Gerry Armstrong-- Reporter's Transcript of Proceedings 04-20-1984 Case No. C 420153

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

DEPARTMENT NO. 57 HON. PAUL G. BRECKENRIDGE, JR., JUDGE

CHURCH OF SCIENTOLOGY OF CALIFORNIA,

Plaintiff,

vs.

GERALD ARMSTRONG,

Defendant.

MARY SUE HUBBARD,

Intervenor.

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NO. C 420153

REPORTER'S TRANSCRIPT OF PROCEEDINGS

Friday, April 20, 1984

VOLUME 1

Pages 200 through 327, incl.

APPEARANCES: (See next page.)

NANCY L. HARRIS, CSR #644
DIANA R. GRACE, CSR #1672
Official Reporters

APPEARANCES:

For the Plaintiff
and Intervenor:

LITT & STORMER
BY: BARRETT S. LITT
Paramount Plaza
3550 Wilshire Boulevard
Suite 1200
Los Angeles, California 90010
(213) 386-4303
-and-
BARRETT S. LITT
BY: MICHAEL S. MAGNUSON
The Oviatt Building
617 South Olive Street
Suite 1000
Los Angeles, California 90014
(213) 623-7511

For the Plaintiff
Only:

PETERSON & BRYNAN
BY: JOHN G. PETERSON
8530 Wilshire Boulevard
Suite 407
Beverly Hills, California 90211
(213) 659-9965

For the Defendant:

CONTOS & BUNCH
BY: MICHAEL J. FLYNN and
JULIA DRAGOJEVIC
5855 Topanga Canyon Boulevard
Suite 400
Woodland Hills, California 91367
(213) 716-9400

200

LOS ANGELES, CALIFORNIA, FRIDAY, APRIL 20, 1984, 9:08 A.M.

---o---

THE COURT: All right, let's see. The next motion

is, I think, motion in limine on the subject matter of

admissible evidence and testimony of various witnesses;

is that what you next have suggested?

MR. LITT: Yes, your Honor.

THE COURT: Bear with me. Everything is sort of ---

I have got it.

I gather the first item is evidence relating

to "shedding, destruction of, vetting" -- v-e-t-t-i-n-g --

"of documents allegedly carried out by members of the Church

of Scientology.

MR. LITT: Yes, that is correct, your Honor.

THE COURT: All right, do you want to address that?

201

MR. LITT: Yes, Your Honor.

I have a suggestion -- I don't know whether the

court will want to follow it or not -- about how to do this.

We have set out in our motion the areas which

we determined, as best we could from the discovery in the

case and the pleadings in the case, that we felt should not

be admitted; and I think it might be easier if the defense

explained why these various areas were relevant and we respond,

since really to some extent we are striking blind because

we are not exactly sure what it is or what their theories

are. We made our best estimate here.

But it seems to me it would perhaps be more

expeditious to have a reversal of the order because I will

argue and Mr. Flynn will argue, and I will want to respond

to the actual theories he puts forward rather than with respect

to what our guess is.

THE COURT: All right.

Do you want to offer any argument relating to

this subject, Mr. Flynn?

MR. FLYNN: I do, Your Honor.

I think I am the one now being placed in the

position of being a little blind because we both have the

advantage of each other's briefs; but I don't really know

what their position, in terms of oral argument, is before

the court.

But basically our position is this: There are

all those categories which are set forth in their motion.

With regard to the shredding of all the 14 or 15 categories --

202

of all the 14 or 15 categories, we think several are moot.

We don't intend to offer any evidence on some of them; but

the most important one, we think, is the shredding one.

The shredding and the Fair Game Doctrine are the two most

important.

But the shredding issue is probably the most

important because, one, it explains the circumstances under

which Armstrong came into possession. On the conversion

count what the plaintiff and the intervenor would have the

court or the jury believe is that he, all of a sudden, had

these documents dumped into his hands and then gave them

to Mr. Garrison without any real explanation of the

circumstances under which they came into his hands. We think

that is very important because it relates to the possessory

interests that he had and the possessory interests thereafter

that Garrison had, particularly when you get into the

particularization of the documents because, as I indicated

to the court yesterday, I don't believe that anyone, in all

candor, knows what is in those documents, probably, other

than Garrison and Armstrong. And without the court or the

jury understanding exactly how that occurred, we think we

would be deprived of the most essential defense that we have

with regard to the possessory rights of Garrison and Armstrong.

203

Secondly, the issue of Mr. Armstrong and

S.P. Declare, having been accused of stealing the documents,

and I am not sure the court has seen the copy of the Declare

yet, but it is in the record, in addition to being accused

of stealing them, he was accused of making false statements

about Mr. Hubbard, and that is right in this S.P. Declare.

He was then placed in the position of having

to prove that what he said, particularly where he thought

that there was going to be a pending lawsuit against him,

of having to prove what he said about Hubbard was true.

If the circumstances under which he came into possession

of the documents was not allowed into evidence, then his

state of mind with regard to his belief that the plaintiff

and the intervenor would destroy the documents and destroy

the evidence of what the truthfulness of his statements

were, then again he would be deprived of one of his funda-

mental defenses.

Lastly on the issue of credibility, we believe

that evidence that a party intends to destroy evidence

is specifically relevant to the question of credibility,

particularly where this, and this intervenor for a period

of five years had been destroying evidence in connection

with numerous civil and criminal cases pending across the

United States. This is particularly relevant based on

the Smith case which has recently been decided in California

on the spoliation of evidence.

So, these three items, we think, justify this

particular piece of evidence coming in. In fact, of all

204

the evidence that we intend to introduce, my personal

conviction is that the most important piece of evidence

is the shredding evidence because it explains to the court

and to the jury what the whole case is about, that he

obtained possession of documents. The documents had certain

types of information in them. He gave them to Garrison.

When the organisation discovered what type of information

was in them, they refused to conform to the truth.

They then attacked him and then sought to get

the evidence back for the purposes of destruction, and

they have a history of destroying the documents. So, for

those reasons we think it should come in.

Lastly, there is the issue of value and damages.

If the evidence is that the documents were going to be

destroyed, then the issue that has to be raised for the

last year and a half in the mounds of paper that have been

filed that these documents have intrinsic value of millions

of dollars because they are the memorabilia of their founder,

then that evidence would clearly be disputed by the fact

that they are about to destroy it, number one, and number

two, as the court is going to hear, the only person who

stood between the destruction of these documents and the

shredder itself was Gerald Armstrong.

The documents were brought to him. It was

his decision to make. He brought them to Laurel Sullivan

and they were preserved, but at that critical instant in

time, which is the focus of the circumstances under which

Armstrong came into possession, at that critical instance

205

the sole discretion to destroy or keep these documents

was left in the hands of Gerald Armstrong.

If the plaintiff, the intervenor, and Mr. Hubbard,

the absent party here, really thought the documents had

value, then they wouldn't have left Mr. Armstrong with

the sole discretion as to whether to destroy them or not.

