years, that he was free to talk to anyone, and that he knew very little of what was transpiring on the net. He did not have a computer himself.
We asked if he had attained a lot of rank in the church. (We really wanted to know whether he had acquired any OT powers, but were embarrassed to ask directly.) He replied that he had been with the church since 1971.
We discussed the netwar. He said "We have to defend our copyrights." "Well," we proposed, "before these raids and other things happened alt.religion.scientology was a little backwater on the net with 30-50 posts per day. Perhaps 500 people read it. Now it's one of the most popular groups. Every day more people read it and get involved." He nodded. He knew about the expanding furor in cyberspace. "Now if the church had ignored Dennis Erlich, and had not attacked the net, in all probability ars would still be a small backwater populated by a few critics talking mostly to each other." We had the sense that he agreed but it had not been his decision to make. In a moment of silence we reflected on the fate of a corporation that lets lawyers decide policy.
We wished for a longer intermission, in which to ask some pressing questions. The opportunity to talk to a senior church member was rare and we found Howard a reasonable human being. Why doesn't the church let people of higher caliber represent them on the net? -At this point the scientology lawyers returned, giving us curious looks, and the hearing resumed.
--end intermission--
The next case was the Church of Scientology vs. Gerald Armstrong. The judge called it with audible relish.
Attorneys were Andrew Wilson and Laurie Bartilson for the Church of Scientology and Ford Greene for Gerry Armstrong.
Greene had asked for the hearing. He wanted to discuss the tentative order.
The background was this: After several years with the Church of Scientology Armstrong resigned. He was subjected to harassment of various kinds, including freeway accidents with automobiles driven by Scientologists, and together with some other people he sued. The church finally offered a cash settlement on the condition that Armstrong dismiss his cross complaint and sign an agreement. Essentially the agreement stated that Armstrong et al. would not possess any Scientology literature and would not discuss Scientology or the Church. Greene explains that if the judge's interpretation is followed, this means the Church could accuse Armstrong of of being a liar, perjurer, etc. and if he defends himself he is in violation of a court order.
[The cruelty of this arrangement bothered us on the way home. Armstrong had given himself completely to the church; scientology was his life. To be rid of him the church gave him $800,000 and forced him to forswear his past. It was a faustian bargain. We guessed that the church knew what they did when they stripped him.]
Greene wants the judge to find that the contract involved mutual confidentiality. He argues that the agreement involved not only information possessed by Gerald Armstrong, but pertained also to information held by the Church of Scientology as to its former parishioner. He complains that the judge has not read evidence Armstrong submitted supporting this argument.
The judge wants to talk about contracts. A discussion ensues with respect to duress.
Greene responds that duress [as the judge sees it, absence of] is not the issue. He says that Laurie Bartilson filed documents stating that the agreement was mutual. The judge's ruling didn't incorporate those facts, he argues.
The judge and Greene quickly go back and forth on the question. The judge sees it as a contract issue. 'You keep your mouth shut, we pay you $800,000.' There is an agreement that if he opens his mouth he must repay $50,000. "He opened his mouth and they want $50,000 each time."
Cases are discussed. Greene argues that the court needs to look at the object nature and the subject matter of the contract. He brings in Judge Breckenridge's ruling, in which Armstrong is judicially credited with telling the truth and the Church of Scientology is judicially credited with very bad deeds.
The judge comes back with a comment on the Church's claims: given the contract, Greene's argument logically suggests that Armstrong made an agreement without the intention of keeping it.
Greene replies that Armstrong was paid the $800,000 to dismiss his cross complaint, which was set to go to trial in three months [immediately, as lawyers count time]. The cross complaint dealt with harassment, including very serious incidents. He says that both parties made an agreement to keep their mouths shut and the Church of Scientology broke it.
The judge reads from a Los Angeles court order. It says that mutuality cannot be read into the unambiguous terms of the agreement. [The judge is a stickler for unambigious terms.]
Ford Greene counters that this is unfair. The court order does not refer to Armstrong's issues.
The judge concedes that the court order is not the law in this case.
Greene wants to build a case, something the judge is unwilling to allow. He complains that the judge keeps interrupting him; he is right. Greene references another L.A. judge who thought the first judge's order was one-sided. He again refers to a document submitted in the L.A. case, which Judge Thomas had overlooked in his ruling: "...and that's the single most glaring omission, with respect, in your tentative order."
He relates that Armstrong found out that the Church of Scientology was appealing his case. He went to the appellate court with a copy of the agreement. The appellate court found that Armstrong could participate in defending his case on appeal.
