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[ All Issues of Biased Journalism | Main Scientology Page ]Biased Journalism Volume 4, Number 7 May 16, 1998
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At the end of the trial Henson obtained a diskette from the court reporter. It contained the transcripts of day 3 and day 4. He promptly posted the contents. On the following day someone mentioned to him that the transcript contained the sealed portion, which was a discussion of NOTS 34.
Henson telephoned the court immediately to announce the problem and explain that it was not his fault. He had not stopped to read the transcript before posting it. He had assumed that it would not include the sealed section.
On May 13 Whyte issued an order.
ORDER RE: COMMUNICATION WITH COURT AND COURT STAFF
All parties and thir counsel in this action are advised that all communications with the court and the court staff must be in writing.
Ronald M. Whyte
--Then Henson filed:
H. Keith Henson P.O. Box 60012 Palo Alto, CA 94306 (415) 520-3458 pro se UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA RELIGIOUS TECHNOLOGY CENTER, a ) Case No. C-96-20271RMW California non-profit corporation, ) Plaintiff, ) ) v. ) DECLARATION ) RE TRIAL H. KEITH HENSON, an individual, ) TRANSCRIPT Defendant. ) ____________________________________ About noon today, I was on #scientology (a world wide chat room) and someone mentioned that the part of the testimony which was taken with the court cleared was inadvertently (?) included in the transcript of day 4. This transcript has been placed on a website where I cannot delete it (in exactly the same manor as was done with days 1-3). It has been downloaded from that website by scores of people all over the world, and the section was even posted to a.r.s. The way it got on the web was a friend of mine stayed behind in the courtroom to pick up the diskette Mr. Berry had ordered from the reporter. He gave the diskette to me outside the courthouse door. When I got home, I uploaded the files on that diskette to a location where they could be moved to the current web site without looking at the contents of either day, and only found out the contents as above. I can return the diskette to the court, but I know of no method to retrieve what has been placed on the web. Submitted under penalty of perjury, H. Keith Henson dated May 13, 1998 (about 12:30 pm)
--By then RTC had acquired a clue:
to Graham Berry from Kendrick Moxon and Helena Kobrin at 2:27 pm:
May 13, 1998
Dear Mr. Berry:
It has come to our attention that Keith Henson has posted to the internet and distributed to others the sealed portion of the trial transcript from Monday, May 11. As both you and Mr. Henson are aware, the Court cleared the courtroom for this portion of the testimony and ordered the transcript sealed.
Mr. Henson's posting of this transcript segment is a connumacious violation of Judge Whyte's order. Furthermore, Mr. Henson was well aware of his obligations, as he has now called Judge Whyte's courtroom clerk after the fact and admitted that he made the posting. This is simply more of the game-playing that resulted in the willfullness finding and $75,000 verdict against your client.
We therefore demand that you have Mr. Henson immediateley: (1) cancel any posting of the transcript made by him; (2) retrieve any copies that he distributed to anyone else, and (3) have anyone to whom he distributed the transcript cancel any posting of it made by them or delete it from any web sites where they have placed it. Two such individuals of which we are aware are Deana Holmes (web site) and Tilman Hauser (sic) (posting).
We expect to hear back immediately that you have complied with these demands. We also put you on notice that we intend to move the Court for an OSC re contempt.
Very truly yours,
Helena K. Kobrin
--Berry replied, defending his wayward client:
(from Graham Berry 3:44 pm)
May 13, 1998
VIA FACSIMILE & FIRST CLASS MAIL
Helena K. Kobrin, Esq.
Moxon & Kobrin
6255 Sunset Boulevard, #2000
Los Angeles, California 90028-6329
Re: RTC v. Henson
Dear Ms. Kobrin:
I do not have a copy of days 4 and 5 of the Henson trial transcript in any form. I am currently and unsuccessfully trying to access the Internet in order to obtain them. However, the following would appear to be a reasonable interpretation of the events.
1. At plaintiff's request, the Court cleared the Courtroom of all except parties during examination of Mr. Henson on the actual contents of NOTS 34. At the time, the Court said it would seal that portion of the transcript on an interim basis only. It indicated that it was open to subsequent motions to unseal the transcript.
2. Plaintiff had arranged for a daily transcript to be produced and delivered to it the same day. During each day of the proceedings, plaintiff had between five and ten attorneys present in the Courtroom, from four different law firms, who were all obviously working on the case. It would seem reasonable to conclude that the Monday, May 11, 1998 transcript was received by plaintiffs' attorneys early in the evening on Monday, May 11, 1998. It also seems reasonable to conclude that those same attorneys combed through the transcript in preparation for closing argument the next day. They must have noticed, what I am advised, is the absence of any indication upon the transcript that a portion of it is sealed, the absence of a separate portion of the transcript, containing the sealed portion, the absence of a separate diskette containing the sealed portion, and generally the existence of a transcript in a form totally inconsistent with the Court's Order. Clearly, a mistake was made by the Court Reporter, turning out a document in haste, to satisfy your client's demands.