So, on the issue of damages we think it is also relevant.

THE COURT: All right, Mr. Litt, what is your position?

MR. LITT: Your Honor, let me start out explaining

some circumstances and again I will because there are

disputed facts on some things, for purposes of what I say,

I will rely only on what Mr. Armstrong has said so that

I am not dealing in an area where there are factual disputes.

Mr. Armstrong claims that there was a shredding

of documents, not these documents, that occurred in January

of 1980. Mr. Armstrong may contend it was to hide evidence.

If we have to get into it, we will establish that that

is simply false, but I won't address that at this point.

These were not the documents that we are talking about.

What Mr. Armstrong says occurred is that while

this was going on, a box from an area called "Our Storage"

which had Mr. Hubbard's personal possessions, furniture,

a variety of materials, a woman came up to him and said,

"What should happen to these?"; a single box containing

a small number of materials.

Mr. Armstrong took the box, took then to his

organizational senior, said, "What should happen to these?"

The decision was clearly they should be saved.

206

One, they are L. Ron Hubbard's materials and should not

be destroyed.

Two, they are of value and should not be destroyed,

and then, your Honor, Mr. Armstrong petitioned to obtain

a post to take that box, but not just that box because

we are talking about a single box that he testifies about,

but some 25 other boxes that he had never been asked about

what to do with, and that is the basis of his archives,

but that is only the beginning, your Honor.

For the next 22 months his job is to collect

up these materials in an archives. There are, your Honor,

some 4,000 pages of original materials. Those original

materials were in Mr. Hubbard's archives that Mr. Armstrong

obtained in September of 1981, 18 months after this purported

shredding, and Mr. Flynn says these documents were saved

by Mr. Armstrong from the shredder in January 1980. It

is a complete distortion of Mr. Armstrong's own testimony.

He says one box.

Your Honor, there are tens and tens of thousands

of pages that were in the archives. Mr. Armstrong only

took a small percentage of what the total archives are

and those amount to not one box but approximately in terms

of the size of the box that he found, 17 times that amount,

just what was given, not what was in the archives because

that would be 100 times the amount.

207

So that on the first issue, whether or not there

is any basis in the record to contend that Mr. Armstrong

saved these documents -- and when I say "these," I mean the

archives in total or what was under seal. I don't believe

that anything that was under seal was in that box at all;

if so, a very small part of it. The materials regarding

Mrs. Hubbard that came from her archives were not.

Mr. Armstrong never even saw those until, literally, a year

and a half later so that it cannot explain the circumstances

of his possession of these archives documents because the

two are completely independent.

There is no rational relationship between the

fact that one set of documents, assuming Mr. Armstrong's

version, vas being destroyed and the fact that this other

set of documents was saved. That was his job. That is his

testimony. It was his job to preserve them. He was assigned

that position. He was paid by the church to preserve them.

He obtained money from the church, Your Honor, to go and

purchase materials. We have purchase orders where he was

given money to go and buy materials that were put into the

archives.

So that on the first theory, which is that this

somehow goes to a right of possession, it simply -- it is

completely irrational. There is no basis on which one can

argue that what happened with that box provides a basis for

saying that he saved these materials, and he has never

contended that they were his. He never contended that because

he, quote, saved them that they became his. In deposition

208

he said the materials are Mr. Hubbard's. Mrs. Hubbard's and

some Scientology organizations. That is a quote from

Mr. Armstrong.

Now, Mr. Flynn then slides into this Declare;

and I suppose I may have to begin to get into the issue now

because he asserts that.

THE COURT: We are not trying the case, counsel. It

is just to determine whether or not there is some basis for

receiving this evidence --

MR. LITT: I understand.

THE COURT: -- and whether that is outweighed by any

prejudicial effect.

MR. LITT: I understand that, Your Honor. But the

first basis is; Mr. Flynn makes statements that are not

supported by the record and the testimony of his defendant;

and, therefore, the reason I spell out those facts is because

when the facts, as he testifies to them, are known, there

is no rational basis. There is no reasonable relationship

to anything that is relevant; because given his own testimony,

this is not relevant.

Then he argues that somehow what was stated in

this Declare -- this takes us directly back into the First

Amendment issue in the case. A Declare, Your Honor, is an

internal excommunication notice within Scientology; it is

nothing else.

There is an internal procedure by which a person

who is declared can challenge that Declare or can get back

into good standing with the church. It is a statement that

209

you are excommunicated from the church. It refers to

Scientology crimes, not civil crimes. That is the basis

of it.

Mr. Flynn says that in this Declare, in this

internal document, that Mr. Armstrong was placed in the

position of having to prove that what he said about Mr. Hubbard

was true and that somehow, therefore, shredding of documents

can come in. The Declare has nothing to do with that. It

is not justiciable. It is an internal church affair. It

cannot be intruded into by the court. That is point one.

But point two, it is not an accusation in any

court. Declares are issued commonly, including to people, by

the way, Your Honor, who remain in the church. It is

not exclusively for people who leave the church. It has

to do with internal systems and procedures, so that there

cannot --

First of all, the court cannot allow the testimony

about the Declare to come in under the First Amendment.

But, secondly, it has nothing to do with anything; and what

is going on is: Once again the defendant is putting forward

theories and if these generalized claims of destruction

of evidence, which are not supported by the record in this

case about these documents, are permitted to come in, the

prejudicial effect is obvious. The relevance, if it has

any, is extremely remote, given Mr. Armstrong's own testimony;

and there is no -- there is no evidence that a person can

rationally conclude that there was any intention to destroy

these documents.

210

THE COURT: It seems to me that is a question for the

jury to decide, counsel. You are raising a number of points

which go to the ultimate issues in this case, but I am not

dealing with the ultimate issues. We are dealing with whether

or not evidence should be received. And it seems to me he

has a right to explain why he did what he did, when he did;

and it is for the jury to determine whether that is truthful

or not.

If this is part and parcel of his justification --

and apparently there is documentation from other cases that

there was, at different places, different times, shredding,

that is apparently not a secret and that has been judicially

established, I gather. It seems to me --

MR. LITT: I don't know that that is judicially

established.

THE COURT: Pardon?

MR. LITT: I am not aware that that has been judicially

established.

THE COURT: Maybe it hasn't, but I had a feeling I

had read somewhere there was some evidence of that that had

been referred to in some of the cases that have been published,

various decisions in the United States over the last 20 years

dealing with the Church. And it seems to me that he is

entitled to present this, and it seems to me if it is a

substantial basis for his justification then it is something

he is entitled to present. And if it isn't true, if it can

be established it isn't true, then that is for the jury to

determine.

211

MR. LITT: Your Honor, the point is that they are going

to introduce evidence about other shredding activity which

will prejudice the jury, which has nothing to do with these

documents. That is why it can't come in. That is why I

have to explain the circumstances. Its prejudicial effect --

the real purpose is to say, "These people would destroy

anything," not these documents; because there is no evidence

that a single document was ever destroyed of these archives

or anything that Mr. Armstrong took.