Now the opposition had their say. Andrew Wilson maintains that the courts have held that the agreement is not mutual. He lists several judges. Courts have granted summary judgment on several provisions; they haven't said the agreement is mutual.
Greene responds quickly. He has Heller's papers "...right here. With respect, Mr. Wilson, you're wrong." The court only looked at the judgment. It did not make a decision on the enforceability of the contract.
Judge Thomas steps in. The beliefs of any of the participants including Gerry Anderson are not relevant, he says. He refers to a summary of California law: Rules of Interpretation of Written Contracts. Efforts to interpret must concern efforts to elucidate the meaning of the words in which the contract is written. Evidence cannot be admitted to show intention independent of the instrument. Therefore Armstrong hasn't raised a triable issue. His arguments about obstruction of justice and the right to free speech are [beside the point]. The ITT case shows that it is possible to waive even First Amendment, free speech rights.
Greene won't give in. He states that agreement to a contract must be knowing and voluntary. Further, Heller says it's mutual. [Heller, a Scientology lawyer, was in the room when Armstrong signed the contract. Greene wants his sworn statement considered.]
Laurie Bartilson tells the judge that there is videotape of Armstrong signing the contract. He signed a statement saying he had discussed it with attorneys. Etc. This shows that Armstrong signed the agreement voluntarily and knowingly.
Judge Thomas says, as he has done in every previous case that day, "There is no reason to change my tentative ruling."
Ford Greene argues fiercely with the judge. The preliminary injunction is broader than the language of the contract itself!
The judge won't discuss the language. We intuit that something is discussable here, but the judge tells Greene that he has had twenty minutes and they are done.
Greene continues to argue. By this point other attorneys had left tamely, but he wants to get certain statements into the record. Heller comes up again.
The judge refuses to debate with Greene. He calls the next case.
The lawyers for the next case array themselves at the table, but Greene is still fighting. Wilson and Bartilson come back to pick up their Scientologist colleague in audience. They are beaming. "That boy's going to jail," Wilson remarks.
Meanwhile the judge states that Greene is interfering with another case and offers to have him "taken away."
Greene won't quit. He is talking for the record, rapidly, arms waving. The judge nods for the bailiffs. A telephone call is made.
Then, miraculously, it is over. Greene gathers his papers and leaves, trailing Armstrong and a few supporters. Greene is disturbed. The outcome is not good. He is visibly angry about it. While he is collecting himself a crowd of bailiffs materializes in his vicinity. They have weapons and cellular telephones, but are amazingly polite and low-key. An attractive woman bailiff steps forward to ask if he has calmed down. He says he has. They go away, leaving a few of their number to watch from a discreet distance. We surmise that Greene is no stranger to bailiff interactions.
It is still hot outside. The smoke has spread out over the city in a whitish pall. The fire has gotten worse.
--Epilog--
When Wilson and Bartilson came back to their seats at the end, looking extremely happy, we and the scientologist had a shared moment of rapport. In that instant we both understood that the Church has won, this time, but like every previous legal action this one will turn into a p.r. nightmare.
Operation Foot Bullet is well on course.
--Additional details--
In a subsequent conversation we talked with Andrew Wilson, attorney for the church.
Since October 6, Wilson said, the judge confirmed his preliminary order and issued an injunction. If Armstrong violates the injunction he can go to jail, Wilson explained, "but I expect he would not violate the injunction." [The image of this gentle, stubborn, unworldly man in prison moved us. Some things are visibly unacceptable. We suspected that it also moved Andrew Wilson.]
Wilson confirmed that his remark ("That boy's going to go to jail.") indeed referred to Ford Greene. Wilson was unfavorably impressed with Greene's aggressive stance in court. He thought this behavior was rude to the judge who, Wilson said, had had a stroke and was physically impaired. [In fairness we must say that despite his infirmity the judge had no trouble asserting himself.] Wilson, we gathered, would not have been surprised if Greene had gone to jail, which indeed nearly happened.
We asked Wilson whether he were a scientologist. He laughed. "No." He was not offended by the question. Everyone he meets asks him this, he said. It comes with the territory. We asked how he felt when he was first contacted by the church of scientology.
Wilson explained that an old high school friend, Jeff Quiros, had made the connection for him. He went on to say that every scientologist he had ever met had impressed him as a good and worthwhile person.
We had a cognition. Lawyers think quite differently than the general public. Of course Andrew Wilson was not put off by the church's reputation. What better luck could an attorney have than an insatiably litigous client with unlimited funds? No wonder he looked happy in court.