3. Clearly, RTC should have brought the matter to the Court's attention on the morning of Tuesday, May 12, 1998. It did not. Instead, I was standing near Mr. Rosen when he asked the Court Reporter whether anyone other than the defendant, Mr. Henson, was purchasing copies of the diskettes containing the transcript of the days proceedings. Mr. Rosen was told that they weren't. Clearly, he was either: (a) wondering who had initiated the posting process in connection with the previous three days of testimony during the trial; or (b) he was deliberately failing to advise the Court Reporter of her oversight, in the hope that the defendant would proceed with an unwitting publication of the entire transcript. Thus, the very real possibility exists that Mr. Rosen actually entrapped and triggered the publication complained of. At the very least, Mr. Rosen could be expected to have brought the non-conforming transcript to the Court Reporter's attention so that appropriate steps could be taken to prevent the situation you now complain of. Particularly, since you knew that the daily transcripts were being posted to the Internet, and you should have known that the May 11, 1998 transcript did not comply with the Court's sealing order.
4. I first learned of this situation early this afternoon, when Mr. Henson advised me that there was a post on the net referring to the entirety of the May 11, 1998 transcript being posted. He further advised me that yesterday, in his exhausted state, after the jury's return, when someone else obtained a copy of the diskette for him from the Court Reporter, that he was not aware that the sealed portion was contained (without any indication of sealing) within the main body of the May 11, 1998 transcript. He furthermore told me that he had not posted the transcript to the Internet. Anticipating an overreaction from your overly litigious client, I told Mr. Henson to immediately create a declaration, setting forth the relevant facts, to immediately go to the Court and to file it with the Judge. I expect that will occur sometime this afternoon or tomorrow morning.
As for the curative actions you request in paragraph three of your letter under response, I am unaware of any effective remedial steps, particularly because many hundreds of copies of the transcripts have been downloaded all around the world. Accordingly, I would observe that the comparative negligence of your client, and its representatives, as outlined above, is completely responsible for this regrettable situation. In these circumstances, if you proceed with your typical OSC re contempt (a procedure your client uses ad nauseam, instead of sparingly) then we will seek sanctions against both your client and its counsel, for having the chutzpah to so proceed in the above circumstances.
On another note, I do inform you that we will be filing motions for a new trial, judgment notwithstanding the verdict, and, if necessary, an appeal against both liability and damages. We will also be filing a motion to obtain the jurors names and telephone numbers in order to investigate whether any jury tampering occurred. I may be also sending you a separate letter, setting forth an offer of settlement and waiver of appellate rights, and release of other claims that you are aware our client will shortly be filing against Rev. Barton and Scientology Investigator Edwin Richardson for assault and battery, and against the Church of Scientology, its Rev. Barton, Scientology Investigator, Edwin Richardson, and the Los Angeles Police Department for civil rights violations arising from the two false arrests of Mr. Henson and the dismissal of the two criminal complaints against Mr. Henson (expressly, in part because of the Church of Scientology's overly aggressive and harassive conduct towards him.
Very truly yours,
BERRY, LEWIS, SCALI &
Graham E. Berry GEB:sam
cc: Mr. H. Keith Henson
--Judge Whyte issued two orders to sort out the situation:
ORDER TO SHOW CAUSE RE CONTEMPT
Defendant H. Keith Henson is ordered to appear in courtroom six at 9:00 am on May 23 1998 to show cause why he should not be held in criminal contempt as a result of the posting of the sealed portion of the trial transcript to the internet in violation of the court's order sealing a portion of the transcript. SEE Transcript of the Proceedings, Case No. C-96-20271, May 11, 1998 at 429-430, 469. If defendant wished to file a response or a declaration setting fourth the reasons why he should not be held in contempt, he must do so no later than May 20, 1998. Since there is only a right to a jury trial in serious, but not petty, criminal contempt cases, the court finds that Henson is not entitled to a jury trial in these contempt proceedings since the maximum sentence imposed here would be limited to $5,000 or six months in jail. See US vs Rylander, 714 F2nd 996, 1005 (9th Cir. 1983). See also 18 USC section 3571, US vs Carpenter, 91 F3rd 1282, 1283-85 (9th Cir. 1996)
Ronald M. Whyte
United States District Judge
ORDER TO SHOW CAUSE WHY
TRANSCRIPT SHOULD NOT BE
Plaintiff Religious Technology Center and any other interested parties are ordered to appear in courtroom 6 at 9:00 am on May 22, 1998 to show cause why the sealed portion of the transcript of the May 11, 1998 trial proceeding should not be unsealed.1 Any party who wished to file a response must do so no later than May 20, 1998.
Ronald M. Whyte
United States District Judge
footnote 1 This excludes defendant H. Keith Henson's Trial Exhibit A, which remains under seal at this time. [Exhibit A was the letter to Judge Whyte with the text of NOTS 34 included: the infringing post.]
--Both motions will be heard on May 22 and 9 am. Will the Judge jail Henson? The contempt charge could result in 6 months in jail or a $5000 fine.
Reflecting on the motion to show cause why the transcript should not be unsealed, we recall that the Plaintiff's trade secret claims are toast, thanks to Whyte's earlier ruling. Discussion of NOTS 34 by a witness under oath, in the course of which small fragments of the text are disclosed, sounds like fair use to us. RTC would appear to have an uphill battle.
Somewhere underneath all this there is an unhappy federal judge. Will he vent his rage on Henson? Stay tuned. We will have a bulletin detailing the events of May 22.
2. Grady Ward has settled. The details are not yet available.
3. A big issue of Biased Journalism with trial commentary and an intriguing Rodent Report will be forthcoming soon.
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