THE COURT: I got the impression that there was an

operation going on out there at the Springs and that things

were being shredded and that he came across this box and

inquired as to whether or not it was something -- what should

be done with it, and he was advised that apparently it should

not be destroyed. So it seems to me you have relied upon

that in some of your statements, I believe, or briefs, that

this is how the whole thing originated. And it seems to

me that that is part and parcel of this case; and whether

it is true, that is for the jury to decide. I think that

we can --

MR. LITT: Your Honor, they intend not only to introduce

evidence of how Mr. Armstrong came into possession of this

box, they intend to introduce testimony from people talking

about a variety of shredding activity.

Mr. Flynn said it yesterday, "This was the fourth,"

according to him, "of some series of activities."

Are we going to get into all of those?

THE COURT: Well, I don't know.

212

What do you have in mind in that respect?

MR. FLYNN: Your Honor, what I have in mind is just

this one shredding operation; and if evidence is introduced

to try to rebut that, then I think I could then introduce

evidence to show a pattern of conduct. But, in any event,

all I intend to introduce right now is the circumstances

surrounding how this box came into Mr. Armstrong's possession.

213

THE COURT: Well, his state of mind with respect

to, I assume, what might happen to it if it were returned

to the church.

MR. FLYNN: Exactly, your Honor.

MR. LITT: I just want to make clear that it is our

position that his state of mind is not an element of any

of the torts in this case, and if I understand the court

correctly, it is basically on the theory of this justifi-

cation defense that the court referred to yesterday that

it is being found to be relevant. I just want to understand --

THE COURT: Well, you are understanding it correctly.

Well, I can give a limiting instruction that

they are not to consider it for any other purpose unless

the court instructs them to the contrary.

I will deny the motion except that it will

be received for the limited purposes as we have indicated

and in dealing with this one situation out there at

Gilman Springs, and that the defense will not be permitted

to go into other shredding operations without first bringing

it to the attention of the court outside the presence of

the jury so that the matter can be thoroughly argued by

both sides.

Number two is the suggestion that Mrs. Hubbard

and Mr. Hubbard are not legally married. Do you have any

intention to get into that, counsel?

MR. FLYNN: No, your Honor.

MR. LITT: Let me raise a question about that. He

says in his response that he doesn't intend to get into that.

214

He does intend apparently to make the contention or to

try to introduce into evidence a marital agreement signed

in, I believe, 1952, 31 years ago between Mr. and Mrs. Hubbard,

which, according to the characterization, says that either

side will grant a divorce to the other without a property

claim if either side desires, which has never occurred.

He does say he intends to get into that to

argue that she has no right to the joint property of her

and her husband.

THE COURT: I don't see what that's got to do with

whether or not they are legally married. We can talk about

some other points on that subject.

He says he is not going to present anything

that they are not legally married, so that motion is granted.

There will be no evidence or no suggestion that the parties

are not legally married.

MR. LITT: What I am reading, your Honor, is that

when we wrote this, we did the best we could as to what

the type of evidence was. They have stated what evidence

in this regard --

THE COURT: Well, we can deal with that as an additional

item if you want to. Let's just deal with what you have

got here first.

MR. LITT: Okay.

THE COURT: Three, the fact that defendant Armstrong

has filed a cross-complaint against the Church of Scientology

of California and other parties with the allegations on

which the cross-complaint is based.

215

Do you have any intention of getting into that?

MR. FLYNN: We don't intend to introduce it, your

Honor.

In your Honor's initial statement to the jury

as to what the case is about, we think that your Honor

should explain that there is a cross-complaint that they

are not hearing. But in terms of putting it into evidence,

we don't intend to.

MR. LITT: The existence of a cross-complaint has

no relevance either in any indications from the court or

in evidence in the case. I don't understand what -- the

effect of the court saying that there is a cross-complaint

is to give more weight to it than if Mr. Flynn were to

say it.

THE COURT: Well, it seems to me it has no relevancy

except it might show some bias on the part of the defendant

and I would think the plaintiff might want to get into

that, but if he is not geting into it, I don't see any

reason to deal with it so I will make the order that there

is to be no reference to the cross-complaint and with all

of these things where I am making an order prohibiting

something, it is always subject to the proviso that if

something else develops that makes something rational or

reasonable or relevant, it can be brought to the attention

of the court outside the presence of the jury. We will

discuss it and the court would be willing to reconsider

the position. This is a starting point.

Four, any alleged misrepresentations to fraudulent

216

practices committed by L. Ron Hubbard, Mary Sue Hubbard

or the Church of Scientology or any scientology organizations

or any individual acting on behalf of any such organizations.

MR.FLYNN: Well, your Honor, I thought -- I think

that was extensively discussed yesterday. That is what

the case is about in terms of not only Mr. Armstrong's

state of mind but on all of the issues, virtually every

issue in the lawsuit And every count as to why he did what

he did.

For example, if the invasion of privacy count

and the breach of fiduciary duty counts are tried, then

the upshot, the result of trying those issues is to go

into those facts. It isn't that we are intentionally trying

to put fraud or misrepresentation before the jury, but

in putting before the jury the issues of public figure

and what public interest is involved and whether or not

over a period of years certain statements were made about

Hubbard, and how the documents relate to the public interest

and public figure issues of what was said about Hubbard

in the context of these documents, the documents, as I

have indicated from the outset to the court, are going

to disprove what the public statements have been about

Mr. Hubbard. That is the essence of the entire case.

In terms of trying to prove that L. Ron Hubbard

and Mary Sue Hubbard or the Church of Scientology of California

are frauds or involved in fraudulent activities, that is

not the purpose of the introduction of the evidence. The

outcome of the introduction of the evidence, because it

217

relates to the documents, is, however, that.

THE COURT: Mr. Litt?

MR. LITT: Well, your Honor, we did argue this at

some length yesterday and I am not going to go through

the whole argument. I do want to make a couple of comments.

The first is I just want to say again that, and we will

have to return to this a little later just so I can understand

how we are going to handle certain things, but the First

Amendment implications of what this court is apparently

permitting in allowing Mr. Armstrong's beliefs about fraud,

alleged fraud by the church, L. Ron Hubbard, the first

amendment implications of that in the whole way that the

case is tried are, in my view, beyond description.

I can only reiterate that I believe that to

the extent that the court adopted a theory that by a church

bringing a suit it somehow has less of a standing to raise

its First Amendment interests, if that was the import of

the court's ruling, I think that is incorrect and I would

ask that the court give it further consideration.

THE COURT: Well, I think that that may misstate

what I am saying. I am saying that if the church seeks

to obtain money damages, the defendant has a right to a

fair defense and a fair defense may include the reference

to these writings or documents as an effort to explain

what he did or attempt to justify it under the law.