Interestingly, Wilson was unfamiliar with some actions of the church which took place outside of the courtroom. He seemed surprised to hear of the exploits of Eugene Ingram, for example. However when we mentioned that Ingram's actions constituted a public relations problem for the church, Wilson was unimpressed. If it isn't a legal problem, it isn't a problem. [This is, we thought, because he does not understand what a p.r. problem on the net really means. If the church expects to club its critics into silence one by one, it is in for a surprise.]
Like many of the participants in the church side of the netwar, Wilson is unfamiliar with the net. Although there are several computers in his office, he has never taken time to go on line. We encouraged him to go on line and see what is happening for himself.
We had a brief chat with Ford Greene. He confirmed that in the closing moments of the hearing he was desperately trying to get certain material into the record, and he knew he was pushing the judge to the limit. We asked if attorneys had ever been jailed for contempt, and he said that it was not unheard of. It had been a very close shave.
The next action in the case will take place on December 1. Greene's Motion for Reconsideration will be heard. The court will also hear Scientology's Final Motion for Summary Judgment.
Biased Journalism will report this event. Stay tuned.
We opened our latest House of Onyx catalog and were delighted to find Opalized Clam Shell Fossils. The ad says "Our Australian Clam Shells are fossilized with genuine White Opal...These Opalized Clam Shell Fossils are White with spectral flashes of color. Those with more color are priced accordingly higher. Most of the Shells are within the 20x25 mm range, weigh between 15-25 carats and are entirely fossilized with Opal. The physical details of the bivalves are intact." [there's a picture. They look beautiful.] The ad continues, "We offer four qualities of Opalized Clam Shell Fossils. Those at $50 and $75 will not be as smoothly covered with Opal as the $100 and $125 Fossils and consequently will have slight matrix.
OPALIZED CLAM SHELL FOSSILS
15-25 Cts., 20-25 mm $50.00/each
$75.00/each
$100.00/each
$125.00/each."
Plus a hefty 30% discount for ordering 2 or more.
The House of Onyx is an old, family-operated company dealing mostly in gemstones, art objects and jeweler's supplies. For their free catalog and remarkably friendly terms of business, which include a guarantee of satisfaction, call 1-800-844-3100 (except in Kentucky, where the number is (502) 338-2363). Same number to place an order.
No, we are not getting paid for this.
Hotfoot at Hemet
A deer mouse at Hemet turned in this report: On Monday, November 13 there was a security flap at the Scientology base at Hemet, which is coincidentally called Gold Base. The deer mouse said that it happened in the morning. Concern was raised about a possible high-level defector. Security procedures entailed checking on a quantity of gold bullion which had been stored in a secure vault. When they went to check on it, they found that 7/8 of the gold was missing. There was no paper trail. Security personnel almost had a shootout over this, but discipline prevailed. There was (they decided) probably no connection between the missing gold and the alleged defector. The gold had to have been removed beforehand, possibly one or two months ago. The deer mouse thought it happened on the night shift, and that a high-ranked person in the church gave the order to make no records of the transfer. A very high ranked person, the deer mouse said significantly.
Security sent a message to higher management asking for instructions (it went on). Was this to be considered a theft, or an authorized action? If the latter, why were they not informed? They heard back, after a delay, but the response was ambiguous. They were essentially told to hold their position. A colleague of the deer mouse scanned the message and told us, reading between the lines, that the author had no idea what had happened to the gold and did not want to commit himself.
The lid is cranked down tight on this incident. Nevertheless we hope to hear more about it.
The I-NET mouse was heard from again.
"They're looking for me," the mouse said reproachfully. "I had to move my nest." It reported that it was running down the hall toward the vending machine, intending to have an early lunch, when it happened to pass an open door. Jim Settle was in the room with his boss and one other person, of whom the mouse could only see the feet. The subject of discussion was the justification for the search of Arnie Lerma's computer. Judge Brinkema found the search to exceed the scope of the writ, sternly rebuked the plaintiffs and ordered the return of the computer and all its files. The plaintiffs have refused to comply. The mouse overheard Settle saying words to the effect that 'well, we'll just say that when we looked at the computer we saw evidence of illegal activity and we thought it was our duty to pursue it.' He was proposing a kind of citizen's arrest on Lerma's data. The I-NET lawyer did not think this would fly in the long run, but thought it might delay things for a few months.
Will this novel theory please Judge Brinkema? Only time will tell.
__A. Fortiori