It was 9-45 AM when I pulled into the Murrieta Superior Court car park after
a two hour drive from Los Angeles. January 5, 2010 was just another hot sunny
winter's day in Southern California. Murrieta Superior Court is part of
Riverside County's new South West Justice Center. "Mid winter here and it's
already hotter than many places get in mid summer," I said to The Angry Gay
Pope or just plain AGP.
The night before the prosecutor had told me
not to hurry down because all of that days trials had been "trailed" to the
next morning. "Will it be
Abelson?" AGP enquired. "It'll be Abelson," I said. "Moxon will be trying to
explain how he allowed the Las Vegas District Attorney to totally dismiss
all the charges against Camera Anonymous after his affidavit had caused the
Las Vegas Police Department to take the kid down at three in the morning
with two SWAT Teams. Abelson and Fraser will be livid at us strolling into
court at 10 AM after they had been sitting there since 8:30 AM."
We checked into Department 104
and learned that the Prosecutor was up in Department 201. The prosecutor
joined us outside the courtroom and I handed him a
one inch thick
pre trial motion
requesting the case be dismissed "in furtherance of justice"
or the jury given a special credibility instruction in connection with Scientology's
Suppressive Person policies and the policies on lying, "acceptable truths" and
"false data outflows." The carrot and stick system of weekly statistics,
"conditions," "discipline," "suppressive person declares," and the loss of one's eternity
created such a probability of perjury that AGP could not receive a fair trial
I argued in the memorandum of law supported by exhibits. "I see the first forty
pages are what you faxed me yesterday. I promise you I'll read the rest. It's
really interesting although I don't agree with your defenses of provocation,
justification and necessity," said the young prosecutor. I expected that. However,
one purpose of the motion was to educate him and the court about the case from
the defense perspective and to soften the DA and Scientology in connection with
any further plea bargaining. Several Deputy District Attorneys had already attempted
to convince AGP to accept a plea bargain. "No way," he had always responded
while reminding me of my quip that "you cannot vandalize a private pansy on
public property." However, that was when he still had a job. The banks had stopped
lending money for studio features and many Hollywood film and television people
were now on unemployment, if they were lucky.
is in charge of security at Gold Base HQ. She earns up to $50 per week.
Everyone saw this case as an absolute loser unless the jury ignored the law.
There was the video evidence of him doing it, the police report and video evidence
of him admitting it, and all of the associated evidence. The prosecutor could
not understand why we were taking it to trial. I had repeatedly raised
the prospect of "jury nullification" with the prosecutor and I knew that he
was worried that this case was an ideal candidate for a jury verdict of not
guilty in protest at the District Attorney taking up two days of their time
with a vandalism case involving pansy stomping. On the other hand, if the jury
found AGP guilty the judge may be irritated at AGP for not having pleaded guilty.
At this point the judge would certainly fine him, order full restitution and
could require community service or jail time. Restitution and fines could exceed
$3,000.00 and AGP was unemployed. Juries often surprise the most experienced
judges and lawyers with unexpected verdicts. "Every trial is a crap shoot,"
say most gray haired counselors. However, I wanted to "pull a rabbit out of
the hat" and "win a hat trick," three wins in a row. We had some ammunition
with what we considered suspect and perhaps altered restitution invoices. If
I could get the Suppressive Person, Lying and Ethics policies into evidence
then we had a real shot at nullification. The prosecutor and I would have fun
with the trial but would AGP have fun with the result? If we couldn't quickly
resolve the case by negotiation we would have to answer "ready for trial" and
spend the next ten days waiting for a courtroom and jury.
is not a Scientologist. He is in it for the money. Apparently
he makes over $700,000 per year.
The prosecutor found Elliot Abelson and Catherine Fraser outside and they soon
joined us. Abelson had driven down the day before and had spent the night in
a local hotel. "Why don't you stay at Gold (base)?" AGP asked. "I
do sometimes," Abelson replied. "Would you like to stay with
me?" "The water is contaminated with fecal coliform.""You're
not going to travel back and forth every day of the trial?" asked Elliot of
me. "Of course," I replied. "You know my client cannot afford to pay for me
to stay in hotels and I certainly can't." "You're still going to try the
case?" asked Elliot. "Sure," I said. "We're filing a motion and we'll get
the Suppressive Person policies in and show provocation, justification and
necessity-there was no where to stand without being on the busy highway and
he had stood there without objection only three days before while two
sheriffs arrested Mark Bunker and ‘Mark Lowell.' "Suppressive Persons?" enquired the prosecutor.
church considers AGP a Suppressive Person," I said. "And Berry's the biggest SP of them all," quipped Abelson.
"We just cannot get rid of him. You've survived
longer than any other lawyer," he said looking at me. "That's right. As I
told a German television crew recently, you keep knocking me down and I just
keep standing back up."
The prosecutor explained that his office policy meant
he was unable to negotiate the restitution issue now that it was trial day one.
Abelson and I wandered off to chat about it. After five minutes we returned
with the first part of a potential deal. Scientology would waive all restitution
but was adamant that there be a court order that AGP stay away from Golden Era
for three years. I argued over the duration but Abelson would not budge. Round
two was with the prosecutor. He agreed there would be no fines, only court costs
and it would be three years summary probation and stay away from Golden Era.
Round three was between AGP and me. He agreed that a plea bargain was a more
sensible outcome to the alternative if we could not convince the jury to look
beyond the video evidence and admissions. The next round would be with the judge.
|Don't tread on me
Back in courtroom 104 the case of The People v. Myers was called by the clerk.
The Prosecutor and I announced our appearances and suggested that we have a
side bar regarding a possible disposition of the case. A visibly pleased judge
invited us back into his Chambers. Scientology's agreement to waive restitution
was necessary so Elliot Abelson accompanied us. "This is the national trial
counsel for the Church of Scientology," said the prosecutor. The judge seemed
very impressed. The prosecutor and I explained aspects of the case to judge
and that we had reached a disposition. "I think we might just go to trial so
I can spend the day listening to Mr. Berry and his accent," joked the judge.
We went over the disposition. I took another crack at the duration of the stay
away order. "Eighteen months," I said. "I've got no authority to agree to that,"
said Abelson. "Well make a telephone call," I replied. "How about two years?
I added. "Two years it is," said the judge. "I think that's fair."
Back in the court room the deal was formally put on the record: a plea of
guilty to one charge of misdemeanor vandalism, court costs of $205, two years
summary (unsupervised) probation (obey all laws) and stay 1,000 yards away from
Golden Era near Hemet for two years. "Pansy Gate" was over without deciding
the issue of whether a private pansy on public property, without permission
and blocking the public's right of way, can be vandalized." Apparently the pansies
have been replaced by thorny roses so the issue may never be resolved.
GRAHAM BERRY, ESQ.
JANUARY 5, 2010
LOS ANGELES, CALIFORNIA