MR. LITT: He is trying to justify it on a theory

of religious fraud which is not justiciable and which can't

go to a jury. That is the basis of what we are saying. He is

218

trying to say, I believe, that they were a fraud. A court

can't make that determination that they were a fraud.

Therefore, it can't be a defense.

I am just trying to say that the logic, I think,

of what has been done and what is going to happen in this

case as a result, Mr. Flynn said it himself, it is not

my purpose but it is the outcome, and what this court is

permitting, if it allows that to happen, is a trial of

religious fraud on a theory of defense.

THE COURT: You are the one that is pursuing these

actions. I am not. Defendant is not pursuing these in

this action.

We can deal with the case solely as an equitable

matter if the plaintiff wants to do so, but you are seeking

monetary damage. But at the same time you are saying I

don't want punitive damages. I give up my claim for that.

I don't want anything other than the nominal damages on

the amount of the conversion. So we are trying this, I

guess, for whatever expenses were involved, and if you

can proceed on a theory of establishing that there was

conversion and that is what we are trying it for, you are

seeking this release, all right, they have a point of view.

They have a claim that they have certain rights and they

are entitled to present them, and I can't put blinders

over this case in order to present only a one-sided picture.

There are two sides apparently to this lawsuit, as most

lawsuits, and it is for the jury to decide.

MR. LITT: I would like one point of clarification

219

because I am going to have to, as I will explain further

on, have some discussion with my clients concerning the

implications of some of the court's rulings, but just so

I understand what that ruling is, is the court's ruling

that this is relevant to the damages claims but not relevant

to the equity claims?

220

THE COURT: No, I am not.

MR. LITT: There is a question --

THE COURT: I don't think I can decide the case on

an equitable basis without hearing the evidence presented.

At the same time --

MR. LITT: But, Your Honor, you started out saying

that we are pursuing the damages claim. That may be, but

we are also pursuing the documents; and there is no -- there

is no compromise. There can be no give from the church's

point of view and Mrs. Hubbard's point of view about returning

the documents.

THE COURT: I am not suggesting there should be.

MR. LITT: If these matters are relevant according

to the court's theory, to the equitable claim, then whether

we are pursuing the damages claim doesn't really resolve

anything; because even if we weren't pursuing the damages

claim, all these issues would have to be tried, and then

the court would be ruling that trying to get the documents

back by the church opens these matters up.

THE COURT: Well, I would think that the extent that

they -- we wouldn't be dealing particularly with any questions

of justifications on the part of the defendant or his state

of mind or why he did what he did. We would be dealing more

with who has rights to this property at this time; and if

it is evidence, it may be that it would be required to be

preserved in some fashion. But the point is that this is

being juxtaposed in this context because they have a right

to defend themselves against these allegations that you have

221

raised.

MR. LITT: Yes, but the reason I raised this -

THE COURT: I am not saying that I, at this time, am

deciding what evidence could be received in the equitable

action. I don't think it would be necessary to get involved

in many of these things that you have discussed without the

thing being tried; but we have some maxims, "He who seeks

equity must do equity." We have some other problems that

deal --

MR. LITT: The unclean hands defense is not in this

case, Your Honor,

THE COURT: We would have to deal with raising all

these problems to a jury trial, which sometimes creates

problems,

MR. FLYNN: Your Honor, if I could interject at this

point. The defendant is giving serious consideration --

and we may know by noontime today -- of waiving our jury

claim and having the case tried solely before Your Honor

in whatever procedural posture it ends up. We feel that

that could greatly expedite this case.

In the introduction of evidence in this case

the problem of sanitizing before the jury all this evidence

could result in a prolonged trial and numerous side bar

conferences with regard to what they are going to hear and

what they are not going to hear. So we are giving serious

consideration, in order to short-circuit what is seemingly

turning into potentially a four to five week trial -- we

are giving serious consideration to waiving the jury.

222

The plaintiff and the intervenor in this action

tried to block our jury rights, and they have taken a very

strong position that they don't want a jury. So in that

light I am informing the court of this at this point so

Mr. Litt will also be informed. If we let the court know

by noontime, then a lot of the problems with regard to what

has to be sanitized in front of the jury will be obviated.

MR. LITT: Your Honor, I am going to object to the

comment that we have tried to block their jury rights. I

don't know what Mr. Flynn is talking about.

THE COURT: I don't know. I assumed that the plaintiff

was seeking the jury trial on these matters, primarily.

MR. LITT: No. The defendant had requested the jury

trial. We had originally waived jury trial.

THE COURT: It is immaterial to me.

MR. LITT: I object to the characterization that we

have done anything to block their jury rights.

THE COURT: I will sustain the objection. I am not

considering that in any fashion.

Insofar as item No. 4, I will receive the evidence

as it relates to, obviously, the issues dealing with

Mr. Armstrong that we have talked about before. Obviously,

at the same time, we are not going to go out on a fishing

expedition as to other purported improprieties that have

no relationship to this particular situation.

By denying this motion I am not suggesting that

we would go out and get involved in other things other than

what have been specifically referred to by Mr. Flynn in his

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stated offer of proof as to what Mr. Armstrong is going to

be testifying to.

Item 5, alleged criminal or tortious activity

by L. Ron Hubbard, Mary Sue Hubbard, Scientologists, the

Guardian's office or any Scientology organization. Well,

obviously, just in general something like that could not

come in. Now, as it may relate, as we talked about in item

No. 4 or in item No. 1, in the more specific situations there

may be relevance to some of these things; and so I don't

know whether this is intended as just a general blanket type

of objection.

MR. LITT: Your Honor, in part it is and in part it

reflects the problem that we have, especially in terms of

the court's rulings, which I think is best saved for the

end.

But we are going to ask the court, just for case

management and so we even know what it is we are supposed

to respond to in the way of this novel affirmative defense

that the court has permitted, that we get -- that the court

require some specification as to the evidence that the

defendant intends to introduce.

I think the court will see more, when we argue

some of the other things, why that is necessary; and, in

part, I think the real solution to this problem can only

be posed then. We just know from experience, in general,

the kinds of charges that get made. You have heard many

of them in the courtroom today, ranging from purported theft

of $250 million from the Church of Scientology by L. Ron

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Hubbard, its founder. You name it, and we hear it. So we

raised it simply to flag the issue in general.

I would just save for the end a discussion of

procedurally how we are going to proceed, in fact, so we

know what we are dealing with and how to proceed with the

case. Obviously the general illegality, the court has said,

is not admissible. I don't know what it is that the defendant

intends to introduce in this regard. I haven't the faintest

idea at this point, and we would like to know if there is

any --

THE COURT: Mr. Flynn has been talking about it. Of

course, I realize that both counsel in their presentations,

that are somewhat emotionally charged, have strayed somewhat

from relevant matters in their eloquence.

At the same time, I think that basically what

he is saying is what he said this morning insofar as what

Mr. Armstrong is going to testify to. And certainly all

of the Supreme Court cases say that we are protecting what

people believe but not how they act or what they do; and

if conduct was directed at Mr. Armstrong's actions, which

cause him to have certain beliefs and do certain things, it

seems to me those things are relevant and admissible.

225

So as a general blanket proposition, I will

grant your motion.

Six, alleged tortious or alleged activity by

the Church of Scientology or the Hubbards against individuals

viewed as enemies of scientology.

This, of course, again, I suppose, if it is

something that Mr. Armstrong knows about or relies upon

or believes, it may well be admissible as a justification

for any conduct that he took. As it may have no relationship

to that, it would have no admissibility clearly.

MR. FLYNN: It is limited to that, your Honor.

THE COURT: All right. As a general proposition,

I will grant the motion excluding matters which are more

specifically relevant to matters which Mr. Armstrong knew

about and more believed or reasonably believed and relied

upon.

Item seven, an incident which took place in

April 1982 regarding a dispute over photographs between

Gerald Armstrong and certain scientology staff members.

I think Mr. Flynn has already mentioned this

in passing. This had to do with his ideas as to what might

happen with property.

MR. FLYNN: That is exactly correct. This is a key

fact in this case as to what caused him to come to me.

He believed that since they came and they stole these

photographs at the same time he was declared, that they

were going to Garrison once they knew the contents of the

documents and steal them all. That is why he hired an

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attorney.

THE COURT: Any comment, Mr. Litt?

MR. LITT: My only comment, your Honor, is that if

theory is what is in Mr. Armstrong's mind, which is just

wrong once you adopt that premise, I can't really argue

on the photo.

Our position, I think, is clear.

THE COURT: All right, then, the motion will be denied

as to item No. 7.

8, the Fair Game Doctrine.

MR. FLYNN: Our entire case, your Honor, is predicated

upon the fact that Mr. Armstrong went to a lawyer because

he observed for ten or 12 years the specific application

of the Fair Game Doctrine, not as a personal church policy,

and he does not intend to testify about all of the instances

where he thought applied.

For the court's information, the instances

where he thought applied are just shocking. They involve --

MR. LITT: I thought he wasn't going to testify about

that. What does it have to do with this?

MR. FLYNN: He is not going to, but I am going to

explain the background of the doctrine.

MR. LITT: I am going to object to this. I think

it is a blatant effort to prejudice the court. Mr. Flynn

has just said he doesn't intend to introduce this evidence,

but he wants you to know about that. I don't understand

that. I don't understand such a procedure. If it is not

relevant and he is not attempting to assert it, and now

227

he is suggesting that this court is going to sit as the

trier of fact in the whole case and he will put in all

of those things that he, quote, doesn't intend to introduce.

If it is not proper, if he is not arguing it is admissible,

then he should not be presenting it to the court for the

court to determine if it is admissible.

MR. FLYNN: If I can respond to that.

THE COURT: Yes.

MR. FLYNN: In the Allard case, as the footnote indicates,

the trier of fact in that case or the judge took evidence

initially or took it apparently de bene from what

Mr. O'Reilly's office tells me, and the footnote seems

to suggest and give the rest of the trial to the defendant

in the action to introduce evidence that a Fair Game Doctrine

had been canceled as they had alleged in their briefs and

apparently during the course of the proceeding. They never

did introduce evidence that the Fair Game Doctrine had

been canceled, and the reason, I submit to the court, is

because if they had introduced evidence that it had been

canceled, the plaintiff in that action would have been

entitled to introduce evidence that it had not been canceled,

and picking up on Mr. Litt's suggestion, I will not go

into the details.

Suffice it to say, that the application of

the Fair Game Doctrine over the last 10 or 12 years the

defendant knew about and the 18 years that it has been

in force is probably, to quote the U.S. attorney of the

Federal District Court --

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THE COURT: I don't want to get into that. Just

deal with what the evidence might be.

MR. FLYNN: It basically involves a rampant attack

on everyone who ever opposed the Church of Scientology

with every crime virtually that could be committed, and

everything that could be done, ranging from "we suggest

death," all the way to simple, frivolous lawsuits, and

I won't get into the details. The details would take me

two hours just to give an outline of.

Now, Mr. Armstrong, because of his position,

knew and saw and heard, for example, of assassination plots.

He knew what the Fair Game Doctrine was. Not only did

he know, he was drilled on a Pact called the PTS and SP,

which basically taught him as a Sea Org member how to

deal with enemies.

The Pact is some two inches thick, which we

don't intend to put into evidence, but basically explains

how the Fair Game Doctrine works and what you do to enemies

of the church.

It has got nothing to do with internal church

policy. In fact, if it had to do with internal church

policy, then either one of two things would occur.

In light of the reality in the real world for

the way the Fair Game Doctrine operated, it would make

all Church of Scientology policy non-religious or all of

it religious.

It is simply inconceivable, and I would suggest

that in the criminal case of the United States vs.

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Mary Sue Hubbard they raised the religious defense that

they were entitled as a religious matter, and it is suggested

right in the case when the District Court of Columbia Court

of Appeal dismisses it in a footnote as being just entirely

frivolous, but they address some 30 or 40 pages of their

memo to it that breaking into 136 state and federal offices

was not entitled to a religious defense.

But that brings up probably the basic logical

problem with claiming that the Fair Game Doctrine is a

religious doctrine. Assuming an entirely legitimate religious

organization, one that has been recognized as such for

hundreds of years, the Presbyterian Church, the Catholic

Church, whatever, took a doctrine and said, "Well, the

fundamental doctrine of our religion is that anyone who

opposes our religion can be lied to, sued, cheated or destroyed,

which is the quote from the Fair Game Doctrine in part."

Well, if Mr. Litt was correct and all that meant

was that in the ecclesiastical circle of that legitimate

religion the person could be brought in before the

ecclesiastical court or the person could be lied to in

the ecclesiastical environment or cheated in the ecclesiastical

environment, or another part of it is depriving them of

property in the ecclesiastical environment, and if the

individual somehow consented as an ecclesiastical matter

to even the deprivation of his property, then some spectre

of an argument perhaps could be raised that as long as

it is confined to the ecclesiastical environment, then

it is only a religious doctrine.

230

When you get into the last element, destruction,

and your Honor may or may not hear, depending on how the

evidence comes in, words in the Church of Scientology are

very significant.

231

Someone who undergoes Scientology training is

drilled on the specific meaning of words. For instance,

when you do this PTS and PT Pact, you have to go and look

up in a dictionary the exact meaning of every word. And

these courses dealing with the definitions of words relate

to the fact that you have to have a concrete understanding

in your mind of what the word means.

So if you take the word "destroy," these Guardian's

office agents that implemented these policies -- and I have

seen numerous course pacts of Guardians office agents who

did this -- have to go and check off that they understand

specifically what the word means, specifically what the word

"destroy" means in all of its context.

If, as my brother might argue, the word "destroy"

only means spiritual destruction, then someone who has

undergone the training to implement the Fair Game Doctrine

would be limited to the definition in the training manuals.

Well, as Your Honor may see in a voir dire hearing,

for example, that is simply not what happened in training

Guardian's office agents to go destroy enemies. They were

trained, if we ever get into a voir dire hearing on this

issue -- they were trained to go out in the temporal world

and do things like putting LSD in toothpaste, putting drugs

in drinks, framing journalists --

MR. LITT: I thought we weren't getting into this.

MR. FLYNN: That is what they are trained to do.

But assuming, even, that some idea of spiritual

destruction was only what they are trained on, which is simply

232

not the case, but further assuming that, if members of the

church believed that the Fair Game Doctrine was soley an

ecclesiastical doctrine which has got nothing to do with

reality, but even if they believed it and even if Mr. Armstrong

during the course of his tenure in the church believed that

it was a purely ecclesiastical doctrine which has got nothing

to do with reality, once they engaged in conduct outside

that belief, in granting full scope of religious belief to the

doctrine itself -- once they engaged in conduct outside

that belief which resulted in some type of conduct in the

temporal world, such as taking photographs, subjecting

Mr. Armstrong to some of the things he was subjected to,

or suing him in the Los Angeles Superior Court --

Once that conduct was injected into the previously

ecclesiastical environment, the Supreme Court has said over

and over and over again, one, religions can't commit fraud

and, two, once they engage in conduct there is a big dichotomy

between belief and conduct. When it becomes expressed, it

is cognizable in a civil or criminal court.

Now, I would suggest to the court that if Your

Honor followed the alternative to that, the logical

alternative, namely that the Fair Game Doctrine is purely

ecclesiastical, and even if it somehow got expressed by mistake

of a staff member who went out and did something in the

temporal world to Mr. Armstrong, aside from hiring private

detectives to smash into his car, assault him on the street,

things that Judge Cole in this court recognized -- aside

from doing things like that, if this court were to adopt

233

the view that words such as are expressed in the Fair Game

Doctrine are, one, purely ecclesiastical and, two, even if

understood by staff members is purely ecclesiastical and,

three, even having that understanding the staff member could

thereafter go out and engage in conduct which was detrimental

to Mr. Armstrong -- if that rule was followed, that the court

could not recognize that type of conduct as being actionable

in a civil court, society would be totally -- we would be

suffering totally from anarchy. There would be no law.

Any religion could adopt any law whatsoever, claim that it

was religious doctrine and lie to, sue, cheat or destroy

or take property on the premise that they are doing it under

the belief that it is religious.

If Your Honor adopted that logical approach,

then either one of two things would happen. Either all of

the religious doctrine in every religion would have to be

cognizable in order to make it somehow legitimately involved

in civil court, or Your Honor would have to do what every

court in the country does and particularize between what

is legitimately religious doctrine on a threshold finding and

what has to do with the civil courts.

Now, with regard to this particular case,

Mr. Armstrong, as the testimony will show, at least initially

in voir dire or, if the jury is waived, before the court

or before the jury, if it is permitted, was in a state of

terror after he left the Church of Scientology because of

what he knew and because he knew that the Fair Game Doctrine

was going to be applied against him. When the S. P. Declare

234

came out and it said very temporal, nonspiritual things,

like he had lied about Hubbard, he had stolen documents and

a host of some 20 or 25 other things that he had allegedly

done, that, as the evidence will overwhelmingly show if we

ever have to prove it from former Guardian's office agents,

former staff members who knew what the Fair Game Doctrine

implies, in Mr. Armstrong's mind subjected him to an immediate,

unended, open attack and assault by anyone in the Church of

Scientology; and that is, in effect, what began. That

is what drove Mr. Armstrong to see me.

So all of that evidence goes to his state of

mind; and if Your Honor wishes to put Mr. Armstrong on the

witness stand right now and ask him all the questions you

want relative to his state of mind, I would suggest to the

court you will see, in very candid terms, where Mr. Armstrong's

mind was at the time all of this took place. But, in any

event, his state of mind with regard to hiring a lawyer when

he knew what he was going to be subjected to, we submit,

was justified. That is one reason why the Fair Game Doctrine

should come into evidence.

Probably more importantly, and the reason we

argued at length in our brief, which I won't completely

reiterate, which was recognized in the Allard case, is that

there are already on this record, going to the fundamental

issues in this lawsuit, namely who owns or had the right

to possess these documents, totally 180 degree inconsistent

statements, not only between the plaintiff and the intervenor

but inconsistent statements on the part of the intervenor

235

herself, all of which goes to the issue of credibility.

Now, the sequel to the Fair Gage Doctrine, which

I don't intend to introduce into evidence, but which fleshes

it out a little bit, is called TR-L, Trained Routine for

Lying under oath. It is a written policy of the Church of

Scientology where Guardian's office agents or witnesses are

drilled on horn to lie under oath. It has been recognized

and introduced in other judicial proceedings.

236

It is a formal training procedure. In fact,

I will tell the court right now that every witness who

appears on this witness stand for the Church of Scientology

will have gone to witness school and will have been drilled

in that policy.

MR. LITT: Your Honor, this is really out of hand.

I prepared these witnesses and that is false. I am the

person who prepares the witnesses.

Mr. Flynn has no right to make these kinds

of allegations. This is just out of control. I don't

have anything else to say.

THE COURT: I don't know whether it is in control

or out of control in a sense because, I suppose, this may

be the subject of another in limine motion as to whether

he is permitted to cross-examine these witnesses on the

subject. If he has a reasonable basis for believing this

is the truth, it may be he is entitled to go into it. I

don't know.

MR. FLYNN: Some of my basic witnesses, including

probably the most significant witness in this case, was

drilled and went to witness school for the IRS proceeding

in which she didn't pass witness school. They dropped

her as a witness.

But in any event, the Fair Game Doctrine says,

"Lie to and cheat." It is hard for the court, I am sure,

to try to comprehend in a realistic manner that someone

could really believe that an enemy, a suppressive person,

can justifiably be lied to and cheated, but it is the policy

237

of the Church of Scientology to lie and cheat enemies as

a matter of course.

That is why the Judge, I submit, in the Allard

case introduced it on the issue of credibility because

the witnesses in that, just as Mary Sue Hubbard will testify

here, and other witnesses for the Church of Scientology

will testify here, are entitled to as a matter of policy to

lie to enemies of the church, of which Mr. Armstrong

is one of the top enemies in the world now.

So, on the issue of credibility the Fair Game

Doctrine, I submit, should come into evidence if we can

make a prima facie showing that it is the policy of the

organization to lie to Mr. Armstrong and/or lie, period,

and I submit to the court that we will be able to make an

overwhelming showing to that effect if that is necessary.

So, under the Allard case we submit on the

issue of credibility it is admissible, and again on that

point, that issue was fully resolved by the California

Court of Appeal with regard to its admissibility.

The claim that Mr. Litt made at the outset

of this proceeding that the First Amendment issue was not

raised with respect to that is simply shown by a reading

of the Allard case, which I don't have in front of me right

at the moment, but right at the beginning the paragraph

or two right before where the court is talking about the

credibility, that paragraph relates to religious doctrine.

Right at the end of where the court is talking

about religious doctrine, it is talking about the

238

introduction of the Fair Game Doctrine goes back into the

same consideration, and says that it is not inadmissible

because it was religious doctrine.

So, given all of that, your Honor, we submit

that on the state of mind and on the credibility of the

witnesses, the reason we are in this courtroom is because

of the Fair Game Doctrine.

THE COURT: Okay, Mr. Litt?

MR. LITT: Well, let me start out with the inconsistent

statements. The inconsistent statements that Mr. Flynn

refers to are inconsistent statements, and there are such

inconsistent statements made because Mr. Armstrong took

the documents and nobody else knew what he had except him.

So when the church first filed the action, it said they

are our documents. It turns out that most of them were

Mr. Hubbard's documents, so then the church changed based

on Mr. Armstrong's testimony and said, "They are

Mr. Hubbard's documents." And that is this major inconsis-

tency. This is the exemplification apparently of the policy

of lying that Mr. Flynn is referring to.

Now, we really have to break this up into two

parts. There is an evidentiary part and there is a First

Amendment part. The defense wants to say and presumably

this would apply to any bad, quote bad organization that

they are bad, and they have bad policies and those bad

policies are to rob. Therefore, we can show that these

have these bad policies to rob in a burglary prosecution.

What is the difference?

239

Somebody is a member of an organization, gang.

This comes up quite a bit in criminal cases, a gang member-

ship, and the cases generally in discussing something as

attenuated as that, just membership in a gang for purposes

of showing therefore that they are more likely to do this,

it is not permitted just as an evidentiary matter.

What Mr. Flynn really lays out here is he wants

to say they have a policy to do A, and therefore they did

A. Well, it doesn't work that way. Prove A.

You don't prove A by proving a policy to do A.

It is not habit or custom evidence. You can't use habit

or custom which talks about routine activities as an eviden-

tiary theory to admit policies, so that the first problem

that exists is that the -- this type of evidence which

is, I think the court has heard enough to know, is extremely

highly-charged and extraordinarily prejudicial is being

used to substitute for proof of facts. It is really an

effort to say that any allegation we make is true because

look at this policy. That is the purpose. That is the

effect of it, and it is, I don't care if this were not

a religious organization, and I don't care if the policy

were go after enemies in the second World War.

The impact of that is overwhelmingly prejudicial.

It is not permitted to prove acts through policies except

in extraordinary limited circumstances which do not apply

here, but that is not -- that is only half of the problem.

Mr. Flynn refers to the Allard case. The only

thing I can say about the Allard case is that the full

240

presentation of the religious context of this was not presented

to that court, and frankly I am not presently prepared

to do it fully, but I will make a partial offer of proof

and we will supplement it so it, at least, is in the record

in this case. But I would like the court to be aware.

Mr. Flynn quotes from a one-paragraph statement

in a policy letter of Mr. Hubbard made in 1967. Now I

want to show that the court under the context of this policy

letter which is pulled out of context and which intrudes,

as I will show, into religious belief and doctrine. I

want to quote from the first mention that at least I have

been able to determine of this in Scientology materials.

It is from a policy letter of 1 March 1965 called

"Suppressive Acts. Suppression of Scientology and Scientolo-

gists. The Fair Game Law."

Now the court should understand. the very title

shows the problems that we face. "Suppressive acts" are

Scientology terms. They are religious terms. They refer

to acts that within Scientology are considered against

the interests of Scientology.

241

There are a lot of things there. For instance,

testifying in court against a Scientologist, without opposing

it, is considered a suppressive act. Okay. Scientology,

as many religions, just using that one example, they have

an internal justice system; and you must make recourse to

that within Scientology. You do not sue Scientologists in

the civil courts. Those disputes are to be resolved

internally. The Jewish tradition was identical, as one

example.

Now, this document says, this first mention of

Fair Game says, "A suppressive person or group is one that

actively seeks to suppress or damage Scientology or

Scientologists by suppressive acts. Suppressive acts are

acts calculated to impede or destroy Scientology or

Scientologists." And it goes on at great length, which I

am not going to read.

(Reading:)

"A suppressive person or group

becomes fair game. By fair game is meant

without right for self, possession or position,

and no Scientologist may be brought before

a Committee of Evidence or punished for any

action taken against a suppressive person or

group during the period that that person is

fair game. A Committee of Evidence may be

called by any convening authority who wishes

more concrete evidence of efforts to suppress

Scientology."

242

And then it talks about amnesties for people

declared fair game. The court should understand that fair

game refers mainly to Scientologists.

In a later policy letter it talks about the fact

that for commission of certain Scientology crimes or

suppressive acts that one can have cancellation of

certificates, cancellation of classifications and awards

and can become fair game.

Then it goes on to say, in another policy letter

written by Mr. Hubbard also in 1965 -- he says that "When

a person announces he is no longer a part of a group, he

has rejected the group. He has also rejected its codes and

rules. Of course, he has also rejected the protection to

which he was entitled as a group member. It does not make

sense to extend the protection of the group to the person

seeking to destroy the group. That is like encouraging a

disease. Hence, we have a fair game law."

And then it goes on to talk about -- let me see.

It goes on to talk about the problem of sort of making this

policy too expansive. It says, "Students or PC's" -- that

is a reference to PreClears -- "who seek to resign or leave

courses or sessions and refuse to return, despite normal

efforts, become suppressive of that course." And then in

this context it talks about the fact that in such cases there

may be a cancellation or the fair game law may be invoked.

Now, I am reading these to give the court a sense

of the context of this Fair Game Doctrine, which we will --

I don't have it yet. The case has a lot of things going.

243

We can demonstrate, and we will be prepared to demonstrate,

that the type of policy that I am describing here is a typical

religious policy that is not unusual.

In another document from 1965, a policy letter

from Mr. Hubbard, it states, "Only when this," referring

to a waiver or quitclaim, "is signed may the student" --

this is referring to a Scientology student -- "have his course

fee returned, but no other fees, as he accepted that service.

The ex-student should realize this makes him fair game and

outside our justice codes. He may not have recourse of any

kind beyond refund and after signing can only return to

Scientology as per policy on fair game."

In another document it says, "Civil court

action --" remember that I said that Scientologists could

not be sued by other Scientologists. It says, "Civil court

action against S. P.'s to effect collection of moneys owed

may be resorted to as they are fair game."

Then in a document from the end of 1965, entitled

"Suppressive Acts, Suppression of Scientology and

Scientologists, the Fair Game Law," which replaces the document

that I began with, it says, "By fair game is meant may not

be further protected by the codes and disciplines of

Scientology or the rights of a Scientologist."

Now, let me read to you from the testimony of

Gerald Armstrong, not in this case but in another case where

he was being called as a purported expert, among other things,

on fair game. This is from the case of Cooper versus Church

of Scientology. It is pending in this district. On what

244

the meaning of the doctrine itself is, not on what he says

the church does but on the meaning of the doctrine itself,

in answer to a question by me, his answer was the following:

(Reading:)

"So, okay. I would say these two

things. He," referring to a suppressive

person, "who has been declared has no rights

as a Scientologist; and a Scientologist who

commits acts against him is not actionable

within the Scientology justice system,"

although I will tell the court that that is no

longer true. But that is his description.

"So that pretty well covers the

attitude or the direction that is given toward

the handling of a suppressive person, and

that direction or attitude is fair game."

Mr. Armstrong says that as to what the doctrine

was it is what I have just said. Now, the policy that

Mr. Flynn is so fond of quoting is not a policy that is on

fair game. In fact, it is from a policy which has since

been cancelled which talks about penalties for lower

conditions.

There are various conditions within Scientology.

I hope the court is getting the sense of the context in which

we will deal with this and what Mr. Flynn is asking us to

have to put on trial here. That is why I am going through

this with the court, and this is really only scratching the

surface.

245

These are the religious writings that guide the

Church of Scientology that I am now having to interpret for

this court, and this is only an indication of what it is

and why it cannot come into evidence. This policy is not

a policy on fair game. It is not a policy on suppressive

persons. It is not a policy on suppressive acts. It is

a penalty on various conditions, conditions relating to whether

or not the person has questions or reservations. There have

been written over the years by Mr. Hubbard various policy

letters that talk about different conditions, and they are

states of mind in relationship to Scientology; and one of

those conditions is the condition of enemy. A person can

be declared, within Scientology, an enemy and remain a

Scientologist. And if we have to, we will present evidence

from people who have been declared and are Scientologists

today.

246

So in this context of the conditions being

material in relationship to state of mind regarding

Scientology in a document entitled "Points For Lower Conditions"

it states:

"Mini SP Order. Fair game may be deprived

of property or injured by any means by any

Scientologist without any discipline of

the Scientologist."

Then goes on: "May be tricked, sued or lied

to or destroyed."

The four words that I can assure the court

I have heard more times since I have been involved in Scien-

tology litigation than any other four words one could name

because it is grist for the mill of anybody who wants

to be involved in litigation with the church. You take

these words, you take them out of context. You throw

them out. You frighten people. You say that this

organization has a policy of telling people to go out

and destroy anybody who is an enemy.

It is so far -- this categorization which

is no longer -- if the court wants, and I will just represent

at this point so i can cut things short, that I can go

through and track the later descriptions of enemy which

do not use this language. It is true and the Fair Game

Doctrine that is, the use of the term "fair game" was

canceled, and Mr. Hubbard said quite straight-forwardly,

"It has an adverse public relations effect," meaning that

it gets misconstrued.

247

The doctrine that I have described, the doctrine

that says that Scientology will not provide access to

its internal systems for those who are opposed to it remains

true.

So, in that sense what Mr. Flynn says is right,

the real Fair Game Policy hasn't been canceled. What

it meant hasn't been canceled with one modification, which

has to do with the fact that any crime committed by a

Scientologist today is actionable within Scientology.

I have not put forward at this point the materials

that we will, if necessary, provide to the court from

religious experts, from people who have been through this

process, and this was not prepared in Allard, your Honor.

I am sorry. It simply wasn't. What I have just told

the court and the context of this was simply not presented.

I have checked and there is no indication

that a serious presentation and explanation and offer

of proof of the First Amendment elements of the doctrine

were involved.

If this doctrine is allowed to be introduced,

you are opening the door to the introduction of religious

doctrine. If they want to prove fact A, let them prove

fact A. That is the normal course.

Now, the other theories, this is the real

sticking point, especially in light of the court's rulings,

Mr. Armstrong's state of mind is relevant. Mr. Armstrong

therefore can say whatever he thinks. He can distort.

He can refer to religious doctrine. He can do anything,

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and somehow it becomes relevant because whatever is in

his mind is all of a sudden all right.

The court must place some limitations on that,

at least where it intrudes into First Amendment issues

because you will be requiring us otherwise to try in this

court the meaning of religious doctrine.

The court cannot -- we have cited cases, Serbian

Archdiocese, there is a whole line of cases. You cannot

try religious doctrine. This court and a jury sitting

there cannot determine what that means. It is not allowed,

and yet Mr. Flynn stands up and says this is the most

important thing. Taking the church's religious doctrine

and putting it on trial is the most important thing for

their defense.

Well, if that is the most important thing,

then one or another thing is going to happen. Either

this court is going to allow gross invasion of constitutional

rights and First Amendment rights or the court is going

to require them to prove a case and to prove this affirmative

defense in the normal way and not by resort to generalized

claims based on internal doctrine about what this organization

does and how bad it really is.

THE COURT: Well, gentlemen, I guess if I were to

rule in some ways, I would be doing things that were prepos-

terous, according to Mr. Flynn, and if I rule the other

way, I will be doing things that are totally outrageous

and incredible and stamping on the First Amendment. So

I really probably should abdicate, but I don't want to

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do things that are either preposterous or stamp on the

First Amendment.

Be that as it may, it seems to me that we

come right back down to where we were and where we have

been. Once you start on a logical train, you follow that

logical train and it seems to me it is one thing to talk

about religious principles. It is something else to talk

about how they are applied in practice and how they are

interpreted in practice and whether it results in conduct

which may be criminal or tortious.

It seems to me that obviously the Allard case

stands for exactly what is presented there and nothing

more or nothing less. On the evidence that was presented

there it was permissible to receive that evidence in evidence.

There was no problem. The Court of Appeal bought that.

This is a different case and there may be

different problems, but it seems to me coming back to

why Mr. Armstrong took these particular documents and

turned them over to his lawyer and/or amassed them and

turned them over to his lawyer, getting into his state

of mind, the reasonableness of his conduct, whether he

acted in good faith, whether he was really taking them

for some other purposes, whether or not as an objective

matter there was some reasonable basis for his belief.

So, it seems to me that to the extent that it can be supported

through testimony that this is something other than simply

a religious principle, that the evidence would be admissible.

So, to the extent that it affected, amounted to conduct,

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I would assume we are talking about not principles but

how they are actually applied in practice, in reality,

there may be two sides to the coin, but it seems to me

that is not something about which I can exclude evidence.

So far as credibility of witnesses is concerned

of course, any time you permit evidence, you are going

to have evidence that bears upon the subject of credibility

of witnesses. Obviously this language that was in this

1965 or whatever certainly would be very detrimental to

any witness' credibility if he said I believed that. I

accepted it and followed it.

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I suppose if we are going to get into whether